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2018 DIGILAW 891 (CAL)

Union of India v. Ashoke Kumar Nath

2018-12-06

ARINDAM MUKHERJEE, BISWANATH SOMADDER

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JUDGMENT : Arindam Mukherjee, J. The appeal is at the instance of the defendants challenging a decree passed in a suit, inter alia, claiming damages. The suit was filed by the respondent/plaintiff. 2. The brief facts leading to filing of the above suit and the decree passed therein are as follows:- (i) Pursuant to a tender notice dated 15th July, 2004 for engagement of Professional Letter Writer (in short 'PLW') at Kolkata GPO for a period of three years with effect from 1st September, 2004, the respondent/plaintiff emerged successful and was allotted the south verandah of the Kolkata GPO to operate as a PLW. The rent to be paid in advance for one year for such work by the respondent/plaintiff was Rs.12,340/-. The respondent/plaintiff was to operate from the south verandah of Kolkata GPO as PLW with four others. (ii) The postal authorities, while the respondent/plaintiff was operating as PLW received a complaint from one Anil Sharma alleging misappropriation of Rs. 1300/- by the respondent/plaintiff from an insured letter which the said Anil Sharma had entrusted the respondent/plaintiff to write and sent. (iii) After receiving the complaint the postal authorities terminated the permission of the respondent/plaintiff to operate as PLW on 4th March, 2005, inter alia, invoking the provisions of Clause D of the offer letter bearing no. G -1/P.L.W/2004-05, dated 11th August, 2004. (iv) Several round of litigations at the instance of the respondent/plaintiff followed subsequent to the termination. (v) Initially by an order dated 6th July, 2007 passed in W.P. No. 6082 (W) of 2005 filed by the respondent/plaintiff challenging the letter of termination, the said order of termination was set aside. The director, Kolkata GPO was directed to consider the matter afresh upon giving the respondent/plaintiff an opportunity of being heard upon making available to him the copies of the complaint which formed the basis of the proceeding against him. The director, Kolkata GPO was also directed to give his decision within a period of eight weeks from the date of the communication of the order. It was further directed that till the matter was finally resolved, the petitioner be restrained from operating as PLW. (vi) The decision of the director, Kolkata GPO contained in a memo dated 11th September, 2007 again terminating the contract of the respondent/plaintiff was served on the respondent/plaintiff on 13th September, 2007. It was further directed that till the matter was finally resolved, the petitioner be restrained from operating as PLW. (vi) The decision of the director, Kolkata GPO contained in a memo dated 11th September, 2007 again terminating the contract of the respondent/plaintiff was served on the respondent/plaintiff on 13th September, 2007. Upon receiving such order the respondent/plaintiff again challenged the same by filing a writ petition being W.P. No. 22355 (W) of 2007 before this Hon'ble Court. (vii) The order dated 11th September, 2007 was set aside by an order dated 29th August, 2008 passed by this Court, inter alia, directing the director of Kolkata GPO to consider the matter in dispute afresh by passing a speaking order after giving a reasonable opportunity of hearing to the petitioner. The order, however, retained the direction against the appellant/plaintiff from not operating as PLW. (viii) The director Kolkata GPO after considering the matter again passed an order on 24th/ 27th October, 2008. This order was again challenged by the respondent/plaintiff by filing a writ petition being W.P. No. 28446 (W) of 2008 before this Hon'ble Court. The said writ petition was dismissed by judgment and order dated 2nd September, 2009. (ix) Challenging the said order the respondent/plaintiff filed an appeal therefrom which was allowed by an order dated 24th/27th December, 2010 by setting aside the order passed by the director, Kolkata GPO on 27th October, 2008. (x) Records reveal that no further steps against the respondent/plaintiff was taken by the appellants/defendants. (xi) The respondent/plaintiff thereafter served the appellants/defendants with a demand for justice and the same on being left unaddressed filed a writ petition being W.P. No. 6363 (W) of 2011, inter alia, claiming compensation for being prevented from operating as PLW. This writ petition was dismissed by an order dated 25th April, 2012. The dismissal order was challenged by the respondent/plaintiff by filing an appeal. The appeal so filed was dismissed by an order dated 1st August, 2013. (xii) The Special Leave Petition being SLP No. 37284 of 2013 filed by the respondent/plaintiff challenging the order made in the appeal which was also dismissed by a judgment and order dated 3rd March, 2014 by the Hon'ble Supreme Court. (xiii) Thereafter, the plaintiff filed the instant suit, after issuing a notice under Section 80 of the Code of Civil Procedure, 1908. The suit was decreed ex parte on 16th February, 2015. (xiii) Thereafter, the plaintiff filed the instant suit, after issuing a notice under Section 80 of the Code of Civil Procedure, 1908. The suit was decreed ex parte on 16th February, 2015. (xiv) The said decree was put into execution by the respondent/plaintiff. On receiving a copy of the execution application, the appellants/defendants contended the decree to be an ex parte decree and challenged the same. The said decree was ultimately set aside by granting the appellants/defendants to contest the suit. The respondent/plaintiff was allowed a sum of Rs. 5,00,000/- as damages together with interest thereon at the rate of six per cent with simple interest from 1st October, 2007 till realization by a decree dated 16th February,2015. (xv) The suit was subsequently heard in the presence of the appellants/defendants which culminated into a decree dated 23rd November, 2017 being under challenge in the instant appeal. 3. Before us, the appellants have urged two grounds; i) the claim of the respondent/plaintiff is barred by limitation ii) the respondent/plaintiff is not entitled to any damages; 4. After considering the judgment and decree dated 23rd November, 2017 and hearing the parties at length, we find that the Hon'ble Single Judge was right in rejecting the plea of limitation urged before the Hon'ble Single Judge and now sought to be urged before us. From the facts of the case it is apparent that the respondent/plaintiff right from the issuance of the termination letter did not accept the same and proceeded bona fide to challenge the termination which ultimately succeeded when the order dated 24th December, 2010 was passed. The cause of action in favour of the respondent/appellant to claim damages arose on 1st September, 2007 when the three year period expired but he became entitled to claim the same only after passing of the said order dated 24th December, 2010 invalidating the termination. Had the respondent/plaintiff accepted the termination and remained silent then his cause of action to claim damages would have arisen on 4th March, 2005. Immediately after passing of the said judgment and order dated 24th December, 2010 the respondent/plaintiff issued a demand for justice claiming compensation and the same on being left unaltered filed a writ petition seeking compensation for being unable to operate as PLW. The said writ petition as stated hereinabove was dismissed and the dismissal order was confirmed right up to the Hon'ble Supreme Court. The said writ petition as stated hereinabove was dismissed and the dismissal order was confirmed right up to the Hon'ble Supreme Court. The facts also reveal that, after passing of the order of the Hon'ble Supreme Court on 3rd March, 2014, the respondent/plaintiff issued a notice under Section 80 of the Code of Civil Procedure and filed the above suit. The respondent/plaintiff is entitled to the benefit of the notice period. 5. Considering this factual situation, we also subscribe to the view taken by the Hon'ble Single Judge that the respondent/plaintiff is entitled to the benefit of Section 14 of the Limitation Act, 1963 for the period between initiation of the writ petition being W.P. No. 6363 (W) of 2011 and dismissal of the Special Leave Petition on 3rd March, 2014. Since the writ Court did not possess the jurisdiction to grant the relief for compensation, the suit having been filed shortly thereafter cannot be said to be barred by limitation for the simple reason that the respondent/plaintiff could claim damages only after 24th December, 2010. The respondent/plaintiff also bona fide proceeded to assert his right immediately thereafter by filing the writ petition in a Court which did not have the jurisdiction to grant the reliefs claimed therein. Even the judgment of the Hon'ble Supreme Court reported in 1996 (6) SCC 100 and relied upon by the respondent/plaintiff supports such view. The respondent/plaintiff is required to be given the benefit for the period from the filing of the writ petition being W.P. No. 6363 (W) of 2011 till dismissal of the Special Leave Petition on 3rd March, 2014.That apart, and in any event, the respondent/plaintiff cannot be remediless after having suffered damages on his contract being terminated which has been held invalid and the appellant/defendant having not proceeded against him. 6. On the issue of damages and its quantum, we find that the relationship between the parties is contractual in nature. The contract of the respondent/plaintiff was terminated on 4th March, 2005. The respondent/plaintiff, therefore, operated as PLW from 1st September, 2004 till 4th March, 2005. Thereafter, he could not operate due to his termination and for orders being passed by this Court when the respondent/plaintiff challenged the said termination. The respondent/plaintiff succeeded in getting the order of termination set aside in every round of litigation the last of which is the order dated 24th December, 2010. Thereafter, he could not operate due to his termination and for orders being passed by this Court when the respondent/plaintiff challenged the said termination. The respondent/plaintiff succeeded in getting the order of termination set aside in every round of litigation the last of which is the order dated 24th December, 2010. By the time the said order dated 24th December, 2010 was passed, the tenure of the contract had expired. The respondent/plaintiff alleged that after expiry of the initial period the respondent/plaintiff was not allowed to participate and/or his offer was considered for the subsequent period when PLWs were engaged by the appellants/defendants. But such alleged action or the period after 30th August, 2007 cannot be taken into consideration for damages as there was no certainty that the respondent/plaintiff would have been engaged as PLW even if the termination had not taken place. The appellant/defendant after the order dated 24th December, 2010 was passed did not proceed any further as against the respondent/plaintiff and accepted the order. Therefore, the termination issue came to an end on the passing of the order dated 24th December, 2010. In such a situation, when the termination was ultimately set aside and the appellant/defendant did not take any further steps, it has to be held that the respondent/plaintiff could not operate as PLW during the interregnum due to the termination and orders passed in the pending litigation the results of which all along went in favour of the respondent/plaintiff. The respondent/plaintiff no doubt has, therefore, been prevented from earning by operating as PLW. The respondent/plaintiff also had to approach the Court for such acts of the appellants/defendants. The respondent/plaintiff, therefore, is entitled to be compensated for the loss of earning during the period between 5th March, 2005 to 31st August, 2007. 7. We are not inclined to award any damages for the period after 31st August, 2007 as for the subsequent period even under normal circumstances the offer of the respondent/plaintiff to operate as PLW may not have been accepted by the appellants/defendants for any other reason. 8. So far as the quantum of damages is concerned, we find that there is virtually no evidence in support of the claim made by the respondent/plaintiff in his suit. Though the respondent/plaintiff has quantified his damages at Rs. 16,50,000/-, but no evidence in support of such claim has been produced. 8. So far as the quantum of damages is concerned, we find that there is virtually no evidence in support of the claim made by the respondent/plaintiff in his suit. Though the respondent/plaintiff has quantified his damages at Rs. 16,50,000/-, but no evidence in support of such claim has been produced. There is no evidence to substantiate that the respondent/plaintiff earned a sum of Rs. 25,000/- per month as claimed. The respondent/plaintiff has not disclosed his income tax return for the relevant period to substantiate his income. He has also not produced any document to show that during the period between 1st September, 2004 and 4th March, 2005 when he operated as the PLW he had earned Rs.25,000/- per month. The respondent/plaintiff produced a purported account book containing certain entries but the same was not tendered. It was kept marked for identification as the author of the same according to the respondent/plaintiff was his staff. He has failed to examine his so called staff Anil in whose hand writing the entries in the said purported account book was made according to the respondent/plaintiff. We cannot look into such document. 9. The respondent/plaintiff in answer to question nos. 91 to 93 he has stated that his income from the work of PLW in GPO at Kolkata in the year 2004 was near about Rs. 1000/- per month. Subsequently, it was reduced to Rs.500-600/- in 2005. Solely on that basis, no computation of damages can be made. We find that the Hon'ble Single Judge awarded Rs. 5,00,000/- as compensation according to the amount which had been awarded in the ex parte decree which stood set aside. We find that the Hon'ble Single Judge has given no independent finding as to how he arrived at the said amount of compensation. We agree to the proposition that there is always an element of guess work while computing the damages as it is not only difficult to compute the actual loss but also impossible to compute the actual loss for the purpose of awarding damage in many cases. 10. If the said figure of Rs. 25,000/- has to be held correct or if we accept the figure of Rs.1000 per day as the income per day then the respondent/plaintiff would have earned a sum in excess of Rs. 1,50,000/- during the period from 1st September, 2004 till 4th March, 2005. 10. If the said figure of Rs. 25,000/- has to be held correct or if we accept the figure of Rs.1000 per day as the income per day then the respondent/plaintiff would have earned a sum in excess of Rs. 1,50,000/- during the period from 1st September, 2004 till 4th March, 2005. He ought to have filed his return for the Assessment Year 2005-06 expiring on 31st March, 2005. We find no such document nor has the respondent/plaintiff claimed to have filed his return for such period. If we go by his oral evidence then, for the period of 122 days (from 01/09/2004 to 31/12/2004) and for a period of about 63 days in 2005 he would have earned Rs. 1000 122 days+Rs.500 63 days. Then, his income would have been Rs. 1,53,000 and he was also required to file his return for the Assessment Year 2005-06 expiring on 31st March, 2005. As stated above no such return is on record. 11. We also do not find on record the scale of fees fixed by the appellants/defendants as per the contract on the basis whereof the respondent/plaintiff charged while he operated as PLW. In absence of such document and of any record at least to show that the respondent/plaintiff has catered so much number of persons in the capacity of PLW per day during the period for which he earned, we cannot hold that the oral evidence of the respondent/plaintiff is reliable. 12. We are, therefore, of the view that only the oral evidence of the respondent/plaintiff uncorroborated and unsubstantiated is not acceptable for the reasons as aforesaid. 13. We find that the respondent/plaintiff was to pay a yearly rent of 12,340/- which is expected to be recovered by operating as PLW. His offer bid was about Rs.26,000. Considering this, we can arrive at a fair estimate of the income of the respondent/plaintiff to be six to seven times than that of the said amount of Rs.12,340/-. The figure comes to Rs. 86,380(Rs. 12,340 7). On such basis, for a period of two years and nine months approximately (from 5th March, 2005 to 31st August, 2007) he would have earned Rs. 2,37,545/-. We take it to be Rs.2,60,000/-. 14. We allow a sum of Rs. 2,60,000/- as damages. The decree is modified to such extent. The figure comes to Rs. 86,380(Rs. 12,340 7). On such basis, for a period of two years and nine months approximately (from 5th March, 2005 to 31st August, 2007) he would have earned Rs. 2,37,545/-. We take it to be Rs.2,60,000/-. 14. We allow a sum of Rs. 2,60,000/- as damages. The decree is modified to such extent. We also award interest at the rate of six per cent per annum on the decreetal amount from 1st September, 2007 until realization. We further award a sum of Rs. 1,00,000/- towards cost of litigation and Court fees paid to institute the suit. 15. The suit and the appeal is disposed of accordingly. Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on a priority basis.