Delhi District Court
Delhi vs Delhi Cantonment Board on 30 April, 2012
1 CS No. 174 /12
IN THE COURT OF SH. SUSHANT CHANGOTRA: CIVIL JUDGE(WEST)
DELHI
SUIT NO. 174/12
Sh. Gurdeep Singh,
Draftsman GradeI (Retd.),
R/o 1/25/6, Sadar Bazar, Delhi Cantt.
.....Plaintiff
Versus
Delhi Cantonment Board,
Through Executive Officer,
Delhi Cantt.
..... Defendant
Date of filing of the Suit : 08.12.1998
Date of decision : 30.04.2012
Suit for Mandatory Injunction.
JUDGMENT
1. The case of the plaintiff in brief is that he was appointed as a Draftsman in the gradeIII/ Scale of Rs. 260400/ plus 2 CS No. 174 /12 allowances. He was appointed on 27.02.76 in the employment of the defendant. The pay scale of Draftsman GrateI, II and III in all government offices were revised w.e.f 26.08.86 vide notification/letters dated 08.12.86 and 19.10.94 respectively. However, the defendant did not revise pay of the plaintiff. The plaintiff wrote several letters to the defendant but they did not revise the pay scale of the plaintiff. The plaintiff was promoted to GradeI vide office letter dated 09.01.89 in the pay scale of Rs. 14002300/. He sent several reminders to this effect but no action was taken. The plaintiff retired from the service of the defendant on 31.12.93 and he was not given the benefits of revised pay scale. The plaintiff served a legal notice dated 21.01.95 to the defendant but despite service of the legal notice defendant did not revise the pay scale of the plaintiff. Thus, the plaintiff has filed the present suit for directing the defendant to revise the pay scale of plaintiff as GradeIII Draftsman from 01.11.82 to 01.03.89 and as GradeI from 02.01.89 to 31.12.93 and for releasing the benefits to him.
2. The defendant filed written statement and took several preliminary objections. The defendant took objection that the jurisdiction of the court is barred by The Industrial Disputes Act. 3 CS No. 174 /12 The suit is not maintainable as mandatory injunction cannot be granted in absence of any declaration. The plaintiff has not served notice u/s 273 of the Cantonment Act, 1924, therefore, suit is not maintainable. On merits the defendant submitted that Delhi Administration vide their order No. F.3 (1)/811&FC dated 08.12.86 have revised the old pay scale of draftsman Grate I, II and III prior to 01.01.86 and made it applicable w.e.f 26.08.86. The defendant submitted that the plaintiff is not entitled to the revision of the pay scale in terms of the said notification of the NCT as he was appointed Draftsman GradeI on 09.01.1989 and he was not a Draftman GradeI in 1986. Defendant further submitted that the pay scale of other employees as referred in the plaint was revised vide a Board meeting dated 27.04.95 on which date the plaintiff was no more an employee of the defendant as he retired on 31.12.93. The defendant further submitted that the plaintiff has also taken the benefit of revised pay scale as DraftsmanIII till the date of his appointment as Draftsman Grate1. Defendant requested that the suit of the plaintiff be dismissed with exemplary costs.
3. Plaintiff filed his replication in which he reiterated contents of 4 CS No. 174 /12 the plaint and controverted the allegations of the defendant as made in the written statement.
4. From the pleadings of the parties following issues were framed:
1. Whether the jurisdiction of Civil Court is barred u/s 2 (s) of the Industrial Dispute act, to try the suit? OPD
2. Whether the suit is not maintainable in present form? OPD.
3. Whether the plaintiff has failed to serve the statutory notice u/s 273 of cantonment Act to defendant if so its effect? OPD.
4. Whether the suit discloses cause of action? OPP
5. Whether the plaintiff is entitled to the relief as prayed? OPP
6. Relief.
5. In support of his case plaintiff examined two witnesses. He examined himself as PW1 and Sh. Reva Shanker Gupta as PW2. The evidence of plaintiff was closed on 17.08.01. Sh. Reva Shankar Gupta has also been examined by the defendant as DW1. Defendant evidence was closed on 15.01.02. Ld. Predecessor of this court vide its judgment dated 02.03.02 dismissed the suit of the plaintiff. The plaintiff went in appeal and Ld. Appellate Court vide its order dated 15.07.11 remanded back the case with a 5 CS No. 174 /12 liberty to the plaintiff to exhibit the document. This court was directed to again hear the matter afresh.
6. In pursuance of the directions of the Hon'ble Appellate Court plaintiff was reexamined as PW1. He proved the copies of the notifications as Ex. AW1/1, Ex AW1/5 and orders issued by the Government and copies of the application and replication as Ex. AW1/6 to Ex. AW1/18. The defendant was also given three opportunities to lead defendant evidence but no fresh defendant evidence was led. It was closed.
7. I have heard arguments. Ld. Counsel for the plaintiff has argued that the case is based on the notification of the Delhi Administration dated 08.12.86 by which old pay scale of Draftsman of Grades I, II, and III were revised. The pay scale of other employees was revised by Board Meeting dated 27.04.95. Thus, the plaintiff was entitled to revised pay scale during the course of his service. Now he is entitled to benefits of the revised pay scale. The rules of Delhi Administration are applicable to the employees of Cantonment Board as per Section 3 (4) of the Delhi Cantonment Act 1924. He has further argued that notice u/s 273 of Cantonment Act was duly served on the defendant. The said notice was valid. 6 CS No. 174 /12 Hence, the suit may be decreed.
8. On the other hand Ld. Counsel for defendant argued that the provisions of The Cantonment Act, 2006 are not applicable to the present case. The plaintiff was not in service when the pay scale was revised. There was no position of GradeIII Draftsman with defendant. The prayer is not specific. The notice was not given as per section 273 of the Cantonment Act, hence suit may be dismissed.
9. I have considered the arguments and gone through the record. My issue wise findings is as under:
ISSUE NO. 1.
10. The onus to prove this issue was on the defendant. The defendant in the written statement has taken a plea that the plaintiff is a 'Workman' as defined u/s 2(s) of the Industrial Dispute Act. If plaintiff has any grievance against defendant the same can only be entertained and decided by Court of Competent Jurisdiction.
11. In this respect, Section 11 of Cantonment Act 1984 provides that, "Every Board shall, by the name of the place by reference to which the cantonment is known, be a body corporate having perpetual succession and a common seal with power to acquire and hold property both movable and immovable and to contract 7 CS No. 174 /12 and shall by the said name, sue and be sued." It has been held in ILR (1971) Punjab 282(299), Cantonment Board is a body corporate and the employees of it are not the servant of State or Central Government. Thus, the defendant in the present case also has a separate judicial identity and cannot be termed as an "industry" within the meaning of section 2 ( j ) of the Industrial Dispute Act, Industry as defined U/s 2 ( j ) of the Act means any business, 'trade', undertaking, 'manufacture' or ' calling of employers' and includes any calling, service, employment, handicraft or industrial occupation or avocation of pwrkman. In Madras Gymkhana Club Employees vs Gymkhana Club, (1967) II LLJ 720 (727), it has been held that, " Government and local authorities act as individual and the policy of the Act is to put the government and local bodies at par with private individuals. But the operations of the Government which are of administrative or Government Character cannot be regarded as an industry. Likewise, the local authorities cannot be regarded as industry unless they produce goods or render material services and do not share by delegation in Government functions or functions incidental thereto".
12. In view of the above discussion, in my opinion, the jurisdiction of this court is not barred. This court has jurisdiction to try the suit. This issue is decided in favour of the plaintiff and against the defendant. 8 CS No. 174 /12 ISSUE NO. 2.
13. The onus to prove this issue was on the defendant. The defendant has taken objection in the written statement that in the absence of relief of any declaration the suit in the present form does not lie. In the present case relief sought by the plaintiff is for revision of his pay scale. No declaration is required if there is notification in this respect. Thus, the suit is maintainable in the present form. Accordingly, this issue is decided in favour of the plaintiff and against the defendant. ISSUE NO. 3
14. The onus to prove this issue was on the defendant. The onus to prove this issue was on the defendant but the burden to prove its case, lied on the plaintiff, and for that purpose it was imperative on the part of the plaintiff to establish that he served a mandatory notice upon the defendant and the notice was valid. In Addagada Raghavamma and Anr vs Addagada Chenchamma and Anr 1964 AIR 136, 1964 SCR (2) 933, the Hon'ble Apex Court has held that, "There is an essential distinction between burden of Proof and onus of proof, burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts." The defendant has pleaded that no notice u/s 273 of the Cantonment Act was served on it. In this regard, first of all I shall reproduce Section 273 Cantonment 9 CS No. 174 /12 Board Act, 1924 which is a follows:
"No suit shall be instituted against any Board or against any member of a Board, or against any officer or servant of a Board, in respect of any act done or purporting to have been done, in pursuance of Act or of any rule or byelaw made thereunder until the expiration of two months after notice in writing has been left at the office of the Board, and in the case of such member, officer or servant, unless notice in writing has also been delivered to him or left at his office or place of abode 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 abode of the intending plaintiff, and unless the plaint contains a statement that such notice has been so delivered or left".
15. The plaintiff has proved on record the notice as Ex. PW2/9. PW2 is the employee of the defendant board. The legal notice dated 21.09.95 i.e Ex. PW2/9 was available on record of the defendant. This fact conclusively proves that the notice was properly served on the defendant.
16. The purpose and object of serving the notice u/s 273 of Cantonment Act 1924 is with a view to give an opportunity to the defendant to reconsider its position and to make amends or settle the claim if so 10 CS No. 174 /12 advised. In AIR 1982 PAT 204 (206) it has been held that, "Section 273 of the Cantonment Act provides that a notice is required to be given before instituting a suit against the Cantonment Board or its officers and language of this section is in parimateria with the provisions contained in Section 80 of CPC." The law relating to contents of section 80 CPC has been settled by the Hon'ble Supreme Court in S. vs. Surya Narayana A 1965 SC 11 wherein it has been held that, " In each case the court must see whether the following imperative provisions are present;
(1). Whether name, description and residence of plaintiff are given for enabling identification of the person;
(2). Whether cause of action and relief are set out with sufficient particularity;
(3). Whether the notice has been delivered to or left at the office of appropriate authority;
(4). Whether suit is instituted after expiry of two months of service of notice and the plaint contained a statement that a notice has been so delivered or left:
17. In the light of this settled proposition of law, perusal of notice Ex. PW2/9 clearly shows that, it categorically discloses the grievance of the plaintiff and the relief sought by him. In the said 11 CS No. 174 /12 notice the plaintiff had called upon the defendant to revise his pay scale and accordingly fix his pension. It is a settled proposition of law as has been held in Amar Nath vs. Union of India, A 1963 SC 424 that, " Notice under section 80 CPC need not to be copy of the plaint but the details which it contains should be sufficient to inform the party to whom it is served of the nature and basis of claim and relief sought." The plaintiff in his notice has categorically disclosed the said necessary ingredients.
18. Thus, the plaintiff served a valid notice on the defendant. Accordingly, this issue is decided against the defendant and in favour of the plaintiff.
ISSUE NO. 4
19. Onus to prove this issue was on the plaintiff. The case of the plaintiff is that he was not given the benefit of revised pay scale for which he is entitled. The plaintiff has proved on record the letters written by him to the defendant. Admittedly the said pay scale has not been given to the plaintiff. The non payment of the revised pay scale constitutes infraction of rights. Thus, in such circumstances, the plaintiff had a right to file the present suit as the cause of action arose in his favour. Accordingly, this issue is decided in favour of the plaintiff and against the defendant. 12 CS No. 174 /12 ISSUE NO. 5
20. Onus to prove this issue was on the plaintiff. The plaintiff by way of this suit seeks mandatory injunction qua the defendant to revise his pay scale during the relevant period and release the benefits to him. It is admitted case that plaintiff was appointed as Draftsman GradeIII in pay scale of Rs. 260400 on 27.02.76. The plaintiff alleges that he was promoted to GradeI on 09.01.89. Whereas, the defendant assert that he was appointed as Draftsman GrateI on 09.01.89. It is an admitted fact that plaintiff was Draftsman GrateI as on 09.01.89 in the pay scale of Rs. 14002300 till his retirement on 31.12.93.
21. The bone of contention between the parties is that since the plaintiff was not Draftsman GradeI as on 26.08.86, therefore, he is not entitled to benefits as per revised pay scale. The plaintiff has proved on record Ex. PW1/2 dated 08.12.86. According to this order the pay scales of Draftsman GradeI, II & III were revised and they were given notional benefit w.e.f 13.05.82 and the actual benefit from 26.08.86. The plaintiff has also proved the letter dated 03.04. 87 issued by Chief Engineer, Delhi Administration to the defendant i.e Ex. PW1/1 intimating revision of pay scales.
22. According to Section 3 (4) the order and notifications of service of employees issued by Delhi Administration apply to the defendant. The 13 CS No. 174 /12 letter Ex. PW1/1 clearly shows that the defendants were aware about the revised pay scales. The plaintiff has also proved on record the office memorandum Ex. PW1/3 dated 19.10.94 and the pay scale of Draftsman GradeI,II & III were revised notionally w.e.f 13.05.82 and actually from 01.11.83.
23. The arguments of the defendant that since the plaintiff has retired from service, therefore, he is not entitled to benefits of revised pay scale is completely ill founded. Even, as per the office memorandum Ex. PW1/3 the pay of the plaintiff had to be revised according to his experience and grade at the relevant times. The defendant admits that plaintiff was Draftsman GradeIII and at the same time a defence has been taken that the defendant is not entitled to arrears as per revised scale because he did not have a post of Draftsman GradeIII with them . Both the pleas are contradictory. Once it is admitted that the plaintiff was appointed as a Draftsman GradeIII and given the salary to that effect as per old scale, then the defendant could not have denied the benefits to him as per revised scale. The defendant is estopped from saying that plaintiff was not entitled to the revised pay scale as applicable to the Draftsman GradeIII during the relevant period.
24. Admittedly, plaintiff was having more than 7 years experience in GradeIII prior to 09.01.89 and as such he was entitled to revised pay 14 CS No. 174 /12 scale of Rs. 12002040. Similarly, the plaintiff had more than 4 years experience in GradeI before his retirement. Accordingly, he was entitled to pay scale of Rs. 14002300 atleast at the stage of his retirement. The defendant had to fix his pay accordingly.
25. Having said the plaintiff had a right to get his pay fixed as per revised pay scale, it was also necessary for the plaintiff to prove that his case has been filed within limitation period. Section 3 (1) of the Indian Evidence Act deals with the said proposition. Section 3 (1) of the Indian Evidence Act lays down that, "Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence." The clear import of Section 3 is that an obligation has been casted upon the court to dismiss the suit or application if it is barred by limitation, even if limitation is not set up as a defence".
26. In Craft Centre vs C.A. Kencherry Coil Factory, AIR 1991 Kerla 83 it has been held that, " Under Section 3 of Limitation Act, it is a duty of the Court not to proceed with the suit, appeal or application, if it is made beyond the period of limitation prescribed irrespective of the fact whether the plea of limitation has been set up in defence or not . The 15 CS No. 174 /12 court has no choice in the matter." Therefore, in view of the aforesaid proposition of law, the plaintiff is under obligation to prove that his suit has been filed within time.
27. In the present case limitation period for filing of the suit has to be governed by Section 273 of the Cantonment Act, 1924. Section 273 (3) lays down that, "No suit such as is described in (1), unless it is an action for the recovery of immovable property or for declaration of title thereto be instituted after the expiry of six months from the date of which the cause of action arises".
28. The plaintiff did serve a legal notice on the defendant for fixation of the pay. The said notice dated 21.01.95 was a statutory notice. Suit could not have been filed without serving the requisite notice. In Mohan Lal vs. State of M.P. AIR 1980 M.P 1, It has been held that, " When the cause of action is continuing, the mere fact that the plaintiff did not avail himself of all the earlier cause of actions will not prevent him from availing the same later on. It is also a settled proposition of law that when the injury is said to be continuous, the limitations runs every moment of the time during which the injuries continues." Further In Alla Reddy vs. B.V. Raghavaiah 16 CS No. 174 /12 (1966) 1, ADH, WR 218, it has been held that , " It is a well settled law that when there are successive infringements of existing or continuing rights. In said infringement the limitation under Article 113 would commence from the date when the right to sue to the plaintiff accrues,".
29. The cause of action in the present case is a continuous one. The plaintiff is seeking mandatory injunction directing the defendants to fulfill their obligation for revising the pay scale. The defendant has not produced on record any communication whatsoever to prove that the claim of the plaintiff was ever denied by them specifically. In absence of denial to fix the pay of the plaintiff according to revised pay scale, the plaintiff had a continuous cause of action to file the present suit.
30. Section 273 of the Cantonment Act does not provide that the suit has to be filed within six months of sending of the notice. It simply prescribes that the suit has to be filed within six months for arising of the cause of action. In Niranjan Vs. Union A 1960 © 391 and Sitaram vs. Ganpat Lal A 1973 M.P., it has been held that, " The sending of the notice does not give rise to a cause of action." No fresh cause of action accrued to the plaintiff on sending of the notice. This notice was also not replied too by the defendant. 17 CS No. 174 /12 Thus, there has been no denial of the request of the plaintiff for fixation of his pay according to revised pay scale prior to the institution of the suit. Even the requirement of Section 273 Cantonment Act for giving the notice has been duly complied with.
31. In M.R. Gupta vs. Union of India AIR 1996 SC689 (1), it has been held that, "Where the employee's grievance was that his fixation of initial pay was not in accordance with Rules, the assertion being of continuing wrong the question of limitation would not arise. So long as the employee is in service, a fresh cause of action arises every month when he is paid his monthly salary on the bias of a wrong computation made contrary to the Rules. It is no doubt true that if the employee's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. Thus the suit of the plaintiff qua fixation of pay is within time.
32. Now coming to the question of recovery of arrears. In M.R. Gupta vs. Union of India, AIR 1996 SC 669 (1), the principle of law has been laid and the same has also been held by our own 18 CS No. 174 /12 High Court in S.R. Krishan Lal & Others Vs. UOI W.P(C) 8777/2007 vide judgments dated 11.12.2009. It has been held that, " The claim for refixation of pay from 01.01.1986, even if granted to the petitioners, would not entitled them to claim arrears of pay and pension. The refixation would be rational, and the right to receive arrears would, at best, relate to the period of one year before the date of filing of the original applications and not before that date."
33. In the present case as per pleadings and evidence, the first application was given on 28.01.1987. Thus, the plaintiff is entitled to arrears of pay as per revised pay w.e.f. 28.01.1986.
34. According the issue is decided in favour of plaintiff and against the defendant.
RELIEF 35 In view of the findings given on aforesaid issues, suit of the plaintiff is decreed with cost. Decree sheet be prepared. File be consigned to record room after due compliance.
Announced in the open court (SUSHANT CHANGOTRA) on 30.04.2012 Civil Judge6 (West) Delhi