Delhi District Court
Naresh Kumar Tyagi vs Ricoh India Limited on 6 February, 2012
IN THE COURT OF DR. NEERA BHARIHOKE, ADJ1 (SOUTH)
SAKET COURTS, NEW DELHI
SUIT NO. 123/11
IN THE MATTER OF:
Naresh Kumar Tyagi
S/o Sh. Dharam Vir Singh
R/o C89, L.I.G. Flats,
Ashok Vihar, PhaseIV ,
New Delhi110052
.... Plaintiff
Versus
Ricoh India Limited
having its registered office at:
52B, Okhla Industrial Estate,
PhaseIII, New Delhi110020
.... Defendant
SUIT FOR DECLARATION, MANDATORY INJUNCTION, PAYMENT OF
ARREARS OF SALARY AND DAMAGES WITH PENDENTE LITE AND
FUTURE INTEREST AND COSTS.
Date of Institution: 08.07.2010
Date reserved for orders: 31.01.2012
Date of pronouncement of Judgment: 06.02.2012
JUDGMENT:
1 Vide this judgement, I shall decide the present suit filed by the plaintiff for declaration, mandatory injunction, payment of arrears of salary and damages with pendente lite and future interest.
2 Brief facts of the case are as under:
Plaintiff was appointed and employed by the defendant company on 20.01.1996 as Sr. Engineer Production at A9, GIDC, Electronics Estate, Gandhinagar, Gujrat, India vide employee code Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 1 of 38 no. T00825 and subsequently on 17.02.1999 plaintiff was transferred by the defendant at its Delhi Branch as Major Account Manager. It is submitted by the plaintiff that he was informed by the defendant vide its letter dated 26.06.2008 of his "Overall Performance Grading for financial year 2007"
and revised compensation details effective from 01.04.08, wherein overall grading was found to be good and the salary of the plaintiff was revised and increased.
3 Thereafter vide letter dated 28.08.08, defendant re designated the plaintiff as Dealer Support Manager in its Delhi branch from 01.09.08 which was completely new assignment of the plaintiff, wherein his job was to provide support to its existing dealers.
4 Plaintiff has further submitted that plaintiff comes within the purview of definition of an industrial workman as provided in Section 2(s) of the Industrial Disputes Act. He has submitted that Dealer Support Manager is only a glorified designation and name assigned to the post of plaintiff and there was no element of management or supervision in the nature of his duties as Dealer Support Manager. There was no subordinate staff whatsoever working under the plaintiff.
5 It is submitted by the plaintiff that defendant always used to sell its products such as photocopier machine, printer through deals to Govt. Departments and agencies and for the first time defendant tried to venture through the plaintiff to sell its aforesaid products to commercial establishments in Delhi, however no training whatsoever was imparted for this new venture by the defendant to the plaintiff and an impossible task was given by the defendant to the plaintiff for finding three new dealers for selling its products within six months.
6 In Overall Performance Grading for financial year 2008 and revised compensation detail effective from 01.04.2009, defendant Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 2 of 38 had mentioned that overall grading of plaintiff needs improvement, however, salary of the plaintiff was revised and increased. It is further submitted by the plaintiff that only six months had elapsed while he was working as Dealer Support Manager from September 2008 to March 2009.
7 Further from 11.11.09, Mr. Sukhdev, Location Head of the defendant started verbally threatening the plaintiff to tender his resignation or else he would be terminated from service without assigning any reasons and he further asked the plaintiff to not to interact with the business dealers and customers and to sit in the office without any work. Mr. Sukhdev also verbally communicated to the business dealers to not to interact with the plaintiff.
8 It is further submitted by the plaintiff that on 25.11.09, Mr. Sukhdev Singh with malafide intention issued false "Inter Office Memo" accusing the plaintiff of non performance and directing the plaintiff to make a complete action plan to achieve his assigned task by 27.11.09, threatening him for corrective actions upto and including termination. The plaintiff replied the said memo vide its reply dated 27.11.09, clearly mentioning therein that accusation of the non performance are false as the plaintiff has been able to achieve 70% of his targets even against the adverse circumstances and action plan to achieve the assigned task has already been handed over to said Mr. Sukhdev Singh for perusal and value addition and plaintiff is not being allowed to work since 11.11.09 by the said Mr. Sukhdev Singh.
9 Plaintiff has submitted that thereafter defendant vide its letter of termination dated 03.12.09 terminated the contract service of the plaintiff without any rules, regulations, legal procedure prescribed and due process of law.
Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 3 of 3810 Plaintiff has submitted that termination of his services is illegal and violative of principles of natural justice as no domestic inquiry was conducted by the defendant prior to issuing letter of termination. Plaintiff has submitted that memo dated 25.11.09 and letter of termination dated 03.12.09 of the defendant is stigmatic and absolutely false.
11 It is further submitted by the plaintiff that act of the defendant in terminating the service of the plaintiff is contrary to the rule in view of the length of service of the plaintiff with the defendant as the plaintiff has been employed and working with the defendant for the last about 14 years from 20.01.1996 on regular basis, however, defendant while removing the plaintiff from his job terminated the services, whereas service of the plaintiff can be terminated only of an employee who is on probation.
12 It is further submitted by the plaintiff that his nature of work with the defendant was perpetual and not on contract basis for a particular project and his performance all along for 14 years with the defendant is satisfactory since his appointment.
13 Further, plaintiff has submitted that on 08.01.2010, he went to the office of the defendant to collect the arrears of his salary amounting to Rs. 1,03,454/, however defendant refused to clear the arrears of salary saying that it would clear the said arrears by way of cheque only if the plaintiff is ready to put his signatures on settlement letter mentioning that he is accepting in full and final settlement the complete arrears of salary till 03.12.09 with one month salary in lieu of his termination of the service, which was rejected by the plaintiff. Thereafter defendant issued a letter dated 08.01.2010 to the plaintiff to collect full and final cheque which was a vague devised by the officials of the defendant so that plaintiff accede to the illegal termination of his service by the Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 4 of 38 defendant and again defendant issued another letter dated 12.01.2010, containing allegations and accusations.
14 Thereafter plaintiff sent a legal notice dated 13.01.2010 to the defendant denying all the allegations made against him in letters of the defendant and stating that termination of service of the plaintiff by the defendant is illegal and wrongful. Defendant replied the legal notice vide its reply dated 28.01.2010. Again plaintiff sent another legal notice dated 11.06.2010 to the defendant calling upon the defendant to withdraw its letter of termination dated 03.12.09, reinstate the plaintiff and allow him to attend the office with full back wages and other emoluments as per its contract of service within 15 days of receipt of the notice. However, defendant instead of acceding to the lawful requests of the plaintiff sent reply dated 23.06.2010.
15 The plaintiff is unemployed since 04.12.2009 in view of the stigmatic letter of termination and he is unable to seek any employment and hence this suit filed by the plaintiff. Plaintiff by way of present suit prayed for passing a decree of declaration declaring the termination service of the plaintiff by the defendant vide termination letter dated 03.12.09 as wrongful, null and void and of no effect for all intent and purposes. He also prayed for passing of decree of mandatory injunction thereby directing the defendant to reinstate him with full back wages and continuity of service as per the defendant's contract and also for decree of Rs. 11, 03,454/ as arrears of salary and damages.
16 Summons of the suit were duly served upon the defendant, pursuant to which defendant appeared and has filed its W/S, in which it is submitted by the defendants that plaintiff has not approached the court with clean hands and present suit has been filed by the plaintiff on false and frivolous allegations.
Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 5 of 3817 All the averments and contentions raised by the plaintiff in his plaint have been denied by the defendant and it is submitted that defendant has worldwide operations through 311 subsidiaries and employing more than 108,477/ employees across the globe. Plaintiff was appointed by the defendant vide appointment letter dated 18.03.1996. At all times, he received full cooperation from the defendant and in the initial years his performance had been satisfactory. However performance of the plaintiff in the recent past started deteriorating and on many occasions plaintiff was repeatedly instructed orally by Sr. Officials of the defendant to improve his performance, but plaintiff did not pay any heed to such instructions. It is further submitted by the defendant that plaintiff had been in service for 14 years, all the possible support and cooperation was extended to him so as to enable him to mend his ways and improve his workings. However, he failed to remedy the situation despite best efforts by the defendant. It is further contended by the defendant that performance of the plaintiff had not been satisfactory against the assigned targets in the first half and in the second half of the financial year 2009 (for short H109 and H209 respectively). Due to plaintiff's low performance in the last half yearly appraisals, he was allotted a rather soft unit target for H109 but his revenue achievement was even worse at 48% of the expected targets. Moreover, his achievement in colour MFP and Printers was nil. He was constantly suggested to prepare action plan to achieve the target in H209 in which he was lagging behind.
18 Defendant has submitted that from the perusal of the overall performance and in particular salary structure for the financial year 20092010 and inter office memo dated 25.11.09, plaintiff was terminated vide notice dated 03.12.09, due to his poor and deteriorating performance. On the contrary plaintiff replied by the letter dated 27.11.09. It is also submitted by the defendant that plaintiff has no right, contractual, ethical or otherwise to remain in the service of the defendant and hence his Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 6 of 38 termination is fully lawful and authorised.
19 All the other allegations of the plaintiff have been denied and it is refuted by the defendant that service can be terminated only of an employee on probation. Defendant has denied that the termination of the plaintiff is punitive simpliciter and has submitted that termination of the plaintiff is valid and authorised by the service condition. Plaintiff has concealed the terms and conditions of his service contract. Defendant has categorically refuted that the redesignation of plaintiff in September 2008 as Dealer Support Manager was altogether a new task/ assignment. Defendant has submitted that plaintiff had already worked as Major Account Manager during February 1999 to August 2008 and had got sufficient experience for handling the new job description/ profile as Dealer Support Manager. Defendant has also denied that the designation of Dealer Support Manager is glorified designation or that there was no element of management or supervision in the nature of duties of the plaintiff or that there was no subordinate staff working under him. It is also submitted that defendant had offered a cheque for a sum of equal to his one month's basic salary in lieu of the notice period for his termination in accordance with his service conditions, but plaintiff declined to receive the same. Hence it is prayed by the defendant suit of the plaintiff merits dismissal.
20 On completion of the pleadings, Ld. Predecessor Court was pleased to frame following issues vide order dated 22.11.2010.
● Whether the termination of the plaintiff's services was illegal or unwarranted?
● Whether the plaintiff is entitled to recover arrears as claimed in the suit?
● Whether the plaintiff is entitled to a decree of Rs. 10 lacs as damages on account of termination, and for loss of reputation and opportunity as claimed.
● Relief.
Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 7 of 3821 Thereafter matter was listed for plaintiff's evidence. In support of his case, plaintiff himself appeared in the witness box and deposed as PW1. Affidavit of evidence of PW1 is placed on record as Ex. PW1/A. In his affidavit PW1 reiterated the facts of the plaint and has placed reliance on the documents Ex. PW1/1 to PW1/16, details of which are as under:
● Ex. PW1/1 is the Salary Slip of the plaintiff for the month December 2008.
● Ex. PW1/2 is the Letter dated 17.02.1999.
● Ex. PW1/3 is the Letter dated 26.06.2008.
● Ex. PW1/4 is the revised compensation details effective 01.04.2008, salary structure FY 20082009.
● Ex. PW1/5 is the Salary Structure FY 20062007.
● Ex. PW1/6 is the Salary Structure FY 20092010.
● Ex. PW1/7 is the inter office memo dated 25.11.09.
● Ex. PW1/8 is the reply dated 27.11.09.
● Ex. PW1/9 is the Letter of termination dated 03.12.09. ● Ex. PW1/10 is the Letter dated 08.01.2010.
● Ex. PW1/11 is the Letter dated 12.01.2010.
● Ex. PW1/12 is the reply dated 28.01.2010.
● Ex. PW1/13 is the Legal Notice dated 11.06.2010.
● Ex. PW1/14 is the postal receipt of the legal notice. ● Ex. PW1/15 is the AD card.
● Ex. PW1/16 is the reply dated 23.06.2010.
● Mark A is the letter dated 28.08.2008.
● Mark B is the Legal Notice dated 13.01.2010.
22 Plaintiff's evidence was then closed and the matter was listed for defendant's evidence. In support of its case, defendant examined only one witness being Sh. Sukhdev Singh as DW1. Affidavit of evidence of DW1 is placed on record as Ex. DW1. DW1 placed reliance upon the documents Ex. DW1/1 to DW1/3.
23 Ex. DW1/1 is the Original Board Resolution and rest of the exhibits i.e. Ex. DW1/2 is the Original confirmation letter dated 12/13.08.1996 and Ex. DW1/3 is the Original offer of appointment dated 18.03.1996 were deexhibited.
Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 8 of 3824 During the stage of cross examination, DW1 brought four documents which are marked as Ex. DW1/3(1), Ex. DW1/3(2), Ex. DW1/3(3) and Ex. DW1/3(4) which are the final statements of dues of Praveen Sinha, Basudev Bhattacharjee, Arindam Mandal and the plaintiff.
25 Defendant's evidence was then closed and matter was listed for final arguments.
26 Ld. Counsel for the plaintiff has argued that documents Ex. PW1/4 and PW1/5 exhibited by the plaintiff, issued by the defendant, show that the performance of the plaintiff in the recent past was good and it is also admitted by the DW1 in his cross examination that certificate Ex. DW1/CW1 was awarded by the defendant to the plaintiff and the plaintiff was given a Foreign tour in July 2008 for his outstanding performance. He further argued that plaintiff is covered within the definition of industrial workman as provided under Section 2(s) of Industrial Disputes Act, 1947 and there was no subordinate staff whatsoever working under the plaintiff and there was no element of management or supervision in nature of duties of plaintiff as Dealer Support Manager.
27 Ld. Counsel for plaintiff also argued that act of the defendant is contrary to the provisions and principles of Industrial Disputes Act as prior to removal/ termination, domestic enquiry is mandatory to ascertain the allegations leveled in the memo and submitted that this fact is also admitted by the DW1 in his cross examination dated 15.03.2011. He further argued that defendant has not been able to prove even a single document in support of illegal termination of the plaintiff's services or to prove that the performance of the plaintiff was deteriorating and intentionally did not filed the service records, contract of service and Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 9 of 38 statement of account of the plaintiff.
28 It is further argued by the Ld. Counsel for the plaintiff that defendant did even offer/paid one month salary in lieu of termination of his services and also after 21 months of termination of the plaintiff, he could not get any employment because of stigmatic letter of termination issued by the defendant which caused irreparable damage to his career and reputation and also his family suffered huge financial crises 29 Ld. Counsel for plaintiff has drawn attention of the court to the cross examination of DW1 dated 15.03.2011 in support of his submissions.
30 Ld. Counsel for defendant argued that plaintiff has never been a workman throughout his period of employment with the defendant and his position is that of Dealer Sales Manager. He further argued that terms of services are embodied in the appointment letter of the plaintiff dated 18.03.1996(contract), however, plaintiff denied that any contract was ever received by him. Ld. Counsel for defendant further argued that plaintiff does not have any right to continue in the defendant's employment and defendant has no absolute obligation to employ the plaintiff in perpetuity.
31 Ld. Counsel for defendant further argued that the position of Dealer Support Manager is a managerial position and no training is required especially for a person who worked with the same company for 14 years in various positions.
32 Ld. Counsel for defendant further argued that defendant is a private company covered by the Delhi Shops & Establishments Act and accordingly had a contractual right to terminate the services of the plaintiff under the terms of the contract/letter of Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 10 of 38 appointment dated 18.03.1996.
33 Final arguments advanced by both the Ld. Counsels of the parties. Written submissions also filed. Arguments heard. Record perused.
34 My issuewise findings are as under:
Issue no.1) Whether the termination of the plaintiff's services was illegal or unwarranted?
35 Services of plaintiff have been terminated by letter of termination dated 3rd December 2009, Ex. PW 1/9 and the reason is stated to be that his performance had been deteriorating for quite some time. His performance had been reviewed again and in spite of providing regular developmental feedback/input, no improvement had been observed in his performance and hence his contract of service was terminated.
36 Plaintiff has submitted that he is covered within the definition of workman as provided under Section 2(s) of Industrial Disputes Act, 1947 and there was no subordinate staff whatsoever working under the plaintiff and there was no element of management or supervision in nature of duties of plaintiff as Dealer Support Manager. Plaintiff has submitted that act of the defendant is contrary to the provisions and principles of Industrial Disputes Act as prior to removal/ termination, domestic enquiry is mandatory to ascertain the allegations leveled in the memo.
37 Defendant has submitted that plaintiff has never been a workman throughout his period of employment with the defendant and his position is that of Dealer Sales Manager. He further argued that terms of services are embodied in the appointment letter of the plaintiff dated 18.03.1996(contract).
Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 11 of 3838 No issue had been framed by Ld. Predecessor court as to whether the plaintiff was a workman under the provisions of Industrial Disputes Act or not and at no stage, either of the parties prayed for framing an additional issue for the same. Defendant has relied on certain judgments to support that plaintiff was a workman, however, in view of observations made herein, the same judgments are not been taken consideration. Accordingly, this court does not deem it necessary to give a finding on the same.
39 The court shall confine in giving its findings on this issue that whether the termination of the plaintiff's services was illegal or unwarranted and in determining the same, the court shall determine whether the contents of the letter of termination dated 3rd December, 2009 are stigmatic and therefore violative of principles of natural justice as prior to removal/termination of plaintiff, no domestic enquiry was conducted by the defendant prior to issuing letter of termination dated 3rd December, 2009 which is alleged to be stigmatic.
40 Plaintiff has submitted that his performance, ever since joining the service on 20.01.1996 was always good to excellent for 14 years of his service. Plaintiff has relied on Ex. PW1/4 i.e. Salary structure FY 2008 to 2009 and Ex. PW1/5 i.e. Salary structure FY 2006 to 2007, where his overall grading has been stated to be good and satisfactory respectively.
41 Defendant has admitted that his performance had been satisfactory. However performance of the plaintiff in the recent past was stated to have started deteriorating and on many occasions plaintiff was repeatedly instructed orally by Senior Officials of the defendant to improve his performance, but plaintiff did not pay any heed to such instructions. It is further submitted by the defendant that plaintiff had Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 12 of 38 been in service for 14 years, all the possible support and cooperation was extended to him so as to enable him to mend his ways and improve his workings. However, he failed to remedy the situation despite best efforts by the defendant.
42 Defendant has submitted that services of the plaintiff were terminated due to his poor and deteriorating performance and in view of the same, the plaintiff has no right, contractual, ethical or otherwise to remain in the service of the defendant and hence his termination is fully lawful and authorised. Defendant has relied on M/s Oswal Pressure Die Casting Industry Vs Presiding Officer & Anr. AIR 1998 SC 1431 and Management Hindu Educational Society Shree Kurukshetra & Anr. Vs Govt. of NCT of Delhi 158 (2009) DLT 212 to support its averment that it was not open for the court to sit in appeal over the assessment made by the employer in case it was supported by some material and was not mala fide and it is not proper for court to interfere and substitute its satisfaction with the satisfaction of the employee. However, the said cases relate to employment of probationer and do not apply to the plaintiff since plaintiff was not a probationer at the date of termination.
43 Plaintiff has submitted that since 17.02.1999, plaintiff was working as Major Accounts Manager and vide letter dated 28.08.08, the plaintiff was redesignated as Dealer Support Manager in Delhi branch from 01.09.08 which was completely new assignment of the plaintiff, wherein his job was to provide support to its existing dealers. Plaintiff has submitted that defendant always used to sell its products such as photocopier machine, printer through dealers to Govt. Departments and agencies and for the first time defendant tried to venture through the plaintiff to sell its aforesaid products to commercial establishments in Delhi, however no training whatsoever was imparted for this new venture Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 13 of 38 by the defendant to the plaintiff and an impossible task was given by the defendant to the plaintiff for finding three new dealers for selling its products within six months. Defendant has categorically refuted that the redesignation of plaintiff in September 2008 as Dealer Support Manager was altogether a new task/ assignment. Defendant has submitted that plaintiff had already worked as Major Account Manager during February 1999 to August 2008 and had got sufficient experience for handling the new job description/ profile as Dealer Support Manager and no training is required especially for a person who worked with the same company for 14 years in various positions.
44 Plaintiff has filed Salary Structures (hereinafter referred to as SS) for various years which have a column of Overall Grading. In SS for year 20062007, Ex. PW1/5, effective from April 1, 2006, Overall Grading of plaintiff is stated to be satisfactory and his salary was enhanced. . In SS for year 20082009, Ex. PW1/4, effective from April 1, 2008, Overall Grading of plaintiff is stated to be good and his salary was enhanced.
45 A perusal of Mark A, i.e. letter dated August 28, 2008, reveals that plaintiff on being appointed as Dealer Support Manager with effect from September 1, 2008 was directed to report to one Pankaj Sharma, Operations Manager. In SS for year 20092010, Ex. PW1/6, effective from April 1, 2009, Overall Grading of plaintiff reads as 'Needs Improvement" although his salary was again revised and enhanced. Plaintiff has submitted that only six months had elapsed while he was working as Dealer Support Manager from September 2008 to March 2009. Plaintiff in his plaint and affidavit of evidence has submitted that from 11.11.09, Mr. Sukhdev, Location Head of the defendant started verbally threatening the plaintiff to tender his resignation or else he would be terminated from service without assigning any reasons and he further Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 14 of 38 asked the plaintiff to not to interact with the business dealers and customers and to sit in the office without any work. Mr. Sukhdev also verbally communicated to the business dealers to not to interact with the plaintiff. However, plaintiff has not stated as to since which date the plaintiff was working under Mr. Sukhdev. Plaintiff in his cross examination on 24.01.2011 has stated that Mr. Sukhdev Singh was his location head, manager operation and has also submitted that he submitted his action plan to him in second half of 2009.
46 However Mr. Sukhdev, in his crossexamination on 15.03.2011, has submitted that he joined the defendant as Operations Manager in April, 2009. It is therefore established that overall grading of performance of the plaintiff from 1st September 2008 to March 2009 was not reported by Mr. Sukhdev but by the prior Manager Operation, i.e. Pankaj Sharma. Mr. Sukhdev in his crossexamination on 15.03.2011 has also stated that Pankaj Sharma was operation manager before April, 2009 and it was specifically reported by said Pankaj Sharma that overall performance of the plaintiff needed improvement. Assessment about the plaintiff cannot be attributed to be at the dictates of Mr. Sukhdev.
47 Plaintiff has submitted that from 11.11.09, Sukhdev started verbally threatening the plaintiff to tender his resignation or else he would be terminated from service without assigning any reasons. However, no averments have been made by the plaintiff with respect to being threatened by said Sukhdev from April 2009 to 11.11.2009.
48 Plaintiff has referred to crossexamination of Sukhdev Singh conducted on 15.03.2011 wherein he has stated as:
"During my working as Operations Manager of the defendant between April 2009 to December 2009, nearly 34 employees working under me were terminated/resigned. It is correct that Praveen Sinha, DSM, Arindam Mandal, Major Account Manager and Basu Bhattacharya, Service Manager, all resigned within April 2009 to December, 2009.........It is correct Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 15 of 38 that I removed a dealer Hindustan Electronics, Meerut, U.P. assigned to the plaintiff and reassigned the said dealer to Mr. Piyush, DSM, Dehradoon. It is wrong to suggest that I malafidely removed the said dealer from the plaintiff because his performance was very good so that the performance appraisals of the plaintiff nosedive. It is wrong to suggest that I did not have the Managerial Skills to deal with my employees and extract performance from them and the said employees were forced to resign by me or turned out by the defendant for my lack of managerial skill."
49 In my considered opinion, the resignation of three persons of the defendant during April 2009 to December, 2009 under tenure of Sukhdev does not cast aspersions on his Managerial Skill in absence of knowing the total number of employees working under him. Further the plaintiff has himself submitted that at that time, there was phase of economic recession and in such phases companies do resort to downsizing the number of employees at times by offering incentives under VRS and even otherwise in today's market driven economy where there is cut throat competition, employees in private sector switch over from one company to another on getting better job prospects or benefits. Thus resignation by three employees from April 2009 to December, 2009 does not help the case of the plaintiff. Similarly, in my considered opinion, the removal of one dealer from the plaintiff cannot lead to nosediving his performance if the same had otherwise been very good.
50 Defendant has submitted that performance of the plaintiff had not been satisfactory against the assigned targets in the first half and in the second half of the financial year 2009 (for short H109 and H209 respectively). Defendant has averred that due to plaintiff's low performance in the last half yearly appraisals, he was allotted a rather soft unit target for H109 but his revenue achievement was even worse at 48% of the expected targets. Moreover, his achievement in colour MFP and Printers was nil. Defendant has categorically refuted that the re designation of plaintiff in September 2008 as Dealer Support Manager was altogether a new task/ assignment. Defendant has submitted that plaintiff Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 16 of 38 had already worked as Major Account Manager during February 1999 to August 2008 and had got sufficient experience for handling the new job description/ profile as Dealer Support Manager.
51 Plaintiff in his crossexamination on 24.01.2011 has stated that as Major Accounts Manager, his work profile was to deal with sales in major accounts and products and accounts means dealing with major clients. He has also stated that as a Dealer Support Manager, his work was to deal with dealers in supporting sales and he used to deal with both government and private clients. He has also stated that in the assigned target in first half of 2009 he was to develop business in commercial sector and develop new dealers. In commercial sector, he had to deal with private customers and not government customers.
52 Plaintiff in his reply to the memo dated 25.11.2009, Ex.PW1/7 has written that his performance is upto mark i.e. 70% but in the same reply he has submitted that he has not been allocated any old dealer and dealer allotted to him has been allotted the account which has no business for the last five years which indicates no scope or very poor probability of business in these accounts in the recession period. Plaintiff has also mentioned in the plaint that defendant always used to sell its products such as photocopier machine, printer through deals to Govt. Departments and agencies and for the first time defendant tried to venture through the plaintiff to sell its aforesaid products to commercial establishments in Delhi, however no training whatsoever was imparted for this new venture by the defendant to the plaintiff and an impossible task was given by the defendant to the plaintiff for finding three new dealers for selling its products within six months. The defendant on the other hand has submitted that it has worldwide operations through 311 subsidiaries and employing more than 1, 08,477/ employees across the globe. Defendant has specifically denied that for the first time defendant tried to venture through the plaintiff to sell its aforesaid products to Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 17 of 38 commercial establishments in Delhi or that an impossible task was given by the defendant to the plaintiff for finding three new dealers for selling its products within six months. Defendant has also given the names of few of commercial establishments in Delhi which are its existing customers namely IBM, SAFEXPRESS, UNITECH, SIEMENS, Computer Science Corporation, Amarchand Mangaldas, Remfry and Sagar, Vatika, Carnation Auto, HSBC, Canara Bank, Oriental Bank of Commerce, Mitsubishi, Motherson etc. 53 Plaintiff has argued that defendant has not given the details as to since when been these establishments customers of defendant. Although the WS does not mention the same, Sukhdev Singh in Para 6 of his affidavit of evidence has deposed that they were customers of defendant in 2009. He has not been crossexamined with respect to the said deposition. If it be deemed that statement of Sukhdev Singh is correct, then it falsifies the submission of the plaintiff that for the first time defendant tried to venture through the plaintiff to sell its aforesaid products to commercial establishments in Delhi as the list of customers mentioned above are well known corporate entities. If the statement of Sukhdev Singh is taken to be incorrect and that of plaintiff is taken to be correct that for the first time defendant tried to venture through the plaintiff to sell its aforesaid products to commercial establishments in Delhi, then looking at the mentioned names of few of the customers in the written statement filed on 30.08.2010 just 6 months after the termination of the plaintiff, the claim of the plaintiff is falsified that he was given an impossible task of finding three new dealers for selling its products within six months rather it establishes that there was a lot of scope for selling products of defendant to commercial establishments in Delhi and if the defendant was not able to achieve the given targets, it could be attributed only to deficiency in his performance by perceiving the task assigned to him to be impossible and not that the task assigned to him was impossible.
Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 18 of 3854 Plaintiff has also submitted that no training whatsoever was imparted for this new venture by the defendant to the plaintiff. A perusal of reply dated 27.11.2009 Ex.PW1/8 to the memo dated 25.11.2009 Ex.PW1/7, legal notice dated 13.01.2010, Mark B, sent by plaintiff to defendant and legal notice dated 11.06.2010 sent by plaintiff to defendant reveals that plaintiff has not stated even for once that he was not imparted training by the defendant for the new venture. The plaintiff has not filed any document on record to support that he had ever asked the defendant to provide some training as his job profile had changed.
55 Defendant has submitted that plaintiff was constantly suggested to prepare action plan to achieve the target in H209 in which he was lagging behind. In the memo dated 25th November, 2009, Ex PW1/2 written by Sukhdev Singh to Plaintiff, it is written as "We had detailed review of your activities and suggested you to prepare action plan to achieve H2 task. But you have not prepared proper action plan and as discussed you are also not willing to make the required corrections in your approach to business." Plaintiff, in his reply dated 27th November 2009, wrote back that plaintiff had already given action plan to achieve H2 task to him for perusal and value addition but no suggestion/value addition had been communicated to him.
56 It is a settled principle that plaintiff has to stand on his own feet to prove his case. Plaintiff has not filed copy of his action plan with the plaint in support of this averment in the letter dated 27th November and to belie the claim of the defendant that plaintiff had not made the required corrections in his approach to business. Plaintiff in his crossexamination has stated as:
"I submitted action plan drafted by me in second half of 2009 to Mr. Sukhdev Singh, who was our location Head, Manager Operation of the defendant. I do not remember the contents of the said Action Plan. I Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 19 of 38 submitted the said Action Plan through EMail or whenever required through hard copy. I do not have any print out of the said Action Plan."
57 A reading of these statements shows that plaintiff could have filed a copy of the Action Plan by retrieving a copy from his mail account if he had any. Plaintiff could have given a notice to the defendant under Order 12 Rule 8 to file a copy of the action plan since allegedly he had submitted the same to the defendant. Accordingly, plaintiff has failed to prove that he had prepared the Action Plan.
58 Plaintiff has submitted that on 25.11.09, Mr. Sukhdev Singh with malafide intention issued false "Inter Office Memo" accusing the plaintiff of non performance and threatening him for corrective actions up to and including termination. The plaintiff replied the said memo vide its reply dated 27.11.09, clearly mentioning therein that accusation of the non performance are false and that he is not being allowed to work since 11.11.09 by the said Mr. Sukhdev Singh.
59 Plaintiff has submitted that thereafter defendant vide its letter of termination dated 03.12.09 terminated the contract service of the plaintiff without any rules, regulations, legal procedure prescribed and due process of law. Plaintiff has submitted in Para 15 of the plaint that service can be terminated only of an employee who is on probation and the act of the defendant in terminating the service of the plaintiff is punitive simpliciter keeping in view the length of his service with the defendant. Plaintiff has also submitted that nature of the work of the plaintiff with defendant was perpetual and not on contract basis for a particular project.
60 Defendant has submitted that plaintiff was appointed by the defendant vide appointment letter dated 18.03.1996. At all times, he received full cooperation from the defendant and in the initial years.
Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 20 of 38Defendant has refuted that service can be terminated only of an employee on probation. Defendant has denied that the termination of the plaintiff is punitive simpliciter and has submitted that termination of the plaintiff is valid and authorised by the service condition. Defendant submitted that the Plaintiff has concealed the terms and conditions of his service contract.
61 Defendant had moved an application under Order 11 rule 14 CPC for directing the plaintiff to produce original letter/ offer of appointment dated 18.03.1996 at the stage when the plaintiff evidence had already been closed and witness of defendant had also been discharged after recording his evidence and this court did not allow the application of the defendant at such a late stage. Plaintiff has all along the proceedings denied the providing of any copy either original or Photostat or certified of the appointment letter by the defendant to the plaintiff. Plaintiff has submitted that he was appointed and employed by the defendant on 20th January 1996 but has not made a mention of date of letter of appointment and has also not placed on record any copy of the same. But in paragraph 10 of the plaint has averred that termination of his services is illegal and in complete disregard to the terms and conditions of his appointment governing the contract of service of plaintiff with the defendant.
62 Defendant argued that the Plaintiff has concealed the terms and conditions of his service contract and under terms of the contract, services of the plaintiff can be terminated by giving one month's notice or one month's salary in lieu of notice along with other dues and payables. Defendant has filed copy of offer of appointment with WS however but since the same was not exhibited it cannot be read in evidence.
63 Plaintiff has filed copy of the legal notice dated 13.01.2010 which was sent by him to the defendant. A reading of the Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 21 of 38 contents of the said notice establishes that plaintiff has a copy or original of the appointment letter as Para 4 of the said notice reads as:
"That in the light of above stated facts; I draw your attention to the contents of the appointment letter issued to my client at the time of joining services with you. It is stated herein that the employment can be terminated by either side by giving three months notice or salary in lieu of such notice. The termination of my client is contrary to the terms and conditions stated in the appointment letter. Further my client was rest assured in the light of clause 7 of the appointment letter that the retirement age shall be 58 years....It is further stated that my client adhered to all terms and conditions of the appointment letter during the tenure of his services with you."
64 In reply dated 28.01.2010, Ex. PW1/12 the defendant had written back that clause 11 of the Appointment letter provides for one month's notice or salary in lieu of such notice and not three months notice.
65 The said reply was not replied by the plaintiff and can be accordingly deemed to be correct, more so in view of the fact that plaintiff despite being in possession of the appointment letter kept on denying about its possession and contents thereof and also did not agree to placing of copy of the same on record by the defendant. In view of the fact that the plaintiff was in possession of the appointment letter but did not file the same and kept on denying being in its possession, adverse inference is drawn against the plaintiff and his services can be deemed to be terminable by either side by giving one month's notice.
66 In Union of India vs. Madho Singh Samant and Anr.
2005 (2) Bom CR 146, wherein the employee was removed on ground of under performance, it was observed as:
"In the instant case the respondent was terminated on the ground of unsatisfactory performance. The termination was not on the ground that he has become surplus in which case the principle of last come first go would be applicable. Considering the judgment in Dr. Mrs. Sumati P. Shere vs Union Of India (Uoi) And Ors., AIR 1989 SC 1431, it cannot be said that there has been violation of principle of first come last go. The Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 22 of 38 respondent was otherwise paid one month's wages in lieu of notice. Therefore, the termination cannot be faulted on that count."
67 Clause 11 of the appointment letter, which has been referred by the plaintiff in his legal notice dated 13.01.2010 sent to the defendant, specifically allows the services to be terminated by one month's(not three months in view of observations made in the preceding paragraph) notice or salary in lieu thereof. Clause 11 does not cast duty on the defendant to terminate the services of the plaintiff on any justifiable reason. Defendant had given Plaintiff a period of more than one year to improve his performance and his services were terminated after one year and 3 months. Despite the noting that his overall performance needed improvement at the end of March 2009, his salary was enhanced and the said observation about his performance needs improvement was given by predecessor of Sukhdev Singh. Plaintiff himself has leveled allegations of being coerced by said Sukhdev Singh to resign else he will be removed on false grounds after 11.11.2009 but plaintiff has not placed any positive evidence on record to establish that his performance had improved from September 2008 or March 2009 or at any time thereafter.
68 Plaintiff has himself admitted that he was awarded a foreign tour for Phuket by the defendant in July 2008 for his outstanding performance which reveals that the defendant company keeps a constant vigil on the performance of its workers and suitably rewards them as per their performance. Plaintiff has himself placed SS of 20092010 on record which reveals that despite his performance needing improvement his salary was enhanced, thus negating the claim of the plaintiff that the defendant was having malafides against him. Plaintiff was removed in December 2009 i.e. after 8 months of intimating him that his performance needs improvement. There is no document on record of threats by Sukhdev Singh on any date prior to the reply dated 27.11.2009 to the Memo dated 25.11.2009 Ex.PW1/7 where such allegations have been Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 23 of 38 leveled against the said Sukhdev Singh by the plaintiff and those threats are also stated to be from 11.11.2009. Thus plaintiff has been unable to establish that his termination was illegal, motivated by malafides.
69 Plaintiff has relied on judgment titled Shri Avineshwar Sawhney vs. J.K. Industries, 152 (2008) DLT 712, wherein Hon'ble High Court of Delhi held that even if terms and conditions of service of appellant provided for his entitlement to serve for a minimum period of five years, his services could be put to an end before the expiry of five years. It was observed as:
"We initiate this discussion page by commenting that we do not agree with the observations of the Ld. Single Judge that in view of findings of Issue No.1, Issue No.2 does not arise. The Ld. Single Judge has accepted that the word "ordinarily" occurring in Clause11 would indicate that in normal situation the security of tenure is to be respected and the tenure can be put to an end prematurely only in extraordinary circumstances. Then, onus is upon the respondent to show that there were justifiable reasons and circumstances for terminating the services of the appellant before the expiry of five years period. Therefore, the issue No.2 would still survive and will have to be considered on merits. This is more so when the plea is taken by the respondent that the services of the appellant were terminated as it had allegedly lost confidence in him and the issue is worded accordingly which revolves on this aspect. Whether this issue is decided properly by the Ld. Single Judge, is the question for consideration."
70 The said observations do not support the case of the plaintiff as this observation has been made while interpreting clause 11 of the Service Agreement of appellant in that matter, which provided that the employer shall not ordinarily terminate the services of the employee (i.e. appellant) during the agreed tenure of five years, but if it becomes necessary to dispense with the services of the employee for any reason other than those mentioned in clause thereof, the employer shall give three months notice or pay in lieu thereof. In view of this clause, the court has observed that onus was upon the respondent to show that there were justifiable reasons and circumstances for terminating the services of the appellant before the expiry of five years period. All the observations made Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 24 of 38 by Hon'ble High Court of Delhi in that matter applies to the facts of that case alone as there was clause of security of tenure of five years in favour of appellant in his Service Agreement. No such corresponding clause has been stated to be there in the Appointment letter of the plaintiff and thus no aid can be drawn by the plaintiff from that case. Thus the onus is on the plaintiff to establish that termination of his services was illegal.
71 In the matter of Shri Satya Narain Garg vs. DCM Ltd.
& Others, RFA No. 556/2002, decided on 5 December, 2011, the appellant had filed an appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) against the impugned judgment dated 26.4.2002 whereby, the suit of the deceased plaintiff for declaration and damages for wrongful termination of services was dismissed. The facts were that as late as 1.5.92 his performance during the period 199192 was reported to be satisfactory and he was also informed that his next appraisal will be due on 1.4.93. It was only after 1.4.93 when the performance of the plaintiff was found not to be satisfactory and he was given a chance to improve his performance but when he failed to improve his performance that the report dated 23.7.93 was given by Departmental Head and signed by Personnel Head on 26.7.93 to the effect that Mr. S.N. Garg's performance has been deteriorating continuously over the last two years in spite of numerous attempts at counseling, in view of this he may be discharged. General Manager (HRD) on the basis of last performance appraisal of the plaintiff done in the last week of July, 1993, again required Senior Manager, Taxation & Finance Department to give the performance of the plaintiff for the month of July August, 1993. Again it was opined that there was no change in the contents or the observations made for the period April to June, 1993. It was also suggested that the plaintiff may be discharged from the services with immediate effect and after reviewing the performance of the plaintiff for sufficient time giving him a chance to improve; the plaintiff was discharged from the services of the Company w.e.f. 22.9.93. In Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 25 of 38 these circumstances Trial Court did not find any illegality in the order Ex.P6 vide which plaintiff was discharged from the services of the company and proceeded to hold that "If there was any illwill or bias against the pltf., the Management would not have given a rise in the salary of the pltf. w.e.f. 1.1.92. Since this increment was based on the satisfactory performance of the pltf. during the year 199192 it shows that Management was judging the performance of the employees on the basis of their work and conduct and not for any extraneous consideration like not vacating the quarter. In these circumstances, I am of the view that there is no illegality in the act of the deft in discharging the pltf. from the services of the deft Co. Hence pltf. is not entitled to any declaration as prayed for." Justice Valmiki Mehta observed that "The Trial Court finally has referred to the performance appraisal reports and the counseling given to the deceased plaintiff to hold that in spite of reviewing the performance, and giving sufficient time to improve, the deceased plaintiff did not improve his performance and, therefore, his services were terminated. The Trial Court has referred to the appraisal report Ex.DW1/4 to show that in spite of notice plaintiff had failed to improve his performance and, therefore, his services were validly terminated." and held that "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."
72 Retirement age as 58 years provided in clause 7 of the Appointment letter does not impose any obligation on the defendant to employ the plaintiff in perpetuity. No job is perpetual in any kind of employment, more so in private sector. If a person underperforms, his services can be terminated.
73 Hon'ble Supreme Court of India in the case of Binny Ltd & Anr. v. V. Sadasivan & Ors. (2005) 6 SCC 657 has held that public policy principles cannot apply to private employment and observed that"
Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 26 of 38"Publicpolicy principles can be applied to employment in public sector undertakings in appropriate cases. But the same principles cannot be applied to private bodies. There are various labour laws which curtail the power of the employer from doing any antilabour activity. Sufficient safeguards are made in the labour law enactments to protect the interests of the employees of the private sector. The service rules and regulations which are applicable to government employees or employees of public sector undertakings stand on a different footing and they cannot be tested on the same touchstone or enforced in the same manner."
74 In all the correspondences sent by the defendant to the plaintiff, defendant has consistently written that the services of the plaintiff were terminated because of his deteriorating performance and lose of focus towards his work and because plaintiff failed to take any remedial action despite having been provided regular feedbacks. Thus the plaintiff has failed to establish that his termination was against the terms and conditions of employment.
75 In Shri Satya Narain Garg vs. DCM Ltd. & Others (Supra), it was observed by Hon'ble High Court of Delhi that:
"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."
76 Ex PW1/11, dated 12 January, 2010, sent by defendant to plaintiff bears the subject as "Your termination from the services of M/s Ricoh India Limited and response to your EMail dated 10th January 2010". On its second page, defendant has replied as:
"The plea of getting a VRS is not maintainable since there was no such scheme in existence at the time of your termination.
Once your services were terminated through our letter dated 3rd December, 2009, all your dues (Full and Final) were duly finalized and sent Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 27 of 38 to the Delhi Branch on 6th January, 2010 with cheque no005450 dated 5th January, 2010.
On 8th January, 2010, you came to the Delhi Branch of the Company for collection of your dues but surprisingly, you declined to receive the same on the plea that you would take the dues with your other claims like Provident Fund and Gratuity. In accordance with your Letter of Appointment dated 18.03.1996 as accepted by you on 19th March, 1996, your one month's basic salary in lieu of the notice period for your termination has been finalized...."
77 Plaintiff has not filed the copy of the Email dated 10 th January, 2010 sent by him to the defendant but the reply to the same has been filed and exhibited by the defendant. A reading of the reply reveals that plaintiff had pleaded for his services to be rather terminated under VRS.
78 The visit by the plaintiff to defendant's Delhi Branch on 8.01.2010 and the other contents are substantiated by the letter dated 8.01.2010, Ex. PW1/10 written by defendant to Plaintiff.
79 In view of the observations made herein, the non filing of the copy of Email sent by plaintiff to defendant on 10.01.2010 and not filing of appointment letter or copy thereof by the plaintiff reveals that the plaintiff has deliberately concealed the material facts from the Court.
80 Plaintiff has averred that from 11.11.09, Mr. Sukhdev, Location Head of the defendant started verbally threatening the plaintiff to tender his resignation or else he would be terminated from service without assigning any reasons and he further asked the plaintiff to not to interact with the business dealers and customers and to sit in the office without any work. Mr. Sukhdev also verbally communicated to the business dealers to not to interact with the plaintiff. Plaintiff in his notice of 13.01.2010, Mark B, had written the facts of 3rd December 2009 as:
"My client was called in H.O. on 3rd December, 2009 through Mr. Sukhdev Singh by Mr. Pradeep Narula and Mr. Sujit Sanyal and was Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 28 of 38 directed to resign unconditionally with immediate effect and was also directed to sign some blank papers along with his resignation. My client, Sh. Naresh Tyagi, was further told that if he resigns with immediate effect adhering to their illegitimate and unjustified demands, he shall be given three month's salary as given to another colleague. Mr. Praveen Sinha and other employees of Ricoh India, whom also were dismissed illegally and if he does not, he shall be terminated before evening and shall also be withheld from any salary and benefits he is entitled to."
81 A perusal of Para viii of Ex PW1/12, i.e. reply dated 28.01.2010 to the legal notice of the plaintiff dated 13.01.2010, reveals that accusations leveled against said Sukhdev Singh are not true as the Para viii of Ex. PW1/12 reads as:
"That once again, with an intention to create mischief, your client vide Email dated 10.01.10, wrote to officials of our client's parent company in carious overseas offices, alleging injustice and harassment. Interestingly none of the facts adverted by your client to the happenings on 3rd December 2009, as set out in your legal notice under reply, find mention in the email dated 10.01.2010."
82 Plaintiff has not filed the copy of the Email 10.01.2010 and accordingly whatever has been written in reply to the said email is deemed to be true.
83 Plaintiff has neither filed the copy of email nor the copy of the appointment letter despite being in its possession to save himself from the consequences of Clause 11 in his appointment letter. In the matter of Chengalvaraya Naidu (Dead) by LRs v. Jagannath (Dead) by LRs and others, AIR 1994 SC 853, Supreme Court has observed that "The Courts of law are meant for imparting justice between the parties. One, who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property grabbers, taxevaders, bankloandodgers and other unscrupulous persons from all walks of life find the courtprocess a convenient lever to retain the illegalgains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of litigation".
Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 29 of 3884 It was also observed that "A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party."
85 In view of the judgment referred herein, the concealment of the documents by the plaintiff, which were in his possession which he has consistently denied to be in his possession, amounts to playing fraud on the court as well as on defendant.
86 Plaintiff has submitted that memo dated 25.11.09 and letter of termination dated 03.12.09 of the defendant is stigmatic and absolutely false. In my considered opinion, the termination of services of an employee for not performing upto mark is not stigmatic and accordingly there was no violation of principles of natural justice by the defendant by not holding a domestic enquiry before terminating the services of the plaintiff.
87 Plaintiff has relied on Shri Muralidharan vs. Management of M/s Circle Freight International (India) P. Ltd., 2007 (003) -LLJ0953DEL. The employee in that matter i.e. the appellant was removed from services as there was controversy with respect to accounting of the cash which had been withdrawn from the company in its Delhi office and vouchers were alleged to have been falsified by the appellant. In the facts of that case it was observed as:
"Bald allegations unsupported by details of accounting or documentation would not further the case of the respondent No.1 or establish misconduct on the part of the petitioner. The industrial adjudicator has held that the petitioner has failed to give explanation to the allegations against him without any credible evidence on this aspect. No matter has been placed before the industrial adjudicator in its evidence by Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 30 of 38 the respondent No.1 which could have established that the petitioner had committed the misconduct."
88 The facts of this case do not help the plaintiff as plaintiff has himself admitted his inability to meet the targets by stating that he was able to achieve 70% of the assigned targets in his reply dated 27.11.2009 to the memo dated 25.11.2009 Ex.PW1/7. He has also stated the reasons for his inability as discussed above. In my considered opinion, the material available on record more so in view of averments of the plaintiff in the plaint as well as in evidence in themselves establish that the submissions with respect to non performance of plaintiff upto mark are not bald averments and has been established in view of observations made in the earlier part of this judgment.
89 In the matter of Shri R. Sengupta vs. May and Baker Ltd and anr, R.F.A. (OS) no. 5 of 1989 decided on 6.02.2009, Hon'ble High Court of Delhi has observed that the question of holding an inquiry and taking steps to terminate the appointment only in pursuance thereof would arise only if some misconduct was imputed and not otherwise. Even though the term "misconduct" is not defined under any legislation governing labour laws in India, the Hon'ble Supreme Court in State of Punjab v. Ram Singh Ex. Constable, AIR 1992 SC 2188, held that misconduct can involve moral turpitude, improper or wrongful behavior, willful in character, doing a forbidden act, or transgression of well established rules of action or code of conduct. The central government has prescribed Model Standing Orders, which provides the following instances to constitute misconduct: (a) willful insubordination or disobedience of any lawful and reasonable order of a superior; (b) theft, fraud or dishonesty of the employers business or property; (c) willful damage or loss to employers goods or property; (d) taking or giving bribes; (e) habitual breach of any law applicable to the industrial establishment; (f) riotous or disorderly behavior during working hours at the industrial Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 31 of 38 establishment; (g) habitual negligence or neglect of work; (h) repetition of any act or omission for which fine may be imposed to a maximum of 2% of the monthly wages; (i) striking work or inciting others to strike work in contravention of the provision of any law; and (j) sexual harassment.
90 A domestic enquiry is mandated if a person is removed from his services for misconduct and instances of misconduct referred hereinbefore reveals that removal on ground of under performance is not removal on ground of misconduct and hence defendant was not required to hold a domestic enquiry before terminating the services of the plaintiff and thus there is no violation of principles of natural justice. This view is supported by the judgment in the matter of K. Palanichamy vs. Canara Bank, (1977) 2 MLJ 474 where it was held:
"This decision clearly establishes the proposition that where the order terminating the services of an employee has been passed in exercise of the contractual right by the employer, the motive which led to the exercise of such a power has to be carefully distinguished from the nature of the order. Even if the reason or occasion for exercise of the power has been set out in the order, that will not go to invalidate actual exercise of the contractual right. In view of the said decision, I have to hold that notwithstanding the reference to the petitioner's unsatisfactory work in the impugned order, it cannot be held to be an order terminating the petitioner's services for misconduct. Only if the order is taken to be an order of termination of services for misconduct, it can be said that the order is vitiated for the violation of the principles of natural justice. As I am of the view that the impugned order is not an order of termination for misconduct, but is only an order made in exercise of the power conferred on the employer under the terms of contract, the order cannot be set aside by this Court. In this view, the writ petition fails and is dismissed. However, there will be no order as to costs."
91 Accordingly, Plaintiff has also failed to prove that defendant vide its letter of termination dated 03.12.09 terminated the contract of service of the plaintiff in violation of principles of natural justice or without any rules, regulations, legal procedure prescribed and Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 32 of 38 due process of law.
92 In view of observations made hereinbefore, issue no. 1 i.e. whether the termination of the plaintiff's services was illegal or unwarranted is decided against the plaintiff.
Issue no. 2 Whether the plaintiff is entitled to recover arrears as claimed in the suit?
93 The plaintiff claimed Rs.1, 03,454/ by way of arrears of salary. During his crossexamination dated 15.03.2011, DW1 stated that he can produce the detailed final statement of account of the plaintiff, which was produced by him before the court and the same was Exb.DW. 1/3 (4) and which showed Rs.1, 16,171 as legal entitlement of the plaintiff on the date of his termination, much more than what was claimed by the plaintiff in the suit. During his crossexamination dated 09.05.2011, DW.1 admitted that Rs.1, 16,171/ is due as arrears of salary of the plaintiff on the date of his termination.
94 Plaintiff has submitted that he had claimed Rs.1, 03,454/ on the basis of his own calculations towards arrears of salary as the records are in possession of Defendant Company and not with him. He also submitted that the figure of Rs.1, 16,171/ is the correct figure. Plaintiff has filed his salary slip for the month of December, 2008, Exb.PW. 1/1 where his net salary payable is calculated as Rs.36, 209/. The same has been transferred to his Savings Bank Account as given in the salary slip.
95 In view of the observations made while deciding Issue No.1, the services of the plaintiff were terminable by one month's notice or by giving salary in lieu of such notice. Defendant has also submitted that in case the plaintiff denies to have signed the contract of Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 33 of 38 employment, the defendant is a private company incorporated under the Companies Act and also registered under the Delhi Shops and Establishment Act 1954. Defendant has further submitted that assuming though not admitting that no contract/appointment letter was issued to the plaintiff, it is submitted that at best the plaintiff's entitlement can be under Section 30 of Delhi Shops and Establishment Act. Section of 30 of the said Act reads as:
"No Employer shall dispense with the services of an employee who has been in his continuous employment for not less than three month without giving at least one month's notice in writing or wages in lieu of such notice provided that such notice shall not be necessary when the service of such employee was dispensed with for misconduct after giving him an opportunity to explain the charge."
96 Accordingly even under Section 30 of Delhi Shops and Establishment Act, the plaintiff is entitled to one month's salary only towards the notice period. Since issue No.1 has been decided against the plaintiff, and the termination of services of plaintiff have been held to be not illegal, the plaintiff is entitled to receive one month's salary in lieu of notice period. Accordingly, the plaintiff is entitled to recover an amount of Rs.79, 962/ after deducting Rs.36, 209/ from Rs.1,16,171/ by way of salary given in lieu of one month's notice from the defendant.
Issue no.3: Whether the plaintiff is entitled to a decree of Rs.10 lacs as damages on account of termination and for loss of reputation and opportunity as claimed?
97 It has been the case of the plaintiff that since 04.12.2009, the plaintiff is unemployed and particularly in view of the stigmatic letter of termination, he is unable to seek any employment whatsoever. The stigmatic letter of termination of the defendant has caused irreparable damage to his career and standing in society and is having a debilitating impact on his career in terms of loss of opportunity and reputation which is being quantified at Rs.10 lacs. The plaintiff has also submitted that he was only 46 years old when his services were terminated wrongfully by the Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 34 of 38 defendant, and in view of his qualifications, fourteen years of length of service with the defendant, his unblemished performance appraisal reports with the defendant, he was looking forward to an active career with the defendant for the next 12 years till his retirement at the age of 58 years. The plaintiff has always been ready and willing to serve the defendant as per his contract of service, however, the defendant has not been allowing the plaintiff to attend office at its said Delhi Branch since 04.12.2009. Plaintiff has accordingly claimed damages of Rs. 10 lakhs in lieu of his termination. Plaintiff also submitted during the course of the arguments that he did not try to find any alternate employment as he had lost all the prospects of getting another job in view of the contents of the termination letter being stigmatic.
98 Defendant has however controverted and submitted that the plaintiff is not entitled to damages as for claiming damages under Section 73 of Contract Act, he was duty bound to take steps towards mitigation of damages by looking for some other employment for him and since he failed to do so, he is not entitled to any damages.
99 Plaintiff has relied on the judgment titled D.C.M. Limited and anr vs. Mahabir Singh Rana, 2010 (114) DRJ 475 to support his claim for damages even in absence of plaintiff trying to find any other job. It was observed that:
"This court is unable to persuade itself to agree with the submission of the counsel for the appellants / management that the respondent / employee were duty bound to mitigate the damages. In this regard, the judgment of a Single Judge of the Bombay High Court in case of K.G. Hiranandani Vs. Bharat Barrel and Drum Mfg. Co. Pvt. Ltd. reported as MANU/MH/0077/1969 : AIR 1969 Bombay 373, followed by a Single Judge of this Court in the case of S.M. Murray Vs. Fenner (India) Ltd. MANUDE/0205/1986 : 1986 (11) DRJ 12 is relevant. After discussing the explanation to Section 73 of the Act, it was noted in the aforesaid judgment that the explanation was not enacted as a subsection or a separate paragraph to Section 73, but only appended as an "Explanation to the substantive rule in the first part of section 73". Hence, no duty, which is actionable, can be cast on a party to claim entitlement to damages by first Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 35 of 38 establishing that he had made efforts to obtain alternative employment to mitigate the damages"
100 In the matter of Kayastha Pathshala Allahabad and Anr vs. Rajendra Prasad and anr, (1989) Suppl. 2 SCC 732, Hon'ble Supreme Court of Indian held that even if the termination is said to be illegal, the plaintiff is obliged to place his services in the open market to mitigate the damages and taking this into account the Hon'ble Supreme Court had awarded minimum damages in the said case.
101 In another matter titled A.N. Shukul vs. Philips India & Ors, CS (OS) 2188 of 2003 & IA No. 4895/06, decided on 7 September, 2009, Hon'ble High Court of Delhi observed that "A suit seeking damages on account of a wrongful termination can be maintained. On merits the Plaintiff has been unable to prove his case. In view of issues 1 and 2 being answered against the Plaintiff, the question of award of damages does not arise. The issues are answered accordingly."
102 In Shri Satya Narain Garg vs. DCM Ltd. & Others (Supra), Hon'ble High Court of Delhi held that:
"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 vs. 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 Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 36 of 38 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., 19404 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 employment of the master for the full term of the contract, subject of course to mitigation of damages by way of seeking alternative employment."
Justice Valmiki Mehta proceeded to observe that:
"A reference to the evidence led on behalf of the deceased plaintiff shows that the following is the only evidence which is led to show efforts made for alternative employment:
"I did not join any service after termination by defdt No.1. I am not doing any job since 22.9.93 as I could not find any job despite my efforts."
9. Surely, these types of selfserving 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."....
Justice Valmiki Mehta while dismissing the appeal held as "Thus the following conclusions emerge:
(i) The services of the plaintiff were terminated as in spite of counselling and notice his performance did not improve.
(ii) In private employment, in fact there need not be any valid reason for termination and where there is no fixed period of employment there can be termination simpliciter. Public law principles do not apply to private employment.
(iii) If there is violation of the terms of employment while terminating employment and thus termination is illegal, the employee is only entitled to reasonable damages by applying the principle of mitigation of damages.Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 37 of 38
The plaintiff, assuming his services were illegally terminated, failed to show steps taken to obtain alternative employment and hence was rightly held disentitled to damages."
103 In his affidavit of evidence, the plaintiff has deposed that he is unemployed and particularly in view of the stigmatic letter of termination, he is unable to seek any employment whatsoever. In his crossexamination, the plaintiff stated that "I am not earning any money after the defendant terminated my service so i could not get a job till date." It is an admitted case of the plaintiff that he did not try to find any other job/employment after his termination. Further there is no averment in the plaint that he tried for any other job but he was considered unfit or he was refused employment on account of stigmatic letter of termination. There is also no material on record to support that plaintiff took any steps to obtain alternative employment or he ever applied anywhere for another job or that his application for any other job was not considered in his favour, if any. In view of the law laid down in the cases discussed hereinbefore more so in Shri Satya Narain Garg vs. DCM Ltd. & Others (Supra), issue no. 3 is decided against the plaintiff and in favour of defendant.
Relief.
104 In view of the observations made above, the suit is partly decreed. The plaintiff is entitled to recover an amount of Rs.79, 962/ after deducting Rs.36, 209/ from Rs.1,16,171/ by way of salary given in lieu of one month's notice from the defendant. Decree sheet be prepared accordingly. No order as to costs. File be consigned to record room after necessary compliance.
Announced in the open court (Dr. Neera Bharihoke)
on 06.02.2012 ADJ1(South District)
All pages signed Saket courts, New Delhi
Naresh Kumar Tyagi Vs Ricoh India Pvt. Ltd. Page 38 of 38