Vidha Lal v. Kathak Kendra Thr Its Director & Anr.

1. By this writ petition, petitioner Ms. Vidha Lal seeks quashing of the impugned order dated 31.1.2012 whereby petitioner’s services were terminated.

2. It is an undisputed fact that petitioner was a contractual employee. The original contract of employment is dated 4.11.2010. That contract was for a period of one year and which was continued thereafter. Petitioner was a Kathak Dancer. In terms of the contract, petitioner’s services could be terminated by three months’ notice without assigning any reason and one 2013:DHC:3976 month’s notice in case petitioner is found guilty of an act or omission or mis-conduct during the period of her employment.

3. A troupe of dancers was led to Spain by one Smt. Geetanjali Lal and who was mother-in-law of the petitioner. Petitioner was a part of the troupe. During the tour to Valladolid, Spain w.e.f 11th to 13th Nov. 2011, there were serious allegations against the troupe members, including the petitioner, and, which showed India and Indians in a very poor light. This was so specifically complained by the Ambassador of India to Spain, and which complaint records the following facts:-

(i) In the hotel in which the troupe stayed, various guests complained that the troupe members were knocking the doors of the other rooms where other guests of the hotel were staying and also were making telephone calls to such other rooms. These incidents continued late into the night and therefore complaints were made by the clients/guests in the adjoining rooms with respect to the Indian troupe. As a result of the disturbance caused by the troupe members, not only the night receptionist was harassed but other clients of the hotel also could not rest.

(ii) One of the troupe members was found urinating from one of the rooms of the 4th floor of the hotel to the street below.

(iii) As a result of mis-behaviour of the troupe members, the hotel had to compensate the other guests with other services or discounts, which affected both their income and their reputation.

(iv) There were huge arguments among the group members whereby scenes were created including of shouting and there even took place a fist fight among two of the members of the group. As a result of the above, the Ambassador had to go to the hotel for giving a warning to the members of the troupe.

(v) Various delays sometimes running even to two hours was caused by the group in reaching the hotel as a result of which there were difficulties of changing the restaurant time tables for the group to have lunch or dinner.

(vi) There were unnecessary requests for change of food items of the menu.

4. In view of the above stated facts, the petitioner’s contractual appointment was terminated by the impugned order.

5. Before me, counsel for the petitioner has argued three points. First point is that the termination of service is illegal because one month’s notice is required to be given which was not given. The second argument is that two of the troupe members were again re-engaged but the petitioner has not been re-engaged. The third point is that no opportunity has been given to the petitioner before the contractual services were terminated.

6. Before proceeding to discuss the points urged on behalf of the petitioner, it would be necessary to refer to the ratio as laid down by the Supreme Court in the case of S.S. Shetty Vs. Bharat Nidhi Ltd., AIR 1958 SC 12. In this judgment Supreme Court has held that even if services are illegally terminated, at best, the aggrieved employee will only have a right to claim damages for the notice period. The relevant paras of the said judgment read as under:- “12. The position as it obtains in the ordinary law of master and servant is quite clear. The master who wrongfully dismisses his servant is bound to pay him such damages as will compensate him for the wrong that he has sustained. “They are to be assessed by reference to the amount earned in the service wrongfully terminated and the time likely to elapse before the servant obtains another post for which he fitted. If the contract expressly provides that it is terminable upon, e.g., a month’s notice, the damages will ordinarily be a month’s wages…….No compensation can be claimed in respect of the injury done to the servant’s feelings by the circumstances of his dismissal, nor in respect of extra difficulty of finding work resulting from those circumstances. A servant who has been wrongfully dismissed must use diligence to seek another employment, and the fact that he has been offered a suitable post may be taken into account in assessing the damages”. (Chitty on Contracts, 21st Edn., Vol (2), p. 559 para 1040).

13. If the contract of employment is for a specific term, the servant would in that event be entitled to damages the amount of which would be measured prima facie and subject to the rule of mitigation in the salary of which the master had deprived him. (Vide Collier v. Sunday Referee Publishing Co. Ltd., 1940-4 All. E.R.234 at p. 237(A). The servant would then be entitled to the whole of the salary, benefits, etc., which he would have earned had he continued in the employ of the master for the full term of the contract, subject of course to mitigation of damages by way of seeking alternative employment.” (underling added)

7. Therefore, even if the services of a contractual employee such as the petitioner was wrongly terminated, at best, the only entitlement of the petitioner will be to damages, and which in this case will be either one month’s salary if there is mis-conduct or three months’ salary if there is no misconduct.

8. There are disputed questions of fact as to whether or not petitioner was guilty of misconduct, but at the same time the letter of the Ambassador of India to Spain cannot be overlooked because it contained very serious allegations against the troupe members as stated above. In any case, the issue would be that even if there is illegal termination of contractual services, the petitioner will only be entitled to damages i.e either emoluments of one month or emoluments of three months and nothing further.