Bangalore District Court
Mr.Aravind Gopal M vs M/S. Avon Facility Management on 28 April, 2016
IN THE COURT OF THE XXIV ADDL.CITY CIVIL &
SESSIONS JUDGE BENGALURU CITY (CCH-6)
This the 28th day of April, 2016.
Present: Sri. S.SRIDHARA,
B.Sc.,LL.B.,
th
24 Addl. City Civil & Sessions Judge,
Bengaluru City.
O. S. No.1399/2015
PLAINTIFF: Mr.Aravind Gopal M
S/o Sri.M.S.gopal,
Aged about 40 years,
R/at No.109, 11th Cross,
7th Main, Malleshwaram,
Bengaluru- 560 003.
(By Sri.K.B.Naveen Kumar, Advocate)
Vs.
DEFENDANT: M/s. AVON Facility Management
Services Limited,
Corporate Office, No.27,
4th Floor, SV towers,
80 feet road, 6th Block,
Koramangala,
Bengaluru- 560 095,
Represented by its
Managing Director & CFO
Mr.Subrata Nag.
(By.Sri.A.R.Bhavani Shankar, Advocate)
Date of institution of the suit: 10.02.2015
Nature of the suit: Money suit
-2- O.S.1399/2015
Date of commencement of 24.08.2015
recording of evidence:
Date on which Judgment was 28.04.2016
pronounced:
Duration Days Months Years
18 02 01
JUDGMENT
The instant suit filed by the plaintiff against the defendant is one for recovery of a sum of Rs.2,73,284/- with interest at 18% p.a. from the date of the suit till the realization along with cost of the suit; directing the defendant to calculate the LTA and pay the same to the plaintiff and also provide PF clearance by issuing certificates in favour of the plaintiff and also for cost and such other reliefs.
2. a) The plaintiff has stated that he is residing in the address mentioned in the cause title. He was offered the position of General Manager, Food and Hospitality Services at AVON Facility Management Services Limited i.e. the defendant in this case as per the appointment
-3- O.S.1399/2015 order dated 16.11.2011 and subsequent to which the same designation and responsibilities have continued till 7.8.2014 i.e. till the time of his resignation and no changes had been made. Copy of the appointment order, confirmation and acceptance letter, copy of the resignation letter and relieving letter are produced for kind perusal.
b) The plaintiff further stated that from the said date, the plaintiff has been working in the position till 7.8.2014 i.e. up to the date of his tendering resignation to the defendant. As per the terms of the employment in the Corporate Sector, it is agreed that after tendering resignation there is a three months notice period and further it is agreed that at the time of notice period, the entire salary has to be paid to the employee. But the plaintiff is seeking three months basic salary as the resignation of the plaintiff has been accepted immediately and relieved the plaintiff as on the date of resignation to the defendant i.e. on 7.8.2014 along with salary
-4- O.S.1399/2015 settlement for the said three months notice period vide email confirmation dated 7.8.2014 from one Mr.Dhanabalan, who is the General Manager, HR Operations. According to the plaintiff, as per the terms and conditions stipulated between the employer and employee, three months salary has to be paid to the plaintiff along with other allowances, benefits and pending expenses incurred by him till his resignation.
c) The plaintiff further stated that all of a sudden on 8.9.2014, the defendant had issued show-cause notice to the plaintiff alleging that he had advised his team member Miss. Amitha.S to store the left over/unused liquor valued at Rs.47,000/- at her residence till further instructions. The said show-cause notice has been received and replied properly as per the reply notice dated 10.10.2014, wherein the plaintiff sought for documents from the defendant and after receipt of the same, the defendant had not provided the said listed documents to the plaintiff and again made further
-5- O.S.1399/2015 allegations against the plaintiff. The plaintiff further stated that the plaintiff had repeatedly asking the defendant to provide necessary documents since all the documents are in the custody of the defendant to substantiate his reply to the show-cause notice issued to the plaintiff. But so for, the defendant had not turned up to the said issue. The defendant had not cleared the outstanding three months salary, allowances and other dues till the date of his resignation of the plaintiff, though the plaintiff has demanded to settle his claim and dues in his reply notice and also in the reminder notice dated 15.12.2014.
d) The plaintiff further stated that the said issue has been raised by the defendant after tendering the resignation of the plaintiff on 7.8.2014 and the defendant has accepted the plaintiff's resignation immediately with effect from 7.8.2014 and hence, the same is not acceptable and the same is illegal and is not binding on any liability on the plaintiff towards the said issue. The
-6- O.S.1399/2015 attitude of the defendant is only to avoid a settlement of the claim and dues to the plaintiff and the defendant used cheap trick of issuance of show-cause notice to the plaintiff.
e) The plaintiff further stated that as per the agreed terms and conditions, the defendant failed to settle the claim of the plaintiff and dues and plaintiff has also issued legal notice to the defendant and same has been served on the defendant, but the defendant has not replied to the said notice and till today the defendant has not settled the claim and dues of the plaintiff even after lapse of three months and same is unjustifiable by the defendant. The plaintiff also stated that the defendant is in serious breach of trust and terms and commitments as agreed by the defendant.
f) According to the plaintiff, the defendant is due to the plaintiff in a sum of Rs.2,73,284/- towards the outstanding salary, claims, dues and other expenses as
-7- O.S.1399/2015 per the particulars shown in para-9 of the plaint with interest at the rate of 18% p.a. from the date of threshold period i.e. from 7.10.2014 and particulars read as follows:
Basic salary for 3 months notice period Rs. 2,17,350/- Outstation Travel claims: Rs. 28,988/-
Local expenses: Rs. 11,073/-
Fuel Claims: Rs. 1,105/-
Interest at the rate of 18% p.a. from Rs. 11,768/-
7.10.2014 to 7.1.2015 (3 months):
Total Rs. 2,73,284/-
g) In para-11 of the plaint, he also pleaded cause of action and in para-12 of the plaint, he stated about the valuation arrived at in respect of the subject matter of the suit and praying this Court to decree the suit as prayed for.
3. a) The defendant filed written statement denying all the plaint averments and contended that it is submitted that para-3 of the plaint is admitted by the defendant and
-8- O.S.1399/2015 plaintiff was appointed as General Manager, Food and Hospitality Services in the defendant company and he has served the company until he resigned on 29.7.2014. The appointment and resignation of the plaintiff is not disputed by the defendant.
b) The defendant further contended that the averment made in para-4 of the plaint is also true and correct and defendant does not dispute the fact that there is stipulation of notice period of three months for both the parties. The plaintiff has offered resignation on 29.7.2014 and it was mutually agreed that the plaintiff would be relieved on 7.8.2014 and dues if any to be settled as per the company policy etc.
c) The defendant further contended that the matter of settlement of eligible dues is not in dispute and the defendant has not disputed at any point of time the payment of eligible dues to the plaintiff. According to the defendant, the main dispute lies in the fact that the
-9- O.S.1399/2015 defendant has issued show-cause notice on 8.9.2014, wherein the defendant has sought certain explanation from the plaintiff with regard to some irregularities which occurred during the currency of employment of the plaintiff at Karnataka Golf Association (KGA) and the plaintiff instead of tendering explanation of facts, which are will within his knowledge, has challenged, remarked the very authority of the plaintiff (defendant) and the plaintiff has sought several documents and details, which were uncalled for and this prompted the defendant to withhold his settlement.
d) The defendant further contended that the defendant has sought explanation from the plaintiff towards the particular incident, wherein there was serious allegation of stock movement belongs to the defendant company's client KGA, which occurred in the month of June 2014, wherein the plaintiff was personally present on the said occasion. The defendant further contended that the plaintiff has took up the contention that he was
- 10 - O.S.1399/2015 only a business head solely for external sources and tried to wash off the allegations etc. However the plaintiff as a General Manager, Food and Hospitalities Service, is the head of the business and he was responsible for accountable in the business etc.
e) The defendant further contended that the defendant's client i.e. M/s. Karnataka Golf Association raised serious issue of stock discrepancy, which was not resolved and the dispute is still subsisting, which occurred during the currency of the employment of the plaintiff. That is the reason why the defendant company's management has taken up the matter seriously and initiated enquiry into the matter. He further contended that the plaintiff adamantly argued when the matter was resolved on 23.6.2014 in the meeting of the representatives of the defendant i.e. AVON and the external Auditors and representatives of KGA and alleged that the stock discrepancy is baseless. The defendant further contended that the plaintiff instead of giving a
- 11 - O.S.1399/2015 simple statement of facts, which are well within his knowledge, unnecessarily demanded documents from the defendant's client to tender his explanation, which was not accepted by the defendant. He further stated that infact the plaintiff being the head of the business has abused his position by instructing one of his team members to move the stock from the club premises. According to the defendant, the plaintiff being a top functionary of the company has managed to overtake all the procedural formalities of gate pass, debit note and managed to send the stock out of KGA. The plaintiff being head of Food and Hospitality Services is accountable for any discrepancy in the stocks and when the company is getting debit notes as the plaintiff was serving in the said position, is definitely accountable etc.
f) According to the defendant, the allegation of the plaintiff in para-6 that the issue of stock discrepancy has been raised after his resignation on 29.7.2014 has no meaning. The issue of stock discrepancy has happened
- 12 - O.S.1399/2015 during the course of his employment and in his presence on the place of occurrence and as such the plaintiff is duty bound to tender his explanation. The allegation in para-7 of the plaint that legal notice issued by the plaintiff has not been replied by the defendant is totally false. The legal notice of the plaintiff dated 10.10.2014 has been duly replied by the defendant on 27.10.2014. To that, the plaintiff has sent another rejoinder to the said reply dated 15.12.2014 and that also being replied by the defendant etc.
g) According to the defendant, the plaintiff instead of tendering explanation with regard to stock discrepancy at KGA is trying to mislead the Court and collect the salary arrears. The breach of trust occurred on the part of the plaintiff by involving in stock embezzlement and not by the defendant. Being faithful and honest to the company is also a precondition of employment and the plaintiff is trying to impose the condition only on the
- 13 - O.S.1399/2015 defendant and the plaintiff is totally silent on the part of his violation.
h) In para-10 of the written statement, the defendant has further stated that the plaintiff is entitled only for a sum of Rs.2,04,693/- towards his dues that were pending at the time of relieving. The said amount will be disbursed only when the plaintiff tenders his explanation with regard to stock discrepancy and due to the said stock embezzlement, the company has suffered loss for a sum of Rs.1,27,000/-, which obviously happened during the presence of the plaintiff etc.
i) The defendant further contended that the plaintiff is not entitled for any interest and the claim of interest at 18% p.a. by the plaintiff on the said due cannot be awarded as the plaintiff failed to tender any explanation on the stock discrepancy. All the demands other than the basic salary is denied. The demand of the plaintiff in a sum of Rs.2,73,284/- and other claims are also denied.
- 14 - O.S.1399/2015 There is no cause of action for the plaintiff to file this suit, since the plaintiff has failed to tender his explanation on the serious allegation and the plaintiff also involved in breach of trust. Hence until he tenders explanation, the plaintiff shall not be allowed to put up his claim and accordingly the defendant prays this Court as follows:
a) that the plaintiff is duty bound to tender an explanation on the stock discrepancy as stated in the written statement to the satisfaction of the defendant and get himself absolved;
b) only upon being absolved of stock discrepancy allegation, the plaintiff shall be entitled for settlement of his dues;
c) in default, the instant suit may be dismissed in the interest of justice and equity.
4. Based on the above pleadings of the parties, this Court has framed the following issues:
1. Whether the plaintiff proves that he worked as General Manager - Food & Hospitality Services at AVON Facility Management Services Ltd., i.e., the defendant's company from 16.11.2011 to 07.08.2014?
- 15 - O.S.1399/2015
2. Whether plaintiff further proves that as per the terms and conditions stipulated between employee and employer 3 months salary has to be paid to the plaintiff along with other allowances, benefits and pending expenses incurred by the plaintiff till his resignation?
3. Whether the plaintiff further proves that the defendant had not cleared the outstanding 3 months salary, allowances and dues pending till the date of resignation of the plaintiff though the plaintiff has demanded to settle his claim and dues in his reply notice and remainder dated 15.12.2014?
4. Whether the plaintiff further proves that defendant is due to the plaintiff a sum of Rs.
2,73,284/- with interest at 18% p.a. from the date of suit, till the date of realization of the suit claim?
5. Whether the plaintiff further proves that he is entitle for LTA, P.F clearance by issuing certificate as prayed for?
6. Whether the defendant proves that plaintiff being the head of the business has abused his position by instructing one of his team members to move the stock from the club premises as contended in Para.5 of written statement?
7. Whether the defendant further proves that the plaintiff being the head of food and
- 16 - O.S.1399/2015 hospitality services is accountable for any discrepancies in the stocks as contended in para.5 of written statement?
8. Whether the defendant further proves that issuance of stock discrepancy has happened during the course of employment of the plaintiff and in his presence on the case of occurrence and plaintiff is duty bound to tender his explanation?
9. Whether the defendant further proved that plaintiff is entitle for Rs. 2,04,693/- towards his dues that were pending at the time of his relieving?
10. Whether the defendant further proved that it had suffered loss to an extent of Rs.1,27,000/- which obviously happened during the presence of the plaintiff?
11. What decree or order?
5. In support of the case of the plaintiff, he himself is examined as PW.1 and got marked Ex.P.1 to P.15 and closed his evidence.
6. The DGM, Legal in the defendant company is examined as DW.1 and got marked Ex.D.1 and closed his evidence.
- 17 - O.S.1399/2015
7. Learned counsel for the plaintiff so also learned counsel for the defendant both submitted their written arguments.
8. Perused the written statement of both sides and also perused the records.
9. My findings on the above issues are:
Issue No.1: Affirmative.
Issue No.2: Partly Affirmative.
Issue No.3: Partly Affirmative.
Issue No.4: Partly Affirmative.
Issue No.5: Partly Affirmative.
Issue No.6: Negative.
Issue No.7: Negative.
Issue No.8: Negative.
Issue No.9: Affirmative.
Issue No.10: Negative.
Issue No.11: As per the final order
for the following;
REASONS
10. Issue Nos.1 to 10: Since all these issues are
interlinked with each other and require common
discussion of facts, they are taken together for discussion to avoid repetition of facts.
- 18 - O.S.1399/2015
11. When the plaintiff pleads that he was working as General Manager- Food & Hospitality services at AVON Facility Management Services Limited from 16.11.2011 to 7.8.2014 and when the plaintiff pleads that as per the terms and conditions stipulated between employee and employer, three months salary has to be paid to the plaintiff along with other allowances, benefits and pending expenses incurred by the plaintiff till his resignation, it is for the plaintiff to establish issue Nos.1 and 2.
12. Similarly when the plaintiff pleads that the defendant has not cleared the outstanding three months salary, allowances and dues pending till the date of resignation, when the plaintiff further pleads that he has demanded to settle the same in his reply notice and reminder dated 15.12.2014 and when the plaintiff pleads that the defendant is due to the plaintiff a sum of Rs. 2,73,284/- with interest at 18% p.a. from the date of the suit till the date of realization of the suit claim, when the
- 19 - O.S.1399/2015 plaintiff pleads that he is also entitled for LTA, PF Clearance by issuing certificate, the burden is also on the plaintiff to prove issue Nos.3 to 5.
13. At the same time, when the defendant contended that the plaintiff being the head of the business has abused his position by instructing one of his team members to move the stock from the club premises and when the defendant contended that the plaintiff being the head of Food and Hospitality Services is accountable for any discrepancies in the stock as contended in para-5 of the written statement, it is for the defendant to establish issue Nos.6 and 7.
14. Similarly when the defendant contended that the stock discrepancy has happened during the course of employment of the plaintiff and in his presence at the place of occurrence and plaintiff is duty bound to tender his explanation and when the defendant further contended that the plaintiff is entitled for Rs.2,04,693/- towards his dues that were pending at the time of his
- 20 - O.S.1399/2015 relieving, it is for the defendant to prove issue Nos. 8 and 9 also.
15. Similarly it is for the defendant to establish that it had suffered loss to an extent of Rs.1,27,000/-, which obviously happened during the presence of the plaintiff, the burden is on the defendant to prove issue No.10.
16. In support of the case of the plaintiff, he relied upon Ex.P.1 to P.15.
17. Ex.P.1 is the letter of appointment issued by the defendant to the plaintiff on 16.11.2011, wherein the offer of appointment is effective from 16th November 2011 and by agreeing to the terms and conditions of the appointment order, the authorised signatory of the defendant also affixed his signature. The defendant in the written statement at para-2 also admitted the fact that the plaintiff was appointed as General Manager, Food and Hospitalities Services in the defendant company and he has served the company until he resigned on
- 21 - O.S.1399/2015 29.7.2014 and further contended that the appointment of the plaintiff and his resignation is not disputed by the defendant. So in view of this admission, much discussion with regard to the appointment of the plaintiff and resignation of the plaintiff is uncalled for.
18. In para-3 of the written statement, the defendant also admitted the fact that the plaint averment at para-4 is also true and correct and defendant does not dispute the fact that there is a stipulation period of three months for both the parties.
19. Ex.P.3 is the resignation letter tendered by the plaintiff to the defendant firm on 29.7.2014 stating that the last couple of months have been rather disturbing the plaintiff professionally and personally, so much so that he has decided to take a break from the work and he is resigning from his position as business head in the defendant company, which will take effect immediately. This resignation letter of the plaintiff has been accepted by the defendant as per the email correspondence, which
- 22 - O.S.1399/2015 is marked as Ex.P.2, wherein the resignation tendered by the plaintiff has been accepted and accordingly the plaintiff was relieved from his duties with effect from today i.e. on 7.8.2014 and accordingly the plaintiff was directed to hand over the charge to one Mr.Guruprasad and to return all the company property to the undersigned on that day itself i.e. on 7.8.2014. This resignation acceptance letter discloses the fact that the dues of the plaintiff if any would be settled as per the company policy.
20. On perusal of Ex.P.2, it also discloses the fact that the dues of the plaintiff if any would be settled as per the company policy. This contents of Ex.P.2 indicates the fact that the defendant company is due to the plaintiff and the particulars of the dues have not been disclosed y the defendant company in Ex.P.2.
21. Ex.P.4 is the show-cause notice dated 8.9.2014 issued by the defendant to the plaintiff calling upon the plaintiff to furnish his explanation in respect of the event
- 23 - O.S.1399/2015 that occurred at Karnataka Golf Association. The contents of Ex.P.4 also discloses that the plaintiff had advised his team member Miss.Amitha.S to store the left over/unused liquor worth Rs.47,000/- at her residence till further instructions. The letter also discloses the fact that the significant quantities of premium liquor has been misappropriated from their inventory and accordingly the said KGA has accused the defendant company of theft and mismanagement etc. It is worth to mention at this stage itself that in support of this show-cause notice, no supporting document has been produced by the defendant in his evidence to show that there was complaint from KGA against the plaintiff in this case nor to show that there was misappropriation of unused liquor that was supplied to KGA etc. This show-cause notice never reveals the date or the particulars of the complaint if any lodged by KGA with the defendant company.
22. Ex.P.5 is the reply given by the plaintiff dated 12.9.2014 to the said show-cause notice issued by the
- 24 - O.S.1399/2015 defendant as per Ex.P.4, wherein the plaintiff in this case has requested the defendant company to furnish the required particulars as shown in his reply so as to enable the plaintiff to answer show-cause notice issued by the defendant as per Ex.P.4. It appears that up to the date of filing of the suit, the defendant has not furnished the required particulars to the plaintiff so as to enable him to answer the show-cause notice issued by the defendant as per Ex.P.4 to the plaintiff. It is also worth to mention at this stage itself that Ex.P.4 show-cause notice was issued to the plaintiff by the defendant on 8.9.2014 inspite of the fact that the defendant has accepted the resignation of the plaintiff with effect from 7.8.2014 unconditionally. If at all if there was any misappropriation or mismanagement on the part of the plaintiff, nothing prevented the defendant to accept the resignation of the plaintiff conditionally, as the alleged incident at KGA had occurred in the month of June 2014, which is much prior to the date of tendering resignation of the plaintiff as per
- 25 - O.S.1399/2015 Ex.P.3, which is dated 29.7.2014. From this, it is also crystal clear that it is only after accepting the resignation of the plaintiff unconditionally, the defendant started issuing show-cause notices to the plaintiff that too without furnishing required documents to the plaintiff as called for in Ex.P.5.
23. Ex.P.6 is further show-cause notice dated 12.9.2014 issued by the defendant to the plaintiff stating that in the claim of the defendant they have stated that there has been embezzlement of stocks from the client of the defendant i.e. KGA. It also discloses that the defendant has appointed independent professional auditor to take stock of misappropriation and embezzlement. On calculation by KGA, the shortage amount, considering the opening stock as on 1st November 2013 and adjusting for sales, issues and stock outs, that shortage amount is around Rs.1,27,000/-. If really there was shortage of amount of Rs.1,27,000/-, then nothing prevented the defendant from furnishing required documents to the
- 26 - O.S.1399/2015 plaintiff as called for by the plaintiff in his reply Ex.P.5. In addition to that, there is no mention in Ex.P.4 to the effect that there was shortage of amount of Rs.1,27,000/-. It appears that it is only an after thought of the defendant just to evade the payment of the plaintiff which the defendant is liable to pay as per the terms and conditions entered into between the plaintiff and defendant.
24. Ex.P.7 is the office copy of the legal notice dated 10.10.2014 issued by the plaintiff to the defendant and accordingly called upon the defendant to revoke the show-cause notice unconditionally and to immediately settle the dues of the plaintiff within seven days from the date of receipt of the said notice failing which the plaintiff reserved his right to recover the dues before the competent authorities. This notice also disclose the fact that the defendant has made false and baseless allegations without furnishing the required documents
- 27 - O.S.1399/2015 and correspondences to substantiate the allegations made against the plaintiff etc.
25. Ex.P.8 is the postal receipt; Ex.P.9 is the served postal acknowledgement for having served legal notice.
26. Ex.P.10 is the reply notice issued by the defendant to the plaintiff on 27.10.2014, wherein the defendant goes to the extent of saying that the plaintiff is demanding non-existent document out of presumption and same cannot be furnished. So from this, it is also crystal clear that without any documentary evidence, now the defendant has issued two show-cause notices to the plaintiff as per Ex.P.4 and P.6. If at all if there was any basis or document in the custody of the defendant showing the misappropriation or negligence on the part of the plaintiff, then nothing prevented the defendant from issuing those documents so as to enable the plaintiff to answer the show-cause notices issued by the defendant as per Ex.P.4 and P.6.
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27. Ex.P.11 is the rejoinder notice sent by the plaintiff to the defendant on 15.12.2014 to the reply notice issued by the defendant as per Ex.P.10, wherein once again the plaintiff has reiterated the notice averments as per Ex.P.7 and also stated that it is false to state that the plaintiff is demanding non-existent document and also further stated that the matter in dispute is about the business which happened with KGA and all the documentary evidence are available with the defendant's client i.e. KGA and accordingly the plaintiff once again requested the defendant to furnish those documents to enable the plaintiff to give suitable explanation.
28. Ex.P.12 and P.13 both are postal receipts and Ex.P.14 and P.15 are served postal acknowledgements for having sent notice to the defendant and one A.R.Bhavanishankar, who appears to be the Advocate appearing for the defendant.
29. On the other hand, the defendant has relied only one document i.e. Ex.D.1, which is the authority letter
- 29 - O.S.1399/2015 issued by the defendant to his DGM- Legal authorised him to appear before the Court and to adduce evidence and for such other purposes as shown in Ex.D.1.
30. The plaintiff, who is examined as PW.1, has reiterated the plaint averments. PW.1 in his cross- examination admitted that the stock discrepancy between the defendant and Karnataka Golf Association came to his notice twice. But denied the suggestion that similar stock discrepancy also came to the knowledge of PW.1 in the month of June 2014. PW.1 in his cross-examination specifically stated that the show-cause notice was issued to him by the defendant only after he tendering his resignation to the defendant company. The evidence on record shows that the stock discrepancy was noticed in June 2014. The resignation of the plaintiff was accepted with effect from 7.8.2014 and show-cause notice was issued to the plaintiff only subsequent to acceptance of the resignation of the plaintiff.
- 30 - O.S.1399/2015
31. PW.1 in his cross-examination admitted that the Karnataka Golf Association has deducted the amount in the bills that were payable to the defendant in respect of the difference amount. A strange suggestion is made in the cross-examination of PW.1 by suggesting that since the plaintiff has failed to tender suitable reply to the show-cause notice issued by the defendant, the defendant has withheld the payment of the plaintiff and this suggestion is denied by PW.1 in his cross- examination. This very suggestion indicates the fact that there was some dues to the plaintiff by the defendant company as claimed by the plaintiff in the plaint so far it relates to the basic pay of the plaintiff is concerned.
32. PW.1 in his cross-examination admitted the fact that he has not produced any documents with regard to the travel claim to an extent of Rs.28,988/-. Though he has stated that he was produced that document before the defendant company, he never called upon the defendant to produce the same before this Court.
- 31 - O.S.1399/2015 Similarly the plaintiff has not produced any document to show that he is entitled for Rs.11,073/- towards local expenses; Rs.4,105/- towards fuel expenses.
33. One more strange suggestion is made in the cross- examination of PW.1 by suggesting that on account of negligence of the plaintiff, the defendant has sustained loss and this suggestion is admitted by PW.1 in his cross- examination. Though this is a stray admission on the part of the plaintiff, but the defendant failed to produce any convincing document in this regard. He denied the suggestion that the plaintiff is bound to answer the show- cause notice issued by the defendant as on account of the negligence of the plaintiff, the defendant company has sustained loss.
34. If really the defendant company has sustained loss on account of the negligence of the plaintiff, then there was no impediment for the defendant to furnish those documents before the Court through the evidence of DW.1. But on the other hand except the authority letter,
- 32 - O.S.1399/2015 no convincing document has been produced by the defendant in this regard.
35. The DGM-Legal of the defendant is examined as DW.1, wherein he has reiterated the written statement averments in his chief examination affidavit. DW.1 has admitted that the plaintiff was appointed as General Manager and Head of the Food and Hospitality Services with the defendant company and he has served the company till he resigned on 29.7.2014. He further stated that the appointment of the plaintiff and resignation of the plaintiff is not disputed by the defendant. In addition to that, DW.1 also admitted in his chief examination affidavit that the defendant does not dispute the fact that there is stipulation of notice period of three months for both the parties. The plaintiff has offered resignation on 29.7.2014 and same was mutually agreed that the plaintiff would be relieved on 7.8.2014. He further admitted that the dues if any to be settled as per the company policy. He also further stated the matter of
- 33 - O.S.1399/2015 settlement of eligible dues is also not disputed by the defendant and defendant has not disputed at any point of time the payment of eligible dues to the plaintiff.
36. In his chief examination affidavit at para-9 so also in the written statement of the defendant at para-10, the defendant has specifically admitted the fact that the plaintiff is entitled only for a sum of Rs.2,04,693/- towards his dues that were pending at the time of his relieving and the said amount will be disbursed only when the plaintiff tenders his explanation with regard to the stock discrepancy. He further stated that due to stock embezzlement, the defendant company has sustained loss to an extent of Rs.1,27,000/- and further stated that the said loss was happened to the defendant during the presence of the plaintiff etc. As discussed earlier, except producing the authority letter, the defendant has not produced any document to substantiate the defence.
37. DW.1 in his cross-examination admitted that he has got information about this case on the basis of record and
- 34 - O.S.1399/2015 also stated that he has not produced those documents from and out of which he got the information. He also specifically admitted that there was no impediment for him to produce those documents, which he has inspected. He specifically admitted that the resignation letter of the plaintiff has been accepted by the defendant company. He also specifically admitted in his cross-examination that at the time of accepting the resignation of the plaintiff, no condition was imposed by the defendant. He also admitted that only after accepting the resignation of the plaintiff, show-cause notice came to be issued to the plaintiff by the defendant company.
38. DW.1 in his cross-examination also admitted that he has not mentioned in his chief examination affidavit with regard to the date on which there was stock discrepancy in KGA. But he stated that as per Ex.P.6, that was in June 2014. He also specifically admitted that he do not know the incident that occurred in June 2014 at Karnataka Golf Association. He goes to the extent of
- 35 - O.S.1399/2015 saying that he cannot produce the copy of the complaint that was filed by Karnataka Golf Association with the defendant. So without producing the relevant and necessary documents, the defendant making allegations against the plaintiff stating that there was stock discrepancy at Karnataka Golf Association, who is the client of the defendant, that too during the presence of the plaintiff i.e. at the time when the plaintiff was working with the defendant company. He also stated that he cannot produce the documents before the Court to show that there was stock discrepancy to an extent of Rs.1,27,000/- in the month of June 2014.
39. DW.1 in his cross-examination also admitted that they used to get the audit every year and that audit report is also not produced by the defendant for the reasons best known to him. If at all if that audit report is produced by the defendant, that would have thrown some light on the defence of the defendant. He goes to the extent of saying in his cross-examination that Karnataka
- 36 - O.S.1399/2015 Golf Association has given only oral complaint with the defendant.
40. DW.1 admitted that the plaintiff has resigned the job in the defendant company and the resignation of the plaintiff was accepted on 7.8.2014 and also stated that the defendant has not informed the plaintiff about the stock discrepancy before accepting the resignation of the plaintiff and this evidence reads as follows:
ªÁ¢ vÀªÀÄä PÉ®¸ÀPÉÌ gÁf£ÁªÉÄà PÉÆnÖzÁÝgÉ CAzÀgÉ ¸Àj. D gÁfãÁªÉÄ PÉÆlÖAvÀºÀ ¥ÀvÀæzÀ ªÉÄÃ¯É M¥Àà®Ä CxÀªÁ ©qÀ®Ä ªÀÄÆgÀÄ wAUÀ¼À PÁ®ªÀPÁ±À EgÀÄvÀÛzÉ CAzÀgÉ ¸Àj. ªÁ¢ ¢B29.7.2014 gÀAzÀÄ gÁfãÁªÉÄ ¥ÀvÀæ PÉÆnÖzÁÝgÉ CAzÀgÉ ¸Àj. CzÀ£ÀÄß £ÀªÀÄä ¸ÀA¸ÉÜAiÀÄ°è ¢B7.8.2014 gÀAzÀÄ CPÉì¥ïÖ ªÀiÁrzÉÝÃªÉ CAzÀgÉ ¸Àj. ªÁ¢AiÀÄ gÁfãÁªÉÄAiÀÄ£ÀÄß ¤ÃªÀÅ M¦àPÉƼÀÄîªÀ ªÉÆzÀ¯Éà ¤ÃªÀÅ ªÁ¢UÉ ªÉÄîÌAqÀAvÉ ¸ÁÖPï ªÀåvÁå¸À EgÀĪÀ §UÉÎ w½¸À§ºÀÄ¢vÀÄÛ, CAzÀgÉ ¸ÁQë, £ÁªÀÅ w½¹®è JAzÀÄ ºÉüÀÄvÁÛgÉ.
41. DW.1 in his cross-examination also admitted the fact that the defendant has not furnished the required documents to the plaintiff though the plaintiff has stated that he is prepared to reply the show-cause notices
- 37 - O.S.1399/2015 issued by the defendant, if they provided those documents.
42. It is an undisputed fact that the plaintiff is appointed as General Manager, Food and Hospitalities Services at defendant company as per the appointment order dated 16.11.2011 and it is also an undisputed fact that he continued in the said job up to 7.8.2014 and this fact is also admitted by the defendant in his written statement so also in the chief examination affidavit of DW.1. The evidence on record also discloses that the resignation letter of the plaintiff was accepted and relieved on 7.8.2014 and plaintiff was relieved of his services unconditionally without imposing any condition and the defendant also has not reserved any action against the plaintiff while accepting the resignation letter of the plaintiff.
43. Para-5 of the plaint also discloses that the show cause notice was issued by the defendant to the plaintiff on 8.9.2014 i.e. after accepting the resignation letter of
- 38 - O.S.1399/2015 the plaintiff with effect from 7.8.2014. This clearly discloses that the time gap between the date of acceptance of resignation and issuance of show cause notice is almost one month. The plaintiff also replied the said show cause notice without any delay on 12.9.2014.
44. The exchange of legal notices and reply between the plaintiff and defendant is also not in dispute. In para-3 of the written statement, the defendant also admitted that there is a stipulation of notice period of three months for both the parties and the plaintiff offered resignation on 29.7.2014, which was mutually agreed that the plaintiff would be relieved on 7.8.2014 and dues if any is to be settled as per the company policy. From this, it also indicates the fact that as on the date of acceptance of the resignation of the plaintiff, the defendant was due some amount to the plaintiff in terms of appointment condition entered into between the plaintiff and defendant.
45. In the written statement at para-10, the defendant specifically admitted that the plaintiff is entitled only for
- 39 - O.S.1399/2015 Rs.2,04,693/- towards his dues that was pending at the time of his relieving from the services, but stated that the said amount will be disbursed to the plaintiff only when the plaintiff tenders his explanation with regard to the stock discrepancy and further stated that the company has suffered loss to an extent of Rs.1,27,000/-, which is obviously happened during the presence of the plaintiff. So from this, it is also crystal clear that the plaintiff is entitled for a sum of Rs.2,04,693/- from the defendant. But to show that the defendant company has suffered loss to an extent of Rs.1,27,000/-, the defendant has not produced any documents.
46. It is also borne out from the record that in the reply given by the plaintiff to the show cause notice issued by the defendant as per Ex.P.5, though the plaintiff has called upon the defendant to furnish required particulars to answer the show cause notice, but the defendant thoroughly failed to furnish the required particulars and documents and thereby denied the right to the plaintiff of
- 40 - O.S.1399/2015 tendering his explanation. So from this, it is also crystal clear that the defendant has withheld the vital documents and even failed to produce those documents before the Court at the time of recording evidence.
47. The defendant in the written statement at para-5 also contended that there was serious allegation of stock discrepancy belongs to the defendant company's client i.e. Karnataka Golf Association, which is occurred in the month of June 2014, wherein the plaintiff has personally present on the said occasion. To substantiate its defence, the defendant failed to produce any documents. If at all if there was any stock discrepancy as contended by the defendant in the written statement, then nothing prevented the defendant from accepting the resignation of the plaintiff by imposing conditions and there was no necessity or occasion for the defendant to accept the resignation of the plaintiff unconditionally on 7.8.2014. The issuance of show cause notice as per Ex.P.4 and issuance of further show cause notice as per Ex.P.6 was
- 41 - O.S.1399/2015 only subsequent to acceptance of the resignation letter tendered by the plaintiff. So from this, it is also clear that the defendant has not approached the Court with clean hands and withheld the vital documents and filed the written statement without disclosing the true defence. If at all if there was any stock discrepancy in the defendant company's client i.e. Karnataka Golf Association, then there was no impediment for the defendant to produce the letter of correspondence if any made by the defendant with Karnataka Golf Association, but it is not produced those documents for the reasons best known to the defendant. No enquiry was conducted and no explanation was called from the plaintiff by the defendant before accepting the resignation of the plaintiff with regard to the alleged stock discrepancy.
48. On careful perusal of the material available on record, though the plaintiff in a way was able to establish before the Court that he is entitled to receive three months basic salary from the defendant, but with regard
- 42 - O.S.1399/2015 to interest and other claims of the plaintiff is concerned as stated in para-9 of the plaint, the plaintiff has not produced any convincing document and further when there is no contract between the plaintiff and defendant for payment of interest on salary due, the plaintiff is also not entitled for any interest as claimed in para-9 of the plaint.
49. Hence on careful perusal of the material available on record, the plaintiff proved that he worked as General Manager at defendant's company from 16.11.2011 to 7.8.2014. The plaintiff also proved that as per the condition stipulated between the employer and employee, three months basic salary has to be paid to the plaintiff by the defendant. The plaintiff also proved that the defendant had not cleared the outstanding three months salary as agreed to between the employer and employee inspite of demand made by the plaintiff and issuing legal notices. The plaintiff also proved that he is entitled for PF clearance by issuing certificate in this regard. However
- 43 - O.S.1399/2015 the plaintiff failed to prove that the defendant is due to the plaintiff to an extent of Rs.2,73,284/- with interest at 18% p.a. from the date of the suit till the date of realization.
50. On the other hand, the defendant thoroughly failed to prove that the plaintiff being the head of the business has abused his position by instructing one of his team members to move the stock from the club premises. The defendant also failed to prove that the plaintiff being the head of Food and Hospitality Services is accountable for any discrepancies in the stock. The defendant also failed to prove that the stock discrepancy had happened during the course of employment of the plaintiff and in presence of the plaintiff. The defendant also failed to prove that the defendant had suffered loss to an extent of Rs.1,27,000/-, which occurred due to the negligence of the plaintiff. But the defendant is able to establish before the Court that the plaintiff is entitled for only Rs.2,04,693/- towards his dues that were pending at the
- 44 - O.S.1399/2015 time of his relieving. Accordingly I answer issue No.1 in the 'Affirmative' and Issue Nos. 2 to 5 'Partly in the Affirmative'. I also answer issue Nos.6 to 8 and issue No.10 in the 'Negative' and issue No.9 in the 'Affirmative'.
51. Issue No.11: In view of my findings on issue Nos.1 to 10, I proceed to pass the following;
ORDER The instant suit filed by the plaintiff against the defendant is partly decreed with cost.
The plaintiff is held entitled to recover a sum of Rs.2,04,693/- from the defendant along with interest at the rate of 6% p.a. from the date of the suit till the realization.
The defendant accordingly is directed to pay a sum of Rs.2,04,693/- to the plaintiff along with interest at the rate of 6% p.a. from the date of the suit till the date of realization of the said amount.
- 45 - O.S.1399/2015 The defendant is also directed to provide PF clearance by issuing Certificate in favour of the plaintiff as prayed for. (Dictated to the Judgment Writer, computerized by her, then corrected, signed and pronounced by me in the Open Court on this the 28th day of April, 2016).
(S.SRIDHARA) XXIV ADDL.CITY CIVIL & SESSION JUDGE, BENGALURU CITY.
ANNEXURE List of witnesses examined for the plaintiffs:
P.W.1: Mr.Aravind Gopal List of documents marked for the plaintiffs:
Ex.P.1: Letter of appointment dated 16.11.2011. Ex.P.2: Resignation acceptance letter through email. Ex.P.3: Resignation letter of the plaintiff. Ex.P.4: Show-cause notice dated 8.9.2014. Ex.P.5: Reply to Show-cause notice through courier dated 12.9.2014.
Ex.P.6: Reply to show-cause notice dt. 29.9.2014. Ex.P.7: Legal notice dated 10.10.2014. Ex.P.8: Postal receipt.
Ex.P.9: Postal acknowledgement. Ex.P.10: Reply notice dated 27.10.2014. Ex.P.11: Rejoinder notice dated 15.12.2014. Ex.P.12 Two Postal receipts and two postal to P.15: acknowledgements.
- 46 - O.S.1399/2015 List of witnesses examined for the defendants:
DW.1 K.N.Nandeesh, DGM- Legal.
List of documents marked for the plaintiff:
Ex.D.1: Power of attorney issued by defendant company to give evidence in this case.
(S.SRIDHARA) XXIV ADDL.CITY CIVIL & SESSION JUDGE, BENGALURU CITY.