ROCKWELD ELECTRODES INDIA LIMITED Vs. K C VIJAYAN

JUDGEMENT

(1.) THE plaintiff O.S. No. 80 of 1970 on the file of the Sub-Court, Chingleput, is the appellant. THE suit was filed for recovery of a sum of Rs. 28, 676, 01 made up of a sum of Rs. 21, 507, 01 being the amount payable by the defendant on account of the money spent by the plaintiff on his foreign training and Rs. 7, 169 being the liquidated damages payable as per the contract of service, Ext. A4 between the parties.

(2.) THE case of the plaintiff was this : THE defendant was employed under the plaintiff as Formulator from about September, 1965. He was subsequently deputed to take training in England on the plaintiff providing funds for the purpose. After completion of his training and return to India, he was to serve the plaintiff for the stipulated period in consideration of the plaintiff having sponsored and provided for his stay and training in England. An agreement, Ext. A4, dated 7th October, 1969, was entered into between the parties embodying the terms and condition, of service. According to the agreement, the defendant shall remain in the service of the plaintiff from 15th October, 1968 till 14th October, 1972 in consideration of the plaintiff having sponsored and provided him training in England. In case the defendant were to leave the services of the plaintiff before the completion of the minimum period of service mentioned in the agreement or brings about a situation by misconduct or in any manner except for reasons beyond his control compelling the plaintiff to terminate his services, the defendant has to refund all the amounts spent by the plaintiff in connection with his training abroad. Further, the defendant shall be liable to pay to the plaintiff as liquidated damages a sum equivalent to 1/3rd of the total amount incurred by the company on his training and becoming refundable as provided in the agreement. If the defendant leaves the services of the company after completing one year of service under the agreement, he shall be liable to refund only such proportion of the several amounts and liquidated damages stipulated in the agreement as the service remaining to be rendered by him bears to the total service from the date of his reporting after training till 31st December, 1972. For this purpose, service remaining to be rendered under the service contract will be rendered off into full years less than six months being ignored and six months or more being treated as full year. If the defendant fails to pay the said amount, the company, would be entitled to recover the same from him and also have the right to withhold all his dues and adjust the same against the amount payable to him in accordance with the provisions in the agreement. THE defendant is bound to diligently and faithfully and to the best of his skill and ability serve the plaintiff and perform all the duties pertaining to his job and devote the whole of his attention and energy to his duty and shall and will do all such things as may from time to time and at any time during such term be reasonably required of him by the plaintiff or any other person or persons employed by the plaintiff and having the authority to require the same to be performed by the defendant. Notwithstanding anything contained in the agreement, the plaintiff's shall be at liberty to terminate the engagement of the defendant forthwith in any of the following events, namely, (1) if the defendant failed, refused or neglected to carry out and perform his duties and undertakings (2) if the defendant was guilty of any fraud, insubordination or misconduct in the course of performance of his duties (3) if the defendant commits any act which is prejudicial to the continued relationship between the plaintiff and the defendant, and (4) if the defendant commits breach of any of the terms of the service contract. In any such event, the employment of the defendant shall absolutely cease and determine upon delivery of a notice of termination to him either personally or by sending the same by registered post and he shall become liable to refund the training expenses and to pay liquidated damages to the company in the same manner as provided for in the agreement. THE defendant who later became Development officer-in-charge was attending to his duties as contemplated in the agreement till about March, 1969 and he thereafter absented himself on several occasions without leave or prior permission from his superiors and there was also a definite attitude of indifference to his duties, and in fact, his outturn of work showed neglect of duty and want of diligence pertaining to his job. THE plaintiff first preferred to overlook some of the acts of absence without leave but when persisted in and when the defendant left the factory on 15th July, 1969 to attend a lunch without obtaining previous permission but merely placing a written request for half a day's casual leave on the office table and further when he again absented himself from 17th July, 1969 on grounds of fever and sickness, it was found that he had no fever but though moving about expressed that he has back sprain and subsequently sent a medical certificate which refereed only to back-sprain, the plaintiff by their President called for a reasonable assurance from the defendant to the full satisfaction of his superiors that he will not repeat such acts of gross indiscipline in future. THE defendant in reply thereto denied having committed any act of indiscipline and stated that the need for reasonable assurance did not arise at all and assumed an attitude inconsistent with his position as employee under the plaintiff. THE defendant, however, offered to join duty on 28th July, 1969. But, with reference to the letter of the plaintiff to him, dated 24th July, 1969 he was called upon to express regret for his previous mistakes and misdemeanours by tendering an apology to close the correspondence as to the conduct of the defendant and to continue him in service so as to have the benefit of his training in England for the company, the defendant refused to tender any apology or express regret or give an assurance. On 28th July, 1969 when he was not permitted to join duty without such assurance, he sent a laywer's notice alleging that the plaintiff has unilaterally rescinded the contract of service and had also committed breach of contract and made some claims against the plaintiff on that footing. THE plaintiff by their reply notice, dated 30th July, 1969, made it perfectly clear that there was no rescission of the contract. THE defendant was called upon to explain the various acts which amounted to misconduct and pending investigation, he was placed under suspension as the plaintiff intended to hold a regular enquiry into the conduct of the defendant after framing a charge. Charges were accordingly framed and communicated to the defendant by letter, dated 30th July, 1969, and he was informed that an enquiry would be held on 7th August, 1969. THE defendant sent a reply repudiating the charges and stating that he had ceased to be the plaintiff-employee with effect from 8 A.M. on 28th July, 1969 and that he was not obliged to attend any enquiry. THE defendant did not attend the enquiry on 7th August, 1969 and after giving a further opportunity and holding the enquiry on 16th August, 1969, it was found that the defendant was guilty of the charges. THE plaintiff by their letter, dated 20th August, 1969, communicated the findings of the enquiry officer to the defendant and pointed out that his conduct was prejudicial to the continued relationship of employer and employee and that with a view to give one more chance, they (plaintiff) had decided to take a lenient view and let him off with suspension without pay for the period from 28th July, 1969 to 22nd August, 1969 and required him to report for duty on 23rd August, 1969. THE defendant did not report for duty on 23rd August, 1969 and took up a defiant attitude that he had ceased to be an employee of the plaintiff with effect from 8 A.M. on 28th July, 1969. THE plaintiff sent another charge sheet to the defendant dated 13th September, 1969, calling for written explanation for absence without leave for 22 days, from 23rd August, 1969 and on no reply being received fixed an enquiry to be held in respect of the said charge on 6th October, 1969 and informed the defendant of the same by letter, dated 30th September, 1969. THE defendant chose to remain ex parte at the enquiry. THE enquiry officer found that the defendant was guilty of absence without leave for the period from 23rd August, 1969 to 13th September, 1969. THE plaintiff accepted the finding of the enquiry officer and terminated the engagement of the defendant with effect from 7th October, 1969 and communicated the same to the defendant on the same date. Far from there being any decision of contract or breach thereof on the party of the plaintiff, it was the defendant who has brought about a situation by his acts of misconduct compelling the plaintiff to terminate his engagement and he has consequently become liable under the terms of cl. 4 of the agreement. Ext. A4, to pay the plaintiff Rs. 21, 507, 01 p. towards the amount spent by them in connection with his training abroad and also to pay the plaintiff a sum of Rs. 7, 169 by way of liquidated damages, and he had not paid the same in spite of lawyer's notice dated 5th December, 1969.

(3.) THE learned Subordinate Judge framed the following issues (Issues Omitted :- Ed.) on issues 1 and 2, he found that the suit had been properly framed and that Sri Satyanarayana the then Director of the plaintiff-company was competent to represent the plaintiff on the date of plaint. On issues 3 to 11, he found that the plaintiff uniliaterally resigned the contract of employment and committed breach of the contract, that the defendant has not committed any misconduct, that the defendant became absolved from all his obligations under the contract of employment after 28th July, 1969, that the plaintiff is not entitled to hold any enquiry against the alleged misconduct of the defendant after that date, that the enquiry has not been properly and validly held, that the plaintiff was not entitled to dismiss the defendant on the basis of the charges laid against him, that the conduct of A. H. Dalmia, the President of the plaintiff-company has been mala fide, malicious and illegal in so far as it related to his dealing with the defendant and that the plaint was not defective. On issue No. 12 he found that there was no cause of action after 28th July, 1969 for instituting the suit against the defendant as he had ceased to be an employee of the plaintiff on account of breach of the contract of service committed by the plaintiff on 28th July, 1969. On issue No. 13, he found that this is not a fit case for awarding costs in favour of the defendant. On these findings, he dismissed the suit without costs.