Karnataka High Court
Mohammed Rafiq vs M/S Resource Weaver India on 15 March, 2012
Author: C.R.Kumaraswamy
Bench: C.R.Kumaraswamy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 15TH DAY OF MARCH 2012
BEFORE
THE HONELE MR.JUSTICE C.R. KUMARASWAMY
R.F.A. NOJ61O/2011 (MON
BETWEEN:
MOHAMMED RAFIQ
S/O C.S. MOHAMMED,
AGED ABOUT 3 YEARS,
RESIDENT OF CHOLAYIL ASHRIVAD (HO)
VEERAMANGALAM (P0)
PALAKKAD DISTRICT,
KERALA. ... APPELLANT
(BY SMT. POONNIMA.D, ADV. FOR
INDIA LAW OFFICERS)
AND
1. M/S RESOURCE WEAVER INDIA,
A PARTNERSHI FIRM HAVING IT'S
REGISTERED OFFICE AT
81/A, FIRST FLOOR, 2ND CROSS,
3RD PHASE, JP NAGAR,
BANGALORE 560 078.
-
2. MR. SHANKAR, PARTNER,
RESOURCE WEAVER INDIA,
81/A, FIRST FLOOR, 2ND CROSS,
3RD PHASE, JP NAGAR,
BANGALORE 560 078.
-
... RESPONDENTS
A
2
(BY SRI.J.KANIKARAJ, ADV. FOR Ri & R2)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CODE OF CIVIL PROCEDURE DATED
26.05.2011 PASSED IN O.S.27363/2009 ON THE FILE OF
THE XXVI ADDL. CITY CIVIL JUDGE, MAYOHALL.
BANGALORE, DISMISSING THE SUIT FOR RECOVERY OF
MONEY.
THIS RFA COMING ON FOR ADMISSION THIS DAY,
THE COURT., DELIVERED THE FOLLOWING:
JUDGMENT
This Regular First Appeal is filed under Section 96 of Code of Civil Procedure dated 26.05.2011 passed in O.S. No.27363/2009 on the file of XXVI Addi. City Civil Judge, Mayohall, Bangalore, dismissing the suit for recovery of money.
2, With the consent of the learned Counsel for appellant as well as learned Counsel for respondent, this matter is heard on merits. The material placed before this Court is sufficient to dispose of the case at this stage. 3
3. Parties would be referred to with reference to the status in the Trial Court.
4. The case of the plaintiff in the Trial Court is as under The first defendant is a partnership firm represented by is the its Managing Partner Mr.Senthil. The 2nd1 defendant and partner of first defendant's firm, The Managing Partner of the the 2nd defendant are incharge of the day to day affairs Firm.
5. Plaintiff herein was appointed by defendants as The Consultant vide appointment letter dated 27th May 2008.
month.
salary of the plaintiff was fixed at Rs.70,000/- per ment The copy of the Appointment letter is produced as Docu No.1.
6. Plaintiff states that defendants were getting work outsourced by the Multi National Company called M/s C 4 Verisign Services India Pvt. Ltd., having their office at Korrnangala. The defendants would get the said work carried out through the plaintiff. The plaintiff was employed by the defendants directly.
7. The plaintiff accepted the offer of the defendants as per the terms of appointment letter. He commenced the work as per instructions of the defendants. He continued the work till 6th March 2009. The plaintiff states that the defendants were also deducting the tax at source from the salary of the plaintiff. The plaintiff states that as per the terms of the appointment letter the notice period was fixed at Sixty days from either side. The plaintiff could leave the service by issuing a notice of sixty days and accordingly the defendants could also terminate the services of the plaintiff by issuing a notice of sixty days,
8. The plaintiff states that on 6th March 2009 the defendants without any rhyme or reasons terminated the services. As per the terms of the appointment letter, service 5 could be terminated with 60 days written notice prior to such termination. The defendants orally informed the plaintiff that as the Multi National Company who had outsourced work to them had tenninated the contract with them and consequently his services were also terminated. It is stated that plaintiff was employed by the defendants directly. It is true that the appellant was doing the work of Multi National Company, but only on the instructions and supervision of the respondent herein. It is further mentioned herein that his employment was not only for a period of contract, which the respondents have been assigned by the Multi National Company. Further it was no where mentioned that the employment term was subject to the continuation of the companys working association with the Multinational Company. The offer letter dated 27th May 2008 specifIcally says that "you would be deputed at our client's premises. Reporting address and contract person details would be informed to you in due time". The plaintiff was unceremoniously called upon to handover all the documents Lv 6 in respect of the Multi National Company and his services were tenninated. Further thereafter the defendants issued the relieving letter dated 9.3.2009 stating that based on the plaintiff resignation, defendants have been relieved from the services with effect from 06.03.2009. The plaintiff denied that the contents of the relieving letter dated 09.03.2009 are totally false. The plaintiff states that he has never resigned from service and has not submitted any resignation letter, but the defendants in order to avoid payment of salary for notice period have taken such a stand.
9. The plaintiff states that he immediately called upon the defendants to pay the salary for the notice period and also sought for the Tax Deducted at Source certificate for his records. It is submitted that no proof for having remitted the tax amount deducted from his salary given by the plaintiff. The plaintiff made several calls to the defendants and also personally met the defendants, but the defendants failed to furnish the same.
7
10. The plaintiff finally left with no other alternative choice, therefore issued a legal notice to the defendants claiming the payment for the notice period being Rs.1,40,000[- and the details of the tax remittances made by them. The copy of the legal notice was also produced. The defendants sent their reply to the legal notice by offering to provide the plaintiff with an alternative job, but they failed to prove the details of tax remittances made to the statutory authorities and also failed to make payment of the amount of Rs.1,40,000/-. Thereafter the plaintiff got another legal notice issued in reply to their reply notice clarifying the situation that the plaintiff never resigned from services but his services were unceremoniously terminated.
11. The plaintiff states that the cause of action arose on 6th March 2009, when the defendants unceremoniously terminated the services of the plaintiff without issuing the notice therefore finally when inspite of receipt of the legal notice the defendants failed to comply with the same.
(7.
8Therefore plaintiff sought to grant the judgment and decree directing the defendants to pay a sum of Rs, 1,40,000/- along with interest / 18% p. a. and also mandatory injunction directing the defendants to furnish the TDS certificate for payment of tax deducted at source.
12. Though the notice was served on the defendants, the defendants appeared through their advocate, but failed to file the written statement.
13. The sum and substance of the findings of the Trial Court is as under
1. Whether plaintiff proves that he is entitled for 60 days termination notice prior to the termination on 6.3,2007?
2. Whether plaintiff is entitled for Rs.1,40,000/-
towards two months salary of notice period?
3. Whether plaintiff is entitled for relief sought for?
4. What order or decree?
9
14. The Trial Court has answered the above points as under Point No. 1 In the negative Point No.2 : In the negative Point No.3 : In the negative Point No.4 As per the final order for the following
15. The entire case of the plaintiff is based on Ex.P1. Ex.P1 is the offer letter. In respect of terms of offer letter, there is no dispute by the plaintiff. From the Ex.P1 offer letter, it is clear that take home salary of the plaintiff was fixed at Rs.62,590/- per month which will be payable on the 5th of every month. As per Ex.P1 offer letter initial service period will be six months Contract to hire.
16. As per clause 11 of the offer letter, the relationship between the plaintiff and defendant may be terminated by giving 60 days written notice on either side unless specific mutual agreement in writing, failing which, it will be deemed 10 asa breach of confidence and contract. As per the plaintiff's case his work started from 1Qt1 July 2008, as per Ex.P2 report letter to join at VeriSign, Bangalore. Ex.P14 is the reply notice. It is specific case of the defendant that after expirv of six months of contract period, services of plaintiff being extended periodically on month to month basis and same was orally informed to the plaintiff. As per Ex.P15 defendants had replied for the same but in that reply he has not replied regarding extension of service on a month to month basis and same was informed orally to plaintiff and in the present suit also the plaintiff has not made any explanation regarding the said fact,
17. The Trial Court has observed that the above contract period of six months was expired as per Ex,P1 and it is not the case of the plaintiff that after expiry of contract period under Ex.P1 fresh contract was entered between the plaintiff and defendant. In view of expiry of six months contract period, plaintiff cannot enforce the term regarding 60 11 days written notice to terminate the contract as period of contract was already expired. Subsequent e-mail correspondence made by plaintiff to defendant as per Exs,P8 to PlO and Ex.P1 I by defendant to plaintiff are not sufficient to come to the conclusion that before termination of service of plaintiff, written two months termination notice is required and in the absence of such notice plaintiff is entitled for salary for such two months notice time. Therefore, the Trial Court held that the plaintiff is not entitled for relief of recovery of Rs. 1,40,000/-. Therefore, suit of the plaintiff was dismissed.
18. Feeling aggrieved by the same, the plaintiff has preferred this appeal.
19. I have heard the learned Counsel for appellant and also learned Counsel for respondents.
20. It is the contention of the learned Counsel for appellant that the relationship between the employer and 12 employee still subsist as per clause V of the offer letter i.e Ex.Pl and she further submits that two months notice is mandatory to terminate the contract.
21. Learned Counsel for respondent supports the impugned judgment. Ex.P14 is the reply notice which reads as under
Mv client M/s Resource Weaver India, 81/A, 1st Floor, 2nd Cross, 3rd phase, JP Nagar, Bangalore 560 078, represented by it's Partner Shri. Ravishankar, has placed in my hands your notice of 13.04.2009, issued on behalf of your client Rafiq Mohammed Cholavil, and has instructed me to state as under
1. Mv client states that they having perused your Legal Notice, are of the view that your client has not briefed you of the facts correctly, and has suppressed material information from you, with malafide intentions of making unlawful gains from them.13
2. Mv client states that they are a manpower consultancy firm, and they are engaged in body shopping and that one of their client's M/s Verisign Services Pvt. Ltd., Bangalore, being in need of a consultant, you client was identified as a suitable candidate, and placed to work at their client's establishment.
3. My client states in that regard, you client was issued with a letter of offer of May 27, 2008 detailing the terms and conditions under which he was being engaged and his salary was stated to be Rs.62,590.00 per month (Net off TDS).
4. My client states that the initial term of service was for a period of six months only, commencing from third week of July 2008.
5. My client states that after the initial period of six months, your client's services was being extended periodically on a month to month basis, and that he was kept informed of the same orally.
6. Mv client states that their client M/s Verisign Services Pvt. Ltd., Bangalore, eventually terminated their contract with P -' 14 them and that your client was to be placed at another clients' establishment. However, your client not being interest to continue his employment with another customer of my client, requested that he be relieved as he intended to go back.
7. My client states, considering the services' rendered by your client, the notice period of sixty days prior to cessation of employment which he ought to have given prior to being relieved was waived as a special case, and he was relieved forthwith and a letter of relieving was also issued to him accordingly.
8. My client, states that your client having got himself relieved and having gone back to Delhi has now demanded Notice pay of two months salary, alleging that his services was terminated by them.
9. My client states that your clients services was never terminated, and his services was required at another customers establishment, and that the said position being still vacant, if your client is still interested, he will be placed to work at their establishment, located at Bangalore.
Lv 15
10. I urge upon you to advise your client report to work at my client's establishment, and that an opening still exists at Bangalore for him, and that the period from Feb 2009 to now will be treated as loss of pay and his employment will be continued, further no amounts are payable to your client, to the contrary, he alone is liable to pay an amount of Rs, 1,25,180/-, to my client, being the notice period pay, as he has left the employment of his own accord, without serving the notice period.
11. I therefore call upon you to suitably advise your client, in this regard, despite which if he persist in his false claims and initiates any proceedings against my client, I have instructions to defend my client, to the costs of consequences of your client alone, and that he is now liable to pay an amount of Rs.10,000,00 for heaping unwanted litigation on my client, which amount he is required to pay them directly.
16
22. Learned Counsel for respondent invites the attention of this Court to Clause V of Ex.P14 wherein it contents reads as follows "My client states that after the initial period of six months, your client's services was being extended periodically on a month to month basis, and that he was kept informed of the same orally".
23. He further submits that contract was entered on 10.7.2008 and the period of contract was expired on December 2008. After expirv of the contract period, the question of issuing notice for terminating the contract between the plaintiff and defendant does not arise. Once the contract is expired, the question of issuing notice is not necessary. Therefore, the Trial Court after considering the evidence have dismissed the suit.
17
24. The finding recorded by the Trial Court in my view is sound and proper and does not call for interference. Hence, this Regular First Appeal is dismissed.
Sd! JUDGE vsk/