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STATE & ORS v LAXMI NARAIN - SAC Case No. 22 of 1999 [2005] RD-RJ 1461 (21 September 2005)

SA(C) 22/99 //1//

Special Appeal (Civil) No.22/1999

State of Rajasthan & Ors Vs. Laxmi Narain .

(In SB Civil 1st App.No.95/91)

Date of Order ::: 21/09//05

Hon'ble Mr. Justice V.K.Bali

Hon'ble Mr. Justice Ajay Rastogi

Mr. J.K.Agrawal Addl.Govt.Adv., for appellants (defendants)

Mr. R.S.Rathore ) for respondents (plaintiff)

Mr. Shakti Singh )

(Ajay Rastogi, J.)

It is defendants' special appeal filed against order of learned Single Judge, dt.04/03/97 dismissing Civil First Appeal No.95/91 and affirming judgment & decree dt.22/12/90 passed by Additional

District Judge Dholpur in Civil Suit No.18/83 (28/79).

Facts, in brief, relevant for examining controversy, are that respondent (plaintiff) was appointed after his regular selection on the post of

Constable in Rajasthan Police vide order dt.07/08/74 on two years' probation, but because of unsatisfactory service during probation, his services were terminated vide order dt.25/06/76 which is reproduced as under : -

"Constable Laxminarayan No.87-A.P., was appointed vide this office D.O.E.No.466 dated 07/08/74 on two years probation. During this period, his work was found unsatisfactory. He is habitual absentee and his general reputation has been reported to be very bad.

He has also not undergone recruits training as yet. Const. Laxminarayan No.87

A/P is discharged from service with immediate effect. His absence period may be counted as

F.O.L. Sd/- Dy.Supdt.of Police, Bharatpur"

After termination of his service vide order

SA(C) 22/99 //2// dt.25/06/76, respondent employee served legal notice

U/s 80 CPC on 22/03/79 and thereafter instituted civil suit underO.7, R1, CPC, against order of his termination before the Court of District Judge

Bharatpur on 02/07/79. Written statement was filed on behalf of defendants (appellants) and on the basis of pleadings, in all 11 issues were framed including crucial issues viz. -

(a) Whether civil suit filed by plaintiff employee on 02/07/79 against the order dt.25/06/76 was barred in view of

Rajasthan Civil Services (Service Matters

Appellate Tribunals) Act, 1976 ("1976 Act") ?


(b) Whether order of termination dt.25/06/76 is stigmatic, and has been passed by way of penalty without holding any inquiry & in non-compliance of principles of natural justice ?

Learned trial Judge on both the issues held that since order of termination was passed on 25/06/76 and the 1976 Act has come into force from 01/07/76, as such S.10 of 1976 Act which bars filing of civil suit in service matters would not have come into way of plaintiff, and suit was held to be maintainable and it was further held that order of termination dt.25/06/76 cannot be said to be termination simpliciter which is stigmatic passed as a measure of penalty without holding any disciplinary inquiry, therefore, plaintiff's suit was decreed by learned Additional

District Judge, Dholpur, vide judgment & decree dt.22/12/90, against which appellant defendant preferred first appeal before learned Single Judge who

SA(C) 22/99 //3// has also dismissed the first appeal summarily on the ground that provisions of 1976 Act particularly S.10 whereof which bars entertaining service matter by civil court will not be attracted in view of the fact that services of plaintiff were terminated prior to coming into force of 1976 Act and has not found any illegality in the findings recorded by trial Court with regard to order of termination. Hence this special appeal.

Shri J.K.Agrawal, Additional Govt. Advocate for the State (appellants) has urged that being a regular first appeal filed by appellant, learned Single

Judge was under obligation to examine all issues so as to consider & re-appreciate all material on record,examined by learned trial Court, which learned the Single Judge failed to do so, in such circumstances, without going into merits of this special appeal, the matter deserves to be remanded back for consideration of first appeal afresh after taking note of all submissions made for examining order of termination dt.25/06/76.

Shri Agrawal has further urged that both, learned Single Judge and trial Judge have committed serious error of law in arriving at the conclusion that the 1976 Act would not be applicable for the reason that order of termination was passed a few days before its commencement. According to him, the suit was filed by respondent plaintiff on 02/07/79, indisputably the

Act of 1976 has come into force and S.10 of the Act bars the jurisdiction of civil court in respect of service matters referred to in S.2(f) of Act. In this view of matter, according to Shri Agrawal, very finding

SA(C) 22/99 //4// recorded by trial Court as well as by learned Single

Judge are not legally sustainable and deserves to be set aside.

Shri Agrawal has also urged that finding recorded with regard to order of termination to be stigmatic, for which inquiry was required to be initiated, is totally perverse. According to him order of termination has been passed in due compliance of

R.36 of Rajasthan Police Subordinate Service Rules, 1974, and it cannot be said to be stigmatic order, and being a probationer, no right was otherwise conferred to hold the post, thus appellant was not under obligation to hold any disciplinary inquiry; in such circumstances, finding recorded in this regard by learned trial Court affirmed by learned Single Judge without examining evidence on record is not legally sustainable.

In support of his contentions, Shri Agrawal has relied upon decisions of Apex Court in State of

Punjab Vs. Sukhwinder Singh (2005 AIR SCW 3477),

Municipal Committee, Sirs Vs. Munshiram (2005 AIR SCW 762), State of Punjab Vs. Balbir Singh (AIR 2004 SC 4655) and Registrar High Court of Gujarat Vs. CG Sharma

(2004 AIR SCW 6687) and so also on some other decisions on the same point and submitted that termination was simpliciter and plaintiff being on probation, no right was conferred on him and the fact that his performance was found to be unsatisfactory and he was considered to be unfit to be retained in service, and as held by the

Apex Court (supra) departmental inquiry was not required to be initiated and the order of termination

SA(C) 22/99 //5// has been passed in accordance with law.

Per Contra, Shri R.S.Rathore, Counsel for respondent plaintiff has urged that learned Single

Judge & trial Judge after going through material on record has categorically recorded a finding of fact that bar as provided U/s 10 of 1976 Act would not have come in way of plaintiff as the order impugned by him was passed before the 1976 Act came into force and as such finding recorded (supra) does not require any interference by this Court.

As regards merits, Shri Rathore has urged that a bare reading of the order of termination dt. 25/06/76 reflects about character and imputes allegations upon plaintiff, which is a misconduct as alleged by appellant while passing impugned order of termination,for which undisputably, no disciplinary inquiry was held in the absence whereof, action of appellant in terminating services of plaintiff vide order dt.25/06/76 in no manner can be said to be termination simpliciter and on the contrary, it is stigmatic and has been passed as a measure of penalty without due compliance of principles of natural justice and no error has been committed while recording finding of fact after due appreciation of evidence on record which require no interference by this Court.

So far as judgments cited by Shri Agrawal are concerned, Shri Rathore urged that all cited judgments are of termination of services of probationers by order simpliciter, and arguments advanced were that if the Court lift the veil and examine the same, it will find foundation behind passing of the order of

SA(C) 22/99 //6// termination simpliciter being punitive in nature and no inquiry was held before passing order of termination; or are the cases where some preliminary inquiry was held and without taking note of the same, services of probationer were terminated by order simpliciter, but in present case, order of termination on the very face of it, is stigmatic and theory of lifting the veil and examining the motive behind passing such termination, which has been considered by the Apex Court, does not arise and are distinguishable in facts situation of this case.

Shri Agrawal has further contended that services of plaintiff were terminated way back in June, 1976 and he is not under employment of the appellants for last 29 years; his services were terminated because of his unsatisfactory record of service during probation inasmuch as he was a probationer who has otherwise no right to hold the post, and no such circumstances have been brought on record nor plaintiff has come out with a case that he was not gainfully employed elsewhere for these 29 years and if decree of reinstatement is affirmed particularly when he has crossed the age of 50 years; he is otherwise unfit to serve in discipline force and during pendency of litigation by way of execution, he has already been paid towards salary about three lacs rupees which can be considered to be a compensation in lieu of reinstatement.

As against above, Shri Rathore has urged that once termination was declared to be null & void being violative of principles of natural justice,

SA(C) 22/99 //7// reinstatement in service is a consequence whereof, latches cannot be attributed to the plaintiff when he is prosecuting his right continuously before the Court and part of salary towards arrears to the tune of

Rs.three lacs was paid, as he became entitled for continuity of service without any break, and only by making part payment would not absolve the appellant from rest of payment towards salary to which plaintiff is otherwise entitled for as a consequence of his termination having been held to be non-est and bad in law.

We have considered rival contentions of both the parties and with the assistance of Counsel, have also perused material on record.

S.10 of 1976 Act imposes a bar upon civil court making exclusion of its jurisdiction to entertain any matter arising under or provided for by the Act.

S.10 reads as under : -

"10. Jurisdiction of the Civil

Court excluded. - No suit or proceedings shall lie or be instituted in any Civil

Court with respect to any matter arising under or provided for by this Act."

A bare reading of afore quoted S.10 makes it explicit that jurisdiction of Civil Court is excluded and no suit or other proceedings can be instituted in a civil court with respect to matters arising under or provided for by this Act. Expression, "Service matters", is defined in S.2(f) of 1976 Act which provides as under :-

"2. Definitions.- In this Act, unless the subject or context otherwise requires -

(f) "Service matters" means any one or

SA(C) 22/99 //8// more than one of the following matters relating to a Government servant :-

(i) Seniority; (ii) Promotion;

(iii) Confirmation; (iv) Fixation of pay;

(v) An order denying or varying pay, allowances, pension and other service conditions to the disadvantage of a

Government servant, otherwise than as a penalty;

(vi) Cases of reversion while officiating in a higher service, grade or post to lower service, grade or post otherwise than as a penalty;

(vii) Withholding the pension or denying the maximum pension otherwise than as the penalty;

(viii) Any other matter notified by the government." (Emphasis added)

It is not in dispute that services were termination vide order dt.25/06/76 whereas the1976 Act came into force from 01/07/76 but plaintiff filed suit questioning the order of termination dt.25/06/76 before the civil court undisputably on 02/07/79 and much before institution of civil suit, the 1976 Act has already come into force from 01/07/76. In our considered opinion, remedy available for being resorted to by an incumbent has to be considered on the date when the action has been initiated against the impugned decision before competent court of jurisdiction and not on premise of the date of order which has has been impugned before the competent court. Thus viewed, the bar as provided U/s 10 of 1976 Act applies in fact situation of present case and the premise, on which bar of S.10 has been excluded by courts below, that order of termination was prior to commencement of the 1976

Act, is not legally sustainable.

But the fact still remains as to whether the

SA(C) 22/99 //9// order which is alleged to have been passed as punitive without holding an inquiry as provided under relevant service rules, can still be said to be covered in terms of "service matters" as defined in S.2(f) of 1976 Act, and can it be questioned by filing appeal under the 1976 Act.

S.2(f) of 1976 Act clearly postulates that if an order has been passed otherwise than as a penalty, an appeal provided under 1976 Act is maintainable, once plaintiff has filed suit specifically with an objection that order of termination dt.25/06/76 is stigmatic and has been passed by way of penalty without holding disciplinary inquiry,which, in our considered opinion, does not fall U/s 2(f) of 1976 Act, which defines

"service matters", ibid, and in such circumstances, keeping in view the fact that it was not covered U/s 2

(f) of the 1976 Act, the bar as provided U/s 10 whereof would not have come into way of plaintiff for instituting civil suit before competent court of jurisdiction. We are not therefore in agreement with the reasons recorded by trial Court and also by learned Single Judge but, in our opinion, in view of the fact that the impugned order of termination being stigmatic in nature as alleged by plaintiff, having been passed without holding disciplinary inquiry under service Rules, was not covered by term, "service matters", as defined in S.2(f), and the bar as provided in S.10 of the 1976 Act would not exclude jurisdiction of civil court in case of present plaintiff for having instituted civil suit at hand.

In case of a probationer whose services are

SA(C) 22/99 //10// found to be unsatisfactory during period of probation, appointing authority may consider to terminate his services as provided U/r 36 of the 1974 Rules, which as it then was, provides as under : -

"R.36: Unsatisfactory progress during probation:- (1) if it appears to be the

Appointing authority at any time during or at the end of probation, that a member of the service has not made sufficient use of his opportunities or that he has failed to give satisfaction, the appointing authority may revert him to the post held substantially by him immediately preceding his appointment, provided he holds a lien thereon or in other cases, may discharge him from service:

Provided that the Appointing Authority may extend the period of probation of any member of the service by specified period not exceeding one year in aggregate.

(2) A probationer reverted or discharged from the service during or at the end of the period of probation under sub rule (1) shall not entitled to any compensation."

R.36 of 1974 Rules, as it then was, supra, clearly postulates that if probationer has not made sufficient use of opportunities or has failed to give satisfaction to the appointing authority, then it may revert him to the post held substantively or may discharge him from service. Thus, R.36 of 1974 Rules make the appointing authority competent to discharge if probationer has failed to make use of opportunities as extended or has failed to give satisfaction.

SA(C) 22/99 //11//

In present case, we find from very impugned order of termination it imputes upon his character, and conduct, which undisputably is stigmatic and is punitive in nature and has been passed without holding disciplinary inquiry under service Rules and even R.36 of 1974 Rules does not empower appointing authority under the garb of satisfaction to record about his conduct & character while discharging from service. In our considered opinion, the impugned order of termination, on its bare reading, is stigmatic and has been passed as a measure of penalty without holding disciplinary inquiry or even to show cause notice which is violative of principles of natural justice and we are in complete agreement with concurrent findings recorded by trial Court so also by learned Single

Judge in this regard.

The judgments, on which Shri Agrawal has placed reliance, are not applicable in facts of present case. In some of the cases cited by Shri Agrawal, the

Apex Court examined the cases where order of termination is simpliciter and before discharge from service, some preliminary inquiry has been conducted for satisfaction of the authority in taking decision for retention or not; some are the cases where text of the Rule, which held appointing authority competent to terminate services of probationer has been reproduced and the Apex Court has observed that mere reference or reproduction to the text of statutory rule even if reflects about working of a probationer, it cannot be said to be stigmatic, but in the present case, order of termination, as referred to above, in our considered

SA(C) 22/99 //12// opinion, clearly depicts about conduct, and character of probationer (plaintiff), which is clearly stigmatic in character, which has been passed as a measure of penalty without holding disciplinary inquiry. Hence the decisions cited at the bar are not applicable in the facts of present case.

Ordinarily if order of termination has been found to be stigmatic having passed without holding any inquiry by appointing authority before passing order of termination dt.25/06/76, which has caused prejudice to probationer (respondent-plaintiff), reinstatement in service as a consequences whereof would follow and inquiry could have been held by defendant appellant with respect to imputation of the facts stated in the order of termination dt.25/06/76, being stigmatic, and so far as payment of salary during intervening period is concerned, it will depend upon ultimate fate of inquiry to be initiated by appellant.

Civil Court can mould the relief and pass a decree accordingly after taking into consideration intervening circumstances and merely because order of termination has been found to be bad in law, that will not constitute to award decree of reinstatement with back wages, and that being legal position, in such peculiar facts situation of present case, question arises as to whether if the plaintiff has remained out of employment for last 29 years and he served for less than two years as a probationer was on test and temporary employee and has no right to the post, in such circumstances, particularly when he has crossed 50 years of age by now and this fact cannot be ruled out

SA(C) 22/99 //13// that he must be serving else where, can now be reinstated in service in a discipline force against whom there were allegations of bad reputation, habitual absentee, having not undergone recruits training, and over-all unsatisfactory work during period of probation, for which inquiry might not have been initiated against him. However, it has been informed to us that plaintiff has been paid Rs.three lacs during intervening period in execution of the impugned decree, so in the facts & circumstances of the case, we consider it proper that what has been paid as arrears of salary as a consequence of impugned decree be considered to be total sum of full & final compensation in lieu of reinstatement.

Upshot of above discussion is that this special appeal is partly allowed. The judgment & decree dt.22/12/90 passed by Additional District Judge Dholpur affirmed by learned Single Judge, stands modified to the extent that the amount, which has been paid to the plaintiff in execution of impugned decree, be considered as a compensation in lieu of reinstatement as a full & final settlement. No order as to costs.

(Ajay Rastogi), J. ( V.K.Bali ), J.



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