Delhi District Court
Sangeeta Ghera vs Humanitics Dimensions Software Pvt Ltd on 28 May, 2024
CS SCJ 860/21
SANGEETA GHERA Vs. HUMANITICS DIMENSIONS SOFTWARE PVT LTD
IN THE COURT OF MS. KANIKA AGARWAL, CIVIL
JUDGE-01 (SOUTH) SAKET COURT, NEW DELHI
Civil Suit No :- 860/21
CNR No :- DLST03-001633-2021
SANGEETA GHERA
W/o Sh. Ankit Ghera
R/o H.No. 795, Sector-3, R K Puram,
New Delhi-110022 ......PLAINTIFF
VERSUS
HUMANITICS DIMENSIONS SOFTWARE PVT. LTD.
Through its Managing Director
293, 4th Floor, Kehar Singh Estate
West End Marg, Lane 2,
Saidulajab,
New Delhi-110030 ......DEFENDANT
Date of Institution : 25.10.2021
Date of Decision : 28.05.2024
Date of framing of issues : 18.08.2022
Date of final arguments : 15.05.2024
Decision : PARTLY DECREED
SUIT FOR RECOVERY OF ARREARS OF SALARY AND
ALSO DAMAGES FOR WRONGFUL/ILLEGAL
TERMINATION OF THE PLAINTIFF
JUDGMENT:-
1. This is a civil suit filed for recovery of arrears of salary and also damages for wrongful/ illegal termination of the plaintiff.
Digitally signed by KANIKA AGARWAL KANIKA Page no. 1 of 15 Date: AGARWAL 2024.05.28 16:14:08 +0530 (Kanika Agarwal)
CJ-01/(South) Saket Court/New Delhi CS SCJ 860/21 SANGEETA GHERA Vs. HUMANITICS DIMENSIONS SOFTWARE PVT LTD AVERMENTS OF THE PLAINT:-
2. Succinctly, the case of the plaintiff is that the defendant she was appointed as a Technical Writer vide appointment letter dated 09.05.2016 in the defendant company and since that period, the plaintiff has been working tirelessly, vigorously and diligently for the growth of the company. It is stated that plaintiff was on maternity leave from 01.12.2019 till 01.06.2020 which was duly intimated by the plaintiff to the defendant company vide e-mail dated 09.10.2019 and same was acknowledged by the defendant company. It is stated that as per the leave policy given in annexure- II of the appointment letter dated 09.05.2016, plaintiff was eligible to receive full pay for 08 calender weeks of maternity leave availed by her. It is stated that since January 2020, all the countries including India has been reeling with unprecedented pandemic due to Covid-19 which resulted in all India Lockdown on 25.03.2020 which has been gradually increased for 14 days since then.
3. It is averred that plaintiff did not receive pay for 08 calender weeks during her maternity leave i.e. full salary for the period of March and April 2020. It is averred that in the month of May 2020, when plaintiff communicated to the defendant about joining back the work from 01.06.2020, the defendant terminated the employment of the plaintiff wrongfully without any prior notice or pay in lieu of notice, citing, organizational restructuring. It is averred that in the letter for appointment there is nothing about the Digitally signed by KANIKA Page no. 2 of 15 KANIKA AGARWAL AGARWAL Date:
2024.05.28 16:14:16 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 860/21 SANGEETA GHERA Vs. HUMANITICS DIMENSIONS SOFTWARE PVT LTD termination of employee but going by the Industry Practice the defendant must have given the plaintiff three month's prior notice in writing. It is stated that the employment agreement is nothing but a sham as it has always been signed under duress.
4. It is stated that instead of clearing the salary dues of the plaintiff, the defendant vide e-mail dated 10.07.2020 sent the experience and relieving letter. It is stated that plaintiff vide e-mail dated 31.07.2020, 07.08.2020, 26.08.2020 and 17.09.2020 urged the defendant to clear the salary dues but no reply was received to the said e-mails from the defendant. Thereafter, a legal notice dated 18.01.2021 was sent to the defendant. However, despite receipt of same, defendant neither replied nor made any payment. Having left with no other option, the present suit was filed seeking following relief:-
(a) Pass a decree for a sum of Rs. 76,000/- as arrears of salary for period April, May and June 2020 in favour of the plaintiff and against the defendant along with interest @ 18% per annum from the date of filing of the suit till realization of the entire amount;
(b) Pass an order to the defendant to pay damages for Rs.
2,00,000/- for wrongful/illegal termination of the plaintiff from the employment; and
(c) Any other relief.
WRITTEN STATEMENT OF DEFENDANT:-
Digitally signed by KANIKAKANIKA Page no. 3 of 15 AGARWAL AGARWAL Date:
2024.05.28 16:14:22 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 860/21 SANGEETA GHERA Vs. HUMANITICS DIMENSIONS SOFTWARE PVT LTD
5. Per contra, it is stated by defendant that present suit is a gross abuse of process of law and plaintiff by way of the present suit has mislead the court. It is stated that plaintiff has concealed the true and correct facts from this court. It is stated that defendant has paid full salary to the plaintiff for the months of December 2019, January 2020, February 2020 and May 2020, however, the defendant could not pay the entire salary but 60% only in the month of March and April 2020 due to reduction in work owing to the lock down across India. It is stated that defendant was constrained to release the partial salary during March 2020 and April 2020 as the defendants had other employees and expenses to meet. It is stated that defendant is ready and willing to pay 40% remaining salary for the months of March and April 2020 along with one month salary for the month of June 2020 in lieu of notice of termination of employment which arrives at Rs. 76,000/-. All the other averments of the plaint are denied. Thus, it is prayed that suit of the plaintiff is liable to be dismissed.
REPLICATION:-
6. In replication, averments of the plaint have been reiterated and contents of the written statement have been denied. ISSUES:-
7. From the pleadings of the parties following issues were framed by Ld. Predecessor of this court vide order dated 18.08.2022.Digitally signed by KANIKA
Page no. 4 of 15 AGARWAL KANIKA Date:
AGARWAL 2024.05.28 16:14:26 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 860/21 SANGEETA GHERA Vs. HUMANITICS DIMENSIONS SOFTWARE PVT LTD
(i) Whether the plaintiff is entitled to any interest on the amount of arrears of salary as claimed by the plaintiff? OPP
(ii) Whether plaintiff is entitled to any damages for wrongful/ illegal termination by the defendant? OPP
(iii) Relief.
PLAINTIFF EVIDENCE:-
8. To prove her case, the plaintiff herself stepped into the witness box as PW-1 and tendered her affidavit as Ex. PW1/A. She placed reliance upon the following documents:
(i) Ex. PW1/1 (OSR) i.e. copy of appointment letter dated 09.05.2016;
(ii) Ex. PW1/2 i.e. copy of e-mail dated 09.10.2019;
(iii) Ex. PW1/3 i.e. copy of e-mail dated 11.06.2020;
(iv) Ex. PW1/4 (colly) i.e. copy of e-mails dated 10.07.2020, 31.07.2020, 07.08.2020, 26.08.2020 and 17.09.2020;
(v) Ex. PW1/5 i.e. certificate u/S 65B IEA; and
(vi) Ex. PW1/6 (colly) i.e. legal notice dated 18.01.2021 and postal receipt.
9. PW1 was duly cross examined by Ld. Counsel for defendant. During cross-examination, PW1 has stated that she joined the defendant company in March, 2016. It is stated by PW1 that her employment was through interview. It is stated by PW1 that she was a technical writer in the defendant company and used to Digitally signed by KANIKA Page no. 5 of 15 KANIKA AGARWAL AGARWAL Date:
2024.05.28 16:14:32 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 860/21 SANGEETA GHERA Vs. HUMANITICS DIMENSIONS SOFTWARE PVT LTD draft user manual and other technical documents for the software projects. It is stated by PW1 that she was not employed as a software engineer. It is stated by PW1 that she was not part of any corporate level decision making part of the defendant company and also she was not responsible for bringing client for the defendant company. It is stated by PW1 that she was reporting to the manager and director also for certain work related matters only. It is stated by PW1 that she read the offer letter at the time of joining the defendant company carefully. It is stated by PW1 that she had requested defendant company to modify the offer letter and make changes qua the notice period in case of termination of the employment. It is stated by PW1 that said change was made under clause 4 of the appointment letter. Thereafter, she was completely satisfied with the defendant company and was not facing any problem during her employment with the defendant company.
10. It is stated by PW1 that that was the first time she had taken maternity leave in the company. It is stated by PW1 that she was on maternity leave from 01.12.2019 till 31.05.2020. It is denied by PW1 that defendant's company maternity leave policy allowed leaves for 8 calendar weeks only. It is further denied by PW1 that there was no change in the said policy and she had exceeded the permissible weeks / months. It is stated by PW1 that she had received complete salary for the months of December 2019, January 2020, February 2020 and May 2020. It is stated by PW1 that she Digitally signed by KANIKA KANIKA Page no. 6 of 15 AGARWAL AGARWAL Date:
2024.05.28 16:14:38 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 860/21 SANGEETA GHERA Vs. HUMANITICS DIMENSIONS SOFTWARE PVT LTD have received Rs. 76,000/- in the present proceedings against my pending salary. It is stated by PW1 that after she received the experience and relieving letter dated 31.05.2020, she started to apply for fresh jobs. It is stated by PW1 that she has continuously faced mental anxiety due to delay in the full salary. It is stated by PW1 she has not quantified the damages of Rs. 2 lacs so claimed under the suit. It is denied by PW1 that no loss or damage has been caused to her due to the termination of employment by the defendant company. It is denied by PW1 that damages have not been claimed for her personal expenses post termination of her employment by the defendant company. PW1 cross-examination was concluded on 21.09.2023. Thereafter, vide separate statement, plaintiff evidence was closed on 21.09.2023. DEFENDANT EVIDENCE:-
11. No evidence has been led by the defendant. Thereafter, vide separate statement of the Ld. Counsel for defendant, defendant evidence was closed on 29.02.2024 and matter was fixed for final arguments.
FINAL ARGUMENTS:-
12. Final arguments was advanced by the plaintiff were heard on 15.05.2024. The file has been carefully and minutely perused and my issue-wise findings with reasons thereof are as under: -
ISSUE NO. 1 Digitally signed by KANIKA AGARWALKANIKA Page no. 7 of 15 Date:
AGARWAL 2024.05.28 16:14:43 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 860/21 SANGEETA GHERA Vs. HUMANITICS DIMENSIONS SOFTWARE PVT LTD Whether the plaintiff is entitled to any interest on the amount of arrears of salary as claimed by the plaintiff? OPP
13. The burden to prove this issue is upon the plaintiff to establish that she is entitled to interest on the amount of arrears of salary. It is to be noted that plaintiff was appointed as a Technical Writer by the defendant company vide appointment letter dated 09.05.2016 Ex. PW1/1 (OSR). The plaintiff had applied for maternity leave for the period from 01.12.2019 till 01.06.2020 which was intimated by the plaintiff to the defendant company vide e-mail dated 09.10.2019 Ex. PW1/2. It is asserted by the plaintiff that she had received only half of the salary for the month of March and April, 2020 and weren't paid anything at all for the month of June, 2020. It is asserted that the defendant company vide email dated 11.06.2020 Ex. PW1/3 had terminated the employment of the plaintiff with effect from 01.06.2020 on grounds of organizational restructuring without serving any notice period or paying salary against such notice period. Accordingly, the present suit is filed by the plaintiff for recovery of arrears of salary amounting to Rs. 76,000/- for the period of April, May & June 2020 along with interest @ 18% from date of filing of the suit till its realization.
14. Per contra, it is the case of the defendant that they could not pay full salary for the month of March and April, 2020 owing to loss in business stemming from Covid -19 pandemic which resulted in lock down across world. It is asserted that the defendants were Digitally signed by KANIKA AGARWAL KANIKA Page no. 8 of 15 AGARWAL Date:
2024.05.28 16:14:48 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 860/21 SANGEETA GHERA Vs. HUMANITICS DIMENSIONS SOFTWARE PVT LTD within their statutory right to terminate the employment of the plaintiff as per employment contract by offering to pay one months' salary in lieu of the notice period. Further, the defendant admitted their liability to the extent of Rs 76,000/- and offered to pay the same.
15. As far as arrears of Rs. 76,000/- is concerned, the defendant has paid the same to the plaintiff during the pendency of the present suit. Order dated 21.04.2022 passed by Ld. Predecessor of this court shows that payment of Rs. 76,000/- was made to the plaintiff on 08.04.2022.
16. Thus, there is no gain saying the fact that the defendant had failed to remit the full month's salary for the month of March and April 2020, as well as the salary for June, 2020 as assured to the plaintiff vide e-mail dated 11.06.2020 Ex. PW1/3.While there is no documented evidence indicating that the plaintiff is entitled to interest at a rate of 18%, however, it is significant to recognized that the salary of plaintiff was withheld at the time when she was on maternity break which also coincided with the formidable challenges posed by the global COVID-19 pandemic, therefore, the extent of her distress during such challenging times is even beyond imagination. Therefore, court is of the opinion that the interest of justice would be best served if plaintiff is held entitled to interest @ 9% per annum on amount of Rs. 76,000/- from the date of filing of Digitally signed by KANIKA KANIKA AGARWAL Page no. 9 of 15 AGARWAL Date:
2024.05.28 16:14:54 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 860/21 SANGEETA GHERA Vs. HUMANITICS DIMENSIONS SOFTWARE PVT LTD the suit till its actual realization i.e. 08.04.2022. Thus, this issue is partly decided in favour of the plaintiff and against the defendant.ISSUE NO. 2
Whether plaintiff is entitled to any damages for wrongful/ illegal termination by the defendant? OPP
17. The burden of proof with respect to issue no. 2 is upon the plaintiff to establish that she was wrongfully terminated from the services and hence, she is entitled to damages. It is to be noted that as per appointment letter dated 09.05.2016 Ex. PW1/1 (OSR), under the clause concerning the notice period, it is specifically mentioned that period of notice required for resignation during probation is one month on both sides, and following confirmation the notice period extends to two months. It is not disputed that plaintiff was a permanent employee of the defendant company at the time her services were terminated therefore; it was imperative on the part the defendant company to comply with a requirement of two month notice period or provide payment equivalent to the salary for the said notice period. Though, the defendant vide email dated 11.06.2020 Ex. PW1/3 assured to pay for one months salary, however, same was not paid until the suit was filed. Hence, the termination of the plaintiff was wrongful.
18. Now to ascertain whether the plaintiff is entitled for damages, the court deems it fit to refer to judgments of the Hon'ble Digitally signed by KANIKA KANIKA AGARWAL Page no. 10 of 15 AGARWAL Date:
2024.05.28 16:15:00 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 860/21 SANGEETA GHERA Vs. HUMANITICS DIMENSIONS SOFTWARE PVT LTD Supreme Court of India in S. S. Shetty vs Bharat Nidhi Ltd 1958 AIR 12 wherein it has been observed as follows:-
"The position- as it obtains in the ordinary law of master and servant is quite clear. The master who wrongfully dismisses his servant is bound to pay him such damages as will compensate him for the wrong that he has sustained.
They are to be assessed by reference to the amount earned in the service wrongfully terminated and the time likely to elapse before the servant obtains another post for which he is fitted. If the contract expressly provides that it is terminable upon, e.g., a month's notice, the damages will ordinarily be a month's wages. No compensation can be claimed in respect of the injury done to the servant's feelings by the circumstances of his dismissal, nor in respect of extra difficulty of finding work resulting from those circumstances. A servant who has been wrongfully dismissed must use diligence to seek another employment, and the fact that he has been offered a suitable post may be taken into account in assessing the damages."
19. In Shri Satya Narain Garg through his legal heirs Vs. DCM Limited and Ors. in RFA No.556/2002 decided on 05.12.2011, it has been observed as follows:-
"7. Merely because two views are possible, this Court will not interfere with the conclusion arrived at by the Trial Court, Digitally signed by KANIKA KANIKA AGARWAL Page no. 11 of 15 AGARWAL Date:
2024.05.28 16:15:06 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 860/21 SANGEETA GHERA Vs. HUMANITICS DIMENSIONS SOFTWARE PVT LTD unless the conclusion is illegal or perverse or causes grave injustice. In case of private employment, the employers are fully justified in taking steps for termination of services, if it finds that the employee is not upto the mark. Principles applicable in public law domain do not apply with respect to employees in private employment. Employment in private sector is governed by the terms and conditions of employment, and unless the termination is shown to be violation of the terms and conditions of employment, it cannot be said that the termination is illegal. In the present case, in my opinion, since there was no fixed period of employment so far as the deceased plaintiff is concerned, the deceased plaintiff could have been terminated from services even by a simplicitor notice, assuming even if the services of the deceased plaintiff were upto the mark. Further, even if there is illegal termination of services, it is not possible to grant damages as claimed inasmuch as the principle of mitigation of damages squarely applies. As per this principle of mitigation of damages enshrined in Section 73 of the Contract Act, 1872 even if an employee is illegally terminated from services, he cannot sit at home and he must take sufficient steps to procure alternative employment."
20. In Shri Naresh Kumar vs Shri Hiroshi Maniwa & Ors CS(OS) No. 393/2010, the Hon'ble High Court of Delhi while dis-
Digitally signed by KANIKA KANIKA AGARWAL Page no. 12 of 15 AGARWAL Date: 2024.05.28 16:15:12 +0530 (Kanika Agarwal)
CJ-01/(South) Saket Court/New Delhi CS SCJ 860/21 SANGEETA GHERA Vs. HUMANITICS DIMENSIONS SOFTWARE PVT LTD cussing the issue of wrongful termination and principle of mitiga- tion of damages has held as follows:-
"8. (i) A contract of private employment is not similar to the public employment and in such private employment there is no scope of applicability of the principles of administrative law/public law.
(ii) A contract of employment which provides termination of services by one month's notice, then, at best the employee will only be entitled to one month's pay in terms of the employment contract. An employee is not entitled to any relief of continuation in services or pay with consequential benefits for alleged remaining period of services till the date of his superannuation.
(iii) As per the provision of Section 14(1)(c) of the Specific Relief Act, 1963, a contract which is determinable in nature cannot be specifically enforced. Since the service contract in the present case is determinable by one month's notice there does not arise the question of giving of any reliefs which tantamount to enforcement of a determinable contract. As per Section 14(1)
(b), a contract of personal service cannot be enforced when the employer is not the Government or "State" as per Article 12 of the Constitution of India."
21. The position that emerges to be that in case of private employment, the contract of services is determinable as per the terms and condition of the employment. The employer can terminate Digitally signed Page no. 13 of 15 KANIKA by KANIKA AGARWAL AGARWAL Date:
2024.05.28 16:15:17 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 860/21 SANGEETA GHERA Vs. HUMANITICS DIMENSIONS SOFTWARE PVT LTD their services either by giving a notice period or by paying salary in lieu of the notice period. Further, even in cases where the termination is found to be unlawful/ wrongful, the court while granting damages must keep in mind the principle of mitigation of damages enshrined in Section 73 of the Contract Act, 1872, which places an obligation on the aggrieved party to take reasonable measures to minimize the damages resulting from a breach of contract. Further, it has been held in catena of judgments that even if the termination is found to be illegal, the court may at best grant the salary for the unserved notice period.
22. Admittedly, the plaintiff has failed to show what steps she had taken to mitigate the damages, however, keeping in mind that her services were terminated right after her maternity break was over and during the Covid-19 pandemic, therefore, there was practically nothing much that the plaintiff could do to secure another job. Hence, the court is of the view that plaintiff is entitled for damages which is equivalent to two months' salary i.e. for the period June and July, 2020. Since the salary for the month of June, 2020 has been paid during the pendency of the present suit, therefore, the plaintiff is entitled for salary for the month of July, 2020. As far as the salary for July, 2020 is concerned, it is to be seen that plaintiff had placed on record one e-mail dated 31.07.2020 Ex. PW1/4 (colly) wherein the salary for the month of June, 2020 is mentioned as Rs. 42,000/-. Thus, from the said e-mail, it can be inferred that Digitally signed by KANIKA Page no. 14 of 15 KANIKA AGARWAL AGARWAL Date:
2024.05.28 16:15:23 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 860/21 SANGEETA GHERA Vs. HUMANITICS DIMENSIONS SOFTWARE PVT LTD the salary of the plaintiff per month was Rs. 42,000/-. The defendant has not led any evidence to prove it otherwise. Accordingly, the plaintiff is entitled to damages of Rs. 42,000/-. Thus, this issue is partly decided in favour of the plaintiff and against the defendant.ISSUE NO. 3
Relief.
23. In light of the aforesaid discussion, the suit of the plaintiff stands partly decreed to the effect that defendant is liable to pay interest @ 9% per annum on amount of Rs. 76,000/- from the date of filing of the suit till its actual realization i.e. 08.04.2022. Further, the plaintiff is held entitled for damages to the tune of Rs. 42,000/-.
24. Cost of the suit is also awarded in favour of the plain- tiff.
25. Decree Sheet be accordingly prepared.
26. File be consigned to record room thereafter.
Pronounced in open court: KANIKA
Digitally signed
by KANIKA
AGARWAL
Dated: 28.05.2024 AGARWAL Date: 2024.05.28
16:15:29 +0530
(Kanika Agarwal)
CJ-01(South)Saket/New Delhi/28.05.2024 Note :-This judgment contains fifteen pages and all the pages have Digitally signed by been checked and signed by me. KANIKA KANIKA AGARWAL AGARWAL Date: 2024.05.28 16:15:33 +0530 (Kanika Agarwal) CJ-01(South)Saket/New Delhi/28.05.2024 Digitally signed by KANIKA AGARWAL KANIKA Page no. 15 of 15 Date:
AGARWAL 2024.05.28 16:15:40 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi