RASTOGI, J. - (1.) IT is defendants' special appeal filed against order of learned Single Judge, dt. 04. 03. 97 dismissing Civil First Appeal No. 95/91 and affirming judgment & decree dt. 22. 12. 90 passed by Additional District Judge Dholpur in Civil Suit No. 18/83 (28/79 ).
(2.) FACTS, in brief, relevant for examining controversy, are that respondent (plaintiff) was appointed after his regular selection on the post of Constable in Rajasthan Police vide order dt. 07. 08. 74 on two years' probation, but because of unsatisfactory service during probation, his services were terminated vide order dt. 25. 06. 76 which is reproduced as under:- " Constable Laxminarayan No. 87-A. P. , was appointed vide this office D. O. E. No. 466 dated 07. 08. 74 on two years probation. During this period, his work was found unsatisfactory. He is habitual absentee and his general reputation has been reported to be very bad. He has also not undergone recruits training as yet. Const. Laxminarayan No. 87 A/p is discharged from service with immediate effect. His absence period may be counted as F. O. L. Sd/- Dy. Supdt. of Police, Bharatpur" After termination of his service vide order dt. 25. 06. 76, respondent employee served legal notice U/s 80 CPC on 22. 03. 79 and thereafter instituted civil suit under O. 7, RI, CPC, against order of his termination before the Court of District Judge Bharatpur on 02. 07. 79. Written statement was filed on behalf of defendants (appellants) and on the basis of pleadings, in all 11 issues were framed including crucial issues viz.- (a) Whether civil suit filed by plaintiff employee on 02. 07. 79 against the order dt. 25. 06. 76 was barred in view of Rajasthan Civil Services (Service Matters Appellate Tribunals) Act, 1976 ("1976 Act") ? And (b) Whether order of termination dt. 25. 06. 76 is stigmatic, and has been passed by way of penalty without holding any inquiry & in non-compliance of principles of natural justice ? Learned trial Judge on both the issues held that since order of termination was passed on 25. 06. 76 and the 1976 Act has come into force from 01. 07. 76, as such S. 10 of 1976 Act which bars filing of civil suit in service matters would not have come into way of plaintiff, and suit was held to be maintainable and it was further held that order of termination dt. 25. 06. 76 cannot be said to be termination simpliciter which is stigmatic passed as a measure of penalty without holding any disciplinary inquiry, therefore, plaintiff's suit was decreed by learned Additional District Judge, Dholpur, vide judgment & decree dt. 22. 12. 90, against which appellant defendant preferred first appeal before learned Single Judge who has also dismissed the first appeal summarily on the ground that provisions of 1976 Act particularly S. 10 whereof which bars entertaining service matter by civil court will not be attracted in view of the fact that services of plaintiff were terminated prior to coming into force of 1976 Act and has not found any illegality in the findings recorded by Trial Court with regard to order of termination. Hence this special appeal. Shri J. K. Agrawal, Additional Govt. Advocate for the State (appellants) has urged that being a regular first appeal filed by appellant, learned Single Judge was under obligation to examine all issues so as to consider & re-appreciate all material on record, examined by learned Trial Court, which learned the Single Judge failed to do so, in such circumstances, without going into merits of this special appeal, the matter deserves to be remanded back for consideration of first appeal afresh after taking note of all submissions made for examining order of termination dt. 25. 06. 76. Shri Agrawal has further urged that both, learned Single Judge and trial Judge have committed serious error of law in arriving at the conclusion that the 1976 Act would not be applicable for the reason that order of termination was passed a few days before its commencement. According to him, the suit was filed by respondent plaintiff on 02. 07. 79, indisputably the Act of 1976 has come into force and S. 10 of the Act bars the jurisdiction of civil court in respect of service matters referred to in S. 2 (f) of Act. In this view of matter, according to Shri Agrawal, very finding recorded by Trial Court as well as by learned Single Judge are not legally sustainable and deserves to be set aside.
(3.) SHRI Agrawal has also urged that finding recorded with regard to order of termination to be stigmatic, for which inquiry was required to be initiated, is totally perverse. According to him order of termination has been passed in due compliance of R. 36 of Rajasthan Police Subordinate Service Rules, 1974, and it cannot be said to be stigmatic order, and being a probationer, no right was otherwise conferred to hold the post, thus appellant was not under obligation to hold any disciplinary inquiry; in such circumstances, finding recorded in this regard by learned Trial Court affirmed by learned Single Judge without examining evidence on record is not legally sustainable. In support of his contentions, Shri Agrawal has relied upon decisions of Apex Court in State of Punjab vs. Sukhwinder Singh (2005 AIR SCW 3477), Municipal Committee, Sirs vs. Munshiram (2005 AIR SCW 762), State of Punjab vs. Balbir Singh (AIR 2004 SC 4655) and Registrar High Court of Gujarat vs. CG Sharma (2004 AIR SCW 6687) and so also on some other decisions on the same point and submitted that termination was simpliciter and plaintiff being on probation, no right was conferred on him and the fact that his performance was found to be unsatisfactory and he was considered to be unfit to be retained in service, and as held by the Apex Court (supra) departmental inquiry was not required to be initiated and the order of termination has been passed in accordance with law. Per Contra, Shri R. S. Rathore, Counsel for respondent plaintiff has urged that learned Single Judge & trial Judge after going through material on record has categorically recorded a finding of fact that bar as provided U/s 10 of 1976 Act would not have come in way of plaintiff as the order impugned by him was passed before the 1976 Act came into force and as such finding recorded (supra) does not require any interference by this Court. ;