Dr.Animesh M. vs The Employees State Insurance Corporation & Ors.

Justice K. Haripal, Judicial Member

Applicant is a Post Graduate Medical Practitioner who was appointed as a Senior Resident, on contract basis for a period of one year in the Employees State Insurance Hospital, Ezhukone. According to the applicant, he joined duty on 09.01.2020 and 'executed an agreement dated 14.01.2020 with the third respondent on certain blank papers as directed by the third respondent.' He was paid salary for the month of January 2020 after withholding an amount of Rs.15,000/- towards ad hoc deductions, as seen in Annexure A-3. He was discharged from duty in ESI Hospital on 28.11.2020 and was issued Annexure A-4 testimonial and Annexure A-5 experience certificate.

According to the applicant, on 27.10.2020, before relief, he had orally informed the DMS, DD Administration and Department of Surgery about his inconvenience to continue in the post of Senior Resident after 28.11.2020 so that the patients do not suffer for want of a Surgeon and also for making alternate arrangements. Thus, taking note of the prior intimation with intention to relieve him from duty and to get back the security deposit of Rs.15,000/- as well as for the last month's salary of November 2020, on 25.11.2020 he submitted a request. Copy of the said request is not available with him.

It is submitted that to the utter dismay of the applicant, later he received Annexure A-6 communication dated 22.12.2020 from the second respondent requesting to refund one month's salary of Rs.86,825/- to the ESIC. Thereafter, he received a communication from the 3^rd respondent also, as seen in Annexure A-7. Then, he gave Annexure A-8 reply to Annexure A-7 stating that he was relieved from the Hospital on 28.11.2020 as requested by him on 25.11.2020; he denied that he had left without serving the notice period. He submitted that he had informed the DMS, DD Admin of the Department of Surgery orally about his inability to continue and to make alternate arrangements. Also said that an amount of Rs.15,000/- was deposited as security deposit. Moreover, it is stated that a signed plain stamp paper was taken for the use of the office at the time of joining, so he replied that he is not liable to refund one month’s salary and also demanded to pay back Rs.15,000/- taken as security deposit.

After Annexure A-8, Annexure A-9 Memorandum was issued to him on 11.05.2021 by the 3^rd respondent asking him to deposit an amount of Rs.86,825/- and also intimating that, failing which, the office will be constrained to take legal action against him. A similar communication was sent again on 22.06.2021 and 30.07.2021. It appears that the matter remained dormant for some time, the applicant did not respond such communications. Later, the 2^nd respondent sent Annexure A-13 communication to the Managing Director, P.K.Das Institute of Medical Sciences, Vaniamkulam, Ottappalam where the applicant is presently employed, which prompted the applicant to approach this Tribunal on 07.05.2024 seeking to call for the records leading to Annexures A-6, A-7, A-9, A-11, A-12 and A-13 orders issued by the respondents directing to refund Rs.86,825/- and to set aside the same, and to direct the respondents to refund the advance amount of Rs.15,000/-. It is further sought to direct the respondents to desist from enforcing Annexure A-6, A-7, A-9, A-11, A-12 and A-13.

The respondents filed a preliminary objection, submitting that Annexures A-6, A-7, A-9, A-11 and A-12 were issued in 2020 and 2021 and a relief seeking to quash the same is barred by limitation. The O.A has been filed only in 2024 without an application for condoning the delay, and hence the very Original Application is not maintainable.

We heard the learned counsel Shri.Karthik J Sekhar for the applicant and Shri.T.V.Ajayakumar, learned Standing Counsel for the respondents.

Admittedly, the applicant is a Post Graduate Surgeon. Annexure A-1 order issued by the 3^rd respondent indicates that, on his application, after conducting an interview, the applicant was selected as a Senior Resident for one year in the 3^rd respondent Hospital in the Department of Surgery on contract basis. In the order of appointment itself, it is provided that he is 'required to enter into an agreement with the Medical Superintendent on a non-judicial stamp paper of Rs.100/-'. The applicant also has submitted in the O.A that he had executed an agreement dated 14.01.2020 with the 3^rd respondent in certain blank papers. Even though a detailed reply has not been filed touching para-wise statements of the O.A, the learned counsel has submitted that such a contention cannot stand to reason. The learned counsel representing the applicant has reiterated the contentions in the O.A and submitted that even if any amount is due from the applicant, recovery of the same can be done only by filing a suit for realisation of money.

The bone of contention of the parties is touching the genuineness or otherwise of Annexure A-2 agreement. As mentioned earlier, Annexure A-1 order of appointment itself provided for entering into an agreement with the Medical Superintendent on non-judicial stamp paper worth Rs.100/- before joining duty. Copy of the agreement is produced and marked as Annexure A-2. Clause 6 of the agreement reads as follows:

Now the applicant wants to say that he did not execute any agreement but only signed certain blank papers as directed by the respondents. We have no doubt in our mind that such a contention sounds absurd and cannot have judicial scrutiny. He does not dispute the signatures found on Annexure A-2. A plain reading of the document does not suggest that his signatures were obtained on blank papers.

Secondly, Annexure A-2 was produced from the possession and power of the applicant. He himself has admitted in clear terms that he had 'executed' such a document. After having admitted that he had executed the document, he cannot be heard to say that he was entrusting certain signed blank papers with the 3^rd respondent.

Execution of a document is more than mere signing. To execute a document simply means to perform what is required by law to give validity to a writing as by signing and sealing it. Execution means the due performance of all formalities necessary to give validity to a document. Execution is a solemn act of the executant who must own up the recitals in the instrument and there must be clear evidence that he put his signature in a document after knowing fully its contents. (see the decision Bhutkani Nath and others v. Mt. Kamaleswari Nath and another [AIR 1972 Assam and Nagaland 15])

In this connection, we have come across a judgment of the Division Bench of the Nagpur High Court authored by Vivian Bose and Puranik JJ, reported in AIR 1938 Nagpur 152 in Dalchand Mulchand and others v. Hasanbi, W/o. Ali Razakhan and others reading thus:

Again, applicant is not a layman. He is a person not less than a Post Graduate in Surgery. It does not stand to reason that he had left blank signed stamp papers without understanding the ramifications of such a course with third persons. As indicated earlier, his appointment order itself contained a clause for executing an agreement. Thereafter, the contention that he had signed on a blank paper requires to be rejected outright.

Now, having failed to discredit Annexure-A2, we will turn to the other contentions. He wanted to say that he had given oral intimation one month in advance about his leaving the hospital. He had joined the hospital on contract basis for one year on 14.01.2020. Ordinarily, the period of contract is up to 13.01.2021. Any premature quitting from the institution required one month's notice in writing as quoted supra. Therefore, there is no meaning in saying that he had given oral information etc. Such a contention also makes no sense. On the other hand, on his own showing, he had given a written request only on 25.11.2020, three days prior to his quitting the institution.

After having violated the provisions of Annexure A-2 and without challenging the communications in Annexures A-6, A-7,A-9, A-11 and A-12 in time, now he has approached the Tribunal prompted by Annexure A-13 order issued by the 2^nd respondent to the present employer. Challenge against Annexures A-6, A-7, A-9, A-11 and A-12 is clearly time barred. Those documents cannot be challenged under the cover of Annexure A-13.

We find that the applicant has not come with clean hands. We cannot comprehend as to why, in the backdrop of the agreement, he was paid salary for the last month. Anyhow, since he had left the institution before completion of the period of the contract, he owed one month's consolidated amount to the respondents, after setting off the security deposit. Any attempt to enforce the contractual liability, if the law permits, cannot be forestalled through an Original Application.

The Original Application is liable to be dismissed. Dismissed. We abstain from awarding costs.

The interim order granted on 08.05.2024 stands vacated.