Delhi District Court
Sh. Deepak Rautela vs Pearl Global Industries Ltd on 14 December, 2021
IN THE COURT OF SH. AJAY GARG, ADDITIONAL DISTRICT
JUDGE 01, PATIALA HOUSE COURTS, NEW DELHI
DISTRICT, NEW DELHI
CS No. 56806/2016
Sh. Deepak Rautela
S/o Late (Sh.) J.S. Rautela
R/o RZ/B87, Dabri Extension,
New Delhi.
......... Plaintiff
Versus
1. Pearl Global Industries Ltd.
Regd. Office :
A3, Naraina Community Centre,
Industrial Area, Phase II,
New Delhi - 110028
2. Pearls Global Industries Ltd.
Plot no. 51, Sector - 32,
Gurgaon, Haryana.
........ Defendant
Suit presented On : 21.01.2015
Arguments Concluded On : 27.11.2021
Judgment Pronounced On : 14.12.2021
JUDGMENT
1. This is a suit for mandatory injunction as well as for recovery of damages / salary and other dues and perks etc. Brief facts necessary for adjudication of the present suit are as follows :
CS no. 56806/16Deepak Rautela Vs. Pearl Global Industries Ltd & Anr Page no. 1 of 16
(i) The plaintiff was appointed as SAP Consultant by the defendant company vide appointment letter dated 23.12.2011. Defendant no. 1 is the registered address of the defendant company whereas defendant no.2 is the zonal office of the defendant company. Since the defendant's registered office and zonal office of the company is one and the same thing therefore it be construed as the principal defendant only. Plaintiff performed his duties with utmost diligence and upto to the full satisfaction of the defendant company. The defendant company gave various appreciation letters and increment letters to the plaintiff for his hard work as plaintiff never gave any chance for any complaint to the defendant. However, despite that the plaintiff was subjected to harassment, mental torture, financial loss and agony by the defendant for ulterior purpose and motive.
(ii) It is further averred that Mr. Gaurav Puri, the immediate boss of the plaintiff in the defendant company harassed and tortured the plaintiff and used abusive language against him. Plaintiff even complained about the misbehaviour of Mr. Gaurav Puri to the higher officials of the company through email on various dates and also by sending legal notice of demand dated 01.09.2014 but to no avail. Even the said legal notice was not replied by the defendant.
(iii) Rather, the plaintiff was restrained from entering into the office complex on 02.09.2014 without assigning any reason thereof.CS no. 56806/16
Deepak Rautela Vs. Pearl Global Industries Ltd & Anr Page no. 2 of 16 Because of illegal restrain of the plaintiff from entering into the defendant company, till date he is unemployed as neither his services have been legally terminated nor his entire salary, perks and other dues have been paid till date.
(iv) It is further averred that on 20.09.2014, plaintiff received an illegal, invalid, forged, manipulated full and final voucher from the defendant wherein the reason for leaving the office by the plaintiff was shown as "resign" whereas infact the plaintiff never tendered his resignation and that it was on the behest of the defendant he was not allowed into the office to perform his duties. Despite several attempts to resolve the issue the defendant paid no heed compelling the plaintiff to send the legal notice dated 08.12.2014 claiming all dues, salary, perks alongwith compensation of Rs. 3,00,000/ w.e.f. 02.09.2014 onwards with interest @ 24% p.a.
(v) Hence, left with no option, plaintiff filed the instant suit praying for grant of permanent injunction thereby directing the defendant to allow plaintiff to enter into the office and perform his duties. He also prayed for grant of mandatory injunction thereby directing the defendant to reinstate the plaintiff and pay his entire salary, other perks and dues with interest @ 24% p.a. w.e.f. 02.09.2014 alongwith damages.
(vi) It is further prayed that full and final settlement voucher issued by the defendant for sum of Rs.73,640/ is wrongly calculated as CS no. 56806/16 Deepak Rautela Vs. Pearl Global Industries Ltd & Anr Page no. 3 of 16 the legally due and recoverable amount is of Rs.1,06,860/ and a decree for the said amount be passed. Lastly damages to the tune of Rs. 3 lacs has also been claimed with interest.
2. Summons were sent to defendant and written statement was filed wherein rejection of the plaint is prayed under Order VII Rule 11 of CPC on the ground that contract of personal services cannot be enforced in civil Court, plea of cause of action arising out beyond the jurisdiction of this court is raised and rejection of the suit is sought on the ground of non maintainability of issue of damages.
3. It is further averred on merits that it being a private employment, can be terminated by either side without assigning any reason and the full and final voucher for the salary and other perks including one month's notice pay for sum of Rs.71,551/ was issued to the plaintiff whereby he was asked to return the laptop and collect the cheque but instead plaintiff sent an email dated 04.09.2014 informed that he is out station for some work. Rest of the contents of the plaint were denied.
4. Replication was filed to the written statement of defendants averring that the written statement is not supported with any legal and valid affidavit of the defendant as per the requirement of the law ; the services of the plaintiff is governed with relevant provisions of Company Act as well as the I.D. Act. The contents of the written statement was CS no. 56806/16 Deepak Rautela Vs. Pearl Global Industries Ltd & Anr Page no. 4 of 16 denied in toto and averments made in the plaint were reiterated and reaffirmed.
5. From the pleadings, following issues were framed vide order dated 03.02.2016 :
1. Whether the suit is not maintainable in the present form?
OPD
2. Whether the suit is not maintainable for want of territorial jurisdiction? OPD
3. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD
4. Whether the plaintiff is entitled for a decree of permanent injunction, as prayed? OPP
5. Whether the plaintiff is entitled for mandatory injunction, as prayed? OPP
6. Whether the plaintiff is entitled for damages / salary and other dues, if so, for what period and at what rate? OPP
7. Relief.
6. In order to substantiate its case, the plaintiff himself stepped in witness box as PW1 and tendered his evidence by way of affidavit Ex. PW1/A. In his affidavit Ex. PW1/A, PW1 has reiterated the facts averred in the plaint and has placed reliance on the following documents:
i. Photocopy of email dated 20.09.2014 and 16.09.2014 Ex.
PW1/1 - Mark A ii. Photocopy of application given by email / post / by hand dated 16.09.2014 to Managing Director of defendant situated at Gurgaon Ex. PW1/2 - Mark B iii. Application given before Delhi government Mediation and Conciliation centre dated 29.09.2014 Ex. PW1/3 - Mark C iv. Photocopy of appointment letter dated 29.12.2011 Ex.
PW1/4 - Mark D CS no. 56806/16 Deepak Rautela Vs. Pearl Global Industries Ltd & Anr Page no. 5 of 16 v. Photocopy of salary structure Ex. PW1/5 - Mark E vi. Photocopy of legal notice dated 01.09.2014 Ex. PW1/6 -
Mark F vii. Photocopy of increment letter dated 08.8.2013 Ex. PW1/7 -
Mark G viii. Photocopy of salary slip dated October 2013 Ex. PW1/8 -
Mark H ix. Photocopy of increment letter dated 03.10.2012 Ex. PW1/9
- Mark I x. Photocopy of revise salary structure dated 01.07.2012 Ex.
PW1/10 - Mark J xi. Photocopy of email dated 30.07.2014 Ex. PW1/11 - Mark K xii. Photocopy of email to Vinod Vaish and Pulkit Seth dated 05.08.2014 Ex. PW1/12 - Mark L xiii. Photocopy of email to Vinod Vaish and Pulkit Seth dated 25.07.2014 Ex. PW1/13 - Mark M xiv. Photocopy of legal notice dated 08.12.2014 Ex. PW1/14 -
Mark N xv. Photocopy of full and final voucher dated 20.09.2014 Ex/.
PW1/15 - Mark O xvi. Photocopy of attendance register dated 01.09.2014 to 30.09.2014 Ex. PW1/16 - Mark P xvii. Photocopy of inter office memo dated 12.06.2012 Ex PW1/17 - Mark Q
7. This witness was extensively crossexamined by ld counsel for defendant wherein the plaintiff admitted the following documents :
(i) Appointment letter dated 23.12.2011 (Mark D) Ex.
PW1/DX1.
(ii) Email dated 02.09.2014 Ex. PW1/DX2
(iii) Email dated 19.09.2014 Ex. PW1/DX3
8. In defendant Mr. Vinod Vaish, Vice President in HR Department with defendant company stepped in witness box as DW1 and tendered his evidence by way of affidavit Ex. DW1/A, DW1 has placed CS no. 56806/16 Deepak Rautela Vs. Pearl Global Industries Ltd & Anr Page no. 6 of 16 reliance on the following documents:
(i) Appointment letter is admitted document Ex. DW1/1
(ii) Email dated 02.09.2014 Ex. DW1/2
9. This witness was exhaustively crossexamined by ld counsel for plaintiff wherein DW1 admitted the following documents :
(i) Original increment letters dated 03.10.2012 Ex. DW1/P1.
(ii) Original increment letters dated 08.08.2012 Ex. DW1/P2.
(iii) Full and final voucher Ex. DW1/P4
(iv) Reply dated 15.12.2014 sent by counsel for defendant Ex.
DW1/P5
10. The Court has heard Sh. Sachit Sharma, ld counsel for the plaintiff and Sh. Ashok Kumar Chhabra, ld counsel for defendant and has gone through the record with their assistance.
11. Accordingly, my issuewise findings are as under :
ISSUE NOS. 1, 4 and 5 :
1. Whether the suit is not maintainable in the present form? OPD
4. Whether the plaintiff is entitled for a decree of permanent injunction, as prayed? OPP
5. Whether the plaintiff is entitled for mandatory injunction, as prayed? OPP The plaintiff by virtue of present suit has prayed for grant of permanent injunction thereby restraining the defendant from raising any obstruction / restricting the entry of plaintiff into the office premises and CS no. 56806/16 Deepak Rautela Vs. Pearl Global Industries Ltd & Anr Page no. 7 of 16 to discharge his duty without any harm / injury to the plaintiff. He also sought mandatory injunction thereby seeking direction to the defendant to reinstate the plaintiff and to pay back wages alongwith benefits.
12. Per contra, ld counsel for defendant stated that the present suit is not maintainable in the present form and relief of injunction qua specific performance of private contract could not be granted as it is specifically barred under Section 14 of Specific Relief Act. In support he relied upon judgment titled Satya Narayan Garg Through his LRs Vs. DCM Ltd & Ors. 187 (2012) DLT 25 wherein, in para no. 11 it was held as under :
11. Thus the following conclusions emerge:
.......
(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 simplicitor. 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.
13. He also relied upon judgment titled Naresh Kumar Vs. Hiroshi Maniwa & Ors 224 (2015) Delhi Law Times 583 wherein it was held as under :
2. A reading of the aforesaid order shows that employment of the plaintiff was a private employment and was not a public employment which is protected like an employment with a State or an arm of a State as per Article 12 of the Constitution of India. The employment letter of the plaintiff by the defendant no.7/employer dated 15.10.2007 contains Clause 17(a) entitling termination of the CS no. 56806/16 Deepak Rautela Vs. Pearl Global Industries Ltd & Anr Page no. 8 of 16 employment of the plaintiff by a notice period of three months or salary of three months.
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.
14. Submissions heard. Record perused. Considered.
15. Admittedly the plaintiff was in private employment of the defendant as per the terms of appointment vide appointment letter Ex. PW1/DX1. The contract between the plaintiff and defendant are governed vide appointment letter dated 23.12.2011 Ex. PW1/DX1 Clause 5 reads as under :
During this appointment, either party may terminate the services without assigning any reason thereof by giving one months' notice or an amount equal to one months' salary in lieu of notice to other party.
16. The contract between the plaintiff and defendant was determinable in nature, meaning thereby the services were terminable by either side without assigning any reason either by giving one month's notice or salary in lieu thereof.
17. In these circumstances, since the contract was determinable in nature, it could not be specifically enforced through civil courts.
Further, even otherwise, it being a private employment, principles of public policies and administrative law does not apply herein as held in case titled Binny Ltd & Anr. Vs. V. Sadasivan & Ors, VI (2005) SLT 692 ; (2005) 6 SCC 657.
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18. Further, in case titled IL&FS Engineering & Construction Company Limited vs. Paschimanchal Vidyut Vitaran Nigam Limited and Ors. in OMP(I) (Comm.) 356/17, OMP(I)(Comm.) 453/17 and IA No. 15303/2017 decided on 08.01.2018 by Hon'ble High Court of Delhi. It was observed that:
16. A conjoint reading of both these sections would reveal an injunction cannot be granted to prevent the breach of contract the performance of which cannot be specifically enforced and such contracts include contracts which are in its very nature determinable. Since the contract in question is determinable, per clause 36 above, where employer has a right to terminate it by giving any reasons though may not be to the liking of the petitioner, the only remedy available to the petitioner under the law would be damages only.
17. I may refer to Rajasthan Breweries Ltd. vs. The Stroh Brewery Company MANU/DE/0860/2000 : 2000 (55) DRJ (DB) which notes: "Subsection (1) of Section 14 of the Specific Relief Act specifies the contracts which cannot be specifically enforced, one of which is a contract which is in its nature determinable. In the present case, it is not necessary to refer to the other clauses of subsection (1) of Section 14, which also may be attracted in the present case since clause (c) clearly applies on the finding read with reasons given in the award itself that the contract by its nature is determinable. This being so granting the relief of restoration of the distributorship even on the finding that the breach was committed by the appellantcorporation is contrary to the mandate in Section 14(1) of the Specific Relief Act and there is no error of law apparent on the fact of the award which is stated to be made according to the law governing such cases. The grant of this relief in the award cannot, therefore, be sustained.
xxx xxx Even in the absence of specific clause authorizing and enabling either party to terminate the agreement in the event of happening of the events specified therein, from the very nature of the agreement, which is private commercial transaction, th same could be CS no. 56806/16 Deepak Rautela Vs. Pearl Global Industries Ltd & Anr Page no. 10 of 16 terminated even without assigning any reason by serving a reasonable notice. At the most, in case ultimately it is found that any termination was bad in law or contrary to the terms of the agreement or of any understanding between the parties or for any other reason, the remedy of the appellants would be to seek compensation for wrongful termination but not a claim for specific performance of the agreements and for that view of the matter learned Single Judge was justified in coming to the conclusion that the appellant had sought for an injunction seeking to specifically enforce the agreement. Such an injunction is statutorily prohibited with respect of a contract, which is determinable in nature. xxx"
19. In these circumstances, since the contract between the parties were determinable in nature, it can be terminated by either side by giving one month's notice or salary in lieu thereof, therefore no injunction for restoration of such a contract can be granted. Accordingly, issues no. 1, 4 and 5 are decided in favour of the defendants and against the plaintiff.
ISSUE NO. 2 :
2. Whether the suit is not maintainable for want of territorial jurisdiction? OPD
20. Onus to prove this issue was upon the defendant. In support of this issue, ld counsel for defendants pleaded that since the contract of employment was given to the plaintiff at Gurgaon, plaintiff was employed at Gurgaon and plaintiff services came to end at Gurgaon, hence, no cause of action arose within the jurisdiction of this Court.
21. However, considering the fact that defendants have their registered office at Delhi, as per Section 20 of CPC, this Court has CS no. 56806/16 Deepak Rautela Vs. Pearl Global Industries Ltd & Anr Page no. 11 of 16 territorial jurisdiction to entertain the present suit. Accordingly, this issue is decided in favour of plaintiff and against the defendant.
ISSUE NO. 3 :
3. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD
22. Neither any evidence nor arguments have been advanced in support of this issue. Even otherwise, appropriate Court fee has been paid for the relief claimed herein. Accordingly, this issue is decided in favour of plaintiff and against the defendant.
ISSUE NO. 6 :
6. Whether the plaintiff is entitled for damages / salary and other dues, if so, for what period and at what rate? OPP
23. Onus to prove this issue was upon the plaintiff. Admittedly, the plaintiff was employed as SAP consultant with the defendant company. As per the terms of appointment, either side can terminate the services without assigning any reason thereof by giving one month's notice or salary in lieu thereof. The plaintiff claims that since neither he resigned from services nor terminated by the defendant, he continue to remain in services without any formal termination and thus entitled to the salary which has not been paid by the defendant till date.
24. Per contra, ld counsel for defendant submits that services of plaintiff was terminated in 2014 itself and it was duly intimated to the CS no. 56806/16 Deepak Rautela Vs. Pearl Global Industries Ltd & Anr Page no. 12 of 16 plaintiff vide email dated 02.09.2014 whereby no dues form was conveyed to the plaintiff. He further submits that intention of the defendant to terminate the services of the plaintiff was very well communicated to the plaintiff which fact can be gathered from the reply sent by the plaintiff to defendant vide email Ex. PW1/DX2 wherein he stated that "since he is out of Delhi for one week for some personal work he will handover the company laptop and its bag upon return".
25. He further submitted that this email of 04.09.2014 was in response to the communication of 2nd September 2014 of the defendant, whereby no dues form was sent to him. Therefore, the termination was well within the knowledge of plaintiff and that's why he assured that upon return he will handover the laptop and its bag. He further submitted that vide email dated 20.09.2014 full and final settlement voucher i.e. Ex. DW1/4 was communicated to the plaintiff and he was asked to return the company assets and collect his cheque of final settlement.
26. In rebuttal, ld counsel for plaintiff submits that since in the full and final settlement dated 20.09.2014 Ex. DW1/4 and 19.09.2014 Ex. PW1/DX3, the reason of leaving was shown as 'resign' though he never tendered his resignation, it cannot be construed that services of plaintiff came to an end. He further submits that he sent the email dated 04.09.2014 to the defendant under the impression that since defendant company was shifting his staff to another branch hence, he was asked to surrender the laptop and laptop bag, and in this regard, he wrote the said email.
CS no. 56806/16Deepak Rautela Vs. Pearl Global Industries Ltd & Anr Page no. 13 of 16
27. Submissions heard. Record perused. Considered.
28. Since, the contract between the parties were determinable in nature, the intention of the defendant regarding termination of services of plaintiff can be gathered through various email communications took place between the parties which are not in dispute.
29. As far as claim of plaintiff, that since he was being shifted to some other branch, he was asked to return the laptop and laptop bag, is concerned, the same cannot be considered being beyond pleadings. This factum has neither been averred in the pleadings nor in the evidence. However, a mere bald suggestion was given to DW1 during his cross examination to which he categorically denied. Thus, in the absence of any pleadings or any positive evidence to this effect, this suggestion is of no use.
30. Even otherwise, the contention of the plaintiff that he was asked to return the laptop and laptop bag on the pretext of the staff being shifted to new branch, does not hold water, as full and final settlement voucher of the plaintiff was duly issued by the defendant and received by the plaintiff, though the reason of leaving is shown as 'resign'. Meaning thereby the intention of defendant to end the services of plaintiff was crystal clear in the minds of plaintiff as well as defendant, upon receipt of full and final settlement vouchers.
31. Merely because reason of leaving shown as 'resign' in the CS no. 56806/16 Deepak Rautela Vs. Pearl Global Industries Ltd & Anr Page no. 14 of 16 full and final settlement voucher Ex. DW1/4, though the defendant failed to show that plaintiff ever tendered his resignation, doesn't amount to his continuation in service. Since the contract was determinable in nature, it can be terminated by either side without assigning any reasons. Issuance of non dues form / full and final settlement voucher sufficiently proves that it stands terminated.
32. In these circumstances, it is held that the services of plaintiff was terminated by the defendant w.e.f. 02.09.2014. The discrepancy in vouchers dated 19.09.2014 vis a vis 20.09.2014 stands clarified during the course of arguments, wherein it is stated to be a calculative error. Even otherwise, since the outstanding balance shown in 20.09.2014 is more than as shown in 19.09.2014, the same is considered as balance outstanding of the plaintiff qua defendant on 02.09.2014. Admittedly the said salary and other dues was never paid to the plaintiff till date by the defendant. Thus, he is held entitled to recover the same from the defendant herein with interest.
33. The plaintiff further averred in the plaint that defendant has wrongly calculated the unpaid salary and balance dues at Rs. 73,640/ though the due and recoverable amount is of Rs.1,06,860/. But plaintiff failed to explain the basis on which the balance due of Rs.1,06,860/ has been claimed. On the other hand, defendant has placed on record the full and final settlement voucher detailing the outstanding as per which an amount Rs. 73640/ is due and payable to the plaintiff.
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34. Further plaintiff also claimed damages but failed to show any tortious liability of defendant. Thus, it being a contractual liability, plaintiff is entitled to damages to the extent of one month's salary in lieu of notice period as assured and predetermined in the contract itself. This amount has already been tendered by defendant vide full and final settlement voucher.
35. Accordingly, this issue is decided in favor of the plaintiff to the extent that he is entitled for recovery of Rs.73,640/ with simple interest @ 8% per annum w.e.f. 02.09.2014 till realization.
RELIEF :
36. Consequent to the findings recorded above, plaintiff is held entitled to recovery of Rs.73,640/ with simple interest @ 8% p.a. w.e.f. 02.09.2014 till realization from the defendant. Costs of the suit is also awarded to the plaintiff. Decree sheet be prepared after deposit of deficient Court fee if any.
File be consigned to record room.
Announced in the open court
On 14.12.2021 (Ajay Garg)
Additional District Judge01,
New Delhi District,
Patiala House Courts,
New Delhi
CS no. 56806/16
Deepak Rautela Vs. Pearl Global Industries Ltd & Anr Page no. 16 of 16