Rajasthan High Court - Jaipur
R S R T C vs Om Prakash Dhadich on 27 April, 2022
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 337/2000
1. Rajasthan State Road Transport Corporation through its
General Manager cum Managing Director, Jaipur.
2. Divisional Manager, Rajasthan State Road Transport
Corporation, Jodhpur Depot.
----Appellants- Defendants
Versus
Om Prakash Dhadich son of Shri Kanhaiya Lal, Ex-conductor,
Rajasthan State Road Transport Corporation, Jalore Depot,
Resident of V&PO Colony via Pipad City, District Jodhpur
---- Non appellant Plaintiff
For Appellant(s) : Mr. Vinayak Joshi
For Respondent(s) : Mr. B.L. Gupta
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
27/04/2022
BY THE COURT:
The appellant- defendant-RSRTC (hereafter `the RSRTC') has preferred this second appeal assailing the judgment and decree dated 28-10-1999 passed by the Additional District Judge No.8, Jaipur City, Jaipur in first appeal No.326/1996 dismissing appeal and affirming the judgment and decree dated 11-10-1990 passed by the Additional Munsif and Judicial Magistrate No.3, Jaipur city, Jaipur in civil suit No.150/1987 whereby and whereunder suit has been decreed, the termination order dated 26-3-1985 was quashed and set aside and plaintiff has been declared entitled for all monetary benefits from the date of termination.
2. Facts as culled out from the record are that respondent- plaintiff (hereafter `the plaintiff') filed a suit that plaintiff was appointed on the post of Conductor on daily wages on 24-6-1983 (Downloaded on 29/04/2022 at 09:03:31 PM) (2 of 6) [CSA-337/2000] and subsequently vide order dated 22-10-1984 he was appointed on probation. He was removed from service vide order No.302 dated 26-3-1985 because on 5-3-1985 while he was on duty of Conductor on the route of Balotra to Barmer his vehicle was checked and despite there being no passenger without ticket remark of 15 passengers without ticket was made. However, without conducting any enquiry regarding the aforesaid remark removed the plaintiff from service vide impugned order. The termination was made on account of remarks against plaintiff. Plaintiff filed a civil suit for declaration, challenging termination order dated 26-3-1985, alleging inter alia that his termination is stigmatic and he has been terminated from service without conducting any enquiry as also without giving any opportunity of hearing on alleged charges. Plaintiff prayed for declaring termination order as illegal and void and claimed for his reinstatement with all consequential benefits and monetary benefits.
3. The RSRTC filed written statement contending that plaintiff was on probation and he was removed from service due to unsatisfactory service, without casting any stigma, but only for simpliciter reason that RSRTC was not in need of service of plaintiff, as such no enquiry was required to be conducted before removal of plaintiff. Other objections as to valuation of the suit and that the Civil Court does not have jurisdiction, were also raised.
4. The trial Court settled issues and recorded evidence of both parties. Plaintiff appeared as witness and produced document. Plaintiff stated that his termination is stigmatic and was passed (Downloaded on 29/04/2022 at 09:03:31 PM) (3 of 6) [CSA-337/2000] without conducting enquiry and without giving any opportunity of hearing, therefore, termination is ex facie illegal and in violation to principles of natural justice. No evidence was adduced in rebuttal by RSRTC.
5. The trial Court after appreciation of evidence on record concluded that the termination of plaintiff from service is not simpliciter, but because of stigmatic remark. It was found that on 5-3-1985 plaintiff was on duty as Conductor in bus plying from Balotra to Barmer which was inspected, and during inspection it was found that 11 passengers were travelling in bus without ticket. The inspecting team made a remark that plaintiff is guilty and negligent in his duties. Thus, the trial Court observed that since termination of plaintiff is stigmatic and no enquiry was conducted, no opportunity of hearing was given, no principle of natural justice was followed, thus, impugned termination order is illegal and void. Accordingly, the trial Court allowed plaintiff's suit declaring the termination order as illegal and void. The trial Court directed to give all monetary benefits to plaintiff from the date of termination.
6. Defendants preferred first appeal against judgment and decree of trial Court, which was decided by the Appellate Court vide judgment dated 28-10-1999 and upheld the judgment and decree.
7. At the outset, counsel for the respondent-plaintiff, on instructions of his client, submits that since no stay order was passed in favour of the appellant-Corporation, the respondent- plaintiff was reinstated in service and now has retired on attaining the age of superannuation. Counsel submits that through (Downloaded on 29/04/2022 at 09:03:31 PM) (4 of 6) [CSA-337/2000] execution, the impugned decree has been executed and now, no recovery is due against the appellant-Corporation, nor any compliance of the decree remains due to be made.
8. Although impugned judgment and decree passed by the trial court has been executed, however, counsel for appellant- defendant has argued against the judgments of courts below.
9. Heard learned counsel for parties and perused impugned judgment passed by the trial court as affirmed by the first appellate court, as also record of the case.
10. As far as nature of termination as simpliciter or stigmatic is concerned, both Courts have concurrently held on the strength of oral or documentary evidence that the termination was stigmatic. The fact finding of two courts below are based on appreciation of evidence and no perversity has been pointed out in such fact findings, so as to give rise any question of law much less substantial question of law.
11. As far as the question of law that civil court has jurisdiction to entertain the suit is concerned, such issue has been considered and decided by the Apex Court in Rajasthan State Road Transport Corporation Vs. Bal Mukund Bairwa [(2009)4 SCC 299] and it has been held that where no enquiry has been conducted, there would be violation of statutory Regulations as also right of equality as contained in Article 14 of the Constitution of India. In such a situation a civil suit will be maintainable for the purpose of declaration that termination of service was illegal and consequences flowing therefrom. Therefore, the question of law relating to maintainability of suit is answered in negative. (Downloaded on 29/04/2022 at 09:03:31 PM)
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12. Similarly the question of law relating to entitlement of plaintiff for backwages from the date of his termination is also valid in view of the judgment of the Apex Court in case of Bal Mukund Bairwa (supra). In the opinion of this court, the first appellate court has not committed any illegality or jurisdictional error in awarding backwages to plaintiff from the date of his termination order and decreeing plaintiff's suit as a whole. Thus, this question of law is also answered in negative.
13. The conclusion of courts below are based on findings of fact. The Hon'ble Supreme Court in the case of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar [(1999)3 SCC 722] and catena of other judgments passed in case of Pakeerappa Rai Vs. Seethamma Hengsu & Ors., [(2001) 9 SCC 521], Thulasidhara & Anr. Vs. Narayanappa & Ors., [(2019) 6 SCC 409], Bholaram Vs. Ameerchand, [(1981) 2 SCC 414], Ishwar Das Jain Vs. Sohan Lal, [(2000) 1 SCC 434] and State of Madhya Pradesh Vs. Sabal Singh & Ors., [(2019) 10 SCC 595], has categorically held that at the stage of second appeal, fact findings recorded by two Courts below, based on appreciation of evidence, should be honoured and must not be interfered with unless and until there is some perversity, illegality or jurisdictional error which leads manifest injustice. Once findings of fact recorded by two Courts below are justified and based on due appreciation of evidence, re-appreciation of evidence at the stage of second appeal in order to draw a different conclusion is not warranted. The scope of second appeal is confined to examine substantial question of law, which are sine qua non to exercise powers under Section 100 of CPC.
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14. In case of Umerkhan Vs. Bismillabi [(2011)9 SCC 684] Hon'ble Supreme Court has propounded that if a second appeal is admitted on substantial question of law, while hearing second appeal finally, can re-frame substantial question of law or can frame substantial question of law afresh or even can hold that no substantial question of law involved, but the High Court cannot exercise its jurisdiction of Section 100 CPC without formulating substantial question of law.
15. In the present case substantial questions of law as proposed by appellant are essentially either question of facts or have already been settled by way of judicial precedents. Further impugned judgment has already been executed. Thus, in this second appeal, no substantial question of law involved. Accordingly, the second appeal is not liable to succeed. Consequently, the same is hereby dismissed.
16. Stay application and any other pending application(s), if any, also stand(s) disposed of.
17. Record of courts below be sent back forthwith.
(SUDESH BANSAL),J Arn/76 (Downloaded on 29/04/2022 at 09:03:31 PM) Powered by TCPDF (www.tcpdf.org)