Karnataka High Court
Col. Dr. Ramesh M Bhat vs Dr. M.V. Shashidharan on 20 March, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC-D:5544
RSA No. 100529 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
R
DATED THIS THE 20TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 100529 OF 2018 (MON-)
BETWEEN:
COL. DR. RAMESH M BHAT
AGE: 72 YEARS,
OCC: MEDICAL PROFESSION,
R/O. SAMARTH COLONY,
LAXMI NAGAR,
BELAGAVI.
...APPELLANT
(BY SRI. SHREEVATSA HEGDE, ADVOCATE)
AND:
DR. M.V. SHASHIDHARAN,
AGE: 63 YEARS,
OCC: MEDICAL PROFESSION,
R/O. LAXMI MEGHAN SPECIALITY HOSPITAL,
Digitally OPP MUNICIPAL BUS STAND,
signed by GROTEC ROAD,
SUJATA KANHANGAD-SOUTH-671315,
SUBHASH
PAMMAR DIST:KASARGOD,
Location: KERALA.
HIGH COURT ...RESPONDENT
OF
KARNATAKA (BY SRI.JAGDISH PATIL AND SRI. ASOKAN T.K, ADVOCATES)
THIS REGULAR SECOND APPEAL IS FILED UNDER SETION 100
OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE DATED 28.04.2018 PASSED IN
R.A.NO.74/2017 ON THE FILE THE I ADDITIONAL SENIOR CIVIL
JUDGE AND CHIEF JUDICIAL MAGISTRATE, BELAGAVI, ALLOWING
THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 06.02.2017, PASSED IN O.S.NO.2156/2012 ON THE FILE OF
THE III ADDITIONAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST
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RSA No. 100529 of 2018
CLASS, BELAGAVI, PARTLY ALLOWING THE SUIT FILED FOR
RECOVERY OF MONEY.
THIS APPEAL COMING ON FOR FURTHER ARGUMENTS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The Regular Second Appeal is filed by the plaintiff challenging the judgment and decree dated 28.04.2018 passed in R.A.No.74/2017 on the file the I Additional Senior Civil Judge and Chief Judicial Magistrate, Belagavi (for short, 'the First Appellate Court') which reversed the judgment and decree dated 06.02.2017, passed in O.S.No.2156/2012 on the file of the III Additional Civil Judge and Judicial Magistrate First Class, Belagavi (for short, 'the trial Court').
2. The cross-objection filed by the plaintiff in the regular appeal is dismissed by the First Appellate Court in the judgment and decree stated above.
3. For the purpose of convenience, ranking of the parties is referred as per their status before the trial Court.
4. The plaintiff has filed suit for recovering money of Rs.4,65,000/- with interest at 15% per annum. It is the case of the plaintiff that after completion of his graduation in -3- NC: 2024:KHC-D:5544 RSA No. 100529 of 2018 medicine and post graduation diploma, joined the Indian Army in the year 1970 and there served for 32 years and also worked as CEO in KLE Hospital, ICU, Hubballi and also in Dakshata Hospital, Belagavi, after retirement from Indian Army service.
5. It is the case of the plaintiff that defendant has offered through advertisement to the post of Medical Superintendent in the defendant-Hospital. The plaintiff accepted the said job proposal made by the defendant and accordingly after contracting with the defendant, plaintiff has joined the defendant-Hospital as Medical Superintendent. It is the case of the plaintiff that he has been offered remuneration of Rs.10,00,000/- per annum with all amenities and facilities and accordingly the defendant has accepted the offer put by the plaintiff and asked the plaintiff to join the defendant-Hospital and accordingly the plaintiff has joined the defendant-Hospital on 30.01.2012 and after completion of 3 months in the defendant-Hospital, the defendant has unceremoniously terminated the plaintiff. The defendant has only paid a sum of Rs.93,000/- but has not -4- NC: 2024:KHC-D:5544 RSA No. 100529 of 2018 paid 3 months salary as per the offer made by the plaintiff for Rs.10,00,000/- per annum, therefore, filed suit for recovery of amount for retrenchment compensation, service compensation for 1 month, transportation charges and physical and mental agony. Thus, totally claimed Rs.4,65,000/-.
6. The trial Court has decreed the suit in part by decreeing the suit for Rs.1,57,000/- and compensation of Rs.3,000/- with interest at the rate of 6% per annum.
7. Being aggrieved by it, the defendant has preferred regular appeal before the First Appellate Court and in the said appeal the plaintiff has filed cross-objection. The First Appellate Court has set aside the judgment and decree passed by the trial Court and dismissed the suit of the plaintiff. Cross-objection filed by the plaintiff is also dismissed on the reason that contract between the plaintiff and the defendant is not proved. It is the case of the plaintiff that the plaintiff was taken in service as Medical Superintendent for salary of Rs.45,000/- per month and not to be Rs.10,00,000/- per annum. Further it is the defence of -5- NC: 2024:KHC-D:5544 RSA No. 100529 of 2018 the defendant that plaintiff voluntarily left the job on his own will and wish but the defendant has not terminated the plaintiff. Further it is the case of the defendant that at the time of departure, defendant paid a sum of Rs.93,000/- as full and final settlement which includes the salary of April month's compensation and 2 days salary in January 30 and 31 of 2012.
8. This Court while admitting the appeal on 16.01.2023 has framed the following substantial question of law:
"Whether the First Appellate Court is justified in dismissing the suit, setting aside the Judgment and Decree passed by the Trial Court in O.S.No.2156/2012, which is passed by the Trial Court taking into consideration the admission made by the defendant with regard to the job offered to appellant as per Exs.P.1 and P.2, offering remuneration of Rs.10 lakhs per annum?"
9. Learned counsel for the appellant/plaintiff submitted that as per Ex.P.8-news paper publication advertisement the defendant has offered job of Medical Superintendent in the defendant-hospital and to that the -6- NC: 2024:KHC-D:5544 RSA No. 100529 of 2018 plaintiff has responded through E-mail as per Ex.P.1. In counter the plaintiff offered accepting the said job for remuneration of Rs.10,00,000/- per annum with house accommodation and other facilities. For this, the defendant has accepted the offer made by the plaintiff and consented to appoint the plaintiff in the defendant-hospital and requested for certain documents before joining the post of Medical Superintendent. Later on the defendant has terminated service of plaintiff by only making payment of Rs.93,000/- as full and final settlement without giving salary for three months and one month compensation allowance. Therefore, submitted decreeing the suit of the plaintiff in part by the Trial Court is not correct and also entirely setting aside the judgment and decree passed by the Trial Court and the First Appellate Court is erroneous and contrary to evidence on record. Therefore, prays to allow the appeal and decree the suit as prayed for.
10. On the other hand, learned counsel for the respondent/defendant submitted that there is no offer and acceptance of contact. Whatever offer made as per Ex.P.8-news paper publication advertisement is a general offer and it is not offer made specifically to the plaintiff. Further, Ex.P.2 is not the -7- NC: 2024:KHC-D:5544 RSA No. 100529 of 2018 document accepting the offer made by the plaintiff though Ex.P.1 is a hard copy of E-mail conversation, but that is not certified as per Section 65(b) of the Indian Evidence Act. Therefore, Ex.P.1 is not the offer made by the plaintiff. Hence, there is no evidence that the plaintiff has offered Rs.10,00,000/- per annum remuneration and the plaintiff was taken in service for Rs.45,000/- per month salary and the plaintiff on his own will and wish voluntarily left the defendant- hospital and for which the defendant has made payment of Rs.93,000/- as full and final settlement. Thus, the defendant has no due towards the plaintiff. Further submitted in the course of cross-examination, the plaintiff has admitted that he has received a sum of Rs.46,000/- and Rs.32,000/- amount through cheque and Rs.93,000/- amount through cash. Therefore, when the plaintiff admitted receipt of these amounts, then the defendant has no dues towards the plaintiff. Hence, submitted the suit filed by the plaintiff is misconceived and it is correctly observed by the First Appellate Court. Hence, submitted there is no substantial question of law arises. Therefore, prays to dismiss the appeal.
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11. The defendant in the written statement has admitted that the plaintiff was appointed as a Medical Superintendent in the defendant-hospital, but it is the defence of the defendant that the plaintiff was appointed of salary of Rs.45,000/- per month, but not for Rs.10,00,000/- per annum. The defendant has admitted that the plaintiff was given a job as Medical Superintendent in the defendant-hospital. Therefore, the plaintiff was offered job in the defendant hospital and the plaintiff has served in the defendant-hospital as Medical Superintendent is proved.
12. Regarding the remuneration aspect is concerned, the document evidence Exs.P.1, P.2 and P.8 are to be appreciated. Ex.P.8 is the news paper publication advertisement offered by the defendant to three categories of posts. There is no dispute regarding Ex.P.8-New Paper publication advertisement offering a job in the defendant hospital and this document is not disputed by the defendant. This Ex.P.8 document is an offer made by the defendant and to this, the plaintiff has made his offer accepting to join the defendant-hospital offered remuneration of Rs.10,00,000/- per year with house accommodation and other facilities. Ex.P.2 is -9- NC: 2024:KHC-D:5544 RSA No. 100529 of 2018 accepting the offer made by the plaintiff and giving the position in the defendant-hospital as per terms and conditions discussed through telephonically.
13. Though in Ex.P.2 there is no reference of conversation made through E-mail, but Ex.P.1 proves that the plaintiff has made E-mail offering his proposal to the defendant hospital. Ex.P.1 is the hard copy printout of the E-mail communication and which is not disputed by the defendant hospital much less while getting it marked in the course of evidence. Therefore, under these circumstances certificate as per Section 65(b) of the Indian Evidence Act is not necessary.
14. When the plaintiff has offered his proposal of remuneration of Rs.10,00,000/- per annum, there is no counter offer by the defendant-hospital regarding remuneration, and the defendant-hospital is presumed to have accepted proposal of remuneration made by the plaintiff as per Ex.P.2. Therefore, there is offer and acceptance of contract and this contract of plaintiff and defendant is fulfilled.
15. Section 3 of the Indian Contract Act, 1872 stipulates as follows:
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NC: 2024:KHC-D:5544 RSA No. 100529 of 2018 "3. Communication, acceptance and revocation of proposals.--The communication of proposals, the acceptance of proposals, and the revocation of proposals and acceptances, respectively, are deemed to be made by any act or omission of the party proposing, accepting or revoking, by which he intends to communicate such proposal, acceptance or revocation, or which has the effect of communicating it."
16. In the present case, the defendant-hospital has made offer through publishing advertisement in newspaper offering to the various posts; this offer is contract made by the defendant-hospital; this offer made is generally to the whole world likewise the plaintiff and thus the plaintiff by accepting this sent his proposal of remuneration to the defendant- hospital. Then, the defendant has made conversation with the plaintiff and sent acceptance of offer made by the plaintiff as per Ex.P-2 to join to the post. Therefore, when the plaintiff has put forward his offer of remuneration to the defendant-hospital and the defendant has accepted the proposal/offer made by the plaintiff the post of Medical Superintendent in the defendant- hospital and when it is accepted by the defendant is also amounting to deemed acceptance of remuneration offered by
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NC: 2024:KHC-D:5544 RSA No. 100529 of 2018 the plaintiff. Therefore, in this way communication is completed.
17. Section 4 of the Indian Contract Act, 1872 stipulates as follows:
"4. Communication when complete. -- The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made.
The communication of an acceptance is
complete,--
as against the proposer, when it is put in a course of transmission to him, so as to be out of the power of the acceptor;
as against the acceptor, when it comes to the knowledge of the proposer.
The communication of a revocation is complete,-- as against the person who makes it, when it is put into a course of transmission to the person to whom it is made, so as to be out of the power of the person who makes it;
as against the person to whom it is made, when it comes to his knowledge."
18. The advertisement of the defendant for filling up of the post of Medical Superintendent in defendant-hospital is an invitation to make an offer. Proposal, when submitted to the defendant, is an offer in terms of Section 4 of the Indian
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NC: 2024:KHC-D:5544 RSA No. 100529 of 2018 Contract Act and the communication of proposal/offer is completed, when received by the defendant. Where acceptance is made by method of communication through Telephone and E-mail, contract is completed when the acceptance is received by the offerer and the contract is made in the place, where the acceptance is received. Therefore, in this regard communication is complete when the plaintiff has received acceptance letter of defendant through E-mail as per Ex.p-2.
19. Section 7 of the Indian Contract Act, 1872 stipulates as follows:
"7. Acceptance must be absolute.--In order to convert a proposal into a promise, the acceptance must--
(1) be absolute and unqualified; (2) be expressed in some usual and reasonable manner, unless the proposal prescribes the manner in which it is to be accepted. If the proposal prescribes a manner in which it is to be accepted, and the acceptance is not made in such manner, the proposer may, within a reasonable time after the acceptance is communicated to him, insist that his proposal shall be accepted in the prescribed manner, and not otherwise; but, if he fails to do so, he accepts the acceptance."
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20. The cardinal principle in the light of the Section 7 of the Indian Contract Act is that the offer and acceptance of an offer must be based or founded on three components that are Certainity, Commitments and Communication. In the present case, in response to the advertisement made by the defendant- hospital, the plaintiff has sent his offer/proposal by stating his request of remuneration with facilities mentioned therein and in turn, the defendant has accepted the offer/proposal made by the plaintiff and communicated his acceptance to the plaintiff as per Ex.P-2, therefore, in this regard, the acceptance is proved to be absolute. Here, the defendant being acceptor has not put any new condition or has not stated decreasing the remuneration of offer made by the plaintiff and accepted by the defendant-hospital without any variation and unless there is variation upon accepting the offer/proposal made by the plaintiff, then the acceptance is proved to be absolute and complete.
21. The acceptance can be in express terms or can be implied terms. Here, conduct of the defendant-hospital proves that the defendant-hospital has accepted the whole offer made by the plaintiff which is nothing but implied acceptance; a
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NC: 2024:KHC-D:5544 RSA No. 100529 of 2018 contract can be implied as per Section 9 of the Indian Contract Act, 1872, which stipulates as follows:
"9. Promises, express and implied.--In so far as the proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied."
22. Here, the defendant-hospital has accepted the offer/proposal made by the plaintiff by accepting and permitting the plaintiff to join as Medical Superintendent without any variation in the remuneration offered by the plaintiff; therefore, so far as the offer/proposal made in respect of remuneration is implied contract. The defendant-hospital has not varied the offer of remuneration made by the plaintiff or has not put any other terms so far as remuneration, but the defendant-hospital has wholly accepted the offer made by the plaintiff and the acceptance is communicated to the plaintiff. Therefore, Ex.P.2- acceptance letter issued by the defendant-hospital, the remuneration though is silent, but the very fact that upon the proposal made by the plaintiff and communicating the plaintiff by the defendant to join in the defendant-hospital as Medical Superintendent is amounting to acceptance is complete and absolute. Therefore, the contract between plaintiff and
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NC: 2024:KHC-D:5544 RSA No. 100529 of 2018 defendant-hospital is proved and acted upon by mutually each other.
23. Where the plaintiff has proposed his remuneration of Rs.10,00,000/- per annum and the defendant has accepted and willing to give position in the hospital that proves that the defendant accepted the offer made by the plaintiff regarding remuneration also not only to the post. Ex.P.6 is the Identity Card issued by the defendant hospital to the plaintiff showing designation as medical superintendent. This document is not disputed by the defendant. Further photograph of display board is produced having taken from the hospital in which display board is put up and in this display board in the hospital, the plaintiff is shown as medical superintendent in the said hospital.
24. When this being the mutual agreement between plaintiff and defendant, and the defendant has accepted the proposal of the plaintiff, then the contract between plaintiff and defendant is completed and is proved. Therefore in this regard, the First Appellate Court has committed serious error in not observing that contract is proved. Contract always need not be in a detail form by putting all the terms and conditions in minutely, but where offer is made by one party and accepted
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NC: 2024:KHC-D:5544 RSA No. 100529 of 2018 by other party and when the said contract is acted upon and implemented, then it is complete contract. This is lost sight by the First Appellate Court. Therefore, the judgment and decree passed by the First Appellate Court is liable to be set aside.
25. Considering the question of remuneration, as disputed between the plaintiff and the defendant, and this can be considered on all its preponderance of probabilities revealed from the evidence on record that the plaintiff is a qualified M.B.B.S. degree holder and also he did his post graduation diploma in the Medicine and served in the Indian Army for 32 years. After retirement from the Indian Army, the plaintiff has served in KLE's Hospital, Dakshata hospital in Belagavi and ICU Hubballi. Then when the plaintiff has seen the offer made by the defendant hospital through news paper publication advertisement, decided to leave the hospitals at Hubballi and Dharwad accepting the offer made by the defendant hospital. When such qualified person offered to the post of Medical Superintendent, then for amount of Rs.45,000/- per month the plaintiff has agreed cannot be believed. As discussed above, the plaintiff has offered by sending his proposal for Rs.10,00,000/- per annum and that is accepted by the defendant hospital as
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NC: 2024:KHC-D:5544 RSA No. 100529 of 2018 per Ex.P.2. Though the defendant has not specifically stated remuneration payable to the plaintiff as Rs.10,00,000/- per annum, but to the offer made by the plaintiff accepting the offer of the plaintiff, it implies that the defendant has accepted the proposal made by the plaintiff. Therefore, it is proved that the defendant hospital has accepted the offer of the plaintiff of remuneration of Rs.10,00,000/- per annum which comes to Rs.85,000/- per month. From the evidence on record and also admissions made by the defendant in the evidence as well as written statement at para No.5, the plaintiff has joined services of the defendant on 30.01.2012 and worked therein for three months in the defendant hospital. It is the case of the plaintiff that, the defendant has retrenched the plaintiff from the month of May-2012 without giving any reasons. Hence, it is proved from the evidence of defendant itself that the plaintiff has worked as Medical Superintendent in the hospital for three months and two days. Whether it is amounting to retrenchment or termination is not the question in this appeal, but the fact remains that the defendant has not availed services of the plaintiff from the month of May-2012. Therefore, it is proved that the plaintiff has served in the defendant hospital for three months and though as per defendant the plaintiff himself has
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NC: 2024:KHC-D:5544 RSA No. 100529 of 2018 left service of defendant hospital voluntarily hard to be accepted. The plaintiff is resident of Belagavi and went to defendant-hospital which is nearly 1000 kmrs away from Belagavi and after accepting job in the defendant hospital, the plaintiff left the post of medical superintendent voluntarily on his own will and wish is hard to be believed. Though whether the plaintiff has left the defendant hospital on his own will and wish voluntarily or the defendant has terminated the plaintiff from the service, in this regard there is no direct evidence, but on all its preponderance of probabilities, inference can be drawn that the defendant hospital has terminated/retrenched the service of plaintiff from the defendant hospital.
26. Therefore, for the aforesaid reasons, it is proved that the defendant has accepted the offer of the plaintiff for remuneration of Rs.10,00,000/- per annum and since the plaintiff has worked in the defendant hospital for three months, therefore the plaintiff retrenchment compensation for three months calculating monthly salary of Rs.80,000/- per month. Further as service compensation, the plaintiff is entitled one month salary. Since, the plaintiff was constrained to leave defendant hospital within a period of three months from
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NC: 2024:KHC-D:5544 RSA No. 100529 of 2018 joining; therefore, the plaintiff is also entitled transportation charges. When the plaintiff is senior citizen after retiring from the Indian Army service and having served in the defendant hospital by going to Kerala State to serve in the defendant hospital and within a period of three months, the plaintiff was constrained to give up the job in the defendant hospital. Therefore, for such physical and mental agony, the plaintiff is needed compensation. Thus, the First Appellate Court has committed error in observing that contract is not proved. Also the Trial Court has not considered on record correctly and in true and prospective manner in determining the compensation. Thus so far as determining quantum of compensation, the judgment and decree passed by the Trial Court is liable to be interfered with. Accordingly I answer the substantial question of law No.1 is in the negative holding that the First Appellate Court is not justified in reversing the judgment and decree passed by the Trial Court. The defendant in the written statement has pleaded that the defendant has paid Rs.93,000/- to the plaintiff as full and final settlement. In the course of cross-examination, the plaintiff has admitted that he has received part payment of salary of Rs.46,000/- and Rs.32,000/-
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NC: 2024:KHC-D:5544 RSA No. 100529 of 2018 through cheque for the month of February and March and for the month of May Rs.93,000/- through cash.
27. Upon considering these two averments one in the written statement of the defendant and another one in the course of cross-examination of the plaintiff, the admissions made by the defendant in the written statement is carrying more weightage and having more credentials than the stray sentences/admissions made in the course of cross-examination. Though in the course of cross-examination, the plaintiff might have admitted receipt of Rs.46,000/-, Rs.32,000/- and Rs.93,000/- above stated, but in the written statement the defendant has made averment with all his consciousness that the defendant has paid Rs.93,000/- towards full and final settlement. Therefore, the pleadings/averments made either in the plaint or written statements are having highest regard with all consciousness of the parties such averments are made knowingly with their wisdom. Whereas in the course of cross examination at some times admissions may be revealed, but those admissions are to be weighed and sifted in comparing with the averments made in the plaint or written statement of the respective parties. Therefore, whatever the admissions
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NC: 2024:KHC-D:5544 RSA No. 100529 of 2018 might have revealed in the course of cross examination as above stated they are found to be stray admissions/sentences having lesser credential and weightage compare to the admitted pleadings of the defendant in the written statement. The defendant in the written statement have categorically made pleading that the defendant has paid Rs.93,000/- as full and final settlement. There is no other pleadings by the defendant that the defendant has paid other payments also other than Rs.93,000/-. Therefore in this regard it is proved that the defendant has only paid Rs.93,000/- to the plaintiff.
28. Furthermore the judgment and decree passed by the Trial Court is liable to be modified. Therefore, the plaintiff is entitled compensation from the defendant are as follows:
Three months (Salary comparable to
1. 2,55,000 retrenchment compensation) 85,000 x 3
2. One month's salary as service 85,000 compensation
3. Transportation expenses 25,000
4. Physical and Mental agony 1,00,000 Total 4,65,000 Less: Amount paid by the defendant 93,000 to the plaintiff:
Enhanced compensation: 3,72,000
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RSA No. 100529 of 2018
29. Ex.P.9 is the copy of cheque produced by the plaintiff having received Rs.93,000/- from the defendant hospital. Therefore, the plaintiff is entitled a sum of Rs.3,72,000/- with interest at the rate of 9% per annum from the date of filing of the suit till realisation. Therefore, having answered substantial question of law in the negative for the reason above discussed and stated, the appeal filed by the plaintiff is liable to be allowed. Accordingly, I proceed to pass the following:
ORDER
i) The judgment and decree dated 28.04.2018 passed in R.A.No.74/2017 by the I Additional Senior Civil Judge and CJM., Belagavi is set aside.
ii) The judgment and decree dated 06.02.2017 passed in O.S.No.2156/2012 by the III Additional Civil Judge and JMFC., Belagavi is modified to the extent that the plaintiff is entitled Rs.3,72,000/- with interest at the rate of 9% per annum from the date of filing of the suit till realisation from the defendant.
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iii) The defendant/hospital is hereby directed to pay the above said amount to the plaintiff within a period of one month from the date of receipt of copy of this order.
iv) Accordingly, the suit of the plaintiff is decreed with cost.
v) Draw decree accordingly.
Sd/-
JUDGE
KGK: Para 1 to 7
SSP: Para 8 to 14 & 23 to end
SRA: Para 15 to 22
CT:ANB
List No.: 1 Sl No.: 39