1. The present Second Appeal u/s.100 of the Code of Civil Procedure has been preferred by the appellants herein – original defendant Nos.1 to 3 to quash and set aside the impugned judgement and decree dated 18/08/2003 passed by learned Civil Judge (S.D.), Gondal in Regular Civil Suit No.120 of 1998, by which, learned Trial Court has decreed the suit preferred by the respondent herein – original plaintiff and has quashed and set aside the termination order dated 30/11/1988 passed by appellant No.3 herein – original defendant No.3 terminating services of the original plaintiff and further directed the appellants herein – original defendants to reinstate the original plaintiff in services on his original post of Armed Police Constable with all consequential benefits i.e. backwages, seniority, etc. as well as to quash and set aside the impugned judgement and order dated 29/10/2004 passed by learned Extra Assistant Judge, Gondal in Regular Civil Appeal No.20 of 2003, by which, learned Appellate Court has dismissed the said appeal preferred by the appellants herein – original defendants and has confirmed the judgement and decree passed by learned Trial Court decreeing the suit.
2. That the respondent herein - original plaintiff was appointed as Armed Police Constable on temporary basis on 14/09/1987. It appears that his services were required by the State as he was required to serve at Punjab for maintenance of the law against terrorism and he was required to leave for Punjab on 19/06/1988 and because of that, he proceeded on leave w.e.f. 18/06/1988 without getting the leave sanctioned and remained on leave for 11 days. It appears that his unauthorised absent from 18/06/1988 to 28/06/1988 came to be sanctioned as leave without pay vide order dated 13/07/1988. However, it is required to be noted that his leave was got sanctioned as special case for 20 days and he was required to resume his duty on 13/08/1988 at Ludhiyana, Punjab but still he neither resumed his duty nor submitted application for extension of leave and remained absent unauthorizedly and without getting his leave sanctioned.
Therefore, it was found that his services are not required as he would not be good police officer and as he was appointed on temporary basis, his services came to be terminated vide order dated 30/11/1988. Considering Rule 33 of the Bombay Civil Services Rules, by giving one month notice pay.
Being aggrieved by and dissatisfied with the aforesaid order of termination dated 30/11/1988, the respondent herein – original plaintiff instituted Regular Civil Suit No.120 of 1998 in the Court of learned Civil Judge (S.D.), Gondal and by judgement and order dated 18/08/2003, learned Trial Court decreed the suit and granted declaration that the order of termination dated 30/11/1988 is in breach of principles of natural justice as before terminating his services, no departmental inquiry was initiated and consequently learned Trial Court quashed and set aside the termination order dated 30/11/1988 and directed the original defendants to reinstate the original plaintiff in services on his original post with all consequential benefits i.e. backwages, seniority, etc.
Being aggrieved by and dissatisfied with the judgement and decree dated 18/08/2003 passed by learned Civil Judge (S.D.), Gondal in Regular Civil Suit No.120 of 1998, the petitioners herein – original defendants preferred Regular Civil Appeal No.20 of 2003 before learned Extra Assistant Judge, Rajkot at Gondal and learned Appellate Court by impugned judgement and order dated 29/10/2004 dismissed the said appeal confirming the judgement and decree passed by learned Trial Court. Being aggrieved by and dissatisfied with the judgement and orders passed by both the Courts below, the appellants herein – original defendants have preferred the present second appeal u/s.100 of the CPC.
3. Mr.Kabir Hathi, learned Assistant Government Pleader appearing on behalf of the appellants herein – original defendants has vehemently submitted that both the Courts below have materially erred in holding that order of termination dated 30/11/1988 is in breach of principles of natural justice. It is submitted that both the Courts below have materially erred in holding that before terminating the services of the plaintiff, departmental inquiry is required to be held and before passing termination order dated 30/11/1988, no departmental inquiry was held. It is further submitted by Mr.Kabir Hathi, learned Assistant Government Pleader appearing on behalf of the appellants herein that as original plaintiff was appointed as temporary Armed Police Constable and he was in services on temporary basis and considering Rule 33 of the Bombay Civil Services Rules, services of the original plaintiff was terminated on giving one month notice plus notice pay, which was in fact given and, therefore, both the Courts below have materially erred in decreeing the suit and directing the original defendants to reinstate the original plaintiff in service on the post of Armed Police Constable with full backwages, seniority, etc.
It is further submitted by Mr.Kabir Hathi, learned Assistant Government Pleader appearing on behalf of the appellants herein that even on facts also, both the Courts below ought not to have passed the order of reinstatement. It is submitted that services of the original plaintiff was required by the State as he was required to go to Punjab for maintenance of peace and law against terrorism and at the crucial time, the original plaintiff remained unauthorised absent and without getting leave sanctioned and did not report for the duty at Punjab, Ludhiyana. Considering the fact that he was temporary employee, both the Courts below have materially erred in passing the order of reinstatement with full backwages and seniority. Therefore, it is submitted that both the Courts below have exceeded their jurisdiction by passing the order of reinstatement.
By making above submissions, it is requested to allow the present second appeal.
4. The present appeal is opposed by Mr.N.D.Buch, learned advocate appearing on behalf of the original plaintiff. It is submitted that as such there are concurrent finding of facts given by both the Courts below in quashing and setting aside the order of termination/ dismissal passed by learned Appellate Court and the same are not required to be set aside in exercise of power under section 100 of the Code of Civil Procedure. It is further submitted by Mr.Buch, learned advocate appearing on behalf of the original plaintiff that before terminating the services of the plaintiff on the ground of unauthoseized absence and order of termination was punitive in nature and before terminating his services, no departmental inquiry was initiated, both the Courts below have not committed any error in quashing and setting aside the order of termination on the ground that the same is in breach of principles of natural justice and consequently directing the appellants herein to reinstate the plaintiff on his original post with full backwages and granting seniority.
5. Mr.Buch, learned advocate appearing on behalf of the original plaintiff has relied upon following decisions of Hon'ble Supreme Court as well as this Court in support of his prayer to dismiss the present second appeal :
(i) 2003(1) GLH 75
(ii) 2004(2) GLH 437
(iii) 2010(2) GLH 540
(iv) 2000(9) SCC 473
(v) 2009(2) GLH 348
(vi) 1994(1) GLR 93 By making above submissions and relying upon above decisions, it is requested to dismiss the present second appeal.
6. Heard learned advocates appearing on behalf of the respective parties at length.
At the outset, it is required to be noted and it is an admitted position that at the relevant time, original plaintiff was temporary employee appointed as Armed Police Constable. It appears that he was appointed as temporary Armed Police Constable on 14/09/1987 and his services were required by the State as he was required to serve at Punjab for maintenance of law against terrorism. However instead of proceeded to Punjab, original plaintiff proceeded on leave w.e.f. 18/06/1988 without getting leave sanctioned and remained on leave for 11 days. His unauthorized absent from 18/06/1988 to 28/06/1988 came to be sanctioned as leave without pay vide order dated 13/07/1988. However, his leave was got sanctioned as special leave and he was required to resume his duty on 13/08/1988 at Ludhiyana, Punjab still the plaintiff did not resume duty on 13/08/1988 and did not report for duty at Ludhiyana at Punjab. Neither the plaintiff resumed his duty nor submitted application for extension of leave and remained absent unauthorizedly without getting leave sanctioned. Considering the above and when the plaintiff was temporary employee as Armed Police Constable, his services came to be terminated by giving notice pay as required under section 33 of the Bombay Civil Services Rules. Authority also observed that looking to his above conduct, he would not be a good police office. As in the order of termination, it is observed that the plaintiff would not be a good police officer and by observing so, his services came to be terminated and the order is punitive and, therefore, departmental inquiry is not required to be held and merely while terminating his services as temporary employee, payment of one month notice pay as required under Section 33 of the Bombay Civil Services Rules was given. It was observed that he would not be a good officer by that itself it cannot be said that the order of termination is punitive order. Finding given by both the Courts below that order of termination is punitive cannot be sustained in light of the decision of the Hon'ble Supreme Court in the case of Kazia Mohammed Muzzammil V/s. State of Karnataka and Anr. reported in (2010)8 SCC 155. Under the circumstances, both the Courts below have materially erred in holding that order of termination is punitive and consequently quashing and setting aside the same as before terminating his services no departmental inquiry is required, the same is in breach of principles of natural justice. In view of the above finding of this Court, decisions relied upon by learned advocate appearing on behalf of the original plaintiff referred to hereinabove would not be applicable to the facts of the present case.
7. Even otherwise considering the fact that original plaintiff was serving as temporary Armed Police Constable and when his services were required by the State at Ludhiyana at Punjab for maintenance of law and order against terrorism, the plaintiff deliberately proceeded on unauthorized leave so that he may not have to go to Ludhiyana at Punjab, both the Courts below have materially erred in quashing and setting aside the order of termination and directing the appellants herein to reinstate the original plaintiff at his original post and that too with full backwages and with all consequential benefits. While granting relief and decreeing the suit, learned Trial Court exceeded its jurisdiction in passing the order of reinstatement with full backwages.
8. In view of the above and for the reasons stated hereinabove, the present second appeal succeeds. The impugned judgement and decree dated 18/08/2003 passed by learned Civil Judge (S.D.), Gondal in Regular Civil Suit No.120 of 1998 as well as the impugned judgement and order dated 29/10/2004 passed by learned Extra Assistant Judge, Gondal in Regular Civil Appeal No.20 of 2003 are hereby quashed and set aside. Rule is made absolute to the aforesaid extent. No costs.
[M.R.SHAH,J] *dipti