RAGINI & ANR Vs. STATE OF KARNATAKA & ORS

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 3563 of 2015, Judgment Date: Apr 13, 2015

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 3563 OF 2015
                (Arising out of S.L.P. (C) No. 5900 of 2014)

The Gujarat Maritime Board                                     ... Appellant

                                     Versus

G.C. Pandya                                                    ...Respondent


                               J U D G M E N T

Prafulla C. Pant, J.


      This appeal is directed against order dated 18.12.2013, passed by  the
High Court of Gujarat in  Second Appeal No. 172 of 2013 whereby  said  Court
has dismissed the appeal upholding the judgment and  decree  passed  by  the
first appellate court and the trial court.

We have heard learned counsel for the parties  and  perused  the  papers  on
record.

Brief facts giving rise to this appeal are that respondent G.C.  Pandya  was
Deputy Engineer (civil) with the appellant Gujarat Maritime Board.   He  was
charge-sheeted for certain irregularities allegedly committed by him  during
the period 1982-1984, due to which the appellant suffered huge  losses.   In
said enquiry the  plaintiff/respondent  G.C.  Pandya  was  held  guilty  and
awarded punishment of "censure"  on  26.6.2002.   He  was  superannuated  on
30.6.2002  from  service  as  Superintending  Engineer.    He   (respondent)
instituted Civil Suit No. 569 of 2002 before  Civil  Judge,  Porbandar,  for
declaration that the departmental enquiry held against  him  and  punishment
awarded are illegal.   The  plaintiff  further  sought  his  promotion  with
effect from 1.1.2002.  It is pleaded in the  plaint  that  the  departmental
enquiry was purposely kept pending with a motive to deny  promotion  to  the
plaintiff.  It was alleged by the plaintiff  that  the  allegations  in  the
charge sheet were false, and the enquiry was initiated  to  allow  promotion
of juniors to the plaintiff.



Strangely, though the defendant Gujarat Maritime Board  (present  appellant)
was served and represented through its counsel, but  it  did  not  file  any
written statement contradicting the facts alleged in the plaint.

Since no written statement was filed by the defendant/ appellant, there  was
no question of framing issues in the suit,  and  judgment  could  have  been
pronounced under Order VIII Rule 10 of the Code  of  Civil  Procedure,  1908
(for short "C.P.C.").  However, the trial court formulated the questions  to
be decided in the suit as under: -
"(I)  Whether the  plaintiff  establishes  that,  the  charge  sheet  issued
against him and thereafter the order of the departmental inquiry and of  the
punishment is illegal, unconstitutional and required to be rejected?

(II)  Whether the plaintiff  establishes  that  the  act  of  the  defendant
preventing the plaintiff from promotion on the post  of  Chief  Engineer  is
illegal, unconstitutional and requires to be rejected?

(III) Whether the plaintiff establishes  that,  by  treating  the  promotion
with effect from 1/1/2002 the plaintiff is entitled and  rightful  to  avail
all the rights of the said post?

(IV)  Whether the plaintiff is entitled for the prayer sought for?"


The trial court considered the deposition of plaintiff G.C. Pandya  and  the
documentary  evidence  Ex.  14  to  Ex.  25,  and  answered  each   question
discussing the evidence on record.  Submissions of the learned  counsel  for
the parties were considered and it is only thereafter, the trial court  (2nd
Additional Senior Civil Judge, Porbandar) passed  the  judgment  and  decree
dated 7.1.2009 in the suit.
Aggrieved by said judgment and decree,  the  defendant  (present  appellant)
filed Regular Civil Appeal  No.  95  of  2009  before  the  District  Judge,
Porbandar.  After  hearing  the  parties,  said  Regular  Civil  Appeal  was
dismissed by the Additional District Judge,  Porbandar,  vide  judgment  and
order  dated  29.9.2012.   The  first  appellate  court  framed  points   of
determination and thereafter decided the appeal concurring  with  the  trial
court.
The  defendant  (present  appellant)  thereafter,  challenged  judgment  and
decree passed by first appellate court before  the  High  Court,  which  was
registered as Second Appeal No. 172 of 2013.  The High Court  dismissed  the
Second Appeal.  Hence, this appeal before us through special leave.
Learned counsel for the appellant  argued  before  us  that  no  substantial
question of law was framed by the High Court, as such,  the  impugned  order
passed by the High  Court  is  liable  to  be  set  aside.   It  is  further
contended that the plaintiff had not completed three  years  of  service  as
Superintending Engineer, as such, he was not  entitled  to  be  promoted  as
Chief Engineer.
However, after going through  the  papers  on  record  and  considering  the
submissions of the learned counsel for the parties, we find little force  in
the above argument.  As  far  as  actual  period  served  as  Superintending
Engineer by the plaintiff is concerned, said fact should have  been  pleaded
specifically by the defendant/appellant, but it did not even  care  to  file
the written statement before the trial court.  When there was no  such  plea
before the trial court, we cannot set aside the concurrent findings of  fact
of the courts below.
As far as the question of formulation of substantial questions of law  in  a
second appeal is concerned, we agree that before admitting a Second  Appeal,
it is the duty of the High Court to formulate substantial questions  of  law
as required under Section 100 of C.P.C.  But, in the present case, from  the
impugned order it nowhere reflects that  the  second  appeal  was  admitted,
rather it shows that after hearing the parties the High Court  came  to  the
conclusion that there was no substantial question of  law  involved  in  the
appeal.  The High Court  has  rightly  taken  note  of  the  fact  that  the
defendant neither chose to file  written  statement  nor  led  any  evidence
before the trial court.

No doubt, the question of jurisdiction can be raised at any  stage,  but  in
the present case, there was no other forum for the plaintiff where he  could
have sought his remedy.  The High Court has observed that the  relief  could
not have been sought by the plaintiff  before  the  Gujarat  Civil  Services
Tribunal as the  defendant  was  simply  a  Board  and  not  covered  within
jurisdiction of said Tribunal.  It was not a  matter  to  be  heard  by  the
Central Administrative Tribunal either as the plaintiff was  not  a  Central
Government employee.  As such, we do not find  any  error  in  the  impugned
order passed by the High Court.

In a case where the written statement is not filed, the civil court has  the
jurisdiction to proceed under Order VIII Rule 10  of  C.P.C.   However,  the
orders are not required to be passed in mechanical  manner  in  exercise  of
the powers contained in the above mentioned provision  of  law.   In  Balraj
Taneja and another v. Sunil Madan and another[1], this Court has  laid  down
law in paragraphs 25 to 27 on this point, as under: -

"25. Thus, in spite of admission of a fact having been made by  a  party  to
the suit, the court may still require the plaintiff to prove the fact  which
has been admitted by the defendant. This is  also  in  consonance  with  the
provisions of Section 58 of the Evidence Act which provides as under:

"58. Facts admitted need not be  proved.-No  fact  need  be  proved  in  any
proceeding which the parties thereto or their agents agree to admit  at  the
hearing, or which, before the hearing, they agree to admit  by  any  writing
under their hands, or which by any rule or pleading in  force  at  the  time
they are deemed to have admitted by their pleadings:

Provided that the court may, in its discretion, require the  facts  admitted
to be proved otherwise than by such admissions."

26. The proviso to this section  specifically  gives  a  discretion  to  the
court to require the facts admitted to be  proved  otherwise  than  by  such
admission. The proviso corresponds to the proviso to Rule 5(1) Order 8 CPC.

27. In view of the above, it is clear that the court, at no stage,  can  act
blindly or mechanically. While enabling the court to pronounce  judgment  in
a situation where no written statement is filed by the defendant, the  court
has also been given the discretion to pass such order as it  may  think  fit
as an alternative. This is also the position  under  Order  8  Rule  10  CPC
where the court can either pronounce judgment against the defendant or  pass
such order as it may think fit."

In view of the law laid down by this Court, as above, we  are  of  the  view
that in the present  case  the  trial  court  has  not  acted  mechanically.
Rather  it  has  discussed  the  pleadings  and  the  evidence  led  by  the
plaintiff, and considered rival submissions of the parties.  The only  error
committed by the trial court is  that  instead  of  directing  defendant  to
consider promotion of plaintiff with effect from 1.1.2002, it  has  declared
the plaintiff to have been promoted as Chief Engineer with effect from  said
date without considering service record of  the  Officer  (plaintiff).   The
first appellate court and the High Court have  also  though  considered  the
arguments advanced before them,  but  erred  in  noticing  the  above  error
committed by the trial court.  As such, we have no option but to modify  the
decree passed by the courts below to the above extent.

For the reasons, as discussed above, we are not inclined to  interfere  with
the impugned judgment and decree passed by the courts below  except  to  the
extent as above.  Accordingly, the appeal is  partly  allowed  only  to  the
extent, that instead of treating the plaintiff to have  been  promoted  with
effect from 1.1.2002 as Chief Engineer, his case shall be considered by  the
defendant within a period of three months from today for  promotion  to  the
post of Chief Engineer with  effect  from  1.1.2002,  keeping  in  mind  the
findings recorded in the suit.  No order as to costs.


                                       ...................................J.
                                                               [Dipak Misra]



                                     .....................................J.
                                                          [Prafulla C. Pant]
New Delhi;
April 13, 2015.
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[1]    (1999) 8 SCC 396