1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : S.B. Civil Second Appeal No.74/1993. (Bheru Lal Vs. State of Rajasthan & Others) DATE OF JUDGMENT : July 23, 2009. P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ Mr. M. Mridul, Sr. Advocate with Mr. R.N. Upadhyay for the appellant. BY THE COURT : Instant second appeal is directed against the judgment and decree dated 15.01.1993 passed by Addl. District Judge, Bhilwara in Civil Appeal No.56/82, whereby, the learned appellate Judge affirmed the judgment and decree dated 08.02.1982 passed by the Munsif Magistrate, Bhilwara by which the learned Magistrate dismissed the suit filed by the appellant-plaintiff. According to facts of the case, appellant- plaintiff preferred a suit before the learned Munsiff, Bhilwara, in which, it is stated that while working 2 on the post of Patwari he was served with a charge- sheet on 20.02.1972 and, in the charge-sheet, it was alleged that he received a sum of Rs.199/- from one Gokul s/o Chhogaji and gave him a rough receipt while stating that regular receipt is not available with him and this amount was retained by him and no entry was made in Government account and misappropriated government money which is misconduct. After receiving the said charge-sheet, a reply was submitted by the appellant-plaintiff, wherein, it is stated that this amount was returned by him to Gokul and he further requested that he may be given an opportunity of hearing. After submitting the reply by the appellant- plaintiff, the Collector, Bhilwara appointed respondent No.3 as Inquiry Officer who has conducted the inquiry and gave finding against him. It is alleged that in the inquiry he was not informed by the respondent that he has a right to be represented by defence assistant in the inquiry proceedings. Therefore, an opportunity of vital facility of defence assistant was not provided to him 3 and inquiry officer gave his finding against the plaintiff-appellant after recording evidence. The plaintiff pleaded in the suit that the inquiry officer did not conduct the inquiry in consonance with the provisions of Rule 16 (8) of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 and, at last, the inquiry officer submitted the report, upon which, he was removed from service. Being aggrieved and dissatisfied with the order of removal dated 20.09.1974 statutory appeal as per CCA Rules, 1958 was preferred before the appellate authority being Board of Revenue but, that, too, was rejected on 11.02.1975. Thereafter, appellant-plaintiff filed review petition before His Excellency the Governor of Rajasthan but the same was rejected vide order dated 27.09.1977. Thereafter, suit was preferred before the trial Court, in which, all the above three orders passed by the Disciplinary Authority, Appellate Authority and Reviewing Authority were challenged. In the suit filed by the appellant-plaintiff, written-statement was filed. The trial Court 4 framed as many as 9 issues for adjudication; and, thereafter, having recorded oral and documentary evidence coming on record, the suit filed by the appellant-plaintiff was dismissed vide judgment dated 08.02.1982, against which, appeal was preferred before the first appellate Court and the same was registered as Civil First Appeal No.62/82 and, finally, the learned Addl. District Judge, Bhilwara dismissed the first appeal filed by the appellant-plaintiff on 15.01.1993 and now, against the impugned judgment passed by the learned lower appellate Court, this second appeal has been filed. In this appeal, at the time of admission on 08.07.1993, notices were issued after admission without formulating substantial question of law. This second appeal was listed in the Court on 20.08.1997. On that date, co-ordinate Bench of this Court observed, after perusal of the order- sheets, that substantial questions of law have not been framed while admitting the appeal, therefore, it would be proper to hear the appeal on the 5 question of existence of substantial question of law as the case cannot be disposed of holding that there is no substantial question of law involved. It was further observed that question as to whether any substantial question of law exists or not and, on what question of law the appeal is to be heard has to be decided at the time of hearing. Today, this case is listed for hearing. It is contended by learned counsel for the appellant that finding of the trial Court and appellate Court is perverse and not based upon sound reasons because admittedly so called inquiry conducted against the appellant-plaintiff by the respondents was not in consonance with law. Further, it is argued by learned counsel for the appellant that there is no evidence in the inquiry upon which penalty of removal from service can be passed. The only allegation is that the appellant retained the deposit for a temporary period. The appellant was not given the opportunity to appoint his defence assistant as provided under the rules. It is also contended that in the CCA Rules there is 6 provision for providing defence assistant but the learned trial Court did not consider this aspect of the matter and dismissed the suit. First of all, it is required to be observed that no question of law was formulated at the time of admitting this second appeal and, upon perusal of the judgment rendered by the trial Court as well as appellate Court, it is obvious that no such ground was raised by the appellant that he was not provided defence assistant in the inquiry. Admittedly, in the departmental inquiry, it is accepted by the appellant-plaintiff that he has received amount from Gokal s/o Chhoga Lal. The case of the appellant-plaintiff is that he received the amount but gave a rough receipt due to non- availability of the receipts. In the pleadings, one more fact is accepted that the said amount was deposited after some time in the office; meaning thereby, appellant-plaintiff himself is admitting the position that he retained amount for quite some time. Therefore, the finding of fact does not require any interference. 7 In my opinion, removal order was passed by the Disciplinary Authority which was affirmed by the appellate authority and, so also, the Reviewing Authority. Thereafter, all the aforesaid orders were challenged by way of filing suit before the trial Court but the trial Court also dismissed the suit vide judgment dated 08.02.1982; and, on appeal, first appellate Court also dismissed the appeal on 15.01.1983; meaning thereby, at all the levels, the case of the appellant was considered and it was found that Disciplinary Authority has not committed any error in passing the order of removal dated 20.09.1974. Therefore, after perusal of the entire record and considering the evidence, no question of law emerges for consideration at the stage of second appeal which requires any interference in the finding arrived at by the learned trial Court as well as appellate Court. In this view of the matter, there is no force in this second appeal. Hence, this appeal is accordingly dismissed. (Gopal Krishan Vyas) J. 8 Ojha, a.