Indian Kanoon - Search engine for Indian Law

Delhi District Court

Mukesh Kumar vs Edcil (India) Limited on 21 October, 2019

IN THE COURT OF MS. TWINKLE WADHWA: LD. ADDITIONAL
  DISTRICT JUDGE­03:PATIALA HOUSE COURT:NEW DELHI
                      DISTRICT
CS No. 57145/16

      Mukesh Kumar
      Flat No.24, Floor 2nd, 33­Rajput Road,
      Civil Lines, Delhi­110054.
                                                 .....Plaintiff

      VERSUS

      1. EDCIL (India) Limited
      Through its Chairperson cum Managing Director
      EdCIL House, 18A, Sector­16A,
      Noida­201301 (UP).

      2. Registrar of Copyright
      Ministry of Human Resource & Development
      4th Floor, Jeevan Deep Building,
      Sansad Marg, New Delhi­110001.

      3. Union of India
      Through its Secretary
      Ministry of Human Resource & Development
      Shastri Bhawan, C­Wing,
      Dr. Rajendra Prasad Road,
      New Delhi­110001.                        .....Defendants

Date of Institution         :    05.02.2015
Date of Final Arguments     :    19.10.2019
Date of Decision            :    21.10.2019
Conclusion                  :    Dismissed


CS No. 57145/16                                       Page 1 of 18
                             JUDGMENT

The Case­

1. This suit has been filed by plaintiff for declaration, perpetual, mandatory inunction and damages against the defendants. Plaintiff's Case­

2. It is the case of plaintiff that defendant no.1 published an advertisement dated 18.12.2012 inviting fresh LLB Graduates for recruitment for the post of 8 Consultants on a consolidated remuneration of Rs.30,000/­ per month. Interviews were held on 20.12.2012 at EDICL office and finally on 24.12.2012 candidates were recruited including the present plaintiff. Offer of appointment was issued to the plaintiff on 24.12.2012 by defendant no.1 and plaintiff joined the organization w.e.f 24.12.2012. As per the appointment letter, the assignment was on contractual basis for an initial period of three months which could be further extended based on performance and requirement. Further the assignment was project based and had to be co­terminus with the project as is mentioned in letter of appointment.

3. It is further the case of plaintiff that appointment letter was given to him on 17.01.2013. However, the copy of the agreement whereby containing terms of contract were not supplied to him which was later on supplied to him on 19.06.2013. It is submitted CS No. 57145/16 Page 2 of 18 that as per para 3 of the said agreement, it was for a period of three months which was to expire on 23.03.2013 and a fresh agreement was to be signed after the expiry of the initial agreement. However, after extension of his services, he was not made to sign any other agreement. Further the agreement provided for two and a half days leave for each completed month. Further it was open to other party to terminate the contract by way of one month notice in writing.

4. It is further the case of plaintiff that first month's salary was paid in cash and for rest months it was credited in his bank account. However, salary slips were not issued to the consultants till 24.06.2013, hence details of the deduction which was made by defendant no.1 on monthly remuneration were not available with the plaintiff. Similarly, details of PF deduction and income tax deductions etc. which were being deducted were not in their knowledge. Further the details of the accumulated and availed leave was not provided to them. Consequently, a joint representation was made by all the 8 consultants on 13.02.2013. However, no reply was received to the same till his date of termination i.e. 24.06.2013.

5. It is further the case of plaintiff that he was verbally informed by one of the employees of the copyright Division that the contract of the plaintiff has been further extended till September, 2013.

These extensions including previous extensions were never communicated in writing to the consultants.

6. Further a circular was issued on 17.01.2013 by defendant no.2 thereby directing all the consultants to complete a target of 20 applications per day though it was subject to force major clause. Further extension of the contract was dependent on the work accomplished and hence on their performance. However, on 21.05.2013 another circular was issued directing consultants to examine 25 applications per day instead of 20 and the applications which were related to discrepancy were not to be counted towards the work done and only registered applications were counted.

7. The said circular dated 21.05.2013 thereby revising the work done applications to 25 was in violation of the work contract though initially in the agreement, details of the applications to be done was not mentioned and consequently the plaintiff by exercising his rights under Section 66 of Contract Act, tendered his resignation dated 22.05.2013. It is further submitted that this resignation may not be treated as voluntarily but under compulsion for the pending grievances are remained unsettled till date. The said letter was replied by defendant no.1 on 11.06.2013. However, it was nowhere mentioned in the said letter that his resignation is accepted.

8. It is further the case of plaintiff that the targeted work done CS No. 57145/16 Page 4 of 18 per day was increased without corresponding increase in remuneration. Thereafter, another letter dated 18.06.2013 was issued thereby terminating the services of plaintiff w.e.f 24.06.2013. Further these eight posts were always in existence till filing of this plaint and in case any employee was terminated or left, it was filled with the substituted employee. It is submitted that due to wrongful termination of the contract of the plaintiff, the plaintiff has suffered loss of monthly earnings @ Rs.30,000/­ per month since his relieving on 24.06.2013. Hence, damages for loss of monthly remuneration during 24.06.2013 to 24.01.2015 has been claimed. Also damages for harassment and mental torture have been claimed and also damages under torts have been claimed. Consequently, plaintiff has prayed that a declaration be issued thereby declaring the termination letter dated 18.06.2013 as null and void, claimed damages besides other reliefs. Case of defendant no. 1

9. It is the case of defendant no.1 that plaintiff was appointed on contractual basis for the period 24.12.32012 till 23.03.2013 and same was subject to automatic termination after completion of the said period. It is further the case of defendant no.1 that plaintiff himself sent resignation letter dated 22.05.2013 which was accepted by the authority. Plaintiff has raised issues with respect to leave, PF, facilities etc. Plaintiff was appointed on contractual CS No. 57145/16 Page 5 of 18 basis and all the available facilities at the working place was provided to them. Further plaintiff is a highly qualified person who has degree of Bachelor of Technology from IIT Delhi, MBA from FMS and completed his LLB in the year 2012. Plaintiff also served as Manager with sales before joining defendant no.1. As soon as plaintiff joined defendant no.1, he sought to transfer his EPF and a sole motive of plaintiff of joining the services was to get his PF amount transferred from one PSU to another PSD. His request was allowed and his PF was got transferred by defendant no.1 which was later on released to him by cheque also. Plaintiff had already worked at a reputed position of Manager and was having sufficient years of experience. While the post he joined was entry level job requiring limited elementary expertise and the job was not comfortable for him. Hence, instead of performing the job, plaintiff started finding shortcomings at the job and was negative to everything around him. Further present plaint is time barred. Also it is a contract of personal service which cannot be enforced and is barred by Section 14 1 (ii) of Specific Relief Act.

10. Further it is submitted that the assignment was project based and co­terminus with the project. Further salary was credited to his account and PF contributions were made in his PF account. Further the contract of plaintiff was extended according to the requirements of the project. Further the circulars issued were in CS No. 57145/16 Page 6 of 18 the nature of guidelines to contractual employees. Further the plaintiff had himself resigned from his job which was entry level assignment for fresh Law graduate.

11. It is further the argument of Ld. Counsel for defendant no.1 that the job was meant for entry level graduates. Hence, initially they were given a target of disposing off 20 applications per day. However, with passage of time as they gained expertize, it was increased to 25 applications per day which is just and fair. Further consent of consultants was not required for the same nor it required increase in remuneration.

Case of defendant nos. 2 and 3­

12. A joint written statement is filed on behalf of defendant nos. 2 and 3 who submitted that the agreement of plaintiff was with defendant no.1. There is no privity of contract between plaintiff and answering defendants. Plaintiff worked with defendant no.2 pursuant to the contract between plaintiff and defendant no.1. Further plaintiff had no right beyond contract. Further plaintiff was highly qualified professional while this job was meant for entry level LLB Graduates.

13. Upon the completion of the pleadings, following issues were identified on 14.01.2016­ ISSUES­ CS No. 57145/16 Page 7 of 18

1. Whether this suit of the plaintiff is time barred? OPD.

2. Whether the reliefs sought by the plaintiff are within limitation? OP on Parties.

3. Whether the suit of the plaintiff is barred by Section 41 (1)

(ii) of Specific Relief Act? OPD.

4. Whether plaintiff is not entitled to any relief in so far as his appointment was contractual and had an automatic termination clause after three months? OPD.

5. Whether plaintiff is entitled to decree of declaration to the effect that termination Order dated 18.06.2013 was null and void? OPP.

6. Whether plaintiff is entitled to declaration that others consequences which led to plaintiff submitting his resignation letter on 22.05.2013 could have been avoided? OPP.

7. Whether defendant's act of recruiting other consultants in plaintiffs place was erroneous? OPP.

8. Whether plaintiff is entitled to declaration of mandatory injunction for retrospective reinstatement with effect from 24.06.2013 with all consequential benefits? OPP.

9. Whether plaintiff is entitled to decree of damages for breach of contract of Rs.10 lakhs? OPP.

10. Whether plaintiff is entitled to damages towards tortuous liability Rs.2 lakhs? OPP.

11. Relief.

14. To prove its case, Plaintiff examined Mukesh Kumar as PW1 and exhibited the following documents­ S.No. No. of Exhibits Details of the documents 1 Ex.PW1/1 Affidavit of evidence 2 Ex.PW1/2 Advertisement dated 18.12.2012 3 Ex.PW1/3 Appointment letter dated 24.12.2012 Ex.PW1/4 Certified copy of agreement to contractual 4 employment 5 Ex.PW1/5 Order dated 02.01.2013 6 Ex. PW1/6 Order dated 07.02.2013 7 Ex.PW1/7 Joint representation dated 13.02.2013 8 Ex.PW1/8 Order dated 17.01.2013 9 Ex.PW1/9 Certified copy of order dated 21.05.2013 10 Ex.PW1/10 Certified copy of resignation letter dated 22.05.2013 11 Ex.PW1/11 Certified copy of reply dated 11.06.2013 12 Exz.PW1/12 Certified copy of office order dated 18.06.2013 13 Ex.PW1/13 Certified copy of order dated 30.04.2014

15. On the contrary, defendants examined Shri U S Gaikwad as DW1.

Reasons for Decision­

16. Heard both the sides and gone through the record.

17. The first and foremost contention on behalf of plaintiff is that CS No. 57145/16 Page 9 of 18 his resignation letter dated 22.05.2013 cannot be said to be voluntary and willful resignation, on behalf of the plaintiff. Plaintiff himself has stated various ground in his letter due to which he was forced to resign. Hence, resignation cannot be called voluntary. Further his resignation was never accepted by the defendant. Hence, it is not a valid resignation in the eyes of law, as is claimed by plaintiff.

18. Plaintiff has placed reliance on the judgment of Dr. Prabha Atri Vs. State of UP & Ors., AIR 2003 SC 534 and Moti Ram Vs. Param Devi & Anr., MANU/SC/0270/1993.

19. Coming to the resignation letter of the plaintiff dated 22.05.2013, plaintiff has mentioned therein various grounds for rescission of contract thereby mentioning that payslips were not provided to the employees, the PF is being deducted from their salary every month but PF is not deposited in any account, there was no information provided regarding accumulative leave, copy of the agreements of service was not supplied to them, office environment and other amenities are not upto the mark and the burden of work was increased to 25 applications per day instead of 20 applications per day. However, all these grounds were not individualistic to the plaintiff and according to the own case of plaintiff, other seven consultants were also facing the same problem.

20. As far as the issue regarding Provident Fund is concerned, it is mentioned by defendant in their letter dated 11.06.2013 that there is a separate PF fund of the defendant where PF of all employees is being deposited and statement is provided to the outsourced staff at the completion of every year.

21. As far as the issue regarding not providing of payslip, agreement of service and information regarding non­accumulation is concerned, a joint representation was given by all the employees and information was provided to the plaintiff vide letter dated 11.06.2013 by the defendant. If the information was not provided on time as is the case of plaintiff, he would have availed the remedies available to him as per law. But instead of availing the remedies available in law, plaintiff chose to resign.

22. Plaintiff is a well qualified person. He has a degree of Bachelor of Technology from Delhi IIT, MBA from FMS and LLB. Before joining the present post, he worked as Manager in SAIL also while the present job is for freshly recruited Law graduates. The contract itself does not specify how many applications per day were to be disposed off, while an internal circular which was circulated after joining of the service by the consultants, it was apprised to the consultants that they were to dispose off 20 applications per day. I find force in the argument of Ld. Counsel for defendant that as the efficiency of the fresh Law graduates CS No. 57145/16 Page 11 of 18 increase after some exposure to work, they increased it to 25 applications per day. Hence, it cannot be called novation of the contract and the consent of plaintiff was not required as it is not part of the contract at all.

23. Further a perusal of the said orders on record dated 17.01.2013 and 21.05.2013 would show that these are practice directions only. It is nowhere mentioned in the contract about these practice directions. Hence, any change in the practice directions would not constitute novation of the contract.

24. Further plaintiff had sufficient exposure of working at other offices also before joining defendant no.1. He is a well qualified person beside being a law graduate. He himself had written letter of resignation dated 22.05.2013 to defendant no.1 and did not withdraw it at any point of time.

25. Only because an employee/contractual employee is unsatisfied with the practices of his employer and writes a letter of resignation, it cannot be called as non­voluntary. It is not the case of plaintiff that defendant no.1 or any of its employee had any personal enmity against him. It is not the case of plaintiff that he was targeted in person. Rather the same treatment was given to all eight consultants. If he was not provided with payslip or copy of agreement along with other employees, he could have availed the remedies available to him as per law. Hence, only because salary CS No. 57145/16 Page 12 of 18 slip was not provided to plaintiff for a period of five months, the details of PF were not provided or agreement of service or information about accumulated leave were not provided, it cannot be said that resignation was non­voluntary. Further plaintiff himself is Law graduate. In every case, where employee resigns due to non­satisfaction with the policies and conduct of his employer, the resignation cannot be called non­voluntary.

26. It is the case of defendant that pursuant to the resignation letter of plaintiff, vide office order dated 18.06.2013 defendant decided not to extend the contract of plaintiff further. Though it is correct that it is not so mentioned in the office order itself but the same is clarified by defendant no.1 in his written statement that it was his resignation which was accepted pursuant to which this office order was issued. When plaintiff himself has written resignation letter and have not withdrawn it, and the defendant had acted upon it, plaintiff is estopped from pleading otherwise thereafter and the law of estoppal also applies.

27. Plaintiff has relied upon judgement of Satish Joshi Vs. UOI WP (c) No. 3215/2012 decided on 20.03.2013 thereby submitting that when a contractual employee is appointed pursuant to a job, his employment would be coterminous with the project. I completely agree with the argument made by the plaintiff. However, the present is a case where the plaintiff himself resigned CS No. 57145/16 Page 13 of 18 from the services of defendant no.1 which was accepted by the defendant no.1 by conduct i.e. by issuing letter of non­extension. Hence, the above judgment is not applicable to the present case.

28. Issue wise findings are as follows­ Issue No.1­Whether this suit of the plaintiff is time barred? OPD.

Issue No.2­Whether the reliefs sought by the plaintiff are within limitation? OP on Parties.

29. As far as issue of limitation is concerned, it is the argument of Ld. Counsel for defendant that relief for the damages can be claimed till one year while the present suit was filed in 2015. However, letter of non extension of contract of plaintiff is dated 18.06.2013 after which plaintiff filed a Writ Petition before Hon'ble High Court of Delhi on 20.06.2013. Vide order dated 30.04.2014, the said Writ Petition was disposed off with liberty to the plaintiff to file appropriate proceedings as per law. Hence, in view of Section 14 of Limitation Act, benefit of Section 14 is to go to the plaintiff and the period during which his case was pending before Hon'ble High Court is to be excluded. Hence, the period of limitation for filing the present suit would begin from 30.04.2014 while the present suit was filed on 05.02.2015, hence within limitation. Issue No.4­Whether plaintiff is not entitled to any relief in so far as his appointment was contractual and had an automatic CS No. 57145/16 Page 14 of 18 termination clause after three months? OPD.

30. As far as this issue is concerned, after the expiry of initial period of three months, the contract automatically stood extended as the employment of plaintiff is co­terminus with the project as is mentioned in Judgment titled Satish Joshi Vs. Union of India & Anr. WP (c) No. 3215/2012 decided on 20.03.2013. Hence, contract of plaintiff did not come to an end after three months. Rather it came to an end pursuant to resignation of the plaintiff. This issue is accordingly decided.

Issue No.5­Whether plaintiff is entitled to decree of declaration to the effect that termination Order dated 18.06.2013 was null and void? OPP.

31. As discussed above, the termination order dated 18.06.2013 was an implied acceptance of resignation of the plaintiff by the defendant and the resignation of plaintiff was voluntary and willful. Hence, plaintiff is not entitled to any decree of declaration that the termination order dated 18.06.2013 be declared as null and void. This issue is decided in favour of defendant and against the plaintiff.

Issue No.6­Whether plaintiff is entitled to declaration that others consequences which led to plaintiff submitting his resignation letter on 22.05.2013 could have been avoided? OPP.

32. As far as this issue is concerned, as already discussed above, it was own decision of plaintiff to give resignation which was voluntary. Plaintiff had the remedies available with him with respect to the issues raised in his resignation letter. Further it is not the case of plaintiff that he was targeted and harassed in person. Hence, this issue is decided against plaintiff and in favour of defendants.

Issue No.7­Whether defendant's act of recruiting other consultants in plaintiffs place was erroneous? OPP.

33. When plaintiff himself had resigned, the act of recruiting others in his place cannot be called erroneous. This issue is decided against the plaintiff and in favour of defendants. Issue No.8­Whether plaintiff is entitled to declaration of mandatory injunction for retrospective reinstatement with effect from 24.06.2013 with all consequential benefits? OPP.

34. As already discussed above, plaintiff himself had resigned which was accepted by defendant by way of letter dated 18.06.2013 that is acceptance vide conduct. Hence plaintiff is not entitled to this relief and this issue is decided against him. Issue No.9­ Whether plaintiff is entitled to decree of damages for breach of contract of Rs.10 lakhs? OPP.

35. Plaintiff failed to prove how the contract was breached by the defendant. Rather it was the plaintiff himself who has resigned.

Further the damages should not only be pleaded but also proved as well which plaintiff failed to do in the present case. Hence, this issue is decided against plaintiff.

Issue No.10­Whether plaintiff is entitled to damages towards tortuous liability Rs.2 lakhs? OPP.

36. As far as this issue is concerned, plaintiff has claimed Rs.2 lacs of tortuous liability for the negligence wrongful act of all the defendants. However, if there was any negligence on part of defendant, remedy was available with the plaintiff to proceed as per law. But instead he decided to resign instead of availing the remedies. Hence, he is not entitled to any damages.

Issue No.3­Whether the suit of the plaintiff is barred by Section 41 (1) (ii) of Specific Relief Act? OPD.

37. The provision is incorrectly mentioned while framing the issues. While the correct provision is Section 14 1 (b) as has already been discussed above in view of the judgement of Satish Joshi Vs. Union of India & Anr. The employment of plaintiff being for project was to coterminous with the project but he himself resigned. Hence, the relief sought cannot be given. Issue is accordingly decided.

Issue No.11­Relief­

38. Suit is dismissed.

Decree Sheet be prepared accordingly.

File be consigned to record room.

Announced in an open Court            TWINKLE
                                                    by TWINKLE
                                                    WADHWA
On 21st day of October, 2019.         WADHWA        Date:
                                                    2019.10.21
                                                    12:53:29 +0530
                                     (Twinkle Wadhwa)
                                     ADJ­03/PHC/NEW DELHI
                                       21.10.2019




CS No. 57145/16                                     Page 18 of 18