Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Judgment in S.C. Suit No.286/2019
MHCC010010312019
Presented on : 28-01-2019
Registered on : 01-02-2019
Decided on : 11.11.2021
Duration : 2 Years 9 months 14 Days.
Exhibit -22
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
S. C. SUIT NO. 286 OF 2019
Diliprao Dattatray Mohite
Age: 58 years,Occupation : Terminated,
residing at Room No.304,
Sai Prerna Bldg., Kisan Nagar No.2,
Road No.16, Thane400604 … Plaintiff
VERSUS
M/s. Topworth Pipes and Tubes Pvt. Ltd.
A Company incorporated under the
Companies Act, and having their address
at C/o. Topworth Group of Companies,
Ceejay House, 308, 3rd Floor, Dr. Annie
Besant Road, Worli, Mumbai18 … Defendant.
Appearance:
Advocate Mr. J.M. D'silva for the Plaintiff.
CORAM: H.S. SATBHAI,
JUDGE, (C.R.NO. 29)
DATE : 11th NOVEMBER, 2021.
JUDGMENT
1. The suit is for declaration that letter of termination of the
services of the plaintiff issued by the defendant dated 14.03.2017 is
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illegal and for recovery of Rs. 26,42,240/ together with interest
thereon at the rate of 18% p.a. from the date of suit till realisation of
amount.
2. The plaintiff came out with a case that the defendant is a
company. Pursuant to the advertisement of the defendant in
newspaper, the plaintiff approached to defendant. Vide letter of
appointment dated 19.08.2015, he was appointed on the post of Head
Liaisoning in defendant company. After successful completion of
probation period, vide letter of confirmation dated 01.06.2016 of
defendant, he got the status of permanent employee His work was
satisfactory. Despite that vide letter dated 14.03.2017, his services
were brought to an end by the defendant without assigning any reason.
The said letter of termination, without giving an opportunity of hearing
to him, is illegal. No showcause notice or salary in lieu of notice period
was given to him. The plaintiff put his grievance to the defendant vide
notice issued by his Advocate dated 27.03.02017. In between on
31.03.2017, the plaintiff was asked to perform his duties. The plaintiff
approached to Labour Court, vide complaint (ULP) No.78 of 2017. Vide
interim order, the Labour Court asked the defendant to allow the
plaintiff to work in defendant company. But, said order has not been
complied with. The defendant preferred Revision Application
No.77/2017 before the Industrial Court against the interim order of the
Labour Court. Thereafter, Labour Court observing that the plaintiff is
not a workman conveyed that it has no jurisdiction to try and entertain
the complaint. The revision application preferred by the plaintiff in
Industrial Court bearing (ULP) No.51/2018 has been dismissed.
Therefore, the plaintiff has filed this suit.
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3. The defendant was duly served with suit summons.
Though appeared, defendant not filed written statement within time.
Hence, the suit proceeded without the written statement of defendant.
4. The plaintiff Diliprao led oral and documentary evidence.
He examined himself as P.W. 1 at Exh. 8.
5. Heard Ld. Advocate for plaintiff. Perused notes of written
argument submitted by plaintiff at Exh. 21. Perused oral and
documentary evidence on record. On its basis, following points rise for
the determination and the findings to each of them for the reasons
recorded, as below :
POINTS FINDINGS
1. Whether the letter of termination
of services of plaintiff issued by
defendant dated 14.03.2017 is
proper, correct and legal ?
No.
2. Whether plaintiff is entitled for
the reliefs claimed ?
Partly yes.
Rs. 2,41,000/ and Rs.
21,37,920/
3. What order and decree ? Suit is partly decreed.
REASONS
AS TO POINT NOS. 1 & 2 :
6. By making available the employment advertisement dated
01.04.2015 and letter of appointment dated 19.08.2015 Exh.11, the
plaintiff has shown that he was appointed by the defendant on the post
of HeadLiaisoning in the defendant company. Vide letter dated
01.06.2016, he was confirmed in service. Vide email dated 14.03.2017
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Exh.13, his services have been brought to an end by the company. By
virtue of letter of confirmation dated 01.06.2016 Exh.12, the plaintiff
had got the status of permanent employees in the defendant company.
On 14.03.2017, he was not on probation. The letter of appointment
Exh.11 provides issuing one month notice in writing or compensation in
lieu of notice before termination of the services of the plaintiff. Since,
the plaintiff had got the status of permanent employee, said condition
of the letter of appointment Exh.11 does not apply. But even it is
assumed that it is applicable to the case of the plaintiff, still, it is not
appearing that before terminating the services of the plaintiff, a show
cause notice of one month period was issued or the
remuneration/compensation in view of notice was paid to the plaintiff.
The letter of termination of services Exh.13 does not assign any reason
except the financial constraints of the defendant for discontinuing the
services of the plaintiff. It does not speak that because of unsatisfactory
performance of the plaintiff in service, he has been removed from the
service. There is no material that indeed the defendant is facing any
financial crunch. Even assumed that it is true, it cannot be a valid
reason to discontinue the services of the plaintiff. The relevant
provisions of the Labour Laws take care of that eventuality. But, in
absence of any justifying material, the letter of termination of services
of the plaintiff Exh.13 is illegal. The defendant was not justified in
discontinuing the services of the plaintiff with effect from 31.03.2017.
When the plaintiff had got the status of permanent employee, the
letter/order of termination of his services dated 14.03.2017, without
giving an opportunity of hearing to him and without assigning any
sufficient cause is illegal.
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7. The salary paid to the plaintiff was subject to deduction of
the provident fund towards his contribution. The amount of
contribution of provident fund from August to April, 2017 comes to
Rs.51,840/. The contribution of employerdefendant comes to
Rs.25,920/. The vouchers of the expenses incurred while working for
defendant are subjected to reimbursement by the defendant and an
amount of Rs.2310/ is lying towards the defendant. It is shown by the
plaintiff that salary of March, 2017 was unpaid. Besides that, the salary
of 3 days of April, 2017 is also due. Towards unpaid salary the plaintiff
is entitled to Rs.66,000/. Towards balance privilege leave of 34 days,
he is entitled to Rs.68,000/. Against balance casual leave and sick
leave is entitled to Rs.27,000/. Thus, overall the plaintiff is entitled to
Rs.2,41,000/. He has claimed the interest on the said amount at the
rate of 9% per annum, which he calculated to Rs.2,84,320/.
8. In Exh.'O' accompanied to plaint, the plaintiff has given
particulars of his claim of damages. According to him, the age of his
superannuation is 60 years. He is entitled to be reinstated in service.
But if reinstatement is not made, in that case, he is entitled for damages
till 29.02.2020. In particulars 'A' and particulars 'B', he has given a
detail statement of the backwages and damages liable to be paid by
defendant to him.
9. The Hon'ble Apex Court, in case of the Maharashtra State
Cooperative Housing Finance Corporation Ltd., V/s. Prabhakar
Sitaram Bhadange, (2017) 3 ALL MR 422 (SC), has settled the legal
position about jurisdiction of Civil Court and its limitations in para 7
and 8 of its Judgment. It is necessary to reproduce both paragraphs of
the order for ready reference,
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“7. We may state at the outset that it was conceded at Bar that if
the employee of a cooperative society is covered by the definition
of ‘workman’ within the meaning of the Industrial Disputes Act,
1947 and claims a relief of reinstatement, in that event to Co
operative Court will not have jurisdiction to entertain such a
claim, inasmuch as, relief of reinstatement cannot be granted by
the Cooperative Court. Such a relief can only be granted by the
Labour Court or the Industrial Tribunal constituted under the
Industrial Disputes Act having regard to the fact special and
complete machinery for this purpose is provided under the
provisions of the Industrial Disputes Act, the jurisdiction of the
Civil Court stand ousted. This is so held by this Court consistently
in a number of judgments. Uttar Pradesh Warehousing
Corporation Ltd. V/s. Chandra Kiran Tyage 1970 1 LLJ 32;
Dr. S.B.Dutta V/s. University of Delhi, 1959 SCR 1236 and
S.R.Tewari V/s. District Board, Agra 1964 1 LLJ. 1. These
observations are made on the premise that even if it is accepted t hat
the Cooperative Court established under the act is a substitute of a
Civil Court, the jurisdiction of the Civil Court to grant relief would
not go beyond the jurisdiction which has been vested in the Civil
Court. When admittedly the Civil does not have jurisdiction to
grant any such relief and its jurisdiction is barred in view of the law
laid down the aforesaid judgment, as fortiorari, the jurisdiction of
the Cooperative Court shall also stand barred. We may also clarify
one more aspect. Contract of personal services is not enforceable
under the common law. Sec. 14 read with Section 41 (e) of the
Specific Relief act, 1963, specifically bars the enforcement of such a
contract. It is for this reason the principle of law which is well
established is that the Civil Court does not have the jurisdiction to
grant relief of reinstatement as giving of such relief would amount
to enforcing the contract of personal services. However, as laid
down in the cases referred above and also in Executive Committee
of Vaish Degree College, Shamli & Ors V/s. Lakshmi Narain &
Ors., (1976) 2 SCC 58, there are three exceptions to the aforesaid
rule where the contract of personal services can be enforced:
(a)In the case of a public servant who has been dismissed from
service in contravention of Art.311 of the Constitution of India;
(b) In the case of employee who could be reinstated in an industrial
adjudication by the Labour Court or an Industrial Tribunal; and
(c) In the case of a statutory body, its employee could be reinstated
when it has acted in breach of the mandatory obligation imposed
by the statute.
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8. Even when the employees of falling under any of the aforesaid
three categories raise dispute qua their termination, the Civil Court
is not empowered to grant reinstatement and the remedy would be,
in the first two categories, by way of writ petition under Article 226
of the Constitution or the Administrative Tribunal Act, as the case
may be, and in the third category, it would be under the Industrial
Dispute act. An employee who does not fall in any of the aforesaid
exceptions cannot claim reinstatement. His only remedy is to file a
suit in the Civil Court seeking declaration that termination was
wrongful and claim damages for such wrongful termination of
services. Admittedly, the appellant Corporation is not a State under
Article 12 of the Constitution. The respondent also cannot be treated
as a Government/public servant as he was not under the
employment of any Government. He was also not ‘workman’ under
the Industrial Disputes act as he was working as Manager with the
appellant Corporation”.
10. In the light of above settled legal position, the Civil Court
is not empowered to grant the relief of reinstatement of plaintiff in
service. But, since there is no material showing that until the age of
superannuation, the plaintiff served elsewhere and that he was gainful
employee, is entitled to backwages as well as the damages because the
letter of termination of services dated 14.03.2017 Exh.13 is illegal. But
so far as the interest claimed on Rs.2,41,000/ is concerned, in absence
of any justifiable reason, it may not be proper to award the interest at
the rate of 9% per annum on Rs.2,41,000/ from 01.04.2017 till
30.01.2019.
11. In particulars of Heading 'B', of Exh. 'O', the plaintiff has
claimed gross salary from April, 2017 to February, 2020, provident fund
contribution of defendant, salary against privilege leave, casual leave
and sick leave. Since the salary of the plaintiff was subjected to
deduction of contribution towards provident fund, he is entitled for the
contribution of provident fund of defendant Rs.97,920/. But as the
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salary against nonavailment of privilege/casual/sick leave is concerned,
if the plaintiff would have remained in service, he would have/or would
not have enjoyed the leave. Therefore, hypothetical entitlement of the
salary against unavailed leave cannot be considered. Under Heading 'B'
of the claim, the plaintiff is entitled to only Rs.20,40,000/ against
salary of April, 2017 to February, 2020 and contribution of defendant
towards provident fund Rs.97,920/.
12. The defendant, who had an opportunity to show otherwise,
chose not to file written statement and contest the suit. It could have
crossexamined the plaintiff and shown otherwise about his claim. But
the defendant chose not to appear and dispute the claim. The entire
evidence of the plaintiff in the form of oral and documentary went
unchallenged. In absence of any otherwise material, answering points
No.1 and 2 accordingly, following order is passed :
ORDER
1. The suit is partly decreed.
2. The order/letter of termination of the services of the plaintiff
issued by defendant dt. 14/03/2017 is declared as illegal.
3. The relief of reinstatement in service of the defendant company is
rejected.
4. The defendant do pay Rs. 2,41,000/(Rupees Two Lakh Forty
One Thousand) to plaintiff towards backwages and other service
benefits together with interest thereon at the rate of 7% per annum
from 01/04/2017 until realization of the entire amount.
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5. The defendant do pay Rs. 21,37,920/ (Rupees Twenty One Lakh
Thirty Seven Thousand Nine Hundred and Twenty) to the plaintiff
towards damages together with interest thereon at the rate of 7% per
annum from the date of suit until realization of the entire amount.
6. No order as to costs.
7. A decree be drawn up accordingly.
Dated : 11.11.2021 (H.S. SATBHAI)
Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 11.11.2021
Transcribed on : 12.11.2021
Signed on : 15.11.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 15.11.2021 5.50 P.M.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri H.S. Satbhai
(C.R.No. 29)
Date of Pronouncement of
JUDGMENT /ORDER
11.11.2021
JUDGMENT /ORDER signed by P.O. on 15.11.2021
JUDGMENT /ORDER uploaded on 15.11.2021
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