http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: COAL MINES PROVIDENT FUND COMMISSIONER

       Vs.

RESPONDENT: RAMESH CHANDER JHA

DATE OF JUDGMENT31/01/1990

BENCH: FATHIMA BEEVI, M. (J) BENCH: FATHIMA BEEVI, M. (J) SAIKIA, K.N. (J)

CITATION:  1990 AIR  648            1990 SCR  (1) 181  1990 SCC  (1) 589        JT 1990 (1)   115  1990 SCALE  (1)96

ACT:     Code  of  Civil  Procedure,  1908:  Sections  2(17)  and 80--Coal Mines Provident Fund Commissioner--Whether  ’public officer’.

HEADNOTE:     Respondent instituted a suit against the appellant,  the Coal  Mines Provident Fund Commissioner without a notice  as required under section 80 C.P.C. Appellant objected  stating that he was a public officer within the meaning of the  term occurring in section 80 C.P.C. and that the suit was  incom- petent.     The  trial court overruled the objection and  held  that the  appellant  was  not a public officer.  The  High  Court confirmed the same. Aggrieved,  the  appellant,  has preferred  this  appeal  by special leave. Allowing the appeal, this Court,     HELD:  1. I The courts below have erred in holding  that the  Coal Mines Provident Fund Commissioner is not a  public officer  within the meaning of the term in section  2(17)(h) of the C.P.C. The word ’service’ in section 2 (17)(h) C.P.C. must  necessarily  mean  something more  than  being  merely subject  to the orders of Government or control of the  Gov- ernment.  To  serve means "to perform function; do  what  is required  for".  The Commissioner  appointed  by  Government performs  the  functions  as envisaged in the  Act  and  the scheme thereunder. When he is actually acting in the capaci- ty  of Provident Fund Commissioner, he does not cease to  be an officer in the service of the Government. [184E-F; 185F]     1.2  The fact that the Commissioner receives the  salary and allowances out of the Coal Mines Provident Fund and  not from the Government during the tenure as Commissioner  would make no difference when the description as an officer in the service of the Government is answered. [184D] 182     2. In the present case, the Provident Fund  Commissioner holds  the office of Commissioner on appointment by  Govern- ment  by virtue of his office. His services are  temporarily placed  at the disposal of the Board constituted under  Sec- tion  3 of the Coal Mines Provident Fund  and  Miscellaneous

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

Provisions Act, 1948. He does not, therefore, cease to be an officer in the service of the Government. The payment of his pay out of the Fund does not alter his status as  Government employee. [185E]     Liquidator  of  Society  Sangakheda  Kalan  Co-Operative Bank, Hoshangabad v. Ayodhyaprasad Shiamlal, AIR 1939 Nagpur 232;  Kuppu  Govinda  Chattiar  v.  Uttukottai  Co-Operative Society, AIR 1940 Madras 831; Vishnu Wasudeo Joshi v. T.L.H. Smith  Pearse, AIR 1949 Nagpur 362; Commissioner  of  Wakfs, Bengal  v. Shahebzada Mohammed Zahangir Shah, AIR 1944  Cal- cutta  206 and Kamta Prasad Singh v. The  Regional  Manager, F.C.I., AIR 1974 Patna 376, referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1932  of 1982.     From the Judgment and Order dated 7.9. 1981 of the Patna High Court in C.R. No. 341 of 1980 (R).     M.C.  Mahajan, Hemant Sharma and Ms. A.  Subhashini  for the Appellant. M.P. Jha for the Respondent. The Judgment of the Court was delivered by     FATHIMA  BEEVI,  J.  This appeal  by  special  leave  is against  the  judgment dated 7.9.1981 of the High  Court  of Judicature at Patna, Ranchi Bench, Ranchi in Civil  Revision No. 341 of 1981. The short question that falls for consider- ation  in  this appeal is whether the Coal  Mines  Provident Fund  Commissioner is a ’public officer’ as defined in  sec- tion 2(17) of the Code of Civil Procedure.     Section 80 of the Code requires a notice to be issued as prescribed before instituting a suit against a public  offi- cer  in  respect of any act purporting to be  done  by  such pubic  officer  in  his official  capacity.  The  respondent herein  instituted  a suit against the  appellant--the  Coal Mines  Provident Fund Commissioner--without a  notice  under section 80 C.P.C. The objection in this behalf was  repelled by the trial court 183 and  the  High Court holding that the Coal  Mines  Provident Fund Commissioner is not a public officer. According to  the appellant  the Commissioner is a public officer  within  the meaning  of the term occurring in section 80 of the  C.P.C., and, therefore, the suit is incompetent.     The term ’public officer’ is defined in section 2(17) of the  Code of Civil Procedure. Public Officer means a  person falling under any of the descriptions in clauses (a) to (h). It  is  contended on behalf of the appellant that  the  Coal Mines  Provident Fund Commissioner falls under the  descrip- tion in clause (h) which reads as under: "(h)  Every Officer in the service or pay of the  government or remunerated by fees or commission for the performance  of any public duty."     It  is necessary to refer to the relevant  provision  in the  Coal Mines Provident Fund and Miscellaneous  Provisions Act, 1948 for the purpose of determining whether the  appel- lant answers this description. Under section 3, the  Central Government  may,  by notification in the  Official  Gazette, frame  the Coal Mines Provident Fund Scheme for  the  estab- lishment  of a provident fund for employees and specify  the coal  mines to which the said scheme shall apply.  The  fund shall vest in, and be administered by the Board  constituted under section 3A. The Board thus constituted consists of (a) a Chairman appointed by the Central Government; (b) the Coal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

Mines  Provident Fund Commissioner, ex-officio;  and  others specified in the section. The other relevant provisions read thus: "3B.  The  Board of Trustees constituted  under  section  3A shall  be a body corporate under the name specified  in  the Notification  constituting it, having  perpetual  succession and  a  common seal and shall by the said name  sue  and  be sued. 3C.  Appointment  of Officers: (1)  The  Central  Government shall appoint a Coal Mines Provident Fund Commissioner,  who shall be the Chief Executive Officer of the Board and  shall be subject to the general control and superintendence of the Board. 184 4. The method of recruitment, salary and allowances,  disci- pline  and  other conditions of service of  the  Coal  Mines Provident  Fund Commissioner shall be such as may be  speci- fied  by the Central Government and such salary  and  allow- ances shall be paid out of the Fund."     It  is  thus seen that the Commissioner  is  an  officer appointed  by the Central Government as the Chief  Executive Officer of the Board. Though subject to the general  control of  the Board, discipline and the condition of  service  are such  as  may be specified by the  Central  Government.  The salary and allowances are paid out of the fund. The  Commis- sioner  may exercise the powers exercisable by  the  Central Government  under  the Act or scheme  framed  thereunder  on delegation of such power under section 10C. It  will be clear from these provisions that an  officer  in the  service  the  Government by virtue of  his  office,  is appointed as Commissioner by the Government and he  performs public  duties. The fact that the Commissioner receives  the salary  and  allowances  out of the fund and  not  from  the Government  during the tenure as Commissioner would make  no difference when the description as an officer in service  of the Government is answered.     The word ’service’ in section 2 (17)(h) must necessarily mean something more than being merely subject to the  orders of  Government or control of the Government. To serve  means "to perform function; do what is required for". The  Commis- sioner  appointed  by Government performs the  functions  as envisaged  in the Act and the scheme thereunder. When he  is actually  acting in the capacity of Provident  Fund  Commis- sioner, he does not cease to be an officer in the service of the Government.     In  Liquidator of Society Sangakheda Kalan  Co-operative Bank, Hoshangabad v. Ayodhyaprasad Shiamlal, AIR 1939 Nagpur 232, Pollock, J. held that liquidator is a public officer as he  is  appointed by the Government  and  discharges  public duties.  This  decision is distinguished  in  Kuppu  Govinda Chettiar v. Uttukottai Co-operative Society, AIR 1940 Madras 831  holding that Deputy Registrar acting as  Liquidator  is not a public officer. The reasoning adopted is that  qualiq- uidator  he is not an officer in the service of the  Govern- ment.     In Vishnu Wasudeo Joshi v. T.L.H. Smith Pearse, AIR 1949 Nagpur 362 it was held that a person who was a member of the Indian 185 Educational  Service  but whose services were  lent  to  the Rajkumar  College, Raipur as principal is a  public  officer within  section  2(17)(h)  and did not cease to  be  in  the service of the Crown by reason of deputation.     In Commissioner of Wakfs, Bengal v. Shahebzada  Mohammed Zahangir Shah, AIR 1944 Calcutta 206 the Court said that the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

expression  "public duty" refers to duty concerning  to  the affairs  or service of the public and the word ’public’  may include  any class of the public or any community.  In  this view, the Commissioner of Wakfs who functions in relation to such  public  endowments in general was held  to  perform  a public  duty  and, therefore, a public  officer  within  the meaning of section 80 of the Code.     In  Kamta Prasad Singh v. The Regional Manager,  F.C.I., AIR  1974 Patna 376 the question arose whether the  officers of  the Food Corporation of India are public  officers.  The Corporation is a body corporate. The Court held that Govern- ment does not include a Corporation and that officers of the Corporation are not in the service of Government and are not public officers. These are cases where the concerned officer did not hold his office in the Corporation by virtue of  his being a Government employee. In the present case, the Provi- dent  Fund Commissioner holds the office of Commissioner  on appointment  by  Government  by virtue of  his  office.  His services  are  temporarily  placed at the  disposal  of  the Board. He does not, therefore, cease to be an officer in the service of the Government. The payment of his pay out of the Fund  does not alter his status as Government  employee.  We are,  therefore, of the opinion that the courts  below  have erred  in holding that the Coal Mines Provident Fund  Commi- sioner  is  not a public officer within the meaning  of  the term  in  section 2(17)(h) of the  C.P.C.  We,  accordingly, allow  the appeal and remit the case to the trial court  for disposal in the light of what has been stated above. G.N.                                   Appeal allowed. 186