Delhi District Court
Ms. Rakhi Gupta vs M/S. K.L. Seth & Associates on 26 July, 2017
IN THE COURT OF SH. JITENDRA KUMAR MISHRA, ADDITIONAL
DISTRICT JUDGE - 01, PATIALA HOUSE COURTS, NEW DELHI
DISTRICT, NEW DELHI
CS No. 56643/16
Ms. Rakhi Gupta
D/o. Shri R.N. Gupta,
1761, S.P. Mukherjee Marg
Behind Dist. Fire Station
Near Novelty Cinema,
Delhi-110092. ......... Plaintiff.
Versus
M/s. K.L. Seth & Associates
Chartered Accountants
106, Nilgiri Apartments,
9, Barakhamba Road,
New Delhi - 110 001
........ Defendant
Suit presented On : 17.01.2014
Arguments Concluded On : 13.07.2017, 26.07.2017
Judgment Pronounced On : 26.07.2017
JUDGMENT
1. This is a suit for recovery of Rs. 13,24,737/- filed by the Plaintiff.
2. Briefly the facts of the case are:-
(a) The plaintiff being a Chartered Accountant joined the defendant as 'Sr. Manager' in its Audit & Assurance Division on May 30th, 2011 vide offer letter dated May 20th, 2011 issued by defendant on a monthly salary of Rs.69,000/- per month.
Rs.72,000/- per annum was also to be paid to the plaintiff as performance linked incentive on completion of 12 th months service and from 1st June 2012, salary of the plaintiff was increased to CS no. 56643/16 Rakhi Gupta vs M/s K.L. Seth & Associates Page no. 1 of 10 Rs.75,000/- per month. Again Rs. 72,000/- per annum was also to be paid to the plaintiff as performance linked incentive. The working hours were & are 9.30 am to 6.30 pm with ½ hour lunch.
(b) When the plaintiff joined the defendant, her monthly salary as settled was Rs.75,000/-. The defendant deducted Rs. 6,000/- per month for 12 months as the defendant called it 'Retention Money' so as to make Rs.72,000/- in a year from the salary of the plaintiff and paid 'as performance linked incentive'.
(c) In the following year, the monthly salary was increased to Rs.81,000/- but it was paid at Rs.75,000/- p.m. again making a deduction of Rs.6,000/- p.m. from the salary of the plaintiff so as to make Rs.72,000/- in a year and paid as 'performance linked incentive.' Rs.72,000/- per annum as performance linked incentive was not paid from the account of the defendant. Rather, it was already a deduction of Rs.6,000/- per month made from the monthly salary of the plaintiff in all the years. This practice of deducting Rs.6,000/- per month from the salary of the plaintiff and making a total of Rs.72,000/- in a year and thereafter paying this Rs.72,000/- after the year as performance linked incentive was highly illegal & unlawful.
(d) Due to inappropriate action and behavior of Mr. Naveen Chawla, Director of Audit & Assurance Division and also a working partner of the defendant, there was no alternative left with the plaintiff but to tender resignation vide her Resignation Letter dated 5th August, 2013 and the same expired on 5 th September, 2013. Till then the plaintiff worked with the defendant. The defendant did not pay salary to the plaintiff from 1st August to 5th September, 2013 @ CS no. 56643/16 Rakhi Gupta vs M/s K.L. Seth & Associates Page no. 2 of 10 Rs. 75,000/- per month besides retention money of Rs.6,000/- per month as already deducted.
(e) From the date of joining the defendant, the plaintiff has worked overtime as per the directions of Mr. Chawla after 6.30 pm at an average of 2 hours per day. The plaintiff has also worked even on some Sundays and holidays. The plaintiff worked 6 or 7 hours as overtime when the plaintiff went for outstation audits for a couple of days. The plaintiff is entitled to claim overtime as part of her salary.
(f) It is alleged that 26 days were taken as working days of a month and rate of overtime per hour is double the normal rate of salary of an hour.
(g) From 30th May 2011 to 30th May 2012, the hours of overtime done by the plaintiff comes to 624 hours. In the next year i.e from 1st June, 2012 to 30th May 2013, the hours of overtime done comes to 624 hours. From 1st June 2013 till 5th September 2013, the hours of overtime done comes to 166 hours. The accurate details of incoming & outgoing timings of all the employees including the plaintiff is monitored / maintained by the 'Key Punching Machine' maintained by the defendants, unless tempered with.
(h) The plaintiff always demanded the overtime with her monthly salary but defendant always put off the matter saying that it would be paid after the year. The next year, the defendant put off the matter saying that defendant was in loss and the defendant would see to the payment of overtime later on. Rs.2,500/- per month for the period 1st April, 2013 to 31st July, 2013 (4 months) CS no. 56643/16 Rakhi Gupta vs M/s K.L. Seth & Associates Page no. 3 of 10 aggregating to Rs.10,000/- were deducted from the salary of the plaintiff on account of TDS. TDS Certificate has been issued to the plaintiff.
(i) At the time of leaving the firm on 5 th September, 2013, plaintiff asked the defendant for the payment of the amount of total overtime and the arrears of salary including retention money but she was assured that all payments shall be made to her within a week thereof. However, despite sending a number of emails to all the working partners and the HR department, the amount has not been released to the plaintiff. A registered notice dated 02.12.2013 was also served to the defendant but the defendant did not reply to the said notice.
(j) Now the plaintiff is entitled for the following sum from the defendant:
(a) Salary for the month of August, 2013 Rs. 81,000/- (incl. retention money of Rs.6,000/-)
(b) Salary for the period 1 st September, 2013 Rs. 15,577/-
to 5th September, 2013
(c) Retention Money for the period 1 st June, Rs. 72,000/- 2012 to 30th May, 2013
(d) Retention Money for the period 1 st June, Rs. 12,000/- 2013 to 31st July, 2013
(e) Overtime for 1st year i.e 30th May 2011 to Rs. 3,99,996/- 30th May, 2012
(f) Overtime for 2nd year i.e 1st June 2012 to Rs. 4,32,000/-
30th May, 2013
(g) Overtime for the period 1st June 2013 to Rs. 1,14,923/- 5th September, 2013
(h) Total amount of interest @18% per annum Rs. 1,97,241/- From the date of interest falling due till the CS no. 56643/16 Rakhi Gupta vs M/s K.L. Seth & Associates Page no. 4 of 10 Date of filing of the suit itemwise Rs.13,24,737/-
3. Written statement filed by the defendant. It is alleged that the plaintiff joined defendant on 30 th May 2011 and worked for a period of two years and three months (approximately) and then tendered her resignation on 05.08.2013 w.e.f. 05.9.2013. The resignation of the plaintiff was accepted by the defendant in good faith. Plaintiff was appointed as "SR. Manager" in Audit & Assurance Division in the Defendant's organization. It is further submitted that the performance of the plaintiff was satisfactory in the initial period but later her approach became lethargic and she was not able to deliver the results expected from her at the senior position being held by her. The defendant did try to counsel the plaintiff to improve her performance but all in vain. The plaintiff was not able to manage and complete assigned work in the time frame given resulting in complaints. Being a professional CA, she was aware that strict time deadline(s) (both statutory and of clients) are required to be met in this segment of business, failing which the penal provisions became applicable, besides the loss of goodwill, business etc. 3.1 It is further alleged that the plaintiff was least concerned with the statutory dates for various compliances/deadlines fixed resulting in loss of business to the defendant. Despite all this, the defendant encouraged and gave her a free hand to improve the performance. Finally, on her own sweet will, the plaintiff tendered her resignation on 05.08.2013 and even this was accepted by the defendant in good faith. Defendant has never refused to pay the legitimate dues of the plaintiff as was only waiting for the return of the Managing Partner/Concerned Person who was travelling at the relevant time and was not available. To the notice sent by the plaintiff, the defendant gave a detailed reply on 11.01.2014 wherein it explained the factual and correct CS no. 56643/16 Rakhi Gupta vs M/s K.L. Seth & Associates Page no. 5 of 10 position. Salary and performance linked incentive payable to the plaintiff are admitted facts. It is further alleged that no deduction or retention of any amount as alleged was made by the defendant. Deduction of TDS as statutory compliance is also an admitted fact. The full and final amount of Rs. 87,500/- as salary for the month of August, 2013 and Rs.12,500/- as salary from 1st September, 2013 to 5th September, 2013 was duly intimated to the Plaintiff and she was requested to collect the cheque from the accounts department of the Defendant after completing necessary formalties. However, the said cheque was not picked by the Plaintiff. The Defendant is ready to pay the said amount to the Plaintiff. Rest of the contents of the Plaint are denied.
4. Replication to the written statement filed wherein the averments made in the written statement are denied and the averments made in the Plaintiff are reiterated as affirmed. It is denied that only Rs. 25,500/- due to the Plaintiff.
5. My Ld. predecessor vide order dated 09.09.2014 framed following issues:
1. Whether the plaintiff is entitled for recovery of amount of Rs.13,24,737/- as arrears of salary and overtime as prayed for? OPP
2. If the issue No.1 is proved in affirmative, whether the plaintiff is entitled of future interest & if so, at what rate? OPP
3. Relief.
6. To prove her case the plaintiff has examined herself as PW-1 and tendered her evidence by way of affidavit Ex. PW1/A. She further relied upon the following documents in her evidence :
➢ The photocopy of Offer of Appointment is Ex.PW1/1. ➢ True copies of e-mails dated 07.10.2013 is Ex. PW1/2. ➢ E-mail dated 11.10.2013 is Ex. PW1/3.
CS no. 56643/16
Rakhi Gupta vs M/s K.L. Seth & Associates Page no. 6 of 10
➢ E-mail dated 14.10.2013 is Ex.PW1/4.
➢ Photocopy of notice is Ex. PW1/5.
➢ Postal receipt is Ex. PW1/6.
➢ Registered AD is Ex. PW1/7.
➢ E-mail dated 02.02.2012 is Ex. PW1/8.
➢ E-mail dated 20.03.2012 is Ex. PW1/9.
➢ E-mail dated 19.03.2012 is Ex. PW1/10.
➢ E-mail dated 21.03.2012 is Ex. PW1/11.
➢ E-mail dated 01.12.2012 is Ex. PW1/12.
➢ E-mail dated 18.12.2012 is Ex. PW1/13.
➢ E-mail dated 28.01.2013 is Ex. PW1/14.
➢ E-mail dated 14.03.2013 is Ex. PW1/15.
➢ E-mail dated 22.03.2013 is Ex. PW1/16.
➢ E-mail dated 11.06.2013 is Ex. PW1/17.
➢ E-mail dated 29.06.2013 is Ex. PW1/18.
➢ Intra mails are Ex. PW1/19 (colly).
➢ E-mail dated 13.08.2012 is Ex. PW1/20.
➢ E-mail dated 19.08.2013 is Ex.PW1/21. (Ex.PW1/2 to Ex.
PW1/4, Ex. PW1/8 to Ex. PW1/21 are objected to as to the mode of proof).
6.1 She was cross-examined by counsel for the defendant.
Thereafter by separate statement made by the plaintiff, plaintiff's evidence was closed. In defence, the defendant examined Sh. Naveen Chawla tendered his evidence by way of affidavit Ex. DW1/A. He relied upon letter of authority dated 01.12.2016 as Ex. DW1/1; copy of the TDS certificate as Ex DW1/2; reply dated 11.01.2014 as Ex. DW1/3 and the postal receipt and proof of delivery are exhibited as EX. DW-1/4. He was cross examined by Ld. counsel for the plaintiff. Thereafter, by separate statement, counsel for the defendant closed defendant's evidence.
7. I have gone through the entire records of the case including pleadings of the parties, evidence led by the parties and documents proved by the parties during trial.
CS no. 56643/16Rakhi Gupta vs M/s K.L. Seth & Associates Page no. 7 of 10
8. In this case part arguments were heard on 23.07.2017. Thereafter, this case was listed on 25.07.2017 for further arguments. On 25.07.2017 there was no appearance on behalf of either of the parties. In such circumstances case was adjourned for 26.07.2017 for arguments. On 26.07.2017 none appeared on behalf of either of the parties despite wait. Therefore, this court as per material available on record and arguments already heard as advanced by the parties judgment is being passed hereunder.
9. My issue wise findings are:-
ISSUE NO.1
1. Whether the plaintiff is entitled for recovery of amount of Rs.13,24,737/- as arrears of salary and overtime as prayed for? OPP 9.1 Onus to prove issue no. 1 is upon the plaintiff. Ex. PW1/A is similar to the averments made in the plaint. During cross examination plaintiff admitted that the appointment letter Ex. PW1/1 does not contain clause as to over time and retention money. She further admits that Ex. PW1/1 depicts about her monthly salary of Rs.69,000/- per month and performance linked incentive of Rs.72,000/- per annum. She further admits that for initial one year she had not written any communication to the defendant about the correction of the terms of appointment letter as to salary and retention money.
She further admits that she was paid monthly salary of Rs.69,000/- and Rs.72,000/- as performance linked incentive for initial one year. She further admitted that for the next year she was getting Rs.75,000/- per month from the defendant. She further admitted that she has not filed on record any document to show that after one year her salary was increased to Rs.81,000/-. She has further admitted that defendant paid her Rs.75,000/- per month till July, 2013. She further admitted that she had received CS no. 56643/16 Rakhi Gupta vs M/s K.L. Seth & Associates Page no. 8 of 10 Rs.84,500/- from defendant in the Court being the salary for August 2013 upto 05.09.2013. She has further admitted that she was appointed as Senior Manager and the nature of her job was to conduct statutory audits, accounting and statutory compliances of the clients of the defendant. She further admitted that during her course of employment she had never made any written demand for overtime from the defendant. She did not know whether any of the employees of the defendant ever paid overtime charges. She admitted that she had been given TDS certificate for the period of her employment with defendant. She admitted that the defendant replied to her legal notice.
9.2 During cross examination of DW1 a suggestion was given by the plaintiff that salary of Rs.69,000/- per month as mentioned in Ex. PW1/1 has been wrongly given and Rs.6000/- per month has been deducted as retention money, but the suggestion is denied. Thus, during cross examination plaintiff admitted that she has received TDS certificate. She further admitted that she had received Rs.84,500/- from defendant in Court as per clause (a) and (b) of para no. 7 of Ex. PW1/1. She has not disputed about the contents of Ex. PW1/1. It is not her case that she was not given salary as per terms of Ex PW1/1. Thus, the plaintiff has joined the service of the defendant only after she understood the terms of Ex. PW1/1 and when she had given her consent for employment in terms of Ex. PW1/1. It is also her admitted case that whatever salary was agreed in terms of Ex. PW1/1 she had received the same. She could not prove that there was any agreement regarding payment of over time charges. She has admitted that no other employee was given overtime charges. Therefore, there was no discrimination against the plaintiff. She has also received Rs.84,500/- i.e. her balance salary to the date when her resignation was accepted. Therefore,
(e), (f) and (g) of para no. 7 of Ex. PW1/1 is not able to be proved by the CS no. 56643/16 Rakhi Gupta vs M/s K.L. Seth & Associates Page no. 9 of 10 plaintiff.
9.3 In para 16 of Ex. DW1/A it is deposed by DW1 that retention money for the first year paid in lumpsum and second year paid on monthly basis at the request of plaintiff was duly paid to her. Similar deposition has been given in cross examination by DW1. Therefore the defendant has successfully proved the payment of retention money i.e. (c) & (d) of para no.7 of Ex. PW1/1. Therefore, plaintiff is not able to discharge the onus to prove issue no.1, hence, this issue is answered against the plaintiff.
ISSUE NO. 22. If the issue No.1 is proved in affirmative, whether the plaintiff is entitled of future interest & if so, at what rate? OPP
10. Onus to prove issue no. 2 was upon plaintiff. Since plaintiff is not able to discharge the onus to prove issue no. 1, thus this issue is also answered against the plaintiff. Therefore, there is no question of interest and this issue is also against the plaintiff.
RELIEF
11. In view of the discussions and observations made hereinabove, the suit of the plaintiff is dismissed. No order as to the cost. Decree sheet be prepared accordingly.
File be consigned to record room.
Pronounced in open Court on 26.07.2017 (Jitendra Kr. Mishra) Additional District Judge 01.
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