Delhi District Court
Sh.N.D.Sharma vs Delhi Power Co. Ltd on 27 July, 2011
IN THE COURT OF SH. S.K.MALHOTRA, SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI.
Suit No.382/06/04.
Sh.N.D.Sharma
S/o.Sh.B.D.Sharma,
R/o.AM-64, Shalimar Bagh,
New Delhi. .............Plaintiff
Vs.
01. Delhi Power Co. Ltd.
Through its Chief Managing Director,
Shakti Sadan, Kotla Road,
New Delhi.
02. Sh.N.P.Singh,
A.G.M.A.,
Now G.M.H.R., I.P.G.C.L. (GENCO)
R.P.H.
Delhi.
03. Sh.A.K.Chaturvedi,
Dy.CLO (1), Erstwhile DVB
Flat No.30, Gulab Apartments,
Sector 9, Rohini,
New Delhi. ...........Defendants
Date of institution : 13.05.2004.
Date of reservation : 02.07.2011.
Date of pronouncement : 27.07.2011.
Case No.382/06/04 page 1 of page 14
JUDGMENT
01. This is a suit for declaration and mandatory injunction as filed by the plaintiff against the defendants.
02. In brief, the facts of present case as made out in the plaint are that plaintiff was working as Assistant Legal Officer, employee no.63, legal department and posted at Tis Hazari Complex in the erstwhile DVB. The plaintiff retired on attaining the age of superannuation on 31.10.2000. It is stated that memorandum dated 04.04.2000 under rule 14 of the CCS (CC & A) rules 1965, was issued to the plaintiff on 04.04.2000 as to why major penalty proceedings may not be initiated against him on the charge of dereliction/negligence performance of duties and act unbecoming of an official/officer of the board in the court case of Sh.M.L.Chopra, private Secretary and Ors. Vs. DVB. The plaintiff submitted reply dated 19.04.2000, but, was stated to be not satisfactory, therefore, the matter was referred for departmental enquiry in respect of the following allegations:-
"ARTICLE I :
Shri N.D.Sharma, E.No.63, while functioning as ALO-V is alleged to be guilty of the charge of dereliction of duty and act unbecoming of an official/officer of the Board in the Court case of Shri M.L.Chopra, P.S.and Others Vs. D.V.B. The alleged detailed Statement of imputations of misconduct in support of the above charge is a sunder:-
Sh.N.D.Sharma while functioning as ALO(V) in Legal Deptt.of DVB is required to maintain absolute integrity, devotion to duty and further do nothing which is unbecoming of an official/officer of the D.V.B. Case No.382/06/04 page 2 of page 14 It has been reported that the Court case filed by Sh.M.L.Chopra, Pvt.Secretary and others Vs.D.V.B was entrusted to Shri N.D.Sharma, ALO(V) for proper pervi to defend the interest of the Board, to coordinate with the concerned departments to ensure compliance of directions of Hon'ble Court.
In the said case, the Hon'ble Court passed certain directions on 7.9.99 and interim order, the reply thereof was to be filled on 1.10.99 but Shri N.D.Sharma failed to obtain certified copy of the orders for further necessary action by the Legal/Administrative departments. Because of his negligence the orders of the Hon'ble Court could not be carried out/written statement could not be filed in time. Consequently, the petitioners in the case have filed contempt petition against the Board for non-compliance of the Court directions which came up for hearing on 10.2.2000 and 19.2.2000. Shri Sharma again failed to provide the same to the A & G Section of the Board who are concerned to defend this case. This has led to unpleasant situation and the Legal and Administrative Deptts.had to face embarrassment because the Court has taken a serious view of non-compliance of its directions and held that the DVB has flouted the orders of the Court and therefore made personal appearance of Hon'nle Chairman and the undersigned necessary on the next D.O.H. The court acceded the request with great persuance that Shri D.R.Malhotra APO (A & G) be summoned to explain as to how orders of the Court could not be obeyed. The A & G Section of the Board has confirmed that neither they have received the copy of the order dated 7.9.99 nor the copy of the contempt petition.
Shri Sharma was issued a Memo No.Dy.C.LO(I)/24012 dated 21/22.02.2000 and 13.3.2000 in connection with 07 number of missing Case No.382/06/04 page 3 of page 14 case files relevant in this case which were sent to him vide D.No.1752 dated 30.9.99 to explain lapse on his part, but he failed to explain the lapse on his part specifically in his reply dated 21.3.2000.
In the Office Order No.Dy.CLO(II)/1796 dated 8.6.99 ALO's have been directed to obtain copy of interim orders final judgments/decree passed by the lower court, High Court in the pending disputes and provide the same to Legal Deptt.alongwith considered view for filing an appeal etc.in the matter. But in the case referred to above, he failed in performance of his obligatory duties.
From the above, it is evident that Shri N.D.Sharma failed miserably in performance of his duties and to maintain the relevant documents of this case properly. This act on his part amounts to gross misconduct of dereliction of duty, negligence and an act unbecoming of an officer of the DVB thereby violating Rule 3(1) (ii) & (iii) of CCS (Conduct) Rules, 1964 which renders him liable for disciplinary action under Rule 14 of CCS (CCA) Rules, 1965."
03. It is the case of the plaintiff that in the above context, enquiry was conducted against the plaintiff and as per the findings, both the charges were held as not proved vide enquiry report dated 28.02.2001, however, the competent authority issued a show cause notice again to the plaintiff proposing to impose penalty of 25% cut in pension for a period of 5 years in furtherance to resolution no.27.2001/398A dated 12.07.2001 and since the board had already approved the impugned penalty, the plaintiff drew the attention towards these lapses and submitted the detailed facts vide representation dated 10.09.2001 and in response to the representation, plaintiff was granted personal hearing by Member (Admn.). During the course of personal hearing, Member (Admn.) was fully satisfied with the Case No.382/06/04 page 4 of page 14 explanation of the plaintiff and also recorded the facts of deliberation which took place in personal hearing. It is stated that Authority, which granted personal hearing, was fully satisfied that no penalty was leviable to be imposed and the plaintiff was required to be fully exonerated, however, vide resolution dated 02.01.2002, penalty of 10% cut in pension for a period of 1 year was imposed upon the plaintiff as conveyed by AGM (Admn.) vide order dated 28.01.2002. Aggrieved by the imposed penalty, the plaintiff preferred an appeal dated 12.02.2002, however, the appeal was also dismissed vide order dated 03.06.2002, without passing any detailed speaking orders on the submissions made by the plaintiff. It is alleged that plaintiff stated in the representation that the disciplinary case against the plaintiff was made with malafide and in connivance with Sh.A.K.Chaturvedi, the then Dy.CLO(1) in the legal department of the erstwhile DVB and the main reason was that there was some resentment going on in the legal department regarding appointment/absorption on deputation of outsider including Sh.A.K.Chaturvedi, whose promotion was also being aggressively effected and on this score, Sh.A.K.Chaturvedi started harassing and black mailing the officers in the legal department in connivance with Sh.N.P.Singh, the then AGM (A) who was instrumental in the appointment of the outsiders. It is further alleged that the allegation of missing of the important files seven in number, was levelled against the plaintiff by Sh.A.K.Chaturvedi who kept these files deliberately under his control and on thorough search, these files were recovered, from his seat. It is further case of the plaintiff that the action of imposing the penalty on the plaintiff is apparently illegal and arbitrary and infact, action was required to be initiated against the officers from whose possession, the relevant important files were recovered, which were alleged to be in Case No.382/06/04 page 5 of page 14 possession of the plaintiff. Hence, the present suit for a grant of decree of declaration declaring the action of the defendant of initiating the major penaly proceedings and imposing the impugned penalty as illegal and arbitrary and for a decree of mandatory injunction directing the defendant to quash the imposed penalty of 10% cut in pension for a period of one year vide order dated 28.01.2002 and the payment recovered from the plaintiff on account of 10% cut, in pension, be directed to be refunded to the plaintiff alongwith interest and for a decree of mandatory injunction, directing the defendant no.1 to initiate disciplinary proceeding against Sh.A.K.Chaturvedy Dy.CLO(1) who has since reverted to his parent department and Sh.N.P.Singh, AGMA who is now working as GMHR, IPGCL (GENCO) RPH, is filed.
04. Defendant no.1 DPCL contested the present suit by filing detailed written statement, while taking preliminary objections that plaintiff has failed to describe that against which of the defendant the alleged declaration has been sought for; plaintiff is aware that defendant no.1 has no power authority or control on the defendant no.2 who is working as General Manager of IPGCL, a separate entity and the defendant no.3 who admittedly has been reverted back to his parental department; the plaintiff has levelled false allegations against the defendant no.2 and 3 of alleged malafide; order dated 28.01.2002 shows that after considering the plaintiff's reply to the show cause notice, the competent authority was pleased to cut in the pension 10% and not of 25%; the appellate authority considered the matter and has unanimously resolved to dismiss the said appeal. On merits the contents of the plaint have been denied, while submitting that suit of the plaintiff be dismissed with heavy cost.
Case No.382/06/04 page 6 of page 14
05. Defendant no.2 also filed detailed written statement, while taking preliminary objections that the plaintiff filed the present suit against three defendants, but, has failed to describe that against which of the defendant, the alleged declaration has been sought; the plaintiff has impleaded the defendant no.2 and other officials/employees of the erstwhile DVB Who had acted in their official capacity and had no personal interest, therefore, suit is liable to be dismissed; On merits, the contents of the plaint have been denied, while submitting that the disciplinary proceedings initiated against the defendant was in strict compliance under Rule 14 of CCS (CC & A) rules 1965 on the charge of dereliction/negligence performance of duty and act of unbecoming of an official/officer of the board in a court case of Sh.M.L.Chopra, private Secretary and Ors. Vs.DVB. It is prayed by defendant no.2 that suit of the plaintiff be dismissed with heavy cost.
06. Plaintiff filed the replication to the written statement of defendant no.1 and 2, whereby he denied the facts as mentioned in written statements, while reaffirming the contents as made in the plaint.
07. From the pleadings of the parties following issues were framed vide order dated 08.12.2004:-
1. Whether imposition of major penalty upon the plaintiff by the defendants is not in accordance with law and is in violation of the principles of natural justice ? OPP.
2. Whether the suit is not maintainable against the defendants nos.1 & 2 who acted in official capacity while taking action against the plaintiff ? OPP.
3. Relief.
08. It is matter of record that an application u/o 1 rule 10 r/w 151 Case No.382/06/04 page 7 of page 14 CPC was filed on behalf of defendants while submitting that Delhi Transco. Ltd. be impleaded as a party and DPCL be deleted from the array of parties, however, the application was opposed by the plaintiff and vide order dated 21.12.2005, the application of defendant to implead the Delhi Transco Ltd. as a necessary party was dismissed.
09. In support of its case, plaintiff examined himself as PW-1, defendant no.1 examined Sh.M.K.Chaudhary, as DW-1 and defendant no. 2 and defendant no.3 examined themselves as DW-2 and DW-3.
10. I have heard ld. counsel for parties as well as perused the material placed on record including written submissions as filed on behalf of plaintiff and defendants. My issue wise findings are as under:-
Issue no.1.
11. Onus to prove this issues was upon the plaintiff. PW-1 proved the copy of departmental enquiry conducted against him as Ex.PW-1/A and this report is also admitted by the defendants and has also been proved as Ex.DW-1/4. Perusal of departmental enquiry procedings conducted against the plaintiff shows that the enquiry officer after conducting the enquiry, came to the conclusion that the charge of dereliction of duty as contained in the article of charge and statement of imputation/misconduct against Sh.N.D.Sharma, Asstt.Legal Officer, employee no.63, is held to be "NOT PROVED". The report Ex.DW-1/4 further goes to show that the charges against the plaintiff was to the following effect;-
That Sh.N.D.Sharma, employee no.63, while functioning as ALO-V is alleged to be guilty of the charge of dereliction of duty and act unbecoming of an official/officer of the board in a court case of Sh.M.L.Chopra, private Secretary and Ors. Vs.DVB.
Case No.382/06/04 page 8 of page 14
12. The statement of imputation of misconduct/allegation against the plaintiff was to the following effect:-
(I).That court case filed by Sh.M.L.Chopra and Ors. was entrusted to Sh.N.D.Sharma for proper pairavi to defend the interest of the board to coordinate with the concerned departments to ensure compliance of the direction of Hon'ble Court. (II).The court passed certain directions in the above mentioned case on 07.09.1999 and interim order, the reply thereof, was to be filed on 01.10.1999, but, Sh.N.D.Sharma failed to obtain copy of the orders for further necessary action by the legal/administrative department and because of the negligence, the orders of the court could not be carried out/written statement could not be filed in time and consequently, the petitioner in that case, filed contempt petition against the board for non compliance of court direction, which came up for hearing on 10.02.2000 and 19.02.2000 and Sh.N.D.Sharma again failed to provide the same to A & G Section of the board, who were concerned to defend the case and this has led to unpleasant situation and the legal and administrative departments had to fact embarasment because the court had taken a serious view of non compliance of its directions. (III).Plaintiff was issued a memo dated 21/2.02.2000 and 13.03.2000 in connection with seven numbers of missing files, relevant to this case, which were sent to him vide diary no.1752 dated 30.03.1999 to explain lapse on his part, but, he failed to explain the lapse on his part, specifically, in his reply dated 21.03.2000. (IV).Office order no.Dy.CLO(II)/1796 dated 08.06.1999, ALOs have been directed to obtain copy of interim order, final Case No.382/06/04 page 9 of page 14 judgments/decree passed by lower court, High Court, in the pending disputes and provide the same to legal department alongwith considered view for filing an appeal in the matter, but, in this case, plaintiff failed in performing his obligatory duties.
13. The enquiry officer after considering the evidence of both the parties, and after considering the documents, came to the conclusion vide his report Ex.DW-1/4 that the orders of the court dated 07.09.1999 were conveyed to AO (G) office both by the CO (plaintiff) as per Ex.D-1 and by PS to Dy.CLO as per Ex.D-2 and the fact that seven numbers files were infact, not received by the CO, the only reasonable conclusion that emerges is that there was no lapse on the part of Charged Officer (plaintiff).
14. However, the disciplinary authority disagreed with the finding of the enquiry officer and unanimously resolved to impose the penalty of 25% cut in pension upon the charged official for a period of five years and accordingly, a show cause notice Ex.DW-2/4 was issued to the plaintiff and after considering the representation of plaintiff vide order Ex.DW-1/7, penalty of 10% cut in pension for a period of one year was imposed upon the plaintiff. It is settled law that when the disciplinary authority disagrees with the findings of the enquiring authority, it is required to record its own reasons for such disagreement and also to record its own findings on such charge. The Additional General Manger (A) who is also defendant no.2 in the present case, had issued the show cause notice dated 16.08.2001 Ex.DW-2/4 and order dated 28.01.2002 i.e.Ex.DW-1/7, mentioning the reasons for disagreement to the report of enquiry officer for the following reasons:-
1. There is no evidence that the C.O. has informed the concerned Case No.382/06/04 page 10 of page 14 department about the permanent stay order.
2. The copy of the contempt petition dated 10.02.2000 was not sent to A & G Section which was arranged by A & G Section much after 10.02.2000 i.e.on 01.03.2000.
3. The CO could not explain the lapses in regard of missing seven numbers of files, folders, handed over to him, by Dy.CLO in the meeting, which were entered by the diarist vide diary no.175 on 30.09.1999, though, the signatures of CO could not be obtained and missing files were found in the record, when CLO joined and were returned to AO (G) department.
4. Though, the case was entrusted to the counsel, the CO was also responsible to coordinate and to communicate the orders/petitions to the concerned department for necessary action.
15. On the basis of above observations, the defendant Board against the findings of the enquiry report dated 28.02.2001, unanimously resolved to impose the penalty of 25% cut in pension upon the charged official/plaintiff for a period of five years, which was later on, reduced to 10% cut for one year. The enquiry report Ex.DW-1/4 was given after examining the four witnesses by the department and two witnesses in support of the charged official. Perusal of the record shows that Sh.A.K.Chaturvedi, Dy.CLO-(I), who is also defendant no.3, in his cross examination as conducted during the enquiry proceedings, confirmed that the case was initially, attended by Sh.Anand Mishra, a panel advocate and as per the his instructions, the case was assigned to Sh.Arya, panel advocate. Ex.D-1 is the copy of plaint sent by CO to Administration/AO (G) as endorsed by Sh.Anand Mishra, panel advocate and it also contained the remarks of CO in respect of maintaining status quo upto 10.09.1999.
Case No.382/06/04 page 11 of page 14 Thus, Sh.A.K.Chaturved, who was Dy.CLO (I), of the department, confirmed during enquiry proceedings that the plaintiff sent the copy of plaint with remarks to maintain status quo upto 10.09.1999. The another witness in this regard is Sh.Arun Kr.Arya, Advocate, who also deposed during enquiry proceedings as DW-1 that the matter was handed over to him on 08.09.1999 through Sh.N.D.Sharma, ALO as per directions of Dy.CLO(I) vide letter dated 08.09.1999. He further deposed that Sh.Anand Mishra, Advocate appeared in the matter on 07.09.1999 and status quo order was passed on 07.09.1999 and vide letter dated 08.09.1999, he and Sh.N.S.Dalal, standing counsel were directed to take up the matter and on 10.09.1999, they asked for adjournment to file written statement as necessary documents and comments were not received. In his cross examination, he confirmed that AO (G) Section was aware of the status quo order dated 07.09.1999 as they discussed this point from time to time in the meeting and further confirmed that as per Ex.D-1 status quo was to be maintained upto 10.09.1999 which was passed on 07.09.1999 in the presence of Mr.Anand Mishra. In view of above admission of Sh.A.K.Chaturvedi Dy.CLO(I) and statement of Sh.A.K.Arya, panel advocate, it cannot be said that the plaintiff informed, nobody in writing, when he admittedly, sent Ex.D-1 i.e.copy of plaint alongwith remarks to maintain status quo upto 10.09.1999 to Admn./A(OG) and even on next day, the file was marked to Sh.Arun Kr.Arya, panel lawyer, through Dy.CLO. When the plaintiff sent the copy of plaint alogwith remarks, regarding status quo, in respect of interim stay to department vide Ex.D-1 and as per direction of Dy.CLO(I), gave the file to Sh.Arun Kr.Arya, panel lawyer on the next date i.e.on 08.09.1999, the reasoning of disciplinary authority that charged official did not inform in writing, or coordinated Case No.382/06/04 page 12 of page 14 with the Admn. Department, is not justified. As far as the issue of seven numbers of missing case files/folders as allegedly handed over to plaintiff by Dy.CLO(I) in the meeting as mentioned in the show cause notice Ex.DW-2/4 is concerned, DW-1 Sh.Arun Kr.Arya, panel advocate, deposed that on 30.09.1999, one case folder pertaining to the case was handed over to him in the meeting itself alongwith the comments. DW-2 Sh.Hargovind, Asstt. Grade-I, deposed that as informed by A(OG) Section the movement of six folders was not available and afterwards, the same were found on the dispatch seat. DW-2 was working as Diary clerk in the office of Legal Cell and deposed during Enquiry proceedings that he was told that after movement of Dy.CLO(I), the movement may be marked to Sh.N.D.Sharma, ALO. Nothing came adverse in his cross examination by the Presenting Officer. There is no evidence that the files, which were later on found on dispatch seat, were given to plaintiff. No such diary register was produced before enquiry officer. There was no evidence on behalf of presenting officer/department before the enquiry officer to show that the seven files were ever entrusted to the plaintiff which were later on found on the desk of dispatch clerk of legal cell. Therefore, the reasons as mentioned in Ex.DW-1/4 in contravention to the findings of the enquiry officer are not justified and against the evidence as led during the enquiry proceedings by department. Therefore, the imposition of major penalty upon the plaintiff by the defendant is not in accordance with law. Accordingly, this issue is decided in favour of plaintiff and against the defendants.
Issue no.2.
16. Onus to prove this issue was upon the defendant. Ld. counsel for defendant argued that the defendants were acting in their official Case No.382/06/04 page 13 of page 14 capacity and the present suit as framed against the defendant no.2 and 3 is not maintainable. The plaintiff has sought the relief of mandatory injunction to direct the department to issue disciplinary proceedings against Sh.A.K.Chaturvedi, who allegedly kept those seven files with him for which the plaintiff was also charge sheeted. Although, it has come in evidence that one file was handed over to Sh.A.K.Arya, panel lawyer, during meeting and six other were found on the desk of the despatcher of Legal Cell. There is no evidence that those files were deliberately kept by Dy.CLO(I). It is a settled law that the authorities whose order is challenged, ought not to be made party to proceedings. Reliance is placed upon authority 2010 III AD DELHI 481. Accordingly this issue is decided against the plaintiff and in favour of defendant no.2 and 3. Relief.
17. In view of my findings on issue no.1, the suit of the plaintiff is decreed alongwith costs in favour of plaintiff and against the defendant no.1 and decree of declaration is passed in favour of plaintiff and against the defendant no.1, declaring the action of defendant/Board for imposing the penalty of 10% cut in pension for period of one year upon the plaintiff vide order Ex.DW-1/7, is illegal and unjustified and a decree of mandatory injunction is passed in favour of plaintiff and against the defendant no.1 and defendant no.1 is hereby directed to refund the amount of penalty of 10% recovered from the pension of plaintiff for a period of one year with interest of 8% per annum from the date of filing of suit till realisation. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in open court ( S.K.MALHOTRA ) on 27.07.2011. SCJ/RC/(North)/DELHI Case No.382/06/04 page 14 of page 14