Delhi District Court
Sh. Sushil Kumar Jain S/O Sh. J.K.Jain vs Indian Tourism Development ... on 12 February, 2007
-: 1 :-
IN THE COURT OF SH. SHAILENDER MALIK, CIVIL JUDGE, DELHI
Suit No. : 90 / 06 / 97
Sh. Sushil Kumar Jain S/o Sh. J.K.Jain,
R/o C-32, Shakti Nagar Extension,
Delhi - 110052.
Plaintiff.
Versus
Indian Tourism Development Corporation,
Through its Chairman-cum-Managing Director,
Scope Complex, 8th Core,
7, Lodhi Road,
New Delhi - 110033.
Defendant.
JUDGEMENT
1. This is a suit for declaration and mandatory injunction.
2. Facts as averred in the plaint are that plaintiff has been working as Asstt. Manager Engineering (Civil) since July 1984 with defendant Corporation and stated to have uninterrupted record of his service. It is stated that plaintiff was earlier posted in Ashok Yatri Niwas, Delhi vide order dt. 11.01.93. However, thereafter was ordered to be transfered to Udaipur vide order dt. 18.6.93 and was again transferred vide order dt. 12.07.93. It is alleged that above said frequent orders were passed just to fulfill the egos of -: 2 :- some individuals, who had vested interest. It is stated that in compliance of transfer order, plaintiff joined his duties at Bangalore vide joining report dt. 9.9.93 and at transferred place plaintiff had been performing his duty to the entire satisfaction of his superiors but since the climate of the Bangalore City was warm and humid, due to which plaintiff suffered some skin diseases and had to take leave and has come back the native place at Delhi on 13.1.94 where Plaintiff stated to have underwent the treatment of his skin disease through Chief Medical Officer of Lok Nayak Jai Parkash Narain Hospital (LNJP Hospital). Plaintiff was advised by the Chief Medical Officer to avoid humid climate till the plaintiff is fully recovered from his skin disease but plaintiff stated to have not fully recovered from his disease till the filing of the present suit and thus could not resume his duties. It is stated that defendant had served the plaintiff with charge sheet No.Per/D/SK(J)94 dt. 31.3.94 received to th plaintiff on 18.4.94, on which which plaintiff partly replied and also made the request to to furnish him the detailed medical report of Medical Officer of defendant. It is stated that earlier when plaintiff informed the defendant about his inability to resume his duty on account of -: 3 :- suffering skin disease, defendant asked the plaintiff to appear before Medical Officer of the defendant for his examination and to ascertain the facts. Accordingly, in response to the said memorandum, plaintiff appeared for his medical examination before Medical Officer on 19.7.94. However, plaintiff stated to have not been supplied with copy of report of above said Medical Officer of defendant.
3. Case of plaintiff further is that defendant had appointed one Inquiry Officer to conduct the Inquiry for the alleged charge sheet order No.PER/DISC/SKJ/94 dated 17.8.94, which was received to the plaintiff on 24.8.94. It is stated that plaintiff appeared before the Inquiry officer in Inquiry proceedings held on 2.2.95 and made request that he be furnished with all documents including the medical report of Medical Officer but defendant allegedly failed to furnish the said medical report and other documents. Plaintiff vide letter dt. 3.4.95 again requested the Inquiry officer that the Inquiry proceedings may be deferred till the case of the plaintiff is decided by Medical Board of Govt. Hospital. However, Inquiry Officer stated to have turned down the request of the plaintiff to refer the case of the plaintiff to Govt. Medical Board on the ground that -: 4 :- he has no power to refer the case to Govt. Medical Board. It is alleged that defendant and Inquiry Officer was biased against plaintiff and refused to refer the case of the plaintiff to Medical Board of Govt. through their letter dt. 14.3.95 received to the plaintiff on 4.4.95 and also letter of Inquiry Officer dt. 5.4.95. It is alleged that defendant with held the reference of case of plaintiff to the Govt. Medical Board with malafide intentions and held the Inquiry proceedings in violation of norms & provision and in fact inquiry proceedings were simple eye wash. It is alleged that holding of Departmental Inquiry in respect of above said charge sheet without referring the case of the plaintiff to Govt. Medical Board was patently illegal and resulted into miscarriage of justice. Defendant had no jurisdiction to carry on the departmental inquiry in the absence of reference of case of plaintiff to medical board. It is stated that earlier in this regard plaintiff challenged the above said illegal action of the defendant of not referring the case of the plaintiff to Govt. Medical Board by filing the suit for permanent and mandatory injunction, which was pending in the court of Civil Judge at the time of the institution of the present suit.
4. It is alleged that inspite of pendency of the above said suit -: 5 :- defendant being vindictive against plaintiff in order to achieve its illegal design completed the domestic inquiry without bothering the out come of he above said suit for injunction. It is alleged that during the pendency of the above said suit for injunction defendant never informed the court or the plaintiff regarding the holding of departmental inquiry and in fact defendant intention with hold the information with ulterior motive to harass the plaintiff . It is further stated that plaintiff made the representation against illegal and malafide actions of defendant. It is further stated that earlier similar departmental inquiries were being held at the Head Office of defendant i.e. at Delhi and not at the place of transfer but in the case of plaintiff the departmental inquiry was held at a place other than Head Officer. It is stated that this fact clearly show that defendant had been biased and was having intentions to harass the plaintiff and holding of inquiry at Bangalore was malafide and illegal. In this regard plaintiff stated to have made many requests for holding the inquiry at Delhi but was not considered by the defendant with the ulterior motive to harass the plaintiff. It is alleged that on the basis of alleged illegal inquiry, Inquiry Officer submitted the inquiry report -: 6 :- and thereafter defendant issued a notice dt. 8.1.94 calling upon the plaintiff to submit his reply and accordingly plaintiff made the representation against said inquiry report and denied the allegations in the said inquiry report. It is alleged that inquiry Officer was biased and Inquiry report was preversed and based on extraneous consideration and was not based on material and witnesses on the record. Moreover, Inquiry Officer failed to appreciate the fact that witnesses, who have been examined by the defendant were not as per the list of witnesses. In the inquiry, proceedings of principle of natural justice were violated and no opportunity was afforded to the plaintiff for redressal of his grievance and to constitute the Medical Board and for the purpose of giving expert opinion on the matter. It is alleged that action of the Inquiry Officer to decline the request of the plaintiff to supply the copies of medical report of defendant and not to constitute Medical Board was malafide and against the principles of natural justice, which shows that Inquiry Officer was biased against plaintiff and inquiry proceedings were conducted in arbitrary manner. It is stated that in the inquiry proceedings two witnesses were examined on behalf of -: 7 :- the management but Inquiry Officer and Presenting Officer changed the management witnesses as per the suitability without following the proper procedure and approval of the competent authority and without consent of the plaintiff.
5. It is alleged that it would be evident from the inquiry proceedings dt. 22.2.95 that in inquiry proceedings Presenting Officer and Inquiry Officer examined two management witnesses namely Anil Malik (General Manager of Hotel Ashok, Bangalore) and P.Ayyadurai (Manager Engineering and Civil, Hotel Ashok, Bangalore) whereas as per the charge sheet there were only two management witnesses namely Anil Malik and S. Chandra Mohan. Thus inclusion of witnesses P.Ayyadurai and exclusion of S Chandra Mohan caused suspicion in the inquiry. It is stated that statement of witness P.Ayyadurai is not sustainable and Inquiry Officer failed to appreciate the evidence of the management, which was concocted. It is stated that approach of the Inquiry Officer was biased in arriving the conclusion. It is further stated that Inquiry Officer failed to appreciate the fact and examined Dr. Naveen Singhal, who had medically examined the plaintiff on behalf of the defendant. Thus, -: 8 :- there was no material evidence filed on the record of inquiry against the plaintiff. Moreover, Inquiry Officer failed to take any decision on the medical report of L.N.J.P. Hospital, New Delhi. The said report has never been disputed till date by the defendant either in the court or else whereas, whereas there was ample evidence on the record of inquiry to show that climate of the Bangalore City was not suitable to the health of plaintiff but Inquiry Officer had not considered all these fact in evidence. This shows that Inquiry Officer acted biased and in arbitrary manner. It is further stated in the inquiry proceedings dt. 22.3.95 that Presenting Officer of the defendant informed since Bangalore City is not a coastal town and thus is not humid place and its humid level is less than that of New Delhi. This statement of the Presenting Officer was in reference of management Ex.No.M-10 i.e. communication of General Manager, Hotel Ashok, Bangalore to plaintiff. It is stated that this statement was confirmed by the General Manager, Hotel Ashok in the evidence and on this aspect said witness was not cross- examined nor any documentary proof or report of Metrological Department of Bangalore was submitted . All these facts shows that the statement was without logic -: 9 :- and basis. On the other hand, plaintiff had informed the defendant that Bangalore is a warmed and humid place whereas Delhi is a dry city and this fact can confirmed from Building Research Note published by Central Building Research Institute, Roorkee (India). It is further alleged that Inquiry Officer has over looked the fact that management was bent upon the victimise the plaintiff by putting up false statement and witnesses and evidence.
6. It is stated that representation/reply dt. 14.2.96 to the inquiry report was not considered and services of the plaintiff were terminated vide order dt. 29.3.06 whereas such order was passed by person, who was not competent in law to pass this order. Thus said order was illegal. Plaintiff stated to have challenged the above said order by way of appeal to Chairman-cum-Managing Director of ITDC. However, appeal was also dismissed by a stereo type order without application of mind. It is further alleged that defendant had not paid any financial assistance through out the period of domestic inquiry. Thus inquiry was illegal and biased and thus the action of the defendant to terminate the service of plaintiff was also illegal. Hence the present suit was filed with the prayer for decree of declaration to declare that departmental -: 10 :- inquiry was illegal, malafide and arbitrary and also to declare that order of terminating of services of plaintiff dt. 29.3.96 and 27.5.06 was illegal. Plaintiff has also prayed for decree of mandatory injunction thereby directing the defendant to reinstate the plaintiff in service with full back wages and continuity with all consequential benefits.
7. On behalf of the defendant written statement was filed taking the objection that suit is not maintainable. Moreover, no notice U/s.80 CPC was given to the defendant prior to the institution of present court. The Civil court has no jurisdiction to entertain the matter. Moreover, plaintiff is seeking to recover the money by the present suit without furnishing the proper court fees and plaint has not been properly verified. While taking the case of the plaintiff on merits, it is stated that leave application of the plaintiff was rejected vide order dt. 23.12.93 but plaintiff left the station of his posting without permission despite the fact that he was advised to remain at the place of posting. While denying the fact regarding medical ailment it is pleaded that Joint Manager, Hotel Ashok, Bangalore had advised the plaintiff to report to Medical Officer Sh. V.Patil for necessary check up but plaintiff did not report to said Medical Officer and proceeded on leave -: 11 :- unauthorisedly. However, it is admitted that plaintiff had filed the reply to the charge sheets vide letter dt. 28.11.94 but it is denied that any request for medical report was ever made by tho plaintiff. It is stated that Medical Officer of the defendant after examining the plaintiff and previous medical record opined that plaintiff never suffered any disease as alleged. It was also revealed that plaintiff was only advised by treating doctor to avoid direct exposive sunlight and humid climate. While denying all the grievance of plaintiff of not providing medical report and other documents. It is pleaded that infact plaintiff was provided each and every documents including the report of Medical Officer. It is pleaded that inquiry proceedings were carried out strictly in accordance with law and procedure and as per the principles of natural justice and Inquiry Officer conducted the inquiry independently. It is also stated that name of management witnesses to be Anil Malik and Sh. Chander Mohan were mentioned. However, name of P. Ayyiadurai was added being necessary and relevant witness in the inquiry and at that time no objection was raised by the plaintiff. It is pleaded that Inquiry Officer considered each and every documents placed before him and due weight -: 12 :- was given on each document and inquiry was conducted in lawful manner. Infact plaintiff tried to delay inquiry proceedings by one pretext or the other. It is also stated that infact plaintiff has been disobedient to superiors and never cooperated in the inquiry proceedings. While denying the case of the plaintiff, it is stated that Inquiry report is lawful and the case of the plaintiff is not sustainable.
8. Plaintiff filed the replication, wherein the pleadings of the defendants were controverted. Plaintiff reiterated his case as set out in the plaint.
9. Upon completion of pleadings, following issues were settled on 21.5.99:
i) Whether the plaintiff is entitled for equitable relief of declaration as prayed for ? OPP
ii) Whether the plaintiff is entitled for equitable of mandatory injunction as prayed for ? OPP
iii) Relief.
10. On behalf of the plaintiff one witness has been examined i.e. Plaintiff himself as Pwl Sh. Sushil Kumar Jain whereas on behalf of the defendant two witnesses were examined. -: 13 :- Dwl is Sh. S.P.Sabharwal and DW2 is Sh. B.S.Gosain.
11. It appears from the record that in the course of trial upon the objection taken by the defendant. Ld. Predecessor of this court vide his order dt. 22.3.04 settled one preliminary issue regarding maintainability of the present suit as :
"Whether the suit of the plaintiff is not maintainable being barred by Specific Relief Act ?"
12. On the above said issue ld. Predecessor of this court vide his order dt. 26.5.03 gave the finding that the suit is maintainable in view of the judgment of Hon'ble Apex Court in Ram Sahan Rai Vs. Sachiv Samanaya Prabandhak 2001 AD (SC)350.Thus the question of maintainability of the suit had attained the finality.
13. I have heard the counsels for the plaintiff and defendant has also gone through the written submissions filed on behalf of the plaintiff and defendant. My findings on each issue are following.
ISSUES NO.1 & 2
14. Issues No.l & 2 are being taken up together. Onus of proving both the issues was on plaintiff. Plaintiff has appeared in the witness box. Pwl Sushil Kumar Jain has -: 14 :- testified that he joined the defendant corporation in July 1984 and was frequently transferred. Pwl says that he was transferred from Ashoka Hotel to Ashoka Yatri Niwas in January 1993 and in June 1993 he was again transferred to Udaipur and in July 1993 he was transferred to Bangalore where he remained upto December 1993. Pwl further testifies that he suffered some skin disease in Bangalore on his forehead and for the treatment of skin he came to Delhi and remained under treatment in LNJP Hospital as OPD patient. Pwl proved his OPD card as Ex. PW1/1. Pwl further testifies that as per medical advice his disease was so serious due to humidity climate. He further states because of his ailment he could not report for his duty. Defendant served him charge sheet and departmental inquiry was initiated. He states that he participated in the inquiry in which he made the request to provide him the medical report but defendant did not supply the copy of medical report. Pwl says that defendant has illegally terminated his services.
15. Before going into the cross-examination of the PW1 it is pertinent to mention that evidence of PW1 does not prove his case in complete and PW1 has very surprisingly testified only above said facts in his half page of -: 15 :- examination in chief and has not been substantiate all those facts as are pleaded in the plaint specifically when plaintiff is asking for the relief of declaration to declare the Inquiry report to be null and void but in this regard in the evidence of Pwl nothing has come to show that why the inquiry report be declared to be null and void although in the plaint which runs into 15 pages comprising 48 paras but the examination in chief of Pwl is half page, wherein Pwl did not bother even to substantiate the necessary facts pleaded in the plaint. Thus it can be concluded that plaintiff has not been able to establish his case.
16. Even if we go through the cross-examination of Pwl in the cross-examination PW1 testifies that after obtaining the medical advice he did not join his duty at Bangalore. He further says that though he informed in this regard to the defendant but does not remember the date. He further says that he has not placed on record any copy of the such information on record. Pwl further admits that he has appeared in the inquiry proceedings and Inquiry Officer gave him some documents, in which he made the acknowledgment also. He also admits that he did not appear before Inquiry Officer on 22.2.95. Pwl also admitted that he had received all the documents -: 16 :- mentioned in the inquiry report. He also admits that defendants vide letter dt. 12.1.94 had told him that he is not required to leave the station because his leave application has been cancelled. PW1 also admits that defendant had advised him to consult the doctor of defendant for treatment and he never consulted the defendant doctor at Bangalore. He also admits that he left the Bangalore without obtaining any permission from the defendants and without handing over charges to anybody. PW1 also admits that he never availed any medical leave during his tenure at Bangalore. PW1 also admits that committee consisting of Manager (Personal), Manager (EC), Manager (W&S) came to his residence and served him the memo. Same was replied. He also admits that he was well aware that the said committee was not authorised to permit him to leave the station. Pwl says that he is presently doing his business.
17. After appreciating the complete evidence of Pwl as noted above plaintiff failed to establish in his examination in chief the necessary facts as pleaded in the plaint like reply to the Inquiry Officer, application demanding the medical report, application for conducting the inquiry at Delhi City. All these necessary facts are though pleaded in -: 17 :- the pliant but not proved in the evidence of Pwl. Moreover, in cross-examination plaintiff has rather corroborated the case of the defendant corporation by admitting the fact that he proceeded on leave without permission and by also admitting the facts he was supplied all those documents, which was lying on the inquiry file.
18. Let us appreciate the evidence led on behalf of the defendant corporation. Dwl S.P.Sabharwal, who is Inquiry Officer. Appointment of letter as Inquiry Officer is Ex.DW1/1, Officer order is Ex.DW1/2. Inquiry report has been furnished, which is Ex.DW1/3, Dwl was duly cross- examined. However, nothing substantive could come out in the cross-examination of Dwl. Similarly, DW2 has testified in his affidavit of examination in chief that plaintiff Sushil Kumar Jain was working as Assistant Manager and his purpose was not up to the level and therefore, he was served with advisory memo and charge sheet Ex.DW2/1 to 3 . DW2 further testifies that on 22.12.93. Plaintiff applied for leave for the period of 80 days. Said leave was refused vide office letter dt. 12.1.94 and he was advised to remain at the place of his posting but plaintiff left the place of posting without permission. Said letter is Ex.DW2/4. DW2 -: 18 :- further said that plaintiff never submitted any certificate of Chief Medical Officer of L.N.J.P.Hospital, wherein plaintiff was advised to avoid staying at Bangalore. Dwl says that plaintiff was directed to report to Chief Medical Officer of defendant corporation but he did not do so at once and reported on 15.7.94 and all his claims of his ailment were found false. Dwl says that charge sheet was served upon, regarding which plaintiff filed the reply. His reply was duly considered by the authorities but the same was not found to be satisfactory. Therefore, departmental inquiry was constituted and Sh. S. P. Sabharwal was appointed Inquiry Officer, who conduced his inquiry as per principal of natural justice. DW2 further says that all the necessary documents were provided. DW2 further says that after the inquiry report the services of the plaintiff was terminated, regarding which plaintiff had filed the appeal and competent appellate authority had dismissed the appeal.
19. DW2 was duly cross-examined also but in the cross-
examination again I do not find any substantive aspect rendering the testimony of DW2 to be unreliable specifically in the light of admission made by the plaintiff in his cross-examination when plaintiff has admitted that he was provided all the documents in inquiry and plaintiff -: 19 :- has failed to establish any medical report, which shows that he suffered skin disease because of staying at Bangalore and on the other hand, the medical report of defendant corporation shows that he was fit to be in his place of posting. All these facts shows that plaintiff has failed to establish necessary facts for rendering the inquiry report to be illegal and consequential termination order to be illegal. Thus, for the reasons discussed above both the issues are decided against the plaintiff.
RELIEF
20. In view of my findings on the above said issues, suit of the plaintiff stands dismissed. Decree Sheet of dismissal be prepared accordingly. File be consigned to Record Room.
PRONOUNCED IN OPEN COURT ON 12.2.2007 (Shailender Malik) Civil Judge, Delhi