Delhi District Court
Mohd. Rafat Khan vs . Techinfo Solutions Pvt. Ltd. on 10 February, 2012
IN THE COURT OF SHRI. ASHISH AGGARWAL, CIVIL JUDGE1,
SOUTH WEST DISTRICT, DWARKA COURTS, DELHI
CS. No 800/11
Mohd. Rafat Khan vs. Techinfo Solutions Pvt. Ltd.
10.02.2012
ORDER
1. This order shall decide the application under Order 39 rules 1 and 2 read with Section 151 of Code of Civil Procedure filed on behalf of the plaintiff. By the said application, the plaintiff has prayed for interim injunction restraining the defendant and its representatives from using the room/office of the plaintiff in the premises of the defendant during the pendency of the suit. The plaintiff has further prayed for interim injunction directing the defendant to keep the said office/room locked and to deposit the keys in the court. The plaintiff has also prayed for interim injunction restraining the defendant from filling up the post of Sales Head (North Region) during the pendency of the suit.
2. The case of the plaintiff is that he is an employee of the defendant company. According to the plaintiff, he has been serving as Sales Head (North Region). It is averred in the plaint that the terms of employment are governed by letters dated 01.05.2006 and 01.04.2011. It is further pleaded that contrary to the terms of appointment and in an illegal manner, the defendant has been restraining the plaintiff from performing his duties. The defendant has purported to terminate the services of the 1 of 12 plaintiff. This termination has been assailed by the plaintiff through this suit. The plaintiff has, in the suit, stated that since the said termination of services has not been communicated to him and he has only received information thereof, his services cannot be treated to have been terminated and unless terminated as per law, he is entitled to perform his duties as an employee of the company. According to the plaintiff, the defendant has not written any letter to him informing him of termination of his services and that he has gathered from different communications that the defendant has purported to terminate his services on 08.08.2011 and 17.08.2011. According to the plaintiff, the stand of the defendant as to the date of termination of services is itself contradictory. Further, according to the plaintiff, no prior notice has been issued to him for terminating his services. Ld. Counsel for plaintiff has also argued that the letter dated 08.08.2011 which has been filed by the defendant is a false and fabricated document and the said document was never served upon him. Ld. Counsel for plaintiff has also argued that this is not a suit for specific performance of a contract for service since services have not been terminated and employment is therefore deemed to be continuing. It is argued that the contract of employment has not been breached at all and continuous in existence. The reason cited by the defendant in the alleged termination letter dated 08.08.2011 i.e. absence from duty is also stated to be nonexistent and untrue. According to the plaintiff, he was on leave and was not absent from duty.
2 of 12 Further, the plaintiff has stated that prior information of the period of leave with the ground therefor had been given by him to the office. According to the plaintiff, the defendant has been trying to illegally remove him from the employment.
3. Counsel for defendant has opposed the application. It is argued that the plaintiff is indirectly seeking to obtain specific performance of the employment contract which, contrary to the wishes of the employer, is not permissible. Counsel for defendant has submitted that specific performance of private employment contracts, except in case of workmen, is not permitted by law. Reliance is placed on the judgment of Hon'ble Supreme Court in the case of Vaish Degree College vs. Lakshmi Narain (1976) 2 SCC 58. Ld. Counsel for defendant has submitted that the plaintiff had been informed of the termination of his services by letter dated 08.08.2011. The conduct of the plaintiff is stated to be unbecoming of an employee.
4. I have heard submissions advanced by Ld. Counsels for parties. In order to decide the application, the following questions needs to be answered:
A. Whether services of plaintiff have been terminated? B. If so, whether the said termination of employment is valid? C. Whether the interim injunction sought by the plaintiff can be granted?
The aforesaid questions are decided hereinafter.
3 of 12 A. Whether services of plaintiff have been terminated.
5. According to the plaintiff, the defendant is not permitting the plaintiff to discharge his official duties. That the defendant had written letter dated 17.08.2011 to the SHO PS R.K. Puram is not in dispute. In the said letter, the defendant has clearly stated that the services of the plaintiff have been terminated. Copy of the said letter was received by the plaintiff on the same day. The letter dated 18.08.2011 filed on record by the plaintiff also shows that the accounts of the plaintiff were undertaken to be finally settled. The plaintiff has also filed copy of legal notice dated 01.09.2011 issued by the advocate of the defendant whereby it has been stated that the services of the plaintiff have been terminated. The plaintiff has therefore repeatedly been informed of the termination of his services.
6. Even if it is assumed that the contention of the plaintiff is correct that the letter dated 08.08.2011 never reached him, that does not aid the plaintiff since there is adequate material on record to show that the plaintiff was unequivocally informed by the defendant that his services are no longer required. The law does not prescribe any specific form for writing a letter for termination of services. One's employment with a private employer can be terminated by simply informing the employee of this. Information can be given even after terminating the services and there is no requirement of following principles of natural justice or holding any inquiry or giving prior information for terminating the services of a 4 of 12 person in private employment. Even if one has not been informed of the termination of services, it does not imply that the termination has not taken place. Giving information is not a precondition to the termination of contract. The employee may at best claim compensation/damages for the period during which he remains under the impression that he continues to be employed. Therefore the fact that before termination of the services, letter or information was not given to the plaintiff is not relevant and does not imply that services were not terminated.
7. Even if there are two different dates disclosed by the defendant as the date of termination of services, that does not imply that employment is in existence. The date on which services have been terminated may vary. However the fact that services have been terminated has been consistently maintained by the defendant. It is not in dispute that as on today, plaintiff is not under the employment of the defendant and is not treated by the defendant as its employee.
8. Even if there may be some ambiguity in this regard, that has been removed when counsel for defendant appeared before this court and, on the strength of his vakalatnama/power of attorney, stated before the court that the service of the plaintiff has been terminated by the defendant. This also finds mention in the written statement of the defendant, duly supported by affidavit. Nothing more is required. It is clear from the above that the services of the plaintiff have indeed been terminated by the defendant.
5 of 12 B. Whether the said termination of employment is valid.
9. Regarding the validity of termination of employment, the plaintiff has made the following submissions:
a. That the said termination of employment is contrary to the terms of employment embodied in letters dated 01.05.2006 and 01.04.2011. b. That the said termination is contrary to the company policy contained in the "hand book" of the defendant. c. That the reason for termination of service disclosed by the defendant is incorrect.
d. That termination of service was not communicated to the plaintiff. These grounds are examined hereunder.
a. That the said termination of employment is contrary to the terms of employment embodied in letters dated 01.05.2006 and 01.04.2011.
10.According to the plaintiff, the termination of his services is contrary to the letters dated 01.05.2006 and 01.04.2011. The letter dated 01.05.2006 states that termination of service may be done by giving one month's prior notice or one month's salary. This period of notice is enhanced to two months by the letter dated 01.04.2011.
11. In the present case, prior notice has not been given. That does not however imply that the termination of service is invalid. It simply entitles the employee to salary for the notice period. Hence even if it is assumed that it was obligatory upon the defendant to issue prior notice and it is 6 of 12 further assumed that the defendant failed to issue prior notice, that does not entitle the plaintiff to challenge the termination itself. This ground is not tenable.
b. That the said termination is contrary to the company policy contained in the "hand book" of the defendant.
12.According to the plaintiff, the termination of his employment is contrary to the policy of the company contained in its "hand book". The plaintiff has referred to the clause in the "hand book" according to which the company would avoid terminating services and would also not waive the notice period under normal circumstances.
13.The said clauses which find mention in the "hand book" are to be interpreted harmoniously with the other terms of employment. They do not run contrary to the letters of employment whereby the right to terminate the service without giving prior notice has been conferred upon the defendant although upon payment of salary for the said period. Moreover, the said clauses do not provide that the company shall not under any circumstance terminate the services of an employee or that the company would never waive the notice period. The policy is a mere guideline and does not present any inviolable rule having binding force. The interpretation canvassed by the plaintiff is not borne out from the company policy. The said clauses do not preclude the company from terminating the services of an employee without issuing prior notice. This ground urged by the plaintiff is without merit.
7 of 12 c. That the reason for termination of service disclosed by the defendant is incorrect.
14.According to the plaintiff, the defendant has purported to terminate the services of the plaintiff on the ground of the plaintiff being absent from duty although the plaintiff had only proceeded on leave after informing the company and this leave had also been sanctioned.
15.In my opinion, whether to continue with the services of a private employee, not being a workman, is the sole discretion of the employer. The employer need not assign reasons for terminating services. Axiomatically, the sufficiency of reasons or their correctness cannot be examined by the court. The reasons for terminating services cannot be subjected to scrutiny. The court can therefore not embark upon an inquiry into their truthfulness. Therefore this ground is negatived. d. That termination of service was not communicated to the plaintiff.
16.According to the plaintiff, he was not informed of the termination of service. As held above, the termination of services of the plaintiff has been duly informed to the plaintiff. The plaintiff has admitted that he has received letter dated 17.08.2011 addressed by the defendant company to the SHO of the police station wherein it is stated that the services of the plaintiff had been terminated. By letter dated 18.08.2011, the defendant company purported to settle the account of the plaintiff. By legal notice dated 01.09.2011 too, the plaintiff had been informed of the termination of his service. Hence information about termination of service had been 8 of 12 duly communicated to the plaintiff. It is not necessary for the said information to be contained in a direct letter addressed to the plaintiff or in a specific format. Further, as observed above, sending of information is not a precondition to the termination of service. Hence the failure to give information does not impinge upon the validity of termination of service.
17. The plaintiff has also argued that the defendant has been taking inconsistent stands regarding the date of termination of service. This fact is irrelevant. That the services of the plaintiff stand terminated is the consistent stand of the defendant. The precise date of the termination of service is not relevant to decide the validity of termination, although it may have a bearing on the remuneration/compensation that may be given to the plaintiff.
18.All the above contentions of the plaintiff do not bear force. They are rejected. The termination of employment is held to be valid. C. Whether the interim injunction sought by the plaintiff can be granted.
19.In the event of the plaintiff succeeding in the suit, he would be continuing in employment. That his services have already been terminated has already been noted above. That the defendant is not willing to continue with the employment of the plaintiff is clear from the stand of the parties. Hence through the suit the plaintiff is essentially 9 of 12 trying to continue in employment against the consent of the employer. Such an order would inevitably amount to enforcement of the contract for service. I find no merit in the contention of the plaintiff that his suit is merely for declaration that his services have not been terminated and that this is not a suit for enforcement for contract of service. The judgment of Hon'ble Supreme Court in the case of Vaish Degree College vs. Lakshmi Narain (1976) 2 SCC 58 squarely applies to the case. In paragraph no. 18 of the judgment, it has been held as under:
"On a consideration of the authorities mentioned above, it is, therefore, clear that a contract of personal service cannot ordinarily be specifically enforced and a court normally would not give a declaration that the contract subsists and the employee, even after having been removed from service can be deemed to be in service against the will and consent of the employer. This rule, however, is subject to three well recognized exceptions - (i) where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India; (ii) where a worker is sought to be reinstated on being dismissed under the Industrial Law; and (iii) where a statutory body acts in breach or violation of the mandatory provisions of the statute".
The present case does not fall under any of the exceptions prescribed above. In the result, this court cannot enforce the contract. The relief that the plaintiff is seeking is barred by Section 14 of the Specific Relief Act, 1963.
20.It may be noted that there is acrimony between the plaintiff and the employees of the defendant. Consequently, even if the plaintiff is 10 of 12 directed to continue in employment, he would not be able to do any effective work in such a hostile environment. The mutual trust needed between employees is amiss. No purpose would be served by permitting the plaintiff to work in the said company. Even if he is permitted to do so, the company would not assign him any work. This is besides the fact that the reinstatement of the plaintiff cannot be ordered since the termination of his services has been found to be valid.
21.Moreover, the plaintiff has prayed that his room/office in the premises of the defendant may be kept locked and may not be used by the defendant. The said room/office is owned by the defendant. Plaintiff has no right to use the said space. Defendant cannot be restrained from utilizing it for its own purposes. Even if it is assumed that the plaintiff is in employment, he does not thereby acquire any proprietary right in the said space.
22.The position of the plaintiff can also not be kept vacant. The plaintiff has no right of exclusivity to the post. The affairs of the defendant company cannot be left at a standstill for the decision of the suit. Further, there is little prospect of the plaintiff's reinstatement in the company. Therefore the defendant cannot be restrained from filling up the said post.
23.The plaintiff has failed to make out a prima facie case in his favour. Balance of convenience is also not in favour of the plaintiff. The application under Order 39 Rules 1 and 2 read with Section 151 of Code of Civil Procedure, 1908 filed on behalf of the plaintiff is 11 of 12 accordingly dismissed.
24.Needless to state, nothing stated in the above order shall be construed as a conclusive opinion or finding on the merits of the case.
(Ashish Aggarwal) Civil JudgeI/Dwarka Courts Delhi/10.02.2012.
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