Akhilesh Kumar Verma vs Maruti Udyog Ltd. and Others

V.K. Jain, J.—The Plaintiff was employed as an Executive with Defendant No. 1- Company in June, 1984 and was promoted as Sr. Executive in the year 1989. The Plaintiff was dismissed from service of Defendant No. 1 vide order dated 27th June, 1992. The allegations in the plaint is that the Defendant No. 2 Shri R.C. Bhargava, Managing Director of Defendant No. 1 company and Defendant No. 3 Shri D.S. Gupta, Divisional Manager (Marketing & Sales) of this company were involved in irregularities and corrupt practices and wanted the Plaintiff to cooperate with them and when he declined to do so, they became hostile toward him. On 16th May, 1989, the Plaintiff was transferred to Gurgaon in the Transport Planning and Dispatch Section of the Vehicle Dispatch Department and made to report to a person of equivalent level. Neither any work nor a seat was allotted to him for 10 months and thereafter, he was asked to sit with Assistants and Supervisors, whereas his junior was sitting in officers" row. This, according to the Plaintiff was done to humiliate him. This is also the case of the Plaintiff that on 11th January, 1990 an attempt was made by Defendant No. 5 Shri A. Nandy, DGM to assault him in the factory premises and he had to lodge a report in this regard with the police as well as the Industry Minister. It is also alleged that a number of articles appeared in newspapers exposing corruption and irregularities in Defendant No. 1-company and the role of Defendants No. 2 & 3 in those corruptions and irregularities. An FIR was also registered by CBI in this regard. Suspecting that it was the Plaintiff who was behind CBI inquiry, the Defendants decided to transfer him to Bombay and a transfer order dated 17th April, 1990 was accordingly issued. A representation made by the Plaintiff for cancellation of transfer was rejected. A Civil Suit was filed by the Plaintiff in this regard but he was not able to get any interim relief. Despite request of the Plaintiff No. arrangement was made by Defendant No. 1-company for his travel to Bombay for joining the Regional Office to which he had been transferred. He was rather given a charge-sheet alleging unauthorized absence and disobedience of the orders. On 29th January, 1991 he was relieved from the factory of Defendant No. 1 and he joined Bombay office on 30th January, 1991. Since the wife of the Plaintiff fell sick he proceeded to Delhi after submitting a leave application. When he joined back Bombay on 1st April, 1991 he was not assigned any work and was asked to go to Jawahar Lal Nehru Port Trust, Raigarh without assigning any work to him. He was posted at Jawahar Lal Nehru Port Trust, Raigarh vide order dated 6th April, 1991 but No. work was allotted to him even at Raigarh. Since No. work was assigned to the Plaintiff he proceeded on leave but the leave was not sanctioned. A charge-sheet dated 5th August, 1991 was then served on him on 7th August, 1991 alleging unauthorized absence and disobedience of orders of the superiors. The Plaintiff was given 10 days time to file reply to the charge-sheet. However, even before expiry of 10 days time stipulated in the charge-sheet, inquiry was instituted against the Plaintiff.

During pendency of the inquiry, Defendant No. 4 who was appointed as the Inquiry Officer told the Plaintiff that the inquiry was merely an eye-wash and he had, in any case, to submit a report against him. The dismissal order has been challenged by the Plaintiff primarily on the grounds that, 1) the Inquiry Officer, who was under pressure of Defendants No. 2 & 3 was prejudiced against him and had stated that the inquiry was only a formality, 2) the domestic inquiry was used as a smokescreen to give a pre-determined verdict against the Plaintiff, and 3) the inquiry was conducted in violation of principles of natural justice. The Plaintiff has sought quashing of the domestic inquiry and his reinstatement in service and in the alternative damages amounting to Rs. 24,35,303/- which includes Rs. 63,944/- towards gratuity. The aforesaid amount has been claimed on the basis of last drawn salary and admissible allowances. The Plaintiff has also claimed a sum of Rs. 1,00,000/- towards harassment and mental agony and Rs. 2,00,000/- for his defamation on account of illegal and arbitrarily dismissal.

The suit has been contested by Defendant No. 1, 2 & 5. They have taken a preliminary objection that since the Plaintiff had earlier filed a suit seeking declaration and permanent injunction against his transfer, the present suit on the same cause of action is barred by the principle of estoppels and is liable to be dismissed. Another preliminary objection taken by the contesting Defendants is that since a contract of service, being personal in nature is not enforceable, the suit is not maintainable in the present form and is barred under the provisions of Specific Relief Act. On merits, the contesting Defendants have denied the allegations made against them. As regards the incident of 11th January, 1990 it is alleged that the Plaintiff was found sitting in computer terminal room without any authorization and was asked by Defendant No. 5 not to create indiscipline in the department whereupon Plaintiff abused him and alleged that he did not have a proper seat. Defendant No. 5 thereafter raised his hand to point towards the office where the Plaintiff had been allotted seat. The Plaintiff thereupon lost him temper and used abusive language against Defendant No. 5 alleging attempt to assault. Regarding allocation of work and seat in the factory premises, it is alleged that the Plaintiff was informed that he had been allotted a seat in the Vehicle Dispatch and Transport Billing Section but he was not satisfied with the seat allotted to him, which he claimed was not in accordance with his status and seniority, though in fact, the Defendants have adopted Japanese culture of sitting in open office. Regarding transfer of the Plaintiff to Bombay, it is claimed that as per the contract of service, the Plaintiff could have been transferred in the exigencies of the work and the transfer was made accordingly. The Plaintiff was then posted at Nhana Sheva Port to render assistance to the Manager which the Defendant No. 1-company had appointed to look after its operations there. It is also alleged that the Plaintiff was avoiding orders of his transfer to Bombay and a charge-sheet dated 31st December, 1990 was issued to him when he did not report for duty at the Regional Office till 19th November, 1990. It is further, alleged that the Plaintiff was unauthorizedly absent from the duty from 23rd April, 1990 to 30th April, 1990 and 1st May, 1990 to 19th November, 1990. He did not comply with the order of his superiors to report at Jawahar Lal Port Trust at Raigarh and came to Delhi on 11th February, 1991 without getting his leave sanctioned. He remained unauthorizedly absent till 30th March, 1991. It is also claimed that the Inquiry Officer was an independent person and was not prejudiced against the Plaintiff and the inquiry was conducted in accordance with law following the principles of natural justice.

The following issues were framed on the pleadings of the parties:

Whether because of the suspicion of Defendant No. 1 that the Plaintiff had made revelations of its malpractices, the Plaintiff was harassed and illegally dismissed by Defendant No. 1? - OPP

Whether the domestic enquiry report dated 21st May, 1992 is illegal, motivated and liable to be declared null and void? - OPP

Whether the dismissal order dated 27th June, 1992 is illegal, motivated and liable to be declared null and void? - OPP

Whether the Plaintiff is entitled to any amount of compensation from the Defendants? - OPP

Whether the suit of the Plaintiff is not maintainable in the present form and barred under the Specific Relief Act? - OPD

Relief.

Issue No. 5

Admittedly, the suit instituted previously by the Plaintiff was with respect to his transfer whereas it is dismissal of the Plaintiff from the service which has been challenged in the present suit. The case of the contesting Defendants is that the application of the Plaintiff for grant of an interim injunction in that suit was dismissed not only by the trial Court but also by the first Appellate Court. The inquiry report was not the subject matter of the previously instituted suit and therefore, the Court in which the previous suit was filed was not called upon to adjudicate on the validity of the dismissal of the Plaintiff from service. The present suit is therefore not barred by the principle of estoppel. The issue is decided against the Defendants and in favour of the Plaintiff.

Issues No. 1, 2 & 3

In his affidavit by way of evidence, the Plaintiff has stated that during pendency of the domestic inquiry and even after its completion, the Inquiry Officer (Defendant No. 4) had told him several times that the inquiry was merely an eyewash and that in any case he had to make a report against him. The telephonic conversations were tape recorded by him and are contained in his representation Exh. PW-1/51. The Inquiry Officer despite being a party to the suit has not filed any Written Statement contesting the suit nor have the contesting Defendants examined him as a witness. Thus, the deposition of the Plaintiff with respect to - what conversation took place between him and the Inquiry Officer remains virtually unrebutted. It would be pertinent to note here that only one witness Shri A.S. Sharma has been examined by the contesting Defendants. Mr. A.S. Sharma, obviously cannot have any knowledge of conversation between the Plaintiff and the Inquiry Officer and has admitted that he had No. personal knowledge about this case and was depositing on the basis of the record of the company. He has also admitted that he did not know as to what discussion Defendants No. 3, 4, 5 & 6 had with the Plaintiff. The Plaintiff has also placed on record the tape alleged to be containing conversation between him and the Inquiry Officer. Though, the voice if any, in the tapes has not been compared by any expert with the voice sample of the Defendant No. 4 that, to my mind, would not make much difference since Defendant No. 4 despite being a party to the suit has not come forward to controvert the transcript of the conversation as mentioned in Exh. PW-1/51. As per the transcript the Inquiry Officer stated as under:

Report to mujhe aapke khilaf hi banana hai, aapke khilaf enquiry hi issi liye institute hui hai, varna charges hi kya hain.

This conversation between the Plaintiff and the Inquiry Officer clearly indicates that the inquiry was conducted with a pre-decided mind and the Inquiry Officer who was an employee of Defendant No. 1-company was under instructions to submit a report against the Plaintiff, irrespective of the merit of the charge against him. Since, the Inquiry Officer had during the pendency of the inquiry itself, decided to submit a report against the Plaintiff it is obvious that he was biased against the Plaintiff, presumably, on account of the pressure from his superiors to submit a report detrimental to the Plaintiff. If the Inquiry Officer was biased against the Plaintiff and was conducting the inquiry proceedings with a pre-decided mind, the inquiry proceedings as well as the findings recorded by the Inquiry Officer became tainted and vitiated. If the inquiry proceedings and the findings recorded by the Inquiry Officer were vitiated on account of bias, which the Inquiry Officer had against the Plaintiff, the dismissal of the Plaintiff based on such an inquiry report also becomes vitiated in law and is liable t be quashed on this ground alone.

Exh. PW-1/50 is the communication dated 21st May, 1992 whereby a copy of the inquiry report was supplied to the Plaintiff and he was advised to make representation against it, if he so desired, within 04 days of receipt of the communication. Exh. PW-1/D1 which is a document field by the contesting Defendants is a draft for approval (DFA) dated 21st May, 1992. Exh. PW-1/52 is a replica of Exh. PW-1/D1. Not a single sentence in paras 1-5 of dismissal order Exh. PW-1/52 is different from DFA Exh. PW-1/D1. Para 02 of DFA dated 21st May, 1992 Exh. PW-1/D1 and dismissal order dated 27th June, 1992 Exh. PW-1/52 reads as under:

The Competent Authority, after having gone through the proceedings of the enquiry, the report of the Enquiry Officer and other connected papers, including your representation against the findings of the Enquiry Officer has concurred with the findings of the Enquiry Officer.

Admittedly, the representation against the communication dated 21st May, 1992 Exh. PW-1/50 was submitted by the Plaintiff only on 9th June, 1992. The very fact that a draft order referring to the representation of the Plaintiff against the finding of the Inquiry Officer and conveying the concurrence of the Competent Authority with the findings of the Inquiry Officer after considering the representation of the Plaintiff, had been prepared on 21st May, 1992 indicates that the Competent Authority had already taken a decision, even before receipt of representation from the Plaintiff against the Inquiry Report, to dismiss him from service, which, in turn, indicates that the Competent Authority was biased against the Plaintiff and had decided even before the receipt of the representation of the Plaintiff, to accept the findings of the Inquiry Officer to dismiss him from service. Had the Competent Authority not been acting with a biased mind, the draft order referring to the representation of the Plaintiff against the findings of the Inquiry Officer and conveying concurrence of the competent authority with the findings of the Inquiry Officer, would not have been prepared on 21st May, 1992 itself. It would also be pertinent to note here that the person who prepared DFA Exh. PW-1/D1 has not been produced in the witness box to explain why this kind of draft was prepared and kept on the file even before receipt of representation of the Plaintiff against the findings recorded by the Inquiry Officer and possibly even before serving the communication dated 21st May, 1992 Exh.PW-1/50 on the Plaintiff. This is yet another ground on which the dismissal of the Plaintiff from service of Defendant No. 1 is liable to be quashed.

Ex.PW-1/44 is the charge sheet dated August 05, 1991, issued to the Plaintiff by Regional Manager (West) of Defendant No. 1. Vide this chargesheet, he was called upon to submit his explanation within 10 days of receipt of the chargesheet. The Plaintiff received this chargesheet on August 07, 1991, as is evident from his explanation dated August 13, 1991 (Ex.PW-1/45). Ex.PW-1/46 is the note initiated on August 16, 1991 for appointment of an Inquiry Officer, to conduct inquiry into charges against the Plaintiff. Since the Plaintiff was given 10 days from the date of the receipt of the chargesheet to submit his explanation with respect to the acts of misconduct imputed to him, Defendant No. 1 ought to have waited for at least 10 clear days from the date of delivery of the chargesheet on him, before initiating a proposal for appointment of the Inquiry Officer. It is noted in the proposal Ex.PW-1/46 that the Plaintiff had not cared to reply to the chargesheet, but, the note does not indicate the date on which the chargesheet was served on him nor does it refer to the time given to the Plaintiff to submit his explanation in the matter. It would be pertinent to note here that the proposal Ex.PW-1/46 does not refer to response of the Plaintiff dated August 13, 1996, which was delivered in the office of Defendant No. 1 on August 16, 1991, as is evident from the endorsement made on the document. Therefore, it cannot be said that the proposal for appointment of the Inquiry Officer was initiated after receipt of the response of the Plaintiff and after taking the same into consideration. Had Defendant No. 1 bothered to verify the date of service of chargesheet on the Plaintiff and waited for 10 days from the date of service of the chargesheet on him, it would have been possible for it to consider the explanation from the Plaintiff before taking any decision on the question of holding an inquiry into the charges against him. The fact that a proposal for appointment of the Inquiry Officer was initiated even before expiry of the time given to the Plaintiff to respond to the chargesheet is yet another indicator that Defendant No. 1, somehow or the other, wanted to get rid of the Plaintiff at the earliest possible and that is why it did not bother to await the response of the Plaintiff or to wait for at least 10 days from the date the chargesheet was served on him.

One of the cardinal principles of natural justice is that the deciding authority must be fair impartial and without any bias. The bias can be personal pecuniary and official. The test to determine whether the decision was influenced by bias or not, is as to whether there was a real likelihood of bias even though such bias, has not in fact taken place. In The Secretary to the Secretary to Government, Transport Deptt., Madras Vs. Munuswamy Mudaliar and Another, , it was observed in the context of an Arbitrator that a pre-deposition to decide for and against one party without proper regard to the true merits of the dispute is bias. If the Inquiry Officer had, even before examining the merits of the charge against the Plaintiff, decided/agreed to submit a report against him, this would indicate a pre-disposition to decide against the Plaintiff and therefore would constitute bias. of course, there must be a reasonable apprehension of such a pre-disposition and that apprehension needs to be based on cogent material. If the Inquiry Officer tells a person that he has to submit a report against him, this would definitely give rise to a reasonable apprehension in the mind of the person facing inquiry that he cannot expect to get a fair report from such an Inquiry Officer and therefore would be a case of the Inquiry Officer being bias against him. Though, there is No. evidence to show that the Plaintiff had, during the inquiry proceedings, made a request to the Competent Authority to remove the Inquiry Officer, that, to my mind, would not be sufficient to reject the allegation of bias when the Inquiry Officer despite being a party to the suit has chosen not to contest the suit and the contesting Defendants have also not examined him as a witness, to controvert the plea of bias taken in the plaint.

In Jai Inder Singh v. Union of India and Ors. 1994 (29) DRJ (DB), the show-cause notice dated 27th November, 1992, asking him to submit his reply before 10th December, 1992 was dispatched on 16th December, 1992 whereas the order had been signed on 11th December, 1992 thus, the show-cause notice was actually dispatched after the dismissal order had already been passed. Under these circumstances, it was held that the appointing authority was pre-determined to pass the order of dismissal without waiting for the reply to the show-cause notice issued by it and such an order being in violation of principles of natural justice could not be sustained. In the case before this Court thus, the order of dismissal of service was signed only after receipt of reply from the Plaintiff. The fact that a draft order referring to the representation of the Plaintiff against the report of the Inquiry Officer and conveying concurrence of the Competent Authority to the findings recorded by him was found in the file of Defendant No. 1 company and the dismissal order is a replica of that draft order clearly indicates a pre-disposition on the part of the Competent Authority to dismiss the Plaintiff from service.

It was contended by the learned Counsel for the contesting Defendants that since a contract of service being personal in nature cannot be specifically enforced, the Court cannot direct reinstatement of the Plaintiff nor can it award compensation on account of his dismissal from service. In this regard he has relied upon Clause 8 of the terms and conditions on which the Plaintiff was appointed which provided that the service of the Plaintiff, on confirmation, was liable to be terminated by giving 03 months" notice by either party or pay plus dearness allowance in lieu of such notice, or, in case of shorter notice, pay plus dearness allowance for the period falling short of 03 months" period. He has also contended that since Defendant No. 1 is not "State" within the meaning of Article 12 of the Constitution of India, the Plaintiff did not enjoy protection of Article 311 of the Constitution of India. In support of his contention that Defendant No. 1 is not "State" within the meaning of Article 12 of the Constitution of India, the learned Counsel for the contesting Defendants relied upon decision of this Court in P.B. Ghayalod v. Maruti Udyog Ltd. and Ors. 45 (1991) DLT 381 (DB).

In the facts and circumstances of this case, I find No. merit in the contention that even if the Court finds that dismissal of the Plaintiff from service is bad in law being vitiated by bias on the part of the Inquiry Officer and the Competent Authority who dismissed him from service, the Court can neither order his reinstatement nor award him compensation in lieu of the reinstatement in service. No. doubt, since Defendant No. 1 is a private company and is not "State" within the meaning of Article 12 of the Constitution of India as was held by this Court in the case of P.B. Ghayalod (supra) and since the Plaintiff is not a workman, Defendant No. 1 could in exercise of powers conferred by Clause 8 of the terms and conditions of appointment, have terminated the services of the Plaintiff by giving 03 months" notice or pay plus dearness allowance in lieu of such notice. But, Defendant No. 1-company chose not to proceed under the above referred clause and rather decided to hold a departmental inquiry against the Plaintiff. Clause 12 of the terms and conditions on which the Plaintiff was appointed provided that he would be governed by all rules and Regulations of service and standing orders and instructions of the company which were in force at that time and which could be framed in future for employees of his category and his acceptance of the appointment order carried that it is express agreement to abide by all such rules, Regulations, standard orders etc. Once Defendant No. 1 decided to hold an inquiry against the Plaintiff after giving charge-sheet to him, it is not open to it to rely upon Clause 8 of the terms and conditions on which the Plaintiff was appointed and say that even if his dismissal from service was wrong, he is not entitled to more than 03 moths" pay and dearness allowance. Dismissal from service on the basis of an adverse finding recorded by the Inquiry Officer carries a stigma attached to it and therefore, cannot be treated at par with a termination simplicitor under a termination clause such as Clause 8 of the terms and conditions of appointment of the Plaintiff.

The learned Counsel for the contesting Defendants has relied upon Executive Committee of Vaish Degree College, Shamli and Others Vs. Lakshmi Narain and Others, , Pearlite Liners Pvt. Ltd. Vs. Manorama Sirsi, and Dr. Sanjay Gupta Vs. Dr. Shroff''s Charity Eye Hospital, .

In Vaish Degree College (supra), the Executive Committee of the Appellant college passed a resolution terminating the services of the Plaintiff/Respondent. However, even before the formal resolution terminating his services could be passed, the Plaintiff filed a suit for an injunction restraining the Defendants from interfering with his duties as the Principal of the college. The injunction was refused to the Plaintiff by the trial Court but was granted by the first Appellate Court. The decision of the first Appellate Court was affirmed by the High Court. The decision of the first Appellate Court and the High Court was however set aside by the Supreme Court. During the course of the judgment Supreme Court held that a contract of personal service cannot ordinarily be specifically enforced, a Court normally would not give a declaration that the contract subsists and the employee, even after having been removed from service cannot be deemed to be in service against the will and consent of the employer. This rule, however, is subject to three well recognized exceptions - (i) where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India; (ii) where a worker is sought to be reinstated on being dismissed under the Industrial Law; and (iii) where a statutory body acts in breach or violation of the mandatory provisions of the statute.

There is No. dispute with respect to the proposition of law laid down in the above referred case and in fact, during the course of arguments, the Plaintiff also did not press for his reinstatement and sought only compensation/damages for his wrongful dismissal from service. Nowhere has Supreme Court said in the case of Vaish Degree College (supra) that even if an employee of a private employer, who is neither a public servant nor a worker is dismissed from service on the basis of an inquiry held in violation of the principles of natural justice and even if the order of dismissal is passed by an Authority who is biased against the employee, Civil Court cannot grant compensation to him for his wrongful dismissal from service.

In Pearlite Liners (P) Ltd. (supra), the Respondent was transferred from the Head Office of the Appellant company to Shimoga. She filed a suit seeking declaration that the transfer order was illegal and void and also sought an injunction restraining the Defendants from holding any inquiry against her on the ground that she had not complied with the transfer order. The trial Court held that Civil Court had No. jurisdiction to entertain the suit and the plaint was liable to be rejected. The Plaintiff could not succeed in the first Appeal but succeeded in the second appeal before the High Court. It was contended on behalf of the Appellant that the Plaintiff/Respondent was seeking her reinstatement as an employee of the Appellant company which amounted to specific performance of a contract of personal service and that was specifically barred under the provisions of Specific Relief Act. Noticing that the case before it was a case of private employment, which normally would be governed by the terms of the contract between the parties and further noticing that there was No. averment that the transfer order was in violation of any term of employment of the Plaintiff/Respondent, Supreme Court noted that even though it was a case of private employment, the management proposed to hold an inquiry against the Plaintiff. It was observed that in case of such insubordination termination of service would be a possibility and such a decision purely rests within the discretion of the management. It was further observed that an injunction against a transfer order or against holding a departmental inquiry in the facts of the case by the Court would be imposing an employee on the employer and enforcement of a contract of personal service, which is not permissible in law. It was also observed that an employer cannot be forced to take an employee with whom relations have reached a point of complete loss of faith between the two. In the present case, the Plaintiff is No. more pressing for his reinstatement. The only prayer being pressed by him is for grant of compensation/damages for his wrongful dismissal from service and such a relief, to my mind can definitely be granted by the Civil Court in an appropriate case.

In Sanjay Gupta (supra), the Appellant who was a medical officer with the Respondent filed a Writ Petition seeking quashing of the clause whereby the management had reserved right to terminate the services of its employees by giving one month''s notice and also sought a direction to the Respondent not to alter their service conditions and to regularize the services of Petitioner No. 2. It was held that if termination of services of the Appellant was illegal, his remedy was to file a suit for damages the Writ Petition was dismissed as not maintainable. This judgment is of No. help to the contesting Defendants since the Plaintiff is not pressing for his reinstatement in service.

In N.P. Mathai Vs. The Federal Bank Ltd. the Appellant was Manager in Trivendrum Branch of the Defendant bank. His services were terminated by the bank and one month''s salary in lieu of notice was given to him while terminating his service. The case of the Appellant was that the termination order was a penal action which had not preceded by an inquiry and therefore was invalid. This was also his contention that the contract of service did not empower the Defendant to terminate his services without sufficient reasons and his services were to endure till superannuation. The Appellant sought a declaration that he continued to be in services. Alternatively, he claimed damages by way of compensation for wrongful termination of his services. He was 44 years old at the time when his services were terminated and had he continued in service, he would have superannuated on reaching the age of 60 years. However, before the High Court the Appellant did not press for reinstatement and the compensation claimed by him was also reduced. The Defendant however, contended that it had got the right to terminate the services of the Plaintiff under Rule 28 and the termination was in accordance with said Rule. This was also the case of the Plaintiff before the Court that the action taken by the Defendant was without bona fides and he had been removed from service because he was a stumbling block in the way of promotion and prospects of brother of Chairman of the Defendant bank. The Defendant contended that the principles of natural justice could not be imported in the matter of enforcing the contract and were not applicable to termination of a contract by one of the parties to the contract. The High Court on an analysis of the facts and circumstances of the case was of the view that the Plaintiff''s services were terminated for an alleged misconduct and the termination order was passed to avoid an inquiry which the bank was bound to do under its own Code and therefore was in reality, a disciplinary action. The Court therefore directed payment of compensation to the Plaintiff for a wrongful termination of his services.

In M.S. Gurushankariah v. G.V. Hallikeri and Ors. (decided on 29th May, 1973 by High Court of Mysore) 1973(2) Mys.L.J 39, the Appellant/Plaintiff was appointed as "Course Director" with Respondent No. 30. His services were terminated. As per the terms of appointment he was to agree to work for a period of at least 03 years. The Appellant filed a suit claiming salary of the balance period of 03 years during which he was preventing from service on account of his wrongful dismissal after less than 06 months of service. The suit was decreed. The Appellant/Plaintiff before the High Court challenged the quantum of damages awarded by the Court below claiming that it was too low and deserved to be enhanced. The trial Court had awarded only 03 months" salary to the Appellant by way of damages. Observing that an employee, who was under a contract wherein the period of employment had been expressly stipulated, would be entitled to salary he would have drawn during the unexpired portion of such stipulated period of employment, subject, of course, to the rule of mitigation of damages, the High Court doubled the amount of damages awarded to the Plaintiff/Appellant.

For the reasons given in the preceding paragraphs I hold that since the inquiry and consequent terminal of the Plaintiff from service was vitiated in law on account of a reasonable apprehension of the Inquiry Officer and the Competent Authority, who passed the orders of dismissal being biased against him, he is entitled to appropriate compensation from Defendant No. 1 though is not entitled to reinstatement in service. The issues are decided accordingly.

Issues No. 4 & 6

Coming to the quantum of compensation as noted earlier, the Plaintiff has claimed Rs. 24,35,303/- towards damages for wrongful dismissal from service. The amount of damages claimed by the Plaintiff has been based on the last drawn salary and admissible allowances till the date on which he would have superannuated, had he not been dismissed from service. The amount includes Rs. 63,944/- towards gratuity. He has also claimed Rs. 1,00,000/- towards harassment and mental agony and Rs. 2,00,000/- for his defamation on account of illegal and arbitrarily dismissal.

While reserving judgment on 14th September, 2011 I directed the contesting Defendants to file within 03 working days, a statement showing the amount which Defendant No. 1 would have paid to the Plaintiff as gross emoluments and gratuity had he remained in service till that day in the same rank in which he was placed at the time of his dismissal from service. Unfortunately, neither the statement in terms of the directions of the Court has been filed nor the contesting Defendants filed an application seeking more time for this purpose. The Plaintiff was also directed to file an affidavit stating his gross income from the date he was dismissed from the service till the day the judgment was reserved. The Plaintiff has in his affidavit stated that he had No. income in the year 1992-93, 1993-94 and 1994-95 and had income of Rs. 72,11,430/- from 1995-96 till 2011-2012. During the course of arguments, the contention of the Plaintiff was that he should be paid the salary which the person who was placed in the same rank in which he was placed at the time of his dismissal from service was paid by Defendant No. 1, between the date of his dismissal from service and the date of the decree, after deducting from it the amount earned by him during this period. I however, find it difficult to accept the claim of the Plaintiff. No. employee has a vested right to be promoted. He has a right only to be considered against the post for which he becomes eligible for promotion. The promotion to a post, particularly in the case of a private employer depends upon several factors including his individual performance, his performance qua his peers, the confidence of the employer in him, the results shown and the targets achieved by him in the work assigned to him, financial health and performance of the employer company etc. etc. Therefore, it cannot be said with a reasonable certainty that the Plaintiff would have been granted one or more promotion had he not been dismissed from service. Also, it cannot be said as to what salary Defendant No. 1 would have paid to the Plaintiff had he been given promotion, in case he had continued in its employment.

In Shri S.P. Bhatnagar v. Indian Oil Corporation 1994 III AD (Del) 898, a judgment relied upon by the Plaintiff himself, the case of the Plaintiff was that his junior Mr. S.B. Budhiraja was promoted and appointed Managing Director of the Defendant Corporation and on account of his clean and meritorious track record and performance, but for the criminal proceedings initiated against him by the Defendant, he legitimately expected to have been promoted to the post of Managing Director in the year 1974 and therefore was entitled to all the benefits of that post including higher pay and allowances etc. The claim was disputed by the Defendant on the ground that Managing Director was a selection post and No. person can claim it has a right. The claim of the Plaintiff was rejected by a Division Bench of this Court.

The Plaintiff has in support of claim for the whole of the period he would have continued in service of Defendant No. 1, for his wrongful dismissal has relied upon the decision of Supreme Court in S.S. Shetty Vs. Bharat Nidhi, Ltd., . In that case, the Appellant before the Supreme Court was discharged from service on the ground that he had become surplus. An industrial dispute was thereupon referred by the Central Government to the Industrial Tribunal at Calcutta for adjudication. The order of discharge of the Appellant was held to be illegal and he was directed to be reinstated with wages from the date of discharge. The Respondent however, failed to implement the decision of the Labour Appellate Tribunal within the prescribed period. Thereupon, the Appellant before the Supreme Court claimed a sum of Rs. 47,738/- from the Respondent as compensation. The Tribunal awarded a sum of Rs. 1,000/- to him. The appeal filed by him having been dismissed by Labour Appellate Tribunal, he approached Supreme Court by way of Special Leave. Supreme Court, after considering all the circumstances of the case, computed the benefit of reinstatement at Rs. 12,500/- and awarded that amount to the Appellant, during the course of judgment, Supreme Court inter alia observed as under:

The position as it obtains in the ordinary law of master 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 is 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 feeling by the circumstances of his dismissal, nor in respect of extra difficulty of finding work resulting from 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 Ed., Vol. (2), p.559 para. 1040).

If the contract of employment is for a specific term, the servant would in that event be entitled to damages the amount of which would be measured prima facie and subject to the rule of mitigation in the salary of which the master had deprived him. (Vide Collier v. Sunday Referee Publishing Company, Ltd.). The servant would then be entitled to the whole of the salary, benefits etc. which he would have earned had he continued in the employ of the master for the full term of the contract, subject of course to mitigation of damages by way of seeking alternative employment.

Such damages would be recoverable by the servant for his wrongful dismissal by the master only on the basis of the master having committed a breach of the contract of employment. If, however, the contract is treated as subsisting and a claim is made by the servant for a declaration that he continues in the employ of the master and should be awarded his salary, benefits, etc., on the basis of the continuation of the contract, the servant would be entitled to a declaration that he continues in the employ of the master and would only be entitled to the payment of salary, benefits, etc., which accrued due to him up to the date of the institution of the suit.

In S.P. Bhatnagar (supra), the Appellant was placed under suspension and was dismissed from service on the basis of finding recorded in a departmental inquiry held against him. A suit was filed by him challenging his dismissal and seeking reinstatement or in the alternative Rs. 50,000/- as damages for wrongful dismissal. The learned Additional District Judge awarded a sum of Rs. 2250/- to him as damages. He filed an appeal before this Court and during pendency of the appeal he filed an application for additional evidence enhancing his claim for damages from Rs. 50,000/- to Rs. 25,32,750/-. The application was however, dismissed. The Division Bench which disposed of the appeal held that the inquiry held against the Plaintiff was bad in law and the finding arrived at therein was perverse based on No. evidence. It was held that he was entitled to declaration that he continued in service till he attained the age of superannuation on 28th July 1994 and to full back-wages and other benefits from the date of dismissal. The Court directed the Defendant to compute them along with all retirement benefits including pension etc. A decree in those terms was passed accordingly. In an appeal filed by the Respondent, it was agreed that the Plaintiff was not entitled to reinstatement but was entitled to get damages on the ground of wrongful dismissal in view of the fact that he had already attained the age of superannuation. Supreme Court directed the parties to lead evidence, to determine quantum of damages. After remand by Supreme Court the Plaintiff sought a decree for Rs. 71,46,268/-. The Division Bench noted that as per the reply affidavit of the Defendant/Respondent the Plaintiff was entitled to a sum of Rs. 605142.27 towards pay and allowance. This figure was arrived at on the basis of the revised pay on account of revision of the pay scales firstly on 1.8.1974 and then on 1.8.1882. The aforesaid amount was awarded by this Court to the Plaintiff as damages. His claim for compensation for harassment and mental torture was negated by this Court. While doing so, this Court relied upon the decision of Supreme Court in S.S. Shetty (supra) wherein it was held that No. compensation can be claimed in respect of injury done to the servant''s feelings by the circumstances of the dismissal.

I, however, notice that there has been some shift in the approach of the Apex Court, with respect to payment of back wages, in case the dismissal of the employee from service is found to be bad in law. In P.G.I. of M.E. and Research, Chandigarh Vs. Raj Kumar, , Supreme Court observed as under:

Payment of back-wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and No. straight-jacket formula can be evolved, though, however, there is statutory sanction to direct payment of back-wages in its entirely. As regards the decision of this Court in Hindustan Tin Works (P) Ltd. be it noted that though broad guidelines, as regards payment of back-wages, have been laid down by this Court but having regard to the peculiar facts of the matter, this Court directed payment of 75% back-wages only.

In U.P. State Brassware Corpn. Ltd. and Another Vs. Udai Narain Pandey, Supreme Court inter alia observed as under:

A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an industrial court shall lose much of its significance.

The changes brought about by the subsequent decisions of this Court probably having regard to the changes in the policy decisions of the government in the wake of prevailing market economy globalization, privatization and outsourcing is evident.

In Allahabad Jal Sansthan Vs. Daya Shankar Rai and Another, , Supreme Court inter alia observed as under:

We have referred to certain decisions of this Court to highlight that earlier in the event of an order of dismissal being set aside, reinstatement with full back-wages was the usual result. But now with the passage of time, it has come to be realized that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all, for a period that was spent unproductively, while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed. It is necessary for us to develop a pragmatic approach to problems dogging industrial relations. However, No. just solution can be offered but the golden mean may he arrived at.

In Kendriya Vidyalaya Sangathan and Another Vs. S.C. Sharma, , Supreme Court granted only 25% of total back-wages to the Respondent. In Hindustan Motors Ltd. Vs. Tapan Kumar Bhattacharya and Another, , Supreme Court awarded 50% of the back-wages till the date of reinstatement of the Respondent. In U.P. State Electricity Board v. Laxmi Kant Gupta 2009 LLR 1 , Supreme Court referring to its decision in U.P. State Brassware Corporation Ltd. (supra) and Haryana State Electronics Development Corporation Ltd. Vs. Mamni, interalia observed as under:

Thus it is evident that there has been a shift in the legal position which has been modified by this Court and now there is No. hard and fast principle now that on the termination of service being found to be illegal, the normal rule is re-instatement with back-wages. Compensation can be awarded instead, at the discretion of the Labour Court, depending on the facts and circumstances of the case.

The proposition of law, which emerges from these judgments, is that even if the dismissal of an employee from service is illegal, he is not entitled to whole of the back-wages as a matter of right, and the Court needs to award a suitable compensation after considering all the facts and circumstances of the case before it.

Taking into consideration all the facts and circumstances of the case including the fact that the Plaintiff has been practicing as an Advocate of this Court seems to be doing well as is evident from the income disclosed in his affidavit, I am of the view that the ends of justice would be met if the Plaintiff is awarded an all inclusive compensation amounting to Rs. 15,00,000/- on account of his wrongful dismissal from service. He will not be entitled to any pendent lite and future interest on this amount.

ORDER

A decree for recovery of Rs. 15,00,000/- with proportionate costs is passed in favour of the Plaintiff and against Defendant No. 1. The suit against all the other Defendants is dismissed without any orders as to costs. Defendant No. 1 is granted 04 weeks" time to pay the decree amount, failing which 6% p.a. interest shall be paid to the Plaintiff from the date of decree till the date of payment.

Decree Sheet be drawn accordingly.