C.D. Singh vs Indian Oil Corporation Ltd.
2012 Latest Caselaw 5986 Del

*          HIGH COURT OF DELHI: NEW DELHI

                                            Judgment Reserved on: September 14, 2012
     %                                      Judgment Pronounced on: October 5, 2012

+               R.P. No. 695/2011 in W.P. (C) No. 5114 of 2005

         C.D. SINGH                                               ..... Petitioner
                                Through         Mr.Ranjan Mukherjee, Adv. with
                                                Mr. S. Bhowmick, Adv.

                              versus

         INDIAN OIL CORPORATION LTD.          ..... Respondent
                       Through Mr.V.N. Koura, Adv. with
                               Ms. Paramjeet Benipal, Adv.

CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By this order I propose to decide the review application filed by the respondent under Section 114 read with Section 151 CPC for review of the order dated 30th September, 2011 passed by this court in the above said matter.

2. The above mentioned writ petition was allowed by the judgment dated 14th February, 2011. The operative portion of the order in paras 30, 31 and 32 reads as under:

"30. It is a matter of fact that the adverse remark passed was not communicated to the petitioner which is as per the rules of the respondent was a major penalty and no enquiry was conducted. Under these circumstances, this

R.P. No. 695/2011 in W.P.(C) No.5114/2005 Page No.1 of 7 Court is of the considered view that adverse entry in the service record needs to be communicated.

31. The petitioner is allowed to make the requisite representation in relation to its upgradation. In case his representation for upgradation of entry is allowed, as per his service record, he may get benefit in his pension, medical facilities and he will also get arrears.

32. The petitioner shall make a representation for upgradation of his service record for the period from 1966 to 1968 within the period of two months. The respondent is directed to decide the said representation within two months thereafter. If the upgradation is allowed, the respondent is directed to give benefit of higher pension and balance of arrears and to pay the same with 6% p.a. interest."

3. Thereafter, in the month of March 2011 the petitioner filed an application, being C.M.No.4251/2011, seeking clarification of the judgment dated 14th February, 2011 and also for deleting the paragraphs 31 and 32 of the judgment. Notice of the said application was issued to the respondent who did not appear despite of service nor was any reply filed. The same was allowed by order dated 30th September, 2011 after hearing the learned counsel for the petitioner. The following order was passed on 30 th September, 2011:

"This is an application filed by the petitioner seeking clarification of the final order dated 14.02.2011 passed by this Court. Notice of this application was issued to the respondent, who was served, but no one appeared on behalf of the respondent. On 23.09.2011, in the interest of justice, the matter was adjourned for 30.09.2011. Today also, when this application is taken up, no one appears on behalf of the respondent.

R.P. No. 695/2011 in W.P.(C) No.5114/2005 Page No.2 of 7 The contention of the learned counsel for the petitioner is that once the writ petition is allowed and the adverse remarks having been quashed, the making of representation with regard to up-gradation would be an exercise in futility. It is argued by the learned counsel for the petitioner that the petitioner has been litigating with the respondent for the last 37 years and therefore, he is entitled for compensation in view of allowing the writ petition and quashing of adverse remarks to the service records of 1966, 1967 and 1968. His submission is that paras 31 and 32 of the final order be deleted under the said circumstances. After some hearing, I find force in the submission of the counsel. The order dated 14.02.2011 is reviewed accordingly."

4. Thereafter, in November 2011, the respondent filed the present application under Section 114 read with Section 151 CPC for review of the order dated 30th September, 2011. It is stated in the application that the respondent filed an appeal against the judgment passed on 14 th February, 2011 which was taken up by the Division Bench on 5 th July, 2011. The said following order was passed:

"Be it noted, the learned Single Judge though has referred to the said position yet actually based his conclusion and issued the direction contained in paragraph No.32 on the basis of decision rendered in Dev Dutt v. Union of India and Ors.; AIR 2008 SC 2513. In view of the aforesaid, we only clarify that the direction is issued on the basis of the principle laid down in the case of Dev Dutt (Supra) and not on the basis of the Rules that have been referred to by the learned Single Judge. We may also note with profit that the rules have been referred to for the sake of completeness. With aforesaid clarification, the appeal is disposed of. As the said clarification eventually would not cause prejudice to the

R.P. No. 695/2011 in W.P.(C) No.5114/2005 Page No.3 of 7 respondent, there is no need to issue notice on the question of limitation."

5. It is also stated by the respondent that after passing the said judgment, a representation was made by the petitioner to the respondent which was replied by letter dated 3rd May, 2011. Thus, according to the respondent the matter stood closed with the said reply and the question of filing the clarification application by the petitioner after passing the judgment did not arise. It is further stated that since judgment dated 14th February, 2011 was clarified by the Division Bench, therefore, order passed on 30th September, 2011 be recalled.

6. It is also stated in the review application that the petitioner did not disclose about the filling of the appeal to the Court. Earlier the petitioner sought the same relief in W.P. (C) No.2641/1990 which was granted by the Court except the liberty was granted to the petitioner to challenge the correctness of the record and to advance his contention that the average and below average remarks amount to a major penalty. Therefore, it is contended that writ ought not to have been allowed at the first instance and similar is the position of C.M. No.4251/2011 and the same was rendered infrcutuous since the respondent already gave the reply to the representation made by the petitioner.

7. In the counter affidavit filed by the petitioner, it is stated that the direction given in para 32 of the judgment dated 14th February, 2011 relates to making of a representation by the petitioner for up-gradation of his service record for the period from 1966 to 1968 which was passed by this Court after coming to a categorical finding in paragraph 24 of the judgment that the adverse remarks for the years 1966, 1967 and 1968 could not have

R.P. No. 695/2011 in W.P.(C) No.5114/2005 Page No.4 of 7 been acted upon without the same being first communicated to the petitioner which was grounded being in violation of Rule 31 of the Conduct, Discipline and Appeal Rules, 1980 as also based upon the decisions of the supreme Court in AIR 1979 SC 1622, Gurdial Singh Fijji v. State of Punjab and others , (2009) 16 SCC 146, Abhijit Ghosh Dastidar v. Union of India and others and Dev Dutt (Supra). The common thread runs through the Rule as well as the three judgments.

8. It is further stated that the respondent is taking contradictory stand by way of this petition in seeking re-imposition of paragraphs 31 and 32 of the judgment dated 14th February, 2011 whereas in the L.P.A. No. 558/2011 they had only challenged paragraph 32 of the said judgment. The respondent want to deny the benefit flowing out of the judgment dated 14 th February, 2011 by contending that the petitioner only had the right of making representation, which he did and which was rejected and thus nothing can be done today. The resultant effect of the judgment dated 14th February, 2011 coupled with the order dated 5th July, 2011 passed in LPA No. 558/2011 leaves no doubt that the adverse remarks of the year 1966, 1967 and 1968 cannot be taken into consideration and the petitioner is entitled to arrears and his entitlement is required to be worked out on the basis of his being in Grade-"B" as on 31st December, 1970 since paragraphs 31 and 32 of the judgment dated 14th February, 2011 have been deleted resulting into implementation of the Patna High Court judgment dated 30th March, 1988 in the case titled Indian Oil corporation vs. State of Bihar & Ors.

9. After hearing the present application filed by the respondent, it appears to the Court that the respondent does not want to give any benefit and compensation sought by the petitioner in view of the judgment dated

R.P. No. 695/2011 in W.P.(C) No.5114/2005 Page No.5 of 7 14th February, 2011 coupled with the order dated 5th July, 2011 passed in LPA No.558/2011 despite of representation made by the petitioner who is, no doubt, entitled to the benefit after deletion of adverse remarks of the years 1966, 1967 and 1968. The respondent does not want to give any benefit by way of compensation despite the request of the petitioner to accept even 20% of the arrears of his entitlement, in case the matter is treated as settled between the parties. The said proposal of the petitioner was not acceptable to the respondent when it was made during the course of hearing of present applications.

10. I find merit in the submission of the petitioner that the order dated 5th September, 2011 in LPA No.558/2011 was not disclosed as in the said LPA, no notice was issued to him and therefore, he had no knowledge of the said order and thus could not bring it to the knowledge of this Court when the order dated 30th September, 2011 was passed. Therefore, the respondent is not entitled to take any benefit out of it.

11. It is a matter of fact that the respondent was fully aware about the filing of review petition filed by the petitioner, however, no one appeared on behalf of the respondent before Court on 23rd September, 2011 and on 30th September, 2011 the application filed for the clarification was allowed after hearing the learned counsel appearing on behalf of the petitioner. The respondent was supposed to appear before the Court when the petitioner's review petition was listed and it ought to have been pointed out about the factum of filing of an appeal before the Division Bench by the respondent.

12. It is evident from the record of the case that the adverse remarks were not communicated to the petitioner who had been litigating with the respondent for more than 37 years. Thus, the challenge made by the

R.P. No. 695/2011 in W.P.(C) No.5114/2005 Page No.6 of 7 petitioner for correctness of the service record was justifiable and I agree with the learned counsel appearing on behalf of petitioner that below average remarks amounts to a major penalty. The petitioner under these circumstances is entitled for benefit for the same.

13. All the points raised by the respondent have been considered. In view of the above, in the absence of extenuating circumstances, I find no reason to interfere with order passed on 30th September, 2011. The review application is therefore dismissed being devoid of any merit.

MANMOHAN SINGH, J.

OCTOBER 05, 2012

R.P. No. 695/2011 in W.P.(C) No.5114/2005 Page No.7 of 7