Gujarat High Court
Cotton Corporation Of India vs Ramnivas B Lohiya on 19 March, 2013
Author: C.L. Soni
Bench: C.L. Soni
COTTON CORPORATION OF INDIA LIMITEDV/SRAMNIVAS B LOHIYA....Respondent(s) C/SA/146/1998 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL NO. 146 of 1998 With SECOND APPEAL NO. 6 of 1999 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
No 2 To be referred to the Reporter or not ?
No 3 Whether their Lordships wish to see the fair copy of the judgment ?
No 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 ?
No 5 Whether it is to be circulated to the civil judge ?
No =========================================================== COTTON CORPORATION OF INDIA LIMITED & 1 Versus RAMNIVAS B LOHIYA ================================================================ Appearance:
MR JIGAR M PATEL for the Appellants MR DF AMIN for the Respondent ================================================================ CORAM:
HONOURABLE MR.JUSTICE C.L. SONI Date : 19/03/2013 CAV JUDGMENT
1. These appeals are filed against judgment and decree dated 24.9.1998 passed by the first Appellate Court in Regular Civil Appeal No. 84 of 1993. Second Appeal No.146 of 1998 is by the original defendants and Second Appeal No.6 of 1999 is by the original plaintiff.
2. Plaintiff filed Regular Civil Suit No.72 of 1986 to declare the order of his removal from service as well as to declare the order passed in departmental appeal confirming the order of removing the plaintiff from service as illegal, unreasonable, malafide and in breach of the principles of natural justice and to further declare the plaintiff to be in continuous service with all consequential benefits
3. The case of the plaintiff is that the plaintiff has been serving with the defendants for last 7 years and before that, he was serving in Maharashtra Marking Federation. From Maharashtra, he was transferred to the State of Rajasthan and then he was transferred in the State of Gujarat and in Gujarat, he was posted at Jambusar, Rampur, Tuwa-Timba and therefore, being tired of such frequent transfers, the plaintiff filed suit for injunction, which was allowed and confirmed by the District Court, against which appeal was preferred before the Gujarat High Court. But, during that time, on the ground that Tuwa center was closed, the suit could not be proceeded. It is further case of the plaintiff that on 1.5.1982, the plaintiff was served with charge-sheet. But, charges were not proved against the plaintiff in the inquiry. However, again, the plaintiff was served with second charge-sheet dated 24.6.1983 and placed under suspension. Allegation in the second charge-sheet was that the plaintiff did not report at Bavla around the period of 8.5.1983 and that though the plaintiff was given advance amount of Rs.300/- on 19.4.1993, the plaintiff did not report at Bavla and further that 25 TA claim bills were returned to the plaintiff for writing ticket numbers. The said bills were sent as it is on the ground that bus tickets were lost. It is case of the plaintiff that for the above-said charges, Inquiry Officer one Mr. Dudani was appointed but, the inquiry was conducted in violation of the principles of natural justice. The said inquiry was completed on 15.9.1984 and finding was given that charge Nos.1 and 3 were proved.
On the basis of such finding, order dated 9.10.1984 was passed, which the plaintiff received on 5.11.1984, as per which the plaintiff was ordered to be removed from service. Against the said order, the plaintiff had preferred Special Civil Application No. 5578 of 1984 but since the departmental appeal was not filed, the said petition was withdrawn and thereafter, the appeal was preferred before defendant No.2. However, the appeal was decided without hearing the plaintiff and the said appeal was dismissed, against which, writ petition, being Special Civil Application No.3149 of 1985 was preferred before the High Court but since the disputed questions of fact were involved, the same was withdrawn to file suit.
4. It is further case of the plaintiff that the plaintiff had reported at Bavla on 9.5.1983 but the officer at Bavla one Mr. Vahid did not give charge to the plaintiff on the ground that the plaintiff was late in resuming the duty and the plaintiff was sent at Ahmedabad on 11.5.1983, where the plaintiff was served with order of suspension. The plaintiff has averred that in the inquiry, neither the plaintiff was provided relevant documents nor was given sufficient opportunities of defending himself and the inquiry was conducted in gross violation of the principles of natural justice. The plaintiff has further stated that defendants have without considering the circumstances of the case and gravity of the charge, passed order of removal from service, which is very excessive in nature. Therefore, order removing the plaintiff from service is illegal, unreasonable and against the principles of natural justice.
5. Defendants resisted the suit by filing written statement at Exh.17 and took up stand that the suit is not maintainable and the Court has no jurisdiction to sit in appeal over the decision of the Domestic Tribunal, both Original and Appellate. It is further stated by the defendants that previous inquiry in which the charges were not proved against the plaintiff has nothing to do with the present inquiry and the charges against the plaintiff in the present inquiry were held proved after following due procedure. It is further stated that on the basis of the inquiry report, order of punishment was passed and the plaintiff withdrew his petition before the High Court against the said order. It is further stated that the Appellate Authority has also considered all the points raised by the plaintiff and the Appellate Authority has by elaborate order dismissed the appeal. Against this order also, the plaintiff preferred Special Civil Application No.3149 of 1985 and the same was also withdrawn by the plaintiff. It is further stated that the plaintiff was directed to proceed on tour to Bavla center of the defendants vide office order dated 5.4.1983, wherein it was mentioned that the plaintiff should resume duty by 11.4.1983. However, the plaintiff did not report at Bavla center till 8.5.1983. It is further stated that plaintiff did not inform about his inability to proceed at Bavla on tour and thereby the plaintiff disobeyed the order of his superior, which is nothing but a misconduct under Rule 5 of the Cotton Corporation of India (Conduct, Discipline and Appeal) Rules, 1975. It is further case of the defendants that the plaintiff was paid advance of Rs.300/- by DD No.215422 dated 19.4.1983, which was received by the plaintiff on 26.4.1983, still the plaintiff did not report at Bavla till 8.5.1983 and leaving this period, he never informed his inability to report his duty at Bavla. It is further stated by the defendants that the plaintiff was not present at headquarter at Tuwa till 27.4.1983 and since the plaintiff did not report at Bavla center till 8.5.1983, exigency of work was over and therefore, he was not allowed to join his duty on 9.5.1983 by Mr. M.A. Vahid, Center in-Charge at Bavla and the plaintiff was, therefore, asked to report at Ahmedabad and thereafter, the plaintiff was suspended by the defendants. After suspension, the plaintiff was charge-sheeted on 24.6.1983 and thereafter, Inquiry officer one Shri S.M. Dudani was appointed to inquire into the charges framed against the plaintiff and the said Inquiry Officer has submitted his report, as per which, the charges were held proved against the plaintiff and then by order dated 9.10.1984, the plaintiff was imposed major penalty of removal from service. Defendants have also denied that before receipt of the order dated 5.5.1983, the plaintiff had written letter to Shri M.A. Vahid at Bavla. Defendants also denied that the inquiry conducted against the plaintiff was not legal and proper and that inquiry was held with bias mind. It is further stated by the defendants that the plaintiff was given sufficient opportunities and the punishment imposed on the plaintiff is proportionate to the misconduct proved against the plaintiff.
6. On appreciation of the evidence, learned Trial Judge came to the conclusion that since the plaintiff was not provided with advance money to go on tour, the plaintiff demanded advance money, which was received by the plaintiff on 26.4.1983 but the plaintiff has then written letter dated 28.4.1983 to his Branch Manager, produced at Exh.62, showing his inability to proceed on tore for 10 to 12 days because of illness in his family. Learned Trial Judge has recorded that the Inquiry Officer has himself mentioned that this letter was never received in the Branch office at Ahmedabad and postal certificate has no value and cannot be relied on. Learned Trial Judge further recorded that the Inquiry Officer has no reason to disbelieve the certificate given by the Postal Department and the Inquiry Officer has acted as man of the department. Learned Trial Judge further observed that after completion of 10 days, the plaintiff reported on 9.5.1983 but Mr. Vahid, who was in-charge at Bavla, did not allow the plaintiff to resume duty and immediately, on the next day, the plaintiff was placed under suspension. Learned Trial Judge further came to the conclusion that so far as third charge regarding detaching the bus tickets from 25 TA bills is concerned, the Inquiry Officer has relied upon the report of Investigating Officer Mr. K.M. Choksi, at Exh.79. However, the same Investigating Officer has mentioned in his report that tickets submitted can be verified from the way bills of the S.T. conductor for correct date of issuing tickets and the bus route and he has suggested verification of the way bill of the conductor for some specific ticket numbers before coming to final conclusion. Learned Trial Judge further commented that report of the Investigating Officer was not conclusive as he has stated that the plaintiff might have used old tickets, which was his conjectures and definite conclusion. The said Investigating Officer has admitted in his cross-examination that TA bills were for last 7 months and all tickets for the said period were submitted together in TA bills and therefore, there was possibility of mention of some tickets as of another date. However, the Inquiry Officer has arrived at conclusion that plaintiff has intentionally detached the tickets from TA bills, which were sent back to the plaintiff for mentioning the ticket numbers. Learned Trial Judge further observed that if the plaintiff had not to submit tickets with TA bills, he would not have attached the tickets earlier with his TA bills. Learned Trial Judge further recorded that the plaintiff was not provided with copy of the inquiry report and the Disciplinary Authority had not considered the magnitude and nature of the charge leveled against the plaintiff. Learned Trial Judge further recorded that charge of disobeying the order of joining at Bavla and of detaching the tickets from TA bills, out of which, disputed bills were only of Rs.67/-, could not be said to be serious charges and therefore, the punishment did not commensurate with the gravity of misconduct. On such conclusion, learned Trial Judge allowed the suit and declared the order of removing the plaintiff from service as illegal, malafide and against the principles of natural justice and directed the defendants to reinstate the plaintiff in service with back wages.
7. Defendants, therefore, filed Regular Civil Appeal No.84 of 1993. Learned Appellate Judge though concurred with the findings recorded by learned Trial Judge on the first charge of not reporting for duty at Bavla, but differed with the finding recorded by learned Trial Judge on the third charge of submitting TA bills without tickets. Learned Appellate Judge has recorded that the plaintiff had attached tickets to TA bills but the said TA bills were given back to the plaintiff for writing dates of the tickets and their numbers. But, the plaintiff thereafter detached the tickets from TA bills. The plaintiff has provided explanation that he has lost the tickets but he has not explained how he lost tickets and therefore, learned Trial Judge has not rightly decided that the charge leveled against the plaintiff was not proved and the Court cannot sit in appeal over the decision of the departmental Inquiry Officer. On such conclusion, learned Appellate Judge confirmed the view that considering the magnitude of the offence, the case of the plaintiff is to be reconsidered and minor penalty to be imposed upon the plaintiff. Learned Appellate Judge, therefore, partly allowed the appeal and confirmed the judgment of the learned Trial Judge for reinstatement of the plaintiff in his service and directed the defendants to reconsider the penalties in view of the magnitude of the offence of the plaintiff and to impose minor penalty for the charges proved against the plaintiff.
8. Both the parties felt aggrieved by the above judgment and decree passed by the first Appellate Court. Both have therefore, filed appeals before this Court.
9. In second Appeal No.146 of 1998, the Court has formulated following substantial questions of law:-
(1) In view of the law laid down by the Supreme Court, whether the Courts below were justified in passing a decree for reinstatement, when the Civil Court had no jurisdiction to do so ?
(2) Whether in view of the law laid down by the Supreme Court, the Courts below, after confirming that the dismissal of the original plaintiff was bad and unsustainable, had the jurisdiction to pass a decree for reinstatement (with or without backwages) ?
(3) Whether in view of the law laid down by the Supreme Court, the Civil Court of ordinary jurisdiction could have passed a decree for reinstatement, which could only have been done by a special forum constituted under the Industrial Disputes Act ?
(4) Any other question which may arise during the course of hearing.
10. In Second Appeal No.6 of 1999, the Court has formulated following substantial questions of law:-
(1) Whether the Ld. Appellate Court is right in concluding that the 3rd charge of claiming false T.A. Bill is against the appellant, when it has clearly held in the earlier part of the judgment that copies of the relevant papers necessary for effective defence were not supplied to the appellant and thereby violated the principles of natural justice ?
(2) Whether the Ld. Appellate Court committed an error in not holding that the entire proceeding against the appellant had been vitiated for non-observance of principles of natural justice and hence, the impugned order of punishment was vitiated ?
(3) Whether the Ld. Appellate Judge has committed an error in approving the absence of the respondent in relying upon a circular of the Central Government with regard to issue of second show cause notice ignoring the rules in this behalf of the respondent Corporation itself ?
11. I have heard learned advocates for the parties.
12. Learned advocate Mr. Jigar M. Patel for the appellants in Second Appeal No.146 of 1998 and for the respondents in Second Appeal No.6 of 1999- original defendants submitted that the since charges against the plaintiff were proved in the departmental inquiry and since no illegality is pointed out in the decision making process in the inquiry, the Courts below were not justified in ordering reinstatement of the plaintiff. Mr. Patel submitted that defendant No.1- Cotton Corporation of India Limited is a company limited under the Companies Act and is not statutory Corporation and therefore, relation between the plaintiff and the company was contractual relation and therefore, Civil Court has no jurisdiction to entertain the suit of the plaintiff. He submitted that plaintiff was given sufficient opportunities in the inquiry and the Disciplinary Authority passed order of punishment on the basis of the finding recorded by the Inquiry Officer and therefore, the Civil Court was not competent to sit in appeal over the decision of the Disciplinary Authority. Mr. Patel submitted that the Appellate Authority in the departmental appeal also dealt with each of the points raised by the plaintiff and did not find any illegality either in the departmental inquiry or in the ultimate order passed by the Disciplinary Authority. Mr. Patel submitted that the plaintiff was facing serious charge of disobeying the order of superior officer of not reporting to Cotton Corporation Depot at Bavla though it is proved by evidence that plaintiff was given advance amount of Rs.300/- for the purpose of reporting at Bavla. Mr. Patel submitted that plaintiff also faced serious charge of presenting 25 TA bills without specifying numbers of the tickets and without attaching the tickets on the ground that he had lost tickets after TA bills were handed back to him for the purpose of writing numbers of the tickets. Mr. Patel submitted that plaintiff intentionally detached the tickets from TA bills by putting forward false ground of losing the tickets as the plaintiff otherwise could have been found to be claiming wrong benefits of traveling allowance. Mr. Patel submitted that by submitting such false TA bills, the plaintiff had acted against the interest of the defendants and since such serious charges were duly proved in the inquiry, the plaintiff was not entitled to any relief in the suit. Mr. Patel submitted that the Courts below have also no jurisdiction to interfere with the punishment imposed by the defendants on the ground that the punishment was not proportionate to the guilt established against the plaintiff. He submitted that once the charges were held to be proved and once the Disciplinary Authority as also the Appellate Authority had considered the question about imposition of punishment and when punishment of removing the plaintiff from service was imposed, the Courts below could not have sit in appeal over such decision of the competent authority on the ground that the punishment was not proportionate to the misconduct established. Mr. Patel submitted that Civil Court had no jurisdiction to order reinstatement of the plaintiff with back wages and could have at the best passed decree for declaration declaring the order of removal from service as bad in law and the forum for passing order of reinstatement was under the Industrial Disputes Act. He thus urged to allow the appeal of the defendants and dismiss the appeal of the plaintiff.
12.1. Learned advocate Mr. Patel has relied on the following authorities:-
(1) In the case of Jitendra Nath Biswas Vs. M/s. Empire of India and Ceylone Tea Co. and Another reported in AIR 1990 SC 255;
(2) In the case of Executive Committee of Vaish Degree College, Shamli and others Vs. Lakshmi Narain and others reported in AIR 1976 SC 888;
In the case of Indian Airlines Corporation Vs. Sukhdeo Rai reported in 1971 SC 1828;
In the case of State of U.P. And Another Vs. Man Mohan Nath Sinha and Another reported in AIR 2010 SC 137;
In the case of R.S. Saini Vs. State of Punjab and others reported in AIR 1999 SC 3579;
(6) In the case of State of Meghalaya and others Vs. Mecken Singh N. Marak reported in AIR 2008 SC 2862;
(7) In the case of I. Laxma Reddy Vs. A.P.S.R.T.C. reported in (2007)13 SCC 415.
13. As against the above arguments, learned advocate Mr. Amin for the appellant in Second Appeal No.6 of 1999 and for the respondent in Second Appeal No.146 of 1998- original plaintiff submitted that record of the case clearly reveals victimization of the plaintiff at the hands of the defendants. Mr. Amin submitted that plaintiff since was subjected to frequent transfers had filed one Civil Suit, wherein the competent Court had granted injunction against his transfer, which came to be confirmed by the Appellate Court and thereafter, the plaintiff was served with charge-sheet and was subjected to departmental inquiry, wherein he was fully exonerated. Mr. Amin submitted that immediately thereafter, the plaintiff was ordered to go on tour at Bavla. The plaintiff was not given salary for about two months and had no fund to go at Bavla and therefore, the plaintiff requested to provide him advance amount to enable him to go to Bavla. Mr. Amin submitted that after a period of 14 days, the plaintiff was sent with draft for Rs.300/-, which the plaintiff received on 26.4.1983 but at that time, the plaintiff was required to go to his hometown to attend illness of one of his family members and he, therefore, immediately sent an application for extension of time to report at Bavla through Under Postal Certificate, which was received by the defendants. Mr. Amin submitted that first charge is that the plaintiff has disobeyed the order of his superior to report at Bavla without informing the Branch about his inability to join at his headquarter. Mr. Amin submitted that the plaintiff has already proved sending of application showing his inability to join at Bavla by presenting receipt of Under Postal Certificate from the postal department. He submitted that immediately after coming back, the plaintiff had gone to resume duty at Bavla but was not permitted to resume by the officer in-charge at Bavla and on the next day, the plaintiff was suspended. Mr. Amin submitted that in view of the above facts, there was no disobedience of the order of superior and therefore, there was no misconduct committed by the plaintiff. Mr. Amin submitted that second charge in fact is part of the first charge, whereby the plaintiff was stated to remain absent from duty unauthorizedly earlier also on many occasions, for which, he was warned to refrain, which he failed to do so and, therefore, the plaintiff was stated to have behaved irresponsibly, which is defined as misconduct in Rule V(vii) and (viii) of the Cotton Corporation of India Rules, 1975. Mr. Amin submitted that this charge of absenteeism from duty unauthorizedly on many occasions could not be proved against the plaintiff. Mr. Amin submitted that so far as 3rd charge is concerned, it could neither be said to be misconduct nor could be said to have been proved by any evidence. He submitted that plaintiff had submitted TA bills with all tickets. However, in respect of the TA bills submitted by the plaintiff, investigation was handed over to find out whether the plaintiff had made correct claim or not. Along with TA bills of the plaintiff, there were other TA bills also but in no case, the Manger has thought it fit to handover the investigation. Mr. Amin submitted that TA bills were returned to the plaintiff with tickets to write ticket numbers in the TA bills and the plaintiff has explained before the Inquiry Officer that the place where he was working was not having enough facility to place TA bills with tickets and the tickets placed with TA bills were lost and therefore, could not be submitted with TA bills. Mr. Amin submitted that most of the tickets for which TA bills were submitted were in respect of the travel undertaken by the plaintiff to attend earlier inquiry and in the earlier inquiry, the plaintiff came to be exonerated fully and keeping grudge against the plaintiff, such TA bills were sent for investigation. Mr. Amin submitted that if the plaintiff wanted to hide any ticket or intentionally made false claim in respect of any ticket, the plaintiff would not have attached tickets with TA bills at first point of time when TA bills were placed for consideration. Mr. Amin submitted that TA bills were for the period of about 7 months and it was possible not to find out correct numbers of some of the tickets. Mr. Amin submitted that plaintiff had not taken any monetary advantage from such TA bills but instead, the plaintiff faced inquiry in respect of such TA bills. Mr. Amin submitted that the Investigating Officer, who conducted investigation and submitted his report, also stated in his report and in evidence before the Inquiry Officer that some more inquiry was required. Mr. Amin submitted that the plaintiff was deprived of the material collected by the Inquiry Officer and on the basis of investigation, the above-said charge was held to be proved against the plaintiff. Mr. Amin submitted that evidence of Investigating Officer could not be said to be evidence in the eye of law to prove the said charge against the plaintiff.
13.1. Learned advocate Mr. Amin further submitted that since there was no legal evidence adduced before the Inquiry Officer, it was a case of no evidence against the plaintiff. He submitted that since grievance before the Civil Court was about non-observance of the principles of natural justice as also about no evidence in the inquiry for proving the charges against the plaintiff and since defendant No.1- Cotton Corporation of India is a statutory Corporation under the Food Control of Union of India, the Civil Court has jurisdiction to entertain the nature of the suit filed by the plaintiff and was competent to order reinstatement of the plaintiff with back wages. Mr. Amin submitted that Appellate Court was not justified in holding that charge No.3 against the plaintiff was proved. Appellate Court has not assigned cogent reasons for reversing the findings recorded by learned Trial Judge and therefore, Appellate Court could be said to have committed serious error in reversing the findings of Trial Court on such issue. Mr. Amin submitted that charges against the plaintiff were not of serious nature and once Civil Court had exercised jurisdiction on the finding that charges against plaintiff could not be said to have been proved, the first Appellate Court was not justified in partly allowing the appeal and taking away the consequential benefits granted to the plaintiff and ordering imposition of minor penalty. Mr. Amin thus submitted that appeal filed by the defendants is required to be dismissed and appeal of the plaintiff is required to be allowed. Mr. Patel, however, fairly submitted that plaintiff has already crossed the age of superannuation and is ready to accept only notional benefits flowing from continuous service of the plaintiff till the age of his superannuation without benefit of back wages or other monetary benefits during the period of service. He thus urged to confirm the order of reinstatement and to grant benefit of continuity of service and retrial benefits on the basis of such continuous service.
14. Having heard learned advocates for the parties and having perused the judgment and decree passed by the Courts below with record and proceedings, it appears that the plaintiff, who was earlier serving in State of Maharashtra, came to be posted in State of Gujarat and then transferred at different places. The plaintiff had challenged such frequent transfers by filing a suit. As per the case of the plaintiff, said suit was not proceeded because the said center where the plaintiff was transferred was closed. However, the plaintiff was subjected to inquiry for below mentioned Articles of Charge:-
1. The said Shri R.B.Lohiya, Cotton Purchaser presently posted at Purchase Centre, Tuwa was called to Branch Officer, Ahmedabad for filed staff meeting on 16.11.81 by telegram dated 13.11.81. Shri Lohiya failed to attend the meeting. Even Shri Lohia did not care to inform about his inability to attend the meeting on telephone or telephonically. Shri Lohia has, therefore, willfully disobeyed the orders of the superiors, defined as Misconduct under Rule 5(vii) of CCI (CDA) Rules, 1975.
2. The aforesaid Shri R.B. Lohiya, Cotton Purchaser posted at present at Tuwa abstained from the his duty unauthorizedly during the month of July and August 1981. Shri Lohiya proceeded on leave from 24.7.81 to 29.7.81 and did not care to apply for further extension till 24.7.81 to 29.7.81 and when his application dated 20.8.81 was received on 4.9.81, Shri Lohiya has been abstaining authorisedly from his duty on many occasions earlier as well as for which he was warned to refrain which he failed to do so. Shri Lohiya has, therefore, behaved irresponsibility defined as misconduct under Rule V(viii), (ix) of CCI (CDA) Rules, 1975.
3. The aforesaid Shri R.B. Lohiya Cotton Purchase at present posted at Tuva was directed to report to Dr. P.P. Mehta, Authorized Medical Attendant of the Corporation, vide letter No.CCI/AHD/ES/1(388)/8182/1441 dated 25.9.81. Shri Lohiya did not care to report to Dr. Mehta. Shri Lohiya has acted delinquently defined as misconduct under Rule 5(vii) and (xii) of CCI (CDA) Rules, 1975.
4. That aforesaid Shri Lohiya has been careless in purchase and processing during 1980-81, season resulting in shortage to the extent of 2.49 in case of S.4 and 4.46 % in case of Digvijaya, Shri Lohiya did not care to explain this lapse when asked vide D.C. Letter No.1812324 dated 17.7.81. Shri Lohiya has therefore, been delinquent in his conduct defined as Misconduct under Rule 5(vii) and (xxii) of CCI (CDA) Rules, 1975.
5. Shri R.B. Lohiya, cotton purchaser posted at Tuva centre has no been supervising the weighment of kapas purchased by him properly. More than one incident has been brought to the notice wherein he had not cared to take both gross and tare weight of the carts trucks purchased by him, which has resulted on loss to the corporation.
Probably, due to his carelessness, the shortage percentage in Heap No.1 of Digvijay during the current season has been found to be as high as 4.21%.
There is no dispute about the fact that plaintiff was exonerated of all the above-charges in the said inquiry.
15. The plaintiff was then served with a second charge-sheet for three different charges and after holding inquiry against the plaintiff, the plaintiff was removed from service. It appears that plaintiff had challenged the order of his removal from service by filing a petition before this Court, which came to be withdrawn with a view to avail the remedy of departmental appeal. Decision in appeal went against the plaintiff. The plaintiff then preferred petition before this Court but withdrew the same to file suit. The plaintiff thus filed present suit.
15.1. The second inquiry held against the plaintiff is for following articles of charges:-
1. The said Shri R.B. Lohiya, Cotton Purchaser, Tuwa was directed to proceed on tour to Bavla centre vide Office Order No.CCI/AHD/ADM/2(14)/82-83/11766 dated 5.4.83. Shri Lohiya failed to report at Purchase Centre, Bavla till 8.5.83. Even Shri Lohiya never informed the Competent Authority his inability to proceed to Bavla on tour. Shri Lohiya has therefore willfully disobeyed the orders of his superiors defined as Misconduct under Rule 5(V) and (vii) or the Cotton Corporation of India (Conduct, Discipline & Appeal) Rules, 1975.
2. The aforesaid Shri R.B. Lohiya presently under suspension was paid an advance of Rs.300/- vide D.D. No.215422 dated 19.4.83 which was received by him on 26.4.83 towards tour advance. But even on receipt of this amount, Shri Lohiya failed to report on duty at Bavla till 8.5.83 and he never informed the Branch about his inability to join at his H.Q. Shri Lohiya has been abstaining from his duties unauthrisedly on many occasions earlier also for which he was warned to refrain which he failed to do so. Shri Lohiya therefore behaved irresponsibly defined as Misconduct under Rule V(vii) and
(viii) of the CCI (CDA) Rules, 1975.
3. The said Shri Lohiya had submitted T.A. Claims to this Branch. The said 25 bills (T.A. Claims) were returned to Shri Lohiya vide letter No.CCI/AHD/ADM/TA/82-83/11918 dated 5.4.83 for mentioning the ticket numbers in each claim. Shri Lohiya instead of re-submitting the claims after filing up the column of ticket nos., returned the T.A. Bills to the Branch without any bus ticket stating that the tickets are lost. Tickets are enclosed with each T.A. Claims and losing tickets of all the 25 claims clearly shows that Shri Lohiya intentionally detached the bus tickets from T.A. Claims for hiding the facts about his irregular amounts claimed from the Corporation. Shri Lohiya has therefore been delinquent in his conduct defined as Misconduct under Rule V(v) of the CCI (CDA) Rules, 1975.
16. First two articles of charge are for not reporting duty at Bavla and thereby disobeying the order of superior and absenteeism of the plaintiff on many occasions. As per Articles of charge, by order dated 5.4.1983, the plaintiff was directed to report on tour at Bavla center. The plaintiff failed to report till 8.5.1983. There is no dispute about the fact that the plaintiff came to be given advance money of Rs.300/- for reporting at Bavla by Demand Draft dated 19.4.1983, which the plaintiff received on 26.4.1983. It is the case of the plaintiff that after 26.4.1983, plaintiff could not report for duty for about 10 days because he was required to go to attend his ailing family member. The plaintiff had sent application Exh.62 seeking time to report at Bavla by Under Postal Certificate. Copy of Under Postal Certificate is placed on record by the plaintiff at Exh.63, which was produced in the inquiry with his written statement. Surprisingly and as commented by the Courts below, the Inquiry Officer denied to have received such application sent by the plaintiff. Inquiry Officer further stated that even if such application was sent by applicant, fact that the applicant did not join at Bavla for 10 days after he received demand draft on 26.4.1983, was an act of disobeying the order of superior officer, which is a misconduct under the Rules. For this charge, the Courts below have found that this charge could not be said to have been proved against the plaintiff because there was no evidence of disobeying the order of superior. What is stated in Article of Charge is that the plaintiff has never informed the competent authority about his inability to proceed at Bavla on tour and therefore, he willfully disobeyed the order of superior officer, which is a misconduct. This charge about not informing the competent authority of plaintiff s inability to proceed to Bavla on tour is not supported by any evidence. In fact, the plaintiff has proved by evidence of Under Postal Certificate that the plaintiff had sent application to inform about his inability to proceed to Bavla on account of illness of his family member. Therefore, it is a case of no evidence so far as this charge of not informing about the inability of the plaintiff to proceed to Bavla is concerned. The Courts below have, therefore, rightly held that there was no evidence to prove such charge. It is required to be noted that on expiry of 10 days, for which period, the plaintiff had shown inability to report at Bavla, the plaintiff went to report on 9.5.1983, but was not permitted to report on the ground that there was no exigency of work and the plaintiff was then sent back at headquarter where he was served with the order of suspension.
17. Second limb of this article of charge is that the plaintiff has been abstaining himself from duty on many occasions. But, this charge is held not proved by the Inquiry Officer.
18. Third charge about the plaintiff presenting TA bills by intentionally detaching bus tickets therefrom is concerned, following facts from the admitted evidence are required to be taken note of.
18.1. The plaintiff in his evidence at Exh.61 has stated that 25 TA bills placed by him were for tours made by him at Ahmedabad for the purpose of attending earlier inquiry. He has stated that he was not given papers of preliminary inquiry and the inquiry was conducted in English and he did not know English or Gujarati.
At this stage, it is required to be noted that one of the witnesses of the department Smt. Omana Nair, before whom TA bills were placed by the plaintiff, has stated that along with TA bills of the plaintiff, other employees had also submitted their TA bills, but she was asked by the Manager to handover TA bills only of the plaintiff for investigation. The plaintiff was then handed over TA bills for writing ticket numbers and then to submit. Since the plaintiff presented TA bills without attaching tickets, the plaintiff s intention was doubted so as to charge him for making claim of irregular amount in the TA bills. This charge is held proved in the inquiry on the evidence of Investigating Officer one Shri K.M. Choksi, who stated that he contacted Gujarat State Road Transport Corporation authorities at Ahmedabad, Anand, Nadiad, Borsad and Godhra and confirmed that TA claims were not matching with dates of the tickets. Relying on the evidence of Mr. Choksi and Smt. Omana Nair and considering the fact of not attaching the tickets by the plaintiff with TA bills, the Inquiry Officer held that the plaintiff intentionally detached tickets from his 25 TA bills for hiding the fact to claim irregular amounts from the Corporation.
18.3. At this stage, it is required to be noted that this second inquiry was commenced against the plaintiff within very short period after the first inquiry was over, wherein the plaintiff was exonerated from all charges. After the plaintiff was not permitted to resume at Bavla center and when he was sent back to headquarter, he was handed over the order of suspension and then made to face second inquiry. Most of the TA bills were in respect of the tours made by the plaintiff to attend the earlier inquiry and the plaintiff has provided the circumstances in which tickets were not attached when he second time produced TA bills. As confirmed by learned advocates for the parties, amount of TA bills of the plaintiff has not been paid to the plaintiff. However, on the charge that the plaintiff intentionally detached tickets from TA bills and on the charge that the plaintiff did not report at Bavla center after he was asked to report at the said place, the plaintiff came to be removed from service. As regard charge of detaching tickets from TA bills is concerned, Mr. Choksi, who was examined as witness of the department in the inquiry, has in his cross-examination stated as under:-
I had no discussions with the Branch Manager on this. I gave him my report. I had consulted the Presenting Officer about the attendance of Shri Lohiya in the previous enquiry. In consultation, I found that Shri Lohiya had attended enquiry on those dates. I saw only Registers of tickets issued at the Dep. I did not see the way bills. After submission of my report also, I did not have any discussion. I am working in CCI for the last ten years. I don t understand what Lohiya says in Hindi. Unnimit Rashi. There are some dates on which he has not toured for which also he has claimed. Tour is admissible by direct route and also by indicate route if the bus is not available on the direct routes. In that case, claim will not be false for the indirect routes. I received about 25 T.A. Bills of Shri Lohiya from Mrs. Nair. With each bills, tickets were attached. The bills had come with file, there were no separate lists. As the tickets were attached with the T.A. Bills of Shri Lohiya, it was understood that the tickets were submitted by Shri Lohiya. The tickets were tallying with the details in the T.A. Bills. The question does not arise that the tickets of other would be attached to the T.A. Bills of Shri Lohiya. The tickets were attached with stapler pins and therefore there was no possibility of somebody else ticket getting attached with the bills of Shri Lohiya. He had submitted is claim about 6 to 8 months after the dates of tour and it is possible that he might have attached tickets of other tours. As Shri Lohiya had not toured on the dates for which he submitted the tickets, it was inferred that he had taken these tickets from other passengers or persons. As purchase centres, ginning factory people allow them to use their furniture. For investigation, I had gone to Tuwa centre. Shri Lohiya was not there. I did not go to the ginning factory at Tuwa. I had met postman at Tuwa. I made entries from postman about letters sent to Shri Lohiya. I do not remember whether any T.A. Bills have been passed without ticket or ticket numbers. I had not met ST authorities after submitting my report. I got the T.A. Bills in March 1983 for investigation. I have opinion that Rule No.V is violated but the decision had to be of the Branch Manager. If any bill is claimed on actual tour, it is for the competent authority to pass it or not. I had read his tour reports, he had written the time of departure from Tuwa and arrival at Ahmedabad. I am shown the report dated 17.9.82 in which he has written why he has come one day earlier because it was necessary to come in time for the enquiry which was to begin in the morning. Ex.,S-12.
This witness in his report at Exh.79 has stated that the plaintiff had made TA claims after about 6 to 8 months putting all tickets together. It is stated that the plaintiff might have collected some tickets from other passengers and might have used old tickets for TA claims. It is further stated that there was no bus from Borsad Depot between Tuwa and Ahmedabad and it is suspected that tickets produced by the plaintiff are of other route or collected from somebody. What is lastly observed in the report is as under:-
However, before coming to final conclusion, it is suggested that we may verify way bill of the conductors for some specific ticket numbers as stated by the ST Department as actual date of ticket issued to the passengers will be available from way bills only. Divisional office of the ST Depot keeps hundreds of way bills in their old records, hence, it takes time to find out particular dates way bill to verify the actual date of ticket issued by the conductor to the passenger.
Therefore, it feels that we can get very useful information from ST department if we go in deep to establish misconduct under Rule 5 of CDA Rules of Sh. R.B. Lohiya, C.P. 18.4. The above was hazy conclusion of the Investigating Officer, which was sole piece of evidence relied on before the Inquiry Officer to hold that third charge against the plaintiff was proved. In my view, such could never be stated to be evidence to prove the said charge against the plaintiff. Therefore, it was also a case of no evidence for proving the third charge against the plaintiff.
18.5. Trial Court has recorded that initiation of inquiry against the plaintiff was malafide one because the plaintiff was exonerated in the earlier inquiry and because the plaintiff had earlier filed suit against his frequent transfers.
19. Considering the report of the Inquiry Officer with evidence available on record of the case, I am of the view that the Trial Court had not committed any error in coming to the conclusion that it was a case of no evidence against the plaintiff and, therefore, the order removing the plaintiff from service was in violation of the principles of natural justice and thus null and void. Appellate Court, therefore, had no reason to hold that Trial Court had committed error in holding that it was a case of no evidence for third charge. Appellate Court, therefore, was not justified in partly allowing the appeal and in directing to reconsider the question of penalty in view of the magnitude of the offence (charge levelled against the plaintiff) of the plaintiff and to impose minor penalty for the charges proved against the plaintiff while confirming the judgment and decree of the Trial Court for reinstatement of the plaintiff in service.
20. At this stage, judgments relied on by learned advocate Mr. Patel need to be considered.
20.1. To press his point that the Civil Court had no jurisdiction for passing the decree for reinstatement in service of the plaintiff and the Civil Court could not have further awarded back wages, even after it is held that dismissal of the plaintiff from service was bad and unsustainable, Mr. Patel has relied on the decisions in the case of Jitendra Nath (supra) and in the case of Executive Committee of Vaish Degree College (supra).
It is true that in ordinary circumstances, in absence of complaint about violation of the principles of natural justice, Civil Court is not competent to entertain the suit in service matter in respect of the order of punishment and for consequential order of reinstatement. However, as held by the Hon ble Supreme Court in the case of Rajasthan State Road Transport Corporation and Another Vs. Bal Mukund Bairwa (2) reported in (2009)4 SCC 299, wherever there is complaint about breach of the principles of natural justice or violation of the statutory Rules or violation of Common Law Rule and constitutional provisions, Civil Court is competent to entertain the suit and to pass further order of reinstatement and consequential benefits. Civil Court s jurisdiction in service matter is barred only when grievance in the suit is about violation of the provisions of the Industrial Disputes Act or Standing Order, as the case may be. Present is not the case where the plaintiff has alleged violation of the Standing Orders or the provisions of the Industrial Disputes Act. Plaintiff has come out with a case that inquiry was conducted in gross violation of the principles of natural justice by not giving him sufficient opportunities to defend himself and that it was a case of no evidence against him. In my view, in such circumstances, the Civil Court was competent to entertain the nature of the suit filed by the plaintiff. Mr. Patel, however, submitted that the defendant No.1 is a company and is not a statutory Corporation and its employees are governed by the regulations framed by it and therefore, even if there was violation of such regulation, Civil Court was not competent to grant decree of reinstatement and it was for the plaintiff to seek such relief before the Industrial Forum. For this purpose, Mr. Patel has relied on the decision in the case of Jitendra Nath (supra) and in the case of Indian Airlines Corporation (supra).
20.3. In the case of Indian Airlines Corporation, it was found that dismissal of the employee was contrary to the terms of the Regulations. Procedure as per the regulation was not followed. In the case of Jitendra Nath, the Hon ble Supreme Court has held that right of the workman to get reinstatement was governed by the Industrial Disputes Act if order of termination of such employee is found not in accordance with the Standing Orders. In the present case, though violation of provision of the Industrial Disputes Act is not complained, still the question is whether the Civil Court was competent to grant reinstatement and consequential relief against the defendant who is not State or statutory Corporation. Karnataka High Court in decision reported in the case of COTTON CORPORATION OF INDIA LIMITED, BANGALORE Vs. G.C. Odusumath reported in 1999(1) LLJ 19 has held that defendant No.1 is not a statutory Corporation. Learned advocate Mr. Amin for the plaintiff could not bring to the notice of the Court any contrary decision whereby defendant No.1 is held to be statutory Corporation. Therefore, even if the suit of the plaintiff was maintainable before the Civil Court, the only relief which the Civil Court could have granted was to give declaration about the invalidity of the punishing order, based on which the plaintiff could be at the best made entitled for compensation for his wrongful removal from service. Therefore, while maintaining the decree of the Trial Court for declaring the punishing order as null and void, decree for reinstatement and consequential benefits is required to be modified by holding that the plaintiff is entitled for compensation for his wrongful removal from service. In view of the decision in the case of Bal Mukund Bairwa (supra), the other judgments cited by learned advocate Mr. Patel need not be considered.
21. It is brought to the notice of the Court that pending the appeals, by way of interim order, the defendant Corporation was directed to deposit Rs. 1,00,000/- and the plaintiff was permitted to withdraw the said amount on furnishing security.
22. Plaintiff filed the suit in the year 1986. Plaintiff all throughout pursued his remedy and passed many years waiting for ultimate result of the proceedings. When the impugned order of removal from service was passed, the plaintiff was left with long span of service. Plaintiff has thus suffered not only great monetary loss but good amount of expenses to pursue his remedy before different Courts. Therefore, in my view, since the order of his removal is held to be null and void, the plaintiff could be awarded compensation of Rs.2,00,000/-. Since the plaintiff has already been paid Rs.1,00,000/-, the plaintiff is now entitled to receive Rs.1,00,000/- from the defendants.
23. In the result, both the appeals are partly allowed. Judgment and decree of the Courts below declaring the order of removal of the plaintiff as null and void is confirmed. However, so far as judgment and decree of reinstatement and back-wages is concerned, the same is quashed and set aside. Plaintiff is held entitled for compensation of Rs.2,00,000/-, to be recovered from the defendants. Since the plaintiff is already paid Rs.1,00,000/-, the plaintiff shall now be entitled to Rs.1,00,000/- more from the defendants. Defendants are directed to pay the said amount to the plaintiff within a period of three months from the receipt of the copy of this judgment. If this amount of Rs.1,00,000/- is not paid within the time stipulated, the plaintiff shall be entitled to interest at the rate of 9% per annum thereafter till the plaintiff is paid the said amount by the defendants.
24. Decree shall stand modified accordingly.
25. Record and Proceedings to be sent back forthwith.
Sd/-
(C.L. SONI, J.) omkar Page 25 of 25