caselaws
Supreme Court of India
Ragini & Anr vs State Of Karnataka & Ors on 13 April, 2015Bench: Dipak Misra, Prafulla C. Pant
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3563 OF 2015
(Arising out of S.L.P. (C) No. 5900 of 2014)
The Gujarat Maritime Board … Appellant
Versus
G.C. Pandya …Respondent
J U D G M E N T
Prafulla C. Pant, J.
This appeal is directed against order dated 18.12.2013, passed by the
High Court of Gujarat in Second Appeal No. 172 of 2013 whereby said Court
has dismissed the appeal upholding the judgment and decree passed by the
first appellate court and the trial court.
We have heard learned counsel for the parties and perused the papers on
record.
Brief facts giving rise to this appeal are that respondent G.C. Pandya was
Deputy Engineer (civil) with the appellant Gujarat Maritime Board. He was
charge-sheeted for certain irregularities allegedly committed by him during
the period 1982-1984, due to which the appellant suffered huge losses. In
said enquiry the plaintiff/respondent G.C. Pandya was held guilty and
awarded punishment of “censure” on 26.6.2002. He was superannuated on
30.6.2002 from service as Superintending Engineer. He (respondent)
instituted Civil Suit No. 569 of 2002 before Civil Judge, Porbandar, for
declaration that the departmental enquiry held against him and punishment
awarded are illegal. The plaintiff further sought his promotion with
effect from 1.1.2002. It is pleaded in the plaint that the departmental
enquiry was purposely kept pending with a motive to deny promotion to the
plaintiff. It was alleged by the plaintiff that the allegations in the
charge sheet were false, and the enquiry was initiated to allow promotion
of juniors to the plaintiff.
Strangely, though the defendant Gujarat Maritime Board (present appellant)
was served and represented through its counsel, but it did not file any
written statement contradicting the facts alleged in the plaint.
Since no written statement was filed by the defendant/ appellant, there was
no question of framing issues in the suit, and judgment could have been
pronounced under Order VIII Rule 10 of the Code of Civil Procedure, 1908
(for short “C.P.C.”). However, the trial court formulated the questions to
be decided in the suit as under: –
“(I) Whether the plaintiff establishes that, the charge sheet issued
against him and thereafter the order of the departmental inquiry and of the
punishment is illegal, unconstitutional and required to be rejected?
(II) Whether the plaintiff establishes that the act of the defendant
preventing the plaintiff from promotion on the post of Chief Engineer is
illegal, unconstitutional and requires to be rejected?
(III) Whether the plaintiff establishes that, by treating the promotion
with effect from 1/1/2002 the plaintiff is entitled and rightful to avail
all the rights of the said post?
(IV) Whether the plaintiff is entitled for the prayer sought for?”
The trial court considered the deposition of plaintiff G.C. Pandya and the
documentary evidence Ex. 14 to Ex. 25, and answered each question
discussing the evidence on record. Submissions of the learned counsel for
the parties were considered and it is only thereafter, the trial court (2nd
Additional Senior Civil Judge, Porbandar) passed the judgment and decree
dated 7.1.2009 in the suit.
Aggrieved by said judgment and decree, the defendant (present appellant)
filed Regular Civil Appeal No. 95 of 2009 before the District Judge,
Porbandar. After hearing the parties, said Regular Civil Appeal was
dismissed by the Additional District Judge, Porbandar, vide judgment and
order dated 29.9.2012. The first appellate court framed points of
determination and thereafter decided the appeal concurring with the trial
court.
The defendant (present appellant) thereafter, challenged judgment and
decree passed by first appellate court before the High Court, which was
registered as Second Appeal No. 172 of 2013. The High Court dismissed the
Second Appeal. Hence, this appeal before us through special leave.
Learned counsel for the appellant argued before us that no substantial
question of law was framed by the High Court, as such, the impugned order
passed by the High Court is liable to be set aside. It is further
contended that the plaintiff had not completed three years of service as
Superintending Engineer, as such, he was not entitled to be promoted as
Chief Engineer.
However, after going through the papers on record and considering the
submissions of the learned counsel for the parties, we find little force in
the above argument. As far as actual period served as Superintending
Engineer by the plaintiff is concerned, said fact should have been pleaded
specifically by the defendant/appellant, but it did not even care to file
the written statement before the trial court. When there was no such plea
before the trial court, we cannot set aside the concurrent findings of fact
of the courts below.
As far as the question of formulation of substantial questions of law in a
second appeal is concerned, we agree that before admitting a Second Appeal,
it is the duty of the High Court to formulate substantial questions of law
as required under Section 100 of C.P.C. But, in the present case, from the
impugned order it nowhere reflects that the second appeal was admitted,
rather it shows that after hearing the parties the High Court came to the
conclusion that there was no substantial question of law involved in the
appeal. The High Court has rightly taken note of the fact that the
defendant neither chose to file written statement nor led any evidence
before the trial court.
No doubt, the question of jurisdiction can be raised at any stage, but in
the present case, there was no other forum for the plaintiff where he could
have sought his remedy. The High Court has observed that the relief could
not have been sought by the plaintiff before the Gujarat Civil Services
Tribunal as the defendant was simply a Board and not covered within
jurisdiction of said Tribunal. It was not a matter to be heard by the
Central Administrative Tribunal either as the plaintiff was not a Central
Government employee. As such, we do not find any error in the impugned
order passed by the High Court.
In a case where the written statement is not filed, the civil court has the
jurisdiction to proceed under Order VIII Rule 10 of C.P.C. However, the
orders are not required to be passed in mechanical manner in exercise of
the powers contained in the above mentioned provision of law. In Balraj
Taneja and another v. Sunil Madan and another[1], this Court has laid down
law in paragraphs 25 to 27 on this point, as under: –
“25. Thus, in spite of admission of a fact having been made by a party to
the suit, the court may still require the plaintiff to prove the fact which
has been admitted by the defendant. This is also in consonance with the
provisions of Section 58 of the Evidence Act which provides as under:
“58. Facts admitted need not be proved.-No fact need be proved in any
proceeding which the parties thereto or their agents agree to admit at the
hearing, or which, before the hearing, they agree to admit by any writing
under their hands, or which by any rule or pleading in force at the time
they are deemed to have admitted by their pleadings:
Provided that the court may, in its discretion, require the facts admitted
to be proved otherwise than by such admissions.”
26. The proviso to this section specifically gives a discretion to the
court to require the facts admitted to be proved otherwise than by such
admission. The proviso corresponds to the proviso to Rule 5(1) Order 8 CPC.
27. In view of the above, it is clear that the court, at no stage, can act
blindly or mechanically. While enabling the court to pronounce judgment in
a situation where no written statement is filed by the defendant, the court
has also been given the discretion to pass such order as it may think fit
as an alternative. This is also the position under Order 8 Rule 10 CPC
where the court can either pronounce judgment against the defendant or pass
such order as it may think fit.”
In view of the law laid down by this Court, as above, we are of the view
that in the present case the trial court has not acted mechanically.
Rather it has discussed the pleadings and the evidence led by the
plaintiff, and considered rival submissions of the parties. The only error
committed by the trial court is that instead of directing defendant to
consider promotion of plaintiff with effect from 1.1.2002, it has declared
the plaintiff to have been promoted as Chief Engineer with effect from said
date without considering service record of the Officer (plaintiff). The
first appellate court and the High Court have also though considered the
arguments advanced before them, but erred in noticing the above error
committed by the trial court. As such, we have no option but to modify the
decree passed by the courts below to the above extent.
For the reasons, as discussed above, we are not inclined to interfere with
the impugned judgment and decree passed by the courts below except to the
extent as above. Accordingly, the appeal is partly allowed only to the
extent, that instead of treating the plaintiff to have been promoted with
effect from 1.1.2002 as Chief Engineer, his case shall be considered by the
defendant within a period of three months from today for promotion to the
post of Chief Engineer with effect from 1.1.2002, keeping in mind the
findings recorded in the suit. No order as to costs.
……………………………..J.
[Dipak Misra]
……………………………….J.
[Prafulla C. Pant]
New Delhi;
April 13, 2015.
———————–
[1] (1999) 8 SCC 396
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