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2010 DIGILAW 570 (GUJ)

State of Gujarat v. Mohanbhai Kanabhai Parmar

2010-11-30

H.K.RATHOD

body2010
JUDGMENT : H.K. Rathod, J. Heard learned advocates appearing on behalf of respective parties. 2. I have perused record and proceedings received from Courts below. I have also perused judgment and decree passed by trial Court and confirmed by appellate Court. 3. The following substantial question of law are involved in this appeal as framed by this Court by order dated 18th March 1992 : (i) Whether it is open to the appellants to contend that the suit was time barred ? If so, whether the suit was time barred ? (ii) Whether the Courts below have committed a substantial error of law in granting an absolute injunction in terms in which it is granted ? 4. The brief facts of present appeal are as under : 4.1 The plaintiff Mohanbhai Kanabhai Parmar was selected as Unarmed Police Constable and resumed the duty on 27th February, 1983 and during the service, plaintiff was sent to the training at PTS, Baroda and before completion of training in the month of April, 1984, he has appeared in written test and on following grounds of copying in the examination, a report was made to DSP. Thereafter, without affording him any opportunity, service of plaintiff was terminated, therefore, plaintiff has filed suit for declaration and permanent injunction. 4.2 The present appellants have filed reply at Ex.11 and raised contentions that notice under Section 80 of CPC is not given. On 25th April, 1984, plaintiff was caught red-handed when he was copying in the PTS examination and two pieces of small papers seized from him. The plaintiff was appointed as Unarmed Police Constable on probation period and he has committed said misconduct, therefore, he cannot be continued in service, therefore, defendant sought dismissal of suit of plaintiff. 4.3 One Regular Civil Suit No.738 of 1988 had filed by plaintiff before Civil Judge (S.D.), Junagadh. The issues have been framed by trial Court at Ex.14; whether plaintiff proves that he was terminated without following principles of natural justice and whether order of termination is illegal or not and suit notice has been served to present appellants is legal and valid or not and whether plaintiff is entitled to get declaration as prayed for ? 4.4 Issue Nos. 1 to 4 have been decided together by trial Court in Para 5 which are as under : "5. 4.4 Issue Nos. 1 to 4 have been decided together by trial Court in Para 5 which are as under : "5. Issue Nos.1 to 4 : These issues are interlinked, therefore, same are decided together. The suit is to be decided on documentary evidence and therefore, neither side has adduced any oral evidence. L.A. Shri Gadhvi for the plaintiff has argued that plaintiff who was selected a Unarmed Police Constable and who had presented himself before DSP, Junagadh was sent at PTS Baroda for training on dt.3-3-83 and before completion of training, he was appeared in the examination which was held on dt.25-4-84. There was an allegation that plaintiff was making a copy in the examination and two paper slips were seized from him, therefore, he has been removed from service. The order is passed by DSP, Junagadh on dt.27-4-85 and same is produced at Ex.25. Shri Gadhvi for the plaintiff has argued that impugned order is not legal and valid and it is liable to be set aside because order of termination of service of the plaintiff is omnibus and not speaking order and not stated any reasons. As against this, Govt. Pleader Shri Baxi has argued that police force requires discipline and such gross indiscipline on the part of the plaintiff cannot be tolerated in the police department; that he was caught red-handed and two paper lips were seized from him and therefore, he was rightly discharged from the service. Ex.23 statement of the plaintiff reveals that pieces of papers in which Sec.154, 146, 118, 101, 36 were found in his personal search but same were not possessed by him and same were not owned by him and he had not brought those pieces of papers. Therefore, statement Ex.23 and 24 made before PSI, Baroda is not binding to me. Only Principal of the PTS College was competent to record a statement. LA. Shri Gadhavi for the plaintiff relied on 1986 GLH 136 . It was a case of Anopsinh Jatubha v. District Superintendent of Police, Jamnagar. Police Constable had underwent the department training and had to appear at the departmental examination. He was found indulging in unfair practice at the examination by copying from a chit which was recovered from his during the examination. The department had held that it was a misconduct of copying and unfair practice. Police Constable had underwent the department training and had to appear at the departmental examination. He was found indulging in unfair practice at the examination by copying from a chit which was recovered from his during the examination. The department had held that it was a misconduct of copying and unfair practice. So services of Anopsinh Jatubha, Police Constable was terminated. Here, in the instant case, present plaintiff is an Unarmed Police Constable. He was found indulging in unfair practice at the examination by copying from a chit. Their Lordships Chief Justice P.R. Gokulkrishnan and S.B. Majmudar had held that there is nothing in the termination order that such termination was made on the ground of unsuitability; unsatisfactory conduct or the like. Authorities had not followed the procedure set up under Article 311(2) or otherwise. Their Lordships have further held that if the foundation of the order of termination was the malpractice alleged to have been adopted by the police constable, reasonable opportunity ought to have been given to employee to defend himself. It merely a camouflage for an order of dismissal for misconduct under Article 311(2) has been violated. Now, in the present case, order of termination of the services of the plaintiff is absolutely silent about the ground on which his services were terminated. If the plaintiff was terminated on the ground of misconduct or malpractice in examination by copying at the examination, DSP, Junagadh or the terminating authority ought to have mention in it that on the basis of particular misconduct or malpractice, he is discharged from the service. In the W.S. at Ex.11, it is mentioned in para-8 at page-2 that on dt.25-4-84 plaintiff had committed misconduct by copying at the examination and authorities of PTS had caught the plaintiff and ousted him from the examination and sent back to the police head quarter, Junagadh. So this averment in the W.S. is not there in the order Ex.25. Therefore, order is absolutely silent about alleged misconduct and therefore, it is omnibus, inoperative and illegal. Secondly, in view of 1986 GLH 136 , the defendants have not given an opportunity of hearing to the plaintiff, so order of termination was merely a camouflage for an order of dismissal for alleged misconduct and principles of natural justice are not followed by the defendants and Article 311(2) of the Constitution of India has been violated. Secondly, in view of 1986 GLH 136 , the defendants have not given an opportunity of hearing to the plaintiff, so order of termination was merely a camouflage for an order of dismissal for alleged misconduct and principles of natural justice are not followed by the defendants and Article 311(2) of the Constitution of India has been violated. Above authority fully applies to the present case and I, therefore, accept the same. Xerox copy of chit recovered from the plaintiff is produced at Ex.26 but same is not enough to terminate the services of the plaintiff because nothing is mentioned in termination order. Plaintiff had made various representations vide Ex.15, 16, 17, 19, 20, 21 but none of the superior officers considered his applications and no opportunity was afforded to the plaintiff to present his case. So principle of natural justice also violated at all. Plaintiff has served a notice U/s.80 of CPC which is produced at Ex.17. Leaned Govt. Pleader has not proved as to how this notice is illegal, name of plaintiff, name of defendants and the remedy which plaintiff seek etc., are mentioned in the notice. So notice is legal and valid but the termination order of the plaintiff is illegal, inoperative and unconstitutional and without following the principle of natural justice. Plaintiff has therefore rightly sues the defendants for declaration and permanent injunction. Therefore, issue Nos.1 to 4 are decided in the affirmative." 4.5 The trial Court has passed following judgment and decree on 26th April 1990 : "It is hereby ordered and decreed that plaintiff's suit for declaration and permanent injunction is decreed with costs against the defendants. The order of DSP, Junagadh dt.27-4-84 discharging the plaintiff from service is unjust, improper, unconstitutional, inoperative and void and defendants are permanently restrained from terminating the service of the plaintiff and permanent injunction is further granted against defendants from preventing pay, arrears of pay and other emoluments, etc., of the plaintiff and it is further ordered that plaintiff shall be reinstated with back wages in service and defendants or their servants, officers shall not prevent the plaintiff from performing his duty as an Unarmed Police Constable. Looking to the facts and circumstances of the case, parties shall bear their own costs. Looking to the facts and circumstances of the case, parties shall bear their own costs. Decree to be drawn accordingly." 4.6 Thereafter, appeal was preferred by appellants before Assistant Judge at Junagadh being Regular Civil Appeal No.89 of 1990 which was decided on 12th April 1991, where, reasoning have been given in Para 6 to 8 by lower appellate court which are quoted as under : "6. Point Nos.1 to 4 : L.A. Shri Gadhavi for the plaintiff/respondent has argued that the impugned order of termination passed by the defendant No.8 is vague, not speaking one and no reasons are stated therein. As against this, the learned AGP for the appellants argued that police force requires discipline and such indiscipline and misconduct on the part of the plaintiff cannot be tolerated and hence, plaintiff is rightly discharged from the service. 7. On perusal of the record, Ex.23 - statement of the plaintiff reveals that pieces of papers in which, there was mention of Secs. 154, 146, 118, etc., of IPC were found but it does not come out that the same were recovered from the possession of the plaintiff or that plaintiff had brought the same in the test. Shri Gadhavi relied upon the authority reported in 1986 GLH 136 which is somewhat identical to the present case. But in that case, necessary material was recovered from the possession of the plaintiff, whereas, in this case, the necessary material was not found from the possession of the plaintiff. However, in the said authority, the Division Bench of Hon'ble Gujarat High Court held that there is nothing in the termination order that the termination was made on the ground of unsuitability or unsatisfactory conduct or the like. The authorities had not followed the procedure set up under Article 311(2) or otherwise. If the foundation of termination was malpractice alleged to have been adopted by the plaintiff, reasonable opportunity ought to have been given to the delinquent to defend himself. The order of termination was merely a camouflage for an order of dismissal for misconduct and Article 311(2) has been violated. 8. In the present case, it is obvious that the order of termination is totally silent and that it is not a speaking order. The order of termination was merely a camouflage for an order of dismissal for misconduct and Article 311(2) has been violated. 8. In the present case, it is obvious that the order of termination is totally silent and that it is not a speaking order. In the W.S. at Ex.11, it is stated by the defendants that on 25-4-84, plaintiff had committed misconduct by copying in the examination and he was caught red-handed but this is not stated in the termination order. Moreover, as decided in 1986 GLH 136 , before terminating the plaintiff from service, as per the principles of natural justice, he should have been heard. That is not done in the present case. So, the principles of natural justice have been violated. I also find that the notice served by the plaintiff on the defendants is legal and proper and the same is not challenged. Therefore, the lower court has rightly decided the suit in favour of the plaintiff granting his prayer of declaration and it has not committed any illegality or impropriety. Hence, I decide all these points in the negative." 4.7 In present Second Appeal, affidavit-in-reply on behalf of respondent is filed before this Court dated 29.11.2010 where subsequent facts have been stated which is also relevant to be considered by this Court, therefore, Para 2 to 4 are quoted as under : "2. I state and submit that after the order dated 31/3/1992 delivered in Civil Application No.393 of 1992 in Second Appeal no.23 of 1992, wherein, as far as injunction regarding reinstatement was concerned, was refused. Thereafter, I was reinstated as "Constable Unarmed" on 20/4/1992 on the condition of my passing the Police Training College Examination and I have passed the said Police Training College Examination in the year 1993. A copy of the certificate dated 11/6/1993 is annexed hereto and marked as Annexure "I" to this affidavit. I state and submit that since then, I am continuously in service without any problem or stigma. I state and submit that I have received several certificates and I am also having good service record. I am having a family of two daughters, one son who are studying in school, my wife and mother aged 85 years. I have got dependents in the family. 3. I state and submit that I have received several certificates and I am also having good service record. I am having a family of two daughters, one son who are studying in school, my wife and mother aged 85 years. I have got dependents in the family. 3. I respectfully pray before this Hon'ble Court that there being concurrent findings of facts of the two Hon'ble Courts below, the present Second Appeal may kindly be dismissed as, in the respectful submission of the answering deponent, there are no substantial questions of law and the fact that I have passed the Police Training College Examination way back in the year 1993, I may be continued in service by confirming the judgments of the Hon'ble Civil Court as well as the Hon'ble Appellate Court. 4. I also state and submit that I have received several certificates from the District Superintendent of Police and other police authorities in Junagadh for extra ordinary service, bandobast and in helping investigation of the certain disputed cases. The certificates are dated 12.1.2001, 24.11.199, 19.7.1999, 28.6.2000, 12.8.1999, 30.10.1999, 16.10.1999, 19.3.1998 and 29.9.1998. I crave leave to refer to and rely upon the said certificates as and when required at the time of hearing of this appeal." 5. In view of aforesaid affidavit-in-reply, present respondent - original plaintiff has been reinstated in service as a Constable Unarmed on 20th April 1992 on condition of his passing Police Training College Examination and has passed the PTC examination in the year of 1993 and copy of certificate dated 11th June 1993 is also annexed at Annexure 'I' to the aforesaid affidavit. 6. At the time of admitting the appeal, this Court has not granted any stay against reinstatement, but, granted stay against back wages and consequential benefits. The order passed by this Court in Civil Application No.393 of 1992 dated 31.03.1992 (Coram : Hon'ble Mr. Justice J.N. Bhatt, J.) is quoted as under : "This is an application for stay of the judgment and decree passed by the learned Assistant Judge, Junagadh, in R.C.A. No.89/90, confirming the judgment and decree passed by the learned Civil Judge (S.D.), Junagadh in R.C.S. No.738/88 and also the proceedings of Execution Application No.158 of 1991. This application is filed by the original defendants. This application is filed by the original defendants. The opponent herein is the original plaintiff, whose suit is decreed and the applicants herein who are the original defendants are directed to reinstate the plaintiff in service with full back wages. The judgment and decree passed by the trial Court came to be upheld by the District Court in Regular Civil Appeal No.89 of 1990. In view of the facts and circumstances and after hearing the learned counsels for the parties, this Court is of the opinion that the stay against the reinstatement is not justified. However, the stay against the payment of back wages granted by the Courts below should be granted. Therefore, the implementation and execution of the impugned judgment and decree in so far as it relates to the payment of back wages is stayed. The decree relating to the relief of reinstatement is not required to be stayed in the circumstances of the case. The applicants/original defendants are directed to reinstate the opponent herein on the same post from which his service came to be terminated as early as possible but not later than three weeks from today. It is also clarified that the permanent injunction restraining the original defendants was only in respect of the impugned termination order in question. The aforesaid interim order will be subject to the final decision in this Second Appeal. Civil Application stands disposed of. Rule made absolute with no order as to costs." 7. It is necessary to note that written statement has been filed by present appellant before trial Court. The date of termination is 27th April 1984 Ex.25 and notice under Section 80 was given on 27th September 1988. Before that, one application was made by plaintiff to respondents - present appellants to reconsider his case, but, his application remained unanswered. The documents have been called for by application dated 4th March, 1987 by plaintiff from respondents - present appellants, even that has not been replied. Even, subsequently, one application was made on 27th May, 1987 to DIG, Saurashtra Southern Division, Junagadh, even that has not been replied by present appellants. The reply given by present appellant at Ex.11 is dated 17th March, 1989 in civil suit. The present appellants has not raised contention that suit is time barred before trial Court. Even, subsequently, one application was made on 27th May, 1987 to DIG, Saurashtra Southern Division, Junagadh, even that has not been replied by present appellants. The reply given by present appellant at Ex.11 is dated 17th March, 1989 in civil suit. The present appellants has not raised contention that suit is time barred before trial Court. Present appellant has made clear in written statement at internal page 2 Ex.11 that service of plaintiff was terminated because of misconduct committed by him on 25th April 1984 and he was copying in departmental examination, therefore, serious misconduct has been committed which resulted into termination. However, order of termination is an innocuous order and no allegation or stigma has been alleged or mentioned in termination order. Before trial Court, copies of one application made by respondent dated 4th March, 1987, 27th May 1987 and one notice dated 27th September 1988 under Section 80 of CPC have been served to appellant. One application was made by plaintiff on 14th June 1984 which is at Ex.19 with a request to reconsider his case and to give reasonable opportunity of hearing because according to plaintiff, he has not committed any misconduct while appearing in examination of department. The report which was submitted against him was not found to be correct, therefore, he requested that before passing termination order, at least departmental inquiry may be initiated and reasonable opportunity of hearing may be given to plaintiff. For that application dated 14th June 1984, reminders were sent on 24th May 1985, 17th April 1986 at Ex.20 and Ex.21. The order of termination was produced on record by appellant at Ex.25, where, his service was terminated as not required vide order dated 27th April, 1984. No allegations have been made or stigma has been attached being an innocuous order of termination has been passed by appellants. No oral evidence has been led by both parties before trial Court and entire matter has been decided by trial Court considering the question before passing termination order as referred above Ex.25, whether departmental inquiry is necessary or not as required under Article 311(2) of the Constitution of India ? And whether principles of natural justice is required to be followed by appellants before passing termination order against plaintiff or not ? And whether principles of natural justice is required to be followed by appellants before passing termination order against plaintiff or not ? According to respondent plaintiff, appeal was preferred to DIG, Junagadh of 27th May 1987 but no reply was given and from that date, cause of action arose. 8. Learned AGP Ms. Vandana Bhatt appearing on behalf of appellants - State Authorities vehemently submitted that a simple termination order has been passed by department, therefore, there is no foundation of allegation or stigma attached to termination order and in such circumstances, motive cannot consider to be a stigma and therefore, view taken by trial Court and taken by lower appellate court is erroneous. For that, she relied upon certain decision of Apex Court reported in AIR 1981 SC 957 - The Union of India and others v. P.S. Bhatt, AIR 1985 SC 84 - Nepal Singh v. State of U.P. and others, AIR 1997 SC 2560 - Surjeet Singh Chhabra v. Union of India and others, AIR 2000 SC 1706 - Chandra Prakash Shahi v. State of U.P. and others and AIR 2003 SC 2041 - Canara Bank and others v. Shri Debasis Das and others Except these, no other decision has been relied upon by learned AGP Ms. Bhatt on behalf of appellants. 9. It is necessary to note that no argument has been made by learned AGP Ms. Bhatt in support of substantial question of law raised and involved and framed by this Court as referred above in respect to whether suit was filed by plaintiff is time barred or not ? And if so, whether the suit was time barred ? And whether it is open for appellants to contend that suit was time barred and also no submission has been made to point out that Courts below have committed substantial error of law in granting an absolute injunction in terms of prayer made in plaint by plaintiff. 10. Therefore, learned advocate Mr. A.H. Desai appearing on behalf of respondent - plaintiff relied upon one decision of this court decided by Division Bench of this Court in case of Anopsinh Jatubhai v. V.K. Gupta, District Superintendent of Police, Jamnagar and Others reported in 1986 GLH 136 . The Division Bench of this Court has examined identical question of facts and law which has been made applicable to the facts of this case. The Division Bench of this Court has examined identical question of facts and law which has been made applicable to the facts of this case. The said decision has considered by below Courts. The relevant discussion made in Para 2 to 4 are quoted as under : "2. The learned Single Judge of our High Court, after considering the facts of the case and observing that the order of termination is not based upon the unfair practice adopted by the appellants herein, but termination simpliciter since they were probationers, dismissed the Special Civil Applications. According to the learned Judge, the unfair practices alleged against the appellants are not the foundation for the termination order, but that was the motive behind such an order passed. The learned Single Judge in deciding this aspect of the case relied upon the decision in Gout. Branch Press v. D. B. Bellappa reported in ATR 1979 SC 429 and the decision in State of U.P. v. Bhoop Singh reported in In AIR 1979 SC 429 the Supreme Court observed: "If the services of a temporary Government servants are terminated in accordance with the conditions of his service on the ground of unsatisfactory conduct or his unsuitability for the job and/or for his work being unsatisfactory, or for a" like reason which marks him off a class apart from other temporary servants who have been retained in service, there is no question of the applicability of Article 16. Conversely, if the services of temporary Government servants are terminated arbitrarily, and not on the ground of his unsuitability, unsatisfactory conduct or the like which would put him in a class apart from his juniors in the same service, a question of unfair discrimination may arise, notwithstanding the fact that in terminating his service, the appointing authority was purporting to act in accordance with the terms of the employment." The Supreme Court in that decision finally held as follows : "The termination of service was made arbitrarily and not on ground of unsuitability or other reason. It was further observed that it was perhaps open to the Government to say in view of the complaint alluded to in the show-cause notice against the integrity and fidelity of the employee, that the former had lost confidence in the latter and considered him unsuitable to be continued in the post which was one of trust and confidence. It was further observed that it was perhaps open to the Government to say in view of the complaint alluded to in the show-cause notice against the integrity and fidelity of the employee, that the former had lost confidence in the latter and considered him unsuitable to be continued in the post which was one of trust and confidence. But when the Government instead of taking any such plea has, with obdurate persistency, stuck to the position that the employee's service has been terminated without any reason, it amounted to nearly admitting that the power reserved to the employer under the conditions of the employment, has been exercised arbitrarily." In yet another decision reported in State of U.P. v. Bhoop Singh, AIR 1979 SC 684 which was referred to by the learned Single Judge the Supreme Court observed : "It is apparent from the facts of this case that if the impugned order be considered as made in the light of the allegations against the respondent concerning the woman, the conduct of the respondent constituted a motive merely for making the order and was not the foundation of that order." Thus in this decision, the Supreme Court differentiated between motive and the foundation for taking action in terminating the service of a probationer. The learned Single Judge found that the authorities concerned did not base their conclusion on the unfair practice adopted by the appellants in their examination. With that view, he dismissed both the Special Civil Applications filed by the appellants. We have carefully gone through the affidavit in support of the main petition, the reply affidavit and the order of termination passed by the authorities concerned and other records. The order of termination of the appellant in L.P.A. No. 233 of 1985 reads as follows : "You Mr. Anopsingh Jatuba as temporary unarmed recruit constable at present at Police Head Quarter's Service is not required by the department and as your appointment is solely on temporary basis, you are relieved from the service after office hours of today by paying one week notice pay as per Rule 33 of the B.G.S.R. Part 1." The order of termination of the appellant in L.P.A. No. 234 of 1985 reads as follows : "You Mr. Jymansingh Raiyabji as temporary unarmed recruit constable at present at Police Head Quarter's Service is not required by the department and as your appointment is solely on temporary basis, you are relieved from the service after office hours of today by paying one week notice pay as per; Rule 33 of the B.C.S.R., Part 1." There is nothing in the termination order that such termination was made on the ground of unsuitability, unsatisfactory conduct or the like. If it is the question of misconduct, the authorities concerned ought to have followed the procedure set up under Article 311 (2) or otherwise, they will be condemning a person without being heard. If it is for the purpose of simply terminating the services of a probationer, the order should have stated that he is not suitable to be continued in service. In the absence of any of these adjectives for terminating the services of the appellants herein, we have to look into the affidavit-in-reply filed by the respondents herein. It is stated by the respondents in the affidavit filed by one Gupta, District Superintendent of Police, Jamnagar that the termination of services of the appellants has nothing to do with the act of copying at the examination in 'C' Division held at P.T.S., Baroda on 20-2- 1984. The affidavit further states that, however, on going through the papers of enquiry received from the Principal, P.T.S., Baroda it is noticed that the appellants were outarred for the examination for the act of copying. It is in the affidavit filed on behalf of the respondents that the conduct of the appellants which is a gross misconduct cannot be tolerated in a disciplined force like Police. It further states that all the candidates were instructed and warned to refrain from malpractices in the examination or also the defaulting one would be sent back to their districts. In spite of that if a candidate indulges in copying, he has to blame himself for the consequences. The affidavit finally states that the services of the appellants were merely terminated so that they may not be debarred from service in any other Government Department. Reading these averments in this affidavit-in-reply, it is clear that the authorities concerned had the foundation for the termination only from the malpractice of copying made by the appellants herein. The affidavit finally states that the services of the appellants were merely terminated so that they may not be debarred from service in any other Government Department. Reading these averments in this affidavit-in-reply, it is clear that the authorities concerned had the foundation for the termination only from the malpractice of copying made by the appellants herein. It is just to give them some opportunity to enter into some other service, these allegations were not mentioned in the termination order. This is clear from the last averment made by the respondents in the affidavit filed on their behalf by Mr. Gupta, the Deputy Superintendent of Police. In the decision in Anoop Jaiswal v. Government of India reported in AIR 1984 SC 636 the Supreme Court has observed as follows : "The form of the order is not decisive as to whether the order is by way of punishment and that even an innocuously worded order terminating the service may in the fact and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311(2). Where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. Where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee." The Supreme Court has further observed : "If on reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for the incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground if the servant has not been afforded a reasonable opportunity to defend himself as provided in Article 311 (2) of the Constitution." In the decision in Nepal Singh v. State of U.P., reported in AIR 1985 SC 84 , the Supreme Court had occasion to consider the termination order of the authority concerned in respect of a Sub-Inspector who was working in a temporary capacity. This temporary Sub-Inspector came in for criticism for contracting a second marriage without following Government Servants' Conduct Rules. The Superintendent of Police in this case had described this Sub- Inspector as a corrupt Officer who was not straight forward. While so, the Deputy Inspector General of Police, Bareilly Range, purporting to act under the Rules, passed an innocuous order simply stating that services of this Sub-Inspector were not required any more and as such his services were terminated with a month's pay in lieu of notice. This was questioned by way of a writ petition by the concerned Sub-Inspector before the High Court and a single Judge of the High Court dismissed the writ petition. On appeal, the Division Bench concurred with the single Judge and dismissed the appeal. On appeal to the Supreme Court, the Supreme Court observed : "It is well settled that in dealing with a Government servant the State must conform to the constitutional requirements of Articles 14 and 16 of the Constitution. On appeal, the Division Bench concurred with the single Judge and dismissed the appeal. On appeal to the Supreme Court, the Supreme Court observed : "It is well settled that in dealing with a Government servant the State must conform to the constitutional requirements of Articles 14 and 16 of the Constitution. An arbitrary exercise of power by the State violates those constitutional guarantees, for a fundamental implication in the guarantee of equality and of protection against discrimination is that fair and just treatment will be accorded to all, whether individually or jointly as a class. When a Government servant satisfies the Court prima facie that an order terminating his services violates Articles 14 and 16, the competent authority must discharge the burden of showing that the power to terminate the services was exercised honestly and in good faith, on valid considerations, fairly and without discrimination." In that case instead of taking proceedings for the misconduct, the Deputy Inspector General of Police, by an innocuous order, simply terminated the services of the Sub-Inspector, after dropping the enquiry against him. In that connection, the Supreme Court observed: "We may observe that where allegations of misconduct are levelled against a Government servant, and it is a case where the provisions of Article 311 (2) of the Constitution should be applied, it is not open to the competent authority to take the view that holding the enquiry contemplated by that clause would be a bother or a nuisance and that therefore it is entitled to avoid the mandate of that provision and resort to the guise of an ex facie innocuous termination order. The Court will view with great dis-favour any attempt to circumvent the constitutional provision of Article 311 (2) in a case where that provision comes into play." With the above said observation, the Supreme Court set aside the judgment of the High Court and allowed the appeal by quashing the impugned order of termination. Applying the principles laid down in the abovesaid Supreme Court decisions, it is clear that the respondents terminated the services of the appellants not because their work is not satisfactory, but because of the fact they have indulged in unfair practice of copying. This is very clear from the affidavit-in-reply filed by one Gupta on behalf of the respondents. Applying the principles laid down in the abovesaid Supreme Court decisions, it is clear that the respondents terminated the services of the appellants not because their work is not satisfactory, but because of the fact they have indulged in unfair practice of copying. This is very clear from the affidavit-in-reply filed by one Gupta on behalf of the respondents. Further, the authority concerned, while terminating the services, had the report of the Principal, P.T.S., Baroda which states that the appellants were not permitted to write the examination for their act of copying. When especially these facts have been taken into consideration and when, as a matter of fact, the affidavit-in-reply clearly states that the appellants' services were merely terminated so that they may hot be debarred from service in any other Government Department, it amply establishes the foundation for the termination is the malpractice adopted by the appellants herein. If that be so, the orders of termination, without affording any opportunity to the appellants must fair. The simple order of termination as if the petitioners are only probationers is merely a camouflage for an order of dismissal for misconduct and as such the same cannot be upheld in as much as the appellants never had an opportunity to meet such allegations levelled against them. Article 311(2) has been clearly violated in this case. 3. The learned singe Judge committed a mistake in observing that the appellants cannot succeed by creating a dilemma, i.e. if the respondents alleged any charges against the appellants, the same will be hit by Article 311 (2) and if no charges are levelled against the appellants, the termination will be hit by discrimination offending Article 14 of the Constitution. We are not concerned with regard to the difficult situation the respondents have been put in terminating the services, of the appellants. We are more concerned as to whether the foundation for the termination is the malpractice indulged in by the appellants in copying at the examination hall. As we have seen from the facts of the case and the allegation in the affidavit-in-reply, the respondents terminated the services of the appellants only for the malpractices and they did not mention the same in order to give an opportunity to the appellants to seek some other Government employment without any stigma attached to them. 4. As we have seen from the facts of the case and the allegation in the affidavit-in-reply, the respondents terminated the services of the appellants only for the malpractices and they did not mention the same in order to give an opportunity to the appellants to seek some other Government employment without any stigma attached to them. 4. The other point as regards violation of Article 14 will not arise in as much as we have found that the order of termination has to fail since the procedure laid down under Article 311 (2) has not been followed on the facts and circumstances of the present case." 11. The aforesaid decision of Division Bench of this Court has been considered by trial Court as well as by lower appellate court, which squarely covered the issue which was raised by plaintiff before trial Court. 12. Recently, Apex Court consisting three Hon'ble Judge's Bench has examined identical question of law that when probationer was discharged from service while passing order of discharge against him innocuously, but, facts showing that inquiries conducted against respondent on complaint filed against him were considered though in inquiry, respondent was exonerated. Moreover, prejudice of department against respondent also clear from departure made from Rules only for a year so as to deny him right to opt for German language. Order of discharge in facts cannot but be said to be punitive and liable to be set aside as was passed without giving any reasonable opportunity of defence to respondent. 13. In aforesaid recent decision in case of Union of India v. Mahaveer C. Singhvi reported in 2010 AIR SCW 5438 almost decision on the subject of terminating service of probationer on the basis of complaint or misconduct; whether opportunity of defense is required to be given or not and such termination based on misconduct or allegation is considered to be stigma or complaint is considered by the Apex Court. Before Apex Court, appellant - Union of India has raised same contention which has been raised by learned AGP Ms. Bhatt before this Court that since no inquiry was contemplated against respondent, order of discharge simplicitor during respondent's period of probationary service without attaching stigma and valid and no interference was called for while relying upon decision of Apex Court in case of Dipti Prakash Banerajee reported in AIR 1999 SC 983 . Bhatt before this Court that since no inquiry was contemplated against respondent, order of discharge simplicitor during respondent's period of probationary service without attaching stigma and valid and no interference was called for while relying upon decision of Apex Court in case of Dipti Prakash Banerajee reported in AIR 1999 SC 983 . The Apex Court has after considering aforesaid contention raised by Union of India has decided the scope of interference in such cases of termination of probationer's service on the basis of misconduct or allegation which has been considered to be a punitive and attached to stigma required detailed inquiry as well as reasonable opportunity of defence before passing termination order against such employee who was working on probation. 14. It is clear from record that service of plaintiff was not terminated because of unsatisfactory work during probation period, but, in facts of this case that a specific allegation has been made by appellant in written statement Ex.11 that plaintiff has committed serious misconduct of copying in departmental examination and he was caught red-handed, therefore, his service was terminated. Therefore, relevant discussion in respect to legal aspect which has been raised by learned AGP Ms. Bhatt before this Court has been considered by Apex Court in case of Union of India v. Mahaveer C. Singhvi reported in 2010 AIR SCW 5438 in Para 13 to 24 and 26 to 28, which are quoted as under : "13. After considering the various decisions cited by the learned Additional Solicitor General, beginning with the decision of this Court in Purshotam Lal Dhingra v. Union of India, AIR 1958 SC 36 , the High Court accepted the case of the Respondent and observed that it was left with no doubt that the entire object of the exercise was to remove the Respondent for something about which they had convinced themselves, but did not think it necessary to give the Respondent an opportunity to clear his name. The High Court by the impugned judgment dated 29.09.2008, accordingly quashed the order of discharge of the Respondent from the Indian Foreign Service dated 13.6.2002, along with the orders passed by the Tribunal on 4.9.2003, dismissing the Respondent's O.A. No.2038 of 2002 and on 14.11.2003 rejecting the Respondent's Review Application No.323 of 2003, with a direction to reinstate the Respondent in the Indian Foreign Service Cadre of the 1999 Batch, along with all consequential benefits, including consequential seniority, within a month from the date of the order. 14. In allowing the Writ Petition filed by the Respondent, the High Court referred to and relied on the decision of this Court in the case of Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. & Anr., (1999) 2 SCC 21 wherein this Court had held that in cases where termination is proceeded by an enquiry, evidence is received and findings as to misconduct of a definite nature are arrived at behind the back of the officer and where on the basis of such a report the termination order is issued, such an order would be violative of the principles of natural justice. 15. The High Court also referred to the Special Bench decision of this Court in Shamsher Singh v. State of Punjab and another, 1974 (2) SCC 831 which was a decision rendered by a Bench of seven Judges, holding that the decisive factor in the context of the discharge of a probationer from service is the substance of the order and not the form in determining whether the order of discharge is stigmatic or not or whether the same formed the motive for or foundation of the order. 16. In the facts of the case the High Court came to the conclusion that a one-sided inquiry had been conducted at different levels. Opinions were expressed and definite conclusions relating to the Respondent's culpability were reached by key officials who had convinced themselves in that regard. The impugned decision to discharge the Respondent from service was not based on mere suspicion alone. However, it was all done behind the bank of the Respondent and accordingly the alleged misconduct for which the services of the respondent were brought to an end was not merely the motive for the said decision but was clearly the foundation of the same. 17. However, it was all done behind the bank of the Respondent and accordingly the alleged misconduct for which the services of the respondent were brought to an end was not merely the motive for the said decision but was clearly the foundation of the same. 17. The High Court was convinced that although the order of discharge dated 13.6.2002 by which the Respondent was discharged from service was not without substance, the same was bad and liable to be quashed since the respondent's services had been terminated without a formal inquiry and without giving him any reasonable opportunity to defend himself. 18. Appearing for the Petitioners, Mr. P.P. Malhotra, learned Additional Solicitor General of India, reiterated the arguments which had been advanced before the learned Tribunal and also before the High Court emphasizing that since the Respondent had been discharged from service by a simple order of discharge without any stigma attached thereto, the Respondent was not entitled to the protection of Article 311(2) of the Constitution. It was urged that since the Respondent had not completed the probationary period, and was a probationer when the order of discharge was made, it was within the competence of the petitioners to pass such an order if they were dissatisfied with the performance of the respondents during the probation period. It was sought to be urged that an assessment of a candidate appointed on probation has to be made before his services may be confirmed. The process to make an assessment of the performance of the probationer often requires the confirming authorities to look into and consider his completer performance, which could include lapses on his part which could have adverse consequences for the employer. 19. Mr. Malhotra submitted that in the instance case, the indisciplined acts and behaviour of the respondent during his period of probation were noticed and it was found that ultimately become an embarrassment and thus, were of the view that he should be discharged from the service. Mr. 19. Mr. Malhotra submitted that in the instance case, the indisciplined acts and behaviour of the respondent during his period of probation were noticed and it was found that ultimately become an embarrassment and thus, were of the view that he should be discharged from the service. Mr. Malhotra repeated the stand taken by him before the High Court that it was not the intention of the petitioners to conduct an inquiry into the various material received relating to the services of the respondents, and, accordingly, a decision was taken to discharge him from service on the ground of his unsatisfactory performance during his period of probation, although, the same does not find any place in the order of discharge which was an order of discharge simplicitor. Mr. Malhotra urged that in a series of judgments passed by this Court it had repeated been held that if no stigma was attached to the separation of ways between the authorities and the probationer, the same would not amount to being the foundation of a discharge simplicitor. Mr. Malhotra urged that the High Court had erred in taking a contrary stand and had travelled beyond his jurisdiction in going beyond the satisfaction of the authorities in reaching the conclusion that the inquiry conducted against the respondent formed the foundation and not the motive for the impugned order of discharged. 20. In the aforesaid regard, Mr. Malhotra firstly referred to the decision of this court in Purshottam Lal Dhingra v. Union of India reported in AIR 1958 SC 36 as he scope of article 311 of the constitution of India in relation to the appointment of a govt. servant to a permanent post either in a substantive capacity or on probation or even on an officiating basis. Dealing with appointments on probation, this court observed that an appointment on permanent post in govt. service on probation means, as in the case of a person appointed by a private employer, that the person so appointed is taken on trial. Such an employment on probation would generally for fixed periods, but could also remained unspecified and under the ordinary law of master and servant would come to an end during or at the end of the probation period, if the servant so appointed on trial was found unsuitable and his service was terminated by a notice. Such an employment on probation would generally for fixed periods, but could also remained unspecified and under the ordinary law of master and servant would come to an end during or at the end of the probation period, if the servant so appointed on trial was found unsuitable and his service was terminated by a notice. It was accordingly held that appointment to a permanent post in govt. service on probation is of a transitory character and the person so appointed does not acquire any substantive right to the post and his service can be terminated at any time during the period of probation 21. Reference was also made to the decision referred by this Court in Benjamin (A.G.) v. Union of India 1967 (1) LLJ 718 (SC) where the principles enunciated in Parsottamlal Dhingra (supra) were followed in regard to the termination of service of a temporary Government servant. What was sought to be highlighted was the right of the authorities to stop a departmental proceeding and to pass an order of discharge simplicitor to avoid attaching a stigma to the order of dismissal. 22. Several other decisions on the same questions namely, Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences, (2002) 1 SCC 520 , State of Haryana v. Satyender Singh Rathore, (2005) 7 SCC 518 , Dipti Prakash Banerjee (supra); (4) Jai Singh v. Union of India, (2006) 9 SCC 717 Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, AIR 1980 SC 1896 Life Insurance Corporation of India v. Shri Raghvendra Sesharigi Rao Kulkarni, AIR 1998 SC 327 and State of Punjab v. Shri Sukhraj Bahadur, AIR 1968 SC 1089 were also referred to by Mr. Malhotra. In the two later cases, this Court relying on the principles laid down in Parsottam Lal Dhingra's case (supra), reiterated the law that the requirement to hold a regular departmental inquiry before dispensing with the services of a probationer cannot be invoked in the case of a probationer, especially when his services are terminated by an innocuous order which does not cast any stigma on him. However, it was also observed that it cannot be laid down as a general rule that in no case can an enquiry be held. However, it was also observed that it cannot be laid down as a general rule that in no case can an enquiry be held. If the termination was punitive and was brought about on the ground of misconduct, Article 311(2) would be attracted and in such a case a departmental inquiry would have to be conducted. 23. Mr. Malhotra lastly referred to one of the latest decision of this Court in this field in Chaitanya Prakash & Anr. v. H. Omkarappa, (2010) 2 SCC 623 wherein it was observed that even if an order of termination refers to unsatisfactory service of the concerned employee, the same could not be termed as stigmatic. 24. Mr. Malhotra submitted that having regarding to the consistent view of this Court that the services of a probationer can be discharged during the probationary period on account of unsatisfactory service by way of termination simplicitor, without holding a departmental inquiry, the order of the High Court was contrary to the settled legal position and was, therefore, liable to be set aside. 26. Mr. Bhushan submitted that the High Court had correctly held that the order of discharge was only a camouflage, and in substance, it was a punitive order based on malafide considerations relating to findings of misconduct recorded against the respondent behind his back. 27. Mr. Bhushan submitted that, as has been rightly held that by the High Court, the case of the respondent was fully covered by the series of decisions of this Court which have also been referred to on behalf of the petitioners. Mr. Bhushan, however, laid special emphasize on the following decisions of this Court, some of which have also been cited on behalf of the petitioners namely, State of Bihar v. Shiva Bhikshuk Mishra, (1970) 2 SCC 871 , Shamsher Singh (supra); Gujarat Steel Tubes Ltd., (supra); (4) Anoop Jaiswal v. Government of India & Anr., 1984 (2) SCC 269, Nehru Yuva Kendra Sangathan v. Mehboob Alam Laskar, (2008) 2 SCC 479 wherein, it has been repeatedly observed that if a discharge is based upon misconduct or if there is a live connection between the allegations of misconduct and discharge, then, the same, even if couched in language which is not stigmatic would amount to a punishment for which departmental inquiry was imperative. Various other decisions were also cited by Mr. Various other decisions were also cited by Mr. Bhushan, which reflect the same views as expressed by this Court in the above mentioned decisions. 28. From the facts as disclosed and the submissions made on behalf of the respective parties, there is little doubts in our minds that the order dated 13th June 2002, by which the respondent was discharged from service, was punitive in character and had been motivated by considerations which are not reflected in the said order." 15. In view of recent decision as referred above where exact similar question of law has been examined and also considering decision of Division Bench of this Court in case of Anopsinh (supra), contention raised by learned AGP Ms. Bhatt before this Court that allegations/misconduct alleged against plaintiff was not a punitive for terminating service of probationer, that cannot be accepted, because, in written statement Ex.11, a specific case has been put up by appellant before trial Court that service of plaintiff was terminated because of serious misconduct committed by him and undisputed innocuous order of termination has been passed by appellant against plaintiff without giving reasonable opportunity of hearing to plaintiff as well as without holding any departmental inquiry against plaintiff and no opportunity of defence has been given to plaintiff, therefore, trial Court has rightly set aside order of termination being a punitive attached with stigma passed by appellant without giving any reasonable opportunity of hearing to plaintiff. 16. In light of this background, contention that suit was time barred cannot be permitted to be raised or allowed to contend first time before this Court in second appeal, because, that question is relating to facts and same was not raised before trial Court as well as lower appellate court by appellants. Therefore, according to my opinion, appellant is not entitled to raise such contention first time before this Court that suit was time barred. However, looking to facts on record as referred by this Court that after termination order, number of applications have been made by plaintiff to respondents to reconsider his case as well as to give reasonable opportunity of hearing to him, but, all the applications as appeal to DIG dated 27.05.1987 as referred above by this Court remained unanswered. However, looking to facts on record as referred by this Court that after termination order, number of applications have been made by plaintiff to respondents to reconsider his case as well as to give reasonable opportunity of hearing to him, but, all the applications as appeal to DIG dated 27.05.1987 as referred above by this Court remained unanswered. Thereafter, ultimately, under Section 80, statutory notice was served to appellant, therefore, in such factual aspects which are found from record and each application is proved and exhibited before trial Court, therefore, even on that basis, it cannot consider that suit was time barred. The law decided by Division Bench of this Court in identical facts has been rightly considered by trial Court as well as by lower appellate Court. 17. In this second appeal, substantial question of law has been formulated by this court on 18th March, 1992, as under: "(1) Whether it is open for the appellants to contend that the suit was time barred? If so, whether the suit was time barred? (2) Whether the Courts below have committed a substantial error in granting an absolute injunction in terms in which it is granted?" 18. It is necessary to note that this contention was not raised by appellants before trial court as well as lower appellate court. Not only that, no such contention has been raised or ground is mentioned by appellant in memo of present second appeal. This being a new plea raised by appellants which is relating to question of fact or mixed question of law and facts, therefore, that cannot be allowed to be raised to appellants for first time before this court in second appeal because this court cannot disturb finding of fact recorded by courts below. It is also necessary to note that learned AGP Ms. Vandana Bhatt appearing for appellants has also not made any submission whatsoever in respect to substantial question of law formulated by this court as to whether it is open for appellants to contend that suit was time barred or not and if yes, whether suit was time barred. However, considering fact that substantial question of law has been formulated by this court, this court has examined substantial question as formulated by this court. 19. However, considering fact that substantial question of law has been formulated by this court, this court has examined substantial question as formulated by this court. 19. The Apex Court has, in case of Balai Chandra Hazara v. Shewdhari Jadav, AIR 1978 SC 1062 , observed as under in para 9: "9. There is a near consensus amongst the various High Courts that ordinarily an appellant is not entitled in an appeal under Cl. 15 to be heard on points which have not been raised before the Judge from whose judgment the appeal is preferred. Now, if in second appeal the findings of fact recorded by the first appellate court are taken as binding unless fresh additional evidence is permitted to be led when again appreciation of evidence to record a finding of fact would become necessary, that position is not altered even if amendment of pleadings is granted which puts into controversy some new facts alleged in amended pleadings and therefore the Court hearing the second appeal after granting amendment could not take over the function of the trial court or the first appellate Court and undertake appreciation of evidence and record findings of facts. That is not the function envisaged by the Code of the Court hearing second appeal under Section 100. This becomes crystal clear from the provision contained in S. 103 which defines the power of the High Court to determine a question of fact while hearing second appeal. But this power of the Court is limited to evidence on record which again is sufficient to determine an issue of fact necessary for disposal of the appeal and which has not been determined by the lower appellate Court or which has been wrongly determined by such court. When pleadings are amended at the stage of the appeal under Cl. 15 of the Letters Patent and fresh allegations of facts are thus introduced in the controversy which necessitate additional evidence being permitted it would not be open to the Court to proceed to record evidence and to appreciate the evidence and record findings of fact, a function which even ordinarily is not undertaken by the High Court hearing the second appeal, much less can it be done while hearing an appeal under Cl. 15 of the Letters Patent. 15 of the Letters Patent. When on account of a subsequent change in law, amendment of the pleadings is granted which raises disputed questions of fact, the situation would not be one governed by Order XLI, Rule 27. At that stage it could not be said that the appellate court is permitting production of additional evidence, oral or documentary on the ground that the court from whose decree the appeal is preferred has refused to adduce evidence which ought to have been admitted or the appellate court requires any documents to be produced or any witness to be examined to enable it to pronounce judgment. Nor would the situation be one which could be covered under the expression "other substantial cause." Once pleadings are permitted to be amended which bring into focus altogether new or fresh disputed questions of fact which have to be resolved on additional evidence that would be necessary to be led, the function is one of appreciation of evidence more appropriately to be undertaken by the trial court or at the most the first appellate court but not the High Court hearing the second appeal or an appeal under Cl. 15 of the Letters Patent. It is not for a moment suggested that at the stage at which leave to amend pleadings has been granted the High Court was not competent to grant it. In fact, in an identical situation in B. Banerjee's case, AIR 1975 SC 1146 (supra) this court had in terms indicated that to avoid hardship to the plaintiff landlord the appropriate thing would be to grant leave to amend the pleading and give an equal opportunity to the defendant to controvert if he so chooses what the plaintiff contends by amended pleading. But once that is done immediately the question of jurisdiction of the court hearing the appeal under Cl. 15 of the Letters Patent would arise and if the appeal was entertained against the judgment rendered by the High Court in second appeal the limitations on the power of the High Court hearing the second appeal will ipso facto limit and circumscribe the jurisdiction of the appellate Bench. 15 of the Letters Patent would arise and if the appeal was entertained against the judgment rendered by the High Court in second appeal the limitations on the power of the High Court hearing the second appeal will ipso facto limit and circumscribe the jurisdiction of the appellate Bench. If the High Court while hearing second appeal, conceding that it could have allowed amendment of pleading, where the amended pleadings substantially raise disputed questions of fact which need resolution afresh after additional evidence, could not undertake the exercise of recording evidence and appreciating it and recording findings of fact, but could appropriately remand the case to the trial court, the Bench hearing the appeal against the judgment in second appeal could not enlarge its jurisdiction by undertaking that forbidden exercise. It would, therefore appear that when a Bench of a High Court is hearing an appeal preferred upon a certificate granted under Cl. 15 of the Letters Patent by a single Judge of the High Court who by his judgment has disposed of the second appeal, the appellate Bench would be subject to the limitation on its power and jurisdiction to appreciate or re appreciate evidence and to record findings of fact which were never raised before the trial court or the first appellate court as the pleadings were permitted to be amended by it and the question was raised for the first time before it, to the same extent as the High Court hearing second appeal with constraints of Ss. 100 and 103 of the Code. It must be distinctly understood that admitting evidence is entirely different from appreciating it and acting upon it. The Judicial Committee of the Privy Council in Indrajit Pratap Bahadur Sahai v. Amar Singh, AIR 1923 PC 128 was concerned with the ambit of jurisdiction of the appellate court to admit evidence under Order XLI, Rule 27, it was held that the jurisdiction can be exercised at the instance of a party and the Judicial Committee has unrestricted power to admit documents where sufficient grounds have been shown for their having not been produced at the initial stage of the litigation. This view was affirmed by this Court in Surinder Kumar v. Gian Chand, AIR 1957 SC 875 But that has no relevance to the situation under discussion here." 20. This view was affirmed by this Court in Surinder Kumar v. Gian Chand, AIR 1957 SC 875 But that has no relevance to the situation under discussion here." 20. The Apex Court has, in case of Tirumala Tirupati Devasthanams v. KM Krishnaiah, AIR 1998 SC 1132 , observed as under in para 15: "15. The plaintiff's case that he and his predecessors were in possession for more than 60 years was therefore found against him. If that be so, the plaintiff could not claim that he must be taken to be one of the 'encroachers' referred to in Ex. B6 delivery receipt dated 12-1-1946 Therefore, there was no scope for the learned Judge to hold that the plaintiff was in possession before or after 12-1-1946 so as to prescribe title by adverse possession against the TTD resulting in extinguishment of the title of the TTD. In any event, when there was no issue on the question of adverse possession in the Courts below, the Second Appellate Court could not, for the first time, have given a finding that the title of the TTD stood extinguished. The following finding in Second Appeal that, for the TTD: ". . . . . no physical possession of the property was obtained till, 12-1-1946 or thereafter. The defendants' title to the suit property was thus extinguished" is, therefore, unsupportable. We accordingly set aside the same and hold that the TTD continues to have absolute title to the property of Ac 2.29 in S.N. 669/1 and 669/2 and that its title never stood 'extinguished'. Point 2 is decided accordingly against the plaintiff and in favour of the appellant." 21. The Apex Court has, in case of Gurucharan Koeri and others v. Bibi Shamsunissa, reported in AIR 1994 SC 663 , observed as under in para 4: "4. The learned counsel appearing for the respondent could not point out from the records of the appeal that this objection had been taken on behalf at any earlier stage and the Courts below have gone into this question. It cannot be disputed that it is a mixed question of fact and law. In such a situation, we are left with no option but to set aside the judgment of the High Court and to remit the case back to the High Court for disposal in accordance with law. The appeal is accordingly allowed. It cannot be disputed that it is a mixed question of fact and law. In such a situation, we are left with no option but to set aside the judgment of the High Court and to remit the case back to the High Court for disposal in accordance with law. The appeal is accordingly allowed. In the facts and circumstances of the case, there shall be no order as to costs. As the suit had been filed as early as in the year 1970, the High Court is requested to dispose of the said appeal as early as possible." 22. In case of Pathan Murtazakhan Dadamkhan and others v. Pathan Pirhan, AIR 1993 SC 1750 apex court has observed as under in para 2: "2. In the High Court, the appellants sought two contentions, namely, by operation of Section 2-A which was brought by way of amendment of Section 48 to the Bombay Tenancy Act, 1939, the mortgagee became a deemed tenant. It was not permitted to argue as is not a pure question of law but is a mixed question of law and fact which needs investigation of facts. It was neither raised in the pleadings nor argued either before the trial Court or the appellate Court. Therefore, the question raised in the second appeal for the first time was disallowed. The second question namely, the jurisdiction of the Civil Court to declare the tenancy rights by operation of the Amendment Act, 5/73 which brought Section 85-A on statute with retrospective effect. It ousted the jurisdiction of the Civil Court to decide the dispute of tenancy rights in pending suit. This contention too was negatived as when the Amendment Act came into force, the second appeal was pending and therefore the High Court held that the Civil Court was not ousted to exercise the jurisdiction and to refer the matter to the Revenue Court for adjudication whether the appellants were, or were not deemed tenants. The same contention was reiterated before us. Placing reliance on a Division Bench judgment of the Gujarat High Court in Salman Raje v. Madhavsang Banesang, reported in ILR (1963) Guj 722, Shri M.V. Goswami, the learned Counsel for the appellants contended that by operation of Section 2-A, the appellants are deemed tenants. Once the appellants are deemed tenants, the Revenue Court has to decide that issue. Placing reliance on a Division Bench judgment of the Gujarat High Court in Salman Raje v. Madhavsang Banesang, reported in ILR (1963) Guj 722, Shri M.V. Goswami, the learned Counsel for the appellants contended that by operation of Section 2-A, the appellants are deemed tenants. Once the appellants are deemed tenants, the Revenue Court has to decide that issue. The second appeal is a continuation of the suit and therefore, the High Court is not right in rejecting the claims of the appellants. It is not necessary to express any opinion on the correctness of the judgment of the Division Bench of the Gujarat High Court. Suffice it to say that the appellants had not specifically pleaded that the appellants are deemed tenants by operation of Section 2-A of the Act. What was pleaded in the written statement was that initially the appellants' predecessor was continuing as cultivating tenant. But by virtue of the mortgage, their tenancy right merged in the right as usufructuary mortgagee. On redemption preexisting tenancy rights get revived. But that plea was not pursued. A new plea based on Sec. 2-A was sought to be raised for the first time in the High Court. The High Court rightly did not permit the appellants to raise the plea of a deemed tenancy as the said claim needs investigation based on factual foundation which was lacking. Once the right of tenancy is not permitted to be raised, the question of construction of Section 85-A whether the Civil Court had. jurisdiction or not is an academic issue. Accordingly, we are not going into that question. The learned Counsel or the appellants also contended that the appellants are entitled to the improvements. The High Court did not go into that question as the same was not canvassed and the decree of appellate Court is quite right. We cannot go into that question which is accordingly rejected. The appeal is, accordingly dismissed but in the circumstances without costs." 23. In case of Bachhaj Nahar v. Nilima Mandal & Ors., AIR 2009 SC 1103 apex court has observed as under in para 16 and 17: "16. We cannot go into that question which is accordingly rejected. The appeal is, accordingly dismissed but in the circumstances without costs." 23. In case of Bachhaj Nahar v. Nilima Mandal & Ors., AIR 2009 SC 1103 apex court has observed as under in para 16 and 17: "16. The observation of the High Court that when a plaintiff sets forth the facts and makes a prayer for a particular relief in the suit, he is merely suggesting what the relief should be, and that it is for the court, as a matter of law, to decide upon the relief that should be granted, is not sound. Such an observation may be appropriate with reference to a writ proceeding. It may even be appropriate in a civil suit while proposing to grant as relief, a lesser or smaller version of what is claimed. But the said observation is misconceived if it is meant to hold that a civil court may grant any relief it deems fit, ignoring the prayer. It is fundamental that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. That apart, in civil suits, grant of relief is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief, like res judicata, estoppel, acquiescence, non-joinder of causes of action or parties etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In a suit for recovery of Rupees One lakh, the court cannot grant a decree for Rupees Ten lakhs. In a suit for recovery possession of property ‘A', court cannot grant possession of property ‘B'. In a suit praying for permanent injunction, court grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc. 17. In the absence of a claim by plaintiffs based on an easementary right, the first defendant did not have an opportunity to demonstrate that the plaintiffs had no easementary right. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc. 17. In the absence of a claim by plaintiffs based on an easementary right, the first defendant did not have an opportunity to demonstrate that the plaintiffs had no easementary right. In the absence of pleadings and an opportunity to the first defendant to deny such claim, the High Court could not have converted a suit for title into a suit for enforcement of an easementary right. The first appellate court had recorded a finding of fact that plaintiffs had not made out title. The High Court in second appeal did not disturb the said finding. As no question of law arose for consideration, the High Court ought to have dismissed the second appeal. Even if the High Court felt that a case for easement was made out, at best liberty could have been reserved to the plaintiffs to file a separate suit for easement. But the High court could not, in a second appeal, while rejecting the plea of the plaintiffs that they were owners of the suit property, grant the relief of injunction in regard to an easementary right by assuming that they had an easementary right to use the schedule property as a passage." 24. In case of Hero Vinoth (Minor) v. Seshammal, (2006) 5 SCC 545 apex court has observed in para 12 and 13 as under: "12. We shall first deal with the question relating to jurisdiction of the High Court to interfere with the concurrent findings of fact. Reference was made by learned counsel for the appellant to Chandra Bhan v. Pamma Bai and Anr., 2002 (9) SCC 565; Sakhahari Parwatrao Karahale and Anr. v. Bhimashankar Parwatrao Karahale, 2002 (9) SCC 608 So far as the first decision is concerned, in view of the factual findings recorded by the lower Court and the first Appellate Court it was held that interference with the concurrent findings of fact are not justified. The question related to possession and two Courts primarily considering factual position had decided the question of possession. In that background, this Court observed that jurisdiction under section 100, CPC should not have been exercised. The question related to possession and two Courts primarily considering factual position had decided the question of possession. In that background, this Court observed that jurisdiction under section 100, CPC should not have been exercised. So far as the second decision is concerned, the position was almost similar and it was held that findings contrary to concurrent findings of lower Courts and having no basis either in pleadings, issues framed or in questions actually adjudicated upon by any of the lower Courts cannot be sustained. That decision also does not help the appellant in any manner as the factual scenario is totally different in the present case. 13. Though as rightly contended by learned counsel for the appellant the scope for interference with concurrent findings of fact while exercising jurisdiction under Section 100, CPC is very limited, and re-appreciation of evidence is not permissible where the trial Court and/or the first Appellate Court misdirected themselves in appreciating the question of law or placed the onus on the wrong party certainly there is a scope for interference under Section 100, CPC after formulating a substantial question of law." 25. In view of aforesaid observations made by apex court in various decisions and also considering fact that there was no pleading before trial court made by appellants raising contention that the suit of plaintiff is time barred, this question was not even argued before trial court and lower appellate court and no issue has been framed to that effect by trial court and even no application was given by present appellants for framing any issue to that effect before trial court and then before lower appellate court also, this contention was not raised by present appellants and even in the memo of appeal of present Second Appeal also, appellants have not raised any contention that the suit is time barred, now for first time substantial question of law is framed by this court and yet not argued even before this court by appellants by learned AGP Ms. Vandana Bhatt on behalf of appellants and, therefore, being a mixed question of law and facts, this Court is not allowing appellants now to contend that the suit of plaintiff is time barred. Vandana Bhatt on behalf of appellants and, therefore, being a mixed question of law and facts, this Court is not allowing appellants now to contend that the suit of plaintiff is time barred. Apart from that, as per pleadings of plaintiff that appeal was preferred to DIG, Junagadh dated 27.05.1987 against which no response given by appellant, therefore, cause of action arose on 27.05.1987 continued thereafter, and suit was filed in November, 1988, which averments made in plaint have not been not denied by State in written statement Ex.11 since no contention was raised by defendants before trial court in their written statement Exh. 11 that the suit is time barred, means, they accepted that suit is not time barred by not raising contention to that effect in written statement Ex.11. 26. Therefore, according to my opinion, no substantial error of law has been committed by both courts below while granting relief in favour of plaintiff as prayed in plaint, therefore, contentions raised by learned AGP Ms. Bhatt cannot be accepted. No error is committed either by Courts below while deciding issue and finding given by trial Court as well as reasoning given by lower appellate court cannot consider to be baseless and perverse. The issue which has not been raised from beginning in written statement Ex.11 before trial Court and also not raised before lower appellate court by appellants that suit is time barred, then, first time, such contention which is mixed question of facts and law cannot be permitted to be raised before this Court in second appeal. 27. Accordingly, there is no substance in present second appeal. Therefore, present second appeal is dismissed. No order as to costs. Interim relief, if any, shall stand vacated. Appeal dismissed.