Delhi District Court
Dr Ss Anand vs Clearmedi Health Care Pvt. Ltd on 3 May, 2024
IN THE COURT OF MS. ANURADHA SHUKLA
BHARDWAJ: DISTRICT JUDGE (COMMERCIAL
COURT)-02, SOUTH DISTRICT, SAKET, NEW DELHI
CS (Comm.) No. 407/20
1. DR. (BRIG.) S.S.ANAND
S/O. LATE BRIG. H.S.ANAND
R/O. A1-401, PARSVNATH EXOTICA,
GOLF COURSE ROAD, SECTOR-53,
GURUGRAM,HARYANA-122011.
.......PLAINTIFF
Versus
1. M/S.CLEARMEDI HEALTHCARE PVT. LTD.
THROUGH ITS MANAGING DIRECTOR
MR. SHASHI BALIYAN
HAVING THEIR REGISTERED OFFICE AT:
G-21 & 22, PLOT NO.3,
GROUND FLOOR, COMMUNITY CENTRE,
AGGARWAL PLAZA, PRASHANT VIHAR,
SECTOR-14, ROHINI,
DELHI-85.
ALSO AT: CORPORATE OFFICE:
107, SECTOR-44, GURUGRAM,
HARYANA.
2. JAMIA HAMDARD UNIVERSITY
THROUGH ITS REGISTRAR
AT: HAMDARD NAGAR, DELHI-62.
........DEFENDANTS
CS (COMM) 407/20 1 of 28 Dr.(Brig.)S.S.Anand Vs
M/s. Clearmedi Healthcare Pvt. Ltd. & Anr.
Date of filing of the suit : 18.12.2020
Date of reserving judgment : 09.04.2024
Date of judgment : 03.05.2024
JUDGMENT
1. This suit was originally filed for recovery of Rs.27,57,914/- filed by the plaintiff against the defendants, also seeking declaration and mandatory injunction declaring the termination letter issued by defendants to the plaintiff as null and void and directing defendant no.1 to withdraw the impugned letters.
2. The case of the plaintiff is that the plaintiff, who is a radiologist and retired Brigadier from Indian Army was employed by defendant no.2 at Hamdard Institute of Medical Sciences and Allied Research (HIMSR). Defendant no.2 Jamia Hamdard University is a deemed university.
3. It is stated that defendant no.2 and defendant no.1, which is a company engaged in the business of supply, management and implementation of hospitals and health care center, had entered into an understanding. As per the understanding, the defendants between them had agreed that the employees of defendant no.2 in certain CS (COMM) 407/20 2 of 28 Dr.(Brig.)S.S.Anand Vs M/s. Clearmedi Healthcare Pvt. Ltd. & Anr. positions/designations would be engaged by defendant no.1 as consultants in the Imaging Center. As per understanding, these faculty consultants were to work with defendant no.1 and were to be paid consultancy fee. The plaintiff was accordingly, appointed as faculty consultant by defendant no.1 on probation w.e.f 07.12.2012. The probation was confirmed vide letter on 07.12.2013. It is stated that during his tenure with defendant no.1, defendant no.1 made several deductions in the agreed consultancy fee payable to the plaintiff. It is stated that Managing Director (defendant no.1) had assured plaintiff that outstanding amounts shall be credited during the course of time and the deductions were made due to paucity of funds owing to low performance of business. The plaintiff did not raise any protest for considerable time, he was not given any appraisal for 7 years.
4. On 01.05.2020, HIMSR issued a termination letter dt. 01.05.2020 terminating the services of plaintiff without assigning any reason. Defendant no.2 followed the suit and issued termination letter dt.06.05.2020 citing the termination letter issued by HIMSR as the reason. The impugned termination letter issued by HIMSR was withdrawn in a Writ Petition filed by plaintiff, which was communicated to defendant no.1. Defendant no.1, however, issued yet another termination letter on CS (COMM) 407/20 3 of 28 Dr.(Brig.)S.S.Anand Vs M/s. Clearmedi Healthcare Pvt. Ltd. & Anr. 30.05.2020 citing the expiry of contract as the cause of termination. It is stated that the appointment letter issued by defendant no.1 contains a clause which states that one month notice period to be given when terminating a faculty consultant. No notice was issued to plaintiff in this regard and there was no consultation held between defendant no.1 & defendant no.2 as was mandated in MOU.
5. It is stated that as per accounts maintained by plaintiff a total sum of Rs.27,57,914/- is due and payable by defendant-1. The plaintiff had issued a legal demand notice on 11.06.2020 seeking outstanding dues, however, defendant sent a misconceived reply denying all the outstanding.
6. The defendants put in appearance upon service of summons and filed written statements. Written statement was filed by defendant no.1 stating that the suit was barred by limitation and principle of estoppel by acquiescence. It was stated that as per the case of plaintiff himself the cause of action had arisen on 11.02.2013 since when the alleged deductions from the consultancy fee were made. The claim of the plaintiff can be confined only to a period of three years proceeding the suit.
7. It is stated that plaintiff was first appointed as HOD w.e.f 07.12.12 for a period of one year and his appointment was CS (COMM) 407/20 4 of 28 Dr.(Brig.)S.S.Anand Vs M/s. Clearmedi Healthcare Pvt. Ltd. & Anr. confirmed on 07.12.2013. The confirmation letters thereafter, were renewed on 07.12.16 for a period of one year; on 07.12.2017 and 07.12.2018 for extended period of 12 months each time. The consultancy fee was agreed to be payable @ 2 lakhs in the contractual appointment. The association came to an end on 06.12.2019, whereafter, the contract was not renewed. Plaintiff, however, continued to receive his monthly compensation of Rs.2 lakhs till March, 2020, which fact was communicated to the plaintiff. Defendant no.1 has denied the contents of plaint on merit.
8. Defendant no.2 filed written statement stating therein that the reliefs sought are against defendant no.1 and defendant no.2 is proforma party only.
9. The plaintiff on 07.12.2021 filed an application u/o 28 rule 1 r/w section 151 CPC and withdrew the prayer clause B & C i.e of declaration and mandatory injunction. The suit thus was restricted to the recovery of amount of Rs.27,57,914/-.
10. Replication was filed by plaintiff, wherein he reaffirmed the facts mentioned in plaint and denied the contents of written statement.
11. On pleadings of the parties, following issues were framed on 07.12.2021:-
CS (COMM) 407/20 5 of 28 Dr.(Brig.)S.S.Anand Vs M/s. Clearmedi Healthcare Pvt. Ltd. & Anr.
1. Whether the claimed amount in the suit is within limitation? OPP
2. Whether plaintiff is not entitled to recover the claimed amount being barred by principle of estoppal by acquiescence?
OPD
3. Whether plaintiff is entitled to the recovery of an amount of Rs.27,57,914/-
(which includes the sum of Rs.19,29,123/- as the balance unpaid amount and Rs.8,28,791/- as interest) from the defendant no. 1 towards consultancy fees for the period 2012 till 2020? OPP
4. Relief.
12. In support of its case plaintiff Dr. (Brig.) S.S.Anand tendered his evidence by way of affidavit as PW-1 and exhibited the documents as Ex.P1 to Ex.P17. Ex.P1 is true copy of appointment letter dt. 22.12.2012 issued to the plaintiff. Ex.P2 is MOU between D-1 and D-2. True copy of appointment letter issued by D1 to plaintiff is Ex.P3 (Original of this document was produced and returned). It is written in this document that the Managing Director of defendant no.1 was pleased to approve contractual appointment of plaintiff as HOD (Radiology) in Hamdard Imaging Center on salary of Rs.2,10,671/- p.m for a period of one year w.e.f 07.12.2012. Tenure of appointment has been mentioned as one year extendable by further period to its satisfactory work and conduct. It CS (COMM) 407/20 6 of 28 Dr.(Brig.)S.S.Anand Vs M/s. Clearmedi Healthcare Pvt. Ltd. & Anr. further says that 30 days prior notice will be required for either side and that contract could be terminated by institute by giving one month's notice or a month's salary in lie of prior notice. Witness is relying upon Ex.P4, which is the letter of confirmation issued by defendant no.1 to plaintiff stating that the plaintiff was confirmed to the position of HOD w.e.f 07.12.2013 and that all the other terms and conditions (of employment) remained unchanged. Plaintiff is further relying upon e-mails Ex.P5-A to Ex.P5-E. Ex.P5-A is the email dt.13.04.2017 wherein the plaintiff brought to the knowledge of Dr. Shashi that there is a payment deduction going on in his salary and he had suffered silently. He gave details of the money not paid to him. The mail says that the initial agreement for salary was Rs.2 lakhs which was raised to Rs.2,60,000/- in 2014. Plaintiff wrote to Dr. Shashi Balyan yet again on 26.02.2018 vide Ex.P5-B, wherein he discussed about his appraisal having not taken place. The mail was responded by Shashi Balyan by saying that they were in negative EBITDA in Hamdard. The department was not functioning smoothly. It is stated that the salary rise could be linked to EBITDA numbers and that the issue could be discussed in next meeting. Ex.P5-C is copy of Ex.P5-B only. Ex.P5-D is talking about revised Leave Rules. Vide e-mail dt. 29.01.2016 Ex.P5-E the plaintiff wrote yet again to Dr.Shashi stating that in the span of three years he was the only one who underwent a gross CS (COMM) 407/20 7 of 28 Dr.(Brig.)S.S.Anand Vs M/s. Clearmedi Healthcare Pvt. Ltd. & Anr. consultancy fee cut for a year while his juniors got fee hikes. He asked for reversal of his consultancy fee to its original agreed amount and appropriate appraisal. Ex.P6 is the office order dt. 20.03.2020 of defendant no.2, whereby teaching and non- teaching staff was told to remain at home. Vide Ex.P7 plaintiff and others were directed to work from home. Ex.P8 is the letter dt. 01.05.2020, whereby the services of plaintiff were terminated with immediate effect. Ex.P9 is the letter written by Ashish Pandey of defendant no.1 on 06.05.2020 terminating the services of plaintiff. The letter says that his dues will be cleared as per full and final policy in due course of time. Ex.P-10 is the High Court's order, whereby termination letter dt. 01.05.2020 was withdrawn by respondent no.2 (defendant no 2 herein). Ex.P-11 is letter dt. 21.05.2020 written by defendant no.2, whereby the termination letter was withdrawn. Ex.P-12 is e-mail dt. 26.05.2020 written by plaintiff to defendant no.1 intimating that they were not responding to his mails and his ID had been blocked. Ex.P-13 is letter dt. 30.05.2020 of defendant no.1, whereby defendant no.1 communicated to plaintiff that contract between the two stood expired on 06.12.2019, however, monthly emoluments were paid to plaintiff till March, 2020. The management decided to dissociate the engagement with plaintiff w.e.f. 01.05.2020. Ex.P-14 is legal notice sent by the plaintiff to the defendants. Ex.P-15 is computation of recoverable money which stands CS (COMM) 407/20 8 of 28 Dr.(Brig.)S.S.Anand Vs M/s. Clearmedi Healthcare Pvt. Ltd. & Anr. substituted by the calculation sheet filed by plaintiff on 17.02.2023. Ex.P17 is certificate u/s. 65-B of Indian Evidence Act.
13. In his cross-examination witness stated that he was receiving Rs. 2 lakhs per month from defendant no.1 from April, 2016 till the end of his association. He stated that he received Rs.2.6 lakhs per month as his consultancy fee from defendant no.1 for the period from August, 2014 to January, 2015. He stated that no agreement was signed for enhanced consultancy fee to be paid and volunteered that enhanced consultancy fee was for the services provided over and above the clinical services that he was providing. Reference was made to Ex.P5-A wherein amount of Rs. 2 lakhs was mentioned as consultancy fee. The witness, however, volunteered that as per original appointment letter the amount of Rs.2,10,000/- approx. was fixed. He denied that remunerations payable to him were variable and as per exigencies of work. After reading clause 9 of Ex.P3 witness volunteered that the change in his remuneration was not due to any change in exigencies or in work, rather it was pointed out that it was because of poor financial state of defendant no.1. Witness stated that he had protested about his emoluments vide Ex.P5-E and P5-B & P5-A.
14. Defendant in support of its case examined Sh.Sumit Goyal CS (COMM) 407/20 9 of 28 Dr.(Brig.)S.S.Anand Vs M/s. Clearmedi Healthcare Pvt. Ltd. & Anr. as DW-1. He exhibited documents as Ex.D1 to Ex.D7. D- 1 & D-2 are the documents authorizing him to depose on behalf of defendant no.1. Ex.D-3 is the undated appointment letter giving the posting to plaintiff for one year w.e.f 07.12.2016 at a consultancy fee of Rs.2 lakhs. It is stated by the witness that the consultancy was extended vide Ex.D-4 & D-5 for 12 months from 07.12.2017 to 07.12.2018. He is relying upon e-mail written to all the employees of defendant no.1 stating that on account of Covid-19 Pandemic 50% deduction was made applicable to all the employees. The witness stated that pursuant to the aforesaid email salary of plaintiff was cut by 50% and he was entitled only for Rs.1 lakh a month. Witness did not give any specific answer to the question whether he was part of decision making body regarding deduction made in the salary of plaintiff between 2015 to May, 2020. Witness stated that he did not know if signature appearing at the bottom of Ex.P3 were of the plaintiff. Witness stated that confirmation was in terms of Ex.P3 only and that he was not aware of the circumstances under which plaintiff was confirmed. Witness stated that he was not aware as to how Ex.D-4 & Ex.D-5 were served upon the plaintiff. He volunteered that usually the letters were handed over by HR department in person. Witness stated that 30 days written notice was not required for the termination letter dt. 06.05.2020. Witness admitted that Ex.D-3 to D-5 did not have signatures of plaintiff.
CS (COMM) 407/20 10 of 28 Dr.(Brig.)S.S.Anand Vs M/s. Clearmedi Healthcare Pvt. Ltd. & Anr.
15. Arguments were advanced by Sh.Ajay Dabas, Ld. Counsel for plaintiff as also by Ms.Gaganpreet Chawla, Ld. Counsel for defendant no.1 & Mr. Mohd.Waqas, Ld. Counsel for defendant no.2.
ISSUEWISE FINDINGS
16. Issue No. 1:- Whether the claimed amount in the suit is within limitation? OPP
17. It was argued by Ld. Counsel for defendant no.1 that the plaintiff having abandoned his prayer seeking declaration of termination letter as null and void, the defendant no.1 indirectly accepted his termination. The limitation for the purposes of recovery of his remunerations falls under Article 7 of the schedule of Limitation Act, considering from that aspect the suit filed for recovery of money for the dues from 2012 is beyond limitation.
18. Article 7 of Schedule providing period of limitations in Part II- SUITS RELATING TO CONTRACT says that the limitation for wages in the case of any other person (other than Seaman's) would be three years from the date when the wages accrue were due.
19. Ld. Counsel for plaintiff initially stated that the correct CS (COMM) 407/20 11 of 28 Dr.(Brig.)S.S.Anand Vs M/s. Clearmedi Healthcare Pvt. Ltd. & Anr. provision would be Article 113 of the Schedule. Article 113 makes provisions for suits for which there is no prescribed period and says that for such suit the three years limitation would be computed from the date when right to sue accrues.
20. The plaintiff is claiming his consultancy fee arising out of the contract entered into between the parties which has been exhibited as Ex.P-3 by the plaintiff in his evidence. The relief thus is arising out a contract and it is for the wages, the limitation therefore, would be computed from when the wages being claimed by the plaintiff became due and were not paid as per Article 7 of the Schedule to the Limitation Act. Ld. Counsel for the plaintiff conceded during arguments heard on limitation and had subsequently filed amended calculation in respect of the dues which were falling within the period of three years preceding the date of filings. The computation was filed on 17.02.2023 and defendant no.1 has also filed its objection to this computation. Part of suit of plaintiff therefore, is barred by limitation. The suit shall be considered for consultancy fee immediately three years prior to the date of filing suit i.e from 19.12.2017. The plaintiff has filed computation from January, 2018. The issue is partly decided in favour of plaintiff and partly in favour of defendant no.1.
21. Whether plaintiff is not entitled to recover the claimed CS (COMM) 407/20 12 of 28 Dr.(Brig.)S.S.Anand Vs M/s. Clearmedi Healthcare Pvt. Ltd. & Anr. amount being barred by principle of estoppal by acquiescence? OPD
22. It was argued by Ld. Counsel for defendant no.1 that plaintiff accepted in his cross-examination dt. 09.11.2022 that his appointment with defendant no.1 was contractual. He also admitted that terms and conditions of his contractual appointment were governed by Ex.P3. It was argued that plaintiff had entered into a contract with D-1 on 07.12.2012 and worked with defendant no.1 for more than 7 years till April, 2020. For the entire period of three years he has placed on record only three emails written by him to defendant no.1 and one e-mail written by director of defendant no.1 to him for the purposes of proving his claim. It is stated that in Ex.P (E) dt. 29.01.2016, the plaintiff admitted that his consultancy fee had undergone a cut for an year. It was argued that despite undergoing a fee cut plaintiff kept working with D-1 indicating that the fee cut was accepted and acted upon by him. Vide email plaintiff sought reversal of his consultancy fee to the originally agreed amount but did not claim past dues, the plaintiff thus acceded to the consultancy fee being paid to him by defendant no.1 at that time.
23. Defendant no.1 has thereafter, relied upon Ex.P-5A written on 13.04.2017, wherein the plaintiff has admitted having received different amounts for different period. He further CS (COMM) 407/20 13 of 28 Dr.(Brig.)S.S.Anand Vs M/s. Clearmedi Healthcare Pvt. Ltd. & Anr. stated that he was requesting vide said mail to correct the situation from whichever date it was felt that targets were achieved and do whatever else was deemed fit. The plaintiff thus gave a complete discretion to defendant no.1 and has not sought recovery of his dues. Ld. Counsel for defendant no.1 has also taken objection to the stand of plaintiff regarding amount of Rs.2.6 lakhs paid to him from August, 2014 to January, 2015.
24. Vide Ex.P-5C plaintiff sought appraisal and not recovery of past deductions. It was argued that from the e-mails it stood established the plaintiff had accepted the consultancy fee being paid to him by defendant no.1. He did not take concrete steps for enforcement of Ex.P3 and accepted the acts of defendant no.1 paying him consultancy fee at varied sums. He continued working with defendant no.1 without making any claim till his association was terminated by defendant no.1. It was argued that plaintiff thus gave acquiescence to an implied agreement between the parties, whereby lesser consultancy fee was being paid to him.
25. In support of her contention, Ld. Counsel for defendant no.1 relied upon judgment in The Chairman, State Bank of India & Anr. Vs. M.J. James, Civil Appeal No. 8223 of 2009, wherein the Hon'ble Supreme Court held that "doctrine of acquiescence is an equitable doctrine which CS (COMM) 407/20 14 of 28 Dr.(Brig.)S.S.Anand Vs M/s. Clearmedi Healthcare Pvt. Ltd. & Anr. applies when a party having a right stands by and sees another dealing in a manner inconsistent with that right, while the act is in progress and after violation is complete, which conduct reflects his assent or accord. He cannot afterward complain. In literal sense the term acquiescence means silent assent, tacit consent, concurrence or acceptance which denotes conduct that is evidence of an intention of a party to abandon an equitable right and also to denote conduct from which another party will be justified in inferring such an intention."
26. Ld. Counsel for defendant no.1 has also relied upon the judgment in Union of India & Ors. Vs. N.Murugesan etc. Civil appeal No. 2491/2492 of 2021 dt. 07.10.2021, wherein it was held that "as a consequence (of acquiescence), it reintroduces a new implied agreement between the parties. Once such a situation arises, it is not open to a party that acquiescence itself to insist upon the compliance of the original terms. Hence, what is essential, is the conduct of parties."
27. Relying upon the aforesaid judgments Ld. Counsel for defendant argued that since the plaintiff did not protest to the change in his consultancy fee at appropriate time he was in fact consented to the payment whatever was being paid to him and thus entered a new agreement with defendant no1 as per which defendant no.1 kept paying CS (COMM) 407/20 15 of 28 Dr.(Brig.)S.S.Anand Vs M/s. Clearmedi Healthcare Pvt. Ltd. & Anr. variable amounts to the plaintiff.
28. Ld. Counsel for plaintiff on the other hand argued that there was no acquiescence at any point of time. The plaintiff raised the issue of non appraisal and lesser consultancy fee being paid to him several times with defendant no.1 and also wrote the e-mails. It was argued that plaintiff was working with defendant no.1 and therefore, his asking for his consultancy fee and appraisal could be and was that of an employee in respectful manner only.
29. Record shows that plaintiff raised the issue of cut in his consultancy fee for the first time in 2016. Ld. Counsel for defendant no.1 argued that the plaintiff was seeking reversal of his original fee and not past consultancy fee. And the emails of 2016 & 2017 were barred by limitation . Ld. Counsel for plaintiff argued that these documents may not be read for extending limitation for the purposes of the dues which were time bound, however, the document do not lose their significance in conclusion of the fact that plaintiff had raised the issue of cut in his consultancy fee. He argued that the e-mail of 2016 written by plaintiff suggest that he did not silently acquiescences to the cut into consultancy fee resulting into a new contract having been created. Similarly, in the two subsequent e-mails the plaintiff raised the issue of cut in his consultancy fee and CS (COMM) 407/20 16 of 28 Dr.(Brig.)S.S.Anand Vs M/s. Clearmedi Healthcare Pvt. Ltd. & Anr. asked for appraisal, which in fact meant that he was not satisfied with the cut in the consultancy fee.
30. Relevantly, the plaintiff was paid an amount of Rs.2,60,000/- till January, 2015, whereafter, there was a cut in fee and he raised the issue of cut vide email dt. 29.01.2016. No response of this email was given by defendant no 1 in writing as it appears from the record. The plaintiff nonetheless continued to work with defendant no.1 without any protest. Plaintiff admittedly had a right under the law to ask for recovery of its dues in terms of contract and to take legal steps for non-payment of the same. The plaintiff, however, chose otherwise and continued to work with defendant no.1 at whatever consultancy fee was being paid to him. The plaintiff thus knowingly stood by, without raising any objection to the cut in his consultancy fee subsequent to the e-mails written by him and continued to work at the lower consultancy fee.
31. In view of the judgment in Union of India & Ors. Vs. N.Murugesan (Supra) the plaintiff by his conduct allowed defendant no.1 to reintroduce a new implied agreement whereby a lesser consultancy fee than what was entered into vide original agreement was accepted by him. It would be relevant to mention at this juncture that the plaintiff was admittedly being given a higher consultancy fee of Rs.2,60,000/- from August, 2014 to January, 2015.
CS (COMM) 407/20 17 of 28 Dr.(Brig.)S.S.Anand Vs M/s. Clearmedi Healthcare Pvt. Ltd. & Anr. The witness admitted in his cross-examination that he was receiving Rs.2,60,000/- per month as his consultancy fee from defendant no.1 for the period from August, 2014 to January, 2015. The witness stated that enhanced consultancy fee was for extra services provided by him over and above the clinical services provided by him. Relevantly, no such plea was taken by the plaintiff in his plaint. He has not stated that any revised agreement was executed between him and defendant no.1 for increased consultancy fee paid to him from August, 2014 to January, 2015.
32. The plaintiff thus accepted the consultancy fee at enhanced rate without any agreement; he also accepted the reduced consultancy fee and continued to work though no positive response to his request for reversal of consultancy fee was given by defendant no.1. The plaintiff has not been able to point out to any document whereby the defendant admitted its liability to pay the difference of consultancy paid and consultancy agreed. The plaintiff therefore, after his termination cannot claim that he was entitled for consultancy fee at the rate of Rs. Rs.2,10,671/- as per initial agreement Ex.P3 all throughout, he having accepted varied amounts given to him as consultancy fee over the period of time. The issue is therefore, decided in favour of defendant no.1 and against the plaintiff.
CS (COMM) 407/20 18 of 28 Dr.(Brig.)S.S.Anand Vs M/s. Clearmedi Healthcare Pvt. Ltd. & Anr.
33. Issue No.3:- Whether plaintiff is entitled to the recovery of an amount of Rs.27,57,914/- (which includes the sum of Rs.19,29,123/- as the balance unpaid amount and Rs.8,28,791/- as interest) from the defendant no. 1 towards consultancy fees for the period 2012 till 2020? OPP
34. A part of amount claimed by the plaintiff has already been held to be barred by limitation. Ld. Counsel for plaintiff filed details of dues that as per plaintiff fell within limitation. As per plaintiff he is entitled for salary dues from January, 2018 to December, 2018 amounting to Rs.1,28,052/-; salary dues from January, 2019 to December 2019 amounting to Rs.1,28,052/- and salary dues from January, 2020 to March, 2020 amounting to Rs.32,013/-. The amount has been computed on the basis of lesser amount paid to the plaintiff, claiming the actual salary to be Rs.2,10,671/- as against the paid amount of Rs.2 lakhs per month. The recovery for deficient salary therefore, is computed by multiplying Rs.10,671 with 27 for salaries for the months of January, 2018 to March, 2020.
While deciding issue no.2 hereinabove, it has been held that plaintiff had in fact by silent acceptance of lesser consultancy fee being paid to him acquiesced to the act of defendant no.1. He is as such held not entitled for recovery of aforesaid amount on account of lesser consultancy fee CS (COMM) 407/20 19 of 28 Dr.(Brig.)S.S.Anand Vs M/s. Clearmedi Healthcare Pvt. Ltd. & Anr. given to him.
35. The plaintiff is further seeking payment of salary for the months of April, 2020 and May, 2020 as no salary was paid to him for these two months and one month's salary in view of termination without any notice period in terms of clause of appointment letter. It is an admitted case of the parties that plaintiff was issued two termination letters dt.06.05.2020 and 30.05.2020. Ex.P9 is the first letter written by defendant no.1 to the plaintiff on 06.05.2020 at 6.33 pm. In the said letter it is written as under:-
".............I am writing this email just to inform you in writing as well that in reference to the Relieving letter issued to you from Hamdard Institute of Medical Sciences and Research (Hamdard Nagar, New Delhi-110062) with Reference No. HIMSR/HR/2020-
21/05 dt.1st May'20 and as per Tripartite Agreement held between you, society (Jamia) & Clearmedi Healthcare Pvt. Ltd.; in turn your services towards Clearmedi at Hamdard Imaging Center also comes to a closure w.e.f 1st May' 20. Your all dues will be clear as per the Full and Final policy of the organization in due course of time.
CS (COMM) 407/20 20 of 28 Dr.(Brig.)S.S.Anand Vs M/s. Clearmedi Healthcare Pvt. Ltd. & Anr.
36. A bare reading of this email would suggest that the reason of closure of service of the plaintiff was termination letter issued by HIMSR. Relevantly, the plaintiff had filed a writ petition before the Hon'ble High Court being W.P (C) 3137/2020 titled Dr. (Brig) S.S.Anand Vs. Jamia Hamdard University challenging the termination letter issued by defendant no.2 HIMSR. Counsel Defendant No.2 (Respondent no 2 in Writ Petition) gave a statement in the court: ....... on instructions the impugned termination letter dt. 01.05.2020 stands withdrawn.... The liberty was taken from the court for taking fresh action as per rules. Therefore, the basis relying on which plaintiff's services were closed by defendant no.1 stood withdrawn on 20.05.2020.
37. Thereafter, defendant no.1 issued a fresh letter to plaintiff on 30.05.2020 which has been exhibited as Ex.P-13. It is written in this letter that the contract between the parties expired on 06.12.2019 but was not extended. The letter says that management had decided to dissociate engagement with plaintiff w.e.f 01.05.2020, closing all the mode of his association with the defendant no.1.
38. It is the argument of defendant no.1 that the agreement between plaintiff and defendant no.1 was contractual and was being extended on year to year basis and the same CS (COMM) 407/20 21 of 28 Dr.(Brig.)S.S.Anand Vs M/s. Clearmedi Healthcare Pvt. Ltd. & Anr. stood terminated in December, 2019 with conclusion of the extension agreement of 2018; while plaintiff claims that agreement was executed initially for one year. After conclusion of one year plaintiff was given a permanent posting. There was no extension of agreement on year to year basis and therefore, his services could not automatically be terminated in December, 2019.
39. The plaintiff in support of its contentions has placed reliance on Ex.P3. This is the agreement signed by Dr. Shashi Balyan and accepted by plaintiff. Relevant terms of the contract are that the contract was to be for the period of one year w.e.f 07.12.2012 and could be terminated by the institute by giving one month's notice or one month's salary in lieu of prior notice. The plaintiff is also relying upon Ex.P4 which is also signed by Dr. Shashi Balyan on behalf of defendant no.1. The document is titled confirmation letter and is addressed to plaintiff. It says that the plaintiff had been confirmed to the position of HOD w.e.f 07.12.2013 consequent to his successful completion of probation period with defendant no.1. It further says that all other terms and conditions remained unchanged. It is plea of plaintiff that vide Ex.P4 his employment with D-1 became permanent and there was no year to year extension being granted. On the contrary, Ld. Counsel for defendant no.1 argued that plaintiff has admitted in his evidence that his appointment with CS (COMM) 407/20 22 of 28 Dr.(Brig.)S.S.Anand Vs M/s. Clearmedi Healthcare Pvt. Ltd. & Anr. defendant no.1 was contractual and that Ex.P-4 itself says that all the terms and conditions of employment were to remain unchanged.
40. On this issue DW-1 in his cross-examination was specifically suggested that the plaintiff was a confirmed employee in terms of Ex.P4. The witness replied that by confirmation it was meant that employer before removal of the employee from the services had to assign the reasons. Ld. Counsel for defendant no.1 failed to explain as to what were the reasons assigned for terminating the services of plaintiff. The defendant is placing reliance in support of its contention on Ex.D-3, which is a verbatim copy of Ex.P3. The only variations are salary having been written as Rs.2 lakhs per month and the date of his joining is mentioned as 07.12.2016. This document does not have any signature or acknowledgment of the plaintiff. DW-1 in his cross-examination admitted that this document did not have signature of plaintiff.
41. Defendant no.1 is relying upon Ex.D-4 and D-5 stating that these were the letters of extension of contract between plaintiff and defendant no.1 from 07.12.2017 to
07.12.2018 for a period of one year. These letters have been denied by plaintiff in his affidavit of admission and denial categorically. DW-1 admitted in his evidence that these documents did not bear signature of plaintiff. In his CS (COMM) 407/20 23 of 28 Dr.(Brig.)S.S.Anand Vs M/s. Clearmedi Healthcare Pvt. Ltd. & Anr. cross-examination he stated that he was not aware by what mode the two letters were served upon plaintiff. He stated that usually the HR persons meet and hand over the letters in person.
42. The plaintiff having categorically denied these documents, onus on defendant no.1 to prove these documents was stricter. Defendant no.1 has done nothing except for having tendered these documents in the evidence of DW-1. It has failed to prove that Ex.D-3 was ever executed between plaintiff and defendant no 1 and plaintiff had accepted the terms. Clearly the portion of acceptance by plaintiff is blank and is unsigned. Defendant no 1 has also failed to prove service of Ex.D-4 & D-5 upon plaintiff, whereby the services of plaintiff were allegedly extended. The defendant no.1 therefore, has failed to prove that the plaintiff was working with defendant no.1 on an year to year contract basis and that his contract was being extended every year for a period of one year. With that defendant no.1 also failed to prove that contract of plaintiff with defendant no.1 stood terminated from December, 2019 and that excess payment was made to plaintiff for the months of January, February and March. It is settled law that mere pleading of a party cannot be substituted for evidence.
43. The services of plaintiff were thus not terminated by CS (COMM) 407/20 24 of 28 Dr.(Brig.)S.S.Anand Vs M/s. Clearmedi Healthcare Pvt. Ltd. & Anr. serving upon him a proper one month's notice of termination as per requirement of Ex.P3. The plaintiff therefore, was entitled for salary of April, 2020. In so far as salary for the month of May, 2020 is concerned defendant no.1 is relying upon termination letter dt. 06.05.2020. A perusal of Ex.P9 would show that there is no reason given for termination of service except for stating that since the plaintiff was relieved by Hamdard Institute of Medical Sciences and Research, therefore, in terms of tripartite agreement held between plaintiff, Jamia and D-1 the services towards defendant no.1 at Hamdard Imaging Center also come to a closure w.e.f 01.05.2020. The defendant no.1, therefore, did not terminate the services of plaintiff vide Ex.P-9. The document in fact merely conveyed to the plaintiff that as a necessary corollary of his reliving from HIMSR his services automatically stood closed with defendant no.1.
44. DW-1 in his cross-examination has sated that after his confirmation plaintiff was to be given grounds for his termination. The plaintiff thus could not be removed without assigning grounds for termination. If relieving of plaintiff from HIMSR is considered as the ground for closure of his services with defendant no.1, such closure would automatically stand withdrawn in view of withdrawal of termination letter dt. 01.05.2020 (Ex.P-8) issued by HIMSR. There was thus no termination letter CS (COMM) 407/20 25 of 28 Dr.(Brig.)S.S.Anand Vs M/s. Clearmedi Healthcare Pvt. Ltd. & Anr. giving reasons for termination issued to plaintiff by defendant no.1 in terms of Ex.P-3. In fact, Ex.P-11 also does not give any reason for termination of plaintiff from the services and though the plaintiff has withdrawn his relief against the two termination letters; the relief claimed by him for recovery of his consultancy fee for the period of May, 2020 is seeming bonafide on combined reading of Ex.P-3, Ex.P-9, Ex.P-10 and Ex.P-11. It having been concluded that the services of plaintiff were not closed vide Ex.P-9, in view of withdrawal of Ex.P-8 by HIMSR as per Ex.P-10, the plaintiff is entitled for his salary for the month of May, 2020.
45. The plaintiff is also claiming consultancy fee in lieu of one month's notice, which the defendant no.1 was expected to serve upon plaintiff in terms of clause 6 of Ex.P-3. The clause categorically says that the contract could be terminated by the institute by giving one month's notice or one month's salary in lieu of prior notice. As stated hereinabove the defendant no.1 has failed to prove that the contract between it and plaintiff stood concluded in December, 2019, it was liable under Ex.P-3 to give a proper termination letter giving one month's notice to the plaintiff. The defendant no.1 has not proved any document which could be called one month's notice and is therefore, liable to pay consultancy fee of one month to the plaintiff in lieu of prior notice of one month.
CS (COMM) 407/20 26 of 28 Dr.(Brig.)S.S.Anand Vs M/s. Clearmedi Healthcare Pvt. Ltd. & Anr.
46. It is therefore, concluded that the plaintiff was entitled for consultancy fee for the months of April & May, 2020 and a month's consultancy fee/salary in lieu of prior notice. The relevant question now would be as to what would be the amount of consultancy fee/salary. It has been held under issue no.2 that the plaintiff had silently accepted the consultancy fee/salary being given to him. He therefore, shall be entitled to the salary at the rate last drawn by him. As per the computation filed by plaintiff Ex.P-15, he was paid an amount of Rs.1,80,000/- in January, February and March, 2020. He is therefore, entitled for three months salary as held hereinabove @ Rs.1,80,000/- amounting to Rs.5,40,000/-.
47. The plaintiff has filed suit for recovery of Rs.27,57,914/- alongwith pendente lite and future interest. No specific prayer has been made for the payment of interest though the same has been categorically stated in the cause title. In the amount of Rs.27,57,914/- the plaintiff has included interest payable to him in Ex.P-15, however, the rate at which this interest has been calculated has not been mentioned in this document. The plaintiff has prayed for-
"any other relief or further reliefs"- in the prayer clause. The plaintiff has been deprived of his entitlement of aforesaid amount of Rs.5,40,000/-, which he was entitled to recover by the month of May, 2020 itself. Having regard CS (COMM) 407/20 27 of 28 Dr.(Brig.)S.S.Anand Vs M/s. Clearmedi Healthcare Pvt. Ltd. & Anr. to the nature of commercial transaction, this Court is of the view that interest @ 10% per annum is reasonable and would serve the ends of restitutive justice. Plaintiff is entitled to the said interest from June, 2020 till the realization of the entire amount.
48. Issue No.4 Relief: In result, in view of the aforenoted findings, a decree is hereby passed in favour of plaintiff and against the defendant in the sum of Rs.5,40,000/-. alongwith interest @ 10 % per annum from the date of filing of present suit till its realization. Suit accordingly stands decreed in favour of plaintiff. Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
(ANURADHA SHUKLA BHARDWAJ) District Judge (Commercial Courts)-02, South District, Saket, New Delhi.
Announced in the open court on 03.05.2024 CS (COMM) 407/20 28 of 28 Dr.(Brig.)S.S.Anand Vs M/s. Clearmedi Healthcare Pvt. Ltd. & Anr.