Delhi District Court
Suresh Kumar Sharma vs Samsung India Electronics Pvt Ltd on 30 September, 2024
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IN THE COURT OF MS. GUNJAN GUPTA
DISTRICT JUDGE-04, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
In the matter of:
CS DJ : 93/2018
SURESH KUMAR SHARMA (DECEASED)
THROUGH LEGAL REPRESENTATIVES
(i) SMT. PREMLATA SHARMA
W/o Late Sh. Suresh Kumar Sharma
(ii) SH. PRASHANT SHARMA
S/o Late Sh. Suresh Kumar Sharma
(ii) MS. ANSHITA SHARMA
D/o Late Sh. Suresh Kumar Sharma
All R/o F-9/336, Chitrakoot,
Vaishali Nagar, Jaipur,
Rajasthan. ....Plaintiffs
Versus
M/S. SAMSUNG ELECTRONICS INDIA PVT. LTD.
Registered Office :
6th Floor, DLF Centre,
Sansad Marg,
New Delhi. .....Defendant
Date of Institution : 20.09.2017
Date reserved for judgment : 25.09.2024
Date of judgment : 30.09.2024
DECISION : Partly decreed
SUIT FOR RECOVERY OF RS. 3,76,616/-
Suresh Kumar Sharma vs. M/s. Samsung Electronics India Pvt. Ltd CS DJ No. 93/2018
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JUDGMENT
1. This is a suit filed by the plaintiff against the defendant for recovery of Rs.3,76,616/- with interest @ 18% per annum.
2. CASE OF PLAINTIFF Brief facts of the case, as culled out from the plaint are that:
(i) The plaintiff was employee of defendant company appointed vide appointment letter dated 14.08.1997 for a position of 'Commercial Officer'.
(ii) Initially the plaintiff was on probation for six months however in view of the plaintiff's performance, the defendant company vide letter dated 14.02.1998 confirmed the employment of the plaintiff.
(iii) The defendant company introduced a bonus policy under the head "MBO & Bonus System. The performance incentives were to be paid to the employees as per the calculation system mentioned therein. The said bonus was mandatory as per the policy of the defendant company.
(iv) During the course of his employment, plaintiff was posted at various places such as Jammu, Lucknow, Delhi & Mumbai. During the period of employment of the plaintiff, he was promoted several times with increments in salary. The defendant also bestowed the plaintiff with numerous awards by the defendant company.
(v) In October, 2014, the defendant company nominated the plaintiff for a prestigious project in Seoul, South Korea.
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(vi) The plaintiff was heading the Mumbai Branch of the defendant company as Sr. Manger (Finance & Accounts) during which time plaintiff devised certain protocols to be implemented by the defendant company. The said protocols allowed the defendant company to save a significant portion of its revenue from taxation running into hundreds of crores. The plaintiff was a part of team responsible for obtaining a rectification order against a Central Sales Tax Assessment order as per which the demand of Rs.219.18 cr. for FY 2010-2011 was reduced to 9.59 lakhs. For this the defendant company awarded the plaintiff and 4 other team members with Samsung Cell phones on 30.07.2015. The said phones were awarded on the recommendation of Sh. Ashutosh Mahajan, Director (F & A) and approval of CFO of the company.
(vii) The defendant company on 21.08.2015 awared a certificate of excellence to its Mumbai Branch, for its contribution to the defendant company, which was as the relevant time headed by the plaintiff exclusively.
(viii) On 14.09.2015 the plaintiff was deputed for attending a meeting in Ahmedabad and to make a presentation highlighting the achievements of the Mumbai branch of defendant company for which he was applauded by the guests. The meeting was attending by high ranking officials of the defendant company including director Sh. Ashutosh Mahajan and the CFO.
(ix) In the annual compensation review dated 29.04.2015 conducted by the defendant company, the plaintiff's basic Suresh Kumar Sharma vs. M/s. Samsung Electronics India Pvt. Ltd CS DJ No. 93/2018 -4- salary was revised to Rs.94,154/-. In the said document, it was mentioned that the performance bonus would be payable to the plaintiff.
(x) The plaintiff resigned on 01.12.2015 from the post of Sr. Manager (Commercial) after serving the defendant for around 18 years. His resignation was accepted by Sh. Ashutosh Mahajan, Director Finance and Accounts vide e- mail dated 03.12.2015. The plaintiff had served the entire 3 months notice period and had also served for few extra days after the expiry of the period of notice at the request of the defendant.
(xi) On 25.02.2016 the plaintiff accessed his evaluation report for the year 2015-2016 on the Human Resource Portal and found that plaintiff was graded the lowest rating of '5' on scale of 1-5.
(xii) The plaintiff noticed that under the section of 'overall comments' in the evaluation result, it was mentioned "Resigned and being relieved in due course".
(xiii) The plaintiff brought this to the notice of the management as the plaintiff was clearly eligible for an incentive/ bonus which he had been receiving since the inception of the policy itself and which had been made part of the defendant company's contractual obligation towards its employees.
(xiv) The plaintiff was assured that the error would be rectified.
(xv) The defendant company finally relieved the plaintiff on 04.03.2016. The defendant handed over the plaintiff full Suresh Kumar Sharma vs. M/s. Samsung Electronics India Pvt. Ltd CS DJ No. 93/2018 -5- and final settlement and a certificate of employment on 19.05.2016. The plaintiff found vast discrepancy in the full and final settlement arrived at by the defendant company.
The defendant company had against its own policies omitted the performance linked component of the incentives to be paid to the plaintiff. The defendant company was required to pay certain amounts to the plaintiff under their "MBO Bonus" policy which formed an integral part of the plaintiff's terms of employment. The relevant scheme of payout applicable to the plaintiff has been reproduced below :-
Payout type Payout period Evaluation Max Payout & month Criteria MBO Annual March Once a year, 1:400% basis GPMS 2:350% rating 3:250% 4:150% 5:Nil (xvi) The MBO Incentive was paid on the basis of a grade system termed the GPMS Rating of the employee. Based on the grade awarded to the employee on scale of 1-5, the employee would get an incentive as a percentage of his basis salary. The only condition under which the employee could be denied this payout would be a rating of '5' given to him.
(xvii) Considering the past performance of the plaintiff, it would be safe to assume that there would be no difficulty in awarding the plaintiff a grade"1". The MBO Bonus Suresh Kumar Sharma vs. M/s. Samsung Electronics India Pvt. Ltd CS DJ No. 93/2018 -6- component of the plaintiff would therefore be an amount of INR3,76,616/- i.e. 400% of INR 94,154/- being the basic salary of the plaintiff.
(xviii) When this fact was brought to the notice of defendant company, no reasonable explanation was given.
Therefore, plaintiff sent a legal notice dated on 13.06.2016 to the defendant company for release of his performance bonus. The defendant in its reply dated 20.06.2016 denied the claim of the plaintiff stating that the MBO bonus was not part of committed salary and the plaintiff was given a rating of '5' for his poor performance and as per the company policy all the employees assessed with rating 5 are not entitled to the MBO Bonus and the plaintiff's reporting manager has found the plaintiff's performance unsatisfactory.
(xix) As per the letter of appointment and confirmation letter as well as the annual compensation review letter issued by the defendant company to the plaintiff, the MBO bonus was a part of the committed salary.
(xx) The reply of the defendant that the reporting manager of the plaintiff has found the performance of the plaintiff to be poor is self contradictory as Director Sh. Ashutosh Mahajan has himself rewarded the plaintiff on several occasions for his good performance. The certificate of excellence dated 21.08.2015 and the approval for giving cell phones was personally awarded by Sh. Ashutosh Mahajan.
Suresh Kumar Sharma vs. M/s. Samsung Electronics India Pvt. Ltd CS DJ No. 93/2018 -7- (xxi) The fact that the plaintiff was entrusted with important port folios, projects & authority shows the plaintiff integrity and work ethics. The plaintiff was even granted a Power of Attorney by the defendant to sign and execute important documents.
(xxii) The defendant company at no point of time found the plaintiff lacking in merit, skill or determination. The plaintiff was never reprimanded during the course of his employment.
(xxiii)Thus, it is clear that the bonus incentive was denied due to the resignation of the plaintiff.
(xxiv) The plaintiff again sent a detailed legal notice on 15.09.2016 to the defendant company detailing the above mentioned issues & addressing the reasoning given by the defendant company. It was also highlighted in the said notice that the plaintiff has never been awarded a rating below '3' during his entire carrier with the defendant company. No reply was received to the said legal notice. (xxv) The internal policy of the defendant company further required under performing employees to be informed well in advance of any perceived lack of performance on their part in order to afford such employees an opportunity to improve. The defendant company found no cause for complaint during the entire 18 years of service of the plaintiff. Therefore, there was no reason to award a rating of "5" to the plaintiff for the year 2015, either on the basis of low performance or on the basis of the resignation policy of the defendant company.
Suresh Kumar Sharma vs. M/s. Samsung Electronics India Pvt. Ltd CS DJ No. 93/2018 -8- (xxvi) The defendant has done so deliberately with a malafide intention only in order to avoid the payment of arrears of employment to the plaintiff causing grave mental pain, agony and harassment apart from causing serious monetary damages.
(xxvii) Hence the present suit is filed by plaintiff.
3. CASE OF DEFENDANT The defendant filed its WS denying the averments in the suit and relying upon the contents of its reply to the legal notice of the plaintiff and further stating as follows:-
(i) It is stated that this court does not have the jurisdiction to entertain this suit as the plaintiff was last employed by the defendant company at its Mumbai office from where he resigned. It is stated that employment of the plaintiff with the defendant company is a contract of private employment which is governed by the terms contained in the appointment letter and not by the principle of public policy or administrative law and therefore, the plaintiff is not entitled for any relief as prayed and prayed dismissal of the suit.
(ii) It is stated that suit has been filed only on the basis of the speculations, assumption and presumption of the plaintiff.
(iii) It is stated that full and final settlement amount was duly paid to the plaintiff vide full and final settlement letter dated 4th May 2016 and full and final settlement amount paid to the plaintiff was accepted by him without Suresh Kumar Sharma vs. M/s. Samsung Electronics India Pvt. Ltd CS DJ No. 93/2018 -9- raising any dispute/concern and no dues of the plaintiff are pending with the defendant company.
(iv) It is averred that as per defendant company policy the payment of MBO bonus is not part of committed salary and is subject to certain performance parameters and the appraisal by the reporting officer. It is stated that the plaintiff cannot himself decide his entitlement to a rating of '1' and since he has been rated of '5' he is not entitled to the payment of bonus.
(v) It is stated that the plaintiff was deputed in various parts of the country as per clause 11 of his appointment letter dated 14.08.1997. It is stated that the plaintiff performed his responsibilities as per his job profile and in the same way duties were assigned to other employees of the company. The plaintiff was given recognition and promotion during the tenure of his employment with the defendant company on the basis of his stay/ tenure of service in the company and further the same is dependent on other factors like team efforts/ company performance etc. The plaintiff was sent to Seoul in a routine manner and his salary was increased in regular course as per the rules & policy of the defendant company.
(vi) It is stated that the successful completion of several transactions is not only to the credit of the plaintiff and was the part of team work.
(vii) It is stated that the plaintiff never objected to its rating and he completed his exit formalities without any protest and accepted the full and final settlement amount Suresh Kumar Sharma vs. M/s. Samsung Electronics India Pvt. Ltd CS DJ No. 93/2018 -10- without any demure and has filed the present case as an afterthought. It is stated that the plaintiff has not filed any document to show that he brought to the notice of the defendant company that he was dissatisfied with his rating.
It is further stated that the plaintiff had a time of 30 days to point out the discrepancy in his rating and his full and final settlement which he never did and is therefore now stopped from raising a claim.
(viii) It is further stated that the defendant acted as per the company policy and the plaintiff was denied his bonus because of his poor performance.
4. ISSUES From the pleadings of the parties, following issues were framed:
i. Whether the plaintiff is entitled to recover from the defendant an amount of Rs.3,76,616/ or any other amount along with interest @ 18% p.a. or at any other rate, pendente lite and future, on the basis of the grounds taken the plaint? OPP ii. Whether this court does not have the territorial jurisdiction to entertain and try the present suit for recovery? OPD iii. Whether the suit of the plaintiff is without any cause of action? OPD iv. Relief.
5. PLAINTIFF'S EVIDENCE In support of his case, plaintiff only examined himself as PW1, who tendered his affidavit as Ex.PW1/A and relied upon the following documents:
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1. Appointment Letter Ex. P1 (Colly) (already marked as admitted document)
2. Letter dated 14.02.1998 Ex. P2 (already marked as admitted document)
3. Copy of the internal document of Ex. P3 (Colly) (already the defendant dated nil with Ref. marked as admitted no. SIEL HR 57/14 titled MBO document) and Bonus System
4. Copy of Annual Compensation Ex. P4 (already marked as Review dated 29.04.2015 admitted document)
5. Copy of approval of defendant Ex. P5 (already marked as company dated 30.07.2015 admitted document)
6. Copy of certificate of excellence Ex. P6 (already marked as admitted document)
7. Copy of slides dated nil presented Mark A (colly) on 14.09.2015
8. Copy of emails dated Ex. P7 (already marked as 01.12.2015 and 03.12.2015 admitted document)
9. Copy of Evaluation result dated Ex. P8 (colly)(already marked 25.02.2016 of plaintiff as admitted document)
10. Full and final settlement dated Ex. P9 (already marked as 04.05.2016 admitted document)
11. Statement of full and final Ex. P10 (already marked as settlement dated 04.05.2016 admitted document)
12. Certificate of employment dated Ex. P11 (already marked as 04.05.2016 admitted document)
13. Copy of legal notice dated Mark B (colly) 13.06.2016 with postal receipts
14. Copy of reply dated 20.06.2016 Ex. P12 (colly) (already marked as admitted document)
15. Copy of legal notice dated Mark C (colly) 15.09.2016 with postal receipts
16. Copy of email dated 17.09.2016 Mark D
17. Affidavit u/s 65B of Indian Ex. P13 (colly) (already Evidence Act marked as admitted document) Suresh Kumar Sharma vs. M/s. Samsung Electronics India Pvt. Ltd CS DJ No. 93/2018 -12-
6. The document referred as Ex. P7, Ex. P13, Ex. P15 and Ex. P16 in the affidavit of evidence were Marked as Mark A (colly), Mark B (colly), Mark C (colly) and Mark D respectively.
7. DEFENDANT EVIDENCE In support of his case, defendant examined only one witness DW1 Sh. Nikhil Jain, AR of defendant company who tendered his affidavit as Ex.DW1/A and relied upon the following documents:
1. Copy of Power of Attorney dated 09.01.2020 Ex. DW1/1 (OSR)
2. Copy of Power of Attorney dated 28.10.2016 Ex. DW1/2 (OSR)
8. I have heard arguments of Ld. Counsels for both the parties and have gone through the record carefully.
9. ISSUEWISE FINDINGS.
ISSUE No.i) :Whether the plaintiff is entitled to recover from the defendant an amount of Rs.3,76,616/ or any other amount along with interest @ 18% p.a. or at any other rate, pendente lite and future, on the basis of the grounds taken the plaint? OPP It is argued by the ld. Counsel for the plaintiff that as per the MBO and Bonus System of the defendant Ex.PW1/3, the plaintiff herein was covered under the A3 Category i.e. Management Support F&A. It is argued that as per the parameters for evaluation of employee provided Suresh Kumar Sharma vs. M/s. Samsung Electronics India Pvt. Ltd CS DJ No. 93/2018 -13- under clause B3, the evaluation criteria was based on GPMS rating and the payment of bonus to the employee was as provided in the forth column of the Table in clause B3. It is submitted that the GPMS is a software for evaluation of the performance of an employee, wherein, the evaluation is done by the employee himself and then by Senior officer of the concerned employee to whom the employee reports. It is argued that the plaintiff was performing excellently in the company of the defendant and had saved around 219 crores of the defendant company for which he and his team members were given a recognition award. He was given a Cell Phone Model S5. The Ld. Counsel has relied upon Ex.PW1/5 in this regard. It is further argued that the plaintiff was entrusted with the responsibilities of presenting a report titled "Milestones Crossed" Mark A (colly). It is argued that the said report was presented to the higher officials of the company at Ahmedabad and the fact that he was given this responsibility shows that the plaintiff was performing well in the company. It is argued that the defendant also awarded the certificate of excellence Ex.PW1/6 to the Mumbai Branch for its contributions to defendant company at the time when plaintiff was heading the said branch. It is argued that as per Ex.PW1/8 which is the evaluation result of the plaintiff for the year 2015, the plaintiff was given a rating of 5, thus depriving him of his Suresh Kumar Sharma vs. M/s. Samsung Electronics India Pvt. Ltd CS DJ No. 93/2018 -14- performance bonus. It is argued that as per section 3 "overall comments" of Ex.PW1/8, the reasons for rating the plaintiff as "5" was his resignation and relieving from the job. It is argued that the plaintiff was wrongly rated 5 to deprive him of his deserved bonus only because the plaintiff had resigned from the job. It is argued that if the plaintiff had deserved a rating of 5 then the defendant would not have awarded the plaintiff for his performances, over and above what was due to the plaintiff for his salary as shown in Ex.PW1/5. The Ld. Counsel submits that considering the work done by the plaintiff in his organization the plaintiff deserves nothing but a rating of "1". The Ld. Counsel also argues that the obligation of the defendant to give the performance bonus to the plaintiff was the contractual obligation as it is clear from Ex.PW1/4 as the same is an annual compensation review of the plaintiff and it states that the plaintiff is eligible for the performance bonus.
10. Per contra, it is argued by the Ld. Counsel for the defendant that as per Ex.PW1/4, the performance bonus was not a part of the committed salary of the plaintiff and thus not a matter of right. In support of his contention, he has placed reliance upon a judgement in Manipal Academy of Higher Education v. Provident Fund Commissioner (2008) 5 Supreme Court cases 428, wherein it was held that the basis wages do not include bonus.
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11. It is argued that the performance bonus was to be given to the plaintiff if the plaintiff was found to be eligible as per the company policy. It is argued that the same is clearly mentioned in Ex.PW1/4 and the eligibility criteria is mentioned in Ex.PW1/3 under clause B3, as per which the evaluation was to be on the basis of GPMS rating. It is argued that a perusal of Ex.PW1/8 would clearly show that the plaintiff was rated as "5" in the GPMS rating. It is argued that the Ex.PW1/8 is a document of plaintiff himself and the print out of the said document as mentioned on the document itself is taken on 29.02.2016. It is argued that as per the procedure, the evaluation on the evaluation software is first done by the employee and thereafter the second evaluation is done by the Senior Officer of the concerned employee to whom he reports and on the basis of both the evaluation a final rating is given. It is argued that even after that the employee has the opportunity to raise his grievance qua his evaluation with the reporting manager or the HOD or the local HR Representative as is evident from Ex.PW1/8 itself being clearly mentioned therein. It is argued that there is nothing on record to show that any grievance was raised by the plaintiff with his reporting manager or the HOD qua his alleged wrongful evaluation even though the plaintiff was still working with the defendant and was only relieved on 04.03.2016 (Ex.PW1/11). To the contrary, the Suresh Kumar Sharma vs. M/s. Samsung Electronics India Pvt. Ltd CS DJ No. 93/2018 -16- plaintiff accepted the full and final settlement of his account as is evident from Ex.PW1/10 and thus it is clear that the plaintiff had no grievance with his evaluation and had left the job being well aware that he would not get the bonus. It is argued that as an afterthought the plaintiff served the legal notice dated 13.06.2016 Mark B (colly) claiming the annual MBO incentive of Rs.3,76,616/. It is argued that in the legal notice dated 15.09.2016 Mark C (colly) sent by the plaintiff to the defendant, the defendant himself states that the maximum rating given to him during his employment was "3" and therefore, his claim for the rating of "1" is totally without any basis.
12. It is argued that no declaration has been sought in the present suit by the plaintiff that he be declared entitled to a rating of "1" and in the absence of such a prayer the relief prayed for the payment of bonus amount cannot be granted. It is argued that even otherwise this court cannot declare the plaintiff to be entitled to any particular rating.
13. The present case has been instituted by the plaintiff seeking recovery of Rs.3,76,616/ terming the same as 'arrears of employment' (para 6 of the plaint). However, a perusal of Ex.PW1/1 which is the Appointment Letter of the plaintiff dated 14.08.1997 would show that the there was no provision for any performance bonus in his entitlement. As per Ex.PW1/4 which is the annual compensation review dated 29.04.2015, the plaintiff would Suresh Kumar Sharma vs. M/s. Samsung Electronics India Pvt. Ltd CS DJ No. 93/2018 -17- be eligible for the performance bonus as per the company policy. It is important to note here that the word used is 'eligible' and not 'entitled'. Further, the eligibility was to be as per the company policy and the company policy which is the MBO & Bonus System Ex.PW1/3 laid down various parameters and criteria for the employees and as per the clause B3 which was applicable to the plaintiff the evaluation was to be on the basis of GPMS rating and on the basis of rating the employee was entitled to the bonus payout at certain percentages mentioned therein. Thus, it is clear that there was a particular basis and criteria which if meted out by the plaintiff would make him eligible for the performance bonus and if the criteria is not met out and the rating is 5 the employee would not be eligible to any bonus. Thus, there remain no doubt that the the MBO bonus could not have been claimed by any employee as a matter of right unless and until he meets out the said criteria and therefore, it cannot be said that the same was a part of the employee's salary. Since it is not a part of salary, the plaintiff cannot claim the same as arrears of salary. If at all the same is to be claimed as arrears of salary, the plaintiff would have to show that he had met out the criteria and was rated either 1, 2, 3 or 4. If that is not the case then it would be first be required that the plaintiff first seek a declaration that he had the right to receive the performance bonus for the year 2015 and that Suresh Kumar Sharma vs. M/s. Samsung Electronics India Pvt. Ltd CS DJ No. 93/2018 -18- he was entitled to a particular rating and then the consequential relief of recovery. However, in the present case, no such declaration has been prayed for and in the absence of the same, no relief of recovery of bonus calculated at the rating of "1" can be granted.
14. Even if it is presumed that the plaintiff is entitled to claim the recovery of the amount as prayed in the plaint without seeking declaration in this regard, yet in the considered opinion of this court the plaintiff has failed to prove that he was entitled to a rating of "1". The reasons for holding as above are discussed in the following part of this judgment.
15. It is the case of the plaintiff that the plaintiff had performed excellently during his employment with the defendant and that he is entitled to a rating of '1'. To substantiate his averments, the Ld. Counsel has relied upon Ex.PW1/5 and Ex.PW1/6 and Mark A. As per Ex.PW1/5, which is as per the plaintiff email sent by Sh. Ashutosh Mahajan, Director/Corporate Sr. Manager/SIELSF&A to the upper management recommending the awards for the work of the team members, the acknowledgment was of a team work and not any single individual and therefore, it cannot be said that the said good work was solely attributable to the plaintiff. It is difficult infact impossible to deduce from the said document as to what was the extent of contribution of the plaintiff towards the Suresh Kumar Sharma vs. M/s. Samsung Electronics India Pvt. Ltd CS DJ No. 93/2018 -19- achievement of the team, what was the role performed by the plaintiff and even there is no record before this court to even assess as to at what point of time the plaintiff became the member of the team so that it can be said that the plaintiff had played a major role in getting the rectification order quashing the demand of INR 219.18 Cr. Thus the said document cannot be the basis to say that the plaintiff was performing excellently in his employment.
16. Further, Mark A which as per the plaintiff a slide presentation presented to the upper management by the plaintiff also does not in any way establish the alleged excellent work by the plaintiff. Merely presenting a presentation qua the achievements of the company in the past years would not in any way lead to a conclusion that the person presenting is responsible for those achievements or the person presenting was an excellent employee and therefore, was given the duty to present.
17. Further, Ex.PW1/6 which is the certificate of Excellence presented to Mumbai Branch also does not in any way establish that the plaintiff was an excellent employee as it recognizes a team work and not any individual. Further, it does not anywhere mention that it is a "Certificate of Excellence".
18. Apart from these documents nothing has been placed on record to show that the plaintiff was doing an excellent job and merely on the basis of these documents it Suresh Kumar Sharma vs. M/s. Samsung Electronics India Pvt. Ltd CS DJ No. 93/2018 -20- cannot be said that the plaintiff deserved a rating as claimed. There are various parameters on which the performance of an employee is to be assessed. There are several factors for the evaluation of an employee such as his seriousness towards the work, his capability, competency, performance as a team, achievement of target (if any), regularity to work, number of leaves, complaints against him, if any and especially the commendable work done by him in the year for which he is to be assessed as the bonus is to be distributed annually and the individual employee is evaluated for his work every year. No such record/data has been placed before the court. Even no proof of past ratings, the bonus granted in past years has been proved by the plaintiff. The only fact that the plaintiff has been promoted during his tenure of service and has performed important roles, does establish that the plaintiff was well performing employee with good past record but is not a proof that he was an excellent employee, deserving the best rating or that he even performed excellently in the last year for which he was allegedly wrongly rated as "5". In the absence of any such data, this court cannot decide whether the plaintiff is entitled to rating of "1".
19. Further, a perusal of Ex.PW1/8 would show that there are various head in the GPMS software of evaluation, which are 1). Register Objective 2). Approved Objective Suresh Kumar Sharma vs. M/s. Samsung Electronics India Pvt. Ltd CS DJ No. 93/2018 -21-
3). Self Evaluation 4). Evaluation by Reviewer I, 5). Evaluation by Reviewer II, 6). Performance Feedback Meeting, 7). Evaluation Result. Thus it is clear that the final evaluation result is based on the evaluation under the other heads as mentioned above. However, the plaintiff has not produced before this court the complete details of the above mentioned head which were the basis of the final rating but has chosen to only produce the final result. Thus the possibility of a negative feedback and the reason for a bad rating being a part of the above mentioned head cannot be ruled out. In this regard, it is also important to refer to the evidence of PW1 wherein, in his cross examination dated 14.10.2019, it was stated that he does not remember whether he has filled his self assessment in the GPMS for the year 20152016. Though in this regard, in the cross examination of DW1 it was stated that the failure to fill the self evaluation form is not a ground to rate him low, however, it was stated that any employee who perform exceptionally well will tend to file self evaluation. No reason has been given by the plaintiff as to why he did not fill the self evaluation or if it was filled, what was the content thereof. No reason has been given for not producing the self assessment part and the other heads of the evaluation process.
20. It is also important to refer that in the cross examination dated 14.10.2019 it was stated by plaintiff Suresh Kumar Sharma vs. M/s. Samsung Electronics India Pvt. Ltd CS DJ No. 93/2018 -22- PW1 that he had sent emails objecting to the evaluation, however, the same were never filed on record and therefore, the plaintiff failed to discharge its onus to prove that he had objected to his evaluation. No document / evidence has been led by the plaintiff to show that any objection was raised by him after his knowledge about his rating being '5' being gained on 29.02.2016 and having worked in the organization up till March 2016 (Ex.PW1/11). Thus, it is clear that the plaintiff at the time of relieving from his job on 04.03.2016 was aware that he is not entitled to any performance bonus for the year 2015 and he left the job without any grievance as to his evaluation and non payment of bonus.
21. It is also pertinent to note that it is the case of the plaintiff himself that he was never rated below "3" and therefore, the claim of the plaintiff for a rating of "1" is totally without any basis. Further, the plaintiff has in his cross examination dated 14.10.2019 stated that he came to know about his evaluation in the GPMS system only in the last week of March 2016 which is belied by the Ex.PW1/8 which shows the software to have been accessed by the plaintiff on 29.02.2016. Thus, the statement of the plaintiff cannot be relied upon.
22. Further, an attempt was made to establish by cross examination of DW1 that the bonus was denied to the plaintiff because he had resigned from the company.
Suresh Kumar Sharma vs. M/s. Samsung Electronics India Pvt. Ltd CS DJ No. 93/2018 -23- However, clearly the plaintiff failed in his attempt to do so as the suggestion was denied by the witness and it was stated that the bonus is solely based on performance. It was also stated that if the performance of an employee performing well drops then a feedback is given to him. The onus to prove that no feedback was given to him shifted on the plaintiff the moment the question was answered, however, the same remained undischarged. It was also stated in the evidence of DW1 that an employee with certificates of performance, awards, etc. is generally a well performing employee, however, the performance can decline. No evidence has been led by the plaintiff to show that this was not his case. Further, the case of the plaintiff that he was given a rating of 5 solely because he had resigned also was not proved as the fact that the over all comment in Ex.PW1/8 stated 'resigned & being relieved in due course' does not mean that the same was the reason for the evaluation. It is merely an overall comment and not the reason. In the considered opinon of this court, reason if any could have been found under the head evaluation by reviewer-I, evaluation by reviewerII or performance feedback meeting of the GPMS software which has not been produced before this court.
23. Thus, the plaintiff has failed to prove that he was entitled to payment of bonus at the rating of "1", however, it is important to note that the plaintiff has averred that he Suresh Kumar Sharma vs. M/s. Samsung Electronics India Pvt. Ltd CS DJ No. 93/2018 -24- was never given a rating below "3" and has been paid bonus by the company at the said rating in the previous years. The defendant has maintained a conspicuous silence in this regard in his W/S and has no where specifically denied the said fact. There is not even an iota of hint in the W.S that the plaintff was performing so poor that he deserved a rating of "5". It is the case of defendant that the promotions, roles and responsibilities assigned to the plaintiff were due to his tenure of service and as per company rules and were a part of his work profile but the defendant has not denied that recognition of team work of plaintiff but has argued that it was for the work of a group and not plaintiff alone. Further, the GPMS Software of rating consists of two components i.e. performance 60% and competence 40%, however, the plaintiff has been marked "Zero" for both. There is no reasons in the W/S for marking the plaintiff "Zero" on both the counts. Not even a single evidence has been produced to show the incompetence or the bad performance of the plaintiff. Further the plaintiff was holding an important position in the defendant company and was a part of the team good work of which has been recognized by the defendant. Thus there appears no reason why the plaintiff should be rated "5".
24. In view of the above reasons, in the considered opinion of this court, the plaintiff was at least entitled to Suresh Kumar Sharma vs. M/s. Samsung Electronics India Pvt. Ltd CS DJ No. 93/2018 -25- the payment of bonus payable to an employee who is rated "3" and the same has been arbitrarily withheld by the defendant.
25. Though this court is conscious that the plaintiff has not sought a declaration that he was entitled to a rating of "3", however, a declaration is only required when a right of the plaintiff is being denied by the opposite side. In the present case, the defendant has no where disputed that the plaintiff was not entitled to a rating of "3" but has maintained a conspicuous silence with respect to that. The defendant company cannot be allowed to withhold the entitlement of the plaintiff, who has worked for the defendant for 18 years and has a unblemished record, to his bonus without giving any reasons for withholding the same. Arbitrary decisions/actions of the employer cannot be stamped with the approval of the court. The judgment of Manipal Academy of Higher Education (supra) is not applicable to the facts and circumstances of the present case.
26. In view of above, the issue is decided partly in favour of the plaintiff and against the defendant and plaintiff is held entitled to payment of bonus by defendant company payable at the rate of 250% of his basic salary.
27. ISSUE No.ii :Whether this court does not have the territorial jurisdiction to entertain and try the present suit for recovery? OPD Suresh Kumar Sharma vs. M/s. Samsung Electronics India Pvt. Ltd CS DJ No. 93/2018 -26- It is argued by Ld. Counsel for the defendant that this court does not have the jurisdiction in view of the provision of explanation of section 20 of the CPC. It is submitted that as per Ex.PW1/1 which is the appointment letter of the plaintiff, the plaintiff was to join at Jammu and as per Ex.PW1/7 which is the resignation letter of the plaintiff, the same has been tendered at Mumbai and therefore, no part of cause of action arose at Delhi. It is submitted that as per the explanation of Section 20 CPC the suit should have been filed at Mumbai where the defendant has a branch office and not at Delhi where the defendant has its registered office. Ld. Counsel for defendant has placed reliance on the judgments in Patel Roadways Ltd. v. Prasad Trading Co. (1991) 4 SCC 270, New Moga Transport Company, through its Proprietor Krishanlal Jhanwar v. United India Insurance Co. Ltd. & Ors. (2004) 4 SCC 677, Fair Deal Agencies & Anr. v. Inner Mongolia Muwang Animal Byproduct Company Ltd. & Ors. 2008 (101) DRJ 306, Degremont Ltd. v. Kolkatta Municipal Corporation 2013 SCC Online Del 2853, Ultra Home Construction Pvt. Ltd. v. Purushottam Kumar Chaubey & Ors. 2016 SCC Online Del 376, Unimers India Ltd. v. IFCI Ltd. 2012 (129) DRJ 608.
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28. Per contra it is argued by Ld. Counsel for the defendant that the jurisdiction in the present case is made out at Delhi as section 20 (a) of the CPC is applicable in the facts of the present case. It is argued that the present case relates to a contract of employment and has to be treated on a different pedestal from the cases involving commercial contracts. It is argued that the judgments relied upon by Ld. Counsel for defendant are not applicable to the facts of the present case as most of the cases relate to transport company/ commercial contracts. It is argued that in a case filed by an employee against employer company, it would be unjust to ask an employee who is no longer in service to go to a far of place for contesting a case for a meagre amount as claimed in this matter and asking him to spend even more than what is claimed. It is argued that giving such an interpretation to the applicable provisions of law would render the remedy inefficacious thus denying him justice. In support of his contention, Ld. counsel has placed reliance of judgments Union of India & Anr. v. Sri Ladulal Jain 1963 SCC OnLine SC 133m M/s. Snehal Kumar Sarabhai v. M/s. Economic Transport Organisation & Ors. 1974 SCC OnLine Guj 29, A.B.C. Laminat (P) Ltd. & Anr. v. A.P. Agencies, Salem 1989 2 SCC 163 & Vishal Gupta v. L & T Finance Ltd. 2009 SCC OnLine Del 2806 & Rachit Malhotra v. One 97 Communications Ltd. 2018 SCC OnLine Del 12410.
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29. In judgment of Vishal Gupta vs. L & T Finance Ltd
- 2009 scc OnLine Del 2806, passed by Hon'ble High Court of Delhi, it was held as under:
" 22. The decisions of the Supreme Court in regard to "ouster clause" have invariably been in the context of commercial contracts. In A.B.C. Laminart Pvt. Ltd v. A.P. Agencies, the Defendant was located in Gujarat whereas the Plaintiff was in Salem (Tamil Nadu). The objection by the Defendant as to the jurisdiction of the Court in Tamil Nadu was negatived by the High Court. The Defendant then appealed to the Supreme Court. The ouster clause in that case did not use the word "only" or "exclusively". In that context it was held therefore, that the ouster clause did not manifest the intention of the parties to exclude the jurisdiction of the Court at Tamil Nadu. Accordingly, the order of the High Court was not interfered with. However, the following observations in the said judgment appear to indicate that the convenience of the parties is also a factor that would have to be borne in mind, and that the jurisdiction of the court cannot be said to be completely excluded:-
"16. So long as the parties to a contract do not oust the jurisdiction of all the Courts which would otherwise have jurisdiction to decide the cause of action under the law it cannot be said that the parties have by their contract ousted the jurisdiction of the Court. If under the law several Courts would have jurisdiction and the parties have agreed to submit to one of these jurisdictions and not to other or others of them it cannot be said that there is total ouster of jurisdiction. In other words, where the parties to a contract agreed to submit the disputes arising from it to a particular jurisdiction which would otherwise also be a proper jurisdiction under the law their agreement to the extent they agreed not to submit to other jurisdictions cannot be said to be void as against public policy. If on the other hand the jurisdiction they agreed to submit to would not otherwise be proper jurisdiction to decide disputes arising out of the contract it must be declared void being against public policy. Would this be the position in the instant case?"
23. In Shree Subhlaxmi Fabrics Pvt. Ltd v Chand Mal Baradia (supra) again the question was of interpretation of a commercial contract. Again following the list of judgments from ABC Laminart Pvt. Ltd v. A.P. Agencies, it was held in Angile Insulation v. Davy Ashmore India Limited (1995) 4 SCC 153 that the ouster clause using the words "only" or "exclusively" would in fact decide the jurisdiction of other courts. While the earlier decisions of the High Courts taking a different approach even in commercial contracts (for e.g., see M/s. Patnaik Suresh Kumar Sharma vs. M/s. Samsung Electronics India Pvt. Ltd CS DJ No. 93/2018 -29- Industries Pvt. Ltd v. Kalinga Iron Works) could be distinguished on the basis that they were delivered at a time when the decision in ABC Laminart Pvt. Ltd v. A.P. Agencies had not been rendered by the Supreme Court, none of the decisions deal with a contract of employment.
24. In the considered view of this Court the decisions on the "ouster clause" in the context of a commercial contract have to be held to be distinguishable in their application to a case of a contract of employment. In the employment contract, an employee would not be able to insist that the disputes, if any, are to be referred only to one court and not the other. The employee usually accepts the employment with all the attendant terms and conditions or not at all. In the present case, the letter of employment no doubt states that it is a transferable job. Still, the Plaintiff was to work primarily for the Delhi office of the Defendant. He, in fact, rendered services only in Delhi office. He submitted his resignation at Delhi. For an employee no longer in service to be asked to go to Mumbai for instituting and pursuing litigation would render the remedy expensive and inefficacious for such employee. It would work harshly against him. Moreover, in a situation like the present one where the prayer is essentially for a direction to the Defendant to issue a relieving letter, to direct the employee to go to a different city only because of the ouster clause seems to be unfair and unjust. Although in commercial contracts, it has been held that such an ouster clause would not be opposed to public policy (see the observations in para 18 of the decision in ABC Laminart), in a contract of employment such a clause could well be held to be opposed to public policy. To repeat, the courts have thus far had no occasion to examine how a strict application of the exclusion clause would work for an employee who is out of service. As regards the comparative hardship, the Defendant has an office in Delhi and there will be no difficulty for it to appear before this Court and defend itself.
25. As far as Section 20 CPC is concerned, in terms of clause (b) thereof, the Defendant has an office in Delhi. The letter of appointment was received in Delhi. The email correspondence referred to hereinbefore shows that the Plaintiff's resignation letter was sent from Delhi and the refusal of the relieving letter was communicated to the Plaintiff in Delhi. The result is that the Courts in Mumbai (because of the clause in the appointment letter) and this court, on account of the substantial part of the cause of action having arisen here, have jurisdiction to try the case. The observation in ABC Laminart in para 21 that the intention of the parties to completely oust the jurisdiction of the court in Delhi will have to be tested in the above background. The use of the word "only" in the instant case to qualify the ouster clause cannot be read as conferring exclusive jurisdiction on the court in Mumbai.
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30. In the judgment of Rachit Malhotra vs. One97 Communications Ltd-2019 SCC OnLine Del 12410, passed by Hon'ble High Court of Delhi, it has been held as under:
"11. Moreover, the cause of action is also to be seen in the context of the facts of the case. It cannot be lost sight of that both Patel Roadways Limited, Bombay and New Moga Transport Co. supra are with respect to suits filed against transport companies relating to bookings made from another place and it was in the said factual situation that it came to be held that the claims with respect to the said bookings could be made only at the place where the booking was taken from the client and not at the place where the head office of the transport company was situated. The present case is with respect to specific performance of ESOP Scheme, 2008. A company, as the applicant/defendant is, is statutorily required to maintain all its records at the address of its registered office and such records include the Register of Employee Stock Options as per Rule 12(10) of the Companies (Share Capital and Debentures) Rules, 2014. It is for this reason only that the ESOP Scheme, 2008 filed by the applicant/defendant itself provides for exclusive jurisdiction of the Courts at Delhi. It is thus not as if the Courts at Delhi have no jurisdiction for it to be said that the parties could not by contract have vested jurisdiction in the Courts at Delhi. A suit against the defendant, in relation to the shares of the defendant company, can always be maintained in a Court within whose jurisdiction the registered office is situated and the cause of action for such a suit would also arise at such a place and the agreement qua territorial jurisdiction contained in ESOP Scheme, 2008 is merely limiting the territorial jurisdiction to one of the Courts out of several which may have had jurisdiction to entertain the suit.
12. Thus, no merit is found in the ground taken of lack of territorial jurisdiction for rejection of the plaint."
31. Adverting to the facts of the case, the Ex. PW1/1 i.e. the appointment letter dated 14.08.1997 was issued from the registered office of the defendant company which at the relevant point of time is stated to be in the said letter as "47, Ring Road, Lajpat NagarIII, New Delhi110024. It Suresh Kumar Sharma vs. M/s. Samsung Electronics India Pvt. Ltd CS DJ No. 93/2018 -31- has also been averred in the plaint that the plaintiff was posted at various places, including Delhi, during the tenure of his service. The said averment has not been denied by the defendant. Thus, it is clear that a part of cause of action has arisen in Delhi. It is also not disputed that at the time of filing of the suit the registered office of the defendant company was located at A25, Ground Floor, Front Tower, Mohan Cooperative Industrial Estate, New Delhi110044 as it has been averred in the WS of the defendant that the defendant had shifted its office from the said address on 01.12.2017 i.e. after the filing of the suit. Further, in the judgment in Vishal Gupta (supra) it has been held by Hon'ble High Court of Delhi that decisions in the context of commercial contracts have to be held to be distinguishable in their application to a case of contract of employment. It was also observed by the Hon'ble High Court while distinguishing the judgment in ABC Laminad Pvt. Ltd. (supra) that the courts had no occasion to examine how a strict application of the exclusion clause would work for an employee who is out of service. The Hon'ble court taking note of the comparative hardship of the employee had held that the defendant having an office in Delhi would face no difficulty in contesting the suit. Even in the judgment in Rachit Malhotra (supra) the Hon'ble court had observed that a company is statutory required to maintain its record at the address of registered Suresh Kumar Sharma vs. M/s. Samsung Electronics India Pvt. Ltd CS DJ No. 93/2018 -32- office. In the fact of the present case as well, as already mentioned above, the appointment letter to the plaintiff was issued from the registered office at Delhi which at the time of the commencement of the suit was located at A 25, Ground Floor, Front Tower, Mohan Cooperative Industrial Estate, New Delhi110044 and further being the registered office all the records must have also been maintained at the Delhi office. The plaintiff has also worked for the defendant company at its Delhi Office. Thus it is clear that a part of cause of action has also arisen in Delhi and thus, this court has the jurisdiction to try the present suit. Before parting with this issue, this court also deems it appropriate to refer to an extract from the judgment of the Hon'ble Gujrat High Court in M/s. Snehal Kumar Sarabhai (supra), which is as under :
1. Not infrequently the Courts slam the door of the temple of justice justice in the face of a Pilgrim (who has admittedly been wronged) at the behest of the 'Proved wrongdoer solely on the ground that he has knocked at a different door....."
32. Needless to mention that the present case relates to a contract of employment and the judgments relied upon by the Ld. Counsel for the defendant are distinguishable on the facts of the case as also held in the judgment of Vishal Gupta (supra) & Rachit Malhotra (supra). In view of the above discussion, it is held that this court has the territorial jurisdiction to try the present suit. This issue is Suresh Kumar Sharma vs. M/s. Samsung Electronics India Pvt. Ltd CS DJ No. 93/2018 -33- accordingly decided in favour of the plaintiff and against the defendant.
33. ISSUE No.3 :Whether the suit of the plaintiff is without any cause of action? OPD It is argued by Ld. Counsel for the defendant that the present suit is without any cause of action as the plaintiff has based his case on the basis of assumption that he was entitled to a rating of '1'. It is argued that the grant of incentive was based on evaluation by the plaintiff's Reviewer & Reporting Manager. It is further argued that it is the case of the plaintiff himself that the plaintiff has never been awarded a rating below '3' during his entire tenure of service and thus the case of the plaintiff for recovery of bonus amount claiming himself to be entitled at the rating of '1' is misconceived. It is argued that since the plaintiff has not claimed the adjudication on his entitlement to rating the present suit is without any cause of action.
34. Ld. Counsel for the plaintiff has submitted the same arguments as in issue no.1 and has argued that the plaintiff has a cause of action to institute the present suit.
35. The present suit has been filed by the plaintiff for recovery of the bonus amount alleging that the defendant company has arbitrarily withheld his performance bonus, which as per the annual compensation review Ex.PW1/4 was payable to him. Though the suit has been filed on the Suresh Kumar Sharma vs. M/s. Samsung Electronics India Pvt. Ltd CS DJ No. 93/2018 -34- premise that the plaintiff is entitled to a rating of '1' and no adjudication has been sought in this regard, however, it cannot be said that the suit is without any cause of action as cause of action is defined as bundle of facts entitling the plaintiff to seek a remedy before the courts of law.
36. In the present case, the plaintiff has averred the violation of his right, to receive the performance bonus, by the arbitrary action of the defendant company and has clearly shown that as per the rules applicable to him, if the plaintiff was found eligible, he shall be entitled to payment of bonus. Though the plaintiff has averred that he is entitled to a particular amount of bonus but is not able to show his entitlement to the amount claimed but has successfully proved that he is entitled to payment of bonus, though at a reduced rate. Thus in view of the above and in view of the reasons and findings in issue no. (i), the issue is decided in favour of plaintiff and against the defendant.
37. RELIEF :
In view of the findings on the above issues, the suit of the plaintiff is partly decreed. The plaintiff is entitled to recover an amount of Rs. 2,35,385/- (i.e. 250% of Rs. 94,154/-) from the defendant alongwith pendente lite and future interest @ 7% per annum from the date of filing of the suit till realization. Costs of the suit is also awarded in favour of plaintiff. Decree sheet be drawn accordingly.
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38. File be consigned to Record Room.
Digitally signedAnnounced in open Court GUNJAN by GUNJAN GUPTA On 30.09.2024 GUPTA Date: 2024.10.05 13:32:16 +0530 (GUNJAN GUPTA) District Judge-04(SE) Saket Courts, New Delhi Suresh Kumar Sharma vs. M/s. Samsung Electronics India Pvt. Ltd CS DJ No. 93/2018