Akhilesh Kumar Verma vs Maruti Udyog Ltd. & Ors.
2014 Latest Caselaw 4089 Del

    $~5
*   IN THE HIGH COURT OF DELHI AT NEW DELHI

                        +       RFA (OS) No.112/2011

                                    Date of Decision: 02nd September, 2014

    AKHILESH KUMAR VERMA                     ..... APPELLANT
                Through : Appellant in person.

                                          Versus

    MARUTI UDYOG LTD. & ORS.                 ..... RESPONDENTS

Through : Mr.T.K. Ganju, Sr. Adv.

with Mr.Aquib Ali, Adv.

                            RFA (OS) No.120/2011


    MARUTI SUZUKI INDIA LTD.                 ..... APPELLANT
                 Through : Mr.T.K. Ganju, Sr. Adv.
                           with Mr.Aquib Ali, Adv.

                                 Versus

    AKHILESH KUMAR VERMA & ORS.             ....RESPONDENTS
                Through : Respondent no.1 in person.


    CORAM:
    HON'BLE MS. JUSTICE GITA MITTAL
    HON'BLE MR. JUSTICE SUNIL GAUR

    GITA MITTAL, J (ORAL)

1. By this judgment, we are disposing these appeals whereby the

judgment and decree dated 26th September, 2011 passed in CS (OS)

No.1917/1995 has been impugned.

2. For the purposes of convenience, we propose to refer to the parties

as per their nomenclature in the suit proceedings. The facts giving rise to

the litigation are within a narrow compass and are briefly noticed

hereafter.

3. The plaintiff Akhilesh Kumar Verma was appointed on 6th June,

1984 as an executive with the Maruti Udyog Ltd.-defendant no.1. On

17th April, 1990, he was transferred to Mumbai. It is here that we enter

the arena of disputes between the parties. According to the defendant

no.1, the plaintiff remained unauthorisedly absent for long periods

between 24th April, 1990 to 19th November, 1990.

4. The plaintiff, it appears, disputed the order of transfer and made a

representation to the defendant no.1 which was not acceded to. The

plaintiff then filed CS (OS) No.539/1990 seeking a declaration and

permanent injunction against the aforesaid transfer order.

5. With regard to the alleged unauthorised absence and disobeying the

orders of superiors, the defendant no.1 issued a chargesheet dated 31 st

December, 1990 (Exh.PW 1/26) to the plaintiff. On 6th January, 1991

and 20th January, 1991, the plaintiff submitted replies thereto. The

defendant no.1 contends that the disciplinary action was kept in abeyance

in order to give an opportunity to the plaintiff to show sincerity in work.

6. The plaintiff states that after being relieved from Gurgaon on 29th

January, 1991, he joined his place of posting on the 30th January, 1991 at

Mumbai. The defendant no.1 alleges that thereafter the plaintiff again

remained absent unauthorisedly between 12th February, 1991 to 30th

March, 1991. During this period, the plaintiff sent various letters of

request to defendant no.1 seeking leave on different pretexts.

7. On 6th and 9th April, 1991, the plaintiff was posted to the office of

the defendant no.1 at Jawaharlal Nehru Port Trust (JNPT), Raigarh. It is

alleged by defendant no.1 that again the plaintiff remained absent

unauthorisedly from the 29th April, 1991 to 16th May, 1991 and did not

join this place of posting as well. It is asserted by the plaintiff that he,

thereafter, joined office at JNPT on 20th July, 1991 and again absented

himself unauthorisedly from the 26th July, 1991 onwards. In these

circumstances, a second chargesheet dated 5th August, 1991 was issued to

the plaintiff and he was given ten days time to file a reply to the second

chargesheet. The plaintiff submitted his reply thereto on 13 th August,

1991.

8. On the 16th August, 1991, a note was circulated by the defendant

no.1 directing a domestic inquiry to be conducted in respect of the

chargesheet dated 31st December, 1990 as well as the second chargesheet

dated 5th August, 1991.

9. The domestic inquiry commenced its sittings on 21st October, 1991

which continued till the 24th March, 1992. The proceedings of this

inquiry have been proved on the suit record as Exh.PW 1/49 (colly.). On

a consideration of the material on record, in the report dated 21st May,

1992, the inquiry officer recommended that the plaintiff was guilty of the

alleged charges.

10. It is not disputed that the copy of the inquiry report was received

by the plaintiff who submitted a representation dated 9 th June, 1992.

Thereafter, an order dated 27th June, 1992 was passed by the defendant

no.1 dismissing the plaintiff from service.

11. The plaintiff challenged the legality of the action of the defendants

in initiating the disciplinary proceedings against him and his dismissal.

Inter alia, it was his grievance that his absence from duty was not

unauthorised. It was the plaintiff's contention that he was a whistle

blower in the organization and had exposed and brought to the fore,

serious allegations of corruption against the defendants. As a result, the

defendants were nursing vengeance and mala fide intention against the

plaintiff and were looking for a way to oust him from service with the

organization. The plaintiff contends that the chargesheet issued to him

was as a result of the vengeance nursed against him and was illegal,

motivated and therefore null and void. The plaintiff claims to have been

severely harassed and humiliated and that he was illegally dismissed from

service.

12. Aggrieved by the order dated 27th June, 1992 passed by the

defendant no.1 dismissing the plaintiff from service in the year 1993, the

plaintiff initially filed a suit for declaration and mandatory injunction in

the district courts. The suit was contested by the defendant no.1-Maruti

Udyog Ltd.; defendant no.2-Shri R.C. Bhargava, Managing Director,

Maruti Udyog Ltd. & defendant no.5-Shri A. Nandy, Deputy General

Manager, Maruti Udyog Ltd. The defendant nos.3, 4 & 6 were

proceeded ex parte.

13. In these proceedings, the plaintiff filed an application seeking

amendment of the plaint to incorporate the relief of damages of

Rs.27,35,303/-. As a result, the suit was transferred to the original side of

this court and renumbered as CS (OS) No.1917 of 1995. Pleadings were

ordered to be completed afresh.

14. On a consideration of the pleadings, by an order passed on 30th

July, 1998, the following issues were found arising in the case:-

"1. Whether because of the suspicion of defendant No.1 that the plaintiff had made revelations of its malpractices, the plaintiff was harassed and illegally dismissed by defendant No.1? OPP

2. Whether the domestic enquiry report dated 21st May, 1992 is illegal, motivated and liable to be declared null and void? OPP

3. Whether the dismissal order dated 27th June, 1992 is illegal, motivated and liable to be declared null and void? OPP

4. Whether the plaintiff is entitled to any amount of compensation from the defendants? OPP

5. Whether the suit of the plaintiff is not maintainable in the present form and barred under the Specific Relief Act? OPP"

15. The matter proceeded to trial. The plaintiff examined only himself

as the sole witness in support of the case. On behalf of the contesting

defendants, Shri A.S. Sharma appeared as a witness. On the 14 th of

September, 2011, arguments were heard in the matter.

16. Our attention is drawn by Mr.Ganju, learned senior counsel

appearing for the defendants to the following order dated 14th September,

2011 recorded by the learned Single Judge after closure of arguments:-

"CS (OS) No.1917/1995 Arguments heard.

Judgment reserved.

The defendant is directed to file within three working days a statement showing the amount which the defendant- company would have paid to the plaintiff as gross emoluments and gratuity, had he remained in service till today in the same rank in which he was placed at the time of his dismissal. The statement will be supported by an affidavit of a responsible officer of defendant-company. The plaintiff is also directed to file within three working days, an affidavit disclosing therein his gross income from the date he was dismissed from service till today. "

17. In compliance of the above directions, the plaintiff filed an

affidavit in September, 2011 with regard to his income as per the returns

filed after the date of his dismissal from service.

18. The learned Single Judge thereafter proceeded to judgment and by

the impugned judgment and decree dated 26th September, 2011, granted a

decree in favour of the plaintiff and against the defendant no.1 in the total

sum of Rs.15,00,000/- with proportionate costs.

Both sides are aggrieved by the findings returned by the learned

Single Judge and have assailed the judgment and decree dated 26th

September, 2011 by way of the afore-noticed two appeals.

19. We have heard the plaintiff who appears in person as well as

Mr.Ganju, learned senior counsel appearing for the defendants.

Inasmuch as we propose to remand the case to the learned Single Judge

for reconsideration, we are not recording detailed findings on the

submissions which have been made before us. However, while the

plaintiff challenges the award of compensation of only Rs.15,00,000/- on

the ground that the same is based on no reasoning at all and that the

plaintiff was entitled to the suit amount, learned senior counsel for the

defendants while urging that the learned Single Judge has failed to record

any finding on issue no.1, has submitted the award of any amount to the

plaintiff was unjustified. Mr.Ganju, learned counsel submits that at the

same time, material evidence of the defendants so far as issue nos.1, 2 &

3 are concerned, have been completely ignored. Learned senior

counsel for the defendants would also submit that the award of

compensation to the tune of Rs.15,00,000/- is based on no evidence and is

contrary to law.

20. In support of these submissions, reliance has been placed on the

pronouncements of the Supreme Court reported in AIR 1971 SC 1828

Indian Airlines Corpn Vs. Sukhdev Raj; AIR 1981 SC 122 Smt. J.

Tiwari Vs. Smt. Jawala Devi Vidya Mandir & Ors.; AIR 1958 SC 12

S.S. Shetty Vs. Bharat Nidhi Ltd.; 1989 Supp (2) SCC 732 Kayastha

Pathshala, Allahabad & Anr. Vs. Rajendra Prasad & Anr. & State of

U.P. & Anr. & MANU/DE/0585/1996 Tilak Raj Chopra Vs. Alitalia

Airlines (paras 12 & 13) (2005) 2 SCC 363 Kendriya Vidyalaya

Sangathan & Anr. Vs. S.C. Sharma and the judgment passed by this

court on 1st August, 2012 in CS (OS) No.673/1997 entitled Shri L.M.

Khosla Vs. Thai Airways International Public Company Limited &

Anr..

21. Learned senior counsel for the defendants has also drawn our

attention to the judgments which have been relied upon by the learned

Single Judge and it has been pointed out that these judgments in fact

support the case of the defendants and do not support the suit prayer in

any manner.

22. So far as issue no.2 is concerned, the same raises a question as to

whether the inquiry report dated 21st May, 1992 is illegal, motivated and

therefore null and void. It is contended by Mr.Ganju, learned senior

counsel for the defendants that the reasoning in support of the finding

returned by the learned Single Judge is to be found in paragraph no.6 of

the impugned judgment. It is pointed out that the learned Single Judge

has noted the statement of the plaintiff to the effect that the Inquiry

Officer (defendant no.4) had told him several times that the inquiry was

merely an eyewash and that he has to make a report against him. It is

submitted that this evidence is in the nature of hearsay and could not have

been relied upon. Further discussion in the impugned judgment would

show that the learned Single Judge in para 6 has referred to "telephonic

conversations were recorded by him and are contained in his

representation (Exh.PW 1/51)". The learned Single Judge has noted that

the plaintiff has placed on record the tape alleged to be containing the

conversation between him and the Inquiry Officer. Mr.Ganju, learned

senior counsel submits that there is no tape recording on record. No such

recording has been proved before the learned Single Judge.

23. It is not disputed before us by Mr.A.K. Verma as well that no such

tape is on the record of the trial court. The findings in the impugned

judgment which are premised on such tape recording, therefore, are based

on an erroneous consideration of the evidence on record and cannot be

sustained.

24. It is submitted by Mr.Verma that apart from the tape recording,

there is a substantial evidence on record in support of the his contentions

and claims. Mr.Ganju, learned counsel also submits that in the enquiry

proceedings, the report provide in evidence established the misconduct of

the plaintiff, justifying his dismissal from service. The same, however,

finds no consideration in the impugned judgment.

25. So far as the issue no.3 regarding the order dated 27th June, 1992

being illegal, motivated and, therefore, null and void is concerned, our

attention is drawn to paras 7 & 9 of the impugned judgment. It is urged

that the learned Single Judge has been largely pursuaded to hold against

the defendants based on a document dated 21st May, 1992 which was in

the nature of a `draft for approval'. This was an unsigned document on

which, the plaintiff, in the admission/denial conducted on 9th August,

1994, has endorsed that this letter was not received by him. It is the

submission of learned senior counsel that there was no effective cross-

examination of the witness of the defendants and no effort was made by

the plaintiff to prove this document in accordance with law on the record.

26. Mr.A.K. Verma would submit that this document has been filed by

the defendants and, therefore, the plaintiff was not required to prove the

same.

27. Be that as it may, this document does not find mention in the

pleadings of either of the parties. When cross-examined, the defendants'

witness had stated that this was a draft for approval. The document is

unsigned. It is not possible to discern as to the authority or the person

who had drafted this document or on whose instructions this was drafted.

28. The above narration would disclose that a detailed disciplinary

inquiry was conducted against the plaintiff which proceedings were

proved on record. The defendant was relying on the disciplinary

proceedings to support the legality of the order of dismissal. The parties

were at variance with regard to the legality and validity of the dates and

reasons for absence from duty. In order to decide the legality and bona

fide of the action against the plaintiff, it was necessary to examine the

charges and the orders of the inquiry officer. Adjudication on issue

nos.1, 2 & 3 required deliberation on the above. However, there is not a

whisper of discussion in the impugned judgment on the merits of the

charges on the inquiry which was conducted.

29. Both parties are ad idem on the fact that so far as the award of

compensation is concerned, the impugned judgment does not disclose any

reasoning or basis thereof. While the plaintiff is seeking enhancement of

compensation, the defendants contend that the award is grossly

exorbitant. A perusal of para 19 of the judgment and decree dated 26th

September, 2011 would show that the learned Single Judge has been

persuaded to make the award of all inclusive compensation amounting to

Rs.15,00,000/- on the view that ends of justice would be met if it was so

awarded on account of wrongful dismissal from service.

30. We have noted above that the findings of wrongful dismissal do

not take into account evidence which was placed on record. The award of

compensation to meet the ends of justice as well cannot be legally

sustained.

31. We may note that so far as Issue no.5 with regard to the

maintainability of the suit and the prohibition under the Specific Relief

Act is concerned, the learned Single Judge has noted that the plaintiff has

abandoned the relief of reinstatement in service. Therefore, there is no

prohibition to the maintainability of the suit which remains simpliciter a

suit for compensation on a plea that he was wrongfully terminated from

service.

32. So far as the affidavit which was directed to be filed on 14th

September, 2011 after the arguments were closed in the matter, is

concerned, the same could not have been considered by the learned

Single Judge without the plaintiff proving the same on record and giving

an opportunity to the defendants to cross-examine the plaintiff with

regard thereto.

33. In view of the above discussion, we direct as follows:-

(i) The judgment and decree dated 26th September, 2011 is hereby set

aside and quashed.

(ii) The matter is remanded for consideration afresh on issue nos.1 to 4

& 6 before the learned Single Judge who shall proceed in the

matter uninfluenced by any observation made by us in the present

judgment.

(iii) The learned Single Judge shall give opportunity to the plaintiff to

prove the affidavit and the documents, if any, enclosed therewith in

accordance with law, which has been filed pursuant to the order

dated 14th September, 2011 and give the defendants an opportunity

to cross-examine the plaintiff with regard thereto before taking the

same on record.

(iv) It is made clear that we have not opined on the merits of the case.

(v) In view of the above directions, the Registry is directed to release

the amount of Rs.15,00,000/- with all accruals thereon deposited

by the defendants in terms of the order.

(vi) The parties shall appear before the learned Single Judge for

directions on 16th September, 2014.

The appeals are allowed in the above terms.

(GITA MITTAL) JUDGE

(SUNIL GAUR) JUDGE

SEPTEMBER 02, 2014 aa