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2008 DIGILAW 955 (MAD)

Power Centre Pvt. , Ltd. , v. R. Prabhakar

2008-03-17

A.C.ARUMUGAPERUMAL ADITYAN

body2008
JUDGMENT :- This revision has been directed against the order in E.A.4056 of 2007, a petition filed under Section 47 of CPC, in E.P.No.1951 of 2006 in O.S.No.10596 of 1987 on the file of the IX Assistant Judge, City Ciiv Court, Chennai. The plaintiff has filed O.S.No.10596 of 1987 for arrears of salary amounting to Rs.82,700/- with 12% pa future interest and also for future salary at Rs.2,000/- pm along with allowances with interest at 12% pa from 24. 1987 till the date of relieving or reinstatement. The said suit was decreed exparte on 26.06.1992. To execute the decree the plaintiff, employee under the defendant, had filed E.P.No.1951 of 2006 in O.S.No.10596 of 1987. Only in the said EP, the revision petitioner had filed E.A.No.4056 of 2007 under Section 47 CPC. The Executing Court had dismissed the EA.NO.4056 of 2007 on the ground that the contention of the petitioner that the civil court has no jurisdiction cannot be sustainable. 2. The learned counsel for the revision petitioner would contend that as per Section 41 and Sub-clause 3 to Section 2 of the Tamil Nadu Shops and Establishments Act, 1947, the suit itself is not maintainable. As per section 41 of the Tamil Nadu Shops and Establishments Act, 1947, only a months notice is required to be sent by the employer before any employee is placed under suspension and even the said notice is not necessary if the employee is suspended on the charge of misconduct supported by the evidence. Relying Section 41(2) of the said Act the learned counsel would further contend that the employee has not preferred any appeal against the order of suspension of the employer and hence, the suit is not maintainable. Relying Section 41(2) of the said Act the learned counsel would further contend that the employee has not preferred any appeal against the order of suspension of the employer and hence, the suit is not maintainable. As per section 2 sub-clause 3 of the said Act what is "commercial establishment" has been defined under the said Act as follows:- "Commercial establishment” means an establishment which is not a shop but which carries on the business of advertising, commission, forwarding or commercial agency, or which is a clerical department of a factory or industrial undertaking or which is an insurance company, joint stock company, bank, brokers office or exchange and includes such other establishment as the State Government may by notification declare to be a commercial establishment for the purpose of this Act" The learned counsel for the respondent herein would contend that the suit for recovery of money on the ground of arrears of salary is perfectly maintainable before the Civil Court. A perusal of the plaint in O.S.No.10596 of 1987 will go to show that the plaintiff has claimed his arrears of salary amounting to Rs.82,700/- from July 1984. According to the plaintiff, he has resigned from the job as per Ex.A.3 as on 24.07.1984 itself. According to the learned counsel for the respondent, once the respondent herein /employee had resigned his job on 27. 1984 itself then there is no question of suspension or termination of service arose for consideration. A reading of Ex.A.3 will go to show that even though the employee said to have resigned his post on 24.07.1984 itself, at the request of the employer he had continued his service till 03.09.1984. 3. The learned counsel appearing for the revision petitioner would submit that Ex.A.3 is dated 11. 1984 and at the worst the employee cannot claim any arrears of salary after 011. 1984, but in the paint under the relief No.3, the plaintiff/employee had asked for future salary at the rate of Rs.2,000/- pm with future interest at 12% pm from 24. 1987 till the date of relieving or reinstatement. 4. Relying on a ratio in 1956 MLJ 556 (Percy Edward Warne Vs. 1984, but in the paint under the relief No.3, the plaintiff/employee had asked for future salary at the rate of Rs.2,000/- pm with future interest at 12% pm from 24. 1987 till the date of relieving or reinstatement. 4. Relying on a ratio in 1956 MLJ 556 (Percy Edward Warne Vs. The Ouchterlony Valley Estate (1938) Ltd.,), the learned counsel for the revision petitioner would contend that the respondent / employee / plaintiff in O.S.No.10596 of 1987 is not entitled to claim any reinstatement and the relief No.3 to the plaint claiming future salary from 24. 1987 till the date of relieving or reinstatement is not maintainable under law and if at all the plaintiff / respondent is entitled to any relief, he can only ask for damages after placing relevant materials to show that he has unnecessarily been denied his salary. The relevant observation in the ratio relied on by the learned counsel appearing for the revision petitioner for the purpose of deciding this revision runs as follows:- "Where a contract of service of a fixed period itself provides a period of notice on either side for determining the service, there is no necessity for the Court to go into the question of reasonable notice in cases of termination of service. Though in such cases a termination of service might amount to wrongful dismissal if the same is done without giving notice as stipulated in the contract, the measure of damages will be only on the basis of the notice period and not the entire unexpired period of the contract of service. Following the ratio decidedness in Addis vs. Gramophone Company, ltd., L.R. (1909) AC 488; Rubel Bronze and Metal Company and Vas., In re., LR (1918) 1 KB 315) and Connaught Properties Ltd Vs. Regional Properties Ltd., LR (1942) 2 KB 314), it has been further been held by the Division Bench of this Court in the above said case as follows:- The measure of damages in such cases of wrongful dismissal will only be the amount of wages for the period of notice, which might be regarded as liquidated damages fixed by the parties, Damages cannot be awarded on the basis of the salary of the entire unexpired period under the service contract." Admittedly the plaintiff is an employee under the defendant only under the contract of service. So, if the plaintiff has been wrongfully terminated from service by the defendant/employer then the remedy open to the plaintiff is not to ask for the future salary at 12% interest from 24. 1987 till the date of relieving or reinstatement, but can only claim the wages for the period of notice as liquidated damages. Further it is not the case of the plaintiff that he was suspended or terminated from service on 24. 1987 or he had resigned the job on 24.07.1984. It is admitted case of the plaintiff that he had resigned the post on 24. 1987 as per Ex.A.3, but he had continued till 9. 1984 as per the request of the employer. 5. The other ratios in 2002 (3) LW 644 (Vummidi Bangaru Chetty (P) Ltd.,Vs. M/s.Spencer & Co. Ltd.,) and AIR 1991 SC 1094 (M/s.East India Corporation Ltd., Vs. Shree Meenakshi Mills Ltd.,) are not applicable to the present facts of the case because the suit filed for relief Nos. 1 an 2 to the plaint for arrears of salary from July 1984 till the plaintiff resigned from his post is not barred under Section 9 of CPC. 6. Relying on AIR 1981 SC 122 (Smt.J.Tiwari Vs. Smt.Jawala Devi Vidya Mandir and others), the learned counsel for the revision petitioner is also on the point that the plaintiff is entitled to claim only damages and not future salary from the date of his resignation till the date of relieving or reinstatement. The Executing Court has rejected the petition filed under Section 47 of CPC viz. E.A.No.4056 of 2007 only on the basis of the contention of the petitioner that the Civil Court has no jurisdiction to try the suit. Even though the trial Court had no opportunity to decide whether the future salary claimed under relief No.3 to the plaint is valid or not, it is not an embargo for the petitioner in EA.No.4056 of 2007 to raise the point that the employee is entitled to claim only damages and future salary from the date of resignation till the date of relieving or reinstatement before the Executing Court challenging the decree. 7. Under such circumstance, the revision is allowed in part and the decree holder in E.P.No.1951 of 2006 in O.S.No.10596 of 1987 is not entitled to proceed with the EP in respect of relief No.3 to the plaint. 7. Under such circumstance, the revision is allowed in part and the decree holder in E.P.No.1951 of 2006 in O.S.No.10596 of 1987 is not entitled to proceed with the EP in respect of relief No.3 to the plaint. In other respects the Revision is dismissed. No costs. Connected Miscellaneous Petition is closed.