Delhi High Court
Delhi Transport Corporation & Anr vs Shri. Yashpal Sharma on 2 May, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 02.05.2011
+ R.S.A.No. 157/2007 & CM No. 7959/2007
DELHI TRANSPORT CORPORATION & ANR.........Appellants
Through: Mr. J.S. Bhasin & Ms. Rashmi
Priya, Advocates.
Versus
SHRI. YASHPAL SHARMA ..........Respondent
Through: None.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. This appeal has impugned the judgment and decree dated
25.01.2007 which had endorsed the order of the trial judge dated
14.07.2004 wherein the suspension order passed against the
plaintiff Sh. Yash Pal Sharma had been revoked. The punishment
imposed upon him vide order of the disciplinary authority dated
27.08.1991 as also of the appellate body dated 27.07.1992 was
held to be illegal and invalid; the Department/ Delhi Transport
Corporation (DTC) had been directed to pay the salary dues of the
plaintiff treating him as if he had never been under suspension.
2. The plaintiff Sh. Yash Pal Sharma was appointed as an
Assistant Body Fitter in the defendant corporation in November,
1981. He completed his period of probation satisfactorily.
Defendant no. 1 was known as G.N.I.T; it was taken over after the
enactment of the Delhi Road Transport Authority Act 1950 by the
defendant corporation. The conditions of appointment and service
of the plaintiff were governed by the Regulations framed therein
i.e. Delhi Road Transport Authority (Conditions of Appointment &
Services) Regulations, 1952. The procedure for holding
disciplinary proceedings was set out under Regulation 15. On
01.02.1990, defendant no. 2 suspended the plaintiff as also one
Sh. Gurmeet Singh on the allegation that there was an alleged
discrepancy in the actual weight and the stock as per ledger
maintained by scrap yard in respect of unserviceable "Leaf" and
Leaf Springs; tampering of records and vouchers were the
additional allegation. It was alleged that the allegations were
vague as no proper details and particulars about the allegations in
question were given. Disciplinary proceedings took place for as
long as 17 months. Charge sheet was issued only on 19.07.1991.
Plaintiff submitted his report on 25.07.91; he asked for certain
documents; documents were not furnished. Vide letter dated
06.08.91, the plaintiff was informed that the Purchase Officer, Sh.
B.B. Jain, had been appointed as an Enquiry Officer. The plaintiff
gave reply to the said letter vide reply dated 12.08.1991 stating
that he had never refused to inspect the record and documents;
unless the documents mentioned in his representation dated
26.07.91 were available on case file, it would be futile to inspect
the file. Circular dated 28.05.80 was adverted to. However, no
opportunity was granted to the plaintiff. Enquiry was held by Sh.
B.B. Jain on 12.08.91 and 16.08.91. In spite of representations of
the plaintiff, no documents were furnished to him. Memorandum
dated 21.08.91 was sent to the plaintiff to render explanation as to
why the proposed punishment of the stoppage of the next due
increments with cumulative effect be not imposed. Plaintiff
replied vide his representation dated 22.08.91. Without recording
proper reasons, punishment was imposed upon the plaintiff; his
appeal was rejected on 27.08.91 which was also again without any
reason. Entire proceedings were illegal and void. They were
violative of the rules of natural justice. Suit was filed.
3. Defendants contested the suit. In the written statement,
objection was that the suit is barred under Section 41 (h) of
Specific Relief Act; it was pointed out that the discrepancies of the
actual weight and the stock had been noted in the two lots
weighted on 24.10.90, 25.10.90, 27.01.90, 29.01.90 and 30.01.90
which totals 1,38,940 kgs whereas the ledger shows a balance of
1,41,855 kgs.
4. On the pleadings of the parties, the following three issues
were framed.
1. Whether any cause of action has accrued to the plaintiff to file the
present suit? OPP
2. Whether plaintiff is entitled to the relief as prayed for in the present suit?
OPP
3. Relief.
5 Oral and documentary evidence was led.
6. The plaintiff was able to prove that the acts of the defendant
were arbitrary and illegal. The findings of the enquiry officer
were violative of natural justice. They were set aside. The suit of
the plaintiff was decreed.
7. In appeal, this was confirmed by the first appellate court.
8. This is second appeal. It had been admitted and on
29.05.2007, following substantial questions of law were
formulated:-
1. Whether the jurisdiction of the Civil Court is barred in view of
Section 33-C of the Industrial Disputes Act, 1947?
2. Whether the principles of natural justice and specially the principle
of audi alterm partem were not followed by the Enquiry Officer
during the course of enquiry proceedings?
9 On behalf of the appellant, it has been urged that the
judgment of the trial court is illegal and arbitrary for the reason
that what the plaintiff was agitated about that he was covered
under an industrial dispute; it was necessarily an „industrial
dispute‟; being an industrial dispute, it could have been raised
only before the Industrial Tribunal; jurisdiction of the civil court
was barred. The impugned judgment is a perversity and is liable
to be set aside. Reliance has been placed upon the judgment
reported in 1989 SCC (L & S) 552 Jitender Nath Biswas Vs. M/s
Empire of India and Ceylone Tea Co. & another as also the second
judgment of the Supreme Court reported in (2005) 12 SCC 152
Rajasthan State Road Transport Corporation & others Vs. Lokesh
Kumar Pareek to support this submission.
10 None has appeared for the respondent.
11 The argument now urged before this Court was never a
defence taken in the written statement. Written statement has
been perused. There is not a whisper in the written statement that
the present suit is not maintainable as being an industrial dispute
it is outside the purview of the civil court. Even before the first
appeal court, in the grounds of appeal there was no such specific
averment; it was not averred that the petitioner has raised an
industrial dispute. This ground cannot now be taken in the second
appellate court. A ground not urged in the two courts below
cannot be permitted at the second appellate stage. This was held
by the Apex Court in a judgment reported in (2001) 3 SCC 179
Santosh Hazari Vs. Purushottam Tiwari wherein it was held that a
completely new point cannot be raised before the High Court for
the first time; the question that is involved in the case must have
its foundation in the pleadings.
12 There are two concurrent findings of fact against the
appellant. Both the two courts below have held that the order of
the Enquiry Officer is liable to be set aside as the acts of the
defendant were arbitrary, illegal, unjust and against the principle
of natural justice. The trial Judge whose finding was endorsed by
the first appellate court had relied upon the proposition laid by
the Supreme Court in Kashinath Dikshitha Vs. UOI 1986 (3) SCC
229.
13 In a second appeal, findings of fact cannot be interfered
until and unless there is perversity. The argument now urged was
never raised before the trial court or before the first appellate
court; it cannot be raised at the second appeal stage. Had this
argument been urged, the plaintiff would have been granted an
opportunity to rebut/reply to the same.
14 No perversity has been pointed out. Both the two fact
finding courts below have held that the enquiry was opposed to
the principles of natural justice. Substantial questions of law are
accordingly answered in favour of the respondent and against the
appellant. There is no merit in the appeal. Appeal as also pending
application are dismissed.
. INDERMEET KAUR, J.
MAY 02, 2011
SS/A
