[1.0] As both these appeals are arising out of the common judgment and order passed by both the Courts below and are between the same parties, both these appeals are heard, decided and disposed of by this common judgment and order. [2.0] Original plaintiff Nanubhai Mohanlal Trivedi instituted Regular Civil Suit No.581 of 1986 against the employer – Rajkot Municipal Corporation in the Court of learned Civil Judge (Senior Division), Rajkot for declaration and permanent injunction declaring that the Municipal Commissioner of Rajkot Municipal Corporation has no jurisdiction to accept the resignation tendered by the plaintiff. It appears that the learned trial Court framed the issues inclusive of the issue with respect to jurisdiction of the Civil Court (issue No.6) and though it is held to be in affirmative while partly decreeing the suit, it appears from judgment and decree passed by the learned trial Court that there is no discussion at all by the learned trial Court with respect to the issue of jurisdiction of the Civil Court. Without deciding the said issue with respect to jurisdiction of Civil Court, the learned 4th Joint Civil Judge (Senior Division), Rajkot by judgment and decree dated 19.01.2000 decreed the said suit and allowed the same declaring that the plaintiff continues to be in active service as Deputy Engineer of Rajkot Municipal Corporation with all consequential and incidental benefits and the acceptance of the resignation by the Rajkot Municipal Corporation is null and void. The learned trial Court also directed the defendant to reinstate the plaintiff in service from 05.07.1986 and so far as the back wages is concerned, the learned trial Court awarded 50% back wages for the period from the date of acceptance of resignation till his reinstatement excluding the period for which he had procured his alternative job in other employment.
[2.1] Feeling aggrieved and dissatisfied with the judgment and decree dated 19.01.2000 passed by the learned 4th Joint Civil Judge (Senior Division), Rajkot in Regular Civil Suit No.581 of 1986, the original defendant – Rajkot Municipal Corporation preferred Regular Civil Appeal No.16 of 2000 before the District Court, Rajkot and the learned Principal District Judge, Rajkot by impugned judgment and order dated 28.07.2004 has partly allowed the said Appeal modifying the judgment and decree passed by the learned trial Court and quashed and set aside the judgment and decree passed by the learned trial Court so far as awarding back wages to the plaintiff is concerned, however, confirmed the judgment and decree passed by the learned trial Court so far as reinstatement is concerned.
[2.2] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Principal District Judge, Rajkot dated 28.07.2004 passed in Regular Civil Appeal No.16 of 2000, the original defendant – Rajkot Municipal Corporation has preferred Second Appeal No.82 of 2004 and the original plaintiff has preferred Second Appeal No.50 of 2006 (challenging the impugned judgment and order passed by the learned Appellate Court modifying the judgment and decree passed by the learned trial Court with respect to back wages.
[3.0] Shri C.G. Govindan, learned advocate for Shri A.K. Clerk, learned advocate appearing on behalf of the appellant – original defendant – Rajkot Municipal Corporation has vehemently submitted that despite the issue framed by the learned trial Court with respect to the jurisdiction of the Civil Court (issue No.6), the learned trial Court has not discussed anything on the aspect of jurisdiction of the Civil Court and straightway has answered issue No.6 in affirmative. It is submitted that the question with respect to the jurisdiction of the Civil Court goes to the root of the matter which was required to be considered by the learned trial Court. It is submitted that even the learned Appellate Court has also not considered the same. Therefore, it is requested to remand the matter to the learned trial Court to decide and dispose of the suit on merits by deciding the issue with respect to the jurisdiction.
[3.1] Shri Mukesh Rathod, learned advocate appearing on behalf of the original plaintiff is not in a position to point out anything from the judgment and decree passed by the learned trial Court that learned trial Court has discussed anything with respect to jurisdiction of the Civil Court. He is also not in a position to dispute that without any further discussion by the learned trial Court on the issue with respect to the jurisdiction of the Civil Court, the learned trial Court has answered issue No.6 in affirmative. He is also not in a position to point out from the judgment and order passed by the learned Appellate Court that even the learned Appellate Court has considered and/or dealt with the issue with respect to the jurisdiction.
[4.0] In view of the aforesaid facts and circumstances, the impugned judgment and order passed by both the Courts below deserve to be quashed and set aside and the matter is to be remanded to the learned trial Court to decide and dispose of the said suit afresh in accordance with law and on merits and inclusive of the issue with respect to jurisdiction of the Civil Court.
[4.1] In view of the above and for the reasons stated above, present Second Appeal No.82 of 2004 preferred by the original defendant – Rajkot Municipal Corporation is hereby allowed and the judgment and decree dated 19.01.2000 passed by the learned 4th Joint Civil Judge (Senior Division), Rajkot in Regular Civil Suit No.581 of 1986 as well as the judgment and order dated 28.07.2004 passed by the learned District Judge, Rajkot in Regular Civil Appeal No.16 of 2000 are quashed and set aside and the matter is remanded to the learned trial Court to decide and dispose of the said suit afresh in accordance with law and on merits and inclusive of the issue with respect to jurisdiction of the Civil Court. The aforesaid exercise shall be completed within a period of six months from the date of receipt of the present order. In view of allowing Second Appeal No.82 of 2004 and quashing and setting aside the judgment and order passed by both the Courts below, no order is required to be passed in Second Appeal No.50 of 2006 except disposing of the same, which is accordingly disposed of. No costs.
(M.R. Shah, J.) menon