Delhi District Court
Jaishree Gupta vs Reliance Securities Limited on 11 October, 2023
IN THE COURT OF SH. PARVEEN SINGH,
ADDL. DISTRICT JUDGE-11, CENTRAL DISTRICT,
TIS HAZARI COURT, DELHI.
CS DJ No. 610118/2016
CNR No: DLCT010000832012
Jaishree Gupta,
W/o Sh. Arvind Kumar Gupta,
R/o C-403, Vikas Puri,
New Delhi- 110018. ......Plaintiff.
Versus
Reliance Securities Ltd.,
Office at: 1001, Faiz Road,
Karol Bagh,
New Delhi. ..... Defendant.
Date of Filing : 13.09.2012.
Date of Arguments : 10.10.2023.
Date of Judgment : 11.10.2023.
SUIT FOR MANDATORY INJUNCTION AND RECOVERY.
JUDGMENT
1. The present suit has been filed by the plaintiff against the defendant for mandatory injunction and for recovery.
2. Briefly stated the case of the plaintiff is, that plaintiff had joined the defendant company on 23.0.2010 and since then she had worked with defendant company. The last gross salary received by the plaintiff was Rs.1,57,025/- per month. The plaintiff had worked with the defendant CS No. 610118/2016 No. 1 of 23 (Parveen Singh) ADJ-11/Central/THC/Delhi/11.10.2023 company with full sincerity and honesty and thus, on one in the defendant company had any complaint against her. Vide letter dated 10.06.2011, the service of plaintiff was confirmed by the defendant company. She was confirmed as Regional Head and was posted at its office at Karol Bagh w.e.f 01.04.2011. Considering the sincerity and devotion of the plaintiff, on 15.07.2011, defendant had issued appreciation letter to the plaintiff and increased her salary. On 02.11.2011, defendant had transferred the plaintiff from Sales and Distribution to Corporate Sales to the post of Assistant Vice President. In the year 2011, plaintiff became pregnant. In the mid of November 2011, she informed about her pregnancy to the concerned senior and on 12.12.2011, she informed the HR department in writing. Thereafter, her seniors started harassing her for one or the other reason. When the plaintiff requested her senior for grant of maternity leave, he refused to grant it to her. Finding no other way, plaintiff had sent her request to her senior through mail for approval of maternity leave but she had not got any approval. On 04.02.2012, she was informed by the HR department to complete her exit formalities. When plaintiff received a letter dated 24.01.2012 from the defendant, she was shocked to see that the defendant had terminated her service. Thereafter she contacted her seniors and she was asked to join the office. After reaching office, she was forced to sign blank papers and the mobile phone, laptop, phone data card etc. were taken back. It was submitted that the defendant had acted unlawfully because during the course of her employment, plaintiff was denied maternity leave and thus, defendant was liable to pay maternity benefits to the plaintiff. The defendant was also liable to pay salary loss of the plaintiff for the period from 31.01.2012 till the actual date of her reinstatement. Hence, the present CS No. 610118/2016 No. 2 of 23 (Parveen Singh) ADJ-11/Central/THC/Delhi/11.10.2023 suit for mandatory injunction seeking direction to the defendant to reinstate the plaintiff and to pass a money decree for directing the defendant to pay Rs.9,42,150/- salary for the months from February 2012 to July 2012 and pay salary upto the actual date of reinstatement.
3. On being served with the summons, defendant filed its written statement.
4. In the written statement, a preliminary objection was taken that the service of the plaintiff was governed by service conditions detailed in appointment letter dated 23.09.2010. Therefore, any dispute relating to the terms and conditions of the appointment would be subject to the jurisdiction of relevant court of law. The head quarters of defendant is located at Mumbai and thus, this court had no jurisdiction to try the suit. The services of the plaintiff were terminated on 24.01.2012 after issuance of various warnings on account of non performance. A further preliminary objection was taken that requisite court fee had not been paid by the plaintiff. It was further submitted that the performance of the plaintiff in her role as Regional Head was below expectations and therefore, her employment was not confirmed even after completion of her probation period of six months. In order to provide her an opportunity to improve her work, her services were confirmed vide letter dated 10.06.2011. It was further submitted that the plaintiff had failed in her performances as a Regional Head and her performance was below the minimum performance standard. On several occasions, plaintiff was orally warned and various e- mails in this regard were exchanged. Thereafter, plaintiff was transferred to Corporate Sales but there also, her performance did not improve despite warnings. Hence, vide letter dated 24.01.2012, service of plaintiff was CS No. 610118/2016 No. 3 of 23 (Parveen Singh) ADJ-11/Central/THC/Delhi/11.10.2023 terminated on the ground of non performance. It was further submitted that defendant never refused to grant maternity leave to the plaintiff. In fact, vide mail dated 12.12.2011, defendant explained in detail the process of availing maternity leave and requested the plaintiff to provide doctor's certificate confirming her pregnancy. Plaintiff neither replied the mail nor provided the required doctor's certificate.
5. On merits, it was submitted that on several occasions, defendant had expressed its concern regarding the performance of plaintiff. Defendant also informed the plaintiff that she was unable to make any impact as Regional Head at Delhi and therefore, she was put under Performance Improvement Plan (PIP) giving her another opportunity. Plaintiff's performance was showing no improvement. It was further submitted that plaintiff was given a nominal increment of 4.6% of the CTC with a clear understanding that she would be given token bonus if he performance improved. It was further submitted that due to her performance related issues, plaintiff's confirmation was kept pending till June 2011. After evaluating the work performance of plaintiff, she was sent a mail dated 26.11.2011 stating that her performance was unsatisfactory and she was given second chance by way of a change in the role from Regional Head Sales and Distribution to AVP Corporate Sales.
6. In the replication to the written statement, the contents of the written statement are denied and the contents of the plaint are reaffirmed. It was submitted that the office of defendant company was located at Delhi and plaintiff was appointed at Delhi. Plaintiff had received salaries from Delhi office of defendant. Thus, this court had jurisdiction to try and decide the case. Thereafter, from the pleadings of the parties, vide order dated CS No. 610118/2016 No. 4 of 23 (Parveen Singh) ADJ-11/Central/THC/Delhi/11.10.2023 29.01.2013 following issues were framed:-
1. Whether this court has territorial jurisdiction to entertain and try suit? OPP.
2. Whether the suit has been valued correctly for the purpose of court fee and sufficient court fee is affixed on the plaint? OPP
3. Whether the plaintiff was an under performer/ zero performer employee of the defendant leading to her termination from service? OPD
4. Whether the plaintiff is entitled to decree of mandatory injunction of reinstatement in service? OPP
5. Whether the plaintiff is entitled to recover the suit amount from the defendant with interest? OPP.
6. Relief.
7. Thereafter, the plaintiff examined herself as PW1, Sh. Arvind Gupta as PW2 and Sh. Jatin Sharma as PW3. On the other hand, defendant examined one Atul Kumar Sharma as DW1.
8. I have heard learned counsels for the parties and carefully perused the record.
9. My issue wise findings are as under:-ISSUES NO. 1 and 2
1. Whether this court has territorial jurisdiction to entertain and try suit? OPP.
2. Whether the suit has been valued correctly for the purpose of court fee and sufficient court fee is affixed on the plaint? OPP
10. These issues were treated as preliminary issues. Vide order CS No. 610118/2016 No. 5 of 23 (Parveen Singh) ADJ-11/Central/THC/Delhi/11.10.2023 dated 17.01.2014, these issues have already been decided and the said findings have become final.ISSUES NO. 3, 4 & 5
3. Whether the plaintiff was an under performer/ zero performer employee of the defendant leading to her termination from service? OPD
4. Whether the plaintiff is entitled to decree of mandatory injunction of reinstatement in service? OPP
5. Whether the plaintiff is entitled to recover the suit amount from the defendant with interest? OPP.
11. All these issues are being decided together as according to the defendants, services of the plaintiff were terminated due to the fact that she was under performer and as per clause 8(c) of the appointment letter, her services could have been terminated without any notice or any salary in lieu of the notice on the grounds of inefficiency.
12. On the contrary, plaintiff had claimed that her performance was good and she was merely terminated because defendant did not want to grant her maternity benefits and when she verbally informed her seniors about her pregnancy in November 2011 and in December through mail, her services were terminated in order to avoid paying maternity benefits to her and thus, her termination was illegal.
13. To prove issue no. 3, the defendant examined one Sh. Atul Kumar Sharma as DW1. He deposed that initially the plaintiff was appointed on 23.09.2010 and was to be on probation for a period of 06 months i.e. from 23.09.2010 to 01.04.2011. He further deposed that the performance of the plaintiff in her role as Regional Head was below CS No. 610118/2016 No. 6 of 23 (Parveen Singh) ADJ-11/Central/THC/Delhi/11.10.2023 expectations and therefore, the plaintiff's employment was not confirmed even after completion of her probation period. However, in order to provide her with an opportunity to improve on her work related performance, her services were confirmed w.e.f. 01.04.2011 vide letter dated 10.06.2011. He further deposed that the plaintiff was warned on several occasions about her performance much before e-mails in this regard were sent. Thereafter, he detailed various e-mails such as e-mail dated 16.05.2011 (Ex.DW1/3) wherein the plaintiff was intimated about her performance, e-mail dated 17.05.2011 (Ex.DW1/4), e-mail dated 26.05.2011 (Ex.DW1/6), e-mail dated 15.09.2011 (Ex.DW1/7), e-mail dated 26.11.2011 (Ex.DW1/8) and e-
mail dated 21.12.2011 (Ex.DW1/10). He further deposed that vide these E- mails, plaintiff was sufficiently warned regarding her non performance and subsequently, she was transferred from Sales and Distribution to Corporate Sales. There was no improvement in the performance of plaintiff despite several warnings and thus left with no alternative, vide letter dated 24.01.2012 (Ex.DW1/14), services of the plaintiff were terminated on the ground of non performance. Her services were terminated w.e.f. 30.01.2012. He further deposed that the defendant had also informed plaintiff that she was unable to make any impact as a Regional Head at Delhi and therefore, she as put under Performance Improvement Plan giving her another opportunity to make a career with the defendant organization. Defendant sent subsequent mails to the plaintiff regarding her non performance. He further deposed that the plaintiff's performance was showing no improvement in spite of the concerns expressed by the defendant. He further deposed that the plaintiff was given nominal increment of 4.6% of the CTC and a token bonus of 6.25% of the salary CS No. 610118/2016 No. 7 of 23 (Parveen Singh) ADJ-11/Central/THC/Delhi/11.10.2023 was also given. He further deposed that the plaintiff's performance was reviewed and clearly detailed in her performance feedback form and the letter dated 02.06.2011 being relied upon by the plaintiff was standard letter which was given to the plaintiff with a view to encourage better performance in the coming years. He further deposed that vide mail dated 26.11.2011, plaintiff was informed that her performance was unsatisfactory and she was given second chance by change of her role from Regional Head Sales and Distribution to AVP Corporate Sales with reduced targets of Rs.33 lacs upto March 2012. As the plaintiff was not aggrieved on the change of designation from Regional Head Sales and Distribution to AVP Corporate Sales which reflected that she knew her performance was not upto the mark.
14. During his cross examination, he deposed that he had joined the services of defendant in the year 2016 and was working as relationship manager with defendant company. He admitted that he had never worked in Corporate Sales Department and was not working with the defendant at the relevant time. He admitted that he had no personal knowledge of the facts of the case. He deposed that the plaintiff was confirmed on completion of a period of six months and his statement in examination in chief, that her confirmation was kept pending due to performance issues, was false. He denied that during her employment, plaintiff was given letters of appreciation for good performance. He admitted that plaintiff was granted appraisal and her salary was enhanced. He denied that services of plaintiff were not terminated due to poor performance but for other reasons. He further deposed that plaintiff was given 3-4 warnings regarding her poor performance and apart from what had been filed on record, there were no CS No. 610118/2016 No. 8 of 23 (Parveen Singh) ADJ-11/Central/THC/Delhi/11.10.2023 other documents reflecting that her performance was poor. He denied that none of the e-mails sent to the plaintiff by the defendant were related to her poor performance. He denied that in June 2011, defendant had issued a letter of appreciation to the plaintiff for her work. He denied that plaintiff was singly targeted and her services were terminated because she had become pregnant. He denied that mail dated 17.05.2011 only referred to poor collection by the region and it could not be taken as a mail for poor performance of the plaintiff and volunteered, that plaintiff was the head of the region and therefore, the mail was addressed to her reflecting that under her leadership, the team performance was not good. He denied that plaintiff was not heading the region but was only assisting the head of the region who was Mr. Somrajan. He could not tell how many other persons were there who were given poor performance notice or what was the effect thereof. He denied that in November 2011, plaintiff was transferred to CSD because of her good performance and not because of her poor performance. They had not filed any Performance Improvement Plans (PIPs) issued to the plaintiff on court record and volunteered, that the mails contained the details of this when the targets were provided to the plaintiff. He denied that mail dated 24.01.2012 was an afterthought in order to deny the claim of the plaintiff raised vide application 12.12.2011. He was not aware whether plaintiff had orally informed her seniors about her pregnancy in November 2011. He admitted that the machine/ computer, wherefrom mails exhibited in his examination in chief were sent, was not under his control and command. He admitted that his assertion on this account in the certificate u/s 65B of the Evidence Act was not correct. He admitted that before termination of plaintiff services, she was not given CS No. 610118/2016 No. 9 of 23 (Parveen Singh) ADJ-11/Central/THC/Delhi/11.10.2023 any show cause notice.
15. On the other hand, plaintiff appeared as PW1 and deposed that she had joined the services of the defendant pursuant to the appointment letter Ex.PW1/2. She had worked for the defendant company with full sincerity and honesty and the defendant company had no complaints against her. During the course of her employment, she was awarded bonus and appreciation certificate by the defendant. Copy of letter of appreciation and increment was exhibited as Ex.PW1/3. Her services were confirmed w.e.f. 01.04.2011 vide letter dated 10.06.2011 (Ex.PW1/4). On 15.07.2011, defendant again issued a letter of appreciation to her and increased her CTC. Copy of the said letter was Ex.PW1/5. Vide letter dated 02.11.2011, Ex.PW1/6, she was transferred from Sales and Distribution to Corporate Sales as Assistant Vice President, Corporate Sales. In 2011, she became pregnant and in the mid of November 2011, she informed about her pregnancy to the concerned senior employees and informed HR Department on 12.12.2011 in writing for maternity leaves. Copy of her medical record was Ex.PW1/7. She further deposed that thereafter, the seniors of the plaintiff started harassing her for one or the other reason. She further deposed that the doctors had informed her about the due date of her delivery in March 2012 and she requested her senior Sh. Santosh Unnikat to grant her maternity leave but he refused to grant the same. Finding no alternative, she sent her request to her senior Sh. Vikrant Gugnani via e- mail for approval of her maternity leave but she did not get any reply. She further deposed that before her pregnancy, she was a force behind the company but after her pregnancy, she became a liability and she was treated very badly in the defendant company by her seniors. To her shock, she was CS No. 610118/2016 No. 10 of 23 (Parveen Singh) ADJ-11/Central/THC/Delhi/11.10.2023 dismissed from services vide letter dated 24.01.2012, Ex.PW1/9.
16. During her cross examination, she deposed that she did not have the figures of target which was to be achieved by her during her employment as the same were in the custody of defendant. She was able to achieve the said targets within the given duration. She was not given any warning for poor performance and volunteered, that she was rather given appreciation letter by the defendant for performance. The appreciation letter was conveyed to her on E-mail. She did not receive E-mails dated 16.05.2011, 17.05.2011, 26.05.2011, 15.09.2011, 26.11.2011 and 21.12.2011 from the defendant regarding her zero performance and volunteered, that in fact, she had received good performance letter and bonus on 02.06.2011 and was confirmed on her post on 10.06.2011. She had also receive appreciation letter with increment on 15.07.2011. She further deposed that she was transferred from Sales & Distribution Department of the defendant to Corporate Sales on her request and volunteered, that as she perceived better opportunities in that branch. She had verbally informed her superior Mr. Ashok Chandani of her proposal to go on maternity leave from March, 2013, in the month of November, 2012 itself. She had given written information to HR Department in December, 2012. The defendant had neither refused her the maternity leave nor accorded sanction. She admitted that below her rank, there was a team which was working under her. Above her was a senior. She admitted that target was to be achieved by the entire team. In response to a question, whether it was her responsibility to achieve the target, she answered that it was joint responsibility (of the team). She denied that company set the target in consultation with her and admitted that the region wise target was CS No. 610118/2016 No. 11 of 23 (Parveen Singh) ADJ-11/Central/THC/Delhi/11.10.2023 being given. She did not remember whether she had signed the KPI sheet mentioning the target. She was fully informed by the company about the target of the team. Being the head of the team, she was not alone responsible to achieve the target. She denied that team members failed to achieve the target. She did not remember her email ID when she was working with the defendant company, perhaps it was [email protected]. She could not say whether her correct email ID was [email protected]. As far as she recollected, she had not written any email which was Ex.PW1/D-1. She did not remember whether she had received emails Ex.PW1/D-2 and volunteered that this E-mails were on day to day basis. She denied that the appreciation certificate were issued to each and every member of the team in order to motivate the team or that it was not issued to any individual person. She did not know as to how many employees, the certificate of appreciation was issued. She denied that she was transferred from the Sales and Distribution Department to Corporate Sales Department as her performance was not up to the mark as company was willing to give her another opportunity. She denied that she was not confirmed within the period of 6 months as her performance was below par and volunteered, that she had received the confirmation letter in June, which took effect from 01.04.2011. She denied that she had received the confirmation letter only with an understanding that she would improve her performance and volunteered that there was no issue of performance. She had not filed any document to show that she had worked with honesty, sincerity and responsibility and volunteered, that she had filed appreciation letters. She denied that she had wrongly stated in her affidavit that the officer of the defendant had harassed her. She denied that CS No. 610118/2016 No. 12 of 23 (Parveen Singh) ADJ-11/Central/THC/Delhi/11.10.2023 she was granted nominal increments of 4.6 % of CTC and total bonus of 6.25 % of the salary and volunteered, that she was not denying the increase but she was denying the fact that it was nominal. She was asked to explain the basis on which her performance was being assessed while she was in employment of the defendant company and she answered that she was heading a team. The member of the team used to report her. She had no specific individual targets. The performance of each individual in the team was assessed. The individual members of the team were assigned the targets by the company and on the basis of targets achieved the individual as well as her assessment was done. Mr. Vineet used to give her targets and again said, it was Mr. Santosh. She admitted that Mr. Rajiv R. Srivastava and Mr. Sunil Somarajan also used to assign targets. She denied that the performance of her team was her responsibility and volunteered, that it was joint with the team members. She admitted that whenever any employee was under performing, PIP was issued to him. She denied that she was issued PIP by the defendant company. She denied that PIP was issued on 17.05.2011 which was duly replied by her on 23.05.2011. She denied that she had given explanation to the alleged PIP on 26.05.2011. She did not remember whether there was any system of internal ranking of the branches of the defendant company. She denied that Delhi was ranked 14 in the internal ranking, which was the last ranking as there were 14 regions. She denied that these rankings were on the basis of the revenue generated by the branches and Delhi was ranked last as it generated the minimum revenue and volunteered, that their revenue was good. She denied that defendant used to review her performance every 15th days as she was not performing well. She did not remember any figure with respect to targets CS No. 610118/2016 No. 13 of 23 (Parveen Singh) ADJ-11/Central/THC/Delhi/11.10.2023 which were assigned. She could not say whether she had received email Ex.PW1/D3. She denied that she had not informed the defendant company about her pregnancy in November 2011 and volunteered, that she had verbally informed. She admitted that she had not provided any document to the defendant company about her pregnancy. She denied that she was not attending the office in January 2012. She denied that she had accepted the termination and voluntarily handed over laptop, mobile and data card and signed the full and final settlement letter. She denied that the company had not denied maternity leave and maternity benefits to her. She denied that she had not been put to loss of salary or that she was not awarded appreciation certificate or that she was not force behind the company. On being asked, whether she was associated with Global Capital Market and Global Merchants Ltd. and she denied such association. She denied that she was the authorized person of Global Capital Market and Global Merchants and again said, she was authorized persons of Globe Capital Markets Ltd. She denied that she had been gainfully employed with different companies after her services were terminated with the defendant company.
17. I have heard ld. Counsels for parties and perused the record very carefully.
18. Ld. Counsel for plaintiff has contended that the plaintiff has successfully proved on record that during her working with defendant, she was not only given appreciation letters but was also given increments and incentives and these appreciation letters clearly reflect that her performance was marked as good. It is only after she informed about her maternity leave to the defendant that her services were abruptly terminated, which is in clear violation of contract of employment as the same could not have been CS No. 610118/2016 No. 14 of 23 (Parveen Singh) ADJ-11/Central/THC/Delhi/11.10.2023 done without giving a 45 days notice or salary in lieu thereof. It is further contended that defendant had miserably failed to prove that plaintiff was under performer. The witness of the defendant had no knowledge about the facts of the case. DW1 only joined the defendant company in the year 2016, therefore, he had never worked with the plaintiff. It is further contended that to prove that the plaintiff was under performer, DW1 sought to prove E-mails vide documents Ex.DW1/3 to Ex.DW1/13. However, these are merely print outs of E-mails and thus, are secondary piece of evidence and are to be proved under the provisions of section 65B of Evidence Act. DW1 produced certificate u/s 65B of Evidence Act and exhibited it as Ex.DW1/15. However, during his cross examination, DW1 had admitted that the machine/ computer wherefrom the mails were extracted by him was not under his control and that his assertion of the facts in certificate u/s 65B of Evidence Act was not correct. Therefore, there is no certificate u/s 65B of Evidence Act. Thus, the defendant has failed to prove any of the E-mails. It is therefore, contended that the defendant has failed to prove their claim of plaintiff being under performer and her services were unlawfully terminated.
19. Countering it, ld. Counsel for defendant has contended that the defendant had proved on record various e-mails, Ex.DW1/3 to Ex.DW1/13, which clearly reflect that time and again, plaintiff was warned about her poor performance and finally when she could not improve, defendant was left with no option to terminate her services, which was done vide letter dated 24.01.2012. He has further contended that the plaintiff could not have been granted any maternity leaves as she had not applied it through proper channel and she was required to produce her medical documents which she CS No. 610118/2016 No. 15 of 23 (Parveen Singh) ADJ-11/Central/THC/Delhi/11.10.2023 failed to do. Thus, on the ground of maternity leaves, her services were not terminated but her services were terminated due to her poor performance. He has further contended that E-mails of the defendant to the plaintiff have been challenged on the ground of absence of certificate u/s 65B of Evidence Act. However, the same has been filed by DW1 which has been duly proved. He has further contended that during her cross examination, plaintiff was confronted with E-mails Ex.PW1/D1 to Ex.PW1/D3 and therefore, at least those can be read.
20. In counter, it is contended that the plaintiff had denied receiving the E-mails Ex.PW1/D1 to Ex.PW1/D3 and all other mails and therefore, the E-mails are required to be proved as per law.
21. I have considered the rival submissions.
22. The onus to prove that plaintiff was under performer was upon the defendant. DW1 deposed on the lines of WS of the defendant. In order to prove the fact that plaintiff was under performer, he sought to prove various E-mails which were Ex.DW1/3 to Ex.DW1/13.
23. I have gone through the contents of those E-mails. However at this stage, before relying upon any of the contents, the question which needs to be decided is, whether the defendant has proved these E-mails as per Evidence Act.
24. It is now well settled that any electronic evidence, which is of secondary nature, is mandatorily required to be proved under Section 65B of Evidence Act and in absence of any certificate, the electronic evidence, in this case is the print outs of E-mails, cannot be read in evidence. Reliance in this regard has been placed on Anvar P.V v. P.K Basheer & Ors, (2014) 10 SCC 473.
CS No. 610118/2016 No. 16 of 23(Parveen Singh) ADJ-11/Central/THC/Delhi/11.10.2023
25. In the present case, defendant in order to prove these E-mails examined one Sh. Atul Kumar Sharma as DW1.
26. In his examination in chief, he had exhibited the E-mails as Ex.DW1/3 to Ex.DW1/13 and deposed that certificate u/s 65B of Evidence Act was Ex.DW1/15.
27. However during his cross examination, he admitted that the machine/ computer, wherefrom the mails exhibited in his examination in chief were sent, was not under his control and command. He also admitted that his assertion on this account in the certificate u/s 65B of the Evidence Act was not correct.
28. Therefore, from this cross examination of DW1, it is very much clear he was not competent person to issue the certificate u/s 65B of Evidence Act and this certificate is not a valid certificate and does not fulfill the requirement of law.
29. Apart from that, admittedly DW1 is neither the sender nor the receiver of any of the E-mails which he had sought to prove. That being the case, a valid certificate u/s 65B of Evidence Act was all the more necessary to be placed on record and proved but, as the testimony of DW1 reflects that the certificate u/s 65B of Evidence Act has been issued in routine manner by a person who could not have issued it. Thus, I find that the e- mail sought to be proved by DW1 cannot be read in evidence.
30. That being the case, there is no evidence to prove that the plaintiff was under performer or zero performer as claimed by the defendant.
31. I further find that DW1, as per his own admission in his cross CS No. 610118/2016 No. 17 of 23 (Parveen Singh) ADJ-11/Central/THC/Delhi/11.10.2023 examination, had joined the services of the defendant in 2016. Services of the plaintiff had been terminated in January 2012. Therefore, DW1 was not working with the defendant at the time when the services of the plaintiff were terminated and thus, he could not have been in a position to comment about the performance of the plaintiff and could not be the witness of the personal knowledge of the case.
32. Even otherwise, DW1 was a relationship manager who had never worked in Corporate Sales Department and he was having no personal knowledge of the facts of the case as admitted by him. Therefore, he could not have commented on the working of the department where the plaintiff was working or the performance of the plaintiff.
33. On the contrary, plaintiff has proved on record a letter dated 02.06.2011 which states that for the year 2010-11, she was rated as good performer and she was awarded PLI (Performance Linked Incentive). She has also proved a letter dated 10.06.2011, which is Ex.PW1/4, whereby her services were confirmed from 01.04.2011. She also proved a letter dated 15.07.2011, Ex.PW1/5, which again states that her performance for the year 2011 was rated as good and her fixed CTD was revised from Rs.18 lacs per annum to Rs.18,84,300/- per annum. She was cross examined and suggested that these were routine letters issued to the employees and, therefore, on the basis of these letters, she could not establish that she was rated as good performer. She denied this suggestion.
34. From the perusal of these letters, i.e. Ex.PW1/3 and Ex.PW1/5, I find that the first paragraph may be a routine paragraph sent to all the employees whose work was being appreciated and even then I find that it could only be sent to the employees whose work was appreciated and not to CS No. 610118/2016 No. 18 of 23 (Parveen Singh) ADJ-11/Central/THC/Delhi/11.10.2023 those whose work was not appreciated. However, for the second paragraph in Ex.PW1/3 and third paragraph in Ex.PW1/5, where it was written in bold that the recipient of these letters, in this case the plaintiff, was rated as good performer, it has to be taken to be addressed to the plaintiff alone because each employee's performance has to be evaluated and that is when a good performer remarks are to be given to that employee.
35. With regard to the contention that the plaintiff was issued Performance Improvement Plans (PIPs), I find that no PIP was placed or proved by the defendant on record. On the contrary, DW1 had admitted that the defendant had not filed any PIP issued to the plaintiff on record.
36. The defendant has also claimed that because of the poor performance, plaintiff was not confirmed. However, the letter dated 10.06.2011 (Ex.PW1/4) proves that the plaintiff was confirmed w.e.f. 01.04.2011 and DW1 in his cross examination stated that plaintiff was confirmed on completion of probation period of six months and that his statement in his examination in chief, that her confirmation was kept pending due to performance issues, was false. Therefore, this part of the testimony of DW1 also reflects that the claim of the defendant that due to her poor performance, the confirmation of plaintiff was kept pending, is not to be accepted.
37. Defendant has also claimed in written statement that plaintiff was transferred from Sales and Distribution to Corporate Sales because her performance had not improved and it was done to give her second chance. However, in the examination in chief, no such facts were stated by DW1.
38. However, during his cross examination, DW1 denied that in November 2011, plaintiff was transferred to Corporate Sales Department CS No. 610118/2016 No. 19 of 23 (Parveen Singh) ADJ-11/Central/THC/Delhi/11.10.2023 because of her good performance and no because of her poor performance. The letter of transfer, Ex.PW1/6, proved by the plaintiff reflects that plaintiff was transferred to Corporate Sales Department on her request and it does not state that she was transferred in order to give her an opportunity to improve her performance.
39. In view of the above discussion, I find that by preponderance of probabilities, the defendant has failed to prove that plaintiff was under
performer or zero performer. Accordingly issue no. 3 is decided against the defendant.
40. The appointment letter, Ex.PW1/2, which was accepted by the plaintiff when she joined the service became a contract of service. Thus, her services could only be terminated as per that contract. As the defendant has failed to prove that plaintiff was a zero performer or under performer, her services could not have been terminated under clause 8(c) and if the defendant intended to terminate her services, the defendant had to comply with clause 8(d) and give her 45 days prior notice or salary in lieu thereof, which had not been done in this case. Thus, I have to hold that the services of the plaintiff were terminated in violation of the contract of employment.
41. Plaintiff has raised a claim that her services were terminated because she became pregnant and defendant intended to avoid giving her maternity benefits.
42. It is not now disputed that when the plaintiff was terminated, she was pregnant. She claimed that in the mid of November 2011, she had informed her superior officer at the defendant company about her proposal to proceed on maternity leave. As per her cross examination, plaintiff had deposed that in the month of November 2012, she had verbally informed CS No. 610118/2016 No. 20 of 23 (Parveen Singh) ADJ-11/Central/THC/Delhi/11.10.2023 her superior Sh. Ashok Chandani of her proposal to go on maternity leave from March 2013 and the HR department was informed in writing in December 2012. She denied that she had not informed the defendant company about her pregnancy in November 2011 and volunteered, that she had verbally informed.
43. On the contrary, DW1 deposed that he was not aware, whether plaintiff had orally informed of her senior about her pregnancy in November 2011.
44. However, from the record what has been proved is, that plaintiff was confirmed in services, she was given performance linked incentives, she got increment in her salary and only when she became pregnant and informed in writing to HR department in December, she came to be fired from services within 1 month of the written information being given. It is also to be seen that as per the defendant the entire team of the plaintiff was under performing. If that be the case, defendant could have shown that plaintiff alone was not singled out and there were others who had met with same fate. Defendant failed to do so and DW1, during his cross examination deposed that he was not aware how many other persons were given poor performance notice and what was the effect thereof.
45. Thus, in the overall facts of the case, it is probable that defendant in order to avoid the grant the maternity benefits to the plaintiff, fired her from the services before she could formally apply and avail the maternity benefits.
46. Be that as it may, even otherwise it stands proved on record that defendant has failed to prove inefficiency on the part of the plaintiff and thus, could not have dismissed her without giving 45 days prior notice CS No. 610118/2016 No. 21 of 23 (Parveen Singh) ADJ-11/Central/THC/Delhi/11.10.2023 or salary in lieu thereof.
47. Considering these facts and circumstances, I have to hold that defendant committed a breach of contract of service.
48. Plaintiff has prayed for a mandatory injunction of reinstatement of her services.
49. It is correct that the court has found that defendant had terminated the services of the plaintiff in breach of the contract of employment, however, it is now well settled that contracts of employment should not be specifically enforced and if such a breach is found, proper cause will be to award damages. I accordingly find that had the plaintiff been not terminated from services in breach of contract of employment, she would have been entitled to maternity leave, which should be awarded to her.
50. I accordingly find that defendant is liable to pay 45 days of salary in lieu of notice and further 06 months salary as maternity benefits. Issue no. 4 is accordingly disposed of.
51. Plaintiff has claimed Rs.9,42,150/- as salary of 06 months i.e. for the maternity leave period. However, this is what was her cost to company which included her perks and other benefits which may or may not be payable to her during maternity. Plaintiff has not filed any salary slip wherefrom her actual salary sans perks and other benefits could be calculated.
52. I accordingly find that as per her last drawn salary, plaintiff is entitled to a total salary of 07 months and 15 days as damages for termination of her services in breach of contract of service.
CS No. 610118/2016 No. 22 of 23(Parveen Singh) ADJ-11/Central/THC/Delhi/11.10.2023
53. I further find that as the legal dues of the plaintiff had been wrongly withheld by the defendant due to her illegal termination of services, plaintiff is entitled to interest. The defendant is ordered to pay interest @ 7% per annum upon the amount so awarded from the date of accrual till the date of realization. Issue no. 5 is accordingly disposed. RELIEF
54. In view of my above findings, the suit of the plaintiff is decreed. It is ordered that defendant shall pay the plaintiff a salary for the period of 07 months 15 days as per her last drawn salary and shall also pay interest thereupon @ 7% per annum from the date of accrual till the date of realization. Costs of the suit are also awarded to the plaintiff. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court (PARVEEN SINGH) on 11.10.2023. ADJ-11, Central District, (This judgment contains 23 pages and Tis Hazari Court, Delhi each page bears my signature.) CS No. 610118/2016 No. 23 of 23 (Parveen Singh) ADJ-11/Central/THC/Delhi/11.10.2023