Calcutta High Court
Ashok Kumar Nath vs Union Of India & Others on 23 November, 2017
Author: Arijit Banerjee
Bench: Arijit Banerjee
In the High Court At Calcutta
Ordinary Original Jurisdiction
Original Side
CS 279 of 2014
Ashok Kumar Nath
Vs.-
Union of India & Others
Before : The Hon'ble Justice Arijit Banerjee
For the petitioner : Mr. Kamalesh Bhattacharjee, Sr.
Adv.
Mr. Murali Mohan Ray, Adv.
For the defendant : Mr. O.P. Dubey, Adv.
Mr. Sunil Singhania, Adv.
Heard On : 11.05.2017, 16.05, 2017, 19,05, 2017.
CAV On : 23.06.2017
Judgment On : 23.11.2017
Arijit Banerjee, J.:-
(1) This case has a chequered history. A tender notice dated 15
July, 2004 was issued by the Office of the Director, Kolkata GPO
inviting applications for appointment as Professional Letter Writers (in
short "PLW") at the Kolkata GPO for the period 2004-2006. The
plaintiff applied along with other persons. The plaintiff tender was
accepted as recorded in a Memo dated 11 August, 2004 issued by the
Director of Kolkata GPO. The plaintiff started operating as a PLW at
the Kolkata GPO.
(2) By a notice dated 4 March, 2005 the permission issued to the
plaintiff to operate as PLW was terminated with immediate effect.
(3) The plaintiff challenged such termination by filing WP No.
6082 (W) of 2005 in this Court. By a judgment and order dated 6 July,
2007 the order of termination was set aside primarily on the ground of
violation of the principles of natural justice. The operative portion of
the said judgment and order reads as follows:-
"Under these circumstances, the
impugned order of termination cannot be
sustained and same is set aside, and the
Director, Kolkata GPO who had considered
the matter earlier is directed to consider
the matter afresh, upon giving the
petitioner an opportunity of being heard
and upon making available to him the
copies of the complaints which formed the
basis of the proceeding against the
petitioner.
I am also of the opinion that the
allegations against the petitioner are of
serious nature and accordingly, till the
matter is finally resolved, the petitioner
ought not be allowed to work as
Profession Letter Writer. The decision by
the Director, Kolkata GPO, shall be taken
within a period of eight weeks from the
date of communication of this order.
The petitioner shall be entitled to
participate in fresh tender in the mean
time but in the event, he is found guilty
of any misconduct, then, his offer shall
not be accepted and till the Director of
Kolkata GPO decides the matter, within
the period stipulated above, he shall not
be entitled to work as Professional Letter
Writer even if selected in the Tender".
(4) Subsequent to the said order the defendant no. 2 gave a hearing
to the plaintiff and passed an order dated 11 September, 2007 whereby
he rejected the tender submitted by the plaintiff for the period 1
September, 2007 to 31 August, 2010 and also ordered that the plaintiff
would not be given any more opportunities in future to participate in
the tender process for selecting PLWs at the Kolkata GPO.
(5) The plaintiff again approached this Court by filing WP No.
22355 (W) of 2007 alleging that copies of complaints on the basis of
which proceedings had been initiated against him were served upon
him only on 30 August, 2007. i.e., the date of hearing itself and hence
he did not have sufficient opportunity to consider such documents. By
a judgment and order dated 29 August, 2008 this Court held that the
plaintiff did not get a reasonable opportunity of hearing and
accordingly set aside the order of the defendant no. 2 dated 11
September, 2007. The operative portion of the said judgment and
order reads as follows:-
"The writ petition is disposed of by
setting aside the impugned order dated
11.9.2007 being annexure P- 8 to the writ
petition and by granting leave to the
petitioner to file his written objection, as
aforesaid, if any, within three weeks from
this date and by directing the respondent
No 2 to consider the matter in dispute afresh after giving a reasonable opportunity of hearing to the petitioner and dispose of the said matter by passing a speaking order within eight weeks from this date.
It is made clear that if the petitioner intends to make oral submissions at the time of hearing, the respondent No 2 shall allow the petitioner to make his oral submissions.
This court is of the view that since the allegations made against the petitioner are serious in nature, the petitioner should not be allowed to work as Professional Letter Writer till the matter is finally resolved".
(6) Pursuant to the said order of this Court, the defendant no. 2 considered the case of the plaintiff afresh and passed an order dated 24/27 October, 2008 rejecting the plaintiff's plea of innocence. The operative portion of the said order reads as follows:-
"After hearing the petitioner, I have come to the conclusion that the reasons cited by him to consider his innocence couldn't be justified under any moral circumstances. The offence committed by Sri Ashoke Kr Nath is serious in nature. This kind of malpractice not only damages the image of the Department but also belies the trust and faith imposed by the general public on the Department of Posts. Naturally, to protect the image of the Department, I do hereby order that the tender, which Sri Sri Ashoke Kr Nath submitted for the tenure 01.09.2007 to 31.08.2010 is rejected and he will not be allowed to work as PLW at Kolkata GPO in future".
(7) The plaintiff again approached this Court challenging the said order of the defendant no. 2 by way of WP No. 8446 (W) of 2008. By a judgment and order dated 2 September, 2009 the said writ application was dismissed.
(8) The plaintiff's appeal against the said judgment and order of the learned Single Judge being MAT No. 1003 of 2009 was allowed by a judgment and order dated 24 December, 2010. The order of the defendant no. 2 dated 24/27 October, 2008 was quashed by the Hon'ble Division Bench.
(9) Subsequently, the plaintiff filed a 4th writ petition in this Court being WP No. 6363 (W) of 2011 claiming compensation for illegal termination of permission to work as PLW at the Kolkata GPO. The said writ petition was dismissed by a judgment and order dated 25 April, 2012. The learned single Judge observed that the writ court is not the appropriate forum to claim compensation in such type of cases where the quantum of damages suffered by the petitioner requires determination upon consideration of relevant facts and circumstances and upon taking evidence in that regard and that the appropriate remedy of the petitioner (the present plaintiff) is before an appropriate civil Court.
(10) The plaintiff's appeal against the said judgment and order being FMA 1013 of 2012 was dismissed by the Hon'ble Division Bench by a judgment and order dated 1 August, 2013.
(11) The plaintiff's special leave petition against the Hon'ble Division Bench's order was dismissed by the Hon'ble Apex Court by an order dated 3 March, 2014. However, the Hon'ble Apex Court observed that 'In case the petitioner eventually files a suit in terms of liberty reserved to him by the High Court, the Court concerned may make an endeavor to expedite the disposal of the appeal'. (12) The plaintiff subsequently served a notice dated 7 April, 2014 under Section 80 of the Code of Civil Procedure on the defendants claiming compensation of Rs.16.5 lacs for the period 4 March, 2005 to 31 August, 2010 at the rate of Rs.25,000 per month. Such notice was received by the defendants on 10 April, 2014. The present suit was filed on 17 July, 2014.
(13) Initially, the defendants did not file written statement. Upon the suit being listed as 'undefended suit', an ex parte decree dated 16 February, 2015 was passed by a learned single Judge holding that the plaintiff would be entitled to Rs.5 lacs as damages together with simple interest thereon at the rate of six per cent per annum from 7 October, 2007 till realization.
(14) The defendants appealed.
(15) The Hon'ble Division Bench in its judgment and order dated 13 January, 2016 observed that the question of limitation had not been considered by the learned single Judge. The ex parte decree was set aside and the matter was remanded back for fresh adjudication by the learned single Judge with liberty to the defendants to file written statement. Such written statement was filed.
(16) By an order dated 1 December, 2016 a learned single Judge framed the issues as follows:-
"i) Is the suit maintainable in its present form and in law ?
ii) Is the suit barred by law of limitation ?
iii) Is the contractual service of the plaintiff terminated by the defendants in accordance with law ?
iv) Is the plaintiff entitled to get the decree for compensation as prayed for ?
v) Is the plaintiff entitled to get other reliefs ?"
(17) Appearing for the plaintiff Mr. Bhattacharjee, learned counsel, submitted that the termination of permission to the plaintiff to operate as PLW has been quashed by the Court and hence it is established that such termination was illegal. The plaintiff's cause of action arose on 24 December, 2010 when the Hon'ble Division Bench quashed the order dated 24/27 October, 2008 passed by the defendant no. 2. The fourth writ petition was filed on 4 April, 2011 and the same came to a final conclusion by dismissal of the special leave petition on 3 March, 2014. The suit was filed on 17 July, 2014. Hence, the suit is not barred by limitation.
(18) Learned counsel relied on a decision of the Hon'ble Supreme Court in the case of Rameshwarlal -vs.- Municipal Council, Tonk and Others, (1996) 6 Supreme Court Cases 100. Learned counsel relied on paragraph 3 of the judgment which reads as follows:-
"3. Normally for application of Section 14, the court dealing with the matter in the first instance, which is the subject of the issue in the later case, must be found to have lack of jurisdiction or other cause of like nature to entertain the matter. However, since the High Court expressly declined to grant relief relegating the petitioner to a suit in the civil court, the petitioner cannot be left remediless. Accordingly, the time taken in prosecuting the proceedings before the High Court and this Court, obviously pursued diligently and bona fide, needs to be excluded. The petitioner is permitted to issue notice to the Municipality within four weeks from today. After expiry thereof, he could file suit within two months thereafter. The trial court would consider and dispose of the matter in accordance with law on merits".
(19) As regards the evidence in support of the plaintiff's claims for damages learned counsel relied on question nos. 92 to 94 of the plaintiff's deposition. Learned counsel also relied on a decision of the Hon'ble Supreme Court in the case of Dipti Prakash Banerjee -vs.- Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Others, AIR 1999 Supreme Court 983. Learned counsel relied on paragraph 47 of the said judgment which reads as follows:-
"Learned senior counsel for the respondent submitted on the basis of State of Haryana v. Jagdish Chander.
(1995) 2 SCC 567 : (1995 AIR SCW 964) that merely because an order of termination was set aside on grounds of lack of opportunity, it was not necessary to direct reinstatement and backwages.
Reliance in Jagdish Chandra 's case (1995 AIR SCW 964) was placed upon Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC 727 : (1994 AIR SCW 1050). It is true that such an order not granting reinstatement or back wages was passed in Jagdish Chander's case (1995 AIR SCW
964) following Karunakar's case. But it has to be noticed that in Karunakar's case, there was a regular departmental inquiry but the inquiry report was not given to the officer. This Court directed the report to be given and set aside the proceedings from that stage and stated that no order for reinstatement or backwages need be passed at that stage.
But in cases like the present where no departmental inqury whatsoever was held. Karunakar's case in our view, cannot be an authority. As to backwages, on facts the position in the present case is that there is no material to say that the appellant has been gainfully employed.
The appellant is, therefore, entitled to reinstatement and backwages till the date of reinstatement from the date of termination and to continuity of service.
Point 4 is decided accordingly".
(20) Appearing for the defendants, Mr. Dubey learned counsel drew my attention to the letter of complaint lodged against the plaintiff. The complaint is one of removal of money from an insured envelope. It was submitted that the terms and conditions of the tender notice which formed terms and conditions of the permission accorded to the plaintiff to operate as PLW, permitted the defendants to revoke the permission. In particular, learned counsel referred to Clause D of the letter granting permission to the plaintiff to operate as PLW. Learned counsel also referred to Clause VII of the tender notice which reads as follows:-
"The profession of such tenderers, as will be selected and engaged to work as professional letter writers, may be terminated at any time without assigning any reason therefor'.
(21) Mr. Dubey referred to a document at page 118 of the Judge's Brief of Documents being Exbt- 2 wherein the plaintiff appears to have recorded refund of Rs.1300 to the complainant being one Anil Sharma. (22) Learned counsel then referred to a show cause notice dated 23 February, 2005 issued by the defendants to the plaintiff.
(23) Learned counsel then submitted that the suit is hopelessly barred by the laws of limitation and Section 14 of the Limitation Act is not applicable to the facts of this case.
(24) Finally Mr. Dubey submitted the writ court only interfered with the decision making process and not with the decision of the defendants to terminate the permission that had been granted to the plaintiff. Hence, the termination was lawful. No question of compensating the plaintiff can therefore arise.
Court's View:-
(25) I have given anxious consideration to the rival contentions of the parties.
(26) The first issue as regards the maintainability of the suit has not been pressed by learned Counsel for the defendants. The suit is for recovery of damages on account of alleged wrongful termination of the plaintiff's engagement/appointment as PLW. I do not see why the suit is not maintainable in law or in its present form. Accordingly, this issue is decided in favour of the plaintiff.
(27) The second issue is whether or not the suit is barred by limitation. The cause of action of the plaintiff is alleged wrongful termination of his tenure as PLW and accordingly the plaintiff claims damages/compensation. The question is, when did such cause of action arise? The answer must be that such cause of action arose upon the Hon'ble Division Bench of this Court setting aside the order of the defendant no. 2 dated 24/27 October, 2008 by a judgment and order dated 24 December, 2010 in MAT No. 1003 of 2009. Prior thereto, twice the plaintiff had approached this Court by way of writ petitions challenging the earlier termination orders on the ground of breach of the principles of natural justice and on both occasions this Court had remanded the matter back to the defendant authorities for fresh consideration. The third writ petition of the plaintiff was dismissed by the learned Single Judge. The plaintiff's appeal against such dismissal order was allowed by the Hon'ble Division Bench and the impugned office order was set aside. No fresh proceeding was held by the defendants against the plaintiff. After the period covered by the second tender expired on 31 August, 2010 there was no scope for the plaintiff to claim that he be allowed to work as PLW. The only relief that he could claim was damages/compensation. In my considered view, the cause of action for claiming such relief arose on 24 December, 2010, i.e., the date when the Hon'ble Division Bench delivered judgment in MAT No. 1003 of 2009.
(28) The plaintiff filed a fourth writ petition claiming damages/compensation which was dismissed by a judgment and order dated 25 April, 2012 by a learned Single Judge observing that the writ court was not the proper forum. Such order was affirmed by the Hon'ble Division Bench by a judgment and order dated 1 August, 2013.
The Hon'ble Apex Court dismissed the plaintiff's Special Leave Petition against the Hon'ble Division Bench's order on 3 March, 2014. The suit was filed on 17 July, 2014.
(29) Since, according to me, the plaintiff's cause of action for the instant suit arose on 24 December, 2010 and the suit was filed on 17 July, 2014, i.e., beyond three years from the date when the cause of action arose, at first blush, the suit would appear to be barred by limitation. The question is, whether the plaintiff is entitled to the benefit of Sec. 14 of the Limitation Act. Sec. 14(1) of the Limitation Act reads as follows:-
"S. 14(1). In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it."
(30) I am of the view that the plaintiff is entitled to claim benefit of Sec. 14. The plaintiff filed the fourth writ petition soon after his cause of action for claiming compensation for illegal termination arose on 24 December, 2010 and well within the period of limitation. Such proceeding came to an end with the dismissal of the Special Leave Petition by the Hon'ble Apex Court on 3 March, 2014. Although it cannot be said that the writ court did not have jurisdiction to award compensation/damages, it is established law that the writ court is not the proper forum for claiming damages. Hence, the fourth writ petition that the plaintiff filed and pursued till the Apex Court, in my opinion, was not entertained by the court not strictly because of lack of jurisdiction but 'other cause of like nature'. Hence, I am of the view, that the period spent by the plaintiff for pursuing the fourth writ petition right up to the Hon'ble Apex Court should be excluded for computing the period of limitation for filing the present suit. Admittedly, the fourth writ petition was filed in 2011 and came to a final conclusion with the Apex Court's order dated 3 March, 2014. If this period is excluded, the suit filed on 17 July, 2014 is well within the period of limitation. In Rameshwarlal-vs.-Municipal Council, Tonk (supra), the Apex Court observed that in the facts of that case since the High Court had declined to grant relief relegating the petitioner to a civil suit, the petitioner could not be left remediless. Accordingly, the Apex Court directed that the time taken in prosecuting the proceeding before the High Court and the Apex Court which was pursued diligently and bona fide would be excluded for the purpose of computing the limitation period for filing a suit. In the present case, I do not find any lack of diligence or want of bone fide on the part of the plaintiff in prosecuting the fourth writ petition, nor has such point been urged by learned Counsel for the defendants. A bald statement was made on behalf of the defendants that Sec. 14 of the Limitation Act does not apply to the facts of this case. I am unable to accept such submission. I am of the considered view that the plaintiff is entitled to the benefit of exclusion of time in terms of Sec. 14 of the Limitation Act and the suit is not barred by limitation. Accordingly, the second issue is decided in favour of the plaintiff. (31) As regards the third issue i.e. whether the contractual service of the plaintiff was terminated by the defendants in accordance with law, I have to answer this question in the negative. The Hon'ble Division Bench by its judgment and order dated 24 December, 2012 in MAT 1003 of 2009 held the termination to be unlawful and quashed the order of termination. No further step was taken by the defendants against the plaintiff to establish the charges leveled against the plaintiff. As of date such charges stand unsubstantiated and not proved. Hence, I will have to proceed on the basis that the termination of the plaintiff's service was not in accordance with law.
(32) The fourth issue is regarding damages/compensation. Since I have held that the plaintiff's service was terminated unlawfully, he is surely entitled to compensation. The question is what should be the quantum of compensation?
(33) The evidence of the plaintiff on this point is rather sketchy and not very convincing. I will advert to the deposition of the plaintiff but before that I deem it appropriate to dilate briefly on the law relating to assessment of the quantum of damages. (34) Damages that the Court awards for breach of contract including a service contract are compensatory and not penal in nature. This is well-established and the Division Bench decision of this Court in Usha Beltron Ltd.-vs.-Nand Kishore Parasramka, AIR 2001 Cal 137, is as good an authority as any for such proposition.
(35) As regards damages for wrongful dismissal, Chitty on Contracts, 26th Ed., Vol. II, pg. 837 states that the normal measure of damages is the amount the employee would have earned under the contract for the period until the employer could lawfully have terminated it, less the amount he could reasonably be expected to earn in other employment. The dismissed employee, like any innocent party following a breach of contract by the other party must take reasonable steps to mitigate his loss. In the case of wrongful dismissal, these reasonable steps mean that the employee must seek and accept any reasonable offer of other employment; if he fails to take some other employment which he ought reasonable to have done, damages will be assessed on the basis of the difference between the salary or wages under the broken contract and that the dismissed employee was offered under an alternative employment which he should have accepted.
(36) It is also settled law that the fact that damages are difficult to assess does not disentitle the plaintiff to compensation for loss resulting from the defendant's breach of contract. (Chitty on Contracts, 26th Ed., Vol. I, pg 1118). This has been the consistent view of the English Courts and one may refer to, Chaplin-vs.-Hicks, (1911) 2 KB 786; Otter-vs.-Church, Adams, Tatham & Co. (1953) 1 WLR 156 and Cook-vs.-Swinfen, (1967) 1 WLR 457. If it is clear that the plaintiff has suffered substantial loss, but the evidence on record does not enable the loss to be precisely quantified, the Court will assess the damages as best as it can on the available evidence. (See Tai Hing Cotton Mill Ltd.-vs.-Kamsing Knitting Factory, 1979 AC 91).
This also appears to be the view of our High Court. In Gambhirmull Mahabirprasad-vs.-Indian Bank Ltd., AIR 1963 Cal 163, a learned Judge of this Court held that the fact that damages are difficult to estimate and cannot be assessed with certainty or precision, does not relieve the wrongdoer of the necessity of paying damages for his breach of obligation, and is no ground for awarding only nominal damages. Where it is established that damage has been incurred for which the defendant should be held liable, the plaintiff may be accorded the benefit of every reasonable presumption as to the loss suffered. Thus the court, or a Jury doing the best that can be done with insufficient material, may have to form conclusions, on matters on which there is no evidence and to make allowance for contingencies even to the extent of making a poor guess. This decision was followed by another learned Judge of this Court in Sree Gopal Khaitan-vs.-Scandinavian Air Lines System, (1977) 2 CLJ 108. (37) In ONGC Ltd.-vs.-Saw Pipes Ltd., (2003) 5 SCC 705, at paragraph 68 of the reported judgment the Apex Court observed that Secs. 73 and 74 of the Contract Act, 1872 have to be read together and in every case of breach of contract, the aggrieved person is not required to prove actual loss or damage suffered by him before he could claim a decree. The court is competent to award reasonable compensation in case of breach even if no actual damage is proved to have been suffered in consequence of the breach of the contract. (38) Hence, it appears to be settled law that insufficient evidence in support of a claim for damages would not per se defeat the claim if the defendant's liability is established. The court shall do at its best to assess reasonable damages on the basis of the available evidence. In the present case, the plaintiff has claimed compensation in the sum of Rs. 16,50,000/- for the period March 2005 to 31 August, 2010 at the rate of 25,000/- per month. In his evidence, the plaintiff has stated that between 2008 and 2013 he had income of less than Rs. 1 lac per year. He has also stated that his income while working as PLW at GPO was about 1000/- per day in the year 2004 which stood reduced to Rs. 500-600/- per day in the year 2005. In 2006-07 he claims to have survived by working as law clerk. He used to earn between Rs. 100- 300/- per day. The plaintiff has also stated that while acting as PLW at the GPO he had appointed an assistant to whom he used to pay Rs. 50-100/- per day depending on the volume of work. (39) Hence, it is not that the plaintiff did not have any income at all for the period from March, 2005 till 31 August, 2010. Although such income cannot be quantified precisely, I have no doubt in my mind that Rs. 25,000/- per month is too high a claim that has been made by the plaintiff. Various other contingencies will have to be allowed for, i.e., possible ill health of the plaintiff or other personal reasons not permitting him to operate as PLW for some days, fluctuating the volume of work, etc. In the judgment dated 16 February, 2015 passed by a learned Judge of this Court whereby His Lordship had decreed this suit when it appeared as an undefended suit, His Lordship discussed the issue of assessment of damages and came to a conclusion that taking all uncertainties into account the plaintiff would be entitled to a decree for Rs. 5 lacs together with simple interest at the rate of 6% per annum from 1 October, 2007 till realization. The ex parte decree was set aside by the Hon'ble Division Bench and the matter was remanded back to the first Court only because the point of limitation had not been considered by the learned Judge. I am in agreement with the quantum of damages that had been arrived at by the learned Judge while passing the ex parte decree. In my opinion Rs. 5 lacs would be a fair and reasonable assessment of the loss that the plaintiff suffered by reason of wrongful termination of his service, after allowing for various uncertainties and the income that he earned from other sources.
(40) Accordingly, there will be a decree for Rs. 5 lacs in favour of the plaintiff. The plaintiff shall also be entitled to simple interest on the decreetal amount at the rate of 8 % per annum from 31 August, 2010 till 30 June, 2014. The plaintiff will also be entitled to simple interest pendente lite at the rate of 8% per annum from 17 July, 2014 till the date of the decree and also interest on judgment at the rate of 6% per annum from the date of decree till the date of payment of the decreetal dues by the defendants to the plaintiff. The plaintiff shall also be entitled to costs of the suit assessed at Rs. 50,000/- towards Court Fees paid and other expenses incurred by him for conducting the suit.
(41) The suit is decreed accordingly. The Department is directed to draw up the decree expeditiously.
(42) Urgent certified Photocopy of this judgment and orders, if applied for, be given to the parties upon compliance of necessary formalities.
(Arijit Banerjee, J.)