[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 herein – original defendant No.1 to quash and set aside the impugned judgment and order / decree dated 10.06.1991 passed by the learned Appellate Court – learned 2nd Extra Assistant Judge, Junagadh in Regular Civil Appeal No.115 of 1986 by which the learned Appellate Court has allowed the said appeal preferred by the respondent herein – original plaintiff by quashing and setting aside the judgment and decree dated 30.04.1986 passed by the learned trial Court – learned 2nd Jt. Civil Judge (S.D.), Junagadh in Regular Civil Suit No.599 of 1982 dismissing the suit and consequently decreeing the suit and quashing and setting aside the order of dismissal passed by the Disciplinary Authority directing the appellant herein – original defendant No.1 to reinstate the plaintiff on his original pay with 10% backwages with a liberty in favour of defendant No.1 S.T. Corporation to impose a lesser punishment irrespective of issuing of showcause notice to the plaintiff. [2.0] That the respondent herein – original plaintiff was serving as a conductor with the appellant herein – original defendant No.1 – Gujarat State Road Transport Corporation. That a departmental inquiry was initiated against him for committing misconduct of misappropriation alleging interalia that though the fare was collected from some of the passengers on the root the tickets were not issued. In the departmental inquiry, charge/misconduct of misappropriation came to be proved. Thereafter the plaintiff was served with showcause notice to show cause why his services shall not be terminated/ he shall not be removed. That the plaintiff replied to the said showcause notice and has requested to show leniency and to impose lesser punishment by submitting that there was no any malafide intention in committing the misconduct. That thereafter after considering the seriousness of the charge and the misconduct proved against the plaintiff and considering the fact that even earlier also he was dismissed from service on the very ground/misconduct, however, he was taken back on duty on assurance given by the plaintiff that he will not again commit the similar misconduct. That thereafter the plaintiff preferred First Appeal before the first appellate authority requesting to impose the lesser punishment accepting the finding given by the inquiry officer as well as Disciplinary Authority. That the same came to be turned down and the first appellate authority dismissing the appeal. That thereafter the plaintiff instituted Regular Civil Suit No.599 of 1982 against the appellant herein – original defendant in the Court of learned Civil Judge (S.D.), Junagadh for a declaration and perpetual injunction challenging the order of dismissal passed by the Disciplinary Authority confirmed by the appellate authorities. It was the case on behalf of the plaintiff that the order passed by the Disciplinary Authority is illegal, without jurisdiction and against the principles of natural justice.
[2.1] That the suit was resisted by the defendant by filing the written statement submitting that Civil Court has no jurisdiction to entertain the suit. It was also submitted that as such the plaintiff has admitted and accepted the finding given by the inquiry officer holding that the charge/misconduct of misappropriation has been proved. It was submitted that in the facts and circumstances of the case and when it has been proved that plaintiff has committed misconduct of misappropriation and even earlier also he had committed similar type of misconduct and he was removed / dismissed and again reinstated in service on assurance given by the plaintiff that he will not indulge into any misconduct and despite the aforesaid again he had committed the misconduct of misappropriation, the order passed by the Disciplinary Authority dismissing the plaintiff from service is just and proper. That the learned trial Court framed the issues and both the side led evidence, documentary as well as oral. On appreciation of evidence the learned trial Court held that the order of dismissal passed by the Disciplinary Authority is just and proper and it is not in breach of principles of natural justice and consequently the learned trial Court dismissed the suit.
[2.2] Being aggrieved and dissatisfied with the judgment and decree passed by the learned Jt. Civil Judge (S.D.), Junagadh in Regular Civil Suit No.599 of 1982 in dismissing the same, respondent herein – original plaintiff preferred Regular Civil Appeal No.115 of 1986 and by impugned judgment and order, the learned Appellate Court has allowed the said Appeal by observing that the findings given by the inquiry officer holding that charge leveled against the plaintiff of committing misappropriation has been proved is based on no evidence and the order passed by the Disciplinary Authority is in breach of principles of natural justice and also by observing that the punishment of dismissal imposed by Disciplinary Authority is too harsh and disproportionate to the misconduct proved and consequently the learned Appellate Court allowed the appeal quashing and setting aside the judgment and decree passed by the learned trial Court and consequently decreeing the suit partly by directing the appellant herein – original defendant to reinstate the plaintiff in service, however, with 10% back wages only. Even the learned Appellate Court also reserved the liberty in favour of appellant – original defendant to impose lesser punishment.
[2.3] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Appellate Court – learned 2nd Extra Assistant Judge, Junagadh in Regular Civil Appeal No.115 of 1986, the appellant herein – original defendant has preferred the present Second Appeal under Section 100 of the CPC.
[3.0] Ms. Purvi Vohra, learned advocate for Shri Pranav Desai, learned advocate appearing on behalf of the appellant has submitted that the learned Appellate Court has materially erred in allowing the Appeal quashing and setting aside the judgment and decree passed by the learned trial Court and consequently decreeing the suit by quashing and setting aside the order of dismissal passed by the Disciplinary Authority and directing the appellant herein – original defendant to reinstate the plaintiff in service. It is submitted that on one hand the learned Appellate Court has held that the finding given by the inquiry officer holding the plaintiff guilty for the misconduct of misappropriation is based on no evidence and/or the same is in breach of principles of natural justice and on the other hand learned Appellate Court while passing the judgment and order and in the operative portion of the order has reserved the liberty in favour of the appellant to impose lesser punishment, which are selfcontradictory. It is submitted that as such the original plaintiff admitted the finding given by the inquiry officer and even committing of misconduct, however, he requested to show leniency and to impose lesser punishment. Therefore, it is submitted that the learned Appellate Court has materially erred in holding that the finding given by the inquiry officer is in breach of principles of natural justice. It is submitted that once the plaintiff had admitted the finding given by the inquiry officer, the Appellate Court could not have stated anything contrary to the same.
[3.1] It is further submitted that even otherwise considering the fact that the original plaintiff has committed the misconduct of misappropriation of not issuing the tickets though the fare was collected and considering the fact that earlier also the plaintiff had committed earlier type of misconduct and he was dismissed from service and he was reinstated in service on the request made by him and to show the leniency and thereafter again he has indulged into similar misconduct, it cannot be said that the Disciplinary Authority had acted illegally and/or arbitrarily and/or had passed the order disproportionate to the misconduct proved. Therefore, it is submitted that the learned Appellate Court has materially erred in holding that the order of dismissal passed by the Disciplinary Authority is too harsh and/or disproportionate to the misconduct proved. It is further submitted that even otherwise the Civil Court has no such jurisdiction to consider the proportionality of the punishment imposed by the Disciplinary Authority which are available with the Labour Court and/or Industrial Tribunal under Section 11A of the Industrial Disputes Act.
Making above submissions it is requested to allow the present Second Appeal and to quash and set aside the judgment and order passed by the learned Appellate Court.
[3.2] Though served, nobody appears on behalf of the respondents.
[4.0] Having heard Ms. Purvi Vohra, learned advocate appearing on behalf of the appellant and considering the impugned judgment and order passed by both the Courts below as well as the evidence on record received from Record & Proceedings received from the trial Court, it appears that the judgment and order passed by the learned Appellate Court interfering with the order of punishment imposed cannot be sustained. At the outset it is required to be noted that as such the original plaintiff admitted in second reply to the showcause notice issued by the Disciplinary Authority to show cause why he should not be dismissed from service and even in the appeal memo before the first appellate authority that he has admitted the findings given by the inquiry officer. Therefore, it was not open for the Appellate Court to consider the validity of the finding given by the inquiry officer, which came to be accepted by the original plaintiff. Therefore, the learned Appellate Court has materially erred in holding that the finding given by the inquiry officer is in breach of principles of natural justice and/or based on no evidence.
[4.1] Now, so far as the order passed by the Appellate Court holding that for a small amount misappropriated the punishment of dismissal/removal is too harsh and disproportionate and consequently to set aside the order of dismissal passed by the Disciplinary Authority and to order reinstatement reserving the liberty in favour of the defendant to pass lesser punishment is concerned, it appears to this Court that the learned Appellate Court has exceeded the jurisdiction vested in it. As such civil Court has no jurisdiction to consider the proportionality of the punishment imposed by the Disciplinary Authority, the powers which are available with the Labour Court/Industrial Tribunal under Section 11A of the Industrial Disputes Act, such powers are not vested in the Civil Court.
[4.2] Even otherwise considering the fact that considering the decision Rajasthan State Road Transport Corporation and Ors. vs. Mohar Singh reported in (2008)5 SCC 542 and other catena of decisions and considering the fact that the plaintiff was serving as a conductor who did not issue the tickets though the fare was collected and thereby misappropriated the amount and considering the fact that earlier also he was dismissed from service on the similar ground and he was reinstated in service on the assurance given by the plaintiff that he will not commit such a misconduct and again he has committed the similar misconduct and considering the aforesaid facts and circumstances when the Disciplinary Authority dismissed the plaintiff from service, the same was not required to be interfered by the Appellate Court. Under the circumstances, impugned judgment and order passed by the learned Appellate Court cannot be sustained and the same deserves to be quashed and set aside.
[5.0] In view of the above and for the reasons stated above, present Second Appeal succeeds. Impugned judgment and order / decree dated 10.06.1991 passed by the learned Appellate Court – learned 2nd Extra Assistant Judge, Junagadh in Regular Civil Appeal No.115 of 1986 is hereby quashed and set aside and the judgment and decree dated 30.04.1986 passed by the learned trial Court – learned 2nd Jt. Civil Judge (S.D.), Junagadh in Regular Civil Suit No.599 of 1986 is hereby restored. Present Second Appeal is allowed to the aforesaid extent. No costs.
Sd/ (M.R. Shah, J.) menon