Bangalore District Court
Sreesha Sreenivasan vs Fortis Hospital Limited on 17 December, 2024
1 O.S.2711/2019
KABC010125512019
IN THE COURT OF I ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU (CCH.No.2)
Present: - Sri.B.P. Devamane, LL.M.
I Addl. City Civil & Session Judge,
Bengaluru.
Dated this the 17th day of December 2024.
O.S.No.2711 / 2019
Plaintiff: Smt. Sreesha Sreenivasan,
W/o. Sri.Sooraj Ramdas,
Aged about 39 years,
R/at S1, Sri Anap Nivas, 18th A Main,
HAL 2nd Stage, Indirangar, Bengaluru.
(By Ms.Nitya Kalyani, Adv.)
- VS -
Defendants: 1. Forties Hospitals Limited,
having its corporate office at
154/9, Bannerghatta Road,
Opp. IIM-B, Bengaluru-560 076.
and having its registered office at
Fortis Escorts Heart Institute and
Research Centre, Okhla Road,
New Delhi-110 025.
2. Sri.Malvinder Singh,
Unitech Business Park A,
2 O.S.2711/2019
Netaji Subhash Marg, Block F,
South City I, Sector 41, Gurugram,
Haryana-122 001.
And also at
Sri.Malvinder Singh,
Executive Officer,
Fortis Memorial Research Institute,
Sector-44, Opposite HUDA City Centre,
Gurugram, Haryana-122 002.
3. Sri.Bhavdeep Singh,
Unitech Business Park A,
Netaji Subhash Marg, Block F,
South City I, Sector 41, Gurugram,
Haryana-122 001.
4. Anika Parashar,
United Business Park A,
Netaji Subhash Marg, Block F,
South City I, Sector 41,
Gurugram, Haryana-122 001.
And also at Anika Parashar,
D119, Defence Colony,
New Delhi-110 024.
5. Sabina Tanwar,
Head HR Manager,
Unitech Business Park A,
Netaji Subhash Marg, Block F,
South City, Sector 41,
Gurugram, Haryana-122 001.
6. Fortis La Femme Limited,
Unitech Business Park A,
Netaji Subhash Marg, Block F,
South City I, Sector 41,
Gurugram, Haryana-122 001.
(By Sri.Joseph Anthony, Adv.
D2 - Exparte)
***
3 O.S.2711/2019
Date of Institution of the suit 04.04.2019.
Nature of the Suit (suit for pronote,
Suit for declaration & possession, Declaration.
Suit for injunction, etc.):
Date of the commencement of 07.10.2021.
recording of the Evidence:
Date on which the Judgment was 17.12.2024.
pronounced:
Year/s Month/s Day/s
Total duration:
05 08 13
(B.P.Devamane)
I Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
Plaintiff has filed this suit against the defendants for damages.
2. The brief facts of the plaintiff's case are that, The Plaintiff is a highly educated, experienced and skilled person in the healthcare industry and had built her reputation, over long years, on the strength of her skills, talent and hard- work. The Plaintiff held a stellar academic record and has always been a meritorious student and won several gold medals in recognition of the same. Defendant Nos. 2 is the promoter of 4 O.S.2711/2019 Defendant No.1 Company, Defendant No. 3 is the director of Defendant No.6 Company. Defendant Nos. 4 and 5 are COO of Defendant No. 6 and Head, HR management of Defendant No.1 Company respectively. Defendant No. 6 is a woman's specialty hospital under the wing of the Defendant No.1 Company.
2a) Around 2010, the Plaintiff was living in Germany when she received offer from the 1st Defendant and accordingly appointed as Manager Customer Relations in Bengaluru. The Plaintiff was given offer letter on 08.10.2010 and started her employment with the 1st Defendant Company on 15.11.2010. However, much after she had joined her employment by relocating from Germany to India for the said purpose, the 1 st Defendant Company had her sign on back dated employment contract. The 1st Defendant was in a position to dominate the will of the Plaintiff as it had real and apparent authority over the Plaintiff and the employment contract was consented to by the Plaintiff under the undue influence exerted by the Defendant No.1 Company. Since the Plaintiff had relocated and uprooted her life from one continent to another for the job and had already joined it, she was compelled to accept the terms of her employment contract in her deficient bargaining capacity. At the time of signing, she was expressly asked not to endorse the actual date on her signature by the HR Manager of the 1 st Defendant Company. Clause-5 of the employment contract titled 'Appointment Letter' provided for a unilateral clause whereunder the Company could at any point after probation, terminate the service of its employee with salary in lieu of notice period.
5 O.S.2711/20192b) However, despite the staggering irregularities in signing her one-sided employment contract, given the career- oriented woman that, the Plaintiff is, she decided to dedicate her life to the growth and development of the Defendant Company. The Plaintiff had been one of the key elements in building the reputation of the 1st Defendant in Bengaluru and helping it to scale up to its current size and brand value. The Plaintiff performed her duties diligently and effectively during the course of her employment, as evidenced by her stellar performance reviews and her consistent upward growth in the Company. The plaintiff was often commended by her superiors for her unceasing commitment towards the Company and her valuable contributions were recognized by regular promotions in the Company and increments in her salary. The Plaintiff got continuously recognized for her outstanding performance and got promotions, raises and bonus payouts. Instances of which were as follows:
- Letter dated 18 May 2012 announcing her performance-based incentive for the year 2011-2012, revising her pay scale and appreciating her for her hardwork and commitment.
- Letter dated 22 May 2013 promoting the Plaintiff to 'Senior Manager', announcing her performance-based incentive for the year 2012-2013, revising her pay scale and appreciating her contribution.
- Letter dated 26 May 2014 promoting the Plaintiff to 'Associate General Manager', announcing her performance-based incentive for the year 2013-2014, revising her pay scale and appreciating her contribution.
6 O.S.2711/2019- Letter dated 5 January 2015 promoting the Plaintiff to 'Facility Director, Fortis La Femme', announcing her performance-based incentive for the year 2014-2015, revising her pay scale and appreciating her contribution.
2c) At the time of her termination in 2016, the plaintiff held the position of Facility Director and her responsibilities at this time included overseeing the entire hospital administration, statutory compliances, manpower management and management of outsourced business at various hospital locations in Bengaluru. The plaintiff had a flawless record in performance with the defendant No.1 company and the defendant No.1 company promoted her continually in recognition of the same. Therefore, the plaintiff who jointed as Manager Customer Relations rose up to several levels and was made Facility Director, Fortis La Femme during the tenure of her employment with the defendant No.1 Company.
2d) In the year 2014, when the plaintiff was pregnant, she was advised to go on bed-rest by her physician, but fearing that this would have an adverse effect on her professional prospects, she did not do so. Subsequently, after her physician directly communicated his medical advise to her office and upon being specifically advised to do so by her immediate superior at Fortis, she took 6 days of leave and returned to work promptly. Thereafter, the plaintiff continued to work till the date of her delivery. Despite the fact that, the Plaintiff's child was born premature, the plaintiff opted to return to work immediately after her maternity leave and did not opt to extend the same by using her accumulated paid leaves. In recognition of her continued 7 O.S.2711/2019 and unrelenting dedication, in January 2015, she was entrusted with the responsibility of developing and overseeing upcoming hospital under the aegis of the Defendant Company and was appointed as the Facility Director, Fortis La Femme. The position of Facility Director, Fortis La Femme was demanding position with challenging responsibilities to which the Plaintiff was committed. The Plaintiff personally oversaw the setting up of the hospital, hiring of members in each team, setting up of various internal units, designing of staff uniforms, picking of artwork for hospital walls etc. The Plaintiff also personally traveled to the location of the ambulance vendor to ensure that the ambulance for the hospital was correctly fitted out.
2e) Fortis La Femme was a struggling brand and required significant and consistent involvement by all parties concerned, particularly the managerial staff, in order to reach its revenue targets. On account of the Plaintiff and her hand-picked team, Fortis La Femme began to see steady growth in its revenues and, in fact, in 2015, achieved revenue of approximately Rs.3 Crores, despite being a brand new, single specialty unit. The hospital also won the Best Hospitality Sparkle award in 2015, and was also listed as the second-best Women's hospital in a survey by Time of India. On account of internal re-organization ED within the 1st Defendant Company, the 4th Defendant, Ms. Anika Parashar, came to be appointed as Chief Operating Officer ("COO") for the La Femme vertical and took it upon herself to oversee minutely the work being done by the Plaintiff in the Company. The 4th Defendant began to undermine the work being done by the Plaintiff and her team and 8 O.S.2711/2019 for reasons best known to her, began to work against, rather than with them. This despite the fact that the Plaintiff was reporting to the CEO and not the COO and at no point was explicitly asked to report to the COO. Defendant No.4 appeared to be extremely insecure and threatened by the Plaintiff and used every opportunity to belittle her efforts and put her down.
2f) On or about September 2015, Defendant No.4 urged the Plaintiff to avail of the benefit of 'flexi-timings' that was provided as an option under the internal Company Policy and could be availed of by young mothers. Even though the Plaintiff had earlier decided against this option, Defendant No. 4 insisted the plaintiff to take benefit of it and Defendant No. 4 would personally sanction it stating that, there would be no negative repercussions on her performance reviews. At the insistence of defendant No.4, the Plaintiff availed of this policy. The 'flexi- timings' policy permitted a minor relaxation in working hours at the office, though the Plaintiff, due to her senior position at the Company, continued to work from her home. Even if the Plaintiff came to work an hour after her start time, she worked from home and then in remained office for 9-11 hours. The Plaintiff was so committed to the Defendant No.1 Company's growth that she did not even take optional holidays or take off on festival days. The Defendant No.4 asked the Plaintiff to terminate the services of one Mr. Lennard, who was the Financial Controller of La Femme on the grounds of not having fully owned a budget making exercise. Defendant No. 5 wanted the Plaintiff to terminate the services of one Aabha Kumari, who was the head HR of the La Femme unit, citing no shortcomings. The Plaintiff wanted to give 9 O.S.2711/2019 the said employees a month's notice them to procure alternative employment and this also worked against her in the eyes of to enable the Defendant No.4 and 5.
2g) On 04.04.2016, despite the blemish free professional record of the Plaintiff, the Defendant No.1 Company terminated her employment abruptly, and with immediate effect. Defendant Nos. 4 and 5 along with one Mr. Venu (Head HR of South Region) asked the Plaintiff to attend a meeting at the Chancery Hotel, Bengaluru without any intimation of the agenda of the meeting. The Plaintiff was given a blank sheet of paper and asked to write down her resignation, failing which she would be terminated without benefits. When the Plaintiff asked why she was being terminated, they explained that her position of Facility Director was redundant. However, the very afternoon another person was hired for the very same position. Thereafter the Plaintiff was handed a Termination Letter dated 04.04.2016 terminating her employment with the Defendant No.1 Company with immediate effect without any reason. The termination was highly arbitrary and abuse of power by Defendant No.4 and 5. The Plaintiff was completely shocked by the Defendants' behavior and the abrupt meeting during which she was coerced to resign from the Company and thereafter terminated. This resulted in severe mental anguish and trauma for the Plaintiff who least expected this big blow in her career and in fact it impaired her ability or desire to ever want to return to the corporate world.
10 O.S.2711/20192h) The Plaintiff wrote several emails seeking for explanation for such unceremonious termination of a senior employee, but the Defendant No.1 Company has failed to respond. The Defendant No.1 Company has engaged in unfair labour practice. It is well-established in law that even if the contract provides for termination of employment without reason, the same cannot be an arbitrary, capricious and malicious act by the Company. The Plaintiff even pleaded that she be allowed to serve the notice period in order to procure alternate employment but was refused the least amount of courtesy and terminated overnight, which led to several rumours amongst her former colleagues and friends, family, causing a blot on her reputation.
2i) The defendant No.1 Company failed to process and close the Plaintiff's full and final settlement and failed to give her the variable pay that she was entitled to, forcing the Plaintiff to repeatedly plead with the Defendant No.1 Company's representatives to process the same. The Plaintiff finally received her variable pay, salary slips, full and final settlement calculations and Form-16 only in September 2016, after follow- up. Inspite of plaintiff's request, she was not provided with the provident fund documentations and details of its withdrawal/closure at the time of her termination and only received it on in the month of February 2018. The Defendant No.1 Company has also continued to needlessly harass the Plaintiff by even preventing her from collecting her personal effects from the Fortis Hospitals office at Bannerghatta Road. The Plaintiff has been unashamedly informed that her personal effects, including a ten-gram gold chain, which were placed by 11 O.S.2711/2019 the Plaintiff in a full bureau of three locked drawers, cannot be located. The Plaintiff was prevented from personally going to the location to look for her personal effects and no effort appears to have even been made by the Defendant No.1 Company's staff to locate them.
2j) The Plaintiff heard rumours that, the reason for her termination was cited to be the fact that, she had continued to avail of the 'flexi-timings' policy. The very policy which the Defendant No.4 had forced the Plaintiff to avail. Therefore, it became evident that there was a malicious and vindictive scheme on the part of the Defendant No.1 Company's representatives, particularly, Defendant No.4, in order to needlessly harass and torture the Plaintiff. The Plaintiff had been employed with the Defendant No.1 Company for six years at a managerial position and terminated without notice, for no reason or justifiable cause and without being provided with an opportunity for hearing. The termination was a terrible blow to the Plaintiff and pushed her into deep mental anguish and trauma. The plaintiff was not in a position to get back on her feet for a while and then due to the ill health of her aged parents was unable to follow through on what was clearly an illegal and unjustifiable act on part of the Defendant No.1 Company.
2k) At the time that the Plaintiff was employed with Defendant No.1 Company, she was approached by several head hunters/recruitment specialists who offered her high positions in reputed hospitals, however the Plaintiff turned those offers down due to her loyalty and commitment to the Defendant No.1 12 O.S.2711/2019 Company. At the time of termination of her employment, the Plaintiff was drawing a salary of Rs.26,66,667/-, assuming she had only marginal revisions every year at 5%, she would have earned as follows:
April 2016 - April 2017 26,66,667 April 2017 - April 2018 28,00,000 April 2018 - April 2019 29,40,000 Total 84,06,667
This economic loss due to loss of livelihood can be rounded off to Rs.80 Lakhs and is directly attributable to the misconduct on part of the Defendants. The Employment Contract itself is unconscionable as it provides for termination of employment without cause - furthermore the said contract was one-sided and the Defendant No.1 Company obtained the Plaintiff's signature after she was well into her employment by back dating the agreement. The Plaintiff has suffered severe mental trauma and loss of livelihood on account of the Defendant's acts. The Plaintiff issued legal notice dated 10.09.2018 to the Defendants calling upon them to issue a written apology, modify their contracts. However, the Defendants issued response in blanket denial on 6.10.2018 without substantiating any reason or explanation for the Plaintiff's termination, establishing that it was in fact, without reason or cause. Hence, the plaintiff has filed this suit for the following prayers:
1. Declare that the termination of service of the plaintiff by the defendants was wrongful and contrary to law.13 O.S.2711/2019
2. Direct the defendants to jointly and severally issue an unconditional letter of apology to the plaintiff acknowledging that, her termination was without cause, arbitrary and unfair on their part and further more publish the said apology in local newspapers.
3. Direct the defendants to modify / alter their employment contracts such that it is in accordance with fair labour practices and principles of natural justice.
4. Direct the defendants to jointly and severally pay to the plaintiff a sum of Rs.84,06,667/- as damages along with interest thereon towards the mental trauma and loss of livelihood caused to her by them.
5. Award costs in the above matter.
6. Pass such other orders as this Hon'ble Court deems fit, in the circumstances of the case, in the interest of justice and equity.
3. After service of summons, the defendants appeared through their counsel. Defendant Nos.1 and 6 filed the written statement, which is adopted by defendant Nos.3, 4 & 5 by filing memos. In the written statement, it is contended that, looking to the prayer column of the plaint, prima facie the suit is not maintainable either in law or on facts. Suit is instituted with malafide and vexatious intentions, lacks bonafides and is liable to be dismissed in limine. The Plaintiff being aware of the fact that, matter pertaining to contracts of private employment would not warrant for a cause of action for Declaration or Damages, has rushed to this Court assuming attack as the best form of 14 O.S.2711/2019 defence for making unlawful and unjust enrichments at the cost of the Defendants. There is no cause of action. The suit is barred by law of limitation. The suit is barred by the doctrine of delay and laches and the Plaintiff has approached this Court after an unreasonable delay and without any justifiable explanation.
3a) It is contended that, the defendant No.1 is a reputed healthcare company having super specialty hospitals in the country. Defendant No. 1 is known for imparting human values of trust, ethics and service and quality healthcare in the hospitality sector. Defendant No. 6 is an accredited and a well reputed woman's specialty hospital operating under the wing of Defendant No. 1 company. Defendant No. 3 is the Director of the Defendant No.6 company and Defendant No. 4 is the COO of the Defendant No. 6 company.
3b) In the year 2010, the Plaintiff approached Defendant No.1 seeking for an employment. Pursuant to the Plaintiff's application and subsequent interviews, the Plaintiff was offered employment with the Defendants in the capacity of 'Manager- Customer Relations'. After the said Offer Letter, Appointment Letter dated 15.11.2010 was issued to the Plaintiff which consisted of exhaustive terms and conditions of the employment of the Plaintiff. The appointment letter specifically provided for a termination clause, prescribed in Clause-5 therein i.e., "Termination Clause", which clearly denotes that, the employment of Plaintiff is liable to be terminated upon giving 3 months' notice by either parties and the Defendants could 15 O.S.2711/2019 terminate the employment by making payment in lieu of notice. The plaintiff was employed with the defendants for a period from 2010 to 2016. In January 2015, the Plaintiff was offered the position of 'Facility Director at the Defendant No. 6 company. During the period of employment, the Plaintiff was always at the receiving end of benefits of the employment contract/Appointment Letter. The Plaintiff misused these benefits that were provided to her, thereby creating unjust enrichments in her favour and at the cost of the Defendants. The Plaintiff during the period of her employment, was highly irregular at work which was severely affecting the Defendants. The Plaintiff during her tenure failed to discharge the obligations entrusted upon her, thereby, leaving the defendants unsatisfied with the overall conduct and character of the Plaintiff. Plaintiff failed to fill in key positions for new hospital, which needed traction, thereby leading to severe medical non-compliances. The Plaintiff failed to attend schedule meetings at early hours of the day and arrived to work only as late as 11 a.m. in the morning, despite being well aware of the fact that she held a highly responsible post with the Defendants. On several occasions, the employees of the Defendants were shocked to find the Plaintiff missing from work until mid-morning hours of the day. The Plaintiff repeatedly misused the policies / benefits meted out to her by the defendants, such as, the 'flexi timings' policy despite the Plaintiff having well crossed the maternity leave stage. The staff of the Defendant hospital complained of the lack of availability of the Plaintiff, her failure to respond to important E-mails as well as regarding her mismanagement in the capacity of a leader at the Defendant No.6 unit. In pursuance of non-performance of the 16 O.S.2711/2019 Plaintiff's unit, the Plaintiff's candidature was thus offered to other departments was rejected by all other units / departments of the company.
3c) Under these circumstances, in the year 2016, the employment of the Plaintiff was terminated as per the agreed Termination Clause, stipulated in the Appointment Letter. The net payable salary as on the date of termination of the including payment in lieu of notice was as per Clause-5 of the Appointment Letter amounted to Rs.12,55,546/-. In addition to the same, gratuity amounts to Rs.1,94,968. Therefore, total salary including gratuity amounts to Rs.14,50,514/-. Further, an amount of Rs.1,75,565/- towards statutory deductions including Provident Fund, Tax etc., is required to be deducted from the gross amount of Rs.14,50,514/-. As such, the total amount payable stood reduced to Rs. 12,74,949/-. Pursuant to the Plaintiff's termination, the amount payable to the Plaintiff by the Defendants is Rs.9,45,850/- was disbursed to the Plaintiff during April 2016, an amount of Rs. 3,00,000/- during June 2016 and balance of Rs.29,099/- was not cleared on account of non- encashment by the Plaintiff was finally cleared off in May 2017. The Plaintiff has received total amount to Rs.12,74,949/- pursuant to her termination from the Defendants. The said amount has been accepted by the Plaintiff without any demur or reservations.
3d) After lapse of more than 2 ½ years, the plaintiff issued legal notice on 10.09.2018 for issue of a written apology to her, along with written undertaking for modifying the internal 17 O.S.2711/2019 policies of the Defendant No.1 company as well as seeking for a sum of Rs. 2,00,00,000 (Rupees Two Crores only) to be donated to non-government organizations working for the benefit of women and children. The plaintiff issued the said notice despite the fact that the full and final settlement paid to her by the Defendants as payment in lieu of the notice period of termination, was acknowledged by the plaintiff. The defendant vide reply notice dated 06.10.2018 out rightly denied all the allegations and demands cast upon the Defendants by the Plaintiff in the Notice.
3e) As per law, in matters of contractual employment, the parties are admittedly bound by contractual relations and that unless there is a breach thereof, there shall be no cause of action arising thereunder for a relief of damages. The contracts of personal volition and contracts that are determinable in nature cannot be specifically enforced before courts of law. The Defendants by virtue of the Termination Clause prescribed in the Appointment Letter terminated the employment of the Plaintiff, thereby strictly adhering to the terms of the employment itself. The appointment letter is a contract entered between Plaintiff and Defendants. Hence, there could not have been any coercion or victimization of the Plaintiff in as much as the Appointment Letter executed between the Plaintiff and Defendants. The defendants have rightly terminated the employment of the Plaintiff in view of the terms of employment stipulated in the Appointment Letter, which is the governing document between the plaintiff and the defendants. Hence, there is no cause of action to file this suit. Further, the para-wise allegations made in 18 O.S.2711/2019 the plaint are denied by these defendants. It is denied that, rise in the brand value and size of Defendant No.1 is solely attributable to the Plaintiff. The plaintiff failed to discharge her duties in a diligent manner while associated with the Defendant No. 6 unit. The Plaintiff was constantly irregular to work, failed to respond to e-mails and further portrayed a great amount of insubordination to her superiors. The other employees and staff of the defendants constantly complained of such callous attitude displayed by the Plaintiff. The Plaintiff portrayed signs of a great extent of unprofessionalism and failed to discharge her duties while associated with the Defendants. The Plaintiff misused the 'flexi timings' policy despite having crossed the maternity leave stage, even when her child was 2 ½ years of age.
3f) As per law, that contracts of private employment are not similar to contracts of public employment and that in such cases of private employment, there is no scope of applicability of the principles of administrative law or public law. That it is no longer res integrum that, no Court can ordinarily force an employer to retain the services of an employee whom he no longer wishes to employ. The Plaintiff on her own will and motion made request for availing the 'flexi timings' policy. After 2 ½ years of termination of the plaintiff, she issued notice making false and baseless allegations. All other allegations made against the defendants are denied and prayed to dismiss the suit.
19 O.S.2711/20194. Based on the pleadings, Court has framed following issues :-
ISSUES
1. Whether the plaintiff proves that her employment contract with defendants was on coercion or force, without her consent and back dated by misusing her signature as alleged in the plaint ?
2. Whether plaintiff further proves that she was terminated from employment by the defendants was wrongful and contrary to law ?
3. Whether plaintiff further proves that she suffered mental trauma and sustained monitory loss due to the illegal act of the defendants and thereby the defendants are liable to pay damages to the tune of Rs.84,06,667/- as alleged in the plaint ?
4. Whether plaintiff further proves that the employment contract in between her and the defendants is legally permissible to modify as sought for ?
5. Whether defendants proves that the plaintiff was dereliction in her duty and she was misused flexi timing policy as contended in their written statement ?
6. Whether defendants proves that the suit of the plaintiff is barred by law of limitation ?
7. Whether plaintiff is entitled for the declaratory reliefs as sought for ?
8. Whether plaintiff further proves that defendants done glaring mistake to cause mental injury to her and they liable to seek written apology as she sought for ?20 O.S.2711/2019
9. Whether plaintiff is entitled for damages from the defendants ? If so, how much and from whom ?
10. What Order or decree ?
5. In order to prove the case, the plaintiff examined herself as PW.1 and got marked documents at Ex.P.1 to Ex.P.10. The authorised signatories of the defendant No.1 company examined as DW.1. Since, DW.1 was not available for cross examination, Hence, his evidence discarded. Thereafter, defendant company examined by another representative as DW.2 and got marked Ex.D.1 and Ex.D.4.
6. Heard the arguments. Perused the materials on record.
7. Learned advocate for the plaintiff has relied upon the following rulings:
1. MANU/SC/0439/1986 in the case of Central Inland Water Transport Corporate Ltd. & Ors Vs Brojo Nath Ganguly & Anr.
2. MANU/SC/0031/1991 in the case of Delhi Transport Corporation Vs DTC Mazdoor Congress & Ors.
3. MANU/KE/0053/2009 in the case of The Malabar Mar Thoma Syrian Christian Evangelistic Association & Ors Vs Lally Mathew.
4. Judgment dated 27.09.2019 in C.R.P.215/2019 in Intertek India Pvt. Ltd., Vs Priyanka Mohan.21 O.S.2711/2019
8. Learned advocate for the defendants has relied upon the following rulings:
1. 1991 AIR 1525 in the case of Nandganj Sihori Sugar Co. Ltd., RAE Bareli and Another Vs Badri Nath Dixit and others.
2. Judgment dated 05.11.2015 in CS (OS) No.393/2010 in the case of Shri Naresh Kumar Vs Shri Hiroshi Maniwa & others.
3. Judgment dated 23.09.2015 in CS (OS) No.936/2004 in the case of Vinod Pathak Vs American Express Bank Ltd.
4. Judgment dated 01.08.2012 in CS (OS) No.6731997 in the case of LM Khosla Vs Thai Airways International Public Company Limited and another.
5. AIR 1958 SC 12 in the case of SS Shetty Vs Bharat Nidhi Ltd.
6. (2004) 3 SCC 172 in the case of Perlite Liners (P) Ltd., Vs Manorama Sirsi.
7. ILR 1994 KAR 230 in the case of Karnataka Bank Vs T.Gopalakrishna Rao.
8. 2019 SCC OnLine Del 9946 in the case of GEBR Pfeiffer (India) Pvt. Ltd., Vs Pradeep Sharma.
9. SLP (Civil) No.21723/2012 in the case of Tarun Bhargava Vs GE Capital Trans. Financial Ser. Ltd.22 O.S.2711/2019
10. 2012 SCC OnLine Del 1684 in the case of GE Capital Transportation Financial Services Ltd., Vs Shri Tarun Bhargava.
11. 2018 SCC Online Del 10739 in the case of M/s.G4S Security Services (I) Pvt. Ltd., Vs. Dhiraj Negi.
I have gone through the above rulings.
9. My findings on the above issues are as under :-
Issue Nos.1 to 9 : In the Negative,
Issue No.10 : As per final order;
for the following :-
REASONS
10. ISSUE Nos.1 to 4 and 7 to 9: All these issues are interconnected with each other, hence they are taken together for discussion in order to avoid repetition.
11. In this case, on perusal of the pleadings, material and evidence led before the Court, there is no dispute that, the plaintiff was employee in the defendant No.1 hospital and she was given letter of appointment as per Ex.P.2. Defendants do not dispute that, the plaintiff was appointed in their hospital and she was given various positions, payments and increments etc. Plaintiff filed affidavit in lieu of her examination-in-chief reiterating the plaint averments and examined as PW.1 and got marked the documents at Ex.P.1 to Ex.P.10 i.e., letter of appointment, other documents regarding increments and appreciation letters etc. PW.1 in her cross-examination has admitted that, she was 23 O.S.2711/2019 promoted on regular basis after joining the defendant Hospital. PW.1 further admitted that, from the date of appointment till the date of termination, she was given salary, increments and all other payments regularly. The relevant portion of the cross- examination of PW.1 reads as under:
It is true to suggest that from the date of appointment till the date of termination the variable pay, salary and all other payments were paid to me. It is true to suggest that, there was no due from the company in respect of all financial dues from the date of appointment till the date of termination. It is true to suggest that, as per clause 5 of Ex.P.2 three months salary has been paid to me in lieu of termination notice. It is true to suggest that, the employment contract has not been disputed by me during the course of employment.
In this suit, it is not the case of the plaintiff that, she is seeking direction from the Court for reinstatement of her job in the defendant No.1 hospital.
12. As per the case of the plaintiff, while she was working in defendant No.6, defendant No.4 Anika Parashar joined the company. As per the plaintiff, this defendant No.4 Anika Parashar came to be appointed as Chief Operating Officer and it is defendant No.4 began to undermine the work being done by the Plaintiff and her team. Thereafter, this defendant No.4 instructed the plaintiff to report her, but earlier this, plaintiff was reporting to the CEO, when this defendant No.4 asked the plaintiff to report her i.e., defendant No.4, it is alleged by the plaintiff that, defendant No.4 appeared to be extremely insecure and threatened by the Plaintiff and used every opportunity to belittle her efforts and put her down.
24 O.S.2711/201913. On perusal of the pleadings i.e., plaint and deposition of PW.1, it appears that, in the year 2010, this plaintiff joined the defendant No.1 Hospital / company and she was working there without any problem, but on perusal of Para-8 & 9 of the plaint, it is only when this defendant No.4 Anika Parashar joined as COO in defendant No.6, there started dispute between the plaintiff and this defendant No.4. The plaintiff has contended that, she was denied the flexi timings policy, but the defendant No.4 forced the plaintiff to take flexi timings and thereafter, it was alleged that, the plaintiff has misused the flexi timings and she was not attended the office timely etc.
14. Advocate for the plaintiff argued that, the plaintiff was working for the welfare of the defendants hospital and all of a sudden, plaintiff was terminated unceremoniously which cause tremendous, trauma, hence, defendants are liable to pay damages to the plaintiff and defendants are also liable for the prayers sought by the plaintiff.
15. Advocate for the defendants argued that, as per Ex.P.2 letter of appointment, Clause-5 clearly says that, the mode of termination of an employee. Further, he has argued that, in this case, it is not the case of the plaintiff seeking reinstatement etc., only after 2 ½ years of her termination, she joined another company and only to harass the defendant institution has filed this suit with strange prayers, for which, she is not entitled.
25 O.S.2711/201916. In this case, Ex.P.2 is the undisputed letter of appointment dated 15.11.2010. On perusal of Clause-5 of Ex.P.2, which reads as under:
5. You will be on probation for a period of Twelve Months which if deemed necessary may be extended. During the period of probation, either side will be entitled to terminate the employment relationship without assigning any reason, by giving one month's notice in writing or by payment of one month's salary in lieu of such notice to other side. On successful completion of your probation period, you shall be eligible for confirmation in the service of the Company and the same shall be communicated in writing to you. In case you do not receive this written communication, your status shall remain that of a probationer. After confirmation, your employment is liable to be terminated by giving three months notice on either side and the Company could also terminate your service by making payment in lieu of notice. During the notice period given by you, you are required to compulsorily serve the Organization unless the same is specifically relaxed or waived by the Company.
17. On perusal of Clause-5, after confirmation of probation, the employment of the plaintiff can be terminated by issuing 3 months notice or making payment in lieu of the notice period. In this case, there is no dispute regarding payment of notice period and all other dues, for which, the plaintiff was entitled from the defendant Company.
18. Advocate for the defendant has relied upon the ruling reported in (2005) 6 SCC 657 in the case of Binny Ltd., & Anr. Vs. V.Sadasivan & Ors, wherein, the Hon'ble Supreme Court has held that,
7. 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. In case of private employment, the employers are fully justified in taking steps 26 O.S.2711/2019 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. In the present case, in my opinion, since there was no fixed period of employment so far as the deceased plaintiff is concerned, the deceased plaintiff could have been terminated from services even by a simplicitor notice, assuming even if the services of the deceased plaintiff were upto the mark. 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.
Hence, as per the law laid down by the Hon'ble Apex Court in the above said ruling, the 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, the termination of the plaintiff cannot be said as illegal and once the termination is not said as illegal, the plaintiff is not entitled for damages or any other prayers, prayed in this plaint.
19. In the notice issued by the plaintiff to the defendants, she has asked the defendants to donate Rs.2 Crores to NGOs. Such type of prayers sought by the plaintiff is neither contained in the appointment letter nor there is provision for such things. The plaintiff is not entitled to seek such type of prayer against the defendants when the agreement i.e., letter of appointment, do not 27 O.S.2711/2019 contain any clause regarding payment of damages to the plaintiff. Further, as per prayer-2, the plaintiff has prayed to issue an unconditional letter of apology to the plaintiff and also to publish the same in the newspapers etc., is not proper and the plaintiff is not entitled for such prayers.
20. Plaint Prayer-4 is regarding payment of Rs.84,06,667/- as damages along with interest thereon. On perusal of Ex.P.2 letter of appointment, it do not contain any clause regarding damages. In this case, near about 2 ½ years of the termination of the plaintiff, she has issued notice and filed this suit seeking damages and other prayers. The plaintiff has not produced any evidence or she has not made out any case to show that, she is entitled for the damages as claimed. After termination of the plaintiff from the defendants' hospital, she has taken job in other company and she is working there. Further, even if the terminated employee do not get job in other companies, is also not a ground to award damages. Under these circumstances, I answer Issue Nos.1 to 4, 7 to 9 are in the Negative.
21. ISSUE NO.5: The defendants in their written statement contended that, the plaintiff misused the flexi timings policy and the defendants have also contended that, the suit is barred by limitation. DW.2 who is examined on behalf of the defendants' company is not the person, who hired the plaintiff or he is not the person, who was working with the plaintiff in the defendant No.6 company at the time of her termination. The defendants have not produced any evidence or any documents 28 O.S.2711/2019 like plaintiff's attendance register or the defendants have not examined any employee of the company to prove that, the plaintiff was coming to office late or she was irregular in her duties and there was any loss or inconvenience to the employees of the defendants due to this alleged late coming or any other irregularities allegedly committed by the plaintiff. Hence, there is no any evidence before the Court to prove issue No.5. Accordingly, I answer issue No.5 is in the Negative.
22. ISSUE No.6: On 04.04.2016, the plaintiff is terminated from the defendants' company. On 06.10.2018, the plaintiff issued notice as per Ex.P.8 to the defendants i.e., within 3 years from the date of her termination. Hence, there are no grounds to hold that, the suit of the plaintiff is barred by limitation. Accordingly, I answer issue No.6 is in the Negative.
23. ISSUE NO.10: In view of the aforesaid discussions, I proceed to pass the following: -
ORDER The suit of the plaintiff is dismissed with cost.
Draw decree accordingly.
(Dictated to the Stenographer-III, transcription computerised by her, corrected and then pronounced by me in the open court on this the 17th day of December 2024).
(B.P.Devamane) I Addl. City Civil & Sessions Judge, Bengaluru.29 O.S.2711/2019
ANNEXURE WITNESSES EXAMINED ON BEHALF OF PLAINTIFF:
PW.1 : Smt.Sreesha Srinivasan. DOCUMENTS MARKED ON BEHALF OF PLAINTIFF: Ex.P.1 : Offer letter dated 08.10.2010. Ex.P.2 : Letter of appointment. Ex.P.3 : Letter dated 18.05.2012 regarding
performance linked incentive / variable pay - payouts 2011-12.
Ex.P.4 : Termination letter dated 04.04.2016.
Ex.P.5 : Copy of email. Ex.P.6 & 7 : Copy of whats app screen shots. Ex.P.8 : Legal notice. Ex.P.9 : Reply. Ex.P.10 : Certificate.
WITNESSES EXAMINED ON BEHALF OF DEFENDANTS:
DW.1 : Sri.Akashy Aleti.
DW.2 : Sri.Raghavendra KSN.
DOCUMENTS MARKED ON BEHALF OF DEFENDANTS:
Ex.D.1 & 2 : Emails.
Ex.D.3 : Authorisation letter.
Ex.D.4 : Letter dated 04.04.2016.
(B.P.Devamane)
I Addl. City Civil & Sessions Judge,
Bengaluru.