M/S P.E.C. Ltd. vs Mr.Jai Bhagwan
2009 Latest Caselaw 2280 Del

*       HIGH COURT OF DELHI : NEW DELHI

                      RFA No. 553 of 2004

%             Judgment reserved on:18th May, 2009

              Judgment delivered on:27th May, 2009


M/s P.E.C. Ltd. (A Govt. of
India Enterprises) As a Company
under the provisions of the Companies
Act, 1956, having its registered office
At Hansalaya, 15, Barakhamba
Raod, New Delhi-110001,
Through
Sh.R.K.Arora, Marketing Manager
Principal Officer and its
Constituted attorney.                            ....Appellant

                     Through: Mr.Sanjeev Narula, Adv.

                              Versus

Mr.Jai Bhagwan,
S/o Sh.Dharam Singh Sharma,
R/o B-104, Vijay Nagar,
Bawana, Delhi-110039.

Also available at:
Village & Post Office Nahra,
Sonepat, Haryana.                              ...Respondent

                     Through: Mr.D.C.Sharma, Adv.

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                       Yes


RFA No.553 of 2004                        Page 1 of 16
 2. To be referred to Reporter or not?                     Yes

3. Whether the judgment should be reported
   in the Digest?                                         Yes

V.B.Gupta, J.

Appellant has filed the present appeal against

the judgment dated 6th September, 2004 passed by

Addl.District Judge, vide which the suit of the appellant

was dismissed.

2. Brief facts of this case are that appellant is a

Govt. of India enterprises; that it is incorporated and

registered as a Company under the provisions of the

Companies Act, 1956; that Sh.R.K.Arora Dy.Marketing

Manager, is the Principal Officer and the Constituted

Attorney of the appellant-company; that he is well

conversant with the facts of the present case; that he is

duly authorized to sign, verify, file and institute the

present suit by virtue of the power of attorney dated

24.4.2002. Respondent is the former employee of the

appellant company, who illegally, falsely and

fraudulently received money from the appellant-

company on the basis of false documents and

statements. He joined the services of the appellant as

junior assistant on 9.1.1981. On 4.10.2000 respondent,

while in service of appellant company, committed

breach of rules as he joined another Government Office

under the name of J.B.Parashar. The Government

office joined by respondent was Excise and Taxation

Department in Government of Haryana; where he

joined as Taxation Inspector. Respondent is widely

known as Jai Bhagwan in appellant-company. He

(respondent) started claiming the benefits available on

the post of Taxation Inspector w.e.f. 4.10.2000 and

concealed and withheld this vital information from

appellant-company. Even after 4.10.2000, on

11.1.2001 respondent was promoted as Dy.Manager-II

and he joined the said post on 11.1.2001. Appellant

company announced voluntary retirement scheme

1989/2001. On 15.1.2001, respondent applied under

the said scheme for voluntary retirement. At the time

of submitting his application, respondent failed to

disclose and concealed the facts of his second

employment with government of Haryana. Appellant-

company relieved him from the services vide office

order No.47A/2001 dated 17.1.2001. During the period

from 4.10.2000 to 17.1.2001, respondent continued to

attend the office of appellant company, except only on

three days, i.e. 30.10.2000, 01.11.2000 & 12.1.2001.

Respondent received ex-gratia amount on account of

VRS, three months notice period pay, Leave

Encashment, Provident Fund, Gratuity, Service award,

Leave Travel Assignment and also medical benefits

under PEC Retired Employees-Medical Benefit scheme

for his treatment and also for treatment of his wife.

3. Appellant-company claimed recovery of

Rs.8,08,347/- from respondent. This amount includes

Rs.6,51,211/- as the amount alleged to have been

illegally and fraudulently received by respondent and

the balance as interest @ 17% per annum on the said

amount w.e.f. 17.1.2001 till the filing of the suit.

Pendentalite interest at 17% per annum w.e.f.

19.6.2002 till the realization of amount has also been

claimed.

4. Appellant-company also prayed for a decree of

perpetual injunction restraining respondent from

selling his property bearing No.B-104, Vijay Nagar,

Bawana, Delhi, and for a decree of perpetual injunction

restraining the respondent from operating his bank

account No.4304 maintained with Indian Overseas

Bank, Prakash Deep Building, Tolstoy Marg, New Delhi

and also another bank account No.6126 with Union

Bank of India, Sector 6, Urban Estate, Karnal,

Haryana. Appellant-company also prayed for perpetual

injunction restraining the respondent from removing

money from his bank accounts or lockers maintained

with Indian Overseas Bank and Union Bank of India.

Appellant-company prayed for a decree of declaration

that respondent has committed breach of PEC

Employees (Conduct, Discipline & Appeal) Rules, 1975

and has thereby mis-conducted himself and has

illegally, fraudulently received the money from the

appellant.

5. In his written statement, respondent stated that

he has already proceeded on voluntary retirement

w.e.f. 17.1.2001. No action was taken during the

service and at this stage no action can be initiated

without the receipt of sanction of competent authority.

The present suit filed by appellant- company is without

any cause of action. The suit is not signed and verified

by duly authorized person. Sh.R.K.Arora is not

empowered to take decision to bring suit against

respondent, as huge amount is involved in litigation

expenses. Only Board of Directors can take decision

about the person against whom the suit is to be filed.

No resolution has been passed by Board of Directors of

the appellant authorizing Shr.R.K.Arora to bring suit

against the respondent.

6. It is admitted that Sh.R.K.Arora is Dy.Marketing

Manager of the appellant-company. It is also admitted

that he (respondent) joined PEC on 9.1.81 and served

till 17.1.2001. Respondent submitted his application

for the post of Taxation Inspector in 1992 through

appellant-company and in the application form he has

added his surname as per the requirement of format of

the application form. Respondent joined Haryana

Government as Taxation Inspector after submitting the

resignation on 7.7.2000. He joined Haryana

Government on 4.10.2000, i.e., three months after

submitting of his resignation. He had to join the

service under compelling circumstances. Had he not

joined Haryana Government on 4.10.2000, his

appointment would have been cancelled. He was

offered the post of Taxation Inspector after continuous

struggle of eight years. In 1992, his application for

Taxation Inspector in Excise and Taxation Department

of Haryana Government was routed through appellant-

company. There were 14 posts reserved for Ex-

servicemen category but unfortunately no Ex-

servicemen candidate was brought on panel. After

judgment of Supreme Court, it was decided by

Haryana Government to allow the present respondent

to join the department within 15 days. He

(respondent) immediately on receipt of letter of

appointment from Haryana Government applied for

extension of 90 days time. After submitting his

resignation to the appellant, Haryana Government,

granted him extension, under the condition that he

would have to join Haryana government within 90

days. If he had failed to join the post with the

stipulated period, his appointment would have been

cancelled. Accordingly, he had no option but to join

Haryana Government on 4.10.2000. He had already

sent his resignation to Haryana Government and for

4.10.2000 and 5.10.2000, he had not claimed any

benefit whatsoever. He applied to appellant-company

for grant of "No Objection Certificate" on 28.9.2000 to

enable him to join Haryana Government within

stipulated period by 4.10.2000. Appellant-company

issued "No Objection Certificate" which entitled to him

to join Haryana Government. He has hardly remained

with Haryana Government for two days, i.e. 4.10.2000

and 5.10.2000 for which he has not availed of any

benefit and tendered his resignation.

7. It has been argued by learned counsel for the

appellant that respondent is not entitled to the benefits

under Voluntary Retirement Scheme, as the

respondent was in the employment of Haryana

Government and this fact has been concealed and

withheld from the appellant.

8. It is also contended that respondent had also

availed benefits by making fraudulent affidavit and

false declaration to the same effect. If the appellant

had been aware of the respondent‟s double

employment as on the date of application for VRS,

respondent would not have been granted VRS and

moreover respondent‟s services would have been

terminated on the ground of breach of rules.

9. It is further contended that irrespective of the

fact, whether respondent has received double benefit

or not from two different departments, appellant is

entitled to a decree for recovery of the amount on the

ground that the payment received by the respondent

under the VRS, is due to respondent‟s playing a fraud

upon the appellant and also due to breach of rules

applicable to its employment, as admittedly respondent

was in the employment of Haryana Government, while

at the same time he was also in the employment of the

appellant. No objection given by the appellant, if any,

is a forged one.

10. On the other hand, it has been contended by

learned counsel for the respondent, that respondent

has applied for job of taxation inspector in Haryana

through proper channel and for that purpose, he also

applied for a "No Objection Certificate", vide his letter

Ex.DW-3/F1 dated 28th September, 2000, which was

duly received by the appellant. In terms thereof, „No

Objection Certificate‟ was issued by the personal

officer of the appellant, vide Ex.DW-3/F2 dated 28th

September, 2000. Since respondent was granted „No

Objection Certificate‟ by the appellant, now appellant

is estopped from challenging the same. Moreover,

there is nothing on record to show that respondent

received salary under double employment, which he

could not have got otherwise.

11. It is an admitted case of the parties that

respondent joined Haryana Government on 4th

October, 2000 as Taxation Inspector. However, he did

not draw any salary from Haryana Government from

October 2000 to January 2001. Respondent got his

salary in the month of February 2001, which fact has

been corroborated by DW-2 Jai Bhagwan, Cashier,

Office of Deputy Excise and Taxation Department,

Karnal, Haryana, who in his statement stated that

appellant joined the department of Excise Taxation on

4th October, 2000 and has signed the attendance on 5th

October, 2000. Thereafter he marked his attendance

on 19th January, 2001, for the period 6th October, 2000

to 18th January, 2001. This witness further deposed

that the respondent has not drawn any salary from

October, 2000 to January, 2001.

12. So, from the statement of DW-2, who is an official

witness, it stands clearly established that respondent

has not drawn any salary from Haryana Government

for month of October to January, 2001. Thus, there is

nothing on record to show that respondent received

double benefit in respect of any item, from two

different departments, for the same period.

13. The case of respondent is that he obtained „No

Objection Certificate‟ from appellant to enable him to

mjoin Haryana Government.

14. Appellant in its replication, did not specifically

controvert the issuance of „No Objection Certificate‟.

It is simply stated that "narrative of circumstances

stated by the respondent having accepted the position

of Taxation Inspector with the Government of Haryana

and /or that relating to repayment of loan or to the "No

Objection Certificate" are false, baseless, misconceived

allegations and are denied."

15. There is no specific denial to the effect that

respondent did not apply for any „No Objection

Certificate‟ or no such „No Objection Certificate‟ was

issued. In replication, it is also stated that No

Objection Certificate‟ did not entitle the respondent to

create false documents.

16. So, from the pleadings of the parties, it stand

clearly established, that the appellant has not

specifically denied the issuance of „No Objection

Certificate‟ nor it took the plea that „No Objection

Certificate‟ issued by it, is a forged document.

17. Respondent has placed and proved on record his

application, seeking „No Objection Certificate‟ which is

Ex.DW-3/F1 dated 28th September, 2000. In pursuance

of this application, he was issued „No Objection

Certificate‟ vide letter dated 28th September, 2000,

which is Ex.DW-3/F2, duly signed by A.S.Rajouria,

Personal Manager of appellant‟s company, who has

also been examined by the respondent, as his witness

as, DW-4.

18. DW-4 A.S.Rajouria, in his examination-in-chief has

stated that he has not issued any certificate/NOC to

Sh.Jai Bhagwan certifying his date of joining dated 11th

April, 2001 and Ex.DW3/F2 does not bear his

signatures. However, in the same breath, he admitted,

it as correct that this is a pad of PEC, which is

Ex.DW3/F2 and on 28th September, 2000, he was

working as personal manager, PEC.

19. When respondent appeared in the witness box, he

proved this „No Objection Certificate‟ Ex.DW-3/F2. It

was no where put to the respondent that this „No

Objection Certificate‟, Ex.DW3/F2 does not bear

signatures of Mr.A.S.Rajouria or the same has been

forged by him (respondent).

20. Assuming for arguments sake, that signatures of

DW-1 Mr.A.S.Rajouria on Ex.DW3/F2 are forged one,

but he admits that, Ex.DW3/F2, is a pad of appellant

company. There is no allegation that respondent has

forged this pad.

21. I have compared the disputed signatures of DW-4

Mr.A.S.Rajouria on Ex.DW3/F2, with his admitted

signatures on his deposition recorded by the trial

court.

22. I find that both these signatures are similar and

appears to be of one person alone.

23. Under these circumstances, from the entire

evidence on record, I come to the conclusion that there

is nothing on record to show that respondent has

received double benefits in respect of any item from

two different departments for the same period.

Moreover, appellant has admitted in para 10 of the

plaint, that during the period from 4th October, 2000 to

17th January, 2001, respondent continued to attend the

office of appellant company, except only on three days.

Thus, it is not the case of the appellant company that

respondent attended another employment during

period he remained in service of appellant company. It

is also admitted case of the appellant that respondent

applied for VRS and he was granted VRS and as

already stated above as appellant itself has issued „No

Objection Certificate‟ to the respondent, now appellant

cannot change its stand.

24. Under the circumstances, I do not find any

infirmity or ambiguity in the impugned judgment of

trial court and the present appeal is not maintainable.

The appeal is accordingly dismissed.

25. No order as to costs.

26. Trial court record be sent back.

May 27, 2009                              V.B.GUPTA, J.
Bisht