Sannam Bharti vs D.T.C. & Ors.
2013 Latest Caselaw 3541 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                    Date of decision: 12 August, 2013
+                            RFA No.939/2003
      SANNAM BHARTI                                       ..... Appellants
                 Through:              Mr. Anukul Pradhan, Sr. Adv. with
                                       Mr. K.C. Dubey.
                                    Versus
      D.T.C. & ORS.                                      .....Respondents

                         Through:      None.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J

1. This appeal impugns the judgment and decree dated 16 th August, 2003

of the Addl. District Judge of dismissal of suit No.150/2001 filed by the

appellant/plaintiff for recovery of Rs.5 lacs as damages from the respondent

no.1 Delhi Transport Corporation (DTC) and Shri M.K. Sardana the then

Regional Manager (Inter-State) impleaded as respondent/defendant no.2,

Shri S. Sanjay Saxena official of the respondent/defendant no.1 DTC

impleaded as respondent/defendant no.3 and from Dr. V.K. Srivastava,

Chief Medical Officer of the respondent/defendant no.1 DTC impleaded

respondent/defendant no.4. The appeal was admitted for hearing and the

Trial Court record requisitioned. None appeared for the appellant/plaintiff on

9th February, 2012 and 10th February, 2012 when appeal came up for

hearing. The appeal was accordingly dismissed in default of appearance of

the appellant/plaintiff. The appellant/plaintiff thereafter applied for

restoration and which was allowed.

2. None appears for the respondents/defendants today. Need is not felt to

await their presence and the senior counsel for the appellant/plaintiff has

been heard.

3. The appellant/plaintiff instituted the suit from which this appeal arises

on 13th March, 2001 pleading:-

(a). that he was employed with the respondent no.1 DTC since 8 th

November, 1978 as a Driver and was posted at Patparganj

Depot of the respondent/defendant no.1 DTC;

(b). that the appellant/plaintiff obtained leave of five days from the

respondent/defendant no.3 Shri Sanjay Saxena then posted as

Depot Manager, for the period from 17th May, 1996 to 21st

May, 1996;

(c). that though the appellant/plaintiff was to join back duty on 22 nd

May, 1996 but could not do so owing to being unwell and

sought extension of leave on medical ground;

(d). that the appellant/plaintiff reported for duty on 22 nd July, 1996

but the respondent/defendant no.3 asked the appellant/plaintiff

to put his signatures on certain blank papers on the plea that the

same were required in connection with the leave account;

thereafter the appellant/plaintiff was asked to sit outside the

office room of the respondent/defendant no.3 and ultimately in

the evening was asked to leave and await communication for

joining the duty;

(e). that a letter dated 26 th July, 1996 was received by the

appellant/plaintiff asking him to report to the

respondent/defendant no.4 Dr. V.K. Srivastava for medical

examination on 27th July, 1996;

(f). that though the appellant/plaintiff went for such medical

examination but was neither examined nor issued the fitness

certificate;

(g). that the appellant/plaintiff in first week of August, 1996

received another letter asking the appellant/plaintiff to submit

documents in support of his sickness to the

respondent/defendant no.4 on 10th August, 1996;

(h). that though the appellant/plaintiff tendered those documents but

was again asked to wait;

(i). that in this manner the appellant/plaintiff was not permitted to

join duty and was vide letter dated 26 th August, 1996 asked to

consult Psychiatrist of a Government Hospital;

(j). the aforesaid direction was uncalled for and mischievous and a

calculated move to humiliate and harass the appellant/plaintiff

and to prevent him from joining duty;

(k). that though the appellant/plaintiff contacted G.B.Pant Hospital

but which on 5th November, 1996 reported that the

appellant/plaintiff was not found suffering from any psychosis

or any other serious psychopathology;

(k). that the appellant/plaintiff inspite thereof was not permitted to

join duty but again asked to appear before the Medical Board;

(l). that the successor to the respondent/defendant no.3 Shri O.P.

Birdi thereafter issued charge sheet dated 19 th February, 1997 to

the appellant/plaintiff for non-compliance of the direction to

report to the Medical Board;

(m). that the appellant/plaintiff filed CW No.1084/1997 in this Court

and in which vide order dated 9 th April, 1997 the

respondents/defendants were directed to consider the

representation of the appellant/plaintiff;

(n). the appellant/plaintiff thereafter filed another CW

No.4075/1997 and in which vide order dated 30 th August, 1999

the appellant/plaintiff was directed to approach the Psychiatry

Department of All India Institute of Medical Sciences (AIIMS);

(o). that the appellant/plaintiff was found fit and not suffering from

any kind of mental disorder;

(p). that vide order dated 10th February, 2000 in CW No.4075/1997

the appellant/plaintiff was asked to report to the Medical Board

of the respondent/defendant no.1 DTC along with the said

report of AIIMS;

(q). that CW No.4075/1997 was ultimately disposed of vide order

dated 21st February, 2000 with a direction to allow the

appellant/plaintiff to join duty and to pay the entire salary for

the intervening period i.e. from 23 rd July, 1996 till the date of

joining duties;

(r). that the appellant/plaintiff was in compliance thereof permitted

to join duties on 22 nd February, 2000 and also paid all arrears of

salary;

(s). that it was on account of willful and deliberate actions of the

officials of the respondent/defendant no.1 DTC particularly

respondent/defendant no.2 Shri M.K. Sardana and personal

bias, prejudice and vindictive attitude that the appellant/plaintiff

could not join duty for nearly three years;

(t). that owing to the aforesaid the appellant/plaintiff has suffered

extreme hardship, humiliation and an impression was cast upon

the entire staff of the respondent/defendant no.1 DTC that the

appellant/plaintiff was suffering from a mental disorder; that the

appellant/plaintiff was thus subjected to extreme mental torture

and financial hardship, all due to extreme bias, capricious

attitude, indifferent behaviour, malicious actions on the part of

the respondents/defendants no.2 to 4; and,

(u). that the appellant/plaintiff got legal notice dated 2 nd August,

2000 issued to the respondents/defendants claiming damages to

the extent of Rs.8 lacs.

Upon the same being not replied, the suit was filed for recovery of

damages in the sum of Rs.5 lacs.

4. The respondent/defendant DTC contested the suit by filing a written

statement inter alia pleading:

(i). that the appellant/plaintiff in his application dated 22 nd July,

1996 for joining duty had stated that he was suffering from

Bhoot and Prait and was asked to bring documents of his

illness as per the rules of the Corporation and show the same to

the Chief Medical Officer of the respondent/defendant no.1

DTC;

(ii). that the Medical Board could not attend to the

appellant/plaintiff on 8th November, 1996 owing to pre-

occupation and the appellant/plaintiff was accordingly asked to

appear on the next date;

(iii). that similarly after receipt of report of G.B. Pant Hospital the

appellant/plaintiff was again asked to report to the Medical

Board and which the appellant/plaintiff failed to do so; and,

(vi). that similarly the appellant/plaintiff was after receipt of the

report of AIIMS directed to appear before the Medical Board

and was allowed to join duty.

5. The appellant/plaintiff filed a replication inter alia pleading that the

action of the respondents/defendants of asking the appellant/plaintiff to

appear before the Medical Board was without any cause and on one pretext

or the other and was wrong and denying that he gave any application stating

that he was suffering from Bhoot Prait or any other ailment.

6. On the pleadings of the parties, the following issues were framed in

the suit on 26th November, 2001:-

"(1). Whether the suit of the plaintiff is not maintainable in view of the preliminary objection No.1 to 3? OPD (2). Whether the plaintiff is entitled to the damages as claimed? OPP (3). If Issue No.2 is proved in favour of the plaintiff, whether the plaintiff is entitled to the interest? If so, at what rate? OPP (4). Relief."

7. The appellant/plaintiff examined himself only in support of his case.

The respondents/defendants examined respondent/defendants no.2 to 4 as

witnesses in their defence.

8. The learned Trial Court has in the impugned judgment

found/observed/held:-

(I). that the leave applications submitted by the appellant/plaintiff

had been proved as Ex.PW1/D1 to D6 for the period from 16th

May, 1996 to 15th July, 1996, all to the effect that he was ill;

(II). that the appellant/plaintiff after sending all these applications

for leave on medical ground, reported for duty on 22nd July,

1996 without any medical and fitness certificate issued by any

doctor;

(III). that the various memos vide which the appellant/plaintiff had

been directed to report to the Medical Board were proved as

Ex.PW1/D9 to D12;

(IV). that vide endorsement at the back of Ex.PW1/D9, the Medical

Officer of the DTC, after examining the appellant/plaintiff had

asked the appellant/plaintiff to consult Psychiatrist of

Government Hospital and to report to the Medical Board after

10 days; similarly vide memo Ex.PW1/D11 the

appellant/plaintiff was directed to appear before the Medical

Board of the respondent no.1 DTC along with the certificate of

the Psychiatrist of the Government Hospital;

(V). that the report dated 5th November, 1996 of the G.B. Pant

Hospital was required to be produced by the appellant/plaintiff

before the Medical Board;

(VI). that thought the appellant/plaintiff appeared before the Medical

Board on 7th November, 1996 but on account of pre-occupation

of the Board was directed to come back on 8 th November, 1996;

(VII). that the appellant/plaintiff instead of appearing before the

Medical Board on 8th November, 1996 sent report of the G.B.

Pant Hospital directly to the Depot Manager without being

declared fit by the Medical Board;

(VIII).that there was nothing wrong in the conduct of the Medical

Officer asking the appellant/plaintiff on 7th November, 1996 to

come back on the next date;

(IX). that as per the Rules & Regulations, the appellant/plaintiff was

required to submit the report of G.B. Pant Hospital to the

Medical Board and only upon the fitness certificate being

issued by the Medical Board, the appellant/plaintiff could be

allowed to join duty; however the appellant/plaintiff as

aforesaid did not appear before the Medical Board along with

the report of G.B. Pant Hospital;

(X). that the appellant/plaintiff prior to sending the legal notice

dated 2nd August, 2000 had nowhere complained that his

signatures were obtained on any blank papers or that the

application mentioning that he was suffering from bhoot prait

had been fabricated thereon; that had there been any truth in the

same the appellant/plaintiff immediately on receipt of

communication dated 22 nd July, 1996 from the Depot Manager

vide which he was directed to appear before the Medical Board,

would have done so;

(XI). that as per the Rules of the respondent/defendant no.1 DTC the

appellant/plaintiff after admittedly remaining absent from duty

or on leave from 16 th May, 1996 to 22nd July, 1996 on medical

grounds, could not have joined duty without a fitness

certificate;

(XII). that the appellant/plaintiff inspite of having been given

opportunity had failed to comply with the said Rules;

(XIII).that all actions of the respondents/defendants no.2 to 4 being

officials of the respondent/defendant no.1 DTC were in

consonance with the Rules of the DTC;

(XIV).that the appellant/plaintiff has not led any evidence oral or

documentary that his children had to discontinue their studies or

for the purpose of marriage they have became overage on

account of any action of the respondent/defendant no.1 DTC or

its officials or that he was ever called 'Pagal' by any staff of

the respondent/defendant no.1DTC; that there was also no

evidence to establish that the appellant/plaintiff during the said

interregnum had to take any loan;

(XV). that there was no oral or documentary evidence that the

respondents/defendants no.2 to 4 ever entered into any

malicious campaign against the appellant/plaintiff to declare

him insane or under the influence of evil spirits and the said

enquiry was ordered as per the application of the

appellant/plaintiff that he was suffering from Bhoot Prait; and,

(XVI). that even this Court in the writ petition preferred by the

appellant/plaintiff notwithstanding the report of AIIMS

permitted the appellant/plaintiff to join duty only after the

report of the AIIMS had been considered by the Medical Board

of the respondent/defendant no.1 DTC; there was thus nothing

wrong on the part of the respondent/defendant no.1 DTC in,

inspite of the report of G.B. Pant Hospital, directing the

appellant/plaintiff to appear before the Medical Board.

Accordingly the suit was dismissed.

9. The senior counsel for the appellant/plaintiff has instead of finding

any error in the findings of fact reached by the Trial Court has pegged his

case on the argument that the appellant/plaintiff having been admittedly

harassed by being not permitted to join duty for a period of three years and

by being compelled to file two writ petitions in this Court, is entitled to

damages / compensation. Reliance is placed on para 11 of Lucknow

Development Authority Vs. M.K.Gupta AIR 1994 SC 787 to contend that

the appellant/plaintiff is entitled to damages merely for the reason of being

so harassed and having suffered mental agony.

10. Besides the fact that the judgment cited by the senior counsel for the

appellant/plaintiff has been distinguished in U.T. Chandigarh

Administration Vs. Amarjeet Singh (2009) 4 SCC 660 and in Bihar School

Examination Board Vs. Suresh Prasad Sinha (2009) 8 SCC 483, on the

aspect of applicability of the Consumer Protection Act, 1986, I am unable to

find the judgment in Lucknow Development Authority also to be laying

down any such proposition. The senior counsel for the appellant/plaintiff

relies thereon in so far as holding that the authority empowered to function

under a statute, while exercising power discharges public duty; it has to act

to subserve general welfare and common good; in discharging this duty

honestly and bona fide, loss may accrue to any person and he may claim

compensation which may in circumstances be payable; but where the duty is

performed capriciously or the exercise of power results in harassment and

agony then it has to be decided as to who is to bear the loss determined, but

fails to notice that the Supreme Court further held that public administration

involves a vast amount of administrative discretion which shields the action

of administrative authority; but where it is found that exercise of discretion

was mala fide and the complainant is entitled to compensation for mental

and physical harassment, then the officer can no more claim to be under

protective cover. It is thus not as if the Supreme Court has held that merely

because harassment has been caused to someone by administrative action,

the sufferer becomes entitled to damages/compensation; what has been held

is that only where the action is found to be mala fide is the sufferer entitled

to compensation.

11. The matter is placed beyond any pale of controversy in the recent

judgment of the Supreme Court in Municipal Corporation of Delhi Vs.

Uphaar Tragedy Victims Association (2011) 14 SCC 481 where after

noticing a plethora of earlier decisions of the Supreme Court and of the

English and Canadian Courts, it was held in para 54 that it is not proper to

award damages against public authorities merely because there has been

some inaction in the performance of their statutory duties or because the

action taken by them is ultimately found to be without authority of law. It

was further held that with regard to performance of statutory functions and

duties, the Courts will not award damages unless there is malice or

conscious abuse.

12. What has been held by the Supreme Court in relation to statutory

duties, I fail to see, why should not apply to official / public duties also.

13. Reference in this regard may also be made to Common Cause Vs.

Union of India (1999) 6 SCC 667 in para 86 whereof it is held that apart

from tort which may be committed by a private individual, the officers of the

Government would also be liable in damages for their wrongful acts

provided the act does not fall within the purview of 'act of the State'. The

said tort was described as 'misfeasance in public office' and defined as

malicious abuse of power, deliberate maladministration and unlawful acts

causing injury. Malice e.g. personal spite or a desire to injure for improper

reasons was held to be a necessary ingredient of the said tort. Reliance was

placed on Dunlop Vs. Woollahra Municipal Council (1981) 1 All ER 1202

(PC) laying down that mere invalidity of the order would not give rise to any

liability for payment of damages in an action in tort to the aggrieved party

unless the action is actuated by malice. It is worth mentioning that Lucknow

Development Authority supra was also referred to in this judgment and was

not held to be laying down any different proposition.

14. Reference may lastly be made to Punjab State Civil Supplies

Corporation Ltd. Vs. Sikander Singh (2006) 3 SCC 736 which was a

converse case of an employer suing the employee in tort for damages. The

same principle was applied and it was held that without malice, no

misfeasance can be accepted and even nonfeasance i.e. omission to

discharge duty, to be actionable must be impressed with the same

characteristic namely malice or bad faith.

15. This view was recently reiterated in Natural Resources

Allocation, in Re, Special Reference No.1 of 2012 (2012) 10 SCC 1

where also it was held that only where the public functionary exercises

discretion capriciously or for considerations which are mala fide, the

public functionary should shoulder the burden of compensation found

payable.

16. Though in the pleadings in the present case there is a vague

averment of the actions of the respondent from which the appellant /

plaintiff claims to be aggrieved being biased / capricious / malicious but

neither is there any finding of the Trial Court in this regard nor is the

appellant / plaintiff found to have in evidence established so. The senior

counsel for the appellant / plaintiff has also not argued so.

17. It was in this context only that it is repeatedly asked from the

senior counsel for the appellant/plaintiff that would not every

unsuccessful disciplinary authority action cause harassment to an

employee and if the proposition as agitated were to be accepted, every

unsuccessful disciplinary action would give rise to a cause of action for

damages/compensation. That is not the law. If the disciplinary action,

even though unsuccessful, is found to be bona fide and undertaken in

exercise of administrative power, the question of the same giving rise to

any liability for compensation does not arise.

18. It is not every prosecution which gives rise to a tortious liability. It

is only malicious prosecution which gives rise to a tortious liability. If the

intent of law had been that every prosecution should lead to a claim for

damages the word 'malicious' would not have been used. As far as civil

proceedings are concerned, the Privy Council as far back as in Mohamed

Amin Vs. Jogendra Kumar Bannerjee AIR 1947 PC 108 though held the

word 'prosecution' in the expression 'malicious prosecution' to be not

used in the technical sense which it bears in criminal law but held that

action lies for malicious prosecution of only certain classes of civil

proceedings viz. falsely and maliciously presenting a petition in

bankruptcy or a petition to wind up a company and not for falsely and

maliciously prosecuting an ordinary civil action. The reason given was,

because such an action does not necessarily and naturally involve damage

to the party sued and the party wrongfully sued will be indemnified

against his expenses by the award of costs and the law does not award

damages for mental anxiety or for extra costs incurred.

19. This Court also in C.B. Aggarwal Vs. P. Krishna Kapoor AIR

1995 Delhi 154 held that ordinarily civil action even if decided against a

party would not normally give right to an action for damages on that

ground unless a tort of abuse of process of the Court is established, except

in relation to attachment of property, bankruptcy or winding up.

20. The Supreme Court in West Bengal State Electricity Board Vs.

Dilip Kumar Roy (2007) 14 SCC 568 was concerned with a suit for

damages for mala fide initiation of disciplinary proceedings with an intent

to lower the reputation and prestige of the plaintiff employee. The Trial

Court and the High Court had awarded damages including on account of

malicious prosecution. The Supreme Court while setting aside the

judgment of the High Court quoted passage from Advanced Law

Lexicon, 3rd Edition by P. Ramanatha Aiyar holding that in general, a

person may utilize any form of legal process without any liability, save

liability to pay the costs of proceedings if unsuccessful; but an action lies

for initiating civil proceedings, such as presentation of a bankruptcy or

winding up petition, an unfounded claim to property, not only

unsuccessfully but maliciously and without reasonable and probable

cause and resulting in damage to the plaintiff and for malicious abuse of

process of Court.

21. The House of Lords also in Gregory Vs. Portsmouth City Council

(2000) 1 ALL ER 560 (HL) held that the tort of malicious prosecution is

available only in respect of proceedings where the criminal law without

reasonable and proper cause is set in motion and in a few special cases of

civil legal process and that it is unnecessary and undesirable for the said

tort to be extended to civil proceedings generally or to disciplinary

proceedings, for the reason of existence of other closely related torts

including of misfeasance in public office which provide alternate remedy

to protect those subjected to malicious disciplinary proceedings.

22. I therefore do not find any merit in the sole contention urged by the

senior counsel for the appellant/plaintiff.

23. Though the factual findings of the learned Trial Court as recorded

hereinabove have not been challenged but during the course of hearing I

have gone through the evidence recorded and the documents proved and

do not find any error in the impugned judgment and decree.

24. There is thus no merit in this appeal which is dismissed; however the

respondents/defendants having not contested, no order as to costs.

Decree sheet be prepared.

RAJIV SAHAI ENDLAW, J AUGUST 12, 2013 pp..