Sri v R Raghunathan Vs Dr General Manager (Hr)

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 16.04.2022 PASSED IN R.A.NO.99/2021 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 15.03.2021 PASSED IN O.S.NO.1642/2013 ON THE FILE OF THE IX ADDITIONAL I CIVIL JUDGE AND JMFC, MYSURU.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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This matter is listed for admission. I have heard appellant

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party-in-person and learned counsel appearing for respondent Nos.1 and 3.

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This second appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court.

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The factual matrix of case of the plaintiff before the Trial Court while seeking the relief of declaration is to declare

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that punishment order dated 29.09.2011 issued by disciplinary authority as null and void and also sought for mandatory injunction and other consequential relief. It is the specific pleading before the Trial Court that plaintiff was engaged as a permanent employee of M/s. B.E.M.L. Company from 30.09.1974 to 30.11.2012 in various capacities and finally superannuated as Senior Manager (HR) from the Mysore complex of the company with effect from 30.11.2012. Prior to his retirement from the Mysore complex, the plaintiff was transferred from the marketing division of the company at its KFG production unit during March, 2003 and ever since then the plaintiff is staying at Mysore along with his wife, who is a paralytic attack patient.

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By virtue of experience and qualification, the plaintiff was functioning as one of the most successful officer in HRD and was assigned to be the Enquiry Officer of domestic enquiries in the various units of the company. When plaintiff assigned to conduct two domestic enquiries at M/s.Vignyan Industries Ltd., Tarikere, Chikkamagalore District, (a sister concern of M/s. B.E.M.L. Ltd.,) during 16^th to 18^th July 2009 and

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subsequently based on the summons received from the Court, he was again deputed to adduce evidence before the Labour Court, Chikkamagalore. While on the official assignment at Chikkamagalore, the plaintiff was infected with Chicken guinea and was suffering from then on and off (from 24^th July 2009 and 14^th August 2009) and on 15.08.2009. The complaints of severe joint pains and fever got aggravated and finally when it became unbearable, he visited Aaditya Adhikari Hospital, Mysore, where he was admitted as an inpatient around 04.00 p.m for further medical management. In view of lack of food and bathing facilities at the hospital during the night, the plaintiff with the permission of the Director of the hospital, used to meet these two requirements by visiting his house at Vijayanagar Mysore and after reasonable control of the infection, the plaintiff got himself discharged from the hospital on 17.08.2009. One of the vested interest in the organization, the Vigilance Officer, who had to encounter receipt of advisory letter from the plaintiff, master-minded fabrication of the hospitalization of the plaintiff and got a memorandum issued to the plaintiff on his imaginary grounds, which inspite of vehement challenges by the plaintiff, was ultimately ensured

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that the plaintiff is awarded with a punishment at the fag end of his career.

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It is contented that as apart of his dedicated efforts and with an aim to get maximum efforts from all his subordinates, the plaintiff did report about the poor performance per-se of one of his subordinates and disciplinary action against her husband, who was reported upon by security department for involving in clandestinely taking out company material (for which he was issued with an advisory letter by the plaintiff) were all not to the taste of their kith and kin, who occupied post of importance at Corporate level, by virtue of promotion and did not get due consideration he deserved from the authorities concerned. It is also the contention that plaintiff did participated fully in the enquiry conducted against him and co-operated to the full without seeking permission for any adjournment. It is contented that at the time of receipt of the memorandum itself, it was noted that conducting of an enquiry against the plaintiff was noted as a foregone decision, even without waiting for receipt of the reply to the memorandum, which in fact was factually and convincingly replied. The

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Disciplinary Authority simply conveyed the decision of other vested interests at its order, without complying with the laid down requirements of issue of second show cause notice and extending the appeal provision. In the instant case, it is desired to submit that the Vigilance Officer, who played the role of complainant, the only prosecution witness, has also played a role in deciding the punishment to be awarded and decision making in the case. Since the enquiry against the plaintiff was dealt as an enquiry from vigilance.

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It is also further contented that in his defence, he has produced the oral evidence of the Director of the hospital, the Chief of B.E.M.L., HRD of Mysore complex and the Assistant Manager (Security), B.E.M.L., Mysore besides producing 35 documents evidences of his defence, whereas, the defendants relied on one uncorroborated evidence of the Investigating Officer only. Due to the efforts of the plaintiff with higher ups, he was advised to submit a letter for pardoning him and accordingly, a letter dated 11.08.2021 was submitted, which was also not acted upon for unknown reasons. Further, due to the repeated humiliations encountered in the day to day

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working in the same place, the plaintiff was constrained to take an extreme step of opting to go out of the organization by using “premature retirement” option and accordingly, submitted an application dated 07.11.2011, which was also turned down quoting reasons from vigilance angle. Hence, the application was filed.

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The defendant No.1 appeared through his counsel

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and filed written statement. The defendant Nos.2 and 3 were placed ex-parte. The defendant No.1 denied all allegation made against him in the suit and contend that suit of the plaintiff to be rejected at its threshold. The defendant No.1 further stated that the relief claimed by the plaintiff are pertaining to the service conditions and the plaintiff has raised certain ineligible and untenable claims after retirement from service. It is contented that Civil Court is precluded from enforcing claims pertaining to the service conditions of the employment. Hence, it is contented that suit is liable to be dismissed. It is also contented that when the enquiry was initiated against him, he participated in the said enquiry and availed opportunity to defend the charges. The enquiry committee submitted its

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report on 06.05.2011 and found the plaintiff guilty of all the charges levelled against him and copy of the report was given to him and sought for explanation. The plaintiff vide representation dated 11.08.2011 accepted the lapse on his part in availing the medical facilities and also requested to pardon him and close the issue as a special case and contend that inquiry report is not amenable to the judicial intervention and this Court while exercising civil jurisdiction cannot intervene in the administrative and disciplinary action of defendant No.1 and the same is a prerogative right of defendant No.1 to take action against the erring employee for proven acts of misconduct.

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It is contented that since matter was of a vigilance case, the CVO recommended punishment of either censure or withholding increment of pay with or without cumulative effect in accordance with the provisions of CDA Rules of the company. Accordingly, the management approved punishment of withholding one increment with cumulative effect vide order dated 29.09.2011. The plaintiff has undergone the punishment imposed. The defendant No.1 submitted that after a lapse of 4 months from the date of issuance of punishment order, the

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plaintiff submitted a plea requesting to rescind with the punishment imposed and reimburse Rs.5,031/towards medical treatment at Aaditya Adhikari Hospital. The action of the defendants against the plaintiff is well within service law applicable to the plaintiff. Hence, suit of the plaintiff is not maintainable.

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The Trial Court having considered the grounds which have been urged in the defence as well as in the plaint averments, framed the issues and allowed the parties to lead evidence. The plaintiff examined himself as P.W.1 and got marked the documents as Exs.P1 to P22. On the other hand, H.R. of the defendant No.1 company was examined as D.W.1 and got marked the documents as Exs.D1 to D14.

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The Trial Court having considered both oral and documentary evidence i.e. pleadings, defence as well as oral and documentary evidence, taken note of the fact that plaintiff participated in the said enquiry and availed the opportunity to defend the charges and an enquiry report is also submitted. When the plaintiff realizes his mistake, he gave the representation dated 11.08.2021 and accepted the lapse on his

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part in availing the medical facilities and also requested to pardon him. Hence, the Trial Court also taken note that the inquiry report is not amenable to judicial intervention and this Court while exercising civil jurisdiction cannot intervene in the administrative and disciplinary action of defendant No.1, as it is the prerogative rights of defendant No.1 to take action against the erring employee for proven acts of misconduct. The Trial Court also taken note of the averments made in the plaint and he had participated in the enquiry conducted against him and in his affidavit and cross-examination, the plaintiff admitted that the award of punishment which was challenged in appeal is still pending and the same is noted in paragraph No.32 and comes to the conclusion in paragraph No.33 that when the plaintiff fails to establish that there is violation of principles of natural justice by defendants on conducting domestic enquiry against the plaintiff, there is no question of declaring the punishment order dated 29.09.2011 issued by the Disciplinary Authority as null and void and dismissed the suit.

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Being aggrieved by the said finding, an appeal is filed before the First Appellate Court and the First Appellate

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Court also having reassessed both oral and documentary evidence and also considering the grounds which have been urged extracted in paragraph No.11, formulated the points in paragraph No.14 whether the Trial Court has committed an error in decreeing the suit without considering the evidence and whether it requires interference as the finding of the Trial Court is capricious and against the material on record. The First Appellate Court also having reassessed the material available on record comes to the conclusion that Trial Court has not committed any error and also taken note of the reasoning given by the Trial Court, particularly in paragraph Nos.27 to 29. The First Appellate Court in paragraph No.24 taken note of Ex.P10letter written by the Deputy General Manager H.R. to the plaintiff and also the letter written by the plaintiff to the Deputy General Manager, B.E.M.L. Ltd., in terms of Exs.P11 and P12 and also taken note of Exs.P13 and P14. The First Appellate Court also observed that, except relying upon document Ex.P18, the plaintiff has not produced medical documents to show that he was under treatment nor produced any document to show that one of the vested interest in the organization, the Vigilance Officer who had encounter receipt of advisory letters

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from the plaintiff master-minded fabrication of the hospitalization of the plaintiff and got a memorandum issued to the plaintiff on his imaginary grounds and all these factors were taken note of by the First Appellate Court. When a ground was also urged with regard to violation of principles of natural justice, the First Appellate Court comes to the conclusion that no such circumstances is found. Even with regard to contention of second showcase notice issued to him, the First Appellate Court has taken note that in the plaint, that is not the ground which has been pleaded and any such submission without pleading does not arise for consideration. Hence, affirmed the judgment of the Trial Court. Being aggrieved by the concurrent finding, the present second appeal is filed before this Court.

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The main grounds which have been urged in the second appeal by the appellant party-in-person is that the impugned judgment and decree passed by the Trial Court dismissing his suit on 15.03.2021 is not based on sound principles of law and the same is capricious. The party-inperson would vehemently contend that the Trial Court is not justified in dismissing the suit on the ground that there are no

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sufficient grounds and there is no violation of principles of natural justice. The First Appellate Court also committed an error in not considering the same in proper perspective.

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The learned counsel for respondent Nos.1 and 3 would vehemently contend that it is not in dispute that an enquiry is ordered against the plaintiff and in the said enquiry, he participated and also given representation admitting his lapses and requested the authority to pardon him. Hence, the said enquiry is closed as a special case and the same is also taken note of by the Trial Court in paragraph No.24. The Trial Court also observed in paragraph No.32 that appeal which was filed by the plaintiff challenging the punishment is still pending and in paragraph No.33 comes to the conclusion that principles of natural justice is not violated. Hence, suit is not maintainable and the First Appellate Court also considered the same while re-appreciating the grounds which have been urged.

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Having heard appellant party-in-person and learned counsel for respondent Nos.1 and 3 and also the grounds which have been urged in this second appeal, it is very clear that an enquiry is ordered against the appellant and he also

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participated in the said enquiry and even copy of the report is also furnished to him and he gave the representation and the same was taken note of by the Trial Court in paragraph No.24, wherein he admitted his lapses and also request was made to pardon him considering the same as a special case and the same is not disputed by appellant party-in-person for having given such representation and in order to prove the factum that there was a clear violation of principles of natural justice, nothing is placed on record. The Trial Court also taken note of the fact that he had participated in the enquiry proceedings conducted against him and in his affidavit and crossexamination, he categorically admitted that appeal which was filed challenging the award of punishment is still pending and admission made in the plaint and evidence become judicial admission and it has evidentiary value and in view of the admissions, he was given full opportunity to defend himself and hence, comes to the conclusion that there is no violation of principles of natural justice by the defendants with regard to the enquiry is concerned. When such finding is given by the Trial Court considering the evidence and admission on the part of the plaintiff and the very contention of appellant party-in-

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person that Trial Court has committed an error and not considered the material on record cannot be accepted. The First Appellate Court also having considered the grounds which have been urged in the appeal, even extracted the grounds which have been urged in paragraph No.11 and also framed the points for consideration in paragraph No.14 and reassessed both oral and documentary evidence, particularly even the documents which have been relied upon before the Trial Court in paragraph No.23 and an opportunity was also given and except producing the document of Ex.P18, plaintiff has not produced medical documents to show that he was under treatment nor produced document to show that one of the vested interest in the organization, the Vigilance Officer who had encounter receipt of advisory letters from the plaintiff master-minded fabrication is alleged and the same is not been established and even with regard to the contention that second show cause notice is concerned, no such second show cause notice was given and the same was not pleaded in the plaint and not led any evidence. In the absence of pleading and evidence, the same cannot be considered and all these grounds can be urged before the Appellate Authority. Admittedly, the

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appeal is pending and appellant party-in-person would submit that the same is not yet disposed of. Hence, the contention of appellant party-in-person cannot be considered in this civil proceedings and only ground which has been urged before this Court is that there is a clear violation of principles of natural justice. Having taken note of admission on the part of P.W.1, the Trial Court comes to the conclusion that opportunity was given to defend himself.

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When such being the case, question of invoking civil jurisdiction with regard to punishment is concerned to declare the punishment order dated 29.09.2011 as null and void when the opportunity was given does not arise. Hence, I do not find any ground to admit the second appeal and frame any substantial question of law, since both question of law and question of fact has been considered by the Trial Court and the First Appellate Court and there is no merit in this second appeal.

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