Rajasthan High Court - Jaipur
R S R T C vs Bhagwan Das Gupta on 13 July, 2011
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Second Appeal No.352/2011 Rajasthan State Road Transport Corporation and Another Vs. Bhagwan Das Gupta Date of Order ::: 13.07.2011 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Inderjeet Singh, counsel for defendant-appellants #### By the Court:-
Heard learned counsel for defendant-appellants.
Learned trial court as also first appellate court both have concurrently held that pay fixation of plaintiff-respondent when he was granted benefit of such selection scale pursuant to government circular dated 25.01.1992, vide order dated 26.02.1994, from that date, was correctly made at Rs.1840/- wherein the amount of Rs.40/-, which was his personal pay, was included. The plaintiff-respondent was in receipt of basic pay of Rs.1680/- and personal pay of Rs.40/- prior to grant of first selection scale pursuant to government circular dated 25.01.1992 on completion of nine years of service. By order dated 09.12.1993 his pay was fixed at Rs.1760/-. When the plaintiff made a representation, praying that his personal of Rs.40/- has been unduly withheld, the earlier order dated 09.12.1993 was revised and a fresh order was passed on 26.02.1994 by which plaintiff was fixed at Rs.1800/- in the pay scale of Rs.1200-2050, as on 25.01.1992. His pay scale was later revised by subsequent order dated 28.12.2005 reducing the same to Rs.1760/- with retrospective effect. Learned trial court has referred to Rule 39 of the Rajasthan Service Rules, which has been adopted by the defendant Corporation, which provides that when pay scale of an employee is sought to be revised upward, his personal pay has to be merged with his basic pay so as to determine as to at which stage he should be fixed in the next pay scale at the time of his promotion. Since selection scale is granted in lieu of promotion, the pay scale granted cannot be unilaterally withdrawn. Neither any notice nor opportunity of hearing was given to him.
Learned counsel for appellants, in support of his case, has cited judgments of Supreme Court in Deoki Nandan v. Murlidhar and Others AIR 1957 SC 133, and Messrs. Trojan & Co., v. RM. N.N. Nagappa Chettiar AIR 1953 SC 235, which, in the facts of present case, are not applicable.
Issues involved in the present case are all questions of fact and there is concurrent finding of facts by both the Courts below thereabout, which cannot be interfered with by this Court in second appeal under Section 100 CPC.
A three-Judges-Bench of the Hon'ble Supreme Court in Bholaram vs. Ameerchand- (1981) 2 SCC 414, considered the effect of amendment made in Section 100 of the CPC in 1976, and held as under:
......The High Court, however, seems to have justified its interference in second appeal mainly on the ground that the judgments of the courts below were perverse and were given in utter disregard of the important materials on the record particularly misconstruction of the rent note. Even if we accept the main reason given by the High Court the utmost that could be said was that the findings of fact by the courts below were wrong or grossly inexcusable but that by itself would not entitle the High Court to interfere in the absence of a clear error of law.
The Hon'ble Supreme Court, in Ramaswamy Kalingaryar Vs. Mathayan Padayachi-AIR 1992 SC 115, while considering the scope of Section 100 CPC, held as under:
......Suggested shortcomings in the findings of fact recorded by the Courts below would not alter the situation that those were findings of facts, unquestionable, under the provisions of S.100, C.P.C., which defines the contours of the power of the High Court in second appeal. .....
The Hon'ble Supreme Court in Gurdev Kaur & Others Vs. Kaki & Others-(2007) 1 SCC 546, considered the true import, scope and ambit of Section 100 CPC by referring the Section 100 CPC, before and after amendment of 1976, various declarations of law by Privy Council and Supreme Court, Legislative background in the 54th Report of the Law Commission of India submitted in 1973, Historical perspective, Rational behind permitting second appeal on substantial question of law, and held as under:
81. Despite repeated declarations of law by the judgments of this Court and the Privy Council for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case the High Court interfered with the pure findings of fact even after the amendment of Section 100 CPC in 1976. The High Court would not have been justified in interfering with the concurrent findings of fact in this case even prior to the amendment of Section 100 CPC. The judgment of the High Court is clearly against the provisions of Section 100 and in no uncertain terms clearly violates the legislative intention.
82. In view of the clear legislative mandate crystallized by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the High Court in law could not have interfered with pure findings of facts arrived at by the courts below. Consequently, the impugned judgment is set aside and this appeal is allowed with costs.
The Supreme Court in Dinesh Kumar Vs. Yusuf Ali, reported in (2010) 12 SCC 740, held that a second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence. The High Court should not entertain a second appeal unless it raises a substantial question of law. It is obligation on the court of law to further the clear intendment of the legislature and not to frustrate it by ignoring the same.
The Supreme Court in Kondiba Dagadu Kadam V. Savitri Bai Sopan Gujar - (1999) 3 SCC 722, has held that the second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this section. The question of law has to be distinguished from a substantial question of fact.
I have gone through the finding recorded by first appellate court on all the issues, which are of factual in nature and do not raise any question of law muchless any substantial question of law.
No substantial question of law is involved in this second appeal and same is dismissed at admission stage itself.
(Mohammad Rafiq) J.
//Jaiman//