Gujarat High Court
Mahendraba Vijaysinh Zala Lh Of Decd ... vs District Police Officer, Rajkot Rural on 11 June, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 207 of 2024
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MAHENDRABA VIJAYSINH ZALA LH OF DECD VIJAYSINH DANUBHAI
ZALA
Versus
DISTRICT POLICE OFFICER, RAJKOT RURAL & ORS.
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Appearance:
MR. JAY M THAKKAR(6677) for the Appellant(s) No. 1
for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 11/06/2024
ORAL ORDER
Learned advocate for the appellant has filed a draft
amendment. The same is allowed. To be carried out forthwith.
2. This appeal under Section 100 of the Civil Procedure Code
assails the impugned judgment and decree whereunder the
learned 3rd Additional Senior Civil Judge, Rajkot dismissed the
RCS No.231 of 1996 filed for seeking relief for declaration and
injunction which is confirmed by the learned 13 th Additional
District Judge, Rajkot in RCA No.89 of 2011.
3. The facts needed to decide this appeal can be outlined as
under:
3.1 The appellant - plaintiff - late Vijaysinh Danubha Zala had
preferred R. C. S. No. 231/1996 against the respondents before
the learned 3rd Additional Senior Civil Judge, Rajkot inter alia
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praying to declare that the order of termination passed by the
defendant is illegal and unconstitutional and to pray issuance of
permanent injunction restraining the defendant from interfering
in service of the plaintiff and not to implement the termination
order. During pendency of the suit, plaintiff - - Vijaysinh
Danubhai Zala had expired on 07/04/2007 and therefore heirs
and legal representatives of the deceased were brought on
record. The defendants have filed the written statement
contesting the suit denying all the contentions raised in the suit
by the plaintiff. The learned trial Court after considering the
evidence produced on record had dismissed the suit.
3.2 Upon dismissal of the suit, the plaintiff - appellant filed
Regular Civil Appeal No.89 of 2011 before the learned District
Court, Rajkot wherein the learned appellate court after
appreciating the evidence placed before it dismissed the appeal
confirming the judgment and decree passed by the learned trial
Court.
4. To admit this Second Appeal, learned advocate for the
appellant Mr.Thakkar has assailed the concurrent finding by
referring the questions of law set out in paragraph 4 of memo of
this appeal. He would submit that the question of law stated in
paragraph 4 are substantial questions of law and therefore
appeal deserves consideration.
4.1 He would further submit that departmental proceedings
against the deceased who was serving Armed Police Constable in
Rajkot Police as permanent employee was initiated and
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conducted upon the circular dated 03/12/1982 which came to
be cancelled on 22/07/1986. He would further submit that
though in departmental proceedings charge was levelled against
the deceased-plaintiff-Vijaysinh Danubha Zala that he was in
drunken condition while he was on duty; no FIR was ever
registered against the deceased. No other test was carried out to
establish that he was in inebriated condition when he was on
duty and yet in departmental proceedings charge-sheet was
given to the deceased. Learned court below were required to
ascertain this legal aspects; but did not notice the same which
renders the impugned judgment and decree lawless.
4.2 He would further submit that going through the
departmental proceedings culminated into the order of dismissal,
it appears that it was a case of no evidence. None of the relevant
witnesses were examined; yet plaintiff - Vijaysinh was dismissed
from service. He would submit that the order passed in
departmental proceedings which was challenged in the civil
court was arbitrary, perverse and capricious order and there was
no evidence against the deceased in the departmental
proceedings; yet the deceased was removed from the service.
4.3 It is further argued that learned appellate court was
required to frame point of determination under O.41 R.31 of the
CPC. The impugned order indicates that no specific issues or
point of determination are framed by the learned appellate court
while dismissing the appeal. Learned advocate for the appellant
submitted that though the civil court has limited jurisdiction to
decide the issue raised in the suit, learned trial Court has
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committed jurisdictional error while dismissing the cause of
action stated by the plaintiff. He would further submit that the
error committed by the learned civil court is continued in the
appeal proceedings. He would further submit that first appellate
court is the last court of appreciation of evidence and thus the
appellate court was required to re-look at and review the
evidence recorded during the trial; however the appellate court
has completely shut its eyes on the legal aspect. The finding of
the appellate court suffers from serious error and infirmity
therefore it is submitted to admit this second appeal.
4.4 One more aspect was argued that in the present case, the
complainant and the Inquiry Officer is one and the same and
that led the miscarriage of justice as existence of bias in the
departmental proceedings cannot be ruled out.
5. Upon above submissions, learned advocate for the
appellant Mr.Thakkar would submit to admit this appeal on the
substantial questions of law as set out in memo of appeal.
6. Having heard the learned advocate for the appellant on
admission of this second appeal, at the outset I may refer to the
questions of law as framed in the memo of appeal to find out as
to whether, any of them are the substantial questions of law.
"a. Whether both the Courts below have committed an error in
not considering that the enquiry officer has acted as a
prosecutor as well as a Judge?
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b. Whether both the Courts below have committed an error in
not considering that the inquiry is vitiated on the grounds of
violation of natural justice?
c. Whether learned Civil Court committed grave error of law
in not framing necessary points of determination and thereby
breached the provisions of Order 14 of Code of Civil Procedure?
d. Whether learned lower Appellate Court committed grave
error of law by not framing independent points of determination
and thereby had breached provisions of Order 41 Rule 31 of
Code of Civil Procedure?
e. Whether both the Courts below have committed an error in
not considering that there is violation of principles of natural
justice as sufficient opportunities was not provided to the
delinquent during the departmental inquiry?
f. Whether both the Courts below have committed an error in
not considering that punishment order is required to be
quashed and set aside on the ground of that the charges are not
proved and the same is based on no evidence?
g. Whether both the Courts below have committed an error in
not considering that the punishment order is a non-speaking
and unreasoned order?
h. Whether both the Courts below have committed an error in
not considering that the Departmental Inquiry was not
conducted in accordance with the provisions of Police Manual?
i. Whether both the Courts below have committed an error in
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not considering that the punishment imposed on the plaintiff is
shockingly disproportionate against the charges levelled?
j. Whether both the Courts below have committed an error in
not considering that no independent witnesses were examined
and therefore, same is smacked by bias?
k. Whether both the Courts below have committed an error in
not considering that in similar or grave offences, other officers
are imposed with lesser punishment?
l. Whether both the Courts below have committed an error in
not considering that no presenting officer was appointed during
the inquiry?
m. Whether both the Courts below have committed an error in
not considering that on similar charges, one Dhirajgiri
Bhabhutgiri was taken back in service?
n. Whether both the Courts below committed grave error of law
in not considering that there is violation of Article 14 & 16 of
Constitution of India and there is breach of Article 311(2) of
Constitution of India?
0. Whether both the Courts below have committed an error in
not considering that the Courts have power to reduce the
punishment?
p. Whether both the courts below committed grave error of law
in not considering the fact that authority has committed grave
error of law by relying upon circular dated 03/12/1982, which
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came to be cancelled on 22/07/1986, despite the fact that final
order of termination is dated 24/01/1996?"
7. What could be considered as substantial questions of law
has been succinctly examined in the case of in Hero Vinoth v.
Seshammal, [(2006) 5 SCC 545]. Relevant observations in
paragraph 21 are made as under:
"21. The phrase "substantial question of law", as occurring
in the amended Section 100 CPC is not defined in the
Code. The word substantial, as qualifying "question of law",
means of having substance, essential, real, of sound worth,
important or considerable. It is to be understood as
something in contradistinction with technical, of no
substance or consequence, or academic merely. However,
it is clear that the legislature has chosen not to qualify the
scope of "substantial question of law" by suffixing the
words "of general importance" as has been done in many
other provisions such as Section 109 of the Code or Article
133(1)(a) of the Constitution. The substantial question of
law on which a second appeal shall be heard need not
necessarily be a substantial question of law of general
importance. In Guran Ditta v. Ram Ditta 55IA 235 : AIR
1928 PC 172] the phrase "substantial question of law" as it
was employed in the last clause of the then existing
Section 100 CPC (since omitted by the Amendment Act,
1973) came up for consideration and their Lordships held
that it did not mean a substantial question of general
importance but a substantial question of law which was
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involved in the case. In Sir Chunilal case [1962 Supp (3)
SCR 549 : AIR 1962 SC 1314] the Constitution Bench
expressed agreement with the following view taken by a
Full Bench of the Madras High Court in Rimmalapudi
Subba Rao v. Noony Veeraju [AIR 1951 Mad 969 : (1951) 2
MLJ 222 (FB)] : (Sir Chunilal case [1962 Supp (3) SCR
549 : AIR 1962 SC 1314] , SCR p. 557)
"[W]hen a question of law is fairly arguable, where there is
room for difference of opinion on it or where the Court
thought it necessary to deal with that question at some
length and discuss alternative views, then the question
would be a substantial question of law. On the other hand
if the question was practically covered by the decision of
the highest court or if the general principles to be applied
in determining the question are well settled and the only
question was of applying those principles to the particular
fact of the case it would not be a substantial question of
law."
8. In Chandrabhan (Deceased) Through Lrs. Versus
Saraswati [2022 (0) AIR(SC) 4601] , the Hon'ble Apex Court has
summarized the principle in regards to section 100 of the CPC.
Relevant finding and observations in paragraph 31 to 33 reads
thus:
"31. The proper test for determining whether a question of
law raised in the case is substantial would be, whether it is
of general public importance or whether it directly and
substantially affects the rights of the parties and if so,
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whether it is either an open question in the sense that it is
not finally settled by this Court. If the question is settled
by the highest court or the general principles to be applied
in determining the question are well settled and there is a
mere question of applying those principles or the question
raised is palpably absurd, the question would not be a
substantial question of law.
32. To be 'substantial', a question of law must be
debatable, not previously settled by law of the land or a
binding precedent, and must have a material bearing on
the decision of the case, if answered either way, insofar as
the rights of the parties before it are concerned. To be a
question of law "involving in the case" there must be first, a
foundation for it laid in the pleadings and the question
should emerge from the sustainable findings of fact arrived
at by court of facts and it must be necessary to decide that
question of law for a just and proper decision of the case.
An entirely new point raised for the first time before the
High Court is not a question involved in the case unless it
goes to the root of the matter. It will, therefore, depend on
the facts and circumstance of each case whether a
question of law is a substantial one and involved in the
case or not, the paramount overall consideration being the
need for striking a judicious balance between the
indispensable obligation to do justice at all stages and
impelling necessity of avoiding prolongation in the life of
any lis. (See Santosh Hazari v. Purushottam Tiwari, (2001)
3 SCC 179).
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33. The principles relating to Section 100 of the CPC
relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of
a document is a question of fact. But the legal effect
of the terms of a document is a question of law.
Construction of a document involving the application
of any principle of law, is also a question of law.
Therefore, when there is misconstruction of a
document or wrong application of a principle of law
in construing a document, it gives rise to a question
of law.
(ii) The High Court should be satisfied that the case
involves a substantial question of law, and not a
mere question of law. A question of law having a
material bearing on the decision of the case (that is, a
question, answer to which affects the rights of parties
to the suit) will be a substantial question of law, if it
is not covered by any specific provisions of law or
settled legal principle emerging from binding
precedents and involves a debatable legal issue. A
substantial question of law will also arise in a
contrary situation, where the legal position is clear,
either on account of express provisions of law or
binding precedents, but the court below has decided
the matter, either ignoring or acting contrary to such
legal principle. In the second type of cases, the
substantial question of law arises not because the
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law is still debatable, but because the decision
rendered on a material question, violates the settled
position of law.
(iii) The general rule is that the High Court will not
interfere with findings of facts arrived at by the
courts below. But it is not an absolute rule. Some of
the well-recognised exceptions are where (i) the
courts below have ignored material evidence or acted
on no evidence; (ii) the courts have drawn wrong
inferences from proved facts by applying the law
erroneously; or (iii) the courts have wrongly cast the
burden of proof. When we refer to "decision based on
no evidence", it not only refers to cases where there is
a total dearth of evidence, but also refers to any case,
where the evidence, taken as a whole, is not
reasonably capable of supporting the finding."
9. In this case, principle argument canvassed by the learned
advocate for the appellant is that the departmental proceedings
lacks sanctity as it was case of no evidence and the prosecution
has not lead any evidence against the delinquent. Another
submission was that the circular upon which the departmental
proceedings was initiated and charge-sheet was given; has been
revoked by the authority later on, during departmental
proceedings and therefore finding of the departmental
proceedings based upon such circular could not sustain. Later
submission of learned advocate Mr.Thakkar would not survive in
view of the fact that when the charge-sheet was filed against the
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delinquent in the departmental proceedings, the circular was in
existence. Cancellation of the circular subsequently had not
retrospective effect and therefore charge-sheet which was filed on
the basis of the circular in existence would survive and could be
acted upon also in the departmental proceedings. As far as the
argument of the appellant that the departmental proceedings is
the case of no evidence is concerned, it appears that the civil
court has examined the issue and came to the conclusion that
the evidence which requires to be examined in the departmental
proceedings are examined. It is also observed by the learned civil
court that the evidence which is required to be lead in the
departmental proceedings should not equate with degree of
evidence to be lead during criminal proceedings. It is settled
principle of law that civil court does not sit as appellate court in
case where challenge is made to the departmental proceedings
and cannot examine the legality and validity of the evidence
recorded in the departmental proceedings; nor can re-examine
the evidence. Even civil Court cannot examine wrong application
of law.
10. In Badridan Bheravadan Gadhavi vs. State of Gujarat &
Ors., [1985 (2) GLR 1280] , this Court has observed in paragraph
7 as under:
"7. It is settled law that while dealing with such a matter, a Civil
Court does not sit in appeal against the judgment of the
disciplinary authority. There are various limitations imposed
upon the Civil Court while dealing with such a matter. But
there are two exceptions to this general rule and they are:(1)
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where the decision is based on no evidence and (2) where the
decision is perverse or un- reasonable, the Civil Court can
interfere with the finding arrived at by the disciplinary
authority. These two exceptions have common elements. "No
evidence" does not merely signify total dearth of evidence,
evidence which does not reasonably support the conclusion is
also comprehended within the meaning of the said expression.
In other words, cases where there is complete lack of evidence
and cases where the evidence, if any, is incapable of rationally
leading to the conclusion reached, are both treated on a par so
far as the applicability of the rule of "no evidence" is concerned.
While dealing with this aspect, a Division Bench of this Court in
the case of Siddharth Mohanlal Sharma v South Gujarat
University, 1982(1) 23 (1) GLR 233 reiterated the above
principle and ed that mere suspicion, even if honestly and bona
fide entertained on the basis of apparently cogent
circumstances, is held to be out of bounds even in domestic
inquiries, where the principle that in punishing the guilty
scrupulous care must be taken to see that the innocents are not
punished, is found to apply as much as it applies to regular
criminal trials. The Division Bench further observed that in the
ultimate analysis, the test which must be applied is whether
there is some material capable of having any evidential value. If
not, the case must be held to fall within the mischief of the rule
of "no evidence". It is true that these observations have been
made by the Division Bench while dealing with a Special Civil
Application, but there is no reason why the same principle
should not be applied while dealing with a civil suit challenging
the dismissal of a Government servant."
11. It is argued that appellate court has not followed O.41 R.31
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of the CPC. On going through the judgment and decree of the
appellate court, it seems that the submissions is misconceived.
In paragraph 14 of the judgment and decree of the appellate
court, the point of determination are framed and they are
answered against the appellant after addressing the contention
canvassed by appellant, alongwith reason to disbelieve them. In
paragraph 14, following points of determination is formulated:
"(1) Whether the Chargesheet and show cause notice and
removal Order issued by the defendants to the plaintiff are
illegal, unconstitutional, void and ineffective?
(2) Whether the Judgement and decree dated 31/12/2010
passed by Ld. Trial Court in R. C. S. No.231/1996 need
any modification, intervention or reversal?
(3) Whether the appellant / plaintiff is entitled to get relief
as prayed for in the suit?"
12. While re-examining the evidence, the learned appellate
court referred to the judgment of the Hon'ble Apex Court in case
of State Of Andhra Pradesh & Ors vs Chitra Venkata Rao [ AIR 1975
SC 2151]. The finding of the Hon'ble Apex Court reads as under:
"court is concerned to determine whether the inquiry is held by
the authority competent on that behalf is in accordance to the
procedure prescribed in that behalf and whether the rule of
natural justice are not violated, where there is some evidence
which the authority entrusted to hold the inquiry has accepted
and which evidence may reasonably support the conclusion
that the delinquent officer is guilty of charge, it is not the
function of High Court to review the evidence and to arrive at an
independent finding on the evidence. An error of law which is
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apparent on the face of the record can be corrected by writ. But
not an error of fact however grave it may appear to be. Finding
of fact recorded by the Tribunal cannot be challenged on the
ground that the relevant and the material evidence adduced
before the Tribunal is insufficient or inadequate to sustain a
finding. The adequacy or sufficiency led on a point and the
inference of fact drawn on the said finding are within the
exclusive jurisdiction of the Tribunal."
13. To be noted that delinquent who could be considered as
aggrieved person died during the proceedings of the suit and
therefore the court below had no privilege of his oral evidence.
14. In paragraph 24, learned appellate Court has elaborately
discussed the issue of case of no evidence; but record that in
departmental inquiry sufficient evidence was there. The evidence
does not mean a particular form of evidence; but the evidence to
substantiate the charge levelled against the delinquent. It is not
quarreled that delinquent was not given sufficient opportunity
during the departmental proceedings and as such departmental
proceedings suffers from the vice of principle of natural justice.
There is no rebutting argument in this regard.
14. On going through the questions of law farmed by the
appellant in view of section 100(3) of the CPC, none of them
found to be substantial questions of law as defined by the
Hon'ble Apex Court as referred to herein above. The present
appeal rather appears to be one more dias tossed into the game.
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15. Resultantly, appeal stands dismissed at admission stage.
(J. C. DOSHI,J)
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