Bangalore District Court
Sri.K.Chandrashekar vs The Managing Director on 20 July, 2018
IN THE COURT OF THE XXXI ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-14)
PRESENT:
Shri.G.V.Turmari, B.com., LL.B.(Spl.)
XXXI Addl. City Civil & Sessions Judge,
Bengaluru City.
DATED THIS THE 20th DAY OF JULY 2018
O.S.NO.8193 / 2009
PLAINTIFF: Sri.K.Chandrashekar,
S/o. Sri.B.N.Krishnamurthy,
Aged about 54 years,
R/at Flat No.7, Panorama Point,
No.85, 5th Cross, SBM Colony,
Banashankari I Stage,
Bengaluru-560 050.
(Sri.R.Gopalakrishna, Adv.)
- Vs -
DEFENDANT: 1. The Managing Director,
M/s.United Breweries (Holdings) Ltd.,
UB City, No.24, Vittal Mallya Road,
Bengaluru-560 001.
Rep. by Sri.R.N.Pillai.
2. Sri. V.Shashikanth,
Executive Vice President (Overseas
Business Division),
M/s.United Breweries (Holdings) Ltd.,
UB City, No.24, Vittal Mallya Road,
Bengaluru-560 001.
(Sri.C.K.Nandakumar, Adv.)
***
2 O.S.No.8193/2009
Date of Institution : 21.12.2009.
Nature of suit : Money suit.
Date of recording evidence : 27.01.2016.
Date of Judgment : 20.07.2018.
Duration : Days Months Years
29 06 08
***
JUDGMENT
The plaintiff has filed this suit against the defendants seeking for recovery of a sum of Rs.2,20,294/- being PEP amount due for the financial year 2007-08 based on total salary drawn during 2007-08 of Rs.7,28,250/- @ 25% i.e., Rs.1,82,062-00 and interest @ 18% p.a. from 01.10.2008 to 30.11.2009 i.e., Rs.38,232/- and to grant such other relief as the Court deems fit.
2. The facts of the case are as follows:
2a) The plaintiff was working in the UB Group for the past 27 years in various divisions and its companies. He joined McDowell and Company Ltd. on 06.05.1981 as Secretary-cum-
Superintendent in the Central Personnel Division at Bengaluru. At that time, his qualification was Bachelor of Commerce and 3 O.S.No.8193/2009 Bachelor of Law. In 1983, the UB Group introduced a new executive remuneration package and the plaintiff was put into Grade-V of this package effective from 01.01.1983. In August 1983, he was transferred to McDowell and Co. Ltd., Madras, since the Central Personnel Division was relocated to Madras. As per the said package, salaries were revised and other entitlements were also introduced. A Performance Evaluation Payment (PEP) was also introduced and according to this scheme, upto 20% of the basic salary was given to the executives annually for exceptional performance. This payment was made subject to deduction of any statutory bonus paid by the company. The company was paying an annual bonus of 20% under the Payment of Bonus Act, 1965.
2b) In January 1985, the plaintiff was transferred to Bengaluru to report to Group Vice President (R & D). The Group was planning to set up an independent research institute in Bengaluru and the plaintiff was asked to handle administrative functions. In February 1987, an independent research institute was established in the name and style of Vittal Mallya Scientific Research Foundation (VMSRF), which was registered under the 4 O.S.No.8193/2009 Karnataka Societies Registration Act, 1960. The plaintiff was appointed as Hon. Secretary in the first Governing Body meeting held immediately after the registration. From 01.04.1988, the plaintiff was transferred to United Breweries Ltd., Corporate Management Division with no change in terms and conditions and reporting relationship. From 01.04.1992, the plaintiff was promoted to Grade-IV as Administration Executive (R & D) and with effect from 01.12.1992 the plaintiff was transferred to McDowell and Co. Ltd., Bengaluru. In 1992, the plaintiff completed Company Secretaries Course and became a qualified Company Secretary (A.C.S.). In view of this, the plaintiff was given the additional responsibility to handle Mallya Hospital's (Bengaluru Hospital Ltd.) secretarial functions in addition to his responsibilities in VMSRF. The plaintiff completed equity share issue to NRI promoter doctors under repatriation scheme and other Indian promoters after obtaining all regulatory approvals, which were pending for a long time. In addition, the plaintiff also initiated steps to take possession of three acres of land from Bengaluru Development Authority allotted to Mallaya Hospital to build hospital in Rajmahal Vilas Extension.
5 O.S.No.8193/2009
2c) In October 1994, the plaintiff was promoted as Manager (Administration). Among other entitlements, PEP was fixed at 20% of the salary. During the period 1994-96 the plaintiff vigorously pursued the land allotment to Mallaya Hospital with BDA and after persistent follow-up, the BDA gave possession of 2.6 acres (approx.) land to Mallaya Hospital. The plaintiff also initiated legal cases against encroachers in the remaining portion of the land. In 1995, Mallya Hospital got merged with McDowell & Co. Ltd. In June 1995 the plaintiff was appointed Company Secretary of UB Global Corporation Ltd., (a wholly owned subsidiary of UBL) for mandatory requirements. This was in addition to his responsibilities in VMSRF. In UB Global, the plaintiff was responsible for setting up Secretarial and Legal Department. In the process, the plaintiff put together export documentation manual for financing external vendors to procure goods for export purposes. He also initiated recovery suits against defaulters. The cases were vigorously pursued during subsequent years and achieved good results in terms of recovery of money. With effect from 01.07.2000, the plaintiff was promoted as Company Secretary and Controller (Administration). 6 O.S.No.8193/2009 In 2002, the plaintiff became a Fellow Member of the Institute of Company Secretaries of India. Effective from 01.04.2004, the plaintiff was transferred to UB Global Corporation Ltd. by McDowell and Co. Ltd., on the same terms and conditions. Effective from 01.07.2004, the plaintiff was promoted as Company Secretary and General manager (Administration). In addition to the plaintiff's responsibilities in VMSRF and Secretarial and Legal functions in UB Global, the plaintiff was also asked to handle HR and Administration functions of UB Global and UB International Trading Ltd., (a wholly owned subsidiary of UBL). In December 2005, UB Global merged with the holding company, UBL. Effective from 01.10.2005, the plaintiff was re-designated as Senior General Manager and Company Secretary (Administration).
2d) In UBITL, the plaintiff streamlined several areas of HR and administrative functions and took several measures to plug revenue leakage, cut costs and implemented systems. Besides, suggested changes in business models and outsourced major operations and thus, saved costs and eliminated contract labour. Thus, the plaintiff proved his competence, initiative and 7 O.S.No.8193/2009 integrity, which were of high order. In 1997, a new performance evaluation system was introduced called Objective Performance Evaluation, which became the basis for annual increment, PEP and promotions. As per this system, the objectives/key responsibility areas are agreed in the beginning of the year i.e., in April and the same will be reviewed during mid-year and at the end of the year to determine the performance rating. This exercise is carried out between the appraiser/reviewer and the employee and the final appraisal from duly completed with the appraiser/reviewer comments/recommendations and employee's comments thereon, signed by both was shared with the employee. This exercise will have to be completed by the end of June every year and increments and PEP will be announced during July-August. The increment will be effective from 1st July and PEP will be paid along with September/October salary. The plaintiff has received PEP from 1983 till 2007 as per details given below and PEP was paid after deducting the statutory bonus, if any. The details are as under:
Year PEP (%) Year PEP (%)
1984-85 20 1997-98 18
1985-86 20 1998-99 20
8 O.S.No.8193/2009
1986-87 18 1999-2000 29
1987-88 19 2000-01 24
1988-89 20 2001-02 24
1989-90 20 2002-03 24
1990-91 20 2003-04 20
1991-92 20 2004-05 20
1992-93 30 2005-06 20
1993-94 25 2006-07 20
1994-95 20
1995-96 25
1996-97 25
2e) During the year 2003-04 additional increment was
given for consistent outstanding performance during the previous three years. The plaintiff resigned the defendant company on 11.02.2008 and was relieved on 11.05.2008. All his dues were settled except the PEP for the financial year 2007-08. In this regard, the plaintiff and UB Group exchanged following emails.
a) First email was sent to Mr.V.Shashikanth by the plaintiff on 20.09.2008 and Mr.Shashikanth replied suggesting the plaintiff to meet after plaintiff return from US.
b) The plaintiff called Mr.Shashikanth on mobile on 30.10.2008, for which, Mr. Shashikanth did not respond.
c) The plaintiff sent an email to Mr.Shashikanth on 07.11.2008 and again there was no response. This was again repeated on 11.12.2008, 03.03.2009 and 13.03.2009 and there was no reply from Mr.Shashikanth for any of the above emails.
9 O.S.No.8193/2009
d) Again the plaintiff called Mr.Shashikanth's office over telephone and the plaintiff was asked to meet same day i.e., on 13.04.2009. At this meeting, Mr.Shashikanth mentioned that PEP will be decided by Mr.S.R.Gupte, Executive, Vice Chairman and that, he has already sent plaintiff's paper to Mr.Gupte. Mr.Shashikanth further stated that, he will meet Mr.Gupte around 25.04.2009 and he will let the plaintiff know the decision.
e) Since there was no response from Mr.Shashikanth, the plaintiff sent an email to Mr.S.R.Gupte on 18.05.2009, for which Mr.Gupte replied informing that, he has not received the papers from Mr.Shashikanth.
f) Plaintiff sent an e-mail to Mr.Shashikanth on 20.05.2009 requesting him to send the papers to Mr.Gupte, for which, there was no response from Mr.Shashikanth.
g) The plaintiff tries to call Mr.Shashikanth on his mobile on 26.05.2009 and again there was no response.
Hence, plaintiff sent another email to Mr.Shashikanth on 27.05.2009 and copied to Mr.Gupte, Mr.Sudhir Goyal, Dy. President (HR) and Mr.A.K.Ravi Nedungadi, President & CFO, Group Finance. There was no response from anyone.
h) As there was no response from anyone, the plaintiff sent an email to Dr.Vijay Mallya, Chairman, on 29.06.2009 and copied to Mr.Gupte, Mr.Goyal and Mr.Ravi Nedungadi and again, there was no response from anyone.
i) The plaintiff sent a legal notice from Mr.B.N.Gururaj, Advocate on 15.07.2009 to the Managing Director, United Breweries (Holdings) Ltd., and again there was no response.
10 O.S.No.8193/2009
j) Meanwhile, the plaintiff received an email from Mr.Gupte on 23.07.2009 informing him that, he has asked the concerned people to take necessary action.
k) On 18.08.2009 the plaintiff received an email from Mr.Sudhir Goyal, Deputy President (HR) requesting him for time till middle of September 2009, which plaintiff replied the same. There is no response from Mr.Goyal thereafter.
As there was no response, finding no other alternative, the plaintiff has filed the present suit for recovery of the dues. The details are as under:
1. PEP amount due for 2007-08 Rs.1,82,062-00 based on total salary drawn during 2007-08 Rs.7,28,250/ @ 25%
2. Interest @ 18% from Rs.38,232-00 01.10.2008 to 30.11.2009 Total Rs.2,20294-00 Hence, the plaintiff has prayed to decree the suit.
3. After service of summons, the defendants appeared through their counsel and the defendant No.1 has filed his written statement. The defendant No.2 filed a memo adopting the written statement filed by the defendant No.1. The contents of the written statement in brief are as follows: 11 O.S.No.8193/2009
3a) The contents of the plaint are totally denied by the defendants. The plaintiff has no legal right to claim the PEP amount. There is no cause of action to file the suit. The suit is also bad for mis-joinder since the 2nd defendant is not a necessary party to the suit. The 2nd defendant is only an employee of the 1st defendant. There is no privity of contract with the 2nd defendant. Hence, the suit against the defendant No.2 is liable to be rejected. The suit is also bad for mis-joinder since the suit has been filed against the Managing Director and not against the company. The suit is also bad for non-joinder of necessary parties since the plaintiff admits having worked with various other companies, which are also necessary parties. The plaintiff is guilty of suppressions of various material facts from this Court.
Hence, the suit is liable to be dismissed. The PEP is not an entitlement, but a sole discretion of the Management. During the financial year 2007-08, the plaintiff's performance was not satisfactory. Hence, no discretionary payments were made under the PEP. All legally entitled dues and payments of the plaintiff have already cleared by the company and the plaintiff has acknowledged the same. There is no communication whatsoever 12 O.S.No.8193/2009 that PEP is a fixed allowance or part of salary. The plaintiff did not even submit a completed OPE form for the year 2007-08 and hence, is not even eligible to claim PEP.
3b) The averments of the plaint that, the plaintiff worked for 27 years in the UB group in various divisions and companies is misleading. The averments that, he worked in McDowell & Co. Ltd., as a Secretary-cum-Superintendent is a matter of record. The averment that, he was a Bachelor of Commerce and Bachelor of Law is false. After joining the company, the plaintiff has completed his LL.B. The averment that, in 1983, the UB Group introduced a new executive remuneration package and the plaintiff was put into Grade-5 with effect from 01.01.1983 is misleading. The averment that, he was transferred to McDowel & Co. Ltd., Madras in August 1983 is a matter of record. The averment that, the salaries were revised and other entitlements were also introduced is also misleading. The averment that, PEP was introduced and according to the said scheme, upto 20% of the basic salary was given to executives annually for exceptional performance is misleading and false. The Performance Evaluation Payment (PEP) scheme is neither a right nor part of salary, which 13 O.S.No.8193/2009 the employee earns by virtue of the conditions of service. The averment that, the said payment was made subject to deduction of any statutory bonus paid by the company is false. The company was paying an annual bonus of 20% under the Payment of Bonus Act, 1965.
3c) The averment that, the plaintiff was transferred to Bengaluru to report to Group Vice President (R & D) is misleading. The averment that, the Groups was planning to set-up an independent research institute in Bengaluru and he was asked to handle administrative functions is misleading. The averment that, in February 1987, an independent research institute was established in the name and style of Vittal Mallya Scientific Research Foundation (VMSRF), which was registered under the Karnataka Societies Registration Act, 1960 is true, but irrelevant. The averment that, the plaintiff was appointed as Hon. Secretary in the first Governing Body Meeting held immediately after the registration is misleading and not relevant. The averment that, the plaintiff was transferred to UB Ltd., Corporate Management Division is misleading. The averment that, from 01.04.1992 the plaintiff was promoted to Grade-IV as Administration Executive (R 14 O.S.No.8193/2009 & D) and from 01.12.1992 the plaintiff was transferred to McDowell and Co. Ltd., is a matter of record, but not relevant. The averment that, in 1992, the plaintiff completed Company Secretaries course and became a qualified Company Secretary (ACS) is a matter of record. The averment that, in view of this plaintiff was given the additional responsibility to handle Mallya Hospital's (Bengaluru Hospital Ltd.) secretarial functions in addition to his responsibilities in VMSRF is a matter of record. The averment that, the plaintiff completed equity share issue to NRI promoter doctors under repatriation scheme and other Indian promoters after obtaining all regulatory approvals which were pending for a long time is misleading. The averment that, the plaintiff initiated steps to take possession of 3 acres of land from BDA allotted for hospital purpose is not relevant to the suit. The routine functions and roles and responsibilities offered by the plaintiff are not relevant. The averment that, the plaintiff was promoted as Manager (Administration) and that among other entitlements, PEP was fixed at 30% of the salary is misleading.
3d) The averment that, the plaintiff followed-up and secured 2.6 acres of land to Mallya Hospital from BDA and 15 O.S.No.8193/2009 initiated legal cases against encroachers is misleading and not relevant. The averment that, in 1995, Mallya Hospital got merged with McDowell and Co. Ltd., is a matter of record. The averment that, in June 1995, the plaintiff was appointed as Company Secretary of UB Global Corporation Limited for mandatory requirements is meaningless and not relevant. The averment that, this was in addition to his responsibilities in VMSRF is false and meaningless. The averment that, UB Global, the plaintiff was responsible for setting-up of Secretarial and Legal Department is false. The averment that, in the process, the plaintiff put together export documentation manual for financing external vendors to procure goods for export purposes is false. The averment that, he also initiated recovery suits against defaulters is a routine function of the plaintiff in the company, hence not relevant. The averment that, cases were vigorously pursued during subsequent years and achieved good results in terms of recovery of money is false. The averment in para 14 to 17 of the plaint are not relevant to the suit. The averment that, from 01.07.2004, the plaintiff was promoted as company secretary and General Manager (Administrative) is a matter of record and not 16 O.S.No.8193/2009 relevant. The averment that, in addition to the plaintiff's responsibility in VMSRF and Secretarial and Legal Functions in UB Global, the plaintiff was asked to handle HR and Administration functions of UB Global and UB International Trading Ltd. is misleading and not relevant. The averment that, in December 2005, UB Global merged with the holding company UB with effect from 01.10.2005, the plaintiff was re-designated as Senior General Manager and Company Secretary (Administration) is a matter of record and irrelevant. The averment that, in UBITL, the plaintiff streamlined several areas of HR and administrative functions and took several measures to plug revenue leakage, cut costs and implemented systems is false. The averment that, besides, suggested changes in business models and outsourced major operations and thus saved costs and eliminated contract labour and that thus plaintiff proves his competence, initiative and integrity, which were of high order is false.
3e) The averment that, in 1997, a new performance evaluation system was introduced called Objective Performance Evaluation, which became the basis for annual increment, PEP and promotions is misleading. The averment that, as per this 17 O.S.No.8193/2009 system, the objectives / key responsibility areas are agreed in the beginning of the year i.e., in April and the same will be reviewed during mid-year and at the end of the year to determine the performance rating is true. The averment that, this exercise was carried out between the appraiser / reviewer and the employee and the final appraisal form duly completed with the appraiser / reviewer comments / recommendations and employer's comments thereon, signed by both, was shared with the employee is true. The averment that, the increment will be effective from July 1 and PEP will be paid along with September / October salary, is true. A bare perusal of contents of para 21 clarifies that, PEP is not a part of salary and based on the sole discretion of the management of the company depends on the performance of an employee. The averments that, the plaintiff received PEP from 1983 till 2007 and PEP was paid after deducting the statutory bonus is misleading since the schedule of PEP mentioned by the plaintiff in para 22 itself shows that, PEP is given at the discretion of the management of the company and it was not a fixed allowance for the plaintiff. Further, PEP was given considering the performance of the plaintiff from time to time. The averment that, during the 18 O.S.No.8193/2009 year 2003-04, an additional increment was given for consistent outstanding performance during the previous three years is misleading and not relevant.
3f) The averment that, all dues of the plaintiff were settled except the PEP for the financial year 2007-08 is misleading. The averment that, the plaintiff and UB group exchanged emails is denied. The company was not satisfied with the performance of the plaintiff during the financial year 2007-08. During the said period, the plaintiff without any reason refused to attend few functions assigned to him by the company. Further, during this period, the plaintiff started avoiding and refusing to attend his regular functions in the company. Hence, there is no question of granting PEP during this period when the company is not satisfied with the performance of the plaintiff. During the course of employment, the defendant never assured the plaintiff that, he is entitled for PEP and that PEP is a part of his salary. PEP is an additional benefit at the discretion of the management. This fact was informed to the plaintiff. There is no cause of action to file the suit. The suit has not been properly valued and 19 O.S.No.8193/2009 proper Court fee is not paid. Therefore, the defendants have prayed for dismissal of the suit.
4. On the basis of the above pleadings, my learned Predecessor has framed the following issues:
1. Whether the plaintiff proves that the defendants have not paid the PEP amount as alleged in the plaint ?
2. Whether there is cause of action to file the suit ?
3. Whether the Court fee paid by the plaintiff is proper ?
4. Whether the plaintiff proves that the defendants are due of Rs.2,20,294/- as on the date of the suit ?
5. Whether the plaintiff is entitled for the decree as prayed for ?
6. What order or decree ?
5. In support of the plaintiff's case, he himself got examined as PW.1 and got marked 43 documents as Ex.P.1 to Ex.P.43. The counsel for the defendant has not chosen to cross-examine PW.1. There is no oral and documentary evidence on behalf of the defendants.
20 O.S.No.8193/2009
6. The counsel for the plaintiff submitted written arguments and also heard orally.
7. My findings on the above issues are as under:
Issue No.1, 2, 4 & 5 : Affirmative,
Issue No.3 : Affirmative,
Issue No.6 : As per the final order,
for the following:
REASONS
8. ISSUE NOS.1, 2, 4 & 5: These issues are interrelated
with each other, hence they are taken together for discussion to avoid repetition of facts.
9. It is admitted that, the plaintiff joined the defendant's company on 06.05.1981 and retired from his service by resigning on 11.05.2008. The plaintiff's averred that, the defendant company introduced performance evaluation payment (PEP) scheme and according to this scheme, upto 20% of the basic salary was given to the executives annually for exceptional performance. This payment was made subject to deduction of any statutory bonus paid by the company. The company was 21 O.S.No.8193/2009 paying an annual bonus of 20% under the Payment of Bonus Act, 1965. He has further pleaded that, he was paid PEP from 1984- 85 to 2006-07 at various percentages ranging from 18% to 30% on basic pay. The plaintiff's grievance is that, on his retirement on 11.05.2008 he was paid all his dues except PEP for the financial year 2007-08. In this regard, there were exchange of emails between the plaintiff and the defendant company, but the company did not pay said PEP. Hence, he has filed this suit claiming PEP @ 25% on annual basic of Rs.7,28,250/- for the year 2007-08 amounting to Rs.1,82,062-00 and interest thereon @ 18% p.a. amounting to Rs.38,232-00, totally Rs.2,20,294-00 from the defendant company.
10. The defendants averred that, the Performance Evaluation Payment (PEP) scheme is neither a right nor part of salary, which the employee earns by virtue of the conditions of service. PEP is not a part of basic salary. The employee is not entitled for such performance incentive automatically unless he satisfies the conditions. Further contends that, the company was not satisfied with the performance of the plaintiff for the financial year 2007-
08. During this period, the plaintiff without any reason, refused 22 O.S.No.8193/2009 to attend few functions as assigned to the plaintiff by the company. Further during this period, the plaintiff started avoiding and refusing to attend regular functions in the company. Hence, there is no question of granting PEP during this period when the company is not satisfied with the performance of the plaintiff. They further contend that, the plaintiff was never assured that, PEP was part of his salary, on the other hand, the plaintiff was informed that PEP is an additional benefit at the discretion of the management and not an entitlement. Thus, though the defendants do not dispute the introduction of PEP scheme, but they contend that, it is not the right of the employees it is the discretion of the management.
11. The plaintiff to prove that he is entitled for PEP for the financial year 2007-08, he got examined himself as PW.1. He deposed in accordance with the contents of his plaint. He got marked documents at Ex.P.1 to Ex.P.43. PW.1 is not cross- examined by the counsel for the defendants. Further that, the defendants have not led any evidence in support of their case. Thus, the oral and documentary evidence adduced by PW.1 remain unchallenged.
23 O.S.No.8193/2009
12. Ex.P.2 is the letter written by the Director (Personnel) of McDowell & Co. Ltd., Madras. In the said letter at Sl.No.7, it is stated that, the plaintiff is entitled to Performance Evaluation Payment at the end of the year on the basis of the efficiency shown in his job and this payment is subject to maximum of 20% of his basic salary, which is awarded only to those who have shown exceptional abilities. Ex.P.4 is the letter written by the Director (Personnel) of McDowell & Co. Ltd., Madras stating that, as long as the plaintiff is covered under the Bonus Act, he would not be entitled to any PEP. Ex.P.6, Ex.P.8 to Ex.P.12, Ex.P.14 to P.17, Ex.P.19 to P.24, Ex.P.28, Ex.P.30 to P.32 are the letters by the defendant company to the plaintiff sanctioning PEP at 18%, 19%, 20%, 20%, 20%, 20%, 30%, 25%, 25%, 25%, 18%, 20%, 29%, 24%, 24%, 24%, 20%, 20%, 20%, 20% of his basic salary as PEP for the financial years from 1986-87 to 1993-94 and 1995- 96 to 2006-07 respectively.
13. Ex.P.33 is the letter dated 28.02.2008 by the defendant company to the plaintiff accepting his resignation informing that, he will be relieved from the Company's employment effective the 24 O.S.No.8193/2009 close of working hours on 11.05.2008. Ex.P.35, Ex.P.36, Ex.P.38, Ex.P.39 are the emails dated 20.09.2008, 07.11.2008, 03.03.2009, 18.05.2009 respectively sent by the plaintiff to the defendant company requesting for sanction of his PEP for the year 2007-08. Ex.P.40 is the email sent by Sri.Subhash R. Gupte of the defendant company to the plaintiff stating that they are awaiting for papers. Ex.P.41 is the reminder email dated 27.05.2009 by the plaintiff to the defendant company. Ex.P.42 is the email sent by Sri.Subhash R. Gupte of the defendant company to the plaintiff stating that, he has asked the concerned people to take necessary action. Ex.P.43 is the email dated 18.08.2009 sent by Sri.Sudhir Goyal of the defendant company to the plaintiff asking him to wait for the final decision. Thus, all these documents show that, the plaintiff had received PEP during his service except 2007-08. The plaintiff resigned from the service of the defendant company in the year 2008. Thereafter, he made several requests to the defendant company through telephonically and emails for sanction of PEP due. The reply sent by the defendants show that, they are awaiting for the papers, they have asked the concerned people to take necessary action, but they 25 O.S.No.8193/2009 have not contended in their emails/letters that, the performance of the plaintiff during the financial year 2007-08 was not satisfactory. There is no evidence from the defendants to prove their contention that, the performance of the plaintiff was not satisfactory, he was refusing to attend few functions assigned to him by the company and he started avoiding and refusing to attend the regular functions. Thus, the defendants have failed to prove the defence taken by them in their written statement.
14. It is to be noted that, when the company has introduced PEP scheme, it ought to sanction PEP to the executives or they have to give reason for not sanctioning the same. In the present case, from the documents produced by the plaintiff, it appears that, he has received PEP during his employment most of the years from the date of introduction of the scheme till the year 2006-07 except 2007-08. Since the defendants have failed to prove that, the plaintiff's performance during the financial year 2007-08 was not satisfactory, they are bound to sanction PEP to the plaintiff. Hence, I answer issue Nos.1, 2 , 4 and 5 in the "affirmative".
26 O.S.No.8193/2009
15. ISSUE NOS.3: The plaintiff has filed the present suit seeking to recover Rs.2,20,294/- towards PEP from the defendant's company, he has paid the Court fee of Rs.15,050/-, which is found to be correct in accordance with the schedule to the Karnataka Court Fees and Valuation Act, 1958. Hence, I answer issue No.3 in the "affirmative".
16. ISSUE NO.6: For the above reasons, I pass the following:
ORDER The suit of the plaintiff is decreed with cost.
The plaintiff is entitled to recover
Rs.2,20,294/- towards PEP with future
interest @ 18% from the date of the suit till the date of realization from the defendants. Draw the decree accordingly.
*** (Dictated to the stenographer, transcribed and typed by her, corrected, signed and then pronounced by me in the open Court on this the 20th Day of July 2018) (G.V.TURMARI) 31st Addl. City Civil and Sessions Judge, Bengaluru.27 O.S.No.8193/2009
ANNEXURE List of witnesses examined and documents exhibited for plaintiff:
PW.1 : Sri.K.Chandrashekar.
Ex.P.1 : Appointment order.
Ex.P.2 : Revised remuneration letter.
Ex.P.3 : Transfer letter.
Ex.P.4 : Performance revaluation payment letter
dt.08.07.1983.
Ex.P.5 : Transfer letter dtd.18.01.1985.
Ex.P.5(a) : Transfer entitlement letter.
Ex.P.6 : Performance Evaluation payment letter
dt.9.10.1987.
Ex.P.7 : Transfer letter dtd.23.03.1988.
Ex.P.8 : Performance evaluation payment letter
dt.5.10.1988.
Ex.P.9 : Performance evaluation payment letter.
Ex.P.10 : Performance evaluation payment letter
dt.3.8.1990.
Ex.P.11 : Performance evaluation payment letter
dtd.02.07.1991.
Ex.P.12 : Performance evaluation payment letter
dtd.2.9.1992.
Ex.P.13 : Transfer letter.
Ex.P.14 : Performance evaluation payment letter
dtd.12.10.1993.
Ex.P.15 : Performance evaluation payment letter
dtd.19.09.1994.
Ex.P.16 : Revised remuneration letter
dt.22.08.1996.
Ex.P.17 : Increment and performance evaluation
payment letter dtd.14.5.1997.
Ex.P.18 : Restructuring management and salary
letter dtd.24.11.1997.
Ex.P.18(a) : Annexure.
Ex.P.19 : Performance evaluation payment letter
dtd.08.10.1998.
Ex.P.20 : Increment and performance evaluation
payment letter dt.20.09.1999.
28 O.S.No.8193/2009
Ex.P.21 : Increment and Performance evaluation
payment letter dtd.13.09.2000.
Ex.P.22 : Increment and Performance evaluation
payment letter dtd.26.07.2001.
Ex.P.23 : Increment and Performance evaluation
payment letter dtd.03.09.2002.
Ex.P.24 : Increment and Performance evaluation
payment letter dtd.18.09.2003.
Ex.P.25 : Increment letter dtd.22.10.2003.
Ex.P.26 : Transfer letter dtd.25.2.2004.
Ex.P.27 : Transfer letter dtd.09.03.2004.
Ex.P.28 : Promotion, increment and performance
evaluation payment letter
dtd.26.10.2004.
Ex.P.29 : Change of designation letter
dtd.16.10.2006.
Ex.P.30 : Increment and performance evaluation
payment letter dtd.16.09.2005.
Ex.P.31 : Increment and performance evaluation
payment letter dtd.22.9.2006.
Ex.P.32 : Increment and performance evaluation
payment letter dtd.21.09.2007.
Ex.P.33 : Resignation acceptance letter
dtd.28.02.2008.
Ex.P.34 : Application for employment
dtd.20.04.1981.
Ex.P.35 to 43 : Emails.
List of witnesses examined and documents exhibited for defendants:
NIL (G.V.TURMARI) st 31 Addl. City Civil and Sessions Judge, Bengaluru.