Delhi District Court
Mother Dairy Fruit & Vegetable Pvt. Ltd. vs . Rakesh Kumar Sharma on 28 November, 2018
Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
RCA NO. : 35/2016
UNIQUE CASE ID NO. : 61679/2016
IN THE MATTER OF :
Mother Dairy Fruit & Vegetable Pvt. Ltd.
Earlier known as Mother Dairy
Patparganj, Delhi
Through its General Manager .... Appellant/Defendant
VERSUS
Sh. Rakesh Kumar Sharma
S/o Sh. P.R. Sharma
R/o E162, Naraina Vihar,
New Delhi110028. .... Respondent/Plaintiff
Date of institution of the Appeal : 04/01/2012
Date on which Judgment was reserved : 24/11/2018
Date of Judgment : 28/11/2018
FIRST APPEAL UNDER SECTION 96 ORDER 41 READ WITH
SECTION 151 CPC AGAINST THE JUDGMENT DATED
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
5.12.2011 AND THE DECREE DATED 5.12.2011 PASSED
BY SENIOR CIVIL JUDGE CUM RC (CENTRAL) IN SUIT NO.
S648/06/95.
:J U D G M E N T:
1. The Appellant was defendant No.3A and respondent was
plaintiff before the Ld. Trial Court. The appellant and
respondent are respectively referred in this Judgment
according to the original status before the trial court. The
defendant No.3A/Appellant is dissatisfied with the Final
Judgment and Decree dated 05.12.2011 passed by the Ld.
Trial Court in Civil Suit No. 648/06/95.
2. Succinctly stated, the Plaintiff has filed a Suit for Permanent
Injunction and Declaration (which was filed in the year 1986
and amended in the year 2011) against the defendants inter
alia on the following facts:
(a) The plaintiff was working as Personal Officer with
Mother Dairy since 01.04.1986 and has been performing
his duties to the entire satisfaction of his superiors.
(b) Mother Dairy invited applications by way of an
advertisement dated 24.1.1986 in leading national daily
for various posts lying vacant with it and one of the
posts advertised was that of Manager (Personal and
Administration). Plaintiff applied for the said post and
received test and interview call letter dated 15.3.1986
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
and appeared in written test and interview on 3.4.1986.
The criteria of selection for the said post was on the
basis of test/interview, qualification and experience.
Plaintiff was declared successful and was placed at no.1
in merit list on the basis of result of the written test,
personal interview, qualifications and experience.
(c) The Plaintiff was called upon by Sh. D. Bhatnagar,
Assistant Manager (Personal and Administration) who
took him to the office of Dy. Gen. Manager where he was
told that he has been awarded the post and was
required to join duty on 11.4.1986. However, when the
plaintiff asked for proper appointment letter, he was told
that he would be issued the same at the time of joining.
Plaintiff on the said assurance left his previous service
and reported to the Mother Dairy on 11.4.1986 to join
the duties as Assistant Manager (Personal and Admn.)
but plaintiff was shocked to see that the letter of
appointment dated 9.4.1986 issued and signed by Sh.
S.K. Dass, Dy. General Manager, Mother Dairy, Patpar
Ganj, Delhi and received by plaintiff on 11.4.86 which
was however got signed in token of receipt in previous
date i.e. 9.4.1986 was that of as Personal Officer in pay
scale of Rs.70040900EB401100501300 with basic
pay of Rs.740/ per month and the appointment offered
was temporary. Sh. S.K. Dass, Dy. General Manager,
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
Mother Dairy, Patpar Ganj, Delhi assured the plaintiff
that it has been done to absorb the plaintiff at an earlier
occasion and he will soon be given his post of Assistant
Manager (Personal and Administration).
(d) The Plaintiff had no choice at that time but to join the
services of Mother Dairy since if plaintiff had refused to
join then it would have rendered him jobless. Sh.
Sanjeev Chaudhary, The Asstt. Manager (Personal &
Administration), Mother Dairy, Patpar Ganj, Delhi and
Sh. Surinder Raj, A.M. (Fruit & Vegetable) Personal,
Mother Dairy, Patpar Ganj, Delhi were placed on second
and third position in the merit list prepared on the basis
of result and performance, however, Sh. Sanjeev
Chaudhary, The Asstt. Manager (Personal &
Administration) has been appointed as Asstt. Manager
(Personnel and Administration) with Mother Dairy,
Patpar Ganj, Delhi and Sh. Surinder Raj, A.M. (Fruit &
Vegetable) Personal has been offered appointment of
Asstt. Manager (Personnel and Administration) in Food
and Vegetable section of Mother Dairy, Patpar Ganj,
Delhi and had not joined.
(e) The plaintiff placed at position no.1 in merit list was
called first of all to join the duties and actually joined
the duties prior to Sh. Sanjeev Chaudhary and Sh.
Surinder Raj, however has been appointed at lower
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
position in lower scale of pay. Plaintiff is pressurized to
perform the duties of a clerk and junior staff. Even on
26.9.86, Sh. S.K. Dass, Dy. General Manager, Mother
Dairy, Patpar Ganj, Delhi called the plaintiff and asked
him to took for some other job and leave the post of
Personnel Officer and on enquiry, the plaintiff was told
that Sh. S.K. Dass intends to fill up this post by giving
promotion to one of his friend who was supervisor and
even advised his said friend to move to the court for
enforcement of his claim against the post of Personnel
Officer.
(f) Thus, it was stated that defendants intend to terminate
the plaintiff's service without any reason and the action
of defendants is illegal, bad, improper and unjustified
and against the principles of natural justice. It was
prayed that the defendants be restrained permanently
from terminating/ removing/ dismissing the plaintiff
from his job and a decree of declaration be also passed
declaring that plaintiff is entitled to be appointed to the
post of Assistant Manager (Personnel and
Administration) since 11.4.86 and is entitled to all
benefits of said post and by way of Amendment it was
prayed that the termination order dated 01.10.86 is bad
in law.
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
3. The defendants No.2 to 6 have filed their written statement
and on amendment of the plaint amended written statement
was filed wherein the defendants have raised the following
defence:
(a) The suit is not maintainable in the present form, is bad
for misjoinder of cause of action, is not valid for
purposes of jurisdiction and court fee and is premature.
(b) The plaintiff was not found eligible to be considered for
the post of Manager (Personnel & Administration) in the
context of his application put up in response to the
advertisement dated 24.1.1986 and therefore, he was
called for written test and interview for the post of
Assistant Manager (Personnel) because he was eligible
for the post. It was also stated that vide letter dated
25.3.1986, it was conveyed to the plaintiff that as per
the qualification and experience enclosed with the
application, the same coincided with the conditions of
eligibility for the post of Assistant Manager (Personnel)
only and not for the post of Manager (Personnel &
Administration) and in case he is interested to be
considered for the post of Assistant Manager
(Personnel), he may attend the test and interview on
3.4.11.
(c) It was denied that plaintiff was declared suitable and
successful and placed at serial no. 1 and it was stated
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
that he was not at all selected for the said post of
Assistant Manager (Personnel) because he was not
found suitable. The criteria for selection of the
candidates to the post of Assistant Manager (Personnel)
is based on the test and interview only and soon after
the interview was over, an offer was extended to the
plaintiff by Selection Committee that there was a post of
Personnel Officer in the pay scale of Rs. 7001300
available with the defendant no.3 and the plaintiff could
be considered if he so desire for the said post on the
basis of his performance in the interview and written
test and plaintiff agreed to the said offer.
(d) It was denied that any assurance was extended to the
plaintiff or any appointment was agreed to be made to
the plaintiff against the post of Assistant Manager
(Personnel). It was stated that offer of appointment
against the post of Personnel Officer was given to the
plaintiff on 9.4.1986 itself personally and it was denied
that plaintiff received the said offer of appointment on
11.4.1986. As stated, the plaintiff agreed to the terms
and accepted the same on 9.4.1986 itself. It was stated
that plaintiff was not found suitable for the post of
Assistant Manager (Personnel) and therefore, he did not
find any place in the merit list. Defendant no. 6 and 7
were placed at serials no. 1 and 2 on merit list and
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
therefore, defendant no. 6 was appointed as Assistant
Manager (Personnel) in mother dairy and defendant no.
7 was offered the post of Assistant Manager (Personnel)
in Fruit & Vegetable unit of Mother Dairy but defendant
no. 7 did not join the duty. There was no other person in
the merit list for the post of Assistant Manager
(Personnel). It was denied that any pressure was put on
the plaintiff or his nature of duties was different from
those attached with the post of Personnel Officer.
4. Replication was filed in which contents of the plaint were
reiterated and those of the amended written statement were
denied.
5. On the pleadings of the parties, following issues were framed
vide order dated 24.3.95:
1. Whether plaintiff is entitled to the relief of
permanent injunction and declaration as prayed
for or not? OPP
2. Whether suit is bad for misjoinder/nonjoinder?
OPD
3. Whether the suit is non maintainable as
defendants are not a State? OPD
4. Whether the suit is non maintainable in view of
the principles of acquiescence and estoppel? OPD
5. Relief.
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6. The Plaintiff in support of his case, examined himself as PW1
whereas defendants examined DW1 Sh. R.T. Wadhwa.
7. The Ld. Trial Court has passed the impugned Judgment and
decree dated 05/12/2011, whereby the suit of the plaintiff
was decreed. The defendant No.3A aggrieved from the
Judgment and decree passed by the Ld. Trial Court has
sought to set aside Judgment and decree 05/12/2011 and
praying for dismissal of Suit interalia on the following
grounds :
A] Because specific performance of contract cannot be given
by the civil court. In view of the same, no reinstatement
and other relief, as granted, could have been given by the
civil court.
B] Because the termination of the respondent was termination
simplicitor when he was on probation basis. Appointment
letter was duly accepted by the respondent. In view of the
same, he ought not to have been granted the relief as given.
It is submitted that on probation, especially when the
termination order is not punitive, same should not be
interfered into as has been held in catena of decisions.
When the probation clause is stated in the appointment
letter, an employee can be terminated in accordance with
the same.
C] Because, without prejudice to the above, it is submitted
that it is not within the power of the civil court to grant
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reinstatement and other reliefs. Without prejudice to the
fact that the respondent was not entitled to any relief, at
the most the relief of damages could have been given.
D] Because in the present case, no stigma was attached in the
termination letter. In view of the same also, the relief, as
granted, ought not to have been granted.
E] Because without prejudice to the above, it is submitted
that the respondent had worked for a very short span of
time and in view of the same also, the relief, as granted is
arbitrary. The respondent had merely worked for about 6
months only. He was on probation and merely on
temporary basis.
F] Because the reliance on the judgment, as stated in the
impugned judgment, is misplaced. The proposition, as
given in the judgments, has not been rightly applied in the
present case and has not been correctly interpreted.
Present is a case where no punitive action has been taken.
G] Because it is submitted that the reason given by the Ld.
Senior Civil Judge stating the termination letter to malafide
are baseless. It is submitted that merely by writing date in
hand, or not writing date below signatures does not make
the termination malafide. The termination was given and
had no connection to the case filed by the respondent. In
fact said allegation has not been made by the respondent
even in his pleadings. No reference to the date of filing,
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termination, etc. has been given by the respondent in his
pleadings. But the Ld. Senior Civil Judge had own its own
assumed the said contention. The findings given in the
impugned judgment are beyond pleading and have not
been contended anywhere by the respondent. In fact the
Ld. Judge failed to note that it was the respondent
throughout the proceedings in court contended that he had
not received the termination letter. He had contended so
even in his evidence. It was only after 25 years after
proceeding in court that he amended his plaint and
challenged the termination. The malafide was on the part
of respondent to have concealed the termination letter,
even though the same was served upon him through Regd.
AD.
H] Because amendment in plaint after a span of 25 years, that
too when the same fact was denied by the respondent
earlier ought not to have been allowed. In fact, on perusal
of the order dated 25.11.2011, it is seen that it had been
the contention of the respondent that the fact of
termination had escaped the notice of the respondent/
plaintiff.
I] Because it is submitted that as the respondent was on
probation basis, therefore, no show cause, enquiry was
required for him as alleged by him.
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J] That the respondent was on probation basis, he was only
on temporary basis, in view of the same relief granted is
arbitrary.
K] Because the appellant had not conceded that it is a
Government/ State. In fact, on perusal of the pleadings, it
is seen that the respondent has categorically held that it is
not a statutory body regulated by any Act of Parliament or
any statutory rules or regulations.
L] Because it is submitted that by doing a job in a
corporation, one does not become a civil servant. In any
case, the relief as granted could not have been granted as
specific performance of contract cannot be done.
M] Because the Ld. Senior Civil Judge has already held in
favour of the Appellant herein that since the Respondent
herein had already joined his services as Personal Officer
and therefore the principle of estoppels applied and that
the respondent is not entitled to be treated as appointed in
the post of Assistant Manager (personnel and
administration).
N] Because the respondent had made frivolous allegations
after 6 months of joining. The same also shows his
malafide.
O] Because the respondent is registered with bar council and
in view of the same also the relief of reinstatement and
other reliefs ought not to have been granted. In this regard
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reference be made to his attestation form annexed with the
documents.
P] Because the appointment letter was accepted by the
respondent and therefore he had also accepted the term of
the appointment letter that termination can be done during
probation.
8. In the aforesaid background, the following points for
determination arise for the consideration of the present
case:
i) Can the order under question be termed as perverse,
capricious and arbitrary?
ii) Does the impugned order run against the legal framework
operating in and principles enunciated in this sphere?
iii) Does determination of point for determination no.1 or 2
warrants any indulgence or interference of the present
Court with the order appealed against?
iv) What order?
POWER OF THE APPELLATE COURT IN FIRST APPEAL:
Before adverting into the assessment of the factual
aspect emerging from the evidence led on the record and
proceedings of the present lis, it is worthwhile to lay bare the
powers and jurisdiction that can be exercised by the present Court
being First Appellate Court. This Court is being termed as the last
court for evaluating, reappreciating and reassessing the factual
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aspect that may be emerging from the record and proceeding of the
lis, popularly known as Court of facts and law. The precinct of the
power lies in the court coextensive with the trial court and can
exercise all the powers that have been vested in the trial court in
respect of evaluation and appreciation of evidence and conclusion
be drawn on the basis of the fresh evaluation of the evidence and
facts be put in the jacket of laws which may be both adjective and
substantial one.
An appeal is continuation of suit. More than hundred
years ago, Couch, C.J. In Ratanchand Shrichand Vs. Hanmantrav
Shivbak as stated:
"A suit is a judicial proceeding, and the word
"proceedings" must be taken to include all the
proceedings in the suit from the date of its
institution to its final disposal, and therefore to
include proceedings in appeal."
Appeal is rehearing of the suit. The appellate court
possesses the same powers and discharges the same duties as that
of the original court. Once an appeal is preferred, the matter
becomes subjudice and the appellate court is seisin of the whole
case. The hearing of the appeal is thus rehearing of the suit or
original proceeding.
As West, J. stated, "The legal pursuit of a remedy, suit,
appeal and second appeal are really but steps in a series of
proceedings all connected by an intrinsic unity and are to be
regarded as one legal proceeding."
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
"Sec.107. Powers of appellate Court(1) Subject
to such conditions and limitations as may be
prescribed, an Appellate Court shall have power
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such
evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall
have the same powers and shall perform as nearly
as may be the same duties as are conferred and
imposed by this Code on Courts of original
jurisdiction in respect of suits instituted therein."
POWER TO DECIDE A CASE FINALLY; SECTION 107(1)(a)
An Appellate Court can decide a case finally. Where the
evidence on record is sufficient to enable the appellate Court to
pronounce the judgment, it may finally determine the case
notwithstanding that the judgment of the trial court has proceed
wholly upon some ground other than that on which the appellate
court proceeds. The general rule is that a case should, as far a
possible be disposed of on the evidence on record and should not be
remanded for fresh evidence, except in rare cases, by drawing a
final curtain on the litigation between the parties. "If life like a dome
of many coloured glass stains the white radiance of eternity, so do
the doings and conflicts of mortal beings till death tramples them
down."
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
POWER TO INTERFERE WITH DISCRETION OF LOWER COURT
As a general rule, a court of appeal will not interfere
with the exercise of discretion by the court below and substitute its
own discretion for the discretion of the lower court. It has been said
that where the legislature has left the matter in the discretion of a
court and with the same pen and ink has provided an appeal from
the decision of the court, the task of the court of appeal is not to
consider how it would have exercised the discretion, but to examine
whether the court below has exercised the discretion judicially and
in accordance with well recognized principles of law. Where the
discretion has been exercised in good faith on a consideration of all
relevant materials and circumstances and without being swayed by
irrelevant matters and no injustice has been done by such exercise
of discretion by the court below, the appellate court will not
interfere with it even if it does not agree with the exercise of
discretion by the trial court.
In certain cases however, it is not only the power but the
duty of the appellate court to interfere with exercise of discretion by
the Court below. Where the trial court had acted arbitrarily or
capriciously or in total disregard of sound judicial principles, or
without taking into consideration relevant and germane factors or
had proceeded on assumptions not borne out or justified by
records, or had applied wrong or incorrect legal principles leading to
an unjust order, or where was abuse of power by the court below or
if the court below fails to exercise discretion or where there is
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miscarriage of justice, the appellate court will interfere with the
discretion.
The power of interference, however, should be exercised
sparingly and with circumspection. Though the power of the
appellate court is wide, ample and unrestricted it should not be
exercised unless such exercise is necessary to relieve the aggrieved
party and in the larger interest of justice.
The possibility of the appellate court coming to a
different conclusion does not justify interference with the discretion
exercised by the court below. The mere fact that the court below
has not recorded cogent or sufficient reasons for exercising
discretion in a particular manner is no ground for interference by
the appellate court if the facts on which discretion has been
exercised are present. The burden is on the appellant to prove that
the discretion had not been exercised judicially.
POWER TO APPRECIATE EVIDENCE
An appeal is a continuation of suit. The appellate court
hence, can review the evidence as a whole subject to statutory
limitations, if any, and can come to its own conclusion. Once a
decree passed by the court of original jurisdiction has been
appealed against, the matter becomes subjudice and the appellate
court is seisin of the whole case. The hearing of appeal is really re
hearing of the suit.
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POWER TO MODIFY DECREE
An appellate court may pass any decree or made any
order which ought to have been passed or made and may also pass
or make such further or other decree or order as the case may
require. The said power may be exercised by the appellate court not
only between the appellant and the respondent but also between
the respondent interse. The provision enables the appellate court
to grant a relief not only to the appellant who has filed an appeal
but also to the respondent who has neither filed an appeal nor filed
crossobjections.
OTHER POWERS
An appellate court may pass any order which could and
ought to have been passed by the original court. It can also make
such other or further order as the case may require. An appellate
court is competent to make any incidental or interlocutory order as
could have been made by an original court.
Thus, during the pendency of appeal, if the defaulting
tenant pays rent, an appellate court may grant relief against
forfeiture. Looking to the conduct of the tenant, however, it may
decline to grant relief. The question is not one of jurisdiction but of
discretion. Similarly, the appellate court may pass a decree if it is of
the view that such a decree ought in law to have been passed by the
trial court. In a suit for redemption, an appellate court may
investigate into claim for damages for waste by the respondent
during the pendency of appeal. It can also hold local inspection. It
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can record compromise in execution proceedings. It can restore an
appeal dismissed for default of appearance, delete or substitute
parties in appeal, can permit withdrawal of appeal, can appoint
receiver or commissioner, can reconstruct record lost or destroyed,
can set aside exparte decree to reject plaint or memorandum of
appeal, can reject plaint or memorandum of appeal; can stay
execution proceedings etc.
ISSUE WISE DISCUSSIONS, FINDINGS AND CONCLUSIONS
ISSUE NO.2
2) Whether suit is bad for misjoinder/nonjoinder? OPD
The onus to prove this issue was upon the defendants
but the defendants have failed to lead any evidence in this respect.
Moreover, in terms of the provisions of Order 1 Rule 9 CPC, the
misjoinder of party is no ground to dismiss the suit and it is mere
irregularity. The defendant No.3A/Appellant has not been able to
make out the case of nonjoinder of necessary party in terms of
proviso to Order 1 Rule 9 CPC. The appellant/ defendant no. 3A
has failed to pointout that the plaintiff has not made the party in
the suit which is necessary party and without whom no effective
decree could be passed. The Appellant/defendant No.3A is the
necessary party and the Ld. Trial Court has rightly decided the
issue in favour of the Plaintiff and against the defendants. This
Court does not find any infirmity in the said findings.
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ISSUES NO.1,3 AND 4
1) Whether Plaintiff is entitled to the relief of permanent
Injunction and declaration prayed for or not ? OPD
3) Whether the suit is non maintainable as defendants are not
a State? OPD
4) Whether the suit is non maintainable. In view of the
principles of acquiescence and estoppel ? OPD
Issues Nos.1, 3 and 4 are interrelated and inter
connected to each other and accordingly they are considered
together.
The Ld. Trial Court has held that issue No.3 has become
redundant because during the course of arguments it was conceded
by the Ld. Counsel for the defendants that defendant No.2 is a
Government/State. Hence this issue is decided in favour of the
Plaintiff and against the defendants. However, the
Appellant/Defendant has argued that no instructions whatsoever
were given to the Ld. Counsel for the defendants to make
submission that defendant No.2 is Government/State and moreover
the Plaintiff was not the employee of defendant No.2 but as
defendant No.3 and the Ld. Trial Court has not considered whether
the defendant No.3, which is now defendant No.3A was/is a
Government/State. The Ld. Counsel for defendant No.3A further
argued that Appellant/Defendant No.3 or 3A was/is never been
Central Government/State/ Government and even by any stretch of
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imagination merely submitting by the Ld. Counsel for the
defendants that defendant no.2 is a Government/State, it does not
become Central Government/ State/ Government or
instrumentality of Central Government/ State, as it has far
reaching effects.
I find force in the submissions of the Ld. Counsel for
defendant No.3A/Appellant that such issue can't be conceded as it
has far reaching effects/repercussions. Moreover, there cannot be
any estoppel against Statute. The moment the Mother Dairy Fruit &
Vegetable Pvt. Ltd. is considered as Central Government/State/
Government or Instrumentality of the Central Government/
Government then necessary incidents may fall upon them. The
Instrumentality of the Government/State has different character
then the Central Government/Government/State.
The Ld. Counsel for the defendant No.3A has argued
that counsel who was conducting the case before the Trial Court
has no authority to make such a statement which is totally against
the statue and law. This Court is independently examining Issue
No.3 dehors the findings of the Ld. Trial Court that said issue had
become redundant on account of submission of the Ld. Counsel for
defendants before the Ld. Trial Court that defendant No.2 is a
Government/State. Moreover, the Ld. Trial Court had nowhere held
that defendant No.3 (who is now defendant No.3A) was/is Central
Government/State or instrumentality of Central Government/State.
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Whether defendant No.3/3A is Government/State or
instrumentality of Central Government/State, the Principles as
enunciated by the Hon'ble Supreme Court are laid down is
discussed hereinbelow.
PRINCIPLES OF ARTICLE 12 OF THE CONSTITUTION OF INDIA
In R.D. Shetty Vs. The International Airport Authority
MANU/SC/0048/1979 : (1979)IILLJ217SC it was held that
if a body is an agency or instrumentality of Government,
it may be an authority within the meaning of Article 12
whether it is Statutory Corporation, a Governmental
Company or even a registered society.
In the Leading case of AJAY HASIA VS KHALID MUJIB
MANU/SC/0498/1980 : (1981)ILLJ103SC : (1981)ILLJ103SC
the following test for determining whether an entity is an
instrumentality or agency of the state was laid down;
i) If entire Share Capital of the corporation is held by Govt.
it is a state;
ii) If financial assistance of state is so much that it meets
almost entire expenditure of the corporation, it would
afford some indication of being impregnated with govt.
character.
iii) Existence of deep and Pervasive control.
iv) Functional character being Governmental in essence i.e.
if the function of the corporation enjoys monopoly which
is state conferred or state protected.
v) If the department of the Govt. is transferred to a
corporation.
vi) If the function of the corporation are of public
importance and closely related to govt. functions.
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
The above Judgments have been cited with approval by
Seven Bench of Hon'ble Supreme Court in the case titled
Pradeep Kumar Biswas and Ors. Vs. Indian Institute of
Chemical Biology and Ors. 2002(3) SCALE638= (2002) 5
SCC 111 = [2002]3SCR100.
The Ld. Counsel for the Respondent/ Plaintiff has
also relied upon the following Judgments:
1. Paras No.8, 10, 15, 16, 21 to 23 of the Judgment of Janet
Jayapaul (DR) Vs. S.R.M. University and Ors. I (2016) SLT 17
were referred and submitted that the Courts all over the world
including in India that the approach of the Court while
deciding such issue is always a test as to whether the
concerned body is formed for discharging any "Public
Function" or "Public duty" and if so, whether it is actually
engaged in any public function or/ and performing any such
duty.
2. Sukhdev Singh and Ors. Versus Bhagat Ram Sardar Singh
Raghuvanshi and Anr, A.I.R. 1975 SC 1331 Oil and Natural
Gas Commission, Life Insurance Corporation and Industrial
Finance Corporation are 'authorities' within Art. 12 Rules
and Regulations framed by these statutory Corporations have
the force of law Their employees have a statutory status and
are entitled to declaration of being in employment when their
dismissal or removal is in contravention of statutory
provisions.....
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
FINDINGS AND CONCLUSIONS
The question arises for consideration is whether
defendant no.3 (now 3A) falls under any of the aforesaid five
principles. Issue No.3 was framed by the Ld. Trial Court and the
onus was cast upon the Defendants to prove the aforesaid Issue.
The contention of the Plaintiff for the aforesaid issue has been
raised by the Plaintiff in para no.2 of the Plaint, whereby, the
Plaintiff has alleged that defendant No.3 which is being managed by
defendant No.2 (NDDB) and being financed by defendant no.1 is
supplying Milk, Milk Products, Butter Oil and Vegetables etc. to the
Public. The defendants has replied the said para No.2 and
submitted that para no.2 of the plaint as stated is not correct. The
Defendant No.3 has denied that Defendant No.3 is financed by
Defendant No.1. It is further submitted by Defendants that the
Plaintiff has failed to allege that in what manner Defendant No.3 is
being financed by Defendant No.1. The Defendants have not denied
that they are being managed by defendant No.2 (NDDB). The
Plaintiff has submitted that defendant No.3/3A was financed by the
Union of India but has failed to place on record even a single
document in order to buttress the submission.
The Ld. Counsel for the Plaintiff has argued that
defendant's evidence i.e. DW1 in his cross examination has
admitted that Ministry of Agriculture was the controlling Authority
of the Institution at the relevant time and now it is company
registered under Company's Act. The question is whether Ministry
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
of Agriculture was having deep and Pervasive control. The Ld.
Counsel for the Plaintiff/Respondent has further argued that the
perusal of the letter heads of the defendant No.3, it clearly reveals
that 'A Government of India Dairy Managed by the National Dairy
Development Board.'
The Ld. Counsel for the Appellant/defendant No.3A has
relied upon the following portion of the Judgment of Pradeep Kumar
Biswas Versus Indian Institute of Chemical Biology and Ors (supra)
passed by the seven Judge Bench of Hon'ble Supreme Court:
"..... The question in each case would be
whether in the light of the cumulative facts as
established, the body is financially, functionally
and administratively dominated by or under the
Control of the Government. Such control must be
particular to the body in question and must be
pervasive. If this is found then the body is a
State within Article 12. On the other hand, when
the control is merely regulatory whether under
statute or otherwise, it would not serve to make
the body a State...."
The Ld. Counsel for defendant No.3A/Appellant has also
relied upon the following portion of Judgment passed by the
Hon'ble Supreme Court in S.L. Aggarwal V. General Manager,
Hindustan Steel Ltd. , AIR 1970 SC 1150:
"....The question thus is whether the servant
employed here can be said to have held the post
under Union or a State? The appellant contends
that since Hindustan Steel Limited is entirely
financed by the Government and its
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
management is directly the responsibility of the
President, the post is virtually under the
Government of India....."
"...In these circumstances, the appellant, who
was an employee of Hindustan Steel Limited,
does not answer the description of a holder of "a
civil post under the Union' as stated in the
article. The appellant was not entitled to the
protection of Art. 311. The High Court was
therefore right in not affording him the
protection...."
The Defendant No3 although appears to be under the
control of Ministry of Agriculture at the relevant time but the said
Control does not appear to be deep and pervasive. The defendants
have categorically denied that they got the finance from Union of
India but the Plaintiff has not been able to place anything on the
record to substantiate that Ministry of Agriculture is the regulatory
authority or having the deep and pervasive control. Although, the
onus of the issue was cast upon the defendants but it is the
plaintiff who have alleged that defendant No.3 was financed by
Union of India which fact was clearly denied by defendant No.3/3A.
The entire Judgments referred above pertains the
position in reference to Article 12 of the Constitution of India which
not only speaks about the Central Government or State
Government but also the local bodies/instrumentalities of the
State. Moreover, the definition of State under Article 12 of the
Constitution of India is confined to violation of any fundamental
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
rights as enshrined in Part III of the Constitution of India. The
definition of State under Article 12 of the Constitution of India
cannot be extended while interpreting the Civil Post of State and
Central Government under Article 311 of the Constitution of India
in terms of the aforesaid Judgment of the Hon'ble Apex Court as
relied upon by Defendant No.3A/Appellant. However, no
convincing/ cogent material has been placed on record by the
Plaintiff/Respondent that the Central Government/Government of
India was having deep & pervasive control on defendant whether
financially, functionally and/or administratively. The Seven Bench
of the Hon'ble Supreme Court has categorically held that when the
control is merely regulatory whether under statute or otherwise, it
would not serve to make the body a State.
In my considered view, the defendant No.3/3A/
Appellant was/is not instrumentality of Central Government and
their employee are not entitled to benefit of the provisions of Article
311 of The Constitution of India.
Now, I will consider issues No.1 and 4 and their findings
passed by the Ld. Trial Court.
WHETHER THE ORDER OF THE TRIAL COURT ALLOWING THE
APPLICATION OF AMENDMENT OF THE PLAINTIFF IS
CHALLENGEABLE AT THIS STAGE
ARGUMENTS OF THE APPELLANT/DEFENDANT NO.3A
The amended plaint of the respondent / plaintiff is
highly delayed and barred by laches and limitation. It is also
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malafide and afterthought. The respondent/ plaintiff after about 25
years challenged his termination. It is submitted that the fact of
termination dated 1.10.1986 was duly disclosed at page 38 (para
27) i.e. in the written statement filed by the appellant/ defendant as
back as on 10.11.1986. On page 38 (para 27) of the written
statement it was duly contended that the suit has become
infructuous and that the services of the respondent /plaintiff have
been terminated vide order dated 1.10.1986. The respondent/
plaintiff in its rejoinder at page 46 did not even respond to the said
para of the written statement appropriately. This itself clearly shows
the malafide of the respondent. Thereafter, after about 25 years i.e.
on 16.11.2011 the respondent/plaintiff sought amendment of
plaint, adding para of termination, though he was well aware of it
earlier. The amendment was allowed vide order dated 25.11.2011. It
is submitted that the amendment beyond a time is time barred and
cannot be entertained. In this regard the defendant
No.3A/Appellant has relied upon the following Judgments:
I. Rajkumar Gurawara (Dead) Thr. Lrs. vs. M/s S.K
Sarwagi and Co. Ltd, SLP(c) No. 21014/2004
(Supreme Court) ;
II. Shiv Gopal Sah vs. Sita Ram Saraungi; (2007) 14
SCC 120 (Supreme Court);
III. Harinarayan G. Bajaj and Anr. vs Vijay Agarwal and
Others, CHS No. 106/10 (Bombay High Court);
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
IV. Shriram Bharatiya Kala Kendra Vs. Shubha Mudgal,
CS(OS) No. 202/2004 (Delhi High Court).
ARGUMENTS OF THE RESPONDENT/PLAINTIFF
The Ld. Counsel for the Plaintiff/Respondent has argued
that application filed by the Plaintiff under Order VI Rule 17 read
with Section 151 C.P.C. for amendment of the Plaint was allowed by
the learned Trial Court vide Order dated 25112011. The order
dated 25.11.2011 was passed by the learned Trial Court after
hearing the parties and after considering all the pros and cons and
all the aspects of the matter as well as provisions of law concerning
amendment of pleadings. Therefore, no fault can be found in the
same at the stage of present Appeal. The Ld. Counsel for the
Respondent/Plaintiff has relied upon the following Judgments:
(1) Pankaja & Yllappa and others: substantial delay relief
sought barred by limitation can be allowed, in appropriate
cases, if that subserves cause of justice and avoids further
litigation Paras No.12, 13, 14.
(2) Sampath Kumar Vs. Ayya and Others. The question of late
seeking amendment to curb multiplicity amendment
allowed. Paras 7 and 11 to 13.
(3) AIR 1994 NOC 191 (MP) : Amendment allowed on cost
which is accepted by the party and is now stopped from
challenging the same as after accepting the cost the orders
of amendment are accepted.
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
(4) The Metal Press Works Ltd., Calcutta Vs. Guntur
Merchants Cotton Press Co. Ltd., AIR 1976 AP 2005:
Principles of approbate and reprobate applied. Conditional
order granting amendment must be regarded as whole and
plaintiff who accepts either directly or indirectly through
his counsel costs awarded in a conditional order is
precluded or barred from attacking the validity of the
portion of the order with which aggrieved.
(5) Dr. Sewak Pd. Vs. Gram Panchayat, AIR 1972 P& H 272
Paras No.1 to 11.
FINDINGS AND CONCLUSIONS
It is apposite to reproduce the Order dated 25112011
passed by the Ld. Trial Court in reference to Amendment
Application:
"S.648/95
25.11.11
Present. Cl. For parties
An Application u/o 6 Rule 17 CPC is pending
whereby the plaintiff has sought amendment of
the plaint at the fag end when the case was
fixed for final arguments and the same has
been opposed by the defendants. Reply has
been filed by the defendants. The plaintiff has
submitted that he wants to add a paragraph by
challenging the order dated 1.10.1986 vide
which the services of the plaintiff were
terminated during the pendency of the suit and
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which escaped the notice of the plaintiff as it
should have been pleaded in the plaint. The Cl.
for the defendant has submitted that it will
prolong the litigation further and amendment
should not be allowed. Plaintiff has replied to
this argument by saying that the document
has already been exhibited and only one
issue will arise but no evidence is required to
be led on the same as the evidence already
led can be read for the said issue. Even
otherwise this fact has already come in the
written statement of the Defendant and the
same can be read in pleadings and the
amendment sought in these circumstances is
already part of the pleadings. Hence in these
circumstances I hereby allow amendment
subject to cost of Rs.2000/ on plaintiff
payable to the defendants, cost paid which is
duly received. Amended plaint is already on
record. Adjourned for filing of amended WS on
29.11.11.
Sd/
Ajay Goel
SCJcumRC (Central), Delhi 25.11.11."
The Judgments relied upon by the Ld. Counsel for the
Appellant/Defendant No.3A is not all applicable to the facts of the
case and the Judgments relied upon by the Ld. Counsel for the
Plaintiff/Respondent clearly supports the arguments of the
Plaintiff/Respondent. The Ld. Counsel for the defendants had even
accepted the Cost. The said order was not challenged and on the
contrary the defendants had also filed the amended written
statement. The said order was accepted by the defendants and now
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
by way of present appeal they cannot challenge the said order more
so when the cost has been accepted and in view thereof the
defendants has accepted the said order. The arguments of the
Appellant/defendant No.3A sans merit on this score and the same
are hereby rejected.
WHETHER THE CIVIL COURT CAN GRANT THE RELIEF AS
PRAYED BY THE PLAINTIFF
ARGUMENTS OF THE APPELLANT/DEFENDANT NO.3A
The Appellant/ defendant No.3A has attacked the
findings of the Ld. Trial Court on legal points as well as on the
facts. The Ld. Counsel for Appellant/ Defendant No.3A argued that
Civil Court does not have power to grant reinstatement and the
reliefs claimed. The Specific Performance of the Contract cannot be
enforced in a Civil Court. In this regard the Ld. Counsel for the
Appellant has relied upon the following Judgments:
(1) The relevant portion of Paras No.7 and 8 of the Judgment
of Maharashtra State C.H.F.C.L. Vs. Prabhakar
Sitaram Bhadange 2017(4) SCALE 158 (Supreme Court)
is reproduced under:
"7......These observations are made on the
premise that even if it is accepted that the
Cooperative Court established under the Act is a
substitute of a Civil Court, the jurisdiction of the
Civil Court to grant relief would not go beyond
the jurisdiction which has been vested in the
Civil Court. When admittedly the Civil Court does
not have jurisdiction to grant any such relief and
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its jurisdiction is barred in view of the law laid
down by in the aforesaid judgment, as a
fortiorari, the jurisdiction of the Cooperative
Court shall also stand barred. We may also
clarify one more aspect. Contract of personal
services is not enforceable under the common
law. Section 14, read with Section 41(e) of the
Specific Relief Act, 1963, specifically bars the
enforcement of such a contract. It is for this
reason the principle of law which is well
established is that the Civil Court does not have
jurisdiction to grant relief of reinstatement as
giving of such relief would amount to enforcing
the contract of personal services. However, as
laid down in the cases referred to above, and
also in Executive Committee of Vaish Degree
College, Shamli & Ors. Vs. Laxmi Narain & Ors.,
there are three exceptions to the aforesaid rule
where the Contract of personal services can be
enforced:
(a) in the case of public servant who has been
dismissed for service in contravention of
Article 311 of the Constitution of India.
(b) in the case of an employee who could be
reinstated when it has acted in breach of the
mandatory obligations imposed by statute.
(c) In the case of a statutory body, its employee
could be reinstated when it has acted in
breach of the mandatory obligations imposed
by statute.
"8. Even when the employees falling under any
of the aforesaid three categories raise dispute
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
qua their termination, the Civil Court is not
empowered to grant reinstatement and the
remedy would be, if the first two categories, by
way of writ petition under Article 226 of the
Constitution or the Administrative Tribunal Act,
as the case may be, and in the third category, it
would be under the Industrial Disputes Act. An
employee who does not fall in any of the
aforesaid exceptions cannot claim reinstatement.
His only remedy is to file a suit in the Civil Court
seeking declaration that termination was
wrongful and claim damages for such wrongful
termination of services. Admittedly, the appellant
Corporation is not a 'State' under Article 12 of
the Constitution. The respondent also cannot be
treated as Government/public servant as he was
not under the employment of any Government.
He was also not 'workman' under the Industrial
Disputes Act as he was working as Manager
with appellant Corporation.
(2) The relevant portion of Para No.3 of the Judgment of
Jitendra Nath Biswas Vs. Empire of India & Ceylone
Tea Co., 1989 (3) SCC 582 (Supreme Court) :
"3........It is clear that wherever the jurisdiction
of the civil Court is expressly or impliedly barred,
the civil court have not jurisdiction. It could not
be disputed that a contract of employment of
personal service could not be specifically
enforced and it is also clear that except the
industrial law, under the law of contract and the
civil law, an employee whose services are
terminated could not seek the relief of
reinstatement or back wages....."
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
(3) The relevant portion of Para No.10 of the Judgment of
Apollo Tyres Ltd. Vs. C.P. Sabastian (2009) 14 SCC 360
(Supreme Court):
"10. In our opinion, the reliefs claimed by the
Plaintiff were clearly seeking enforcement of
contract of personal service and the civil court
has no jurisdiction to grant such reliefs as held
by this Court in Pearlite Liners (P) Ltd. V.
Manorama Sirsi....."
(4) The relevant portion of Paras No.5 and 11 of the Judgment
of Nand Ganj Sihori Sugar Co. Ltd Rae Bareli and Anr.
Vs. Badri Nath and Ors. AIR 1991 SC 1525 :
"5...The Courts never dreamt of enforcing
agreements strictly personal in their nature,
whether they are agreements of hiring and
service, being the common relation of master and
servant..."
"11. On the facts of this case, the High Court
was clearly wrong in issuing a mandatory
injunction to appoint the plaintiff. Even if there
was a contract in terms of which the plaintiff
was entitled to seek relief, the only relief which
was available in law was damages and not
specific performance. Breach of contract must
ordinarily sound in damages, and particularly so
in the case of personal contracts....."
ARGUMENTS OF THE PLAINTIFF/RESPONDENT
In the instant case, question of allowing performance of
Contract did not arise, as no Contract of Service is involved. The
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
Defendant/Appellant is out and out a State and/or Government
Body and the Plaintiff/Respondent is Public Servant. This
argument has no legs to stand. The allegations are baseless and
rather based on mere conjectures and surmises having nothing to
do with reality. As a matter of fact, the Defendant/Appellant
has been blowing hot and cold in the same breath without
any cogent and plausible reasons. This Ground of Appeal
relating to performance of contract also falls to the ground
and is not tenable in the eyes of law;
FINDINGS AND CONCLUSIONS
In the judgment of the Maharashtra State Vs.
Prabhakar Sitaram Bhadange 2017(4) SCALE 158 (supra) relied
upon by the Ld. Counsel for the Appellant/defendant No.3A, it has
categorically been held that the jurisdiction of the Civil Court to
grant relief would not go beyond the jurisdiction which has been
vested in the Civil Court. In terms of the aforesaid Judgment, the
relief of reinstatement with back wages in the case of employees
holding the public post can only be granted either by the
Administrative Tribunal or Hon'ble High Court under Article 226 of
the Constitution and the Civil Court is not empowered to grant
reinstatement. The employees holding Public Post may file a suit
seeking declaration that termination was wrongful and claim
damages for such wrongful termination of services. It has also been
held by the said judgment that contract of personal service cannot
be enforced for any category of employees by the civil court in terms
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
of Section 14 read with Section 41 (e) of Specific Relief Act, 1963.
The said provisions under the Specific Relief Act bars enforcement
of such a contract. The Ld. Counsel for the Respondent/Appellant
was not able to counter arguments of Appellant/defendant No.3A
with any authentic case law.
The suit of the Plaintiff cannot sustain/ maintainable
before the Civil Court in view of the aforesaid ratio of the Hon'ble
Supreme Court. However, this Court also considers the merits of
the case.
INTERPRETATION OF CLAUSE NO.1 AND 2 OF APPOINTMENT
LETTER
ARGUMENTS OF THE RESPONDENT/APPELLANT
The impugned Judgment and Decree dated 5122011
passed by the learned Trial Court is wellreasoned, quite
considerate, judicious, tenacious and legally tenable and are
according to the wellestablished law, judicial procedure and
practice and do not warrant even remotest interference by this
Hon'ble Appellate Court; excepting that the following observations
of the learned Trial Court while deciding issue No.1 and 4 (at page
7 of the impugned Judgment dated 5122011) are not correct:
"As far as another argument that one month
notice should have been given is concerned
the same is duly explained vide Ex.PW1/4
wherein though in the first clause one
month notice was written to be mandatory
but in the second clause it was made clear
that it would not be applicable during the
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period of probation and the services during the
period of probation could be terminated
without any notice and both the clauses have
to be read jointly and not distinctively hence this
plea of the plaintiff is not tenable."
That Clause 1 is bilateral and equitable in nature and
scope. This Clause is mandatory for both the Employer and the
Employee. If the Employer wants to terminate the services of the
Employee, one month's notice or payment of one month's salary in
lieu of notice is mandatory. Similarly, if the Employee wants to
leave the service of the Employer, he has to give one month's notice
or pay one mo0nth's salary in lieu of notice. Nature and scope of
"Notice" mentioned in Clause 2 is altogether different. This Notice
actually means showcause notice, forming part of principles of
natural equity and fairplay. This showcause is waived if the
services are terminated during the period of probation without any
notice and without assigning any reasons. For that aspect of the
matter, after confirmation of the employee, he would be absorbed
against permanent job. However, in the present case, the position
is different. Firstly, question of placing the Plaintiff/Respondent on
probation initially for a period of six months and/or his
confirmation as Personnel Officer, who is appointed purely on
temporary basis does not arise. Secondly, assuming without
admitting and that too for argument sake only, that such a
contingency does arise and the Plaintiff /Respondent is confirmed
as Personnel Officer, even then, after confirmation, the
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Plaintiff/Respondent would have continued as Personnel Officer on
temporary basis. Obviously, therefore, in any case, giving one
month's notice or paying one month salary in lieu of notice
remained mandatory. Evidently, neither one month notice was
given nor one month salary in lieu of notice was paid to the Plain
tiff/Respondent before the alleged termination of his services. This
was a serious and incurable lapse on the part of the
Defendant/Appellant; Hence the alleged termination of service of
the Plaintiff/Respondent without giving one month notice or paying
one month's salary in lieu of notice was bad in law on this count as
well as noncompliance of Clause 1 of the said appointment letter
before the alleged termination of service of the Plaintiff/Respondent
by the Defendant/Appellant; Therefore, keeping in view the facts
and circumstances of the present case, Clause No.2 is not only
infructuous but also redundant visàvis Clause No.1 of the said
appointment letter dated 941986 (Ex.PW1/4).
FINDINGS AND CONCLUSIONS
The appointment letter is an admitted document i.e.
Exhibit PW1/4. The relevant clauses of the appointment letter
issued by defendant No.3 (defendant No.3A) to respondent/plaintiff
are reproduced as follows:
1. Your appointment is made on a purely temporary
basis. This appointment is terminable by either
side at one month's notice in writing or on
payment or recovery of one month's salary in
lieu thereof.
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2. You will be on probation initially for a period of
six months from the date of your joining this
Dairy. The period of probation can be extended
further at the sole discretion of the Management.
During the period of probation your services can
be terminated without any notice and without
assigning any reason."
As per clause No.1, the Plaintiff was appointed on purely
temporary basis. This appointment is terminable by either side at
one month's notice in writing or on payment or recovery of one
month's salary in lieu thereof. In view clause no.2, the Plaintiff was
on probation initially for a period of six months from the date of
joining. The period can be extended further at the sole discretion of
the Management. During the period of probation, services can be
terminated without any notice and without assigning any reason.
The Ld. Trial Court has upheld the version of the defendants that
principles of Estoppel would apply in the present case as well as the
Plaintiff is Temporary Employee and there is no requirement of
giving one month's Notice and in my considered opinion there is no
infirmity in the said findings. The observations/conclusions drawn
by the Ld. Trial Court is reproduced as under:
".....As far as the averments regarding the post
to be given are concerned the same is barred by
the plea of estoppel since the plaintiff with his
open eyes had accepted the proposal hence now
it does not lie in his mouth to contend that he
was given the post of Personnel Officer instead
of Assistant Manager (Personnel) and (Admn.).
He might have applied for the post of Assistant
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Manager (Personnel and Admn.) but he was
found eligible/selected for the post of Personnel
Officer hence to say otherwise is not acceptable
to the court and the plaintiff has failed to prove
the case qua this relief. As far as another
arguments that one month notice should have
been given is concerned the same is duly
explained vide Ex.PW1/4 wherein though in the
first clause one month notice was written to be
mandatory but in the second clause it was made
clear that it would not be applicable during the
period of probation and the services during
probation could be terminated without any notice
and both the clauses have to be read jointly and
not distinctively, hence the plea of the plaintiff is
not tenable...."
WHETHER TERMINATION LETTER DATED 01.10.1986 IS
STIGMATIC OR PUNITIVE OR THE PLAINTIFF WAS
VICTIMIZED.
The Ld. Trial Court has granted the following relief to
the Plaintiff/ Respondent:
"....10. Relief: In view of the above observations
on Issue No.1, suit is partly decreed in favour of
the plaintiff and against the defendants and
letter of termination dated 1.10.1986 is declared
a tainted, malafide, bad in law and abinitio and
plaintiff is held to be continuing in service as
Personnel Officer without any break alongwith
consequential benefits of continuation of
service....
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The basis of granting the aforesaid relief by the Ld. Trial
Court is reproduced herein for the apt understanding:
"........Now I am coming to the last plea that
principles of natural justice have been violated.
For this though Cl. for defendant has put
reliance upon the judgments of Ld. Superior
courts to the effect that probationer need not to
be given any hearing and his services can be
terminated at any time without assigning any
reason but on the other hand Cl. for Plaintiff
though accepted this version but placed reliance
upon 2010 X AD (SC) 376 Union of India & Ors.
Vs. Mahaveer C. Singhvi and 1980(17) DLT page
544 UOI Vs. B.C.Gupta wherein the observations
of Hon'ble Supreme Court after taking notice of
the relevant factors had been that normally the
termination of probationer does not require any
reasons and he can be shunted out from the
service during the probation period similicitor
without any reason but facts and circumstances
should be seen by the court as to whether there
is something at the back of the mind of authority
passing order and whole process is punitive or
biased or is causing stigma on plaintiff and if it
is found so then Article 311 of Constitution is
attracted. It has to be seen as if it was so in the
present case. The Plaintiff has approached the
court with the pleadings that he was interviewed
and recruited for the other post than asked for.
He has also stated his position in the merit list.
In para No.21 it was clearly stated that even he
was asked even to leave the post of Personnel
Officer as some other friend of the officials of the
department was to be promoted at his place.
These facts have been simply denied but back
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drop is clear. Rather, it has come in the
pleadings that he intended to approach the court
for redressal of his grievances and accordingly
he filed suit on 29.9.86 and notice of the same
was issued to the defendants for 3.10.86 which
was served on 01.10.86 on some of the
defendants. But before appearing in the court on
3.10.86 abruptly services of the plaintiff were
terminated vide order dated 01.10.86 and even
fact of termination of plaintiff was not disclosed
to the court on 3.10.86 when court ordered for
status quo. Thus the termination order seems to
be antedated and moreover Ex. DW1 clearly
shows that all the wordings were typed and only
date was mentioned in handwriting. The date of
service of this letter is not proved. No register
has been produced showing the relevant entry of
posting rather the plaintiff submitted that this
letter was never received in dak and Ex. PX was
received the same. The General Manager has not
put date below the signatures and thus it cannot
be stated that the termination order was not
biased and was not passed in haste and there is
no hanky panky. In these circumstances in view
of the judgment relied upon supra by the
plaintiff, he has been able to prove that his
termination order was bad and he should have
been afforded opportunity in these
circumstances....."
ARGUMENTS OF DEFENDANT NO.3A/APPELLANT
The respondent/plaintiff was terminated while he was
on probation basis. He had merely worked for a short span of 6
months. The respondent/plaintiff was temporary employee. It is
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
well settled that when an employee is on probation basis or that he
is a temporary employee, he can be terminated without assigning
any reason and the courts should not interfere with the same. In
the present case employee was both. i.e. temporary as well as on
probation. It has been held in the judgments that temporary
employees, probation employees have no right to hearing before
their services are dispensed with as the termination does not
forfeiture any legal right. It has been consistently held that in
such cases even principles of natural justice are not required to be
observed. It has been held that Court must seek adherence to the
terms of appointment and there is no reason why the terms and
conditions incorporated in the appointment letter cannot be
enforced in a contract of service. The termination in the present
case was a termination simpliciter i.e. simple termination and was
not at all punitive, no stigma was caused. According to the
judgments in such cases the employer has a right to terminate
without assigning any reason. The Ld. Counsel for the
Appellant/defendant No.3A has relied upon the following
Judgments in order to demonstrate the principles of Temporary and
Probationer Employee:
(1) The relevant portion of Para No. 11 of the Judgment of Ravin
dra Kumar Misra vs U.P. State Handloom Corpn. Ltd. and
Another 1987 (Supp.) SCC 739 (Supreme Court) is repro
duced hereinbelow:
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"11... Keeping in view of the principles indicated
above, it is difficult to accept the claim of the ap
pellant. He was a temporary servant and had no
right to the post. It has also not been denied that
both under the contract of service as also the
Service Rules governing him the employer had
the right to terminate his services by giving him
one month's notice. The order to which exception
is taken is expressly an order of termination in
innocuous terms and does not cast any stigma
on the appellant nor does it visit him with any
evil consequences. It is also not founded on mis
conduct. In the circumstances, the order is not
open to challenge...."
(2) The relevant portion of Paras No. 2, 5, 7, part of para 8 and
part of para 10 of the Judgment of State of Uttar Pradesh
and Another vs. Kaushal Kishore Shukla 1991 (1) SCC
691, (Supreme Court, Three Judges Bench):
"(2) A temporary government servant has no
right to hold the post. Whenever, the competent
authority is satisfied that the work and conduct
of a temporary servant is not satisfactory or that
his continuance in service is not in public interest
on account of his unsuitability, misconduct or in
efficiency, it may either terminate his services in
accordance with the terms and conditions of the
service or the relevant rules or it may decide to
take punitive action against the temporary gov
ernment servant. If the services of a temporary
government servant is terminated in accordance
with the terms and conditions of the service, it
will not visit him with any evil consequences. If
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on perusal of the character roll entries or on the
basis of preliminary inquiry on the allegations
made against an employee, the competent au
thority is satisfied that the employee is not suit
able for the service whereupon the services of
the temporary employee are terminated, no ex
ception can be taken to such an order of termina
tion......"
"......The respondent being a temporary govern
ment servant had no right to hold the post, and
the competent authority terminated his services
by an innocuous order of termination without
casting any stigma on him. The termination or
der does not indict the respondent for any mis
conduct. The inquiry which was held against the
respondent was preliminary in nature to ascer
tain the respondent's suitability and continuance
in service......."
(3) The relevant portion of part of para No. 2 and para no.23 of
the Judgment of State of U.P vs. Ramchandra Trivedi AIR
1976 SC 2547 (Supreme Court, Three Judges Bench):
"......No. E70/IV/259 Dated Jhansi, November
29, 1961
OFFICE MEMORANDUM
Shri Ram Chandra Trivedi, Temporary Routine
Grade Clerk is hereby served with one month's
notice to the effect that his services shall not be
required after one month from the date of receipt
of this Notice.
Sd/ S.P. Sahni
Superintending Engineer."
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"23. Keeping in view the principles extracted
above, the respondent's suit could not be de
creed in his favour. He was a temporary hand
and had no right to the post. It is also not de
nied that both under the contract of service and
the service rules governing the respondent, the
State had a right to terminate his services by giv
ing him one month's notice. The order to which
exception is taken is exfacie an order of termina
tion of service simpliciter. It does not cast any
stigma on the respondent nor does it visit him
with evil consequences, nor is it founded on mis
conduct. In the circumstances, the respondent
could not invite the Court to go into the motive
behind the order and claim the protection of Arti
cle 311(2) of the Constitution."
(4) The relevant portion of part of para No. 29 and para no.30 of
the Judgment of Pavendra Narayan Verma vs. Sanjay
Gandhi PGI of Medical Sciences & Anr. (2002) 1 SCC 520
(Supreme Court):
"Although strictly speaking, the stigma is implicit
in the termination, a simple termination is not
stigmatic. A termination order which explicitly
states what is implicit in every order of termina
tion of a probationer's appointment, is also not
stigmatic. The decisions cited by the parties and
noted by us earlier, also do not hold so. In order
to amount to a stigma, the order must be in a
language which imputes something over and
above mere unsuitability for the job."
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"30. As was noted in Dipti Prakash Banerjee V.
Satyendra Nath Bose National Centre for Basic
Sciences12: (SCC p. 73, para 28)
"28. At the outset, we may state that in several
cases and in particular in State of Orissa v. Ram
Narayan Das14 it has been held that use of the
word 'unsatisfactory work and conduct' in the
termination order will not amount to a stigma."
(5) The relevant portion of part of paras No. 7 and part of para
no.9 of the Judgment of Governing Council of Kidwai
Memorial Institute of Oncology vs. Dr. Pandurang God
walkar and Anr.; AIR 1993 SC 392 (Supreme Court):
"7. When an appointment I made on probation, it
presupposes that the conduct, performance, abil
ity and the capacity of the employee concerned
have to be watched and examined during the pe
riod of probation. He is to be confirmed after the
expiry of probation only when his service during
the period of probation is found to be satisfactory
and he is considered suitable for the post
against which he has been appointed........"
"9........In that case the service of the appellant
had been terminated during the period of proba
tion. On the materials on record it was held by
this Court that the order of termination really
amounted to punishment because the real foun
dation of the action against the appellant was
the act of misconduct on June 22, 1981. The
aforesaid judgment is of no help to the respon
dent because in that case a clear finding was
recorded by this Court that the service of the ap
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
pellant had been terminated because of a partic
ular misconduct alleged against him which had
never been enquired into. So far the facts of the
present case are concerned, the Governing Coun
cil examined the different report in respect of the
respondent during the period of probation and
considered the question as to whether he should
be allowed to continue in the service of the Insti
tute. The decision appears to have been taken
by the Governing Council on the total and overall
assessment of the performance of the respon
dent, in terms of the condition of the appointment
and Rule 4 aforesaid."
(6) The relevant portion of part of para No. 7 of the Judgment of
Birla VXL Ltd. vs. State of Punjab and Others; AIR 1999
SC 561 (Supreme Court):
"7. ....... Having regard to the clear terms of his
appointment order, which he accepted by signing
at the foot thereof the appellant was entitled to
bring his employment to an end at the conclusion
of the period of temporary employment. The letter
stating that the third respondent's services
would come to an end on 31 st December, 1984
did not say that the services were being termi
nated because of any misconduct. There was no
stigma whatever cast by that letter. The High
Court was not, in the circumstances, warranted
in concluding that the services had been termi
nated because of the third respondent's miscon
duct and upholding his reinstatement with full
backwages."
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(7) The relevant portion of part of para No. 4 of the Judgment of
Unit Trust of India & Ors. vs. T. Bijaya Kumar & Anr.;
1993 (i) LLJ 240 (Supreme Court, Three Judges Bench):
"In the State of Orissa v. Ram Narayan Das
19611LLJ552 this Court held that the services
of a probationer can be terminated in accordance
with the rules because a probationer has no right
to the post held by him. The very purpose of
placing a person on probation is to try him dur
ing the probation period to assess his suitability
for the job in question. It is settled law that an
order of discharge is not an order of punishment
and, therefore, there was no question of giving a
hearing before termination of service. The deci
sions reported in Madan Mohan Prasad v. State
of Bihar & Ors. 1973ILLJ411, Shamsher Singh
& Anr. v. State of Punjab1974IILLJ465 and
Anoop Jaiswal v. Govt. of India & Anr. 1984I
LLJ337 do not take any different view. The deci
sion in Ajit Singh & Ors. v. State of Punjab 1983
ILLJ 410 has no relevance or application to the
facts of the present case. The facts here are sim
ple, namely during the probation period the per
formance of the first respondent was watched
and was not found to be satisfactory, despite he
having been given an opportunity to show im
provement. Hence the Management was con
strained to put an end to his service by an order
of discharge simplicitor. We are, therefore, of the
view that the Management had acted within the
framework of the rules and law and its decision
ought not to have been upset by the High Court."
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
(8) The relevant portion of para No. 17, part of para no. 18, part
of para no. 20, paras no. 22, 23, part of para no. 25, part of
para no. 27, para no. 28 of the Judgment of District and
Sessions Judge Vs. Ratnesh Kumar Srivastava (Alla
habad High Court Division Bench) 2005 (1) ESC 724:
"17. Admittedly, an employee appointed on tem
porary basis, is not government by any service
Rules and he is bound by the terms and condi
tions incorporated in the appointment letter. It is
a settled legal proposition that a person, who
has been appointment on ad hoc basis with the
conditions stipulated in his appointment letter
that his services can be terminated at any time
without notice, does not have a right to claim any
relief, if his services are terminated in terms
thereof."
"18. ......Under the service jurisprudence a tem
porary employee has no right to hold the post
and his services are liable to be terminated in ac
cordance with the relevant service rules and the
terms of contract of service."
"20. A temporary employee has no right to hold
the post and his services are liable to be termi
nated without assigning any reason either under
the terms of the contract providing for such termi
nation or under the relevant statutory rules regu
lating the terms and conditions of temporary ser
vants. ....."
"22. In Life Insurance Corporation of India v.
Raghavenera Seshagiri Rao Kulkarni, (1997) 8
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
SCC 461, the Apex Court explained the differ
ence of a permanent employee and an employee
holding the post on probation and held that the
services of a probationer cannot be equated with
that of a permanent employee who, on account of
his status, is entitled to be retained in service
and his services cannot be terminated abruptly
without any notice or plausible cause. "This is
based on the principle that a substantive ap
pointment to a permanent post in a public service
confers substantive right to the post and the per
son appointed on that post becomes entitled to
have lien on the post." However,
interpreting/enforcing the terms of appointment,
which provided for discharge of the said proba
tioner from service at any time during the period
or probation or extended period of probation,
without any notice or without assigning any rea
son, the Court held that as his termination was
in consonance with the terms and conditions of
his appointment letter, he cannot be heard rais
ing the said grievance."
"23. In State of Punjab and Ors. v. Surindra Ku
mar and Ors., AIR 1992 SC 1593, the Apex
Court has held that the Court must seek the ad
herence to the said terms and conditions of the
appointment and there is no reason why terms
and conditions incorporated in the appointment
letter cannot be enforced in a contract of service."
"25. .....In Nazira Begum Lashkar and Ors. v.
State of Assam, AIR 2001 C 102, the Apex Court
held that where appointment neither confers any
right nor any equity in favour of the employee, as
the appointment was purely temporary and
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
could be terminated without notice, no grievance
can be entertained by such employee. Moreso,
he cannot claim any equitable relief from any
Court."
27. A temporary or ad hoc appointment does not
confer any legal right. Such an appointee cannot
claim equity in his favour, nor the equitable relief
can be granted to him by the Court even if he
had worked for an unusual long period, on hu
manitarian considerations. A person holding a
temporary/ad hoc post is not a member of ser
vice in accordance with the statutory Rules and,
therefore, cannot have any vested right in the
post........"
"28. Therefore,the law on the issue can be sum
marised that an ad hoc appointment means a
stopgap arrangement. The appointment is de
feasible, and thus, incapable of creating any le
gal right in favour of the appointee for the reason
that such an appointment is made in public inter
est considering the administrative necessity,
temporarily, or to meet a temporary necessity for
a specific purpose. An ad hoc appointee cannot
have any grievance whatsoever as he is not de
prived of any right or vested interest in the post.
He cannot claim to be a member of the service in
accordance with the rules. The only protection
law gives an ad hoc appointee is not to be re
placed by another ad hoc appointee. Thus,he
has to make room for a regular appointee when
ever he comes to join."
(9) The relevant portion of part of para No. 10 of the Judgment of
Management of Bharat Kala Kendra Pvt. Ltd. Vs.
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
R.K.Baweja and Anr. 1981 LAB. IC 893 (Delhi High Court
Division Bench):
"10. We are of the opinion that the finding of the
Labour Court that there was victimisation in the
present case is not based on any material. The
principles in this regard are well settled. Victimisa
tion is a serious charge by an employee against an
employer and must be properly and adequately
pleaded giving all particulars upon which the
charge is based to enable the employer to fully meet
them. The onus of establishing a plea of victimisa
tion will be upon the person pleading it. .......
Mere allegations, vague suggestions and insinua
tions are not enough to establish a plea of victimisa
tion (see Bharat Iron Works v. Baggu Bai, AIR 1976
SC 98 : (1976 La IC 4)). The fact that the relations
between the employer and the employee are not
happy and the workman was an active union mem
ber would by itself be no evidence to prove victimi
sation. ....."
The Ld. Counsel for Appellant No.3A/Appellant has fur
ther argued that according to clauses of the appointment letter, an
employee could have been terminated during the period of proba
tion without assigning any reasons and without any notice. In fact,
Ld. Trial Court has also held in the impugned order in favour of the
appellant/ defendant that the management could have been termi
nated without any notice during the probationary period as per
the clause. Furthermore, the respondent had worked for a very
short span of time i.e. merely for a period of 6 months. In light of
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
the same, no relief should have been granted to the respondent /
plaintiff.
ARGUMENTS OF THE RESPONDENT/APPELLANT
The Defendant/ Appellant believes in daydreaming
and building castles in the air where neither any foundation can be
laid nor any superstructure can be raised and without foundation
and superstructure constructed thereon, no castle can be built. It
is wellsettled law that whenever an Employer wants to terminate
the service of his employees even as a private concern, it has to
follow the principles of natural justice, equity and fairplay.
Observance of principles of natural justice inter alia include giving
reasonable opportunity to the employee concerned to explain his
case. Thus giving a showcause notice is utmost essential before
termination of service in the larger interest of justice, equity and
fairplay. Observance of principles of natural justice is all the more
necessary in the case of Government /Public Servants even though
the service is on temporary basis or might have served for a short
period. Giving of showcause notice is also essential that the
employee concerned could make alternative arrangements for his
livelihood. On the showings of the Defendant/Appellant itself,
evidently, principles of natural justice have not been observed in
the present case before terminating the service of the
Plaintiff/Respondent. Termination of service without giving any
showcause Notice and/or without assigning any reason is always
punitive. And for that aspect of the matter, what can be more
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
punitive than abruptly depriving the Plaintiff/Respondent of his
livelihood and all of a sudden throwing him on the road unawares
and that too without any plausible reason, ground or justification.
The learned Trial Court has got the judicial power and has rightly
exercised this judicial power to see as to whether there was
something fishy in the matter and whether there is colourable,
biased and unfair exercise of its rights by the Management
in terminating the service of the Plaintiff/Respondent; especially in
the case of Govt./Public Servants and whether principles of
natural justice, equity and fair play have been observed or not
even in the case of termination of service during probationary
period, particularly when the service was terminated at the
fag end of the probationary period during which there were no
adverse remarks or adverse entry in the Service Book of the
Plaintiff/Respondent. It is abundantly clear that the alleged
letter of termination dated 1101986 is forged, manipulated and
planted during the course of proceedings of the suit for declaration
and permanent injunction filed by the Plaintiff/Respondent i.e.
when the matter was subjudice. The Defendant/Appellant played
a fraud not only on the Plaintiff/Respondent but also on the
learned Trial Court. Obviously, therefore, the learned Trial Court
has rightly exercised its Judicial authority/power in the right
earnest and has found and accordingly declared that the alleged
letter of termination dated 1101986 was tainted, malafide, bad in
law and abinitio void.
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The findings are quite considerate, reasonable,
judicious, judicially sound, logical and rational and tenable in the
eyes of law and do not warrant any interference by this Hon'ble
Appellate Court even from the remotest angle and/or point of view.
Rather the impugned Judgment/Decree must be upheld in the
larger interest of justice, equity and fairplay with a view to avoiding
any such unfair labour practice and avoidable victimization of the
employees of the Defendant/Appellant in future;
Ld. Counsel for the Respondent/Appellant has relied
upon the following Judgments under various heads:
Vitiated Discharge/ Termination/ Colourable, Arbitrary,
Malafide exercise of official position and power:
1. The relevant portion of paras No.17 to 19, 21, 26 and 32
of the Judgment Sudarshan Rajpoot Vs. Uttar
Pradesh State Road Transport Corporation (2015) 2
SCC 317:
"17. In the absence of the documentary evidence
to justify the plea taken by the RespondentCor
poration that the appellantworkman was a con
tract employee in the order of termination it re
mained as a plea and not a proven fact of asser
tion. Therefore, the appellantworkman is consid
ered to be permanent workman. Further, the ap
pellantworkman has clearly stated in his affi
davit before the High Court that at the time of
termination his juniors were working on perma
nent basis. Therefore, the same is another added
fact to accept the contention of the appellant
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workman by the Labour Court that he was ap
pointed as a permanent workman in the respon
dentCorporation as a driver."
"18. The reference of the industrial dispute to the
Labour Court regarding the justification of the or
der of termination passed against the appellant
workman was made by the State Government in
exercise of its statutory power under the U.P.I.D.
Act. The burden to justify the same lies on the re
spondentCorporation, the same has not been
discharged by producing cogent evidence on
record before the Labour Court. Therefore, the
finding of fact recorded by the Labour Court
while answering the point of dispute referred to
it by placing reliance upon the evidence of the
employerEW1 wherein he admitted that the ap
pellantworkman was appointed on permanent
basis in the post of driver at Azad Nagar Depot
of the respondent Corporation. The finding of
fact was recorded by the Labour Court accepting
the evidence of EW 1 that the appellantwork
man has worked continuously from 11.3.1997 to
29.07.2000 in the respondentCorporation.
Therefore, the Labour Court has rightly come to
conclusion and held that the appellant workman
has rendered more than 240 days continuous
service from the date of his appointment till the
date of passing the termination order."
"19. It is the case of retrenchment as the termi
nation of the appellant from his services is other
wise for misconduct, in view of the admitted fact
mentioned in the order of termination that his
name was struck off from the contract roll.
Merely because the words mentioned as contrac
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
tual driver in the termination order dated
29.7.2000 to strike off his name from the con
tract employees roll does not automatically prove
that he has worked as the driver on contract ba
sis in the respondentCorporation."
"21. In the order of termination, it is alleged that
on account of negligent driving of the bus by ap
pellantworkman the accident of the vehicle hap
pened, the said allegation was neither proved in
the inquiry required to be conducted nor produc
ing evidence before the Labour Court by the re
spondentCorporation. Therefore, the High Court
has failed to examine the above vital aspects of
the case on hand and erroneously interfered
with the award passed by the Labour Court in
exercise of its extraordinary and supervisory ju
risdiction under Articles 226 & 227 of the Consti
tution of India. This exercise of power is contrary
to the law laid down by this Court in the case of
Harjinder Singh v. Punjab State Warehousing
Corporation[4], wherein this Court held thus:
17. Before concluding, we consider it necessary
to observe that while exercising jurisdiction un
der Articles 226 and/or 227 of the Constitution
in matters like the present one, the High Courts
are duty bound to keep in mind that the Indus
trial Disputes Act and other similar legislative in
struments are social welfare legislations and the
same are required to be interpreted keeping in
view the goals set out in the preamble of the
Constitution and the provisions contained in Part
IV thereof in general and Articles 38, 39(a) to (e),
43 and 43A in particular, which mandate that
the State should secure a social order for the pro
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motion of welfare of the people, ensure equality
between men and women and equitable distribu
tion of material resources of the community to
subserve the common good and also ensure that
the workers get their dues. More than 41 years
ago, Gajendragadkar, J, opined:
'10....... the concept of social and economic jus
tice is a living concept of revolutionary import; it
gives sustenance to the rule of law and meaning
and significance to the ideal of welfare State"
State of Mysore v. Workers of Gold Mines AIR
1958 SC 923.
"26. In view of the aforesaid statement of law
laid down by this Court after adverting to the
powers of the Industrial Tribunal and the Labour
Court as interpreted by this Court in the earlier
decisions referred to supra, the said principle is
aptly applicable to the fact situation of the case
on hand, for the reason that the Labour Court
recorded a finding of fact in favour of the work
man that the termination of services of the appel
lant herein is not legal and valid and further
reaffirmed the said finding and also clearly held
that the plea taken in the order of termination
that he was appointed on contract basis as a
driver is not proved by producing cogent evi
dence. Further, we hold that even if the plea of
the employer is accepted, extracting work though
of permanent nature continuously for more than
three years, the alleged employment on contract
basis is wholly impermissible.
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Therefore, we have held that it amounts to an
unfair labour practice as defined under 2(ra) of
the I.D. Act, 1947 read with Sections 25T which
is prohibited under Section 25U, Chapter VC of
the I.D. Act, 1947. We have to hold that the judg
ment of the High Court in reversing the award is
not legal and the same is set aside by us.
32.Further, it is important for us to examine an
other aspect of the case on hand with respect to
reinstatement, backwages and the other conse
quential benefits to be awarded in favour of the
appellantworkman. In the case of Deepali
Gundu Surwase v. Kranti Junior Adhyapak Ma
havidyalaya (D. Ed) and Ors.[12] , after referring
to three Judge Bench Judgments with regard to
the principle to be followed by the Labour
Courts/Industrial Tribunals to award back
wages if order of termination/dismissal is set
aside, law has been laid down in this regard by
this Court as under: (SCC p.334, para 22).
"22. The very idea of restoring an employee to
the position which he held before dismissal or re
moval or termination of service implies that the
employee will be put in the same position in
which he would have been but for the illegal ac
tion taken by the employer. The injury suffered
by a person, who is dismissed or removed or is
otherwise terminated from service cannot easily
be measured in terms of money. With the pass
ing of an order which has the effect of severing
the employer employee relationship, the latter's
source of income gets dried up. Not only the con
cerned employee, but his entire family suffers
grave adversities. They are deprived of the
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Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
source of sustenance. The children are deprived
of nutritious food and all opportunities of educa
tion and advancement in life. At times, the family
has to borrow from the relatives and other ac
quaintance to avoid starvation. These sufferings
continue till the competent adjudicatory forum
decides on the legality of the action taken by the
employer. The reinstatement of such an em
ployee, which is preceded by a finding of the
competent judicial/quasi judicial body or Court
that the action taken by the employer is ultra
vires the relevant statutory provisions or the
principles of natural justice, entitles the em
ployee to claim full back wages. If the employer
wants to deny back wages to the employee or
contest his entitlement to get consequential bene
fits, then it is for him/her to specifically plead
and prove that during the intervening period the
employee was gainfully employed and was get
ting the same emoluments. Denial of back wages
to an employee, who has suffered due to an ille
gal act of the employer would amount to indi
rectly punishing the concerned employee and re
warding the employer by relieving him of the
obligation to pay back wages including the emol
uments."
"Therefore, keeping in mind the principles laid
down by this Court in the above case, we are of
the opinion that the appellantworkman should
be paid full backwages by the respondentCor
poration."
RCA No. 35/2016 Page 62 of 85
Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
2. Relevant portion of paras No.2,4, 6 9 to 11 of the Judg
ment of Risal Singh Vs. State of Haryana. V (2014)
SLT 718:
"2.The broad essential facts which need to be
adumbrated for the decision of the present ap
peal are that the appellant, an Assistant SubIn
spector (Ad hoc SubInspector) serving in the De
partment of Police in the State of Haryana, as al
leged, was involved in a corruption sting opera
tion in a television channel. Because of the said
alleged sting operation, the Superintendent of Po
lice, Mewat at Nuh, vide order dated 19.06.2008,
after referring to the news item in the television
channel, proceeded to pass the following order:
....
"4. Ms. S. Janani, learned counsel for the appel lant has submitted that the power with the em ployer rests to dispense with the inquiry invok ing the constitutional provision, yet appropriate reasons have to be ascribed and in absence of ascription of reasons, the order is vitiated in law and the eventual consequence would be quash ment of the order of dismissal.
"6. We have already reproduced the order passed by the competent authority. On a bare perusal of the same, it is clear as day that it is bereft of reason. Nonascribing of reason while passing an order dispensing with enquiry, which otherwise is a must, definitely invalidates such an action. In this context, reference to the author ity in Union of India and Anr. v. Tulsiram Patel[1] is apposite. In the said case the Constitution RCA No. 35/2016 Page 63 of 85 Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma Bench, while dealing with the exercise of power under Article 311(2)(b)"
"9. Recently, in Reena Rani v. State of Haryana[3], after referring to the various authori ties in the field, the Court ruled that when rea sons are not ascribed, the order is vitiated and accordingly set aside the order of dismissal which had been concurred with by the Single Judge and directed for reinstatement in service with all consequential benefits. It has also been observed therein that the order passed by this Court would not preclude the competent author ity from taking action against the Appellant in accordance with law.
"10. Tested on the touchstone of the aforesaid authorities, the irresistible conclusion is that the order passed by the Superintendent of Police dis pensing with the inquiry is totally unsustainable and is hereby annulled. As the foundation founders, the order of the High Court giving the stamp of approval to the ultimate order without addressing the lis from a proper perspective is also indefensible and resultantly, the order of dismissal passed by the disciplinary authority has to pave the path of extinction.
"11. Consequently, we allow the appeal and set aside the order passed by the High Court and that of the disciplinary authority. The appellant shall be deemed to be in service till the date of superannuation. As he has attained the age of superannuation in the meantime, he shall be en titled to all consequential benefits. The arrears shall be computed and paid to the appellant RCA No. 35/2016 Page 64 of 85 Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma within a period of three months hence. Needless to say, the respondents are not precluded from initiating any disciplinary proceedings, if ad vised in law. As the lis has been pending before the Court, the period that has been spent in Court shall be excluded for the purpose of limita tion for initiating the disciplinary proceedings as per rules. However, we may hasten to clarify that our observations herein should not be con strued as a mandate to the authorities to initiate the proceeding against the appellant. We may further proceed to add that the State Government shall conduct itself as a model employer and act with the objectivity which is expected from it. There shall be no order as to costs..."
3. Head Note 'A' and 'B' of the Judgment of State Bank of India & Ors. Vs. Palak Modi & Anr. with SBI Vs. Minshu Saxena & Anr. (2013) 3 SCC 607: "A. Service Law - Probation/Probationer - Comple tion of probation period - Simpliciter or punitive ter mination - Determination of Test to be applied - Permissibility of holding enquiry/test to adjudge suitability of probationer - Principles reiterated - Held,probationer has no right to hold post and his services can be terminated at any time on grounds of unsuitability - Where competent authority holds enquiry or test or other evaluation method forms ba sis for termination order, even then action of compe tent authority cannot be castigated as punitive - However, where allegation of misconduct (as in present case) constitutes foundation of action taken, then ultimate decision taken by competent authority can be nullified on ground of violation of rules of RCA No. 35/2016 Page 65 of 85 Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma natural justice - Moreover, in such cases, though termination order prima facie is nonstigmatic, court can lift veil and examine whether in garb of termi nation simpliciter, employer had in fact punished employee for misconduct - Such being the case herein, termination of respondents set aside - State Bank of India Officers Service Rules, 1992, Rr. 16(2) & (3).
B. Service Law - Termination of Service - Natural Justice - Compliance with - Stigmatic Dismissal - Dismissal for misconduct alleged (use of unfair means in evaluation/confirmation test) and not dis charge simpliciter - On facts, held, services of pri vate respondents were not terminated on account of any deficiency in their performance during proba tion period or failure to secure qualifying marks in confirmation test - But foundation of termination or der was allegation pertaining to use of unfair means in confirmation examination constituting misconduct - However, no enquiry involving private respondents preceded termination order, and no op portunity of hearing was granted to them i.e. they were condemned unheard - Hence, termination or der unsustainable."
4. Relevant portion of paras No. 14, 15, 17 to 19 of the Judgment of Pradip Kumar Vs. UOI & Ors. (2012) 13 SCC 182: "14. Nonetheless the order of discharge cannot be upheld, as it is stigmatic and punitive in na ture. It is a matter of record that during three years of service no order was issued extending the period of probation of the respondent. He RCA No. 35/2016 Page 66 of 85 Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma completed the mandatory period of probation on 21st November, 2007, therefore, it was expected of the department to take a decision about the performance of the respondent within a reason able period from the expiry of one year. It is also a matter of record that the respondent continued in service without receiving any formal or infor mal notice about the defects in his work or any deficiency in his performance. This Court, in the case of Sumati P. Shere Dr. Vs. Union of India & Ors.[1], emphasised the importance of timely communication of defects and deficiencies in per formance to a probationer, so that he could make the necessary efforts to improve his work. Non communication of his deficiencies in work would render any movement order of such an employee on the ground of unsuitability arbitrary. In Para graph 5 of the judgment, it is observed: (SCC pp.31314) "5. We must emphasise that in the relationship of master and servant there is a moral obligation to act fairly. An informal, if not formal, giveand take, on the assessment of work of the employee should be there. The employee should be made aware of the defect in his work and deficiency in his performance. Defects or deficiencies; indiffer ence or indiscretion may be with the employee by inadvertence and not by incapacity to work. Timely communication of the assessment of work in such cases may put the employee on the right track. Without any such communication, in our opinion, it would be arbitrary to give a movement order to the employee on the ground of unsuit ability."
RCA No. 35/2016 Page 67 of 85Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma In our opinion, the aforesaid observations are fully applicable in the facts and circumstances of this case.
"15. It is also a matter of record that the proce dure for confirmation of the respondent had been initiated on 26112007. It is also not disputed that vigilance report for his confirmation had also been received. Therefore, it is difficult to accept the submission of learned counsel for the Union of India, that the discharge of the respondent is not founded on the complaint made by some of the advocates. The report prepared by the Presi dent, CESTAT on 18112009, clearly indicated that the only reason for issuing the order of dis charge was contained in the aforesaid report. In our opinion the order of discharge passed by the Union of India was clearly vitiated by the legal malice. It was clearly founded upon the report submitted by the President, CESTAT.
"16. In our opinion the controversy herein is squarely covered by a number of earlier judg ments of this Court, which have been considered and reaffirmed in the case of Union of India and Ors. Vs. Mahaveer C. Singhvi. Considering the similar circumstances this Court observed as fol lows: (SCC p. 228, para 25) "25. In the facts of the case the High Court came to the conclusion that a onesided inquiry had been conducted at different levels. Opinions were expressed and definite conclusions relating to the respondents culpability were reached by key officials who had convinced themselves in that regard. The impugned decision to discharge RCA No. 35/2016 Page 68 of 85 Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma the respondent from service was not based on mere suspicion alone. However, it was all done behind the back of the respondent and accord ingly the alleged misconduct for which the ser vices of the respondent were brought to and end was not merely the motive for the said decision but was clearly the foundation of the same."
"17. In our opinion, there is clearly a live nexus between the decision to discharge the respon dent vide order dated 19th November, 2009; the disturbance caused by the members of the Bar in the Court of the respondent and his leaving the Bench and retiring to his Chamber. The re port of the President leaves no manner of doubt that the respondent had been condemned un heard on the basis of the aforesaid incident and the report of the Chairman, CESTAT dated 18th November, 2009. The order of discharge, being based upon the report of the President, is clearly stigmatic and could not have been passed with out giving an opportunity to the respondent to meet the allegations contained in the report of the President, CESTAT. We may notice here the observations made by this court in the case of Mahaveer C. Singhvi [SCC p. 232 para 46]:
"46. As has been held in some of the cases cited before us, if a finding against a probationer is ar rived at behind his back on the basis of the en quiry conducted into the allegations made against him/her and if the same formed the foundation of the order of discharge, the same would be bad and liable to be set aside. On the other hand, if no enquiry was held or contem plated and the allegations were merely a motive RCA No. 35/2016 Page 69 of 85 Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma for the passing of an order of discharge of a pro bationer without giving him a hearing, the same would be valid. However, the latter view is not attracted to the facts of this case."
"18. This apart, we are also of the opinion that the order of discharge has been passed in order to avoid the procedure of giving one months no tice as required under Rule 9(2). The aforesaid Rule has made a distinction between the mem bers of the CESTAT who were working in the Central Government prior to their recruitment as Members of the CESTAT and the Judicial Mem ber directly recruited from the Bar. In the case of members recruited from the various services of the Central Government, a provision has been made for their reversion to the parent depart ment. In their case a provision has also been made for them to be reverted to the parent de partment without assigning any reason. How ever, the same can only be upon giving one months notice. In the case of Judicial Member, directly recruited, it has been specifically pro vided [Rule 9(2)] that upon completion of three years if the Judicial Member has not been con firmed, his services can only be terminated upon being given one months notice. To avoid this pro vision, an order was passed on 1911 2009, ex tending the respondents period of probation from 21112007 to 21112008 and further upto 21 11 2009. This was clearly done with an oblique motive of issuing the order of discharge on the very next day, i.e., 2011 2009. The action of the Union of India is undoubtedly a colourable exercise of power. The order of discharge is in ut ter violation of Article 14 of the Constitution of In RCA No. 35/2016 Page 70 of 85 Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma dia, rendering the same void. In view of the above, we have no hesitation in holding that the special leave petition No. 34671 of 2012 filed by the Union of India is wholly devoid of merit and has to be dismissed.
"19. This now brings us to the appeal arising out of Special Leave Petition No. 27821 of 2012 filed by Pradip Kumar claiming the relief of reinstate ment and for the grant of consequential benefits including full back wages. Although, the High Court had allowed the writ petition of the respon dent only on the ground that there had been a vi olation of Rule 9(2), we have come to a conclu sion that the order of discharge was vitiated be ing colourable exercise of power, stigmatic and punitive in nature and such order cannot be sus tained in law. In our opinion, the order of dis charge is arbitrary and therefore violates Article 14 of the Constitution. Consequently, we hold that the appellant Pradip Kumar is entitled to be reinstated in service. He shall be entitled to full back wages during the period he has been com pelled to remain out of service. Union of India is directed to release all consequential benefits to the said Pradip Kumar within a period of two months of the receipt of a certified copy of this or der."
CONDITIONS OF SERVICE:
1. Portion of paras No. 10, 12 to 15, 19, 20 to 22 & 25 to 28 of the Judgment of Devinder Singh Vs. Mpl. Council Sannaur, 2011 VI AD (SC) 147 RCA No. 35/2016 Page 71 of 85 Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
2. Portion of paras No. 3, 6, 12 & 13 of the Judgment of Prabhudayal Birari Vs. M.P. Rajya Nagrik Aapurti Nigam Ltd. (2000) 5 SLR 124
3. 1986 (3) SLR 14 Kusum Gupta @ Kusum Bansal Vs. The Haryana State Small Industries and Export Corporation Chandigarh: Termination of service temporary employee
- termination without service of notice as per byelaws of the corporation termination illegally.
UNEQUAL BARGAINING POWER:
1. Relevant portion of paras No.11 & 12, 16 to 18 of the Judg ment of J.K. Goyal Vs. Jaipur Metals & Electricals Ltd,II L.L.J. High Court Rajasthan (1996) INNOCUOUS ORDERS OF DISCHARGE OF PROBATIONER/ LIFTING THE VEIL/TERMINATION OF TEMPORARY EM PLOYEE:
1. Paras No.28 to 32 of the Judgment of Union of India Vs. Ma haveer C. Singhvi 2010 X AD (SC) 376: Dismissal of proba tioner punitive in view of consistent view of the court, order held liable to be quashed.
2. 17 (1982) DLT 544 (SN) UOI Vs. B.C. Gupta. Held before any order is passed terminating the services of a temporary em ployee some reasons must necessarily be recorded for taking such an action. If no reasons are found on files, an aggrieved RCA No. 35/2016 Page 72 of 85 Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma party would be justified in challenging the same as being arbi trary at page 545.
PROTECTION UNDER ARTICLE 311:
1. Paras No.4 to 6 of the Judgment of Risal Singh Vs. State of Haryana. V (2014) SLT 718 Held no ascribing above of rea sons while passing an order vide dispensing with enquiry which otherwise is a must definitely invalidates such an ac tion.
2. Head Note, Paras 11 & 12 of the Judgment of Anoop Jaiswal Vs. Govt. of India & Anr. AIR 1984 SC 636 CAMOUFLAGE FOR ORDRES OF DISMISSAL/ LIFTING THE VEIL:
1. Paras 10, 12, 15, 28 & 29. of Judgment of Ram Ekbal Sharma Vs. State of Bihar & Another AIR 1990 SC 1368
2. AIR 1986 SC 1626 Jarnail Singh Vs. State of Punjab.
FINDINGS AND CONCLUSIONS The observations of the Ld. Trial Court regarding attri bution of biasness on the part of the defendants are dealt herein below one by one:
(i) "............The Plaintiff has approached the court with the pleadings that he was inter viewed and recruited for the other post than asked for......"
RCA No. 35/2016 Page 73 of 85Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma With respect to the aforesaid observations, immediately before these findings the Ld. Trial Court came to the following con clusion: "........As far as the averments regarding the post to be given are concerned the same is barred by the plea of estopel since the plaintiff with his open eyes had accepted the proposal hence now it does not lie in his mouth to contend that he was given the post of Personnel Officer instead of Assistant Manager (Personnel) and (Admn.). He might have applied for the post of Assistant Manager (Personnel and Admn.) but he was found eligible/selected for the post of Personnel Officer hence to say otherwise is not acceptable to the court and the plaintiff has failed to prove the case qua this relief...."
At the first instance, the Ld. Trial Court came to conclu sion that the Plaintiff might have applied for the post of Assistant Manager (Personnel and Admn.) but he was found eligible/selected for the post of Personnel Officer. The aforesaid observation of the biasness by the Ld. Trial Court is altogether contrary to its own ear lier conclusions, which are reproduced hereinabove and the Ld. Trial ought not to have taken into consideration said plea for the purpose of biasness after deciding the issue of estoppel against the Plaintiff. The findings of the Ld. Trial Court are oxymoron. The con clusions of biasness of Ld. Trial Court on this score are totally per verse.
RCA No. 35/2016 Page 74 of 85Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
ii) "......He has also stated his position in the merit list..."
The aforesaid plea has been raised by the Plaintiff in para No.7 of the Plaint, whereby, the Plaintiff has stated that he stood first in the merit list and in reply to the said para, the defen dants have categorically and specifically denied the said contention. The Plaintiff has failed to produce even single document to the ef fect that he stood first in the merit list. The PW1 i.e. Plaintiff was also crossexamined on the said aspect on 22.09.205 and the same is reproduced hereinbelow: ".....I do not have any proof to the effect that I came first on the merit of the list for the post of Assistant Manager but I was called to join first of all. It is wrong to suggest that I was not placed first on the merit list. voltd. I had the better quali fications than all other candidates...."
The aforesaid cross examination vividly depicts that the Plaintiff was not possessed with any document to show that he stood first in the merit list and moreover, he was giving evasive an swer to the said question in the cross examination. The Plaintiff was having the opportunity to prove the documents by invoking the necessary provisions under the CPC by calling upon the records from defendant No.3/3A to prove his position of merit but the Plain tiff has failed to take such steps for the reasons best known to the Plaintiff/Respondent. The said observation of the Ld. Trial Court to reach the conclusions of biasness is also totally unfounded.
RCA No. 35/2016 Page 75 of 85Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
(iii) ".......In para No.21 it was clearly stated that even he was asked even to leave the post of Per sonnel Officer as some other friend of the offi cials of the department was to be promoted at his place....."
The Plaintiff has vaguely taken the said plea without any independent oral or documentary evidence. The Plaintiff has failed to even name the friend of the official who was to be promoted at his place. The Plaintiff has amended his pleadings in the year 2011 but in the said pleadings, the Plaintiff has even failed to point the name of the friend who was promoted in place of the Plaintiff as the services of the Plaintiff was terminated on 01.10.1986. The Plaintiff has failed to ask even single question from witness i.e. DW1 re garding the said imputation which was relied upon by the Ld. Trial Court. The Ld. Trial Court has wrongly taken into consideration the said contention for the purpose of biasness which the plaintiff has failed to prove the same by any cogent, authentic and convincing independent evidence.
(iv) ".................Rather, it has come in the pleadings that he intended to approach the court for redres sal of his grievances and accordingly he filed suit on 29.9.86 and notice of the same was is sued to the defendants for 3.10.86 which was served on 01.10.86 on some of the defendants. But before appearing in the court on 3.10.86 abruptly services of the plaintiff were terminated vide order dated 01.10.86 and even fact of termi nation of plaintiff was not disclosed to the court on 3.10.86 when court ordered for status quo.
RCA No. 35/2016 Page 76 of 85Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma Thus the termination order seems to be ante dated and moreover Ex. DW1 clearly shows that all the wordings were typed and only date was mentioned in handwriting. The date of service of this letter is not proved. No register has been pro duced showing the relevant entry of posting rather the plaintiff submitted that this letter was never received in dak and Ex. PX was received the same. The General Manager has not put date below the signatures and thus it cannot be stated that the termination order was not biased and was not passed in haste and there is no hanky panky. In these circumstances in view of the judgment relied upon supra by the plaintiff, he has been able to prove that his termination or der was bad and he should have been afforded opportunity in these circumstances....."
The aforesaid findings apparently reveals that the matter was filed by the Plaintiff on 29.9.86 and notice was issued for 3.10.86, thus, the matter was listed within four days. The order dated 3.10.86 is reproduced as under for apt understanding: "Pr: Sh. R.P. Gupta Counsel for Plaintiff. Sh. B.S. Charya Counsel for defendant No.3, 4 and 5.
Service on defdt No.1 effected but no one is present on behalf of defdt No.1. As such defdt No.1 is proceeded Exparte. Fresh service be ef fect on defdt No.2, 6 and 7.
Sh. B.S. Charya counsel for defendant No.3, 4 and 5 has not filed W/S and reply. Re quest is made for some more time to file W/s and reply. W/S and reply may be filed on 12.11.86.
RCA No. 35/2016 Page 77 of 85Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma In the meantime status quo be maintained be tween the parties....."
The bare perusal of the aforesaid order, it vividly reveals that no officials from defendant No.3 was present on the said date and the Ld. Counsel had sought time to file W/S and reply and the defendant No.3 was granted time to file the same. This Court can not lose the sight of the fact that the Ld. Counsel might not have re ceived any instructions from defendant No.3 and for this reason he sought time to file W/S and reply. The Ld. Trial Court do not ap pears to have heard the argument on the interim application and after granting time for W/S, the Ld. Trial Court has passed order that in the meantime status quo be maintained between the parties. The Ld. Trial Court had not passed any order against the defen dants/defendant no.3 for not taking action against the Plaintiff as the Ld. Trial Court was itself not in the knowledge of the fact what position exists at that time. Therefore, the Ld. Trial Court had passed the order directing the parties to maintain status quo. The defendant No.3 cannot be burdened that defendant No.3 had not disclosed the factum of termination dated 01.10.1986 of the Plain tiff/Respondent during the course of hearing on 03.10.1986.
The defendant No.3 had filed written statement before the Ld. Trial Court and defendant No.3 has taken specific stand that service of the Plaintiff was terminated on 01.10.1986. The Para No.27 of the written statement on reply on merits is reproduced as under: RCA No. 35/2016 Page 78 of 85 Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma "27. That para 27 of the plaint is wrong and de nied. No valid and legal cause of action at all ac crued in favour of Plaintiff. The suit is otherwise premature at the time of its institution. It has now become infructuous after the service of the Plaintiff have been terminated by the order dated 1st October,1986."
The Replication was filed by the Plaintiff and reply to the said para is reproduced as under: "27. That Para 27 of written statement is de nied and corresponding para 27 of the plaint is reiterated."
The bare perusal of the aforesaid reply of the Plaintiff by means of replication, it clearly reveals that the Plaintiff has not even specifically denied the service of the order dated 1 st October, 1986 on the Plaintiff. No averment is made that the Plaintiff had not re ceived the Letter/Order dated 1st October,1986 but received the Let ter Exhibit PX which was relied upon by the Ld. Trial Court. The Plaintiff has not laid any foundation in the pleading regarding letter Exhibit PX in the said Replication. The said document Ex. PX was put to DW1 without any pleading and DW1 was taken by surprise.
The relevant portion of cross examination of PW1 dated 22/09/2005 is also reproduced herein for apposite understanding: ".......The A.D dated 27/4/91 bears my signa ture and is Ex.PW1/D2. I did not receive letter dated 25th April 1991 vide said AD."
RCA No. 35/2016 Page 79 of 85Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma "It is correct that the AD dated 1/10/86 bears my correct address. I have not received any let ter dated 1/10/86. It is correct that at point A dated 24/9/86 has been mentioned on my suit. It is wrong to suggest that my services were ter minated on 1/10/1986. I have not received any order of termination."
The aforesaid termination letter dated 01/10/1986 was exhibited as Ex.DW1. The postal receipt dated 01/10/1986 was already on the record. The UPCs were also exhibited Ex.DW2 and Ex.DW3. The AD card was exhibited Ex.PW1/D3 and DW1 i.e. Defendant's evidence has stated in his evidence that the said AD card was received back and the same bears the signature of the mother of the plaintiff namely Smt. Prakash Wati. The plaintiff had not given the suggestion to DW1 that AD Card Ex.PW1/D3 does not bear the signature of Smt.Prakash Wati.
The crossexamination of PW1 suggests that his de fence is that he has not at all received any letter. The Plaintiff's evi dence was recorded in the year 2005. The Plaintiff neither pleaded nor mentioned in his evidence that he had not received the termina tion letter dated 01.10.1986 but had received Ex. PX. Moreover, during the recording of the evidence of the Plaintiff, the Plaintiff had not even place the letter Ex. PX. The plaintiff had set up the letter Ex. PX which is not at all pleaded at any point of time nor men tioned in the evidence and the same was appears to be filed in the year 2011 without any permission under Order 7 Rule 14 CPC. In RCA No. 35/2016 Page 80 of 85 Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma the replication filed by the Plaintiff, the plaintiff has not taken such plea. In the year 2011, the plaintiff has filed the application for amendment and seeking the relief of declaration of the letter dated 01/10/1986 as bad in law but at no point of time, in the said amendment also, the plaintiff has taken a stand that the plaintiff has not received the letter dated 01/10/1986 but had received let ter Ex.PX. The letter Ex. PX is not at all addressed at the address of the plaintiff. The DW1 i.e. defendant's evidence was taken by sur prise when abruptly the letter Ex. PX was put to him, which other wise, was never pleaded nor based in plaintiff's evidence at any point of time and even in the application for amendment of the plaint, whereby the plaintiff had sought amendment of the relief of declaration of the letter dated 01/10/1986 as bad in law.
The letter Ex. PX is addressed to M/s. Pearl Electronic Group and not to the plaintiff and the address on the said letter is also of different place and not the address of the Plaintiff. The Ld. Trial Court has not correctly appreciated the facts and wrongly came to the conclusion that the letter dated 01/10/1986 is the an tedated letter or the same is manipulated. The plaintiff has himself admitted that the address of the plaintiff has been correctly shown in the cross examination in the AD Card. Another AD Card was also exhibited of the same address and the same was received by the plaintiff vide Ex.PW1/D2. The DW1 had not at all been crossex amined that the AD card Ex.PW1/D3 does not bear the signatures of the mother of the plaintiff.
RCA No. 35/2016 Page 81 of 85Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma The arguments of the appellant/ defendant no. 3A are correct that there are no pleadings, whereby, the plaintiff has al leged that the letter dated 01/10/1986 is manipulated and fabri cated document. There is no pleading that some portions have been left blank and the General Manager has not put the date be low the signatures.
The Court cannot lose the sight of the fact that every person has his own way of putting the signatures. Some persons used to write the date below the signatures and others do not write the date below the signatures. The writing of the date by hand in the order/letter dated 01.10.1986 is also immaterial. It is a com mon practice in the department that certain drafts are prepared be fore the preparation of the final letter and sometimes, the date is not filled or typed and kept blank to be filled by hand while at the time of signing of the document. The inferences drawn by the Ld. Trial Court are farfetched and totally perverse in view of plethora of documents on record.
The Ld. Trial Court has also came to the conclusion that since no register has been produced showing the relevant entry of posting, rather the plaintiff has submitted that this letter was never received in Dak and Ex.PX was received. This Court has already dealt with the theory of Ex.PX in detail hereinabove. The Plaintiff has nowhere pleaded either in the Replication or by way Amend ment that Ex. PX was received. Mere nonproduction of the register and that too not called upon by the plaintiff by way of appropriate RCA No. 35/2016 Page 82 of 85 Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma proceedings/application does not in any way diminish the veracity of the postal receipt, UPCs and the acknowledgement card in order to prove that the said letter was despatched and received by the plaintiff. Moreover, the Plaintiff has himself had admitted that the AD Card bears the correct address of the Plaintiff. The Plaintiff has also not been able to show from the record whether the Plaintiff has worked in defendant No.3/3A after 1.10.2016.
The Ld. Counsel for Respondent has also relied upon the Office Memorandums pertaining to Probation/Confirmation issued by Ministry of Personnel, Public Grievance and Pensions (Depart ment of Personnel & Training). The said Office Memorandums filed with list dated 18th August, 2018 and argued that the defendant No.3/3A has violated the said Office Memorandums. The bare pe rusal of said Memorandums reveals that the said Memorandums relates to the persons appointed to services and posts in Central Government. This Court has categorically held hereinabove that the defendant no.3/3A/ Appellant is not the Central Government/Government of India and the defendant No.3/3A/ Ap pellant is not instrumentality of Central Government and their em ployees are not entitled to benefit of the provisions of Article 311 of the Constitution of India.
The Judgments relied upon by the Ld. Trial Court which pertains to Article 311 of the Constitution of India are not applica ble to the facts of the present case. The Judgments relied upon by the Ld. Counsel for the Appellant/defendant No.3A that the Civil RCA No. 35/2016 Page 83 of 85 Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma Courts have no jurisdiction to grant the relief of reinstatement with back wages squarely applies to the facts of the present case and the ratios of the same are not reiterated herein for the sake brevity and the same are mentioned hereinabove.
In my considered view, the Plaintiff has also not been able to prove any foundation or victimization on the part of Defen dant No.3/3A in issuing the termination letter dated 01.10.1986. The order dated 01.10.1986 does not reflects or disseminates any stigma or punitive action and it can be considered only as dis charge/ termination simpliciter. The defendant No.3/3A does not found the services of Plaintiff suitable and the defendant No.3/3A has rightly exercised their powers under the appointment letter. The aforesaid findings/inferences of the Ld. Trial Court are contrary to facts and record of the present case. The Judgments relied upon by the Ld. Trial Court and the Respondents are not at all applicable to the facts and circumstances of the present case and the same are distinguishable on facts.
RELIEF:
Accordingly, in view of the discussions, as adumbrated above, I hereby pass the following :: FINAL ORDER ::
1. The impugned Final Judgment and decree dated 05.12.2011 passed by the Ld. Trial Court in Civil Suit No. 648/06/95 is hereby setaside and consequently suit of the Plaintiff/Respondent is hereby dismissed.RCA No. 35/2016 Page 84 of 85
Mother Dairy Fruit & Vegetable Pvt. Ltd. Vs. Rakesh Kumar Sharma
2. No order as to costs in the present appeal. The parties shall bear their own respective costs.
3. The copy of this Judgment may kindly be sent forthwith to the Ld. Trial Court alongwith the record of Trial Court. The decree sheet in the Appeal be prepared, accordingly, in terms of this Judgment.
The Appeal file be consigned to Record Room after due compliance Announced in the open court on this 28th Day of November, 2018.
(ARUN SUKHIJA) ADJ07 (Central) Tis Hazari Courts, Delhi RCA No. 35/2016 Page 85 of 85