St Johns School & Anr vs Asha Bhan
2012 Latest Caselaw 4257 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Judgment reserved on: 10.07.2012
                                Judgment pronounced on: 19.07.2012

+      RFA 446/2003

       ST. JOHN‟S SCHOOL & ANR.                                  ..... Appellant

                   versus

       ASHA BHAN                                                 ..... Respondent


Advocates who appeared in this case:
For the Appellant: Mr. V.K. Rao with Mr. Biraja Mahapatra, Mr. Manoj V. George
                   and Mr. K. Gireesh Kumar

For the Respondent:Mr. P.K. Aggarwal with Ms. Mercy Hussain

CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

V.K. JAIN, J.

1. This appeal is directed against the judgment and decree dated 17.03.2003,

whereby a decree for recovery of Rs.8,81,667/- with proportionate costs and

pendente lite and future interest @ 10% per annum was passed in favour of the

respondent and against the appellants. The facts giving rise to filing of this appeal

can be summarized as under:-

The respondent/plaintiff was employed as a Nursery/KG teacher with

appellant No. 1 St. John‟s School, which is being run and managed by appellant

No. 2 Delhi Mar Thoma Church Society. The services of the plaintiff/respondent

were terminated with effect from 01.10.2001. The case of the plaintiff/respondent

is that though her salary was Rs.7331/- per month, the appellants/defendants were

wrongfully and illegally deducting a sum of Rs 2706/- per month from her salary

and when she protested against such deduction, the defendants/appellants

threatened to terminate her services. A sum of Rs 64,896/- was deducted from her

salary in this manner, in about 24 months. This was also her case that on a strong

protest by her in July-August, 2001, the defendants/appellants offered her a

package of 05 month salary in case she submitted her resignation. They also

threatened her to resign or else they would terminate her services, in case the offer

was not accepted by her. According to the plaintiff/respondent, she refused to

resign as a result of which she was not allowed to take classes with effect from

01.08.2001 and subsequently her services were terminated with effect from

01.10.2001. She accordingly claimed Rs 64,896/- being the amount wrongfully

deducted from her services, Rs 21,993/- as arrears of salary, Rs 7,18,438/- on

account of damages for illegal and wrongful termination of her services and Rs

50,000/- on account of damages for mental sufferings.

2. The defendants/appellants filed written statement contesting the suit. They

took a preliminary objection that the contract of service, being personal in nature,

was not enforceable. They also claimed that the suit was barred under Order II

Rule 2 of Code of Civil Procedure since damages were not claimed by the

plaintiff/respondent in an earlier suit which she had withdrawn. As regards

deductions made from the salary of the plaintiff/respondent, they alleged that the

plaintiff/respondent was making a voluntary donation of Rs 2706/- per month and

there was no pressure on her to make such donation. They also disputed their

liability to pay any arrears of amount and also denied having caused any mental

agony to the plaintiff/respondent. They also claimed that the plaint did not disclose

any cause of action.

3. The following issues were framed by the learned Trial Judge on the

pleadings of the parties:-

i. Whether the plaintiff is entitled to recover Rs 64,902/- on account of wrongful deduction from her salary? OPP

ii. Whether the plaintiff is entitled to recover Rs 21,993/- on account of arrears of unpaid salary? OPP

iii. Whether the plaintiff is entitled to Rs 7,18,438/- on account of damages for illegal termination of her services? OPP

iv. Whether the plaintiff is entitled to recover Rs 50,000/- on account of damages for causing mental torture? OPP

v. Whether the plaintiff is entitled to recover interest from the defendants? If so, at what rate, on what amount and for what period? OPP

vi. Whether the claim of the plaintiff is liable to be rejected under Order 7 Rule 11 CPC for disclosing no cause of action? OPD

vii. Whether the suit of the plaintiff is barred under Order II Rule 2 CPC? OPD

viii. Relief.

4. As far as salary for the month of August, 2001 is concerned, as noted by the

learned Trial Judge even in the written statement, the defendants/appellants did not

dispute their liability to pay the said amount. This liability has not been disputed

even in the evidence produced by the appellants/defendants. As regards salary for

the month of September, 2001, the case of the defendants/appellants is that the

plaintiff/respondent had not worked during that month. In her affidavit by way of

evidence, the plaintiff/respondent stated that since 01.09.2001, she was not allowed

to enter the school and mark her attendance. She, however, admitted that she had

attended the school on 01.09.2001. In rebuttal, DW-1 Shri A.J. Phillip, Honorary

Secretary of appellant No. 2-Society and DW-2 Mr P.S. Jolly, Accountant/Office

In-charge of appellant No. 1--School have stated that the plaintiff/respondent

attended the school only for one day in the month of September, 2001 and that they

never disallowed her to enter the school premises in the month of September, 2001.

The plaintiff/respondent has, in her deposition, claimed that the gates of the school

were closed after 01.09.2001. This, however, has been repudiated by DW-1 and

DW-2 who stated that the gates remained open for everyone in the month of

September, 2001.

The learned Trial Judge has awarded salary for the month of September,

2001 to the plaintiff/respondent primarily on the ground that the averment by her in

para 7 of the plaint that since 01.09.2001 she was not allowed to enter the school

and mark her attendance was not specifically denied by the defendants/appellants

and, therefore, amounts to admission of the averment made by her. I, however, find

that the observation made by the learned Trial Judge is factually incorrect. In para

7 of the written statement, it has been specifically denied that the

plaintiff/respondent was not allowed to enter the school from 01.09.2001. Hence,

there is absolutely no admission of the averment made by the plaintiff/respondent

in this regard.

No notice or protest letter by the plaintiff/respondent to the

defendants/appellants, claiming therein that she was not allowed to attend the

school in the month of September, 2001. Had the plaintiff/respondent not been

allowed to enter the school after 01.09.2001, she would at least have lodged a

written protest with the school in this regard. That, however, was not done. Even

otherwise, it is difficult to accept that the gate of the school remained closed in the

month of September, 2001. Admittedly, more than 250 children were studying in

the school in September, 2001 and a number of teachers were also working in the

school at that time. Had the gates of the school been closed, neither those teachers

nor the students would have been able to attend the school. This is not the case of

the plaintiff/respondent that though the gates were opened for students, other

teachers/staff members and visitors, she was prevented by the Security Guard or

Gate Keeper from entering the school. In these circumstances, it is difficult to hold

that the plaintiff/respondent was entitled to salary for the whole of the month of

September, 2001. In my view, since she attended the school only on 01.09.2001,

she would be entitled to 01 day‟s salary in the month of September, 2001.

5. It is an admitted position that a sum of Rs 6490/- was deducted from the

salary of the plaintiff/respondent. The deduction was made at the rate of Rs 2706/-

per month with effect from July, 1999. The case of the appellants/defendants is

that this amount was paid by the plaintiff/respondent as voluntary donation,

whereas the case of the plaintiff/respondent is that since the appellants/defendants

had threatened to terminate her services in case she did not agree to the said

deduction from her salary, she had no option, but to succumb to this pressure from

them. Admittedly, the salary of the plaintiff/respondent at the relevant time was Rs

7331/- per month. It is difficult to accept that a person earning such a meager salary

would make voluntary donation to the extent of more than 1/3 of her salary and that

too for a consecutive period of about 24 months. Yet another circumstance which

rules out this deduction being a voluntary donation is the odd amount deducted

every month from the salary of the plaintiff/respondent. If a person wants to make

a voluntary donation, he/she would normally contribute a flat amount and not an

odd amount such as Rs 2706 per month. The case of the plaintiff/respondent is that

since she protested vehemently in July/August, 2001, against this involuntary

deduction from her salary, she was asked to either resign or face termination and

when she refused to resign, her services were terminated. In these circumstances, I

see no reason to interfere with the finding of the learned Trial judge that the

plaintiff/respondent was entitled to recover Rs 64902/- being the amount illegally

deducted from her salary. The issue has, therefore, rightly been decided in favour

of the plaintiff/respondent and against the defendants/appellants.

6. It has been alleged in the written statement that the suit having been filed

without cause of action is liable to be rejected under Order VII Rule 11 of the Code

of Civil Procedure. I fail to appreciate how it can be said that the suit does not

disclose any cause of action. The case of the plaintiff/respondent is there her

services were terminated, there was unlawful deduction from her salary and she

had not paid salary for the months of August and September, 2001. All these

allegations disclosed sufficient cause of action to file a suit for recovery of money.

The issue has, therefore, right been decided in favour of the plaintiff/respondent

and against the defendants/appellants.

7. It was contended by the learned counsel for the defendants/appellants that

the services of the plaintiff/respondent having been terminated before she filed the

earlier suit for injunction, the subsequent suit for recovery of money being based

on the same cause of action, is hit by Order II Rule 2 of Code of Civil Procedure.

Admittedly, the plaintiff/respondent, while withdrawing the previously

instituted suit, had obtained permission of the Court to file a fresh suit on the same

cause of action. A perusal of the order dated 06.08.2002 would show that the

plaintiff/respondent stated that she did not want to pursue the suit in the present

form and wanted to withdraw the same with liberty to file a fresh suit. The Court,

while dismissing the suit as withdrawn, directed that she may file a fresh suit if it is

maintainable according to law and subject to the provisions of Limitation Act. The

suit for recovery of money is otherwise maintainable in law and having been filed

on 07.08.2002, is within the prescribed period of limitation.

Order XXIII Rule 3 of the Code of Civil Procedure, to the extent it is

relevant, provides that where the Court is satisfied that the suit must fail by the

reason of some formal defect, or there are sufficient grounds for allowing the

plaintiff to institute a fresh suit for the subject-matter of a suit, it may, grant the

plaintiff, permission to withdraw such suit, with liberty to institute a fresh suit in

respect of the subject-matter of such suit. The subject-matter is nothing, but, cause

of action, to institute the suit. The consequence of a suit being withdrawn and

permission being granted by the Court to file a fresh suit on the same cause of

action is as if the first suit was never filed. There is no decree passed in such a case,

since withdrawal of the suit does not come in the definition of decree given in

Section 2(2) of the Code. Therefore, there would be no scope for applicability of

Order II Rule 2 of the Code of Civil Procedure to such a fresh suit which is filed

consequent to the permission granted by the Court at the time of withdrawal of the

earlier suit. Any relief which is not claimed in the withdrawn suit can be claimed in

the fresh suit, even if it is based on the same cause of action. The issue has rightly

been decided against the defendants/appellants.

The case of the appellants/defendants is that as private employers, they were

entitled to terminate the services of the plaintiff/respondent at any time, without

giving any reason and therefore plaintiff/respondent was not entitled to any

damages on account of termination of her services.

9. It was held by the Supreme Court in Vaish Degree College, Shamli & Ors.

v. Lakshmi Narain & Ors. AIR 1976 SC 888 that a contract for personal service

cannot be specifically enforced and a court normally would not give a declaration

that the contract subsists and such an employee even after having been removed

from service cannot be deemed to be in service against the will and consent of the

employer. This rule is subject to three well-recognised exceptions:

(i) where a public servant is sought to be removed from service in contravention of

the provisions of Article 311 of the Constitution of India; (ii) where a worker is

sought to be reinstated on being dismissed under the Industrial Law; and (iii) where

a statutory body acts in breach or violation of the mandatory provisions of the

statute.

In Pearlite Liners (P) Ltd. v. Manorama Sirsi (2004) 3 SCC 172, the

Supreme Court observed that a case of private employment would normally be

governed by the terms of the contract between the parties. In Sanjay Gupta (Dr.) v.

Shroff's (Dr.) Charity Eye Hospital 2002 VII AD (Delhi) 580, this Court held that

if termination of services of the appellant was illegal, his remedy was to file a suit

for damages.

In N.P.Mathai v. The Federal Bank Ltd. (decided on 6th November, 1992

by High Court of Kerala) MANU/KE/0322/1992 the appellant was Manager in

Trivendrum Branch of the defendant bank. His services were terminated by the

bank and one month‟s salary in lieu of notice was given to him while terminating

his service. The case of the appellant was that the termination order was a penal

action which had not preceded by an inquiry and therefore was invalid. This was

also his contention that the contract of service did not empower the defendant to

terminate his services without sufficient reasons and his services were to endure till

superannuation. The appellant sought a declaration that he continued to be in

service. Alternatively, he claimed damages by way of compensation for wrongful

termination of his services. He was 44 years old at the time when his services were

terminated and had he continued in service, he would have superannuated on

reaching the age of 60 years. However, before the High Court, the appellant did not

press for reinstatement and the compensation claimed by him was also reduced.

The defendant however, contended that it had got the right to terminate the services

of the plaintiff under Rule 28 and the termination was in accordance with said

Rule. This was also the case of the plaintiff before the Court that the action taken

by the defendant was without bona fides and he had been removed from service

because he was a stumbling block in the way of promotion and prospects of brother

of Chairman of the defendant bank. The defendant contended that the principles of

natural justice could not be imported in the matter of enforcing the contract and

were not applicable to termination of a contract by one of the parties to the

contract. The High Court, on an analysis of the facts and circumstances of the case,

was of the view that the plaintiff‟s services were terminated for an alleged

misconduct and the termination order was passed to avoid an inquiry which the

bank was bound to do under its own Code and therefore was in reality, a

disciplinary action. The Court therefore directed payment of compensation to the

plaintiff for a wrongful termination of his services.

10. In the case before this Court, the appointment letter issued to the

plaintiff/respondent to the extent it is relevant reads as under:-

"On behalf of the Executive Committee of the Society I am to inform you that you have been selected for the post of Teacher effective from the 14th day of September, 1983 on a consolidated salary of Rs.300/- P.M. in the pay scale of Rs.300-10-350-EB-20-550-25-625.

2. Your appointment in the first instance, shall be probationary for a period of 12 months, subject to your services being found satisfactory, the same will be made regular."

It would thus be seen that there was no clause in the appointment letter for

terminating the services of the plaintiff/respondent. The letter whereby the services

of the plaintiff were terminated w.e.f. 1st October, 2001 also does not indicate any

contractual provision entitling the defendants/appellants to terminate the services of

the plaintiff/respondent. In the context of retrenchment under Sec. 25F of Industrial

Disputes Act, it was held in (2000) III LLJ 713 (MP) that in the absence of a clause

in the agreement or letter of appointment for termination of service, retrenchment

was not permissible. In any case, as far as the case before this Court is concerned,

though the appointment was not for a fixed period or till the plaintiff/respondent

reached a particular age, the use of the words „will be made regular‟ in the letter of

appointment clearly indicates that the appointment was to subsist till a teacher

appointed on regular basis would retire from the service of the school. In the

absence of any contractual power to the defendants/appellants to terminate the

services of the plaintiffs/respondents she was entitled to continue in service till the

normal age of superannuation of the teachers employed by the

defendant/appellants. In case of any pre-mature termination of her services, the

respondent/plaintiff was entitled to appropriate damages though she could not have

sought enforcement of the contract under which she was employed by the

appellants/defendants.

11. The case of the plaintiff is that her services were terminated since she had

vehemently protested against the involuntary deduction from her salary towards

donation and her refusal to accept the offer of VRS extended to her by the

defendants/appellants. In reply, this is not the plea taken by the

appellants/defendants that they had, in their wisdom, terminated the services of the

plaintiff/respondent and they were not bound to disclose the reasons which led to

such an action being taken by them. Their case is that since they were seeking

recognition of the school, they were required to comply with the conditions

imposed by the Directorate of Education for granting recognition and since the

plaintiff/respondent, being more than 45 years old was overage, she was not

qualified to be appointed as a teacher, her continuance in service, being contrary to

the conditions imposed by the Directorate of Education, would have resulted in

recognition being denied to the school. The onus was upon the

appellants/defendants to prove that the Directorate of Education had, imposed a

condition that the recognition to the school would be granted only if the services of

those teachers who are overage as per the eligibility criteria laid down by it, were

dispensed with. No document was, however, produced by the defendant/appellants

to prove any such condition on the part of the Directorate of Education. No official

from the office of Directorate of Education was produced to prove such a

condition. As noted earlier, DW1 Sh. A.J. Philip and DW2 Sh. P.S. Jolly, are the

only witnesses produced by the defendants. Both of them are private witnesses

being the office bearers of the appellants. According to DW1, A.J. Philip, two

officers from the Directorate of Education had orally told them that two teachers,

including the plaintiff/respondent, were overage though they did not give in writing

to them in this regard. Since neither the names of those officials were given nor

were they produced in the witness box, no reliance can be placed upon this part of

deposition of DW1. According to DW1, Govt. regulation was that on the date of

application for recognition, a lady teacher should not be 45 years of age and the

plaintiff/respondent was more than 45 years of age at the time they applied for

recognition. However, no such regulation was produced during trial. Oral

deposition of DW1 with respect to regulation referred by him cannot be accepted,

particularly when neither any official from Directorate of Education was produced

nor any communication stipulating such a condition was filed by the

defendants/appellants. It would only be appropriate to take note of Rule 50 of Delhi

Education Rules, 1973 at this stage. This Rule prescribes the conditions for

recognition of a private school. I need not burden the record by reproducing those

conditions, suffice it to say that there is no condition that a private school seeking

recognition should not have a serving teacher who is more than 45 years old. In

these circumstances, I have no hesitation in holding that the appellants/defendants

failed to prove that the Directorate of Education had made it a pre-requisite

condition for granting recognition to the appellant school that none of the teachers

working in the school at the time of seeking recognition should be more than 45

years of age.

12. Yet another reason given by the appellants/defendants for dispensing with

the services of the plaintiff/respondent is that since the number of teachers in the

school had declined quite substantially, the teachers in the school had become

surplus and therefore, 11 of them had left the service during the year 2001. In his

cross examination, DW1 Sh. A.J. Philip stated that out of 21 teachers working in

the school, 11 had resigned and the services of two teachers were terminated,

thereby leaving nine working teachers in the school, all of whom were permanent.

He admitted that since October 2001 they had employed four teachers, though he

claimed that they were employed for intermittent period. He however admitted that

one Mrs. Reena Sharma who started working from 23.8.2001 was continuing till

date. Mrs. Saroj Sabharwal, who joined the school on 1.8.2001 worked till

8.8.2001, and thereafter she again joined work on 22.4.2002. He admitted that Mrs.

Shaila Verghese who joined school on 20.9.2001 and Mrs. Saraswati who joined on

10.7.2002 were still working. I fail to appreciate how it can be said that the

respondents had become surplus, when the school engaged two more teachers

namely Reena Sharma and Mrs. Shaila Verghese just before terminating her

services. Moreover, this is not the case of the appellants/defendants that they had

followed the principle of last come and first go in terminating the services of the

alleged surplus teachers. The principle to be adopted in such cases ordinarily is that

the person who joined services last, goes first. No particular reason has been given

by the defendant/appellant for engaging two teachers, while almost simultaneously

dispensing with the services of the plaintiff/respondent. In these circumstances,

there is no escape from the conclusion that the justification given by the

appellants/defendants for terminating the service of the plaintiff/respondent is

absolutely sham and frivolous. It would not be unsafe to presume in such

circumstances that the services of the plaintiff/respondent were terminated not on

account of her being overage or surplus, but on account of her resisting continued

involuntary deduction from her salary. The termination of her service, therefore,

was clearly a mala fide act with a view to punish her on account of her refusing to

accept a reduced salary. Even if it is presumed that the appointment of the

plaintiff/respondent was not for a fixed term or till her reaching a particular age, it

can hardly be disputed that an employee termination of whose services is actuated

by mala fide would be entitled to appropriate damages though he/she cannot seek

enforcement of the contract. A contrary view would give a handle to an

unscrupulous private employer to take vengeance on the employees, who refuses to

be party to an illegal or unlawful act on the part of the employer and therefore

would be against the public policy. The right of an employer to terminate the

service of an employee, who does not enjoy any statutory protection on account of

his unsuitability to the job entrusted to him on account of his having become

surplus, is altogether different from an action, which is actuated by malafide and

therefore unsustainable in law.

13. The next question which comes up for consideration is as to what should be

the quantum of damages which should have been awarded to the

plaintiff/respondent on account of pre-mature termination of her services. No

evidence has been led by the parties to prove the normal date of superannuation of

a teacher in the school. The appointment letter issued to the plaintiff/respondent did

not stipulate the age of her retirement. The defendants/appellants did not lead any

evidence to prove at what age the teacher employed in their school were normally

superannuating. The retirement age of the teachers employed by them being a fact

exclusively in the knowledge of the defendants/appellants, the onus was upon them

to produce such evidence. That, however, was done by the defendants/appellants.

The case of the plaintiff/respondents is that the age of her retirement from service

was 60 years. In the absence of any evidence to the contrary from the

defendants/appellants, I have no hesitation in accepting that the normal age of

superannuation of teachers employed in the appellants‟ school was 60 years.

It is not in dispute that had the plaintiff/respondent continued in service till

she was 60 years old, even without taking any increment, Dearness Allowance or

promotion etc. into consideration, would have received Rs.7,18,438/- as salary. The

learned trial Judge has awarded the whole of that amount as damages.

14. In S.S. Shetty v. Bharat Nidhi Ltd. (1958) SCR 442, the appellant before the

Supreme Court was discharged from service on the ground that he had become

surplus. An industrial dispute was thereupon referred by the Central Government to

the Industrial Tribunal at Calcutta for adjudication. The order of discharge of the

appellant was held to be illegal and he was directed to be reinstated with wages

from the date of discharge. The respondent however, failed to implement the

decision of the Labour Appellate Tribunal within the prescribed period. Thereupon,

the appellant before the Supreme Court claimed a sum of Rs. 47,738/- from the

respondent as compensation. The Tribunal awarded a sum of Rs.1,000/- to him.

The appeal filed by him having been dismissed by Labour Appellate Tribunal, he

approached the Supreme Court by way of Special Leave Petition. The Supreme

Court, after considering all the circumstances of the case, computed the benefit of

reinstatement at Rs.12,500/- and awarded that amount to the appellant, during the

course of judgment, Supreme Court, inter alia, observed as under:-

"The position as it obtains in the ordinary law of master and servant is quite clear. The master who wrongfully dismisses his servant is bound to pay him such damages as will compensate him for the wrong that he has sustained. "They are to be assessed by reference to the amount earned in the service wrongfully terminated and the time likely to elapse before the servant obtains another post for which he is fitted. If the contract expressly provides that it is terminable upon, e.g., a month‟s notice, the damages will ordinarily be a month‟s wages..................No compensation can be claimed in respect of the injury done to the servant‟s feeling by the circumstances of his dismissal, nor in respect of extra difficulty of finding work resulting from those circumstances. A servant who has been wrongfully dismissed must use diligence to seek another employment, and the fact that he has been offered a suitable post may be taken into account in assessing the damages." (Chitty on Contracts, 21st Ed., Vol. (2), p.559 para. 1040).

If the contract of employment is for a specific term, the servant would in that event be entitled to damages the amount of which would be measured prima facie and

subject to the rule of mitigation in the salary of which the master had deprived him. (Vide Collier v. Sunday Referee Publishing Co., Ltd.). The servant would then be entitled to the whole of the salary, benefits etc. which he would have earned had he continued in the employ of the master for the full term of the contract, subject of course to mitigation of damages by way of seeking alternative employment.

Such damages would be recoverable by the servant for his wrongful dismissal by the master only on the basis of the master having committed a breach of the contract of employment. If, however, the contract is treated as subsisting and a claim is made by the servant for a declaration that he continues in the employ of the master and should be awarded his salary, benefits, etc., on the basis of the continuation of the contract, the servant would be entitled to a declaration that he continues in the employ of the master and would only be entitled to the payment of salary, benefits, etc., which accrued due to him up to the date of the institution of the suit."

In S.P.Bhatnagar v. Indian Oil Corporation 1994 III AD(Delhi) 898, the

appellant was placed under suspension and was dismissed from service on the basis

of finding recorded in a departmental inquiry held against him. A suit was filed by

him challenging his dismissal and seeking reinstatement or in the alternative

Rs.50,000/- as damages for wrongful dismissal. The learned Additional District

Judge awarded a sum of Rs.2250/- to him as damages. He filed an appeal before

this Court and during the pendency of the appeal he filed an application for

additional evidence enhancing his claim for damages from Rs.50,000/- to

Rs.25,32,750/-. The application was however, dismissed. The Division Bench

which disposed of the appeal held that the inquiry held against the plaintiff was bad

in law and the finding arrived at therein was perverse based on no evidence. It was

held that he was entitled to declaration that he continued in service till he attained

the age of superannuation on 28th July 1994 and to full back-wages and other

benefits from the date of dismissal. The Court directed the defendant to compute

them along with all retirement benefits including pension etc. A decree in those

terms was passed accordingly. In an appeal filed by the respondent, it was agreed

that the plaintiff was not entitled to reinstatement but was entitled to get damages

on the ground of wrongful dismissal in view of the fact that he had already attained

the age of superannuation. Supreme Court directed the parties to lead evidence, to

determine quantum of damages. After remand by Supreme Court the plaintiff

sought a decree for Rs.71,46,268/-. The Division Bench noted that as per the reply

affidavit of the defendant/respondent the plaintiff was entitled to a sum of

Rs.605142.27 towards pay and allowance. This figure was arrived at on the basis of

the revised pay on account of revision of the pay scales firstly on 1.8.1974 and then

on 1.8.1882. The aforesaid amount was awarded by this Court to the plaintiff as

damages. His claim for compensation for harassment and mental torture was

negated by this Court. While doing so, this Court relied upon the decision of

Supreme Court in S.S.Shetty (supra) wherein it was held that no compensation can

be claimed in respect of injury done to the servant‟s feelings by the circumstances

of the dismissal.

I, however, notice that there has been some shift in the approach of the Apex

Court, with respect to payment of back wages, in case the dismissal of the

employee from service is found to be bad in law. In P.G.I of Medical Education

and Research Chandigarh v. Raj Kumar (2001) 2 SCC 54, the Supreme Court

observed as under:

"Payment of back-wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no straight-jacket formula can be evolved, though, however, there is statutory sanction to direct payment of back-wages in its entirely. As regards the decision of this Court in Hindustan Tin Works (P) Ltd. be it noted that though broad guidelines, as regards payment of back-wages, have been laid down by this Court but having regard to the peculiar facts of the matter, this Court directed payment of 75% back- wages only."

In U.P. State Brassware Corporation Ltd. & Anr. v. Udai Narain Pandey

AIR 2006 SC 586, the Supreme Court inter alia observed as under:

"A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an industrial court shall lose much of its significance. The changes brought about by the subsequent decisions of this Court probably having regard to the changes in the policy decisions of the

government in the wake of prevailing market economy globalization, privatization and outsourcing is evident."

In Allahabad Jal Sansthan v. Daya Shankar Rai and Anr. (2005) IILLJ

847 SC, the Supreme Court inter alia observed as under:

"We have referred to certain decisions of this Court to highlight that earlier in the event of an order of dismissal being set aside, reinstatement with full back-wages was the usual result. But now with the passage of time, it has come to be realized that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all, for a period that was spent unproductively, while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed. It is necessary for us to develop a pragmatic approach to problems dogging industrial relations. However, no just solution can be offered but the golden mean may he arrived at."

In Kendriya Vadyalaya Sangathan & Anr. v. S.C.Sharma (2005) IILJ 153

SC, the Supreme Court granted only 25% of total back-wages to the respondent. In

Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya & Anr. (2002) IILLJ 1156

SC, the Supreme Court awarded 50% of the back-wages till the date of

reinstatement of the respondent. In U.P. State Electricity Board v. Laxmi Kant

Gupta 2009 LLR 1, the Supreme Court referring to its decision in U.P. State

Brassware Corporation Ltd. (supra) and Haryana State Electronics Development

Corporation v. Mamni AIR 2006 SC 2427 inter alia observed as under:

"Thus it is evident that there has been a shift in the legal position which has been modified by this Court and now

there is no hard and fast principle now that on the termination of service being found to be illegal, the normal rule is re-instatement with back-wages. Compensation can be awarded instead, at the discretion of the Labour Court, depending on the facts and circumstances of the case."

The proposition of law, which emerges from these judgments, is that even if

the dismissal or termination of an employee from service is illegal, he is not

entitled to whole of the back-wages as a matter of right, and the Court needs to

award a suitable compensation after considering all the facts and circumstances of

the case before it.

15. This also cannot be disputed that the plaintiff/respondent should have tried to

mitigate her loss either by taking alternative employment or generating alternative

sources of income. As regards the plaintiff/respondent taking up another

employment as a teacher, this is appellants‟ own case that the defendant/respondent

was overage for being employed as a teacher in a school. Therefore, she could not

have got appointment as a teacher. It is, however, difficult to dispute that being a

qualified teacher, the plaintiff/respondent could have taken up assignment such as

home tuitions to earn her livelihood. There is no evidence of any such attempt

having been made by the plaintiff to mitigate her damages either by exploring

alternative avenues of employment or by trying to take home tuitions. She could

also have sought appointment in a private coaching centre. There is no evidence of

that option having been explored by her.

16. Taking into consideration all the facts and circumstances of the case, I am of

the view that the ends of justice would be met if the plaintiff/respondent is awarded

an all inclusive compensation/damages amounting to Rs.3,50,000/- on account of

wrongful termination of her services.

17. Thus, the plaintiff/respondent is entitled to recover the following amounts

from the defendants/appellants:

(i) Rs.64,902/- being the amount wrongfully deducted from her salary

(ii) Rs.7,331/- towards arrears of salary for August, 2001.

(iii) Rs. 244/- towards salary of one day in September, 2001 and

(iv) Rs.3,50,000/- being the consolidated damages on account of wrongful

termination of her services, thereby making a total of Rs.4,22,477/-.

The issues are decided accordingly.

18. For the reasons stated hereinabove, a decree for recovery of Rs.4,22,477/-

with proportionate costs and pendente lite and future interest @ 6% per annum is

passed in favour of the plaintiff/respondent and against the defendants/appellants.

The appeal stands disposed of. Decree sheet be prepared accordingly. TCR be sent

back.

V.K. JAIN, J

JULY 19, 2012bg/ „raj‟