R S R T C Jaipur And Ors vs Udai Singh Kumawat
2022 Latest Caselaw 2450 Raj/2

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

               S.B. Civil Second Appeal No. 565/1999

1.       Rajasthan State Road Transport Corporation Through Its
         Managing Director, Parivahan Marg, Chomu House, Jaipur
2.       Regional Manager, Rajasthan                   State      Road    Transport
         Corporation, Udaipur
3.       General Manager Traffic, RSRTC, Jaipur
                                                                    ----Appellants
                                       Versus
Udai Singh Kumawat S/o Shri Jabbar Singh Ex-Conductor,
R.S.R.T.C., Udaipur
                                                                   ----Respondent


For Appellant(s)           :     Mr. Jai Lodha
For Respondent(s)          :     None



            HON'BLE MR. JUSTICE SUDESH BANSAL

                                  Judgment

JUDGMENT RESERVED ON                                         : 15/03/2022
JUDGMENT PRONOUNCED ON                                       : March 22nd, 2022
BY THE COURT:

1. Appellant-defendant Rajasthan State Road Transport

Corporation (hereinafter referred as "RSRTC") has preferred this

second appeal under Section 100 CPC, assailing judgment and

decree dated 7.7.1999 in Appeal No.271/1996 passed by

Additional District Judge, No.8, Jaipur City, Jaipur affirming the

judgment and decree dated 5.4.1991 passed by Munsif and

Judicial Magistrate No.3, Jaipur City, in Civil Suit No.842/1987

whereby while termination order of respondent plaintiff

(hereinafter "plaintiff") was declared as illegal, void and violative

to principles of natural justice, he has also been declared entitle

for back wages and monetary benefits from date of termination

i.e. 21.07.1983.

(2 of 6) [CSA-565/1999]

2. The facts of case are that plaintiff was appointed on the post

of Conductor, after following regular mode of recruitment process

but later on his services were terminated by defendant RSRTC

vide order dated 21.07.1983 during his probation period. The

termination was made on account of remarks against plaintiff that

he was carrying nine passengers and 240 Kg luggage without

tickets. Plaintiff preferred an appeal against termination order to

Appellate Authority who dismissed the appeal on 28.7.1984.

Plaintiff filed a civil suit for declaration, challenging termination

order dated 21.07.1983 as also order of Appellate Authority dated

28.7.1984, alleging inter alia that his termination is stigmatic and

he has been terminated from service without conducting any

proper enquiry as also without giving any opportunity of hearing

on alleged charges of carrying passengers and luggage without

tickets. Plaintiff prayed for declaring termination order and order

of Appellate Authority as illegal and void and claimed for his

reinstatement with all consequential benefits and monetary

benefits.

3. The RSRTC failed to file written statement despite several

opportunities. However, opposed the suit of plaintiff claiming that

plaintiff was a probationer and no enquiry was required to be

conducted before removal of plaintiff. Other objections as to the

Civil Court does not have jurisdiction, were also raised.

4. The trial Court recorded evidence of both parties. Plaintiff

appeared as witness and produced documents to prove that his

termination was made illegally. He stated that his termination is

stigmatic and was passed without conducting enquiry and without

giving any opportunity of hearing, therefore, termination is ex

(3 of 6) [CSA-565/1999]

facie illegal and in violation to principles of natural justice. In

rebuttal RSRTC examined Dw.1 Umesh Chand Bhatt.

5. The trial Court after appreciation of evidence on record

concluded that the termination of plaintiff from service is not

simpliciter, but because of stigmatic remark. It was found that on

29.6.1983, while plaintiff was on duty as Conductor, the bus was

inspected and during inspection stigmatic remarks were made, on

the basis of which the plaintiff's services were terminated. The

plea of RSRTC that it is not a case of removal of plaintiff from

service, but is a simple case of non confirmation of plaintiff due to

his non satisfactory service during probation period, was not found

valid. The Trial Court relied upon that the clause 13 of the

Standing Orders of RSRTC, regarding removal of probationer

without enquiry has been held as ultra vires by Full Bench of this

High Court in case of Bhanwar Lal Vs. RSRTC [1984 RLR 619].

Thus, the trial Court observed that since termination of plaintiff is

stigmatic and no enquiry was conducted, no opportunity of

hearing was provided, no principle of natural justice was followed,

thus, impugned termination order is illegal and void. Accordingly,

the trial Court allowed plaintiff's suit declaring the termination

order and order of Appellate Authority as illegal and void. The trial

Court directed to give monetary benefits to plaintiff from the date

of his termination.

6. Defendants preferred first appeal against judgment and

decree of trial Court dated 5.4.1991, which was decided by

Appellate Court vide judgment dated 7.7.1999 and upheld the

judgment passed by the trial court. Hence, the RSRTC is in second

appeal.

(4 of 6) [CSA-565/1999]

7. Learned counsel for appellant-defendant has argued that

plaintiff was not a permanent employee, but was a probationer,

therefore, no enquiry was necessary before his termination. He

has argued that Civil court has no jurisdiction to hear the suit.

8. This court on 12-7-2006 framed the substantial question of

law "Whether, the Civil Court has jurisdiction to entertain the suit

filed by the respondent/ plaintiff?".

9. Heard learned counsel for defendant and perused impugned

judgment passed by the trial court as affirmed by the first

appellate court, as also record of the case.

10. As far as nature of termination as simpliciter or stigmatic is

concerned, both Courts have concurrently held on the strength of

oral or documentary evidence that the termination was stigmatic.

The services of regular appointed employee, though on probation,

cannot be terminated without enquiry and without providing an

opportunity of hearing and explain the charges against him. The

fact finding of two courts below are based on appreciation of

evidence and no illegality or perversity has been pointed out in

such fact findings, so as to give rise any question of law much less

substantial question of law.

11. As far as the question of law that civil court has jurisdiction

to entertain the suit is concerned, such issue has been considered

and decided by the Apex Court in Rajasthan State Road

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

299] and it has been held that where no enquiry has been

conducted, there would be violation statutory Regulations as also

right of equality as contained in Article 14 of the Constitution of

India. In such a situation a civil suit will be maintainable for the

(5 of 6) [CSA-565/1999]

purpose of declaration that termination of service was illegal and

consequences flowing therefrom. Therefore, the question of law

relating to maintainability of suit is answered in negative.

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

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

Dagadun 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.

13. Similarly the question of law relating to entitlement of

plaintiff for backwages from the date of his termination is also

valid in view of the judgment of the Apex Court in case of Bal

Mukund Bairwa (supra). In the opinion of this court, both

courts have not committed any illegality or jurisdictional error in

awarding backwages to plaintiff from the date of his termination

order and decreeing plaintiff's suit as a whole. Thus, this question

of law is also answered in negative.

14. 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.

(6 of 6) [CSA-565/1999]

15. In the present case substantial questions of law as framed

have been considered and this court is of the opinion that all 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.

16. Any other pending application(s), if any, also stand(s)

disposed of.

17. Record of courts below be sent back forthwith.

(SUDESH BANSAL),J

Arn/82

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