R S R T C And Ors vs Omprakash
2022 Latest Caselaw 2015 Raj/2

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

                S.B. Civil Second Appeal No. 278/2003

1. Rajasthan State Road Transport Corporation, jaipur through
General Manager-cum-Managing Director, Jaipur
2. Divisional Manager, Rajasthan State Road Transport
Corporation, Kota.
3. General Manager (Traffic) Rajasthan State Road Transport
Corporation, Jaipur
4. President, Rajasthan State Road Transport Corporation, Jaipur
                                                       ----Appellant/Defendants
                                       Versus
Omprakash Sharma S/o Shri Mool Chand Sharma, Ex-Conductor,
Rajasthan State Road Transport Corporation, Kota Aagar, at
present resident of through Mangal Chand Soni, Baseda Gali,
Patanpol, Kota, District Kota.
                                                         ----Respondent/Plaintiff

For Appellant(s) : Mr. Alok Chaturvedi with Mr. Shailendra Sharma For Respondent(s) : Mr. Babu Lal Gupta with Mr. Ankul Gupta

HON'BLE MR. JUSTICE SUDESH BANSAL

Order

07/03/2022 The appellants- defendants-RSRTC (hereafter `the RSRTC')

have preferred this second appeal assailing the judgment and

decree dated 10.12.2002 passed by the Additional District Judge

No.4, Jaipur City, Jaipur in civil first appeal No. (289/95) 48/2002

whereby and whereunder, the appellate court while reversing the

judgment and decree dated 08.03.1995 passed by the Additional

Civil Judge (Jr. Division), Jaipur City, Jaipur in civil suit

No.1731/1995 has allowed the first appeal and the respondent's

suit has partially been decreed.

(2 of 7) [CSA-278/2003]

Facts as culled out from the record are that respondent-

plaintiff (hereafter `the plaintiff') filed a suit for declaration

against the order of his termination from service dated 1-10-1982,

appellate order dated 1-2-1984 and review order dated 4-2-1986

on the ground that allegations levelled against plaintiff were false,

charge sheet was issued without seeking any explanation, copies

of documents were not provided, during course of enquiry

evidence of witnesses was not recorded in presence of plaintiff nor

opportunity of cross examining them was provided, as such

enquiry was conducted against the provisions of Section 35 of

Standing Orders and vitiates on account of violation of principles

of natural justice. Similarly copy of enquiry report was not

provided nor plaintiff was heard on quantum of punishment.

Appellate Authority and Review Authority did not provide any

opportunity of hearing to plaintiff.

Defendant RSRTC did not file written statement. Plaintiff

examined himself as Pw.1. In rebuttal RSRTC prodcued one

witness as Dw.1, however, he did not turn up for cross

examination, therefore, his evidence was not taken on record. The

trial court considered the plaintiff's case on merits and found the

impugned termination order of termination and subsequent orders

of Appellate Authority and Reviewing Authority are against

principles of natural justice. However, the suit was dismissed on

the ground of limitation only. The trial court calculated the

limitation from the first order of termination dated 1-10-1982

instead of counting the limitation from the final order of Reviewing

Authority dated 4-2-1986.

(3 of 7) [CSA-278/2003]

On filing first appeal, the appellate court placed reliance

upon judgment in case of Ram Ratan Sharma Vs. R.S.R.T.C.,

in S.B. CSA No.245/1996 decided on 1-3-1997. As per

proposition of law propounded therein, limitation for suit for

declaration was counted from the last order dated 4-2-1986

passed by Reviewing Authority affirming termination order dated

1-10-1982, the first appellate court reversed findings of trial court

on the issue of limitation. Since the trial court has already passed

findings on merits in favour of plaintiff holding that termination

order and subsequent orders passed by Appellate and Reviewing

Authorities are against principles of natural justice and such

findings were never challenged by defendant RSRTC, accordingly

the first appellate court decreed the plaintiff's suit vide its

judgment dated 10-12-2002 and impugned order of termination

dated 1-10-1982 and subsequent orders dated 1-2-1984 and 4-2-

1986 passed by Appellate and Reviewing Authorities were declared

null and void being violative of principles of natural justice.

Plaintiff was also held entitled for reinstatement with all

consequential benefits from the date of his termination. Hence,

this second appeal.

This court vide order dated 3-1-2006 framed following

substantial question of law:-

i. Whether finding of the learned Appellate court cannot be

sustained in the eye of law reversing the findings of the

learned trial court without meeting with the reasonings

assigned by the learned trial court?

(4 of 7) [CSA-278/2003]

ii. Whether the period of limitation in a suit for declaration

could be counted from the date the review petition was

rejected against the order of termination/ appellate order

when there was no provision under the Standing Orders for

filing the review?

iii. Whether the learned Appellate Court could have set

aside the order of termination/ appellate order when the

suit ws rejected by the learned trial court filed on the

ground of limitation only?

iv. Whether the learned Appellate court should have

remanded the matter for decision on merits as to legality

and validity of termination order when the judgment and

decree of the trial court dismissing the suit on the ground

of limitation were reversed?

v. Whether it was incumbent upon the learned Appellate

court to have given liberty to the Disciplinary Authority to

continue with the departmental enquiry from the stage

when it was found to be invalid by it on ground of violation

of principles of natural justice/ statutory provisions.

vi. Whether the learned Appellate court could have directed

for payment of full back wages where the termination order

was set aside being violative of principles of natural justice/

statutory provisions.

Heard learned counsel for parties and perused impugned

judgments passed by courts below.

(5 of 7) [CSA-278/2003]

The issue of limitation as to whether it should be counted

from the date of termination order or from the last order of

Reviewing Authority has been decided by coordinate bench of this

court in Ram Ratan Sharma Vs. R.S.R.T.C. in S.B. CSA

No.245/1996 decided on 1-3-1997, which has been followed

in subsequent case of Mali Ram Banjara Vs. Rajasthan State

Road Transport Corporation, in S.B. CSA No.204/1999

decided on 19.03.2013. In view of proposition of law laid down

therein it is no more res integra that limitation can be and should

be counted from the last order, including orders of Appellate and

Reviewing Authorities. Therefore, the question of law relating to

limitation is answered in negative in view of aforesaid two

judgments.

As far as the question of law that first appellate court should

have remanded the matter for decision on merits to trial court is

concerned, the same does not arise at all in the present case. A

perusal of the judgment of the trial court indicates that the trial

court considered the plaintiff's case on merits and recorded

findings that termination orders and subsequent orders passed by

Appellate and Reviewing Authorities are violative of principles of

natural justice. Such findings were never challenged by RSRTC.

The trial court dismissed the suit only on the ground of limitation.

When the first appellate court reversed findings on issue of

limitation, as a nature of corollary placed reliance upon findings of

the trial court on merits and plaintiff's suit was decreed. The

question of remanding the suit for consideration on merits does

(6 of 7) [CSA-278/2003]

not arise in such a situation. Thus, this question of law is also

answered in negative.

As far as question of law as to first appellate court should

have given liberty to the Disciplinary Authority to conduct

departmental enquiry from the stage when it was found to be

invalid on the ground of violation of principles of natural justice is

concerned, in facts and circumstances of the case where the

termination order was passed way back on 1-10-1982 and RSRTC

never made such prayer before the first appellate court, the

appellate court has not committed any illegality or jurisdictional

error in not remanding the matter to the Disciplinary Authority. It

depends on facts and circumstances of each case. In the present

case such substantial question of law does not arise. Accordingly,

the same is answered in negative.

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

committed any illegality or jurisdictional error in awarding back

wages to plaintiff from the date of his termination order dated 1-

10-1982 and decreeing plaintiff's suit as a whole. 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 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.

(7 of 7) [CSA-278/2003]

In the present case substantial question of law as framed

have been considered and this court is of the opinion that no

substantial question of law as framed does fall within the scope of

100 CPC. It is a case where no substantial question of law

involved as there is no perversity or material irregularity/ infirmity

in the judgment passed by the first appellate court. Accordingly,

the second appeal is not liable to succeed. Consequently, the same

is hereby dismissed.

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

also stand(s) disposed of.

Record of courts below be sent back forthwith.

(SUDESH BANSAL),J

TN/74

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