Delhi High Court
Ch Aishi Ram Batra Public ... vs Smt Anita Kumar on 4 May, 2022
$~109(Appellate Side)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 417/2022, CM APPL. 21345/2022 & CM APPL.
21346/2022
CH AISHI RAM BATRA PUBLIC CHARITABLE TRUST
..... Petitioner
Through: Mr. Ashok Chhabra, Advocate
versus
SMT ANITA KUMAR ..... Respondent
Through: None
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
J U D G E M E N T (O R A L)
% 04.05.2022
CM APPL. 21346/2022 (for exemption)
1. Exemptions allowed subject to all just exceptions.
2. The application stands disposed of.
CM(M) 417/2022
3. This petition, under Article 227 of the Constitution of India,
assails an order dated 12th October, 2021, passed by the learned
Additional District Judge ("the learned ADJ"), in CS DJ No. 75/2019
(Anita Kumar v. Batra Hospital & Medical Research Centre), on an
objection of maintainability raised by the petitioner, as the defendant
Signature Not Verified
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:06.05.2022
17:44:32
in the said suit. The impugned order rejects the said objection and
holds the suit to be maintainable.
4. The respondent, in her suit, sought a declaration that the
termination of her employment by the petitioner on 7th April, 2011
was illegal and also claimed damages/ compensation to the extent of ₹
18,61,000/-, with interest from 7th April, 2011. Additionally, the
plaint sought restoration of the respondent in the employment of the
petitioner.
5. The petitioner contested the maintainability of the aforesaid suit
on the ground that a contract of personal service with a private
employer was not capable of specific performance in view of the
proscription contained in Section 14 of the Specific Relief Act, 1963.
6. The learned ADJ has, in the impugned order, largely agreed
with this submission of the petitioner citing, for the said purpose, the
judgment of the Supreme Court in SBI v. SN Goel1 and the judgment
of this Court in Ranmeet Singh Chahel v. Oracle India Pvt. Ltd.2.
7. Even so, it was observed by the learned ADJ, in its judgment in
Ranmeet Singh Chahel2 , this Court had held that an employee,
whose services were allegedly wrongfully terminated by a private
employer could maintain a claim for damages and that a suit
containing such a claim cannot be rejected under Order VII Rule 11,
AIR 2008 SC 2594
MANU/DE/4941/2018
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Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:06.05.2022
17:44:32
CPC.
8. The learned ADJ further relied on the judgment of the Supreme
Court in Sejal Glass Ltd. v. Navilan Merchants Pvt. Ltd.3, to hold
that, if part of the relief sought in a plaint was maintainable, the plaint
could not be rejected under Order VII Rule 11.
9. Thereafter, in the penultimate paragraph of the impugned order,
the learned ADJ observes thus:
"As per the appointment letter dt. 03.01.1991, the plaintiff was offered
the post of Executive Assistant subject to her agreeing to the terms and
conditions mentioned in the said letter. The plaintiff has accepted the
terms and conditions on 05.01.1991. Condition 9 of the said letter
provides that "You are liable to be suspended from services pending
enquiry into any charge of misconduct against you till the final
decision in the matter is taken." However, as per letter dt. 07.04.2011
issued to the plaintiff whereby she was informed that she has been
released from services of defendant from 07.04.20211 with one
month advance salary towards notice period. However, the said letter
does not mention anything with respect to any enquiry being
conducted against the plaintiff or whether pending such enquiry she
was suspended from the services."
10. Clearly, no exception can be taken to the finding of the learned
ADJ that, even if the respondent's contract with the petitioner was
incapable of specific performance, the respondent was nonetheless
entitled to sue for damages and that, in view thereof, the plaint could
not be rejected under Order VII Rule 11.
11. Learned Counsel for the petitioner, however, expresses some
(2018) 11 SCC 780
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By:SUNIL SINGH NEGI
Signing Date:06.05.2022
17:44:32
misgivings because of the afore-extracted penultimate paragraph of
the impugned order. He submits that this paragraph is likely to be
interpreted, later in the proceedings before the learned ADJ, as
amounting to an acknowledgment that the plaintiff could maintain the
claim for a declaration that her services were wrongfully terminated or
any other reliefs predicated on such a claim.
12. To my mind, the afore-extracted paragraph does not contain any
such observation. It amounts to a mere recording of facts of the case.
The learned ADJ has not expressed any opinion, one way or the other.
Be that as it may, the impugned order is not, in my view, susceptible
to interference, as the learned ADJ is correct in holding that, even if
the contract between the respondent and the petitioner was a contract
of personal service with a private employer, a claim for damages
would nonetheless lie. Needless to say, however, it would be for the
respondent to make out a case for being awarded damages on the basis
of the evidence and the law that stands crystallised in that regard. In
as much as a claim for damages would be maintainable, the learned
ADJ cannot be faulted in rejecting the petitioner's submission that the
suit should be dismissed as not maintainable.
13. Accordingly, the impugned order does not call for any
interference in so far as it rejects the petitioner's submission that the
respondent's suit was not maintainable. However, it is clarified that,
in proceeding with the suit, all other issues would remain open to be
agitated by the parties before the learned ADJ, and any other
observations contained in the impugned order would not bind the
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Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:06.05.2022
17:44:32
learned ADJ in proceeding with the matter.
14. Subject to the above clarification, the petition is dismissed.
C. HARI SHANKAR, J
MAY 4, 2022
SS
Signature Not Verified
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:06.05.2022
17:44:32
