Delhi District Court
Ms. Madhu Mallick vs Nehru Bal Samiti (Regd.) on 9 January, 2019
IN THE COURT OF MS. RICHA SHARMA, CIVIL JUDGE01
(WEST), TIS HAZARI COURTS, DELHI
CS SCJ No. 12462/16
Date of Institution : 04.01.2005
Date of reservation of judgment : 20.12.2018
Date of pronouncement of Judgment : 09.01.2019
Ms. Madhu Mallick,
D/o Late Sh. R.S. Mallick,
R/o Room No. 9, Nehru Bal Samiti (Regd.),
Opposite R 2, South Extension, Part 2,
Masjid Moth, New Delhi.
.......... plaintiff
vs
1. Nehru Bal Samiti (Regd.)
Through its Secretary/Director,
Sh. S. P. Govil,
Address : E 63, South Extension, Part 1,
New Delhi 110 049
2. Sh. Narender Multani,
Director & Administrator,
Nehru Bal Samiti (Regd.),
Opposite R 2, South Extension, Part 2,
Masjid Moth, New Delhi.
..............Defendants
SUIT FOR DECLARATION AND MANDATORY INJUNCTION
UNDER SECTION 38 OF THE SPECIFIC RELIEF ACT R/W
SECTION 10 OF THE SPECIFIC RELIEF ACT READ WITH
ORDER 39 RULE 1 AND 2 OF THE CPC
JUDGMENT
1. Factual matrix of the present suit as per the plaint is that, plaintiff is SCJ No.12462/16 Madhu Mallick Vs. Nehru Bal Samiti (Regd) Page no. 1 of 17 working in capacity of a resident teacher at the Nehru Bal Samiti, Vocational Educational Department. It is stated that the work of the plaintiff comprised of taking English speaking classes for the students of vocational institution of the Nehru Bal Samiti and also of taking classes of the students of N.I.O.S, who come to Nehru Bal Samiti for coaching.
2. It is averred that defendant No. 1 is a registered society and Sh.
S.P. Govil is the secretary and founder member and defendant no. 2 is the Director and Administrator of defendant No. 1.
3. It is averred that in July, 2004 Mr. Narendra Multani, made an offer to the plaintiff to join defendant No. 1, as a resident teacher initially for three years, subject to further extension. It is contended that considering the experience of the plaintiff, she was directly appointed as a resident teacher with defendant No. 1 and that latter was not appointed as a probationer but was directly appointed as a resident teacher and her appointment was confirmed. It is averred that, defendants verbally assured the plaintiff a salary of Rs. 3,000/ in hand and apart from this, she was assured that she will be given appropriate accommodation free of cost and will also be provided with one time meal, which was stated to be a part of the service condition of the plaintiff.
4. It is further averred that considering the offer of defendants, plaintiff joined defendant No. 1 in the month of July 2004 and though the plaintiff was assured that she will be given a letter of SCJ No.12462/16 Madhu Mallick Vs. Nehru Bal Samiti (Regd) Page no. 2 of 17 appointment for a period of three years initially but the defendants neither gave her the appointment letter nor did they signed the contract for three years. It is stated that prior to joining defendant No. 1, plaintiff was working in Saraswati Brahma Devi Balika Vidyalaya at Hapur. It is averred that plaintiff would not have left the job at Hapur but for the assurances given by defendant No. 2 on behalf of defendant No.1. It is stated that one of the main inducement for the plaintiff towards joining the defendants was the fact that she will be given free accommodation and meal. It is stated that on 01.07.2004, plaintiff joined Nehru Bal Samiti and was also given the residential accommodation on the said premises on the same day.
5. It is also averred that plaintiff was paid her salary by way of cash vouchers, meaning thereby that plaintiff was paid in cash in her hand and defendants obtained a voucher from the plaintiff. It is stated that defendants/respondent No. 1 and 2 with malafide intentions stopped giving plaintiff her salary, midday meal from January, 2005 and further stopped assigning her work as a counter blast of the present suit. It is stated that the work of the plaintiff is satisfactory and there is no complaint against the plaintiff. It is further averred that till November, 2004 defendants had no problems with the plaintiff and in the month of November 2004, defendants organized a Bal Mela and for the same, they published certain tickets but failed to sell the same and realized that they would not be able to generate sufficient funds from the Bal Mela, therefore, defendants forced and coerced the students of the NIOS SCJ No.12462/16 Madhu Mallick Vs. Nehru Bal Samiti (Regd) Page no. 3 of 17 to purchase the booklets of tickets. It is stated that each booklet of tickets consisted of 20 tickets of Rs. 5/ each and defendants and their officials also blackmailed the students by withholding their identity cards, books and by closing the gates and the said incident was objected to by the plaintiff and objection of plaintiff was not liked by the defendants and their officials, specially defendant No.
2. It is further the case of the plaintiff that defendant No. 2 threatened the plaintiff that, if she wants to continue with her job then she would have to keep quiet and not interfere in the administrative matters of the institution. It is stated that thereafter, defendant No. 2, started creating problems for plaintiff by several means like scolding and quarreling with her over small matters and it was only on 10.12.2004, when plaintiff received her salary for the month of November.
6. It is stated that on 15.12.2004, plaintiff was asked by defendant No. 2 to vacate the said premises on the ground that the said room was needed for some other purpose and was asked to make alternate arrangements for her accommodation. It is stated that defendant No. 2, is not allowing plaintiff to take her classes and is himself taking classes and also from 01.01.2005, pursuant to the order of defendant No. 2, the meal which was being given to the plaintiff was stopped. It is stated that on 16.12.2004, plaintiff had informed the Secretary of defendant No. 1 with regard to her problems and he assured her that he would look into the problems but till date no action has been taken. It is stated that if defendants had not given her verbal assurances of giving residential accommodation, plaintiff SCJ No.12462/16 Madhu Mallick Vs. Nehru Bal Samiti (Regd) Page no. 4 of 17 would not have left her job at Hapur.
7. It is stated that defendant No. 1/society is discharging public functions of imparting vocational educations and it had entered into an agreement with NIOS under Ministry of Human Resources and Development, Government of India for conducting public examinations with NIOS under the MHRD. Hence, the present suit.
8. By way of the present suit, plaintiff has prayed for :
a) A decree of permanent injunction in favour of the plaintiff restraining the defendants from terminating the services of plaintiff before the expiry of the period of three years.
b) Restraining the defendants from dispossessing the plaintiff from her residential quarter without due process of law.
c) Restraining the defendants from terminating the services of the plaintiff and from dispossessing the plaintiff from her residential accommodation.
d) Salary of the plaintiff of Rs. 3000/ per month plus other benefits plus interest since January, 2005 be given to the plaintiff and assigning of teaching work to her.
e) Extension of contract of three years.
f) Orders for damages for wrongful breach of contract and damages/compensation or stigma which may cause the petitioner/plaintiff loss in future employment.
g) Any other relief/reliefs which this Hon'ble court deems fit and proper in favour of the plaintiff.
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9. In the amended written statement filed by defendant No. 1, preliminary objections were raised by the defendant wherein it is stated that plaintiff has filed the said suit against the defendants with malafide intentions for harassing the defendants and for occupying some space in the Samiti's premises, which is not maintainable in the eyes of law. It is further contended that as per provisions of Order 7 Rule 11 CPC, the plaint of the plaintiff is liable to be rejected with cost. It is stated that the suit has not been instituted as per provisions of Section 26 of the CPC. It is stated that the facts stated in the plaint are not true and supported by an affidavit of the plaintiff as required under Section 26 (2) of amended CPC. It is stated that plaintiff has not filed a detailed affidavit thereby not verifying the pleadings as per provisions of Order 6 Rule 15 (4) CPC. It is averred that the plaint is liable to be rejected as per provisions of Order 7 Rule 11 (a) CPC as it does not disclose a cause of action against the defendant. It is contended that the suit of the plaintiff is barred by law as the claim is solely based on one letter dated 29.11.2004, which she had fraudulently obtained from defendant no. 2, Mr. Narender Multani, Incharge (Admn.) and not Director (Admn.) as mentioned in the plaint. It is also stated that she is claiming that she is a teacher, though she does not possess any requisite qualification for a teacher nor any qualification to be as an instructor for any course under Vocational Training Programme run by Nehru Bal Samiti. It is averred that the suit of the plaintiff is barred under Section 25 of the Delhi School Education Act. It is stated that the appropriate forum/court competent to try the present suit is the Ld. Educational SCJ No.12462/16 Madhu Mallick Vs. Nehru Bal Samiti (Regd) Page no. 6 of 17 Tribunal. It is also averred that the suit is barred by the provisions of Section 41 (h) of the Specific Relief Act as efficacious remedy , if at all available to an employee is appropriate proceedings before the Educational Tribunal not before this court. It is stated that the suit is barred under Order VII Rule 11 (d) CPC. It is further stated that plaintiff is not an employee and had been an honorary worker for which honorarium had already been paid.
10.It is contended that the plaintiff voluntarily came and offered her honarary services to Nehru Bal Samiti in the month of June, 2004 and gave her honorary services for few days and then disappeared without any intimation. It is further averred that Nehru Bal Samiti is a registered Society under the Societies Registration Act XXI of 1860 and is running unaided recognized primary school upto class Vth namely Bal Vikas Vidyalaya, Masjid Moth recognized by Educational Department, NCT, Delhi. It is further contended that Nehru Bal Samiti is running secondary classes through personal contact programme recognized by National Institute of Open School and under vocational training programme is imparting training i.e. hand crafts, computer literacy, secretarial practices etc. and the honorary services of the plaintiff was taken by the Nehru Bal Samiti for personal contact classes, at the discretion of the coordinator of the programmer of contact classes of National Institute of Open School, New Delhi an agency of the Government of India for promoting educational programs for dropout etc. to improve their future prospects. It is stated that the honorarium for the services rendered for Personal Contact Programs from SCJ No.12462/16 Madhu Mallick Vs. Nehru Bal Samiti (Regd) Page no. 7 of 17 September, 2004 to December, 2004 total 25 classes @ Rs. 72/ per class is as prescribed by NIOS and a total payment of Rs. 1800/ has been paid to plaintiff by crossed cheque No. 182074 dated 25.05.2005 of Syndicate Bank, INA, New Delhi. It is stated that there is no provision of anyone's stay except chowkidar and there is no post of Resident Teacher, specially when plaintiff has worked on hourly basis. It is contended that under the garb of this injunction order, plaintiff is creating nuisance making false complaints to the police at odd hours. It is stated that the plaintiff was only a part time honorary worker giving her honorary services on hourly basis and not a whole time teacher/ employee on regular basis. It is stated that instead of teaching English to the children of personal contact program recognized by NIOS on hourly basis on Saturday and Sunday only in a week, plaintiff was concentrating on watching matrimonial advertisement for herself. It is stated that neither the plaintiff is paying any rent nor electricity and water charges and plaintiff was given residential accommodation and space only for her short stay and she is claiming the same as a right for which she is not legally entitled and is trying to find out different methods by filing one application after another.
11.In rest of the reply on merits, the averments made by the plaintiff in the plaint were categorically denied by defendant no. 1 and prayer is made for dismissal of suit with cost.
12.Though, amended WS was not filed on behalf of defendant no. 2 SCJ No.12462/16 Madhu Mallick Vs. Nehru Bal Samiti (Regd) Page no. 8 of 17 but in the earlier WS filed by defendant No. 2, it is contended by him that he was rendering his honorary services to Nehru Bal Samiti (Regd) R2 South Extention Part II, New Delhi 110 049 and working as incharge administration. It is also averred that Ms. Madhu Malick made a request to him to issue a letter for opening a Bank Account and subsequently he issued a letter dated 29.11.2004. It is also accepted by him that defendant No. 2 have exceeded his jurisdiction in issuing this letter to Ms. Madhu Mallick which she fraudulently obtained from defendant No. 2. It is stated that the plaintiff does not even possess the requisite qualification required for a teacher and has not even shown her original educational certificates or photocopies at the time of giving her honorary services till date.
13.It is stated that Ms. Madhu Mallick voluntarily came and offered her honorary services from June 2004, with the clear understanding that she will adhere to the code of conduct of the Samiti in the volunteer spirit as long as the Samiti wants. It is stated that plaintiff was accommodated in Nehru Bal Samiti Vocational training centre on a monthly honorarium of Rs. 3000/ per month and was granted a temporary stay for few days in Nehru Bal Samiti. It is stated that the honorary services of the plaintiff were taken by the Nehru Bal Samiti for nonformal education in personal contact programme recognized by National Institute of Open School from September 2004 to December 2004, total 25 classes rate @ Rs. 72/ per class as prescribed by NIOS and payment of Rs. 1800/ was made to the plaintiff vide cheque No. 182074 dated 25.05.2005 of Syndicate SCJ No.12462/16 Madhu Mallick Vs. Nehru Bal Samiti (Regd) Page no. 9 of 17 Bank, INA, ND. It is also contended that her honorarium for vocational training programme was already paid on monthly basis @ Rs. 3000/ pm from July 2004 till December, 2004 on 05.01.2005 and in the month of November, 2004 plaintiff was informed that her services were no longer required. In rest of the written statement, the averments made by the plaintiff in its plaint were categorically denied by defendant No.2.
14. Perusal of the record shows that issues have been framed in the present matter thrice by the Ld. Predecessors of this court. Initially, vide order dated 13.03.2006, the following issues were framed by the then Ld. Civil Judge:
1. Whether the suit is hit by the provisions of Section 14 (2) and Section 41 (e) of the Specific Relief Act, 1963? OPD
2. Whether the plaintiff is entitled for decree of permanent injunction as prayed for? OPP.
3. Relief.
15. Secondly, vide order dated 21.07.2009, following issues were framed:
1. Whether the plaintiff is entitled to the discretionary relief of permanent injunction, as prayed for? OPP.
2. Whether the plaintiff is entitled to the salary of Rs.3,000/ per month along with other benefits and interest? If so, for what period and at what rate? OPP.
3. Relief.
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16.Thereafter, lastly vide order dated 17.12.2013, following issues were framed by the then, Ld. Civil Judge:
1. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for in prayer clause
(a) of the plaint? OPP.
2. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for in prayer clause (b) of the plaint? OPP. (the third relief has been sought during the pendency of the suit and therefore, being interim relief, no issue is required to be framed regarding third relief)
3. Whether the plaintiff is entitled to the relief of recovery as prayed for in prayer clause (d) of the plaint? OPP.
4. Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for in the prayer clause (e) of the plaint? OPP.
5. Whether the plaintiff is entitled to the relief of damages as prayed for in prayer clause (f)? OPP.
6. Whether the suit is hit by provisions of Section 14 (2) and Section 41 (e) of the Specific Relief Act, 1963 in view of preliminary objection No. 6 of WS? OPD.
7. Whether the suit is barred by Section 25 of Delhi School Education Act? OPD
8. Any other relief.
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17. It is apposite to state that during the course of trial plaintiff preferred various applications one after another to protract the matter and the conduct of the plaintiff is apparent from various ordersheets passed by the then Ld. Civil Judges. Keeping in view the extreme lackadaisical conduct of the plaintiff, vide order dated 02.09.2015, Ld. Predecessor of this court had granted three opportunities to the plaintiff for completing her evidence. However, first and second opportunity to lead PE was not availed by the plaintiff and only on the last opportunity plaintiff got her examination in chief conducted, whereby in order to prove her case, plaintiff examined herself as PW1 (Ms. Madhu Mallick) (Madhulata Mallick) and tendered in evidence her duly sworn in affidavit exhibited as Ex.PW1/A, reiterating the contents of the plaint. In her testimony the following documents were exhibited : Sr. Nature of documents Exhibited No. as 1 Copy of lease deed. Mark A 2 Photograph of inauguration stone of defendant Mark B institute is 3 Certified copy of auditor's report Mark C 4 Copy of certificate of diploma of secretarial Ex.PW1/1 practice. (OSR) 5 Copy of certificate of diploma of textile Mark D designing 6 Letter date 29.11.2004 issued by defendant Ex.PW1/2 regarding the status of PW1 (OSR) 7 Photocopy of writ petition No. 1346/02. Mark E. 8 Copy of order of the said writ petition. Mark F. SCJ No.12462/16 Madhu Mallick Vs. Nehru Bal Samiti (Regd) Page no. 12 of 17 9 Copy of register entries of different dates Mark G (colly.) (7 pages) 10 One photograph showing locks on bathroom and Mark H. toilet 11 Copy of complaint in NCW dated 05.08.2010 Mark I Thereafter, cross examination of PW1 was deferred at request of Ld. counsel for the defendant.
18.Though, plaintiff had got her examination in chief conducted but it is evident from the perusal of the record that plaintiff had not appeared for her crossexamination despite opportunities and vide order dated 01.10.2016, Ld. Predecessor of this court had closed plaintiff's right to lead PE observing that, "in view of the previous conduct of plaintiff and also in view of specific directions regarding leading of plaintiff evidence within three opportunities no further opportunity can be granted as more than sufficient opportunities have already been availed by the plaintiff. PE stands closed. It is also clarified that since plaintiff has not offered herself for cross examination, her examination in chief will not be read in evidence." Subsequently, since there was no plaintiff evidence on record, defendant also chose not to lead DE.
19.It is apparent from the record that three opportunities were given to the plaintiff to complete her PE. However, first and second opportunity to lead PE was not availed by the plaintiff. Though the plaintiff had got her examination in chief done only on the third SCJ No.12462/16 Madhu Mallick Vs. Nehru Bal Samiti (Regd) Page no. 13 of 17 opportunity however she had not made herself available in the witness box for her crossexamination and pursuant to that her right to lead PE was closed. Therefore, in the absence of cross examination not being conducted because of the callousness and lackadaisical approach of the plaintiff, her examination in chief cannot be read in evidence, as it is a settled proposition of law that, the evidence of the plaintiff cannot be read in piecemeal when the witness did not withstand the litmus test of crossexamination. Hence, her evidence i.e. examinationinchief cannot be read against the defendant.
20.Moreover, in such eventualities where the plaintiff has not produced even a single witness to substantiate the pleadings or the issues and the defendant has also not adduced any evidence to substantiate the pleadings as averred by the defendant in the written statement. Now, the question arises whether in the absence of any evidence, can the pleadings be the basis for deciding the suit.
21.At this stage, the court deems it fit to discuss the guiding principles laid down by the Hon'ble Supreme Court of India in UP State Electricity Board & Anr. vs. Aziz Ahmad, I (2009) SLT
587. The relevant para i.e. Para17 is quoted here for the sake of clarity: "Pleadings are required to be proved and so long evidence is not led in support of the pleadings no reliance can be placed only on the pleadings without there being any cogent evidence in support of the pleadings. Pleadings are required to be SCJ No.12462/16 Madhu Mallick Vs. Nehru Bal Samiti (Regd) Page no. 14 of 17 proved by leading evidence."
22. This court also deems it fit to quote here the observations made by Hon'ble Supreme Court of India in Rajasthan State TPT. Corpn. & Anr. Vs Bajrang Lal, III (2014) SLT 220 wherein in para 12 and 13, the guiding principles were provided. The relevant paras are quoted here for the sake of clarity: "It is settled proposition of law that a party has to plead the case and produce/adduce sufficient evidence to substantiate his submissions made in the plaint and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas. (Vide: M/s. Larsen & Toubro Ltd. & Ors. v. State of Gujarat & Ors., AIR 1998 SC 1608; National Building Construction Corporation v. S. Raghunathan & Ors., AIR 1998 SC 2779;
Ram Narain Arora v. Asha Rani & Ors., (1999) 1 SCC 141; Smt. Chitra Kumari v. Union of India & Ors., AIR 2001 SC 1237;
and State of U.P. v. Chandra Prakash Pandey, AIR 2001 SC 1298.) In M/s. Atul Castings Ltd. v. Bawa Gurvachan Singh, AIR 2001 SC 1684, this Court observed as under: The findings in the absence of necessary pleadings and supporting evidence cannot be sustained in law. (See also: Vithal N. Shetti & Anr. v. Prakash N. Rudrakar & Ors., (2003) 1 SCC 18; Devasahayam (Dead) by L.Rs. v. P. Savithramma & Ors., (2005) 7 SCC 653; Sait Nagjee Purushotam & Co. Ltd. v. Vimalabai Prabhulal & Ors., (2005) 8 SCC 252, Rajasthan Pradesh V.S. Sardarshahar & Anr. v. Union of India & Ors., AIR 2010 SCJ No.12462/16 Madhu Mallick Vs. Nehru Bal Samiti (Regd) Page no. 15 of 17 SC 2221; Ritesh Tiwari & Anr. v. State of U.P. & Ors., AIR 2010 SC 3823; and Union of India v. Ibrahim Uddin & Anr.
(2012) 8 SCC 148)".
23. This court also found guiding principles in the recent judgments pronounced by the Hon'ble High Court of Delhi in the case of Prem Nath Chopra deceased Through LRs vs Arun Chopra & Ors., 209 (2014) DLT 144 (DB) wherein , it was observed by the Hon'ble High Court of Delhi that if no evidence is given by the parties on whom burden is cast, issue must be found against him. The relevant para is quoted here as under for the sake of clarity: "The strict meaning of the term 'onus probandi' is this, that if no evidence is given by the party on whom the burden is cast, the issue must be found against him".
24.The court also deems it fit to quote here the observations made by the Hon'ble High Court of Delhi in Sahana Pal vs. U. K Samanta 222 (2015) DLT 81 wherein it was observed by the Hon'ble High Court of Delhi that the pleadings unless admitted cannot be the basis of deciding the suit or the case. The relevant para is quoted here as under for the sake of clarity: "In any event, a pleading is not evidence, and cases are required to be decided on the basis of evidence. The Court cannot proceed on the basis of a mere pleading, unless the same is admitted, and if disputed, is substantiated by acceptable evidence. Since the defence of the respondent had been struck off, the learned ADJ ought not to have looked into the same while rendering the SCJ No.12462/16 Madhu Mallick Vs. Nehru Bal Samiti (Regd) Page no. 16 of 17 impugned judgment.".(underline added)
25. From the above quoted guiding principles as provided by the Hon'ble Apex Court and Hon'ble Delhi High Court, it is clear that, if no evidence has been adduced by the parties to substantiate the pleadings then issues have to be decided against the party on whom burden of proof was cast.
26.Coming to the factual matrix of the present suit, since no evidence has been adduced by the plaintiff in order to prove her case on the scale of preponderance of probabilities, issue No. 1, 2, 3, 4 and 5 are decided against the plaintiff and issue No. 6 and 7 are decided against the defendant.
27.RELIEF As a squeal to the observations and findings made as above, suit of the plaintiff is hereby disposed of as dismissed. No order as to cost.
Decree sheet be prepared accordingly.
File be consigned to record room after completing necessary formalities.
Digitally signed RICHA by RICHA
SHARMA
Pronounced in the open court
SHARMA Date: 2019.01.10
14:41:23 +0530
on 09.01.2019
( Richa Sharma)
Civil Judge (West)/Delhi
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