A. P. THAKER, J.

1. The present Second Appeal is filed under Section 100 of the Code of Civil Procedure by the original defendant against the judgment and decree dated 12.01.2011 passed by the learned Additional District Judge and Presiding Officer, Fast Track Court Porbandar in Regular Civil Appeal No.32 of 1982 , whereby the First Appellate Court has confirmed the judgment and decree passed by the learned Principal Senior Civil Judge, Porbandar in Regular Civil Suit No.17 of 2008.

2. The appellant is the original defendant and respondent is the original plaintiff before the Trial Court. For the brevity and convenience, the parties are referred to in this judgment as per the character assigned to them before the Trial Court, i.e. plaintiff and defendant.

3. The brief facts giving rise to the suit of the plaintiff is that; the plaintiff was working as an Octroi Clerk since the year 1962 as permanent employee in the defendant’s department. It is contended that the defendants have issued suspension order on 06.08.1981 and has also issued show cause notice. It is alleged by the plaintiff that before issuance of suspension order, prior show cause notice needs to be issued to him. It is contended by the plaintiff that the defendants have not provided him an opportunity of being heard and with malafide intention they have issued suspension order and show cause notice on the same day and also served it on the same day at 03.30 p.m.

3.1. It is contended by the plaintiff that the reasons shown in the suspension orders are baseless and no any memo bearing no.72 dated 13.07.1981 was served upon him. The plaintiff has alleged that he never remained absent from his duty from 24.06.1981 to 26.06.1981. He has also contained that he is a kidney patient and he was on leave from 04.08.1981 to 07.08.1981 and for that purpose, he has also produced medical certificate of Doctor Bhatt along with his leave application and leave was granted to him. It is contended by the plaintiff that due to his illness he went outside Porbandar and on 17.08.1981 the order no. MUNI.JA.1154 was affixed on the conspicuous part of his residence and thereafter the defendants have also affixed the notice no.MUNI.1330 dated 05.09.1981 relating to inquiry. It is alleged that when he returned back after taking the treatment, he came to know about the said order. He has also contended that he has not sold any land of the municipality to Maiya Raiya and Bhikhu Hira and recovered Rs.1,050/-. He has also contended that earlier he had filed Regular Civil Suit NO.530 of 69 against the defendant wherein the judgment was passed in his favour. By filing the present suit, the plaintiff has prayed for declaration and permanent injunction to declare that the order dated 06.08.1981 as passed by the defendant of his suspension is unconstitutional and to restrain the defendant from dismissing him from the service.

4. The defendant has filed a written statement at exhibit 44 and has contended that suspension order has been cancelled and inquiry is ordered to be continued. It is also contended that the departmental inquiry is for the misbehaviour and misconduct of the plaintiff and during that departmental inquiry he was ordered to be suspended. It is contended that the plaintiff was informed to resume the duty and to work under the guidance and supervision of the Chief Officer, but the plaintiff did not complied with the said notice and remained absent. It is also contended that the plaintiff had to remain present on his duty on 09.02.1982, but he did not take care to remain present and thus has violated the order and therefore on 03.03.1982, the order was passed against the plaintiff as he remained absent without leave. It is also contended that yet the plaintiff did not joined his service. It is also contended that therefore the plaintiff is not entitled to get any relief as prayed for in the plaint. The defendants also contended that the suit itself is premature as no action is taken against him. The defendants have also raised the issue that the Civil Court has no jurisdiction to decide the suit. It has prayed to dismiss the suit.

5. On basis of the pleadings of the parties, the Trial Court has framed the issues at Exhibit 45 as under:-

“1. Whether plaintiff proves that the suit suspension order is illegal, improper, unjust, unconstitutional, against the principles of natural justice and ultravires

2. Is the suit premature

3. Whether the Civil Court has jurisdiction to try and entertain the present suit

4. Whether the plaintiff is entitled to all or any of the reliefs claimed

5. What order and decree "

6. On the basis of evidence on record and after hearing both the sides, the learned Trial Court has decided the issue nos.1 and 3 in affirmative, issue no.2 in negative and has ultimately decreed the suit in favour of the plaintiff.

7. Being aggrieved and dissatisfied with the aforesaid judgment and decree of the learned Trial Court, the defendant has preferred Regular Civil Appeal before the District Court, Porbandar which was registered as Regular Civil Appeal No.17 of 2008 and the same came to be heard by Additional District Judge, Porbandar. The First Appellate Court has framed the following issues for determination of the appeal in para 4 of the judgment:-

“1) Whether appellants prove that the Judgment and decree passed by the learned Principal Senior Civil Judge, Porbandar in R.C.S. No.17/2008 dated 25-3-2004 is illegal and requires to be set aside

2) What order and decree”

8. On the basis of the submissions made on behalf of both the sides, the First Appellate Court has answered the point no.1 in negative and has ultimately dismissed the appeal filed by the defendant and has confirmed the judgment and decree of the Trial Court.

9. Being aggrieved with the aforesaid judgments of both the Courts below, the defendant has preferred the present appeal on various legal points. The present appeal has been admitted on 25.07.2011 for the following substantial questions of law:-

“(1) Whether on the facts and in the circumstances of the case, the courts below were justified in deciding the dispute with regard to challenge of suspension order when the order itself has been revoked by the appellant Nagarpalika

(2) Whether the order passed by the lower appellate court is vitiated on the ground of not having framed point for determination as contemplated under Order 41 Rule 31 of the Code of Civil Procedure, 1908 and having not discussed and decided the issues involved in the appeal”

10. Heard learned advocate Mr.Murali Devnani for the appellant- defendant and learned advocate Mr.Dipak R. Dave for the respondent- plaintiff at length . Perused the Records and Proceedings of the Trial Court and the impugned judgments of both the Courts and citations relied on by the learned advocates appearing for the respective parties.

11. Learned advocate Mr.Devnani for the defendantappellant has vehemently submitted that the plaintiff has challenged the order of suspension before the Courts below. He has submitted that the authority had invoked the suspension order. He has submitted that the plaintiff was served with the notice to resume his duty, but, he did not care to resume his duty and therefore pending the inquiry, suspension order was initially passed and thereafter it was revoked by the authority and yet the plaintiff did not resume the duty. Mr.Devnani has also submitted that there is bar under Section 9 of the Code of Civil to entertain the Civil Suit against the order of suspension. Learned advocate Mr.Devnani has also submitted that the Courts below has committed error of law in setting aside the suspension order and in passing the impugned decree in favour of the plaintiff. He has submitted to allow the present appeal by quashing and setting aside the judgment and decree of both the Courts below. He has relied upon the following decisions in support of his submissions.

(i) In case of Chandrakant Tukaram Nikam & Ors Vs. Municipal Corporation of the City of Ahmedabad reported in 1993 (2) G.L.H. 756, especially para nos.26 and 37 which are as under:-

26. …….Though it is true that the primary jurisdiction of the Civil Court to entertain the suit is determined by reference to the averments made in the plaint of the suit and accepting the fact that plaintiff is the dominus litis who decides its forum on the basis of averments made in the plaint, while finally answering the question of jurisdiction the averments Imade in the written statement filed by the defendant do assume importance especially when factually such averments cannot be disputed. Therefore, while deciding this vexed question of jurisdiction at appropriate stage, the averments made in the written statement and their effect on the question of jurisdiction of the City Civil Court at Ahmedabad to entertain the suits filed by the workman would assume importance.

(ii) In case of Rajasthan State Road Transport Corporation & Anr Vs. Krishna Kant etc. reported in 1995 (2) G.L.H. 116, it has held in para no.24 as under:-

“24. Premier Automobiles was decided by a Bench comprising A.Alagiriswami, P.K. Goswami and N.L.Untwalia, JJ. The Court found that the dispute concerned therein involved adjudication of rights/obligations created by the Industrial Disputes Act which means that it fell under Principle No.2 in Dhulabhai. Even so, the Court considered several decisions, English and Indian, on the subject and enunciated the following principles in Paras 23 and 24:

"23. To sum up, the principles applicable to the jurisdiction of the civil court in relation to an industrial dispute may be stated thus: (1) if the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil court.

2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil court is alternative, leaving it to the election of the suiter concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.

(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to act an adjudication under the Act.

(4) If the right which is sought to be enforced is a right created under the Act such as Chapter V-A then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute, as the case may be.

24. We may, however, in relation to principle No.2 stated above hasten to add that there will hardly be a dispute which will be an industrial dispute within the meaning of Section 2(k) of the Act and yet will be one arising out of a right or liability under the general or common law only and not under the Act. Such a contingency, for example, may arise in regard to the dismissal of an unsponsored workman which in view of the provision of law contained in Section 2A of the Act will be an industrial dispute even though it may otherwise be an individual dispute. Civil Courts, therefore, will have hardly an occasion to deal with the type of cases falling under principle No. 2. Cases of industrial disputes by and large, almost invariabley, are bound to be covered by principle No.3 stated above."

(iii) In case of Milkhi Ram Vs. Himachal Pradesh State Electricity Board, in Supreme Courts decision in Civil Appeal No.1346 of 2010 dated 08.10.2021, has held in para nos.4 and 16 as under:-

“(4) Whether the civil court has jurisdiction and whether the Plaintiff had completed 240 days of uninterrupted service were the main issues framed by the civil court. Both the issues ware answered in favour of the plaintiff. The learned Judge referred to the provisions of Section 25B and 25F of the ID Act and noted that the plaintiff had rendered service for well above 240 days in one year and therefore his service could not have been terminated without complying with the statutory requirement. Accordingly, the suit was decreed ordering reinstatement of the plaintiff with back wages. The defendant was directed to also consider regularization of service, for the plaintiff.

16. As can be seen from the material on record, the challenge to the termination was founded on the provisions of the ID Act. Although jurisdictional objection was raised and a specific issue was framed at the instance of the employer, the issue was answered against the defendant. This Court is unable to accept the view propounded by the courts below and is of the considered opinion that the civil court lacks jurisdiction to entertain a suit structured on the provisions of the ID Act. The decree favouring the plaintiff is a legal nullity and the finding of the High Court to this extent is upheld.”

12. Per contra, learned advocate Mr.Dave for the plaintiff has vehemently submitted that the Courts below have not committed any error of facts and law in passing the decree in favour of the plaintiff. He has also submitted that there is concurrent finding of facts by both the Courts below that the defendant has not produced any documentary evidence that any departmental inquiry was initiated against the plaintiff. He has also submitted that on the evidence on record, the Courts below have factually held that the plaintiff could not resume his duty as he was suffering from kidney disease and therefore the suspension order was illegal. Mr.Dave has also vehemently submitted that this is the concurrent finding of facts by both the Courts below and therefore being a second appellate Court, this Court cannot interfere with such finding of the facts. He has also submitted that during the suspension period, no suspension allowance was granted to the plaintiff and this fact also has been considered by both the Courts below. He has submitted that there is no substantial question of law involved in this matter and therefore the appeal may be dismissed by confirming the decree of both the Courts below. He has submitted that the reliance placed on the decisions by the learned advocate for the appellant is factually not applicable to the present case. He has prayed to dismiss the appeal. He has relied upon the following decision of the Apex Court.

(i) In case of Rajasthan State Road Transport Corporation and Anr Vs. Bal Mukund Bairwa reported in 2009 (4) SCC 299, it has held in para nos.15, 21, 22 and 23 as under:-

“15. The question in regard to the jurisdiction of a Civil Court vis-s-vis adjudication of rights/obligations created by or under the 1947 Act came up for consideration in The Premier Automobiles Ltd. vs. Kamlekar Shantaram Wadke of Bombay & ors. 1976 1 SCC 496, wherein following the dicta laid down in Wolverhampton New Waterworks Co. vs. Hawkesford, 1859 6 CB (NS) 336, law was laid down in the following terms:

"23. To sum up, the principles applicable to the jurisdiction of the civil court in relation to an industrial dispute may be stated thus:

(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil court.

(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.

(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.

(4) If the right which is sought to be enforced is a right created under the Act such as Chapter V-A then the remedy for its enforcement is either Section 33-C or the raising of an industrial dispute, as the case may be.

21. A dispute arising in between an employer and employee may or may not be an industrial dispute. The dispute may be in relation to or arising out of a fundamental right of the employee, or his right under a Parliamentary Act and the Regulations framed thereunder, and/or a right arising under the provisions of the Industrial Disputes Act or the sister laws and may relate to same or similar rights or different rights, or even may be based on common law right or contractual right. The question in regard to the jurisdiction of the civil court must, therefore, be addressed having regard to the fact as to which rights or obligations are sought to be enforced for the purpose of invoking or excluding the jurisdiction of a civil court.

22. Appellant, as noticed hereinbefore, is a State within the meaning of Article 12 of the Constitution of India. If an act on its part is found to be wholly unreasonable or arbitrary, the same would be violative of Article 14 of the Constitution of India. In certain situations, even gross violation of the principles of natural justice has been held to come within the ambit of Article 14.

See also Satyavir Singh & ors. vs. Union of India & ors. 1985 4 SCC 252, Delhi Transport Corporation vs. D.T.C. Mazdoor Congress & ors. 1991 Supp 1 SCC 600, Union of India & Anr. vs. Tulsiram Patel 1985 3 SCC 398, Central Inland Water Transport Corporation Limited & Anr. vs. Brojo Nath Ganguly & Anr. 1986 3 SCC 156.

Any order passed in violation of the principles of natural justice save and except certain contingencies of cases, would be a nullity. In A.R. Antulay (supra), this Court held:

"No prejudice need be proved for enforcing the fundamental rights. Violation of a fundamental right itself renders the impugned action void. So also the violation of the principles of natural justice renders the act a nullity."

23. If an employee intends to enforce his constitutional rights or a right under a statutory Regulation, the civil court will have the necessary jurisdiction to try a suit. If, however, he claims his right and corresponding obligations only in terms of the provisions of the Industrial Disputes Act or the sister laws so called, the civil court will have none. In this view of the matter, in our considered opinion, it would not be correct to contend that only because the employee concerned is also a workman within the meaning of the provisions of the 1947 Act or the conditions of his service are otherwise governed by the Standing Order certified under the 1946 Act ipso facto the Civil Court will have no jurisdiction. This aspect of the matter has recently been considered by this Court in Rajasthan State Road Transport Corporation & ors. vs. Mohar Singh 2008 5 SCC 542. The question as to whether the civil court's jurisdiction is barred or not must be determined having regard to the fact of each case.

If the infringement of Standing Order or other provisions of the Industrial Disputes Act are alleged, the civil court's jurisdiction may be held to be barred but if the suit is based on the violation of principles of common law or constitutional provisions or on other grounds, the civil court's jurisdiction may not be held to be barred. If no right is claimed under a special statute in terms whereof the jurisdiction of the civil court is barred, the civil court will have jurisdiction.

Where the relationship between the parties as employer and employee is contractual, right to enforce the contract of service depending on personal volition of an employer, is prohibited in terms of Section 14(1)(b) of the Specific Relief Act, 1963. It has, however, four exceptions, namely, (1) when an employee enjoys a status, i.e., his conditions of service are governed by the rules framed under the proviso appended to Article 309 of the Constitution of India or a statute and would otherwise be governed by Article 311(2) of the Constitution of India; (2) where the conditions of service are governed by statute or statutory Regulation and in the event mandatory provisions thereof have been breached; (3) when the service of the employee is otherwise protected by a statute; and (4) where a right is claimed under the Industrial Disputes Act or sister laws, termination of service having been effected in breach of the provisions thereof.

Appellant - Corporation is bound to comply with the mandatory provisions of the statute or the regulations framed under it. A subordinate legislation when validly framed becomes a part of the Act. It is also bound to follow the principles of natural justice. In the event it is found that the action on the part of State is violative of the constitutional provisions or the mandatory requirements of a statute or statutory rules, the civil court would have the jurisdiction to direct reinstatement with full back wages.

In Praga Tools Corpn. Vs. C.A. Imanual [(1969) 1 SCC 585], it was held:-

"6. ... Therefore, the condition precedent for the issue of mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. An order of mandamus is, in form, a command directed to a person, corporation or an inferior tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorizing their undertakings. A mandamus would also lie against a company constituted by a statute for the purposes of fulfilling public responsibilities."

[See also Rajasthan State Road Transport Corporation & ors. vs. Mohar Singh (supra)].

13. Having considered the submissions made on behalf of both the sides coupled with the records and proceedings of the case and both the judgments and the decisions cited at bar, it is crystal clear that the plaintiff has challenged the order of suspension. It also reveals from the record that the suspension order came to be revoked in February 1982. It also appears from the pleadings of the defendants that on the basis of suspension order dated 06.08.1981, they are not going to dismiss the plaintiff from the service. It is also contended that the suspension order is only an interim measure during the departmental inquiry. It is also pleaded that the suspension order dated 06.08.1981 has already been revoked and the plaintiff is directed to resume his duty and yet the plaintiff has not remained present on duty since 03.03.1982 and therefore order for stoppage of payment of suspension allowance and salary has been passed on 09.03.1982. It appears from the record that the plaintiff has filed the suit on 04.02.1982. Thus, after filing of the suit, suspension order has already been revoked.

14. Both the Courts below have held the action of the defendant of suspending the plaintiff as illegal and also held that the Civil Court has jurisdiction to entertain the suit. Now, admittedly the relationship between the parties are not governed under the Industrial Disputes Act and it is governed under the Civil Service Rules and therefore the action of the defendants having civil consequences can be challenged by the plaintiff by way of filing of the suit as per the rules prevailing at the time of filing of the suit. In view of the decision of the Apex Court in case of Rajasthan State Road Transport (Supra), the suit filed by the plaintiff can be entertained by the Civil Court and the observations of the Trial Court regarding the jurisdiction of the Civil Court is proper one.

15. However, it is pertinent to note that mere passing of suspension order does not give any right to a civil servant. Merely by placing a person under suspension does not give any right to such person to challenge the action of suspension. Suspension is not a penalty under the Service Law. It is for the department to decide as to whether after suspending the concerned person and after due inquiry the service of such person needs to come to an end or not. Under the service jurisprudence, suspension is not a penalty. Now, admittedly in the present case, suspension order has been revoked by the authority therefore, when there was no existence of any suspension order there was no any infringement of the right of the plaintiff to challenge such order. By way of filing the suit and claiming the relief, the plaintiff wanted to curtail the rights of the defendant of initiating any departmental inquiry against him.

16. It appears from the judgment of the Trial Court that it has held the suspension as illegal and unconstitutional on the ground that even after revoking of the suspension order, no suspension allowance or salary was paid to the plaintiff. However, it is pertinent to note that after revoking of suspension order, if no salary is paid or suspension allowance is not paid then that is the new cause of action for the plaintiff. It is also pertinent to note that after revoking of the suspension order, if the department wants to initiate any departmental inquiry under the service rules, that fact would not be sufficient to hold the suspension as illegal. It is always open for the department to initiate departmental inquiry as may be permissible under the service rules and regulation against its employee. An employee cannot insist or demand that no departmental inquiry be held against him. Even the Court cannot grant such relief preventing the department employer from initiating any departmental inquiry as permissible under the service rules and regulations. In the present matter, it appears from the record that by way of filing the suit, the plaintiff wanted that no departmental action is taken against him on the basis of the suspension order. But when the suspension order itself has been revoked by the department and the department wanted to initiate departmental inquiry as admissible under the service law, then, such departmental inquiry cannot be banned permanently. Considering the facts and circumstances of the present case, it clearly appears that by passing the suspension order, the defendant has not initiated any illegal action and has not dismissed the plaintiff from the service. Therefore, it was rightly pleaded by the defendant that the suit itself is a premature. Hence, considering the facts and circumstances of the present case, it is crystal clear that both the Courts below have committed serious error of law in passing the impugned decree in favour of the plaintiff merely on the order of suspension. Therefore, considering the facts and circumstances of the present case, the legal point raised at point no.1 is answered in the tune that both the Courts below were not justified in deciding the dispute with regard to the challenge of suspension order when the order itself has been revoked by the appellate nagarpalika.

17. Regarding the legal question of law raised, which is based upon the provisions contained in Order 41 Rule 31 of the Code of Civil Procedure is concerned, it is worthwhile to reproduce the Order 41 Rule 31 which reads as under:-

The judgment of the Appellate Court shall be in writing and shall state-

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.

18. It is well settled that the object of requiring an appellate Court to record in its judgment the particulars mentioned in this Rule is two fold, namely; (a) to afford the parties an opportunity of knowing and understanding the grounds of the decision with a view to enable them to exercise, if they see fit and are so advised, the right of Second Appeal conferred by Section 100 of the Code of Civil Procedure and (b) to enable the High Court in Second Appeal to judge whether the lower appellate Court has properly appreciated the case and has decided it after applying its mind to it and considering the evidence. This rule is imperative and a judgment which is not in accordance with it, is not drawn according to the law, however substantial compliance with the rule is enough. At the same time, it is imperative for the First Appellate Court to state and raise the point of determination. When the First Appellate Court simply state that whether the judgment and decree of the Trial Court is liable to be set aside, it carry no legal meaning. However, when no point of determination is formulated by the Appellate Court, but it had discussed every point raised by the parties and considered all evidence on record, the judgment of the Appellate Court would be proper one. Considering this legal aspects, if we consider the judgment of the First Appellate Court, it appears that the First Appellate Court has raised only one issue, but at the same time, has concurred with the findings of the Trial Court and has also considered the evidence on record. Of course, the First Appellate Court has not referred to the entire evidence in detail but has concurred with the finding of the Trial Court. Therefore, under the facts and circumstances of the present case, the impugned order passed by the Appellate Court is not vitiated on the ground of not having framed points for determination under Order 41 Rule 31 of the Code of Civil Procedure.

19. Thus, considering the facts and circumstances of the present case, it clearly transpires that both the Courts below have committed error of law in passing the impugned decree in favour of the plaintiff, especially when the suspension order was revoked. After revocation of the suspension order, if any inquiry is initiated or any action is taken against the plaintiff, then, the plaintiff would have separate cause of action for filing appropriate proceedings against the defendant for redressal under the service rules and regulations applicable to him. Therefore, considering the facts and circumstances of the present case, the present appeal is liable to be allowed and judgment and decree of both the Courts below are required to be quashed and set aside and the suit of the plaintiff is liable to be dismissed.

20. In view of the above discussions, I pass the following final order in the interest of justice.

ORDER

(i) The present Second Appeal is hereby allowed.

(ii) The impugned judgment and decree passed by the First Appellate Court dated 12.01.2011 in Civil Appeal No.17 of 2008 as well as the judgment and decree dated 30.07.2007 passed by the learned Principal Senior Civil Judge, Porbandar in Regular Civil Suit No.32 of 1982 are hereby quashed and set aside. The plaintiff’s suit stands dismissed.

(iii) Considering the facts and circumstances of the case, parties are directed to bear their respective cost of all the proceedings.

(iv) Decree to be drawn accordingly in this Second Appeal.

(v) Along with the copy of this judgment and decree, Records and Proceedings be sent back to the Trial Court.