Delhi District Court
M/S Edcil ( India ) Ltd vs Mrs. Aradhana Garg on 11 September, 2013
1
IN THE COURT OF SHRI KAPIL KUMAR, CIVIL JUDGE01
(WEST),
TIS HAZARI COURTS, DELHI..
Suit No. 89/11
UNIQUE I.D. NO. 02401C013332011
Date of Institution : 24.03.2011
Date of reservation of judgment : 09.09.2013
Date of pronouncement of Judgment : 11.09.2013
IN THE MATTER OF :
M/s Edcil ( India ) Ltd.
( A Govt. of India Enterprise)
Having its registered office at
10B, I.P. Estate
New Delhi110002.
....Plaintiff
Vs
1. Mrs. Aradhana Garg
W/o Sh. Rajneesh Garg
R/o A3/116, Third Floor
Paschim Vihar
New Delhi110063.
Also AT
Suit NO. 89/11
2
C/o M/s Umesh Chand & Co.
Chartered Accountants, 1315, Ansal Tower
38, Nehru Place, New Delhi110019
2. Sh. Rajneesh Garg
S/o Sh. Prem Kumar Garg
R/o A3/116, Third Floor
Paschim Vihar
New Delhi110063.
.............Defendants
SUIT FOR RECOVERY OF RS .73,150/
JUDGMENT
Case of plaintiff.
1. Plaintiff is a Government of India Enterprise and is constituted under the Companies Act, 1956 having its registered office at 10B, I.P. Estate, New Delhi02. It is stated on behalf of plaintiff that defendant no.1 joined the plaintiff company as Senior Executive ( Finance) on 26.5.2010 on contract basis in terms of offer letter no. 10 ( 22*)/2007Admn dated 17.5.2010 at a monthly remuneration of Rs. 35,000/ and in terms of the said Suit NO. 89/11 3 offer letter, it was specifically stipulated that the appointment shall be on purely contract basis initially for two years w.e.f the date of joining the duty by defendant no.1.
2. It is further stated by the plaintiff that in terms of the offer letter, it was specifically stipulated that during the initial period of contract of two years, the defendant no.1 shall not leave the plaintiff company and defendant no.1 also admitted and acknowledged the terms and conditions as contained in the said offer letter and accordingly the defendant no.1 and 2 executed an employment bond/surety bond dated 20.5.2010 duly signed by them in presence of two witnesses, namely Ms. Seema Bansal and Ms. Sushma Gupta, thereby categorically undertaking that in the event of her leaving the plaintiff company during the initial period of two years they shall pay two months remuneration to the plaintiff company.
3. It is further stated that the defendant no.1 after accepting the terms and conditions as contained in appointment letter and after executing the surety bond joined her duties w.e.f 26.5.2010. Thereafter defendant no.1 in utter violation to the agreed terms and conditions left the plaintiff company without assigning any reason and without informing the plaintiff in writing started remaining unauthorizedly absent w.e.f 08.12.2010. Plaintiff company issued an office memorandum dated 21.12.2010 to the defendant no.1 thereby requiring her to report for duty immediately. Again vide office memorandum dated 28.12.2010 defendant no.1 was required to report on duty but inspite of Suit NO. 89/11 4 the service of memorandums, defendant no.1 not joined her duties.
4. Plaintiff further states that defendant no.1 and 2 were under obligation to comply with the stipulations as contained in the surety bond dated 20.5.2010 and were called upon vide notice dated 05.1.2011 to pay a sum of Rs. 70,000/ as damages in terms of the surety bond but the notice received back unserved with the report ' recipient is out of Delhi.'
5. Plaintiff further states that it is subsequently revealed that defendant no.1 without submitting the resignation letter to the plaintiff and without settling the accounts and relieved from the plaintiff company joined M/s Umesh Chand & Company. Plaintiff sent a letter dated 24.1.2011 addressed to Mr. Umesh Chand Goel partner in M/s Umesh Chand & Company requiring him to impress upon defendant no.1 to pay Rs. 70,000/ to the plaintiff but the said communication also remained unresponded.
6. By virtue of present suit the plaintiff is praying for the relief that a decree for a sum of Rs. 73,150/ alongwith pendente lite and future interest @ 18 % p.a be passed in favour of plaintiff and against the defendant. Case of defendants
7. By virtue of preliminary objections it is stated on behalf of defendants that the suit is not maintainable as the same is not filed by duly authorized person. Further states that there was a breach of contract by the plaintiff as the job profile assigned to defendants was different as was offered in offer letter. Further states that plaintiff company has created such Suit NO. 89/11 5 circumstances in which it was difficult for the defendant no.1 to work and as such the defendant no.1 was required to appear before the service tax commissioner who does not have any experience regarding this. It is denied on behalf of defendant that it was incumbent upon defendant no.1 to serve the plaintiff company for two years as per the contract of appointment.
8. Defendant further states that she has received the letter of offer of appointment dated 17.05.10 without any enclosure containing the terms and conditions. On 20.05.10 defendant no. 1 went to the office of plaintiff company where she was handed over the suety bond and was asked to signed the same. Further states that she objected to increase the bond period for two years from one year without any intimation but she had to sign the suety bond as she already left her earlier job and had no alternative but to succumb to coercive and unreasonable demand of the officers of the plaintiff.
9. Defendant further submits that she was given a completely different job profile from the profile agreed upon at the time of appointment. She was assigned the task of visiting the office of Service Tax Commissioner at ITO and Nehru Palace and was told to liaison and to obtain favour for the company's matter. Further states that the task assigned by humiliating and was causing unnecessary strain upon the defendant being a lady. Further states that she was forced to take EL instead of CL even though many CLs were in the account of defendant no. 1.
10. It is further submitted that no training was given to defendant no. Suit NO. 89/11 6 1, as agreed, on the other hand very harsh circumstances were created by the plaintiff company in which it was impossible for defendant no. 1 to sustain in the employment and thus, defendant no. 1 decided to leave the job and inform the same to the officials of plaintiff over the telephone against which no objection was raised by the officials of plaintiff on that day. Further states that present suit is filed just to harass the defendants and is liable to be dismissed.
11. Replication filed on behalf of plaintiff in which all the contentions of the defendants were denied and stand of plaint was reiterated.
12. Vide Order dated 20.7.2012 following issues were framed :
1. Whether the plaintiff is entitled to the decree of sum of Rs. 73,150/ as prayed for ? OPP
2. Whether the plaintiff is entitled to interest, if any. If so, at what rate and for what period ? OPP.
3. Whether the plaint has been signed, verified and instituted by a duly authorized person ? OPP
4. Relief.
13. In plaintiff evidence Sh. Bishawambhar Datt, Deputy General Manager was examined as PW1. In his testimony following documents were exhibited :
"GPA as Ex. PW 1/1 ( OSR) , Certificate of incorporation as Ex. PW 1/ 2, Suit NO. 89/11 7 Resolution as Ex. PW 1/ 3 ( OSR), letter as Ex. PW 1/ 4, surety bond dated 20.5.2010 as Ex. PW 1/ 5, acceptance letter dated 19.5.2010 as Ex. PW 1/ 6, office order dated 03.6.2010, 16.11.2010 as Ex. PW 1/7, Office order dated 16.11.2010 as Ex. PW 1/8, office memorandum dated 21.1.2010 as Ex. PW 1/9, postal receipt dated 21.12.2010 as Ex. PW 1/10, memorandum dated 28.12.2010 as Ex. PW 1/11, postal receipt dated 28.12.2010 as Ex. PW 1/12, notice dated 05.1.2011 as Ex. PW 1/13, postal receipt dated 05.1.2011 as Ex. PW 1/ 14, two returned envelops as Ex. PW 1/15 and Ex. PW 1/16, notice dated 13.1.2011 as Ex. PW 1/17, receipt dated 13.1.2011 as Ex. PW 1/18 , letter dated 24.1.2011 as Ex. PW 1/19, postal receipt dated 24.1.2011 as Ex. PW 1/20, applications for leave as Ex. PW 1/21 to Ex. PW 1/27."
14. In defendant evidence defendant no. 1 was examined as DW1. In her testimony medical prescriptions were exhibited as DW 1/1 ( colly).
15. I have heard the arguments advanced by Ld. counsels for parties and carefully perused the record.
16. My issuewise findings are as under :
Suit NO. 89/11 8
Issue no. 3 Whether the plaint has been signed, verified and instituted by a duly authorized person ? OPP
17. The present issue is not pressed during the final arguments even otherwise the plaint has been signed by manager (P&A) of plaintiff company, which is the Government of India Enterprise. Though there are some technical defect in the verification of the plaint yet the same could not be termed as illegalities hitting at the root of the matter. It is well settled law that every endeavour shall be made to dispose off the matter on merits rather on technicalities.
Issue is decided in favour of plaintiff and against the defendant. Issue no. 1.
Whether the plaintiff is entitled to the decree of sum of Rs. 73,150/ as prayed for ? OPP
18. The onus to prove this issue was upon the plaintiff.
19. Ld. Counsel for plaintiff argued that as per the surety bond executed by plaintiff she was bound to serve in the plaintiff company for two years but the defendant no. 1 committed the breach of contract by leaving job within two years of appointment and as such she is liable to pay the amount claimed by virtue of present suit. Per contra, ld. counsel for defendant argued that plaintiff company not suffered any loss due to the Suit NO. 89/11 9 leaving of job by the defendant and the plaintiff company did not impart any technical, behavioral and potential training for the welfare of defendant and as such the plaintiff company not entitled to any amount claimed.
20. As per letter of offer of appointment Ex. PW1/4 defendant was required to sign an employment bond to serve the plaintiff company for a period of one year and the bond has to be prepared on non judicial stamp paper of Rs. 100 duly attested by Notary . In compliance of this a surety bond on Rs. 100/ non judicial stamp paper was prepared, though for two years, which was signed by defendant no. 1 in presence of two witnesses.
21. The case of plaintiff revolve around this surety bond Ex. PW1/5. Ld. counsel for plaintiff submits that as per Ex. PW1/5 the defendant is under obligation to pay two months salary to the plaintiff as the defendant left the job within two years of appointment. Relevant clause of Ex. PW1/5 is reproduced as under.
" In the event of the above employee Aradhana Garg resigning/leave from the service at any time within a period of two years from the date of joining duty in EdCIL, the employee and the surety shall forthwith refund on demand two month remuneration to EdCIL on account of EdCIL agreeing to impart induction, technical, behavioural and potential training as well as welfare facilities to the employee, Suit NO. 89/11 10 at EdCIL's cost and expenses, on the terms and conditions contained in the offer letter".
22. Execution of exhibit PW1/5 not denied by the defendant in her cross examination. DW1 admitted that she signed the surety bond Ex. PQW1/5 after going through the contents of the same. As per above mentioned clause the defendant was under obligation to serve the plaintiff company for two years and in case defendant resign/leave the services of plaintiff company within two years of appointment, then the defendant has to pay two months remuneration to the plaintiff company on account of plaintiff company agreeing to impart induction, technical and other trainings to the defendant. It is clear from the above mentioned clause that the plaintiff company is entitled to amount equivalent to two months renumeration from the defendant if she has been given induction, technical or other trainings. PW1 deposed on same lines in his cross examination. Ex. PW1/13 is a notice for recovery of Rs. 70,000/ sent by plaintiff company to the defendant. In Ex. PW1/13 it is mentioned that plaintiff company has incurred expenses on imparting induction, technical, behavioral and potential training alongwith welfare facilities and thereby defendant is under obligation to pay Rs. 70,000/ to the plaintiff company.
23. DW1 deposed in evidence that she was not given any training by the plaintiff company. PW1 had admitted in cross examination that plaintiff company does not have any document to show that defendant no. 1 was given Suit NO. 89/11 11 any training by the plaintiff company. If any training is given to any employee by any company then proper schedule and objectives of the training have to be framed. The person who will train the employee also has to be selected. All these work require documentation. No document placed on record by the plaintiff company to show that defendant no. 1 has been given any kind of training. It is not mentioned in the plaint as to what kind of welfare activities undertook by the plaintiff company for the defendant. If plaintiff company had any welfare policy regarding its employee then the plaintiff company was at liberty to file the same on record, but no such steps were taken on behalf of plaintiff.
24. No dates of training were even mentioned by the plaintiff. In absence of any documentary proof regarding the training given by the plaintiff company to the defendant, the balance of probabilities tilted against the plaintiff as to the factum of giving alleged training or any conduction of welfare activities for the defendant.
25. In compliance to the terms and conditions of Ex. PW1/5 no training was given to the defendant nor any welfare activities were done by the plaintiff company for defendant no. 1. Hence the plaintiff itself not complied the terms of Ex. PW1/5 and thus committed breach of surety bond. If the plaintiff itself at lapse qua Ex. PW1/5 then how the plaintiff could ask the defendants to comply their undertaking which was conditional upon the act of plaintiff, which the plaintiff not did as above mentioned. Accordingly, Suit NO. 89/11 12 Ex. PW1/5 not complied in its true spirit. Hence the plaintiff not able to prove its case against defendants.
26. Issue is decided in favour of defendants and against the plaintiff.
Issue no. 2
27. Whether the plaintiff is entitled to interest, if any. If so, at what rate and for what period ? OPP.
28. The onus to prove this issue was on the plaintiff.
In view of finding on issue no. 1 the present issue is decided in favour of defendants and against the plaintiff.
Relief
29. In view of findings on issue no. 1 and 2, the suit is hereby dismissed.
No order as to cost.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
Announced in the open court ( Kapil Kumar )
today i.e 11.09.2013 Civil Judge01(West)/Delhi
Suit NO. 89/11