S. Ashraj Hasnain Rizvi vs Embassay Of Islamic Republic Of ...
2005 Latest Caselaw 1010 Del

JUDGMENT

Vijender Jain, J.

1 .As the Ministry of External Affairs has already granted consent to the appellant to institute the suit, no useful purpose will be served to have respondent No. 2/Ministry of External Affairs as a party in the proceedings. Mr.Munjal says that no relief is sought against respondent No. 2 and, therefore, the name of respondent No. 2 may be deleted from the array of the parties. We order accordingly.

2. Admit.

3. The appeal is directed against the judgment and decree of the Additional Sessions Judge, Delhi whereby he dismissed the suit filed by the appellant for recovery of a sum of Rs. 7,00,868/- with future interest. The appellant laid his claim against respondent No. 1 on the following alleged facts:

The appellant was appointed as an English Typist by the Embassy of Islamic Republic of Iran, respondent No. 1 herein, on the monthly salary of Rs. 1,800/- per month with effect from 1.10.1989. No written communication in respect of appointment was given as per the convention followed by respondent No. 1. The appellant, however, was paid his salary. He also received an identity card issued by respondent No. 1. His appointment was subsequently confirmed which was again communicated to him verbally. An increment was given to him in the month of October, 1990 in respect of which he received a written communication. He was designated Secretary, Science & Education Section. On 15.5.2002, he received a telephone call informing him that his service was no more required by respondent No. 1 and that he need not attend the office from that day. On his demand, respondent No. 1 offered to pay some meager compensation which the appellant declined.

4. The appellant claims the termination as pre-mature and alleges that he suffered financial loss apart from the pain and agony on account of the unilateral and sudden termination of his employment. He, therefore, makes a claim for the sum of Rs. 7,00,868/- which he calculates on the basis of his dues towards back wages, notice pay, leave encashment, provident fund, etc. The said suit proceeded ex parte because respondent No. 1 failed to put in appearance despite service of notice. Ex parte evidence was led by way of affidavit. The suit was dismissed with the observation that a contract for personal service was not specifically enforceable, that the plaintiff had failed to prove on record any written agreement giving the terms and conditions of his employment and that in the absence of any written agreement the relief claimed for could not be granted.

5. The very plea in the plaint is that the contract of service was oral. So was the termination of his service. The appellant, therefore, was not required to produce any documentary evidence of his admission into and dismissal from the service. The appellant has not claimed specific performance of the agreement. The observation that the contract was not specifically enforceable has no relevance in the case. The appellant actually claims compensation for breach of contract although he may not have actually used the terminology. He has alleged the termination to be `illegal' and `pre-mature'. The compensation is awardable on the principles of compensation available for breach of contract. Such a contract can be proved by documentary as well as oral evidence. The principles on which the trial court has dismissed the suit are entirely misplaced. Therefore, we have no option but to accept the appeal and remand the suit for fresh disposal according to law in the light of the observations made herein. The appeal is accordingly allowed and the suit remanded to the trial court for a decision afresh.

6. We direct the parties to appear before the District Judge on 24.8.2005. The District Judge will assign the case to the appropriate court for disposal of the suit according to law.