Delhi District Court
Akshay Kumar vs Indiabulls Housing Finance Ltd on 5 September, 2024
IN THE COURT OF MR. SATYABRATA PANDA, DJ-04,
PATIALA HOUSE COURTS, NEW DELHI
CS No. 281 of 2017
Date of Institution : 07.03.2017
Final arguments heard : 03.07.2024
Date of Judgment : 05.09.2024
Akshay Kumar
S/o Shri Sujan Singh
R/o PP-22, Maurya Enclave,
Pitampura, Delhi-110034 .....Plaintiff
Vs.
M/s Indiabulls Housing Finance Ltd.
(Through its Managing Director/Principal Officer),
Having its Registered office at M-62 & 63 (1st Floor)
Connaught Place, New Delhi-110001
and its Corporate office at Indiabulls House,
448-451, Udyog Vihar, Phase-V, Gurgaon-122016
.....Defendant
JUDGMENT
1. The plaintiff has filed the present suit seeking decree for sum of Rs. 9,17,869/- along with interest.
PLAINT
2. The case of the plaintiff as pleaded in the plaint is as follows:
2.1. The plaintiff was appointed as General Manager (Legal) with the defendant vide letter for offer of appointment dated 08.03.2016 with a gross salary of CS No. 281 of 2017 AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD Page No. 1 of 28 Rs. 2,66,667/- per month.
2.2. The letter of appointment contained a clause under which the plaintiff was required to give three months prior notice in writing in case of resignation.
2.3. The plaintiff was no longer interested in continuing in service with the defendant and tendered his resignation vide email dated 17.10.2016 which was to be effective from 3 months i.e. from 16.01.2017.
2.4. However, the defendant with ulterior motive accepted the resignation of the plaintiff on 17.10.2016 with immediate effect and relieved him of his duties on the same day itself which tantamounted to forcing a date of termination on the plaintiff other than the date of 16.01.2017 which was chosen by the plaintiff.
2.5. The plaintiff had not made any request to reduce the period of notice or to waive the requirement of notice and as such the defendant could not have accepted the resignation on any earlier date than 16.01.2017.
2.6. The conduct of the defendant in accepting the resignation with immediate effect not only deprived the plaintiff with the option to revisit his decision of resignation but also deprived him of the much required period for adjustment. The fact that the CS No. 281 of 2017 AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD Page No. 2 of 28 plaintiff had chosen that his resignation would come into effect on 16.01.2017 was testimony to the fact that he was not ready to go out immediately. The defendant, however, arbitrarily forced a date of termination upon the plaintiff.
2.7. The defendant is under an obligation to pay three months' salary to the plaintiff in lieu of three months' notice.
2.8. The plaintiff issued a legal notice of demand dated 21.12.2016 to the defendant claiming salary for 17 days for the month of October 2016 as well as three months' salary for the notice period and 10 days salary towards encashment of unavailed leaves. The defendant gave reply to the legal notice dated 05.01.2017, however, the same was untenable.
2.9. In paragraph 9 of the plaint, the plaintiff has claimed the following amounts from the defendant:
Sl. Particulars Amount
1. 3 months notice period Rs. 8,00,001/-
salary
2. 10 days' unavailed Rs. 88,889/-
privilege leave salary
3. Damages by way of Rs. 21,479/-
interest @ 18% p.a. w.e.f 17.01.207 to 06.03.2017
4. Legal demand notice fee Rs. 7,500/-
CS No. 281 of 2017AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD Page No. 3 of 28 2.10. On this basis, the plaintiff has filed the present suit seeking recovery of money.
WRITTEN STATEMENT
3. The defendant has filed its written statements seeking dismissal of the suit. The case of the defendant as pleaded in the written statement is summarised as follows:
3.1. The plaintiff had concealed the true and materials facts.
3.2. The defendant was fully entitled to waive off/reduce the notice period under Clause 10(a) of the letter of appointment. Under Clause 10(a), the employee was required to give three months' prior notice in writing. However, the defendant could at its sole discretion waive off/reduce the notice period depending upon the exigency.
3.3. Under Clause 10(b) of the letter of appointment, the defendant also reserved the right to terminate the plaintiff's services in the event of non-performance or misconduct.
3.4. The plaintiff's performance was not satisfactory since his joining on 08.03.2016 as a result of which the immediate superior on regular basis had provided the plaintiff with feedback to improve his below-par performance. However, the plaintiff did CS No. 281 of 2017 AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD Page No. 4 of 28 not improve his performance and on 10.10.2016 the plaintiff's immediate superior was constrained to refer the plaintiff's unsatisfactory performance to the human resources development of the defendant to chalk out the performance improvement plan which the plaintiff agreed to work upon. The plaintiff was granted 30 days' time to work upon the said plan after discussions took place between the plaintiff and the human resources department of the defendant company. The same was communicated to the plaintiff vide email dated 10.10.2016.
3.5. After receipt of the plan for improvement, the plaintiff remained absent for a week and came on 17.10.2016 for tendering his resignation as he was afraid of his termination on the grounds of non-
performance.
3.6. As per Clause 10(a) of the appointment letter, the defendant could at its sole discretion waive off/reduce the notice period depending upon the exigencies. Considering the fact that the performance of the plaintiff was below par, the plaintiff's resignation was accepted on 17.10.2017 and he was relieved on the same day with immediate effect. Further, the defendant wanted to ensure that the plaintiff did not demoralize/demotivate the other employees of the defendant especially those junior to the plaintiff.
CS No. 281 of 2017AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD Page No. 5 of 28 Further, had the plaintiff not resigned himself on 17.10.2016, the defendant would have terminated the plaintiff's employment on his continuous failure to improve his performance.
3.7. As per Clause 10(a), in case the notice period was waived off/reduced by the defendant, it was the plaintiff who was required to pay to the defendant the gross salary for the notice period so reduced or waived off. Hence, the plaintiff could not claim three months' salary for the notice period which was waived.
3.8. On this basis, the defendant has sought dismissal of the suit.
REPLICATION
4. The plaintiff has filed replication reiterating the averments made in the plaint and denying the averments of the defendant made in the written statement. It is stated that the defendant has mala fide raised the issue of alleged non- performance only to deny payment of the plaintiff's legitimate dues. It is stated that the plaintiff's association with the defendant from the period from 08.03.2016 till 17.10.2016 was appreciated by the defendant vide its two letters dated 30.12.2016. It is stated that the plaintiff suffered from hypertension and pyrexia and had been advised rest from 11.10.2016 to 15.10.2016.
CS No. 281 of 2017AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD Page No. 6 of 28 ISSUES
5. Vide order dated 01.08.2017, the following issues were framed in the suit:
1. Whether the plaintiff is entitled for the recovery of Rs. 9,17,869/- as prayed for? OPP
2. Whether the plaintiff is entitled for the pendente lite interest @ 18 % per annum from the date of filing of the suit till its recovery? OPP
3. Whether the suit of the plaintiff is without any cause of action ? OPP
4. Whether the suit of the plaintiff is barred by Order 2 Rule 2 of CPC ? OPD.
5. Relief?
PLAINTIFF'S EVIDENCE
6. In support of his case, the plaintiff has as PW-1 tendered his affidavit in evidence as PW-1/A in which he has deposed along with lines of the plaint. He was cross- examined by the defendant. He has relied upon the following documents:
i. Letter of Offer of Appointment dated 08.03.2016 is Ex. PW-1/1.
ii. The e-mail letter of resignation of the deponent is CS No. 281 of 2017 AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD Page No. 7 of 28 Ex. PW-1/2.
iii. Legal notice of demand upon the defendant on 21.12.2016 is Ex. PW-1/4.
iv. Reply of the defendant dated 05.01.2016 to the legal notice is Ex. PW-1/5.
v. The letter dated 30.12.2016 is Ex. PW-1/6. vi. The relieving letter dated 30.12.2016 is Ex.
PW-1/7.
vii. The statement of Full and Final Breakup is Ex.
PW-1/8.
viii. The e-mail dated 19.10.2016 is Ex. PW-1/3.
DEFENDANT'S EVIDENCE
7. In support of its case, the defendant has examined its authorised representative Mr. Devbrat Mitra as DW-1 and he has tendered his affidavit in evidence as Ex.DW-1/A. The defendant has also examined Mr. Siva Kumar, working in the defendant's human resource department, as DW-2 and he has tendered his affidavit in evidence as Ex.DW-2/A. Both witnesses were cross-examined by the plaintiff. The defendant has relied upon the following documents:
i. Copy of email dated 10.10.2016 is Ex. DW-1/1. ii. Copies of mail of resignation with attendance are Ex. DW-1/2 and Ex. DW-1/3.
iii. Certificate u/s 65B of the Evidence Act, 1872 is Ex. DW-1/4.CS No. 281 of 2017
AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD Page No. 8 of 28 iv. Authority letter dated 24.05.2023 on behalf of the defendant is Ex. DW-2/1.
8. The plaintiff in person as well as Ld. Counsel for the defendant have made their respective submissions.
PLAINTIFF'S SUBMISSIONS
9. The plaintiff in person has referred to the relevant pleadings and evidence and has submitted that the plaintiff would be entitled to decree.
10. The plaintiff has submitted that under Clause 10(a) of the employment agreement, the plaintiff was entitled to give three months' notice which he had given. It is submitted that the plaintiff had never requested for waiver or reduction of the notice period. It is submitted that the defendant could not have under Clause 10 (a) unilaterally waived or reduced the notice period and treated the resignation with effect from 17.10.2016 itself. It is submitted that the interpretation of Clause 10(a) of the employment agreement which was sought to be given by the defendant was completely erroneous.
11. It is submitted that the defendant's action in treating the resignation with effect from 17.10.2016 itself was in effect that the defendant had terminated the plaintiff on 17.10.2016 itself without permitting the plaintiff to complete the service for three months of the notice period and for which the plaintiff would also have been entitled to CS No. 281 of 2017 AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD Page No. 9 of 28 the salary for the period for three months. It is submitted that the defendant is thus liable to pay compensation to the plaintiff for a period of three months by way of salary.
12. It is further submitted that the defendant had raised the issue of alleged non-performance as an afterthought only in order to avoid payment of the legitimate dues to the plaintiff. It is submitted that the defendant had never taken recourse to terminate the plaintiff under Clause 10(b) of the agreement. It is further submitted that in any case the defendant had failed to prove the non-performance. It is further submitted that the experience certificate dated 30.12.2016 Ex.PW-1/6 and relieving letter dated 30.12.2016 Ex.PW-1/7 issued by the defendant clearly stated that the defendant appreciated the services of the plaintiff and that during his tenure the services were found to be satisfactory. It is submitted that in light of these two certificates/letters issued by the defendant, there was no basis for the defendant to claim that there was non- performance on the plaintiff's part.
13. The plaintiff has also relied upon the decision of the Hon'ble Supreme Court in Punjab National Bank Vs. PK Mittal AIR 989 SC 1083 and has submitted that when an employee had given resignation which was to be effective from a future date, then the employee cannot be forced to resign from an earlier date.
14. It is submitted that the defendant could not have CS No. 281 of 2017 AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD Page No. 10 of 28 unilaterally reduced or waived of the notice period. It is submitted that the discretion of the defendant to reduce or waive of the notice period under clause 10(a) of the employment agreement would arise only in case the plaintiff had requested for a waiver. On this basis, it is submitted that the plaintiff is entitled to the three months' salary for the notice period.
15. The plaintiff has further submitted that he would also be entitled for the 10 days unavailed privilege leave salary of Rs. 88,889/-. It is submitted that the plaintiff is entitled to the unavailed privilege leave salary on the basis of the rules of the defendant company and has in this regard referred to Clause 9 of the letter of appointment dated 08.03.2016 entitled as "General Rules".
16. The plaintiff has also submitted that he would be entitled to interest.
DEFENDANT'S SUBMISSIONS
17. On the other hand, Ld. Counsel for the defendant has relied upon the relevant pleadings and evidence in support of the defendant and has submitted the suit is liable to be dismissed.
18. It is submitted that under Clause 10(a) of the agreement, once the plaintiff had tendered his resignation, the defendant could at its own discretion decide to waive of or reduce the notice period depending upon the exigencies. It CS No. 281 of 2017 AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD Page No. 11 of 28 is submitted that in the present case the defendant had rightly exercised its discretion under Clause 10(a) of the agreement and had waived of the notice period.
19. It is submitted that under Clause 10(a), once the defendant had waived of the notice period, rather it was the plaintiff who was required to pay the amount equivalent to the gross salary for the notice period reduced, and the plaintiff could not seek payment of the salary for the reduced period.
20. It is submitted that Mr. Anil Rathor group head HR of the defendant had written e-mail dated 10.10.2016 Ex.DW1/1 to the plaintiff informing about the unsatisfactory performance of the plaintiff. However, thereafter, the plaintiff went on unauthorized leave as evident from the attendance sheet Ex.DW1/2, and on 17.1.2016 the plaintiff gave the resignation letter. It is submitted that on 17.10.2016, the defendant waived of the notice period due to the ground of non-performance of the plaintiff.
21. It is submitted that as per Clause 10(a) of the appointment letter, the defendant could at its sole discretion waive off/reduce the notice period depending upon the exigencies. It is submitted that considering the fact that the performance of the plaintiff was below par, the plaintiff's resignation was accepted on 17.10.2017 and he was relieved on the same day with immediate effect. It is submitted that had the plaintiff not resigned himself on CS No. 281 of 2017 AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD Page No. 12 of 28 17.10.2016, the defendant would have terminated the plaintiff's employment on his continuous failure to improve his performance.
22. It is further submitted that even in his cross examination, the plaintiff had admitted that it was the sole discretion of the defendant to waive of or reduce the notice period.
23. It is further submitted that the medical certificate dated 13.10.2016 which is relied upon by the plaintiff was never communicated to the defendant. It is further submitted that the medical certificate was in respect of one Sh. Akshay Arora whereas the plaintiff's name is Akshay Kumar, which shows that the medical certificate was not respect of the plaintiff.
24. It is further submitted that although in his admission and denial of documents, the plaintiff has stated at paragraph 6 that there was more e-mail chain in respect of the email dated 10.10.2016, however, there was no further e-mail chain which is clear since the plaintiff neither filed any other e-mail chain nor did he apply for any discovery or production of documents.
25. It is further submitted that the e-mail dated 19.1.2016 relied upon by the plaintiff was also inadmissible in evidence as the plaintiff had not satisfied the requirement of the section 65B of Indian Evidence Act. It is submitted that the certificate under section 65 B of the plaintiff does not specify as to from which e-mail ID the e-mail was sent CS No. 281 of 2017 AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD Page No. 13 of 28 or to which e-mail ID it was sent. In this regard, Ld. counsel has relied upon the decision dated 18.09.2014 of the Hon'ble Supreme Court of India in Civil Appeal No. 4226/2012 entitled as Anvar P.V. Vs. P.K. Bashir.
26. It is further submitted that the claim towards encashment of unavailed privilege leave for ten days was wholly baseless and the plaintiff had been unable to show under what provision of the contract this alleged claim was to be paid. It is submitted that although the plaintiff has relied upon Clause 9 of the agreement, however, the plaintiff has been unable to show any rule of the defendant company under which any such alleged payment was to be made.
27. On this basis, it is submitted that suit be dismissed.
28. I have considered the submissions of the Ld. Counsels for the parties and I have perused the record.
ISSUE-WISE FINDINGS
29. My Issue-wise findings are as follows.
Issue No. 4- Whether the suit of the plaintiff is barred by Order 2 Rule 2 of CPC? OPD.
30. The onus to prove this issue was on the defendant. The ld.
Counsel for the defendant has not made any submissions on this issue and as such it is taken that the defendant is not pressing this issue. As such, this issue is dropped as CS No. 281 of 2017 AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD Page No. 14 of 28 not pressed by the defendant.
Issue No. 3- Whether the suit of the plaintiff is without any cause of action? OPD
31. The plaintiff has clearly been able to show cause of action based on the averments made in the plaint. The Issue No.3 is answered accordingly.
Issue No. 1- Whether the plaintiff is entitled for the recovery of Rs. 9,17,869/- as prayed for? OPP Issue No. 2- Whether the plaintiff is entitled for the pendente lite interest @ 18 % per annum from the date of filing of the suit till its recovery? OPP
32. The undisputed position is that the plaintiff was an employee of the defendant who had been employed through the employment agreement which is contained in the letter dated 08.03.2016 Ex.PW-1/1 which is the offer of appointment which was accepted by the defendant. It is also the undisputed position that the plaintiff had tendered her resignation vide his email dated 17.10.2016 Ex.PW-1/2 in which he had given 3 months' notice and mentioned his last date of working as 16.01.2017. It is also the undisputed position that the defendant had treated the resignation with effect from 17.10.2016 itself.
33. As per the case of the plaintiff, since the plaintiff had given 3 months' notice and had mentioned his last date of CS No. 281 of 2017 AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD Page No. 15 of 28 working as 16.01.2017, the defendant could not have reduced or waived of the notice period unilaterally. It is the plaintiff's case that the action of the defendant in treating the resignation to be with effect from 17.10.2016 in effect meant that the defendant had terminated the services of the plaintiff with immediate effect on 17.10.2016. It is on this basis that the plaintiff has claimed salary for the notice period of 3 months.
34. On the other hand, it is the case of the defendant that under clause 10 (a) of the employment agreement, the defendant could at its own discretion waive of or reduce the notice period which it did in the present case and there was no illegality in the same. It is further the defendant's case that the defendant waived of the notice period since the performance of the plaintiff was not satisfactory.
35. Clause 10 of the employment agreement provides for the manner in which the services are to be terminated. Clause 10 of the employment agreement is extracted hereunder:
"10. CESSATION OF SERVICE
a) Before tendering resignation you are required to give 3 Months prior notice in writing to the company. The company in its sole discretion can decide to waive off/reduce the notice period depending upon the exigencies. In such case (Waiver of Notice Period), you shall be required to CS No. 281 of 2017 AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD Page No. 16 of 28 pay to the company the gross salary for the notice period so reduced/waived.
b) The management reserves the right to terminate your services as per the termination policy of the Company in the event of non-performance or misconduct which includes but is not limited to negligence of duty, disloyalty, dishonesty, misrepresentation, indiscipline, performance or any other indulgence of excess or any impropriety in complying with the terms of this letter or any action detrimental to the interests of the Company.
c) You will automatically retire from the services of the company on attaining the superannuating age of 60 years.
d) If you absent yourself without leave or remain absent beyond the period of leave originally granted or subsequently extended, you shall be considered as having voluntarily terminated your employment without giving any notice unless you:
i) Return to work within eight days of the commencement of such absence, and
ii) Give an explanation to the satisfaction of the management regarding such absence.CS No. 281 of 2017
AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD Page No. 17 of 28
e) The management shall have the right to ask you to get yourself medically examined, vaccinated or inoculated by any registered medical practitioner at any time when the management feels it necessary. Your service will be liable to be terminated on being found physically or mentally unfit by a registered medical practitioner, nominated by the company.
f) During the course of your services with IHFL or in the event of cessation of your services in future, due to any reason whatsoever, you shall, for a period of six months from the date of such cessation, directly or indirectly, either on your own accord or on behalf or in conjunction with any other person/s, firm or company refrain/desist from canvassing or soliciting or attempting to or inducing any employee(s) to leave their current employment with the IHFL/Indiabulls Group Companies to join the services of your new employer/firm/company or any other competitor of IHFL/Indiabulls Group Companies. Further, a specific confirmation in this regard will also have to be provided by you to IHFL at the time your resignation/cessation of your employement with IHFL. Any act in contravention of the above provision shall entail initiation of appropriate action as deemed fit by the IHFL/Indiabulls Group Companies."
CS No. 281 of 2017AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD Page No. 18 of 28
36. It is seen that Clause 10(a) is in three parts. Under the first part, the defendant was to give 3 months prior notice in writing for resigning from his services. Under the second part, the plaintiff could at its sole discretion decide to waive of or reduce the notice period depending upon the exigencies. Under the third part, in such case of waiver of the notice period, the plaintiff shall be required to pay to the defendant the gross salary for the notice period so waived or reduced.
37. A holistic reading of the three parts of Clause 10(a) clearly shows that the waiver or reduction of the notice period could have been only upon the request made by the plaintiff to this effect. The reason for this is that the plaintiff was supposed to give the 3 months' notice in writing and in case of waiver or reduction of the notice period, the plaintiff was required to pay to the defendant the salary for the notice period so reduced/waived. Thus, the clear intention of the parties was that in case of waiver or reduction of the notice period, then the plaintiff was to make payment of the gross salary for the notice period. This clearly shows that the intention of the parties was that if for some reason the plaintiff himself wanted waiver of the notice period, then the same could be waived by the defendant, however, subject to the payment of the plaintiff of the gross salary for the notice period waived.
38. The interpretation which is sought to be given by the defendant that even without a request by the plaintiff, the CS No. 281 of 2017 AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD Page No. 19 of 28 defendant could waive off or reduce the notice period would lead to a completely absurd result. This would mean that even when the plaintiff had given 3 months' prior notice in writing, the defendant could waive of/reduce the notice period at its sole discretion, and in such event the plaintiff would have to pay the salary for the notice period so reduced/waived. This is what the argument of the defendant is. However, this interpretation would clearly be illogical since why would the plaintiff in such a situation be required to make payment of salary for the notice period reduced or waived, when the plaintiff himself had given the notice for 3 months period and did not even request for any reduction/waiver, and the reduction/waiver in the notice period was done unilaterally by the defendant.
39. Hence, the only reasonable interpretation of clause 10(a) can be that the discretion to waive off or reduce the notice period could be exercised by the defendant under clause 10(a) only after a request or application to this effect was made by the plaintiff, and not otherwise. In such case, if the defendant agreed to waive of the notice period, then the plaintiff was required to pay the salary for the notice period waived.
40. Hence, it is held that the unilateral waiving of/reduction of the notice period by the defendant was contrary to clause 10(a) of the employment agreement, since there was no request to this effect made by the plaintiff.
CS No. 281 of 2017AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD Page No. 20 of 28
41. Thus, in effect what the defendant did was to terminate the services of the plaintiff with immediate effect on 17.10.2017. Thus, this was not a case of resignation by the plaintiff, but was a case of termination by the defendant with immediate effect on 17.10.2017. It is now to be seen whether could the defendant terminate the services of the plaintiff with immediate effect and without giving any notice.
42. It is seen that the only provision which permits the defendant to terminate the services of the plaintiff was in the event of non-performance or misconduct as mentioned in clause 10(b) of the employment agreement.
43. It is the case of the defendant that the plaintiff's performance was not satisfactory and that the defendant had waived the notice period on account of the non- performance. It is further the case of the defendant that in any event, even if the plaintiff had not resigned, in any case, the defendant would have terminated the services of the plaintiff for non-satisfactory performance under clause 10(b). However, this case of the defendant is completely contrary to the certificate dated 30.12.2016 Ex.PW-1/6 and relieving letter dated 30.12.2016 Ex.PW-1/7, which were issued by the defendant to the plaintiff. The relieving letter dated 30.12.2016 Ex.PW-1/7 by the defendant states that the defendant was accepting the resignation of the plaintiff with effect from 17.10.2016. Importantly, there is nothing stated in the relieving letter regarding the notice period CS No. 281 of 2017 AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD Page No. 21 of 28 being waived due to any non-performance or unsatisfactory performance. Rather, in the certificate dated 30.12.2016 Ex.PW-1/6 which was issued along with the relieving letter, the defendant has certified that the plaintiff worked with the defendant from 08.03.2016 till 17.10.2016 in the designation of General Manager in the legal department and has certified in very clear terms that:
"During his tenure, the services were found to be satisfactory. He has worked with a great sense of ownership and commitment." Thus, the defendant's stand that the defendant had waived the notice period due to unsatisfactory performance cannot be sustained.
44. Furthermore, although it is the defendant's case that there was non-performance on the part of the plaintiff in the employment, no particulars of the non-performance have been stated in the written statement. The allegation of non- performance is very vague and is without any material particulars and details. The defendant has not stated in its written statement as to what was the nature of non- performance on the part of the defendant. When it was the defendant's case that there was non-performance by the plaintiff, then the defendant ought to have clearly averred in the written statement as to what was the nature of the non-performance, so that the plaintiff could have met the case of the defendant. Even the testimony of DW-1 and DW-2 is also vague with regard to the allegation of non- performance. Although both the DW-1 and DW-2 depose in their affidavits in evidence that there was non-CS No. 281 of 2017
AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD Page No. 22 of 28 performance by the plaintiff, however, neither of them give any details about what was the nature of the non- performance. Not only do the DW-1 and DW-2 not depose as to any specific instances of acts or omissions by the plaintiff amounting to non-performance, but even in the cross-examination of the plaintiff, no specific instances of acts or omissions which would amount to non- performance are put to the plaintiff. In essence, what the defendant has done is only to make a bald allegation that there was non-performance by the plaintiff without showing how and in what manner and by what acts or omissions there was non-performance.
45. The allegation of non-peformance has serious consequences for the plaintiff in as much as this permitted the defendant under clause 10(b) of the contract to terminate the services of the plaintiff. The defendant was seeking to justify the waiver of the notice period based on the allegation of non-performance. In such a situation, it was incumbent upon the defendant to clearly aver and prove as to what was the 'non-performance' on the part of the plaintiff. In this regard, the defendant ought to have averred in clear terms the acts and/or omissions of the plaintiff which amounted to non-performance. This would have also enabled the plaintiff to meet the case of the defendant. However, what the defendant has done is only to vaguely aver that there was non-performance without mentioning about the nature of the non-performance and without setting out the instances of acts and/or omissions CS No. 281 of 2017 AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD Page No. 23 of 28 of the plaintiff which amounted to non-performance. Such a vague pleading is no pleading at all in the real sense, since it effectively denies the other party the opportunity to meet the allegation.
46. Hence, in light of the allegation of non-performance being extremely vague in nature and in light of the relieving letter dated 30.12.2016 Ex.PW-1/7 and the certificate dated 30.12.2016 Ex.PW-1/6 wherein it is clearly mentioned that the services of the plaintiff were satisfactory, on a balance of probabilities, I would hold that the defendant has been unable to show that the defendant could have terminated the employment of the plaintiff with immediate effect under Clause 10(b) for non-performance.
47. Now, even assuming that under Clause 10(a) the defendant could unilaterally waive the notice period, however, Clause 10(a) itself provides that the same could to be done 'depending on the exigencies'. The defendant has been unable to show that there were any 'exigencies' for waiving off the notice period. As already discussed, the defendant has been unable to show that there was any non- performance on the part of the plaintiff. Hence, even as such, the unilateral waiver by the defendant of the notice period cannot be sustained in the absence of the defendant being able to show any 'exigencies' which could justify waiver of the notice period.CS No. 281 of 2017
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48. As already mentioned, in the employment contract the only provision which permits the defendant to terminate the employment of the plaintiff is Clause 10(b) which is essentially a clause of termination only upon a cause i.e. of non-performance or misconduct. However, although, there is no express provision in the employment contract under which the defendant could terminate the services of the plaintiff without cause on giving a notice, however, taking into account that this is a case of a private employment, there would be an implied term whereby the defendant could terminate the services of the plaintiff without cause but subject to a prior notice of a reasonable period or salary in lieu thereof. The question is what would be this reasonable period. Since there is a provision for resignation by giving 3 months' prior notice by the plaintiff, it would be safe to hold that such period of 3 months would also be taken as the reasonable period of notice which the plaintiff would be entitled to receive from the defendant in case of termination without cause by the defendant.
49. As already held, the defendant could not have waived off the notice period of resignation given by the plaintiff. Hence, the termination with effect from 17.10.2016 was in effect a case of termination of the services by the defendant and was not a case of resignation by the plaintiff. Also, as already held, the defendant has been unable to justify the termination with effect from 17.10.2016 under Clause 10(b) on the ground of alleged CS No. 281 of 2017 AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD Page No. 25 of 28 non-performance. Hence, the termination with effect from 17.10.2016 by the defendant was essentially a termination without cause. In such case of termination without cause, the plaintiff would have been entitled to prior notice of a reasonable period, which would have been at least 3 months taking into account that the plaintiff was obligated to give notice of a similar period in case of resignation, or salary in lieu thereof. Since, no prior notice of 3 months was given by the defendant, the plaintiff would be entitled to salary of 3 months in lieu thereof.
50. Hence, the plaintiff would be entitled to notice period salary of 3 months, i.e. Rs. 8,00,001/-. As such, the plaintiff would be entitled to decree for amount of Rs. 8,00,001/-. It would be appropriate to grant the plaintiff interest on this amount @ 9% p.a. from the date of the legal notice i.e. 21.12.2016 till date of actual payment.
51. In so far as the claim of the plaintiff towards the encashment of leave of 10 days is concerned, the burden to prove this was upon the plaintiff. The plaintiff has not been able to show how the plaintiff was entitled to this amount. The plaintiff has relied upon Clause 9 of the employment contract and the same is extracted hereunder:
"9. General Rules In all matters including those not specifically covered by this letter, such as PF, Bonus, Incentives, Medical and LTA will be governed as per the rules CS No. 281 of 2017 AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD Page No. 26 of 28 of the Company
a) You will intimate in writing to the Management any change of address within a week from the change of the same, failing that any communication sent on your last recorded address shall be deemed to have served on you.
b) You will hand over the charge, the property and the material etc. of the company in your possession at the time of cessation of your employment with the company.
c) You will be liable to pay damage(s) to the company for the loss caused by you directly or indirectly, in addition to other legal remedies, which may be required for violating any of the provisions of this letter for offer of appointment/agreement etc. and the Courts at New Delhi will have exclusive jurisdiction over the appointment consequent to this letter and all matters arising there from."
52. It is the case of the plaintiff that in terms of Clause 9 of the employment agreement, the plaintiff was governed by the rules of the defendant company for payment of incentives etc. However, the plaintiff has not been able to show under what rules of the defendant, he was entitled to encashment of the unavailed leaves. The onus to show this was upon the plaintiff and the plaintiff has been unable to discharge CS No. 281 of 2017 AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD Page No. 27 of 28 this onus.
53. Accordingly, the claim of Rs. 88,889/- towards unavailed leaves is rejected.
54. The Issues No. 1 and 2 are answered accordingly.
DECISION
55. In the result, decree is passed in favour of the plaintiff and against the defendant for sum of Rs. 8,00,001/- along with interest @ 9% p.a. from 21.12.2016 till actual realization.
56. Costs are decreed in favour of the plaintiff and against the defendant. The costs shall also include litigation costs of Rs. 30,000/-.
57. Let the decree-sheet be drawn up accordingly.
58. File be consigned to record room after due compliance.
Digitally
signed by
Satyabrata
Satyabrata Panda
Panda Date:
2024.09.05
17:29:06
+0530
(SATYABRATA PANDA)
District Judge-04
Judge Code- DL01057
PHC/New Delhi/05.09.2024
CS No. 281 of 2017
AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD Page No. 28 of 28