Gujarat High Court
Gujarat vs Kanti on 21 December, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SA/201/1985 21/ 21 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 201 of 1985
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
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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 ?
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GUJARAT
STATE ROAD TRANSPORT CORPORATION - Appellant(s)
Versus
KANTI
ATMARAM VYAS - Defendant(s)
=========================================================
Appearance
:
MR
KN RAVAL for
Appellant(s) : 1,MR HARDIK C RAWAL for Appellant(s) : 1,
MR MD
RANA for Defendant(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 21/12/2010
ORAL
JUDGMENT
Heard learned advocate Mr. HC Rawal on behalf of appellant, learned advocate Mr. MD Rana appearing for respondent.
In present second Appeal, following substantial question of law are involved and formulated by this Court on 25/10/1985, which are as under:
"1. Whether Appellate Court and Trial Court had jurisdiction to hear matter, even though, remedy under an Industrial Dispute Act was available to original plaintiff or not?
2. Whether in facts and circumstances of case Courts below were right in holding that this is a case of No Evidence and on that basis whether they were entitled in directing reinstatement?
The brief facts of present appeal are that respondent Kanti Atmaram Vyas being a plaintiff was working as Conductor in ST Corporation at Upleta Depot. The plaintiff was confirmed Conductor and ST Corporation is being statutory body and frame Discipline and Appeal Rules & Procedure which are applicable to Corporation. The plaintiff was dismissed from service on 29/11/1979 because of misconduct found to be proved against plaintiff dated 12/8/1979.
(3.1) The charge was levelled against plaintiff that on 12/8/1979 plaintiff Conductor was on duty on Upleta to Gadhethd Bus. This bus was checked by Checking Inspector Mr. S. K. Chavda and party of security branch, Junagadh at Murkhda Fatak and irregularities are found that two passengers were traveling from Upleta to Nagvadar, three passengers were traveling from Upleta to Ishra patiya and nine passengers were traveling from Upleta to Murkhda Patiya, found without tickets. At the time of checking, total amount of tickets comes to Rs. 5.90/-, which required to be recovered by plaintiff from passengers which has not been recovered said amount by plaintiff from any of passengers. It is an undisputed facts found from charge sheet that at the time when checking was taken place no fare has been recovered by plaintiff from any of passengers as referred above. So, it is not a case of dishonesty or misappropriation alleged against plaintiff by ST Corporation.
(3.2) The charge sheet was served to plaintiff and reply was submitted by plaintiff and demanding copy of way bill from Depot Manager Upleta, which was not supplied to plaintiff. Thereafter, departmental inquiry was conducted against him and after completion of departmental inquiry show cause notice was served to him and ultimately he was dismissed from service by Corporation on 29/11/1979. The exh 16 is order of dismissal and exh 17 is copy of charge sheet dated 29/8/1979 and exh 18 is reply of charge sheet given by plaintiff. The finding given by Depot Manager Upleta exh
21. Thereafter, show cause notice was served to plaintiff exh 19, which was replied by plaintiff exh 20. Before Trial Court, entire default case file was produced by Corporation exh 22. The reply of show cause notice was given by plaintiff on 24/12/1979. Before Trial Court, plaintiff was examined exh 23 and also examined one witness Vasantray Harilal exh 24, who was traveling by this bus at the time of checking. On behalf of Corporation, Depot Manager Inquiry Officer Shri Jugatram Mulshanker Pandya was examined at exh
35. (3.3) Thereafter, Trial Court has considered how departmental inquiry was conducted against present plaintiff and also considered important facts, which was not in dispute between parties that on the date of incident, his bus was started little bit late then 10.45 am from platform no. 4 as platform is required to be vacated for another bus. There was a heavy rush of passengers and out of 62 passengers, who were traveling in his bus, at the time of checking about 48 passengers were found with tickets. At the time of checking he was doing road booking and aforesaid passengers were not issued tickets because bus was checked within short distance about three to five kilometers from bus stand of Upleta. Only fault of plaintiff that he has done road booking and some passengers were found without tickets which total amount of non issuance of tickets comes to Rs. 5.90/-. No passengers were examined during departmental inquiry, for that, no reasons have been given and age of plaintiff at the time when order of dismissal was passed about 40 years.
(3.4) The defence of plaintiff was that he was little bit late on the date of incident and his bus was checked by checking staff at 11.05 am near Murkhada Patiya, which was 4 kilometers away from ST bus stand Upleta. This fact has been admitted by Inquiry Officer Mr. Pandya in cross examination and also admitted further fact that this distances are required to be completed within 10 to 15 minutes as one kilometer distance is to be covered by three to four minutes and being a local bus in between from Upleta Bus stand to checking point, there was no stoppage come. In departmental inquiry only one checking Inspector Mr. Chavda was examined except that no other Inspector was examined. The reason given by plaintiff Conductor that he was doing road booking because of late and some other bus at platform no. 4 required to be given vacant space, for that, platform is to be vacated and another bus from Ganod which was required to be parked at about 11.00 am. Therefore, bus was started with passengers in road booking and within two to four kilometers distance bus was checked by checking staff. It was found that no fare was collected by plaintiff from any passengers and there was no intention has been proved by Corporation in departmental inquiry against plaintiff that he wants to misappropriate amount of Corporation. Within three to four kilometers distances, out of sixty two passengers, forty eight passengers were found with tickets and way bill was open, which was not supplied to plaintiff though it was demanded by plaintiff from depot manager Inquiry Officer.
On this basis, Trial Court has come to conclusion that no reasonable proper opportunity of hearing was given to plaintiff before passing order of dismissal. The charge levelled against plaintiff that he has not issued tickets without proper reasons to passengers who were found without tickets at the time of checking. Therefore, Trial Court has come to conclusion that it is a clear case of No evidence and denial reasonable opportunity of hearing to plaintiff and dismissal order has been passed contrary to principle of natural justice. Therefore, same has been set aside with consequential relief of granting reinstatement with all benefits by judgment and decree in favour of plaintiff dated 27/1/1983. It is necessary to note that before Trial Court, ST Corporation has not raised question of jurisdiction. There was no contention raised by Corporation before Trial Court that Civil Court has no jurisdiction. Therefore, that question was not examined by Trial Court.
After aforesaid judgment and decree passed by Trial Court as referred above, ST Corporation has preferred an appeal before Lower Appellate Court Second Extra Assistant Judge, Rajkot in Regular Civil Appeal no. 34/83 exh 13 decided on 30/1/1984. The appeal preferred by Corporation has been dismissed while confirming judgment and decree passed by Trial Court. The ST Corporation has raised contention before Appellate Court in respect to jurisdiction in deciding Civil Suit filed by plaintiff. The Appellate Court has come to conclusion that Civil Court has jurisdiction to entertain suit on the strength of decisions, which have been relied by Appellate Court of this Court in case of Amarsinh Setansing Medatia Vs. Gujarat State Road Transport Corporation & Ors reported in 21 GLR 500. The aforesaid decision has been discussed by Appellate Court in para 17 that Gujarat State Road Transport Corporation has clearly within term "authority"
under Article 12 of Constitution of India and Rules and Regulations framed by this authority Corporation have a force of law and consequently, it must satisfy mandate of Article 14 and 16 of Constitution of India. The following observation made by Division Bench of this Court as referred above in reported decision 21 GLR 500, in para 14 is as under:
"14. At the outset, it must be stated that State Road Transport Corporation is clearly within the term "authority" under Art. 12 of the Constitution of India and the rules and regulations framed by this statutory Corporation have the force of law (vide: Sukhdev Singh Vs. Bhagatram, AIR 1975 SC 1331). A Division Bench of this Court has, in Letters Patent Appeal No. 131 of 1974 with Second Appeal No. 41 if 1973, decided on May 7, 1976 (Per Thakkar, J), held that Gujarat State Road Transport Corporation is an authority within the meaning of Article 12 of the Constitution and its rules and regulations have the force of law and consequently, therefore, must satisfy the mandate of Art. 14 and 16 of the Constitution."
It is necessary to note that Gujarat State Road Transport Corporation having their own Discipline and Appeal Procedure for Gujarat State Road Transport Corporation Employees, which has been framed under provisions of section 45 of Road Transport Act and Service Regulation 80 of ST Corporation. Therefore, employment Standing Order Act, 1946 is not applicable to employees of Corporation because of having separate statutory Rules under Service Regulation 80 of ST Corporation, from which, Discipline and Appeal Procedure for Gujarat State Road Transport Corporation employees has been framed by Corporation. So, this being a statutory Rules, if it is violated or in action if it is contrary to principle of natural justice, then Civil Court has jurisdiction to decide it. The Gujarat State Road Transport Corporation is having exemption from provision of Standing Order Act, 1946. Therefore, provisions of Standing Order Act is not applicable to ST Employees.
In light of this back ground and considering decision of Apex Court in case of Rajasthan State Road Transport Corporation & Anr Vs. Krishnakant reported in AIR 1995 SC 1715, learned Single Judge of this Court (Coram. Honourable Mr. Justice N. N. Mathur (retd)) in case of Gujarat State Road Transport Corporation Vs. Ravji Tapubhai Goti reported in 1998 (2) GLR 1418, where this question has examined in light of aforesaid decision of Apex Court reported in AIR 1995 SC 1715 and this Court has also considered reported decision of 21 GLR 500. The relevant discussion made while deciding question no. 1 in para 2 to 4 are quoted as under:
2.The principles as regards the jurisdiction of the Civil Court in relation to dispute between the employer and the employees have been well settled by series of decisions of the apex court as well as of this court. The three Judges Bench judgement in THE RAJASTHAN STATE ROAD TRANSPORT CORPORATION AND ANOTHER VS.
KRISHNA KANT reported in AIR 1995 SC 1715 after consideration of all earlier judgements, has finally recorded the relevant principles in this regard as follows:-
1. Where the dispute arises from general law of contract i.e. where reliefs are claimed on the basis of the general law of contract, a suit filed in Civil Court cannot be said to be not maintainable, even though such a dispute may also constitute an "industrial dispute" within the meaning of Section 2(k) or Section 2-A of the Industrial Disputes Act, 1947.
2. Where, however, the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes Act, the only remedy is to approach the forums created by the said Act.
3. Similarly, where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactments like Industrial Employment (Standing Orders) Act, 1946
- which can be called `sister enactments' to Industrial Disputes Act - and which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the Industrial Disputes Act provided they constitute industrial disputes within the meaning of Section 2(k) and Section 2-A of Industrial Disputes Act or where such enactment says that such dispute shall be either treated as an industrial dispute or says that it shall be adjudicated by any of the forums created by the Industrial Disputes Act. Otherwise, recourse to Civil Court is open.
4. It is not correct to say that the remedies provided by the Industrial Disputes Act are not equally effective for the reason that access to the forum depends upon a reference being made by the appropriate Government. The power to make a reference conferred upon the Government is to be exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex facie. The power conferred is the power to refer and not the power to decide though it may be that the Government is entitled to examine whether the dispute is ex facie frivolous, not meriting an adjudication.
5. Consistent with the policy of law aforesaid, the Supreme Court though it fit to commend to the Parliament and the State Legislature to make a provision enabling a workman to approach the Labour Court/Industrial Tribunal directly i.e. without requirement of a reference by the Government in case of industrial disputes covered by Sec. 2-A of the Industrial Disputes Act. This would go a long way of removing the misgivings with respect to the effectiveness of the remedies provided by the Industrial Disputes Act.
6. The certified Standing Orders framed under and in accordance with the Industrial Employment (Standing Orders) Act are statutorily imposed conditions of service and are binding both upon the employer and employees, though they do not amount to "statutory provisions". Any violation of these Standing Orders entitles an employee to appropriate relief either before the forums created by the Industrial Disputes Act or the Civil Court where recourse to Civil Court is open according to the principles indicated above.
7. The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and un-encumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to Civil Courts. Indeed, the powers of the Courts and Tribunals under the Industrial Disputes act are far more extensive in the sense that they can grant such reliefs as they think appropriate in the circumstances for putting an end to an industrial dispute.
(3) It is contended by the learned counsel that the plaintiff-respondent is a workman and as such the subject matter being of Industrial Dispute, the Labour court has only jurisdiction to entertain such disputes. The Civil Judge has exceeded the jurisdiction in granting injunction inasmuch as in view of the judgement of the apex court in THE RAJASTHAN S. R. T. CORPORATION (supra) the Civil Suit itself is not maintainable. He submits that the present case is covered by para (2) of the principles laid down by the apex court in the case of RAJASTHAN S.R.T. CORPORATION (supra). The learned counsel submits that in that case also the conductors of the Rajasthan State Road Transport Corporation were dismissed from service after having found them guilty of misconduct. The injunction was granted by the Civil Court which was confirmed by the High Court. However, the apex court applying the principles laid down therein held that the suit filed by the employees of the Rajasthan State Road Transport Corporation was not maintainable. The learned counsel submits that the present case is squarely covered by the said decision.
(4) In my view there is no substance in the contention raised by the learned counsel. In Rajasthan State Road Transport Corporation's case the employees are governed by the certified Standing Orders framed under and in accordance with Industrial Employment Standing Orders (Central) Rules, 1946. The said Standing Orders define misconduct and prescribe the procedure for conducting the disciplinary proceedings against such employees. It appears that said Corporation has not framed Regulations prescribing the conditions of service of its employees in exercise of powers under Section 45 of the Road Transport Corporation Act, 1950. However, in the case of State of Gujarat in exercise of power under Section 45 of the Road Transport Corporation Act, 1950 Regulations have been framed prescribing the conditions of services of its employees which is known as "Gujarat State Transport Employees Service Regulations". Regulation 80 empowers the Corporation to specify the acts of misconduct or omissions liable to be treated as "acts of misconduct" or minor lapses or delinquencies". It empowers the Corporation to prescribe the procedure for dealing with the cases of acts of misconduct and minor lapses and delinquencies. The provision also authorises to appoint appropriate authority to impose punishment and hear the appeals and other disciplinary action. In exercise of powers under Regulation 80 the Corporation has framed Rules known as "Discipline and Appeal Procedure for Gujarat State Road Transport Corporation Employees" (hereinafter referred to as the "Discipline and Appeal Rules"). Clause 5 provides for misconduct and procedure. It is held by a Division Bench of the Gujarat High Court in the case of AMARSING VS. G.S.R.T. CORPO. reported in 21 G.L.R. 500 that Rules and Regulations framed by the State Road Transport Corporation are statutory and have the force of law. This gives statutory status to the employees. Any violation of the statute while terminating the services of such employees entitles them to seek relief of a declaration that the order is null and void. The challenge of the order inflicting penalty on the delinquent not on the ground of violation of any Standing Order but based on the violation of common law, contending that their case is governed under the Discipline and Appeal Rules, clearly falls under category
- 1 referred in the Rajasthan State Road Transport Corpn.'s case (supra). Thus, in my view the Civil Court has jurisdiction to adjudicate the dispute between Gujarat State Road Transport Corporation and its employees."
The Apex Court has considered this question whether termination of employee if it is challenged before Civil Court in terms of section 9 of Civil Procedure Code whether Civil Court has jurisdiction to try and decide legality or otherwise of an order of termination of employee in case of Rajasthan State Road Transport Corporation and Anr Vs. Bal Mukund Bairwa reported in 2009 (2) GLH 348. The observation made by Apex Court that if an employee intends to enforce his constitutional right or right in statutory Regulation, Civil Court will have necessary jurisdiction to try suit but if, however, employee claims his right and corresponding obligations only in terms of provisions of Standing order and Industrial Disputes Act then Civil Court will have no jurisdiction.
Recently, in case of R.S.R.T.C. & Ors Vs. Deen Dayal Sharma reported in 2010 AIR SCW 3108, where it is held that Standing order have no statutory force and are not in nature of delegated/subordinate legislation. Therefore, Apex Court has come to conclusion that dispute regarding dismissal from service plea of respondent ascertaining his right that departmental inquiry has contemplated under standing orders ought to have been held before issuing order of dismissal. Such right could have been enforced by respondent only by raising an industrial disputes and in such case Civil Court has no jurisdiction to entertain suit challenging order of dismissal because standing order is not having statutory force. In aforesaid recent decision Apex Court has considered earlier decision on the same subject including case of Premier Automobiles Ltd.
Before decision of Apex Court in case of Deen Dayal Sharma as referred above, Apex Court has considered same aspect and subject and question of law in respect to jurisdiction of Civil Court in identical dispute in case of R.S.R.T.C. & Ors Vs. Mohar Singh reported ion 2008 (5) SCC 542. The Apex Court has considered that law laid down in Premier Automobiles case in 1976 (1) SCC 496 and held that Civil Court's jurisdiction held is barred only when right is claimed under Industrial Disputes Act, 1947 or Sister's Law otherwise Civil Court has jurisdiction. The violation of No right under Industrial Disputes Act, 1947 or Industrial Employment Standing Order Act, 1946 claimed then which has been held that employee was entitled to enforce his fundamental right and other mandatory provision of law against ST Corporation which was "State" under Article 12 of Constitution of India. The Apex Court has also considered section 9 of Civil Procedure Code and overlapping jurisdiction of two Courts of service matter, held when right occurs in suit or common law employees has option to choose forum. Therefore, it can not be said that Civil Court has no jurisdiction at all to entertain suit filed by employee, which has been governed by Statutory Rules. The aforesaid decision has been considered by this Court in SA no. 201/2007 in case of Gujarat State Road Transport Corporation Vs. Jadeja Dilubha Jamubha dated 25/7/2008 (Coram: Honourable Mr. Justice K. S. Zhaveri) where case of Mohar Singh has been considered as discussed in para 3 to 6, which are quoted as under:
"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."
In light of aforesaid decision as considered by this Court, ST Corporation has framed Service Regulation under provision of section 45 of Road Transport Corporation Act and under Regulation 80, ST Corporation has framed Statutory Rules Discipline Appeal Procedure for employees and action has been initiated by Corporation for committing misconduct by concern employees under provisions of Discipline Appeal Procedure and on that basis order of punishment was passed, which Rules having statutory flavour and force.
Therefore, contention raised by learned advocate Mr. Rawal that Civil Court has no jurisdiction can not be accepted. According to my opinion, substantial question of law no. 1 is decided that in case of Gujarat State Road Transport Corporation having Statutory Rules and Employment Standing Order Act, 1946 is not applicable having exemption. Therefore, action taken by Corporation under Discipline and Appeal Procedure which having statutory force, for that, Civil Court has jurisdiction to decide legality and validity of dismissal order. Hence, Lower Appellate Court has not committed any error in coming to conclusion that Civil Court has jurisdiction.
In respect to second Substantial question of law that whether it is case of No evidence and if that be so whether plaintiff is entitled relief of reinstatement or not? This aspect has been considered by Trial Court as well as Lower Appellate Court on facts which has been discussed by Appellate Court in para 25 to 31, which are quoted as under:
"25. Now, the respondent has narrated the circumstances under which the bus had left from Upleta Bus Station. It is his case that the bus was late. That another bus was required to be placed at the stand on which the bus of the respondent was stationary. He had already issued tickets to 48 passengers. Thereafter, the bus had left from Upleta bus station and as soon as he was about to reach the front portion of the bus for issuing tickets to rest of the passengers, the checking was done by the Checking Officer and therefore, he was unable to issue tickets to those 14 passengers.
26. Now, it is clear from the finding of the inquiry officer that he has solely relied upon the aforesaid rules in arriving at a decision that the respondent was guilty of the misconduct for not issuing tickets to the passengers and for not recovering the amount of ticket charges those 14 passengers. The Inquiry Officer does not appear to have considered the aspect of the case as to whether there was any emergency in the matter of taking the bus so hurriedly from the bus stand at Upleta as stated by the respondent. The Inquiry Officer could have inquired the matter form the local authorities. He could have gathered the actual time at which the bus was brought at the stand for leaving Upleta Bus station, he could have collected the information as to the time at which this bus had left from Upleta Bus station. He could have also inquired, if another bus was required to be placed at the place, at which the bus of the respondent was stationary. These circumstances could really be proper back ground to the inquiry officer in order to arrive at a decision as to whether or not the defence of the respondent is genuine.
27. Then, the Inquiry Officer could also have inquired as to whether the respondent had really an intention to abstain from issuing tickets to those 14 passengers and to abstain from the recovery of the amount of ticket charges from them. It would be seen that the respondent had already issued tickets to 48 passengers before the bus had left Upleta Bus station. I am told that the way bill of the respondent was closed to that extent. That would clearly mean that the tickets to them were already issued and the way bill was closed. Then, the respondent has examined a witness before the trial court saying that when the entered this bus at Upleta bus station, the respondent was not there and the respondent arrived subsequently, and thereafter, the bus had left Upleta bus station. That would mean that passengers had entered this bus after the first booking of 48 passengers was completed and after the way bill was closed. If these persons have entered the bus subsequent to the close of way bill then naturally the respondent would be required to issue tickets to them on way to Gadhethad.
28. For the purpose, the respondent has come with a special circumstance that the bus was placed late on the bus station, and therefore, there was a hurry in starting the bus from Upleta bus station. As said above, the Inquiry Officer does not appear to have inquired into this defence of the respondent.
29. That would mean that there was absolutely no evidence before the Inquiry Officer to collect and gather the intention of the respondent in the matter. In other words, there was no evidence before the Inquiry Officer to hold that the respondent intended to abstain from issuing tickets to those 14 passengers and from the recovery of the tickets charges from them. The respondent can be held guilty if he had abstained from issuing tickets and from the recovery of ticket charges without any excuse. But when he tenders a defence or an excuse, then the Inquiry Officer ought to have considered defence, instead of solely relying upon the rule in question the Inquiry Officer could have considered the practical aspect of the case.
30. So, I am of the view that it is a matter of no evidence before the Inquiry Officer on the charge against the respondent. It should be considered here that there is no charge levelled against the respondent, that he attempted road booking in contrary the provision of the rules.
31. In that view of the matter, I am of the view that it can not be said that it was proved before the Inquiry Officer that the respondent did not issue tickets to those 14 passengers and did not recover ticket charges from them, without any reason. In that case, it must be held to be a case of no evidence."
In respect to whether plaintiff is entitled relief of reinstatement or not, that aspect has been considered by Lower Appellate Court in para 46 and 47 and in such circumstances, Civil Court has jurisdiction when case of No evidence and in certain circumstances, Civil Court can grant consequential relief in favour of employees when order of dismissal is set aside found to be contrary to principle of natural justice and denying reasonable opportunity of hearing to employee, then in such circumstances, Civil Court not acted as Appellate authority but considering evidence on record, there was no evidence at all to prove charge levelled against employee then while setting aside dismissal order being contrary to principle of natural justice, may grant consequential relief which may include relief of reinstatement. For that also according to my opinion, Civil Court has not committed any error which would require interference from this Court. Therefore, contention raised by learned advocate Mr. Rawal can not be accepted.
Learned advocate Mr. MD Rana appearing for respondent submitted that in Civil Application no. 1137/1986 in CA no. 3434/85 in SA no. 201/85 (Coram: Honourable Mr. Justice A. S. Qureshi (retd)) has passed an order on 4/8/1986 while granting stay to the judgment and decree passed by Below Courts subject to condition that petitioner Corporation reinstated opponent within a period of two weeks from date of order 4/8/1986. The following order is quoted as under:
"Rule.
Mr. M.D. Rana appears and waives service. Stay is granted subject to the condition that petitioner Corporation reinstates the opponent within a period of two weeks from today. As regards the back wages the question will be decided at the final disposal of the Second Appeal. Rule made absolute. No order as to costs."
He submitted that in pursuance to aforesaid order, respondent Conductor employee was reinstated in service by Corporation. Thereafter, he was become unfit and retired from service. Therefore, he submitted that respondent employee entitled all consequential benefits as if that dismissal order is not passed against him and also entitled all retirement benefit including back wages of interim period from Corporation because respondent employee was reinstated in service by Corporation as per order passed by this Court as referred above.
In light of aforesaid subsequent development as referred above and considering substantial question of law, which has been formulated by this Court, this Court has answered aforesaid substantial question of law as referred above. According to my opinion, there is no substance in second appeal. Therefore, present second appeal is dismissed. The below Courts have not committed any error in deciding suit as well as appeal or there is no error of law committed by either of below court. Therefore, no interference would require, hence, second appeal is dismissed. No order as to costs. Ad interim relief if any stand vacated.
(H.K.RATHOD, J) asma Top