Delhi District Court
Suit No. 511/ vs M/S Mankind Pharma Ltd on 31 October, 2013
IN THE COURT OF MS. NITI PHUTELA
CIVIL JUDGE02,SOUTH DISTRICT, NEW DELHI
Suit No. 511/11
Ms. Hanmeet Kaur
W/o Sh. Manish Anand
R/o C18, First Floor,
Om Vihar, Gulab Bagh,
Front Portion
Uttam Nagar, New Delhi. .......Plaintiff
Versus
M/s Mankind Pharma Ltd
Through its Director/Principal Officer
Having its office at:
236, Okhla Industrial Estate, Phase III
New Delhi 110020 .......Defendant no.1
Sh. Shanker Lal Balani
Zonal Sales Manager
M/s Mankind Pharma Ltd
236, Okhla Industrial Estate, Phase III
New Delhi 110020 .......Defendant no.2
Date of Institution : 12.10.2011
Date of reserving the Order : 29.10.2013
Date of pronouncement : 31.10.2013
JUDGMENT:
1. The present suit is filed by plaintiff against defendants seeking Suit No. 511/2011 Page No. 1 of 22 declaration to the effect that the action of defendants in terminating the services of plaintiff as illegal, null and void and plaintiff is still in the service of defendant no.1. The plaintiff has also sought the relief of mandatory injunction in the form of direction to the defendant no.1 to take back the plaintiff on her services alongwith all the consequential benefits as per her appointment and also for recovery of sum of Rs. 1,48,500/ as detailed by plaintiff in the body of the suit and costs of the suit.
2. It is the case of plaintiff that plaintiff was appointed on the post of Supervisor by defendant no.1 and an appointment letter was issued to her which is dated 04.06.2011 and from the same date the plaintiff joined the services of defendant no.1. The plaintiff was appointed at annual package of Rs. 109460/ beside other benefits, incentives and alongwith daily allowance of Rs. 155/ per day. It is the version of plaintiff that she was doing her duty with complete dedication and upto the satisfaction of defendant but she was surprised to know that she was not being paid her complete salary as per the terms of her appointment.
3. It is the case of plaintiff that her monthly salary was Rs. 7500/ but Suit No. 511/2011 Page No. 2 of 22 plaintiff was paying her only Rs. 6500/ per month, therefore, she contacted defendant no.2 and it was assured to her that her balance salary would be disbursed alongwith all the benefits. But later on, on one pretext or the other the said issue was used to be postponed by defendant no.2. The plaintiff again contacted defendant no.2 in the last of August 2011 regarding the release of her salary but instead of hearing her the defendant no.2 got angry and annoyed and orally asked the plaintiff that she was not required to come again to the office in the month of September 2011 and told that her services have been terminated. The plaintiff tried to pacify and talk to defendant no.2 but he was not ready to listen to her. As per plaintiff no notice of termination of her services was issued to her in writing and on 01.09.2011 when she went to the office for joining her duties she was not allowed to do the same on the ground that her services have been terminated.
4. It is averred by plaintiff that by adopting the abovesaid procedures the defendants have harassed and humiliated the plaintiff and are illegally withholding the following lawful dues of the plaintiff:
(i) Daily allowance of Rs. 5500/.Suit No. 511/2011 Page No. 3 of 22
(ii) Incentive of Rs. 15,000/.
(iii) Balance salary amount for sum of Rs. 1000/ per month upto August 2011.
Hence, as per plaintiff by withholding the abovesaid amount the defendants are exploiting the plaintiff without any fault on her part and she has been rendered jobless. Therefore, she is also entitled to damages for Rs. 1,00,000/ towards mental pain and agony and also litigation expenses.
5. The plaintiff also got issued a notice dated 21.09.2011 against the defendant calling them to immediately take her back on her duty on the previous terms and conditions of her appointment within seven days from receiving the same. Despite duly receiving the said notice the defendants have failed to comply with the same and therefore, the present suit is filed against defendants.
6. Summons were issued against the defendants and they appeared through their counsel and filed their joint WS. In the WS filed by the defendants, the defendants have objected to the suit of the plaintiff on the ground that plaintiff has concealed material facts from this court as she herself stopped coming to the office Suit No. 511/2011 Page No. 4 of 22 voluntarily as the detailing chart which she was mandatorily required to maintain is only till 06.08.2011 which shows that she had not joined her duties after this period. It is also averred by defendant that services of defendant have never been terminated, rather she herself out of her own volition stopped coming to the office. As per defendants in view of the abovesaid facts the suit of the plaintiff is without any cause of action because nothing is there on record to show that services of plaintiff have been terminated by defendant no.1. It is averred by defendants that though defendant no. 1 is fully competent to initiate appropriate disciplinary proceedings against plaintiff but considering her age and the fact that her carrier is at very initial stage, therefore, no action was taken by defendant no.1 against plaintiff.
7. As per defendant, though plaintiff was offered a gross salary of Rs. 7500/ per month but the same was subject to statutory deductions towards the PF and ESI which comes around Rs. 780/ and Rs. 132/ respectively. The abovesaid amounts were to be deducted from her gross salary which after deduction comes to Rs. 6588/. It is the version of defendant that plaintiff was paid salary for the Suit No. 511/2011 Page No. 5 of 22 complete month of August despite the fact that she reported on duty only till 06.08.2011. Apart from this as per defendant the entitlements of plaintiff are as follows:
(i) Bonus for year 201112 for Rs. 1418/.
(ii) LTA Rs. 283/.
(iii) Leave encashment Rs. 893/.
8. The abovesaid amounts comes upto Rs. 2594/, however an amount of Rs. 3000/ as imprest was already disbursed to the plaintiff vide letter dated 29.06.2011 of defendant no.1. Hence, as per defendant rather defendant no.1 is entitled to recover an amount of Rs. 6454/ from the plaintiff which is the excess salary paid to her by defendant no.1 for the complete month of August 2011 while she worked in the company only till 06.08.2011. It is also objected by defendant that the suit of the plaintiff is lacking material particulars because she has not clearly stated that how she is entitled to the amount which are claimed by her and how mental agony and pain has been caused to her by the defendants. On merits apart from the abovesaid averments the defendant also stated that though defendants have not contacted her after she stopped visiting the Suit No. 511/2011 Page No. 6 of 22 office but the claim/entitlement of the plaintiff was prepared by the official and was kept ready at its end. It is also replied by defendant that the anomalies in the notice sent by plaintiff were pointed out by the defendants but the same is deliberately not filed by plaintiff which defendant has filed on record. It is in this background prayed by defendants that the suit of the plaintiff is liable to be dismissed.
9. In replication to the WS filed the plaintiff has denied the averments of defendant and reasserted and reiterated the facts of the plaint.
10.Out of the pleadings of the parties following issues were carved out by Ld. Predecessor Judge:
Issue No.1: Whether the plaintiff is entitled to the decree of declaration as prayed for?OPP Issue No.2: Whether the plaintiff is entitled to the decree of mandatory injunction as prayed for?OPP Issue No.3: Whether the plaintiff is entitled for recovery of Rs. 1,48,500/? OPP Issue No.4: Whether the plaintiff has no cause of action? OPD Issue No.5: Relief.
11.The plaintiff in order to shed the onus on her shoulders got herself examined as PW1 she filed her affidavit which was Ex.PW1/A. She relied upon documents such as appointment letter Ex.PW1/1, legal Suit No. 511/2011 Page No. 7 of 22 notice is marked as mark B and incentive policy is marked as mark A, postal receipts are Ex.PW1/2 and Ex.PW1/3, courier receipts are Ex.PW1/4 and Ex.PW1/5. Apart from her, no other witness was examined by plaintiff and plaintiff's evidence was closed by the statement of plaintiff on 14.03.2013.
12.On the other hand, defendant got examined Sh. Sanjeev Kumar Singh, AGM (Legal) & Company Secretary in the defendant company as DW1 and filed on record his evidence Ex.DW1/A and relied upon documents such as board resolution Ex.D1, sales details prepared by plaintiff upto 06.08.2011 is Ex.D2 (colly), letter of entitlement of salary is Ex.D3, document i.e. letter dated 29, June 2011 has already been exhibited as Ex.PW1/D1. Vide separate statement of Ld. counsel for defendant, defendant's evidence was closed on 17.04.2013.
13. Arguments addressed. Heard. Record perused.
14. My issue wise findings on the issues framed are as follows: Issue No.1 and Issue no.2: Whether the plaintiff is entitled to the decree of declaration as prayed for?OPP;
Whether the plaintiff is entitled to the decree of mandatory Suit No. 511/2011 Page No. 8 of 22 injunction as prayed for?OPP
15.Both these issues are taken up together being interlinked. The onus to prove both the said issues was upon the plaintiff. The plaintiff has sought the prayer regarding the fact that the act of the defendants in terminating her services be declared null and void and she be declared still in services of defendant no.1. It is the case of plaintiff that the services of plaintiff were orally terminated by defendant no.1 on 01.09.2011 when she went to join her duties and no letter of terminating her services were issued to her. On the other hand, it is the version of defendant that the plaintiff voluntarily stopped coming to the office and her services have not been terminated by defendant no.1. Before discussing the said issue on merits it is relevant to mention here that after completion of trial when the case was at the stage of addressing arguments it was questioned by this court to defendants that what is the status of plaintiff in its roles and it was stated by counsel for defendants that though she was not having any status in her pay roles but formally her services were not terminated. The case was then adjourned for further arguments on the NDOH i.e. 29.10.2013. On the NDOH, it Suit No. 511/2011 Page No. 9 of 22 was submitted by both the parties that the services of plaintiff were terminated by defendant no.1 by written notice dated 03.09.2012. Therefore, before pronouncing orders the services of plaintiff were terminated by defendant no.1 which is not disputed. Hence, the prayer of the plaintiff for granting declaration that she is still on the pay roles of defendant no.1 therefore has become infructuous and defendant no.1 cannot be ordered or directed to take her back on the services as that would amount to enforcement of service contract. Moreover, it is the settled position through catena of judgments that the declaration to the effect that the employee after termination of services on the basis of alleged illegal acts of defendant could not be granted because that would tantamount to enforcement of service contract which is not permissible by law.
16.It is worth mentioning the judgment of Hon'ble Delhi High Court in case titled St. John's School & Anr. Vs. Asha Bhan Decided on 19.07.2012 wherein Hon'ble High Court has discussed various judgments of Hon'ble Supreme Court wherein it has been held by Apex Court on various occasions that in case of unlawful termination of services no declaration to the said effect is granted Suit No. 511/2011 Page No. 10 of 22 and the proper recourse available with the employee is to file suit for the damages only.
"It was held by the Supreme Court in Vaish Degree College, Shamli & Ors. v. Lakshmi Narain & Ors. AIR 1976 SC 888 that a contract for personal service cannot be specifically enforced and a court normally would not give a declaration that the contract subsists and such an employee even after having been removed from service cannot be deemed to be in service against the will and consent of the employer. This rule is subject to three wellrecognised exceptions: (i) where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India; (ii) where a worker is sought to be reinstated on being dismissed under the Industrial Law; and (iii) where a statutory body acts in breach or violation of the mandatory provisions of the statute. In Pearlite Liners (P) Ltd. v. Manorama Sirsi (2004) 3 SCC 172, the Supreme Court observed that a case of private employment would normally be governed by the terms of the contract between the parties. In Sanjay Gupta (Dr.) v. Shroff's (Dr.) Charity Eye Hospital 2002 VII AD (Delhi) 580, this Court held that if termination of services of the appellant was illegal, his remedy was to file a suit for damages".
17. Therefore, from the abovesaid judgments it is evident that even in the case of unlawful/illegal termination of services a declaration to the said effect cannot be granted and as already observed that it is not in dispute that the services of plaintiff have been terminated by a notice dated 03.09.2013. Hence, in the light of abovesaid Suit No. 511/2011 Page No. 11 of 22 judgment no declaration sought by plaintiff can be granted in her favour and on the same grounds mandatory injunction as prayed by the plaintiff also cannot be issued in her favour. Therefore, the issue no.1 and 2 are decided against the plaintiff and in favour of defendants.
Issue No.3: Whether the plaintiff is entitled for recovery of Rs. 1,48,500/? OPP
18.The onus to prove this issue was placed upon plaintiff. The basis for seeking this prayer by plaintiff is that her monthly salary was Rs. 7500/ per month but defendants were paying her only Rs. 6500/ per month and apart from this she was also entitled to incentives as per policies of defendant no.1 and daily allowance @ Rs. 155/ per day. Apart from these entitlements the plaintiff has also sought Rs. 1,00,000/ as compensation for mental pain and agony caused to her and the litigation expenses.
19.To support her version plaintiff has relied upon her letter of appointment dated 04.06.2011 as per which her annual package was Rs. 1,09,460/ which included the basic salary of Rs. 7500/ per month, PF Rs. 9360/, LTA Rs. 1700/ and bonus for the sum of Rs. 8400/. In this regard it was deposed by DW1 that the gross salary Suit No. 511/2011 Page No. 12 of 22 of plaintiff was Rs. 7500/ but the same was subject to statutory deduction towards the PF and ESI which comes around Rs. 780/ and Rs. 132/ respectively. It was also explained by DW1 that the part of the PF which was to be contributed by employer was not included in sum of Rs. 7500/ and is separately mentioned at point 7 in document ExPW1/1 which is for the sum of Rs. 9360/ but the said amount of Rs. 7500/ included the part of PF and ESI which was to be contributed by employee herself and was to be deducted for the said purpose. He further explained that the basic salary of plaintiff was Rs. 6700/ and not Rs. 7500/ and the part to be contributed by employer is 12% of Rs. 6500/ which is the minimum basic salary provided in the Provident Fund Act. The contribution made by employee is also calculated in the same manner.
20.Therefore, from the abovesaid discussion on the testimony of DW1 it is evident that the explanation put forward by DW1 is plausible because as per the provisions of Provident Fund Act the part of PF and ESI which is to be contributed by the employee is included in the salary which is subject to deduction from the basic salary. Suit No. 511/2011 Page No. 13 of 22
Therefore, it is evident that plaintiff is not entitled to claim the balance of Rs. 1000/ per month pertaining to her salary from June 2011 upto August 2011.
21. As regards the incentive claimed by plaintiff for the sum of Rs. 15000/ she deposed while being cross examined that the same is calculated on the basis of targets fulfilled by the salesman. She also admitted that the calculation regarding incentive in proportion of her targets achieved by her was not mentioned in her affidavit Ex. PW1/A. Though plaintiff has also filed on record a copy of a policy which is Mark A, dated 01.06.2011 by which incentive policy of Supervisors is prescribed but in the same various slabs are also mentioned, so it was upon plaintiff to show that during her tenure in defendant no.1 company she fell under which slab and was entitled to how much percentage of incentive. Therefore in the absence of the same no relief in this regard can be granted in her favour because onus was upon her to prove the same which she failed to shed.
22.In respect to daily allowance as per document Ex. PW1/1 she was entitled to daily allowance @ Rs.155/. Pertaining to this on being Suit No. 511/2011 Page No. 14 of 22 cross examined the plaintiff admitted that an amount of Rs 3000/ was received by her for the month of June and also the same amount for the month of July, 2011 as conveyance allowance which was over and above her salary of Rs. 7500/ she also admitted that she had received the allowances as per her entitlement but not expenses. She admitted the document Ex. PW1/D1 which showed that a cheque for sum of Rs. 3000 dated 29.06.2011 was issued in her favour as imprest. Therefore plaintiff herself admitted that she had received all the allowances as per her entitlement.
23.It is the version of defendant that her bonus for year 201112, LTA and leave encashment comes upto Rs. 2594 and she was rather paid Rs. 3000 in advance, so nothing was due in her favour. But she denied receiving of any kind of expenses. However, as per defendant even the expenses were paid to her as per document Ex. D3. Therefore by relying upon this document the onus was again shifted upon plaintiff to disprove that the same was not paid, but she failed to file even a single document to show that the same was not received by her, hence she even failed to prove her entitlement in regard to expenses also.
Suit No. 511/2011 Page No. 15 of 22
24.It is also relevant to mention here that defendant has claimed that it has already paid sum of Rs. 6454/ in excess to plaintiff for 25 days of her salary because she worked in the defendant company only till 06.08.2011 and not for the complete month of August as alleged by her. In this regard it was deposed by PW1 that on 01.09.2011 she was not allowed to join her duties and was informed that her services have been terminated. She stated that she has filed sales report only till 07.08.2011 as she was informed that the rest of the reports have to be filed collectively. PW1 also deposed that all the reports are still in her possession because she was not allowed to join her duties. Later on she stated that all the reports pertaining to August 2011 were sent to defendant company by courier. In this regard she also deposed that if she had not worked for complete month of August she would not have got the salary for the complete month.
25.On the other hand, pertaining to this DW1 deposed that the last working day of plaintiff was 06.08.2011 and the reports were approved after the submission of the same by the employees and that is why the document ExD2 is bearing the stamp of 18.08.2011. Suit No. 511/2011 Page No. 16 of 22
considering the testimonies of both the parties in this regard and perusing the document ExD2 this court is of the view that the version of defendants on the basis of preponderance of probabilities seems to be correct because the reports filed by plaintiff with defendant no.1 are only till 06.08.2011. Neither the plaintiff has filed the courier receipts nor she has placed on record the reports pertaining to the complete month of August on court record to show that the said reports were sent by her to defendant company through courier and the same are still in her possession. Moreover as already observed she has herself admitted that no letter in writing was ever written by her questioning the defendant regarding the alleged acts on her part which also shows that such behaviour is not that of a reasonable or rational person because if she was not allowed to join her duties atleast a protest letter should have been written by her but the same has not been done in the present case. Therefore, plaintiff has failed to show that she was not allowed to join her duties in September 2011 rather defendant has been able to show that she voluntarily stopped coming to the office after 06.08.2011, therefore, the version of defendants is correct that she Suit No. 511/2011 Page No. 17 of 22 has been paid salary in excess for 25 days.
26.Hence, in view of the abovesaid discussion, it is apparent that though no written letter was written by plaintiff but on the other hand there was a lapse on the part of defendant also for which defendant has to compensate the plaintiff but plaintiff has not quantified that how the said acts of defendants have caused mental pain and agony to her.
27. It was held in the judgment of St. John's (supra) that damages for mental agony, harassment and pain have to be quantified and in the absence of the same no damages can be granted in favour of the plaintiff. It is also held in the said judgment of St. John's (Supra) that there is no fixed criteria for granting the damages for unlawful termination of services of employee and the same depends upon case to case. In the said judgment the Hon'ble Court discussed the various judgments of Hon'ble Supreme Court and other Hon'ble High Court, the relevant portion of the said judgment are as follows:
"In S.S.Shetty (supra) wherein it was held that no compensation can be claimed in respect of injury done to the servant‟s feelings by the circumstances of the dismissal.
I, however, notice that there has been some shift in the approach of Suit No. 511/2011 Page No. 18 of 22 the Apex Court, with respect to payment of back wages, in case the dismissal of the employee from service is found to be bad in law. In P.G.I of Medical Education and Research Chandigarh v. Raj Kumar (2001) 2 SCC 54, the Supreme Court observed as under:
"Payment of backwages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no straightjacket formula can be evolved, though, however, there is statutory sanction to direct payment of backwages in its entirely. As regards the decision of this Court in Hindustan Tin Works (P) Ltd. be it noted that though broad guidelines, as regards payment of backwages, have been laid down by this Court but having regard to the peculiar facts of the matter, this Court directed payment of 75% backwages only."
In U.P. State Brassware Corporation Ltd. & Anr. v. Udai Narain Pandey AIR 2006 SC 586, the Supreme Court inter alia observed as under: "A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an industrial court shall lose much of its significance. The changes brought about by the subsequent decisions of this Court probably having regard to the changes in the policy decisions of the government in the wake of prevailing market economy globalization, privatization and outsourcing is evident." In Allahabad Jal Sansthan v. Daya Shankar Rai and Anr. (2005) IILLJ 847 SC, the Supreme Court inter alia observed as under: "We have referred to certain decisions of this Court to highlight that earlier in the event of an order of dismissal being set aside, reinstatement with full backwages was the usual result. But now with the passage of time, it has come to be realized that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all, for a period that was spent unproductively, while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed. It is necessary for us to develop a pragmatic approach to problems dogging industrial relations. However, no just solution can be offered but the golden mean may he arrived at." In Kendriya Vidyalaya Sangathan & Anr. v. S.C.Sharma (2005) IILJ 153 SC, the Supreme Court granted only 25% of total backwages to the respondent. In Hindustan Motors Ltd. v. Tapan Kumar Suit No. 511/2011 Page No. 19 of 22 Bhattacharya & Anr. (2002) IILLJ 1156 SC, the Supreme Court awarded 50% of the backwages till the date of reinstatement of the respondent. In U.P. State Electricity Board v. Laxmi Kant Gupta 2009 LLR 1, the Supreme Court referring to its decision in U.P. State Brassware Corporation Ltd. (supra) and Haryana State Electronics Development Corporation v. Mamni AIR 2006 SC 2427 inter alia observed as under: "Thus it is evident that there has been a shift in the legal position which has been modified by this Court and now there is no hard and fast principle now that on the termination of service being found to be illegal, the normal rule is reinstatement with backwages. Compensation can be awarded instead, at the discretion of the Labour Court, depending on the facts and circumstances of the case."The proposition of law, which emerges from these judgments, is that even if the dismissal or termination of an employee from service is illegal, he is not entitled to whole of the backwages as a matter of right, and the Court needs to award a suitable compensation after considering all the facts and circumstances of the case before it".
28. Now in the light of abovesaid discussion it is apparent that the damages which are to be awarded by the court depends upon case to case and there is no fixed criteria for the same, but one yardstick which is to be applied is that court has to see that plaintiff had tried to mitigate the loss by finding out alternate job and efforts on the part of plaintiff should be reflected on record.
29. In the case is hand no evidence is lead by plaintiff to show that she tried to find out some alternate job for her. Also considering the fact that the plaintiff worked in the defendant no.1 company only Suit No. 511/2011 Page No. 20 of 22 for two months i.e. from 06.06.2011 to 06.08.2011 and also the fact that an excess salary for 25 days was already disbursed to her and had been enjoyed by her, therefore, the interest of justice would be served when the plaintiff is granted overall damages equivalent to her basic salary of one month i.e. Rs. 6700/ i.e. as mentioned in her appointment letter without allowances because allowances are granted for work and in the present case there was no work, therefore, no payment is to be made for that and as already observed that no quantification is put forward by plaintiff for damages for mental agony and pain, therefore, the prayer of the plaintiff in this regard is declined.
30. Therefore, plaintiff is entitled to damages for the sum of Rs. 6700/. Hence, the present issue is decided accordingly partly in favour of plaintiff and partly in favour of defendants. Issue No.4: Whether the plaintiff has no cause of action? OPD
31.The onus to prove this issue was upon defendants and in view of the abovesaid issues it is clear that there was a cause of action in favour of plaintiff against defendant no.1 but defendant no.2 being only an agent of defendant no.1 cannot be personally made liable for the act Suit No. 511/2011 Page No. 21 of 22 of defendant no.1. Moreover, plaintiff has not sought any special damages against defendant no.2 therefore, there is no cause of action against defendant no.2 in favour of plaintiff. Hence, there is cause of action in favour of plaintiff against defendant no.1 but not against defendant no.2. The issue is decided accordingly partly in favour of plaintiff and partly in favour of defendant no.2. Issue No. 5: Relief.
32.On the basis of abovesaid discussions on all the issues the plaintiff is entitled to recovery of sum of Rs. 6700/ alongwith interest @ 09% from the date of filing of suit till realization against defendant no.1. The suit stands dismissed against defendant no.2. Cost of the suit are also awarded in favour of plaintiff.
0 Decree sheet be drawn accordingly.
0 File be consigned to record room after due compliance.
Announced in the open Court (NITI PHUTELA)
dated 31/10/2013 Civil Judge02, South District,
Saket Courts, New Delhi
Suit No. 511/2011 Page No. 22 of 22