Vidha Lal vs Kathak Kendra Thr Its Director & ...
2013 Latest Caselaw 3513 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 956/2012 & CM 2256/2013 (Stay)

%                                                           8th August, 2013

VIDHA LAL                                           ......Petitioner
                          Through:       Mr. Sunder Khatri, Adv.


                          VERSUS

KATHAK KENDRA THR ITS DIRECTOR & ANR.      ..... Respondents

Through: Ms. Meenal Kashyap, Adv. for R-1.

Mr. Sarfaraz Khan, Adv. for R-2.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition, petitioner Ms. Vidha Lal seeks quashing of the

impugned order dated 31.1.2012 whereby petitioner's services were

terminated.

2. It is an undisputed fact that petitioner was a contractual employee.

The original contract of employment is dated 4.11.2010. That contract was

for a period of one year and which was continued thereafter. Petitioner was

a Kathak Dancer. In terms of the contract, petitioner's services could be

terminated by three months' notice without assigning any reason and one

month's notice in case petitioner is found guilty of an act or omission or

mis-conduct during the period of her employment.

3. A troupe of dancers was led to Spain by one Smt. Geetanjali

Lal and who was mother-in-law of the petitioner. Petitioner was a part of the

troupe. During the tour to Valladolid, Spain w.e.f 11th to 13th Nov. 2011,

there were serious allegations against the troupe members, including the

petitioner, and, which showed India and Indians in a very poor light. This

was so specifically complained by the Ambassador of India to Spain, and

which complaint records the following facts:-

(i) In the hotel in which the troupe stayed, various guests complained that

the troupe members were knocking the doors of the other rooms where other

guests of the hotel were staying and also were making telephone calls to

such other rooms. These incidents continued late into the night and

therefore complaints were made by the clients/guests in the adjoining rooms

with respect to the Indian troupe. As a result of the disturbance caused by the

troupe members, not only the night receptionist was harassed but other

clients of the hotel also could not rest.

(ii) One of the troupe members was found urinating from one of the

rooms of the 4thfloor of the hotel to the street below.

(iii) As a result of mis-behaviour of the troupe members, the hotel had to

compensate the other guests with other services or discounts, which affected

both their income and their reputation.

(iv) There were huge arguments among the group members whereby

scenes were created including of shouting and there even took place a fist

fight among two of the members of the group. As a result of the above, the

Ambassador had to go to the hotel for giving a warning to the members of

the troupe.

(v) Various delays sometimes running even to two hours was caused by

the group in reaching the hotel as a result of which there were difficulties of

changing the restaurant time tables for the group to have lunch or dinner.

(vi) There were unnecessary requests for change of food items of the

menu.

4. In view of the above stated facts, the petitioner's contractual

appointment was terminated by the impugned order.

5. Before me, counsel for the petitioner has argued three points. First point

is that the termination of service is illegal because one month's notice is

required to be given which was not given. The second argument is that two

of the troupe members were again re-engaged but the petitioner has not been

re-engaged. The third point is that no opportunity has been given to the

petitioner before the contractual services were terminated.

6. Before proceeding to discuss the points urged on behalf of the

petitioner, it would be necessary to refer to the ratio as laid down by the

Supreme Court in the case of S.S. Shetty Vs. Bharat Nidhi Ltd., AIR 1958

SC 12 . In this judgment Supreme Court has held that even if services are

illegally terminated, at best, the aggrieved employee will only have a right to

claim damages for the notice period. The relevant paras of the said

judgment read as under:-

"12. 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 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 feelings 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 Edn., Vol (2), p. 559 para 1040).

13. 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., 1940-4 All. E.R.234 at p. 237(A). 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."

(underling added)

7. Therefore, even if the services of a contractual employee such as the

petitioner was wrongly terminated, at best, the only entitlement of the

petitioner will be to damages, and which in this case will be either one

month's salary if there is mis-conduct or three months' salary if there is no

misconduct.

8. There are disputed questions of fact as to whether or not petitioner

was guilty of misconduct, but at the same time the letter of the Ambassador

of India to Spain cannot be overlooked because it contained very serious

allegations against the troupe members as stated above. In any case, the

issue would be that even if there is illegal termination of contractual

services, the petitioner will only be entitled to damages i.e either

emoluments of one month or emoluments of three months and nothing

further.

9. In a case like the present, the issue where contractual services can be

terminated with notice, issue of reinstatement surely will not arise. Also, the

issue cannot be of following the principles of natural justice in such a

contractual matter because the services could always be terminated without

assigning any reason by giving three months' notice or three months' notice

pay. In any case the principles of natural justice are not hide bound rules

and they have to be complied with as per respective facts of each particular

case and petitioner's representations have already been considered, as stated

in the counter-affidavit as under:

".....acts complained of were viewed very seriously by the authorities and communicated vide their two emails dated 9.01.2012 to Kathak Kendra. Following which the Competent Authority of the Akademi the Chairman, directed an internal fact finding enquiry be conducted about the incident in Spain. Pending enquiry Ms. Vidha Lal was placed under suspension, with effect from 18.01.2012 along with other members of the troupe. All the members of the Groups, including, Ms. Vidha Lal, were heard in person, individually, by the Director Kathak Kendra in the presence of Smt. Madhu Joshi, Repertory Manager, The report of the inquiry was submitted to the competent authority of Sangeet Natak Akademi finding the petitioner (and other similarly placed contractual dancers) guilty of gross misconduct while on official duty and causing embarrassment by her behavior to the Indian officials and bringing disgrace to the Country. The competent authority on receiving the report, terminated the services of the petitioner (and other similarly placed contractual dancers) with effect from 31.01.2012."

I therefore, do not find that there arises any issue of violation of

principles of natural justice in the present case.

10. So far as the argument urged on behalf of the petitioner that others

have been again appointed as Kathak Dancers by the respondent no.1, this

argument cannot have any substance because it is informed by the counsel

for the respondent no.1that the two persons who are subsequently appointed,

they have been appointed pursuant to a regular recruitment process.

11. In view of the above, no relief can be granted to the petitioner in the

present case. In case, the petitioner feels aggrieved, the petitioner can only

file a suit for recovery of money, either for one month's salary or three

months' salary in an appropriate civil court.

12. The writ petition is accordingly dismissed, leaving the parties to bear

their own costs.

AUGUST 08, 2013                                 VALMIKI J. MEHTA, J.
ib