2021 Supreme(Del) 282

IN THE HIGH COURT OF DELHI AT NEW DELHI
RAJIV SAHAI ENDLAW, AMIT BANSAL, JJ.
Arvind Medicare Private Limited - Appellant
Versus
Dr. Neeru Mehra - Respondent
FAO(COMM) No.12 of 2021
Decided on : 21-05-2021

Point of Law: Termination of service - Respondent/defendant stopped reporting for work/duty and which as aforesaid would amount to termination of Service Contract by respondent/defendant - Not open to the appellant/plaintiff to contend that the Service Contract is subsisting.

Headnote:

Code of Civil Procedure, 1908 - Order XXXIX Rules 1 and 2 - Indian Contract Act, 1872 - Sections 27, 54 - Specific Relief Act - Section 14 - Constitution of India, 1950 - Articles 19, 23, 21 - Service Contract - Termination of - Resignation - Appellant instituted suit, from denial of interim relief wherein this appeal arises, pleading that respondent/defendant approached appellant/plaintiff and assured appellant/plaintiff that she will provide reliable and interrupted professional healthcare and medical service, by serving at appellant/plaintiffs hospitals - Appellant/plaintiff, vide Service Contract appointed/engaged respondent/defendant, “on case-to-case basis” as a “Visiting Consultant -Obstetrics &Gynaecology” - Respondent/defendant approached appellant/plaintiff to provide a long term and uninterrupted professional healthcare - It was unconditionally undertaken by respondent/defendant, that if respondent/defendant, for any reason whatsoever chose to terminate Service Contract prior to expiry of term thereof, she will not serve at any facility/clinic/hospital within a radius of 5 kms. of appellant/plaintiffs facilities aforesaid at Gurugram, for a period of one year from date of termination - Appellant/plaintiff performed all its obligations under the Service Contract - Respondent/defendant, suddenly and abruptly sent an e-mail showing her desire to resign and requested appellant/plaintiff to accept her resignation - Appellant/plaintiff rejected resignation of respondent - Respondent/defendant, inspite of rejection of her resignation, did not terminate Service Contract - As per said Service Contract, the respondent/defendant, upto 31st March, 2022 was required to perform her obligations thereunder and was not entitled to do any private practice anywhere, except at her residence-cum- clinic at Gurugram and was not entitled to undertake any employment, fulltime or part-time, or to engage herself in any trade or business; and due to respondent/defendant, with effect from 30th October, 2020 having stopped performing her obligations under Service Contract appellant/plaintiff was suffering irreparable loss and injury and loss of face owing to being unable to serve patients visiting its hospitals - Appellant/plaintiff, thus in suit from which this appeal arises, sought (a) a decree for permanent injunction restraining respondent/defendant from undertaking any private practice anywhere except at her residence-cum-clinic in Gurugram and from undertaking any employment or engagement in any trade or business, till 31st March, 2022 and alternatively from practicing at any facility/clinic/hospital within a radius of 5 Kms. of the hospitals of the appellant/plaintiff, for a period of one year; and, (b) of recovery of damages in the sum of Rs.61,75,000/- with interest.

Finding of the Court:

while a contract of personal service is not enforceable, where the contract is governed by statutory rules, the same shall prevail - Argument of appellant/plaintiff also appears to be, that since respondent/defendant has not terminated Service Contract, Service Contract subsists and respondent/defendant, during subsistence thereof is not entitled to serve elsewhere - Though counsel for appellant/plaintiff during hearing has not pressed said argument, but we may state, that as per Clause 8 of Service Contract, upon respondent/defendant absenting without permission or authorization, for seven consecutive days, respondent/defendant is deemed to have terminated Service Contract, kicking in provisions of Clause 10 - It is case of appellant/plaintiff itself that respondent/defendant stopped reporting for work/duty and which as aforesaid would amount to termination of Service Contract by respondent/defendant -It is thus not open to appellant/plaintiff to contend that Service Contract is subsisting -No merit is found in appeal.

Result: Appeal Dismissed