RSRTC and Others vs Mahavir Prasad Sharma

Nisha Gupta, J.—This second appeal under Section 100 CPC has been filed against the judgment and decree dated 23.2.2000 passed by Additional District Judge No. 8, Jaipur City, Jaipur in Civil Regular Appeal No. 225/96 confirming the judgment and decree dated 28.11.91 passed by Additional Munsiff and Judicial Magistrate No. 3, Jaipur City, Jaipur in Civil Suit No. 630/89 whereby suit for declaration was decreed by concurrent findings of both the courts below.

The respondent plaintiff had preferred a suit for declaration of his termination from service as invalid which was decreed by the court below and appeal has also been dismissed, hence this appeal.

The main issue was issue No. 1 on which both the courts below have found that termination order was illegal as principles of natural justice has not been complied with. Here in the present appeal, the issue has been raised as regards to limitation and jurisdiction. The contention of the appellants is that admittedly, the dismissal order was of 23.6.1983 and suit has been filed after much delay and suit is mainly based on non compliance of standing orders, hence jurisdiction of civil court is barred.

Per contra, the contention of the respondent is that looking to the concurrent findings of fact recorded by both the courts below, no substantial question of law has been raised by the appellants and the appeal is not maintainable.

Heard the learned counsel for the parties and perused the impugned judgments.

Both the courts below have concurrently held that dismissal order of the respondent plaintiff is void and illegal as principles of natural justice has not been followed.

The contention as regards the limitation is not tenable as plaintiff has pleaded that he has been removed from service vide order dated 23.6.83 against which he filed appeal which was decided on 5.2.85, thereafter, he preferred a review petition which was dismissed on 7.11.86 and within limitation, he has preferred the suit. Present appellants have not placed any appeal or review order or even affidavit to controvert the averment in spite of specific orders of the courts to produce the same and both courts below have held that the suit is within limitation, hence issue involved is question of fact and there is concurrent findings of fact by both the courts below.

Reliance has been placed by the respondent on Mali Ram Banjara v. RSRTC & ors., SB Civil Second Appeal No. 204/1999 decided on 19.3.2013 where relying on Ram Ratan Sharma v. RSRTC & ors., SB Civil Second Appeal No. 245/96 decided on 1.3.1997 and Khadarmal v. RSRTC & ors., decided on 24.9.2002, S.B. Civil Second Appeal No. 286/97 it has been held:--

"What would be the starting point of limitation for filing the suit in the case, was the question that was decided by this Court in the case of Ram Ratan Sharma, supra. This court in aforesaid judgment rejected the argument that review petition is not maintainable. It was held that Chairman of the respondent Corporation was competent to entertain the review petition in view of clause (b) of the circular dated 2.8.1978. It was argued that the provisions of order 35(e)(vii) of the Standing Orders are not applicable to the present case as they were framed under the Industrial Disputes Act. Limitation of three years for filing a suit will start from the date when the review petition was dismissed by the respondent No. 4. In Khadarmal v. RSRTC & ors., supra also it was held by this Court that the limitation for filing the suit will start from the date of dismissal of appeal...."

As regards jurisdiction, the contention of the appellants is that pleading narrated in the plaint shows that only non compliance of standing orders has been objected, hence it is an industrial dispute and civil courts have no jurisdiction whereas respondent has submitted that he has assailed the dismissal order on the ground of violation of equality and principles of natural justice and in view of the law laid down in Rajasthan State Road Transport Corporation and Another Vs. Bal Mukund Bairwa, , the civil courts have jurisdiction and it has been held as under:

"In a case where no enquiry has been conducted, there would be violation of the statutory Regulation as also the right of equality as contained in Article 14 of the Constitution of India. In such situation, a civil suit will be maintainable for the purpose of declaration that the termination of service was illegal and the consequences flowing therefrom. However, we may hasten to add if a suit is filed alleging violation of a right by a workman and a corresponding obligation on the part of the employer under the Industrial Disputes Act or the Certified Standing Orders, a civil suit may not lie. However, if no procedure has been followed as laid down by the statutory Regulation or is otherwise imperative even under the common law or the principles of natural justice which right having arisen under the existing law, sub-para (2) of paragraph 23 of the law laid down in Premier Automobiles Ltd. (supra) shall prevail."

Further, the law is very clear on the point that second appeal could be entertained only on the ground of substantial questions of law as laid down in Gurdev Kaur and Others Vs. Kaki and Others, wherein it has been held:

"Now, after 1976 Amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 C.P.C. only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as "substantial question of law" which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become "third trial on facts" or "one more dice in the gamble". The effect of the amendment mainly, according to the amended section, was:

(i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved;

(ii) The substantial question of law to precisely state such question;

(iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal;

(iv) Another part of the Section is that the appeal shall be heard only on that question.

It is bounden duty of the High Court to entertain second appeal within the ambit and scope of Section 100 C.P.C."

In Bholaram Vs. Ameerchand, , the Hon''ble Supreme Court held as under:

"The High Court, however, seems to have justified its interference in second appeal mainly on the ground that the judgments of the courts below were perverse and were given in utter disregard of the important materials on the record particularly misconstruction of the rent note. Even if we accept the main reason given by the High Court the utmost that could be said was that the findings of fact by the courts below were wrong or grossly inexcusable but that by itself would not entitle the High Court to interfere in the absence of a clear error of law."

Further in Ramaswamy Kalingaryar Vs. Mathayan Padayachi, , the Hon''ble Supreme Court held as under:

"Suggested shortcomings in the findings of fact recorded by the Courts below would not alter the situation that those were findings of fact, unquestionable, under the provisions of Section 100 CPC which defines the contours of the power of the High Court in second appeal."

In view of the above that both the courts below have recorded concurrent findings of fact and no substantial question of law is involved, the appeal is accordingly dismissed.