Delhi District Court
Shri Sandeep Gupta vs Alankit Assignments Limited on 1 September, 2011
IN THE COURT OF SHRI GAUTAM MANAN
ASCJ:CENTRAL:DELHI
Suit No. 286/09
Shri Sandeep Gupta
S/o Shri Suresh Kumar Gupta
R/o 1/9651D, Street No.6/2,
Pratap Pura, shahdara,
Delhi110032 ..... Plaintiff
Versus
Alankit Assignments Limited,
A company registered under the Companies Act,
Having its registered office at 205208,
Anarkali Complex, Jhandewalan Extension,
Delhi110055.
ALSO AT:
2E/8, Jhandewalan Extension,
Delhi110055.
(Through its Managing Director/
Chairman/Authorized Representative) .....Defendant
SUIT FOR RECOVERY
DATE OF INSTITUTION : 20.03.2009
JUDGMENT RESERVED ON : 01.08.2011
DATE OF DECISION : 01.09.2011
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JUDGEMENT
1. The plaintiff has instituted the present suit for recovery of Rs.
1,82,079/ against the defendant on averments that the plaintiff was appointed as Executive w.e.f. August 2002 with the defendant company and was drawing a salary of Rs. 29,438/ per month. Besides this, the plaintiff was also entitled for Provident Fund, Gratuity, Bonus & Leave Encashment.
2. The plaintiff has stated that on 14.11.2008, he resigned from the defendant company due to his personal reasons and sent his resignation through email and the said resignation was duly acknowledged and accepted by the defendant company. The plaintiff was relieved from the services of defendant company on 03.12.2008 on the advice of Vice President of company to the plaintiff not to complete his notice period and the plaintiff was assured that his balance salary for the months of October & November 2008 and other benefits shall reach to plaintiff within 15 days from that date.
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3. It has been stated that the plaintiff did not receive the amount due and finding no other alternative the plaintiff served a notice dated 17.01.2009 on the defendant company but despite the said notice the defendant did not make the payment and hence the plaintiff has sought the recovery of suit amount under the following heads : Sr.No. Particulars Amounts
(a) Salary for the months of October and Rs. 58,876.00 November 2008 @ Rs. 29,438/ per month.
(b) Interest on salary amount @ 18% p.a. Rs. 3,107.00
(c) Bonus as per the company rules and Rs. 35,520/ prevailing Laws.
(d) Leave encashment as per company Rs. 15,316.00 rules and prevailing Laws.
(e) Interest on bonus and leave encashment Rs. 9,029.00 from April, 2008 to February 2009 @ 18% p.a.
(f) Gratuity for 6 years Rs. 57,635.00
(g) Interest on gratuity amount @ 18% p.a. Rs. 2,596.00 _______________ TOTAL : Rs.1,82,079.00 :3: C.S.: 286/09
4. The defendant company in the written statement stated that there was no agreement between the parties for payment of interest or arrears on any account. The defendant denied that the plaintiff was getting consolidated sum of Rs.29,438/ per month. Rather it has been submitted that the plaintiff was drawing basic salary of Rs.16,650/ per month. Besides this, he was getting House Rent Allowance of Rs.6,660/ per month and conveyance of Rs.800/ and in addition to this amount, the defendant was making a contribution of Rs.1,998/ to the Provident Fund account of the plaintiff. The defendant stated that for the financial year 200809, the company did not finalize the account and as such the bonus was never declared, however as a gesture of goodwill, the defendant had been paying to the plaintiff advance against bonus of Rs. 3,330/ per month subject to adjustment upon declaration of bonus subsequently. It has been stated that the resignation submitted by the plaintiff on 14.11.2008 by E.Mail is not proper and valid as there is no prevailing practice in the defendant company for submitting the resignation by email.
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5. It has been stated that the plaintiff is not entitled for the leave encashment since no Earned Leave was due to his credit and plaintiff is further liable to make the payment of the salary of the notice period during which he did not render services. It has been stated that in case of resignation, Earned Leave if any to the credit of employee, stands forfeited. Thus, no amount is due to the plaintiff and question of interest on the due amount does not arise at all.
6. In replication, the plaintiff reiterated the facts of the plaint and denied the allegations made in the written statement.
7. On pleadings of parties, following issues were framed on 04.01.2010:
1.Whether plaintiff is entitled to decree for a sum of Rs.
1,82,079/ as claimed ? OPP.
2.Whether plaintiff is entitled to any interest ? If so at what rate and for what period ? OPP.
3.Relief.
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8. The plaintiff in order to prove his case has examined himself as PW1 and tendered his examinationinchief by way of affidavit. The plaintiff deposed on the lines of the plaint. The plaintiff also examined PW2 Shri Sandeep Mittal in support of his case. PW2 tendered his evidence by way of affidavit which is Ex. P.2.
9. The plaintiff proved his salary slip as Ex. PW.1/1. Copy of resignation letter sent to the defendant via E.Mail as Ex. PW. 1/2. The legal notice as Ex. PW.1/3 and postal receipt as Ex. PW.1/4 and copy of Form16 pertaining to the year 200809 and 200910 under income Tax Act as Ex. PW.1/5. During his crossexamination, the plaintiff deposed that defendant company started giving bonus @ 20% of the basic salary in every month.
10.The defendant company in its defense examined Shri Y.P.Sachdeva as DW1 and this witness tendered his examinationinchief by way of affidavit which is Ex. D.1. The witness deposed that he is Senior Vice President of the :6: C.S.: 286/09 defendant company and proved a resolution dated 01.09.2009 in his favour as Ex. DW.1/1. The witness of defendant during his crossexamination deposed that there was no amount due on account of salary or any other benefit, as such the defendant was not liable to make any payment to the plaintiff of the suit amount. The witness admitted that the salary slip of the plaintiff for the period of August and September 2010 as Ex. DW.1/X1 and Ex. DW.1/X2. The defendant did not produce any record pertaining to the settlement of the account of the plaintiff. The witness admitted that a TDS certificate was issued to the plaintiff as per Ex. PW.1/5. The witness also deposed that he cannot produce any record to show that there is notice period of three months for resignation.
11.I have heard Learned counsels for parties and have gone through the records.
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12. The issue wise findings are as under:
13.ISSUE NO.1 : Whether plaintiff is entitled to decree for a sum of Rs. 1,82,079/ as claimed ? The onus to prove that plaintiff is entitled for recovery of the suit amount is on the plaintiff himself. It is not in dispute that plaintiff was working with the defendant company. The defendant has admitted the salary slip of the plaintiff as per Ex. PW.1/1 also exhibit as Ex. DW. 1/X1 & Ex. DW.1/X2 and in these pay slips, the salary of plaintiff is shown as Rs.27,440/ per month. The DW1 has admitted that the defendant company was making an contribution of Rs1998.00 to the PF account of the plaintiff. As such it stands proved that plaintiff was drawing a salary of Rs. 27,440/ per month & Rs1998.00 was his PF contribution, hence the total salary of the plaintiff was Rs29438.00.
:8: C.S.: 286/09 The plaintiff in the present case has claimed that he
14.Salary:
has not been paid salary for the months of October and November 2008 and this is not disputed by the defendant. The defence taken by the defendant is that plaintiff is liable to pay the salary for the notice period and as such plaintiff is not entitled to the salary of the months of October and November 2008. However, during his crossexamination, DW1 admitted that defendant has not produced any document to show that there was a requirement of notice period of three months in case of resignation. Therefore, it cannot be inferred that plaintiff was under obligation to give three months notice period to the defendant company before leaving the job. As such, the defendant is not within its right to withhold the salary of the plaintiff for the months of October & November 2008 and hence the plaintiff is entitled for the salary of these two months @ Rs.27,440/ per month .
:9: C.S.: 286/09 The plaintiff has claimed in the suit leave
15.Leave Encashment :
encashment as per the company rules. It is not denied by defendant company that the defendant was not granting the benefit of leave encashment to its employees. Rather the defence taken by the defendant is that the plaintiff is not entitled to leave encashment as no earned leave was due to his credit. As stated above the leave record of the plaintiff has not been produced by the defendant company. The defendant being employer must be in possession of leave record of plaintiff but the record has not been produced before the Court and as such I am of the considered opinion that the defendant company is guilty of withholding of best evidence available in the present matter and the inference has to be drawn against defendant in this regard. More so, defendant has failed to file any terms and conditions which stipulates that in case the employee is resigning from the job he shall not be entitled to leave encashment. Accordingly, it is held that the plaintiff is entitled for a sum of Rs.15316/ towards the leave encashment.
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16.Gratuity :The plaintiff has also claimed an amount of Rs.
57635/ for gratuity for the period of his employment of 06 years with the defendant company. Although, in his testimony the DW1 has deposed that the defendant company is not liable to pay the gratuity to the plaintiff but the defendant has not placed on record any material to suggest that the defendant company was not bound to pay the gratuity to the plaintiff or there is any condition stipulated contrary to the payment of gratuity to its employees. Having failed to do so, I am of the opinion that the plaintiff is entitled to recover an amount of Rs.57635/ from the defendant company towards the gratuity.
The plaintiff has also claimed a bonus for a sum of Rs.
17.Bonus:
35520/ from the defendant company. In this regard, the defendant has taken a defense that as per the normal practice the bonus is paid by the defendant company at the end of year i.e. after the finalization of accounts for the financial year but as a gesture of goodwill the defendant company was paying a :11: C.S.: 286/09 sum of Rs.3300/ advance against bonus subject to the adjustment upon declaration of the bonus subsequently. The plaintiff has placed his salary slips on record which are Ex.PW1/1 and the same have also been admitted by the defendant as Ex.DW1/X1 and Ex.DW1/X2. In both these salary slips the advance against the bonus has been shown by the defendant company at Rs.3300/. But the defendant has not produced any record in order to show before the Court that to what amount the plaintiff was entitled to bonus when the defendant finalized its accounts at the end of the financial year. The onus was always on the defendant to produce the document on record which could prove before the Court the amount of the bonus declared by the defendant company for which its employees were entitled to. But no such record has been produced. Accordingly, I hold that the plaintiff is also entitled to recover a sum of Rs. 35520/ from the defendant company towards the bonus.
18.Accordingly, the issue stands decided in favor of the plaintiff and against the defendant company.
:12: C.S.: 286/09 Whether plaintiff is entitled to any interest ? If so
19.ISSUE 2:
at what rate and for what period ? The plaintiff has claimed an interest @ 18% p.a. from the defendant company on the total outstanding due against the defendant company. There is no privity between the parties to the suit regarding rate of interest. Keeping in view of the fact that interest rates have fallen in past few years, the plaintiff shall be entitled to an interest @ 12% p.a. from the defendant company from the date of dues that is 01.12.2008 till realization of due amount.
The suit of the plaintiff stands decreed against the
20.RELIEF:
defendant company for sum of Rs167347.00 ( Rupees One Lakh Sixty Seven Thousand Three Hundred & Forty Seven Only) with interest @ 12% p.a. from the date of dues that is from 01.12.2008 till realization of the decreetal amount. The plaintiff shall also be entitled for the costs of the suit.
Decree sheet be drawn.
File be consigned to Record Room.
Gautam Manan
ASCJ/C)Delhi
01.09.2011
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CS286/09
Sandeep Gupta Vs Alankit Assignments
01.09.2011
Present: None.
Vide separate judgment, The suit of the plaintiff stands decreed against the defendant company for sum of Rs.167347.00 (Rupees One Lakh Sixty Seven Thousand Three Hundred & Forty Seven Only) with interest @ 12% p.a. from the date of dues that is from 01.12.2008 till realization of the decreetal amount. The plaintiff shall also be entitled for the costs of the suit.
Decree sheet be drawn.
File be consigned to Record Room.
Gautam Manan
ASCJ/C)Delhi
01.09.2011
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