Delhi District Court
Shyam Lal vs Embassy Of Greece on 24 April, 2017
IN THE COURT OF SH. SURINDER S. RATHI: LD. ADDITIONAL DISTRICT
JUDGE03:PATIALA HOUSE COURT:
NEW DELHI DISTRICT
CS No. 57219/16
Shyam Lal
Son of Late Jakhan Ram
Resident of 165, A5A, Janta Flat,
Janak Puri, New Delhi110058. ......Plaintiff
VERSUS
Embassy of Greece
Through The Ambassador
Embassy of Greece
Dr. Radha Krishna Marg,
Chanakyapuri, New Delhi. .....Defendant
Date of Institution : 28.11.2011
Date of Final Arguments : 24.04.2017
Date of decision : 24.04.2017
JUDGMENT
The Case
1. This suit has been filed by plaintiff against defendant Embassy for recovery of Rs. 60.05 lacs as compensation for illegal termination and recovery of terminal benefits, fixing monthly pensions qua the services claimed to have been rendered as a driver from the year 1971 to October, 2005. Plaintiff was allowed to maintain the suit under Order 33 CPC a Pauper in terms of order of Hon'ble High Court CS No. 57219/16 Page 1 of 32 dated 16.08.2012. Suit is contested by the defendant Embassy on a plea that plaintiff served them only on temporary basis from 1971 to 1992 when his services were discharged upon payment of all legal dues.
Appearance
2. I have heard arguments of ld counsel for plaintiff Sh. Amit Kumar and Ld counsel Shri Ramesh Kanthola for defendant and have perused the case file.
Plaintiff's Case
3. Case of the plaintiff as per plaint and the evidence lead is that plaintiff joined the services of defendant, Embassy of Greece in January 1971 as a Driver. His Identity Card is Ex.PW1/1. As per his age he was supposed to retire only on 31.05.2006. Even though he served the defendant diligently and there was no occasion of holding of any disciplinary proceedings against him, to he surprise, his services were terminated abruptly w.e.f 01.10.2005 without any reason or rhyme. He was conveyed oral orders in this regard by Shri Christos Augoust Akis, attachee to the defendant Embassy. Plaintiff assailed this decision by making a representation to Prime Minister of Greece seeking reinstatement and in alternative compensation including pension. However, his request remained unheard.
4. Subsequently he made an application under Section 86 of CPC to Secretary (West), Ministry of External Affairs, Government of India seeking permission to sue the defendant Embassy in the Court of Law. Ex.PW1/6 is a letter issued by Ministry of External Affairs with the defendant MHC on 28.09.2005 CS No. 57219/16 Page 2 of 32 mentioning therein that plaintiff has made a complaint to the Ministry against the Embassy. The letter sought comments of the Embassy on the same. Ex.PW1/7 is a letter issued by Ministry of External Affairs on 20.04.2006 to the President's offer and Domestic Welfare Association intimating that letter of the Association qua the plaintiff is under consideration with defendant Embassy and Ministry of External Affairs. However, no such permission was granted to him. However, he filed Civil Writ Petition before Hon'ble High Court under WP (C) No.10185/2009 and vide order dated 12.07.2010 and 16.09.2010 Ex.PW1/8, directions were issued to Ministry of External Affairs to reconsider the permission request of the plaintiff. Thereafter, permission was accorded on 27.01.2011vide Ex.PW1/9.
5. It is case of the plaintiff that he has assessed the compensation of Rs.40 lacs qua illegal termination as per parity with other employees of the defendant Embassy namely Dinanath Peon, Himanchal, Helper Visa Branch and Vasuhudeva, Social Secretary as they were paid Rs. 40 lacs as terminal benefits. With these pleas recovery of Rs.60.05 lacs has been sought. Defendant's Case
6. Suit of the plaintiff was contested by defendant Embassy with a plea that his services were hired as a Driver in 1971 on temporary basis. His services were dispensed legally in December, 1992 without breach of any applicable Law or Contract. He was paid Rs.60,000/ in the form of fixed deposit receipt Ex.DW1/4 dated 16.12.1992 drawn on Bank of Tokyo in plaintiff's name having maturity value of Rs.85,547/. Plaintiff had executed an acknowledgment dated 15.12.1992 Ex.DW1/2 towards the Gratuity. In the same acknowledgment he has accepted CS No. 57219/16 Page 3 of 32 that now no further claim remains to be paid to him. As such it is case of the defendant that services of plaintiff were dispensed in 1992 after paying him due compensation under due acknowledgement.
7. However, from 1993 onwards plaintiff was hired again by the defendant Embassy after a break for temporary basis. Considering his age he was given easy duties. His further services were dispensed w.e.f 01.10.2005. He was paid Rs.59,010/ as Gratuity apart from additional amount of Rs.31,447/ as interest. Other than above, defendants deposited an amount equivalent to 10% of plaintiff's monthly salary in the Public Provident Fund account maintained with Post Office Lodhi Road for the period 1993 to 2005. The total amount accumulated therein was Rs.1,15,982/ which was withdrawn by the plaintiff.
8. It is pleaded that the suit of the plaintiff is not maintainable in so far as entire arrears of Gratuity and the Provident Funds stood paid to him. There was no occasion for seeking compensation for claimed illegal termination as his services were purely temporary in nature and he was not a permanent employee of the defendant Embassy. He was still served with a notice of termination in terms of "Note Verbale" dated 29.11.1975 issued by Ministry of External Affairs qua services of local staff engaged by Embassy.
9. It is case of the defendant Embassy that by his own admission and even otherwise due to retire in May 2006 itself and as such there cannot be any question of compensation on account of claimed illegal termination.
10. On merits defendant has not denied that services of the plaintiff were initially hired in 1971 but it was claimed that they were on temporary basis. It is CS No. 57219/16 Page 4 of 32 their case that they engaged the services in January 1993 after dispensing his earlier services in December 1992. It is not denied that his services were finally dispensed with w.e.f 01.10.2005. It is denied that services were terminated illegally. Separate replication was filed by the plaintiff wherein pleaded case was reiterated. It is case of the plaintiff that he was made to sign some blank papers at the time of initial appointment and that those documents were manipulated so as to forge and fabricate documents relied by the plaintiff. It is said that he served the defendant Embassy for almost 34 years and was entitled to Rs.35 lacs the highest amount payable to Government servants as gratuity. The specific payments referred to have been paid by the defendant in the Written Statement are not specifically denied however, a bald statement is made that Bank, post office and UTI funds belonged to the plaintiff and no other payment was received.
11. Upon competition of pleadings following issues were identified on 12.01.2016 ISSUES
1. Whether the service of the plaintiff with the defendant was temporary in nature dis entitling him to get the reliefs sought? OPD.
2. Whether plaintiff is entitled to recovery of Rs.40 lacs as compensation for claimed illegal termination of service? OPP.
3. Whether plaintiff is entitled to decree of Rs.20.05 lacs as terminal benefits? OPP.
4. Whether plaintiff is entitled to monthly pension? OPP.
5. Relief.
CS No. 57219/16 Page 5 of 32Additional Issue Whether suit claim of the petition is barred by limitation? OPP.
12. Evidence in this matter was recorded before Ld.L.C in terms of Order 18 Rule 4 CPC and "Protocol for Expeditious Disposal of Cases in Civil Courts"
devised by this Court under Order 18 Rule 4 CPC guided by several judgments of Hon'ble Supreme Court in this regard.
13. In support his case Plaintiff examined himself as PW1. On the other hand defendants have examined DW1 Shri Christos Gkeivelopoulos, attachee to the defendant Embassy apart from examining DW2 Shri Nikhil Bansal, Deputy Manager, Bank of Tokyo and DW3 Shri Sulekh Chand Sharma from Postal Department.
S.No. No. of Exhibits Details of the documents
1 Ex.PW1/1 Identity Card
2 Ex.PW1/2 Copy of appreciation letter dated 30.01.1973
3 Ex.PW1/3 Copy of appreciation letter dated 23.02.1989
4 Ex.PW1/4 Copy of letter dated 20.05.2002
5 Ex.PW1/5 Copy of letter dated 18.06.2004
6 Ex.PW1/6 Copy of letter dated 28.09.2005
7 Ex.PW1/7 Copy of letter dated 20.04.2006
8 Ex.PW1/8 Copy of judgment dated 16.09.2010
14. In his evidence as PW1 plaintiff has deposed on the lines of plaint in his affidavit Ex.PW1/A. In his affidavit in chief he has given the breakup of part of his suit claim. Although this breakup was neither mentioned in the plaint nor in the replication but it was filed on record under directions of Hon'ble High Court to the CS No. 57219/16 Page 6 of 32 interim application filed by the plaintiff. The breakup of Rs.35,11479.04 is as under Salary with increment of left over 8 Months 9250 X 8 =Rs.74000 + increment of 10% of service the salary= Rs.7400/= Rs.81400/ + DA @ 40% = Rs.81400 X 0.4 = Rs.32560/. Total Salary with increment and DA = Rs.81400/ + Rs.32560/= Rs.1,13,960/ Notice Pay One month salary Rs.9250+Rs.925/=Rs.10,175/ and DA @ with increment 40%= Rs.10175 X 0.4= Rs.4070/. Total Notice Pay= Rs.14,245/ Bonus One month pay for 6 Rs.9250 X 6 = Rs.55,500/ years Gratuity 15 days pay per year Rs.9250 X 16.5 = Rs.1,52,625/ limited to 33 years Over Time 100 hours per month Rs.20,40,000/ Weekly Paid Off Restricted to 10 Es.9250 + DA @ 40%= Rs.3700/ Total= months paid leave Rs.12950 X 10 = Rs.1,29,500/ according to govt.
rules Social Security/Retirement To be calculated by the employer Pension/ CPF respondent at par with the other employees of equivalent status.
House Rent Allowance in lieu of Rs.3,20,000/
accommodation
Compensation for mental agony Rs. 50,000/
Compensation for mental torture Rs.50,000/
Compensation for destabilization Rs.50,000/
Interest @ 18% per annum on Rs.535649.4/
total amount
15. In his crossexamination, he has stated that he is educated only upto 2nd and 3rd class. He is not aware of his date of birth but claims that he was born in the year 1942. He deposed that prior to working for Embassy of Greece he CS No. 57219/16 Page 7 of 32 worked for American Embassy for ten years. He denied the suggestion that he left the services of Embassy of Greece in December 1992 and was paid Rs.60,000/ as gratuity. He could not disclose as what was his age in 1992. He denied that he was taken back into temporary service in 1993 and claimed that he had never left the service. He further denied the suggestion that in 2005 defendant paid him Rs.59,010/ as gratuity and Rs.1,15,982/ as Provident Fund. He submitted that he has claimed Rs. 20 lacs as overtime charges while remaining is for gratuity, house rent and conveyance. He accepted that he has not filed any document to show his age even though he has his Aadhar Card and driving licence. He accepted that Ex.DW1/1 as his salary slip. He also accepted his signatures on document Ex.DW1/2 which contains his acknowledgement that he has received Rs.60,000/ as Gratuity and no other money is due to him. He however added that he has only received Rs.30,000/.
16. In his deposition as DW1 Shri Christos Gkeivelopoulos he deposed on the lines of his written statement while his affidavit Ex.DW1/A. In his detailed crossexamination he stated that the defendant Embassy does not have any document to show that as to on what grounds the plaintiff's services were terminated or is reinducted into service in January, 1993. Upon being asked about the grounds and documents qua dispensation of service w.e.f 01.10.2005 he said that plaintiff was taken back to service on compassionate ground on temporary and need based arrangement. As per him the date of age of superannuation of the Driver in Embassy is 60 years as per "Note Verbale" issued by Ministry of Foreign Affairs in India. The witness said did not accept the CS No. 57219/16 Page 8 of 32 plaintiff's plea that plaintiff was supposed to retire on 31.05.2006 on attaining the age of 60 years. The witness at that according to the document accepted by the plaintiff he was born in 1942 in District Bulandshahr, UP and he had reached the age of 60 in the year 2002 itself. Upon being asked as to why plaintiff was allowed to continue the serve between 2002 to October 2005, witness deposed that the plaintiff was hired temporarily for need based services.
17. Now I shall dispose of individual issues framed in this case. Additional Issue Whether suit claim of the plaintiff is barred by limitation?
18. As detailed supra, as per evidence available on record plaintiff was removed from his services on 01.10.2005 whereas the suit in hand was filed on 22.11.2011 after more than six years of accrual of cause of action. This suit seeks recovery of money under the heads terminal benefits apart from compensation for breach of service contract. Both these claims are covered under Article 7 and Article 55 respectively of Schedule attached to Limitation Act, 1963.
Article 7 of Schedule to Limitation Act S. No. Description of suit Period of Time from which period Limitation begins to run Article 7 For wages in the case of Three years When the wages accrue any other person. due. Article 55 of Schedule to Limitation Act S. No. Description of suit Period of Time from which period Limitation begins to run CS No. 57219/16 Page 9 of 32 Article 55 For compensation for the Three years When the contract is breach of any contract, broken or (where there are express or implied not successive breaches) herein specially provided when the breach in for. respect of which the suit is instituted occurs or (where the breach is continuing) when it ceases.
19. However, there is more to what meets the eyes on this issue. In so far as plaintiff was desirous of suing a Embassy of a foreign country, Section 88 of Civil Procedure Code comes into play in filing of suits by an Indian citizen against a foreign embassy.
Section 86 of CPC
86. Suits against foreign Rulers, Ambassadors and Envoys. (1) No foreign State may be sued in any court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a secretary to that government:
Provided that a person may, as a tenant of immovable property, sue without such consent as aforesaid a foreign State from whom he holds or claims to hold the property.
(2) Such consent may be given with respect to a specified suit or to several specified suits or with respect to all suits of any specified class or classes, and may specify, in the case of any suit or class of suits, the court in which the foreign State may be sued, but it shall not be given, unless it appears to the Central Government that the foreign State--CS No. 57219/16 Page 10 of 32
(a) has instituted a suit in the court against the person desiring to sue, it. or
(b) by itself or another, trades within the local limits of the jurisdiction at the court, or
(c) is in possession of immovable property situate within those limits and is to be sued with reference to such property or for money charged thereon, or
(d) has expressly or impliedly waived the privilege accorded to it by this section.
(3) Except with the consent of the Central Government, certified in writing by a secretary to 'a Government, no decree shall be executed against the property of any foreign State.
(4) The preceding provisions of this section shall apply in relation to-- (a) any Ruler of a foreign State; (aa) any Ambassador or Envoy of a foreign State;
(b) any High Commissioner of a Commonwealth country; and
(c) any such member of the staff of the foreign State or the staff or retinue of the Ambassador or Envoy of a foreign State or of the High Commissioner of a Commonwealth country as the Central Government may, by general or special order, specify in his behalf, as they apply in relation to a foreign State. (5) The following persons shall not be arrested under this Code, namely:--
(a) any ruler of a foreign State;
(b) any Ambassador or Envoy of a foreign State;
(c) any High Commissioner of a Commonwealth country;CS No. 57219/16 Page 11 of 32
(d) any such member of the staff of the foreign State or the staff or retinue of the Ruler, Ambassador or Envoy of a foreign State or of the High Commissioner of a Commonwealth country, as the Central Government may, by general or special order, specify in this behalf. (6) Where a request is made to the Central Government for the grant of any consent referred to in subsection (1), the Central Government shall, before refusing to accede to the request in whole or in part, give to the person making the request a reasonable opportunity of being heard.
20. It is case of the plaintiff that as mandated by the above statutory provision plaintiff had applied with Ministry of External Affairs for seeking permission to sue the defendant vide his application. However, when he did not receive any response from the Ministry, vide RTI reply dated 21.07.2008 he was apprised that his matter is under consideration with the Ministry and that Ministry will soon revert back to him. When he still did not receive any response, he filed Civil Writ Petition WP(C) 10185/2009 before Hon'ble High Court of Delhi. Vide orders dated 06.09.2010 Ex.PW1/8 Union of India was directed to reconsider the representation of the petitioner qua grant of compensation. As a consequence thereof vide letter dated 27.01.2011 Ex.PW1/9 Ministry of External Affairs accorded consent under Section 86 CPC to the petitioner to institute legal suit against Embassy of Greece.
21. Since consent under Section 86 was a prerequisite to file a suit against a foreign Embassy, by virtue of Section 15 of Limitation Act 1963, such a period deserves to be excluded while computing the limitation.
CS No. 57219/16 Page 12 of 32Section 15 of Limitation Act
15. Exclusion of time in certain other cases.--
(1) In computing the period of limitation of any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded. (2) In computing the period of limitation for any suit of which notice has been given, or for which the previous consent or sanction of the Government or any other authority is required, in accordance with the requirements of any law for the time being in force, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded.
Explanation.--In excluding the time required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the Government or other authority shall both be counted.
(3) In computing the period of limitation for any suit or application for execution of a decree by any receiver or interim receiver appointed in proceedings for the adjudication of a person as an insolvent or by any liquidator or provisional liquidator appointed in proceedings for the winding up of a company, the period beginning with the date of institution of such proceeding and ending with the expiry of three months from the date of appointment of such receiver or CS No. 57219/16 Page 13 of 32 liquidator, as the case may be, shall be excluded. (4) In computing the period of limitation for a suit for possession by a purchaser at a sale in execution of a decree, the time during which a proceeding to set aside the sale has been prosecuted shall be excluded.
(5) In computing the period of limitation for any suit the time during which the defendant has been absent from India and from the territories outside India under the administration of the Central Government, shall be excluded.
22. Although no specific date of filing of application with Ministry of External Affairs is available on record but letter Ex.PW1/6 issued by Ministry of External Affairs, Government of India to Embassy of Greece on 28.09.2005 and another letter Ex.PW1/7 written by the same Ministry to the President of Chauffeur and Domestic Welfare Association of April, 2006 also contained reference that a representation was received by the Ministry by December, 2005. In case the period between December, 2005 and 27.01.2011 i.e. more than six years is excluded from the time period, then the suit of the plaintiff is found to be filed well within limitation of the years as mentioned supra. This issue is accordingly answered in favour of the plaintiff and against the defendant. Issue No.1, 2 ● Whether the service of the plaintiff with the defendant was temporary in nature disentitle him to get the reliefs sought? ● Whether plaintiff is entitled to recovery of Rs.40 lacs as compensation for claimed illegal termination of service? OPP.
CS No. 57219/16 Page 14 of 3223. It is pleaded case of the plaintiff that he served Embassy of Greece since 1971 as a Driver and was supposed to retire only on 31.05.2006. Admittedly, no service contract has been filed or proved by the plaintiff either from 1971 or of any time thereafter. However, this plea of getting hired by the Embassy in the year 1971 has not been denied in the written statement. The only rider put on this admission is that the services of plaintiff were hired only on temporary basis. It is also pleaded that these temporary services were brought to an end in December, 1992 whereby plaintiff was prayed Rs.60,000/ as per FDR Ex.DW1/4 apart from payment of gratuity in terms of plaintiff's own acknowledgement as Ex.PW1/2. It is pleaded that this important aspect has been concealed by the plaintiff from his suit and as such this suit deserves to fail on this score itself. Close scrutiny of the replication filed by the plaintiff on 16.04.2013 to the written statement of the defendant shows that this fact has not been specifically denied. Even though first para of preliminary submissions in the written statement specifically pleas that temporary services of the defendant were dispensed in December, 1992 and he was paid FDR of Rs.60,000/ under acknowledgement, all that the plaintiff has said in the replication is that the pleas contained in the preliminary objections are incorrect, baseless, misleading and hence denied. The only qualification add to this evasive denial is that plaintiff's signatures are obtained on several blank papers and that they must have been manipulated and fabricated. It is argued that the term Replication does not find mentioned in the Court of Civil Procedure. While Order 7 pertains to Plaint and Order 8 to Written Statement set off and counter claim. The only stipulation qua the CS No. 57219/16 Page 15 of 32 procedural Code which can be closely related to Replication is Order 8 rule 9 CPC which is as under Under Order 8 Rule 9 CPC
9. Subsequent pleadings. No pleading subsequent to the written statement of a defendant other than by way of defence to setoff or counterclaim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.
24. It is submitted that since filing of replication referred to as "additional written statement" is not mandatory in law, the law of pleadings as applicable to written statement u/O 8 rule 3, 4 and 5 CPC shall not be applicable in the Replication. It is said that the duty of defendant to specifically denied each and every allegation in the plaint cannot be casted upon the plaintiff qua allegation containing in the written statement. Under Order 8 Rule 3 CPC
3. Denial to be specific. It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
Under Order 8 Rule 4 CPC
4. Evasive denial. Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular CS No. 57219/16 Page 16 of 32 amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.
Under Order 8 Rule 5 CPC
5. Specific denial. (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability.
Provided that the Court may in its discretion require any fact so admitted to be provided otherwise than by such admission.
(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require an such fact to be proved. (3) In exercising its discretion under the proviso to sub rule (1) or under subrule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.
(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.
25. In support of their plea, defendant has referred to DB Judgment of Hon'ble High Court of Delhi titled as "Saranpal Kaur Anand Vs Praduman Singh Chandhok" MANU/DE/0960/2016 where in while discussing the Order 7 and Order 8 rules 3, 4 and 5 and while applying the same on the replication, it was ruled, "Non denial of the knowledge of the Will in the replication would be treated as an admission of the plaintiff qua the CS No. 57219/16 Page 17 of 32 knowledge of the Will..... further in view of the evasive denial in the replication of the specific pleadings int the written statement about the knowledge of the plaintiff in respect of the Will.... plaintiff would be deemed to have admitted the fact."
Another judgment relied on behalf of defendant is "Mohan Madan VS Sheel Gulati" 223 (2015) DLT 57, wherein Hon'ble Delhi High Court observe "9(i). Before discussing in detail the aforesaid deposition and pleading of the plaintiff in para 5 of the plaint, it needs to be noted (and I have already stated this in the earlier part of this judgement) that plaintiff has for some strange reason chosen not to file any replication to the written statement filed by the defendant. In the written statement, the defendant has pleaded the categorical case that plaintiff out of the sum of Rs.25 lacs paid an amount of Rs.10 lacs by a cheque of Sh. Dharampal Malik and this cheque bounced on presentation.
(ii) In my opinion, nonfiling of replication in a case such as the present will amount to deemed admission of the facts of the written statement with respect to the amount of Rs.10 lacs being paid by cheque out of the amount of Rs. 25 lacs paid on 5.10.2005. Deemed admission will arise in view of Order 8 Rule 9 read with Order 8 Rule 5 and Order 8 Rule 10 of the Code of Civil Procedure, 1908 (CPC) and which provides that on non filing of replication (technically called as an additional written statement and not replication in Order 8 Rule 9, CPC), the same will amount to deemed admission of the contents of the written statement filed by a defendant."
26. The failure on the part of the plaintiff to specifically deny the averments of the defendant contained in the written statement amounts to admission.
CS No. 57219/16 Page 18 of 3227. Another important submission made by Ld. counsel for the defendant is that in so far as defendant is Embassy of Greece and is covered under Section 86 of CPC, any service related contractual obligation between them is covered under "Note Verbale" issued by Ministry of External Affairs, Government of India initially on 29.11.1975 where amendments issued from time to time. Even this plea of the defendant is not denied by the plaintiff in the replication. During the course of final argument, Ld. counsel for plaintiff conceded that the hiring of services by an Indian Citizen by a Foreign Embassy is covered by "Note Verbale". Copy of "Note Verbale" and the "Model Contract Form" qua the same was filed on record by Ld. Counsel for defendant which was not denied by the plaintiff. Rather one copy of the same has been relied and filed by the plaintiff in the form of document Ex.PW1/4 - Ex.PW1/5. The important extracts thereof are reproduced hereunder "The Ministry of External Affairs present their compliments to all Diplomatic and Consular Mission, U.N. Specialized agencies and other Inter Governmental Organizations in New Delhi and have the honour to enclose a copy of note Verbale No.DII 451 (18/11) 75 (Ph124) dated November 29, 1975 alongwith its enclosures regarding terms and conditions of service of locally recruited staff in their Missions. The foreign Missions may kindly note the following changes in the enclosed 'Model Contract'."
"It has come to the notice of this Ministry that some diplomatic Missions have been obtaining signatures of local employees, on employment contracts drawn up in the language of their own country alone. They have also not been providing copies of employment contracts to their local employees thus keeping them completely in the dark about terms and conditions of employment, particularly issues of medical cover, retirement benefits, and compensation on termination of service etc."CS No. 57219/16 Page 19 of 32
28. Attention of this Court is drawn to Clause 10 of the "Model Contract Form" which relates to termination of employment under "Note Verbale". Clause 10 a is reproduced hereunder 10 Termination of Employment
(a) Notice One month on either side or one month's salary in lieu thereof.
29. With the aid of this Clause it is argued on behalf of the defendant that the "Note Verbale" applicable to the services of local citizens hired by Foreign Embassy does not at all distinguish between temporary and permanent services. It is said that "Note Verbale" provides that the services of any employee engaged under the "Model Contract Form" can be brought to an end either by one month notice or under one month's salary. On this score, by drawing attention of this Court the document Ex.PW1/5, which is part of "Note Verbale" it is submitted that in so far as all the benefits of regular service like medical cover, gratuity, overtime, sick leave, maternity leave etc. are provided to such employees by the Embassies, their services shall be treated as those at par with Government Servants and as such upon termination of service the employee shall get not only damages for illegal termination but also compensation and retirement benefits.
30. In my considered view, this plea of plaintiff is nothing but a wishful thinking in so far as Clause 10 of the "Model Contract Form" designed by Ministry of External Affairs Government of India under the "Note Verbale" does not provide so and rather only provide for one month notice before termination of service. Although there are provisions for Leave, Gratuity etc. but mere existence of these CS No. 57219/16 Page 20 of 32 beneficial clauses does not change the nature of the "Model Service Contract" in any manner. The sheer fact that such a service can be terminated on a one month notice only goes to show that irrespective of the long period of service, the nature of the service of an Indian citizen with an Embassy remains temporary in nature.
31. In this regard, Ld. Counsel for defendant has relied on case titled Naresh Kumar Vs. Hiroshi Maniwa CS OS 393 2010 decided on 05.11.2015. In this case Hon'ble Delhi High Court while dealing with a matter pertaining to Private service contract wherein the service agreement provided that the services can be terminated with a three months notice, it was ruled while discussing Shri S S Shetty Vs. Bharat Nidhi Ltd., AIR 1958 SC 12.
"In view of the above discussion pertaining to the ratio of the judgment of the Supreme Court in case of S S Shetty , there cannot be granted relief to the plaintiff of declaring the termination of the plaintiff as illegal and void inasmuch as if the termination is illegal and void, then, at the best plaintiff is entitled to pre lunch salary for the notice period and which can be the only maximum liability upon the defendant.
32. In the S S Shetty case referred to supra Hon'ble Supreme Court had ruled that in case of employment by a private employer, even if there is an illegal termination, at the best the employee is entitled to the salary for the notice period.
33. Likewise in the Naresh Kumar judgement reliance is placed upon L M Khosla Vs. Thai Airways International Public Ltd. CS OS 673 of 1997 decided on 01.08.2012. In this judgment the services of plaintiff employee were terminated by the company by giving one month pay in lieu of one month notice CS No. 57219/16 Page 21 of 32 period. However, the employee filed a suit for compensation for Rs.71.81 lacs, apart from seeking a declaration his services could not have been terminated in the manner done. In this judgment while relying on the terms and conditions of the contract of the five year employment, the Court came to the conclusion that there was a Clause therein to terminate the service either by giving one month's notice or by giving one month pay in lieu thereof. The Bench after discussing the entire factual matrix of the case observed "it is not disputed before me that defendant no.1 has given one month's pay to the plaintiff in lieu of the notice period of one month. Therefore, the plaintiff is not entitled to any other compensation or damages or monies from defendant no.1."
34. Concluding his observations qua the remedies available to a terminated employee under a private contract in Naresh Kumar's case supra HMJ Valmiki Mehta observed "In view of the above discussion pertaining to the ratio of the judgmnent of the Supreme Court in the case of S.S. Shetty (Supra), there cannot be granted relief to the plaintiff of declaring the termination of the plaintiff as illegal and void inasmuch as even if the termination is illegal and void, then, at best the plaintiff is entitled to three months' salary for the notice period and which can be the only maximum liability upon the defendant no.7. Thus the only relief which the plaintiff is entitled to is that he would be paid three months' salary which was due to the plaintiff as on the date of his termination vide Letter dated 07.08.2009, and accordingly, the defendant no.7 is directed to pay three months' salary to the plaintiff w.e.f the date of the Termination Letter CS No. 57219/16 Page 22 of 32 dated 07.08.2009 alongwith interest @ 9% p.a. simple till payment. In case payment is not made within a period of three months, the rate of interest thereafter will become 18% p.a. simple."
35. In the light of the above discussion, coming to the facts of the case it is found that no formal contract of service was entered between the parties which could be read and relied to decipher the specific terms. In this matter of facts the only reliance which can placed by the Court is admitted applicability of "Note Verbale" and its amendments. As discussed supra, Clause 10 (a) of "Note Verbale" provides that notice on one month on either side or one month salary in lieu thereof alone is permissible in case of termination of service.
36. At this juncture, it is submitted by ld. counsel for the plaintiff that as per Section 23 of the Contract Act, this Court can come to a conclusion that the consideration or the object of the contract by nature was such that it would defeat the provision of Law. It is submitted by Ld. counsel for the plaintiff that a reference contained in Clause 10 (a) of the Note Verbale that a service which spans into 34 years can be terminated by a one month notice or by payment of one month salary more so when the due retirement is still six months away is contrary to the Law. It would be handy to have a glance at Section 23 of Contract Act. Section 23 in The Indian Contract Act, 1872
23. What consideration and objects are lawful, and what not.--The consideration or object of an agreement is lawful, unless-- --The consideration or object of an agreement is lawful, unless--" it is forbidden by law; 14 or is of such a nature CS No. 57219/16 Page 23 of 32 that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void. Illustrations
(a) A agrees to sell his house to B for 10,000 rupees. Here, B's promise to pay the sum of 10,000 rupees is the consideration for A's promise to sell the house and A's promise to sell the house is the consideration for B's promise to pay the 10,000 rupees. These are lawful considerations. (a) A agrees to sell his house to B for 10,000 rupees. Here, B's promise to pay the sum of 10,000 rupees is the consideration for A's promise to sell the house and A's promise to sell the house is the consideration for B's promise to pay the 10,000 rupees. These are lawful considerations."
(b) A promises to pay B 1,000 rupees at the end of six months, if C, who owes that sum to B, fails to pay it. B promises to grant time to C accordingly. Here, the promise of each party is the consideration for the promise of the other party, and they are lawful considerations. (b) A promises to pay B 1,000 rupees at the end of six months, if C, who owes that sum to B, fails to pay it. B promises to grant time to C accordingly. Here, the promise of each party is the consideration for the promise of the other party, and they are lawful considerations."
(c) A promises, for a certain sum paid to him by B, to make good to B the value of his ship if it is wrecked on a certain voyage. Here, A's promise is the consideration for B's payment, and B's payment is the consideration for A's promise, and these are lawful considerations. (c) CS No. 57219/16 Page 24 of 32 A promises, for a certain sum paid to him by B, to make good to B the value of his ship if it is wrecked on a certain voyage. Here, A's promise is the consideration for B's payment, and B's payment is the consideration for A's promise, and these are lawful considerations."
(d) A promises to maintain B's child, and B promises to pay A 1,000 rupees yearly for the purpose. Here, the promise of each party is the consideration for the promise of the other party. They are lawful considerations. (d) A promises to maintain B's child, and B promises to pay A 1,000 rupees yearly for the purpose. Here, the promise of each party is the consideration for the promise of the other party. They are lawful considerations."
(e) A, B and C enter into an agreement for the division among them of gains acquired or to be acquired, by them by fraud. The agreement is void, as its object is unlawful. (e) A, B and C enter into an agreement for the division among them of gains acquired or to be acquired, by them by fraud. The agreement is void, as its object is unlawful."
(f) A promises to obtain for B an employment in the public service and B promises to pay 1,000 rupees to A. The agreement is void, as the consideration for it is unlawful. (f) A promises to obtain for B an employment in the public service and B promises to pay 1,000 rupees to A. The agreement is void, as the consideration for it is unlawful."
(g) A, being agent for a landed proprietor, agrees for money, without the knowledge of his principal, to obtain for B a lease of land belonging to his principal. The agreement between A and B is void, as it implies a fraud by concealment, by A, on his principal. (g) A, being agent for a landed proprietor, agrees for money, CS No. 57219/16 Page 25 of 32 without the knowledge of his principal, to obtain for B a lease of land belonging to his principal. The agreement between A and B is void, as it implies a fraud by concealment, by A, on his principal."
(h) A promises B to drop a prosecution which he has instituted against B for robbery, and B promises to restore the value of the things taken. The agreement is void, as its object is unlawful. (h) A promises B to drop a prosecution which he has instituted against B for robbery, and B promises to restore the value of the things taken. The agreement is void, as its object is unlawful."
(i) A's estate is sold for arrears of revenue under the provisions of an Act of the Legislature, by which the defaulter is prohibited from purchasing the estate. B, upon an understanding with A, becomes the purchaser, and agrees to convey the estate to A upon receiving from him the price which B has paid. The agreement is void, as it renders the transaction, in effect, a purchase by the defaulter and would so defeat the object of the law. (i) A's estate is sold for arrears of revenue under the provisions of an Act of the Legislature, by which the defaulter is prohibited from purchasing the estate. B, upon an understanding with A, becomes the purchaser, and agrees to convey the estate to A upon receiving from him the price which B has paid. The agreement is void, as it renders the transaction, in effect, a purchase by the defaulter and would so defeat the object of the law."
(j) A, who is B's mukhtar, promises to exercise his influence, as such, with B in favour of C, and C promises to pay 1,000 rupees to A. The agreement is void, because it is immoral. (j) A, who is B's mukhtar, promises to exercise his influence, as such, with B in CS No. 57219/16 Page 26 of 32 favour of C, and C promises to pay 1,000 rupees to A. The agreement is void, because it is immoral."
(k) A agrees to let her daughter to hire to B for concubinage. The agreement is void, because it is immoral, though the letting may not be punishable under the Indian Penal Code (45 of 1860).
37. At this juncture, Ld. Counsel for the plaintiff has referred to observations made by the author in the commentary titled The Indian Contract Act by Pollock and Mulla on Page No. 352, 11th Edition with reference to Section 23 of the Contract Act.
Unconscionable Terms of Contracts with 'State" .....The Courts as constitutional functionaries would therefore relieve the weaker parties from unconstitutional contractual obligations, unjust, unfair, oppressive and unconscionable rules or conditions when the citizen is really unable to meet on equal terms with the State.
Opposed to Public Policy The general head of public policy covers, in English law, a wide range of topics. Agreements may offend against public policy by tending to the prejudice of the State in time of war (trading with enemies, etc.) by tending to the perversion or abuse of municipal justice (stifling prosecutions, champerty and maintenance) or, in private life, by attempting to impose inconvenient and unreasonable restrictions on the free choice of individuals in marriage, or their liberty to exercise any lawful trade or calling. Some of these matters are separately dealt with in the Contract Act.
38. The above observations of the author has to be read in the conjunction with and the object of Section 23 of the Contract Act. Purposive reading of illustrations contained in Section 23 shows that it is aimed to set aside only those agreements and contracts which are directly forbidden by Law.
CS No. 57219/16 Page 27 of 3239. However, in the case in hand, the "Note Verbale" derived by Government of India to provide for service contracts between the plaintiff driver and the defendant Embassy is not of such nature that it can be said to be covered under Section 23 of the Contract Act. Even otherwise it is not the case of the plaintiff that his entire service contract is covered under Section 23 rather only concern is that the termination clause which provides for termination of service by one month notice or one month salary should be treated as violation of 23 of Contract Act. I am not in conformity with this plea. The reason thereof that when two private entities or persons enter into a contract which is otherwise legal, they are also free to work out the modalities or fine prints thereof. One month notice is a clause which is applicable to both the sides meaning thereof that during this period could have resigned from the work of the defendant, had the plaintiff got better opportunity of the service, plaintiff too was at liberty to give his employer a one month's notice and leave the job without any adverse repercussions visiting him.
40. In the case in hand, as detailed supra it is admitted case by both the sides that there was no written contract between the parties. Also it is not the case of the plaintiff that there was an oral service contract wherein plaintiff could say that his services could not have been terminated for any reason till he attains the age of retirement i.e. 60 years. Rather plaintiff in the pleaded case as well as in the course of trial has himself relied on "Note Verbale".
41. In this regard reliance is placed by ld. counsel for the plaintiff in case titled AIR 2016 SC 440 so as to show that safeguard should be provided contractual employee in all respects. Having gone through the cited para 42 of the said CS No. 57219/16 Page 28 of 32 judgment, there is no two view that whatever is laid by Hon'ble Supreme Court is law of the land. The short issue before this Court in the case in hand is whether service clause of termination of service available to plaintiff as well as employee is something which can be said to an an oppressive and legal, ultravires or , fraudulent as sought by the ld. counsel for the plaintiff. However, I am still not convinced with this plea of Ld. Counsel for the plaintiff more so in the light of S S Shetty and L M Khosla judgments of Hon'ble Supreme Court and Naresh Kumar judgment of Hon'ble High Court that how can he claimed breach of service contract under "Note Verbale" when the termination was done as per the same.
42. Over and above, it is rightly pointed out by the defendant that in case the plaintiff was aggrieved of Class 10(a) of "Note Verbale", the plaintiff ought to have challenge the same either in the form of writ petition before the Hon'ble High Court or the Hon'ble Supreme Court. Having once failed to do so, the plaintiff is now estopped from challenging the same at this fag end of the trial orally and further more that the "Note Verbale" have been relied by the plaintiff while filing the suit. No such relief of declaration has been sought against "Note Verbale" in this suit.
43. In view of the above, the issues are decided against the plaintiff and in favour of the defendant and that the plaintiff is not entitled to any money in the name of compensation over in the name of claimed illegal termination.
CS No. 57219/16 Page 29 of 32Issues No. 3 and 4 ● Whether plaintiff is entitled to decree of Rs.20.05 lacs as terminal benefits? OPP.
● Whether plaintiff is entitled to monthly pension? OPP.
44. As far as issue no. 4, is concerned plaintiff claims monthly pension. In the light of discussion carried out in deciding issue nos. 1 and 2 and the judgments of Hon'ble Supreme Court and Hon'ble High Court it is evident that plaintiff is entitled to only one month's notice and not monthly pension. More so, when there was no such written or oral contract between the parties and that the "Note Verbale" relied by both the sides does not provide for the same.
45. As far as issue no.3 is concerned, Rs. 20.5 lacs has been claimed.
46. It is interesting to observe that even though the suit claims the terminal benefits of only Rs.20.05 lacs, in the breakup the amount has swelled to Rs.31,11,479.40p. This Court find that so many heads have been added in this breakup which are apparently beyond the pleadings. Also no specific evidence has been led in order to show the entitlement of the plaintiff to claim these amounts. No effort was made to summon the Account Officer from the defendant Embassy so as to seek from him the details of the document so as to show the entitlement of the plaintiff to seek these amounts. Also no effort was made to confront DW1 Shri Christos Gkeivelopoulos or to suggest to him that the plaintiff is entitled to these figures under the claimed heads.
47. Over and above, the document Ex.DW1/2 which bears the signatures of the plaintiff admitted by him in his crossexamination which shows that there is no CS No. 57219/16 Page 30 of 32 dues left till 15.12.1992. The record specific payments and receipt qua payments made to the plaintiff thereafter too form the part of defendant's evidence. As detailed supra from Ex.DW1/3 onwards to Ex.DW1/22.
48. Furthermore, during the course of arguments it is conceded by Ld. counsel for the plaintiff that the above figure was arrived at only by considering the terminal benefits available to permanent Government employee and not in consonance with the 'Note Verbale" relied by both the sides. In so far as the contractual relationship between the parties was governed by not other Law but by the "Note Verbale" the plaintiff is not entitled to any further claims beyond the one month period salary and gratuity.
49. The "Note Verbale" do provides for terminal benefits which include Gratuity. After the initial execution of document Ex.DW1/2 no dues left by 1992, no specific document has been filed on behalf of the defendant to show that plaintiff was issued Gratuity payment while the termination of service. Reliance is placed to document Ex.DW1/4 to Ex.DW1/10 which are receipts of FDR of Bank of Tokyo, one cash receipt of Rs.3,000/ of investment in Post Office Scheme, one UTI Certificate and three UTI receipts. These documents nowhere specify that the gratuity amount which is equivalent to one month's salary completed service from 1993 onwards was paying. In the absence of any specific evidence to show that these monies were deposited by the defendant Embassy and too that they were so paid out of Gratuity fund, this conclusion finds force from the fact that the Gratuity is a fund which is paid totally at the time of termination. Admittedly, there is no receipt of "No Payment Dues" for the Gratuity at the time of termination of CS No. 57219/16 Page 31 of 32 service. As such a lump sum of 13 months salary equivalent to remaining service rendered is payable to the plaintiff.
Relief
50. In view of the above discussion, the suit of the plaintiff is decreed with cost. Plaintiff is entitled to one month's salary in so far as defendant has failed to establish on record that on the service of termination notice dated 21.09.2005. Apart from this, plaintiff is also entitled to 13 months' salary under the head of Gratuity for services rendered alongwith interest @ 14% per annum.
Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in an open Court On 24th day of April, 2017 (Surinder S. Rathi) ADJ03/PHC/NEW DELHI 24.04.2017 CS No. 57219/16 Page 32 of 32