HITESH GOLA Vs ROYAL BANK OF SCOTLAND, INDIA (RBS) & ORS. -Judgment by Delhi High Court
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 25th April, 2022
+ CS(OS) 324/2018
HITESH GOLA ….. Plaintiff
Through: Ms. Manali Singhal, Advocate.
versus
ROYAL BANK OF SCOTLAND, INDIA (RBS) & ORS.
….. Defendants
Through: Mr. Sandeep Sethi, Senior Advocate.
CORAM:
HON’BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
J U D G M E N T
ANUP JAIRAM BHAMBHANI J.
I.A.14279/2021
By way of the present application filed under section 151 of Code of Civil Procedure 1908 (�CPC�) the plaintiff seeks a direction that defendant No. 1, M/s Royal Bank of Scotland, India (�RBS�) be directed to pay �back wages� with all consequential benefits to the plaintiff for the period from 30.03.2019 to 23.09.2021 alongwith interest thereon.
2. The principal prayer in the application reads as under:
�a) Direct Defendant No 1. to pay back wages with all consequential benefits to Plaintiff with effect from 30.03.2019 till 23.09.2021 alongwith interest as depicted in para 32 hereinabove.�
3. Ms. Manali Singhal, learned counsel appearing for the plaintiff, submits that at the stage when the plaintiff approached this court by way of the suit, the plaintiff�s employment had not been terminated; and therefore, arising from the cause of action cited in the plaint, the plaintiff had made the following claims in the suit:
�(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.�
4. Alongwith the plaint, the plaintiff had filed an application bearing I.A. No. 8881/2018 seeking interim relief under Order XXXIX Rules 1 and 2 of the Civil Procedure Code, 1908 (�CPC�), on which application, the court made an order dated 11.07.2018, the operative para of which was:
�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.�
(emphasis supplied)
5. It is submitted that subsequently on 27.07.2018, defendant No. 1 assured the court that they had no intention of removing the plaintiff from employment; and based on this statement I.A. No. 8881/2018 was disposed of recording that :
�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 (sic) 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.�
6. However, counsel for the plaintiff contends, that contrary to the statement made and assurance given on 27.07.2018, vid� notice dated 29.03.2019 defendant No. 1 terminated the plaintiff�s services; which compelled the plaintiff to file I.A. No. 4962/2019 under order XXXIX Rule 2(A) CPC, in which this court made an order dated 04.04.2019, the operative portion of which reads as under :
�6. On the next date i.e. 27th July, 2018, Ld. counsel for the Bank had entered appearance and had made a statement that the bank had no intention of removing him from employment at the moment. In view of this statement of ld. Counsel for Defendant No.1, and taking the said statement on record, the application for interim injunction was disposed of. The relevant portion of the said order dated 27th July 2018 is set out herein below:
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�10. Today, the present application under Order XXXIX Rule 2A has been moved on the ground that after the hearing on 29th March, 2019, the Plaintiff was handed over the termination letter. The relevant portion of the termination letter reads as under:
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�11. As per the termination letter, the cessation date is immediate i.e. 29th March, 2019. The above facts clearly show that the Plaintiff was granted protection by this Court and Defendant No.1 had clearly made a statement to the Court that the bank had no intention to terminate the services of the Plaintiff at that stage. It was accepting the statement of the Bank that the application for interim injunction was disposed of on 27th July, 2018. The prayer in the interim application reads as under:
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�12. Since Defendant No.1 had expressed its intention not to terminate the Plaintiff at that stage, the interim application was disposed of, accepting the said statement. As Defendant No.1 had stated before the Court that it did not intend to terminate the Plaintiff, it ought to have sought leave of the Court after placing the facts, that it had changed its intentions and that it now intended to terminate the Plaintiff. Without seeking leave of the Court, such termination was prima facie, impermissible.
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�14. � 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.�
(emphasis supplied)
7. Order dated 04.04.2019 was impugned by defendant No. 1 in FAO (OS) No. 74/2019, in which the Division Bench made an order dated 15.04.2019 staying order dated 04.04.2019 made in I.A. No. 4962/2019.
8. Subsequently the appellant/defendant No. 1/RBS submitted before the Division Bench that without prejudice to their rights and contentions with regard to I.A. No. 4962/2019 under Order XXXIX Rule 2(A) CPC pending before this court, defendant No.1 was desirous of terminating the plaintiff�s services as per the contractual terms contained in clause PNS01.1.2 read with PNS01.2, regardless of the previous notice of termination dated 29.03.2019. In this backdrop, vid� order dated 20.09.2021, the Division Bench disposed of the appeal, recording the following in its order:
�2. After some arguments, Mr. Sethi submits that without going into the correctness of the impugned order, and without prejudice to the rights and contentions in the aforesaid application (I.A. No. 4962/2019), the appellant wishes to terminate the services of the respondent at this stage. He submits that the contract of service entered into between the parties, shows that the contract was terminable, inasmuch, as, either party had a right to terminate the same by giving three months notice, or pay in lieu thereof. The contract also provides for the termination of service of the respondent by the appellant summarily without notice, in the event of gross misconduct, or a serious breach by the respondent of the employment obligations. Mr. Sethi submits that the appellant would terminate the services of the respondent by giving three months notice, or pay in lieu thereof, to the respondent in exercise of the appellant’s right contained in Clause PNS01.1.2 read with PNS01.2.
�3. We, accordingly, dispose of this appeal while reserving the right of the respondent to assail the said termination on the grounds available to the respondent. It shall be open to the respondent to pursue his claim for unpaid salary for the period till the termination now takes effect. The same shall be adjudicated in the suit in accordance with law.�
(emphasis supplied)
9. Counsel for the plaintiff submits that thereupon, defendant No. 1 issued to the plaintiff a (second) termination notice dated 23.09.2021, purporting to terminate the plaintiff�s services.
10. It is submitted that by reason of such termination of his services vid� notice dated 23.09.2021, the plaintiff filed an application bearing I.A. No. 2227/2022 under Order VI Rule 17 read with section 151 CPC, seeking to amend the plaint in view of subsequent developments that had occurred during the pendency of the suit. That notwithstanding, it is argued that by reason of such termination, defendant No. 1 is now liable to pay to the plaintiff �back wages� or arrears of salary, as it were, with all consequential benefits for the period up to 23.09.2021, i.e., the date of the (second) termination. It is argued for the plaintiff, that since defendant No. 1 has issued this (second) termination notice dated 23.09.2021, implicitly defendant No. 1 now admits that the earlier termination notice dated 29.03.2019 was untenable in law or that it stands waived; as a consequence of which, arrears of salary and consequential benefits as claimed by way of the present application straightaway become due for the period of 30.03.2019 to 23.09.2021.
11. For abundant clarity it needs to be recorded, that the application bearing I.A. No. 2227/2022 under Order VI Rule 17 read with section 151 CPC, seeking to amend the plaint in view of subsequent developments, is still pending consideration before this court.
12. As recorded in orders dated 15.03.2022 and 04.04.2022, it was put to Ms. Singhal, that considering that the purported termination of the plaintiffs services by defendant No. 1 vid� notice dated 23.09.2021 is also one of the subsequent events, which the plaintiff would have to incorporate in the proposed amendment to the plaint, along with prayers that flow from such termination, would it not be necessary to first take-up the amendment application before deciding the present application seeking arrears of salary. Ms. Singhal had however asserted, that the amendments sought will have no bearing upon the decision of the present application; and it was in this backdrop that the present application bearing I.A.No.14279/2021 was taken-up for final decision.
13. Pursuant to notice dated 29.10.2021 issued on this application, defendant No. 1 has filed reply dated 03.02.2022 opposing the relief sought in the present application.
14. Mr. Sandeep Sethi, learned senior counsel appearing on behalf of defendant No. 1, submits that the present application is untenable inter-alia on the following grounds:
i. The relief prayed for by way of this interlocutory application is beyond the claims made in the suit since there is no prayer for arrears of salary in the plaint as originally filed;
ii. The principal prayer in the suit is for �damages� for the injury alleged to have been caused in the course of the plaintiff�s employment and not for wrongful termination nor for arrears of salary; and therefore the present application praying for the latter relief is not maintainable;
iii. The plaintiff�s employment with defendant No. 1 was, by its very nature, terminable, since a contract of personal service is not enforceable, either by an employer or an employee, in light of sections 14 and 41 of the Specific Relief Act, 1963; and therefore, a prayer seeking arrears of salary or any sum in excess of the contractually agreed notice period, is untenable in law;
iv. On point of fact, the plaintiff�s claim is false, since he never suffered any injury of the nature alleged; and the plaintiff has been seen on exotic holidays, enjoying water sports, while not remaining available for work at defendant No. 1; and
v. Even assuming that the termination of the plaintiff�s employment at the hands of defendant No. 1 is found to be illegal, the entitlement to arrears of salary, being in the nature of �back wages�, is never a matter of right.
15. In support of his submissions, learned senior counsel cites the following judicial precedents: (i) Cotton Corporation of India Ltd Vs. United Industrial Bank Ltd & Ors, 1983 (4) SCC 624, para 10; (ii) Bacchaj Nahar Vs. Nilima Mandal & Anr, 2008 (17) SCC 491, para 12-13; (iii) Ritona Consultancy Pvt. Ltd. & Ors Vs. Lohia Jute Press & Ors, 2001 (3) SCC 68, para 7; (iv) Sree Jain Swetambar Terapanthi Vid (S) Vs. Phundan Singh & Ors, 1999 (2) SCC 377, para 19; (v) Pearlite Liners Pvt Ltd Vs. Manorama Sirsi, 2004 (3) SCC 172; (vi) Gangotri Enterprises Ltd Vs. Union of India & Ors, 2016 (11) SCC 720; (vii) Dr S. Dutt Vs. University of Delhi, AIR 1958 SC 1050; (viii) Sanatan Dharam Sabha Vs. Johrimal, 1982 RLR 512; (ix) Executive Committee of Vaish Degree College, Shamli & Ors Vs. Lakshmi Narain & Ors, 1977 (2) SCC 58; (x) State of Maharashtra & Ors Vs. Reshma Ramesh Meher & Anr, 2008 (8) SCC 664; (xi) Greater Hyderabad Municipal Corporation Vs. M. Prabhakar Rao, 2011 (8) SCC 155; (xii) Chairman-cum-Managing Director, Coal India Ltd & Ors Vs. Ananta Saha & Ors, 2011 (5) SCC 142; (xiii) A.P. State Road Transport Corporation & Ors Vs.Abdul Kareem, 2005 (6) SCC 36; (xiv) U.P. SRTC Vs. Mitthu Singh, 2006 (7) SCC 180.
16. In rejoinder, it is argued on behalf of the plaintiff that he deserves immediate financial relief, since he has been put in a situation where he cannot even seek alternate employment by reason of the accident suffered in the course of employment with defendant No. 1, when the lift, for the operation of which defendant No. 1 was ultimately responsible, went into free-fall, causing serious injury to the plaintiff�s spine. Counsel submits that such relief is deserved regardless of the application for amendment of the plaint, being I.A. No. 2227/2022, that is pending consideration of the court; and even before trial of the suit is complete.
17. Upon a careful consideration of the pleadings in the matter, in particular the prayers made in the plaint as originally filed, and the submissions made on behalf of the parties, this court is of the following opinion:
i. On a plain reading of the prayers made in the plaint, it is evident that there is no claim in the plaint for any arrears of salary, for any period whatsoever. Infact, the principal monetary claim in the suit is for �damages� arising from the alleged injury, that the plaintiff alleges he suffered in the course of his employment with defendant No. 1, by reason of the lift accident. In the plaint as originally filed, the plaintiff has also claimed a decree of permanent injunction, restraining defendant No. 1 from terminating his services, apart from the broader declaration sought as to the plaintiff�s right to livelihood, as part of his constitutional �right to life�;
ii. Even if the termination of the plaintiff�s employment vid� termination notice dated 23.09.2021 is held to be bad in law; and even if such termination is held to be in breach of the statement made to court as recorded in order dated 27.07.2018, that would in financial terms, at best entitle the plaintiff to damages for wrongful termination. Even if such damages are computed in proportion to the plaintiff�s salary, that would not amount to awarding any claim for arrears of salary. Contempt action by the court, if any, would again not translate into any payment of any arrears of salary to the plaintiff;
iii. This court cannot lose sight of the fact that, in order dated 20.09.2021 made in FAO (OS) No. 74/2019, the Division Bench recorded defendant No. 1�s categorical statement that it � … would terminate the services of the respondent by giving three months notice, or pay in lieu thereof, … in exercise of the appellant’s right contained in Clause PNS01.1.2 read with PNS01.2 …�; and in view of that statement, the Division Bench disposed of the appeal � … reserving the right of the respondent to assail the said termination on the grounds available to the respondent …� and leaving it open � … to the respondent to pursue his claim for unpaid salary for the period till the termination now takes effect�. The question of pursuing such claim would however only arise, if and once, the plaintiff brings all subsequent events, including his termination vid� notice dated 23.09.2021, on record; and would be a matter of trial and cannot be pre-judged at this stage while dealing with the present application. The Division Bench has also kept open the rights and contentions of defendant No. 1 in relation to the application bearing I.A. 4962/2019 under Order XXXIX Rule 2(A) CPC, which is also pending consideration in this matter.
18. The settled principle of law as regards the scope and ambit of relief that may be sought in interlocutory proceedings, in the context of the main relief claimed in the plaint, is stated succinctly by the Supreme Court in its verdict in Sree Jain Swetambar Terapanthi Vid (S)(supra), where the Supreme Court has said :
�19. We may observe that in an adversarial litigation the relief has to be granted to the parties based on their pleadings. No relief should be granted in interlocutory proceedings beyond the scope of the suit. …. .�
(emphasis supplied)
19. In the judgement in Ritona Consultancy Pvt. Ltd. & Ors., the Supreme Court further emphasizes this position in the following words :
�5. …. In respect of those reliefs sought for in different applications, either pending or not effectively disposed of by allowing or rejecting or in any similar manner or fresh or new aspects, it is open to the parties to seek for further directions in the High Court. The High Court shall decide on such applications bearing in mind the salutary principle that an interlocutory order is made by way of aid to the proper adjudication of the claims and disputes arising in and not made beyond the scope of the suit or against the parties who are not before it. That neither excessive conservatism nor traditional technical approach nor overzealous activist approach is conducive to advancement of justice.�
(emphasis supplied)
20. In Cotton Corporation of India Ltd. (supra), the Supreme Court observes the same principle in relation to temporary injunctions, the relevant portion of the judgment being :
�10. …. It is indisputable that temporary injunction is granted during the pendency of the proceeding so that while granting final relief the court is not faced with a situation that the relief becomes infructuous or that during the pendency of the proceeding an unfair advantage is not taken by the party in default or against whom temporary injunction is sought. But power to grant temporary injunction was conferred in aid or as auxiliary to the final relief that may be granted. If the final relief cannot be granted in terms as prayed for, temporary relief in the same terms can hardly if ever be granted. In State of Orissa v. Madan Gopal Rungta1 a Constitution Bench of this Court clearly spelt out the contours within which interim relief can be granted. The Court said that �an interim relief can be granted only in aid of, and as ancillary to, the main relief which may be available to the party on final determination of his rights in a suit or proceeding�. If this be the purpose to achieve which power to grant temporary relief is conferred, it is inconceivable that where the final relief cannot be granted in the terms sought for because the statute bars granting such a relief ipso facto the temporary relief of the same nature cannot be granted. ….. .�
(emphasis supplied)
21. Then again, in Bacchaj Nahar (supra), the Supreme Court reiterates the significance of a litigating party clearly defining its claims in a plaint, in the following way :
�12.The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take.
�13. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a result the defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief. Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when the defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice.Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief.�
(emphasis supplied)
22. Accordingly, this court is of the view that the prayer in the present application cannot be allowed for the reason, firstly, that there is no prayer in the plaint as originally filed claiming arrears of salary; and therefore relief in the present interlocutory proceedings in terms of what is not claimed as the final relief, cannot be granted. Secondly, the termination of the plaintiff�s services by defendant No. 1 vid� notice dated 23.09.2021, is nowhere challenged in the plaint as originally filed. This is obviously so because the original plaint was filed on 27.06.2018, much before termination notice dated 23.09.2021 was issued by defendant No. 1. Termination of services by this notice is inter-alia subject matter of the proposed amendments sought by the plaintiff by way of I.A. No. 2227/2022, which application is yet to be considered and decided by this court.
23. The application is accordingly dismissed.
24. To be sure, the dismissal of this application shall not preclude the plaintiff from seeking the same or similar relief subsequently, under an appropriate provision, as may be permissible, in accordance with law.
ANUP JAIRAM BHAMBHANI, J
APRIL 25, 2022
ds
1 1952 SCR 28
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