ORAL ORDER
1. Challenge in this Second Appeal is made by the original defendant, to the concurrent findings of both the Courts below. The sole respondent was the plaintiff. Both are referred to in this order, by their original status before the Trial Court. The details of the judgment and decree under challenge is as under.
(i) The Trial Court:- Judgment and decree passed by the 2nd Additional Senior Civil Judge, Porbandar, in Regular Civil Suit No. 569 of 2002 dated 07.01.2009
(ii) The Appellate Court below:- Judgment and decree passed by the Additional District Judge, Porbandar, in Regular Civil Appeal No. 95 of 2009 dated 29.09.2012
2.1 Mr. Mehta for Ms. Mandavia, learned advocate for the appellant has contended that the original defendant had good case on merit and the judgment and decree, which the Trial Court has passed, ought not to have been passed legally. Similar complaint is made against the judgment and decree of the Appellate Court below as well. To consider the submission made on behalf of the appellant, it was first inquired from the appellant as to, it is which evidence which was led by it, which is not considered properly by the Trial Court. To respond to this query of this Court, while the judgment of the Trial Court was being read, it is noticed that, in para-10 of the judgment, the Trial Court has specifically recorded that, inspite of repeated opportunities given, the defendant-the present appellant had neither led any oral nor documentary evidence. The Trial Court has also recorded in para 5 of the judgment that, even written statement was not filed by the defendant-the present appellant, inspite of repeated opportunities, spread over years from 2002 to 2007.
2.2 In above factual background, at the outset, it needs to be recorded that, this Second Appeal is filed by the original sole defendant, who had chosen not to file written statement nor lead any documentary or oral evidence before the Trial Court. What is attempted before this Court, at this stage of Second Appeal is that, legally relief could not have been granted to the plaintiff. Considering the scope of Section 100 of the Code of Civil Procedure, 1908, the original defendant can not be permitted to put his defence for the first time, at this stage, however considering the fact that the appellant is a public body, to satisfy the conscience of this Court, even the record and proceedings is gone into, even in this factual background, and what is found is more startling, the details of which are recorded hereafter, which disentitles the appellant from claiming any relief from this Court, either on the question of law, or even in fact.
3.1 Relevant facts, as emerging from record, are as under.
3.2 The plaintiff had approached the Trial Court against the action of the present appellant of initiating departmental enquiry against him vide charge-sheet dated 25.06.2001, for the alleged irregularity of the year 1982-84.
3.3 The plaintiff was to retire on attaining the age of superannuation on 30.06.2002 He is now about 70 years of age.
3.4 It was the case of the original plaintiff, as pleaded in the plaint (Exh.1), that initiation of the said departmental inquiry was illegal on more than one counts. Firstly, it was after about two decades and was thus delayed inordinately which had also resulted in denial of reasonable opportunity to put his defence at that belated stage. Secondly, it was just in the last year of his retirement, that too when he was due for last promotion before retirement, only with a view to deprive him of promotion. It was contended that thus the very action was lacking bonafide.
3.5 It is recorded that the said inquiry had reached to its logical conclusion, and even according to the Disciplinary Authority also, it was worth only giving a tap on the wrist of the plaintiff, since the office order is passed of giving only censure. It is further recorded that, even that office order giving censure was passed on 26.06.2002, the date on which even the retirement order was passed effective from 30.06.2002
3.6 The specific case of the plaintiff was that, the initiation of departmental inquiry was just to create a circumstance to deprive him of promotion and in the chronology stated above, it got fortified, and in absence of any contest by the defendant against this, the suit came be decreed in favour of the plaintiff.
3.7 It is further recorded that, the plaintiff had given his evidence vide Exh.13, on the lines of pleadings in the plaint, and a two line cross-examination in no way discounted the case of the plaintiff on merits. It is again recorded that, on behalf of the defendant, there was neither written statement nor any evidence of any nature - either documentary or oral.
3.8 It is on this evidence, the suit came to be decreed in favour of the plaintiff, against which the regular civil appeal was preferred.
3.9 Before the Appellate Court below also, in effect only one contention was taken and that was regarding lack of jurisdiction of the Civil Court in service matter. In this regard, firstly it needs to be recorded that, it could not have been permitted at that stage, in absence of any such contention before the Trial Court, but in any case the same was permitted and is gone into by the Appellate Court below, and it is answered against the present appellant. This Court further finds that, not only the Civil Court had jurisdiction, but except the Civil Court no other Court or Forum had jurisdiction to go into the question which was raised in the Civil Suit. The present appellant being a Board, Gujarat Civil Services Tribunal could not have been approached, since, so far the said Tribunal is concerned, the Employees/Officers of the Boards and Corporations of the State of Gujarat are not covered by the provisions of the Gujarat Civil Services Tribunal Act. The Central Administrative Tribunal could also not have been approached, since the appellant is not a Central Government Body. Under these circumstances, the original plaintiff had no option but to approach the Civil Court only. Thus, the only contention raised before the Appellate Court below, though the same was not agitated before the Trial Court, was this, which is rightly rejected by the Appellate Court below.
3.10 Thus, a picture has emerged from record that, before the Trial Court, no contention was taken, before the Appellate Court below, one contention was taken which legally was not required to be gone into, but the appellant being a Public Authority, it was gone into, it is answered against the appellant and there is no error in it. No other contention can be permitted to be taken at this stage. Still discounting the case in favour of the the appellant, this Court has examined it from all angles, including by going through the record and proceedings, and more and more it is gone into, more and more callous approach of the appellant is noticed. The further facts in this regard are as under.
3.11 After the judgment and decree of the Trial Court, the Appellate Court below was moved after the period of limitation. As normally done in case of Public Authorities, delay was condoned and appeal was entertained.
3.12 After the judgment and decree of the Appellate Court below, even this Court was moved, not only after the period of limitation, but only after the execution proceedings were initiated by the original plaintiff.
4. In above factual background, in my view, neither the appellant can be heard, nor is even otherwise entitled to any relief from this Court. It is further recorded that, having gone through the record, this Court finds that, it is not that, what is granted by the Trial Court was either not prayed for, or was not pleaded, or that it is unconceivable in law. True it is, that the appellant Management could have good case on merits, and in the event of any contest having been put forward by it, the result could have been different, but while exercising Appellate jurisdiction under Section 100 of the Code of Civil Procedure, 1908, this Court cannot permit the appellant to build its case from the foundation. There does not exist any basis for non-reading or misreading of evidence on record. On the face of evidence of the plaintiff on one hand, and in total absence of any factual foundation, pleadings or evidence, on behalf of the defendant on the other hand, there cannot exist any question of law which can be gone into by this Court, at the instance of the said defendant. This appeal, therefore, needs to be dismissed.
5. For the reasons recorded above, this appeal is dismissed.