Delhi District Court
Shri Rafat Khan vs M/S Teckinfo Solutions Private Ltd on 8 January, 2016
IN THE COURT OF SH. ARUN KUMAR GARG: CIVIL JUDGE:
SOUTH WEST DISTRICT: DWARKA COURT: NEW DELHI
Civil Suit No:800/11
Unique case ID No: 02405C0343852011
IN THE MATTER OF
Shri Rafat Khan
S/o Shri Mohd Zaheer Khan,
R/o A64, Ashoka EnclaveII,
Sector 37, Faridabad3
... Plaintiff
Versus
M/s Teckinfo Solutions Private Ltd
1/1BA, 3rd Floor, Mohamma Pur,
New Delhi110066
... Defendant
Date of filing : 15.12.2011
Date of Institution : 17.12.2011
Date of pronouncing judgment : 08.01.2016
A SUIT FOR DECLARATION THAT A VALID WRITTEN
EMPLOYMENT CONTRACT EXISTS/SUBSISTING BETWEEN
THE PARTIES AND GRANT OF CONSEQUENTIAL RELIEFS TO
THE PPLAINTIFF.
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Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd
Judgment dated 08.01.2016 Page no. 1 of 67
JUDGMENT
1. By this judgment, I will dispose of the present suit of plaintiff for declaration with consequential reliefs. Present suit was filed by the plaintiff on 15.12.2011 initially seeking a declaration of the acts of defendant treating the plaintiff as terminated as bad in law and not binding upon the plaintiff and seeking reinstatement in services of defendant with a direction to the defendant to pay back wages to plaintiff. Plaintiff had also prayed for direction to the defendant to treat the plaintiff in service and the declaration of the act of defendant in preventing and stopping the plaintiff from sitting in his office after 17.08.2011 and discharging his duties within defendant's office as bad in law.
2. Brief case of the plaintiff as per plaint is that he was employed by defendant company vide appointment letter dated 01.05.2006 and the terms and conditions of the appointment were subsequently amended on 01.04.2011 by the defendant while Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 2 of 67 appointing the plaintiff at the post of Sales Head(Northern Region). According to plaintiff, the defendant while acting contrary to the terms and conditions of the Contract of employment entered into between the parties, is not permitting the plaintiff to discharge his official duties after 17.08.2011 on the pretext that services of the plaintiff had already been terminated vide letter dated 08.08.2011. It is the case of the plaintiff that services of the plaintiff could not have been terminated by the defendant with effect from 08.08.2011 in as much as in terms of the employment contract the defendant has neither served two months notice upon the plaintiff nor has the defendant given any reasons for alleged termination of the services of the plaintiff nor has the defendant paid the salary for two months in lieu of notice period. Even otherwise, according to him, the defendant has taken contradictory stand as to the date of alleged termination of the plaintiff in as much as at some places the defendant has alleged the date of termination as Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 3 of 67 08.08.2011 and at some places date of termination of services of plaintiff is alleged to be 17.08.2011. Thus, according to the plaintiff, aforesaid acts of the defendant in stopping the plaintiff from discharging his official duties in terms of contract of employment and treating the plaintiff as terminated are not only contrary to the terms and conditions of the appointment letter dated 01.05.2006 and 01.06.2011 but the said acts according to him, are also bad in law being arbitrary, malafide, unjust, improper, unlawful, unconstitutional, against principles to natural justice and settled principles of constitutional and services law laid down by superior courts. He had thus not only sought a declaration of aforesaid acts as null and void and not binding upon the plaintiff but had also sought his reinstatement in services of defendant with direction to defendant to pay the back wages.
3. Upon receipt of the plaint, defendant was summoned vide order dated 04.01.2012. Defendant entered his appearance through Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 4 of 67 counsel on 03.02.2012 and filed the written statement on 10.02.2012.
4. Brief case of the defendant as per written statement is that the suit of the plaintiff in the present form is not maintainable in as much as by filing the present suit, plaintiff is seeking specific enforcement of contract of personnel services which can not be enforced in view of provisions of Section 14 and 41(e) of the Specific Relief Act. According to the defendant, services of the plaintiff were rightly terminated by defendant vide letter dated 08.08.2011 on account of his unauthorised absence from duty. According to the defendant, after the services of plaintiff was terminated by defendant vide letter dated 08.08.2011, the plaintiff has trespassed into the office of defendant and has forcibly occupied one seat in the office as 17.08.2011 whereupon the police complaint was made by the defendant. The plaintiff has thereafter settled the matter with the defendant in police station and requested the defendant to treat the date of Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 5 of 67 his termination is 17.08.2011 instead of 08.08.2011 to which the defendant has acceded and accordingly, issued a letter to the plaintiff for full and final settlement of dues considering the date of termination of services of plaintiff as 17.08.2011 instead of 08.08.2011. Thus, according to defendant, termination of plaintiff by the defendant is absolutely correct and suit of the plaintiff in the present form is not maintainable.
5. Replication was thereafter filed by plaintiff on 24.05.2012 to the written statement of defendant. The plaintiff has once again reiterated all averments made by him in the plaint and has denied all contrary averments made by the defendant in written statement. It is alleged by the plaintiff in his replication that merely because plaintiff is not covered by Industrial Disputes Act, 1947 or Article 311 of the Constitution, he can not be treated as bonded labour and his alleged termination by the defendant without assigning any valid reason for the same is arbitrary and in violation of fundamental rights of the plaintiff Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 6 of 67 under Article 14 and 21 of the Constitution of India. According to him, alleged termination of the plaintiff by the defendant is not valid vigeopardi* is clear from the fact that the defendant in the alleged letter dated 17.08.2011 as well as subsequent correspondence has extended the service condition/obligation of the plaintiff to collect the outstanding amount from the clients even after alleged termination of the service. According to him, the alleged termination letter dated 08.08.2011 has been subsequently fabricated by defendant and no such letter was received by the plaintiff through registered post bearing no.A2066. According to him, vide registered post envelope bearing no.A2066, the plaintiff has actually received an invoice of one of the client of the defendant i.e. M/s Dr Lal Paths Lab Pvt Ltd which was sent to him by the defendant in terms of his email dated 30.07.2011 and subsequent follow up till 06.08.2011. Thus, according to him, he is entitled to reliefs prayed for by him in the plaint.
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6. Subsequently, after dismissal of his application under Order 39 Rule 1 and 2 of CPC vide order dated 10.02.2012 an application was moved on behalf of plaintiff under Order 7 Rule 14 (3) read with Section 151 CPC seeking permission to place on record certain additional documents and same was allowed Ld Predecessor of this court vide order dated 07.01.2013. Plaintiff has moved another application on 07.01.2013 under Order 6 Rule 17 read with Section 151 CPC seeking amendment in the plaint and the same was dismissed as withdrawn by Ld Predecessor of this court vide order dated 26.11.2013.
7. Another application under Order 6 Rule 17 read with Section 151 CPC was moved on behalf of plaintiff on the same day which was allowed by this court vide order dated 03.05.2014. Through, aforesaid application, plaintiff has prayed for amendment in the prayer clause of the original plaint. In the amended plaint the plaintiff has deleted the relief of reinstatement prayed for by him in the original plaint and also Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 8 of 67 the relief of his back wages and plaintiff has substituted the relief of 'declaration' reinstatement and direction to defendant to pay back wages with the prayer for declaration that there exists subsisting and a valid written employment contract dated 01.05.2006 between the parties which has not been terminated or cancelled till date. The plaintiff has also prayed for a direction to the defendant to release pending dues/arrears of salary of the plaintiff along with interest @ 12% per annum. In addition, the plaintiff has prayed for compensation on account of acts of the defendant preventing the plaintiff by police pressure to continue in discharge of his duty after 17.08.2011. Written statement to the amended plaint dated 16.07.2014 was filed by the defendant on 22.07.2014 wherein the defendant has taken similar pleas which were taken by him in his original written statement.
8. Subsequently, an application was moved on behalf of plaintiff under Order 12 Rule 6 read with Section 151 CPC which was Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 9 of 67 dismissed by this court vide order dated 19.08.2014. On an another application of plaintiff under Order 11 Rule 14 read with Section 151 CPC, defendant was directed to produce original attendance register for the period from 01.07.2011 to 17.08.2011 maintained by the defendant company. The same was produced by defendant company on 16.04.2015 and thereafter, on the basis of pleadings of the parties, following issues were settled by this court vide order dated 16.04.2015: i. Whether the employment contract dated 01.05.2006 between the plaintiff and defendant company still exists and the same has not been terminated by the defendant company till date? OPP.
ii. Whether the employment contract of the plaintiff has been validly terminated by the defendant company by serving the letter dated 08.08.2011 upon the plaintiff? OPD iii. Whether as per the settlement/ agreement between the parties the effective date of termination of contract of employment by the defendant company is 17.08.2011 instead of 08.08.2011? OPD.
Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 10 of 67 iv. Whether the plaintiff has been forcibly restrained by the defendant by applying police pressure from continuing his service with effect from 17.08.2011? OPP. v. Whether the suit of the plaintiff for declaration as to subsistence of his contract of employment is not maintainable in view of law laid down by Hon'ble Supreme Court? OPD.
vi. Whether the plaintiff is entitled for a decree of declaration as per prayer (a) of the amended plaint? OPP. vii. Whether the plaintiff is entitled to the decree of dues and arrears of salaries after 17.08.2011 from the defendant alongwith interest @ 12 % per annum? OPP viii. Relief.
1. Thereafter, matter was fixed for plaintiff's evidence. Plaintiff has examined himself as sole witness in support of his case and has tendered his evidence by way of affidavit Ex PW1/1 along with following documents:
(i) Ex PW1/A: Appointment Letter dated 01.05.2006;
(ii) Ex PW1/B: Agreement dated 01.04.2011 read with 16.06.2011;
Civil Suit No.800/11
Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd
Judgment dated 08.01.2016 Page no. 11 of 67
(iii) Ex PW1/C: Rules Hand Book dated 15.04.2011;
(iv) Ex PW1/D: Email communication of the Director
of the defendant company dated 08.04.2011 and 19.06.2011;
(v) Ex PW1/E(Colly): Emails dated 08.07.2010, 01.02.2011, 15.03.2011, 25.03.2011, 31.05.2011, 20.07.2011 between the plaintiff and management of defendant company;
(vi) Ex PW1/F: Emails dated 31.07.2008, 08.03.2010 written by Shri Rajiv Gupta to the plaintiff;.
(vii) Mark P/G1: Power of Attorney dated 15.09.2010;
(viii) Mark P/G2: Emails produced by WLC College in Consumer Court;
(ix) Ex PW1/H: Copy of email dated 19.05.2011;
(x) Ex PW1/I: Emails between plaintiff and Directors of defendant company dated 23.07.2011 and 27.07.2011;
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Judgment dated 08.01.2016 Page no. 12 of 67
(xi) Ex PW1/J: Email dated 23.07.2011 of Director
of defendant to the accountant of defendant;
(xii) Ex PW1/K: Copy of complaint dated 27.07.2011;
(xiii) Ex PW1/L: Email reply dated 29.07.2011 from Director of defendant company;
(xiv) Ex PW1/M: Email dated 28.07.2011 of Mr Arvind Dhar to the directors of the defendant company;
(xv) Ex PW1/N: Email dated 02.08.2011;
(xvi) Ex PW1/O(Colly): email dated 06.08.2011 and attendance register maintained by the defendant; (xvii) Ex PW1/P: Email dated 30.07.2011 to Administration Department;
(xviii) Ex PW1/Q(Colly): Emails dated 01.08.2011, 04.08.2011, 05.08.2011 and 10.08.2011;
(xix) Mark P/T1: Police complaint dated 16.08.2011; (xx) Ex PW1/U: Letter dated 17.08.2011 written by defendant to SHO;
Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 13 of 67 (xxi) Ex PW1/V: Legal notice dated 01.09.2011 of the plaintiff;
(xxii) Ex PW1/W1: Defendant's reply dated 22.09.2011 to the notice of plaintiff;
(xxiii) Ex PW1/W2: Defendant's demand notice dated 01.09.2011;
(xxiv) Ex PW1/X: Defendant's letter dated 18.08.2011; (xxv) Ex PW1/Y: Copy of defendant's letter dated 19.08.2011 with postal confirmation dated 23.08.2011;
(xxvi) Mark P/T2: ATR submitted by SHO on
08.11.2011.
2. PW1 was duly cross examined by Ld counsel for defendant and was discharged. Thereafter, on a separate statement of plaintiff PE was closed vide order dated 25.09.2015 and matter was fixed for defendant's evidence. Shri Uday A Vaishampayan, Director of the defendant company has examined himself as DW1 i.e. sole witness on behalf of defendant company and has Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 14 of 67 tendered his affidavit Ex DW1/A in evidence along with following documents:
(i) Ex DW1/1: Complaint of Mr Sunil Gupta dated 27.07.2011;
(ii) Mark A: Email of Mr Arvind Dhar dated 27.07.2011;
(iii) Ex DW1/3: Termination letter dated 08.08.2011;
(iv) Ex DW1/4: Postal receipt regarding dispatch of termination letter dated 08.08.2011;
(v) Ex DW1/5: Letter dated 17.08.2011;
(vi) Ex DW1/6: Legal notice dated 01.09.2011 sent tby defendant company to plaintiff.
3. DW1 was duly cross examined by plaintiff and thereafter, on a separate of Director of defendant company, DE was closed vide order dated 16.11.2015 and matter was fixed for final arguments.
4. Final arguments were heard on behalf of parties on 09.12.2015.
Besides, written submissions were also filed on behalf of Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 15 of 67 defendant.
5. I have heard the submissions made on behalf of the parties and have also perused the record. My issuewise findings on issues settled by this court vide order dated 16.04.2015 in the light of submissions made on behalf of parties and material available on record are as follows: ISSUE NO.1:Whether the employment contract dated 01.05.2006 between the plaintiff and defendant company still exists and the same has not been terminated by the defendant company till date? OPP.
6. Onus to prove the aforesaid issue was upon the plaintiff. It is submitted by plaintiff that employment contract dated 01.05.2006 between the parties still subsists in as much as same has not been validly terminated by the defendant company. According to him, there can not be two dates of termination of an employee whereas in the case in hand, defendant is taking contradictory stand as to the correct date of termination of service of the plaintiff. On the one hand, according to him, Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 16 of 67 defendant is claiming that the employment of the plaintiff was terminated by defendant company vide letter dated 08.08.2011 served upon the plaintiff through registered AD vide postal receipt No. A2066. On the other hand, according to him, defendant is relying upon a letter dated 17.08.2011 written by director of defendant company to SHO wherein it has been mentioned that services of plaintiff has been terminated with effect from 17.08.2011. According to the plaintiff, none of the aforesaid stands taken by the defendant can be correct in as much as the defendant has failed to prove service of alleged letter dated 08.08.2011 upon the plaintiff whereas the letter dated 17.08.2011 had not been addressed by the defendant to the plaintiff as the same was admittedly addressed to the SHO. According to him, valid service of notice of termination of employment contract from the employer to the employee is absolutely essential in order to constitute valid termination of contract by the employer. He has relied upon the judgment of Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 17 of 67 Hon'ble Supreme Court in Union of India & others VS Dina Nath Shantaram Karekar and Others dated 30.07.1988 in support of his aforesaid submissions. Besides, according to him, even if, letter dated 17.08.2011 to SHO is assumed to be a settlement, the same is void in terms of provisions of Section 25 of Contract Act as the same is without any consideration. Besides, according to him, the very fact that plaintiff was not relieved by the defendant and services of plaintiff have been availed by the plaintiff in terms of POA Mark P/G1 even after alleged termination, itself shows that the contract dated 01.05.2006 between the parties still subsists. It has further been argued by him that defendant has failed to prove that the plaintiff has remained absent without information on account of which his services were allegedly terminated vide letter dated 08.08.2011, and as such according to him, alleged termination is in violation of terms and conditions of the contract dated 01.05.2006 as amended vide agreement dated 01.04.2011 read Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 18 of 67 with 16.06.2011.
7. On the other hand, it is submitted by counsel for defendant that it is the case of the defendant that letter dated 08.08.2011 was served by the defendant upon the plaintiff through registered post bearing postal receipt no. A2066. According to him, plaintiff has not denied that he has received one document by aforesaid registered post. Though, according to him, plaintiff has tried to take a stand that in the aforesaid envelope he has received an invoice in the name of Dr Lal Path Labs Pvt Ltd, however, according to him, plaintiff has failed to prove aforesaid fact in as much as it was admitted by him during his cross examination that he had not sent any email to the defendant for sending the aforesaid invoice to the plaintiff for its delivery to representative of Dr Lal Path Labs Pvt Ltd. Thus, according to him, defendant has been able to prove that the letter dated 08.08.2011 was duly served upon the plaintiff. Even otherwise, according to him, as per terms and conditions of the Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 19 of 67 contract between the parties, no specific form of communication for termination of services of the plaintiff by defendant was required and in any case plaintiff has come to know about termination of his services on 17.08.2011 when he received the letter at the police station. Thus, according to him, once the plaintiff has come to know about factum of termination of his services, the employment contract between the parties can not be declared to be still subsisting. According to him, the plaintiff has failed to discharge his onus to prove that the employment contract dated 01.05.2006 is still existing.
8. I have heard the submissions made on behalf of the parties and have also perused the record.
9. A bare perusal of written statement shows that the defendant has taken a categorical stand that letter of termination dated 08.08.2011 was sent by the defendant to the plaintiff vide postal receipt no.A2066 dated 08.08.2011 and it has not been disputed by the plaintiff that he has received one registered Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 20 of 67 envelope vide postal receipt No. A2066 dated 08.08.2011. However, his stand is that in the aforesaid registered envelope he had received an invoice in the name of Dr Lal Path Labs Pvt Ltd which was sent to him by defendant at his specific request for handing over the same to representative of client of the defendant viz. Mr Punit Mehta. Plaintiff was duly cross examined by counsel for defendant on the aforesaid aspect. During his cross examination, it was stated by the plaintiff that aforesaid invoice was handed over by him to Mr Punit Mehta of Dr Lal Path Labs Ltd on 09.08.2011, though, he did not remember the exact time of handing over of aforesaid invoice. He could not even tell whether aforesaid invoice was handed over by him to Mr Punit Mehta in the morning or evening on 09.08.2011. It was further deposed by him during his cross examination that during 08.08.2011 to 12.08.2011 he was on leave. He has further admitted during his cross examination that he has not sent any communication either in the form of letter Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 21 of 67 or in the form of any email to the defendant company requesting the later to send the aforesaid invoice in the name of Dr Lal Path Labs Pvt Ltd at his residential address. On the contrary, he has admitted that he has written an email to defendant on 30.07.2011 that the invoice may be sent to Dr Lal Path Labs Pvt Ltd/Mr Punit Mehta. He has admitted that in the aforesaid mail, he has not requested for sending of invoice to him. He has admitted that the envelope was received by him from defendant on 09.08.2011. He has not proved the delivery of invoice Ex PW1/Q by him to Mr Punit Mehta on 09.08.2011 by examination of Mr Punit Mehta.
10.Thus, in my considered opinion, plaintiff has failed to probabilise his case that in the registered envelope dated 08.08.2011, he had received an invoice in the name of Dr Lal Path Labs Pvt Ltd and not any termination letter as alleged by the defendant in as much as, there is no communication other than the e mail dated 30.07.2011 by plaintiff to the defendant Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 22 of 67 that the aforesaid invoice may be sent to him at his residential address. Even in the aforesaid email, plaintiff has requested that the invoice may be sent to Mr Punit Mehta/Dr Lal Path Labs Pvt Ltd. The aforesaid plea taken by the plaintiff is further not plausible in view of the fact that admittedly the plaintiff was on leave during 08.08.2011 to 12.08.2011 and in case there was an urgency to send bill/invoice to M/s Dr Lal Path Labs Pvt Ltd as alleged by the plaintiff, in my considered opinion, the said urgency could not have been meted out by sending the aforesaid invoice from office of defendant company in Delhi to the residential address of the plaintiff at Faridabad and thereafter by the plaintiff to the representative of Dr. Lal Path Labs Ltd at Delhi. On the other hand, if the said invoice was required to be sent to Dr Lal Path Labs Ltd on an urgent basis, it would have been more appropriate for the defendant company to post the same from Delhi directly to the office of Dr Lal Path Labs Pvt Ltd situated in Delhi or else to send the same by Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 23 of 67 hand through any representative. Thus, in my considered opinion, the defendant has been able to probablize its defence that the termination letter dated 08.08.2011 was duly served upon the plaintiff on 09.08.2011 whereas plaintiff has failed to probablize his case that he had not received the termination letter dated 08.08.2011 in the registered envelope No.A2066 but an invoice.
11. Even if it is assumed for the sake of arguments that aforesaid letter was not received by plaintiff on 09.08.2011, in my considered opinion, the defendant has served the notice of termination upon the plaintiff in police station on 17.08.2011 and it does not matter that the notice was not addressed to plaintiff. As per the terms and conditions contained in the employment contract, the services of the plaintiff could have been terminated by defendant by notice in writing and there can not be any dispute that notice dated 17.08.2011 is in writing and was duly received by plaintiff in PS R.K.Puram. Thus, the Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 24 of 67 factum of termination of employment contract was communicated by the defendant to the plaintiff in writing through letter dated 17.08.2011 which was duly received by the plaintiff in the police station. Besides, the said fact was conveyed by the defendant to the plaintiff vide legal notice dated 01.09.2011 and in its reply dated 23.09.2011 to the legal notice of the plaintiff. In my considered opinion, even if, one has not been informed about the termination of service, it does not imply that termination has not taken place since giving an information is not a precondition for the termination of contract and an employee may at best claim damages/compensation for the period during which he remains under impression that he continues to be employed.
12.Moreover, even if termination is in breach of terms and conditions of the contract of the employment, at the best entitlement would be to claim damages which naturally flow out of the breach i.e. illegal termination of the contract and Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 25 of 67 plaintiff can not seek a declaration that the contract between the parties still subsists or he still continues to be in service of the defendant unless of course plaintiff is a public servant and has been sought to be removed from the services in contravention of provisions of Article 311 of the Constitution of India or he is a worker and is seeking the reinstatement on being dismissed under the Industrial Law or defendant is a statutory body acting in breach or violation of mandatory provisions of the statute. While taking the aforesaid view, I am duly supported by the following observations made by Hon'ble Supreme Court in Para no.18 of its judgment in Executive Committee of Vaish Degree College Samiti and others Vs Laxmi Narain & others (1976) 2 SCC 58: "18. On a consideration of the authorities mentioned above, it is, therefore, clear that a contract of personal service cannot ordinarily be specifically enforced and a court normally would not give a declaration that the contract subsists and the employee, even after having been removed from service can be deemed to be in service against the will and consent of the employer. This rule, however, is subject to Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 26 of 67 three well recognised exceptions -- (i) where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India; (ii) where a worker is sought to be reinstated on being dismissed under the Industrial Law; and
(iii) where a statutory body acts in breach or violation of the mandatory provisions of the statute."(Emphasis mine) Similar are the observations made by Hon'ble Mr. Justice P.N. Bhagwati in his concurring judgment, which though have also been quoted by the plaintiff in his replication, but the same goes against the contention sought to be raised by the plaintiff. The relevant para from the concurrent judgment in the aforesaid case is reproduced hereinbelow:
"31. I will first take up the first part of the question. On this part, there was no dispute between the parties that the requirements of Statute 30 were not complied with by the appellant in terminating the service of the first respondent. The controversy merely centered round the question whether the termination of service in breach of the requirements of Statute 30 rendered the termination null and void so as to entitle the first respondent to a declaration that he continues in service or it amounted merely to a breach of contract giving rise to a claim for damages. Let me first examine this question on principle before turning to the decided cases. There are two distinct classes of cases which might arise when we are considering the relationship between employer and employee. The relationship may be governed by contract or it may be governed by statute or statutory regulations. When it is governed by contract, the question arises whether the general principles of the law of contract are applicable to the contract of employment or the law governing the contract of employment is a separate and sui generis body of rules. The crucial question then is as to what is the effect Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 27 of 67 of repudiation of the contract of employment by the employer. If an employer repudiates the contract of employment by dismissing his employee, can the employee refuse to accept the dismissal as terminating the contract and seek to treat the contract as still subsisting? The answer to this question given by general contract principles would seem to be that the repudiation is of no effect unless accepted, in other words, the contracting party faced with a wrongful repudiation may opt to refuse to accept the repudiation and may hold the repudiation to a continuance of his contractual obligation. But does this rule apply to wrongful repudiation of the contract of employment? The trend of the decisions seems to be that it does not: It seems to be generally recognised that wrongful repudiation of the contract of employment by the employer effectively terminates the employment : the termination being wrongful, entitles the employee to claim damages, but the employee cannot refuse to accept the repudiation and seek to treat the contract of employment as continuing. What is the principle behind this departure from the general rule of law of contract? The reason seems to be that a contract of employment is not ordinarily one which is specifically enforced. If it cannot be specifically enforced, it would be futile to contend that the unaccepted repudiation is of no effect and the contract continues to subsist between the parties. The law in such a case, therefore, adopts a more realistic posture and holds that the repudiation effectively terminates the contract and the employee can only claim damages for wrongful breach of the contract. Now a contract of employment is not specifically enforced because ordinarily it is a contract of personal service and, as pointed out in the first illustration to clause (b) of Section 21 of the Specific Relief Act, 1877, a contract of personal service cannot be specifically enforced. Of course this illustration has now been omitted in the new Specific Relief Act, 1963 and what would be the effect of such omission may be a point which may require consideration someday by this Court. But for the purpose of this case, I will proceed on the assumption that even under the new Act, the law is the same and it frowns on specific enforcement of a contract of personal service. Now what is the rationale behind this principle? That is found stated in the locus classicus of Fry, L.J. in De Francesco v. Barnum [(1890) 45 Ch D 430 : 60 LJ Ch 63 : 6 TLR 463] :
"For my own part, I should be very unwilling to extend decisions the effect of which is to compel persons who are not desirous of maintaining continuous personal relations with one another to continue those personal relations. I have a strong impression and a strong feeling that it is not in the interest of making that the rule of specific performance should be extended to such cases. I think the courts are bound to be jealous, lest they should turn contracts of Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 28 of 67 service into contracts of slavery; and therefore, speaking for myself, I should lean against the extension of the doctrine of specific performance and injunction in such a manner."
Thereafter, His lordship while observing that the rationale can have application only in cases where contract of employment is a contract of personal service involving personal relations and it can have little relevance to conditions of employment in modern large-scale industry and enterprise or statutory bodies or public authorities where there is professional management of impersonal nature, though proposed that in case of employment under a statutory body or public authority where there is ordinarily no element of personal relationship, the employee may refuse to accept the repudiation of the contract of employment by the statutory body or public authority and seek reinstatement on the basis that the repudiation is ineffective and the contract is continuing, but has refrained from finally pronouncing the law on the said lines as is clear from the following observations:
"This rationale obviously can have application only where the contract of employment is a contract of personal service involving personal relations. It can have little relevance to conditions of employment in modern large-scale industry and enterprise or statutory bodies or public authorities where there is professional management of impersonal nature. It is difficult to regard the contract of employment in such cases as a contract of personal service save in exceptional cases. There is no reason why specific performance should be refused in cases of this kind where the contract of employment does not involve relationship of personal character. It must be noted that all these doctrines of contract of service as personal, non-assignable, unenforceable, and so on, grew up in an age when the contract of service was still frequently a "personal relation" between the owner of a small workshop or trade or business and his servant. The conditions have now vastly Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 29 of 67 changed and these doctrines have to be adjusted and reformulated in order to suit needs of a changing society. We cannot doggedly hold fast to these doctrines which correspond to the social realities of an earlier generation far removed from ours. We must rid the law of these anachronistic doctrines and bring it in accord "with the felt necessities of the time". It is interesting to note that in Fray's classic work on Specific Performance, contracts of service appear in a small group under the sub-heading "Where enforced performance would be worse than non-performance". We may ask ourselves the question : for whom it would be worse and for whom it would be better. Where, in a country like ours, large numbers of people are unemployed and it is extremely difficult to find employment, an employee who is discharged from service may have to remain without means of subsistence for a long period of time. Damages equivalent to one or two months' wages would be poor consolation to him. They would be wholly insufficient to sustain him during the period of unemployment upon his discharge. The provision for damages for wrongful termination of service was adequate at a time when an employee could without difficulty find other employment within the period of reasonable notice for which damages were given to him. But in conditions prevailing in our country, damages are a poor substitute for reinstatement : they fall far short of the redress which the situation requires. To deny reinstatement to an employee by refusing specific performance in such a case would be to throw him to the mercy of the employer : it would enshrine the power of wealth by recognising the right of the employer to fire an employee by paying him damages which the employer can afford to throw away but which would be no recompense to the employee. It is, therefore, necessary and I venture to suggest, quite possible, within the limits of the doctrine that a contract of personal service cannot be specifically enforced, to take the view that in case of employment under a statutory body or public authority where there is ordinarily no element of personal relationship, the employee may refuse to accept the repudiation of the contract of employment by the statutory body or public authority and seek reinstatement on the basis that the repudiation is ineffective and the contract is continuing. That is in effect what happened in the case of McClelland v. Northern Ireland General Health Service Board [(1957) 1 WLR 594 : (1957) 2 All ER 129] . The plaintiff's contract in this case was really one of master and servant, the only special condition being that her post had been advertised as "permanent and pensionable" and it provided specific reasons, such as gross misconduct and inefficiency, for which she might be dismissed. The defendant Board introduced a rule after her appointment that women employees must resign on marriage and since the plaintiff got married, the respondent terminated her service by giving what they thought was a reasonable notice. The Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 30 of 67 plaintiff contended that the defendant Board was not entitled to terminate her service and claimed a declaration that the purported termination was null and void and she continued in service. The House of Lords held that the contract was exhaustive as regards the reasons for which the defendant Board could terminate the service of the plaintiff and since none of those reasons admittedly existed, the termination of service of the petitioner by the defendant Board was nullity and the plaintiff continued in service of the defendant Board. This was a case of a pure contract of master and servant and yet the House of Lords held that the termination of employment of the plaintiff by the defendant Board which was not accepted by the plaintiff was ineffective and the plaintiff was entitled to a declaration that she continued in service. It should thus be possible to hold that even if a statutory body or public authority terminates the service of an employee in breach of a contractual obligation, the employee could disregard the termination as ineffective and claim a declaration that his service is continuing. But this would be a somewhat novel and unorthodox ground which has not been recognised by any decision of this Court so far and moreover I do not think that, on facts, this is a proper case in which it would really be applicable and hence I do not propose to finally pronounce upon it."(Emphasis mine)
13. I further find support from following observations made by Hon'ble Delhi High Court in GE Capital Transportation and Financial Services Ltd Vs Tarun Bhargava 2012 (190) DLT 185:
"5. With regard to issue No. 1 as to the maintainability of the suit, the trial Court held the suit to be maintainable. The trial Court has referred to various judgments of the Supreme Court to hold that there can be a specific performance of a contract for personal service.
6. In my opinion, the trial court has clearly misdirected itself inasmuch as wherever parties are strictly governed by contractual rights and obligations i.e. the employment is purely a contractual one, i.e. not being under the Government or "State" under Article Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 31 of 67 12 of the Constitution of India, and also not of an employee covered under the Industrial Disputes Act, 1947 the contractual employment can always be terminated in terms of the contract. Also, even assuming the termination is not as per the contract, at best the entitlement will be to claim damages which naturally flow out of the breach i.e. of the illegal termination of contract."(Emphasis mine)
14. Similar view was taken by Hon'ble Delhi High Court in Satya Narain Garg(through his legal heirs) VS DCM Ltd and others 2012 (127) DRJ 216. Following observations of Hon'ble Delhi High Court are relevant in this regard:
"7. Merely because two views are possible, this Court will not interfere with the conclusion arrived at by the Trial Court, unless the conclusion is illegal or perverse or causes grave injustice. In case of private employment, the employers are fully justified in taking steps for termination of services, if it finds that the employee is not upto the mark. Principles applicable in public law domain do not apply with respect to employees in private employment. Employment in private sector is governed by the terms and conditions of employment, and unless the termination is shown to be violation of the terms and conditions of employment, it cannot be said that the termination is illegal. In the present case, in my opinion, since there was no fixed period of employment so far as the deceased plaintiff is concerned, the deceased plaintiff could have been terminated from services even by a simplicitor notice, assuming even if the services of the Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 32 of 67 deceased plaintiff were upto the mark. Further, even if there is illegal termination of services, it is not possible to grant damages as claimed inasmuch as the principle of mitigation of damages squarely applies. As per this principle of mitigation of damages enshrined in Section 73 of the Contract Act, 1872 even if an employee is illegally terminated from services, he cannot sit at home and he must take sufficient steps to procure alternative employment. The law in this regard is contained in the judgment of the Supreme Court reported as S.S. Shetty v. Bharat Nidhi Ltd., AIR 1958 SC 12. Paras 12 and 13 of this judgment are relevant, and the same read as under:
12. 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 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 wagesa 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 Edition, Vol (2), p. 559 para. 1040).
13. If the contract of employment is for a specific term, the servant would in that event be entitled to damages the amount of which would be measured prima facie and subject to the rule of mitigation in the salary of which the master had deprived him. (Vide Collier v. Sunday Referee Publishing Co. Ltd., 1940-4 ALL. E.R. 234 at p. 237(A). The servant would then be entitled to the whole of the salary, benefits, etc., which he would have earned had he continued in the employ of the master for the full term of Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 33 of 67 the contract, subject of course to mitigation of damages by way of seeking alternative employment."(Emphasis mine) Conclusions arrived at by the Court were, thereafter, summarized in para No. 11 of the Judgment in following words:
"11.Thus the following conclusions emerge:
(i) The services of the plaintiff were terminated as in spite of counselling and notice his performance did not improve.
(ii) In private employment, in fact there need not be any valid reason for termination and where there is no fixed period of employment there can be termination simplicitor. Public law principles do not apply to private employment.
(iii) If there is violation of the terms of employment while terminating employment and thus termination is illegal, the employee is only entitled to reasonable damages by applying the principle of mitigation of damages. The plaintiff, assuming his services were illegally terminated, failed to show steps taken to obtain alternative employment and hence was rightly held disentitled to damages."(Emphasis mine)
1. In my considered opinion, the judgment of Hon'ble Supreme Court of India in Union of India Vs Dina Nath Shantaram and Ors relied upon by the plaintiff in support of his submission that proof of actual service of termination letter by the defendant upon the plaintiff is necessary before the termination can be said to have taken effect, does not assist the case of the plaintiff in as much as facts of the aforesaid case Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 34 of 67 were entirely different from the facts of present case. In the aforesaid case, the respondent was a government employee and the applicable service rules contemplated a departmental enquiry before termination of an employee. The enquiry was conducted in the case and the charge sheet was proved to have been dispatched by the employer to the employee through registered post, however, actual service of charge sheet upon the respondent could not have been proved by the petitioner, in the absence of which the initial departmental proceedings were held to be bad by Hon'ble Supreme Court of India. In my considered opinion, observations made by Hon'ble Supreme Court of India in the aforesaid case do not imply that the actual service of termination letter for terminating the services of a private employee is mandatory and what has been laid down in the aforesaid case is that where the service rules contemplate a departmental enquiry, actual service of charge sheet upon the employee, before a decision is taken by the competent authority Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 35 of 67 to remove an employee, is mandatory and mere dispatch of the charge sheet by post will not serve the purpose. In fact the Hon'ble Supreme Court itself has observed that the principle regrading proof of actual service of charge sheet shall not apply to service of termination letter and in case of termination letter mere dispatch of the termination letter by post will be sufficient for termination to take effect. Following observations of Hon'ble Supreme Court in the aforesaid judgment are worth quoting in this regard:
"5.Lastly, in order to save the lost battle, a novel argument was raised by the learned counsel for the appellant. He contended that since the chargesheet as also the showcause notice, at different stages of the disciplinary proceedings, were dispatched and had been sent out of the office so that no control to recall it was retained by the Department, the same should be treated to have been served on the respondent. It is contended that it is the communication of the chargesheet and the showcause notice which is material and not its actual service upon the delinquent. For this proposition, reliance had been placed on the decision of this Court in State of Punjab v. Balbir Singh [(1976) 3 SCC 242 : 1976 SCC (L&S) 411 : AIR 1977 SC 629].
6. This decision has been misread, misunderstood and is Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 36 of 67 now being misapplied by the counsel for the appellants in the instant case.
7. As would appear from the perusal of that decision, the law with regard to "communication" and not "actual service" was laid down in the context of the order by which services were terminated. It was based on a consideration of the earlier decisions in State of Punjab v. Khemi Ram [(1969) 3 SCC 28 : AIR 1970 SC 214] , Bachhittar Singh v. State of Punjab [AIR 1963 SC 395 :
1962 Supp (3) SCR 713] , State of Punjab v. Amar Singh Harika [AIR 1966 SC 1313 : (1966) 2 LLJ 188] and S. Partap Singh v. State of Punjab [AIR 1964 SC 72 : (1964) 4 SCR 733 : (1966) 1 LLJ 458] . The following passage was quoted from S. Partap Singh [AIR 1964 SC 72 : (1964) 4 SCR 733 : (1966) 1 LLJ 458] judgment:
"It will be seen that in all the decisions cited before us it was the communication of the impugned order which was held to be essential and not its actual receipt by the officer concerned and such communication was held to be necessary because till the order is issued and actually sent out to the person concerned the authority making such order would be in a position to change its mind and modify it if it thought fit. But once such an order is sent out, it goes out of the control of such an authority, and therefore, there would be no chance whatsoever of its changing its mind or modifying it. In our view, once an order is issued and it is sent out to the government servant concerned, it must be held to have been communicated to him, no matter when he actually received it."
8. It was in this background that in cases where services are terminated or a person is dismissed from service, communication of the order and not its actual service was held to be sufficient. But this principle cannot be invoked in the instant case.
9. Where the services are terminated, the status of the delinquent as a government servant comes to an end and nothing further remains to be done in the matter. But if the order is passed and merely kept in the file, it would not be treated to be an order terminating services nor shall the Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 37 of 67 said order be deemed to have been communicated.
10. Where the disciplinary proceedings are intended to be initiated by issuing a chargesheet, its actual service is essential as the person to whom the chargesheet is issued is required to submit his reply and, thereafter, to participate in the disciplinary proceedings. So also, when the showcause notice is issued, the employee is called upon to submit his reply to the action proposed to be taken against him. Since in both the situations, the employee is given an opportunity to submit his reply, the theory of "communication" cannot be invoked and "actual service" must be proved and established. It has already been found that neither the chargesheet nor the showcause notice were ever served upon the original respondent, Dinanath Shantaram Karekar. Consequently, the entire proceedings were vitiated."
2. In view of the aforesaid observations, it is clear that in case of a termination letter, only communication and not the actual service which is required to be proved and communication can be proved by adducing evidence as to dispatch of termination order through registered post so as to take the same out of control of the employer. In the case in hand, relationship of plaintiff and defendant is governed by employment contract dated 01.05.2006 as modified by letter dated 01.04.2011 and Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 38 of 67 there are no service rules contemplating departmental enquiry. Even otherwise, as has already been observed, defendant has not only been able to prove the communication of letter dated 08.08.2011 but also the actual service of the same upon the plaintiff on 09.08.2011 by way of preponderance of probabilities.
3. In view of authoritative pronouncement of Full Bench of Hon'ble Supreme Court in Vaish Degree Collage case (supra) and subsequent judgments of Hon'ble Supreme Court and of Hon'ble Delhi High Court quoted herein above, it is well settled legal position that contract of employment entered into between two private parties can always be terminated by employer as per terms and conditions of the contract and when the contract of employment is not for a specified period, the same can be terminated by serving of notice of a reasonable period. In the case in hand, a bare perusal of the appointment letters Ex. PW1/A and Ex. PW1/B dated 01.05.2006 and dated Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 39 of 67 01.04.2011 respectively shows that contract of employment of the plaintiff with the defendant company was not for any specified period and no security of tenure of the plaintiff was assured by the defendant company. In fact, a bare perusal of appointment letter dated 01.05.2006 Ex PW1/A shows that as per clause3 of the letter, the employment of the plaintiff could have been terminated by the defendant by giving 24 hours notice, whereas, in case the company wishes to terminate the contract after confirmation, the defendant company would have been free to do the same by giving one month's notice in writing or one month's salary in lieu of the same. The relevant clause in Ex. PW1/A is reproduced hereinbelow:
"3. You will be on probation upto 31st October, 2006. 24 hours notice would be required for termination of service from either side during the probation period. However, in case you wish to leave our employment after confirmation, you will be required to give us 1 month notice in writing or 1 month salary in lieu of such notice. Similarly if we wish to terminate your services for any reason whatsoever, we will be free to do so by giving you 1 month notice, in writing or I month salary in lieu of such notice."Civil Suit No.800/11
Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 40 of 67
4. Subsequently, vide letter dated dated 01.04.2011 Ex. PW1/B, notice period for termination of contract was enhanced to two months while all other terms and conditions remained the same. Relevant clause of letter Ex. PW1/B dated 01.04.2011 reads as follows:
"You will be designated as "Sales Head (North Region)"
Your notice period will be 2 months.
Your other terms of employment remain as per your appointment letter or as changed in the Teckinfo Handbook."
5. In none of the aforesaid letters, there was any requirement for the defendant to give any reasons for termination of employment of the plaintiff. It has been contended by plaintiff that use of words "any reason whatsoever" in clause 3 of appointment letter dated 01.05.2006 itself implies that it was incumbent upon the defendant to give valid reasons for termination of services of the plaintiff. He has further relied upon separation clause contained in Teckinfo handbook dated Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 41 of 67 15.04.2011 (Ex. PW1/C), which according to him, becomes part of contract between the parties in terms of appointment letter Ex. PW1/B, to contend that in terms of the aforesaid clause the contract of employment of the plaintiff was indeterminable but for imperative reasons necessitating his separation from the company. The aforesaid clause reads as follows:
"SEPARATION Separation Policy As a matter of policy, Teckinfo will try to prevent situations where staff separation is necessitated. However, there may be imperative reasons on account of which employment separation either on the part of employee or from the part of the company becomes necessary.
However, while taking care not to inconvenience the staff member as far as possible, the company will ensure that during the process of separation, the work of the organization is not dislocated.
Notice Period The notice period for separation will be as per terms of your appointment and the employees are expected to work during the notice period."Civil Suit No.800/11
Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 42 of 67
6. I do not find any force in the submission made on behalf of plaintiff that the aforesaid clause in teckinfo handbook renders the contract of employment between the parties indeterminable in the absence of any imperative reasons and it was incumbent upon the defendant to give those imperative reasons in the alleged termination letter so as to constitute a valid termination as per contract. In my considered opinion, in the aforesaid clause the company has merely declared its policy that the management will strive for creation of an ideal working condition wherein the incidents of staff separation can be minimized. The aforesaid clause by no stretch of imagination can be said to have the effect of modifying the condition contained in clause 3 of the appointment letter Ex. PW1/A in such a manner so as to make it obligatory on the part of defendant to give imperative reasons before termination of contract, which otherwise is determinable by serving two Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 43 of 67 months notice or by paying two month's salary in lieu thereof and that too for any reasons whatsoever. Nor can the use of words "for any reasons whatsoever" in clause 3 of appointment letter Ex. PW1/A, in my considered opinion, implies such an obligation on the part of defendant company. In fact the aforesaid words suggest that both plaintiff and defendant were free to terminate the contract just by serving two months notice or by paying two months salary in lieu thereof, without giving any reason, solely as per their wish. It has been held in the judgments quoted herein above that a private contract of service is governed only by terms and conditions contained in the contract and the requirement of giving reasons cannot be implied by applying public law principles to the contract between private parties.
7. In the present case though in the termination letter dated 08.08.2011, it was stated that the services of the plaintiff were being terminated by the defendant with immediate effect "due Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 44 of 67 to his continued absence from work without any intimation", however, the defendant has failed to prove the continued absence of the plaintiff from the services during his evidence. Be that as it may, in my considered opinion, the same would not render the termination void. No doubt, the defendant has failed to serve two months notice upon the plaintiff before termination of his services. However, in my considered opinion, the plaintiff can at best claim damages equivalent to two month's salary in lieu of aforesaid breach of contract by the defendant and same would not entitle to the plaintiff to seek declaration as to subsistence of contract of employment. In view of aforesaid discussions, issue no.1 is decided against the plaintiff.
ISSUE NO.2.: Whether the employment contract of the plaintiff has been validly terminated by the defendant company by serving the letter dated 08.08.2011 upon the plaintiff? OPD.
8. Onus to prove the aforesaid issue was also upon the defendant.
It has already been observed herein above that the defendant has Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 45 of 67 terminated the contract of employment of the plaintiff by way of letter dated 08.08.2011. No doubt the aforesaid termination by the defendant is in violation of terms and conditions of the employment contract in as much as the plaintiff has neither been given two months notice before termination nor has he been given two months' salary in lieu of such notice, however, in view of authoritative pronouncements of Hon'ble Supreme Court in Vaish Degree College case(supra) and of Hon'ble Delhi High Court in GE capital Transportation case and Sataya Narain Garg's case (supra) , even the aforesaid wrongful termination in breach of terms and conditions of contract, effectively ends the jural relationship of employer and employee between the parties, though the plaintiff will be entitled to damages in his favour on account of such wrongful termination. Issue no.2 is accordingly decided in favour of defendant.
ISSUE NO.3.: Whether as per the settlement/ Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 46 of 67 agreement between the parties the effective date of termination of contract of employment by the defendant company is 17.08.2011 instead of 08.08.2011? OPD.
9. Onus to prove the aforesaid issue was also upon the defendant.
In my considered opinion, though the defendant has been able to prove the service of letter dated 17.08.2011, written by its director to SHO PS R.K.Puram, upon the plaintiff, however, the defendant has failed to prove the alleged settlement/agreement between the parties to treat the effective date of termination of plaintiff as 17.08.2011 instead of 08.08.2011. It has been argued by the plaintiff that even if it is assumed for the sake of arguments that there was any such agreement/settlement between the parties, the same would be void for want of consideration. I find force in the aforesaid submission of the plaintiff. Thus the issue is decided against the defendant.
ISSUE NO.4.: Whether the plaintiff has been forcibly restrained by the defendant by applying police Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 47 of 67 pressure from continuing his service with effect from 17.08.2011? OPP.
10.Onus to prove the aforesaid issue was upon the plaintiff.
However, in my considered opinion, plaintiff has failed to discharge the aforesaid onus. In fact, it was admitted by plaintiff during his cross examination dated 28.09.2015 that the police officials at PS R K Puram have not pressurized him not to go to the defendant's office. Besides, according to him, he has not made any complaint against the SHO PS R K Puram for any pressure extorted by him upon the plaintiff for stopping him from discharge of his duty in defendant's office. Issue is accordingly decided against the plaintiff.
ISSUE NO.5.: Whether the suit of the plaintiff for declaration as to subsistence of his contract of employment is not maintainable in view of law laid down by Hon'ble Supreme Court? OPD.
11. Onus to prove the aforesaid issue was upon the defendant. It is Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 48 of 67 submitted by counsel for defendant that defendant has been able to discharge the aforesaid onus in as much as it has been held by full bench of Hon'ble Supreme Court of India in Executive Committee of Vaish Degree College Samiti and others Vs Laxmi Narain & others (1976) 2 SCC 58 that in a contract of personal service, the court normally would not give a declaration that the contract subsists and employee even after having been removed from service can be deemed to be in service against will and consent of the employer and according to him, present case does not fall in any of the recognised exceptions narrated by Hon'ble Supreme Court of India in the aforesaid judgment.
12. On the other hand, it is submitted by the plaintiff that since the contract has been sought to be wrongfully terminated by the defendant purportedly on account of continued absence of plaintiff from duty without intimation, holding of an enquiry by the defendant before termination was absolutely essential and Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 49 of 67 in the absence of any such enquiry, the suit of the plaintiff for declaration of contract as still subsisting is maintainable. He has relied upon the judgment of Full bench of Hon'ble Supreme Court in Union of India & Ors. v. Mohd. Ramzan Khan (1991)1 SCC 588 wherein it was held that in case an employee is charged for misconduct and an enquiry officer has been appointed who upon conclusion of enquiry has submitted his report to the Disciplinary authority holding the delinquent officer guilty of charges and has recommend a punishment for the charges, supply of report of enquiry officer to the delinquent employee is must and failure of supply of report would be in violation of principles of natural justice rendering the final order passed by the disciplinary authority as null and void. According to him, Constitution Bench of Hon'ble Supreme Court in Managing Director ECIL, Hydrabad and Ors. v. B. Karunakar and Ors. (1993)4 SCC 727 has extended the aforesaid principles to private employees also. Thus, Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 50 of 67 according to him, since the defendant has failed to comply with the aforesaid procedure laid down by Hon'ble Supreme Court, the plaintiff is entitled to a declaration regarding subsistence of the contract in his favour. He has further relied upon the judgment of Hon'ble Delhi High Court in Chander Muni v. Commissioner of Police 2015 SCConline Del 11404, in support of his submission that the alleged continued absence from duty amounts to misconduct in which case an enquiry before termination is must.
13.I have heard the submissions made on behalf of the parties and have also perused the judgments relied upon by them in support of their submissions. I do not find any force in the submissions made on behalf of the plaintiff that judgment of Hon'ble Delhi High Court in Chander Muni's case (supra) is an authority for the proposition that continued absence from duty without intimation amounts to misconduct in all cases. In my considered opinion, the finding by Hon'ble Delhi High Court in the Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 51 of 67 aforesaid case that the unauthorized absence of the petitioner from duty on 48 occasions particularly in view of the fact that the petitioner was employed in a disciplined force i.e. Delhi Police amounts to misconduct within the meaning of service rules applicable to the officers of Delhi Police, needs to be understood in the facts and circumstances of the aforesaid case wherein the petitioner was charged by the employer with charges of misconduct. In the case in hand, defendant has not charged the plaintiff with the charge of misconduct and the service rules applicable to the officers of Delhi Police are not applicable.
14. Moreover, in Mohd. Ramzan's case (supra) or ECIL's case (supra), it has nowhere been laid down by Hon'ble Supreme Court that whenever there is a charge of misconduct, an enquiry needs to be conducted by the employer. What has been laid down by Hon'ble Supreme Court in the aforesaid case is that whenever the relevant service rules applicable to the employee Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 52 of 67 contemplates an enquiry before imposition of any punishment upon the employee and an enquiry officer other than the disciplinary authority is appointed, who after conclusion of enquiry submits a report to the disciplinary authority holding the employee guilty of any charge, the disciplinary authority is required to supply the report of enquiry officer to the delinquent employee before arriving at any decision, whether the service rules contemplate supply of report of enquiry officer to the employee or not. Though the aforesaid law was laid down by Hon'ble Supreme Court in Mohd. Ramzan Khan's case (Supra) in case of public servants governed by the provisions of Article 311 of the Constitution of India but the Constitution Bench in ECIL's case has extended the same to all employees whether public or private. However, before the requirement as to supply of enquiry report to delinquent employee is attracted in case of private or public sector employees who are not covered under Article 311 of Constitution of India, the Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 53 of 67 following conditions need to be fulfilled:
a) The applicable service rules/terms and conditions of employment contract, must have the provision of holding enquiry; and
b) For holding the enquiry, an enquiry officer other than the disciplinary authority is appointed; and
c) Enquiry officer submits his report to the disciplinary authority holding the delinquent employee guilty of one or the more charges.
If all the aforesaid conditions are satisfied in any case, supply of report of enquiry officer to the delinquent employee is mandatory being the essential requirement of principles of natural justice.
15.In the case in hand, there is no provision of holding of an enquiry by the defendant before termination of contract of employment of the plaintiff in the appointment letter Ex. PW1/A as modified vide letter Ex. PW1/B. Moreover, no Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 54 of 67 enquiry was conducted by the defendant before termination of services of the plaintiff and as such the aforesaid judgments do not support the contention of plaintiff.
16. Plaintiff has relied upon another judgment of Hon'ble Supreme Court in Ashok Kumar Srivastav v. NICL & Ors.(1998)4 SCC 361 in support of his submission that merely because the contract for personal service cannot be specifically enforced in view of provisions of Section 14 of the Specific Relief Act, 1963, the Court cannot refuse the relief of declaration prayed for by the plaintiff in terms of Section 34 of the Specific Relief Act, if the plaintiff has otherwise been able to make out a case in terms of Section 34 of the Specific Relief Act. I have carefully gone through the aforesaid judgment and in my considered opinion, the aforesaid judgment does not assist the case of the plaintiff in as much as in the aforesaid case the respondent was a public sector undertaking and as such the aforesaid case was falling under one of the three exceptions Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 55 of 67 carved out by Hon'ble Supreme Court in Vaish Degree College Case (Supra) to the rule that no declaration ordinarily shall be given by the Court as to subsistence of a contract of personal service.
17. It is next contended by plaintiff that since the plaintiff has not been formally relieved by the defendant, the alleged termination being conditional is not valid. He has relied upon the judgment of Hon'ble Supreme Court in Power Finance Corporation Ltd. v. Pramod Kumar Bhatia (1997)4 SCC 280 in support of his aforesaid contention. In my considered opinion, even the aforesaid judgment does not support the case of plaintiff in as much as the facts of the aforesaid case before the Hon'ble Supreme Court were Diametrically opposite to the facts of the present case. In the case before Hon'ble Supreme Court, the respondent had sought voluntary retirement under the scheme floated by the petitioner and the resignation was accepted by the petitioner by way of a conditional order i.e. subject to clearance Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 56 of 67 of outstanding dues by the respondent. Before the outstanding dues could have been cleared by the respondent, the scheme was withdrawn by the petitioner and as such it was held by Hon'ble Supreme Court that the order accepting resignation being conditional and respondent having failed to fulfill the condition before withdrawal of the scheme, the order had not become effective. The Hon'ble Supreme Court has further observed that it is settled legal position that unless the employee is relieved of the duty, after acceptance of the offer of voluntary retirement or resignation, jural relationship of the employer and employee does not come to an end. In the case in hand, it is not the plaintiff who has submitted his resignation but the defendant has terminated the services of the plaintiff and as such the relieving is implicit in the order of termination with immediate effect.
18. Thus in view of the aforesaid discussions, in my considered opinion, the defendant has been able to prove that suit of the Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 57 of 67 plaintiff for declaration as to subsistence of contract is not maintainable. In fact, even in the judgment of Hon'ble Delhi High Court in Shri Avineshwar Sawhney v. M/s J.K.Industries Ltd. (2008) 152 DLT 712(DB) relied upon by the plaintiff, it was held that if it is found that the termination is not in accordance with the terms and conditions of the contract of employment, the Civil Court is empowered to give a declaration to this effect, however, in that eventuality if the person is not under any protective umbrella insofar as continuity of service is concerned, he would be entitled to damages. It is thus clear that in cases which do not fall under the exceptions carved out in Vaish Degree College case (Supra), the power of the court to give declaration is limited to declaration as to termination being in violation of terms and conditions of contract entitling the employee for damages and no declaration as to subsistence of contract in such cases can be given by the civil Court.
19. Admittedly, the defendant is not a government or state body Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 58 of 67 within the meaning of Article 12 of Constitution of India nor the plaintiff is a public servant within the meaning of Article 311 of Constitution of India nor he is protected under Industrial Law and the defendant is also not a statutory body committing breach of mandatory provisions of any statue. In my considered opinion, the relationship of parties to the present suit is governed by contract of employment dated 01.05.2006 as modified by the subsequent contract dated 01.04.2011. The agreement could have been terminated by any of the parties in terms of the aforesaid contract. No fix tenure was assured by the defendant to the plaintiff in the defendant company. Accordingly, in terms of contract between the parties, services of plaintiff could have been terminated by the defendant by serving two month's notice in writing or by paying salary for two months in lieu of the same. No reasons, in my considered opinion, were required to be given by the defendant for termination of service of plaintiff in terms of contract between Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 59 of 67 the parties. Merely because the defendant has failed to pay salary equivalent to two months in lieu of notice period does not mean that the plaintiff can seek declaration of subsistence of contract and only remedy available to the plaintiff was to seek damages for breach of contract by the plaintiff. Issue is accordingly decided in favour of defendant.
ISSUE NO.6.: Whether the plaintiff is entitled for a decree of declaration as per prayer (a) of the amended plaint? OPP.
20. Onus to prove the aforesaid issue was upon the plaintiff. In view of detailed discussions, held under issue no.1 and issue no. 5 herein above, in my considered opinion, plaintiff is not entitled to a decree of declaration to the effect that there exists subsisting and valid written contract dated 01.05.2006 between the parties which has not terminated or cancelled till date. Issue is accordingly decided against the plaintiff.
ISSUE NO.7: Whether the plaintiff is entitled to the decree of dues and arrears of salaries after 17.08.2011 Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 60 of 67 from the defendant alongwith interest @ 12 % per annum? OPP
21. Onus to prove the aforesaid issue was also upon the plaintiff.
Admittedly, the relief prayed for by the plaintiff in prayer clause (b) of the amended plaint is a relief consequential to the relief of declaration prayed for in prayer clause (a) of the plaint. Since plaintiff is held not entitled to relief of declaration as per prayer clause (a) of the plaint, in my considered opinion, he is also not entitled to a decree in terms of prayer (b) of amended plaint.
22. However, as has already been observed hereinabove since the contract has been wrongfully terminated by the defendant in breach of terms and conditions of contract, the plaintiff is entitled to damages on account of such wrongful termination/breach of the contract. Though the plaintiff has claimed damages in prayer clause (d) of the amended plaint, however, he has failed to quantify the same. Plaintiff has filed Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 61 of 67 several judgments to enlighten the Court about the guiding principles to be followed by the Court in determination of amount of damages to be awarded in his favour. The aforesaid judgments are:
I) Shri Avineshwar Sawhney v. M/s J.K.Industries Ltd. (2008) 152 DLT 712(DB)
ii)DCM Limited & Anr. v. Mahabir Singh Rana (2010)114 DRJ 475
iii)Beer Bikram Kumar Singh v. DatexOhmeda (India) Pvt.
Ltd. 2014 SCC online Cal 6650
iv) S.M. Murray v. Fenner (India) Ltd. AIR 1986 Delhi 427
v) Shri Dinesh Chadha v. M/s Hotel Queen Road Pvt. Ltd.ILR (2014) 3 Del 1954
23. I have gone through the aforesaid judgments carefully. In DCM Ltd.'s case, Avineshwar Sawhney's case and S.M. Murray's case (supra) the contract was for a definite period and as such the damages were awarded by the Hon'ble Courts Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 62 of 67 for whole of the unexpired period of the contract considering the peculiar facts and circumstances of the cases. In the case in hand, the contract was for indefinite period determinable by serving two months' notice or by paying two months' salary in lieu of notice. Though in the case of Beer Bikram Singh (Supra), the contract seems to be of an indefinite period, however, no notice period was given in the contract and as such even the aforesaid judgment is also not of much assistance in determining the quantum of damages in the present case. I find the facts of the case in Shri Dinesh Chadha (supra) somewhat similar to the facts of case in hand. In the aforesaid case before Hon'ble Delhi High Court, the contract of employment was terminable by serving a 3 months notice, however, the employer abruptly asked the employee on 02.01.2009 to leave the services forthwith. Under the aforesaid circumstances, damages equal to 3 months salary were awarded by Hon'ble Delhi High Court in favour of the plaintiff.
Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 63 of 67
24. In the case in hand, as per the terms and conditions of the contract between the parties the contract was determinable by either of the parties by serving two months notice or by paying salary in lieu of such notice. In my considered opinion, the aforesaid stipulation is a genuine preestimate by the parties of reasonable compensation and the said stipulation cannot be said to be a stipulation by way of penalty. The plaintiff has failed to plead or prove any damages over and above the aforesaid stipulation. The details of salary payable to plaintiff as per the annexure to appointment letter Ex. PW1/B has not been disputed by the defendant which are as follows:
Basic..................................................................25000/ HRA...................................................................12500/ Conveyance allowance....................................... 800/ Personal Allowance............................................40000/ EPF(Co. Contribution).........................................780/ Telephone Reimbursement.....................................1850/ Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 64 of 67 Official local travel Conveyance Reimbursement..44500/ Medical reimbursement...........................................1250/ Gratuity...................................................................1202/ Personal Group Insurance Accident .......................20/ EGI (Group Insurance).............................................104/ Entertainment Reimbursement..................................5000/ Vehicle Maintenance.................................................1200/ Driver's Salary...........................................................600/ Parking......................................................................700/
25.As per the aforesaid details, monthly salary of the plaintiff alongwith all perquisites exclusive of reimbursements comes out to be Rs. 82906/. In my considered opinion, while calculating the damages on the basis of monthly salary, the reimbursements need to be excluded as the reimbursements by their very nature implies that the plaintiff must have spent the same before he can claim the same from the defendant. A perusal of judgment of Hon'ble Delhi High Court in Shri Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 65 of 67 Dinesh Chadha's case (Supra) shows that the Hon'ble Court in the said case had also awarded arrears of some of the dues of the plaintiff, however, in the case in hand the plaintiff has admittedly filed another suit for recovery of arrears of salary and allowance upto 17.08.2011.Thus the plaintiff is held entitled to damages equal to two months' salary @ Rs. 82906/ which comes out to be Rs. 1,65,812/. Since the aforesaid amount has been unreasonably withheld by the defendant for a considerable period of time, the plaintiff is also held entitled to pendente lite interest @ 9% per annum from the date of fling of the suit till the date of decree and further interest @6% per annum from the date of decree till the date of realization of the aforesaid amount.
ISSUE NO.8: Relief.
26. In view of my findings on issue nos.1 to 7 hererin above suit of the plaintiff for declaration in terms of prayer (a) and consequential relief in terms of prayer (b) and (c) of the Civil Suit No.800/11 Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd Judgment dated 08.01.2016 Page no. 66 of 67 amended plaint is hereby dismissed, whereas defendant is directed to pay damages to the extent of Rs. 1,65,812/ to the plaintiff on account of wrongful termination of contract of employment of plaintiff alongwith pendente lite interest @ 9% p.a. and future interest @6% p.a. and costs of the suit as per rules. Decree sheet shall be prepared only after payment of appropriate court fee by the plaintiff on the amount of damages awarded in his favour.
Announced in the open court on this 8th day of January, 2016 This judgment consists of SixtySeven signed pages.
(Arun Kumar Garg)
Civil Judge(SW)/Dwarka Courts
New Delhi/08.01.2016(mk)
Civil Suit No.800/11
Rafat Khan Vs M/s Techinfo Solutions Pvt Ltd
Judgment dated 08.01.2016 Page no. 67 of 67