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Union Of India & Others v. Ram Nath Singh & Others - SECOND APPEAL No. 696 of 2006  RD-AH 6765 (12 April 2007)
[Court No. 27]
Second Appeal No. 696 of 2006
Union of India and others Vs. Ram Nath Singh and others.
Hon. Mrs. Poonam Srivastav, J.
Heard Shri Govind Saran counsel for the appellants and Shri V.K. Singh counsel for the plaintiff respondent no.1.
1. This appeal is listed for admission. As agreed between the counsel for the respective parties this appeal is being heard on merit and decided finally at the stage of admission itself.
2. Counsel for the appellants has framed a number of substantial questions of law. But he has advanced arguments only on two substantial questions of law which follow as under:
1) Whether the courts below have exceeded its jurisdiction in giving its own finding different from the finding arrived by the disciplinary authorities?
2) Whether the finding of the courts below that the order passed by the disciplinary authorities is a nullity for the reasons that the plaintiff was not given proper opportunity of defence by not examining the witnesses during the departmental proceedings?
Brief facts are that the plaintiff-respondent no. 1 instituted Original Suit No. 215 of 1994 for declaration that the orders dated 31.5.1991 passed by the Defendant no. 3 , Divisional Security Commissioner, Railway Protection Force, Northern Railway Ambala Cantonment, imposing punishment to plaintiff no. 1 of removal from service, and the order dated 26.6.1992 passed by the defendant no. 6 directing for compulsory retirement of plaintiff, modifying earlier order, are arbitrary, baseless and viod.
3. The appellants filed written statement and denied the plaint allegations. Additional plea raised was that the plaintiff has exhausted all remedies in appeal, revision provided under the relevant departmental rules and the civil court had no jurisdiction to try the suit which was liable to be dismissed.
5. The plaintiff was posted as a constable in Railway Protection Force and was working as such w.e.f. 25.8.1965. He was promoted in the year 1974 as Nayak and was posted at Ambala. Subsequently he was promoted as Head Constable in the year 1985. He was working as Head Constable in KJJY Khalanpur Yard Saharanpur, where he was placed under suspension on 16.2.1990 on the charges of demanding Rs. 50/- as illegal gratification and Sub Inspector R.K. Meena found him while the transaction was in progress when he came on the spot along with one Har Pal Singh. Suspension order was served on the plaintiff and finally he was dismissed. The order of dismissal was challenged in a departmental appeal, the order awarded during disciplinary proceedings was modified and he was compulsorily retired. The allegations were specifically denied by the plaintiff during departmental proceedings and his defence was that he had been implicated at the instance of Sub Inspector R.K. Meena as plaintiff had previously lodged a complaint against him. The orders of disciplinary authorities were the subject matter in the civil suit. Number of issues were framed. Oral as well as documentary evidence were led on behalf of the plaintiff. Issues no. 1 and 2 was decided simultaneously where the orders dated 31.5.1991 , 26.6.1992 and 1.2.1993 are void, arbitrary and nullity for the reasons raised in paragraphs 13 of the plaint and issue no. 2 to grant relief to which the plaintiff is entitled to.
6. The trial court was of the view that the allegations leveled against the plaintiff of accepting illegal gratification from three persons namely Rais, Kallu and Asgar, were not substantiated as they were not examined as witnesses during departmental proceedings. Thus, there was no evidence whatsoever to establish that any money passed between the aforesaid three persons and plaintiff. Shri R.K. Meena Sub Inspector, was also not examined and, therefore, the plaintiff was deprived of an opportunity of cross examination, consequently, the order of punishment was nullity for want of proper opportunity to the plaintiff. The trial court decreed the suit vide judgment and decree dated 15.12.2003 declaring the judgment and orders dated 31.5.1991 , 26.6.1992 and 1.2.1993 as baseless, null and void, and allowed all the benefits including back-wages, allowances, promotion, and seniority in accordance with relevant rules.
7. Union of India challenged the judgment of the trial court in first appeal which was also dismissed vide judgment and order dated 3.3.2005 by the Special Judge/Additional District Judge, Court 4, Saharanpur, in Civil Appeal 5 of 2004. The courts below were of the view that the provision of Administrative Tribunals Act 1985, is not applicable to an employee of Railway Protection Force. The courts below had summoned record of another case relating to another employee of Railway Protection Force regarding which Original Suit No. 337 of 1983 was instituted but the trial court record was sent to the Administrative Tribunal on the ground that civil suit is not maintainable. The Tribunal sent back the record with a finding that the provisions of Administrative Tribunals Act 1985 is not attracted in the case of an employee of armed forces. It was only thereafter the court came to a conclusion that the civil court had jurisdiction to hear and decide the suit in which relief of declaration has been sought.
8. Shri Govind Saran has placed reliance on the decision in the case of Union of India Vs.Prama Nanda ( AIR 1989 SC 1185). The decision cited by the counsel for the appellants does not relate to an employee of R.P.F and question of jurisdiction of civil court was not decided in the said case. It was only held that the Tribunal could exercise only such powers which the Civil Court or the High Court could have exercised by way of judicial review. It is neither less nor more. Therefore, it was held that the Tribunal is just a substitute to the civil court and High Court.
9. I am of the view that this decision does not help the appellants at all since it was a case where the provisions of Administrative Tribunals Act was applicable and, therefore, there was no dispute regarding jurisdiction of the Tribunal whereas in the instant case the plaintiff was working in the Railway Protection Force and the civil court was satisfied that the Administrative Tribunal Act was not applicable, therefore, the orders passed in departmental proceedings was prayed to be declared null and void. In the circumstances, I come to the conclusion that the counsel for the appellants has not been able to show any law in support of his contention that suit was not maintainable and the judgment and decree of the courts below are without jurisdiction. The first question of law raised in this second appeal is devoid of substance and does not merit consideration in the instant case.
10. So far as proper opportunity of defence to the deliquant employee is concerned, counsel for the appellants placed reliance on the decision in case of Syed Rahimuddin Vs. Director General, CSIR and others ( 2001) 9 SCC 575. This is a decision that was given on merit on the question of natural justice. However, it was held that judicial review or finding of fact arrived at in departmental inquiry can be interfered with by the court only when there are no materials for the said conclusion, or when on the materials, the conclusion cannot be that of a reasonable man.
11. Another decision relied by the counsel for the appellant is Union of India Vs. H.C. Goel AIR 1964 SC 364( V 51 C 46) in support of contention that the court can enquire whether the order is based on no evidence and it is apparent that it was a biased exercised of powers.
12. In the instant case, the suit was instituted. The orders passed in departmental inquiry were examined in civil suit and courts below came to a conclusive finding of fact that the allegations of acceptance of illegal gratification was not substantiated by any evidence whatsoever. No witness was produced to substantiate the giving and acceptance of money and, therefore, the plaintiff was deprived of opportunity of cross examination. The trial court as well as appellate court arrived at a conclusion that the orders of the disciplinary authorities are without any evidence and, therefore, they were declared to be arbitrary, null and void. In view of these findings, second substantial question of law on behalf of the appellants is also not worth consideration. Besides, I am not inclined to interfere in exercise of powers under Section 100 C.P.C.. It is well settled principle of law that High Court, in Second Appeal, under Section 100 C.P.C. can exercise jurisdiction only if there exists substantial question of law. The Apex Court has elucidated and analysed as to in what circumstances a question of law can be said to be substantial question of law in the cases of Santosh Hazari Vs. Purushottam Tiwari (2001) 3 SCC 179, Govindaraju Vs. Mariamman(2005) 2 SCC 500, Rajeshwari Vs. Puran Indoria (2005) 7 SCC 60, principle laid down is that substantial question must be debatable, not previously settled by law of the land or a binding precedent and answer to the same will have material bearing as to the rights of the parties before the court.
13. I am not satisfied that any substantial question of law worth consideration, arises in this Appeal. The second appeal is devoid of merit and is dismissed.
Cost on parties.
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