Delhi District Court
Mr. Ram Lal Ladwal vs Bses Yamuna Power Ltd on 10 May, 2011
IN THE COURT OF SH.SANJAY KHANAGWAL, ADMINISTRATIVE
CIVIL JUDGE (EAST), KARKARDOOMA COURTS, DELHI
Suit No.: 211/2008
Case ID No.: 02402C0331412008
IN THE MATTER OF:
MR. RAM LAL LADWAL
S/o Sh. Charan Singh
R/o B4/298, Nand Nagari,
Delhi 110093.
........ Plaintiff
VERSUS
BSES Yamuna Power Ltd.
Through its C.E.O.
BSES YPL.
Shakti Kiran Building,
Karkardooma, Delhi.
........ Defendant
DATE OF INSTITUTION : 01.05.2008
DATE OF RESERVING THE ORDER : 10.05.2011
DATE OF DECISION : 10.05.2011
SUIT FOR MANDATORY INJUNCTION AND DECLARATION
JUDGMENT
SUIT NO.211/2008 Page1/21
1. Vide this judgment, I shall decide a suit for mandatory injunction and declaration filed by the plaintiff against the defendant.
2. The essential facts for the disposal of the present suit as per plaint are that the plaintiff is working as Foreman(Electrical) GradeI having Diploma in Electricity under the defendant vide employee number 25105. He also worked with erstwhile DESU/DVB. Plaintiff was promoted as Foreman GradeI in the year 1987. After bifurcation, the services of plaintiff were placed at the disposal of BSES who is defendant in the present case. At the time of bifurcation, a civil suit filed by plaintiff in respect of claim of promotion for the post of AE(Electrical/Mech.) was pending. Defendant tried to pressurize the plaintiff to withdraw that suit, failing which he was threatened of dire consequences. Consequently defendant implicated the plaintiff in a false case and placed the plaintiff under suspension vide order dated 29.08.2005. The order was passed by the official who was not competent to pass such order. As per plaintiff, he was holding a categoryB post in DVB and under the provisions of CCS (CCA) SUIT NO.211/2008 Page2/21 Rules, 1965, the competent authority for imposing penalty on him was Additional General Manager. The order passed by an incompetent authority is beyond jurisdiction, illegal and arbitrary. A charge sheet was raised against him vide order dated 01.09.2005 and the following charges were leveled: Article1 That Sh. R.L. Ladwal, Foreman along with his associate, Sh. Jagram, Jr. Manager with a view to hamper and mislead the vigilance investigations about removal of meter in respect of K. No.123036121155 deliberately fabricated a false notice of disconnection dated 01.08.2005 and submitted the same to the I.O.
Article2 That Sh. R.L. Ladwal, Foreman along with his associate, Sh. Jagram had gone to the premises of one consumer named Kumari Nahidh Khanaka and had illegally got removed meter no.6075 144 from the said premises and also did not make relevant entries in the official records. SUIT NO.211/2008 Page3/21 Article3 That coming to know about the on going vigilance investigation in respect of k. no.123036121155 on 12.08.2005 Sh. R.L. Ladwal, and Sh. Jagram rushed to the impugned site and installed the meter at the site at 2.00P.M. on 12.08.2005 and produced fabricated note dated 12.08.2005 purported to have been issued by the B.M.(D) LNR.
Article4 That Sh. R.L. Ladwal, and Sh. Jagram had illegally restored the supply at the above said premises without receiving reconnection order or depositing of reconnection fee by the consumer.
Article5 That Sh. R.L. Ladwal, had visited the site at R298, Ramesh Park, Laxmi Nagar but did not disconnect the supply of a regd. Consumer Smt. Shameen Asgar inspite of the fact that dues to the tune of Rs.26,670/ were outstanding against the consumer.
It is stated that defendant has not considered the reply of plaintiff SUIT NO.211/2008 Page4/21 and without considering the same referred the case for regular departmental enquiry vide order dated 13.09.2005. The enquiry officer submitted his report on 03.04.2006 holding that the charges no.1 & 5 were not proved and the remaining charges no.2,3 & 4 are proved. It is submitted that the report of enquiry officer is illegal, arbitrary and the same is not as per principle of natural justice. Plaintiff has raised many questions about the competency of appointing authority. It is also submitted that the documents produced before the enquiry officer were not taken into consideration by him. Vide memo dated 22.04.2006, plaintiff was asked to give his representation against the enquiry report. Plaintiff submitted his representation dated 29.04.2006 which was not considered. Vide order dated 31.08.2006, defendant imposed the punishment of stoppage of four annual increments with cumulative effect for four years. Plaintiff filed appeal against the said order and the same was rejected but vide order dated 30.11.2006, the penalty had been reduced from stoppage of 4 increments to stoppage of 3 increments with cumulative effect for three years and the services of the plaintiff were reinstated w.e.f. 31.08.2006. Thereafter, plaintiff filed a SUIT NO.211/2008 Page5/21 mercy appeal on 23.01.2008 to the competent authority but no action was taken. Plaintiff issued a legal notice dated 27.02.2008 to the defendant. The order dated 30.08.2006 and 30.11.2006 are nonspeaking orders. It is prayed that the enquiry shall be vitiated as the same is against the principle of natural justice.
Plaintiff has prayed for decree of declaration against the defendant, thereby declaring the final order dated 31.08.2006 imposing the punishment of stoppage of four annual increments with cumulative effect and further the order dated 30.11.2006 by which the penalty had been reduced from stoppage of 4 increments to stoppage of three increments with cumulative effect with the consequential relief of paying all the pay & allowances withheld on account of the above said punishment and further to grant promotion from the date when his juniors had been promoted; to pay full pay & allowances during the period when the plaintiff placed under suspension, and to pay interest as well as damages on account of illegal acts of the defendant department. Plaintiff has also prayed for a decree of mandatory injunction in favour of plaintiff, thereby directing the defendant SUIT NO.211/2008 Page6/21 to pay full pay & allowances illegally withheld on account of imposition of punishment of stoppage of three annual increments with cumulative effect as if no punishment had ever been imposed. Further direct to pay full pay and allowances for the period of suspension and also to promote him as Asstt. Engineer from the date when his junior had been promoted. Defendant be further directed to pay the market rate of interest on all pay and allowances which had been withheld on account of punishment along with damages.
3. Defendant filed written statement and raised objections that this court has no jurisdiction to try the present suit against the order passed by the department in its official capacity. The interference of this court is restricted only to ascertain whether a person received a fair treatment. It is further submitted that in the vigilance case one another employee, namely, Jagram, Jr. Engineer was also involved besides the plaintiff. Both the employees were charge sheeted. The said Jagram has challenged the penalty imposed before the Hon'ble High Court by filing a writ petition and SUIT NO.211/2008 Page7/21 the same was dismissed. The principle of resjudicata is applicable on the plaintiff. Defendant has denied that the official who passed the aforesaid order was not competent to do so as it was not the appointing authority. Plaintiff was brought on rolls of defendant after unbundling of DVB on 01.07.2002 and he is bound by the schedule of BSES in respect of disciplinary cases. Plaintiff was placed under suspension under the signature of Sr. Manager(HR). Only after considering the reply of plaintiff, the case was referred to the regular departmental authority to enquire into the charges framed against the plaintiff vide order dated 13.09.2005. Thereafter, a domestic enquiry was conducted and after analyzing all the evidences and representations of plaintiff, the order was passed by the enquiry officer. Plaintiff was given full opportunity to defend his case and no principle of natural justice was vitiated as alleged by the plaintiff. It is denied by the defendant that any objection with respect to the alleged production of documents, particulars whereof are not given, was ever raised by the plaintiff. The report was made by the enquiry officer after appreciating all the facts. It is stated that charge nos.1 & 5 could not be SUIT NO.211/2008 Page8/21 proved due to lack of evidence. It is further stated that before passing order dated 31.08.2006, the representation dated 29.04.2006 was considered with the oral submission of plaintiff but neither the representation nor the oral submission was found satisfactory. The order dated 31.08.2006 is legal and justified. It is denied that order dated 31.08.2006 and order dated 30.11.06 are nonspeaking orders as alleged by plaintiff. The disciplinary authority vide its order dated 31.08.2006 imposed the penalty of stoppage of four annual increments in the time scale of Rs.650010900 for a period of four years with cumulative effect upon the plaintiff. Vide same order, the suspension of plaintiff was revoked and the period of suspension was treated as Leave of the kind due. Plaintiff filed an appeal before the appellate authority wherein the order dated 30.11.2006 was passed and the penalty was reduced to stoppage of three annual increments of pay in time scale for a period of three years with cumulative effect. It is submitted that the plaintiff can be considered for promotion only after the period of penalty as imposed vide order dated 28/30.11.06. Plaintiff filed a mercy petition which was duly considered and the same was rejected vide order SUIT NO.211/2008 Page9/21 no.HR(BYPL)VC1920/2005/200809/36 dated 28.04.2008. It is stated that plaintiff can be considered for promotion only after the punishment period is over. Dismissal of the suit is prayed by the defendant.
4. Replication filed by plaintiff in which he reiterated all the averments made in the plaint and denied the allegations of the written statement. It is submitted that plaintiff has not received the copy of order dated 31.08.2006. Plaintiff has filed the present suit against the order which was passed against him without any speaking order and without following the principle of natural justice. The case of plaintiff is not covered under the case decided by the Hon'ble High Court in writ petition against his colleague.
5. On 07.11.2008, the following issues were framed by my Ld. Predecessor:
(i) Whether this court has no jurisdiction to try the present suit? OPD
(ii)Whether the plaintiff is entitled to a decree of mandatory injunction? SUIT NO.211/2008 Page10/21 OPP
(iii)Whether the plaintiff is entitled to decree of declaration? OPP
(iv)Relief.
6. In evidence, plaintiff examined himself as PW1 and filed an affidavit, Ex.PW1/A. He filed the copy of suspension order dated 29.08.2005 as Ex.PW1/1; the copy of resolution dated 10.04.99 & 31.04.99 as Ex.PW1/2 & PW1/3 respectively; copy of memo dated 01.09.2005 as Ex.PW1/4; copy of plaintiff's reply dated 22.09.2005 as Ex.PW1/5; copy of enquiry report dated 03.04.2006 as Ex.PW1/6; copy of memo dated 22.04.2006 as Ex.PW1/7; copy of the reply dated 29.04.2006 as Ex.PW1/8; copy of order dated 31.08.2006 as Ex.PW1/9; copy of appeal dated 28.09.2006 and 30.11.2006 as Ex.PW1/10 & PW1/11; the copy of legal notice dated 27.02.2008 as Ex.PW1/12; copy of letter dated 08.06.2006 as Ex.PW1/13; the copy of mercy appeal dated 28.07.08 and 16.12.08 as Ex.PW1/14 & PW1/15.
Plaintiff also examined Sh. Vishal Acharya, Sr. Manager (HR) SUIT NO.211/2008 Page11/21 from BSES YPL. as PW2. Sh. Jagram was examined as PW3 and Sh. P.S. Jain, Ex. Asstt. Manager from BSES as PW4.
On the other hand, defendant examined Sh. K.S. Rawat, Section Officer from HR Department as DW1. He filed his affidavit affidavit in evidence, Ex.DW1/A and filed the copy of suspension order dated 29.08.05 of the plaintiff as Ex.DW1/1; copy of the schedule for delegation of powers in respect of enquiry as Ex.DW1/2; copy of memo dated 01.09.2005 for initiating disciplinary proceedings against plaintiff as Ex.DW1/3; copy of memo dated 22.04.2006 submitting the enquiry report as Ex.DW1/4; copy of order dated 31.08.2006 as Ex.DW1/5; copy of order dated 28/30.11.2006 as Ex.DW1/6 and the copy of order dated 28.04.2008 rejecting the mercy petitions of plaintiff as Ex.DW1/7.
7. I have heard the counsels for all the parties and perused the record. My issue wise findings are as under: ISSUE NO.I :
8. The onus to prove this issue is on the defendant. It is the SUIT NO.211/2008 Page12/21 objection of the defendant that this court has no jurisdiction to try the present suit as the order was passed by the defendant in its official capacity. Plaintiff has filed the present suit against the defendant with whom he is employed. As per plaintiff, defendant filed a charge sheet dated 03.09.2005 against plaintiff. A regular departmental enquiry was conducted against the plaintiff and vide order dated 31.08.2006 i.e. Ex.PW1/9, he was found guilty. A penalty of stoppage of four annual increments in the time scale of Rs.6500/ 10,900/ for a period of 4 years with cumulative effect was imposed vide this order. Plaintiff had challenged the said order and sought declaration of the same as null and void and also prayed for consequential relief of payment of pay and allowances stopped on account of the above punishment. Defendant has taken an objection in the written statement that this court has no jurisdiction to try the present suit. But it is not proved by the defendant how this court has no jurisdiction to try the present suit. The contention of the defendant is that the jurisdiction of this court is restricted only to look into the fact : "Whether a fair opportunity of hearing was given to the plaintiff or not". Apart from this any other interference in the order of SUIT NO.211/2008 Page13/21 department with respect to departmental enquiry is not under purview of the power of this court. In their written statement, defendant has itself admitted the jurisdiction of this court. It is true that this court has jurisdiction with respect to see whether departmental enquiry initiated against the defendant was in consonance with the principles of natural justice and a fair hearing was awarded to the plaintiff or not. On the other hand, plaintiff has also endorsed the view of defendant regarding jurisdiction of this court. In view of above discussion, it is beyond reasonable doubt that this court has jurisdiction to try the present suit. The issue is decided in favour of plaintiff and against the defendant. ISSUES NO.II & III :
9. Both the issues are taken together being interconnected. The onus to prove these issues is on the plaintiff. Present suit is filed by the plaintiff for declaring the departmental enquiry initiated against him as null and void. The defence of the defendant is that plaintiff was chargesheeted since he was found indulged in removing the meter vide K. No. SUIT NO.211/2008 Page14/21 123036121155 installed in the premises of Ms. Nahidh Khanaka and did not make relevant entries in the official records. Under article 2, it is alleged by the defendant that plaintiff along with his associate, Sh. Jagram had gone to the premises of one consumer named Kumari Nahidh Khanaka and had illegally got removed meter no.6075 144 from the said premises and also did not make relevant entries in the official records.
Under Article 3, the allegation leveled is that coming to know about the on going vigilance investigation in respect of k. no.123036121155 on 12.08.2005 Sh. R.L. Ladwal, and Sh. Jagram rushed to the impugned site and installed the meter at the site at 2.00P.M. on 12.08.2005 and produced fabricated note dated 12.08.2005 purported to have been issued by the B.M.(D) LNR.
Vide article 4, it is alleged that Sh. R.L. Ladwal, and Sh. Jagram had illegally restored the supply at the above said premises without receiving reconnection order or depositing of reconnection fee by the consumer. Since the above charges framed against the plaintiff were proved and the authority decided to impose a penalty of stoppage of four annual SUIT NO.211/2008 Page15/21 increments in the time scale of Rs.6500/ 10,900/ for a period of 4 years with cumulative effect vide order dated 31.08.06, Ex.PW1/9. Plaintiff filed appeal against the said order which was rejected. But the appellate authority passed an order dated 30.11.2006, Ex.PW1/11 vide which the suspension of plaintiff was revoked and the period of suspension was treated as leave of the kind due. The penalty was reduced from stoppage of four annual increments to stoppage of three annual increments in the time scale of Rs. 6500/ 10,900/ for a period of 3 years with cumulative effect. Plaintiff further filed mercy appeals dated 28.07.2008 and 16.12.2008, Ex.PW1/14 & Ex.PW1/15 respectively before the competent authority. It is admitted by plaintiff that the enquiry report dated 01.04.2006, Ex.PW1/6 was duly served to him. Plaintiff also filed reply dated 29.04.2006, Ex.PW1/8 against the same. It is the grievance of plaintiff that reasonable opportunity of hearing was not granted to him and the documents produced by him were not considered. He also asserted that the impugned orders dated 31.08.2006 and 30.11.2006 are nonspeaking orders and the representation/reply given by him before the disciplinary authority were not considered. As per SUIT NO.211/2008 Page16/21 plaintiff, principle of natural justice was not followed while initiating disciplinary enquiry against him. Defendant has denied the claim of plaintiff and submitted that appropriate opportunity of hearing was given to the plaintiff. Counsel for defendant contended that the representation dated 29.04.2006 and reply dated 29.04.2006, Ex.PW1/8 filed by plaintiff were duly considered. The copy of enquiry proceedings and report were duly supplied to him. The appeal filed by him was also considered and relief was given to him by reducing the penalty and his suspension was revoked. It is settled law that in every disciplinary proceedings against an employee by an employer is required to follow principle of natural justice. In an order imposing the punishment on an employee in a disciplinary enquiry for violation of rules and regulations, statutory provisions governing such enquiry should be followed and it should be ensured that no prejudice shall cause to the employee. It has been held by Hon'ble Supreme Court in 'AIR 1996 S.C. 1669(1)': "that the court should enquire whether provisions violated is of a substantive nature. Procedural provisions are generally SUIT NO.211/2008 Page17/21 meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no notice', no opportunity and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of the punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for."
"The test is one of prejudice, i.e., whether a person has received a fair hearing considering all things. Hence, the ultimate test is always the same. The test of prejudice or test of fair hearing as it may SUIT NO.211/2008 Page18/21 be called. The court is required to make distinction between total violation of natural justice (rule of andi alteram partem) violation of facet of the said rule. In other words, a distinction must be made between "no opportunity" and "not adequate opportunity" i.e. between "no notice"/ "no hearing" and "no fair hearing". For applying the rule of andi alteram partem, an authority must always bear in mind the ultimate and overriding objective underlying the said rule, to ensure a fair hearing and to ensure that there is no failure of justice."
10. In the present case, plaintiff was charge sheeted. Departmental enquiry was initiated against him. Plaintiff had given his reply and representation to the same which were considered and order was passed accordingly. It is the grievance of plaintiff that the documents which he wanted to file were not allowed by the defendant. Plaintiff has not clarified in his pleadings or in his evidence about the documents which he wanted to file and the same were not allowed by the defendant. Hence, this plea of the SUIT NO.211/2008 Page19/21 plaintiff is not tenable. In his statement, he has admitted that he was called by enquiry officer to defend his case. Plea of the plaintiff that the order dated 31.08.2006 of the enquiry officer was a nonspeaking order. I do not agree with the plaintiff. I am of the view that the same is a speaking order and all the references have been made with respect to the enquiry report, representation dated 29.04.06 and also the reply given by plaintiff. The personal hearing given to plaintiff is also mentioned in the said order. Apart from this, the order of the Appellate authority dated 30.11.2006 was passed after considering the representation of the plaintiff and the penalty was reduced to stoppage of three increments for a period of three years with cumulative effect. In these circumstances, plaintiff is failed to bring into notice of the court that no speaking order was passed against him and he was not given chance of hearing from. From the reply of the plaintiff as well as filing of his appeal and the relief awarded to him gives impression that plaintiff was heard and his case was considered in consonance with principles of natural justice. It is proved that a fair hearing was given to the plaintiff to represent his case. There are no traces of prejudice proved by SUIT NO.211/2008 Page20/21 the plaintiff in his entire case. Reliance is also placed on 'State Bank of Patiala and Ors. vs. S.K. Sharma' in which it was observed that: "onus was upon plaintiff to prove that prejudice has been caused to him when the departmental enquiry was taken place and prejudice was self evident due to the fact that he was not given any opportunity of hearing but all these ingredients are missing and no prejudice is found against the plaintiff in holding the enquiry." Reliance is also placed on '2007 Supreme Court 2976' In view of above discussion, both the issues are decided in favour of defendant and against the plaintiff. RELIEF :
11. In view of my findings on the above issues, suit of plaintiff is dismissed. No order as to cost. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
ANNOUNCED IN OPEN COURT (SANJAY KHANAGWAL)
ON 10052011 ADMINISTRATIVE CIVIL JUDGE
KKD/DELHI
SUIT NO.211/2008 Page21/21