TaxTMI 
TaxTMI 
2009 (9) TMI 1098
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....uired by the management. Termination of Employment: The above offer of employment is for continuous employment. However it may be terminated at any point of time by either party giving two month's notice in writing. The company has right to pay two month's salary in lieu of such notice to you. The company shall also have the right to adjust any leave due to you and/or recover from you such amounts towards notice pay for the shortfall in the period of notice. Dispute Any dispute between yourself and the company concerning with or relating to or arising out of this employment, shall be subject to the jurisdiction in Greater Mumbai only." 3. The said letter was issued from the Corporate Product Financing Division of the Defendant at Bandra (East), Mumbai. At the foot of the first page of the appointment letter, the address of the registered office of the Defendant at Ballard Estate, Mumbai was indicated. 4. On 12th February 2007, the Plaintiff was informed of the confirmation of his appointment with the Defendant with effect from 3rd January 2007. The updated Human Resource Manual & Procedure of the Defendant as on 13^th October 2008 h....
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.... the Plaintiff resigned from the services of the Defendant by sending an e-mail addressed to Mr. Jaspal Singh Ahluwalia. The said e-mail reads as under: "From: Gupta Vishal Sent: Monday, August 04, 2008 11:27 AM To: Ahluwalia Jaspal Singh CC: Kalra Anil; Ramesh V; Samant Biswajit D .; Singh Niraj Kumar Subject: Letter of Resignation Dear Sir, This is to formally inform that I will not be able to continue my service for L & T Finance Limited as Assistant Manager - TEG, for Delhi - NCR region. For personal reasons I would like to resign from the aforesaid post. I wish to be relieved by closing hours of 5/8/2008. I would like to thank this organization for giving me an opportunity to work together and imparting a good exposure in Sales field. I would request you to please relieve me of my official duties on 5/8/2008. I am willing to compensate the organisation as per policy in lieu of my notice period. Thanking you, Yours truly, Vishal Gupta Employee N .- 735310 Assistant Manager - TEG L&T Finance Ltd New Delhi." 6. In response ....
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....2,20,318/- and this was encashed by the Defendant on 21st August 2008. It is, however, contended by the Defendant that this amount has been placed in a sundry account. 10. The controversy in the present case is that the Plaintiff has not been issued a relieving letter by the Defendant as a result of which he is unable to take up employment with any other organization. According to the unable to join as he could not produce the relieving letter fron Defendant. 11. Faced with a difficult situation where the Defendant refused to issue a letter relieving him from its service, despite his clearing the dues, the Plaintiff wrote to Mr. Anil Kalra, Head (HR) of the Defendant on 2nd September 2008 an e-mail as follows: "From; Gupta Vishal Sent : 02 September 2008 11:27 To: Kalra Anil CC: [email protected] Sub: Re: Letter of resignation_Vishal Gupta Dear Sir, This is in reference to my mail sent to you on 25/8/2008 in which I intimated that the cheque of Rs.2,20,318/- in the name of L&T FINANCE LTD as my settlement amount is cleared from my bank account, but till date I have not been relieved from the organis....
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....he Plaintiff is entitled to a letter relieving him from the Defendant with effect from 4th August 2008; for a permanent mandatory injunction directing the Company to issue a relieving letter and other reliefs including refund of an amount of Rs. 32,890/ paid by the Plaintiff to the Defendant as salary in lieu of notice; reimburse his out of pocket expenses and compensation for the loss of job with Axis bank. He also sought damages for the loss of mental peace and for the mala fide actions of the Defendant. 15. The suit was listed for hearing on 5th November 2008. The Defendants 2 and 3 who are officers of Defendant No.1 were not found to be necessary parties and were struck off from the array of the parties. On 28th April 2009, the following order was passed by this Court: "The suit is ripe for framing of issues. However, there appear to be some element of settlement and it is deemed expedient to give the parties an opportunity for the same List on 15th May, 2009. If no settlement is arrived at by the parties, issues shall be framed. IA. No. 13399/2008(of the plaintiff u/O 39 Rule 1 and 2 CPC) The plaintiff seeks interim order directing the defendant t....
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....e parties taking adjournments for exploring the possibility of a settlement, it was reported finally that no settlement was possible. The Defendant was prepared to give a letter stating that the Plaintiff had ceased to be an employee of the Defendant on account of abandonment of services; that his name stood struck off from the rolls and that the certificate was being issued without prejudice to the rights and contentions of the Defendant in the present suit. This kind of a qualified relieving letter was of course not acceptable to the Plaintiff. The parties were therefore heard at length on the application for ad interim injunction as well as the question of territorial jurisdiction of this Court to and Ms. Indu Malhotra, learned Senior Advocate and Mr. Vikas M learned Advocate appeared for the Defendant. 18. As regards the preliminary issue of territorial jurisdiction, it is submitted on behalf of the Defendant that if the suit itself was not maintainable then the question of grant of an ad interim injunction would not arise. It is submitted by learned Senior Advocate for the Defendant that in view of the specific clause in the appointment letter that any dispute between the P....
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....judgment was given in the context of a commercial contract. Reliance has also been placed on certain decision of the High Courts in M/s. Snehalkumar Sarabhai v. M/s. Economic Transport Organization AIR 1975 Gujarat 72, M/s. Patnaik Industries Pvt. Ltd v. Kalinga Iron Works AIR 1984 Orissa 182 and Indian Rare injunction can be granted and this is one such instance. Reliance is placed on the judgment of Dorab Caswaji Warden v. Coomi Sorab Warden AIR 1990 SCC 867 and Sukerma Rani Kapoor v. Om Prakash Kapoor (2002) 2 AD (Del) 860. 21. As regards the submission regarding the territorial jurisdiction of this Court, there is an ouster clause in the contract in terms of which only the courts in Greater Mumbai would have jurisdiction. Learned counsel for the Defendant clarified that Bandra (E) is in Greater Mumbai and in any event given the claim made in the present suit, it would have to be filed on the original side of the Bombay High Court. According to them, therefore, the Court in Delhi has no jurisdiction. 22. The decisions of the Supreme Court in regard to "ouster clause" have invariably been in the context of commercial contracts. In A.B.C. Laminart Pvt. Ltd v. A.P. Agencies, ....
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....livered at a time when the decision in ABC Laminart Pvt. Ltd v. Agencies had not been rendered by the Supreme Court, none of the decisions deal with a contract of employment. 24. In the considered view of this Court the decisions on the "ouster clause" in the context of a commercial contract have to be held to be distinguishable in their application to a case of a contract of employment. In the employment contract, an employee would not be able to insist that the disputes, if any, are to be referred only to one court and not the other. The employee usually accepts the employment with all the attendant terms and conditions or not at all. In the present case, the letter of employment no doubt states that it is a transferable job. Still, the Plaintiff was to work primarily for the Delhi office of the Defendant. He, in fact, rendered services only in Delhi office. He submitted his resignation at Delhi. For an employee no longer in service to be asked to go to Mumbai for instituting and pursuing litigation would render the remedy expensive and inefficacious for such employee. It would work harshly against him. Moreover, in a situation like the present one where the prayer is essentia....
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....laintiff offered that in the event the defendant does not issue a relieving letter, he is prepared to join back the service, there was no positive response by the Defendant. During the course of arguments, the learned Senior Advocate for the Defendant repeatedly stated that since it had lost confidence in the Plaintiff it would not permit him to join duties. As far as the Defendant was concerned, the Plaintiff was no longer in their service and yet, they would not issue him a relieving letter simpliciter. To this Court, it appears that the point of refusal of the Defendant to take back the Plaintiff into service while at the same time refusing to grant him a relieving letter is not legally tenable. If the Plaintiff was indeed responsible for the 'non starter' cases, then consistent with such plea the Defendant ought to have proceeded to hold an inquiry against the Plaintiff while he was still in service. At no point in time while he was in service, did the Defendant initiate any disciplinary proceedings against the Plaintiff. 28. Even the reason of the Plaintiff having to first resolve the two non- starter cases appears to have been a ruse to somehow deny him the relievi....
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....oyment. 31. It was observed in Dorab Cawasji Warden v. Coomi Sorab Warden AIR 1990 SC 867 as under (AIR, p.873-74): "14. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are: (1) The plaintiff has a strong case for trail. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which norma....