Delhi District Court
C.S. No 117/13 vs Mind Shaper Technologies Pvt. Ltd on 31 January, 2015
IN THE COURT OF MS. JASJEET KAUR
CIVIL JUDGEI / NEW DELHI
C.S. No 117/13
Unique ID No.
Saurabh Mangal
S/o Sunil Kumar Mangal
R/o G26, IInd Floor
South CityI, Gurgaon 122002 ... Plaintiff
Versus
Mind Shaper Technologies Pvt. Ltd.
Through its Director
Having its registered office at :
A1, IInd Floor, Naraina Industrial Area
PhaseI City, New Delhi110028 ... Defendant
Date of Institution: 14.05.2013
Date of Reserving Judgement: 30.01.2015
Date of Judgment: 31.01.2015
SUIT FOR RECOVERY OF RS. 1,40,000/ (RUPEES ONE LAC AND FORTY
THOUSAND ONLY) WITH INTEREST
JUDGEMENT
1. Brief facts of the case from the perspective of the plaintiff as discernible from the plaint are that the plaintiff was an employee of the defendant company having joined duties of the defendant company as a Product Manager on January 16, 2012 at a monthly remuneration of Rs. 75,000/ and entitlement to reimbursement of mobile phone bills, conveyance charges and Internet data usage charges etc. It is the case of the plaintiff that the plaintiff had diligently discharged his duties as an employee of the defendant company and was paid his monthly salary between 5 th to 10th date of each calender month before he had tendered his resignation from the post of Product Manager on 13.08.2012 due to personal reasons. It is further the case CS No.117/13 1/32 of the plaintiff that his resignation was accepted and he was relieved from duties vide relieving letter dated 13.08.2012 issued by the defendant company wherein it was mentioned that the performance of the employee (the plaintiff) had been satisfactory during his employment with the defendant company and he had been relieved from the services of the defendant company with effect from August 13, 2012.
2. It is the alleged case of the plaintiff that upon receipt of his resignation on 13.08.2012, the Human Resources Department of the defendant company had assured the plaintiff that his salary for the month of July 2012 and for the period of 13 working days in the month of August 2013 commencing from 01.08.2012 to 13.08.2012 shall be subsequently released to him (to the plaintiff) vide a cheque for full and final settlement instead of being credited to the salary account of the plaintiff. However, the salary of the plaintiff was not released to him till September 2012 and therefore, he had contacted the defendant company for release of his dues but to no avail.
3. It is further the case of the plaintiff that on account of failure of the defendant company to pay his salary and other outstanding dues, he had issued a legal notice dated 01.04.2013 to the defendant company whereby he had called upon the defendant company to pay his salary and other legitimate dues. However, no action was taken by the defendant company to release the salary of the plaintiff for the duties performed by the plaintiff between 01.07.2012 to 13.08.2012 as an employee of the defendant company. Consequent upon failure of the defendant company to release his outstanding dues, the plaintiff was compelled to institute the present suit for recovery of Rs. 1,40,000/ from defendant company comprising of a sum of Rs. 1,07,500/ towards salary for the period between 01.07.2012 to 13.08.2012, arrears of salary for preceding months, that is, for the period between January 2012 to June 2012 running into Rs. 14,000/, outstanding claim for reimbursement of Airtel mobile phone bill and Internet data usage bills amounting to Rs. 7500/, CS No.117/13 2/32 outstanding claim for reimbursement of a single travel bill in the sum of Rs. 750/ and interest on the total outstanding dues of Rs.1,29,750/ calculated at 18% per annum amounting to Rs. 11650/.
4. On being served with the summons of the Court the defendant had appeared and had filed a written statement wherein it was claimed that the plaintiff had not approached this Court with clean hands and had deliberately suppressed certain material facts from this Court for raising a false claim of Rs. 1,40,000/ against the defendant company. It was claimed in the written statement that although the gross cost to company of employing the plaintiff to the post of Product Manager was Rs. 75,000/ per month, however, the net take home salary of the plaintiff was only Rs. 63,664/. It was further submitted on behalf of the defendant company that the plaintiff had failed to discharge his duties diligently and was never appreciated for his performance. It was submitted in the written statement that the plaintiff had failed to improve his performance despite being informed about deficiencies in his performance and being granted several opportunities to improve his performance. It has been alleged in the written statement that the plaintiff had continued to discharge his duties with a casual attitude towards work and attendance. It is the case of the defendant company that plaintiff used to report late to office on several occasions and used to frequently leave office premises during work hours for doing personal work and due to his inability to perform according to the expected standards, the plaintiff had earlier submitted his resignation on 30.05.2012 and thereafter, at the request of the plaintiff, the defendant company had given another chance to the plaintiff to perform at a new post of Marketing Communication Associate. However, the plaintiff had failed to perform upto expected standard even in his new role as a Marketing Communication Associate and had reported for duty only on 19 working days in the month of July, 2012. Moreover, it was also alleged in the written statement that out of the said 19 days on which the plaintiff had reported for duty, the CS No.117/13 3/32 plaintiff had reported late to office on 10 days. It was further submitted in the written statement that in August 2012 plaintiff had reported to duty only on 08 working days out of which he had reported late to office on 06 days.
5. It was further claimed in the written statement that plaintiff had not submitted any resignation letter dated 13.08.2012 to any department of the defendant company including the Human Resources Department and in fact the plaintiff had suddenly stopped reporting to duty after 13.08.2012 without giving any intimation or notice to the defendant company and in this context a warning letter seeking explanation in respect of unauthorized absence from duties was also issued to the plaintiff on 20.08.2012 by the concerned officials of the defendant company. It is the case of the defendant that after being given repeated warnings by the defendant company, the plaintiff had visited the office of the defendant company on 12.09.2012 for returning the equipment/ assets of the defendant company including one laptop, a laptop charger, a laptop bag and two tablets. It was claimed in the written statement that the plaintiff was not formally discharged from all his responsibilities and no clearance certificate were issued to him by the concerned department of the defendant company also. The defendant company had claimed in the written statement that it had not issued the alleged experience certificate and relieving letter dated 13.08.2012 relied upon by the plaintiff in his favour. It was also claimed in the written statement that since the plaintiff had absconded from his duties w.e.f. 14.08.2012, therefore, there was no reason for issuance of any experience certificate in favour of the plaintiff and the plaintiff had in connivance with the then Incharge/ Head of Human Resources Department got issued a relieving letter as well as an experience certificate in his favour on the back date of August 13, 2012 without the knowledge and consent of the management of the defendant company although the plaintiff was not formally relieved from duties on the said date and on the contrary, the plaintiff had failed report to office despite repeated requests made by the officials of the defendant company and CS No.117/13 4/32 had merely visited the office twice on 30.08.2012 and 12.09.2012 for returning the assets or equipments belonging to the defendant company, which were lying in his possession.
6. It was also claimed in the written statement that the defendant company had not assured the plaintiff that the salary of the plaintiff for the period between 01.07.2012 to 13.08.2012 would be released to him through a cheque for full and final settlement because the plaintiff had simply stopped reporting to duties and had not tendered any formal resignation from his employment with the defendant company.
7. In the replication filed by the plaintiff to the written statement of the defendant, the allegations made in the written statement were denied and the facts narrated in the plaint were reiterated. On the basis of pleadings of parties, following issues were framed :
1. Whether the plaintiff has not paid proper court fee? OPD.
2. Whether the plaintiff is entitled to recovery of Rs.1,40,000/ from the defendant? If yes, whether the plaintiff is entitled to interest? If so, at what rate and for what period? OPP.
3. Relief.
8. After the framing of issues, an opportunity was given to the plaintiff and the defendant to prove their respective versions of the case by leading evidence in support of the same. Plaintiff Saurabh Mangal examined himself as PW1 in support of his case. A brief account of his testimony is reproduced below :
9. PW1 Saurabh Mangal deposed by way of affidavit Ex.PW1/A wherein he had reiterated the contents narrated in the plaint. PW1 had relied upon following documents in support of his case including: i. True copy of letter dated 28.12.2011 containing offer of appointment given to the plaintiff by the defendant company as well as true copy of appointment letter of the plaintiff dated 16.1.2012 collectively Ex.PW1/1. ii.True copies of statement of account of HDFC Bank account of the plaintiff bearing no. 04401050050375 Mark PW1/2 in respect of proof of credit of CS No.117/13 5/32 monthly salaries into the account of the plaintiff from the account of the defendant company.
iii. Original relieving letter dated 13.08.2012 purportedly issued by the defendant company in respect of discharge from service of plaintiff upon submission of resignation by the plaintiff Ex.PW1/3.
iv. Original experience certificate dated 13.08.2012 Ex.PW1/4 purportedly issued by the defendant company in favour of the plaintiff. v. True copies of telephone bills and internet data usage reimbursement policies of the defendant company Mark PW1/5, mobile reimbursement forms of the plaintiff for the period between January 2012 to June 2012 purportedly approved by the defendant company collectively Ex.PW1/6 (running into two pages) and remaining mobile bills issued in the name of plaintiff for the period between June 2012 to September 2012 (running into 17 pages) collectively Mark PW1/7.
vi.Local conveyance expenses claim statement of the plaintiff Mark PW1/8. vii.Legal notice Ex.PW1/9 whereby the plaintiff had called upon the defendant company to pay his salary for the period between 01.07.2012 to 13.08.2012 and other outstanding dues amounting to a total sum of Rs. 1,40,000/.
viii.Proof of delivery of legal notice Ex.PW1/10.
10. In his cross examination by Sh. Bhim Sen Jain, learned counsel for the defendant, PW1 admitted that the email address mentioned in emails dated 28.3.2012 and 12.7.2012 was of his official email id. He denied the suggestion that in view of emails dated 28.3.2012 and 12.7.2012, his performance was not satisfactory and was below standards as there were excessive late marks and short leaves against his name. He expressed his inability to produce any certificate of appreciation given to him by the defendant company prior to his resignation. He denied the suggestion that on 24.03.2012, he had given a very poor show to an international client of the defendant company. He further denied the suggestion that he used to regularly report late to office. He expressed his inability to recall the exact office timings for all employees of the defendant company but stated that they were perhaps from 9:30am to 5pm. He expressed his inability to recall whether at any point of time during his tenure with the defendant company, he was prescribed to undergo a training process and was directed to attend demo meetings for 45 days by the CS No.117/13 6/32 defendant company or not. He stated that the defendant company had never communicated any performance improvement plan to him. He admitted that his salary included a sum of Rs.8333/ as quarterly performance incentive. He admitted that the performance incentive of Rs.8333/ was never paid to him during the tenure of his employment with the defendant company. He admitted that he had never sent any communication or letter for claiming his dues or arrears of performance incentive due from the defendant company. He admitted that he had not given one month's advance notice in writing to the defendant company before tendering his resignation. He, however, claimed that he had given one month's oral notice to Ms. Rita Kaul, Manager of his company about his intention to resign between 10th to 15th July 2012 and had thereafter submitted a written resignation on 13.08.2012. He expressed his inability to tell whether Ms. Rita Kaul was in the marketing department of the defendant company or not but claimed that she was his reporting manager. He denied the suggestion that at the time of submitting his alleged resignation, he was working under Ms. Shikha Girgla, Sr. Manager and was supposed to report only to her. He further denied the suggestion that the mandatory 30 days advance notice before tendering his resignation was supposed to be served by him only to Shikha Girgla. He stated that he had tendered his written resignation on 13.08.2012 and the same had been placed on record by him. Immediately, thereafter, he again said that his resignation had not been placed on the Court record. He also admitted that he did not have any copy of his alleged resignation dated 13.08.2012. He admitted that he had initially resigned from the defendant company in May 2012 as the atmosphere of the company was not good, but on the last day of his service in the company, that is, on 30.06.2012, he was rehired by the defendant company w.e.f. 01.07.2012 and his resignation was revoked. However, since the atmosphere of the defendant company was still not favourable even after he was rehired, therefore, he had again submitted a written resignation on 13.08.2012. He denied the suggestion CS No.117/13 7/32 that after 13.08.2012, he had suddenly stopped reporting to work at the office of the defendant company without giving any intimation to his employer and the same was an act of absconding from duty. He admitted that as per the policy of the defendant company after termination of services of any employee, the said employee is immediately required to return the laptop and other equipments of the defendant company. He further admitted that he had not returned the laptop and other equipments of his company till 12.09.2012. He denied the suggestion that the defendant company had never issued in his favour any relieving letter or experience certificate dated 13.08.2012. He further denied the suggestion that the relieving letter of the defendant company was in the standard form at and the same does not reflect true merits of any employee. He admitted that he had not written any letter to the defendant company prior to issuing legal notice dated 01.04.2013 in respect of nonclearance of any of his outstanding dues including reimbursement of his mobile bills and travel bills. He expressed his inability to produce any written communication from the defendant company stating therein that his salary dues would be cleared through the mode of cheque.
11. Learned counsel for the plaintiff had reexamined the plaintiff in respect of certain contradictions that had come on record in the cross examination of the plaintiff recorded as PW1. In his reexamination by learned counsel for the plaintiff, PW1 Saurabh Mangal admitted that he had never received any emails dated 28.03.2012 and 12.07.2012. He further admitted that his performance had been appreciated verbally by his senior officers on several occasions. He deposed that as per his knowledge, there was no mandatory provision under the employment termination clause requiring him to give a written advance notice before resigning from service. He stated that he had submitted original reimbursement forms and bills in respect of which he had claimed reimbursements from the defendant company and he was only in possession of photocopies of the same.
CS No.117/13 8/3212. In his further cross examination by Sh. Prasouk Jain, learned defence counsel, PW1 denied the suggestion that his seniors had never appreciated him verbally or in writing. He deposed that Ms. Rita Kaul, Vice President of his company and Ms. Shikha Girgla, Marketing Manager of the defendant company had verbally appreciated him during the course of his employment. He stated that he had verbally resigned from the employment of the defendant company in the mid of July 2012 and had submitted a written resignation to the Human Resource Department (hereinafter referred to as HR) of the defendant company on 13.08.2012. He deposed that he had informed Mr. Surender Kumar of HR department of the defendant company about his intention to resign on 13.08.2012.
13. After the plaintiff closed his evidence, an opportunity was given to the defendant to prove the defence version of the present suit.
14. The defendant company examined two witnesses in support of its case, namely, DW1 Surender Kumar and DW 2 Ashwani Pande. A brief account of the depositions made by the defence witnesses is reproduced below.
15. DW1 Surender Kumar deposed by way of affidavit Ex.DW1/A wherein he had reiterated the facts mentioned in the written statement. He relied upon following documents in support of averments made in his affidavit :
(i) Email dated 28.3.2012 Ex.DW1/1 sent by HR department of the defendant company to the plaintiff informing the plaintiff about a performance improvement plan devised for the plaintiff by the defendant company.
(ii) Email dated 12.07.2012 Ex.DW1/2 sent by DW1 to the plaintiff informing the plaintiff about deduction of his salary on account of late marks and short leaves in the attendance record of the plaintiff.
(iii) Email dated 23.07.2012 Ex.DW1/3 sent by DW1 to Ms. Shikha Girgla, Manager of the plaintiff, informing her about the disciplinary action, which could be taken against the plaintiff for reporting late to duties.
(iv) True copy of the employees attendance register of the defendant company for the month of July 2012 Ex.DW1/4.
(v) True copy of employee's attendance register of the defendant company for the month of August 2012 Ex.DW1/5.
CS No.117/13 9/32(vi) Email dated 20.08.2012 Ex.DW1/6 sent by DW1 to the plaintiff whereby DW1 had informed the plaintiff that the failure of plaintiff to report to duties with effect from 14.08.2012 without giving any intimation to the defendant company was an act of absconding from duty.
(vii) True copy of board resolution passed by the Board of Directors of the defendant company authorizing one Manoj Kumar Singh to represent defendant company in the present case Ex.DW1/7.
(viii) True copy of subsequent board resolution passed by the Board of Directors of the defendant company authorizing DW1 Surender Kumar to represent the defendant company in the present case Ex.DW1/8.
(ix) Email dated 13.03.2012 Ex.DW1/9 whereby the HR department of the defendant company had sent the attendance policy of the defendant company to the plaintiff.
(x) The attendance policy of the defendant company Ex.DW1/10.
(xi) Leave policy of the defendant company Ex.DW1/11.
(xii) Form 16 of the plaintiff for the assessment year 201213 Ex.DW1/12.
(xiii) Form 16 of the plaintiff for the assessment year 201314 Ex.DW1/13.
(xiv) Affidavit in respect of authenticity of emails and computer generated documents relied upon by DW1 furnished under the provisions of Section 65B of the Indian Evidence Act Ex.DW1/14.
(xv) True copy of email dated 30.05.2012 whereby plaintiff had tendered his resignation to Ms. Rita Kaul his reporting manager Ex.D1 (document admitted by the plaintiff).
(xvi) True copy of email dated 30.05.2012 sent by Ms.Rita Kaul to the plaintiff for acknowledging the receipt of his resignation Ex.D2 (document admitted by the plaintiff).
(xvii) True copy of email dated 10.07.2012 sent by the plaintiff to Ms. Preeti Thapa, Associate Vice President in the HR department of the defendant company Ex.D3 whereby plaintiff had thanked Ms. Preeti Thapa for revoking his resignation and for rehiring him in the defendant company (document admitted by the plaintiff).
(xviii) True copy of email dated 09.07.2012 sent by Ms. Preeti Thapa to the plaintiff informing him about the defendant company's decision to rehire him Ex.D4 (document admitted by the plaintiff).
(xix) True copy of undertaking dated 12.09.2012 given by the plaintiff on 13.09.2012 Ex.D5 whereby the plaintiff had undertaken to bear the cost of getting repaired damaged equipment of the defendant company, that is, front enter key of the laptop of defendant company (document admitted by the plaintiff).
(xx) True copy of email dated 20.08.2012 whereby DW1 had informed the plaintiff that his failure to report to office without giving any intimation to his employer was an act of absconding from duty Ex.D6 (document admitted by CS No.117/13 10/32 the plaintiff).
16. In his crossexamination by Sh. Aditya Jain, learned counsel for the plaintiff, DW1 admitted that the plaintiff's official email id was active even after the plaintiff had tendered his resignation. He denied the suggestion that as per the job profile of plaintiff mentioned in Ex.D4, plaintiff was supposed to travel and make phone calls from his personal cell phone and was also supposed to use personal Internet facility for official research work. DW1 expressed his inability to identify the signatures of the issuing authority on the relieving letter and experience certificate Ex.PW1/3 and Ex.PW1/4 respectively. However, he admitted that his company had neither lodged any FIR nor made any complaint to police in respect of fabrication of relieving letter Ex.PW1/3 and experience certificate Ex.PW1/4. He denied the suggestion that plaintiff was entitled to reimbursement of his personal travel bills, personal internet bills and personal mobile bills. He further denied the suggestion that reimbursement, if any were not done on a monthly basis. He also denied the suggestions that he had not played an active role in persuading the HR department as well as the management of the defendant company to give another chance to the plaintiff or that the plaintiff was not shifted under Ms. Shikha Girgla as a reporting manager. He further denied the suggestion that the plaintiff was not in habit of going out of office for long periods to have breakfast during duty hours. He denied the suggestion that the defendant company had received alleged legal notice dated 01.04.2013. He also denied the suggestions that if an employee served the defendant company for seven to eight hours and fifteen minutes on a working day, then no short leave would be marked against his name or that only two short leaves were allowed to each employee in a month with the approval of his or her Line Manager. He further denied the suggestions that if an employee spent four to seven hours in office in a day, then the same was not supposed to be counted as half pay day and that if an employee spent less than four hours in office on a working day, then his attendance was supposed CS No.117/13 11/32 to be marked as a full day leave. DW1 also denied the suggestions that the attendance policy was not circulated amongst the employees of the defendant company vide email dated 12.03.2012 and that the receipt of the same was also not acknowledged by the plaintiff in email dated 13.03.2012. He further denied the suggestion that the copy of attendance registers Ex.DW1/4 and Ex.DW1/5 were self generated documents of the defendant company and the same did not reflect the true position of attendance of the plaintiff. He expressed his inability to tell whether document Mark PW1/5 was the telephone and internet data usage reimbursement policy of the defendant company or not. He further expressed his inability to tell whether Ex.PW1/6 was the mobile bill reimbursement form of the defendant company or not and whether the same contained signatures of the Line Manager at point A or not. In his further cross examination recorded on 20.01.2015, DW1 produced the computer generated print out of email dated 12.03.2012 whereby the attendance policy and leave policy of the defendant company were sent to the plaintiff. He also produced the attendance policy and leave policy of the defendant company Ex.DW1/10 and Ex.DW1/11 respectively, form 16 of the plaintiff for the assessment years 2012 2013 Ex.DW1/12, form 16 of the plaintiff for the assessment years 2013 2014 Ex.DW1/13 as well as an affidavit under Section 65B of Indian Evidence Act in respect of authenticity of above mentioned computer generated documents Ex.DW1/4. He deposed that the defendant company did not have any electronic system for recording of timings of entry and exist of employees of the defendant company at the time when plaintiff was one of the employees of the defendant company. He clarified that the attendance of the employees was manually recorded in the attendance registers maintained by the defendant company and the email dated 12.07.2012 Ex.DW1/2 was sent to the plaintiff on the basis of entries in the attendance register whereby it was found that plaintiff was reporting late to office on regular basis and vide the said email Ex.DW1/2, plaintiff as well as CS No.117/13 12/32 his Manager had been informed that plaintiff's salary would be deducted for late reporting to office, as the same had been viewed as deficiency in performance of the plaintiff.
17. DW2 Ashwani Pande deposed by way of affidavit Ex.DW2/A wherein he had claimed that he had been working as a security guard in the defendant company for about 3 ½ years (three and a half) and one of his duties was to make sure that the people entering and exiting the office of the defendant company made entries in the registers maintained by him. He stated that he used to maintain two separate registers including one register maintained for recording entry and exit of the employees, which used to remain in his possession till about 9:15am and was thereafter handed over by him to the HR department of the defendant company. He stated that the said register was generally returned back to him at about 5:15pm. He deposed that he used to maintain another register for keeping records of entry and exit of visitors of the defendant company, which used to remain in his custody from the time of opening of the office till the closing time. He further deposed that the plaintiff used to go out of office regularly for eating as well as for doing other personal works. He placed on record a true copy of visitor register Ex.DW2/1. He further deposed that the plaintiff had visited the office of the defendant company on 30.08.2012 and 13.09.2012 after failing to report to duty with effect from 13.08.2012.
18. In his crossexamination by Sh. Aditya Jain, learned counsel for the plaintiff, DW2 deposed that the employees who used to report to office by 9:15am on a working day, generally used to sign the attendance registers in his presence and thereafter, he used to personally go to the Human Resource Department for handing over attendance registers of the employees to the said department. He stated that the employees reporting to duty after 9:15am and before 5:15pm were not supposed to sign the attendance register in his presence. He further deposed that any employee who used to leave office CS No.117/13 13/32 during duty hours, was supposed to make an entry in the employee outin register maintained by him in respect of his departure duly containing therein the time and reason for leaving the office premises during duty hours as well as the time of returning back to office. He produced the original employee outin register containing entries for the period between January 2012 to August 2013 Ex.DW2/2. He denied the suggestion that attendance register produced by him was a fabricated document.
19. After the defendant company had closed its evidence, final arguments were heard on 30.01.2015 from Sh. Aditya Jain, learned counsel for the plaintiff and Sh. Prasouk Jain, learned counsel for the defendant.
20. Learned counsel for the plaintiff has argued that plaintiff has proved his case by examining himself as PW1 in his evidence and also by placing on record documents Ex.PW1/1 to Ex.PW1/10 whereby plaintiff has proved that the plaintiff had been appointed to the post of Product Manager in the defendant company on 16.01.2012 vide appointment letter Ex.PW1/1 and was drawing salary amounting to Rs.75,000/ per month as reflected from his appointment letter Ex.PW1/1. Learned counsel for the plaintiff has further submitted that plaintiff has also proved that after serving an oral notice upon his Line Manager Ms. Rita Kaul, the plaintiff had resigned from the service of the defendant company w.e.f. 13.08.2012 and had been relieved from the service of the defendant company vide relieving letter Ex.PW1/3. Besides, it has been argued on behalf of the plaintiff that the defendant company had also issued an experience certificate Ex.PW1/4 in favour of the plaintiff whereby the defendant company had certified that the performance of the plaintiff had been satisfactory during his employment with the defendant company. Therefore, the defendant company had no occasion to withhold the salary of the plaintiff for the period between 01.07.2012 to 13.08.2012 on frivolous ground of failure of the plaintiff to serve advance notice of one month upon the defendant company prior to tendering his resignation.
CS No.117/13 14/3221. Learned counsel for the plaintiff has further argued that since the defendant company had certified vide experience certificate Ex.PW1/4 that the performance of the plaintiff was satisfactory, therefore, the defendant company also had no right to withhold the performance incentive amounting to Rs.8333/ payable to the plaintiff for the quarter of July 2012 to September 2012, that is, the period immediately preceding the submission of his resignation by the plaintiff. Hence, learned counsel for the plaintiff has argued that the plaintiff is entitled to the recovery of the suit amount comprising of salary for the period between 01.07.2012 to 13.08.2012 amounting to Rs.1,07,500/, arrears of salary of previous months amounting to Rs.14,000/, reimbursement of approved Airtel mobile bills and Internet data usage bills of the plaintiff amounting to Rs.6,000/ for the period between January to June 2012, reimbursement of Airtel mobile bills and Internet data usage bills of the plaintiff amounting to Rs.1500/ for the period between June to August 2012, a single travel bill in the sum of Rs.750/ as well as interest on the total dues of Rs.1,29,250/ amounting to Rs.11,650/ when calculated @ 18% per annum. Learned counsel for the plaintiff has further submitted that the through the documents Ex.PW1/1 to Ex.PW1/10, plaintiff has successfully proved that he is entitled to recover the suit amount of Rs.1,40,000/ from the defendant company.
22. Per contra, learned counsel for the defendant has argued that the plaintiff is not entitled to recovery of the suit amount from the defendant company as the plaintiff had failed to serve any written advance notice of one month prior to resigning from the employment of the defendant company and therefore, the salary of the plaintiff for a period of one month is liable to be forfeited in lieu of service of one month's advance notice prior to tendering of resignation by the plaintiff. Besides, learned counsel for the defendant company has argued that the experience certificate and relieving letter Ex.PW1/4 and Ex.PW1/3 respectively have not been issued by the defendant company and the same have been obtained by the plaintiff from a former CS No.117/13 15/32 employee of the defendant company through manipulation. In these circumstances, the said documents Ex.PW1/4 and Ex.PW1/3 cannot be relied upon by the plaintiff for claiming performance incentive from the defendant company. In this context, learned counsel for the defendant company has further submitted that even if the documents Ex.PW1/4 and Ex.PW1/3 are relied upon by this Court, then also from the said documents no finding can be arrived at to the effect that the performance of the plaintiff was satisfactory and the plaintiff was entitled to receive performance incentive for the period between July to September 2012 because an experience certificate or a relieving letter was generally issued by the defendant company or for that matter, by any employer to its staff members in a standard proforma and does not in any manner reflect the exact standard or level of performance of the said employee. Learned counsel for the defendant has further argued that the plaintiff was also not entitled to any arrears of salary in respect of deductions made from the salary of the plaintiff in the months preceding to his sudden absence from duty as the said deductions had been made on account of the fact that a few unauthorized leaves had taken by the plaintiff, which included leaves without pay and short leaves taken by the plaintiff. In this respect, it has been submitted by learned counsel for the defendant that as per the policy of the defendant company salary for half a day is supposed to be deducted for three short leaves availed by any employee in a calender month.
23. Learned counsel for the defendant has further argued that the plaintiff is not entitled to reimbursement of his Airtel mobile bills and internet data usage bills as claimed in the plaint because such bills are reimbursed only for the usage of internet data and call charges incurred for making official calls whereas the bills submitted by the plaintiff pertained to charges in respect of personal calls made by the plaintiff as well as internet data used by the plaintiff after or before office hours for doing personal work and in these circumstances, plaintiff was not entitled to reimbursement of his mobile and internet data usage CS No.117/13 16/32 bills.
24. Learned counsel for the defendant has further argued that plaintiff's job profile was such that he was not required to travel in relation to his duties and therefore, plaintiff was also not entitled to reimbursement of any travel bill. Hence, learned counsel for the defendant has submitted that plaintiff is not entitled to recovery of any amount from the defendant company.
25. I have considered the rival submissions of the plaintiff and the defendant company and perused the entire evidence led by the parties. My issuewise findings based on my appreciation of evidence are reproduced below:
ISSUEWISE FINDINGS Issue No.1 Whether the plaintiff has not paid proper court fee? OPD.
26. The onus of proving this issue was on the defendant. The defendant company has led no evidence in support of its claim that the plaintiff has not paid proper Court fee at the time of institution of the present suit. A perusal of Court record shows that the present suit has been instituted for recovery of a sum of Rs.1,40,000/ and the Court fee of Rs.4200/ has been affixed by the plaintiff on the plaint. Besides, it is pertinent to mention that the present suit had been instituted or filed on 14.05.2013, that is, after the Amended Court Fees Act for NCT of Delhi had come into force. As per the Court Fees (Delhi Amendment) Act, 2012, total Court fees payable by the plaintiff was Rs.3700/ which included a fixed Court fee of Rs.1000/ payable for the suit amount up to Rs.50,000/ and the additional Court fee to be calculated at a rate of 3% of the value of suit exceeding Rs.50,000/. Thus, the total Court fee payable by the plaintiff was Rs.3700/ and from a perusal of Court record, it is evident that the plaintiff had annexed Court fees worth Rs.4200/.
27. Therefore, the Court fees payable by the plaintiff as calculated in accordance with the rate of Court fees prevalent on 14.05.2013, that is, on the date of filing of suit was only Rs.3700/ and hence, the plaintiff had paid excess CS No.117/13 17/32 Court fees by affixing Court fee stamps worth Rs.4200/. It is also pertinent to mention that the said Court Fee Delhi Amendment Act, 2012 is no longer applicable as per the Order passed by Hon'ble High Court of Delhi in the case of Delhi High Court Bar Association & Anr. Vs. Govt. of NCT of Delhi & Anr. W.P. (C) No. 4770/2012, dated 09.10.2013 and the Order passed by Hon'ble Supreme Court of India in the SLP (C) No. 33231/2013 in Govt. of NCT of Delhi Vs. Delhi High Court Bar Association. However, as per the old Court Fee Act, which is now applicable for calculation of the Court fee, the plaintiff was supposed to pay Court fee of Rs.3710.40 and the plaintiff has annexed Court fee stamps in the sum of Rs.4200/, which is in excess of the Court fee payable by the plaintiff in the present suit. Therefore, the present suit is not liable to be dismissed for any kind of deficiency in payment of Court fees. Hence, the first issue is decided in favour of the plaintiff and against the defendant by arriving at a finding that the plaintiff has annexed proper Court fee with the plaint.
Issue No.2 Whether the plaintiff is entitled to recovery of Rs.1,40,000/ from the defendant? If yes, whether the plaintiff is entitled to interest? If so, at what rate and for what period? OPP.
28. The onus of proving this issue was on the plaintiff. Plaintiff has relied upon his appointment letter Ex.PW1/1 in support of his claim that he was entitled to monthly salary of Rs.75000/. Besides, plaintiff has also relied upon experience certificate Ex.PW1/4 and relieving letter Ex.PW1/3 purportedly issued in his favour by the defendant company in support of his claim that he had resigned from his employment with the defendant company as per procedure and had been duly relieved by the defendant company vide the relieving letter Ex.PW1/3. Therefore, plaintiff has claimed that he is entitled to salary for the period between 01.07.2012 to 13.08.2012. Besides, plaintiff has also claimed reimbursement of certain travel bills, mobile bills and internet data usage bills amounting to a total sum of Rs.8250/ in respect of expenses CS No.117/13 18/32 incurred for official travel and call charges as well as internet data usage charges incurred by him during the performance of his official duties. In addition, the plaintiff has claimed that he is also entitled to recover a sum of Rs.14000/ from the defendant company towards arrears of his salary in respect of deductions made from his monthly salary for a period of few months prior to the tendering of his resignation.
29. I have perused the entire evidence led by the plaintiff. A perusal of Court record shows that although as per the appointment letter of the plaintiff Ex.PW1/1, the total cost to company of employing the plaintiff to the post of Product Manager was Rs.75000/ per month. However, the net salary in hand component of the said cost to company was only Rs.63,664/. Therefore, the net salary payable to the plaintiff was Rs.63,664/ only and not Rs.75000/. Even as per the account statement of the plaintiff Mark PW1/2 relied upon by the plaintiff, salary amounting to Rs.61,610/ was credited to the HDFC bank account of plaintiff on 10.04.2012 for the month of March 2012 and similarly, salary amounting to Rs.61,229/ was credited to the said HDFC bank account of plaintiff on 9.5.2012 for the month of April 2012. Therefore, from the account statement of plaintiff Mark PW1/2, it is also evident that the plaintiff had never received Rs.75000/ as monthly salary and in fact, Rs.75000/ was the total cost incurred by the defendant company for hiring the plaintiff and not the actual net salary paid to the plaintiff. Therefore, as revealed from the appointment letter of the plaintiff Ex.PW1/1, the net salary payable to the plaintiff was only Rs.63,664/ per month.
30. Besides, it is the case of the plaintiff that he is entitled to the salary for the period between 01.07.2012 to 13.08.2012 as he had tendered his resignation after giving one month's oral notice of his intention to resign to his reporting manager Ms. Rita Kaul on 13.07.2012. However, plaintiff has not examined Ms. Rita Kaul in support of his claim that he had tendered his oral resignation to Ms. Rita Kaul. Besides, plaintiff has not placed on record any CS No.117/13 19/32 written document, whereby he had given advance notice of his intention to resign to the defendant company. In fact, plaintiff has not even placed on record any written resignation submitted by him before leaving the employment of the defendant company.
31. In these circumstances, there is no material on record to arrive at a finding that the plaintiff had in fact officially resigned from the post of Product Manager occupied by him in the defendant company. On the contrary, the defendant company has produced email dated 20.08.2012 Ex.DW1/6 in support of its claim that the plaintiff had simply stopped reporting to duty w.e.f. 14.08.2012 without giving any intimation to the defendant company of his intention to resign and the defendant company has claimed that this conduct of the plaintiff amounted to absconding from duty without giving any intimation to his employer. Also, from a perusal of the experience certificate Ex.PW1/4 and relieving letter Ex.PW1/3 relied upon by the plaintiff, it cannot be concluded that plaintiff had resigned from employment of the defendant company by giving one month's advance notice of his intention to resign to his employer. Hence, the plaintiff has failed to prove that he had given any written or verbal notice of his intention to resign to his employer before leaving services of the defendant company on 14.08.2012.
32. In these circumstances, the plaintiff's claim for salary for the period between 01.07.2012 to 13.08.2012 has to be determined from the terms and conditions of his employment as contained in the offer of appointment and appointment letter Ex.PW1/1 issued in his favour by the defendant company. A perusal of appointment letter of the plaintiff Ex.PW1/1 reveals that the said appointment letter dated 16.01.2012 contains clause 7 pertaining to the termination of employment of the plaintiff wherein it is mentioned that after confirmation of the plaintiff, his services could be terminated by either side by giving to the other party one month's notice or one month's salary in lieu thereof and in case of misconduct including acts of indiscipline, unapproved CS No.117/13 20/32 absence from work, breach of employee code, insubordination, non performance, dishonesty, negligence, fraud and damage to company or customer property including tampering with or unauthorized use of hardware or software, the defendant company had reserved its right to terminate the plaintiff without any notice or pay in lieu thereof. The relevant portion of clause 7 is reproduced below in this context : After confirmation, your services can be terminated by either side by giving, to the other party, one month's notice or one month's salary in lieu thereof. However, in case of misconduct, which includes but is not limited to acts of indiscipline, unapproved absence from work, breach of Employee Code, insubordination, nonperformance, dishonesty, negligence, fraud, damage to company of customer property, including tampering with or unauthorized use of computer hardware or software, the Company shall be at liberty to terminate your services without any notice or payment in lieu thereof.
33. In the light of abovecited provision explaining procedure for termination of employment of the plaintiff as contained in clause 7 of his appointment letter, it is evident that the plaintiff was required to give one month's advance notice to the defendant company before resigning from service. However, as discussed above, the plaintiff has failed to prove that he had either given a verbal notice to his employer or served a written notice upon his employer before resigning from employment of the defendant company. Therefore, the salary of plaintiff for a period of one month (30 days) is liable to be deducted in lieu of service one month's advance notice before tendering resignation. In this context, it is also pertinent to mention that a similar situation had come up for consideration before the Hon'ble High Court of Punjab and Haryana in a case wherein the petitioner, an Assistant Executive Engineer in Punjab State Power Corporation Ltd. had tendered his resignation by serving three months advance notice to his employer, although the petitioner was required to serve six months advance notice before tendering his resignation as per the service rules and regulations applicable to his post. The Hon'ble CS No.117/13 21/32 High Court of Punjab and Haryana had categorically held in this case of Vivek Chauhan vs Punjab State Power Corporation Limited and others CWP No. 19740 of 2011 (O&M) decided on 30.08.2012 that the salary of the petitioner for the period of remaining three months out of the total notice period of six months was liable to be deducted as the petitioner had served notice of his intention to resign three months prior to tendering resignation instead of serving an advance notice upon his employer at least six months prior to tendering his resignation as per his service rules. Relevant extract of observations made by Hon'ble High Court of Punjab and Haryana in the said case of Vivek Chauhan vs Punjab State Power Corporation Limited and others (Supra) are reproduced below in this context : In the present case, since the petitioner had merely served notice for a period of three months, though as per the Regulations Singh Varinder CWP No. 19740 of 2011 (4) 2012.09.05 10:22 Punjab & Haryana High Court Punjab & Haryana High Court at Chandigarh applicable for the post, the period required was six months, there is nothing wrong in the action of the Corporation requiring the petitioner to deposit salary and allowances for a period of three months for which the notice for resignation was short.
The contention of learned counsel for the petitioner that had the petitioner been informed at the initial stage about the requirement of giving notice of six months, he could have served the Corporation for another period of three months, is totally misconceived, for the reason that immediately after the petitioner relinquished his charge on 15.8.2011, he was intimated vide communication dated 17.8.2011 that till such time his request for relaxation of notice period is accepted, he should continue in service.
For the reasons mentioned above, I do not find any reason to quash the impugned communication dated 4.10.2011 (Annexure P11), requiring the petitioner to deposit salary and allowances for the period of three months for which the notice for resignation was short. The amount be now deposited on or before 28.9.2012. In case of failure, consequences shall follow.
34. In the light of the aforecited observation made by Hon'ble High Court of Punjab and Haryana in the abovecited case, it can be safely CS No.117/13 22/32 concluded that when an employee tenders his resignation without serving upon his employer advance notice of his intention to resign prior to the date when prescribed notice period applicable to his post starts running against him or leaves the service of his employer without tendering any resignation at all, then the salary of such an employee for the notice period is liable to be deducted in lieu of service of advance notice of intention to resign. In the present case, plaintiff Saurabh Mangal has failed to prove that he had served upon his employer any oral, verbal or written advance notice at least one month prior to tendering his resignation. Therefore, the salary of the plaintiff for a period of one month immediately prior to the date of leaving the service of the defendant company is liable to be deducted. However, it is the admitted case of parties that instead of deducting salary of the plaintiff for a period of 30 days, the defendant company has withheld the salary of the plaintiff for a period of 44 days and therefore, it can be safely concluded that the plaintiff is entitled to salary only for a period of remaining 14 days during which he had performed service under the employment of the defendant company apart from the notice period of 30 days.
35. Also, the plaintiff has claimed reimbursement of certain mobile bills, internet data usage charges amounting to Rs.7500/ and a travel bill in the sum of Rs.750/. However, it has been alleged by the defendant company that the plaintiff is not entitled to reimbursement of any of his mobile phone bills, internet data usage charges and the single travel bill placed on Court record by the plaintiff as the phone calls from the mobile phone of the plaintiff were made by the plaintiff after duty hours for personal reasons. Besides, the defendant company has further claimed that the internet data usage charges incurred by the plaintiff also pertained to usage of internet data by the plaintiff after his office hours. The defendant company has also claimed that the plaintiff's job profile was such that the plaintiff was not supposed to travel for official purpose. Hence, plaintiff was not entitled to reimbursement of travel expenses as CS No.117/13 23/32 claimed by him in respect of reimbursement of a single taxi fare bill in the sum of Rs.750/.
36. I have considered the rival submissions of parties in respect of claim of plaintiff for reimbursement of his mobile phone bills, internet data usage charges and single travel bill in the sum of Rs.750/ and perused the Court record. In this context, a perusal of photocopies of the mobile phone bill of the plaintiff Mark PW1/7 reveals that most of the calls from the mobile phone of the plaintiff had been made after midnight and it is not the case of the plaintiff that he was present at his office on the dates on which phone calls were made at or after midnight, therefore, there is no material on record to arrive at a finding that plaintiff had used the mobile phone bearing mobile no. 9871820516 for his official work at midnight.
37. Moreover, a perusal of telephone bill and data connectivity reimbursement policy of the defendant company Mark PW1/5 relied upon by the plaintiff reveals that while the BDM/Sr. BDM/ Manager and Sr. Manager working with Sales and Marketing Department of the defendant company were entitled to reimbursement of their mobile phone bills as per their entitlements, the other employees of the defendant company were however entitled to claim reimbursement of call charges in respect of calls made from their mobile phones and internet data usage bills upto 50% of their maximum limit subject to approval by the Heads of their departments. It is the admitted case of plaintiff that he was not working at the post of BDM/Sr. BDM/ Manager or Senior Manager in the Sales or Marketing department of the defendant company. Also, a perusal of copies of the bills Mark PW1/7 placed on Court record by the plaintiff for reimbursement shows that the same do not bear any stamp or noting to the effect that they have been approved by the Head of the department of the plaintiff as per the mobile phone bill and internet data usage reimbursement policy of the defendant company Mark PW1/5 relied upon by the plaintiff.
CS No.117/13 24/3238. A perusal of Court record further reveals that apart from the copies of his mobile bills, plaintiff has relied upon copy of his mobile bill reimbursement form Ex.PW1/6 and the plaintiff has claimed to have got the same approved from his line Manager. However, it is pertinent to mention that the plaintiff has failed to produce his original mobile reimbursement forms by moving appropriate application for getting the same produced from the office of the defendant company. Even in the photocopy of the said mobile reimbursement form Ex.PW1/6 relied upon by the plaintiff, the name of the line Manager of the plaintiff is not mentioned in the column for name of the line Manager who had signed the same. Moreover, in the column for the amount approved to be paid by the line Manager, no amount is mentioned. In these circumstances, from the photocopy of the mobile reimbursement form of the plaintiff Ex.PW1/6, it cannot be concluded that the amount claimed by the plaintiff through the mobile reimbursement form Ex.PW1/6 was in fact approved by the Head of his department. In these circumstances, no finding can be arrived at to the effect that plaintiff is entitled to reimbursement of Rs. 7500/ towards his mobile phone bills and internet data usage charges.
39. The next claim raised by the plaintiff is for reimbursement of a single travel bill in the sum of Rs.750/. However, it is the case of the defendant company that the plaintiff was not required to travel for official purpose and therefore, the taxi bill for commuting to Gurgaon placed on record by the plaintiff is not admissible for reimbursement.
40. In this context, a perusal of Court record shows that the job profile of the plaintiff was that of a Product Manager and although, it is mentioned in the appointment letter of the plaintiff that the plaintiff may be required to travel for official purposes as per directions given by the defendant company. However, the photocopy of the single travel bill placed on Court record by the plaintiff is not supported by any direction given to the plaintiff to go to Gurgaon for official work. Moreover, plaintiff has also not placed on record the original CS No.117/13 25/32 taxi bill and his conveyance charges reimbursement form by moving an application for getting the same produced from the office of the defendant company and therefore, the photocopy of conveyance charges reimbursement form and the photocopy of his taxi bill collectively Mark PW1/8 are not admissible in evidence. In these circumstances, there is no material on record to arrive at a finding that the plaintiff is entitled to reimbursement of his single travel bill in the sum of Rs.750/ whereby the plaintiff had traveled to Gurgaon by a taxi.
41. Through the present suit, the plaintiff has also claimed arrears of salary amounting to Rs. 14000/. However, the said arrears of salary have not been duly explained by the plaintiff. Plaintiff has merely claimed that a part of his salary was deducted on monthly basis by the defendant company during the course of employment with the said company and the total arrears of the said salary deducted by the defendant company amounted to Rs.14000/. However, the plaintiff has not placed on Court record any copy of protest letter written by him to the defendant company in respect of deduction of a part of his salary on monthly basis by the defendant company. Also, it is the case of the defendant company that deductions from the salary of the plaintiff were made on monthly basis on account of his unauthorized absence from duty without availing duly sanctioned leave.
42. In this context, a perusal of salary slips of the plaintiff Ex.DW1/9(colly) shows that the salary of the plaintiff was deducted on account of unauthorized leaves and short leaves availed by the plaintiff. In this regard, it is evident from the salary slip of the plaintiff for the month of January 2012 that total number of working days in the said month were 31 whereas the paid days for which the plaintiff had discharged duties with the defendant company were only 16 and therefore, the net pay of the plaintiff for the said month was about Rs.32,859/. In this context, it is also pertinent to mention that the plaintiff had joined the defendant company after 16 th of January 2012 as per his CS No.117/13 26/32 appointment letter dated 16.01.2012. Therefore, the plaintiff could not have discharged duties for more than 16 paid days or working days in the said month. Similarly, from a perusal of the salary slips of the defendant for the month of February 2012, it is evident that the paid days of the plaintiff for February 2012 were equal to the total number of working days in the said month, that is, 29 and therefore, no deductions had been made from the salary of the plaintiff in the said month. Likewise, from a perusal of the salary slip of the plaintiff for the month of March 2012, it is evident that plaintiff had availed one day's leave without pay (LPW) and was paid salary for a period of 30 days in March 2012 although the total number of the working days in the said month were 31. Further, a perusal of the salary slip of the plaintiff for the month of April 2012 reveals that no deductions had been made from the salary of plaintiff in April 2012 as his paid days were equal to total number of working days in the said month. Similarly, a perusal of the salary slip of the plaintiff for the month of June 2012 reveals that the plaintiff's paid days in the said month were 26.5 as against the 30 working days in the said month and the plaintiff had received a sum of Rs.56,875.54 towards his salary after deduction of pay for 3.5 days on which the plaintiff had not performed duties. From a perusal of the duties salary slip of plaintiff for the month of June 2012, it is also evident that in the said month, the plaintiff has also received a sum of Rs. 64,444/ towards arrears of salary for the month of May 2012. Therefore, from a perusal of salary slips of plaintiff Ex.DW1/9(colly), it is evident that salary in respect of one day's leave without pay was deducted from the salary of plaintiff for the month of March 2012. Likewise, salary for 3.5 days was deducted from the total salary due to the plaintiff for the month of June 2012 as plaintiff had not performed duty on 3.5 days during the said month. Apart from that no deductions had been made from the salary of plaintiff during the tenure of his employment with the defendant company as per the salary slips of the plaintiff and hence, plaintiff has failed to explain how a sum of Rs. 14000/ had become due to him on CS No.117/13 27/32 account of arrears of salary when no unauthorized deductions from his salary had been made by the defendant company. It is also pertinent to note that plaintiff has not placed on record any document to prove that he had ever protested against deduction of his salary during the period of his employment with the defendant company. On the contrary, the defendant company has placed on record salary slips of the plaintiff Ex.DW1/9 to prove that deductions from the salary of the plaintiff had been made in the months of March and June 2012 as the plaintiff had availed unauthorized leaves without pay during the said months. Hence, plaintiff is not entitled to any recovery in respect of arrears of his salary as claimed by him in para 11 of the plaint.
43. Having arrived at the conclusion that the plaintiff is neither entitled to reimbursement of his Airtel mobile bills and internet data usage bills as well as one taxi bill in the sum of Rs. 750/ for travel to Gurgaon from his office nor entitled entitled to arrears of salary in respect of deductions from his salary made during the preceding months prior to tendering his resignation, I shall now deal the argument of learned counsel for the plaintiff that the plaintiff is entitled to recover a sum of Rs. 8333/ towards performance incentive to be paid to him for the last quarter of his service with the defendant company, that is, for the period between July to September 2012.
44. In this context, a perusal of the plaint and replication (rejoinder) filed by the plaintiff reveals that the plaintiff has not made any pleading to the effect that he is entitled to recover a sum of Rs. 8333/ from the defendant company towards his performance incentive and therefore, evidence if any led by the plaintiff to the effect of his entitlement to recover a sum of Rs. 8333/ from the defendant company towards performance incentive cannot be looked into. Even otherwise, plaintiff has led no reliable evidence in support of his claim that he is entitled to recover a sum of Rs.8333/ from the defendant company towards performance incentive in view of the fact that it has been categorically admitted by the plaintiff in his cross examination by learned CS No.117/13 28/32 counsel for the defendant that he had never been paid any performance incentive by the defendant company during the entire tenure of his employment with the defendant company.
45. Moreover, the defendant company has led sufficient evidence in respect of its defence that the plaintiff's performance was not satisfactory and therefore, he was not entitled to receive any performance incentive from the defendant company. In this respect, the defendant company has placed on record emails Ex.DW1/1, Ex.DW1/2 and Ex.DW1/3 whereby the plaintiff as well as his manager Ms. Shikha Girgala had been informed about deficiency in performance of the plaintiff on account of the fact that plaintiff had frequently reported late to office and had also availed unauthorized short leaves and a performance improvement plan devised for the plaintiff had also been communicated to the plaintiff vide the said emails. Besides, the defendant company has also placed on record a copy of the attendance register of the defendant company for the months of July and August 2012 Ex.DW1/4 and Ex.DW1/5 respectively containing late marks and short leaves marked against the attendance record of the plaintiff during the said months. Additionally, during crossexamination by learned counsel for the plaintiff, DW2 Ashwani Pande had produced original employee InOut register of the defendant company wherein entries had been made by the plaintiff while going out from the office premises during office hours for doing personal work. The said register Ex.DW2/2 was produced by DW2 Ashwani Pande during his cross examination and learned counsel for the plaintiff had objected to the production of this register during crossexamination of the witness on ground that no averment regarding existence of employee InOut register had been made by DW2 in his examinationinchief and therefore, DW2 could not have produced the said document (register) during his examination. However, this objection to the production of employee In Out register Ex.DW2/2 by DW2 in his cross examination cannot be sustained as it is settled law that whenever a witness is CS No.117/13 29/32 asked any question during crossexamination, he can produce a document to support his answers to the said questions.
46. Nevertheless, even if the employee InOut register Ex.DW2/2 is held to be inadmissible in evidence on account of its production in his cross examination by DW2 Ashwani Pande and even if the said register is not looked into for the purpose of arriving at the finding whether the plaintiff is entitled to performance incentive or not, the defendant company has otherwise led sufficient evidence in the forms of emails Ex.DW1/1 to Ex.DW1/3 to prove that the plaintiff's performance was not satisfactory and a performance improvement plan was also devised for the plaintiff as well as communicated to the plaintiff vide the said emails. Moreover, from a perusal of copies of employees attendance register for the month of July and August 2012 Ex.DW1/4 and Ex.DW1/5 respectively it is evident that the plaintiff had not only failed to report on duty on several days during the said months but had also reported late to office and had availed frequent short leaves during the said period. Therefore, the defendant company has led sufficient evidence in support of its claim that the performance of the plaintiff during the last quarter of his employment with the defendant company, that is, during July and August 2012 was not satisfactory and it can be safely concluded that plaintiff was not entitled to receive any performance incentive from the defendant company for the said period.
47. In light of my foregoing discussion, I am of the considered opinion that plaintiff is neither entitled to reimbursement of his Airtel mobile bills , internet data usage bills as well as a single taxi bill in the sum of Rs. 750/ for travel to Gurgaon from his office nor entitled to receive arrears of salary in respect of deductions made from his salary during the few months preceding his resignation. Besides, the plaintiff is also not entitled to receive any performance incentive for the last quarter of his employment with the defendant company, that is, for the months of July and August 2012. The only claim of the CS No.117/13 30/32 plaintiff, which is left for consideration is in respect of his salary for the months of July and August 2012.
48. As already discussed above, clause 7 of the appointment letter of plaintiff Ex.PW1/1 is a valid and enforceable clause of the employment contract between the plaintiff and the defendant whereby the plaintiff was required to give one month's (30 days) advance notice before tendering his resignation from the services of the defendant company and in the event of failure of the plaintiff to serve 30 days advance notice before tendering his resignation, the salary of the plaintiff for a period of 30 days was liable to be forfeited by the defendant company. However, it is the admitted case of the parties that the defendant company has forfeited salary of the plaintiff for the entire period between 01.07.2012 to 13.08.2012. Therefore, the defendant company has deducted the salary of the plaintiff for a period of about 44 days whereas as per the clause 7 of the appointment letter of the plaintiff, the defendant company could have forfeited salary of the plaintiff for a period of one month (30 days) only. Therefore, the plaintiff is entitled to payment of salary of 14 days, which has been excessively withheld by the defendant company in violation of clause 7 of the appointment letter of the plaintiff Ex.PW1/1. As per the appointment letter of plaintiff, the monthly salary of plaintiff was about Rs.63,664/ and therefore, the salary of the plaintiff for the period of 14 days amounts to Rs.29,709.86. The said amount of Rs.29,709.86 had become due to the plaintiff on 14.08.2012 when he had left services of the defendant company. However, the said amount had been not paid to the defendant till the filing of present suit on 14.05.2013. Therefore, plaintiff is also entitled to an interest @ 12% per annum for a period of nine months prior to the filing of the present suit, which amounts to Rs.2673.88. Therefore, plaintiff is entitled to recover a total sum of Rs.32,383.74 from the defendant.
49. Plaintiff has also claimed pendentelite and future interest @ 18% per annum on the suit amount. However, the said rate of interest claimed by the CS No.117/13 31/32 plaintiff is exorbitant. Therefore, keeping in view the prevalent rate of interest in banks and financial institutions, it is hereby ordered that plaintiff is entitled to pendentelite and future interest @ 10% per annum on the suit amount of Rs. 32,383.74 with costs to the extent of decreetal amount. Issue no.2 is accordingly decided partially in favour of the plaintiff and against the defendant by arriving at a finding that the plaintiff is entitled to recovery a sum of Rs.32,383.74 from the defendant company with pendentelite and future interest @10% per annum as well as costs of the suit to the extent of decreetal amount.
Issue No.3 Relief.
50. In view of the findings in issue no.2 above, it is hereby ordered that plaintiff is entitled to recovery of Rs. 32,383.74 (Rupees Thirty Two Thousand Three Hundred Eighty Three and Seventy Four paisa only) from the defendant company with pendentelite and future interest @10% per annum as well as costs of the suit to the extent of decreetal amount.
51. Decreesheet be prepared accordingly. File be consigned to Record Room after compliance of necessary formalities.
Announced in open Court (Jasjeet Kaur)
today on 31.01.2015 Civil Judge01/ Metropolitan Magistrate
New Delhi
CS No.117/13 32/32