Service matter - conductor removed from service - Disproportion punishment and non supply of documents and no opportunity to cross examine the witness - Suit filed - with out proper pleadings and evidence - as no evidence was adduced by the respondent and as the point of jurisdiction was not pressed - the lower court decreed the suit and High court also in second appeal confirmed the same as it can not touch the fact - Apex court held that since there is no pleadings and evidence , still the burden on plaintiff not discharged and in such an event no court should decree the suit and Apex court set aside the order and judgement of lower courts and allowed the appeal =
Departmental proceedings
Two chargesheets dated
11.3.1988 were served upon him. In the first chargesheet, it was
alleged that on 24.2.1988 while he was on duty enroute Kota-Rajpura,
when his bus was checked, it was found that 10 passengers were
traveling without tickets, though he had collected the fare from each
of them. In the second chargesheet, it had been alleged that when he
was on duty on route Kota-Neemuch, his bus was checked and he was
found carrying two passengers traveling on tickets of lesser amount
though, he had collected the full fare from them. The respondent
submitted separate reply to the said chargesheets which were not found
satisfactory. Therefore, the enquiry officer was appointed to enquire
into the matter and a regular enquiry ensued. The enquiry officer
after conclusion of the enquiry submitted the report holding that
charges leveled against the respondent in both the chargesheets stood
proved against him.
B. After considering the report, the Disciplinary Authority vide
order dated 5.8.1988 passed order of punishment of removal from the
service. The respondent filed a Civil Suit on 2.9.1988 challenging
the order of removal alleging that he was not supplied with the
documents referred to in the chargesheets, nor was given the enquiry
report nor other documents. More so, the quantum of punishment was
disproportionate to the proved delinquency.
Suit with out proper pleadings and facts
Neither there is any specific pleading as to what document
had not been supplied to him which has been relied upon by the enquiry
officer or which witness was not permitted to be cross- examined by
him. The trial court did not make any reference to enquiry report or
contents thereof. The entire case is based on ipsi dixi.
12. It is settled proposition of law that a party has to plead the
case and produce/adduce sufficient evidence to substantiate his
submissions made in the plaint and in case the pleadings are not
complete, the Court is under no obligation to entertain the pleas.
(Vide: M/s. Larsen & Toubro Ltd. & Ors. v. State of Gujarat & Ors.,
AIR 1998 SC 1608; National Building Construction Corporation v. S.
Raghunathan & Ors., AIR 1998 SC 2779; Ram Narain Arora v. Asha Rani &
Ors., (1999) 1 SCC 141; Smt. Chitra Kumari v. Union of India & Ors.,
AIR 2001 SC 1237; and State of U.P. v. Chandra Prakash Pandey, AIR
2001 SC 1298.)
No Disproportionate punishment
In Municipal Committee, Bahadurgarh v. Krishnan Behari,
AIR 1996 SC 1249 this Court held as under: (SCC p. 715, para 4)
“4. … In a case of such nature—indeed, in cases involving
corruption—there cannot be any other punishment than dismissal.
Any sympathy shown in such cases is totally uncalled for and
opposed to public interest. The amount misappropriated may be
small or large; it is the act of misappropriation that is
relevant.”
Similar view has been reiterated by this Court in Ruston &
Hornsby (I) Ltd. v. T.B. Kadam, AIR 1975 SC 2025, U.P. SRTC v.
Basudeo Chaudhary, (1997) 11 SCC 370, Janatha Bazar (South
Kanara Central Coop. Wholesale Stores Ltd.) v. Sahakari
Noukarara Sangha, (2000) 7 SCC 517, Karnataka SRTC v. B.S.
Hullikatti, AIR 2001 SC 930 and Rajasthan SRTC v. Ghanshyam
Sharma, (2002) 10 SCC 330.”
20. In view of the above, the contention raised on behalf of the
respondent employee, that the punishment of removal from service is
disproportionate to the delinquency is not worth acceptance.
The only
punishment in case of the proved case of corruption is dismissal from
service.
21. As a result, the appeal succeeds and is allowed. The judgments
of the courts below are set aside and the order of removal from
service passed by the Disciplinary Authority is restored. No order as
to costs.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4104 of 2007
Rajasthan State TPT Corpn. & Anr. …Appellants
Versus
Bajrang Lal …Respondent
O R D E R
Dr. B.S. CHAUHAN, J.
1. This appeal has been preferred by the Rajasthan State Road
Transport Corporation (hereinafter referred to as `Corporation’)
against the judgment and order dated 8.11.2005 passed by the High
Court of Judicature for Rajasthan (Jaipur Bench) in S.B. Civil Second
Appeal No. 449 of 2003 upholding the judgment and decree dated
28.1.2003 in Civil Regular Appeal No. 119 of 2002 passed by Additional
District Judge, Jaipur, by which and whereunder, it has affirmed the
judgment and decree dated 30.11.1994 passed by the Additional Civil
Judge (Jr. Div.) No. 2, Jaipur in Civil Suit No. 1346 of 1988.
2. Facts and circumstances giving rise to this appeal are that:
A. The respondent while working as a trainee conductor on daily
basis was found carrying certain passengers without tickets and, thus,
an enquiry was initiated against him. Two chargesheets dated
11.3.1988 were served upon him. In the first chargesheet, it was
alleged that on 24.2.1988 while he was on duty enroute Kota-Rajpura,
when his bus was checked, it was found that 10 passengers were
traveling without tickets, though he had collected the fare from each
of them. In the second chargesheet, it had been alleged that when he
was on duty on route Kota-Neemuch, his bus was checked and he was
found carrying two passengers traveling on tickets of lesser amount
though, he had collected the full fare from them. The respondent
submitted separate reply to the said chargesheets which were not found
satisfactory. Therefore, the enquiry officer was appointed to enquire
into the matter and a regular enquiry ensued. The enquiry officer
after conclusion of the enquiry submitted the report holding that
charges leveled against the respondent in both the chargesheets stood
proved against him.
B. After considering the report, the Disciplinary Authority vide
order dated 5.8.1988 passed order of punishment of removal from the
service. The respondent filed a Civil Suit on 2.9.1988 challenging
the order of removal alleging that he was not supplied with the
documents referred to in the chargesheets, nor was given the enquiry
report nor other documents. More so, the quantum of punishment was
disproportionate to the proved delinquency.
C. The Suit was contested by the appellants denying all the
averments made therein. However, on conclusion of the trial, the Suit
was decreed vide judgment and decree dated 30.11.1994.
D. Aggrieved, the Corporation filed Civil Regular Appeal No. 119 of
2002, which stood dismissed vide judgment and decree dated 28.1.2003.
E. The Corporation challenged both the aforesaid judgments by
filing Regular Second Appeal No. 449 of 2003, which also stood
dismissed vide impugned judgment and decree.
Hence, this appeal.
3. Shri S. K. Bhattacharya, learned counsel appearing on behalf of
the appellants, has submitted that none of the courts below have
examined the case in correct perspective. The stand taken by the
appellants that the Suit itself was not maintainable, as the only
remedy available to the respondent was to approach the Labour Court
under the Industrial Disputes Act, 1947 (hereinafter referred to as
the `Act 1947’) has not been properly examined by the courts below.
More so, the pleadings in the plaint were vague. The
respondent/plaintiff failed to prove any of the allegations made in
the plaint, therefore, the courts below have erred in holding that the
enquiry stood vitiated due to violation of statutory provisions and
principles of natural justice. The enquiry had been conducted
strictly in accordance with law, the provisions of Section 35 of the
Standing Order have been fully complied with and the respondent was
given full opportunity to defend himself. Therefore, the findings of
fact recorded by the courts below in this respect are perverse. The
respondent was found to have embezzled money of the corporation and
the punishment of dismissal cannot be held to be disproportionate to
the proved delinquency. Thus, the appeal deserves to be allowed.
4. On the contrary, Shri Anis Ahmed Khan, learned counsel appearing
on behalf of the respondent, has opposed the appeal contending that
there are concurrent findings of facts recorded by the three courts.
The trial court as well as the first appellate court have recorded the
findings of fact that the enquiry had not been conducted in accordance
with law and the punishment of dismissal from service was
disproportionate to the delinquency proved. Therefore, no interference
is called for.
5. We have heard learned counsel for the parties and perused the
record.
6. Undoubtedly, the appellant corporation had taken the plea
regarding the maintainability of suit on the ground that the
respondent being a workman ought to have approached the forum
available under the Act 1947 and the civil suit was not maintainable.
In order to fortify this submission Shri Bhattacharya has placed
reliance on the judgments of this Court in The Premier Automobiles
Ltd. v. Kamlekar Shantaram Wadke of Bombay & Ors., AIR 1975 SC 2238;
Uttam Das Chela Sunder Das v. Shiromani Gurdwara Parbandhak Committee,
Amritsar, AIR 1996 SC 2133; Rajasthan SRTC & Ors. v. Mohar Singh, AIR
2008 SC 2553; Rajasthan SRTC & Anr. v. Bal Mukund Bairwa, (2009) 4 SCC
299; and Rajasthan State Road Transport Corporation & Ors., v. Deen
Dayal Sharma, AIR 2010 SC 2662 and asserted that the judgments of the
courts below are without jurisdiction.
7. Be that as it may, before the trial court, the appellants did
not press the issue regarding the maintainability of suit even though
the issue in this regard had specifically been framed. Thus, we are
not inclined in delving into this controversy at all.
8. The relevant part of the plaint reads:
“That the plaintiff was imposed with the charge sheet no. 1158
dated 11.3.88 that on date 24.2.88 on the route Kota-Rajpura his
vehicle was checked and it was found during the course of the
inspection that he was carrying 10 passengers without tickets
and another Charge sheet no. 1159 dated 11.3.88 was imposed with
the statement that on date 27.11.88 the plaintiff was found
carrying 2 passengers without tickets during the course of his
giving the duty on the route Kota-Neernuch in the capacity of
the conductor and he was also caught in the case of the
difference in the ticket amount. That if the bus was not checked
in time then the plaintiff would have used the entire sum of
money he recovered from the passengers found without tickets for
his personal use. Whereas as per the terms and conditions of the
Corporation the plaintiff is required to issue the tickets to
all the passengers and then to get the same entered in the
waybill and that then only the vehicle should have been
departed. The aforesaid charges were totally wrong and
baseless.”
9. The appellant/defendant in its written statement basically
stated:
?“?The Defendants have mentioned in the reply that the plaintiff
had been appointed on the post of the conductor on the daily
wage basis. The plaintiff is not entitled of receiving the
salary of the regular pay scale from the date 7.12.85 because
the plaintiff was appointed as a daily wageworker and the salary
in accordance with the law was given to the plaintiff.
? During the course of the inquiry the plaintiff was given
full opportunity of defence and of being heard. The copy of the
enquiry report was supplied to the plaintiff after the
completion of the inquiry and he was also intimated the result
of the inquiry. In this way no violation of the principle of
natural justice was done as against the plaintiff whereas the
provisions of section 35 of the standing orders were fully
complied with. The Disciplinary Authority had by fully applying
its mind passed the order of termination of the plaintiff. The
plaintiff has produced the court fee at his own risk. The
Defendant Corporation comes within the definition of the
"Industry" and for which it is only the Hon'ble Industrial
Tribunal who has got the jurisdiction to hear and decide the
case of such nature. The plaintiff is not entitled of receiving
the monetary benefits and other consequential benefits from the
defendants. Therefore, the suit of the plaintiff be dismissed
with costs.”
10. After appreciating the material on record, the trial court held:
“In this way the plaintiff has clearly made the allegation in
the plaint that in the inquiry the statement of the witnesses
were not recorded in front of the plaintiff. He was not given an
opportunity to cross-examine the witnesses produced by the
defendant corporation and nor he was given an opportunity to
defend his case and lead the evidence. That he was not supplied
with the copies of the documents and was not heard on the
quantum of the punishment and he deposed the same by way of the
affidavit. That in order to contradict the same the defendants
have not produced any evidence by way of deposition and nor any
other document in support of the same has been produced. Under
these circumstances, there is no reason to disbelieve the
evidence of the plaintiff. That since the inquiry which has been
initiated against the plaintiff is against the principle of
natural justice, under these circumstances, the order of
termination which has been passed is also against the law.
Therefore, this suit issue is decided in favour of the plaintiff
and against the defendants.”
(Emphasis added)
11. The aforesaid findings recorded by the trial court is based only
on the allegations made by the respondent in the plaint and on failure
of the Corporation/defendant to rebut the same, though the trial court
had proceeded with the case clearly observing that the burden of
proving this issue was on the respondent/plaintiff and not on the
Corporation/defendant. In such a fact situation, no reasoning
whatsoever has been given by the trial court in support of its
conclusion. Neither there is any specific pleading as to what document
had not been supplied to him which has been relied upon by the enquiry
officer or which witness was not permitted to be cross- examined by
him. The trial court did not make any reference to enquiry report or
contents thereof. The entire case is based on ipsi dixi.
12. It is settled proposition of law that a party has to plead the
case and produce/adduce sufficient evidence to substantiate his
submissions made in the plaint and in case the pleadings are not
complete, the Court is under no obligation to entertain the pleas.
(Vide: M/s. Larsen & Toubro Ltd. & Ors. v. State of Gujarat & Ors.,
AIR 1998 SC 1608; National Building Construction Corporation v. S.
Raghunathan & Ors., AIR 1998 SC 2779; Ram Narain Arora v. Asha Rani &
Ors., (1999) 1 SCC 141; Smt. Chitra Kumari v. Union of India & Ors.,
AIR 2001 SC 1237; and State of U.P. v. Chandra Prakash Pandey, AIR
2001 SC 1298.)
13. In M/s. Atul Castings Ltd. v. Bawa Gurvachan Singh, AIR 2001 SC
1684, this Court observed as under:–
“The findings in the absence of necessary pleadings and
supporting evidence cannot be sustained in law.”
(See also: Vithal N. Shetti & Anr. v. Prakash N. Rudrakar & Ors.,
(2003) 1 SCC 18; Devasahayam (Dead) by L.Rs. v. P. Savithramma & Ors.,
(2005) 7 SCC 653; Sait Nagjee Purushotam & Co. Ltd. v. Vimalabai
Prabhulal & Ors., (2005) 8 SCC 252, Rajasthan Pradesh V.S.
Sardarshahar & Anr. v. Union of India & Ors., AIR 2010 SC 2221;
Ritesh Tiwari & Anr. v. State of U.P. & Ors., AIR 2010 SC 3823; and
Union of India v. Ibrahim Uddin & Anr. (2012) 8 SCC 148).
14. Therefore, once the trial court has held that the burden of
proof was on the respondent/plaintiff, it could not have come to the
aforesaid findings as there is nothing on record to show how the
averments/allegations made by the respondent stood proved.
15. Even the First Appellate Court misdirected itself while dealing
with the issue as it held:?
? “That no evidence was produced by the defendants/appellants.
The statement given by the plaintiff is unrebutted. That as per
the statement of the plaintiff the statement of the witnesses
were not recorded in front of the plaintiff. The plaintiff was
not given an opportunity of cross-examining the witnesses
produced by the Defendants/Appellants. The plaintiff was not
given an opportunity of leading the evidence and defending his
case. The copies of the documents were not supplied to the
plaintiff. He was also not heard on the quantum of the
punishment. In this way the deposition given by the plaintiff
are not rebutted and due to the reason of the same been
unrebuttable it can be said that no departmental inquiry was
initiated as against the plaintiff. Due to the reason of not
holding the departmental inquiry the proceeding initiated
against the plaintiff was not in accordance with the principle
of natural justice. The order of termination which has been
passed without holding the inquiry cannot be said to be passed
in accordance with the law. In this way the finding arrived at
by the learned subordinate court in respect of the issue no. 1
is just and proper and there is no need to interfere in the
same.”
16. The appellate court committed a grave error by declaring the
enquiry as non-est. The termination order as a consequence thereof,
stood vitiated though there is no reference to any material fact on
the basis of which such a conclusion was reached. The finding that
copy of the documents was not supplied to the respondent/plaintiff,
though there is nothing on record to show that how the documents were
relied upon and how they were relevant to the controversy involved,
whether those documents had been relied upon by the enquiry officer
and how any prejudice had been caused by non-supply of those
documents, is therefore without any basis or evidence. When the
matter reached the High Court in Second Appeal, the High Court refused
to examine the issue at all by merely observing that no substantial
question of law was involved and the findings of fact, however
erroneous, cannot be disturbed in Second Appeal.
17. With all respect, we do not agree with such a conclusion reached
by the High Court, as Second Appeal, in exceptional circumstances, can
be entertained on pure questions of fact. There is no prohibition for
the High Court to entertain the Second Appeal even on question of fact
where factual findings are found to be perverse.
18. In Ibrahim Uddin (Supra), this Court held:
“65. In Suwalal Chhogalal v. CIT, (1949) 17 ITR 269 (Nag) the
Court held as under: (ITR p. 277)
“… A fact is a fact irrespective of evidence by which it is
proved. The only time a question of law can arise in such a case
is when it is alleged that there is no material on which the
conclusion can be based or no sufficient material.
67. There is no prohibition to entertain a second appeal even
on question of fact provided the Court is satisfied that the
findings of the courts below were vitiated by non-consideration
of relevant evidence or by showing erroneous approach to the
matter and findings recorded in the court below are perverse.
[Vide Jagdish Singh v. Natthu Singh, AIR 1992 SC 1604, Prativa
Devi v. T.V. Krishnan, (1999) 5 SCC 353, Satya Gupta v. Brijesh
Kumar, (1998) 6 SCC 423, Ragavendra Kumar v. Firm Prem Machinery
& Co., AIR 2000 SC 534, Molar Mal v. Kay Iron Works (P) Ltd.,
AIR 2000 SC 1261, Bharatha Matha v. R. Vijaya Renganathan,
(2010) 11 SCC 483 and Dinesh Kumar v. Yusuf Ali, (2010 12 SCC
740]
68. In Jai Singh v. Shakuntala, AIR 2002 SC 1428, this Court
held that (SCC p. 638, para 6) it is permissible to interfere
even on question of fact but it may be only in
“very exceptional cases and on extreme perversity that the
authority to examine the same in extenso stands permissible—it
is a rarity rather than a regularity and thus in fine it can be
safely concluded that while there is no prohibition as such, but
the power to scrutiny can only be had in very exceptional
circumstances and upon proper circumspection”.
Similar view has been taken in Kashmir Singh v. Harnam Singh,
AIR 2008 SC 1749.”
19. As regards the question of disproportionate punishment is
concerned, the issue is no more res-integra. In U.P State Road
Transport Corporation v. Suresh Chand Sharma, (2010) 6 SCC 555, it
was held as under:
“22. In Municipal Committee, Bahadurgarh v. Krishnan Behari,
AIR 1996 SC 1249 this Court held as under: (SCC p. 715, para 4)
“4. … In a case of such nature—indeed, in cases involving
corruption—there cannot be any other punishment than dismissal.
Any sympathy shown in such cases is totally uncalled for and
opposed to public interest. The amount misappropriated may be
small or large; it is the act of misappropriation that is
relevant.”
Similar view has been reiterated by this Court in Ruston &
Hornsby (I) Ltd. v. T.B. Kadam, AIR 1975 SC 2025, U.P. SRTC v.
Basudeo Chaudhary, (1997) 11 SCC 370, Janatha Bazar (South
Kanara Central Coop. Wholesale Stores Ltd.) v. Sahakari
Noukarara Sangha, (2000) 7 SCC 517, Karnataka SRTC v. B.S.
Hullikatti, AIR 2001 SC 930 and Rajasthan SRTC v. Ghanshyam
Sharma, (2002) 10 SCC 330.”
20. In view of the above, the contention raised on behalf of the
respondent employee, that the punishment of removal from service is
disproportionate to the delinquency is not worth acceptance. The only
punishment in case of the proved case of corruption is dismissal from
service.
21. As a result, the appeal succeeds and is allowed. The judgments
of the courts below are set aside and the order of removal from
service passed by the Disciplinary Authority is restored. No order as
to costs.
…………......................J.
(Dr. B.S. CHAUHAN)
……….........................J.
(J. CHELAMESWAR)
NEW DELHI
March 14, 2014.?
-----------------------
14
Departmental proceedings
Two chargesheets dated
11.3.1988 were served upon him. In the first chargesheet, it was
alleged that on 24.2.1988 while he was on duty enroute Kota-Rajpura,
when his bus was checked, it was found that 10 passengers were
traveling without tickets, though he had collected the fare from each
of them. In the second chargesheet, it had been alleged that when he
was on duty on route Kota-Neemuch, his bus was checked and he was
found carrying two passengers traveling on tickets of lesser amount
though, he had collected the full fare from them. The respondent
submitted separate reply to the said chargesheets which were not found
satisfactory. Therefore, the enquiry officer was appointed to enquire
into the matter and a regular enquiry ensued. The enquiry officer
after conclusion of the enquiry submitted the report holding that
charges leveled against the respondent in both the chargesheets stood
proved against him.
B. After considering the report, the Disciplinary Authority vide
order dated 5.8.1988 passed order of punishment of removal from the
service. The respondent filed a Civil Suit on 2.9.1988 challenging
the order of removal alleging that he was not supplied with the
documents referred to in the chargesheets, nor was given the enquiry
report nor other documents. More so, the quantum of punishment was
disproportionate to the proved delinquency.
Suit with out proper pleadings and facts
Neither there is any specific pleading as to what document
had not been supplied to him which has been relied upon by the enquiry
officer or which witness was not permitted to be cross- examined by
him. The trial court did not make any reference to enquiry report or
contents thereof. The entire case is based on ipsi dixi.
12. It is settled proposition of law that a party has to plead the
case and produce/adduce sufficient evidence to substantiate his
submissions made in the plaint and in case the pleadings are not
complete, the Court is under no obligation to entertain the pleas.
(Vide: M/s. Larsen & Toubro Ltd. & Ors. v. State of Gujarat & Ors.,
AIR 1998 SC 1608; National Building Construction Corporation v. S.
Raghunathan & Ors., AIR 1998 SC 2779; Ram Narain Arora v. Asha Rani &
Ors., (1999) 1 SCC 141; Smt. Chitra Kumari v. Union of India & Ors.,
AIR 2001 SC 1237; and State of U.P. v. Chandra Prakash Pandey, AIR
2001 SC 1298.)
With all respect, we do not agree with such a conclusion reached
by the High Court, as Second Appeal, in exceptional circumstances, can
be entertained on pure questions of fact. There is no prohibition for
the High Court to entertain the Second Appeal even on question of fact
where factual findings are found to be perverse.
18. In Ibrahim Uddin (Supra), this Court held:
“65. In Suwalal Chhogalal v. CIT, (1949) 17 ITR 269 (Nag) the
Court held as under: (ITR p. 277)
“… A fact is a fact irrespective of evidence by which it is
proved. The only time a question of law can arise in such a case
is when it is alleged that there is no material on which the
conclusion can be based or no sufficient material.
67. There is no prohibition to entertain a second appeal even
on question of fact provided the Court is satisfied that the
findings of the courts below were vitiated by non-consideration
of relevant evidence or by showing erroneous approach to the
matter and findings recorded in the court below are perverse.
by the High Court, as Second Appeal, in exceptional circumstances, can
be entertained on pure questions of fact. There is no prohibition for
the High Court to entertain the Second Appeal even on question of fact
where factual findings are found to be perverse.
18. In Ibrahim Uddin (Supra), this Court held:
“65. In Suwalal Chhogalal v. CIT, (1949) 17 ITR 269 (Nag) the
Court held as under: (ITR p. 277)
“… A fact is a fact irrespective of evidence by which it is
proved. The only time a question of law can arise in such a case
is when it is alleged that there is no material on which the
conclusion can be based or no sufficient material.
67. There is no prohibition to entertain a second appeal even
on question of fact provided the Court is satisfied that the
findings of the courts below were vitiated by non-consideration
of relevant evidence or by showing erroneous approach to the
matter and findings recorded in the court below are perverse.
No Disproportionate punishment
In Municipal Committee, Bahadurgarh v. Krishnan Behari,
AIR 1996 SC 1249 this Court held as under: (SCC p. 715, para 4)
“4. … In a case of such nature—indeed, in cases involving
corruption—there cannot be any other punishment than dismissal.
Any sympathy shown in such cases is totally uncalled for and
opposed to public interest. The amount misappropriated may be
small or large; it is the act of misappropriation that is
relevant.”
Similar view has been reiterated by this Court in Ruston &
Hornsby (I) Ltd. v. T.B. Kadam, AIR 1975 SC 2025, U.P. SRTC v.
Basudeo Chaudhary, (1997) 11 SCC 370, Janatha Bazar (South
Kanara Central Coop. Wholesale Stores Ltd.) v. Sahakari
Noukarara Sangha, (2000) 7 SCC 517, Karnataka SRTC v. B.S.
Hullikatti, AIR 2001 SC 930 and Rajasthan SRTC v. Ghanshyam
Sharma, (2002) 10 SCC 330.”
20. In view of the above, the contention raised on behalf of the
respondent employee, that the punishment of removal from service is
disproportionate to the delinquency is not worth acceptance.
The only
punishment in case of the proved case of corruption is dismissal from
service.
21. As a result, the appeal succeeds and is allowed. The judgments
of the courts below are set aside and the order of removal from
service passed by the Disciplinary Authority is restored. No order as
to costs.
2014 (March. Part ) judis.nic.in/supremecourt/filename=41321
B.S. CHAUHAN, J. CHELAMESWARREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4104 of 2007
Rajasthan State TPT Corpn. & Anr. …Appellants
Versus
Bajrang Lal …Respondent
O R D E R
Dr. B.S. CHAUHAN, J.
1. This appeal has been preferred by the Rajasthan State Road
Transport Corporation (hereinafter referred to as `Corporation’)
against the judgment and order dated 8.11.2005 passed by the High
Court of Judicature for Rajasthan (Jaipur Bench) in S.B. Civil Second
Appeal No. 449 of 2003 upholding the judgment and decree dated
28.1.2003 in Civil Regular Appeal No. 119 of 2002 passed by Additional
District Judge, Jaipur, by which and whereunder, it has affirmed the
judgment and decree dated 30.11.1994 passed by the Additional Civil
Judge (Jr. Div.) No. 2, Jaipur in Civil Suit No. 1346 of 1988.
2. Facts and circumstances giving rise to this appeal are that:
A. The respondent while working as a trainee conductor on daily
basis was found carrying certain passengers without tickets and, thus,
an enquiry was initiated against him. Two chargesheets dated
11.3.1988 were served upon him. In the first chargesheet, it was
alleged that on 24.2.1988 while he was on duty enroute Kota-Rajpura,
when his bus was checked, it was found that 10 passengers were
traveling without tickets, though he had collected the fare from each
of them. In the second chargesheet, it had been alleged that when he
was on duty on route Kota-Neemuch, his bus was checked and he was
found carrying two passengers traveling on tickets of lesser amount
though, he had collected the full fare from them. The respondent
submitted separate reply to the said chargesheets which were not found
satisfactory. Therefore, the enquiry officer was appointed to enquire
into the matter and a regular enquiry ensued. The enquiry officer
after conclusion of the enquiry submitted the report holding that
charges leveled against the respondent in both the chargesheets stood
proved against him.
B. After considering the report, the Disciplinary Authority vide
order dated 5.8.1988 passed order of punishment of removal from the
service. The respondent filed a Civil Suit on 2.9.1988 challenging
the order of removal alleging that he was not supplied with the
documents referred to in the chargesheets, nor was given the enquiry
report nor other documents. More so, the quantum of punishment was
disproportionate to the proved delinquency.
C. The Suit was contested by the appellants denying all the
averments made therein. However, on conclusion of the trial, the Suit
was decreed vide judgment and decree dated 30.11.1994.
D. Aggrieved, the Corporation filed Civil Regular Appeal No. 119 of
2002, which stood dismissed vide judgment and decree dated 28.1.2003.
E. The Corporation challenged both the aforesaid judgments by
filing Regular Second Appeal No. 449 of 2003, which also stood
dismissed vide impugned judgment and decree.
Hence, this appeal.
3. Shri S. K. Bhattacharya, learned counsel appearing on behalf of
the appellants, has submitted that none of the courts below have
examined the case in correct perspective. The stand taken by the
appellants that the Suit itself was not maintainable, as the only
remedy available to the respondent was to approach the Labour Court
under the Industrial Disputes Act, 1947 (hereinafter referred to as
the `Act 1947’) has not been properly examined by the courts below.
More so, the pleadings in the plaint were vague. The
respondent/plaintiff failed to prove any of the allegations made in
the plaint, therefore, the courts below have erred in holding that the
enquiry stood vitiated due to violation of statutory provisions and
principles of natural justice. The enquiry had been conducted
strictly in accordance with law, the provisions of Section 35 of the
Standing Order have been fully complied with and the respondent was
given full opportunity to defend himself. Therefore, the findings of
fact recorded by the courts below in this respect are perverse. The
respondent was found to have embezzled money of the corporation and
the punishment of dismissal cannot be held to be disproportionate to
the proved delinquency. Thus, the appeal deserves to be allowed.
4. On the contrary, Shri Anis Ahmed Khan, learned counsel appearing
on behalf of the respondent, has opposed the appeal contending that
there are concurrent findings of facts recorded by the three courts.
The trial court as well as the first appellate court have recorded the
findings of fact that the enquiry had not been conducted in accordance
with law and the punishment of dismissal from service was
disproportionate to the delinquency proved. Therefore, no interference
is called for.
5. We have heard learned counsel for the parties and perused the
record.
6. Undoubtedly, the appellant corporation had taken the plea
regarding the maintainability of suit on the ground that the
respondent being a workman ought to have approached the forum
available under the Act 1947 and the civil suit was not maintainable.
In order to fortify this submission Shri Bhattacharya has placed
reliance on the judgments of this Court in The Premier Automobiles
Ltd. v. Kamlekar Shantaram Wadke of Bombay & Ors., AIR 1975 SC 2238;
Uttam Das Chela Sunder Das v. Shiromani Gurdwara Parbandhak Committee,
Amritsar, AIR 1996 SC 2133; Rajasthan SRTC & Ors. v. Mohar Singh, AIR
2008 SC 2553; Rajasthan SRTC & Anr. v. Bal Mukund Bairwa, (2009) 4 SCC
299; and Rajasthan State Road Transport Corporation & Ors., v. Deen
Dayal Sharma, AIR 2010 SC 2662 and asserted that the judgments of the
courts below are without jurisdiction.
7. Be that as it may, before the trial court, the appellants did
not press the issue regarding the maintainability of suit even though
the issue in this regard had specifically been framed. Thus, we are
not inclined in delving into this controversy at all.
8. The relevant part of the plaint reads:
“That the plaintiff was imposed with the charge sheet no. 1158
dated 11.3.88 that on date 24.2.88 on the route Kota-Rajpura his
vehicle was checked and it was found during the course of the
inspection that he was carrying 10 passengers without tickets
and another Charge sheet no. 1159 dated 11.3.88 was imposed with
the statement that on date 27.11.88 the plaintiff was found
carrying 2 passengers without tickets during the course of his
giving the duty on the route Kota-Neernuch in the capacity of
the conductor and he was also caught in the case of the
difference in the ticket amount. That if the bus was not checked
in time then the plaintiff would have used the entire sum of
money he recovered from the passengers found without tickets for
his personal use. Whereas as per the terms and conditions of the
Corporation the plaintiff is required to issue the tickets to
all the passengers and then to get the same entered in the
waybill and that then only the vehicle should have been
departed. The aforesaid charges were totally wrong and
baseless.”
9. The appellant/defendant in its written statement basically
stated:
?“?The Defendants have mentioned in the reply that the plaintiff
had been appointed on the post of the conductor on the daily
wage basis. The plaintiff is not entitled of receiving the
salary of the regular pay scale from the date 7.12.85 because
the plaintiff was appointed as a daily wageworker and the salary
in accordance with the law was given to the plaintiff.
? During the course of the inquiry the plaintiff was given
full opportunity of defence and of being heard. The copy of the
enquiry report was supplied to the plaintiff after the
completion of the inquiry and he was also intimated the result
of the inquiry. In this way no violation of the principle of
natural justice was done as against the plaintiff whereas the
provisions of section 35 of the standing orders were fully
complied with. The Disciplinary Authority had by fully applying
its mind passed the order of termination of the plaintiff. The
plaintiff has produced the court fee at his own risk. The
Defendant Corporation comes within the definition of the
"Industry" and for which it is only the Hon'ble Industrial
Tribunal who has got the jurisdiction to hear and decide the
case of such nature. The plaintiff is not entitled of receiving
the monetary benefits and other consequential benefits from the
defendants. Therefore, the suit of the plaintiff be dismissed
with costs.”
10. After appreciating the material on record, the trial court held:
“In this way the plaintiff has clearly made the allegation in
the plaint that in the inquiry the statement of the witnesses
were not recorded in front of the plaintiff. He was not given an
opportunity to cross-examine the witnesses produced by the
defendant corporation and nor he was given an opportunity to
defend his case and lead the evidence. That he was not supplied
with the copies of the documents and was not heard on the
quantum of the punishment and he deposed the same by way of the
affidavit. That in order to contradict the same the defendants
have not produced any evidence by way of deposition and nor any
other document in support of the same has been produced. Under
these circumstances, there is no reason to disbelieve the
evidence of the plaintiff. That since the inquiry which has been
initiated against the plaintiff is against the principle of
natural justice, under these circumstances, the order of
termination which has been passed is also against the law.
Therefore, this suit issue is decided in favour of the plaintiff
and against the defendants.”
(Emphasis added)
11. The aforesaid findings recorded by the trial court is based only
on the allegations made by the respondent in the plaint and on failure
of the Corporation/defendant to rebut the same, though the trial court
had proceeded with the case clearly observing that the burden of
proving this issue was on the respondent/plaintiff and not on the
Corporation/defendant. In such a fact situation, no reasoning
whatsoever has been given by the trial court in support of its
conclusion. Neither there is any specific pleading as to what document
had not been supplied to him which has been relied upon by the enquiry
officer or which witness was not permitted to be cross- examined by
him. The trial court did not make any reference to enquiry report or
contents thereof. The entire case is based on ipsi dixi.
12. It is settled proposition of law that a party has to plead the
case and produce/adduce sufficient evidence to substantiate his
submissions made in the plaint and in case the pleadings are not
complete, the Court is under no obligation to entertain the pleas.
(Vide: M/s. Larsen & Toubro Ltd. & Ors. v. State of Gujarat & Ors.,
AIR 1998 SC 1608; National Building Construction Corporation v. S.
Raghunathan & Ors., AIR 1998 SC 2779; Ram Narain Arora v. Asha Rani &
Ors., (1999) 1 SCC 141; Smt. Chitra Kumari v. Union of India & Ors.,
AIR 2001 SC 1237; and State of U.P. v. Chandra Prakash Pandey, AIR
2001 SC 1298.)
13. In M/s. Atul Castings Ltd. v. Bawa Gurvachan Singh, AIR 2001 SC
1684, this Court observed as under:–
“The findings in the absence of necessary pleadings and
supporting evidence cannot be sustained in law.”
(See also: Vithal N. Shetti & Anr. v. Prakash N. Rudrakar & Ors.,
(2003) 1 SCC 18; Devasahayam (Dead) by L.Rs. v. P. Savithramma & Ors.,
(2005) 7 SCC 653; Sait Nagjee Purushotam & Co. Ltd. v. Vimalabai
Prabhulal & Ors., (2005) 8 SCC 252, Rajasthan Pradesh V.S.
Sardarshahar & Anr. v. Union of India & Ors., AIR 2010 SC 2221;
Ritesh Tiwari & Anr. v. State of U.P. & Ors., AIR 2010 SC 3823; and
Union of India v. Ibrahim Uddin & Anr. (2012) 8 SCC 148).
14. Therefore, once the trial court has held that the burden of
proof was on the respondent/plaintiff, it could not have come to the
aforesaid findings as there is nothing on record to show how the
averments/allegations made by the respondent stood proved.
15. Even the First Appellate Court misdirected itself while dealing
with the issue as it held:?
? “That no evidence was produced by the defendants/appellants.
The statement given by the plaintiff is unrebutted. That as per
the statement of the plaintiff the statement of the witnesses
were not recorded in front of the plaintiff. The plaintiff was
not given an opportunity of cross-examining the witnesses
produced by the Defendants/Appellants. The plaintiff was not
given an opportunity of leading the evidence and defending his
case. The copies of the documents were not supplied to the
plaintiff. He was also not heard on the quantum of the
punishment. In this way the deposition given by the plaintiff
are not rebutted and due to the reason of the same been
unrebuttable it can be said that no departmental inquiry was
initiated as against the plaintiff. Due to the reason of not
holding the departmental inquiry the proceeding initiated
against the plaintiff was not in accordance with the principle
of natural justice. The order of termination which has been
passed without holding the inquiry cannot be said to be passed
in accordance with the law. In this way the finding arrived at
by the learned subordinate court in respect of the issue no. 1
is just and proper and there is no need to interfere in the
same.”
16. The appellate court committed a grave error by declaring the
enquiry as non-est. The termination order as a consequence thereof,
stood vitiated though there is no reference to any material fact on
the basis of which such a conclusion was reached. The finding that
copy of the documents was not supplied to the respondent/plaintiff,
though there is nothing on record to show that how the documents were
relied upon and how they were relevant to the controversy involved,
whether those documents had been relied upon by the enquiry officer
and how any prejudice had been caused by non-supply of those
documents, is therefore without any basis or evidence. When the
matter reached the High Court in Second Appeal, the High Court refused
to examine the issue at all by merely observing that no substantial
question of law was involved and the findings of fact, however
erroneous, cannot be disturbed in Second Appeal.
17. With all respect, we do not agree with such a conclusion reached
by the High Court, as Second Appeal, in exceptional circumstances, can
be entertained on pure questions of fact. There is no prohibition for
the High Court to entertain the Second Appeal even on question of fact
where factual findings are found to be perverse.
18. In Ibrahim Uddin (Supra), this Court held:
“65. In Suwalal Chhogalal v. CIT, (1949) 17 ITR 269 (Nag) the
Court held as under: (ITR p. 277)
“… A fact is a fact irrespective of evidence by which it is
proved. The only time a question of law can arise in such a case
is when it is alleged that there is no material on which the
conclusion can be based or no sufficient material.
67. There is no prohibition to entertain a second appeal even
on question of fact provided the Court is satisfied that the
findings of the courts below were vitiated by non-consideration
of relevant evidence or by showing erroneous approach to the
matter and findings recorded in the court below are perverse.
[Vide Jagdish Singh v. Natthu Singh, AIR 1992 SC 1604, Prativa
Devi v. T.V. Krishnan, (1999) 5 SCC 353, Satya Gupta v. Brijesh
Kumar, (1998) 6 SCC 423, Ragavendra Kumar v. Firm Prem Machinery
& Co., AIR 2000 SC 534, Molar Mal v. Kay Iron Works (P) Ltd.,
AIR 2000 SC 1261, Bharatha Matha v. R. Vijaya Renganathan,
(2010) 11 SCC 483 and Dinesh Kumar v. Yusuf Ali, (2010 12 SCC
740]
68. In Jai Singh v. Shakuntala, AIR 2002 SC 1428, this Court
held that (SCC p. 638, para 6) it is permissible to interfere
even on question of fact but it may be only in
“very exceptional cases and on extreme perversity that the
authority to examine the same in extenso stands permissible—it
is a rarity rather than a regularity and thus in fine it can be
safely concluded that while there is no prohibition as such, but
the power to scrutiny can only be had in very exceptional
circumstances and upon proper circumspection”.
Similar view has been taken in Kashmir Singh v. Harnam Singh,
AIR 2008 SC 1749.”
19. As regards the question of disproportionate punishment is
concerned, the issue is no more res-integra. In U.P State Road
Transport Corporation v. Suresh Chand Sharma, (2010) 6 SCC 555, it
was held as under:
“22. In Municipal Committee, Bahadurgarh v. Krishnan Behari,
AIR 1996 SC 1249 this Court held as under: (SCC p. 715, para 4)
“4. … In a case of such nature—indeed, in cases involving
corruption—there cannot be any other punishment than dismissal.
Any sympathy shown in such cases is totally uncalled for and
opposed to public interest. The amount misappropriated may be
small or large; it is the act of misappropriation that is
relevant.”
Similar view has been reiterated by this Court in Ruston &
Hornsby (I) Ltd. v. T.B. Kadam, AIR 1975 SC 2025, U.P. SRTC v.
Basudeo Chaudhary, (1997) 11 SCC 370, Janatha Bazar (South
Kanara Central Coop. Wholesale Stores Ltd.) v. Sahakari
Noukarara Sangha, (2000) 7 SCC 517, Karnataka SRTC v. B.S.
Hullikatti, AIR 2001 SC 930 and Rajasthan SRTC v. Ghanshyam
Sharma, (2002) 10 SCC 330.”
20. In view of the above, the contention raised on behalf of the
respondent employee, that the punishment of removal from service is
disproportionate to the delinquency is not worth acceptance. The only
punishment in case of the proved case of corruption is dismissal from
service.
21. As a result, the appeal succeeds and is allowed. The judgments
of the courts below are set aside and the order of removal from
service passed by the Disciplinary Authority is restored. No order as
to costs.
…………......................J.
(Dr. B.S. CHAUHAN)
……….........................J.
(J. CHELAMESWAR)
NEW DELHI
March 14, 2014.?
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