Karnataka High Court
The Ksrtc By Its vs Andappa S/O Veerappa Guggari on 7 February, 2014
Author: A.V.Chandrashekara
Bench: A.V. Chandrashekara
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 7TH DAY OF FEBRUARY 2014
PRESENT
THE HON'BLE MR. JUSTICE A.V. CHANDRASHEKARA
R.S.A. No. 5051/2008 C/W R.S.A. NO. 5397/2010
& R.S.A. NO. 2551/2007 (DEC)
IN R.S.A. NO. 5051/2008 (DEC)
BETWEEN:
1. THE K.S.R.T.C. BY ITS
DIVISIONAL CONTROLLER,
GADAG DIVISION, GADAG.
2. THE DIVISIONAL TRAFFIC OFFICER,
GADAG.
- APPELLANTS
(BY SRI RAVI V. HOSAMANI, AND
SRI. SHIVAKUMAR S. BADAWADGI, ADVOCATES)
AND:
ANDAPPA S/O VEERAPPA GUGGARI
@ ANDANAPPA, MAJOR,
RETIRED CONDUCTOR,
R/O HALEPET ONI, MUNDARGI,
DIST. GADAG.
- RESPONDENT
(BY SRI ANANT. P. SAVADI, ADVOCATE)
THIS R.S.A. IS FILED U/S 100 OF CPC AGAINST THE
JUDGMENT & DECREE DATED 30.01.2008 PASSED IN R.A. NO.
98/2002 ON THE FILE OF THE ADDL. CIVIL JUDGE (SR. DN.), GADAG,
DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT & DECREE
DATED 31.10.1998 PASSED IN O.S. NO. 342/1997 ON THE FILE OF
PRL. CIVIL JUDGE (JR. DN.), GADAG, FILED FOR DECLARATION &
ETC.
2
IN R.S.A. No. 5397/2010:
BETWEEN:
THE MANAGEMENT OF KSRTC
NOW IT IS CALLED THE NWKRTC
BY ITS WORKS MANAGER,
REPRESENTED BY ITS
CHIEF LAW OFFICER,
CENTRAL OFFICE, HUBLI-580 001.
- APPELLANT
(BY SRI RAVI V. HOSAMANI, AND
SRI SHIVAKUMAR S. BADAWADGI , ADVOCATES)
AND:
FRANCIS CHRISTOFER BETAGERI,,
MAJOR, ASST. ARTISAN,
NWKRTC, R/O HUBLI-580 001.
- RESPONDENT
(BY SRI ANANT. P. SAVADI &
SMT. SAROJA BANAKAR, ADVOCATES)
THIS R.S.A. IS FILED U/S 100 OF CPC AGAINST THE
JUDGMENT & DECREE DATED 03.12.2009 PASSED IN R.A. NO.
108/2001 ON THE FILE OF THE I ADDL. CIVIL JUDGE (SR. DN.),
HUBLI, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT &
DECREE DATED 10.11.2000 PASSED IN O.S. NO. 51/1999 ON THE
FILE OF IV ADDL. CIVIL JUDGE (JR. DN.), HUBLI , FILED FOR
DECLARATION & ETC.
IN R.S.A. No. 2551/2007:
BETWEEN:
SRI RAJENDRA,
S/O SABANNA ARAKERI,
AGE: MAJOR, R/O RAJADHANI COLONY,
GOKUL ROAD, HUBLI-580 020.
- APPELLANT
(BY SRI ANANT P. SAVADI, C.G. CHAGASHETTI,
S.P. MADHUKARA , ADVOCATES)
AND:
3
THE MANAGEMENT OF NORTH WEST
KARNATAKA ROAD TRANSPORT CORPORATION,
REPRESENTED BY ITS DIVISIONAL CONTROLLER,
HUBLI DIVISION, HUBLI-580 001.
- RESPONDENT
(BY SRI RAVI V. HOSAMANI AND
SHIVAKUMAR S. BADAWADAGI, ADVOCATES)
THIS R.S.A. IS FILED U/S 100 OF CPC AGAINST THE
JUDGMENT & DECREE DATED 03.07.2007 PASSED IN R.A. NO.
32/2003 ON THE FILE OF THE I ADDL. CIVIL JUDGE (SR. DN.), HUBLI,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND
DECREE DATED 18.12.2002 PASSED IN O.S. NO. 676/2001 ON THE
FILE OF THE FIRST ADDL. CIVIL JUDGE (JR. DN.), HUBLI.
THESE APPEALS COMING ON FOR FINAL HEARING ON THIS DAY,
COURT DELIVERED THE FOLLOWING:-
JUDGMENT
1. RSA 5051/2008 is an appeal filed by the defendants of O.S. No.342/1997 which was pending on the file of the Court of Prl. Civil Judge (Sr. Dn.) Gadag. Respondent herein is the plaintiff in the said suit. Parties will be referred to as per their ranking in the trial Court. Defendant is aggrieved by the concurrent finding in O.S. No.342/97 and affirmation thereof in the R.A. No.98/02, which was pending on the file of Court of Addl. Civil Judge (Sr. Dn.), Gadag.
2. Plaintiff-Andappa was a Conductor under defendant-KSRTC. Some irregularities were alleged against him in regard to the excess 4 cash found with him at the time of surprise check made by the Officers attached to the squad. In this regard Articles of Charge came to be issued to the plaintiff, bearing no. KST/GDG/DFL/186(95)/205 dated 16.02.1995. According to the defendant it was a misconduct which has to be viewed seriously. Plaintiff chose to submit his reply refuting all the allegations made against him. He had submitted a detailed reply denying all the charges levelled against him. If the management was not satisfied with the reply, the only course left open for the management was to initiate a departmental enquiry and to appoint an Enquiry Officer so as to conduct a detailed enquiry in accordance with law. Being not satisfied with the explanation given by the plaintiff, Management chose to reduce 3 increments without holding an enquiry as contemplated under law.
3. In this regard plaintiff was aggrieved on the ground that principles of natural justice were not at all applied and an order came to be passed behind his back without giving an opportunity of being heard. In this regard he chose to file a suit challenging the order of 5 reducing his pay by 3 increments. The defendant appeared before the Court and filed detailed written statement denying all the averments and had further pleaded that suit was not maintainable more particularly in the light of specific provisions being available under the Industrial Disputes Act. According to the defendant, plaintiff filed an appeal before the Managing Director of KSRTC and during the pendency of the said appeal, plaintiff chose to file a suit and therefore suit was not maintainable and it was impliedly barred u/S 9 of C.P.C. With these pleadings the defendant had requested for dismissal of the suit.
4. On the basis of the above pleadings following issues are framed:
1) Whether the plaintiff proves that, Articles of Chargesissued dated 16.2.1995 is illegal and irregular?
2) Whether the plaintiff proves that, the order of the Divisional Controller at Annexure-C dated 9.8.1995, is illegal and null and void?
3) Whether the defendant proves that, suit of the plaintiff is not maintainable?
4) Whether the plaintiff is entitled for the reliefs sought?
5) What decree or order?
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5. Plaintiff himself has been examined as P.W.1. Sri Muttukrishna, a responsible official of K.S.R.T.C. is examined as D.W.1. Totally 3 exhibits have been got marked on behalf of the plaintiff but no documents have been marked on behalf of the defendant.
6. After perusing the records and hearing arguments, learned Principal Civil Judge (Jr. Dn.), Gadag, before whom the suit had been filed has answered issue nos.1, 2 and 4 in the affirmative and issue no. 3 in the negative. It is held that suit is perfectly maintainable. Accordingly, the order of withholding 3 increments has been set aside. It is this judgment and decree dated 31.10.1998, which was called in question before the Court of Addl. Civil Judge (Sr. Dn.), Gadag by filing an appeal u/S 96 CPC in R.A. No. 98/2002.
7. Several grounds have been urged in the said appeal challenging the judgment and decree passed by the trial Court. After hearing the arguments from the learned counsel appearing for the parties and perusing the records of the trial Court and the grounds urged in the 7 appeal memorandum, learned First Appellate Judge has chosen to dismiss the appeal by formulating following two points for consideration as found in page no. 6 of the impugned judgment of the trial Court.
1) Whether the appellant proves that the judgment and decree passed by the trial Court is perverse and arbitrary and this Court interference is necessary?
2) What order or relief?
8. The judgment and decree of the first appellate Court is dated 30.01.2008. The concurrent findings of these two Courts are called in question by filing appeal u/S 100 CPC.
9. In respect of identical matter a separate appeal is filed in R.S.A. No. 2551/2007 and the same is also clubbed with this appeal. The connected appeal 2551/2007 has arisen out of the judgment and decree passed in O.S. No. 676/2001 which was pending on the file of the Court of First Additional Civil Judge (Jr. Dn.), Hubli. The plaintiff-Rajendra of O.S. No. 676/2001 was a Junior Assistant in KSRTC Hubli Division. He had been served with Articles of Charge dated 08.01.1999 on the ground that he had misrepresented the 8 authorities about his caste while getting promotion. According to the defendant, plaintiff-Rajendra had intended to furnish false information in order to get promotion. The plaintiff-Rajendra had furnished his explanation as against the Articles of Charge furnished to him. Being not satisfied with the explanation a Disciplinary Enquiry was held by appointing an Enquiry Officer. In the detailed enquiry Rajendra's conduct was held to be misconduct and his basic pay was reduced to the lowest of the post held by him. Being aggrieved by the said finding given by the Disciplinary Authority he chose to file a suit in O.S. No. 676/2001 mainly on the ground that principles of natural justice had not been followed in the said case and that adequate opportunity had not been given to him of being heard.
10. The said suit was also resisted holding that the suit was not maintainable more particularly when the plaintiff had faced a fullfledged enquiry in accordance with law and that the only remedy left open was to file a dispute before the Labour Court under the 9 provisions of Industrial Disputes Act, 1947. On the basis of the above pleadings following 3 issues had been framed:
1) Whether plaintiff proves that, the order passed by Divisional Controller dated 30.11.2001 is illegal?
2) Whether plaintiff proves that, he is entitled to receive basic salary of Rs.4,590/- as claimed by him?
3) What order or decree?
11. Plaintiff-Rajendra is examined himself as P.W.1. Baburao Hanamantarao Kulkarni, Officer of the defendant has been examined as D.W.2. Totally 3 exhibits have been got marked on behalf of the plaintiff and 6 exhibits have been got marked on behalf of the defendant. Ultimately, the suit came to be decreed as prayed for holding that rejection of the basic salary of the plaintiff was illegal and that the same was done in violation of principles of natural justice. Anyhow permission was granted for the defendant authority to take proper action against the plaintiff by following rules and regulations and also by following principles of natural justice.
12. Defendant-KSRTC chose to file an appeal against Rajendra u/S 96 of CPC before the Court of First Addl. Civil Judge (Sr. Dn.), 10 Hubli. On hearing the arguments, learned Judge of the First Appellate Court has chosen to allow the appeal and thus suit filed in O.S. No. 676/2001 is dismissed. Dismissal of the appeal is mainly on the ground that the Civil Court had no jurisdiction to try the matter as the Labour Court alone has the jurisdiction as per the provisions of Industrial Disputes Act. The divergent judgment of the first appellate Court passed in R.A. No.32/03 is dated 03.07.2007. Being aggrieved by the said divergent judgment passed in R.A. No. 32/03 plaintiff-
Rajendra has filed this appeal in R.S.A. No.2551/2007.
13. RSA No.5397/2010 has arisen out of the judgment passed in O.S. No. 51/1999, which was pending on the file of Court of 4th Addl. Civil Judge (Jr. Dn.), Hubli and the concurrent judgment of the first appellate Court passed in R.A. No.108/2001 by the learned I Addl. Civil Judge (Sr. Dn.), Hubli. Plaintiff-Fransis Christopher was working as a Assistant Artisan in KSRTC Hubli Division. He was served with a charge sheet bearing no. KRS 151/94/601/ 16.12.1994 on the ground that he had misbehaved with the Officers of KSRTC. 11 According to him, the Enquiry Officer, Mutalik, appointed by the Disciplinary Authority, was junior to him. Another ground was that list of imputation was not served on him and thereby principles of natural justice has not been followed.
14. Defendant-KSRTC had raised several objections. The main plea was the suit was not maintainable in the light of clear provisions found under the Industrial Disputes Act and that the plaintiff had faced a regular enquiry before the Enquiry Officer appointed by the Disciplinary Authority. According to the defendant, suit was not maintainable as the same has impliedly barred u/S 9 of CPC.
15. On the basis of the above pleadings following issues have been framed:
1) Whether the plaintiff proves that the order passed by the defendant on 28.12.1998 reducing the salary of the plaintiff at one incremental stage permanently, is illegal, null and void?
2) Whether this Court has jurisdiction to try this suit?
3) Whether the plaintiff is entitled for the relief of declaration and consequential relief?
4) What order or decree?
---
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16. Plaintiff examined himself as P.W.1 and no evidence is adduced on behalf of the defendant. Two exhibits are got marked on behalf of the plaintiff and no documents are marked on behalf of the defendant. Ultimately suit is decreed as prayed for holding that punishment of withdrawal of one increment permanently is illegal and a direction is given to the defendant not to act upon the said report accepted by the Disciplinary authority.
17. Several grounds have been urged in R.S.A. No.2551/2007 stating that the first appellate Court has not properly analyzed the oral and documentary evidence and has wrongly come to the conclusion that the suit was not maintainable without looking to the principles enunciated by the Hon'ble Supreme Court in various decisions cited before it. The judgment of the first appellate Court is stated to be opposed to law, facts and probabilities.
18. Insofar as the appeal memo filed in R.S.A. No.5051/2008 and 5397/2010 are concerned, grounds urged are similar. It is contended that the suits filed before the trial Court were not at all maintainable as 13 there is an implied bar u/S 9 of CPC. It is contended that an employee of KSRTC who participates in a full fledged departmental enquiry, the course left open is only to avail the opportunity of raising a dispute before the Labour Court under the provisions of Industrial Disputes Act as jurisdiction of Civil Court is vested. It is further contended that the trial Court as well as the first appellate Court have not assessed the evidence in right perspective and has adopted wrong approach to the real state of affairs.
19. In R.S.A.No.2551/07 following substantial question of law has been framed by my predecessor on 12.08.2011, making the same applicable in other two R.S.As.
Whether in the facts and circumstances of the case, the Appellate Court was justified in reversing the judgment and decree passed by the trial Court on the ground that the trial Court had no jurisdiction to entertain the suit?
20. Insofar as RSA 5051/2008 and 5397/2010 are concerned, my predecessor in office has passed an order on 17.10.2012 that these two appeals are admitted on the same ground as found in connected R.S.A. No.2551/2007 and has held that the same question of law framed on 14 12.08.2011 in RSA no. 2551/2007 will be applicable to these two appeals. Hence these appeals are taken up together to consider the common substantial question of law.
R.S.A. No.5051/2008:
21. It is better to take up RSA 5051/2008 filed by KSRTC against Andappa Guggari who was the Conductor in KSRTC. The facts would disclose that plaintiff had submitted a detailed explanation as against the Articles of Charge. If the management was not satisfied with the explanation, the only course left open was to initiate a full fledged enquiry by appointing Enquiry Officer to hold full fledged enquiry and to submit a report and thereafter the Disciplinary Authority would be entitled to act and to take appropriate decision as it deems fit. Having not done so the management chose to straight away pass order of reducing 3 increments as contemplated under the Cadre & Disciplinary Regulations of KSRTC which have been framed in accordance with Articles 309 to 311 of the Constitution of India no enquiry was held in this.15
22. During the course of evidence, the official examined on behalf of the KSRTC has unequivocally admitted that an enquiry should have been held and that an adverse order has been passed against the employee without holding due enquiry. Under such circumstances the plaintiff had two options. He could have either moved the Labour Court by invoking provisions of Industrial Disputes Act by raising dispute before the Labour Court or to approach Civil Court seeking remedy on the ground that adverse order has been passed in violation of principles of natural justice. In respect of the alternative remedy available to an employee, under such circumstances, the Hon'ble Supreme Court has explained position in (2009) 4 SCC 299 Rajasthan State Transport Corporation & Another Vs. Bal Mukund Bairwa (2). In the said decision, a Bench consisting of 3 Hon'ble Judges has explained the options available to an employee of a statutory Corporation. It is held that whether a suit is maintainable in Civil Court or a dispute should be adjudicated by Labour Court depending upon nature of the matter and dispute involved. It is made clear that "if dispute arise out of rights and obligations under I.D. 16 Act or sister laws like Industrial Employment (Standing Orders) Act 1946, Civil Courts jurisdiction is specifically barred." It is also made clear that "if a dispute raised by employer or employee pertains to non observance of principles of natural justice or constitutional provisions, civil suit is maintainable." The said decision reported in the above two cases has been relied upon and followed specifically by the Hon'ble Supreme Court in the case of R.S.R.T.C. & Ors. Vs. Deen Dayal Sharma in Civil Appeal No. 3027/2007 dated 05.05.2010. In the above case it is held that if infringing the standing orders or other provisions of I.D. Act are infringed, Civil Courts jurisdiction may held to be barred. But if the suit is based on the violation of the principles of common law or consistent provisions or on other grounds, Civil Courts jurisdiction may not be held to be barred.
23. Taking this into consideration, it is to be held with certainty that the trial Court has come to the conclusion that the suit was maintainable. The said finding is affirmed by the first appellate 17 Court. The factual findings given by the trial Court and the first appellate Court are based on proper appreciation of the evidence more particularly keeping in mind the principles enunciated by the Hon'ble Supreme Court in Balamukund Bairwar's case.
24. The first appellate Court has concurred with the finding of the trial Court by assigning cogent reasons as to why it has concurred with the findings of the trial Court. Therefore, it can be held with certainty that the suit filed by the plaintiff Andappa Guggari was perfectly maintainable and there is no scope for interfering with the concurrent factual findings of both the cases. Hence the common substantial question of law framed in this case is answered in the negative. Accordingly, RSA 5051/2008 arising out of the judgment and decree of O.S. No.342/1997 and affirmed in RA No.98/2002 is dismissed. Taking into consideration the facts and circumstances of the case there is no order as to costs.18
R.S.A. No. 2551/2007:
25. RSA 2551/2007 has arisen out of judgment and decree passed in R.A. No. 676/2001 by the learned First Additional Civil Judge (Sr. Dn.), Hubli. Plaintiff's suit is decreed as prayed for holding that articles of Charge issued against the plaintiff by the respondent is almost a pre-judged one as if he has committed a serious misconduct and that principles of natural justice has been violated while conducting departmental enquiry. The said judgment and decree was challenged by the defendant in an appeal filed u/S 96 of CPC.
Learned Judge of the first appellate Court has come to the conclusion that the trial Court had no jurisdiction since Labour Court is vested with the said jurisdiction. With this observation the said appeal in R.A. No. 676/2001 has been dismissed and thereby judgment of the trial Court has been set aside. The divergent judgment given by the first appellate Court is called in question by the plaintiff in this appeal.
26. The first appellate Court, as could be seen from the judgment passed in O.S. No.32/2003 has not virtually made any discussion 19 about the judgment of the trial Court. Role of the first appellate Court u/S 96 of CPC is to reassess the entire evidence as the first appellate Court is the final Court of facts. In order to non suit the plaintiff at appellate stage that too on the ground that the trial Court had no jurisdiction, the evidence on record in the trial Court should have been reassessed. As could be seen from the plaint averments of O.S. No. 76/2001 plaintiff has restricted his case only to two aspects.
27. First aspect is in regard to the defendant having already made up its mind to impose penalty as though he has committed a misconduct. This is termed as "prejudging". The second aspect is in regard to the violation of certain principles of natural justice while holding a departmental enquiry and the orders of the disciplinary authority. What is argued before this Court by the learned counsel for the appellant is that the Presenting Officer himself has been examined as witness during the course of enquiry before the Enquiry Officer and that is opposed to law and as a result of the same, the Presenting Officer is not subjected to examination and an opportunity has been 20 denied by the Enquiry Officer. Having gone through the records of the trial Court, this Court is of the opinion that the first appellate Court has not at all made any discussion of the evidence placed on record. The judgment of the trial Court is a well reasoned judgment based on factual findings and the evidence has been tested on the touchstone of intrinsic probabilities. In order to reverse the judgment the first appellate Court has to come to close quarters and to assign its own reasons as to how the trial Court has gone wrong. Principles to this effect have been eloquently explained and reiterated by the Hon'ble Supreme Court in Santhosh Hazare Purushotham Tiwari dead by legal representatives as reported in AIR 2001 SC 965. The first appellate Court has virtually abdicated its responsibility in reassessing the evidence placed on record. Maintainability of suit or otherwise can be held only after looking to the facts and if it fits into the question of non maintainability, then only the plaintiff could have been non suited.
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28. A Bench consisting of 3 Hon'ble Judges in Rajasthan State Transport Corporation Vs. Bal Mukund Bairwa (2009) 4 SCC 299 it is specifically held that an employee who is aggrieved by a disciplinary action can raise an industrial dispute as per the provisions of Industrial Disputes Act, 1947 or can avail the opportunity under the common law by filing a civil suit provided the civil rights are infringed or constitutional rights or principles of natural justice have been violated. The said decision has been followed by the Hon'ble Supreme Court in Deen Dayal Sharma's case reported in 2010 SC 2662. What is held in the said decision is that where a dispute arises from general law of contract, i.e., where the reliefs are claimed on the basis of general law of contract, a suit in Civil Court cannot be said to be not maintainable. Even though such a dispute may also constitute an "industrial dispute" within the meaning of Sec. 2(k) or Sec. 2-A of the Industrial Disputes Act, 1947. The suit will be barred only when the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes Act or the 22 sister Acts and the Standing Orders which have a statutory recognition.
29. Suffice to state that, in the present case the plaintiff has restricted his grievance only in regard to the prejudging by the defendant and non-observance of certain important rules of principles of natural justice. The materials placed on record are sufficient to come to the conclusion that the Articles of Charge issued to the plaintiff appear to be couched with such words which clearly make an impression that the defendant has already come to the conclusion that he has committed a misconduct. The violation of principles of natural justice, as asserted by the plaintiff in the present case, has been restricted to the examination of the Presenting Officer as an witness and thereby an opportunity of cross examining him has been denied by the Enquiry Officer. Suffice to state that these are patent violation of common law based on the violation of principles of natural justice.
30. The trial Court has taken all these into consideration and has written not only considered but also well reasoned judgment. The 23 approach of the first appellate Court is perverse and capracious in the light of non considering the material evidence on record. Hence the substantial question of law framed on 21.01.2004 is held in the affirmative holding that the first appellate Court has committed a serious error in dismissing the suit as not maintainable. Accordingly, the appeal has to be allowed. Consequently, the judgment of the trial Court passed in O.S. No. 676/2001 is to be restored. R.S.A. No. 5397/2010:
31. R.S.A. No. 5397/2010 has arisen out of the judgment and decree passed in O.S. No. 51/1999 filed by Mr. Francis Christopher. The respondent-plaintiff Mr. Francis Christopher was working as an Artisan in K.S.R.T.C. The allegations against him was that he misbehaved with his superior officers by using unparliamentary words. In this regard a charge sheet was issued on 16.12.1994 which is marked as Ex.P.1. He had been called upon to submit his explanation. Ex.P.2 is the copy of the order passed by the Disciplinary Authority deducting one increment in his salary vide 24 order dated 28.12.1998. According to the plaintiff, the Articles of Charge is prejudged.
32. Though the plaintiff had been called upon to submit his explanation, the tone and tenor of Ex.P.1, the charge sheet dated 16.12.1994 would indicate that the Management had prejudged his case. In plaint para no.2 it is specifically stated that the charge sheet issued is wholly prejudged and an Officer far junior to him was appointed as Enquiry Officer. He had submitted his explanation and had participated in the enquiry. What is argued by the learned counsel for the appellant is that the suit should have been filed on the ground the charge sheet was prejudged. Having not done so and having participated in the enquiry, plaintiff cannot turn around at a later stage that too after conclusion of the enquiry and challenge the same on the ground of violation of principles of natural justice. Though the plaintiff had not raised any plea of prejudging, he cannot be inhibited from raising the plea in the Court by means of a suit. What is expected of the Court is as to whether the Articles of Charge is prima 25 facie is prejudged. Suffice to state that the words are used in such a way that the Management has come to the conclusion as though the plaintiff has committed misconduct. Therefore, the enquiry and the punishment will be of no consequence, is the argument.
33. This Court is of the opinion that there is lot of force in the arguments canvassed by the learned counsel for the respondent. The trial Court has given factual findings on proper assessment of the evidence. The first appellate Court has reassessed the entire evidence and has assigned its reasons as to how the judgment of the trial Court is acceptable. The order passed by the first appellate Court is a reasoned order by framing two important points for consideration (1)dealing with the jurisdiction of the Civil Court to deal with such matter and (2) perversity alleged in the judgment of the trial Court. In point no. 2 which is at page no. 8 the first appellate Court has specifically held that the imputation of conduct alleged to have been supplied along with the charge sheet, is not part of the material supplied to him. And therefore there is violation of principles of 26 natural justice. The first appellate Court has adopted right approach to the real state of affairs. The factual finding given by the trial Court and concurred by the first appellate Court cannot be gone into by the second appellate Court as the findings are on facts. No perversity or illegality is found in the assessment made by the trial Court and confirmation thereof by the first appellate Court. Accordingly R.S.A. No. 5397/2010 is liable to be dismissed.
R.S.A. No. 5397/2010 and R.S.A. No. 5051/2008 are dismissed confirming the judgment of the trial Court and the first appellate Court.
R.S.A. No. 2551/2007 is allowed. Judgment of the first appellate Court is set aside. Consequently, judgment of the trial Court is restored to its original position.
In view of the facts and circumstances of the case and relationship of the parties, there is no order as to costs. 27
Keep original of this judgment in R.S.A. No. 2551/2007 and copies in the connected R.S.A. No. 5397/2010 and R.S.A. No. 5051/2008.
SD/-
JUDGE bvv