State Of Gujarat vs Prafulchandra Bhanushanker ...
2023 Latest Caselaw 6976 Guj

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     C/SA/213/2009                               ORDER DATED: 21/09/2023

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          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/SECOND APPEAL NO. 213 of 2009

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                    STATE OF GUJARAT & 1 other(s)
                              Versus
                PRAFULCHANDRA BHANUSHANKER BHATT
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Appearance:
MS SUMAN J MOTLA, AGP for the Appellant(s) No. 1,2
MR HASIT H JOSHI(2480) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                             Date : 21/09/2023

                              ORAL ORDER

1. This Second Appeal under Section 100 of C.P.C. is at the instance of the original defendant-State of Gujarat and is directed against the judgment and decree dated 07.03.2007 passed in Regular Civil Appeal No.2 of 2005, passed by the Additional District Judge, Rajkot at Morbi arising from the judgment and decree dated 13.01.2005 passed in RCS No.80 of 1996, by which the Civil Court dismissed the suit for compensation and damages, whereas, in appeal, the Appellate Court awarded Rs.12,500/- towards damages to be paid by the appellant with 6% interest from the date of suit till realization.

2. The respondent-plaintiff P.B. Bhatt had filed a suit for damages against the appellants-original defendants. The plaintiff after completion of apprentice, applied for examination organized by Deputy Director, Training, National Employment Training Scheme. The plaintiff was given an opportunity for the

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written test. The result was declared by the appellant wherein in the paper of Work Calculation and Science, he was declared failed. He applied for reassessment of the marks and the reply on behalf of the appellant that, there is no mistake in the calculation of the marks as well as in examination of the answersheet. The plaintiff was told to apply again for the test to be held in the next year. Meanwhile, the plaintiff filed Special Civil Application No.13901 of 1993 before this Court. On 22.12.1991, the officers of the appellant were present before this Court along with the entire marksheets etc. Before this Court, he was declared pass in the examination. It is in these background facts, the plaintiff filed a suit for damages against the Government for alleged mental and physical harassment and negligent act on the part of the officers of the appellant. The Civil Court vide its judgment and decree dated 13.01.2005, dismissed the suit, holding that, the plaintiff failed to produce any documentary evidence regarding expenses spent for pursuing his case. In appeal preferred by the plaintiff, the Appellate Court reversed the findings of the trial Court, and awarded Rs.12,500/- towards the expenses and damages suffered by him on account of lethargic approach and wrongful act on the part of employee of the concerned department.

3. Being aggrieved and dissatisfied with the judgment and decree of the First Appellate Court, the appellant-original defendant is here before this Court with the present second appeal.

4. The second appeal has been admitted on the following

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C/SA/213/2009 ORDER DATED: 21/09/2023

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substantial questions of law:

"(1)whether Lower Appellate Court was justified in substituting the findings of the trial court without assigning any reasons and particularly, no evidence as such was found on record of the case, only on the basis of conjunctures and surmises and awarding compensation in this regard."

5. Learned Assistant Government Pleader Ms. Suman J. Motla has submitted that the judgment and decree of the First Appellate Court, upsetting the findings of the trial Court is contrary to the evidence on record and law. She would urge that, there was no any contractual obligation on the part of the appellant and therefore, when there was no any breach of duty towards the plaintiff, the Appellate Court could not have passed the decree of Rs.12,500/- and that too without any cogent and acceptable evidence and therefore, she submitted that, the Appellate Court was not justified in substituting the findings of the trial Court, as no evidence as such on record and on the basis of conjunctures and surmises, the Appellate Court awarded the compensation.

6. Mr. Hasit Joshi, learned counsel for the original plaintiff- respondent supported the findings of the First Appellate Court and submitted that, considering the conduct of the appellant and subsequent positive result of the test, itself is indicative of the fact that, the plaintiff was harassed by the appellant department and therefore, the token amount of compensation awarded does not require any interference in this second appeal.

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       C/SA/213/2009                                ORDER DATED: 21/09/2023

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7. Having heard learned counsel for the respective parties and having gone through the material on record, the only question that falls for my consideration is whether the second appeal involves any substantial question of law?

8. In the facts of the present case, in order to clear the alleged test, the plaintiff appeared in the examination and in one of the paper, zero marks was being given and he was declared failed in the test. In the application of reassessment, the result was not changed. Surprisingly, before this Court in the Special Civil Application, on the direction, the officer of Department remained present with all the answersheets of the plaintiff in relation to the test conducted. On scrutiny, the officer, present before this Court, declared that the plaintiff obtained sufficient passing marks in the paper in which zero marks was given and was declared passed in the test. In these background facts, the suit was filed, for getting the damages. This Court is of considered view that, in the reassessment process if the department could have taken due diligence, then, the plaintiff would have been declared pass in the test and question does not arise to raise his grievance by resorting to legal remedy at the High Court level. Thus, therefore, this Court is of considered view that the Appellate Court has taken the ground reality into consideration while awarding token amount of compensation of Rs.12,500/- considering the fact that he might have incurred the expenses towards transportation as well as legal expenses.

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       C/SA/213/2009                      ORDER DATED: 21/09/2023

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9. For the reasons recorded, the findings recorded by the First Appellate Court cannot be termed perverse and arbitrary. This second appeal does not involve any substantial question of law. In the result, the second appeal fails and is hereby dismissed.

(ILESH J. VORA,J) TAUSIF SAIYED