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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

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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.   

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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  

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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  

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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  

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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.”  

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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  

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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  

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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  

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& 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  

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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.   

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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

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“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.”

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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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