Delhi District Court
R.K. Nimoria vs Union Of India on 26 April, 2018
IN THE COURT OF MS. SURYA MALIK GROVER
ADDITIONAL DISTRICT JUDGE-01 (SOUTH EAST)
SAKET COURTS, NEW DELHI
10-YEAR OLD CASE
CS - 616 /2017
R.K. Nimoria, Dy. Commandant (Retd.)
son of Late Sh. B.R.Nimoria
R/o B-I/360, Dr. Ambedkar Nagar
Sector-IV, New Delhi-62 ......Plaintiff
Versus
1. Union of India
Through Home Secretary,
Ministry of Home Affairs
New Delhi
2. Director General (BSF),
Border Security Force
Block-10, CGO Complex
Lodhi Road,
New Delhi-110003.
.......Defendants
Date of Institution of suit : 19.09.2006
Date of Reserving of judgment : 22.03.2018
Date of Judgment : 26.04.2018
CS no. 616/17 Page 1 of 19
JUDGMENT
1 By virtue of the instant judgment, the present suit for recovery of damages, filed in year 2006 is being disposed of almost after about 12 years of its institution.
2 Plaintiff's case Brief facts relevant to the disposal of the suit are summarized as under:-
2.1 Plaintiff was appointed as Sub Inspector with Border Security Force (in short 'BSF') on 17.05.1968.
2.2 After training, he was posted at Hazari Bagh with 103 Battalion between 1970 to 1975. It is claimed by the plaintiff that during this period, certain promotions were given to officers who joined after him and without his knowledge, he was deprived of his legitimate right of promotion without any rhyme or reason.
2.3 The plaintiff got retired on 30.04.1988 as Assistant Commandant.CS no. 616/17 Page 2 of 19
2.4 The plaintiff sent a representation on 18.04.1987 stating that he had been deprived of three promotions during his service tenure. However, the same was declined.
2.5 Subsequently, plaintiff was notionally promoted to post of Assistant Commandant w.e.f. 01.04.1987 and further as Dy. Commandant w.e.f. 16.12.1998 vide order dated 24.03.1999.
2.6 It is alleged that in the Writ Petition no. 7639/2001, defendant no.1 admitted their lapses before the Division Bench, which was recorded in order dated 23.02.2005. The said writ was disposed of on 19.12.2005, directing the defendant no.1 to dispose of representation dated 18.04.1987.
2.7 Subsequently, the defendant no.1 vide order dated 05.05.2006 rejected representation filed by the plaintiff dated 18.04.1987 stating that plaintiff was not entitled to any benefit in the matter of promotion or seniority or for any additional service / financial benefits.
2.8 Plaintiff filed another writ petition before Hon'ble High Court WP (C) No. 1519/2006 which was disposed of on 19.05.2011 permitting him to file representation before the authorities raising the pleas as allowed.CS no. 616/17 Page 3 of 19
2.9 Yet another round of litigation was carried on by the plaintiff before the Hon'ble High Court as plaintiff filed a WP(C) no. 550/2012 praying issuance of writ of mandamus directing defendants to consider and promote petitioner to the rank of Inspector w.e.f. 16.10.1971 and further orders with regard to his future promotion to further posts on due dates when similarly situated employees were considered and to refix his seniority and grant all consequential benefits. Further, plaintiff also prayed for setting aside of order dated 11.10.2011 passed by DIG, BSF. The said writ petition was dismissed by the Hon'ble High Court vide judgment dated 24.09.2013.
2.10 It is alleged that as plaintiff was entitled for three promotions during his service tenure i.e. Dy. Commandant, Second In Commandant and Commandant, he suffered monetary/ financial loss as well as non- monetary losses i.e. mental agony, trauma, humiliation and embarrassment during time of his service on account of said discrimination.
2.11 Hence, present suit seeking recovery of Rs. 1 crore as damages has been filed against the defendants along with pendente lite and future interest @ 18% per annum from date of filing of suit till realization.
CS no. 616/17 Page 4 of 193 Defendants' Version Defendants have resisted the suit taking following defence:
3.1 At the outset, preliminary objectons were taken i.e. firstly, there is no cause of action for filing the present suit as denial of promotion does not give a valid cause of action to the plaintiff for seeking damages;
secondly, the suit is barred by law of limitation as the cause of action accrued to the plaintiff during the year 1971 to 1987 and the suit has been instituted in the year 2006 and further, that filing of writ petition / representation / sending legal notice does not extend period of limitation; thirdly, suit is bad for mis-joinder of cause of action.
3.2 Further in reply on merits, all averments with regard to discrimination against the plaintiff at the time of promotion have been denied as false and incorrect. It is stated that as per rules, seniority from Sub Inspector to Subedar was to be maintained state wise (sector wise) with reference to existing vacancies in the concerned frontiers. Further, it is averred that no DPC for promotion of SIs to the rank of Inspectors was conducted by Training Institution 1970 till 1975. As such, the plaintiff could not get promotion due to lack of vacancies in his Frontiers / Sectors and hence, he was not informed or called for attending the said DPCs.
CS no. 616/17 Page 5 of 193.3 Further, it is denied that junior batch mates of the plaintiff were allowed to appear in list E-test and categorically stated that no promotion was conducted by the training institution, Hazari Bagh where plaintiff was posted.
3.4 Thereafter, BSF Senior Rules 1975 were followed and promotion was to be made from SI to Inspector under the same. It is further stated that plaintiff was considered for empanellment by the DPC held on 15.09.1975 but graded as 'unfit' due to inadequate confidential record of service and petitioner was finally promoted to the rank of Inspector w.e.f. 06.03.1978.
3.5 It is denied that Sh. H. Rao had done discriminatory behaviour against the plaintiff so that he could not be promoted on time and further objected that plaintiff should have impleaded him as a party in his individual capacity.
3.6 It is averred that plaintiff was considered for promotion by DPC held on 30.06.1987 and accordingly promoted to the rank of Asst. Commandant w.e.f. 01.04.1988. After his retirement, his case was re- examined when error in DPC dated 11/13.06.1986 was detected and accordingly, he was given notional promotion to the rank of Deputy CS no. 616/17 Page 6 of 19 Commandant w.e.f. 13.12.1993 and Asst. Commandant w.e.f. 01.04.1987 and all consequential benefits for the period of notional promotions. As such, petitioner was never superseded or lost his seniority.
3.7 It is stated that representation dated 18.04.1987 has been examined and rejected by the competent authority and seniority of the plaintiff as Inspector as on 06.03.1978 was correct, hence, there was no merit in his representation.
3.8 It was further stated that plaintiff had been allowed to draw arrears of pay and allowances w.e.f. 24.03.2005 for the period of notional promotion to the tune of Rs.74,472/-.
3.9 Further, as he was promoted to rank of Dy. Commandant only on 13.02.1993, plaintiff was not found eligible for promotion as Second-In- Commandant in the year 1994 and Commandant in 1996.
3.10 All other averments of any type of humiliation or embarrassment to the petitioner or any kind of pecuniary loss to him to the tune of Rs. 29, 65,777/- has been denied as false and baseless. It is further denied that there has been any physical agony, pain, hardship or harassment caused by the defendant no.1 to the plaintiff on account of withholding CS no. 616/17 Page 7 of 19 promotion of the plaintiff and it has been prayed that case may be dismissed as meritless.
4 Rejoinder 4.1 Rejoinder was filed by the plaintiff denying all averments made by the defendants as false and incorrect and reiterated the averments made in the plaint categorically asserting that as plaintiff was denied timely promotion, he faced extreme humiliation and loss of reputation due to the said act of the defendants.
5 Issues From the pleadings and documents on record, following issues were framed on 29.01.2010 :
(i) Whether the plaintiff is entitled to a decree of Rs. 1 crore and, if so, at what rate of interest? OPP
(ii) Whether the suit is within limitation? OPP
(iii) Whether the suit is bad for mis-joinder of cause of action? OPD
(iv) Relief
6 Evidence led by the Parties 6.1 The plaintiff examined himself as a PW1 and also exhibited his affidavit of evidence as Ex PW1/X. The plaintiff did not tender any CS no. 616/17 Page 8 of 19 documents in evidence and placed reliance only on the documents admitted by him at the stage of admission / denial as Ex.D1 to Ex.D9 as under:
D1 Board proceedings of DPC List 'E' in respect of V candidates of Trg Instns / Reserve Bns / Arty Regt held during 1971 at TC&S BSF Hazribagh D2 Board proceedings of DPC List 'E' in respect of V candidates of Trg Instns / Reserve Bns / Arty Regt held during 1972 at TC&S BSF Hazribagh D3 Board proceedings of DPC List 'E' in respect of VIII candidates of Rajasthan & Gujarat, Punjab, NW Ftr Srinagar and Shillong Ftr held during 1971 to 1974 at respective Ftrs Trg Instns / Reserve Bns / Arty Regt held during 1972 at TC&S BSF Hazribagh D4 Empanelment list of candidates including the petitioner XII who qualified DPC List 'E' held during 1976 D5 First empanelment List of qualified candidates of DPC XIII List 'E' held during 1976 D6 FHQ BSF New Delhi Signal No. R/3414 dated XIV 20.02.1978 vide which the petitioner cleared for promotion to the rank of Inspector D7 Hon'ble High Court Delhi Judgment dated 19.12.2005 XVIII vide which directed to dispose off the WP filed by the petitioner in accordance with the judgment dated 27. 09.2002 in the case of Sh. B.S. Naruka & Ors.
D8 Representation made by the petitioner dated XIX 18.04.1987 D9 Representation made by the petitioner dated XX 16.01.2006 CS no. 616/17 Page 9 of 19 6.2 In rebuttal defendants examined DW1 Sh. Pale Ram working as Inspector (ministerial) in Pers II Section, Headquarters Directorate General, BSF and has filed office noting of his authorization in his favour as Ex.DW1/1 (OSR) in support of his evidentiary affidavit.
7 Decision & Reasoning I have heard counsels for the parties and perused the record carefully. My issue wise findings are as under :
7.1 Issue no. 3
(iii) Whether the suit is bad for mis-joinder of cause of action? OPD 7.1.1 The onus to prove this issue was upon the defendant. No evidence has been led by defendants in this regard. However, Ld. Counsel for defendants has argued that plaintiff has mixed up different causes of action related to his denial of promotion in the years 1971 to 1987 and therefore, the suit is bad for mis-joinder of cause of action. Further, denial of promotion can not result in a suit for recovery of damages hence, suit is bad in law.
7.1.2 In rebuttal, it has been argued by Ld. Counsel for plaintiff that as CS no. 616/17 Page 10 of 19 he was denied timely promotion, plaintiff suffered monetary as well as non-monetary losses and the various dates and events which have led to denial of promotion have been averred in the plaint, from which relief of recovery of damages has emanated. As such, the argument that there was mis-joinder of cause of action is totally untenable in law.
7.1.3 The expression "cause of action" has acquired a judicially-settled meaning. In the restricted sense cause of action meanse the 'circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Comendiously the expression means every fact which it would be necessary for the plaintiff to prove, it traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished front every piece of evidence which is necessary to prove each fact, comprises in cause of action.
7.1.4 On perusal of the plaint, I am satisfied that plaintiff has been able to bring out a valid and legally subsisting cause of action i.e. violation of right of timely promotion and the relief for recovery of damages has been sought on the basis of the same. Hence, the argument of the defendants of misjoinder of cause of action has no merits.
CS no. 616/17 Page 11 of 197.1.5 Accordingly, present issue stands decided in favour of the plaintiff and against the defendant.
7.2 Issue no. 2 Whether the suit is within limitation? OPP 7.2.1 The onus to prove issue no. 2 was upon the plaintiff.
7.2.2 Plaintiff has laid down in para no. 37 of the plaint as regards the date of accrual of cause of action that it arose in favour of plaintiff and against defendant on 22/23rd July, 1971 when plaintiff was denied opportunity to appear in 'E' List test. It again arose on 27, 28 and 29 th July, 1972 when 'E' List Promotion Test was held and plaintiff was not informed of the same. It again arose on 30, 31 January and 1 st February 1974 and again when plaintiff was not allowed to appear in 'E' List Examination Test and when his juniors were promoted to next higher rank by superseding the plaintiff. It again arose on 18.04.1987, 24.09.1987, 22.05.1998, 06.02.2001, 03.10.2001 when plaintiff made representations with defendants. Further, it arose on 19.12.2001 when plaintiff filed a writ petition bearing no. 7639/01 against defendants and when plaintiff was promoted notionally to the higher rank on 01.04.1987 and 13.02.1993. It again arose on 05.05.2006 when defendant dismissed CS no. 616/17 Page 12 of 19 the representation of 18.04.1987 of plaintiff. It again arose on 07.06.2006 when plaintiff's counsel sent a legal notice dated 05.06.2006 to defendant no. 2 and same is still continuing.
7.2.3 From perusal of the same, it appears that plaintiff has approached the Court with grievance that he was not promoted timely and that he made several representations to the defendants and also approached the superior course for issuance of directions in this regard after his retirement. Finally, plaintiff was promoted notionally to the higher rank vide order dated 16.12.1998 and 24.03.1999. Ld. Counsel for plaintiff has argued that cause of action arose in his favour again on 05.05.2006 when defendant dismissed his representation and further on 07.06.2006 when his counsel sent a legal notice to the defendant no.2.
7.2.4 In rebuttal, it has been argued that the suit is hopelessly time barred as the plaintiff has not made any specific/ categorical averments as to the date when he suffered harassment/ loss of reputation in the society and therefore, plaintiff having filed the suit after many years of denial of promotion, orders of notional promotion and his retirement from service, suit is liable to be dismissed straightaway It is further argued that limitation does not get extended on dismissal of representation or pendency of a civil writ petition or by mere sending of a legal notice.
CS no. 616/17 Page 13 of 197.2.5 On perusal of plaint, I find that plaint is completely silent as regards the exact date when the plaintiff suffered pecuniary and non pecuniary losses and humiliation / embarrassment / mental agony / loss of reputation etc. as averred in para 35 of his plaint. As such, the plaint is totally vague as regards the alleged damage to his reputation and hence, limitation cannot be calculated on the basis of said averments in the plaint.
7.2.6 Assuming for the sake of arguments that the aforesaid losses as claimed to be suffered were between period 1971 till 1987 i.e. during his service tenure, plaintiff should have approached the Court within 3 years of his suffering the aforesaid losses or at least within 3 years of his retirement in 1988, when he did not get the expected benefits.
7.2.7 Last but not the least, assuming that plaintiff had made certain representations to the defendant seeking notional promotion, which were finally disposed of in his favour on 24.03.1999, the cause of action can be said to have finally accrued in favour of the plaintiff i.e. when he was found to be eligible for promotion from an earlier date, he should have approached the Court maximum by 24.03.2002 i.e. within 3 years of such an order. The present suit has been instituted in the year 2006, hence CS no. 616/17 Page 14 of 19 time-barred.
7.2.8 As such, the issue stands decided in favour of defendants and against plaintiff and the suit is held to be time barred.
7.3 Issue no. 1
(i) Whether the plaintiff is entitled to a decree of Rs. 1 crore and, if so, at what rate of interest? OPP 7.3.1 The onus to prove this issue was upon the plaintiff. Plaintiff has alleged in para no. 35 of his plaint that in view of denial of promotion, plaintiff suffered unexplainable humiliation, embarrassment in the eyes of his relatives and colleagues, mental agony, loss of reputation and other pecuniary and non-pecuniary losses. Further, plaintiff suffered pecuniary losses of Rs. 11,02,669/- in terms of pay and allowances which he had drawn during period of his service as Sub Inspector, Inspector and Asst. Commandant and had he been promoted timely. Further, plaintiff has quantified non-pecuniary losses to the tune of Rs. 88,97,331/- which includes losses towards mental and physical agony, pain etc. to the tune of Rs. 29,65,777, towards loss of reputation as Rs. 29,65,777/- and finally monetary loss on account of litigation and other miscellaneous expenses as Rs. 29,65,777. As such, the total amount of pecuniary and non CS no. 616/17 Page 15 of 19 pecuniary loss of Rs. One crore has been claimed by the plaintiff.
7.3.2 Same has been totally denied by the defendant averring that no grounds are made out for granting either pecuniary or non pecuniary losses for want of categorical averments in this regard as well as any oral or documentary evidence.
7.3.3 At the outset, on perusal of the plaint, I find that para no. 35 of the plaint is extremely vague about the humiliation, embarrassment in the eyes of relatives and colleagues, mental agony or loss of reputation of plaintiff on account of delay in his promotion. Damages can not be granted to plaintiff at his whims and fancies merely by writing a numerical figure of losses suffered by him. In other words, despite the fact that the plaintiff's representations for promotion had been allowed to the extent that he had been given notional promotion to the rank of Inspector and Asst. Commandant, same would not lead to an obvious inference that plaintiff shall be granted damages for monetary and non monetary losses suffered by him until he is able to specifically establish the same in clear and unequivocal terms.
7.3.4 In his evidentiary affidavit also, plaintiff has failed to make any specific averment on oath that he had faced any particular instance of CS no. 616/17 Page 16 of 19 humiliation / embarrassment / loss of reputation due to his delayed promotion. Despite no specific averments in this regard, counsel for defendant was cautious enough and put across questions to the plaintiff as to whether he had alleged in plaint against his Commandant or DIG, Hazari Bagh, that they had spoilt his career, which has been denied by the plaintiff. Further, plaintiff has also admitted in his cross-examination dated 12.04.2013 that on 29.05.2001, his request for promotion had been declined and thereafter, he filed a writ before the Hon'ble High Court and on dismissal of the same on 19.12.2005, the present suit was filed. Plaintiff has further admitted that he had taken no legal measures for recovery of damages during the period 1998 till the filing of the suit.
7.3.5 Even though plaintiff has alleged that his senior officers were responsible for delay in his promotion and that he had lodged written complaint against them, it is a matter of record that neither he has filed any complaint against any of the said officers nor impleaded them as parties. Plaintiff has also denied that he has quantified damages as per his imagination or that he has over projected his self assessment in the suit.
7.3.6 In light of the entire oral and documentary evidence on record, I am of the considered opinion that plaintiff has failed miserably to discharge the onus placed upon him that he had suffered damages to the tune of Rs. 1 crore on account of delay in his promotion.
CS no. 616/17 Page 17 of 197.3.7 Having observed as above, no purpose would be served by discussing the evidence as recorded by the defendants. Suffice it is to say that parties have already faced three rounds of litigations and all relevant issues/ pleas have already been heard and finally decided by the Hon'ble High Court and hence, this Court is not empowered to give any findings in view of rule of res judicata.
7.3.8 Accordingly, issue no.1 stands decided in favour of defendant and against the plaintiff.
Relief
8. In view of decision of the issues as discussed above, the suit of the plaintiff is liable to be dismissed both on grounds of limitation as well as on merits.
9. So far as application u/s 340 CPC is concerned, as the suit has been dismissed for want of evidence, application u/s 340 CPC is / liable to be dismissed as prima facie nothing is made out against defendants.
10. Accordingly, suit is dismissed. Decreesheet be prepared accordingly. No order as to costs.
CS no. 616/17 Page 18 of 1911. File be consigned to Record Room.
Announced in the open (SURYA MALIK GROVER) Court on 26.04.2018. Additional District Judge 01(SE), Saket Courts, New Delhi. (ds) CS no. 616/17 Page 19 of 19