A. N. DIVECHA, J. ( 1 ) CAN the disciplinary authority himself conducting the enquiry proceedings against a delinquent transgress the limit of his power under the rules governing such enquiry proceedings ? What is the effect of such transgression? These are some of the questions arising in this second Appeal filed by Original defendant No. 1 of Regular Civil Suit no. 682 of 1977 decided by the learned joint Civil Judge (J. D.) at Junagadh on 1st May 1978 against the judgment and the decree passed by the learned District judge of Junagadh on 31st March 1979 in Civil Regular Appeal No. 51 of 1978 and allied appeals. Thereby the lower appellate Court was pleased to accept the appeal and to set aside the judgment and the decree passed by the Trial Court dismissing the suit instituted by present respondent No. 1. 2: The facts giving rise to this Appeal may be summarised thus : The Appellant herein is a statutory corporation established under the Road Transport corporation Act, 1950 (the act for brief ). I shall refer to the Appellant as the corporation for the sake of convenience. Respondent No. 1 was at the relevant time serving as a Conductor in the Corporation. For the sake of convenience I shall refer to him as the delinquent. He was in-charge of one bus bearing No. 6265 plying between ahmedabad and Junagadh on 5th february 1974. That bus was checked by the checking party on that day. It was found that no tickets were given to certain passengers though fares were recovered from them. Thereupon one charge-sheet bearing No. 113 of 22nd February 1974 was issued to him calling upon him to explain why he should not be punished for his act of such misconduct. A copy of the charge-sheet is at Exh. 19 on the record of the Trial Court. He submitted his reply to the charge-sheet on 10th April 1974 and denied the charges levelled against him. His reply to the charge-sheet is at Exh. 21 on the record of the Trial court. Thereupon the disciplinary authority himself conducted the enquiry proceedings against him. The evidence was recorded therein. A copy of the deposition of the Reporter examined on behalf of the Department is at Exh. 22 on the record of the Trial Court. His reply to the charge-sheet is at Exh. 21 on the record of the Trial court. Thereupon the disciplinary authority himself conducted the enquiry proceedings against him. The evidence was recorded therein. A copy of the deposition of the Reporter examined on behalf of the Department is at Exh. 22 on the record of the Trial Court. The delinquent also examined one witness named, Jagdish Labshanker Raval, on his behalf in the proceedings. A copy of his deposition is at Exh. 23 on the record of the Trial Court. It appears that the disciplinary authority as the Enquiry officer recorded some statement of the delinquent. Its copy is at Exh. 24 on the record of the Trial Court. Thereafter the enquiry report was prepared holding the delinquent guilty of the charge levelled against-him. He was thereupon served with what is popularly known as the second show-cause notice on 27th september 1974 accompanied by a copy of the enquiry report. The second show-cause notice together with its accompaniment is at Exh. 20 on the record of the Trial Court. It appears that the delinquent filed a suit in the court of the Civil Judge (S. D.) at Junagadh challenging the legality and validity of the second show-cause notice. That suit appears to have been dismissed on the ground that it was premature. The disciplinary proceedings were thereupon carried further. The delinquent submitted his reply on 23rd September 1977 to the show-cause notice at Exh. 20. It appears that his reply was not found acceptable to the disciplinary authority. By his order passed on 25th October 1977, the disciplinary authority was pleased to order dismissal of the delinquent from service. A copy of the order dismissing the delinquent from service is at Exh. 32 on the record of the Trial Court. The delinquent again approached the court of the Civil Judge (S. D.) at Junagadh challenging the legality and validity of the order dismissing him from service by filing a suit. It was registered as Regular civil Suit No. 682 of 1977. The present corporation was arraigned as Deft. No. 1 and the disciplinary authority was arraigned as Deft. No. 3 therein. The State government of Gujarat was impleaded as Deft. No. 4 and the appellate authority for the purpose of carrying the matter in Departmental Appeal was joined as deft. No. 2. Deft. Nos. The present corporation was arraigned as Deft. No. 1 and the disciplinary authority was arraigned as Deft. No. 3 therein. The State government of Gujarat was impleaded as Deft. No. 4 and the appellate authority for the purpose of carrying the matter in Departmental Appeal was joined as deft. No. 2. Deft. Nos. 1 to 3 filed their written statement at Exh. 12 and resisted the suit on various grounds. It appears that the State Government as defendant no. 4 has remained ex parte. The suit appears to have been assigned to the court of the Joint Civil Judge (J. D.) at Junagadh for trial. The lower Trial Judge raised the necessary issues on the pleadings of the parties. After recording evidence and hearing the parties, by his judgment and order passed on 1st May 1978 in Regular civil Suit No. 682 of 1977, the lower Trial judge was pleased to dismiss the suit. That aggrieved the delinquent. He therefore carried the matter in appeal before the District Judge of Junagadh. His appeal came to be registered as Civil regular Appeal No. 51 of 1978. It appears that certain other appeals were also preferred involving similar questions of fact and law. All the appeals were heard together by the learned District Judge. By his judgment and decree passed on 31st March 1979 in Civil Regular Appeal no. 51 of 1978 and allied appeals, the learned District Judge was pleased to accept the appeal and to set aside the judgment and the decree passed by the trial Court dismissing the delinquents suit. That aggrieved the Corporation. It has therefore preferred this Second appeal before this Court. ( 2 ) SHRI Sen for the Appellant has submitted that the lower Appellate Court has erred in law in reappreciating the evidence in the enquiry proceedings and has come to the conclusion that the charge against the delinquent was not duly proved. According to Shri Sen for the appellant, the lower Appellate Court had no jurisdiction to reappreciate the evidence adduced in the enquiry proceedings and it could not sit in appeal over the order passed by the competent authority of the Corporation. According to Shri Sen for the appellant, the lower Appellate Court had no jurisdiction to reappreciate the evidence adduced in the enquiry proceedings and it could not sit in appeal over the order passed by the competent authority of the Corporation. Shri Rana for the delinquent has on the other hand submitted that the approach of the lower appellate Court was quite in consonance with the principles of law in that regard and the judgment and the decree under challenge in this Appeal need not be upset on that account. ( 3 ) I think Shri Sen is right in his submission to the effect that the Civil court in exercise of its jurisdiction under section 9 of the Code of Civil Procedure, 1908 (the code for brief) has no power to sit in appeal over the decision taken by the competent authority on appreciation of the evidence adduced in the disciplinary proceedings. This question is no longer res integra. In its ruling in the case of R. C. Sharma v. Union of India and Others reported in a. I. R. 1976 Supreme Court at page 2037, it has been held:"a suit challenging the validity of departmental proceedings cannot be treated as an appeal from the findings in the departmental proceedings or the punishment inflicted upon the Govt. servant even if these are erroneous. A question which could affect the result in a civil suit has to be of such a nature that it goes to the root of the jurisdiction and the conduct of the departmental trial and vitiates the result. It is only if the departmental proceedings is null and void that a plaintiff in such a suit could obtain the reliefs he had asked for. "to the same effect is the ruling of the supreme Court in the case of State of haryana and Another v. Rattan Singh reported in A. I. R. 1977 Supreme Court at page 1512. It has been held:"the sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. It has been held:"the sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. "coming to the judgment of the lower appellate Court, it becomes clear from the discussion in para 23 thereof that the learned District Judge has practically reappreciated the evidence on the record of the enquiry proceedings as if he was sitting in appeal over the decision of the disciplinary authority. This approach of the learned District Judge, with respect, was contrary to well-settled principles of law enunciated by the Supreme Court in its aforesaid rulings in the cases of R. C. Shama (supra) and Rattan Singh (supra ). The conclusion reached by the learned District Judge on reappreciation of the evidence adduced in the enquiry proceedings cannot be upheld. It has to be quashed and set aside. ( 4 ) SHRI Rana for the delinquent has however submitted that the disciplinary authority as the Enquiry Officer has not followed the procedure resulting into contravention of principles of natural justice and as such the order of dismissal at Exh. 32 cannot be sustained in law. Shri Rana for the delinquent has taken me through the purported statement at exh. 23 of the delinquent as recorded by the disciplinary authority as the enquiry Officer and has submitted that the Enquiry Officer had no power to record such statement. According to Shri rana for the delinquent, transgressing the limits of his power on the part of the enquiry Officer has resulted into contravention of principles of natural justice and consequently vitiated the ultimate order of the delinquents dismissal from service. As against this, shri Sen for the Appellant has submitted that the delinquent has filed no cross-objections in this Appeal, and as such this point cannot be permitted to be urged on his behalf. Shri Sen further submitted that no such plea was taken by the delinquent in his plaint and he should therefore be precluded from raising such plea for the first time in this Second Appeal. Shri Sen further submitted that no such plea was taken by the delinquent in his plaint and he should therefore be precluded from raising such plea for the first time in this Second Appeal. Even otherwise, runs the submission of Shri Sen for the appellant, no procedure of the disciplinary proceedings has been contravened by the Enquiry Officer and no breach of principles of natural justice is made by him in the course of conducting the enquiry proceedings. ( 5 ) I find no substance or merit in the technical objections raised by Shri Sen for the Appellants to the submissions urged before me by Shri Rana challenging the legality and validity of the dismissal order at Exh. 32 on the ground of contravention of principles of natural justice. In this connection a reference deserves to be made to Order 41 Rule 22 read with Order 42 Rule 1 of Code of Civil Procedure, 1908. Thereunder, it would be open to the contesting respondent to support the judgment and the decree passed in his favour on any legal ground available to him. It is not necessary for him to file any cross-objection in that regard. ( 6 ) I am supported in my view by the ruling of the Madhya Pradesh High Court in the case of Tej Kumar Jain v. Purshottam and Another reported in a. I. R. 1981 Madhya Pradesh at page 55. It has been held therein:"the expression "provided he has filed such objection in the Appellate Court" in Order 41, R. 22 (1) governs only the words "and may also take any cross-objection to the decree which he could have taken by way of appeal" and does not govern the words "but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour". Therefore even under the amended R. 22 (1) the respondent without filing any cross-objection can support the decree of the Court below by asserting that the matter decided against him should have been decided in his favour. "i am in respectful agreement with the principle of law enunciated by the Madhya pradesh High Court in its aforesaid ruling in the case of Tej Kumar Jain (supra ). "i am in respectful agreement with the principle of law enunciated by the Madhya pradesh High Court in its aforesaid ruling in the case of Tej Kumar Jain (supra ). On the basis of the aforesaid ruling of the Madhya Pradesh High Court, it can be said that the contesting respondent can support the judgment and the decree passed in his favour by taking recourse to another point of law available to him without filing any cross-objection. ( 7 ) I find no substance or force in the submission urged before me by Shri Sen for the Appellant to the effect that the plea of breach of the procedure of the disciplinary proceedings resulting into contravention of principles of natural justice ought to have been taken by the delinquent in his plaint. The law of pleading does not require the plaintiff to state law. No provision of Order 6 or 7 of the Code requires the plaintiff to plead law. ( 8 ) IN this connection a reference deserves to be made to the ruling of the supreme Court in the case of Kedar Lal seal and Another v. Hari Lal Seal reported in A. I. R. 1952 Supreme Court at page 47. It has been held therein:"the learned Counsel for the plaintiff-respondent urged that the defendants are shut out from relying on section 82 because that was not their case and the question was never raised by them in the High Court. Such reference as there is to the section was with reference to an argument urged on behalf of the plaintiff. I am not impressed with this objection. On the facts set out by the plaintiff it is evident that he is entitled to contribution. The method of computation is a matter of law and it is for the Judges to apply the law to the facts stated and give the plaintiff such relief as is appropriate to the case. " ( 9 ) IN this connection a reference also deserves to be made to the ruling of the supreme Court in the case of The State of Rajasthan v. Rao Raja Kalyan Singh reported in A. I. R. 1971 Supreme Court at page 2018. In that case the plea of non-maintainability of the suit was not taken in the pleading and no specific issue was sought thereon. In that case the plea of non-maintainability of the suit was not taken in the pleading and no specific issue was sought thereon. In that context, it has been held:"that apart the plea of maintainability of the suit is essentially a legal plea. If the suit on the face of it is not maintainable, the fact that no specific pleas were taken or no precise issues were framed is of little consequence," ( 10 ) IN view of the aforesaid dicta of law pronounced by the Supreme Court in its aforesaid rulings, it is not necessary for the plaintiff to plead law in his plaint. What the plaintiff has to plead is the material facts constituting the cause of action. The law would take care of itself on the basis of the controversies arising in the case. ( 11 ) THAT brings me to the question whether or not any procedural part of the law governing the disciplinary proceedings came to be violated by the enquiry Officer and the consequences flowing therefrom. It appears that the corporation has framed the Gujarat State transport Employees Service regulations in exercise of its power under section 45 of the Act (the service regulations for brief ). In exercise of its power under Regulation 80 of the Service regulations, the Corporation has framed the Discipline and Appeal Procedure for the Gujarat State Road Transport corporation Employees (the appeal procedure for brief ). Para 5 thereof prescribes the procedure for dealing with acts of misconduct of employees of the corporation. Clause (b) thereof requires the issue of the charge-sheet to the employee found guilty of misconduct. The charge-sheeted person is required to submit his reply to the charge-sheet within 7 days from its receipt by him as provided in Clause (c) thereof. Thereafter the charged employee is required to be given an opportunity of making an oral statement in addition to the written statement, if any, submitted by him under Clause (d) thereof. Then comes Clause (e) thereof. Thereunder, the charge-sheeted employee is given an opportunity to inspect the documents relevant for the purpose of the disciplinary proceedings. Clause (f) thereof makes provision for production of documents on the part of the charge-sheeted employee. Clause (g) thereof requires the Enquiry officer to record oral evidence in the presence of the defaulter, that is, the charge-sheeted employee. Clause (h) prescribes the procedure for recording such evidence. Clause (f) thereof makes provision for production of documents on the part of the charge-sheeted employee. Clause (g) thereof requires the Enquiry officer to record oral evidence in the presence of the defaulter, that is, the charge-sheeted employee. Clause (h) prescribes the procedure for recording such evidence. Clause (i) thereof lays down that pleaders will not be allowed to appear at the enquiry proceedings. A provision is made thereunder to provide for defence assistants to the defaulter or the charge-sheeted employee. Clause (j) thereof is not material for the present purpose. Then comes Clause (k) thereof. It reads:"after completing the enquiry and giving the persons charged a further opportunity of making a written or oral statement, if desired by the person charged, the Enquiry Officer, shall record his findings on such charges and the reasons for such findings. "the rest of the clauses of para 5 are not material for the present purpose. 13. According to Shri Rana for the delinquent, the Enquiry Officer has transgressed his limits prescribed under para 5 of the Appeal Procedure. According to Shri Rana, no power is given to the enquiry Officer under para 5 of the appeal Procedure to cross-examine any witness or to compel the delinquent to give any statement. If any such power is assumed by the Enquiry Officer, runs the submission of Shri Rana for the delinquent, it would amount to assumption of the role of the prosecutor by the Enquiry Officer who has to perform the role of the judge. According to Shri rana, it is a settled principle of law that no person can be both a judge and a prosecutor. Shri Rana has urged that if the Enquiry Officer performs the functions both of the judge and the prosecutor, he can be said to have been biased and to that extent principles of natural justice can be said to have been contravened. Shri Sen for the Appellant has on the other hand submitted there is no violation of any provision of the appeal Procedure on the part of the enquiry Officer. What the Enquiry Officer has done in the enquiry procedings, according to Shri Sen for the Appellant, was to put questions to certain witness in view of the fact that no presenting officer was appointed for presenting the case of the department in the enquiry proceedings. What the Enquiry Officer has done in the enquiry procedings, according to Shri Sen for the Appellant, was to put questions to certain witness in view of the fact that no presenting officer was appointed for presenting the case of the department in the enquiry proceedings. So far as the recording of the statement of the delinquent is concerned, Shri Sen for the Appellant has submitted that it was in the nature of oral evidence given by the delinquent in the enquiry proceedings. In the alternative, runs the submission of Shri sen for the Appellant, the statement of the delinquent recorded by the Enquiry officer can be said to be for the purpose of seeking the delinquents explanation with respect to the circumstances against him on the record of the case. In that view of the matter, Shri Sen has urged that the Enquiry Officer cannot be said to have been guilty of any infraction of the Appeal Procedure and could not be said to have transgressed his limits resulting into contravention of principles of natural justice. Shri Sen has submitted that, by putting certain questions to the witness for the purpose of finding out the truth or to the delinquent with that end in view, it cannot be said that the enquiry Officer has converted himself into the prosecutor from the judge. ( 12 ) IT transpires from the record of the enquiry proceedings that the delinquent did not volunteer to give any oral testimony in the enquiry proceedings. It may be mentioned at this stage that he had one union representative as his defence assistant in the enquiry proceedings. If at all the delinquent wanted to give any oral testimony, his chief examination could have been recorded by his defence assistant. The so-called statement of the delinquent at exh. 24 shows that no chief examination of his is taken. What is mentioned therein is that the delinquent was questioned by the Enquiry Officer in presence of the formers defence assistant. It would mean that the delinquent was required to give answers to the questions put to him by the Enquiry Officer. This makes one thing clear that the so-called statement at Exh. 24 can by no stretch of imagination be said to be his oral testimony in the enquiry proceedings. It would mean that the delinquent was required to give answers to the questions put to him by the Enquiry Officer. This makes one thing clear that the so-called statement at Exh. 24 can by no stretch of imagination be said to be his oral testimony in the enquiry proceedings. ( 13 ) THE question then arises whether or not the Enquiry Officer could have recorded his explanatory statement in the manner it is recorded by the Criminal court under Section 313 of the Criminal procedure Code, 1973 on completion of the recording of the prosecution evidence. As aforesaid, the only provision made in that regard is in Clause (k) of para 5 of the Appeal Procedure. Thereunder, the enquiry Officer is invested with the limited power of giving a further opportunity to the delinquent of making a written or oral statement if desired by him. It would mean that after completion of recording the evidence, the Enquiry officer has to ascertain from the delinquent whether or not he has to say something more with respect to the material on record. If the delinquent so desires, the option is given to him to make an oral or written statement in that regard. It thus becomes clear that such statement to be given by the delinquent after completion of the recording of the evidence should be out of his volition. It is not open to the Enquiry Officer to compel him to give any such statement. If the Enquiry Officer does so, even if be in the nature of seeking explanation of the delinquent with respect to the material on record pointing the finger of guilt against the delinquent, the Enquiry officer can be said to be transgressing his limits laid down in Clause (k) of para 5 of the Appeal Procedure. ( 14 ) IN the instant case, what transpires from the purported statement at Exh. 24 recorded by the Enquiry Officer in the enquiry proceedings is that the Enquiry officer has cross-examined the delinquent with respect to certain material on record. This it was certainly not open to him. Shri Sen for the appellant has failed to point out any provision in the Appeal Procedure enabling the Enquiry Officer to undertake such task. 24 recorded by the Enquiry Officer in the enquiry proceedings is that the Enquiry officer has cross-examined the delinquent with respect to certain material on record. This it was certainly not open to him. Shri Sen for the appellant has failed to point out any provision in the Appeal Procedure enabling the Enquiry Officer to undertake such task. If the Enquiry Officer cross-examines the delinquent under the guise of recording his statement (which it would not be open to him to do under the Appeal Procedure), he dons the robe of the prosecutor while keeping the robe of the judge on his shoulder. It is a settled principle of law that no person can be both a prosecutor and a judge. If a person tries to be both, he can be said to be biased in conducting the enquiry proceedings. It is a well-known principle of law that a biased person is disqualified from conducting such enquiry proceedings. That is a settled principle of natural justice. ( 15 ) IN view of my aforesaid discussion, i am of the opinion that the Enquiry officer performed the function of the prosecutor as well besides performing the function of the judge designed to carry the enquiry proceedings to its logical end. His such an approach was in contravention of the basic principle of natural justice to the effect that no person can be both a judge and a prosecutor. This approach on the part of the Enquiry officer has vitiated the enquiry proceedings. It culminated into the impugned order of dismissal at Exh. 32. Any decision or order based on any illegal and invalid proceedings has to be branded null and void. I am therefore of the opinion that the order dismissing the delinquent from service at Exh. 32 cannot be sustained in law and it is null and void and of no consequence or effect whatsoever. ( 16 ) IT cannot be gainsaid that the corporation is a state within the meaning of Article 12 of the Constitution of India. This point has been concluded by this Court in its Division Bench ruling in the case of Amarsing Salansing medatia v. Gujarat Stale. Road transport Corporation and Others 21 g. L. R. at page 500. ( 16 ) IT cannot be gainsaid that the corporation is a state within the meaning of Article 12 of the Constitution of India. This point has been concluded by this Court in its Division Bench ruling in the case of Amarsing Salansing medatia v. Gujarat Stale. Road transport Corporation and Others 21 g. L. R. at page 500. The employee of the corporation partaking the character of state for the purpose of Article 12 of the Constitution of India cannot be removed just at the sweet will of the appointing or the disciplinary authority. They in that sense enjoy the status of irremovability like government servants enjoying protection under Article 311 of the Constitution of India or workmen under the relevant industrial or labour legislation. If any disciplinary action contrary to law is taken against any such employee of such Corporation, he can successfully challenge such action in a court of law exercising civil jurisdiction under Section 9 of the Code. ( 17 ) THIS point is concluded by the division Bench ruling of this Court in its ruling in the case of Mohanlal popatbhai Patel v. The Gujarat State road Transport Corporation and another reported in 1977 (1) Services law Reporter at page 30. It has been held therein:"if an order of dismissal is passed by the respondent-Corporation in violation of principles of natural justice or in contravention of the relevant regulations framed by the Corporation in this behalf, such an order can be declared as null and void and the Court can grant a declaration that the employee concerned continues in service. " ( 18 ) IN view of this settled principle of law, I find no substance or merit in the contention urged before me by Shri Sen for the Appellant that the relief of reinstatement in service could not be granted by any Civil Court. ( 19 ) IN view of my aforesaid discussion, i am of the opinion that the judgment and the decree passed by the lower appellate court under challenge in this appeal deserve no interference by this court though on a consideration different from that weighed with lower Appellate court. ( 20 ) IN the result, the Appellant fails. This Appeal is dismissed however with no order as to costs on the facts and in the circumstances of the case. Appeal dismissed. .