Delhi District Court
Sh. Akhilesh Kumar Verma vs Maruti Udyog Ltd on 26 April, 2023
IN THE COURT OF SH. SUDHANSHU KAUSHIK :
ADDITIONAL DISTRICT JUDGE-02 & WAQF TRIBUNAL :
PATIALA HOUSE COURTS : NEW DELHI
CIVIL SUIT NO.55906/2016
CNR NO.: DLND01-000001-1995
IN THE MATTER OF :-
SH. AKHILESH KUMAR VERMA
E-655, MAYUR VIHAR PHASE-II,
DELHI-110091
.....PLAINTIFF
VERSUS
1. MARUTI UDYOG LTD.
(THROUGH ITS MANAGING DIRECTOR)
JEEVAN PRAKASH BUILDING,
25, KASTURBA GANDHI MARG,
NEW DELHI-110001
2. SH. R.C.BHARGAVA,
MANAGING DIRECTOR,
MARUTI UDYOG LTD.
3. SH. D.S.GUPTA
DIVISIONAL MANAGER (MARKETING & SALES)
MARUTI UDYOG LTD.
R/O A-1/15, SAFDARJANG ENCLAVE,
NEW DELHI
4. SH. SANDEEP MAITRA
DEPARTMENT MANAGER
MARUTI UDYOG LTD.
5. SH. A.NANDY
DY. GENERAL MANAGER
MARUTI UDYOG LTD.
CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 1 of 52
6. SH. G.S.MAHESHWARI
REGIONAL MANAGER (WEST)
MARUTI UDYOG LTD.
.....DEFENDANTS
DATE OF INSTITUTION : 22.08.1995
DATE OF CONCLUSION OF FINAL ARGUMENT : 24.04.2023
DATE OF PRONOUNCEMENT OF ORDER : 26.04.2023
JUDGMENT
1. This is a suit by an employee against his employer challenging his dismissal from service. Employee was terminated on the basis of an adverse finding in the domestic enquiry conducted in respect of two charge-sheets containing charges of unauthorized absence from duty and disobeying orders of superiors. Employee has sought declaration that the domestic enquiry and his dismissal may be declared illegal, motivated, malafide, null & void. He has claimed reinstatement in service with back-wages and damages.
PLEADINGS
2. The brief facts, as disclosed in the plaint, are;
(a) On 30.04.1984, plaintiff/Akhilesh Kumar Verma was appointed as an Executive with defendant No.1/Maruti Udyog Ltd. Company (hereinafter referred to as 'the company') and he was promoted as Senior Executive in the year 1989. Defendant No.1 dismissed the plaintiff from service vide letter No.MUL/WR/4100 dated 27 th June CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 2 of 52 1992. Defendant No.2/Sh. R.C.Bhargawa is stated to be the Managing Director while defendant No.3/Sh. D.S.Gupta is the Divisional Manager (Marketing & Sales) of the company.
(b) On joining the company, plaintiff was initially assigned the work in Vehicle Dispatch Department but thereafter, he was transferred to the Marketing Department. Plaintiff was looking after major part of the company's sale and he was assigned the responsibility of looking after the dealers in Delhi, Uttar Pradesh, Madhya Pradesh & Haryana and also arranging regional conferences and giving lectures for explaining the company's sale policies.
(c) The allegations in the plaint are that defendant No.2 & 3 were involved in irregularities & corrupt practices and wanted the plaintiff to cooperate with them. Plaintiff has alleged that when he refused to to cooperate with defendant No.2 & 3, they became hostile toward him. On 16.05.1989, plaintiff was transferred to factory of the company at Gurgaon (Haryana) in Transport Planning & Dispatch Section of the Vehicle Dispatch Department. He was made to report to a person of an equivalent level. Neither work nor seat was assigned to him for 10 months and thereafter, he was asked to sit with Assistants and Supervisors, whereas his juniors were sitting in officer's row. This, according to the plaintiff, was done to humiliate CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 3 of 52 him.
(d) It is the case of the plaintiff that on 11.01.1990, an attempt was made by defendant No.5/Sh. A.Nandy, DGM to assault him in the factory premises. Plaintiff lodged a report in this regard with defendant No.3 as well as with the Managing Director of the company but no action was taken. In respect of this incident, plaintiff gave a written complaint to Superintendent of Police, Gurgaon and wrote a letter to the Minister of Industries & Planning. He gave reminders of his complaint but no action was taken.
(e) On 9th February 1990, defendant No.5 served upon the plaintiff a letter demanding explanation for his misconduct within 48 hours. Plaintiff gave reply to the said letter and the chapter was closed. Plaintiff wrote a letter on 21st February 1990 to defendant No.5 requesting for the allotment of an appropriate seat as per his seniority. In response, defendant No.5 allotted a seat to the plaintiff but the said seat was not as per the company norms. Plaintiff has alleged that defendants intentionally allotted him the seat to humiliate him as the allotted seat was not commensurate with his rank and status in the company.
(f) It is also alleged that a newspaper articles exposing number of corrupt practices and irregularities in the company appeared and it CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 4 of 52 also mentioned the role of defendants No. 2 & 3 in those irregularities. An FIR was also registered by Central Bureau of Investigation (CBI) in this regard. Suspecting that plaintiff was behind CBI enquiry, defendants decided to transfer him to Bombay and a transfer order dated 17.04.1990 was accordingly issued. A representation made by the plaintiff for cancellation of transfer was rejected. Plaintiff filed a civil suit of injunction against his transfer but could not succeed in getting any interim relief. Despite request of the plaintiff, no arrangement was made by the company for his travel to Bombay for joining the Regional Office to which he had been transferred. He was rather given a charge-sheet alleging unauthorized absence and disobedience of the orders.
(g) On 29th January, 1991, plaintiff was relieved from the factory and he joined Bombay office on 30th January, 1991. Since, the wife of the plaintiff fell sick, he proceeded to Delhi after submitting a leave application. When he joined back Bombay office on 01.04.1991, he was not assigned any work and was asked to go to Jawahar Lal Nehru Port Trust, Raigarh without being assigned any work. He was posted at Jawahar Lal Nehru Port Trust, Raigarh vide order dated 6 th April, 1991 but no work was allotted to him even at Raigarh. Since, no work was assigned to the plaintiff, he proceeded on leave but the CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 5 of 52 leave was not sanctioned. A charge-sheet dated 5 th August, 1991 was then served on him on 7th August, 1991 alleging unauthorized absence and disobedience of orders of the superiors. Plaintiff was given 10 days time to file reply to the charge-sheet. However, even before expiry of the time stipulated in the charge-sheet, enquiry was instituted against the plaintiff. Defendant No.4/Sh. Sandeep Maitra, Dy. Manager was appointed as Enquiry Officer.
(h) It is the case of plaintiff that defendant No.4 told him during the pendency of enquiry that the enquiry was merely an eye-wash and he had to, in any case, submit report against him. The domestic enquiry began against the plaintiff on 21st October 1991 and it was hastily completed on 24th March 1992. Plaintiff has alleged that defendant No.4 was of the clear opinion that the charges leveled against him were baseless but he was bound to give an adverse finding under the instruction of other defendants. Plaintiff was held guilty of the charges mentioned in the charge-sheet and the finding was communicated to him vide letter dated 21.05.1992.
(i) Plaintiff submitted his representation on 09.06.1992 against the findings in the enquiry but it did not yield result. Finally, plaintiff was dismissed from the service on 01.07.1992 vide letter No.MUL/WR/4100 dated 27.06.1992. Plaintiff has challenged the CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 6 of 52 dismissal order on the grounds that; (a) the enquiry was instituted under a conspiracy with malafide intentions; (b) the enquiry was merely a formality and the enquiry office was prejudiced against him as he was under pressure of defendant No.2 & 3; (c) the replies filed by the plaintiff to the charge-sheet were not judiciously considered by the Enquiry Officer; (d) the domestic enquiry was used as a smokescreen to give a predetermined verdict against the plaintiff; and (e) the enquiry was conducted in violation of principles of natural justice.
(j) Plaintiff has sought quashing of the domestic enquiry, his reinstatement and in alternative, damages. The aforesaid amount has been claimed on the basis of last drawn salary and admissible allowances. It is the plaintiff's case that his employment was for a fixed term till he attained the age of 58 years and therefore, he should be awarded salary, gratuity and other ancillary benefits for the entire term.
3. Defendant No.1, 2 & 5 contested the suit by filing a joint written statement. Defendant No.3, 4 & 6 neither filed written statement nor joined the proceedings. They were proceeded ex-parte. The contesting defendants took a preliminary objection in the written statement about the maintainability of the suit. It was their stand that CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 7 of 52 the present suit is not maintainable in view of the earlier suit filed by the plaintiff seeking declaration and permanent injunction against his transfer. They mentioned that the present suit is based on the same cause of action and therefore, it is barred by the principle of estoppel. Apart from this, defendants raised another preliminary objection that the suit is barred by the provisions of the Specific Relief Act. Defendants mentioned that plaintiff is seeking the enforcement of a contract of service, which being personal in nature, is not enforceable under law. On merits, the contesting defendants denied the allegations made against them. In respect of incident dated 11 th January, 1990, it was alleged that plaintiff was found sitting in computer terminal room without any authorization and was asked by defendant No.5 not to create indiscipline in the department whereupon plaintiff abused him and alleged that he did not have a proper seat. It was mentioned by them that defendant No.5 thereafter raised his hand to point towards the office where the plaintiff was allotted the seat. The plaintiff thereupon lost his temper and used abusive language against defendant No.5 alleging attempt to assault.
4. Regarding allocation of work and seat in the factory premises, it was alleged by the contesting defendants that the plaintiff was informed that he had been allotted a seat in the Vehicle Dispatch Department CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 8 of 52 and Transport Billing Section but he was not satisfied with the seat allotted to him. Defendants have mentioned that plaintiff claimed that the seat allotted to him was not in accordance with his status and seniority, though, in fact, the defendants have adopted Japanese culture of sitting in open office. Regarding transfer of the plaintiff to Bombay, it was submitted by the defendants that as per the contract of service, plaintiff could have been transferred in the exigencies of the work and the transfer was made accordingly. Defendants mentioned that plaintiff was posted at Port to render assistance to the Manager, who was appointed by the company to look after its operations over there. Defendants claimed that plaintiff was avoiding orders of his transfer to Bombay and a charge-sheet dated 31 st December, 1990 was issued to him when he did not report for duty at the Regional Office till 19th November, 1990. Defendants submitted that plaintiff was unauthorizedly absent from the duty from 23 rd April, 1990 to 30th April, 1990 and 1st May, 1990 to 19th November, 1990. They disclosed that plaintiff did not comply with the order of his superiors to report at Jawahar Lal Port Trust at Raigarh and instead, came to Delhi on 11 th February, 1991 without getting his leave sanctioned. They alleged that plaintiff remained unauthorizedly absent from his duty till 30th March, 1991. Defendants denied the CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 9 of 52 allegations of bias and prejudice leveled by the plaintiff against the Enquiry Officer. They stated that the Enquiry Officer was an independent person and was not prejudiced against the plaintiff. They claimed that enquiry was conducted in accordance with law and the principles of natural justice were duly followed.
5. Plaintiff filed replication to the written statement and reiterated the contents of the plaint. Subsequently, plaintiff filed an amendment application under Order VII Rule 17 of CPC seeking liberty to amend the plaint to incorporate amendments pertaining to salary structure along with the promotional prospects but the same was dismissed vide order 15.02.2008.
ISSUES
6. The following issues were framed on the pleadings of the parties:
(1) Whether because of the suspicion of defendant No.1 that the plaintiff had made revelations of its malpractices, the plaintiff was harassed and illegally dismissed by defendant No.1? OPP (2) Whether the domestic enquiry report dated 21st May, 1992 is illegal, motivated and liable to be declared null and void?
OPP (3) Whether the dismissal order dated 27th June, 1992 is illegal, motivated and liable to be declared null and void? OPP CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 10 of 52 (4) Whether the plaintiff is entitled to any amount of compensation from the defendants? OPP (5) Whether the suit of the plaintiff is barred by the principles of estoppel? OPD (6) Whether the suit of the plaintiff is not maintainable in the present form and barred under the Specific Relief Act? OPD (7) Relief.
EVIDENCE
7. Plaintiff examined himself as PW-1 while defendant No.1 examined its Departmental Manager (ETO) Sh. A.S.Sharma as DW-1. Both the witnesses were cross-examined at length. No other witness was examined by the parties.
7.1 PW-1 filed his evidence by way of affidavit and supported the stand taken in the plaint. He relied on the documents Ex.PW-1/1 to Ex.PW-1/52. He also placed reliance on Ex.PW-1/D1 stating that it was an alleged 'Draft for Approval' prepared by the company in respect of his resignation. He admitted in cross-examination that he was transferred to the factory at Gurgaon vide transfer orders No.107 (Ex.DW-1/2). He mentioned that after being transferred to Gurgaon, he was not allotted any work. He mentioned that he complained to defendant No.5 that no work is being allotted to him but he did not CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 11 of 52 respond. He stated that although, no work was allotted to him but he continued to go to the factory. He stated that he lodged a complaint that he was not allotted proper seat as per his status in the company. He mentioned that he was a Sr. Executive and therefore, he was not to be seated along with Clerks, Assistants and Supervisors of the factory. He admitted the transfer order dated 17.04.1990 (Ex.DW- 1/7) whereby he was transferred to Bombay. He mentioned that the transfer order was received only on 08.10.1990. He admitted that he filed a representation seeking cancellation of his transfer and that the same was rejected by the company. He admitted that the rejection was communicated to him vide letter dated 15.05.1990 (Ex.PW-1/8). He admitted having filed a civil suit against his transfer order. He admitted that no injunction was granted in the civil suit and the appeal filed by him against the order of sub-judge was also dismissed.
7.2 PW-1 mentioned that he appeared before the Enquiry Officer and cross-examined the witnesses produced by the management of the company. He also admitted that he filed documents before the Enquiry Officer and his statement was recorded. He denied the suggestion that Enquiry Officer gave ample opportunity to either side to prove their case. He mentioned that Enquiry Officer informed CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 12 of 52 him that he had no other option but to submit an adverse report against him. He mentioned that he made no representation to the Enquiry Officer that he was biased. He admitted having received the enquiry report. He submitted that he made a representation against the same. He stated that during enquiry, he was temporarily transferred from Bombay to Gurgaon for the purpose of attending the enquiry proceedings. He admitted that he recorded the telephonic conversation between him and the Enquiry Officer. He mentioned that the Enquiry Officer was not aware of the fact that he was recording the said conversation. He admitted that he has not moved any application in the court for referring the recorded conversation for an expert opinion. He mentioned that his wife was present while he was recording the conversation and she assisted him. 7.3 DW-1 filed his evidence by way of affidavit and relied on the documents Ex.DW-1/1 to Ex.DW-1/13. He admitted in cross- examination that he had no personal knowledge about the case and he was deposing on the basis of records. He mentioned that he had filed the affidavit on the basis of personal record of the plaintiff available at the office of the company. He admitted that the personal file of the plaintiff was not submitted in the court. He admitted that he had never witnessed the incidents narrated in the present case. He CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 13 of 52 admitted that he was deposing only on behalf of defendant No.1. He admitted that the record of attendance sheet, punching card and the leave application submitted by plaintiff were not on record.
8. The suit was initially decreed by the High Court of Delhi on 26.09.2011. In terms of this order, High Court passed a decree for recovery for a sum of Rs.15 lac with proportionate cost in favour of plaintiff and against the company. The suit was dismissed against other defendants without any orders as to cost. The company was granted four weeks time to pay the decreetal amount and it was directed that in case, it fails to do so, interest at the rate of 6% per annum shall be paid to the plaintiff from the date of the decree till the date of payment. Plaintiff and the company filed cross appeals against the judgment of the High Court of Delhi. The judgment was set-aside by the Division Bench of the High Court of Delhi vide order dated 02.09.2014 and the matter was remanded back to the trial court for fresh consideration on issue No.1 to 4 & 6. In terms of this order, plaintiff was granted liberty to lead additional evidence. The court further directed that the amount of Rs.15,00,000/- with all accruals thereupon, which was deposited by the defendants, be released to the plaintiff. Issue No.5 became redundant in view of the fact that plaintiff gave up the prayer of reinstatement in service with CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 14 of 52 back wages.
9. After the matter was remanded back in terms of order dated 02.09.2014, in view of notification No.27187/DHC/Orgl. Dated 24.11.2015, issued by the High Court of Delhi, the suit was transferred to the District Court as the value of the subject matter was less than Rs.2 crore. Thereafter, plaintiff led further evidence in view of the liberty granted by the Division Bench vide order dated 02.09.2015. His additional affidavit is Ex.PW-1/A-1. He was cross- examined by the company.
FINAL ARGUMENTS
10. Final arguments were heard.
11. Plaintiff argued in person. He mentioned that his case stands established from the evidence and other material on record. He contended that defendants did not cross-examine him on crucial aspects and his testimony has gone unchallenged. He mentioned that the defence of defendants was based on the enquiry purportedly conducted by them in respect of alleged disobedience and unauthorized absence. He submitted that defendants have presented a defence that a fair enquiry was carried out by them before terminating him from the service but the Enquiry Officer did not step into the witness-box. He mentioned that in view of the said fact, the CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 15 of 52 enquiry report has not been proved and the same cannot be read in evidence. He submitted that although, defendant No.4 & 5 were cited as witnesses in the list of witnesses submitted by the company but they were never examined.
11.1 Plaintiff mentioned that defendant No.2 & 3 were involved in gross irregularities and corrupt practices. He submitted that defendants wanted that he should cooperate with them in the corrupt deals and when he refused to do so, they started harassing and humiliating him. He mentioned that investigation in respect of the malpractices of defendants was taken up by the Central Bureau of Investigation. He submitted that defendant No.2 & 3 starting targeting him as they suspected him to be the whistle blower. He contended that defendants transferred him to the factory at Gurgaon with the sole objective of harassing and humiliating him. He mentioned that defendants continued to harass him even after transferring him to Gurgaon. He stated that he was not provided proper seat as per his status in the company and he was made to report to an officer of equal rank. He mentioned that defendants adopted these tactics to ensure that he resigns from the company.
11.2 Plaintiff argued that defendant No.3 kept conveying him messages through defendant No.5 that he could not stay in the company. He CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 16 of 52 mentioned that defendant No.5 attempted to physically assault him. He conveyed that defendant No.5 misbehaved with him in the presence of other employees of the company. He mentioned that a complaint was lodged by him against defendant No.5 but no action was taken. He argued that although, the entire case of defendant is based on allegations that he remained unauthorizedly absent from duty and disobeyed the orders of superiors but no suggestion in conformity with the said line of defence was made to him during cross-examination.
11.3 Plaintiff challenged the enquiry alleging that it was constituted with malafide intention of terminating him. He mentioned that the enquiry was constituted with a predetermined motive of terminating him from the service. He mentioned that defendants were predetermined to throw him out of the company and the domestic enquiry was just an eye wash. He stated that the enquiry was orchestrated by the defendants to achieve their said goal. He mentioned that the charge of unauthorized absence from the duty is baseless. He mentioned that the charge of unauthorized absence stands demolished from the fact that he was granted leave encashment for the said period. He contended that on one hand, defendants leveled the charge of unauthorized absence from duty while on the other hand, his leave CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 17 of 52 applications were duly sanctioned for the relevant period. 11.4 Plaintiff mentioned that he has given a detailed explanation in his testimony for the delay in joining the Bombay office. He contended that he could not attend the Bombay office of the company as the travel tickets were not arranged by the defendants. He mentioned that he gave repeated reminders for the reservation of the tickets to the concerned department but it did not yield result. He mentioned that he was told after a month that he should make the reservation on his own. He contended that he was relieved from his duty in forenoon of 29.01.1991 and he joined the Regional Office (West), Bombay on 30.01.1191. He contended that defendant No.4 conveyed him over over telephone that defendant No.2 & 3 are hellbent to terminate him from the service and he recorded the conversations. He mentioned that transcripts of the recorded conversation vindicates his stand that defendant No.2 & 3 were targeting him. He contended that the adverse finding was given by defendant No.4 at the instance of defendant No.2 & 3. He mentioned that defendant No.4 did not conduct enquiry in a free & fair manner. He mentioned that his case stands proved even if the transcripts of the recorded conversation is excluded. He stated that defendants inadvertently filed 'DFA' of his termination in the documents filed along with the CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 18 of 52 written statement. He mentioned that DW-1 admitted this document in cross-examination. He submitted that the document demonstrates that defendants had already made up their mind to terminate him. 11.5 Besides the above-stated arguments, plaintiff mentioned that since, the institution of enquiry itself was bad, therefore, the enquiry proceedings were also bad. He stated that DW-1 admitted in cross- examination that he had no personal knowledge about the facts of the present case. He mentioned that DW-1 made various admissions in cross-examination which establish that he was not a competent witness. He mentioned that he was appointed by virtue of appointment letter dated 30.04.1984. He contended that it was specifically mentioned in the appointment letter that he shall remain in service till he attains the age of 58 years. He mentioned that in a service contract for fixed period, employer is bound to pay damages for the remaining period of service, in case, the services are illegally terminated before the fixed contractual period. He stated that defendants have not disputed his competence and the damages should be awarded for the remaining period of service. He mentioned that his promotional prospects and other factors should also be taken into account while awarding damages. He prayed that the suit may be decreed.
CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 19 of 52 11.6 Plaintiff relied on the following judgments:
(a) S.S.Shetty Vs Bharat Nidhi Ltd. 1958 SCR 442;
(b) M.S.Gurushankariah Vs G.V.Hillikeri & Ors. 1973 (2)
Mys.L.J.39;
(c) Rajinder Pershad (Dead) by Lrs. Vs Smt. Darshana Devi
JT 2001 (6) SC 400;
(d) State of UP Vs Nahar Singh (dead) & Ors. JT 1998 (2) SC
41;
(e) Traders Syndicate Vs UOI AIR 1983 Calcutta 337;
(f) A.E.G.Carapiet Vs A.Y.Derderian AIR 1961 Calcutta 359;
(g) Jai Inder Singh Vs UOI & Ors. 1994 (29) DRJ 224 (DB);
(h) Rattan Lal Sharma Vs Managing Committee, Dr. Hari Ram
(Co-Education) Higher Secondary School & Ors. (1993) 4 SCC 10;
(i) S.P.Bhatnagar Vs Indian Oil Corporation 1994 III AD (Delhi) 898.
(j) K.G.Hiranandani Vs Bharat Barrel & Drums Mfg.Co.Pvt.
AIR 1969 Bombay 373 (V 56 C 64).
(k) Goetze (India) Ltd. Rep. By Chief General Manager, Lodhi and the Executive Director Goetze (India) Ltd. Vs H.R.Thimappa Gowda S/o H.Ramaiah Gowda 2007 (4) KarLJ 654.
(l) S.M.Murray Vs M/s Fenner India Ltd. AIR 1986 Delhi 427.
(m) India International Centre Vs Shri. S.N.Pandit 1975 LawSuit (Del) 181 (DB).
(n) K.L.Sehgel Vs Escorts Heart Institute & Research Centre Ltd.
& Ors. (CS (OS) No.891/2008, decided on 02.07.2012 by the High Court of Delhi).
(o) D.C.M.Ltd. & Anr. Vs Mahabir Singh Rana (RFA No.453/1996, decided on 17.12.2009 by the High Court of Delhi)
(p) CDR.D.S.Brar Vs M/s General Motor India Ltd. (RFA No.29 of 2001, decided by High Court of Delhi on 31.01.2011)
(q) Akhilesh Kumar Verma Vs Maruti Udyog Ltd. (Suit No.43/2001, decided on 14.01.2005 by Ms. Sunita Gupta, ADJ, Delhi)
12. On the other hand, Sr. Counsel for the company has argued that plaintiff's case is liable to be dismissed. He submitted that the CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 20 of 52 company appointed plaintiff as an Executive vide appointment letter dated 30.04.1984 and later on, promoted him as Senior Executive on 01.03.1989. He contended that rights & obligations of the plaintiff's service are governed by the appointment letter issued by the company. He mentioned that clause-13 of the appointment letter expressly provided that plaintiff could be transferred from time to time to any position in India or abroad. He stated that clause-8 of the appointment letter provided that the services of the plaintiff could be terminated by giving three months notice. He mentioned that the contract between plaintiff and defendant No.1 was determinable by its nature and clause-8 of the appointment letter expressly provided for the termination by giving three months notice. He mentioned that the contract cannot be deemed to be for a fixed term merely because the age of superannuation was specified therein.
12.1 Sr. Counsel argued that in terms of the policy and transfer clause in the appointment letter, plaintiff was transferred to Bombay vide letter dated 17.04.1990 but instead of joining the duty at Bombay, plaintiff remained absent from service on one pretext or another. He contended that plaintiff remained absent from service for almost 1 year & 4 months and this fact was recorded by the Enquiry Officer in the finding given by him in his report. He mentioned that plaintiff CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 21 of 52 filed a civil suit seeking injunction against his transfer but his application was dismissed. He has mentioned that the civil court, while dismissing the application of the plaintiff, made an observation that on the one hand, plaintiff was absenting from office on medical grounds while on the other hand, he was attending the court. He mentioned that the civil court observed in the order that plaintiff was simply taking the ground of sickness to gain time to pursue his legal remedies. He mentioned that plaintiff filed an appeal against the order of the civil court but the same was dismissed. He stated that thereafter, plaintiff filed a revision petition against the order of the appellate court but the same was also dismissed and thereafter, the suit of the plaintiff was also dismissed for non-prosecution. Sr. Counsel has argued that the report of the Enquiry Officer was an admitted document and therefore, there was no need to examine him as a witness. He mentioned that the burden of establishing his case always remains on the plaintiff. He contended that plaintiff has admitted that he was given a fair & reasonable opportunity to present his case during the enquiry.
12.2 Sr. Counsel mentioned that Enquiry Officer conducted a detailed enquiry and examined number of witnesses before giving adverse finding against the plaintiff. He stated that plaintiff was given a fair CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 22 of 52 opportunity to cross-examine the witnesses and produce his own witnesses in the domestic enquiry. He mentioned that Enquiry Officer held the plaintiff guilty of unauthorized absence on the basis of the evidence led during the enquiry proceedings. He contended that even if the termination is held to be illegal, still, plaintiff is not entitled to receive anything beyond the salary for three months as provided in the appointment letter. He mentioned that plaintiff has relied on a tape recorded evidence to prove that the Enquiry Officer was biased but the said evidence is inadmissible. He mentioned that the original tape recorded evidence was never produced in the court and only transcripts of the same were placed on record. He mentioned that the transcripts, being secondary evidence, cannot be relied on in the absence of primary evidence.
12.3 Counsel has submitted that plaintiff has not led any evidence to establish its case that enquiry was malafide. He mentioned that the Enquiry Officer conducted a detailed enquiry and followed the procedure established by law. He mentioned that in order to establish his case, plaintiff has heavily relied on the aspect that defendants failed to put their case to him in the form of the suggestions. He mentioned that the argument is erroneous and the same is based on incorrect interpretation of law. He has mentioned that in a civil trial, CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 23 of 52 the opposite party is not obligated to put its entire case to the witness in the form the suggestion. He has mentioned that plaintiff has wrongly relied on a DFA and the reliance is misplaced. He mentioned that the said document is unsigned and there is nothing on record to show its origin. He mentioned that this document does not establish any bias or malafide against the plaintiff. He stated that the pleadings of the parties are also silent in respect of the said DFA and therefore, the same cannot be read in evidence.
13. Defendant has relied on the following judgments:
(a) Smt. J.Tiwari Vs Smt. Jawala Devi Vidya Mandir & Ors.
(1979) 4 SCC 160;
(b) Dayanand Sarup Vs Smt. Bimla Rani 1981 Labour & Industrial Cases 1009 HC;
(c) L.M.Khosla Vs Thai Airways International Public Company Ltd. & Anr. 2012 SCC Online Del 4019;
(d) Naresh Kumar Vs Hiroshi Maniwa & Ors. 2015 SCC Online Del 13315
(e) Nilesh Dinkar Paradkar Vs State of Maharashtra 2011 (4) SCC 143;
(f) Usree Vs U.Srinivas (2013) 2 SCC 114; (g) Tilak Raj Chopra Vs Alitalia Airlines 1997 (40) DRJ; (h) Kendriya Vidyalaya Sangathan & Anr. Vs S.C.Sharma (2005) 2 SCC 363; (i) SDU Travels Pvt. Ltd. Vs Vipin Sharma 2017 SCC Online Del 8177; (j) G4S Security Services (I) Pvt. Ltd. Vs Dhiraj Negi" 2018 SCC Online Del 10739. (k) Kayastha Pathshala, Allahabad & Anr. Vs Rajendra Prasad
& Anr. and State of UP & Anr. Vs Rajendra Prasad & Anr. 1989 Supp.(2) SCC 732.
(l) Shri. Avineshwar Sawhney Vs J.K.Industries Ltd. 152(2008) DLT 712 CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 24 of 52
(m) Indian Oil Corporation Ltd. Vs Amritsar Gas Services & Ors.
(1991) 1 SCC 533.
(n) Satya Narain Garg through his legal heirs Vs DCM Ltd. & Ors. 2012 (127) DRJ 216.
(o) Shriram Pistons & Rings Ltd. & Anr. Vs Shri. T.S.Mokha 2012 SCC Online Del 488.
(p) Sher Mohammad Vs Mohan Magotra 2013 SCC Online Del 2530.
ISSUE-WISE FINDINGS Issue No.5:Whether the suit of the plaintiff is barred by the principles of estoppel? OPD
14. The onus of this issue was placed on defendants. It was contended on behalf of defendants that the present suit is not maintainable in view of the earlier civil suit filed by the plaintiff seeking injunction against his transfer to Bombay. Admittedly, the previous instituted suit was in respect to the transfer of the plaintiff whereas in the present suit, he has challenged his dismissal and claimed compensation. Plaintiff has challenged the domestic inquiry report which was made the basis of his dismissal. The inquiry report was not the subject matter of the previously instituted suit. The nature and the subject matter of both the suits is different. The question whether the domestic enquiry was malafide, illegal or bad was not under consideration in the previous instituted suit. The validity of the dismissal of the plaintiff was also not under consideration before the court trying the said suit. Thus, the present suit is not barred by the principles of estoppel. In CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 25 of 52 view of this, issue No.5 is decided in favour of plaintiff and against the defendants.
Issue No.1: Whether because of the suspicion of defendant No.1 that the plaintiff had made revelations of its malpractices, the plaintiff was harassed and illegally dismissed by defendant No.1? OPP Issue No.2: Whether the domestic enquiry report dated 21st May, 1992 is illegal, motivated and liable to be declared null and void? OPP Issue No.3: Whether the dismissal order dated 27th June, 1992 is illegal, motivated and liable to be declared null and void? OPP
15. These issues are interconnected. Plaintiff's claim is based on the allegations that the domestic enquiry was simply an eye wash. He has mentioned that the company had already made up its mind to dismiss him as he had made revelations of its malpractices. He has alleged that the Enquiry Officer was biased. He has claimed that the Enquiry Officer confessed during telephonic conversation that he was harassing him at the instance of defendant No.2 & 3. He claims to have recorded this conversation. He filed the transcripts of the tape-recorded conversation. In order to demonstrate that the enquiry was being conducted in a predetermined manner, he has relied on the draft letter (Ex.DW-1/D1) alleging that the said letter was prepared much before the order of dismissal and the contents of the same were reproduced verbatim in the final dismissal order. Besides this, plaintiff has also relied on the aspect that defendants failed to cross- CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 26 of 52 examine him on crucial aspects. He has contended that during cross- examination, defendants did not give him any suggestion in conformity with their line of defence and therefore, his claim stands established.
16. The enquiry proceedings against the plaintiff were taken up pursuant to the two charge-sheets; First charge-sheet dated 31.12.1990 (Ex.DW-1/9); and Second charge-sheet dated 05.08.1991 (Ex.DW- 1/11). These charge-sheets were in respect of unauthorized absence of the plaintiff from duty and disobedience of the orders of superiors. The first charge-sheet was in respect of the unauthorized absence of the plaintiff from the period 23.04.1990 to 30.04.1990 and 08.10.1990 to 19.11.1990. The charge-sheet also pertained to his absence from duty from 01.05.1990 to 07.10.1990. The Enquiry Officer conducted enquiry and held the plaintiff guilty of unauthorized absence. In respect of the second charge-sheet dated 05.08.1991, the Enquiry Officer also held the plaintiff guilty of unauthorized absence on the basis of time office records. It was held that plaintiff remained unauthorizedly absent from duty for the period from 12.02.1991 to 30.03.1991, 29.04.1991 to 16.05.1991 and 26.07.1991 onwards.
17. I have perused the record as well as the final report of the domestic CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 27 of 52 enquiry. Record shows that Enquiry Officer carried out a detailed enquiry in respect of both the charge-sheets pertaining to the unauthorized absence of the plaintiff and his failure to comply with the orders of superiors. The enquiry proceedings were taken up on 23.09.1991 but on the said date, none of the parties appeared. Plaintiff wrote a registered letter to the Enquiry Officer mentioning that he would not be in a position to attend the enquiry as he was undergoing treatment at Safdurjung Hospital. On the said request, the next date of hearing was fixed for 05.10.1991. However, on 04.10.1991, the Enquiry Officer received a letter from the plaintiff wherein he requested for adjournment on the ground of sickness. In view of these circumstances, the hearing was adjourned to 21.10.1991. On the said date, plaintiff appeared and again sought adjournment mentioning that he had to attend a hearing of the court. His request was considered and the hearing was adjourned to 07.11.1991. The proceedings started on 07.11.1991 and the management concluded its evidence on 17.12.1991.
18. Plaintiff was given fair & reasonable opportunity to cross-examine the management witnesses. Record indicates that plaintiff sought adjournment on 25.11.1991 to cross-examine three management witnesses, who were examined on the said date. His request was CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 28 of 52 considered and the matter was posted for hearing on 02.12.1991. The fourth management witness was examined and cross-examined on 11.12.1991. The fifth management witness was examined on 16.12.1991 but plaintiff stated that he does not intend to cross- examine him. On the said date, the management requested that the proceedings may be temporarily adjourned and they may be started at a later time on the same day as the remaining two witnesses were to arrive from Bombay. However, plaintiff recorded his objection and therefore, the next hearing was fixed on 17.12.1991. It was clarified that the witnesses would be coming from Bombay and they should be cross-examined by the plaintiff on the same day. It was also clarified by the Enquiry Officer that the enquiry would proceed ex- parte if any party failed to appear. On 17.12.1991, plaintiff did not attend the hearing and the remaining two witnesses were examined in his absence. It has come on record that on the same day, plaintiff sent a telegram to the company at 15:30 hrs stating that he would not be in a position to attend the hearing on account of sudden illness.
19. The management's evidence concluded on 17.12.1991 and the matter was posted on 21.12.1991 for the defence of the employee. Plaintiff made a detailed statements in his defence, which were recorded on 26.12.1991, 28.12.1991, 30.12.1991, 06.01.1991, 08.01.1991, CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 29 of 52 11.01.1992, 13.01.1992, 15.01.1992, 17.01.1992 & 20.01.1992. On 27.01.1992, plaintiff filed certain documents which were taken on record. Thereafter, plaintiff again made defence statements which were recorded on 11.02.1992, 13.02.1992, 14.02.1992, 17.02.1992, 09.03.1992 & 11.03.1992. On 24.03.1992, plaintiff concluded his defence and the Enquiry Officer gave a detailed report on 08.05.1992 holding that the charges have been substantiated.
20. It is evident from the record that plaintiff was given a fair & reasonable opportunity to present his case. The Enquiry Officer examined the statement of witnesses and also evaluated the defence presented by the plaintiff before giving the finding that the charges have been established. Although, plaintiff failed to cross-examine two management witnesses but he has not been prejudiced in any manner. Record shows that during domestic enquiry, plaintiff was given adequate opportunity to cross-examine the witnesses produced by the defendants and he was also granted opportunity to examine his own witnesses. Plaintiff has admitted this fact in cross- examination. He admitted in cross-examination that he cross- examined the witnesses produced before the Enquiry Officer. He also admitted having filed documents before the Enquiry Officer. After concluding the enquiry, the Enquiry Officer gave a finding that CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 30 of 52 plaintiff remained unauthorizedly absent from duty during the period for which he was charge-sheeted.
21. The Enquiry Officer gave a finding in respect of first charge-sheet that plaintiff was absent from duty without sanction of his leaves from 23.04.1990 to 30.04.1990. He gave an observation that although, plaintiff submitted his medical certificate for the period from 30.04.1990 to 30.04.1990 but there was no justification for his absence from duty for the period from 23.04.1990 to 29.04.1990. He also concluded that plaintiff remained unauthorizedly absent from duty from 09.10.1990 to 19.11.1990. It was held by the Enquiry Officer that although, plaintiff submitted medical certificate for certain periods of absence such as 30.04.1990 to 14.05.1990 and again on 12.10.1990 for 6 weeks but keeping the record of his absence and the fact that he did not comply with the order of transfer, not much credence could be given to the medical certificates. The Enquiry Officer concluded that the absence of plaintiff was regularized by sanctioning of leaves to the extent due to him and remaining period was treated as absence without sanctioned leaves. In respect of the second charge-sheet dated 05.08.1991, the Enquiry Officer concluded on the basis of time office record that plaintiff remained unauthorizedly absent from duty.
CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 31 of 52
22. It is a settled law that in case of domestic enquiry, the charges needs to be established only on the basis of preponderance of probabilities. The strict standard of proof or applicability of Evidence Act stand excluded in case of domestic enquiry. Whether the charges leveled in a charge-sheet have been established against an employee is a question of fact to be considered in each case depending on its own facts & circumstances. Record indicates that Enquiry Officer concluded a detailed enquiry and due opportunity was granted to the plaintiff to present his defence. Plaintiff did not dispute his absence from duty but claimed that he is entitled to the leaves for the period of absence. The question about the absence of duty was a question of fact. Enquiry Officer took into account the statement of the witnesses and the record from the time office of the company to conclude that plaintiff remained unauthorizedly absent from duty.
23. In the case of a domestic enquiry, the scope of intervention is very limited. The main aspect which needs to be looked into is whether the person facing the enquiry was provided fair & reasonable opportunity to defend himself. It needs to be seen that the Enquiry Officer arrived at the conclusion on the basis of evidence and he did not act arbitrarily. At the same time, it is also a settled preposition that so long as the conclusion of the Enquiry Officer is based on CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 32 of 52 evidence and a fair & reasonable opportunity has been granted to the employee to defend himself, the court cannot substitute its own opinion in place of the conclusion drawn by the Enquiry Officer. In the present matter, there is nothing on record to indicate that the Enquiry Officer conducted the enquiry in a manner which has prejudiced the plaintiff's right to defend himself. Rather, on the contrary, it appears that a fair and reasonable opportunity was provided to the plaintiff not only to defend himself but also to examine the witnesses produced by the company. Plaintiff has admitted in cross-examination that he cross-examined the witnesses produced by the company before the Enquiry Officer. He has also admitted that he was allowed to file documents before the Enquiry Officer. The Enquiry Officer gave his finding after giving full opportunity to the plaintiff to defend his case. I am not able to find any fault in the manner in which the enquiry was conducted.
24. The Enquiry Officer mentioned in his report dated 08.05.1992 (Ex.DW-1/12) that plaintiff hardly attended his duty during the period of 1 year & 4 months and kept absenting himself, though at times, he sent request for leaves for regularization of his absence. Defendants have contended that there were no leaves left in the account of the plaintiff as he had already exhausted all the leaves. It CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 33 of 52 has further been mentioned by the defendants that there is material on record to show that plaintiff kept avoiding the duty and there was no justification for his absence. In order to support the conclusion drawn by the Enquiry Officer, defendants have relied on the observation made in the order dated 03.11.1990 passed by the Civil Judge in CS No.359/1990. This was a civil suit filed by the plaintiff seeking stay of his transfer order. The Civil Judge rejected the application for the stay of the transfer and passed the following orders on 03.10.1990;
"The conduct of the plaintiff is very material to show that the present suit is against the transfer order passed by the deft. which was a routine transfer and in no way can be labeled as malafide. The plaintiff remained on duty till 24.4.90 after the transfer order dated 17.4.90 was passed and the defts. tried to serve the transfer orders on the plaintiff but he proceeded on leave on
25.4.90. The defendant No.1 sent a telegram to the plaintiff that he is absenting himself on duty on 30.4.90. Thereafter, he wrote a letter dt.1.5.90 and applied for Medical Leave which he has been extending till 6.10.90 on medical grounds. 7.10.90 was Sunday so, he joined duty on 8.10.90 when he was served with the relieving order. A perusal of the judicial record also goes to show that during the period he was absenting from the office on Medical Leave he had been attending the court in this suit which clearly show that he was trying to stop the operation of the transfer order dt. 17.4.90 and his sickness was simply to gain time to pursue the legal proceedings to get a favouring order so that he can remain in Delhi. This fact is further proved from the representation dt. 1.5.90 in which he as specifically prayed for transfer to any other office in Delhi. Thus the CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 34 of 52 bent of mind of the plaintiff is clear that he do not go to Bombay in compliance of the transfer order and to remain in Delhi at any cost."
25. It is an admitted position that the suit filed by the plaintiff seeking permanent declaration & permanent injunction against his transfer order to Bombay was dismissed for non-prosecution. The observations made in the order dated 03.11.1990 (as mentioned above) does provide support to the conclusion drawn by the Enquiry Officer. The enquiry report is balanced and it contains critical evaluation of the evidence in the form of statements of witnesses and documents. It cannot be concluded by any stretch of imagination that the enquiry report is based on no evidence or any crucial evidence was ignored or overlooked by the Enquiry Officer.
26. Plaintiff has challenged the findings of the Enquiry Officer on the ground that he was biased. In order to support this version, he has relied on the transcripts of a telephonic conversation purportedly made between him and the Enquiry Officer. Plaintiff has submitted that during a personal conversation, the Enquiry Officer conveyed to him that he was being harassed at the instance of defendant No.2 &
3. Plaintiff claimed to have recorded these conversation without the knowledge of the Enquiry Officer. He has placed on record the transcripts of the conversation. On the other hand, defendants have CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 35 of 52 challenged the admissibility of the said transcripts mentioning that original tape-recorded conversation was never produced in the court.
27. It is an admitted fact that the original tape recorded conversation was never produced in the court. Plaintiff has claimed that in these conversations, Enquiry Officer conveyed to him on various occasions that the domestic enquiry is merely an eye wash and under all circumstances, the final findings would be against him. I am in complete agreement with the arguments of the senior counsel for the defendants that the transcripts are inadmissible. Since, the original purported tape recorded conversation was not produced in the court, therefore, plaintiff cannot rely on the transcripts of the tape recorded conversation. The tape recorded conversations were primary evidence and the same ought to have been produced before the court. In the absence of the same, the transcripts cannot be read in evidence. Reliance in this regard can be placed on the decision in the matter of "Ram Singh & Ors. Vs Col. Ram Singh" 1985 Supp. SCC 611 and "Nilesh Dinkar Paradakar Vs State of Maharashtra" 2001 (4) SCC 143. Thus, the reliance on the transcripts to prove that the domestic enquiry was motivated and a mere formality is misplaced.
28. In order to establish the element of bias, plaintiff has also relied on the fact that a draft letter (Ex.DW-1/D1) was found in the records of CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 36 of 52 defendants. Plaintiff has claimed that the said letter was prepared before the order of his dismissal. He has mentioned that the dismissal order was just a reproduction of the draft letter. He has contended that this circumstance goes on to show that enquiry was done in a predetermined manner to achieve the end of dismissing him illegally. I do not agree with the said line of reasoning. The circumstances, even if taken to be absolutely correct, does not indicate that the order of dismissal of plaintiff was a predetermined order. I have perused the draft letter (Ex.DW-1/D1). The said letter contains the words 'DFA' written on the top of it, which stands for 'Draft for Approval'. This aspect was put to the defendant's witness and he clarified the same. It is an admitted position that the pleading of the plaintiff does not contain any averment about the draft letter. In fact, the letter came to light when it was filed by the defendants along with record. The document is unsigned and it is not possible to ascertain the authority or the person, who had drafted this document. It is also not clear on whose directions the said document was drafted. The author and the origin of the said document are not known. In view of this, no reliance can be placed on the said letter. I am of the considered opinion that even if this letter is taken into account, it does not establish any bias or malafide against the plaintiff. Plaintiff has failed CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 37 of 52 to establish that the Enquiry Officer was biased or he acted under the pressure of the other defendants. Record shows that during the entire enquiry proceedings, plaintiff did not challenge the neutrality of the Enquiry Officer. He did not lodge any complaint against the Enquiry Officer and made no representation that he should be changed. This aspect further fortifies the arguments of the defendants that the allegations of bias are merely an afterthought.
29. Plaintiff has contended that the case stands proved as defendants failed to put material questions during his cross-examination. He has contended that he made crucial averments in his evidence by way of affidavit but no questions were put to him on these crucial aspects. He has mentioned that defendants have not controverted his statement in cross-examination and therefore, his statement has gone uncontroverted. He has heavily relied on this aspect to prove his case. He has mentioned that it is a settled law that in case, the opponent does not put his material case in cross-examination, he stands to admit the testimony of the opposite party. He has mentioned that although, it was the case of defendants that he remained unauthorizedly absent from duty but not even a single suggestion was put to him in cross-examination that he remained unauthorizedly absent from duty. He mentioned that defendant did CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 38 of 52 not make any suggestion to him that he disobeyed the orders of superiors. He has further mentioned that the defendant's witness admitted in cross-examination that he had no personal knowledge about the present case. He has contended that the testimony of this witness needs to be discarded as he had no personal knowledge about the case. In order to support these arguments, he has relied on the decision in the matter of "Rajender Prasad (dead) through LRs Vs Darshana Devi" JT 2001 (6) SC 400, "State of UP Vs Nahar Singh (dead & Ors." JT 1998 (2) SC 41, "A.E.G.Carapiet Vs A.Y.Derderian" AIR 1961 Cal.3509 (DB) and "Traders Syndicate Vs Union of India" AIR 1983 Cal.337.
30. On the other hand, defendants have argued that it is not necessary to put suggestions on each and every aspect. Counsel for defendants has contended that defendants elaborately disputed and denied every averment in the written statement. He mentioned that it is not necessary to traverse each & every statement made by the plaintiff during examination-in-chief. He has argued that plaintiff's case solely rests on the premise that the absence of suggestions should be deemed to be an admission on the part of defendants. He has mentioned that plaintiff's case rests on erroneous interpretation of law. He has mentioned that the burden of establishing a fact always CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 39 of 52 remains on the party, who asserts it. He has stated that plaintiff has not led any evidence to demonstrate that the domestic enquiry was malafide or it was done in a predetermined manner with the object of his dismissal. In order to support this line of argument, he has relied on the decision in the matter of Sher Mohammad Vs Mohan Magotra's case (supra).
31. It is a settled preposition of law that the burden of proving a fact is on the person, who asserts a particular fact. The enquiry report was based on evidence and there is material to demonstrate that plaintiff was afforded full opportunity to present his case during the enquiry. Plaintiff was permitted to cross-examine the witnesses produced by the defendants and he was permitted to file documents. He was also afforded an opportunity to lead evidence for substantiating his defence. Under these circumstances, plaintiff was under an obligation to establish by cogent and reliable evidence that the enquiry report was biased and malafide. He was required to bring on record the evidence and circumstances to establish the allegation that he was targeted by the defendants because defendant No.1 suspected that he had made certain revelations of the alleged malpractices. Plaintiff claims to have established these facts on the basis of purported admissions by the defendants on account of their failure to CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 40 of 52 put suggestions to him during cross-examination. I do not agree with the said line of reasoning. Defendants filed a detailed written statement and denied each & every aspect. In such circumstances, it cannot be taken that the plaintiff's claim stands established merely because defendants did not put suggestions to him in conformity with their line of defence. The onus to establish his case was on the plaintiff. The High Court of Delhi has observed in Sher Mohammad's case (supra) as under;
"....As far as the argument of suggestion having not been given to PW2 is concerned, I may mention that the tenor of the entire cross examination by the respondent of PW2 is to challenge his statement; though of course no specific suggestion is given that he has lied on the aspect of payment of Rs.4,25,000/- in cash in his presence. However, I am of the opinion that in a civil trial which is based on pleadings, there is no need for such suggestions to be given. The respondent in his written statement had already denied the said payment and it was for the appellant to prove the same. The practice of giving suggestions in cross-examination to witnesses is of criminal trials where there are no pleadings and the defence is built up by giving such suggestions. However unfortunately the said practice of criminal trials has crept into the civil trials also to the extent that most of the cross-examination being in the form of suggestions alone and which take considerable time. The purport of cross-examination is to challenge the testimony and/or to falsify the witness or his credit worthiness and not to give suggestions to the effect that each and every deposition in examination-in-chief is false. Similarly, a party in a civil trial is not required to in cross examination put its case to the witness as the same as aforesaid already exists in the pleadings."CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 41 of 52
32. Plaintiff has not led any evidence except examining himself. There is no independent or credible evidence to lend credence to the plaintiff's claim. In the absence of any independent evidence, the sole testimony of the plaintiff does not establish that the enquiry was malafide or that it was carried out in a predetermined manner to dismiss him. The onus of proof was on plaintiff and he has failed to discharge the same. The situation remains same even if the testimony of defendant's witness is discarded. Since, DW-1 admitted during cross-examination that he had no personal knowledge about the present case, therefore, his testimony is not of much consequence. However, this does not advance the plaintiff's cause. Even if the testimony of this witness is ignored, the position remains unaltered. The averment that defendant's witness has no knowledge about the present case does not alter the fate of the trial.
33. In view of the discussions made in the afore-mentioned paras, it is concluded that there is no evidence to demonstrate that plaintiff was targeted or harassed by the defendants. It has not been established that the domestic enquiry was illegal or malafide. It has also not been established that the enquiry was done with a predetermined intention of dismissing the plaintiff. Plaintiff was given full opportunity to cross-examine the witnesses produced by the company. He was also CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 42 of 52 given an opportunity to present his case and file documents. Fair and reasonable opportunity was given to the plaintiff to defend himself in the domestic enquiry. After holding a detailed enquiry, the Enquiry Officer held the plaintiff guilty of the charges. The plaintiff was subsequently dismissed on the basis of the finding of the Enquiry Officer. This court cannot sit in appeal to the findings given by the Enquiry Officer. All the principles of natural justice were complied with during the enquiry. In view of this, the Issue No.1, 2 & 3 are decided against the plaintiff and in favour of defendants. Issue No.4: Whether the plaintiff is entitled to any compensation from the defendants? OPP
34. The onus of this issue was placed on plaintiff. In order to seek damages, plaintiff was required to establish that he was illegally dismissed from the service. In view of the finding given in respect of Issue No.1, 2 & 3, it stands established that plaintiff was dismissed from service on the basis of the finding given by the Enquiry Officer in the domestic enquiry. Plaintiff was served with the charge-sheet in respect of the charges and he was afforded a fair & reasonable opportunity to defend himself. The Enquiry Officer gave a finding that plaintiff remained unauthorizedly absent from duty and he did not comply with the orders of his transfer. There is nothing on record CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 43 of 52 to demonstrate that the Enquiry Officer failed to comply with the rules of natural justice. Defendants followed the due process of law and terminated the services of plaintiff on the basis of the finding given by the Enquiry Officer. In these circumstances, the question granting damages does not arise.
35. Coming to the argument of the plaintiff that he is entitled to the salary and other ancillary benefits for the remainder period of his service. Plaintiff has submitted that the contract of his employment was for a fixed term and he was illegally dismissed by the defendants. It is the plaintiff's case that according to the terms of appointment letter, he was to continue in service till he attains the age of 58 years. He has contended that defendant acted maliciously by terminating his service. He has stated that defendants have not challenged the aspect that he was a competent employee. He has mentioned that defendants have also not disputed the salary package which was being received by him at the time of dismissal. He has mentioned that according to his appointment letter dated 30.04.1984, he was appointed for a specific term i.e. till he attains 58 years of age. He has stated that he is entitled to receive damages for the remaining period of service i.e. 23 years & 5 months. He has contended that the promotional prospects and enhancement of salary CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 44 of 52 should also be considered while awarded damages. He has prayed that exemplary & punitive damages should be awarded. He has also tendered in evidence the calculation sheet on the basis of which the damages needs to be quantified. In order to support his plea of damages, he has relied on the decision in "S.S.Shethi Vs Bharat Nidhi Ltd." 1958 SCR 442, "M.S.Guru Shankariah Vs G.V.Hallikeri & Ors." 1973 (2) Mysore L.J.39(DB) and "S.P.Bhatnagar Vs Indian Oil Corporation" 1994(3) AD Delhi 898 DB.
36. On the other hand, defendants have argued that plaintiff is not entitled to receive damages or compensation. Counsel for defendant No.1 has argued that plaintiff was dismissed from the service as the charges were proved in the domestic enquiry. He has contended that in case of contractual employment, the terms & conditions of service are regulated by the appointment letter. He has mentioned that clause-8 of the appointment letter dated 30.04.1984 clearly mentioned that plaintiff could be terminated from service by giving three months notice. He has argued that at best, plaintiff is entitled to receive compensation of three months salary but nothing beyond the said amount. He has mentioned that the appointment of the plaintiff was not for a fixed period. He has contended that plaintiff has based his claim on erroneous interpretation of law. In order to support his CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 45 of 52 contentions, he has relied on the decisions in "L.M.Khosla Vs Thai Airways International Public Company Ltd. & Anr." MANU/DE/3866/2012, "Naresh Kumar Vs Hiroshi Maniwa & Ors." 224(2015) DLT 586, "Smt. J.Tiwari Vs Jwala Devi Vidya Mandir & Anr." 1981 SCC 122, "Dayanand Swaroop Vs Bimla Rani" 1981 LAB. I.C 1009, "G4S Security Vs Deepak Sabarwal" 2018 SCC OnLine Del 10739 and "S.D.U.Travels Pvt. Ltd. Vs Vipin Sharma".
37. Plaintiff has heavily relied on the decision in S.S.Shetty's case (supra) to claim the damages for the remaining period of service. The observation on which reliance has been placed by the plaintiff are as under;
"....If the contract of employment is for a specific term, the servant would in that event be entitled to damages, the amount of which would be measured prima-facie and subject to the rule of mitigation in the salary of which the master had deprived him (Vide Collier V.Sunday Referee Publishing Company Ltd. (1949) 4 All E.R.234). The servant would then be entitled to the whole of the salary, benefits etc., which he would have earned had he continued in the employment of the master for the full term of contract, subject of course to the mitigation of damages by way of seeking alternative employment)."
38. It is an admitted case that the contract of employment provided that the services of the plaintiff could have been terminated by giving three months notice. The clause-8 of the appointment letter dated CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 46 of 52 30.04.1994 reads as under;
"8. On confirmation, your services are liable to be terminated by giving three months notice by either party or pay plus Dearness Allowance in lieu of such notice or in case of shorter notice, same for the period falling short of the prescribed three months period."
39. The scope of damages in a contract of employment which provides termination of service by means of a notice of a certain period was considered by the High Court of Delhi in L.M.Khosla's case (supra) wherein it was held that a contract of private employment is not similar to the public employment. Court held that a contract of employment which provides for termination of services by one month's notice, the employee will only be entitled to one month's pay in terms of employment contract. The court held that in such cases, an employee is not entitled to any relief of continuation in service or pay with consequential benefits for alleged remaining period of service till the date of his superannuation. In this matter, the High Court also interpreted the ratio of the decision in the matter of S.S.Shetty's case (supra) and held as under;
"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 No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 47 of 52 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. Plaintiff has in fact received one month's pay and therefore his claim will stand satisfied in law and he is not entitled to any reliefs as prayed for in prayer clauses in the suit."
40. The observations made in L.N.Khosla's case (supra) were reiterated by the High Court of Delhi in Naresh Kumar Vs Hiroshi Maniwa & Ors. (supra) wherein it was observed as under;
"3. In view of ratio of the judgment of the Supreme Court in the case of S.S. Shetty Vs. Bharat Nidhi Ltd., AIR 1958 SC 12 it is clear that even if there is an illegal termination of an employee by a private employer, at best the employee is entitled to the salary for the notice period. I have had an occasion to deal with the ratio in the judgment in the case of S.S. Shetty (supra) in various cases and the last of such cases is the case of L.M. Khosla Vs. Thai Airways International Public Company Limited & Anr., CS(OS) No.673/1997, decided on 01.08.2012
5. In the case of GE Capital Transportation Financial (supra), I have referred to the earlier judgment in the CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 48 of 52 case of Shri Satya Narain Garg (supra), and also the fact that contracts which are determinable in nature cannot be specifically enforced as per Section 14(1)(c) of the Specific Relief Act, 1963. I have also referred to the fact that if the contract of employment provides for one month's notice, then, the maximum entitlement of damages of an employee who alleges illegal termination is one month's pay."
41. Thus, it is a settled preposition that in order to seek damages and compensation, plaintiff must establish in the first instance that he was wrongly terminated from service. In case, it is established that plaintiff was wrongly terminated from service, the next steps would be to ascertain whether the contract of employment was for a fixed period. In case, the contract of employment is not for a fixed period and the contract expressly provides that it is terminable on a certain period of notice, the damages would ordinarily be the salary for the notice period. In the present matter, although, the appointment letter dated 30.04.1984 provided the age of 58 years as the date of superannuation but it does not mean that the employment was for a fixed period. The clause-8 of the appointment letter expressly provided that the services of the plaintiff could be terminated by giving three months notice. The appointment letter has to be read as a whole and no individual clause can be read in isolation. On going through the terms of the appointment letter, the inescapable CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 49 of 52 conclusion is that the contract of the employment was not for a fixed term. Any other interpretation would render the clause-8 of the appointment letter meaningless.
42. The judgments relied upon by the plaintiff are distinguishable as the same were passed in different set of circumstances. In K.G.Hiranandani's case (supra), "S.M.Murray's case (supra), "Indian International Centre Vs S.N.Pandit's case (supra) and "K.L.Sehgal Vs Escorts Heart Institute & Research Centre's case (supra), CDR.D.S.Brar Vs M/s General Motor India Ltd.'s case (supra), the contract of the employee was for a fixed term. Similarly, the judgments in "Goetze (India) Ltd.'s case (supra) and "DCM Ltd. & Ors. Vs Mahabir Singh Rana" 2009 SCC OnLine Del 4121 are also distinguishable as the same were passed on different facts & circumstances.
43. The scope of applicability of principles of administrative law and public law may differ in cases of a contract of private employment and public employment. However, the mode of determining the damages remains same under both circumstances. In case, the contract is determinable by giving notice for a prescribed period, the employee would, at best, be entitled to receive the pay & allowances for the prescribed notice period and nothing beyond that provided it CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 50 of 52 is established that he has been wrongfully terminated from service. In the present matter, plaintiff has failed to demonstrate that he was wrongly terminated from service. His contract of employment was determinable by three months notice. In these circumstances, plaintiff is not entitled to any damages or compensation. Accordingly, issue No.4 is decided against the plaintiff and in favour of defendants.
RELIEF
44. In view of the discussions made in the afore-mentioned paras and the findings in respect of Issue No.1 to 4, plaintiff has failed to establish that the domestic enquiry and the report given by the Enquiry Officer is bad. There is no material to conclude that the domestic enquiry was initiated or conducted in a predetermined manner. Plaintiff was given fair & reasonable opportunity to defend himself during the enquiry and present his defence. The Enquiry Officer evaluated the statement of witnesses as well as the defence presented by the plaintiff and concluded that plaintiff remained unauthorizedly absent from duty. The Enquiry Officer held that the charges of misconduct have been established. The order of the Enquiry Officer is well reasoned. I am not able to find any fault either in the procedure adopted by the Enquiry Officer or the final conclusion drawn by him CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 51 of 52 in the enquiry report. Plaintiff was dismissed from service on the basis of the charges established in the domestic enquiry. The principles of natural justice were duly complied with. There is nothing on record to indicate that the Enquiry Officer did anything or conducted himself in any manner that may prejudice the plaintiff. The allegations of bias, as leveled by the plaintiff against the Enquiry Officer, have not been substantiated. Plaintiff was dismissed from service on the basis of charges of misconduct which were duly established in the domestic enquiry. Since, employment of the plaintiff was not for a fix term and it was determinable by means of a notice for a certain period, therefore, he is not entitled to receive any damages from the company. In view of this and the observations made in the afore-mentioned paras, the suit is dismissed. Plaintiff shall reimburse the amount already received by him pursuant to the order dated 02.09.2014 passed by the Division Bench of the High Court of Delhi.
45. Decree sheet be prepared accordingly.
46. File be consigned to record room.
Announced in the open court on 26.04.2023 (Sudhanshu Kaushik) Addl. District Judge-02 & Waqf Tribunal Patiala House Courts, New Delhi/26.04.2023 CS No.55906/2016 Akhilesh Kumar Verma Vs Maruti Udyog Ltd. & Ors. Page 52 of 52