MANU/RH/0395/2022

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

S.B. Civil Second Appeal No. 56/2021
Decided On: 14.02.2022
Appellants: Rajasthan State Road Transport Corporation and Ors.
Vs.
Respondent: Moolchand Choudhary
Hon'ble Judges/Coram:
Prakash Gupta, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Prateek Mathur, Advocate
For Respondents/Defendant: Babu Lal Gupta, Advocate
JUDGMENT
Prakash Gupta, J.
1 . This Civil Second Appeal under Section 100 CPC has been filed by the appellants-
defendants (for short, 'the defendants') against the judgment and decree dated
12.1.2021 passed by Addl. District Judge No. 7, Jaipur Metropolitan, Jaipur (for short,
'the first appellate court') in Civil Regular Appeal No. 4/2019, whereby the first
appellate court dismissed the appeal and affirmed the judgment and decree dated
5.12.2018 passed by Addl. Civil Judge No. 2, Jaipur Metropolitan (for short, 'the trial
court') in Original Civil Suit No. 700/2009 decreeing the plaintiff's suit for declaration
and setting aside the punishment/termination order dated 9.6.2009 as also the appellate
order dated 16.9.2009.
2. Facts of the case, as per the respondent-plaintiff (for short, 'the plaintiff'), are that in
the year 1986, he was appointed as a Conductor with the defendants. On 15.12.2008,
he was asked to discharge his duties on Jaipur Makrana route at 6.15 O' clock. On the
basis of false complaint, allegation was levelled against the plaintiff that without giving
prior information and without getting the leave sanctioned, the plaintiff absented
himself from duty uptil 29.12.2008, due to which the Corporation sustained revenue
loss of Rs. 3894/-. It was also averred by the plaintiff that without serving copy of the
charge sheet upon him and without giving him an opportunity to file his defence
statement, on 13.2.2009 enquiry officer was appointed and subsequently vide order
dated 9.6.2009, the plaintiff's service was terminated. The plaintiff filed an appeal
before the Appellate Authority, which also came to be dismissed vide order dated
16.9.2009. The plaintiff filed a Civil Suit before the Trial Court. Necessary issues were
framed. Evidence was led by both the parties and after hearing the arguments of both
the sides, the Trial Court dismissed the plaintiff's suit for declaration vide judgment and
decree dated 8.10.2013. The plaintiff filed a Civil First Appeal before the First Appellate
Court, which was partly allowed by First Appellate Court and accordingly the judgment
and decree dated 8.10.2013 passed by the Trial Court was set-aside and the matter was
remanded to the Trial Court with a direction to decide issue no. 1 and 2 in accordance
with law after giving proper opportunity of hearing to both the parties and after detailed
analysis of the material on record. Thereafter the Trial Court vide its judgment and

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decree dated 5.12.2018 decreed the plaintiff's suit for declaration and set-aside the
punishment order dated 9.6.2009 and appellate order dated 16.9.2009. Being aggrieved
by the same, the defendants filed Civil Regular Appeal before the First Appellate Court,
which came to be dismissed vide judgment and decree dated 12.1.2021. Hence, this
second appeal has been filed. Learned counsel for the defendants submits that the
present dispute being an Industrial Dispute, the Civil Court had no jurisdiction to try the
suit. However, the learned Courts below committed material illegality while decreeing
the plaintiff's suit and therefore, the impugned judgments and decrees are not legally
sustainable and thus the second appeal deserves to be admitted.
3. In support of his contentions, he has placed reliance on the following judgments:
i) Milkhi Ram Versus Himachal Pradesh State Electricity Board reported in
MANU/SC/0839/2021 : (2021) 10 Supreme Court Cases 752
ii) Rajasthan State Road Transport Corporation and Another Versus Krishna
Kant and others reported in MANU/SC/0786/1995 : (1995) 5 Supreme Court
Cases 75
iii) Rajasthan State Road Transport Corpn. and Others Versus Zakir Hussain
reported in MANU/SC/0496/2005 : (2005) 7 Supreme Court Cases 447
iv) Rajasthan SRTC and Another Versus Ugma Ram Choudhary reported in
(2006) 1 Supreme Court Cases 61
v) Rajasthan SRTC and others Versus Khadarmal reported in
MANU/SC/2560/2005 : (2006) 1 Supreme Court Cases 59
On the other hand, learned counsel for the plaintiff has defended the impugned
judgments and decrees and submits that without giving an opportunity to the plaintiff to
defend his case and without giving opportunity of proper hearing, the punishment order
was passed and principle of natural justice was violated. In support of his contentions,
he has placed reliance on the following judgments:
i) Rajasthan State Road Transport Corporation and Another Versus Bal Mukund
Bairwa reported in MANU/SC/0181/2009 : (2009) Supreme Court Cases 299
ii) Rajasthan State Road Corporation & Anr. Versus Narain Singh (S.B. Civil
Second Appeal No. 396/1996; decided on 23rd September, 2015)
iii) RSRTC, Jaipur & Ors. Versus Mahavir Prasad Sharma (S.B. Civil Second
Appeal No. 296/2000; decided on 15.1.2014)
4. Heard. Considered.
5 . The judgment passed by the Hon'ble Apex Court in the case of Milkhi Ram (supra)
relied upon by counsel for the defendants does not apply to the facts of the instant case
because in the said case, controversy was as to whether the plaintiff had completed 240
days of uninterrupted service, which is not the situation here in this case.
6. Other judgments relied upon by counsel for the defendants also do not apply to the
facts of the instant case.
7. From the material on record, it is evident that it was pleaded by the plaintiff in his
plaint that without serving a copy of the charge sheet upon him and without giving an

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opportunity to defend his case, vide order dated 13.2.2009, the Enquiry Officer was
appointed. When the plaintiff obtained copy of the charge sheet from the Enquiry
Officer, copy of the documents in relation to the said charge sheet were not supplied to
him. It was further averred by the plaintiff that during enquiry, no departmental
nominee was appointed and the Enquiry Officer acted as a departmental nominee and
conducted the enquiry only on the basis of oral evidence of the complainant, without
summoning and taking on record the medical certificates and without giving an
opportunity to the plaintiff to produce evidence and documents to defend his case,
violating the principles of natural justice. It was also averred that prior to issuing the
punishment order, report of departmental enquiry was not provided to him. It was also
averred that different Circulars were issued by the Corporation from 2005 to 2009, by
which permission was granted to dispose of the cases while awarding proportionate
punishment, but the same was not done in the case of plaintiff while terminating the
plaintiff's service. The plaintiff filed the departmental appeal, but without considering
the grounds, his appeal was also dismissed. The order passed by the Appellate
Authority being a non speaking order is liable to be set-aside.
8 . It is revealed from the aforesaid that the plaintiff challenged his termination order
dated 9.6.2009 as also the order dated 16.9.2009 passed by the Appellate Authority
mainly on the ground of violation of equality and principle of natural justice. In this
regard, Hon'ble Apex Court in the case of Bal Mukund Bairwa (supra) has held as under:
"48. In a case where no enquiry has been conducted, there would be violation
of the statutory Regulation as also the right of equality as contained in Article
14 of the Constitution of India. In such situation, a civil suit will be
maintainable for the purpose of declaration that the termination of service was
illegal and the consequences flowing therefrom. However, we may hasten to
add if a suit is filed alleging violation of a right by a workman and a
corresponding obligation on the part of the employer under the Industrial
Disputes Act or the Certified Standing Orders, a civil suit may not lie. However,
if no procedure has been followed as laid down by the statutory Regulation or
is otherwise imperative even under the common law or the principles of natural
justice which right having arisen under the existing law, sub-para (2) of
paragraph 23 of the law laid down in Premier Automobiles Ltd. (supra) shall
prevail."
(Emphasis supplied by me)
9 . In the case of Mahavir Prasad Sharma (supra), the Coordinate Bench of this Court
while relying on the aforesaid judgment has held that where termination order was
challenged on the ground of violation of equality and principles of natural justice, Civil
Courts have jurisdiction to try the suit. This judgment has been upheld by the Hon'ble
Apex Court in SLP No. (s) 10788/2014-RSRTC and Others Versus Mahavir Prasad
Sharma; decided on 21.7.2014.
1 0 . In view of the above discussion, I am of the opinion that the Civil Court has
jurisdiction to try the suit filed by the plaintiff.
11. Both the courts below having rightly considered the evidence led by the parties in
the suit and there being concurrent finding of facts recorded by both the courts below,
this Court is not inclined to interfere with the same. Even otherwise, when there has
been a concurrent finding with regard to violation of principles of natural justice and the
counsel for the defendants having failed to point out any question of law much less
substantial question of law, this second appeal is liable to be dismissed, which stands

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dismissed accordingly.
12. Consequent upon the dismissal of the appeal, the stay application and all pending
applications, if any, also stand dismissed accordingly.
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