Delhi District Court
Sh. Balwan Singh Dahiya vs Sh. Union Of India on 24 January, 2011
IN THE COURT OF SH. GAGANDEEP JINDAL, CIVIL JUDGE05
CENTRAL, DELHI
Suit No. 440/10
IN THE MATTER OF:
Sh. Balwan Singh Dahiya
S/o Sh. Chand Ram,
R/o Village and Post office
Tihara Khurd,
Sonepat (Haryana) .................PLAINTIFF
VERSUS
1. Sh. Union of India.
Through its Secretary, Ministry of Defence,
Govt. of India,
Central Secretariat
2. The Chief of Air Staff,
Vayu Bhawan,
New Delhi. ...............DEFENDANT
Date of Institution: 24.01.2005
Date of reserved for judgment: 17.01.2011
Date of decision: 24.01.2011
SUIT FOR DECLARATION AND MANDATORY INJUNCTION.
JUDGMENT:
1. Plaintiff has filed the present suit for declaration and mandatory injunction against the defendants on the facts that he is an Ex serviceman and served Indian Air Force and retired as Sgt. on 01.06.1994. It is averred that defendants advertised in newspaper Suit no. 440/10 Page 1 of 8 for appointment for the post of F.M.T. (Civil) and he was called for interview and was selected vide letter No. 40W/2002/1/PC dated 15.01.2003. Thereafter defendants vide letter dated 25.03.03 asked plaintiff for participation in police verification and to report on 01.04.03 at 40 Wing, Air force Station, Maharaj Pur, Gwalior for joining. It is further averred that plaintiff reported on 01.04.03 but he was informed that the police verification report is yet awaited and assured him that he will be intimated when police verification will be received by the office. It is further submitted that no communication was made by defendant to the plaintiff and plaintiff went to Air Force Station, Gwalior. It was transpired that police verification report is adverse to his interest.
2. It is further averred that one Sh. Vinod S/o Sh. Jai Bhagwan R/o Village and Post office Tihara Khurd got registered false case against him U/s 324/34 IPC Vide FIR No. 839/2000, PS Shalimar Bagh, Delhi which was cancelled by police on 05.10.01 with recommendation of initiation of proceedings U/s 182 Cr.PC against Sh. Vinod Kumar. It is further averred that one Sh. Dalbir Singh, S/o Sh. Ram Chander, R/o Village and Post Office Tihara Khurd, Sonepat under the motivation of Sh. Vinod Kumar again got registered a false case U/s 323/325/606/34 IPC Vide FIR no. 126/01 PS Sadar Sonepat which too was cancelled by District Suit no. 440/10 Page 2 of 8 Inspector of police vide letter dated 13.07.01 and also recommended for suspension of Investigating officer Sh. Abhimanu HC. No. 782. It is further averred that the plaintiff was under the conception that said case was dropped against him but later on same was tried by Court of Sh. Pradeep Kumar, Ld. CJM Senepat and ultimately plaintiff was acquitted vide judgment dated 07.01.04.
It is further submitted that the plaintiff was deprived of the employment/ selection without any just cause and reason and entitled to be appointed as an F.M.I (civil) in terms of his selection.
3. In written statement defendant has submitted that plaintiff was selected to the post of F.M.T (civil) subject to clearance of his antecedent and character but the attestation form of verification of his antecedent was received from Supt. of Police vide SI No. 295/VRC dated 05.03.03, Sonepat with remark that plaintiff is facing criminal case U/s 323/325/506/34 IPC. Therefore, case was referred to CAC, HQ which clarified that Sh. Balwan Singh is under trail in court, his selection may be cancelled and next candidate may be offered appointment. It is denied that plaintiff was called to report on 01.04.03 at 40, Wing Air Force Station, Gwalior for joining. Defendants denied all other allegations made by the plaintiff in his plaint.
Suit no. 440/10 Page 3 of 8
4. From the pleadings of the parties, following issues are framed vide order dated 18.10.05.
(i) Whether no cause of action has arisen against defendants?
OPD.
(ii) Whether plaintiff has not approached the court with clean hands? OPD.
(iii) Whether plaintiff is entitled for decree of declaration as prayed for ? OPP.
(iv) As a sequel, whether plaintiff is entitled to mandatory injunction as prayed ? OPP.
(v) Relief.
5. To prove his case, plaintiff has examined himself as PW1. The defendant has examined Sh. S.K. Melkani, Administrative officer, JS Training & CAO, Ministry of Defence as DW1.
6. Arguments heard. Record file perused carefully. My issue wise findings as follow:
7. Issue No. 1: The onus to prove this is on the defendant. The defendant has to prove that there exist no cause of action against them. In the present case, the plaintiff was selected for the post of FMT (civil) vide letter dated 15.01.03 Ex. DW1/1. But later on his selection was cancelled because a criminal trial is pending against plaintiff Suit no. 440/10 Page 4 of 8 as per police verification report Ex. DW1/3. The only allegation of the plaintiff is that he has not been intimated about cancellation of his selection and no opportunity was given to him to explain his position. The defendant has failed to prove that plaintiff was intimated about the cancellation of his selection. Therefore, it violates the principle of natural justice. From these facts, a cause of action exist against the defendants. Hence this issue is decided in favour of the plaintiff and against the defendant.
8. Issue No. 2 : The onus to prove this is on the defendant. The allegation of the defendant is that plaintiff has not come to court with clean hands. DW1 Sh. S.K. Melkani has deposed that plaintiff has duly filed and signed the attestation form Ex. PW1/D1 and willingness certificate Ex. PW1/D2 in which he falsely stated that there was no case pending against him any court. But as per police verification report dated 05.03.03 Ex. DW1/3 plaintiff is facing criminal trail U/s 323,325, 506/34 IPC.
On the other hand, plaintiff (PW1) has deposed that one Sh. Vinod Kumar got registered a false case U/s 324/34 IPC vide FIR No. 839/2000 with PS Shalimar Bagh, Delhi which was later on cancelled by police vide its report dated 05.10.01 Ex. PW1/5 with recommendation of initiation of proceeding U/s 182 CrPC Suit no. 440/10 Page 5 of 8 against Sh. Vinod Kumar. PW1 further deposed that one Sh. Dalbir Singh under motivation of Sh. Vinod Kumar again got registered a false case vide FIR No. 126/01, U/s 323/325/506/34 IPC, PS Sadar, Sonepat which was too recommended by inspector of police to be cancelled vide letter dated 13.07.01 Mark 'C' and also recommended suspension of investigating officer Mr. Abhimanu, HC No. 782. He further deposed that he was under the conception that case was dropped against him, but later on trial by Sh. Pradeep Kumar, Ld. CJM Sonepat and acquitted vide judgment dated 07.01.04 Ex. PW1/7.
9. From this evidence it is proved that plaintiff is under misconception that the case U/s 323/325/506/34 IPC has been dropped on the basis of letter dated 13.07.01 Mark 'C' of Supt. of police and in good faith has mentioned in attestation form Ex. PW1/D1 and Ex. PW1/D2 that no case is pending against him. It cannot be said that plaintiff intentionally stated wrong facts in attestation form Ex. PW1/D1 and Ex. PW1/D2. Therefore, this issue is decided in favour of the plaintiff and against the defendant.
10. Issue No. 3 and 4 : The onus to prove this is on the plaintiff and to prove this issue he has examined himself as PW1 in his evidence by way of affidavit Suit no. 440/10 Page 6 of 8 Ex. PW1/A. He has reiterated the facts mentioned in the plaint. The Hon'ble Supreme Court of India in case titled as Shridhar Vs. Nagar Palika, Jaunpur, AIR1990 SC307 has observed that '' it is elementary principle of natural justice that no person should be condemned without hearing. The order of appointment conferred a vested sight in appellant to hold the post of the inspector, that right could be taken away without affording the opportunity of hearing to him. Any order passed in violation of natural justice is rendered void.'' The plaintiff has proved that he was appointed to the post of FMT (civil) vide letter dated 15.01.03 Ex. DW1/1 but later on the his appointment was cancelled by the defendant and another person was appointed as police verification report Ex. DW1/3 was against the plaintiff.
The defendant has not intimated the plaintiff about the cancellation of his selection and no opportunity was given to plaintiff to explain his position/ defence. It means that order of cancellation of selection is passed in violation of the principle of natural justice. Therefore, the said order is void. Hence the plaintiff is entitled to declaration that he has been appointed to post of FMT (civil) vide letter no. 40W/2002/1/PC dated 15.01.03 Ex. DW1/1. The defendant is directed to allow the plaintiff to join in the service Suit no. 440/10 Page 7 of 8 and to give him duty to the post FMT (civil). Hence these issues are decided in favour of the plaintiff and against the defendant.
11. Relief.
The plaintiff successfully has discharged the onus to prove his case. Therefore, he is entitled to relief of declaration that he has been appointed to post of FMT (civil) vide letter no. 40W/2002/1/PC dated 15.01.03 and further the defendant is directed to allow plaintiff to join the service and give him duty to post of FMT (civil).
Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced and signed in the open court.
(Gagandeep Jindal) Civil Judge/Central05 24.01.2011 Suit no. 440/10 Page 8 of 8 Suit no. 440/10 Page 9 of 8