Ravindra Kumar Sood v. J.N. Sinha

16. The Defendant further asserted that, the present Suit is mischievous as it had been instituted by splitting of claims, based on identical cause of action, which attracts the bar of Order II Rule 2 of the CPC. The relief claimed in the present Suit should have been included in the subsequent Suit No. 65/2018 and damages instead of Rs.1,00,00,000/-, ought to have been Rs.1,25,00,000/-,i.e. jointly and severally against NTPC and the Defendant.

17. It was further asserted that Plaintiff had earlier filed Writ Petition

(C) Nos.8930/1993, 1422/1995, 4566/1998 and 5973/1998, challenging the disciplinary proceedings as well as the Show Cause Notice dated 03.11.1998. It was further asserted that, the Plaintiff could have legally claimed damages in the aforesaid Writ Petitions, however, he failed to do the same. It was also contended that, the aforesaid Writ Petitions had been decided on merits and no damages or costs were granted, as the same had not been claimed.

18. It was further asserted that the present Suit is also barred by res judicata, in terms of Section 11 of the CPC. The Plaintiff had filed Writ Petition (C) No.4566/1998, wherein, the relief prayed had been denied by the learned Single Judge of this Court vide Judgment dated 14.07.2011, though anAppeal against the aforesaidJudgment was allowed by the Division Bench of this Court vide Judgment dated 18.11.2015 granting the benefit of promotion to the Plaintiff, though declined other consequential benefits and also damages and costs.

19. The Plaintiff had challenged non-grant of consequential benefits in SLP(C) Nos. 33769-33771/2016, whereby the promotions and consequential benefits were duly granted to the Plaintiff vide final Order dated 12.01.2017. The relief claimed in the present Suit was directly and substantially an issue in Writ Petition (C) No.4566/1998, but was not raised by the plaintiff and therefore, the Suit is barred under Section 11 of the CPC.

20. The next preliminary objection taken by the Defendant was that the challenge to Show Cause Notice dated 03.11.1998, ended by the Judgment of the Division Bench of this Courtdated 18.11.2015, whereby the Show Cause Notice dated 03.11.1998 was quashed. The Order dated 12.01.2017 of the Supreme Court was in regard to the promotions, but the Plaintiff has molded the relief in a fashion to bring the said litigation within the period of limitation. It was thus asserted that, the presentSuit is patently barred by limitation.

21. It was further asserted that there was no cause of action disclosed in the Plaint. It was asserted that the Plaintiff had succeeded in getting exoneration in the Departmental proceedings and thus, had no cause of action for claiming damages. Furthermore, the legality and validity of Show Cause Notice dated 03.11.1998, issued by the Defendant, that is the Reviewing Authority, was not claimed to be an act of malice done in his personal capacity.

22. Moreover, from the acts alleged by the Plaintiff in the Suit, it is not sufficient to hold that the Plaintiff had suffered any damages or loss and the reliefs, as claimed by him, stood extinguished in view of the aforesaid decisions.

23. On Merits, the details of the initiation of Departmental Enquiry on 12/13.11.1986, till the culmination of the entire litigation between the parties, has been mentioned. It was further submitted that, no act of the officers of NTPC was intended to cause any harm to the Plaintiff. He had been duly given all the promotions as per his entitlement. It was asserted that the Suit is liable to be dismissed.

24. The Plaintiff in his Replication, reaffirmed the assertions as made in the Plaint and denied the averments made by the Defendant, in his Written Statement.

25. The learned Additional District Judge framed the following issues on 27.01.2021:

1. Whether the suit of plaintiff is hit by the provision of Order II Rule 2 of CPC? OPD

2. Whether the effect of order dated 12.01.2017 passed by the Hon'ble Apex Court in SLP No. 33769- 33771/2016 on the suit claimed? OPD

3. Whether the suit is without cause of action? OPD

4. Whether the suit claim of the plaintiff is within limitation? OPP

5. Whether the present case is not maintainable against defendant being employee of NTPC? OPP

6. Whether plaintiff is entitled to compensation and damages as claimed in relief clause (a)? OPP

7. Relief.

26. The learned Additional District Judgevide Order dated 06.10.2021, observed as under: “Present: Sh. Omprakash Gupta, Ld. Advocate for the plaintiff. Sh. Rajesh Gupta, Ld. Advocate for the defendant. The Ld. Advocate for the defendant has submitted that the issues no. 1,2, 3, 4 and 5 framed on 27.01.2021 can be decided on the basis of the records of the previous litigation between the parties, which neither party can dispute and without recording of any oral evidence. In

K. R. Impex v Punj Lloyd Ltd., (2019) SCC OnLine Del

6667, the Hon'ble High Court of Delhi has held that the Courts have a duty toensure that no litigation which is deadwood remains pending on the roster of the Courtat the cost of other deserving litigations and it is the duty of the Court to eliminate deadwood litigation at every stage. In view of the said judgment, the matter is adjourned for hearing on the above noted issues and examining whether this suit is required to be taken to trial. List for the said purpose, on 17.12.2021.”

27. The learned Additional District Judge in the Impugned Judgment dated 28.01.2023, noted that the objections in regard to Order II Rule 2 of the CPC, in view of Suit No.65/2018 preferred against NTPC, was untenable, as the Defendant, J. N. Sinha was not a party to that Suit. It was held that the bar of Order II Rule 2 of the CPC could have been attracted only if all the parties in both the Suits were same.

28. It was further held that the Judgment of the Supreme Court would not constitute res judicata and would not result in the inapplicability of constructive res judicata and thus, was not an embargo against the Plaintiff to institute the present Suit.

29. It was further held that the Suit had been filed against the Defendant in his personal capacity, while the earlier Writ Petitions had been filed against NTPC, challenging the disciplinary proceedings, the denial of promotions and also issue of Show Cause Notice dated 03.11.1998.

30. It was further observed that filing of the present Suit against the Defendant, in his personal capacity, was an afterthought, intended to harass him, who had since long retired from the service of NTPC Ltd. It was held that no personal vendetta could be attributed to the Defendantand was held that all the actions done by the Defendant were in his official capacity for and on behalf of NTPC and it could not have been said that the Show Cause Notice dated 03.11.1998 was issued in his personal capacity or was malafidely issued.

31. The relief, if any, was against the employer NTPC and no cause of action was disclosed in the present Suit, which was liable to be dismissed.

32. In respect to the objection in regard to limitation, it was held that the plea of the Plaintiff that the Suit was governed by Article 74 of the Schedule to Limitation Act, 1963 is ex facie untenable in view of the judgment passed by the Rajasthan High Court in D. N. Bandopadhyay vs. Union of India, AIR 1976 Raj 83, wherein it was held that any departmental/disciplinary proceedings initiated by an employer against the employee, could not come under the sweep of word „prosecution‟ as stated under Article 74 of the Limitation Act, 1963. In fact, the Suit of the Plaintiff was governed by Article 79 of Limitation Act, 1963 which pertains to Suits for compensation based on illegal, irregular or excessive distress. Therefore, the Suit ought to have been filed by the Plaintiff within one year of receipt of Show Cause Notice dated 03.11.1998; however, the Suit had been filed on 10.01.2018 and is thus, patently barred by limitation. The Suit of the Plaintiff was accordingly, dismissed.

33. Aggrieved by the Judgment and Decree dated 28.01.2023, the Plaintiff has preferred the present Regular First Appeal under Section 96 read with Order XLI Rule 1 of the CPC.

34. The Grounds of Challenge are that the Impugned Judgment is against law and facts, applicable to the present case. The SLPs filed by NTPC were dismissed vide Order dated 12.01.2017, by upholding the findings of the Division Bench of this Court, that the Show Cause Notice dated 03.11.1998 was malafide.

35. It was contended that the present Suit is governed by Article 101 of the Limitation Act, 1963, which prescribes a period of limitation of three years. It was further contended thatthe cause of action attained finality only upon the passing of the Order dated 12.01.2017 by the Supreme Court, whereby the quashing of the Show Cause Notice dated 03.11.1998, was upheld. Accordingly, it was asserted that the present suit had been instituted within the prescribed period of limitation.

36. It was claimed that the learned Additional District Judge erred in placing reliance upon the decision of this Court in K.R. Impex v. Punj Lloyd(supra). The said decision was inapplicable to the facts of the present case, as it arose out of a commercial dispute involving monetary transactions, whereas the present Suit pertains to a claim for damages arising from the Defendant's alleged malafide and arbitrary acts.

37. It was further contended that notwithstanding his exoneration in the disciplinary proceedings vide Order dated 09.12.1997, the Defendant had victimized the Plaintiff thereafter, by issuing the Show Cause Notice dated 03.11.1998. Such arbitrary issuance of the Show Cause Notice, had impacted the career and reputation of the Plaintiff and caused mental torture, harassment, agony and humiliation to the Plaintiff.

38. It was lastly contended that the causes of action in the two Suits instituted by the Plaintiff, are distinct and independent. The Defendant herein could not have been impleaded as a party in the other suit. According to the Plaintiff, the present Suit has been instituted on account of the Defendant's alleged malafide issuance of the Show Cause Notice dated 03.11.1998 and the continued failure to withdraw the same, despite the Order dated 12.01.2017 of the Supreme Court. In contrast, CS NO. 65/2018 was instituted against NTPC seeking promotions and consequential benefits, allegedly due to the Plaintiff. Submissions heard and record perused.

39. The factual matrix, giving rise to the present Suit, is not in dispute. The Plaintiff, was an employee of NTPC, who was charge-sheeted twice for misconduct, firstly in the year 1986 under the chargesheet dated 12/13.11.1986 and thereafter, in the year 1988 videcharge-sheet dated 01.03.1988.

40. In the second charge-sheet, he was found guilty and penalty of removal from service was imposed upon him. However, in Departmental Appeal, the Appellate Authority modified the punishment to that of “censor”vide Order dated 30.12.1988. This final penalty in the second Charge-Sheet, was not challenged but was accepted by the plaintiff.

41. In respect of first charge-sheet, he was found guilty and the Disciplinary Authority imposed punishment of withholding one increment with cumulative effect from w.e.f. 01.10.1988. In the Departmental Appeal, the Appellate Authority vide Order dated 01.01.1994 modified the penalty and replaced the word „with‟ by „without‟. The punishment imposed on the Plaintiff was modified to “withholding of one increment without cumulative effect w.e.f. 01.10.1988”.

42. Thereafter, a Departmental Review was filed by the Plaintiff, seeking right to cross-examine the Management witnesses. The Review was allowed and the punishment imposed upon him was quashed and the enquiry was directed to be reopenedand to grant an opportunity to the Plaintiff to cross-examine the Management witnesses. The enquiry proceedings were then concluded and Disciplinary Authority exonerated the Plaintiff vide Order dated 09.12.1997. He thereafter, filed representations to Executive Director/Reviewing Authority for promotions, as a consequence of his exoneration.

43. In the integrum, the Defendant, who was the Executive Director/Reviewing Authority took an overall view of the disciplinary proceeding and found it necessary to invoke the powers under Rule 33 of NTPC (CDA) Rules and issued Show Cause Notice dated 03.11.1998 in respect of first chargesheet and proposed imposition of penalty of “censor” in terms of Section 23(A) of NTPC (CDA) Rules. The impugned Show Cause Notice was accordingly, issued to the Plaintiff seeking response, as to why such penalty should not be imposed upon him.

44. Admittedly, the Defendant was the Executive Director, who in his capacity as Reviewing Authority, issued the Show Cause Notice dated 03.11.1998. The Plaintiff has claimed such act of issuance of Show Cause Notice by the Reviewing Authority as malafide, willful and had thus claimed compensation of Rs.25,00,000/- from the Defendant. Whether the Plaint disclosed any Cause of Action:

45. The first aspectis whether the Plaint discloses any cause of action. While the Plaintiff has explained the entire checkered history of multiple litigations in the Plaint, however, not even a singleaverment is contained in the Plaint to disclose how the acts of the Defendant his personal capacity was malafide or motivated, entitling the Plaintiff to the compensation.

46. Throughout the Plaint, it is only the acts of NTPC which have been referred and not a single act has been attributed to the Defendant to have been done malafide or with an intent to cause loss and harm to the Plaintiff. It was for the Plaintiff to explain how issuance of such Show Cause Notice was an individual and a motivated act of the Defendant, in his personal capacity. There is no circumstance detailed in the Plaint disclosing any personal liability of the Defendant; who acted only in the capacity of the Reviewing Authority and after he ceased to be the Reviewing Authority, such acts were continued by the Officers, who got appointed in his place.

47. It may also be observed that even though the Plaintiff had been exonerated by the Disciplinary Authority,but Rule 33 of the NTPC (CDA) Rules permitted the Reviewing Authority to consider the true facts and to admit or reject the Report of the Disciplinary Authority. The Order of Disciplinary Authority could thus, be reopened and reviewedby the Reviewing Authority.

48. In order to establish that it was malafide, the plaintiff had to disclose the relevant facts to disclose the basis of asserting malafide on the part of defendant, which conspicuously is missing in the Plaint. Mere issuance of a Show Cause Notice, as permitted under the Rules, would not be sufficient to even prima facie establish a case of malafide, entitling the plaintiff to any compensation.

49. No cause of action is disclosed against the defendant, as rightly held by the Ld. DJ, while dismissing theSuit. Whether the Suit is barred by Limitation:

50. In this context, it would be pertinent to note that the Plaintiff challenged the Show Cause Notice dated 03.11.1998 vide Writ Petition

(C) No.5973/1998, which was decided vide Order dated 14.07.2011, noting that even though the Plaintiff had been exonerated by the Disciplinary Authority, but Rule 33 of the NTPC (CDA) Rules gave the power to the Reviewing Authority to review any Order of the Disciplinary Authority. The Rules permitted the Reviewing Authority to consider the true facts and to admit or reject the Report. The Order of Disciplinary Authority could thus, be reopened and reviewed by the Reviewing Authority.

51. The learned Single Judge further noted that such act of the Reviewing Authority was justified under the Rules and it could not be termed as illegal. It was further noted that there was no delay on the part of the Reviewing Authority in issuing the said Show Cause Notice, which was issued on 03.11.1998, in accordance with law and Reviewing Authority could not be faulted in having exercised its power of review. However, considering that the Plaintiff had been fighting since 1986 and the Writ Petition was his fourth round of litigation, the matter was thus, required to be given a quietus by the Respondent and thus, the Show Cause Notice dated 03.11.1998 was quashed and consequently theWrit Petition was allowed.

52. Aggrieved by such quashing of Show Cause Notice, NTPC preferred LPA No.731/2011, wherein the Division Bench held firstly, that the Plaintiff was entitled to his promotions, in accordance with the Rules, but in respect of the Show Cause Notice dated 03.11.1998, it was found that Disciplinary Authority had submitted its Report on 09.12.1997, exonerating the Plaintiff from all the charges. It was noted that the Show Cause Notice dated 03.11.1998 was issued after a period of 11 months, after the Plaintiff filed the Writ Petition (C) No.4566/1998 seeking promotion, which stirred the hornet‟s nest and led to issuance of the aforesaid Show Cause Notice.

53. It was noted that the timing of issuance of Show Cause Notice dated 03.11.1998, was suspicious and malafide. Consequently, the quashing of Show Cause Notice,as directed by the learned Single Judge videJudgment dated 14.07.2011 was upheld, though for different reasons, by the Division Bench vide Judgment dated 08.11.2015.

54. It is evident from the aforesaid checkered history that the Show Cause Notice dated 03.11.1998 was challenged by the Plaintiff as malafide, way back in 1998 and he succeeded in getting the Notice quashed by the learned Single Judge in 2011, which subsequently was upheld by the Division Bench in 2015.

55. In this backdrop, it becomes relevant to consider whether the Suit has been filed within the period of limitation. The cause of action for filing the present Suit arose with the issuance of Show Cause Notice dated 03.11.1998. If the Plaintiff felt that such act of the Defendant was malafide, he had every right to institute a Suit. The cause of action arose in November, 1998; the Suit challenging the act of Defendant should have been filed within a period of limitation from 1998, when the cause of action first arose. It was for the Plaintiff to justify the malafide of the Show Cause Notice, which was not dependent on any confirmation, in any judicial proceeding.

56. In this context, itmay beobserved that the Show Cause Notice, was being challenged since 1998 itself, when Writ Petition (C) NO. 5973/1998 was filed by the Plaintiff. No new circumstances have emerged to claim the malafide of the Defendant. This further confirms that the cause of action had arisen from the date of issuance of Notice in 1998, which plaintiff chose to challenge by way of the aforesaid Writ Petition against NTPC, but failed to pursue his remedy against the defendant, in his personal capacity, which he chose to avail byfiling the Suit on 10.01.2018, by when it had got hopelessly barred by Limitation.

57. The second aspect, which emerges is that the Show Cause Notice was quashed, firstly in 2011 in Writ Petition (C) No. 5973/1998. Even if it is accepted that the cause of action did not arise in November, 1998 at the time of issuance of Show Cause Notice, then giving the benefit of thisWrit Petition, it definitely arose in 2011, when the Show Cause Notice was quashed by the learned Single Judge, vide Judgement dated 14.07.2011.

58. Even if it is held, for the sake of arguments that the malafide of the Show Cause Notice, was actually adjudicated and established by Division Bench in its judgement dated 08.11.2015, then too, in terms of Article 79 of the Schedule to the Limitation Act, 1963, the present suit could have been filed within one year, while the suit is filed on 10.01.2018, which is patently barred by limitation.

59. It needs to be ascertained at the outset, whether the period of limitation is one year in terms of Article 74 of the Schedule to the Limitation Act, 1963 from the date of termination of Prosecution or one year from the date of distress, in terms of Article 79of the Schedule to Limitation Act, 1963.

60. The learned Additional District Judge had tried to draw the distinction between Article 74 of Schedule to Limitation Act, 1963 which provides for limitation of one year for claiming compensation for malicious prosecution. In the present case, the entire claim of the Plaintiff was based on the issuance of Show Cause Notice dated 03.11.1998. First and the foremost, issuance of the said Show Cause Notice was in accordance with the rules of the NTPC and therefore cannot be termed as malicious prosecution.The learned Additional District Judge rightly noted that it was a case governed by Article 79 of the Schedule to Limitation Act, 1963 which provided for compensation for irregular, illegal or excessive distress from the date of such distress. The focal point for the alleged distress to the Plaintiff was the Show Cause Notice dated 03.11.1998 and, therefore, the learned Additional District Judge has rightly held that as per Article 79 of the Schedule to the Limitation Act, 1963, the limitation for filing the present Suit was one year from the date when the Show Cause Notice dated 03.11.1998 was issued and not the final decision of the Supreme Court on 12.01.2017.

61. Furthermore, the contention of the Plaintiff that the Order dated 12.01.2017 passed by the Supreme Court in the aforesaid SLPs rendered the present Suit to be within the period of limitation is misconceived.The Plaintiff in the SLP, agitated his claim for Promotion, etc. and NTPC had not challenged the quashing of the Show Cause Notice, which stood concluded by the Division Benchvide Judgment dated 08.11.2015. Therefore, subsequent filing of SLP or its decision, in no manner concerned itself with Show Cause Notice, and could not have furnished the starting point for the calculation of Limitation.

62. The Suit was patently barred by Limitation, as has been rightly held by the learned Additional District Judge. Conclusion:

63. The Learned Additional District Judge has therefore, rightly dismissed the Suit, as not disclosing any cause of action and being patently barred by limitation.

64. In view of the aforesaid discussion, there is no merit in the present Appeal, which is hereby, dismissed. Pending Application(s), if any, also stand disposed of.

JUDGE JULY 01, 2026