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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.