Delhi District Court
vs Sh. Aman Deep on 27 May, 2011
IN THE COURT OF MS MANISHA KHURANA, CIVIL JUDGE, TIS HAZARI
COURTS, DELHI
Suit no. 588/07
Case ID No. C0968112007
Bureau of Indian Standard,
Mank Bhawan,
9, Bahadur Shah Zafar Marg,
New Delhi110002.
Plaintiff.
Versus
1. Sh. Aman Deep
R/o J370, Raghubath Vihar,
Sector14, Khargar, Navi Mumbai410210.
2. Sh. Amit Chaudhary,
Executive (Civil),
HSCL (I) Limited
E6 (A), Sector1,
Noida201301.
Defendants.
SUIT FOR RECOVERY OF RS 1,20,618/
Date of Institution : 28.09.2007
Date of reserving judgment : 25.05.2011
Date of pronouncement : 27.05.2011
Suit no. 588/07 Page no. 1/13
JUDGEMENT
This judgment shall dispose of suit for recovery of Rs. 1,20,618/ filed by the plaintiff against the defendants.
The brief facts of the case are as follows : The present suit has been filed by Sh. Tilak Raj, Director Legal of the plaintiff. It is the case of the plaintiff that defendant no. 1had applied to the plaintiff bureau vide application dated 14.06.2000 for the post of Assistant Director (System Scientist - A). It is further stated that the plaintiff based on results of the competitive examination and interview vide memo dated 11.06.04 appointed defendant no. 1 to the post of Scientist B (Assistant Director) in the BIS Scientifice Cadre, at the initial pay of Rs. 8,000/ per month in the pay scale of Rs. 800027513500/. It is further stated that vide clause no. 2 of the said memorandum it was clearly provided that if the defendant no. 1 left the service either by resignation or if his service was terminated on account of unauthoriseed absence from service before completion of three years of his employment, the defendant no. 1 would be required to reimburse to the plaintiff 6 months emoluments at the rate last drawn by him. It is further stated that as per Clause 2 of the memorandum, the defendant no. 1 also executed a surety bond dated 24.06.04 and defendant no. 2 stood as a surety for the same which was delivered to the plaintiff under the cover of letter dated 13.07.04 wherein defendant no. 1 accepted the offer of appointment as contained in memorandum dated 11.06.04. It is further stated that defendant no. 1 joined the service of plaintiff in the Civil Engineering Department dated 21.07.04 and he was also trained by the plaintiff for Suit no. 588/07 Page no. 2/13 which the plaintiff incurred heavy expenditure. It is further stated that vide letter dated 04.01.06, defendant no. 1 requested for protection of his pay in the post of Scientist - B and defendant no. 1 also prayed that if his salary could not be protected, service bond be waived off. However, the same was not acceded to by the plaintiff as was also informed to the defendant no. 1 vide letter dated 01.02.06. Therefore, defendant no. 1 vide letter dated 25.05.06/ 09.06.06 resigned from the service of the plaintiff.
2. It is further stated that vide letter dated 25.08.06, the defendant no. 1 requested the plaintiff to specify the service bond amount so that he could pay the same and the plaintiff vide letter dated 09.10.06 informed the defendant no. 1 that a sum of Rs. 1,20,618/ was outstanding against him. However, the defendant no. 1 failed to make the payment of the outstanding amount for which the plaintiff sent a reminder dated 15.02.07 and 26.02.07 and thereafter, the plaintiff also sent a legal notice dated 23.05.07 thereby invoking the surety bond. However, the said amount has not been paid by the defendants. Hence, the present suit.
3. Thereafter summons were directed to be served on defendants. However, despite being duly served, the defendant no. 2 had failed to appear and therefore, defendant no. 2 was proceeded against exparte vide the order of the Ld. Predecessor dated 10.07.08.
4. In the WS filed by the defendant no. 1, it is stated that the service bond/ Suit no. 588/07 Page no. 3/13 contract relied upon by the plaintiff is void abinito, as per Section 27 of the Indian Contract Act. It is further stated that plaintiff is governed by the Central Civil Services Rule (CCS Rules) wherein there is no provision of taking any service bond or surety bond. It is further stated that plaintiff is also covered under the Delhi Shops and Establishments Act being an establishment running in Delhi territory. It is further stated that the defendant has given one month notice as per the said Act. It is further stated that the plaintiff has failed to establish that any damage/loss has been caused to the plaintiff due to the resignation of the defendant. In the reply on merits, it is denied that Sh. Tilak Raj is duly authorised person to institute the present suit. It is further stated that the plaintiff failed to provide pay protection to the defendant for more than one and half year of employment. It is further stated that the defendant being a class I Gazette Officer was entitled to adequate infrastructure and facilities which were not provided by the plaintiff. It is further denied that intensive training involving heavy expenditure was provided to the defendant. It is further stated that the defendant never agreed to any clause of Memorandum that would restrict the defendant no. 1 from serving any other organisation before completion of three years of his employment with the plaintiff. Therefore, the service bond agreement is void as per law. It is further denied that any amount is recoverable from the defendant. The defendant, therefore, prayed that the suit of the plaintiff be dismissed.
5. In the replication filed by the plaintiff, the plaintiff has mostly denied the averments made in the WS and reiterated the averments made in the plaint. Suit no. 588/07 Page no. 4/13
6. On the basis of the pleadings of the parties following issues were framed on 16.05.09:
1. Whether the plaintiff is entitled to the recovery of Rs. 1,20,618/ as prayed for ? OPP.
2. If the answer to the issue no. 1 is in affirmative then for what period ? OPP.
3. Whether the suit has not been filed by duly authorized person ? OPD.
4. Relief.
7. Thereafter, the matter was listed for plaintiff evidence. In plaintiff evidence, Sh. Vishnu Gupta, Director, legal in the plaintiff company was examined as PW1. In his examinationinchief the PW1 mostly reiterated the averments made in the plaint and placed on record the certified copy of the office order dated 18.04.1988 as EX PW 1/1. Thereafter, PW1 was cross examined by the counsel for defendant no. 1.
8. Thereafter, Sh. R. K. Trehan, Scientist F and head HRD in the plaintiff company was examined as PW2. In his examinationinchief the PW2 placed on record the following documents:
1. Original application of the defendant no. 1 dated 14.06.2000 as EX PW 2/1.
2. Certified copy of the Memorandum dated 11.06.04 as EX PW 2/2.
3. Surety bond dated 24.06.04 as EX PW 2/3.
4. Letter sent by the defendant no. 1 to plaintiff dated 13.07.04 as EX PW 2/4. Suit no. 588/07 Page no. 5/13
5. Letter sent by the defendant no. 1 to plaintiff dated 04.01.06 as EX PW 2/5.
6. Reply sent by the plaintiff to the defendant no. 1 dated 01.02.06 as EX PW 2/6.
7. Original resignation letter of the defendant no. 1 dated 25.05.06/09.06.06 as EX PW 2/7.
8. Memorandum dated 12.07.06 as EX PW 2/8.
9. Letter sent by defendant no. 1 to plaintiff dated 25.08.06 as EX PW 2/9.
10.Reply sent by the plaintiff to the defendant no. 1 dated 09.10.06 as EX PW 2/10.
11. Letter sent by the defendant no. 1 to plaintiff dated 28.210.06 as EX PW 2/11.
12.Letter sent by the plaintiff to defendant no. 1 dated 09.01.07 as EX PW 2/12.
13.Letter dated 15.02.07 sent by the plaintiff as EX PW 2/13.
14. Reminder dated 26.02.07 sent by the plaintiff as EX PW 2/14.
15.Copy of legal notice dated 23.05.07 as EX PW 2/15.
16.Postal receipt, UPC certificate and AD Card as EX PW 2/16 to EX PW 2/18 respectively.
17. Reply to the legal notice as EX PW 2/19.
Thereafter, PW2 was cross examined by counsel for defendant no. 1.
9. Thereafter, Smt. Sneh Lata, Scientist D in the plaintiff company was examined as PW3. Thereafter, PW3 was cross examined by counsel for defendant no. 1 and the plaintiff evidence was closed on 07.02.2011.
10. Thereafter, the matter was listed for defendant evidence. In defendant Suit no. 588/07 Page no. 6/13 evidence, Sh. Aman Deep, defendant himself was examined as DW1. In his examinationinchief the DW1 mostly reiterated the averments made in the WS. Therefore, DW1 was cross examined by the counsel of plaintiff and the defendant evidence was closed on 28.03.11.
11. Thereafter, the matter was listed for final arguments. I have heard arguments on behalf of both the parties and I have carefully gone through the case file.
12. Issue no. 1 The onus of proving to the present issue has been placed on the plaintiff. The plaintiff has claimed that the defendant no. 1 had executed the memorandum EX PW 2/2 wherein it was clearly stated that as per clause 2 that in case defendant no. 1 leave the service of the plaintiff either by resignation or if his service was terminated on account of unauthorised absence from service before completion of three years of his employment, the defendant no. 1 would be required to reimburse to the plaintiff 6 months emoluments at the rate last drawn by him and in case he worked for a shorter period he would be required to reimburse to the plaintiff full emoluments. It is further stated by the plaintiff that clause no. 2 of the memorandum EX PW 2/2 also specifically provided that the defendant no. 1 before joining the service as Scientist - B (Assistant Director), shall be required to furnish a surety bond alongwith a surety to the plaintiff. It is the case of the plaintiff that the defendant no. 1 joined as Scientist - B on 11.06.04. However, defendant no. 1 resigned from the service of plaintiff vide letter dated Suit no. 588/07 Page no. 7/13 25.05.06. Therefore, the defendant no. 1is liable to pay a sum of Rs. 1,20,618/as also mentioned in EX PW 2/10 towards the payment of 6 months emoluments drawn by defendant no. 1. However, defendant no. 1 has stated in the WS that the plaintiff is not entitled to recovery the said amount as the contract relied upon by the plaintiff is void of being contrary to the provision of Section 27 of Indian Contract Act and further that the plaintiff is governed by he Central Civil Services Rule (CCS Rules) wherein there is no provision of taking any service bond or surety bond. It is further contended by the defendant no. 1 that defendant no. 1 had joined the service of the plaintiff at his request that he would be provided pay protection which the plaintiff refused to provide and therefore, the defendant resigned on 25.05.06. The defendant no. 1 has further denied that any training was imparted to him during the course of his employment.
Section 27 of the Indian Contract Act provides that : "Agreement in restraint of trade, void - Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void. "
Thus, any agreement which provides for any kind of restraint on the exercising of a lawful profession is void U/s 27 of Indian Contract Act. However, there are few exceptions to the said provision.
In Niranjan Shanker Golikari V Century Spinning & Manufacturing Co Ltd. the Hon'ble Supreme Court has held that "where the defendant was appointed for a period of 5 years, the conditions being that during this period the defendant shall not serve anywhere else even if he left the services earlier, was a valid agreement". Thus, Suit no. 588/07 Page no. 8/13 reasonable restrictions can be imposed vide the agreement of employment as to time, nature of employment which are necessary for the protection of the interest of the employer.
In the letter dated 13.07.04 EX PW 2/4 has been clearly stated that defendant no. 1 has accepted the terms and conditions stipulated in the memorandum dated 11.06.04 EX PW 2/2. Thus, the defendant no. 1 was fully aware of the terms and conditions on which the offer for being deputed as a ScientistB was made to the defendant no. 1 and the defendant no. 1 had the option to refuse the said offer and its te4rms and conditions. However, despite that defendant no. 1 chose to accept the offer of the plaintiff vide letter dated 13.07.04 EX PW 2/4. Furthermore, the said conditions and terms are reasonable for the protection of the interest of the plaintiff which is a statutory body and involves the tax payers money. The defendant no. 1 has also taken the defence that the plaintiff failed to protect his pay despite giving several assurances to him and despite his sending several reminders to the plaintiff company. Further, no evidence is adduced by defendant no. 1 to show that pay protection was a prerequisite condition for defendant no. 1 to join the services. In fact, EX PW 2/5 i.e. the letter sent by the defendant no. 1 dated 04.01.06 shows that defendant no. 1 had requested the plaintiff for fixing the salary as per Government rules and in fact, he had further requested that in case the salary is not protected the service bond may be waived off. Thereafter, vide letter dated 01.02.06 EX PW 2/6 it was duly informed to the defendant no. 1 by the plaintiff company that the benefit of pay protection cannot be extended to him and the surety bond also cannot be waived off before its validity. Thus it was not a Suit no. 588/07 Page no. 9/13 matter of right for the defendant no. 1 to get his pay protected and the same could have been done only as per rules. Thus, there is no merits in the contention of defendant no.
1. It has also being argued that no training was given to defendant no. 1, therefore no loss was incurred by the plaintiff company and thus the plaintiff is not entitled to recover the suit amount. However, perusal of the memorandum EX PW 2/2 shows that it has been stated that during the probation period the Director General may arrangement to give the defendant no. 1 such training and responsibility as deemed necessary. Moreover, the plaintiff has also produced Smt. Sneh Lata who is ScientistD posted at the training institute as PW3. PW3 has deposed that the National Institute of Training for Standardization had been set up in the year 1995 and was functioning at plaintiff headquarters and further 4 session were conducted for all the students per day for their training. PW3 also deposed that Rs. 2,500/ per day was being charged as training charges and Rs. 1,000/ was being charged towards Hostel accommodation for th students. There is no reason to disbelieve the testimony of PW3. Moreover, the defendant no. 1 had been appointed as a Scientist in a statutory body for standardization, therefore, it is had to comprehend that no training must have been imparted to defendant no. 1.
Thus, the testimony of defendant no. 1 cannot be relied upon. However, defendant no. 1 had also accepted his liability to pay the dues to the plaintiff vide letter dated 25.08.06 EX PW 2/9. Thus, as per terms and conditions accepted by the defendant no. 1, the defendant no. 1 is liable to pay the contract amount. Suit no. 588/07 Page no. 10/13
The defendant no. 2 was proceeded exparte vide the order of the Ld. Predecessor dated 10.07.08. Thus, it appears that defendant no. 2 has no defence against the plaintiff. The testimony of plaintiff has remained unchallenged, uncontroverted and unrebutted. qua defendant no. 2. Further more, the defendant no. 2 had also executed the surety bond dated 24.06.04 EX PW 2/3 where he had undertaken that in case of failure to pay the 6 months emoluments by the defendant no. 1 he shall be liable to pay the said amount.
Section 128 of the Indian Contract Act provides that : "Surety's liability The liability of the surety is coextensive with that of the principal debtor, unless it is otherwise provided by the contract."
Therefore, defendant no. 2 is also liable to pay the amount defendant no. 1. Therefore, this issue is decided in favour of the plaintiff and against defendant no. 1.
13. Issue no. 2 The onus of proving to the present issue has been placed on the plaintiff. The plaintiff has claimed pendentelite and future interest @ 18 % p.a. on the said amount. However, the same is unjust and exorbitant as the transaction between the plaintiff and defendant was not a commercial transaction. In view of the above fact, interest @ 6 % p.a. is awarded.
Suit no. 588/07 Page no. 11/13
14. Issue no. 3 The onus of proving to the present issue has been placed on the defendant. It is contended by the defendant no. 1 that Sh. Tilak Raj is not authorised to sign, verified, institute the present suit on behalf of plaintiff. On the other hand, the plaintiff has contended that Sh. Tilak Raj the then Director, Legal of the plaintiff bureau in accordance with the office order dated 10.02.09, the Director General had delegated the power to the Director, Legal to sign, verify and institute the present suit. To substantiate the same the plaintiff has placed on record the copy of the office order. Moreover, the plaintiff is a statutory body and even otherwise, the court can take judicial notice of the fact that the Director, Legal is one of the officials appointed by the Bureau itself to pursue legal matters.
This issue is also decided in favour of the plaintiff and against defendant no. 1.
15. Relief The plaintiff has been able to prove his case against the defendants and 1 and
2. The suit of the plaintiff is therefore, decreed for Rs. 1,20,618/ alongwith pendentelite and future interest @ 6 % p. a. till the final realization alongwith cost. Suit no. 588/07 Page no. 12/13
Decree sheet be prepared. File be consigned to record room after due compliance.
Announced in the open court (Manisha Khurana)
on 27.05.2011 Civil Judge, North (IV)
Tis Hazari Courts, Delhi
27.05.2011
This judgment consists of 13 pages and all the pages are duly signed by me.
(Manisha Khurana) Civil Judge, North (IV) Tis Hazari Courts, Delhi 27.05.2011 Suit no. 588/07 Page no. 13/13 Suit no. 588/07 27.05.2011 Present: Counsel for plaintiff.
Defendant no. 2 already exparte vide order dated 10.07.08. Vide separate judgment of even date the suit of the plaintiff is therefore, decreed for Rs. 1,20,618/ alongwith pendentelite and future interest @ 6 % p. a. till the final realization alongwith cost. The suit of the plaintiff is accordingly decree. The plaintiff is also entitled to the costs of the suit.
Decree sheet be drawn accordingly and file be consigned to record room after due compliance.
(Manisha Khurana) Civil Judge, North (IV) Tis Hazari Courts, Delhi 27.05.2011 Suit no. 588/07 Page no. 14/13