Delhi District Court
S.L. Gupta vs Central Bureau Of Investigation (Cbi) on 8 January, 2020
IN THE COURT OF SH HARGURVARINDER SINGH JAGGI,
ADDL. DISTRICT JUDGE - 02, SOUTH WEST DISTRICT,
DWARKA COURTS, DELHI
CS DJ ADJ No. 16663/2016
CNR No. DLSW0100035
IN THE MATTER OF:
S.L. Gupta
S/o late H.R. Gupta
R/o C-302, DJA Apartments, Plot No.1A,
Sector-13, Dwarka, New Delhi-110078 ... Plaintiff
v.
1. Central Bureau of Investigation (CBI)
5-B, New CBI Building
CGO Complex, New Delhi-110003
Through its Director
2. Department of Personnel & Training
North Block, New Delhi-110001
Through its Secretary's
3. Ashok Kumar, Addl. DGP
Tamilnadu Police
R/o A-1/16, SAF Games Village,
Koyambedu, Chennai-600006 ... Defendants
Date of institution of suit: 05.02.2013
Date of judgment reserved: 22.10.2019
Date of pronouncement of judgment: 08.01.2020
CS DJ ADJ No. 16663/2016
Page No. 1/60
JUDGMENT
1. The plaintiff, namely, S.L. Gupta (hereinafter "plaintiff") has preferred a suit for recovery of damages to the tune of ₹20,00,000/- (Rupees Twenty lakhs only) along with interest @18%p.a. from the date of the filing of the suit until its actual realization against the defendants, namely, Central Bureau of Investigation - CBI (defendant No. 1), Department of Personnel & Training (defendant No. 2) and Ashok Kumar, Addl. DGP, Tamil Nadu Police (defendant No. 3). Facts
2. The facts of the case deciphered from the plaint in a nutshell are that the plaintiff was working with the defendant No. 1, a premier national investigating agency, who is under the administrative control of defendant No. 2 and the defendant No. 3 was the superior officer of the plaintiff. The defendant No. 3 targeted the plaintiff and initiated a false note against the plaintiff and recommended for initiation of departmental proceedings against the plaintiff with ulterior motives. A show cause memo dated 04.09.1995 was issued to the plaintiff and the plaintiff called upon for an explanation, as to why disciplinary proceedings be not initiated against him for conducting a perfunctory investigation in the year 1985-86. In the year 1996, departmental proceedings were initiated against the plaintiff by the defendant No.1 and defendant No.2. After a prolonged departmental proceedings, a penalty of censure was imposed upon the plaintiff on 10.06.2009, CS DJ ADJ No. 16663/2016 Page No. 2/60 which resulted in stagnation of plaintiff as DSP for more than 19 years from October 1990 to January 2010 on account of which the plaintiff suffered social and official stigma including inferiority complex, hardship, financial and mental agony. The plaintiff' requests to expedite the inquiry were not heard and his promotion was withheld on account of arbitrariness. The image and reputation of the plaintiff was also lowered in the eyes of his relatives, family members, friends, colleagues, neighbors, etc., on account of non-promotion, even though the same was due. The plaintiff assailed the alleged misconduct, departmental proceedings and order dated 10.06.2009 before the Hon'ble Central Administrative Tribunal, Principal Bench, Delhi (hereinafter "Hon'ble CAT"). The Hon'ble CAT by order dated 05.02.2010 quashed not only the charge memo but also the departmental proceedings and the order dated 10.06.2009 by which the penalty of censure was imposed upon the plaintiff. The Hon'ble CAT also awarded cost of ₹20,000/- (Rupees Twenty thousand only) to the plaintiff recoverable from the defendant Nos.1 and 2. The Hon'ble CAT by its order dated 05.02.2010 directed the defendant Nos. 1 and 2 to consider the plaintiff for promotion for all posts on which his juniors may have been promoted from the date they were promoted, and would be fixed in proper pay scales accordingly, which would be notional, but the pay and evidence of the applicant shall be worked out as mentioned above and the plaintiff would be paid post-retirement dues accordingly. The defendant Nos. 1 and 2 did not challenge the Hon'ble CAT's order dated 05.02.2010, however they took two years CS DJ ADJ No. 16663/2016 Page No. 3/60 to comply with the said order. The plaintiff had to once again prefer an application before the Hon'ble CAT against which an order dated 17.01.2012 was passed in favour of the plaintiff. In compliance of order dated 05.02.2010, the defendant gave notional promotion to the plaintiff herein to the post of Addl. Superintendent of Police (ASP) with effect from 31.05.2010 through CBI Head Office order No. 1297 dated 16.07.2010. The plaintiff has averred in the plaint that with the plaintiff being embroiled in a false departmental inquiry and deprived of his entitled due promotions, the defendants made themselves liable for damages and compensation to be paid by them to the plaintiff. The defendants intentionally deprived the plaintiff from his bona fide promotions to the rank of Addl.SP, Superintendent of Police (SP) and Senior Superintendent of Police (SSP), which is defamatory in nature and resulted in maligning the image and reputation of the plaintiff. The plaintiff suffered great harassment and mental tension from the year 1992 to 2010 continuously. The plaintiff has urged in the plaint that though, no amount of money would compensate the mental agony of the plaintiff and compensate the lowering of image and reputation of the plaintiff in the eyes of the family members, friends, relatives, neighbors and colleagues etc., however the plaintiff seeks damages of ₹20,00,000/- (Rupees Twenty lakhs only) from the defendants.
3. The plaintiff has averred in the plaint that the defendant Nos. 1 and 2 admitted their fault, as found by the Hon'ble CAT in its order dated 05.02.2010 and the defendant's paid the cost of ₹20,000/- (Rupees Twenty thousand only) to the plaintiff herein without CS DJ ADJ No. 16663/2016 Page No. 4/60 challenging the order passed by the Hon'ble CAT. The plaintiff has averred in the plaint that during the period 2001 to 2008 the plaintiff was working as Deputy Superintendent of Police, Spl. Crime Branch- III of CBI, New Delhi where his juniors, namely, Vijay Kumar and Ran Singh Dhanker were working as his seniors and bosses. It is further averred by the plaintiff that during 2009 until his superannuation on 31.01.2010, the plaintiff was posted in Special Crime Branch-I, where the plaintiff had to work under the SP. It is averred in the plaint that Vijay Kumar was junior to the plaintiff by two years, whereas Ran Singh Dhanker by a year and Surinder Paul was junior to the plaintiff by four years. The grouse of the plaintiff is that though his name appeared at serial No. 3 in the senior seniority list, however the officers whose name appeared at serial No. 4, 16 and 17 respectively became his superiors for no fault of his own. The plaintiff has averred in the plaint that the defendant Nos. 1 and 2 intentionally delayed the departmental inquiry for 13 years and by the alleged misconduct deprived the plaintiff from enjoying the fruits and happiness of promotion(s) in regular course. By such arbitrary and illegal conduct on part of the defendants of having derailed the promotion of the plaintiff, they not only defamed the plaintiff but also spoiled his reputation in the entire department, as well as in the society from 1996 onward. Thus, in this manner the plaintiff worked under his subordinates from 2001 until his retirement and by which he was subjected to great humiliation and continuous mental torture for about 9 years. It is also averred by the plaintiff that his juniors were writing CS DJ ADJ No. 16663/2016 Page No. 5/60 his annual confidential reports, which not only agonized the plaintiff but also humiliated him.
4. The plaintiff has averred in the plaint that notices under Section 80 CPC were personally served upon the defendant Nos. 1 & 2 on 30.07.2012, whereas the notice was sent to defendant No. 3 by post. It is averred in the plaint that no reply to the aforesaid notices was received from the defendant Nos. 1 and 2. The defendant No. 3 sent a false and frivolous reply dated 28.08.2012 to the plaintiff's notice.
5. The plaintiff has averred in the plaint that the cause of action to prefer the present suit arose on 05.02.2010, when the Hon'ble CAT passed the order considering the entire case of the plaintiff and observed that the plaintiff is entitled for compensation, as the plaintiff has suffered irreparable damage on account of the defendant No.1's charge sheet dated 27.06.1996 and defendant No. 2's order dated 10.06.2009. The cause of action to prefer the present suit is continuous and subsisting, as no compensation has been paid by the defendants to the plaintiff.
6. The plaintiff has averred in the plaint that the plaintiff resides in Delhi within the jurisdiction of this Court, where part of cause of action arose. It is also averred by the plaintiff in the plaint that the office of defendant Nos. 1 and 2 are situated in Delhi and thus this Court has jurisdiction to decide and adjudicate the suit instituted by the plaintiff. The plaintiff has affixed the ad valorem court fees of ₹54,000/- (Rupees Fifty four thousand only) on the plaint, as per the valuation of ₹20,00,000/- (Rupees Twenty lakhs only). Hence, the CS DJ ADJ No. 16663/2016 Page No. 6/60 present suit for damages.
7. The defendant Nos. 1 and 2 filed a joint written statement and have taken preliminary objections that there is no cause of action in favor of the plaintiff to prefer and maintain the present suit against the defendants. The suit preferred by the plaintiff is barred by law of limitation and the same is bound to be dismissed. The suit preferred by the plaintiff is bad for non-joinder and misjoinder of necessary parties. The plaintiff has not approached the Court with clean hands, as he has only reproduced selective paragraphs of the order dated 05.02.2010 passed by the Hon'ble CAT. As the plaintiff had been adequately compensated, as per the order dated 05.02.2010, the present suit for compensation to the tune of ₹20,00,000/- (Rupees Twenty lakhs only) has been filed without any basis and the same is liable to be dismissed. The suit against the defendant is not maintainable, as the plaintiff had been satisfied with the order dated 05.02.2010 passed by the Hon'ble CAT, else he would not have accepted reemployment for another 2 (two) years with the defendant No. 1 post his superannuation. The present suit has been filed to extract money from the defendants and the same is liable to be dismissed.
8. The defendant Nos. 1 and 2 in their written statement have urged the facts that the plaintiff had joined the defendant No. 1, as a Sub-Inspector in the year 1972. It is averred by the defendant Nos. 1 and 2 that the plaintiff was promoted to the rank of an Inspector in the month of June 1977 and thereafter in October 1990, as Deputy Superintendent of Police; Additional Superintendent of Police on CS DJ ADJ No. 16663/2016 Page No. 7/60 31.05.2001 and Senior Superintendent of Police on 31.12.2004. The plaintiff retired from the services of defendant No. 1 on attaining the age of superannuation on 31.01.2010 and thereafter the plaintiff was engaged as a consultant on reemployment basis for a period of 2 (two) years beyond the date of his retirement.
9. The defendant Nos. 1 and 2 have averred in their written statement that in the year 1985-1986, the plaintiff was posted as Inspector, CBI (EOW), New Delhi and was entrusted with the investigation of a case - RC-8/85-DLI. On completion of investigation of the said case, a closure report was filed in the month of February 1990, before the Court of Ld. Chief Metropolitan Magistrate, Tis Hazari Courts, Delhi (hereinafter "Ld. CMM"). The closure report was not accepted by the Ld. CMM and the order for further investigation were passed. During further investigation it was revealed that had the plaintiff taken sincere interest in the investigation of the case, the offence could have been detected years ago and unpleasant remarks passed by the Ld. CMM could have been avoided. It is averred by the defendant Nos. 1 and 2 in their written statement that the case RC- 8/85-DLI ended in conviction of the accused persons on 20.07.2012. It is averred in the written statement that the three accused persons, namely, Ashok Kumar Gupta, Ashok Kumar Aggarwal and U.S. Kapoor pleaded guilty before the Court and by judgment dated 20.07.2012, the Ld. ACMM, Saket convicted the aforesaid three accused persons and sentenced them with imprisonment till the rising of the Court along with a direction to deposit a sum of ₹1,27,804/-
CS DJ ADJ No. 16663/2016 Page No. 8/60(Rupees One lakh twenty seven thousand eight hundred and four only), as compensation to Chief Controller of Imports and Exports. A fine of ₹15,000/- (Rupees Fifteen thousand only), ₹10,000/- (Rupees Ten thousand only) and ₹5,000/- (Rupees Five thousand only), respectively was imposed on the said accused persons. One of the accused persons, namely, V.N. Aggarwal died during the pendency of the aforesaid case.
10. A memorandum dated 04.09.1995 was issued by defendant No. 3 to the plaintiff, who was his supervisory officer at that point in time and sought an explanation from the plaintiff for a perfunctory investigation conducted by him. The deficiencies in the investigation were duly mentioned in the memorandum dated 04.09.1995.
11. The defendant Nos. 1 and 2 have averred in the written statement that after due consideration of the explanation tendered by the plaintiff to the aforesaid memo, a charge memorandum dated 27.06.1996 for initiation of the disciplinary proceedings for major penalty under Rule 14 of Central Civil Service (Classification, Control and Appeal) Rules, 1965 was issued to the plaintiff. The plaintiff was further asked to submit his written statement of defence on the aforesaid charge memo within 15 days of its receipt.
12. The defendant Nos. 1 and 2 have averred in the written statement at the crux of the charges in the charge memorandum dated 27.06.1996 were that the plaintiff failed to maintain absolute integrity and devotion to duty and exhibited a conduct unbecoming of a police officer, so much so that while conducting an investigation of the case, CS DJ ADJ No. 16663/2016 Page No. 9/60 the plaintiff did not send the specimen writing of the accused persons along with the question documents to GEQD for expert opinion and made self-observations favoring the accused persons and rerecorded the statement of two prosecution witnesses, namely, P.K. Garg and Abdul Qayum Ansari to annul their evidentiary value and falsely recommended a closure of the case without making sincere efforts to get the accused identified with the help of the photographs available with him and also ignored the statements of the postman, which was giving clue about the accused. It is averred by the defendants in their written statement that the learned that Ld. CMM did not accept the closure report because the investigation conducted by the plaintiff was incomplete, motivated and there were many missing links and thus ordered further investigation of the case.
13. On 11.07.1996, the plaintiff submitted his written statement of defence to the charge memorandum and denied the charges. Thereafter the matter was referred to Central Vigilance Committee (CVC) vide CBI letter No. 3/66/90-AD.V dated 04.09.1996 for their advice. It is averred by the defendant Nos. 1 and 2 in their written statement that CVC by OM No. A HMA.13 dated 13.01.1997 endorsed the CBI's action in having initiated major penalty proceedings against the plaintiff. The CVC nominated Mr. O.P. Mishra, as inquiry officer to conduct oral inquiry against the plaintiff and if it became necessary, the name of Mr. Harikesh, Inspector CBI, ACU.IV, New Delhi to act as Presenting Officer was suggested.
14. In the meantime, the post of Deputy Superintendent of Police in CS DJ ADJ No. 16663/2016 Page No. 10/60 defendant No. 1 was reclassified from Group-B to Group-A in terms of notification dated 31.01.1997. Since the competent authority in respect of Group-A officer was defendant No. 2, the matter was accordingly referred to defendant No. 2 on 05.03.1997 for approval of the competent authority for appointment of Mr. O.P. Mishra. CDI/CVC as Inquiry Officer and Mr. Hrikesh, Inspector, CBI, ACU.IV, New Delhi as presenting officer.
15. The defendant No. 2 by order dated 09.06.1998 appointed Mr. O.P. Mishra. CDI/CVC, as inquiry officer and Mr. Hrikesh, Inspector, CBI, as presenting officer, respectively. The Commissioner for Departmental Inquiries, CPC, New Delhi conducted the preliminary inquiry against the plaintiff on 23.09.1998. It is averred in the written statement that the inquiry officer in the disciplinary proceedings were changed six times for the reason beyond the control of the defendants and thus the inquiry was finally concluded by the 6 th inquiry officer, namely, Mr. Satish Mohan Lal, who was appointed on 26.07.2002. The inquiry officer submitted his inquiry report on 17.02.2004 and held the charges against the plaintiff herein as partly proved. Thereafter, the defendant No. 2 referred the case record of the inquiry to the CVC for its second stage advice. The CVC by memorandum dated 25.05.2004 advised to impose a suitable major penalty on the charged officer i.e. plaintiff herein.
16. A copy of the inquiry report dated 17.02.2004 along with the statement of disagreement of the Disciplinary Authority on the findings of the inquiry officer were made available to the plaintiff on CS DJ ADJ No. 16663/2016 Page No. 11/60 14.06.2004 to enable him to make a representation within 15 days from its receipt. The plaintiff submitted his representation dated 30.07.2004 to the report of the inquiry officer and statement of disagreement. The same was considered by the disciplinary authority and keeping in view the extenuating factors and circumstances of the case, it was tentatively decided to impose one of the minor penalties on the plaintiff herein. It is averred in the written statement that before imposition of the penalty, the disciplinary authority referred the case record of the inquiry to Union Public Service Commission (UPSC) on 23.04.2008 for their statutory advice. UPSC in its report advised for imposition of minor penalty on the plaintiff.
17. The defendant Nos. 1 and 2 have averred in their written statement that after having considered all aspects relevant to the case and also the advice of UPSC, the penalty of censure was imposed on the plaintiff herein and the same was conveyed by order dated 10.06.2009. It is also averred by the defendant Nos. 1 and 2 in the written statement that the plaintiff herein challenged the order dated 10.00.2009 before the Hon'ble CAT by OA No. 2328/2009. It is averred in the written statement that the Hon'ble CAT by order dated 05.02.2010 set aside the charge memorandum initiating the departmental proceedings and all proceedings taken in the matter and also the order dated 10.06.2009 inflicting the punishment of censure upon the plaintiff. It is also averred by the defendant in the written statement that the Hon'ble CAT further ordered that in consequence of setting aside of the memorandum, proceedings and the penalty order, CS DJ ADJ No. 16663/2016 Page No. 12/60 the plaintiff would be considered for promotion for all posts on which his juniors may have been promoted from the date of their promotion and would be fixed in proper pay scales accordingly, which would be notional, but the pay an emoluments of the plaintiff shall be worked out in the manner above and the plaintiff would be paid post retiral dues, accordingly.
18. The defendants have urged in the written statement that in compliance of order dated 05.02.2010, the plaintiff was promoted notionally to the post of Additional Supdt. of Police w.e.f. 31.05.2001 and also to the post of Superintendent of Police w.e.f. 31.12.2004 from the date of promotion of his immediate junior and his pay was fixed accordingly for the purposes of post to retiral dues.
19. The defendant Nos. 1 and 2 in their written statement, particularly, under the heading reply on merits denied the allegations that the defendant Nos. 1 and 2 deliberately picked up and targeted the plaintiff on the basis of a false note and recommendation for the initiation of the disciplinary proceedings with any ulterior motive for initiation of departmental proceedings against the plaintiff. It is urged by the defendants in the written statement that the memorandum was issued to the plaintiff only after adverse remarks were received by the defendant No. 1 from the Ld. CMM with regard to the closure report filed by the plaintiff. It is also urged by the defendant Nos. 1 and 2 in the written statement that the adverse remarks against the plaintiff were very serious in nature and warranted review of the case investigated by the plaintiff, as the Hon'ble Court had ordered further CS DJ ADJ No. 16663/2016 Page No. 13/60 investigation of the case. It is also urged by the defendant Nos. 1 and 2 in the written statement that the deficiencies mentioned in the memorandum dated 04.09.1995 were the deficiencies pointed out by the Ld. CMM after perusal of the case record at the time of hearing of the closure report. It is urged by the defendants in the written statement that the deficiencies pointed out were very serious in nature and reflected perfunctory investigation of an important case by the plaintiff and it was in that light the memorandum was issued to the plaintiff calling for his explanation, as to why disciplinary action should not be initiated against him for such a perfunctory investigation which as per him led to the closure of the case. The defendants in their written statement have once again urged that the very case in which the plaintiff had suggested filing of closure report, resulted in conviction of the accused persons by judgment dated 20.07.2012.
20. The defendant Nos. 1 and 2 in the written statement has also denied that the delay in completion of the deposit disciplinary inquiry can be attributed to the defendant Nos. 1 and 2 merely for the reason as six inquiry officers were changed in the disciplinary proceedings.
21. The defendant Nos. 1 and 2 in the written statement have denied admission of their fault, as mentioned in order dated 05.02.2010 passed by the Hon'ble CAT. With regard to the contention of the plaintiff for non-implementation of the orders passed by the Hon'ble CAT, the defendant Nos. 1 and 2 have averred in the written statement that in holding the review the DPC for the plaintiff's promotion to the rank of Senior Superintendent of Police the matter is sub judice before CS DJ ADJ No. 16663/2016 Page No. 14/60 the Hon'ble Supreme Court of India in a special leave petition (SLP) filed vide diary number 4631/2013 dated 08.02.2013. The defendants have denied for delaying the departmental inquiry for 13 years and also the deprivation of promotions, as alleged by the plaintiff in his plaint.
22. The written statement of the defendant No. 3 is on the same tangent as that of the defendant Nos. 1 and 2. The defendant No. 3 has strongly averred in his written statement that the plaintiff has not approached this Court with clean hands, as he sought reemployment with the defendant No. 1 post his superannuation and thereafter chose to file the present suit at his sweet will towards the fag end of his reemployment. The defendant No. 3 has also urged that the plaintiff has made false averments in the plaint that he did not receive any compensation from the plaintiff, whereas the plaintiff very well received and accepted an amount of ₹20,000/- (Rupees Twenty thousand only) as compensation pursuant to Hon'ble CAT's order. The defendant No. 3 has averred in his written statement that the demand of ₹20,00,000/- (Rupees Twenty lakhs only) by the plaintiff as compensation, damages smacks of ulterior motive and mala fide intention.
23. The plaintiff filed replication to the respective written statement of the defendants. The plaintiff reiterated his stance urged in the plaint and denied the objections casted by the defendants in their written statement. The plaintiff urged that he has a good case on merits and he must prevail against the irreparable loss and harm caused to him by CS DJ ADJ No. 16663/2016 Page No. 15/60 the defendants.
Questions
24. On completion of the pleadings, the following issues were framed vide order dated 04.04.2016:
(a) Whether the plaintiff is entitled to a recovery of damages consequent to defendant's action, if yes, to what amount? ... OPP
(b) Whether the plaintiff is entitled to any pendente lite and future interest, if any, at what rate?
(c) Relief.
25. To prove his case, the plaintiff stepped into the witness box on 02.05.2016 and tendered his evidence by way of affidavit (Ex.PW1/A). The plaintiff tendered the following documents in evidence:
S.No. Documents Particulars of Documents
Marked as
(i) Ex.PW1/1 Photocopy of closure report in RC 8/E/85-
DLI
(ii) Ex.PW1/2 Photocopy of secret note dated 21.01.1995
(iii) Ex.PW1/3 Photocopy of memorandum dated
04.09.1995
(iv) Ex.PW1/4 Photocopy of order dated 05.02.2010
passed in O.A. No. 2328/2009
(v) Ex.PW1/5 Photocopy of CBO HO Order dated
16.07.2010
CS DJ ADJ No. 16663/2016
Page No. 16/60
(vi) Ex.PW1/6 Photocopy of CBO HO Order dated
22.03.2011
(vii) Ex.PW1/8 Photocopy of order dated 10/11-6.2009
(viii) Ex.PW1/9 Photocopy of Seniority List of
Departmental Supdt. of Police dated
28.03.2011
(ix) Ex.PW1/10 Photocopy of reply dated 28.08.2012
26. The plaintiff also examined C.L. Gupta (PW2) and Prakash Chand (PW3) as plaintiff' witnesses.
27. Whereas, the defendant No.1, through Mr. D.P. Singh (DW1) tendered the following documents in its defence:
S.No. Documents Particulars of Documents
Marked as
(i) Ex.DW1/2 Order dated 13.07.1992 passed by the
Court of Ld. CMM, Delhi (The same
was de-exhibited for the objection of
mode of proof)
(ii) Ex.DW1/3 Order dated 20.07.2012 passed by the
Court of Ld. CMM (the same was de-
exhibited and marked as Mark 'A')
(iii) Ex.DW1/4 Memorandum dated 04.09.1995 (the
same was de-exhibited as it was
already marked as Ex.PW1/3)
(iv) Ex.DW1/5(OSR) Charge memorandum dated
27.06.1996
(v) Ex.DW1/6(OSR) Inquiry report dated 17.02.2004 (62
CS DJ ADJ No. 16663/2016
Page No. 17/60
pages in total)
(vi) Ex.DW1/7 Order by DOPT dated 10.06.2009 (the
same was de-exhibited as it was
already marked as Ex.PW1/8)
(vii) Ex.DW1/8 Order by DOPT dated 10.06.2009 (the
same was de-exhibited as it had been
wrongly marked and was a repetition
of a document)
(viii) Ex.DW1/9(Colly.) Departmental proceedings involving
different agencies and branches of the
defendants against the plaintiff from
issuing the memo upto imposition of
penalty (1-36 documents)
Submissions by the plaintiff and the learned Counsels for the defendants
28. The plaintiff in person and Mr. Y.K. Dubey, learned counsel for the defendant Nos. 1 & 2 and Mr. I.D. Vaid, learned counsel for the defendant No. 3 advanced their arguments.
29. The plaintiff in person opened his arguments on the note that on account of wrongful initiation of departmental inquiry, a twenty three years old misconduct marred by malice, false and incomplete twisted facts by the defendant Nos. 1 and 2 resulted in grave prejudice and caused irreparable loss to the plaintiff. The plaintiff further submitted that suppression of material and crucial facts kept the departmental inquiry pending for over 13 years and the defendant Nos. 1 & 2 CS DJ ADJ No. 16663/2016 Page No. 18/60 deprived the plaintiff of his lawful right of promotion and enjoying the benefits of his employment and career graph. The plaintiff submitted that the defendant intentionally withheld several promotions and benefits due to the plaintiff in routine on flimsy grounds and on the basis of false facts.
30. The plaintiff submitted that an investigation by CBI is not like a regular investigation. The SP registers the case; SP appoints an investigation officer and it is the SP who is in-charge and there are supervisory officers such as SP and law officer with regard to any investigation being undertaken by CBI. The plaintiff read relevant extracts particularly from the paragraph Nos. 3 and 4 from the Ex.PW1/9(Colly.) and submitted that no lacuna, shortcomings can be inferred from the work done by the plaintiff.
31. The plaintiff submitted that the defendants in their written statement have averred that on the basis of adverse remarks passed by the Court, a disciplinary action was initiated against the plaintiff. The plaintiff further submitted that it is the defence of the defendants that on account of alleged deficiencies in the investigation undertaken by the plaintiff, a memorandum (Ex.PW1/3) was issued to the plaintiff by the department. The plaintiff further submitted that it is the admitted position by the defendants that Court order (Ex.DW1/2) was on the basis of closure report filed by Mr. L.K. Dassi, Inspector. The plaintiff further submitted that it is also the admitted position by the defendants that previous closure report was not accepted by the Court. The plaintiff further submitted that the defendant No. 1 has admitted that CS DJ ADJ No. 16663/2016 Page No. 19/60 no closure report was filed by the plaintiff. The plaintiff further submitted that on perusal of order dated 13.07.1992 (Ex.DW1/2) 1 it is evident that the court order pertained to Mr. L.K. Dassi Kumar, and not the plaintiff.
32. The plaintiff submitted that no lacuna, shortcoming ever pointed out by the defendants in the work done by the plaintiff. The plaintiff further submitted that a CBI investigation is a teamwork and after the plaintiff left the case, two different officers investigated the case who filed their respective closure reports. The first closure report was not accepted and whereas the closure reports which were not accepted by Court did not pertain to the plaintiff. The plaintiff submitted that the closure report was filed in the year 1992, whereas the plaintiff was transferred in the year 1986.
33. The plaintiff submitted that not only three promotions but also all consequential benefits were denied to him by the department. The plaintiff urged that he was deprived the ranks of Addl. SP, SP and SSP by the defendants for no fault of his own. The plaintiff further submitted that the defendant No. 3 made the plaintiff a scapegoat and resultant of which the plaintiff had to go through an unwarranted ordeal and harassment. The plaintiff further submitted that there was only one charge made by the inquiry officer vide Ex.DW1/6. The plaintiff further submitted that neither imputation No. 2 nor imputation No. 3 as censure issued to the plaintiff were proved. The inquiry 1 Ex.DW1/2 had been de-exhibited for want of mode of proof vide examination-in-chief of DW1 recorded on 25.03.2019 CS DJ ADJ No. 16663/2016 Page No. 20/60 officer held imputation Nos. 3 and 6 proved, which did not pertain to the plaintiff, yet the plaintiff was intentionally harassed by a prolonged departmental inquiry and intentional deprivation of promotion(s) and consequential benefits of due promotion(s).
34. The plaintiff strenuously argued that with the findings against the plaintiff, the same were challenged by him before the Hon'ble CAT. The plaintiff further submitted that the Hon'ble CAT duly absolved the plaintiff of all charges and reprimanded the defendants for holding a delayed and prolonged inquiry and causing irreparable loss and injury to the plaintiff.
35. The plaintiff further submitted that the defendant No. 3 before issuing the memorandum to the plaintiff initiated a note and issued a charge-memo. The plaintiff further submitted that such practice is contrary to the applicable Rules, as no explanation was sought from the plaintiff prior to the issuance of the charge-memo. The plaintiff further contended that the proceedings are usually time bound proceedings and the same have to be concluded within a period of six months to one year, however for the reasons best known to the defendants, the plaintiff's ordeal lasted for over 13 years. The plaintiff submitted that there has not only been loss of face, reputation but also irreparable loss of promotions and consequential benefits when the plaintiff had to serve under his subordinates, who got promoted in routine course but the plaintiff's promotion was withheld on the pretext of ongoing departmental inquiry.
36. The plaintiff concluded on the note that the compensation and CS DJ ADJ No. 16663/2016 Page No. 21/60 damages sought by the plaintiff to the tune of ₹20,00,000/- (Rupees Twenty lakhs only) are notional, as the defendants had knowingly caused severe damage to the reputation of the plaintiff which though cannot be compensated in terms of money.
37. Per contra, Mr. Dubey, learned counsel for the defendant Nos. 1 and 2 submitted that the plaintiff undertook a perfunctory and shoddy investigation. The learned counsel further submitted that the accused persons against whom the plaintiff had concluded that no case is made out were convicted by the Ld. ACMM, Delhi on 20.07.2012.
38. Mr. Dubey, learned counsel for the defendant Nos.1 and 2 submitted that the suit preferred by the plaintiff is barred by limitation, as the suit ought to have been preferred by the plaintiff within the prescribed period of one year, as he has based his case on the judgment passed by the Hon'ble CAT. The learned counsel placed reliance upon Article 74, First Division-Suits, the Schedule of the Limitation Act, 1963. The learned counsel submitted that the Hon'ble CAT's order was passed on 05.02.2010 and it is from that date the period of limitation started to run. However, the plaintiff filed the plaint in the year 2013 i.e. 04.02.2013 and hence the suit preferred by the plaintiff is hopelessly barred by law of limitation.
39. The learned counsel for the defendant Nos. 1 and 2 further submitted that the plaintiff has failed to lead any documentary evidence to prove whether any loss or damage was caused to him. The learned counsel for the defendant No. 1 and 2 submitted that PW2 is the full blood brother of the plaintiff surprisingly PW2 did not even CS DJ ADJ No. 16663/2016 Page No. 22/60 have the basic knowledge about the plaintiff. The learned counsel further submitted that the testimony of PW3 reeks of hearsay evidence and the same cannot be relied in the eyes of law. The learned counsel further submitted that the two witnesses of plaintiff deposed that they have no personal knowledge and thus the plaintiff has failed to prove whether any loss and damage has been caused to the plaintiff by the alleged action/inaction of the defendants, as it has been pleaded by the plaintiff that he suffered great humiliation in the eyes of his family members, friends, neighbors, etc.
40. Mr. Dubey, learned counsel for the defendant Nos. 1 and 2 further submitted that though on one hand the plaintiff has denied any adversarial remark passed by the Ld. CMM against the plaintiff, however, imputation Nos. 3,4,5,6,7,9,10 and 11 were partly proved and it was for only that reason a punishment of censure was passed against the plaintiff. The learned counsel further submitted that the department has no intentional, personal grudge against the plaintiff and the action was taken by the department against the plaintiff in due course.
41. The learned counsel further submitted that the case pleaded by the plaintiff falls flat on its face, as he has urged that he was singled out and sidelined from due promotion and was an eye sore with the department but it is the very same department, who inducted him on reemployment that too post plaintiff's superannuation.
42. The learned counsel submitted that no evidence has been led by the plaintiff to prove damages and substantiate his claim as damages CS DJ ADJ No. 16663/2016 Page No. 23/60 and compensation from the defendants. The learned counsel for the defendant Nos. 1 and concluded his argument on the note that the plaintiff has miserably failed to prove his entitlement for damages as no loss was caused to the plaintiff for the acts which can be attributable to the defendants.
43. Mr. I.P. Vaid in a crisp and deftly manner advanced his arguments. The learned counsel submitted that the defendant No. 1, namely, Central Bureau of Investigation (CBI) has been incorporated pursuant to the Delhi Special Police Establishment Act, 1946. The plaintiff during the year 1985 was an Inspector for the Economic Offences Wing and later on in Special Crime. The learned counsel further submitted that the plaintiff investigated a case pertaining to the Handicraft Board and prepared a final report (Part-I). As per the report prepared by the plaintiff it was suggested that no action be taken against the private firm constituting of Mr. V. Aggarwal, Mr. Ashok Kumar Gupta and Mr. Ashok Kumar Aggarwal. The learned counsel further submitted the defendant No. 3 was the supervisory officer of the plaintiff with regard to the aforementioned case.
44. The learned counsel further submitted that on the basis of the plaintiff's final report which had its basis on the case diary, Inspector Jagannath and Inspector L.K. Dassi filed their closure report. The Ld. CMM held and passed adverse remarks for the perfunctory investigation. The adverse remarks passed by the Ld. CMM were received by the defendant No. 3, who was the SP at that point in time and who directed conduction of further investigation. The learned CS DJ ADJ No. 16663/2016 Page No. 24/60 counsel further submitted that one Mr. S.S. Sharma investigated and filed the charge-sheet against the accused persons. The learned counsel drew attention to the secret note dated 21.01.1995. The learned counsel further submitted that pursuant to the secret note dated 21.01.1995, no action was taken against Inspectors Dassi and Jagannath because the investigation was never marked to them and it was the plaintiff herein, to whom the investigation was marked.
45. The learned counsel for the defendant No. 3 submitted that not only the plaintiff has failed to prove his case but also no default can be attributed to the defendant No. 3, who only acted in the color of duty and suggested the right recourse against the plaintiff in accordance with applicable rules and law.
46. Mr. Vaid, learned counsel for the defendant No. 3 submitted that not only would he crave leave of the Court to adopt the submissions advanced by Mr. Dubey, learned counsel for the defendant Nos. 1 and 2 with regard to the plaintiff's suit being time barred but also he would like to take a legal objection to the plaintiff's suit being hit by Section 19 of the Code of Civil Procedure, 1908 (hereinafter "CPC"), as this Court does not have the jurisdiction to decide and adjudicate the dispute. The learned counsel further submitted that the suit is bound to fail on this ground itself.
47. The learned counsel for the defendant No. 3 concluded his argument on the note that the suit preferred by the plaintiff be dismissed with exemplary costs.
48. The plaintiff in person rejoined his arguments and drew CS DJ ADJ No. 16663/2016 Page No. 25/60 attention of the Court to order dated 05.02.2010 passed in O.A. No. 2328/2009 (Ex.PW1/4) that the Hon'ble CAT held in favour of the plaintiff. The plaintiff submitted that initiation of the departmental inquiry was illegal and the same has been ruled by the Hon'ble CAT in favour of the plaintiff. The plaintiff submitted that there has been intentional delay by the defendant No. 1, as nothing was done until the year 1996. The plaintiff further submitted that the Hon'ble CAT in its order attributed the delay to CBI and further submitted that had the defendant Nos. 1 and 2 concluded the departmental inquiry against the plaintiff in a timely manner, the plaintiff would have got all the benefits, as the effect of punishment would have lapsed long ago, however, the defendants intentionally prolonged the inquiry against the plaintiff.
49. With regard to the contention of the suit being barred by law of limitation, the plaintiff submitted that Article 74 of the Limitation Act, 1963, deals with malicious prosecution and not with departmental inquiries. The plaintiff further submitted that the plaintiff's case at best is covered by Article 101 or 113 of the Limitation Act, 1963 but it cannot be covered by Article 74 and thus the suit of the plaintiff is not barred by limitation. Lastly, the plaintiff submitted that with the intentional deprivation of due promotion and consequential benefits, the plaintiff has proved that irreparable loss and injury has been caused to the plaintiff by the action and inaction is on part of the defendants and above all the salary differences is sufficient proof of damages. The plaintiff concluded his submissions that his suit may be CS DJ ADJ No. 16663/2016 Page No. 26/60 decreed in terms of the prayer clause of the plaint and also the cost of the suit be awarded to the plaintiff.
Reasoning & Findings
50. I, have perused the complete case record and considered and deliberated over the submissions advanced by the plaintiff and the learned counsels for the defendants. My issue-wise findings ensue in the following paragraphs of this judgment.
Issue No. 1Whether the plaintiff is entitled to a recovery of damages consequent to defendant's action, if yes, to what amount?
51. The onus to prove the issue No.1 was casted upon the plaintiff.
52. On careful perusal of the pleadings and deliberations, the case brought by the plaintiff is that of a private law remedy against the errant State Department and its officials in the form of a civil suit for monetary damages under the tortious liability.
53. At the outset, I would prefer to deal with the objection taken by the learned counsel for the defendant Nos. 1 and 2 with regard to the suit preferred by the plaintiff being time barred. It is also observed that though a preliminary objection had been taken by the defendant Nos. 1 and 2 in their written statement but no adequate issue was framed. It is also observed that a question of limitation in the present case appears to be a pure question of law and the same can be dealt with accordingly.
54. However, even if assuming for the sake of arguments that the question of limitation being a mixed question of law and fact, the CS DJ ADJ No. 16663/2016 Page No. 27/60 same can also be answered, as the trial has concluded in the case and the parties have led evidence to prove their case and defence.
55. During the course of arguments, Mr. Dubey, learned counsel for the defendant Nos. 1 and 2 submitted that the suit preferred by the plaintiff is barred by law of limitation, as the prescribed period to prefer the present suit was 1(one) year, whereas the plaintiff has preferred the suit beyond the said period. To buttress his submissions, the learned counsel for the defendant Nos. 1 and 2 placed reliance upon Articles 74 - 76, First Division - Suits, The Schedule, Limitation Act, 1963.
56. The plaintiff contended the challenge to his suit for being time barred by submitting that the suit preferred by him is not covered under Articles 74 - 76, First Division - Suits, The Schedule, Limitation Act, 1963 but his suit is covered under Article 101 or at best under Article 113 of the First Division - Suits, The Schedule, Limitation Act, 1963. The plaintiff submitted that as he has preferred suit on the basis of the judgment passed by the Hon'ble CAT, the suit preferred by him is within the prescribed period of 3 years. The plaintiff further submitted that the Hon'ble CAT's judgment is dated 05.02.2010 and the plaint was filed by him on 04.02.2013 and the same is well within the prescribed period.
57. To decide the challenge flanked by the defendant Nos. 1 and 2 that the suit preferred by the plaintiff is barred by law of limitation and the contention urged by the plaintiff that the suit is preferred by him is squarely covered under Article 101 and/or Article 113, I deem it CS DJ ADJ No. 16663/2016 Page No. 28/60 appropriate to read the plaint meaningfully, to determine the nature, tenor and color of the suit and the basis of cause of action.
58. Although, the term 'plaint' has not been defined in the Code of Civil Procedure, 1908 it may be described as a complaint or a form of action. It is a pleading of the plaintiff. The rights of the parties to a suit must be determined on the date of the filing of the plaint.
59. A 'pleading' means a plaint or a written statement. The underlying object of pleadings is to ascertain the real dispute between the parties, to narrow down the areas of conflict, to make each side aware of the questions which are to be argued, to preclude one party from taking the other by surprise and to prevent miscarriage of justice.
60. The first basic principle of pleadings is that they should contain facts and only facts, and not law. The duty of a party or his pleader is to set out the facts upon which he relies and not the legal inference to be drawn from them, as it for the Courts to apply the law to the stated facts. However, the maintainability of a suit or an appeal is a point of law and need to be pleaded.
61. The second basic rule of pleadings is that they should state material facts only. 'Material facts' means all facts upon which the plaintiff's cause of action or the defendant's defence depends. Material facts differ from the particulars of a case. While material facts are the primary and basic facts which must be pleaded by a party in support of the case set up by him, since in the absence of pleadings a party cannot be permitted to lead evidence and failure to state material facts will result in the dismissal of a suit. The distinction between material CS DJ ADJ No. 16663/2016 Page No. 29/60 facts and particulars is one of degree - See Mohan Rawale v. Damodar Tatyaba alias Dadasaheb.2 Whether a particular fact is a material fact, and hence must be pleaded, depends on the facts and circumstances of the case - See Udhav Singh v. Madhav Rao Scindia.3
62. The third important rule is that every pleading must contain only a statement of the material facts on which the party relies (fact probanda) and not the evidence by which those material facts are to be proved (facta probantia). However, what are material facts and what is evidence depends on the facts and circumstances of every case.4
63. Apart from the above stated basis rules of pleadings other rules of pleadings dealing with special situations, as relevant for the case at hand are as follows:
(a) In cases where a party relies on misrepresentation, fraud, breach of trust, willful default or undue influence and in all other cases in which particulars may be necessary beyond such as are exemplified in forms provided in the CPC, particulars, with dates and items of necessary, must be stated in the pleading. Although what particulars are to be stated depends on the facts of each case, as a general rule as much certainty and particularity must be inserted as is reasonable having regard to the circumstances and to the nature of the acts.
(b) Where the contents of a document are material, it is sufficient to state in the pleadings their effect briefly without setting out the whole 2 (1994) 2 SCC 392 3 (1977) 1 SCC 511 4 Mohan Rawale v. Damodar Tatyaba alias Dadasaheb (1994) 2 SCC 392 CS DJ ADJ No. 16663/2016 Page No. 30/60 or any part of it unless the precise words of the document are material.
(c) Where it is material to allege malice, fraudulent intention, knowledge or any other condition of the mind of a person is sufficient to allege it as a fact without setting out the circumstances from which it is to be inferred are material.
64. That said, pleadings must be interpreted liberally with emphasis being paid to the substance of the matter rather than to the form of the pleadings - See Ram Sarup Gupta (deceased) by LRs v. Bishun Narain Inter College.5 The pleadings must be read as a whole and no part of a pleading ought to be interpreted out of context and in isolation - See Udhav Singh v. Madhav Rao Scindia.6
65. On skimming through the plaint, the pivot of the plaintiff's claim against the defendants is that he had been singled out and made a scapegoat by the defendants for no fault of his own. The plaintiff had to undergo a departmental inquiry for a prolonged period of 13 years and on account of imposition of the penalty of censure, the routine promotions and compensatory benefits were missed out and the plaintiff was forced to serve under officers, who were his juniors, subordinates and the plaintiff suffered social, official stigma including inferiority complex, financial and mental agony, hardship. It is also observed that the plaintiff in paragraph No. 13 of the plaint has averred that the plaintiff suffered great humiliation, complex due to each and every day of delay in promotion. The plaintiff has averred 5 (1987) 2 SCC 555 6 (1977) 1 SCC 511 CS DJ ADJ No. 16663/2016 Page No. 31/60 that his image and reputation was also lowered in the eyes of his relatives, family members, friends, colleagues, neighbors, etc. due to him not getting promoted for a long period, regardless of the same being due long time back.
66. In paragraph Nos. 16 - 20 of the plaint, the plaintiff has reproduced the text of the order dated 05.02.2010 passed by the Hon'ble CAT. Thereafter, the plaintiff has averred in the plaint that he was sidestepped on the pretext of the prolonged departmental inquiry and on account of the conduct of the defendants, the plaintiff suffered great mental tension, pain and agony besides lowering of his reputation in the eyes of general public, family members and friends for years together.
67. The relevant extract of the plaint, particularly, paragraph Nos. 25 - 36 are reproduced in verbatim, as under:
"25. That by lingering on the departmental inquiry for 13 years in respect of 23 years old so-called misconduct, the defendants not only deprived the plaintiff from enjoying the fruits and happiness of the promotions to the post of Additional Superintendent of Police since May 2001 and that of Superintendent of Police from December, 2004 onwards till superannuation on 31.01.2010 but derailed him, defamed him and spoiled his reputation in the department as well as society including friends and relatives from 1996 onwards. It is submitted that the above said junior Shri R.S. Dhankhar retired as Senior Superintendent of Police in Pay-Band- IV and had the plaintiff been not falsely targeted by the defendants and even if the departmental inquiry was initiated the same would have been completed within a period of one year, the plaintiff would also have become CS DJ ADJ No. 16663/2016 Page No. 32/60 at-least Senior Superintendent of Police but he was deprived of the said fruit despite having blemish less career in the entire service.
26. That by lingering on the departmental inquiry for 13 years initiated at the behest of defendant no.3, the defendant no.1 & 2 made the plaintiff to work under his juniors from 2001 onwards till retirement and thereby further subjected him to great humiliation and mental torture continuously for about 9 years. The juniors of the plaintiff had been writing the Annual Confidential Reports of the plaintiff which was not only agonizing but the same was highly humiliating and the same was a matter of shame for the plaintiff but the plaintiff was subjected to bare all the agony due to the act/conduct of the defendants.
27. That due to the above-said acts and conduct of the defendants, the plaintiff has suffered great mental tension, pain and agony besides lowering of his reputation in the eyes of general public, family members and friends for years together.
28. That the defendants have thus made themselves liable to pay compensation to the plaintiff in the form of damages. The defendants have indulged themselves in such nefarious act of initiating a false departmental inquiry against the plaintiff, then to keep the same pending for years together so as to deprive the plaintiff from his bona fide promotions to the rank of Addl. S.P., S.P. and Sr. S.P. which is extremely defaming in nature and leads to maligning the image and reputation of the plaintiff.
29. That it seems that the defendants have committed this mischief of maligning and damaging the reputation of the plaintiff with malafide intention and ulterior CS DJ ADJ No. 16663/2016 Page No. 33/60 motives which is not only illegal, unlawful and arbitrary in nature but is also gross misuse and abuse of the official positions.
30. That the act of the defendants is not only defamatory but is an attempt to make the plaintiff a laughing stock in the eyes of his colleagues, friends and relatives as well as public at-large. It shows the dubious and scandalous conduct of the defendant in deliberately and intentionally damaging and destroying the reputation of the plaintiff in the public esteem.
31. That the acts of defendants are so serious and grief that the same have caused great mental tension from the year 1992 to 2010 continuously.
32. That though no amount would compensate the mental agony which the plaintiff suffered during all these days and no amount can compensate the lowering of image and reputation of the plaintiff in the eyes of his family members, friends, relatives, neighbours and colleagues etc. but the plaintiff assesses that an amount of Rs.20,00,000/- would be just and sufficient for compensating the plaintiff. Even otherwise also the same is not only necessary but the defendants are liable to be penalized and the above said amount is liable to be recovered from the defendants jointly and severally as a deterrent also so that no employee should be made to suffer in the hands of his superiors/officers unnecessarily and are deprived of the legitimate dues and rights. Thus, the defendants are liable to make the payment of compensation to the tune of Rs.20,00,000/- (Rupees Twenty Lakhs only) jointly and severally to the plaintiff for causing damages to the reputation and maligning the image of the plaintiff and causing mental tension, pain and agony during all these days to the plaintiff and his family members. It is submitted that the plaintiff CS DJ ADJ No. 16663/2016 Page No. 34/60 is now a resident of the Dwarka but till today the friends and relatives come and ask as from which post the plaintiff retired from the service and the sorrow of the plaintiff knew no bounds when he was compelled to say that he retired from the post lower than he deserved. It is submitted that knowing fully well that the memorandum issued by the defendant no. 3 was out of personal vengeance and was because the plaintiff was targeted illegally and unlawfully by the defendant no.3, the defendant no.1 and 2 instead of taking appropriate action against the memorandum, initiated proceedings/departmental inquiry against the plaintiff and deliberately and intentionally continued the same for a period of 13 years so as to deprive the plaintiff from his legitimate promotion and dues.
33. That notices U/s. 80 C.P.C. were personally served upon defendant no.1 & 2 on 30.07.2012 whereas the said notice was sent to defendant no.3 by post. No reply to the said notices has been received till date from defendant no.1 & 2 whereas false and frivolous reply dated 28.08.2012 has been received from defendant no.3.
The copy of the notice duly acknowledged by the defendant no.1 and 2 on 30.07.2012 are annexed as Annexure-F (colly.).
The copy of the notice sent to the defendant no.3 along with the postal receipt is annexed as Annexure-G (Colly.).
The reply dated 28.08.2012 as sent by defendant no.3 is annexed as Annexure-H.
34. That the cause of action to file the present suit arose on 5.2.2010 when even the Hon'ble Central Administrative Tribunal after considering the entire case CS DJ ADJ No. 16663/2016 Page No. 35/60 of the plaintiff observed that the plaintiff is entitled to be compensated as the plaintiff has suffered irreparable damage while passing the order dated 5.2.2010 by which the Hon'ble Principal Bench of C.A.T. New Delhi quashed the charge-sheet dated 27.6.1996 of defendant no.1 and order dated 10.06.2009 of defendant no.2. The cause of action is continuous and still subsist, as no compensation has yet been paid by any of the defendants.
35. That the plaintiff resides in Delhi well within the jurisdiction of this Hon'ble court where part of cause of action arose. The office of the defendant no.1 and defendant no.2 is situated in Delhi. The cause of action arose at Delhi and therefore, this Hon'ble court has jurisdiction to try and entertain the present suit.
36. That for the purpose of court fee and jurisdiction the suit is valued at Rs.20,00,000/- (Rupees Twenty lakhs only) and advolurem court fees has been affixed.
However, the deficient court fees, if any, can be paid by the plaintiff as and when directed by this Hon'ble court."
[Emphasis added by underlining and highlighting of text]
68. This Court observes and finds from the perusal of the plaint that the plaintiff has preferred a suit for damages and compensation against the defendants for not only victimizing him but also sidestepping him from the due promotions during his service tenure in the garb of the departmental inquiry and imposition of penalty of censure upon him.
69. The plaintiff's submission that the suit preferred by him is covered under Article 101 or 113 of the First Division-Suits, the Schedule of the Limitation Act, 1963 does not impress me, as it is CS DJ ADJ No. 16663/2016 Page No. 36/60 apparent nay evident from the plaint that the suit is for compensation, damages and the plaintiff has himself urged that he has been defamed and harassed by the defendants by commission of wrongs on their part.
70. The plaintiff has formed the order dated 05.02.2010 passed by the Hon'ble CAT as his basis to seek compensation, damages. The relevant extract of the order dated 05.02.2010, particularly from internal page Nos. 43 - 47 is reproduced as under:
"... ... ...
.........
Reference in this connection be also made to a judgment of this Tribunal in Trilochan Singh v. Union of India [ATR 1986 (2) CAT Del. 405] wherein delay of 18 months in framing chargesheet and four years taken for completing the inquiry was held unjustified on any count. It was held to be a case of unconscionable delay in disposal of the disciplinary proceedings. This tribunal in G.Ramachandran v Sr. Supdt. Of Post Offices, Madurai [(1987) 3 ATC Mad.629] held that unexplained delay of five years in framing chargs and of 13 years in conducting the enquiry would constitute denial of reasonable opportunities to defend himself and amount to violation of principles of natural justice. In M.P. Schdeva v State of HP [1991(1) SLR H.P.A.T. 349] it was held that there was no justification to initiate departmental proceedings after a lapse of 11 years and imposition of penalty of censure after a period of 14 years from the date of incident. The investigation being supervised by senior officers all through, it could not be said that the department would not know the lapses, if any, committed by the applicant in investigating the matter. The nature of charges is also such that an employee could not be expected to answer the same after CS DJ ADJ No. 16663/2016 Page No. 37/60 lapse of ten years. We are of the view that on the points as raised by the applicant and as mentioned above, this Application needs to be allowed. However, we may mention that there is no reply to the contention raised by the learned counsel representing the applicant that the applicant was not supplied the second stage advice and the proceeding would be vitiated on that count also. Reference in this connection be made to the judgment of the Hon'ble Supreme Court in State Bank of India v D.C. Aggarwal [AIR 1993 SC 1197]. It is also the unrebutted case of the applicant that after the enquiry was closed by the enquiry officer, the presenting officer submitted its brief which was received the enquiry officer on 30.07.2003, whereas the brief of the applicant was received by him on 10.090.2003, and thereafter the enquiry officer conducted hearings on 12.1.2004 NS 13.01.2004 WITHOUT THE KNOWLEDGE OF THE APPLICANT. It is the case of the applicant that holding of such hearings on his back would be illegal and against the principles of natural justice. The applicant has also raised the plea of discrimination. The learned counsel contended that the applicant had never filed any closure report in the investigation in question and that he was transferred to Mumbai in 1987 whereafter the investigation was conducted by Shri S. Jagannathan, Inspector, who filed the first closure report, which was not accepted by the CJM, who ordered further investigation. Another investigating officer, i.e. Shri L.K. Dasikumar, Inspector, further investigated the case and also eventually filed another closure report before the CJM, who again did not accept the report and ordered further investigation. It is the case of the applicant that only the applicant was picked up for issuance of chargesheet for not having investigated the case properly, whereas the other two investigating officers who were also entrusted with investigation of the same case, were not issued any chargesheet. This contention CS DJ ADJ No. 16663/2016 Page No. 38/60 also, in our view, has merit. It is also the case of the applicant that vital documents like case diaries, correspondence and progress reports etc. were not supplied to him claiming privilege. No privilege on these documents could be claimed, is the contention of the learned counsel. It is also the case of the applicant that the charge-sheet was issued to him without obtaining first stage advice of CVC. The applicant was charge- sheeted on 27.06.1996, whereas CVC tendered its first stage advice on 13.1.1997. There is no reply to this factual averment as well. We need not, however, go into all these issues, as, in our view, the points on which discussions has been made above, would be enough to set aside the impugned order dated 10.6.2009 inflicting punishment of censure upon the applicant. We may also mention that even if we wee to hold one charge against the applicant proved and the other as partly proved for which the applicant has been inflicted the punishment of censure, the punishment in the present case should be deemed to have been inflicted, at the most, one year after the enquiry started against the applicant, i.e. June 1997. We would have also held in that event that the effect of the punishment to the applicant would not last beyond the period so prescribed from June, 1997, as surely, the respondents would not be justified, by any stretch of imagination to keep the enquiry pending for years and years without any justification, and meanwhile, retire the applicant. This is what precisely has happened in the present case. For this, we place reliance upon our judgment in O.A. No.1995/2006 decided on 16.5.2007 in the matter of Dinesh Kumar Patnaik v Union of India & Others, wherein also the enquiry was delayed for no fault of the employee. While holding the said case to be of minor penalty, we had ordered that the order of minor penalty would have effect from the day UPSC had given its first opinion. It may be recalled that for 13 years when the enquiry remained pending, the applicant was CS DJ ADJ No. 16663/2016 Page No. 39/60 superseded by his colleagues and juniors for the posts of S.P., S.S.P. and even D.I.G. of police. The ultimate order came to be passed on 10.06.2009, just before seven months from the date of superannuation of the applicant. This has caused irreparable damage to the applicant, for which he can never be compensated. Had the respondents dealt with the matter promptly and the applicant would have been inflicted with the punishment of censure by June 1997, its effect would have gone by within a year or so, and he would have then been promoted to the posts of S.P. and S.S.P. as well.
14. In totality of the facts and circumstances of this case, while allowing this Application, we set aside the memorandum dated 27.6.1996 initiating departmental proceedings against the applicant, all proceedings taken in the matter, as also order dated 16.6.2009 inflicting the punishment of censure upon the applicant. In consequence of setting aside of the memorandum, proceedings and the order aforesaid, the applicant would be considered for promotion for all posts on which his juniors may have been promoted from the date they were promoted and would be fixed in proper pay scales accordingly, which would be notional, but the pay and emoluments of the applicant shall be worked out as mentioned above and he would be paid post-retiral dues accordingly. These directions shall be complied with within six weeks from today. As we have already mentioned, the applicant has suffered irreparable damage which cannot be compensated, but surely, the applicant, for putting him through untold misery and hardship, would be entitled to costs, which we quantify at Rupees twenty thousand, which, we may mention, are only conciliatory and not compensatory."
[Emphasis added by underlining and highlighting of text] CS DJ ADJ No. 16663/2016 Page No. 40/60
71. I, fail to agree with the plaintiff that his suit is based on a judgment or a recognizance. I, am of the considered view that the plaintiff's suit is squarely covered under Articles 72, 74, 75 and 76 of First Division-Suits, the Schedule of the Limitation Act, 1963, as per the plaintiff's own averments in the plaint. Thus, the plaintiff ought to have preferred the suit within the prescribed period of 1(one) year and not 3(three) years. I, also fail to agree with the plaintiff that for the nature of the suit, claim filed by him against the defendants, the same would be under the ambit of Article 113 of the First Division-Suits, the Schedule of the Limitation Act, 1963. In short, the suit preferred by the plaintiff is hopelessly time barred.
72. With regard to the second legal challenge flanked by the defendant No. 3 that this Court is not the competent court to decide and adjudicate the dispute amongst the parties, as per the provisions of Section 19, CPC and the suit be dismissed. Section 19, CPC, reads as under:
"19. Suits for compensation for wrongs to person or movables.-Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the option of the plaintiff in either of the said Courts."
73. On reading Section 19, CPC, along with the illustrations therein, CS DJ ADJ No. 16663/2016 Page No. 41/60 the plaint and the memo of parties, this Court finds that the plaintiff's suit is for compensation, damages against the defendants for the wrongs committed by them upon him and as per Section 19, CPC, the competent Court to decide and adjudicate the dispute amongst the parties would be either the Courts at New Delhi District, Delhi as the defendant Nos. 1 and 2 are based in New Delhi District, Delhi or at Chennai, Tamil Nadu, were the defendant No. 3 is residing. It is also observed that neither PW2 - C.L. Gupta nor PW3 - Prakash Chand, reside within the jurisdiction of this Court, in whose eyes the plaintiff has been stated to be defamed. The invocation of the jurisdiction of this Court by the plaintiff on the ground of his residency within the territorial jurisdiction of this Court is misplaced. The second legal challenge to the maintainability of the suit for want of territorial jurisdiction is held to be correct.
74. To decide this issue on merits what needs to be seen is whether the defendants acted without reasonable and probable cause and were actuated by malice in prosecuting the plaintiff with a departmental inquiry.
75. A civil case is decided on balance of probabilities. The gravamen of the plaintiff against the defendants is that the plaintiff was wrongly charged for filing a closure report, which was rejected by the Ld. CMM, Delhi and a memorandum dated 27.06.1996 was issued to the plaintiff. Thereafter, a departmental inquiry was initiated against the plaintiff by the defendant No. 1 at the behest of the defendant No. 3, which lasted over 13 years and on recommendation of the CS DJ ADJ No. 16663/2016 Page No. 42/60 departmental inquiry vide order dated 10.06.2009, the defendant Nos. 1 & 2 imposed a penalty of censure against the plaintiff. The case of the plaintiff is that with the prolonged departmental inquiry and imposition of penalty, the plaintiff was intentionally sidestepped from the due promotions and consequential benefits in routine course and had to serve under his junior officers and subordinates. It is the case of the plaintiff, of him not only serving under his juniors, who wrote his annual confidential reports, but also he was defamed and caused harassment, mental agony, when his family members, friends asked him about the last post, he retired from the defendant No. 1 on his superannuation i.e. 31.01.2010.
76. The plaintiff assailed the memorandum dated 27.06.1996, order dated 10.06.2009 passed against him before the Hon'ble CAT, and was vindicated vide order dated 05.02.2010 passed in S.L. Gupta v. Union of India & Anr. - O.A. No. 2328/2009. As per the order dated 05.02.2010, the Hon'ble CAT set aside the memorandum dated 27.06.1996, the departmental proceedings taken against the plaintiff and also the order dated 10.06.2009 and directed that the plaintiff herein be considered for promotion for all posts on which his juniors may have been promoted from the date they were promoted and his pay be fixed accordingly, which would be notional and he also be paid post-retiral dues accordingly.
77. The plaintiff has averred in the plaint that his image and reputation was also lowered in the eyes of his relatives, family members, friends, colleagues, neighbors for him not getting promoted CS DJ ADJ No. 16663/2016 Page No. 43/60 for a long period, regardless of the same being due long back. The plaintiff has also averred that the defendants did not comply with the order dated 05.02.2010 in a timely manner and he had to prefer an application titled as S.L. Gupta v. Union of India & Anr. - O.A. No. 3377/2012 before the Hon'ble CAT and sought further directions. The Hon'ble CAT by order dated 17.01.2012 passed certain directions in favour of the plaintiff. It is observed that no such order dated 17.01.2012 has been placed on record by the plaintiff.
78. The plaintiff has averred in the plaint that the defendant Nos. 1 and 2 gave him notional promotion for the post of Supdt. of Police w.e.f. 31.12.2004 vide CBI Head Office, Order No. 429 dated 22.03.2011.
79. I, deem appropriate to reproduce the relevant extract from the Halsbury's Laws of India7 with regard to defamation, which reads, as under:
"[285.298] Introduction The concern of the law of defamation is the protection of individual reputation. In past, claims stemmed mainly from spoken words. A defamatory act essentially is now generally understood as an attack on the reputation of a person either by written or spoken words, or by any other means of communication, for example by means of a caricature, an effigy, advertisement, or film. General allegations affecting the reputation of a class of people, humiliating a person or members of a class of people as regards character, profession or learning, connecting a person with grave sins or offences have all been held to be defamatory. Even if certain facts were true, no 7 Halsbury's Laws of India, Vol. 35, Second Edn.CS DJ ADJ No. 16663/2016 Page No. 44/60
justification may be given to justify injuring another. Attempts have been made to legislate on the matter of reconciling this end with the competing demands for freedom of speech and free speech. In most jurisdictions the existing law is a mixture of statute and common law.
Right of reputation is acknowledged as an inherent personal right of every person. It is a jus in rem, an absolute right, good against anyone. A man's reputation is his property, and, it has been stated that it comprises more valuable property than any other property. That is why it has been said to a person of high social esteem, dishonour will exceed death and degree of suffering owing to loss of reputation far exceeds suffering occasioned by loss of property. Thus, any statement or representation which exposes a person to contempt, hatred or ridicule, tends to injure him in his profession or trade, or causes him to be shunned or avoided by neighbours in defamatory."8
80. Defamation is not limited to the casting of aspersions on the private character of an individual and his reputation for honor, honesty or integrity, it also embraces disparagement of his reputation in trade, business, profession or office. However, defamation is distinct from some other wrongful acts which may injure reputation such as say unlawful arrest or malicious prosecution. It is not necessary that the offending words act to excite feelings of disapprobation towards the defamed, rather, it is sufficient that they cause him to be shunned and avoided.
8 Introduction to Defamation, para 285.298, Halsbury's Laws of India, Vol. 35, Second Edn.
CS DJ ADJ No. 16663/2016 Page No. 45/6081. The question of whether a statement is defamatory 9 includes a question of whether a 'right thinking person' would see the statement as such, where it appears to be sufficient that the allegation stirs up adverse feelings among a substantial and respectable group of the community. Publication is the gist of the wrong of defamation and it must be made to a person or people other than the defamed. 10 In order to establish an action for libel, the statement complained of should be false, should be made in a written form, should contain defamatory content and should be published.
82. The wrong of 'defamation' may be committed either through printing, writing or its equivalent, conveyed through a visual communication or by way of speech. The term 'libel' is used for defamation by writing and 'slander' for defamation by speech. In short, defamation is either by slander - words, speech or by libel - written statement. In order to establish an action for libel, the statement complained of should be false, should be made in a written form, should contain defamatory content and should be published.
83. The position in law is well settled that defamation does not happen in vacuum, one is always defamed in the eyes of other. It is observed that the plaintiff has neither averred nor mentioned the name of any independent person, in whose eyes the plaintiff was defamed by the alleged defamatory disparaging, messages, emails, blog-posts posted by the defendants. Further, there has been no independent 9 See Paras Dass s/o Jugal Kishore v. Paras Dass s/o Baij Nath - (1969) Del LT 241 10 See M.C. Verghese v. T.J. Ponnan - AIR 1970 SC 1876 CS DJ ADJ No. 16663/2016 Page No. 46/60 witness to vouch for the plaintiff's claim that the plaintiff has been defamed in their eyes by the acts and conduct of the defendants. The dictum in law is well settled and is as old as the hills, one who avers must prove.
84. Keeping in view the well settled position in law that one cannot be defamed in his own eyes and one has to be defamed in the eyes of the others, be it an individual, person and general public at large. The plaintiff (PW1) along with himself examined two more witnesses, namely, C.L. Gupta (PW2) and Prakash Chand (PW3).
85. On being cross-examined by Mr. Dubey, the learned counsel for the defendant Nos. 1 & 2, the plaintiff (PW1) stated that he was handed the investigation of case number RC 8/E/85 sometime in the year 1985. PW1 stated he never handed over the case to the investigating officer. PW1 voluntarily stated that when he was transferred from the Special Crime Branch, New Delhi sometime in June-July, 1986, he was investigating the case number RC 8/E/85 and he was ordered to hand over all the case files to the crime in-charge by the SP, as no other officer was deputed by the SP for this purpose. PW1 stated that there are no laid down rules for transferring the case from one investigating officer to another investigating officer.
86. PW1 during his cross-examination stated that he does not know the basis of the closure reports filed by the subsequent investigating officers, namely, Jagan Nathan and L.K. Dassi Kumar, as he was not posted at the crime branch at that point in time. PW1 further stated that there are no laid down procedures for preparation of secret notes CS DJ ADJ No. 16663/2016 Page No. 47/60 within the CBI. PW1 admitted that senior CBI officers can impose penalty of censure on the junior officers of their own.
87. PW1 during his cross-examination admitted that he has accepted the notional promotions, as well as reemployment after his superannuation. PW1 further admitted that the cost of ₹20,000/- (Rupees Twenty thousand only) imposed by Hon'ble CAT was received by him from the defendant number one. PW1 denied that case RC 8/E/85 was investigated by him. PW1 admitted that the case RC 8/E/85 was handed over to him by another investigating officer for further investigation. PW1 denied the suggestion that the alleged adverse remarks made by the Ld. CMM downgraded the image of CBI. PW1 further denied the suggestion that there was no delay either on the part of CBI or on the part of Department of Personnel and Training.
88. PW1 during his cross-examination by the learned counsel for the defendant No. 3 stated that he is not aware of the role played by the defendant No. 3. PW1 admitted that he did not work under the defendant No. 3, namely, Ashok Kumar, IPS (who was SP (SCB), CBI). PW1 admitted that the case related to the fictitious firm M/s Triloki Enterprises with a fictitious name of its proprietor as Triloki Nath, whose address he did not remember. PW1 stated that on the order of the superior officers he submitted final report (Part-I) sometime in the end of 1986. PW1 stated that he has mentioned in the case diary/report that the identity of the proprietor of the non-existing firm could not be established till then and recommended departmental CS DJ ADJ No. 16663/2016 Page No. 48/60 action against Sh. U.N. Kapoor stating that the action against the persons who floated the firm can be treated as and when the identity of the proprietor is established. PW1 further stated that as far as he could recollect, he did not recommend that the case should be closed and no further investigation should be conducted. PW1 further stated that it was clearly mentioned in the final report (Part-I) that the same is being submitted on the basis of the evidence collected till then under the orders of supervisory officers.
89. It is observed that on a specific question put to PW1, whether he did not submit any supplementary final report Part-I (FR-1), he answered that in his case all the law officers, supervisor officers and senior officers were fully satisfied with the investigation conducted by him till then and supervisory officers never suggested any further point of investigation, thus the question of submitting a supplementary FR did not arise.
90. PW1 on being questioned whether as per chapter 19.1 of the CBI Manual, investigating officers submit FR-1 only on the completion of the investigation, PW1 answered that he does not remember what is written in chapter 19.1 of the CBI Manual. PW1 further answered that as per the practice, investigating officers submit FR-1 on the order of the supervisory officer and the same was done in the present case by him. On being put an incisive question by the learned counsel during the cross-examination, PW1 to the question that no order of SP is required for submission of a FR-1, PW1 retorted CS DJ ADJ No. 16663/2016 Page No. 49/60 that he has answered earlier that he is not aware about Chapter 19.1 of the CBI Manual.
91. PW1 admitted that after passing of the remarks by the learned CMM, Delhi the case was investigated by Mr. S.S. Sharma, Inspector, CBI (SCB), New Delhi. PW1 further submitted that the further investigation by Mr. S.S. Sharma was conducted after the Court ordered for the same and added that he was not a party to the investigation order to the charge sheet/trial of the same period.
92. PW1 admitted that the secret note dated 21.01.1995 (Ex.PW1/2) recorded by defendant No. 3 was marked to the DIG (SCB) and the JDSC-II. However, PW1 further stated that in the secret note dated 21.01.1995 it was clearly mentioned that the closure report filed in the month of February 1990 was not accepted by the Court and further investigation was ordered. Thereafter, second closure report was filed by Mr L.K. Dassi Kumar, Inspector.
93. PW1 answered that he is not aware whether the secret note dated Ex.PW1/2 was examined by the Director, CBI. PW1 stated that he is not aware that the said secret note containing twisted and wrong facts was put to the Director CBI. PW1 added that it is a fact that his explanation was not taken by defendant No.3 before issuance of the secret note- Ex.PW1/2.
94. PW1 admitted that the defendant No.3 has never written his annual confidential report. PW1 also answered that he does not remember who issued the charge memo dated 27.06.1996. PW1 CS DJ ADJ No. 16663/2016 Page No. 50/60 answered that he is not aware of the role played by the defendant No.3 with regard to the conduction of inquiry by CVC which took six years.
95. PW1 during his cross-examination admitted that the punishment of censure was imposed on 10.06.2009 only after the advice of UPSC. On being quizzed whether the defendant No.3 was made a party to the original application preferred by the plaintiff herein before the Hon'ble CAT, PW1 answered that CBI was also one of the parties.
96. PW1 was put a specific question that whether after receiving the statutory advice of UPSC, the file shuttled from under secretary to deputy secretary to joint secretary to additional secretary to secretary vigilance and finally it went to the Hon'ble Prime Minister, who was the Minister-in-Charge and thereafter the punishment of censure was imposed. PW1 answered that it is the procedure, the notes in the file are put by the various officers of the DoPT and all the officers in the plaintiff's case right from the section officer to the additional secretary were of the opinion that this was a fit case for exoneration and all of them recommended again and again to exonerate the plaintiff but the secretary, DoPT was not agreeable and asked them to initiate a fresh note for imposition of minor penalty which was then done and the approval of the Minister-in-Charge was taken for imposition of censure punishment on the plaintiff. PW1 further stated that as per the information gathered by him, the same was got done by the secretary DoPT so as to save their skin for withholding the plaintiff's promotion from the post of Addl. SP, SP and SSP that the plaintiff may not hold them responsible for the long delay.
CS DJ ADJ No. 16663/2016 Page No. 51/6097. PW1 was questioned that whether after his retirement, he worked as a consultant for about two years and only thereafter he chose to file an application before the Hon'ble CAT challenging the order of censure imposed on him. PW1 answered the question in negative. PW1 stated that he superannuated on 31.01.2010, whereas the application was filed by him before the Hon'ble CAT in the year 2009 itself during the tenure of his service.
98. PW2 testified that he is the full blood brother of the plaintiff and five years elder to the plaintiff. PW2 retired as Chief Engineer, Army Head Quarters, MES in the year 2005. PW2 testified that the marriage of the daughter of the plaintiff was fixed with one Mahajan boy of Faridabad. Though, PW2 could not tell the name of the boy with whom the daughter of the plaintiff was to get married but he did name the father of the boy, Gulshan Mahajan. PW2 further stated that the Mahajan family lived in Sector 15, Faridabad. PW2 during his cross- examination stated that the roka ceremony of the plaintiff's daughter with the Mahajan boy was organized in Faridabad but he cannot tell the exact location. PW2 further stated that 40-50 people were invited to the roka ceremony. PW2 answered in negative with regard to production of the photographs of the occasion. PW2 stated that he cannot tell the exact date of the ceremony but it was organized sometime in the year 2000.
99. PW2 during his cross-examination stated that he came to know that inquiry was conducted against the plaintiff but he could not tell what channel was followed.
CS DJ ADJ No. 16663/2016 Page No. 52/60100. On being cross-examined by the learned counsel for the defendant Nos.1 and 2, PW2 stated that he was told the inquiry was initiated under Rule 14 for imposition of major penalty. PW2 further stated that he is not aware about the facts on which the inquiry was initiated against the plaintiff but he was told about the inquiry by the plaintiff. PW2 also stated that he had been Principal, Director Vigilance at Army Headquarters in number of cases. He further stated that an inquiry under Rule 14 was completed in six months, however, he does not know about the CBI inquiries. PW2 denied the suggestion that he is an interested witness on account of being the real brother of plaintiff.
101. PW3 admitted that conducting an investigation is the normal duty of inspectors, DSPs, Addl. SPs of CBI. PW3 further admitted that in the year 1993 he was not posted in the EOW Branch of CBI. PW3 also admitted that he was not posted in the Special Crime Branch, Delhi in the year 1995. PW3 stated that he personally does not know for what the inquiry was instituted against the plaintiff but he was told by the plaintiff that he was issued a charge sheet with regard to some investigation of the case in the year 1996.
102. During his cross-examination PW3 stated that he does not know what remarks were passed by Sh. J.P. Sharma, Ld. CMM, Delhi on 13.07.1992 with regard to the closure report. PW3 stated that he does not have any personal knowledge about the marriage of the plaintiff's daughter, which could not be carried out due to the inquiry against the plaintiff. PW3 denied the suggestion that the position with regard to CS DJ ADJ No. 16663/2016 Page No. 53/60 the marriage of plaintiff's daughter being called off is hearsay evidence.
103. PW3 during his cross-examination admitted that he has not investigated any particular matter along with the plaintiff. However, PW3 in his evidence by way of affidavit Ex.PW3/A stated that plaintiff was a meritorious officer, as he had worked with him on his last posting with the CBI in the year 2009. PW3 admitted that police medal cannot be recommended in favour of an officer, who is facing a departmental inquiry. PW3 also admitted that in case of a Gazetted Officer, departmental inquiries are conducted by CVC and not CBI. PW3 also admitted that SP, CBI has nothing to do with the departmental inquiries conducted by CVC.
104. PW3 further stated that he has no knowledge whether Surender Pal, Vijay Kumar, M.K. Bhat and R.S. Dhankar, retired CBI officers faced departmental inquiries or not.
105. During his cross-examination, PW3 stated that no memo was given to the plaintiff with respect to the subject of scolding referred in paragraph No.10 of his evidence by way of affidavit (Ex.PW3/A). PW3 denied the suggestion that he did not see any person ever scolding the plaintiff during the course of his official duties. PW3 admitted that no complaint was made by the plaintiff with regard to the scolding referred in paragraph No.10 of his evidence by way of affidavit (Ex.PW3/A). PW3 admitted that Surender Pal, Vijay Kumar, M.K. Bhat and R.S. Dhankar, were promoted on their own merits.
CS DJ ADJ No. 16663/2016 Page No. 54/60106. Mr. Dubey, learned counsel for the defendant Nos. 1 and 2 adopted the cross-examination of PW3 conducted by the learned counsel for the defendant No. 3. PW3 did admit that for preparation of his evidence by way of affidavit, he had not referred to any other document except Ex.PW1/9 i.e. seniority list of Departmental Superintendent of Police dated 28.03.2011. PW3 stated that he had personal relations with the plaintiff but not family relations with him.
107. This Court finds that the plaintiff has failed to prove that the defendants defamed the plaintiff by libel and slander. The plaintiff has failed to lead any evidence that in whose eyes the plaintiff has been defamed. The testimony of PW2 and PW3 do not corroborate in any manner the claim of the plaintiff of having being defamed in the eyes of his family members, friends and neighbors.
108. As far as malice part is concerned in evidence the plaintiff has made reference to the hatred nourished by the defendant No. 3 against the plaintiff. There is only a bald statement of the plaintiff that he had been singled out and no evidence has been led by the plaintiff to actuate any malice targeted by the defendants towards the plaintiff. The plaintiff during the cross-examination admitted that the defendant No. 3 neither wrote his annual confidential report nor any evidence has been led by the plaintiff to prove that he had been sidestepped by the defendant No. 3 and singled out and was deprived of his due promotions. This Court also observes and finds that during the cross- examination of PW1 on 26.09.2016, PW1 stated that all the officers in his case right from the Section officer upto the Addl. Secretary were of CS DJ ADJ No. 16663/2016 Page No. 55/60 the opinion that the plaintiff's case is a fit case for exoneration but the Secretary, DoPT was not agreeable and asked them to initiate a fresh note for imposition of minor penalty and thereafter the approval of the Minister-in-Charge was sought. PW1 in the same breath also stated that as per the information gathered by him, the same was done by the Secretary, DoPT to save their skin for withholding his promotions. It is not out of place to observe that the plaintiff has neither led any evidence to prove his assertion of the Section officer upto the Addl. Secretary's opinion of plaintiff being exonerated. It is also observed that no evidence is led by the plaintiff to prove that the decision of imposition of censure punishment was done at the behest of Secretary, DoPT. It is not out of place to observe that the plaintiff did not take any step to summon and produce the relevant files containing any file notings, note in his favour and that of his claim of being singled out by Secretary, DoPT. This Court also observes that the plaintiff has claimed damages to the tune of ₹20,00,000/- (Rupees Twenty lakhs only) from the defendants, however, no evidence has been led by the plaintiff to prove the damages incurred by him. It is not sout of place to observe herein that the plaintiff failed to even summon the basic salary slips of Addl. S.P., S.P. and S.S.P to corroborate his claim of the salary difference and the damage caused to him by loss of any such salary difference. The dictum in law is as old as the hills, one who avers must prove. I, am of the view that the plaintiff has miserably failed to shift the onus of proof casted upon the plaintiff.
CS DJ ADJ No. 16663/2016 Page No. 56/60109. Alas! The plaintiff has miserably failed to prove his case and his entitlement for damages.
110. Lastly, I would like to observe a vital fact about the conduct of the plaintiff. The plaintiff had orally argued that his suit was within the prescribed period of 3 (three) years. However, nowhere in the plaint did the plaintiff disclose that after his superannuation, he worked with the defendant No. 1 for a period of 2(two) years. The said fact has been urged by the defendants in their written statement.
111. The plaintiff's claim against the defendant is on the basis of a tortious liability and a 'tort' is discharged either by waiver, release and/or acquiescence. Waiver is the abandonment of a right which normally everybody is at liberty to waive. A waiver is nothing until it amounts to release. It signifies nothing more than an intention not to insist upon the right. Waiver must be an intentional act done with full knowledge. The three components of waiver are - some distinct act ought to be done to constitute a waiver; must be intentional and must be done with knowledge.
112. Whereas, a release involves giving up or discharging a right of action which a person has or may have against another person. A release executed under a mistake, in ignorance of one's rights or obtained by fraud is not valid.
113. Where a person, who knows that he is entitled to enforce a right, neglects to do so, for a considerable length of time, it may be inferred that he has waived or abandoned his right of action. Acquiescence relates to inaction during the performance of the act, laches relate to CS DJ ADJ No. 16663/2016 Page No. 57/60 delay after the act is done. Direct acquiescence takes away a right of action.
114. In the case at hand, the plaintiff's argument that his suit is based upon the judgment/order dated 05.02.2010 passed by the Hon'ble CAT wherein it has been held that the plaintiff has been wronged by the defendant Nos. 1 and 2, does not take the case any far, as not only the plaintiff acquiesced his right to sue by joining the services of the defendant No. 1 after his superannuation but also he worked with defendant No. 1 without any grievance.
115. The conduct of any party to a suit or proceeding in reference to such suit or proceeding or in reference to any fact in issue therein or any relevant fact and conduct of such person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact.
116. The conduct of the plaintiff is res ipsa loquitur. The conduct of the plaintiff is not forthcoming, as no averment with regard to him having worked, as a consultant with the defendant No. 1 for a term of 2 years post his superannuation has been averred in the plaint. Though, I have held in the preceding paragraphs of this judgment that the suit preferred by the plaintiff is time barred but I would like to add that the present suit has been filed by the plaintiff on the last day of the third year from the date of the Hon'ble CAT's order dated 05.02.2010 i.e. 04.02.2013 and that too after the expiry of his extended term of 2 (two) years with the defendant No. 1.
117. Therefore, I hold that the plaintiff has failed to prove that he CS DJ ADJ No. 16663/2016 Page No. 58/60 was singled out and maliciously prosecuted by the defendants and resultant of the alleged acts of omission and commission suffered damages.
118. In view of the above observations and discussions in the preceding paragraphs, not only the plaintiff's suit is barred by limitation and for want of territorial jurisdiction but also the same is devoid of any merits. The issue No. 1 is accordingly decided against the plaintiff and in favour of the defendants.
Issue No. 2Whether the plaintiff is entitled to any pendente lite and future interest, if any, at what rate?
119. Though the culled-out issue No. 2 does not specifically state on whom the onus to prove lies but going by the dictum that one who avers must prove, the onus to prove issue No. 2 is upon the plaintiff.
120. In view of the decision in issue No. 1, the plaintiff is not held to recover any damages from the defendants, I hold and find that the plaintiff is not entitled for any pendente lite interest and future interest @18%p.a. and the issue No. 2 is accordingly decided against the plaintiff.
Relief
121. In view of the above observations and findings, I do not find the plaintiff either to be entitled to a decree of damages to the tune of ₹20,00,000/- (Rupees Twenty lakhs only) or to pendente lite interest and future interest @ 18%p.a. on the amount of ₹20,00,000/- (Rupees Twenty lakhs only) and the suit preferred by the plaintiff against the CS DJ ADJ No. 16663/2016 Page No. 59/60 defendants is dismissed. All interim applications, if any, are dismissed as infructuous. No order to costs. Decree sheet be prepared, accordingly.
122. File be consigned to record room only after due compliance and necessary action, as per Rules. Digitally signed by HARGURVARINDER HARGURVARINDER SINGH JAGGI SINGH JAGGI Date: 2020.01.09 16:29:06 +0530 Pronounced in the open Court (Hargurvarinder Singh Jaggi) on January 08, 2020 Addl. District Judge-02 South West District Dwarka Courts Complex, Delhi CS DJ ADJ No. 16663/2016 Page No. 60/60