Delhi District Court
Sh. Kamleshwar Dubey vs Sh. Ahrafi Lal on 20 July, 2010
IN THE COURT OF MS NIYAY BINDU, CIVIL JUDGE (WEST) TIS HAZARI
DELHI
Suit No. 433/2002
SH. KAMLESHWAR DUBEY
S/O SH. SARJU DUBEY
R/O- VILLAGE-GOKULPUR,
P.O. GOKULPURI, SHAHDARA,
DELHI-110094.
............................PLAINTIFF
VERSUS
1.SH. AHRAFI LAL
C/O OFFICE OF COMMISSIONER,
UNDER THE WORKEN'S COPENSATION ACT,
NEAR TIS HAZARI COURTS, DELHI-110054.
2. MS. ASHOKA JAIN, ADVOCATE,
R/O-108, MODEL BASTI, NEW DELHI-110005.
...........................DEFENDANTS
DATE OF INSTITUTION : 05.04.1988.
DATE ON WHICH RESERVED : 20.07.2010
DATE OF DECISION : 20.07.2010
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PETITION UNDER ORDER XXXIII RULE 1 CPC FOR LEAVE TO SUE IN
FORMA PAUPERIS THE RESPONDENTS FOR THE RECOVERY OF
DAMAGES.
EX - P A R T E J U D G M E N T :-
1. Vide this judgment, I shall dispose off the present suit for the recovery of damages filed by the plaintiff.
2. Briefly stating the facts of the case, the petitioner was employed in Northern Railways, New Delhi and was being wrongly and illegally dismissed from the services by the officials of the Railways in May 1974 and he filed a Civil Suit for challenging the said dismissal which was decreed in his favour whereby declaring the dismissal to be illegal and the petitioner was held entitled to all service benefits.
3. It is stated that the first and the second appeal against the said judgment as well as the SLP filed before the Hon'ble Supreme Court were dismissed.
4. It is stated that in the meantime, the petitioner served the General Manager, Northern Railways with several notices for taking him back on duty KAMESHWER DUBEY V/s ASHRAFI LAL & ANR. -::2/11::-
and also to pay him the back wages and other service benefits, but neither he was taken on duty nor the wages were paid.
5. It is stated that thereafter, the petitioner filed a petition under Section 15 of the Payment and of Wages Act wherein the whole amount of the wages were being awarded in favour of the plaintiff and he was also awarded a penalty for a sum of Rs. 1,00,000/-against the Union of India.
6. Thereafter, the said order was being challenged in appeal and the amount of Rs. 1,50,591.42/- was deposited by the Union of India in compliance of the order dated 06.05.2007 of Additional District Judge and upon the dismissal of the said appeal, the said amount was bound to be paid to the petitioner by respondent no. 1.
7. It is stated that the petitioner also filed an application dated 01.04.1987 before the Respondent No.1 for release of the said amount but vide order dated 02.04.1987, it refused to release the said amount and the respondent no. 1 orally stated that the judgment dated 07.08.1985, of his Predecessor was not binding upon him and he would de novo try the case and come to his own findings whether the petitioner was entitled for the said wages or not?
8. It is stated that the petitioner again filed an application dated KAMESHWER DUBEY V/s ASHRAFI LAL & ANR. -::3/11::-
03.04.1987 whereby submitting that the order dated 02.04.1987 of the respondent was highly illegal and an abuse of power, but this application was rejected by respondent no. 1 illegally and the petitioner thereafter filed a Civil Writ Petition before the Hon'ble High Court of Delhi for quashing of order dated 02.04.1987 of respondent no. 1 and for release of the amount in deposit, but the respondent no. 1 got the petition dismissed by making a number of allegations against the petitioner in their reply through misrepresentations.
9. It is stated that respondent no. 2, who was acting as counsel for the respondent no. 1 before the Hon'ble High Court of Delhi, tried to delay the disposal of the Writ Petition and also made wrong submissions before the Court, but ultimately on 27.05.1987, after the hearing of the Writ Petition, the respondent no. 1 withdrew the illegal order dated 02.04.1987 and the High Court directed the deposited amount to be released in favour of the petitioner.
10. It is alleged that the respondent no. 1 again refused to release the amount whereby saying that the High Court Orders were not binding upon him and that he would pay the amount to the petitioner only when the application of Union of India for setting-aside the order dismissing their petitions was decided.
11. It is stated that the petitioner again moved an application KAMESHWER DUBEY V/s ASHRAFI LAL & ANR. -::4/11::-
personally before the respondent no. 1 who agreed to release the amount and the petitioner was informed that a stay order of the Hon'ble High Court of Delhi was received on that date about the payment of Rs. 1,00,000/-, but the respondents again illegally refused to pay the amount and this non-payment has caused wrongful loss and damages to the petitioners.
12. On the basis of these submissions, the plaintiff has claimed for damages for a sum of Rs.25,917.74/- against the defendants on the following counters:-
(i) Loss of interest at the rate of 18% p.a. on the entire amount of Rs. 1,80,591.42/- paise from 01.04.1987 to 31.05.1987 ..............Rs. 5,417.74/- paise.
(ii) Expenses incurred on the Writ Petition No. 1042/87 and another applications moved before respondent no. 1 ........Rs. 5,500/-.
(iii) Damages on account of mental torture agony, unnecessary expenses for going and coming to Delhi Courts again and again from petitioner's place to pursue the writ petition etc...........Rs.
15,000/-.
13. In this matter, the defendant no. 2 failed to put any defence but KAMESHWER DUBEY V/s ASHRAFI LAL & ANR. -::5/11::-
only respondent no. 1 filed a brief reply whereby stating that the suit is not maintainable under the statutory provision contained in Section 22 A of the Payment of Wages Act.
14. It is also stated that the amount of the wages as claimed by the plaintiff has already been determined by the authority under the Payment of Wages Act and the amount has also been deposited which had duly been disbursed in favour of the petitioner vide cheque No. A/20/523499 dated 01.06.1987 for a sum of Rs. 80,591.40/- and another cheque bearing No. 129469 dated 08.09.1987 for a sum of Rs. 1,00,000/- respectively and all these acts have been done by the authority in good faith.
15. The petitioner also filed a rejoinder with respect to the reply of respondent no. 1 wherein it is stated that Section 22 A of the Payment of Wages Act is not applicable to the present case.
16. Rest of the contents of the reply are being denied and the submissions already made in the petition are being reiterated and reaffirmed.
17. In this matter defendant No. 2 failed to appear and both the defendants proceeded ex parte by the Ld. Predecessor vide order dated 31.07.1998.
18. I have perused the entire case file and heard the arguments on KAMESHWER DUBEY V/s ASHRAFI LAL & ANR. -::6/11::-
behalf of the plaintiff.
19. In order to prove this case, the plaintiff has depose before the Court as PW-1 and proved on record certain documents such as; Ex. PW-1/4 is the notice dated 04.06.1987 and Ex. PW-1/5 is the Acknowledgment Card with respect to the same, another witness was also examined by the plaintiff as PW-2 who produced the file in respect of Writ Petition which was being filed by the plaintiff before the Hon'ble High Court of Delhi and the Order of the Court dated 27.05.1987 was proved as Ex. PW-2/1 and the original Writ Petition was proved as Ex. PW-2/2.
20. The foremost question that needs to be determined in this suit is to ascertain whether the defendant could be said to have violated the legal right of the plaintiff, more specifically, under the circumstances when the defendant no. 1 (as "Authority" under the payment of Wages Act) has been exercising the powers vested in him. The protection against any suit, prosecution or legal proceedings has been provided to the officer of the Government, acting under the said Act as provided in Section 22 a which states as under:-
Bar of suits- "No court shall entertain any suit for the recovery of wages or of any deduction from wages insofar as the sum so claimed:-
KAMESHWER DUBEY V/s ASHRAFI LAL & ANR. -::7/11::-
(a) forms the subject of an application Under Section 15 which has been presented by the plaintiff and which is pending before the authority appointed under that section of of an appeal under section 17."
It is the settled proposition of law that no act of an officer, who is acting in pursuance of the provisions of law, can be challenged on the ground of his erroneous execution of that act until it is done for want of good faith and motivated by malice.
21. The plaintiff intends to prove the elements of mala fide and malice by showing the conduct of the defendant no. 2. It is stated in the evidence of PW-1 that though the defendant no. 2 had declined to release the amount on the basis of untenable ground that interim order dated 04.05.1986 passed by Ld. ADJ was still in force, defendant no. 2 did not correct the same but rejected the application dated 09.04.1987 filed by the plaintiff clarifying the position of law. But the plaintiff has not filed any certified copy of the order passed on this application in order to prove the conduct of the defendant no.
2. Further the plaintiff has not moved any primary or secondary evidence of the application dated 01.04.1987 which he is calling as Ex. PW-1/1, the order dated 02.04.1987 which he is calling as Ex. PW-1/2 and application dated 09.04.1987 which he is calling as Ex. PW-1/3 in the evidence but he has KAMESHWER DUBEY V/s ASHRAFI LAL & ANR. -::8/11::-
failed to prove these documents as only photocopies of the same have been filed on record.
22. It is contended by the Ld. Counsel for the plaintiff that photocopies have been compared with the records brought by the Clerk of the Hon'ble High Court of Delhi who had deposed as PW-2 and, thereby, these documents have been legally proved. But it is not the correct position of law, the photocopies placed on record have been compared only with the copies of these documents placed on record of Hon'ble High Court whereas these photocopies ought to be compared with the originals in order to prove the same. Therefore, no inference could be drawn in favour of the plaintiff in the absence of the order dated 09.04.1987 passed by defendant no. 1.
23. In view of the above discussion, it is concluded that the plaintiff has failed to establish his case due to lack of evidence and therefore, the same stands dismissed.
24. No order for costs. Decree sheet be prepared accordingly. File be consigned to Record Room after necessary formalities.
ANNOUNCED IN THE OPEN COURT (NIYAY BINDU)
TODAY i.e. ON 20th JULY, 2010. CIVIL JUDGE:WEST
DELHI:20.07.2010.
KAMESHWER DUBEY V/s ASHRAFI LAL & ANR. -::9/11::-
Suit No. 433/02
20.07.2010.
Present: None.
Nobody is appearing for clarification.
Therefore, put up for orders at 4.00 P.M.
(NIYAY BINDU)
CIVIL JUDGE:WEST
DELHI: 20.07.2010.
Time 4.00 PM
Present: None.
Vide my ex-parte judgment of even date, the suit of the plaintiff stands dismissed. Decree sheet be prepared accordingly. File be consigned to Record Room after necessary formalities.
(NIYAY BINDU) CIVIL JUDGE:WEST DELHI:20.07.2010.
KAMESHWER DUBEY V/s ASHRAFI LAL & ANR. -::10/11::-