Delhi District Court
Sh. S. Banerjee vs India International Centre on 27 November, 2012
1
IN THE COURT OF SHRI MAN MOHAN SHARMA
ADDITIONAL DISTRICT JUDGE (CENTRAL) 01
TIS HAZARI COURTS, DELHI.
C.S. No: 88/2011
Unique case ID no. : 02401C0186022003
Sh. S. Banerjee
S/o Late Sh. D. N. Banerjee,
R/o P72, Chittranjan Park (2nd Floor),
New Delhi110019,
(Dy. Accounts Officer, India International
Centre, 40, Max Muellar Road, New Delhi110003).
..........Plaintiff
Versus
1. India International Centre
(Registered under Societies Registration Act (XXI)1860),
through its Director,
40, Max Muellar Road,
New Delhi110003.
2. Mr. N. H. Vohra
Director,
India International Centre,
40, Max Muellar Road,
New Delhi110003.
3. The Secretary
India International Centre,
C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 1 of 60
2
40, Max Muellar Road,
New Delhi110003.
.........Defendants
Date of institution : 15.12.1999
Date of reserving judgment : 30.10.2012
Date of pronouncement : 27.11.2012
JUDGMENT
1. In this case of vintage 1999 the plaintiff has propounded his cause of action on the following bundle of facts: Pleadings
(i). Status of Plaintiff: The plaintiff had been employed with the defendant, India International Centre, for the last more than 26 years. After being promoted, the plaintiff worked as Deputy Accounts officer for the last about 20 years. The plaintiff served without any blemish.
(ii). Suspension order cum Memorandum
However, due to
some internal politics in the centre, the plaintiff has become the victim of the wrath of his superiors. Vide order dated June 19, 1999, the defendant no.3, the Secretary of the Centre, informed the plaintiff that he had been suspended with immediate effect. Along with the order, a Memorandum dated June, 19, 1999 had also been C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 2 of 60 3 issued to the plaintiff by the defendant no.3, charging him with the most serious offence of misrepresenting the position in the centre, acting in a prejudicial manner and bringing the centre into the disrepute. It has also been mentioned in the said Memorandum that the activities involved criminal offences interalia of fraud, smuggling and Visa trafficking and that it raised serious doubts about his integrity which warranted the imposition of major penalty of dismissal from service. Accordingly, the plaintiff has been asked to submit his explanation by 14.00 hours on 21.06.1999.
(iii). Reply by Plaintiff: The plaintiff, through his counsel, Sh. Ravindra Solanki, Advocate, submitted the reply to the said show cause notice i.e. the said memorandum dated June 19, 1999, requesting interalia that the should be granted one week's time to give the detailed reply, and vide letter dated June 22, 1999, same was granted. Further vide letter dated June 28, 1999, the plaintiff requested the defendant no. 3 that he did not want to give any further reply.
(iv). Inquiry Initiated: The defendant no. 2 being unsatisfied with the Plaintiff's reply dated June 21, 1999 and June 29, 1999, informed vide the Memorandum dated July 27, 1999, that an inquiry is proposed to be held in respect of the charges set out in C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 3 of 60 4 the enclosed chargesheet dated July 27, 1999. Accordingly, he had been asked to submit reply within one week. Vide letter dated August 4, 1999, the plaintiff submitted his detailed reply to the Memorandum dated 27.07.1999, issued along with chargesheet dated July 27, 1999, wherein he denied all the charges levelled against him. Vide letter dated August 30, 1999, the plaintiff requested to the defendant no. 2 that the alleged inquiry based on Memorandum dated 27 July, 1999 being based on raked and baseless allegations may be concluded at the earliest, revoking/cancelling his suspension order.
(v). Proceedings of Inquiry:
(a). Vide orders dated 1st September, 1999, the defendant no.
2 appointed Sh. J. K. Mehra (Retired Judge of the Hon'ble High Court of Delhi), as Enquiry Officer to conduct the inquiry against the plaintiff into the charges contended in charge sheet dated July 27, 1999.
(b). Vide letter dated September 10, 1999, the Enquiry Officer informed the plaintiff that the first hearing of the inquiry will be held at 11.00 a.m. on September 25, 1999, at the Committee Room of the centre.
(c). Vide letter dated September 25, 1999, the Plaintiff C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 4 of 60 5 requested the Enquiry Office to direct the Management to supply the copies of all the documents on which the allegations levelled against him are based. He also requested interalia that the Management be called upon to submit the list of witnesses and supply to him a copy of the preliminary enquiry report, if any, conducted by the Management. The request was accepted and the inquiry has been adjourned for October 4, 1999 at 4.30 p.m.
(d). On October, 4, 1999, the plaintiff moved an application requesting, interalia, to the Enquiry Officer that the Management be directed to pay him subsistence allowance equivalent to his full salary last drawn by him and further grant him Rs.10,000/ as loan so as to enable him to meet the legal expenses and to pay for appearance/day to day legal advice, whereupon the EO directed the Presenting Officer, Mr. A.C. Katoch to file the reply to the said application of the plaintiff.
(e). Vide letter dated October 7, 1999, Mr. A. C. Katoch, the Presenting Officer, submitted the suspension allowance is being paid to plaintiff according to byelaws and there is no provisions for grant of loan for meeting the legal expenses. C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 5 of 60 6 Accordingly, the enquiry has been adjourned for 9th October, 1999 for recording the evidence after hearing both the parties to some extent. (f). Due to some religious emergency, the plaintiff could not attend the inquiry on October, 9, 1999, for which he has already informed the Enquiry Officer through courier dated 08.10.1999 which in fact was received by Enquiry Officer on October 11, 1999. However, in the absence of the plaintiff, the evidence/statement on behalf of the Management had been recorded viz. Mr. Marcos Rodriques Cantero as MW1 and Mr. J. A. Alonso as MW2. The enquiry has been adjourned to October, 16, 1999 at 11.00 a.m. which date was duly informed to the plaintiff vide letter dated October, 9, 1999 issued by Mr. A. C. Katoch, Administrative Officer.
(g). Vide letter dated October 11, 1999 the plaintiff requested the Enquiry Officer that he may be allowed to be represented by an Advocate and/or by a person who knows Industrial Laws from outside the centre.
(h). Vide order dated October 16, 1999, the Enquiry Officer allowed the plaintiff's request to grant him an opportunity to crossexamine the management's witnesses, C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 6 of 60 7 refusing him to be represented by an Advocate but only through a coemployee of the Centre and adjourned the inquiry for October 23, 1999.
(i). On October 23, 1999, the plaintiff cross examined MW2, Mr. J.A. Alonso, and on November 1, 1999, he cross examined MW1, Mr. Marcos Rdrigues Cantero. (j).
Thereafter, the inquiry has been adjourned for 5th November, 19999 at 11.00 A.M. for recording the evidence of the plaintiff, which has further been adjourned for November 10, 1999. On 10th November, 1999, the statement of the plaintiff has been recorded and he has been crossexamined by the Presenting Officer. After that the inquiry has been closed keeping the report reserved.
(k). Vide order dated November 12, 1999, the plaintiff moved an application for making some corrections of typing errors in his statement dated November 10, 1999.
(l). On November 20, 1999, the ld. E.O. made his report into the said inquiry proceedings.
(vi). Show cause for imposition of penalty: Vide letter dated 30.11.1999, the defendant no. 2 issued a show cause notice to the plaintiff as to why the proposed action for the penalty of dismissal C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 7 of 60 8 from the service should not be taken against him in view and in respect of the charges contended in the chargesheet dated July 27, 1999 and the report dated November 20, 1999 passed by the ld. E.O., giving him three days' time. Vide letter dated 02.12.1999 the plaintiff requested the defendant no. 2 to grant him 10 days time to submit his reply to the said show cause notice dated November 30, 1999 which, in fact, has been granted to him only up to 06.12.1999 and, accordingly, he on December 6, 1999, submitted his reply to the said show cause notice dated November 30, 1999 through his counsel Sh. M. L. Srivasta & Co. The said reply dated December 6, 1999, has been duly submitted by him to the defendants nos. 1, 2 and 3 by the hand and to all the other members of the Executive Committee of the Centre, by Regd. A.D. cover. That said Executive Committee consisted of
1. Dr. Kapila Vatsyayan, President of the Centre;
2. Mr. Soli J. Sorabjee, Vice President of the Centre;
3. Mr. H. N. Vohra, Director of the Centre, Defendant no.2;
4. Mr. M. P. Wadhawan, Hony Treasurer;
5. Mr. A.M. Khusro, Member E.C.;
6. Mr. R. D. Pradhan, Member E.C.;
7. Mr. P. L. Malhotra, Member E.C.;
8. Mr. V. A. Pai Panandikar; Member E.C.;
9. Mr. M. A. Hakeem, Member E.C.;
10.Dr. R. K. Pachauri, Member E.C.;
C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 8 of 60 9
11.Mr. N. N. Ramachandran, Secretary, Defendant no.3.
(vii). Subsequent Facts:
(a). During the pendency of the suit, the plaintiff's counsel, at about 3.00 p.m. on 20.12.1999, received the reply dated 16.12.1999 to the said show cause notice dated 30.11.1999 wherefrom it has been revealed that vide resolution dated 02.03.1983, the Board of Trustees had specified the financial powers of the Director and other officers and had designated/delegated the Director with the power of appointing authority in respect of all posts other than that of Manager. The copy of the said resolution dated 02.03.1983 has been given to the plaintiff's counsel only along with the written statement dated 20.01.2000, and not along with the reply dated 16.12.1999. The said resolution dated 02.03.1983 is illegal, void and inoperative against the plaintiff. It is violative of the plaintiff's fundamental rights in as much as firstly the same could hardly be applied to the plaintiff who has been appointed much prior to the said resolution, as Asstt. Accounts Officer in the scale of Rs.
70040900 w.e.f. 01.11.1978 vide memorandum no. IIC/F/2(14)/7178 dated 04.11.1978 by the Board of Trustees C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 9 of 60 10 or by the Executive Committee and not by the Director of the Centre and thereafter promoted as Dy. Accounts Officer by the same authorities and not by the Director about 10 years before and secondly for the fact that as per the bye laws and the rules no such power can be given/delegated either prospectively and/or retrospectively to the Director by the Board of Trustees or by any other body and thirdly for the reason that the said Resolution changes the basic features/structures of the memorandum of Association without following the provisions of the Societies Registration Act, 1860.
(b). During the pendency of the suit, rather on 24.12.1999 i.e. on the day of admission of the suit/amendedsuit the defendants counsel submitted before the Hon'ble Court the copy of order dated 14.12.1999 by virtue of the same plaintiff has been dismissed from the services of the centre w.e.f. 14.12.1999. The said order dated 14.12.1999 has been issued by the director and has been served upon the plaintiff's counsel only at bout 3.00 p.m. on 24.12.1999 as per the courts directions dated 24.12.1999. The said order dated 14.12.1999 is illegal, void and inoperative; not binding C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 10 of 60 11 on him and violative of the fundamental rights for the following reasons.
• Same has not been issued by the appointing authority, and • Same has been issued against the observations of the Hon'ble Supreme Court in the cases of A.L. Kalra Vs. The P.E.C. (AIR 1984 SC 1361) and Glaxo Laboratories (I) Ltd. Vs. Presiding Officer, Labour Court, Merrut (AIR 1984 SC 505).
(ix). Why the suit? No appeal lies under the byelaws or the rules against the said illegal termination order and, hence, the present suit.
(x). Rules Applicable: The plaintiff is governed by the 'India International Centre Office Employees (Service conditions) Bye laws' (hereinafter referred to as the Byelaws).
(xi). Plaintiff's reference to the applicable Rules:
(a). According to the second schedule of the byelaws, the appointing authority of the plaintiff is the executive committee of the Centre, which is duly defined in clause 13 of the memorandum of Association and rules & regulations (in short 'the Rules') and consists of the President, the Vice President and 9 other members C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 11 of 60 12 i.e. total 11 person. Clause 13 of the Rules is reproduced herein below:.
"13. Executive Committee
(a) The executive committee shall consist of the President and Vice President and 9 members and shall be constituted as follows: (iiii) The Director, the Secretary and the Treasurer of the Centre;
(ivv) Two members to be nominated by the Board of Trustees;
(b) The Executive committee shall have power to coopt a member in any vacancy to be filled by election for the residue of the terms of the out going member is such vacancy arises in the second year.
(c) The strength of the executive committee may be increased by the Board of Trustees, on the advice of the executive committee in accordance with the following procedure:
(i) By appointing JointSecretary (Or joint Secretaries) to the Board who will be member(s) of the Executive Committee exofficio or
(ii) By adding 3 members at a time, one of whom will be nominated by the Board one elected by individual members with voting rights and one elected by institutional members with voting rights.
(d) The Director and Secretary of the Centre shall respectively be exofficio Chairman and Secretary of the Executive Committee.
Provided that the President, when he attends a meeting of the Executive Committee, takes the chair C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 12 of 60 13 in the absence of the President, the Vice President when he attends a meeting of the Executive Committee, shall take the chair."
(b). In the Byelaws clause 42 defines conduct in General, clause 43 defines terms suspension, clause 44 defines Penalties, clause 45 defines authority competent to impose penalty, and clause 46 defines procedure for imposing penalties, but no clause therein defines the terms Misconduct clauses 42, 43, 44, 45 and 46 of the Byelaws are reproduced here in below:
"42. GENERAL:
1. Every employee shall at all times maintain absolute integrity and devotion to duty.
2. Every employee shall abide by and comply with the rules and byelaws of the centre and all orders and directions of his/her superior authorities.
3. Every employee shall extend the atmost courtesy and attention to all persons with whom he/she has to deal in the course of his/her duties in the centre.
4. Every employee shall endeavour to promote the interests of the centre and shall not act in any manner prejudicial thereto.
43. SUSPENSION:
1. The appointing authority or any other authority superior thereto may place an employee under suspension:
a) Where a disciplinary proceeding against C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 13 of 60 14 him/her are contemplated or are pending; or b) Where a case against him/her in respect of any
criminal offence is under investigation or trial.
2. An employee who is detained in custody or criminal charge or otherwise, for a period exceeding fortyeight hours shall be deemed to have been suspended with effect from the date of his /her detention, by an order of the Appointing Authority and shall remain under suspension until further orders.
3. An order of suspension made or deemed to have been made under this byelaw may at any time be revoked by the authority whihc made or is deemed to have made it or by any superior authority.
44. PENALTIES: The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on an employee:
i) Censure;
ii) Withholding of increments or promotion;
iii) Recovery fro pay of the whole or part of any pecuniary loss caused to the centre by negligence or breach of the rules or byelaws or directions of superior authorities;
iv) Reduction to a lower grade or post or to a lower stage in a time scale;
v) Compulsory retirement;
vi) Discharge from service; and
vii) Dismissal from service.
45 AUTHORITY COMPETENT TO IMPOSE
PENALTY :
C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 14 of 60
15
The appointing authority may impose on an employee any of the penalties specified in byelaw 44.
46. PROCEDURE FOR IMPOSING PENALTITES:
No order imposing any penalty on an employee shall be passed, except after
a) The employee is informed in writing of the proposal to take action against him/her and of the allegations on the basis of which it is proposed to be taken and is given an opportunity to make a representation he/she may wish to make; and
b) Such representation, if any, is taken into consideration by the authority imposing the penalty."
(xii). Plaintiff alleging the violation of Rules:
(a). As per clause 43 of the Byelaws, the order dated 19.06.1999, suspending of the plaintiff w.e.f 19.06.1999, is quite illegal, arbitrary & malafide in as much as it has not been passed by the appointing authority (The executive committee) or any other authority superior thereto.
(b). The memorandum/chargesheet dated 27.07.1999 issued by the defendant no. 2, after considering plaintiff's representation to the memorandum dated 19.06.1999, is quite illegal, arbitrary and malafide, in as much as the same could have only been issued by the appointing authority (The executive committee), as per clause 46 read with clause 45 C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 15 of 60 16 of the Byelaws; that neither such an authority could be delegated to the defendant no. 2 and/or 3 by the appointing authority (i.e. the executive committee) and nor such authority has been delegated to them otherwise.
(c). As per the clause 46 read with clause 45 of the byelaws, the appointment of Sh. J. K. Mehra (Retd. Judge of the High Court of Delhi) as the Enquiry Officer to conduct enquiry against the plaintiff into the charges as contained in the chargedated July 27, 1999, is quite illegal, malafide, arbitrary coupled with some ulterior motives to malign the dignity and reputation of the plaintiff through colourable exercise of the executive power vested in the defendant no. 2, which is clearly against his fundamental rights as guaranteed to him under Articles 14, 16, 19, 21, 38, 39 & 41 of the Constitution of India.
(d). According to the provisions of byelaw of the Centre, the show cause notice 30.11.1999 and the Enquiry report dated 20.11.1999, passed the Enquiry Officer, are quite illegal, malafide, arbitrary and violative of the plaintiff's abovementioned fundamental rights.
(e). According to Para 10 of the Chargesheet dated C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 16 of 60 17 27.07.1999, the following charges have been levelled against the plaintiff.
• Sh. S. Banerjee, while in service of IIC as Dy.
Accounts Officer, has been holding out and misrepresenting to be the Accounts Officer with a view to secure information and Visas for applicants with dubious documents and otherwise ineligible. • Sh. S. Banerjee has been utilising IIC envelopes/stationery for submitting application with the objective of obtaining Visas for certain applicants. • Sh. S. Banerjee in pursuit of unauthorised objectives has been visiting the Embassy of Spain with one Sh. N. Roy and by misrepresenting and exploiting his position in the IIC tried to be friendly with the Embassy official, offering him gifts and inducements. • On 15.06.1999, Sh. S. Banerjee's associate, Sh. N. C. Roy, visited the Embassy and left at the consular section three Visa applications in an IIC envelope and also a closed brown IIC envelope containing Rs.
75,000/
• On Thursday, the 16th June, 1999, Sh. S.
Banerjee visited the Embassy to inquire about the said Visa applications and the First Secretary of the Embassy called him and returned to him the applications together with the envelope containing the money alongwith a letter of 16.06.1999 pointing out to Sh. S. Banerjeet about his wrongful act of misusing the name of IIC and offering inducement.
• Sh. S. Banerjee has grossly misconducted himself by misrepresenting his position in IIC and C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 17 of 60 18 acting tin a prejudicial manner which has brought the centre into disrepute."
For the charges levelled against the plaintiff vide subparas
(a) to (f) of para 10 of the chargesheet dated July 27, 1999, he could hardly be convictedpenalised either under the provisions of clause 41 of the byelaws or otherwise, as per the ratio/directions of the Hon'ble Supreme Court of India in the judgment of A.L. Kalra vs. The Project and Equipment Corporation of India Ltd. (AIR 1984 S. C. 1361), wherein it has been held "where misconduct when proved entailed penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex postfacto interpretation of some incident may not be camouflaged as misconduct....Where one of the rules of a public sector company relating to conduct and discipline of its employees provided for maintaining "absolute integrity" and to "do nothing which is unbecoming of a public servant", he said rule is vague and of general nature since what is unbecoming of a public servant may vary with individual and expose employees to vagaries of subjective evaluation. What in a given context would constitute conduct unbecoming of a public servant to be C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 18 of 60 19 treated as misconduct would expose a grey area not amendable to objective evaluation. Failure to keep to high standard of moral, ethical or decorous behaviour befitting an officer of the company by itself cannot constitute misconduct unless the specific conduct falls in any of the misconduct specifically enumerated in the conduct and discipline rules".
(f). In the case of Glaxo Laboratories (I) Ltd. Vs. Presiding Officer, Labour Court, Merrut (AIR 1984 S.C.
505), it has been held that "Everything which is required to be prescribed has to be prescribed with precision and no arguments can be entertained that something not prescribed can yet be taken into accounts varying what is prescribed. In short it cannot be left to the vagaries of the management to say ex postfacto that some acts of omission or commission no where found to be enumerated in the relevant standing order is nonetheless a misconduct not strictly falling within the enumerated misconduct in the relevant standing order but yet a misconduct for the purpose of imposing a penalty."
(g). The findings of the E.O. are based on no evidence. It is to be submitted that in the matter of Union of India Vs. H. C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 19 of 60 20 C. Goel (AIR 1964 S.C. 364), it was held by the Hon'ble Supreme Court of India that if the findings of the E.O. is based on noevidence, the enquiry is to be vitiated.
(h). The enquiry is vitiated for the fact that the learned E.O. and the alleged disciplinary authority, the defendant no. 2, which in fact is not the disciplinary authority, relied upon the documents and the material, original where of have never been produced and which were not even in the knowledge of the plaintiff and thus deliberately and malafidely denied a reasonable opportunity to the plaintiff to rebut the same.
(i). The enquiry is vitiated for the fact that the defendants have withheld the very material documents and the evidence as held in the maters of Trilok Nath Vs. UOI (1967 SLR
759), Dola Govinda Das Vs. UOI (1981 (2) Sir 1985) etc.
(j). The enquiry is vitiated for not following the principles of natural justice, in as much as the plaintiff has been denied an opportunity to adduce his proper defence as held in the matters of State of U.P. Vs. Om Prakash Gupta (AIR 1970 S.C. 679), A.L. Kraipak Vs. UOI (AIR 1970 S.C. 150); Chandra Bhawan Vs. State of Mysore (AIR 1970 S.C. 2042) and Girwar Vs. UOI (1982 (2) SLJ 56).
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(xiii). Cause of action and damges: The illegal, malafide and arbitrary action/actions of the defendants/reputation of the plaintiff, both in official and social circles and has further caused grave mental torture to him and his family members, both of which could hardly be compensated in terms of money etc; that the said amount of compensation/damages may vary from Rs.1/ Rs. 50 lakhs or more, as determined by the Hon'ble Court. The plaintiff has learnt from the reliable source that the defendant no.2 is likely to terminate the services of the plaintiff, at any time hence the present suit. The plaintiff has been drawing a total salary of Rs. 24,185.00 per month, but since the date of suspension order dated 19.06.1999, the plaintiff has been receiving Rs. 12,999.00 per month only. The plaintiff being born on 02.01.1948 has got 8 years more service since his retirement age is 60 years and, accordingly, if his services are terminated, the plaintiff is likely to incur/suffer the loss of about Rs.24,00,000/ towards the salary at the present rate of pay, about Rs.4,34,000/ towards C.P.C. and Rs.4,36,000/ towards the Gratuity; and it he gets further promotion, for which he is due, he may suffer the financial loss even to the tune of Rs.30 to Rs.35 lakhs. Similarly, the plaintiff shall suffer the loss of about Rs. 1,06,000/ towards service charges.
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(xiv). Reliefs sought : The plaintiff claims the following reliefs interalia:
a) A declaration that the suspension order dated 19.06.1999 is illegal, arbitrary and malafide etc.
b) A declaration that the memorandum/Charge sheet dated 27.07.1999, issued by the defendant no.2 is illegal, malafide and arbitrary
c) A declaration that the appointment of Enquiry Officer to conduct enquiry against the plaintiff is illegal, arbitrary and malalfide.
d) A declaration that the show cause notice dated November 30, 1999 passed by the Director, against the plaintiff, is illegal, malafide and arbitrary
e) A declaration that the plaintiff continues in the services of the defendant no. 1 without any sort of break, whatsoever, and, accordingly, is entitled to get all the service and incidental benefits right from the date of his suspension i.e. from 19.06.1999 till the date of his superannuation followed by the pension etc;
f) Damages as determined by the Court, for maligning gravely/badly his reputation/prestige both in his C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 22 of 60 23 ossicial and social circles and for causing grave intolerable mental torture to him his family members.
g) A declaration that the order dated 14.12.1999 terminating the plaintiff's services from the Centre, the defendant no. 1, is illegal, void and inoperative and, hence the plaintiff be deemed to be continuing in service of the centre, the defendant no.1 without any sort of break, in his rank and position with all due privileges accruing to him;
h) A declaration that the resolution dated 02.03.1983 of the Board of Trustees designating/ delegating the director with the power of the appointing authority in respect of all posts other than that of manager is illegal, void, and inoperative against the plaintiff,
i) A decree in the nature of mandatory injunction in favour of the plaintiff and against the defendants directing the defendants to treat the plaintiff continuing in service of the centre, the defendant no. 1, without any sort of break, in his rank and position with all due privileges accruing to him, with costs of the suit and with interest @ 18% per annum.
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2. The notice of the suit was given to the defendant who contested the same by filing a written statement.
3. It is necessary to mention here that the plaint was amended twice. The defendants filed the written statement to the first amended plaint and when the plaint was amended the second time, they adopted the earlier written statement and filed an additional written statement to meet the pleadings of the second amended plaint.
4. The defendants, in their written statement have taken the following preliminary objections:
(i). The suit is without any cause of action as the disciplinary action has been completed culminating into the passing of an order dated 14.12.1999 of dismissal from service. The order has been conveyed to the plaintiff under registered cover. The dismissal order has been in accordance with the terms and conditions governing the plaintiff's employment after affording him due opportunity of being heard. As such the suit of the plaintiff is infructuous.
(ii). The provisions of section 34 of the Specific Relief Act are not attracted in the facts and circumstances of the case.
(iii). Under regulation 14 of the Memorandum of Association and Rules and Regulations if IIC, the Board of Trustees has the powers to prescribe the functions, duties and powers of the Director, the C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 24 of 60 25 Treasurer and the Secretary. These have been exercised by the Board of Trustees vide a Resolution dated 2nd March 1983 visàvis the Director.
(iv). The resolution dated 2nd March, 1983 by the Board of Trustees has been passed in pursuance of the rights, powers and duties of the board of trustees under the memorandum of association and rules & regulations of defendant no. 1 and is legal, valid and binding on the plaintiff. Under the Memorandum of Association and Rules and Regulations of defendant no. 1 the Board of Trustees have, inter alia, the right and the power to prescribe the powers, functions and duties of the Director. The Board of Trustees is competent to prescribe the administrative and financial powers of the director and of the officials and the same are not open to challenge by the plaintiff.
(v). The plaintiff has no right, basis or justification to raise any challenge to any resolution or decision by the Board of Trustees made in pursuance of their powers and functions under the Memorandum of Association and Rules and Regulations of defendant no.1. The plaintiff has no right to challenge the resolution dated 2nd March, 1983 of the Board of Trustees as is sought to be done or for the reasons alleged or at all. C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 25 of 60 26
(vi). The order of termination of plaintiff's services made on 14th December 1999 has been passed by the competent disciplinary authority after a domestic enquiry ordered in relations to charges alleged against the plaintiff and taking into consideration the report of the enquiry officer and after affording to the plaintiff an opportunity of showing cause against the proposed punishment and considering answer thereto made on his behalf.
(vii). It is indisputable, rather it is admitted that in terms of clause 15 of the memorandum of association and rules and regulations of defendant no.1, the powers functions and duties of the Executive Committee are subject to the overall control of the Board of Trustees and subject to any resolution of the Board of Trustees in that behalf. The administrative and financial powers in relation to the Director and other officers have been prescribed by the board of trustees laying down the administrative and financial powers of the directors and other officers and are binding on the plaintiff and are not open to challenge.
(viii). The plaintiff at the time of his suspension was working as Dy. Accounts officer with the defendant no.1. The plaintiff had been promoted/designated to the post of Dy. Accounts officer with effect from 01.1.1991 under orders of the then Director of C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 26 of 60 27 defendant no.1. The Director by virtue of his powers, functions and duties as such is the appointing authority for the post of Dy. Accounts officer and from time to time has been making orders in relation to the plaintiff's posting; scale of pay emoluments and other matters. In relation to the post that was held by the plaintiff at the time of his suspension and to which the order of termination of his services dated 14.12.1999 relate, the Director is the competent authority both with regard to the appointment and the disciplinary action. Being aware of and knowing fully well the position that the Director is the appointing as well as disciplinary authority in terms of the governing Memorandum of Association and Rules and Regulations of defendant no. 1, including the resolution dated 02.03.1983, of the Board of Trustee, in relation to the post that we held by the plaintiff, the plaintiff never raised any question with regard to the powers and functions of the Directors.
(ix). The various orders which have been made in relation to suspension and disciplinary proceedings and the order of termination of 14.12.1999 have been properly and validly made by the Director in exercise of his powers, functions and duties as per the memorandum of association, Rules and regulations of defendant no. 1 and decisions of the Board of Trustees. C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 27 of 60 28
(x). An appeal against the order of the Director exercising. Disciplinary Authority lies to the Board of Trustees under the governing provisions of Memorandum of Association and Rules and Regulations and scheme of administrative and financial powers and the present suit is not maintainable.
5. On merits, the defendants admitted the factum of the disciplinary proceedings initiated against the plaintiff but denied the violations of rules, or principles of natural justice at any stage of the proceedings. The defendants denied all such material averments on which the plaintiff has propounded his cause of action. The averments of merits were supported in terms of the preliminary objections.
6. The plaintiff filed the replication in which he denied the material averments of the written statement while reiterating the averments of his plaint.
Issues
7. With the available pleadings the following issues had been framed vide the minutes of proceedings dated 20.09.2001:
1. Whether the disciplinary proceedings were drawn and inquiry had been conducted by the competent authority?
2. Whether the suit is not maintainable?
C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 28 of 60 29
3. Whether the plaintiff is entitled to any compensation, if so, how much?
4. Relief.
8. The plaintiff has examined himself as PW1 as his sole witness. The defendant has not led any evidence.
Final Arguments
9. I have heard Shri Alok Kumar, Ld. Counsel for the plaintiff and Shri K. R. Chawla, Ld. Counsel for the defendant.
10. While addressing the arguments, Ld. Counsel for the parties have copiously read from the pleadings, evidence and documents on record. Statutory and case law has also been referred to by the ld. counsel.
11. The defendant has filed on record its written arguments.
Arguments of Plaintiff
12. Ld. Counsel for the plaintiff has submitted that the case in hand speaks volumes about the gross injustice which has been meted out to the plaintiff. The disciplinary proceedings against him had its genesis in complaints from Embassy of Spain about certain happenings involving the plaintiff. The defendants constituted these to be gross mistake and indiscipline on the part of the plaintiff. This resulted in his immediate suspension and a show cause notice.
13. The notice dated had 19.06.1999 set the ball in motion. The C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 29 of 60 30 plaintiff was charged with the utmost serious offence of misrepresenting the position in the centre, acting in a prejudicial manner and bringing the Centre into the disrepute. The show cause notice raised serious doubts about the plaintiff's integrity which warranted the imposition of major penalty of dismissal from service. The plaintiff had been asked to submit his explanation by 21.06.1999. The plaintiff submitted an interim reply to the said show cause notice on 21.06.1999. He also sought one week's time to give the detailed reply which was granted vide letter dated 22.06.1999. However vide letter dated 28.06.1999, the plaintiff in formed the defendants that he did not want to give any further reply.
14. Then the management initiated the inquiry in respect of certain charges. This was done vide the Memorandum dated 27.07.1999. The plaintiff submitted his detailed reply to the said memorandum vide letter dated 04.08.1999, wherein he had denied all the charges levelled against him. The plaintiff further wrote a letter dated 30.08.1999 praying that the inquiry may be concluded at the earliest. Justice J. K. Mehra, Retired Judge of the Hon'ble High Court of Delhi was appointed as the inquiry officer and gave his report. The inquiry was conducted in gross violation of the principles of natural justice. The inquiry officer gave his report consequent upon which a show cause notice dated 30.11.1999 was served upon the plaintiff calling upon him to show cause as to why the penalty C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 30 of 60 31 of dismissal from service be not imposed upon him. On 15.12.1999 the present suit was filed. The order of termination is also 15.12.1999, which albeit came to the knowledge of the plaintiff during the pendency of the suit proceedings and it led to the amendment of the suit.
15. It is submitted that it is a case of no evidence on the part of the defendant.
16. The plaintiff has been prejudiced as the entire disciplinary proceedings are nonest in the eyes of law, being done by the Director who is not competent to do so. If this is permitted, it would amount to the change of the service conditions of the plaintiff, which is not permitted to be done to his prejudice under the law of the land. The plaintiff had been appointed by the Board of Trustees and only that authority is competent to exercise the powers of termination. The service conditions of the plaintiff cannot be changed at his back to his prejudice and detriment. Thus the entire disciplinary proceedings have been without any sub stratum and legal sanctity. They cannot withstand the scrutiny on the altar of the law.
17. The objection of the defendant that the case of the plaintiff is not maintainable has no legs to stand. The preamble of the Specific Relief Act reads that 'it pertains to the law relating to certain kinds of specific relief'. Thus the Act is not exhaustive of the reliefs. Thus the list of kinds C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 31 of 60 32 of declarations which can be granted under the Act is not exhaustive but only illustrative.
18. The Courts also exercise equity jurisdiction--declaration and injunctions are some of the aspects of it. Equity takes precedence over everything.
19. While section which is in Chapter II of the Specific Relief Act lays down that certain contracts are not specifically enforceable, section 34 which is part of Chapter VI has much wider scope. It is not controlled by section 14 of the Specific Relief Act. It covers cases which are beyond the scope and realm of contract.
20. There cannot be delegation of powers which can operate retrospectively. If a question is posed to one's own self as to whether the rules can be amended to the detriment of the plaintiff after he had been appointed for more than six years, the answer is clearly 'no'. In the instant case the plaintiff could have only been removed by the Board of Trustees.
21. The order dated 21.07.2005 passed by this Court held the issues to be subject matter of evidence. No evidence has been led by the defendant, thus the logical corollary goes against it. It was incumbent upon the defendant to prove due passing of resolution vide which the powers were delegated; its enforcement retrospectively. For want of the same the C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 32 of 60 33 resolution cannot be read in evidence. The plaintiff is thus entitled to declaration.
22. There is no question of acquisance even if the plaintiff did not object to the earlier stoppage of one increment by the Director. It is now waiver to right to object.
23. All the equities are in favour of the plaintiff, more so when he has also been acquitted in criminal case also.
24. The law has envisaged two kinds of damages--specific or general. While specific damages require proof, general damages can be awarded on guess work by taking an overall cognizance of the facts and circumstances guided by the wisdom of the Court. Plaintiff's case falls into the latter. It is prayed that the suit be decreed.
Defendants' Arguments
25. Ld. Counsel for the defendants has argued that the relationship between the plaintiff and the Defendant no. 1, India International Centre, was purely contractual. The services of the plaintiff who was the employee of the Society and been rightly terminated in accordance with the terms and conditions applicable to him and by the Authority duly empowered in terms of the Memorandum and Articles of Association of the Society (a document produced and relied upon by the plaintiff himself). The order was made by the Director, who is the Appointing C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 33 of 60 34 Authority in relation to the post of Dy. Accounts Officer to which post the plaintiff had been designated under Orders of the Director. While in the said post he was transferred as a Purchase Officer under orders of the Director and also promoted and granted a higher scale in 1998 under the orders of the Director. In an earlier Disciplinary proceeding ordered by the Director, Plaintiff had been issued a warning by the Director.
26. The Memorandum of Association and Rules and Regulations of IIC would show the rights, powers and duties of the various authorities and Officer of the Centre. The Centre has a Board of Trustees, an Executive Committee and a Director.
27. The rights, powers and duties of the Board of Trustees are contained in Article 14 of the Rules and Regulations and they have the overall powers of Management including the Powers to lay down the Powers, functions and duties of the certain officials who were appointed by the Board. Article 14 (xcii) empowers the Board of Trustees to prescribe the powers, functions and duties of the Director, the Treasurer and the Secretary.
28. The Board of Trustees vide Resolution dated 2nd March, 1983 approved the Financial and Administrative Powers of various authorities / officials of IIC including the Director.
29. So far as the Executive Committee is concerned it functions under C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 34 of 60 35 the overall control of the Trustees and subject to any Resolution of the Board of Trustees have certain powers and duties enumerated in Article 15 of the Rules and Regulations. Provided further that the Director is empowered to perform any of the functions of the Executive Committee in between the meetings of the Executive Committee. Under the Regulation IIC can sue and be sued in the name of the Director. The Board of Trustees had passed a Resolution dated 02nd March, 1983 defining the Financial and Administrative Authority for all posts other than that of a file manager, Secretary, controller of Accounts, Librarian and Auditor.
30. The Disciplinary proceedings in the present case were ordered by the Director of IIC who in terms of the Financial and Administrative powers laid down in accordance with the Memorandum and Articles of Association of Defendants no. 1 had been conferred full Administrative powers of appointment for all posts other than the Manager, C. A., Secretary, Librarian and Auditor. The powers include the post of a Dy. Accounts officer. Further, the Director is also empowered to exercise full Disciplinary Powers and action in relation to the Post for which the Director is the appointing authority. The exercise of the Disciplinary Powers by the Director is in consonance with the powers conferred on him pursuant to the Memorandum and Articles of Association of C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 35 of 60 36 Defendant No. 1 by the Director.
31. In relation to the plaintiff the Director has been exercising Disciplinary Powers all along to the knowledge of the plaintiff. reference be had to the Office Memorandum dated June 3, 1982 ( Ex. D3) whereby the then Director had on the basis of a Charge Sheet and Enquiry and the Report of the Enquiry officer decided to stop the annual increment by way of punishment. Reference is also invited to the Office Order fixing the pay of the plaintiff as an Assistant Accounts Officer giving an increment (Ex. D5) as also to the Memorandum granting Special Allowance and designating the Plaintiff as Dy. Accounts Officer (Ex. D6). Reference is also invited to Office Memorandum dated 29th December, 1994 (Ex. D8) whereby the Director granted higher pay scale to the plaintiff. Reference is also invited to orders transferring and posting the plaintiff from one Department to another.
32. Thus it is amply established on record that Disciplinary Action against the plaintiff had been taken by the Authority competent to do so. After a thorough Enquiry and affording to the petitioner full opportunity and in consonance with the principles of natural justice, action against the plaintiff thus had been taken by the Authority empowered and competent to do so.
33. The plaintiff has from time to time been taking inconsistent C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 36 of 60 37 position with regard to the appointing Authority. It had been asserted by him that the Executive Committee is the Appointing Authority for the Post and sought to rely upon the Service Conditions, (bye laws) which had been formulated in 1967, in respect of categories 2, 3, and 4 mentioned in the Second Schedule the Executive Committee had been shown as the Appointing Authority.
34. This, however, overlooks the position in the Memorandum and Articles of Association which defines the Constitution of Defendant No. 1 as a Society, the Board of Trustees had the overall powers and the Board of Trustees had been given the authority in terms of their resolution of 2nd March, 1982 to the Director. It may also be pertinent to mention that the provisions of Byelaws by virtue of ByeLaw 3 were subject to the provisions and the Rules and Regulations.
35. Further more, as is evident from the documents referred to above to the knowledge of the plaintiff the Director was the Disciplinary Authority qua him.
36. The plaintiff had previously been dealt with by the Director in relation to the Administrative and Disciplinary matters concerning him.
37. The plaintiff had also not raised any question when the Disciplinary proceedings were commenced and in fact had asked the Director in his letter of 30th August, 1999 to have the Enquiry completed. C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 37 of 60 38
38. The suit for the reliefs claimed by the plaintiff is not maintainable according to well settled position in law and Plaintiff has no right or entitlement to the reliefs claimed by him. In integrated Rural Development Agency Vs. Ram Pyare Pandey ( 1995 Supp (2) SCC
495) Hon'ble the Supreme Court while considering the question of termination of an employee of a registered Society, inter alia, observed and noticed that in the ordinary case of Master and Servant the repudiation or dismissal puts an end to the contract. The Court noticed the Judgment of three Member Bench of Supreme Court in Nandganj Sihori Sugar Co. Ltd., Rae Bareli vs. Badri Nath Dixit (1991) 3 SCC 54 and reproduced the observations of Hon'ble Mr. Justice Thommen in paragraph 10 thereof on pages 5960 to the following effect: "A contract of employment cannot ordinarily be enforced by or against an employer. The remedy is to sue for damages. (See Section 14 read with Section 41 of the Specific Relief Act; see Indian Contract and Specific Relief Acts by Pollock and Mulla, 10th Edn., page 983). The grant of specific performance is purely discretionary and must be refused when not warranted by the ends of justice, such relief can be granted only on sound legal principles. In the absence of any statutory requirement , courts do not ordinarily by the employer. There are of course, certain exceptions to this rule, such as in the case of a public servant dismissed from service in contravention of C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 38 of 60 39 Article 311 of the constitution; reinstatement of a dismissed worker under the Industrial Law; a statutory body acting in breach of statutory obligations, and the like ( S. R. Tewari Vs.. District Board, Agra; Executive Committee of UP, Warehousing Corpn. v. Chandra Kiran Tyag;
Executive Committee of Vaish Degree College, Shamli v. Lakshmi Narain; see Halsbury's Laws of England, 4th Edn. , Vol. 44, Paras 405 to 420)".
39. The case of plaintiff does not fall in any of the exceptions referred to in the Judgment.
40. In the above case the Court refered to the observations made in Ridge v. Baldwin (1963 ) 2 All ER 66.The Supreme Court in the aforesaid Badri Nath Dixit's case had relied upon the earlier decisions of S. R. Tewari vs. District Board, Agra AIR 1964 SC 1680 and Executive Committee of Vaish Degree College, Shamli vs. Lakshmi Narain ( 1976) 2 SCC 58.
41. In Nandganj Sihori Sugar Co. Ltd., Rae Bareli Vs. Badri Nath Dixit case Hon'ble the Supreme Court specifically referred to Sections 14 and 41 of the Specific Relief Act while observing that a contract of employment cannot ordinarily be enforced by or against the employer. In Dr. Bool Chand Vs. Chancellor, Kurkshetra University AIR 1968 SC292 a three Member Bench of Hon'ble the Supreme Court noticed that the observations in 1964 AC 40 that "the law regarding Master and C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 39 of 60 40 Servant is not in doubt. There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none".
42. In Executive Committee of UP State Warehousing Corporation Limited the Hon'ble Supreme Court while setting aside the judgment and decree of the High Court so far as it declares the order being Null and Void and Respondent continued to be in service of the Appellant, inter alia, took note of various decisions that no declaration to enforce contract of personal service will be normally granted. The Court also noticed the exceptions to Rule as appropriate cases of public servants who have been dismissed from service in contravention of Article 311; dismissed workers under industrial and labour law; and when a statutory body has acted in breach of a mandatory obligations imposed by a statue. In the present case none of the exceptions applied or are attracted. The position in this case is covered by the decisions of Ho'ble Supreme Court in Integrated Rural Development Agency (1995) Supp (2) SCC 495.
43. In numerous cases Hon'ble the Supreme Court and the various High Courts have laid down that in case of a relationship of Master and Servant there can be no right to claim the relief of reinstatement or back wages.
44. In the present case the plaintiff has made a claim for damages on C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 40 of 60 41 account of loss of reputation and not in respect of termination. There is not an iota of averment or evidence to support such a claim for damages for alleged loss of reputation which too deserves to be rejected. Reference is also invited to the order of Hon'ble Delhi High Court dismissing plaintiff's application for adducing further evidence by eliciting information from defendant. Plaintiff's failure to adduce any evidence and absence thereof is manifest on record. In the plaint the plaintiff had in paragraph 36 the plaintiff has alleged about his prestige / reputation in official and social circle having been badly / gravely affected on which compensation was claimed in para 40 (f). There is not an iota of evidence on record in respect of the said allegations which even otherwise is wrongful and untenable. As is evident from the record and admitted the Disciplinary proceedings had been initiated on account of a complaint about the gross misconduct received from the Embassy of Spain and the orders that were made after holding an inquiry and on the basis of the findings of the Inquiry Officer and after affording full and fair opportunity to the plaintiff. The plaintiff can have no right, basis or justification for claiming any compensation whatsoever. It is submitted that the plaintiff is not entitled to any order or decree or relief and suit may be dismissed with costs.
45. In rebuttal, Ld. Counsel for plaintiff refuted the arguments as C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 41 of 60 42 advanced on behalf of the defendant and submitted that the case law cited by the plaintiff was clearly distinguishable in the facts of the present case. There is no question of any estoppel (which plea has not in fact been set up) or waiver of right to object. It is for the employer to ensure that the principles of natural justice have been adhered to and these being fundamental cannot be subject matter of waiver.
Findings and Reasons
46. I have considered the submissions and the material on record. My findings on various issues are as under: Issue no. 2. Whether the suit is not maintainable?
47. I am taking up this issue first as it goes to the root of the matter.
48. Question of maintainability is either a question of the right to sue or right to sue before a particular forum or suing in a particular form.
What is being questioned here is the right to sue.
49. Section 9 of the Code of Civil Procedure reads as under: "9. Courts to try all civil suits unless barred-- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which the cognizance is either expressly or impliedly barred."
50. The language as used in section 9 is wide, expansive and all embracing. The principle of 'ubi jus ibi remedium' accounts for the same.
C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 42 of 60 43
51. It is only when cognizance of a particular kind of suit is barred either expressly or impliedly that the jurisdiction of a Civil Court would be ousted to entertain such a suit. It is the settled law that when even only a part of relief can be granted by a Civil Court, the suit is maintainable.
52. Every person has an inherent right to bring a suit of civil nature unless the suit is barred by some statute. Access to a Civil Court is an important and vested right of every citizen. It cannot be refused even when the statute is silent.
53. A civil action is one in which a private person claim a legal injury or violation of rights and seeks remedies and the action is distinct from the remedies under the criminal law.
54. In the instant lis the plaintiff has challenged his removal from services and has termed the actions of the defendants without jurisdiction, ultra vires their authority or powers to delegate and against the principles of natural justice. The averments as made tacitly make out a civil dispute.
No law or precedent has been cited before me to show that the plaintiff is not entitled to set the law in motion for redress of his grievance.
55. It is also the settled law that a suit should not fail for defect of the form. It is the substance which has to be preferred over the form. Whether the plaintiff succeeds in his cause or whether the defence C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 43 of 60 44 version is sustained is a different matter altogether.
56. Therefore this issue is answered in favour of the plaintiff. Issue no. 2. Whether the disciplinary proceedings were drawn and inquiry had been conducted by the competent authority?
57. Before, I venture into examining the issue, it is necessary to deal with the legal position visàvis a party not entering into the witness box. This is necessary to examine for the reason that the defendant has not entered into the witness box.
58. Part III of the Indian Evidence Act, 1872 deals with production and effect of evidence. Its chapter VII deals with the burden of proof.
59. In the law of appreciation of evidence two concepts viz. the burden of proof and onus of proof are commonly referred to. While the burden of proof is the prime responsibility of propounder of a fact, the onus of proof determines who shall first open the evidence on a particular issue. Another striking difference is that the burden is static where onus is dynamic concept. Burden never shits but onus is a continuous shifting process. Once the person opening the evidence has established high degree of probability the onus shifts on the adversary. If the adversary has not led any evidence, then the buck stops there.
60. It is not required for any party to compulsorily enter into the witness box to prove its case. The law of evidence does not mandate that C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 44 of 60 45 a party, must as a necessity, enter into the witness box and failure to do shall always go against it. It is not a ritual which must be performed as a sine qua non.
61. A case may have a cluster of facts, as cause of action is a bundle of facts, which are required to be established. Entering into the witness box to depose orally is not the only mode of proving the facts; it is only one of the modes. The facts in issue or relevant facts may be proved by one or more of the following modes:
(i). oral admissions (express or deemed) of the adversary either in pleadings or in cross examination; or
(ii). admissions of documents relevant to the controversy;
(iii). by statutory presumptions; or
(iv). by bringing person(s) into the witness box who are privy to any transaction or part of transaction; or
(v). by party itself entering into the witness box; or
(vi). by adverse inference on account of any party not producing a document or fact in its power and possession; or
(vii). in any other mode or by any other means recognized by the law.
62. Thus is not always incumbent upon a party to enter the witness box, if the facts can be proved by other evidences, and in such an C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 45 of 60 46 eventuality nonappearance of a party into the witness box cannot be taken as a circumstance against it. However, if certain facts are within the personal and especial knowledge of a party, and if it shies away from entering into the witness box, it can be taken as a circumstance against it.
63. With so many factors involved in case from pleadings to admission or denial of documents, from framing of issues to the parties calling their respective evidences, from cross examination of witnesses to addressing arguments, a case through many stages and each stage or proceedings has its implications. The outcome or result of a case is an aggregation of the entire facts tendered in evidence coupled with their test on the touchstone of law. Hon'ble High Court of Delhi in Kerala Agro Industries Corporation Limited vs. Beta Engineers 188 (2012) DLT 373 has held that "...a civil case is decided on balance of probabilities. A civil court puts all the evidence which have been led in a melting pot so as to determine the final picture which has to emerge...".
64. In this view of the law a wholesome view of the entire material on record has to be taken and the alloy which is formed by the concoction of the entire evidence tested on touchstone of law would the final outcome.
65. The basic facts of the case are not in dispute. What is in dispute or under challenge is the justification of various acts and deeds of the defendants and whether the same are within the four corners of the law. C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 46 of 60 47
66. The panorama of facts in some sketchy detail is that the plaintiff was initially appointed with the defendant as a Lower Division Clerk way back in 1971 and within a span of two years he got promoted as Upper Division Clerk in 1973 and then had risen to the position of the Dy. Accounts Officer in 1991. It is while holding the said position the plaintiff was issued show cause followed by an inquiry into the charges framed against him which held him guilty and consequently he was dismissed from the services.
67. The plaintiff is the only witness of the case as PW1. Besides his oral deposition he has tendered into his evidence various documents. None of the documents of plaintiff have been denied by the defendant. In fact, all the documents on record have been tacitly admitted by the parties. The dispute is as to the implications of the documents or the authority to take the action which the documents purports to be reflecting.
68. The examination in chief of PW1 is in terms of his plaint. In his cross examination he has deposed that his date of birth is 02nd January, 1948 and that he has already completed sixty years of his age.
69. PW1 has admitted the suggestion that he was appointed with the defendant as Lower Division Clerk in the year 1971 and has volunteered to state that he was on probation. He has also admitted the suggestion that in June 1973 he was promoted as Upper Division Clerk by the then C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 47 of 60 48 Accounts Officer.
70. PW1 stated that he did not remember whether in July 1981 he was involved in any misconduct or was given charge sheet by the defendant or that whether any inquiry was also conducted in that charge sheet. He stated that he did not remember that in June 1982 he was given punishment resultant to that inquiry of stoppage of one increment.
71. The witness PW1 was confronted with a document Ex. D3 and the witness had already admitted when the case was pending before the Hon'ble High Court. PW1stated that "I admit this document which is a memorandum dated 03.06.1982 vide which one increment was stopped"
however he volunteered to state that he was wrongly implicated.
72. PW1 admitted as correct that memorandum Ex. D3 was issued after holding an inquiry by the Inquiry Officer. It was issued by the then Director.
73. The witness PW1 further stated in his cross examination that he did not remember whether he was served with show cause notice dated 16.11.1998 under the orders of the then Director, when he was working as Deputy Accounts Officer. He stated that he could not recall all these things whether he had replied that show cause notice.
74. Further in his cross examination PW1 stated that he did not remember whether on 05.12.1998, pursuant to show cause notice dated C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 48 of 60 49 16.11.1998 warning was given to him by the Director of the defendant.
75. In his cross examination the witness was confronted with a document, Ex. D11, viz. a memo dated 05.12.1998 signed by Sh. N. H. Ramachandran, the then Secretary of the defendant. After seeing the document PW1 admitted that the said warning Ex. D11 was received by him. It is observed that the said document Ex. D11 was also admitted by the witness before the Hon'ble High Court, when case was pending there.
76. PW1 denied the suggestion that the statement made by him in para 6 of my affidavit Ex. P1 is false. (Para 6 reads that the plaintiff had a good and clean record of service). He admitted the suggestion as correct that he had not referred regarding inquiry of the year 1982 and warning of the 1998 in his plaint as well as affidavit Ex.P1. He volunteered to state that he had denied the inquiry as well as warning.
77. PW1 admitted the suggestion as correct that despite admitting Ex. D3 & Ex. D11 before the Hon'ble High Court, I have not mentioned about these documents/facts in my affidavit Ex. P1 and today I did not remember about these documents till these were shown to me in the Court during my cross examination. He volunteered to state that he was a patient of diabetes and suffering from amnesia, and therefore he forgot about these documents. He stated that he had admitted before the Hon'ble High Court regarding receipt of the documents Ex. D3 and Ex. D11. C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 49 of 60 50
78. In his further cross examination PW1 admitted that it is correct that in respect of the charges levelled against him an inquiry had been initiated. He also admitted that vide a letter dated 30.08.1999 he had requested the Director of IIC to expedite the inquiry. He also admitted that Justice J. K. Mehra, Hon'ble retired Judge of the High Court was appointed as an Inquiry Officer. He further admitted as correct that he had participated in the inquiry. He also admitted that the Inquiry Officer recorded the evidence of both the parties. He further admitted that two witnesses from Ambassy of Spain were examined in the inquiry.
79. The suggestion has been admitted by the witness PW1 in his cross examination that the Inquiry Officer submitted the report holding that charges were proved. He admitted that that during the course of inquiry I did not raise any objection pertaining to the process of inquiry.
80. Witness PW1 stated that he had received the copy of the inquiry report.
81. PW1 stated that as Asstt. Accounts Officer his main job was to control the food cost and debtors accounts. He was also assigned the other various jobs. He denied the suggestion that as Dy. Accounts Officer, I was also assigned the duty of internal audit and financial checks as per the powers assigned to me.
82. The witness PW1 stated that he had seen the document Ex. D1 C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 50 of 60 51 from the judicial record. He stated that a copy of this documents was never supplied to him during the course of his service and that he came to know about document Ex. D1 for the first time when its copy was supplied to him during the proceedings before Hon'ble High Court. He stated that he was not aware about the delegation of powers to other officers.
83. PW1 had admitted the suggestion as correct that during the course of inquiry and till the conclusion of inquiry he had not raised any objection, questioning the powers of the Director in respect of his suspension, issuance of charge sheet and institution of inquiry. However he volunteered to state that he was not aware about the powers of the delegations.
84. PW1 admitted the suggestion as correct that he was given higher revised pay scales under the orders of the Director. Further it was stated voluntarily that in fact Director took the orders from the Board of Trustees and had only conveyed it to the plaintiff pertaining to the revised pay scales.
85. PW1 denied the suggestion that he had wrongly deposed in his affidavit in para 6 that he had a clean and unblemished service record. He admitted the suggestion that during the service he was charge sheeted and was punished before this inquiry under the orders of the Director. C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 51 of 60 52
86. Declaratory decrees have been dealt under section 34 of the Specific Relief Act, which defines the scope and arena of the powers as under: "34. Discretion of court as to declaration of status or right. --Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so en titled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declara tion where the plaintiff, being able to seek further re lief than a mere declaration of title, omits to do so. Explanation. -- A trustee of property is a "person in terested to deny" a title adverse to the title of some one who is not in existence, and whom, if in exis tence, he would be a trustee."
87. The plaintiff's cause of action has its genesis in the existence of ju ral relationship of employer and employee which the defendant has been denying him on the basis of the inquiry, its finding and imposition of pun ishment of dismissal. The plaintiff has stated that the action to be ultra vires and without authority.
88. In opposition of the claim of the plaintiff the defendants have set up the bar of section 14 of the Specific Relief Act, which reads as under: C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 52 of 60 53 "14. Contracts not specifically enforceable--(1) The following contracts cannot be specifically en forced, namely: --
(a) a contract for the nonperformance of which com pensation is an adequate relief;
(b) a contract which runs into such minute or numer ous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms;
(c) a contract which is in its nature determinable;
(d) a contract the performance of which involves the performance of a continuous duty which the court cannot supervise.
(2) Save as provided by the Arbitration Act, 1940, no contract to refer present or future differences to arbi tration shall be specifically enforced; but if any per son who has made such a contract (other than arbitra tion agreement to which the provisions of the said Act apply) and has refused to perform it, sues in respect of any subject which he has contracted to refer, the exis tence of such contract shall bar the suit. (3) Notwithstanding anything contained in clause (a) or clause (c) or clause (d) of subsection (1), the court may enforce specific performance in the following cases: -- (a) where the suit is for the enforcement of a contract --
(i) to execute a mortgage or furnish any other security for securing the repayment of any loan which the bor rower is not willing to repay at once: Provided that where only a part of the loan has been advanced the C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 53 of 60 54 vendor is willing to advance the remaining part of the loan in terms of the contract; or
(ii) to take up and pay for any debentures of a compa ny;
(b) where the suit is for, --
(i) the execution of a formal deed of partnership, the parties having commenced to carry on the business of the partnership; or
(ii) the purchase of a share of a partner in a firm;
(c) where the suit is for the enforcement of a contract for the construction of any building or the execution of any other work on land: Provided that the follow ing conditions are fulfilled, namely: --
(i) the building or other work is described in the con tract in terms sufficiently precise to enable the court to determine the exact nature of the building or work;
(ii) the plaintiff has a substantial interest in the perfor mance of the contract and the interest is of such a na ture that compensation in money for nonperformance of the contract is not an adequate relief; and
(iii) the defendant has, in pursuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or oth er work is to be executed."
89. A case for declaration of a statutory invalidity of an act of dismissal of employee is entirely different from the enforcement of a contract of personal services. The only question requiring consideration is whether any material term of service conditions, which are statutory, have been violated or byepassed, and, if so, such act must be declared to C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 54 of 60 55 be nullity. Such declaration is different from a declaration directing enforcement of a personal contract of service.
90. In the present case, admittedly the defendant no. 1 is a society registered under the Societies Registration Act. The plaintiff had been appointed by the Board of Trustees. The plaintiff himself has stated that he is governed by 'India International Centre Office Employees (Service Conditions) Byelaws'
91. To the memo dated 19.06.1999 the plaintiff had submitted his reply dated 21.06.1999 which is Ex. PW1/7. This has been submitted through his Advocate Shri Kavindra Solanki. In the same the plaintiff has not raised the issue of the lack/defect of authority on the part of the Director. He was then issued charges sheet Ex. PW1/8. The plaintiff replied to the same vide his detailed reply, running into eight typed pages, dated 08.08.1999 and Ex. PW1/9. Any objection to the authority of the Director is conspicuous by absence in the said reply.
92. Under regulation 14 (xviii) of the Memorandum of Association and Rules and Regulations of defendant, which is Ex. PW1/2, the Board of Trustees has the powers to prescribe the functions, duties and powers of the Director, the Treasurer and the Secretary. This is a document which is in the public domain. These powers have been exercised by the Board of Trustees vide a Resolution dated 2nd March 1983. This is a document C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 55 of 60 56 which is in public domain. The Board of Trustees vide Resolution dated 2nd March, 1983 approved the Financial and Administrative Powers of various authorities and visàvis the post of the plaintiff amongst others the powers have been vested in Director and the Appellate Authority is Board of Trustees. As the plaintiff has, in the present suit, in so many challenged the said resolution as well as the authority of the Board of Trustees to delegate he cannot deny the existence of the document.
93. As per the Memorandum of Association and Rules & Regulations of defendant, contained in Ex. PW1/2, the defendant is within its right to delegate its powers. This right cannot be challenged by the plaintiff in these proceedings.
94. No organization can afford to remain static. With its growth and increase of its scope of work and workforce there is need to create tiers into its hierarchy and if need be to create new bucks, new responsibilities, new hierarchical levels. An employee on the one side being the beneficiary of the growth and getting promotions/raise in salary (but for the growth the promotions/salary hikes would not have been forthcoming) cannot take an objection to the delegation of authority by the Governing or Executive Body. The wisdom of the Board of Trustees cannot be challenged by the plaintiff in these proceedings.
95. Regulation 14 (xviii) of the Memorandum of Association and C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 56 of 60 57 Rules & Regulations, Ex. PW1/2, shows by itself that the same is a living document subject to change and not an unalterable charter of the defendant.
96. The fact of the matter is that this objection has been developed by the plaintiff halftheway. As already observed above this objection was conspicuous by absence in the reply the plaintiff had submitted his reply dated 21.06.1999 which is Ex. PW1/7or the reply dated 08.08.1999 which is Ex. PW1/9.
97. The plaintiff as PW1 has admitted that in June 1973 he was promoted as Upper Division Clerk by the then Accounts Officer. He has further admitted that vide Ex. D3, a memorandum dated 03.06.1982 vide which one increment was stopped, was issued by the then Director. After initial denial, PW1 had admitted the document Ex. D11, a memo dated 05.12.1998 signed by Sh. N. H. Ramachandran, the then Secretary of the defendant.
98. In his evidence PW1 has admitted that during the course of inquiry and till the conclusion of inquiry he had not raised any objection, questioning the powers of the Director in respect of his suspension, issuance of charge sheet and institution of inquiry but he volunteered to state that he was not aware about the powers of the delegations, which volunteered portion does not inspire confidence as to its truth noting the C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 57 of 60 58 demeanor of the witness as exhibited by his evasive answers to the various questions and denial or pleading no knowledge of the admitted documents. PW1 has also admitted that he was given higher revised pay scales under the orders of the Director.
99. The plaintiff had his share of bouquets and brickbats under the authority of the Director of the defendant. Sometimes he was rewarded and sometimes he was punished by the same authority, whose vires he is challenging now. In either case, he accepted the boon or bane without any demur.
100. An employee may receive incentives or other things from some Authority in his Organization any his nonobjection to the powers of that person/office may not amount to waiver of his rights to challenge the authority of the said person/office as no body is likely to conduct himself in such fashion to his deprivation and it cannot be taken as a circumstance against him. However, when adverse actions flow from an Authority/Office in his organization and the employees keeps mum and accepts the same, he cannot later on cry hoarse and challenge the authority. In the worst scenario, such a challenge may be open to him if taken at the first instance in a particular proceeding (notwithstanding that he has not taken a challenge in some past proceeding, which he might have considered to be trivial in nature and therefore thought it best not to C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 58 of 60 59 take cudgels against the management) but once the proceedings are culminated such a stand is not open.
101. I have considered the case law cited by the parties. As each case has to go on its own particular facts, with utmost regard to the judicial precedents cited, the inquiry in this case being to the facts, the facts as established on record do not go in favour of the plaintiff. No prejudice has been established, even if the test of facts on record, proceed on assumption that the delegation of powers to the Director is nonest. The Board of Trustees while delegating the powers to the Director have made the Board of Trustees as the Appellate Authority. Thus the plaintiff has got one more hierarchal level within the Organization itself. This cannot be stated to be prejudicial by any standards.
102. Nothing could be established by the plaintiff that he was deprived of the principles of natural justice during the course of inquiry against him, except his own selfserving refrain.
103. Accordingly the finding on this issue is returned against the plaintiff.
Issue no. 3. Whether the plaintiff is entitled to any compensation, if so, how much?
104. In view of my findings on the issue no. 2, this issue has lost its substratum.
C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 59 of 60 60
105. This issue is answered accordingly.
Relief
106. In view of he above findings on the issues, the suit of the plaintiff is dismissed.
107. Parties to bear their own costs.
108. Decree sheet be drawn accordingly.
109. File after necessary compliance be consigned to the Record Room. Announced in the Open Court today on 27th day of November 2012 (Man Mohan Sharma) ADJ (Central)1, Delhi C.S.88/2011 S. Banerjee vs. India International Centre & Ors. Page 60 of 60