Delhi District Court
Vikrant Pathak vs M/S Hans Peace Corps on 31 January, 2024
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IN THE COURT OF MS. GUNJAN GUPTA,
ADDITIONAL DISTRICT JUDGE (ADJ-04) SOUTH
EAST, DISTRICT COURTS, SAKET, NEW DELHI
In the matter of
CS DJ 381/2017
1. Vikrant Pathak
R/o C-62, Nar Vihar I, Sector 34,
NOIDA, UP ....
Plaintiff
VERSUS
1. M/s Hans Peace Corps
(Unit of M/s The Hans Foundation)
C-301, 3rd Floor, HUDCO Place,
Andrews Ganj, Ansal Plaza,
Khel Gaon, Marg,
New Delhi-110045
2. M/s Hans Foundation Hospitals
(Unit of M/s The Hans Foundation)
C-301, 3rd Floor, HUDCO Place,
Andrews Ganj, Ansal Plaza,
Khel Gaon, Marg,
New Delhi-110045
3. M/s Hans Foundation
C-301, 3rd Floor, HUDCO Place,
Andrews Ganj, Ansal Plaza,
Khel Gaon, Marg,
New Delhi-110045
4. M/s Hans Eyes Care
(Unit of M/s The Hans Foundation)
C-301, 3rd Floor, HUDCO Place,
Andrews Ganj, Ansal Plaza,
Khel Gaon, Marg,
CS DJ 381/2017
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New Delhi-110045
5. M/s Hans Cultural Centre
42, Bhatti Mines,
Opposite Radha Swami, Gate no. 24,
New Delhi-110024
6. Ms. Mala Steffen
Managing Director,
The Hans Foundation Hospitals
C-301, 3rd Floor, HUDCO Place,
Andrews Ganj, Ansal Plaza,
Khel Gaon, Marg,
New Delhi-110045
7. Mr. Pankaj Mohan Sharma
AVP- Human Resources,
The Hans Foundation Hospitals
Delhi-Haridwar Highway,
Bahadarabad
Haridwar 249402 (Uttarakhand) ....Defendants
Date of Institution : 03.03.2017
Date reserved for judgment : 16.01.2024
Date of judgment :
31.01.2024
DECISION : Partly
Decreed
Suit for Declaration, Damages, Mandatory Injunction
JUDGMENT
1. The present suit is filed by the plaintiff against the defendants seeking declaration that his termination order dated 07.10.2016 issued by the defendant no. 2 be declared CS DJ 381/2017 -3- as illegal, wrongful, malafide and without jurisdiction and hence null and void, along with damages for illegal termination and for defamatory allegations as well as for mental stress, trauma and harassment. The plaintiff has also prayed for mandatory injunction against the defendants directing them to pay plaintiff's dues and to issue an apology in the leading English and Hindi Newspapers for using defamatory language used against him.
2. Brief facts of the case, as set out in the plaint, are that :
(i) The Plaintiff was appointed as Vice President (Administration) by Defendant no. 1-M/s Hans Peace Corps, vide letter dated 18.04.2013. The Defendant no. 1 was a project under the Hans Foundation i.e. defendant no. 3. The gross salary of the plaintiff was Rs. 2,00,000/- and Rs. 25,000/- towards rent per month.
(ii) Upon joining the services of Defendant no.1 on 01.05.2013, the Plaintiff was told to perform the duties for all the branches/ sister concerns of Hans Foundation i.e. defendant no. 3. The Plaintiff was mainly performing duties for the defendant no.2 i.e. M/s Hans Foundation Hospitals and was under the sole control of defendant no. 2.
(iii.) The job/ services of the Plaintiff was interchangeable on the instructions of the Defendant No.2. The Defendant No.2 CS DJ 381/2017 -4- used to assign work to the plaintiff and further depute him to work for any of the Defendants herein.
(iv.) The Hans Foundation (Defendant no.3 herein) is the umbrella organization under which the defendants no.1, 2 and 4 operate.
(v). Plaintiff was also made to work for M/s Hans Eyes Care (defendant no.4 herein).
(vi.) Defendant no. 5 i.e. M/s Hans Cultural Centre is not part of the Defendants no. 1 to 4 yet the plaintiff was made to work for the Defendant no. 5 on continuous basis, inspite of his protests.
(vii.) The Defendant No.2 used to make the Plaintiff work for different entities without remuneration on continuous occasions, however, he never demanded remuneration for the same as the defendant no. 6 requested him not to claim. (viii.) The Plaintiff on many occasions asked for a written orders from the Defendant No-1, however he was told not to bother about the same.
(ix.) Vide an email dated 07.10.2016 the defendant no. 2 arbitrarily terminated the services of the plaintiff without giving any notice or notice pay or compensation and without offering any full and final settlement.
(x) It is averred that the Defendant no. 2 had no authority to pass the order of termination of the Plaintiff as he was appointed by defendant no. 1.
CS DJ 381/2017 -5-(xi) No charge-sheet or memorandum was ever issued to plaintiff by the defendants.
(xii) It is averred that the service of the Plaintiff were exemplary and unblemished and during the services of the Plaintiff, Plaintiff was given promotion, appreciation, increase of remuneration and rewards. Many incentives were also extended to him.
(xiii) During the period of his employment, the plaintiff established and developed the entire "The Hans Foundation Hospitals" and increased the credibility of the defendants.
(xiv) Around August - September 2016 the plaintiff and his colleagues pointed out certain irregularities which were in the nature of statutory evasion of the Government regulations, breach of guidelines pertaining to National Green Tribunal, Haridwar Development Authority, Statutory compliances pertaining to Hospital Project of Defendant no. 5 and continuous misuse of funds. At this Ms. Mala Steffen (Defendant no. 6) who is the Managing Director of the management of the defendants No-1, 2 and 4 and also the overall in charge of the entire 'The Hans Foundation Hospitals' i.e. the Defendant No. 2 assured the Plaintiff and his colleagues that she would personally look into the matter.
(xv.) However, instead of rectifying the irregularities which were being committed against the Government CS DJ 381/2017 -6- departments in conducting the affairs of the Defendants, Defendant No. 2 under the signature of one Mr. Pankaj Mohan Sharma (Defendant No.7) acting under the instructions of Ms. Mala Steffen (Defendant no. 6) terminated the services of the Plaintiff illegally and abruptly by way of a mail dated 07.10.2016. By the said mail, Mr. Pankaj Mohan Sharma also requested the plaintiff to deposit all the related properties of the Defendant No. 2. The said mail of 07.10.2016 was also copied to one Mr. A.V.Balakrishnan, who was working with Defendant no.2. It is stated that the Defendant No.7 is not the competent person to pass such orders. (xvi) The plaintiff asked the defendant no. 6 that how he was terminated by defendant no. 2 when he was appointed by defendant no. 1, to which she replied that all the defendants are one entity and told the plaintiff not to be seen near office or he shall face dire consequences. (xvii) Again vide e-mail dated 08.10.2016 Mr. Pankaj Mohan Sharma reminded the Plaintiff that they have not received the laptop and Scorpio car of Defendant No. 2 bearing Car No. DL8CAK8229 and in the said mail, Plaintiff was also threatened with legal recourse. This mail was also copied to Mr. A.V. Balakrishnan. (xviii) Vide email dated 08.10.2016 the Plaintiff replied to the mail of Mr. Pankaj Mohan Sharma and also copied. Mr. CS DJ 381/2017 -7- A.V. Balakrishnan and the Managing Director Ms. Mala Steffen asking for some time for returning the belongings and also requesting for a meeting with the Managing Director. No response was received to the said mail. (xix) Vide email dated 08.10.2016 the Plaintiff received a notice from the advocate of the "The Hans Foundation Hospitals" i.e. defendant No. 2 which was got issued by the Defendant No. 6 and 7 acting in connivance and conspiracy.
(xx) Vide mail dated 05.11.2016 and also letter dated 07.11.2016 the Plaintiff herein responded to the above mail denying the allegations made therein and stating that he had already returned the belongings of the management as mentioned by the Defendant No. 2 in its mail of termination dated 07.10.2016, 08.10.2016 and legal notice dated 08.10.2016 against proper receipt issued by Mr. Pankaj Mohan Sharma.
(xxi) On 28.10.2016 the Plaintiff served a demand notice to the Defendants protesting against his termination of services w.e.f. 07.10.2016 by Defendant No. 2 and also stating that he had already returned the belongings of the management against the receipts dt 12.10.2016 issued by Mr. Pankaj Mohan Sharma.
(xxii) Thereafter, the Plaintiff received letter dated 22.11.2016 issued by the lawyer of Defendant No. 2, CS DJ 381/2017 -8- served on behalf of all the Defendants stating that all were one entity of the "The Hans Foundation". The said letter contained defamatory allegations against the Plaintiff which were baseless and an after thought to cover the act of illegal termination by the Defendant no. 2. The said allegations were made for the first time and were never mentioned in the letter of termination. No chargesheet or memorandum or any enquiry was conducted by the management of Defendant No. 2 on the allegations mentioned in the said letter.
(xxiii) Vide his letter dated 01.12.2016 the Plaintiff replied to the said letter dated 22.11.2016.
(xxiv) It is averred that the Defendant No. 2 along with other Defendant's has damaged and tarnished the reputation of the Plaintiff by intentionally casting stigmatic and scandalous and defamatory allegations at the instance of Defendant no. 6 and 7 who were acting in the conspiracy with each other.
(xxv) It is averred that the Defendants No 6 and 7 used stigmatic words about the Plaintiff in front of the juniors of the Plaintiff and many colleagues of the Plaintiff by calling him a corrupt person and a thief.
(xxvi) It is averred that the Plaintiff was also informed by certain people who are regular to the premises of the Defendant that the Defendants at their premises at New CS DJ 381/2017 -9- Delhi and Haridwar had pasted the reply of the advocate dated 22.11.2016 on the walls outside the defendant building and also inside the premises at the office of the Defendants on the notice Board of the company. (xxvii) It is averred that the Defendant No.6 and 7 have distributed the same within the premises of the company in New Delhi & Haridwar.
(xxviii) It is averred that the Plaintiff is being avoided by his colleagues and he has become an object of unfavourable sentiments of his fellow colleagues and friends. It is averred that by the above acts, the Plaintiff has been defamed and the same are false and baseless to the knowledge of defendant no. 6 and 7.
(xxix) It is averred that the acts of Defendant no. 6 and 7 were intended to to harm the reputation of Plaintiff and were malicious.
(xxx) At the time of termination the plaintiff was drawing salary of Rs. 2,65,455/- per month and Rs. 31,85,460/- per annum.
(xxxi) Hence, the Plaintiff has filed the present suit seeking the following reliefs:-
1. A declaration that termination of his service by the Defendants vide e-mail dated 07.10.2016 is null and void as the same is wrongful, illegal, unfair and malafide and without jurisdiction CS DJ 381/2017
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2. Damages of Rs. 25 Lakhs towards illegal termination along with interest at the rate of @18% till the date of realization.
3. Damages of Rs. 25 Lakhs towards the defamatory language used by Defendant no. 6 and 7 along with interest of @ 18% per annum.
4. Damages Rs. 25 Lakhs on account of mental stress, trauma, emotional turmoil, harassment and mental tension, caused to the Plaintiff by Defendant no. 2, 3, 6 and 7.
5. Decree of mandatory injunction against defendant no.
2, 6 and 7 directing them to pay the dues to which the Plaintiff is entitled.
6. Decree of mandatory injunction against defendant no. 2, 6 and 7 directing them to issue an apology in leading English and Hindi Newspaper for the defamatory language used by them and for the illegal termination.
7. Costs.
Case of the Defendants no. 1 to 7
3. The defendants no. 1 to 7 filed their W.S denying the averments in the plaint and stating that the story put forth by the plaintiff is a sheer concoction and is devoid of truth. It is averred that baseless allegations have been made against the defendants by the plaintiff.
CS DJ 381/2017- 11 -
4. It is stated by defendants no.1 to 7 that the Plaintiff was appointed as Vice President- Administration on April 18, 2013 for Hans Peace Corps (HPC) (a project of The Hans Foundation) by Ms. Mala Steffen, authorised signatory and head of the project "HPC". It is averred that name of defendant no. 1-HPC later on vide resolution dated 28.06.2013 was changed to Hans Eye Care i.e. defendant no. 4 (a unit of The Hans Foundation) and all the employees working for HPC became the employees of Hans Eye Care w.e.f. 28.06.2013 and since then HPC ceased to be in existence. It is averred that the Plaintiff was the authorised signatory on all the Bank Accounts of the Hans Eye Care and other units of The Hans Foundation i.e.-defendant no. 3 and as such was well aware of the changes etc and all the employees working for HPC were absorbed in Hans Eye Care and since the date of resolution dt 28.06.2013, HPC ceased to be in existence.
5. It is further averred that since defendant no. 1 cease to be in existence since 28.06.2013, hence the question of plaintiff working with it as Vice President does not arise. It is averred that the plaintiff was thereafter working as Vice President for defendant no.2 and as the defendant no.2 is a Unit of defendant no.3, which controls and manages the projects of defendant no. 4 & 5 and therefore defendant no.2 had jurisdiction to terminate the services of the CS DJ 381/2017
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plaintiff.
6. It is averred that though Defendant No. 3 and Defendant No. 5 are two separate legal entities, however D-5 owns a hospital named as 'The Hans Foundation General Hospital' situated at Satpuli, Uttrakhand and since Defendant No. 3 and its units had the expertise to run the hospitals/ healthcare centers, therefore the management of running and maintaining of The Hans Foundation General Hospital situated at Satpuli, Uttrakhand was entrusted to Defendant No. 3 and its units by Defendant No. 5 management; which was happily accepted by Defendant No. 3 and its units. It is averred that it was in this backdrop of the facts/circumstances that the Plaintiff was working for Defendant No. 5.
7. It is the case of defendants that the plaintiff was terminated by invoking clause 8 of the offer letter / appointment letter dated 18.04.2013 as he was found indulging in favoritism in awarding contract to certain chosen people and indulging in financial irregularities thereby causing huge financial loss to the defendants. It is averred that the plaintiff was given full opportunity to explain his misdeeds and his misdeeds were discussed at length to true spirit of natural justice and he was given ample opportunities to explain the same. It is further CS DJ 381/2017
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averred that plaintiff was only terminated thereafter when he failed to offer any satisfactory explanation.
8. It is further averred that plaintiff has created a cartel among few employees namely Sh. Amarjeet Chhikara and Sh. Rahul Dhanvantri who are hand in gloves with the plaintiff and aided the plaintiff in his misdeeds.
9. It is further averred that plaintiff was himself authorised to ensure compliance of applicable Govtt. rules and regulations and,therefore, the averments that he was terminated because he has pointed out these irregularities also, does not hold weight. It is further averred defendant no. 6-Ms. Mala Steffen is no more M.D of defendant no. 2 and the suit is not maintainable against her as she is neither the necessary or property party to the suit. It is further averred that defendant no. 7 is heading the H.R Department of defendant no. 2 and was empowered to issue termination.
10. ISSUES On the basis of pleadings and documents on record, following issues were framed on 14.12.2018:-
i) Whether the plaintiff is entitled to decree of declaration as prayed for in prayer clause (a)? OPP.
ii) If the issue no. 1 is decided in favour of the plaintiff, whether plaintiff is entitled for decree of damages? If yes, the quantum thereof? OPP CS DJ 381/2017
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iii) If the issue no.2 is decided in favour of the plaintiff, whether plaintiff is entitled to interest on the said damages? If yes, the rate and the period for the same? OPP
iv) Whether the plaintiff is entitled to damages on account of mental stress, emotional trauma and harassment on account of his illegal termination and consequential unemployment? If yes, quantum thereof? OPP
v) Whether the plaintiff is entitled to mandatory injunction as sought in prayer clause (d)? OPP
vi) Whether the suit of the plaintiff suffers from concealment of material facts? OPD1 to 5.
vii)Whether the plaintiff has not approached the Court with clean hands? OPD1 to 5.
viii) Whether the suit is bad for misjoinder / non-
joinder of parties in view of preliminary objections no. 4? OPD1 to 5
ix)Relief.
EVIDENCE LED BY PLAINTIFF
11. Evidence in this case was conducted before Ld. L.C Sh. Gurmeet Singh Ahuja appointed vide order dt 30.03.2019.
12. Plaintiffs in support of their case examined the plaintiff as PW-1. He tendered his evidence by way of CS DJ 381/2017
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affidavit EX.PW1/A and relied upon the following documents:
1. Copy of the suit Ex. PW1/1 (Colly),
2. Copy of offer letter / appointment letter dated 18.04.2013 Ex. PW1/2,
3. Copy of termination letter dated 07.10.2016 Ex.PW1/3,
4. Copy of e-mail dated 08.10.2016 Ex.PW1/5,
5. Copy of the reply dated 08.10.2016 Ex.PW1/6,
6. Copy of letter of returning the belongings of the defendant received by Pankaj Mohan Sharma dated 12.10.2016 Ex.PW1/7,
7. Copy of the reply on behalf of the plaintiff dated 05.11.2016 Ex.PW 1/8,
8. Copy of letter dated 07.11.2016 and postal receipt Ex.PW 1/8 (Colly),
9. Copy of letter dated 28.10.2016 and postal receipt Ex.PW 1/9 (Colly),
10.Copy of the reply dated 22.11.2016 Ex.PW1/10 (running into 4 pages),
11.Copy of the reply dated 01.12.2016 postal receipt and tracking report Ex. PW1/11(Colly),
12.Copy of bank statement from January 2015 to 30.03.2015 Ex.PW1/12,
13.Copy of the printout of photograph Ex. PW 1/13 CS DJ 381/2017
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(Colly) (running into 3 pages),
14.Copy of e-mail dated 08.07.2014 Ex.PW1/14,
15.Copy of Hindi Newspaper cutting published in 'Dainik Jagran' and 'Amar Ujala' dated 30.10.2013 Ex.PW1/15,
16.Copy of salary slip for the month of August and September 2016 Ex.PW1/16,
17.Copy of certificate u/s 65 B of Evidence Act Ex.PW1/17.
13. The defendants in support of their case did not examine any witness and defence evidence was closed vide statement recorded before Ld. LC on 19.07.2019.
14. Thereafter the matter was posted for final arguments.
15. I have heard the arguments of both the sides and have gone through the record of the case.
16. My issue-wise findings are as under:
17. Issue no.i:
i) Whether the plaintiff is entitled to decree of declaration as prayed for in prayer clause (a)? OPP.
(Prayer: (a) a decree of declaration in favour of the plaintiff and against the defendants declaring the termination of the plaintiff by the defendant No. 2 company vide mail dated 07.10.2016 as null and void as the same is illegal, wrongful, unfair and malafide CS DJ 381/2017
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and without any jurisdiction.)
18. It is submitted by the Ld. Counsel for the plaintiff that the appointment letter dt 18.04.2013 Ex.PW1/2 and the letter of termination dated 07.10.2016 Ex.PW1/3 are not disputed and are admitted by the defendants. It is submitted that the services of the plaintiff were terminated with immediate effect without serving him any notice and without informing him of any of the reasons for termination of his services and straight away above email was sent to him, therefore, was in violation of clause 7 of the appointment letter. The said clause is reproduced herein below:
'7. During the probation period, if considered necessary your appointment shall be terminated without giving any prior notice any prior notice at the sole discretion of the Management of HPC. After successful completion of the probation period, if the management decides to terminate your employment you shall be given a 30 days termination notice from HPC or Salary and/ or Allowances in lieu thereof. You shall be entitled to terminate your employment by giving a thirty (30) days prior notice to the Organisation stating therein the reasons for the same. '
19. It is submitted that the Defendants served the legal notice dated 22.11.2016 Ex.PW1/10 upon the Plaintiff casting defamatory and baseless allegations against the Plaintiff for the first time. It is submitted that this was the first notice ever received by the Plaintiff wherein atleast he was informed of the reasons of his termination though the CS DJ 381/2017
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same were false and baseless. It is submitted that for the first time Clause 8 of the appointment letter was invoked and allegations of corruption, mis-appropriation of funds and unethical practice, etc were leveled against the Plaintiff.
20. It is submitted that it was an outburst to the plaintiff's demand notice dt 28.10.2016 Ex.PW1/9 (Colly) served by the plaintiff upon the defendant.
21. Clause 8 of the appointment letter is reproduced herein below:-
' 8. The management retains the right to terminate your services without any prior notice or compensation, if in the opinion of the management, you are guilty of insubordination, insolence, gross negligence or dereliction of duty, dishonest or embezzlement or conduct prejudicial to HPC's interest's'.
22. It is submitted that the defendants have also miserably failed to prove, the allegations made in the above legal notice, in the present proceedings. It is submitted that the allegation are false and baseless. Be that as it may, denying all the allegations it is submitted that even if the services of the Plaintiff were terminated on the ground as mentioned above, yet the Defendants were under an obligation to issue a show cause notice qua the said allegations, some memo or charge-sheet or least conduct an enquiry qua the said allegations, which was not done. It is submitted that none of the Principles of Natural Justice CS DJ 381/2017
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were followed by the Defendants in terminating services of the Plaintiff and hence even under clause 8 of the letter of appointment, the termination of the Plaintiff was illegal.
23. In support of his contentions the Ld. Counsel for the plaintiff has placed reliance upon the following judgments:
AK Kraipak and Others Vs. Union of India
-AIR 1970 SC 150. 171, wherein it was held by Hon'ble Supreme Court that:
"20. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of land but supplement it. The concept of Natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely: (1) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram patem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable CS DJ 381/2017
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to administrative enquiries. Often times it is not easy to draw the lines that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries whcihc are considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have ore far reaching effect than a decision in a quasi-judicial enquiry. As observed by the Court in Suresh Koshy George v. University of Kerala (Civil Appeal no. 990/68, decided on 15.07.1968) the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for the purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of the rule was necessary for a just decision on the fact of that case. "
24. Dharmpal Satyapal Limited Vs. Deputy Commissioner of Central Excise, Gauhati and Others-Civil Appeal No. 4458-4459 of 2015 of Hon'ble Supreme Court, wherein it was held as under:
"25. This aspect of procedural fairness namely, right to a fair hearing would mandate what is literally known as '"earing the other side'"
Prof. D.J. Galligan attempts to provide what he calls "a general theory of fair treatment'" by exploring what it is that legal rules requiring CS DJ 381/2017
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procedural fairness might seek to achieve. He underlines the importance of arriving at correct decision, which is not possible without adopting the aforesaid procedural fairness, by emphasising that taking of correct decisions would demonstrate that the system is working well. On the other hand, if mistakes are committed leading to incorrect decisions, it would mean that the system is not working well and the social good is to that extent diminished. The rule of procedure is to see that the law is applied accurately and as a consequence, that the social good is realised. For taking this view, Galligan took support from Bentham, who wrote at length about the need to follow such principles of natural justice in civil and criminal trials and insisted that said theory developed by Bentham can be transposed to other forms of decision making as well. This jurisprudence of advancing social good by adhering to the principle of natural justice and arriving at correct decisions is explained by Galligan in the following words:
"On this approach, the value of legal procedures is judged according to their contribution to general social goals. The object is to advance certain social goals, whether through administrative processes, or through the civil or criminal trial. The law and its processes are simply instruments for achieving some social good as determined from time to time by the law makers of the society. Each case is an instance in achieving the general goal, and a mistaken decision, whether to the benefit or the detriment of a particular person, is simply a failure to achieve the general good in that case. At this level of understanding, judgments of fairness CS DJ 381/2017
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have no place, for all that matters is whether the social good, as expressed through laws, is effectively achieved."
Galligan also takes the idea of fair treatment to a second level of understanding, namely, pursuit of common good involves the distribution of benefits and burdens, advantages and disadvantages to individuals (or groups). According to him, principles of justice are the subject-matter of fair treatment. However, that aspect need not be dilated upon".
27. It, thus, cannot be denied that principles of natural justice are grounded in procedural fairness which ensures taking of correct decision and procedural fairness is fundamentally an instrumental good, in the sense that procedure should be designed to ensure accurate or appropriate outcomes. In fact, procedural fairness is valuable in both instrumental and non-instrumental terms.
28. It is on the aforesaid jurisprudential premise that the fundamental principles of natural justice, including audi alteram partem, have developed. It is for this reason that the courts have consistently insisted that such procedural fairness has to be adhered to before a decision is made and infraction thereof has led to the quashing of decisions taken. In many statutes, provisions are made ensuring that a notice is given to a person against whom an order is likely to be passed before a decision is made, but there may be instances where though an authority is vested with the powers to pass such orders, which affect the liberty or property of an individual but the statute may not contain a provision for prior hearing. But what is important to be noted is that the applicability of principles of natural justice is not dependent upon any statutory provision. The principle has to be mandatorily applied irrespective of the CS DJ 381/2017
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fact as to whether there is any such statutory provision or not."
25. Relying upon the above judgments, it is submitted by the Ld. Counsel for the Plaintiff that even through Plaintiff was in a private employment yet the Principles of Natural Justice were to be mandatorily followed before arriving at a decision of termination as the same has a drastic impact upon the plaintiff.
26. It is further submitted that since the services were terminated allegedly as per termination letter dated 07.10.2016 Ex.PW1/3, on the ground of corruption, mis- appropriation of funds, unethical practices, taking of kick backs etc, the termination was stigmatic and Penal in nature and hence the compliance with Principles of Natural Judge was essential.
27. In support of his contentions, the Ld. Counsel for Plaintiff has placed reliance upon the Judgment in:
1. Kailash Chand Vs DTC [2015 SCC OnLine Del 14600] wherin it was held by Hon'ble High Court of Delhi that:
" 14. Next came the decision of the Constitutional Bench reported as AIR 1960 SC 689 State of Bihar v Gopi Kishore Prasad wherein following 5 propositions were laid down regarding termination of the services of a probationer:-
"3. But, if instead of terminating such a person‟s service without any enquiry, the employer chooses CS DJ 381/2017
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to hold an enquiry into his alleged misconduct, or inefficiency or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case, he is entitled to the protection of Article 311(2) of the Constitution.
4. In the last mentioned case, if the probationer is discharged on any one of those grounds without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge, it will amount to a removal from service within the meaning of Article 311(2) of the Constitution and will, therefore, be liable to be struck down".
2. In SP Sharma Vs. IFCI Ltd & Anr [2015 SCC Online 11311] it was held by Hon'ble High Court of Delhi as under:
"8. We need not list the decisions which give the reason why an order terminating the service of a probationer, if stigmatic, is a penal order. We simply note that the legal principle is that where the order affects the reputation of the employee it would hinder future prospects of a job and therefore would be penal. A stigma is a mark of disgrace and hence stigmatic would mean 'of or relating to a stigma'.
9. Law treats reputation as a property. Law also treats reputation as an honour and if understood as an honour it signifies the estimation which a person receives from society. Reputation is also treated in law as dignity for the reason a person's dignity depends on whether others in the community give him the deference that is his desert as a full member of the society."CS DJ 381/2017
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3. In Dr. Vijayakumaran C.P.V vs Central University Of Kerala & Ors [(2020)12 SCC 426] it was held by Hon'ble Supreme Court as under:
"35. The above decision is, in our view, a clear authority for the proposition that the material which amounts to stigma need not be contained in the order of termination of the probationer but might be contained in any document referred to in the termination order or in its annexures. Obviously, such a document could be asked for or called for by any future employer of the probationer. In such a case, the order of termination would stand vitiated on the ground that no regular enquiry was conducted. We shall presently consider whether, on the facts of the case before us, the documents referred to in the impugned order contain any stigma."
28. It is further submitted that the defendants have also failed to prove any of the alleged acts imputed upon the plaintiff and have neither proved the documents filed by them on record nor have brought any witnesses to prove the said allegations. It is further submitted that no questions have been put to the plaintiff during his cross-examination that the plaintiff was involved in the acts as alleged neither any such suggestions were made in the cross-examination.
29. It is further submitted that the act of termination was malacious and his services were terminated because the Plaintiff alongwith his colleagues in the Month of August - September 2016, had pointed out certain irregularities in compliances of Government regulations pertaining to Hospital CS DJ 381/2017
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project of Defendant no.5 and continuous misuse of funds which did not go well with the defendants especially Defendant no. 6 and Defendant no.7. Thus, to conceal the irregularities and wrong doings of the organization the Plaintiff was terminated from his services. Malice of defendants is further substantiated by fact that the Plaintiff was a diligent and hardworking employee and had helped in the development and growth of the defendant organization. It is submitted that the Plaintiff had been appreciated on may occasions for his good work by the defendants.
30. The Ld. Counsel has referred to the e-mail dated 02.07.2014 Ex.PW1/14 written by Ms. Mala Stifn to the Plaintiff appreciating him for his contribution to the organization. The ld counsel has also referred to Ex.PW1/13 & Ex.PW1/15 which are the copies of the photographs and newspaper cuttings respectively showing the Plaintiff distributing cheques on behalf of the Defendant.
31. It is further submitted that the Plaintiff was appointed by Defendant no.1 and Defendant no.2 had no authority to terminate the services of the Plaintiff and hence the orders of termination was without jurisdiction.
32. Refuting the above contentions, it is submitted by the Ld. Counsel for the Defendant that termination of the Plaintiff was lawful and valid as the same is in consonance with Clause 8 of the "Offer cum appointment CS DJ 381/2017
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letter for Employment" dated 18.04.2013 (hereinafter referred to as appointment letter) and thus neither any notice nor any compensation in lieu of the notice was required to be paid and thus the plaintiff has been rightly terminated with immediate effect.
33. It is argued that the Plaintiff was given full opportunity to explain the charges against him and on 07.10.2016 he was confronted with the documentary evidence which proved and established his misdeeds. However, the Plaintiff failed to explain the same. Thus, the Defendants had terminated the services of the Plaintiff after exhausting the Principles of Natural Justice. To substantiate his contention the Ld. Counsel has referred to the words "Discussion this AM" in the e-mail dated 07.10.2016 Ex. PW1/3. It is submitted that any further continuation of the services of the Plaintiff would have caused irreparable financial damages to the Defendant considering the fact that the Plaintiff was enjoying a very high position (Vice President) in the Defendant Organization and thus termination of his services with immediate effect was necessary.
34. To support his above contention the Ld. Counsel for the Defendants has placed reliance upon the document dt 31.01.2014 titled as "Pre Fab Structure for HEC Hospital 10 Beds at Bahadrabad, Haridwar-Note 01" which is CS DJ 381/2017
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annexed at page no. 125 of the W.S. It is submitted that it is clear from the said document that the quotations were received from 3 vendors and the Plaintiff had maliciously awarded construction tender to M/s Saifi Interiors Pvt. Ltd as lowest bidder inspite of the fact that the lowest bidder was ACME Cleantech Solutions Ltd. It is submitted that it has also been found that the plaintiff was getting the renovation work of his house done from the same M/s Saifi Interiors around the same time.
35. It is submitted that the Plaintiff has admitted being the author of the above document during his cross examination and hence admitted his culpability. It is submitted that the above fact explains the validity of the termination letter dated 07.10.2016 in terms of Clause 8 of the appointment letter dated 18.04.2013.
36. It is further submitted that Plaintiff in his cross examination was also asked whether he tendered apology for his admitted misdeed in the organization during his employment, to which plaintiff could not give a satisfactory answer.
37. It is submitted that even the document dt 10.09.2014 titled as "Siddhant Construction - 12th RA Bill Satpuli Hospital-Note 06" at page 119 of the W.S shows the misdeeds of the plaintiff as the plaintiff therein had recommended "on account" payment to the contractor.
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38. Refuting the contentions of malicious termination, the Ld. Counsel for the Defendant has argued that the Plaintiff was himself responsible for the compliances of all the Govt. regulations etc and hence the question of pointing out the same to the Defendants' or defendants no. 6 and 7 hiding or concealing the irregularities does not arise. It is further submitted that in the newspaper cuttings Ex.PW1/15 and the photographs Ex.PW1/13 (colly) are irrelevant. Thus, no malice whatsoever existed and even counsel has failed to substantiate his contentions.
39. It is further submitted that the judgments relied upon by the Plaintiff in support of his contentions are not applicable to the facts of the case and thus do not support the Plaintiff case.
40. Ld. Counsel for the Defendant has controverted the judgments relied upon by the Plaintiff by submitting that the judgment passed in A.K Kraipak v. Union of India and Dharampal Satyapal Ltd Vs. Deputy Commissioner of Central Excise and Kailash Chand vs DTC (supra) are not applicable to the facts and circumstances of the present case as the said judgments related to cases of public employments.
41. It is further submitted that the judgment of S.P. Sharma vs. IFCI Ltd. & Anr (supra) is also not applicable to the present case as the termination letter in the instant case was not stigmatic.
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42. It is further argued that a contract for private employment is determinable u/s 14(1)(C) Specific Relief Act 1963, and therefore, even if the court come to the conclusion that the case of the Plaintiff is not covered under clause 8 of the appointment letter dated 18.04.2013, the case of the plaintiff would be covered by Clause 7 and the Plaintiff in that case would at best be entitled to one months Salary which he has neither sought, nor is entitled to as clause 8 of the appointment letter is applicable.
43. To support his contention the Ld. Counsel has placed reliance upon the following judgments -S.S. Shetty vs. Bharat Nidhi Ltd- Civil Appeal No. 329/1956 passed by Hon'ble Supreme Court and case titled as SDU Travels Pvt. Ltd Vs. Vipin Sharma --FAQ No. 134/2017 decided on 04.05.2017 passed by Hon'ble High Court of Delhi and case titled as Naresh Kumar Vs. Hiroshi Maniwa and & Ors -CS (OS) No. 393/2010 passed by Hon'ble High Court of Delhi.
44. In Naresh Kumar Vs. Hiroshi Maniwa and & Ors, the Hon'ble High Court of Delhi after discussing at length the law laid down in various judgments held as follow:
"8. In view of the aforesaid judgments, the following conclusions in law emerge:-
(i) A contract of private employment is not similar to the public employment and in such private employment there is no scope of applicability of the principles of administrative law/public law.
(ii) A contract of employment which provides CS DJ 381/2017
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termination of services by one month's notice, then, at best the employee will only be entitled to one month's pay in terms of the employment contract. An employee is not entitled to any relief of continuation in services or pay with consequential benefits for alleged remaining period of services till the date of his superannuation.
(iii) As per the provision of Section 14(1)(c) of the Specific Relief Act, 1963, a contract which is determinable in nature cannot be specifically enforced. Since the service contract in the present case is determinable by one month's notice there does not arise the question of giving of any reliefs which tantamount to enforcement of a determinable contract. As per Section 14(1)(b), a contract of personal service cannot be enforced when the employer is not the Government or "State"as per Article 12 of the Constitution of India."
45. In S.S. Shetty vs. Bharat Nidhi Ltd it has been held by Hon'ble Supreme Court that:
"13. The position- as it obtains in the ordinary law of master and servant is quite clear. The master who wrongfully dismisses his servant is bound to pay him such damages as will compensate him for the wrong that he has sustained. "
They are to be assessed by reference to the amount earned in the service wrongfully terminated and the time likely to elapse before the servant obtains another post for which he is fitted. If the contract expressly provides that it is terminable upon, e.g., a month's notice, the damages will ordinarily be a month's wages.................. No compensation can be claimed in respect of the injury done to the servant's feelings by the circumstances of his dismissal, nor in respect of extra difficulty of finding work resulting from those circumstances. A servant who has been wrongfully dismissed must use diligence to seek another employment, and the fact that he has been offered a suitable post may be taken into account in assessing the damages." (Chitty on Contracts, 21st Ed., Vol. (2), p. 559 para. 1040)".
46. Rebutting the above contentions, it is argued by the CS DJ 381/2017
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Ld. Counsel for the Plaintiff that the Ld. Counsel for the Defendant has referred to words "Discussion this AM"
in the letter of termination dated 07.10.2016 (Ex.PW1/3) to show compliance of Principles of Natural Justice. However, no records of the minutes or any proceedings have been placed on record to establish the fact that there was any such discussion held before the illegal termination and even no tangible reasons have been given for not holding an inquiry.
47. It is further submitted that the Plaintiff has himself admitted the document dated 31.01.2014 annexed at page no. 125 of W.S in his affidavit of admission/denial of documents and also in his cross examination, however, the same in no way establishes the allegations leveled against the Plaintiff as the said document is merely a proposal submitted by the Plaintiff to his superior Major General AV Balakrishnan (Retired) without whose approval the said quote could not be approved and further the final approval was to be given by Ms. Mala Steffen (defendant no. 6). It is submitted that though plaintiff was terminated yet Maj. A.V. Balakrishnan who was the approving authority was retained. It is submitted the said document is dated 31.01.2014 and the Plaintiff is terminated on 07.10.2016 i.e. almost after 2 years 9 months. It is submitted that in between there was audit conducted twice and this issue CS DJ 381/2017
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was never raised and there is nothing on record to shows the relation between the said letter and the termination of the Plaintiff. It is submitted that during the entire cross examination of Plaintiff there is no question put to the Plaintiff qua the grant of contract to M/s Saifi Interiors Pvt. Ltd with regard to reasons for choosing the said contractor or to show favoritism as alleged etc, except one question on the authorship of the said document and thus the defendants have failed to establish the allegations leveled by them against the plaintiff. Had any such question been put to the plaintiff in his cross-examination, the plaintiff would have explained the reasons as for choosing a contractor not only financial consideration but technical consideration are also taken into account like infrastructure of the contractor, his turn over, his capability to execute the contract etc. But no such question was even put to him.
48. It is further submitted that there is no doubt that parties herein are governed by a private contract of employment and as per settled law and provisions of section 14 of Specific Relief Act, 1963 such contracts are determinable in nature and in case of mere wrongful termination the only relief can be the salary for agreed Notice Period. However, in the present case the Plaintiff not only claims a declaration that termination is wrongful CS DJ 381/2017
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because it was immediate and without notice but also because allegations of misconduct have been levelled against him which caused damage to reputation of the Plaintiff and for which neither any inquiry was conducted nor the same were proved.
49. In view of the arguments of the parties, to decide this issue this court shall examine the following points:
i). Whether in view of the judgments relied upon by the plaintiff, Principles of Natural Justice were required to be followed in the facts of the case.
ii). Whether the defendants were required to follow the Principles of Natural Justice as per the terms of clause 8 of the letter of appointment itself.
iii). Whether the defendant's in fact followed the Principles of Natural Justice before terminating the plaintiff.
iv). Whether the ground of termination/allegations of misconduct are proved in the present case.
50. The main grievance of the Plaintiff is that he has been illegally and maliciously terminated by levelling false allegations of misconduct, favouritism in awarding contracts, of taking kick backs, financial irregularities, mismanagement, syphoning etc., without complying with the Principles of Natural Justice and by doing so they have CS DJ 381/2017
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defamed the plaintiff and also caused mental stress and agony. The defence taken by the Defendant is that Principles of Natural Justice were complied with and termination was effected after confronting the Plaintiff with the documentary evidence against him and in accordance with Clause 8 of the "Officer cum appointment letter for Employment" date 18.04.2013.
51. Though the Ld. Counsel for the Defendant has argued and relied upon the documentary evidence Ex.PW1/3 to show that Principles of Natural Justice were complied with yet at the same time has controverted the judgments relied upon by the Plaintiff and argued that the said Judgments are not applicable in cases of private employment thus in effect and indirectly presenting that the defendants were not required to comply with the Principles of Natural Justice. Therefore, it becomes imperative to first examine whether the compliance of Principles of Natural Justice is required in the facts cases of the present case.
52. In my considered opinion, the defendants ought to have followed the principles of natural justice in the facts and circumstances of the present case and to hold this, I draw support from the judgments discussed above as well as the terms of the contract of employment i.e. Ex.PW1/2. I shall CS DJ 381/2017
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deal with the same separately as follows:
i). Whether in view of the judgments relied upon by the plaintiff, Principles of Natural Justice were required to be followed in the facts of the case.
The judgments A.K. Kripak vs. UOI, Dharampal Satyapal Limited Vs. Deputy Commissioner of Central Excise, Gauhati and Others and Kailash Chand Vs. DTC case (supra) related to the cases of public employment. However, no straight jacket formula has been laid down to ascertain the applicability of the Principles of Natural Justice to the facts of a particular case. The Hon'ble Court have not confined the applicability of Principles of Natural Justice to any particular category of cases. It has been held in the above judgments that Principles of Natural Justice operate in areas not covered by validly made laws. It has also been held that when a grievance is raised before the court that the Principles of Natural Justice are not complied with then the Courts have to examine whether in the facts of the case Principles of Natural Justice were to be followed or not. It has time and again been held that Principles of Natural Justice are a duty to act fairly and to ensure procedural fairness. Further, it has been held that merely because following of Principles of Natural Justice would not change the ultimate decision, the authorities would not have the liberty to jump the applicability of Principles of Natural Justice. Further, the Hon'ble Court in Dharampal CS DJ 381/2017
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Satyapal Limited Vs. Deputy Commissioner of Central Excise, Gauhati and Others has held that the Principles of Natural Justice would mean natural sense of what is right and wrong and the Hon'ble court has even termed it as "moral naturalism."
53. Not only this, in Kailash Chand v. DTC case (supra), the Hon'ble court had held that a probationer Civil Servant, had no right to the post as he is not confirmed and he can be terminated without any enquiry. Yet the court held that if the allegations are of misconduct etc, an order of termination would be bad, if it is without enquiry, as it is stigmatic and evil consequences will follow.
54. Similar is the case in hand where the plaintiff (though not a public servant) could have been terminated without enquiry had it been a termination simplicitor and the defendant would have been well within their rights; under the settled legal position to terminate the plaintiff without any enquiry and without complying with the Principles of Natural Justice. However, this case not being a case of termination simplicitor but founded on allegations of spyphoning, favouritism, mismanagement etc, defendants ought to have followed the Principles of Natural Justice as the plaintiff is stigmatized and he will live with this stigma all his life. His self esteem is lowered in his own eyes and he will carry this burden throughout his life. His right to dignified life is also CS DJ 381/2017
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affected as until he disproves these charges, they continue to be attached to him. Not only this, the possibility cannot be ruled out that the colleagues of the plaintiff and employees in the defendant's organization, would come to know of these allegations thereby affecting the future prospects of his career.
55. The defendants instead of invoking clause 7 of the employment contract Ex.PW1/2 and terminating the plaintiff simplicitor, chose to invoke clause 8 and to deprive the plaintiff of his right to compensation in lieu of notice period. Thus, it was incumbent upon the defendants to arrive at a decision of guilt of the plaintiff by acting fairly and by giving a hearing to the plaintiff.
56. Further in Private Employment generally contracts are determinable by fixing a particular notice period. At times, employees are terminated by immediate payment of compensation in lieu of notice. Therefore, there is very less security to the employees. Yet the employee poses trust in his employer that his employer will be fair with him and he will not be terminated wrongfully by leveling unfounded allegations. Thus even a private employer is required to act fairly and if not at least not to cause harm to the employee in any manner whatsoever.
57. It is also to be emphasized that the defendant has not brought the attention of this court to any judgment which hold that Principles of Natural Justice are not required to be CS DJ 381/2017
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followed in the cases of Pvt. Employment. The judgment relied upon by the Ld. Counsel for defendant to controvert the above issue are only to the effect that if the termination is illegal, the employment is entitled to damages and not the reinstatement.
58. Thus, I find support from the judgments discussed above to hold that in peculiar facts of the case before me, the defendant ought to have followed the Principles of Natural Justice.
59. ii). Whether the defendants were required to follow the Principles of Natural Justice as per the terms of clause 8 of the letter of appointment itself. A termination of service governed by contract of private employment is illegal, if it is in violation of the terms of contract.
60. A reading of clause 8 of the appointment letter makes it clear that the Management has to form an "opinion" that the employee is "guilty of" the acts stated therein.
61. The word "guilty" would mean that a person has been proved to have committed the act he is accused of. And to form an opinion of guilt there has to be some material, some evidence, some enquiry or atleast hearing to the employee. Thus, the Management is required by clause 8 to come to a conclusion of guilt of the accused, CS DJ 381/2017
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and if it so come to a conclusion then as per the clause the services can be terminated without serving one months notice as envisaged in clause 7 or giving compensation in lieu of notice.
62. In coming to the conclusion/ opinion of guilt the defendant could not have acted arbitrarily and unfairly and could not at its sweet Will terminated the services of the Plaintiff by just having a conception of misconduct of the Plaintiff, in its mind. Had it been so there would have been no need to include this clause in the Contract.
63. Thus, clause 8 casts a duty upon the Defendant to form an opinion of guilt as it has a penal consequence of depriving the Plaintiff of 1 months time to enable him to find an alternative employment or else to a salary of 1month to enable him to sustain himself during that period and could search for his new source of livelihood.
64. Thus, it is clear from the clause agreed between the parties themselves that fair play, justice and non arbitrariness was expected from the defendant.
65. Thus, it was imperative upon the defendant to first prima facie make its mind as to acts of alleged misconduct of the Plaintiff on the basis of some documents, complaint by colleagues or seniors of Plaintiff or other people in official dealing with him, thereafter to give notice of charges against the Plaintiff and to finally to hold an CS DJ 381/2017
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enquiry into those charges also affording Plaintiff an opportunity to explain the charges against him.
66. From the above it is also clear that clause 8 is not a case of simplicitor termination at the sweet will of the Defendant (employer) but there is a condition embodied in the said clause which is to be fulfilled before taking action. The defendants were at liberty to invoke clause 7 and terminate the plaintiff simplicitor, however, in the present case the defendant has chosen to give reason for termination wherein certain allegation have been made and the moment the Defendant choses to do so, he is bound by the Principles of Natural Justice as per the terms of the contract itself.
67. Having clarified that the Defendant was bound to follow the Principles of Natural Justice, I would next examine :
iii). Whether the defendant's in fact followed the Principles of Natural Justice before terminating the plaintiff.
The Ld. Counsel for the Defendant has drawn the attention of this court to the word "discussion this AM"
which find mention in e-mail dated 07.10.2016 (Ex. PW1/3).
68. The defendant has not brought on record any evidence to show that any discussions were carried out CS DJ 381/2017
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with the Plaintiff qua the evidence appearing against him, before terminating his services. No notice, no letter intimating him the time for discussion on the aspect, no minutes of meeting enquiring into the allegations against the Plaintiff or even a testimony of a witness testifying fact of such enquiry has not been brought on record. No document has been brought on record wherein the evidences against the plaintiff have been considered and the decision of the Guilt of the plaintiff was arrived at by the defendants. There is not even an iota of hint in the cross-examination to this effect and no question was put to the witness to show that he was confronted with any documents before his termination. No suggestion to this effect has also been made in his cross-examination. Writing and referring to some previous discussions in the termination email, in no way establishes that the hearing was given to the plaintiff. Thus, Defendant has failed to prove that the Plaintiff was confronted with the documentary evidence against him.
69. As far as enquiry, service of notice etc qua the allegations against the plaintiff is concerned, during the course of arguments, the Ld. counsel for the defendants has admitted that no such notice or enquiry was ever conducted. Thus it is clear that the Principles of Natural Justice were not followed by the defendants before terminating the plaintiff.
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70. iv). Whether the ground of termination/allegations of misconduct are proved in the present case. The next argument of the Ld. Counsel for defendant is that the termination is not illegal or wrongful as the allegations against the plaintiff are proved as the document itself speaks volumes of the mis-conduct of the Plaintiff as in the said documents it is clear that he has not accepted the lowest bid and he had admitted to be the author of the document in his cross-examination.
71. This Court does not agree with the contention of the Ld. Counsel as though the said document is admitted by plaintiff, yet in no way it establishes his guilt of favouring the contractor. A perusal of the said document shows that it is a mere proposal for approval submitted to his superior Maj. A.V. Balakrishnan (Retd) who has finally approved the same. Merely submitting a proposal would not in any way mean that the contract is awarded. Further, the plaintiff in his cross-examination has stated that the final approving authority was Ms. Mala Stefen which has not been contradicted in the cross-examination by Ld. Counsel for defendants. No question has been put to the witnes in his cross-examination as to why he preferred to chose M/s. Saifi Interiors Pvt. Ltd. The defendants have also not proved their allegations that M/s Saifi Interior Pvt. Ltd was also doing the renovation work of the house of the CS DJ 381/2017
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plaintiff. Question to this effect was put to PW1 in his cross-examination and the same was answered in the negative. Further the Ld. Counsel for defendant also failed to give any explanation to the contention of Ld. Counsel for the plaintiff as to why there was a two years nine months gap in terminating the plaintiff after the said proposal.
72. The defendant has also relied upon the document at page no. 119 of the W.S which has also been admitted to have been signed by the plaintiff in his cross-examination. However, the same also does not establish any guilt of the plaintiff as it is again only an opinion that certain on account payments should be released to the contractor named therein and the same is again to be approved by Maj. A.V Balakrishnan (Retd).
73. Ld. Counsel for defendant also failed to offer any explanation to the contentions of Ld. Counsel for the plaintiff as to why Maj. A.V. Balakrishnan who was the final approving authority not removed from service and why action was taken only against the plaintiff.
74. The other documents filed alongwith the W.S are merely the photocopies and some of them are neither signed nor dated. No secondary evidence of the same has CS DJ 381/2017
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been led by the defendants. Therefore, this court is not required to look into these documents.
75. In view of the above, it is held that the allegations leveled against the plaintiff are not proved by the defendants.
76. Thus in view of the above discussion, it is clear that the defendant ought to have followed the Principles of Natural Justice but have not followed the same. Further the defendants have failed to prove that the allegations leveled against the plaintiff. Thus in view of the foregoing discussions, relying upon the judgment discussed above, I hold that the termination of the plaintiff was illegal and wrongful. However, it cannot be declared that the termination was null and void as the consequence that would follow would be orders for reinstatement of the plaintiff which is neither claimed by the plaintiff nor can be granted in view of the law as settled in the various judgments by Hon'ble Courts that in case of contract of Pvt. Employment, the employee is not entitled to order of continuation in service and, therefore, the declaration that the termination was null and void, is declined.
77. As far as the contention of malicious termination is concerned, the plaintiff has also failed to prove the malice on the part of the defendant and no material has been brought on record to prove the said contention. Hence the termination cannot be declared to be malicious.
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78. Further, I do not consider it necessary to delve into the question whether the termination was without jurisdiction. I have already held above that termination was illegal and wrongful and even the consequence of holding the termination to be without jurisdiction would be that termination was illegal and wrongful. Further, neither any arguments have been made nor any evidence has been led to prove or to disprove the said issue and mere averments have been made.
79. The judgment in Dr. Vijayakumaran C.P.V vs Central University Of Kerala & Ors (supra) is not applicable to the facts of the case as in the instant case, no document containing stigmatic allegations is referred to in the termination letter dt 07.10.2016.
80. The issue no. 1 is accordingly decided and it is held that the termination of the plaintiff was illegal and wrongful.
81. ISSUE NO. ii:
If the issue no. 1 is decided in favour of the plaintiff, whether plaintiff is entitled for decree of damages? If yes, the quantum thereof? OPP The plaintiff has claimed damages clubbing his two cause of actions i.e. illegal termination and defamation. Damages to the tune of Rs. 25 lacs each has been claimed for the same.
82. Damages for illegal and wrongful termination CS DJ 381/2017
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It has already been held in Issue no. 1 above that the termination of the plaintiff was illegal and wrongful. This court has also observed how the defendant has violated the terms of the contract by not following the Principles of Natural Justice and has also failed to prove the allegations against the plaintiff.
83. It was argued by Ld. Counsel for plaintiff that the plaintiff could not procure a good employment for himself and the plaintiff is providing consultancy services and is able to earn a very meager income for himself. However, the plaintiff has not led any evidence to show that the plaintiff tried to procure alternative employment but could not procure the same or that he is not able to earn sufficiently from his consultancy work he has undertaken.
84. It is a settled law that in cases of contract of private employment, if the termination by the employer is illegal then the employee is entitled to damages for breach of contract. However, the damages have to be proved by the person alleging the breach. It is also settled law that in case the contract provides that the contract is determinable by serving notice for a particular period, damages to which the employee is entitled is to be the salary for the notice period.
85. In the present case since the parties have agreed as per clause 7 of the Appointment letter Ex.PW1/2 that the contract shall be determinable by serving one months notice, the CS DJ 381/2017
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plaintiff is only entitled to salary for one month. The plaintiff cannot be held to be entitled to the damages higher than one months salary. (Reliance is placed upon the judgments in S.S. Shetty vs. Bharat Nidhi Ltd, SDU Travels Pvt. Ltd Vs. Vipin Sharma and Naresh Kumar Vs. Hiroshi Maniwaand & Ors (supra)).
86. The case of the plaintiff is squarely covered by the judgments referred above and the plaintiff has not produced any evidence or any case law to the contrary to show that he is entitled to the amount of damages as he claims.
87. The plaintiff has filed on record the pay slips for the month of August and September, 2016 which are Ex. PW1/16 alongwith certificate u/s. 65-B of IEA, according to which the gross salary of the plaintiff was Rs. 2,65,455/-. The said salary slips though denied by the defendant in his affidavit of A/D of documents yet the defendant has not led any evidence to contradict the said salary slips or to show the exact salary of the plaintiff. In view of the same, the plaintiff is held entitled to Rs. 2,65,455/- as damages for wrongful and illegal termination of his service by the defendants. The defendants no. 1, 2, 3 and 4 are held jointly and severally liable to pay the same to the plaintiff. The defendants no. 1 to 4 are directed to pay the same within two months from the date of this order.
88. Damages for defamatory language used by defendant no. 6 and 7 CS DJ 381/2017
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A damages of Rs. 25 lacs have been claimed by the plaintiff for the defamatory language used by defendants no. 6 & 7. However, to ascertain whether the defendant no. 6 & 7 are liable to pay damages, it is first to be examined whether the defendant no. 6 & 7 have defamed the plaintiff.
89. It is submitted by Ld. Counsel for plaintiff that the defendants no. 6 & 7 have also intentionally harmed the reputation of the plaintiff and have defamed him and thus the plaintiff is entitled for damages for the defamation. Ld. Counsel for plaintiff has relied upon para 29 to 31 of the plaint in support of his contentions. The same are reiterated in para 2(xxiv) to 2(xxix) of this judgment. The Ld. Counsel has placed reliance upon a judgment cited as M.S. Ahluwalia Vs. Tehalka.com-2023 SCC Online Del 4275 to submit as to what acts constitute defamation.
90. It is further submitted that the defendants have denied the said allegations but have not led any evidence to controvert the allegations of defamation and have also not put any suggestions to the plaintiff on the averments of defamatory statement made in the plaint. It is submitted that where the defendants do not cross-examine a person on the affidavit and the contents of the suit, the same stands to be admitted especially when the defendant itself has chosen not to lead any evidence, therefore, adverse presumption is to be drawn against the defendants on the CS DJ 381/2017
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basis of the principles contained in illustration (g) of u/s. 114 of Indian Evidence Act, that the defendant no. 6 and 7 have defamed the plaintiff. It is further submitted that since the people before whom the defematory allegations were made were the employees of the defendants, it was difficult for the plaintiff to produce any evidence in this regard.
91. In support of his contentions, the plaintiff has relied upon the judgment in Iswar Bhai C. Patel Vs. Harihar Behera - 1993 (3) SCC 457.
92. Refuting the contentions of the plaintiff, it is submitted by Ld. Counsel for defendants that in a suit for damages for defamation, publication of the defamatory statement which has the effect of lowering the reputation of the person defamed, in the eyes of the right thinking members of the society is to be proved. However, the plaintiff has not led any evidence to prove the same and only had made a bald averments in the plaint. It is further submitted that no presumption can be drawn u/s. 114 of Indian Evidence Act as first the plaintiff has to stand on his own legs to prove his case and once that is done, it is only then that the defendant is required to rebut the same by leading evidence. It is further submitted that the general rule as to plead and proof is that one who pleads must prove and the only exception to this rule is when the pleadings are admitted by the adversary and as per order 18 Rule 1 CPC only once the defendant CS DJ 381/2017
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admits the fact pleaded by the plaintiff, the plaintiff is relieved from proving his case and the obligation will fall upon the defendant to plead his case first. It is submitted that since there is no admission on the part of defendants, the plaintiff had to prove his case for defamation first. Since the same was not done, there was no requirement for the defendant either to cross-examine the witness on the said aspect or to lead evidence to disprove the same.
93. In support of his contentions, Ld. Counsel for defendants has placed reliance upon the judgments - Sabiha Sultana And Ors vs. Ahmad Aziz and Ors- CS(OS)2958/2011 decided on 31.08.2017 passed by Hon'ble High Court of Delhi and Balakrishna Kar and Ors Vs. H.K. Mahatab-Civi Revn. No. 19 of 1954 passed by Hon'ble High Court of Orrisa.
94. Though averments are made in the plaint that the plaintiff was called as a 'Thief and a corrupt person" before the juniors and colleagues of the plaintiff by defendants no. 6 & 7 and the reply to the notice dt 22.11.2016 Ex.PW1/10 was pasted on the walls inside and outside the defendant's office and that the defendants no. 6 & 7 distributed the reply in their office, yet the plaintiff has not led any evidence to prove the above allegations.
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95. It is a settled law that for defamation, the one who alleges defamation has to prove the publication of a defamatory content. Mere averments in the plaint is not sufficient to hold that the plaintiff has been defamed.
96. This Court agrees with the contention of Ld. Counsel for defendant that unless the plaintiff proves his case and as long as the same are denied by the defendant in his W.S, the defendant is not required to lead any evidence to rebut the allegations unless and until the same are proved by the plaintiff. Further, the plaintiff has also alleged that the defendants have pasted the copy of reply dt 22.11.2016 upon the walls outside the building of the office of defendants and if that is so, it was not difficult for the plaintiff to prove the same. To hold so, I find support from the judgment - Balakrishna Kar and Ors Vs. H.K. Mahatab-Civi Revn. No. 19 of 1954, wherein it has been held by Hon'ble High Court of Orissa as under:
"3. The lower Court appears to have made a confusion between the right to begin and the proof required in support of the plaintiff's case. It may be that the defendant has admitted the publication of the articles but it cannot be stated that he admitted that the articles constituted a libel on the character of the plaintiff. That the plaintiff has a reputation which could be damaged by the alleged libellous writing or that it has been so damaged as to justify the claim is a matter peculiarly within the knowledge of the plaintiff and has to be established by him. Sections 101, 102 and 103, Evidence Act, lay down the rules to be followed in determining on whom the onus lies of proving a particular fact. The allegations essential for the support of a party's case may be negative in form but affirmative in essence. The plaintiff who complains of an CS DJ 381/2017
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attack upon his character or reputation has, in the first place, however cleverly he may frame his allegations in the plaint, to make out that he had a reputation which had been damaged by the writing complained against. The true rule in such cases is laid down in Ameer Ali's commentary on this bunch of sections to the following effect:
"When the issue raised by the Court is in substance whether the plaintiff's or defendant's story is true, it is possible that neither of the stories may be true. The question, then, arises which of the two alternative issues is the really material one. So the really material one is the first of the issues -- is the plaintiff's story true?"
If this rule is applied as the proper test to the facts of the present case the Court has before it two alternative stories:
firstly, that the plaintiff "had a reputation which has been damaged giving him a right to recover damages; but as against this the defendant claims privilege, fair comment, and justification by truth, Neither of these versions may ultimately be found to be true. In such a situation, it would clearly be the duty of the plaintiff to prove, in the first instance, that his story is true.
4. Another point which the Court below has missed is that the defence is substantially an argumentative traverse of the truth of the plaintiff's story and cannot be taken to be an admission of any of the plaint allegations, constituting defamation of the plaintiff's character. The only fact that may be regarded as having been admitted is that the defendants are respectively the editor and publisher of the journal in which the impugned articles appeared. But it cannot be taken to have been admitted in the pleading that they constitute a libel on the plaintiff's character. In these circumstances the onus lies on the plaintiff affirmatively to establish his case, as set out in the first two issues; otherwise he must fail and in that event, it is open to the defendant to say:
"I need not prove the truth of my defence as the plaintiff has not proved his."
97. The judgment in Iswar Bhai C. Patel Vs. Harihar Behera - 1993 (3) SCC 457 is therefore, of no assistance to CS DJ 381/2017
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the plaintiff.
98. The judgment in Nannu Mal Vs. Ram Prasad-
decided on 19.02.1926 passed by Hon'ble High Court of Allahabad and Brijlal Prasad Ramcharan Sharma Vs. Laldas Guru Gautamdas Bairagee-Decided on 14.08.1939 passed by Hon'ble High Court of Nagpur relied upon by Ld. Counsel for defendants are of no assistance to the defendant as in the present case specific averments qua defamation have been made in the plaint.
99. In view of the above discussion, since the defamation is not proved, the plaintiff is not entitled to any damages for defamation.
Issue no. 2 is accordingly decided.
100. ISSUE NO. iii:
If the issue no.2 is decided in favour of the plaintiff, whether plaintiff is entitled to interest on the said damages? If yes, the rate and the period for the same? OPP In view of the findings in issue no. 2 above, the plaintiff is held entitled to interest on damages awarded in issue no. 2. Since the plaintiff would have been entitled to one month salary immediately on the date of termination of his service i.e. on 07.10.2016, therefore, interest @ 9% per annum is awarded to the plaintiff w.e.f. 07.10.2016 till the date of CS DJ 381/2017
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realization. If the payment of damages awarded in favour of plaintiff is not made within two months as directed, the interest shall be payable @ 12% p.a. Issue no. 3 is accordingly decided.
101. ISSUE NO. iv:
Whether the plaintiff is entitled to damages on account of mental stress, emotional trauma and harassment on account of his illegal termination and consequential unemployment? If yes, quantum thereof? OPP As far as the claim for damages for mental stress, trauma etc on account of illegal termination is concerned, the same is in the teeth of the judgment in S.S. Shetty vs. Bharat Nidhi Ltd, SDU Travels Pvt. Ltd Vs. Vipin Sharma and Naresh Kumar Vs. Hiroshi Maniwa and & Ors (supra), wherein it was held that in cases of contract of private employment, no compensation can be claimed in respect of the injury done to the servant's feelings by the circumstances of his dismissal nor in respect of extra difficulty of finding work resulting from those circumstances.
102. In Naresh Kumar Vs. Hiroshi Maniwaand & Ors (supra) it was held that :.
"7. ....... Finally, while on this aspect it is noted that if there is an illegal termination, and the remedy as per the law is the three months salary in lieu of the period of notice, then, for such aspect there cannot be a claim CS DJ 381/2017
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in law with respect to damages on the ground of mental agony and distress in as much as by law the monetary benefits are limited to the notice period of termination."
103. Further, no evidence has been led on behalf of the plaintiff on the said issue and no arguments or submissions qua the said relief have been made before this court. Thus, the claim of the plaintiff for damages for mental stress, trauma etc on account of illegal termination is declined.
Issue no. 4 is accordingly decided.
104. Issue no. v.
Whether the plaintiff is entitled to mandatory injunction as sought in prayer clause (d)? OPP The plaintiff has prayed for mandatory injunction seeking directions to defendants no. 2, 6 & 7:
a). For the payment of his dues to which he is entitled.
105. Apart from claiming the said relief, there is neither any pleading to this effect nor the plaintiff has elaborated either in his plaint, his evidence or his arguments as to what were his entitlements of which he was deprived and what was the amount of these entitlements.
A mere averment is made in the plaint that he was terminated without full and final settlement. In view of the same, no direction can be issued to the defendant directing him to make any payment to the plaintiff on account of unpaid CS DJ 381/2017
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entitlement and relief prayed is declined. However, the plaintiff is at liberty to approach the defendant for the full and final settlement of his dues, if any.
b). for publishing an apology to plaintiff in one Hindi and one English Newspaper for the defamatory language used against the plaintiff.
106. The plaintiff has also prayed that the defendant be directed to issue apology to plaintiff in one Hindi and one English Newspaper for the defamatory language used against the plaintiff. However, I have already observed in issue no. 2 above that the plaintiff has failed to prove the allegations of defamation, hence the question of issuing apology in newspaper to undo the harm does not arise. Hence the present prayer can also be not granted to the plaintiff. The said relief is accordingly declined.
This is accordingly decided against the plaintiff.
107. ISSUE NO. vi & vii:
vi) Whether the suit of the plaintiff suffers from concealment of material facts? OPD1 to 5.
vii)Whether the plaintiff has not approached the Court with clean hands? OPD1 to 5.
The burden to prove these issues was on defendant no 1 to 5. It is averred by Ld. Counsel for defendants that the plaintiff has concealed abouts his misdeeds in the organization and has not mentioned the same in the plaint, however, I have CS DJ 381/2017
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already observed in issue no. 1 above that the defendant has failed to prove the allegations of misconduct, syphoning, favouratism etc against the plaintiff. Thus the defendant had failed to show and prove any material facts that have been concealed by the plaintiff or that the plaintiff has not come to the Court with clean hands.
108. Issue no. 6 & 7 are accordingly decided against the defendant and in favour of plaintiff.
109. Issue No. viii:
Whether the suit is bad for misjoinder/non-joinder of parties in view of preliminary objections no. 4? OPD1 to 5 No arguments and submissions have been made on this issue by the parties before this court. There is nothing on record to enable this court to decide this issue. Even otherwise, the findings on this issue do not impact the present proceedings in view of the provisions of order 1 Rule 9 R/w section 99 CPC.
110. In view of the same, no findings are required on this issue.
111. Relief:
In view of the above findings on the issues, the suit stands partly decreed.
112. One time costs of Rs. 1,40,550/- (including Court Fee, Litigation Expenses and fee of the Ld. Local Commissioner CS DJ 381/2017
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for recording of evidence) is also awarded in favour of plaintiff.
113. Decree sheet be drawn accordingly. File be consigned to Record Room.
Announced in the open Court on 31.01.2024.
(GUNJAN GUPTA) Additional District Judge-04 (SE), District Courts, Saket, New Delhi CS DJ 381/2017