Delhi District Court
Jagat Singh vs Union Of India on 30 October, 2018
IN THE COURT OF GAURAV RAO, ADJ02 & Waqf Tribunal /
NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI.
CS No. 57226/16 ( Old No. 1276/14)
CNR No. DLND010011622016
Jagat Singh
s/o Shri Ram Singh
Chamber No.373,
Delhi High Court,
New Delhi110003.
........Plaintiff
Vs.
Union of India
(1) Through: Enforcement Directorate
(through its Director)
(2) Through: Secretary, Ministry of Finance,
Department of Revenue, North Block,
New Delhi.
(3) Secretary, Department of Legal,
Ministry of Law,
Justice and Company Affairs,
Judicial Section,
Shastri Bhawan, New Delhi.
..........Defendants
Date of institution : 02.05.2014
Date on which reserved for judgment : 15.10.2018
Date of decision : 30.10.2018
CS No. 57226/16 Jagat Singh V. Union of India 1/33
Decision : Decreed
J U D G M E N T
1. The present suit for recovery of Rs.1,05,08,500/ has been filed
by the plaintiff against the defendants.
1.1 The suit was filed before Hon'ble High Court of Delhi on
02.05.2014 and in view of the notification No. 27187/DHC/Orgl. dated
24.11.2015, the same was transferred to Ld. District & Sessions Judge, New
Delhi District, Patiala House Courts vide orders dated 26.11.2015 and
thereupon assigned to this Court vide orders dated 19.01.2016.
Plaint
2. It is the case of the plaintiff that he is claiming the amount, as
above, as the defendants owe the same to him for having utilized his services
from 10.10.2009 till 17.10.2010 before the Appellate Tribunal, Foreign
Exchange, Janpath, New Delhi.
2.1 It is his case that he was a Senior Panel Counsel for Central
Government from 28.04.2005 to 27.04.2008 and on 12.11.2009 vide order
No.F24(1)/2009Judl., of defendant no. 3, his name was further included, for
CS No. 57226/16 Jagat Singh V. Union of India 2/33
a period of three years, on the panel of Senior Counsels for conducting cases
filed against Public Officers while in service of Central Government, before
the High Court of Delhi and Tribunals/etc.
2.2 It is further his case that as a panel counsel he represented
defendant no.1, before the Appellate Tribunal of Foreign Exchange (ATFE)
at Janpath, New Delhi from 10.10.2009 to 17.10.2010 and vide letter No.
DLA(A)/1/Misc./Adv./09 dated 20.09.2010 issued by Directorate of
Enforcement Lok Nayak Bhawan, Khan Market, New Delhi, his services to
represent defendant no.1 before ATFE were terminated.
2.3 It is further his case that on 01.10.2009, i.e. before the expiry of
three months retainer ship period, he wrote to defendant no.1 that in case the
defendant wanted his services for conducting cases before ATFE, it would
be on the terms and conditions laid down by Ministry of Law in their revised
scheme for engagement of Senior Panel Counsels vide order No.
F24(1)/2009Judl. of defendant no. 1.
2.4 It is further his case that he came to know that defendant no. 1
had written a letter No. DIA(A)misc./Adv./09 dated 25.01.2010 to defendant
no. 2 to consider his appointment on the terms and conditions specified at
Rs.1000/ per hearing, per day before ATFE w.e.f. 10/10/2009 till the vacant
posts of legal officers are filled up. It is further his case that the said order
CS No. 57226/16 Jagat Singh V. Union of India 3/33
contained the terms and conditions contrary to the terms and conditions laid
down by defendant no.3 in the letter dated 12.11.2009, so it was an arbitrary
and illegal order which was not addressed to him and rather was concealed
from him.
2.5 It is further his case that on 16.04.2010, defendant no.1 sent a
reminder to defendant no.2 vide letter F.No.DLA(A)/1Misc./Adv./09 dated
16.04.2010 confirming that defendant no.1 was hell bent upon to carry one
illegality after the other and this was contrary to the letter dated 01.10.2009
written by him to the defendant making his terms and conditions for further
giving his services to defendant to represent the department before the
ATFE.
2.6 It is further his case that on 10.05.2010, defendant no.2 asked
defendant no.1 vide letter F.No. 13/2/2009AdEd dated 10.05.2010 to
furnish the information that in case rate of Rs.1000/ per hearing per case
per day before ATFE is agreed to, what would be the remuneration in the
month of November, December, 2009, January 2010, February and March
2010.
2.7 It is further his case that in reply to the above letter, defendant
no.1 furnished the requisite information vide its letter
F.No.DLA(A)/1Misc./Adv./09 dated 15.06.2010 for consideration and
CS No. 57226/16 Jagat Singh V. Union of India 4/33
sanction:
Month No. Appeals/Revision Petitions, Fees
Conducted in ATFE
__________________________________________________________
November 2009 293 Rs.293,000/
December 2009 278 Rs.278,000/
January 2010 180 Rs.180,000/
February 2010 305 Rs.305,000/
March 2010 240 Rs.240,000/
1296 Rs.12,96,000/
2.8 It is further his case that he came to know that Mr. Jose Cyriae,
Addl. Secretary of defendant no. 2, wrote a memo to Special Director
directing him that effective hearing for which fees can be paid must last
between half an hour to one hour.
2.9 It is further his case that since nothing was heard from defendant
no.2, as such, on 04.08.2010 and 23.08.2010, he made representations to
defendant no.1, that in case, there is any doubt regarding the fees or other
bills claimed by the counsel, the matter may be referred to the Law Secretary
CS No. 57226/16 Jagat Singh V. Union of India 5/33
as mentioned in Memo dated 24.09.1999 issued by defendant no.3.
2.10 It is further his case that he was discriminated, as some of the
lawyers who were appearing on behalf of defendant No.1 before ATFE were
being paid much more than the rates prescribed by the Ministry of Law and
the details are as under:
Name of Lawyer Fees for Conference Fee
Clerkage per effective
hearing
1. Shri A.K. Panda (10%) Rs.10,000/ Rs.5,000/
2. Shri N.K. Matta (10%) Rs.10,000/ Rs.5,000/
3. Shri Venkatraman (10%) R.10,000/ Rs.5,000/
4. Shri S.K. Dholakia (10%) R.25,000/ Rs.5,000/
5. Ms. Sumita Kapil (10%) R.12,500/ Rs.3,000/
2.11 It is further his case that defendant No.1 had paid the fees to all
other lawyers well in time whereas the same has not been paid to him despite
his requests and reminders and as such, he was left with no alternative but to
file WP (C) 5810/10 praying to recommend his case to defendant No.3 as
required in office memorandum dated 24.09.1999.
2.12 It is further his case that on 08.09.2010, the office of defendant
CS No. 57226/16 Jagat Singh V. Union of India 6/33
no.3 informed him and defendant no.1 & 2, that defendant no.3 will hold a
meeting in his chamber to resolve the dispute and on 17.09.2010, the DLA
of defendant no.1 and one under Secretary from defendant no.2, along with
him, met defendant no.3 and he gave a representation to defendant no.3. It is
further his case that vide letter No. DLA (A)/1/Misc./Adv./09 dated
20.09.2010, defendant no.1 terminated his services.
2.13 It is further his case that on 22.09.2010, one DIG on deputation
with ED and DLA came on behalf of ED, while one Director along with
under Secretary appeared on behalf of defendant no.2 and defendant no.3
Law Secretary directed defendant No.1 and 2 to make payments as per rates
prescribed by the Ministry of Law in respect of their empanelled counsels.
2.14 It is further his case that subsequent to 22.09.2010, the senior
officers of the ED and Ministry of Finance talked to the Law Secretary and
the Law Secretary, without calling him and defendant no. 3, changed his
earlier order dated 22.09.2010 and discriminately issued another order dated
05.10.2010 which is not as per the Revised Scheme for engagement of
Senior Counsels in respect of Civil litigation in Delhi High Court, Tribunals
etc. in appeals/revision petitions/ review petitions.
2.15 It is further his case that on the basis of orders of Law Secretary,
he presented bill for 4845 hearings, defendant no.1 examined all the 4845
CS No. 57226/16 Jagat Singh V. Union of India 7/33
hearings from 10.10.2009 to 17.10.2010 and found that only 2224 hearings
were effective hearings. It is further his case that the department illegally
and arbitrarily disallowed 1900 hearing holding, "bench matters not justified
for payment". It is further his case that defendant no.1 further illegally held
721 hearings as Noneffective hearings and nothing was paid to him for
these hearings.
2.16 It is further his case that defendant no.1 made part payment of
Rs.6,96,000/ to him vide sanction order dated 26.05.2011, Rs.5,70,000/
vide sanction order dated 31.05.2011, Rs.9,57,000/ vide sanction order
dated 31.05.2011, totaling to Rs.22,23,000/ and thereby, the defendants
acknowledged their liability to pay the amount and alternatively, agreed for
renewal of limitation for filing the suit for remaining claim.
2.17 It is further his case that he sought copies of minutes and
subsequent correspondences from all the defendants and defendant no. 1 and
2 vide letter dated 11.02.2011 & 07.02.2011 declined to give the copy on the
ground that section 24 of the RTI grants safeguard to their department. It is
further his case that on 0710.06.2011, he met Law Secretary and apprised
him of everything, requesting him to review his order dated 05.10.2010 as
the same was not announced by him on 22.09.2010 before all the parties and
the Law Secretary had assured him that he would be calling the officers of
ED and Ministry of Revenue. It is his case that when he did not receive any
CS No. 57226/16 Jagat Singh V. Union of India 8/33
reply from Law Secretary/defendant no. 3 he called his office and he was
asked to send the copy of representation again and he issued reminder and
handed over the same on 20.04.2012. It is further his case that he neither
received any reply to his letter dated 0710.06.2011 nor the reminder dated
20.04.2012 and the order dated 05.10.2010 has not been recalled to rectify
the wrong.
2.18 It is further his case that he challenged orders dated 05.10.2010
bearing file no. 29(02)/2010 & F. No. DLA (A)/1/Misc/Adv/09 dated
25.01.2010 vide WP (C) No. 3252/2012 and on 25.05.2012 the Hon'ble High
Court of Delhi directed the defendant to produce file no No. 13/2/2009 AD
Ed and File No. DLA (A) Misc./Adv/09 and the matter was adjourned for
13.07.2012. It is further his case that on 13.07.2012 certain orders were
passed by the Hon. High Court and he preferred an LPA No. 566/2012
which was withdrawn by him on 14.08.2012 and thereafter he filed a review
petition bearing RA No.493/12 however the same was dismissed and a cost
of Rs.10,000/ was imposed upon him vide order dated 30.08.2012.
2.19 It is further his case that on 22.03.2013 CM No. 3267/2013,
seeking waiver of cost, was dismissed and he deposited the cost on
05.04.2013. It is his case that on 12.04.2013 defendants brought a cheque
for Rs. 2,86,000/ and on his request the matter was adjourned for
21.10.2013 on which date he withdrew the writ petition with liberty to
CS No. 57226/16 Jagat Singh V. Union of India 9/33
approach the civil court.
2.20 It is further his case that on 14.11.2013, a legal notice dated
12.11.2013 was sent by him, through advocate, to all the defendants which
was duly served upon them and defendant No.1 sent the reply dated
24.01.2014.
2.21 It is further his case that the conduct of all the defendants for
nonpayment of fees as per order dated 12.11.2009 is illegal, arbitrary,
unjustified and unsustainable under the law.
2.22 Hence the present suit.
Written Statement
3. Defendant took a preliminary objection that the suit is not
maintainable and the same is liable to be dismissed as the plaintiff has not
come to Court with clean hands and is guilty of suppressing the true facts. It
was pleaded that the present suit has been filed by the plaintiff with ulterior
motives and designs to cause harassment, hardship and financial losses to
defendant no.1 and for his illegal and unjustified objective/gains at the cost
of defendant no.1.
CS No. 57226/16 Jagat Singh V. Union of India 10/33
3.1 On merits it was pleaded that the plaintiff was engaged by the
Directorate on a monthly retainership of Rs.25,000/ p.m. w.e.f. 09.07.2009
for a period of three months for conducting appeals/revision petitions/
reviews petitions before the Appellate Tribunal for Foreign Exchange and
the said appointment of plaintiff was not extended, though he continued to
attend the cases of Defendant no.1.
3.2 It was further pleaded that on 01.09.2009 plaintiff requested for
raising of this amount and also asked to consider the terms & conditions of
the Central Government, as applicable to the advocate for conducting cases
before the High Court and Appellate Tribunal and considering the said
request, it was proposed to pay Rs.1000/ per hearing per case w.e.f.
01.10.2009 till the vacant posts of the Legal Officers are filled up.
3.3 It was further pleaded that the plaintiff had submitted a bill of
Rs.12,96,000/ on 28.05.2010 with details of cases and hearing attended by
him and till then, there was no dispute regarding the above mentioned
proposal. It was pleaded that in the meantime plaintiff filed a Writ Petition
on 30.08.2010 and the Hon'ble High Court while disposing of the said writ
petition ordered that the Law Secretary will treat the said Writ petition as
representation and decide the matter within six weeks.
3.4 It was further pleaded that another writ petition bearing WP (C)
CS No. 57226/16 Jagat Singh V. Union of India 11/33
3252/2012 was filed by the plaintiff before the Hon'ble High Court of Delhi
and he had confined his relief to payment of fee for ineffective hearing @
Rs.500/ per day per case subject to maximum of five hearings in respect of
appearance made before the Single Member of the Appellate Tribunal for
Foreign Exchange.
3.5 It was pleaded that the Hon'ble High Court directed the
Directorate to consider this request vide its order dated 13.07.2012 and
ordered to consider payment of fee for ineffective hearing @ Rs.500/ per
day per case subject to maximum of five hearings in respect of appearance
made before the Single Member of the Appellate Tribunal for Foreign
Exchange and accordingly, the Directorate calculated the amount of
Rs.3,19,000/ @ Rs. 500/ for 638 non effective hearings and after deduction
of TDS and educational cess, a cheque for Rs.2,86,143/ was handed over to
the plaintiff in open court which he had refused to accept.
3.6 It was further pleaded that the plaintiff challenged the said order
of the Hon'ble High Court by way of LPA No.626/12 which was dismissed
and after the dismissal of LPA, he filed a review petition which was also
dismissed with a cost of Rs.10,000/ on him. It was further pleaded that the
Hon. High Court also observed that this is a classic case of dishonest
pleadings and complete abuse of the process of law and subsequently the
writ petition was withdrawn by him.
CS No. 57226/16 Jagat Singh V. Union of India 12/33
Replication
4. In the replication plaintiff denied the averments of the written
statement while simultaneously reiterating and reaffirming the contents of
the plaint.
Issues
5. On the basis of pleadings of the parties, following issues were
framed by the Hon'ble High Court of Delhi vide proceedings dated
10.02.2015:
1. Whether the plaintiff is entitled to a decree of Rs.1,05,08,500/ and if
so, at what rate of interest? OPP
2. Relief.
5.1 Vide order dated 15.02.2016 the following issue was framed as
issue No.1A:
Whether the plaintiff is estopped from claiming the suit amount in view of
the orders dated July 13, 2012 and April 12, 2013 passed in W.P. (C) No.
3252/2012? (OPD)
CS No. 57226/16 Jagat Singh V. Union of India 13/33
Plaintiff's evidence
6. To prove his case, plaintiff examined himself as PW1, tendered
his evidence by way of affidavit Ex. PW1/A and relied upon the following
documents:
I. Plaint as Ex.PW1/1.
II. Copy of Order dated 30.07.2004 as Mark P1/2
III. Copy of Order dated 28.04.2005 as Mark P1/3
IV. Copy of Order dated 12.11.2009 as Mark P1/4
V. Copy of OM dated 24.09.2009 as Mark P1/5
VI. Copy of Letter dated 01.10.2009 as Mark P1/6
VII. Copy of Letter dated 25.01.2010 as Mark P1/7
VIII. Copy of Letter dated 16.04.2010 as Mark P1/8
IX. Copy of Letter dated 10.05.2010 as Mark P1/9
X. Copy of Letter dated 15.06.2010 as Mark P1/10
XI. Copy of Letter dated 04.08.2010 as Mark P1/11
XII. Letter dated 23.08.2010 as Ex.PW1/12.
XIII. Copy of Order dated 30.08.2010 as Mark P1/13
XIV. Letter dated 08.09.2010 as Ex.PW1/14.
XV. Letter dated 17.09.2010 as Ex.PW1/15.
XVI. Letter dated 20.09.2010 as Ex.PW1/16.
XVII Letter dated 05.10.2010 as Ex.PW1/17.
XVIII. Sanction order dated 26.05.2011 as Ex.PW1/18.
CS No. 57226/16 Jagat Singh V. Union of India 14/33
XIX Sanction order dated 31.05.2011 as Ex.PW1/19.
XX Sanction Order dated 31.05.2011 as Ex.PW1/20.
XXI Letter dated 07.06.2011 as Ex.PW1/21.
XXII Letter dated 20.04.2012 as Ex.PW1/22.
XXIII Order dated 25.05.2012 as Ex.PW1/23.
XXIV Order dated 13.07.2012 as Ex.PW1/24.
XXV Order dated 12.04.2013 as Ex.PW1/25.
XXVI Photocopy of cheque paid to Litigation Section as Mark P1/26.
XXVII Order dated 21.10.2013 as Ex.PW1/27.
XXVIII Notice dated 12.11.2013 as Ex.PW1/28.
XXIX Reply dated 24.01.2014 as Ex.PW1/29.
XXX Application under RTI Act dated 14.09.2015 as Ex. PW1/27
XXXI Envelope addressed to him as Ex. PW1/28
XXXII Letter dated 28.09.2015 as Ex. PW1/29
XXXIII Letter dated 10.05.2010 as Ex. PW1/30
XXXIV Legal notice dated 12.11.2013 as Ex. PW1/31
XXXV Letter dated 01.10.2009 as Ex. PW1/32
XXXVI Letter dated 12.11.2009 as Ex. PW1/33
XXXVII Letter dated 25.01.2010 as EX. PW1/34
XXXVIII Letter dated 16.04.2010 as Ex. PW1/35
XXXIX Letter dated 15.06.2010 as Ex. PW1/36
XL Letter dated 04.08.2010 as Ex. PW1/37
XLI Copy of order dated 30.08.2010 as Ex. PW1/38
CS No. 57226/16 Jagat Singh V. Union of India 15/33
XLII letter dated 05.10.2010 as Ex. PW1/39
XLIII Letter dated 07.06.2011 as Ex. PW1/40
XLIV Letter dated 20.04.2012 as Ex. PW1/41.
XLV Copy of order dated 25.05.2012 as Ex. PW1/42
XLVI Copy of order dated 13.07.2012 as Ex. PW1/43
XLVII Order dated 12.04.2013 as Ex. PW1/44
XLVIII Order dated 21.10.2013 as Ex. PW1/45
Defendant's evidence
7. Defendant examined Shri Niranjan Subudhi, Deputy Director,
Directorate of Enforcement as DW1, who tendered his evidence by way of
affidavit as Ex. DW1/1 and relied upon copy of order dated 15.02.2016
passed by Hon'ble High Court of Delhi as Ex.DW1/A.
Findings
8. I have heard the Ld. counsels for the parties, given due
consideration to the rival contentions raised at bar and have carefully gone
through the record. I have also considered the case laws relied upon by
plaintiff i.e. Daryao and ors Vs. State of UP and ors AIR 1961 SC 1457,
Sarguja Transport Service Vs. State Transport Appellate Tribunal 1987 1
CS No. 57226/16 Jagat Singh V. Union of India 16/33
SCC 5, IDPL VRS and retired Employees Federation Gurgaon Vs. The
Secretary, Government of India and ors 2010 Law Suit (Del) 2746, Alok
Gupta Vs Union of India and ors 2004 (3) SLR, Ammini Kutty and ors Vs.
George Abrahim AIR 1987 Ker 246, Harbhagwan and ors Vs. Smt. Punni
Devi and ors AIR 1999 PH 223, GN Nayak Vs. Goa University and ors
AIE 2002 SC 790 and Ajit Chopra Vs. Sadhu Ram and ors AIR 2000 SC
212 as well as Gulab Chand Chota Lal Parikh Vs. State of Gujarat AIR
1965 SC 1153 as relied upon by Ld. Counsel for the defendants.
8.1 As both the issues are interconnected they are taken up together
and my finding is as under:
Issue no. 1 : Whether the plaintiff is entitled to a decree of Rs.1,05,08,500/
and if so, at what rate of interest? OPP
Issue no. 1A : Whether the plaintiff is estopped from claiming the suit
amount in view of the orders dated July 13, 2012 and April 12, 2013 passed
in W.P. (C) No. 3252/2012? (OPD)
8.2 Plaintiff has sought recovery of Rs. 1,05,08,500/ however at the
outset it is to be noted that in the written arguments plaintiff has claimed that
the said amount has been inadvertently stated in the plaint, on account of
wrong/incorrect calculations and in fact the actual amount due is Rs.
1,23,12,000/. It is the plaintiff's case, in the written arguments, that an
CS No. 57226/16 Jagat Singh V. Union of India 17/33
amount of Rs. 1,45,35,000/ was due from the defendants towards 4845
dates/hearings @ Rs. 3000/ per case, per hearing per date, out of which Rs.
22,23,000/ was paid by the defendants and the balance amount to be paid is
Rs. 1,23,12,000/.
8.3 As far as this contention is concerned it has to be rejected
outrightly. No amendment of the plaint was sought to incorporate the exact
amount due i.e. Rs. 1,23,12,000/ as is now being claimed and therefore the
claim for the said amount cannot now be entertained. Once the trial was over
and in fact arguments heard plaintiff could not have, without amendment of
the plaint, made claim that he is entitled to Rs. 1,23,12,000/. This is not the
stage. Claim of Rs. 1,23,12,000/ cannot be entertained.
8.4 Coming back to the plaintiff's case for recovery of Rs.
1,05,08,500/, it is the admitted position that the plaintiff was engaged as a
retainer at the retainership fee of Rs. 25,000/ per month for a period of three
months w.e.f. 09.07.2009. Before the expiry of three months he wrote a
letter to the Director, Enforcement Directorate which is on record as Mark
P1/6 (also Ex. PW1/32). The relevant portion of said letter reads as under:
I may mention that my I am on Senior Panel of many of undertakings of Govt. of India
besides the Central Govt. itself.
In case after the expiry of this period of engagement, your goodself wants me to continue
in your engagement for conducting Appeals/Revisions/Petitions, Review Petitions before
the Appellate Tribunals for Foreign Exchange (ATFE), New Delhi or before any High
Court or Supreme Court, it should be on the terms and conditions of at least that of
Central Government.
CS No. 57226/16 Jagat Singh V. Union of India 18/33
8.5 On receipt of the above letter, one letter was written on
25.01.2010 to Ms. Priya V.K. Singh, Director Coordination, Ministry of
Finance, Department of Revenue which is on record as Mark P1/7 (also Ex.
PW1/34). The relevant portion of said letter reads as under:
Department of Revenue may please refer to their letter F. No. 13/2/2009AdED dated
09.07.2009 and this Directorate U.O. note of even no dated 27.01.2009 on the above
subject (copies enclosed for ready reference).
In this context, it is stated that Dr Gautam, Advocate, who was appointed alongwith Shri
Jagat Singh, Advocate, had left the Directorate due to meagre remuneration. However,
Shri Jagat Singh, Advocate is continuing to defend the Directorate. Shri Jagat Singh,
Advocate has stated that conducting of Appeals/Revision Petitions, Review Petitions
before the Appellate Tribunal for Foreign Exchange (ATFE), New Delhi, is a full time
job as he is devoting time from 11.00 AM to 4.00 PM on all working days. Hence Shri
Jagat Singh, Advocate is unable to attend to the other cases before other courts. A copy
of his representation dated 01.10.2009 is enclosed. In addition, Shri Jagat Singh, has
stated that he was empanelled as Senior Panel Counsel by the Department of Legal
Affairs, Ministry of Law and Justice vide order F. No. 24(1)/2009/Judl. dated 12.11.2009
(copy enclosed) and was entitled to draw a legal fee of Rs. 3,000/ per case per day of
effective hearing. However, the remuneration which he gets from the Directorate is Rs.
25,000/ per months.
The appointment of vacant posts of legal officers in the Directorate are not yet filled up.
It is therefore proposed to engage Shri Jagat Singh, Advocate for conducting Appeals/
Revisions Petitions, Review Petitions before the Appellate Tribunal for Foreign
Exchange (ATFE), High Court, New Delhi, at the rate of Rs. 1000/ per hearing per case
per day before the ATFE.
In view of the above, Ministry is requested to consider the appointment of Shri Jagat
Singh, Advocate on the terms and conditions i.e. Rs. 1000/ per hearing, per case, per
day before the ATFE w.e.f. 10.10.09 till the vacant posts of legal officers are filled up.
8.6 I have considered order dated 12.11.2009 which is on record as
Mark P1/4 (also Ex. PW1/33) as well as OM No. 24 (2)/99Judl dated
24.09.1999 which is on record as Mark P1/5. There is no dispute regarding
either of the documents. However it is to be seen that the plaintiff was a
CS No. 57226/16 Jagat Singh V. Union of India 19/33
retainer at the retainership fee of Rs. 25,000/ per month. For reasons best
known to him, the plaintiff has not placed on record letter dated 09.07.2009
bearing F. No. 13/2/2009ADED. The said document would have thrown
light upon the exact terms and conditions on which the plaintiff was engaged
as a retainer and the plaintiff cannot rely upon Mark P1/4 (also Ex. PW1/33)
or Mark P1/5 to claim the amount in question.
8.7 Mark P1/7 (also Ex. PW1/34) was a request/proposal to Ministry
of Finance, Department of Revenue to consider to engage the plaintiff as a
counsel for conducting appeals/revision petitions, review petitions before
the Appellate Tribunal for Foreign Exchange (ATFE), High Court, New
Delhi at the rate of Rs. 1000/ per hearing per case per day. This letter was
followed by letter dated 16.04.2010 which is on record as Mark P1/8 (Ex.
PW1/35).
8.8 Vide letter dated 10.05.2010 i.e. Mark P1/9 (also Ex. PW1/30)
the Under Secretary, Government of India had written to the Directorate of
Enforcement seeking the clarification which is reproduced hereunder:
In case, rate of Rs. 1000/ per hearing, per case, per day before ATFE is agreed
to, what would be the remuneration in the months of November, December, 2009,
January 2010, February, and March 2010.
8.9 The above letter was replied vide letter dated 15.06.2010 i.e.
Mark P1/10 (Ex. PW1/36), according to which the total amount payable to
CS No. 57226/16 Jagat Singh V. Union of India 20/33
the plaintiff for November 2009 till March 2010 was Rs. 12,96,000/ for
1296 hearings at the rate of Rs. 1000/ per hearing. It will be worthwhile to
mention that the said calculation was given on the basis of the professional
charges claimed by the plaintiff, that is to say that for the month of
November 2009 till March 2010 plaintiff had claimed total hearing as 1296
only. Plaintiff has not filed any other document, before this court, to prove
that there were any other/more hearings than 1296 for the said period.
8.10 Vide letter dated 04.08.2010 i.e Mark P1/11 (Ex. PW1/37), the
plaintiff gave a fresh representation, to the Directorate of Enforcement,
seeking payment of professional charges for appearing before ATFE. In the
said letter request was made, citing notification of Government of India, that
in case there is any dispute, doubt regarding the fee structure to be paid to its
panel advocates then the fee determined by the Secretary, Department of
Legal Affairs, Ministry of Law, Justice and Company Affairs shall be final
and binding.
8.11 This was followed up by letter dated 23.08.2010 i.e. Ex. PW1/12.
In the said letter the plaintiff had given monthwise break up of his
appearance in Appeals/Revision Petitions, Review Petitions on behalf of
Enforcement Directorate before ATFE and the number of hearings from
October 2009 till 20.08.2010 were shown as 2513. In the present case
plaintiff, as discussed above, is claiming the amount in question for 4845
CS No. 57226/16 Jagat Singh V. Union of India 21/33
hearings. In the plaint it is mentioned in para 18 that out of 4845 hearings,
defendant no. 1 after examining all the hearings from 10.10.2009 to
17.10.2010 found only 2224 hearings to be effective. It is further averred
that the department illegally and arbitrarily disallowed 1900 hearings
holding "Bench matters not justified for payment" and held 721 hearings as
non effective hearings and nothing was paid. Plaintiff has not placed on
record any document to corroborate the said statement/averment made in the
plaint. No document has been filed to prove that he had furnished bills for
4845 hearings or that they were scrutinized and some of the hearings were
held to be non effective and thus no payment was proposed to be made
against them. He has failed to bring on record any such order passed by the
defendants. He has also not placed on record the alleged bills in respect of
4845 hearings. In fact he has not placed on record any bill whatsoever which
might have been furnished by him to the defendants towards appearances
seeking recovery, reimbursement of the same. It was for the plaintiff to
prove that he had in fact appeared on 4845 dates for the defendant and was
therefore entitled to be reimbursed for those appearances/dates. Copy of the
proceedings/order/order sheets were not brought on record to prove that he
had indeed appeared on 4845 dates of hearing/occasions. Therefore no
question arises of the plaintiff being entitled to reimbursement towards those
4845 hearings. This is in addition to the fact that claim of 4845 hearings is
contrary and inconsistent with his own claims of 2513 hearings as made in
letter Ex. PW1/12, as discussed above. In fact Ex. PW1/12 shows the falsity
CS No. 57226/16 Jagat Singh V. Union of India 22/33
and the malafide of plaintiff's claim because having once claimed 2513
hearings he cannot subsequently claim that there were 4845 hearings, which
otherwise he has miserably failed to prove.
8.12 Mark P1/7 (also Ex. PW1/34) was only a request letter, at
most a proposal to the Ministry by the Directorate of Enforcement. It
was an internal document between the departments and it did not
create any contractual obligation upon the defendants to pay the
amount as was demanded by the plaintiff vide Mark P1/6 (also Ex.
PW1/32). Undoubtedly plaintiff continued to appear before ATFE after the
expiry of his retainership period, but merely because he so continued, it did
not create any contractual obligation whatsoever upon the defendants to pay
him the amount as demanded by him vide Mark P1/6 (also Ex. PW1/32),
Mark P1/11 and Ex. PW1/12. Defendants had never agreed to pay
remuneration at the rate of Rs. 3000/ per case per hearing per day to the
plaintiff.
8.13 After Ex. PW1/12 was written by the plaintiff and he failed to get
any response from the defendants, he preferred a writ petition bearing no.
WP (C) No. 5810/2010. Copy of said writ petition has not been filed on
record by the plaintiff, for the reasons best known to him, however he has
placed on record order dated 30.08.2010 i.e. Ex. PW1/13 (also Ex. PW1/38)
whereby the Hon'ble High Court of Delhi while disposing of the writ
CS No. 57226/16 Jagat Singh V. Union of India 23/33
petition gave the following directions:
2. The Petitioner who appears in person states that at this moment he would be satisfied
if a direction is issued to the effect that in terms of Office Memorandum (?OM?) dated
24th September 1999 issued by the Judicial Section, Department of Legal Affairs,
Ministry of Law, Justice and Company Affairs, Government of India. Para 5 of that OM
states that if any difference or doubt arises in respect of fee or other bills, the matter
should be referred to the Law Secretary of the Government of India whose decision shall
be final. From para 2 of the said OM it appears that the said instructions are applicable
in relation to the engagement of counsel not only in Delhi High Court but other
Tribunals as well.
3. Learned counsel appearing for the Government of India on advance notice states that
the concerned ministry in this case would be the Ministry of Finance. However, it would
be open to the Law Secretary to consult the Ministry of Finance as regards the doubts
concerning the settling of the Petitioner?s bills.
4. A direction is accordingly issued to the Secretary, Ministry of Law, to examine the
Petitioner?s grievance and, in consultation with any other concerned Ministry including
the Ministry of Finance, take a decision in the matter within a period of six weeks from
today. The Law Secretary will treat the present writ petition as a representation made to
him by the Petitioner and decide the matter accordingly. The Law Secretary will give the
Petitioner an opportunity of being heard on a date which may be communicated to the
Petitioner at least 10 days in advance. The decision of the Law Secretary be
communicated to the Petitioner within two weeks thereafter. No further directions are
called for.
5. The writ petition and the application are disposed of
8.14 In compliance of the above directions, it was communicated to
the plaintiff, vide letter dated 08.09.2010 i.e. Ex. PW1/14 that the Law
Secretary shall be holding a meeting with him, officers of Department of
Law & Justice and Department of Revenue & Enforcement Directorate on
17.09.2010. On 17.09.2010 plaintiff gave his representation i.e. Ex. PW1/15
to the Secretary, Ministry of Law, Justice and Company Affairs, reiterating
the representations made by him earlier vide Mark P1/6. It will be
worthwhile to point out that vide letter dated 20.09.2010 i.e. Ex. PW1/16
CS No. 57226/16 Jagat Singh V. Union of India 24/33
plaintiff's services to represent the Directorate of Enforcement before ATFE
were terminated with immediate effect. Therefore there is no question of the
plaintiff having represented the Directorate of Enforcement till 17.10.2010
and hence his claim of reimbursement towards any hearing after 20.09.2010
till 17.10.2010 cannot be entertained and is not maintainable.
8.15 On 05.10.2010 vide Ex. PW1/17 (also Ex. PW1/39) the
representation of the plaintiff, in terms of the directions of the Hon'ble High
Court, as discussed above, was disposed of. The relevant portion of the
order read as under:
5. The Department of Revenue and Enforcement Directorate contended that even after
the expiry of the retainership period, the services of Sh. Jagat Singh were availed up to
19.09.2010 and his services has been terminated w.e.f. 20.09.2010. During period of
availing his services from 10.10.2009 to 19.09.2010 for conducting cases before ATFE,
no agreed terms and conditions were there. However, for the above period instead of
monthly retainer, the Enforcement Directorate proposed a fee of Rs. 1000/ per case per
day to Sh. Jagat Singh and a proposal to this effect was sent to D/o Revenue. Since
administrative approval for the said proposal was awaited, no communication regarding
terms and conditions for the said period was communicated to Sh. Jagat Singh. It was
vehemently contended by D/o Revenue that since Sh. Jagat Singh was conducting their
cases on monthly retainer basis, he may be allowed monthly retainer for the remaining
period also. It was their contention that retainership fee of Rs. 40,000/ p.m. would be
justified keeping in view the amount of earlier retainershhip fee which was Rs. 25,000/
p.m.
Decision
(I) I have heard both the parties and perused the relevant papers. I am of the view
that the services of Sh. Jagat Singh were availed by Enforcement Directorate even after
the expiry of retainership period without getting approval of the terms and conditions of
his engagement. Sh. Jagat Singh submitted a letter dated 01.10.2009 to the Enforcement
Directorate for payment as prescribed by Ministry of Law. The terms and conditions
prescribed by this Ministry are applicable to the counsel borne on the panels of this
Ministry and who are engaged by adopting the procedure mentioned therein. In this
case, the Enforcement Directorate continued to engage Sh. Jagat Singh to conduct their
CS No. 57226/16 Jagat Singh V. Union of India 25/33
cases and at no stage this Ministry was consulted in the matter. Even for engagement of
counsels from the panels to conduct cases, there is a prescribed procedure to be adopted
by the Department and the counsel. The counsel borne on the panels of this Ministry also
cannot appear without the approval of Litigation Section of this Department which
nominates counsel for various Tribunals situated at Delhi. Although there is a
procedural irregularity on the part of the Enforcement Directorate, the advocate
engaged by them is required to be reasonably compensated for the services rendered by
him.
(ii) Keeping in view the facts and circumstances explained to me, I am of the view
that Shri Jagat Singh may be allowed Rs. 1000/ per day per case for each effective
hearing as the same was also proposed by the Enforcement Directorate to Department of
Revenue and Sh. Jagat Singh was also agreeable for the same at one point of time. I
order accordingly.
8.16 Hence it was decided that the plaintiff be reimbursed at the rate
of Rs. 1000/ per day per case for each effective hearing. It is writ large
from the above orders that because the services of the plaintiff were availed,
he was "required to be reasonably compensated for the services rendered by
him". Hence without any contractual obligation, agreed terms and condition,
the amount was agreed to be paid at the above rate to compensate the
plaintiff for his services. The order also reemphasized the fact that his
services were availed without getting the approval of the terms and
conditions of his engagement. The approval of the Ministry was not sought
and the order also makes it amply clear that the panel advocates cannot
appear without the approval of the litigation section and thus there was
procedural irregularity. Moreover it is the plaintiff's own case that the
decision of the Secretary was final in this regard.
8.17 Thereafter vide three sanction letters dated 26.05.2011 i.e. Ex.
CS No. 57226/16 Jagat Singh V. Union of India 26/33
PW1/18, 31.05.2011 i.e. Ex. PW1/19 and 31.05.2011 i.e. Ex. PW1/20,
amounts of Rs. 6,96,000/, Rs. 9,57,000/ and Rs. 5,70,000/ totaling to Rs.
22,23,000/ was sanctioned. The amount was duly received by the plaintiff.
There is nothing on record to suggest that the plaintiff had objected to at the
time when the said amount was decided to be released and sanctioned to the
plaintiff. Similarly there is nothing on record to suggest that plaintiff had
protested or raised any objection at the time of acceptance of the above
amount. During the cross examination the plaintiff stated as under:
........I was asked to raise the bills as per the directions of the Law Secretary and
I excepted the same under protest that I shall be open to claim the rates prescribed by
the Ministry of Law........It is correct that I raised the bill as per the directions of the Law
Secretary but I received the same under protest. Under protest was written on the file of
the Enforcement Directorate where the bill was received.
8.18 Plaintiff did not file any such record to prove that the payment
vide Ex. PW1/18 to Ex. PW1/20 was accepted by him under protest. It has
already been discussed above that vide Ex. PW1/12 he had furnished the
bills of around 2513 hearings only. Hence he was made the payment as per
the directions of the Law Secretary vide Ex. PW1/13 for the bills raised by
him after making necessary deductions. However still the plaintiff was not
satisfied with the above reimbursement/amount and gave a representation to
the Ministry of Law, Justice and Company Affairs on 07.06.2011 which is
on record as Ex. PW1/21 (also Ex. PW1/40). In the said representation it
was claimed by him that he had given bills for appearances in 4845
Appeals/Revisions/Reviews before ATFE. The date when the bills were
CS No. 57226/16 Jagat Singh V. Union of India 27/33
given was not mentioned and as discussed above in the present suit also no
details of the bills, copy of the bills, order sheets showing his appearances
have been proved by the plaintiff.
8.19 The representation was followed up by letter dated 20.04.2012
i.e. Ex. PW1/22 (also Ex. PW1/41). Thereafter plaintiff preferred a writ
petition before the Hon. High Court of Delhi bearing WP (C) No. 3252/12.
Again copy of the said writ petition has also not been filed by the plaintiff.
In the said writ petition the following orders i.e. Ex. PW1/24 (also Ex.
PW1/43) were passed by the Hon'ble High Court of Delhi on 13.07.2012:
"The files as directed by the court on 25.05.2012 have been brought to court.
There is undoubtedly a noting of 22.09.2010 wherein there is a mention of the fact
that the Law Secretary had indicated that the petitioner be paid fee as payable to
the Central Government Advocates on senior panel. It may be noted prior to this
meeting, the petitioner had approached this court by way of a writ petition. The
said writ petition was disposed of; wherein observations were made by my
predecessor that ordinarily writ petition did not lie because it was a case of
recovery of fee. However, the court having regard to the submissions of the
petitioner that he would make a representation to the Law Secretary, Government
of India; that such representation if made would be disposed of by the Law
Secretary. It appears that the aforementioned meeting was held perhaps in this
background.
Pursuant to the meeting of 22.09.2010, the representation of the petitioner was
disposed of by the Law Secretary vide order dated 05.10.2010. In the said order
briefly, the Law Secretary has taken into account the petitioners? contention as
regards the applicability of the circular dated 22.09.1999 (in short Circular). The
Law Secretary, it appears, has come to the conclusion that the circular is not
applicable to the petitioner as the rate of fee sought for by the petitioner of
Rs.3,000/ per day per case would get triggered vis?vis Tribunals such as
Appellate Tribunal for Foreign Exchange, if and only if, the engagement had been
by the Litigation Department and/or the Ministry of Law. Undoubtedly, there was
CS No. 57226/16 Jagat Singh V. Union of India 28/33
no such engagement by the Litigation Department and/or the Ministry of Law.
However, keeping in mind the fact that the petitioner had rendered the services,
the Law Secretary directed that he should be paid at the rate of Rs.1,000/ per
day per case for effective hearing.
The respondents have brought to my notice, the fact that, the petitioner appears to
have accepted this order as he has submitted bills in accordance with the said order and received a sum of Rs.22,23,000/. The learned counsels submitted that this fact has not been disclosed in the writ petition and that the writ petition ought to be dismissed on this short ground alone.
Having considered the matter, I put to learned counsel for respondents that if the circular was not applicable to the petitioner then even the rate of Rs.1,000/ per day per case has no basis. The fact that the petitioner has been paid at the rate as indicated in the order of the Law Secretary only for effective hearings, the department could consider paying the petitioner even for ineffective hearings as that parameter which finds mention in the said circular. The rate indicated in the said circular for ineffective hearing is Rs.500/ per day per case. This of course is subject to maximum of five (5) hearings in each case.
The petitioner before me today has made a categorical statement that he is confining his relief to payment of fee for in effective hearing at the rate of Rs.500/ per day per case subject to a maximum of five (5) hearings in respect of appearance made before a Single Member of the Appellate Tribunal for Foreign Exchange. The respondents shall consider this request of the petitioner at the earliest.
List on 16.08.2012."
8.20 The matter was adjourned for 16.08.2012 however copy of order dated 16.08.2012 is not on record, has not been filed by either of the side. Nonetheless plaintiff has placed on record copy of order dated 12.04.2013 i.e. Ex. PW1/25 (also Ex. PW1/44). Proceedings of even date revealed that the plaintiff did not accept the payment i.e. cheque of Rs. 2,86,000/ as was brought by the defendant and sought an adjournment for 21.10.2013. On 21.10.2013 the plaintiff withdrew the writ petition bearing no. 3252/2012 CS No. 57226/16 Jagat Singh V. Union of India 29/33 with liberty to approach the civil court for ventilation of all his grievances. The said order is on record as Ex. PW1/27 (also Ex. PW1/45).
8.21 Thereafter legal notice dated 12.11.2013 Ex. PW1/31 was got issued by him which was duly replied on 24.01.2014 vide Ex. PW1/29.
8.22 Therefore though the plaintiff had written letter Mark P1/6 (also Ex. PW1/32) to the Director, Enforcement Directorate however there is nothing on record to suggest that the Enforcement Directorate had acceded to his request and had agreed to pay him the amount he was claiming. It becomes evident from order dated 05.10.2010 i.e. Ex. PW1/17 (also Ex. PW1/39) that the proposal/request of the Directorate of Enforcement i.e. Mark P1/7 (also Ex. PW1/34) could not get the administrative approval and no communication regarding any terms and condition was communicated to the plaintiff. The fact that it remained a proposal itself disentitles the plaintiff to claim the amount at the rate of Rs. 3000/ per case per hearing per day. Things would have been different had this proposal been accepted and the acceptance communicated to the plaintiff. The proposal otherwise does not give a right to the plaintiff to claim the amount at the rate of Rs. 3000/ per case per hearing per day because the amount proposed was only Rs. 1000/ and not Rs. 3000/. In fact the Law Secretary was considerate enough to reimburse the plaintiff at the rate of Rs. 1000/ per case per hearing per day despite there being no contractual obligation. In fact the CS No. 57226/16 Jagat Singh V. Union of India 30/33 Hon'ble High Court of Delhi had also observed in order dated 13.07.2012, as discussed above, that if the circular was not applicable to the plaintiff then even the Rs. 1000/ per day per case had no basis. Nonetheless the Hon'ble High Court considering the fact that the plaintiff has been paid at the rate as indicated in the order of Law Secretary for effective hearings observed that the department could consider paying the plaintiff even for ineffective hearing as per the parameter in the circular i.e. at the rate of Rs. 500/ per day per case subject ofcourse to a maximum of 5 hearings in each case. The Hon'ble High Court went on to observe "The petitioner before me today has made a categorical statement that he is confining his relief to payment of fee for in effective hearing at the rate of Rs.500/ per day per case subject to a maximum of five (5) hearings in respect of appearance made before a Single Member of the Appellate Tribunal for Foreign Exchange. The respondents shall consider this request of the petitioner at the earliest", and though, as discussed above, the amount was brought by the department as directed by the Hon'ble High Court but the plaintiff did not accept the same. Instead the plaintiff had preferred CM No. 10987/2012 which was disposed of on 30.08.2012 while observing as under: This is a classic case of dishonest pleadings. The order of which review is sought by the petitioner, who appears in person, was dictated in Court. The concession which is recorded in last paragraph of the order of which review is sought was made in my presence. This is a complete abuse of process of law. Dismissed with costs of Rs 10,000/ to be paid to the respondent.
8.23 Plaintiff has deliberately not filed the above orders which is
CS No. 57226/16 Jagat Singh V. Union of India 31/33
reflective of his conduct. In fact the plaintiff's conduct is writ large from the proceedings and particularly order dated 20.08.2018 by this court.
8.24 Therefore plaintiff has miserably failed to prove that he is entitled to the amount as claimed for. However considering the fact that the Hon'ble High Court of Delhi was considerate enough to direct the department to pay the plaintiff towards ineffective hearing @ Rs. 500/ per case per day and the department had complied with the same and brought a sum of Rs. 2,86,000/ and therefore the department was willing to pay the said amount to the plaintiff, I hold the plaintiff to be entitled to the said amount. No question of resjudicata or estoppel arises as the writ was not decided/disposed off on merits and the plaintiff was given liberty to ventilate his grievances.
8.25 In view of the above discussion, issue no. 1 is decided in favour of the plaintiff to the extent that he is entitled to a sum of Rs. 2,86,000/ and not Rs. 1,05,08,500/. As far as interest is concerned though it was the plaintiff who had refused to accept the said amount, as discussed above and the defendants cannot be faulted with, however considering the entire facts and circumstances a nominal pendentlite and future interest @ 4% per annum is awarded to the plaintiff till the realization of the decreetal amount. Issue no. 1A is decided against the defendants.
Relief
CS No. 57226/16 Jagat Singh V. Union of India 32/33
9. Plaintiff is thus entitled to an amount of Rs. 2,86,000/. Plaintiff is also entitled to pendentlite and future interest @ 4% per annum on the said amount till the date of its realization. I order accordingly.
10. Decree sheet be prepared accordingly.
11. File be consigned to record room after necessary compliance.
Announced in the open court (Gaurav Rao)
on 30th October 2018 ADJ02 & Waqf Tribunal /
New Delhi District,
Patiala House Courts, Delhi.
CS No. 57226/16 Jagat Singh V. Union of India 33/33