Judgment:
$~OS-8 * IN THE HIGH COURT OF DELHI AT NEW DELHI % + Date of decision:
06. 12.2018 CS(OS) 286/2017 RANMEET SINGH CHAHAL ..... Plaintiff Through Mr.Jayant Kumar, Adv. Versus ORACLE INDIA PVT. LTD. & ORS. ..... Defendants Through Mr.Pallav Shukla and Mr.Akshay Puri, Advs. CORAM: HON'BLE MR. JUSTICE JAYANT NATH JAYANT NATH, J.(ORAL) IA No.14414/2017 1. This application is filed under Order 7 Rule 11 CPC seeking rejection of the plaint.
2. The plaintiff has filed the present suit seeking a decree of declaration declaring that the termination of the plaintiff’s employment is illegal and void and further declaring that the plaintiff continues in service without any break and is entitled to full back wages. A decree of damages is also sought seeking direction to the defendant to pay damages. Though the amount of damages has not been quantified, in para 26 of the plaint which relates to valuation of the suit for the purpose of court fees, the plaintiff has stated that for the relief of damages, the suit is valued at Rs.2 crores and appropriate court fees of Rs.2 lakhs has been paid for the same.
3. The case of the plaintiff is that the plaintiff joined defendant No.1 CS(OS) 286/2017 Page 1 of 11 Company in 2010. The plaintiff was assigned the work of interacting with various government offices and to sell various oracle products. It was informed to the plaintiff that he has to abide by the Oracle Rules and Polices. It is pleaded that in 2014, the plaintiff came to know that some employees of defendant No.1 were indulging in corrupt practices like fudging data, wrong and illegal declaration to the customers, higher commission being paid to partners which was in turn used to pay customers. Defendant No.1 was in serious non-compliance with regulatory laws of India. Further, defendant No.1 and its employees also indulged in activities like fake bills, fake travels, wrong billing personal expenses charged to customers, etc. which also included offering monetary and other gratifications to various government officers. The plaintiff vide e-mail dated 03.11.2014 informed and complained to defendant No.1 as well as defendant No.2 who is the 100% owner of defendant No.1 about the said illegal and arbitrary actions of the then Managing Director, Mr.Sandeep Mathur and other employees of defendant No.1 who were permitting/ indulging in corrupt practices. As no action was taken, the plaintiff once again in March 2015 informed defendant No.2 about various non- compliances by defendant No.1.
4. It is pleaded that on account of complaints made by the plaintiff, in July 2015 he was put on the Performance Improvement Plan. Defendant No.2 also constituted a team of external counsel to examine the allegations levelled by the plaintiff. In August 2015, it is pleaded that the team found the allegations made by the plaintiff to be true. It is further pleaded that since then, the plaintiff has been facing vindictive and retaliatory actions from defendant No.1 and defendants No.3 to 5 and has been denied CS(OS) 286/2017 Page 2 of 11 benefits, increments and promotions. The plaintiff was demoted in his roles and responsibilities.
5. In June 2017, services of the plaintiff were terminated. Based on the above allegations, the present suit has been filed.
6. 7. I have heard learned counsel for the parties. Learned counsel for the defendants has pleaded that the relief of declaration declaring that the termination of the plaintiff’s employment is illegal and void and that the plaintiff continues to be in service cannot be granted under the Specific Relief Act. He further submits that as far as the relief of damages is concerned, it is well settled law as laid down by the Supreme Court in the case of Ghaziabad Development Authority vs. Union of India & Anr., (2000) 6 SCC113that no damages can be paid on account of mental distress, anguish, annoyance, etc.
8. Learned counsel for the plaintiff has relied upon the judgment of this court passed in the case of Akhilesh Kumar Verma vs. Maruti Udyog Ltd. & Ors., CS(OS) 1917/1995 dated 26.09.2011, where he submits that despite termination of the services of the employee, a decree of damages for Rs.15lakhs was passed as the dismissal of the employee from services was found to be illegal. The court further held that though the employee cannot be entitled to back wages as a matter of right but a suitable compensation can be awarded in the facts and circumstances of the case.
9. The legal position regarding rejection of a plaint under Order 7 Rule 11 CPC is quite clear. Order 7 Rule 11 CPC reads as follows:-
"“11. Rejection of plaint.- The plaint shall be rejected in the following cases:— (a) where it does not disclose a cause of action; CS(OS) 286/2017 Page 3 of 11 (b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails comply with the provision of Rule 9. Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff.” 10. While considering an application under Order 7 Rule 11 CPC, the court can only look at the averments in the plaint and the accompanying documents. In Tilak Raj Bhagat vs. Ranjit Kaur, 2012 VAD (Delhi) 186 this court held as follows:-
"“5. It may be worthwhile to mention here that while considering an application under Order 7 Rule 11 CPC, the Court has to look at the averments made in the plaint by taking the same as correct on its face value as also the documents filed in support thereof. Neither defence of the defendant nor averments made in the application have to be given any weightage. Plaint has to be read as a whole together with the documents filed by the plaintiff.” CS(OS) 286/2017 Page 4 of 11 11. To the same effect are the judgments of the Division Bench of this Court in the case of Indian City Properties Ltd. Vs. Vimla Singh & Ors. 198(2013) DLT432and in the case of Inspiration Clothes & U vs. Collby International Ltd., 88(2000) DLT769 12. As far as the first relief is concerned, namely, seeking a decree of declaration declaring that the termination of the plaintiff’s employment is illegal and void and further seeking reinstatement, it is well settled law that such a relief cannot be granted under the Specific Relief Act.
13. Reference may be had to section 14 of the Specific Relief Act which reads as follows:-
"“14. Contracts not specifically enforceable.— (1) The following contracts cannot be specifically enforced, namely:— (a) a contract for the non-performance of which compensation in money is an adequate relief; (b) a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms; (c) a contract which is in its nature determinable; (d) a contract the performance of which involves the performance of a continuous duty which the court cannot supervise. xxxxx” 14. Hence, contracts which are in nature determinable cannot be performed specifically. Reference in this context may be had to the judgment of this court in the case of Naresh Kumar v. Hiroshi Maniwa & Ors., 2015 (224) DLT586where the legal position regarding suits seeking continuation of service in a private employment was elaborated. The court CS(OS) 286/2017 Page 5 of 11 held as follows: “3. In view of ratio of the judgment of the Supreme Court in the case of S.S. Shetty Vs. Bharat Nidhi Ltd.,: AIR1958SC12it is clear that even if there is an illegal termination of an employee by a private employer, at best the employee is entitled to the salary for the notice period. I have had an occasion to deal with the ratio in the judgment in the case of S.S. Shetty (supra) in various cases and the last of such cases is the case of L.M. Khosla Vs. Thai Airways International Public Company Limited & Anr., CS(OS) No.673/1997, decided on 01.08.2012. The relevant paras, i.e. paras 2 to 8, of L.M. Khosla's case (supra) read as under:-
"xxxxxxxxxxx” 3. The issues with respect to whether an employee under a private employment can file a suit seeking continuation of services with consequential benefits of pay etc and disentitlement of the employer to terminate the services have been decided by me in three judgments as under:-
"(i) Shri Satya Narain Garg through his legal heirs Vs. DCM Limited and Ors. in RFA No.556/2002 decided on 5.12.2011. (ii) GE Capital Transportation Financial Services Ltd. Vs. Shri Tarun Bhargava in RFA No.294/2004 decided on 20.3.2012. An S.L.P. against this judgment has been dismissed by the Supreme Court on 3.8.2012 in S.L.P. No.21723/2012. (iii) Pawan Kumar Dalmia Vs. M/s. HCL Infosystems Ltd. and Ors. in RFA Nos. 180/2004, 235/2004 and 239/2004 decided on 13.3.2012.
4. In the judgment in the case of Shri Satya Narain Garg (supra), I have referred to the recent judgment of the CS(OS) 286/2017 Page 6 of 11 injustice. In case of private employment, Supreme Court in the case of Binny Ltd. & Anr. Vs. V. Sadasivan & Ors. MANU/SC/0470/20
(2005) 6 SCC657and which holds that public policy principles or administrative law principles do not apply to private employment. The relevant paras in the judgment in Shri Satya Narain Garg (supra) read as under:-
""7. Merely because two views are possible, this Court will not interfere with the conclusion arrived at by the Trial Court, unless the conclusion is illegal or perverse or causes grave the employers are fully justified in taking steps for termination of services, if it finds that the employee is not upto the mark. Principles applicable in public law domain do not apply with respect to employees in private employment. Employment in private sector is governed by the terms and conditions of employment, and unless the termination is shown to be violation of the terms and conditions of employment, it cannot be said that the termination is illegal. In the present case, in my opinion, since there was no fixed period of employment so far as the deceased plaintiff is concerned, the deceased plaintiff could have been terminated from services even by a simplicitor notice, assuming even if the services of the deceased plaintiff were upto the mark. Further, even if there is illegal termination of services, it is not possible to grant damages as claimed inasmuch as the principle of mitigation of damages squarely applies. As per this principle of mitigation of damages enshrined in Section 73 of the Contract Act, 1872 even if an employee is illegally terminated from services, he cannot sit at home and he must take sufficient steps to procure alternative employment. The law in this regard is contained in the judgment of the Supreme Court reported as S.S. Shetty v. Bharat Nidhi Ltd., MANU/SC/0080/19
AIR1958SC12 Paras 12 and 13 of this judgment are relevant and the same read as under:
12. The position as it obtains in the ordinary law of master CS(OS) 286/2017 Page 7 of 11 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 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).” finding work resulting from 15. Reference may also be had to the judgment of the Supreme Court in State Bank of India & Ors. v. S.N.Goyal, JT2008(6) SC398 where the court held as follows: “11. Where the relationship of master and servant is purely contractual, it is well settled that a contract of personal service is not specifically enforceable, having regard to the bar contained in Section 14 of the Specific Relief Act, 1963. Even if the termination of the contract of employment (by dismissal or otherwise) is found to be illegal or in breach, the remedy of the employee is only to seek damages and not specific performance. Courts will neither declare such termination to be a nullity nor declare that the contract of employment subsists nor grant the consequential relief of reinstatement. The three well recognized exceptions to this rule are: (i) where a civil servant is removed from service in CS(OS) 286/2017 Page 8 of 11 contravention of the provisions of Article 311 of the Constitution of India (or any law made under Article 309); (ii) where a workman having the protection of Industrial Disputes Act, 1947 is wrongly terminated from service; and (iii) where an employee of a statutory body is terminated from service in breach or violation of any mandatory provision of a statute or statutory rules. There is thus a clear distinction between public employment governed by statutory rules and private employment governed purely by contract. The test for deciding the nature of relief - damages or reinstatement with consequential reliefs - is whether the employment is governed purely by contract or by a statute or statutory rules. Even where the employer is a statutory body, where the relationship is purely governed by contract with no element of statutory governance, the contract of personal service will not be specifically enforceable. Conversely, where the employer is a non-statutory body, but the employment is governed by a statute or statutory rules, a declaration that the termination is null and void and that the employee should be reinstated can be granted by courts. (Vide: Dr. S. Dutt v. University of Delhi: [1959]. 1 SCR1236 Executive Committee of UP State Warehousing Corporation Ltd. v. Chandra Kiran Tyagi: (1970) ILLJ32SC; Sirsi Municipality v. Cecelia Kom Francies Tellis: (1973) ILLJ226SC; Executive Committee of Vaish Degree College v. Lakshmi Narain: (1976) IILLJ163SC; Smt. J.
Tiwari v. Smt. Jawala Devi Vidya Mandir: AIR1981SC122 and Dipak Kumar Biswas v. Director of Public Instruction: (1987) ILLJ516SC).” 16. Clearly, the relief sought in the present plaint, namely, a decree of declaration declaring the termination of the plaintiff’s employment as illegal and void cannot be granted. Hence, the said relief to that extent as prayed in the plaint cannot be granted. CS(OS) 286/2017 Page 9 of 11 17. However, it has also been pleaded by the plaintiff that he was subject to harassment and that he has been denied increments and promotions as he was a whistle blower. Though the plaint is not verbose on the contentions but allegations of harassment, etc. have been made in the plaint.
18. The learned author Mulla The Code of Civil Procedure, updated 18th Edition, reprint (July) 2016 on section 9 of CPC states as follows:-
"“a litigant having a grievance of civil nature has independently over statute a right to institute a suit in the civil court unless is cognizance is either expressly or impliedly barred.” Exclusion of jurisdiction of civil court is not to be readily inferred and such exclusion must be either expressed or implied. In all types of civil disputes civil court has inherent jurisdiction as per section 9 unless the jurisdiction is curbed”.
19. As already noted in the above noted judgments where the master wrongfully dismisses his servant, he is bound to pay him such damages as will compensate him for the wrong that he has sustained.
20. Based on the above legal position it cannot be said that there is any bar to the claim of damages as claimed by the plaintiff. Of course the plaintiff would have to prove that he has been wronged by the defendants. He may also have to prove that he was maliciously, wilfully and illegally removed from the job and harassed while on the job. It cannot be said that the said claim does not arise or is barred by law so as to attract Order 7 Rules 11 CPC.
21. Merely because the plaintiff may have a weak case would not be a ground to hold that the suit itself is not maintainable.
22. It may be noted that merely because a part of the claim raised in the plaint is barred by law is not a ground to reject the plaint under Order 7 Rule CS(OS) 286/2017 Page 10 of 11 11 CPC. Reference in this context may be had to the judgment of the Supreme Court in the case of Sejal Glass Ltd. v. Navilan Merchants Pvt. Ltd., (2018) 11 SCC780where the court held as follows: “8. We are afraid that this is a misreading of the Madras High Court judgment. It was only on the peculiar facts of that case that want of Section 80 Code of Civil Procedure against one Defendant led to the rejection of the plaint as a whole, as no cause of action would remain against the other Defendants. This cannot elevate itself into a Rule of law, that once a part of a plaint cannot proceed, the other part also cannot proceed, and the plaint as a whole must be rejected Under Order VII Rule 11. In all such cases, if the plaint survives against certain Defendants and/or properties, Order VII Rule 11 will have no application at all, and the suit as a whole must then proceed to trial.” In view of the above, there is no merit in the present application and 23. the same is dismissed. CS(OS) 286/2017 The defendants will file their written statement within 30 days from today. List before the Joint Registrar on 14.01.2019. JAYANT NATH, J.
DECEMBER06 2018/rb/n/v corrected & released on 09.01.2019 CS(OS) 286/2017 Page 11 of 11