New Delhi Municipal Council vs Goverdhan Dass Sharma
2003 Latest Caselaw 1014 Del

JUDGMENT

R.S. Sodhi, J.

1. This appeal is directed against the judgment and order of the Senior Civil Judge, Delhi in RCA No. 13/1994, which appeal arose out of the judgment and decree dated 12th January, 1994, passed by the Sub Judge in Suit No. 367/1993, whereby the Sub Judge had dismissed the suit of the plaintiff. The Appellate Court reversed the judgment and decree passed by the Sub Judge vide its judgment dated 30th September, 1998, on the ground that the trial court did not consider the fact that a registered notice, Exhibit PW 1/5, was issued by the counsel for the plaintiff regarding toll tax receipt No. 2743 and that the postal receipt is Exhibit PW 1/6 and the AD Card is Exhibit PW 1/7, The trial court also did not consider the reply from the Executive Officer, Kanya Kumari, Mark D-5, which is the verification of the toll tax receipt No. 2743 to bus No. DEP 2803 dated 28th June, 1982.

2. The substantial question of law framed in this case vide order dated 23rd August, 1999, was :

"Whether on the facts and circumstances of this case decree of courts below could be sustained?"

3. The brief facts of the case as noted by the the Sub Judge are as follows :

""that plaintiff is employed as Assistant Teacher under the defendant and is posted in the N.P.Middle School, Kidwai Nagar, New Delhi. The entire service records of the plaintiff is quire unblemished, honest and sincere. The plaintiff applied for availing Leave Travel Concession for the journey from Delhi to Kanya Kumari for the block year 1982-1985 for himself and nine other members of his family. For availing the said L.T.C., the defendant sanctioned Rs. 7, 690/- as an advance vide voucher No. 968 dated 8/6/82. According to the plaintiff, after performing the actual journey from Delhi to Kanya Kumari, he submitted his L.T.C. Claim for Rs. 9, 612/- and submitted various documents, namely, the special Permit of bus No. DEP 2803 and the passenger list. The defendant after holding an enquiry which was an empty formality issued an office order No. 104/PB/Vig./IMP/89/IOV-VI dated 19/6/89 which imposes a penalty "deduction of pay by one stage and postponing his future increments with pay" Along with the recovery of amount of advance of L.T.C. Given. According to the plaintiff, during the course of enquiry, the plaintiff produced defense witnesses and all the documents which are quire reliable and clearly indicate that the plaintiff performed actual journey from Delhi to Kanya Kumari w.e.f.11/6/1982 to 30/6/1982. According to the plaintiff, despite the fact that the claim of the L.T.C. Of the plaintiff was quite genuine, the enquiry officer recorded its findings quite contrary to the facts proved and established on record because the enquiry officer had placed his conclusion only on solitary evidence of toll tax receipt of Rs. 5/- without appreciation and analysing the weight of evidence. According to the plaintiff, there is a clear proof that bu No. DEP 2803 vide special permit No. 3721 issued by the State Transport Authority was issued toll tax receipt by the Executive Office vide entry No. 2743 dated 28/6/82 at Kanya Kumari. According to the plaintiff, in view of these facts and submissions, it is clear that the impugned office order is illegal, abritrary and not binding on the plaintiff."

4. It is argued by counsel for the appellant that the First Appellate Court is wrong in holding that the trial court has not taken into consideration the tax receipt No. 2743 dated 28th June, 1982 in respect of bus No. DEP 2803. He further submits that the trial court has dealt with this document at length while dealing with the issue No. 1 and has returned a categoric finding that the toll tax receipt No. 2743 dated 28th June, 1982 at Kanya Kumari, could not be pressed into service in aid of the plaintiff for the reasons that the plaintiff had left Kanya Kumari on 27th June, 1982.

5. From the statement of PW-1, I find that he left Delhi for Kanya Kumari in the intervening night of 10th/11th June, 1982 and reached Kanya Kumari on 26th June, 1982. He remained there for one day only and left Kanya Kumari on 27th June, 1982. He stayed at Ganesh Hotel at Kanya Kumari. The original bill was produced before the Enquiry Officer.

6. The above-stated statement cannot be reconsiled with the toll tax receipt No. 2783 dated 28th June, 1982. Thus, the conclusion drawn by the trial court was perfectly justified. The First Appellate Court was wrong in holding that the trial court has neither considered the receipt and/or if considered has not correctly appreciated the evidence. This being the only issue pressed before me, I find that the First Appellate Court was not correct in reversing the findings arrived at by the trial court. In this view of the matter, I allow RSA 7/1999 and set aside the judgment and order dated 30th September, 1998, and restored the judgment and decree passed by the Sub Judge, Delhi in Suit No. 467/1993 dated 12th January, 1994.

CMs 300/1999 and 2323/1999 also stand disposed of.

No order as to costs.