Madhya Pradesh High Court
Kamlesh Babu Shakya vs Harbhuwan Singh Tomar on 13 December, 2023
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
CIVIL REVISION No. 807 OF 2023
BETWEEN:-
KAMLESH BABU SHAKYA S/O SHRI MATADEEN
SHAKYA, AGED ABOUT 37 YEARS, OCCUPATION:
LOHARPURA MAUN PRESENTLY POSTED IN
GOVT HIGHER SECONDARY SCHOOL MAUN
MAUN TEH GOHAD DISTRICT- BHIND (MADHYA
PRADESH)
--------REVISIONER
(BY SHRI JITENDRA KUMAR SHARMA - ADVOCATE)
AND
HARBHUWAN SINGH TOMAR, S/O SHRI
VIJENDRA SINGH TOMAR, AGED 42 YEARS,
OCCUPATION: BLOCK EDUCATION OFFICER
DIVISIONAL OFFICE OF EDUCATION GWALIOR
(MADHYA PRADESH)
------ RESPONDENT
(NONE FOR THE RESPONDENT)
---------------------------------------------------------------------------------------------
Reserved on : 06/12/2023
Delivered on : 13/12/2023
This revision having been heard and reserved for orders, coming on
for pronouncement this day, this court passed the following:
ORDER
This Civil Revision (filed earlier as Second Appeal) has been filed
against the judgment and decree dated 14/03/2005 passed by the Additional
District Judge Gohad, District- Bhind (M.P.) in Civil Appeal No.44/2004,
whereby the judgment and decree dated 29/09/2004 passed by the trial Court
dismissing the Civil Suit No.3-B/2002 filed by the appellant has been
upheld.
2. This Civil revision has been filed on the ground that judgment and
decree passed by both the Courts below are not sustainable in the eyes of
law. The defendant (DW-1) in para 2 of his statement categorically admitted
that he approved the bill of tour programme of Basant Suley and he
sanctioned leave of Basant Suley. He further admitted that he made posting
orders of the teachers transferred from Lahar and if the orders of such
posting are issued the same may be illegal. Hence, it is clear that defendant
was interested in making such illegal claims of such persons and plaintiff
proved his case but without going through the evidence, suit has been
dismissed. Plaintiff proved the malicious intention of defendant which was
ignored by courts below. Plaintiff exhibited 22 documents in his support. The
defendant in para 2 of his statement categorically admitted that word
NIRAST is mentioned in Ex.-P-1 but the same does not appear in its
photocopy Ex-P/1(C), therefore, there was some fabrication in the document
on part of the defendant for making defence in the case.
3. Adverse inference should have been drawn against the defendant for
not producing original T.A. bills whereas the trial Court ordered and directed
the authorities to produce the original T.A. Bill. Both the Courts below have
failed to appreciate the evidence that in compliance of the order dated
09/08/1999, the plaintiff handed over the charge on 11/08/1999, 24/08/1999
and 31/08/1999 to one Ramsiya Garg. The current cash book and bill register
were put in his possession by the defendant on 24/08/1999 and token book
was received by the defendant on 31/08/1999, receipts thereof were also on
record as Ex.P-16, 17 and 21 and the same have been admitted by the
defendant in para 5 of his statement. Hence, findings that for not handing
over the charge as per the order dated 09/08/1999, the plaintiff was subjected
to departmental action was arbitrary and totally perverse.
4. Both the Courts below gave wrong findings that plaintiff gave charge
on 13/09/1999 and the period from 26/10/1999 to 10/11/1999 but he did not
hand over the charge on said dates but Courts below failed to appreciate the
material available on record and facts remained that the plaintiff handed over
the charge on 11/08/1999, 24/08/1999 and 31/08/1999 and thereafter, from
08/09/1999 to 12/09/1999, the plaintiff remained in election duty and
proceeded on leave from 13/09/1999 and he was on leave till 26/10/1999 and
after returning from leave on 27/10/1999, the plaintiff appeared in the office
of the Block Education Officer Lahar in compliance of the suspension order
and returned from the office on 20/12/1999. It is wrong to say that the
defendant did not send the letter to the police himself but sent on the orders
of superior officers whereas the defendant himself on his own sent many
letters to the police concerned vide letters Ex.-P/3, P/6 and P/7 which are on
record. Hence, prayed for allowing this revision.
5. The question before this Court is whether judgment and decree can be
interfered by this Court in Revisional jurisdiction?
6. Heard the learned counsel for the revisioner and perused the record.
7. The provisions of second appeal have wide scope whereas civil
revision scope under Section 115 of CPC is very limited which is as under :-
" 115. Revision. [(1)] The High Court may call for the record of any
case which has been decided by any Court subordinate to such High Court
and in which no appeal lies thereto, and if such subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with
material irregularity,
the High Court may make such order in the case as it thinks fit:
[Provided that the High Court shall not, under this section, vary or
reverse any order made, or any order deciding an issue, in the course of a suit
or other proceeding, except where the order, if it had been made in favour of
the party applying for revision would have finally disposed of the suit or
other proceedings.]
[(2) The High Court shall not, under this section, vary or reverse any
decree or order against which an appeal lies either to the High Court or to
any Court subordinate thereto.
[(3) A revision shall not operate as a stay of suit or other proceeding
before the Court except where such suit or other proceeding is stayed by the
High Court.]
[Explanation--.In this section, the expression "any case which has been
decided" includes any order made, or any order deciding an issue in the
course of a suit or other proceeding.]"
8. Therefore, in light of provision of revision under Section 115 of CPC
perused the record and on perusal of statement of Kamlesh Babu who has
exhibited documents P/1 (Tour Programme), P/2 (Transfer Order) and P/19,
(Order of M.P. Administrative Tribunal), admitted in para 2 that in Ex.P/1
"Nirast" word is written, therefore, this admission goes agaisnt the plaintiff.
In any case, he admits on this document Ex.P/2 that it has not been signed by
the defendant- Harbhuwan Singh Tomar, Block Edcucation Officer. He
further admitted that Ex.P/5 charge sheet was given by Chief Executive
Officer, Jila Panchayat, Bhind (M.P.). He further admitted that on last pay
certificate Ex.P/9, there is no signature and seal of defendant, therefore, from
the evidence of the plaintiff- Kamlesh Babu, it is clear that he has not joined
all necessary parties in the suit and joined that person who had not signed
and sealed on the relevant documents.
9. On the contrary to the evidence of plaintiff, defandant-Harbhuwan
Singh Tomar in his cross-examination admitted that on tour programme
Ex.P/1, there are his signature but later on when he came to know it was
wrongly made, he cancelled tour programme, therefore, conduct of the
defendant is verified. He has not made any categorical admission on which
decree can be granted to the plaintiff, therefore, allegations in the suit are not
borne out regarding official proceedings, therefore, in facts and
circumstances of the case in which there was dispute of non-handing over
the charge by the plaintiff and subsequently, handing over the charge,
defendant has admitted in para 12 that he ordered Kamlesh Babu to hand
over the charge but he did not specify any reason but this is not a ground on
which suit can be decreed. A senior Officer is always vested with the power
to supervise his subordinate so that work is efficiently carried out in the
possible way. In Para 10, defendant has further stated that during election
time he was not having power to approve medical leave and therefore, he
directed the plaintiff to send the application to the medical board alongwith
his certificate and then to approach the Collector/District Election Officer,
District- Bhind (M.P.). In fact, on being asked, he further admitted that ;g
lgh gS fd eSaus bl i= esa ;g Hkh fy[kk Fkk fd mDr izek.ki= lfgr vkosnu is'k gksus ij
vodk'k Lohd`r dh vuq'kalk gsrq fHk.M Hkstk tk;sA , therefore, it shows that defendant
did not carry a personal and official vendetta against the plaintiff. It is to be
noted that Ex.P/19 order dated 14/12/1999 of M.P. Administrative Tribunal,
Gwalior by which his suspension has been quashed or Ex.P/20 order dated
14/09/2001 by which his Criminal Revision has been allowed are not
definate indicators that whole exercise of department was to harass the
plaintiff because Ex.P/19 order was passed but due to lack of jurisdiction, so
chargesheet against the plaintiff by CEO of District Panchayat by Ex.P/5 was
not vaild and Ex.P/20 order was passed in the light of legal principle that
prosecution has to prove the case beyond reasonable doubt to which
department has not produced sufficient documentary evidence regarding
non-handing of charge etc. Regarding suspension it can be seen from Ex.P/5
that it is signed by Senior Officer, CEO, District Panchayat, Bhind also,
therefore, it is not a case where defendant acted unilaterally. Regarding non-
filing of document by defendant is seen that they were filed and taken on
record by order dated 20/08/2004. Since, initially this case was filed as
Second appeal so grounds of appeal have been mentioned and there is no
ground of revision in light of provision of Section 115 of CPC but even for
the sake of argument assuming that there are grounds for revision, this Court
is of the considered view that; (a) it is not a case where both courts below
have exercised a jurisdiction not vested in it by law, or
(b) or have failed to exercise a jurisdiction so vested, or
(c) have acted in the exercise of its jurisdiction illegally or with
material irregularity.
10. Accordingly, this revision fails and is hereby dismissed.
11. Let a copy of this order be sent to the concerned Court alongwith the
record of the case.
(AVANINDRA KUMAR SINGH)
JUDGE
(13/12/2023)
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH
RAHUL SINGH
rahul
GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH
GWALIOR,
2.5.4.20=eac942476567cd1b39b3da46068403462fdf82ab67
6d0cde4dee473fe77953f5, postalCode=474001, st=Madhya
PARIHAR
Pradesh,
serialNumber=0275C4F803F94C47998BE5C534E21BDED910
FD4AB9D159B55575E814D05B2EED, cn=RAHUL SINGH
PARIHAR
Date: 2023.12.15 15:49:41 +05'30'
