Delhi District Court
Presently At vs Gandhi Smarak Sangrahalaya Samiti on 21 April, 2018
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR, ADDITIONAL
DISTRICT JUDGE, CENTRAL, TIS HAZARI, DELHI
SUIT NO. 614393/16
MS. SANGITA MALLIK
W/O LATE PROF. T. MALLIK
R/O FLAT NO. 413, 1st FLOOR
RAMA APARTMENTS, SECTOR-11
PLOT NO.2, PHASE-1, DWARKA
NEW DELHI-110075
PRESENTLY AT :
MS. SANGITA MALLIK
C/O SMT. SUSMITA PARASHAR
1982, CARLOTTA CT
ATLANTA, GA-30345
USA .....Plaintiff
VERSUS
1.GANDHI SMARAK SANGRAHALAYA SAMITI
THROUGH ITS SECRETARY/CHAIRMAN
RAJGHAT,
NEW DELHI- 110002
2.NATIONAL GANDHI MUSEUM,
SERVICE TO BE EFFECTED THROUGH
SECRETARY/CHAIRMAN,
GANDHI SMARAK SANGHRAHALAYA SAMITI
RAJGHAT, NEW DELHI-110002 ..... Defendants
Date of Institution :25.09.2013
Date of Arguments :18.04.2018
Date of Judgment :21.04.2018
SUIT FOR DECLARATION AND FOR RECOVERY OF
COMPENSATION AND DAMAGES
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION : -
1. The plaintiff has filed the present suit for declaration and for recovery of compensation and damages. The plaintiff is director of defendant no. 2 and member/secretary of defendant no.1. The services of the plaintiff were terminated illegal and in arbitrary manner ignoring the fact that the services of plaintiff were on contract basis for a fixed period of five years. The terms of appointment has no provision for termination of service before expiry of at an earlier date then the period so fixed. The meeting of selection was held on 18.9.10. The decision/proper letter of the Selection Committee was communicated to the plaintiff vide letter dated 19.10.10. Plaintiff has joined as Director/defendant no.2 and member secretary of defendant no 1 in the forenoon of 21.9.10. In January 2013 the plaintiff suffered from brain tumor and had to undergo emergent surgery on 31.1.13 in which certain complication and bleeding in the brain had developed. Thus, the plaintiff had remained hospitalized for 21 days out of which 10 days were spent in ICU.
Hence, the plaintiff had applied for three months medical leave from Feb.2013 to April 2013 which was sanctioned by the defendants subject to 50% of honorarium.
2. Due to post surgery complication the plaintiff had went to USA in March 2013 where she was advised treatment for three months with complete bed rest. Hence, the plaintiff had applied for medical leave from May 2013 to July 2013 which was accepted by the defendant vide letter dated 01.05.13 without any honorarium.
3. After the above surgery the plaintiff had developed blurred vision due to her right eye had to be operated on 14.5.13 with advise of three months time to recover. Plaintiff had applied for extension of her medical leave vide letter dated 10.7.13 and again applied for extension from August 2013 to October, 2013. Intimation was given that the plaintiff will join by November, 2013. Defendant had illegally terminated the service of the plaintiff vide letter dated 01.8.13. No inquiry was held against the plaintiff and no opportunity of being heard was given to the plaintiff. The period of medical leave cannot be counted as a period of service in counting the said five years period. Hence, the plaintiff is entitled to compensation at the rate of Rs .50,000/- per month and total sum claimed is Rs. 12,50,000/-.Plaintiff is also entitled to interest on due amount @ 12% per month till th realization of the due amount alongwith cost of the suit.
4. In the WS filed by the defendants the appointment of director as pleaded by the plaintiff is admitted however, it is pleaded that the plaintiff is not covered by exceptions to the rule and not entitled to protection under Article 311 of the Constitution of India and also not entitled to protection under the Industrial Disputes Act, 1947. Defendants are neither State nor a authority covered under the Article 12 of the Constitution.
5. It is submitted by the defendants that the plaintiff could not regularly attend her duties in office as shown in attendance record form 21.9.10 to 27.01.13. Plaintiff came in the office on 7 th, 8th and 10th of March, 2013 only to wind up her work and to remove her articles and not to perform her duties. It is admitted that from 1.2.13 to 30.4.13 the medical leave of the plaintiff were sanctioned/granted under the Rule 10 of the relevant rules. Half pay leave was granted and intimation was given to the plaintiff vide letter dated 5.3.13.
6. The sick leave from 1.5.13 to 31.7.13 were not approved in special meeting held on 18.5.13 of the governing body. The certificate submitted was found inadequate and the provisions submitted in the leave was found inapplicable. The governing body requested Chairman to ask the plaintiff to submit her resignation in the circumstances of the case. The governing body authorised Treasurer to adjust pending amounts of the plaintiff. In special meeting of governing body dated 26.7.13 when the plaintiff was not ready to resign, the health and performance and absence of the plaintiff was considered wherein it was found that due to ill health it was not possible to allow the plaintiff to continue as Director. It was decided that if the plaintiff does not resign, then the Chairman was authorised to relieve the plaintiff from her responsibilities. The relieving letter was sent to the plaintiff dated 1.8.13 and the directions of the governing body held in meeting dated 26.7.13 were also conveyed. Hence, the new Director Shri A. Annamalai was appointed in place of plaintiff
7. It is submitted by the defendant that the plaintiff has remained absent from her duties from a responsible post for more than six months. Plaintiff was not provided with salary but with honorarium. The relieving order is based on equity and justice according to the rules and regulations. Plaintiff was not eligible to ask for leaves under the Leave Rules. The Chairman informed the governing body on 26.7.13 that the plaintiff is not ready for resign and had sought another leave for three months. Plaintiff has left without giving physical verification of keys, store room, galaries and therefore, held up the function of the Institution. Plaintiff was relieved from her duties as per decision of the governing body dated 26.7.13. Accordingly the defendants has pleaded for dismissal of the suit of the plaintiff.
8. Replication is filed by the plaintiff in which plaintiff has reaffirmed the averments made in the plaint and denied the averments of the defendant. It is submitted by the plaintiff that her engagement was purely contractual and her disability was temporarily on medical ground. The sanction of leave of half pay suggests that the plaintiff has been treated as employee of the defendant in terms of Rule 10 of Service Rules. Without disciplinary action the service of the plaintiff cannot be terminated. The leave was initially sanctioned with 50% deduction of honorarium in salary and with 100% deduction of honorarium later on. All the above conduct shows that the plaintiff was treated as an employee by the defendant. Other averments of the defendant were denied by the plaintiff. The keys of the office were duly handed over to the Hon'ble Chairman.
9. On the pleadings of the parties and averments made following issues were framed in the suit on 03.1.2015 which are reproduced as under:
1. Whether plaintiff is entitled for relief of declaration declaring the action of defendant for termination of service of plaintiff as illegal, arbitrary & null and void ?OPP
2. Whether plaintiff is entitled for damages/compensation quantified as Rs.12,50,000/-? OPP
3. Whether plaintiff is entitled for interest, if so at what rate and for what period?OPP
4. Whether plaintiff has no cause of action to file suit against defendants?OPD.
5. Relief.
10. Plaintiff has got examined herself as PW-1, being the sole witness in her case. PE was closed on 08.03.16. The defendants had got examined DW-1 Shri A. Annamalai, the Director of the defendant and DW 2 Shri Ram Chandra Rahi, Treasurer of the defendants. The DE was closed on 15.3.17.
11. Arguments are heard and record perused. The issue wise findings are as under:-
12. ISSUE NO. 1Whether plaintiff is entitled for relief of declaration declaring the action of defendant for termination of service of plaintiff as illegal, arbitrary & null and void ?OPP
12.1 The relationship of master and servant is purely contractual subject to well recognized exceptions as laid down in citation titled SBI and Ors. Vs. S.N. Goyal AIR 2008 SC 2594 at para no. 11 reproduced as under:
11. Where the relationship of master and servant is purely contractual, it is well settled that a contract of personal service is not specifically enforceable, having regard to the bar contained in section 14 of the Specific Relief Act, 1963. Even if the termination of the contract of employment (by dismissal or otherwise) is found to be illegal or in breach, the remedy of the employee is only to seek damages and not specific performance. Courts will neither declare such termination to be a nullity nor declare that the contract of employment subsists nor grant the consequential relief of reinstatement. The three well recognized exceptions to this rule are:
(i) where a civil servant is removed from service in contravention of the provisions of Article 311 of the Constitution of India (or any law made under Article 309);
(ii) where a workman having the protection of Industrial Disputes Act, 1947 is wrongly terminated from service; and
(iii) where an employee of a statutory body is terminated from service in breach or violation of any mandatory provision of a statute or statutory rules.
There is thus a clear distinction between public employment governed by statutory rules and private employment governed purely by contract. The test for deciding the nature of relief damages or reinstatement with consequential reliefs is whether the employment is governed purely by contract or by a statute or statutory rules. Even where the employer is a statutory body, where the relationship is purely governed by contract with no element of statutory governance, the contract of personal service will not be specifically enforceable. Conversely, where the employer is a non- statutory body, but the employment is governed by a statute or statutory rules, a declaration that the termination is null and void and that the employee should be reinstated can be granted by courts. (Vide : Dr. S. Dutt vs. University of Delhi AIR 1958 SC 1050; Executive Committee of UP State Warehousing Corporation Ltd. Vs. Chandra Kiran Tyagi 1970 (2) SCR 250; Sirsi Municipality vs. Cecelia Kom Francies Tellis 1973 (3) SCR 348; Executive Committee of Vaish Degree College vs. Lakshmi Narain 1976 (2) SCR 1006; Smt. J. Tiwari vs. Smt. Jawala Devi Vidya Mandir AIR 1981 SC 122; and Dipak Kumar Biswas vs. Director of Public Instruction AIR 1987 SC 1422).
12.2 Admittedly the defendant is a registered society under Societies Registration Act, 1860. The employment of the plaintiff is governed purely by law of contract as defendant is not a statutory body. It is not the case of the plaintiff that the defendant is a statutory body constituted under a statute and therefore the plaintiff is not in employment of a statutory body.
12.3 The defendant is not an "authority" under the control of Government of India and as such not an "instrumentality" within the domain of Article 12 of the Constitution of India. To be an instrumentality of the State or agency of the Government there should be certain amount of direct control exercised by the Government with other conditions as laid down in citation titled Shriram Pistons and Rings Ltd. and Anr. v. T.S. Mokha in RFA (OS) NO. 3/1999 (DB) dated 25.01.2012 from Hon'ble High Court of Delhi as laid down under para 12 which is reproduced as under:
Their Lordships after considering the entire case law laid down the following principles in order to determine as to whether a particular corporation is an instrumentality or agency of Government within the meaning of Article 12 of the Constitution of India in the above said case:
(1981)ILLJ103SC (supra).
(1) One thing is clear that if the entire share capital of the corporation is held by Government it would go a long way towards indicating that the corporation is an instrumentality or agency of Government; (2) Where financial assistance of the State is so much as to meet the almost entire expenditure of the corporation it would afford same indication of the corporation being impregnated with governmental character.
(3) It may also be a relevant factor, whether the corporation enjoys monopoly status which is the State conferred or State protected;
(4) Existence of "deep and pervasive State control" may afford an indication that the corporation is a State agency or instrumentality;
(5) If the functions of the corporation are of public importance and closely related to governmental functions it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government;
(6) Specifically, if a department of a Government is transferred to a corporation it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government."
Hence plaintiff has failed to show that defendant society is an instrumentality of the State by pleadings or otherwise and hence Article 311 of Constitution of India is held not applicable to the case of the plaintiff.
12.4 In the citation titled Shriram Pistons and Rings Ltd. and Anr. v. T.S. Mokha in RFA (OS) NO. 3/1999 (DB) dated 25.01.2012 from Hon'ble High Court of Delhi has laid down at para 21, 22, 23 and 25 which are reproduced as under:
21. This view of ours is further fortified by observation made by Justice Bhagwati (as his Lordship then was) in the concurring judgment in Executive Committee of Vaish Degree College, Shamli Vs. Lakshmi Narain (Supra) in para 31, which is extracted below :-
"31. ............... There are two distinct classes of cases which might arise when we are considering the relationship between employer and employee. The relationship may be governed by contract or it may be governed by statute or statutory regulations. When it is governed by contract, the question arises whether the general principles of the law of contract are applicable to the contract of employment or the law governing the contract of employment is a separate and sui generis body of rules. The crucial question then is as to what is the effect of repudiation of the contract of employment by the employer. If an employer repudiates the contract of employment by dismissing his employee, can the employee refuse to accept the dismissal as terminating the contract and seek to treat the contract as still subsisting? The answer to this question given by general contract principles would seem to be that the repudiation is of no effect unless accepted, in other words, the contracting party faced with a wrongful repudiation may opt to refuse to accept the repudiation and may hold the repudiation to a continuance of his contractual obligation. But does this rule apply to wrongful repudiation of the contract of employment? The trend of the decisions seems to be that it does not. It seems to be generally recognized that wrongful repudiation of the contract of employment by the employer effectively terminates the employment : the termination being wrongful entitles the employee to claim damages, but the employee cannot refuse to accept the repudiation and seek to treat the contract of employment as continuing. What is the principle behind this departure from the general rule of law of contract? The reason seems to be that a contract of employment is not ordinarily one which is specifically enforced. If it cannot be specifically enforced, it would be futile to contend that the unaccepted repudiation is of no effect and the contract continues to subsist between the parties. The law in such a case, therefore, adopts a more realistic posture and holds that the repudiation effectively terminates the contract and the employee can only claim damages for wrongful breach of the contract. Now a contract of employment is not specifically enforced because ordinarily it is a contract of personal service and, as pointed out in the first illustration to clause (b) of Section 21 of the Specific Relief Act, 1877, a contract of personal service cannot be specifically enforced. Of course this illustration has not been omitted in the new Specific Relief Act, 1963 and what would be the effect of such omission may be a point which may require consideration someday by this Court. But for the purpose of this case, I will proceed on the assumption that even under the new Act, the law is the same and it frowns on specific enforcement of a contract of personal service."
22. The legal position in this regard was again cleared in the case, 2008 (8) SCC 92 titled SBI vs. S.N.Goyal. Relevant para 17 of the judgment is extracted below :-
"17. Where the relationship of master and servant is purely contractual, it is well settled that a contract of personal service is not specifically enforceable, having regard to the bar contained in Section 14 of the Specific Relief Act, 1963. Even if the termination of the contract of employment (by dismissal or otherwise) is found to be illegal or in breach, the remedy of the employee is only to seek damages and not specific performance. Courts will neither declare such termination to be a nullity nor declare that the contract of employment subsists nor grant the consequential relief of reinstatement. The three well recognized exceptions to this rule are:
(i) where a civil servant is removed from service in contravention of the provisions of Article 311 of the Constitution of India (or any law made under Article
309);
(ii) where a workman having the protection of Industrial Disputes Act, 1947 is wrongly terminated from service; and
(iii) where an employee of a statutory body is terminated from service in breach or violation of any mandatory provision of a statute or statutory rules.
There is thus a clear distinction between public employment governed by statutory rules and private employment governed purely by contract. The test for deciding the nature of relief - damages or reinstatement with consequential reliefs - is whether the employment is governed purely by contract or by a statute or statutory rules. Even where the employer is a statutory body, where the relationship is purely governed by contract with no element of statutory governance, the contract of personal service will not be specifically enforceable. Conversely, where the employer is a non- statutory body, but the employment is governed by a statute or statutory rules, a declaration that the termination is null and void and that the employee should be reinstated can be granted by courts."
23. Here the case of the respondent was not covered under any of the exceptions referred to in the cases noted above. It is settled legal position that contract of personal services cannot be specifically enforced either by the Master or the Servant. The legal remedy in such relationship is only by way of claiming damages unless the case of such employee falls under any of the exceptions referred to above. Whether in the relationship of Master and Servant, the termination can be declared as nullity, was answered by the Apex Court in AIR 1973 SC 855 titled as Sirsi Municipality by its President, Sirsi Vs. Cecelia Kom Francis Tellis. The relevant paras 15 to 18 are extracted below :-
"15. The cases of dismissal of a servant fall under three broad heads. The first head relates to relationship of master and servant governed purely by contract of employment. Any breach of contract in such a case is enforced by a suit for wrongful dismissal and damages. Just as a contract of employment is not capable of specific performance similarly breach of contract of employment is not capable of founding a declaratory judgment of subsistence of employment. A declaration of unlawful termination and restoration to service in such a case of contract of employment would be indirectly an instance of specific performance of contract for personal services. Such a declaration is not permissible under the Law of Specific Relief Act.
16. The second type of cases of master and servant arises under Industrial Law. Under that branch of law a servant who is wrongfully dismissed may be reinstated. This is a special provision under Industrial Law. This relief is a departure from the reliefs available under the Indian Contract Act and the Specific Relief Act which do not provide for reinstatement of a servant.
17. The third category of cases of master and servant arises in regard to the servant in the employment of the State or of other public or local authorities or bodies created under statute.
18. Termination or dismissal of what is described as a pure contract of master and servant is not declared to be a nullity however wrongful or illegal it may be. The reason is that dismissal in breach of contract is remedied by damages. In the case of servant of the State or of local authorities or statutory bodies, courts have declared in appropriate cases the dismissal to be invalid if the dismissal is contrary to rules of natural justice or if the dismissal is in violation of the provisions of the statute. Apart from the intervention of statute there would not be a declaration of nullity in the case of termination or dismissal of a servant of the State or of other local authorities or statutory bodies."
25. In case of private employee, a contract of personal services cannot ordinarily be specifically enforced. The Court would not be imposing an employee on the employer and enforce contract of personal services. An employer cannot be forced to take an employee when there is complete loss of faith between the two or can be inferred from the averments made in this case. The claim of damages i.e. salary, till respondent would have attained the age of superannuation by learned Single Judge is not sustainable in law. This is for the reason that if a contract expressly provides that it is termination upon serving a particular period of notice e.g. three months notice, the damages will ordinarily be wages for that period. He cannot claim compensation in respect of the injuries to his feelings by such termination or the problems faced in finding another job.
12.5 The nature of employment of the plaintiff is therefore private employment governed by law of contract. The plaintiff was appointed as Director of defendant no. 2 in November 2013 vide appointment letter Ex.PW1/4 on consolidated honorarium of Rs.30,000/- p.m. and Rs.5,000/- as transport allowance alongwith cost of telephone. Plaintiff was appointed under Clause II of Rules and Regulations of memorandum of association of the Gandhi Samarak Sanghralaya Samiti. Plaintiff also had to work as Secretary in terms of Clause VIII of the Rules and Regulations of memorandum of association. The plaintiff was appointed by Chairman of the defendants. The memorandum of association and rules and regulations are Ex.PW1/1. The governing body is mentioned at para no. 4 of Ex.PW1/1, which does not consist of Director of the defendants, and therefore the defendant is not part of governing body. The Rule VIII of Ex.PW1/1 provides for employment of Director/ex-officio member Secretary of the Samiti by the Chairman. The Director has to work only under the guidance of the Chairman. Hence, the Chairman is the appointing authority of the plaintiff. Vide Ex.PW1/9 the Chairperson has communicated to the plaintiff of having relieved the plaintiff on 01.08.2013. The medical leave of the plaintiff was not extended further after 31.07.2013 and on non reporting on duty on 01.08.2013 the plaintiff was relieved from her services.
12.6 According to the plaintiff her employment was for fixed period of five years and which cannot be terminated before fixed period of five years. In appointment letter Ex.PW1/4 does not mention of termination of her employment and therefore contract of services cannot be terminated. The said plea of the plaintiff cannot be accepted in view of citation titled Shriram Pistons and Rings Ltd. and Anr. v. T.S. Mokha in RFA (OS) NO. 3/1999 (DB) dated 25.01.2012 from Hon'ble High Court of Delhi as laid down at para 21, 22, 23 and 25 referred above. The observation of Justice Bhagwati (as his Lordship then was) has laid down that it is generally recognized principle that even wrongful repudiation of the contract of employment by the employer effectively terminates the employment which entitles the employee to claim damages. The employee cannot refuse to accept repudiation and seek to treat the contract of employment as continuing. Hence, in view of the above settled law the plaintiff cannot treat her contract of employment as continuing employment after termination of her employment vide Ex.PW1/9.
12.7 The plea of the plaintiff that her employment cannot be terminated as nature of employment does not fall under rules framed vide memorandum of association of the defendants. However, the appointment of plaintiff is well laid down under the same rules which is challenged by the plaintiff. The three classified categories are already laid down in the citation titled SBI and Ors. Vs. S.N. Goyal AIR 2008 SC 2594 at para no. 11 referred above and thereby the nature of employment of the plaintiff remains purely of contractual nature. If no terms are mentioned in the contract then recourse to memorandum of association and rules framed under memorandum of association has to be taken into consideration for clarity in the matter. In absence of written contract as to any subject matter the parties are governed by memorandum of association and rules framed thereunder. The memorandum of association and the rules framed thereunder provides for leave and holidays. Plaintiff was availing medical leave. The termination and retrenchment is provided under Chapter X of the rules. The Sub-Rule 3 provides notice period of three months which can be reduced by the Director. The director only with the approval of Chairman can extend fresh contractual employment of retiring personnel. Thereby the said contractual employee are governed by same services rules provided in Ex.PW1/2. This clearly shows that the service rules are applicable to the contractual employees. The plaintiff being appointed as Director is a contractual employee. Being a contractual employee thus is within the power of the Chairman of the defendants to terminate the services of the plaintiff. Hence the termination of the plaintiff by the Chairman of the defendants vide Ex.PW1/9 w.e.f 01.08.2013 is valid under law. The leave of the plaintiff was not extended further from 31.07.2013. The termination was therefore is not illegal and which also does not create any adverse remark on the plaintiff in view of the fact that the termination does not mention of any adverse remark on the plaintiff. Hence it is held that it cannot be said that the termination of services of the plaintiff is illegal. Accordingly the present issue is decided against the plaintff and in favour of defendants.
13. ISSUE NO. 2Whether plaintiff is entitled for damages/compensation quantified as Rs.12,50,000/-? OPP 13.1 The plaintiff has claimed compensation. The plaintiff can claim compensation only when he can show that her case comes within four corners of law. In citation titled Naresh Kumar v. Hiroshi Maniwa & Ors. in CS (OS) No. 393/2010 dated 05.11.2015 passed by Hon'ble High Court of Delhi it is laid down at para no. 4 that how and in what manner damages can be claimed. Further, at para no. 6 and 7 the principles for grant of interest and facts necessary for consideration of defamation are laid down. The relevant paras are reproduced as under:
4. In the judgment in the case of Shri Satya Narain Garg (supra), I have referred to the recent judgment of the Supreme Court in the case of Binny Ltd. & Anr. Vs. V. Sadasivan & Ors. (2005) 6 SCC 657 and which holds that public policy principles or administrative law principles do not apply to private employment. The relevant paras in the judgment in Shri Satya Narain Garg (supra) read as under:-
"7. Merely because two views are possible, this Court will not interfere with the conclusion arrived at by the Trial Court, unless the conclusion is illegal or perverse or causes grave injustice. In case of private employment, the employers are fully justified in taking steps for termination of services, if it finds that the employee is not upto the mark. Principles applicable in public law domain do not apply with respect to employees in private employment. Employment in private sector is governed by the terms and conditions of employment, and unless the termination is shown to be violation of the terms and conditions of employment, it cannot be said that the termination is illegal. In the present case, in my opinion, since there was no fixed period of employment so far as the deceased plaintiff is concerned, the deceased plaintiff could have been terminated from services even by a simplicitor notice, assuming even if the services of the deceased plaintiff were upto the mark. Further, even if there is illegal termination of services, it is not possible to grant damages as claimed inasmuch as the principle of mitigation of damages squarely applies. As per this principle of mitigation of damages enshrined in Section 73 of the Contract Act, 1872 even if an employee is illegally terminated from services, he cannot sit at home and he must take sufficient steps to procure alternative employment. The law in this regard is contained in the judgment of the Supreme Court reported as S.S. Shetty v. Bharat Nidhi Ltd., AIR 1958 SC
12. Paras 12 and 13 of this judgment are relevant and the same read as under:
12. The position as it obtains in the ordinary law of master and servant is quite clear. The master who wrongfully dismisses his servant is bound to pay him such damages as will compensate him for the wrong that he has sustained.
"They are to be assessed by reference to the amount earned in the service wrongfully terminated and the time likely to elapse before the servant obtains another post for which he fitted. If the contract expressly provides that it is terminable upon, e.g., a month's notice, the damages will ordinarily be a month's wages... ... ... No compensation can be claimed in respect of the injury done to the servant's feelings by the circumstances of his dismissal, nor in respect of extra difficulty of finding work resulting from those circumstances. A servant who has been wrongfully dismissed must use diligence to seek another employment, and the fact that he has been offered a suitable post may be taken into account in assessing the damages."
(Chitty on Contracts, 21st Edition, Vol (2), p. 559 para. 1040).
13. If the contract of employment is for a specific term, the servant would in that event be entitled to damages the amount of which would be measured prima facie and subject to the rule of mitigation in the salary of which the master had deprived him. (Vide Collier v. Sunday Referee Publishing Co. Ltd., 1940-4 ALL. E.R. 234 at p.237 (A). The servant would then be entitled to the whole of the salary, benefits, etc., which he would have earned had he continued in the employ of the master for the full term of the contract, subject of course to mitigation of damages by way of seeking alternative employment." xxxx xxxx xxxx xxxx
9. Surely, these types of self-serving averments cannot be held as discharge of onus of proof of mitigation of damages. The statement made by the deceased plaintiff is bereft of any details as to which companies or firms or persons he applied to, and on which dates, and for what position, and for what salary and also the details as to why he could not obtain the alternative employment. I am, therefore, of the opinion that the deceased plaintiff, even assuming he was wrongly terminated from services, failed to prove that he had taken sufficient steps for mitigation of damages."
8. In view of the aforesaid judgments, the following conclusions in law emerge:-
(i) A contract of private employment is not similar to the public employment and in such private employment there is no scope of applicability of the principles of administrative law/public law.
(ii) A contract of employment which provides termination of services by one month's notice, then, at best the employee will only be entitled to one month's pay in terms of the employment contract. An employee is not entitled to any relief of continuation in services or pay with consequential benefits for alleged remaining period of services till the date of his superannuation.
(iii) As per the provision of Section 14(1)(c) of the Specific Relief Act, 1963, a contract which is determinable in nature cannot be specifically enforced. Since the service contract in the present case is determinable by one month's notice there does not arise the question of giving of any reliefs which tantamount to enforcement of a determinable contract. As per Section 14(1)(b), a contract of personal service cannot be enforced when the employer is not the Government or "State" as per Article 12 of the Constitution of India.
13.2 In view of law as laid down by His Lordship it is required upon the plaintiff to show that to which company or firms or persons with specific date and position and for what salary the plaintiff had applied for alternative employment even if assuming that her services were wrongly terminated. The plaintiff has not deposed the above facts in her entire evidence by way of affidavit Ex.PW1/A and infact it is admitted case of the plaintiff that during her entire such period she was under medical treatment. Plaintiff had to join by November 2013 by her own claim. However there are no pleadings and evidence as to effort made by the plaintiffs as to mitigate the loss due to such termination of her services. In fact the plaintiff herself was medically incapacitated and was not able to perform her service. Accordingly plaintiff could not have worked during such period and could not have mitigated damages. When plaintiff could not have worked then this shows that plaintiff could also not have earned income during her such period of treatment. The plaintiff has failed to prove her medical fitness certificate for a particular period to support her case of employability in absence of same it cannot be said that damages could have offered to the plaintiff due to non employment for such period of three months from date of termination of her services. In such circumstances of the case the plaintiff has failed to show damages as claimed by her. In the circumstances of the case it is found fit that damages in the nature of salary/honorarium for a period of three months from the date of termination of employment of the plaintiff which is 01.08.2013 is sufficient. The admitted honorarium admitted between the parties is Rs.30,000/-. Hence the total claim of the plaintiff for a sum of Rs.90,000/- is allowed on such termination of the services of the plaintiff by the defendants. The present issue is accordingly decided in favour of plaintiff and against the defendants.
14. ISSUE NO. 3Whether plaintiff is entitled for interest, if so at what rate and for what period?OPP 14.1 The findings under issue no. 2 above, which are equally applicable under the present issue and be read as part of the present issue. The same are not repeated herein for the sake of brevity. The plaintiff is held entitled for a sum of Rs.90,000/- for three month notice period on her such termination of service vide Ex.PW1/9 w.e.f 01.08.2013. Defendants have submitted that they had offered to the plaintiff such amount which plaintiff did not accept. However the defendants have failed to prove the said offering to the plaintiff in their evidence in absence of which the said statement of defendant is not accepted. The citation titled Naresh Kumar v. Hiroshi Maniwa & Ors. in CS (OS) No. 393/2010 dated 05.11.2015 passed by Hon'ble High Court of Delhi it is laid down at para no. 6(supra) as to the grant of reasonable rate of interest. Accordingly simple interest @ 9% per annum is granted to the plaintiff and against the defendant from the date of filing of the suit till the recovery of suit amount. Keeping in view the current rate of interest prevailing in the market and that nature of transaction is not commercial between the parties the above rate of interest is granted to the plaintiff. The present issue is accordingly decided in favour of plaintiff and against the defendants.
15. ISSUE NO. 4Whether plaintiff has no cause of action to file suit against defendants?OPD 15.1 The findings under issue no. 1 above, which are equally applicable under the present issue and be read as part of the present issue. The same are not repeated herein for the sake of brevity.
15.2 The burden of proof of the present issue was on the defendants. Defendants have submitted that there is no cause of action with the plaintiff. However the defendant has failed to show or proved the amount offered to plaintiff in lieu of such termination of her service though as per own rules of defendant the defendant mentions for three months notice period and salary thereof vide Ex.PW1/2. In such view of the matter the plaintiff has cause of action against the defendants in her favour. However plaintiff does not have cause of action against the defendants as to her such termination of services. Accordingly present issue is decided against the defendants and in favour of plaintiff.
RELIEF In view of the above it is held that the suit of the plaintiff is decreed for a sum of Rs.90,000/- from the date of filing of the suit till recovery of suit amount with interest @ 9% p.a. alongwith cost of the suit.
Decree sheet be prepared accordingly.
File be consigned to the record room.
Digitally signed JOGINDER by JOGINDER
PRAKASH
Announced in the open court PRAKASH NAHAR
NAHAR Date: 2018.04.26
on 21st April 2018 16:31:23 +0530
(JOGINDER PRAKASH NAHAR )
ADDL. DISTRICT JUDGE-04
CENTRAL /TIS HAZARI COURT/DELHI