- (1.) THE plaintiff-appellant has challenged the order dated 20. 12. 2000 passed by the Additional District Judge No. 4, Kota whereby the learned Judge has accepted the appeal, set aside the judgment and decree dated 22. 5. 1996 passed by the Additional Civil Judge (Junior Division) No. 1, (North), Kota and has remanded the case back for decision in the suit afresh.
(2.) THE brief facts of the case are that the plaintiff-appellant was working as Lower Division Clerk (henceforth to be referred to as `the L. D. C. ', for short) in Drainage Division-II, (LDC), Chambal Command, Bundi. THE appellant was on leave from 19. 11. 1974 and the Department duly accepted the said leave. On 19. 3. 1975 the appellant received an order signed by Shri Sadhu Ram, Executive Engineer whereby the appellant was suspended on the ground that a criminal offence has been registered against the appellant and is under investigation. Vide order dated 5. 7. 1975, the charge-sheet was issued to the appellant by Shri Sadhu Ram wherein four charges were levelled against him. Firstly, willful absence from the duty; secondly, misbehaviour and in subordination; thirdly, mishandling of Shri Shamsher Singh, Superintending Engineer and fourthly, attempt to murder Shri Shamsher Singh, Superintending Engineer. According to the charge-sheet dated 18. 3. 1975, Shri Shamsher Singh had lodged the report at Police Station Bheemganj Mandi against the appellant and his brother regarding an incident, which allegedly took place on 17. 3. 1975. THE police registered a case for offence under Section 307, 336 and 448 IPC. After the investigation, the police also submitted a charge-sheet. However, after the trial, vide judgment dated 25. 11. 1975, the appellant was acquitted. THE State had filed an appeal against the acquittal order. However, the appellate Court also dismissed the appeal. Meanwhile, the appellant replied to the charge-sheet. However, the inquiry could not be started. THErefore, Shri Shamsher Singh issued various letters appointing different inquiry officers. Ultimately, Shri Shamsher Singh, the person allegedly assaulted by the appellant appointed Shri Sadhu Ram as the inquiry officer vide his order dated 22. 12. 1975. Interestingly, Shri Singh himself was to be a witness in the departmental inquiry as charge Nos. 3 and 4 related to him. After completion of the inquiry, Shri Sadhu Ram submitted his inquiry report to Shri Shamsher Singh. Shri Shamsher Singh gave a notice to the appellant before inflicting the proposed punishment enclosing therewith the copy of the inquiry report. THE appellant replied to the said notice on 6. 8. 1976. He also raised the preliminary objection that the Superintending Engineer, Shri Shamsher Singh, could not be the disciplinary authority as he was interested in the case himself. Notwithstanding this objection, vide order dated 27. 9. 1976, Shri Shamsher Singh dismissed the appellant from the service. Since the appellant was aggrieved by the dismissal order, he filed a departmental appeal before the Appellate Authority. Vide order dated 7. 10. 1978, the Appellate Authority partly allowed the appeal and converted the order of dismissal into an order of termination. The appellant filed a civil suit for declaration wherein he challenged the entire departmental inquiry on the ground of bias and on the ground of malafide intention of the inquiry officer and the disciplinary authority. In the suit, the appellant sought the setting aside of the orders dated 27. 9. 1976 and 7. 10. 1978. He further sought reinstatement in the service with backwages and all consequential benefits and difference of salary of suspension period. The respondent-defendant filed their written statement wherein they denied the averments made in the plaint. The learned trial Court framed four issues. After hearing both the parties, the trial Court decided the issue No. 1 in favour of the plaintiff-appellant and held that the inquiry officer did not hold an inquiry in a fair manner. Likewise, issues No. 2, 3 and 4 were also decided in favour of the plaintiff-appellant. Hence, vide judgment dated 22. 5. 1996, the trial Court passed a decree in favour of the appellant and set aside the order dated 27. 9. 1976 and the order dated 7. 10. 1978. It further decreed the reinstatement of the appellant with all consequential benefits and difference of suspension allowance. The defendant-respondent preferred a first appeal. The appellate Court came to the conclusion that the trial Court has not framed two issues: whether there was any violation of principles of natural justice or not? And whether due opportunity of hearing was given to the appellant or not? While setting aside the finding on issues No. 1, vide judgment dated 20. 12. 2000, the appellate Court remanded the case back to the trial Court for re-deciding the case. Since the appellant is aggrieved by the remand of the case, he has filed this appeal before this Court. Mr. Tripurari Sharma, the learned counsel for the appellant, has argued that the ample powers have been given to the appellate Court under Section 107 of the Civil Procedure Code (henceforth to be referred to as `the Code', for short) and under Order 41 Rules 24 and 25 of the Code for the appellate Court to re-settle the issues, to take the additional evidence and to decide the case itself. Hence, the appellant Court should not have remanded the case back, but in fact should have decided the case itself. Moreover, the appellant is facing a departmental inquiry since 1975, has been involved in a civil litigation since 1989 and is now, after a lapse of twenty five years, he has been directed to again go back to the trial Court by the learned appellate Court. Thus, even after a lapse of thirty one years as of today, the appellant is seeking justice. Furthermore, the violation of the principles of natural justice was writ large in the instant case. There was sufficient evidence on the face of the record to prove the violation of principles of natural justice. Thus, the appellant Court could have decided this issue at the appellate stage. Likewise, there was sufficient evidence for the decision of the second issue framed by the appellate Court. Hence, there was no need to send the case back to the trial Court. But without appreciating the facts, which were so obvious on the face of record, in a routine and mechanical manner, the case has been remanded for further trial. Therefore, according to the learned counsel, the judgment dated 20. 12. 2000 deserves to be quashed and set aside. On the other hand, Mr. S. N. Gupta, Deputy Government Advocate, the learned counsel for the State, has argued that the power to remand a case back to the trial Court is a discretionary power. Since the trial Court had not framed the issue of violation of the principles of natural justice, it was imperative that the case be sent back to the trial Court for a fresh decision. Hence, he has supported the impugned judgment. We have heard both the learned counsels for the parties and have perused the impugned judgment.
(3.) THE power to remand a case is contained in Section 107 of the Code as well in Order 41 Rules 23 to 26-A of the Code. THE power to record additional evidence at the appellate stage is contained in Order 41 Rules 27, 28 and 29 of the Code. THEse powers are quoted below. Section 107 of the Code deals with the powers of the Appellate Court as under: 107. Powers of appellate Court- (1) Subject to such conditions and limitations as may be prescribed, as appellate Court shall have power- (a) to determine case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the appellate Court shall have the same powers and shall perform as nearly as may be same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. A holistic reading of these provisions clearly reveals that under Section 107 of the Code, the appellate Court has the power to frame issues, to take additional evidence and to determine the case finally. Moreover, according to Section 107 (2) of the Code, the appellant Court has the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code in Courts of original jurisdiction. Thus, according to Section 107 of the Code, it is not necessary for the appellate Court to automatically remand a case back to the trial Court. Sufficient powers have been bestowed on the appellate Court to re-frame the issues, to take additional evidence and to determine the case finally. Order 41, Rules 23 to 29 of the Code elaborate the powers contained in Section 107 of the Code. ;