M/S G4S Security Services (I) Pvt ... vs Dhiraj Negi
2018 Latest Caselaw 4967 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 122/2015

%                                                     23rd August, 2018


M/S G4S SECURITY SERVICES (I) PVT LTD                         ..... Appellant

                          Through:       Mr. Deepak Sabharwal and Ms.
                                         Ritika Seth, Advocates (Mobile
                                         No. 9810127048).

                          versus

DHIRAJ NEGI                                                  ..... Respondent

                          Through:       Mr. Samir Sagar Vasishta and
                                         Mr. Ashutosh Jha, Advocates
                                         (Mobile No. 9911588191).
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 the Code

of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit

impugning the Judgment of the Trial Court dated 4.12.2014 by which

the trial court has decreed the suit filed by the

respondent/plaintiff/employee against the appellant/defendant/

employer and the trial court has directed reinstatement of the

respondent/plaintiff/employee besides ordering the

appellant/defendant/employer to pay salary from September, 2011 till

August, 2012 including increments for the period.

2. I do not have to narrate the facts in detail because

admittedly it is not disputed, and it could not have been disputed, that

the employment of the respondent/plaintiff with the

appellant/defendant is a private employment i.e. not an employment

under a State/Government or an arm of the State/Government and

which latter employment being a public employment which is only

protected under the provisions of the Constitution.

3. Admittedly, the employment of the respondent/plaintiff

with the appellant/defendant was in terms of the Employment Letter

dated 18.5.1996 (Ex.PW1/2), and which contained Clause 4 providing

for termination by giving two month's notice. This Clause 4 reads as

under:-

"4. That your appointment shall be subject to termination on either side by giving one month's notice or payment of salary in lieu thereof in the first 6 months and 2 months thereafter. In the event of your resignation, the Management may accept the same with immediate effect notwithstanding the one month's notice period."

4. Therefore, once the contract is a private employment, and

the same is terminable by two month's notice, the ratio of the

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

Nidhi Limited AIR 1958 SC 12 applies, and which provides that a

contract of private employment ceases on the period of notice being

served out or pay being given in lieu of the notice period. I have had

an occasion to refer to the ratio of the judgment of the Supreme Court

in the case of S.C. Shetty (supra) in various cases, and the last of such

case is the judgment in the case of Mrs. Malini Rajendran Vs.

Federation of Hotel &Restaurant Association of India & Others,

2017 (242) DLT 167. The relevant paragraph of the judgment in the

case of Mrs. Malini Rajendran (supra) is paragraph 5, and the same

reads as under:-

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."

5. The earlier judgments passed by this Court which have

dealt with this issue in detail are the judgments in the cases of Shri

Naresh Kumar Vs. Shri Hiroshi Maniwa & Ors. 2015 (224) DLT

586, Vinod Pathak Vs. American Express Bank Ltd. 2015 (153) DRJ

172 and GE Capital Transportation Financial Services Ltd. Vs. Shri

Tarun Bhargava, 2012 (190) DLT 185.

6. It is in no manner disputed before this Court that the

respondent's/plaintiff's services were terminated with effect from

17.8.2011 and the respondent/plaintiff has received salary for

17.8.2011 to 16.10.2011 in terms of Ex.PW1/D-3.

7(i) Learned counsel for the respondent/plaintiff argued that

the respondent/plaintiff was in fact after his employment with the

appellant/defendant, subsequently employed with the sister concern of

the appellant/defendant, namely, M/s International British Garments

Company Limited, and therefore, it cannot be held that the termination

of service by giving two month's notice in terms of Ex.PW1/2 would

be valid.

(ii) This argument urged on behalf of the respondent/plaintiff

is meaningless because if the case of the respondent/plaintiff was that

he was the employee of M/s International British Garments Company

Limited, and not the appellant/defendant, then the suit would have

been filed against M/s International British Garments Company

Limited, whereas admittedly the suit has been filed against the

appellant/defendant-M/s G4S Security Services (India) Pvt. Ltd. Even

in the entire plaint there is no case set up by the respondent/plaintiff

that the employment of the respondent/plaintiff originally was with the

appellant/defendant and thereafter the employer of the

respondent/plaintiff was M/s International British Garments Company

Limited. May be that termination notice period pay was given by M/s

International British Garments Company Limited, but that would only

be for and on behalf of the appellant/defendant, and which company is

admittedly the employer of the respondent/plaintiff as per the plaint.

Consideration to a contract need not flow only between parties to a

contract as per Section 2(d) of the Indian Contract Act, 1872, because

consideration can always be paid by a third person to a contract.

9. In view of the aforesaid discussion, this appeal is allowed

and the impugned Judgment of the Trial Court dated 4.12.2014 is set

aside. Suit of the respondent/plaintiff will stand dismissed. Parties are

left to bear their own costs.

AUGUST 23, 2018                              VALMIKI J. MEHTA, J
AK