Mrs. Malini Rajendran vs Federation Of Hotel & Restaurant ...
2017 Latest Caselaw 3297 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.621/2017

%                                                        17th July, 2017

MRS. MALINI RAJENDRAN                                     ..... Appellant
                  Through:               Mr. Manav Kumar, Advocate
                                         with Ms. Nupur, Advocate.
                          versus

FEDERATION OF HOTEL & RESTAURANT ASSOCIATION OF
INDIA & OTHERS                   ..... Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal under Section 96 of Code of

Civil Procedure, 1908 (CPC) impugns the judgment of the trial Court

dated 28.3.2017 by which the trial court denied the relief of specific

performance of continuation of services of the appellant/plaintiff with

the respondent no.1/defendant no.1 and instead only granted three

months salary as damages for illegal termination of services. The

prayer clause of the plaint reads as under:-

"(a) pass a decree in favour of the plaintiff and against the defendants directing them to pay damages of an amount of Rs.24,00,000/- as stated above for the reasons mentioned therein;

(b) pass an order that the plaintiff will resume her work immediately and she will be paid her emoluments from April 2009 to December 2009 based on appropriate salary and allowances with applicable increments that she would have drawn from December 15th 2008 as per terms and conditions of her contract and the rules applicable in this regard.

(c) pass an order for the defendants to pay at least 50% of the suit amount to the plaintiff or in Court before continuing with the defense of the suit.

(d) pass an order awarding interest @ 18% on the amounts due and payable to the plaintiff from the date as and when the same became due to her from January 2007 till the date of payment.

(e) pass an order for the costs of the suit be awarded in favour of the plaintiff and against the defendants.

(f) pass such other or further orders, as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case."

2. The letter of appointment of the petitioner dated

3.10.2006 contains admittedly a Clause 11 which entitles termination

of service by three months notice or payment of three months salary in

lieu thereof. Clause 11 of the letter of appointment reads as under:-

"11. Your services may be terminated at any time by giving three months notice or three months basic salary in lieu thereof. You could also resign giving a notice of three months or payment of three months basic salary in lieu thereof."

3. Services of the appellant/plaintiff were terminated by

letter dated 14.12.2006 and which letter dated 14.12.2006 reads as

under:-

"FR/Admin/97/2006 Mrs. Malini Rajendran, 110, Shihka Apartments,

48 I.P. Extensions, New Delhi 110092 Dec 14th, 2006 Dear Ms. Malini, It is with reference to our letter no.FR/Admn/97 dated 11th December 2003 regarding contract of your services with FHRAI with effect from 15th December 2013 to 14th December 2006 for a period of three years. In accordance to the conditions of above said contract the three years period of your services terminates on 14th December 2006. However you are free to apply for the post after publication of the vacancy afresh.

You are requested to contact our Senior Accounts Officer Mr. Sunil Kapoor for the full and final payments. We wish you all the best in your life.

Thanking you Sd/-

Kamal Sharma Secretary General"

4. It may be noted that the appellant/plaintiff was appointed

Assistant Secretary General (Information) of the respondent

no.1/defendant no.1 originally on 28.11.1997. The appellant/plaintiff

was thereafter appointed Deputy Secretary General for a period of

three years vide the appointment letter dated 3.10.2006, and which

appointment letter contains Clause 11 as stated above.

5.(i) Though the appellant/plaintiff pleads before this Court

that the appellant/plaintiff had claimed the relief of restitution of

services as also damages by alleging violation of Clause 11 of the

appointment letter dated 3.10.2006, however, I have not found any

cause of action specifically pleaded in the plaint by making reference

to Clause 11 of the appointment letter dated 3.10.2006, that the

appellant/plaintiff has not been given three months notice or that the

appellant/plaintiff has not being given three months salary in lieu of

notice terminating services.

(ii) For the sake of arguments and assuming that the

appellant/plaintiff had pleaded a cause of action of illegal termination

of services by not being given three months notice or three months

salary in lieu thereof, however, the law is well settled in view of the

judgment of the Supreme Court in the case of S.S. Shetty Vs. Bharat

Nidhi Ltd., AIR 1958 SC 12 and in which judgment the Supreme

Court has held that even if there is illegal termination of contractual

services of an employee, the maximum damages which an employee

as a grievance of illegal termination of services is entitled to is the

salary for notice period. The relevant para of the judgment of the

Supreme Court in the case of S.S. Shetty (supra) is para 12 and which

para reads 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 Edition, Vol (2), p. 559 para. 1040)."

6. It is seen that the court below has rightly denied the relief

of restitution of services and has only granted damages being three

months salary by decreeing the suit for Rs.1,39,986/- along with

interest at 7% per annum. It is not disputed before this Court that sum

of Rs.1,39,986/- is the three months salary payable to the

appellant/plaintiff.

7. I may note that it is a well settled position of law that

there cannot be specific performance with respect to personal services

under a private contractual appointment as per the relevant provisions

of the Specific Relief Act, 1963 and an employee whose services are

illegally terminated can only claim damages.

8. There is no illegality in the impugned judgment.

Dismissed.

JULY 17, 2017                                     VALMIKI J. MEHTA, J
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