Delhi District Court
Ramji Rai vs Dr. Shubhadra Sharma on 29 January, 2024
DLST010037452016
In the Court of Sh. Munish Bansal,
Additional District Judge -03 (South District),
Saket Courts Complex, New Delhi.
CS No.: 8785/16
In the matter of :-
Sh. Ramji Rai,
S/o Late Sh. Vishwanath Prasad,
R/o T-7, Jagmag Apartment,
3rd Floor, near Fortis Hospital,
Kishangarh,
New Delhi-110017. .......Plaintiff
Versus
Dr. Shubhadra Sharma,
Additional Professor,
Department of Lab Medicines,
AIIMS, Ansari Nagar,
New Delhi.
Also at
A-75, Inderpuri,
Delhi- 110012. ......Defendant
Date of institution : 23.08.2016
Arguments heard on : 05.12.2023
Date of decision : 29.01.2024
CS/8785/2016 Page 1 of 23
JUDGMENT
1. Facts as epitomized in the plaint are that the Plaintiff is an employee of AIIMS, New Delhi where he was initially appointed on 01.11.1985 as Nursing Orderly and was subsequently appointed to the post of Technical Officer (Lab) and presently he is working on the same post in Department of Laboratory Medicine wherein he is posted since 1989. The Defendant is an Additional Professor in the Department of Lab Medicine and she was earlier appointed on 29.02.2016 (wrongly mentioned in plaint, correct date is 29.02.1996) on ad hoc for a period of 3 months. It is stated that the appointment of Defendant was done in contravention to certain administration norms against the dissent note of the then Head of Department and that Defendant is not even M.B.B.S doctor and that Dr. A.K. Mukhopadhyaya, also wrote a letter to the then Hon'ble Minister of Health and Family Welfare. It is alleged that in October, 2013, there was a sting operation and the Defendant in order to save her from all the allegations and to harass the Plaintiff, gave Plaintiff's name that sting operation was done at the direction of Plaintiff. The Plaintiff, however, clarified before the Committee that he had no involvement in the said sting and that his name has been wrongly given by the Defendant.
1.1 It is further alleged that on 01.04.2012, when Plaintiff gave correct picture before the Committee, the Defendant started harassing the Plaintiff by mentioning adverse comments in his ACR. It is stated that in the previous years ACR, the Plaintiff was awarded good grading and there was no adverse remarks given in any ACR. It is alleged that on 02.09.2013, Defendant being the Incharge, took signatures of number of staff members on false complaint against the Plaintiff, however, upon being aware that their signatures have been malafidely taken, they CS/8785/2016 Page 2 of 23 made a representation on 06.09.2013 and withdrew their signature on the complaint.
1.2 Thereafter, on 04.03.2014, the Defendant approached the higher authorities for transfer of Plaintiff and on the direction of Defendant, transfer order was issued to the Plaintiff. It is stated that normally the employees of AIIMS are not transferable but the Plaintiff was transferred to CRHS Project Ballabgarh, without there being any sanctioned post of Technical Officer (Lab). It is alleged that Defendant was in habit of coming late to the office inspite of several verbal as well as written instructions given to her from time to time to her and was issued Office Memorandum dated 09.04.2014 by the then Chief Administrative Officer wherein she was advised to adhere to duty or to take voluntary retirement owing to her ill health. It is stated that on 24.10.2013, residents of AIIMS wrote a letter to Director, AIIMS regarding story on reputed TV channels about Defendant.
1.3 It is further stated that Defendant developed malicious intentions against Plaintiff and she instructed junior staff not to address Plaintiff with respect and not to obey his instructions upon which the Plaintiff made a complaint dated 15.07.2013 to the Director, AIIMS regarding mis-management and non-cooperation of Defendant. A similar complaint was also made by one Vandeta Vasudev, Biochemist Scientist-3 against the Defendant on 19.11.2013 to Chairperson, Committee Laboratory, Medicines Affairs, AIIMS for harassing and creating disturbance in working atmosphere.
1.4 It is stated that being a Technical Assistant working in Haematology Section, the Plaintiff has to work overtime with compensatory offs in return of odd hours duties and many of the Plaintiff' colleagues have CS/8785/2016 Page 3 of 23 been availing such compensatory offs by HOD and Defendant. That Plaintiff was on his compensatory offs on 07.04.2010, 08.04.2010, 03.04.2010, 06.04.2010, 14.04.2010, 17.09.2010 and 23.11.2010 after having verbal promise from HOD, however, Plaintiff was marked absent for the above dates and marked without pay for the said period and could not get his pay for these offs.
1.5 It is further stated that Plaintiff was reporting to Defendant and was marked grading 'very good' for the year 2006-2007, 'good' for 2010-11 & 2011-12, however, after the sting operation in the year 2013, the Defendant developed malice against the Plaintiff which is reflected in the ACR of the Plaintiff. It is further stated that the Plaintiff had challenged his transfer orders to Ballabgarh before the Hon'ble Central Administrative Tribunal which allowed the O.A. and quashed and set aside the impugned order dated 04.03.2014. That due to malicious conduct of the Defendant, the plaintiff went into depression and remained admitted in AIIMS for few days and lost his health, wealth, mental peace and reputation.
On these grounds, the Plaintiff has claimed damages to the tune of Rs.7,00,000/- against the Defendant for the legal expenses incurred in filing O.A. before CAT, loss of health and mental peace, loss of reputation and loss of study of his children. Hence, this suit.
2. Written statement was filed on behalf of Defendant. It was objected that the suit of Plaintiff has been filed with malafide intention on false grounds and that no cause of action ever arose in favour of the Plaintiff and against the Defendant. It is stated that Plaintiff has failed to put on record the correct facts relating to present case. The selection of Defendant was proper and by due process of law as per AIIMS Act, AIIMS Rules & Regulations, which is not disputed. The present suit is just an attempt to CS/8785/2016 Page 4 of 23 extort money from the Defendant. It is stated that suit is bad for non-joinder for necessary party as AIIMS is a necessary party to the present suit. It is stated that suit is in violation of the provisions laid down in Order VI Rule 2 & 3 CPC and is liable to be dismissed.
2.1. On merits, it is denied that Plaintiff was working honestly and with good intention rather Plaintiff was found involved in work - place politics. It is denied that appointment of Defendant was done in contravention of certain administrative norms and against the dissent note of HOD. It is stated that Hon'ble High Court of Delhi gave a judgment in favour of Defendant herein and she got promotion after the decision. It is stated that at the time of the sting operation, the Plaintiff was supervisor of the lab and was unable to perform his duty properly. It is denied that the Defendant started harassing the Plaintiff by mentioning adverse entries in ACR of plaintiff, moreso the grading of Plaintiff in year 2009-2010 and 2012-2013 was also average. It is stated that the staff members themselves signed the complaint and later withdrew their signatures by their own decision and Defendant has never put any pressure on any person to do such act. It is stated that Defendant was not involved in transfer of Plaintiff rather Plaintiff himself wrote letter to higher authority in the year 2011 demanding his transfer. It is denied that Defendant was in the habit of coming late to office and that this factum has nothing to do with present suit and is stated just to make false and frivolous story. It is stated that as per the manual of AIIMS, if anyone works overtime, then he/she must be paid by the institution, whereas the Plaintiff took leaves on the given dates without informing to anyone and hence, the Plaintiff was marked without pay for those particular days. It is stated that grading of the Plaintiff since 2008 to 2013 was either good or average only. All other contents of the plaint were denied by the Defendant.
On these grounds, it is prayed that suit of the Plaintiff be dismissed.
CS/8785/2016 Page 5 of 233. Upon completion of pleadings, following issues were framed on 06.04.2017:-
1. Whether plaintiff is entitled for Rs.7,00,000/- on account of damages on account of malicious prosecution as prayed for? OPP
2. Whether no cause of action arose in favour of the plaintiff and against the defendant for filing the present suit? OPD
3. Whether the suit is liable to be dismissed for non-joinder of necessary party? OPD
4. Whether the suit is liable to be dismissed in violation of the provisions laid down in Order VI Rule 2 & 3 of CPC? OPP
5. Relief.
Thereafter, matter was fixed for Plaintiff's evidence.
4. The Plaintiff himself stepped in witness box as PW1 and tendered his evidence by way of affidavit Ex. PW1/A thereby deposing in consonance with the averments made in the plaint. He placed reliance on following documents:-
1. Copy of the letter dated 14.03.1996 and qualification sheet are Mark A and Mark B.
2. Copy of letter dated 22.12.2010 alongwith signatures of the staffs are Mark C (colly).
3. Copy of ACR is Mark D.
4. Copy of the said complaint is Mark E.
5. Copy of said complaint dated 19.11.2013 is Mark F.
6. Copy of the letters dated 06.09.2013 is Mark G and H.
7. Copy of letter dated 24.10.2013 is Mark I.
8. Copy of complaint dated 13.03.2014 is Mark J.
9. Copy of letter dated 04.03.2014 is Mark K.
10. Copy of the memo dated 09.04.2014 is Mark L.
11. Copy of letter dated 21.05.2014 is Mark M.
12. Copy of letter dated 30.12.2014 is Mark N.
13. Copy of application before the CAT is Mark O. CS/8785/2016 Page 6 of 23
14. Copy of letter/complaint dated 22.07.2014 is Mark P.
15. Copy of judgment/order dated 03.02.2015 is Mark Q
16. Copy of medical prescriptions of the plaintiff and his son are Mark R and S.
17. Copy of said result is Mark T. Pertinently, since originals of documents relied upon by the Plaintiff were not placed on record, documents mentioned as Ex. PW1/1 to Ex.
PW1/20 in affidavit of evidence were de-exhibited being copies. He was cross-examined at length by Ld. Counsel for the Defendant.
4.1. PW2 Sh. Lalit Oraon from ACR Cell, AIIMS produced ACR for the years 2010-2011 and 2011-2012 of Plaintiff Ex. PW2/1 (colly) (OSR) and also produced office memorandum no. F.No. 4-32/2013/ACR Cell/ Estt.-I dated 07.01.2014 Ex. PW2/2 (OSR). Counsel for the Defendant opted not to cross-examine this witness.
4.2. PW2-A (wrongly mentioned as PW2 again) Sh. Sanjay Nandi, Assistant from AIIMS has produced letter dated 06.09.2013, copy of OA no. 1302/14 filed before Central Administrative Tribunal in the matter of Ramji Rai v AIIMS & ors and copy of order dated 03.02.2015 passed by CAT, Delhi as Ex.PW2/1 (colly).
4.3. PW3 Sh. Ashok Kumar, LDC, Faculty Cell, AIIMS has produced office memorandum dated 09.04.2014 and stated that other documents were not traceable. The record produced by this witness is Ex. PW3/1 (colly).
4.4. PW3-A (wrongly mentioned as PW3 again) Sh. Pankaj Garg from Recruitment Cell, AIIMS, has produced office memorandum dated 04.03.2014 no. F.5-2/2009-Est. (RCT), Ex. PW3/1 (OSR).
Thereafter, PE was closed and matter was listed for Defence Evidence.
CS/8785/2016 Page 7 of 235. To rebut the case of the Plaintiff, the Defendant herself stepped in witness box as DW1 and tendered her evidence by way of affidavit Ex.DW1/A. Though in the said affidavit DW1 has mentioned that she is placing reliance on certain documents Ex. DW1/1 to Ex.DW1/18, however, at the time of tendering the evidence, she has relied on the documents already exhibited by DW2 and DW3 i.e. Ex. DW2/1 (colly) (OSR), Ex. DW2/2 (colly) (OSR), Ex. DW2/3 (OSR), Ex. DW2/4 (OSR), Ex.DW3/1 (colly) (OSR), Ex. DW3/2 (colly) (OSR). She had also relied on complaint dated 11.09.2013, which is Mark 'A' (mentioned in the affidavit as Ex.DW1/13).
5.1. DW2 Dr. Sudip Kumar Datta, Additional Professor, Department of Lab Medicine, AIIMS has produced memorandum dated 20.12.2012, 07.12.2010, 17.09.2008, 05.12.2011, 09.02.2013, 19.04.2014 and 24.04.2014 given to the Plaintiff Ex. DW-2/1 (colly) (OSR). He has also produced complaint letters with regard to plaintiff dated 05.04.2011, 02.02.2010, 29.09.2010, 04.10.2012, 14.01.2013 and 29.08.2013 Ex. DW-2/2 (colly) (OSR). He also produced transfer letter of plaintiff Ex. DW-2/3 (OSR) and request letter of plaintiff dated 06.05.2011 Ex. DW-2/4 (OSR). This witness was cross-examined by Ld. Counsel for the plaintiff.
5.2. DW3 Sh. Sanjay Kumar, Senior Administrative Assistant, AIIMS has produced complaint letters against the plaintiff heein dated 02.02.2010, 29.09.2010, 05.04.2011, 04.10.2012, 14.01.2013, 29.08.2013 and 04.03.2014 Ex. DW-3/1 (colly) (OSR). He also produced Meeting Agenda dated 25.05.2016 related to ACR cell Ex. DW3/2 (OSR). This witness was cross- examined by Ld. Counsel for the plaintiff.
Thereafter DE was closed.
CS/8785/2016 Page 8 of 236. I have heard arguments advanced by Ld. Counsels for both the parties and gone through the written arguments filed by them as well as the material available on record. My issue-wise findings are as under:-
Issue no. 1 Whether plaintiff is entitled for Rs.7,00,000/- on account of damages on account of malicious prosecution as prayed for? OPP
7. The onus to prove issue no. 1 was upon the Plaintiff. To discharge this onus, the Plaintiff as PW1 tendered his evidence by way of affidavit whereby he has in substance reiterated the version put forth by him in his plaint. To support his version, he has relied upon certain documents so mentioned in the said affidavit ranging from Ex. PW1/1 to Ex. PW1/20. However, it is noticed that though copies of the said documents have been placed in the court file, however, since originals of the same were not brought at the time of tendering of the evidence, the said documents were de-exhibited and were quoted as Mark 'A' to Mark 'T'. It is relevant to refer to Sections 60-65 of the Indian Evidence Act, 1872 according to which contents of document can be proved by primary evidence or by secondary evidence. Primary evidence is the document itself produced for the inspection of the court. Secondary evidence is defined in section 63 and can be led only in cases mentioned under section 65. In present case, neither the original has been produced by the plaintiff for the inspection of the court nor has proved cases where leading of secondary evidence is permissible. Thus, the said documents cannot be relied upon.
7.1. The main grievance for which the present suit has been filed by the Plaintiff is alleged by the Plaintiff is the initiation of malicious prosecution under various heads by the Defendant against the Plaintiff. It is now to be determined under the facts of the present case what is 'malicious' and whether the same has been proved. The same goes with the word CS/8785/2016 Page 9 of 23 'prosecution' and what comes within the ambit of 'prosecution' in the present facts of the case.
7.2. As per the evidence by way of affidavit of the Plaintiff, on year 2010 onwards when Plaintiff did not agree with the lackadaisical approach of the Defendant towards the Department and did not allow the Defendant to do illegal activities and mismanagement with the Department for her personal gains, the Defendant started harassing the Plaintiff in many ways such as marking the Plaintiff as absent even when he was on compensatory leave in violation of the system being followed by the Department. Due to the Defendant's feudal mentality and master-like behaviour, the Plaintiff was harassed to the extent that he sought transfer from the Department to some other Department in the year 2011 but the Defendant, having a grudge towards the Plaintiff for not obeying her dictates, started making false allegations before the superior authorities with the motive to defame him. With time, the Defendant has developed malicious intention against the Plaintiff and therefore, to harass the Plaintiff, the Defendant pressurized the juniors not to address the Plaintiff with due respect and not to obey his instructions and in this regard, Plaintiff made a complaint dated 15.07.2013 to Director AIIMS, Mark 'E' regarding mismanagement and non-cooperation of the Defendant. For further harassment of the Plaintiff, Defendant took signature of number of staff members on a false complaint dated 02.09.2013, against the Plaintiff, which was later withdrawn by the said staff members by making a representation dated 06.09.2013 Mark 'G' and 'H'. In October, 2013, there was a sting operation shown on the prominent TV channel, regarding the working of the Department where the Plaintiff and Defendant were working and the Defendant/ Faculty Incharge, to save her from all the allegations made via the said sting operation and to further harass the Plaintiff, gave the name of the Plaintiff that sting operation was done on the direction of the Plaintiff. A committee was set up to investigate the sting CS/8785/2016 Page 10 of 23 operation, the Plaintiff appeared before the Committee and clarified that he had no involvement in the sting operation and his name has been wrongly given by Faculty Incharge/ Defendant. Regarding the said sting operation on 24.10.2013, the Residents of AIIMS, wrote a letter dated 24.10.2013, Mark 'I' to Director, AIIMS, after getting shocked to see the media story on National News Channel 'Aaj Tak'. It was also deposed that Defendant also harassed other senior members of the Department to show her superiority and to restrain them from raising voice against her unlawful and unethical activities and in this regard, several staff members have made complaint dated 13.03.2014, Mark 'J' to Director, AIIMS, regarding high-handedness of the Defendant. It was also deposed in the affidavit that Defendant malafidely approached the higher authorities for transfer of the Plaintiff from AIIMS and therefore, vide letter dt. 04.03.2014, Mark 'K', transfer order of the Plaintiff to CRHS Project, Ballabhgarh was issued. However, when the staff members of the Department came to know about the said arbitrary transfer of the Plaintiff and ill-treatment by the Defendant, they wrote a letter dt. 21.05.2014, Mark 'M' to Director, AIIMS, showing solidarity in favour of Plaintiff and against the Defendant. It is also deposed that in this regard, the Plaintiff was constrained to write a letter/ complaint, Mark 'N' to the Director, AIIMS, against the biased and arbitrary conduct of the Defendant.
7.3. As per the plaint and evidence affidavit of the plaintiff, the first grievance of the Plaintiff against the Defendant is that from year 2009 onwards, when Plaintiff did not agree with the Defendant's lackadaisical approach towards the Department and with her illegal activities and mismanagement, she developed ill-will against him and the Plaintiff was harassed to the extent that he had to made a complaint to Deputy Director, Administration, Mark 'C' and had to further seek transfer to some other department in year 2011 by writing a letter dated 06.05.2011, Ex. PW-1/D2. However, in his cross-examination, on a suggestion put up by the counsel for CS/8785/2016 Page 11 of 23 the Defendant, Plaintiff negated the suggestion that he himself applied and gave a written application for his transfer and on being confronted with the letter Ex. PW-1/D2, he identified his signatures. Furthermore, it is the case of the Plaintiff that the Defendant was instrumental in getting the Plaintiff transferred to Ballabgarh. It is difficult to reconcile that at one point of time in 2011, it is on record that he himself wanted to be transferred out to some other department due to the harassment meted at the hands of the Defendant but the Defendant stalled his transfer at that time and on the other hand, Plaintiff avers that in 2014, transfer Order Ex. PW3/1 (OSR) were issued at the behest of the Defendant. Perusal of the letter Ex. PW-1/D2 reveals that there is no mention of the alleged harassment of the Plaintiff by the Defendant, rather it has been mentioned that Plaintiff has been working for a very long period in the same department and he wanted to learn something new to enhance his knowledge. Moreover, it is also difficult to digest that plaintiff has sought transfer in 2011 due to harassment done by the defendant but ACR grades for year 2010-11 and 2011-12 has been marked good by the defendant being the reporting officer.
7.4. Another grievance of the Plaintiff on which the relief in the present suit has been sought that due to ill-will against the Plaintiff, Defendant was instrumental in getting the transfer of the Plaintiff from AIIMS to CRHS, Ballabgarh. However, Plaintiff in his cross-examination has stated that he cannot show any authority or rules which can show that Defendant was empowered to transfer him and that only Administrative Department was authorized to transfer and that the said department works from a separate building in a separate office and also that there is no signature of the Defendant on the transfer order Ex. PW-3/1. Perusal of the court file reveals that there is no document or any independent oral evidence brought on record to show that the Defendant made efforts to get the Plaintiff transferred out of AIIMS to Ballabgarh. It is well settled that mere CS/8785/2016 Page 12 of 23 apprehension or presumption cannot take the place of cogent evidence. Thus, the present grievance of the Plaintiff that the Defendant was instrumental in the transfer of the Plaintiff, is without any basis and thus, no relief can be granted on the basis of same.
7.5. Yet another grievance of plaintiff for seeking relief in the present suit is that though the Plaintiff was working hard and sincerely, but due to ill- will and enmity developed by the Defendant against the Plaintiff, the performance of the Plaintiff in his ACRs were downgraded by the Defendant being the reporting officer of the Plaintiff. He has relied upon ACRs for the year 2010-2011 and 2011-2012, Ex. PW2/1 (colly) (OSR), wherein he was graded 'good' in both these years. The grievance pertains to the ACR for the year 2012-2013, wherein certain adverse remarks have been alleged by the Plaintiff, to be made by the Defendant. Counsel for the Plaintiff points out that in the said ACR, Plaintiff has been stated to be unscrupulous and dishonest and that he did not have supervisory or leadership qualities and that his human relations are poor and that his integrity is doubtful. It is to be noted that the said ACR was neither proved by the Plaintiff by producing the original nor he called any independent witness from the concerned Department to prove the same, hence, the said non-proved ACR cannot be relied upon by this Court. Moreso, Plaintiff in his cross-examination has deposed that since the year 1996 till 2017, his ACR was written by the Defendant and that remarks in his ACRs were changed by the Defendant from time to time. He admits that in 2008-2009, he was awarded 'good' grading by the Defendant. But as regards 2009-2010, he deposed that he can tell that he was given 'average' grading only after going through the said ACR. However, despite direction by the Court to produce the said ACRs, the Plaintiff did not brought on record the ACRs from the years 2009 to 2017. However, ACRs for the period 2010-2011 to 2021-2022, except for year 2012-2013, were brought on record by the Plaintiff when the Defendant, during her cross-examination, CS/8785/2016 Page 13 of 23 was confronted with the RTI reply dated 03.03.2023 alongwith the copies of the said ACRs Ex. DW1/P2 (colly). Perusal of the ACRs for the relevant years brought on record reveals that different gradings/ remarks have been given from time to time. Initially, the Plaintiff has relied upon Ex. PW2/1 (colly) (OSR), which are ACRs for years 2010-2011 and 2011-2012, wherein Plaintiff was graded 'good' by the Defendant herself. However, it is the case of the Plaintiff that Defendant has developed malice against the Plaintiff since 2009-2010 onwards. If that may be the case, it is difficult to reconcile as to why the said malice was not exhibited by the Defendant in the ACRs for years 2010-2011 and 2011-2012. Plaintiff has admitted that since 1996, the Defendant is the reporting office of the Plaintiff. He has nowhere averred that since 1996 onwards till 2009-2010 ( when Defendant is alleged to have developed malice towards the Plaintiff) that the Defendant has reported adverse in the ACRs of the Plaintiff.
7.6. Moreover, Plaintiff in his cross-examination has admitted that the final authority for the ACR is the Head of the Department and that every ACR used to be forwarded only after prior verification of the HOD and that ACR can be changed as per the performance of the employee. It is also admitted in his cross-examination that he cannot pressurize his senior to write ACR according to his own view and opinion and that a person cannot judge his own performance and can be judged by others only. It is also admitted by the Plaintiff that though he approached the higher authority for changing the remarks in his ACR but the Committee dismissed his plea in that regard. It is well-settled that ACRs can be written by the reporting officer of the employee only. Perusal of the format of the ACR reveals that the opinion of the Reporting Officer was to be further verified by the Reviewing Authority, who was the Head of Department and was a senior functionary to the Reporting officer. There is always a well-placed mechanism in the service rules, if there is any grievance by the employee qua his wrong reporting of the performance CS/8785/2016 Page 14 of 23 as an employee. Admittedly, Plaintiff's representation against the adverse remarks in the ACR was dismissed. Moreso, perusal of the ACRs reveals that Reviewing Authority was also to put his own opinion regarding the performance of the employee before forwarding the same to the concerned quarters.
7.7 In cross examination of the defendant, defendant has deposed that ACR is the performance review for a particular year and based on the performance of the plaintiff for the year 2013-14, she had made remarks stating the plaintiff was not trustworthy and dishonest and which were approved and verified by the HOD and the higher authorities. She further deposed that she does not remember any particular instances but there were instances where the plaintiff took mask for some other patient, though the same was for the laboratory purpose. She also deposed that she was the reporting officer for the plaintiff for the year 1997-2017 and grades as poor or average in the ACR of the plaintiff was given as per plaintiff's performance. On being asked whether she had shared adverse marks in the ACR for 2009- 10 with the plaintiff, the defendant had deposed that sharing of the same is the duty of the administrative office. She had further deposed that she is not aware that Junior to the plaintiff were promoted ahead of the plaintiff because of getting average grade in ACR in year 2012-13 & 2013-14 and that the ACRs during her period did not effect the plaintiff's promotion in any manner.
7.8 It is true that ACR is the performance review of an employee for a particular year by senior a functionary. The said review has to be done in a non-biased way and without fear and favour and the same should be correct reflection of the performance of the employee for that particular year. If for a couple of years, the performance of an employee has been graded as good, it does not mean that for subsequent years where his performance is not upto CS/8785/2016 Page 15 of 23 the mark, it is incumbent on the reporting officer to continue to give good grades to the said employee rather based on the employee performance, the requisite grade should be awarded. If for the subsequent years, the employee performance is not satisfactory, the reporting officer is duty bound as per service rules, to mark the correct grading for the performance. In the present case, a bare perusal of the ACR for different years reveals that performance of the plaintiff was marked good till 2008-09 but for year 2009-10, he was awarded average in the ACR and for years 2010-2011 and 2011-2012, he was again awarded good. Thereafter, he was again marked average for the year 2012-13. Plaintiff in his evidence affidavit has stated that the defendant has started harassing the plaintiff from the year 2009-10 onwards, however, if that may the case may be, then how come he was awarded good for the year 2010- 11 and 2011-12 by the same reporting officer who is the defendant.
7.9 Counsel for the plaintiff has argued that adverse remarks in the ACR of year 2013-14 has been expunged by the ACR review committee vide letter dated 25.05.2016 Ex. DW3/2 (OSR). Perusal of the said letter shows that only adverse remarks recorded in part-III at col. no. 1 (A) (B), col. no. 2
(ii), (iii) and (iv) were expunged due to the reporting officer having unable to provide written evidence in regard to the said adverse remarks and status quo regarding grading was ordered to be maintained. Though, the ACR of 2013- 14 has not been pleaded in the plaint but has been exhibited as a part of Ex. DW1/P2 during cross examination of the defendant. It is well settled that the Court cannot grant any relief going beyond the pleadings and thus, the ACR of 2013-2014 could not be looked into for the purpose of consideration of granting relief to the Plaintiff in the present suit. For academic discussion, perusal of the ACR of 2013-2014 reveals that only limited portion of the adverse remarks has been expunged and status quo was ordered to be maintained by the ACR Review Committee but adverse remarks in the other columns remained intact in the said ACR. In that scenario, can it be said then CS/8785/2016 Page 16 of 23 Review Committee, by not expunging the adverse remarks in the other columns, is having ill-will towards the Plaintiff and has therefore, caused harassment by not expunging the said adverse remarks? The answer is in the negative. Similarly, Defendant in her professional capacity was performing her professional duties in writing the ACRs of the employees for whom she is the Reporting Officer. If such Reporting Officer is not allowed to perform her duties independently including writing of the ACR, professional competency and efficiency would go for a toss. It may so happen that while writing ACRs, there may be certain exaggerations, both positive and negative, while reporting the performance of the employee or that there may be some wrong choice of terminology for judging the performance of the employee, but there are sufficient safeguard mechanism in the service rules/laws to protect against incorrect judgment of the performance.
7.10. Relevant in the context of the ACRs written by the Defendant qua the performance of the Plaintiff are the different complaints Ex. DW2/2 (colly) and Ex. DW3/1 (colly) (OSR) written time to time to the senior functionaries about the performance of the Plaintiff and the memorandums Ex. DW2/1 (colly) (OSR) issued by the various functionaries/ administration of the AIIMS with regard to the lack of professional performance by the Plaintiff. Perusal of the said complaints and memorandums shows that apart from the Defendant, the complaints have been written by other persons also including the Head of the Department, where the Plaintiff was working. Most of the Memorandums have been issued by the Administrative Department. Can it be said that the said persons other than the Defendant have caused harassment and mental agony to the Plaintiff by issuing the Memorandums or making the complaints. If yes, said persons become necessary parties and ought to have been impleaded in the present suit and if the answer is no, then the Defendant also cannot be imputed with the causing of harassment and mental agony to the Plaintiff.
CS/8785/2016 Page 17 of 237.11. Another grievance of the Plaintiff is that Plaintiff was on his compensatory offs on 07.04.2010, 08.04.2010, 03.04.2010, 06.04.2010, 14.04.2010, 17.09.2010 and 23.11.2010 after having verbal promise from HOD, however, Plaintiff was marked absent for the above dates and marked 'without pay' for the said period and could not get his pay for these offs. To this, the Defendant has pleaded that as per the manual of AIIMS, if anyone works overtime, then he/she must be paid by the institution, whereas defendant controverts the same stating that the Plaintiff took leaves on the given dates without informing to anyone and hence, the Plaintiff was marked 'without pay' for those particular days. Counsel for the Plaintiff has argued that Plaintiff was also harassed by marking the Plaintiff as absent even when he was on compensatory leave in violation of the system being followed by the Department. However, nothing has been brought on record to show that such a system existed or was being followed by the Department. Had there been any such system in existence or being followed by the Department, the Defendant, by marking the Plaintiff as 'absent' or 'leave without pay', would have been said to have caused harassment on this front. Since no existence of such system in the Department has been proved by the Plaintiff, it cannot be said that Defendant has harassed the Plaintiff by indulging into the aforesaid act.
7.12. Counsel for the Plaintiff has also argued that sting operation highlighting the ills in the Department of lab medicine of the AIIMS was broad-casted by a famous TV Channel in 2013 and that it was the Defendant who has named the Plaintiff as the person who has got the sting operation conducted. It is further argued that the main harassment of the Plaintiff by the Defendant started after the aforesaid broadcast of the sting operation. No proof or record of the aforesaid sting operation and alleged proceedings conducted by AIIMS in relation to the said sting operation has been put forth CS/8785/2016 Page 18 of 23 by the Plaintiff so as to show its relevancy or reasonable nexus with the factum of Defendant causing unnecessary harassment and mental agony to the Plaintiff.
7.13. Pertinently, there are certain allegations/ averments in the plaint, which in the opinion of the Court are totally alien and irrelevant for adjudicating the issues arisen in the suit. However, these are so referred so as to make the picture clear about the relevant versus irrelevant facts.
(a) Plaintiff has raised the issue of the wrongful appointment of the Defendant stating that her appointment was against administrative norms. Even the Defendant was cross-examined on the said issue but it is observed from the cross-examination of the Defendant that objection to the same was taken by the Defendant stating the same to be beyond pleadings. Even there is a Court observation noted that the said aspect is not related to the facts as pleaded in the plaint. It is clear that the said aspect in no way is relevant for the purpose of deciding the questions and issues arising in the present suit.
(b) Plaintiff has also cited certain complaints made by the employees of the AIIMS against the Defendant. Even in the cross-examination of the Defendant, Plaintiff has asked specific questions of a complaint made by Prof. Sarman Singh against the Defendant and also about Defendant filing a complaint against the said Prof. Sermon Singh in Women Cell and the same were objected to by the Defendant stating that the same are not related to the facts of the case. Even in the Court's opinion, the said complaints as well as answers, if any, to questions relating to the said complaints are not relevant for deciding the issues at hand. Even the Plaintiff or his counsel has failed to explain as to how these complaints would be relevant for the purpose of proving harassment and mental agony of the Plaintiff by the Defendant and for deciding the damages thereof.
CS/8785/2016 Page 19 of 23(c) In the plaint, plaintiff has cited one complaint Mark F, against defendant made by one Vandeta Vasudev, Biochemist, scientist-3 but again, the Plaintiff or his counsel has failed to explain as to how these complaints would be relevant for the purpose of proving harassment and mental agony of the Plaintiff by the Defendant and for deciding the damages thereof.
7.14. Pertinently, the issue under discussion is malicious prosecution. It means a judicial proceeding instituted by one person against another, from wrongful or improper motive and without probable cause to sustain it is a malicious prosecution. In the aforesaid discussion, there is nothing to show that any prosecution, within the meaning of malicious prosecution, was ever initiated by the defendant against plaintiff and plaintiff is unable to show, in the present facts of the case, that what they meant by malicious prosecution or what acts, as alleged against the defendant, constitute malicious prosecution. Even if it is assumed that present suit is for damages for harassment and mental agony simpliciter, even then, in view of aforesaid discussion, harassment and mental agony has not been proved by the Plaintiff for the award of the damages.
7.15 As regards quantum of the damages sought in the present suit, Counsel for the Plaintiff has argued that Plaintiff is claiming a sum of Rs.7,00,000/- qua damages due to malicious act of the Defendant towards the Plaintiff. He has claimed legal expenses of Rs.2,00,000/- incurred in filing O.A. before CAT; Rs.2,50,000/- for loss of health and mental peace; Rs.1,50,000/- for loss of reputation in the society; Rs.1,00,000/- for the loss of study of the children.
(a) As regards claim of legal expenses of Rs.2,00,000/- incurred in filing the O.A. before CAT, no proof of the expenses so incurred has been tendered.
CS/8785/2016 Page 20 of 23(b) As regards damages of Rs.2,50,000/- for the loss of health and mental peace, no proof of the expenses incurred in the medical treatment i.e. bills/invoices relating to medical treatment has been brought on record. Even the Plaintiff has not tendered any proof that the medical treatment, if any, taken by the Plaintiff was in relation to the alleged harassment by the Defendant. Even in view of aforesaid discussion, when harassment and mental agony has not been proved by the Plaintiff, no question of damages on account of loss of health and mental agony arises.
(c) As regards damages of Rs.1,50,000/- for loss of reputation in the society/ AIIMS, in view of the aforesaid discussion, when the harassment and the defamation of the Plaintiff has not been proved, no question of grant of damages on the said head arises.
(d) As regards damages of Rs.1,00,000/- for the loss of the study of children, no reasonable nexus has been elucidated by the Plaintiff between the alleged harassment of the Plaintiff by the Defendant (though as per aforesaid discussion, not proved) and the loss of study of the children. Even if the Court has to award damages, it has to limit itself for the grant of the same considering the concept of reasonable foresight and not beyond that.
Thus, in view of the aforesaid discussion, this issue is decided against the Plaintiff and in favour of the defendant.
Issue no. 2 Whether no cause of action arose in favour of the plaintiff and against the defendant for filing the present suit?OPD
8. Though the burden of proving this issue lies upon the Defendant, however, different aspects relating to issue no. 1 have already been discussed CS/8785/2016 Page 21 of 23 at length in the aforesaid discussion relating to the issue no. 1. Counsel for the Defendant has argued that since the Plaintiff himself has not been able to prove his case by leading cogent evidence, no further evidence needs to be led on behalf of the Defendant to prove the present issue. Since the primary burden of proof to prove the present case lied upon the Plaintiff and the fact that Plaintiff is unable to prove his case by proving the primary issue i.e. issue no. 1, this issue is also decided against the Plaintiff and in favour of the defendant.
Issue no.3 Whether the suit is liable to be dismissed for non-joinder of necessary party? OPD
9. Admittedly, both the Plaintiff and Defendant were working with the same institution i.e. AIIMS. It is not in dispute that the acts of the Defendant against the Plaintiff, as so pleaded by the Plaintiff, were performed by the Defendant in her official capacity. Evidence on record shows that the complaints made by the Defendant against the Plaintiff were made within the institution itself and were made in the exercise of her official capacity. Even in the ACRs coming in evidence, it is observed that after the Defendant has written the ACR, the same were to be forwarded to the higher authorities of AIIMS after verification from the HOD. Thus, it can be fairly gauged that the Defendant was not the sole authority for reporting the performance of the Plaintiff through the well intact mechanism incorporated in the service rules. Thus, AIIMS/ UOI (State) was a necessary party to the suit without whom no effective order could have been passed. In Moreshar Yadaorao Mahajan Vs Vyankatesh Sitaram Bhedi (D) CA 5755-5756 OF 2011, the Ho'ble Supreme Court has observed that a suit is liable to be dismissed if a "necessary party" is not impleaded and that for being a necessary party, the twin test has to be satisfied (1) there must be a right to some relief against CS/8785/2016 Page 22 of 23 such party in respect of the controversies involved in the proceedings (2) that no effective decree can be passed in the absence of such a party.
Thus, this issue stands decided in favour of the Defendant and against the Plaintiff.
Issue no. 4 Whether the suit is liable to be dismissed in violation of the provisions laid down in Order VI Rule 2 & 3 of CPC? OPP
10. On the said issue, on a query put up by the Court to counsel for the Defendant (in the present context of the suit it seems to be wrongly mentioned as 'OPP') that in view of violation of Rule 2 & 3 of Order VI CPC, whether there is any provision in CPC whereby the suit can be dismissed. Counsel for the Defendant could not pinpoint any such provision. Even in view of the decision of the aforesaid issues, the decision on this issue loses much relevance. Since the defendant has been unable to show whether a suit can be dismissed in violation of provisions laid down in order 6 rule 2 and 3 of CPC, this issue is decided against the defendant.
Relief
11. From the discussions, as adumbrated hereinabove, the present suit is dismissed. No orders as to costs. Decree-sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Announced in the Open Court on 29.01.2024 (Munish Bansal) Additional District Judge South District: Saket Courts New Delhi CS/8785/2016 Page 23 of 23