Delhi High Court - Orders
Lovesh Gaur vs M/S. Sfo Technologies Private Limited on 28 April, 2022
Author: V. Kameswar Rao
Bench: V. Kameswar Rao
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 99/2021, CM APPLs. 14461/2021 & 14665/2021
LOVESH GAUR
..... Appellant
Through: Mr. Parveen Kumar Aggarwal and
Ms. Kajal S. Gupta, Advs.
versus
M/S. SFO TECHNOLOGIES PRIVATE LIMITED
..... Respondent
Through: Mr. Nagendra Kasana, Adv. with
Mr. Sunil Chauhan, Ms. Palak Munjal
and Mr. Manish, Advs.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
ORDER
% 28.04.2022 CM APPL. 14461/2021
For the reasons stated in the application, the same is allowed and the documents filed by the respondent are taken on record.
The application is disposed of.
RFA 99/2021 & CM APPL. 14665/2021
1. This appeal has been filed by the appellant challenging the judgment / decree dated December 20, 2019 whereby the Additional District Judge-05, South East, Saket Court, New Delhi (hereinafter referred as 'Trial Court') has decreed the suit of the appellant herein for a sum of ₹6,51,294/- along with interest @ 9% and also decree for recovery of ₹2,87,967/- to be paid within one month from the date of the judgment, otherwise the appellant shall be entitled to interest @ 9% per annum till realization.
2. I may at this stage, state, that the respondent herein has also filed cross objections to the judgment / decree dated December 20, 2019. The cross objections are only with regard to the amounts granted by the Trial Court and also seeking an amount of ₹41,579/- with interest on account of insurance premium of the car paid for two years despite the car being used by the appellant.
3. The facts as noted from the record are that the appellant / plaintiff (hereinafter referred as 'appellant') instituted a suit for recovery of ₹24,70,476/- comprising principal amount of ₹13,74,291/-, with ₹96,185/- towards interest and ₹10,00,000/- as damages alongwith pendente-lite and future interest @ 24% per annum against the respondent / defendant (hereinafter referred as 'respondent'). The case of the appellant before the Trial Court was that he joined the respondent as 'Senior General Manager' on February 03, 2014. He was promoted as 'Assistant Vice President' on September 01, 2014 and 'Vice President' on April 01, 2016. That on April 03, 2018, the respondent called him to its Cochin Office and pressurized him to resign from service. It was his case that he discharged his duties diligently and efficiently to the complete satisfaction of the respondent. There was no complaint against him during this tenure. It was his case that the respondent neither offered nor paid the amount ₹18,08,750/- due to him under the following heading:-
Sl. No. Head Amount
(i) Salary for two months @ ₹7,50,000/-
₹3,75,000/- per month
(As provided in promotion letter
dated 01.04.2016, notice period
is two months. However, it was
three months in the appointment
letter. The plaintiff is restricting
its claim to salary for two
months only)
(ii) Salary for 3 days for the month ₹36,750/-
of April, 2018
(iii) 80 privileged leaves (PL) ₹10,00,000/-
(iv) Reimbursement of bills towards ₹22,000/-
out of pocket expenses incurred
by the plaintiff
4. He had requested the respondent several times via telephone and e- mails to pay the said amount. The respondent did not pay any heed to his request. Instead, the respondent intended to settle account by adjusting price of Honda Amaze No. KA 51 MF 3608. It was his case that he had brought to the notice of the respondent that he did not want to retain the said car and had requested the respondent to receive delivery of the said car. The appellant also intended to return laptop of the respondent which was being used by him during his tenure. He sent notice dated May 15, 2018 to the respondent. On service of the said notice, the respondent transferred an amount of ₹4,34,459/- to the bank account of the appellant on May 25, 2018. It was his case that the respondent was liable to pay an amount of ₹13,74,291/-, after adjustment of the said amount. Having failed to pay the said amount, he has approached the Trial Court.
5. The case of the respondent before the Trial Court was that it was not liable to pay any amount to the appellant. The appellant had resigned from employment of the respondent. Therefore, the appellant is not entitled to seek two month's salary or notice of two months before termination of service. It was also the stand of the respondent that he has already been paid an amount of ₹36,750/- towards salary of three working days from April 01, 2018 to April 03, 2018. It was stated that the respondent has also paid ₹3,42,750/- towards leave encashment as per The Factories Act, 1948 and ₹11,962/- towards travel expenses on the date of resignation. It was also stated that the respondent sold the said car provided to the appellant for official purpose, as per his request, for sale consideration of ₹4,50,000/- on April 03, 2018. The respondent with regard to salary, stated that the same was missed while computing amount on April 03, 2018. Subsequently, the respondent released an amount of ₹4,34,459/- to the appellant on May 25, 2018.
6. The case of the respondent, on merit was that the appellant was given independent charge of business development in the northern part of India. However, the appellant did not deliver result to justify salary and expenses. On April 03, 2018, the appellant was called to attend a meeting with management of the company at its corporate office at Cochin, Kerala for review of business development activity and performance evaluation. The respondent expressed dissatisfaction and instructed the appellant to improve performance and add more clients from northern region and bring more business from the existing customers. Surprisingly, the appellant tendered a written resignation citing 'unavoidable reasons' and requested for relieving him from his duties.
7. A replication was filed by the appellant. On the basis of the pleadings, the following issues were framed:-
(i) Whether the documents R-2 to R-4 filed by the defendant were signed by the plaintiff under duress and coercion? (OPP)
(ii) Whether the defendant had paid entire outstanding dues to the plaintiff and the same was also accepted by the plaintiff as full and final settlement of accounts in terms of paragraph 5 of the preliminary objection in the WS?
(OPD)
(iii) Whether the plaintiff is entitled to a decree of suit amount of ₹24,70,476/- in terms of prayer clause (a) of the plaint? (OPP)
(iv) Whether the plaintiff is entitled to any interest, if so, at what rate and for which period? (OPP)
(v) Relief. (OPP)
8. On issue Nos.1 to 4, the Trial Court was of the view, the case of the appellant was that he has not tendered resignation voluntarily but under duress, threats and pressure. The reasoning given by the Trial Court was that the appellant for the first time sent an e-mail on April 10, 2018 to N.Jehangir Khan. In the said e-mail, the appellant merely stated that he was pressurized to leave the company. In the said e-mail, the appellant has not narrated the entire sequence of events from which inference of undue pressure, threat or influence could be raised.
9. On the plea of the learned counsel for the appellant that there were cuttings in hand written resignation letter shows that the said letter was not written in a perfect mental condition the Court held the same would not help his case. It was of the view that certain interpolations / cuttings in the said resignation letter are not sufficient to raise the inference of involuntary resignation. Even the plea of the appellant that there was no necessity of typed resignation letter and two resignation letters, as aforesaid, would show that the resignation letters were not voluntary, is without merit. On the basis of the said finding, the Court held that the appellant, who is claiming an amount of ₹7,50,000/- i.e., ₹3,75,000/- as salary for each month for two months notice period cannot be granted to the appellant.
10. Similarly, the Trial Court has also rejected the claim of the appellant for ₹10,00,000/- as damages claimed by the appellant on account of the fact that his career suffered adversely and he was without employment for three months. The Trial Court's view on this was that the appellant having resigned from service of the respondent on April 03, 2018, the appellant is not entitled to this amount.
11. On the aspect of privileged leaves, it was the case of the appellant that he is entitled to 20 paid leaves in a year. This statement was not challenged by the respondent. It was held by the Trial Court, the respondent, in the break-up of the full and final settlement, has mentioned 80 privileged leaves payable. However, the respondent has paid for 30 privileged leaves. Accordingly, it was held that the appellant is entitled for encashment of 80 privileged leaves instead of 30 privileged leaves.
12. The Trial Court held the reliance placed by the respondent on the provisions of the Factories Act, 1948 cannot be accepted for the reason that the Act is applicable to workers and not Managers and Executives. The respondent had also taken a stand that the appellant is not entitled to more than 30 days privileged leaves on account of policy of the respondent. The Trial Court held, no such policy was filed or shown to have been provided to the appellant at the time of his induction. Accordingly, the Trial Court has granted 50 unpaid privileged leaves of ₹6,25,000/- to the appellant.
13. That apart, an amount of ₹11,962/- has been granted to the appellant on account of travelling expenses.
14. Further claim of the appellant was with regard to claim of ₹2,87,967/- which amount has been deducted by the respondent for car. The case of the appellant was that he intended to return the car to the respondent for the simple reason that the car was having registration number of Karnataka and he would be incurring extra expenses for transfer of registration of the said car. That apart, he is already having one car and he cannot afford another car in the absence of any employment. The Trial Court was of the view that the respondent be directed to receive the car from the appellant and transfer an amount of ₹2,87,967/- which amount was deducted from the amount due to the appellant.
15. The Trial Court has also granted an amount of ₹14,332/- as interest @ 9% per annum on the amount of ₹6,36,962/- from April 03,2018 to July 03, 2018. It has also granted pendente-lite and future interest @ 9% per annum on the amount of ₹6,51,294/-.
16. The submissions of Mr. Parveen Kumar Aggarwal, learned counsel for the appellant are primarily the same, which have been made by him before the Trial Court, inasmuch as the appellant having done exceedingly well and produced good results, which aspect has not been rebutted by the respondent, there was no reason for the appellant to tender his resignation. He states, it was during the performance evaluation meeting, the expression of dissatisfaction on the business development by the appellant, is false and unsubstantiated. There was no document to suggest under performance on the part of the appellant nor any averment or document to suggest as to how and on what basis, the evaluation was conducted. The fact that the appellant was called to the Corporate Office at Cochin on the pretext of attending a meeting with Senior Management and it was during the said meeting, the appellant was forced to sign the resignation letter in presence of various Officers of the respondent in the meeting shows the appellant was pressurised. It is the submission of Mr. Aggarwal that the terms of appointment clearly stipulates that if the appellant had to leave the Company he would have done it by giving a two month's notice or giving a salary of two months in lieu thereof. The very fact that the respondent had not insisted upon such a notice / payment would clearly reveal that the resignation was at the insistence / by pressurizing the appellant.
17. According to Mr. Aggarwal, it was also the best way for the respondent to avoid paying the salary for two month which is payable, if they had terminated the services of the appellant. He stated that it was immediately thereafter, the appellant vide his e-mail dated April 10, 2018 had in detail given the background under which the appellant was pressurized to leave the Company, which the appellant did not intend to. He has also drawn my attention to e-mail dated April 14, 2018 addressed to the appellant by a higher official of the respondent Company who stated that there are reasons for the removal of the appellant. In other words, the intention of the respondent was to remove the appellant. Since the same involved issuance of notice or payment of two month's salary, the respondent thought it best to seek a resignation from the appellant. Mr. Aggarwal has also drawn my attention to the two resignation letters placed on record, first is a handwritten with correction, which signify that it was not a resignation letter, which is given in ordinary course. He has also drawn my attention to the examination in chief filed by the respondent of its witness, who stated in paragraph 6 as under:-
"6. I further state that despite waiting for 2 years, when no progress was seen by the Defendant Company towards fulfilling the commitment by the Plaintiff. Accordingly, on 03.04.2018, the Plaintiff was called to Kochi Office of the Defendant Company to discuss his non-performance, which was otherwise assured by him and owing to which he was promoted to the post of Vice President."
18. He has also drawn my attention to pages 143 and 144 of the paper book, wherein a suggestion was put by him to the respondent's witness that it is the respondent's company who had threatened the appellant to offer his resignation. He also referred to a suggestion given by him that the appellant had never offered to resign nor he tendered the resignation. He concedes to the fact that said suggestions were denied by the witness of the respondent. According to Mr.Aggarwal, on the strength of the documents, it is clear that the so-called resignation tendered by the appellant is not a resignation in the eyes of law but a termination. If a termination has been effected then the appellant is entitled to notice or pay in lieu thereof, which has been denied for which a claim has been made by the appellant. He also states, if the termination is illegal, the appellant is entitled to the damages of ₹10,00,000/- as prayed by him. He states, these reliefs should have been granted by the Trial Court in favour of the appellant.
19. On the other hand, learned counsel appearing for the respondent would contest the impugned judgment / decree only to the extent the Trial Court has granted the privileged leaves on the ground that the same were unpaid. He states, as per relevant HR manual of the respondent as filed as Annexure R-2 to the application for additional evidence, the appellant shall only be entitled to maximum of 30 privileged / earned leaves. He has also relied upon the provisions of the Kerala Shops and Establishment Act, 1960, which provides for a maximum of 30 privileged / earned leaves. Hence, the only amount, which shall be payable to the appellant was ₹3,42,750/- which was paid to the appellant at the time of resignation.
20. That apart, he states that the amount of ₹2,87,967/- granted to the appellant could not have been granted in the absence of any relief sought in respect of car or value of the car. He further states that as per the appellant himself, the value of the car as on April 03, 2018 was around ₹2,00,000/- or ₹2,50,000/- and not more than that. Further, judicial notice can be taken of the fact of depreciation in the value of the car after about two years, which would make the value of the car as ₹1,50,000/- or ₹2,00,000/- and nothing more. He also states that the appellant has unjustly enriched himself by using the car all these years during which period the respondent Company had to pay an amount of ₹41,579/- for the car insurance for two consecutive years. Hence, the respondent is liable to get back the said amount with interest from the appellant.
21. Having heard the learned counsel for the parties, insofar as the appeal filed by the appellant is concerned, he has primarily challenged the judgment / decree of the Trial Court to the extent that the Trial Court rejected his claim for ₹7,50,000/- on account of two months' salary in lieu of notice period and damages to the tune of ₹10,00,000/-. Insofar as his claim for ₹7,50,000/- is concerned, the plea of Mr. Aggarwal was that the resignation tendered by the appellant is under coercion and pressure from the Officers of the respondent Company and such is a termination for which, the respondents were required to give two months' notice or pay in lieu thereof. So, to answer the plea, it is necessary to decide whether the resignation was taken from the appellant under coercion and pressure.
22. Before, I deal with the submission made by Mr. Aggarwal, it is necessary to reproduce the finding of the Trial Court in this regard. In paragraphs 20 to 26, the Trial Court has held as under:-
"20. The plaintiff, in his cross-examination, stated that he was called to Cochin for discussion of his appraisal and business. He stated that the defendant had borne expenses of his visit to Cochin. He stated that, thereafter, he had handed over office keys and other miscellaneous items to Ms. Kanchan Madam, after returning to Delhi. It may be noted that the plaintiff, in his cross-examination, stated that Mr. N. Jehangir Khan (MD and Vice Chairman), Mr. U. Shafi (Sr. Vice President), Mr. Rajith (GM, HR) and Ms. Bindu Menon (PS, MD) were present in the said meeting on 03.04.2018. The plaintiff has not stated as to who had pressurized or forced him to resign from the defendant. The plaintiff has not stated as to what exactly transpired and discussed during that meeting. Mere statement that the defendant had pressurized the plaintiff to sign the resignation letter is not sufficient to make out a case of duress, undue influence or threat.
21. The plaintiff, in his cross-examination, stated that he returned from Cochin in the morning of 04.04.2018. The plaintiff for the first time, sent e-mail dated 10.04.2018 Ex.P18 to Mr. N. Jehangir Khan. In the said e-mail, the plaintiff merely stated that he was pressurized to leave the company. In the said e-mail, the plaintiff has not narrated the entire sequence of events from which inference of undue pressure, threat or influence could be raised.
22. In private service, service conditions are governed by agreement between the employer and the employee. According to promotion letter dated 01.04.2016 Ex.P3, the employee would be ·entitled to 2 months notice in writing or payment of 2 months salary in lieu of notice in case the management terminates the service which is not the case here.
23. Contention of Ld. Counsel for the plaintiff that there are cuttings in hand written resignation letter Ex.PW1/DX5 and it would show that the said letter was not written in a perfect mental condition would not help his case. Certain interpolations I cuttings in the said resignation letter are not sufficient to raise the inference of involuntary resignation.
24. Contention of Ld. Counsel for the plaintiff that there was
-no necessity of typed resignation letter Ex.PW1/DX6 and two resignation letters, as aforesaid, would show that the resignation letters were not voluntary, is without merit. Typed resignation letter Ex.PW1/DX6 was prepared as there were \ cuttings I interpolations in the hand written resignation letter Ex.PWl/DX5.
25. The plaintiff has not been able to prove that resignation letters dated 03.04.2018 were signed by him under duress and coercion.
26. The upshot discussion is that the plaintiff is not entitled to claim an amount of Rs. 7,50,0001- on account of salary of 2 months in lieu of notice period."
23. Having noted the finding of the Trial Court, I must state that the appellant had submitted his resignation on April 03, 2018. It was on the same day, some of the dues of the appellant were also paid. Till April 10, 2018, the appellant had not raised any issue, when the appellant had sent an e-mail to the Managing Director. Much reliance has been placed by Mr. Aggarwal on this e-mail to state that the appellant had narrated the sequence of events, which had taken place in the office of the respondent Company at Cochin, which resulted in him submitting the resignation. I have gone through the contents of the same. The relevant part of the e-mail where the appellant has stated that pressure was put on him to leave the Company is reproduced as under:-
"Now, I want to write few lines for our meeting on 3 rd April where you called me for an unexpectedly meeting and put pressure on me to leave the company. I agreed to sign the resignation letter on that day as I respected your words but whatever settlement is done by you at that time is not suiting the magnanimity of your character. Sir if you don't want my services, it is OK but at least give me my all dues. The calculation of my salary and PL done by HR is not correct. Let's get separated in a good and professional way. I am sharing my full & final detail of dues and other concerns with you. I request to consider these points and give me my dues at the earliest. Let's continue to maintain the good relationships as we are in the same field."
24. On a reading of the above, no doubt, the appellant had stated that pressure was put on him to leave the Company but he has also stated that he had agreed to sign the resignation letter as he had respected the words of the Managing Director, which clearly reveal the decision to tender the resignation letter was a conscious decision. The appellant had never stated that the resignation be allowed to be withdrawn. Rather, the appellant had only sought the payment of his salary, privileged leaves etc. He has also expressed his desire to get separated in a good and professional way. So, it is not a case where the appellant never wanted to leave the Company. In any case, the best evidence to prove whether the appellant had been forced to resign, is the document itself and, it is clear that the appellant had submitted his resignation for some unavoidable reason. He has also accepted certain dues paid to him on the very same day. This Court is of the view that the Trial Court was right to hold that the appellant has not been able to prove that the resignation letter dated April 03, 2018 was signed by him under duress or coercion. Resultantly, the claim of ₹7,50,000/- was rightly denied. It also follows the claim for ₹10,00,000/- as damages was also rightly rejected.
25. Now coming to the objections filed by the respondent to the impugned judgment / decree. One of the objections is that the appellant is entitled to only 30 privileged leaves and not 50 as has been granted by the Trial Court. The reliance in this regard has been placed by the respondent on the HR manual as well as Kerala Shops and Establishment Act, 1960. The Trial Court has rejected the submission of the respondent on the ground that no policy has been filed or shown to have been provided to the plaintiff at the time of his induction. The Trial Court has also held that the respondent has not shown any policy, which restricts the privileged leaves of plaintiff to
30.
26. Suffice to state, the document now filed by the respondent in support of its case was never filed before the Trial Court. Rather, reliance was placed on the Factories Act, 1948 to contend that the privileged leaves to the appellant shall be limited to 30. The said argument was rejected by the Trial Court by stating that the Factories Act, 1948 is applicable to workers and not to Managers and Executives. Additionally, I state, the respondent has not filed on record any document to show that it had adopted the Act for its Managers and Executives.
27. Insofar as the reliance, now being placed by the respondent on Kerala Shops and Establishment Act, 1960 is concerned, there is no averment in the application for filing on record additional documents, that the respondent Organization was registered under the Kerala Shops and Establishment Act, 1960.
28. That apart, reliance has also been placed on the HR manual as well. I have seen the HR manual as well, more particularly 1(c) which refers to encashable limits, which reads as under:-
"1(c) Encashable limits :Maximum number of Earned Leave that can be encashed at time
1. In the case of workmen is 60 days
2. In the case of Executives is 30 days"
29. The said stipulation has no applicability to the facts of this case, more so when the appellant is seeking encashment of privileged leaves, while leaving the Company. Meaningfully read the said stipulation contemplates the maximum number of earned leaves that can be encashed at a time while in service. In the case of executives, it is 30 days. There is no restriction to encash all the earned leaves credited in the account of an employee while he is leaving the Company.
30. The second objection to the impugned judgment / decree is with regard to an amount of ₹2,87,967/-, granted to the appellant by the Trial Court as the price of the car. The ground urged, as a challenge to this amount is that the appellant had agreed to take the car and as such, the amount could not have been given to the appellant. A connected objection is that the appellant is liable to pay an amount of ₹41,579/- paid by the respondent as insurance charges for two consecutive years. I do not see any illegality, insofar as the amount of ₹2,87,967/- granted to the appellant as the price which the car would have fetched on the appellant returning the car for the reasons; the car is registered in Karnataka; the appellant already own one car; the respondent is having its office in Karnataka where the car can be used.
31. Insofar as the amount of ₹41,579/- is concerned, no letter has been placed on record by the respondent to show that they have been calling upon the appellant to pay the insurance charges for those two years. In any case, the car directed to be handed over to the respondent Company, the amount granted is justified. The objections vide CM 14665/2021 being without any merit, are dismissed. No costs.
V. KAMESWAR RAO, J APRIL 28, 2022/ak