Gujarat High Court
State vs B on 29 March, 2011
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
Gujarat High Court Case Information System
Print
SA/165/1985 16/ 16 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 165 of 1985
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
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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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STATE
OF GUJARAT & 2 - Appellant(s)
Versus
B
K NIKALANI - Defendant(s)
=========================================================
Appearance :
MR
HK PATEL AGP for Appellant(s) : 1 - 3.
MR AMIT C NANAVATI for
Defendant(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 29/03/2011
ORAL
JUDGMENT
Present Second Appeal has been filed by the appellant-State posing the substantial questions of law as follows:
(I) Whether the termination of service of the respondent (plaintiff) who was on probation can be said to be premature, illegal and void in view of the express provision in explanation (8) of Rule 6 of GCS (D& A) Rules, 1971.
(II) Whether the Courts below have erred in law in passing the decree of direction and injunction of continued service and whether the conclusions and findings are legal ?
The facts of the case briefly summarized as follows:
2.1 The respondent-original plaintiff filed Regular Civil Suit No.477 of 1975 before the Civil Judge (S.D.), Godhra for declaration that the order of termination of the plaintiff from service intimated by telegram is without jurisdiction, null and void and has also prayed for consequential reliefs. Learned Civil Judge (S.D.), Godhra, on appreciation of evidence and after hearing the parties, vide judgment and order dated 30th January, 1980 decreed the suit declaring that the termination of service is without jurisdiction, null and void. The aforesaid judgment came to be challenged by the appellant-State by way of Regular Civil Appeal No.92 of 1981 before the District Court, Godhra. The District Court on appreciation of evidence and after hearing the learned advocates for the parties, dismissed the appeal and confirmed the judgment and decree passed by the learned Civil Judge (S.D.) Godhra vide its judgment and order dated 29th July, 1983. It is this judgment and concurrent findings which have been assailed in the present second appeal on the ground set out in the memo of the present second appeal posing the aforesaid substantial question of law.
Learned AGP, Mr.Patel, referred to the substantial questions of law which have been posed and submitted that both the Courts below have committed grave error in appreciating the evidence. He submitted that both the Courts have not appreciated that the order of termination had been passed by the Competent Authority and it was only communicated by the defendant No.3 by telegram. He submitted that both the Courts have failed to appreciate with regard to the fact that the respondent-original plaintiff was appointed as Medical Officer purely on temporary basis. Thereafter, the order was passed appointing him on long term basis. Learned AGP, Mr.Patel, has submitted that when the person like the respondent-plaintiff is appointed purely on temporary basis till the regular candidate by a selection process is available, he cannot claim any right to the post. He submitted that both the Courts have committed a grave error in assuming that on expiry of certain period of the probation, the employee would be automatically confirmed. He pointedly referred to the observations made by the first appellate Court and submitted that telegram which is at Exh.43 has been wrongly construed and in para 10, it has been observed: "That means it is an order of District Health Officer, Administrative Head of the District". Further, it has been observed that "on the other hand, telegram, prima-facie, reveals that the order terminating the services and directing to handover the charge immediately was an order passed by District Health Officer and not by the Competent Officer".
He pointedly referred to the observation in para-11 with regard to the stand of the Government and submitted that erroneously it has been considered and observed that "The Government or both the officers to whom the notice was issued should have immediately responded to notice Exh.44 disclosing that the order was passed by the Competent Authority but it was only communicated by the District Health Officer but they deliberately remained silent and the plaintiff is kept in darkness".
Further he pointedly referred to the observation made in the judgment of the first appellate Court in which he has referred to order dated 6.9.75 but there is nothing to show that the said order was sent to District Health Officer and the same was communicated by the said telegram at Exh.43. Thus, defendants have deliberately remained silent and not relied on the order dated 6.10.1975 by not replying to the statutory notice and even in the written statement, by mere production of Exh. 57 and proving the signature, it does not lead any further except to the extent that such order was passed. Learned AGP, Mr.Patel, therefore, referred to the written statement produced before the District Court. He submitted that it has been specifically contended therein that he was appointed on temporary basis and there was a specific stand in the pleading. "The order dated 6.9.75 of the Government was sent to the plaintiff through defendant No.2. It was communicated to him through defendant No.2 by telegram dated 11.9.1975 and his services were terminated with immediate effect. The said telegram was received by him. The plaintiff was asked to handover the charge to other Medical Officer who by co-incidence happens to be his wife. It was also contended that the plaintiff has not cited any rules or breach thereof. In any case, Rule 6(8) quoted in the plaint is against the plaintiff. It is not correct or it is not admitted that his services is protected and services of the probationer cannot be terminated without good and sufficient cause. Learned AGP has submitted that it is a right of the Government to terminate the services of the employee without any notice and he cannot get confirmation automatically. In support of his submission, he has referred to and relied upon the judgment reported in the case of Kedar Nath Bahl V/s. The State of Punjab and others reported in AIR 1972 SC 873. He has also referred to and relied upon the judgment in the case of State of Nagaland V/s. G. Vasantha reported in AIR 1970 SC 537:
Observation made by the Apex Court in para Nos.10 and 11.
"10. Rules 2
(b), 3 and 4 of the Central Services (Temporary Services) Rules, 1949 read together show that a government servant shall be deemed to be in quasi-permanent service if the said government servant has been in continuous government service for more than three years and the appointing authority is satisfied regarding the matters relating to the said employee referred to in Rule 3, and issues a declaration to that effect. The State Government, no doubt appears to have taken a decision on August 17, 1966 to make certain temporary employees quasi-permanent and accordingly certain posts also were made permanent. The Government also issued a Circular, dated October 10, 1966 making the temporary posts in the Schedules attached to that order into permanent posts under the Education Department. But it will be seen that except making those posts permanent, the services of the incumbents of such posts had not been made permanent, as wrongly assumed by the High Court. On the other hand, by order dated September 14, 1967 the State Government made various temporary employees permanent. No such notification had been issued in respect of the respondent, i.e., no declaration in respect of the respondent, as required under Rule 3 (2) of the Central Services (Temporary Services) Rules, 1949 has been issued. Therefore the position was that the respondent continued to be a temporary servant on the date when the order under attack was passed.
11. The High Court itself has stated. "It is true that the termination appears to be innocuous and not on any disciplinary or punitive grounds".
After this finding and in view of the fact that the respondent was only a temporary government servant, whose services had been terminated under the contract of service, no further question regarding the validity of the order arises at all. But the High Court has expressed the opinion that Article 311 has been violated because it must be inferred that the order has been passed by way of punishment, especially when the respondent has been in service for over five years. This reasoning, in our opinion, is erroneous. In fact the High Court has recorded two inconsistent findings: (i) that the termination is incases and not on any disciplinary or punishment grounds; and (ii) that the order of termination must be considered to have been passed by way of punishment. Even the respondent, so far as we could see, has not taken up any plea tot he effect that the order terminating her services was by way of punishment".
As we have already pointed out, the services of the respondent have been terminated according to the terms of the contract of service and the order terminating the service is one simpliciter and not by way of punishment. If so, the matter comes squarely within the proposition No. 1 set out above and it follows that Article 311 has no application at all.
He has also referred to and relied upon judgment in the case of The State of Punjab and another V/s. Sukh Raj Bahadur reported in AIR 1968 SC 1089.
Therefore, learned AGP has also referred to the order of termination dated 6.9.1975 which is produced at Exh.57 and submitted that it is a resolution of the Government signed by the Under Secretary to the Government and the copies marked to Director of Health and Medical Services and also to the plaintiff. He also referred to the order of appointment dated 18.1.1972 and submitted that, as stated, the respondent-original plaintiff along with others was appointed in GPSC Class-II purely on temporary and provisional basis subject to their giving undertaking that they accept the appointment on clear understanding that it is temporary and provisional and will be liable to be discharged from services any time without notice or without assigning any reason. Referring to this, learned AGP has submitted that as stated by the respondent-plaintiff in his testimony at Exh.51, he has admitted that he was on probation and thereafter, he was appointed on long term basis. He has admitted that he has given an undertaking pursuant to the order of appointment at Exh.39, though in the next page, he immediately said that he cannot say whether any undertaking is given by him. Again in cross-examination, referring to the same resolution, he has stated that he has seen the resolution and perhaps he might have received but, at present, he does not remember. Learned AGP, therefore, submitted that in the facts of the case, both the Courts have committed an error in appreciating the evidence as well as in appreciating that he cannot claim the confirmation automatically. There is no rule or anything to suggest that on expiry of period of probation, he would be confirmed automatically. He submitted that as per the order Exh.57, the Government had communicated to Director of Health Services (Health), Ahmedabad that the respondent-plaintiff may be informed telegraphically to handover the charge and he should be relieved immediately. Learned AGP submitted that his wife was other officer and charge was required to be handover and still he did not handover the charge and sought for an injunction. The said application was dismissed and injunction was not granted against which, the appeal was also preferred. Therefore, learned AGP submitted that whether the person is suitable or not or whether on expiry of period of probation, he can be retained and confirmed or not is required to be considered by the Government as per the guidelines and person like respondent-plaintiff cannot claim to have been confirmed. He therefore submitted that present second appeal may be allowed.
Learned advocate, Mr.Amit Nanavati, opposed the second appeal and submitted that as it transpires, the respondent-original plaintiff was appointed initially on temporary basis and thereafter, he was appointed on long term basis. He submitted that the respondent-plaintiff completed the period of probation and thereafter also, he was continued and therefore, the services could not have been terminated without notice. In support of his submission, he has also referred to Rule 35 of Gujarat Civil Services Rules 2002 which reads as under:
"Rule 35 :
Termination of services of a temporary Government employee: The service of a temporary Government employee shall be liable to termination at any time by a notice in writing given to him by the appointment authority".
Learned advocate, Mr.Nanavati, submitted that admittedly no notice was issued by the Competent Authority nor the order has been served which is produced at Exh.57. Therefore, it is strenuously submitted that only by telegram, the services of the employee cannot be terminated and therefore, it is erroneous. Learned advocate, Mr.Nanavati, submitted that concurrent findings of facts given by two Courts below may not be disturbed and therefore, present second appeal may be dismissed.
In view of rival submissions, it is required to be considered whether the present second appeal can be entertained or not.
It is well accepted that there is limited scope of exercise of discretion of Section 100 of Code of Civil Procedure in Second Appeal. There is no doubt that scope of exercise of discretion in Second Appeal is very limited as laid down by catena of judicial pronouncements and guideline. At the same time, Hon'ble the Apex Court in judgment in the case of Kashmir Singh V/s. Harnam Singh and Anr.reported in AIR 2008 SC 1749 has observed, considering the various aspects and the scope of Section 100. The paras 16 and 17 are as follows:
"16. The principles relating to Section 100, relevant for this case, may be summarized thus :-
(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle.
In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
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".
Therefore, the Hon'ble Apex Court has also clearly observed that there may be exception to general rule that the High Court will interfere with concurrent findings of the Courts below and they are well recognized as stated herein above.
In the facts of the present case also, both the Courts below have totally misdirected while appreciating the facts and evidence on record and therefore, it would certainly fall in such an exception where the Courts have drawn wrong inference of the true facts by applying the law erroneously.
As discussed herein above, few admitted facts are required to be mentioned. That the respondent-plaintiff was appointed purely on ad-hoc and temporary basis which is clearly reflected from the appointment order from Exh.39 and undertaking was also required to be given that the services could be discontinued without notice or assigning any reason. Thereafter, he has been appointed on long term basis. However, fact remains that he was not appointed by any regular selection process like GPSC. Therefore, merely because he was allowed to work for 5 years, by itself would not be a ground for drawing inference that he was deemed to be confirmed. Admittedly, it has been stated by the respondent-plaintiff in his testimony/ deposition at Exh.51 that there is no such statutory rule or guidelines stating that after the period of probation, he will get the confirmation automatically. He has further stated that according to his information, the order of appointment could be incorporated in that fashion. Further as rightly emphasized by learned AGP, referring to the undertaking at Exh.39, he has admitted that he has given an undertaking and in the next page he changed his version that he does not know whether any such undertaking is given. The law on this aspect is well settled that a probationer will continue to remain in probation unless the order of appointment or the rules specifically provide that on completion of period of probation, he would be deemed to be confirmed automatically. In absence of any such rule or stipulation in the order, he will continue to remain on probation unless there is a specific order of confirmation. Therefore, as he was only appointed on temporary basis till the candidates are available after the regular selection procedure, he cannot claim any permanent appointment particularly when it is specifically made clear even at the time of appointment. Reliance placed by learned AGP on the judgment in case of State of Nagaland (supra) refers to the applicability of Article 311 to the temporary Government servant and it has been specifically observed referring to the earlier judgment in the case of the State of Punjab and another (supra) : ""On a conspectus of these cases, the following propositions are clear".
1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution."
As we have already pointed out, the services of the respondent have been terminated according to the terms of the contract of service and the order terminating the service is one simpliciter and not by way of punishment. If so, the matter comes squarely within the proposition No. 1 set out above and it follows that Article 311 has no application at all.
Further, the Hon'ble Apex Court in a judgment in the case of State of Gujarat & Anr. V/s. P.J.Kampavat & Ors. reported in 1993 (1) GLR 848 has also similarly observed referring to Rule 33 of BCSR which are parimateria with the rules of GCSR. It is also required to be mentioned that in a case before the Hon'ble Apex Court which has been quoted, a similar phrase in the order of appointment like the appointment order in case of respondent-plaintiff was there. The Hon'ble Apex Court, considering the same contentions which are posed and referred to by the learned advocate which provide for mode of termination of service of a temporary government servants, has made observations. The Hon'ble Apex Court, however, observed that "We are however, of the opinion that the said Rules have no application to the respondent herein and that they cannot be deemed to be temporary Government servants within the meaning of the said Rules inasmuch as the terms of their appointment clearly amount to an otherwise provision within the meaning of the non obstante clause ("except where it is otherwise expressed or implied"). It is also required to be mentioned that the rule which has been referred to is of 2002; whereas, the order of appointment of the respondent-plaintiff is of the year 1972-74 where BCSR were made applicable, the same which have been referred to by the Hon'ble Apex Court in the aforesaid judgment.
Hon'ble Apex Court in this judgment clearly observed and laid down that persons appointed on specific condition that their services will be purely temporary and liable to be terminated forthwith without any notice cannot seek any protection. It is in this background and discussion, the submissions are required to be appreciated and also the judgment and order of both the Courts below are required to be appreciated. It is evident from the bare perusal of the judgment that both the Courts below have totally misdirected while appreciating the nature of appointment of the respondent-plaintiff. The observation which has been made is totally without any basis. It has been observed by both the Courts, referring to telegram Exh.43-order of Director of Health and Medical Service and also observations have been made therein, that no order is passed by the Competent Authority whereas admittedly, Exh.57 was placed on record which is an order passed by the Competent Authority. In spite of the order Exh.57, the observation and interpretation was sought to be made to brush aside the order that "there is no necessary to refer Exh.57 of the plaint when it was not received nor it was referred in Exh.43". It was for the defendant while filing the legal suit and order was passed by the Competent Authority and it was duly communicated to the plaintiff. Further observation has been made that adverse inference could be drawn in observation of the specific contention in the written statement and also the evidence led by the appellant-defendant State. In-fact the evidence/deposition of the respondent-plaintiff itself clearly suggests about the order and undertaking and the nature of appointment.
Therefore, in light of the discussion made herein above, present second appeal deserves to be allowed. As laid down by the Hon'ble Apex court in judgment rendered in the case of Kashmir Singh (supra) in para 17 referring to the exception the case would be squarely covered by (ii) which provides, 'the Courts have drawn wrong inferences from the proved facts by applying the law erroneously'.
Therefore, in light of the aforesaid discussion, it is evident that both the Courts below have totally misdirected in appreciating the evidence as well as the law. Therefore, present second appeal deserves to be allowed and accordingly stands allowed. Both the judgments of the first appellate Court as well as trial Court are hereby quashed and set aside and both the Courts have erred in passing the decree of declaration that the respondent plaintiff continued in service.
(RAJESH H.SHUKLA, J.) (ashish) Top