- (1.) THIS is plaintiff's second appeal directed against judgment of the learned Additional District Judge No.5, Jaipur City, Jaipur, dated 10.02.1999 in Civil Regular Appeal No.93/1998, who thereby dismissed the appeal and confirmed the judgment and decree passed by learned Additional Munsiff Magistrate No.2, Jaipur City, Jaipur, in Civil Suit No.1327/1988, who dismissed the suit of the plaintiff. Factual matrix of the case is that plaintiff -appellant was appointed on permanent post of Conductor with the respondent Rajasthan State Road Transport Corporation, on regular basis. A charge -sheet was served upon the plaintiff, on the basis of which, he was dismissed from service. According to plaintiff -appellant, the order removing him from service was passed without compliance of the principles of natural justice inasmuch as he was not supplied copies of relevant documents during the course of disciplinary enquiry. Statements of witnesses were also not recorded in his presence. He was not given opportunity to cross -examine the witnesses nor was he given opportunity to lead his evidence. The enquiry was conducted on a single day. On completion of the enquiry, copy of the report was also not supplied to the plaintiff. He was also not heard on the quantum of punishment. The plaintiff was removed from service on 07.06.1979. Severe punishment of removal was awarded to him without following the provisions contained in the Standing Order. The plaintiff filed departmental appeal against the order of removal. The appellate authority, vide order dated 25.02.1982, without giving him any opportunity of hearing, dismissed the appeal. The appellant authority did not provide the copy of order dismissing the departmental appeal. The plaintiff thereupon filed review petition before the respondent no.4 - the Chairman, Rajasthan State Road Transport Corporation, Jaipur, which was also dismissed by the respondent no.4 vide order dated 10.10.1985.
(2.) IN the written statement, the defendant -respondents denied the fact that the plaintiff was appointed on the post of Conductor on regular basis. It was pleaded that the departmental enquiry was conducted in accordance with the provisions of law and plaintiff was given opportunity to adduce his evidence and cross -examine the witnesses and also to produce his evidence. Copy of the enquiry -report was also made available to the plaintiff. A notice was given to the plaintiff on the quantum of punishment. The Civil court has no jurisdiction to entertain the suit. This court admitted this appeal on 26.07.1999 on the question ''whether the appellate court, during the hearing of the appeal, can formulate a new question of law without there being an application to that effect by either of them? '' It may, at the out -set, be noted that while formulation of a question of law is a sine qua non for maintainability of second appeal, but at the same time it is also equally well settled that if a second appeal is admitted on substantial question of law, the High Court, while hearing it finally, can reframe substantial question of law or frame substantial question of law afresh or even hold that no substantial question of law is involved but reversal of the judgment and decree passed in appeal by a court subordinate to it in exercise of jurisdiction under Section 100 of the Code, is impermissible without formulating a substantial question of law. Reference in this connection may be made to the following observation of the Supreme Court in Umerkhan Vs. Bismillabi - (2011) 9 SCC 684: - 11. In our view, the very jurisdiction of the High Court in hearing a second appeal is founded on the formulation of a substantial question of law. The judgment of the High Court is rendered patently illegal, if a second appeal is heard and judgment and decree appealed against is reversed without formulating a substantial question of law. The second appellate jurisdiction of the High Court under Section 100 is not akin to the appellate jurisdiction under Section 96 of the Code; it is restricted to such substantial question or questions of law that may arise from the judgment and decree appealed against. As a matter of law, a second appeal is entertainable by the High Court only upon its satisfaction that a substantial question of law is involved in the matter and its formulation thereof. Section 100 of the Code provides that the second appeal shall be heard on the question so formulated. It is, however, open to the High Court to reframe substantial question of law or frame substantial question of law afresh or hold that no substantial question of law is involved at the time of hearing the second appeal but reversal of the judgment and decree passed in appeal by a court subordinate to it in exercise of jurisdiction under Section 100 of the Code is impermissible without formulating substantial question of law and a decision on such question. '' Upon hearing learned counsel for the parties and keeping in view the law enunciated by the Supreme Court in Umerkhan, supra, we are of the view that the question of law, referred to above, requires to be reformulated and the question of law that actually involved in the present matter is drawn as under: - What would be the starting point for counting limitation to assail the order of removal and whether the suit seeking declaration regarding illegality of removal can be filed within three years from the date of dismissal of review petition, upholding the order of the appellate authority affirming such order of removal?
(3.) SHRI Babu Lal Gupta, learned counsel for the plaintiff -appellant, has argued that learned first appellate court has committed a serious error of law in deciding the Question No.3, newly formulated by it, against the plaintiff -appellant, which was to the effect - whether the suit was not filed within the period of limitation? Burden of proof of that issue was on the defendant -respondents, which they failed to discharge. The defendant -respondents failed to refute the evidence led by the plaintiff -appellant. The learned first appellate court has erred in law in holding that the suit was not filed within the period of limitation. It was argued that the court below has failed to truly appreciate the documentary evidence produced by the plaintiff in its correct perspective. The plaintiff -appellant stated on oath that the review petition was filed before the respondent no.4; the Chairman of the respondent Corporation through post, which was dismissed by order dated 10.10.1985. It was argued that both the courts below have dismissed the suit of the plaintiff -appellant on surmises and conjectures. The plaintiff -appellant moved an application on 28.09.1991 for producing the documents under Order 11 Rule 12 of the Code of Civil Procedure, which was allowed on 07.12.1991. The plaintiff -appellant moved another application on 06.02.1992 under Order 11 Rule 21 of the CPC for striking out defence of the defendants and that application was allowed on 12.10.1992 striking out defence of the defendants. It was argued that the departmental appeal of the plaintiff was dismissed on 25.02.1982 and the review petition was dismissed on 10.10.1985. Therefore, the suit could be filed within three years and the period of three years should be counted from the date of rejection of the review petition on 10.10.1985. Shri Babu Lal Gupta, learned counsel for plaintiff -appellant, has cited judgment of this court dated in S.B. Civil Second Appeal No.447/1998, titled RSRTC and Others Vs. Ghanshyam Murari, decided on 12.11.2002. He also relied on the judgment of this court in S.B. Civil Second Appeal No.286/1997 - Khadarmal Vs. The Rajasthan State Road Transport Corporation and Others, dated 24.09.2002. Learned counsel has placed reliance on the judgment of this court in S.B. Civil Second Appeal No.245/1996 - Ram Ratan Sharma Vs. R.S.R.T.C. and Others, dated 01.03.1997 and argued that this court decided batch of three appeals in that case. In that case, it has been held that the power of review under clause (b) of the Schedule, has been conferred on the Chairman of the respondent Corporation against the order passed by the appellate authority under the specific Circular dated 02.08.1978, and the provisions of Order 35(e)(vii) of the Rajasthan State Road Transport Workers and Workshop Employees Standing Orders, 1965 would not bar review. In that case also the suit was dismissed by the court below on the ground of limitation. This court in the aforesaid judgment has held that the limitation of filing the suit will start from the date when the review application was disposed of and therefore the suit was held to have been filed within limitation. It was argued that in the present case also the plaintiff filed the suit within three years from the date of rejection of the review petition on 26.12.1985 and therefore if the suit filed on 30.08.1988, it should be held to have been filed within time. Finding on the question of limitation as recorded by the first appellate court, is erroneous. It is argued that as far as merit of the case is concerned, the first appellate court on question no.2 formulated by it, held that Clause 35(e) of the Standing Orders was violated and that the appellant was not provided opportunity of hearing prior to passing order of removal. It held that the department also failed to provide relevant and crucial documents to the appellant before passing of the order of penalty. It was also held that the appellant was not heard on the question of penalty. It was therefore argued that once the suit is held to have been filed within the period of limitation, the suit deserves to be decreed in favour of the plaintiff -appellant with all the consequential benefits.;