[1.0] Present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) has been preferred by the appellant – original defendant to quash and set aside the impugned judgment and decree dated 30.11.1988 passed by the learned trial Court – learned Civil Judge (Junior Division), Rajula in Regular Civil Suit No.60 of 1985 as well as the impugned judgment and order dated 24.02.2012 passed by the learned Appellate Court – learned 2nd Additional District Judge, Rajula in Regular Civil Appeal No.100 of 2011 (Old Appeal No.3/1989) by which the learned Appellate Court has dismissed the said Appeal preferred by the appellant herein – original defendant by confirming the judgment and decree passed by the learned trial Court decreeing the suit and quashing and setting aside the order of punishment of reversion passed by the Disciplinary Authority. [2.0] That the respondent herein – original plaintiff was serving as a Lineman at SubDivision, Rajula. After the departmental inquiry, the Disciplinary Authority passed an order reverting him from the post of Lineman to Assistant Lineman which came to be challenged by the original plaintiff in the Court of learned Civil Judge (J.D.), Rajula by filing Regular Civil Suit No.60 of 1985. It was the case on behalf of the plaintiff that the finding given by the Disciplinary Authority holding the plaintiff negligent for misconduct and the order passed by the Disciplinary Authority reverting the plaintiff is in breach of principles of natural justice. That the suit was resisted by the defendant by filing the written statement. That the learned trial Court framed issues and on appreciation of evidence the learned trial Court held that the departmental inquiry and the order of reversion was in breach of principles of natural justice and consequently decreeing the suit by quashing and setting aside the order of reversion.
[2.1] Feeling aggrieved and dissatisfied with the judgment and decree dated 30.11.1988 passed by the learned Civil Judge (J.D.), Rajula in Regular Civil Suit No.60 of 1985, the appellant herein – original defendant preferred Regular Civil Appeal No.3/1989 which was subsequently renumbered as Regular Civil Appeal No.100 of 2011 and the learned Appellate Court – learned 2nd Additional District Judge, Rajula by impugned judgment and order dated 24.02.2012 has dismissed the said Appeal confirming the judgment and decree passed by the learned trial Court in Regular Civil Suit No.60 of 1985.
[2.2] Feeling aggrieved and dissatisfied with the judgment and order / decree passed by both the Courts below, the appellant herein – original defendant has preferred the present Second Appeal under Section 100 of the CPC.
[3.0] Shri Dipak Dave, learned advocate appearing on behalf of the appellant has vehemently submitted that the learned trial Court has materially erred in entertaining the suit challenging the order of punishment imposed by the Disciplinary Authority and entering into the question with respect to legality and validity of the inquiry. It is submitted that as such Civil Court has no jurisdiction to entertain the suit challenging the order of reversion passed by the Disciplinary Authority when the plaintiff had a remedy to challenge the same by raising industrial dispute under the provisions of the Industrial Dispute Act, 1947.
[3.1] Shri Dave, learned advocate appearing on behalf of the appellant has further submitted that even otherwise the learned trial Court has materially erred in upsetting the finding given by the Disciplinary Authority and interfering with the order of punishment imposed by the Disciplinary Authority and holding that the proceedings as well as the order of reversion is in breach of principles of natural justice.
Making above submissions, it is requested to admit/allow the present Second Appeal.
[4.0] Heard Shri Dave, learned advocate appearing on behalf of the appellant and considered the impugned judgment and order passed by both the Courts below. At the outset it is required to be noted that there are concurrent findings of fact given by both the Courts below holding the departmental inquiry as well as the order of reversion in breach of principles of natural justice, which are on appreciation of evidence, are not required to be interfered by this Court in exercise of powers under Section 100 of the CPC unless it is found that the finding of fact given by the learned trial Court is perverse and/or contrary to the evidence on record.
[4.1] It is the case on behalf of the plaintiff that the learned trial Court has materially erred in entertaining the suit as Civil Court have no jurisdiction to entertain the suit challenging the legality and validity of the order of reversion passed by the Disciplinary Authority as the plaintiff had a remedy available to raise an industrial dispute under the provisions of the Industrial Disputes Act, 1947. At the outset it is required to be noted that as such no such contention has been raised by the appellant either before the trial Court or before the Appellate Court and even no such issue has been framed by the learned trial Court and the aforesaid contention is raised for the first time before this Court. Shri Dave, learned advocate appearing on behalf of the appellant hs submitted that as it is a pure question of law, the same may be considered. Even a question of law is required to be raised before the trial Court and for that even an issue is required to be raised before the trial Court and the same cannot be permitted to be raised for the first time before the second Appellate Court. Still without entering into the aforesaid controversy, the submission on behalf of the appellant with respect to jurisdiction of the trial Court to entertain the suit challenging the order of reversion is considered. The aforesaid is not res integra in view of the decision of the Hon'ble Supreme Court in the case of Rajasthan State Road Transport Corporation and Ors. vs. Mohar Singh reported in (2008)5 SCC 542. It is required to be noted that considering the averments in the plaint, it appears that the plaintiff challenged the order of reversion from the post of Lineman to the post of Assistant Lineman on the ground that same was in breach of principles of natural justice and on the ground that ample opportunity was not given to him during the departmental inquiry. It was never the case on behalf of the plaintiff that order of reversion is in breach of any of the provisions of the Industrial Disputes Act, 1947 and/or the standing order. Under the circumstances, considering the aforesaid decision of the Hon'ble Supreme Court, it cannot be said that the trial Court had committed any error and/or illegality in entertaining the suit challenging the order of reversion.
[4.2] Considering the aforesaid facts and circumstances and when on appreciation of evidence, both the Courts below have held that the departmental inquiry as well as the order of reversion was in breach of principles of natural justice and consequently when the same came to be set aside, it cannot be said that the learned trial Court committed any error and/or illegality in decreeing the suit which came to be confirmed by the learned Appellate Court. It is also required to be noted at this stage that as such the respondent herein – original plaintiff has already retired on attaining the age of superannuation long back and now the question is only with respect to the difference in salary.
[5.0] Considering the aforesaid facts and circumstances, there is no substance in the present Second Appeal which deserves to be dismissed and is, accordingly, dismissed.
CIVIL APPLICATION No. 8078 of 2012 In view of dismissal of main Second Appeal, Civil Application No.8078 of 2012 also deserves to be dismissed and is, accordingly, dismissed.
Sd/ (M.R. Shah, J.) menon