Delhi District Court
Suit No:06/08/1996 vs N.D.M.C Through on 21 January, 2012
Page 1
IN THE COURT OF Ms. VEENA RANI, COMMERCIAL CIVIL JUDGE,
PATIALA HOUSE, COURTS, NEW DELHI
Suit No:06/08/1996
Shri Rishi Kumar S/o Sh. Braham Singh,
R/o 549, D.D.A. Janta Flats, Badarpur,
New Delhi-110044 .....Plaintiff
Versus
N.D.M.C through
1. Sh. P.K. Upmanyu,
(Transport Controller)
Room No:1719, 17th Floor,
NDMC, Palika Kendra,
New Delhi-110001
Second Address:
Sh. P.K. Upmanyu S/o Sh. Khushdil,
1/46, Sadar Bazar, Delhi Cantt.,\
New Delhi-110010.
2. Chair Person,
New Delhi Municipal Council,
Palika Kendra, New Delhi-110001
3. Secretary, New Delhi Municipal Council,
Palika Kendra, New Delhi-110001
SUIT FOR RECOVERY OF Rs.50,000/-( RUPEES FIFTY THOUSAND
ONLY)
Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others
Page 2
Date of institution of the suit : 25-10-1996
Date of hearing of final argument : 14-11-2011
Date of final judgment : 21-01-2012
JUDGMENT
1. Plaintiff has filed the present suit for the recovery of Rs.50,000/- against the defendants with 18% p.a. interest pendentilite from the filing of the suit till its realization along with future interest and cost of the suit. Briefly stated the facts of the case are that plaintiff is in a permanent cadre and has been serving in the NDMC as an Assistant Engineer (E&M) and defendant No:1 is stated to be the immediate boss of the plaintiff in January & February, 1996 and defendant No:2 being the head of the NDMC and defendant NO:3 being the Secretary of the NDMC are the necessary party to the present suit.
2. It is stated by the plaintiff that on 9-2-1996 he contacted the defendant No:1 in person and requested him for medical leave for about 10 days and produced before him his application for medical leave along with the medical certificate from the competent authority but defendant No:1 without hearing the plaintiff, refused to take the delivery of it, thereafter, the plaintiff dispatched the application for leave along with medical certificate to the defendant No:1 on 14-2-1996 through registered post which was acknowledged by the office of the NDMC. It is submitted that thereafter the plaintiff went to the defendant No:12 with his medical fitness certificate on 29-2-1996 for reporting his duties but at that time defendant No:1 refused to accept the plaintiff on duty.
3. It is submitted by the plaintiff that he was actually on duty and attended Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 3 the office regularly in the month of January and February, 1996 and attended his duties from 13-1-96 to 15-1-96, 22-1-1996 to 31-1-96, 1-2-96 to 8-2-1996 and 29-2-96 and the total days are calculated 22 days for which teh plaintiff has affixed his signature on the official attendance register but the defendant NO:1 malafidely and intentionally has shown the plaintiff absent. It is averred by the plaintiff he received a sum of Rs. 6856/- in the month of April, 1996 though he was legally entitled to receive a sum of Rs.11,036/- at the rate of Rs.5518/- per month and in fact he has been paid less a sum of Rs.4,180/- i.e. the salary for 22 days as stated above. It is stated that defendant No:3 gave directions to the defendant No:1 in his office in the month of April, 1996 but due to prejudiced attitude of the defendant No:1 towards the plaintiff, the balance amount has not been paid to the plaintiff.
4. It is submitted by plaintiff that the behaviour of the defendant No:1 with him throughout was of vindictiveness and unjustified as the defendant No:1 had been using filthy and abusive , derogatory and defamatory language towards the plaintiff by calling him "Chamar" during duties hours. It is stated by the plaintiff that defendant No:1 used verbatim language towards him like " TUM BLOODY SCHEDULED CASTE, T.B. PATIENT PHIR SE YAHAN AA GAYA. JAOO, JAHAN JAJAKE REPORT KARNA HAI KARO. DEKH LOONGA TUJHE BLOODY". It is stated by the plaintiff that he filed a representation to the defendant No:
1 and to the higher concerned authorities vide his letter dt. 20-3-1996 and the same has been acknowledged by them and the said representation along with legal notice dt.6-8-1996 were dispatched and acknowledged by the defendants.
Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 4
5. It is averred by the plaintiff that the conduct and attitude of the defendant No:1 towards the plaintiff during the duty hours amounted to character assassination and with intention to defame and degrade the reputation of the plaintiff among his office colleagues for which the defendant No:1 is personally liable and accountable for damages/compensation because the plaintiff was made to undergo mental agony, torture, tension, anxiety which also caused the ill health to the plaintiff. Plaintiff claimed damages to the tune of Rs.45820/- and also a sum of Rs.4180/-( Salary) total amounting to Rs.50000/- from the defendants.
6. Plaintiff valued the present suit to the tune of Rs.50000/- and affixed the appropriate court fees on the plaint.
7. In their written statement the defendants raised preliminary objection that suit of the plaintiff is liable to be dismissed for want of cause of action against the defendants. They further stated that plaintiff has not come to the court with clean hands and has suppressed material facts therefore, the suit of the plaintiff is liable to be dismissed. Further it is stated that suit of the plaintiff is barred by the section 385 of the NDMC Act, 1994 as no such notice was given to the defendants, hence the suit is liable to be dismissed. It is further submitted by the defendants that the suit of the plaintiff is bad for misjoinder of parties as the defendants No:2 and 3 are not the necessary parties in the present suit , hence the suit of the plaintiff is liable to be dismissed.
In their reply on merits defendants admitted that plaintiff Sh Rishi Kumar had been appointed as Jr. Engineer w.e.f. 21-4-1984 on consolidated salary initially for a period of three months, therefore, his terms of appointment was extended time and again up to 31-5-2007 and Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 5 on 31-5-1987 the Administrator of NDMD had ordered that the services of the plaintiff be dispensed with. It is stated that plaintiff Rish Kumar had made various representations for his reinstatement and considering his request, and Administrator of NDMC had allowed him another change and his case was again reviewed by DPC on 28-4-1988 and his probation period was extended up to 31-3-1989. Defendant submitted that it can be seen from the confidential reports of the petitioner that he had been given adverse remarks by his superior officers during the initial report also. Defendant denied that plaintiff has unblemished record of sincerity and hard work and without any stigma. It is stated that plaintiff had never been able to give satisfactory performance to their superior officers. It is submitted that plaintiff had been very casual in his official approach and as per the file he had been issued warning letter by concerned branch for concealing the facts at the time of his appointment. It is denied by the defendants that plaintiff ever contacted the defendant No:1 on 9-2-1996 with a request for medical leave and defendant No:1 refused to take delivery of the dak. It is stated that dak is received by dispatch section and not by the Head of Department directly. It is submitted that the story of the plaintiff is false and concocted. It is stated that plaintiff was absent from duty on 13-1-1996 and 15-1-1996 and a notice dt.15-1-1996 was issued to plaintiff to explain the reason for being absent without information. It is further stated that plaintiff was absent w.e.f. 22-1-96 to 31-1-96 and same was informed to the plaintiff vide letter dt.5-2-96 but no reply was received from the plaintiff so far. The defendants denied the allegations leveled against them by the plaintiff.
It is denied by the defendants that conduct and behavior of the Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 6 defendant No:1 with the plaintiff though out was of vindictiveness and unjustified. It is stated that defendant No:1 has never used derogatory and defamatory language for anyone. It is stated that plaintiff had drawn an advance of Rs.10,000/- in January, 1996 and the account for this advance has not been submitted so far which causing audit problem to NDMC.
It is submitted by the defendants that the claim of damages made by the plaintiff in his plaint is totally wrong and false. It is denied by the defendants that defendant No:1 has exceeded the powers given by the NDMC as Transport Controller. It is stated that plaintiff is a habitual of escaping from official work, his ACR's where his superiors has given the adverse remarks shows that he has been lacking sincerity and will to work. It is stated that his services had been dispensed with by the previous Administrator only on account of his poor performance and inability to deliver the goods as required by his appointment. It is submitted that plaintiff is in the habit of reporting against his superiors in order to harass them and pressurize them as and when he is made to work. Defendants stated that plaintiff is professionally incompetent person who has failed to produce results under different superior officers having no connection with each other. Defendants denied all the allegations leveled against them by the plaintiff in his plaint and prayed that the suit of the plaintiff be dismissed with costs.
8. The plaintiff filed replication to the WS of defendants and reiterated his averments made in the plaint. In his replication plaintiff has stated that allegations leveled against him by the defendants in their written statement are false, baseless and incorrect.
9. From the pleadings of the parties the following issues were framed vide Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 7 order dated 28-8-1997:-
1. Whether the suit is barred u/s 385 of NDMC Act, 1994 ? OPP
2. Whether the suit is bad for mis joinder of parties in view of preliminary objection No:6 of the WS ? OPP
3. Whether the plaintiff has not come to the court with clean hands and suppressed the material facts ? OPP
4. Whether the plaintiff has no cause of action to institute the present suit ? OPP
5. Whether the plaintiff is entitled to the relief claimed in the suit ? OPP
6. Relief.
10. In support of his case the plaintiff has examined Sh. Bhoori Singh as PW1, who in his examination in chief deposed that since 1980 he has been working in NDMC as Chowkidar. PW1 deposed that he know the plaintiff and defendant No:1 Sh. P.K. Abhimanu who is the Administrative head of the plaintiff. He further deposed that in January- February, 1996 he and plaintiff were working in the same workshop and there was an altercation between the plaintiff and defendant No:1 and plaintiff was abused in the filthy language by the defendant No:1 and was called Chamar, Schddule cast and Badtamiz, bloody , fool and not fit for services. PW1 deposed that during the period w.e.f. 4-2-96 up to 29-2-1996 he was on leave and he was refused to join duty by Defendant No:1. He further deposed that Rishi Kumar was also refused joining by Sh. Abhimanu after his medical leave despite placing of medical certificate by him. PW1 deposed that he and Sh. Rishi Kumar came daily for the aforesaid workshop and also marked their presence in the Register maintained at the gate by the Chowkidar.
Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 8 During his cross examination by the ld. Counsel for the NDMC, PW1 stated that incident mentioned by him in his chief take place on January, 1996 in the after lunch session in the workshop. He denied that no such incident took place over there. PW1 stated that he intervened the said altercation between the officials but he did not file any report about this altercation. PW1 denied that he himself having inimical relation with the defendant No:3 and that is why he has been deposing in favour of the plaintiff. PW1 denied that he is deposing as is dictated by plaintiff. He further denied that he was never refused to join duty by NDMC officials.
11. Plaintiff examined himself as PW2 and reiterated the averments made in the plaint. In his examination in chief PW2 deposed that in January, 1986 he was posed at NDMC Workshop, situated at Mandir Marg, Punchkuin Road, New Delhi. He deposed that he applied for two days casual leave for 15-1-96 and 16-1-96 and out of the said leaves only casual leave for 16-1-96 was granted to him by Sh. Abhimanyu defendant No:1. PW2 further deposed that on 13-1-96 he was called at Okhla Workshop by defendant No:1 for discussions with regard to the purchase of engine parts but he was shown absent in the duty list. It is deposed by PW2 that despite being on duty w.e.f. 22-1-96 to 31-1-96 he was shown absent in the duty list. PW2 further deposed that during the period 1-2-96 to 8-2-96 he was on duty but had bee shown as absent in the duty list. He stated that during the aforesaid period he had marked his presence in the attendance register. PW2 deposed that during the period from 9-2-96 up to 28-2-96 he was on medical leave due to sickness and he sent a medical certificate for the said period to his office and on 9-2-96 he personally came to the office of the defendant No:1 with medical application but the Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 9 same was refused by defendant No:1. He further deposed that he reported for duty on 29-2-96 but he was refused to join the same by the defendant No:1/ NDMC. PW2 deposed that on that date he has also brought his medical certificate but defendant No:1 even refused to see him and stated that "That you are a Schedule cast and I do not want to see your face, do not come to my office". It is deposed by the DW2 that thereafter he approached the defendant No:3 with his application, medical certificate and joining report but he was told by defendant No:3 that he had summoned his file and asked for wait and on his second visit to him the defendant No:3 told PW2 that he has signed his application and sent the same for sanction. PW2 deposed that he had received salary for the month of January and February, 1996 after deducting 22 days salary which amounts to Rs.4180/-. It is deposed by PW2 that he sent a representation to the defendants on 20-3-1996 , photocopy of which is Ex. PW2/1. A copy of notice sent by plaintiff to the defendant, through his counsel, is Ex. PW1/3 and the postal receipts are Ex. PW2/2 collectively and three A/D cards are Ex. PW2/3,4 & 5 respectively. The copy of the appointment letter is Ex. PW2/6, the copy of the promotion letter is Ex. PW2/7. The copy of the representations, letters sent by the plaintiff to the defendants are Ex.PW2/8 to Ex. PW2/13.
During his cross examination PW2 admitted that initially he was appointed on probation for three months, he again said the probation was for one year but he do not remember exactly the extension of probation but it might have been extended up to 1989. PW2 further admitted that his services were dispensed with in 1987 but he denied that his services were dispensed with due to unauthorized absence from duty. PW2 Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 10 further denied that he never gave any representation to the defendant No:
1. PW2 also denied that he never approached the defendant No:1 with his application of medical leave. It is denied by PW2 that he was absent from duty on 13-1-96 to 15-1-96 and 22-1-96 to 31-1-96. PW2 deposed that he was on leave on 15-1-96 only. PW2 stated that he do not know if any explanation was called from him for his non appearance on 16-1-96. PW2 admitted that he was given any advance of Rs.10,000/- in January, 1996 for release of petrol to NDMC vehicles and the same has already been adjusted in his account. PW2 admitted that he has made some complaint against his officers for harassing him. He denied said complaints were false. PW2 further denied that adverse remarks made in his ACR were communicated to him. PW2 denied that he has tempered with the official records. It is denied by the PW2 that defendant No:1 did not abuse him in the manner as stated by him. It is deposed by the PW2 that before filing the instant suit a legal notice as per provision of law was sent to the defendants. He denied the suggestion that same was not sent. PW2 denied that he was removed from services or not regularize due to adverse remarks in my ACR or that his service record has been bad.
12. PW3 Sh. A. S. Banda, from Transport Department of NDMC brought the attendance register from 10-1-1996 to 8-2-1996 and the record from 29-11-95 and March, 1996 is not traceable. In his cross examination PW3 stated that copy of the original register for the month of January and February has been brought by him which are Ex. PW3/1 and PW3/2.
13. Defendants have examined Sh. S.K. Gupta , JE as DW1 and filed and tendered his evidence by way of affidavit which is Ex. DW-1 bearing Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 11 his signature at point A and B. DW1 deposed that in January 1996 he was working under plaintiff Sh Rishi Kumar at Auto Workshop at Mandir Marg and the attendance register of the said workshop was always in the custody of Sh. Rishi Kumar and all the officials used to mark their attendance in the register in his presence in his office. DW1 further deposed that Sh. P.K. Upmanyu/defendant No:1 used to visit the Mandir Marg Workshop but he never heard any such incident till 31-1-1996 when defendant No:1 threatened or abused Sh. Rishi Kumar and no such incident occurred during the said period.
In his cross examination DW1 deposed that he was directed by Head of Department to submit evidence in affidavit on behalf of MCD. He further deposed that he myself prepared his evidenciary affidavit. Dw1 deposed that he used to sign the attendance register in the presence of Rishi Kumar and sometimes he signed at the gate. DW1 denied the suggestion that attendance register always used to be at the gate. DW1 deposed that he can not say if defendant No:1 used to abuse people generally or used filthy language.
14. Sh. Sunil S/o Late Sh. Ranvir Singh has been examined as DW2 and his evidence was tendered by way of affidavit which is Ex. DY bearing his signature at point A and B. DW2 in his examination in chief deposed that as per the official records maintained in the office of the computer Billing Section Sh. Rishi Kumar was paid a sum of Rs.6856/- as salary for the months of January and February, 1996. Dw2 deposed that as per record sent to the CBS Department by the Transport Controller for the period January and February, 1996, the plaintiff was absent from duty from 13-1-96 to 15-1-96, 22-1-96 to 31-1-96 and 1-2-96 to 8-2-96 and Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 12 also on 29-2-1996 for the total number of 22 days and the calculations for the net salary payable to Sh. Rishi Kumar were made on the basis of the said duty list and the salary amount released to the plaintiff has been done accordingly and is correct. DW2 further deposed that plaintiff was granted 20 days commuted leave w.e.f. 9-2-96 to 28-2-96 and half pay leave for 40 days was debited to his leave account.
In his cross examination DW2 stated that it is correct that his department do not tally duty list with attendance register and he also do not know how duty list is prepared and their division does not see attendance register. DW2 further deposed that he is not aware that duty list was not sent in accordance with attendance register in the present case.
15. Defendant No:1 Sh. P.K. Upmanyu has been examined as DW3, who also tendered his evidence by way of affidavit which is Ex.DZ bearing his signature at point A and B and his cross examination was deferred. Thereafter, despite opportunities DW3 did not appear before the court for his cross examination , therefore, his chief examination was expunged from the court record by the court vide order dated 3-3-2006.
16. The case of the plaintiff is that he had been the employee of the NDMC and that the Defendant No.1 Lt. Col. Upmanyu, The Transport Controller, was the immediate boss of the plaintiff. The case of the plaintiff arises from the non-payment of the full salary and the harassment & humiliation in the hands of the defendant No.3 in particular. The plaintiff-herein has averred incidents of rude behavior on part of the said defendant No.1. The plaintiff-herein has also alleged that the defendant No.1 used foul and abusive language with the him. As per the duty list Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 13 sent by the Transport Controller the plaintiff was absent for the total period of 22 days in the month of Jan. & Feb. 1996. The plaintiff has been marked absent : from 13.01.1996 till 15.01.1996; from 22.01.1996 till 31.01.1996; Absent from 01.02.1996 till 08.02.1996; Absent on 29.02.1996.
17. Through the present suit for recovery the plaintiff has sought the damages to the tune of Rs.50,000/- from all the defendants jointly and severally. The amount specifications are thus:
i. Rs.25,000/- Towards the general Damages for torture, harassment, spoiling image and health.
ii. Rs.10,000/-Towards the postal charges, various visits to the office of the defendants No.3 etc. iii. Rs.4,180/- The unpaid salary.
iv. Rs.10,820/- Damages and interest on delayed payment of salary.
18. The defendant No.1 has contended that the probation period of the plaintiff-herein was extended from time to time and eventually vide O.O. EE-II/2644/SC-I dated 26.10.1987 the services were dispensed with, with immediate effect. Upon repeated requests / representations the case of the plaintiff was reviewed by the Departmental Promotion Committee on Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 14 28.04.1988 and the period of probation was extended upto 31.03.1989. During the time of the service of the plaintiff-herein, there had been adverse entries / reports made by the superior officers. It was due to the said reasons that the period of probation was prolonged.
19. The defendants have filed the written arguments primarily pointing out the inconsistency the averments / contentions of the plaintiff-herein.
20. I have heard the final argument on behalf of the parties and perused the record carefully. I have also gone through the material placed on record by the parties. My findings on the various issues are as under:-
21.ISSUE NO.1 : Whether the suit is barred under S.385 of the NDMC Act, 1994 ? OPD According to S.385 of the NDMC Act, 1994:
1. No suit shall be instituted against the Council or against the Chairperson or against any municipal officer or other municipal employee or against any person acting under the order or direction of the Chairperson or any municipal officer or other municipal employee, in respect of any act done, or purporting to have been done, in pursuance of this Act or any rule, regulation or bye-law made thereunder until the expiration of two months after notice in writing has been delivered at the municipal office and, in the case of such officer, employee or person, unless notice in writing has also been delivered to him at his officer or place of residence, and unless such notice states explicitly the cause of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of residence of the intending plaintiff, and unless the plaint contains a statement that Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 15 such notice has been so left or delivered.
2. No suit, such as described in sub-section (1), shall unless it is a suit for the recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises.
3. Nothing is sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit.
The effect of the Section is clearly to impose a bar against the institution of a suit against the Government or a public officer in respect of any act purported to be done by him in his official capacity until the expiration of two months after notice to the government.
In the present case the plaintiff has deposed in his chief- examination that he had sent representations and the legal notice. The representation dated 20.03.1996 was sent to the defendants No.1 to 2 and the copy of the same is Ex. PW-2/1 which bears the sign of the plaintiff at point 'A'. The notice dated 06.08.1996 was sent through the counsel and the same is Ex. PW-1/3. The postal receipts are Ex.PW-2/2 collectively. The three A.D. cards are Ex.PW-2/3; Ex.PW-2/4 & Ex. PW-2/5. The copy of the reply dated 20.05.1996 is Ex.PW-2/7. The letters dated 05.07.1996 , 15.07.1996 are Ex. PW-2/10 and Ex. PW-2/11 respectively.
The evidence of the plaintiff would show that there was a series of communication with the defendants. The requirement of the statutory notice Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 16 has been enacted as a measure of public policy with the object of ensuring that before a suit is instituted against the Government or a public officer, the Government or the officer concerned is afforded an opportunity to scrutinize the claim in respect of which the suit is proposed to be filed and if it be found to be a just claim, to take immediate action and thereby avoid unnecessary litigation and save public time and money by settling the claim without driving the person, who has issued the notice, to institute the suit involving considerable expenditure and delay. The Government, unlike private parties, is expected to consider the matter covered by the notice in a most objective manner, after obtaining such legal advice as they may think fit, and take a decision in public interest within the period of two months allowed by the section as to whether the claim is just and reasonable and the contemplated suit should, therefore, be avoided by speedy negotiations and settlement or whether the claim should be resisted by fighting out the suit if and when it is instituted. There is clearly a public purpose underlying the mandatory provision contained in the section insisting on the issuance of a notice setting out the particulars of the proposed suit and giving two months' time to Government or a public officer before a suit can be instituted against them. The object of the section is the advancement of justice and the securing of public good by avoidance of unnecessary litigation. In the present case the requirement of a notice seems to have been complied with.
The issue No.1 is thus decided in favour of the plaintiff and against the defendants No.1 to 3.
22.Issue No.2 : Whether the suit is bad for the misjoinder of the parties in view of the Preliminary Objection No.6 ? OPD Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 17 The defendants have contended that the suit is bad for the mis- joinder of the parties inasmuch that the defendant No.2 & 3 are not the necessary parties.
'Misjoinder' of parties means a joinder of a party who ought not to have been joined either as a plaintiff or as a defendant. In other words, it refers to impleading an unnecessary party. It may also refer to a situation in which a plaintiff is impleaded as a defendant and vice-versa (party wrongfully impleaded). However, 'Non-joinder' refers to a situation when a party who ought to have been impleaded according to the law is not impleaded. As opposed to presence of the wrong party, it refers to absence of a party. In case of non-joinder of necessary parties, the suit may be dismissed, but this is not so in case of misjoinder. Non-joinder of parties is not fatal to a suit. However, a distinction between non-joinder of someone who ought to have been joined and someone whose joinder is only necessary for convenience is necessary. The former are necessary parties, while the latter are only proper parties. Order 1, Rule 9 of the Code deals with non-joinder of parties, but is only a procedural provision, which does not affect the substantive rights and duties of parties.
If a suit is dismissed straightaway for a non-joinder of necessary parties, the plaintiff will have to file the suit again, resulting in multiplicity of litigation. The Code, through various legal provisions seeks to prevent multiplicity of litigation. For this reason, the court may add the necessary parties on its own, or may even direct the plaintiff to do so. However, since adding necessary parties to the suit is procedural in nature, the same has to be done at the time of trial, but without prejudice to the plea of limitation of the parties involved.
Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 18 In the present suit the plaintiff has is claiming relief from the government which had control over his employment. As far as the joint and several liability is concerned the three defendants formed a chain of control over the plaintiff.
Under O. 1 R. 9 CPC it is provided that no suit shall be defeated by reason of the mis-joinder or non-joinder of the parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. There is proviso added to this rule which says that nothing shall apply to non-joinder of a necessary party. The said proviso does not apply in the present case because the contention of the defendants-herein relates to the 'mis- joinder' and not the 'non-joinder'.
The averments of the plaintiff are directed against the Defendant No.1 i.e. Lt. Col. Upmanyu, The Transport Controller, who was the boss of the plaintiff. The plaintiff-herein has averred incidents of rude behavior on part of the said defendant No.1. The plaintiff-herein has also alleged that the defendant No.1 used foul and abusive language with the him.
For the reasons above-stated the issue No.2 is also decided in favour of the plaintiff and against the defendants No.1 to 3.
23.The Issues No.3,4 & 5 would be decided together involving common discussion and findings.
The relief sought by the plaintiff can be divided into three segments :
A. The Attendance vis-à-vis the unpaid salary of Rs. 4180/- along with the interest and the delay (Rs.10,820/-);
Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 19 B. The Specific Damages vis-à-vis the cost/expenses of Rs.10,000/- incurred in order to pursue the case before the authorities.
C. The General Damages vis-à-vis the Incident of the alleged abuse in relation to which the damages to the tune of Rs.25,000/- towards harassment etc. A. The Attendance of the plaintiff-herein:::
The issue of the unpaid salary has been premised by the plaintiff upon the work he has done for the period of 22 days when he was actually present but treated as absent. It has been the case of the plaintiff that he was deliberately marked 'absent' when he was actually present and working and it is for the said reason that he deserves the salary. The issue of salary is therefore coupled with the attendance of the plaintiff. The evidence has been lead on the said aspect.
Evidence of (PW-3) Sh. A.S. Nanda s/o Sh. Baldev Singh Nanda The witness PW-3 has exhibited the attendance register pertaining to the month of Jan.1996 as PW-3/1 and that of Feb. 1996 as PW-3/2. The said witness has merely exhibited the said records and has not deposed anything on the contentions of the parties. Evidence of PW-1 Sh. Bhoori Singh s/o Sh. Ram Prakash The plaintiff has examined Sh. Bhoori Singh s/o Sh. Ram Prakash who has deposed about the incident of the month of Jan. 1996. The said witness has however not deposed anything on the issue of the presence or the absence of the plaintiff. The testimony of the said witness therefore does not lend support on the 'attendance' aspect of the matter. The aspect Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 20 relating to the incident of the alleged abuse would dealt with later-herein. Evidence of PW-2 Sh. Rishi Kumar (plaintiff-herein) The plaintiff Sh. Rishi Kumar has been examined as PW-2 and has deposed that when he was posted as A.E. at the Mandir Marg Workshop he applied for two days casual leave for 15.01.1996 and 16.06.1996. However, the casual leave was granted only for 16.06.1996. On 13.06.2006 he was called at the Okhla workshop by the defendant No.1 to discuss the purchase of the engine parts. He has further deposed that he was present from 22.01.1996 to 31.01.2006 but was shown absent. He was also present from 01.02.1996 to 08.02.1996 but has been shown as 'absent' for the said period. During the period 09.02.1996 to 28.02.1996 the plaintiff is said to be on medical -leave. On 09.02.1996 the plaintiff had gone to the office of the defendant No.1 in order to handover / submit the medical certificate but the same was refused by the defendant No.1.
On 29.02.1996 when the plaintiff reported for the duty the said joining was also refused by the defendant No.1. Despite the repeated request of the plaintiff the defendant No.1 did not meet him. Thereafter the plaintiff (PW-2) went to the Secretary (NDMC) Defendant No.3 where his application (for the medical leave) was signed. The plaintiff was told that his papers were sent to the concerned department for the necessary sanction etc. In the month of April 1996 the plaintiff received his salary for the month Jan. 1996 and Feb. 1996 after deducting the salary for the 22 days which amounted to Rs.4,180/-. Thereafter the plaintiff (PW-2) was sent on election duty which according to him was a punishment posting. The said witness has deposed on various other matters.
The PW-2 (plaintiff) has stated in his cross-examination that though Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 21 he was directed to take charge of the concerned workshop the charge was not formally handed over to him. He has further denied that he was responsible for maintaining the attendance register. He has contended that since the charge was not formally handed over to him he could not be held directly responsible for maintaining the attendance sheet. Evidence of DW-3 Lt. Col. Upmanyu (Defendant No.1) It would be relevant to refer to the some order sheets relating to the DW-3. The evidence by way of affidavit of Lt. Col. Upmanyu was adduced on 03.08.2005. The said witness DW-3 was present and the joint request the matter was adjourned to 04.10.2005. On 17.11.2005 the matter was fixed for the cross-examination of DW-3 but was again adjourned to 17.11.2005 when the last opportunity was granted for the cross-examination of DW-3. The matter was adjourned to 24.01.2006. On 03.03.2006 the DW-3 was not present, accordingly the chief examination of DW3 was expunged from the court records and the DE was closed. Evidence of Sh. Sunil s/o Late Sh. Ranvir Singh (Clerical Assistant with the CBS Department of the NDMC) Sh. Sunil s/o Late Sh. Ranvir Singh has been examined as a defense witness who was working as Clerical Assistant with the CBS Department of the NDMC. He has deposed in his evidence / statement that as per the official records maintained in the office of the Computer Billing Section the plaintiff was paid Rs.6,856/- as the salary for the month Jan. & Feb. 1996. The net salary payable to the plaintiff was calculated on the basis of the duty list provided / forwarded by the office of the Transport Controller. The said witness has further stated that as per the duty list sent by the Transport Controller the plaintiff was absent for the total period of Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 22 22 days in the month of Jan. & Feb. 1996. The break-up is as follows:
i. Absent from 13.01.1996 till 15.01.1996;
ii. Absent from 22.01.1996 till 31.01.1996;
iii. Absent from 01.02.1996 till 08.02.1996;
iv. Absent on 29.02.1996.
The above-mentioned witness Sh. Sunil (Clerk Assistant - CBS, NDMC) has further deposed that as per the official records vide O.O. dated OS(CE-II)/EC/867/SC-I dated 21.03.1996 the plaintiff was granted 20 days commuted leave w.e.f. 09.02.1996 to 28.02.1996 and the Half Pay Leave for 40 days was debited to the plaintiff's leave account.
During the cross examination Sh. Sunil has admitted that his department does not tally the duty list (sent to his department) with the attendance register. He has further stated that he can't say whether or not the duty list sent to him was tallied by the department with the attendance register (Ex. PW-1/3) Evidence of Sh. S.K. Gupta (J.E.[Auto] NDMC) The defendants have examined Sh. S.K. Gupta (J.E.[Auto] NDMC) as DW-1 who has deposed that he was working in the NDMC office from 1988 till 31st. Jan. 1996. The said witness DW-1 has admitted that the attendance register Ex. PW-1/3 bears his signature against his name. He was not absent even for a single day in the month of Jan. 1996. According to his testimony the plaintiff Sh. Rishi Kumar (A.E.) was the in-charge for all purposes and he reported to him since no Executive Engineer was Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 23 posted at that time. The attendance register (PW-1/3) remained with the plaintiff (Sh. Rishi Kumar) and that the DW-1 always signed in the presence of Sh. Rishi Kumar. The other officials too marked their attendance and signed the said attendance register which was in the custody of the plaintiff. The said witness has also stated Major Upmanyu used to visit the Mandir Marg Auto Workshop but the said witness had never heard or saw Maj. Upmanyu abusing the plaintiff. To the knowledge of the said witness no such incident had occurred in the said period.
During his cross-examination Sh. S.K. Gupta has re-affirmed that the attendance register always remained with the plaintiff and that he marked his attendance in the presence of the plaintiff. The said witness added that he cannot say when was the plaintiff absent. There were 3-4 chowkidars who worked on the shift basis of - 6:00 A.M to 2:00 P.M. - 2:00 P.M. to 10:00 P.M. -10:00 P.M. to 6:00 A.M. The said chowkidars too signed the attendance register (Ex.PW-1/3). During the late shift / night shift when the plaintiff was not there the attendance register was kept at the gate / entrance.
As far as the unpaid salary of Rs.4,180/- for the 22 days is concerned the case of the plaintiff-herein hinges upon the question - Who had the control of the attendance register ? The said question is essential because the likelihood of the tampering is to be either affirmed or completely ruled out. That is to say that if the said likelihood could be ruled out then the plaintiff drives home the point that he was actually 'present'.
As far as the absence from the duty is concerned the plaintiff had Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 24 written letters :
Ex. PW-2/1 is the letter dated 20.03.1996 written by the plaintiff to the Secretary (NDMC). The said letter mentions of various dates when the plaintiff had a meeting with Secretary and was informed that the plaintiff's matter is being looked into and the his file has been called form the concerned department. It was also mentioned therein that the plaintiff's duty list was not sent for the month of Jan. & Feb. 1996 for the period when the plaintiff was on duty. However, the said letter did not mention / offer any explanation for the absence from 22.01.1996 till 31.01.1996 and 01.02.1996 till 08.02.1996. The said letter dated 20.03.1996 also mentions of a separate incident when the defendant No.1 (Maj. Upmanyu) had met him in the corridors and had called him 'Schedule Class, T.B. Patient'. It would be relevant to mention that the said letter dated 20.03.1996 had not mentioned of any incident where Maj. Upmanyu had allegedly humiliated and insulted the plaintiff in abusive/cast-specific words.
Ex. PW-2/8 is the reply dated 20.05.1996 written by the plaintiff to the Executive Engineer (NDMC) which mentions the explanation for the absence on 13.01.1996, 15.01.1995 and 16.01.1996. The leave for the 16.01.1996 was granted but the salary for the days 13.01.1996 to 15.01.1996 was deducted.
Ex.PW-2/9 is dated 09.04.1996 written by the plaintiff to the Secretary (NDMC) and the same was the reminder for the payment of the salary and mentioned about the medical treatment from 09.02.1996 to 28.02.1996. However, the said letter did not mention / offer any explanation for the absence from 22.01.1996 till 31.01.1996 and 01.02.1996 till 08.02.1996.
Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 25 It is also pertinent to mention that the period of the medical treatment from 01.02.1996 to 08.02.1996 is not amongst the 22 days for which the salary was deducted.
Ex.PW-2/10 is the letter dated 05.07.1996 written by the plaintiff to the Secretary (NDMC) which mentions the issue of the non-payment of the salary. However, the said letter did not mention / offer any explanation for the absence from 22.01.1996 till 31.01.1996 and 01.02.1996 till 08.02.1996.
Ex.PW-2/11 is the letter dated 15.07.1996 written by the plaintiff to the Secretary (NDMC) which mentions the issue of the non-payment of the salary. However, the said letter did not mention / offer any explanation for the absence from 22.01.1996 till 31.01.1996 and 01.02.1996 till 08.02.1996.
Ex.PW-2/12 is the copy of the letter dated 25.07.1996 written by the plaintiff to the Secretary (NDMC) which mentions the issue of the non- payment of the salary. However, the said letter did not mention / offer any explanation for the absence from 22.01.1996 till 31.01.1996 and 01.02.1996 till 08.02.1996.
Ex.PW-2/13 is the copy of the letter dated 20.05.1996 written by the plaintiff to the Executive Engineer (NDMC) which mentions that the plaintiff was continuously present w.e.f. 22.01.1996 to 08.02.1996.
In order to establish the case the plaintiff has led evidence to show that he had no control over the attendance register so he could not have tampered with it. On the other hand the defendants have contended that the attendance register was under the control of the plaintiff as he was in- charge of the workshop. The Ex. PW-2/D2 is the letter No. Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 26 D-1748/TH /Auto dated 17.01.1996 sent by the defendant No.1 thereby giving certain directions to the plaintiff. By the said letter it appears that the plaintiff was in-charge of the operations. The said letter corroborates the testimony of DW-1 Sh. S.K. Gupta wherein he has stated that he reported to the plaintiff Sh. Rishi Kumar (A.E.) who was in-charge for all purposes since no Executive Engineer was posted at that time. The plaintiff examined as PW-2 has himself admitted during his cross- examination that the attendance register remained at the office-gate of the Mandir Marg Workshop where the plaintiff worked that he used to sign his attendance at the gate. The plaintiff also admitted that the defendant No.1 Major Upmanyu the Transport Controller used to visit the Mandir Marg Workshop once or twice a week. Apart from the workshop at Mandir Marg the said defendant No.1 (Major Upmanyu) used to visit other workshops at Okhla; Laxmi Nagar and Palika Kendra. The said factum matrix suggests that the attendance register was physically possessed by the plaintiff.
The Ex. PW-2/D1 is the letter No. D-1728/TH /Auto dated 15.01.1996 sent by the defendant No.1. The said letter mentions that the plaintiff was absent on 13.01.1996 and 15.01.1996. The Ex. PW-2/D3 is the letter No. D-1873/TH /Auto dated 05.02.1996 sent by the defendant No.1 in which the matter regarding the drawing of Rs.10,000/- by the plaintiff was mentioned. Furthermore the letter reprimanded the plaintiff vis-à-vis the unfinished task and mentioned the absence of the plaintiff from 22.01.1996 onwards. The said facts negate the contention of the plaintiff that he was not the in-charge or that the charge was not handed over to him. There is no evidence on record to support the claim of the Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 27 plaintiff that he had written to his superiors that the charge was not handed over to him.
The evidence adduced by the plaintiff through the various letters merely repeats that he was not paid the entire salary for the months of Jan. & Feb 1996. However, the said evidence does not help the plaintiff in establishing beyond reasonable doubt that he was actually present for the 22 days in question. The plaintiff had also reiterated his medical treatment from 09.02.1996 to 28.02.1996 but that are not the days amongst the 22 days in question.
The plaintiff has failed to establish his 'presence' for the 22 days in question.
The Specific Damages vis-à-vis the cost/expenses of Rs.10,000/- incurred in order to pursue the case before the authorities.
The theory of damages is that they are a compensation for the injury sustained, that is, that the sum of money to be given for reparation of the damages suffered should as nearly as possible, be the sum which will put the injured party in the same position as he would have been if he had not sustained the wrong for which he is getting damages. The expression 'compensation' is not ordinarily used as an equivalent to damages, although compensation may often have to be measured by the same rule as damages in an action for a breach. The term 'compensation' signifies that which is given in recompense, an equivalent rendered. Damages, on the other hand, constitute the sum of money claimed or adjudged to be paid in compensation for loss or injury sustained, the value estimated in money, of something lost or withheld. The term 'compensation' etymologically suggests the image of balancing one thing Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 28 against another, as where there is loss of pension rights, allowance for income tax prospectively payable in respect of pension has to be deducted.
Incidental losses include the costs needed to remedy problems and put things right. A plaintiff can recover all reasonable and necessary expenses brought about by an injury caused by the wrongful acts of a defendant. In a contract action, for example, the party who has been injured by another's breach can recover compensatory damages that include the reasonable expenses that result from reliance on the contract, such as the cost of transporting perishable goods wrongfully refused by the other contracting party. In other actions, expenses awarded as part of compensatory damages may include medical, nursing, and prescription drug costs; the costs of future medical treatment, if necessary; or the costs of restoring a damaged vehicle and of renting another vehicle while repairs are performed.
Employment damages arise whenever there is a party who has been affected by an adverse event at his or her work environment caused or generated by the misconduct or negligence of an offending counterpart. The adverse event can take different forms such as: personal injury, wrongful death, wrongful termination or discrimination. The damages award should compensate the harmed party for the effects of the adverse event, by placing them in a situation similar to the one prior to the adverse event. In order to calculate damages the expert usually considers economic factors such as past and future earnings, past and projected earnings growth, employment fringe benefits, expected work life, tax effects, lost household contribution and future consumption. The damages Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 29 expert uses the plaintiff's demographic and employment data and identifies calculation inputs based on government statistics, economic studies, and market conditions When an employer deliberately and intentionally harms an employee, it may amount to the intentional infliction of mental suffering. To be successful, the employee must prove that the employer intended to produce harm, that the conduct was outrageous, and also that a visible and provable injury has been suffered.
In an action for personal injuries, the damages are always divided into two main parts, special damages and general damage. In British Transport Commission v. Gourley 1956 AC 185 Lord Goddard said:--
"First, there is what is referred to as special damage, which has to be specially pleaded and proved. This consists of out-of-pocket expenses and loss of earnings incurred down to the date of trial, and is generally capable of substantially exact calculation. Secondly, there is general damage which the law implies and is not specially pleaded. This includes compensation for pain and suffering and the like, and, if the injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in the future. The basic principle so far as loss of earnings and out-of-pocket expenses are concerned is that the injured person should be placed in the same financial position, so far as can be done by an award of money, as he would have been had the accident not happened."
In a similar case Lawson, J. said in Cooper v. Firth Brown Ltd. 1963-1 WLR 418:--
"It seems to me that the object of damages is to compensate the plaintiff for what he has lost, and what he has lost is what would have Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 30 been in his pay packet, when he took it home and it seems to me that when special damages are being calculated there should be deducted the amount of any National Insurance contributions the plaintiff would have had to make, if he had remained in work."
What the plaintiff is entitled to get as special damages is all expenses actually and reasonably incurred before the date of the trial and loss of earnings of profit which would normally have accrued to him up to the above date. These must be pleaded and proved.
In order to claim specific damages the plaintiff has to enumerate the expenses and also has adduce cogent evidence in order to succeed. Special damages are awarded to directly compensate an employee for out- of-pocket expenses resulting from a wrongful action of the employer. These damages are economic damages arising out of the tangible / material financial loss suffered by the aggrieved. Such damages are to be proved mathematically.
The plaintiff-herein has not been able to set-up a case of specific damages. In order to succeed in damages a plaintiff needs to succeed on merits first. In the present case too the plaintiff first needs to establish the 'real' damage caused. As far as the Specific Damages are concerned there is no cogent evidence adduced on part of the plaintiff-herein. He has failed to demonstrate how the amount of Rs.10,000/- has been calculated. It seems that the plaintiff-herein has mixed-up the Specific Damages and the General Damages. In the paragraph(s) herein-below the aspect of General Damages is discussed.
As far as the 'Specific Damages' of Rs.10,000/- incurred in order to pursue the case before the authorities, are concerned the plaintiff Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 31 has not been able to establish his case on merits. The said amount of Rs. 10,000/- is accordingly disallowed / rejected.
The General Damages vis-à-vis the Incident of the alleged abuse in relation to which the damages to the tune of Rs.25,000/- towards harassment etc. The 'General Damages', as opposed to the 'Special Damages', are not to be mathematically calculated. The Earl of Halsbury L. C. said in The Mediana, 1900 AC 113 :--
"Nobody can suggest that you can by any Arithmetic computation establish what is the exact sum of money which would represent such a thins as pain and suffering which a person has undergone by reason of an accident."
Money cannot renew a shattered human frame. Still, the law has said that this is a head of damage for which monetary compensation can be awarded, and so the Court must do the best it ran in the light of such comparable cases as it may consider to be of assistance to it. We will endeavour to examine the measure of damages which the plaintiff is entitled to get in this action in the light of the above principles.
Mental agony, includes both the resultant mental sensation of pain and also the accompanying feelings of distress, fright, and anxiety. As an element of damages implies a relatively high degree of mental pain and distress. It is more than mere disappointment, anger, worry, resentment, or embarrassment, although it may include all of these, and it includes mental sensation of pain resulting from such painful emotions as grief, severe disappointment, indignation, wounded pride, shame, despair, and/or public humiliation. It is distinguished from physical pain due to an Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 32 injury, but it may be considered in awarding damages for physical injury due to a defendant's negligence or intentionally inflicting harm. Where there is no physical injury damages can still be awarded for mental anguish if it is reasonable to presume such would naturally flow from the incident. There are also situations in which the obvious result of the alleged wrongdoing would be mental distress due to embarrassment or reputation through libel, and therefore damages can be awarded to the distressed party. However, there are limits: in general, breach of contract judgments cannot include damages for mental anguish due to the loss of a deal or employment.
It is difficult to fix an amount with certainty in cases involving claims such as pain and suffering or emotional distress. When a plaintiff claims damages from a defendant, he has to show that the loss in respect of which he claims damages was caused by the defendant's wrong, and also that the damages are not too remote to be recoverable. The principle of remoteness of damage is a limiting principle of policy and the principles applicable in contract and tort are not the same (see Koufos v Czarnikow Ltd (The Heron II) [1969] 1 AC 350).
The mental agony of the plaintiff is sought to be premised on two aspects:
A. The arbitrariness of the defendants No.1 to 3 in dealing with the matter / representation of the plaintiff;
B. The incident of abuse / humiliation in the hands of the Defendant No.1.
The arbitrariness of the defendants No.1 to 3 in dealing with the matter / representation of the plaintiff;
Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 33 As far as the arbitrariness of the defendants No.1 to 3 of the concerned the plaintiff has tried to establish that his representations etc. were not properly dealt-with. However, the plaintiff has admitted some letters written to him by the defendants. During the cross-examination the witness PW-2 (plaintiff-herein) has admitted that he had received the letter No. D-1728/TH /Auto dated 15.01.1996 sent by the defendant No.1 and the same is PW-2/D1. The reply was given on 20.05.1996. The PW-2 has also admitted that he had received the letter No. D-1748/TH /Auto dated 17.01.1996 sent by the defendant No.1 and the same is Ex. PW-2/D2. The reply was given. The PW-2 further has admitted that he had received the letter No. D-1873/TH /Auto dated 05.02.1996 sent by the defendant No.1 and the same is Ex. PW-2/D3. The reply was given on 20.05.1996.
However, the plaintiff (PW-2) has denied that he had received the letter No. CRC / 1769/SC-IV dated 10.12.1986 (the same has been Marked as 'A') which communicated the remark made in the Annual Confidential Report (ACR). The plaintiff (PW-2) has also denied that he had received the letter No. CRC / 1771 / SC-IV dated 10.12.1986 (the same has been Marked as 'B') which communicated the remark made in the Annual Confidential Report (ACR).The PW-2 further denied that he had received the letter No. D-1808/TH /Auto dated 25.01.1996 sent by the defendant No.1 and the same is Mark' C'. There are certain letters the receiving of which were denied by the plaintiff but later admitted.
The Ex. PW-2/D1 is the letter No. D-1728/TH /Auto dated 15.01.1996 sent by the defendant No.1. The said letter mentions that the plaintiff was absent on 13.01.1996 and 15.01.1996. The reply to the said Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 34 letter was given on 20.05.1996.
The Ex. PW-2/D2 is the letter No. D-1748/TH /Auto dated 17.01.1996 sent by the defendant No.1 thereby giving certain directions to the plaintiff. By the said letter it appears that the plaintiff was in-charge of the operations.
The Ex. PW-2/D3 is the letter No. D-1873/TH /Auto dated 05.02.1996 sent by the defendant No.1 in which the matter regarding the drawing of Rs.10,000/- by the plaintiff was mentioned. Furthermore the letter reprimands the plaintiff vis-à-vis the unfinished task and mentioned the absence of the plaintiff from 22.01.1996 onwards. It was categorically mentioned that disciplinary action would be taken by the defendants. The reply to the said letter was given on 20.05.1996.
The plaintiff has also admitted that on 29.02.1996 the plaintiff (PW-2) went to the Secretary (NDMC) Defendant No.3 where his application (for the medical leave) was signed. The plaintiff was told that his papers were sent to the concerned department for the necessary sanction etc. In the month of April 1996 the plaintiff received his salary for the month Jan. 1996 and Feb. 1996 after deducting the salary for the 22 days which amounted to Rs.4,180/-. Thereafter the plaintiff (PW-2) was sent on election duty which according to him was a punishment posting. However, in the cross-examination the plaintiff admitted that many other NDMC officials were also sent on election duty and it cannot be said that the same would be a punishment.
The entire gamut of the facts / evidence would suggest that the case of the plaintiff was not handled arbitrarily. In-fact the case of the plaintiff was reviewed by the committee of the defendants and the plaintiff was Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 35 recalled to join. The said recalling has been admitted by the plaintiff in his cross-examination. The plaintiff has categorically admitted that though his services were dispensed with in the year 1987 he later joined. Therefore the plaintiff has not been able establish 'arbitrariness' on part of the defendants No.1 to 3.
The incident of abuse / humiliation in the hands of the Defendant No.1.
As far as the alleged abuse / humiliation in the hands of the defendant No.1 is concerned the plaintiff ought to establish the alleged incident. It is thereupon that the cause for the damages would arise. As far as the incidence of the alleged abuse is concerned the plaintiff has heavily relied upon the testimony of PW-1 Sh. Bhhori Singh who has categorically stated that the alleged abuse took place in the month of Jan. 1996. However, the plaintiff (PW-2) had stated in his own chief- examination that the incidence of the alleged abuse took place on 29.02.1996 when he had personally gone to the office of the defendant No.1 in order to report his joining. The witness PW-1 Sh. Bhoori Singh had categorically said that he had seen and heard that the defendant No.1 had abused the plaintiff in a filthy language calling him 'chamaar', 'schedule cast' , 'bad-tameez' and 'unfit for service'. The said witness further deposed that he was on leave from 04.02.1996 upto 29.02.1996. The testimony of PW-1 regarding the alleged incidence is unworthy of credit due to the glaring inconsistency of facts. The plaintiff deposing the incident occurring on 29.02.1996 while the PW-1 was on leave. The other glaring discrepancy on the face is that the PW-1 Sh. Bhoori Singh has deposed that the alleged incident of abuse took place at the workshop Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 36 whereas the plaintiff in his chief has said that the incident had occurred at the office of the defendant No.1. Another reason to discredit the testimony of the said witness is that Sh. Bhoori Singh himself had been a disgruntled employee under Lt. Col. Upmanyu. During the cross-examination the said witness has admitted that his salary had also been deducted for the same reasons as those of the plaintiff's. The plaintiff has also admitted that he had not reported the abuse to the police etc. The entirety of the evidence casts serious doubts on the incident of the alleged abuse. The plaintiff therefore miserably fails to establish the said incident.
The Ex.Pw-2/1 is the letter dated 20.03.1996 mentions of a separate incident around 29.02.1996 when the defendant No.1 (Maj. Upmanyu) had met him in the corridors and had called him 'Schedule Class, T.B. Patient'. It would be relevant to mention that the said letter dated 20.03.1996 had not mentioned of any incident dated 29.02.1996 where Maj. Upmanyu had allegedly humiliated and insulted the plaintiff in abusive/cast-specific words.
The above-said facts reveal the stark inconsistency in the evidence adduced on behalf of the plaintiff.
For the reason stated above the 'general damages' sought to the tune of Rs.25,000/- are disallowed/ rejected.
The issues No.3,4 & 6 are decided against the plaintiff. As per Issue No.6 it is decided that the plaintiff does not deserve the relief of damages / recovery of the amount of Rs.50,000/-
In view of my findings on the above issues, the suit of the plaintiff is hereby dismissed. There is no order as to cost. File be consigned to record room.
Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others Page 37 Announced in the open court on this 21st day of January, 2012. (VEENA RANI) COMMERCIAL CIVIL JUDGE, PATIALA HOUSE COURTS, NEW DELHI Suit No:06/08/1996, Shri Rishi Kumar Vs. P.K. Upmanyu/NDMC & others