Ajay Rastogi, J.
1. It is defendant's special appeal filed against judgment & decree dt. 28.5.1993 passed by Additional District Judge No. 2, Ajmer whereby dismissal of plaintiff dt. 11.5.76 has been set aside with the direction for his reinstatement with all consequential benefits, and affirmed by learned Single Judge while dismissing appeal vide judgment dt. 28.5.96.
2. Brief facts relevant to examine controversy are that plaintiff initially joined service on probation as Development Officer on 5.4.64 and was confirmed from 1.4.66. His service conditions are regulated by Life Insurance Corporation of India (Staff) Regulations, 1960 ('Staff Regulations') framed in exercise of powers vested under Clauses (b) & (bb) of Sub-section (2) of Section 49 of Life Insurance Corporation of India ('LIC').
3. Charge sheet dt. 16.4.74 imputing six charges was served upon plaintiff. Pending inquiry, he was placed under suspension vide order dt. 9.8.74. A supplementary charge sheet was also served on 21.10.74. R.S. Maheshwari was appointed as inquiry officer, who after completion of inquiry proceedings, submitted his report to disciplinary authority on 29.1.76 on the basis of which plaintiff was served with show cause notice on 23.2.76 holding inter-alia as to why he should not be dismissed from service.
4. It is pertinent to mention here that neither copy of inquiry was made available to the plaintiff nor it was disclosed in show cause notice as to on what premise finding of guilt was recorded by inquiry officer or by disciplinary authority while the decision was taken of his dismissal from service vide order dt. 11.5.76.
5. However, plaintiff submitted his reply to show cause notice on 2.4.76 inter-alia pointing out irregularities committed in process of inquiry by the officer and denial of reasonable opportunity of hearing to him; but without taking note of his submissions, by non-speaking order and further without disclosing its opinion, on the basis of which disciplinary authority held the plaintiff guilty of charges levelled and arrived to the conclusion for dismissal from service vide order dt. 11.5.76, against which he preferred departmental appeal under Regulation 40 of Service Regulations - that too was dismissed by a non-speaking order dt. 20.12.76 and memorial submitted to the LIC Chairman, also met with same fate vide order dt. 12.10.77.
6. Aggrieved by the orders (supra), plaintiff respondent instituted a pauper suit Under Order 7 Rule 1 read with Order 33 Rule 1, CPC, for seeking declaration that departmental inquiry proceedings which culminated into passing of order of dismissal from service which was affirmed by appellate authority and the LIC Chairman, be declared illegal and he be held entitled to reinstatement in service with all consequential benefits. Permission to accord sanction for filing pauper suit was granted by Trial Court vide order dt. 26.7.82.
7. As many as six issues were framed by Trial Court on the basis of pleadings of the parties. In totality, relevant issue under consideration was as to whether action of respondent in taking decision of his dismissal from service and rejection of appeal so also memorial to LIC Chairman, are in violation of principles of natural justice and in the absence of which, what relief plaintiff is entitled for.
8. The Trial Court decided issues in favour of plaintiff while holding that there was complete violation of principles of natural justice and no reasonable opportunity of being heard was afforded to plaintiff, inasmuch as orders affirming dismissal from service by appellate authority so also LIC Chairman were also passed in breach of provisions contained in the Service Regulations. Ultimately the Trial Court passed a decree quashing & setting aside order of dismissal from service with further direction to reinstate the plaintiff in service alongwith consequential benefits including salary for intervening period; against which the appellant preferred first appeal before learned Single Judge, which has been dismissed and the findings recorded by Trial Court stands confirmed vide judgment dt. 28.5.96. Hence this special appeal.
9. Shri M.D. Agrawal, Counsel for appellant urged that plaintiff was workman, so provisions of Industrial Disputes Act, 1947 are applicable, as such civil court has no jurisdiction to entertain suit to examine the validity of his dismissal from service in view of bar as provided in Section 9, CPC. In support of his contention Shri Agrawal placed reliance upon decision of Apex Court in Raj. State Road Trans. Corporation v. Zakir Hussain 2005 (5) Supreme 813 : 2005(4) RLW 2512 (SC).
10. It was also contended by Shri Agrawal that both the courts below have committed serious error of law in appreciating material on record and the finding recorded while holding that there was violation of principle of natural justice in conducting disciplinary inquiry, is totally perverse and not at all corroborated by material on record. In this regard, Shri Agrawal has submitted that Shri Ratanlal Teli had appeared in course of inquiry but plaintiff respondent had failed to cross examine him as such there was no option available except to proceed ex parte against him and all charges which were based on documentary evidence were supplied to the plaintiff, therefore, even if no witness has appeared to lead his evidence in course of inquiry, that in no manner caused any prejudice to him in establishing his case; and that apart, three other witnesses who are class IV employee, Managers of Chittorgarh and Sikar Branch of the L.I.C., also appeared in the course of inquiry and got their statements recorded. After taking note of documentary evidence which was duly supported by statements of these witnesses, the inquiry officer held the charges proved against him and disciplinary authority after going through material on the record of inquiry concurred with finding of guilt recorded in inquiry report and issued show cause notice expressing opinion of taking decision of his dismissal from service and finally passed an order of dismissal on 11.5.76. Shri Agrawal contended that these are being quasi judicial proceedings, due compliance has been made strictly in accordance with Regulations, 1960, and the findings recorded by courts below are required to be reconsidered by this Court.
11. Shri Agrawal also contended that the impugned dismissal was of 1976; even if the same is found to be in violation of principle of natural justice, respondent plaintiff could not be held entitled for grant of back wages or other consequential benefits for the reason that he had not worked during intervening period on the principles of no work - no pay and has attained age of superannuation in the year 2000 as such question of reinstatement even if the impugned decree is affirmed by this Court could not be otherwise executed.
12. Per contra, Shri Sunil Samdaria, Counsel for plaintiff has supported the judgment of courts below and contended that civil court has jurisdiction in such like matters and both the courts have recorded a concurrent finding of fact while arriving at the conclusion that there was violation of principles of natural justice in the course of conducting inquiry, and the decision with regard to his dismissal from service is bad in law, which is duly supported by material on record; and since respondent plaintiff was restrained to work on account of illegal order of dismissal from service, which was arbitrary being violative of principles of natural justice so also of Regulations, 1960, as such principle of no work - no pay will not be applicable. Shri Samdaria placed reliance upon decision of Apex Court in Chandrakant Tukaram Nikam v. Municipal Corporation Ahmedabad 2002 (2) SCC 542.
13. We have considered rival contentions of the parties and with their assistance, pondered over material on record. Undisputably, in fact there was no such objection ever raised by defendant appellant in written statement in regard to jurisdiction of civil court, thereby no issue was framed for consideration by Trial Court, but being legal issue it was considered by learned Single Judge.
14. Section 9, CPC, provided that civil courts have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. In view of language of Sectioin 9, CPC, there should be presumption in favour of jurisdiction of civil court and exclusion of jurisdiction should not be readily inferred unless such exclusion is either explicitly expressed or clearly implied.
15. Plaintiff respondent challenged validity of order dismissing from service passed by statutory Corporation in exercise of powers under Service Regulations which have been framed in exercise of powers vested under the LIC Act. Grievance raised by plaintiff was purely of civil nature questioning validity of order of dismissal from service passed in violation of principles of natural justice so also of service Regulations. This is a common law right which does not expressly oust jurisdiction of civil court in any manner. That apart plaintiff undisputably has not claimed for enforcement of any right or obligation created under the Industrial Disputes Act or regulations framed thereunder, in the absence of which remedy was available to approach civil court for adjudication of his cause.
16. In earlier decision in S.K Verma v. Mahesh Chandra 1993 (4) SCC 214, the Apex Court held that LIC development officers are workmen but when it came for consideration in HR Adyanthaya v. Sandoz : (1995)ILLJ303SC , the Apex Court considered earlier decision in SK Verma's case (supra) to be per incuriam and not good law, which has also been followed by 3 Judges Bench of Apex Court in Mukesh K. Tripathi v. Sr. Div. Manager LIC : (2004)IIILLJ740SC . Accordingly LIC development officers were not considered to be workmen who could raise an industrial dispute under the Industrial Disputes Act.
17. In our considered opinion, If dispute is not an Industrial dispute and it does not relate to enforcement of any right under the Industrial Disputes Act, remedy lies only in civil court and if dispute is an industrial dispute, but arising out of a right or liability created under General or Common law and not under the Act, jurisdiction of civil court is alternative and leaves a discretion for incumbent to choose his remedy for the relief which is competent to be granted in a particular remedy.
18. In view of what has been observed (supra), judgment on which the Counsel has placed reliance in (1) RSRTC v. Zakir Hussain & (2) C. Tukaram Nikam v. Mun. Corporation (supra) are of no assistance to the appellant.
19. So far as merits in regard to the inquiry proceedings is concerned, Counsel for appellant has made general contentions that natural justice was fully complied with and findings recorded by Trial Court as well as by first appellate court are not supported by evidence on record. But we find from material on record that what has been stated is contrary to the evidence on record. The Trial Court as well as first appellate court has considered and analysed, in details, as to the charges imputed against plaintiff and inquiry was fixed for 5.2.77 at 10.00 A.M., which is evident from the prosecution (Ex.A/1 to A/10) but on the said date, plaintiff made request seeking permission to engage his defence assistant which was granted and further proceedings were deferred at that time, but thereafter at 11.15 A.M., inquiry again started and examination in-chief of Ratanlal was recorded but remained inconclusive for cross examination by delinquent (plaintiff) and subsequently he had not turned up, nor inquiry officer made efforts to get him recalled and get cross examination record so as to complete his statement and, therefore, there was no opportunity made available to plaintiff for cross examining 'departmental witness Ratanlal in relation to charge No. 1. As regards other charges, whereunder there was allegation against plaintiff that he took money from policy holders and issued to them a hand written receipt but such money was not deposited by him in the Corporation, persons from whom he took money and issued receipt except Ratanlal no one appeared or got examined by the Corporation in the course of inquiry in support of these charges. In the absence of burden first being discharged by department in getting allegations proved against plaintiff (delinquent), there was hardly any occasion for delinquent having come over to dispute charges imputed against him.
20. As regards other witnesses - Class IV servant & Branch Managers whose statements were recorded in official capacity, very premise on which inquiry officer recorded their versions for holding delinquent guilty, was not supported by any material on record. Learned Single Judge further recorded finding that inquiry and disciplinary officers were different and copy of inquiry report was not placed on record despite having been demanded by plaintiff (delinquent) pendente proceedings either before disciplinary authority or civil court; and even show cause notice served upon him dt. 23.2.76 does not disclose finding in respect of each of charges, on the basis of which he was being held guilty of charges proved on record, while merely an opinion was expressed that disciplinary authority concurred with finding recorded by inquiry officer holding him guilty, and was called upon to submit explanation as to why he should not be dismissed from service and even the contentions made by him against show cause notice were not considered, rather by a non-speaking order, opinion expressed in show cause notice was confirmed by passing order of dismissal from service.
21. Findings have also been recorded after due appreciation of evidence on record that neither appellate authority nor LIC Chairman to whom appeal was preferred, by a non-speaking order, rejected his appeal so also memorial submitted to LIC Chairman. After comprehensive appreciation of evidence on record, concurrent finding of fact was recorded by courts below holding action of appellant Corporation in passing impugned orders of dismissal from service was in clear violation of principles of natural justice as no reasonable opportunity of being heard was afforded under Service Regulations and even orders by disciplinary authority so also of appellate authority and the LIC Chairman to whom memorial was submitted, were passed by non- speaking order.
22. Under Regulation 39 of Service Regulations, after service of the charge sheet, a right is created of affording reasonable opportunity of being heard and defending himself against such imputed charges and after finding of guilt is recorded, show cause notice has also to be forwarded for proposed action and after explanation against show cause notice is received, disciplinary authority may examine the same and record good & sufficient reasons before inflicting any of penalties provided under service Regulations.
23. As regards obligation upon appellate authority, it is provided under Regulation 46 of Service Regulations under which, appellate authority has to independently examine the whole record of inquiry including finding recorded by disciplinary authority and to further consider as to whether finding recorded are justified and whether penalty imposed is excessive or adequate or inadequate, or as to whether procedure as prescribed under Service Regulations has been complied with in course of inquiry proceedings and if not, whether such non-compliance has resulted in failure of justice.
24. Upon careful pondering over impugned orders of disciplinary authority as well as of appellate authority, it clearly depicts that either of the authorities have not applied their mind independently while taking decision, with regard to holding the plaintiff guilty of imputed charges or inflicting penalty upon him.
25. We are in full conformity with concurrent findings recorded by courts below in upholding that there was breach of principles of natural justice and no reasonable opportunity of being heard was afforded to plaintiff (delinquent) nor does impugned orders disclose independent application of mind on the part of the authorities concerned while inflicting penalty vide impugned decision.
26. As regards last contention advanced by Counsel for appellant Corporation that plaintiff remained out of service and has not worked during intervening period as such he is not entitled to grant of consequential benefits, in our considered opinion, such a contention is of no substance. It is a case where plaintiff has been restrained from working in service of Corporation for no fault on his part and once order of dismissal from service has been found to be in violation of principles of natural Justice and of relevant service Regulations, as a consequence whereof, reinstatement in service with consequential benefits is a natural corollary thereto and no departure can be made therefrom, and principle of no work - no pay does not apply In the facts of present case. In our existing system if dispute remained pending in courts for last 29 years, laches in no manner can be attributed upon the plaintiffs to deprive him of legitimate claim, to which he is legally entitled for. We do not find any error in the judgments of Trial Court as well as of learned Single Judge in passing impugned decree in this regard. No other submission has been made.
27. Consequently, this special appeal fails and is hereby dismissed. No order as to costs.