MOTI MARRY Vs. SUPERINTENDENT LADY ELGIN HOSPITAL

JUDGEMENT

(1.) THIS appeal, which is within the jurisdiction of Hon'ble Single Judge of this Court under High Court Rules and Orders, has been placed for consideration of this Division Bench under special circumstances and as a result of reference made by the Hon'ble Single Judge on 3 -11 -1992.

(2.) THE appellant was a contingency paid employee at the Lady Elgin Hospital, Jabalpur and her services were terminated by order dated 28 -9 -1978 as no longer required. The appellant challenged the legal validity of the said termination by filing a Civil suit before First Civil Judge Class I, Jabalpur where it was subject matter of Civil Suit No. 116 -B/79. In her suit, the appellant prayed for a decree declaring her terminatiton illegal and granting all consequential bonefits. The learned trial Judge by its judgment and decree dated 24 -12 -1982, dismissed the said suit on a finding that the order of termination was not illegal. The appellant thereafter preferred an appeal under Section 96, Civil Procedure Code before first Addl. Judge to the Court of District Judge, Jabalpur (later on transferred to 8th Addl. Judge to the Court of District Judge, Jabalpur) where it was subject -matter of Civil Appeal No. 1 -B/85. The learned lower appellate Court by its judgment and decree dated 12 -3 -1985 affirmed the judgment and decree of the learned Trial Court. It appears that during the pendency of this appeal, the appellant filed an application on 9 -11 -1992 under Order 41, Rule 27, Civil Procedure Code seeking permission to adduce additional evidence consisting of a letter dated 22 -3 -1980 which, according to the appellant, was sufficient to indicate that the order of termination was punitive in nature. The said letter of respondent No. 1 sought to communicate letter dated 5 -3 -1980 of the Dean, Medical College, Jabalpur, the Respondent No. 2, of certain terms of compromise of the dispute. The learned lower appellate Court found no justification for admitting this additional evidence and dismissed the said application. The appellant, undaunted by the aforesaid failure, preferred the present second appeal under Section 100, Civil Procedure Code in this Court. This Second Appeal was heard by Hon'ble Shri Justice D.M. Dharmadhikari, who, by his judgment dated 29 -11 -1990, held that the application of the appellant under Order 41, Rule 27 was illegally and unjustifiably dismissed. According to the learned Judge, the documents sought to be introduced in evidence were relevant to the decision of the most vital question involved in the appeal and hence, the application under Order 41, Rule, 27 Civil Procedure Code should have been allowed. Learned Judge therefore held that 'the application under Order 41, Rule 27, Civil Procedure Code filed by the appellant is allowed and the documents filed with the application be taken on record.' The learned Judge thereafter noticed Sections 28 and 29 of the Administrative Tribunals Act, 1985 (hereinafter referred to as the Act) and held that the jurisdiction of the first Appellate Court for dealing with this appeal after remand has been taken away and conferred on the State Administrative Tribunal, Jabalpur. The learned Judge therefore transferred the appeal to the said Tribunal for decision in accordance with law.

(3.) CONSEQUENT to the aforesaid order of the learned Chairman of the Tribunal, the appeal was placed for consideration of learned Single Judge again. The learned Judge having considered the entire controversy, was of the opinion that the matter involves important legal questions which, in the ends of justice be decided by a larger Bench of this Court. The learned Judge also formulated 4 following questions which require specific consideration: - -