Karnataka High Court
Venkataraya S/O Sannappa Naik vs M/S B D K Agro Chemicals on 12 December, 2023
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RSA No. 5188 of 2011
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO.5188 OF 2011 (DEC)
BETWEEN:
SRI. VENKATARAYA
S/O SANNAPPA NAIK,
AGE: 67 YEARS, OCC: PRIVATE SERVICE,
R/O. SANMARG NAGAR, K.E.C. COLONY,
GOKUL ROAD, HUBLI-580030.
...APPELLANT
(BY SRI. ANANT P.SAVADI, ADVOCATE)
AND:
M/S B.D. K. AGRO CHEMICALS,
NO.47/48, INDUSTRIAL ESTATE,
GOKUL ROAD, HUBLI-580020
REPRESENTED BY ITS PARTNER
SRI. BHARAT M.KHIMJI
...RESPONDENT
Digitally signed
by VISHAL (BY SRI. G.N. RAICHUR, ADVOCATE)
VISHAL NINGAPPA
PATTIHAL
NINGAPPA Date: THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
PATTIHAL 2023.12.22
10:41:16 100 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE
+0530
JUDGMENT AND DECREE DATED 23.10.2010 PASSED IN
R.A.NO.143/2007 ON THE FILE OF THE FIRST ADDL. SENIOR CIVIL
JUDGE AT HUBLI, ALLOWING THE APPEAL FILED AGAINST THE
JUDGMENT DATED 06.10.2007 AND THE DECREE PASSED IN
O.S.NO.409/2006 ON THE FILE OF THE II ADDL. CIVIL JUDGE
(JR.DN.) AND J.M.F.C., III COURT AT HUBLI, DECREEING THE SUIT
FILED FOR RELIEF OF DECLARATION.
THIS REGULAR SECOND APPEAL, COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 5188 of 2011
JUDGMENT
The present regular second appeal by the plaintiff
assailing the Judgment and decree dated 23.10.2010 of the
first appellate Court in RA No.143/2007 on the file of the I
Additional Senior Civil Judge, Hubballi, setting aside the
Judgment and decree in OS No.409/2006 on the file of the II
Additional Civil Judge and III JMFC, Hubballi dated 16.10.2013.
2. This Court while admitting the appeal framed
following substantial question of law on 27.08.2015, which
reads as under:
"1. Whether the lower Appellate Court is
justified in dismissing the suit of the plaintiff
holding that suit filed by the plaintiff is not
maintainable under Section 9 of the Code of
Civil Procedure?
2. Whether the lower Appellate Court
justified in reversing the judgment and
decree of the Trial Court holding that the
private servant cannot claim subsistence
allowance by way of wages or otherwise
during the pendency of the enquiry and
declaration to that effect is impermissible?
3. Whether the lower Appellate Court is
justified in reversing the judgment and
decree of the Trial Court when the appellant
has not worked from 07.01.1997 till the date
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of filing of the suit and whether he is entitled
for subsistence allowance?
4. Whether the lower Appellate Court is
justified in reversing the judgment and
decree of the Trial Court in the facts and
circumstances of the present case?"
3. Sri.Ananth P. Savadi, learned counsel for the
appellant and Sri. G.N. Raichur, learned counsel appearing for
the respondent have been heard on the substantial question of
law framed by this Court.
4. Suit seeking declaration that the charge sheet
dated 07.01.1997 and enquiry cum notice dated 04.02.1997
were issued by the incompetent person, without authority and
non-payment of wage as subsistence allowance to the plaintiff
during the enquiry and delay in conducting enquiry was against
the natural justice, hence illegal and void. Plaintiff was
appointed as a Sales Executive in the respondent-Firm and he
worked from 01.04.1991 to 20.11.1996 in the said capacity,
there was a misappropriation of funds, the defendant-firm
issued the charge sheet on 07.01.1997, stating that the
plaintiff had misappropriated the funds of the firm and sought
explanation from the plaintiff.
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5. The plaintiff replied to the charges and thereafter,
the Enquiry Officer was appointed and notice of the enquiry was
issued by the partner of the Firm, enquiry was commenced in
which, the plaintiff attended regularly and the Enquiry Officer
held that the charges leveled against the plaintiff was proved.
The disciplinary authority concurred with the findings of the
Enquiry Officer. The main grievance of the plaintiff is that the
procedure adopted by the Firm and the show-cause notice
issued is not by an competent person and without authority and
also that the delay in conducting the enquiry has resulted in the
violation of the natural justice.
6. The trial on the basis of pleadings framed the
following:
1) Whether the plaintiff proves that
charge sheet dated 7-1-97 enquiry order
cum notice dated 4-2-1997 are issued by
the incompetent person without
authority?
2) Whether the plaintiff proves that non
payment of wages as subsistence
allowance to the plaintiff during the
enquiry and delay in conducting the
enquiry are against the principles of
natural justice and void?
3) Whether the plaintiff proves that, the
plaintiff is entitled to receive the wages
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last drawn per month as subsistence
allowance from 1-2-1996 to till
completion of the enquiry initiated by the
defendant?
4) Whether the suit of the plaintiff is
maintainable within the provisions of
Industrial Disputes Act 1947?
5) Whether the suit of the plaintiff is
barred by limitation?
6) Whether the plaintiff is entitled for
declaration as sought for?
7. In order to substantiate their claim, the plaintiff
examined himself as PW.1 and got marked documents at
Ex.P.1 to 29. On the other hand, the Authorized Officer of the
defendant was examined as DW.1 and got marked documents
at Ex.D.1 to 18.
8. The trial Court by the impugned order held that:
i) The plaintiff failed to prove that the charge sheet and the
enquiry order cum notice issued was by a incompetent
person.
ii) The plaintiff proved that non-payment of wages as
subsistence allowances to the plaintiff during the
enquiry and delay in conducting the enquiry are
against the principles of natural justice.
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iii) The plaintiff's suit is maintainable before the Civil
Court
9. By the impugned Judgment and decree, decreed the
suit of the plaintiff in part and declared that non-payment of
wages as subsistence allowances to the plaintiff during enquiry
and delay in conducting the enquiry are against the principles
of natural justice, however, the relief of declaration to declare
the charge sheet dated 07.01.1997, enquiry order cum notice
dated 04.02.1997 was illegal by an incompetent person without
authority is illegal and void and is dismissed as barred by
limitation.
10. Feeling aggrieved, the Company preferred an
appeal before the first appellate Court, the first appellate Court
while reconsidering and re-appreciating the entire oral and
documentary evidence independently, arrived at a conclusion
that the relief claimed against the Partnership Firm is not
maintainable and the plaintiff is not entitled for declaration as
sought in the plaint and consequently, the suit of the plaintiff
came to be dismissed. Aggrieved by the dismissal of the suit,
the present second appeal by the plaintiff.
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11. Learned counsel for the appellant would contend
that the reasons assigned by the first appellate Court to dismiss
the suit of the plaintiff seeking relief of declaration is totally
erroneous and warrants interference by this Court. Learned
counsel would contend that the reasons assigned by the first
appellate Court that the suit is not in accordance with Order 30
Rule 1 CPC without impleading the other parties and on the
sole ground, the dismissal of the suit was not justified and the
reasoning accorded by the first appellate Court that private
servant cannot claim subsistence allowance by way of wages
during pendency of enquiry and declaration to that effect is
impermissible to be granted by Civil Court is highly
unsustainable.
12. Per contra, learned counsel appearing for the
respondent seeks to justify the Judgment and decree of the
first appellate Court and would contend that the first appellate
Court being the last fact finding Court, has rightly re-
appreciated the entire oral and documentary evidence and has
arrived at a conclusion that the plaintiff is not entitled for
declaration as sought for in the plaint.
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13. This Court has carefully considered the rival
contentions urged by the learned counsel for the parties and
perused the material on record including the original records.
14. The prayer of the plaintiff is evident from para
No.17 of the plaint, which reads as under:
"17. It is therefore the plaintiff most humbly pray
that:
(A) The Hon'ble Court may be pleased to declare
that the charge sheet dated 7.1.1997 enquiry
order cum notice dated 4.2.97 are issued by the
incompetent person, without authority and non-
payment of wage as subsistence allowance to
the plaintiff during enquiry and delay in
conducting enquiry are against the principles of
natural justice, hence illegal, void. Further the
Hon'ble Court may be pleased to declare that
the plaintiff from 1.2.1996 to till date is entitled
to receive full wages last drawn per month as
subsistence allowance, till completion of the
enquiry initiated by the defendant.
(B) The Hon'ble Court may be pleased to grant such
other reliefs as the court deems fit including as
to cost of this suit.
(C) Further the hon'ble court may be pleased to
permit to amend the plaint if and when
necessary in the interest of justice and equity."
15. The grievance of the plaintiff is that, while
conducting domestic enquiry, the principles of natural justice
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have been violated and though the charge sheet was issued on
07.01.1997 till the date of filing of the suit, the enquiry was not
conducted and the denial of subsistence allowance to the
plaintiff has caused miscarriage of justice and the natural
justice has been violated. The trial Court by the impugned
order though went to the extent of granting the said relief,
holding that the enquiry and delay in conducting the enquiry
was against the principles of natural justice. The first appellate
Court has rightly held that the principles of natural justice have
not been violated.
16. In the absence of any material or the evidence
forthcoming as to how the principles of natural justice have
been violated, the Civil Courts jurisdiction under the prayer as
sought by the plaintiff would not be maintainable. However, the
first appellate Court was of the opinion that since the defendant
has not taken contention regarding the jurisdiction of the Civil
Court, the trial Court holding that the suit is not maintainable
was not justified. The trial Court has not concentrated on the
legal grounds raised by the defendant as to whether the suit is
maintainable before the trial Court in view of the mechanism
provided under law. The first appellate Court has rightly held
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that the suit of the plaintiff is not maintainable under Section 9
of the Code of Civil Procedure and the first appellate Court was
justified in reversing the judgment and decree of the trial
Court, holding that the private servant cannot claim
subsistence allowance by way of wages or otherwise during the
pendency of the enquiry. The appellant-plaintiff having failed
to establish their legal entitlement and the violation of
principles of natural justice in the disciplinary authority that
was initiated the first appellate Court was justified in dismissing
the suit. The Apex Court in the case of Rajasthan State Road
Transport Corporation and Others Vs. Deen Dayal
Sharma1 has laid down the law that if a suit is based on
violation of principles of common law or constitutional
provisions or any other grounds, civil Courts jurisdiction may
not be held to be barred, the appellant-plaintiff has not proved
that the action on part of the company is against the principles
of natural justice for the Civil Court to have jurisdiction, more
particularly in light of paragraph No.17 of the plaint.
Accordingly, the substantial question of law framed by this
Court needs to be answered against the plaintiff and the first
(2010) 6 SCC 697
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appellate Court has rightly held that the Civil Court has no
jurisdiction to grant the prayer as sought by the plaintiff. The
manner in which, the appellate Court has considered the entire
evidence and materials on record, this Court is of the
considered view that the same does not warrant any
interference by this Court and accordingly, this Court pass the
following:
ORDER
i) The Regular Second Appeal is hereby
dismissed.
ii) The Judgment and decree of the First
Appellate Court stands confirmed.
Sd/-
JUDGE
PJ/Ct-Umd
