Delhi District Court
M/S Danish Inam vs Bennett Technologies Pvt Ltd on 21 December, 2013
IN THE COURT OF CIVIL JUDGE02, NEW DELHI
DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
PRESIDED BY: SH VINOD KUMAR MEENA
Civil Suit No: 41/2013
Unique Case ID No. 02403C0030382012
M/s Danish Inam
S/o Mr. Z.A. Khan
331/31, 1st floor,
Street No. 22, Zakir Nagar, Jamia Nagar,
New Delhi110025. ... Plaintiff
Versus
1. Bennett Technologies Pvt Ltd.
69, II floor, Regal Building, Connaught Place,
New Delhi110001
2. Bennett Technologies Pvt Ltd.
Through its directors
Building no.6, 2nd floor, Laxmi Garden,
Near Ramesh Nagar Metro Station,
Opp. Metro Pillar Number 337, Above
Style Showroom, New Delhi15 ...Defendants
SUIT FOR RECOVERY OF SALARY
AND DAMAGES ALONG WITH
INTEREST THERE UPON
DATE OF INSTITUTION : 16.05.2012
DATE OF ARGUMENTS : 09.12.2013
DATE OF DECISION : 21.12.2013
JUDGMENT
1. Vide this order I will dispose of the suit which was instituted for recovery of salary and damages along with interest thereupon
2. The relevant facts pleaded in the plaint are as follows:
(i) That the plaintiff was working in defendant no.1 and 2 company which is duly incorporated under CS No 41/2013 Danish Inam vs. Bennett Technologies Pvt Ltd. 1 of pages 13 the provision of the Companies Act, 1956, having its registered office at 69, 2 floor, Regal Building, Connaught Place, New Delhi.
(ii) The plaintiff's reporting officer was defendant no.3 and in loop defendant no.4 of the company (both defendant no.3 and 4 deleted vide order dated 20.09.2012). It is averred in the plaint that Defendant no.3 always tries to demoralize plaintiff''s efforts for the company and even used to taunt plaintiff by making religious comments. Plaintiff also made verbal complaints to defendant no.4 regarding the same. (iii) Plaintiff also reported the matter to CEO and after listening to plaintiff the CEO asked plaintiff not to tell any one and also not to go to police as it will tarnish the reputation of the company. He also assured him that everything would be fine.
(iv) A meeting was fixed on 29.03.2012 by the CEO to resolve the issue but in the meeting room the plaintiff found only defendants no. 2 and 3 present there and CEO was not found there. He was also asked to resign from his services by defendant no.3 without disclosing any reason for the same. It was also told to plaintiff by the defendant no.3 that he would not get the salary for the last month.
(v) Thereafter, plaintiff approached to CEO who also directed him not to come to office from then onwards otherwise a case of tress pass shall be registered against him.
CS No 41/2013 Danish Inam vs. Bennett Technologies Pvt Ltd. 2 of pages 13
(vi) On 01.04.2012 plaintiff sent an e mail for his salary but no proper reply was given by defendant no.1 and 2. On 07.04.2012 plaintiff received an undated show cause letter issued by defendant no.1 and 2 stating therein that plaintiff has been absconding from 27th March 12 .
(vii) On 12.04.2012 plaintiff sent a legal demand notice to defendants through speed post, registered post which was not returned back. Plaintiff also sent notice through email which was received by defendants and duly replied by them in which defendant no.1 and 2 has alleged a theft of laptop and anonymous complaint of molestation, forgery, and data theft.
It is therefore, claimed by the plaintiffs that the defendants are liable to make the payment of the suit amount of Rs. 75,000/, along with pendentlite and future interest @ 18 per cent per annum from the date of filing of present suit till its realisation from defendants as well as a court fee.
3. Perusal of records show that suit was instituted on 17.05.2012 and processes were issued against defendants. Appearance was filed only on behalf of defendants and written statement was also filed on behalf of defendants .
4. In the written statement filed on behalf of the defendants the relevant preliminary objections taken are that suit of hte plaintiff is not maintainable on law or on facts and the cause of action as alleged in the plaint are false, baseless and concocted. It is also averred that plaintiff has not disclosed the true and material facts before the CS No 41/2013 Danish Inam vs. Bennett Technologies Pvt Ltd. 3 of pages 13 Court. The accounts towards plaintiff stands settled and he is entitled for any salary if she or he has not performed her/his work as per the settled law of Hon. Supre Court i.e " No work No Pay."
It is also averred in the written statement that The shifting of the plaintiff from HR department of the defendant company to work under the supervision of defendant no.3, was as per the induction programme of months and said shifting was not acceptable to the plaintiff , thereafter, he stopped coming to the office of the defendant company without assigning reason thereof. On15.03.2012 and 20.03.2012 the plaintiff had attended his office only for half day. Further the two emails sent by the plaintiff to defendants on 23.03.2012 and 26.03.2012, were from his official laptop without being present in the office. The plaintiff was reporting to the CEO of the defendant company for the first two and half months and thereafter to Mr. Jitender Verma. Defendant also denied that they used to taunt the plaintiff being a muslim. On 29.03.2012 the plaintiff was asked to explain about his unauthorised absence from the duties to which he told that his mother was hospitalised and did not report to work but plaintiff had not intimated the same to defendant company prior proceeding on leaves. He also told that he would resume his duties as and when his mother would recover but plaintiff did not return. The plaintiff attendance record shows that he had been irregular in service and being incharge of the pay roll he had been modifying the salary for the month of January and February 2012 to get full salary and taken Rs. 14,250/ in addition to the actual amount for which he was legally entitled. As per the records of defendants company, Rs. 3326/ are due on the plaintiff. Further the defendant is liable to pay for laptop or cost thereof Rs. 30,000/ CS No 41/2013 Danish Inam vs. Bennett Technologies Pvt Ltd. 4 of pages 13 approx and Rs. 52,350 / towards licensed software installed in the laptop to the defendant company.
5. In the replication, the plaintiff has traversed the contents of the written statement filed by the defendants and reiterated and reaffirmed the contents of the plaint.
6. Vide order dated 20.09.2012 defendant no.3,4, and 5 were deleted from the array of parties as no effective relief has been claimed against them. On the aforesaid pleading of the parties, the following issued were framed :
1. Whether the plaintiff is entitled to a decree of Rs. 75,000/ along with interest @ 18 per cent per annum? OPP.
2. Whether the suit of plaintiff is not maintainable as per law? OPD.
3. Whether the plaintiff is taking advantage of his own wrong ?OPD
4. Whether the plaintiff is was unauthorisedly absent from his work during the period for which the plaintiff is claiming the salary?
OPD.
5. Relief.
7. In support of its case, the plaintiff examined himself as PW1 and his mother Mrs Mehtab Jahan as PW2.
PW1 Danish Inam tendered his affidavit in evidence as Ex. PW1/A and also reliedupon the documents Ex PW1/A to Ex. PW1/K. Document Ex. PW1/A is offer letter and salary letter ; Document Ex. PW1/B is copy of emails ; Document Ex. PW1/C is CS No 41/2013 Danish Inam vs. Bennett Technologies Pvt Ltd. 5 of pages 13 original show cause notice ; Document Ex. PW1/D is legal notice dated 12.04.2012; Document Ex. PW1/E is postal receipt; Document Ex. PW1/F is copy of reply dated 03.05.2012; Document Ex. PW1/G is reply on behalf of plaintiff; Document Ex. PW1/H is postal receipt w.r.t reply on behalf of plaintiff; Document Ex. PW1/I is copy of the reply to notice concealed by advertisement; Document Ex. PW1/J is refused letter and Document Ex. PW1/K is copy of SMS records.
In his crossexamination he stated that he had joined the defendant company in the month of December 2011 or first week of January 2012. as senior executive ( HR). The nature of his job was salary processing of employees, statutory compliance and taking care of issues relating to employees and their redressal and the recruitment whenever required. He could not recall exactly his probation period.
On being questioned about the basis of his claim for salary for the extra work he replied that he had done the work of submissions of PF and ESI Challan form and used to go to the respective office for official work but he was not reimbursed for the same. Defendants also assigned the duty to deal with the clients situated in Gurgaon and he has also not been reimbursed with even for the fuel .
On further questioning about the nature of extra work, he replied that sometimes he did data entry work, sometime he need to understand the requirement of the clients which is required for software which have been developed by the defendants, though he was not trained on that softwares.
CS No 41/2013 Danish Inam vs. Bennett Technologies Pvt Ltd. 6 of pages 13 PW1 also denied that he usually come late or take half day leaves. I had taken leave at two occasions due the fact that his mother was ill for which he had messaged Mr. Jitender Verma. He also denied that as he was also dealing the matters regarding the salary and payroll and he has have taken full salary for the month of January and February despite the fact that he has have taken certain leaves.
PW2 Mrs. Mehtab Jahan, the mother of the plaintiff also tendered her evidence by way of affidavit Ex. PW2/1 and also relied upon the document Ex. PW2/A and Mark A ( colly) which are copies of discharge summary, medical history, medical report etc. In her cross examination she stated that was hospitalised from 15.03.2012 to 17.03.2012 in hospital Alshifa at Abul Fazal Enclave, New Delhi.
Thereafter, plaintiff evidence was closed vide separate statement of plaintiff and matter was listed for defendant evidence.
8. Defendant produced Sh. Mantu Kumar Singh who has been examined as DW1. DW1 tendered his evidence by way of affidavit Ex. DW1/1 and also relied upon the documents Ex. DW1/A to Ex. DW1/C. Document Ex. DW1/A is authorisation letter dated01.07.2013, Document Ex. DW1/B are emails dated 23.03.2012 and 26.03.2012 and Ex. DW1/C is electronic attendance record w.e.f 27.12.2011 to 27.03.2012.
In his cross examination he admitted that he has been working at the same post where the plaintiff was posted earlier and an email has been sent to Mr. Jitender Verma by the plaintiff mentioning therein that "are you planning to replace with Mantoo?".
CS No 41/2013 Danish Inam vs. Bennett Technologies Pvt Ltd. 7 of pages 13 He further stated that the plaintiff used to leave the office for PF office and after 23 hours, left for his home for his personal issues. As per Mr. Ranjan Soni plaintiff himself stated that he left for his home after working at PF office. Sh. Ranjan Soni was the reporting officer of the plaintiff for the first two and half months and thereafter, Mr. Jitender Verma was the reporting officer of the plaintiff. On 23.03.2012 the plaintiff was sent to client site of plaintiff at Sona Koyo Stering Systems Ltd from where the plaintiff absconded and on the evening of 23.03.2012 an email was sent to Jitender Verma. A lap top has been issued to plaintiff, however, the defendants do not have any documents to prove this fact as plaintiff himself was empowered to issue anything. It is further averred by DW1/1 that the biometric machine keeps the attendance record of the employees is maintained by the management and the attendance usually checked by Danish Iman. The record in the biometric machine cannot manipulated at the stage of making the attendance. However, manipulation are possible at the stage when the datas are procured from the machine by the concerned officer. Ex. DW1/C is taken from biometric machine. The defendants have stopped the salary of the plaintiff for the month of March. On 29.3.2012 the plaintiff have not marked his attendance. He further admitted that on 1.3.2012 the plaintiff has worked for 8 hours 19 mints and on 2.3.2012, plaintiff marked the attendance for 48 mints and his attendance was marked as absent. There are no other dues pending against the plaintiff except Rs. 3326/. Before releasing salary, Mr. Ranjan Soni cross checks it. DW1 also denied that from 23.3.2012 to 28.3.2012 the plaintiff was sent to work with Sona Koyo at Gurgaon. Thereafter, the defendant evidence was closed.
CS No 41/2013 Danish Inam vs. Bennett Technologies Pvt Ltd. 8 of pages 13
9. After going through the record, the court has made the following issue wise findings:
Issue no.1
10. As far as the issue no.1 i.e whether the plaintiff is entitled to a decree of Rs. 75,000/ along with interest @ 18 per cent per annum? OPP,is concerned, it was incumbent upon the plaintiff to prove that he was entitled to decree for a sum of Rs. 75,000/ against the defendant. It is submitted by ld. Counsel for plaintiff that plaintiff has worked for entire month of March 2012 and the salary for the month of March 2012 has not been credited in the account of plaintiff. It is also submitted by ld. Counsel for plaintiff that plaintiff is also entitled for one month salary and also entitled to receive damages for mental harassment that has been caused due to the conduct of defendant.
Per contra it is submitted by ld. Counsel for defendant that the plaintiff has himself left the job and he was irregular in attending the office and same is substantiated by attendance record vide Ex. DW1/C. It is further submitted by ld. Counsel for defendant that the conduct of the plaintiff was not up to the mark of the the professional ethics, he came office and left office as per his convenience and wishes and due to such casual attitude the defendant has suffered loss of reputation and goowill and also suffered loss in monetary terms.
After hearing the submissions and after going through all the records and document as filed on behalf of both the parties it is observed by the Court that in plaint as well as in evidence it is averred by the plaintiff that he was tormented by defendant by hurting his religious sentiments. However, no document, no CS No 41/2013 Danish Inam vs. Bennett Technologies Pvt Ltd. 9 of pages 13 complaint filed by him in this behalf has been placed on record to substantiate the same. To this point, it was substantiated by ld. counsel for plaintiff that all the complaints were made orally and no written complaint has ever been made in this context. It is observed by the Court that as per attendance sheet Ex. DW1/C, in the month of March, for which the salary has been called for the plaintiff, the plaintiff was either absent or was on half day leave or has appeared after taking short leave and was only present in proper sense on three days which gives an impression to the Court that plaintiff was not interested in doing his job properly. Accordingly, it is clear that the plaintiff has taken four short leaves, three half days leaves and was absent for nine days out of 27 days and he was present for full day only on three days. No cogent reason has been averred in the evidence which gives an indication that non appearance or remaining absent or coming late and taking short leaves was due to the mistake/fault on the part of the defendants. The reason w.r.t the hurting of religious sentiments has not been substantiated and same cannot be treated as reasons for remaining absent, coming late or taking short leaves or half day leaves at regular intervals. So, above said discussion gives an indication that leaving the job was plaintiff's own decision and there seems no apparent and cogent reason which substantiate that he is entitled to any damages as a person cannot take benefit of his own faults.
At this juncture it is pertinent to mention here that though the plaintiff was irregular in attending his office and was present for full day only on three dates, yet the documents Ex. DW1/C which is the attendance record, shows that he has worked for ten days and was absent for nine days and 8 days were official off days/holidays. So, it CS No 41/2013 Danish Inam vs. Bennett Technologies Pvt Ltd. 10 of pages 13 is clear that he is entitled for full salary for three days on which he has appeared for full day and for eight days which were officially off days/holidays. As per record the monthly salary of the plaintiff was Rs. 23,500/ and the record filed by or on behalf of defendant for the attendance is only for 27 days. Out of these 27 days, 8 days were officially off/holidays and the plaintiff was absent for nine days and has taken four short leaves and three half day leaves. As the plaintiff has come to the work for three full days and eight days were officially off/holiday, so the plaintiff is entitled for a salary of 11 days which comes out as Rs. 9,574/. He was on half day leave for three days, so the half salary for 3 days comes out as Rs. 1,305/. He has taken four short leaves and the short leaves are nothing but tantamount to full day if not provided otherwise. As during evidence, it has not been adduced by both the parties that the short leave shall be considered as half day or full day, so the Court is taking cognizance of the general rule that short leave has to be considered as full day, accordingly, he is also entitled for salary for four days also which comes out as Rs. 2,610/. In total he is entitled for a salary of Rs. 13,489/. It was incumbent upon the plaintiff to prove the fact that he is entitled for the salary of month of April 2012 and the damages as claimed by him. After going through the evidence adduced by both the parties and after hearing the evidence, the court found that plaintiff has failed to prove that he is entitled for the salary of month of April 2012 and the damages as claimed by him. Keeping in mind the above mentioned discussion, Court found that as per admitted record the plaintiff is entitled to receive salary for work done by him; which comes out at Rs. 13,489/ and as a substantial period has lapsed and the legitimate sum towards salary CS No 41/2013 Danish Inam vs. Bennett Technologies Pvt Ltd. 11 of pages 13 as per the admitted record of the defendant have not been made to the plaintiff, Court deem it fit to decree the issue no.1 partly in favour of the plaintiff to the tune of Rs. 15,000/. Accordingly, issue no.1 is decided partly in favour of plaintiff and the defendant is directed to make a payment of Rs. 15,000/ to the plaintiff. It is pertinent to mention here that plaintiff has failed to prove that he is entitled for the salary for full month of April 2012 and damages as claimed by him.
As far as the pendentlite and future interest @ 18% per annum on the adjudicated amount, as prayed, is concerned it was incumbent upon the plaintiff to prove that there was a contract or a custom or usage in practice which entitles the plaintiff to receive the interest @ 18 % per annum as pendentlite and future interest. PW1 in his evidence has failed to prove that there was contract or a custom or a usage which entitles the plaintiff to receive pendentlite and future interest @ 18% per annum. Thus, in the present case, taking a judicial notice of the interest granted by the nationalized banks in case of the money lend or advanced in relation to commercial transactions, I consider it appropriate, to grant to the plaintiff the pendentlite and future interest @ 9% per annum. Issue no.2
11. As far as the issue no.2 i.e, Whether the suit of plaintiff is not maintainable as per law? OPD, is concerned, the defendant has not adduced any evidence, in this behalf, so the issue no.1, is not proved and Court is of prima facie view that suit of the plaintiff is maintainable as per law.
CS No 41/2013 Danish Inam vs. Bennett Technologies Pvt Ltd. 12 of pages 13 Issue no.3 and 4
12. As far as issue no.3 and 4 i.e Whether the plaintiff is taking advantage of his own wrong ?OPD and whether the plaintiff is was unauthorisedly absent from his work during the period for which the plaintiff is claiming the salary? OPD, are concerned, it is pertinent to mention here that both the issues have been dealt with while deciding issue no.1 and does not require consideration separately. It has been specifically dealt with and observed that remaining absent at regular intervals from the job and consequently the leaving of the job was not on account of any conduct or act on the part of the defendant and no cogent reason has been averred by the plaintiff for remaining absent from the work at regular intervals.
CONCLUSION
13. Thus, in view of, the above said discussion the suit of the plaintiff is decreed in favour of plaintiff for a sum of Rs.15,000/ ( rupees fifteen thousand only) along with pendentlite and future interest at the rate of 9% per annum.
It is again pertinent to mention here that plaintiff has failed to prove that he is entitled for the salary of month of April 2012 and the sum towards damages and accordingly, the suit is decreed for the proportionate salary for the month of March 2012.
14. Thus, in view of, the above said discussion the present suit is disposed off . Decree sheet be prepared separately accordingly. File be consigned to records room after due compliance.
Pronounced in Open Court ( Vinod Kumar Meena)
on 21st December, 2013 Civil Judge02/NDD/PHC
New Delhi
CS No 41/2013 Danish Inam vs. Bennett Technologies Pvt Ltd. 13 of pages 13