M/S. Fireball Securities & ... vs O.P. Rawat
2009 Latest Caselaw 2279 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI



+                          Date of Decision: 27th May, 2009



                            RFA 218 OF 2005



       M/S. FIRE BALL SECURITIES & CONSULTANTS          ....Appellant
                               Through: Mr. A.K. Dhatwalia, Advocate
                              versus

       O.P. RAWAT                                        ....Respondent
                                                        Through : None

       CORAM:
*      HON'BLE MR. JUSTICE P.K.BHASIN

1. Whether Reporters of local papers may be allowed to see the
   judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the digest?



                              JUDGMENT

P.K.BHASIN, J(ORAL):

This appeal is directed against judgment and decree dated 02-02-

2005 passed by the learned Additional District Judge in suit no. 211/03

whereby a decree for a sum of Rs. 62,900/- has been passed in favour

of the respondent-plaintiff and against the appellant-defendant and the

counter claim of the appellant-defendant for a sum of Rs.5,00,000/-

was rejected. The respondent-plaintiff has also filed cross-appeal

praying for passing of a decree for Rs.2,00,000/- as compensation

which has been rejected by the trial Court. The appellant-defendant has,

however, restricted its challenge only to that part of the impugned

judgment whereby suit of the respondent-plaintiff has been partly

decreed and has not challenged rejection of its counter claim by the

trial Court.

2. The relevant facts are that the respondent(herein referred to as

'the plaintiff') was employed with the appellant-company(hereinafter

referred to as 'the defendant'), which provides security services, as

Manager Operations vide appointment letter dated 13th

November,2002. His total monthly remuneration including basic salary

of Rs,4,000/- was Rs.10,456/- He was also entitled to personal

accident insurance for Rs.1,00,000/-. The plaintiff was deputed to

supervise security operations in the factory of M/s Daewoo Motors in

NOIDA on 19/05/03 when there was some violent demonstration in the

factory by the employees of M/s Daewoo Motors and during that

demonstration the plaintiff sustained serious injuries and had to be

hospitalized. As per the further case of the plaintiff the defendant did

not fulfill its obligations in the matter of reimbursement of his medical

expenses etc. except the payment of Rs. 25,600/- which was paid

directly by the defendant to Prayag Hospital In Noida where he was

admitted on the day of the incident. Medical insurance policy was also

not taken for him and so, as per the case of the plaintiff set out in the

plaint, the defendant was liable to reimburse to the plaintiff all the

medical expenses upto Rs. 1,00,000/- but the defendant did not pay

him the amount incurred by him on his medical treatment and not only

that he was also not paid his salary from July,2003 onwards and

instead he was asked to resign which he did not do. The defendant was

then served with a legal notice dated 23rd August,2003(Ex.P-5) requiring

it to make the payment of Rs.6,500/- on account money spent on

medical treatment, back wages for the months of July and August,2003

and Rs.1,00,000/- on account of compensation for mental agony. But

instead of making that payment the defendant got sent a reply dated

3rd September,2003(Ex.P-6) informing the plaintiff that he was

remaining absent from duty unauthorisedly w.e.f. 01/07/03 and so was

not entitled to salary from July,2003 onwards and also requiring the

plaintiff to withdraw his notice and to resume his duty by 10th

September,2003. Thereafter the defendant sent a letter dated 25th

September,2003(Ex.P-9) to the plaintiff informing him that since he had

failed to report for duty w.e.f. 10th September,2003 as he was required

to do vide its advocate's reply dated 3rd September,2003(Ex.P-6) his

services had stood terminated automatically w.e.f. 01/7/03 as per

clause no.8 of his appointment letter(Ex.P-7). The plaintiff then filed a

suit for recovery of Rs.3,06,500/- on account of compensation for

permanent disability and physical suffering, medical treatment

expenses, salary for the months of July to October,2003 etc.

3. The defendant had contested the suit claim and had also raised a

counter claim for Rs.5,00,000/- as damages on the allegations that in

view of the cowardice of the plaintiff shown at the time of the

employees' demonstration in the factory of M/s Daewoo Motors on

19/05/03 by running away from the scene of demonstration instead of

showing the courage in controlling the situation with the help of other

security guards the reputation of the defendant Company had been

tarnished. On the merits of the claim of the plaintiff the stand of the

defendant was that even though the plaintiff was not entitled to any

amount because of his cowardice yet on humanitarian grounds his

entire medical expenses during his hospitalization in Prayag Hospital

were borne by the defendant Company and he was also paid salary for

the months of May and June,2003 on humanitarian grounds only even

though he had not applied for leave. It was further pleaded that during

the period of hospitalization of the plaintiff the officials of the defendant

Company as well as its Chairman had been visiting him in the hospital.

It was also pleaded that the plaintiff was not paid salary after June,

2003 since despite his having assured that he shall be reporting for

duty w.e.f. 01/07/03 he did not report for duty and even after service of

notice dated 03/09/03 requiring him to report for duty w.e.f. 10/09/03

he did not join duty even though he was fully fit and in a position to

attend the office. It was also pleaded by the defendant that because of

the failure of the plaintiff to report for duty he was deemed to have lost

the lien on his employment as per clause 8 of the contract of

employment and so he was not entitled to any salary from July,2003

onwards.

4. The trial Court framed certain issues arising out of the pleadings

of the parties and thereafter both the parties adduced the evidence in

support of their respective stands. The learned trial Judge examined

the evidence adduced by the parties as also the written submissions

submitted on their behalf. The plaintiff in his written submissions had

invoked the provisions of the Employers' Liability Act, 1938. The

learned trial Judge then passed the impugned decree in favour of the

plaintiff for a sum of Rs.62,900/- which included a sum of Rs. 25,000/-

on account of compensation for pain and sufferings because of the

injuries sustained by him, Rs. 6,500/- for medical treatment and Rs.

31,368/- on account of salary for the months of July,2003 to

September, 2003 @ Rs.10,456/- p.m. Interest was also awarded on the

decretal amount @ 6% p.a. from 01/10/03 till realization. The counter

claim of the defendant was, however, rejected.

5. Feeling aggrieved, the defendant filed the present appeal

challenging the passing of decree passed in favour of the plaintiff but it

did not challenge the rejection of its counter-claim. The plaintiff also

filed cross-appeal against the rejection of part of his claim on account

of compensation for permanent injury sustained by him and prayed for

passing of a decree in his favour for Rs. 2,00,000/- on account of

compensation for permanent injury sustained by him.

6. I have heard the learned counsel for the appellant only since none

appeared for the respondent today as well as yesterday when the

appeal was taken up for hearing.

7. Learned counsel for the appellant has submitted that he was not

disputing that the appellant was liable to get the respondent treated

because of his having suffered injuries while performing his duties as

the employee of the appellant. However, two points have been raised

by the learned counsel for getting the judgment of the trial Court

reversed. Firstly, it has been contended that there was no basis

whatsoever for the learned trial Court for awarding Rs. 25,000/- as

compensation for pain and sufferings and similarly the amount of Rs.

6,500/- on account of medical expenses was also wrongly granted

since the defendant had already made the payment to the hospital

concerned and there was no further claim ever raised by the plaintiff

nor any sanction for that amount was taken for getting treatment from

a hospital of his choice after his discharge from Prayag Hospital where

he was taken on the date of the incident by the employees of the

defendant Company and had remained hospitalized for four days and

all the medical expenses incurred there were borne by the defendant

Company. Regarding the decree for three months' salary it has been

submitted that the plaintiff had been remaining absent from duty

without any intimation from July, 2003 onwards and so as per clause 8

of his appointment letter his services stood automatically terminated by

way of abandonment w.e.f. 10th July, 2003 since under that clause it

was clearly provided that in case of continuous unauthorised absence

from duty for a period of ten days the services of the plaintiff would be

deemed to have come to an end and so the trial Court had wrongly

awarded him salary for the months of July, 2003 to September, 2003.

8. In my view, as far as the decree for a sum of Rs. 25,000/- on

account of pain and sufferings, as against the amount of Rs. 50,000/-

claimed by the plaintiff, is concerned the same cannot be said to be in

any way excessive considering the fact that the plaintiff had to remain

confined to his house undisputedly from 19th May,2003 upto at least

June, 2003 because of the injuries sustained by him while performing

his duties in the course of his employment with the defendant

Company. And as far as the grant of decree for Rs.6,500/- on account

of medical expenses is concerned, according to the defendant's

counsel, the plaintiff was not entitled to get that amount since he had

not obtained prior sanction for incurring that expense. In my view, this

submission has also no merit. The defendant has not shown that the

plaintiff was required to obtain any prior sanction before purchasing

medicines. As far as the medical expenses of Rs. 6,500/- awarded by

the trial Court in favour of the plaintiff are concerned it is not disputed

that during the trial the plaintiff had proved relevant bills. So, even this

claim has also been rightly allowed by the trial Court.

9. As far as the decree on account of salary for three months is

concerned I am of the view that the same needs to be modified to some

extent. The plaintiff's case was that he had been keeping the

defendant Company informed about his physical condition and had also

been furnishing medical certificates alongwith his requests for leave on

medical grounds and the defendant had been impliedly granting

medical leave to him and so he was entitled to his salary for the months

of July, 2003 to October, 2003. In this regard the submission of the

learned counsel for the defendant-appellant was that the plaintiff had

admitted in his cross-examination that he had not sent any application

for leave on medical grounds after his discharge from the hospital and

so he was absent without leave and, therefore, not entitled to any salary

for the period of his unauthorized absence from duty. Even though the

plaintiff has not placed on record any leave applications but it can be

accepted that he had been requesting for leave and the defendant had

been impliedly granting the same as otherwise the defendant would not

have paid the salary to him for the months of May and June, 2003

which admittedly was paid to him although according to the defendant

no leave application was submitted by the plaintiff for that period also.

It was only when the plaintiff got a legal notice dated 23rd August,2003

served upon the defendant that the defendant claimed that he was

remaining absent unauthorisedly and there is no document placed on

record by the plaintiff to show that it had informed that plaintiff before

that that he was being treated as absent from duty because of his

having not applied for leave on medical grounds. Vide notice/reply

dated 3rd September,2003, the defendant claimed for the first time

that the plaintiff was absenting from duty and he should report for duty

by 10th September. So, it can be said that the plaintiff was being treated

as on medical leave at least upto August,2003 and in these

circumstances even invocation of clause 8 of the appointment letter by

the defendant in opposition to his claim of salary for the months of July

and August, 2003 was not justified since by that time the defendant

itself had not invoked that clause which it would have done if actually

the plaintiff was remaining absent unauthorisedly. However, upon the

failure of the plaintiff to resume duties even after receiving this

notice/reply dated 3rd September,2003 from the defendant he was not

entitled to his salary for September,2003 onwards. And since the

plaintiff had not joined his duties even after receiving the notice/reply

dated 3rd September,2003 the defendant could then of course invoke

clause 8 of the appointment letter and so the plaintiff was not entitled

to either three months' notice or salary in lieu thereof for bringing

about the automatic termination of his services because of his

unauthorised absence of duty for continuous period of ten days. In

these circumstances, I am of the view that the plaintiff was entitled to

his salary for July, 2003 and August, 2003 amounting to Rs. 20,912/-

but not for the month of September,2003.

10. I have gone through the reasons given by the learned trial Judge

for rejecting the plaintiff's claim of Rs. 2,00,000/- on account of

compensation for the alleged permanent injury and I am in full

agreement with those reasons and so the cross-appeal filed by the

respondent- plaintiff is liable to be dismissed.

11. In the result, this appeal is partly allowed and the judgment and

decree dated 02-02-2005 stands modified to the extent that now there

shall be a decree for a sum of Rs.52,412/- only with interest thereon @

6% p.a. as awarded by the trial Court. The cross-appeal filed by the

respondent is dismissed.

P.K. BHASIN,J

May 27, 2009 sh