Dear Octavious,
Sad it is to note that despite good piece of advice from a learned member , you have not restrained yourself in using loose language. You seem to be taking undue liberties on this site because of little longer association on this site because you have admitted that consciously you used sharp words. But kindly be aware that such attitude belittles oneself. You have cited an inapplicable decision of Prinka Puri case.
First of all I may refer in brief the details of the said Priyanka Puri case which is inapplicable in view of the self explanatory distinct facts not related to illegal termination. The relevant passages are extracted:
Delhi High Court
American Express Bank Ltd. vs Ms. Priya Puri on 24 May, 2006
Equivalent citations: (2006) IIILLJ 540 Del
1. This order shall dispose of Plaintiff's application under Order 39 Rules 1 and 2 of the Code of Civil Procedure and the defendant's application under Order 39 Rule 4 of Code of Civil Procedure to vacate the interim order dated 15th October, 2005 whereby by the defendant was restrained from using the information and data regarding the wealth of the customers of the plaintiff bank and customers' wealth management operations and wealth View program/operations of the plaintiff's bank.
2. Brief facts to comprehend the controversies between the parties are that the plaintiff filed the suit for permanent and mandatory injunction against the defendant seeking inter-alia a restrain against the defendant from using or disclosing any information and trade secrets relating to the business and operations of the plaintiff and to solicit or induce any of the customers of the plaintiff especially those who are part of the wealth management operation and/or wealth View programme and from breaching the confidentiality term as per letter of appointment/code of conduct including customers privacy principles/policies. The plaintiff also sought mandatory injunction against the defendant to deliver up all the confidential information, data and trade secrets in particular the customer list of wealth management operations and/or the wealth View programme/operations of the plaintiff available with the defendant or under her control.
..
48. What is inevitable to infer in the whole facts and circumstances is that the defendant performed extremely well and her desire to leave has been interpreted by the plaintiff as losing all the business which she was able to get for the plaintiff in previous years and therefore, the plea of defendant getting information about the plaintiff's customers illegally and unlawfully and alleging confidentiality about the same, was made as an afterthought to pressurize her either not to leave the Plaintiff or to teach her a lesson and curtail her future prospect for employment. The defendant can not be restrained from dealing with the persons who are banking with the plaintiff. Such an injunction will affect even those customers /persons who would like to bank with some other banks than plaintiff despite banking with the plaintiff. Some of the customers have given letters and communications which have been produced on record to show that it is their decision to be with any bank/institution for managing their investment.
49. In totality of circumstances the plaintiff bank has failed to make out a strong prima facie case in his favor. The inconvenience caused to the defendant shall be much more in case the injunction as prayed by the plaintiff is granted in his favor and therefore, the balance of convenience is in favor of defendant. Such an injunction as prayed by the plaintiff would rather lead to multiplicity of proceedings.
50. For the foregoing reasons the order dated 15th October, 2005 needs to be vacated and injunction application filed by the plaintiffs merits rejection and therefore, I.A. No. 8224/2005 filed by the plaintiffs is accordingly dismissed and IA No. 8893/2005 filed by the defendant is hereby allowed. The interim order dated 15th October, 2005 is vacated.
On the contrary, you may not agree with my view point, does not mean that I should follow your wrong notions. In order clear the mist caused by you because of the citation of the above decision the following decisions extract amply clarify the view points I projected and I will not enter into further wits in reply to your comments:
i) The declaration of termination of service was illegal was made and further damages were awarded:
Kolkata High Court (Appellete Side)
Beer Bikram Kumar Singh vs Datex-Ohmeda (India) Pvt. Ltd on 21 March, 2014
Once the declaration was made that, inter alia, the termination of service was wrongful by the judgment and decree dated 21st June, 2007, the stigma stood removed. Till before that time we accept that such stigma remained attached to the plaintiff giving rise to circumstances which prevented him from obtaining employment elsewhere. It follows that damages must be assessed as can be awarded to the plaintiff following the wrongful termination of his service on 20th February, 2003 till the date of the impugned judgment and decree being 21st June, 2007. In assessing such damages we can do the same from the pre-estimate by particulars given in paragraph 49 of the plaint but only those which have been duly proved and appear to us to be reasonable. Those particulars that are unacceptable to us is because they relate to reimbursibles and the plaintiff not having worked did not incur any reimbursible expenses.
ii) Punjab-Haryana High Court
M/S Dsm India Pvt. Ltd vs Mr.Maanav Yashroy & Ors on 9 January, 2014
12. In this manner, the trial Court appears to have examined the matter in right perspective and dismissed the application under Order 7 Rule 11 CPC filed by petitioner defendant-company, by virtue of impugned order, which, in substance, is as under (Paras 10 and 11):-
"10. It is suit for declaration with consequential relief of damages. As per plaint, only which is relevant stage, the plaintiff has challenged the termination order issued by defendant company and thereby has sought the relief of declaring the impugned termination order as illegal. Along with this, the plaintiff has prayed for directions to the defendant company to comply with the contractual obligations prior to terminating the plaintiff. Consequently, the plaintiff has sought the relief of exemplary damages to be awarded to the plaintiff. The plaintiff has not prayed for reinstatement in the defendant company. Hence the question of enforcing the specific contract between the parties does not arise. The plaintiff is not enforcing the personal contract by getting directions to the defendant company to follow due process of law prior to terminate the plaintiff. It is a mixed question of law and fact as to whether the plaintiff company followed the proper procedure before terminating the plaintiff from his job and has to be proved by cogent evidence at the stage of evidence. This is not the stage for this matter to be looked in. As far as the contention raised by the counsel for applicant regarding personal contracts and not to enforce the same etc. is related then it is pertinent to mention here that any Arvind Kumar Sharma 2014.01.17 12:29 I attest to the accuracy and integrity of this document Chandigarh contract/agreement whether personal commercial or specific does not give power to any body to bye pass the due procedure of law as well as contractual obligations between the parties. Meaning thereby, if defendant has any power to exercise then it has to be exercised by following due process of law and if question of not following due process has been raised by the plaintiff then he has the right to prove the same at the stage of evidence.
11. Moreover, the plaintiff has sought the relief of exemplary damages in consequences of relief of declaration. Hence, the contention of applicant that the relief of declaration simpliciter is not maintainable, is of no consequence.
13. Meaning thereby, the trial Court has recorded the cogent grounds in this regard.
iii) No injunction was admissible in case of termination of service in private employment:
Delhi High Court
Ge Capital Transportation ... vs Shri Tarun Bhargava on 20 March, 2012
5 Also, even assuming the termination is not as per the contract, at best the entitlement will be to claim damages which naturally flow out of the breach i.e. of the illegal termination of contract
11. Therefore, looking at the matter from the point of view of the contract of personal service not being enforceable under Section 14(1)(b) of the Specific Relief Act, 1963, the contract being determinable in nature and hence cannot be enforced as per Section 14(1)(c) of the Specific Relief Act, 1963 or that injunction could not be granted to prevent breach of a contract which cannot be specifically enforced, the suit was clearly barred and not maintainable.
iv) Similarly, in another case, the High Court granted consolidated damages against illegal termination :
Delhi High Court
St Johns School & Anr vs Asha Bhan on 19 July, 2012
The facts giving rise to filing of this appeal can be summarized as under:-
The respondent/plaintiff was employed as a Nursery/KG teacher with appellant No. 1 St. John‟s School, which is being run and managed by appellant No. 2 Delhi Mar Thoma Church Society. The services of the plaintiff/respondent were terminated with effect from 01.10.2001. The case of the plaintiff/respondent is that though her salary was Rs.7331/- per month, the appellants/defendants were wrongfully and illegally deducting a sum of Rs 2706/- per month from her salary and when she protested against such deduction, the defendants/appellants threatened to terminate her services. A sum of Rs 64,896/- was deducted from her salary in this manner, in about 24 months. This was also her case that on a strong protest by her in July-August, 2001, the defendants/appellants offered her a package of 05 month salary in case she submitted her resignation. They also threatened her to resign or else they would terminate her services, in case the offer was not accepted by her. According to the plaintiff/respondent, she refused to resign as a result of which she was not allowed to take classes with effect from 01.08.2001 and subsequently her services were terminated with effect from 01.10.2001. She accordingly claimed Rs 64,896/- being the amount wrongfully deducted from her services, Rs 21,993/- as arrears of salary, Rs 7,18,438/- on account of damages for illegal and wrongful termination of her services and Rs 50,000/- on account of damages for mental sufferings.
17. Thus, the plaintiff/respondent is entitled to recover the following amounts from the defendants/appellants:
(i) Rs.64,902/- being the amount wrongfully deducted from her salary
(ii) Rs.7,331/- towards arrears of salary for August, 2001.
(iii) Rs. 244/- towards salary of one day in September, 2001 and
(iv) Rs.3,50,000/- being the consolidated damages on account of wrongful termination of her services, thereby making a total of Rs.4,22,477/-.
The issues are decided accordingly.
I think the point is beyond doubt now:
Regards
Sushil
From India, New Delhi
221Sad it is to note that despite good piece of advice from a learned member , you have not restrained yourself in using loose language. You seem to be taking undue liberties on this site because of little longer association on this site because you have admitted that consciously you used sharp words. But kindly be aware that such attitude belittles oneself. You have cited an inapplicable decision of Prinka Puri case.
First of all I may refer in brief the details of the said Priyanka Puri case which is inapplicable in view of the self explanatory distinct facts not related to illegal termination. The relevant passages are extracted:
Delhi High Court
American Express Bank Ltd. vs Ms. Priya Puri on 24 May, 2006
Equivalent citations: (2006) IIILLJ 540 Del
1. This order shall dispose of Plaintiff's application under Order 39 Rules 1 and 2 of the Code of Civil Procedure and the defendant's application under Order 39 Rule 4 of Code of Civil Procedure to vacate the interim order dated 15th October, 2005 whereby by the defendant was restrained from using the information and data regarding the wealth of the customers of the plaintiff bank and customers' wealth management operations and wealth View program/operations of the plaintiff's bank.
2. Brief facts to comprehend the controversies between the parties are that the plaintiff filed the suit for permanent and mandatory injunction against the defendant seeking inter-alia a restrain against the defendant from using or disclosing any information and trade secrets relating to the business and operations of the plaintiff and to solicit or induce any of the customers of the plaintiff especially those who are part of the wealth management operation and/or wealth View programme and from breaching the confidentiality term as per letter of appointment/code of conduct including customers privacy principles/policies. The plaintiff also sought mandatory injunction against the defendant to deliver up all the confidential information, data and trade secrets in particular the customer list of wealth management operations and/or the wealth View programme/operations of the plaintiff available with the defendant or under her control.
..
48. What is inevitable to infer in the whole facts and circumstances is that the defendant performed extremely well and her desire to leave has been interpreted by the plaintiff as losing all the business which she was able to get for the plaintiff in previous years and therefore, the plea of defendant getting information about the plaintiff's customers illegally and unlawfully and alleging confidentiality about the same, was made as an afterthought to pressurize her either not to leave the Plaintiff or to teach her a lesson and curtail her future prospect for employment. The defendant can not be restrained from dealing with the persons who are banking with the plaintiff. Such an injunction will affect even those customers /persons who would like to bank with some other banks than plaintiff despite banking with the plaintiff. Some of the customers have given letters and communications which have been produced on record to show that it is their decision to be with any bank/institution for managing their investment.
49. In totality of circumstances the plaintiff bank has failed to make out a strong prima facie case in his favor. The inconvenience caused to the defendant shall be much more in case the injunction as prayed by the plaintiff is granted in his favor and therefore, the balance of convenience is in favor of defendant. Such an injunction as prayed by the plaintiff would rather lead to multiplicity of proceedings.
50. For the foregoing reasons the order dated 15th October, 2005 needs to be vacated and injunction application filed by the plaintiffs merits rejection and therefore, I.A. No. 8224/2005 filed by the plaintiffs is accordingly dismissed and IA No. 8893/2005 filed by the defendant is hereby allowed. The interim order dated 15th October, 2005 is vacated.
On the contrary, you may not agree with my view point, does not mean that I should follow your wrong notions. In order clear the mist caused by you because of the citation of the above decision the following decisions extract amply clarify the view points I projected and I will not enter into further wits in reply to your comments:
i) The declaration of termination of service was illegal was made and further damages were awarded:
Kolkata High Court (Appellete Side)
Beer Bikram Kumar Singh vs Datex-Ohmeda (India) Pvt. Ltd on 21 March, 2014
Once the declaration was made that, inter alia, the termination of service was wrongful by the judgment and decree dated 21st June, 2007, the stigma stood removed. Till before that time we accept that such stigma remained attached to the plaintiff giving rise to circumstances which prevented him from obtaining employment elsewhere. It follows that damages must be assessed as can be awarded to the plaintiff following the wrongful termination of his service on 20th February, 2003 till the date of the impugned judgment and decree being 21st June, 2007. In assessing such damages we can do the same from the pre-estimate by particulars given in paragraph 49 of the plaint but only those which have been duly proved and appear to us to be reasonable. Those particulars that are unacceptable to us is because they relate to reimbursibles and the plaintiff not having worked did not incur any reimbursible expenses.
ii) Punjab-Haryana High Court
M/S Dsm India Pvt. Ltd vs Mr.Maanav Yashroy & Ors on 9 January, 2014
12. In this manner, the trial Court appears to have examined the matter in right perspective and dismissed the application under Order 7 Rule 11 CPC filed by petitioner defendant-company, by virtue of impugned order, which, in substance, is as under (Paras 10 and 11):-
"10. It is suit for declaration with consequential relief of damages. As per plaint, only which is relevant stage, the plaintiff has challenged the termination order issued by defendant company and thereby has sought the relief of declaring the impugned termination order as illegal. Along with this, the plaintiff has prayed for directions to the defendant company to comply with the contractual obligations prior to terminating the plaintiff. Consequently, the plaintiff has sought the relief of exemplary damages to be awarded to the plaintiff. The plaintiff has not prayed for reinstatement in the defendant company. Hence the question of enforcing the specific contract between the parties does not arise. The plaintiff is not enforcing the personal contract by getting directions to the defendant company to follow due process of law prior to terminate the plaintiff. It is a mixed question of law and fact as to whether the plaintiff company followed the proper procedure before terminating the plaintiff from his job and has to be proved by cogent evidence at the stage of evidence. This is not the stage for this matter to be looked in. As far as the contention raised by the counsel for applicant regarding personal contracts and not to enforce the same etc. is related then it is pertinent to mention here that any Arvind Kumar Sharma 2014.01.17 12:29 I attest to the accuracy and integrity of this document Chandigarh contract/agreement whether personal commercial or specific does not give power to any body to bye pass the due procedure of law as well as contractual obligations between the parties. Meaning thereby, if defendant has any power to exercise then it has to be exercised by following due process of law and if question of not following due process has been raised by the plaintiff then he has the right to prove the same at the stage of evidence.
11. Moreover, the plaintiff has sought the relief of exemplary damages in consequences of relief of declaration. Hence, the contention of applicant that the relief of declaration simpliciter is not maintainable, is of no consequence.
13. Meaning thereby, the trial Court has recorded the cogent grounds in this regard.
iii) No injunction was admissible in case of termination of service in private employment:
Delhi High Court
Ge Capital Transportation ... vs Shri Tarun Bhargava on 20 March, 2012
5 Also, even assuming the termination is not as per the contract, at best the entitlement will be to claim damages which naturally flow out of the breach i.e. of the illegal termination of contract
11. Therefore, looking at the matter from the point of view of the contract of personal service not being enforceable under Section 14(1)(b) of the Specific Relief Act, 1963, the contract being determinable in nature and hence cannot be enforced as per Section 14(1)(c) of the Specific Relief Act, 1963 or that injunction could not be granted to prevent breach of a contract which cannot be specifically enforced, the suit was clearly barred and not maintainable.
iv) Similarly, in another case, the High Court granted consolidated damages against illegal termination :
Delhi High Court
St Johns School & Anr vs Asha Bhan on 19 July, 2012
The facts giving rise to filing of this appeal can be summarized as under:-
The respondent/plaintiff was employed as a Nursery/KG teacher with appellant No. 1 St. John‟s School, which is being run and managed by appellant No. 2 Delhi Mar Thoma Church Society. The services of the plaintiff/respondent were terminated with effect from 01.10.2001. The case of the plaintiff/respondent is that though her salary was Rs.7331/- per month, the appellants/defendants were wrongfully and illegally deducting a sum of Rs 2706/- per month from her salary and when she protested against such deduction, the defendants/appellants threatened to terminate her services. A sum of Rs 64,896/- was deducted from her salary in this manner, in about 24 months. This was also her case that on a strong protest by her in July-August, 2001, the defendants/appellants offered her a package of 05 month salary in case she submitted her resignation. They also threatened her to resign or else they would terminate her services, in case the offer was not accepted by her. According to the plaintiff/respondent, she refused to resign as a result of which she was not allowed to take classes with effect from 01.08.2001 and subsequently her services were terminated with effect from 01.10.2001. She accordingly claimed Rs 64,896/- being the amount wrongfully deducted from her services, Rs 21,993/- as arrears of salary, Rs 7,18,438/- on account of damages for illegal and wrongful termination of her services and Rs 50,000/- on account of damages for mental sufferings.
17. Thus, the plaintiff/respondent is entitled to recover the following amounts from the defendants/appellants:
(i) Rs.64,902/- being the amount wrongfully deducted from her salary
(ii) Rs.7,331/- towards arrears of salary for August, 2001.
(iii) Rs. 244/- towards salary of one day in September, 2001 and
(iv) Rs.3,50,000/- being the consolidated damages on account of wrongful termination of her services, thereby making a total of Rs.4,22,477/-.
The issues are decided accordingly.
I think the point is beyond doubt now:
Regards
Sushil
From India, New Delhi
Dear Sunil
Please read point no iii, in your above post where you have sited no injunction is possible in case of termination in private employment, if you understand this then why did you advise a civil case????
The only way of getting reinstated back to her job is through Writ Petition while seeking damages, which is permissible under Article 21 without impairing the right of the petitioner to claim damages under ordinary law through Civil Courts.
Even if she doesnt want to go back to Job, with a Writ filed in court she can always ensure that the company comes for outside court settlement, thus ensuring a golden handshake.
Writ petition would be much faster than Civil Court cases, and hence Writ Case is the best option.
Coming to my case, which I have stated, the American Bank had asked for specific performance as per the terms and condition of employment contract entered between American Express Bank and the Priyanka Puri, as per which damages where levied upon Priyanka Puri, but the same was not entertained and only return of confidential documents where advised by the court.
How you interpret Precedents clearly indicates your lack understanding of judgements in favor of the point you contest.
Regards
Octavious
From India, Mumbai
Please read point no iii, in your above post where you have sited no injunction is possible in case of termination in private employment, if you understand this then why did you advise a civil case????
The only way of getting reinstated back to her job is through Writ Petition while seeking damages, which is permissible under Article 21 without impairing the right of the petitioner to claim damages under ordinary law through Civil Courts.
Even if she doesnt want to go back to Job, with a Writ filed in court she can always ensure that the company comes for outside court settlement, thus ensuring a golden handshake.
Writ petition would be much faster than Civil Court cases, and hence Writ Case is the best option.
Coming to my case, which I have stated, the American Bank had asked for specific performance as per the terms and condition of employment contract entered between American Express Bank and the Priyanka Puri, as per which damages where levied upon Priyanka Puri, but the same was not entertained and only return of confidential documents where advised by the court.
How you interpret Precedents clearly indicates your lack understanding of judgements in favor of the point you contest.
Regards
Octavious
From India, Mumbai
Dear Octavious,
One should not expose his miadventures to such an extent that people start having pity about one, despite in whichever age he may have entered. Pl read my earlier posts where I have never said that injunction is permissible in private employment. I have emphasized that after declaration that termination was wrongful on the ground of resignation by coecion and consequent damages are admissible in the case. Further, writ petition will not lie against private company on the ground of alleged violation of article 21 since it is settled law that violations under article 21 are considered against the State because of the wotds " due process of law" used in it as per ADM Jabalpur case.
Further your approach that by merely filing a writ by lady, company will come out for outside court settlement, shows how ignorant you are about legal practice. If this be so every private employee will file a writ petition and try to obtain settlement with private company outside court. Do you think lawyer of company will not contest hotly about its maintainability. But generally the concepts of writ are known to every lawyer and High Court so the stage of issuing notice to private company will not even arise what to talk of entering into settlement. You could not cite a single decision in which your approach has any strength. Pl donot go into splits on this petty issue. So pl give a relook at your approach.
Regards
Sushil
From India, New Delhi
One should not expose his miadventures to such an extent that people start having pity about one, despite in whichever age he may have entered. Pl read my earlier posts where I have never said that injunction is permissible in private employment. I have emphasized that after declaration that termination was wrongful on the ground of resignation by coecion and consequent damages are admissible in the case. Further, writ petition will not lie against private company on the ground of alleged violation of article 21 since it is settled law that violations under article 21 are considered against the State because of the wotds " due process of law" used in it as per ADM Jabalpur case.
Further your approach that by merely filing a writ by lady, company will come out for outside court settlement, shows how ignorant you are about legal practice. If this be so every private employee will file a writ petition and try to obtain settlement with private company outside court. Do you think lawyer of company will not contest hotly about its maintainability. But generally the concepts of writ are known to every lawyer and High Court so the stage of issuing notice to private company will not even arise what to talk of entering into settlement. You could not cite a single decision in which your approach has any strength. Pl donot go into splits on this petty issue. So pl give a relook at your approach.
Regards
Sushil
From India, New Delhi
Sushil/Octavious,
While some other members may be able to shed some more light on this confusion about the applicable law. I would request both members to kindly avoid calling each other names or showing the other down.
You are both right in sticking to what you believe is the correct approach and it is perhaps an opportunity to learn something.
While I do not want to curtail the fervor and enthusiasm with which you two are debating - I would request both to maintain respect for the platform and each other.
Regards,
CHR
From India, Gurgaon
While some other members may be able to shed some more light on this confusion about the applicable law. I would request both members to kindly avoid calling each other names or showing the other down.
You are both right in sticking to what you believe is the correct approach and it is perhaps an opportunity to learn something.
While I do not want to curtail the fervor and enthusiasm with which you two are debating - I would request both to maintain respect for the platform and each other.
Regards,
CHR
From India, Gurgaon
Dear Miss,
You have only and only 2 options.
1. Be quite as you resigned.
2. Go for legal actions BUT only if you have 2 proofs.
a. Birth certificate showing birth of the new born which also prove that you are pregnant when you resign.
b. Any proof which show that the resign were forcly taken. In this case you may claim for your mental disturbance occured during forcing
you to resign.
and If you does not have such proof my advice is to leave. as you already know cost of justice which is to heavy for us to pay.
Regards
Ziad Hussain
From Pakistan, Islamabad
You have only and only 2 options.
1. Be quite as you resigned.
2. Go for legal actions BUT only if you have 2 proofs.
a. Birth certificate showing birth of the new born which also prove that you are pregnant when you resign.
b. Any proof which show that the resign were forcly taken. In this case you may claim for your mental disturbance occured during forcing
you to resign.
and If you does not have such proof my advice is to leave. as you already know cost of justice which is to heavy for us to pay.
Regards
Ziad Hussain
From Pakistan, Islamabad
You can still approach the labour department. It is the employer who have to prove that they have not forced you to resign.
From India, Delhi
From India, Delhi
Dear Manushi48,
I agree with number of members that nothing can be done.
Thinking from your point of view.
a) You should get maternity paid leave of 90 days, as well as get 3 months compensation from company which is in process of closing down. This is the real issue.
My point of view.
a) Company has honoured by paying more than required compensation. How? The company is to give 3 months salary in lieu of termination. Here it is resignation & not termination.
b) It is salary not CTC(you have got CTC, which is normally higher than salary).
c) Does your resignation, states the notice period, and effective date. I hope it is not with immediate effect. Are you attending duties. These are some questions not replied in your post.
d) Pregnancy is personal, and has no legal bearing on company.
Manushiji, forget about this incident. Focus on your pregnancy and enjoy Motherhood.
Best wishes to you,
Vir Matta
.
From India, Jhansi
I agree with number of members that nothing can be done.
Thinking from your point of view.
a) You should get maternity paid leave of 90 days, as well as get 3 months compensation from company which is in process of closing down. This is the real issue.
My point of view.
a) Company has honoured by paying more than required compensation. How? The company is to give 3 months salary in lieu of termination. Here it is resignation & not termination.
b) It is salary not CTC(you have got CTC, which is normally higher than salary).
c) Does your resignation, states the notice period, and effective date. I hope it is not with immediate effect. Are you attending duties. These are some questions not replied in your post.
d) Pregnancy is personal, and has no legal bearing on company.
Manushiji, forget about this incident. Focus on your pregnancy and enjoy Motherhood.
Best wishes to you,
Vir Matta
.
From India, Jhansi
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