Delhi District Court
Suit No.7726/16 Rajesh Roy vs . M/S Galaxy Biotech & Anr. on 8 April, 2019
Suit no.7726/16 Rajesh Roy vs. M/s Galaxy Biotech & Anr.
IN THE COURT OF SH. MUNEESH GARG, CIVIL JUDGE,
EAST, KARKARDOOMA COURT, NEW DELHI
Suit no.:7726/16
In the matter of--
Rajesh Roy
s/o Sh. Parikshan Roy,
r/o C14, Palika Niwas,
Lodhi Colony, Delhi110003
......Plaintiff
versus
1. M/s Galaxy Biotech
(through its director/partner/proprietor/AR)
2. Santosh Gouniyal
Sales Manager in Galaxy Biotech
both r/o G81, 1st Floor,
Laxmi Nagar, Delhi
......Defendant
Date of Institution of suit:09.09.2014
Date of reservation of judgment:11.10.2018
Date of pronouncement of judgment:08.04.2019
Page No.1/22
Suit no.7726/16 Rajesh Roy vs. M/s Galaxy Biotech & Anr.
JUDGMENT:
1. Vide this common judgment, I shall decide the suit of the plaintiff and counterclaim of the defendants.
2. Initially Plaintiff field a suit for recovery of an amount of Rs. 1,55,436/ alongwith interest @ 18% against the defendants under Order XXXVII CPC. However, vide order dated 09.09.2014, Ld. Predecessor of the Court passed order that present suit cannot be tried under Order XXXVII CPC. On 13.11.2014, plaintiff moved an application under VI Rule 17 CPC and modified the amount of claim and sought recovery of Rs. 1,75,236/ from the defendants and his application was allowed vide order dated 13.11.2014.
Pleadings of the Plaintiff:
3. In brief, it is a case of the plaintiff that plaintiff was employed with defendant no.1 on a monthly remuneration of Rs. 33,000/ per month excluding P.A., DA and other allowances with effect from 19.01.2013 vide appointment letter dated 19.01.2013. It is further stated that defendant no.1 is a sole proprietorship firm and carrying business of sales promotion of medicine in Delhi, NCR & different states of India and defendant no.2 is the owner/proprietor of the defendant no.1 and also working as a Sales Manager in defendant no.1.
4. It is further submitted that plaintiff had served his duty with utmost sincerity and honesty according to the directions of the defendants and role assigned to him. Plaintiff had never been subjected to any enquiry, disciplinary actions or notice for any unethical or irresponsible behaviour towards defendants or its Page No.2/22 Suit no.7726/16 Rajesh Roy vs. M/s Galaxy Biotech & Anr.
policies. It is further submitted that plaintiff was on a monthly remuneration of Rs. 33,000/ per month and it was also stipulated in the appointment letter dated 19.01.2013 that defendant no.1 would make payment of salary before 7 th of every month. It is further submitted that it is mentioned in the appointment letter dated 19.01.2013 that salary of the plaintiff will be revised after a period of 6 months and he will be entitled for other facilities such as group insurance and family health card. It is further stated that after joining with the defendant no.1, plaintiff never got his salary on time and defendant no.1 used to delay the payment of plaintiff deliberately. It has been averred that plaintiff got his salary till September, 2013 and after that salary of the plaintiff was not paid to him. Accordingly, salary for the period from 1st October 2013 to 31.01.2014 is due upon defendant no.1.
5. It is further submitted that plaintiff worked with defendants for one year and his remuneration/salary was to be revised after expiry of six months as per the appointment letter dated 19.01.2013 from the date of joining i.e. his salary was to be revised in the month of August. However, plaintiff got his salary at the previous decided rate and never revised by defendants and plaintiff got his salary at the same rate i.e. 33,000/ per month till 30.09.2014 and when the plaintiff asked to reimburse his due salary, defendant started avoiding on one pretext or the other. It is further stated that despite various request made by the plaintiff, defendants did not pay single penny towards the outstanding salary, as a result of which, Page No.3/22 Suit no.7726/16 Rajesh Roy vs. M/s Galaxy Biotech & Anr.
plaintiff had to mailed his resignation letter on 31.01.2014, which was accepted by defendants on 31.01.2014.
6. It is further statement that plaintiff had resigned on 30.01.2014 and during the period of service of plaintiff, defendant no.1 had never given salary on time and its payment mode was not appropriate and irregular and it became extreme difficult for the plaintiff to manage his household needs due to unethical professional practices prevailing in the firm by making late payment to their employee. It is further stated that during the tenure of service of plaintiff, defendant no.2, on behalf of defendant no.1, verbally offered the shares of defendant no.1 to the plaintiff and pressurized the plaintiff to purchase the share of defendant no. 1. Due to this reason, Plaintiff paid Rs. 50,000/ to the defendant no.1 i.e. Rs. 47,000/ deposited in cash in the account of defendant on 03.06.2013 and defendant no.2 deducted Rs. 3,000/ from the salary of plaintiff in lieu of issuing alleged shares of defendant no.1. However, those shares were never issued to the plaintiff by defendants.
7. It is further stated that as per records/statement of plaintiff, sum of Rs. 1,75,236/ is due upon the defendants as Rs. 50,000/ were paid to the defendants in lieu of issuance of shares and Rs. 1,25,236/ are due for nonpayment of salary from 01.10.2013 to 31.01.2014 and increments for the six months @ 10% of the salary from 01.08.2013 onwards and other expenses i.e. facilities such as group insurance and family health card & P.A., D.A. and other allowances which the plaintiff bore from his pocket during the course of his service.
Page No.4/22Suit no.7726/16 Rajesh Roy vs. M/s Galaxy Biotech & Anr.
8. It is further stated that after resignation, plaintiff asked several times for clearance of dues i.e. salary for the period from 01.10.2013 to 31.01.2014, however, defendant has not paid any heed to it. Plaintiff issued a legal notice dated 05.05.2014 through his counsel for the payment of outstanding dues within 15 days alongwith the cost of legal notice. However, defendants did not give reply to the same. It is submitted that amount claimed in the said notice was miscalculated and wrongly mentioned and after noticing the same, plaintiff served a corrigendum dated 28.07.2014. However, defendants neither gave reply to the notice dated 05.05.2014 and corrigendum dated 28.07.2014 nor cleared the due salary. Hence, plaintiff filed the present suit for recovery.
Written Statement of the defendants:
9. Defendants filed the written statement and contested the suit. It is stated in the preliminary objections that plaintiff has not approached the court with clean hand and concealed material facts from the court, thus, present suit is liable to be dismissed.
It is submitted that plaintiff, as an employee of the defendant company, used to take goods from the office of defendants and deliver the same to its customers and was also responsible to collect payments on behalf of defendants. It was the duty of plaintiff to timely deposit the amount collected in the office of defendants but he was in a habit of not depositing the payment in the office of defendants on time. Due to this, some invoices are still unpaid by the plaintiff and plaintiff had already got the payment from the dealer/retailers/shopkeepers and defendants suffered financial losses due to this.
Page No.5/22Suit no.7726/16 Rajesh Roy vs. M/s Galaxy Biotech & Anr.
10.It is further contended that plaintiff filed the present suit with mala fide intention only to harass the defendants and to grab the amount which is due upon the plaintiff. It is submitted that during his employment with defendants, plaintiff used to request for the advance payment from defendant no.2 and defendant no.2 used to make advance payments through cheques and sometime in cash.
11.It is further contended that suit is liable to be dismissed as there is no cause of action against the defendants. It is submitted that defendants had paid salary regularly through cheque or in cash mode to the plaintiff and infact advance payment as salary was also paid to the plaintiff whenever plaintiff requested for the same. It is stated that defendants already paid excess amount of salary to plaintiff through cheque or cash mode. It is stated that as per statement of bank accounts of defendants, sum of Rs. 4,16,481/ has already paid to plaintiff through cheques on different dates towards salary which is already excess amount in terms of plaintiff's salary.
12.It is stated that on 26.06.2013, defendant and his friend visited the house of plaintiff due to casualty of his baby. At that moment, Plaintiff asked for some economic help and defendant no.2 gave Rs. 20,000/ to the plaintiff. It is further stated that on 04/01/2014, plaintiff requested for some money in cash as he was going to Bihar for some personal work and he was in dire need of money, then defendant paid Rs. 20,000/ in cash to plaintiff.
13.It is further stated that before leaving the service, plaintiff has to obtain no dues certificate from those Page No.6/22 Suit no.7726/16 Rajesh Roy vs. M/s Galaxy Biotech & Anr.
stockiest/dealers/shopkeepers to whom he delivered the goods but plaintiff did nothing to do so. It is also stated that plaintiff obtained no dues certificate from Shree Shyam Enterprises fraudulently. It is also submitted that payment of Rs. 13,642/ and Rs. 11,181/ is due on the plaintiff which he had already collected from Om Drug House and Aditi Medicals, Lohaghat, Champawat, Uttrakhand but same was not paid to the defendants by the plaintiff.
14.It is further stated that plaintiff took 28 leaves from the defendant's office. However, only one leave was permitted in one month. It is stated that Rs. 1100/ were to be deducted for every leave. Hence, Rs. 30,800/ are due on the plaintiff.
15.It is further submitted that plaintiff left the job voluntarily. Defendants never asked the plaintiff to leave the job from his office despite of his misbehavior.
16.On merits, defendants stated that plaintiff approached the defendant no.1 for job and he was appointed as a District Manager at a monthly salary of Rs. 33,000/ p.m. vide appointment letter dated 19.01.2013. It is stated that salary was to be revised after review of regular performance. It is submitted that work of plaintiff during his employment was never satisfactory and therefore, his salary was not revised. It is submitted that plaintiff had not mentioned any reason for resignation in the email received on 31.01.2014. However, defendant no.2 gave due reply to the said email of plaintiff and requested to deposit the company property which was/is lying with him and also obtain NOC from the stockiest. It is submitted that neither plaintiff obtained NOC from all the Page No.7/22 Suit no.7726/16 Rajesh Roy vs. M/s Galaxy Biotech & Anr.
stockiest nor return the property of firm. It is also submitted that after receipt of notice, defendants orally talked with plaintiff in reply to notice and asked the plaintiff to make the payments to defendant which already paid in excess and other outstanding of invoices which were given to plaintiff as goodwill basis to deliver the goods/medicine to other drug agency/shop/stockiest and not deposited in the office of defendants. Defendants denied other averments of the plaint and sought dismissal of the suit.
Counterclaim of the defendants:
17.It is stated that facts stated in the written statement and documents filed as annexure D1 be read as part and parcel of the counterclaim for the sake of brevity. It is submitted that respondent/plaintiff has willfully destroyed the business of the counterclaimant and filed a false recovery suit to extort money from the counterclaimants/defendants. It is stated that counter claimant no.2 had given goods for delivery to stockiest/dealer and payments of the goods was to be deposited in the office of counterclaimant by the respondent/plaintiff. Plaintiff/respondent collected the amount from stockiest/dealer but he did not deposit it in the office of counterclaimant. Therefore, counterclaimant suffered loss of amount of Rs. 24,823/ and they are entitled to recover the same from respondent/plaintiff. It is stated that counterclaimant had already paid excess amount to the plaintiff/respondent through cheques. According to salary of the plaintiff, total calculated salary is Rs. 4,15,800/ but defendant no. 2 has already paid excessive amount i.e. Rs. 4,16,481/ through cheques.
Page No.8/22Suit no.7726/16 Rajesh Roy vs. M/s Galaxy Biotech & Anr.
Therefore, defendants/counterclaimants are liable to recover the excess amount from the plaintiff.
18.It is further stated that on 26.06.2013, defendant and his friend visited the house of plaintiff due to casualty of his baby. At that moment, Plaintiff asked for some economic help and defendant no.2 gave Rs. 20,000/ to the plaintiff. It is further stated that on 04/01/2014, plaintiff requested for some money in cash as he was going to Bihar for some personal work and he was in dire need of money, then defendant paid Rs. 20,000/ in cash to plaintiff.
19.It is further stated that plaintiff took 28 leaves from the defendant's office. However, only one leave was permitted in one month. It is stated that Rs. 1100/ were to be deducted for every leave. Hence, Rs. 30,800/ are due on the plaintiff. Therefore, above said amount is liable to be recovered from the plaintiff. Hence, defendants/counterclaimants filed the counter claim for recovery of Rs. 96,301/ alongwith interest @ 18% against the plaintiff/respondent.
Reply to the Counterclaim:
20.Plaintiff filed reply to the counter claim and took followings preliminary objections:
(a) That the counterclaim of the defendants is absolutely false and frivolous and is counter blast to the suit filed by the plaintiff, therefore, same is liable to be dismissed.
(b) That the documents filed by the defendants with their counter claim and written statement are false and there is no iota of truth in it.Page No.9/22
Suit no.7726/16 Rajesh Roy vs. M/s Galaxy Biotech & Anr.
(c) That the counter claim of the defendants is based on concocted story and has been filed to grab the salary of the plaintiff which has been demanded by the plaintiff in his recovery suit.
21.On merits, plaintiff denied the averments and contents of the counterclaim and sought dismissal of the counterclaim.
22.Plaintiff filed replication and controverted the allegations of defendant no.2 made in written statement and further reaffirmed the averments made in the plaint.
Issues
23.After completion of pleadings, following issues were framed on 19.08.2015:
1. Whether the plaintiff is entitled to a decree of Rs.1,05,436/ with pendente lite and future interest as prayed for? OPP.
2. Whether counter claimant / defendant is entitled for recovery of Rs.96,301/ with pendente lite and future interest as prayed for in the counter claim? OPCC.
3. Relief.
Evidence:
24.Thereafter, plaintiff examined himself as PW1. He has placed on record his testimony by way of affidavit Ex. PW1/A and also produced on record the following documents--
Ex. PW1/1 Appointment letter of the plaintiff issued by the defendant.
Ex. PW1/2 and Various communications via email which Ex. PW1/3 have ensued between the parties.
Page No.10/22Suit no.7726/16 Rajesh Roy vs. M/s Galaxy Biotech & Anr.
Mark A NOC issued by Ronie Maditrades was
mentioned.
Mark B No dues certificate issued by Sh. Shyam
Enterprises.
Ex. PW1/7 Legal notice.
Ex. PW1/8 Corrigendum of notice dated 05.05.2014.
Ex. PW1/9 Original postal receipt.
(colly)
Ex. PW1/10 Original bank deposit slip.
Ex. PW1/6 Certified copy of account statements of
plaintiff from 01.01.2013 to 24.02.2014.
25. Evidence of the plaintiff was closed on 01.03.2017.
26.Defendant no.2 examined himself as DW1. He has placed on record his testimony by way of affidavit Ex. DW1/A and relied upon documents i.e. Copy of statement of accounts is D1 (colly). Defendant no.2 examined Sh. Vipin Kumar as DW3. He tendered his evidence by way of affidavit Ex. DW3/A. Sh. Muharram Ali was examined as DW4 and he tendered his evidence by way of affidavit Ex. DW4/A. Evidence of the defendant was closed on 10.07.2018.
27.Final arguments are heard. Record is perused. My issuewise findings are as follows:
Page No.11/22Suit no.7726/16 Rajesh Roy vs. M/s Galaxy Biotech & Anr.
Issue No.1:Whether the plaintiff is entitled to a decree of Rs. 1,05,436/ with pendente lite and future interest as prayed for? OPP
28. It appears that issue has been inadvertently framed for sum of Rs. 1,05,436/ by Ld. Predecessor of the Court on the basis of original plaint. Plaintiff had modified his claim through amendment and sought recovery of Rs.1,75,236/. Accordingly, issue no.1 be read as 'for decree of Rs. 1,75,236/' instead of 'decree for Rs. 1,05,436/'.
29.In the instant suit, plaintiff has claimed an amount of Rs. 1,75,236/ towards his salary of four months i.e. from October 2013 to January 2014 and towards incentives/expenses. Moving to the claim of the plaintiff, at the outset it is to mention that plaintiff has claimed the amount in question on some fanciful calculations regarding incentives/expenses, without explaining the same and without adverting to, on what basis and on account of what expenses as met by him or anybody else, he is claiming such an amount. He has not even explained as what was the incentive and on account of what work, the incentive was given and no document has been filed and proved on record in this regard. It is amusing to note that even on the totalling of the various figures as enumerated by him in his written arguments in paragraph no. 07 as various payments that accrued to him from defendants i.e. a sum of Rs. 5,97,236/ (419000+111236+47000+10000= 5,97,236/), when subtracted with the total payments as allegedly paid to him during his tenure of job with defendant i.e. Rs. 4,22,081/, the sum comes to Rs. 1,75,155/ and not 1,75,236/, as claimed by him in the Page No.12/22 Suit no.7726/16 Rajesh Roy vs. M/s Galaxy Biotech & Anr.
present suit. It is pertinent to mention that this is the sum mentioned in the suit after an amendment in the plaint was allowed to the plaintiff.
30.For a while, the claim of salary of four months is kept separate to be discussed later and let us take up the alleged dues in sum of Rs. 1,11,236/ towards incentives/expenses, Rs. 47,000/, as sum paid for shares of plaintiff to get interest in profit and Rs. 10,000/ further allegedly paid to the defendants. Coming to the figure of Rs. 1,11,236/, plaintiff has not explained as to on what basis this sum was being claimed by him as incentives/expenses. According to the plaintiff, as stated during his crossexamination for the first time, he was asked to deposit 1.25 lakhs as a beneficiary of 05 percent in profit of Defendant no.1 at the time of his joining, but there is no such document placed and proved on record to show that there was an such agreement between the parties in this regard at any stage of his employment and the terms and conditions of any such agreement is not proved on record. The appointment letter of plaintiff Ex CW1/1 reflects that his salary was supposed to be revised in six months. However, the appointment letter does not provide anything further. It is not known as to whether revised salary was to be an enhanced sum or it could be decreased as well. The line preceding the stipulation of revision of salary in the document Ex CW1/1 mentions that the performance of the employee i.e. plaintiff was also to be assessed and it logically follows that any enhancement of salary was conditional upon a favorable review for plaintiff. The salary amount of Rs. 33,000/ was payable as cost to the Page No.13/22 Suit no.7726/16 Rajesh Roy vs. M/s Galaxy Biotech & Anr.
Company and hence, the same cannot be stated to be an exclusive and fixed sum of money. In any case, it is not the case of plaintiff that his salary was ever actually revised and enhanced. Plaintiff might be having grievance that his salary was not revised despite passage of six months' time; however, it does not give him an authority to calculate his entitlement for more than Rs.33,000/ per month or any amount exceeding the monthly salary on account of any imaginary and arbitrary figure claimed as incentives and expenses. There is nothing in the entire document Ex CW1/1 to suggest that any incentive was ever given to plaintiff on any count and if so, how much was the same and why the same was given and on what occasions and for what transaction. As far as plaintiff is concerned, he had not stated a word to show how this much of amount was due to him toward any kind of incentive and expenses. He did not even divulge details to show what kind of expenses were incurred and by whom, which were payable by defendants to him and out of the sum of Rs. 1,11,236/, how much was towards incentives and how much was towards expenses and whether both were same or distinct. Hence, the claim of Plaintiff regarding any such sums is not at all substantiated on merits.
31.Coming now to the allegation that he was not being given salary for four months from October 2013 to January 2014, it is seen that first and foremost, plaintiff has made contradictory statements in his plaint as well as in his testimony by way of affidavit. According to the claim in plaint, he was not given salary from October 2013 to January 2014 and that that he had Page No.14/22 Suit no.7726/16 Rajesh Roy vs. M/s Galaxy Biotech & Anr.
resigned on 30.1.2014. However, in his testimony, he deposed on oath by way of affidavit Ex PW1/A in paragraph number 5 that "...accordingly due upon the defendant no. 1 from 01 st October, 2013 to 31.10.2014.." Now, if he had already resigned on 31.01.2014, how could any dues be for the period beyond that. Plaintiff has made conflicting claims in the entire paragraph and at one place, he stated that he got his salary till September 2013 and thereafter, he salary was never paid to him, where at another place in succeeding lines he stated that "..the plaintiff got his salary at the same rate i.e. Rs. 33,000/ per month till September 2014.." It is pertinent to mention that the Court can not presume things on its own and take this as a mere typographical error in the testimony, when plaintiff has made inconsistent claims throughout, without documentary proof in support of his claims. It is seen that during his cross examination, plaintiff was also put a question whether he had mentioned all correct facts and date in his testimony by way of affidavit and he responded in affirmative. He further deposed that "It is correct that I have received the salary till September 2014." In the very next breadth, he volunteered that he had received salary till September 2013 and not till September 2014. Thereafter, he was confronted with his affidavit Ex CW1/1 paragraph number 5 where it was mentioned otherwise. Despite the confrontation, neither plaintiff took up the plea that there were inadvertent errors in the affidavit regarding dates, not he chose to move any application to lead any additional evidence in this regard. Even during final arguments, it was not pleaded on behalf of the plaintiff that typographical errors have crept in the testimony due to bonafide error and oversight.
Page No.15/22Suit no.7726/16 Rajesh Roy vs. M/s Galaxy Biotech & Anr.
Though it is apparent that the averment in the testimony is contrary to the plaint and that it is an admitted stand of defendants that plaintiff had resigned in January 2014, such repeated errors and a nonchalant attitude of plaintiff towards the said errors, coupled with the fact that even in the legal notice Ex. PW1/8, plaintiff has taken inconsistent plea of the dues being Rs. 1,55,436/, as different from the plaint that the total amount due was Rs. 1,75,236/ and further that he did not lead cogent evidence to show that no money towards salary was given over the months in question. Various entries in the bank account statement Ex.PW1/6 for the period 1.1.2013 to 30.1.2014 are not individually explained. A bare perusal of the statement show that various payments have been credited to the plaintiff between the alleged period of October 2013 to January 2014. For example, there is an entry of credit of Rs. 33,000/ on 18.11.2013, payment of Rs. 8796/ on 7.10.13, Rs. 10,000/ on 28.10.2013, Rs. 5000/ on 8.11.2013, Rs. 1000/ on 18.11.2013, Rs. 7000/ on 22.11.2013, Rs. 15,000/ on 2.12.2013, Rs. 9000/ on 10.12.2013, Rs. 4400/ on 11.12.2013, Rs. 7400/ on 13.12.2013, Rs. 5000/ on 7.1.2014, Rs. 9000/ on 22.01.2014, from defendant firm to the plaintiff.
32.Moving further, it is seen that when salary is calculated @ 33000/ per month, the total amount for the period of 13 months i.e. tenure of job of Plaintiff comes to Rs. 429000/. As per own admission of Plaintiff the total amount paid to him by defendants was Rs.4,22,081/, which is close to the figure of Rs. 429000/. According to defendants, a total sum of Rs. 4,16,481/ was given to plaintiff from time to time and that the Page No.16/22 Suit no.7726/16 Rajesh Roy vs. M/s Galaxy Biotech & Anr.
same was more than what was due to him, which was approximately Rs.3,98,200/ after deductions of unauthorized leaves. It was also deposed by D1 that while one leave per month was allowed, plaintiff has taken 28 leaves, for which Rs. 1100/was deductible from his salary. Both sides are making inconsistent claims. However, when plaintiff asserts a fact, the burden of proof is upon him to prove it on the standard of preponderance of probability. Plaintiff has failed to establish his claim on the basis of entries in his bank account statement and his appointment. No suggestion was given to DW1 that he did not take excess leaves in question or that no amount was to deductible from his salary for that. Plaintiff deposed in his testimony that he was on leave from 23.6.2013 to 1.7.2013. He further deposed in his crossexamination that "I do not remember that from 4.1.2014 to 14.01.2014 I had taken leave form the Proprietorship firm of defendant no. 2." He admitted that he used to keep visiting Bihar, where his native place is situated. Hence, it is clear that plaintiff has not come clear on the number of leaves taken by him. He has not specifically denied the claim of defendant that only 12 leaves per year were admissible and beyond it, money was to be deducted from his salary or for excess leaves, money was actually deducted from his salary. On a preponderance of probability, valid deductions form salary of plaintiff for his leaves is a clear possibility. At this juncture, it is pertinent to remember that in Sayed Muhammed Mashur Kunhi Koya Thangal v. Badagara Jumayath Palli Dharas Committee and Others, 2004 (7) SCC 708 the Hon'ble Supreme Court held that the plaintiff can only Page No.17/22 Suit no.7726/16 Rajesh Roy vs. M/s Galaxy Biotech & Anr.
succeed on the strength of his own case and not on the weakness of the defendant's case.
33.A civil case is not based on the same standard of proof as required in a criminal case, it is based on preponderance of probabilities. In the instant matter, in light of the above discussion the plaintiff has not been able to show that defendant is liable to pay the amount claimed by him. In view of the above discussion, issue stands decided in favour of the defendant and against the plaintiff.
Issue No.2 Whether counter claimant/defendant is entitled for recovery of Rs. 96,301/ with pendente lite and future interest as prayed for in the counter claim? OPCC
34.Moving to the counterclaim of the defendants, it is amusing to note that defendants have miserably failed to prove that anything was due to the defendant firm from the plaintiff. It is relevant to mention that in reply to the legal notice of plaintiff Ex. PW1/7, counterclaimant/defendant did not raise any such claim of dues from the plaintiff by sending written reply to the said notice and for the first time, raised such a plea before this Court by filing a counterclaim. No explanation whatsoever for this has been given by the counterclaimant. It is also relevant to mention that as far as alleged advance payments to plaintiff in presence of DW3 and DW4 is concerned, in his written statement, defendant has mentioned the eye witnesses to the advance payment as his 'friends', without divulging details like name and address of them in the written statement. However, during leading of evidence in the Court, defendant examines Page No.18/22 Suit no.7726/16 Rajesh Roy vs. M/s Galaxy Biotech & Anr.
two of his employees working under him, instead of any 'friends' of his and does not at any place in his evidence refer to them as his 'friends'. These discrepancies coupled with the glaring lapses mentioned below, shatter the claim of defendant/counterclaimant.
35.According to the defendants, the leave of only 12 days per year was permissible (one per month) and the same was allowed to employees including the plaintiff but that he had taken leaves exceeding that, which was for a period of 28 days in total. In the print out of email as filed on record by the plaintiff i.e. Ex. PW1/3, in conversation dated it 31.01.2014, it is mentioned by Defendant no. 2 that due to absenteeism from duty during notice period, salary of plaintiff would be deducted. It is also mentioned that he should settle all outstanding against him. It is relevant to mention that defendants failed to prove through any documentary evidence that anything was deductible from salary of plaintiff due to absence from duty and if so, how much of money was to be deducted per day. Though the two employees as examined by the defendants as DW3 and DW4 suggested in their depositions that salary of plaintiff was liable for deduction for extra leave as a penalty, they are silent as to how much money was to be deducted for each leave. Further, there is no document placed and proved on record either by defendants to prove the number of leaves taken by plaintiff or to show any condition of employment regarding deduction from salary for absentees and at what rate.
36.According to the testimonies of DW1, DW3 and DW4, Defendant had visited the house of plaintiff on 26.06.2013 at Page No.19/22 Suit no.7726/16 Rajesh Roy vs. M/s Galaxy Biotech & Anr.
the time of casualty of his son and handed over money in sum of Rs. 20000/ to him as a help. Further that on 04.01.2014, plaintiff was in need of money and sought financial help form defendant no. 2 and he handed over money in sum of Rs. 20000/ to plaintiff. However, such statements on the part of defendant no. 1 as well as DW3 and DW4 are of no avail and do not at all inspire confidence, in absence of any documentary and any other circumstantial evidence in this regard. It is seen that Defendant has not led any document in evidence to suggest that he arranged for such alleged payments by withdrawal from his bank account or otherwise for payment to the plaintiff and if at all any such help was rendered, whether it was gratuitous or as an advance for the salary. Plaintiff was never served with any legal notice and no document was ever executed between plaintiff and defendant regarding any such transaction. In absence of any document to support such claim and in the wake of specific denial of plaintiff, the claim remains unsubstantiated. According to the defendant, plaintiff remained absent from duty for 28 days. It comes to fore through testimonies of DW3 and DW4 that the total leave allowed in a month was one. Plaintiff admitted that he remained on leave from 23.06.2013 to 01.07.2013 during the birth of his child. It is not the specific plea taken up by plaintiff that he did not take leaves beyond what was supposed to be taken but he nowhere stated that any salary was to be deducted for any leave taken by him or what was the exact leave allowed to him in a year or month. The appointment letter of Plaintiff is silent on the point of leaves and deduction, if any permissible from salary. Further, it is apparent from the account statement of the plaintiff that Page No.20/22 Suit no.7726/16 Rajesh Roy vs. M/s Galaxy Biotech & Anr.
even salary was not always credited in his account on any fixed date and time in a month on a regular basis. Rather, bank statements as filed on record by both sides show the flowing and continuous nature of transactions/credit, which need not always have related to payments towards salary alone and each entry is not explained by either side. No documentary evidence has been proved and placed or record to show how many leaves were actual taken by plaintiff and how many were allowed. No attendance register has been produced and proved on record. It is seen that there is nothing brought on record to suggest that any notice in writing was served to the plaintiff for his alleged unauthorized leaves or that he was ever intimated that any deductions on account of his absence would be made from his salary. There is no evidence produced in the Court to suggest as to what was the rate at which the deduction if any was to be made from salary and after how many leaves. Hence, defendant/counterclaimant has miserably failed to prove his claim.
37.Hence, Counterclaim of defendants for a sum of Rs. 96,301/ also fails and perishes along with the present suit. Suit and Counterclaim are decided in terms of abovesaid observations.
Relief
38.In view of the findings given on issue no.1 and 2, documents placed on record, pleadings of the parties and evidence led by the parties, the plaintiff and counterclaimant have failed to prove their case on the scale of preponderance of probabilities. Accordingly, the suit of the plaintiff and counter claimant of Page No.21/22 Suit no.7726/16 Rajesh Roy vs. M/s Galaxy Biotech & Anr.
defendant is dismissed. Let a decree sheet be prepared in the aforesaid terms. All pending applications, if any, are disposed off as not pressed. File be consigned to record room after necessary compliance.
Order passed in capacity of civil Judge 1, East District, Karkardooma Court in compliance of directions in circular no. 12/DHC/Gaz./G7/VI.E2(a)/2019 dated 26.03.2019(Today taken charge as and presently working as MM3, NorthEast District, Karkardooma Courts, Delhi Judgment dictated and Announced in the Open Court Muneesh Garg on 08.04.2019 Civil Judge/East District The judgment contains 22 pages all checked and signed by me.
MUNEESH GARG Digitally signed by MUNEESH GARG Location: Karkardooma Courts, Delhi Date: 2019.04.08 17:07:44 +0530 Page No.22/22