Delhi District Court
Om Prakash vs Dtc on 28 March, 2013
Om Prakash Vs DTC
IN THE COURT OF VIPLAV DABAS
CIVIL JUDGE-11 (CENTRAL) : DELHI
Civil Suit No. : 440/12
Unique Case ID No : 02401RC0768882006
In the matter of:
Sh. Om Prakash
S/o Sh. Todar Mal,
R/o Village & Post Office Rai,
Tehsil & District Sonepat,
Haryana .............. Plaintiff
Versus
1. Delhi Transport Corporation
Government of N.C.T of Delhi.
Through, the Manager Personal
I.P.Estate
New Delhi
2. Depot Manager
(DTC Government of NCT of Delhi)
B.B Marg, Depot-II,
Delhi-110069 ............ Defendant
Date of institution of the Suit : 01.09.2006
Date on which order was reserved : 28.03.2013
Date of decision : 28.03.2013
SUIT FOR MANDATORY INJUNCTION
JUDGMENT
1) Present suit was filed in the year 2006 seeking mandatory injunction in favour of plaintiff and against the defendant thereby directing the defendant to pay/ release the incentive to the plaintiff for all working days from 08.04.2003 till 28.02.2006 at rate of Rs. 50/- per day.
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2) It is averred in the plaint that on 06.03.1998, the plaintiff had been promoted to the post of Vehicle Examiner through I.C.Schedule PT No.12633 and B.No.4018 from the post of bus driver vide circular no. PLD III(V.E) 98/355 dated 23.01.1998 and plaintiff performed his duty as vehicle examiner from 06.03.1998 till 07.04.2003 but as per the circular no. PLD III(driving)/03/605 dated 14.02.2004 plaintiff had been deputed to work as driver since 08.04.2003 till the retirement i.e 28.02.2006 and it had been announced and declared that the willing employees would get an incentive of Rs. 50/- per day inspite of all benefits and facilities of previous post. That the plaintiff is duly entitled for getting the incentive of Rs. 50/- per day for all working days from 08.04.2003 to 28.02.2006. That the plaintiff sent a legal notice dated 16.09.2005 through registered AD and UPC which was duly served upon the defendant. That the cause of action arose in favour of the plaintiff and against the defendant on 08.04.2003.
3) It is averred in the written statement filed on behalf of defendant that the suit of the plaintiff is barred by limitation and is liable to be rejected u/o 7 rule 11 CPC. That in the present case, the plaintiff has not at all furnished an affidavit verifying the pleadings and the averments made in the plaint. That the plaintiff has not approached this Hon'ble Court with clean hands and has concealed the material facts from this Hon'ble Court as vide office memo no. III(V.E)/98/769 dated 03.03.98 issued under the signatures of J.R.Rana Deputy Manager signed on 02.03.1998, wherein the name of the plaintiff appears at serial no. 81, it was informed to the plaintiff and other drivers, that in furtherance to this office circular no. PLD-II-III(V.E)/98/355 dated 23.01.1998, that the drivers who were designated as vehicle examiners w.e.f 06.03.1998 have been designated as such on the terms and conditions mentioned below:-
i) They will be entitled to get allowance @ Rs. 25/- per month.
ii) They will perform any of the following duties:-
a) Inspection and examination of vehicles being taken out of the depot and vehicles in shedding in the depot.2/9
Om Prakash Vs DTC
b) Duties relating to the training of the new drivers in the training school.
c) They will be required to do driving and other duties laid down for driver if required to do so by the officer under whom they are working. They will not be having any separate seniority list.
iii) The allowance of Rs. 25/- per month will be payable subject to the following conditions:-
a) It will be paid to only those vehicle examiners who have been deputed for performing any or all the duties referred above.
b) ......................................................................................................
4) That as per letter no. PLD III(V.E) 98/769 dated 03.03.1998, the vehicle examiners were entitled to get Rs. 25 per month and were also covered in the category of the drivers as they were duty bound to perform duty of drivers. As per the PLD circulated vide no. PLD III(driving) 03/605 dated 14.02.2003, it was decided to depute willing employees working in other category to perform the duty of Driver in lieu of their own duty who have heavy driving license with P.S.V endorsement so as to avoid loss of revenue presently being incurred due to non-
availability of drivers and such employees were to be granted an incentive of Rs. 50/ per day. As such the plaintiff is not entitled for getting the incentive of Rs. 50/- per day under the order/ circular no. PLD III(Driving) 03/605 dated 14.02.2003 because he was already duty bound to perform the duty of driver being a vehicle examiner.
5) It is further averred that the alleged demand notice dated 16.09.2005 was false, vague and untenable and that the plaintiff was duly informed that the vehicle examiners were not entitled for incentive of Rs. 50/- vide letters no. BBMO II/FFC/MS/05/2794 dated 22.11.2005 and PLD III/Driver/06/363 dated 07.02.2006 mentioning that the plaintiff is not entitled for such incentive.
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6) It is denied that the suit of the plaintiff is without any cause of action and any cause of action has arisen to the plaintiff against the defendant for the present suit.
7) On the basis of the pleadings of the parties following issues were framed on 03.11.2009:-
1) Whether the plaintiff is entitled to relief of mandatory injunction directing the defendant to release the incentive to plaintiff for working days from 08.04.2003 to 28.02.2006? OPP
2) Whether the suit of plaintiff is barred by limitation and liable to be rejected under order 7 rule 11 CPC?OPD
3) Whether the plaintiff has concealed material facts from the court?OPD
4) Relief.
8) Plaintiff has examined two witnesses as PW-1, Sh. Ashok Kumar & PW-2, Sh. Pinnu Lal to establish his case who were duly examined, cross- examined by Ld. Counsel for the defendant and defendant has examined one witness as DW-1, Sh. Balbir Singh Chauhan who was duly cross- examined by Ld. Counsel for the plaintiff.
9) I have heard the final arguments of Ld. Counsels for both the parties and perused the record carefully.
10) Issue wise findings of this court are as follows:-
Issue No.1 Whether the plaintiff is entitled to relief of mandatory injunction directing the defendant to release the incentive to 4/9 Om Prakash Vs DTC plaintiff for working days from 08.04.2003 to 28.02.2006? OPP.
The PW-1 deposed by way of affidavit EX.PW-1/A that the plaintiff was promoted on 06.03.1998 to the post of vehicle examiner vide PLD-III(V.E)98/769 dated 03.03.1998 EX. PW-1/3 and continued to work as vehicle examiner from 06.03.1998 till 07.04.2003. It is further deposed that the plaintiff was made to work as driver in order to meet the need of more drivers pursuant to circular no.
PLD-III(Driver) 03/605 dated 14.02.2004, EX. PW-1/4 vide which willing employees working on other posts except as drivers were made to perform the duty of drivers in lieu of their own duties who were further entitled to an incentive of Rs. 50/- per day inspite of all benefits attached to preivous post. PW-1 stated further in the affidavit that the plaintiff is also entitled to incentive of Rs. 50/- per day like other employees who joined driving under the aforesaid order from different posts/ categories and who had received the said incentive from which the plaintiff has been deprived of.
In the cross examination, the PW-1 admitted that his father was appointed as vehicle examiner vide circular dated 03.03.1998 Ex.PW-2/1, that the vehicle examiner was required to do driving and other duties laid down for driver as per clause(2c) of the said circular, if instructed to do so by his employer, that the circular Ex. PW-2/1 was applicable to his father as his father was a vehicle examiner. PW-1 admitted to know both Hindi and English language as well as to have understood the documents filed on record. However, with respect to Ex. PW-2/3 wherein it is written that employees working in other categories were to perform the duty of driver in lieu of their own duties, the PW-1 showed ignorance about its contents stating that he can not understand the same though the same is also in English. It shows that the PW-1 deliberately avoided the question regarding the contents of this EX.PW-2/3 as the same would have gone against him and would have established that the plaintiff does not fall under the category eligible for incentive of Rs. 50 per day. Furthermore, in the Ex. PW-2/1 notification, it is clearly stated that the plaintiff was to perform the duty of drivers 5/9 Om Prakash Vs DTC as a part of his duty as vehicle examiner. Perusal of the said document reveals that the plaintiff was entitled to receive Rs 25 per month which the defendant had already been paying to the plaintiff.
Witness namely Sh. Pinnu Lal PW-2, summoned on behalf of plaintiff from DTC proved the various circulars which are exhibited as PW-2/1, PW-2/2, PW- 2/3 and PW-2/4. Perusal of notification Ex. PW-2/1 reveals that the plaintiff was duty bound to perform the driving job also as and when directed to do so by his employer by virtue of his appointment as a vehicle examiner and that for all or any of the duties required to be done as per the clauses 2(a), 2(b) and 2(c) of the said circular, the plaintiff was entitled to incentive of Rs. 25 per month. Furthermore, the fact that the notification EX. PW-2/1 was applicable to the plaintiff has been admitted by PW-1 also. From this admission and the contents of duly proved notification Ex. PW-2/1, it stands established that plaintiff was covered under notification Ex. PW-2/1 and was made to act as driver also under this notification which in turn proves that plaintiff was not covered under notification Ex. PW-2/3 wherein the incentive of Rs. 50 per day was to be paid to employees working as drivers in lieu of their own duties. Plaintiff was given ample opportunity to prove his case but no witness was brought to depose and prove as to how plaintiff was covered under notification.Ex. PW-2/3 perusal of which clearly shows that the said notification is applicable to employees of other categories who were not doing duties of drivers whereas the plaintiff was duty bound pursuant to notification Ex. PW-2/1 vide which plaintiff was made a vehicle examiner to act as driver even prior to coming into force the notication Ex. PW-2/3. Mere denial that Ex. PW-2/3 is not applicable to plaintiff is not sufficient as the same is no evidence and can not be considered in the absence of any other cogent material as well as the documents filed by the defendant.
The defendant put suggestions to the PW-1 that his father was not entitled to incentive of Rs. 50 per day because his father was already doing the duty of driver while working as vehicle examiner and that only those employees were entitled to incentive of Rs. 50/- per day who belong to other categories though PW-1 denied the said suggestions. In tune with the defence brought out in 6/9 Om Prakash Vs DTC written statement and put to PW-1 by way of suggestions, the defence witness deposed firmly in his evidentary affidavit that the plaintiff was not entitled to incentives of Rs. 50/- per day as he was appointed as vehicle examiner vide notification EX.PW-2/1 which comes under the category of drivers thereby bringing the plaintiff beyond the purview of notification EX.PW-2/3 whereby employees working in other categories were given the duty of drivers in lieu of their own duty who were entitled to incentive of Rs. 50/- per day. The plaintiff did not challenge the defendant's version as stated in the affidavit as even a specfic suggestion to negate the same was not put to the defendant's witness. Thus the defence version has gone unrebutted which amounts to admission of defendant's case by the plaintiff and thus falsifies the plaintiff's case. In view of aforesaid discussion, it is clear that plaintiff has failed to establish that he is entitled to incentive of Rs. 50/- per day. Thus, this issue is decided in favour of defendant and against the plaintiff.
Issue No.2 Whether the suit of plaintiff is barred by limitation and liable to be rejected under order 7 rule 11 CPC?OPD As per the plaint the cause of action arose on 08.04.2003 when the plaintiff was deputed as driver under relevant notification and further arose from time to time when the defendant did not release the incentive which is still continuing. It is admitted by the defendant vide para 7 of affidavit that the plaintiff was duly informed vide letter dated 22.11.2005 and 07.02.2006 that he is not entitled to any such incentive. It shows that cause of action was existing even on 07.02.2006. Limitation for filing suit of mandatory injunction i.e three years and from the plaint it is clear that the suit was filed on 01.09.2006 which is well within the limitation period. Thus, this issue is decided in favour of the plaintiff and against the defendant.
7/9Om Prakash Vs DTC Issue No.3 Whether the plaintiff has concealed material facts from the court? OPD.
In tune with para 5 of the preliminary objections, the defendant has firmly deposed by way of affidavit Ex. DW-1/A that the plaintiff has concealed the material facts from this Hon'ble Court as vide office memo no. III(V.E)/98/769 dated 03.03.98 issued under the signatures of J.R.Rana Deputy Manager signed on 02.03.1998, wherein the name of the plaintiff appears at serial no. 81, it was informed to the plaintiff and other drivers, that in furtherance to this office circular no. PLD-II-III(V.E)/98/355 dated 23.01.1998, that the drivers who were designated as vehicle examiners w.e.f 06.03.1998 have been designated as such on the terms and conditions mentioned below:-
i) They will be entitled to get allowance @ Rs. 25/- per month.
ii) They will perform any of the following duties:-
a) Inspection and examination of vehicles being taken out of the depot and vehicles in shedding in the depot.
b) Duties relating to the training of the new drivers in the training school.
c) They will be required to do driving and other duties laid down for driver if required to do so by the officer under whom they are working. They will not be having any separate seniority list.
iii) The allowance of Rs. 25/- per month will be payable subject to the following conditions:-
a) It will be paid to only those vehicle examiners who have been deputed for performing any or all the duties referred above.
b) .................................................................................................
Perusal of plaint reveals that the plaintiff himself relied upon the circular 8/9 Om Prakash Vs DTC PLD No. III(V.E) 98/355 dated 23.01.1998 by virtue of which he was promoted to the post of vehicle examiner. Furthermore, during the cross examination the plaintiff witness PW-1 has admitted that his father was appointed as vehicle examiner vide the circular EX. PW-2/1 dated 03.03.1998 as well as the fact that as per the said circular vehicle examiner will be required to perform driving and other duties as laid down for the driver as & when required to do so by the officer under whom they are working.
Furthermore, in the cross examination of the defendant's witness DW-1, even a suggestion to negate the aforesaid deposition regarding concealment of the said fact was not put which amounts to admission of this deposition on the part of the plaintiff. Moreover, it is unbelievable that the plaintiff who was promoted as vehicle examiner on 06.03.1998 i.e after publication of the notification Ex. PW-2/1 dated 03.03.1998 is not aware of the terms and conditions mentioned in Ex. PW-2/1 vide which he was finally designated as vehicle examiner.
In these circumstances, it can be inferred that the plaintiff has concealed the knowledge of notification Ex.PW-1/2 vide which he was appointed as vehicle examiner as disclosing the same would have gone against him. Thus this issue is decided in favour of the defendant and against the plaintiff.
Issue No.4 Relief In view of the decisions on the aforesaid issues, the suit of the plaintiff is dismissed. Parties are left to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
Announced in the open court (VIPLAV DABAS)
today i.e on 28.03.2013 CJ-11/CENTRAL/DELHI
28.03.2013
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