RAGINI & ANR Vs STATE OF KARNATAKA & ORS
Bench: DIPAK MISRA,PRAFULLA C. PANT
Case number: Special Leave Petition (crl.) 5900 of 2014
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Reportable
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.
2. We have heard learned counsel for the parties and
perused the papers on record.
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3. 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.
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4. 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.
5. 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?
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(IV) Whether the plaintiff is entitled for the prayer sought for?”
6. 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.
7. 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.
8. The defendant (present appellant) thereafter,
challenged judgment and decree passed by first appellate
court before the High Court, which was registered as Second
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Appeal No. 172 of 2013. The High Court dismissed the
Second Appeal. Hence, this appeal before us through special
leave.
9. 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.
10. 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.
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11. 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.
12. 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
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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.
13. 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
another1, 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
1 (1999) 8 SCC 396
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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.”
14. 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
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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.
15. 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
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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.