P.R Sivanandan Nair v. Saipem India Projects Ltd & Ors.

1. Counsel for the plaintiff submits that on 23.2.2013 Joint Registrar issued summons to defendant no.1; and since he considered defendants no.2 and 3 as part and parcel of defendant no.1 summons were not issued against said defendants no.2 and 3.

2. By the present application under Order V Rule 11 CPC, plaintiff prays that summons be issued to defendant nos.[2] and 3, who are the part and parcel of defendant no.1 and are situated in Italy. Counsel for the plaintiff submits that necessity of filing of this application has arisen as the defendant no.1 in its written statement has stated that defendant no.1 is a separate legal entity and has complete autonomy for day-to-day governance and internal management; and further defendants no.2 and 3 are also separate legal entities. Counsel for the plaintiff submits that defendants no.2 and 3 are a proper and necessary party and in view thereof they have been arrayed as defendants. Elaborating his arguments further Mr.George submits that a letter of appreciation was issued to the 2014:DHC:2449 plaintiff on 29.10.2010 by defendants no.2 and 3. In this letter services of the plaintiff were recognized on his completing 25 years of service with the ENI group. Counsel for the plaintiff submits that since this communication has been denied by the defendant no.1, it would be necessary to issue summons to defendant nos.[2] and 3, as they alone would be able to admit or deny the aforesaid communication.

3. Counsel for the defendant no.1 has opposed the prayer made in this application on the ground that the plaintiff was given employment by the defendant no.1 and throughout his entire period of employment his interaction was only with defendant no.1 he was only reporting to the defendant no.1; and his salary and all dues were also being paid by the defendant no.1.

4. I have heard counsel for the parties and considered their rival submissions. It would be necessary to notice some of the facts as stated by the plaintiff in the plaint. As per the plaint, defendant no.1 is a fully owned company of defendant no.2. The defendant no.2 is the parent company of defendant no.1. Defendant no.3 is the shareholder of defendant no.2. Both the defendants i.e. defendant nos.[2] and 3 have their registered offices at Italy. In June, 1985, the plaintiff was recruited as stenographer-cum-telex operator at a monthly salary of Rs.770/- in addition to HRA and conveyance allowance. Although the plaintiff was performing his function with utmost diligence and devotion over the period of years, the defendant no.1 surreptitiously and in a clandestine manner obtained a resignation dated 12.6.2008; acceptance letter was issued on the same date; and subsequently he was handed over another appointment letter of 11.6.2008. Plaintiff was promoted from time to time, however, his services were illegally terminated on 22.5.2012 by defendant no.1. The plaintiff was issued an employment letter dated 11.6.1985, which shows that the plaintiff was employed by the office at India and the plaintiff was liable to be transferred to any place in India, and subsequent letter of 23.2.2001 was also issued by the office at Delhi, informing the plaintiff of his promotion. A copy of which has been filed by the plaintiff. Resignation letter signed by the plaintiff was also submitted to the Office at Delhi. Another offer letter of 10.6.2008 was issued by the defendant no.1 to the plaintiff. Letter dated 11.6.2008 and 23.2.2001 have been issued from the office of defendant no.1 in India. It is also not in dispute that the plaintiff has been paid salary during his entire period of employment by the defendant no.1. The resignation of the plaintiff was also accepted by the office at Delhi. The salary worksheet which has also been annexed by the plaintiff is also signed by the Manager HRO and ICT at Delhi. Bonus was awarded to the plaintiff from Delhi. All of which would prima facie show that the privity of contract, if any, was between the plaintiff and the defendant no.1 and defendants no.2 and 3 are the separate entities situated at Italy.

5. Counsel for the plaintiff has urged before this court that since the defendant no.1 has disputed letter dated 29.10.2010, which was written by defendant nos.[2] and 3, they would be proper and necessary parties.

6. In the case of Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Ors. reported at JT 1992 (2) CC) 116 it has been held that it is not necessary to implead individual directors as parties; and the plaintiff can always summon a person as a witness in case the plaintiff so chooses. Paragraph 14 of the judgment reads as under:

8. Taking into consideration that the plaintiff was employed by the defendant no.1, which is a separate legal entity, all letters/ correspondence was exchanged between the plaintiff and the defendant no.1, the prayer made in the present application cannot be allowed. In case the plaintiff wishes to call proposed defendants No.2 and 3 as a witness, it would be open for the plaintiff to take such remedies at the appropriate time.

9. Accordingly, the application stands dismissed. It is made clear that any observation made is only for the purpose of deciding the present application and is not a reflection on the merits of the matter.

10. At joint request, list on 12.9.2014 for framing of issues. Parties will bring suggested issues to court on the next date of hearing. G.S.SISTANI, J MAY 08, 2014 ssn