Delhi High Court
J.P.Singh vs Govt.Of Nct Of Delhi And Ors on 27 August, 2012
Author: Suresh Kait
$~65
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 27th August, 2012
+ W.P.(C) 5271/2012
J.P.SINGH ..... Petitioner
Through: Mr. Apurb Lal, Ms. Kumari Alka and
Mr. Daleep Singh, Advs.
versus
GOVT.OF NCT OF DELHI AND ORS ..... Respondents
Through: Mr. Akshay Goel, Proxy Counsel for
Mr. Vinod Wadhwa, Adv. for R1.
Mr. Sandeep Prabhakar and Mr. Ravi Sharma,
Advs. for R2 & R3.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
CM. NO. 10768/2012
Exemption allowed subject to just exceptions.
CM disposed of.
+ W.P.5271/2012
1. Ld. Counsel appearing on behalf of the respondent on advance notice
has informed this Court that the petitioner has claimed the same relief by
filing a Civil Suit no. 35/2012 as under:-
"In pith and substance case pleaded by plaintiff is that he was
appointed / posted on 1/6/1984 in DESU through U.P.S.C as a
Class-I Officer but consequent upon restructuring of DVB
services of plaintiff were transferred against his wishes to
DISCOM-I known as BSES Yamuna Power Ltd. on 1/7/2002 in
terms of provisions of Delhi Electricity Reforms Act, 2000 and
Tripartite Agreement executed between Govt. of NCT of Delhi,
Vidyut Board and DVB Junior Engineers Association on
28/10/2000 which, inter-alia provided as under:-
"3) B) The terms and conditions of service upon
transfer to the corporate entities, such as
promotions, transfers, leave and other allowances,
etc. regulated by existing regulations / service
rules e.g. FR/SR will be guaranteed to continue the
same and any modifications shall be by mutual
negotiations and settlement with recognised unions
/ associations without decrement to the existing
benefits.
...................................................................
...................................................................
...................................................................
F) All benefits of the services rendered by the
employees in the Board as on the date of
restructuring i.e. the effective date shall be
protected and shall be given full effect.
G) The period of the service of the employees
under the Board and under the Corporate entity
shall be treated as continuous service for the
purposes of all service benefits and terminal
benefits payable to the personnel.
...................................................................
...................................................................
...................................................................
R) In the event of any dispute / difference arising
out of this Tripartite Agreement efforts will be
made to resolve amicably or through the Lt.
Governor (Delhi) as an arbitrator or his nominee
as appointed by him. Courts at Delhi / New Delhi
shall have the jurisdiction in the event of any
lligation..................."
In this background, case as pleaded by plaintiff is that despite
transfer of his services to BSES / DISCOM-I w.e.f 01.07.2002,
he still continues to be a government servant governed by FR /
SR, CCS Conduct Rules and CCS (CCA) Rules, 1965 and thus a
private person of BSES has no authority to exercise the powers
of prosecuting the plaintiff departmentally. As submitted BSES
/ its Officers has no authority under CCS (CCA) Rules, 1965 to
initiate departmental proceedings against plaintiff and in view
of clause (R) of Tripartite Agreement dated 28/10/2000 only the
Lt. Governor (Delhi) or his nominee can take such action
against plaintiff. Also it is submitted on behalf of plaintiff that
as per this very clause, courts at Delhi / New Delhi have
jurisdiction in the event of any litigation and, as such, this
Court has the jurisdiction to try the suit. Further it is submitted
that as per clause (M) of this Tripartite Agreement only the
disciplinary proceedings pending at the time of restructuring of
DVB, are to be dealt with by successor entities like the plaintiff
but not the future disciplinary proceedings as in this case."
2. Vide order dated 15.03.2012, ld. Senior Civil Jude/Cum/RC (East)
opined as under:-
Thus in view of above discussion it is concluded that w.e.f
1.7.2002 plaintiff ceased to be a public / government servant
and became an employee of BSES Yamuna Power Ltd. & BSES
Yamuna Power Ltd. being employer of plaintiff is authorized to
take disciplinary action against plaintiff but BSES Yamuna
Power Ltd. will be bound to give all the benefits to plaintiff
which have been given to plaintiff by virtue of provisions of
Delhi Electricity Reforms Act, 2001, Delhi Electricity Reforms
(Transfer Scheme) Rules, 2001 and Tripartite Agreements.
What has been granted to plaintiff are the financial benefits and
security of service etc. but not absolute immunity from
disciplinary action at the hands of BSES Yamuna Power Ltd.
who is employer of plaintiff w.e.f 1.7.2002. In my considered
opinion, BSES Yamuna Power Ltd. is competent to take
disciplinary action against plaintiff after following the
procedure laid down CCS (CCA) Rules, 1965. Such powers, in
the facts and circumstances of this case, can be exercised
without their being specific delegation of such powers by the
authority which initially appointed the plaintiff. In fact, with
the coming into operation of Delhi Electricity Reforms
(Transfer Scheme) Rules, 2001 all such powers with the initial
appointing authority of plaintiff ceased to exist and they were
acquired by BSES Yamuna Power Ltd. being the new employer
of the plaintiff but keeping the service benefits / conditions at
par as they existed at the time when plaintiff was employed with
DESU/DVB. DVB ceased to existed w.e.f 1.07.2002.
In view of clause 3) L) of Tripartite Agreement executed on
28/10/2000, it cannot be said that there exist no contract of
service between plaintiff and BSES Yamuna Power Ltd. In fact
there exist contract of personal service between plaintiff and
BSES Yamuna Power Ltd. A contract of personal service
includes all matters relating to the service of employee e.g.
confirmation, suspension, transfer, termination etc. By the
relief as are sought by plaintiff in this suit, plaintiff is seeking
enforcement of a contract of personal service and Civil Court
has no jurisdiction to grant such reliefs as held by Hon'ble
Supreme Corut of India in case law report as Pearlite Lioners
(P) Ltd. v. Manorama Sirsi (Supra).
An injunction against holding a departmental enquiry in the
facts of this case would clearly amount to imposing an
employee on an employer or to enforcement of a contract of
personal service, which is not permissible under the law.
However plaintiff can raise his grievances against the
disciplinary proceedings, if at the end of the enquiry he is found
guilty and awarded punishment, through suit of appropriate
nature or other legal proceedings available to him either under
the service rules or otherwise. In view of above detailed
discussion, reliefs as prayed for by plaintiff in the suit or
application u/o 39 Rule 1 & 2 r/w S. 151 CPC cannot be
granted to him as the same are barred under the provisions of
S. 14 and 41 of Specific Relief Act, 1963. As such, plaint merits
rejection and application of plaintiff u/o XXXIX Rule 1 & 2 r/w
S. 151 CPC is liable to be dismissed. Ordered accordingly.
Applicants stands disposed off accordingly. Parties to bear
their own cost. File be consigned to RR.
3. Petitioner being aggrieved challenged the aforesaid order vide RCA
No. 45/2012, wherein application for stay of the operation of the suspension
order, extension of suspension and enquiry proceedings initiated against the
petitioner was dismissed vide order dated 04.08.2012 and the main matter is
pending before the ld. Addl. District Judge, East.
4. In view of the above, I am of the opinion that instant petition is not
maintainable and dismissed as such with no order as to cost.
CM. NO. 10767/2012 (Stay)
Since the main petition is dismissed, instant application become
infructuous and disposed of as such.
SURESH KAIT, J
AUGUST 27, 2012
Jg
