Delhi High Court
Sh. Tek Chand vs Union Of India And Anr. on 23 May, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.222/2013
% 23rd May, 2014
SH. TEK CHAND ..... Appellant
Through: Mr. Devender Singh Khatana,
Advocate.
Versus
UNION OF INDIA AND ANR. ..... Respondents
Through: Mr. Himanshu Bajaj, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This second appeal is filed under Section 100 of Code of Civil
Procedure, 1908 (CPC) against the judgment of the first appellate court
dated 2.7.2013 which allowed the appeal filed by the defendant in the suit
against the judgment and decree dated 13.4.2012 of the trial court. Trial
court by the judgment and decree dated 13.4.2012 while holding the
appellant/plaintiff unable to substantiate grounds for setting aside the
disciplinary proceedings, thereafter yet held that the punishment imposed of
dismissal from services was disproportionate to the chargesheet of not
RSA 222/2013 Page 1 of 5
joining back the duty and hence directed reinstatement of the
appellant/plaintiff with the consequential benefits.
2. The first appellate court set aside the judgment of the trial court
by referring to the fact that once the case against the appellant/plaintiff was
proved before the disciplinary authority of his having wrongly not joined
back the services, and consequently he had to be discharged from service,
the trial court ought not to have, in a case which was not even pleaded by the
appellant/plaintiff of disproportionate punishment, reinstated the
appellant/plaintiff in service with all consequential benefits.
3. The relevant observations which have been made by the first
appellate court in its impugned judgment dated 2.7.2013 are contained in
paras 10 to 12 of the impugned judgment and which read as under:-
"10. The trial court framed the issue no.3 "whether the plaintiff is
entitled to the relief of declaration as prayed for?" OPP. While
deciding the issue no. 3, the trial court held as under:
"Under this issue it was not denied that he had overstayed. No
specific ground has been proved in the case as to how the
principles of natural justice have been violated. Vague
grounds have been taken that plaintiff was not given
opportunity to cross examine the witness and medical
certificates were not considered. PW-2 has rather stated he
has no documentary evidence to support the illness of the plaintiff
or that any riot took place in the area. He had no knowledge of
any medical treatment or doctor. It has come in the enquiry report
that even despite giving the time plaintiff had not produced
the medical documents. The allegations against the enquiry
officer that the plaintiff was not allowed to put question to the
RSA 222/2013 Page 2 of 5
witness is also belied from the enquiry proceedings placed
before me. Thought it is correct that there was some
medical problem with the plaintiff as made out from
Ex.PW-1/2A to PW-1/2D which are medical documents but those
are not sufficient to deter him from joining the service but may
be relevant for the sentence
purpose...............................................Thus in these
circumstances, I do not find any defect in the enquiry
proceedings and there is no violation of principles of natural
justice and the order holding the plaintiff guilty is just and
proper..............."
11. As such, while deciding the issue no. 3, the trial court held
that the plaintiff failed to prove the grounds on which he
challenged the dismissal order. In the appeal, counsel for the
plaintiff addressed the arguments to justify the two grounds as
mentioned above which were the basis of the suit. But the plaintiff
has not challenged the findings given by the trial court to hold that
there was no violation of principle of natural justices either by
way of cross appeal or the objection. As such, the same have
attained finality. Therefore, the plaintiff cannot raise the pleas to
this effect. In view of the foregoing discussion, it can be held that
the plaintiff has accepted that the defendants have not violated the
principle of natural justice while conducting the departmental
enquiry.
12. In view of the foregoing findings, the trial court
should have dismissed the suit then and there. However, instead
to do that, the trial court considered the submission made by the
counsel for the plaintiff that the punishment awarded did not
commensurate with the gravity of the misconduct.
Thereafter, the trial court held that punishment awarded was not
justified and set aside the dismissal order and directed
re-instatement of the plaintiff, however, awarded the minor
penalty of withholding his two increments. Before dealing with
the question whether the trial court was justified in setting aside
the dismissal order dated 17.10.1991 and directing re-instatment
of the plaintiff, the question arises whether the trial court was
justified in entertaining and interfering with the quantum of
RSA 222/2013 Page 3 of 5
punishment. As discussed above, the plaintiff challenged the
dismissal order only on the two grounds as mentioned above. As
discussed above, the trial court held that the plaintiff failed to
prove the same. In the entire plaint, it was no where the case of
the plaintiff that the punishment awarded by the defendants was
inappropriate. Therefore, the said plea raised by the plaintiff at
the time of final arguments was beyond pleadings. Further,
the entire judgment is silent as to the basis and the material
available with the trial court to hold so. As such, it can be held
that while holding so, the trial court had not only gone beyond the
scope of the suit but also had given a finding without any basis.
While holding so, the trial court relied upon the judgment passed
by the Hon'ble Supreme Court in "Ex Naik Sardar Singh vs.
Union of India" reported in 1991 (3) SCC 213 wherein it was
held that punishment must be commensurate with the gravity of
misconduct and disproportionate severe punishment is arbitrary
and is open to the court interference. As discussed above, the
plaintiff had not challenged the quantum of the penalty nor it was
his case that the penalty did not commensurate with the charges
leveled against him, therefore, there was no occasion for
applicability of the said judgment in the said suit."
4. It is conceded before me on behalf of the appellant/plaintiff that
the appellant/plaintiff did not challenge the findings against him of his being
unsuccessful in seeking setting aside of the disciplinary proceedings holding
the appellant/plaintiff guilty. Once that is so, and there is no plea which was
raised by the appellant/plaintiff of disproportionate punishment, and for
which reason no such issue was framed, trial court could not have reinstated
the appellant in service effectively by setting aside the dismissal order
though it had upheld the dismissal order simultaneously.
RSA 222/2013 Page 4 of 5
5. I may note that the law with respect to interference by the court
on the quantum of punishment is well settled and it has been repeatedly held
by the Supreme Court that courts cannot substitute the punishment which is
imposed by the disciplinary authority unless the punishment shocks the
judicial conscience. In my opinion, in the facts of the present case, the
punishment imposed could not shock the judicial conscience because an
organization cannot function if employees of that organization at their own
sweet will do not join the services and stay on extended leaves. In a case
such as the present, therefore, I do not find that the first appellate court erred
in setting aside the judgment of the trial court which granted relief on ground
which was not even pleaded and grant of which relief in fact amounted to
setting aside the dismissal order although the trial court held that there was
no sufficient ground to set aside the dismissal order.
6. In view of the above, no substantial question of law arises
under Section 100 CPC for this appeal to be entertained, and the same is
therefore dismissed, leaving the parties to bear their own costs.
MAY 23, 2014 VALMIKI J. MEHTA, J.
Ne
