HIGH COURT OF UTTARAKHAND AT NAINITAL SECOND APEAL NO. 76 OF 2004 Managing Director, Seemanchal Pvt. Ltd. Natraj Cinema …. Defendant-Appellant Vs. Deoki Nandan Joshi ….Plaintiff -Respondent 27.6.2008 Hon’ble Rajesh Tandon, J. Heard Shri J.C. Pande, counsel for the appellant and Shri B.S. Adhikari, counsel for the respondent. 2. By the present second appeal filed under Section 100 of Code of Civil Procedure, the appellant has prayed for setting aside the judgment and decree dated 9.7.2004 passed by the District Judge, Pithoragarh in civil appeal no. 6 of 2003 and the judgment and decree dated 23.9.2003 passed by the Civil Judge (S.D.), Pithoragarh in O.S. No. 9/2001. 3. Second appeal was admitted on the following substantial questions of law:- “1. Whether the non-payment of one month salary prior to the removal, entitled the plaintiff/respondent reinstatement on the post, while the plaintiff failed to show or establish it was a condition precedent? 2. Whether a suit for declaration of removal as unlawful and reinstatement on service is 2 maintainable in civil court when the specific forum is available for said purpose? 3. Whether a civil suit in present set of circumstances is barred in respect of removal of an employee covered under Cine-Workers and Cinema Theatre Worker (Regulation of Employment) Act, 1981?” 4. Briefly stated, a suit was filed by the plaintiff for declaration and injunction on the ground that he has worked as Accountant in the Natraj Cinema which was being managed by Seemanchal Pvt. Limited from the year 1979 to the year 1989. After getting promotion, he served the aforesaid establishment on the post of Secretary/Manager till 6.8.2000. On 6.8.2000 after matini show the defendant has closed the cinema hall and terminated the services of the plaintiff. The plaintiff has not been given one month’s pay in lieu of notice. Therefore, the termination of the services of the plaintiff was illegal. The plaintiff then approached the Assistant Labour Commissioner, Kumaon Region and on 28.8.2000, a conciliation between the plaintiff and the defendant has done in which the defendant has agreed to reinstate the workers including the plaintiff. On 14.12.2000, the plaintiff sent a memorandum to the defendant praying for reinstatement but to no avail. Thereafter on 19.3.2001 he sent another memorandum to the defendant in reply of which he was informed that his services are not required by the defendant, hence, the present suit has been filed. 5. The defendant has filed a written statement stating therein that the plaintiff was appointed as Supervisor in the year 1979 and in the year 1989 he was given the responsibility of managing the cinema hall but the plaintiff started showing 3 losses in the cinema hall. It has been alleged that the plaintiff has started embezzling the money of the cinema hall. The plaintiff has purchased the machines of inferior quality on higher rates and caused damages to the cinema hall by way of various means. The monetary condition of the plaintiff is very sound and he is having a house in Pithoragarh including shop and other business. 6. On the pleadings of the parties, the trial court has framed the following issues:- “1- D;k oknh dks fcuk is&uksfVl ¼fof/kd uksfVl½ fn;s ukSdjh ls fudkyus dk izfroknh dk vkns’k voS/k o xSj dkuwuh gS \ ;fn gkWa rks bldk izHkko\ 2- D; oknh vuqrks"k ikus dk vf/kdkjh gS\ 3- D;k oknh ds okn dks ekuuh; U;k;ky; dks lquus dk {ks=kf/kdkj izkIr gS \Þ 7. The plaintiff has examined himself as P.W.1. Towards the documentary evidence, the plaintiff has filed the termination order dated 6.8.2000 i.e. paper no. 10 ga, photocopy of proposal dated 28.2.2000 i.e. paper no. 11 ga, memorandum dated 14.2.2000 i.e. paper no. 12 ga, memorandum dated 5.1.2001 i.e. paper no. 13 ga, memorandum dated 19.3.2001 i.e. paper no. 14 ga and reply of the defendant i.e. paper no. 22.3.2001 i.e. paper no. 15 ga. 8. The defendant has examined Jagdish Chandra Patni as D.W.1. Towards the documentary evidence, the defendant has produced letter of the Managing Director dated 6.1.2000 i.e. paper no. 30 ga/2, letter of Director dated 16.1.2000 i.e. paper no. 31 ga/2, copy of notice i.e. paper nos. 32 ga/1 to 32 ga/2, proposal of Board of Directors dated 6.8.2000 i.e. paper no. 33 ga, letter dated 7.8.2000 written by Seemanchal Pvt. Ltd. i.e. 4 paper no. 34 ga, photo copy of invoice of National Sign Supply i.e. paper nos. 34 ga 3 to 34 ga/5, photocopy of bill i.e. paper no. 35 ga/1, copy of receipt of C.A. report showing profit-loss i.e. paper nos. 35 ga/2 to 35 ga/4, copy of letter dated 14.6.2000 addressed to Deputy District Magistrate, Pithoragarh i.e. paper no. 36 ga and copy of termination order i.e. paper no. 37 ga. 9. While deciding as to whether the order passed by the defendant terminating the services of the plaintiff without giving pay notice, the trial court has come to the conclusion that the termination order dated 6.8.2000 is void and illegal because the services of the plaintiff has been terminated without giving one month notice or pay in lieu of notice. 10. While deciding as to whether the court has jurisdiction to try the suit, the trial court has come to the conclusion that the civil court has the jurisdiction to try the suit. The trial court has recoded the finding to the following effect:- “pwWafd izfroknh ,d O;fDrxr laLFkk gS vkSj ftlesa oknh }kjk yxHkx 21 o"kZ viuh lsok;sa nh x;h vkSj lsok dky ds nkSjku izfroknh }kjk oknh dks dHkh Hkh vuSfrd ,oa nks"kiw.kZ dk;Z djus ds laca/k eas dksbZ fyf[kr :Ik ls vknsf’kr ugha fd;k rFkk oknh }kjk viuh lsok lekfIr ds vkns’k fnukad 6-8-2000 dks voS/k ?kksf"kr djus gsrq eq[; vuqrks"k pkgk x;k gS A ,slh fLFkfr esa izLrqr okn Jo.k dk {ks=kf/kdkj U;k;ky; dks gS A” 11. On the basis of the aforesaid the trial court has decreed the suit of the plaintiff. 12. Aggrieved by the judgment and decree passed by he trial court, the defendant went in appeal. The appellate court has dismissed the appeal and has recorded the finding as under:- 5 “izfroknh@vihykFkhZ }kjk oknh@izR;FkhZ dks lsok lekfIr djus dk vkns’k xSjdkuwuh o voS/kkfud gS vkSj mlus {kfriwfrZ rFkk iqu% mlh in ij cgkyh pkgh gS A ;g lk{; esa vk;k gS fd mlds lkFk tks vU; yksx fudkys x;s mudks lsok esa ys fy;k x;k gS gkykWafd izfroknh@vihykFkhZ dk lk{kh txnh’kpUnz ikVuh Mh0MCY;w0 1 ;g Lohdkj djrk gS fd dc vU; yksxksa dks izcU/kd cksMZ us fu;qDr fd;k tks fudkys x;s Fks] ;g mls Kkr ugha gS] blls Li"V gksrk gS fd izcU/kd cksMZ us tks mlds lkFkh fudkys x;s Fks mudks lsok esa ys fy;k gS ysfdu izR;FkhZ@oknh dks ugha fy;k x;k tc fd mls Hkh fy;k tkuk pkfg;s Fkk A ,slh ifjfLFkfr esa ekWaxs x;s vuqrks"k oknh@izR;FkhZ izkIr djus dk vf/kdkjh gS vkSj fo}ku voj U;k;ky; us tks fnukad 23.9.2003 dks fu.kZ; vkns’k ikfjr fd;k gS og U;k;ksfpr o fof/kor gS mlesa gLr{ksi djus dh dksbZ vko’;drk ugha gS A” 13. Since, the courts below have recorded the concurrent findings of fact, therefore, the judgment and decree recorded by the courts below require no interference. The substantial questions of law involved in the second appeal, therefore, are decided against the appellant. 14. In Kamti Devi (Smt. ) and Anr. V. Poshi Ram (2001) 5 SCC 311, the Court came to the conclusion that the finding thus reached by the first appellate court cannot be interfered with in a second appeal as no substantial question of law would have flowed out of such a finding. 15. In Thiagaraja v. Sri Venugopalaswanmy B. Koil (2004) 5 SCC 762, it has been held that the High Court in its jurisdiction under Section 100 of C.P.C. was not justified in interfering with the findings of fact. The court observed that to 6 say the least the approach of the High Court was not proper. It is the obligation of the Courts of law to further clear the intendment of the legislature and not frustrate it by excluding the same. The Apex Court in a catena of decisions held that where findings of fact by the lower appellate court are based on evidence, the High Court in second appeal cannot substitute its own findings on re-appreciation of evidence merely on the ground that another view was possible. 16. In the case of Madhvan Nair v. Bhaskar Pillai (2005) 10 SCC 553, the Apex Court has observed that the High Court was not justified in interfering with the concurrent findings of fact. The Apex Court has observed that it is well settled that even if the first appellate court commits an error in recording a finding of fact, that itself willl not be a ground for the High Court to upset the same. 17. In the case of Harjeet Singh v. Amrik Singh (2005) 12 SCC 270, the Apex Cout has held that the High Court has no jurisdiction to interfere with the findings of fact arrived at by the first appellate court. 18. In H.P. Pyarejan v. Dasappa 2006 AIR SCW 715, the Apex Court has observed as under:- “Under Section 100 of the Code (as amended in 1976) the jurisdiction of the High Court to interfere witht the judgments of the courts below is confined to hearing on substantial question of law. Interference with findings of fact by the High Court is not warranted if it involves re-appreciation of evidence.” 7 19. In Commissioner Hindu Religious & Charitable Endowments v. P. Shanmugama and others (2005) 9 SCC 232, it has been held as under :- “14. In our view, High Court has no jurisdiction in the second appeal to interfere with the finding of facts recorded by the first appellate court after careful consideration of the evidence, oral and documentary, on record. It was not open to the High Court to reverse the findings of fact as it has done.” 20. Shri J.C. Pandey, counsel for the appellant has stated that the cinema hall has already been closed. In view of the above liberty is given to the appellant to represent before the new management who shall take services of the appellant and shall fix the remuneration accordingly. 21. Subject to the aforesaid, I find no merit in the second appeal. Second appeal, therefore, lacks merit and is liable to be dismissed. 22. Consequently, second appeal is dismissed. No order as to costs. (Rajesh Tandon, J.) 27.6.2008 Avneet