Delhi District Court
Ms. Tanu Arora vs M/S Divine Destiny Buying Service ... on 31 January, 2023
Tanu Arora v. M/s Divine Destiny Buying Service Pvt. Ltd. & Anr.
CS SCJ No. 577/18 and Counter Claim No. 894/18
IN THE COURT OF MS. NEHA PRIYA
ACJ-cum-CCJ-cum-ARC, SOUTH
SAKET COURTS, DELHI.
CS SCJ No. 577/18
CNR No.DLST03-000963-2018
Counter Claim No. 894/18
CNR No. DLST03-001510-2018
Ms. Tanu Arora
D/o Sh. Ajeet Singh
R/o H. No. 454, Sector - 27,
Gurugram, Haryana ............ Plaintiff
Versus
1. M/s Divine Destiny Buying Service Private Limited
Through its Directors
Regd. Office
At: 5/15, LGF, Sarvapriya Vihar,
New Delhi - 110016
Corporate Office
C-2/13, First Floor, DLF Phase-1,
Gurugram - 122002
Haryana ......Defendant no.1/counter-claimant
2. Mr. Sanjay Banaik
Director,
M/s Divine Destiny Buying Service Private Limited
Address at : 5/15, LGF, Sarvapriya Vihar,
New Delhi 110049
........... Defendant no. 2
1 of 26
Tanu Arora v. M/s Divine Destiny Buying Service Pvt. Ltd. & Anr.
CS SCJ No. 577/18 and Counter Claim No. 894/18
SUIT FOR RECOVERY OF A SUM OF RS.85,000/-
(RUPEES EIGHTY-FIVE THOUSAND ONLY) WITH
PENDENTE LITE AND FUTURE INTEREST
&
COUNTER CLAIM FOR A SUM OF Rs.38,635/- (RUPEES
THIRTY-EIGHT THOUSAND SIX HUNDRED THIRTY-
FIVE ONLY)
Date of Institution (Suit No. 577/18) : 08.06.2018
Date of Institution (Suit No. 894/18) : 24.09.2018
Date of Decision : 31.01.2023
Decision in Suit No. 577/18 : Partly Decreed
Decision in Counter Claim No. 894/18 : Dismissed
JUDGMENT
For the sake of brevity, the suit (CS no.577/18) and counter- claim (CS no.894/18) are being decided by way of a common judgment.
1. A suit for recovery of Rs.85,000/- (Rupees Eighty Five Thou- sand only) along with pendente lite and future interest has been filed by Ms. Tanu Arora (i.e. plaintiff in main suit and respondent in counter-claim, hereinafter referred as "plaintiff") against M/s Divine Destiny Buying Service Pvt. Ltd. (i.e. defendant no.1 in main suit and counter-claimant in the counter claim, hereinafter referred as "defendant no.1") and Mr. Sanjay Banaik (i.e. defen- dant no.2 in main suit, hereinafter referred as "defendant no.2") to recover outstanding dues towards salary. Defendant no.1 and 2 are hereinafter together referred as "defendants".
2 of 26 Tanu Arora v. M/s Divine Destiny Buying Service Pvt. Ltd. & Anr. CS SCJ No. 577/18 and Counter Claim No. 894/18
2. A counter claim for Rs. 38,635/- (Rupees Thirty Eight Thou- sand Six Hundred Thirty Five only) has been filed by defendant no.1 against the plaintiff on account of breach of terms of ap- pointment.
Averments in the plaint
3. The case of the plaintiff is that she is a designer by profession and defendant no.1 is a fashion buying house. Defendant no.2 is one of the directors of defendant no.1 responsible for its day to day affairs including financial and administrative functions.
4. On 10.07.2017, plaintiff was appointed as a designer by defendant no.1 & 2 for a gross monthly salary of Rs.45,000/- per month. Formal letter of appointment dated 10.07.2017 was issued by the registered office of defendant no.1, duly signed by defendant no.2. Duplicate copy thereof was duly signed by the plaintiff on 26.09.2017 and returned to defendant no.1. As per the terms of the appointment letter, plaintiff had been appointed on probation for a period of six months commencing from 10.07.2017. She joined the Gurgaon office of defendant no.1 on the same day and started working diligently. She continued to work till 12.10.2017 and resigned on 12.10.2017 due to unbearable work environment at the offices of defendant no.1 and hostile conduct of defendant no.2.
5. In return for her services, an amount of Rs.31,880/- had been 3 of 26 Tanu Arora v. M/s Divine Destiny Buying Service Pvt. Ltd. & Anr. CS SCJ No. 577/18 and Counter Claim No. 894/18 paid by defendants on 18.08.2017 towards salary for the period 10.07.2017 to 31.07.2017. She was paid Rs.25,000/- on 19.09.2017 towards her part salary for the month of August 2017 and was assured that balance amount of Rs.20,000/- would be paid shortly. Based on the assurance, plaintiff continued her services with defendant no.1. Due to the hostile work environment and hostile conduct of defendant no.2, a police complaint was also filed against defendant no.2 by a female staff of defendant no.1 after which defendant no.2 apologized in writing. However, things did not improve.
6. Prior to resigning on 12.10.2017, plaintiff had approached defendant no.2 with advance one month prior intimation for resigning from her services but defendant no.2 refused to receive the said intimation and told her that it was not required in terms of appointment letter. On several occasions, the plaintiff requested for her outstanding salary for the month of August, September and October but was not paid.
7. On 12.10.2017 through a whatsapp communication, she tendered her resignation. She last attended the office on 16.10.2017, completed the handing over formalities and intimated defendant no.2 that she would not be coming to work from 17.10.2017. Resignation was tendered via e-mail dated 17.10.2017 to defendant no.2. The said e-mail was responded to by Sh. Manish Sharma (Chartered Accountant of defendant no.1) 4 of 26 Tanu Arora v. M/s Divine Destiny Buying Service Pvt. Ltd. & Anr. CS SCJ No. 577/18 and Counter Claim No. 894/18 stating that he would revert regarding her outstanding salary dues however, he did not. Legal notice dated 10.11.2012 was served upon the defendants. In reply thereto, they made false and baseless allegations against the plaintiff.
8. Appointment letter dated 10.07.2017 is a clear, valid and binding agreement between the parties and by refusing to release the rightful outstanding salary dues to the plaintiff, defendants have committed breach of the same. Thus, the suit is filed to claim outstanding salary dues of Rs.85,000/- alongwith pendente lite and future interest @ 18% per annum as demonstrated in the table below:
Month Particulars/ Part Payment Amount Due August 2017 Rs. 25,000/- part payment Rs. 20,000/-
by defendant no.2
September 2017 None Rs. 45,000/-
October 2017 None Rs. 20,000/-
till
16.10.2017
TOTAL Rs. 85,000
Written statement and counter-claim
9. By virtue of the written statement, suit is opposed by the defendants as false and frivolous, and a counter-claim for an amount of Rs.38,635/- under Order VIII Rule 6A CPC is filed by defendant no.1 against the plaintiff.
10. It is contended that the suit is bad for mis-joinder of 5 of 26 Tanu Arora v. M/s Divine Destiny Buying Service Pvt. Ltd. & Anr.
CS SCJ No. 577/18 and Counter Claim No. 894/18 defendant no.2 as defendant no.1 is a separate legal entity and defendant no.2, being the director, cannot be held personally liable. Plaintiff did not work for a period of three months as claimed. She was interviewed in the month of July 2017 and at her request, appointment letter was issued to enable her to tender her resignation with her previous employer.
11. On 25.07.2017, she informed that she will be joining from 01.09.2017 but if defendant no.1 paid her notice period salary to the previous employer, she could join in August 2017. Defendant agreed to pay subject to the condition that the said amount will be adjusted against her salary.
12. After joining work, the plaintiff was highly irregular. She absented for 10 days without intimation on account of sickness in August, 12 days in September and 24 days in October. Despite being asked to do so, she neither produced the medical certificates nor bills, which was in violation of the appointment letter. Police complaint against defendant no.2 was filed by one Ms. Nirmala and was supported by the plaintiff despite remaining absent from office.
13. Inspite of several reminders, plaintiff signed the appointment letter only on 29.09.2017. Total salary payable to her was not Rs.45,000/- per month since Rs.1250/- towards medical reimbursement and Rs.8400/- towards other allowances 6 of 26 Tanu Arora v. M/s Divine Destiny Buying Service Pvt. Ltd. & Anr. CS SCJ No. 577/18 and Counter Claim No. 894/18 were subject to furnishing of bills, which were never furnished by the plaintiff.
14. Manipulating defendant no.1, plaintiff requested for an advance of Rs.25,000/-, which was duly transferred into her bank account on 19.09.2017. For her services, plaintiff was eligible for a total salary of Rs.53,595/- only. However, an advance of Rs. 56,880/- had already been paid to her by defendant no.1. Besides, for failure to give notice, an amount of Rs.35,350/- is additionally payable by the plaintiff. In effect, plaintiff is required to pay a total sum of Rs.38,635/- to defendant no.1 as demonstrated in the table below:
S. No. Particulars Amount
1. Salary for the month of August, 2017 Rs.23,946/-
for 21 days i.e. Rs.22,5000PM + Rs.1150PM + Rs.1600PM (no bills for medical and other allowances submitted) absent for 10 days
2. Salary for the month of September, Rs.21,667/-
2017 for 91 days i.e. Rs.22,5000PM + Rs.1150PM + Rs.1600PM (no bills for medical and other allowances submitted) absent for 11 days
3. Salary for the month of October, 2017 Rs.7,982/-
for 7 days i.e. Rs.22,5000PM + Rs.1150PM + Rs.1600PM (no bills for medical and other allowances submitted) absent for 24 days Total salary due till 11.10.2017 Rs.53,595/-
4. Less amount paid in August, 2017 as -31,880 advance
5. Less amount paid in September, 2017 as -25,000 advance 7 of 26 Tanu Arora v. M/s Divine Destiny Buying Service Pvt. Ltd. & Anr. CS SCJ No. 577/18 and Counter Claim No. 894/18 Resignation tender on 12.10.2018 -35,350 without giving notice period or amount, according to terms & condition to be received from the plaintiff by the defendant no.1 i.e. one month salary.
Total amount due from the plaintiff to Rs.38,635/- defendant no.1 Replication/ reply to counter-claim
15. By virtue of the replication to the written statement (filed in the main suit by the defendants) as well as reply to the counter- claim filed by the plaintiff, contents of the written statement/counter-claim are opposed and averments of the plaint are reiterated. It is additionally stated that defendant no.2 is exercising complete control over defendant no.1 and salary of the plaintiff has been withheld at his instance, making him a necessary party to the suit.
Replication to the reply to counter-claim
16. By virtue of the replication filed by defendant no.1, contents of the reply to the counter-claim are opposed and contents of the written statement/counter-claim are reiterated.
Issues
17. On the basis of aforesaid pleadings, following issues were framed vide order dated 06.06.2019:-
Issues in Suit No. 577/181. Whether suit is bad for non-joinder/mis-joinder of 8 of 26 Tanu Arora v. M/s Divine Destiny Buying Service Pvt. Ltd. & Anr.
CS SCJ No. 577/18 and Counter Claim No. 894/18 parties? OPD
2. Whether plaintiff is entitled to recover sum of Rs.85,000/- from the defendant? OPP
3. Relief.
Issues in counter claim no. 894/18
1. Whether counter claimant is entitled to recover sum of Rs.38,635/- from plaintiff due to breach of terms and conditions of the employment? Onus on counter- claimant.
2. Relief.
Plaintiff's evidence
18. Parties led consolidated evidence in civil suit bearing no.577/18 and counter-claim bearing no. 894/2018. In order to prove its case, plaintiff examined only one witness i.e. plaintiff herself as PW-1.
19. PW-1 Ms. Tanu Arora tendered her affidavit of evidence as Ex.PW1/A and relied upon original letter of appointment dated 10.07.2017, Ex.PW1/1; bank statement for the month of July to September, Ex.PW1/2; transcripts of the whatsapp messages exchanged between Ms. Tanu Arora and defendant no.2 dated 12.10.2017, Ex.PW1/3; e-mail dated 17.10.2017 sent by Ms. Tanu Arora to defendant no.1., Ex.PW1/4; e-mail dated 17.10.2017 sent by Mr. Manish Sharma to Ms. Tanu Arora, 9 of 26 Tanu Arora v. M/s Divine Destiny Buying Service Pvt. Ltd. & Anr. CS SCJ No. 577/18 and Counter Claim No. 894/18 Ex.PW1/5; legal notice dated 10.11.2017, Ex.PW1/6; reply of the legal notice dated 10.11.2017, Ex.PW1/7; the screen shot of whatsapp messages dated 10.09.2017 & 25.09.2017, Ex.PW1/8 & Ex.PW1/9; certificate u/s 65 B of Indian Evidence Act qua the whatsapp messages dated 12.10.2017 and e-mails dated 17.10.2017, Ex.PW1/10; certificate u/s 65 B of Indian Evidence Act regarding whatsapp messages dated 19.09.2017, 25.09.2017 and 29.09.2017, Ex.PW1/11; and certificate u/s 65 of Indian Evidence Act regarding bank statement of Indusind Bank, GK-II bearing account no. 100036963404 of Ms. Tanu Arora for the period from August 2017 till 31.10.2017, Ex.PW1/12. She was duly cross examined on behalf of the defendants.
Defendant's evidence
20. On behalf of the defendants as well, only one witness in the form of defendant no.2 (as authorized representative of defendant no. 1) was examined as DW-1. He tendered his evidence by way of affidavit Ex.DW1/1 and relied upon board resolution, Ex.DW1/A. He was duly cross-examined on behalf of the plaintiff.
Findings
21. Parties advanced their final arguments as per pleadings. I have perused the record and considered the evidence and arguments of the parties. My issue-wise findings as under:
10 of 26 Tanu Arora v. M/s Divine Destiny Buying Service Pvt. Ltd. & Anr.
CS SCJ No. 577/18 and Counter Claim No. 894/18 ISSUE No.1 (Civil Suit No.577/18) Whether suit is bad for non-joinder/ mis-joinder of parties?
OPD
22. It is contended by the defendants that defendant no.1 has its separate legal entity and defendant no.2 cannot be held personally liable for the actions of defendant no.1. He is improperly joined as a defendant in this suit and the suit is bad for mis-joinder of parties. On the other hand, stand of the plaintiff is that defendant no.2 is a necessary party as he is solely responsible for the conduct of business of defendant no.1 and exercises complete control over it. Corporate veil needs to be lifted to determine the personal liability of defendant no.2.
23. It is settled law that directors are not personally liable for the acts of the company and owe no contractual duty qua a third party. As per the case of Mukesh Hans & Anr. v. Uma Bhasin,1 there are only two exceptions to this rule viz. (a) if there is a personal guarantee, indemnity etc. and (b) if director induces third party to act to his detriment by advancing loan to the company and third party proves fraudulent misrepresentation.
24. As per the case of Sanuj Bathla & Anr. v. Manu Maheshwari & Anr.,2 the doctrine of lifting/ piercing the corporate veil is an exception to the principle that a company is a legal entity, separate and distinct from its shareholders, with its 1 2010 SCC OnLine Del 2776.
2 Judgment dated 12.04.2021 of the Hon'ble High Court of Delhi in CRP 166/2018.
11 of 26 Tanu Arora v. M/s Divine Destiny Buying Service Pvt. Ltd. & Anr. CS SCJ No. 577/18 and Counter Claim No. 894/18 own legal rights and obligations. It discards the separate entity of the company and attributes the acts of the company to those who are in direct control of its operations. It was held by the Hon'be Delhi High Court that "It has to be borne in mind that the doctrine is not available in every case of alleged liability against a Company. It is only available in restricted cases and limited circumstances, where it is permissible to so do under a Statute or where the corporate structure has been instituted to perpetuate a fraud or is a camouflage, facade or sham to avoid liability or in a case where effect has to be given to a beneficial legislation."
25. Let us analyze the facts of the present case in light of the position of law stated above. In the present case, services of the plaintiff were engaged by defendant no.1 in her capacity as a "designer" for its business. The appointment letter Ex. PW1/1 was signed by defendant no.2 as authorized representative of defendant no.1 and not in his personal capacity. There are bald averments in the plaint regarding hostility and non-conducive work environment, completely unsubstantiated by specific details or evidence. There are no allegations of fraud or misrepresentation against defendant no.2. It is also not the case of the plaintiff that defendant no.2 undertook personal guarantee to pay the salary/ dues of the plaintiff.
26. Thus, the averments in the plaint do not justify the lifting of the corporate veil to make defendant no.2 personally liable.
12 of 26 Tanu Arora v. M/s Divine Destiny Buying Service Pvt. Ltd. & Anr. CS SCJ No. 577/18 and Counter Claim No. 894/18 Being a company, defendant no.1 has its separate legal entity having its own rights and obligations. Hence, defendant no.2 does not have any personally liability vis a vis the plaintiff, and is not a necessary or proper party.
27. Having said that, merely because defendant no.2 is arrayed as a defendant when he should not have, does not render the suit bad for mis-joinder/ non-joinder. It in no way affects the rights/liabilities of defendant no.1 qua the plaintiff, and the court can very well proceed to determine the rights and interests of the other parties before it i.e. plaintiff and defendant no.1.
ISSUE No.2 (Civil Suit No.577/18) Whether plaintiff is entitled to recover sum of Rs. 85,000/- from the defendant? OPP & ISSUE No.1 (Counter-claim No. 984/18) Whether counter claimant is entitled to recover sum of Rs.38,635/- from plaintiff due to breach of terms and conditions of the employment? Onus on counter-claimant.
28. Since both these issues involve common points and can be decided through common discussion, these are being dealt with together.
29. In a nutshell, case of the plaintiff is that she had joined the 13 of 26 Tanu Arora v. M/s Divine Destiny Buying Service Pvt. Ltd. & Anr. CS SCJ No. 577/18 and Counter Claim No. 894/18 services of defendant no.1 on 10.07.2017, worked diligently and resigned thereafter due to hostile work environment. She was not paid complete salary for this period, and an amount of Rs.85,000/- remains outstanding as demonstrated in para 8. On the other hand, stand of the defendant is that the plaintiff had joined on 01.08.2017. She was highly irregular and absented for 45 days between August to October 2017. She failed to serve the notice period and received certain sums from the defendant no.2 as advance that are liable to be adjusted against her payable salary. She owes Rs.38,635/- to the defendant after all due adjustment as demonstrated in para 14 in detail.
30. It is an admitted position between the parties that till date, a total sum of Rs.56,880/- has been paid by defendant no.1 to the plaintiff. The parties are at dispute over the date of joining, number of leaves or actual working days, applicability of the notice condition to the plaintiff, quantum of payable salary and last working day of the plaintiff. Let us proceed to discuss each of these in detail.
Date of joining
31. As stated above, case of the plaintiff is that she had joined on 10.07.2017 whereas defendant contends that she had joined on 01.08.2017. In this respect, Ex.PW1/1 (i.e. appointment letter between defendant no.1 and the plaintiff) is dated 10.07.2017 and also records that "You must join on 10.07.2017, failing which the 14 of 26 Tanu Arora v. M/s Divine Destiny Buying Service Pvt. Ltd. & Anr. CS SCJ No. 577/18 and Counter Claim No. 894/18 offer will lapse". It was contended by the defendant that since the plaintiff signed the said letter on 26.09.2017, it was only then that the offer was accepted and a valid contract came into being in terms of the Indian Contract Act, 1872. However, this does not reflect the understanding between the parties and is also not consistent with the other material available on record.
32. It is the defendants' own case that the plaintiff had joined in August 2017. Thus, the very significance of the date on which the said letter was signed by the plaintiff is lost and it is immaterial that the plaintiff signed the letter on 26.09.2017. Since the appointment letter is dated 10.07.2017, it prima facie shows that the same was the date of joining for the plaintiff. Onus was on the defendant to disprove the same by producing official records to establish that the plaintiff in fact joined in August. However, no such record was produced before the court.
33. It is also pertinent to note that an amount of Rs.31,880/- had been paid to the plaintiff by defendant no.1 on 18.08.2017. Plaintiff claims that this amount was paid towards salary for 22 days from 10.07.2017 to 31.07.2017. On the other hand, the defendants contend that this amount had been paid to the plaintiff such that she could pay the same to her current employer who would then relieve her to join defendant no.1. This contention of the defendants is completely unsupported by any evidence on record. It also defeats logic on several counts. It raises questions 15 of 26 Tanu Arora v. M/s Divine Destiny Buying Service Pvt. Ltd. & Anr. CS SCJ No. 577/18 and Counter Claim No. 894/18 such as why the said amount will be paid to the plaintiff and not directly to the previous employer; and why would the amount be paid in mid-August if the objective was to enable the plaintiff to pay off the previous employer such that she could join defendant no.1 from 1st August,2017 (which she did as per the case of the defendant himself)?
34. As per the cross-examination of PW-1, she was drawing an amount of Rs.45,000/- from the previous employer. However, the amount paid was only Rs.31,880/-. During cross-examination, PW-1 clarified that she had left the services of the previous employer in January 2017. No evidence to rebut the same was led by the defendant to show that plaintiff was infact serving any other employer at the relevant time.
35. There is no whisper of the name of said previous employer for whose benefit this amount was paid by defendant no.1. Having made this payment to the plaintiff, no proof was sought from her regarding the onward payment made to the said employer! No documents were sought from the plaintiff to determine the exact salary that was payable to such previous employer, and if sought, the same were not produced before this court.
36. Besides, it is extremely unlikely that an advance amount would be paid to a probationer by a private company in this day 16 of 26 Tanu Arora v. M/s Divine Destiny Buying Service Pvt. Ltd. & Anr. CS SCJ No. 577/18 and Counter Claim No. 894/18 and age to enable her to fulfill her contractual obligation to another company without verifying any details and recording the alleged understanding in writing, that too when the plaintiff was simply a probationer who had not even started working with defendant no.1.
37. For all the aforesaid reasons, the argument of the defendant that the said payment was an advance to the plaintiff for paying off her previous employer does not hold water, and in all likelihood this amount was paid to her as remuneration for her services that had already commenced. This is further substantiated by the fact that salary for 22 days (i.e. from 10.07.2017 to 31.07.2017) calculated on the basis of Rs.45,000/- as gross salary (subject to taxes) equals the same amount (of Rs. 31,880/-) approximately i.e. 45000/31 * 22 = 31,935.93. The slight difference in the amount could be an adjustment for taxes.
38. In view of the above discussion, it can be safely concluded on the basis of balance of probabilities that plaintiff had joined the services of defendant no.1 on the date of the appointment letter i.e. 10.07.2017.
Applicability of notice condition in Clause 4.1
39. As per clause 4.1 of Ex.PW1/1 i.e. appointment letter dated 10.07.2017, "The company may terminate your services by giving one(1) month's written notice or paying one month's 17 of 26 Tanu Arora v. M/s Divine Destiny Buying Service Pvt. Ltd. & Anr. CS SCJ No. 577/18 and Counter Claim No. 894/18 salary in lieu thereof without assigning any reasons. This is not applicable for the probation period. Similarly, you may resign from the service of the Company by giving one month's notice in writing or paying one month's salary in lieu thereof. No un- availed leaves may be used in lieu of serving your notice period". As per clause 4.1, while the one-month written notice or one- month salary in lieu thereof condition was not applicable to defendant no.1 during the probation period, there was no such differentiation made as far as the plaintiff was concerned. Further, as per this clause, a written notice was required to be given.
40. Ex.PW1/1 is an admitted document. It was duly signed by defendant no.2 (on behalf of defendant no. 1) and also the plaintiff thereby signifying their acceptance to the terms and conditions therein including clause 4.1. In the plaint as well as affidavit of evidence i.e. Ex.PW1/A (more specifically para no. 16 of the plaint and para no.19 of Ex.PW1/A), plaintiff states that "The appointment letter dated 10.07.2017 is clear, valid and binding agreement between the parties". The pleadings are silent about the plaintiff having any reservation regarding any clause of the appointment letter including clause 4.1. Also, a perusal of the pleadings and the evidence suggests there was consensus ad idem between the parties about the requirement of clause 4.1 as well as their willingness to comply with the same.
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41. In the plaint as well as affidavit of evidence i.e. Ex.PW1/A (more specifically para no. 10 of the plaint and para no.12 of Ex.PW1/A), the plaintiff states that she had approached defendant no.2 with advance one month intimation for resigning from her services, thereby showing her willingness to comply with clause 4.1 as well as reflecting her clear understanding of her obligation under the contract. Although the plaintiff states that she was informed by defendant no.2 that she was not required to give any such advance intimation, the same is not corroborated by any other evidence. Even while tendering her resignation via e-mail Ex.PW1/4, plaintiff states that she would not be able to serve her notice period as the presence of defendant no.2 in the company was a strong threat to her integrity. Thus, even at that stage, the plaintiff was aware that she was not abiding by clause 4.1 of the appointment letter.
42. Now to turn around during the course of arguments to plead that clause 4.1 is invalid as it does not equally apply to both the parties, seems to be an afterthought to escape the obligations contained therein. Clause 4.1, even if tilted in favour of the defendant, was duly accepted by the plaintiff not only by signing on the dotted line but by also demonstrating the same through her subsequent conduct.
43. There were no circumstances specified in Ex. PW1/1 under which the plaintiff was not required to comply with clause 4.1.
19 of 26 Tanu Arora v. M/s Divine Destiny Buying Service Pvt. Ltd. & Anr. CS SCJ No. 577/18 and Counter Claim No. 894/18 Thus, even if the plaintiff resigned on account of hostile work environment, applicability of clause 4.1 remains unaffected. It may be added here that the allegations of hostile work environment and hostile conduct of defendant no.2 remain unsubstantiated and not proved.
44. It is an admitted fact that the notice period was not served by the plaintiff. Accordingly, in terms of clause 4.1, plaintiff is liable to pay one month salary to defendant no.1 in accordance thereof.
Unauthorized leaves/Actual Working Days
45. It is the case of the defendants that the plaintiff frequently absented from work without intimation while the plaintiff claims that she was regularly attending office. The only evidence to prove this either way could be the attendance record maintained by defendant no.1 or statement of witnesses (particularly the employees working in the same department as the plaintiff) who were in the know of her punctuality and daily visits to the office.
46. As noted earlier, no attendance record has been produced before the court. During cross-examination, PW-1 stated that attendance register was not maintained but attendance sheet was maintained by their employee Mr. Ravi. Neither the said attendance sheet nor said Mr. Ravi was produced before this court in support of the defendants' contentions. As per Section 20 of 26 Tanu Arora v. M/s Divine Destiny Buying Service Pvt. Ltd. & Anr. CS SCJ No. 577/18 and Counter Claim No. 894/18 114 of the Indian Evidence Act, the court may presume that evidence which could be and is not produced, would, if produced be unfavourable to the person who withholds it. This presumption has not been rebutted and an adverse inference is liable to be drawn against the defendants.
47. Besides, no independent witnesses were examined on behalf of the defendant who could depose as to the work ethics/ punctuality of the plaintiff. The only witness examined on behalf of the defendant was DW-1 in his capacity as director of defendant no.1. However, his evidence does not inspire much confidence due to his evasive replies as well as inability to recollect facts pertaining to the plaintiff or the dispute at hand. During cross-examination, he stated that plaintiff used to take unauthorized leaves but he had no evidence to prove the same.
48. The stance of the defendants qua unauthorized leaves again raises more questions than providing answers. It is beyond understanding as to why payment of Rs.31,880/- and then a subsequent payment of Rs.25,000/- (both claimed as advance payments by the defendant) will be paid to the plaintiff when she had not been working diligently and punctually. It is the defendants' own contention that Rs.31,880/- was paid to the plaintiff to pay to her previous employer which amount would then be set off against her salary. However, instead of asking for repayment of that amount, a further sum of Rs.25,000/- was 21 of 26 Tanu Arora v. M/s Divine Destiny Buying Service Pvt. Ltd. & Anr. CS SCJ No. 577/18 and Counter Claim No. 894/18 advanced to her!
49. Further, Ex.PW1/1 states in clear terms that the plaintiff was not permitted to take any leave during the probation period (clause 3.1 of Ex.PW1/1). Despite this condition, why was no action taken against the plaintiff for such huge number of leaves and why was she allowed to continue work (without any warnings), remains unexplained. Neither the dates on which the plaintiff remained on leave nor her leave record has been filed before the court.
50. In view of the above, balance of probability strongly suggests that no unauthorized leaves were taken by the plaintiff.
Payable Salary
51. As per Ex.PW1/1, the salary structure agreed between the parties was as follows:
Monthly Basic Salary Rs.22,500.00 HRA Rs.11,250.00 Transport Rs.1,600.00 Medical Reimbursement Rs.1,250.00 Other Allowances Rs.8,400.00 Gross Salary (subject to taxes) Rs.45,000.00
52. The plaintiff claims her salary was Rs.45,000/- per month whereas the defendants claims that the total salary was 22 of 26 Tanu Arora v. M/s Divine Destiny Buying Service Pvt. Ltd. & Anr. CS SCJ No. 577/18 and Counter Claim No. 894/18 Rs.35,350/- as the heads of 'medical reimbursement' and 'other allowances' were payable subject to depositing bills to that effect (which was not done by the plaintiff).
53. This contention of defendants is completely unsupported by any other documentary evidence. There is no term in the appointment letter, Ex. PW1/1 which suggests that these two components of salary were to be paid only after submission of bills. A bare look at the appointment letter would clarify to any reasonable person that the gross salary for which the services of the plaintiff were engaged was Rs.45,000/- subject to taxes. The calculation in para no. 37, also supports the fact that the payable salary was Rs.45,000/- and not Rs.35,350/-, as contended by the defendant.
54. Thus, salary of the plaintiff was Rs. 45,000/- per month, subject to taxes only.
Last working day of the plaintiff
55. While the defendant contends that the plaintiff worked only till 11.10.2017, plaintiff has claimed salary till 17.10.2017. The pleadings are marred with contradictory statements of the plaintiff regarding her last working day. On the one hand, she claims that she went to office and completed handover formalities on 17.10.2017, on the other hand, she claims that she had tendered her resignation on 12.10.2017 and intimated the 23 of 26 Tanu Arora v. M/s Divine Destiny Buying Service Pvt. Ltd. & Anr. CS SCJ No. 577/18 and Counter Claim No. 894/18 defendant that she would not be coming after 12.10.2017.
56. Plaintiff herself relies on conversation contained in Ex. PW1/3 whereby she seeks her salary till 12.10.2017. In the email resignation Ex. PW1/4 (same as Ex. PW1/5) as well, plaintiff states that she had already asked her salary to be released on 12.10.2017.
57. This controversy is put to rest during cross-examination when PW1 states on more than one occasion that she did not attend office after 12.10.2017. She states that "I came to DDBS upto 12th October, 2017". Further, in response to a suggestion to the effect that even after receiving e-mail dated 17.10.2017, she had not come for handing over her work, she states that: "I did not come to the office after 12th of October, 2017. Moreover, I had resigned so there was no requirement to come thereafter."
58. On the basis of this categorical admission, it is concluded that the last working day for the plaintiff was 12.10.2017.
Conclusions
59. On the basis of the above discussion, the following emerge:
(i) plaintiff joined the services of defendant no.1 on 10.07.2017;
(ii) she resigned during probation period;
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(iii) plaintiff stopped attending office after 12.10.2017, without serving the notice period or paying one month salary;
(iv) plaintiff did not take any unauthorized leaves during that period;
(v) monthly salary payable to the plaintiff was Rs.45,000/- per month; and
(vi) she was paid for her services by defendant no.1 only for the month of July 2017 (Rs. 31,880/-) and partly for the month of August 2017 (Rs. 25,000/-).
60. In this view of the matter, outstanding salary of the plaintiff is Rs. 82,419/- as per the calculation below:
For August 2017 : Rs.20,000/- (Rs. 45,000 minus Rs.25,000) For September 2017 : Rs.45,000/- (being the monthly salary) From 1st till 12th October 2017 : Rs.17,419/- (Rs.45000/31 * 12)
61. For failure to serve the notice period in accordance with clause 4.1 of the appointment letter, plaintiff is liable to pay one month's salary i.e. Rs.45,000/- to defendant no.1.
62. Resultantly, plaintiff is entitled to recover Rs.37,419/- (Rs.82,419/- - Rs.45,000/-) from defendant no.1.
25 of 26 Tanu Arora v. M/s Divine Destiny Buying Service Pvt. Ltd. & Anr. CS SCJ No. 577/18 and Counter Claim No. 894/18 ISSUE No.3 (Civil Suit No.577/18) & ISSUE No.2 (Counter-claim No. 984/18) Relief
63. In view of my findings on the aforesaid issues, suit (CS no.577/18) and counter-claim (CS no.894/18) are disposed off in the following terms:
(i) Suit of the plaintiff stands partly decreed and plaintiff is entitled to recover sum of Rs. 37,419/-
(Rupees Thirty Seven Thousand Four Hundred and Nineteen only) from defendant no.1 along-with interest @ 6% per annum (from the date of filing of the suit till realization of the amount) along-with costs of the suit.
(ii) Suit of plaintiff stands dismissed qua defendant no.2.
(iii) Counter claim of defendant no.1 stands dismissed.
64. Decree sheet be drawn accordingly. File be consigned to record room after due compliance.
Announced in the open Court (NEHA PRIYA)
on 31.01.2023 ACJ-CCJ-ARC(South)
Saket Courts/Delhi
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