State Of Rajasthan Thr District ... vs Mahesh Chand Sharma S/O Jamuna ...
2022 Latest Caselaw 2799 Raj/2

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

               S.B. Civil Second Appeal No. 394/2018

1.       State of Rajasthan through District Collector Bharatpur,
         Bharatpur Rajasthan.
2.       Zila Parishad Bharatpur, through Chief Executive Officer,
         Zila Parishad Bharatpur Rajasthan.
3.       Panchayat Samiti Kumher, through Development Officer,
         Panchayat Samiti Kumher District Bharatpur Raj.
                                                                  ----Appellants
                                      Versus
Mahesh Chand Sharma S/o Jamuna Prasad Sharma, R/o Abar
Tehsil Kumher District Bharatpur Raj.
                                                                 ----Respondent


For Appellant(s)          :     Mr. Pradeep Kalwania, GC
For Respondent(s)         :     Mr. Manoj Kumar Bhardwaj
                                Mr. Rajesh Chaturvedi



            HON'BLE MR. JUSTICE SUDESH BANSAL

                                 Judgment

JUDGMENT RESERVED ON                                  : 22/03/2022
JUDGMENT PRONOUNCED ON                                : April _1st, 2022
BY THE COURT:

1. Appellants-defendants State of Rajasthan through District

Collector Bharatpur (hereinafter referred as "State") has preferred

this second appeal under Section 100 CPC, assailing judgment and

decree dated 8-5-2018 in appeal No.66/2010, passed by

Additional District Judge, No.1, Bharatpur allowing appeal and

setting aside the judgment and decree dated 5-7-2010 passed by

Additional Civil Judge (Senior Division) No.3, Bharatpur, in Civil

Suit No.91/2002, the termination order dated 1-12-1992 has been

declared null and void and plaintiff has been held entitled for

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reinstatement in service with a direction to release all

consequential benefits after conducting enquiry. Simultaneously,

right to initiate fresh enquiry was given to the department.

2. Facts of the case are that respondent-plaintiff (hereinafter

`the plaintiff') having acquired qualification of Graduation in the

year 1981 and passing B.Ed. Course from Dayanand Subhash

National College, Unnao (UP) in 1986-87 affiliated to Kanpur

University, was appointed on the post of Teacher Grade-III on 10-

4-1990 in Panchayat Samiti Kumer, Zila Parishad Bharatpur, and

on 12-10-1992, the petitioner was confirmed on the post. After

the appointment and confirmation of plaintiff, appellant State

sought verification of respondent-plaintiff's certificates. On

verification of certificate of B.Ed. Course from the University, the

concerned University vide letter dated 19-11-1992 informed

respondents that the plaintiff did not pass B.Ed. Examination. On

the basis of letter dated 19-11-1992, appellant State immediately

terminated services of plaintiff vide order dated 1-12-1992. Again

on approaching the University, vide subsequent letter dated 21-

12-1992 it was informed by the University that the letter dated

19-11-1992 was wrongly sent and that the plaintiff had validly

passed B.Ed. Course. However, pursuant to previous letter dated

19-11-1992, services of the plaintiff were remained terminated.

The termination order dated 1-12-1992 was challenged by the

plaintiff by filing writ petition No.1055/1993, which came to be

dismissed vide order dated 5-10-1993 on ground of availing the

alternative remedy before civil court. Thereafter, the plaintiff filed

civil suit challenging his termination order dated 1-12-1992 that

his termination has been made on the basis of wrong information,

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against the principles of natural justice and he prayed for quashing

the same and for reinstatement with all consequential benefits and

arrears of salary due. It was stated by the plaintiff that vide order

dated 1-12-1992 the plaintiff was informed that his B.Ed.

Certificate was alleged to be forged by the University, therefore,

his services were terminated with immediate effect and without

providing any opportunity of hearing. When plaintiff approached

the Kanpur University, the plaintiff was informed vide letter dated

21-12-1992 that letter dated 19-11-1992 was wrongly issued.

Simultaneously, for the same dispute, one FIR No.33/1993 was

lodged at Police Station Kumher. On enquiry by the Investigating

Officer, Kanpur University informed vide letter dated 25-6-1993

that plaintiff had validly passed B.Ed. Course and the letter 21-12-

1992 was correct. It was stated that plaintiff's services were

terminated against principles of natural justice. It was also

pleaded in plaint that principle of estoppel applied against

defendant No.3 the Block Development Officer, Panchayat Samiti

Kumher, since it had enquired about the marksheet and degree of

plaintiff for B.Ed. prior to appointment of the plaintiff and later on

he had been confirmed also.

3. The appellants defendants filed written statement denying

contentions of plaintiff. The trial Court settled issues and recorded

evidence of both parties. Plaintiff appeared as witness and

produced documents Exhibit-1 to 24. Defendants examined one

witness Dw.1 Brijlal and exhibited documents Ex.A-1 to A-3.

Considering evidence of both parties the trial court dismissed

plaintiff's suit.

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4. On filing appeal, the first appellate court re-appreciated oral

and documentary evidence of both parties and reversed findings

of the trial court, having concluded that plaintiff had validly passed

B.Ed. course from the University. The first appellate court apart

from other evidence, relied upon letters issued by the concerned

University first letter dated 21-12-1992, and second letter dated

25-6-1993, which was given to the Investigating Officer, and it

was observed that the veracity of certificates of B.Ed. course was

also checked by defendant No.3 prior to appointing the plaintiff on

the post of Teacher. The first appellate court concluded that the

plaintiff's services were confirmed on 12-10-1992, however, he

was terminated on 1-12-1992 without providing any opportunity

of hearing. Consequently, the first appellate court decreed the

plaintiff's suit by setting aside the judgment of trial court dated 5-

7-2010 and declaring the termination order dated 1-12-1992 as

null and void. Arrears of salary were also directed to be paid.

Hence, defendants have preferred this second appeal.

5. This court on 27-5-2019 issued show cause notice as to why

appeal should not be admitted on substantial questions of law,

propounded by appellant State in its memo of appeal, which are

as under:-

a) Whether finding of the impugned judgment and Decree of the Appellate court suffers from gross misreading of evidence of plaintiff as well as defendants?

b) Whether findings of the First Appellate Court with regard to issue No.1,2 and 3 are perverse in the eye of law?

c) Whether in the facts and circumstances of the present case appellate court has rightly reversed the judgment

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and decree of the trial court by exercising its appellate jurisdiction?

d) Whether the judgment and decree passed by the Appellate Court while decreeing the suit is bad in law?

e) Whether Appellate Court has misinterpreted misread the evidence available on record while reversing the fact finding given by the trial court?

f) Whether the Appellate Couirt is justified in granting the relief beyond the pleadings, relief, and scope of the plaint?

g) Whether the plaintiff is entitled to get decree of declaration of his removal as illegal whereas from his own admission and other overwhelming evidence it is proved that Degree of the B.Ed. Obtained by the plaintiff is forged and on the basis of forged decree the plaintiff is not entitled for appointment?

h) Whether a decree for declaration can be granted specifically when the averments of the plaint stands not proved?

i) Whether the decree for declaration can be granted specifically when the plaintiff's case pleaded in the plaint is found to be untrue?

j) Whether the decree of declaration granted by the first appellate court is vitiated being contrary to evidence available on record?

6. After service of notices, respondent plaintiff has put in

appearance. The second appeal has not been admitted and heard

for admission.

7. Heard learned counsel for parties and perused impugned

judgment passed by the first appellate court, record of the case,

written submissions filed by plaintiff as also by defendants.

8. Counsel for appellant State has argued that in fact the

plaintiff was given appointment subject to verification of

documents submitted by him. After his appointment on 10-4-1990

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and confirmation on 12-10-1992, when the State received letter

dated 19-11-1992 from the Kanpur University that plaintiff did not

pass B.Ed. Examination from that University, the plaintiff was

removed from service immediately vide order dated 1-12-1992.

he argued that plaintiff failed to produce sufficient evidence to

prove his marksheet and degree of B.Ed. as genuine and valid. He

submitted that the first appellate court committed jurisdictional

error in upsetting findings of trial court and holding that

marksheet and degree of B.Ed. of plaintiff are valid. The reversal

findings of appellate court suffers from misreading/ non-reading of

evidence. Counsel for State has also argued that civil suit filed by

plaintiff is barred by limitation as per Section 109 of the Rajasthan

Panchayati Raj Act, 1994. he submitted that services of plaintiff

were terminated on 1-12-1992. The first appellate court vide

judgment dated 8-5-2018, set aside the termination order dated

1-12-1992, thereafter, the plaintiff has attained the age of

superannuation on 30-11-2020, therefore, now it is not possible to

reinstate the plaintiff in service. He submitted that allowing back

wages to plaintiff for the period, during which he did not render

any service, is bad in law. Counsel for appellant State prayed to

admit the appeal for hearing by formulating substantial question

of law as suggested in memo of appeal and by allowing second

appeal the judgment of first appellate court dated 8-5-2018 be

quashed and set aside.

9. Per contra, counsel for respondent plaintiff submitted that

the plaintiff was a confirmed employee and was working under the

Rajasthan Panchayati Raj department. Before termination, neither

any notice was issued nor any enquiry was conducted nor any

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opportunity of hearing was accorded, thus, the order of

termination dated 1-12-1992 is bad in law being contrary to

principles of natural justice. He submitted that as per Rule 300 of

the Rajasthan Panchayati Raj Rules, 1996, Rajasthan Civil Services

(Classification, Control and Appeals) Rules, 1958 have been made

applicable on employees of Panchayati Raj department. Since

penalty of removal from service is a major penalty, the

termination order of plaintiff, without following the procedure

prescribed under the CCA Rules, cannot be countenanced and

upheld. Counsel for respondent plaintiff submitted that the first

appellate court re-appreciated evidence available on record while

upsetting findings of the trial court and recorded valid reasons in

the judgment to quash the termination order. The judgment of the

first appellate court is well reasoned, based on evidence and

within its jurisdiction. He submitted that as per Article 58 of the

Limitation Act, civil suit for declaration assailing termination order

was filed within a period of three years, which is well within

limitation. Section 109 of the Rajasthan Panchayati Raj Act, 1994

has no application to the present case. He submitted that it is true

that now the plaintiff has attained the age of superannuation and

his reinstatement is not possible, however, since his termination

from service was arbitrary, illegal and violative of principles of

natural justice, therefore, the first appellate court has not

committed any illegality in setting aside the same. He submitted

that no substantial question of law, as suggested in memo of

appeal, are based on reappreciation of evidence, which is not

permissible within the scope of Section 100 CPC and none of the

questions of law is in the nature of substantial question of law, as

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such the second appeal deserves to be dismissed at this stage

itself.

10. Having heard counsel for both parties and on perusal of

judgments of both courts below, this court finds that this second

appeal is not worth for admission as there is no involvement of

any substantial question of law, for following reasons:

11. As per factual matrix and record of the present case, it is not

in dispute that plaintiff was appointed on the post of Teacher

Grade-III vide order dated 10-4-1990 (Ex.8), thereafter his

services were confirmed vide order dated 12-10-1992 (Ex.24) and

plaintiff's services were terminated vide order dated 1-12-1992

(Ex.11), but before termination of services of plaintiff, neither any

show cause notice was issued, nor any enquiry was conducted,

nor any opportunity of hearing was provided to plaintiff. Thus, the

first appellate court found the termination order to be in violation

of principles of natural justice. That apart, termination of services

of plaintiff is a major penalty, at least an enquiry according to the

procedure prescribed in CCA Rules was warranted. Plaintiff's case

finds support by the judgment of the Apex court in Deepali

Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya

[(2013)10 SC 324], which has been relied upon by plaintiff,

wherein the Apex Court in para No.38.5 held that "cases in which

the competent court or Tribunal finds that the employer has acted

in gross violation of the statutory provisions and/ or principles of

natural justice or is guilty of victimizing the employee or workman,

then the concerned court or Tribunal will be fully justified in

directing payment of full back wages. In such cases, the superior

(9 of 14) [CSA-394/2018]

courts should not exercise power under Article 226 or 136 of the

Constitution and interfere with the award passed by the Labour

Court etc., merely because there is a possibility of forming a

different opinion on the entitlement of the employee/ workman to

get full back wages or the employer's obligation to pay the same.

The courts must always be kept in view that in cases of wrongful/

illegal termination of service, the wrongdoer is the employer and

sufferer is the employee/ workman and there is no justification to

give premium to the employer of his wrongdoings by relieving him

of the burden to pay the employee/ workman his dues in the form

of full back wages"

12. In case of Avtar Singh Vs. Union of India [(2016)8 SCC

471], the Apex Court in para No.38.9 held that "In case the

employee is confirmed in service, holding departmental enquiry

would be necessary before passing order of termination/ removal

or dismissal on the ground of suppression or submitting false

information in verification form".

13. This court in case of Nand Kishore Acharya Vs. Vikas

Adhikari [2003 WLC (UC) 99] set aside the termination order

passed against the delinquent for having a forged degree on the

ground that termination order of employee passed without

providing an opportunity of hearing would be illegal.

14. Thus, this court of the considered opinion that the first

appellate court has not committed any illegality or jurisdictional

error in quashing the termination order of plaintiff finding the

same to be violative of principles of natural justice.

(10 of 14) [CSA-394/2018]

15. Having considered the appeal on the issue of appreciation of

evidence by appellate court and reversing findings of trial court

whether the first appellate court has misread evidence led by

parties. It appears from perusal of impugned judgment dated 8-5-

2018 that the first appellate court exercised its powers under

Order 41 Rule 31 CPC and re-heard/ re-appreciated entire

material available on record. The first appellate court in its

judgment, more particularly in paras No.12 and 13, re-appreciated

evidence and concluded that marksheet and degree of B.Ed.

procured by plaintiff from Kanpur University are genuine and valid.

The first appellate court has assigned reasons to set aside findings

of the trial court. The trial court extended undue advantage to

letter dated 24-6-1993 (Ex.A1), whereas, the first appellate court

considered other documents also viz. Letter dated 21-12-1992

(Ex.10), subsequent letter dated 25-6-1993 (Ex.18), B.Ed.

marksheet and provisional certificate of B. Ed. (Ex.5 and 6), as

well as investigation conducted by police and information received

from Kanpur University, then concluded that marksheet and B.Ed.

degree of plaintiff may not be treated to be forged, merely on the

basis of a letter dated 19-11-1992 issued by Chief Executive

Officer of University, more particularly, when the said officer has

not come in witness box to verify and substantiate his letter.

Further, the same person has issued subsequent letter dated 25-

6-1993 to Investigating Officer acknowledging marksheet and

B.Ed. degree as valid and genuine. Reasons recorded by the first

appellate court may be perused in paras NO.12 & 13 of the

judgment. Although, counsel for appellant State has made a

persuasive attempt to argue that findings recorded by the first

(11 of 14) [CSA-394/2018]

appellate court are perverse, but on appreciation of such findings

with evidence available on record, this court does not find any

perversity in the same. It cannot be said that findings recorded by

the first appellate court are suffering from misreading/ non-

reading of evidence. Otherwise also, the first appellate court is the

final court of fact findings, and unless findings are find to be

perverse, it is not required for this court, while exercising powers

under Section 10 CPC, to re-appreciate the evidence to have a

different findings/ conclusion of his own. Second appellate court

should honour findings of fact based on due appreciation of

evidence as recorded by the court below.

16. As far as the judgment passed by first appellate court

reversing the judgment of trial court is concerned, the first

appellate court has not committed any illegality in passing

the impugned judgment while reversing the judgment of the

trial court. In the case of Arumugham Vs. Sundarambal

[JT 1994 (4) SC 464] the Hon'ble Apex Court has held that

the first appellate court is entitled to consider the evidence

adduced by parties and give its own reasons for accepting

that of on one side or the other, and that it is not permissible

for the second appellate court to interfere with such findings

of facts by the first appellate court.

17. As far as the issue of limitation is concerned, firstly the trial

court found the suit for declaration to be within limitation and

decided the issue No.5 in favour of plaintiff. Appellant State in first

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appeal did not assail findings of issue No.5 relating to limitation.

However, counsel for appellant State has raised argument during

course of arguments on second appeal. This court finds that

initially the plaintiff assailed termination order dated 1-12-1992,

by filing SBCWP No.1055/1993, which was dismissed on 5-10-

1993 on the ground of availability of alternative remedy to

challenge termination order before the Civil Court. Thereafter, the

plaintiff served legal notice on 13-1-1994, as required under

Section 80 CPC, and then filed the civil suit on 19-5-1994. As per

Article 58 of the Limitation Act, the limitation for suit for

declaration is three years. Thus, the plaintiff's suit is well within

limitation of three years assailing termination order dated 1-12-

1992, by way of civil suit filed on 19-5-1994. The limitation as

provided under Section 109 of the Rajasthan Panchayati Raj Act,

1994, does not apply to the present case. Otherwise also, in the

present case, the issue of limitation appears to be mixed question

of facts and law. Once the trial court has concluded the issue of

limitation in favour of plaintiff, which remained unchallenged

before the first appellate court, such issue is not open to be

challenged at the stage of second appeal. Thus, the argument of

counsel for appellant State that suit should have been dismissed

being barred by limitation, this court is not impressed by such

argument of counsel for appellant State.

18. As far as the issue of grant of back wages is concerned, the

first appellate court has assigned valid reasons to set aside the

termination order. Once the order of termination has been found

illegal and in violation of principles of natural justice, in the factual

(13 of 14) [CSA-394/2018]

scenario that plaintiff was a confirmed employee of the State, the

first appellate court has not committed any illegality or

jurisdictional error in holding the plaintiff entitled for back wages

from the date of termination. The issue of grant of back wages has

been dealt with by the Apex Court in Rajasthan State Road

Transport Corporation Vs. Bal Mukund Bairwa [(2009)4 SCC

299] and case of Deepali Gundu Surwase Vs. Kranti Junior

Adhyapak Mahavidhyalaya (supra). The ratio as propounded

in aforesaid cases is squarely applicable to the present case. Thus,

in the opinion of this court, the first appellate court has not

committed any illegality or jurisdictional error in awarding

backwages to plaintiff from the date of his termination and

decreeing his suit as a whole. Thus, this question of law is

answered in negative.

19. There is no substance in question of law as raised by

defendants. The Hon'ble Apex Court has held in case of Kondiba

Dagadu Kadam Vs. Savitribai Sopan Gujar [(1999)3 SCC

722] that question of law which has already been decided by a

larger Bench of the High Court concerned, or by the Privy Council,

or by the Federal Court or by the Supreme Court, mere wrong

application on facts of a particular case does not create another

substantial question of law. In such view of the matter there is no

substantial question of law in instant matter.

20. In case of Umerkhan Vs. Bismillabi [(2011)9 SCC 684]

Hon'ble Supreme Court has propounded that if a second appeal is

admitted on substantial question of law, while hearing second

(14 of 14) [CSA-394/2018]

appeal finally, can re-frame substantial question of law or can

frame substantial question of law afresh or even can hold that no

substantial question of law involved, but the High Court cannot

exercise its jurisdiction of Section 100 CPC without formulating

substantial question of law.

21. In the present case substantial questions of law as proposed

in memo of appeal have been considered and this court is of the

opinion that all questions of law raised are essentially either

question of facts or have already been settled by way of judicial

precedents. Thus, in this second appeal, no substantial question of

law involved. Accordingly, the second appeal is not liable to

succeed. Consequently, the same is hereby dismissed.

22. Stay application and any other pending application(s), if any,

also stand(s) disposed of.

23. Record of courts below be sent back forthwith.

(SUDESH BANSAL),J

Arn/71

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