M/S Sidhartha Super Spinning ... vs Shri Dharam Pal Singh Tomar
2021 Latest Caselaw 4583 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
             ON THE 17th DAY OF SEPTEMBER 2021
                            BEFORE




                                                            .
         HON'BLE MS. JUSTICE JYOTSNA REWAL DUA





         REGULAR SECOND APPEAL No. 614 OF 2008
         Between:-





    1.   M/S SIDHARTHA SUPER SPINNING LIMITED
         HAVING ITS REGISTERED OFFICE AT INDUSTRIAL
         UNIT AT VILLAGE KHERA NIHLA, TEHSIL NALAGARH,
         DISTRICT SOLAN, HIMACHAL PRADESH THROUGH




         ITS AUTHORIZED SIGNATORY SHRI R.N. YADAV, SON
         OF SHRI NITHUR MUNAI YADAV, RESIDENT OF
         OFFICER'S COLONY, SIDHARTHA, SUPER SPINNING
         LIMITED HAVING ITS REGISTERED OFFICE AT

         INDUSTRIAL UNIT AT VILLAGE KHERA NIHaLA,

         TEHSIL NALAGARH, DISTRICT SOLAN,
         HIMACHAL PRADESH.
    2.   GENERAL MANAGER,
         SIDHARTHA SUPER SPINNING MILLS LIMITED


         HAVING ITS REGISTERED OFFICE AND
         INDUSTRIAL UNIT AT VILLAGE NIHLA KHERA,
         TEHSIL: NALAGARH, DISTRICT SOLAN,
         HIMACHAL PRADESH.




                                       .....APPELLANTS
         (BY SH. RAHUL MAHAJAN, ADVOCATE)





         AND





         SHRI DHARAM PAL SINGH TOMAR,
         SON OF SHRI RAM SAWRUP RESIDENT
         OF VILLAGE & P.O. RANCHHAR,
         TEHSIL BAROT, DISTRICT BAGPAT,
         UTTAR PRADESH.
                                                      .....RESPONDENT

         (SH. SANJEEV KUTHIALA, SR. ADVOCATE
          WITH MS. GARIMA KUTHIALA, ADVOCATE)

         Whether approved for reporting?
    _________________________________________________




                                           ::: Downloaded on - 31/01/2022 23:05:30 :::CIS
                                    2




                  This petition coming on for hearing this day, the

     Court passed the following:




                                                               .

                          JUDGMENT

RSA No.614/2008

Suit filed by an employee against his employer

for recovery of an amount of Rs.3,00,000/- on account of

damages and compensation in lieu of his alleged illegal

termination of services was decreed on 23.04.2008 by the

learned trial Court for an amount of Rs.2,87,700/-. This

decree was affirmed by the learned First Appellate Court on

19.09.2008. Feeling aggrieved, the employer has come up by

way of this regular second appeal.

2. The employee was the plaintiff. His case was

that he was appointed and working as Supervisor in the

defendant-company w.e.f. 11.10.1994. On 2.1.2003, the

defendant-company terminated his services without assigning

any reason. During his service tenure, plaintiff was never

reprimanded or charged with any allegation of mis-conduct

whatsoever. The order dated 2.1.2003 terminating his

services was illegal and issued in-violation of principles of

natural justice. No inquiry prior to his termination was ever

conducted by the defendant-company. The plaintiff also stated

that at the time of termination, he was aged about 51 years

.

with 7 more years of service remaining. He also pleaded that

he was drawing a salary of Rs.5,000/- per month. After

deduction of allowances like PPF etc., he was being paid net

salary of Rs.4520/- per month. After termination of his

services, he could not secure any other job despite his best

efforts, as no vacancy was available in other spinning mills.

2(ii) In the written statement, defendants admitted

the plaintiff's appointment and his working as supervisor in

their industry w.e.f. 11.10.1994. The defendants also admitted

regularizing plaintiff's services. The termination of plaintiff's

services vide letter dated 2.1.2003 was also admitted. The

reason put-forth by the defendants in terminating plaintiff's

services was his alleged absenteeism at work place.

Defendants pleaded that termination of plaintiff's services

was in accordance with terms and conditions of his

appointment letter dated 11.10.1994. It was stated that by

accepting the terms and conditions of his appointment letter,

a contract was created between the plaintiff and the

defendants. In terms whereof, the services of the plaintiff

could be terminated by giving him one month's notice or

payment of one month's salary in lieu of notice.

2(iii) The parties led evidence in support of their

respective contentions. After considering the entire material

.

available on record, learned trial Court took note of the

admitted fact that the plaintiff was an employee of the

defendants w.e.f. 11.10.1994 and drawing Rs.3,425/- per

month as basic salary. His services were terminated on

2.1.2003. The letter dated 2.1.2003 did not disclose any

reason for terminating his services. Alleged absenteeism of

plaintiff taken as a ground in the written statement for

termination of his services was found to be missing in the

termination letter. Certain documents produced by the

defendants in support of terminating plaintiff's services were

not treated as genuine evidence having not been served

upon the plaintiff and also being of unauthentic nature. After

appreciating the evidence, it was also held that the plaintiff

had not accepted any employment during the period in

question. Taking his salary as Rs.3425/- per month and

considering 7 years of his service, remaining at the time of

termination, the total damages were worked out as under:-

Rs.3,425 X 12x 7= Rs.2,87,700/-.

Accordingly the suit filed by the plaintiff

(respondent herein) was decreed for recovery of

Rs.2,87,700/-. The decree has been affirmed by the learned

First Appellate Court.

.

3. Aggrieved, the defendants (employer) have

come up by way of present regular second appeal. This

appeal was admitted on 19.11.2008 on following substantial

questions of law:-

"(I) Whether the Ld Lower Appellate Court has

erred in law and ignored Exhibit D8 to D-10 and Exhibit D2 to D4 and D5 which has resulted in wrong findings and error of law apparent on the

face of record? If so its effect?

(2) Whether the Ld Appellate Court below has misinterpreted the provision of appointment letter Exhibit D1 which governs the terms and condition

of the service between the parties resulting wrong findings? If so its effect?

(3) Whether the findings of the Ld Appellate

Court in not appreciating the provisions of Section

114(g) of Evidence Act has resulted in wrong and illegal findings? If so its effect?"

3(i) Question of law No.1.

Exhibit D-2 to D-5 and Exhibit D-8 to D-10 are

not relevant for deciding the issue raised by the plaintiff more

particularly in view of the stand taken by the defendants.

None of these documents reflected any reason for

terminating plaintiff's services on 2.1.2003. The plaintiff was

admittedly appointed as Supervisor by the defendants on

11.10.1994. His services were terminated on 2.1.2003

without assigning any reason whatsoever. Defendants took

.

up a stand in the written statement that plaintiff's services

were terminated as he habitually remained absent from

work. However, no such reason was mentioned in the

termination order. Documents mentioned in the substantial

questions of law do not advance the case of the defendants

at all. These exhibits are legal notices, replies thereto etc.

These documents do not and cannot provide reasons for

termination of plaintiff's services. Even otherwise, there is no

proof that these documents were either received by the

plaintiff or served upon him. Learned Courts below were

justified in assuming that under such circumstances,

possibility of preparing these documents subsequent to the

termination of petitioner's services cannot be ruled out.

Question of law is answered accordingly.

    3(ii)         Question of law no.2

                  Exhibit D-1 is the letter     dated 11.10.1994,

whereby the plaintiff was appointed as Supervisor by the

defendants. Plaintiff was a regular employee of defendant-

company. The letter of appointment dated 11.10.1994

contained various conditions governing the services of the

plaintiff with the defendants. Condition No.3 provided for

termination of services of a confirmed employee after issuing

him one month's notice or salary in lieu thereof. For

.

termination on disciplinary grounds, no such notice was to be

issued. Condition No.4 provided for termination of an

employee, who had proceeded on leave without prior

permission or sanction or over-stayed the sanction leave.

Condition No.5 provided for termination of an employee, who

remained absent from duty without prior permission or

sanction of leave for three days in a month.

In the instant case, admittedly, plaintiff's

services were terminated on 2.1.2003 without assigning any

reason whatsoever. There is nothing in the letter dated

2.1.2003 to indicate that the plaintiff derelicted in discharging

his duties. No notice to the plaintiff was served before

terminating his services. No inquiry was ever conducted by

the defendants before terminating plaintiff's services. Plaintiff

was a regular employee of the defendants. He had served

them for about 9 years. No opportunity of hearing

whatsoever was afforded to him by the defendants. Both the

learned Courts below correctly appreciated the terms and

conditions of appointment of the petitioner vis-a-vis

termination of his services by the defendants. Question of

law No.2 is answered accordingly.

    3(iii)         Question of law no.3.

                   A ground raised by the defendants in the




                                                                    .

instant appeal is that the plaintiff had failed to produce

evidence to show that he had not been gainfully employed

for the period in question. The argument has been raised

only to be rejected. Plaintiff had asserted that he was already

around 51 years of age at the time of illegal termination of

his services by the defendants. He had served with the

defendants for about 9 years and was left with 7 years of

service at the time of his termination. At fag end of his

service career, he was thrown out by the defendants without

any rhyme or reason. Plaintiff stated that he tried his level

best to secure job in spinning mills but could not get

employment for want of vacancy. No evidence to refute such

assertion was produced by the defendants. Under the

circumstances, it cannot be said that the plaintiff was not

entitled for the compensation awarded by the learned Courts

below. Question of law is answered accordingly against the

appellants.

4. Learned Courts below have returned

concurrent findings on facts after properly appreciating the

pleadings. No substantial question of law is involved in this

second appeal. Parameters set down in Section 100 of Code

of Civil Procedure are not met. The regular second appeal

being devoid of merit is dismissed accordingly.

.

5. Cross Objection No.314/2009

By means of this cross-objection, the plaintiff

has prayed for grant of interest on the amount decreed in his

favour by the learned trial Court. Learned trial Court had

decreed the suit filed by the plaintiff for recovery of an

amount of Rs.2,87,700/-. Interest over the amount decreed

was not granted. The plaintiff did not challenge the judgment

and decree dated 23.4.2008 passed by the learned trial

Court inasmuch as it did not grant him interest over the

decretal amount, before the learned First Appellate Court.

Without challenging the judgment and decree passed by the

learned trial Court before the learned First Appellate Court to

the extent it did not grant interest to the plaintiff on the

amount decreed in his favor, the plaintiff cannot maintain

instant cross objection claiming before this Court the relief of

interest. Accordingly, the cross-objection cannot be

entertained and the same is dismissed.

Jyotsna Rewal Dua Judge

September 17, 2021 (rohit)