Dc Ghose & Co. Pvt. Ltd. vs Vijay Bhardwaj
2011 Latest Caselaw 2803 Del

         * IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Judgment delivered on 25.05.2011

+                          RSA No. 42/2010

DC GHOSE & CO. PVT. LTD.                    ...........Appellant
               Through:            Mr. Pankul Nagpal, Advocate

                       Versus

VIJAY BHARDWAJ                            ........ Respondent
                       Through:    None for respondent.


         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?

         3.      Whether the judgment should be reported in the
                 Digest?



INDERMEET KAUR, J. (Oral)

1. This appeal has impugned the judgment and decree

dated 05.11.2009 which has endorsed the findings of the Trial

Judge dated 24.01.2009 whereby the suit filed by the plaintiff

Vijay Bhardwaj seeking recovery of Rs. 2,59,089/- had been

decreed.

2. The plaintiff had filed the afore-noted suit under Order

XXXVII of the Code of Civil Procedure (hereinafter referred to as

„the Code‟). The application for leave to defend was granted to

the defendant. Suit proceeded as a regular suit. Amounts

claimed by the plaintiff are detailed in para 15 of the plaint.

3. Defence of the defendant was that the amounts claimed

were not his legal dues; certain preliminary objections about

the maintainability of the suit as also about the bar of Section

41 of the Specific Relief Act, 1963 had been taken.

4. The Trial Judge had framed the following four issues:

i) Whether the suit of the plaintiff is not maintainable under Section 9 of the CPC? OPD;

(ii) Whether the suit of the plaintiff is hit by Section 41 and 42 of the Specific Relief Act? OPD;

(iii) Whether the suit of the plaintiff is within the period of limitation? OPP; and

(iv) Relief.

5. Oral and documentary evidence had been led. Suit of the

plaintiff had stood decreed. Findings of the trial judge were

endorsed by the first appellate court.

6. This is second appeal. It had been admitted and on

3.5.2010 following three substantial questions of law were

formulated:

(i) Whether jurisdiction of the Civil Court is barred to entertain a suit filed by the workman for claiming wages etc?

(ii) Whether a contract for private service is enforceable?

(iii) Whether the courts below gave perverse findings on law and facts while decreeing the suit of the Respondent?

6. On behalf of the appellant it had been urged that a civil

suit was not maintainable as the plaintiff being a "workman"

had necessarily to approach the Industrial Tribunal for his

grievances. This submission of learned counsel for the

appellant has been dealt with by the two courts below while

disposing of Issue No. 1 and Issue No. 2. In 1995 5 SCC 75,

Rajasthan State Road Transport Corporation and Another Vs.

Krishna Kant and others; the Apex Court had noted that where

a dispute, even if it is an industrial dispute involves reliefs

based on general law of contract, the civil court has an

alternate jurisdiction. Relevant extract of the judgment is as

under:

"Where the dispute arise from general law of contract, i.e. where reliefs are claimed on the basis of the general law of contract, a suit filed in civil court cannot be said to be not maintainable, even though such a dispute may also constitute an "industrial dispute" within the meaning of Section 2(k) of Section 2-A of the Industrial Disputes Act, 1947."

7. The averments in the plaint show that what the plaintiff is

praying for his legal dues which have arisen from the general

law of contract. Substantial question of law No.1 & No.2 is

accordingly, answered against the appellant.

8. It has further been urged that damages which had been

awarded to the plaintiff were not proved by him; there was no

deposition to the said effect; findings in the impugned

judgment are thus perverse. On the point of limitation also it

has been argued that letter dated 22.8.2003 (Ex. PW1/A) was

outside the period of limitation and could not have been

construed as a valid acknowledgement.

9. This last submission of learned counsel for the appellant

shall be answered first. Ex. PW1/8 is a letter dated 22.08.2003

which had acknowledged the liability qua the plaintiff and the

details of the amount due and payable by the defendant have

been detailed therein; they are to the tune of Rs. 1,75,470/-.

The question of limitation was dealt with while dealing with

issue no. 3; this issue has been decided in favour of the

plaintiff; Ex. PW1/8 had been relied upon to hold that it was a

valid acknowledgement as per the provisions of Section 18 of

the Limitation Act. This finding was returned by the Trial Judge.

The finding on limitation was never challenged by the appellant

before the first appellate court and this is clear from the

grounds of appeal filed before the first appellate court. There

were numerous grounds enumerated in the first appeal; plea of

limitation had not been taken; limitation being a mixed

question of law and fact and not always being a legal

proposition; it cannot be adverted to by this second appellate

court; more so when this was never agitated before the first

appeal court. This argument is answered against the appellant.

10. The impugned judgment had resorted and relied upon Ex.

PW1/3 and Ex. PW1/4 which were the contracts of fresh

employment granted to the plaintiff; Ex. PW1/3 is dated

21.05.2002 and Ex. PW1/4 is dated 22.06.2002. The trial judge

after scrutiny and on appreciation of these documents had

noted that there was no clause contained thereon for

termination of the contract. In the absence thereof, the

contract, if not honoured, would be deemed to have been

broken making the other party entitled for compensation for

the loss caused to him which had arisen in the usual course of

things from such a breach; provisions of Section 73 of Indian

Contract Act had been resorted to by the trial judge. The

impugned judgment had also noted the testimony of PW-1. The

finding returned in the impugned judgment qua this submission

has been extracted hereinunder:

"No dispute has been raised by the appellant company in respect of claims no. 1,3,4,5 and part of claim no. 2 pertaining to the salary of April 2003 to July 2003 in the sum of Rs. 40,00/- which have been allowed by the Trial Court. The dispute raised is regarding claim no. 2 i.e. salary from August 2003 onwards and claims no. 7 and 8 which arises out of re- employment of the respondent after his superannuation. It was submitted by the Ld. Counsel for appellant company that since admittedly, respondent did not work with the appellant company after 21.10.2003, he is not entitled to any salary for the period as also for leave encashment salary.

It is apparent from the letter dated 21.05.2002 by which re-employment was offered to the respondent and which is an admitted document between the parties, that the re- employment of the respondent was for a period

of 2 years w.e.f. 01.04.2002. There is no termination clause contained in this letter but, that does not mean that the re-employment of the respondent could not have been terminated at all by the appellant company. However, it is necessary to examine the circumstances in which the services of the respondent were terminated by the appellant company after his re-employment. The document in this regard is letter dated 16.10.2003 vide which the services of respondent were terminated w.e.f. 21.10.2003. No reason at all has been mentioned in this letter for the premature termination of the contract of services of the respondent. The appellant had sought to allege in the WS that huge losses were incurred by the appellant company on account of the conduct of the respondent after his re-employment. However, the appellant company failed to support these contentions as no evidence at all was led by the appellant company before the trial court. There is no material on record in the form of any document or in the form of any evidence from the appellant company to show that appellant company was constrained to terminate the services of the respondent on account of his bad conduct and irregularities committed by him.

Therefore, only conclusion to be derived is that services of respondent had been terminated illegally and without any cogent ground. The respondent is therefore, entitled to damages from the appellant company for the aforesaid illegal termination of his services in violation of the terms of letter of appointment dated 21.05.2002. The damages claimed by the respondent and awarded by the trial court to him are the remuneration for the full period of contract as mentioned in the aforesaid letter dated 21.05.2002 as well as unavailed leave salary of 29 days to which respondent was entitled. I find no infirmity in the judgment of Ld. Trial Judge in this regard for the reason that if the contract for services of the respondent was not terminated illegally and prematurely by the appellant company, he would have served the

appellant company till 31.03.2004 and he would have got the salary for that period. He also would have been entitled to unavailed leave salary of 30 days as per clause no. 4 contained in letter dated 21.05.2002."

11. There is no perversity in the finding. The plaintiff was

entitled to the amounts as had been granted to him in terms of

the decree. This finding calls for no interference. Substantial

question of law no. 3 is also accordingly answered against the

appellant and in favour of the defendant. There is not merit in

the appeal. Dismissed.

(INDERMEET KAUR) JUDGE MAY 25, 2011 acm