Full Judgment Text
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.
Signature Not Verified
Digitally signed by
Gulshan Kumar Arora
Date: 2015.04.13
17:38:14 IST
Reason:
3. Brief facts giving rise to this appeal are that respondent
G.C. Pandya was Deputy Engineer (civil) with the appellant
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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.
4. Strangely, though the defendant Gujarat Maritime Board
(present appellant) was served and represented through its
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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?
(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
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answered each question discussing the evidence on record.
Submissions of the learned counsel for the parties were
nd
considered and it is only thereafter, the trial court (2
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 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
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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.
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
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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 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
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1
Taneja and another v. Sunil Madan and another , 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
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
1
(1999) 8 SCC 396
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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 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
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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 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.
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ITEM NO.1 COURT NO.5 SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 3563/2015
GUJARAT MARITIME BOARD Appellant(s)
VERSUS
G.C.PANDYA Respondent(s)
Date : 13/04/2015 This appeal was called on for judgment today.
For Appellant(s) Ms. Hemantika Wahi, Adv.
Ms. Jesal Wahi, Adv.
Ms. Giss Antony, Adv.
For Respondent(s) Mr. Alok Bhachawat, Adv.
Mr. Manoj Joshi, Adv.
Ms. K.V. Bharathi Upadhyaya,Adv.
*
Hon'ble Mr. Justice Prafulla C. Pant pronounced the judgment
of the Bench consisting Hon'ble Mr. Justice Dipak Misra and His
Lordship.
The appeal is partly allowed in terms of the signed
reportable judgment.
(Gulshan Kumar Arora) (H.S. Parasher)
Court Master Court Master
(Signed reportable judgment is placed on the file)