Delhi High Court
Tilak Raj Chopra vs Alitalia Airlines on 9 December, 1996
Equivalent citations: 1997IAD(DELHI)494, 65(1997)DLT565, 1997(40)DRJ531
Author: J.B. Goel
Bench: J.B. Goel
JUDGMENT J.B. Goel, J.
(1) Plaintiff has filed the present suit for recovery of Rs.4,50,000.00 as damages on alleged wrongful dismissal of his service by the defendant.
(2) The case of the plaintiff is that he joined the defendant in 1964 as Sales Representative and was promoted as Senior Sales Representative and subsequently as Regional Sales Supervisor for Northern India and Nepal. During this period his service record was outstanding. Not having job satisfaction he tendered resignation on or about 9.8.1973. However, he was called by the Chief of defendant in Rome and in appreciation of his services he was offered promotion and so he withdrew his resignation and he was then promoted as Sales Supervisor for Northern India and Nepal on higher salary in September, 1973. He was also informed that he would be governed by the service Rules and Regulations of the defendant applicable to the Executives in India. The services of the plaintiff were terminated by the defendant on 31.12.1974. It is alleged that as various allegations of misconduct have been alleged in the letter of termination and the order is not a simpliciter termination of service but is dismisal for misconduct which could not have been done without complying with the provisions of the Rules and Regulations applicable and holding an inquiry under the said Regulations. The action is malafide, illegal, wrongful, oppressive, besides being in breach of rules and regulations. At the time of termination of his services he was aged about 41 years and according to the rules and regulations applicable he would have continued till the age of 58 years. He has claimed compensation on account of salary, yearly bonus, house rent allowance, leave equivalent, Ltc, Medical Expenses, Gratuity, Mess allowance, transport etc. amounting to Rs.8,04,400.00 . However, he has given up claim for Rs.3,54,400.00 and has claimed only a sum of Rs.4,50,000.00 . The break up of the amounts claimed under various heads of the amount claimed as damages, however, has not been specified.
(3) The defendant has filed written statement and contested the claim of plaintiff. It has not been disputed that the plaintiff had been employed with the defendant since 1964. It is alleged that the relationship between the plaintiff and defendant was purely contractual and services of the plaintiff have been terminated under Rule 23 of the Rules and Regulations of the service, which provided that services could be terminated by either party by giving one month's notice or one month's salary which has actually been done in this case. It is also alleged that the conduct of the plaintiff was not found satisfactory as complaints were received against him from Travel Agents about his conduct which was in contravention of the terms and conditions of the service. As the termination of services is in accordance with the terms and conditions of the service, the defendant was not obliged to hold any inquiry and the termination is legal and valid. It is denied that the plaintiff is entitled to the amounts as claimed. It is alleged that the plaintiff has been serving with Oriental Travels Pvt. Ltd., New Delhi ever since his services were terminated by the defendant and for this reason also he is not entitled to any damages. In any case he is not entitled to more than one month's salary as compensation and the suit is not maintainable and is otherwise filed after an inordinate delay.
(4) Plaintiff in the replication has admitted that he had worked with M/s. Oriental Travels Pvt. Ltd. but according to him he was paid a salary of Rs.500.00 besides Rs.500.00 as conveyance charges per month which according to him, he had to accept due to sheer helplessness as he could not get suitable job elsewhere.
(5) On the pleadings of the parties the following issues were framed on 22.11.1978: 1. Whether the plaint does not disclose a cause of action and is, therefore, liable to be rejected? 2. Whether the suit as framed is not maintainable? 3. Whether the Court has no jurisdiction to entertain the suit? 4. Whether the suit is within limitation? (Onus of proof on the plaintiff) 5. Whether the services of the plaintiff have been terminated illegally? (Onus of proof on the plaintiff) 6. Whether the plaintiff is entitled to claim damages as stated in paras 17 & 18 of the plaint? If so, to what amount? (Onus of proof on the plaintiff) 7. Relief.
(6) Both the parties have led oral and documentary evidence. Plaintiff has examined himself as PW.1 whereas on behalf of defendant Shri G.S. Sharma, Executive Director of defendant as DW.1 and Mr. Dimalta Michael, formerly Regional Manager of the defendant in India as DW.2 have been examined.
(7) This case remained on board of the Court for several days, but no one appeared on behalf of the defendant.
(8) I have heard the learned counsel for the plaintiff.
(9) My findings issue-wise are as under: Issues No.1 & 2 Issue No.1. Whether the plaint does not disclose a cause of action and is, therefore, liable to be rejected? Issue No.2: Whether the suit as framed is not maintainable? The plaintiff in the plaint has alleged that he was employed with the defendant and his services were illegally and wrongfully terminated on 31.12.1974 in violation of the Service Rules and Regulations applicable to him. I do not find any reason as to why the suit is not maintainable or that the plaint does not disclose a cause of action. On these facts suit is maintainable and the plaint discloses a cause of action. Both these issues are decided against the defendant.
(10) Issue No.3:Whether the Court has no jurisdiction to entertain the suit? Plaintiff has filed the suit for recovery of damages for wrongful dismissal. Civil Court has jurisdiction to try such a suit. This issue is decided against the defendant.
(11) Issue No.4:Whether the suit is within Limitation? Services of the plaintiff were terminated on 31.12.1974 and the present suit was filed on 23.12.1977. The period of limitation for damages for wrongful termination of service under Article 55 of the Limitation Act is three years from the date when the contract is broken. The suit is within limitation.
(12) Issue No.5:Whether the services of the plaintiff have been terminated illegally? Ex.P/5 is the letter dated 30.12.1974 whereby the services of the plaintiff were terminated with effect from 31.12.1974. Learned counsel for the plaintiff has contended that the termination has been made on account of alleged misconduct on the part of the plaintiff which is also mentioned in the letter of termination and this amounts to dismissal from service for misconduct for which regular inquiry as provided under Article 22 of the Rules and Regulations applicable to the plaintiff should have been held and the termination order is not simplicitor termination contemplated under Article 23 of the said Rules and Regulations. Relevant portion of the letter of termination reads as under: "1.THEREhave been several complaints from Travel Agents about your requesting them to issue tickets on Alitalia Airlines as well as on other airlines for your friends on your account. They further complained that your accounts have not been settled uptodate. This is totally against your terms and conditions of service to have dealings with the Agents for issue of tickets on your personal account on our Airlines as well as other airlines as you are a full time employee of Alitalia Airlines. By your dealings as mentioned above having come to light, the Management has completely lost confidence in you. 2. It is, therefore, not possible for the Airlines to keep you in its service and it has been decided to terminate your services forthwith by giving you one month's pay in lieu of notice which you are entitled to under the terms and conditions of appointment......"
It is apparent from this letter that the service of the petitioner has been terminated on account of acts of his misconduct as mentioned in the letter and due to his misconduct the Management has lost confidence in the plaintiff. In Chandu Lal Vs. Management M/s. Pan American World Airlines Inc. services of the workmen were terminated on the ground that the management had lost confidence in him and they could not retain him in service any more. It was held that "want of confidence in an employee does point out to an adverse facet in his character as the true meaning of the allegation is that the employee has failed to behave upto the expected standard of conduct which has given rise to a situation involving loss of confidence. In any view of the matter this amounts to a dereliction on the part of the Workman" and that where termination is grounded upon conduct attaching stigma to the workman, disciplinary proceedings were necessary as a condition precedent to infliction of termination as a measure of punishment and the order of termination was held to be vitiated in law and was quashed. In Kamal Kishore Laksham Vs. Management M/s. Pan American World Airways Inc. & Ors. , the same principle as in the case of Chandu Lal's case (supra) was followed where it has been again held that the loss of confidence by the employer in the employee is a feature which certainly affects the character or reputation of the employee and, therefore, the plea of loss of confidence in the employee indeed casts a stigma. The fact that the plaintiff was governed by the Service Rules and Regulations contained in Ex.D-2 is admitted in the written statement. Article 22 of the Rules and Regulations of the service Regulations defines misconduct which interlaid includes (k) Any act involving moral turpitude, (l) Any other act or omission which in the view of Alitalia is sufficiently serious as to prejudice good order or discipline or which tends to lower the reputation and standing of Alitalia in the eyes of the blic. And by clause (3) dismissal can be entailed on an employee who is found, after proper enquiry, to have committed mis-conduct. In the present case, the order of termination itself shows that the employee had failed to behave upto the expected standard of conduct resulting in loss of confidence in him. In other words this is not an order of termination simpliciter as contemplated under Art. 23 of the Service Regulations but termination of service for mis-conduct which entails stigma. This is dismissal from service which required holding domestic enquiry as contemplated under Art. 22(3) and as proper inquiry was not held termination of service is in violation of the service Rules applicable to the plaintiff. The termination order is thus bad and wrongful. This issue is accordingly decided in favour of the plaintiff.
(13) Issue No.6:Whether the plaintiff is entitled to claim for damages as stated in para 17 and 18 of the plaint? If so to what amount? In S.S. Shetty Vs. Bharat Nidhi Ltd. the legal position about entitlement of damages in case of wrongful dismissal has been stated 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.It 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." In the case of Master and Servant relationship, where an employer claims that he is wrongfully dismissed in breach of contract of service, he cannot say that he continues in service and is entitled to salary as if he has never been dismissed. The only relief he can claim is damages for breach of contract. Principle on which damages for breach of contract are assessed is laid down in Section 73 of the Contract Act and explanation to that section shows that means which existed for remedying the inconvenience caused should be taken into consideration. The plaintiff would thus be entitled to damages only if he has used diligence for another employment in mitigation of the damages and to the extent his salary fell short of that what he was getting from the defendant. The cases relied, namely, B.G. Saraswat Vs. Engineers India Ltd. and Ors., ; State of Haryana and Another Vs. Jagdish Chander, or M.K. Aggarwal Vs. Gurgaon Gramin Bank and Ors. are not of any help in this case as in those cases the employee was entitled to be re-instated on termination of service being held illegal. Plaintiff has not stated in the plaint either that he was not gainfully employed anywhere or that he has taken any steps for getting alternate suitable employment and if so to what effect? On the other hand the defendant in the written statement have pleaded that plaintiff has ever since the termination of his services by the defendant has been serving with M/s. Oriental Travels Pvt. Ltd., New Delhi. The plaintiff in para 12 of his replication has stated as under: "...It is denied that the plaintiff has been serving with Oriental Travels (P) Ltd., New Delhi ever since on the termination of his services as alleged. It is submitted that the plaintiff could not get any suitable employment and was sitting idle and was under deep agony and depression. Shri i.S. Goel (since deceassed) was a friend of the plaintiff and was a Director with Oriental Travels (P) Ltd. He advised the plaintiff to work in his company instead of sitting idle and he said that the plaintiff would not be in his regular employment. He would pay a sum of Rs.500.00 p.m. as salary and Rs.500.00 p.m. towards his conveyance charges. The plaintiff out of sheer helplessness accepted this arrangement which continued from middle of April till August, 1977. The plaintiff felt dis heartened as he could not get any employment and ultimately he terminated this arrangement." In his statement as PW.1 the plaintiff has deposed as under: "..After the receipt of the letter Ex.P.5 I went to various places but I was not given any job by any one except in May, 1975 I was offered job of Rs.500.00 per month by Oriental Travels Pvt. Ltd. and travelling allowance of Rs.500.00 . I joined that job and continued for about two years and two months." In cross-examination he has stated that he had applied to various companies for the job in writing after his services were terminated by the defendant, and his applications were refused orally and not in writing, but he has not placed on record the applications that may have been made by the plaintiff to any company. As already noticed such plea had not been taken in the plaint. On the other hand DW.2 Shri G.S. Sharma for the plaintiff has deposed that he had known M/s. Oriental Travels Pvt. Ltd. who are long established in the travel trade and the plaintiff after leaving defendant had started working with Oriental Travels Pvt. Ltd. as a Director. In cross- examination it was not disputed that the plaintiff was employed as Director with Oriental Travels Pvt. Ltd. Admittedly, the plaintiff was employed with Oriental Travels Pvt. Ltd. after his services were terminated by the defendant. The terms and conditions and the salary at which the plaintiff was appointed would be the matter of records of that company but no effort has been made by the plaintiff to examine anyone from that company. Ex.P.1 is a letter dated 3.9.1973 addressed by plaintiff to Shri Dott C. Garagozzo of the defendant in Rome wherein he had inter-alia stated as under: "Presently I am being offered a post of Managing Director by M/s. Oriental Travels (apart from the facts that I own a few shares in the company) and the monthly sum of Rs.4,000.00 . This is really a tempting offer and I have been considering the same very deeply mainly because I see no future for me in Alitalia in terms of status and finance" Now he admits that he joined the same company after termination of his service by defendant. It cannot be believed that within a period of 15/16 months after this letter the value of the plaintiff for the said Travel Company would have come down to the position that the plaintiff would have been appointed as Director on a meagre salary of Rs.500.00 or he would have accepted and agreed to serve them on a salary of Rs.500.00 p.m. The statement of the plaintiff that he was employed at a salary of Rs.500.00 does not inspire confidence and is a self serving statement. Ex.D-5 is the application of the plaintiff made to the Commissioner, Employees Provident Fund, New Delhi for transfer of his provident fund account from the name and address of the previous employer M/s. Alitalia Italian Airlines to the name and address of his present employer M/s. Oriental Travels Pvt. Ltd. where it is stated that the plaintiff had joined the new employer on 15.4.1975. This letter is dated 27.11.1976. How long and on what salary plaintiff actually served there could be proved from the records but Plaintiff has failed to produce the relevant records. The plaintiff has thus withheld the best evidence available to prove this material fact and adverse inference arises against the plaintiff that he was gainfully employed with the said company on terms and benefits which were not less favourable to what he was getting from the defendant. He has also failed to prove when his services were terminated by that Company and why; Also once the plaintiff got alternative suitable employment after his services were terminated by the defenant, his right to claim damages after his termination by the second employer would not give him any fresh cause of action to claim damages from the defendant. The nett result is that after the services of the plaintiff were terminated on 31.12.1974 he remained unemployed upto 14.4.1975, i.e., for about 3-1/2 months. His last salary in the defendant as admitted by him was Rs.2275.00 . As appears from letter Ex.P/2 sent by defendant to the plaintiff, besides salary he was also entitled to the following allowances: 1. Entertainment Allowance Inr 100 p. m. 2. Conveyance Allowance Inr 250 p. m. 3. House Rent Allowance Inr 500 p.m. As his services have been terminated, he would not be entitled to Entertainment Allowance of Inr 100. So besides salary of Rs2275.00 he was getting Inr 750 as allowances. Thus his total salary at the time of termination by defendant was Rs.2275.00 plus Inr 750, i.e., Rs.3,025.00 p.m. The plaintiff has thus suffered loss of salary for 3- 1/2 months at the rate of Rs.3,025.00 p.m. He is entitled to be compensated to this extent only. He is accordingly entitled to an amount of Rs.10,587.00 only as compensation for wrongful dismissal.
(14) Issue No.7.:Relief. The suit of the plaintiff is partly decreed to this extent and I accordingly pass a decree in favour of the plaintiff and against the defendant for recovery of Rs.10,587.00 with interest at the rate of 6% p.a. from the date of institution of the suit till realisation. Plaintiff has not come with clean hands and has concealed and withheld best evidence and major part of his claim is being disallowed. As such he is not entitled to the costs of the suit.