Delhi District Court
S.C. Wadhwa vs Ms Fiitjee Ltd on 21 March, 2024
S.C. Wadhwa Vs. M/s. FIITJEE Ltd.
IN THE COURT OF SH. JITEN MEHRA: ADJ 10:
TIS HAZARI COURTS: DELHI.
CS DJ NO.611017/16
CNR NO.DLCT01-000117-2008
In the matter of:
Sh. Wg. Cdr. S.C. Wadhwa
S/o Late Sh. Hari Dev
R/o H. No.J-242, Sector 25,
Noida, Uttar Pradesh. .
.....Plaintiff
Versus
M/s. FIIT JEE Ltd.
Through its Managing Director:
Sh. D.K. Goyal (Founder).
Office at:
ICES House,
29-A Kalu Sarai, Sarvapriya Vihar,
New Delhi.
.....Defendant
Date of institution: 14.05.2008
Date on which reserved for judgment: 20.03.2024
Date of decision : 21.03.2024
SUIT FOR RECOVERY OF RS.5,54,504/- (RUPEES
FIVE LAKHS FIFTY FOUR THOUSAND
FIVE HUNDRED FOUR ONLY)
JUDGMENT
1. The present civil suit has been filed by the plaintiff against CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.1/37 the defendant seeking recovery of Rs.5,54,504/- (Rupees Five Lakhs Fifty Four Thousand Five Hundred and Four Rupees). Plaintiff's version as per the plaint:
2. The plaintiff joined the defendant company as an employee on 01.09.2000. After one month training and three months of probation, the plaintiff was confirmed on 1.1.2001. The plaintiff and the defendant also executed all the necessary documents regarding salary and terms & conditions of service. The defendant offered the following salary structure to the plaintiff:
a. Training period (01.09.2000-
30.09.2000) Rs.14,225/-
with employer contribution to
security fund at 12.5% Rs.1,775/-
b. Probation period 01.10.2000-
31.12.2000) Rs.16,000/-
with employer contribution to
security fund at 12.5% Rs.2,000/-
c. Confirmation effective from
01.01.2001 in the scale of Rs. 9,000/-
9000-500-14000 with basic Rs. 1800/-
monthly salary of
As per the plaintiff, it was mentioned in the contract that the defendant was required to give three months' prior notice to him CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.2/37 before terminating his services. The plaintiff contents that he was always appreciated by the office bearers and other staff of the defendant and he was given approximately 40% increment after the first appraisal in March 2001. However, the defendant did not carry out any appraisal between March, 2001 and July, 2005 and neither gave any increment as per the contract nor informed him or assigned any reason.
3. As per the plaint, the plaintiff applied for 10 days' leave in July, 2004 to meet his son in Singapore with effect from 30 th July, 2004 to 08th August, 2004 and he rejoined work on 10 th August, 2004. To his dismay, his salary for the month of July, 2004 which was due on 07.08.2004, was withheld by the accounts department without any reason. When he approached the HR Department of the defendant on 25.08.2004, the same was credited to his bank account on 07.09.2004. However, his salary for the month of August, 2004 was withheld and then he again approached the HR Department, thereupon, he was asked to contribute one week salary to home for blind and only then, his salary would be released. It is further averred that taking it as a social cause, he CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.3/37 accepted the request and his salary was then released.
4. Thereafter, on 12.07.2005, the plaintiff was called by Mr. Nilesh Shah, Chief Financial Officer of the defendant and was asked to resign with immediate effect without giving any reason or valid reason. When the plaintiff resisted this order, he was given termination letter with the allegation, "inspite of repeated warnings to you to improve your performance, you have not shown any improvement". As per the plaintiff, he was not issued any warning at any moment rather he was always appreciated for his good job and performance. The defendant is stated to have violated the terms and conditions of the contract and also their own service rules and following amounts are due from the defendant:
S. No. Particulars Amount
a. Employees contribution towards
Security Fund Rs.51,642/-
b. FIITJEE contribution towards
Security Fund upto April, 2005 Rs.1,33,174/-
c. FIITJEE contribution towards
Security Fund for the period
May, 2005-12.07.2005 Rs.5,967/-
d. Salary due for
01.07.2005-12.07.2005 Rs.8,923/-
e. LTA for 2005 till 12.07.2005 Rs.4,471/-
f. Encashment of earned leave Rs.2,300/-
g. Refund of medical insurance premium
deducted from salary of June, 2005 Rs.2,837/-
CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.4/37
h. 3 months' salary in lieu of notice period
as per the contract Rs.95,250/-
i. Increment arrears Rs.67,028/-
j. Gratuity which would have been due
after 5 years confirmed service, if not
illegally terminated Rs.82,849/-
TOTAL AMOUNT Rs.4,54,441/-
Interest @ 12%
(12.07.2005 to 12.03.2007) Rs.1,00,063/-
GRAND TOTAL Rs.5,54,504/-
The plaintiff also sent a legal notice in January 2008 and a reminder on 04.04.2008 for payment of the aforesaid due amount of Rs.5,54,504/-, however, the defendant neither replied nor paid the outstanding amount. Hence, the present suit. Defendant's version as per the Written Statement
5. The defendant filed its written statement and vide order dated 07.03.2016, it was allowed to amend the same. In the amended written statement, the defendant raised preliminary objections that the suit of the plaintiff is not maintainable as he is a 'workman' as per the Industrial Disputes Act and that the plaintiff has concealed material facts. According to the plaintiff, the services of the plaintiff were terminated in terms of clause 8(c) of service manual, which was executed between the parties. It is further submitted that the plaintiff was in the habit to remain CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.5/37 absent and would come late and not remain in his seat during duty hours. The plaintiff is also alleged to have displayed an arrogant and disrespectful behavior when warned about his conduct. As per the defendant, the plaintiff's leave for two weeks was declined in the year 2004 and even then, he remained absent from the office w.e.f. 30.07.2004 to 08.08.2004 without any intimation and information. The management found him guilty of misconduct after inquiry and was directed to make financial contribution to the blind school as an opportunity to reform. Instead of taking the punishment awarded to him in the right spirit and mending his ways, plaintiff openly claimed that he had not committed any mistake and whatever amount he had deposited with the blind school was towards a social cause and not in compliance of the directions of the Chairman of the defendant.
6. It is further submitted that when the plaintiff failed to mend his ways, he was specifically informed by the defendant either to mend his ways or resign. However, despite warning and punishment, he continued the dereliction of duty, disobedience, CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.6/37 insubordination and use of un-parliamentary language. The plaintiff was warned of consequences of proceeding on leave without informing the relevant person but he remained absent periodically without information and also over-stayed the leave. It is further stated that in the event of termination of employee on disciplinary ground, no salary for notice period was payable. In reply on merits, similar averments were made. It is submitted that the periodical increments in the defendant company are norm and it was not specific to the plaintiff owing to any special quality as was sought to be portrayed. It is further submitted that the attitude of the plaintiff towards work started deteriorating and it reflected in no increments being offered to him. That the plaintiff was asked to deposit salary equivalent to one week to home for blind as punishment meted out to him through the process of inquiry undertaken in this regard. Therefore, the defendant prayed that the plaint be dismissed.
Replication of the Plaintiff
7. In the replication filed by the plaintiff to the written statement of the defendant, he essentially reiterated his stand as stated in the plaint and denied the allegations in the written CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.7/37 statement of the defendant. It is submitted that the defendant is habitual of not paying the salary of staff and faculty members after taking hard work from them.
Issues framed:
8. That vide order dated 29.09.2009, the following issues were framed in the suit by the ld. predecessor of this Court:
(1) Whether the plaintiff is workman under the Industrial Disputes Act and Dispute is to be adjudicated by the Industrial Tribunal/Labour Court only and barring the jurisdiction of the civil court? (OPD) (2) Whether the plaintiff is entitled to recover the amount as claimed in the suit? (OPP) (3) If the answer to the issue no.2 is in the affirmative, as to whether the plaintiff is entitled to any interest? If so, its quantum and period? (OPP) (4) Relief.
9. The perusal of the order sheets reveals that despite the issues already having been framed vide order dated 29.09.2009, the Ld. predecessor of this Court again framed issues on 02.03.2013, which are as follows:
1. Whether the suit of the plaintiff is barred by the CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.8/37 provisions of the Industrial Disputes Act? OPD
2. Whether the plaintiff is entitled to realize his pay, as prayed, if yes, from which date upto which date? OPP
3. Whether plaintiff is also entitled to the interest on the amount, if yes, at what rate and from which date upto which date? OPP
4. Relief.
10. The order dated 02.03.2013 makes no reference to the earlier order dated 29.09.2009 whereby the issues were already framed and seems to have been passed mistakenly. However, since the issues framed under the above two orders are substantially the same, I deem it fit to decide the present suit as per the issues framed as per the earlier order dated 29.09.2009 and the order dated 02.03.2013 is recalled to such extent.
Evidence adduced by the Plaintiff:
11. The plaintiff and defendant each examined only one witness in support of their respective contentions. The plaintiff tendered the evidence by way of affidavit (Ex. PW-1/A) on 20.01.2017 and 15.07.2017 in which the contents of the plaint were reiterated. PW-1 relied upon and exhibited documents ie.
legal notice dated January, 2008 and reminder dated 04.04.2008 CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.9/37 along-with postal receipts as Ex. PW-1/F and Ex. PW-1/G and the copy of agreement dated 20.08.2000 was marked as Mark A; confirmation letter dated 23.12.2000 as Mark B and the letter dated 24.03.2001 was marked as Mark C.
12. PW-1 was cross examined on 07.10.2017 during which he stated that he had not been given any increment or appraisal by the defendant for the period 2001-2005 and that he had not written any letter or sent any notice with respect to the same. PW-1 stated that his leave from 30.07.2004 till 08.08.2004 was not recommended by Ms. Bhawna Gupta (HoD), however the same was verbally approved by the higher authority Mr. M. M. Goyal. He admitted that he had no proof of this approval. PW-1 was confronted with a letter dated 29.07.2004 (Ex. PW-1/D1) and he admitted receiving the same on 29.07.2004 itself. He further admitted that he did not file any reply to the said letter and as per him the matter was closed by the Chairman of the defendant Sh. D. K. Goyal.
13. PW-1 was recalled for further cross-examination on CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.10/37 01.09.2018 during which he stated that on receiving the letter dated 29.07.2007, he went to Mr. M. M. Goyal who asked him to proceed on leave. He further admitted that he had not stated this fact in the plaint. PW-1 was then confronted with a show-cause notice dated 12.08.2004, which was exhibited as Ex. PW-1/D2 and he admitted his signatures on the same at point X. PW-1 admitted to filing his reply to the said show-cause notice and stated that he had not placed the same on record. PW-1 also admitted that he had not mentioned the fact that he had been served with the show-cause notice dated 12.8.2004 in his plaint. He also admitted that on account of his unauthorized absence from duties, he had been asked to deposit one week's salary with a blind home as a disciplinary action. PW-1 was then confronted with document Ex. PW-1/D3, to which he stated that Mr. D. K. Goel had directed him to deposit a week's salary with a blind home. The suggestion was also put to the witness that para no.9 of the evidence by way of affidavit Ex. PW-1/A was beyond pleadings, which as per the Court's observation is to be decided at the time of final adjudication.
CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.11/37
14. PW-1 was again recalled for cross-examination on 20.10.2018 during which he admitted that he had not challenged his termination of service before any Court. He volunteered the reason for the same that since he did not want to continue his employment with the defendant company, he did not challenge his termination. He again stated that the termination was for wrong reasons since no warning had been issued to him. He further stated that he had written on the termination letter itself that no warnings had been issued to him. However, he stated that he did not know whether the said termination letter had been placed on record by him. PW-1 again asserted that his leave from 30.07.2004 till 08.08.2004 was not recommended by the head of department, however the same was verbally allowed by Mr. M. M. Goyal, Head of HR and admitted that a penalty of deposit of one week's salary with a blind school was imposed upon him. PW-1 denied the suggestions that he was terminated from service on account of inappropriate behavior, insubordination and disobedience.
15. Thereafter, the plaintiff closed his evidence on 29.5.2019. CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.12/37 Evidence adduced by the Defendant:
16. The defendant examined its authorized representative Sh. Ashish Kumar Aggarwal as DW-1 who tendered his evidence by way of affidavit as Ex. DW-1/A on 27.11.2021, in which he stated that the defendant company is a company incorporated under the provisions of the Companies Act, 1956 and deals with the training of aspirants of IIT-JEE having an established brand name and multiple branches employing more than 1700 permanent faculty members. He further stated that the plaintiff is a "workman" and hence the present suit was not maintainable. DW-1 stated that the relationship between the plaintiff and the defendant was governed by its service manual and his services were terminated as per the clause 8(c) of the service manual. He also relied upon Annexure B of the service manual pertaining to the leave policy. Annexure C of the service manual pertaining to Joining Performa and Code of Conduct was also relied upon. DW-1 stated that the plaintiff was in the habit of remaining absent and would come late to office and not remain in his seat during duty hours. The plaintiff paid no heed to the advice or warning of the seniors also in this regard and displayed an CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.13/37 arrogant and disrespectful attitude towards them. In the year 2004, the plaintiff applied for leave for two weeks, which was declined vide letter dated 29.07.2004, which was already exhibited as Ex. PW-1/D1. However, despite the same, the plaintiff proceeded on unauthorized leave from 30.07.2004 till 08.08.2004. DW-1 further stated that Ms. Bhawna Gupta initiated action against the plaintiff vide inter office memo, which was relied upon as Ex. DW-1/1. The plaintiff was also issued a show- cause dated 12.08.2004 which was already exhibited as Ex.PW- 1/D2. DW-1 further stated that the plaintiff was found guilty of misconduct and was liable to be terminated, however still the defendant company granted an opportunity and directed the plaintiff to contribute one week's salary to a blind school. The copy of the disciplinary proceedings was relied upon as Ex. PW- 1/D3. The letter dated 08.09.2004, by way of which the plaintiff was directed to deposit one week's salary to the blind school, was relied upon as Ex. DW-1/2. DW-1 further stated that despite the punishment, the plaintiff did not mend his ways and started claiming that the amount deposited was towards social cause and not account of directions of the Chairman of the defendant CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.14/37 company. He also deposed that in the event of termination of an employee, no salary for the notice period is payable and further it was the defendant company's option to give three months notice or give salary in lieu of three months notice.
17. DW-1 was further cross-examined on 27.11.2021 during which he stated that he was holding the post of Management Head-Legal and Vice President HR. He admitted that the plaintiff was appointed vide appointment letter dated 20.08.2000, which was then exhibited as Ex. DW-1/P1. DW-1 also admitted that the plaintiff was confirmed vide letter dated 23.12.2000, which was then exhibited as Ex. DW-1/P2. DW-1 also admitted that the pay of the plaintiff was revised vide letter dated 24.3.2001, which was then exhibited as Ex. DW-1/P3. A copy of the service rules, governing the employment of the plaintiff was exhibited as Ex. DW-1/P4 and the code of conduct was exhibited as Ex. DW- 1/P5. DW-1 further deposed that the plaintiff had been terminated as per service rules and that the original of Ex. DW- 1/1 was issued to the plaintiff but again said, voluntarily, that Ex. DW-1/1 was an issued document and it was not addressed to the CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.15/37 plaintiff. When it was specifically put to him that Ex. DW-1/1 was never issued to the plaintiff, the witness deposed that Ex. DW-1/1 was an inter-office memo regarding unauthorized absence of plaintiff and his attitude and inappropriate remarks and having no sense of responsibility towards his work and that further he had proceeded on long leave even after refusing about the same. He denied the suggestion that no such inter-office memo was issued or that Ex. DW1/1 was a fabricated document. DW-1 further deposed that the long leave has been defined in the service rule, pay allowance & perquisites and that the annexure B of the service rules can be referred for the same. The Head of Department was authorized to sanction leave in defendant office. He could not say as to whether the plaintiff was not being sanctioned any leaves by his HoD. He was specifically asked the suggestion that the crux of the dispute was only five days' leaves, to which he replied that the issue was that the plaintiff was not sanctioned leaves by his HoD and he was also informed about the same but he was continuously and was in the habit of misbehaving, disobedient and negligent and irresponsible towards his duties and disobeying of the directions of his HoD. CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.16/37 He affirmed that the show-cause notice Ex. PW1/D2 dated 12.08.2004 was given by in-charge HRD. He denied the suggestion that no inquiry committee was ever constituted or instituted against the plaintiff or that there was no inquiry report against the plaintiff in any case whatsoever. The witness deposed that plaintiff was not entitled for gratuity. He deposed that the Gratuity Act was applicable upon the defendant. He deposed that the services of the plaintiff were terminated without giving 3 months notice as the same was not required as per service terms and conditions. He also admitted that the plaintiff made the payment to the blind school as directed because he was guilty as per his conduct. On being asked as to what was the allegations for which the plaintiff was held guilty and directed to pay the blind school, the witness deposed that it was a matter of record. He denied the suggestion that from 08.08.2004 to 12.07.2005 there was no warning or adverse comments or censure or disciplinary proceedings by the defendant company against the plaintiff or that the plaintiff is entitled to 3 months pay in lieu of notice, security fund, gratuity and other service benefits. He deposed that the defendant company carried out appraisal of all CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.17/37 the employees as per company rules and norms and that the service rules and other documents were already on record. On being asked whether the appraisal of the plaintiff was carried out between the period of 2001 to 2005, the witness deposed that it was a matter of record. He deposed that whatever the plaintiff had placed on record, was part of court file. He denied the suggestion that there was no appraisal policy of the defendant or that appraisal of the employees of the defendant used to be carried out as per the discretion of the management. He voluntarily stated that the appraisal was always subject to performance of the employee. He went on to depose that one Mr. Nilesh Shah, terminated the plaintiff, but, he did not remember at that point of time as to in what capacity he was working in the defendant company. He deposed that the appointment letter of the plaintiff bore the signatures of Mr. D.K. Goel, Managing Director. He deposed that he did not remember who was the managing director at the time of the termination of the services of the plaintiff. He voluntarily stated that the services of the plaintiff was terminated as per terms and condition of service rules. He denied the suggestion that Mr. Nilesh Shah was not the CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.18/37 appropriate authority to terminate the plaintiff and that the services of the plaintiff were terminated illegally and without following the procedure by the defendant company.
18. DW1 was specifically asked as to which of the following documents ie. the copy of the proceedings taken by disciplinary committee as stated by him in affidavit or whether the letter dated 08.09.2004 directing the plaintiff to deposit one month salary were both mentioned as Ex. PW1/D3 and that he had placed a copy of new documents proceedings of disciplinary committee on record and exhibited it as Ex. PW1/D3 in order to mislead the court and fabricate evidence before the Court. To which, the witness replied that the Ex PW1/D3 was already on record and exhibited as per law and that there was no fabrication or misleading of the court. The witness admitted that the letter dated 08.09.2004 directing the plaintiff to deposit month salary to blind school was already placed on record as Ex. PW1/D2. He denied the suggestion that he fabricated evidence before the Court with the purpose to place on record a photocopy of proceedings of disciplinary committee as PW1/D3. He also CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.19/37 denied the suggestions that allegations that the plaintiff showed arrogance, disrespectful behavior towards seniors, dereliction of duties, rude behavior were false and that the plaintiff went on leave without information. He further denied the suggestion that no disciplinary action was initiated against the plaintiff during his entire service.
Arguments of the plaintiff:
19. The ld. counsel for the plaintiff Sh. Sanjive Rohatgi has argued that the DW-1 Sh. Ashish Kumar Aggarwal, during his cross-examination, has feigned ignorance upon relevant facts for falsely deposed which has a direct bearing upon the disposal of the suit. The defendant has not placed any document showing the provisions of the Service Manual nor to show that the termination of the plaintiff was for the acts and deeds as mentioned in the said clause or whether any opportunity to be heard was given to the plaintiff. It is vehemently contended that the termination of the plaintiff was illegal, arbitrary with the malafide intention to sub-serve their own interest at the cost of the plaintiff. It is also argued that the defendant has also not CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.20/37 placed on record any document to show that the defendant had complied with the provisions of its code of conduct while terminating the services of the plaintiff. Further, as per Clause No.6 of the leave policy of the defendant company, HoD was only the recommending authority and not the sanctioning authority. Hence, Ms. Bhawana Gupta, being HoD, was not the authorized person to sanction leave and as such, the plaintiff approached Mr. M.M. Goyal In-Charge, HRD and Legal Affairs who allowed him to proceed on leave as already planned. It is vehemently contended that the plaintiff was appointed as Academic Co-ordinator vide appointment letter dated 20.08.2000 Ex. DW-1/P1 and was not a "workman" as per the definition of the "Workman" as contained in the Industrial Disputes Act and hence, the suit of the plaintiff is maintainable before the Civil Court. That no document/proceedings against the plaintiff, complying with the provisions of the Service Rules/Code of Conduct of the defendant company has been placed by it on record and that there was no recommendation/decision of termination of service of the plaintiff in the Show Cause notice dated 24.08.2004 with respect to his leave from 30th July to 8th CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.21/37 August, 2004. It is the grievance of the plaintiff that the defendant company has not even paid the salary due for the period 01.07.2005 till 12.07.2005 to the plaintiff. It is prayed that the suit of the plaintiff be decreed as prayed for. Arguments of the Defendant
20. The Ld. counsel for the defendant Sh. Mukesh Mohan Goel has argued that the relationship between the plaintiff and the defendant was contractual in nature and governed by Service Rules and Code of Conduct. That the service of the plaintiff was terminated in terms of clause 8(c) of service manual, admittedly executed between the parties. It is contended that appraisal of 40% was accorded to the plaintiff in the month of March, 2001 on the expectation that he shall perform to the expectation of the defendant which proved wrong as the conduct of the plaintiff was not conducive for the organization but was rather arrogant and disrespectful. The plaintiff did not attend the office despite the fact that his application for leave for two weeks was declined. Ms. Bhawna Gupta initiated action against indiscipline of the plaintiff. The plaintiff was found guilty of misconduct. Though CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.22/37 he was liable to be terminated, defendant granted him an opportunity to reform and was directed to make financial contribution to the blind school by depositing one week's salary there vide letter dated 08.09.2004. It is argued that instead the plaintiff made a wrong statement that he deposited the amount as a social cause which speaks aloud about the conduct and mindset of the plaintiff. It is further argued that there is no pleading in the entire plaint regarding rejection of leave of the plaintiff or that the leaves were sanctioned by MM Goyal.
21. The rebuttal to the written arguments/submissions of the defendant were also filed by the plaintiff stating that the defendant has not placed any material/thing on record of this court to show that the termination was for the acts and deeds as mentioned in the said clause and/or any opportunity to be heard was given to the plaintiff. Thus, the defendant company has not followed its own Code of Conduct while terminating his services and his termination was not on disciplinary grounds. The defendant has not filed any inquiry report or findings of the inquiry before the Court. No warning memo nor names of the CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.23/37 seniors against whom un-parliamentary or abusive language was used etc. have been placed on record, and no evidence to support the same has been led. It is further contended in rebuttal that the plaintiff was not terminated upon the disciplinary ground as is evident from the termination letter. That the defendant has deliberately not referred to clause 8(a) of the Salary and Terms & Conditions.
22. I have heard the arguments advanced by the ld. Counsels for the parties and perused the record.
Issue wise findings and analysis of the evidence:
Issue No.1 (1) Whether the plaintiff is workman under the Industrial Disputes Act and Dispute is to be adjudicated by the Industrial Tribunal/Labour Court only and barring the jurisdiction of the civil court? (OPD)
23. The onus to prove the above-mentioned issue was upon the defendant. DW-1 has stated in its evidence by way of affidavit Ex. DW-1/A that the defendant is engaged in the training of aspirants of IIT-JEE (Indian Institute of Technology and Joint CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.24/37 Entrance Examination), i.e. a coaching center, having more than 700 permanent faculty staff members and support staff besides non-faculty staff. As per the letter of appointment dated 20.08.2000 (Ex. DW-1/P1), the plaintiff was employed in the defendant company as an 'Academic Co-ordinator'. The defendant has not stated in the written statement or led any evidence to show what was the role and responsibilities of the plaintiff as an academic co-ordinator.
24. The term 'workman' is defined under section 2(s) of the Industrial Disputes Act, which is as follows:
(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implies, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any person -
(i) who is subject to the Air Force Act, 1950 ( 45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison, or
(iii) who is employed mainly in a managerial or administrative capacity, or
(iv) who, being in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. [Emphasis supplied] CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.25/37
25. As per the definition of workman in the Industrial Disputes Act, : A workman includes any person (including an apprentice) employed in an industry to do manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward in an 'industry'. The definition of industry is provided under section 2 (j) of the Industrial Disputes Act, which is as follows:
(j) "industry" means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen.
26. The position of law is settled with respect to the question whether an educational institute can be termed as an 'industry' under the Industrial Disputes Act and who is a 'workman'?. The hon'ble Apex Court has held in Raj Kumar v. Director of Education, (2016) 6 SCC 541, that the term industry includes an educational institution, however every employee of an industry cannot be termed as a 'workman'. It has been held as follows:
"28. We are unable to agree with the contention advanced by the learned counsel appearing on behalf of the appellant. The question "who is a workman?" has been well settled by various judgments of this Court. In H.R. Adyanthaya v. Sandoz (India) Ltd. [H.R. Adyanthaya v. Sandoz (India) Ltd., (1994) 5 SCC 737 : 1994 SCC CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.26/37 (L&S) 1283] , a Constitution Bench of this Court has held as under :
(SCC p. 752, para 24) "24. We thus have three three-Judge Bench decisions [May and Baker (India) Ltd. v. Workmen, AIR 1967 SC 678] , [Western India Match Co. Ltd. v. Workmen, AIR 1964 SC 472] , [Burmah Shell Oil Storage and Distribution Co. of India Ltd. v. Management Staff Assn., (1970) 3 SCC 378] which have taken the view that a person to be qualified to be a workman must be doing the work which falls in any of the four categories viz. manual, clerical, supervisory or technical and two two-Judge Bench decisions [A. Sundarambal v. Govt. of Goa, Daman & Diu, (1988) 4 SCC 42 : 1988 SCC (L&S) 892] , [T.P. Srivastava v. National Tobacco Co. of India Ltd., (1992) 1 SCC 281 : 1992 SCC (L&S) 263] which have by referring to one or the other of the said three decisions have reiterated the said law. As against this, we have three three-Judge Bench decisions [S.K. Verma v. Mahesh Chandra, (1983) 4 SCC 214 : 1983 SCC (L&S) 510] , [Ved Prakash Gupta v. Delton Cable India (P) Ltd., (1984) 2 SCC 569 : 1984 SCC (L&S) 281] , [Arkal Govind Raj Rao v. Ciba Geigy of India Ltd., (1985) 3 SCC 371 : 1985 SCC (L&S) 808] which have without referring to the decisions in May and Baker [May and Baker (India) Ltd.
v. Workmen, AIR 1967 SC 678] , WIMCO [Western India Match Co. Ltd. v. Workmen, AIR 1964 SC 472] and Burmah Shell [Burmah Shell Oil Storage and Distribution Co. of India Ltd. v. Management Staff Assn., (1970) 3 SCC 378] cases have taken the other view which was expressly negatived viz. if a person does not fall within the four exceptions to the said definition he is a workman within the meaning of the ID Act. These decisions are also based on the facts found in those cases. They have, therefore, to be confined to those facts. Hence the position in law as it obtains today is that a person to be a workman under the ID Act must be employed to do the work of any of the categories viz. manual, unskilled, skilled, technical, operational, clerical or supervisory. It is not enough that he is not covered by either of the four exceptions to the definition. We reiterate the said interpretation."
"29. The issue whether educational institution is an "industry", and its employees are "workmen" for the purpose of the ID Act has been answered by a seven-Judge Bench of this Court way back in the year 1978 in Bangalore Water Supply [Bangalore Water Supply and Sewerage Board v. A. Rajappa, (1978) 2 SCC 213 : 1978 SCC (L&S) 215] . It was held that educational institution is an industry in terms of Section 2(j) of the ID Act, though not all of its employees CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.27/37 are workmen. It was held as under : (SCC pp. 264-65, paras 95-96) "95. ... The premises relied on is that the bulk of the employees in the University is the teaching community. Teachers are not workmen and cannot raise disputes under the Act. The subordinate staff being only a minor category of insignificant numbers, the institution must be excluded, going by the predominant character test. It is one thing to say that an institution is not an industry. It is altogether another thing to say that a large number of its employees are not "workmen" and cannot therefore avail of the benefits of the Act so the institution ceases to be an industry. The test is not the predominant number of employees entitled to enjoy the benefits of the Act. The true test is the predominant nature of the activity. In the case of a university or an educational institution, the nature [Ed. : The word "nature"
has been emphasised in original.] of the activity is, ex hypothesi, education which is a service to the community. Ergo, the university is an industry. The error has crept in, if we may so say with great respect, in mixing up the numerical strength of the personnel with the nature of the activity.
96. Secondly, there are a number of other activities of the University Administration, demonstrably industrial which are severable although ancillary to the main cultural enterprise. For instance, a university may have a large printing press as a separate but considerable establishment. It may have a large fleet of transport buses with an army of running staff. It may have a tremendous administrative strength of officers and clerical cadres. It may have karamcharis of various hues. As Corpn. of Nagpur [Corpn. of the City of Nagpur v. Employees, AIR 1960 SC 675] has effectively ruled, these operations, viewed in severally or collectively, may be treated as industry. It would be strange, indeed, if a university has 50 transport buses, hiring drivers, conductors, cleaners and workshop technicians. How are they to be denied the benefits of the Act, especially when their work is separable from academic teaching, merely because the buses are owned by the same corporate personality? We find, with all defence, little force in this process of nullification of the industrial character of the University's multi-form operations."
(emphasis supplied)
27. As per the evidence by way of affidavit of DW-1 (Ex. DW- 1/A), the defendant company is engaged in the training of CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.28/37 aspirants of IIT-JEE (Indian Institute of Technology and Joint Entrance Examination). Neither the plaint, nor the written statement shed any light on what was the role/position of the plaintiff in the defendant company. The defendant was required to show that the role of the defendant was either manual, unskilled, skilled, technical, operational, clerical or supervisory in nature by leading evidence on this point. Apart from the assertion in the para no.2 of the preliminary objections of the written statement that the plaintiff is a 'workman', no evidence on this aspect has been led by the defendant. Accordingly, the issue no.1 is decided against the defendant and in favour of the plaintiff.
28. I shall proceed to decide the following issues together:
Issues No.2 & 3:
(2) Whether the plaintiff is entitled to recover the amount as claimed in the suit? (OPP) (3) If the answer to the issue no.2 is in the affirmative, as to whether the plaintiff is entitled to any interest? If so, its quantum and period? (OPP) CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.29/37
29. The onus to prove the above-mentioned issues was upon the plaintiff. It is the grievance of the plaintiff in the nutshell is that on 12.07.2005, he was called by Mr. Nilesh Shah, Chief Financial Officer of the defendant and was asked to resign with immediate effect without giving any reason or valid reason. That upon his resistance, he was given a termination letter with the allegation, "inspite of repeated warnings to you to improve your performance, you have not shown any improvement". It is his case that he was not issued any warning at any moment rather he was always appreciated for his good job and performance. The defendant violated the terms and conditions of the contract and service rules and therefore, a sum of Rs.5,54,504/- was due from the defendant. The defendant's case is that the plaintiff was terminated on 12.07.2005 on account of insubordination, disobedience and inappropriate behaviour, and as per, clause 8(c) of the service rules, the plaintiff was not entitled for any amount as claimed as the same were forfeited by him.
30. The plaintiff joined the defendant company on 01.09.2000 (Ex. DW-1/P1) and was confirmed on 01.01.2011 (Ex. DW-1/P2) CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.30/37 and his pay was also increased. The parties came to odds in July 2004, when the plaintiff applied for leave for two weeks to visit Singapore to meet his son with effect from 30.07.2004. The plaintiff's application for leave for two weeks was rejected by Bhawna Gupta, HoD, Academic Operations vide its letter dated 29.07.2004 (Ex. PW-1/D1) stating that there was no urgency on the part of the plaintiff to seek long leave of two weeks, however 4-5 days leave could be taken by him. The letter warned the plaintiff not to proceed on long leave, in which event disciplinary action would be taken against him. It is an admitted fact that thereafter the plaintiff proceeded for leave on 30.7.2008 till 08.08.2004 and rejoined his duties with the defendant only on 10.08.2004, thereby violating the express instructions of the Head of Department not to proceed on long leave. The said HoD of the plaintiff's department also wrote an 'inter office memo' dated 30.07.2004 (Ex. DW-1/1) to the HR department, recommending disciplinary action against the plaintiff. A show- cause notice dated 12.08.2004 (Ex. PW-1/D2) was also issued to the plaintiff by the HR department of the defendant company. Ultimately, as punishment for his unauthorized leave, the plaintiff CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.31/37 was asked to donate one week's salary to a blind school vide a letter dated 8.9.2004 (Ex. DW-1/2). The plaintiff complied with the said direction and deposited a sum a week's worth of salary amounting to Rs. 6,300/- to a blind school on 16.09.2004.
31. Thereafter, as per the defendant, the plaintiff still did not mend his ways towards his duties in his office or his seniors and claimed that the he had donated his salary as per his own wish for a social cause and it was not by way of punishment imposed by the defendant company. According to the defendant, the plaintiff was warned multiple times, however he did not desist from his behavior and ultimately he was terminated from service on 12.07.2005. The defendant has relied upon the clause 8(c) of the Service Rules to assert that the services of the plaintiff were validly terminated and no amount was due to him.
32. The defendant company has not placed on record any termination letterm which would support its claim that the plaintiff was terminated on disciplinary grounds. Admittedly, no show-cause or communication between the period 16.09.2004 CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.32/37 and 12.07.2005 has been placed on record by the defendant, which would support the defendant's version that the plaintiff was terminated on disciplinary grounds. It is an admitted fact that the plaintiff did go on an unauthorized period of leave from 20.07.204 till 08.08.2004 despite the clear directions from the head of the department not to do so, however that incident resulted in the defendant choosing to impose only a punishment of deposit of one week's salary with a blind school, which was deposited by the plaintiff. The said matter ended there as the punishment imposed was accepted and complied with by the plaintiff. If there were further acts of disobedience or insubordination by the plaintiff, there is no explanation from the side of the defendant as to why another show-cause notice was not issued to the plaintiff. No termination letter has also been placed on record, which would support the version of the defendant that the plaintiff had continued with his alleged objectionable behavior.
33. At this stage, the Service Rules of the defendant company (Ex. DW-1/P4) which governs the relationship between the CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.33/37 parties may be referred to. Clause 7 (a) provides that "normally" an employee's "services would not be terminated without giving three month's notice or three month's pay after confirmation". Clause 8 (c) of the service rules provides for the situation where the defendant company is entitled to waive the three months notice period, the contents of which are reproduced below:
"(c) However, in case of any misconduct, breach of rules or faith, long and frequent absence, non-performance of duty, indulging in any activity which creates or may create confusion, insecurity or any other such feeling, in the mind of the employees and/or the students of FIITJEE and/or which may defame or bring a bad name to FIITJEE by any of your actions, word of mouth, writing, interview with any organization or media or such other things or any such action on your part, which is detrimental to the interests of the students and FIITJEE, if the management, after giving you an opportunity to be heard, is satisfied that the continuation of your association with FIITJEE is unwarranted, you may be dismissed from service without giving any notice, or any compensation in lieu thereof. In case your services are terminated on account of disciplinary grounds, you shall be liable to compensate FIITJEE.
Termination/dismissal on disciplinary grounds shall be considered as equivalent to desertion of post."
[Emphasis supplied]
34. It is not the case of the defendant that prior to the termination of the plaintiff on 12.07.2005, it had served upon the plaintiff a three months' notice. The defendants case is that there were further actions of insubordination and indiscipline on the CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.34/37 part of the plaintiff, which entitled it not to give any three months' notice or pay in lieu of three months' notice to the defendant and directly terminated his services on 12.07.2005. In my considered opinion, the defendant has failed to prove the same. As already noted, no show-cause notice, letter or communication has been placed on record to show that after the imposition of the punishment of donation of one week's salary with a blind school, the plaintiff continued with unsatisfactory behavior. There is no explanation forthcoming as to why no show-cause was issued to the plaintiff by the defendant. Further, the clause 8 (c) of the service rules relied upon the defendant itself requires the defendant company to give an opportunity of being heard. There is no such pleading also on the part of the defendant that an opportunity of being heard was given to the plaintiff, hence the defendant was also not entitled to forfeit the benefits of the plaintiff . In light of the above reasons, I find that the plaintiff is entitled to the following amounts from the defendant: (i) Rs.95,250/- being three months' salary in lieu of the three month notice period; (ii) Rs.1,90,783/- being the plaintiff and defendants contribution towards his security fund; CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.35/37
(iii) Rs.8,923/- being the salary for the period 01.07.2015 till 12.07.2015; (iv) Rs.4,471/- being the Leave Travel Allowance from 2005 till 12.7.2005; (v) Rs.2,300/- being the earned leave encashment for 2/3 days. However, the plaintiff is not held entitled for the claim of increment arrears, since, it was the discretion of the defendant to give any increment to the plaintiff or not and there was no absolute right in favour of the plaintiff to claim such increment. Further, the plaintiff is also not entitled to any claim with respect to gratuity, as admittedly the plaintiff was terminated before completion of five years of service. Hence the issue no.2 is partly decided in favour of the plaintiff and the plaintiff is held entitled to recover a total amount of Rs.3,01,727/- from the defendant.
35. With respect to issue no.3, pertaining to rate of interest, the plaintiff has claimed a rate of interest of 12%, which I find is excessive. I deem it fit to allow a rate of interest of 9% from 04.04.2008, i.e. the date of sending of the legal notice by the plaintiff, since the plaintiff was terminated on 12.07.2005 and there is no explanation why the plaintiff took no action during CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.36/37 this period. Accordingly issue no.3 is decided in favour of the plaintiff and the plaintiff is held entitled to a rate of interest of 9% from 04.04.2008 till its realization.
Relief
36. That in view of the aforementioned reasons, the suit of the plaintiff is partly decreed for a sum of Rs.3,01,727/- along with interest @ 9% p.a. from 04.04.2008 till its realization. No order as to costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
JITEN Digitally signed
by JITEN MEHRA
MEHRA Date: 2024.03.21
16:30:10 +0530
Announced in the open court (JITEN MEHRA)
on 21.03.2024 ADJ-10/Central/THC
Delhi.
CS DJ No.611017/16 S.C. Wadhwa Vs. M/s. FIIT JEE Ltd. Page No.37/37