Road Transport Corporation, (Head Quarter), Parivahan Marg, Jaipur v. Dinesh Chand Sharma S/o Hajari Lal Sharma, Ex-Conductor, Rajasthan State Road Tra

Judgment

1. Rajasthan State Road Transport Corporation Limited, Through Managing Director Parivahan Marg, Jaipur.

2. Chief Manager Rajasthan State Road Transport Corporation, Delhi Depot.

3. Executive Director (Traffic), Rajasthan State Road Transport Corporation, (Headquarter) Parivahan Marg, Jaipur, Rajasthan. ----Respondents For Appellant(s)

: Mr. Prateek Mathur For Respondent(s) : Mr. B.L. Gupta [2025:RJ-JP:23110] (2 of 14) [CSA-631/2019] HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 26/05/2025 Order

1. These two SB civil second appeals were preferred aggrieved from common judgment dated 07.08.2018 in civil regular appeal Nos. 1/2014 and 3/2014 passed by learned Additional District Judge No. 2, Jaipur Metro, Jaipur, which were filed against judgment and decree dated 26.11.2013 in civil suit No. 2669/2008 passed by learned Additional Civil Judge (Junior Division) No. 2, Jaipur Metro, Jaipur.

2. In brief the facts of the case are that the plaintiff Dinesh Chand has filed a civil suit before learned Additional Civil Judge, (Junior Division) No. 2, Jaipur Metro, Jaipur for declaration on the ground that a charge-sheet sheet was served by RSRTC for willful absence from 13.02.2007 to 09.03.2007 and without affording any opportunity to properly participate in the enquiry in accordance with principle of natural justice, the employer has passed an order dated 01.07.2008 and terminated the services of plaintiff. The plaintiff raising the issue of violation of principle of natural justice has filed a suit for declaration with consequential relief. The defendants have filed written statement raising objection about accrual of cause of action and jurisdiction of Civil court. The trial court has framed as many as 4 issues. Both the parties have led oral and documentary evidence. Learned trial court has decided issue nos. 1 and 2 collectively. The trial court while deciding issue No. 1 in favour of plaintiff has found that the termination order dated 01.08.2008 is bad in eye of law as there was violation of principle of natural justice. The trial court has [2025:RJ-JP:23110] (3 of 14) [CSA-631/2019] decided issue No. 2 against the plaintiff and given a liberty to the RSRTC employer to conduct enquiry and take decision in accordance with enquiry.

3. The trial court after considering the grounds on issue No. 3 has found that a suit can be instituted before a Civil court. Ultimately the suit of plaintiff Dinesh was partially decreed. Aggrieved from judgment dated 26.11.2013, employer RSRTC has filed a civil regular appeal No. 03/2014 and same was dismissed by the first appellate court. The plaintiff dissatisfied from partial rejection of a suit has filed a civil regular appeal No. 01/2014 and same was decided by a common order dated 07.08 2018. Now both are before this court in two separate second appeals.

4. An appeal is filed by RSRTC with delay of 394 days and to substantiate the delay, an application under Section 5 of Limitation Act is filed and we are considering the application under Section 5 of Limitation Act as well.

5. Learned counsel for RSRTC employer while placing reliance upon grounds of appeal and application has submitted that appellant is a government corporation and the procedure has been prescribed for taking decision at appropriate level. He further submitted that after dismissal of appeal by the appellate court the matter was examined at appropriate level but due to administrative hierarchy in taking decision, some time is taken in filing the appeal. He further submitted that application is filed for condonation of delay and same is bonafide. He further submitted that there are standing orders for adjudication of dispute between workman and the employer and as per these orders the matter falls within jurisdiction of Labour and Industrial Court. He also [2025:RJ-JP:23110] (4 of 14) [CSA-631/2019] submitted that the jurisdiction of Civil court is completely barred in a matter arising under the Industrial Dispute Act. He further submitted that in a dispute between employer and employee, a civil court cannot replace its own wisdom with discretion of employer and this principle is well explained by superior courts. He also submitted that the facts of the case clearly indicated that the respondent has participated in the enquiry and after serving providing opportunity for defence, the enquiry was decided against the plaintiff and the matter required consideration by this Hon'ble court.

6. Learned counsel for respondent plaintiff in CSA No. 511/2018 while placing Reliance upon judgement in case of RSRTC versus Deen Dayal Sharma (appeal no. 3027/2007 judgment dated

05.05.2010) has submitted that in case of violation of principle of natural justice a Civil court has a jurisdiction to entertain a civil suit. He further submitted that now the plaintiff is superannuated and enquiry cannot continue against the plaintiff. He further referred the judgement in case of LIC versus Rampal Singh Bisen (2010) 4 SCC 491, Dev Prakash Tewari Vs. UP Cooperative Institutional Service Board, Lucknow and others (2017) 7 SCC 260 and UCO Bank and ors. Vs. Prabhakar Sadashiv Karvade (2018) 14 SCC 98. He further submitted that no sufficient reason is assigned in support of application under Section 5 of Limitation Act and unless sufficient ground is shown, an application for condonation of delay cannot be allowed. He also submitted that the issue of jurisdiction of Civil court is considered by both the courts below and there is concurrent finding of fact and same cannot be re-agitated in [2025:RJ-JP:23110] (5 of 14) [CSA-631/2019] second appeal. He further submitted that now the plaintiff is before this court for back wages and also against observation of continuation of enquiry by the employer, after superannuation of plaintiff.

7. Heard learned counsel for both the parties and perused the judgments as referred by learned counsel for respondent plaintiff. CMCC No. 2521/2019 in CSA No. 631/2019:

1. Instant second appeal is barred by 394 days and an application under Section 5 of Limitation Act is filed for condonation of delay.

2. The grounds mentioned in application clearly indicated that the counsel engaged to file appeal suffered from viral attack which later converted into typhoid and tuberculosis. Due to long illness, this appeal could not be filed. Thereafter the file was misplaced and it was traced on 15.12.2019 and the appeal is filed. An affidavit of officer in charge Mahesh Tiwari is filed in support of this application but no document has been file to justify the reason mentioned in para number 2 of the application. If a counsel, who is practicing before this court falls ill and illness is converted into typhoid and tuberculosis then he would have undergone treatment by any registered medical practicener but no record is available to justify the reason and even the name of the counsel is not mentioned by the RSRTC. It seriously doubts the bonafides of officer incharge, therefore, the reasons are not sufficient and there is no justification of the ground that due to delay in administrative decision to file appeal, appeal is filed after a delay of 394 days. [2025:RJ-JP:23110] (6 of 14) [CSA-631/2019]

3. In case of Collector, Land Acquisition, Anantnag Vs. Katiji AIR 1987 SC 1353, Hon’ble Supreme Court laid down the following principles to allow application under Section 5 of the Limitation Act:-

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every days delay must be explained" does not mean that a pedantic approach should be made. Why not every hours delay. every seconds delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

4. In case of Balwant Singh (dead) Vs. Jagdish Singh and Ors. 2010 (8) SCC 685, Hon’ble Supreme Court while considering Section 5 of Limitation Act has referred the judgment in the case of Union of India Vs. Ram Charan AIR 1964 SC 215 and observed that the explained delay should be clearly understood in contradistinction to inordinate unexplained delay. [2025:RJ-JP:23110] (7 of 14) [CSA-631/2019] Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation, should be rejected unless sufficient cause is shown for condonation of delay. The larger benches as well as equi- benches of Hon’ble Supreme Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the above stated ingredients; then alone the Court would be inclined to condone the delay.

5. In the case of Brijesh Kumar & Ors. v. State of Haryana & Ors.: (2014) 13 SCC 291, while referring the judgment of Esha Bhattacharjee v. Raghunathpur Nafar Academy & Ors.: (2013) 12 SCC 649, Hon'ble Supreme Court has laid down that sufficient cause is a condition precedent for exercise of discretion by the Court for condonation of delay. The Supreme Court further observed that the Court cannot condone the delay, if it is not properly, satisfactorily and convincingly explained, and a delay cannot be condoned on sympathetic grounds.

6. Very recently condonation of delay under Section 5 of Limitation Act was considered by Hon’ble Supreme Court in case [2025:RJ-JP:23110] (8 of 14) [CSA-631/2019] of P. Subba Reddy (died) by LRs. And Ors. Vs. Special Deputy Collector (LA) 2024 INSC 286 wherein also it was held that unless sufficient cause is shown the application under Section 5 of Limitation Act cannot be allowed. The underlying provisions after harmonious construction of provision of law were formulated in following manner:- (i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself; (ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time; (iii) The provisions of the L imitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally; liberal (iv) In order to advance substantial justice, though justice-oriented approach, approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act; (v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence; (vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal; (vii) Merits of the case are not required to be considered in condoning the delay; and (viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamount to disregarding the statutory provision. [2025:RJ-JP:23110] (9 of 14) [CSA-631/2019]

7. In view of legal position the RSRTC has failed to show sufficient ground for condonation of delay therefore, the application filed under section 5 of Limitation Act is liable to be dismissed. CSA No. 631/2019:-

1. The main objection of appellant is invocation of jurisdiction of Civil court. This issue was considered by a three judge bench of Hon’ble Supreme Court in case of RSRTC and Anr. versus Balmukund 2009 4 SCC 299 and same was relied by Hon’ble Supreme Court in case of RSRTC versus Deen Dayal Sharma (Supra). It clearly indicated that if infringement of the standing orders is alleged then Civil court has no jurisdiction to entertain dispute between employer and employee but when there is allegation of breach of principle of natural justice than a Civil court has a jurisdiction to entertain a civil suit. The Civil court has limited jurisdiction to consider civil suit on this ground of violation of principle of natural justice and not on any other ground.

2. A perusal of judgement of trial court and the appellate court clearly indicated that the both courts below have considered the issue of violation of principle of natural justice and only on this ground issue No.1 was decided in favour of plaintiff therefore there is no perversity in the order passed by the courts below. CSA No. 511/218:-

1. Instant appeal is preferred by plaintiff on limited ground. In case of LIC versus Rampal Singh Bisen (supra) it was held that when an employee having superannuated then it is neither fit nor proper to direct fresh enquiry. Similarly in case of Dev Prakash Tewari Vs. UP Cooperative Institutional Service [2025:RJ-JP:23110] (10 of 14) [CSA-631/2019] Board, Lucknow and others (supra) it was held that no authority is vested to continue disciplinary proceedings after retirement. In case of UCO Bank and ors. Vs. Prabhakar Sadashiv Karvade (supra) it was held that after retirement and enquiry cannot be continued against a person not in employment.

2. Here in this case while allowing suit and passing decree on

26.11.2013, learned trial court has given a liberty to the employer. The plaintiff has challenged order before the appellate court by filing civil regular appeal No. 01/2014 which was disposed on

07.08.2018. After dismissal of this appeal a second appeal is filed by plaintiff, and in the meanwhile, plaintiff has superannuated. Aforesaid indicated that the plaintiff has caused hindrance in continuation of enquiry and now he is before this court praying that after superannuation enquiry cannot be conducted against him. A person cannot sail on two boats. At one point of time this plaintiff dissatisfied from the order has filed an appeal to challenge the order and later during pendency of the appeal if he superannuated then he pleaded that his case fall under the exception therefore enquiry cannot be conducted. Hon’ble Supreme Court in cases has consistently held that since no order of termination or reduction in rank or otherwise cannot be passed after enquiry therefore, an enquiry should not be continued against a person who has already been superannuated few years back. The plaintiff himself is responsible for delay but the order of the trial court clearly indicated that only a liberty is granted and it is not necessary that the enquiry be conducted against him. In order to entertain this appeal, it is necessary that this court has to formulate substantial question of law and after wait for years till [2025:RJ-JP:23110] (11 of 14) [CSA-631/2019] the matter is taken up at hearing stage then only issue will be decided.

3. We are of the view that in case any enquiry is initiated by employer RSRTC then the plaintiff is at liberty to make representation and challenge the order but admitting the appeal on this ground will only burden the system. Thus, the court cannot decide second appeal without following the process as mandatory and the Section 100 of CPC therefore no ground exist for admission of this appeal filed by the plaintiff as there is concurrent finding of fact record by the courts below.

4. Section 100 of CPC provides for second appeal in case wherein the High Court is satisfied that the case involves a substantial question of law. Thus, the First Appellate Court is final court on facts and in second appeal normally cannot re-appreciate the evidence or facts.

5. Just to determine whether a question is substantial question of law or not, was laid down by a Constitution Bench of Hon’ble Supreme Court in case of Chunilal V. Mehta & Sons. Ltd. Vs. Century Spg. and Mgf. Co. Ltd. AIR 1962 SC 1314, as under: "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." [2025:RJ-JP:23110] (12 of 14) [CSA-631/2019]

6. Recently Hon’ble Supreme Court in case of Suresh Lataruji Ramteke versus Sau. Sumabai Pandurang Petkar & Ors. (Civil Appeal No. 6070/2023, arising out of SLP(C)No.20183 of 2022 decided on 21.09.2023) considered the scope of Section 100 of CPC and summarised the law as under:

13. The jurisprudence on Section 100, CPC is rich and varied. Time and again this Court in numerous judgments has laid down, distilled and further clarified the requirements that must necessarily be met in order for a Second Appeal as laid down therein, to be maintainable, and thereafter be adjudicated upon. Considering the fact that numerous cases are filed before this Court which hinge on the application of this provision, we find it necessary to reiterate the principles. 13.1 The requirement, most fundamental under this section is the presence and framing of a “substantial question of law”. In other words, the existence of such a question is sine qua non for exercise of this jurisdiction. 13.2 The jurisdiction under this section has been described by this Court in Gurdev Kaur v. Kaki (2007) 1 SCC 546 (Two-Judge Bench) stating that post 1976 amendment, the scope of Section 100 CPC stands drastically curtailed and narrowed down to be restrictive in nature. The High Court’s jurisdiction of interfering under Section 100 CPC is only in a case where substantial questions of law are involved, also clearly formulated/set out in the memorandum of appeal. It has been observed that: “At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. The effect of the amendment mainly, according to the amended section, was: (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question; (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; [2025:RJ-JP:23110] (13 of 14) [CSA-631/2019] (iv) Another part of the section is that the appeal shall be heard only on that question.” Gurdev Kaur (supra) was referred to and relied upon in Randhir Kaur v. Prithvi Pal Singh & Ors. (2019) 17 SCC 71 13.3 In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 a Bench of three Judges, held as under in regard to what constitutes a substantial question of law:- a) Not previously settled by law of land or a binding precedent. b) Material bearing on the decision of case; and (c) New point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. Therefore, it will depend on facts of each case. Such principles stand followed in Government of Kerala v. Joseph 2023 SCC Online SC 961 and Chandrabhan v. Saraswati 2022 SCC Online SC 1273.

16.5 Interference on findings of fact permitted in exceptional cases, i.e., when finding is based on either inadmissible or, no evidence. This Court in Dinesh Kumar v. Yusuf Ali (2010) 12 SCC 740 referring to various other cases held:- a) It is not permissible for High Court to reappreciate evidence as if it was the first appellate court unless findings were perverse. b) Finding of fact can be interfered in exceptional circumstances as rarity, rather than a regularity. c) Scrutiny of evidence in second appeal is not prohibited but has to be exercised upon proper circumspection.

7. In case of Amar Singh Vs. Dalip Singh (2012) 13 SCC 405, Hon’ble Supreme Court explained the purpose of framing question of law in following manner: “a) The purpose of framing of substantial question of law is to give the parties an opportunity to come prepared on that particular question. b) When a substantial question of law is formulated by the Court then the same must be made known to parties and thereafter they have to be given an opportunity to advanced arguments thereon. c) If any additional questions were framed at the time of hearing, the Court must hear the parties on that question as well.” [2025:RJ-JP:23110] (14 of 14) [CSA-631/2019]

8. Hon’ble Court in case of Chandrabhan Vs. Saraswati 2022 SCC Online (SC) 1273 (decided on 22.09.2022) has summarised principle relating to Section 100 of CPC in following words:- “(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or(iii) the courts have wrongly cast the burden of proof.”

9. In view of discussion made hereinabove application under Section 5 of Limitation Act in CSA No. 631/2019 is hereby dismissed. As a result SB CSA No.631/2019 is dismissed and S.B. CSA No.511/2018 is also dismissed.

10. Miscellaneous application if any also stands disposed of. PREETI VALECHA /120-121 (ASHOK KUMAR JAIN),J