Judgment

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 consideration in this appeal is whether the Coal Mines Provident Fund Commissioner is a public officer as defined in Section 2(17) of the Code of Civil Procedure.

2. Section 80 of the Code requires a notice to be issued as prescribed before instituting a suit against a public officer in respect of any act purporting to be done by such public 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 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.

3. 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 description 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."

4. 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 appellant 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 establishment 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; (h) the Coal 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 Providend 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.

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(4) The method of recruitment, salary and allowances, discipline and other conditions of service of the Coal Mines Provident Fund Commissioner shall be such as may be specified by the Central Government and such salary and allowances shall be paid out of the Fund."

5. 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 conditions of service are such as may be specified by the Central Government. The salary and allowances are paid out of the fund. The Commissioner may exercise the powers exercisable by the Central Government under the Act or scheme framed thereunder on delegation of such power under Section 10C.

6. It will be clear from these provisions, that an officer in the service of 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 ma