Judgment:
1. Present Second Appeal is filed by the Gujarat State Road Transport Corporation appellant original defendant posing the substantial questions of law as follows:
(1) Whether the Civil Court has jurisdiction to try the dispute between the employer and employee when the employee is a workman within the meaning of Industrial Disputes Act, 1947?
(2) Whether the Appellate Court is wrong in setting aside the finding given under Order 2 Rule 2 of the Code of Civil Procedure by the trial Court?
(3) Whether the Appellate Court has power to sit over the finding given by the departmental authority under the provisions of Code of Civil Procedure?
(4) Whether the Appellate Court has power to set aside the judgment and decree passed by the trial Court in the facts and circumstances of the case under Order 41 of the C.P.C.?
2. The short facts of the case briefly summarized are that the original plaintiff respondent herein filed Regular Civil Suit No. 147 of 1984 challenging the order of dismissal on various counts. The respondent original plaintiff was serving as a conductor at Gondal S.T. Depot. He was involved in a default case in 1980 for not issuing tickets in spite of having collected the amount of the ticket and was chargesheeted. After the inquiry, the Divisional Controller passed an order reducing the plaintiff to minimum stage of scale. The said order was confirmed in appeal. Thereafter, the respondent original plaintiff was once again involved in another default case and show-cause notice was given and after inquiry he was dismissed from the service. The respondent plaintiff had challenged even the show-cause notice also by filing a suit and injunction application. Thereafter, it was withdrawn with a liberty to file a fresh suit after the order of punishment at the conclusion of the inquiry is passed. Therefore, the aforesaid Regular Civil Suit No. 147 of 1984 was filed on the ground that the S.T. Corporation is a State under Article 12 of the Constitution of India and he is entitled to protection under Article 311 of the Constitution of India. It was also contended that the entire issue has been prejudged and the order of punishment is in violation of the rules of natural justice. He had also challenged the inquiry and stated that the inquiry is without jurisdiction. On the basis of the material and evidence the suit was dismissed by the Civil Judge (S.D.), Gondal vide judgment and order dated 31.12.1987.
3. Against the said judgment and order, Regular Civil Appeal No. 14 of 1988 came to be preferred before the Assistant Judge, Gondal, District Rajkot by the respondent original plaintiff on the grounds set out in the memo of appeal. The lower Appellate Court allowed the appeal filed by the respondent original plaintiff setting aside the impugned judgment and order passed in Regular Civil Suit No.147 of 1984 and also declared that the order bearing No.1586 dated 15.9.1982 is illegal and in violation of the principle of natural justice and null and void. It also restrained the appellant original defendant from implementing the said order of dismissal vide judgment and order dated 06.01.1992. Therefore, the present second appeal has been preferred by the appellant Corporation setting out the substantial questions of law as stated herein above.
4. Learned counsel Mr. P.G.Desai submitted that as it was a case pertaining to the disciplinary matter, even though the Corporation is State within the meaning of Article 12 of the Constitution, still, it would be an industrial dispute and the jurisdiction of the civil Court would be barred. He further submitted that the respondent original plaintiff has filed one after another suit. He had challenged the show-cause notice and thereafter he has filed the present suit challenging the order of dismissal. He also submitted that on earlier occasion lenient view was taken while imposing the punishment. But, since it was second default after holding the regular inquiry, the order of dismissal came to be passed which was challenged by way of Regular Civil Suit No. 147 of 1984 which was dismissed. Learned Counsel Mr. P.G.Desai, however, submitted that the lower Appellate Court has proceeded on the wrong footing that there was violation of rules of natural justice and the main emphasis which has been given by the lower Appellate Court is that in the notice served by the inquiry officer and the punishing authority, there was no mention of the previous record of the respondent plaintiff which has been taken into consideration and therefore the respondent original plaintiff has been denied the right of making his representation at the time of inflicting the punishment and therefore the order of dismissal is in violation of the rules of natural justice and therefore null and void. Learned counsel Mr. Desai also submitted that the lower Appellate Court has failed to appreciate the facts while referring to the judgment of Hon'ble Apex Court reported in AIR 1964 S.C. P. 506. He pointedly referred to the fact that in that case the facts were totally different, whereas, in the facts of the present case, the fare was collected which was misappropriated. There the case pertained to non-issuance of ticket whereas here in this case after collecting the amount of tickets, the same has been misappropriated. Learned counsel Mr. Desai also submitted that even after filing of the suit the order has been implemented and the respondent plaintiff has accepted the pension and gratuity without any protest and therefore he is estopped from challenging the impugned order of dismissal. He, therefore, submitted that the present second appeal may be allowed. Learned counsel Mr. Desai also submitted that the reliance placed by the lower Appellate Court for the purpose of considering the aspect of jurisdiction is also misconceived in light of the judgments of the Hon'ble Apex Court. Learned counsel Mr. Desai submitted that the observations made by the lower Appellate Court that the respondent original plaintiff would be entitled to the protection under Article 311 is also misconceived. He, therefore, submitted that if the present second appeal is not allowed, it would amount to confirming the order of the lower Appellate Court whereby the order of dismissal is set aside and it would lead to a situation where the respondent-plaintiff may claim the benefits as if the order of dismissal is not passed and it would be a premium for such irregularities committed by the respondent plaintiff repeatedly. He has also referred to and relied upon the judgment of the Hon'ble Apex Court in the case of R.S.R.T.C. & Ors. v. Deen Dayal Sharma reported in 2010 AIR SCW 3108.
5. Learned counsel Mr. Joshi appearing for the respondent original plaintiff has relied upon the judgment in the case of Gujarat State Road Transport Corporation v. Ravji Tapubhai Goti reported in 1998(2) GLR P. 1418 and submitted that it has been discussed with regard to the jurisdiction of the Civil Court and it has also been held that the jurisdiction of the civil Court is not barred as the order inflicting penalty has been challenged not only on the ground of standing order but based on violation of common law or the disciplinary appeal rules. He, therefore, submitted that the judgment in the case of Rajasthan State Road Transport Corporation & Ors. v. Zakir Hussain reported in AIR 1995 Supreme Court 1715 has also been considered. He further submitted referring to the judgment of the Hon'ble Apex Court in the case of Rajasthan State Road Transport Corporation and Anr. v. Bal Mukund Bairwa reported in 2009 (2) GLH 348 that the jurisdiction of the Civil Court is not barred and the conclusion arrived at by the courts below with regard to the jurisdiction as well as order 2 rule 2 of C.P.C. are just and proper. He submitted that if the respondent original plaintiff had a right to file a suit for challenging the show-cause notice or the order inflicting the punishment in the departmental inquiry on the ground of violation of natural justice and when the findings have been given by the Court below on appreciation of facts, this Court may not examine, in exercise of discretion under Section 100 of the Code of Civil Procedure in the second appeal, as there is no substantial question of law which can be said to have been involved. He emphasized and submitted that another aspect is with regard to the inquiry conducted in violation of rules of natural justice or the order of inflicting punishment which is harsh as has been considered by the lower Appellate Court and this Court may not consider in exercise of discretion under Section 100 of Code of Civil Procedure in the second appeal. He, therefore, submitted that once the jurisdiction of the civil Court is held to be valid and the order is passed on appreciation of evidence, the present second appeal may not be entertained. He submitted that the earlier suit filed challenging the show-cause notice was withdrawn with the permission to file fresh suit and therefore Order 2 Rule 2 does not have any application as observed. He, therefore, submitted that the second appeal may not be entertained.
6. In view of rival submissions, it is required to be considered whether the present second appeal can be entertained or not.
7. It is well accepted that while exercising the discretion under Section 100 of C.P.C in second appeal, the scope is very limited and the High Court can interfere only when there are substantial questions of law involved. The Hon'ble Apex Court has laid down the guidelines with regard to exercise of discretion as observed in a judgment in the case of Gurdev Kaur and Ors. v. Kaki & Ors. reported in (2007) 1 SCC P. 546 wherein it has been specifically observed that the High Courts would have jurisdiction of interfering under Section 100 CPC only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words 'substantial question of law' which is indicative of the legislative intention. The legislative intention is very clear that legislature never wanted second appeal to become 'third trial on facts' or 'one more dice in the gamble'. It has been further reiterated and discussed as to the scope after the amendment in the Code of Civil Procedure. The same view has also been expressed in catena of judicial pronouncements including the judgment in the case of State Bank of India & Ors. v. S.N.Goyal reported in (2008) 8 SCC P. 92 and also in the case ofNarayanan Rajendran & Anr. v. Lakshmy Sarojini & Ors. reported in (2009) 5 SCC P. 264. However, even in the judgment reported in the case of Gurdev Kaur (supra) in para 70 it has been clearly observed as to when the High Court can exercise the discretion under Section 100 Code of Civil Procedure in second appeal.
8. The Hon'ble Apex Court has, at the same time, in its judgment in Ram Swaroop v. State of Rajasthan reported in AIR 2008 SC 1747, observed in para 17 as under:
"17. The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the Courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the Courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
9. It is required to be mentioned that initially the suit filed by the respondent original plaintiff was dismissed. It is also contended with regard to protection under Article 311 of the Constitution of India. However, it will have no application as the respondent original plaintiff cannot be a servant or the employee of the State, but he is an employee of the Corporation and protection under Article 311 would not be applicable to the employees of a statutory Corporation. This aspect has not been focused properly and the lower Appellate Court has misdirected while considering the fact that the appellant Corporation is a "State" within the meaning of Article 12 of the constitution of India.
10. Further, what has been observed in para 15 by the lower Appellate Court is that in the notice issued by the authority, there is no mention of previous record of respondent original plaintiff and therefore the order of dismissal is in violation of the principles of natural justice. There is no dispute that it was a second default and it is also not in dispute that earlier a lenient view was taken and lessor punishment was imposed. Therefore, on the second default, after the inquiry was held and after providing an opportunity the order of dismissal came to be passed which cannot be set aside merely on a ground that this aspect has not been mentioned in the notice which has been considered while inflicting the punishment. It goes without saying that these aspects are required to be considered. The respondent plaintiff had challenged the show-cause notice by way of a suit, which came to be withdrawn, and after the order of inflicting the punishment/dismissal, the suit came to be filed. Earlier, Civil Suit No. 193 of 1980 for challenging the inquiry and punishment was also filed raising the same contentions with regard to violation of natural justice and the inquiry was not properly conducted or that the plaintiff was not given reasonable opportunity. It was withdrawn on 29.06.1984 with a permission to file fresh suit and thereafter Regular Civil Suit No. 147 of 1984 has been filed. Thus, one suit after another has been filed and Civil Suit No. 193 of 1980 has been filed challenging the entire inquiry on various grounds and therefore the present suit would not have been maintainable.
11. Similarly, the respondent plaintiff had filed Special Civil Application No. 4479 of 1982 before the High Court which has been rejected. He had also preferred an application before the Industrial Tribunal under Section 33 of the Industrial Disputes Act.
12. It is in this background, though, normally, this Court would not interfere with the order of the lower Appellate Court in exercise of discretion under Section 100 of CPC in the second appeal, however, the fact remains that there is no concurrent finding and the suit filed by the plaintiff was dismissed and the lower Appellate Court has misdirected and allowed the appeal in spite of the aforesaid chequered history. In view of the fact that earlier suit No. 193 of 1980 was withdrawn, the present suit No. 147 of 1984 would not have been maintainable. Further, even Special Civil Application No. 4479 of 1982 had been rejected. The respondent original plaintiff cannot say that the rule of natural justice is violated and the inquiry has been conducted in violation of the rules of natural justice and no opportunity was given to him. The respondent original plaintiff is, therefore, estopped from raising such a plea.
13. Further, the plaintiff himself has accepted his contribution of the provident fund and gratuity amount without any protest or reserving any right which also reflects his attitude.
14. In these circumstances, the moot question which is required to be considered is that even if it is accepted that the jurisdiction of the civil Court is not barred and the suit is maintainable, still, whether in the facts and circumstances and on the basis of evidence it would call for any interference. Admittedly, there is no dispute about the fact that inquiry has been conducted and the charges have been established as observed by both the Courts below. Therefore, once an inquiry has been conducted and the charges have been established, whether the lower Appellate Court could have interfered and substituted its finding on the aspect of quantum of punishment merely on the ground that the notice issued did not mention about the previous history of the plaintiff.
15. As discussed herein above, even the lower Appellate Court has accepted about the inquiry having been conducted and the charges having been established, the order has been passed on the ground that the notice issued for the purpose of quantum of punishment has not referred to the history which is said to have been taken into consideration and therefore it has been stated that opportunity has been denied or the rules of natural justice have been violated. One fails to understand how the rules of natural justice can be said to have been violated when the notice has already been issued admittedly for the quantum of punishment. Therefore, admittedly when the notice has been issued and opportunity has been given to the respondent plaintiff on the aspect of quantum of punishment, the lower Appellate Court has misdirected in interfering with the order with regard to the punishment on the ground of violation of principles of natural justice. Therefore, the lower Appellate Court having based the findings only on such trivial matter with regard to the notice and not mentioning about the earlier history of the original plaintiff and ignoring the entire evidence and had thereby misdirected while setting aside the impugned judgment and order of the trial Court and also the order of dismissal. It has also been noticed and considered by the trial Court about the past conduct and the earlier incident and after taking into consideration the repeated occurrence the order of dismissal has been held to be justified considering the aspect of quantum of punishment.
16. There is no doubt that while considering such aspect, the doctrine of proportionality has to be considered. It is also well accepted that while considering such aspect, the doctrine of proportionality has to be considered which would depend upon the gravity of the charges, repetition, etc. In the facts of the case, as there is repetition of such misconduct, the impugned order has been passed which cannot be said to be erroneous, particularly when, admittedly the inquiry is held and the charges are established after affording an opportunity.
17. In these circumstances, it is required to be considered whether the lower Appellate Court could have reversed the findings while confirming the fact that charges are established and only on the aspect of quantum of punishment it has substituted its findings. The Hon'ble Apex Court in catena of judicial pronouncements has observed that normally the Court would not substitute its own findings while deciding the quantum of punishment unless it is found to be too harsh. In the facts of the present case, while considering this aspect, a useful reference can be made to the observations made by the Hon'ble Apex Court in the case ofU.P.State Road Transport Corporation v. Vinod Kumar reported in (2008) 1 Supreme Court Cases 115, wherein it has been observed in a similar case of conductor of a State Transport Corporation with regard to misappropriation of money by carrying the passengers without tickets. In the said judgment, it has been observed as under:
"This Court in a number of judgments has held that the punishment of removal/dismissal is the appropriate punishment for an employee found guilty of misappropriation of funds; and the Courts should be reluctant to reduce the punishment on misplaced sympathy for a workman. That, there is nothing wrong in the employer losing confidence or faith in such an employee and awarding punishment of dismissal. That, in such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering with the quantum of punishment."
18. Therefore, after taking into consideration various aspects like, gravity of the charges, findings in the inquiry, etc. when the punishment is inflicted, the same cannot be easily interfered with. Therefore, as rightly submitted, the lower Appellate Court has failed to appreciate all these material and evidence while observing that the order of dismissal is in violation of the principles of natural justice and therefore to that extent it has misdirected as the observations would be self contradictory inasmuch as, on one hand, the inquiry is admittedly held and the notice at the conclusion of the inquiry for quantum of punishment is also issued. But, while imposing the punishment, merely because the notice has not mentioned about the earlier history which is considered, is held to be bad and is made a ground for setting aside the order of the trial Court. As observed, the lower Appellate Court has, misdirected as it cannot be said to be in violation of natural justice when the Hon'ble Apex Court has discussed as above observing that the Court normally would not substitute its own findings with regard to quantum of punishment. The lower Appellate Court ought not to have disturbed the findings.
19. Therefore, the present second appeal deserves to be allowed and accordingly stands allowed. The impugned judgment and order dated 06.01.1992 passed by the Assistant Judge, Gondal in Regular Civil Appeal No. 14 of 1988 is hereby quashed and set aside.
20. Rule is made absolute. No order as to costs.