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«versus AMERCIAN EXPRESS BANK LTD.. Defendant Through: Mr. Sumit Bansal, Mr. Ateev Mathur and Mr. Amol Sharma, Advocates. CORAM: HON’BLE MR. ...»


+ CS(OS) No.936/2004

23rd September, 2015


VINOD PATHAK..... Plaintiff

Through: Ms. Garima Prashad, Advocate.



Through: Mr. Sumit Bansal, Mr. Ateev Mathur

and Mr. Amol Sharma, Advocates.



To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL) 1. Plaintiff Sh. Vinod Pathak, who was an employee; being a security in-charge; employed with the defendant, has filed the present suit seeking the reliefs of declaration, injunction and damages as under:PRAYER “For the various facts and reasons stated above, the plaintiff prayed

that the Honourable Court be pleased to:

A. Declaration may very kindly be granted by holding that the resignation letter dated 6 July 2004 which has been obtained by using force, undue advantage and coercion be declared as null and void, illegal and of no legal consequence.

CS(OS) No. 936/2004 Page 1 of 15 B. Declaration may very kindly be granted to the effect that the contract of the employment between the party subsist and continue till the plaintiff is reinstated and restore in service.

C. Declaration may very kindly also be granted to the effect that the plaintiff is entitled of the salary, perks and all other consequential benefits from the date when he was forced to tender his resignation till he is reinstated in service.

D. Mandatory injunction may also be granted thereby directing the defendant not to give affect to the purported resignation letter dated 6th July 2004, and the operation and effect of the alleged resignation letter may also be stayed.

E. Mandatory injunction may also be granted thereby directing the defendant to permit the plaintiff for performing his visual duties, which he has earlier performing without any hindrance and obstructions.

F. Defendant be restrained from enforcing the resignation order which has been forcibly taken by the Defendant from the plaintiff vide letter dated 6/7/2004.

G. Plaintiff be allowed to join the inquiry which has been initiated against him.

H. Plaintiff be restored and reinstated to the original position where h

–  –  –

is a private employment since the defendant is not a State or an authority of State as per Article 12 of the Constitution of India. Once the contract of employment is a private contract of employment, not being governed by the statutory rules or provisions of the Constitution of India, the issue which arises is whether such a suit seeking relief of reinstatement of service is permissible or if the plaintiff is entitled to the monetary amount and damages for every month as claimed by him and the other related reliefs.

–  –  –

were framed way back on 1.8.2005. Thereafter for various years evidence of the plaintiff was being recorded and during this period an application was filed by the defendant being I.A No. 2629/2004 for amendment of the written statement to add certain pleas with respect to damages not being granted to the plaintiff because plaintiff was gainfully employed after termination of service with the defendant and also that the plaintiff has run its own security agency and thus carried on business disentitling the plaintiff to the claim of damages.

4. When this application being I.A No. 2629/2004 came up before

–  –  –

5. Today, counsel for the plaintiff states that the plaintiff has a right to seek the reliefs in the suit and therefore, the suit must be continued.

–  –  –

Employment Letter of the plaintiff dated 5.7.2002 and this Clause 8 reads as under:8. After confirmation, if you wish to resign from the services of the Company, you will be required to give one month’s notice in writing or one month’s Basic salary in lieu thereof. Likewise the Company

–  –  –

Employment Letter shows that termination of employment can take place as a no fault termination by giving one month’s notice or basic salary in lieu thereof. Once such a clause is there, at best the entitlement of the plaintiff will only be to one month’s salary even assuming defendant is guilty of breach of contract in wrongly taking resignation from the plaintiff. That a plaintiff who is an employee of a private employer is only entitled to damages as specified in the contract of employment as has been held by the Supreme Court in the judgment in the case of S.S. Shetty Vs. Bharat Nidhi Ltd. AIR 1958 SC 12. The ratio of this judgment of the Supreme Court has been applied by me in the judgment in the case of Shri L.M. Khosla Vs.

Thai Airways International Public Company Limited and Anr. CS(OS) No. 673/1997 decided on 1.8.2012. The relevant paras of this judgment are paras 2 to 8 of the said judgment and which paras read as under:

–  –  –

defendant, it is seen that the plaintiff had taken loans from the defendant and as on 6.7.2004 a sum of Rs.1,21,164.83/- was due to the defendant. Plaintiff instead of being given only one month’s salary, was given three months’ basic salary amounting to Rs.1,03,099/- and even after this adjustment plaintiff still owes a sum of Rs.17,175.18/- to the defendant.

9. In view of the above, plaintiff is not entitled to declaration and injunction with respect to continuing of his services with the defendant or any damages being paid by the defendant to the plaintiff or the other related reliefs claimed in the plaint as not only the due compensation as per law is paid but also that such a contract for personal service, and that too

–  –  –

same is dismissed with costs. Defendant will file certificate of costs incurred for this suit in terms of the fees payable by the defendant to its advocates and such costs towards fees will be the costs of the suit in favour of the defendant and against the plaintiff. The certificate of fees by the defendant will be supported by the certificates of lawyers of having received the fees from the defendant. Decree sheet be prepared.

–  –  –

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