VITHALDAS CHHAGANLAL VAIDYA Vs. JUNAGADH DISTRICT PANCHAYAT

JUDGEMENT

(1.) The decision of the learned Extra Assistant Judge of Junagadh rendered on 7th October 1983 in Regular Civil Appeal No. 115 of 1990 is under challenge in this appeal at the instance of the original plaintiff-appellant under Section 100 of the Code of Civil Procedure, 1908 (the Code' for brief). Thereby the learned Lower Appellate Judge dismissed the present appellant's appeal and affirmed the judgment and the decree passed by the learned Second Joint Civil Judge (J.D.) at Junagadh on 25th August 1980 in Regular Civil Suit No. 878 of 1978. It is needless to state that thereby the learned Trial Judge dismissed the present appellant's suit.

(2.) This litigation has somewhat chequered history behind it. The appellant joined the services of the respondent herein on and from 20th May 1968. He served at various places and lastly he was transferred to the ayurvedic dispensary at Koyli, Taluka Vanthali. It appears that he was not happy with his transfer at that place. He thereupon adopted all possible means (fair and foul) to avoid that transfer or to have him re-transferred from that place. He often proceeded on leave without obtaining prior permission or without giving prior intimation to his superior authority. That resulted in his inviting a penalty of stoppage of five increments without any future effect by one order passed on 17th December 1974 by the District Health authority of Junagadh. A copy of that order is at Exh. 35 on the record of the case. It appears that he continued to indulge in that practice even thereafter. He again went on remaining on leave without prior permission and without giving any prior intimation. Thereupon he was served with one charge sheet on 4th August 1975. Its copy is at Exh. 27 on the record of the case. The document containing the articles of charge is at Exh. 28 on the record of the case. An inquiry officer was appointed to inquire into the charge levelled against the present appellant under the charge-sheet at Exhs. 27 and 28 on the record of the case. On conclusion of the inquiry, the inquiry officer submitted his report to the disciplinary authority. It is annexed to the forwarding letter at Exh. 30 on the record of the case. The inquiry officer found the charge against the appellant to have been duly proved. Thereupon, what is popularly known as the second show-cause notice came to be issued to the appellant calling upon him to show cause why he should not be removed from service. The appellant filed his reply thereto on 15th November 1976. Its copy is at Exh. 31 on the record of the case. The disciplinary authority thereupon, by its order passed on 27th December 1976, imposed the penalty of stoppage of two increments with future effect. A copy of the order of penalty is at Exh. 32 on the record of the case. The aggrieved appellant thereupon carried the matter further in appeal before the appellate authority. It appears that his appeal was not made in the prescribed manner, and as such it was not accepted at that stage. It was not dismissed on merits. This was conveyed to him by the order passed by the appellate authority on13th April 1977. Its copy is produced before this Court in response to the communication served by the learned Advocate calling upon him to produce that letter. It appears that thereupon the appellant preferred another appeal to the appellate authority questioning the correctness of the order of penalty at Exh. 32 on the record of the case. The appellate authority appears to have examined the record and appears to have come to the conclusion that the penalty awarded to the present appellant under the order at Exh. 32 on the record of the case was inadequate. The appellate authority thereupon ordered the proceedings for enhancement of the penalty. A copy of the decision of the appellate authority in that regard is at Exh. 42 on the record of the case. Thereupon the show-cause notice for the purpose came to be issued to the appellant. Its copy is at Exh. 41 on the record of the case. The appellant gave his reply thereto on 7th February 1978. Its copy is at Exh. 43 on the record of the case. It appears that, as required under the relevant provisions contained in the Gujarat Panchayat Service (Discipline and Appeal) Rules, 1984 ('the Rules' for convenience) framed under Section 323 of the Gujarat Panchayats Act, 1961 ('the Act" for brief), the Gujarat Panchayat Seva Selection Board was consulted before passing the order of penalty against the present appellant. The appellate authority, after seeking advice from the Gujarat Panchayats Seva Selection Board, ordered the appellant's removal from service by the order passed on 6th July 1978. Its copy is at Exh. 44 on the record of the case. Aggrieved thereby the present appellant instituted one suit against the respondent herein in the Court of the Civil Judge (S.D.) at Junagadh questioning the correctness of the order at Exh. 44 on the record of the case punishing him with his removal from service. The suit came to be registered as Regular Civil Suit No. 878 of 1976. The respondent herein as the defendant filed its written statement at Exh. 11 on the record of the case and resisted the suit on various grounds. The suit appears to have been assigned to the learned 2nd Joint Civil Judge (J.D.) at Junagadh for trial and disposal. On the pleadings of the parties, the learned Trial Judge framed the necessary issues at Exh. 12 on the record of the case. No oral evidence was led at trial. After recording the documentary evidence and hearing the parties, by his judgment and decree passed on 25th August 1980 in Civil Suit No. 878 of 1978, the learned 2nd Joint Civil Judge (J.D.) at Junagadh dismissed the suit. That aggrieved the present appellant. He carried the matter in appeal before the District Court of Junagadh. His appeal came to be registered as Regular Civil Appeal No. 115 of 1980. It appears to have been assigned to the learned Extra Assistant Judge of Junagadh for hearing and disposal. After hearing the parties, by his decision rendered on 7th October 1993 in Regular Civil Appeal No. 115 of 1980, the learned Extra Assistant Judge of Junagadh dismissed the appeal. The aggrieved appellant has thereupon invoked the further appellate jurisdiction of this Court under Section 100 of the Code for questioning the correctness of the aforesaid decision of the learned Extra Assistant Judge of Junagadh.

(3.) Shri Padiwal for the appellant has urged that the appellate authority had become functus officio after having dismissed the appeal in the first instance preferred by the present appellant against the impugned order of punishment at Exh. 32 on the record of the case. Shri Padiwal for the appellant has urged that the appeal in the second instance made by the appellant for challenging that very order could not have been entertained on that ground. If the appeal in the second instance was imcompetent, runs the submission of Shri Padiwal for the appellant, the appellate authority was not justified in taking action for enhancement of the penalty. Shri Raval for the respondent has on the other hand submitted that the appeal in the first instance against the impugned order at Exh. 32 on the record of the case was not disposed of on merits but was not entertained on account of certain technical defects. The appeal in the second instance preferred by the present appellant against the order at Exh. 32 on the record of the case was found to be in order and it was therefore entertained. In that view of the matter, runs the submission of Shri Raval for the respondent, no fault can be found with the appellate authority in entertaining the appeal in the second instance and to exercise the appellate power of enhancing the penalty on the ground of its inadequacy.