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2016 DIGILAW 1840 (ALL)

Raj Kumar Shukla v. State of U. P.

2016-05-12

PRAMOD KUMAR SRIVASTAVA

body2016
JUDGMENT Pramod Kumar Srivastava, J. 1. Heard learned counsel for the appellant and perused the records. 2. The admitted facts relating to this appeal are that plaintiff-appellant Raj Kumar Shukla was appointed as Lecturer on 23.7.1968 in A.B. Vidyalaya Inter College, Kanpur. He was suspended by order dated 7.4.1988 of Management of Committee of said College and charge-sheet was filed against him by said Committee. Admittedly on 7.5.1988 said Management Committee of the College had issued letter to plaintiff-appellant that in spite of charge-sheet and direction to him to appear before the Committee for the enquiry being conducted against him, he had not appeared. Admittedly by order dated 4.7.1988, plaintiff was dismissed from his services. Then he had filed Writ Petition No. 13428/1988 challenging his termination, which was allowed by the judgment dated 16.3.1999 of the Single Bench of this High Court on the ground that order of termination could not be passed without obtaining approval from the District Inspector of Schools. Against the judgment passed in aforesaid writ petition by Single Bench, Special Appeal No. 298/1999, Committee of Management Vs. Raj Kumar Shukla and others, was preferred, which was heard and allowed by the judgment dated 15.9.1999 of Division Bench of this High Court. By this judgment of special appeal, the judgment of Single Judge was set aside including all consequential orders passed by the Authorities in that regard. Thereafter, plaintiff appellant had preferred Special Leave Petition No. 551-552/2000 before Hon'ble Apex Court, which was heard and dismissed by the judgment dated 10.8.2001 of Apex Court. 3. After dismissal of S.L.P. on 10.8.2001, the plaintiff-appellant waited for almost seven years and then filed Original Suit No. 128/2008, Raj Kumar Shukla and others Vs. State of U.P. and others, with following relief: - "A) That it be declared that voluntary change in terms of the service condition by the Management Policy through the alleged conversion of the institution to a minority institution without giving fair, reasonable proper opportunity dispensing the services of the plaintiff and condemning him unheard in the change service condition is ultra-virus, illegal and void abnitio which whereby do not affect his service condition and the plaintiff be treated as a Lecturer of the institution throughout and be given salary, emoluments, benefits, perks etc. till he attained the age of superannuation and thereafter after superannuation he be given all retirement benefits inclusive of gratuity, provident fund, group insurance & pension etc. due to breach of Service conditions committed by the defendants. B) That the cost of suit be awarded. C) That any other relief which the Hon'ble Court be deemed fit and proper be granted in favour of the plaintiff." 4. The original suit proceeded ex-parte against the defendants. After accepting evidence and affording opportunity of hearing to plaintiff-appellant, the Court of Additional Civil Judge, Senior Division(/ACMM), Court No. 4, Kanpur Nagar had dismissed the suit by its judgment dated 17.1.2014 with finding that plaintiff had failed to prove his case, his evidences were inadmissible as based on photostat copies, he had also failed to prove that Management Committee of defendant institution had passed order of his dismissal without affording opportunity of hearing to him, and has failed to prove that order of his dismissal was erroneous or illegal. 5. Against the judgment of trial court, plaintiff-appellant had preferred Civil Appeal No. 41/2014, Raj Kumar Shukla vs. State of U.P. and others. This appeal was heard and dismissed by the judgment dated 4.1.2016 of Additional District Judge, Court No.-10, Kanpur Nagar. In this judgment, after appreciating circumstances of the case and evidences adduced by the parties, the first appellate court had held that plaintiff had failed to prove that any illegality or error was committed in passing of order of his termination from service. First appellate court had confirmed the judgment dated 17.1.2014 of trial court and dismissed the appeal. 6. Against the judgment of trial court as well as first appellate court, present second appeal has been preferred by the plaintiff of the original suit. 7. Learned counsel for the appellant contended that initially respondent-defendant institution was minority institution and its status was erroneously changed by defendants, who have passed impugned order of termination of service of plaintiff. He further contended that plaintiff-appellant was not afforded opportunity of hearing and ex-parte enquiry report was submitted against him and on the basis of said report, he was wrongly terminated. But these facts were not properly appreciated by trial court, including the fact that prior approval for termination was necessary from DIOS. Therefore, appeal should be admitted for being allowed. 8. But these facts were not properly appreciated by trial court, including the fact that prior approval for termination was necessary from DIOS. Therefore, appeal should be admitted for being allowed. 8. A few points and dates are pertinent to mention here: - (a) Services of plaintiff were terminated on 4.7.1988. (b) Challenging his termination, plaintiff filed Writ Petition No. 13428/1988, which was allowed on 16.3.1999 by Single Bench. (c) Against the judgment dated 16.3.1999, Special Appeal No. 298/1999 was preferred by respondent, which was allowed by the judgment dated 15.9.1999, by which judgment of Single Bench was set aside and original writ petition was dismissed. (d) Against the judgment of Division Bench passed in special appeal on 15.9.1999, the S.L.P. No. 551-552/2000 was preferred by the appellant, which was dismissed by the order dated 10.8.2001 of Hon'ble Apex Court. (e) Plaintiff had filed Original Suit No. 128/2008 on 17.1.2008, which was dismissed on 17.1.2014. (f) In Original Suit No. 128/2008 cause of action is mentioned in paragraph 30 of plaint, which is quoted below: - "That the cause of the action accrued to the plaintiff on account of conversion of the institution into minority institution without giving proper reasonable opportunity. The cause of action accrued as the defendant No. 2 suo-motto without taking plaintiff in confidence as well as without giving a proper right of say to the plaintiff wrongly changed the service rule criteria, wherefore the cause of action further accrued as the plaintiff's services got dispensed under new service rules and regulations which got imposed upon the plaintiff and as such the act of defendant amount to coercive dispensation of service which is highly unlawful and illegal and as such the cause of action subsisting as a notice dated 10.10.2007 which got served by the plaintiff through counsel has gone unheeded." 9. Against the judgment of trial court, Civil Appeal No. 41/2014 was preferred, which was dismissed on 4.1.2016, against which present second appeal is pending. 10. From the description of above mentioned facts, dates and events, it is clear that cause of action for the original suit arose to plaintiff-appellant on 4.7.1988, but he had instituted original suit on 17.1.2008, that is approximately after 20 years of arising of cause of action. The legal position is explicitly clear, and the plaintiff-appellant is expected to know it. From the description of above mentioned facts, dates and events, it is clear that cause of action for the original suit arose to plaintiff-appellant on 4.7.1988, but he had instituted original suit on 17.1.2008, that is approximately after 20 years of arising of cause of action. The legal position is explicitly clear, and the plaintiff-appellant is expected to know it. He had deliberately not moved the trial court for filing original suit for the relief claimed for about 20 years. Thus, apparently claim of plaintiff-appellant through original suit is barred by time and on this count alone, suit is liable to be dismissed. 11. If it is accepted for the sake of argument that after termination from service on 4.7.1988, plaintiff-appellant had been genuinely believing the High Court to be the competent court for the relief claimed and had been seeking redressal of his grievances there in writ petition, special appeal and SLP before Apex Court, and that time should be excluded giving him the benefit of Section 14 of Limitation Act, then such period runs from year 1988 to 10.8.2001, when special leave petition by Hon'ble Supreme Court was dismissed. Even in this order of dismissal of SLP, the Apex Court had made it clear that neither the order of High Court nor any other order will come in way of petitioner pursuing any other remedy that may be permissible under law. Remedy is permissible under law, which also includes law of limitation as enumerated in Indian Limitation Act. But after dismissal of SLP in year 2001, plaintiff-appellant had not initiated any legal proceeding for seeking above mentioned relief for about seven years till year 2008 when he filed original suit. There is no explanation at all for delay in filing original suit for these about seven years. Although, it is mentioned in paragraph relating to cause of action of the suit that firstly cause of action arose when services was terminated (i. e. on 4.7.1988) and on 10.10.2007 when he served notice to defendant-respondents; but period of limitation cannot be extended by serving any notice on defendants. Thus, if the plaintiff-appellant is granted the relief under Section 14 of Limitation Act, even after that his suit is grossly time barred, because no acceptable reason for condonation for the delay was given or explained. On this count alone, plaintiff's suit was liable to be dismissed. 12. Thus, if the plaintiff-appellant is granted the relief under Section 14 of Limitation Act, even after that his suit is grossly time barred, because no acceptable reason for condonation for the delay was given or explained. On this count alone, plaintiff's suit was liable to be dismissed. 12. So far the merits of the case relating to this appeal is concerned, the trial court had appreciated the evidences adduced by the plaintiff-appellant and scrutinized them before giving finding that plaintiff had totally failed to prove its case. The documentary evidences adduced by him were not original documents and were photostat copies, which were legally inadmissible in evidence. Such finding is legally not incorrect. In original suit, evidence has to be appreciated in light of provisions of Indian Evidence Act. When primary evidence is suppressed without any sufficient reason and secondary evidence is inadmissible, then such evidence should not be believed, as done by the trial court in present matter. Trial court had held that neither plaintiff had given admissible documentary evidences nor had given oral evidence to prove his case and failed to prove his case including fact that order of his termination was erroneous. Such finding of trial court in light of the evidences adduced by plaintiff-appellant are not erroneous or infirm. 13. First appellate court had also independently appreciated the findings given by trial court and found that there is no error in judgment by learned Civil Judge whose findings are correct and acceptable. First appellate court had also given finding that from the evidences adduced before the Court, plaintiff-appellant had failed to prove that his order of termination was erroneous or illegal. Thus, there has been concurrent and acceptable finding of facts given by the two courts below, which are apparently correct and acceptable. 14. One more argument raised by learned counsel for the appellant was that order of termination of plaintiff-appellant must have been endorsed and confirmed by District Inspector of Schools. This point was raised by appellant in his above mentioned writ petition; and in its judgment, the Division Bench of this Court in Special Appeal had decided that no such formality is needed; and that order has been confirmed by Hon'ble Apex Court. Therefore, this contention is also unacceptable. 15. This point was raised by appellant in his above mentioned writ petition; and in its judgment, the Division Bench of this Court in Special Appeal had decided that no such formality is needed; and that order has been confirmed by Hon'ble Apex Court. Therefore, this contention is also unacceptable. 15. The only point to be considered in this matter was as to whether plaintiff has failed to prove that his termination was erroneous because of non-affording opportunity of hearing in departmental enquiry. This was not a question of law, but was a question of fact that can be decided on the basis of evidences, as has been done by the courts below with specific and concurrent finding that plaintiff had failed to prove its case. As discussed above, such findings of lower courts are apparently not infirm or perverse. 16. On examination of the reasonings recorded by the trial court, which are affirmed by the first appellate court in first appeal, I am of the view that the judgments of the trial court as well as the first appellate court are well reasoned and are based upon proper appreciation of the entire evidences available on record. No question of law much less a substantial question of law is involved in this case before this Court. No perversity or infirmity is found in the concurrent findings of fact recorded by the trial court that has been affirmed by the first appellate court to warrant interference in this appeal. None of the contentions of the learned counsel for the appellant-plaintiffs can be sustained. 17. In view of the above, this appeal is dismissed.