Delhi District Court
Civil Suit No. 55453/16 vs M/S Orient Paper & Industries Limited on 18 October, 2018
IN THE COURT OF PRAVEEN KUMAR: ADDITIONAL
DISTRICT JUDGE 05 :NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI.
(FIVE YEAR OLD CASE)
Civil Suit No. 55453/16
Kamal Nayyar
400, II Floor,
Bhera Enclave
Paschim Vihar,
New Delhi110087. ................Plaintiff
Versus
1.M/s Orient Paper & Industries Limited 13th Floor, Birla Building, 9/1, R N Mukherjee Road, Kolkata700001.
Also at :
C K Birla Group, 7th Floor, Birla Tower, 25, Barakhamba Road, New Delhi110001.
2. M L Pachisia, Managing Director, Orient Paper & Industries Limited 13th Floor, Birla Building, 9/1, R N Mukherjee Road, Kolkata700001. C K Birla Group.
Also at:
8t Floor, Birla Tower 25, Barakhamba Road, New Delhi110001.
3. Mr. Eric Rajendran, CS No.55453/16 Page 1 of 10 Kamal Nayyar vs. M/s Orient Paper & Industries Limited and others HeadGroup HR, C K Birla Group, 7th Floor, Birla Tower, 25, Barakhamba Road, New Delhi110001. ...................Defendants Date of institution of the case : 02.07.2012 Date of arguments : 15.10.2018 Date of judgment : 18.10.2018 JUDGMENT :
1. The plaintiff has filed the present suit against the defendants for recovery of an amount of Rs.14,48,215/ with pendente lite and future interest.
2. The case of the plaintiff, in brief, is that the plaintiff was appointed as Vice PresidentCorporate (HR) vide appointment letter dated 13.04.2009 at a monthly salary of Rs.1,19,000/ along with 15% of the basic salary as Super Annuity Allowance, Rs.4,20,000/ as annual performance linked compensation, subject to achievement of agreed targets and performance parameters and other benefits like medical, LTA, gratuity, provident Fund etc. As per plaintiff, defendants have failed to pay him any performance linked compensation despite appreciation. According to plaintiff, defendants compelled the plaintiff to resign from the post and his due benefits were also withheld by the defendants. Plaintiff has prayed that suit of the plaintiff be decreed with interest.
3. Defendant no.1 and defendant no.2 & 3 have filed separate written statements and have contested the suit of the plaintiff. Defendant no.1 has taken preliminary objections (i) that plaintiff has concealed CS No.55453/16 Page 2 of 10 Kamal Nayyar vs. M/s Orient Paper & Industries Limited and others the material facts; (ii) that there is no cause of action for filing the present suit; (iii) that suit has not been valued properly for the purposes of court fee and (iv) that the suit is bad for misjoinder of parties and nonjoinder of necessary parties. On merits, defendant no.1 has admitted that plaintiff was appointed to the post of Vice President (Corporate HR) vide appointment letter dated 13.4.2009. It is also admitted that plaintiff was made entitled to draw a monthly salary of Rs.1,19,000/ inclusive of basic salary, special allowances, house rent allowances and car allowance, from the defendant no.1. Defendants have admitted that appointment letter provides that plaintiff will be entitled to an annual performance linked compensation of upto Rs.4,20,000/ only subject to achievement of agreed targets and performance parameters. However, plaintiff failed to achieve the said agreed targets and the performance parameters. As per defendant no.1, plaintiff submitted the LTA bill after his resignation from the service. As per defendant no.1, plaintiff was entitled to an aggregated amount of Rs.2,76,857/ from the defendant no.1 on account of leave travel allowance, medical reimbursement, notice pay and bonus and the cheque of the said amount was dispatched to the plaintiff. Defendant no.1 has prayed that suit of the plaintiff be dismissed with costs.
4. In the written statement filed on behalf of defendant no.2 and 3 jointly, preliminary objection have been taken that no cause of action lies against defendant no.2 and 3 as they are merely employees of the defendant no.1. On merits, these defendants have reiterated the same defences as taken by defendant no.1
5. Plaintiff has filed separate replications to the written CS No.55453/16 Page 3 of 10 Kamal Nayyar vs. M/s Orient Paper & Industries Limited and others statements filed on behalf of defendant no.1 and defendant no.2 & 3 and have reiterated the contents of the plaint.
6. On the pleadings of the parties, following issues were framed on 22.11.2014 by Ld. Predecessor of this Court :
1. Whether present suit has been properly valued for the purpose of court fee and jurisdiction ? OPP
2. Whether present suit is without cause of action ? OPD
3. Whether plaintiff is entitled for recovery annual performance link compensation as alleged ? OPP
4. Whether plaintiff is entitled for the reimbursement of LTC, Medical and other expenses as alleged ? OPP
5. Whether plaintiff is entitled for recovery of suit amount as prayed ? OPP
6. Whether plaintiff is entitled for the interest over the suit amount, if so, at what rate and for what period ? OPP
7. Relief.
7. In order to prove his case, plaintiff has examined himself as PW1. He has deposed on the lines of the averments made in the plaint. He has proved the appointment letter as Ex.PW1/1; copies of the emails as Ex.PW1/2; the report on ranking of the two divisions by Mercer as Ex.PW1/3; postal receipt of sending the LTA bill, copy of medical reimbursement and the approval offered by the defendant as Ex.PW1/4; the email dated 1.2.2012 as Ex.PW1/5; legal notice dated 3.4.2012 as Ex.PW1/6; cheque along with cover letter as Ex.PW1/7; reply dated 2.5.2012 to the legal notice as Ex.PW1/8 and email and copy of acknowledgment of receiving of laptop as Ex.PW1/9. During his cross examination, PW1 has denied the suggestion that he did not achieve the CS No.55453/16 Page 4 of 10 Kamal Nayyar vs. M/s Orient Paper & Industries Limited and others targets on time.
8. Defendants have not led any evidence in support of their defence.
9. I have heard arguments in the present case. I have also gone through the written submissions filed on behalf of the plaintiff.
10. I have gone through the file. My issuewise findings are as under :
Issue No.1 :
11. Nothing has been brought on record by the defendants that no proper court fee has been paid by the plaintiff. A perusal of the judicial record shows that plaintiff has paid the court fee for an amount of Rs.17,000/ and the same is on record. Hence, this issue is decided in favour of the plaintiff and against the defendants. Issue No.2:
12. The onus to prove this issue is on the defendants. However, defendants have not led any evidence to prove this issue. Hence, this issue is decided in favour of the plaintiff and against the defendants. Issue no.3 :
13. The onus to prove this issue is on the plaintiff. PW1 has proved the appointment letterEx.PW1/1. The relevant portion of the said letter is reproduced hereunder for the sake of convenience:
"...In addition to the above, an annual performance linked compensation of up to Rs.4,20,000/ will be paid to you subject to achievement of agreed targets and performance parameters..."
14. The aforesaid letterEx.PW1/1 is not in dispute being issued on behalf of defendant no.1 under the signature of defendant no.2 and duly accepted CS No.55453/16 Page 5 of 10 Kamal Nayyar vs. M/s Orient Paper & Industries Limited and others by the plaintiff. A careful perusal of this clause shows that a maximum limit of the compensation was fixed to the tune of Rs.4,20,000/ and the words 'will be' suggests that defendants were liable to pay such compensation to the plaintiff on the achievement of agreed targets and performance parameters. PW1 has averred in his evidence by way of affidavit that the defendants no.2 and 3 had assured him that the targets will be decided mutually and there will be regular performance feedback session in this regard. PW1 has further testified that defendant no.3 assured him that the annual performance linked variable compensation will be paid as a matter of salary part on completion of every year as there cannot be written targets for the plaintiff depending upon the nature of his job. Plaintiff has further testified that he worked as a sincere dedicated employee during his entire tenure and completed all the tasks assigned to him by the defendants and he never gave any chance of complaint against him. PW1 has also proved two emailsEx.PW1/2 (colly) wherein he has been appreciated for his work by the defendant no.2. As per plaintiff, he was taking care of the three divisions of defendant no.1 and as per the report Ex.PW1/3, two divisions of the plaintiff secured the top first and third division amongst all the group companies of the C K Birla Group. On the other hand, defendants have not brought on record even a single document that the performance of the plaintiff was not upto to the mark or that he was ever given any memo/warning/censure etc relating to his performance with the defendants for his official duties. PW1 has not been crossexamined qua his performance during his service with the defendants. There is no evidence to the effect that plaintiff had not achieved the mutually agreed targets and other tasks given to him during his service. There is nothing on record that CS No.55453/16 Page 6 of 10 Kamal Nayyar vs. M/s Orient Paper & Industries Limited and others the plaintiff had not achieved the agreed targets or his performance was not upto the mark. Plaintiff was also given annual increments in the year 2010 and 2011. Taking into consideration all these facts and circumstances, I am of the view that the testimony of the PW1 is reliable and trustworthy. Thus, plaintiff is entitled to the full amount of the compensation, as mentioned in the appointment letterExt.PW1/1. However, as plaintiff has performed the service with the defendant no.1 company for a period of 2 years, 6 months and 19 days, the figure of the annual performance linked compensation comes to Rs.10,72,167/. Hence, this issue is decided accordingly.
Issue No.4 :
15. The onus to prove this issue is on the plaintiff. Plaintiff has deposed that bill of Rs.1,70,000/ as LTA and the bill of Rs.47,930/ as medical reimbursement were sent to the defendant no.1 through speed post dated 10.01.2012 and he has proved the documents in this regard as Ex.PW1/4 (collectively). Defendant no.1, in para XVIII of the written statement, has pleaded that the claim on account of unpaid leave travel allowance and medical reimbursement was not lodged by the plaintiff in due course of time or in accordance with the conditions of service regulating employment of the plaintiff. It is further stated in the same para to the effect, "had the plaintiff been entitled to any amount on account of unpaid leave travel allowance or medical reimbursement, the plaintiff ought to have lodged necessary claim in proper format within the time stipulated under the conditions of service and by consciously choosing not to lodge such claim within the time so stipulated, the plaintiff consciously waived his right". Further, defendant no.1, in para 3 of the written statement, has CS No.55453/16 Page 7 of 10 Kamal Nayyar vs. M/s Orient Paper & Industries Limited and others averred that "The defendants repeat and reiterate that the plaintiff was entitled to an aggregated amount of Rs.2,76,857/ from the defendant no.1 on account of leave travel allowance, medical reimbursement, notice pay and bonus..." Thus, on the one hand, defendant has stated that plaintiff is not entitled to the amount of LTA and medical reimbursement and on the other hand, defendants are admitting that plaintiff is entitled to the amount of Rs.2,76,857/ from the defendant no.1 on account of leave travel allowance, medical reimbursement etc. Defendants have taken contradictory stands. Defendants have not led any evidence and have not proved even a single document to show as to how the plaintiff is not entitled to the whole of the amount of his claim towards LTA and medical reimbursement, the copy of which are Ext.PW1/4 (colly). No cross examination was conducted on behalf of the defendants qua the claim of LTA and medical reimbursement. No suggestion was put to the PW1 that the bills were sent at a later stage. Appointment letterEx.PW1/1 itself provides that the plaintiff is entitled to such benefits. Defendant has merely taken the plea that bills were submitted by the plaintiff after his resignation from the job. Plaintiff availed the LTA w.e.f 19.11.11 to 27.11.11 and resigned from his job on 29.11.2011. Hence, there was no occasion with the plaintiff to submit the LTA bill during his service with the defendants. The cheque sent by the defendants to the plaintiff amounting to Rs.2,76,857/ was not encashed by the plaintiff and the same forms part of the judicial record and is marked as Ext.PW1/7 (colly). However, a perusal of the the list of the medical bills shows that plaintiff has claimed the amount of the bills which pertain to the period after his resignation. Plaintiff has placed on record the letter dated 30.3.2012Ex.PW1/7 wherein the defendant has CS No.55453/16 Page 8 of 10 Kamal Nayyar vs. M/s Orient Paper & Industries Limited and others admitted the entitlement of the plaintiff towards the reimbursement of medical bills to the tune of Rs.42,090/. Hence, plaintiff is entitled to the full amount of LTA and the medial bills to the extent of Rs.42,090/. Hence, this issue is decided accordingly.
Issue No.5 & 6 :
15. As these issues are interlinked, they are being decided together. As I have already decided issues no.3 and 4 in favour of the plaintiff to the extent as stated above, but taking note of the fact that the defendant no.1 is a company, as mentioned in the second para of the appointment letterEx.PW1/1 which the plaintiff himself has relied upon, and, thus, is a separate legal entity from its directors/employees etc, plaintiff is entitled to recover the amount only from the defendant no.1company and not from defendant no.2 and 3 who are company's Managing Director and Head Group HR respectively. In view of my findings on issue no.4, the plaintiff is entitled to an amount of Rs.12,84,257/ (Rs.10,72,167/ + Rs.1,70,000/ + Rs.42090/) from defendant no.1 company. This issue is decided accordingly.
Issue No.6 :
17. The onus to prove this issue is on the plaintiff. A perusal of the appointment letterEx.PW1/1 shows that there is no stipulation as to interest over the salary and other due amount to which the plaintiff is entitled.
Hence, I am of the opinion that plaintiff is not entitled to any interest for the period prior to the filing of the present suit. This issue is decided accordingly.
Relief.
18. As I have decided all the issues in favour of the plaintiff and CS No.55453/16 Page 9 of 10 Kamal Nayyar vs. M/s Orient Paper & Industries Limited and others against the defendant no.1 only to the extent as stated above, the suit of the plaintiff is decreed for a sum of Rs.12,84,257/ with interest @ 8% p.a. from the date of the filing of the suit till its realization. Plaintiff shall also be entitled to costs. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance. Digitally signed by PRAVEEN PRAVEEN KUMAR KUMAR Date: 2018.10.26 04:50:22 +0530 Announced today in open (Praveen Kumar) court i.e on 18.10.2018. Additional District Judge05 N.D. Distt.PHC/New Delhi. s CS No.55453/16 Page 10 of 10 Kamal Nayyar vs. M/s Orient Paper & Industries Limited and others