Delhi District Court
Vivek Garg vs M/S. Fontus Water Limited on 23 February, 2015
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IN THE COURT OF MS. NAVITA KUMARI BAGHA, ADJ01 (SOUTH),
SAKET COURTS, NEW DELHI
CS No.534/13/10
Unique Case ID No.02406C0301662010
Vivek Garg
S/o Sh. S.N.R. Garg
R/o 16/265, Vasundhara,
Ghaziabad (U.P.)
................... Plaintiff
Vs.
1. M/s. Fontus Water Limited
To be represented by Managing
Director/Director/Principal Officer
of the company.
2. Sh. Sunil Ghorawat
Managing Director
M/s. Fontus Water Limited
A1/152, Neb Sarai, IGNOU Road,
New Delhi110068.
.................. Defendants
Date of Institution : 13.09.2010
Date of reserving order : 10.02.2015
Date of pronouncement of judgment : 23.02.2015
Suit for compensation and damages for recovery of ₹ 11,02,000/ with
pendentelite and future interest @10% per annum
J U D G M E N T
CS No.534/13/10 Vivek Garg Vs. M/s. Fontus Water Ltd. & Anr.
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1. The present suit was filed by the plaintiff against the defendants on 10.09.2010. The brief facts of the suit as narrated in the Plaint are as follows: "The defendant no.1 is a limited company and defendant no.2 is its Managing Director. After tracking the resume of the plaintiff through a job portal, the defendants approached the plaintiff and after his interview at the Corporate Office of defendant no.1, the plaintiff was offered the position of VicePresident Group Financial Controller vide letter bearing no. HRDOL01(00) dated 18.08.2008 at a salary of ₹12,00,000/ (Rupees Twelve Lakhs only) per annum along with performance linked bonus/incentives over and above the aforesaid salary. In the said letter the defendants had asked the plaintiff to furnish his relieving certificate from his last employer. But the plaintiff was not at all aware of the fraud and scheme played by defendants that the registration letter was called in order to make sure that the plaintiff would absolutely have no chance of his returning back to his previous organization. The defendants changed the plaintiff's position from 'VicePresident Group Financial Controller' to 'VicePresident Finance and HR' and decreased his salary from ₹12 Lakhs per annum to ₹10,00,000/ (Rupees Ten Lakhs only) per annum bifurcating it with ₹2,00,000/ as assured/fixed incentives for the first year CS No.534/13/10 Vivek Garg Vs. M/s. Fontus Water Ltd. & Anr.
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to be paid at the end of 31.08.2009, whereas the said assured/fixed incentive was over and above the salary initially offered to the plaintiff vide letter dated 18.08.2008 . The entire act of changing the position and reducing the salary of the plaintiff was totally illegal and unilateral, without any notice/information and consent of the plaintiff. Not only the salary of plaintiff was reduced but the additional responsibility of HR was burdened upon him. When the plaintiff asked the defendants as to why the defendants had changed his position and salary, he was told by them that they would fulfill their commitments and compensate him by giving incentives, bonus, etc. Though the plaintiff, in the forced circumstances under additional burden of responsibilities, was serving the defendants with his entire dedication and honesty, but on one fine day on 08.10.2009, he was forced to leave the defendant no.1 and was asked to give his resignation as he had been again and again asking for his legal dues as assured and promised by the defendants. The plaintiff was forced to resign without giving any notice by the defendants which is a precondition and therefore, one month's salary is required to be given to plaintiff by defendants. Due to the illegal and unlawful acts of the defendants, the plaintiff was constrained to issue a letter dated 09.12.2009 to the defendants. The defendants have CS No.534/13/10 Vivek Garg Vs. M/s. Fontus Water Ltd. & Anr.
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caused various damages to the plaintiff on various accounts for which he has claimed ₹3.00 Lacs for the additional responsibility, ₹50,000/ for payment for Earned Leave of 15 days, ₹2.00 Lacs as the differential of ₹10,00,000/ and ₹12,00,000/, ₹2.00 Lacs as his assured/fixed annual Incentives, ₹83,500/ as variable deductions, ₹1,00,000/ as salary of one month for the notice period and ₹1,68,030/ as Interest @18% p.a. Since the defendants were not paying the abovesaid dues/damages to the plaintiff, he was left with no option but to send a legal notice dated 08.07.2010 through his counsel. But despite service of the said notice, the defendants failed to comply with it. Hence, the present suit."
2. After service of summons, the defendant no.1 filed Written Statement on 06.12.2010 whereas the defendant no.2 filed an application U/O.1 R.10 CPC for deletion of his name from the array of parties on the ground that there was no privity of contract between him and the plaintiff. Vide order dated 21.03.2011, the Ld. Predecessor Court disposed of the said application by stating that no decree shall be passed against him if, it is found that he is not liable to pay the damages to the plaintiff. In the Written Statement, the defendant no.1 has raised the objection that plaintiff has wrongly impleaded defendant no.2 whereas he is neither a CS No.534/13/10 Vivek Garg Vs. M/s. Fontus Water Ltd. & Anr.
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necessary nor a proper party. It has further stated that the plaintiff has not approached the Court with clean hands as he has failed to disclose vital documents viz. Letter of Appointment, Contract of Employment executed between the plaintiff and the defendant no.1 and the warning note, issued by defendant no.1 to the plaintiff. It is further submitted that neither during the course of his employment nor contemporaneous with his resignation, the plaintiff had ever raised any issue either about his change in designation or about the monthly salary being paid to him. It is further submitted that plaintiff has also never raised any issue regarding the final payment made to him, which was in excess of his entitlement and that the claims raised by the plaintiff are frivolous and without any basis but clearly an afterthought to blackmail the defendant no.1 for extorting money. It is submitted that the plaintiff had approached the defendant no.1 by forwarding his resume and assured the defendant no.1 about his capabilities and represented that due to his vast experience and knowledge of over 20 years, he was ideally suited candidate for the job offered by the defendant no.1. The defendant no.1 has denied that it had ever issued letter dated 18.08.2008. It has stated that the plaintiff was appointed as 'Vice President Finance and HR' by the defendant no.1 with effect from 01.09.2008 and a Letter of Appointment dated 01.09.2008 was issued to the plaintiff by defendant no.1 which was duly accepted by the plaintiff by counter CS No.534/13/10 Vivek Garg Vs. M/s. Fontus Water Ltd. & Anr.
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signing it. It is further stated that simultaneously, with the issuance of Letter of Appointment and its acceptance by the plaintiff, the plaintiff had also signed and executed a Contract of Employment with defendant no.1, which contained all the terms and conditions of employment. It is further stated that the said contract was determinable in nature and at the time of termination of such contract, the plaintiff had even accepted the full and final payment/settlement of his dues. It is further stated that in the Letter of Appointment dated 01.09.2008, the salary as well as emoluments were clearly mentioned and that the plaintiff had accepted the salary for more than 12 months without any demur. It is further submitted that during the course of employment, the plaintiff was found lacking and incapable of handling responsibilities on several occasions and it was in this background that he approached and requested the defendant no.1 for relieving some of his responsibilities and accordingly the responsibility of Incharge, HR was reduced. It is further stated that it was a term of Contract of Employment and Letter of Appointment that the plaintiff was initially on probation for a period of six months which could have been extended for a further period of six months and in the event of his leaving job during probation period, he was required to give only 15 days' notice. It is further submitted that the period of probation of plaintiff was extended for a further period of six months as his CS No.534/13/10 Vivek Garg Vs. M/s. Fontus Water Ltd. & Anr.
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performance was found to be unsatisfactory and that he was never issued a Confirmation Letter as per the practice. It is further submitted that at the end of such extended period, the plaintiff decided to resign due to his inability to perform and tendered his resignation and that he was paid 15 days' salary in lieu of notice period even though he was not entitled to it. It is further submitted that the incentive was based on performance and not payable as a matter of right and that since the performance of the plaintiff was far from satisfactory (for which several verbal warnings were given before issuance of written warning), so question of payment of incentive to him did not arise. It is further submitted that the plaintiff was neither able to handle the responsibilities attached to his job nor was discharging his duties effectively and efficiently and having realized that his services might be terminated, he tendered his resignation on 08.10.2009 and after completion of formalities and pursuant to plaintiff's email dated 10.11.2009, the defendant no.1 made payment of full and final settlement amount of ₹38,211/ vide cheque no.113488 dated 09.11.2009 by depositing the same in his HDFC Bank account which the plaintiff accepted and never objected to. It is further submitted that upon receipt of the said amount, the contract of employment between him and defendant no.1 has stood duly discharged and now plaintiff is estopped from raising any demand towards incentives, earned leave, etc. and that CS No.534/13/10 Vivek Garg Vs. M/s. Fontus Water Ltd. & Anr.
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the present suit is an abuse of the process and is liable to be dismissed with exemplary costs.
3. The plaintiff has filed Replication to Written Statement of the defendant no.1 wherein he has denied almost all the averments of the defendant no.1 and reiterated and reaffirmed contents of his Plaint. It is submitted in the Replication that before the Appointment Letter, the defendants had issued Offer Letter to the plaintiff which was sent by email and in this letter salary of ₹12 lacs was offered to the plaintiff. It is further submitted that the defendants are trying to mislead the Court by raising the bogey of full and final settlement as the plaintiff had never signed any paper or document with regard to acceptance of full and final settlement. The plaintiff has denied the issuance of any warning letter to him. He has denied that he was found lacking and incapable of handling his responsibilities.
4. After the completion of pleadings, the following issues were framed by the Ld. Predecessor Court vide order dated 21.03.2011:
1. Whether the plaintiff is entitled to any compensation and damages from the defendant, if so to what extent? OPP
2. Whether the present suit is bad for misjoinder of defendant no.2? OPP CS No.534/13/10 Vivek Garg Vs. M/s. Fontus Water Ltd. & Anr.
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3. Whether the plaintiff has no cause of action to file the present suit? OPP
4. Relief.
5. In plaintiff's evidence, the plaintiff has examined himself as one and the only witness i.e. PW1. PW1 in his affidavit in evidence i.e. Ex.PW1/A has deposed on the similar lines as of his Plaint. While reiterating his submissions made in the Plaint, he, in order to prove his case, has exhibited the following documents:
(i) Ex.1 - Offer Letter no. HRDOL01(00) dated 18.08.2008, received by plaintiff from Mr. Gunjan Chaturvedi, Senior Manager, HR & Admin., Earth Water Group.
(ii) Ex.2 - Appointment Letter dated 01.09.2008, issued by defendant no.1 to plaintiff.
(iii) Ex.3 - Contract of Employment dated 01.09.2008, executed between defendant no.1 and the plaintiff.
(iv) Ex.4 - Warning Letter dated 15.11.2008, issued by defendant no.1 to plaintiff. But plaintiff has denied the issuance of this letter.
(v) Ex.5 - Resignation Letter dated 08.10.2009 of the plaintiff.
(vi) Ex.6 - Emails exchanged between plaintiff and Ms. Amrita, employee of defendant no.1.
(vii) Ex.7 - Plaintiff's representation given to Chairman of CS No.534/13/10 Vivek Garg Vs. M/s. Fontus Water Ltd. & Anr.
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defendant no.1.
(viii) Ex.8 - Plaintiff's representation give to defendant no.2.
(ix) Ex.9 - Legal notice dated 08.07.2010, sent by plaintiff through his advocate.
6. In defendants' evidence, the defendants have examined Ms. Hemika Batalvi, General Manager - Human Resources of defendant no.1, as one and the only witness i.e. DW1. The DW1 in her affidavit in evidence i.e. DW1/A has deposed on the similar lines as of the Written Statement of defendant no.1. While reiterating the submissions made in the Written Statement, she, in order to prove the defence, has exhibited the following documents:
(i) Ex.DW1/1 - Copy of Board Resolution dated 20.09.2012 authorizing her to depose on behalf of defendant no.1.
(ii) Ex.DW1/2 - Appointment Letter dated 01.09.2008.
(iii) Ex.DW1/3 - Resignation Letter dated 08.10.2009 of the plaintiff.
(iv) Ex.DW1/4 - Email dated 10.11.2009 of the plaintiff, sent to Ms. Amrtia, employee of defendant no.1, wherein he gave his bank account number and requested to send the full and final settlement amount to said bank account.
(v) Ex.DW1/5 - Reply of defendant no.1 dated 30.08.2010 of the legal notice of plaintiff.
CS No.534/13/10 Vivek Garg Vs. M/s. Fontus Water Ltd. & Anr.
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(vi) Ex.DW1/6 - Undelivered returned envelope containing reply of defendant no.1.
7. I have heard the final arguments from counsel Sh. S.K. Sharma for plaintiff but no arguments were addressed on behalf of defendants despite grant of a number of opportunities. However, written arguments were filed on their behalf. Even the plaintiff has also filed written arguments. I have gone through the written arguments of both the parties and perused the record.
My issuewise findings are as under: I have found it appropriate to deal with Issue No.2 prior to dealing with Issue No.1. So, accordingly this issue is taken up first for consideration.
ISSUE NO.2 Whether the present suit is bad for misjoinder of defendant no.2?
8. The onus to prove this issue was upon the plaintiff. The case of the plaintiff is that he was employed by defendant no.1 but he was not paid his dues after he was forced to resign from the job. The defendant no.2 is the Managing Director of defendant no.1, who had issued Appointment Letter Ex.2 and executed Contract of Employment Ex.3 on behalf of the defendant no.1 and also CS No.534/13/10 Vivek Garg Vs. M/s. Fontus Water Ltd. & Anr.
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accepted the resignation of plaintiff as MD of defendant no.1. Thus all these acts were performed by him in his official capacity. The plaintiff has failed to lead any evidence to prove how defendant no. 2 could be held personally liable for the acts performed by him while doing his official duty. The entire case of the plaintiff is that he has not been given the dues after his resigning from the job of defendant. Thus the relief sought by plaintiff pertains to defendant no.1 only and the defendant no.2 could not be made personally liable for it. Hence, it is held that the defendant no.2 is neither a necessary nor a proper party for the present suit and hence the suit is bad for misjoinder of defendant no.2. Accordingly, this issue is decided in favour of the defendants and against the plaintiff. ISSUE NO.1 & 3.
1. Whether the plaintiff is entitled to any compensation and damages from the defendant if so to what extent?
3. Whether the plaintiff has no cause of action to file the present suit?
9. Since these issues are interconnected, so they are taken up jointly for consideration. The onus to prove these issues was upon the plaintiff. The present suit has been filed by the plaintiff for claiming the following damages:
(i) ₹3,00,000/ for the additional responsibility of HR. CS No.534/13/10 Vivek Garg Vs. M/s. Fontus Water Ltd. & Anr.
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(ii) ₹50,000/ towards payment of 15 days' Earned Leave.
(iii) ₹2,00,000/ as the differential of ₹10,00,000/ and ₹12,00,000/ (offered by letter dated 18.08.2010)
(iv) ₹2,00,000/ as assured/fixed annual incentive.
(v) ₹83,500/ as variable deductions for total period of January, 2009 to October, 2009.
(vi) ₹1,00,000/ towards salary of one month for the notice period.
(vii) ₹1,68,030/ towards interest @18% p.a. Total ₹11,01,530/
10. Regarding the first head of damages i.e. ₹3 lacs for the additional responsibility, the plaintiff/PW1 has deposed that he had received an offer letter dated 18.08.2008 i.e. Ex.1 from Mr. Gunjan Chaturvedi, Senior Manager, HR & Admin., Earth Water Group wherein he was offered the post of VicePresident (Finance) at the salary of ₹12 lacs per annum, but later on he was given the additional responsibility of Human Resource Department also vide Appointment letter Ex.2, whereas his salary was reduced from ₹12 lacs per annum to ₹10 lacs per annum. But the defendant no.1 has denied that the letter Ex.1 was ever issued by it to the plaintiff. CS No.534/13/10 Vivek Garg Vs. M/s. Fontus Water Ltd. & Anr.
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Defendant no.1 has stated in the Written Statement that neither the said letter is on its letterhead nor bearing any signature. In the Replication, the plaintiff has stated that the said Offer Letter was sent to him by email. But he has failed to prove the said letter as per the provisions of the Indian Evidence Act, 1872. Sec.65B of Indian Evidence Act deals with the admissibility of the electronic record. It starts with a nonobstante clause and thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under Subsection (2) of Sec.65B are satisfied. It has been held by the Hon'ble Supreme Court of India in & Ors.
case titled as Anvar P.V. Vs. P.K. Basheer , Civil Appeal No.4226 of 2012, decided on 18.09.2014, "Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. ............... The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2)."
CS No.534/13/10 Vivek Garg Vs. M/s. Fontus Water Ltd. & Anr.
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It is further held by the Apex Court that the proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act and that the very caption of Sec.65A of the Evidence Act, read with Secs.59 & 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Sec.65B of the Evidence Act. It is further held that Sec.65B is a complete code in itself and thus being a special law, the general law under Secs.63 & 65 has to yield. Thus an electronic record can be proved only in accordance with the procedure prescribed under Sec.65B of the Indian Evidence Act, failing which the document remains inadmissible in evidence. In the present case, the plaintiff has stated that the Offer Letter dated 18.08.2008 i.e. Ex.1 was received by him through email. Thus he was required to prove it as per the procedure laid down in Sec.65B Indian Evidence Act. But he has utterly failed to do so. He has not filed any certificate under Sec.65B Indian Evidence Act and has failed to prove the said letter as per Sec.65B. Thus this document is inadmissible in evidence and could not be read into evidence. Otherwise also as per the terms and conditions of Appointment Letter Ex.2 and Contract of Employment Ex.3, the abovesaid Offer Letter has stood superseded by these two documents. The plaintiff has admitted these two documents and his signatures on them. CS No.534/13/10 Vivek Garg Vs. M/s. Fontus Water Ltd. & Anr.
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Thus the Offer Letter is of no use for the plaintiff. The plaintiff/PW1 has duly admitted in his crossexamination that he had signed the Contract of Employment accepting the position of additional responsibility of Human Resource Department and that he was not forced by anyone to sign the same. Thus it is clear from the aforesaid that the plaintiff has failed to prove that defendant no.1 had initially offered him post of VicePresident (Finance) at the salary of ₹12 lacs per annum but later on assigned him additional responsibility of HR Department also while reducing his salary to ₹10 lacs per annum. Hence, he is held not entitled to ₹3 lacs for the additional responsibility.
11. Now regarding the second head i.e. claim of ₹50,000/ towards payment of E.L. (Earned Leave) of 15 days, the plaintiff has failed to lead any evidence. He has not proved on record that he was entitled to any E.L. or that any E.L. had accrued to his account or that he had not availed or encashed that leave earlier. So, in the absence of any evidence on this point, no amount could be awarded in favour of plaintiff towards encashment of E.L.
12. Under the third head, the plaintiff has claimed ₹2 lacs as the differential of ₹12 lacs (offered vide Offer Letter dated 18.08.2008 i.e. Ex.1) and ₹10 lacs (offered vide Appointment Letter Ex.2). But as held earlier, the plaintiff has failed to prove the Offer Letter dated CS No.534/13/10 Vivek Garg Vs. M/s. Fontus Water Ltd. & Anr.
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18.08.2008 but has admitted the Appointment Letter Ex.2 as well as the signing of Contract of Employment Ex.3 without any force as per which he was offered the salary of ₹10 lacs. Thus the question of differential amount does not arise and hence the same is declined.
13. Under the next head, the plaintiff has claimed ₹2 lacs as his assured/fixed annual incentive. The counsel for the plaintiff has argued that the plaintiff was offered ₹2 lacs as assured/fixed annual incentive which was to be paid on 31.08.2009. But the record speaks something else. It is categorically mentioned in Offer Letter as well as Appointment Letter that "performance linked"
bonus/incentives would be given by defendant no.1. The case of the defendant no.1 is that the plaintiff was incapable of handling the responsibilities of his job and therefore his probation period was extended and that he was given oral as well as written warnings due to his unsatisfactory performance and thus the question of payment of performance linked incentive to him does not arise. The DW1 has categorically deposed in para 12 of her affidavit of evidence i.e. Ex.DW1/A as follows: "The performance of the plaintiff was far from satisfactory and considering his position and seniority in the organization, the plaintiff was CS No.534/13/10 Vivek Garg Vs. M/s. Fontus Water Ltd. & Anr. Page 18 of 23
given several verbal warnings before being issued written warning on 15.11.2008 which clearly shows that the plaintiff was not only inefficient but was also found lacking in performing his duties........... Therefore, payment of incentive, if any, which was linked to his performance does not and cannot arise."
But despite her categorical deposition, she was not crossexamined on this point. It is settled law that if the opposite party fails to cross examine a witness on a certain point, then the said party is deemed to have accepted the same as true. It is held by Hon'ble Supreme Court in Sarwan Singh Vs. State of Punjab, AIR 2002 SC 3652, "It is a rule of essential justice that whenever opponent has declined to avail himself of the opportunity to put his case in crossexamination, it must follow that evidence tendered on that issue ought to be accepted."
It is also held by Hon'ble High Court of Delhi in Satyendra Kumar Sharma Vs. Jitender Kudsia, 2005 DLT 498, "Section 137 and 138 of Evidence Act Cross examination - If a witness is not crossexamined CS No.534/13/10 Vivek Garg Vs. M/s. Fontus Water Ltd. & Anr.
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on a particular point, the opposite party must be deemed to have accepted truth of the statement." Similarly in the present case in the absence of any cross examination it is deemed to be accepted that the performance of the plaintiff was unsatisfactory. Hence, it is held that the performance of plaintiff was not satisfactory and therefore, he is not entitled to performance linked incentive of ₹2 lacs.
14. Next, the plaintiff has claimed ₹83,500/ as variable deductions for total period of Jan, 2009 to Oct, 2009. But he has utterly failed to prove that when, on what account and how much deductions were made. He has failed to produce/prove any document viz. Salary Slip, etc. related to such deductions. Hence, the amount claimed could not be awarded and accordingly declined.
15. Then the plaintiff has claimed ₹1 lac as salary of one month for the notice period. As per Clause 2(a) of the Standard Conditions of Employment Contracts (which is part of Contract of Employment i.e. Ex.3), either party can terminate the employment by giving 15 days' notice during the period of probation and 30 days' notice after confirmation. The case of the defendant no.1 is that the plaintiff was not a confirmed employee as his probation was extended for further six months on account of his unsatisfactory performance. The defendant no.1 had categorically stated so in Para 9(g) of the CS No.534/13/10 Vivek Garg Vs. M/s. Fontus Water Ltd. & Anr.
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Preliminary Objections of its Written Statement and the same was not denied by the plaintiff in his Replication while replying to the said para. Otherwise also, plaintiff has not alleged or proved any confirmation letter issued to him by defendant no.1. Thus, it is clear that he was on probation when he left the job and thus the requirement was of notice of 15 days only. The plaintiff would have become entitled to notice pay of 15 days, had he been terminated by the defendant no.1 without any notice of 15 days. But here it is admitted case that he was not terminated rather he had resigned from the job. His case is that he was forced to resign. But if that was the case, then why he did not raise this issue before the higher authorities and kept mum till 06.03.2010 when he wrote letter to Director of defendant no.1? It is pertinent to mention here that even in this letter his main concern is not raising any objection against forced resignation, rather his concern is for getting his accounts settled. Now even if it is presumed that he was forced to resign which amounts to his termination, it is settled law that in private employment, where there is no fixed period of employment, there case be termination simplicitor. It is the admitted case of the plaintiff that defendant no.1 is a private limited company and present is a case of contractual and private employment. It is settled law that wherever parties are governed by contractual rights and obligations i.e. the employment is purely contractual i.e. not being under the CS No.534/13/10 Vivek Garg Vs. M/s. Fontus Water Ltd. & Anr.
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Government or "State" under Art.12 of the Constitution of India, the contractual employment can always be terminated in terms of the contract. Thus in case of private employment if there is contract between the employer and employees that the services of the employees could be terminated by giving notice, then the employer is entitled to terminate the services by giving notice as per the contract. It has been held by Hon'ble High Court of Delhi in Satya Narain Garg Vs. DCM Ltd., RFA No.556/02, decided on 05.12.2011, "In case of private employment, the employers are fully justified in taking steps for termination of services, if it finds that the employee is not upto the mark. Principles applicable in public law domain do not apply with respect to employees in private employment. Employment in private sector is governed by the terms and conditions of employment, and unless the termination is shown to be violation of the terms and conditions of employment, it cannot be said that the termination is illegal. In the present case, in my opinion, since there was no fixed period of employment so far as the deceased plaintiff is concerned, the deceased plaintiff could have been terminated from services even by a simplicitor notice, assuming even if the CS No.534/13/10 Vivek Garg Vs. M/s. Fontus Water Ltd. & Anr.
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services of the deceased plaintiff were upto the mark."
It has been further held in the abovesaid case that in private employment, in fact there need not be any valid reason for termination and where there is no fixed period of employment there can be termination simplicitor. Admittedly, in the present case, there was no fixed period of employment, rather as per Clause 2(a) of the Standard Conditions of Employment Contracts, forming part of Contract of Employment Ex.3, the service of plaintiff could have been terminated by giving notice of 15 days. Though no such notice has been given in the present case, but it is the case of the defendant no.1 that it had paid the salary of said 15 days to the plaintiff, though he was not entitled to the same. The defendant no. 1 has stated so categorically in Para 9(k) of the Preliminary Objections of Written Statement and the same has not been denied by the plaintiff while replying to the said para in Replication. It is pertinent to mention here that a suggestion was also given to the DW1, during her crossexamination, that the plaintiff was paid salary for 15 days' notice period. Thus, the plaintiff has admitted that he was paid the salary for the notice period of 15 days. Hence, now he could not claim any amount for the said notice period and accordingly his claim of ₹1 lac for notice period is declined.
16. Under the last but not the least head, the plaintiff has claimed CS No.534/13/10 Vivek Garg Vs. M/s. Fontus Water Ltd. & Anr.
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interest. But as held earlier, he is not entitled to claim the amount mentioned in earlier heads, so the question of awarding interest does not arise.
17. Hence, in view of the aforesaid, it is held that the plaintiff is not entitled to any compensation and damages from the defendant and that the plaintiff had no cause of action to file the present suit. So the Issue no.1 & 3 are decided in favour of the defendants and against the plaintiff.
Relief:
18. The relief claimed is declined as the plaintiff is held not entitled to any compensation and damages as claimed. Accordingly, this suit is dismissed. Decree sheet be prepared accordingly.
19. File be consigned to Record Room.
(Announced in open Court on 23.02.2015) (Navita Kumari Bagha) ADJ01, South District, Saket Courts, New Delhi CS No.534/13/10 Vivek Garg Vs. M/s. Fontus Water Ltd. & Anr.
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23.02.2015 Present: Plaintiff with Counsel Sh. S.K. Sharma.
None for defendants.
Vide separate judgment, the present suit is dismissed. Decreesheet be prepared.
File be consigned to Record Room.
(Navita Kumari Bagha) ADJ01 (South), New Delhi.
23.02.2015 CS No.534/13/10 Vivek Garg Vs. M/s. Fontus Water Ltd. & Anr.