Delhi District Court
Shri Krishna Kumar Sirohi vs M/S. Vihaan Networks Limited on 14 February, 2023
DLND010007182013
IN THE COURT OF ADDITIONAL DISTRICT JUDGE- 01,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Presided over by :- MS. VIJETA SINGH RAWAT (DHJS)
CS No. 57842/16
Shri Krishna Kumar Sirohi
S/o Sh. Rajpal Singh Sirohi,
R/o House no.682, Sector-23,
Gurgaon, Haryana-122017
......... Plaintiff
Versus
M/s. Vihaan Networks Limited
A Company incorporated under
The Companies Act, 1956 having
its registered office at:
A-60, Naraina Industrial Area,
Phase-I, New Delhi
Also at
21B, Sector-18,
Udyog Vihar, Gurgaon-122015
........ Defendant
Suit presented On : 13.05.2013
Arguments Concluded On : 12.01.2023
Judgment Pronounced On : 14.02.2023
CS no. 57842/16
Sh. Krishna Kumar Sirohi VS. M/s. Vihaan Network Ltd Page no. 1 of 26
JUDGMENT
1. This is a suit for recovery of Rs.99,76,244/- alongwith pendente lite and future interest @ 12% per annum by the plaintiff who is the ex-employee of the defendant.
THE PLAINT
2. The defendant company is engaged in the business of developing, manufacturing and exporting telecommunication relating equipments as well as providing technical services to the domestic and international telecommunications companies. The plaintiff was appointed as the Chief Technology officer by M/s. India Mobility Research Pvt. Ltd. vide appointment letter dated 21.10.2004. After some months, due to some arrangement between the defendant company and M/s. India Mobility Research Pvt. Ltd., the salaries, perks, benefits and other allowances became payable by the defendant company. The plaintiff successfully completed all tasks assigned to him, effectively and sufficiently and also, never violated the terms of the service contract. Accordingly, the plaintiff was given timely increase in monthly remuneration on 01.09.2006, 21.05.2008 and 01.07.2010. As the Chief Technology Officer, the plaintiff was instrumental in developing various telecommunication technologies and products out of which, the most remarkable is the worlds most energy efficient Rural Mobile Communication Technology. The plaintiff was entitled to Performance Linked Incentive (PLI) which was not cleared on time. As per e-mail CS no. 57842/16 Sh. Krishna Kumar Sirohi VS. M/s. Vihaan Network Ltd Page no. 2 of 26 dated 29.08.2011 by the HR Department of the defendant company, on a query e-mail of even date, it was informed to the plaintiff that PLI for the period April 2008 to March 2009, April 2009 to March 2010 and April 2010 to March 2011 was due and also, that as per the plaintiff, the PLI for the period April 2011 to September 2011 is also due tantamounting to Rs.45,00,000/-. The plaintiff therefore, on several occasions requested Sh. Rajiv Mehrotra, CEO of the defendant company to clear the dues. Since the plaintiff was in urgent need of funds, on 01.09.2011, he mailed Sh. Rajiv Mehrotra requesting for clearance of dues but the defendant company delayed in making payment for some rhyme or reasons. When the plaintiff was actively demanding the PLI dues, his monthly compensation for September 2011, was also not paid. Sh. Rajiv Mehrotra, CEO of the defendant company informed the plaintiff on 11.10.2011 that the same was delayed due to financial difficulties. Again, vide e-mail dated 13.10.2011 to the defendant company, through its Sh. Rajiv Mehrotra CEO, disbursement of some portion of PLI was sought. Sh. Rajiv Mehrotra, CEO of the defendant company agreed to release the same by December 2011. However, the same was not released. Both the PLI dues and salary of the plaintiff were withheld. Even Sh. Rajiv Mehrotra, CEO of the defendant company did not meet the plaintiff to resolve the issue. Thereafter, the plaintiff was shocked to learn that unilaterally, Sh. Rajiv Mehrotra, CEO of the defendant company had reduced the salary of the plaintiff which was protested vide an e-mail dated 19.10.2011. It was responded to on the same day. Another e- mail 20.10.2011 was sent to the defendant company for releasing payment. Once again, the dues were not cleared. Therefore, on CS no. 57842/16 Sh. Krishna Kumar Sirohi VS. M/s. Vihaan Network Ltd Page no. 3 of 26 11.11.2011, the plaintiff resigned from the defendant company. Vide the resignation letter, the plaintiff gave the options of either serving for three months of notice period or sought immediate discharge w.e.f. 14.11.2011. Considering that a farewell party was organized on 15.11.2011, the second option was exercised by the defendant company. Again on 19.11.2011, the defendant company was requested for full and final settlement of the dues of the plaintiff. In the meanwhile, the plaintiff continued to give his valuable inputs to the defendant company till March 2012 and also kept demanding his perks and benefits. Finally on 21.02.2012, an e-mail was received from the defendant company for settlement of dues which amounted to denial of many entitlements being claimed by the plaintiff. The plaintiff has strongly denied the assertion by the defendant in the mail that the resignation had been offered on 31.08.2011 and not in the month of November, 2011. The defendant did not reply to the e-mails/ calls made by the plaintiff/ demanding his dues. A letter dated 07.06.2012, was sent by registered post to Sh. Rajiv Mehrotra, CEO of the defendant company demanding Rs.86,45,952/- alongwith annexures but it was not replied. Despite receipt of the letter, the dues were not cleared. Again on 11.08.2012, the plaintiff sent an e-mail to the defendant when it noticed that his income tax which was deducted was at a higher amount but to no avail. So, a legal notice dated 01.09.2012 was issued which was duly served and replied to on 01.10.2012. The defendant denied that there were any dues and as such, the present suit came to be filed seeking recovery of Rs.99,76,244/-. The same are as follows:
CS no. 57842/16Sh. Krishna Kumar Sirohi VS. M/s. Vihaan Network Ltd Page no. 4 of 26 Sr. No. Particulars Amount 1 Pending monthly accumulated Rs.2,38,908/-
reimbursements 2 Earned Leave encashment Rs.3,95,010/- 3 Gratuity Rs.7,96,341/-
Number of years worked in the defendant company service (21.10.2004 to 15.11.2011) is 7 years 4 Pending salary (from 01.09.2011 to Rs.12,34,406/-
15.11.2011) for 2.5 months at Rs.4,93,762/- per month 5 Notice period liability on the Rs.14,81,287/-
defendant company for 3 months of notice period at Rs.4,93,762/-
6 Pending variable salary (PLI) Rs.45,00,000/-
Tenure of PLI Eligibility
unpaid amount (in Rs.)
October 08 - 9 Lakhs (Rupees
March 09 Nine Lakhs
Only)
(As Salary
Revision letter
dated 21st May
2008)
April 09 - 9 Lakhs
September 09 (Rupees Nine
Lakhs Only)
(As per salary
Revision letter
dated 21st May
2008)
October 09 - 9 Lakhs
March 10 (Rupees Nine
Lakhs only)
(As per salary
CS no. 57842/16
Sh. Krishna Kumar Sirohi VS. M/s. Vihaan Network Ltd Page no. 5 of 26
Revision letter
dated 21st May
2008)
October 10 - 9 Lakhs
March 11 (Rupees Nine
Lakhs Only)
(As per salary
Revision Letter
dated 1st July
2010)
April 11 - 9 Lakhs
September 11 (Rupees Nine
Lakhs only)
(As per salary
Revision letter
dated 1st July
2010)
Principal amount as on 15.11.2011 Rs.86,54,952/-
Interest @12% p.a. till 25.02.13 Rs.13,30,292/-
Total Rs.99,76,244/-
WRITTEN STATEMENTS FILED ON BEHALF OF THE DEFENDANT
3. By way of the written statement, employment of the plaintiff is not denied. However, preliminary objection has been taken that the suit is barred by limitation as the claim of PLI is w.e.f. October 2008. As regards demand of PLI, it is stated that the same is not a matter of right and is dependent upon individual, group and company performance and as the management decides from time to time. It is also stated that the plaintiff has not been diligent in discharging his duties as Chief Technology Officer of the defendant company, as a result of CS no. 57842/16 Sh. Krishna Kumar Sirohi VS. M/s. Vihaan Network Ltd Page no. 6 of 26 which he had neither achieved the tasks/ projects entrusted to him causing huge losses to the defendant company and so, the plaintiff is not entitled to PLI. It is also stated that the e-mail dated 29.08.2011 merely provides the details of the potential PLI that could have been earned by the plaintiff depending upon above mentioned factors. As regards, the demand of withheld monthly salary, it has been stated that the resignation as given by the plaintiff on 31.08.2011, itself and so, there are no dues payable. The claim of earned leave encashment has been resisted on the ground that it is beyond the agreement between the parties. As regards notice period liability, it is stated that the same is misconceived as resignation was already given 31.08.2011 and even otherwise, two options were given by the plaintiff and he did not serve for the notice period. As regards gratuity, it is stated that the same is misconceived as the defendant was not in employment for the entire period as alleged in the plaint for which the gratuity has been sought. It has also been denied that Sh. Rajiv Mehrotra, CEO of the defendant company had agreed to release the dues of the plaintiff or any part thereof or that, he had refused to meet the plaintiff. As regards the farewell being organized on 15.11.2011, it is stated that the same was done at request of the plaintiff so that no wrong message was conveyed to the junior employees.
REPLICATION
4. By way of replication, it is denied that the suit is barred by limitation. Reliance has been placed upon email dated 29.08.2011 whereby the HR Department of the defendant CS no. 57842/16 Sh. Krishna Kumar Sirohi VS. M/s. Vihaan Network Ltd Page no. 7 of 26 admitted that PLI for the April 2008 to March 2009, April 2009 to March 2010 and April 2010 to March 2011 has not been remitted. Rest of the contents of the plaint are reiterated.
ISSUES
5. Vide order dated 09.01.2015 following issues were framed:
(i) Whether the present suit filed by the plaintiff is barred by limitation? OPD
ii) Whether the defendant is liable to pay the plaintiff any dues pursuant to employment of the plaintiff with the defendant? If so, how much. OPP
(v) Relief.
PLAINTIFF EVIDENCE
6. To prove its case, the plaintiff company examined the following witnesses.
6.1 PW-1, the plaintiff himself, tendered his evidence by way of affidavit Ex. PW-1/A alongwith following documents:
Sr. No. Documents Exhibited as
1 Letter of appointment dated 21.10.2004 Ex. PW-1/1
2 Letter of salary revision dated Ex. PW-1/2
01.09.2006
3 Letter of salary revision dated Ex. PW-1/3
21.05.2008
4 Letter of salary revision dated Ex. PW-1/4
01.07.2010
5 Salary slip issued by the defendant Ex. PW-1/5
company to the plaintiff for the month
of August 2006
CS no. 57842/16
Sh. Krishna Kumar Sirohi VS. M/s. Vihaan Network Ltd Page no. 8 of 26
6 Salary slip issued by the defendant Ex. PW-1/6
company to the plaintiff for the month
of September 2006
7 Salary slip issued by the defendant Ex. PW-1/7
company to the plaintiff for the month
of September 2007
8 Estimation tax computation sheet Ex. PW-1/8
prepared by the defendant for 2011-2012 (colly.) 9 Slip of reimbursement availed by the Ex. PW-1/9 plaintiff for the month of March, 2011 10 Slip of reimbursement availed by the Ex. PW-1/10 plaintiff for the month of April, 2011 11 Slip of reimbursement availed by the Ex. PW-1/11 plaintiff for the month of October, 2011 12 Print out of e-mail dated 29.08.2011 sent Ex. PW-1/12 by the plaintiff alongwith reply to the defendant 13 Print out of e-mail dated 05.09.2011 sent Ex. PW-1/13 by the plaintiff to Mr. Rajiv Mehrotra regarding PLI disbursement 14 Print out of e-mail dated 13.10.2011 sent Ex. PW-1/14 by the plaintiff for salary for the month of September 2011 15 Print out of e-mail dated 21.10.2011 sent Ex. PW-1/15 by the plaintiff for conducting a meeting with Mr. Rajiv Mehrotra to sort out the issue 16 Print out of e-mail dated 24.10.2011 sent Ex. PW-1/16 CS no. 57842/16 Sh. Krishna Kumar Sirohi VS. M/s. Vihaan Network Ltd Page no. 9 of 26 by the plaintiff to the defendant company 17 Resignation letter sent by the plaintiff to Ex. PW-1/17 the defendant company on 11.11.2011 18 Print out of e-mail dated 15.11.2011 sent Ex. PW-1/18 by the HR department of the defendant company to many employees to attend the farewell party of the plaintiff.
19 Print out of e-mail dated 18.11.2011 Ex. PW-1/19 regarding clearance the full and final settlement dues of the plaintiff 20 Print out of e-mail dated 29.11.2011 Ex. PW-1/20 regarding handing over of all the article to the defendant company 21 Communication of leave entitlement of Ex. PW-1/21 the plaintiff 22 Print out of e-mail dated 07.12.2011 Ex. PW-1/22 regarding clearing all dues of the plaintiff 23 Print out of e-mail dated 28.12.2011 Ex. PW-1/23 regarding meeting of plaintiff with Sh.
Rajiv Mehrotra, CEO of the defendant company 24 Print out of e-mail dated 30.12.2011 Ex. PW-1/24 regarding perk & benefits including Earn Leaves and Gratuity sent by the plaintiff 25 Print out of e-mail dated 01.12.2012 Ex. PW-1/25 sent by the plaintiff seeking settlement CS no. 57842/16 Sh. Krishna Kumar Sirohi VS. M/s. Vihaan Network Ltd Page no. 10 of 26 26 Print out of e-mail dated 21.02.2012 Ex. PW-1/26 sent by the plaintiff requesting the defendant to finalise the settlement dues correctly 27 Letter dated 07.06.2012 sent by the Ex. PW-1/27 plaintiff to the defendant company regarding not honouring the commitment on behalf of the defendant company.
28 Print out of e-mail dated 12.06.2012 Ex. PW-1/28 stating the outstanding dues payable to the plaintiff 29 Print out of e-mail dated 11.08.2012 Ex. PW-1/29 sent by the plaintiff for clearing the mandatory dues like gratuity 30 Print out of e-mail dated 11.08.2012 Ex. PW-1/30 regarding deduction of higher income tax from the plaintiff 31 Legal notice dated 01.09.2012 Ex. PW-1/31 32 Reply to the legal notice sent by the Ex. PW-1/32 defendant dated 01.10.2012 He was duly cross-examined by the Ld. Counsel for the defendant company.
6.2 Sh. Nitish Jain (ex-employee of the defendant company) stepped into witness box as PW-2 to prove that he was given earned leave encashment when he left the defendant company. He tendered his evidence by way of affidavit as PW-2/A in CS no. 57842/16 Sh. Krishna Kumar Sirohi VS. M/s. Vihaan Network Ltd Page no. 11 of 26 evidence alongwith following documents:
Sr. Documents Exhibited as No.
1. Copy of relieving letter dated 04.04.2012 Ex. PW-2/1 2 Copy of full and final settlement Ex. PW-2/2 statement issued by the defendant He was also duly cross-examined by the Ld. Counsel for the defendant.
DEFENDANT EVIDENCE
7. On behalf of the defendant company, Ms. Tripti Goyal was examined as DW-1 and she tendered her evidence by way of evidence Ex. DW-1/A. She was duly cross-examined by Ld. Counsel for the plaintiff.
FINAL ARGUMENTS
8. Final arguments have been advanced by Sh. K.V. Balakrishna on behalf of the plaintiff and by Sh. Prantik Hazarika on behalf of the defendant. Written submissions have been filed on behalf of both the parties.
REASONING AND APPRECIATION OF MATERIAL ON RECORD
9. This Court has considered the submissions and material on record.
CS no. 57842/16Sh. Krishna Kumar Sirohi VS. M/s. Vihaan Network Ltd Page no. 12 of 26
10. At the outset, it is essential to deal with the argument on behalf of the plaintiff that there is no credible defence on behalf of the defendant considering that neither the contents of the written statements nor the affirmations of affidavit Ex. DW-1/A are supported with any Board Resolution in favour of the authorized representatives Sh. Suraj Agarwal (who filed the written statement) and Ms. Tripti Goyal (who was examined as DW-1) on behalf of the defendant, placing reliance upon M/s. Nibro Ltd. vs. National Insurance Co. Ltd. Suit no.933/83, decided on 06.03.1990.
11. In M/s. Nibro Ltd. (Supra), it has been held as under:
'....22. On the analysis of the judgments, it is clear that Order 29 Rule I of the Code of Civil Procedure does not authorise person mentioned therein to institute suits on behalf of the Corporation. It only authorise them to sign and verify the pleadings on behalf of the Corporation.
23. In my view, the provision of Companies Act, 1956 and particularly Sections 14, 26, 28 Schedule I, Table A and Section 291 are very clear.
24. It is well-settled that under Section 291 of the Companies Act except where express provisions is made that the power of a company in respect of a particular matter are to be exercised by the company in general meeting- in all other cases of Board of Directors are entitled to exercise all its powers. Individual directors have such powers only as are vested in them by the Memorandum and Articles. It is true that ordinarily the Court will not unsuit a person on account of technicalities. However, the question of authority to institute a suit on behalf of a company is not a technical matter. It has far-reaching effects. It often affects policy and finances of the company. Thus, unless a power to institute a suit is specifically conferred on a particular director, he has no authority to institute a suit on behalf of the company. Needless to say that such a power can be conferred by the Board of Directors only by passing a resolution in that regard.
25. Chapter IV of the Delhi High Court (Original Side) Rule deal with the question of presentation of CS no. 57842/16 Sh. Krishna Kumar Sirohi VS. M/s. Vihaan Network Ltd Page no. 13 of 26 suits. Under the Rule, suit can be presented by duly authorised agent or by an advocate duly appointed by him for the purpose. This authorization in my view, in the case of a company can be given only after a decision to institute a suit is taken by the Board of Directors of the company. The Board of Directors may in turn authorise a particular director, principal officer or the secretary to institute a suit.'
12. During cross-examination, DW-1 stated as under:
Q.2 Have you produced any document reflecting that you are an authorised representative of the defendant company?
Ans. The board resolution has been placed on record.
Q.3 I put it to you that no board resolution authorised as representative of the defendant company has been placed on record. What do you have to say? Ans. So far as I remember it has been placed. Q.4 Have you filed any minutes of meeting of the so called board resolution?
Ans. It is a matter of record.
Q.5 I put it to you that you have not filed the minutes of meetings. What do you have to say? Ans. It is a matter of record.'
13. However, perusal of record shows that no Board Resolution in favour of the witness DW-1 or authorizing Sh. Suraj Agarwal to file the written statement has been adduced in evidence or proved. The contents of the written statement are supported by affidavit of Sh. Suraj Agarwal who merely states that the is the authorized representative. He has not verified and affirmed the contents of the written statement either as its secretary or director or principal officer who is able to depose on the facts of the case. Rather, the affidavit clearly states that his knowledge of the matter is derived from the records. Similarly, there is no authority from the defendant company backing the deposition of Ms. Tripti Goyal as DW-1. Thus, this Court is constrained to hold that neither the written statement on behalf CS no. 57842/16 Sh. Krishna Kumar Sirohi VS. M/s. Vihaan Network Ltd Page no. 14 of 26 of the defendant company nor the evidence of DW-1 can be read. Hence, all that remains is the plaintiff's evidence to be appreciated.
ISSUEWISE FINDINGS A) Whether the present suit filed by the plaintiff is barred by limitation? OPD (Issue no.1)
14. The onus to prove the issue is upon the defendant company.
14.1 It is the case of the defendant company that the PLI which has been claimed for the period October, 2008 to March 2009, April 2009 to September 2009, October 2009 to March 2010, October 2010 to March 2011 and April 2011 to September 2011 is barred by limitation. Per contra, much emphasis has been laid by the plaintiff upon Ex. PW-1/12 as an admission on behalf of the defendant company that the PLI disbursement for the period October 2008 to March 2009, April 2009 to March 2010 and October 2010 to March 2011 is pending. Also, the plaintiff has further deposed that for the period April 2011 to September 2011, the PLI is to be disbursed though not mentioned in mail Ex PW-1/12.
14.2 As per records, the suit has been filed on 13.05.2013. Therefore, the demands prior to 14.05.2010 would be barred by limitation. E-mail Ex PW-1/12 is put forth as an acknowledgement of dues of PLI. (The admissibility of the same shall be discussed later). However, even assuming for the CS no. 57842/16 Sh. Krishna Kumar Sirohi VS. M/s. Vihaan Network Ltd Page no. 15 of 26 moment that e-mail Ex PW-1/12 is admissible, it is now to be seen whether it can be deemed to be an acknowledgement under Section 18 of The Limitation Act, 1963 (hereinafter, referred to as 'Limitation Act'). An acknowledgement of liability under Section 18 of Limitation Act has to be unequivocal and has to be made before the expiration of the limitation period.
14.3 In the considered view of this Court, for any dues which were already barred by 29.08.2011, e-mail Ex. PW-1/12 would not be of any help. As regards, the period thereafter, this Court is of the view that there is no unequivocal admission of liability towards the plaintiff and is merely reflective of the some probability to receive PLI which is dependent as already admitted by the plaintiff on performance appraisal by the management. Therefore, in the considered view of this Court any claim of PLI which has accrued before 14.05.2010 is prima-facie barred by limitation. Issue is accordingly, decided.
B) Whether the defendant is liable to pay the plaintiff any dues pursuant to employment of the plaintiff with the defendant? If so, how much. OPP
15. The onus to prove the issue is upon the plaintiff.
16. Depending on the heads under which compensation has been claimed, the Court proposes to decide the same as under:
A) Pending Salary from 01.09.2011 to 15.11.2011 for 2.5 months @Rs.4,93,762/- amounting to Rs.12,34,406/-.CS no. 57842/16
Sh. Krishna Kumar Sirohi VS. M/s. Vihaan Network Ltd Page no. 16 of 26
17. It is the case of the plaintiff that resignation was tendered only on 11.11.2011 vide Ex PW-1/17 and as reflected in e-mail Ex PW-1/18, he had been relieved on 15.11.2011 as farewell was organized on the day. Reliance has also been placed upon Ex PW-1/26 which are e-mails exchanged between the plaintiff and one Sh. Sanjay Singh Chauhan, employee of the defendant company as per which, the plaintiff has urged that the services of the plaintiff had been availed till 15.11.2011. Per contra, even though, a defence was sought to be taken that resignation had been offered verbally and accepted on 31.08.2011 and thereafter, till 15.11.2011, the plaintiff only gave consultation to the defendant company, for reasons already mentioned above are unproved. Even though, the plaintiff has in his testimony also led oral evidence qua his employment tenure, during cross- examination a specific query was put to him on 23.05.2015 during cross-examination which is as under:
'...Q. Is there any proof or document on record which can show that you are working as an employee of the defendant company from 1st September 2011 till 15th November 2011?
Ans. Communications in this regard have been filed on record.' 17.1 Thus, it becomes imperative to fall back upon the e-mail communications relied upon by the plaintiff to substantiate his position as an employee of the defendant till 15.11.2011. Even though, the defence cannot be read, the plaintiff still is required to prove his case and stand on his own legs. The plaintiff has adduced in evidence documents Ex PW-1/12 to Ex. PW-1/15, Ex.
PW-1/18 to Ex PW-1/26 and Ex PW-1/28 to Ex. PW-1/30 which are printouts of electronic records. They were required to be CS no. 57842/16 Sh. Krishna Kumar Sirohi VS. M/s. Vihaan Network Ltd Page no. 17 of 26 proved by also adducing certificate under Section 65B (4) of the Indian Evidence Act, 1872 (hereinafter, referred to as the 'Evidence Act'). However, the certificate has not been tendered in evidence. As such, placing reliance upon Arjun Panditrao Kotkar vs. Kailash Kushanrao Gorantyal & Ors. Civil Appeal Nos.2082520826 of 2017 decided on 14.07.2020, the documents Ex PW-1/12 to Ex. PW-1/15, Ex. PW-1/18 to Ex PW-1/26 and Ex PW-1/28 to Ex. PW-1/30, have not been proved and are therefore, are not admissible in evidence. Also Ex. PW-1/26 mentions that the engagement of plaintiff from 01.08.2004 till 15.11.2022 was as a consultant.
17.2 Thus, the employment of the plaintiff with defendant company beyond 31.08.2011 till 15.11.2011 has not been established and so, the claim is declined.
B) Performance Linked Incentive for the period October, 2008 to March 2009, April 2009 to September 2009, October 2009 to March 2010, October 2010 to March 2011 and April 2011 to September 2011 tantamounting to Rs.45,00,000/-
18. The plaintiff has demanded Performance Linked Incentive (PL) for the aforementioned period. However, in view of the discussion on issue no.1, this Court is of the view that any demand for Performance Linked Incentive for the period October 2008 - March 2009, April 2009 - September 2009 and October 2009- March 2010 is barred by limitation. Now, the demand will be restricted to the period October 2010 to March 2011 and April CS no. 57842/16 Sh. Krishna Kumar Sirohi VS. M/s. Vihaan Network Ltd Page no. 18 of 26 2011 to September 2011.
18.1 In this regard, it has been argued on behalf of the plaintiff that vide Ex. PW-1/12 and Ex. PW-1/13, the defendant company had acknowledged the dues on account of PLI. Further, it is stated that while resigning vide Ex. PW-1/17, the plaintiff had again demanded his legitimate PLI dues but it has not been paid. Thereafter, it has been submitted placing reliance upon PW-1/24 that the plaintiff had unblemished service record for having developed new technologies. Reliance has also been placed upon Ex. PW-1/2, Ex. PW-1/3 and Ex PW-1/4 which are revision of remuneration on performance reviews issued by the defendant company to urge that, the efficiency and outstanding performance of the plaintiff was duly acknowledged by the defendant company, itself.
18.2 Per contra, the crux of arguments on behalf of the defendant is that PLI is a variable part of the compensation structure and cannot be demanded as a matter of right. Referring to the admission of the plaintiff during cross-examination that while restructuring the PLI was reduced from Rs.24,00,000/- to Rs.18,00,000/- as per Ex PW-1/3, it has been submitted that it reflects that the performance of the plaintiff was not to the satisfaction of the management.
18.3 As per annexure of letter of appointment dated 21.10.2004 Ex. PW-1/1, the plaintiff was entitled to sales incentive per annum, on achieving projected targets of the company. Further, as per clause 2 of Ex PW-1/1, the compensation comprised of the CS no. 57842/16 Sh. Krishna Kumar Sirohi VS. M/s. Vihaan Network Ltd Page no. 19 of 26 following:
'....2. Compensation:
Your compensation package shall be divided in to three portions:
I) Annual cost to the company. (The breakup of the same is enclosed as part of this annuxure). II) Self performance linked Incentive.
III) Project Completion Incentive:
This represents the potential earnings to the employees and shall be given to him upon his achieving the assigned tasks, targets and performance deliverables. Project Completion Incentive shall be based on the level of responsibility upon an employee and the decision of the company on the quantum based on the appraisal of performance shall be final and binding upon you.
An employee is eligible for project completion incentive, provided that the concerned employee remains with the company for a minimum period of two years from joining. In case the employee leaves or is asked to leave the company before the initial period of two years, for whatever reason, he shall forfeit his right to the first year's Project Completion Incentive.' 18.4 Also, clause 4 of letter of appointment dated 21.10.2004 Ex. PW-1/1 provided as under;
'....4. Compensation Progression:
Future increase in your compensation and future prospects in the company shall entirely depend on your efficiency, hard work, regularity in attendance, sincerity, good conduct and such other relevant factors and company's performance. Such increase shall in no case be automatic, time linked and / or a matter of right and will be entirely based upon evaluation of performance and principles of positive contribution to Companies goal and objectives.' 18.5 Thus, the increase in compensation was not a matter of right and was based upon evaluation of performance and principal of positive contribution to the goals of the defendant company. Therefore, to show entitlement, the plaintiff is also required to lead cogent evidence of his contribution to the CS no. 57842/16 Sh. Krishna Kumar Sirohi VS. M/s. Vihaan Network Ltd Page no. 20 of 26 objectives of the company and meeting specific targets. On 06.05.2015, during cross-examination, the plaintiff stated as under:
'....Q. I draw your attention to Ex. PW-1/1. It put it to you that payment of compensation as mentioned in point 2(ii) thereof i.e. Mark X to X. I put it to you that was exclusively based on achieving assigned task, targets and performances deliverables thereof. Can you show the targets assign and achieve by you and the response of the company thereof.
Ans. On part of the compensation is in the form of monthly and annual components which is independent of the performance assessment. The other part of the compensation is related to the successful completion of the assigned task. As a process of performance appraisal all the assigned task and their completion status is kept in the HR records of the company. The management is obliged to inform the employee how much percentage of the variable compensation, based upon his achieved targets and the performance is agreed to be paid. It is the responsibility of the management to inform the employee that what percentage of his eligibility of variable pay is not due. In my entire career of seven years thee was o indication by the company that my performance is not found upto the mark. Based on my excellent performance my salary revision was done time to time and they are on record.
Q. I draw your attention to Ex. PW-1/12 i.e. Annexure 2 at page 12. Have you filed any document to show the milestone given to you and achieved by you for the period of present claim relates to. Ans. All the targets mentioned in Annexure-II page 12 for the year 2006 were completed and there is no claim for the year 2006 raised by me. So my pending payments relates to after 2008.
Q. Have you placed any such record for the period after 2008 as stated by you in reply to the previous question.
Ans. All the records of accomplishment of task for the period of claim have been given to the company management time to time and there has been a continues process of work assignment and appraisal. Q. I put it to you that you have not filed any such continuous process of work assignment and appraisal for the relevant period of claim?
Ans. As a practice of performance appraisal process in the company, C-level executive which includes Chief CS no. 57842/16 Sh. Krishna Kumar Sirohi VS. M/s. Vihaan Network Ltd Page no. 21 of 26 Technology Officer were not asked to fill performance self appraisal form.
Q. Have you filed any such management policy on record as stated by you?
Ans. There is no written reply in this regard but it is a matter of practice which is follow.
Q. I draw your attention to para 8 page 6 of your affidavit Ex PW-1/A. Have you filed any document in support of your claim Rs.9 lacs for the relevant period as depicted in the chart?
Ans. I have filed two of the salary revision documents i.e. Ex. PW-1/3 and Ex. PW-1/4 which includes the fact that I am eligible for 9 lacs as mentioned in the chart. My salary enhancement was 18 lacs per year i.e. 9 lacs per six months terms and both these documents are based on my performance which indicate increase in the salary.
Q. I draw you attention to Ex. PW-1/3 and Ex. PW- 1/4. Is it correct that your performance linked incentive (PLI) was reduced from 24 lacs to 18 lacs as per Ex. PW-1/3 and it remained constant at 18 lacs as per Ex. PW-1/4. I put it to you that the PLI was based on your potential and it was not fixed during the entire tenure of your service with the defendant company? Ans. As per Ex. PW-1/3 it is to be noted that my total compensation CTC is increased from 48 lacs to 72 lacs per annum based on my extra ordinary performance in the company. To make further benefit to employee the variable salary which was earlier 24 lacs which was paid only after six month and 1 year, was reduced to 18 lacs as a process of better salary structuring at C-level executive. After 2008 till the end of my tenure with the company my PLI remained 18 lacs per annum. It was changed once for better structure.
Q. Can you show any document which says that PLI was increased at any given point of time?
Ans. As per Ex. PW-1/1 my variable salary was Rs.20 lacs and as per Ex. PW-1/3 it was 24 lacs.' 18.6 Thus, on perusal of the same, it is apparent that this component of the salary was performance linked and there is no performance appraisal of the plaintiff which is available for appreciation and to reach a conclusion that the plaintiff is entitled to this claim. Therefore, the claim is denied.
CS no. 57842/16Sh. Krishna Kumar Sirohi VS. M/s. Vihaan Network Ltd Page no. 22 of 26 C) Earned Leave Encashment for Rs. 3,95,010/-.
19. On behalf of the plaintiff, a demand for the same is sought to be substantiated by reliance upon Ex. PW-1/21 which is the leave record of the plaintiff and also the testimony of PW-2.
19.1 In rebuttal, this claim has been denied on behalf of he defendant company for being beyond the service contract.
19.2 Perusal of letter of appointment dated 21.10.2004 Ex. PW- 1/1 does not reflect that the terms of employment also included earned leave encashment. Even though, the plaintiff has examined PW-2 who has adduced Ex. PW-2/2 which is his full and final settlement given by defendant company, during cross- examination he could not substantiate his stand with any policy of the defendant company. Accordingly, with the terms of employment of PW-2 not being before this Court, the policy not having been adduced in evidence and as Ex PW-1/21 being inadmissible in evidence, the plaintiff has not established his entitlement to this claim which is also beyond the terms of service contract/ letter of appointment Ex. PW-1/1.
D) Notice period liability for three months amounting to Rs.14,81,287/-.
20. Placing reliance upon clause 8(d) of letter of appointment dated 21.10.2004 Ex. PW-1/1, it has been urged that plaintiff is entitled to receive three months notice period salary which he has also claimed vide Ex. PW-1/27 and Ex. PW-1/28 and the CS no. 57842/16 Sh. Krishna Kumar Sirohi VS. M/s. Vihaan Network Ltd Page no. 23 of 26 defendant company did not deny the same. Per contra, it has been submitted on behalf of the defendant company that resignation was offered and accepted on 31.08.2011 itself and even if Ex PW-1/17 (resignation letter) is relied upon by the plaintiff, the relief cannot be granted to him in view of meaningful reading of clause 8(d) of letter of appointment dated 21.10.2004 Ex. PW-1/1.
20.1 Clause 8(d) of letter of appointment dated 21.10.2004 Ex. PW-1/1 stipulates as under:
'....8(d). On satisfactory completion of the probation period and after your confirmation in writing except for the reasons mentioned in this appointment letter, your services can be terminated by giving notice of three months or payment of Gross salary in lieu thereof on either side. However, in event of your resignation, the Company in its sole discretion will have an option to accept the same and relieve you prior to completion of the stipulated notice period of 3 months, without any pay in lieu of the notice period.
20.2 Further, letter of appointment dated 21.10.2004 Ex. PW-
1/17 states as under;
'.....I intend to serve the company for next three more months as per my current service contract and bring my ongoing tasks to a logical conclusion. I may be relieve on 10th Feb 2012. This would necessitate the payment of my last two month salary by this week-end.
In case, the company is not in position to pay my normal compensation for the three months notice period. I request company to relieve my immediately i.e. on Monday, 14th November 2011. In this case, the pending salary of last two months and other dues including PLI as part of my current compensation contract may be arranged to be paid immediately. The company decision with respect to two options of relieving should be conveyed to me by end of tomorrow (12th Nov) so that I will start exploring my alternate career option immediately after 12th November.' CS no. 57842/16 Sh. Krishna Kumar Sirohi VS. M/s. Vihaan Network Ltd Page no. 24 of 26 20.3 Thus, since the defendant has exercised the option of relieving the plaintiff immediately, as per letter of appointment dated 21.10.2004 Ex. PW-1/1 clause 8(d), the claim is not maintainable and is declined.
E) Gratuity from 21.10.2004 to 15.11.2011 amounting to Rs.7,96,341/-.
21. It has been argued on behalf of the defendant company that as per Ex. PW-1/4, the plaintiff is entitled to gratuity @Rs.1,13,763/- per annum.
21.1 On behalf of the defendant, it has merely been argued that this claim has not been given as the period of employment is under dispute.
21.2 Considering that employment of the plaintiff with the defendant company till 31.08.2011 has been established and the oral testimony of the plaintiff qua the demand of gratuity has not been traversed, the defendant company is liable to disburse the accrued gratuity amount from 21.10.2004 to 31.08.2011 which is Rs.7,96,341/- (for 6 years and 8 months).
F) Pending monthly accumulative reimbursements amounting to Rs.2,38,908/- till 31.08.2011.
22. In this regard, the plaintiff has argued that the same has been admitted by the defendant company in mail Ex. PW-1/26 while enclosing full and final settlement of the plaintiff and so, CS no. 57842/16 Sh. Krishna Kumar Sirohi VS. M/s. Vihaan Network Ltd Page no. 25 of 26 the defendant company is liable to disburse the same.
22.1 During the course of the arguments, on behalf of the defendant company, it is stated that the same shall be paid provided the plaintiff excepted full and final settlement.
22.2 Even though for reasons already mentioned above, Ex. PW-1/26 is inadmissible in evidence, yet, the oral testimony of the plaintiff qua this relief is unrebutted and hence, the defendant is liable to reimburse the aforementioned amount.
22.3 The issue is decided in favour of the plaintiff qua his entitlement for gratuity and monthly reimbursement till August 2011.
23. In view of the above discussion, the suit of the plaintiff is decreed for a sum of Rs.10,35,249/- (gratuity amount i.e. Rs.7,96,341/- + monthly reimbursement i.e. Rs.2,38,908/-) @9% with pendente lite and future interest alongwith cost.
24. Decree sheet be prepared, accordingly.
25. File be consigned to records.
Pronounced in open Court (Vijeta Singh Rawat) on 14.02.2023 Additional District Judge-01, New Delhi District, Patiala House Courts, New Delhi CS no. 57842/16 Sh. Krishna Kumar Sirohi VS. M/s. Vihaan Network Ltd Page no. 26 of 26