Delhi District Court
Ashutosh Kumar vs . Stg International Ltd. on 23 May, 2013
Ashutosh Kumar Vs. STG International Ltd.
IN THE COURT OF MS. SHREYA ARORA MEHTA: CIVIL JUDGE1,
SOUTH DISTRICT, NEW DELHI
In the matter of
Suit No.124/11
Case ID No. 02406C0027132011
Ashutosh Kumar
S/o Sh. Uday Narayan Singh,
R/o Presently at H. No.595,
Near Mother Dairy,
Near CBlock, Paryavaran Complex,
Shaidulajaib, New Delhi.
Also at:
H. No.592/W20, C/o Balram
Panchsheel Colony, Sonipat,
Haryana131001.
...............Plaintiff
Versus
M/s STG International Limited
(Software Technology Group International Ltd.)
Through the General ManagerHR,
Head Office at:
9, Sector33, Gurgaon122001,
India.
..............Defendant
Date of Institution : 07.02.2011
Date of reserving the Judgment : 08.04.2013
Date of pronouncement : 23.05.2013
Decision : Decreed
SUIT FOR DAMAGES/RECOVERY OF RS.39,975/ (RUPEES THIRTY
NINE THOUSAND NINE HUNDRED SEVENTY FIVE ONLY)
JUDGMENT
1. This is a suit for damages/recovery of Rs.39,975/ (Rupees Thirty Nine Thousand Nine Hundred Seventy Five Only).
Suit no.124/11 Page 1 of 17Ashutosh Kumar Vs. STG International Ltd.
2. It is the case of the Plaintiff that defendant is a company constituted under the Companies Act, 1956 having its registered office at 9, Sector33, Gurgaon, 122001. The plaintiff was offered a post of Territory Manager vide letter dated 22.04.2010 and was appointed from 03.05.2010 at a monthly salary of Rs. 28,333/ vide appointment letter dated 01.05.2010. The said appointment letter entails the terms and conditions of service which was accepted by the plaintiff and the plaintiff was assigned the job of Business Development in Delhi and NCR.
3. It is averred that the Plaintiff after joining the service of the Defendant worked with full honesty, loyalty and dedication and as a result of his devotion towards his work generated optimum business for the company. The Plaintiff had only one aim of developing business opportunities for the Defendant Company and in that respect the Plaintiff visited nearly 26 colleges and schools and attended several review meetings with his superiors of the organization at the head office. It is stated that the Plaintiff was on many occasions accompanied by his superiors bosses in the field and who had acknowledged his good work.
4. It is further stated that the Plaintiff as per his job assignment was sending daily status and report to the management and his immediate superiors. It is averred that the Plaintiff was assigned to do his job work in East Delhi, Noida and Greater Noida for school and college activities and he left no stone unturned to create business opportunities and gave a lot of business to the company.
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5. The grievance of the Plaintiff is that when the Plaintiff was at the peak of achieving target and job for the company he suddenly felt opposition and nonacceptance from his superiors and a sudden change in their viewpoint without having any straight forward reasoning and justification. It is stated that the Plaintiff suddenly started facing criticism from his superiors in the organization so as to given a false impression of his non performance but he never reacted to the criticism of the superiors and concentrated on his work.
6. It is further averred that on 12.10.2010 the Plaintiff was sent a show cause notice stating false and baseless reasons mentioned therein. The Plaintiff was stated to be irregular in attending office and having not attended office since 01.09.2010 till date of issue of the show cause notice whereas the Plaintiff was regularly doing his duties and reporting to his immediate reporting head Mr. Rohit Gandhi (AVPSTG Int. Ltd.) either by making calls or sending SMS's to him. The plaintiff had a field job and right from the date of joining and starting work of the organization there is no provision of entering any attendance at any particular office. The Plaintiff has sent daily activity report till 12.10.2010. It is stated that whenever the Plaintiff was not in the field he was called for the personal meetings at head office at Gurgaon and the Plaintiff use to go there whenever so called.
7. It is the grievance of the Plaintiff that he has been regular on his job till 12.10.2010 when he was abruptly called by Mr. Rohit Suit no.124/11 Page 3 of 17 Ashutosh Kumar Vs. STG International Ltd.
Gandhi (AVPSTG Int. Ltd.) to discontinue service and not to come to office. It is stated that one of the staff of the company named Mrs. Alka Kaul had even threatened him to finish his career by putting false allegations. As a result, the plaintiff was mentally harassed and forced to discontinue his service for reasons best known to the defendant.
8. It is further stated that the Plaintiff gave reply dated 16.10.2010 to the show cause notice of the company apart from having sent emails. The Plaintiff was not given the earned salary for the month of September, 2010 till October, 2010 and as such an amount of Rs.39,975/ (Rupees Thirty Nine Thousand Nine Hundred Seventy Five Only) as salary plus interest/charges is payable by the Defendant to the Plaintiff. It is further stated by the Plaintiff that the Defendant has terminated his services w.e.f. 01.09.2010 vide termination letter dated 08.11.2010 without giving any reasonable and justified cause. The Plaintiff gave registered notice dated 28.10.2010 to the defendant for payment of salary of Rs.39,975/ (Rupees Thirty Nine Thousand Nine Hundred Seventy Five Only) vide registered/A.D. and courier which was duly received by the Defendant but was not replied to by the Defendant.
9. It is the grievance of the Plaintiff that on 12.10.2010 the Defendant levelled false allegations through a show cause notice on the Plaintiff and under those false allegations the Defendant terminated the services of the Plaintiff, vide letter dated 08.11.2010 w.e.f. 01.09.2010 without paying his earned Suit no.124/11 Page 4 of 17 Ashutosh Kumar Vs. STG International Ltd.
salary for one month and twelve days i.e. September 1st to October 12th. The show cause notice was properly replied and well explained to the various authorities of the company vide e mail dated 15.10.2010 and personally on 16.10.2010. But the Defendant was adamant to terminate the Plaintiff saying that his explanation was not satisfactory.
10.Pursuant to the service of summons, the Defendant appeared and filed its written statement. At the foremost, the defendant has averred that the plaintiff has not approached this court with clean hands since the plaintiff was regular absentee from his duty without seeking permission to leave or intimating the defendant. Therefore, the plaintiff is not entitled for salary for the period of unauthorized leave since September, 2010 and a show cause notice was issued to the plaintiff on 12.10.2010.
11.It is further averred that the performance of the plaintiff was neither good nor up to the standard as per his post. The plaintiff was neither competent nor worked diligently and uses to disobey the instructions of his seniors even after repeated warnings. The senior officers of the plaintiff were not satisfied with his performance and most of the calls as per the reports of the plaintiff were false and fabricated. The plaintiff has furnished wrong information to his superiors and was totally unsuccessful in getting any business for the company. The reports submitted by the plaintiff were found to be false and fabricated on investigation.
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12.It is not denied that the plaintiff was appointed as Territory Manager with the monthly net salary of Rs.26,400/ (Rupees Twenty Six Thousand Four Hundred Only). The defendant has denied the rest of the averments made in the plaint. Hence, prayed for the dismissal of the present suit.
13. The plaintiff filed replication to the written statement of the defendant whereof denying that he was not the regular absentee from his duty without seeking permission to leave or without intimating to the defendant. The plaintiff denied the averments made in the written statement of the said defendant and simultaneously reiterated and reaffirmed the contents of the plaint.
14.On the basis of the pleadings of the parties, Ld. Predecessor framed following issues, vide order dated 02.11.2011:
1. Whether the plaintiff has approached the court with unclean hand? OPD
2. Whether the termination of services of the plaintiff was motivated, mala fide, stagmatic and illegal? OPP
3. Whether the plaintiff is guility of misconduct and dereliction of duty? OPD
4. Whether the plaintiff is entitled to the relief of recovery of Rs.39,975/ or any amount? OPP
5. Whether the plaintiff is entitled to interest as prayed for? OPP
6. Relief
15.The plaintiff examined himself as PW1 and another employee of the defendant company who joined the company with him on the same day and designation Mr. Amit Kumar Sinha as PW2. PW1 has exhibited the offer letter of appointment dated Suit no.124/11 Page 6 of 17 Ashutosh Kumar Vs. STG International Ltd.
22.04.2010 as Ex.PW1/1, appointment letter dated 01.05.2010 as Ex.PW1/2, payment details through cheques given by the defendant to the plaintiff/PW1 as Ex.PW1/3, payment for the month of August, 2010 vide cheque No.201848 paid to the plaintiff/PW1 in his account in the Kotak Mahindra Bank, Vasant Vihar Branch, Delhi dated 28.09.2010 as Ex.PW1/4, show cause notice dated 12.10.2010 as Ex.PW1/5, reply to the said show cause dated 16.10.2010 as Ex.PW1/6, entry register of visitor's pass filed by the defendant company as Ex.PW1/6A, termination letter dated 08.11.2010 as Ex.PW1/7, legal notice dated 28.10.2010 as PW1/8 and its postal receipts as Ex.PW1/9 and Ex.PW1/10, respectively. PW1 has also relied on the daily status report sent by the deponent for generating business of the defendant company as MarkA and mobile telephone calls on the mobile of superior officials of the company and telephone/mobile bills during the period of work w.e.f. 03.05.2010 to 12.10.2010 as MarkB. PW2 relied on his appointment letter dated 01.05.2010 as Ex.PW2/1 and his resignation letter as Ex.PW2/2.
16.The defendant examined its manager Mr. Jai Deep Sinha as DW1 and relied on the show cause notice dated 12.10.2010 exhibited as Ex.PW1/5, termination letter dated 08.11.2010 already exhibited as Ex.PW1/7, visitor's register already exhibited as Ex.PW1/6A.
17.I have heard the Ld. Counsel for the parties and have given due Suit no.124/11 Page 7 of 17 Ashutosh Kumar Vs. STG International Ltd.
consideration to the rival contentions of the parties and have carefully perused the record.
ISSUE NO. 1:
18. The question to be answered is as to whether the plaintiff approached this court with unclean hands. The onus to prove this issue was on the defendant.
19. Apart from making a bald statement, the defendant has not been able to show as to how it claims that the plaintiff has come to the court with unclean hands. In fact, not only the plaint but even the statement of the plaintiff as a witness discloses all material facts. So much so, the documents relied upon by the defendant are produced by the plaintiff himself. So, this issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 2 & 320. The question to be answered is as to whether the termination of services of the plaintiff was motivated, mala fide, stigmatic and illegal and whether the plaintiff is guilty of misconduct and dereliction of duties.
21.These issues can be taken up together for consideration as they are overlapping and same evidence need to be taken into consideration while deciding both these issues.
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22.In the first instance, it has to be kept in mind that the plaintiff was appointed in a nonworkmen category in a private sector enterprise and therefore his services are not regulated by the provisions of Industrial Dispute Act, 1947 or any other Industrial law. The appointment is contractual in nature and therefore, the terms and conditions stipulated in the appointment letter will govern the field i.e. Annexure A and B of the appointment letter (Ex.PW1/2). Annexure A outlines various kinds of emoluments to which the plaintiff was entitled to and Annexure B enumerates terms and conditions of the appointment in detail. Following terms are relevant for our purpose:
"You will report to the Vice PresidentBusiness Development office and carry out the functions assigned to you. Your place of work will be Chennai, or any other place which management may decide from time to time. In addition to your specific job responsibilities, you may be called upon to carry out specific assignments for the Senior Management.
Terms, Termination & Notice Period Both the staff member and the Company shall be entitled to terminate the staff member's employment by giving 24 hours prior notice till Probation or compensation equivalent thereof and; shall be entitled to give prior notice of minimum period of one (1) month after confirmation or compensation equivalent thereof (then applicable onemonth basic pay of the staff member) without assigning any reasons thereof."
23.A conjoint reading of these terms would disclose that the services of a probationer could be terminated by giving 24 hours Suit no.124/11 Page 9 of 17 Ashutosh Kumar Vs. STG International Ltd.
prior notice and in case of a confirmed employee, it had to be one month prior notice on either side. There are certain exceptions to this clause provided therein with which we are not concerned. Such a termination is to be treated as termination simpliciter. However, the defendant had reserved with itself right to terminate the service of the plaintiff under certain circumstances. These are those situations where some specified wrong is committed by the plaintiff, like, breach of terms, rules and regulation, unauthorized absence, misconduct, moral turpitude etc. such a termination will not be innocuous or simpliciter, but stigmatic in nature. Therefore, before invoking this clause, principles of natural justice need to be followed viz. giving show cause notice with opportunity to submit reply thereto as well as personal hearing if demanded by the noticee.
24.The instant case is not a case of termination simpliciter. The defendant at the same time gave show cause notice (Ex PW 1/5). The plaintiff even gave reply thereto which was considered before terminating the services of the plaintiff. Thus, procedural requirements stand fulfilled. The moot question is as to whether the plaintiff is guilty of dereliction of duty and has committed misconduct warranting such an action on the part of the defendant?
25. In the show cause notice two acts of misconduct or dereliction of duty are attributed which are as follows:
"1. You have been irregular to attend office. You have not been attending office since 1st Suit no.124/11 Page 10 of 17 Ashutosh Kumar Vs. STG International Ltd.
September, 2010 without information, thereby unauthorised absenting your self beyond a period of 7 calender days in violation of Rules and Regulations of the company.
2. The nature of you job is to get the business for the company. The reports that you have submitted to your immediate Manager, are not true and most of your visits are not actual. Most of your calls as per report have been verified and found false. You have misinformed the company and thereby committed acts of misconduct in violation of Rules and Regulations of the company."
26.In nutshell, the allegations pertain to unauthorized absence for more than seven days, and giving false information about his visits and making false calls.
27.The plaintiff in his reply (Ex. PW1/6) refuted these allegations by submitting that he had been visiting the territories assigned to him and was giving prior information to his immediate reporting head by making a call or sending SMS to him. He was also been sending reports of his visits which he claimed to be true.
28.From the aforesaid, it becomes clear that everything depends on the question as to whether the plaintiff in fact visited the territories and met the persons as claimed by him. If answer to this question is in the affirmative then he was not absent, his calls or SMSs were not false and his reports were true. On the other hand, if he did not visit those territories, all allegations leveled against him would stand substantiated.
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29.Significantly, in his reply (Ex. PW1/6) he has stated as follows to justify his version :
"During my period all the reports send by me are actual and true as per my knowledge. My Remarks and feedbacks about the clients and visits are true and are without any manipulation. I have never misinformed the company and not done any act which questions my dignity, integrity and loyalty to the company. I have the complete list of visits with me. I have the concerned persons Visiting cards also. Besides that I have the copies of some proposal also which has been sent to the college authorities after my meetings with them. Whatever has been said above is true to the best of my knowledge and I am ready to produce the supporting documents as and whenever required."
30.However, the plaintiff has not produced any such documents. At the same time, even the defendant has not produced any material to show what kind of verification was done from which the defendant concluded that the information given by the plaintiff about his visits was false.
31.In the absence of any evidence from both sides, it becomes difficult to hold whether the services of the plaintiff were terminated with motivation or with mala fide or he was guilty of misconduct or not. In any case, I am of the opinion that in so far as finding on issue No.2 & 3 are concerned, it has no relevance to the outcome of the present case. Even if I presume that the termination was invalid, the defendant is not asking any relief of damages or any other consequential relief. On the Suit no.124/11 Page 12 of 17 Ashutosh Kumar Vs. STG International Ltd.
other hand, even if I presume that the termination was valid, so far as the plaintiff was in service as on 12.10.2010 is not in dispute. The entire dispute is as to whether the plaintiff attended office since 01.09.2010 till 12.10.2010 or not. As per the plaintiff he attended the office and he is claiming salary for the same. As per the defendant, the plaintiff did not attend the office. Therefore, leaving these issues as it is on the basis of the evidence I have discussed so far, I proceed to determine issue No.4 which is the bone of contention in the present case.
ISSUE NO.4.
32.The question to be decided is as to whether the plaintiff is entitled to the relief of recovery of Rs.39,975/ (Rupees Thirty Nine Thousand Nine Hundred Seventy Five Only) or any amount.
33.While deciding the issue No.2 & 3 above, I have already observed that the plaintiff has not produced any document which he claims to be in his possession in his reply to the show cause notice dated 12.10.2010 Ex.PW1/6 i.e. complete list of visits, concerned persons visiting cards, copies of proposal sent to college authorities. On the other hand, the defendant has also not produced any document to show that the claim of the plaintiff that he visited the clients, met them, sent reports on the basis of those meetings and therefore he attended the duties is false. No doubt the defendant has stated that on verification it Suit no.124/11 Page 13 of 17 Ashutosh Kumar Vs. STG International Ltd.
is found to be false. However, what kind of verification was done on the basis of which such a claim of the plaintiff was false has not been stated at all. Apart from bald assertion that the claim of the plaintiff is false, no evidence is produced on record. Therefore the situation is where both the parties have not led any evidence to prove their respective claims.
34.What follows from the above is that it is not in dispute that the defendant had given show cause notice to the plaintiff on 12.10.2010 that means he was in service on 12.10.2010. After this show cause notice his services were terminated vide termination order/letter dated 08.11.2010 but w.e.f. 01.09.2010. However, such a termination cannot be done retrospectively. It has to take effect, if at all, from the date of termination order/letter. Therefore, this termination can be made effective only w.e.f. 08.11.2010. After the service of show cause notice on 12.10.2010 no work was taken from the plaintiff, in any case the plaintiff has not asked any salary from 12.10.2010 to 08.11.2010 and therefore, that period is inconsequential.
35. What follows is that the plaintiff was in service from 01.09.2010 to 12.10.2010. When he was in service he is entitled to salary in the normal course. The salary can be denied to him only if the employer proves that the plaintiff has not attended the office or has not attended to the duties assigned to him and was absent. Therefore, the onus was on the defendant Suit no.124/11 Page 14 of 17 Ashutosh Kumar Vs. STG International Ltd.
and for nonproduction of any evidence, the defendant has to bear the consequence. Since the plaintiff was in service till 12.10.2010 and he had submitted his reports of various visits etc. and had given calls and send SMSs stating where he was going on a particular day. The plaintiff has placed reliance on the visitor's entry register placed by the defendant company on record showing that he attended Gurgaon office on 04.10.2010 and 12.10.2010 as Ex.PW1/6A. In such a scenario where employer says that all these are false it was for the employer to prove the same in order to deny salary to the plaintiff. As mentioned above the defendant has not produced any evidence and therefore for nonproduction of evidence on either side, it is the defendant which has to suffer the consequence. It is stated at the cost of repetition that in the normal course when it is accepted that the plaintiff was in service and according to the plaintiff that he attended to his duties, he would be entitled to salary unless the other side proves to the contrary.
36.In view of the aforesaid, I am of the opinion that the plaintiff is entitled to salary for the month of September, 2010 and for the days he worked in the month of October, 2010 i.e. Rs.39,975/ which is claimed by him. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO.5
37.The question to be answered is as to whether the plaintiff is Suit no.124/11 Page 15 of 17 Ashutosh Kumar Vs. STG International Ltd.
entitled to interest as prayed for.
38.I have already held that the plaintiff is entitled to recover an amount of Rs.39,975/ (Rupees Thirty Nine Thousand Nine Hundred Seventy Five Only) from the defendant and the defendant wrongly withheld the said amount. Hence, the plaintiff is entitled to interest on the said amount. However, no pre suit interest has been claimed by the plaintiff. The plaintiff is therefore, entitled to pendente lite and future interest.
39.Since the present matter pertains to a commercial transaction, the end of justice would be met if the plaintiff is awarded pendente lite and future interest @ 9% per annum on the principle sum adjudged from the date of the institution of the suit till the realization.
RELIEF
40. In these facts and circumstances, I, therefore, hold that the plaintiff is entitled for an amount of Rs.39,975/ (Rupees Thirty Nine Thousand Nine Hundred Seventy Five Only).
41. The suit is therefore decreed in favour of the plaintiff and against the defendant for an amount of Rs.39975/ (Rupees Thirty Nine Thousand Nine Hundred Seventy Five Only) along with pendente lite and future interest @ 9% per annum on the principle sum adjudged from the date of the institution of the suit till the date of realization. The plaintiff is also entitled for Suit no.124/11 Page 16 of 17 Ashutosh Kumar Vs. STG International Ltd.
costs of the suit from the defendant. Decree Sheet be prepared accordingly. File be consigned to the record room thereafter.
Announced in the open (SHREYA ARORA MEHTA)
Court on 23.05.2013 CIVIL JUDGE1 (SOUTH DISTRICT)
(Judgment contains 17 pages.) SAKET COURTS, NEW DELHI
Suit no.124/11 Page 17 of 17