Delhi District Court
Mangat Ram Sheokand vs M/S Max Healthcare Institute Limited on 13 October, 2014
IN THE COURT OF CIVIL JUDGE, SOUTH EAST DISTRICT,
SAKET COURTS COMPLEX, SAKET, NEW DELHI
Presiding Officer : Sh. Dinesh Kumar
Suit No. 241/2013
Unique ID No. 02406C0166202011
In the matter of :
Mangat Ram Sheokand
R/o WZ244B/2,
Virender Nagar, Gali no. 1,
Near: B2 - Janka Puri
New Delhi ..........Plaintiff.
vs
M/s Max Healthcare Institute Limited
Max House, Okhla
New Delhi - 110020
ALSO AT:
Dr. Jha Marg,
1, Press Enclave,
Saket, New Delhi - 110017 ............Defendant.
Date of institution of Suit : 06.07.2011
Date on which order was reserved : 05.09.2014
Date of pronouncement of the order : 13.10.2014
JUDGMENT
1. Vide this order, I shall decide the present suit for recovery of Rs.1,65,000/ along with damages and declaration filed by the plaintiff against the defendant. The plaintiff has stated his case as CS. No.241/2013 Mangat Ram Sheokand vs M/s Max Healthcare Institute Ltd. Page 1 of 14 under:
1.1. The defendant was the employer of the plaintiff who is running a Health Care Center. The plaintiff joined the services of the defendant as supervisor - "maintenance and engineering", vide 'offer for appointment' letter dated 10.01.2008 and appointment letter dated 02.02.2008. The plaintiff was working with the defendant with full dedication, devotion and sincerity. During the tenure of service of the plaintiff, he had worked on various posts and had taken up various works to the total satisfaction of the defendant. 1.2. The defendant was not releasing all the remunerations and other benefits to the plaintiff. Therefore, the plaintiff had raised voice against the unfair practice. The defendant always threatened him of dire consequences including losing his job. The defendant establishment used to take more than 12 hours duty from the plaintiff, however, the defendant never paid any over time to the plaintiff. The representatives of the defendant used to obtain the signatures of the plaintiff on over time register and on various vouchers without paying even a single penny.
1.3. The defendant also used to pay the wages much less than the minimum rates as prescribed by the Government of NCT of Delhi and used to obtain the signatures on register of wages under threat/pressure. On few occasions, the plaintiff had raised voice CS. No.241/2013 Mangat Ram Sheokand vs M/s Max Healthcare Institute Ltd. Page 2 of 14 against the acts of unfair labour practices, however, he was always threatened.
1.4. There was no complaint against the plaintiff during his entire service tenure. The plaintiff had worked with the defendant with utmost sincerity. Everything was going on well till 06.08.2010, when the plaintiff fell ill and was medically unfit. He informed Sh.
Ajit Sarkar, his immediate incharge, about his illness and told him that he could not attend his duty due to illness. He was initially treated on 08.08.2010 at MAX Health Care. On 10.08.2010, he consulted a private doctor for his illness. Surprisingly, when the plaintiff reported for his duty on 11.08.2010, he was not allowed to perform his duty. On 15.09.2010, he was called by Sh. Rajesh Verma, HeadHRVice President, and Sh. Amit, to their office and they took the signatures of the plaintiff on some blank papers forcibly. They also took the signatures on a resignation letter dated 15.09.2010. When he tried to protest, they threatened him and used abusive language. They also said that if the plaintiff did not accept and put his signatures on the letter, he would be implicated in a false and frivolous case. They also tried to threaten him by showing the threat of their connection with police and high profile people in Delhi. The plaintiff had no option but to accept the demands of the above mentioned officials of the defendant. By using those documents, the defendant has terminated CS. No.241/2013 Mangat Ram Sheokand vs M/s Max Healthcare Institute Ltd. Page 3 of 14 the services of the plaintiff w.e.f. 15.09.2010 illegally. The defendant also did not pay the legal dues to the plaintiff. The defendant has terminated the services of the plaintiff without any notice pay and without making payment of any retrenchment, compensation, gratuity, service compensation, earned wages for the month of August, September2010, bonus, leave wages, over time wages and other legal benefits.
1.5. The plaintiff sent a legal demand notice to the defendant asking it to pay the dues of the plaintiff. However, the defendant did not pay the dues. Hence, the present suit has been filed with the following prayer:
"a) Pass a money decree for a sum of Rs.1,53,000/ which includes Rs.8723/ against earned wages, Rs.
60,000/ against 3 months notice period, Rs.30,000/ against service compensation, Rs.23,077/ against 30 days EL, Rs.31,200/ against bonus;
b) pay a sum of Rs.12,000/ against damages caused to the plaintiff due to the acts of omission and commission on the part of the defendant;
c) pass a decree of declaration to the effect that the termination of the plaintiff dated 15.09.2010 by the defendant be declared as null and void;
d) grant pendentelite and future interest in favour of the plaintiff and against the defendant from the date of filing of the suit till realization @ 24% P.A.
e) Grant the cost of the suit in favour of the plaintiff;
f) pass any other such order in favour of the plaintiff CS. No.241/2013 Mangat Ram Sheokand vs M/s Max Healthcare Institute Ltd. Page 4 of 14 and against the defendants persons as per the facts and circumstances of the case."
2. The defendant has been served. It has entered appearance. It has filed WS. In the WS, the objection, interalia, is taken that the present suit is not maintainable. The defendant has admitted that the plaintiff was appointed as supervisor "maintenance and engineering", vide appointment letter dated 02.02.2008. It is stated in para 2 of preliminary objections in WS that the defendant company while exercising the right under the relevant termination clause of the employment contract terminated the services of the plaintiff without cause and stigma vide its letter dated 15.09.2010 w.e.f. 16.09.2010. The plaintiff was asked to contact the company for completing the formalities for payment of full and final settlement of dues . However, he failed to approach the defendant company for the same. It is further stated that the Court does not have jurisdiction. Further, the plaintiff has filed the suit to extort money. The defendant has also denied the other allegations of the plaintiff. Hence, it is prayed that the suit of the plaintiff may be dismissed.
3. The plaintiff has filed replication in which he has denied the allegations of the defendant and reiterated the facts stated in the plaint.
4. On the basis of the pleadings of the parties, following issues were framed vide order dated 17.01.2013.
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Issue no. 1 Whether the suit is maintainable in the present form ? OPP Issue no.2 Whether the plaintiff is entitled to a decree for declaration as prayed for in prayer clause (c) of the plaint? OPP Issue no. 3 Whether the plaintiff is entitled to a decree for a sum of money as prayed for in prayer clause (a) of the plaintiff? OPP Issue no. 4 Whether the plaintiff is entitled to damages as prayed for in prayer clause(b) of the plaint? OPP Issue no. 5 Whether the plaintiff is entitled to interest? If so, on what amount, at what rate and for what period? OPP Issue no.6: Relief.
5. The matter was fixed for evidence. The plaintiff has examined himself as PW1 to prove his case. He has reiterated the facts stated in the plaint. PW1 has relied upon the following documents:
a) copy of offer for appointment letter dated 10.01.2008 is Ex.PW1/1;
b) appointment letter dated 02.02.2008 is Ex.PW1/2;
c) copy of legal / demand notice dated 15.10.2010 is Ex.PW1/3;
d) original speed post receipt dated 15.10.2010 is Ex.PW1/4;
e) courier receipt dated 15.10.2010 is Ex.PW1/5.
6. The defendant has failed to lead any evidence despite several opportunities. The opportunity to lead DE was closed vide CS. No.241/2013 Mangat Ram Sheokand vs M/s Max Healthcare Institute Ltd. Page 6 of 14 order dated 24.07.2014, and the matter was fixed for final arguments. Despite several opportunities none appeared on behalf of defendant for submission of arguments. The opportunity of the defendant for oral submissions was closed on 05.09.2014. One more opportunity was granted to the defendant to file written submissions. However, the defendant failed to submit written submissions also.
7. I have heard the submissions of Ld. counsel for the plaintiff and carefully perused the material available on record. My issue wise findings are as follows:
8. Issue no.1: This issue reads as under:
"Whether the suit is maintainable in the present form ? OPP"
9. This issue has already been decided in favour of the plaintiff and against the defendant, as preliminary issue vide order dated 25.04.2013. The said order shall be part of the judgment.
10. Issue no.2: This issue reads as under:
"Whether the plaintiff is entitled to a decree for declaration as prayed for in prayer clause (c) of the plaint ? OPP"
11. The onus to prove this issue was on the plaintiff. The plaintiff has prayed that his termination dated 15.09.2010 may be declared as null and void. Plaintiff has examined himself as PW1 to prove the issue. The witness has deposed that his termination from the CS. No.241/2013 Mangat Ram Sheokand vs M/s Max Healthcare Institute Ltd. Page 7 of 14 service by the defendant was illegal.
12. The witness PW1, in his cross examination has stated that as per the appointment letter Ex. PW1/2 his service could be terminated by either party without cause by giving one month written notice thereof to the other party or one month's fix salary in lieu of notice. Perusal of the letter of appointment dated 02.02.2008, Ex. PW1/2 also would show that it contains the clause "Termination Notice" at page 3. The clause reads as under: "Termination Notice: During the period of probation, either side may terminate this appointment by giving 15 Day's notice or 15 Day's fixed salary in lieu of notice.
"After confirmation, either party may terminate this agreement, without cause by giving One (1) Month written notice thereof to the other party or One (1) Month's fixed salary in lieu of notice. However the Trust/Company reserve the right to accept salary in lieu of notice."
"****"
13. Perusal of this clause of the appointment letter would show that the defendant had a right to terminate the services of the plaintiff without giving any reason by giving one month's notice in writing or by paying one month's fixed salary to the plaintiff. The plaintiff has accepted this letter of appointment. Therefore, no ground is made out to show that the plaintiff is entitled to the relief prayed in clause (c) of CS. No.241/2013 Mangat Ram Sheokand vs M/s Max Healthcare Institute Ltd. Page 8 of 14 the prayer. No such relief can be granted. Hence, issued no. 2 is decided against the plaintiff and in favour of defendant.
14. Issue no.3: This issue reads as under:
"Whether the plaintiff is entitled to a decree for a sum of money as prayed fro in prayer clause (a) of the plaintiff ? OPP"
15. The onus to prove this issue was on the plaintiff. The plaintiff has prayed for a total amount of Rs.1,53,000/ which includes Rs. 8,723/ against earned wages, Rs. 60,000/ against three months notice period, Rs. 30,000/ against service compensation, Rs. 23,077/ against 30 days EL, and Rs. 31,200/ against bonus.
16. As already discussed, the Ex.PW1/2 which is letter of appointment of the plaintiff provides for salary of one month to be paid to the plaintiff if notice of one month in writing is not given by the defendant to the plaintiff. In the present case, admittedly the defendant did not issue any notice in writing to the plaintiff. Therefore, the plaintiff is entitled to salary of one month in lieu of notice period. However, there is nothing on record to show that the plaintiff is entitled to salary of three months in lieu of notice period. During cross examination PW1 has admitted that he has not filed any document to show that defendant was required to give three months advance notice before terminating his services or three months salary in lieu thereof. Ex. PW1/DX1 is the notice of termination of services CS. No.241/2013 Mangat Ram Sheokand vs M/s Max Healthcare Institute Ltd. Page 9 of 14 which has been issued to the plaintiff or 15.09.2010 in accordance with Clause 14 of the letter of appointment. Therefore, I am of the considered opinion that the plaintiff is entitled to only one month's salary in lieu of notice.
17. The plaintiff has claimed Rs.8,723/ against earned wages. PW1 in his evidence has deposed that the defendant is liable to pay Rs. 8,723/ against earned wages. During cross examination PW1 has stated that the earned wages mentioned in affidavit are related to the month of September, 2010. It is proved on record that the plaintiff had worked with the defendant till 15.09.2010 and his services were terminated from 16.09.2010. The defendant has failed to lead any evidence to show that the plaintiff is not entitled to earned wages as claimed by him for the month of September, 2010. Therefore, I am of the opinion that the plaintiff is entitled to the claim of earned wages of Rs. 8,723/ as claimed by him.
18. The plaintiff has further claimed Rs.30,000/ against service compensation. In his cross examination PW1 has stated that this service compensation is related to his whole tenure of his service with the defendant. The defendant has failed to lead any evidence in support of its claim that the plaintiff is not entitled to service compensation. The statement of the witness has remained unrebutted. Therefore, I am of the opinion that the plaintiff is entitled to service CS. No.241/2013 Mangat Ram Sheokand vs M/s Max Healthcare Institute Ltd. Page 10 of 14 compensation as claimed by him.
19. Further, the plaintiff has claimed Rs.23,077/ against 30 days earned leave and Rs. 31,200/ against bonus. PW1 has deposed that he is entitled to this amount. Defendant has failed to lead any evidence to prove that the plaintiff is not entitled to the amount for 30 days earned leave or for the amount of bonus. Hon'ble Supreme Court of India in Vidhyadhar Vs Mankikrao and another AIR 1999 SC 1441 has held that where a party in a suit does not enter in a witness box and does not offer itself to be cross examined by the other side, a presumption would arise that the case set up by it is not correct. The Hon'ble Supreme Court has held as under: "16. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption wold arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbaksha Singh Vs. Gurdial Singh, AIR 1927 PC 230. this was followed by the Lahore High Court in Kirpa Singh Vs. Ajaipal Singh, AIR 1930 Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari Vs Radhabai Krishnarao Deshmukh, AIR 1931 Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter Vs. Narsingh Nandkishore Rawat, AIR 1970 Madh Pra 225, also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (AIR 1927 CS. No.241/2013 Mangat Ram Sheokand vs M/s Max Healthcare Institute Ltd. Page 11 of 14 PC 230) (supra). The Allahabad High Court in Arjun Singh Vs. Virender Nath, AIR 1971 Allahabad 29 held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass Vs Bhishan Chand, AIR 1974 Punj and Har 7, drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box. "
20. In the present case also, the defendant has not led any evidence in support of its contention that the defendant is not liable to pay the amount of earned wages, service compensation, bonus and earned leaves. Therefore, it stands proved, on the balance of probability, that the plaintiff is entitled to Rs. 20,000/ as one month's salary for notice period, Rs. 8,723/ for earned wages, Rs, 30,000/ as service compensation, Rs.23,077/ against 30 days EL, and Rs. 31,200/ against bonus from the defendant. Thus, the plaintiff has proved, on the balance of probability, that he is entitled to recovery of Rs.1,13,000/. The issue is decided accordingly in favour of plaintiff and against the defendant.
21. Issue no.4: This issue reads as under:
"Whether the plaintiff is entitled to damages as prayed for in prayer clause (b) of the plaint ? OPP"
22. The onus to prove the issue was on the plaintiff. The plaintiff has claimed Rs.12,000/ as damages due to the acts of CS. No.241/2013 Mangat Ram Sheokand vs M/s Max Healthcare Institute Ltd. Page 12 of 14 omission and commission on the part of defendant. However, the plaintiff has not led any evidence to prove the damages. As per law, the damages are to be proved specifically. However, there is nothing on record that the plaintiff has suffered any damages due to any act or omission on the part of defendant. The pleadings of the plaintiff are also not clear on this aspect. Therefore, I am of the opinion that the plaintiff is not entitled to the damages as claimed by him in prayer clause (b) of the plaint. The issued is therefore decided against the plaintiff and in favour of the defendant.
23. Issue no.5: This issue reads as under:
"Whether the plaintiff is entitled to interest ? If so, on what amount, at what rate and for what period ? OPP"
24. The onus to prove this issue was on the plaintiff. In the plaint, the plaintiff has claimed interest @ 24% per annum. However, there is nothing on record to show that this is agreed rate of interest. In the absence of any agreement, the Court cannot award such an exorbitant rate of interest. The plaintiff is entitled to reasonable rate of interest. After going through the record, I hold that the plaintiff is entitled to an interest @ 10% per annum from the date of legal notice till the decision of the case. The issue is decided in favour of the plaintiff and against the defendant accordingly.
25. Issue no. 6: Relief.
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26. In the light of the discussion hereinabove the suit of the plaintiff is partly decreed. The relief prayed by the plaintiff in clause
(b) and (c) of the prayer are declined. The plaintiff is entitled to a decree of recovery of Rs.1,13,000/ from the defendant. He is also entitled to an interest @ 10% per annum on the decreetal amount from the date of legal notice i.e. 15.10.2010 till preparation of decree. He is further entitled to an interest @ 6% per annum from the date of decree till realization of amount. He is also entitled to the cost of the suit.
27. Decree sheet be prepared accordingly.
Pronounced in the open Court (Dinesh Kumar) on this 13th day of October, 2014. Civil Judge, South East, Saket Courts, New Delhi.
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