Anjum Nath vs British Airways PLC and Others

Vipin Sanghi, J.—By this order 1 propose to dispose of the aforesaid two applications filed by defendant No. 2 and 3 respectively, under Order 1 Rule 10(2) read with Order 7 Rule 11 CPC and Order 6 Rule 12 CPC, seeking the relief of striking off their respective names from the array of defendants and rejecting the plaint qua them. The Plaintiff has filed the present suit for declaration, recovery of money and damages. It is averred in the plaint that the Plaintiff was earlier the H.R. Manager, South Asia of British Airways based in India. Plaintiff was employed for over 28 years. Defendant No. 2 and 3 worked as General Manager of British Airways and Regional Head of British Airways.

A perusal of the pleadings from para 6 of the plaint onwards shows that the case of the Plaintiff is that on 8th July 2002, the departmental head Ms. Amanda Ball during a routine meeting informed the plaintiff that her job had been merged with another newly created role of corporate affairs since and the Plaintiff was not qualified to handle this new role of HR and Corporate Affairs Manager of the South Asia, she was required to leave. This was contrary to the email sent by the same person namely Ms. Amanda Ball earlier in May 2002. It is alleged that the Plaintiff was confined to the Conference Room on 8th July 2002 where this meeting took place with Ms. Amanda Ball for nearly two and half hours till the Plaintiff agreed to take the decision to leave the organisation. It is alleged that the Plaintiff was put under duress and left with no option but to tender her resignation, or in alternative to have her contract as Managing Staff terminated with three months pay in lieu of notice. It is further alleged that Ms. Amanda Ball had the drafts of the two letters ready while giving the aforesaid options to the Plaintiff. She was given no time to think about the matter. It is further alleged that Ms. Amanda Ball shocked the Plaintiff by stating that the Plaintiff would be entitled to receive compensation under the UK Severance policy, under which one and half week''s salary upto a maximum of 30 weeks is paid to the employee severing his relationship with the organisation as opposed to the EVR Scheme for the staff in India, whereunder the employees are entitled to computation of their severance package @ two months salary for each year of completed service. It is stated that if the local EVR Schemes for staff in India were to be adopted, the Plaintiff would have received 56 months salary on account of 28 years of service. It is further alleged that despite the Plaintiff having informed Ms. Amanda Ball about the local EVR, she was adamant and the Plaintiff had no option but to tender her resignation.

It is further alleged that the Plaintiff most reluctantly and under duress submitted a letter on 8.7.2002 to Mr. Andy Stern, who is now defendant No. 2 in the suit, on 8th July 2002.

This letter was accepted by Mr. Andy Stern on the same day. It is further averred that the promptitude with which Mr. Andy Stern accepted the resignation shows his mala fide. Para 11 of the plaint once again makes reference to the duress exercised by Mr. Amanda Ball upon the Plaintiff.

The applicants/defendant Nos. 2 and 3 submit that a reading of the plaint does not disclose any cause of action against them in their personal capacity. Defendant No. 2 and 3 were merely discharging their duties as General Manager, South Asia and as Director, British Airways PLC respectively. Applicants further submit that even a perusal of the prayer made in the suit would show that they are directed against defendant No. 1. The first prayer is for a decree of declaration, declaring that the Early Retirement Scheme as applicable in India on 8.7.2002 was also applicable to the Plaintiff and that she should have been paid her dues under that scheme, and not under the UK Business Response Scheme. It is submitted that the applicants have no concern with the applicability or otherwise of the Early Retirement Scheme as applicable in India to the case of the Plaintiff. The said scheme is of the defendant No. 1 and the applicants are in no way concerned even if the said relief is given to the Plaintiff. The second relief is for a money decree for a sum of Rs. 55 lakhs which includes damages as mentioned in para 25 of the plaint. However, a perusal of para 25 shows that the averments contained therein pertain entirely to the defendant No. 1. The third and fourth reliefs are for the grant of interest and costs.

In response, Counsel for the plaintiff submits that defendant No. 1 and 2 as earlier impleaded had filed a similar application (IA No. 2429/2004) for deletion of the names of the present applicants from the array of parties, which has been rejected by this court by detailed order dated 19th October 2005. Counsel submits that the said order was passed after considering the averments made in the plaint, as well as considering the various judicial pronouncements of this court as also of the Hon''ble Supreme Court. He submits that the present is, in fact, another attempt made, this time in the names of defendant Nos. 2 and 3 who were earlier defendant No. 3 and 4, and it tantamounts to a review of the earlier order dated 19th October 2005.

I may notice that against the said order dated 19th October 2005 passed in I.A. No. 2429 of 2004, British Airways preferred a First Appeal, which was registered as F.A.O. (OS) No. 68/2006. The said appeal was taken up by Hon''ble Division Bench on 20th February 2006 and the following order was passed:

Counsel for the appellant says that he wishes to withdraw this appeal with the liberty to file an application and he further says that he will take appropriate steps with regard to the other respondents against whom, no relief has been sought in this appeal.

If an application by the affected persons is filed, we are sure that what is said in the matter will not come in the way of the disposal of the said application.

The application stands dismissed as withdrawn with the liberty aforesaid.

(emphasis supplied)

A perusal of the order passed by the predecessor of this court shows that one of the grounds on which the application (IA No. 2429/2004) made by British Airways was rejected was that the then defendant No. 3 and 4, who are the present applicants, had not made any grievance of their being impleaded as defendants in the suit and it was only British Airways who was making a grievance of the same. Before the Hon''ble Division Bench, it was submitted by the appellant British Airways that the effected persons i.e. the present applicants would take appropriate steps. On this, the Division Bench observed that in case the affected persons file an application for the same relief, the observation made in the matter, namely, by the learned Single Judge, would not come in the way of the disposal of the said application.

From the aforesaid, what I make of the order of the learned Singh Judge as well as the Hon''ble Division Bench is that while considering the present applications, this court has to examine the issue as to whether defendant No. 2 and 3 are necessary and proper parties afresh, without being bound by the observations made by the predecessor of this court in its order dated 19th October 2005, as the order passed by the Learned Single Judge merged in the order passed in the appeal.

Counsel for the plaintiff relies upon the decision of a Division Bench of this court in Kirloskar Electric Company Ltd. and Another Vs. Utkal Solvent Extractions (P) Ltd. and Others, to contend that the present applicants are proper parties, if not necessary parties to the suit, and that they cannot seek their deletion since there presence is necessary for adjudication of the present controversy involved in the suit.

Counsel for the plaintiff has also referred to paragraph 9 of the order passed by the predecessor of this court on 19th October 2005 in IA No. 2429/2004.

These rival submissions of the parties call for an analysis of he power conferred on this Court under Order 1 Rule 10(2) of CPC to adjudicate on the present controversy effectively.

In Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Others, with regard to the object of the Rule 10(2) of Order 1 CPC it was observed:

The object of Rule 10(2) of Order 1 is not to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objective. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has though of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest.

(emphasis supplied)

Why is the presence of defendant nos. 2 & 3 necessary to effectually and completely settle the questions arising in the suit? This is not explained by the plaintiff and there can be no satisfying explanation to this question on a plain reading of the plaint.

From the plaint, two primary issues of fact arise. The first is, whether the plaintiff was subjected to duress or coercion to secure her resignation letter dated 8th July, 2002, second is whether the Indian Severance Package or the one applicable in UK is to apply to the plaintiff.

In The State Trading Corporation of India Ltd. Vs. Chittoor Co-operative Sugar Ltd. and others, this Court observed that it is essentially for the plaintiff to decide as to who has to be impleaded as a defendant. If, however, it is found that a party has been improperly joined, its name can be struck off. If a defendant has no connection with the merits of the case, then it would not be necessary to retain that party and the Court would be justified in striking off the name of the said defendant.

In International Air Transport Association Vs. Aziz Fatima Hasnain and Another, the provisions of Order 1 Rule 10(2) of the CPC relating to the striking off the name of a party was considered. This Court held that while dealing with this issue the question for determination is whether the party was improperly joined as plaintiff or defendant. If the Court concludes that plaintiff or defendant has been improperly joined, the name of such party can be struck out. The party introduced to a litigation who has no connection with the relief claimed in the plaint, is neither a necessary nor a proper party. The court can, therefore, strike out under this rule the name of any such party.

In Jai Narain N. Sadh Shadwara Vs. Pan American World Airways and Others, while citing with approval the decision in International Air Transport Association case (supra) this Court held that bare allegations of fraud or collusion were not sufficient to maintain an action against the parties arrayed in the memo of parties unless material particulars disclosing cause of action against the defendants so arrayed were spelled out in the plaint itself. Thus, where the plaint does not discloses cause of action against a party in the suit, his name may be deleted from array of parties.

Now in the present case, there are no allegations, whatsoever, of any duress or coercion attributed to defendant nos. 2 and 3. No such role is even attributed to them. Therefore, the question of the plaint containing any particulars, much less material particulars in respect of duress or coercion against defendant nos. 2 and 3 does not arise at all.

Even Order 7 Rule 11 empowers the Court to reject a plaint where it fails to disclose cause of action. The plaint may be totally rejected or may be rejected against a particular defendant, if no cause of action is disclosed against all the defendants or a particular defendant respectively.

The decision cited by the plaintiff in the case of Kirloskar Electric Co. Ltd. (supra) is clearly distinguishable on facts. That was a case where Kirloskar Electric Co. Ltd. had given their own certificate in respect of their product i.e., the alternate or, which was a part of the assembly (direct generating set) purchased by Utkal Solvant Extractions (P) Ltd. from M/s. Greaves Ltd. This certificate was supplied to the purchaser. Moreover, the supplier of the assembly, i.e. M/s. Greaves Ltd. sought to hold Kirloskar responsible for the malfunctioning of the assembled Diesel Generating Set. In those circumstances, the Court held that in the complaint filed by the purchase before the MRTP commission, Kirloskar was a necessary party.

The reliance placed on Para 9 of the order dated 19.10.2005 in IA No. 2429/2004 is also of no avail to the plaintiff. Firstly, this order can not come in the way of the applicants in view of the order of the Hon''ble Division Bench. In any event, in the absence of defendant nos. 2 and 3 (who were defendant nos. 3 and 4 earlier), the involvement of defendant nos. 2 and 3, or rather the lack of it, was not placed before the Court in a proper perspective. Even a perusal of the extracted paras 8, 10, 12, 13 to 15 of the plaint would show that the plaintiff does not attribute any specific and clear assurance or promise to either defendant no. 2 or to defendant no. 3 that the plaintiff would be given the Indian Severance Package and not the UK Severance Package. Merely, an assurance to act fairly is attributed to them. In any event, and more importantly, no such assurance is attributed to them prior to the submission of her letter of resignation dated 8.7.2002 by the plaintiff. It is not the plaintiffs case that only upon any such alleged assurance by defendant nos. 2 and 3, she tendered her resignation. Any subsequent assurance, in any event, even if given would not create any right in favour of the plaintiff either contractual or equitable and would not give her a cause of action against defendant nos. 2 and 3. Above all, the issue whether it is the Indian Severance package or the U.K. Severance package, which is to apply to the Plaintiffs case is an issue which does not concern defendant No. 2 and 3 and only concerns defendant No. 1. Having considered the rival submissions of the parties, I am of the view that the plaint does not disclose any cause of action against defendant No. 2 and 3 and they are neither necessary nor proper parties to the present suit and that their continuation as defendants in the suit is wholly unnecessary. Accordingly, I allow these applications and delete defendant nos. 2 and 3 from the array of defendants. The plaintiff should file an amended memo of parties within two weeks.

IAs stand disposed of.

List the matter for hearing on other IAs on 12th October 2007.