Delhi District Court
Sh. Manohar Singh vs National Thermal Power Corporation ... on 17 September, 2016
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT ; TIS HAZARI COURTS : DELHI
CS/DJ/ No. 12587/16
In re:
Sh. Manohar Singh
S/o Sh. Sampuran Singh
R/o B-33, Bhagwati Garden,
Uttam Nagar, New Delhi - 110 059.
............. Plaintiff
Versus
1. National Thermal Power Corporation Ltd. (NTPC)
Through its Chairman and Managing Director,
7, Scope Complex, New Delhi - 110 003.
2. Sh. P.P. Singh
Then General Manager, BTPS
C/o Chairman and Managing Director,
National Thermal Power Corporation Ltd.
7, Scope Complex, New Delhi - 110 003.
.........Defendants
Suit for Damages of Rs.10,31,514/-
Date of institution of present suit : 04.06.2005
Date of receiving in this court : 09.03.2016
Date of hearing arguments : 17.08.2016
Date of Judgment : 17.09.2016
JUDGMENT
Plaintiff has filed the present suit for damages of Rs.10,31,514/- against the defendants pleading that plaintiff retired as Deputy Manager (Safety) on 31.08.2003 from National Thermal Power Corporation Ltd. (hereinafter referred as NTPC) a Public Sector Undertaking, the defendant No.1. Defendant No. 2 was the General Manager and head of Safety Department, Badarpur Thermal Power Station of defendant no. 1, at relevant time. The plaintiff joined the services with defendant no. 1 as Supervisor Grade II, in Control & Instrumentation/Operation and Maintenance main Department in the year 1982. Earlier plaintiff was working with Intelligence Bureau, Ministry of Home Affairs, CS No. 12587/16 Manohar Singh vs. National Thermal Power Corporation Ltd. Page No. 1 of 24 Government of India and applied through proper channel for the post of Supervisor Grade -I with defendant no. 1. The officials of defendant no. 1, however, appointed the plaintiff as Supervisor Grade-II with an assurance that he would soon be appointed as Supervisor Grade-I on completion of one year of his services and therefore, plaintiff joined the services as Supervisor Grade-II, in Control & Instrumentation/ Operation and Maintenance main Department of Defendant No.1 on 28.01.1982. The plaintiff worked honestly, sincerely and to the entire satisfaction of senior officials of the defendant no. 1. The plaintiff had achieved the various honours and appreciation during his service tenure from the defendants.
2. It is further stated that the plaintiff was promoted as Supervisor Grade-I in the year 1985, Assistant Engineer (Safety) in 1988, Engineer (Safety) in 1992, Senior Engineer (Safety) in 1995 and Deputy Manager (Safety) in 1999. The next promotion of Manager (Safety) of the plaintiff was due in the year 2002, but unfortunately the said promotion was put (under seal cover) due to false and malicious department inquiry proceedings against the plaintiff due to which the plaintiff had to retire from services on superannuation as Deputy Manager (Safety) on 31.08.2003. Consequent upon the promotion and transfer, in September 1999, the plaintiff joined the duties at Badarpur Thermal Power Station (BTPS), as Deputy Manager (Safety) and at that juncture, defendant no. 2 was the head of BTPS and Safety Department and soon thereafter defendant no. 2 was promoted to the rank of General Manager (BTPS).
3. It is further stated that on 07.02.2000, the plaintiff was provided with a quarter (B-167/ATS) on temporary basis to store his household goods. The defendants also promised that a proper quarter would be allotted shortly to the plaintiff. The said quarter was lacking even with the basic amenities. The plaintiff made several complaints to the service department to rectify the deficiencies, but to the surprise of the plaintiff, the officials of the service department declined to remove or rectify the deficiency in the absence of any allotment order. Due to CS No. 12587/16 Manohar Singh vs. National Thermal Power Corporation Ltd. Page No. 2 of 24 non-cooperative and unethical attitude of the officials of the defendant no.1, the plaintiff was perforce to stay in the said field hostel and his family stayed at House No. WZ-M47/A, New Mahavir Nagar, New Delhi.
4. It is further stated that the sufferings of the plaintiff was continued for the period of five months and at last on 21.06.2000 another quarter bearing no. C- 74/ATS, that too with various deficiencies, was officially allotted to the plaintiff and the plaintiff shifted on 07.07.2000 in the said quarter with a promise of the officials of defendant no.1 that all deficiencies would be corrected within a week.
5. It is further stated that the officials of the defendant no.1 could not keep their word and took no steps to remove the deficiencies, which resulted into the plaintiff lost his balance in the toilet on 11.07.2000 due to improper fixation of footrest and consequently the plaintiff fell backward in said toilet, thereby sustaining the grievous injuries to the lower tip of backbone (coccxydynia). The plaintiff also submitted the official (off-site) accident report to the concerned official of the defendant no.1 vide note dated 22.07.2000. As a result, the said footrest was demolished and reconstructed on 11.08.2000. The plaintiff duly endorsed the above job. Despite repeated requests, however, majority of deficiencies remained unattended due to reckless and lackadaisical attitude of the defendant no.1.
6. It has been further stated that finding no other remedy, the plaintiff was constrained to file a complaint before the Hon'ble District Forum - II, New Delhi against the defendants and Union of India. In the said complaint case, the plaintiff craved the indulgence of the Hon'ble District Forum towards the deficiencies in the basic amenities, which made the said quarter inhabitable and dangerous for its residents. The defendants contested the said complaint case and the same was dismissed by the Hon'ble District Forum, New Delhi vide its order dated 08.11.2002. Appeal against which was ending before the State Commission.
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7. It is further stated that the senior officials of the defendant no.1 along with the defendant no. 2 took the said complaint case before the Hon'ble District Forum very offensive. The defendant no.2, in connivance with other senior officials of the defendant no.1, with a view to harass and torture the plaintiff mentally and physically and to tarnish the fair image of the plaintiff, carried out an administrative coup by usurping the powers of disciplinary authority to impose major penalty against the plaintiff. The defendants with their malafide intention and ulterior motive published a charge sheet/memorandum under reference no. BTPS-04-21308-2001/262 dated 23.11.2001 proposing to hold an inquiry against the plaintiff under Rule 25 of NTPC Conduct, Discipline and Appeal Rules (NTPC CDA Rules), whereby directing the plaintiff to submit a written statement of defense within 15 days on receipt of the said memorandum. The charges related to alleged production of forged rent receipts, withdrawing of HRA and HRR etc. by showing a house on rent which was otherwise his permanent address and leave address in Delhi.
8. It has been further stated that the above charges levied by the defendants against the plaintiff were false and fabricated charges, which were false even to the knowledge of the defendants. The defendants under their nefarious strategy to malign the fair image made the charge sheet public and also displayed the same on the notice board. The said illegal and unlawful act of the defendants caused mental agony, humiliation and wrecked the reputation of the plaintiff in the eyes of his colleagues and other employees of the defendant no.1. As a result of which, the plaintiff suffered severe depression and further which added to his woes being heart patient, whereas the concerned doctors had repeatedly advised the plaintiff to avoid mental stress etc.
9. Plaintiff informed the defendant no.2 vide letter dated 08.12.2001 that at his instance, the act of publishing and displaying the said charge sheet on the notice board was malicious and unlawful and the same was committed with a CS No. 12587/16 Manohar Singh vs. National Thermal Power Corporation Ltd. Page No. 4 of 24 view to tarnish the fair image of the plaintiff. The plaintiff further informed that due to his unwarranted act, he has suffered mental stress, agony and trauma.
10. It has been further stated that but as per the modified schedule of delegations of powers in respect of disciplinary matters under NTPC Conduct Rule, the defendant no.2 was not empowered to issue the said chargesheet to the plaintiff. The plaintiff has also written several letters to the defendant no. 2 along with copy of relevant portion of modified schedule of delegation of powers in respect of Disciplinary matters under NTPC, but the defendant no.2 with his ulterior motive was deliberately acting in connivance with the senior officials of the defendant no.1 to cause the criminal defamation for which they are liable to be sued for damages.
11. It has been further stated that defendants also adopted delinquent and improper procedure to harass the plaintiff, which clearly proves that the acts of the defendants were due to vengeance and for causing mental stress and financial loss to the plaintiff. The defendant No. 2 vide his office order dated 04.02.2002 informed that one Sh. Paritosh Mishra, Manager (HR-ER & Welfare), HR Department had been appointed as Presiding Officer to present the case and adduce evidence in support thereof before Sh. R.S. Rathee, Dy. General Manager (EMD), NTPC, the enquiry officer. The plaintiff immediately after receiving the information made objection that the appointment of the presiding officer was illegal as according to Rule 76-A, Delhi Factories Act "No welfare officer shall deal with any disciplinary case against a worker or appearer before a Conciliation Officer or in a Court or Tribunal on behalf of the factory management against a worker or workers". But defendants did not take any steps to remove misdeed rather started avoiding plaintiff on one pretext or other. Plaintiff had no option but to approach the Chief Inspector of Factories (NCT) vide letter no. BTPS/MS- 21308/2002-56 dated 15.06.2002 and when he initiated proceedings, defendants deliberately made a statement that one Sh. B.P. Roy Choudhary, Dy. Manager (HR-ER) is the designated Welfare Officer and not Sh. Paritosh Mishra.
CS No. 12587/16 Manohar Singh vs. National Thermal Power Corporation Ltd. Page No. 5 of 24
12. It has been further stated that due to the unwarranted acts of defendant and a false and malicious inquiry proceedings against the plaintiff, the plaintiff was not promoted to Manager (Safety) and had to retire on superannuation on 31.03.2003 from the same post of Dy. Manager (Safety). Defendants intentionally delayed and did not complete the inquiry in time despite directions of the Corporate Vigilance Department vide circular dated December 15, 1998 and prevented the plaintiff in getting the next promotion of Manager (Safety). The defendants closed the said disciplinary inquiry and informed the plaintiff vide letter dated 29.09.2003. Due to the said acts of defendants, the reputation of plaintiff and his family members had been lowered in the eyes of general public, his colleagues, seniors and attendants and has caused mental stress, agony, trauma to him.
13. It is further stated that the aforesaid acts of defendants were uncalled for, unwarranted and without any due proper cause of law and the plaintiff had no remedy except to approach this court to seek damages on account of malicious prosecution, mental sufferings, agony and trauma faced by the plaintiff as well as of reputation and and for financial loss on account of non release of benevolent fund to the tune of Rs. 5566/- recovered by NTPC from him during the period 1990 to 2003 which had to be refunded alongwith interest @ 18% per annum; on account of late submission of his Employees Pension Scheme - 95 (EPS-95) forms from 01.09.2001 to 31.08.2004, for which plaintiff was entitled to recover interest @ 18% p.a for the said period; on account of cost of turbans to Sikhs by defendant no.1 despite his several representations; on account of illegal recovery of Rs. 3505.50 in 2000 which defendant no. 1 had arbitrarily recovered (towards license fee/house rent/electricity and water charges) for a quarter which was never allotted and besides this, on account of Rs. 7654/- withheld towards HRA; on account of none payment of night shift/duty allowances of Rs. 1650/- which stands revised to Rs. 2090/-; on account of payment for providing suggestions in Employee Suggestion Scheme CS No. 12587/16 Manohar Singh vs. National Thermal Power Corporation Ltd. Page No. 6 of 24 and on account of non payment of residential telephone charges which mandatory as per rules.
14. It is further stated that the plaintiff sent a legal notice u/s 80 CPC through his counsel on 24.12.2004 to the defendants whereby calling upon them to pay damages for defaming and degrading his reputation to the tune of Rs.7 lacs; Rs. 2 lacs against mental agony and distress suffered by him by attending false enquiry proceedings; Rs. 25000/- towards non promotional losses; Rs. 14160/- towards loss of HRR and HRA; Rs. 11004 towards loss of residential telephone charges; Rs. 5566/- towards loss of benevolent fund; Rs. 1650/- towards loss of night duty charges; Rs. 960/- towards costs of turbans and interest @ 18% per annum plus legal expenses including overheads etc. of Rs. 20000/-. The defendants replied the said notice with false averments and submissions. Hence the present suit.
15. Upon being served with summons of the suit, defendants filed written statement thereby raising preliminary objection that suit for damages is not maintainable, there was no wrongful act on the part of defendants resulting into sufferings of plaintiff and plaintiff was thus not entitled to any damages. It has been further stated that the alleged cause of action emanating from closure of enquiry proceedings in the year 2003 did not, ipso facto, result in creating a cause of action for filing the present suit. It has been submitted that superannuation of plaintiff pending inquiry warranted closure of inquiry proceedings. It has been further stated that the suit of plaintiff for claiming damages was devoid of cause of action and was liable to be dismissed U/o 7 Rule 11 CPC, that the claim of damages under various heads was time barred. It has been further stated that defendant no. 2 had unnecessarily been impleaded as a party as defendant no. 2 was working as General Manager at BTPS, New Delhi and at the relevant time he was the disciplinary authority qua plaintiff and he had worked in BTPS with effect from 07.06.1999 upto 31.07.2003. It has been further stated that defendant no. 2 acted bonafide in official capacity under NTPC.
CS No. 12587/16 Manohar Singh vs. National Thermal Power Corporation Ltd. Page No. 7 of 24
16. On merits, it has been submitted that plaintiff was released from the services of corporation from 31.08.2003 on attaining the age of superannuation on the post of General Manager (Safety). It has been further submitted that defendant No.2 Sh. P. P. Singh who had been arrayed as the General Manager, BTPS and head of the safety department was the disciplinary authority qua plaintiff. It has been further submitted that plaintiff joined at Badarpur with effect from 25.09.1999 as Deputy Manager (Safety) on his transfer from Kawas. Holding of enquiry has not been denied but it has been denied that same was malafied and was to harass and torture the plaintiff. It has also been denied that any defamation of plaintiff took place or any mental and agony or any damages had been suffered by plaintiff. Claim of the plaintiff has been denied both on the ground of merits as well as on the ground of limitation. Rest of the contents of the plaint has been denied by the defendants.
17. Plaintiffs filed replications to the written statement filed by Defendants thereby denying the averrment of the written statements and reiterating the content of the claim.
18. On the pleadings of the parties, following issues were framed vide order dated 16.11.2005:
1. Whether the defendant No.2 has been unnecessary impleaded as defendant in the suit and the suit is bad for mis-joinder of the parties
2. Whether there is no cause of action to file the present suit in favour of the plaintiff and against the defendant?OPD
3. Whether there were malicious department proceedings/enquiry against the plaintiff? If so its effect.
4. Relief.
Vide. order dt 09.09.2011 an additional issue was framed to the following effect:-
Whether the suit of the plaintiff is time barred, and is liable to be CS No. 12587/16 Manohar Singh vs. National Thermal Power Corporation Ltd. Page No. 8 of 24 dismissed as such? OPD
19. In order to prove his case plaintiff examined himself as PW1 who filed his affidavit Ex. PW1/1 in examination-in-chief and relied upon following documents:-
1. Memorandum dt 23.11.2001 alog with statements of articles Ex PW1/A (colly)
2. Letters dt 5.01.20002, 22.01.2002 Ex PW1/B & C
3. Copy of Inter Office Memo dt 03.02.1989 Ex PW1/D
4. Copy of modified schedule of delegation of power in respect of disciplinary matters Ex PW1/E
5. Copy of letter of Corporate Vigilance Department dt 15.12.1998 Ex PW1/F
6. Copy of letter No. BTPS/MS-21308/2002-56 dt 15.06.2002 Ex PW1/G
7. Copy of Letter of Dy. Chief Inspector of Factories dt 11.08.2003 Ex PW1/H
8. Copy of Reply dt 19.09.2003 Ex PW1/I
9. Copy of representation dt 06.02.2003 Ex PW1/J
10. Copy of Letter dated 29.09.2003 Ex. PW1/K
11. Representation dated 22.07.2004 Ex. PW1/L
12. Copy of Rules of NTPC regarding Employees Voluntary Benevolent Fund Scheme Ex. PW1/M,
13. Copy of contributions made towards Benevolent fund by the deponent Ex.
PW1/N
14. Copy of rules of NTPC regarding Employees Suggestion Scheme Ex. PW1/O
15. Copy of Letter dated 04.07.2003 Ex. PW1/P
16. Copy of the representation dated 04.06.2003 and the copy of the rules pertaining to the Night Shift Allowance Ex. PW1/Q (colly.)
17. Copy of the covering letter of Employee Suggestion Scheme Ex. PW1/R
18. The letter pertaining to acceptance of Suggestions of the Deponent Ex.
CS No. 12587/16 Manohar Singh vs. National Thermal Power Corporation Ltd. Page No. 9 of 24 PW1/S
19. Copy of representation dated 24.06.2003 Ex. PW1/T, and
20. Copy of Legal Notice dated 24.12.2004 along with postal receipts and UPC Ex. PW1/U (colly.).
He was cross-examined by the defendants. After which, plaintiff closed his evidence.
20. Defendants have examined Sh. Narinder Kumar as DW1 who filed his affidavit Ex. DW1/A in examination-in-chief and relied upon following documents:-
1. A copy of NTPC (conduct, Discipline and Appeal) Rules applicable to the plaintiff Ex. DW1/1
2. Copy or order dated 4/12.02.2002 Ex. DW1/2
3. A copy of writ petition Ex. DW1/3
4. A copy of Order dated 19.03.2007 Ex. DW1/4
5. Details of subscription Ex. DW1/5
6. The circular no. 223/89 in respect of Benevolent Fund Scheme Ex.DW1/6 7. Complaint Ex. DW1/7
8. Letters dated 10.07.2000 and 22.07.2000 Ex. DW1/8 and Ex.
DW1/9.
He was cross-examined by the plaintiff. After which, defendants closed their evidence.
21. Plaintiff himself argued his case whereas defendants' case was argued by defendants' Counsel. Written arguments have also been filed. After taking into consideration oral and written arguments, pleading, evidence and material on record , issue wise findings are as under:-
ADDITIONAL ISSUE :- Whether the suit of the plaintiff is time barred, and is liable to be dismissed as such? OPD CS No. 12587/16 Manohar Singh vs. National Thermal Power Corporation Ltd. Page No. 10 of 24
22. This is taken up first of all issues as findings on this issue will have important bearing on the outcome of the suit. Plaintiff in para 21 of the plaint has claimed Rs 7,00,000/- as an damages for defaming and degrading the reputation of the plaintiff and a sum of Rs 2,00,000/- as an damages for mental agony and distress suffered by attending false inquiry. He had also claimed non promotional loss to the tune of Rs 25,000/-, HRR and HRA loss of Rs 14160/-, Residential Telephone Loss of Rs 1650/-, Cost of Turban Rs 960/-, interest on delayed submission of Employee Pension Scheme form from 1/09/2001 to 31/08/2004 @ 18% and legal expense including overheads etc. of Rs 20,000/-.
23. One by one heads of relief of damages/recovery is taken into consideration from the point of view of limitation.
24. Limitation for damages for defamation is one year. As per Article 75 and 76 of the Limitation Act, 1963, period of limitation for libel and slander is one year and limitation start from the time when libel is published or when the words are spoken or if the words spoken are not per se actionable then when the special damage complained of results. Admittedly imputation of defamation is alleged to the publication of charge sheet/memorandum dt 23.11.2001 on the notice board. So it is a case of libel and limitation starts when the libel was published. As per plaintiff, plaintiff vide his notice dt 8.12.2001 informed defendants that said was charge sheet was published deliberately. Meaning thereby that cause of action arose between 23.11.2001 and 8.12.2001 whereas present suit was filed on 04.06.2005 more than four years after the alleged accrual of cause of action. Plaintiff has not cited any law that during the pendency of the inquiry, plaintiff could not have approached the court for damages for defamation. Even if it is assumed that there was such bar then also plaintiff's suit on 04.06.2005 is barred for the reason that plaintiff was informed about the termination of inquiry vide letter dt 29.09.2003 Ex PW1/K which was admittedly received by plaintiff on 11.10.2003. Even if period of limitation is computed from 11.10.2003 suit for the plaintiff for damages for defamation CS No. 12587/16 Manohar Singh vs. National Thermal Power Corporation Ltd. Page No. 11 of 24 would be barred on 4.06.2005 having been filed after one year limitation period.
25. Next is the claim for damages of Rs 2,00,000/-for malicious prosecution. As per Article 74 of the Limitation Act, 1963 period within which suit for compensation for malicious prosecution could be filed is one year and the period of limitation start when the plaintiff is acquitted or the prosecution is otherwise terminated. In the present case admittedly prosecution/inquiry was dropped on superannuation of the plaintiff and he was communicated so vide letter dt 29.09.2003 Ex PW1/K which was admittedly received by plaintiff on 11.10.2003, therefore suit for damages for malicious prosecution should have been filed by plaintiff by 11.10.2004 and therefore, present suit having been filed on 04.06.2005 is time barred.
26. Next claim of the plaintiff is promotional loss of Rs 25,000/-. As per plaintiff, he was due for next promotion in the year 2002 but due to unwarranted acts of the defendant, the promotion of plaintiff for the post of Manager (Safety) was put under seal cover due to the false and malicious inquiry. If the claim of the plaintiff is based on contract the period of limitation began in 2002 itself when the promotion was denied. If the same is based on tortuous act of the defendant then also period of limitation began in the year 2002 itself. The period of limitation based on contract is three years and on torturous act same is one year. In the Limitation Act, 1963 under Article 113, three years period of limitation has been prescribed for any suit for which no period of limitation is prescribed in the Act and the period begins to commence on when right to sue accrues. Admittedly, right to sue for promotional loss accrued to the plaintiff when he was denied promotion in the year 2002 and therefore, present suit on 4.06.2005 is barred by limitation.
27. Next is the claim of HRR and HRA for Rs 14,160/-. As per plaintiff defendant No.1 in the year 2000 made the arbitrary recoveries of Rs 3,505.50/- (comprising of license fee/house rent, electricity and water charges) for the CS No. 12587/16 Manohar Singh vs. National Thermal Power Corporation Ltd. Page No. 12 of 24 quarter which was never allotted to the plaintiff, besides, house rent allowances payment of Rs 7,654/- was also with held by the defendants. Same Article 113 of the Limitation Act, 1963 applies here as the deduction were made in the year 2000 and therefore, present suit for recovery of those amount in the year 2005 is time barred.
28. Next is the claim of Residential Telephone charges. Plaintiff has not clarified for which period he was asking for payments. He had placed on record letter dt 24.062003 Ex PW1/T wherein there was reference that CMD while addressing 10th Safety Officers' Conference had directed the safety officers be provided with necessary facilities like telephone etc. There was also reference of a letter dt 29.04.2003 by which it was requested by plaintiff for approval be accorded for reimbursement of residential telephone charges to him. From this it appears that demand was due for period prior to 29.04.2003, but nothing has come on record for what period same was due. Defendant has denied the same to plaintiffs on merits. Since the onus is upon the defendant to prove issue of limitation and nothing has come on record indicating that period of recovery for telephone charges were of period beyond the limitation, hence suit of the plaintiff for this relief is within limitation.
29. So is the case with recovery of Rs 960/- for cost of Turban as nothing has come on record for which period same has been claimed. Defendant could brought nothing on record so as to highlight the period for which plaintiff had asked for the same. Since here the question is of limitation and defendant failed to bring anything on record that suit was bared. Hence for the relief of cost of turban suit of the plaintiff is not barred.
30. Next is claim of interest on delayed submission of Employee Pension Scheme form from 1/09/2003 to 31/08/2004 @ 18% and legal expense including overheads cost etc. of Rs 20,000/- appears to be within limitation period as they are apparently within three years of the institution of the present CS No. 12587/16 Manohar Singh vs. National Thermal Power Corporation Ltd. Page No. 13 of 24 suit and nothing has been brought on record by the defendant to infer same being barred by limitation.
31. In view of the aforesaid discussion suit of the plaintiff for the damages for defamation, for malicious inquiry, for recovery of promotional loss and for recovery of amount on account of HRR and HRA are barred by limitation. However, suit for plaintiff for the recovery of residential telephone charges, cost of turban, interest on delayed submission of Employee Pension Scheme Form and legal expenses are within limitation period.
Thus, the additional issue is decided accordingly.
ISSUE NO. 1: Whether the defendant No.2 has been unnecessary impleaded as defendant in the suit and the suit is bad for mis-joinder of the parties?
32. Onus to prove this issue has not been cast upon any of the parties. But from the way issue has been framed the onus appears to be on the defendants. Defendants in para 4 of preliminary objection have pleaded that suit of the plaintiff was bad for mis-joinder of defendant No.2. It has been contended that entire allegation against defendant No. 2 were of the act which he did in his official capacity and there was no allegation against him in his personal capacity nor any relief has been sought against him and therefore in these circumstances impleadment of defendant No.2 was not at all necessary and suit was bad for mis-joinder of defendant No.2.
33. On the contrary it has been argued on behalf of plaintiff that defendant No.2 and other senior officers of defendant No. l took offensive of the decision of the plaintiff to approach Consumer forum in respect his grievance qua footrest in the quarter alloted to him and defendant No.2 in connivance with other senior officials of the defendant No.1, with a view to harass and torture the deponent mentally as well physically and also to tarnish his fair image, carried out an administrative coup by usurping the powers of Disciplinary Authority with a view to impose major penalty on the plaintiff. Defendant No..2 intentionally CS No. 12587/16 Manohar Singh vs. National Thermal Power Corporation Ltd. Page No. 14 of 24 published said charge sheet dt 23.11.2001 and displayed it on the notice board. It has been contented that there was no provision for displaying such charge sheet on the notice board in terms of rule 34 of NTPC CDA. It has been further contended that charge sheet Ex PW1/A was served upon the plaintiff by the Welfare Officer same day and therefore there was no refusal as alleged nor was there any requirement for putting it up on notice board. But it was got done by defendant No.2 in violation of statutory provision as he and other senior officer had taken his complaint in the consumer forum as very offensive.
34. In the light of allegation and counter allegation, matter of the fact is that plaintiff has not alleged any personal enmity of defendant No.2 against plaintiff. Whatever act has been imputed to defendant No.2 are in his official capacity and was done on behalf of the defendant No.1. More over the departmental inquiry was initiated against the plaintiff for his alleged forgery in respect of rent receipts and for withdrawal of HRA in respect of a house which he had shown as permanent address and the said enquiry no way connected with his action in consumer forum. Therefore, in these circumstance presence of defendant No.2 in personal capacity is not necessary for proper adjudication of the present case, hence suit is bad for mis-joinder of defendant No.2.
In view of the discussion issue No.2 is decided against the plaintiff and in favour of defendant.
ISSUE NO. 2: Whether there is no cause of action to file the present suit in favour of the plaintiff and against the defendant?OPD ISSUE NO. 3: Whether there were malicious department proceedings/enquiry against the plaintiff? If so its effect.
35. Both issue are taken up together as they are interlinked and findings on issue no.3 would have a direct bearing upon the findings on issue No.2. Onus to prove issue No.2 is on defendants whereas onus to prove issue No.3 is upon the plaintiff. The background pleaded by the plaintiff for malicious prosecution CS No. 12587/16 Manohar Singh vs. National Thermal Power Corporation Ltd. Page No. 15 of 24 was the action of the plaintiff in approaching the consumer forum for his grievance with regard defective footrest in the quarter alloted to him. State Commission has awarded him Rs 10,000/- as compensation for the injury he suffered due to that defect. In the present case said issue is not an issue for adjudication but is only a starting point, as per plaintiff, for beginning of malicious prosecution by defendants.
36. Issuance of charge sheet/memorandum BTPS-04-21308-2001/262 dt 23.11.2001 Ex PW1/A is not in dispute and the charges mention therein is also not in dispute . It is also not in dispute that on superannuation of plaintiff, defendants closed the disciplinary inquiry and informed the plaintiff vide letter dt 29.09.2003 Ex PW1/K which was received by plaintiff on 11.10.2003. It is a matter of record that plaintiff during the pendency of the case sought to amend the present plaint so as to include the relief of declaration about the charge sheet/memorandum dt 23.11.2001 being null and void but said application of the plaintiff for amendment was dismissed vide order dt 26.04.2013.
37. The charge sheet/memorandum dt 23.11.2001 contains five charges against the plaintiff of having submitted false and fabricated rent receipt of the property which was shown by him as his permanent address in the official record. It was alleged that plaintiff had forged the signature of S.Gurudev Singh as property owner of WZ-M47/A; that he had shown the said as rented house in which he kept his family from 10.02.2000 till 31.05.2000 and had allegedly paid rent to one S.Gurudev Singh whereas said house been declared as his permanent residence/ leave address in Delhi in official record and in order to claim HRA he had submitted false information to the company for unlawful pecuniary gains; that submitting false and fabricated documents while claiming HRA was against the interest of the company; that such an act amounted to moral turpitude and that such act was subversive of discipline, good behavior and official decorum. Thus on the basis of aforesaid charge plaintiff was alleged to have committed misconduct under various provisions of NTPC CDA rules.
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38. Plaintiff has claimed those charges to be false and fabricated and have been leveled to malign the fair image and reputation of the plaintiff and has alleged that in order to achieve such purpose such charge sheet was published on the notice board thereby causing mental agony, humiliation and wrecking the reputation of the plaintiff in the eyes of general public as well as his colleagues, seniors and attendants.
39. In the entire plaint and his affidavit, plaintiff apart from saying the charges as false, did not specifically deny that he had shown the aforementioned house as his permanent address/ leave address in Delhi in official record or that he did not claim reimbursement of rent for keeping his family in the said house from 10.02.2000 till 31.05.2000 by showing the said house having taken on rent or that signature of S.Gurudev Singh appearing on the rent receipt and cash receipt for purchase of the car were different though S.Gurudev Singh appears to be the same person in both. Even in his written argument plaintiff did not deny these facts. Even during cross examination of defendant's witness these facts were not disputed rather same were sought to be justified, for example DW1 was asked that declaring permanent address did not amount to misconduct or claiming house rent/ lease money for a property declared as permanent house did not amount to misconduct.
40. Prima-facie these are sufficient reason for calling for an explanation from an employee. Moreover, in these circumstances mere explanation would not have dispelled the alleged misconduct without proper inquiry on the basis of evidence and such inquiry can be initiated at any stage before superannuation. There is nothing in the NTPC CDA rules which bars inquiry of an employee who is scheduled to retire in a year or two. Thus, in the event where the conducts alleged as misconduct/charge has not been denied specifically by plaintiff, initiation of inquiry on that basis cannot be said to be malicious or done to tarnish his unblemished image. It is altogether different CS No. 12587/16 Manohar Singh vs. National Thermal Power Corporation Ltd. Page No. 17 of 24 matter that plaintiff might have sufficient justification for his conduct in obtaining reimbursement of rent for the aforesaid period for keeping his family in the house which was shown by him as his permanent address/leave address in Delhi. It is added quickly here that this Court must not be understood here as if ruling on the justification or non-justification of the inquiry held against the plaintiff. An unjustified inquiry may not necessarily originate from malicious intent and vice-versa.
41. Next grievance of the plaintiff was that defendant No.2 was not authorized to issue charge sheet or that there was no procedure for publication of charge sheet on the notice board or that Welfare Officer should not be presenting officer etc are allegation related to procedure followed for conducting inquiry. Howsoever irregular procedure may have been followed but there is no denial that principle of natural of justice was followed i.e. rule of audi altrem partem was followed throughout. This court is not concerned with whether the rules of NTPC CDA were followed or not or whether the charges were illegal/false or not under NTPC CDA rules but is concerned with malicious intent which is lacking in evidence as plaintiff had focused on pointing out irregularities in following the procedure with which this court is not concerned. Mere irregularity ipso-facto does not mean malicious intent rather that would benefit plaintiff in getting it set aside if any finding returned by the said inquiry against plaintiff. In a way if is believed that defendant No.2 was deliberately not following procedure laid down in NTPC CDA rules or at his instance same were not being followed, it means that defendant No.2 was helping the plaintiff from being ultimately let off.
In view of the above discussion issue No.3 is decided against the plaintiff and in favour of defendant and since issue No.3 could not be proved by plaintiff therefore issue No.1 is also decided in favour of defendant and against the plaintiff.
42. Above all the issue did not take care of many questions which required to be answered in the present case. Accordingly, in order to answer CS No. 12587/16 Manohar Singh vs. National Thermal Power Corporation Ltd. Page No. 18 of 24 completely further findings are returned keeping in mind following question:-
Whether plaintiff is entitled to refund of Benevolent fund of Rs 5566/-, Interest @18% per annum on the delayed submission of Employee Pension Scheme Form from 1.09.2001 to 31.08.2004, cost of turban amounting to Rs 960/-, Night shift allowance amounting to Rs 1650/- Employee Suggestion Scheme, Residential Telephone charges?
43. Plaintiff has to prove his entitlement to aforesaid amounts/claims. It has already been held herein before that claim of the plaintiff qua damages for defamation, malicious inquiry and qua recovery of HRR and HRA is time barred therefore nothing is being discussed here so as to find plaintiff's entitlement in respect of those reliefs.
44. Plaintiff has claimed benevolent fund stating that an amount of Rs 5566/- was deducted from the deponent during the period 1990 to 2003 and according to the scheme, on cessation of membership, the sum as contributed was to be returned without interest but was not refunded to the plaintiff.
45. In reply it has been submitted by the defendant that under the scheme contributions collected from employees were utilised for making payment to family members upon the death of an employee. It has been further submitted that death rate in defendant Corporation was alarmingly high during the relevant period and on payment under scheme to the family members of the deceased employee, no amount was left for distribution to the employee on cessation of membership, therefore amount could not be refunded to plaintiff. Neither plaintiff has a right or lien on the amount contributed under the scheme nor contribution was an investment. The deduction under the scheme were continued from 02.08.2002 to February 2003 to clear 18 pending cases. As per the decision of the Managing Committee constituted for benevolent fund scheme, the deductions were stopped under the scheme with effect from March 2003. The position was intimated to all unions of BTPS, thus plaintiff not entitled to the alleged amount.
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46. DW1 apart from what was stated in the written statement further deposed that plaintiff had contributed only a sum of Rs 2975/- and placed on record a hand written extract of statement of contribution made by plaintiff Ex DW1/5 and the Circular No. 223/89 in respect of Benevolent Fund Scheme as Ex DW1/6 . In cross examination he admitted that plaintiff was covered under benevolent scheme and contribution were recovered from his salary. No suggestion was given to him that sum of Rs 5566/- was deducted and not Rs 2975/-. No suggestion was given that statement of contribution Ex DW1/5 was in correct or not complete.
47. In written statement defendant has not stated that sum of Rs 5566/- was not deducted but Rs 2975 was deducted. Defendant for the first time in evidence came out with the figure denying what was stated by the plaintiff. On perusal of the corresponding para of written statement there do not appear to be any denial about the amount contributed and plea was taken that amount could not be refunded as 18 pending cases were being paid off and there remained nothing as balance to be refunded to the member and decision to this effect was communicated to unions of BTPS. But nothing has been placed on record by the defendant to suggest that such scheme was closed and communication was made to Unions about no money left with corpus with the payment of pending 18 cases. Thus defendant failed to prove that defendant was not liable to make the said payment on cessation of membership. Therefore, plaintiff is entitled to claim the said amount of benevolent fund of Rs 5566/- with interest. Plaintiff has not led any evidence as to what rate of interest he is entitled to. Section 34 of CPC permits grant of simple interest @ 6% per annum. Accordingly, plaintiff is held entitled for simple interest on the aforesaid amount @ 6% per annum from the date of institution of the suit till realiasation.
48. As far as cost of turban is concerned, plaintiff has alleged that defendant No.1 used to issue turbans considering it as head protective gear under CS No. 12587/16 Manohar Singh vs. National Thermal Power Corporation Ltd. Page No. 20 of 24 rule 129 of Motor Vehicle Rules to Sikh employees. Plaintiff did not place on record anything on record to suggest that defendant No.1 ever issued turban to any Sikh employee including him. Nor did he place on records any such rule implemented by defendant No.1 whereby turbans were provided. In the absence of any evidence in this regard plaintiff's claim for the cost of turban cannot be accepted and is hereby rejected.
49. Next is the claim of interest on the delayed submission of Employee Pension Scheme Form by defendant from 01.09.2001 to 31.08.2004. Plaintiff as PW1 deposed that defendant No.2 intentionally delayed the submission of Employee Pension Scheme Forms from 01.09.2001 to 31.08.2004 for which plaintiff is entitled to recover interest @ 18% p.a. for the said period. There is no cross examination on this point by the defendant.
50. DW1 deposed that Employee Pension Scheme was administered by NTPC Employee Voluntary Superannuation Trust which was a separate entity, the claim if any was enforceable against the Trust alone. No claim/relief was maintainable against defendant corporation and Trust was not a party in the suit. In cross examination he deposed that it was the HR department who forwarded the papers of Employee Pension Scheme to Provident Fund Office. He did not know the exact date when pension claim forms of the plaintiff were sent to the RPFC. He could not say if the pension claim form of the plaintiff was sent to RPFC on 7.10.2004. He denied the suggestion that delay of three years in submitting the claim form of the plaintiff was intentional and at the instance of defendant No.2. He volunteered that there was no delay or that mistake in calculation was done on the instruction of defendant No.2 for causing harassment and torture to the plaintiff. He volunteered that calculation of pension was done by RPFC and not by defendant-company and there was no clerical mistake on the part of the defendant. He admitted that defendant had forwarded the pension papers in prescribed form to the RPFC relating to plaintiff. No suggestion was given that plaintiff suffered loss due delayed submission of form.
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51. Nothing has come on record as to by what time/period forms was required to be submitted. Similarly nothing has come on record that plaintiff suffered loss due to delayed submission of form or that he suffered a particular amount as loss. Plaintiff only stated that pension starts on the next date of retirement but did not depose as to when his pension began to be credited. Plaintiff has claimed that defendant No.2 intentionally delayed the submission of forms from 1.09.2001 to 31.08.2004. Admittedly in 2001 pension was not to begin. No calculation has been provided by plaintiff as to on amount interest was payable @ 18% p.a. Nothing has been brought on record as to on what basis said rate of interest has been claimed. Thus, in the absence of necessary particulars as well as in the absence of prove that delayed submission form caused any loss to plaintiff, plaintiff cannot be held entitled to interest on such delayed submission of pension forms.
52. As far as claim of Night-Shift/Duty Allowances is concerned, plaintiff claimed that he had performed the night duties for security surveillance but the defendant No.1 with its malafide intention did not release the payment of Rs 1650/- which stood revised to Rs 2,090/- consequent upon redressal of service grievance vis-a-vis Revised LPC. Defendants did not pay the night-shift allowance despite plaintiff's representation dt 04.06.4003 and despite rules pertaining to the Night Shift Allowance Ex PW1/Q (Colly).
53. In reply it was pleaded by defendant that night duty allowance was not permissible under rules of defendant Corporation. To compensate for night duty, the employees under E-1 to E-5 category were given rest on the next day. Thus, no allowance was payable.
54. Plaintiff has not explained as to how many nights he worked in night shift. The defendant has not placed on record any rules whereby in return for night shift duty rest were provided to the employees under E1 to E5 on the CS No. 12587/16 Manohar Singh vs. National Thermal Power Corporation Ltd. Page No. 22 of 24 next date whereas plaintiff had placed on record part of the such rule whereby employees under E5 and E6 were given night duty monthly allowance of Rs. 1500/-. Plaintiff in his evidence had explained that defendant had not released the payment of Rs. 1,650/- for night duty and which amounts stood revised to Rs. 2090/- consequent upon redressal of service grievance vis-a-vis revised LPC. Plaintiff was not cross examined on this point by the defendant. DW-1 in his examination-in-chief did not utter a single word which regard to night-shift allowance and made a blanket statement that other three claims were neither admissible nor enforceable as corporation had no such rules. No cross question was asked with respect to night duty shift allowance.
55. The evidence led in this regard is insufficient as plaintiff did not a utter for how many days or month he performed the night-shift and for which period he did so. Since, the onus was upon the plaintiff to prove that he was entitled for night-shift duty allowance but plaintiff has not been able to prove the time and period for which he performed night duty, therefore, he cannot be held entitled for night duty shift allowance.
56. With regard to claim of the plaintiff about the Employee Suggestion Scheme it has been pleaded by the plaintiff that there was a scheme under which if suggestions given by employee for the improvisation and betterment of working environment of defendant no. 1 was accepted by the Corporation then the employee was entitled to payment of lump sum amount fixed by the defendants. Plaintiff deposed that his suggestion was accepted by the defendant but defendant did not make the payment under the said scheme and he relied upon his representation as well his suggestion which was accepted Ex. PW-1/R and PW-1/S respectively. In Ex. PW -1/S, there is a reference that his suggestion was accepted but the amount was not mentioned. No cross examination was conducted by the defendant on this point. Similarly, when DW-1 appeared in the witness box he was not confronted with Ex. PW-1/S nor he was asked to clarify as to how much amount was payable under the said scheme. Since, the plaintiff CS No. 12587/16 Manohar Singh vs. National Thermal Power Corporation Ltd. Page No. 23 of 24 failed to even aver as to how much amount he was entitled to thereunder nor he could put the said letter to DW-1 so as to establish the authenticity and veracity of the contents thereof, in these circumstances, plaintiff failed to prove his entitlement to any amount under the suggestions scheme.
57. Plaintiff's claim qua the residential telephone charges is also incomplete and the plaintiff failed to place on record any rule and regulation whereby showing his entitlement to the residential telephone charges. Plaintiff has not placed any material/evidence on record which could prove his entitlement. Simply, by writing letter Ex. PW-1/T does not prove his entitlement. Hence, the plaintiff's claim for residential telephone charges is also hereby rejected.
RELIEF In view of the findings recorded on all issue suit of the plaintiff is dismissed with respect to relief for damages on account of defamation, malicious prostitution, recovery of arrears of HRA-HRR and promotional loss being time barred and suit is also dismissed on merits with respect to relief for recovery of cost of turbans, award under employees suggestion scheme, interest on delayed submission of forms under Employee Pension Scheme and night-shift/duty allowance.
However, plaintiff is held entitled to the benevolent fund of Rs. 5,566/- with interest @ 6 % from the date of institution till realisation and accordingly a decree of recovery of Rs 5566/-( Five Thousand Five Hundred and Sixty Six Rupees Only) with simple interest @ 6% per annum till realisation is hereby passed in favour of plaintiff and against the defendant No.1.
Parties to bear cost.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
(Harish Kumar)
Announced in the open Court ADJ-13(Central) / THC
(Judgment contains 24 pages) Delhi / 17.09.2016
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