A meaningful reading of the Plaint shows that the respondent
has not sought any re-instatement in service but had claimed that the
termination is illegal and hence null and void.
13. Learned counsel for the respondent before the trial court
categorically stated that the respondent did not seek any reinstatement.
14. Even if prayer (a), as framed, could not be granted, respondent
could claim damages etc. for wrongful termination in case respondent
is able to establish that the termination is illegal or contrary to any
settled principles and that is what the respondent has sought in prayers
(b) to (d).
15. In case the contentions of learned counsel for the petitioner
were to be accepted, then respondent/plaintiff would be left
remediless. On the one hand, as an employee, she cannot claim the
relief of reinstatement and on the other hand the employee she is
stated to be barred from claiming any damages. That can never be the
intention of the law.
16. It is also a settled position that under order 7 Rule 11 CPC, a
plaint cannot be dissected and rejected in part. The plaint has to be
rejected as a whole or not at all.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 27.09.2019
C.R.P. 215/2019
INTERTEK INDIA PVT LTD Vs PRIYANKA MOHAN
CORAM:-
MR JUSTICE SANJEEV SACHDEVA
1. Petitioner impugns order dated 21.08.2019 whereby the
application of the petitioner under Order 7 Rule 11 (d) of the CPC has
been dismissed.
2. Subject suit was filed by the respondent seeking declaration and
damages.
3. Respondent/Plaintiff is an ex-employee of the petitioner and
was employed as a Business Development Manager with the
petitioner-company. Her services were terminated on 25.02.2011.
4. Being aggrieved by the termination of the services, she filed the
subject suit, inter-alia, claiming a declaration that termination of her
services by letter dated 25.02.2011 was null and void and further
sought a decree of damages on account of mental harassment, loss of
reputation, etc.
5. Subject application under Order 7 Rule 11 (d) was filed
contending that the contract of services being a terminable contract,
no Suit would lie for re-instatement of services.
6. The trial court by the impugned order noted the contention of
learned counsel for the respondent/plaintiff that respondent had
merely sought a declaration that her termination being illegal be
declared as void and had not sought enforcement of contract of
personal services i.e. re-employment with the petitioner company,
however, damages had been prayed for.
7. Learned counsel for the petitioner submits that the relief sought
by the respondent in prayer (a) is declaration that termination is null
and void which really amounts to a declaration that the termination is
non-est and respondent is liable to continue in services; which relief
cannot be granted in a case of termination of a service contract.
8. Further it is contended that prayer (a) and prayers (b) to (d)
which seek a decree of damages are mutually exclusive. However,
prayers (b) to (d) flow from prayer (a) and at the time of inception of
the Suit the plaintiff had to elect as to which relief she was seeking
and not having done so, the plaint was liable to be rejected.
9. Learned counsel for the petitioner submits that since the
respondent/plaintiff had sought re-instatement which is not
permissible and prayers (b) to (d) flow from prayer (a), even these
payers could not be granted and as such the Plaint is liable to be
rejected as a whole.
10. I am unable to accept the contention of learned counsel for the
petitioner. Respondent had filed the subject Suit claiming that
termination is illegal. In paragraph 1 of the plaint respondent had
described herself as an ex-employee which indicates that respondent
had accepted that she is no longer in services. The respondent
throughout the plaint has made averment that her services were
terminated illegally. Reference in particular may be had to paragraphs
1, 24 and 27 where she has categorically stated that the notice of
termination is illegal.
11. No doubt, the expression ‘null and void’ would imply non-est,
however, if prayer (a) were to be interpreted in the manner in which
learned counsel for the petitioner contends, the same would imply that
the termination is non est and respondent/plaintiff continues in
services, but that is not what the Respondents seeks.
12. A meaningful reading of the Plaint shows that the respondent
has not sought any re-instatement in service but had claimed that the
termination is illegal and hence null and void.
13. Learned counsel for the respondent before the trial court
categorically stated that the respondent did not seek any reinstatement.
14. Even if prayer (a), as framed, could not be granted, respondent
could claim damages etc. for wrongful termination in case respondent
is able to establish that the termination is illegal or contrary to any
settled principles and that is what the respondent has sought in prayers
(b) to (d).
15. In case the contentions of learned counsel for the petitioner
were to be accepted, then respondent/plaintiff would be left
remediless. On the one hand, as an employee, she cannot claim the
relief of reinstatement and on the other hand the employee she is
stated to be barred from claiming any damages. That can never be the
intention of the law.
16. It is also a settled position that under order 7 Rule 11 CPC, a
plaint cannot be dissected and rejected in part. The plaint has to be
rejected as a whole or not at all.
17. Further contention of the learned counsel for the petitioner is
that trial court has erred in holding that all reliefs, claimed by the
respondent are maintainable and as such prejudice is likely to be
caused to the petitioner at the final stage.
18. The apprehension expressed by learned counsel for the
petitioner is misplaced.
19. The Advocate for the respondent has very categorically made a
statement, as is recorded by the Trial Court, that respondent has not
sought a contract for personal service, i.e., re-employment in the
petitioner company.
20. Even otherwise under Order 23 CPC, a plaintiff can abandon
any part of claim. The unequivocal stand on behalf of the Respondent
is that respondent has not sought any re-instatement. Even if assuming
respondent had indirectly sought reinstatement in prayer (a), said
relief would be deemed to have been abandoned in view of the
statement of counsel for the respondent before the Trial Court.
21. In view of the above, I find no merit in the petition. The petition
is accordingly dismissed.
SANJEEV SACHDEVA, J
SEPTEMBER 27, 2019
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