Delhi District Court
Shri Jagdev Singh vs Bses Yamuna Power Ltd on 5 October, 2016
Page No. 1 of 11
IN THE COURT OF MS. CHHAVI KAPOOR, CIVIL JUDGE,
WEST DISTRICT, TIS HAZARI COURT, DELHI.
CS No. 421/12
Case No. 12582/16
Shri Jagdev Singh,
S/o Late Sh. Harbans Singh,
R/o KP256, Pitam Pura, Delhi. ..............Plaintiff
Versus
BSES Yamuna Power Ltd.,
Through its C.E.O.,
Service to be effected through
Its Legal Corporate and Enforcement Cell,
Andrews Ganj, Delhi. ........ Defendant
Date of Institution of the Suit : 19.11.2015
Date of Reserving of Judgment : 30.09.2016
Date of Judgment : 05.10.2016
JUDGMENT
1. This is a suit for Mandatory Injunction with the following facts:
2. Plaintiff claims that he had joined the services of D.V.B. (Delhi Vidyut Board)/ Erstwhile DESU in the year 1968 as a tracer and was CS No. 421/12 Jagdev Singh Vs. BSES Page No. 2 of 11 allotted an employee no. 2723 in his service record. Plaintiff was granted next promotion from the Junior Post to being a draftsman and thereafter, to the post of Architectural Assistant on 02.09.1981. It is claimed that the post of Architectural Assistant is a direct recruitment post and has a equivalent pay scale of Technical Superintendent in the scale of Rs. 400750 which now stands revised to 18003500. It is stated that as per office order no. F.250/R&P (T) /8182/119 dt. 02.09.1981, the plaintiff was granted first time bound higher scale pay on 10.10.1992 vide office order no. E/Tech./92 93/123 after a period of eleven years of service. The plaintiff was further promoted on regular basis on the same scale of pay vide office order no. F.7(25)/A&G/Tech/96/46 dated 12.01.1996. This scale of pay is claimed to be equivalent to the post of Assistant Enigneer and was subsequently revised to Rs. 22004100 pay scale. The plaintiff was regularized in this post as per office order no. F7 (25)/ A&G/Tech/96/173 dated 17.02.1999, whereafter, he was promoted and assigned the current duty charge of post of Architect vide order order no. F.7/25)A&G/Tech/78 dated 24.07.2000. It is claimed that the scale of the post of architech is equivalent to the scale of post of Executive Engineer i.e. Rs. 30004875, which was subsequently revised to Rs. 1000015850.
3. Plaintiff claims that the first time bound scale pay was required to be granted from 10.10.1991 i.e. after ten years of service and the second time bound promotion was to be granted on completion of eight years of service as Assistant Architect on 10.10.1999. The plaintiff further claims CS No. 421/12 Jagdev Singh Vs. BSES Page No. 3 of 11 that he was required to be paid current duty charges for performing the duty of Architect from 24.07.2000. It is stated that the dispute in the present suit is regarding the new pay scales of Assistant Architect on the basis of the rules of Punjab State Electricity Board. It is claimed that higher pay scales were being paid to the counter part Engineers in Punjab and it is alleged that the same pay scales were introduced in Delhi Vidhyut Board as per office order no. F.5(11) A&G/PRL/133 dt. 20.11.2001. It is claimed that the scales were applied with retrospective effects w.e.f. 01.01.1986 and arrears were also allowed to be fixed w.e.f. 31.10.2001.
4. It is alleged that despite the introduction of new pay scales in DVB, the same were not allowed to the plaintiff. The plaintiff is claiming recovery of pay as per the new pay scales paid under the Punjab State Electricity Board to the post of Architect and Assistant Architech. It is alleged that plaintiff had submitted representations in respect of the admissibility of the time scale and regarding similar pay scales of the post of Assistant Architect in PSEB, but since the plaintiff was promoted in the pay scale of Assistant Architect on 10.10.1992, he was paid the arrears from the said date. However, plaintiff states that he was entitled for this new pay scale from 10.10.1991 i.e. after a period of ten years and not eleven years. The plaintiff has not filed the copy of representation as it is stated that he has misplaced the same. Plaintiff claims that he is entitled for next higher pay scale of Rs. 775014500 w.e.f. 10.10.1992 and that on this basis, a notional fixation is required to be done and arrears are to be paid w.e.f.
CS No. 421/12 Jagdev Singh Vs. BSES Page No. 4 of 11 31.10.2001. The plaintiff further claims that he was given the current charge of post of Architect w.e.f. 24.07.2000 and that he continued on this post without break till the time, he opted for special VRS, whereafter, he was relieved from his services on 31.12.2003. Plaintiff has alleged that he had served a legal notice dated 08.08.2005 upon the management of BSES for considering his case for fixing notional pay w.e.f. 10.10.1992 with revision from 10.10.1991 and to grant him arrears w.e.f. 31.10.2001, but no action was taken upon his notice. The conduct of defendant is termed as arbitrary and unjustified and hence, plaintiff has approached the Court with the present suit for mandatory injunction with the following prayer : "That a decree of Mandatory Injunction may kindly be passed in favour of the plaintiff and as against the defendant thereby directing the defendant to grant the new pay scales on the pattern of Punjab State Electricity Board at par with Asstt. Engineer from the date of grant of higher pay scales in the post of Asstt. Architech w.e.f. 10.10.1972 (subject to revision w.e.f. 10.10.1991) in the pay scale of Rs. 775014500/ and to grant the arrears of notional onwards in the interest of justice alongwith cost."
5. In the written statement filed by defendant, it was claimed that the suit was barred by limitation as the averments of the plaint itself showed that the last cause of action arose in the year 1996 whereas the suit had been filed in the year 2005. The defendants further alleged that the plaintiff was not entitled to recover his arrears, if any post retirement, by filing a suit for injunction as an equally efficacious remedy of filing a suit for recovery was CS No. 421/12 Jagdev Singh Vs. BSES Page No. 5 of 11 available to him. It was further alleged that the plaintiff had purposely under valued the suit to avoid payment of requisite amount of court fee and accordingly, it was prayed that the suit was liable to be dismissed. The defendant had admitted that plaintiff was selected for the post of Architect Assistant in the scale of Rs. 18003500 and that he was allowed higher scale pay of Rs. 22003900 after completion of eleven years of service w.e.f. 18.10.1992. It is claimed that this pay scale was revised from Rs. 22003900 to Rs. 22004100. However, it was claimed that the plaintiff was promoted on adhoc basis till 31.03.1997, but was never promoted to the post of Architect as claimed by him, instead it was stated that the plaintiff was assigned the current duty charge to the post of Architect without any increase in remuneration. It is stated that it was clearly mentioned in the order that the assigning of current duty charge upon the plaintiff would not confer any rights for regularization/ promotion to the post of Architect for him. It is claimed that the policy regarding grant of time bound promotion was declared vide office order no. F.5(11)/A&G/PRC/217 dt. 23.07.1997, wherein it was clearly mentioned that the scheme would come into force from 01.04.1994. Accordingly, it is claimed that the question of grant of pay scale w.e.f. 10.10.1991 did not arise. It is stated that the plaintiff was promoted to the post of Architect Assistant on ad hoc basis on 12.01.1996 and hence, he was not eligible for grant of time bound promotion scheme. It is claimed that the plaintiff was promoted to the post of Architect Assistant on adhoc basis vide officer order dt. 12.01.1996 which was GroupA post CS No. 421/12 Jagdev Singh Vs. BSES Page No. 6 of 11 and as per policy regarding grant of TBPS, any officer recruited / promoted to the post of Group - A could only be granted Ist TBPS after completion of 10 years of service in the grade, therefore, the case of the Plaintiff was in no way covered for the grant of 2 nd TBPS after completion of 8 years of service. It is stated that erstwhile DVB was unbundled on 30.06.2002, whereafter BSES came into existence w.e.f. 01.07.2002.However, it is denied that plaintiff was promoted to the post of Architect. Whereas it is stated that he continued to work as an Assistant Architect till acceptance of VRS on 31.12.2003. It is claimed that the suit filed to recover arrears post retirement was in fact a suit for recovery and was not maintainable in its present form. Accordingly, it was prayed that the suit was liable to be dismissed.
6. On the basis of pleadings of the parties, following issues were framed for adjudication in the suit on 16.05.2006 : (1) Whether the suit is bad for misjoinder of parties ? OPD (2) Whether the plaintiff has no locus standi to file the present suit / OPD (3) Whether the suit is bad in view of preliminary objections No. 3 as taken by the defendant no. 2 ? OPD (4) Whether the Plaintiff is entitled to relief of mandatory injunction ? OPP (5) Relief.
CS No. 421/12 Jagdev Singh Vs. BSES Page No. 7 of 11
7. Issues were also framed by the Predecessor Judge on 13.08.2014 which are as follows :
1. Whether the Plaintiff is entitled for relief of mandatory injunction as prayed for ? OPP
2. Whether the suit is barred by limitation ? OPD
3. Whether the suit is barred u/s. 41 of Specific Relief Act ? OPD
4. Relief.
8. In his Evidence, plaintiff has examined himself as Pw1 and tendered his evidence by way of an affidavit Ex. PW1/X. He has relied upon the following documents ; Mark PW1/A i.e. Copy of Office Order dt. 24.07.2000, Mark PW1/B i.e. Copy of Joining report of Architect dt. 25.05.2000, Mark PW1/C i.e.Copy of Office Order dt. 17.02.1999, Mark PW1/D i.e. Copy of Office order dt. 12.07.1996, Mark PW1/E i.e. Copy of Office Order dt. 18.10.1992, Mark PW1/F i.e. Copy of Office order dt. 02.09.1981, Mark PW1/G i.e. Copy of Letter dt. 30.12.2003, Mark PW1/H I.e Copy of office order dt. 04.10.2000, Mark PW1/I i.e. Copy of office order dt. 23.07.1997, Mark PW1/J i.e. Copy of office order dt. 20.11.2001, Mark PW1/K i.e. Copy of Office order d. 07.07.1997, Mark PW1/L i.e. Copy of Office order dt. 07.08.1995, Mark PW1/M I.e Copy of Office order dt. 20.02.2003, Mark PW1/N i.e. Copy of Reply to Legal notice dt. 30.08.2005 and Ex. PW1/1 i.e. office copy of legal notice dt. 08.08.2005.
9. In defence evidence, one Sh. Rajeev Kwatra, Senior Manager, BYPL, Delhi has been examined as DW1. This witness has tendered his CS No. 421/12 Jagdev Singh Vs. BSES Page No. 8 of 11 evidence by way of an affidavit Ex. D1W1/A
10. Final arguments were heard by this Court. My issuewise findings are as under: Issue Nos. 1 AND 3 (framed on 16.05.2016)
11. At the time of filing of the suit, Delhi Power Company Limited was arrayed as defendant no .2 in the memo of parties. However, on 16.11.2013, the said party was deleted from the array of parties after an application u/o 1 Rule 10 CPC, filed by them was allowed. Therefore, there is no need to give finding on issue no. 1 and 3 as stated above. Issue No. 2 (framed on 16.05.2006)
12. No evidence is led by the defendant in order to show that plaintiff has no locus standi to claim for the relief. In fact, it appears to me that the issue has been incorrectly framed as no such objection to the locus of the plaintiff has been taken in the written statement of the defendant. Issue is therefore, decided against the defendant and in favour of the plaintiff.
Issue No. 4 (framed on 16.05.2006) and Issue no. 1, 2 and 3 (framed on 13.08.2014).
13. Above stated issues can be disposed off by way of a common finding, which is as under :
14. In the plaint, the plaintiff has claimed that he had joined the services of defendant in the year 1968, but in his crossexamination, he was not certain of the year when he joined the services. The witness has CS No. 421/12 Jagdev Singh Vs. BSES Page No. 9 of 11 not been able to state if he has joined the organization in the year 1968 or 1969. In his crossexamination, the plaintiff has stated that the post of Architectural Assistant was a selection post and not a promotional post whereas in further part of his crossexamination, he had admitted that he had been promoted to the post of Assistant Architect on 12.07.1996. In fact, he has admitted that he was not regularized on this post on 12.07.1996, but was regularized by UPSC on 17.02.1999. The documents filed by the plaintiff show that he was promoted on adhoc basis and was infact paid extra remuneration for holding the charge for the post of Architect Assistant. Plaintiff has not been able to show that there was any scheme of the Government which allowed fixing of higher pay (TBPS) scale before 01.04.1994. Further more, plaintiff has admitted in his cross examination that he had taken special voluntarily retirement on 31.12.2003. Defendant counsel had placed reliance upon a judgment of Delhi High Court titled "Deepak Mohan Sethi Vs. BSES Rajdhani"
(decided on 06.05.2014), wherein Justice J. R. Midha had observed that a belated service related claim was to be rejected on the ground of delay and latches. The High Court had also observed that taking VRS resulted in complete cessation of jurial relationship between the employer and the employee and the employees could not agitate for enhancement of their pay scale. It was also observed that a voluntarily retirement scheme enshrined payment of considerable amount to an employee as exgratia besides the terminal benefits at the time of seeking voluntarily retirement.
CS No. 421/12 Jagdev Singh Vs. BSES Page No. 10 of 11 It was stated in the judgment that in the business world, the scheme of voluntarily retirement was also known as the "golden hand shake" as it was a package deal of give and take. It was observed that after the amount was paid by the undertaking/company/establishment, the employee could not be permitted to raise a grievance regarding enhancement of pay scale from retrospective date. Hence, it goes without saying that an employee opting for VRS is bound by his act and cannot opt out of the terms as agreed upon. In any other case, it is clear that plaintiff is claiming recovery of arrears from the year 1991 claiming that the first time bound scale granted on 10.10.1992 after a period of 11 years was liable to be granted after a period of ten years i.e. from the year 1991. However, it appears that the plaintiff has kept quiet on his rights for all these years and has now raked up the issue after almost twelve years despite the fact that he has already taken VRS and severed all his relations with the defendant. The suit has been filed at a highly belated stage and there is no evidence that the plaintiff had objected to the grant of higher scale in the year 1992 at that time and moment. The plaintiff has very conveniently claimed that he had lost the documents by which representation was moved by him in the department, but there was no proof that any such documents were lost. Nevertheless, the plaintiff could have summoned the record from the defendant to show that any such representation was moved and was wrongfully disregarded by the defendant. Furthermore, plaintiff has suddenly woken up after almost three years from taking VRS. He has not CS No. 421/12 Jagdev Singh Vs. BSES Page No. 11 of 11 denied that special remuneration was given to him in lieu of the extra duty charge carried out by him. Resultantly, plaintiff has failed to show that there was denial of any service benefit or pay scale which was rightfully entitled to him during the course of his services. The suit is barred by limitation and has been framed as such to avoid payment of court fee. Hence, the relief of injunction is not made out and is therefore, denied. Accordingly, issues are decided against the plaintiff. RELIEF
15. In view of my findings as stated above, suit of the plaintiff is dismissed. No order as to costs.
16. Decree Sheet be prepared.
Announced in the Open Court (CHHAVI KAPOOR)
today on 05th October, 2016 Civil Judge06/West
Tis Hazari Courts, Delhi
This judgment contains 11 pages and all the pages are signed by me.
(CHHAVI KAPOOR)
Civil Judge06/West
Tis Hazari Courts, Delhi
CS No. 421/12 Jagdev Singh Vs. BSES