Dismissed

Bhoop Singh v. State and Ors.

Rajasthan HC24 May 2024CSA/528/1998

Case brief

AI extract

What is this about?

In this second appeal, the High Court addressed jurisdiction and evidentiary issues regarding the termination of a government employee. The Court affirmed Civil Court jurisdiction but rejected the appeal because the plaintiff failed to produce original disability certificates, rendering the trial court's reliance on photocopies erroneous.

What did the court decide?

Instant S.B. Civil Second Appeal No. 528/1998 is dismissed.

Bhoop Singh Vs State and Ors. — Service and Employment | Rajasthan HC (2024)

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[2024:RJ-JP:26491]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 528/1998

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Savita Devi W/o Late Shri Bhoop Singh aged about 35 years, R/o Village Beroj Ki Dhani, Teh. Mundawar, Distt. Alwar.

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----Appellant

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Versus

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The State Of Rajasthan Through Its District Collector, Alwar, Rajasthan

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District Ayurvedic Officer, Ayurvedic Department, Alwar, Raj.

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Additional Director, Ayurvedic Department, Raj. Ajmer

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Director, Ayurvedic Department, Raj. Ajmer

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----Respondents

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For Appellant(s) : Ms. Sarah Sharma for Mr. Mahendra Shah, Senior Advocate For Respondent(s) : Mr. Hari Kishan Singh, Dy. GA

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

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Order

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24/05/2024

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Instant civil second appeal is preferred by plaintiff-appellantBhoop Singh (died during pendency of appeal), aggrieved from judgment dated 23.09.1998 in Civil Regular Appeal No. 12/1997 passed by learned Additional District Judge No.2, Alwar, whereby an appeal under Section 96 CPC preferred by respondentsdefendants was allowed and judgment and decree dated 23.08.1996 in Civil Suit No. 11/1991 passed by learned Additional Civil Judge (Junior Division) No.2, Alwar, was set aside. During pendency of the appeal appellant-plaintiff-Bhoop Singh has expired and his legal representative Savita Devi (wife) was substituted as legal heir of appellant.

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The facts giving rise to filing of instant second appeal are that plaintiff-Bhoop Singh had filed a civil suit for specific relief against the respondents-defendants alleging inter alia that in pursuant to a Selection Committee constituted by District Ayurvedic Officer, Alwar, plaintiff was appointed as Class-IV employee on 30.03.1988 and in pursuant to appointment order, posted at Government Ayurvedic Hospital, Mubarakpur, wherein plaintiff had joined his duty on 11.04.1988. The plaintiff had performed his duty for nearly 25-26 months but salary of one month was paid to him though duration in the appointment letter was of one year. There were vacancies in the department and the appointment was against the post vacant in the department but to appoint their own-man, the services of plaintiff were terminated on 24.05.1990. Aggrieved from termination order, the plaintiff had filed civil suit for declaration and also for perpetual and mandatory injunction.

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Aforesaid averments were denied by the defendants in their written statement wherein they stated that on 20.03.1988 no post was vacant at Mubarakpur. Further it was stated that the selection was against the rules, hence same was cancelled.

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The Trial Court had framed eight issues on the basis of pleadings of the parties. Only PW-1-Bhoop Singh was examined and the Trial Court had decreed the suit against the defendants and following decree was passed:-

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Qyr% nkok oknh fo:} izfroknhx.k e; [kpkZ fMØh fd;k tkdj ftyk vk;qosZn vf/kdkjh vyoj ds vkns”k Øekad izfr@2@90@1929&33 fnukad 245-90 dks voS/k ?kksf’kr fd;k tkdj oknh dks fnukad 11-4-88 ls fujarj lsok esa ekuk tkrk gSA oknh] izfroknhx.k ls izkIr “kq) osru 15+1= 16 ekg 1

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dks ?kVkdj fu;ekuqlkj ns; osru izkIr djus dk vf/kdjh gksxkA dehZ dksVZ Qhl fu’iknu ds le; olwyuh; gksxhA ipkZ fMfØ fu;ekuqlkj rS;kj dh tkosaA

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Aggrieved from aforesaid, first appeal under Section 96 CPC was preferred by the defendants-appellant and same was allowed on 23.09.1998 by learned Additional District Judge No.2, Alwar. As a result, the judgment and decree dated 23.08.1996 in favour of plaintiff was set aside and the civil suit was rejected, hence, this second appeal, by plaintiff.

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On 27.10.1998, this appeal was admitted and following substantial question of law were framed for consideration:-

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(1) Whether the jurisdiction of the Civil Court in the matter of termination is barred by the Rajasthan Civil Services Appellate Tribunal Act?

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(2) Whether the Trial Court has the jurisdiction to try and adjudicate upon the matter of termination of service of the Government employee which is arising out under general and common law but not based on any specific relief under the specific statute?

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(3) Whether the Appellate Court have exceeded its jurisdiction in giving the findings to the handicap whereas the same was not disputed by the defendant-respondents?

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(4) Whether the respondent-defendants had cancelled the appointment of the appellant-plaintiff on the ground of mis-statement with regard to his plea regarding payment of rent and/or its arrears up to 30.06.1976 and thereafter the plaintiff did not

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accept the rent. Hence, whether the Courts below were justified in placing the burden on the defendant-appellant whereas according to the Evidence Act once the onus of the question of default is successfully discharged, the burden of proving to the contrary at once shifts on the plaintiff which the Courts below have erred in not examining?

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(5) Whether the evidence submitted by the plaintiff-appellant could be denied from consideration on the ground that the same has not been got admitted and denied particularly when the proceedings were conducted ex-parte against the respondents while the documents submitted by the plaintiff-appellant had been duly proved and substantiated in his evidence?

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(6) Whether the evidence submitted by the appellant-plaintiff deserves to be discarded on the ground that he did not submit the original medical certificates in his evidence particularly when the statement made in para Nos. 3 to 8 in the plaint had not been denied by defendant-respondents in their written statement and hence, onus to discharge the burden stood heavily on the defendantsrespondents?

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(7) Whether the First Appellate Court was justified in not taking into consideration, the ratio of the decision of the Apex Court in the matter of The

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Premier Automobiles Ltd. Vs. Kamlakar

(5 of 15)

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Shantaram Wadke & Ors. & Automatic Electric Pvt. Ltd. Vs. Engineering Mazdoor Sabha & Ors. : Indian Factories & Labour Reports 1975 Vol. 31 page 195 wherein, the Apex Court had observed that “if the dispute is an industrial dispute and if it does not relate to enforcement of any other right under the I.D. Act, 1947, the remedy lies only in the Civil Court”?

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Learned counsel for appellant would submitted that plaintiffBhoop Singh was a disabled person and to accommodate disabled persons, a policy was framed by Government of India and to implement the policy, a special drive for recruitment of disabled persons was launched by the respondents. He also submitted that pursuant to a special drive for recruitment for disabled persons an advertisement was issued and a Selection Committee was constituted, by defendant No.2. He also submitted that after determination of vacant post, the Selection Committee has considered the selection of plaintiff, and on recommendation of Selection Committee, the plaintiff was appointed and posted at Mubarakpur, District Alwar as Class-IV employee on prevalent (regular) pay scale wherein the plaintiff had joined as Class-IV employee and he worked under the directions of superiors. He also submitted that all of a sudden without assigning a reason, the selection process was recalled and the appointment order was withdrawn and the services of plaintiff was terminated. He further submitted that the Trial Court after considering the material and evidence on record has decided issues in favour of plaintiff and decreed the suit but the Appellate Court travelling beyond the

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scope of Section 96 of CPC had allowed the appeal. He also submitted that no objection about the jurisdiction of Civil Court was raised by the defendants in their written statement and they cannot raise this issue before the Appellate Court. He also submitted that the Appellate Court has erroneously held that under Section 2-F of the Rajasthan Civil Services Appellate Tribunal Act, the jurisdiction of Civil Court is barred rather the matter of appointment is well within jurisdiction of the Civil Court. He also referred the judgment of Hon’ble Supreme Court in case in RSRTC Vs. Krishan Kant & Anr. 1995 (5) SCC 75, wherein it was held that the Civil Court has a jurisdiction, in case, relief based on general law and alternative jurisdiction of Civil Court cannot be discarded. He also submitted that the First Appellate Court has committed serious error while allowing the appeal. At last, he submitted that the original plaintiff has expired and now his wife is struggling to get compassionate appointment in place of deceased plaintiff.

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Aforesaid contentions were opposed by learned counsel for respondent on the ground that the original plaintiff-Bhoop Singh was appointed de hors the rules. He also submitted that the District Ayurvedic Officer was not authorized to select Class IV employee from the specific quota of disabled person but without following the process and proper approval, the plaintiff was appointed by the District Ayurvedic Officer. He also submitted that as the selection process was against the rules, therefore, the appointment was cancelled. He also submitted that the Civil Court has no jurisdiction to entertain Civil Suit and the Appellate Court has rightly decided the first appeal under Section 96 of CPC. He

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also referred to the order dated 06.02.2009 in S.B. Civil Writ Petition No. 2068/2002 passed by a Coordinate Bench of this Court in writ petition filed by Savita (present appellant) wherein, the writ petition was dismissed.

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Heard learned counsels for the parties and perused the entire record, also considered the judgments as referred by learned counsels for the parties. 10. During the pendency of the instant appeal the original plaintiff-Bhoop Singh expired and his legal representative (wife) Savita was substituted in place of appellant. Savita had filed a Writ Petition No. 2068/2002 before this Court and same was dismissed on 06.02.2009. The writ petition was filed for compassionate appointment in place of deceased-Bhoop Singh and a Coordinate Bench has passed the following order:-

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(4) Having heard learned counsel for the parties and perused the material, I find that respondents terminated the services of the late husband of the petitioner w.e.f. 25.05.1990 though initially his suit was decreed but in appeal, judgment and order of the Trial Court was reversed. He was reinstated and only on the strength of the stay order passed by this Court. This appointment of the petitioner’s husband was made in physically handicapped quota and respondents are even disputing whether he was handicapped. They are also disputing that there is no permanent substantive post, therefore, his services were terminated. The reinstatement of the

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petitioner’s husband was on the basis of the stay order passed by this Court.

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(5) In view of such nature of appointment which is regularly being disputed by the respondents being parties to the litigating suit, action of the respondents in not providing compassionate appointment to the petitioner cannot be fauled. Even otherwise, husband of the petitioner died on 14.04.2000 and at this distinct of time, no direction can possibly be given to the respondents to consider the case of the petitioner for giving compassionate appointment.

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(A) Substantial Question of Law No. 1, 2 and 7

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A perusal of the substantial question of law framed by this Court indicates that issue Nos. 1, 2 and 7 pertains to jurisdiction of Civil Court and we are deciding these issues altogether.

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Learned counsel for appellant heavily relied upon judgment in case of RSRTC Vs. Krishan Kant (supra) , wherein Hon’ble Supreme Court has held that where the dispute arises from general law of contract, a suit filed in Civil Court cannot be said to be not maintainable, even though such a dispute may also constitute an “industrial dispute” within the meaning of Section 2(k) or 2-A of the I.D. Act, 1947. The Supreme Court has considered several judgments including Premier Automobiles Ltd. Vs. Kamlakar shantaram Wadke (1976) 1 SCC 496.

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This judgment of Krishan Kant (supra) was later considered in case of RSRTC and Anr. Vs. Balmukund Bairwa (2009) 4 SCC 299, Hon’ble Supreme Court on the basis of law laid down in case of Premier Auto Mobiles Vs. Kamlakar Shantaram Wadke (supra) held that where no enquiry has been conducted there would be a violation of statutory regulation as also the Right of Equality as contained in Article 14 of the Constitution of India and civil suit will be maintainable for the purpose of declaration that the termination of service was illegal and the consequences following therefrom but in case a suit is filed alleging a violation of right by a workman and a corresponding obligation on part of employer under the Industrial Dispute Act then the civil suit may not lie.

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Having considered the aforesaid, if the matter relates to an industrial dispute or sister enactment then it is the forum under the Industrial Dispute Act which has the jurisdiction but in case of violation of the principles of natural justice, the Civil Court has jurisdiction to entertain a civil suit.

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In the instant case, the First Appellate Court has considered that the jurisdiction of Civil Court was barred under the Civil Services Tribunal Act. We have perused the

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Rajasthan Civil Services (Service Matters Appellate

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Tribunal) Act, 1976, wherein Section 2 (f) defines the service matter and we are reproducing the same as under:-

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(F) “Service matter” means any one or more than one of the following matters relating to a Government servant:-

(i) Seniority:

(ii) Promotion:

(iii) Confirmation:

(iv) Fixation of Pay:

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(v) An order denying or varying pay, allowances, pension and other service conditions to the disadvantage of a Government servant, otherwise than as a penalty:

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(vi) Cases of reversion while officiating in a higher service, grade or post to lower service, grade or post otherwise than as a penalty:

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(vii) Withholding the pension or denying the maximum pension otherwise than as the penalty:

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(viii) Any other matter notified by the Government.

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Aforementioned provision indicates that issue of termination from services like present one are not included in service matter, when the instant suit was filed by the plaintiff. Therefore, the observation of Appellate Court about the jurisdiction was thoroughly unwarranted particularly when the Trial Court has not framed any issue regarding jurisdiction of the Civil Court. A perusal of written statement filed by defendants also indicate that no such objection was raised about the jurisdiction of the Civil Court particularly about applicability of the Rajasthan Civil Services Tribunal Act, 1976. The Trial Court was having a limited jurisdiction to entertain the Civil Suit filed by the plaintiff. Accordingly, the substantial question of law Nos. 1, 2 and 7 are decided in favour of appellant.

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(B) Substantial Question of Law No.4:

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Issue No. 4 was wrongly framed in the instant case as it pertains to a dispute between landlord and tenant, therefore, we are refraining from deciding the issue No.4. the question is hereby deleted.

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(C) Substantial Question of Law No.3 and 6:

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Issue Nos. 3 and 6 pertains to findings of the Appellate Court about the factual aspect of medical condition relating to plaintiff which brought him in the category of physically handicapped (disabled) person.

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The Trial Court on the basis of pleadings of the parties considered issue No. 3 that the services of the plaintiff cannot be terminated as he belongs to the physically handicapped category. Learned Trial Court while deciding issue Nos. 1 to 3 concluded that the services of plaintiff were terminated contrary to the circular dated 21.06.1990, which prohibits termination of services of physically handicapped person.

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A perusal of the contentions of respondent-defendant indicated that the appointment of plaintiff was de hors the rules and without following the procedure as prescribed under the rules, the appointment order was issued by the District Ayurvedic Officer and after knowledge of act of District Ayurvedic Officer, the appointment was cancelled. Herein, the defendants contended that the Government has issued a circular only to give priority to physically handicapped person but it does not give any right for appointment. Herein this case, a fact was also mentioned by

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the defendant that no post was vacant on 20.03.1988 for appointment as Class-IV employee.

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The Trial Court has passed an ex-parte decree as the defendants have failed to appear before the Trial Court during trial. The judgment dated 23.08.1996 clearly indicates that from 14.09.1993, the defendants remained absent and on the basis of evidence of PW-1-Bhoop Singh and the documents exhibited, these issues were decided in favour of plaintiff. Thus, the Trial Court has considered only one sided version and on the basis of one sided version the suit was decreed in favour of plaintiff. It simply means that as there was no rebuttal of evidence of plaintiff, so the civil suit was decreed. It also shows that the Trial Court has neither examined the appointment process nor rules.

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A perusal of evidence of PW-1 indicate that plaintiff has exhibited a certified copy of his disability certificate as Ex.1. He also exhibited the termination order dated 24.05.1990 as Ex. 2. Besides these two documents no other document was exhibited by the plaintiff. The original disability certificate was not produced by the plaintiff.

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A perusal of Ex.1 indicates that a photocopy (by mechanical process), certified by the Notary Public as true copy was exhibited. The Ex.1 is a photocopy certified by the notary and not by any public servant similarly it is not a copy issued by any public office, therefore, the Trial Court has committed serious error while believing a photocopy Ex.1, as original in favour of plaintiff and the Appellate Court has rightly commented upon the process adopted by the Trial

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Court. The suit is brought by the plaintiff and it is the duty of the plaintiff to produce and exhibit the original certificate issued in his favour to establish that the plaintiff falls within the category of physically challenged or physically handicapped person. Therefore, on the basis of Ex. 1, no Court can presume that the plaintiff belongs to a physically handicapped category. The plaintiff has not examined the person (doctor) who has issued the certificate to prove the certificate, therefore, the certificate was not proved in favour of plaintiff and the Appellate Court has rightly observed against the plaintiff, therefore, the question Nos. 3 and 6 are decided against the appellant.

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(D) Substantial Question of Law No. 5:

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As regard to issue No.5 is concerned it is general law in civil cases that a party who brought the action is required to prove his own case. The law provides for proceeding exparte against the defendants or opposite party but as regard to law of evidence is concerned, it is equally applicable whether the proceedings are ex-parte or contested by both the parties. Herein this case, the duty lies upon the plaintiff to establish his case from the evidence as provided under the law. The civil cases are decided on the basis of preponderance of probabilities, therefore, up to certain extent the plaintiff is required to establish his own case whether opposite party or the defendant is participating in the proceeding or not.

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In this case, it appears that two exhibits firstly Ex.1, the photocopy of disability certificate and Ex.2 termination

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letter were exhibited by the plaintiff but herein no letter of appointment was exhibited by the plaintiff which indicates that the document on which the plaintiff has claimed the right was not produced by the plaintiff, himself. Similarly, the circulars or the orders of the Government on the basis of which plaintiff has claimed parity or right or preference in consideration of appointment were neither produced nor exhibited. Thus, the plaintiff himself has withheld the material documents. Moreover, the plaintiff has not called the person (doctor) who issued Ex.1 in the witness-box to prove this document which means the plaintiff has failed to prove Ex. 1. It appears from material on record that a civil suit was filed and contested without the documentary evidence. In service matters, particularly when there is challenge to termination order on the allegation that appointment was de hors the rules, then from advertisement till appointment process are required to be proved.

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In view of aforesaid, the plaintiff has failed to discharge his burden and the Appellate Court has rightly set aside the judgment and decree of the Trial Court, therefore, the issue No.5 is accordingly decided against the appellant. 26. During pendency of this appeal, the original plaintiff has expired on 14.04.2000 and in his place his wife is substituted as legal representative. Substituted appellantSavita has filed a separate writ petition No. 2068/2002 and same was dismissed by a Coordinate Bench of this Court on 06.02.2009.

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Having considered the deliberations made hereinabove, I am of the considered view that even though Civil Court has jurisdiction to consider the issue relating to termination as in present case but the Trial Court exceeded in its jurisdiction, while passing an ex-parte decree in favour of plaintiff and the First Appellate Court has rightly allowed the appeal of respondent-defendants. As a result of which, the judgment and decree passed by the Trial Court in favour of plaintiff was set aside. Now, the appellant has failed to establish that the judgment of First Appellate Court was erroneous and contrary to law. Therefore, this appeal is liable to be dismissed.

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As a result, the instant S.B. Civil Second Appeal preferred aggrieved from judgment dated 23.09.1998 in Civil Regular Appeal No. 12 /1997 passed by learned Additional District Judge No.2, Alwar is hereby dismissed.

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No order as to costs.

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Misc. application, if any, stands disposed of.

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(ASHOK KUMAR JAIN),J

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GAURAV /489

Bhoop Singh v. State and Ors.

Case brief

What is this about?

What did the court decide?

Bhoop Singh v. State and Ors.

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