Delhi District Court
Sailendra Kumar vs . M/S Bennett Technologies Pvt. Ltd. on 21 October, 2021
Sailendra Kumar Vs. M/s Bennett Technologies Pvt. Ltd.
IN THE COURT OF KISHOR KUMAR, JSCC/ASCJ/GJ
(WEST),
TIS HAZARI COURTS, DELHI.
Suit No. 610490/2016
Salilendra Kumar.
S/o Mahendra Kumar,
R/o, Plot No. 267/4A,
GF-2, Kamra Apartment,
Sector-1, Vaishali,
GHAZIABAD-201010
...........Plaintiff
Versus
M/s Bennett Technologies Pvt. Ltd.
Regd. Office: House No. - C3A/115B,
Janakpuri, New Delhi-110058
Also at:-
Corporate office:845, Udyog Vihar
Phase-V, Gurgaon-122016
Haryana, India.
Through
Its Chairman/Managing Director/
Principal Officer.
...........Defendants
Date of Institution : 12.02.2016
Date of final arguments: 06.10.2021
Date of decision : 21.10.2021
Final decision : Dismissed
JUDGMENT
1. Plaintiff has filed the present suit for recovery of Rs.
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2,29,965/- along with pendent elite and future interest.
2. Brief facts are that plaintiff joined the defendant company as Senior Software Engineer on 18.01.2010 and worked till 10.04.2015. The last drawn salary of the plaintiff was Rs. 57890/- per month. The plaintiff worked to the total satisfaction of the defendant company. The defendant company forcibly got signed a non competing agreement dated 16.12.2013 from the plaintiff under duress. The plaintiff was made compelled to work for odd hours beyond the prescribed working hours. Accordingly, the plaintiff submitted his resignation on 11.02.2015 with one month notice. However, the plaintiff was relieved only on 10.04.2015 and that too when the plaintiff agreed to work for support staff of the company for at least 6 months on part time basis at the rate of 1500 per hour. The plaintiff provided part time services to the defendant company till June, 2015.
3. It is further alleged by the plaintiff that at the time of accepting resignation, defendant company again forced the plaintiff to sign another agreement dated 19.02.2015 containing illegal and unjustified restrictions not to join other companies. At the time of accepting the resignation in April, 2015, the defendant company assured the plaintiff to clear/settle his entire dues but only a sum of Rs. 74899 has been paid to the plaintiff . According to the plaintiff, he is also entitled to variable salary, leave encashment and consultation charges. The defendant kept Page no. 2 of 13 Sailendra Kumar Vs. M/s Bennett Technologies Pvt. Ltd.
the plaintiff lingered on that the dues be cleared soon. But the defendant company did not make the payment despite the e-mails of the plaintiff dated 08.10.2015, 09.10.2015, 13.10.2015, 16.10.2015, 20.10.2015 and 26.10.2015. Upon this the plaintiff got served a legal notice dated 30.12.2015 claiming a sum of Rs. 128270/- along with interest at the rate of 18% per annum and Rs. 100000/- as compensation. But still the defendant company did not make the payment hence the present suit filed by the plaintiff.
4. The defendant company filed its written statement submitting that plaintiff has filed the present suit as a counterblast to the FIR got lodged against the plaintiff and two other employees by the defendant u/s 408 IPC & 66(B) of the Information Technology Act. The plaintiff after due satisfaction agreed and accepted the full and final statement of his accounts. At no point of time the leave encashment, variable salary or consultancy charges were payable by the defendant to the plaintiff. No leave balance was left in account of plaintiff at the time he left the defendant company. The plaintiff had taken several unapproved and unplanned leaves. It is further stated by the defendant company that the plaintiff had claimed to have received a job opportunity in U.S and had refused to serve his notice period. During his notice period the plaintiff was habitually defaulty on his employment terms. The plaintiff and Page no. 3 of 13 Sailendra Kumar Vs. M/s Bennett Technologies Pvt. Ltd.
two other employees stole the defendant's source code and started their own company and manipulated the company documents causing damage to the defendant company. There was no restrictions on the plaintiff to join any other company however, the agreement was signed with him as an industry practice. Rest of the case of the plaintiff has been denied being wrong and incorrect.
5. The plaintiff by way of replication has denied the contents of the written statements of the defendant company and have reaffirmed and reiterated the contents of the plaint.
6. On the basis of pleadings of the parties, following issues have been framed for trial on dated 13.07.2016:-
1. Whether plaintiff is entitled to decree of Rs. 229965/- ? OPP
2. Whether plaintiff is entitled to interest @ 18% P.A, pendent lite and future interest?OPP
3. Relief.
7. In order to prove his case, the plaintiff examined himself as PW1 by way of his affidavit in evidence Ex. PW1/A. He has relied on the following documents:-
(1) Ex. PW1/1 (colly) (running into five pages) i.e, computer generated appointment letter dated 07.01.2008 is de-exhibited and Now marked as Page no. 4 of 13 Sailendra Kumar Vs. M/s Bennett Technologies Pvt. Ltd.
Mark- A. ( objected to as mode of proof).
(2) Ex. PW1/2 (colly) (running into 5 pages) I.e, statement of account.
(3) Ex. PW1/3 (colly) (running into five pages) i.e, copy of Performance Review for February 2015 (objected to as mode of proof) is de-
exhibited and marked as Mark-B. (4) Ex. PW1/4 i.e, copy of Noncompeting agreement dated 16.12.2013, is de-exhibited and now marked as Mark-C. (objected to as mode of proof).
(5) Ex. PW1/5 (colly) (running into three pages) i.e, copy of resignation request letter and relieving letter. (objected to as mode of proof) is de-exhibited and marked as Mark-D. (6) Ex. PW1/6 (colly) (running into nine pages) I.e, computer generated copies of SMS exchanged between plaintiff and defendant company (objected to as mode of proof).
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(7) Ex. PW1/7 (colly) (running into tow pages) i.e, Copy of resignation acceptance and non compete relaxation agreement dated 19.02.2015 (objected to as mode of proof) is de-exhibited and now Mark-E. (8) Ex. PW1/8 (colly.) (running into six pages) i.e, computer generated E-mails dated 08.10.2015, 09.10.2015, 13.10.2015, 16.10.2015, 20.10.2015 and 26.10.2015 (objected to as mode of proof).
(9) Ex. PW1/9 I.e, computer print out of details of Leave Balance. (objected to as mode of proof).
(10) Ex. PW1/10 (colly) (running into two pages) I.e, copy E-mail dated 26.10.2015. (objected to as mode of proof).
(11) Ex. PW1/11 (colly) (running into four pages) i.e, Copy of FIR dated 07.08.2015 is de-exhibited and marked as Mark-F. (12) Ex. PW1/12 I.e, Representation letter dated 30.10.2015. (objected to as mode of proof) is now Page no. 6 of 13 Sailendra Kumar Vs. M/s Bennett Technologies Pvt. Ltd.
marked as mark-G. (13) Ex. PW1/13 (colly) I.e, Legal notice dated 30.12.2015.
(14) Ex. PW1/14 i.e, A. D. Card.
(15) Ex. PW1/15 Certificate U/S 65B of Indian Evidence Act.
(16) Ex. PW1/16 i.e, (colly) (running into two pages) i.e, Computer generated details of defendant's company. (objected to as mode of proof).
(17) Ex. PW1/17 i.e (colly) (running into four pages) i.e, Computer generated details of defendant's company.
(18) Ex. PW1/18 i.e, Computer generated details of UNEECOPS Technologies company.
(19) Ex.PW1/19 i.e, Computer generated details of ADRENALIN E-Systems Ltd company.
(20) Ex. PW1/20 I.e, Computer generated details Page no. 7 of 13 Sailendra Kumar Vs. M/s Bennett Technologies Pvt. Ltd.
of Approval of Leave request of plaintiff.
(21) Ex. PW1/21 (colly) (running into five pages) i.e, Computer generated details of punctuality and sincerity towards plaintiff's work.
8. The plaintiff/PW1 has been cross-examined by the Ld. Counsel for the defendant company at length.
9. The defendant company has not led any evidence despite opportunities granted and ultimately on 28.02.2020 the defendant evidence was closed.
10. I have heard Ld. Counsel for the plaintiff, Ld. Counsel for the defendant as well as the AR for the defendant and have carefully gone through the record.
11. My issue wise findings as follows:-
Issue No. 1 & 2"1. Whether plaintiff is entitled to decree of Rs. 229965/- ? OPP".
"2. Whether plaintiff is entitled to interest @ 18% P.A, pendent lite and future interest?OPP".
12. Onus of proving both these issues has been on the plaintiff.
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The plaintiff has been put a question by Ld. Counsel for the defendant as to what is the criteria for rating and assessment for variable pay. To this the plaintiff/PW1 has answered "based upon the performance my rating and assessment was done for the purpose of variable pay. The assessment of my performance was done on the basis of filling up of a form, the form is already on record and is marked as Mark-B from page no. 24 to 28."
13. I have gone through the document Mark-B from page no. 24 to 28 on the file but I am failed to understand as to how the plaintiff is assessing his claim for variable pay as claimed by him from the defendant company. Even if it is assumed that the plaintiff worked hard, it doesn't make him entitled to some extra/variable pay in comparison to other employees. Every employee is supposed to work hard irrespective of any incentive in this regard. Moreover, the plaintiff has not been able to prove or place on record any policy of defendant company that the employee like the plaintiff were entitled to variable pay on the basis of document Mark-B. The plaintiff has showed his knowledge regarding the variable pay that it was based on the performance of the employee and paid on the basis of performance.
14. The plaintiff/PW1 has been shown the CTC sheet (Cost to the Company CTC sheet) Mark-A page no 18 that it is clearly Page no. 9 of 13 Sailendra Kumar Vs. M/s Bennett Technologies Pvt. Ltd.
mentioned that variable pay is subject to HR Policy. To this question the plaintiff answered that no HR Policy was shared with them. As communicated to them, variable pay is totally based on performance review and ratings. I have seen the CTC sheet at page 18 and on it is mentioned that the variable salary will be paid as per HR Policy.
15. Plaintiff/PW1 has been further put a question as to why he accepted full and final statement Mark- E (page No. 43). To this the plaintiff has answered that "when I received full and final statement, after seeing that I called to Mr. Mantu regarding the said statement and asked for the variable pay, leave encashment, consultancy charges amount. He had not given the clear answer and told us talk to Mr. Ranjan. Then I called Mr. Ranjan, Director, He had asked variable pay, leave encashment, consultancy charges amount was not included in the full and final settlement amount and assured that the same would be cleared later on. The plaintiff has not filed any written proof of the conversation which has been done over the phone. The phone call was made immediately within a day or two after receiving the statement. The plaintiff further deposed that his leave balance is already on record.
16. To the question as to why the plaintiff/PW1 demanded his dues after 5 months after accepting the full and final statement, to Page no. 10 of 13 Sailendra Kumar Vs. M/s Bennett Technologies Pvt. Ltd.
this the plaintiff has deposed that Mr. Ranjan Soni verbally assured to give the demanded amount in few days. After that PW1 was implicated in a false criminal case by the defendant company. Thereafter PW1 got busy in that criminal case. After that PW1 demanded variable pay, leave encashment and consultancy charges.
17. So far as, the claim of the plaintiff for consultancy charges is concerned, the plaintiff has deposed that the terms were settled verbally. The defendant company had suggested some dates to work and the same were communicated over official e-mail to Mr. Ranjan Soni and the official e-mail Id of PW1.
18. The plaintiff in Para No. 8 of the plaint has stated that the amount of Rs. 74889.50/- given to him by the defendant company did not include payment towards variable salary, leave encashment and consultancy charges. However, the plaintiff has not been able to convince the court that he was entitled to the variable salary based on his performance.
19. There is an e-mail from the plaintiff to various persons of the defendant company dated 10.04.2015 whereby the plaintiff has been giving good bye and thanks. He has not raised any finger towards anyone of the defendant company that his dues are still required to be cleared on various counts as claimed by Page no. 11 of 13 Sailendra Kumar Vs. M/s Bennett Technologies Pvt. Ltd.
the plaintiff in the present case. Furthermore, as per Annexure-B I.e, full and final settlement form which is computer generated, on it, it is mentioned that "I hereby declare that after receiving this amount I do not have any dues pending with the company."
20. The plaintiff herein has claimed a sum of Rs. 100000/- on account of harassment and humiliation. It is an admitted fact that the plaintiff filed the present suit against the defendant company only after they got an FIR registered against the plaintiff u/s 408 IPC and u/s66(B) of the IT Act. The filing of the FIR against the plaintiff cannot be termed as a tool of harassment unless and until the plaintiff is acquitted in that FIR case and the concerned competent court held that plaintiff has been falsely implicated in the criminal case at the instance of the defendant company. Here in the present suit the plaintiff has not been able to prove to the satisfaction of the court as to how he has been harassed and humiliated by the defendant company.
21. Mere writing e-mails and sending legal notice to the defendant company would not have been suffice to claim the demanded amount as claimed by the plaintiff in the present suit. In answer to the mail Ex. PW1/8 dated 08.10.2015, the HR department of the defendant company already clarified that they have already made all the payments in accordance with the employment terms and full and final settlement of your bank Page no. 12 of 13 Sailendra Kumar Vs. M/s Bennett Technologies Pvt. Ltd.
account. The calculation/assessment done by the plaintiff is based on conjuncture and surmises without any legal basis.
22. Since the plaintiff is hereby held to be not entitled to any amount as claimed by him on the heads of variable salary and consultancy charges as well as the compensation amount of Rs. 100000/-, the plaintiff is at all not entitled to any interest on these amounts.
23. In view of the above it is held that plaintiff has not been successful in proving his case on the principles of preponderance of probabilities. Both these issues are accordingly decided against the plaintiff and in favor of the defendant company.
Relief
24. In view of my discussion on issues hereinabove, suit of the plaintiff is hereby dismissed with costs.
25. Decree sheet be prepared accordingly.
26. File be consigned to the Record Room. KISHOR KUMAR Pronounced in the open court (Kishor Kumar) on 21.10.2021 JSCC/ASCJ/GJ (WEST) Digitally signed by KISHOR Delhi : KUMAR Date:
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