Rajasthan High Court - Jaipur
R.S.R.T.C vs Bhanwar Lal Guarjar on 25 July, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil First Appeal No. 42 / 1992
1. Rajasthan State Road Transport Corporation, Parivahan Marg,
Jaipur (Raj.).
2. Divisional Mechanical Engineer, Rajasthan State Road Transport
Corporation, Divisional Workshop, Ajmer (Raj.).
3. Divisional Mechanical Engineer, Rajasthan State Road Transport
Corporation, Divisional Workshop, Jaipur (Raj.).
----Appellant
Versus
Bhanwar lal Gurjar S/o Late Sh. Mukana Ji Gurjar, resident of
House No.211/12, Rajendra Pura, Hathibhata, Ajmer (Raj.)
deceased through:-
(i) Smt. Barji Devi widow of Bhanwar Lal Gurjar
(ii) Shanker lal Son of Bhanwar Lal Gurjar
(iii) Smt. Sarita Daughter of Bhanwar lal Gurjar
(iv) Smt. Santosh Daughter of Bhanwar Lal Gurjar
Residents of Hameer Colony, Madanganj, Kishangarh, District
Ajmer (Raj.).
----Respondent
_____________________________________________________ For Appellant(s) : Mr. S.C. Mittal Adv.
For Respondent(s) : Mr. Ajay Gupta Adv.
_____________________________________________________ HON'BLE MR. JUSTICE JAINENDRA KUMAR RANKA Judgment Judgment Reserved on : 11/05/2017 Judgment Pronounced on : 25/07/2017
1. Plaintiff-respondent instituted a suit for declaration and receipt of back wages and other benefits against the defendant- appellant on 21/02/1987 with the assertion that while he was employed on the post of driver in the Corporation, defendant No.1, defendant No.2 served a charge-sheet dt.23.07.1979 upon hi m (2 of 15) [CFA-42/1992] whereupon Assistant Mechanical Engineer, Ajmer was appointed as the Enquiry Officer who submitted his report to defendant No.2. It was further asserted that defendant No.2 disagreed with such report and appointed one Shri T.C. Bhagat as Special Enquiry Officer. It was also asserted that a second charge-sheet No.382 dt. 11.06.1982 was also served upon the plaintiff by defendant No.2 and Shri T.C. Bhagat was again appointed as Enquiry Officer, who submitted his report to defendant No.3 whereupon vide order dt.29.11.1983 defendant No.3 terminated the services of the plaintiff. It was further asserted that against such termination order, plaintiff preferred an appeal before General Manager but the same was rejected vide order dt.22.02.1984. The plaintiff claimed that both these orders were void and ineffective and the main reasons were detailed as under:-
"(i) that once enquiry was completed by Assistant Mechanical Engineer with respect to one charge, appointment of Shri T.C. Bhagat as Special Enquiry Officer was per se illegal and against the principles of natural justice.
(ii) that the second charge-sheet was malafide and the plaintiff was not provided an opportunity to defend the same.
(iii) that the joint report submitted by Shri T.C. Bhagat with respect to the two charge-sheets was illegal.
(iv) that the copies of documents relied upon by the defendant was not provided to the plaintiff, nor finding of enquiry report was supplied to the plaintiff. Hence the plaintiff sought a declaration to the effect that his termination order dt.29.11.1983 as affirmed by Appellate order dt.22.02.1984 be declared void and ineffective, back wages and other benefits were also claimed.
2. The defendant-respondent entered appearance in suit and (3 of 15) [CFA-42/1992] seriously refuted the allegation of the plaint by submitting written statement. It was asserted that no illegality was committed by appointing Shri T.C. Bhagat as Special Enquiry Officer and none of the principles of natural justice were violated as the plaintiff was provided ample opportunity to defend, that the plaintiff did not demand any document nor the departmental rule caste any mandatory obligation upon the defendants to supply copy of the same, that no prejudice was caused to the plaintiff as he preferred a departmental appeal where also he was unsuccessful. Objection with respect to jurisdiction of the Civil Court was also raised.
3. Based upon pleading, the following issues were framed by the Trial Court which reads as under :-
"1- vk;k fd oknh dh lsokeqfDr vkns'k ,Dth- 1 uEcj 3239 fnukad 29-11-1983 ,oa vihysV vkWMZj ua-519 fnukad 22-02-1984 ,Dth- 2 okni= ds pj.k la[;k 12 esa of.kZr dkj.kksa ls xSjdkuwuh] voS/k] 'kwU;] vfLrRoghu ,oa vizHkko'khy gSA 2 vk;k fd izkFkhZ okni= ds pj.k la[;k 14 esa of.kZr ru[okg dh jkf'k :0 25]200@& izkIr djus dk vf/kdkjh gSA 3- vk;k fd izfrokn i= dh pj.k la[;k 23 esa of.kZr dkj.k ls bl U;k;ky; }kjk dksbZ vuqrks"k oknh dks ugha fn;k tk ldrkA 4- vk;k fd oknh us iw.kZ U;k; 'kqYd vnk ugha fd;k gSA 5- vk;k fd okn fe;kn ckgj gSA 6- vuqrks"kA"
4. The plaintiff entered into witness box as PW-1 and also submitted following documentary evidence:-
(4 of 15) [CFA-42/1992]
(i) Exhibit-1 :- Termination order dt.29.11.1983,
(ii) Exhibit-2:- Appellate Order dt.22.02.1984,
(iii) Exhibit-3:- Document No.397 dt.11.06.1982 with respect to appointment of Shri T.C. Bhagat for first charge-sheet dt. 23.07.1979, Exhibit-4:- Document No.1794 dt.23.07.1999 & Exhibit-5 :- Document No.382 dt. 11.06.1982.
5. Defendants produced DW-1 Shri T.C. Bhagat as their witness and submitted Exhibit-A-1:- enquiry report of second charge- sheet, Exhibit-A-2:- enquiry report of first charge-sheet, Exhibit-A- 3:- proceedings of charge.
6. Before the Trial Court, issue Nos. 4 & 5 were not pressed, issue No.3 relating with jurisdiction, was decided in favour of the plaintiff and it was held that the Civil Court was seized of the jurisdiction to decide the controversy raised. Issue No.2 relating to grant of back wages was decided against the plaintiff and the plaintiff was left open to make such claim before the Labour Court/appropriate Authority.
7. With respect to first charge, the Trial Court was of the opinion that appointment of Shri T.C. Bhagat as a Second Enquiry Officer was against the principles of natural justice for the disciplinary authority could only direct the first Enquiry Officer to pass further enquiry but could not appoint a Second Enquiry (5 of 15) [CFA-42/1992] Officer.
8. With respect to the second charge-sheet, all other objections raised by the plaintiff were rejected but the Trial Court was impressed by the fact that as copy of the Enquiry report of Shri T.C. Bhagat was not supplied to the plaintiff, principles of natural justice were violated and that prompted the Trial Court to declare the termination order as affirmed by the Appellate order as null and void and ineffective. Dissatisfied with the outcome the defendants are before this Court in Civil First Appeal.
9. Learned counsel for the appellant strenuously contended that the impugned judgment and decree is illegal and perverse and liable to be quashed. He contended that the controversy fell outside the jurisdiction of the Civil Court and was covered under the Industrial Disputes Act, 1947 and thus, the conclusion drawn by the Trial Court on issue No.3 suffered from the vice of arbitrariness and perversity.
10. He further contended that there was no violation of principles of natural justice in passing the termination order and mere appointment of Shri T.C. Bhagat as a Second Enquiry Officer by the disciplinary Authority could not be faulted for the reason that first Enquiry Officer had not exonerated the delinquent. He further stressed that the delinquent was provided ample opportunity to meet out the charge and the same could be gauged from the fact (6 of 15) [CFA-42/1992] that he preferred a departmental appeal without any impediment and the Trial Court's observation that non-supply of copy of the enquiry report violated principles of natural justice, was uncalled for.
11. In support of his contention, learned counsel for the appellant relied upon judgments:- Dwarkachand Vs. State of Rajasthan AIR 1958 Rajasthan 38 (V 45 C 12), Amarjit Singh Bhatnagar Vs. The State of Punjab and Another 1991 Lab. I.C. 1829, Smt. Shiv Chowdhary Vs. State of Rajasthan and Others 1999 (2) WLC 533, Union of India and Others Vs. Mohd. Ramzan Khan AIR 1991 SC 471 & Managing Director, ECIL, Hyderabad, etc Vs. B. Karunakar, etc. AIR 1994 SC 1074.
12. Per-contra, ld. counsel for the respondent vehemently contended that there was violation of principles of natural justice in passing the order of termination of the original respondent and in such a scenario only the Civil Court was vested with the jurisdiction to resolve the controversy and this issue has been settled by this Court.
13. He further submitted that there was no infirmity in the Trial Court's observation that the steps under taken by the respondent- Corporation resulted in infringement of the principles of natural justice and thus, the impugned judgment and decree was liable to (7 of 15) [CFA-42/1992] be sustained and in support of his contention, he relied upon judgments :- RSRTC & Another Vs. Gagan Kumar Jain in SB STR No.597/2007 decided on 04.11.2016, Kanailal Bera Vs. Union of India & Others (2007) 11 SCC 517, RSRTC & Others Vs. Suresh Chand Sharma in SB Civil Second Appeal No.443/2001 decided on 10.04.2017, K. R. Deb Vs. The Collector of Central Excise, Shillong AIR 1971 SC 1447 (v 58 c 297), RSRTC & Others Vs. Shri Ram Yadav 1995 (3) WLC 16, Ganesh Sen Vs. Union Bank of India & Others WLR 1991 (S) Raj. 444, Vishram Meena Vs. Rajasthan Gramin Bank in SB Civil Writ Petition No.9830/2006 decided on 20.02.2009, Union of India and Others Vs. Giriraj Sharma AIR 1994 SC 215, Hardwari Lal Vs. State of U.P. and Others AIR 2000 SC 277 & Union of India & Others Vs. Mohd. Ramzan Khan AIR 1991 SC 471.
14. I have heard learned counsel for the parties and have perused the material available on record and judgments relied upon by the counsel for the parties.
15. Insofar as the objection with respect to jurisdiction of Civil Court is concerned, this Court is of the opinion that the same is ill founded. Jurisdiction is to be ascertained on the basis of allegation in the plaint and in the instant case, plaint averments complained of violation of principles of natural justice. Various instances were enumerated in the plaint which according to the plaintiff violated principles of natural justice and in such a scenario Civil Court was (8 of 15) [CFA-42/1992] vested with the jurisdiction to decide such controversy raised, and the matter did not fall within the realm of Section-2 (K) read with Second Schedule of Industrial Disputes Act, 1947.
16. This Court in RSRTC & Another Vs. Gagan Kumar Jain in SB STR No.597/2007 decided on 04.11.2016 after taking into account number of judgments has held that where violation of principles of natural justice are alleged, the Civil Court is seized of the jurisdiction. Subsequently, this Court in SB Civil Second Appeal No.443/2001 (RSRTC & Others Vs. Suresh Chand Sharma) decided on 10.04.2017 has opined on the same line and this Court finds no reason to differ from the earlier opinion expressed, and thus, the conclusion drawn on the issue of jurisdiction cannot be faulted and the contention raised by the appellant in this behalf are repelled.
17. But allegation of principles of natural justice and the ultimate conclusion from the facts and circumstances of the case that whether such allegations were proved or not or whether in the given factual matrix non observations of principles of natural justice could be discerned or not are two different aspects. Allegations or averments are one thing and their ultimate sustainability is a different thing.
18. In the instant case, two factors which tilted the result in the plaintiff's favour were that in the opinion of the Trial Court (9 of 15) [CFA-42/1992] appointment of Second Enquiry Officer was bad in law and violated the principles of natural justice as far as the first charge was concerned. Non supply of copy of the enquiry report of Shri T.C. Bhagat resulted into violation of principles of natural justice as far as both the first and second charge were concerned. All other allegations raised by the plaintiff were not found good by the Trial Court. The Trial Court itself noted by perusal of Exhibit-A3 proceeding with respect to charge, it was apparent that the plaintiff was absent from time to time and he was provided opportunity to lead evidence as well as cross-examine the adversary witnesses, and thus, there was no violation of principles of natural justice on this count. The Trial Court further observed that the allegation of the plaintiff of not being provided an opportunity of representations were also not sustainable as the proceedings demonstrated otherwise, and thus, rejected the claim of the plaintiff on this count also.
19. But the Trial Court was impressed by the observations made by the Hon'ble Apex Court in K. R. Deb Vs. The Collector of Central Excise, Shillong AIR 1971 SC 1447 (v 58 c 297). The Trial Court noted such observations as under:-
"Civil Service- Central Civil Services (Classification, Control and Appeal) Rules (1957), Rule 15- Rule 15 does not contemplate successive inquiries-if there is some defect in the inquiry conducted by the inquiry Officer, the Disciplinary Authority can direct the inquiry officer to conduct further inquiries in respect of that matter but it cannot direct a fresh inquiry to be conducted by some other officer"
(10 of 15) [CFA-42/1992] Noting the above, the Trial Court concluded that appointment of Second Enquiry Officer was bad in law and the disciplinary Authority could only direct further enquiry but no fresh enquiry could be entrusted to a second officer.
20. This Court is of the opinion that the Trial Court misdirected itself in opining as above, for the vital aspect which escaped from the notice of the Trial Court was that such observations were made by the Hon'ble Supreme Court in a case where the First Enquiry Officer had exonerated the delinquent and further that the observations were made in the light of Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 which did not contemplate successive enquiry. It is not the case of the original respondent, in the instant lis, that he was exonerated by the First Enquiry Officer. No material has been placed on record to prove such facts and in absence of which, such fact could not be presumed. Further Rule 15 of Central Civil Services (Classification, Control and Appeal) Rules, 1957 were not in play in the instant case, rather Rule 16 (9) of the Rajasthan Civil Services (CCA) Rules, 1958 was applicable which is reproduced as under:-
"The Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge.
The Disciplinary Authority may while considering the report of the Inquiring Authority for just and sufficient reasons to be recorded in writing remand the case for further/de-novo enquiry, it case it has reason to believe that the enquiry already conducted has been laconic in some respect or the other."
(11 of 15) [CFA-42/1992]
21. The above provision clarifies that the disciplinary Authority was within their jurisdiction to appoint Shri T.C. Bhagat as Special Enquiry Officer in the facts and circumstances of the case and such procedure adopted did not cause any prejudice to the plaintiff-respondent and merely on this count, the termination order could not be brushed aside.
22. This Court in Smt. Shiv Chowdhary Vs. State of Rajasthan and Others (supra) has held as under:-
"Enquiry Officer not absolving petitioner but Enquiry Report not accepted by Disciplinary Authoirty- Enquiry Officer not examining even complainant and closing evidence- Enquiry not held properly- No prejudice caused to delinquent either- No illegality in ordering de novo enquiry by another enquiry officer."
23. There is no exoneration order and no allegation of any special biasness against Shri T.C. Bhagat and thus, in facts of the case, the ratio of the above judgment of this Court applied and the procedure adopted of appointment of Shri T.C. Bhagat cannot be faulted.
24. This brings this Court to the other factor which in the opinion of the Trial Court was violation of the principles of natural justice and i.e. the alleged non supply of copy of the enquiry report. This Court is of the opinion that the conclusion drawn by the Trial Court in this behalf also cannot be sustained. The reasons are not far fetched. Firstly the observations of the Trial Court are self (12 of 15) [CFA-42/1992] contrary. At one stage, the Trial Court noticing the proceeding sheet observed that the delinquent was provided an opportunity to not only lead evidence but also cross-examine the witnesses of the adversary and ample opportunity was provided to him but it was he who absented himself from the proceeding. It was further observed that there was no refusal for representation during the proceeding, while at another stage, the Trial Court was of the view that since copy of the enquiry report was not provided, there was violation of principles of natural justice. Supply of copy to the delinquent is a way to put him to notice about the charges of the case, he has to meet out. If the delinquent participate in the departmental enquiry, has been provided an opportunity to lead evidence, given the right to cross-examine the witness produced by the department and most importantly who assails the outcome with full vigor and strength before the Appellate Authority and after being unsuccessful in such assail cannot raise a blanket objection that he was not provided a copy of the enquiry report.
25. No answer is coming from the respondent-plaintiff that if he was unaware about the enquiry report, how he was able to prefer an appeal before the Appellate Authority and what prevented him from making such a demand during the course of proceeding in which he participated on and off. Shri T.C. Bhagat the Enquiry Officer entered into witness box as DW-1 and the plaintiff was provided an opportunity to cross-examine him and nowhere during the course of his cross-examination any material suggestion was put forth on behalf of the plaintiff which would reflect that inspite (13 of 15) [CFA-42/1992] of demand, of supply of such copy was purposely refused to him. Nor during his examination, the plaintiff has asserted that he was totally unaware of the details of the enquiry report and was prejudiced.
26. The proceedings demonstrate that he was fully aware of the case, he had to meet & the theory of non supply of copy of the enquiry report was nothing but farce, invented for the purpose of instituting the suit. Nothing was decided behind the back of the delinquent and no material was suppressed from the eyes of the delinquent and the delinquent had a fair opportunities to counter and meet the case and was never precluded from knowing the content and material against him. It is also to be noted that the enquiry report is of 21.06.1982 prior to the cut off date of 20.11.1990 decided by the Hon'ble Apex Court in the case of Union of India and Others Vs. Mohd. Ramzan Khan (supra). The Apex Court in such case though held that providing a copy of enquiry report to the delinquent was obligatory and non- adherence thereto would be violation of principles of natural justice and furnish a ground of challenge, but has made such ruling prospective in its application.
27. The Apex Court in its full Bench judgment in the case of Managing Director, ECIL, Hyderabad, etc Vs. B. Karunakar (supra) has affirmed the prospective ruling passed in Union of India and Others Vs. Mohd. Ramzan Khan (supra) as held :-
(14 of 15) [CFA-42/1992] "The need to make the law laid down in Mohd. Ramzan Khan's case, (AIR 1991 SC 471) (supra) prospective in operation requires no emphasis. As pointed out above, in view of the unsettled position of the law on the subject, the authorities/managements all over the country had proceeded on the basis that there was no need to furnish a copy of the report of the Inquiry Officer to the delinquent employee, and innumerable employees have been punished without giving them the copies of the reports. In some of the cases, the orders of punishment have long since become final while other cases are pending in courts at different stages. In many of the cases, the misconduct has been grave and in others the denial on the part of the management to furnish the report would ultimately prove to be no more than a technical mistake. To reopen all the disciplinary proceedings now would result in grave prejudice to administration which will far outweigh the benefit to the employees concerned. Both administrative reality and public interests do not, therefore, require that the orders of punishment passed prior to the decision in Mohd. Ramzan Khan's case (supra) without furnishing the report of the Inquiry Officer should be disturbed and the disciplinary proceedings which gave rise to the said orders should be reopened on that account. Hence we hold as above."
28. The case is also squarely covered by the ratio of the above judgment and thus, from a cumulative assessment of the emerging facts and circumstances, in view of the above discussion, the second factor which tilted the balance in favour of the respondent, is also not found to be sustainable.
29. Insofar as the rulings relied upon by the counsel for the respondent-plaintiff are concerned, mostly are with respect to jurisdiction of Civil Court and they need not be dilated for this Court has already concluded that jurisdiction vested with the Civil (15 of 15) [CFA-42/1992] Court, others are inapplicable to the distinguishing facts & circumstances of the case. A brief resume of the same is as under :
30. In Kanailal Bera Vs. Union of India & Others (supra) while interpreting Central Reserve Police Force Rules, it was held that once a delinquent was found only partially guilty, another enquiry could not be directed to be instituted on the self same charges which could not be proved in the first enquiry.
31. In RSRTC & Others Vs. Shri Ram Yadav (supra), the Division Bench of this Court has laid down the guidelines for observance by a disciplinary Authority.
32. In Ganesh Sen Vs. Union Bank of India & Others (supra), it was held:-
"The necessary requirement of Law is that no person can be condemned unheard and as such before taking any action against him terminating his services, it was necessary for the respondents to have informed regarding the allegation against him and the action proposed and there after giving an opportunity to show cause and for submitting the explanation and after hearing him, could have passed the order terminating the services."
33. Resultantly, the appeal succeeds and the judgment & decree passed by the Trial Court is quashed and set aside and the suit of the plaintiff, original respondent is dismissed with no order as to cost.
( JAINENDRA KUMAR RANKA),J S.Kumawat, Jr. P.A.