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Star Chemicals Vs. Bhisham Kumar Suri - Court Judgment

LegalCrystal Citation
SubjectService
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 899 of 1981
Judge
Reported in1983(2)BomCR543
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rule 6
AppellantStar Chemicals
RespondentBhisham Kumar Suri
Appellant AdvocateN.B. Shetye, D.K. Ghaisas, Advs. and ;Nishita Pradhan, Adv.
Respondent AdvocateG.L. Bhatia, Adv.
Excerpt:
.....his absence - appellants challenged decree which was dismissed - appeal before court - appellants claimed that decree awarded by court without any evidence - courts while dealing with ex-parte cases should take due care to see that case was prima facie proved - court partly allowed appeal by modifying order passed by trial court taking into consideration available evidence. - - 14 of 1974, as well as the order passed by the said court dated 6th august, 1979, dismissing the application filed by the defendant company for setting aside the ex parte decree. it was wholly illegal and, therefore, he filed the present suit claiming damages for wrongful removal as well as pay for notice period and other emoluments. 6,000/- as loss of provident fund for period of service as well as notice..........in substance it is contended by shri shetye that without any cogent evidence on record the learned trial judge committed an error in passing the decree of rs. 50,000/-. this is more so when the learned judge himself has observed that the claim as put up looks inflated.5. on the other hand it is contended by shri bhatia, learned counsel for the respondent-plaintiff that the defendant cannot be heard on merits of the matter as they have chosen to remain absent. the evidence of the plaintiff has gone unchallenged and, therefore, the learned trial judge was right in accepting the said evidence and passing the decree for the whole amount. he also contended that the delay in filing the appeal was wrongly condoned. according to him the order of termination was not a simple one but amounted to.....
Judgment:

C.S. Dharmadhikari, J.

1. This appeal is filed by the appellant-defendant Company against the judgment and decree passed by the Civil Judge (Senior Division), Thane dated 22nd June, 1975, in Special Civil Suit No. 14 of 1974, as well as the order passed by the said Court dated 6th August, 1979, dismissing the application filed by the defendant Company for setting aside the ex parte decree.

2. The respondent plaintiff Suri filed a suit for recovery of certain amount towards pay for notice period and for other emoluments. It is an admitted position that the plaintiff was appointed by the defendant Company vide the order dated 25th November, 1969, as a Resident Manager at a Phosphorous Plant of the company situated at Thane on the following conditions :

'(1) You will be paid a consolidated salary of Rs. 2,750/- per month.

(2) You will be given reasonably furnished free accommodation on site.

(3) You will be provided with Company's transport.

(4) Provident Fund, Medical facilities etc. will be accorded to you as to other employees and as per rules and regulations of the Company as prevailing.

(5) The appointment is on probation for a period of 6 months.

(6) You will be joining your duties as early as possible but not later than 1st February 1970.'

It is the case of the plaintiff that he joined his duty in pursuance of the said order of appointment. Initial appointment was on probation. Thereafter, plaintiff continued to be in service till he was removed vide the Company's letter dated 3rd July, 1971. It is the case of the plaintiff that the said order of termination amounted to his wrongful dismissal. It was wholly illegal and, therefore, he filed the present suit claiming damages for wrongful removal as well as pay for notice period and other emoluments. It appears that inspite of services of summons the defendant remained absent on the date of the hearing and, therefore, an ex parte decree came to be passed against the defendant on 22nd June, 1975, whereby the learned Civil Judge (Senior Division), Thane directed the defendant to pay an amount of Rs. 50,000/- to the plaintiff along with proportionate costs.

3. It then appears that the application for setting aside the ex parte decree was filed by the defendant, which also came to be dismissed. As already observed, it is against these orders that the present appeal is filed. Initially though the appeal was filed even against the main decree also, proper Court-fee was not paid. This Court, therefore, directed the defendant to file proper appeal, pay necessary Court-fee and also file an application for condonation of delay. After hearing both sides by the order dated 23rd November, 1981, Civil Application No. 3735 of 1981, was allowed and the delay was condoned and then the appeal was registered as a regular First Appeal.

4. Shri Shetye, learned Counsel appearing for the appellant Company contended before me that the learned Judge has committed an error in granting 12 months' pay in lieu of notice. He also contended that the learned Judge has committed an error in granting Rs. 7,800/- as compensation for free furnished accommodation when this was not a term of the contract. He also contended that no decree could have been passed for Rs. 2,400/- for free conveyance nor a decree could have been passed for Rs. 6,000/- as loss of provident fund for period of service as well as notice period, nor he could have been compensated for earned leave by granting him amount in lieu of leave salary. According to Shri Shetye in the contract of employment it is not stated as to how the service of the plaintiff could be terminated. But initially the plaintiff was appointed on probation and all through he was continued as such for he was never confirmed. In these circumstances his services could have been terminated by giving him one month's notice. According to Shri Shetye one month's notice could be termed to be reasonable notice for terminating the services of the plaintiff. In substance it is contended by Shri Shetye that without any cogent evidence on record the learned trial Judge committed an error in passing the decree of Rs. 50,000/-. This is more so when the learned Judge himself has observed that the claim as put up looks inflated.

5. On the other hand it is contended by Shri Bhatia, learned Counsel for the respondent-plaintiff that the defendant cannot be heard on merits of the matter as they have chosen to remain absent. The evidence of the plaintiff has gone unchallenged and, therefore, the learned trial Judge was right in accepting the said evidence and passing the decree for the whole amount. He also contended that the delay in filing the appeal was wrongly condoned. According to him the order of termination was not a simple one but amounted to dismissal, therefore, on that count also the plaintiff was entitled to damage. He also made a grievance that the learned trial Judge committed an error in not granting any interest to the plaintiff.

6. Thus, in substance the matter was argued before me on merits of the claim. So far as the order passed by this Court dated 23rd of November, 1981, condoning the delay in filing the appeal is concerned, it has become final, so far as this Court is concerned. It is no doubt true that the decree passed is an ex parte decree. However, it cannot be forgotten that even if the defendant remained absent and the matter proceeded ex parte, the Court had still to give its finding on merits. In an ex parte proceeding the Court is as much bound to pass a legal order as in cases which may be contested. The absence of the defendant does not absolve the Court from acting according to law. If nobody else is, at least courts are bound to act and discharge their duties in a legal manner. In an ex parte proceeding it is as much the duty of the Court to see that the claim made in the suit is legally and factually established. In an ex parte proceeding also the courts shall be bound to dismiss the plaintiff's case, if the plaintiff is not legally entitled to. As a matter of fact every Court while dealing with the ex parte case should take due care to see that the plaintiff's case is prima facie proved. The plaintiff is bound to prove his case to the satisfaction of the Court and his burden is not lightened merely because the defendant is absent. The Court is not bound to pass a decree at once only because the defendant is absent. Therefore, it will have to be seen in the present case as to whether the plaintiff has proved his claim. Apart from the documentary evidence. Immediately after the plaintiff received notice of termination dated 3rd July, 1971, he wrote a letter to the Company wherein he has stated that reasonable period of notice of termination in his case would be about a year. However, he has further stated that he would make efforts to get an alternative appointment and if his efforts matured, and he is able to get suitable job earlier, then in that case the Company should pay him up to the date of joining new service. Thus initially in the notice itself the plaintiff had made a claim for wages for a period of about a year or till he is able to find suitable job, whichever is earlier. From the evidence of the plaintiff it is quite clear that he got a job after seven months. Though he has stated in his evidence that in the said job he was not adequately paid, there is nothing on record to show as to what his salary is in the new job. Therefore, without entering into the controversy as to whether what could be termed to be reasonable period of notice in the present case, which fact must obviously depend upon the facts and circumstances of each case, even on the basis of the evidence of the plaintiff, it can safely be said that he is not entitled to the pay for more than seven months, because admittedly thereafter he got alternate job. Thus, in the present case it can safely be held that the learned Judge of the trial Court committed an error in accepting the plaintiff's claim at Rs. 33,000/- which is equal to 12 month's pay. At the most the plaintiff could have been awarded compensation equal to 7 month's pay only, which comes to Rs. 19,250/-.

7. So far as his claim for earned wages for the month of June 1971, and three days of July 1971, amounting to Rs. 3016-13P, is concerned, it was rightly granted by the trial Court.

8. So far as the plaintiff's claim on account of compensation for free furnished accommodation is concerned, he has not proved the same claim also. From the material placed on record it appears that the plaintiff's possession qua the quarters continued up to 9th of November, 1971. This is clear from the correspondence produced by the plaintiff himself including the letter of the Company dated 9th November, 1971. The plaintiff was given free furnished accommodation on the site. But this does not mean that though he is entitled to notice before termination, he will be also entitled to compensation towards free furnished accommodation. This is more so, when it is not even stated by the plaintiff that because of this he was put to any loss otherwise. Only because the appointment order refers that he will be provided with free furnished accommodation, it cannot be said that the plaintiff will be entitled to an amount in lieu thereof during the period he was out of employment. To the similar effect is the case with the so-called car allowance. It is no doubt true that after expiry of the probationary period the plaintiff continued to be in employment. However, it is an admitted position that no confirmation order was ever issued. There is nothing on record to show that the plaintiff was covered by either the Provident Fund Act or the scheme or rules or regulation of the Company. It is also not the case of the plaintiff that when he was in the employment his provident fund was being deducted nor it is his case that he contributed his share towards the provident fund. In this view of the matter obviously his claim towards provident fund cannot be accepted. Similar is the case of medical aid for 12 months which rightly was not accepted by the trial Court though his claim for Rs. 710-26 P. towards medical bills already submitted by him will have to be maintained. The plaintiff has not proved his claim for earned leave salary also except 21 days earned leave amounting to Rs. 1925/-. Therefore, in my opinion to that extent the decree passed by the trial Court deserves to be modified.

9. In this context it is pertinent to note that in para 6 of his judgment the learned Judge of the trial Court has observed that the claim put up by the plaintiff was inflated one. Having held so, it was his duty to have scrutinised the claim made by the plaintiff in its proper prospective and then allow it. Thus, the decree passed by the trial Court will have to be modified. In the final analysis the plaintiff will be entitled to amount of Rs. 19, 250/- for the period he was unemployed. Rs. 3016-14 P. as earned wages for month of June 1971, and three days of July 1971, and Rs. 710-26 P. towards the medical bills already preferred by the plaintiff and an amount of Rs. 1925/- towards earned leave. It is no doubt true that it is contended by Shri Bhatia that the plaintiff's claim on other items also should have been allowed by the learned trial Judge. It is not possible for me to accept this contention in an appeal filed by the defendant, when the plaintiff has not chosen to file an appeal or cross-objection so far as that part of the judgment and decree of the trial Court is concerned.

10. Thus, in the result the appeal is partly allowed. The decree granted by the learned Civil Judge, Thane is modified and the defendant is directed to pay an amount of Rs. 24901-40 P. to the plaintiff along with proportionate costs in the trial Court. There will be no order as to costs in the trial Court. There will be no order as to costs in the present appeal. In addition to the said amount of Rs. 24901-40 P. on which the plaintiff will be entitled to the interest at the rate of 6% per annum from the date of the decision of the trial Court on the application of the appellant for restoration of the suit i.e. 6th August, 1979, till realisation of the amount. The appellant-defendant is granted six weeks time to deposit the decretal amount in the trial Court. On such deposit being made, the amount deposited should be paid to the plaintiff Shri Suri after due verification. The appellant-defendants are at liberty to apply for refund of Court-fees as per rules, if permissible.


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