Delhi High Court
Shri Subodh Asthana vs M/S Skypak Service Specialist Ltd ... on 15 February, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 15.02.2011
+ R.S.A.No.32/2011 & C.M.No.2671/2011
SHRI SUBODH ASTHANA ...........Appellant
Through: Mr. K.K. Sabharwal, Advocate.
Versus
M/S SKYPAK SERVICE SPECIALIST LTD & ANR. .......Respondents
Through: Nemo.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
This appeal has impugned the judgment and decree dated
27.10.2010 which had endorsed the findings of the trial Judge
dated 10.02.2010 whereby the suit filed by the plaintiff Subodh
Asthana seeking a declaration and permanent injunction to the
effect that his termination letter dated 16.01.2002 (whereby his
services were terminated) be declared illegal and invalid had been
dismissed.
2 The plaintiff was appointed in the management cadre of the
defendant company vide his appointment letter dated 09.08.2000.
He was to be on probation initially for a period of six months
during which his services were terminable by a 15 days notice. On
confirmation, his appointment was terminable by giving him a one
month notice or pay in lieu thereof. The case of the plaintiff is that
he had rendered his services satisfactorily in the defendant
company continuously for about 17 months. His services were
terminated vide termination letter dated 16.01.2002. The
contention of the plaintiff is that this termination was illegal and
mala-fide. Suit was filed.
3 The defendant had contested the suit. It was stated that the
plaintiff continued to be on probation. He was negligent in his duty.
He was warned on several occasions. Inspite of these warnings, he
did not improve his behavior. Termination letter followed.
4 The trial Judge had framed issues. Oral and documentary
evidence had been led. The plaintiff had examined himself. It is not
in dispute that the plaintiff had earlier filed a suit i.e. Suit No.
639/2006 whereby he had sought recovery of Rs. 42,616/- in
respect of emoluments for the period of service w.e.f. 01.12.2000
to 18.01.2002. In this plaint, he had averred that his termination
dated 16.01.2002 is illegal; his emoluments had been illegally
withheld. The said suit had been decreed in favour of the plaintiff.
This was vide judgment dated 02.06.2008. The trial Judge had held
that the letter dated 16.01.2002 which was the basis on which the
plaintiff had sought his emoluments, had been decided as being
illegal; this issue had become res-judicata, the said question could
not be re-agitated. The Court had returned a positive finding that
the termination of the appellant was illegal. Emoluments were paid
in lieu thereof. Other evidence which included the termination
letter dated 16.01.2002 (Ex.PW-1/2) had been adverted to. Prayer
of the plaintiff seeking reinstatement was dismissed but he was
held entitled to salary in lieu of notice i.e. compensation of
Rs.20,000/- with interest @ 6% per annum.
5 This finding was reaffirmed by the first appellate court.
6 On behalf of the appellant, it has been submitted that the
findings of the two courts below are perverse for the reason that
the services of the plaintiff could not have been terminated without
giving him an opportunity of being heard. The substantial questions
of law have been formulated on page 11. They read as follows:-
(a) "Whether the probationer employee is entitled for opportunity
to defend himself in the matter in his employment when
terminated without any cause?
(b) Whether the Ld. Courts below should have in all fairness
directed reinstatement to the appellant with continuity of
service specially when the appellant has not committed any
misconduct?"
7 Admittedly even as per the case of the appellant, he was only
a probationer. In terms of his appointment letter dated 09.08.2000
(Ex. PW-1/1) (at page 52 of the paper book), the initial period of
probation would be six months which could be terminated by giving
a 15 day notice. Even after confirmation, the appointment was
terminable by giving a one month notice in writing or pay in lieu
thereof. This is an admitted document. The appellant being on
probation he could have, in terms of his appointment, be
terminated with a 15 days notice. In terms of Clause 6 of Ex.PW-
1/1, even after confirmation, the employee could be terminated
after giving one month notice or pay in lieu thereof. The said notice
had not been given; the Court had arrived at a finding that this
termination was illegal but compensation i.e. compensation of
`20,000/- was deemed to be an adequate and proper compensation.
This discretion has been exercised fairly and judicially in terms of
Ex. PW-1/1.
8 The substantial questions of law formulated in the body of
the appeal as aforenoted make an admission that the appellant was
only a probationer. His termination vide letter dated 16.01.2002
had been declared illegal in the judgment dated 02.06.2008 of Suit
No.639/2006. This issue had since attained a finality. It could not
be raised again in the present suit. No substantial question of law
has arisen. There is no merits in this appeal.
Appeal as also pending application are dismissed in limine.
INDERMEET KAUR, J.
FEBRUARY 15, 2011
A
