Delhi District Court
Delhi Trasport Corporation vs . Madan Lal on 9 October, 2018
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Delhi Trasport Corporation vs. Madan Lal
IN THE COURT OF VIVEK KUMAR AGARWAL, CIVIL JUDGE 07,
CENTRAL DISTT., TIS HAZARI COURTS, DELHI
Civil Suit No : 820/16
CNR No. : DLCT030025892016
Date of Institution: 19.03.2016
Date of Decision: 09.10.2018
Delhi Transport Corporation (Govt. of NCT of Delhi)
I.P. Estate, New Delhi110001.
...................Plaintiff.
Versus
Sh. Madan Lal S/o Sh. Chatter Singh
R/o VillageChhdiya, Distt. Panipat,
Haryana, P.O. Chulkana
...................Defendant.
SUIT FOR RECOVERY OF RS. 1,26,278/ ALONGWITH INTEREST AND
COSTS
Present: None.
JUDGMENT :
1) The present suit has been filed by the plaintiff undertaking of Government of
NCT of Delhi, through Regional Manager namely D.S. Sharma for recovery
of amount of Rs. 1,26,278/ alongwith pendentelite and future interest @
12% p.a.
Plaintiff's version :
2) It is stated in the plaint that the defendant was working with the plaintiff as
conductor and during the course of his employment, he was charge sheeted on
account of misconduct and finally was removed from the services of the
Suit No. : 820/16 (Vivek Kumar Agarwal)
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Delhi Trasport Corporation vs. Madan Lal
plaintiff vide removal order dt. 30.10.1992. Subsequently, the plaintiff had
filed an approval application u/s 33 of ID Act, which was rejected vide order
dt. 17.02.03, passed by Sh. P.S. Teji, Presiding Officer, Industrial TribunalII,
Karkardooma Courts, Delhi and same was challenged by the plaintiff before
Hon'ble High Court of Delhi wherein the defendant filed an application u/s 17
B of ID Act and vide order dt. 16.03.06, said application was allowed and
plaintiff was allowed to pay the last drawn wages or minimum wages,
whichever was higher w.e.f. 01.06.03, subject to filing of undertaking by the
defendant that in the event of DTC succeeding in its challenge, defendant
would be liable to refund the differential amount. That subsequently, the
plaintiff succeeded in the said Civil Writ Petition, and Hon'ble High Court of
Delhi vide order dt. 09.05.12 set aside the impugned order dt. 17.02.03 and
granted the approval. It is stated that in compliance of order dt. 16.03.06, the
plaintiff had paid the minimum wages from the period of 01.06.03 to 08.05.12
for total sum of Rs. 3,58,477/ and as the plaintiff succeeded, the defendant is
required to refund the difference amount between the last drawn wages and
the amount paid under Sec. 17B i.e. minimum wages as for amount of
Rs.1,21,422/( Rs.3,58,477/ - Rs. 2,37,055/).
3) It is submitted that the plaintiff also moved and application before Hon'ble
High Court of Delhi seeking recovery of the said differential amount, which
was allowed by Hon'ble High Court of Delhi vide order dt. 05.11.15,
however, the defendant failed to refund the said amount and therefore, he also
liable to pay interest @ 12% w.e.f. 05.11.15 till the date of actual payment.
That defendant was served with a legal notice dt. 22.02.16 but to no avail and
hence, the present suit for recovery of Rs. 1,26,278/ including the interest for
amount of Rs. 4,856/ calculated @ 12% p.a. w.e.f. 05.11.15 to 31.03.16.
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Delhi Trasport Corporation vs. Madan Lal
Defendant's version :
4) Upon notice being issued, the defendant appeared and has contested the suit.
In his WS, preliminary objections are taken interalia of locusstani, cause of
action, limitation and bar of Order II Rule 2 CPC as well as u/s 37 of ID Act
It is stated that there is no agreement between the plaintiff and defendant for
return of any amount or interest and plaintiff has no right to demand the same.
In reply on merits, it is denied that plaintiff had paid minimum wages for
amount of Rs. 3,58,477/ in compliance of order dt. 16.03.06 passed by
Hon'ble High Court of Delhi. It is further denied that the defendant is
required to refund the differential amount as alleged. Again, it is submitted
that suit could have been filed up to 08.05.15 i.e. within three years from the
date of setting aside the impugned order vide order dt. 09.05.12 by Hon'ble
High Court of Delhi. All the other averments of the plaint are denied with the
request to dismiss the suit.
5) In view of the pleadings of both the parties following issues were settled vide
order dt. 27.09.16 :
1) Whether the suit of the plaintiff is barred by limitation? OPD
2) Whether the suit of the plaintiff is barred u/o II Rule 2 CPC? OPD
3) Whether the suit of the plaintiff is barred u/s 37 of Industrial Disputes
Act? OPD
4) Whether the plaintiff is entitled to the recovery of Rs. 1,26,278/? OPP
5) Whether the plaintiff is entitled to the interest? If so, at what rate? OPP
6) Relief.
6) To prove its case, the plaintiff examined one Prashant Kumar, Depot Manager,
S.N. Depot, Sarojani Nagar as PW1, who tender his affidavit Ex. PW1/A and
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Delhi Trasport Corporation vs. Madan Lal
also relied upon several documents tendered as Ex. PW1/1 to Ex. PW1/13
including the copy of legal notice, postal receipt, copy of orders passed by
Hon'ble High Court of Delhi, details of minimum wages and last drawn
wages, copy of circulars and letters as well as charge sheet and removal order.
Witness was duly cross examined on behalf of defendant. Again, one witness
was summoned by the court from the office of DTC/ plaintiff namely Anil
Kumar, Pay Bill Clerk and was examined as CW1, who proved the details of
accounts including the receiving of cheques by the defendant as Ex. CW1/A
(colly). Thereafter, evidence on behalf of plaintiff was closed.
7) The defendant failed to lead any evidence, even after availing several
effective opportunities and accordingly, his evidence was closed by court
order dt. 03.05.18 and matter was fixed for final arguments.
8) Even at the stage of final arguments, none appeared on behalf of defendant
and accordingly, the argument advanced on behalf of plaintiff have been
heard. Again file has been carefully and minutely perused and my issues wise
findings with reasons thereof are as follows :
ISSUE NO. 1 :
9) The onus to prove this issue was upon the defendant, however, the defendant
failed to lead any evidence to prove this issue. The defendant has taken this
plea in his WS stating that the suit should have been filed within three years
from the date of judgment on 09.05.12, however, this plea is not tenable as
Hon'ble High Court of Delhi had reiterated the liability of the defendant to
refund the amount vide order dt. 05.11.15 as reflected from the document Ex.
PW1/6. Accordingly, suit is well within the period of limitation as being filed
on 19.03.16. Issue no. 1 is decided in negative against the defendant.
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Delhi Trasport Corporation vs. Madan Lal
ISSUE No. 2 :
10) The onus to prove this issue was upon the defendant, however, the defendant
failed to lead any evidence to prove this issue. The defendant has taken this
plea in his WS stating that the suit is barred by Order II Rule 2 CPC as the
plaintiff should have sought the said relief in another suit of recovery pending
in the court of Sh. Tarun Sehrawat, Ld. ADJ, Delhi, however, it is to observe
that the defendant himself failed to place on record the record of the other suit
as alleged by him. Without appreciation of the pleadings and the issues of the
other suit, the plea raised on behalf of defendant is not sustainable.
Accordingly, Issue no. 2 is decided in negative against the defendant.
ISSUE No. 3 :
11) The onus to prove this issue was upon the defendant, however, the defendant
failed to lead any evidence to prove this issue. The defendant has taken this
plea in his WS, however, nothing has been stated how the suit is barred u/s 37
of Industrial Disputes Act. Accordingly, issue no. 3 is decided in negative
against the defendant.
ISSUE No. 4 & 5 :
12) Both the issues being interconnected are taken together. The onus to prove
these issues was upon the plaintiff and to prove the same, the plaintiff has
mainly relied upon documentary evidence. It has been submitted on behalf of
plaintiff that from the copy of order dt. 16.03.06, placed on record as Ex.
PW1/4, it is very clear that the plaintiff /DTC was directed to pay the wages
at the higher of the two rates between the last drawn wages and minimum
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Delhi Trasport Corporation vs. Madan Lal
wages. Again, from the record produced by the court witness examined as
CW1, placed on record as DW1/A, it is further clear that the defendant has
received the payment of Rs. 3.58.477/ in compliance of the said order of
Hon'ble High Court of Delhi till 30.04.12. It is contended that again from the
order dt, 09.05.12, placed on record as Ex. PW1/5, it is very clear that the
approval of dismissal of defendant u/s 33 (2) was granted by Hon'ble High
Court of Delhi and therefore, the plaintiff became entitled to recover the
difference amount on the wages paid to the defendant and his entitlement. It is
submitted that the wages were paid at the rate of minimum wages, however,
after approval, the defendant was entitled only for payment on the basis of last
drawn wages and therefore, the defendant is liable to refund the amount of Rs.
1,21,422/ alongwith the interest and cost. Lastly, it is submitted that the
liability of the defendant was further decided by Hon'ble High Court of Delhi
vide order dt. 05.11.15, placed on record as Ex. PW1/6.
13) Heard. It is important to observe that firstly the defendant was contesting the
suit, however, failed to appear before the court at the stage of his evidence
and neither any evidence was led nor any arguments were advanced on his
behalf. Accordingly, an adverse inference has to be drawn against him. The
conduct of the defendant is further to be noted by the fact that in his WS, he
has categorically denied of receiving the amount of Rs. 3,58,477/ from the
plaintiff, which is clearly established from the record Ex. CW1/A. Said
record includes the copy of cheques issued in favour of defendant as well as
the receipt signed by the defendant. Though, the suggestion was put up on
behalf of defendant in the cross examination of CW1 that no payment was
received by the defendant Madan Lal, however, defendant failed to lead any
evidence to prove said plea and rather opted to remain absent at the stage of
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Delhi Trasport Corporation vs. Madan Lal
evidence. Again, it is a matter of fact, as reflected from the document Ex.
PW1/6 that the plaintiff was permitted by Hon'ble High Court of Delhi to
recover the differential amount in accordance with law and in the said
application, the respondent had not appeared before the court even after being
served.
14) In view of aforesaid discussion, I come to the conclusion that it is the case where the defendant firstly sought the relief from Hon'ble High Court of Delhi and he was allowed to be paid the minimum wages by the plaintiff, however, subsequently when the order of dismissal of his service was approved by Hon'ble High Court of Delhi, he failed to refund the excess amount received by him. From the given circumstances, it is very clear that it is with the malafide intention that defendant firstly avoided to appear before Hon'ble High Court of Delhi when the application for recovery of said amount was moved by the plaintiff and again has not contested the case at the final stage and did not lead any evidence. Possibility can not be denied that the defendant had adopted the said approach to take undue advantage of his absence at the subsequent stage. As discussed above, the liability of the defendant for repayment of Rs. 1,21,422/ has been duly proved on behalf of plaintiff from the evidence of PW1 as well as by evidence of court witness CW1. However, regarding the interest, it is to observe that the interest @ 12% p.a. being on the higher side is reduced to 10% p.a. simple interest to be calculated from the date of order of Hon'ble High Court of Delhi i.e. 05.11.15 till date of actual realization of the amount.
15) Accordingly, issue no. 4 and 5 are decided in positive in favour of the plaintiff.
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Delhi Trasport Corporation vs. Madan Lal
ISSUE No. 6 Relief .
16) In view of the findings of all the above issues, suit of the plaintiff is hereby decreed with cost to the effect that plaintiff/ DTC is entitled to recover the amount of Rs. 1,21,422/ alongwith simple interest @10% per annum to be calculated from the date of order of Hon'ble High Court of Delhi i.e. 05.11.15 till date of actual realization of the amount. The defendant is also burdened with penal cost of Rs. 50,000/ as he has been avoiding his liability to refund the said amount with malafide intention as discussed in para no. 14 of the judgment. The defendant shall pay the said amount along with interest and cost within two months from date of decree, failing which the plaintiff is at liberty to approach the court by filing appropriate proceedings.
17) Decree sheet be prepared accordingly and file be consigned to the record room Digitally signed by VIVEK after due compliance. VIVEK KUMAR KUMAR AGARWAL AGARWAL Date:
2018.10.09 16:46:26 +0530 Pronounced in open court: (Vivek Kumar Agarwal) Dated: 09.10.2018 Civil Judge07, Central, Tis Hazari Courts, Delhi Note : This Judgment contains eight pages and all the pages have been checked and signed by me.
(Vivek Kumar Agarwal)
Civil Judge07, Central,
Tis Hazari Courts, Delhi
Suit No. : 820/16 (Vivek Kumar Agarwal)
CJ07(C)/THC/Delhi