Delhi District Court
Sh. Joseph Brown vs M/S Reservation Data on 6 September, 2013
In the court of Ms. Ina Malhotra, Additional District JudgeI
New Delhi District: Patiala House Courts, New Delhi
Suit No. 59/11
Sh. Joseph Brown
S/o It Terrence Brawn
R/o G1/19, First Floor
Mahavir Enclave, New Delhi - 110 045.
..... Plaintiff
VERSUS
M/s Reservation Data
Maintenance (India) Pvt. Ltd.
Having its Registered Office at
E9, Connaught House
Connaught Place, New Delhi1.
..... Defendant
Plaint presented on: 05.04.2011
Arguments concluded on: 06.09.2013
Judgment on: 06.09.2013
J U D G M E N T
The plaintiff has filed this suit for Permanent and Mandatory Injunction and has also prayed for grant of damages.
2. Brief facts of the case are that the plaintiff was employed with the defendant since March 1999. The dispute between the plaintiff and the defendant arose when the plaintiff Suit No. 59/11 ....1 of 15 suddenly left for London in August 2010 to see his sister who was seriously ill. On reaching there, he intimated his sister's condition. However, on his return in September 2010, he was not allowed to join office. The plaintiff has therefore filed the present suit for recovery of his salary from August 2010 to March 2011 on the basis of his last drawn remuneration of Rs. 20,300/ amounting to Rs. 1,62,400/ and a further sum of Rs. 1,50,000/ as exemplary damages towards medical expenses, physical harassment and mental agony. Apart from recovery of the aforesaid, the plaintiff has also prayed for a decree of Mandatory and Permanent Injunction directing the defendants to allow him to resume his duty.
3. The defendant on putting in appearance has repudiated that the plaintiff is entitled to the prayer made in the suit. It is pointed out that the suit is in fact a suit for declaration under the garb of mandatory injunction. The plaintiff has also withheld material facts which makes the suit liable to be dismissed. It is confirmed by the defendant that the plaintiff was duly employed with them since 1999. He was granted several indulgences as far as work was concerned on account of his ill Suit No. 59/11 ....2 of 15 health. He only worked for about 4 & 1/2 hours a day against the the requirement for eight hours. The defendant disputes that the plaintiff had to leave for London on account of the serious illness of his sister. The document annexed by the plaintiff confirmed that the disease suffered by his sister was not sudden and in fact she had been suffering the same for a long time. The plaintiff had been employed by the defendant company on the recommendation of his nephew, Mr. Donovan Lewis, son of the plaintiff's sister. The defendant therefore communicated with the said Donovan Lewis to confirm the medical condition of the plaintiff's sister, who replied that she continued to be unwell as she had been suffering from Alzhmier for five years. The defendant's case is that the plaintiff had no leave due to him and had abandoned his work without any authorisation and left for London on the false pretext of the sudden illness of his sister, stating that she was at a critical stage.
4. From the pleadings of the parties the following issues were framed:
i. Whether the present suit is barred under the provision of Section 14 of the Specific Relief Act?
Suit No. 59/11 ....3 of 15
ii. Whether the plaintiff took leave duly sanctioned by
the defendant?
iii. Whether the plaintiff is entitled to a decree for
recovery of money? If so, how much?
iv. Relief.
5. The plaintiff has led evidence by way of an affidavit.
His testimony is a reiteration of the averments made in the plaint. The plaintiff has submitted that on account of an accident, he could not continue with his work in hotel industry and on the recommendation of his nephew who was working with defendant company, he was given employment. Since then, he has been working diligently. He joined the defendant's services at the post of Customer Care Executive on 01.03.1999. His letter of appointment is Ex. PW1/1. His salary slip for the month July 2010 is Ex. PW1/3 reflecting his last drawn salary as Rs. 20,300/. The letter confirming his employment is Ex. PW1/4. The plaintiff has stated that his sister Margaret was seriously ill in London suffering from a rare medical condition called posterior cortical atrophy due to which a part of the brain was dead and she was Suit No. 59/11 ....4 of 15 loosing sight and wished to meet him at this critical stage of illness. Accordingly, her friend sent him the letter of invitation, Ex. PW1/5. As he was not sure whether he would get the Visa or not, he could only give intimation to the Head of the Department on 06.08.2010. He gave an application dated 07.08.2010 and informed them that he would leave for London on 10.08.2010. His leave was not sanctioned but on explaining his urgency he was assured by the HR department that the same would be taken care of. After returning from London, PW1 went to join his duty on 06.09.2010 but was prevented from doing so. The defendant disbelieved that he had gone to London on an emergency. He sent a representation to the Director explaining the situation. Copy of the email is Ex. PW1/6. He has deposed that he was informed by the HR department that he would have to work on all shifts and would not be given any further leave. Suffering from medical problems (as evidence by Ex. PW1/7), the same was not possible for him to comply with. The witness has further stated that his health had suffered tremendously on account of the indifferent attitude of the defendant who was not justified in preventing him from resuming his duty without any charge, show cause notice or Suit No. 59/11 ....5 of 15 inquiry of misconduct.
6. In his crossexamination, PW1 denied the suggestion that he could not perform his duties properly on account of his medical illness. He admitted that he could not show any document to substantiate that he had applied for leave before leaving for London. He however maintained that due intimation had been given to his Head of the Department who had assured him that they would take care of the same. He also confirmed the record of the various leave he had availed from 2008 to 2010 despite the fact that he was only entitled to 15 days leave every six months. He denied that proceeding for leave without any authorisation or sanction tantamounted to misconduct. He also admitted that on account of his illness, he used to work only 4 & ½ hours every day.
7. The wife of the plaintiff had also filed her affidavit of evidence. In her crossexamination, she admitted that plaintiff had taken leave over and above his entitlement because of his illness. She denied that they had gone to London on a pleasure trip.
8. The defendant has examined their Manager -
Suit No. 59/11 ....6 of 15 Accounts as DW1. He has stated that the present suit could not be enforced for a personal contract of service in view of the provisions of Section 14 of the Specific Relief Act. He has further deposed that the plaintiff was employed on humanitarian grounds and was permitted to work only 4 & ½ hours compared to the normal working hours of 8 hours by other employees. The witness has given the details of the leave availed by the plaintiff during the period from 2008 till July 2010. He had no leave to his credit in the month of August 2010 when he left for London without any permission. The witness has also adduced in evidence the reply of the plaintiff's nephew confirming that his mother (plaintiff's sister) continued to be ill for the last five years, and her medical condition continued to remain the same. The said email is Ex. DW1/4. In view of the said mail, the plaintiff's submission that his sister was very serious and he had to leave suddenly without seeking prior sanction on grounds of urgency was palpably false. The witness denied that the plaintiff reported back to duty on 06.09.2010 or met him or any other officer of the defendant. It is also denied that the plaintiff's is entitled to any salary for the period of August 2010 to March 2011 or to any Suit No. 59/11 ....7 of 15 damages as claimed.
9. On appraisal of the evidence on record, my observation on the issues framed are as follows : I S S U E No. 1
Whether the present suit is barred under the provision of Section 14 of the Specific Relief Act?
10. Ld. Counsel for the plaintiff has argued that in terms of the letter of appointment, the plaintiff's services could not have been terminated without issuance of any show cause notice or a notice terminating his services. No such notice has been given to him. He has only been prevented from joining his office upon his return from London.
11. Ld. Counsel for the defendant on the other hand has stated that the defendant is a private limited company and the employees are governed purely by contractual service rules and do not enjoy any statutory rights or any protection under the Constitution of India.
12. Reliance is being placed by the Ld. Counsel for the defendant in the matter of Executive Committee of UP State Warehousing Corp. V. Chandra Kiran Tyagi reported in AIR Suit No. 59/11 ....8 of 15 1970 SC 1244. The Apex Court has observed that the normal rule is not to give any declaration or mandatory injunction to enforce a contract of personal service. The only exceptions were :
a) A public servant dismissed in contravention of Article 311 (2) of the Constitution of India;
b) reinstatement of a dismissed worker under the Industrial Law before a Labour Courts and
c) A statutory body acting in breach of a mandatory obligation, imposed by the statute.
13. Clearly, the plaintiff does not fall in any of the aforesaid categories.
14. Given the circumstances that the service of the plaintiff is governed by rules of private contract, it can be said that the present suit for Mandatory Injunction would be barred under Section 14 of the Specific Relief Act. It is also observed that the plaintiff seeks declaration under the guise of the aforesaid prayer for declaring his termination illegal and permitting him to join his duties. The plaintiff's prayer for Mandatory Injunction cannot be entertained permitting him to resume his duties.
Issue No. 1 is therefore decided in favour of the defendant.
Suit No. 59/11 ....9 of 15 I S S U E No. 2 Whether the plaintiff took leave duly sanctioned by the defendant?
15. There is no dispute with respect to this fact. The plaintiff had no leave due to him. He has not been able to adduce any application for leave or intimation of going to London prior to his departure. As per his testimony, only an oral communication had been made on which he was assured by the HR department that things would be taken care of. The defendant has categorically denied any such intimation prior to the plaintiff's departure. As no leave was available, the question of sanctioning leave did not arise. The plaintiff therefore proceeded to London without any approval or sanction of leave.
Issue No. 2 is decided against the plaintiff. I S S U E No. 3 Whether the plaintiff is entitled to a decree for recovery of money? If so, how much?
16. The plaintiff has claimed salary w.e.f. August 2010 till the filing of the suit i.e. for the period of eight months. He has Suit No. 59/11 ....10 of 15 also claimed damages for mental torture and harassment in the sum of Rs. 1,50,000/.
17. In the present case, the plaintiff left the country without any intimation or sanction. The defendant's submission is that it is deemed that the plaintiff abandoned his service. Under such circumstances, no notice terminating his services was issued. The plaintiff did not have any leave to his credit and therefore knowing that no further leave was available, he chose to disregard the same and left without any intimation. Moreover, the ground that he had taken was disbelieved by the defendant in view of the specific reply given by the plaintiff's nephew in respect of his mother (the plaintiff sister's) health. His action was irresponsible, and amounted to misconduct. The plaintiff who has breached the terms of the employment cannot claim any indulgence. In view of the same, the defendant's resistance to his rejoining the services would be legitimate. The plaintiff cannot claim salary as a matter of his right after his unauthorised absence and the consequences that followed.
18. The defendant is a private company. The rules of the private employment do not make the defendant liable for any Suit No. 59/11 ....11 of 15 statutory obligations. This has been duly adjudicated vide Issue No. 1. However, the relationship of the plaintiff and the defendant would be governed by the contractual terms of the employment and the right of the employer/master to do away with the employee/servant cannot be questioned. The right of the defendant not to allow the plaintiff to join back in view of his misconduct was absolute in nature without their being any requirement for assigning any reason whatsoever. The service obligations would depend upon the contractual liability arising out of the employee's appointment letter. The service of the plaintiff was liable to be terminated by giving one month's notice or salary in lieu thereof. Though there may be merit in the defendant's resistance in the plaintiff's rejoining their service on account of misconduct, they were supposed to give one month's notice to terminate the same. Having failed to do so would not entitle them to escape the liability to pay one month's salary in lieu.
19. With respect to his claim of damages on account of mental harassment, the grievance of the plaintiff in not being able to join stems from his own actions. He cannot hold the defendant Suit No. 59/11 ....12 of 15 liable for damages or any harassment on account of the same. But despite the fact that there is no contractual obligations to give any compensation, keeping in view that the plaintiff had been in the defendant's employment since 1999, and there has been no formal termination of his service vide issuance of notice, it would be equitable to direct the defendant to give him certain monetary compensation for doing away with his services of several years. It would meet the end of justice and afford a sustainable platform to the plaintiff to be compensated with 15 days salary for every year of service rendered. As per the plaintiff, his last drawn salary was Rs. 20,300/. He has been in defendant's service for a period of eleven years. The financial settlement therefore being awarded to him would amount to Rs. 1,11,650/. This would be in addition to his salary of Rs. 20,300/ for the notice period.
The suit of the plaintiff is therefore decreed for recovery of Rs. 1,31,950/.
Issue No. 3 is decided in favour of the plaintiff as above.
R E L I E F
20. The suit of the plaintiff is decreed for recovery of Suit No. 59/11 ....13 of 15 Rs. 1,31,950/ together with costs and interest, pendente lite and future, @8% per annum.
Decree sheet be prepared. File be consigned to Record Room.
Announced.
(Ina Malhotra)
Addl. District JudgeI
New Delhi District : PHC
New Delhi : 06.09.2013
Suit No. 59/11 ....14 of 15
Suit No. 59/11
Present : Counsel for the parties
Vide separate Judgment, the suit of the plaintiff is decreed in terms thereof. Decree sheet be prepared.
File be consigned to Record Room.
(Ina Malhotra)
Addl. District JudgeI
New Delhi District : PHC
New Delhi : 06.09.2013
Suit No. 59/11 ....15 of 15