Delhi District Court
Amarjeet Chhikara vs M/S Hans Cultural Centre on 31 January, 2024
-1-
IN THE COURT OF MS. GUNJAN GUPTA,
ADDITIONAL DISTRICT JUDGE (ADJ-04) SOUTH EAST,
DISTRICT COURTS, SAKET, NEW DELHI
In the matter of
CS DJ 382/2017
1. Amarjeet Chhikara
R/o RZF, 776/27, Flat No. A-3 & 4,
Street No. 15, Raj Nagar, Part 2,
Palam Colony, Near Dwarka, Sector 8,
New Delhi-110077
.... Plaintiff
VERSUS
1. M/s Hans Cultural Centre
42, Bhatti Mines,
Opposite Radha Swami, Gate no. 24,
New Delhi-110024
2. M/s The Hans Foundation Hospitals,
(Unit of M/s The Hans Foundation)
C-301, 3rd Floor, HUDCO Place,
Andrews Ganj, Ansal Plaza,
Khel Gaon, Marg,
New Delhi-110045
3. M/s The Hans Foundation
C-301, 3rd Floor, HUDCO Place,
Andrews Ganj, Ansal Plaza,
Khel Gaon, Marg,
New Delhi-110045
4. Ms. Mala Steffen
Managing Director,
The Hans Foundation Hospitals
C-301, 3rd Floor, HUDCO Place,
CS DJ 382/2017
-2-
Andrews Ganj, Ansal Plaza,
Khel Gaon, Marg,
New Delhi-110045
5. Mr. Pankaj Mohan Sharma
AVP- Human Resources,
The Hans Foundation Hospitals
Delhi-Haridwar Highway,
Bahadarabad
Haridwar 249402 (Uttarakhand) ....Defendants
Date of Institution : 03.03.2017
Date reserved for judgment : 16.01.2024
Date of judgment : 31.01.2024
DECISION : Partly
decreed
Suit for Declaration, Damages & Mandatory Injunction
JUDGMENT
1. The present suit is filed by the plaintiff against the defendants seeking declaration that his termination order dated 07.10.2016 issued by the defendant no. 2 be declared as illegal, wrongful, unfair and malafide and without jurisdiction and hence null and void, along with damages for illegal termination and for defamatory allegations. Plaintiff has also prayed for mandatory injunction against the defendants no. 2, 4 & 5 directing them to pay the plaintiff's dues to which he is entitled and to issue an apology in the leading English and Hindi Newspapers for defamatory language used against him and for illegally CS DJ 382/2017 -3- termining the services of the plaintiff.
2. Brief facts of the case, as set out in the plaint, are that :
(i) The Plaintiff was appointed as "SR. Manager Administration and Facilities" by Defendant no. 1-M/s Hans Cultural Centre, vide appointment letter dated 10.12.2014.
The gross salary of the plaintiff was Rs. 68,333/- per month. The plaintiff was confirmed by defendant no. 1 on 09.09.2015 and was promoted to the post of Associate General Manager on 22.06.2016 and was drawing his last salary of Rs. 85,608/- p.m.
(ii) Upon joining the services of Defendant no.1 on 05.01.2015, the Plaintiff was told to perform the duties for all the branches/sister concerns of Hans Foundation i.e. defendant no. 3. The Plaintiff was mainly performing duties for the defendant no.2 i.e. M/s Hans Foundation Hospitals and was under the sole control of defendant no. 2. (iii.) The job/ services of the Plaintiff was interchangeable on the instructions of the Defendant No.2. The Defendant No.2 used to assign work to the plaintiff and further depute him to work for any of the Defendants herein.
(iv). Plaintiff was also made to work for Defendant no.2 & 3 on continuous basis.
(v.) The Hans Foundation (Defendant no.3 herein) is the umbrella organization under which the other defendants operate except defendant no. 1.
CS DJ 382/2017 -4-(vi.) The defendant no. 1 who appointed the plaintiff is not a part of organization of defendant no. 3 i.e. M/s. Hans Foundation. The affairs and working of defendant no.1 is not controlled by defendant no. 3.
(vii.) The Defendant No.1 used to make the Plaintiff work for different entities which had no concern with defendant no. 2 and that too without remuneration on continuous occasions, however, he never claimed the outstanding amount which was due to him as the defendant no. 4 requested him not to claim. (viii.) The Plaintiff on many occasions asked for a written orders from the Defendant No-1, however he was told not to bother about the same.
(ix.) Vide an email dated 07.10.2016 the defendant no. 2 arbitrarily terminated the services of the plaintiff without giving any notice or notice pay or compensation and without offering any full and final settlement.
(x) It is averred that the Defendant no. 2 had no authority to pass the order of termination of the Plaintiff as he was appointed by defendant no. 1.
(xi) No charge-sheet or memorandum was ever issued to plaintiff by the defendants.
(xii) It is averred that the service of the Plaintiff were exemplary and unblemished and during the services of the Plaintiff, Plaintiff was given promotion, appreciation, increase of remuneration and rewards. The plaintiff established the entire 'The Hans Foundation Hospitals' alongwith his CS DJ 382/2017 -5- colleagues and took defendant no. 1, 2 & 3 to a different level altogether which increased the credibility of the defendant.
(xiii) During the period of his employment from 05.01.2015 till his illegal termination of services w.e.f 07.10.2016, no charge-sheet or memorandum was issued against him.
(xiv) Around August - September 2016 the plaintiff and his colleagues pointed out certain irregularities which were in the nature of statutory evasion of the Government regulations, breach of guidelines pertaining to National Green Tribunal, Pauri Garhwal Authority, Statutory compliances pertaining to Hospital Project of Defendant no. 1 and continuous misuse of funds. At this Ms. Mala Steffen (Defendant no. 4) who is the Managing Director of the management of the defendants No- 2 and also the overall in charge of the entire 'The Hans Foundation Hospitals' i.e. the Defendant No. 2, assured the Plaintiff and his colleagues that she would personally look into the matter.
(xv.) However, instead of rectifying the irregularities which were being committed against the Government departments in conducting the affairs of the Defendants, the Defendants under the instruction of defendant No. 4- Ms. Mala Steffen under the signature of one Mr. Pankaj Mohan Sharma (Defendant No.5) terminated the services of the Plaintiff illegally and abruptly by way of a mail dated 07.10.2016. By the said mail, Mr. Pankaj Mohan CS DJ 382/2017 -6- Sharma also requested the plaintiff to deposit all the related properties of the Defendant No. 2. The said mail of 07.10.2016 was also copied to one Mr. A.V.Balakrishnan. It is stated that the Defendant No.5 is not the competent person to pass such orders.
(xvi) Upon asking defendant no. 5 that how he was terminated by defendant no. 2 when he was appointed by defendant no. 1, to which he replied that all the defendants are one entity and told the plaintiff not to be seen near office or he shall face dire consequences. (xvii) On the instructions of defendant no. 5, the plaintiff deposited the cash on 14.10.2016 and articles of the office demanded from him on 15.10.20216 against proper receipt.
(xviii) Thereafter the plaintiff served a demand notice dt 05.11.2016 to the defendants protesting against his illegal and wrongful termination of services w.e.f 07.10.2016 by defendant no. 2. Plaintiff also stated in the said letter that he had returned the belongings of the management against receipts issued by Mr. Md. Shamim under the instructions of Mr. Pankaj Mohan Sharma vide acknowledgement dt 14.10.2016 and 15.10.2016.
(xix) Thereafter, the Plaintiff received letter dated 29.11.2016 issued by the lawyer of Defendant No. 2, served on behalf of all the Defendants stating that all were one entity of the "The Hans Foundation". The said letter CS DJ 382/2017 -7- contained defamatory allegations against the Plaintiff which were baseless and an after thought to cover the act of illegal termination by the Defendant no. 2. The said allegations were made for the first time and were never mentioned in the letter of termination. No chargesheet or memorandum or any enquiry was conducted by the management of Defendant No. 2 on the allegations mentioned in the said letter.
(xx) The plaintiff herein replied to the said letter vide reply dt 07.12.2016 refuting the false allegations leveled against him.
(xxi) It is averred that the Defendant No. 2 along with other Defendant's has damaged and tarnished the reputation of the Plaintiff by intentionally casting stigmatic and scandalous and defamatory allegations at the instance of Defendant no. 4 and 5 who were acting in the conspiracy with each other.
(xxii) It is averred that the Defendants No 4 and 5 used stigmatic words about the Plaintiff in front of the juniors of the Plaintiff and many colleagues of the Plaintiff and the people visiting the office of the defendants by calling him a corrupt person and a thief.
(xxiii) It is averred that the Plaintiff was also informed by certain people who are regular to the premises of the Defendants that the Defendants at their premises at New Delhi and Satpuli had pasted the reply of the advocate CS DJ 382/2017 -8- dated 29.11.2016 on the walls outside the defendant building and also inside the premises at the office of the Defendants.
(xxiv) It is averred that the Defendant No.4 and 5 have distributed the same within the premises of the company in New Delhi & Satpuli.
(xxv) It is averred that the Plaintiff is being avoided by his colleagues and he has become an object of unfavourable sentiments of his fellow colleagues and friends. It is averred that by the above acts, the Plaintiff has been defamed and the same are false and baseless to the knowledge of defendant no. 4 and 5.
(xxvi) It is averred that the acts of Defendant no. 4 and 5 were intended to to harm the reputation of Plaintiff and were malicious, false, baseless and have lowered the dignity and respect of the plaintiff in fronts of colleagues and has put a blotch on the honesty of the plaintiff. (xxvii) At the time of termination, the plaintiff was drawing salary of Rs. 85,608/- per annum.
(xxviii) Hence, the Plaintiff has filed the present suit seeking the following reliefs:-
1. A declaration declaring the termination of plaintiff by the Defendants vide e-mail dated 07.10.2016 as null and void as the same is wrongful, illegal, unfair and malafide and without any jurisdiction.
2. Damages to the tune of Rs. 20 Lakhs against CS DJ 382/2017 -9- defendant no. 2, 4 and 5 towards illegal termination along with interest at the rate of @18% till the date of realization.
3. Damages of Rs. 20 Lakhs against defendant no. 4 & 5 for defamatory language used by Defendant no. 4 and 5 along with interest of @ 18% per annum till the date of realisation.
4. Decree of mandatory injunction against defendant no. 2, 4 and 5 directing them to issue an apology in leading English and Hindi Newspaper for the defamatory language used by them and for the illegal termination.
5. Decree of mandatory injunction against defendant no. 2, 4 and 5 directing them to pay the dues to which the Plaintiff is entitled.
6. Costs.
Case of the Defendants no. 1 to 5
3. The defendants no. 1 to 5 filed their W.S denying the averments in the plaint, however, admitting the appointment of the plaintiff vide letter dt 10.12.2014 by defendant no. 1, his joining on 05.01.2015, his confirmation in the services by defendant no.1 on 09.09.2015 and his promotion.
4. It is stated by defendants no.1 to 5 that the Plaintiff was appointed as SR. Manager Administration and Facilities on 10.12.2014 by Defendant no. 1-M/s Hans Cultural Centre CS DJ 382/2017
- 10 -
for his hospital projects situated as Satpuli, Uttrakhand. The appointment letter of the plaintiff was issued by Sh. Vikrant Pathak.
5. Defendant no. 1 is a society registered under the society Registration Act, 1860 and is recognized as a Charitable Organisation as it is registered under section 12-A and 80 G of Income Tax Act, 1961. it is also registered under Foreign Contribution Regulations Act, 2010.
6. Defendant no. 1 is an independent legal entity and is not a part of defendant no. 3. Defendant no.1 owns a hospital named as "The Hans Foundation General Hospital" situated at Satpuli, Uttrakhand and since defendant no. 2 has expertise to run the hospital/health care centres, the management and running of Hans Foundation General hospital situated at Satpuli, Uttrakhand was entrusted to defendant no.2 by defendant no. 1 management and this how plaintiff was working for defendant no. 1. It is stated that since defendant no.2 was managing the affairs of the organization in which the plaintiff was appointed, it had the authority to terminate the services of plaintiff.
7. It is further averred that plaintiff was not associated with the compliances and legal formalities and hence the question of raising the issue of non-compliance of government regulations does not arise.
CS DJ 382/2017- 11 -
8. It is the case of defendants that the plaintiff was terminated by invoking clause 5.7 of the offer-cum appointment for employment letter dated 10.12.2014 as he was found to be working against the best interest of the organization which was causing huge financial losses to the defendants. It is stated that he was hands in gloves with the other errant officials namely Sh. Vikrant Pathak and Rahul Dhanvantri who have also filed a civil suit against the defendants which are pending in the same court. These employees had created a cartel amongst themselves.
9. It is stated that plaintiff was given full opportunity in person to explain the charges against him and was confronted with facts and circumstances which proved and establish that he was in hands in gloves with other errant officials but the plaintiff miserably failed to explain the same and therefore, after exhausting the principles of natural justice with due prudence, the defendant no.2 terminated the services of the plaintiff.
10. It is further averred that defendant-Ms. Mala Steffen is no more M.D of defendant no. 2 and the suit is not maintainable against her as she is neither the necessary or property party to the suit. It is further averred that defendant no. 5 is heading the H.R Department of defendant no. 2 and was empowered to issue termination.
CS DJ 382/2017- 12 -
11. The plaintiff filed the replication denying the averments made in the W.S and reiterating the contents of the plaint.
12. ISSUES On the basis of pleadings and documents on record, following issues were framed on 14.12.2018:-
i) Whether the plaintiff is entitled to decree of declaration as prayed for in prayer clause (a)? OPP.
ii) If the issue no. 1 is decided in favour of the plaintiff, whether plaintiff is entitled for decree of damages? If yes, the quantum thereof? OPP
iii) If the issue no.2 is decided in favour of the plaintiff, whether plaintiff is entitled to interest on the said damages? If yes, the rate and the period for the same? OPP
iv) Whether the plaintiff is entitled to mandatory injunction as sought in prayer clause (d)? OPP
v) Whether the suit of the plaintiff suffers from concealment of material facts? OPD1 to 5.
vi)Whether the plaintiff has not approached the Court with clean hands? OPD1 to 5.
vii) Whether the suit is bad for misjoinder / non-
joinder of parties in view of preliminary objections no. 4? OPD1 to 5
viii)Relief.
CS DJ 382/2017- 13 -
PLAINTIFF'S EVIDENCE
13. Evidence in this case was conducted before Ld. L.C Sh. Gurmeet Singh Ahuja appointed vide order dt 30.03.2019.
14. Plaintiffs in support of their case examined the plaintiff as PW-1. He tendered his evidence by way of affidavit EX.PW1/A and relied upon the following documents:
1. Copy of the plaint Ex. PW1/1 (Colly).
2. Copy of offer letter / appointment letter dated 10.12.2014 Ex. PW1/2 (OSR).
3. Copy of letter of confirmation dated 09.09.2015 is Ex.PW1/3 (OSR).
4. Copy of the letter of promotion dated 22.06.2016 issued by Defendant no.1 Ex. PW1/4.
5. Copy of termination letter by way of email dated 07.10.2016 Ex.PW1/5.
6. Acknowledgement receipt dated 14.10.2016 and received on 15.10.2016 of handing over the belongings (back to back pages) Ex. PW1/6.
7. Demand notice dated 05.11.2016 along with postal receipts and tracking report is Ex. PW1/7 (Colly).
8. Copy of letter dated 29.11.2016 issued by the advocate of defendant no.2 to PW1 Ex.PW1/8.
9. Reply dated 07.12.2016 of PW1 in response to the letter dated 29.11.2016 along with postal receipt and the CS DJ 382/2017
- 14 -
tracking report is collectively marked as Ex.PW1/9 (Colly).
10. Pay slip of PW1 for the month of July to September 2016 along with break up Ex.PW1/10.
11.Copy of the certificate u/s 65 B of Indian Evidence Act Ex.PW1/11.
15. The defendants in support of their case did not examine any witness and defence evidence was closed vide statement of Ld. Counsel for defendants recorded before Ld. LC, filed on 13.08.2019.
16. Thereafter the matter was posted for final arguments.
17. I have heard the arguments of both the sides and have gone through the record of the case.
18. My issue-wise findings are as under:
19. Issue no.i:
i) Whether the plaintiff is entitled to decree of declaration as prayed for in prayer clause (a)? OPP.
(Prayer (a): A declaration in favour of plaintiff and against the defendants declaring the termination of plaintiff by the Defendant no. 2 company vide e-mail dated 07.10.2016 as null and void as the same is wrongful, illegal, unfair and malafide and without any jurisdiction.
It is submitted by the Ld. Counsel for the plaintiff that the appointment letter dt 10.12.2014 Ex.PW1/2 and the letter of termination dated 07.10.2016 Ex.PW1/5 are not disputed CS DJ 382/2017
- 15 -
and are admitted by the defendants. It is submitted that the services of the plaintiff were terminated with immediate effect without serving him any notice and without informing him of any of the reasons for termination of his services and straight away above email was sent to him, therefore, was in violation of clause 4.4 of the appointment letter. The said is reproduced herein below:
'4.4. After confirmation, in case you resign from the services of the organization, you will be required to give notice of 30 days in writing or salary in lieu of notice. Similarly, the organization will give notice of thirty days or salary of thirty days in lieu of notice prior to termination of service. Your services may be terminated by Management of the organization."
20. It is submitted that the Defendants served the legal notice dated 29.11.2016 Ex.PW1/8 upon the Plaintiff casting defamatory and baseless allegations against the Plaintiff for the first time. It is submitted that this was the first notice ever received by the Plaintiff wherein at least he was informed of the reasons of his termination though the same were false and baseless. It is submitted that for the first time Clause 5.7 of the appointment letter was invoked and defamatory and stigmatic allegations were leveled against the plaintiff.
21. It is submitted that it was an outburst to the plaintiff's demand notice dt 05.11.2016 Ex.PW1/7 (Colly) served by the plaintiff upon the defendant.
CS DJ 382/2017- 16 -
Clause 5.7 of the appointment letter is reproduced herein below:-
'5.7. If you are found guilty of misconduct (including dishonesty or absence without leave, disobedience of lawful orders or any other conduct) which results in bringing the organization or its employees into disrepute at any time during your employment, your services shall be terminated forthwith without any notice or any payment in lieu of notice."
22. It is submitted that the defendants have also miserably failed to prove, the allegations made in the above legal notice, in the present proceedings. It is submitted that the allegation are false and baseless. Be that as it may, denying all the allegations it is submitted that even if the services of the Plaintiff were terminated on the ground of working against the interest of the organization or being hands and gloves with other employees of the organization, yet the Defendants were under an obligation to issue a show cause notice qua the said allegations, some memo or charge-sheet or least conduct an enquiry qua the said allegations, which was not done. It is submitted that none of the Principles of Natural Justice were followed by the Defendants in terminating services of the Plaintiff and hence even under clause 5.7 of the letter of appointment, the termination of the Plaintiff was illegal.
23. In support of his contentions the Ld. Counsel for the plaintiff has placed reliance upon the following judgments:
CS DJ 382/2017- 17 -
AK Kraipak and Others Vs. Union of India -AIR 1970 SC 150. 171, wherein it was held by Hon'ble Supreme Court that:
"20. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of land but supplement it. The concept of Natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely: (1) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram patem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the lines that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries whcihc are considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust CS DJ 382/2017
- 18 -
decision in an administrative enquiry may have ore far reaching effect than a decision in a quasi- judicial enquiry. As observed by the Court in Suresh Koshy George v. University of Kerala (Civil Appeal no. 990/68, decided on 15.07.1968) the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for the purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of the rule was necessary for a just decision on the fact of that case. "
24. In Dharmpal Satyapal Limited Vs. Deputy Commissioner of Central Excise, Gauhati and Others- Civil Appeal No. 4458-4459 of 2015 of Hon'ble Supreme Court, wherein it was held as under:
"25. This aspect of procedural fairness namely, right to a fair hearing would mandate what is literally known as '"earing the other side'" Prof. D.J. Galligan attempts to provide what he calls "a general theory of fair treatment'" by exploring what it is that legal rules requiring procedural fairness might seek to achieve. He underlines the importance of arriving at correct decision, which is not possible without adopting the aforesaid procedural fairness, by emphasising that taking of correct decisions would demonstrate that the system is working well. On the other hand, if mistakes are committed leading to incorrect decisions, it would mean that the system is not CS DJ 382/2017
- 19 -
working well and the social good is to that extent diminished. The rule of procedure is to see that the law is applied accurately and as a consequence, that the social good is realised. For taking this view, Galligan took support from Bentham, who wrote at length about the need to follow such principles of natural justice in civil and criminal trials and insisted that said theory developed by Bentham can be transposed to other forms of decision making as well. This jurisprudence of advancing social good by adhering to the principle of natural justice and arriving at correct decisions is explained by Galligan in the following words:
"On this approach, the value of legal procedures is judged according to their contribution to general social goals. The object is to advance certain social goals, whether through administrative processes, or through the civil or criminal trial. The law and its processes are simply instruments for achieving some social good as determined from time to time by the law makers of the society. Each case is an instance in achieving the general goal, and a mistaken decision, whether to the benefit or the detriment of a particular person, is simply a failure to achieve the general good in that case. At this level of understanding, judgments of fairness have no place, for all that matters is whether the social good, as expressed through laws, is effectively achieved."
Galligan also takes the idea of fair treatment to a second level of understanding, namely, pursuit of common good involves the distribution of benefits and burdens, advantages and disadvantages to individuals (or groups). According to him, principles of justice are the subject-matter of fair treatment.
CS DJ 382/2017- 20 -
However, that aspect need not be dilated upon".
27. It, thus, cannot be denied that principles of natural justice are grounded in procedural fairness which ensures taking of correct decision and procedural fairness is fundamentally an instrumental good, in the sense that procedure should be designed to ensure accurate or appropriate outcomes. In fact, procedural fairness is valuable in both instrumental and non- instrumental terms.
28. It is on the aforesaid jurisprudential premise that the fundamental principles of natural justice, including audi alteram partem, have developed. It is for this reason that the courts have consistently insisted that such procedural fairness has to be adhered to before a decision is made and infraction thereof has led to the quashing of decisions taken. In many statutes, provisions are made ensuring that a notice is given to a person against whom an order is likely to be passed before a decision is made, but there may be instances where though an authority is vested with the powers to pass such orders, which affect the liberty or property of an individual but the statute may not contain a provision for prior hearing. But what is important to be noted is that the applicability of principles of natural justice is not dependent upon any statutory provision. The principle has to be mandatorily applied irrespective of the fact as to whether there is any such statutory provision or not."
25. Relying upon the above judgments, it is submitted by the Ld. Counsel for the Plaintiff that even through Plaintiff was in a private employment yet the Principles of Natural Justice were to be mandatorily followed before arriving at a decision of termination as the same has a CS DJ 382/2017
- 21 -
drastic impact upon the plaintiff.
26. It is further submitted that since the services were terminated allegedly as per termination letter dated 07.10.2016 Ex.PW1/5, on the grounds as alleged by the defendant in their W.S and the legal notice dt 29.11.2016 Ex.PW1/8, the termination was stigmatic and Penal in nature and hence the compliance with Principles of Natural Judge was essential.
27. In support of his contentions, the Ld. Counsel for Plaintiff has placed reliance upon the Judgment in:
1. Kailash Chand Vs DTC [2015 SCC OnLine Del 14600] wherin it was held by Hon'ble High Court of Delhi that:
"14. Next came the decision of the Constitutional Bench reported as AIR 1960 SC 689 State of Bihar v Gopi Kishore Prasad wherein following 5 propositions were laid down regarding termination of the services of a probationer:-
"3. But, if instead of terminating such a person‟s service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case, he is entitled to the protection of Article 311(2) of the Constitution.
4. In the last mentioned case, if the probationer is discharged on any one of those grounds without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge, it will amount to a removal from service within the CS DJ 382/2017
- 22 -
meaning of Article 311(2) of the Constitution and will, therefore, be liable to be struck down".
2. In SP Sharma Vs. IFCI Ltd & Anr [2015 SCC Online 11311] it was held by Hon'ble High Court of Delhi as under:
"8. We need not list the decisions which give the reason why an order terminating the service of a probationer, if stigmatic, is a penal order. We simply note that the legal principle is that where the order affects the reputation of the employee it would hinder future prospects of a job and therefore would be penal. A stigma is a mark of disgrace and hence stigmatic would mean 'of or relating to a stigma'.
9. Law treats reputation as a property. Law also treats reputation as an honour and if understood as an honour it signifies the estimation which a person receives from society. Reputation is also treated in law as dignity for the reason a person's dignity depends on whether others in the community give him the deference that is his desert as a full member of the society."
3. In Dr. Vijayakumaran C.P.V vs Central University Of Kerala & Ors [(2020)12 SCC 426] it was held by Hon'ble Supreme Court as under:
"35. The above decision is, in our view, a clear authority for the proposition that the material which amounts to stigma need not be contained in the order of termination of the probationer but might be contained in any document referred to in the termination order or in its annexures. Obviously, such a document could be asked for or called for by any future employer of the probationer. In such a case, the order of termination would stand vitiated on the ground that no regular enquiry was conducted. We shall presently consider whether, on the facts of the case before us, the documents CS DJ 382/2017
- 23 -
conducted. We shall presently consider whether, on the facts of the case before us, the documents referred to in the in the impugned order contain any stigma."
28. It is further submitted that the defendants have also failed to prove any of the alleged acts imputed upon the plaintiff and have not filed any documents in support of their case nor have brought any witnesses to prove the said allegations. It is further submitted that no questions have been put to the plaintiff during his cross-examination that the plaintiff was involved in the acts as alleged neither any such suggestions were made in the cross-examination.
29. It is further submitted that the act of termination was malacious and his services were terminated because the Plaintiff alongwith his colleagues in the Month of August - September 2016, had pointed out certain irregularities in compliances of Government regulations pertaining to Hospital project of Defendant no.1 and continuous misuse of funds which did not go well with the defendants especially Defendant no. 4 and Defendant no.5. Thus, to conceal the irregularities and wrong doings of the organization the Plaintiff was terminated from his services. Malice of defendants is further substantiated by fact that the Plaintiff was a diligent and hardworking employee and had helped in the development and growth of the defendant organization. It is submitted that the Plaintiff had been appreciated on may CS DJ 382/2017
- 24 -
occasions for his good work by the defendants.
30. It is further submitted that the Plaintiff was appointed by Defendant no.1 and Defendant no.2 had no authority to terminate the services of the Plaintiff and hence the orders of termination was without jurisdiction.
31. Refuting the above contentions, it is submitted by the Ld. Counsel for the Defendant that termination of the Plaintiff was lawful and valid as the same is in consonance with Clause 5.7 of the "Offer cum appointment letter for Employment" dated 10.12.2014 (hereinafter referred to as appointment letter) and thus neither any notice nor any compensation in lieu of the notice was required to be paid and thus the plaintiff has been rightly terminated with immediate effect.
32. It is argued that the Plaintiff was given full opportunity to explain the charges against him and on 07.10.2016 he was confronted with the documentary evidence and the facts and circumstances against him, which proved and established his misdeeds. However, the Plaintiff failed to explain the same. Thus, the Defendants had terminated the services of the Plaintiff after exhausting the Principles of Natural Justice. To substantiate his contention the Ld. Counsel has referred to the words "Discussion this AM" in the e-mail dated 07.10.2016 Ex. PW1/5. It is submitted that any further continuation of the CS DJ 382/2017
- 25 -
services of the Plaintiff would have caused irreparable financial damages to the Defendant and thus termination of his services with immediate effect was necessary.
33. Refuting the contentions of malicious termination, the Ld. Counsel for the Defendant has argued that the Plaintiff was not associated with compliances and legal formalities and hence the question of pointing out the same to the Defendants' or defendants no. 4 and 5 hiding or concealing the irregularities does not arise.
34. It is further submitted that the judgments relied upon by the Plaintiff in support of his contentions are not applicable to the facts of the case and thus do not support the Plaintiff case.
35. Ld. Counsel for the Defendant has controverted the judgments relied upon by the Plaintiff by submitting that the judgment passed in A.K Kraipak v. Union of India and Dharampal Satyapal Ltd Vs. Deputy Commissioner of Central Excise and Kailash Chand vs DTC (supra) are not applicable to the facts and circumstances of the present case as the said judgments related to cases of public employments.
36. It is further submitted that the judgment of S.P. Sharma vs. IFCI Ltd. & Anr (supra) is also not applicable to the present case as the termination letter in the instant case was not stigmatic.
37. It is further argued that a contract for private employment is determinable u/s 14(1)(C) Specific Relief CS DJ 382/2017
- 26 -
Act 1963, and therefore, even if the court come to the conclusion that the case of the Plaintiff is not covered under clause 5.7 of the appointment letter dated 10.12.2014, the case of the plaintiff would be covered by Clause 4.4 and the Plaintiff in that case would at best be entitled to 30 days Salary which he has neither sought, nor is entitled to as clause 5.7 of the appointment letter is applicable.
38. To support his contention the Ld. Counsel has placed reliance upon the following judgments -S.S. Shetty vs. Bharat Nidhi Ltd- Civil Appeal No. 329/1956 passed by Hon'ble Supreme Court and case titled as SDU Travels Pvt. Ltd Vs. Vipin Sharma --FAQ No. 134/2017 decided on 04.05.2017 passed by Hon'ble High Court of Delhi and case titled as Naresh Kumar Vs. Hiroshi Maniwa and & Ors -CS (OS) No. 393/2010 passed by Hon'ble High Court of Delhi.
39. In Naresh Kumar Vs. Hiroshi Maniwa and & Ors, the Hon'ble High Court of Delhi after discussing at length the law laid down in various judgments held as follow:
"8. In view of the aforesaid judgments, the following conclusions in law emerge:-
(i) A contract of private employment is not similar to the public employment and in such private employment there is no scope of applicability of the principles of administrative law/public law. (ii) A contract of employment which provides termination of services by one month's notice, then, at best the employee will only be entitled to one month's pay in terms of the employment contract. An employee is not entitled to any relief of continuation in services or pay with consequential benefits for alleged remaining period of services till the date of his superannuation.CS DJ 382/2017
- 27 -
iii) As per the provision of Section 14(1)(c) of the Specific Relief Act, 1963, a contract which is determinable in nature cannot be specifically enforced. Since the service contract in the present case is determinable by one month's notice there does not arise the question of giving of any reliefs which tantamount to enforcement of a determinable contract. As per Section 14(1)(b), a contract of personal service cannot be enforced when the employer is not the Government or "State"as per Article 12 of the Constitution of India."
40. In S.S. Shetty vs. Bharat Nidhi Ltd it has been held by Hon'ble Supreme Court that:
"13. The position- as it obtains in the ordinary law of master and servant is quite clear. The master who wrongfully dismisses his servant is bound to pay him such damages as will compensate him for the wrong that he has sustained. "
They are to be assessed by reference to the amount earned in the service wrongfully terminated and the time likely to elapse before the servant obtains another post for which he is fitted. If the contract expressly provides that it is terminable upon, e.g., a month's notice, the damages will ordinarily be a month's wages.................. No compensation can be claimed in respect of the injury done to the servant's feelings by the circumstances of his dismissal, nor in respect of extra difficulty of finding work resulting from those circumstances. A servant who has been wrongfully dismissed must use diligence to seek another employment, and the fact that he has been offered a suitable post may be taken into account in assessing the damages." (Chitty on Contracts, 21st Ed., Vol. (2), p. 559 para. 1040)".
41. Rebutting the above contentions, it is argued by the Ld. Counsel for the Plaintiff that the Ld. Counsel for the Defendant has referred to words "Discussion this AM" in the letter of termination dated 07.10.2016 (Ex.PW1/5) to show compliance of Principles of Natural Justice. However, no records of the minutes or any proceedings CS DJ 382/2017
- 28 -
have been placed on record to establish the fact that there was any such discussion held before the illegal termination and even no tangible reasons have been given for not holding an inquiry.
42. It is submitted that there is no doubt that parties herein are governed by a private contract of employment and as per settled law and provisions of section 14 of Specific Relief Act, 1963 such contracts are determinable in nature and in case of mere wrongful termination the only relief can be the salary for agreed Notice Period. However, in the present case the Plaintiff not only claims a declaration that termination is wrongful because it was immediate and without notice but also because allegations of misconduct have been levelled against him which caused damage to reputation of the Plaintiff and for which neither any inquiry was conducted nor the same were proved.
43. In view of the arguments of the parties, to decide this issue this court shall examine the following points:
i). Whether in view of the judgments relied upon by the plaintiff, Principles of Natural Justice were required to be followed in the facts of the case.
ii). Whether the defendants were required to follow the Principles of Natural Justice as per the terms of clause 5.7 of the letter of appointment itself.
iii). Whether the defendant's in fact followed the CS DJ 382/2017
- 29 -
Principles of Natural Justice before terminating the plaintiff.
iv). Whether the ground of termination/allegations of misconduct are proved in the present case.
44. The main grievance of the Plaintiff is that he has been illegally and maliciously terminated by levelling false allegations of misconduct, without complying with the Principles of Natural Justice and by doing so they have defamed the plaintiff. The defence taken by the Defendant is that Principles of Natural Justice were complied with and termination was effected after confronting the Plaintiff with the documentary evidence and facts and circumstances against him and in accordance with Clause 5.7 of the "Offer - cum appointment letter for Employment" date 10.12.2014.
45. Though the Ld. Counsel for the Defendant has argued and relied upon the documentary evidence Ex. PW1/5 to show that Principles of Natural Justice were complied with yet at the same time has controverted the judgments relied upon by the Plaintiff and argued that the said Judgments are not applicable in cases of private employment thus in effect and indirectly presenting that the defendants were not required to comply with the Principles of Natural Justice. Therefore, it becomes imperative to first examine whether the compliance of Principles of Natural Justice is required in the facts cases CS DJ 382/2017
- 30 -
of the present case.
46. In my considered opinion, the defendants ought to have followed the principles of natural justice in the facts and circumstances of the present case and to hold this, I draw support from the judgments discussed above as well as the terms of the contract of employment i.e. Ex.PW1/5. I shall deal with the same separately as follows:
i). Whether in view of the judgments relied upon by the plaintiff, Principles of Natural Justice were required to be followed in the facts of the case.
The judgments A.K. Kripak vs. UOI, Dharampal Satyapal Limited Vs. Deputy Commissioner of Central Excise, Gauhati and Others and Kailash Chand Vs. DTC case (supra) related to the cases of public employment. However, no straight jacket formula has been laid down to ascertain the applicability of the Principles of Natural Justice to the facts of a particular case. The Hon'ble Court have not confined the applicability of Principles of Natural Justice to any particular category of cases. It has been held in the above judgments that Principles of Natural Justice operate in areas not covered by validly made laws. It has also been held that when a grievance is raised before the court that the Principles of Natural Justice are not complied with then the Courts have to examine whether in the facts of the case Principles of Natural Justice were to be followed or not. It has time and again been held that CS DJ 382/2017
- 31 -
Principles of Natural Justice are a duty to act fairly and to ensure procedural fairness. Further, it has been held that merely because following of Principles of Natural Justice would not change the ultimate decision, the authorities would not have the liberty to jump the applicability of Principles of Natural Justice. Further, the Hon'ble Court in Dharampal Satyapal Limited Vs. Deputy Commissioner of Central Excise, Gauhati and Others has held that the Principles of Natural Justice would mean natural sense of what is right and wrong and the Hon'ble court has even termed it as "moral naturalism."
47. Not only this, in Kailash Chand v. DTC case (supra), the Hon'ble court had held that a probationer Civil Servant, had no right to the post as he is not confirmed and he can be terminated without any enquiry. Yet the court held that if the allegations are of misconduct etc, an order of termination would be bad, if it is without enquiry, as it is stigmatic and evil consequences will follow.
48. Similar is the case in hand where the plaintiff (though not a public servant) could have been terminated without enquiry had it been a termination simplicitor and the defendant would have been well within their rights; under the settled legal position to terminate the plaintiff without any enquiry and without complying with the Principles of Natural Justice. However, this case not being a case of termination simplicitor but founded on allegations of working against the CS DJ 382/2017
- 32 -
interest of the organization, the defendants ought to have followed the Principles of Natural Justice as the plaintiff is stigmatized and he will live with this stigma all his life. His self esteem is lowered in his own eyes and he will carry this burden throughout his life. His right to dignified life is also affected as until he disproves these charges, they continue to be attached to him. Not only this, the possibility cannot be ruled out that the colleagues of the plaintiff and employees in the defendant's organization, would come to know of these allegations thereby affecting the future prospects of his career.
49. The defendants instead of invoking clause 4.4 of the employment contract Ex.PW1/5 and terminating the plaintiff simplicitor, chose to invoke clause 5.7 and to deprive the plaintiff of his right to compensation in lieu of notice period. Thus, it was incumbent upon the defendants to arrive at a decision of guilt of the plaintiff by acting fairly and by giving a hearing to the plaintiff.
50. Further in Private Employment generally contracts are determinable by fixing a particular notice period. At times, employees are terminated by immediate payment of compensation in lieu of notice. Therefore, there is very less security to the employees. Yet the employee poses trust in his employer that his employer will be fair with him and he will not be terminated wrongfully by leveling unfounded allegations. Thus even a private employer is required to act fairly and if not at least not to cause harm to the employee in CS DJ 382/2017
- 33 -
any manner whatsoever.
51. It is also to be emphasized that the defendant has not brought the attention of this court to any judgment which hold that Principles of Natural Justice are not required to be followed in the cases of Pvt. Employment. The judgment relied upon by the Ld. Counsel for defendant to controvert the above issue are only to the effect that if the termination is illegal, the employee is entitled to damages and not the reinstatement.
52. Thus, I find support from the judgments discussed above to hold that in peculiar facts of the case before me, the defendant ought to have followed the Principles of Natural Justice.
53. ii). Whether the defendants were required to follow the Principles of Natural Justice as per the terms of clause 5.7 of the letter of appointment itself. A termination of service governed by contract of private employment is illegal, if it is in violation of the terms of contract.
54. A reading of clause 5.7 of the appointment letter makes it clear that the Management has to form an "opinion" that the employee is "guilty of" the acts stated therein.
55. The word "guilty" would mean that a person has been proved to have committed the act he is accused of. And to form an opinion of guilt there has to be some CS DJ 382/2017
- 34 -
material, some evidence, some enquiry or atleast hearing to the employee. Thus, the Management is required by clause 5.7 to come to a conclusion of guilt of the accused, and if it so come to a conclusion then as per the clause the services can be terminated without serving 30 days notice as envisaged in clause 5.7 or giving compensation in lieu of notice.
56. In coming to the conclusion/ opinion of guilt the defendant could not have acted arbitrarily and unfairly and could not at its sweet Will terminated the services of the Plaintiff by just having a conception of misconduct of the Plaintiff, in its mind. Had it been so there would have been no need to include this clause in the Contract.
57. Thus, clause 5.7 casts a duty upon the Defendant to form an opinion of guilt as it has a penal consequence of depriving the Plaintiff of 30 days time to enable him to find an alternative employment or else to a salary of 30 days time to enable him to sustain himself during that period and to search for his new source of livelihood.
58. Thus, it is clear from the clause agreed between the parties themselves that fair play, justice and non arbitrariness was expected from the defendant.
59. Thus, it was imperative upon the defendant to first prima facie make its mind as to acts of alleged misconduct of the Plaintiff on the basis of some documents, complaint by colleagues or seniors of Plaintiff or other people in CS DJ 382/2017
- 35 -
official dealing with him, thereafter to give notice of charges against the Plaintiff and to finally to hold an enquiry into those charges also affording Plaintiff an opportunity to explain the charges against him.
60. From the above it is also clear that clause 5.7 is not a case of simplicitor termination at the sweet will of the Defendant (employer) but there is a condition embodied in the said clause which is to be fulfilled before taking action. The defendants were at liberty to invoke clause 4.4 and terminate the plaintiff simplicitor, however, in the present case the defendant has chosen to give reason for termination wherein certain allegation have been made and the moment the Defendant choses to do so, he is bound by the Principles of Natural Justice as per the terms of the contract itself.
61. Having clarified that the Defendant was bound to follow the Principles of Natural Justice, I would next examine :
iii). Whether the defendant's in fact followed the Principles of Natural Justice before terminating the plaintiff.
62. The Ld. Counsel for the Defendant has drawn the attention of this court to the word "discussion this AM"
which find mention in e-mail dated 07.10.2016 (Ex. PW1/5).
63. The defendant has not brought on record any CS DJ 382/2017
- 36 -
evidence to show that any discussions were carried out with the Plaintiff qua the evidence appearing against him, before terminating his services. No notice, no letter intimating him the time for discussion on the aspect, no minutes of meeting enquiring into the allegations against the Plaintiff or even a testimony of a witness testifying fact of such enquiry has not been brought on record. No document has been brought on record wherein the evidences against the plaintiff have been considered and the decision of the Guilt of the plaintiff was arrived at by the defendants. There is not even an iota of hint in the cross-examination to this effect and no question was put to the witness to show that he was confronted with any documents or facts and circumstances before his termination. No suggestion to this effect has also been made in his cross-examination. Writing and referring to some previous discussions in the termination email, in no way establishes that the hearing was given to the plaintiff. Thus, Defendant has failed to prove that the Plaintiff was confronted with the evidence against him.
64. As far as enquiry, service of notice etc qua the allegations against the plaintiff is concerned, during the course of arguments, the Ld. counsel for the defendants has admitted that no such notice or enquiry was ever conducted. Thus it is clear that the Principles of Natural Justice were not followed by the defendants before terminating the plaintiff.
CS DJ 382/2017- 37 -
65. iv). Whether the ground of termination/allegations of misconduct are proved in the present case.
The defendant has not pointed out any facts in the W.S qua the misconduct of the plaintiff. No specific instances have been pointed out. No documents showing misconduct of the plaintiff have been filed.
66. There is not even an iota of hind in the W.S or even in the legal notice dt 29.11.2016 Ex.PW1/8 as to what were the acts of the plaintiff which were against the best interest of the organization and for committing what acts the cartel was formed with other errant officials or what financial losses were resulting from his acts etc. No question to this effect has been put in the cross-examination, no suggestion has been given. In fact during arguments also, Ld. Counsel for defendants has not substantiated on the same. It is merely submitted and averred that cartel was formed with other employees who have filed the suit and he was working against the interest of organization. Ld. Counsel during arguments has argued that Mr. Rahul Danwantri and the plaintiff used to work together at the Delhi International Airport Limited and the Plaintiff during the Cross Examination has also admitted that Mr Rahul Dhanwantri introduced Mr. Vikrant Pathak to the Plaintiff and from there on the Plaintiff was employed with the Defendant. However, to my mind the factum of having worked together in the previous employment or having been introduced to the present employment by one of CS DJ 382/2017
- 38 -
the colleagues, in no way establishes that plaintiff in any way had committed any wrong doings as alleged.
67. Thus in view of the above discussion, it is clear that the defendant ought to have followed the Principles of Natural Justice but have not followed the same. Further the defendants have miserably failed to prove the allegations leveled against the plaintiff. Thus in view of the foregoing discussions, relying upon the judgment discussed above, I hold that the termination of the plaintiff was illegal and wrongful. However, it cannot be declared that the termination was null and void as the consequence that would follow would be orders for reinstatement of the plaintiff which is neither claimed by the plaintiff nor can be granted in view of the law as settled in the various judgments by Hon'ble Courts that in case of contract of Pvt. Employment, the employee is not entitled to order of continuation in service and, therefore, the declaration that the termination was null and void, is declined.
68. As far as the contention of malicious termination is concerned, the plaintiff has also failed to prove the malice on the part of the defendant and no material has been brought on record to prove the said contention. Hence the termination cannot be declared to be malicious.
69. Further, I do not consider it necessary to delve into the question whether the termination was without jurisdiction. I have already held above that termination was illegal and wrongful and even the consequence of holding the CS DJ 382/2017
- 39 -
termination to be without jurisdiction would be that termination was illegal and wrongful. Further, neither any arguments have been made nor any evidence has been led to prove or to disprove the said issue and mere averments have been made.
70. The judgment in Dr. Vijayakumaran C.P.V vs Central University Of Kerala & Ors (supra) is not applicable to the facts of the case as in the instant case, no document containing stigmatic allegations is referred to in the termination letter dt 07.10.2016.
71. The issue no. 1 is accordingly decided and it is held that the termination of the plaintiff was illegal and wrongful.
72. ISSUE NO. ii:
The plaintiff has claimed damages clubbing his two cause of actions i.e. illegal termination and defamation. Damages to the tune of Rs. 20 lacs each has been claimed for the same.
73. Damages for illegal and wrongful termination It has already been held in Issue no. 1 above that the termination of the plaintiff was illegal and wrongful. This court has also observed how the defendant has violated the terms of the contract by not following the Principles of Natural Justice and has also failed to prove the allegations against the plaintiff.
74. It was argued by Ld. Counsel for plaintiff that the plaintiff could not procure a good employment for himself CS DJ 382/2017
- 40 -
and is unemployed till date and is seeking help from his fiends and relatives. However, the plaintiff has not led any evidence to show that the plaintiff tried to procure alternative employment but could not procure the same neither any proof of his current financial status has been filed by him.
75. It is a settled law that in cases of contract of private employment, if the termination by the employer is illegal then the employee is entitled to damages for breach of contract. However, the damages have to be proved by the person alleging the breach. It is also settled law that in case the contract provides that the contract is determinable by serving notice for a particular period, damages to which the employee is entitled is to be the salary for the notice period.
76. In the present case since the parties have agreed as per clause 4.4 of the Appointment letter Ex.PW1/2 that the contract shall be determinable by serving 30 days notice, the plaintiff is only entitled to salary for 30 days. The plaintiff cannot be held to be entitled to the damages higher than 30 days salary. (Reliance is placed upon the judgments in S.S. Shetty vs. Bharat Nidhi Ltd, SDU Travels Pvt. Ltd Vs. Vipin Sharma and Naresh Kumar Vs. Hiroshi Maniwaand & Ors (supra)).
77. The case of the plaintiff is squarely covered by the judgments referred above and the plaintiff has not produced any evidence or any case law to the contrary to show that he is entitled to the amount of damages as he claims.
CS DJ 382/2017- 41 -
78. The plaintiff has filed on record the pay slips for the month of July till September, 2016 which are Ex. PW1/10 alongwith certificate u/s. 65-B of IEA Ex.PW1/11, according to which the gross salary of the plaintiff was Rs. 79,000/-. The said salary slips though denied by the defendant in his affidavit of A/D of documents yet the defendant has not led any evidence to contradict the said salary slips or to show the exact salary of the plaintiff. In view of the same, the plaintiff is held entitled to Rs. 79,000/- as damages for wrongful and illegal termination of his service by the defendants. The defendants no. 2 is held liable to pay the same to the plaintiff. The defendants no. 2 is directed to pay the same within two months from the date of this order.
79. Damages for defamatory language used by defendant no. 4 & 5 A damages of Rs. 20 lacs have been claimed by the plaintiff for the defamatory language used by defendants no. 4 & 5. However, to ascertain whether the defendant no. 4 & 5 are liable to pay damages, it is first to be examined whether the defendant no. 4 & 5 have defamed the plaintiff.
80. It is submitted by Ld. Counsel for plaintiff that the defendants no. 4 & 5 have also intentionally harmed the reputation of the plaintiff and have defamed him and thus the plaintiff is entitled for damages for the defamation. Ld. Counsel for plaintiff has relied upon para 27 & 28 of the plaint in support of his contentions. The same are CS DJ 382/2017
- 42 -
reiterated in para 2(xxii) to 2(xxix) of this judgment. The Ld. Counsel has placed reliance upon a judgment cited as M.S. Ahluwalia Vs. Tehalka.com-2023 SCC Online Del 4275 to submit as to what acts constitute defamation.
81. It is further submitted that the defendants have denied the said allegations but have not led any evidence to controvert the allegations of defamation and have also not put any suggestions to the plaintiff on the averments of defamatory statement made in the plaint. It is submitted that where the defendants do not cross-examine a person on the affidavit and the contents of the suit, the same stands to be admitted especially when the defendant itself has chosen not to lead any evidence, therefore, adverse presumption is to be drawn against the defendants on the basis of the principles contained in illustration (g) of u/s. 114 of Indian Evidence Act, that the defendant no. 4 and 5 have defamed the plaintiff. It is further submitted that since the people before whom the defematory allegations were made were the employees of the defendants, it was difficult for the plaintiff to produce any evidence in this regard.
82. In support of his contentions, the plaintiff has relied upon the judgment in Iswar Bhai C. Patel Vs. Harihar Behera - 1993 (3) SCC 457.
83. Refuting the contentions of the plaintiff, it is submitted by Ld. Counsel for defendants that in a suit for damages for defamation, publication of the defamatory statement which CS DJ 382/2017
- 43 -
has the effect of lowering the reputation of the person defamed, in the eyes of the right thinking members of the society is to be proved. However, the plaintiff has not led any evidence to prove the same and only had made a bald averments in the plaint. It is further submitted that no presumption can be drawn u/s. 114 of Indian Evidence Act as first the plaintiff has to stand on his own legs to prove his case and once that is done, it is only then that the defendant is required to rebut the same by leading evidence. It is further submitted that the general rule as to plead and proof is that one who pleads must prove and the only exception to this rule is when the pleadings are admitted by the adversary and as per order 18 Rule 1 CPC only once the defendant admits the fact pleaded by the plaintiff, the plaintiff is relieved from proving his case and the obligation will fall upon the defendant to plead his case first. It is submitted that since there is no admission on the part of defendants, the plaintiff had to prove his case for defamation first. Since the same was not done, there was no requirement for the defendant either to cross-examine the witness on the said aspect or to lead evidence to disprove the same.
84. In support of his contentions, Ld. Counsel for defendants has placed reliance upon the judgments - Sabiha Sultana And Ors vs. Ahmad Aziz and Ors- CS(OS)2958/2011 decided on 31.08.2017 passed by Hon'ble High Court of Delhi and Balakrishna Kar and CS DJ 382/2017
- 44 -
Ors Vs. H.K. Mahatab-Civi Revn. No. 19 of 1954 passed by Hon'ble High Court of Orrisa.
85. Though averments are made in the plaint that the plaintiff was called as a 'Thief and a Corrupt person" before the juniors and colleagues of the plaintiff by defendants no. 4 & 5 and notice dt 29.11.2016 Ex.PW1/8 was pasted on the walls inside and outside the defendant's office and that the defendants no. 4 & 5 distributed the said notice in their office, yet the plaintiff has not led any evidence to prove the above allegations.
86. It is a settled law that for defamation, the one who alleges defamation has to prove the publication of a defamatory content. Mere averments in the plaint is not sufficient to hold that the plaintiff has been defamed.
87. This Court agrees with the contention of Ld. Counsel for defendant that unless the plaintiff proves his case and as long as the same are denied by the defendant in his W.S, the defendant is not required to lead any evidence to rebut the allegations unless and until the same are proved by the plaintiff. Further, the plaintiff has also alleged that the defendants have pasted the copy of notice dt 29.11.2016 upon the walls outside the building of the office of defendants and if that is so, it was not difficult for the plaintiff to prove the same. To hold so, I find support from the judgment - Balakrishna Kar and Ors Vs. H.K. Mahatab-Civi Revn. No. 19 of 1954, wherein it has been held by Hon'ble High CS DJ 382/2017
- 45 -
Court of Orissa as under:
"3. The lower Court appears to have made a confusion between the right to begin and the proof required in support of the plaintiff's case. It may be that the defendant has admitted the publication of the articles but it cannot be stated that he admitted that the articles constituted a libel on the character of the plaintiff. That the plaintiff has a reputation which could be damaged by the alleged libellous writing or that it has been so damaged as to justify the claim is a matter peculiarly within the knowledge of the plaintiff and has to be established by him. Sections 101, 102 and 103, Evidence Act, lay down the rules to be followed in determining on whom the onus lies of proving a particular fact. The allegations essential for the support of a party's case may be negative in form but affirmative in essence. The plaintiff who complains of an attack upon his character or reputation has, in the first place, however cleverly he may frame his allegations in the plaint, to make out that he had a reputation which had been damaged by the writing complained against. The true rule in such cases is laid down in Ameer Ali's commentary on this bunch of sections to the following effect:
"When the issue raised by the Court is in substance whether the plaintiff's or defendant's story is true, it is possible that neither of the stories may be true. The question, then, arises which of the two alternative issues is the really material one. So the really material one is the first of the issues -- is the plaintiff's story true?"
If this rule is applied as the proper test to the facts of the present case the Court has before it two alternative stories:
firstly, that the plaintiff "had a reputation which has been damaged giving him a right to recover damages; but as against this the defendant claims privilege, fair comment, and justification by truth, Neither of these versions may ultimately be found to be true. In such a situation, it would clearly be the duty of the plaintiff to prove, in the first instance, that his story is true.
4. Another point which the Court below has missed is that the defence is substantially an argumentative traverse of the truth of the plaintiff's story and cannot be taken to be an admission of any of the plaint allegations, constituting defamation of the plaintiff's character. The only fact that may CS DJ 382/2017
- 46 -
be regarded as having been admitted is that the defendants are respectively the editor and publisher of the journal in which the impugned articles appeared. But it cannot be taken to have been admitted in the pleading that they constitute a libel on the plaintiff's character. In these circumstances the onus lies on the plaintiff affirmatively to establish his case, as set out in the first two issues; otherwise he must fail and in that event, it is open to the defendant to say:
"I need not prove the truth of my defence as the plaintiff has not proved his."
88. The judgment in Iswar Bhai C. Patel Vs. Harihar Behera - 1993 (3) SCC 457 is therefore, of no assistance to the plaintiff.
89. The judgment in Nannu Mal Vs. Ram Prasad-
decided on 19.02.1926 passed by Hon'ble High Court of Allahabad and Brijlal Prasad Ramcharan Sharma Vs. Laldas Guru Gautamdas Bairagee-Decided on 14.08.1939 passed by Hon'ble High Court of Nagpur relied upon by Ld. Counsel for defendants are of no assistance to the defendant as in the present case specific averments qua defamation have been made in the plaint.
90. In view of the above discussion, since the defamation is not proved, the plaintiff is not entitled to any damages for defamation.
Issue no. 2 is accordingly decided.
91. ISSUE NO. iii:
If the issue no.2 is decided in favour of the plaintiff, whether plaintiff is entitled to interest on the said CS DJ 382/2017
- 47 -
damages? If yes, the rate and the period for the same? OPP In view of the findings in issue no. 2 above, the plaintiff is held entitled to interest on damages awarded in issue no. 2. Since the plaintiff would have been entitled to 30 days salary immediately on the date of termination of his service i.e. on 07.10.2016, therefore, interest @ 9% per annum is awarded to the plaintiff w.e.f. 07.10.2016 till the date of realization. If the payment of damages awarded in favour of plaintiff is not made within two months as directed, the interest shall be payable @ 12% p.a. Issue no. 3 is accordingly decided.
92. ISSUE NO. iv:
Whether the plaintiff is entitled to damages on account of mental stress, emotional trauma and harassment on account of his illegal termination and consequential unemployment? If yes, quantum thereof? OPP No such prayer has been made by the plaintiff in the prayer clause of the plaint and hence this issue is deleted.
93. Issue no. v.
Whether the plaintiff is entitled to mandatory injunction as sought in prayer clause (d)? OPP The plaintiff has prayed for mandatory injunction seeking directions to defendants no. 2, 4 & 5 :
CS DJ 382/2017- 48 -
94. a). For the payment of his dues to which he is entitled.
Apart from claiming the said relief, there is neither any pleading to this effect nor the plaintiff has elaborated either in his plaint, his evidence or his arguments as to what were his entitlements of which he was deprived and what was the amount of these entitlements. A mere averment is made in the plaint that he was terminated without full and final settlement. In view of the same, no direction can be issued to the defendant directing him to make any payment to the plaintiff on account of unpaid entitlement and relief prayed is declined. However, the plaintiff is at liberty to approach the defendant for the full and final settlement of his dues, if any.
95. b). for publishing an apology to plaintiff in one Hindi and one English Newspaper for the defamatory language used against the plaintiff and for illegal termination.
The plaintiff has also prayed that the defendant be directed to issue apology to plaintiff in one Hindi and one English Newspaper for the defamatory language used against the plaintiff and for illegal termination. However, I have already observed in issue no. 2 above that the plaintiff has failed to prove the allegations of defamation, hence the question of issuing apology in newspaper to undo the harm does not arise. As far as apology for illegal termination is concerned, no submissions have been made by Ld. Counsel CS DJ 382/2017
- 49 -
for plaintiff as to why such a direction is appropriate in this case and to undo what harm. The termination of service by employer on whatever grounds is a matter between the employer and the employee and it would not be appropriate to issue any such directions even though the termination is illegal. Hence the present prayer can also be not granted to the plaintiff. The said relief is accordingly declined.
This issue is accordingly decided against the plaintiff.
96. ISSUE NO. vi & vii:
vi) Whether the suit of the plaintiff suffers from concealment of material facts? OPD1 to 5.
vii)Whether the plaintiff has not approached the Court with clean hands? OPD1 to 5.
The burden to prove these issues was on defendant no 1 to 5. It is averred by Ld. Counsel for defendants that the plaintiff has concealed abouts his misdeeds in the organization and has not mentioned the same in the plaint, however, I have already observed in issue no. 1 above that the defendant has failed to prove the allegations of misconduct, misdeeds against the plaintiff. In fact the defendants themselves have not mentioned any specific facts qua the alleged misdeeds of plaintiff. Thus the defendant had failed to show and prove any material facts that have been concealed by the plaintiff or that the plaintiff has not come to the Court with clean hands.
Issue no. 6 & 7 are accordingly decided against the defendant and in favour of plaintiff.
CS DJ 382/2017- 50 -
97. Issue No. viii:
Whether the suit is bad for misjoinder/non-joinder of parties in view of preliminary objections no. 4? OPD1 to 5 No arguments and submissions have been made on this issue by the parties before this court. There is nothing on record to enable this court to decide this issue. Even otherwise, the findings on this issue do not impact the present proceedings in view of the provisions of order 1 Rule 9 R/w section 99 CPC.
In view of the same, no findings are required on this issue.
98. Relief:
In view of the above findings on the issues, the suit stands partly decreed.
99. One time costs of Rs. 1,35,550/- (including Court Fee, Litigation Expenses and fee of the Ld. Local Commissioner for recording of evidence) is also awarded in favour of plaintiff.
100. Decree sheet be drawn accordingly. File be consigned to Record Room.
Announced in the open Court on 31.01.2024.
(GUNJAN GUPTA) Additional District Judge-04 (SE), District Courts, Saket, New Delhi CS DJ 382/2017