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2007 DIGILAW 159 (RAJ)

Kalika Prasad Shukla v. Union of India

2007-01-19

R.S.CHAUHAN

body2007
R.S. Chauhan, J.—The appellant-plaintiff has challenged the order dt. 15.04.2002 passed by the Additional District Judge, No. 1, Ajmer whereby the leamed Judge has set-aside the judgment and decree dt. 28.05.1997 passed by the Civil Judge (Junior Division), Ajmer City (East), Ajmer, and has remanded the case back to the learned trial Court. 2. The brief facts of the case are that the appellant was appointed on the post of Assistant Security Officer, Armed Wings of the Railways on 09.11.1963. However, vide order dt. 07.02.1996, his services were terminated. Therefore, the appellant submitted an appeal before the Deputy Chief Security Officer, Bombay challenging his termination order. Vide order dt. 10.11.1976, the appellant was reinstated in the services. Because of his reinstatement, the respondent Nos. 2 and 3, the Chief Security Officer and the Assistant Security Officer, respectively, started having an animosity against the appellant. In order to teach him a lesson, they served him with a charge-sheet dt. 07.04.1975. In order to protect his interest, the appellant asked for certain documents. But, the same were never given to him. He was not even provided with the copies of the said documents. According to the appellant, during the course of the departmental enquiry he was not given an opportunity of cross-examining the witnesses. He further claimed that although he had requested that Shri A.S. Srivastava should be permitted to defend him in the departmental enquiry, but the same was declined. Eventually, vide order dt. 22.12.1978, the appellant’s services were terminated. Therefore, he filed a civil suit challenging the termination order. According to him, the basic principles of natural justice were violated during the departmental enquiry. Moreover, he could not be punished twice for the same act of absence from the service. For, on the one hand his salary has been deducted for the days when he was absent from the duty, yet, on the other hand, his services have been terminated on the ground that he was absent from the duty. The defendant-respondents filed their written statements and denied the averments made by the plaintiff. In order to support his case, the plaintiff examined himself as a witness and submitted twelve documents. In order to substantiate their case, the defendants examined one Narendra Kumar as a witness and submitted nine documents. The defendant-respondents filed their written statements and denied the averments made by the plaintiff. In order to support his case, the plaintiff examined himself as a witness and submitted twelve documents. In order to substantiate their case, the defendants examined one Narendra Kumar as a witness and submitted nine documents. After hearing both the parties and after examining the oral and documentary evidence, the learned trial Court, vide its order dt. 28.05.1997, decreed the suit in the appellant’s favour. The learned trial Court not only quashed and set-aside the charge-sheet dt. 07.04.1975, but also directed that the appellant be reinstated in the service. Since the respondents were aggrieved by the said order, they filed an appeal before the Additional District Judge, No.1, Ajmer. Vide order dt. 15.04.2002, the learned Judge has not only set-aside the judgment of the learned trial Court, but has also remanded the case back to the learned trial Court. 3. Mr. H.K. Saini, the learned counsel for the appellant, has vehemently argued that the powers to remand the case is well defined by Sec. 107 and Order 49, Rules 23 to 26 of the Code of Civil Procedure (henceforth to be referred to as ‘the Code’, for short). Instead of invoking the said powers, the learned Judge has needlessly remanded the case back to the learned trial Court. He has further contended that the legal journey that began in 1980 has yet to end after a voyage of twenty-seven years. For the last twenty seven years, the plaintiff is running from pillar to post hoping to be reinstated back in the service. 4. On the other hand, Mr. S.S. Hasan, the learned counsel for the respondents, has contended that the learned trial Court had failed to take note of Regulation 6 of the Railway Protection Force Regulation, 1966 (henceforth to be referred to as ‘the Regulation’, for short), which clearly states that in case of an absence after the expiry of leave, a person would be liable to punishment for the absence. He has further argued that the principles of natural justice were strictly observed by the enquiry officer. Therefore, the learned Judge was justified in remanding the case back to the learned trial Court. 5. We have heard both the learned counsel for the parties and have perused the impugned order as well as the judgment dt. 28.05.1997 passed by the learned trial Court. 6. Therefore, the learned Judge was justified in remanding the case back to the learned trial Court. 5. We have heard both the learned counsel for the parties and have perused the impugned order as well as the judgment dt. 28.05.1997 passed by the learned trial Court. 6. Sec. 107(2) of the Code grants the Appellate Court the same power as the Court of original jurisdiction. Moreover, according to Sec. 107(1) of the Code grants the Appellate Court the power to take additional evidence even at the Appellate stage. Order 41 Rules 23 to 29 of the Code merely elaborate the power prescribed by Sec. 107 of the Code. While discussing Order 41 Rules 23 to 29 in the case of Niranjan Lal vs. U.I.T., Alwar and Ors., S.B. Civil Misc. Appeal No. 1253/1998, decided on 21.08.2006, this Court has clearly held as under: The purpose behind the Rules is not to initiate de novo trial. The purpose is also not to prolong the dispute between the parties. Since the Judiciary must endeavour to decide the dispute as soon as possible, the Appellate Court is expected to decide the case at the Appellate stage itself. Therefore, the tendency to remand the case in toto after setting aside the judgment of the trial Court and the tendency to direct a de novo trial is against the tenor of law. The Appellate Court is expected to exercise its power within the confines to Rules 23 to 26-A of the Code. Ample powers have been given to the Appellate Court under Rules 27, 28 and 29 of the Code to take additional evidence and to decide the issues reframed by it. Since the trial Court are the most overburdened Courts in the judiciary hierarchy, the Appellate Court should refrain from remanding the case in toto in a routine manner. What can be done at the Appellate stage, need not be remanded back to the trial Courts. After all, the buck has to stop somewhere. The poor litigant cannot be treated as a shuttlecock and forced to run from pillar to post, from Court to Court. The litigant expects the judiciary to decide its case at the earliest. The litigant neither has the financial means, nor the energy to go on a roller-coaster ride of litigations. The judiciary has to be sensitive to the financial condition and to the expectation of the litigant. The litigant expects the judiciary to decide its case at the earliest. The litigant neither has the financial means, nor the energy to go on a roller-coaster ride of litigations. The judiciary has to be sensitive to the financial condition and to the expectation of the litigant. To prolong a dispute endlessly is not only a disservice to the litigant, but it is an injustice to him. Therefore, this trend of remanding the case back to the trial Court in a mechanical and routine manner has to stop. The learned District Judges, who are experienced and knowledgeable, are expected to do their duty by the litigant. 7. Similar view has also been held by the Hon’ble Supreme Court in the case of Bechan Pandy and Ors. vs. Dulhin Janki Devi and Ors., AIR 1976 SC 866 and in the case of P. Purushottam Reddy and Anr. vs. Pratap Steels Ltd., (2002) 2 SCC 686 . In the present case, the issue was not about the power of the Railways to issue a charge-sheet against the appellant. But the issue was whether the departmental enquiry had been conducted in accordance with the law and in case, it was in violation of the principles of natural justice whether the departmental enquiry stands vitiated or not. A bare perusal of the judgment dt. 28.05.1997 clearly shows that the learned trial Court after a detailed discussion, had fairly and reasonably concluded that indeed, the principles of natural justice were violated. Thus, he was justified in quashing the termination order dt. 22.12.1978 and in directing that the appellant be reinstated in the service. A bare perusal of the impugned judgment dt. 15.04.2002, further clearly shows that the learned Judge has mis-directed himself by considering the impact of Regulation 6 of the Regulation. After all, the appellant was not challenging the power of the Railways to serve a charge-sheet, but was claiming that the departmental enquiry was unfair. Since the violation of the principles of natural justice is writ large in the present case, there was no occasion for the Appellate Court to remand the case back to the learned trial Court. Moreover, the Appellate Court had ample power under Order 41 Rule 27 of the Code to take additional evidence and to decide the case itself. The appellant has been running from pillar to post since 1980 i.e. for the last twenty-seven years. Moreover, the Appellate Court had ample power under Order 41 Rule 27 of the Code to take additional evidence and to decide the case itself. The appellant has been running from pillar to post since 1980 i.e. for the last twenty-seven years. There seems to be no end to this litigation. As stated above, a litigant cannot be forced to run from one Court to another hoping and praying for justice to be delivered. 8. In the result, this appeal is allowed and the judgment dt. 15.04.2002 is quashed and set-aside and the judgment dt. 28.05.1997 is confirmed. There shall be no order as to cost. * * * * *