Union of India (UOI) and Others vs Shyamwati and Others

Valmiki J Mehta, J.

CM No. 4645/2011 (exemption)

Allowed, subject to all just exceptions.

Application stands disposed of.

CM No. 4644/2011 (condonation of delay)

Delay of 54 days in filing of the appeal is condoned. CM stands disposed of.

RSA No. 44/2011

The challenge by means of this Regular Second Appeal is to the two concurrent judgments of the Courts below, first being of the first Court/Original Court dated 4.7.2009, and second being of the second Court/Appellate Court dated 8.9.2010, and by which judgments, the Courts below have decreed the suit of the Respondents and held that the summary court martial conducted by the Appellants/Defendants was violative of the principles of natural justice. It was also held that Civil Courts had the jurisdiction to entertain the suit by which the punishment of the Respondent No. 1 of discharge from the Army was challenged.

The Court of first instance has very pithily summarized the findings and conclusions with regard to the jurisdiction of the Civil Court and also violative of the principles of natural justice, in the following terms:

Issues No. 1 and 2 are decided together as declaration is dependent upon the outcome of issue No. 1 and if the inquiry report is held illegal then the natural result is entitlement of Plaintiff qua relief of declaration. During the course of arguments, the counsel for Defendant has argued regarding the maintainability of the suit also. The counsel for Plaintiff has refuted the arguments and submitted that PW1 has appeared as a witness and he deposed before the court regarding the manner in which the action was taken and relied up on Executive Committee, U.P. Warehousing Corporation Vs. Chandra Kiran Tyagi, and submitted that in relation to the master and servant whenever statutory status is given to an employee and there is violation of the provisions of stature while terminating the services of the said employee, then suit for declaration is maintainable. To the same effect he has also relied up on S.R. Tewari Vs. District Board Agra and Another, . The arguments of the defence is that it has to be seen whether the stature rights have been violated and same is to be proved and then only it can be seen whether the suit for declaration is maintainable, but I am not in agreement to this argument as to show that provisions of stature has been violated, one has to file a suit and in this case also issue No. 1 and 2 deals with the same and in these circumstances it is held that the suit is maintainable subject to finding on issue No. 1 and 2. As even the suit is held to be maintainable, but Plaintiff fails to show any reasonable ground for having a decree for declaration then his suit will automatically fails. Ld. Cl. has relied upon Kuldeep Singh Vs. The Commissioner of Police and Others, and argued that when there is No. evidence in support of charge framed against the delinquent office the judicial review is always available. The concept of reasonable opportunity was discussed in Khem Chand Vs. The Union of India (UOI )and Others, wherein it was observed that "To summarise the reasonable opportunity envisaged by the provisions under consideration include: (a) An opportunity to deny his guilt and establish his innocence which he can only do if he is told what the charges leveled against him are and the allegations on which such charges are based. (b) An opportunity to defend himself by cross examination the witnesses produced against him and by examining himself or any other witness in respect of his defence and finally (c) An opportunity to make his representation as to why the proposed punishment should not be inflicted on him which he can only do if the competent authority after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the Government servant tentatively proposes to inflict only of the three punishments and communicates the same to the Govt. Servant. The principle of natural justice has to be followed at all stages of departmental proceedings as it has been held by Supreme Court in A.K. Kraipak and Others Vs. Union of India (UOI) and Others, . In departmental proceedings the authority has to follow fair procedure confirming to principles of natural justice at all stages and if there is any lapse at any stage it vitiates the entire proceedings. Thus, now I have to see as to whether principles of natural justice have been violated or not in the present case. In the present case the case of the Plaintiff is that though he remained absent but he could have given reasonable explanation to the department if appropriate opportunity would have been given to him but he has been summarily dismissed and later on was summarily discharged on appeal without following principles of natural justice and mandatory provisions of law. The Defendants did not examine a single witness to refute the arguments and could not substantiate their claim. Though in the defence it has been mentioned that appropriate proceedings were carried out and reasonable opportunity was granted and further it has been argued that he was given punishment on the basis pleading guilty but the same could not be substantiated by the department by producing any relevant witness. The Defendants have relied upon the performa vide which the proceedings were carried out and the same has been produced before me. The same can be read against them even without formal proof. This is a stereotype performa and was filled up without following the principles of natural justice. In the last column two punishments were awarded i.e. dismissal from service and reduction in rank. It seems that proceedings have been carried out in the flimsy way just as something is being purchased in the market place. Though the Plaintiff has argued that he was never given any opportunity to produce his witness in defence but the Ld. Cl. for Defendant has submitted that he was asked what does he want to say and which witness he want to call but he replied in negative. I have gone through the relevant page C of the invoice of the performa in which simply "No" is written without any signatures of the Plaintiff. Thus the argument of the Defendant is self destructive and does not suit to the conscious. Mahor penalty was awarded that to by way of two punishments i.e. dismissal from service as well as reduction in rank and in these circumstances the other party i.e. the Plaintiff should have been given appropriate opportunities.

I completely agree with the aforesaid findings and conclusions of the Trial Court. Section 9 CPC provides that the Civil Courts will entertain every suit of a civil nature excepting suits of which cognizance is either expressly or implicitly barred. There is No. express or implied bar to the filing of the subject suit. In fact, every person is entitled to approach the Court of law to redress his grievances, and a person cannot be left remediless.

Learned senior counsel for the Appellants/Defendants sought to argue that the petition under Article 226 of the Constitution of India was the only remedy. I do not agree inasmuch as a petition under Article 226 to challenge the punishment is only one of the remedies which is available to an aggrieved person. However, it does not mean that the civil suit cannot be filed. In this case, the original punishment order of dismissal from service was reduced by the Appellate Authority to a discharge from service and which thus could have been impugned in a civil suit. Therefore, the Respondent/Plaintiff was fully justified in proceeding a civil suit to challenge this order of discharge.

Further, No. error can be found with the finding that there is gross violation of principles of natural justice because the Respondent No. 1 joined the service after the alleged unauthorized leave of about 127 days on 23.11.1989, and admittedly, a show-cause notice was served on the Plaintiff/Respondent on 26.12.1989. Summary court martial was held on the same date. The statement of the Respondent/Plaintiff that he does not want to lead any evidence was recorded on the same date. Punishment was also awarded on the same date. Therefore, in a span of just about 12 hours, the complete proceedings took place and the Plaintiff/Respondent was awarded the punishment of dismissal which was reduced to that of discharge by the Appellate Authority. I may note that the Trial court has rightly observed that in the stereotype proforma where the provision is made as to whether the accused wants to lead evidence, the word "No" is written, however, there are No. signatures of the Respondent/Plaintiff as against that expression.

In view of the above, there is gross violation of the principles of natural justice in the facts of the present case and I completely agree with the judgments of the Courts below which have set aside the order of discharge.

In view of the above, I do not find that any substantial question of law arises. Dismissed.

CM No. 4643/2011(for stay)

In view of the orders passed in the appeal, No. orders are required to be passed in this application. CM stands disposed of.