Hitesh Gola vs Royal Bank Of Scotland, India ...
2019 Latest Caselaw 2606 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                               Reserved on: 25th March, 2019
                              Date of decision: 20th May, 2019
+                        CS(OS) 324/2018
       HITESH GOLA                                         ..... Plaintiff
                         Through:     Ms. Madhu Sudan Bhayana and Mr.
                                      Madhav     Shah, Advocates (M:
                                      9891617861).
                      versus
     ROYAL BANK OF SCOTLAND,
     INDIA (RBS) & ORS.                          ..... Defendants
                      Through: Ms. Anuradha Mukherjee and Ms.
                               Pallavi Rao, Advocates for D-1 (M:
                               9810020916).
                               Mr. Tushar Sannu, Mr. Shivam
                               Chalotre and Mr. Sushant Tripathi,
                               Advocates for D-2 (M: 9911991106).
                               Mr. Anish Sayal and Ms. Rupam
                               Sharma, Advocates (M: 7838906240).
     CORAM:
      JUSTICE PRATHIBA M. SINGH
                      JUDGMENT

Prathiba M. Singh, J.

I.A. 15117/2018 (u/O VII Rule 11 CPC)

1. The Plaintiff - Mr. Hitesh Gola, an employee of the Royal Bank of Scotland has filed the present suit seeking damages of a sum of Rs.2 crores against the Defendants. The Defendant No.1 is the Royal Bank of Scotland (hereinafter „bank‟) where the Plaintiff is employed as a Lead Analyst. He is a qualified MBA in Finance with ten years of experience with various MNCs in the field of banking. He is employed at the IT Park of DMRC Shastri Park which is a building owned by the DMRC - Defendant No.2. M/s Johnson Lifts Ltd. - Defendant No.3 is the manufacturer of the lift

which was installed in the premises from where the bank is running its office.

2. It is the Plaintiff's case that on 25th January, 2018, while he was in the lift, an incident took place which led to the lift falling from the ground floor to the minus two level pit area. It is his case that he was grievously hurt due to that incident and suffered spinal injuries/fracture. He was rescued after 25 minutes of the incident. He relies on medical reports to claim that he has suffered several spinal fractures and bone injuries because of which he cannot perform normal physical activities like forward and backward bending, maintaining a proper sitting and standing posture without taking breaks. He also pleads that he suffers excruciating pain. Since the Plaintiff's job required long sitting hours, he sought leave on a number of occasions and in view of the incident, he prays for various damages including for physical pain and suffering, mental agony and torment, reduced work capacity and exterminated career growth. The reliefs sought are as under:

"(A) Pass a judgement & decree in favor of the plaintiff for recovery of damages of Rs. 2,01,00,000/- (Rupees Two Crores One Lakh only) against the defendants jointly and severally, along with pendelite & future interest @9% per annum till the date of full realization of entire amount;

(B) Grant a Decree of permanent or appropriate Injunctions restraining the defendant no.1 from removing him from his job due to inability to work as he was working prior to aforesaid accident else plaintiff will also be entitled for damages as per para no.13 of the plaint and appropriate court fees shall be paid on such eventuality at the appropriate stage; (C) Declare right to livelihood of the plaintiff as right to life in view of Constitutional Bench decision of Hon'ble Supreme Court of India in Olga Tellis vs.

Bombay Municipal Corporation, 1985 Supp(2) SCR 51, and consequently restrain the defendant no.1 by issuing Mandatory Injunction or appropriate injunctions from taking away livelihood of the plaintiff; (D) Allow the costs of the suit;

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

3. The Plaintiff had an apprehension that he may be terminated from service and accordingly the Court had passed an interim injunction on 11 th July, 2018. The said order reads as under:

"CS (OS) 324/2018, I.As. 8881/2018 (u/O XXXIX Rules 1 & 2 CPC), 8882/2018 & 8883/2018

5. Plaint be registered as a suit.

6. Issue summons in the suit and notice of the applications to the Defendants. Summons and notices be issued dasti and e-mail as well.

7. The present suit has been filed by the Plaintiff seeking damages on account of injury suffered during the course of employment with the Defendants. It is the plea of the Plaintiff that on 25th January, 2018 due to an accident, which took place in the lift of the office premises, he suffered severe spinal injury. According to the Plaintiff, his job requires sitting continuously for a period of 11 to 12 hours, but due to the spinal injury, he is unable to do long sittings. Accordingly, he prays for damages/compensation.

8. List on 27th July, 2018.

9. There is a reasonable apprehension in the Plaintiff‟s mind that due to his injury, which prevents him from doing long sittings, and filing of the present suit, he may suffer adverse consequences and his services may be terminated during the pendency of the suit. The Plaintiff has made out a prima facie case in his favour. Accordingly, till the next date of hearing, the Plaintiff‟s

services shall not be terminated."

4. The bank has moved an application under Order VII Rule 11 CPC seeking dismissal of the suit. The case of the bank is that the Plaintiff has been given six months' paid leave and he has resumed his duties from 10th August, 2018, hence there is no cause of action. Further, it is claimed by the bank that the malfunctioning of the lift is not the responsibility of the bank but only of the DMRC and the lift company i.e. Defendants No.2 and 3 respectively. Since, the bank is only a lessee of the office premises and the ownership/maintenance etc. is the responsibility of the Defendants No.2 and 3, there is no cause of action against the bank.

5. It is the further case of the bank that it has been a responsible employer and has fully reimbursed the Plaintiff's medical expenses. The Plaintiff has also been given 123 days' of fully paid leave at a monthly salary of Rs.1,48,750/- till 15th September, 2018. In view of these reasons, it is prayed that the suit be dismissed/rejected.

6. The initial interim order dated 11th July, 2018 was to operate till the next date of hearing. However, owing to the stand taken by the bank in its application and in its pleadings, on 27th July, 2018, the interim application was disposed of with the following order:

"I.A.8881/2018 (u/O XXXIX Rules 1 & 2 CPC)

1. Ld. Counsel for Defendant No.1 submits that the Plaintiff has written to Defendant No.1 that he would be joining back to work from 1st August, 2018. She further submits that in view of the accident which had occurred, the Plaintiff was give complete 6 months fully paid leave with reimbursement of all his medical expenses and at the moment, there is no intention of removing him from the employment.

2. In view of the statement by learned counsel for Defendant No.1, the application under Order XXXIX Rules 1 & 2 CPC is disposed of taking the said statement on record."

7. Thus, the application for interim injunction was disposed of with the assurance that the bank had no intention of removing the Plaintiff from employment.

8. Thereafter, while hearing the application under Order VII Rule 11 CPC, it was deemed appropriate to appoint an independent medical committee to examine the Plaintiff, as he was not regularly attending office on the ground of his medical condition. Accordingly, the Plaintiff was directed to present himself to the Medical Superintendent of All India Institute of Medical Sciences (AIIMS) who would appoint a committee for examining the Plaintiff to check the nature of injury that has been suffered. The report has been received from AIIMS. The committee which was constituted has submitted its report dated 1st February, 2019. The observations are as under:

"Reply to Questions asked/queries raised at Point no. 03 of the above mentioned Honorable Court order is as under:

(i): What is the nature of injury suffered by the plaintiff?

Reply: Injury is involving musculoskeletal structures, is associated with pain, and is partially disabling at present.

(ii) Whether he can perform desk functions and if so, for how many hours?

Reply: As per his own submission, he can perform desk functions but for a few hours at a stretch due to back pain. Exact number of hours is variable depending on several factors such as amount of rest before sitting,

level of anxiety/stress, effect of treatment etc. Not disabled because of left knee.

(iii): What is the treatment for the condition suffered by the plaintiff?

Reply: In Grade-I L5 S1 Antero-listheseis, after an appropriate trial of conservative or non-surgical treatment (12weeks/03months), if symptoms persist and do not improve or worsen, a surgical intervention may be an option.

Not disabled because of left knee."

9. The said report has been challenged by the bank on the ground that the Plaintiff has been given sufficient rest since the date of his injury. The bank has also claimed that the injury is easily curable by conservative medical treatment and does not require any surgery. The stand of the bank is that since the injury is not debilitating and the Plaintiff can function in his day to day activities, no cause of action exists against the bank. Reliance is placed on Sections 14(1)(c) and 41(e) of the Specific Relief Act, 1963 to argue that a determinable contract cannot be specifically performed. Since the Plaintiff can be removed by paying three months' salary in lieu of notice, that is the maximum compensation that can be paid. Thus, the bank claims that prayer (b) in any case is not liable to be granted.

10. After the judgment was reserved in the application under Order VII Rule 11, the Plaintiff was served a termination notice which was to come into effect immediately. This resulted in an application under Order XXXIX Rule 2A being filed by the Plaintiff against the bank. In the said application, this Court on 4th April, 2019 had passed the following order:

"14. Ms. Mukherjee, Ld. Counsel appearing for Defendant No.1 submits that the termination letter constitutes a new cause of action for the Plaintiff.

Whatever the legal argument may be, when the bank had made a statement that it did not intend to terminate the Plaintiff and the same was accepted by the Court, serving of such a notice with immediate effect is clearly contrary to the order passed by the Court. Surprisingly the application under Order 7 Rule 11 also pleads that the Plaintiff has resumed office after six months of paid leave on 10th August 2018 and hence the apprehensions of the Plaintiff have already been assuaged. The termination of the Plaintiff has been done by the Bank, in the teeth of the interim protection granted on 27th July 2018 and contrary to the pleading in the application under Order 7 Rule 11 CPC. Further, the judgment having been reserved in the application under Order VII Rule 11, the bank could not have terminated the Plaintiff without informing or seeking leave of the Court. Clearly, Prima facie, the bank is over- reaching the Court process. Accordingly, till further orders, the termination dated 29th March, 2019 issued by the Defendant no.1 bank to the Plaintiff, shall remain stayed."

The said order was appealed against by the bank and the Ld. Division Bench vide order dated 15th April, 2019 has stayed the operation of the said order. The Ld. Division Bench's order reads as under:

"Issue notice. Counsel for respondent No. 2 accepts notice. Let notice be issued to respondent Nos. 1 and 3 returnable on 22.11.2019.

In the meantime, the operation of the impugned order shall remain stayed. Respondent No.1 shall not attend the office in the meantime. The affidavit tendered in Court by the appellant is taken on record.

Dasti."

11. However, the application under Order VII Rule 11 is to be decided by

the present order. Insofar as the relief against termination of the Plaintiff is concerned, on facts, as recorded in the order dated 27th July, 2018, the bank had clearly made a statement that it had no intention of removing the Plaintiff from employment as he had already joined back in August, 2018. However, insofar as the contract of employment itself is concerned, the question as to whether the said contract can be terminated owing to the peculiar circumstances when the Plaintiff suffered injuries during the course of employment and if termination can be held to be reasonable in the background of the fact that he suffered injuries in the office premises, is an issue that would have to be adjudicated at trial. The Court, at the stage of deciding an application under Order VII Rule 11 CPC, cannot undertake a minute examination of the employment contract.

12. Even in a contract of private employment, an employer is expected to act reasonably. In the present case, the bank had categorically expressed to the Court that it had no intention of removing the Plaintiff from employment. This is in the nature of an undertaking given by the bank to the Court. The bank however thereafter proceeded and terminated the Plaintiff without seeking leave from the Court. The issue of termination is now pending before the Ld. Division Bench and hence the question as to whether the bank has a right to terminate or not, would have to abide by the decision of the Ld. Division Bench. Whether such a relief can be sought or not in the suit, would also be a subject matter of the appeal.

13. Further, the claim for compensation is not based purely out of contract but is a tortious claim for damages and compensation. Insofar as the suit for compensation itself is concerned, a conjoint reading of the plaint and the report of AIIMS clearly shows that the plaint cannot be rejected or

dismissed at this stage without evidence being recorded as to the nature of injuries sustained by the Plaintiff and who would be responsible for the same. The Plaintiff would also be entitled to establish the loss and damage suffered by him and his family. At this stage, it cannot be held that the bank would not be liable in any manner whatsoever. Moreover, the question as to which of the defendants would be liable and also whether they would be jointly/severally liable would also be a matter of trial after their respective roles and the obligations are established at trial. An application under Order 7 Rule 11 CPC has to be decided on a bare reading of the Plaint and the defences cannot be considered. None of the reliefs prayed for, can be said to be non-maintainable at this stage. Thus, the suit is not liable to be dismissed or rejected. The application under Order VII Rule 11 CPC is, accordingly, dismissed. No order as to costs.

CS(OS) 324/2018

14. List on 31st July, 2019.

PRATHIBA M. SINGH JUDGE MAY 20, 2019/Rahul