Delhi District Court
Gilbert Benjamin vs Mercury Travels Ltd on 22 November, 2023
IN THE COURT OF SH.GAURAV RAO, ADJ-03 / NEW
DELHI DISTRICT, PATIALA HOUSE COURTS, NEW
DELHI.
CS No. 267/2018
CNR No. DLND01-002419-2018
Mr. Gilbert Benjamin
S/o Sh. N. Benjamin,
R/o 18/49, Dakshinpuri,
Sector-5, New Delhi-110062
......Plaintiff
Versus
1. M/s Mercury Travels Ltd.
Through its Managing Director,
Ground Floor, Jeevan Tara Building,
Parliament Street,
Opp. Patel Chowk Metro Station,
New Delhi - 110001.
2. The Oberoi
Through its Managing Director,
Dr. Zakir Hussain Marg,
New Delhi - 110003.
....Defendants
Date of institution : 23.03.2018
Date on which reserved for judgment : 07.11.2023
Date of decision : 22.11.2023
Decision : Dismissed
CS No. 267/18 Gilbert Benjamin Vs. Mercury Travels Ltd. & anr. 1/28
JUDGMENT
1. The present suit has been filed by the plaintiff against the defendants for recovery of Rs. 8,38,276/- as damages along with future and pendentlite interest.
1.1 The suit was initially filed before the court of Ld. ADJ-05, South District, Saket Court Complex and vide orders dated 24.02.2018 passed in CS No. 8594/16 the plaint was returned, on account of lack of territorial jurisdiction and thereafter the same was filed before this court.
1.2 Before the plaint was returned, defendant no. 2 already stood deleted from the array of parties vide orders dated 25.07.2016 as is reflected in orders dated 08.01.2018.
1.3 As the plaint was returned, the trial had to start denovo as also appears to be the case from the proceedings conducted by the Ld. Predecessor. Only defendant no.1 filed the written statement and no written statement was ever filed on behalf of defendant no.2 though Ld. Counsel regularly appeared for defendant no.2 as is evident from the records.
Plaint/plaintiff's version CS No. 267/18 Gilbert Benjamin Vs. Mercury Travels Ltd. & anr. 2/28
2. It is the case of the plaintiff that he was appointed as Chauffeur/Driver by defendant no. 1 vide letter dated 22.05.1996 on salary of Rs.1844/- as per terms & conditions mentioned in the said appointment letter, which appointment was confirmed after probation period vide letter dated 31.01.1997 and his pay & allowance was revised vide letter dated 01.04.1998.
2.1 It is further his case that his monthly emoluments were revised vide letter dated 01.04.1998 and gross monthly salary was Rs.2839/- and vide letter dated 01.04.1998, the defendant no. 1 also sanctioned performance incentive of Rs.3000/- per annum to him on the basis of his performance which was again sanctioned vide letters dated 24.08.1999, 18.09.2000, 27.09.2005, 24.07.2006, 08.01.2008, 24.12.2009, 01.04.2012, 02.04.2013 and 01.04.2014.
2.2 It is his case that on 02.04.2013 defendant no. 1 issued a letter to him showing target performance award of Rs.8500/-, his pay scale was revised year by year and his last drawn salary, as per letter dated 01.04.2015 issued by defendant no. 1, was Rs.13,684/- and performance award was Rs.7000/-.
2.3 It is his case that he was suddenly shocked to receive letter dated 01.04.2016, issued by defendant no.1's V.P. Marketing & HR, wherein it was mentioned that he has worked with it from 22.05.1996 to 31.03.2016 and also allegedly shown CS No. 267/18 Gilbert Benjamin Vs. Mercury Travels Ltd. & anr. 3/28 acceptance of his resignation letter and that he was issued a cheque of Rs. 3,20,000/- as full & final settlement.
2.4 It is his case that he contacted the office of defendant no. 1 at defendant no. 2 i.e. "The Oberoi" on 04.04.2016 & 30.04.2016 and apprised them that he has not signed any resignation letter as alleged and that defendant no. 1 misused the blank papers signed & handed over by him at the time of his appointment. It is his case that he objected to the same as it caused wrongful loss to him & wrongful gain to the defendant and when he did not accept the resignation letter & cheque amount, the officials of the defendant advised him to encash the said cheque of Rs.3,20,000/- while further assuring to talk on other issues shortly.
2.5 It is his case that he is/was physically & mentally fit for doing the job of chauffeur till the age of retirement and his job is/was the only source of income for him & his family members and his performance during his job is evident from the award given by defendant.
2.6 It is his case that he was appointed by defendant no. 1 but since the defendant is/was providing services, through him, to defendant no. 2 and his duties were also assigned by defendant no. 2, as such, defendant no. 2 is also impliedly his employer and therefore he also visited its office on 04.04.2016 and 30.04.2016 where it was decided that 61 months remain till his retirement CS No. 267/18 Gilbert Benjamin Vs. Mercury Travels Ltd. & anr. 4/28 and total amount accumulated on the basis of last drawn salary of Rs.13,789/- per month is Rs. 11,58,276/- and it was advised by the defendants that he should deposit the cheque of Rs.3,20,000/- and they promised to pay the balance amount of Rs.8,38,276/- to him on or before 15.05.2016.
2.7 It is his case that accordingly, as per the assurances, promises & undertakings given by the officials of the defendants, he deposited the said cheque of Rs. 3,20,000/- under protest and also wrote a letter to the defendants with the hope that balance amount of Rs.8,38,276/- would be released to him.
2.8 It is his case that after about 20 years of service, the decision taken by the defendants, all of a sudden, is/was dishonest, fraudulent, highly unjust, illegal, arbitrary, irrational, unlawful, unreasonable and contrary to the principle of equity & natural justice and the defendants ignored his performance, during services rendered to them.
2.9 It is his case that after expiry of the stipulated period i.e. 15.05.2016, the defendants avoided him, did not pay any amount to him despite repeated requests and having left with no option, he got issued one legal notice dated 26.05.2016, through his counsel, through registered post which was duly served upon the defendants, however, neither the defendants replied the said notice nor have paid the amount till date.
CS No. 267/18 Gilbert Benjamin Vs. Mercury Travels Ltd. & anr. 5/28 2.10 Hence, the present suit.
Written Statement/version of the defendant no. 1
3. It was pleaded that the present suit is not maintainable being false, baseless and without any cogent grounds.
3.1 It was pleaded that it is a known, reputed company registered under the Companies Act and is one of the best companies in the field of Tours & Travels in India as well as overseas and it has a prestigious clientele as is clear from the its official website and further it has its own management and it does its own day to day affairs without any external control or supervision.
3.2 It was pleaded defendant no. 2 is neither in its management nor in any position to control it and has in fact been wrongly impleaded in the present suit.
3.3 It was pleaded that that plaintiff was its employee from 20.05.1996 to 31.03.2016 and he left the job voluntarily & with his sweet will as he tendered resignation dated 31.03.2016 without any force, undue influence/pressure or allurement and same was accepted by it on 01.04.2016 and therefore he does not have any locus standi to file the present suit.
CS No. 267/18 Gilbert Benjamin Vs. Mercury Travels Ltd. & anr. 6/28 3.4 It was pleaded that while accepting the resignation, it, considering his long and sincere service, offered/rather paid Rs. 3,20,000/- as financial assistance, as a goodwill gesture and all outstanding statutory employment dues such as PF, earned leaves, gratuity etc. amounting to Rs. 1,32,978/- were also paid against the full & final settlement vide cheque no. 653730 dated 01.04.2016. It was pleaded that the plaintiff has not approached the court with clean hands as he concealed these material facts.
3.5 It was pleaded that the plaintiff executed receipt of settlement agreement dated 01.04.2016, encashed both the cheques and now under the misguidance of some unscrupulous person he has filed the present suit to extract more money from it, which amounts to blackmailing.
3.6 It was pleaded that it was the plaintiff who offered to resign from the job, for reasons best known to him and it was denied that letter of resignation was framed or that he was thrown out of the company.
3.7 It was denied that plaintiff tried to contact or meet it ever on the dates claimed or that he did not sign any resignation letter. It was denied that some blank papers were got signed from him at the time of his appointment. It was denied that he was advised by its official to accept the amount or that he accepted the cheque under protest.
CS No. 267/18 Gilbert Benjamin Vs. Mercury Travels Ltd. & anr. 7/28 3.8 It was denied that balance payment of Rs.
8,38,276/- was promised to him and it was reiterated that he resigned himself as well as signed the documents/receipt for full & final settlement without any protest or demur.
3.9 It was denied that it had received legal notice and it was pleaded that all the dues were paid to the plaintiff a goodwill gesture.
Status of defendant no. 2
4. No WS was filed on behalf of defendant no. 2 and both the defendants were proceeded exparte vide orders dated 21.11.2022.
Replication
5. In his replication, the plaintiff denied the averments of the written statement while simultaneously reiterating and reaffirming the contents of the plaint.
Admission/denial
6. Plaintiff filed his affidavit of admission/denial, however, no affidavit of admission/denial was filed by the defendants.
CS No. 267/18 Gilbert Benjamin Vs. Mercury Travels Ltd. & anr. 8/28 Issues
7. On the basis of pleadings of the parties, following issues were framed, by the Ld. Predecessor of this court, vide proceedings dated 30.10.2018:-
1. Whether plaintiff is entitled to decree of damages of Rs.8,38,276/- along with future and pendentelite interest? OPP.
2. Relief.
Plaintiff's Evidence
8. To prove his case, plaintiff examined himself as PW1, tendered his evidence by way of affidavit Ex. PW1/1 and relied upon the following documents:-
A. Copy of letter dated 22.05.1996 as Ex. PW-1/A. B. Copy of letter dated 31.01.1997 as Ex. PW-1/B. C. Copy of two letters dated 01.04.1998 as Ex. PW-1/C and D. D. Copies of letters dated 24.08.1999, 24.08.1999, 18.09.2000, 18.09.2000, 27.09.2005, 24.07.2006, 08.01.2008, 24.12.2009, 01.04.2012, 02.04.2013, 01.04.2014, 01.04.2016 as Ex. PW-1/E (colly.) E. Legal notice dated 26.05.2016 as Ex. PW-1/H. F. Original postal receipts dated 27.05.2016 as Ex. PW-1/I and Ex. PW-1/J. CS No. 267/18 Gilbert Benjamin Vs. Mercury Travels Ltd. & anr. 9/28 Findings
9. I have heard the arguments advanced by the Ld. Counsel for the plaintiff, considered the record carefully as well as gone through the written arguments and the case laws relied upon by the plaintiff. My issue-wise finding is as under:-
Issue no. 1:- Whether plaintiff is entitled to decree of damages of Rs. 8,38,276/- along with future and pendente lite interest? OPP.
9.1 In nutshell the plaintiff has filed the present suit seeking compensation/damages for his illegal termination. It is his case that he was appointed as a Chauffeur/Driver by defendant no. 1 and though he was to retire at the age of 58 years, however, his employment was arbitrarily, illegally and whimsically terminated by defendant no. 1. It is his case that he had never resigned from the job and defendant no. 1 misused blank signed documents, signed by him at the time of his appointment, to claim that it was he who had tendered his resignation which was accepted by defendant no. 1.
9.2 At the outset, it will be worthwhile to point out that the plaintiff while alleging that he had never resigned from defendant no. 1, has not prayed for reinstatement. He has merely claimed damages of Rs. 8,38,276/- along with interest against CS No. 267/18 Gilbert Benjamin Vs. Mercury Travels Ltd. & anr. 10/28 the defendants. This amount has been calculated by the plaintiff on the basis of the salary he would have received had he continued in the service and retired at the age of 58 years. It has been claimed by him, in para 7 of his plaint, that on his visit to the office of defendant no. 2 it was decided that as 61 months remain till his retirement the total amount, as per the last drawn salary of Rs.13,789/- accumulates to Rs.11,58,276, out of Rs.
3,20,000/- were paid to him and he was assured that the balance of Rs. 8,38,276/- i.e the suit amount would be released to him by 15.05.2016. It his case that the said balance amount was never released to him.
9.3 To prove his employment as Chauffeur/driver with defendant no. 1, plaintiff has placed on record one appointment letter dated 22.05.1996 i.e. Ex. PW1/A. As per Ex. PW1/A plaintiff's employment was a temporary one which could be terminated by giving 24 hours notice. Ex. PW1/A is reproduced hereunder:-
"22 May, 96 Mr. Gilbert Benjamin 18/49, DDA Flat Dakshinpuri Ext.
New Delhi-110062.
Dear Mr. Benjamin, SUB: APPOINTMENT AS A TEMPORARY CHAUFFEUR This has reference to your application dated 21.5.96 and the subsequent interview held for the above mentioned post.
This is to inform you that you have been selected for the post of a Temporary Chauffeur. You will be engaged as a Temporary Chauffeur with effect from 22.5.96 for an initial period of 56 days on monthly consolidated salary of Rs 1844/-
CS No. 267/18 Gilbert Benjamin Vs. Mercury Travels Ltd. & anr. 11/28 You will not be entitled to any other allowances or benefits. Your temporary employment shall automatically be terminated and your name shall be removed from the muster roll of temporary employees with effect from the close of the working hours of 16 July 96 without any further notice or intimation. Your employment can be terminated anytime with a 24 hours notice. If the above terms and conditions are acceptable to you, please convey your acceptance by signing the duplicate copy of this letter.
Thanking you, Yours sincerely for MERCURY TRAVELS LIMITED GK KHANNA PRESIDENT"
9.4 Except for Ex. PW1/A plaintiff has not proved on record any other document which could establish as to what exactly were the terms & conditions of his employment and it appears from his legal notice Ex. PW1/H, particularly para 7 & 8, that he was appointed as a Driver/Chauffeur on 01.08.1996 and his retirement age is/was 58 years. Relevant portion of Ex. PW1/H in this regard is reproduced hereunder:-
"7. That you the above addressees had appointed my client as a driver (Chauffeur) on 01.08.1996............
8. That my client is physically and mentally fit for doing the job of driver (Chauffeur) with you the above addressees. The retirement age of my client is 58 years."
9.5 Hence as against his pleadings that he was appointed as a Chauffeur/driver vide letter dated 22.05.1996 i.e. Ex. PW1/A, in legal notice Ex. PW1/H it is claimed that he was appointed as a Chauffeur/driver on 01.08.1996. Appointment CS No. 267/18 Gilbert Benjamin Vs. Mercury Travels Ltd. & anr. 12/28 letter dated 01.08.1996 has not been proved on record by the plaintiff, for the reasons best known to him.
9.6 After the expiry of the probation period, vide letter dated 31.01.1997 i.e. Ex. PW1/B, the plaintiff's appointment was confirmed w.e.f. 01.02.1997 while also making it clear that all the terms & conditions of his employment remain unaltered. Ex. PW1/B also talks about appointment letter dated 01.08.1996, however, as discussed above, the same was never proved on record. Why the plaintiff did not prove his appointment letter dated 01.08.1996 on record could not be explained by the plaintiff. Ex. PW1/B is reproduced hereunder:-
"31st January 1997.
Mr. Gilbert Benjamin 18/49, DDA Flat Dakshinpuri Extn.
New Delhi-110062.
SUB: CONFIRMATION Dear Mr. Benjamin, With reference to your appointment letter dated 1st August 1996. I am glad to inform you that your performance during your probation has been to our satisfaction. We are therefore, pleased to confirm your services w.e.f. 1st February 1997. All terms & conditions of your employment remain unaltered. Please sign the duplicate copy as a token of your acceptance.
We look forward to your continued commitment to Mercury Travels.
Best Regards, PRASUN DEB SR. VICE PRESIDENT"
CS No. 267/18 Gilbert Benjamin Vs. Mercury Travels Ltd. & anr. 13/28 9.7 Till his resignation plaintiff's salary was revised periodically and he was given performance award/incentives and other allowances as is evident from letters dated 01.04.1998 till 01.04.2014 i.e. Ex. PW1/C, Ex. PW1/D & Ex. PW1/E (colly).
9.8 It is the plaintiff's case that though he never resigned from the job, however, on 01.04.2016, he received a letter Ex. PW1/E (colly), from defendant no. 1, according to which he had resigned from the job, which resignation was accepted by defendant no. 1. Ex. PW1/E (colly) dated 01.04.2016 is reproduced hereunder:-
"April 01, 2016 TO WHOMSOEVER IT MAY CONCERN This is to certify that Mr. Gilbert Benjamin (EMP5508) has worked with us from May 22, 1996 till March 31, 2016. We wish him all the best for his future assignments For Mercury Travels Limited Nancy Castelino VP-Marketing & HR"
"April 1, 2016 Acceptance of Resignation Mr. Gilbert Benjamin EMP5508 Dear Gilbert, This has reference to your resignation. This is to inform you that the Management has accepted the same. You have been relieved from your duties from closing hours of March 31, 2016. You are required to contact the Office for your full & final settlement on any working day during working hours. for Mercury Travels Limited Nancy Castelino VP-Marketing & HR"
CS No. 267/18 Gilbert Benjamin Vs. Mercury Travels Ltd. & anr. 14/28 9.9 Though it is the plaintiff's case that at the time of his appointment he had signed certain blank documents/papers and the same were subsequently misused by defendant no. 1 to claim that it was the plaintiff who had resigned, however, the plaintiff's claim in this regard does not inspire confidence. No doubt the resignation letter has not been proved on record by the defendants and the plaintiff's case that he never tendered any resignation has remained uncontroverted, however, it has emerged on record that the resignation was indeed tendered by the plaintiff and the same was duly accepted by defendant no. 1. At the time when the plaintiff had tendered his resignation he was handed over a cheque of Rs. 3,20,000/- which was duly encashed by him. If indeed it was a case of wrongful termination and the plaintiff had never tendered his resignation and rather defendant no. 1 had misused blank documents as is alleged to show that it was the plaintiff who had resigned, then in my considered opinion, plaintiff would not have accepted and encashed the above cheque. The very fact that the cheque was duly encashed itself proves that it was the plaintiff who had tendered his resignation which was accepted by defendant no. 1.
9.10 In fact during the trial the plaintiff's stand as regards resignation letter Ex. PW1/E (colly) remained highly contradictory and inconsistent. In the plaint it has been averred in para 5 as under:-
"That the plaintiff contacted to office of defendant no. 1 at defendant no. 2 on 04.04.2016 and 30.04.2016 and apprised them that the plaintiff has not signed any resignation letter as CS No. 267/18 Gilbert Benjamin Vs. Mercury Travels Ltd. & anr. 15/28 alleged and it presumed that the defendant no. 1 misused the blank papers signed by the plaintiff handing over at the time of appointment and later on misused by the defendant no. 1 and the plaintiff resisted the same and objected for misuse of said blank documents......."
9.11 On the other hand in Ex. PW1/H it was claimed as under:-
"10. That you the above addressees acting in collusion, connivance and conspiracy with each other and acting in a highly dishonest and fraudulent manner had obtained the signature of my client on blank printed performa, blank papers, blank stamp paper and blank printed forms without narrating the contents of the documents to my client.
11. That you the above addressees acting in a dishonest and fraudulent manner and with sole intention to cause wrongful gain to themselves and wrongful loss to my client by saying that you the above addressees have launched a golden hand shake policy and you the above addressees had given the sealed envelope to my client. When my client after coming his house opened the envelope then my client find the cheque of Rs. 3,20,000/-, acceptance of resignation and relieving certificate then my client had received the serious shock and came to know that you the above addressees dishonestly, fraudulently and maliciously prepared the resignation letter of my client against the will and consent of my client and without knowledge and consent of my client and have issued the acceptance of resignation and relieving certificate.
9.12 Furthermore in the replication in para 2 the plaintiff averred as under:-
"........It is submitted that the defendant no. 1 on the pretext of golden hand shake policy signed on some blank paper in the evening of 01.04.16 and the plaintiff signed the same in good faith".
9.13 So on one hand it is claimed in the plaint that blank documents signed by him at the time of appointment were misused by defendant no. 1, to show his resignation, on the other CS No. 267/18 Gilbert Benjamin Vs. Mercury Travels Ltd. & anr. 16/28 hand in the legal notice it is claimed that his signatures were obtained on blank printed proforma, blank papers without narrating the contents of the same to him. Whereas in the replication it is claimed that the said document/resignation letter dated 01.04.2016 was got signed by him on 01.04.2016 on the pretext of golden hand shake and he signed the same in good faith.
9.14 Similarly, the claim made in Ex. PW1/H that he was given a sealed envelope which he opened in the house and found it containing the cheque and acceptance of resignation is also missing in the plaint. As against the legal notice Ex. PW1/H, in the plaint it is averred in para 4 as under:-
"4. That all of a sudden the plaintiff got shocked when received letter dated 01.04.2016 issued by V.P. Marketing & HR of defendant no. 1 wherein it is mentioned that the plaintiff has worked with defendant no. 1 from 22.05.1996 to 31.03.2016 and also alleged and shown acceptance of resignation letter from plaintiff and also issued one cheque of Rs. 3,20,000/- to the plaintiff as full and final settlement."
9.15 So what emerges from the record and the inconsistent stand taken by the plaintiff is that he had himself tendered the resignation and received Rs. 3,20,000/- at the time of tendering, acceptance of the resignation. It also otherwise does not appeal to a prudent mind that defendant no. 1 would keep certain blank documents, signed by the plaintiff with it for more than 2 decades and misuse them to terminate the plaintiff's employment. Furthermore if that was the intention of defendant CS No. 267/18 Gilbert Benjamin Vs. Mercury Travels Ltd. & anr. 17/28 no. 1 i.e. to terminate the plaintiff, defendant no. 1 would not have paid a sum of Rs. 3,20,000/- to him, as it was under no obligation whatsoever to pay the said amount. In fact in para 4 of its written statement defendant no. 1 had specifically pleaded as under:-
"4. That the Plaintiff has not approached this court with clean hands. Plaintiff intentionally and knowingly did not mentioned in his suit that he received two Cheques one against goodwill gesture amounting Rs. 3,20,000/- and other amounting to Rs. 1,32,978/- vide Cheque No. 653730 dated 01.04.2016 against his PF, gratuity earned leaves etc."
9.16 Similar averment was made in para 6 of the written statement. In the replication plaintiff did not even once specifically deny that he did not receive the sum of Rs. 1,32,978/- or that defendant no. 1 was making a false claim in that regard. He did not file his statement of account to rebut defendant no.1' s stand in that regard. Having not done so, in the absence of specific denial in the replication it emerges that the plaintiff had indeed received the said amount of Rs. 1,32,978/- in addition to Rs. 3,20,000/- and not only plaintiff failed to explain as to under head he received the said amount but the concealment by the plaintiff also creates doubt upon the veracity, genuineness of his claim. Though not proved by the defendants but the certified copies of both the cheques along with settlement agreement & the resignation letter duly bearing the signatures of the plaintiff are available on record.
CS No. 267/18 Gilbert Benjamin Vs. Mercury Travels Ltd. & anr. 18/28 9.17 Furthermore the plaintiff claimed, in para 8 of his plaint, that he had deposited/encashed the cheque of Rs. 3,20,000/- under protest and had also written a letters to the defendants with the hope that balance amount of Rs. 8,38,276/- shall be released by them to him, however, no such letter was ever proved on record by the plaintiff. There is no communication whatsoever proved on record vide which the plaintiff had lodged the protest and informed the defendants that he had never tendered the resignation or that defendants had misused the blank papers/documents signed by him at the time of his appointment or that he was encashing the cheque under protest.
9.18 In the legal notice Ex. PW1/H it was claimed as under:-
"16. That my client has deposited the aforesaid cheque of Rs. 3,20,000/- and has given an intimation to you that he has not accepted the said amount of Rs. 3,20,000/- as full and final settlement as your promised to pay the balance amount of Rs. 8,38,276/- on or before 15.5.2016."
9.19 However, plaintiff miserably failed to prove any such intimation given by him to the defendants at the time of deposit/encashment of the cheque.
9.20 The plaintiff had also claimed that on 04.04.2016 and 30.04.2016 he had apprised the defendant's officials that he had never tendered any resignation and that defendant no.1 had misused his signed/blank documents, however, the plaintiff CS No. 267/18 Gilbert Benjamin Vs. Mercury Travels Ltd. & anr. 19/28 miserably failed to prove that he had met the defendant's officials as such or lodged any such protest. Plaintiff also failed to prove that he had encashed the cheque only upon the defendant's promise to pay the amount of Rs. 8,38,276/- to him on or before 15.05.2016. It is to be seen, as discussed above, that plaintiff had received two cheques, one for Rs. 1,32,978/- which was towards all his claims and dues and another cheque of Rs. 3,20,000/-. On what account the plaintiff had received the said cheque but for tendering resignation and its acceptance by the defendant has not been explained by the plaintiff. It is not the plaintiff's case that he had received the said cheques towards any outstanding dues of salary etc. Once he accepted the said cheque and encashed the same he had no reasons to be aggrieved whatsoever.
9.21 Plaintiff had also claimed that he was assured by the defendant that he shall be paid Rs. 8,38,276/- on or before 15.05.2016 i.e. balance salary for the remaining period of employment, however, plaintiff miserably failed to prove that the defendant had indeed so assured or undertaken to make the said payment to him towards compensation. No document whatsoever was proved on record in this regard by the plaintiff. If indeed defendant no. 1 had agreed to pay the above amount, as is claimed by the plaintiff, then in my considered opinion, the plaintiff would have mentioned the same on the resignation letter itself or would have communicated the same to the defendant before encashment of the cheques. Having not done so I find no CS No. 267/18 Gilbert Benjamin Vs. Mercury Travels Ltd. & anr. 20/28 reasons to agree with the plaintiff. Plaintiff cannot take benefit twice i.e. by encashing the cheques and then claiming that same was done in protest as an amount of Rs. 8,38,276/- still remain due.
9.22 The fact remains that at best he was a contractual employee, whose employment could be terminated by 24 hours notice and that he had tendered his resignation which was accepted by defendant no. 1. Even if it is presumed that he had not tendered the resignation or that he was asked upon to submit the resignation letter, though there is no cogent material, reason to presume the same in view of the above discussion, still the fact remains that he encashed the cheques, one towards the dues and other which was given by defendant no. 1 without any obligation as such, without lodging any protest etc. which itself dis-entitles him to seek any claim, recovery towards compensation/damages from the defendant.
9.23 As already discussed above, though as per the plaintiff he was to retire at the age of 58 years, however, no such appointment letter was proved on record by him. As per Ex. PW1/A the only document regarding the appointment filed by the plaintiff provides that his employment could be terminated any time with 24 hours notice.
9.24 Though the plaintiff is seeking damages/ compensation, which otherwise in essence is the salary which he CS No. 267/18 Gilbert Benjamin Vs. Mercury Travels Ltd. & anr. 21/28 might have received/earned till his retirement at the age of 58 years, however, it is not the plaintiff's case that nor he has been able to prove that after his resignation he was unable to employ himself gainfully. It is not the plaintiff's case that the defendant was even remotely responsible for him not getting re-employed. In fact he has not pleaded nor proved that he had made efforts to get himself gainfully employed but failed to succeed in the same. Plaint is absolutely silent as regards the employment, job status of the plaintiff since his resignation.
9.25 The law is well settled that a contract of personal service cannot be specifically enforced by the court and it also well settled that as well as equity demands that plaintiff cannot continue to sit idle for an indefinite period of time and claim damages/compensation for the remaining years/tenure of his employment. As per section 73 of the Indian Contract Act a party claiming damages for the breach of contract has a duty to mitigate the losses suffered as a result of breach of contract. In the present case, merely because plaintiff does not make any effort to employ himself somewhere else, he is not entitled to any damages/dues for the period he might have remained unemployed.
9.26 The scope of damages in a contract of employment which provides termination of service by means of a notice of a certain period was considered by the Hon'ble High Court of Delhi in L.M.Khosla Vs Thai Airways International Public CS No. 267/18 Gilbert Benjamin Vs. Mercury Travels Ltd. & anr. 22/28 Company Ltd. & Anr. MANU/DE/3866/2012 wherein it was held that a contract of private employment is not similar to the public employment. It was held that a contract of employment which provides for termination of services by one month's notice, the employee will only be entitled to one month's pay in terms of employment contract. It was further held that in such cases, an employee is not entitled to any relief of continuation in service or pay with consequential benefits for alleged remaining period of service till the date of his superannuation. In this matter, the Hon'ble High Court also interpreted the ratio of the decision in the matter of S.S. Shetty Vs. Bharat Nidhi Ltd., AIR 1958 SC 12 and held as under:-
"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.
Plaintiff has in fact received one month's pay and therefore his claim will stand satisfied in law and he is not entitled to any reliefs as prayed for in prayer clauses in the suit."
CS No. 267/18 Gilbert Benjamin Vs. Mercury Travels Ltd. & anr. 23/28 9.27 The observations made in L.N.Khosla's case (supra) were reiterated by the Hon'ble High Court of Delhi in Naresh Kumar Vs Hiroshi Maniwa & Ors. 2015 SCC Online Del 13315 wherein it was observed as under:-
"3. In view of ratio of the judgment of the Supreme Court in the case of S.S. Shetty Vs. Bharat Nidhi Ltd., AIR 1958 SC 12 it is clear that even if there is an illegal termination of an employee by a private employer, at best the employee is entitled to the salary for the notice period. I have had an occasion to deal with the ratio in the judgment in the case of S.S. Shetty (supra) in various cases and the last of such cases is the case of L.M. Khosla Vs. Thai Airways International Public Company Limited & Anr., CS(OS) No.673/1997, decided on 01.08.2012.........
..........5. In the case of GE Capital Transportation Financial (supra), I have referred to the earlier judgment in the case of Shri Satya Narain Garg (supra), and also the fact that contracts which are determinable in nature cannot be specifically enforced as per Section 14(1)(c) of the Specific Relief Act, 1963.
I have also referred to the fact that if the contract of employment provides for one month's notice, then, the maximum entitlement of damages of an employee who alleges illegal termination is one month's pay. Paras 10 to 12 of the judgment in the case of GE Capital Transportation Financial (supra) are relevant and the same read as under:- "10. In fact, the subject suit was also barred by Section 14(1)(c) of the Specific Relief Act, 1963 which provides that the contract which is in its nature determinable, cannot be specifically enforced. I have referred to the fact that the contract was determinable by a one month's notice as per clause 7 of the terms and conditions of the letter dated 21.4.1998 and therefore the contract which was determinable by one month's notice cannot be specifically enforced. What cannot be done directly cannot be done indirectly i.e. if there cannot be specific performance of the contract, there cannot be declaration and injunction to continue such a service contract. Section 41(e) of the Specific Relief Act, 1963 provides that injunction will not be granted to prevent breach of the contract, performance of which could not be specifically enforced.
11. Therefore, looking at the matter from the point of view of the contract of personal service not being enforceable under CS No. 267/18 Gilbert Benjamin Vs. Mercury Travels Ltd. & anr. 24/28 Section 14(1)(b) of the Specific Relief Act, 1963, the contract being determinable in nature and hence cannot be enforced as per Section 14(1)(c) of the Specific Relief Act, 1963 or that injunction could not be granted to prevent breach of a contract which cannot be specifically enforced, the suit was clearly barred and not maintainable. The judgment of the trial Court does not refer to the binding provisions of Sections 14(1)(b), (c) and 41(e) of the Specific Relief Act, 1963. To complete the discussion on this aspect, I would once again refer to the recent judgment of the Supreme Court in the case of Binny Ltd. (supra) and which specifically provides that in private contracts i.e. in strict contractual matters, there does not arise the issue of applicability of Administrative Law principles.
12. I have already stated above that even presuming there was breach of contract, at best reasonable damages can be granted and once there is a clause for termination of services by one month's notice, it can only be one month's notice which can be treated as reasonable damages inasmuch as parties understood the period for obtaining of an alternative employment as a one month's notice period-vide SS shetty's case (supra)"
As already stated above, an S.L.P. filed against this judgment has been dismissed."
9.28 Thus, it is a settled preposition that in order to seek damages and compensation, plaintiff must establish in the first instance that he was wrongly terminated from service. In case, it is established that plaintiff was wrongly terminated from service, the next steps would be to ascertain whether the contract of employment was for a fixed period. In case, the contract of employment is not for a fixed period and the contract expressly provides that it is terminable on a certain period of notice, the damages would ordinarily be the salary for the notice period.
9.29 In case, the contract is determinable by giving notice for a prescribed period, the employee would, at best, be CS No. 267/18 Gilbert Benjamin Vs. Mercury Travels Ltd. & anr. 25/28 entitled to receive the pay & allowances for the prescribed notice period and nothing beyond that provided it is established that he has been wrongfully terminated from service. In the present case, plaintiff has miserably failed to demonstrate that he was wrongly terminated from service. He had himself tendered the resignation which was accepted by defendant no. 1. Most importantly defendant no. 1 not only cleared the entire dues but also made a gratuitous payment of Rs. 3,20,000/- which was equivalent to almost two years of plaintiff's salary, though it was under no obligation whatsoever to do so. His remaining dues i.e. gratuity, PF, earned leaves etc. were also cleared and a payment of Rs. 1,32,978/- was made towards the same.
9.30 As far as reliance upon Central Inland Water Transport Corporation Ltd. and anr Vs. Brojo Nath Ganguly and anr (1986) 3 SCC 156 is concerned, suffice would be to say that the said case law does not come to the aid/rescue of the plaintiff. It being a case of contractual employment, defendant no. 1 being a private company there is no applicability of the law laid down in Central Inland (supra) to the facts of the present case. In Shriram Pistons & Rings Ltd. & Anr. vs Shri T.S.Mokha dated 25.01.2012 RFA (OS) No.3/1999 it has been held as under:-
31. In view of the ratio laid down by the Apex court in Binny Ltd. & Anr. Vs. V.Sadasivan & Ors. (Supra), no doubt is left regarding the applicability of Central Inland Water Transport Corporation Ltd. & Anr. Vs. Brojo Nath Ganguly & Anr. (Supra) and Delhi Transport Corporation Vs. DTC Mazdoor Congress CS No. 267/18 Gilbert Benjamin Vs. Mercury Travels Ltd. & anr. 26/28 & Ors.‟ (Supra), only on the undertakings, corporations and Government companies and not a private company.
9.31 As far as defendant no. 2 is concerned, there is no privity of contract between the plaintiff and defendant no. 2.
Plaintiff could not prove any relation between defendant no. 1 and defendant no. 2. Once the employment was given by defendant no. 1, salary was paid by defendant no. 1 and the resignation was also accepted by defendant no. 1, defendant no. 2 in the absence of any material on record to show how it is related to/concerned with the employment of plaintiff with defendant no. 1 is neither a necessary nor a proper party to the present suit. There is no privity of contract between the plaintiff and defendant no. 2 and defendant no. 2 is under no legal or contractual obligation viz-a-viz the plaintiff. Suit of the plaintiff is liable to dismissed against defendant no. 2.
9.32 In view of above discussion, issue no. 1 is decided against the plaintiff.
Relief
10. As issue no. 1 has been decided against the plaintiff, plaintiff is not entitled to any relief. Suit of the plaintiff is liable to be dismissed. I order accordingly.
11. Decree sheet be prepared accordingly.
CS No. 267/18 Gilbert Benjamin Vs. Mercury Travels Ltd. & anr. 27/28
12. File be consigned to the Record Room after due compliance.
Announced in the open Court on 22nd November 2023 (Gaurav Rao) ADJ-03/New Delhi District, Patiala House Courts, Delhi CS No. 267/18 Gilbert Benjamin Vs. Mercury Travels Ltd. & anr. 28/28