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SA/201/2007 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 201 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
:
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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 ?
=========================================================
GUJARAT
STATE ROAD TRANSPORT CORPORATION THROUGH & 1 - Appellant(s)
Versus
JADEJA
DILUBHA JAMUBHA - Defendant(s)
=========================================================
Appearance
:
MS
SEJAL K MANDAVIA for
Appellant(s) : 1 - 2.
MR GK RATHOD for Defendant(s) : 1,
MR
MUKESH H RATHOD for Defendant(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 25/07/2008
ORAL
JUDGMENT
1.0 This
appeal is directed against the judgment and order dated 14.08.2007
passed by the learned Addl. District Judge and Presiding Officer,
Fast Track Court No. 5, Rajkot in Regular Civil Appeal No. 33 of 1994
whereby, the said appeal was dismissed and the judgment and decree
dated 31.03.1994 passed by the learned 3rd Jt. Civil Judge
(S.D.), Rajkot in Regular Civil Suit No. 1053 of 1994 was confirmed.
2.0 The
facts in brief leading rise to the filing of the present appeal are
as under;
2.1 The
respondent, original plaintiff, is serving as a Conductor at the City
Depot, Rajkot, which is being managed by the appellant ?
Corporation. The respondent was served with a charge-sheet dated
12.09.1986 by the appellants alleging that on 14.05.1986 the
respondent had misbehaved with one passenger. The respondent replied
to the said charge-sheet vide reply dated 19.11.1986.
2.2 Being
dissatisfied by the said reply, the appellant ? Corporation
initiated departmental inquiry against the respondent. On completion
of the inquiry, the respondent was served with a show-cause Notice
dated 22.05.1987 calling upon the respondent to show cause as to why
he should not be dismissed from the service.
2.3 On
having come to know that a decision to dismiss the respondent from
service has been taken by the appellants, the respondent filed a suit
being Civil Suit No. 551 of 1987 challenging the validity of the
inquiry and the order of dismissal passed by the appellants.
2.4 However,
the said suit was dismissed by the Civil Court on the technical
ground that the suit was premature since no final order with respect
to the dismissal of the respondent from service has been passed by
the appellants. While passing the above order, the Court also
observed that any order of dismissal or any other punishment, which
may be passed, shall not be implemented for a period of fifteen days.
2.5 However,
subsequently, vide order dated 04.09.1987, the respondent came to be
dismissed from the service. Being aggrieved by the aforesaid order,
the respondent preferred a suit being Regular Civil Suit No. 1053 of
1994 before the Court of learned Jt. Civil Judge (S.D.), Rajkot. The
trial Court, after hearing the parties and after considering the
evidence on record, decreed the suit in favour of the respondent and
held that the departmental inquiry and the subsequent order of
dismissal passed by the appellants were bad in law and illegal.
2.6 Against
the said order, the appellants preferred an appeal being Regular
Civil Appeal No. 33 of 1994 before the Court of learned Addl.
District Judge and Presiding Officer, Rajkot. The lower appellate
Court, after appreciating the evidence on record, dismissed the
appeal and confirmed the order passed by the trial Court. Hence, this
second appeal.
3.0 Heard
learned counsel for the respective parties and perused the documents
on record. The only contention raised by the learned Advocate for the
appellants is that the Civil Court has no jurisdiction to entertain a
suit challenging the departmental proceedings and the subsequent
order of dismissal passed by a competent authority. The said
contention raised by the appellants does not hold any ground in view
of the recent decision of the Hon’ble Apex Court in the case of
Rajasthan S.R.T.C. & Ors. v. Mohar Singh reported
in 2008(3) S.C. Pg. 230 wherein, it has been held that
a Civil Court may have a limited jurisdiction in service matters and
it may not sit in appeal over the order passed in disciplinary
proceedings or on the quantum of punishment imposed and it may also
not direct reinstatement in service having regard to Section 14(1)(b)
of the Specific Relief Act, 1963. But, it cannot be said to have no
jurisdiction at all to entertain a suit and it is trite that where
the right is claimed by the plaintiff in terms of a common law or
under a statute, other than the one which created a new right for the
first time and when a forum has also been created for enforcing the
said right, the Civil Court shall also have jurisdiction to entertain
a suit where the plaintiff claim benefit of a fundamental right, as
adumbrated under Article 14 of the Constitution of India or mandatory
provisions of statute or statutory rules governing the terms and
conditions of service.
4.0 In
the case on hand, it is not in dispute that the order of dismissal
came to be passed after the suit being Civil Suit No. 551 of 1987
preferred by the respondent challenging the validity of the
departmental inquiry and the order of dismissal that may be passed by
the appellant ? Corporation was dismissed on the technical ground
of being premature. Therefore, ultimately, when the order of
dismissal dated 04.09.1987 came to be passed, a right shall accrue on
the respondent to choose a forum vis-a-vis the common law before
which he desires to redress his grievances.
5.0 Having
gone through the record, it is evident that the action on the part of
the appellant ? authority is violative of the mandatory
requirements of a statute or the statutory rules and the principles
of natural justice. Therefore, in such case, the Civil Court will
have the jurisdiction to entertain the suit in view of the principle
laid down in Rajasthan S.R.T.C. Case (supra).
6.0 In
view of the above discussion, I am of the view that the Court below
was completely justified in passing the impugned judgment and decree.
I am in complete agreement with the concurrent findings recorded by
both the Courts below and hence, find no reasons to interfere in this
appeal.
7.0 For
the foregoing reasons, the Appeal is dismissed. Notice is discharged.
No order as to costs.
[K.
S. JHAVERI, J.]
Pravin/*
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