Delhi District Court
Sh. S.M. Bhatnagar vs Bses Rajdhani on 11 December, 2012
IN THE COURT OF MS.RICHA PARIHAR, CIVIL JUDGE06 (CENTRAL),
TIS HAZARI COURTS, DELHI
CS no. 916/10/96
Unique Case ID No.02401C0018001996
In the matter of:
Sh. S.M. Bhatnagar,
S/o Late Sh. B.L. Bhatnagar,
R/o 16B, Ujjwal Apartment, Vikaspuri,
New Delhi110018. .....Plaintiff
Versus
1. BSES Rajdhani, through its CMD
BSES Rajdhani Bhawan,
Nehru Place, New Delhi
2. DVB Employee Terminal Fund, 2002,
Through its Secretary,
Sakti Sadan, Kotala Road,
New Delhi2 ....Defendants
DATE OF INSTITUTION : 06/09/1996
DATE OF RESERVING JUDGMENT : 23/11/2012
DATE OF PRONOUNCEMENT : 11/12/2012
JUDGMENT :
This is suit for declaration,permanent injunction and mandatory injunction.
1. Brief facts of the case of plaintiff are that Plaintiff Sh. S.M. Bhatnagar was working in Delhi Electrical Supply Undertaking,DESU and has retired on 31/07/1995 from the post of Sh. S.M. Bhatnagar vs. BSES Rajdhani CS916/10/96 1 OF 19 Chief Labour Welfare Officer (CLWO). As per final seniority list circulated vide Office order no. AO(G)/Admn. /R7879/102 dated 28/09/1978 of Labour Welfare Officer(LWO) the plaintiff was shown as senior to Sh. Mahender Pal, LWO at that time. Final seniority list is circulated only after disposal of representation. However, superseding the claim of the plaintiff without any valid reason Sh. Mahender Pal was promoted to the post of Senior Labour Welfare Officer with effect from 20/03/1982.
Plaintiff submits that Sh. Mahender Pal was promoted on account of recommendation of D.P.C. Held on 05/05/1981 in the office of the UPSC contradictory to the stand of DESU in respect of number of vacancies required to be filled up visa vis lying vacant. Matter could not be resolved amicably between DESU and UPSC regarding the number of posts lying vacant and plaintiff became victim of the indecisiveness and ambivalent stand of the two department from time to time resulting into inordinate delay. Plaintiff made various representations and it was considered by Law Department' of DESU. Thereafter, even though the DESU had implemented the decision of UPSC in promoting Sh. Mahendra Pal to the post of Sr. LWO yet DESU made a request to the Ministry of Home Affairs for final decision in the matter under Section 97 (2) of MCD which reads as under: "In the case of any difference of opinion between the Commission and the Corporation of any matter the Corporation shall referred the matter to the Central Government and the decision of that Government thereon shall be final."
Sh. S.M. Bhatnagar vs. BSES Rajdhani CS916/10/96 2 OF 19 No decision could be taken for a considerably long period hence plaintiff filed a Writ Petition no. 1254/86 in the Hon'ble High Court of Delhi. During the pendency of the settlement at various forums viz. Home Ministry, Government of India in respect of the claim of plaintiff Sh. mahender Pal was given further promotion as Chief Labour Welfare Officer in the pay scale of Rs. 3,000 to 5,000/ on 19/08/1988. Ministry of Home Affairs gave opinion in favour of plaintiff vide its letter no. 8 (56/88 DESU dt. 24/02/89 but no decision was taken in respect of promotion of the plaintiff over Sh. mahender Pal despite written undertaking given by plaintiff that the CS filed by claimant will be withdrawn in case the promotion could be made as per mandatory advice of Ministry of Home Affairs sought by DESU itself. When no action was taken on the representation of the plaintiff, plaintiff moved the Hon'ble High Court of Delhi and Hon'ble High Court was pleased to direct the DESU/UPSC for calling a review D.P.C. In the light of the recommendations of the Ministry of Home Affairs as per order dated 14/05/1991 however, no decision was taken by DESU/UPSC willfully and intentionally despite interim orders of the Hon'ble High Court of Delhi. Finally, while disposing the petition of plaintiff in its order dated 08/12/1993 it was opined by the Hon'ble High Court of Delhi that during the pendency of the petition it appears that respondent/MCD (DESU) sought advised under Section 97 of the DMC Act because of some conflict between the DESU and UPSC. In the order dated 14/05/1991, the Hon'ble High Court of Delhi has opined that review of the DPC may be held as per the advice given by the Department of Personnel and Training.
Sh. S.M. Bhatnagar vs. BSES Rajdhani CS916/10/96 3 OF 19 In para 14, plaintiff submits that before Hon'ble High Court of Delhi respondent/MCD (DESU) requested that "for whatever action DESU takes on the review DPC it should be prospective in nature". However, the Hon'ble High Court did not go into the question as is evident in its orders so the action was to be taken in the light of the orders of the Hon'ble High Court dated 14/05/1991.
Finally the plaintiff was promoted as per orders dated 14/02/1996, from where he retired on dated 31/07/1995. As per observations of the Hon'ble High Court of Delhi plaintiff was entitled to be considered for promotion against the vacancy of 1979 since Ministry of Home Affairs opined in favour of the plaintiff.
On 20/10/94 an office order was issued giving the payment to the plaintiff w.e.f. 20/03/1982 as Sr. Labour Welfare officer and notional promotion as Chief Labour Welfare Officer w.e.f. 19/08/1988 to 16/02/1994 with the stipulation that he shall not be entitled for the arrears of pay on this account This action in denial of arrears of pay against the promoted post is arbitrary, biased and untenable because earlier the promotion was withheld wrongly and not made despite bringing the discrepancy to the notice of the authorities. Moreover, the plaintiff was entitled for the promotion to the post of CPO in view of the work experience of plaintiff for discharging the duties of CLWO with effect from 05/01/1981 to 05/07/1982 as per R&P rules. Instead of promoting the plaintiff for the post of CPO four additional post of the ACPO were created and CLWO was to be considered for the post of ACPO. That the plaintiff was Sh. S.M. Bhatnagar vs. BSES Rajdhani CS916/10/96 4 OF 19 eligible for the promotion to the post of ACPO and even one post of Additional CPO was kept vacant for him as he fulfilled all the requisite formalities/qualification and experience for the newly created post of ACPO but here also the rightful claim of plaintiff was overlooked deliberately despite admitting the seniority of plaintiff over and above Sh. Mahendra Pal hence all the above benefits were denied to plaintiff wrongly and unauthorizedly do the plaintiff was promoted on notional basis. That plaintiff was entitled for following consequential benefits:
(a) Arrears of pay and allowances to the post of CLWO 19/08/1988 (date from which his Jr. officer was promoted to 16/02/1994.
(b) Interest at commercial rates of 24% per annum on the delayed payments.
(c) Promotion to the post of Addl. CPO with effect from 19/02/1989 i.e. on the date when the Junior Officer to the plaintiff was promoted.
(d) Promotion to the post of CPO on the date of eligibility i.e. 28/02/1990 as per R&P Rules after the retirement of the then CPO.
Plaintiff submits that the action of non granting of consequential benefits is on account of delay on part of the DESU which is arbitrary and malafide and the plaintiff is not responsible for the same as full facts were brought to the notice of the department in time at the initial stage itself. Both the defendant Department i.e. DESU and UPSC were acting as hand in glove and were shifting the responsibility upon each other so as to cause uncalled for harassment even when full facts were brought to their notice and there were no Sh. S.M. Bhatnagar vs. BSES Rajdhani CS916/10/96 5 OF 19 convincing reasons to the contrary to withhold the rightful claim of the plaintiff. Decision of the Ministry of Home Affairs was not finally responded and implemented in true spirits with retrospective effect and within time. Even the orders of Hon'ble High Court of Delhi were not implemented within a reasonable period and in the light of observations made by the Hon'ble High Court of Delhi. Instead the efforts were made to create a new dispute to implement the orders from the prospective date.
Plaintiff submits that action of defendant in depriving the monetary and consequential benefits from the retrospective effects i.e. On the date when the junior to the plaintiff i.e. Sh. Mahender Pal was promoted as Sr. LWO/Selection Grade is intentional, deliberate, arbitrary, biased and malafide and defendant is also liable to pay suitable damages. Aggrieved by the action of defendant, plaintiff served a two months legal notice under Section 478 of DMC Act on 08/03/1996 but the defendants have not replied to the same. Hence, the plaintiff has filed the present suit praying for following relief from this court.
" Prayer : a) a decree of declaration in favour of the plaintiff and against the defendant/DESU, thereby, declaring the above action and conduct in promoting Junior Officer in place of plaintiff and denial of all other consequential benefits is absolutely illegal, unfair, unjust, unconstitutional, and arbitrary.
b) To pass a decree of Mandatory Injunction in favour of the plaintiff and against the defendant, thereby, directing the Sh. S.M. Bhatnagar vs. BSES Rajdhani CS916/10/96 6 OF 19 defendant, it's agents, officials, etc. to grant;
(i) Full pay & Allowances for the post of CLWO w.e.f.
19/08/88, the date from which officers junior to the plaintiff were promoted and for which he was given notional promotion.
(ii) To promote the plaintiff as ACPO w.e.f. 19/02/89 i.e. The date when his junior officers were promoted;
(iii) To promote the plaintiff to the post of CPO on the dates of his eligibility as per the existing R & P regulations i.e. w.e.f. 28/02/90 when his juniors were considered and promoted.
(iv)Interest at the commercial rates of 24% per annum on the delayed payments along with damages.
c) Any other or further relief as deemed fit and proper by the Hon'ble Court in the facts and circumstances of the case may also be awarded in favour of the plaintiff and against the defendant along with costs of the suit."
2. The defendant no. 1, DESU in its written statement has taken the preliminary objection that suit of plaintiff is not maintainable for the want of statutory notice, for non joinder and misjoinder of the necessary party,as the plaintiff has concealed the material Sh. S.M. Bhatnagar vs. BSES Rajdhani CS916/10/96 7 OF 19 facts from this Court, as the plaintiff has already filed Writ Petition in the Hon'ble High Court of Delhi which had become infructuous on giving promotion to him after implementing the recommendations of the review DPC. That suit of plaintiff is not maintainable as some of the issues raised by the plaintiff in present suit are pending adjudication before the Hon'ble Delhi High Court in CWP no. 2695/94 filed by Sh. Mahender Pal.
In reply on merits, defendant has denied that the plaintiff was superseded or became victim of two Departments and that no decision was taken in the matter by DESU/UPSC willfully and intentionally despite interim order of the Hon'ble High Court of Delhi. Defendant submits that plaintiff has raised the issue regarding his seniority with Sh. Mahinder Pal before the Hon'ble Delhi High Court and the circumstances under which the seniority of the plaintiff was determined or re fixed by the defendant no., 1 in the Grade of Sr. Labour Welfare Officer from time to time is a matter of record before the Hon'ble Delhi High Court (CW no. 1254/86) (CMS 4615/92 and 4633/91). The petition filed by plaintiff before the Delhi High Court has become infructuous on giving promotion to him after implementing the recommendations of the review DPC.
Defendant no. 1 submits that there was only one post of Senior LWO in the undertaking in the year 1977.This vacancy was to be treated as that of 1979 as recruitment rules for this post were notified only on 21/12/1979. Since it was a single vacancy for the year it was to be treated as unreserved as per the instructions issued by the Government and was required to be filled up by the Government and the reservation carried forward Sh. S.M. Bhatnagar vs. BSES Rajdhani CS916/10/96 8 OF 19 however on the basis of the advise given by the Ministry of Home Affairs the vacancy was to be treated as reserved for Scheduled Caste to give representation to SC/ST category in Grade (A) post in the undertaking.
As the officers available in the Feeder cadre/ grade completed the requisite qualifying service in 1980 only the vacancy was carried forward to year 1980 and accordingly, four officers including the plaintiff became eligible for consideration. At this time, when the matter was pending for consideration before the Union Public Service Commission another post of General category became available and a request was made to the UPSC to fill up the post together however, the UPSC did not take into account the additional vacancy and only selected an individual for the one post reserved for SC category. Sh. Mahinder Pal, who was junior to the plaintiff (a General category candidate) was selected at no. 1 and the plaintiff was selected at no. 2 position. This panel was prepared for only the vacancy of SC category however, since Sh. Mahinder Pal was on deputation to some other departments Sh. S.M. Bhatnagar was appointed. UPSC however requested to take action for filing up both the post together and thereafter the matter was referred to Government of India, Ministry of Energy for advise.
The Department of Personnel advised as follows:
"Departmental Promotion Committee met on 05/05/1981 by that time a second vacancy had occurred by creation of an additional post in 1981. The fact that recruitment rules mentioned only one Sh. S.M. Bhatnagar vs. BSES Rajdhani CS916/10/96 9 OF 19 vacancy was not good enough reasons to ignore the second vacancy. The number given in the recruitment rules is subject to change."
"A Review DPC should now be held, it should considered promotions against the two vacancies of 1979 and 1981 separately treating the 1979 vacancy as unreserved vacancy and 1981 vacancy as reserved vacancy."
Sh. S.M. Bhatnagar filed a Writ Petition CWP 1254/86 (S.M. Bhatnagar vs. MCD & Ors.) claiming therein that he was Sr. to Sh. Mahinder Paul as Labour Welfare Officer and when two post of Sr. Labour Welfare Officers are available one for General and one for SC category, UPSC should prepare a roster as per the advise given by the Ministry of Personnel under Section 97 of the DMC Act. The Hon'ble High Court of Delhi vide its order dated 14/05/1991 held that it will be appropriate if review DPC is again held and consider the appointment of SR. Labour Welfare Officer for the two post that were available at the considered time in accordance with the advise given by the Department of Personnel. Directions were issued to hold review DPC within two months which recommended a consolidated panel for the two vacancies where Sh. S.M. Bhatnagar was placed at senior no. 1 and Sh. Mahinder Paul was placed on serial no. 2. The minutes of the review DPC were to be followed by the department as this review DPC was held as per the directions issued by the Hon'ble High Court of Delhi. As such an undertaking was admitted before the Sh. S.M. Bhatnagar vs. BSES Rajdhani CS916/10/96 10 OF 19 Court by the defendant department that they will implement the recommendations of the review DPC and as such the petition filed by Sh. S.M. Bhatnagar was dismissed as infructuous.
On the basis of the minutes of the review DPC plaintiff was promoted as Sr. Labour Welfare Officer and then Chief Labour Welfare Officer on ad hoc basis. These benefits given to the plaintiff were again challenged by Sh. Mahinder Paul in CWP no. 2965/94 pending before the Hon'ble High Court of Delhi. Defendant denies that the action in denial of arrears against the promoted post is arbitrary, biased and untenable. It is further denied that the promotion had been withheld wrongly. It is submitted that the action of the defendant no. 1 in giving promotion order dated 18/2/1993 to the plaintiff to the higher post of the CLWO in the pay scale of 3,700/ to 5,000/ notionally from 19/08/1998 is in conformity with the observations of the Hon'ble High Court of Delhi. As regards his claim for arrears, since the plaintiff had not discharged his functions of the higher post of CLWO he had been rightly given notional promotion without arrears.
Defendant no. 1 denies that plaintiff was deliberately overlooked for promotion to the post of ACPO as there were sufficient officers in the other categories available for consideration of promotion. The plaintiff cannot claim promotion to these posts as a matter of right because promotion to the post of Additional CPO are made from different channels. The Administrative Officers (Rs. 3,000/ to 4,875/) of the undertaking on completion of five years service are eligible for consideration for promotion to the post of additional CPO (Rs. Sh. S.M. Bhatnagar vs. BSES Rajdhani CS916/10/96 11 OF 19 3,700/ to 5,600/) thus defendant denies that plaintiff was entitled for the promotion to the post of CPO. It is denied that plaintiff was eligible for promotion to the post of ACPO and that he fulfilled all the eligible formalities/qualification and experience for the newly created post of ACPO. It is also denied that the rightful claim of plaintiff was deliberately overlooked by defendant no. 1 and it is submitted that since the plaintiff has not actually worked on the post of CLWO during the period for which he has been given notional promotion his claim for granting arrears of pay and interest etc. is not maintainable. He has therefore, be given the pay and allowances of one post on which he had actually worked during that period.
Plaintiff's claim for promotion to the post of Chief Personnel Officer is also unjustified as the seniority was disputed during that period and on implementation of the recommendation of the review DPC he had been given promotion to the post available in the channel i.e. CLWO . Defendant no. 1 denies that on account of delay on its part the consequential relief were not arbitrarily granted to plaintiff. It is also denied that the order of the Hon'ble High Court of Delhi were not implemented. Defendant submits that the plaintiff had already raised the issue before the Higher Court and the matter was settled there. In view of this he has no legal right to approach this court at this stage. The suit of plaintiff is not maintainable and is liable to be dismissed.
3. Defendant no. 2 D.V.B.ETBF 2002 Pension Trust has filed their Written statement and submitted that the present suit pertains to service matter regarding liability for DVB employee and it is settled law that all DVB related liability is payable by the successor Sh. S.M. Bhatnagar vs. BSES Rajdhani CS916/10/96 12 OF 19 transferee employer to the DVB. Defendant no. 2 submits that on unbundling of DVB into various successor companies as on 01/07/2002 a separate trust namely DVB ETBF 2002 has been formed under the Indian Trust Act for continuing the disbursement of pension/family pension to the existing pension beneficiaries of the erstwhile DVB and further to disburse terminal benefits to employees on Roll as on 01/07/2002 who were transfered to various successor companies on attaining the age of superannuation, exigency of death on incapacitation. That the controversy regarding who is to pay and fund for the DVB period employee and liability on account of the same was dealt with by our Hon'ble High Court in the case of T.R. Sharma vs. NDPL in WPC no. 17497/2009 wherein it was held that the respective transferee is responsible and liable for payment prior to the unbundling and privatization of erstwhile DVB and pension trust merely a disbursing agency after appropriate funding. If the Hon'ble Court grants the decree to the effect of any relief in the form of promotion to the plaintiff only then the salary revised with consequential relief if so granted the pension trust shall assist the employer if required in calculating revised pensionary benefits of the plaintiff and arrears payable if any will be disbursed for the post unbundling period provided adequate funding by the relevant transferee made first for the said liability alternatively the transferee/employer may pay the amount directly. The pre unbundling period dues are to be paid by the employer/transferee to the employee concerned. In parawise reply, defendant no. 2 has denied the contents of the plaint except those which are part of record on ground that the defendant no. 2 is not privy to the Sh. S.M. Bhatnagar vs. BSES Rajdhani CS916/10/96 13 OF 19 information i.e. set out in the plaint as the same is matter of service book record with the employer and no cause of action whatsoever exists against the defendant no. 2 because defendant no. 2 is only a disbursing authority which releases any amount only subject to rules and appropriate funding from the employer.
4. The plaintiff filed replication to the written statement of defendant no. 1 in which he has denied the contents of written statement and reaffirmed the averments of plaint as correct.
5. On completion of pleadings of parties, following issues were framed on 03/11/1998:
(i) Whether the suit is not maintainable as the issue involved are already pending adjudication before the Hon'ble High Court of Delhi? OPD
(ii) Whether the plaintiff is entitled to the decree for declaration as asked for? OPP
(iii) Whether the plaintiff is entitled to the decree for permanent injunction as asked for?
OPP
(iv) Relief.
6. I have heard the Ld. Counsels for both the parties and carefully perused the record and relevant Legal Provisions.
7. My issue wise findings are as follows: Issue no. 1: Whether the suit is not maintainable as the issue involved are already pending adjudication before the Hon'ble High Court of Delhi? OPD This issue has become infructuous as the said proceedings now are not pending but have been long considered and decided by Hon'ble High Court of Delhi. Sh. S.M. Bhatnagar vs. BSES Rajdhani CS916/10/96 14 OF 19 Issue no. 2 & 3:
Whether the plaintiff is entitled to the decree for declaration as asked for? OPP Whether the plaintiff is entitled to the decree for permanent injunction as asked for? OPP The onus to prove this issue was on plaintiff. To discharge its onus plaintiff has led his evidence. Plaintiff has led his evidence wherein he has relied upon documents Ex. PW2/1 which is the office order dated 22/06/1995, Ex. PW2/2 is the office order dated 08/12/1988. Another document marked as Ex. PW2/1 on 30/03/2005 is the R&P Regulations for the post of C.P.O and Ex. PW2/2 is the R&P Regulations for the post of C.P.O dated 22/01/1998. Ex. PW2/3 is the letter of Assistant Administrative Officer to the Secretary Union Public Service Commission. Ex. PW2/4 is the proposed Recruitment and Promotion Regulations for the post of Chief Personal Officer in DVB. Ex. PW2/10 is the minutes of the meetings of the DPC held in the chamber of G.M. (E) on 04/07/1994. Mark 'A' ,'B' and 'C' are the officer orders.
Defendant has filed Ex. DW1/1 which is the copy of decision no. 629 dated 04/06/1990 by the Chief Secretary, Delhi Administration exercising the powers of the Corporation. EX. DW1/2 is the letter showing amendment in R&P regulation for the post of Chief Personal Officer in DESU (MCD).
Mark D1 is one of the most important document on record. However none of the parties have filed certified copies of the same. Mark D1 is the photocopy of the petition filed by plaintiff in Hon'ble High Court of Delhi (CMS 4615/92 and 4633/91 and CW 1254/86). In Sh. S.M. Bhatnagar vs. BSES Rajdhani CS916/10/96 15 OF 19 this petition before Hon'ble High Court of Delhi the petitioner/plaintiff had sought the declaration that he is senior to respondent no. 4 and the office order dated 12/10/1982 showing respondent no. 4 senior to him, be quashed. Petitioner further sought declaration that he is entitled to the post of SR. Labour Welfare Officer.
On the basis of evidence on record and arguments of learned Counsels for both the parties I am of the view that the matter in issue has already been considered and decided by the Hon'ble High Court of Delhi .
Moreover, in light of the The Administrative Tribunals Act, 1985 present Court does not have jurisdiction to grant the relief prayed for by the plaintiff. Preamble of the Act reads as follows:
"An Act to provide for the adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of [any corporation or society owned or controlled by the Government in pursuance of Article 323A of the Constitution] and for matters connected therewith or incidental thereto. "
Sh. S.M. Bhatnagar vs. BSES Rajdhani CS916/10/96 16 OF 19 Section 3 (p) of Administrative Tribunals Act, 1985 defines the term "Service Matters"
as follows:
"service matters", in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, of any corporation [or society] owned or controlled by the Government, as respects
(i) remuneration (including allowances), pension and other retirement benefits;
(ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation;
(iii) leave of any kind"
The issue in controversy in present suit is related to the service conditions and jurisdiction of civil court in such matter is expressly barred by virtue of the Section 28 of the Administrative Tribunals Act, 1985 which provides as follows:
28. Exclusion of Jurisdiction of courts except the Supreme Court under Article 136 of the constitution. Sh. S.M. Bhatnagar vs. BSES Rajdhani CS916/10/96 17 OF 19 "On and from the date from which any jurisdiction, power and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any service or post or service matters concerning members of any service or persons appointed to any service or post,1no Court except
(a) the Supreme Court; or
(b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947), or any other corresponding law for the time being in force shall have, or be entitled to exercise any jurisdiction, powers or authority in relation to such requirement or such service matters."
As the matter has already been considered by the Hon'ble High Court of Delhi and is also beyond jurisdiction of this Court, the decree of declaration and permanent/mandatory injunction as prayed can not be granted in favour of plaintiff. Thus these two issues are decided against plaintiff and in favour of the defendants.
8. Relief.
In view of above observations plaintiff is not entitled to the relief as prayed hence suit of plaintiff stands dismissed.
No orders as to cost.
Sh. S.M. Bhatnagar vs. BSES Rajdhani CS916/10/96 18 OF 19 Decree sheet be prepared accordingly.
File be consigned to record room as per rules.
th Announced in open court on this day of 11 December, 2012.
(Richa Parihar) CJ06/Central 11.12.2012 Certified that it contains 19 (nineteen) pages signed by me.
(Richa Parihar) CJ06/Central 11.12.2012 Sh. S.M. Bhatnagar vs. BSES Rajdhani CS916/10/96 19 OF 19