1. This Second Appeal under section 100 of the Code of Civil Procedure, 1908 is at the instance of Director, Gram Vikas & Panchayat Raj Bhavan, Shashikunj, Junagadh and State of Gujarat against the judgment and decree dated 25.09.1992 passed by Joint District judge, Junagarh in Regular Civil Appeal No. 167 of 1989 whereby the appeal of the present appellant was dismissed and the judgment and decree passed by the Trial Court in regular Civil Appeal No. 1016 of 1987 came to be confirmed, wherein the Trial Court has declared the order at Exhibit 29 and 30 terminating the services of respondent as illegal and bad in law and the respondent was held entitled to be in continuous service with all other consequential benefits for the post of class IV servant.
2. It was the case of respondent-plaintiff before the trial Court in the suit that the respondent had been serving as a 'Cook' with appellant No.1 since 10.04.1982, that her husband was also appointed as Chief Cook and both were alloted residential accommodation, that the services of her husband was put to an end by taking compulsory resignation and the respondent- plaintiff was being pressurized to vacate the residential house, however, since the respondent felt it not necessary to vacate the residential house, appellant No.1 without any reason terminated her services. It is the case of the respondent that her appointment was through regular channel and her services were terminated without following due process of law.
3. The suit was resisted by the appellants stating that Civil Court has no jurisdiction to entertain and decide the suit, that the Gujarat Civil Services Tribunal has jurisdiction to try the suit, that the respondent was serving as Assistant Cook purely on temporarily basis on fixed salary of Rs.200 per month and she has not reported for duty from 14.12.1987 and, therefore, her services came to terminated on 15.12.1987,
to the appellant, that on the basis of the complaint of Training Officer the services of the respondent was terminated but the respondent was taken back in service on 1.11.1993 again on fixed salary of Rs. 150 and thereafter from 1.02.1984 the respondent has been serving on fixed salary of Rs. 200 with her husband and that the respondent had taken quarrel with her husband and she was, therefore, transferred to Panchayati Raj Training Centre, there was also no improvement in her conduct and, therefore, the appellants were constrained to terminate the services of the respondent on the basis of the misconduct. The Trial Court has framed following issues at Exhibit 14 and answered each of the issues separately.
“1. Whether the learned Civil Judge erred in declaring the impugned termination order of the plaintiff, exhibit 29 and 30 as illegal and bad in law?
2. Whether the learned judge erred in passing the decree for permanent injunction restraining the defendants from implementing those termination order?
3. Whether the learned Judge erred in declaring that plaintiff was entitled for the benefits of class IV government servant and therefore, she was entitled to the pay scale and other benefits of class IV servants like cooks of state government rest houses?
4. Whether learned judge erred in holding that the Civil Court has jurisdiction to her and decide the present suit?
5. What order and decree?
8. Findings on the above points are as under.
1. In the negative.
2. In the negative.
3. In the negative.
4. In the negative.
5. As per order below.”
4. Learned trial Judge on the basis of the evidence available on the record reached to the finding that there was no departmental inquiry initiated against the respondent, though the services of the respondent were terminated on alleged misconduct of taking quarrels with her husband. The learned trial Judge also found that there was gross violation of principles of natural justice especially, when the respondent was in government service and thus the order of termination could not stand scrutiny of law. Accordingly, learned trial Judge allowed the suit of the respondent and declared the order of termination illegal and bad in law as stated above. The appellants carried the judgment and decree passed by the trial Court in Appeal before learned Joint District Judge, Junagadh. It was contended before learned Appellate Judge that Civil Court had no jurisdiction to entertain the passed decree as the respondent had challenged the order of terminating her services. It was also contended that the respondent was purely on ad-hoc basis and no procedure was required to be followed before putting to an end of services of the respondent. Learned Appellate Judge, however, recorded the finding to the effect that the respondent was not serving on ad-hoc basis but she was employed after due selection process and by calling names from Employment Exchange and, therefore, services of such employee could not be put to an end without following due procedure as required to be followed on the charge of alleged misconduct. On the issue of jurisdiction, the learned Appellate Judge has come to the conclusion that the Civil Court had jurisdiction to entertain and hear the suit as the act of the appellants was in clear violation of the principles of natural justice and contrary to the rules of the government for terminating the services of the temporary employees on the ground of alleged misconduct. Learned Appellate Judge has also recorded that it is not the case where the respondent was required to approach the Industrial Tribunal and, therefore, the Civil Court would not have any jurisdiction but it was a case of a termination of services of the government employee and the violation of basic principles of natural justice. Learned appellate Judge, accordingly, concurred with the view taken by the learned trial Judge on both the above stated issues.
5. This Second Appeal was admitted on following substantial questions of law as framed by the appellants in the Appeal.
“1. Whether the Civil court has jurisdiction to try the suit and grant a decree of declaration and injunction when the plaintiff was appointed as an Assistant Cook on Ad-hoc basis on a fixed salary?
2. Whether for want of statutory notice under Section 80 of the C.P.C, the plaintiff's suit be non suited?”
6. I have heard learned advocates for the parties. Learned AGP Mr. Dave appearing for the appellant has submitted that both the Courts below have committed serious error in recording the finding to the effect that the Civil Court had jurisdiction to entertain the suit filed by the respondent. He would submit that what was challenged in the suit was termination order of respondent, who was employed purely on ad-hoc basis and in view of the fact situation available on record, it was not open for Civil Court to entertain such a suit where the respondent had no right to continues in service. He would further submit that in view of the availability of the remedy to the respondent before the Gujarat Civil Services Tribunal, the remedy of the respondent before Civil Court was totally barred and, therefore, both the Courts below have committed an error, not only entertaining the suit and also granting the relief as prayed for in the suit. He, therefore, submitted that the judgment and decree passed by both the Courts below are without jurisdiction and the same are therefore required to be set aside by exercising its powers under Section 100 of the code of Civil Procedure because this question raised by the appellants in the Appeal is the question of jurisdiction which is substantial question of law.
7. Learned AGP submitted that there was no prior notice under Section 80 of the code of Civil Procedure before filing the suit. He also submitted that both the appellants are State Authorities and while filing the suit against the State authorities, notice under Section 80 of the code of Civil Procedure was mandatory. He submitted that in absence of such notice, the decree passed by the Civil Court and confirmed by the Appellate Court cannot stand scrutiny of law.
8. In reply to the above stated submissions canvassed by learned AGP , learned advocate Ms.
Shejal K. Mandavia for the respondent has submitted that the issue about the jurisdiction of the Civil Court in service matter is no longer res integra. She has cited the judgment of the Hon'ble Supreme Court in the case of Rajasthan State Road Transport Corporation and Anr. Vs. Bal Mukund Bairwa reported in (2009) 4 SCC 299 and pointed out that in the said judgment, after considering the earlier judgment on the issue of jurisdiction of Civil Court, Hon'ble Supreme Court has finally held that when it was not possible for a employee to avail remedy under the I.D. Act, the jurisdiction of the Civil Court is not barred. She further submitted that in the case on hand the respondent had made grievance against illegal termination of her services. She submitted that appellate Court has already found that the appointment of the respondent was through a regular mode and it was not purely ad- hoc appointment. She further submitted that when the appellant desired to put an end of services of the respondent on alleged misconduct, it was necessary for the appellants to follow due procedure of law. Since there was gross violation of principles of natural justice, it was always open to the respondent to challenge the illegal order passed by the appellants by filing a Civil Suit. She, therefore, submitted that the Civil Court having jurisdiction as laid down by Hon'ble Supreme Court, the contention of learned AGP that Civil Court has no jurisdiction is not required to be accepted. As regards the second contention of learned AGP about service of notice under Section 80 of the Code of Civil Procedure before filing the suit, learned advocate Ms. Mandavia for the respondent has pointed out that since no such contention was taken before the Courts below and it is not permissible to the appellants to raise such contention before this Court.
9. Having heard learned advocates for the parties and having perused the record of the case the following few aspects need to be considered.
1. The Court below have found that the respondent was appointed through regular channel on the post of Cook and she served from 1982 to 1987 till her services came to be terminated.
2. The Court below have also found, as matter of fact on the basis of evidence that the services of respondent were terminated on alleged misconduct without following any departmental procedure or inquiry.
3. Both the Courts below have examined and found that the Civil Court had jurisdiction to entertain the suit when the complaint was to the effect that the action of the terminating the services of respondent was totally illegal and in gross violation of principles of natural justice.
10. As regards the first substantial question of law, the issue of jurisdiction of Civil Court in service matter is no longer res integra. In the case of Rajasthan State Road Transport Corporation (Supra) Hon'ble Supreme Court has held as under:
“A dispute arising in between and employer and employee may or may not be an industrial dispute. The dispute may be in relation to or arising out of a fundamental right of the employee, or his right under a Parliamentary Act and the regulations framed thereunder, and/or a right arising under the provisions of the Industrial Disputes Act or the sister laws and may relate to same or similar rights or different rights, or even may be based on common law right or contractual right. The question in regard to the jurisdiction of the civil court must, therefore, be addressed having regard to the fact as to which rights or obligations are sought to be enforced for the purpose of invoking or excluding the jurisdiction of a civil court.
In a case where no inquiry has been conducted, there would be a violation of the statutory regulation as also the right of equality as contained in Article 14 of the Constitution of India. In such situation, a civil suit will be maintainable for the purpose of declaration that the termination of service was illegal and the consequences flowing therefrom. However, we may hasten to add that if a suit is filed alleging violation of a right by a workman and a corresponding obligation on the part of the employer under the Industrial Disputes Act or the Certified Standing Orders, a civil suit may not lie. However, if no procedure has been followed as laid down by the statutory regulation or is otherwise imperative even under the common law or the principles of natural justice, which right having arisen under the existing law, sub-para(2) of para 23 of the law laid down in Premier Automobiles Ltd. Shall prevail.”
11. In view of the above laid principles of law by the Hon'ble Supreme Court, in the facts of the case when it is found by both the Courts below that the action of the appellants of termination of the services of the respondent was illegal and without following any due procedure of law, Civil Court had jurisdiction and both the Courts below on this issue cannot be said to have committed any error of law.
12. As regards second contention about the notice under Section 80 of Civil Procedure Code, i accept the contention raised by learned advocate Ms. Mandavia for the respondent that since no such issue or contention was raised in this regard before the Court below, and this being question of fact, it is not permissible for the learned AGP to raise such contention for the first time before this Court in second Appeal. I am of the view that since no such contention was raised before the Court below on non service of the notice before filing the suit, in the facts and circumstances of the case, it would not vitiate the judgment and decree passed by the learned Trial Judge on such ground. Under the circumstances, this appeal is required to be dismissed and the same is dismissed.
13. It is found from the record of the case that on 02.05.1997 this Court passed following interim order.
“1. By filing this applicant, the applicants have claimed following relief in paragraph 13 of the application.
“13. The applicants, therefore, pray that this Hon'ble Court be pleased
(A) to restore the interim relief which was granted by this Hon'ble Court in Civil Application No. 2390/1992 and be pleased to stay the further proceedings of the execution application No.1/1997, pending before the Civil Judge(S.D.), Junagadh.
(B) to allow the Applicants to produce the additional evidence as per Annexure-I to this application:
(C) to pass such other and further order or orders deemed fit and proper in the facts and circumstances of the case.”
It may be mentioned that the opponent had challenged the order by which her services were terminated by filing suit in the court of learned Civil Judge (S.D.),Junagadh. The suit was decreed by the trial court. Thereupon, the applicants had preferred appeal before the District Court which also failed. The applicants have therefore, filed Second Appeal which is already admitted.
2. Earlier Civil Application No.2390/92 was filed by the applicants wherein following order came to be passed on June 14, 1993, by the court (Coram: A.N. Divecha,J.).
“The ad-interim relief is restricted only with respect to payment of back wages form the date of termination of services till her re-instatement on condition that the respondent is re-instated in service with effect from 1st July, 1993, and is paid wages as payable to a Class IV employees from the date of her re-instatement in services. Rule is according made absolute,however, with no order as to costs on the facts and in the circumstances of the case. The hearing of Second Appeal is expedited.”
3. On January 27, 1995, the Director, Gram Vikas and Panchayati Raj Bhavan had filed Civil Application No. 826 of 1995 praying the court to set aside interim relief granted in favour of the respondent vide order dated June 14, 1993.
4. The Court (Coram : N.J. Pandya, J.) had passed the following order on september 13, 1995.
“Learned A.G.P. Mr. Bhatt on instruction informs the court that opponent- original plaintiff on attaining age of superannuation on 31-7-1995, has alrady been retired and as such there is no question of operation of any interim relief. Obviously, therefore, interim relief granted earlier in C.A.No.2390/92 in S.A.No.202/92 will have to be vacated.
Accordingly, this application is allowed. Interim relief granted in C.A.No.2390/92 on 14.6.1993 is hereby vacated.
Rule is made absolute.”
5. In view of the order dated September 13, 1995, the opponent has filed execution Application No. 1/97 in the court of learned Civil Judge (S.O.), Junagadh, which is pending for consideration. On the facts and in the circumstances of the case, I am of the view that interest of justice would be served if the stay of Execution Application is granted on certain conditions.
6. For the foregoing reasons, the application partly succeeded. The stay of Execution Application No. 1/97 filed by the opponent in the court of learned Civil Judge (S.D.), Junagadh, is granted on condition that the applicants deposit the amount due in the executing court on or before June 6, 1997. On deposit of the amount as indicated hereinabove, the opponent would be entitled to withdraw 50 % of the amount after furnishing surety to the satisfaction of the trial court and rest of the 50% amount is directed to be deposited in any nationalized bank initially for a period of 3 years. So far as prayer made by the applicants to allow them to produce additional evidence as per Annexure 1 to this application is concerned, it is ordered that the said prayer shall be considered by the court at the time of hearing of Second Appeal.
7. For the foregoing reasons, rule is made absolute tot the extent indicated hereinabove with no order as to cost.”
14. As per the final direction of the said order, the entire amount of back-wages which was due and payable to respondent was ordered to be deposited before the executing Court. Respondent was permitted to withdraw 50 per cent of the said amount and remaining 50 per cent of the amount was directed to be deposited in fixed deposit with nationalized Bank, initially, for a period of three (3) years. Now since, this appeal is being finally disposed of, if the remaining amount is still lying with the nationalized Bank, the same is ordered to be given to the respondent herein.
15. With this direction the Appeal is finally disposed of.
Braj [C.L. Soni, J.]