Delhi District Court
Dhiraj Negi vs G4S Security Services (India) Pvt. Ltd on 4 December, 2014
IN THE COURT OF MS. SUJATA KOHLI
ADDITIONAL DISTRICT JUDGE (WEST)
TIS HAZARI : DELHI
C.S. No.:205/14
Dhiraj Negi
S/o Sh. Ganga Singh Negi
R/o C63, Kidwai Nagar East,
New Delhi.
.....Plaintiff
VERSUS
G4S Security Services (India) Pvt. Ltd.,
16, Community Centre, C Block, Janakpuri,
New Delhi58.
Service to be affected through
Senior Vice President, HR/Regional Managing Director/
Other Authorized Representative
Also at:
G4S Security Services (India) Pvt. Ltd.,
82A, Sector18, Gurgaon, Haryana122016.
....Defendant
Date of filing the suit : 13.09.2012
Date of reserving the Judgment/Order : 26.11.2014
Date of passing the Judgment/Order : 04.12.2014
Pages 1 to 28 Dhiraj Negi Vs. G4S Security (India) Pvt. Ltd.
JUDGEMENT:
Plaintiff has filed a suit for declaration, mandatory injunction as well as recovery of arrears of salary i.e. to declare the act of defendant company in not allowing the plaintiff to continue his service on his initial post, as illegal, secondly a mandatory injunction to direct the defendant to act as per the terms and conditions of the contract of appointment dated 18.05.96 executed between plaintiff and defendant, thirdly to pay Rs. 4,50,450/ towards arrears of his salary and increments in the retrospect for the period August 2011 as per the rules. Besides he also prays for costs of the litigation. 2 As per the averments, plaintiff claims to have been employed with the defendant company for the past 16 years. The defendant company is stated to have issued a letter of intent dated 25.04.896 informing the plaintiff about his selection in the defendant company. Plaintiff duly accepted the offer and joined the service on 18.05.96 on the post of Assistant Administrative Manager. He was allotted an employee code no. 97081. An employment contract was executed between the parties dated 18.05.96. 3 In the contract of employment, reference has been made to a clause that any employee could only be terminated subject to either side giving one month's notice or payment of salary in lieu thereof, in the first six months and two months' notice thereafter and further that in the year 2005, the notice period was extended to three months. Plaintiff claims that after completion of 6 months of successful probation, he became an permanent employee of the defendant company.
Pages 2 to 28 Dhiraj Negi Vs. G4S Security (India) Pvt. Ltd. 4 Plaintiff further claims that on account of his good work, he was even promoted several times. Plaintiff claims to have done the work assigned to him to the best of his efficiency and the defendant company was completely satisfied with his conduct and work.
5 That in the year 2010, the plaintiff on account of exemplary performance in the service, was offered an "inter company transfer" to the post of General Manager, HR and Admn. at Jordan vide a letter of intent dated 07.05.2010. Plaintiff was offered a tenure of 2 years and further extension subject to performance of the plaintiff. 6 Further stated that the working conditions of the factory situated in Jordan were not satisfactory, due to some internal controversies and tussle between the management and the staff and the same were in the knowledge of defendant company. Plaintiff also accepted the opportunity as a challenge and joined the service at Jordan. 7 Further claimed that vide letter dated 18.05.2010, relieved the plaintiff from India office to join the office of the defendant company at Jordan and that in the said letter, it was clearly mentioned that same was an"inter company transfer" and the service benefits and continuity of service as accrued till 18.05.2010 would remain intact with the defendant company.
8 Plaintiff claims that his work was recognized by the defendant and his superior officers and he received many appreciation letters. It is claimed that hard work of the plaintiff was bringing laurels to the defendant company. Pages 3 to 28 Dhiraj Negi Vs. G4S Security (India) Pvt. Ltd. 9 However, things went wrong in April 2011 when due to some sudden family problem, it became impossible for the plaintiff to continue his work in Jordan and plaintiff accordingly, requested the defendant company to relieve him from the job assigned to him at Jordan.
10 Further stated that defendant after considering the genuine request of the plaintiff, relieved him form Jordan vide approval dated 28.06.2011. 11 Further alleged that in the month of August 2011, plaintiff reported to the defendant company and sought confirmation for rejoining with them at his original post. But however, much to his shock, the defendant company informed him that there was no vacancy available at the plaintiff's level and whenever there is any vacancy they would contact him.
The defendant company is alleged to have demonstrated a highly casual attitude towards the plaintiff.
12 Plaintiff immediately lodged a protest with the management, and requested them to allow him to recommence his active services at his original post which he was holding prior to transfer. But he got the same reply from the defendant company. The company's act of not allowing the plaintiff to join the services at the post from where he had been sent on deputation/transfer, was arbitrary and vincible as alleged. 13 The plaintiff has also mentioned it as a relevant fact that the many new recruitments have also taken place in the company after August 2011 and several other Pages 4 to 28 Dhiraj Negi Vs. G4S Security (India) Pvt. Ltd. employees have been retained by the defendant company even after their retirement and thus, the defendant's act in disallowing the plaintiff to rejoin the services is stated to be unjustified.
14 Plaintiff claims to be without any salary and is stated to be suffering extreme hardship and depravity on account of the alleged illegal act on part of the defendant company. Plaintiff further equates this act to an illegal termination of services and that too without any notice.
15 Plaintiff is stated to have submitted various representations against the unjust act of the defendant but to no avail and there was no response. Ultimately, he even issued a legal notice dated 14.07.2012 calling upon the defendant company to allow him to continue with the services on his post but to no effect. As a last resort, plaintiff filed the present suit.
16 Defendant company in its WS has raised certain preliminary objections, mainly being that suit is bad for misjoinder of parties, in as much as, the defendant no.1 is a company incorporated under the Companies Act, 1956 and defendant no.2 is only an employee of the defendant no.1 and he cannot be sued in that capacity in this suit. But the main objection being strongly pressed throughout is that the plaintiff does not have any right/title or interest or any lien on his previous post after having been "transferred to the Jordan company", where he worked for over a year and resigned therefrom and took his full and final settlement including all his dues "as detailed herein above" . Pages 5 to 28 Dhiraj Negi Vs. G4S Security (India) Pvt. Ltd. (However, no such details have been mentioned in the said WS in the preceding paras.) 17 The version of the defendant is that though plaintiff had admittedly joined the defendant company in the year 1996, thereafter he resigned from the services of the defendant company, and had sought to be relieved from the services of the defendant company vide his mail dated 13.05.2010, and in fact he had got himself relieved from their services in the year 2010 itself to join M/s. International British Garments Ltd. (IBGL) at Jordan, and in view of this, it cannot be said that plaintiff had been in continuous services of the defendant company at all.
18 The stand taken by the defendant company is that the contract of services came to an end and was no more applicable between the parties when their relationship of employer and employee came to an end on 31.05.2010 when the plaintiff sought to be relieved from services of the defendant company and when he joined the services of M/s. IBGL.
19 It is further stated that the contract entered into between the plaintiff and M/s. IBGL was for an unlimited period and automatically renewable unless terminated by the parties. Thereafter, the defendant company has gone on to refer to various documents/correspondence/mail by way of evidence and that shall be dealt with at the appropriate stage in this judgment. For the purpose of pleadings, the stand of the defendant has been already discussed and further also the defendant has entered into an argumentative field citing legal arguments in its pleadings and they need not be referred Pages 6 to 28 Dhiraj Negi Vs. G4S Security (India) Pvt. Ltd. to at this stage at all.
20 In other words, the main question which arose in this case, is mainly as to whether plaintiff's joining of services with M/s. IBGL was by way of "Inter Company Transfer" or whether it was a fresh joining of service with another company altogether. Whether there was any continuity of service left or whether the plaintiff had left the services of the defendant company of his own in order to join M/s. IBGL.
Plaintiff in his replication denying the stand of the defendant, he has reiterated his version as correct.
21 On the basis of the pleading, following issues were framed by Ld. Predecessor on 06.04.2013.
1. Whether the suit of the plaintiff is not maintainable as the plaintiff has entered into a full and final settlement with the defendant company and no dues were left against the defendant company?OPD
2. Whether the suit of the plaintiff is not maintainable being barred u/S 41(e) of Specific Relief Act?OPD
3. Whether plaintiff is entitled for the relief of declaration and mandatory injunction, as prayed for?OPP
4. Whether the plaintiff is entitled for the decree of Rs.4,50,450/ and increments pending for year 2010 and 2011?OPP
5. Relief.
Pages 7 to 28 Dhiraj Negi Vs. G4S Security (India) Pvt. Ltd. 22 During the course of evidence, plaintiff examined himself as PW1 on his affidavit Ex.PW1/A and besides he has relied upon six documents described in his affidavit as Ex.PW1/1 to Ex.PW1/6. But out of which, document Ex.PW1/5 was found not admissible in evidence and was deexhibited and only marked A. The said documents being as under: Ex.PW1/1 Letter of Intent dated 25.04.1996 issued by the defendant company to the plaintiff.
Ex.PW1/2 - Contract of employment between the plaintiff and defendant dated 18.05.1996.
Ex.PW1/3 - Letter of Intent dated 07.05.2010 issued by the defendant to the plaintiff alongwith its annexures being the terms and conditions of employment in Jordan.
Ex.PW1/4 - Letter with the subject "Inter Company Transfer" dated 18.05.2010 issued by the defendant company to the plaintiff. Ex.PW1/5 - Later on deexhibited and only marked as Mark A, copy of legal notice.
Ex.PW1/6 Colly. The AD card in respect of the legal notice and the two postal receipts (The AD card in original bearing the original stamp of the defendant company. ) 23 Defendant in turn has examined Mr. Sanjeev Kumar Takku as DW1 on his Pages 8 to 28 Dhiraj Negi Vs. G4S Security (India) Pvt. Ltd. affidavit Ex.DW1/A. Besides he has also relied upon documents Ex.DW1/1 to DW1/2. Besides he has also relied upon the documents put to the PW1 during his cross examination which are Ex.PW1/D1 and Ex.PW1/D3. However, since document is described as Ex.DW1/1 was an email extract stated to have been retrieved from the computer, same being not supported by the requisite certificate u/S 65 (b) of Evidence Act regarding the electronic evidence, same was deexhibited and only marked DX1.
Arguments were addressed at length and even written submissions were filed on behalf of both parties.
I proceed to give my issues wise findings as under: ISSUE No.1: "Whether the suit of the plaintiff is not maintainable as the plaintiff has entered into a full and final settlement with the defendant company and no dues were left against the defendant company?OPD"
24 The finding on this issue would depend upon the decision of issue no.3 and accordingly in this entire suit, it is the issue no.3 which is the main issue and around which the entire controversy revolves. Therefore, I proceed to give my findings on issue no.3 prior to other issues.
ISSUE No.3: "Whether plaintiff is entitled for the relief of declaration and mandatory injunction, as prayed for?OPP"
25 The sole question requiring to be decided in this case, if crystallized, boils Pages 9 to 28 Dhiraj Negi Vs. G4S Security (India) Pvt. Ltd. down as to whether joining of service by plaintiff with IBGL was a fresh appointment with IBGL or whether the plaintiff had been sent on deputation by the defendant company itself and as such, he continued to be an employee of the defendant company. Consequently whether when he left the assignment at IBGL, Jordan, whether he was entitled to claim to rejoin his parent cadre or in other words, the original post that he had been holding with the defendant company.
26 The entire arguments have in fact been around this question only and reference has been had to various documents filed by both parties, and ld. counsel for plaintiff has throughout highlighted the documents to show in totality, that the plaintiff had been sent on deputation or on transfer to IBGL at Jordan, by the defendant company only and whereas, ld. counsel for defendant did his best to convince, that when plaintiff joined the IBGL at Jordan, it was a fresh appointment and it was of his own choice and that the defendant company had not sent him by way of transfer. 27 It was throughout the case of the defendant company, that plaintiff had sought to be relieved from the services of the defendant company when he left for Jordan and this was his option. In other words, he had abandoned the services of the defendant company and could not reclaim to be employed with the company when he chose to leave IBGL.
28 However, so much controversy raised does not seem to have been worth it as just one look at the documents filed by the parties makes it crystal clear, in as much as, it Pages 10 to 28 Dhiraj Negi Vs. G4S Security (India) Pvt. Ltd. cannot even be doubted for a minute, it was clearly a case of the plaintiff having been transferred to Jordan to work with IBGL at the instance of the defendant company and that the job of the plaintiff at Jordan was not on his request and it was not a fresh service, 29 Coupled alongwith documents, the oral testimony of witness of the defendant and all the contradictions therein, were sufficient to put the last nail on the coffin over the defence raised by the defendant company throughout. 30 Much of the arguments have been addressed on the term "inter company transfer" used as the title/subject matter of the correspondence between the parties. 31 To refer to the documents first, it is Ex.PW1/1 which is the Letter of Intent dated 25.04.1996 alongwith the appointment with the defendant company, to the plaintiff. Since the appointment to the defendant company is not even in dispute, the document does not require much discussion.
32 However, it is Ex.PW1/2 i.e. the Contract of Employment for staff dated 18.05.1996 which is quite relevant and crucial. Besides laying down the post at which the plaintiff was being appointed and the consolidated salary agreed to be paid to him vide clause 8, this contract lays down that the services of the plaintiff were liable to be transfered from one place to another in the interest of the company's business and further that the refusal of the plaintiff to accept the transfer would amount the gross Pages 11 to 28 Dhiraj Negi Vs. G4S Security (India) Pvt. Ltd. misconduct with the management having the power to take appropriate action. 33 Further relevance of this contract is in respect of the clause 12 which provides that the plaintiff would return to the company, the company's property such as uniform or any other material on 'severance' of his services with the company. 34 Ex.PW1/3 is the main document to be considered, and which makes it absolutely clear that it was the intention of the defendant company to transfer the plaintiff to IBGL at Jordan office. This letter dated 07.05.2010 issued by Mr. Anup Sriviastava, the Managing Director of IBGL, and addressed to the plaintiff though, is on the letter head of IBGL having its corporate office at Gurgaon, and registered office at Janakpuri, is not only bearing the logo of the defendant company as shown at point X2 of the said Ex.PW1/3, but its registered office is bearing the same address as that of the defendant company i.e. C16, Community Centre, Janakpuri, New Delhi. Therefore, hardly any other ingredient would be required to come to a conclusion that defendant company and IBGL are one and the same, and may be IBGL is a just one unit or division of the defendant company.
35 By this letter at the outset, it has a reference to an earlier meeting between the parties that plaintiff and the defendant company on 05.05.2010 and it goes on to state that the defendant company is pleased to offer the plaintiff, the position of General Manager, HR & Admn. in their factory in Jordan, subject to the plaintiff accepting all the terms and conditions as mentioned in the Annexure thereof. Pages 12 to 28 Dhiraj Negi Vs. G4S Security (India) Pvt. Ltd. 36 It was further made clear, in the same letter, that, plaintiff was being sent for a period of two years and after completion of two years, depending upon his satisfactory performance, his tenure could be extended with mutual consent. 37 Further it was also stated that the management i.e. the defendant company reserved the right to cancel the employment/change the terms of the employment at any point of time without assigning any reason whatsoever.
38 It is necessary herein to reproduce the exact wordings as used in the letter dated 07.05.2010 as under: "This has reference to our meeting on 5th May, 2010.
We are pleased to offer you the position of General Manager - HR & Administration in our factory in Jordan subject to your acceptance of terms and conditions as mentioned in the Annexure to this letter.
Initially, you would be sent for a period of two years and after completion of two years based on satisfactory performance, your tenure can be extended with mutual consent.
However, the management reserves the right to cancel the employment/change the terms of employment at any point of time without assigning any reason whatsoever."
39 It is very clear from this letter that the company which has offered the position is the defendant company, and the place where this position has been offered is their factory in Jordan, and the initial tenure is two years which may be extendable. 40 Ex.PW1/4 further strengthens the case of the plaintiff that he was only on a Pages 13 to 28 Dhiraj Negi Vs. G4S Security (India) Pvt. Ltd. transfer/deputation. This letter dated 18.05.2010 gives the subject matter as "inter company transfer" through : RMD. Once again it is necessary to reproduce the words of this letter to highlight the actual position as under: "SUBJECT: INTER COMPANY TRANSFER THROUGH :RMD Dear Mr. Negi, This has reference to your letter dated 18th May 2010 requesting for Inter Company Transfer to Indo British Garments (P) Ltd. wherein you have also attached the LOI dated 7th May 2010 received for the position of General Manager - HR & Administration (copy attached).
Please be advised that the management is pleased to relieve you from G4S Security Services (India) Pvt. Ltd. w.e.f. 31th May 2010 and that your seniority, service benefits and continuity of service benefits as accrued till date of relieving from service will remain intact and provided for."
41 This would then hardly leave any scope for any further interpretation of the intention of the defendant company, at the time of sending the plaintiff to Jordan, that continuity of his service was not being broken, there was to be no break in service, and he was only being relieved from working at one place for another and that his seniority/service benefits and continuity in service would remain intact. In fact in view of this letter by itself as well, there was hardly any scope for the defendant company to have avoided to allow the plaintiff from rejoining the service at the original post. Pages 14 to 28 Dhiraj Negi Vs. G4S Security (India) Pvt. Ltd. 42 Furthermore, during crossexamination of plaintiff/PW1, the defendant itself put a document to him which is Ex.PW1/D1 which was the employment contract for working with IBGL. Though on the face of it, this contract terms IBGL as the employer and the plaintiff as an employee, it clearly states that it is the first party i.e. IBGL who wishes to hire the second party i.e. the plaintiff to work for them and it is the second party the plaintiff who has confirmed the same and then as per the terms and conditions, the second party i.e. the plaintiff has been advised/is expected to follow G4S ethical standard.
43 It further makes it absolutely clear that the defendant company G4S security is the main company with IBGL being only one of its units at Jordan. Otherwise, the IBGL should not have anything to do with G4S ethical standard, and to expect the plaintiff to follow them. The letter head on this letter as well, bears the logo of G4S i.e. the logo of the defendant company. The period of that contract is stated to be unlimited but auto renewable every year unless either party opts not to renew before the completion of visa, besides the other benefits and facilities have been provided there for.
Written arguments were also filed on behalf of the plaintiff. 44 As per the plaintiff, burden of proof was on the defendant to prove that the plaintiff had entered into a separate contract (PW1D1) with the IBGL Jordan, after repudiating his deputation/inter company transfer done by the defendant. No direct or leading question was asked to the plaintiff (PW1) in his crossexamination. A short Pages 15 to 28 Dhiraj Negi Vs. G4S Security (India) Pvt. Ltd. question which was asked by the defendant was whether he had signed the contract (PW D1) with the IBG Jordan which plaintiff answered in affirmative. 45 It is respectfully submitted here that the principle of Section 103 of the Indian Evidence Act is that whenever a party wishes the court to believe and to act upon the existence of a fact, burden lies upon him to prove that fact. It may be pertinent to mention here that if a party wishes the court to believe and to act upon the existence of a fact, burden lies upon him to prove that fact.
46 The general rule is that the burden of proof rests on the party who has the affirmative of the issue, as determined by the pleadings, or where there are no pleadings, by the nature of the investigation; so the party asserting or pleading a fact or issue generally has the burden of proof as to such facts or issue. This rule is founded on the obvious purpose of facilitating justice by serving the convenience of the court. The test of determining which party has the affirmative, and therefore, the burden of establishing a case, is found in the result of an enquiry as to which party would be successful if no evidence at all were given, the burden of cause, on the adverse party. 47 Ld. counsel for plaintiff has also relied upon the following case laws:
1. Ashok Kumar Srivastav Vs. National Insurance Company Limited and Others (1998) 4 SCC 361) : (18. Chapter II contains a fasciculus of rules relating to specific performance of contracts. Section 14 falls within that chapter and it points to contracts which are not specifically enforceable. Powers of the court to grant declaratory reliefs are Pages 16 to 28 Dhiraj Negi Vs. G4S Security (India) Pvt. Ltd.
adnumbrated in Section 34 of the Act which falls under Chapter VI of the Act. It is well to remember that even the wide language contained in Section 34 did not exhaust the powers of the court to grant declaratory reliefs. In Vemareddi Ramaraghava Reddy Vs. Konduru Seshu Reddy and in Supreme General Films Exchange Ltd. Vs. Brijnath Singhji Deo, this court while interpreting the corresponding provision in the preceding enactment of 1877 (Section 42) has observed that:
"Section 42 merely gives statutory recognition to a well recognized type of declaratory relief and subjects it to a limitation, but it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of courts to give declarations of right in appropriate cases falling outside Section 42".
19. The position remains the same under the present Act also. Hence the mere fact that a suit which is not maintainable under S. 14 of the Act is not to persist with its disability of nonadmission to civil courts even outside the countours of Chapters II of the Act. Section 34 is enough to open the corridors of civil courts filed for a variety of declaratory reliefs.)
2. Dr. Prabha Atri Vs. State of Uttar Pradesh and Others (2003) 1 SCC 701 @ 10 : ("We have carefully considered the submissions of the learned counsel appearing on either side, in the light of the materials and principles, noticed supra. This is not a case where it is required to consider as to whether the relinquishment envisaged under the rules and conditions of service is unilateral or bilateral in character but whether the letter dated 09.01.1999 could be treated or held to be a letter of resignation or relinquishment of the office, so as to severe her services once and for all. The letter cannot be construed, in our view, to convey any spontaneous intention to give up or relinquish her office accompanied by any act of relinquishment. To constitute a "resignation", it must be unconditional and Pages 17 to 28 Dhiraj Negi Vs. G4S Security (India) Pvt. Ltd.
with an intention to operate as such. At best, as observed by this court in the decision in P.K. Ramachandra Iyer, it may amount to a threatened offer more on account of exasperation, to resign on account of a feeling of frustration born out of an idea that she was being harassed unnecessarily but not, at any rate, amounting to a resignation, actual and simple....")
3. Ramlal Khurana (dead) by LRs Vs. State of Punjab and Others (1981) 4 SCC @ Para 8: ("The other contention urged for the appellant that he was not confirmed in the Excise Department and unless confirmed, he acquired no lien cannot also be accepted. Lien is not a word of art. It just connotes the right of a civil servant to hold the post substantively to which he is appointed. Generally when a person with a lien against a post is appointed substantively to another post, he acquires lien against the latter post. Then the lien against his previous post automatically disappears. The principle being that no government servant can have simultaneously two liens against two posts in two different cadres. It is a well accepted principle of service jurisprudence." ) 48 Further Ex. DW1/P1, though, it does show an element of request on the part of the plaintiff also to have opted for the transfer at Jordan, but since this document was filed by the defendant, and was heavily relied upon by them, it was showing certain other elements, and i.e. certain handwritten conditions, one of which, was that seniority and continuity of service, was to be retained.
49 It is evident that it is in the light of these assurance or on this condition only that the plaintiff was ready to joint at IBGL, at Jordan, and not otherwise. Since the Pages 18 to 28 Dhiraj Negi Vs. G4S Security (India) Pvt. Ltd. document is that of the defendant, and brought in by them, all its contents, whether typed contents or handwritten contents, have to be read and cannot be ignored. 50 The crossexamination of DW1 Sh. Sanjeev Kumar Takku, who was General Manager (Legal) with the defendant company, further strengthened the stand that plaintiff had been deputed only on transfer to IBGL, at Jordan, and no more, i.e. apart from the fact that this witness could not even produce his Board Resolution or Power of Attorney in his favour to authorize him to even depose on behalf of the defendant company. However, since, he has been crossexamined, his reply would be necessary to throw light on this controversy further.
51 This witness has tried to take a complete UTurn from the contents of his own affidavit, in as much as, he has stated that there is no arrangement called "Inter Company Transfer" and that the company had no policy to transfer its own employee to any other company. He admitted that the caption of the document Ex. DW1/2, did show, it has "InterCompany Transfer" through RMD, but this he tried to explain away by merely saying that it may have been a typographical error. However, in the later part, he again, after seeing another document which was earlier marked and later on exhibited as Ex. DW1/P1, and which has been relied upon by the defendant company itself being an eMail issued by the defendant company, and it was admitted to be correct by DW1 that they were all using the caption as "InterCompany Transfer". 52 He further tried to make it look as if it is the plaintiff who had coined this Pages 19 to 28 Dhiraj Negi Vs. G4S Security (India) Pvt. Ltd. term of his own to suit himself, and it is not the term which was being adopted by the defendant company.
53 He was, however, also confronted with the document Ex. PW1/3 and he admitted that it bears the name of the issuing company as IBGL, at point X1, and that the said letter was also bearing the logo as G4S at point S1. 54 He just tried to explain away, also by merely saying that IBGL Pvt Ltd., has simply used it as a logo, and otherwise, the company has no connection with the defendant company. However, this witness had nothing to say about the registered office of the two companies being shown as one and the same i.e. at 'C16, Community Center, Janak Puri, New Delhi' as being the registered office of defendant company, and also that of IBGL, as shown in Ex. PW1/3. This witness kept reiterating in his oral testimony during the crossexamination that there is no "InterCompany Transfer", but he was confronted with contents of para5 of his affidavit Ex. DW1/A, wherein he has clearly stated that plaintiff does not have any right, title or interest or any lien of his previous post after having "transferred" to the Jordan company. 55 Once again, in para13 of his affidavit, it has been stated therein that plaintiff had requested the defendant to transfer his services to IBGL, which was done by the defendant company, and after being transferred to the new company, defendant could not claim any lien............
56 By the constant use of the term "transfer" by the own witness of the Pages 20 to 28 Dhiraj Negi Vs. G4S Security (India) Pvt. Ltd. defendant itself, it further becomes clear that the services of the plaintiff with IBGL, at Jordan, were actually only on transfer basis with his seniority and continuity in the original service with the defendant company, intact.
57 This witness even replied, that plaintiff had never approached the defendant company to obtain any clearance or his EPF or gratuity or any other benefit and the point involved, was that, if the plaintiff was indeed leaving the services of the defendant company, he would certainly have sought a clearance of all his dues. It is evident that plaintiff did not seek any such clearance, simply for the reason that he only being transferred to another unit or division of the defendant company, and no more. 58 Similarly, the defendant company also did not step forward to take back the equipments, electric gadgets or any other articles provided to the plaintiff during the service with the defendant company, whereas as per the rules contained in the employment contract, referred above, Ex. PW1/2 itself, vide Clause12, the employees are supposed to return the company's property, such as even uniform or any other material, upon 'severance' of their services with the company. 59 It is, then, evident that since there was no 'severance' of the service of the plaintiff with the company, that's why, the defendant company also did not insist upon return of any article with the plaintiff company, by virtue of his service with the defendant company.
60 The hesitation of DW1 even to answer this question, was also sufficient to Pages 21 to 28 Dhiraj Negi Vs. G4S Security (India) Pvt. Ltd. imply that he did not want to answer this question and the inference would be raised against the defendant company in this regard, to the effect' that it is because there was no 'severance' with the services of the plaintiff with the defendant company, that, the defendant company did not see it necessary to take back the articles in possession of the plaintiff.
61 DW1 further admitted that reference to the term "transfer" throughout his affidavit was stated to be incorrect and he claimed that whatever he stated orally, was to be treated as the correct statement. If this is accepted, the evidentiary value of the affidavit, rendered meaningless as it is not at one or two places, but throughout, he has been using the term "transfer".
62 Further DW1 was also questioned as to if defendant company was not having any connection with IBGL, how they could be in possession of documents of IBGL, and how they could file documents i.e. Ex. DW1/1 and Ex. DW1/2. Though, this was tried to be explained away by saying that these documents were filed only to establish that plaintiff had left the defendant company and joined the IBGL at Jordan, and even taken full and final settlement from IBGL, while leaving the said company. 63 The question still remained unanswered and the only implication that can be drawn is that IBGL, was a unit of defendant company itself, and all its documents were in control of the defendant company itself.
64 Going through the entire documents referred above, and the oral testimony Pages 22 to 28 Dhiraj Negi Vs. G4S Security (India) Pvt. Ltd. of DW1 particularly, it stands established clearly, that plaintiff had been sent by the defendant company on a transfer basis, to one of their units at Jordan for an unlimited period, except in case of the plaintiff opting out, and not renewing the contract. It has become clear that when he left for Jordan, he was duly relieved, but with the assurance that his continuity in service and his seniority, would all remain intact, as and when he choses to come back to his original place of posting.
65 Going by this, defendant company had no justification in disallowing the plaintiff to rejoin his services at the original post held by him, and in fact, it amounted to an illegal termination of service. The act of the defendant in disallowing the plaintiff to rejoin the service, is declared to be absolutely illegal, and there is no reason, why the plaintiff would not be entitled to the relief of declaration, as prayed for, and with all consequences flowing therefrom.
As such, issue no. 3 is, accordingly, decided in favour of the plaintiff and against the defendant.
ISSUE No. 1 :"Whether the suit of the plaintiff is not maintainable as the plaintiff has entered into a full and final settlement with the defendant company and no dues were left against the defendant company? OPP"
66 Though, the defendant has proved, and in fact, it has not even been disputed by the plaintiff also that, while leaving the service at Jordan, he had taken his full and Pages 23 to 28 Dhiraj Negi Vs. G4S Security (India) Pvt. Ltd. final dues over there, but that still would not affect the rights of the plaintiff to come back and join his original place of posting with defendant company. 67 In an "InterCompany Transfer" or a "transfer" from one division to another devision of one and the same company, it cannot be said that the employee when being relieved from deputation from the place of transfer, would not be entitled to claim and receive all his dues, and thereafter, to come back to his original place of posting. In fact, till August, 2011, when the plaintiff decided not to renew the contract to work at Jordan, nothing was even wrong, and there was no grievance or cause of action, accrued to the plaintiff, till that stage.
68 It is only upon his return to Delhi office of the defendant company, and upon his will to rejoin the service at the original post, which he had been holding, that things have gone wrong. It is from that stage, that the cause of action started to accrue to the plaintiff, as such, the reliance on the document Ex. PW1/D3, would not even be relevant for the purpose of this suit. In fact, if the entire case is to be seen, this was not even part of the controversy. The controversy has been only as to whether the plaintiff was sent on transfer or whether he left the services of the defendant company to join a new company. Since the Court has already come to the conclusion that it was a case of transfer from one division of the defendant company to another, this document Ex. PW1/D3, is not even relevant, and in fact, it is no more in controversy. 69 Document Ex. PW1/D3 cannot imply that plaintiff had entered into a full Pages 24 to 28 Dhiraj Negi Vs. G4S Security (India) Pvt. Ltd. and final settlement with the defendant company. It is only a case that plaintiff got his dues cleared at Jordan, before leaving back for India.
As such, issue no. 1 is also accordingly decided against the defendant and in favour of the plaintiff.
ISSUE No. 2: "Whether the suit of the plaintiff is not maintainable being barred U/S 41 (e) of Specific Relief Act? OPD"
70 This issue based on the objection raised by the defendant, has not even been seriously pressed, and in fact, no arguments have been addressed on this issue on behalf of the defendant. Even otherwise, there is no reason, why the contract of employment in question in this suit, would not have been specially enforceable, had the plaintiff setout to do so, and setout to seek a Specific Performance of the said employment contract i.e. Ex. PW1/2.
Issue no. 2 is also accordingly decided against the defendant and in favour of the plaintiff.
ISSUE No. 4 : "Whether the plaintiff is entitled for the decree of Rs. 4,50,450/ and increments pending for the year 2010 and 2011? OPP"
71 In view of the finding on issue no. 3, since there is no doubt that plaintiff has been kept deprived of his job ever since September 2011, and he has faced deprivation on this account, and as such, he is naturally held to be reinstated to the Pages 25 to 28 Dhiraj Negi Vs. G4S Security (India) Pvt. Ltd. original post of Regional Manager (Admn.) alongwith the entire arrears of salary from the period September 2011 onwards till August 2012, and also for the period from September 2012 onwards till date of this judgment i.e. 04.12.2014 alongwith all increments and benefits, which would have been accrueable, throughout this period to the plaintiff by virtue of his post held, as per rules.
72 Since when the plaintiff was transferred to Jordan in May 2010, the gross salary of the plaintiff was Rs. 34,650/, and plaintiff's increments were also due from April, 2010, and since plaintiff returned from Jordan in August 2011 and reported to the head office, but was denied to join the service and denied the salary and all other perks and benefits and increments, plaintiff is held entitled to the salary as he was drawing in April 2010 i.e. @ Rs. 34,650/ pm, right from August, 2011 till date of this judgment i.e. 04.12.2014.
73 Further, since the plaintiff has claimed the arrears of salary only till August, 2012 i.e. date of filing of the suit, and not beyond that, he would certainly be entitled to the pendentelite period, as well, but that would be subject to payment of additional Court Fee, as per rules.
As such, issue no. 4 is also decided in favour of the plaintiff and against the defendant.
RELIEF: Pages 26 to 28 Dhiraj Negi Vs. G4S Security (India) Pvt. Ltd.
In view of the above detailed discussion, the suit is decreed in favour of the plaintiff with following directions:
(i) The act of the defendant in not allowing the plaintiff to rejoin his services at the same post and in other words, terminating his service is declared as illegal.
(ii) Defendant is directed to reinstate the plaintiff to the last post held by him and at the last drawn salary prior to his transfer to M/s. IBGL, Jordan.
(iii) To pay the entire arrears of salary to the plaintiff w.e.f. September 2011 onwards till August 2012 at the rate of last drawn salary i.e. Rs.34,650/ X 12 = Rs.4,15,800/.
(iv) The defendant company is also directed to pay all the increments accrued during the intervening period i.e. from September 2011 onwards till August 2012.
(v) The defendant shall also be liable to pay up the entire arrears of salary at the same rate alongwith increments as well as all benefits available under the rule, accrued during the period from 11.09.2012 onwards till date of this judgment within 45 days from herefrom. Pages 27 to 28 Dhiraj Negi Vs. G4S Security (India) Pvt. Ltd.
However, in case of any execution, the decree would become executable for the future payments only subject to the plaintiff depositing the court fee in proportions.
Decree sheet be drawn.
File be consigned to Record Room.
Announced in the open Court (SUJATA KOHLI)
today i.e. on 4th December, 2014 ADDITIONAL DISTRICT JUDGE (WEST)
THC/DELHI:04.12.2014
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