Sh. Pratap Bhanu vs The Chairman, Modistone And Anr.
2007 Latest Caselaw 450 Del

JUDGMENT

Swatanter Kumar, J.

1. Shri Pratap Bhanu filed a suit for recovery of emoluments @ Rs. 18,402/- per month from January, 1997 to June, 1997 and further for a decree for payment of Rs. 2 lakhs as damages suffered by him due to mental torture, harassment and humiliation caused to him as a result of wrongful termination of his services by the defendants in the suit. In addition to above reliefs, he also claimed interest @24% per annum on the amount due to him. The suit filed by him was dismissed vide judgment and decree dated 3rd February, 2003 by the Additional District Judge, Delhi, giving rise to the present Regular First Appeal.

2. The plaint was amended by the appellant/plaintiff and it was averred in the amended plaint that the plaintiff had done B.Sc.(Hons.) Mathematics in 1st Division in 1970 and M. Sc. Mathematics in 1st Division in 1972. Thereafter he worked in Council of Scientific and Industrial Research (CSIR) and did research work in the fields of Approximation theory and Approximation Functions by General Orthonormal Polynomials on A finite Segment. He was selected as Management Trainee and so appointed with M/s Modi Rubber Limited, a sister concern of Modi Group of Companies in May 1975. During his tenure of service, he performed his assigned duties satisfactorily in sales accounts department. In April, 1977, he was deputed to look after the mechanisation on accounts at Plant at Modipuram. He was appointed as General Administrator in M/s Graphics Nepal, another sister concern of Modi Group of Companies. In August, 1983, the plaintiff was appointed as Manager Coordination in M/s Stone Limited, another sister concern of Modi Group of Companies. He claimed to have performed all his duties to the satisfaction of all concerned and was responsible for looking after the software for branch operation and head office, which was developed by him in the year 1994. The defendants without assigning any reason and with mala fide intention had terminated his service on 31st December, 1996 vide letter dated 4th December, 1996 issued under signatures of defendant No. 2. It was the case of the plaintiff/appellant that the said termination was wrong illegal and without any basis. Even notice of 30 days as per terms of appointment was not given to the plaintiff. The plaintiff was not permitted to continue to perform his duties despite the fact that he approached all concerned quarters. Thereafter, the plaintiff had served legal notices dated 6th March, 1997 and 5th May, 1997 upon the defendants requesting them to withdraw the order of termination but they failed to comply with the same. The plaintiff was drawing a gross salary of Rs. 18,402.00 per month and thus, he claimed the said salary for the period afore-indicated as well as demanded Rs. 2 lakhs towards damages for loss of reputation, humiliation and disgrace caused to him. On this premise he filed a suit for recovery of Rs. 3,10,412/- against the defendants.

3. The suit was contested by the defendants, who took a preliminary objection that the suit as framed was not maintainable in accordance with the settled law. The suit was misconceived and untainable in law. It was also stated that the defendant company had become a sick unit and had approached the Board for Industrial and Financial Reconstruction under the Sick Industrial Companies (Special Provisions) Act, 1985 for rehabilitation. The scheme was being examined. Thus, the civil Court had no jurisdiction to try and entertain the suit. On facts, there was not much dispute and it was stated that the services of the plaintiff were terminated vide letter dated 4th December, 1996 in accordance with terms of employment of the plaintiff, which reads as under:

The company may terminate your services by giving you one month's notice in writing and/or payment of one month's salary in lieu of notice and you shall give the Company one month's notice in writing.

4. It was further stated that the appellant was gainfully engaged in economic activities and had filed the said suit with ulterior motives only to drag the defendants into protracted litigation. The claim for damages was denied on the ground that no humiliation/insult was caused to the plaintiff and his services were terminated simplicitor and they prayed for dismissal of the suit.

5. On the pleadings of the parties, the learned trial Court had framed the following issues:

1. Whether the plaintiff is entitled to recover Rs. 1,10,412/- on account of damages for his wrongful termination? OPP.

2. Whether the pltff. is entitled to recover damages to the tune of Rs. 2 lacs on account of suffering the mental and physical torture? OPP.

3. Whether the pltff. is entitled to recover interest? If so, at what rate, on what amount and for what period? OPP.

4. Relief.

6. Admission/denial of documents were made on 5th August, 2002 and the documents filed by the plaintiffs as Ex.P-1 to P-11 were admitted by the defendants.

7. The learned Counsel appearing for the plaintiff/appellant had relied upon the judgments of the Supreme Court in the case of Executive Committee of Vaish Degree College, Shamli v. Lakshmi Narain AIR 1976 SC 888, Dipak Kumar Biswas v. Director of Public Instructions and The Kayastha Pathshala, Allahabad v. Rajendra Prasad before the trial Court and even reiterated his arguments in appeal that the appellant was entitled to damages. The learned trial Court, after considering the evidence led by the parties, answered the issues against the plaintiff and in favor of the defendants. In regard to claim of damages arising under issue No. 2, it was observed that there was no evidence in support of such claim and consequently, dismissed the entire suit.

8. Learned Counsel appearing for the appellant while relying on the judgments of the Supreme Court in the case Smt. J. Tiwari v. Smt. Jawala Devi Vidya Mandir and Ors. , Dipak Kumar Biswas (supra) and Uptrol India Ltd. v. Shammi Bhan and Anr. has contended that termination of service of the appellant was illegal and the appellant was entitled to claim damages. The argument raised on behalf of the appellant is without merit. Firstly, none of the judgments relied upon by the appellant have any application to the facts of the present case. In other words, on application of principle of ratio of decidendi, the judgments are of no avail to the appellant. The case of Shammi Bhan (supra) is related to termination of a permanent employee, who was employed in the establishment of Government of India and the Court held that a permanent servant is granted a security of job and his services could not be terminated simplicitor by one month notice while in the case of Dipak Kumar Biswas (supra), the Supreme Court held that suit for declaration and permanent injunction in regard to wrongful refusal for approval by the Director of Education was not maintainable. In the present case, the appellant though has not referred in any detail in his pleadings whether the services were terminated or he had resigned but as per Exh. PW1/8 it was stated by the defendant company that services of the appellant were no longer required with effect from 31st December, 2005 while in terms of Exh. PW1/14 it was stated that appellant had resigned and would stand relieved with effect from 31st December, 1996. Firstly, no evidence was led by the plaintiff/appellant to state the correct position, which according to him was the basis for claiming damages of Rs. two lakhs. Further keeping in view what has been stated in the proceedings as afore-recorded, the parties had claimed no issue with regard to cause or validity of termination letter or the termination letter being in violation to the terms of appointment. The appellant in his statement as PW-1 has not rendered any explanation nor he led any evidence to show as to what steps were taken by him despite the fact that in the month of December, 1996 on different dates, he had attended the office as per the extract of the attendance register produced on record. No specific claim was raised, proved and even put forward for determination before the trial Court. The parties participated in the completion of the trial without any protest.

9. As far as damages of Rs. 2 lakh are concerned, no facts were averred in the plaint, which could form basis for raising such a claim. The pleadings of the parties are to be specific and they must provide essential details in respect of the damages sought for. Damages on the general averment of harassment or mental torture per say would be inconsequential. In addition thereto, the appellant led no evidence in support of his claim of damages. As a result of failure on the part of the appellant to discharge the onus placed on him, the learned trial Court decided issue No. 2 against the appellant by holding as under:

13...But in his entire statement, the plaintiff himself bitterly failed to depose in his examination-in-chief that he was entitled to Recover Rs. two lacs on account of damages for suffering any mental or physical torture for any period. Therefore in the absence of any facts deposed by PW-1 regarding any amount, that was spent by the plaintiff for his suffering physical or mental torture, and that such amount was due and recoverable from the defendant, I find that the plaintiff bitterly failed to prove his entitlement to recover any amount on account of damages for suffering his mental or physical torture or any humiliation after the alleged termination of his service.

10. We have no reason to differ with the findings recorded by the learned trial Court on this issue. Reverting back to claim of the appellant in respect of salary for the period in question on the ground that order of termination was illegal or bad, the trial Court while deciding issue No. 1 held as under:

12... I find that the plaintiff bitterly failed to establish the factors to calculate the damages for his alleged illegal termination, and, therefore, I find that the plaintiff bitterly failed to prove his entitlement to recover Rs. 1,10,412/- on account of damages for his alleged illegal termination. On cross-examination, the plaintiff himself has admitted to be correct that at the time of his termination the defendant company was entitled to terminate the services with one Month's notice or on payment of one month's salary in lieu of notice. He has also admitted to be correct that the termination letter clearly conveyed him to collect his dues from the account department and that he went to collect dues from the accounts department but they did not give him. In that regard he failed to show anything that he has approached the account department on any particular date to collect his dues.

11. To claim the damages for wrongful termination again there was no specific pleadings and in fact no challenge was raised to the order dated 4th December, 1996 terminating the services of the petitioner. Once the order of termination was justified and is accepted by the appellant in the facts and circumstances of the case, hardly any further controversy could be survived. For the reasons best known to the appellant, neither he claims an issue on that regard nor raises any specific pleadings as sought to be contended before this Court. It is obligatory on the part of the parties to request the Court for framing of issues though normally the Court has to frame the issues. However, if the parties participate in the proceedings without protest and despite having sufficient opportunity do not raise any plea then they cannot be heard to say that the judgment is liable to be set aside on that ground. Reference in this regard can be made to the judgments of this Court as well as Punjab and Haryana High Court in the cases of Sona Wires (P) Ltd. v. Hem Chand Jain (RFA No. 117/2005 decided on 27th April, 2006), Hoshiar Kaur v. Surjit Kaur and Ors. 2001 (3) Vol. 129 Punjab Law Reporters 175.

12. Furthermore, PW-1 and PW-2 did not even state in their evidence that as to how the amount of Rs. 1,10,412/- was due and payable to the appellant. The onus to prove the issue for this claim was obviously upon the appellant, who failed to discharge the said onus. The evidence on record clearly show that there were financial constraints with the company. The company was before the BIFR and they were reducing the man power. As a matter of policy, services of the appellant were terminated in accordance with the terms of engagement. Vide Exh. P-1/13 the appellant was appointed in the company and all the terms and conditions of his engagement were stated in the said exhibit. It was categorically stated that company could terminate the service by giving him one-month notice in writing or on payment of one-month salary in lieu of the notice. No evidence was led to show that terms of engagement were not complied with. In fact, the present case is a case of no evidence having been produced by the appellant. PW-2 Virender Kumar Verma, who was the sole witness produced by the plaintiff/appellant, did not even averred that the services of the appellant were terminated contrary to the terms of his engagement.

13. The findings recorded by the trial Court on different issues, thus, cannot be faulted with. The judgment of the trial Court does not suffer from any error of law or fact. In view of the reasons recorded in the impugned judgment and the reasons afore-recorded by us, we find no merit in the present appeal. The same is accordingly dismissed while leaving the parties to bear their own costs.