Sudheer Kumar vs The Bharat Sanchar Nigam Limited
2023 Latest Caselaw 5459 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

.

                                                        OSA No.                  2 of 2012





                                                       Reserved on: 16.03.2023
                                                       Decided on :             10.05.2023





    Sudheer Kumar                                                         ...Appellant

                                             Versus





    The Bharat Sanchar Nigam Limited                                      ...Respondents
    and another

    Coram

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Acting Chief Justice.

The Hon'ble Mr. Justice Virender Singh, Judge.

    Whether approved for reporting?1        Yes.




    For the appellant:                  Mr. R.K. Gautam, Senior Advocate,
                                        with Mr. Jai Ram, Advocate.





    For the respondents:                Mr. Rajiv Jiwan, Senior Advocate,
                                        with Mr. Prashant Sharma, Advocate.





    Virender Singh, Judge.

By way of the present OSA, the unsuccessful

plaintiff has assailed the judgment and decree, dated 8 th

August, 2012, passed by the learned Single Judge of this

Whether Reporters of local papers may be allowed to see the judgment?

Court, in Civil Suit No. 64 of 2009, titled as Sudheer Kumar

versus The Bharat Sanchar Nigam Limited and another.

.

2. For the sake of convenience, the parties to the lis

are, hereinafter, referred to, in the same manner, as were

referred to, by the learned Single Judge.

3. Brief facts, leading to the filing of the present

appeal, before this Court, may be summed up, as under:

3.1. The plaintiff has filed a suit for damages, to the

tune of ₹ 20 Lakh, against the defendants, on the ground, that

in response to the advertisement, issued by the defendants, he

appeared in JTO Examination, in the year 2005, which was

held on 22nd January, 2006. He was assigned Roll No. JTO-

2005/20/30/10001. Thereafter, vide letter, dated 28 th July,

2006, he was declared provisionally successful in the said

exam and was directed by the defendants to submit the

original certificates/documents, regarding his qualification.

3.2. Consequently, all the original requisite certificates

were submitted by the plaintiff, vide letter, dated 4 th August,

2006, to the defendants. Thereafter, those certificates were

neither returned by the defendants nor any information was

given to the plaintiff about his posting. Although, the plaintiff

remained in touch with the defendant-Department, but,

despite the repeated requests, his original testimonials were

.

not returned. Thereafter, the plaintiff had made written

request, dated 10th August, 2007, for the redressal of his

grievances, but, despite the said written request, the

defendants remained sleeping over the matter and the

representation has not been replied.

3.3. It is the case of the plaintiff that he has been

assured by the defendants that his joining will be permitted

after few days and, he will be sent for training. The plaintiff

has also served a legal notice on 11th September, 2007, which

was duly received by the defendants, but, neither the said

notice has been replied by the defendants nor the needful has

been done.

3.4. It is the further case of the plaintiff that during

the period, when his testimonials were with the defendants, he

had also appeared in exams for the various posts in different

departments and in some of the exams, he had succeeded, but,

he could not join there, as he was not having his original

certificates with him.

3.5. The plaintiff has elaborated his stand by stating

that he was selected for the post of Lecturer in NIT, Hamirpur

.

and also, in the Department of DRDO. Acting upon the belief

that he has been selected with the defendant-Department, the

plaintiff, according to him, could not participate in various

other recruitment processes. Thereafter, the plaintiff again

served a notice, dated 19th April, 2009, upon the defendants,

claiming the compensation of ₹ 10 Lakh, alongwith interest at

the rate of 18%.

4. On the basis of the above facts, the plaintiff has

prayed for the relief, as claimed in the plaint.

5. When put on notice, the defendants have contested

the suit by taking preliminary objections, that the suit has not

been not filed, as per the law; the same has not properly been

valued for the purpose of Court fee and jurisdiction; the suit is

not maintainable in the present form; and the plaintiff has no

enforceable cause of action. The plea of estoppel has also been

taken against the plaintiff.

5.1. On merit, the factual position, qua the fact, that

the plaintiff appeared in the Graduate Engineer Junior

Telecom Office Examination, 2005, has been admitted by the

defendants. It has also been admitted that the original

certificates of the plaintiff were called for verification by the

.

defendant-Department, vide letter, dated 28 th July, 2006, as,

his name was figured in the list of qualified candidates.

5.2. According to the defendants, the verification of the

documents was to be done by the Circle, from where, the

candidate has appeared in the Examination, irrespective of the

Circle, to which, he had been allotted.

5.3. As per the defendants, defendant No. 1 comprises

of a number of Circles and recruitment to the posts of Junior

Telecom Officer was made, in accordance with the vacancies

available in the Circles, which were made available to the

corporate office of defendant No. 1. The allegations of the

plaintiff qua non-returning of his testimonials have been

denied specifically. However, issuance of representation,

dated 10th August, 2007, has been admitted by the defendants.

5.4. It is the further case of the defendants that prior

to issuance of the representation, dated 10 th August, 2007, the

certificates of the plaintiff had already been returned by the

defendants, vide letter, dated 23rd February, 2007.

5.5. Rest of the contents contained in the plaint have

been denied by the defendants.

.

6. The plaintiff has filed the replication, refuting the

preliminary objections, as well as, the contents of the written

statement, by virtue of which, the suit has been contested by

the defendants.

7. From the pleadings of the parties, the following

issues were framed by the learned Single, vide order, dated

20th April, 2010:

"1. Whether the plaintiff is entitled to damages and interest as claimed, if so, to what extent?

OPP

2. Whether the suit is not maintainable?

OPD

3. Whether the plaintiff is estopped from filing the

present suit due to his own act, conduct and acquiescence?

OPD

4. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction?

OPD"

8. Thereafter, the parties to lis were directed to

adduce oral, as well as, documentary evidence.

9. After closure of the evidence and after hearing the

learned counsel appearing for the parties, the learned Single

Judge has dismissed the suit, vide judgment and decree, dated

8th August, 2012,

.

10. Feeling aggrieved from the said judgment and

decree, the present appeal has been preferred before this

Court, on the ground, that the learned Single Judge has not

properly appreciated the evidence adduced by the parties to

the lis.

11. According to the appellant (plaintiff), the learned

Single Judge, in para 20 of the judgment, has observed that

the communication, dated 4th October, 2006, cannot be said to

have been proved, in accordance with law, whereas, perusal of

the record shows that the said document has been exhibited as

Ex. PA. This fact has not been considered by the learned

Single Judge.

12. The findings of the learned Single Judge have also

been assailed on the ground that the learned Single Jude has

wrongly observed that the plaintiff has failed to prove that he

could not join either at NIT, Hamirpur or in the office of

DRDO, for want of original certificates. According to the

plaintiff, the documents, which have been produced by him, as

well as, the oral evidence adduced by him, have not properly

been appreciated by the learned Single Judge.

.

13. The other ground to challenge the findings of the

learned Single is that the learned Single Judge has wrongly

appreciated the version of PW-1 (plaintiff), as, according to the

plaintiff, it can easily be inferred from his statement as PW-1

that he was under the impression that he had been selected for

the said post, that is why, the AGM had directed him to take

back the documents at his own risk and peril. As such, he had

not taken back the documents, for the reason, that in case he

takes back the documents at his own sweet will, then, the

selection to the said post might be cancelled.

14. On all these submissions, Mr. R.K. Gautam,

learned Senior Counsel, assisted by Mr. Jai Ram, learned

counsel, appearing for the appellant-plaintiff, has prayed that

the appeal may kindly be accepted by setting aside the

impugned judgment and decree and the suit of the plaintiff

may be decreed, as prayed for.

15. The prayer, so made, by the learned counsel for the

appellant-plaintiff has been opposed by Mr. Rajiv Jiwan,

learned Senior Counsel, assisted by Mr. Prashant Sharma,

learned counsel for the respondents-defendants, on the ground

that the learned Single Judge has rightly appreciated the

.

evidence, so adduced, by the parties to the lis and has rightly

dismissed the suit of the plaintiff.

16. In order to decide the controversy involved in the

present case, it would be apt for this Court to discuss the oral,

as well as, the documentary evidence, adduced by the parties,

before the learned Single Judge.

17. After framing of the issues, plaintiff-Sudheer

Kumar appeared in the witness box as PW-1, and deposed as

per the stand taken by him, in his plaint. According to him, he

was selected for the post of JTO, vide letter, dated 28 th July,

2006, the copy of which is Ex. PW-1/A and, thereafter, he had

submitted his testimonials/certificates to Mr. Amar Singh, the

then AGM. According to him, these documents were never

returned to him by Mr. Amar Singh, the then AGM. The

documents were supplied on 23 rd February, 2007. He has

further submitted that meanwhile, he had been selected as

Lecturer, on contract basis, in NIT Hamirpur and Junior

Scientist in DRDO, however, the testimonials were not with

him, as such, he could not join the above services. He had

made the oral requests to Mr. Amar Singh, the then AGM,

however, the documents were not supplied to him. When, he

.

personally visited the office of BSNL at New Delhi, he was

apprised by the authorities that the testimonials could not be

supplied to him and he can take the documents back at his

own risk and peril. He made the representation on 10 th

August, 2007 and also served legal notice upon the defendants

on 11th September, 2007. Thereafter, another legal notice was

served on 20th June, 2008. He has relied upon the letter issued

by NIT, as well as, the call letter issued by DRDO. On 24 th

September, 2008, he again served legal notice, through his

counsel. Another legal notice was served on 19th April, 2009.

17.1. He has further deposed that the original

certificates were with the defendants, which have not been

returned back to him, due to which, he could not join as

Lecturer, on contract basis, in NIT Hamirpur. Similarly, he

could not appear in the interview, in pursuance of the call

letter, issued by DRDO. As such, he has claimed a sum of ₹ 20

Lakh, as compensation.

17.2. In his cross-examination, this witness has

admitted that the post in question was advertised through the

Employment News and he had gone through the conditions, as

mentioned, in the advertisement. He has admitted that in the

.

defendant-department, there are territorial and functional

Circles. The selection for the posts was on all India basis and

the same were to be filled up, according to the vacancies

available in the respective Circles. He has feigned his

ignorance about the fact that the candidate would not get

indefeasible right to selection, even if, his name finds

mentioned in the merit list. He has admitted that vide letter

Ex. PW-1/A, he had been informed about his provisional

selection. He has qualified his statement by deposing that on

the basis of the letter Ex. PW-1/A, the candidates were called

for further training. However, this witness had not received

any specific letter to join the training or for his medical

examination. This witness had personally visited the

defendants for requesting them to return his testimonials. He

has voluntarily stated that he had not sought the return of the

documents by submitting a written request. According to him,

he might have visited the offence of defendants between 4 th

August, 2006 to 23rd February, 2007, for about ten times.

According to him, whenever, he had visited the AGM of the

defendant-department, he was told that the documents could

be taken away by him at his own risk and peril and he was

.

under the impression that he has been selected for the post in

question, as such, he thought not to take the documents back.

However, no reasons were assigned by the defendant-

department when the testimonials were returned to him, vide

letter, dated 23rd February, 2007. According to him, he was

interested to join the defendant-department, as such, he

thought it not proper to ask for the documents even after

receipt of the selection letter, dated 3 rd August, 2006.

According to him, he was to join NIT Hamirpur on or before 8 th

December, 2006. According to him, he had not appeared in the

interview in pursuance of letter, dated 4 th October, 2006, since

he was not having the testimonials with him. Lastly, he has

deposed that he has joined Punjab National Bank on 7 th July,

2008.

18. PW-2, P.S. Kanwar, Assistant Registrar

(Administration) from NIT Hamirpur, has proved the

document Ex. PW-2/A, dated 3rd August, 2006.

19. PW-3, Krishan Kumar, Joint Director, RAC,

DRDO, Ministry of Defence, has proved the document, dated

.

4th October, 2006, Mark C.

20. To rebut this evidence, DW-1 Balbir Singh has

submitted the record pertaining to the selection process of the

plaintiff. In the cross-examination, this witness has stated

that the document Ex. PW-1/A, dated 28 th July, 2006, was

issued by the department.

r Thereafter, the department had

received the documents/testimonials of the plaintiff on 4 th

August, 2006. According to him, the department had received

letter, dated 23rd February, 2007, Ex. DW-1/B. This witness

has admitted that the notice Ex. PW-1/C was received in the

office of the defendants.

21. DW-2, Amar Singh, has deposed that he had

forwarded the communication, dated 28th July, 2006, to the

plaintiff, asking him to submit the testimonials/certificates,

upon which the plaintiff had submitted the original

documents, through registered post. The plaintiff visited him

for return of the testimonials in the month of August, 2006.

The plaintiff was requested to put signatures on the letter,

whereby he had been asked to take the documents, upon

which, the plaintiff had responded that he has been visiting

Shimla frequently, as such, he will come on another day to

.

collect the same. Thereafter, the plaintiff never visited him.

The documents were returned to the plaintiff in the month of

February, 2007.

22. In the cross-examination, this witness has

admitted that the plaintiff had qualified for the post of JTO.

The original documents received by this witness were not

forwarded to the Corporate Office at Delhi, however, the final

merit list was drawn by the Corporate Office at Delhi. The job

of this witness was to verify the testimonials submitted by the

plaintiff for the post of JTO. The said process was completed

immediately after the receipt of the testimonials within a

period of one week.

23. In response to the Court question, this witness has

deposed that when the plaintiff visited him in the last week of

August, 2006, then, he had apprised the plaintiff that he could

take his testimonials back, as, the same had already been

verified by him. The plaintiff had been requested to put

signatures as a token of receipt.

24. DW-3, Indira Thakur, after going through the

entire file, has categorically stated that no representation for

.

return of the original documents was submitted by the

plaintiff. However, according to her, the original testimonials

were submitted by the plaintiff to the department on 4 th

August, 2006 and the same were returned back to him on 23 rd

February, 2007.

25. So far as the documentary evidence is concerned,

Ex. PW-1/A is the letter, written by the Assistant General

Manager (HRD) of the defendant-department, in which, the

factum of provisional selection of the plaintiff has specifically

been mentioned. Vide this letter, he has been directed to

submit the original certificates, as mentioned in the letter,

which are as under:

1. Matriculation Certificate with DOB.

2. Degree Certificate.

3. Degree details marks certificates.

4. Employment Registration Card.

5. 05 Passport size photographs.

6. Caste Certificate, if belongs to SC/ST/OBC category.

7. Latest Character Certificate.

26. Ex. DW-1/A is the letter, dated 4th August, 2006,

by virtue of which, the documents, mentioned at serial No. 1 to

7 (supra) were submitted by the plaintiff. Ex. PW-1/C is the

legal notice, dated 11th September, 2007, whose postal receipts

.

are Ex. PW-1/C and Ex. PW-1/D. Ex. PW-1/F is the

representation, dated 20th June, 2008 and Ex. PW-1/G is its

postal receipt. Ex. PW-1/H is the legal notice, under Section

80 CPC, dated 24th September, 2008, whose postal receipts are

Ex. PW-1/I and Ex. PW-1/J. Ex. PW-1/K is the corrigendum

issued by the plaintiff and Ex. PW-1/L and Ex. PW-1/M are its

postal receipts. Ex. PW-1/N is the notice under Section 80

CPC, dated 19th April, 2009. Ex. PW-1/O is the reply of the

legal notice. Ex. PW-2/A is the copy of the appointment letter

issued by the National Institute of Technology, Hamirpur. Ex.

PA is the letter, by virtue of which, the plaintiff has been

directed to appear for interview for selection of Scientist 'B' in

Computer Science & Engineering, through, DRDO.

27. This is the entire documentary evidence.

28. The learned Single Judge, vide the judgment

under challenge, has dismissed the suit of the plaintiff, on the

ground that the plaintiff has not been able to establish his

case.

29. Before discussing the contentions, as raised by the

plaintiff, in this case, it is apt to consider the admitted factual

.

position.

30. As per the stand taken, in this case, the plaintiff

has applied for the post of Junior Telecom Officer with

defendant-Department. Vide letter, dated 28 th July, 2006, Ex.

PW-1/A, the plaintiff has been duly intimated by defendant-

Department regarding his "provisional selection". It has also

not been disputed, in this case, that the plaintiff has been

directed to submit his original certificates/documents, as

reproduced hereinabove, on or before 10 th August, 2006.

Pursuant to that, the plaintiff, vide letter, dated 4 th August,

2006, Ex. DW-1/A, has submitted the original certificates, with

defendant No. 2. Those documents were returned back vide

letter Ex. DW-1/B, on 23rd February, 2007.

31. In this case, the plaintiff has asserted that after

submitting the testimonials to the defendant-Department, he

was neither informed about his posting nor his certificates

were returned back to him. This factual position has been

asserted in para 3 of the plaint. The contents of para 3 of the

plaint have been denied and contested by the defendants, by

asserting that the cadre of Junior Telecom Officer is a Circle

based cadre and the candidates are required to indicate their

.

choice of Examination Centre, at which, they wish to appear.

It is their further stand that mere inclusion of the name of the

plaintiff in the merit list does not entail him to be appointed.

32. Even otherwise, the claim of the plaintiff, in the

present case, is not for seeking the appointment as Junior

Telecom Officer. By way of the present suit, he is seeking the

damages of ₹ 20 Lakh, on account of "unauthorized retention"

of his testimonials, by the defendant-Department.

33. In such situation, the controversy, in the present

case, narrowed down to the fact as to whether the plaintiff has

apprised the defendant-Department regarding the fact that on

account of the fact that his documents are lying with the

defendant-Department, he is unable to join for the post of

Lecturer in Computer Science and Engineering Department in

NIT Hamirpur, as well as, he could not appear in the

interview for the post of Scientist B in DRDO.

34. In the pleadings, it has been asserted by the

plaintiff that he made a written request, vide representation,

dated 10th August, 2007, for the redressal of his grievances.

The copy of the said representation, dated 10 th August, 2007,

has been denied by the defendants, when, the case was fixed

.

for admission and denial of the documents. Despite the denial

of this document, no efforts have been made by the plaintiff to

prove this document. This document has simply been marked

as Mark-A. Hence, no benefit could be derived by the plaintiff,

on the basis of the alleged representation, dated 10 th August,

2007. Even otherwise, the representation, Mark-A, was moved

by the plaintiff on 10th August, 2007, whereas the testimonials

were returned to him by the defendant-Department on 23 rd

February, 2007. The representation was made after about six

months from the date of receipt of the documents.

35. There is nothing on the record to demonstrate that

any written communication was made by the plaintiff with the

defendant-Department, after receiving the call letter for

appointment as Lecturer in Computer Science and

Engineering Department, from NIT, Ex. PW-2/A, dated 3 rd

August, 2006, as well as, letter for interview, dated 4 th

October, 2006, for selection as Scientist B in Computer Science

and Engineering Department in DRDO, Ex. PA. The plaintiff

allegedly had written to the defendant-Department only on

10th August, 2007, much after the issuance of letter Ex. PW-

2/A, which was issued on 3rd August, 2006 and the letter, Ex.

.

PA, which was issued on 4th October, 2006.

36. A feeble attempt has been made by the learned

Senior Counsel appearing for the plaintiff, when, arguments

have been advanced in favour of the plaintiff, on the ground,

that the plaintiff was interested to join as Junior Telecom

Officer with the defendant-Department. The same is not liable

to be accepted, as, there is no fiduciary relationship between

the plaintiff and defendants. He has applied for the post, for

which, he was provisionally selected, and his testimonials

were ordered to be submitted, for verification. No doubt, the

defendant-Department has no right to retain the testimonials

of the plaintiff, but, merely, on this fact, the plea of the

plaintiff, regarding his disability to join as Lecturer in

Computer Science and Engineering Department, NIT

Hamirpur, cannot be accepted as gospel truth.

37. Had the plaintiff, in fact, been interested to join for

the post of Lecturer in Computer Science and Engineering

Department, NIT Hamirpur, in response to the appointment

letter, dated 3rd August, 2006, Ex. PW-2/A, then, in the

Natural course of the events, he would have immediately

requested the defendant-Department, by way of written

.

communication, to return the documents to him, but, nothing

of this sort has been done by him, in this case, to get back the

original testimonials.

38. Similarly, when, the plaintiff had received

interview letter, Ex. PA, dated 4 th October, 2006, then, again,

he has not made any effort to request the defendant-

Department to return the documents. The entire pleadings

are totally silent qua the fact as to what benefit could be

derived by the defendant-Department by unauthorizedly

retaining the documents, submitted by the plaintiff. No mala

fide has been alleged in the plaint.

39. The stand of the plaintiff, in his evidence, qua the

fact that he has not requested to return his testimonials, in

writing, as it has been assured by the AGM of the defendant-

Department to take the documents at his own risk and peril, is

not liable to be accepted, in the absence of any documentary

proof, in this regard.

40. DW-2 has specifically deposed that the plaintiff

visited him and requested him to return the testimonials, in

the month of August, 2006, then, the plaintiff has been

requested to put the signatures on the letter, whereby, he has

.

been asked to take the documents, but the plaintiff told him

that he has been visiting Shimla frequently and he will collect

the testimonials on some other day. The explanation given by

DW-2, qua obtaining the signatures of the plaintiff, on the

letter, as token of the receipt of the documents, seems to be

natural. r

41. Since the onus was upon the plaintiff to prove his

case, as, he is seeking the damages, on account of the alleged

act of the defendants, in not returning the testimonials, as

such, he has to plead and prove that immediately, after

receiving the appointment letter Ex. PW-2/A and interview

letter Ex. PA, he has approached the defendants to return the

original testimonials, by demonstrating his intention to join

the above two posts.

42. The first correspondence, according to the plaintiff,

was made only on 10th August, 2007, whereas, the defendants

have returned the original testimonials to him, vide letter,

dated 23rd February, 2007. There is nothing on the record to

demonstrate that the defendants could foresee the alleged

damages caused to the plaintiff, by keeping the testimonials,

with them. The plaintiff has to apprise them about his

.

disability to join or to appear in the interview, in the absence

of the documents. The defendants cannot be presumed to

know about the disability of the plaintiff in the absence of the

original documents.

43. The defendants can be made liable only for those

consequences, which are not remote to their act and ordinary

follow from their act, because, the law cannot take account for

everything that follows a wrongful act. In other words, the

defendants cannot be held liable for the consequences of the

consequences.

44. As held above, the defendants could not foresee the

alleged damages caused to the plaintiff. The alleged damages,

as claimed by the plaintiff, in this case, are having no

proximity with the alleged act of the defendants. The

defendants can be held liable only for those damages, which

they can foresee and whatever they could not have foreseen,

they cannot be held liable for those damages.

45. The plaintiff, in this case, has also not taken the

ordinary care by requesting the defendants to return the

documents to him, when he had received the appointment

letter, as well as, the interview letter, as relied upon by him.

.

When the plaintiff has received the documents on 23 rd

February, 2007, then, his act to submit a representation on

10th August, 2007, does not seem to be natural, but, a feeble

attempt to get the benefit of his own inaction.

46. The plaintiff has himself produced the document,

Mark A, and the same can be taken into consideration to the

disadvantage of the plaintiff. His representation, Mark A, is

totally silent about the material fact that his original

testimonials have already been returned back to him by the

defendant-Department on 23rd February, 2007, vide letter Ex.

DW-1/B. Applying the presumption of Section 35 of the Indian

Evidence Act, no question can be raised on the genuineness of

the document, Ex. DW-1/B, as the law attaches the

presumption of genuineness with the official act.

47. Moreover, the plaintiff himself has admitted, in his

cross-examination, that the documents were supplied to him

by the defendants vide covering letter, dated 23 rd February,

2007. Then, in such situation, non-mentioning of this material

fact in the representation, Mark A, also dis-entitles him from

the relief, as claimed, in the case.

.

48. In view of the above, this Court is in full

agreement with the conclusion drawn by the learned Single

Judge, but, for the different reasons, as stated above.

Accordingly, the impugned judgment is upheld and the appeal

is dismissed.

49. Decree sheet be prepared accordingly.

50. Parties are left to bear their own costs.

( Tarlok Singh Chauhan )

Acting Chief Justice

( Virender Singh )

Judge May 10, 2023 ( rajni )