Delhi District Court
Deepak Bhagchandani vs M/S Nokia Siemens Networks Pvt. Ltd on 26 August, 2013
IN THE COURT OF SH. SONU AGNIHOTRI,
ADDL. SENIOR CIVIL JUDGE-CUM- JUDGE SMALL CAUSE
COURT-CUM- GUARDIAN JUDGE,
DISTRICT: SOUTH, NEW DELHI.
MCA No. 13/2013
UNIQUE ID NO. 02406C0053832013
DEEPAK BHAGCHANDANI
S/o Shri K. Bhagchandani,
R/o 229-C, SFS Flats,
Sheikh Sarai Phase-I,
New Delhi-110017. ..........Appellant.
Vs.
1. M/S NOKIA SIEMENS NETWORKS PVT. LTD.
Regd. Off: Regus Business Centre,
1507, 15th Floor, Eros Corporate Tower,
Nehru Place,
New Delhi-110019.
2. M/S NOKIA SIEMENS NETWORKS, U. S. ,LLC, USA
2001, Butterfield Road, Suite 420,
Downers Grove IL (USA) 60515.
3. NOKIA SIEMENS NETWORKS GMBH & COMPANY KG
St. Martin Strasse 76,
81541 Munich (Germany).
MCA No. 13/2013 Page No. 1 of 21
4. SURESH WADHWANI, CFO
M/s Nokia Siemens Networks Pvt. Ltd.,
7th Floor, Tower-A, Building No. 9A,
DLF, Cyber City Phase-3,
Gurgaon-122002 (Haryana). .....Respondents.
DATE OF INSTITUTION : 25.02.2013
DATE OF RESERVING ORDER : 17.08.2013
DATE OF PRONOUNCEMENT : 26.08.2013
O R D E R
(26.08.2013) Vide this order, I shall dispose of appeal filed by appellant under Section 104 and Order 43 read with Section 151 CPC for setting aside order dated 22.01.2013 passed by Court of Ms. Niti Phutela, Ld. Civil Judge-II, Saket Courts, New Delhi in Civil Suit No. 52/12.
Relevant facts for disposal of the present appeal are as follows:-
1. In the appeal, appellant has detailed factual matrix of present case in detail. It is pertinent to mention herein that appellant is plaintiff in suit filed before Trial Court and respondents are defendants in suit filed before Trial Court.
2. It is stated that appellant was appointed as "CTF & C Head" vide appointment letter dated 16.08.2010 by respondent no. 1 which is controlled by respondents no. 2 and 3. It is stated MCA No. 13/2013 Page No. 2 of 21 that initially appellant was put on probation for a period of 6 months and after about 9 months, respondent no. 1 gave increment of 10% to appellant considering his performance. It is stated that appellant has been performing his duties diligently and never gave chance of complaint to his seniors. It is stated that it was because of efforts made by appellant that respondent no. 1 was able to recover dues of Rs.60 Crores from Videocon i.e. one of customer of respondent no. 1.
3. It is stated that appellant in course of his employment has been performing various works and duties like preparation of Journal Entries, Purchase Order Processing, Invoice & Payment Term Entry in the System, Letter of Credit Processing, Credit Note and Debit Note preparation, Preparation of Account Statement, Preparation of Re-conciliation of Customer Invoices with Purchase Orders, Personal Visits to Offices of Customers at different Offices to collect cheques and payments, Payment Advice set off in the System, C-Form Collection, Customer Revenue and Cost Re-conciliation and other jobs of similar nature. It is stated that though nomenclature of job of appellant was that of "CTF & C Head", nature of his duties were of manual, clerical and technical nature i.e. more or less that of a Sr. Clerk and therefore his status was that of a 'Workman' as defined under Industrial Disputes Act.MCA No. 13/2013 Page No. 3 of 21
4. It is stated that respondent no. 1 is under direct control of respondents no. 2 and 3 and appellant used to receive direct instructions from respondents no. 2 and 3 regarding performance of his duties and he also used to report them through e-mails.
5. It is stated that appellant during course of his duties while reconciling accounts for period from 2007 to 2011 in September, 2011 came across certain entries which indicate that some improper entries and other incorrect bookings were made for the period prior to joining of appellant that resulted in lower tax liabilities of respondent no. 1. It is stated that after discovery of aforesaid facts, Mr. Prashant Agnihotri, Customer Team Head sent e-mail dated 02.01.2012 to Mr. Sandeep Girotra, India Head and Mr. Ashish Chaudhary, Asia Pacific/Eastern Region Head and appreciated special efforts made by appellant to put books in order. It is stated that copy of the e-mail was also sent to appellant. It is stated that appellant immediate boss i.e. respondent no. 4 did not like this fact that his subordinate has discovered something which has reflected on performance of respondent no. 4.
6. It is stated that appellant was assigned job of collecting money primarily from two customers i.e. Videocon and Indian MCA No. 13/2013 Page No. 4 of 21 Railways. It is stated that M/s. Videocon being a private organization made payment of its dues to respondent no. 1 on efforts being made by appellant but India Railways used to take some time to clear outstanding amount of respondent no. 1. It is stated that respondent no. 4 used to pressurize appellant to bribe officials of India Railways so that payments could be released immediately. It is stated that refusal of appellant to do any illegal act was not liked by respondent no. 4 who used to call appellant to his room and state that these sort of things are normal in India and that if appellant had to continue with his job, he will have to do these kind of things. It is stated that respondent no. 1 is engaged in activities like giving of gifts to Govt. Officials which fact is clear from e-mail dated 07.10.2011 sent to appellant by Mr. S. N. Bhatt, Accounts Manger of respondent no. 1.
7. It is stated that on 09.02.2012, respondent no. 4 once again called appellant to conference room in presence of Manager HR, Mr. B. K. Barman and asked appellant to tender his resignation. It is stated that respondent no. 4 told appellant that respondents no. 2 and 3 have also instructed him to take resignation from appellant in case he continues to refuse to bribe Railway Officials.MCA No. 13/2013 Page No. 5 of 21
8. It is stated that appellant being straightforward person refused to succumb to pressure of respondents upon which respondent no. 4 and Mr. Barman asked appellant to tender his resignation and also threatened that in case he does not resign, his carrier would be jeopardized. It is stated that they also stated that appellant would be terminated which would be a stigma upon his carrier and he would not be able to get employment anywhere in future.
9. It is stated that appellant and another employee Mr. Nitin Bansal also employed as "CTF & C Head" had earlier worked with Mr. Naresh Pandey in Avaya Global Connect Ltd. and Mr. Naresh Pandey had replaced respondent no. 4 as CFO of respondent no. 1 though respondent no. 4 had been working for respondent no. 1 for over 13 years which created a sense of rivalry in mind of respondent no. 4 against Mr. Naresh Pandey who brought appellant and Mr. Nitin Bansal to respondent no. 1 company. It is stated that it was after Mr. Naresh Pandey got relocated to USA that respondent no. 4 had again joined back respondent no. 1 as CFO in May-June, 2011. It is stated that during one of the conversations with appellant, respondent no. 4 alleged that appellant and Nitin Bansal were unearthing illegal activities of respondent no. 4 at instance of Mr. Naresh Pandey.
It is stated that recently respondent no. 4 has succeeded in MCA No. 13/2013 Page No. 6 of 21 taking resignation from Mr. Nitin Bansal. It is stated that with this malicious intent, respondent no. 4 is looking ways to remove appellant from respondent no. 1 company. It is stated that it came to knowledge of appellant that respondent no. 4 in connivance with couple of his associates within the organization has robbed respondent no. 1 company of tens of crores of rupees.
10. It is stated that on 16.02.2012, when appellant went to office of respondent no.1, he was prevented by two security guards from entering the office and that those guards informed appellant that he need not come to the office. It is stated that fearing that this may ultimately lead to 8 days of forced absence resulting in abandonment of services by appellant which may ultimately lead to automatic terminations of services of appellant, appellant approached Court of law to seek protection.
11. It is stated that appellant with his suit filed application under Order 39 Rule 1 and 2 CPC seeking an immediate injunction against respondents from preventing entry of appellant, from terminating appellant without following due process of law and from coercing appellant to tender his resignation but at the outset these reliefs were not granted and on receiving notice from Court on 21.02.2012, respondents MCA No. 13/2013 Page No. 7 of 21 terminated services of appellant. It is stated that the above- mentioned application was decided finally on 22.01.2013 by Ld. Civil Judge.
12. Appeal has been filed on the following grounds:
(i) Because Trial Court erred in arriving at conclusion that appellant failed to satisfy ingredients to get relief of injunction as mentioned in Para No. 11 of impugned order.
(ii) Because prima-facie case in favour of appellant existed on the date of filing of suit before Trial Court and facts as narrated in suit required giving of protection to appellant by way of issuing temporary injunction as appellant was being forced to perform illegal services beyond scope of terms of appointment of appellant and on refusal of appellant, he was being forced to tender his resignation and was also being prevented lawful entry into office in order to create situation whereby prolonged absence of appellant would have resulted in abandonment of services by appellant.
MCA No. 13/2013 Page No. 8 of 21(iii) Because respondents with turnover of thousand of crores and having workforce of thousands of employees could have waited for few more days without suffering any loss till disposal of present suit and that act of respondents have rendered appellant jobless. Balance of convenience therefore lies in favour of appellant.
(iv) Because appellant continues to suffer irreparable injury caused by act of respondents as he is still unemployed due to illegal acts of respondents. Respondents are trying to circumvent law to mislead courts to pass wrong decisions. Respondents have terminated services of appellant two days prior to date of hearing with the purpose of rendering present suit infructuous.
(v) Because initially relief of ad-interim injunction was denied to appellant despite the fact that appellant was anticipating such a move on part of respondents and later on appellant was forced to file an application under Section 151 CPC seeking directions to respondents to restore status quo anti as appellant was terminated from his services within MCA No. 13/2013 Page No. 9 of 21 3 days from institution of suit before Trial Court to defeat purpose of suit filed by appellant.
(vi) Because Trial Court failed to appreciate need of hour and gravity of situation as a honest and upright employee was seeking relief against his employer who was pressurizing him to do illegal things.
(vii) Because respondents feared that their corrupt practices would be further exposed if suit filed by appellant is decided against them and that is why appellant was terminated within 3 days of filing of suit and getting notice from Court.
(viii) Because the reason attributed by respondents in their so called termination order is that re-structuring and re-organization is taking place in respondent Company but that none other employee other than appellant was terminated and that for retrenchment respondents should have followed Industrial rules concerning retrenchment.
MCA No. 13/2013 Page No. 10 of 21(ix) Because illegal termination order issued by respondents against appellant is a stigma in career of appellant.
(x) Because if Court does not come to rescue of small time employee like appellant, then multinationals would play havoc with lives and career of such honest employees such as appellant. Appellant has been punished by respondents being a whistle-blower.
13. It has been prayed to set aside impugned order dated 22.01.2013 passed by Ms. Niti Phutela, Ld. Civil Judge-II, District South, Saket Courts in Civil Suit No. 52/12 and to order status quo anti of appellant in employment of respondents as on 21.02.2012.
14. No reply to the appeal was filed by respondents and arguments were straightaway addressed on behalf of respondents.
15. I have heard arguments addressed by counsel for appellants and respondents on the appeal and perused the MCA No. 13/2013 Page No. 11 of 21 record including TCR, written submissions filed on behalf of appellant and judgments filed on behalf of respondents.
16. At the very outset, it is better to clear that impugned order was passed by Trial Court on an application filed by appellant Under Section 151 CPC which was treated as an application filed under Order 39 Rule 1 and 2 CPC on statement given by counsel for appellant before Trial Court on 10.12.2012.
17. Appellant filed suit for permanent injunction before Trial Court praying for restrainment of respondents from preventing appellant from entering office premises, from terminating appellant without following due process of law and from coercing appellant to tender his resignation. Appellant filed an application before Trial Court under Order 39 Rule 1 and 2 CPC in which reliefs claimed were the same as prayed for in the main suit filed by appellant. Before reliefs claimed in application under Order 39 Rule 1 and 2 CPC could be granted to appellant, respondents terminated services of appellant vide termination letter dated 24.02.2012 (Services of appellant were terminated after institution of suit filed by appellant before Trial Court and after service of summons of the suit upon respondents No. 1 and 4 on 21.02.2012 and 22.02.2012 respectively). From facts in hand it is evident that services of appellant were terminated MCA No. 13/2013 Page No. 12 of 21 by respondents before passing of an interim order in favour of appellant by Trial Court and thereby rendering application filed by appellant before Trial Court under Order 39 Rule 1 and 2 CPC infructuous as well as suit also.
18. Appellant filed application under Section 151 CPC before Trial Court praying therein for directing respondents to restore Status-quo-anti as on date of filing of suit and for directing respondent no.1 to take back appellant on its roll and treat him to be in employment of respondent no.1 without any break in service.
19. Respondents in their WS filed before Trial Court stated that services of appellant have been terminated by respondent no.1 vide letter dated 24.02.2012 in terms of clause 6 of his appointment letter whereby either of parties was free to terminate contract of employment by giving two month's notice or two month's salary in lieu of notice and that appellant was duly paid two month's salary in lieu of notice period which amount was credited in ICICI Bank Account of plaintiff. Copy of appointment letter dated 16.08.2010 has been filed by appellant before Trial Court which fortifies stand taken by respondents and as per clause 6.1 of the appointment letter either party can terminate employment by giving two month's notice without MCA No. 13/2013 Page No. 13 of 21 assigning any reasons.
20. I am of the opinion that status quo anti can not be granted by Court as interim measure unless there is a status quo order in a case passed by that Court particularly in matter involving service. So the relief sought by appellant in his application under Section 151 CPC (Treated as application under Order 39 Rule 1 and 2 CPC) can not be granted. Under order 39 rule 1 and 2 CPC, restraint orders can be passed by Court and orders which are in nature of mandatory injunction can not be passed. So treatment of application of appellant under Section 151 CPC as an application under Order 39 Rule 1 and 2 CPC by Trial Court was inherently wrong.
21. Further appellant in plaint as well as in appeal filed by him has claimed himself to be a 'Workman' under Industrial Disputes Act and has stated his duties to be that of manual, clerical and technical nature i.e. more or less duties corresponding to be that of a Sr. Clerk. Counsel for appellant during course of arguments referred to judgment in case titled as ' American Express Bank Ltd. and Anr. Vs. Ravinder Kumar Saini MANU/DE/1337/2008' but I am afraid that judgment referred on behalf of appellant does not apply in the facts and circumstances of present case as admittedly services of MCA No. 13/2013 Page No. 14 of 21 appellant have been terminated before filing of application under Section 151 CPC by appellant and appellant claiming himself to be a 'Workman' in pleadings has brought the dispute between himself and respondents squarely within ambit of provisions of Industrial Disputes Act,1947.
Term "Industry" has been defined under Section 2(j) of Industrial Disputes Act, 1947 as under:
(j) "Industry" means any business, trade, undertaking, manufacture or calling of employers and includes any calling service, employment, handicraft or industrial occupation or avocation of workmen.
Term "Workman" has been defined under Section 2(s) of Industrial Disputes Act, 1947 as under:
(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding unde(r this Act in relation to an industrial dispute, includes any such person who has MCA No. 13/2013 Page No. 15 of 21 been dismissed, discharged or retrenched in connection with, or as a consequence of, that disput, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person --
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison, or
(iii) who is employed mainly in a managerial or administrative capacity, or
(iv) who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
Now, let me examine as to whether in facts and circumstances of present case, respondent no.1 company MCA No. 13/2013 Page No. 16 of 21 comes within definition of Industry and appellant comes within definition of Workman as defined under Industrial Disputes Act, 1947 so that jurisdictional aspect may become clear. Appellant in the plaint filed by him has stated respondent No.1 Company to be a Company incorporated as per Companies Act,1956. Respondent no.1 company is engaged in business becomes evident from averments of appellant in plaint as well as appeal. Appellant in plaint and appeal filed by him has mentioned about two customers of respondent no. 1 company i.e. Videocon and Indian Railways meaning thereby that respondent no.1 company was doing some business with these two customers. Term "Business" is included in definition of "Industry" as defined under Section 2(j) of Industrial Disputes Act, 1947. Keeping in mind parameters of definition of "Industry" as defined under Industrial Disputes Act, 1947, respondent no.1 company appears to be an industry within meaning of term "Industry" under Industrial Disputes Act, 1947. Appellant in appeal/plaint filed by him has disclosed his status in respondent no. 1 company to be that of a 'Workman' though his designation in respondent no. 1 company was that of 'CTF & C Head'. Appellant has described his duties and has stated that he is performing duties of nature of a Sr. Clerk. As per definition of workman under Industrial Disputes Act, 1947, workman means any person employed in any Industry to do any manual, unskilled, skilled, technical, MCA No. 13/2013 Page No. 17 of 21 operational, clerical or supervisory work for hire or reward. Definition of workman under Industrial Disputes Act, 1947 excludes person employed mainly in Managerial or Administrative Capacity or the person who being employed in a supervisory capacity, draws wages exceeding Rs.10,000/- per mensem or exercises either by the nature of duties attached to the office or by reason of powers vested in him, functions mainly of a managerial nature. As stated by appellant himself in the appeal/plaint, duties of appellant appears to be not of managerial or administrative nature nor it appears to be of supervisory nature and it appears that appellant is performing job of a skilled worker with technical know-how. Managerial or Administrative Functions require a person to control work of others. The mere designation by which a person is designated is not conclusive of his status as an officer and nature of duties has to be looked into for deciding as to whether the person is having administrative or managerial power. The mere designation of a person as manager or administrator of an industry is not sufficient to conclude that he is not a workman. The question whether a person is employed in a supervisory capacity or on clerical work, depends upon whether the main and principal duties carried out by him are those of a supervisory character or of a nature carried out by a clerk. Designation of appellant as CT F& C Head does not exclude MCA No. 13/2013 Page No. 18 of 21 appellant from definition of workman as defined under Industrial Disputes Act,1947. Hence, appellant appears to be a workman under the definition of workman as defined under Industrial Disputes Act, 1947 in view of pleadings of appellant himself. Industrial Dispute as per Section 2(k) of Industrial Disputes Act, 1947 means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. It is not in dispute in the present case that respondent no.1 was employer of appellant. Appellant is covered within definition of workman under Industrial Disputes Act, 1947 has already been observed. Appropriate remedy of appellant after his termination was to approach appropriate Government for reference of his industrial dispute to Court of appropriate jurisdiction under Section 10 of Industrial Disputes Act, 1947.
22. Though act of termination of appellant by respondents may not be a moral one as appellant was terminated after receipt of summons issued by Trial Court but the same can not be termed illegal perse (as as per appointment letter issued to appellant, either party was entitled to terminate contract of employment after two months notice and in absence of notice, MCA No. 13/2013 Page No. 19 of 21 after payment/ deduction of two months salary as the case may be) but after appellant was terminated, nature of relief sought by him changed totally and appropriate remedy for him was to approach Labour Court, he being a workman.
23. Judgment in case titled as 'Apollo Tyres Ltd. Vs C.P. Sabastian 2009(7) SCR 336' has been filed on behalf of respondents. In this judgment, Hon'ble Apex Court held that "On the facts of the case, we are clearly of the view that the suit filed by plaintiff was barred by Section 14(b) of the Specific Relief Act,1963 which states that a contract of personal service cannot be enforced in a civil suit. In our opinion, if the plaintiff had any grievance and if he is a workman as defined in the Industrial Disputes Act,1947, he should have raised an Industrial dispute and sought relief under the Industrial Disputes Act,1947 before the labour Court or Industrial Tribunal. There are many powers which the Labour Court or Industrial Tribunal enjoy which the Civil Court does not enjoy e.g. the power to enforce contracts of personal service, to create contracts, to change contracts etc. These things can only be done by the Labour Court or Industrial Tribunal but can not be done by a Civil Court. A contract for personal service includes all matters relating to the service of the employee e.g. confirmation, suspension, transfer, termination etc."
MCA No. 13/2013 Page No. 20 of 21In view of law laid down in Apollo Tyres Ltd. (Supra) and in view of Section 14 (b) of Specific Relief Act, I am of the view that relief sought by appellant will amount to enforcement of contract of personal service which is not permissible in law.
24. In view of my discussion in various preceding paras, I am of the opinion that conclusion arrived at by Trial Court in impugned Order dated 22.01.2013 is correct though it lacks in adequate reasoning. Accordingly, order of Trial Court is upheld. Appeal filed by appellant is without merits and is accordingly dismissed. TCR be sent to Trial Court alongwith copy of this Order.
File be consigned to Record Room.
Announced in open Court on 26.08.2013 Sonu Agnihotri JSCC-cum-ASCJ-cum-GJ South District, Saket Courts, New Delhi.
MCA No. 13/2013 Page No. 21 of 21