K G HIRANANDANI Vs. BHARAT BARRE

JUDGEMENT

(1.) THIS is a suit field by the plaintiff to recover damages for wrongful termination of service amounting to Rs. 92,019. 54, together with interest from the date of suit, from his former employers, the defendants. It is really not necessary for me to refer to the facts of this case in detail for the simple reason that after issues were raised and some evidence recorded, Mr. Daji for the defendants very fairly made a statement that his clients did not desire to dispute the wrongful termination of the services of the plaintiff on which the present suit is based, but would confine the contest to the issues relating to damages, with the result that only Issues Nos. 4, 5, 7 and 8 survived in the present suit. A few facts may however, be mentioned at the very outset. The plaintiff retired on superannuation from his service with the Western Railway in which he was, at the time of his retirement on the 7th January 1962, holding the post of Deputy Chief Mechanical Engineer and was drawing a salary of Rs. 1,600 per month/ On the 12th February 1962 the Defendants employed him in the grade of Rs. 1500-100-2000 as the General Manager-in-charge of their barrel factory in Bombay, and that employment was confirmed by a letter of appointment dated 19th April 1962 written by the defendant company to the plaintiff in which the terms of employment were set out in details. It is not necessary to refer to those terms beyond stating that the employment was in the grade mentioned above, plus certain other liberal benefits mentioned in the said letter, and was for a period of five years from the 12th of February 1962. The plaintiff worked at the factory of the defendant-company in Bombay till the 11th of March 1963, during which period he was deputed to go to Europe and America for certain purpose connected with the Defendants business for about five months. On the 12th March 1963, when the plaintiff went to the defendants factory as usual, he received a message from one D. C. Jalan, a Director of the defendant-company, calling him to the residence of the said Jalan. When the plaintiff went there, the said Jalan told him that for certain reasons to which it is now unnecessary to refer, the plaintiff should work at his own house instead of working at his office, and that the necessary papers would be sent to his house. When however, the plaintiff reminded the said Jalan by his letter dated 9th April 1963 about the increment in salary that had become payable to him on completing a year's service, and sent a further reminder to the said Jalan he received the defendants letter of the 21st of May 1963 alleging that the plaintiff had refused to accept the work which was assigned to him at the company's office at Calcutta and the defendants had, therefore, been constrained to relieve the plaintiff of his service with the effect from the 1st April 1963. The plaintiff by his letter dated 6th June 1963 in reply immediately denied the facts set out in the said letter, as well as the alleged termination of his services, and contended that the defendants were wrongfully and illegally terminating his services. The plaintiff thereafter filed the present suit on the 8th of October 1963 claiming the full salary and allowances payable for the remaining period of his contract of service with the defendants as damages for breach of contract by the defendants.

(2.) IN view of the fact that it is now conceded that the termination of the plaintiff's services by the defendants was wrongful, it is not really necessary for me to refer to the defences that are to be found in the Written Statement in regard to the merits of the controversy between the parties. In paragraph 9 of the Written Statement, the defendants have denied the plaintiff's right to the damages claimed by him and have pleaded that in any event, the plaintiff was bound and liable to mitigate the alleged damages and was not entitled to claim the full amount Rs. 92,019. 54 or any part thereof, or to claim interest thereon. Eight issues were framed by me in this case, but in view of the fact that the only questions that now survive are those relating to the damages to which the plaintiff is entitled, only four of them viz. Issues Nos 4, 5, 7 and 8 need to be dealt with. They are in the following terms:-4. To what amount, if any, is the plaintiff entitled as and by way of damages? 5. Whether the plaintiff was at all material times bound and liable to mitigate the said alleged damages and has deliberately not done so as alleged in paragraph 9 of the Written Statement. 7. To what relief, if any, is the plaintiff entitled? 8. And Generally.

(3.) ON the first date of hearing before me, viz. 21st August 1968, evidence of the plaintiff was led in regard to all issues, because it was only when the hearing was resumed on the next day that Mr. Daji made the statement that he would not contest the fact that the termination of the plaintiff's service was wrongful. In view of that statement by Mr. Daji it is now necessary for me to refer only to such parts of the plaintiff's evidence as relate to the question of mitigation of damages. Before I deal with the evidence on that point, it may be stated that the defendants have not led any evidence in this case at all. The plaintiff has stated towards the end of his examination-in-chief that, after he received the defendants letter of 21st May 1963, he tried to get employment elsewhere, but was not able to get any offer which he could accept, and that, under the circumstances, he had remained without employment right till now. When cross-examined by Mr. Daji on the point of mitigation of damages the plaintiff deposed that though he had in mind the manufacture of nuts and bolts as a business for himself after he retired from the railways and before he joined the defendants' service, he did not make any attempt in that direction after the termination of his services by the defendants, he tried to get employment with a concern offered to him were not suitable for him. He has stated that at this distance of time he does not remember what those jobs were, but what he recollected now was that they were not suitable from the point of view of view of salary as well as from the point of view of the nature of the work he would have been called upon to do. He, however, frankly admitted that he does not remember, even approximately, what was the salary that was offered to him by that concern or what was the nature of the jobs which they had offered him. The plaintiff has stated that he did not get any offers from anybody else, though he did try to obtain employment with some other private concerns whose names he did not remember. He has stated that he made those attempts through friends, but did not make any written applications to anybody, nor did he advertise for a job, and that he continued to make those attempts "till 1964". When questioned further, he said that he did not remember in which part of the year 1964 he had made attempts for getting employment. The plaintiff has stated later on in his cross examination that since August 1963 he has become a financing partner in a firm known as Everest Construction with a 30 per cent share, he having contributed 30 per cent capital of the said concern, and he has produced a copy of the Partnership Deed in respect thereof which has been tendered and marked Ex. 2. The Plaintiff has deposed that, being a financing partner, he did not have to do any work in connection with the business of the said firm, and that he did not attend its office at all except on rare occasions and did not have to go to the company's office even for the purpose of signing cheques, as almost all the cheques were prepared in the office and sent for his signature after being signed by one other partner who was also a financing partner, and that on an average he used to sign one or two cheques a month. Reference may be made only to two of the clauses of the Partnership deed (Copy ex. No. 2) viz. , Cls. 9 and 14. Though Clause 9 provides that the partnership business is to be managed and conducted by all the partners by mutual consultation and that the overall supervision as well as policy decisions were to be made by the capitalist partners, of whom the plaintiff is one, Clause 14 lays down that it is he two working partners, who were to receive. , over and above their shares in the profits of the partnership, a fixed remuneration of Rs. 500 per month. This would show clearly that it is they who were to attend to the day-to-day business of the firm and not the plaintiff or the other capitalist partner who were only to regulate the policy of the firm. Having regard to the oral testimony of the plaintiff, and having regard to the terms of the Partnership Deed (Copy Ex. 2), I have come to the conclusion that the interest of the plaintiff in the firm of Everest Construction was nothing more than his interest as an investor, and that it did not require him to attend to the day-to-day business of that firm, with the result that the return which he got on his investment cannot be taken into account as being in mitigation of damages in the present in cross-examination that he had not tried to get any employment after his services with the defendants were terminated, his answer was, "i did try but I assumed that I continued in the Defendants' service in view of my five-year contract with them", and he has further stated that he assumed that he would be called to duty at any time, as the said Jalan had told him on 11-3-63 that his brothers might reconsider the matter of the plaintiff's employment. He then proceed to say that he came to know of his termination by the defendant's letter dated 21-5-1963. Reading these answers together, it is quite clear that it is only from the 11th of March 1963 till 21st May 1963 that the plaintiff assumed that he had continued in the defendant's service. In any event, what I am concerned with is only the question of assessment of damages, and the plaintiff has stated in clear terms that he did make the efforts to which he has deposed. Mr. Daji then asked the plaintiff in cross-examination whether after receipt of the letter dated 21st May 1963 he had shown readiness and willingness to work in the company's office at Calcutta, and the answer of the plaintiff was that he had by his letter dated 6-6-1963 in reply clearly stated that there had been no such assignment of work in the company's Calcutta office to him. When it was further put to him that after receipt of the said letter dated 21st May 1963 he did not offer to go to Calcutta, the plaintiff stated that he was never offered any job by the defendants at Calcutta, nor did not occur to him that he should make any such offer. In this connection, it may be mentioned that the plaintiff has stated that the defendants had a large factory in Bombay, and only a tiny plant at Calcutta, and that answer of the plaintiff would clearly suggest that a General Manager in the grade and with the allowances which were granted to the plaintiff would not be require to work at Calcutta. It may be mentioned that there is no evidence before me at all, oral or documentary, to show that any job had been offered by the Defendants to the plaintiff at Calcutta. As far as the statement in the said letter of 21st May 1963 that the plaintiff had refused to accept the assignment of work at Calcutta is concerned, that is a matter prior to the breach and cannot be taken into account in assessing damages which must be as at the date of the breach. At the conclusion of his cross-examination, Mr. Daji put to the plaintiff that he had not made any genuine efforts to obtain employment, to which his answer was that he did make "some efforts". That is all the evidence that arises for my consideration in regard to the question of damages.