Union Of India & Ors. vs Shyamwati & Ors.
2011 Latest Caselaw 4163 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No.44/2011

%                                                    26th August, 2011

UNION OF INDIA & ORS.                              ...... Appellants
                                Through:     Mr. Sanjeev Sachdeva, Sr. Adv.
                                             with Mr. Ankur Chibber, Adv.


                          VERSUS


SHYAMWATI & ORS.                                     ...... Respondents

                                Through:     None.



CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

VALMIKI J. MEHTA, J (ORAL)

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

1. 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.

2. 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 upon Executive Committee of UP Warehousing Corp. Vs. Chandra Kiran Tyagi AIR 1970 SC 1244 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 upon Dr. S.B. Dutt vs. University of Delhi AIR 1958 SC 1040 and S.R. Tewari vs. District Board Agra AIR 1964 SC 1680. 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 AIR 1999 SC pg.677 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 AIR 1958 SC 300 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 Courat in Bhim Singh vs. UOI AIR 1970 SC 150. 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 filmsy 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."

3. 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.

4. 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.

5. 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.

6. 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.

AUGUST 26, 2011                                VALMIKI J. MEHTA, J.
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