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SA/4/1993 15/ 15 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 4 of 1993
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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G
S R T C - Appellant(s)
Versus
KISHOR
B SHAH - Defendant(s)
=========================================================
Appearance :
MR
PRANAV G DESAI for
Appellant(s) : 1,
MR HASIT H JOSHI for Defendant(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 21/01/2011
ORAL
JUDGMENT
1. Present
Second Appeal is filed by the Gujarat State Road Transport
Corporation – appellant – original defendant posing the
substantial questions of law as follows:
(1) Whether
the Civil Court has jurisdiction to try the dispute between the
employer and employee when the employee is a workman within the
meaning of Industrial Disputes Act, 1947?
(2) Whether
the Appellate Court is wrong in setting aside the finding given under
Order 2 Rule 2 of the Code of Civil Procedure by the trial Court?
(3) Whether
the Appellate Court has power to sit over the finding given by the
departmental authority under the provisions of Code of Civil
Procedure?
(4) Whether
the Appellate Court has power to set aside the judgment and decree
passed by the trial Court in the facts and circumstances of the case
under Order 41 of the C.P.C.?
2. The
short facts of the case briefly summarized are that the original
plaintiff – respondent herein filed Regular Civil Suit No. 147
of 1984 challenging the order of dismissal on various counts. The
respondent original plaintiff was serving as a conductor at Gondal
S.T. Depot. He was involved in a default case in 1980 for not issuing
tickets in spite of having collected the amount of the ticket and was
chargesheeted. After the inquiry, the Divisional Controller passed an
order reducing the plaintiff to minimum stage of scale. The said
order was confirmed in appeal. Thereafter, the respondent –
original plaintiff was once again involved in another default case
and show-cause notice was given and after inquiry he was dismissed
from the service. The respondent plaintiff had challenged even the
show-cause notice also by filing a suit and injunction application.
Thereafter, it was withdrawn with a liberty to file a fresh suit
after the order of punishment at the conclusion of the inquiry is
passed. Therefore, the aforesaid Regular Civil Suit No. 147 of 1984
was filed on the ground that the S.T. Corporation is a State under
Article 12 of the Constitution of India and he is entitled to
protection under Article 311 of the Constitution of India. It was
also contended that the entire issue has been prejudged and the order
of punishment is in violation of the rules of natural justice. He had
also challenged the inquiry and stated that the inquiry is without
jurisdiction. On the basis of the material and evidence the suit was
dismissed by the Civil Judge (S.D.), Gondal vide judgment and order
dated 31.12.1987.
3. Against
the said judgment and order, Regular Civil Appeal No. 14 of 1988 came
to be preferred before the Assistant Judge, Gondal, District Rajkot
by the respondent – original plaintiff on the grounds set out
in the memo of appeal. The lower Appellate Court allowed the appeal
filed by the respondent – original plaintiff setting aside the
impugned judgment and order passed in Regular Civil Suit No.147 of
1984 and also declared that the order bearing No.1586
dated 15.9.1982 is illegal and in violation of the principle
of natural justice and null and void. It also restrained the
appellant – original defendant from implementing the said order
of dismissal vide judgment and order dated 06.01.1992.
Therefore, the present
second appeal has been preferred by the appellant – Corporation
setting out the substantial questions of law as stated herein above.
4. Learned
counsel Mr. P.G.Desai submitted that as it was a case pertaining to
the disciplinary matter, even though the Corporation is State within
the meaning of Article 12 of the Constitution, still, it would be an
industrial dispute and the jurisdiction of the civil Court would be
barred. He further submitted that the respondent – original
plaintiff has filed one after another suit. He had challenged the
show-cause notice and thereafter he has filed the present suit
challenging the order of dismissal. He also submitted that on earlier
occasion lenient view was taken while imposing the punishment. But,
since it was second default after holding the regular inquiry, the
order of dismissal came to be passed which was challenged by way of
Regular Civil Suit No. 147 of 1984 which was dismissed. Learned
Counsel Mr. P.G.Desai, however, submitted that the lower Appellate
Court has proceeded on the wrong footing that there was violation of
rules of natural justice and the main emphasis which has been given
by the lower Appellate Court is that in the notice served by the
inquiry officer and the punishing authority, there was no mention of
the previous record of the respondent – plaintiff which has
been taken into consideration and therefore the respondent –
original plaintiff has been denied the right of making his
representation at the time of inflicting the punishment and therefore
the order of dismissal is in violation of the rules of natural
justice and therefore null and void. Learned counsel Mr. Desai also
submitted that the lower Appellate Court has failed to appreciate the
facts while referring to the judgment of Hon’ble Apex Court reported
in AIR 1964 S.C. P. 506. He pointedly referred to the fact that in
that case the facts were totally different, whereas, in the facts of
the present case, the fare
was collected which was misappropriated. There the case pertained to
non-issuance of ticket whereas here in this case after collecting the
amount of tickets, the same has been misappropriated. Learned counsel
Mr. Desai also submitted that even after filing of the suit the order
has been implemented and the respondent – plaintiff has
accepted the pension and gratuity without any protest and therefore
he is estopped from challenging the impugned order of dismissal. He,
therefore, submitted that the present second appeal may be allowed.
Learned counsel Mr. Desai also submitted that the reliance placed by
the lower Appellate Court for the purpose of considering the aspect
of jurisdiction is also misconceived in light of the judgments of the
Hon’ble Apex Court. Learned counsel Mr. Desai submitted that the
observations made by the lower Appellate Court that the respondent –
original plaintiff would be entitled to the protection under Article
311 is also misconceived. He, therefore, submitted that if the
present second appeal is not allowed, it would amount to confirming
the order of the lower Appellate Court whereby the order of dismissal
is set aside and it would lead to a situation where the
respondent-plaintiff may claim the benefits as if the order of
dismissal is not passed and it would be a premium for such
irregularities committed by the respondent – plaintiff
repeatedly. He has also referred to and relied upon the judgment of
the Hon’ble Apex Court in the case of R.S.R.T.C. & Ors. v.
Deen Dayal Sharma reported in 2010
AIR SCW 3108.
5. Learned
counsel Mr. Joshi appearing for the respondent – original
plaintiff has relied upon the judgment in the case of Gujarat
State Road Transport Corporation v. Ravji Tapubhai Goti
reported in 1998(2) GLR P. 1418 and submitted that
it has been discussed with regard to the jurisdiction of the Civil
Court and it has also been held that the jurisdiction of the civil
Court is not barred as the order inflicting penalty has been
challenged not only on the ground of standing order but based on
violation of common law or the disciplinary appeal rules. He,
therefore, submitted that the judgment in the case of Rajasthan
State Road Transport Corporation & Ors. v. Zakir Hussain
reported in AIR 1995
Supreme Court 1715 has also been considered. He
further submitted referring to the judgment of the Hon’ble Apex Court
in the case of Rajasthan State Road Transport Corporation and
Anr. v. Bal Mukund Bairwa reported in 2009
(2) GLH 348 that the jurisdiction of the Civil Court
is not barred and the conclusion arrived at by the courts below with
regard to the jurisdiction as well as order 2 rule 2 of C.P.C. are
just and proper. He submitted that if the respondent – original
plaintiff had a right to file a suit for challenging the show-cause
notice or the order inflicting the punishment in the departmental
inquiry on the ground of violation of natural justice and when the
findings have been given by the Court below on appreciation of facts,
this Court may not examine, in exercise of discretion under Section
100 of the Code of Civil Procedure in the second appeal, as there is
no substantial question of law which can be said to have been
involved. He emphasized and submitted that another aspect is with
regard to the inquiry conducted in violation of rules of natural
justice or the order of inflicting punishment which is harsh as has
been considered by the lower Appellate Court and this Court may not
consider in exercise of discretion under Section 100 of Code of Civil
Procedure in the second appeal. He, therefore, submitted that once
the jurisdiction of the civil Court is held to be valid and the order
is passed on appreciation of evidence, the present second appeal may
not be entertained. He submitted that the earlier suit filed
challenging the show-cause notice was withdrawn with the permission
to file fresh suit and therefore Order 2 Rule 2 does not have any
application as observed. He, therefore, submitted that the second
appeal may not be entertained.
6. In
view of rival submissions, it is required to be considered whether
the present second appeal can be entertained or not.
7. It
is well accepted that while exercising the discretion under Section
100 of C.P.C in second appeal, the scope is very limited and the High
Court can interfere only when there are substantial questions of law
involved. The Hon’ble Apex Court has laid down the guidelines with
regard to exercise of discretion as observed in a judgment in the
case of Gurdev Kaur and Ors. v. Kaki & Ors.
reported in (2007) 1 SCC P. 546 wherein it has been
specifically observed that the High Courts would have jurisdiction of
interfering under Section 100 CPC only in a case where substantial
questions of law are involved and those questions have been clearly
formulated in the memorandum of appeal. At the time of admission of
the second appeal, it is the bounden duty and obligation of the High
Court to formulate substantial questions of law and then only the
High Court is permitted to proceed with the case to decide those
questions of law. The language used in the amended section
specifically incorporates the words ‘substantial question of law’
which is indicative of the legislative intention. The legislative
intention is very clear that legislature never wanted second appeal
to become ‘third trial on facts’ or ‘one more dice in the gamble’. It
has been further reiterated and discussed as to the scope after the
amendment in the Code of Civil Procedure. The same view has also been
expressed in catena of judicial pronouncements including the judgment
in the case of State Bank of India & Ors. v. S.N.Goyal
reported in (2008) 8 SCC P. 92 and also in the case
of Narayanan Rajendran & Anr. v. Lakshmy Sarojini &
Ors. reported in (2009) 5 SCC P. 264. However,
even in the judgment reported in the case of Gurdev
Kaur (supra)
in
para 70 it has been clearly observed as to when the High Court can
exercise the discretion under Section 100 Code of Civil Procedure in
second appeal.
8.
The Hon’ble Apex Court has, at the same time, in its judgment in Ram
Swaroop v. State of Rajasthan reported in AIR 2008 SC
1747, observed in
para 17 as under:
“17. The
general rule is that High Court will not interfere with concurrent
findings of the Courts below. But it is not an absolute rule. Some of
the well recognized exceptions are where (i) the Courts below have
ignored material evidence or acted on no evidence; (ii) the Courts
have drawn wrong inferences from proved facts by applying the law
erroneously; or (iii) the Courts have wrongly cast the burden of
proof. When we refer to ‘decision based on no evidence’, it not only
refers to cases where there is a total dearth of evidence, but also
refers to any case, where the evidence, taken as a whole, is not
reasonably capable of supporting the finding.”
9. It
is required to be mentioned that initially the suit filed by the
respondent – original plaintiff was dismissed. It is also
contended with regard to protection under Article 311 of the
Constitution of India. However, it will have no application as the
respondent – original plaintiff cannot be a servant or the
employee of the State, but he is an employee of the Corporation and
protection under Article 311 would not be applicable to the employees
of a statutory Corporation. This aspect has not been focused properly
and the lower Appellate Court has misdirected while considering the
fact that the appellant Corporation is a “State” within
the meaning of Article 12 of the constitution of India.
10. Further,
what has been observed in para 15 by the lower Appellate Court is
that in the notice issued by the authority, there is no mention of
previous record of respondent – original plaintiff and
therefore the order of dismissal is in violation of the principles of
natural justice. There is no dispute that it was a second default and
it is also not in dispute that earlier a lenient view was taken and
lessor punishment was imposed. Therefore, on the second default,
after the inquiry was held and after providing an opportunity the
order of dismissal came to be passed which cannot be set aside
merely on a ground that this aspect has not been mentioned in the
notice which has been considered while inflicting the punishment. It
goes without saying that these aspects are required to be considered.
The respondent plaintiff had challenged the show-cause notice by way
of a suit, which came to be withdrawn, and after the order of
inflicting the punishment/dismissal, the suit came to be filed.
Earlier, Civil Suit No. 193 of 1980 for challenging the inquiry and
punishment was also filed raising the same contentions with regard to
violation of natural justice and the inquiry was not properly
conducted or that the plaintiff was not given reasonable opportunity.
It was withdrawn on 29.06.1984 with a permission to file fresh suit
and thereafter Regular Civil Suit No. 147 of 1984 has been filed.
Thus, one suit after another has been filed and Civil Suit No. 193 of
1980 has been filed challenging the entire inquiry on various grounds
and therefore the present suit would not have been maintainable.
11. Similarly,
the respondent – plaintiff had filed Special Civil Application
No. 4479 of 1982 before the High Court which has been rejected. He
had also preferred an application before the Industrial Tribunal
under Section 33 of the Industrial Disputes Act.
12. It
is in this background, though, normally, this Court would not
interfere with the order of the lower Appellate Court in exercise of
discretion under Section 100 of CPC in the second appeal, however,
the fact remains that there is no concurrent finding and the suit
filed by the plaintiff was dismissed and the lower Appellate Court
has misdirected and allowed the appeal in spite of the aforesaid
chequered history. In view of the fact that earlier suit No. 193 of
1980 was withdrawn, the present suit No. 147 of 1984 would not have
been maintainable. Further, even Special Civil Application No. 4479
of 1982 had been rejected. The respondent – original plaintiff
cannot say that the rule of natural justice is violated and the
inquiry has been conducted in violation of the rules of natural
justice and no opportunity was given to him. The respondent –
original plaintiff is, therefore, estopped from raising such a plea.
13. Further,
the plaintiff himself has accepted his contribution of the provident
fund and gratuity amount without any protest or reserving any right
which also reflects his attitude.
14. In
these circumstances, the moot question which is required to be
considered is that even if it is accepted that the jurisdiction of
the civil Court is not barred and the suit is maintainable, still,
whether in the facts and circumstances and on the basis of evidence
it would call for any interference. Admittedly, there is no dispute
about the fact that inquiry has been conducted and the charges have
been established as observed by both the Courts below. Therefore,
once an inquiry has been conducted and the charges have been
established, whether the lower Appellate Court could have interfered
and substituted its finding on the aspect of quantum of punishment
merely on the ground that the notice issued did not mention about the
previous history of the plaintiff.
15. As
discussed herein above, even the lower Appellate Court has accepted
about the inquiry having been conducted and the charges having been
established, the order has been passed on the ground that the notice
issued for the purpose of quantum of punishment has not referred to
the history which is said to have been taken into consideration and
therefore it has been stated that opportunity has been denied or the
rules of natural justice have been violated. One
fails to understand how the rules of natural justice can be
said to have been violated when the notice has already been issued
admittedly for the quantum of punishment. Therefore, admittedly when
the notice has been issued and opportunity has been given to the
respondent – plaintiff on the aspect of quantum of punishment,
the lower Appellate Court has misdirected in interfering with the
order with regard to the punishment on the ground of violation of
principles of natural justice. Therefore, the lower Appellate Court
having based the findings only on such trivial matter with regard to
the notice and not mentioning about the earlier history of the
original plaintiff and ignoring the entire evidence and had thereby
misdirected while setting aside the impugned judgment and order of
the trial Court and also the order of dismissal. It has also been
noticed and considered by the trial Court about the past conduct and
the earlier incident and after taking into consideration the repeated
occurrence the order of dismissal has been held to be justified
considering the aspect of quantum of punishment.
16. There
is no doubt that while considering such aspect, the doctrine of
proportionality has to be considered. It is also well accepted that
while considering such aspect, the doctrine of proportionality has to
be considered which would depend upon the gravity of the charges,
repetition, etc. In the facts of the case, as there is repetition of
such misconduct, the impugned order has been passed which cannot be
said to be erroneous, particularly when, admittedly the inquiry is
held and the charges are established after affording an opportunity.
17. In
these circumstances, it is required to be considered whether the
lower Appellate Court could have reversed the findings while
confirming the fact that charges are established and only on the
aspect of quantum of punishment it has substituted its findings. The
Hon’ble Apex Court in catena of judicial pronouncements has observed
that normally the Court would not substitute its own findings while
deciding the quantum of punishment unless it is found to be too
harsh. In the facts of the present case, while considering this
aspect, a useful reference can be made to the observations made by
the Hon’ble Apex Court in the case of U.P.State
Road Transport Corporation v. Vinod Kumar
reported in (2008)
1 Supreme Court Cases 115,
wherein it has been observed in a similar case of conductor of a
State Transport Corporation with regard to misappropriation of money
by carrying the passengers without tickets. In the said judgment, it
has been observed as under:
“This
Court in a number of judgments
has held that the punishment of removal/dismissal is the appropriate
punishment for an employee found guilty of misappropriation of funds;
and the Courts should be reluctant to reduce the punishment on
misplaced sympathy for a workman.
That, there is nothing wrong in the employer losing confidence or
faith in such an employee and awarding punishment of dismissal. That,
in such cases, there is no place for generosity or misplaced sympathy
on the part of the judicial forums and interfering with the quantum
of punishment.”
18. Therefore,
after taking into consideration various aspects like, gravity of the
charges, findings in the inquiry, etc. when the punishment is
inflicted, the same cannot be easily interfered with. Therefore, as
rightly submitted, the lower Appellate Court has failed to appreciate
all these material and evidence while observing that the order of
dismissal is in violation of the principles of natural justice and
therefore to that extent it has misdirected as the observations would
be self contradictory inasmuch as, on one hand, the inquiry is
admittedly held and the notice at the conclusion of the inquiry for
quantum of punishment is also issued. But, while imposing the
punishment, merely because the notice has not mentioned about the
earlier history which is considered, is held to be bad and is made a
ground for setting aside the order of the trial Court. As observed,
the lower Appellate Court has, misdirected as it cannot be said to be
in violation of natural justice when the Hon’ble Apex Court has
discussed as above observing that the Court normally would not
substitute its own findings with regard to quantum of punishment. The
lower Appellate Court ought not to have disturbed the findings.
19. Therefore,
the present second appeal deserves to be allowed and accordingly
stands allowed. The impugned judgment and order dated 06.01.1992
passed by the Assistant Judge, Gondal in Regular Civil Appeal No. 14
of 1988 is hereby quashed and set aside.
20. Rule
is made absolute. No order as to costs.
(RAJESH
H. SHUKLA, J.)
jani
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