1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellants-original defendants to quash and set aside the impugned judgment and order passed by the learned appellate Court-learned Extra Assistant Judge, Kutch-Bhuj dated 07/11/1987 in Regular Civil Appeal No. 127/1983 by which the learned appellate Court has allowed the said appeal preferred by the respondent-original plaintiff and has quashed and set aside the impugned judgment and decree passed by the learned trial Court dismissing the suit and consequently decreeing the suit and granting declaration in favour of the respondent-original plaintiff that he was entitled to promotion to the post of Senior Clerk with effect from 12/01/1978 by quashing and setting aside the promotions granted to one Shri Jaradi and Shri Bhanushali.
2. The respondent-original plaintiff, who was at the relevant time serving as Junior Clerk with the appellant no. 1-original defendant no. 1, instituted Regular Civil Suit No. 240/1978 against the appellants-original defendants in the Court of learned Civil Judge (Junior Division), Bhuj for declaration that he is entitled to promotion for the post of Senior Clerk with effect from 12/01/1978 and also for consequential benefits and for permanent injunction restraining the appellants-original defendants from granting promotion affecting his right of promotion. It appears that the respondent-original plaintiff heavily relied upon G.S.O. 470 of the appellant-Electricity Board. On interpretation of the same, the learned trial Court dismissed the suit vide judgment and decree dated 26/07/1983. It appears that being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court dated 26/07/1983 in Regular Civil Suit No. 240/1978 in dismissing the suit, the respondent-original plaintiff preferred Regular Civil Appeal No. 127/1983 before the learned District Court, Kutch at Bhuj and the learned appellate Court-learned Extra Assistant Judge, Kutch - Bhuj vide impugned judgment and order dated 07/11/1989 has allowed the said appeal quashing and setting aside the judgment and decree passed by the learned trial Court dismissing the suit and consequently decreeing the suit and granting declaration as prayed for solely and mainly relying upon the judgment and award declared by the Industrial Tribunal dated 04/01/1972, which was neither executed nor produced before the learned trial Court. Not only that but the learned appellate Court also quashed and set aside the promotion orders of one Shri Jaradi and Shri Bhanushali, who were found to be Junior to the respondent-original plaintiff without appreciating and/or considering the fact that those two persons were not even party to the suit and/or even in appeal. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned appellate Court the appellants-original plaintiffs have preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
3. Shri M.D. Pandya, learned advocate appearing on behalf of the appellants-original defendants has vehemently submitted that the impugned judgment and order passed by the learned appellate Court allowing the appeal and quashing and setting aside the judgment and decree passed by the learned trial Court and consequently decreeing the suit solely relying upon the judgment and award passed by the Industrial Tribunal is absolutely illegal. It is submitted that as such the judgment and award passed by the learned Industrial Court, which has been relied upon by the learned appellate Court, was neither exhibited nor even produced before the learned trial Court and, therefore, the learned appellate Court was not justified in relying upon the said judgment and award of the Industrial Tribunal, which otherwise was not applicable to the post in question. It is further submitted that even the learned trial Court was not justified in quashing and setting aside the promotion granted to Shri Jaradi and Shri Bhanushali in their absence. It is submitted that those two employees, whose promotions came to be set aside by the learned appellate Court, were neither party to the suit nor party to the appeal and, therefore, it is requested to allow the present Second Appeal and quash and set aside the impugned judgment and order passed by the learned trial Court.
4. Shri Pandya, learned advocate appearing on behalf of the appellants-original defendants has further pointed out the subsequent developments also. It is submitted that during pendency of the suit itself the respondent-original plaintiff was promoted to the post of Senior Clerk on 01/06/1979 and thereafter further promotions were granted time to time and thereafter he was promoted to the post of Superintendent of Accounts in the year 1992 and thereafter further promotions were given, which was declined and thereafter the respondent-original plaintiff has retired on the post of Superintended of Accounts and has been paid all retirement benefits due and payable to him.
5. The learned advocate appearing on behalf of the respondent-original plaintiff has chosen to remain absent.
6. Considering the fact that the present Second Appeal is of the year 1988 it is heard ex parte.
7. Having head Shri M.D. Pandya, learned advocate appearing on behalf of the appellants-original defendants and considering the impugned judgment and order passed by the learned appellate Court, it appears that the learned appellate Court has solely relied upon the judgment and award passed by the Industrial Tribunal dated 04/01/1972, which was neither exhibited nor even produced before the learned trial Court. It is also required to be noted that it is the case on behalf of the appellants-original defendants that the judgment and award passed by the Industrial Tribunal, which has been relied upon by the learned appellate Court, was not applicable to the post in question. In any case when the judgment and award passed by the Industrial Tribunal was neither exhibited nor even produced before the learned trial Court, the learned appellate Court was not justified in relying upon the same in allowing the appeal. It is also required to be noted that by the impugned judgment and order the learned appellate Court has quashed and set aside the order of promotions with respect to Shri Jardari and Shri Bhanushali, who were neither party to the suit nor even in the appeal. Under the circumstances, in absence of those two persons whose promotion orders have been cancelled, the learned appellate court was not justified in quashing and setting aside the promotion orders. Under the circumstances, the impugned judgment and order passed by the learned appellate Court cannot be sustained. It is required to be noted that during pendency of the suit itself the respondent-original plaintiff was promoted to the post of Senior Account Clerk with effect from 01/06/1979 and thereafter further promotions were granted to the respondent-original plaintiff time to time and as and when due and he was promoted to the post of Superintended Accounts with effect from 30/04/1992 and even thereafter he was granted promotion to higher post, which the respondent-original plaintiff refused and thereafter he has attained the age of superannuation on 31/12/2006 on the post of Superintendent of Account and he has been paid all the retirement benefits.
8. In view of the above and for the reasons stated hereinabove, the present Second Appeal succeeds and the impugned judgment and order passed by the learned Extra Assistant Judge, Khuch-Bhuj dated 07/11/1987 in Regular Civil Appeal No. 127/1983 is hereby quashed and set aside and the judgment and order passed by the learned trial Court in Regular Civil Suit No. 240/1978 dismissing the suit is hereby restored. No cost.
(M.R.
SHAH, J.) siji Top