S.C.Dubey vs Union Of India & Ors.
2012 Latest Caselaw 3878 Del

        *       IN THE HIGH COURT OF DELHI AT NEW DELHI


%                              Date of Decision: 04.07.2012


+               CM No.2160/2012 in W.P.(C) No.6433/2010


S.C.Dubey                                                 ...     Petitioner

                                           versus

Union of India & Ors.                                     ...     Respondents


Advocates who appeared in this case:

For the Petitioner                     :      Mr.C.Hari Shanker, Mr.Jagdish &
                                              Mr.S.P.Panda, Advocates

For Respondent Nos.1 to 4              :      Mr.V.S.R.Krishna, Advocate

For Respondent Nos.5 to 8              :      Mr.Ajit Singh, Advocate



CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

ANIL KUMAR, J.

*

CM No.2160/2012

1. This is an application by the respondent No.5/Applicant under

Section 151 of the Code of Civil Procedure seeking production of

additional documents and calling the original file pertaining to the

representations of the petitioner.

2. The abovenoted writ petition has been filed by the petitioner

against the order dated 12th July, 2010 passed by the Central

Administrative Tribunal, Principal Bench in O.A No.655/2008. The O.A

No.655/2008 was filed by the applicant praying for quashing of

memorandum dated 14th February, 2002 and for setting aside the order

dated 19th October, 2006 passed by the Central Administrative

Tribunal, Principal Bench, New Delhi in O.A No.2259/2006.

3. The petitioner had earlier filed O.A No.2259/2006 on the basis of

memorandum dated 14th February, 2002 wherein he was assigned

seniority in IOW Grade I with effect from 17th June, 1991. Another O.A

No.782/2001 was also filed contending, inter-alia, that Rajpal Singh

and others had not passed promotional course of IOW Grade-III,

therefore, their promotions were not to be considered on regular basis

and they were to be considered as on adhoc basis. Reliance was also

placed on a letter dated 11th July, 2002 stating that the name of Rajpal

Singh and others appearing in letter dated 5th September, 1990 could

not be considered as regular as they had not passed the promotional

course.

4. The arguments in this matter were partly heard on behalf of the

petitioner on 21st September, 2011, 3rd October, 2011 and the matter

was adjourned to 9th November, 2011. On 9th November, 2011 the case

could not be preceded as no one had appeared on behalf of the

respondents. No one again appeared on behalf of respondents on 16th

November, 2011.

5. The Court on hearing the arguments on behalf of the petitioner,

however, could not conclude the matter as the counsel for the

respondents, including the respondent Nos.5 to 8, had not been

appearing.

6. On 29th November, 2011 the counsel for the respondent nos. 5 to

8 appeared, however, no reasons for non appearance on earlier dates

were disclosed. The matter was again heard on 29th November, 2011

and on 30th November, 2011. After hearing the pleas and contentions of

the respondent Nos.5 to 8, they were directed to file a brief synopsis

indicating their propositions with reference to page numbers of the

pleadings and documents on record.

7. The matter was thereafter, taken up on 6th January, 2012,

however, the counsel for the respondents did not appear nor filed a brief

synopsis in terms of order dated 30th November, 2011.

8. Instead of filing the short synopsis, the respondent

no.5/applicant thereafter, filed the abovenoted application for

producing the additional documents. This Court, while issuing the

notice on the application of the respondent No.5/applicant, had noted

that the application prima facie does not disclose any sufficient reason

for not producing these documents earlier.

9. After 17th September, 2012, the case has been adjourned from

time to time on account of delaying tactics adopted by the respondents

as the counsel for the respondents Nos.1 to 4 also did not file any reply.

10. Today again it transpired that the replies were not filed by

respondent Nos.1 to 4 within time because of which the reply on behalf

of the respondent nos. 1 to 4 could not be placed on record. In the

circumstances, the counsel for respondent Nos.1 to 4 was directed to

give a copy of the reply filed on behalf of respondent Nos.1 to 4 which

has been perused by this Court.

12. By the above noted application, the respondent No.5/applicant

seeks to produce the copy of letter dated 5th September, 1990; letter

dated 25th September, 1990 and the alleged proceedings conducted by

respondent Nos.1 to 4 dated 17th February, 2001 regarding the letter

dated 25th September, 1990 and photocopies of a document as

annexure R-3 dealing with the alleged allegation that the letter dated

25th September, 1990 referred to in the correspondence is a fabricated

document made from letter dated 5th September, 1990. The annexure

P3 also contain an extract of file, allegedly related to petitioner's

representations and the claims dealt with by Headquarters, Western

Railway, Mumbai. According to applicant these facts are relevant and

were relevant even before the Central Administrative Tribunal,

Ahmedabad in O.A No.782/2001.

13. The respondent No.5/applicant has contended that the letter

dated 11th July, 2000 issued after passing of order dated 5th September,

1990 was deliberate and was an attempt to help the petitioner.

14. The respondent No.5/applicant has contended that the letter

dated 25th September, 1990 is forged as it shows Rajpal Singh as ad-

hoc and the fact that the records of Rajpal Singh have been misplaced

is rather deliberate. According to the applicant, the petitioners have,

therefore, not made the affected persons as parties and memo dated

14th February, 2002 was never served to the affected persons.

15. The applicant/respondent No.5 has contended that he is

constrained to file this application now under the abovenoted

circumstances and to reveal the facts which have never been revealed

by respondent Nos.1 to 4 in earlier O.As. The respondent

No.5/applicant reiterated that the letter dated 25th September, 1990 is

a forged letter which has been prepared by folding the letter dated 5th

September, 1990 in such a manner as to delete the names of four

persons from the list of 11 persons in the letter dated 5th September,

1990 and by also folding the serial number of letter dated 5th

September, 1990 so that the serial number does not appear in the letter

dated 25th September, 1990.

16. The application is contested by the petitioner contending, inter-

alia, that the application is an abuse of the process of law and is a

deliberate attempt to mislead the Court with a view to derail the present

proceedings.

17. The petitioner/non-applicant contended that a non issue is being

sought to be raised now on the basis of the documents which were

never part of the record before the Central Administrative Tribunal. It is

asserted that no reason, much less sufficient reason, has been given for

not producing these records earlier. The applicant has not even

disclosed that he was not aware of these documents earlier. The

petitioner/non-applicant contended that despite the direction to file

synopsis after the arguments were concluded by the petitioner, the

respondent No.5/applicant did not comply with the order and after

remaining absent on a number of occasions, has filed the present

application. The attempt in the facts and circumstances seeking to

produce the alleged documents is without sufficient cause and the

application is an abuse of the process of Court and reflects complete

lack of bonafide on the part of the applicant.

18. The petitioner/non-applicant also contended that the applicant is

attempting to file selective documents and suppressing others so as to

deliberately derail the present proceedings. The non-applicant

contended that confusion is being sought to be created by the present

application as to whether Rajpal Singh and five other persons named in

the office order dated 5th September, 1990 had been appointed on ad-

hoc or on regular basis, which had been set at rest by office order dated

26th May, 1989 whereby 12 persons had been appointed as IOW Grade

II. Out of these, five persons that is Sh.Raj Pal Singh, Sh.Amar Bhan,

Sh.Dilip Singh Chhabara, Sh.Ranjeet Singh and Sh.Vasavada Kakaria

were promoted on ad-hoc basis. The petitioner/non-applicant

contended that there was no subsequent letter promoting the said

persons on regular basis to IOW Grade-II and in the circumstances the

entire controversy now sought to be raised by the respondent

No.5/applicant as to whether the said persons were promoted as IOW

Grade-II on adhoc or on regular basis does not even merit consideration

in view of the contents of their appointment orders.

19. It is also contended by the petitioner/non applicant that the

respondent no.5 has already retired and will not be impacted by the

controversy now sought to be raised by the applicant. According to the

petitioner the respondent no.5 is continuing a proxy litigation on behalf

of others.

20. The petitioner/non-applicant further contended that the contents

of the appointment orders of these persons cannot be modified and

varied on the basis of the letter dated 5th September, 1990 and 25th

September, 1990 on the ground that the letter dated 25th September,

1990 has been fabricated from the letter dated 5th September, 1990 by

allegedly making manipulation in the same. The petitioner/non-

applicant further stated that the letter dated 5th September, 1990 was

issued by oversight stipulating that all 12 persons were promoted by

letter dated 26th May, 1989. The person who issued the letter dated 5th

September, 1990 realized the mistake and had, therefore, specifically

issued the letter dated 25th September, 1990 with respect to the

persons who had been promoted on adhoc basis vide letter dated 26th

May, 1989 but who had been shown in the earlier letter dated 5th

September, 1990 as having been promoted on regular basis. The

petitioner/non-applicant in reply also produced the letter dated 30th

October, 2000 referring to the letter dated 25th September, 1990

whereas the case of the respondent No.5/applicant and respondent

Nos.1 to 4 now is that the copy of letter dated 25th September, 1990 was

first received in 2001 by the respondent nos. 1 to 4 along with the

representation received from the petitioner.

21. Despite the opportunities given repeatedly, the respondent Nos.1

to 4 failed to file the reply within the time granted by this Court. The

reply was finally filed which could not be placed on record as it was not

filed within the time granted by this Court. Therefore, the Court has

taken a copy of the reply filed by the respondent Nos.1 to 4 to the

application of the respondent No.5/applicant and perused the same.

22. The respondent Nos.1 to 4 have contended that on perusal of the

Divisional file, it is seen that the letter dated 5th September, 1990 is

available, however, the letter dated 25th September, 1990 is not

available on the file.

23. The other allegations made by the petitioner/non-applicant in

reply to the application of the respondent no.5/applicant have however,

been denied by respondent Nos.1 to 4. Rather the allegations made by

respondent No.5/applicant have been supported in a way by

respondent Nos.1 to 4.

23. The learned counsel for the respondent No.5/applicant was

confronted with the copy of letter dated 25th September, 1990 as to how

it can be forged, if the signatures on the letter dated 25th September,

1990 and on 5th September, 1990 are genuine, which has not been

denied by the counsel for the respondent No.5/applicant also though

now the plea of the respondent nos. 1 to 4 is that the said letter is now

not available on their record.

24. Perusal of the letter dated 5th September, 1990 and 25th

September, 1990 unequivocally show that the letter dated 25th

September, 1990 could not be made from the letter dated 5th

September, 1990 and the alleged enquiry also appears to had been

conducted to support the allegation of the applicant/respondent no.5

and others who would benefit from the same. In any case, the real issue

is whether those five persons could be promoted on regular basis or ad-

hoc basis as the allegations are that they had not qualified the relevant

examination. In the circumstances, whether the letter dated 25th

September, 1990 could be genuine or not could be ascertained from the

fact whether these five persons had qualified the relevant examination

or not. The respondent nos. 1 to 4 have not produced the relevant

record nor the applicant/ respondent no.5 wants to refer to the record

about the examination being qualified by those five persons or not. In

the circumstances, it is apparent that the respondent no.5 is trying to

carry on a proxy litigation as the counsel for the applicant has admitted

that the applicant has already retired and this controversy will not

impact him now.

25. The allegations now made by the learned counsel for the

respondent No.5/applicant that the letter dated 5th September, 1990

was folded vertically so as to conceal the serial number and horizontally

also so as to conceal certain names cannot be accepted because when

the learned counsel was confronted with the fact that the number of

lines on the pages of both the letters are same and in case a portion of

the letter dated 5th September, 1990 had been folded to conceal the

name of some of the persons, number of lines would have reduced, as

both the letters are on pages which have horizontal line, rather

submitted that the additional lines must have been drawn later on by

the person who forged the letter. These explanations which are given by

the counsel for the applicant are not reflected anywhere in his

application or even from the alleged enquiry alleged to have been

conducted, a copy of which is now sought to be produced by the

respondent No.5/applicant, though the respondent nos. 1 to 4 have not

produced any record.

26. None of the respondents are, however, able to show any sufficient

reason as to why these documents, if they were relevant could not be

produced by the applicant earlier. There is not even any averment that

these documents were not within the knowledge of the respondent

No.5/applicant. The respondent nos. 1 to 4 have also tried to allege that

the copy of letter dated 25th September, 1990 was received by them for

the first time with the representation made by the petitioner in 2001.

This allegation of the respondent nos. 1 to 4 is apparently false as this

letter dated 25th September, 1990 finds mention in a letter on behalf of

the Respondent nos. 1 to 4 which is of 2000. If the copy of the letter

dated 25th September, 2001 was first received by the respondent nos. 1

to 4 in 1990, it could not be referred to in another letter of respondent

nos.1 to 4 which is on record and which is of the year 2000. Apparently,

the pleas raised by the respondent nos. 1 to 4 in this regard are not

sustainable.

27. The letter dated 25th September, 1990 was referred to by the

petitioner in his representation dated 19th January, 2001, a copy of

which was also filed along with the petition filed before the Central

Administrative Tribunal almost a decade back. If these letters were

referred to, there was no reason for the respondent No.5/applicant not

to have made enquiries about these letters when the replies were filed

before the Tribunal. No cogent reason has been disclosed as to why

only after the Tribunal had decided the matter and thereafter the writ

petition having been filed in 2010 and after the conclusion of the

hearing by the petitioner and the applicant not filing the written

synopsis despite the opportunity given to him a number of times, the

alleged enquiries were conducted by the respondent no.5/applicant who

has since retired and the present controversy does not impact him now.

Apparently, the applicant is carrying on proxy litigation on behalf of the

others and the sole aim is to delay the disposal of the writ petition. The

documents now sought to be produced, therefore, should not be allowed

to be taken on record and allow the applicant to start new

controversies.

28. Apparently, the alleged enquiry alleged to have been conducted by

the respondent Nos.1 to 4 to infer that the letter dated 25th September,

1990 has been forged from letter dated 5th September, 1990 had been

done at the behest of the interested persons and the alleged inference

drawn in that are palpably incorrect. In any case, if there was a doubt

about the veracity of the letter dated 25th September, 1990, the same

should have been raised at the appropriate stage. The respondent nos.

1 to 4 and the applicant cannot be allowed to raise these controversies

now at such a belated stage. The respondent no.5/applicant has not

been able to show any sufficient reason for seeking production of these

documents at this stage and re-open the whole controversy on behalf of

other persons at this belated stage.

29. In the circumstances, the application is nothing but an attempt

by the respondent No.5/applicant to delay the disposal of the case and

in the circumstances this Court has no option but to dismiss the

application. For the foregoing reasons, we do not find any ground to

allow the application which is, therefore, dismissed with a cost of

Rs.30,000/- payable by the respondent no.5 to the petitioner. Cost be

paid within four weeks.

W.P.(C) No.6433/2012

List for hearing on 14.08.2012.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

JULY 04, 2012 vk