Delhi District Court
(Central) Tis Hazari Courts Delhi vs Narender Kumar on 4 June, 2012
1
IN THE COURT OF SH. SANJEEV AGGARWAL LD ADJ03
(CENTRAL) TIS HAZARI COURTS DELHI
RCA No.36/11
04.06.2012
Food Corporation of India
Through its District Manager,
District Office Shakti Nagar,
Delhi ......APPELLANT
Versus
Narender Kumar
R/o 24 B, Block C, Pocket B,
MIG Flats, DDA, Shalimar Bagh,
Delhi110088 ........RESPONDENT
Date of Institution of the Appeal : 16.11.2011
Date on which order was reserved : 07.05.2012
Date of decision : 04.06.2012
O R D E R
1. Vide this order, I shall dispose off the present appeal filed by the defendant against the judgment and decree dated 06.09.2011, passed by Ld. Trial Court and also an application for condonation of delay in filing the present appeal(parties are hereinafter being referred to by their respective status before the trial court)
2. Regarding the application for condonation of delay, it is stated by the defendant that defendant had obtained the certified copy of the impugned judgment dated 06.09.11 on 16.09.11 and thereafter RCA No. 36/11 Food Corporation of India vs. Narender Kumar 2 the said file was sent to the Legal Department of the defendant corporation and the said file was received only on 14.10.11 and appeal was thereafter filed on 17.11.11 and the delay if any had taken place due to administrative exigencies in preparing the present appeal.
3. Reply has been filed by the plaintiff to the said application denying the averments made in the said application.
4. It is settled law that the provisions of limitation Act have to be liberally construed and as far as possible all the matters should be decided on merits rather than on technicalities. The defendant is a large public corporation, therefore some time may have been consumed in preparing or finalizing the appeal and in any case delay is not of such nature which warrants dismissal of the appeal on said ground. The said delay is accordingly condoned in the interest of justice. The application U/s 5 of Limitation Act is allowed.
5. Regarding the present appeal the brief facts which can be culled out from the impugned order of the Trial Court are as under:
Vide this judgment I shall dispose off instant suit for declaration and mandatory injunction filed by the plaintiff against the defendants. It is the case of the plaintiff that the plaintiff joined services of Food Corporation of India on 03.05.1971 as Astt. GradeIII(Depot) and with passage of time was promoted from Astt. GradeIII RCA No. 36/11 Food Corporation of India vs. Narender Kumar 3 (Depot) and his promotion was to take effect from the year 1972 on notional basis. Thereafter he was further promoted to the post of Asst GradeI(Depot) in the year 1980 on notional basis and since then he is working on this post to the entire satisfaction of the superiors. As stated defendants have prepared seniority list of all the superiors working in the FCI in the North Zone as AGI(D) wherein name of the plaintiff find mention at Sr. No. 582.
Defendants vide order No .128/1200/EI bearing No. EI/2(4)AM(D)/2000/NZ dated 02.08.08 have promoted various employees of the corporation who were working as AGI(D) to the post of Assistant Manager(Depot) upto serial No. 1336 and also made adhoc promotions, however plaintiff was not promoted. Representation was made to the defendants vide letter dated 05.08.00, however no action has been taken on the same. As stated the act of defendants in depriving the plaintiff of his legal due promotion from AGI(D) to AM(D) is against all canons of justice and RCA No. 36/11 Food Corporation of India vs. Narender Kumar 4 accordingly it was prayed that defendants be directed to promote the plaintiff from the post of AGI(D) to AM(D) w.e.f 02.08.00 and it be also declared that plaintiff is entitled to the dues as mentioned in para No. 8 of the plaint.
Written Statement on behalf of the defendants was filed in which preliminary objections were raised to the effect that the plaintiff has not come to the court with celan hands, he has no locus standi to file the present suit and the suit is not maintainable. On merits, it was not denied that employees of the defendants were promoted to the post of AM(D) upto serial No.1336. However, it was stated that the plaintiff was in the field of choice for promotion at Zonal Seniority No. 582 and plaintiff had been issued a memo under minor penalty vide order No. PF/N/62/Estt.II dated 10.03.92 and 07.04.92 as well as he was chargesheeted under minor penalty clause decision on which was pending. It was denied that no action has been taken on the RCA No. 36/11 Food Corporation of India vs. Narender Kumar 5 representation of the plaintiff and it was submitted that the representation has already been forwarded to the Regional Office on 11.08.00 and the Regional office had forwarded the same to the Zonal Office on 19.09.00 for consideration. It was denied that there is any right of the plaintiff for being promoted from AGI(D) to AM(D) in the above circumstances. Rest of the contents were denied and it was prayed that suit of the plaintiff be dismissed.
Replication was also filed in which contents of the plaint were reiterated and those of the Written Statement were denied.
On the pleadings of the parties following issues were framed vide order dated 05.02.03:
(i)Whether the plaintiff is entitled to the relief of declaration and injunction as prayed for ?
(ii)Relief PW1 in support of his case examined PW1 Pascal Minj, PW2 Smt. Saroj Bala, PW3 RCA No. 36/11 Food Corporation of India vs. Narender Kumar 6 Nasib Chand, PW4 Sh. J.S.Punia and examined himself as PW5. Defendants in support of their case examined DW1 Sh.
O.P.Makhija.
6. The aforesaid order has been challenged by the appellant on the following main grounds:
a) That the suit filed by the plaintiff was premature one, as his representation made on 05.08.00 was immediately forwarded to the Regional office and thereafter to zonal office on 19.09.2000. The plaintiff without waiting for the decision of the said representation filed a suit which was premature.
b)That the Ld. Trial court had failed to appreciate that the defendant corporation is governed by Food Corporation of India, Staff Regulations 1971 and other efficacious remedies were available to the plaintiff under the provisions of said regulations which were not availed by and the civil suit is not maintainable.
c) That the trial court committed grave illegality while proceeding further with the case after 31.10.2005, when the respondent got promoted from A.GI(D) to A.M(D). It is submitted that disciplinary proceedings against the respondent could not be concluded and the zonal promotion committee had to keep its recommendations for promotion of the plaintiff in sealed cover for want of reply from the plaintiff but the same was ultimately decided on 31.10.2005 after receipt of RCA No. 36/11 Food Corporation of India vs. Narender Kumar 7 the reply on behalf of the plaintiff on 02.04.02 and thereafter he was subsequently promoted w.e.f 31.10.2005 after the conclusion of the disciplinary proceedings initiated against him, therefore the present suit was not maintainable.
d)That Ld. Trial court had also erred in law, by passing decree in favour of the respondent, directing the defendant to promote the plaintiff w.e.f 02.08.2000, whereas the plaintiff was imposed with the penalty of censure by the defendant corporation. It is submitted that as regards the promotion of employees who had been awarded the penalty of censure they can only be promoted from prospective date and not from retrospective date, as the imposition of said penalty shows that the employee had not been completely exonerated.
e) That the Ld. Trial court had failed to appreciate that the respondent cannot be allowed to take advantage of his own wrongs as he had not filed any reply to the memo issued against him, therefore he was not entitled to be promoted w.e.f 02.08.2000, therefore it is stated that the judgment and decree dated 06.09.2011 has been passed contrary to the law and facts and same is liable to be dismissed with cost.
7. Reply has also been filed to the grounds of the appeal filed by the defendant in which averments made in the appeal have been denied and it is stated that there is no infirmity or illegality in the judgment passed by Ld. Trial Court which has been rightly passed by giving reasons for the same, therefore the present appeal has no RCA No. 36/11 Food Corporation of India vs. Narender Kumar 8 merits, therefore the same is liable to be dismissed.
8. I have heard Ld. Counsel for the defendant/appellant Ms. Naina Kejriwal and Ld. Counsel for the plaintiff/respondent Sh. Tara Singh and perused the record.
9. Regarding the first ground of the appeal that the suit filed by the plaintiff before trial court was premature, as the representation made by the plaintiff on 05.08.00 was immediately forwarded to the Regional Office on 11.08.00 and thereafter the Regional office had forwarded the same to the Zonal Office on 19.09.00, but the plaintiff without waiting for disposal of the said representation filed the present suit on 12.09.00 which is premature. The said argument of Ld. Counsel for the defendant is without any substance as plaintiff admittedly made representation to the defendant on 05.08.00 and he filed the present suit only on 11.09.00 after more than one month of giving representation. The defendant organization was under an obligation to dispose off the said representation at the earliest and one month time was more sufficient to dispose off the said representation and in default of the same the plaintiff was fully justified in filing the suit in question for protection of his legal rights.
10. Regarding the next ground of the counsel for the defendant that the plaintiff had other equally efficacious remedy available under the Food Corporation of India, Staff Regulations 1971 which he should have exhausted before filing the present suit, therefore the present suit was not maintainable. The said argument of Ld. Counsel for the defendant/appellant is also not tenable in law. As per Section RCA No. 36/11 Food Corporation of India vs. Narender Kumar 9 9 of the CPC, the Civil Courts have jurisdiction to try all the suits of civil nature excepting the suits for which cognizance is expressly impliedly barred. Counsel for the plaintiff has failed to place on record such regulations of the defendant/appellant organization which shows that plaintiff had equally efficacious remedy under the Food Corporation of India, Staff Regulations 1971 for the redressal of his legal right regarding non promotion on 02.08.00, therefore the said plea is also not sustainable, regarding the third ground of appeal of the defendant/appellant, it is stated that since disciplinary proceedings against the plaintiff could not be concluded, therefore the Zonal Promotion Committee had to keep its recommendations for promotion of the plaintiff in a sealed cover as he had not given any reply to the memos issued to him regarding initiation of censure proceedings and during the pendency of the suit on receiving the reply made by the plaintiff to the said memo on 02.04.02 and on conclusion of pending disciplinary proceedings against the respondent he was subsequently promoted to the post of Assistant Manager(Depot) w.e.f 31.10.2005.
11. The said argument of Ld counsel for the appellant is also without any substance, as even if the plaintiff had not filed any reply to the memo issued to him regarding the initiation of censure proceedings initiated against him, which were initiated vide memos dated 10.03.92 and 07.04.92 and consequently the plaintiff was chargesheeted. Even then if the plaintiff despite repeated opportunities was not submitting any reply to the said memos RCA No. 36/11 Food Corporation of India vs. Narender Kumar 10 mentioned above, then what stopped the defendant corporation from proceeding with the inquiry initiated vide memos dated 10.03.92 and 07.04.92, for which plaintiff had been chargesheeted and thereafter concluding the said disciplinary proceedings against the respondent as per material available on the record with them, the defendant corporation could not have gone into state of inertia for non reply of the said memos by the plaintiff. The department had an option to proceed with the inquiry in the absence of any reply given by the plaintiff, despite repeated opportunities, in any case they could not have taken 8 years for concluding the said proceedings for minor penalty which were initiated on 10.03.92 and 07.04.92, whereas the promotion in question was effected w.e.f 02.08.00. In any case the principle of natural justice requires that inquiry of the plaintiff for which he had been chargesheeted for minor penalty vide memos dated 10.03.92 and 07.04.92 should have been the conclusion within a short span of time atleast within the period of 8 years when the promotion in question was made, consequently there appears to be a inordinate delay on the part of the defendant corporation in concluding the said inquiry for which the plaintiff had been chargesheeted for imposition of minor penalty.
12. The defendant corporation has admitted in para 5 of the Written Statement that plaintiff was in the field of choice for promotion at seniority No. 582, but since the plaintiff had been issued the memos dated 10.03.92 and 07.04.92 and he had been chargesheeted under minor penalty clause and the case was still RCA No. 36/11 Food Corporation of India vs. Narender Kumar 11 awaiting decision of the disciplinary authority due to non reply of he plaintiff to the said memos issued to him, therefore the zonal promotion committee had kept its recommendations in a sealed cover. The said recourse taken by the defendant organization was not correct, as admittedly the plaintiff was in the zone of promotion. Even if he had been later on awarded minor penalty of censure then he should have been given promotion at the time of his turn and not from the date of conclusion to his departmental inquiry, as is being argued by Ld. Counsel for defendant corporation.
13. The very withholding of the promotion of a person or an employee is itself minor penalty independent of other minor penalties and non promotion of an government employee in such a scenario, where he has already been imposed the penalty of censure can be said to be case of double punishment, once for the minor penalty of censure and also withholding the defendant from his promotion for the same reasons. Even otherwise, the plaintiff who had examined himself as PW5 had stated in his affidavit that certain similarly situated persons including one C.B.Bhatnagar, M.K.Malik and J.S.Saluja were given promotion, though the seniority to the plaintiff was much higher in the seniority list qua them and it is also mentioned in the affidavit of the plaintiff that against said persons there were pendency of vigilance/departmental proceedings. To the said assertion made by the plaintiff in his affidavit, no cross examination has been carried out by the counsel for defendant corporation, therefore the allegations made by the plaintiff in his RCA No. 36/11 Food Corporation of India vs. Narender Kumar 12 affidavit in this regard have gone unrebutted and unchallenged, therefore the same is deemed to have been admitted by the defendant corporation. Since the plaintiff was also similarly situated,as there were the three other persons mentioned above who were also below the plaintiff in the list of seniority of the employees who were to be considered for promotion and against whom departmental/vigilance inquiry were also pending and they were still promoted, whereas the case of the plaintiff was not considered on the ground that he was chargesheeted for the imposition of minor penalty and his case was kept in a sealed cover. The said stand taken by the defendant corporation was not correct and was contrary to the law of land and is also against Article 14 of the Constitution of India, which mandates equality before law to the persons who are similarly situated and which works against discrimination meted out to the persons who are similarly situated, therefore in these circumstances, the case of the plaintiff should have also been considered by the departmental promotion committee and he should have also been promoted on 02.08.00 alongwith three other persons, who were on the worst footing than the plaintiff, as against them departmental/vigilance inquiries were pending and who were also below the plaintiff in the list of seniority, yet their case was considered and they were promoted, for which no reasonable explanation has been given by the defendant corporation.
14. Even otherwise, DW1, the witness of the defendant corporation has himself admitted in his cross examination that penalty of censure RCA No. 36/11 Food Corporation of India vs. Narender Kumar 13 awarded to the plaintiff was no bar for considering the plaintiff for promotion and infact even representation against censure was pending which has not been decided so far. The very admission on the part of the employee of the defendant corporation shows that even the imposition of penalty of censure was no bar for considering the plaintiff for promotion at the time of his promotion carried out on 02.08.00 and further even the representation of the plaintiff against censure was still pending decision before the departmental promotion committee and no decision had been taken on the same. It also shows that the defendant corporation takes inordinate time in disposing off the representations of their employee(s) which should be disposed off at the earliest, so that the valuable rights of an employee should not be defeated by the passage of time. Even otherwise, it is admitted case of the defendant corporation that the representation of the plaintiff regarding his non promotion dated 05.08.00 was never decided, it also shows that the defendant corporation does not follow the principles of natural justice, as the said representation should have been decided at the earliest, so that an employee could take recourse of legal proceedings available for him as per law and the defendant corporation cannot sit on the said representation(s) adinfinitum thereby destroying the legal rights of the employees by mere passage of time.
15. Regarding the arguments of Ld. Counsel for the defendant corporation that since the plaintiff had been awarded the punishment of censure, therefore he could have been only promoted from RCA No. 36/11 Food Corporation of India vs. Narender Kumar 14 prospective date and not from retrospective date, since after penalty of censure had been imposed upon a employee, he cannot be treated as completely exonerated. Counsel for the respondent has failed to show any bye law or rules of the defendant corporation on the record which stipulates that such an employee can only be promoted from prospective date who has been awarded the punishment of censure and not from the date when his promotion was due. In the absence of any rules and regulations of the defendant corporation having placed on the record, the said plea taken by the respondent corporation is an empty plea which has no legal force.
16. It is settled law that where two views are possible on the evaluation of evidence, then the view given by the trial court has to preferred, unless the same is totally perverse and is contrary to the law of land and the facts, in the absence of the same the appellate court cannot substitute its own view in place of the view reached by trial court, if the same is totally confirmity with the law. From the aforesaid discussion, it appears that there is no infirmity or illegality in the judgment dated 06.09.11 passed by Ld. Trial Court, it is well supported by the reasons given in support of the same, therefore the present appeal has no merits, same is dismissed. Decree sheet be drawn.
17. TCR be sent back along with the copy of this order. Thereafter, appeal File be consigned to the record room.
ANNOUNCED IN THE OPEN (Sanjeev Aggarwal)
COURT ON 04.06.2012 ADJ(Central03)
Delhi/04.06.2012
RCA No. 36/11
Food Corporation of India vs. Narender Kumar 15 RCA No. 36/11 Food Corporation of India vs. Narender Kumar