Delhi District Court
Sh. Deep Chand Bharti vs M/S Food Corporation Of India on 22 August, 2007
1
IN THE COURT OF MS. SUGANDHA GOYAL, CIVIL JUDGE: DELHI
SUIT NO. 722/06
Date of institution: 23.12.03
Order reserved on : 16.08.07
Order passed on : 22.08.07
IN THE MATTER OF:-
SH. DEEP CHAND BHARTI,
S/O SH. K. RAM,
R/O B-98, KONDLI COLONY,
DELHI-110096
... PLAINTIFF
VERSUS
M/S FOOD CORPORATION OF INDIA
THROUGH ITS ZONAL MANAGER (NORTH)
ANSAL BHAWAN, K. G. MARG,
NEW DELHI.
... DEFENDANT
SUIT FOR DECLARATION, PERMANENT AND MANDATORY
INJUNCTION
JUDGMENT
1. Vide this judgment, I shall dispose of a suit for declaration, permanent injunction and mandatory injunction file by the plaintiff. The facts in brief as averred in the plaint are that plaintiff was appointed as draftsman (Grade-II) on 18.08.1978 by the defendant department. Since then the plaintiff is serving in the said department without any record of 2 disobedient. Plaintiff was convicted by the court of Judicial Megistrate, Ist Class, Faridabad in FIR, P. S. Chhayass under Section 325 and 149 of Indian Penal Code vide order dated 16.04.99. He was sentenced for said offence vide order dated 17.04.99. In pursuance of the said conviction, plaintiff was suspended from the service by the defendant vide order dated 04.09.2000. Plaintiff preferred an appeal against the order dated 16.04.1999 and 17.04.1999 in the court of Ld. ASJ, Faridabad. The order dated 17.04.1999 was modified and plaintiff was released on probation vide order dated 12.07.2002. The said fact was duly informed to the defendant. It is further contended that despite being aware of the order passed by the Ld. ASJ, defendant terminated the service of the plaintiff by order dated 31.07.2003. the plaintiff has claimed the benefit of section 12 of the Probation of Offenders Act. It is contended that as per section 12 of the Probation of Offenders Act, 1958, no disqualification remains as required under Article 311(2) of the Constitution of India for serviceman to continue in the service. It is further contended that several representations were made by the plaintiff. But defendant company without considering the said representations illegally terminated the service of the plaintiff. In light of above mentioned circumstances, plaintiff was constrained to file the present suit. In the present suit plaintiff has prayed for declaration thereby declaring that the order dated 04.09.2000 and 31.07.2003 passed by the defendant are null and void, decree of permanent injunction thereby restraining the 3 defendant from dismissing the plaintiff from the service in light of judgment dated 12.07.2002 and a decree of mandatory injunction thereby directing the defendant to reinstate the plaintiff on his duties along with all the benefits and amenities with full back salary and other benefits.
2. In the written statement filed by the defendant in reply, all the averements of the plaint are categorically denied. It is contended on behalf of defendant that the plaintiff has not filed any appeal to the order of ld. ASJ. LD. ASJ has modified the order of sentence only. But the finding of the trial court by which the plaintiff has been found guilty was not modified. As act of the plaintiff amounts to a criminal offence involving moral turpitude same is a misconduct as per the FCI (staff) Regulations,1971. Therefore the defendant is authorized to terminate the service of the plaintiff. Further defendant has taken a preliminary objection that the service of defendant was terminated on 31.07.2003 with immediate effect. The said order was communicated to the plaintiff also. Therefore plaintiff has no cause of action to file the present suit. It is also contended the plaintiff has not come to the court with clean hands and has concealed the material facts. Defendant has averred that this court has no jurisdiction to try the present suit as the case of the plaintiff is covered by the Industrial Disputes Act which excludes the jurisdiction of civil court.
3. In replication plaintiff has denied all the pleas taken by the defendant in 4 the written statement and has reasserted the contents of the plaint.
4. From the pleadings of the parties following issues were framed:
1.Whether the plaintiff is entitled to a decree of declaration as prayed? OPP
2.Whether the plaintiff is entitled to a decree of permanent injunction as prayed? OPP
3. Whether the plaintiff is entitled to a decree of mandatory injunction as prayed? OPD
4. Whether the suit is not maintainable as filed in its present form? OPD
5. Whether the plaintiff is guilty of suppression and concealment of material facts? OPD
6. Whether this court has no jurisdiction to try and entertain the present suit in view of the preliminary objection no. 3? OPD
7. Relief.
5. In order to prove his case plaintiff himself stepped in the witness box as PW1. He reiterated and reaffirmed the contents of the plaint on oath. His statement with this regard was recorded on 26.05.05 wherein he has proved on record the affidavit filed in examination in chief as Ex P1. PW1 has proved on record the copy of the order dated 4.09.2001 as Ex PW1/1, certified copies of the order dated 16.04.1999 and 17.04.1999 as Ex PW1/2 and Ex PW1/3 respectively, certified copy of order dated 12.07.2002 as Ex PW1/4. Copy of the representations filed by the plaintiff dated 26.07.2002 5 and 14.08.2002 are proved on record as Ex PW1/5 and Ex PW1/6 respectively and the copy of the order dated 31.07.2003 thereby terminating the service of the plaintiff as Ex PW1/7. In the cross examination plaintiff maintained his stand. He further deposed that he has deposited a sum of Rs.5000/- as compensation as ordered by the court of Ld. ASJ. Further PW1 denied that he has received all the benefits after termination.
6. In order to prove its averements defendant examined two witnesses, Sh. A.K.Katyal as DW1 and Sh. K.K.Barua as DW2.
DW1 in his cross examination has submitted that he is aware of the facts of the case as per record maintained by defendant corporation. Further he also has personal knowledge of the case as he has partly handled the present case. Further he reiterated and reaffirmed the contents of the written statement on oath. Copy of the order dated 31.07.2003 is proved on record as Ex DW1/1 and relevant extracts of FCI (Staff) Regulations, 1971 as Ex DW1/2. During cross examination, DW1 maintained his stand and submitted that the order passed by the defendant department on 31.07.2003 is not illegal or wrong. He further submitted that he has personally dealt with the case of the plaintiff. Further he deposed that it is wrong that department has passed the orders dated 31.07.2003 without considering the various representations made by the plaintiff but he had shown his in ability to tell whether the defendant department has replied to the representations made by 6 the plaintiff.
DW2 has reiterated and reaffirmed the contents of written statement on oath. He further deposed that the defendant department has considered the representations of the plaintiff as per provisions of law before passing the order dated 31.07.2003. The service of the plaintiff was terminated as per regulation no. 56 r/w 63 of the FCI (Staff) Regulations, 1971. During cross examination, DW2 deposed that he deals with the complaints made by public against the employee of the defendant. There has not been any such complaint against the plaintiff. It was further deposed that the DW2 has no personal knowledge of the case as he has not dealt with it.
7. I have heard the contentions raised by Ld. Counsel for both the parties.
8. Ld. Counsel for the plaintiff has reasserted the contents of plaint. It has been further contended that that the testimony of DW2 cannot be considered as he has deposed that he has no personal knowledge of the case. Further the judgment titled as Hari Chand Vs. Director of Schools Education as relied upon by the defendant is not applicable in the present suit. As in that case, plaintiff was guilty of criminal breach of trust which amounts to official misconduct. Further Ld. Counsel for the plaintiff has relied upon judgments passed by Hon'ble Supreme Court in Aitha Chander Rao Vs. State 7 of A. P. 1981 (Supp.) SCC 17 wherein it has been held that "Probation of Offenders Act 1958 (20 of 1958) Section 4 and 12 on the peculiar fact and circumstances, held, the appellant found guilty U/s 304-A IPC should be released on probation on executing bond for good behaviour, having been released on probation, held, conviction not to affect his service career as per section 12." In another judgment titled as The Divisional officer, Southern Railway & anr. Vs. T. R. Chellappan (1967) III SCC 1990 it has been held that Government servant's misconduct, delinquent employee conducted by a criminal court but released on probation, held, conviction not obliterated for the purposes of the departmental rules, probation of Offender Act, 1958, Section 3,4,6 and 12 effect of Section 12, significances of the words, attaching to a conviction of offence under such law, in Section 12, held, do not contemplate automatic disqualification. He has further relied upon judgment passed by Hon'ble Delhi High Court in III DLT 456 wherein it is held that conviction "U/s 323 and 148 IPC" does not involves moral turpitude.
Ld. Counsel for the defendant has argued that the act of the plaintiff amounted to moral turpitude. It is authorised to terminate the serivce of the plaintiff under FCI (Staff) Regulations, 1971 and there is no infirmity in the order dated 31.07.2003. Furthermore, Ld. Counsel for the defendant has reasserted the contents of written statement. Ld. Counsel for the defendants has relied upon Hari Chand Vs. Director of School Education 8 (1998) 2 SCC 383 which states that a person convicted by the trial court released under Section 4 (1) of Probation of Offenders Act, 1958, Section 12 of the Act, held, did not bar taking into account the conviction for the purposes of dismissal from the service. It is further argued that even if the plaintiff was aggrieved by order dated 31.07.2003 then right course was to file an appeal in the appropriate appellate authority. As the plaintiff has not exhausted all other alternative remedies, present suit is not maintainable in this court.
9. I have considered the contentions raised by the Ld. Counsels for both the parties and perused the record carefully.
10. My issue wise findings are as follows:-
ISSUE NO.1
1. Whether the plaintiff is entitled to a decree of declaration as prayed? OPP Onus to prove this issue was on the plaintiff. Plaintiff has contended that as he was released on probation by Ld. ASJ, he is entitled to the benefit of Section 12 of Probation of Offenders Act. Plaintiff examined himself as witness wherein he reiterated the contents of the plaint on oath.
He placed on record certified copy of the judgment passed by Ld. ASJ by which he was released on probation. The fact that he was so released has not 9 been disputed by the defendant. During cross- examination, plaintiff admitted that he has deposited a sum of Rs.5000/- as compensation in the Appellate court. Further his termination was wrong and he has not received any terminal benefits after the termination of his service. Ld. Counsel for the plaintiff has argued that the act of the defendant was illegal and unauthorised, as the plaintiff was released on probation, he was entitled to the benefit of Section 12 of the Probation of Offenders Act. It is further argued on behalf of plaintiff that the defendant has examined two witnesses. DW2 during cross examination has deposed that he had no personal knowledge of the termination proceedings against the plaintiff. Both the witnesses stated that defendant is authorised to terminate the service of the plaintiff vide Regulation 56 of the Staff (Regulations) 1971 but expressed their inability to produce copy of the regulations in the court. It is also contended that termination order passed by the defendant amounts to grave miscarriage of the law. It is further contended that the judgment titled Hari chand vs Director of Schools (supra) relied upon by the defendant is not applicable in the present case. Facts of the said judgment was different from the facts in the present case as in the said judgment, plaintiff was guilty of criminal breach of trust which amounts to official misconduct. Further plaintiff has relied upon the judgments passed by Hon'ble Supreme Court in Aitha Chander Rao Vs. State of A. P. 1981 (Supp.) SCC 17 and The Divisional officer, Southern Railway & anr Vs. T. R. Chellappan (1967) III 10 SCC 1990. defendant has also relied upon III (2004) DLT 456.
Defendant has contended that the plaintiff is not entitled to the benefit of section 12 of the Probation of Offenders Act. The act of the plaintiff amounts to moral turpitude. Ld. Counsel for the defendant in the written statement has contended that the termination of the plaintiff was lawful. Ld. ASJ has only released plaintiff on probation, however, the sentence of the trial court holding the plaintiff guilty has not been modified. The plaintiff's act amount to moral turpitude, therefore, he is not entitled to the benefit of Section 12 of Probation of Offenders Act. Further more , that the defendant was authorised to terminate the services of the plaintiff as per FCI (Staff) Regulations, 1971. In order to support its averements, defendant examined two witnesses. DW1 submitted that he was partly involved in the termination proceedings of the plaintiff, however, DW1 was not present throughout the termination proceedings. It is further deposed during cross examination that order dated 31.07.2003 was passed by defendant department after considering all the representations made by the plaintiff. But he cannot say whether defendant department replied all the said representations of the plaintiff or not. DW2 reasserted the contents of the written statement on oath. He further deposed during cross examination that DW2 was working as a assistant and dealing with complaints made by public against the employee of the defendant department. But never any complaint was received against the plaintiff. It was further deposed on behalf of the 11 DW2 that he is not aware of any order passed against the plaintiff by the defendant department as he did not participated in the termination proceedings.
Ld. Counsel for the defendant has reasserted the pleas taken in the written statement during final arguments. Further relied upon judgment passed by Hon'ble Supreme Court in Hari Chand Vs. Director of School Education 1998 Vol. 2 SCC 383. It is further argued by Ld. Counsel for the defendant that if the plaintiff was aggrieved by the orders passed by defendant company on 31.07.2003, he should have approach the appropriate appellate authority. The present suit in this court is not maintainable as the plaintiff has not exhausted all other alternative remedies.
Section 12 Probation of Offenders Act is as under:-
"Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of Section 3 of Section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law."
It is admitted that the order dated 16.04.1999 of the trial court by which he was convicted was not set aside by the court of Ld. ASJ and plaintiff was found guilty under section 325 and 149 of IPC. It was only the sentence that was modified and plaintiff was released on probation. It is contended on behalf of the defendant that the services of the plaintiff was terminated as his act amounted to moral turpitude. I have perused the order dated 31.07.2003 passed by defendant department thereby terminating the 12 services of the plaintiff. As per the said order, services of the plaintiff was terminated as he concealed the fact that he was arrested upon conviction by trial court . It was only when he was released on probation by the court of Ld. ASJ, he informed about the same to the defendant department. Furthermore, order of the trial court holding the plaintiff guilty of an offence has not been set aside by the Appellate Court. Hence, it amounts to moral misconduct as per the FCI (Staff) Regulations and accordingly, services of the plaintiff was terminated. With regard to the contention of the defendant that the act of the plaintiff amounts to moral turpitude, Ld. Counsel for the plaintiff has relied upon the judgment passed by Hon'ble Delhi High Court in III 2004 DLT 456 wherein it is held that conviction "U/s 323 and 148 IPC"
does not means involvement in moral turpitude but the said judgment is not applicable in the present case as the plaintiff is guilty "U/s 325 and section 149 IPC" and not "under Section 323 IPC and section 148 IPC".
Furthermore, counsel for the plaintiff has relied upon the judgments of Hon'ble Supreme Court in Aitha Chander Rao Vs. State of A. P. 1981 (Supp.) SCC 17 wherein it has been held that "Probation of Offenders Act 1958 (20 of 1958) Section 4 and 12 on the peculiar fact and circumstances, held, the appellant found guilty U/s 304-A IPC should be released on probation on executing bond for good behaviour, having been released on probation, held, conviction not to affect his service career as per section 12." In another judgment titled as The Divisional officer, Souther Railway & 13 anothers Vs. T. R. Chellappan (1967) III SCC 1990 it has been held that Government servant's misconduct, delinquent employee conducted by a criminal court but released on probation, held, conviction not obliterated for the purposes of the departmental rules, probation of Offender Act, 1958, Section 3,4,6 and 12 effect of Section 12, significances of the words, attaching to a conviction of offence under such law, in Section 12, held, do not contemplate automatic disqualification. Both these judgments were passed by Apex Court in 1976 and 1981. Ld. Counsel for the defendant has relied upon Hari Chand Vs. Director of School Education 1998 Vol. 2 SCC 383 which was passed recently, states that a person convicted by the trial court released under Section 4 (1) of Probation of Offenders Act, 1958, Section 12 of the Act, held, did not bar taking into account the conviction for the purposes of dismissal from the commons service.
Furthermore Section 12 of Probation of Offenders Act says that the disqualification shall attach with the conviction by specific provisions. In the present case, no such disqualification is given in IPC and hence, Section 12 is not applicable. Furthermore, Hon'ble Supreme Court recently in Shankar Dass Vs. Union of India & anors (1985) 2 SCC 358 has held that the order of dismissal from service consequent upon a conviction is not a "disqualification" within the meaning of Section 12. The word "disqualification" is used in Section 12 in the sense in which certain statutes provide that persons who are convicted for certain offence shall incur certain 14 disqualification." Both the judgments relied upon by the plaintiff was passed by the Apex Court in 1976 & 1981, Hon'ble Supreme Court recently in 1985 and in 1998 has held that dismissal from the services consequent of conviction is not a disqualification within the meaning of Section 12 and also termination of service of the plaintiff was not on the grounds of conviction but for concealment of said fact from the defendant department and for involvement in a act amounting to moral turpitude. Furthermore, even if it is taken that the order dated 31.07.2003 was illegal then plaintiff had to approach the appropriate authority and as he has not exhausted all alternative remedies, the suit in this court is not maintainable. This court cannot sit as an appellate court to the order passed by defendant department on 31.07.2003. In view of the above discussion and as held by Hon'ble Supreme Court in Shankar Dass Vs. Union of India, issue in hand is decided against the plaintiff and in favor of the defendant.
ISSUE NO. 2
2. Whether the plaintiff is entitled to the decree of permanent injunction as prayed?OPP Onus of proving this issue was on the plaintiff. The suit with regard to this issue was dismissed as the plaintiff gave a statement on 19.04.04 that he is not pressing his prayer clause b in the present suit. 15 ISSUE NO. 3
3. Whether the plaintiff is entitled to the decree for mandatory injunction as prayed? OPP Onus of proving this issue was on the plaintiff. In the light of the issue no. 1, present issue is also decided against the plaintiff and in favor of the defendant.
ISSUE NO. 4
4. Whether the suit is not maintainable as filed in its present form? OPD This issue was treated as a preliminary issue. It was decided by my Ld. predecessor in favor of the plaintiff and against the defendant vide order dated 19.01.2004. hence this court has the jurisdiction to try and entertain the present suit.
ISSUE NO. 5
5. Whether the plaintiff is guilty of suppression and concealment of material facts? OPD Onus of proving this issue was on the defendant. A preliminary objection has been taken by the defendant that plaintiff has concealed the material facts from this court. However defendant has not mentioned specifically which 16 facts have been concealed. Neither any evidence has been led by the defendant on this point. Only a vague objection has been taken in the written statement. As the onus of proof for this issue was on the defendant and it has miserably failed to prove the same, issue in hand is decided in favor of the plaintiff and against the defendant.
ISSUE NO. 6
6. Whether this court has no jurisdiction to try and entertain the present suit in view of the preliminary objection No. 3? OPD This issue was treated as a preliminary issue. It was decided by my Ld. predecessor in favor of the plaintiff and against the defendant vide order dated 19.01.2004. hence this court has the jurisdiction to try and entertain the present suit.
RELIEF In the light of the above discussion, present suit is dismissed without any orders to costs.
File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (SUGANDHA GOYAL) TODAY ON 22.08.07 CIVIL JUDGE : DELHI