Delhi High Court: In the present petition filed under Article 227 of the Constitution read with Section 115 of the Code of Civil Procedure, 1908 (‘CPC’) against the order dated 19-07-2023 passed by the Additional District Judge-09, Central, Tis Hazari Courts, Delhi (‘Trial Judge’), whereby application under Order XVI Rule 1 & 2 of CPC filed by the petitioner praying for recall of the summons of witness was dismissed, Shalinder Kaur, J., held that there was no infirmity in the order passed by the Trial Court. The records summoned upon the application of respondent/plaintiff would reveal the basis of the dispute between the parties.
In the instant case, the respondent was appointed at the post of Regional Sales Manager by Nutrine Confectionary Company Pvt. Ltd, However, his employment continued with the respondent on executing the contract of appointment dated 17-08-2007 for the post of Area Sales Manager in the petitioner company. The petitioner company terminated the employment of the respondent vide termination letter dated 02-11-2016 alleging misconduct in his dealings with the distributors of the petitioner company. During the course of employment, the petitioner company found that there were various irregularities committed by the respondent, which led to thorough investigation by the petitioner company with respect to alleged misconduct. As per the investigation report dated 02-11-2016, the committee constituted by the petitioner company concluded that the respondent had committed serious breach of code of ethical business conduct and applicable employees’ regulation, and such misconduct rendered him liable for termination of his employment contract.
The respondent issued legal notice dated 24-11-2016 to the petitioner company alleging his termination being illegal and seeking reinstatement with consequential benefits. The notice was replied to by the petitioner company vide reply dated 12-12-2016. In retaliation to his termination, the respondent instituted a suit before the Trial Court for recovery of an amount Rs 12,93,910/-. On 18-01-2019, the respondent filed the first list of witness before the Trial Court. It was pointed by the petitioner that the affidavit annexed with suit was not in compliance with Order XIX of CPC and certain paragraphs were not duly verified in the plaint. Later on, 03-03-2023, the respondent filed the revised list of witnesses along with the fresh affidavit and then moved an application for summoning of the witnesses, being the MIS officer of the petitioner company producing the documents of the VAM/DSM subsidy paid to the distributor, Raj Traders.
On 02-05-2024, the Trial Court heard and allowed the application without issuing notice to the petitioner as to the maintainability, necessity, and relevancy of the evidence of the summoned employee of the petitioner company as the witness. The petitioner received the summons issued by the Trial Court requiring the attendance of MIS Officer on 19-07-2023. The petitioner then moved an application under Order XVI Rules 1 and 2 of CPC for recall of summons on 03-07-2023.
The Trial Court on 19-07-2023, while dismissing the objections raised by the petitioner allowed the affidavit of evidence of the respondent. The Court then placed the burden upon the petitioner to appoint a responsible person or person having custody of summoned documents to appear as a witness before the Trial Court and to produce the said record on 07-12-2023.
The Court, after perusal of facts, stated that Order XVI of CPC was a procedural requirement contemplated for full-fledged trial in a suit. The Court further stated that the respondent had merely sought permission of the Trial Court to bring on record the documents, which were in possession of the petitioner, a right which cannot be denied.
The Court noted that the misconduct with respect to dealings of the respond with Raj Traders was one of the prime reason of dispute between the parties, which ultimately led to dismissal of the respondent from service with the petitioner company. Thus, the records to be summoned from the company of the petitioner would reveal the basis of the dispute between the parties.
The Court further stated that, there was no infirmity in the impugned order passed by the Trial Court and it had rightly allowed the application. Consequently, the petition along with the pending application was dismissed.
[Hershey India Pvt. Ltd. v. Rajendra Prasad, 2024 SCC OnLine Del 4439, decided on: 27-06-2024]
Advocates who appeared in this case :
For Petitioner: Rajiv Tyagi and Piyush Jha, Advocates.
For Respondent: Deepak Jain, Advocate.
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