1. By this Appeal under Section 100 of the Code of Civil Procedure, the appellants- original defendants have challenged the judgment and decree passed by both the Courts below whereby, the suit filed by the respondent challenging order of compulsory retirement dated 30.7.1985 was allowed and the order of compulsory retirement was declared as illegal and ineffective and the appellants were restrained permanently from implementing the said order.
1.1. Parties shall be referred as per their original status in the suit.
2. Plaintiff filed Regular Civil Suit No.218 of 1985, seeking to declare the order of compulsory retirement passed by defendant No.2 as illegal, unconstitutional and ineffective and for permanent injunction restraining the defendants from preventing the plaintiff from performing his service. It is case of the plaintiff that the plaintiff was serving on the post of Armed Constable. During his service, he fell ill and was examined by the Medical Board. He produced medical certificate in the year 1975 but, the defendants did not give receipt of production of such certificate by the plaintiff and as per the said certificate, the plaintiff was advised to perform light duty. Plaintiff was further required to be admitted in the Government hospital and therefore, the plaintiff had to go on leave from October 1983 to January 1984. For such leave taken by the plaintiff, the higher officer started harassing the plaintiff and the plaintiff was transferred from Rajkot to Gondal Chowky. The plaintiff was not paid salary for the period of leave. Financial position of the family of the plaintiff had worsened and for one or other reasons, defendant No.2 and other officers wanted to remove the plaintiff from service. Therefore, with malafide intention, the plaintiff was served with different charge- sheets at different times and thereafter, the plaintiff was served with notice dated 11.7.1985 asking the plaintiff to show cause as to why the plaintiff should not be compulsorily retired. The plaintiff gave reply but, defendant No.2 passed order dated 30.7.1985 compulsorily retiring the plaintiff from service. The plaintiff has assailed this order of compulsory retirement on different grounds stated in the plaint.
3. The suit was resisted by the defendants by filing written statement at Exh.42, stating therein that the plaintiff was examined by the Civil Surgeon during 9.1.1975 to 12.1.1975 and the Civil Surgeon by his certificate dated 15.1.1975 certified that the plaintiff was not suffering from Tuberculosis and was not fit to be invalidated from service. Thus, the plaintiff was totally fit for service and he actually rendered his service actively with rifle from 1.2.1973 to 7.1.1984. It is further stated that the plaintiff had never furnished any medical certificate, certifying that he was advised to do light duty. It is further stated that even at no point of time, during 1973 to 1984, the plaintiff had ever made any representation to give him work of light duty. The plaintiff was always negligent in discharge of his official duty and was in habit of disobeying the orders of superior officers. On 7.10.1983, he had proceeded on leave for one day but did not report on duty till 5.1.1984. His unauthorized absence was viewed leniently and his absence period was regularized. It is further stated that transfer order of the plaintiff was not passed by the defendants but the same was passed by I.G.P., Ahmedabad. The plaintiff refused to perform heavy duty by falsely representing that the Medical Board had opined for giving him light duty in the year 1975. The plaintiff was, therefore, asked to appear before the Medical Board under Rule 666 of the BCSR but he disobeyed the order of superior officer. Therefore, departmental inquiry was initiated against the plaintiff in respect of charges levelled against him and on the basis of the inquiry report, instead of awarding him major punishment of dismissal, punishment of compulsory retirement was imposed upon him as considering indiscipline of the plaintiff, the plaintiff was not found fit to be continued in disciplined force. The plaintiff is, therefore, not entitled to any relief in the suit.
4. Both the parties have chosen not to lead any oral evidence and they relied on documentary evidence. Learned Trial Judge, on appreciation of the documentary evidence, came to the conclusion that since it was case of the plaintiff that he had handed over the certificate of the Medical Board for giving him light duty to the defendants, the plaintiff was justified to refuse to appear before the Medical Board again as per the order of the defendants and such act on the part of the plaintiff could not be termed as indiscipline or in defiance of the order of the superior officer. Learned Trial Judge also came to the conclusion that Rule 666 of the BCSR could be placed in service only in relation to the matters of leave which can be granted to the employee on medical ground. Learned Trial Judge further observed that the defendants have failed to point out any provision from BCSR to show that the employee seeking light duty on the ground of physical incapacity requires to be referred to the Medical Board. Learned Judge thus came to the conclusion that Inquiry Officer as well as defendant No.2 have committed patent illegality in holding that the plaintiff has disobeyed the orders of superior officer by refusing to appear before the Medical Board and therefore, charges against the plaintiff could not be said to have been proved. On the above-said conclusion, learned Trial Judge allowed the suit and declared the order of compulsory retirement as illegal and ineffective and granted permanent injunction restraining the defendants from implementing the order of compulsory retirement.
5. The defendants, therefore, filed Regular Civil Appeal No.1 of 1994. Learned Appellate Judge almost on the same reasoning concurred with the view taken by learned Trial Judge and dismissed the appeal of the defendants by judgment and decree dated 19.7.1996. It is against this judgment and decree, the State is in appeal before this Court.
6. This appeal was admitted by order dated 27.6.1997 on the following substantial questions of law:-
(1). "Whether the findings that charge No.2 and charge No.3 alleged against the plaintiff delinquent having not been proved has been arrived at by ignoring the material evidence on record and by not applying correct principles of law in the matter of dealing with the challenge to findings recorded by disciplinary authority in departmental enquiry?"
(2). "Whether the courts below have erred in law in deciding issues beyond the true scope of enquiry in a civil suit challenging the departmental enquiry against delinquent officer particularly in view of the fact when the conduct rules provide for remedy against the findings recorded by the disciplinary authority and which has not been pursued?"
(3). "Whether the suit was not maintainable for want of notice under Section 80 of the Civil Procedure Code."
7. I have heard learned advocates for the parties.
8. Learned Assistant Government Pleader Mr. Bhatt submitted that the charges against the respondent were proved in the departmental inquiry and since there is no illegality committed in holding the departmental inquiry, Civil Court had no jurisdiction to interfere with the punishment of compulsory retirement imposed by the defendants. Mr. Bhatt submitted that since the plaintiff based his suit on the ground that he was given certificate by the Medical Board in the year 1975 for performing only light duty, it was for the plaintiff to prove the same, which he miserably failed to prove. Mr. Bhatt submitted that the plaintiff himself performed heavy duty with rifle from 1973 to 1984 and in between this period, he never pointed out or made any representation that he was not capable to perform heavy duty. Mr. Bhatt submitted that the plaintiff was in habit of not performing the duty sincerely in past also and he was awarded punishments thrice in past. Mr. Bhatt submitted that the plaintiff was in disciplined force and every time, lenient view was taken against the plaintiff, still however, the plaintiff had continued with his habit to misbehave with the officers and defy the orders of superior officers. Mr. Bhatt submitted that the plaintiff was asked to appear before the Medical Board as he refused to perform heavy duty on the ground that he was already permitted to perform light duty in 1975. Such refusal on the part of the plaintiff was clear defiance of the order of superior officer especially when the plaintiff was not in a position to establish that he was in fact given permission to perform light duty on the basis of the medical certificate in the year 1975. Mr. Bhatt submitted that Exh.57 is a proof to demonstrate the misbehaviour of the plaintiff when he was asked to appear before the Medical Board to get himself examined. Mr. Bhatt submitted that after giving full opportunities in the departmental inquiry to the plaintiff, the competent authority on the basis of the Inquiry Officer’s report as also after considering the reply given by the plaintiff in response to the show cause notice, came to the conclusion that the plaintiff was not fit person to be continued in disciplined force and on that basis, the order of compulsory retirement was passed against him though looking to his past conduct, he could have been dismissed from service. Mr. Bhatt submitted that the defendants having formed an opinion that the plaintiff was not fit to be continued in disciplined force, could be said to have lost confidence in the plaintiff and therefore, such discretionary order of compulsory retirement passed by the defendants was not required to be interfered with by the Civil Court, especially when there was no infraction of violation of the principles of natural justice alleged or established. Mr. Bhatt submitted that Civil Court is not competent and is not having jurisdiction to sit in appeal over the decision taken by the defendants based on the findings arrived at in lawfully conducted departmental inquiry and therefore, the Civil Court could be said to have overstepped its jurisdiction. This Court, therefore, may allow the appeal and quash and set aside the judgment and decree passed by the Courts below.
9. As against the above-said arguments of learned Assistant Government Pleader Mr. Bhatt, learned advocate Ms. Shanu S. Pathan, appearing for the respondent, submitted that the Courts below have not committed any error in holding that the plaintiff had successfully proved that as per the medical certificate issued to him by the Medical Board in the year 1975, the plaintiff was advised to do only light duty. She submitted that the order of compulsory retirement passed against the plaintiff was vindictive one because superior officers had deliberately kept grudge against the plaintiff on account of the plaintiff proceeded on leave for medical reason. She submitted that though none of the charges against the plaintiff was proved, just to throw the plaintiff out of service, the competent authority recorded that the charges were serious and wrongly believed the charges to be proved and passed order of compulsory retirement, which was, in fact, penal in nature and therefore, the Courts below were justified in interfering with the order of compulsory retirement. Ms. Pathan submitted that though the plaintiff had demanded various documents during the inquiry, the application of the plaintiff was not entertained, which resulted in denial of fair opportunity to the plaintiff to defend his case. Ms. Pathan further submitted that after the plaintiff filed reply to the show cause notice on conclusion of the departmental inquiry, the defendants passed order of compulsory retirement within only 10 days, which shows that there was no application of mind to the reply given by the plaintiff. She submitted that contents of the reply were never considered by the defendants and therefore, the order of compulsory retirement passed against the plaintiff was clearly in violation of the principle of natural justice. Ms. Pathan submitted that the act of the plaintiff refusing to appear before the Medical Board could not be said to be in any manner defying the order of superior officer and therefore, such would never be termed as ‘misconduct’. She submitted that though Rule 666 of the BCSR had no application in the facts of the case, the defendants held the plaintiff guilty for the charge of refusing to appear before the Medical Board relying on such Rule. Ms. Pathan submitted that when the Courts below have held that statement of charges against the plaintiff could in no way be taken as misconduct of the plaintiff, the Civil Court had jurisdiction to hold that the order of compulsory retirement was illegal and by giving such declaration, Civil Court cannot be said to have overstepped its jurisdiction. Ms. Pathan submitted that looking to the nature of charges levelled against the plaintiff, order of compulsory retirement was very harsh one, especially when the plaintiff had voluntarily carried on heavy duty in spite of the fact that he was under Medical Board’s certificate permitting him to carry on light duty. Ms. Pathan submitted that since both the Courts below have recorded findings of fact based on appreciation of evidence available on record that the plaintiff has not committed any misconduct and that the order of compulsory retirement was on consideration of irrelevant material, this Court may not interfere with the judgment and order passed by the Courts below.
9.1. Learned advocate Ms. Pathan submitted that the Civil Court has jurisdiction to examine the legality or otherwise of the order of compulsory retirement when the order of compulsory retirement was challenged on the ground of violation of principles of natural justice. For this purpose, she relied on the decision of this Court in the case of State of Gujarat and Anr. Vs. Jamal Mahammed Ismail Bloch reported in 2011(2) GLR 912.
10. Having heard learned advocates for the parties and having perused the judgment and decree passed by the Courts below with record and proceedings of the case, it appears that the plaintiff has based his suit to challenge the order of compulsory retirement mainly on the ground that the plaintiff was medically examined in the year 1975 by the Medical Board and was advised to discharge light duty and therefore, the plaintiff was not under any obligation to again get himself examined by the Medical Board to prove that the plaintiff was still entitled to perform light duty. At this stage, charges levelled against the plaintiff are required to be referred. Following three charges were levelled against the plaintiff :-
(1) You have discharged your Government service in active company with weapon between 2/1973 to 7.1.1984.
Still you are refusing to perform Government duty with weapon in Headquarter company. By disobeying the order of higher officer, you have shown total negligence towards Government service.
(2) You have in your report dated 17.10.1984 and in your statement dated 16.11.1984 made false and ill-founded representation to your higher officer that you were given permanently light duty by the Medical Board on 20.2.1975 and you have indulged into serious act of misbehaviour with your higher officer.
(3) You were ordered by the Commandant on 15.12.1984 to go to the Medical Board under Rule 666 of the BCSR but in defiance of the order of the Commandant, you refused to go for your physical examination to the Medical Board. Thus, by disobeying the order of your higher officer, you have acted against the discipline not befitting to the police officer.
11. The plaintiff sent his reply dated 20.7.1985 to the above charges, which is found at Exh.82. Thereafter, regular departmental inquiry was held and the department examined its witnesses to prove the charges. On the basis of the evidence in the inquiry, charges against the plaintiff were believed to be proved and thereafter, on consideration of the inquiry report as also the reply of the plaintiff, the competent authority has passed order of punishment of compulsory retirement. Perusing the record of the inquiry, it appears that the plaintiff was given sufficient opportunity to defend himself. In fact, there is no complaint about breach of any principles of natural justice by the plaintiff in respect of conduct of the inquiry. From the averments made in the plaint and from the statement of the plaintiff before the Inquiry Officer, it appears that there was only oral assertion by the plaintiff that in the year 1975, he appeared before the Medical Board and was permitted to discharge light duty. It is his case that at the relevant time, he had already submitted certificate of the Medical Board to the department. On the other hand, it is the case of the department that no such certificate was found with the department. Under such circumstances, what remained was only an oral assertion by the plaintiff that he was medically examined and was permitted to discharge light duty.
12. It is undisputed fact that the plaintiff continued to discharge heavy duty between 1973 to 1984. During this period, at no point of time, the plaintiff ever made any grievance about giving him heavy duty. Under such circumstances, when the plaintiff resumed duty after short span of leave, he could not have refused to continue to perform heavy duty on the ground that in 1975, he was permitted to discharge light duty. If the plaintiff wanted to discharge light duty after having performed heavy duty for number of years, he could not have refused to appear before the Medical Board to get himself physically examined to prove that he was incapable to perform heavy duty. Since the plaintiff had already been discharging heavy duties for number of years and since the plaintiff bluntly refused to discharge heavy duty, the higher officer was justified in asking the plaintiff to get himself examined by the Medical Board to ensure that the plaintiff was in fact not capable to perform heavy duty. However, not only the plaintiff bluntly refused to get himself examined by the Medical Board, but the plaintiff had even guts to continue with his statement in his report dated 17.10.1984 and 16.11.1984 that he was permanently given light duty and in fact, he indulged into an act of misbehaviour with his higher officer. Courts below, however, misdirected themselves by holding that the fact of permitting the plaintiff to perform light duty stood proved by the plaintiff’s statement and averments in the plaint that the plaintiff had submitted Medical Board’s certificate to the department and the department’s say is just that such certificate is not available with the department and therefore, it is to be believed that the plaintiff had submitted the certificate of Medical Board to discharge light duty. In my view, once the plaintiff has come out with case that he was examined by the Medical Board in the year 1975 and was advised to discharge light duty, onus was on the plaintiff to prove the issuance of the certificate as alleged by the plaintiff by the Medical Board permitting him to discharge light duty. Simply because the department’s say was that the certificate was not with the department was not to be taken as proof of issuance of the certificate by the Medical Board to the plaintiff in the year 1975 permitting the plaintiff to perform light duty. Therefore, Courts below have committed serious error in placing reliance on the oral assertion of the plaintiff and in holding that the plaintiff has proved that the plaintiff was permitted to discharge light duty.
13. At this stage, the document on record at Exh.47 is required to be considered. Exh.47 is letter dated 15.1.1975 issued by the Civil Surgeon, Rajkot Government Hospital, addressed to the Commandant at Gondal on the subject of medical examination of the plaintiff. The Civil Surgeon in the said letter has stated that the plaintiff was admitted in the Government hospital at Rajkot as Indoor Patient from 9.1.1975 to 15.1.1975 for medical examination and on medical examination, he was not found to be suffering from Tuberculosis and hence, he was not required to be invalidated. This letter is of the same time for which the plaintiff alleged that he was examined by the Medical Board and was advised for light duties. In fact, this letter of Civil Surgeon runs counter and falsify the oral assertion of the plaintiff. In the context of this letter of Civil Surgeon, if the fact of plaintiff performing heavy duties with rifle between 1973 to 1984 is considered, the plaintiff’s assertion could be branded as mere falsehood and his conduct of refusing to appear before the Medical Board could be rightly taken as defiance of the order of the superior officer. Therefore, in my view, the cumulative effect of the above said proved facts would go to show that the charges levelled against the plaintiff were rightly believed to be proved in the inquiry. After inquiry, the competent authority has also considered the reply of the plaintiff. The competent authority, when on consideration of the charges proved against the plaintiff and his conduct during his service tenure, found that the plaintiff was not the fit person to continue in disciplined force and decided to impose punishment of compulsory retirement, no illegality or fault could be found with such a decision taken by the competent authority. If the competent authority has exercised its discretion on the basis of the available material and imposed punishment of compulsory retirement, the Civil Court would not sit in appeal over such decision of the competent authority unless the plaintiff had made out strong case of violation of the principles of natural justice. It is not found from the evidence on record that the plaintiff had proved that there was any breach of the principles of natural justice while holding inquiry against the plaintiff. In my view, therefore, the Civil Court had no jurisdiction to interfere with the order of punishment of compulsory retirement passed by the competent authority. In view of the above fact situation, the judgment cited by learned advocate for the respondent in the case of Jamal Mahammed Ismail (supra) will have no application.
14. At this stage, observations made by the Hon’ble Supreme Court in the following decisions are required to be referred.
14.1. In the case of Chief General Manager, State Bank of India, Bhubaneshwar and others Vs. Suresh Chandra Behera reported in (1995)3 SCC 608, the Hon’ble Supreme Court has observed in para 5 as under:-
“5. In the case of Baikuntha Nath Das v. Chief District Medical Officer, Baripada (1992) 2 SCC 299 at 315: (1992 AIR SCW 793 at P. 807),this Court has, after examining the relevant authorities described the scope of intervention by the High Court or this Court in respect of orders of compulsory retirement. It has reaffirmed that the Court would not examine the matter as an appellate Court. It would interfere only if it is satisfied that the order is mala fide, or is based on no evidence or is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material, in short, if it is found to be a perverse order. Such is not the case here.”
14.2. In the case of State Bank of Bikaner and Jaipur Vs. Nemi Chand Nalwaya reported in (2011)4 SCC 584, Hon’ble Supreme Court has observed in para 7 and 8 as under:-
“7. It is now well settled that the courts will not act as an appellate court and re-assess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Courts will, however, interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (vide B. C. Chaturvedi v. Union of India, 1995 (6) SCC 749 : (AIR 1996 SC 484 :
1995 AIR SCW 4374); Union of India v. G. Gunayuthan, 1997 (7) SCC 463 : (AIR 1997 SC 3387 :1997 AIR SCW 3464) and Bank of India v. Degala Suryanarayana, 1999 (5) SCC 762 : (AIR 1999 SC 2407 : 1999 Lab IC 2819);
High Court of Judicature at Bombay v. Shashi Kant S Patil, 2001 (1) SCC 416) : (AIR 2000 SC 22 : 1999 Lab IC 3833).
8. When a court is considering whether punishment of 'termination from service' imposed upon a bank employee is shockingly excessive or disproportionate to the gravity of the proved misconduct, the loss of confidence in the employee will be an important and relevant factor. When an unknown person comes to the bank and claims to be the account-holder of a long inoperative account, and a bank employee, who does not know such person, instructs his colleague to transfer the account from "dormant" to "operative" category (contrary to instructions regulating dormant accounts) without any kind of verification, and accepts the money withdrawal form from such person, gets a token and collects the amount on behalf of such person for the purpose of handing it over to such person, he in effect enables such unknown person to withdraw the amount contrary to the banking procedures; and ultimately, if it transpires that the person who claimed to be account- holder was an imposter, the bank cannot be found fault with if it says that it has lost confidence in the employee concerned. A Bank is justified in contending that not only employees who are dishonest, but those who are guilty of gross negligence, are not fit to continue in its service.”
15. In light of the above principles of law settled by the Hon’ble Supreme Court, punishing order of the competent authority cannot be lightly interfered with by the Court unless gross violation of statutory Rules or principles of natural justice is established. The discretion exercised by the competent authority after considering the material on record is not permitted to be interfered with by Civil Court as Civil Court is not competent to sit in appeal over such decision. Civil Court is not to act as an Appellate Court over the decision of punishing authorities and is not permitted to take a different view of the matter than a possible view taken by the competent authority on the basis of the evidence available in the inquiry proceedings.
16. Learned advocate for the respondent, however, by relying on decision in the case of Phool Pata and Another Vs. Vishwanath Singh and Others reported in (2005)6 SCC 40, submitted that the Courts below have recorded finding of fact that the plaintiff has proved that he was permitted to render light duties. This Court while exercising the powers under Section 100 of the Code of Civil Procedure, is precluded from interfering with such finding of fact. However, in the said decision, the Hon’ble Supreme Court has held that Second Appeal is to be heard and decided on the substantial question of law formulated in appeal and if appeal is to be decided on any other question, such question has to be formulated by the Court as substantial question of law. The Hon’ble Supreme Court has held that High Court cannot hear appeal on question not formulated except by providing reasons for hearing appeal on other substantial question of law. This decision has no application to the facts of the present case for two reasons, viz. (1) present appeal is decided by this Court on the basis of the substantial questions of law already formulated when the appeal was admitted and (2) this Court has found that the finding recorded by the Courts below was not in accordance with the evidence available on record and not in consonance with the law of evidence. Because, as discussed above, oral assertion of the plaintiff was taken as proof by the Courts below, whereas in the departmental inquiry, the charges levelled against the plaintiff were proved by the department on the basis of evidence in the inquiry.
17. In view of the above, substantial question of law Nos.(1) and (2) are answered accordingly. Substantial question of law No.(3) about non-service of notice under Section 80 of the Code of Civil Procedure is not required to be dealt with. The appeal is, therefore, required to be allowed.
18. In the result, the appeal is allowed. The judgment and decree passed by the Courts below are quashed and set aside.
omkar Sd/-
(C.L. SONI, J.)