Delhi District Court
Bharat Bhushan Gupta vs Bajaj Electricals Limited on 19 November, 2022
IN THE COURT OF HARVINDER SINGH,
PRESIDING OFFICER : MACT - 01,
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
JUDGMENT
Bharat Bhushan Gupta ....................Plaintiff S/o Sh. S. N. Gupta R/o 302, Cauvery, Agarsen Awas, 66, I.P. Extension, Delhi - 110 092.
Versus Bajaj Electricals Limited ...........Defendant Engineering & Projects Business Unit at DLF Tower, Shivaji Marg, Near Moti Nagar, New Delhi - 110 015.
Also at Registered Officer 45/47, Veer Nariman Road, Mumbai - 400 001.
Date of institution : 12.05.2017
Date of final arguments : 19.10.2022
Date of final decision : 19.11.2022
SUIT FOR RECOVERY OF RS.13,32,000/-
(RUPEES THIRTEEN LAKH
THIRTY TWO THOUSAND ONLY)
1. Vide this judgment, this Court shall decide this suit filed by plaintiff against defendant for recovery of sum of Rs.13,32,000/- along-with pendente-lite and future interest @ 18% per annum and costs of the suit.
PLAINTIFF SIDE CASE
2. Succinctly, the case of plaintiff as discernible from his Bharat Bhushan Gupta Vs. Bajaj Electricals Ltd. Civ.DJ No.547/2017 [19.11.2022] Page No.1 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.11.19 16:08:35 +0530 pleadings is that plaintiff was employed by defendant on contractual basis vide appointment letter E&P BU/466/LM : FF dated 12.08.2011 with retainer-ship fees of Rs.85,000/- per month along-with fuel, driver and vehicle maintenance charges of Rs.15,000/- per month and mobile reimbursement charges of Rs.750/- per month. Plaintiff was also supposed to get incentives subject to performance evaluation on quarterly basis. Plaintiff joined defendant for period of one year from 01.09.2011 to 31.08.2012. The defendant extended the contract for first time in year 2012 for another one year. The defendant has not paid incentives amounting to Rs.6,00,000/- for the period 2012 - 2013 as was agreed by defendant vide second letter dated 01.09.2012. The defendant has also not paid incentives amounting to Rs.3,00,000/- for the period 2013 - 2014 as agreed by defendant vide letter dated 01.09.2013. The defendant was fully satisfied with the services of plaintiff so offered employment vide letter no.E&P BU/HRAD/2014-2015 dated 01.09.2014 for another period of one year w.e.f. 01.09.2014 to 31.08.2015, but plaintiff refused to join as incentives for last two years amounting to Rs.9,00,000/- were not paid. The plaintiff had words with Sh. Rakesh Markhedkar and Sh. Sanjay Gurav of defendant in the said context, but in vain. The requests of the plaintiff for payment of Bharat Bhushan Gupta Vs. Bajaj Electricals Ltd. Civ.DJ No.547/2017 [19.11.2022] Page No.2 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.11.19 16:09:02 +0530 incentives were not adhered to by the defendant side, so plaintiff discontinued with defendant. Plaintiff worked with the defendant till 31.08.2014, has requested defendant vide various emails and letters for payment of outstanding incentives, but in vain. The defendant is liable to pay interest @ 18% per annum upon withheld amount. Plaintiff served legal demand notice dated 30.03.2017 upon the defendant, but same was neither replied nor complied. With these main averments, plaintiff has filed this suit for recovery of Rs.13,32,000/- along-with pendente-lite and future interest @ 18% per annum and for costs of the suit.
MISCELLANEOUS PROCEEDINGS
3. Summons of the suit were issued against defendant, same were served, defendant side appeared and filed its written statement.
DEFENDANT SIDE CASE
4. Succinctly, the case of defendant as discernible from its written statement is that the present suit is barred by limitation as far as filed for recovery of Rs.6,00,000/- averred to be due for period 01.09.2012 to 31.08.2013. The defendant is also estopped from claiming the incentive for period 01.09.2012 to 31.08.2013 as he agreed to provide services under new contract even without payment of incentives for said period. The plaintiff has himself Bharat Bhushan Gupta Vs. Bajaj Electricals Ltd. Civ.DJ No.547/2017 [19.11.2022] Page No.3 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.11.19 16:09:34 +0530 stated that incentives were payable subject to performance, but he has nowhere showed/averred that he achieved the criteria for claiming incentives. The defendant was offered appointment vide letter E&P BU/466/LM : FF dated 12.08.2011 with retainer-ship fees of Rs.85,000/- per month along-with fuel, driver and vehicle maintenance charges Rs.15,000/- per month and mobile reimbursement charges Rs.750/- per month. The performance of plaintiff was not up to mark for said period, however, he was paid incentives for said period as promised/agreed. The plaintiff assured defendant after completion of contractual period from 12.08.2011 to 31.08.2012 that he will improve services and will show desired results, if he is offered contract again. Defendant relying upon the assurances given by plaintiff reappointed him on contractual basis vide letter no.E&P BU/40/LM:FF dated 01.09.2012 for another one year w.e.f. 01.09.2012 to 31.08.2013. This time considering past performance of the plaintiff, the payment of incentives were scheduled to be paid on the basis of performance during contract period and ratings/evaluation to be done at the end of contract period as per table/ratings provided in said letter. The rating of plaintiff for said period was not up to mark, was PME (partial met expectations) so plaintiff was not extended/provided any incentives. Similarly, the plaintiff was Bharat Bhushan Gupta Vs. Bajaj Electricals Ltd. Civ.DJ No.547/2017 [19.11.2022] Page No.4 of 25 Digitally signed HARVINDER by HARVINDER SINGH SINGH Date: 2022.11.19 16:11:41 +0530 further appointed for period 01.09.2013 to 31.08.2014 vide letter no.E&P BU/HRAD/2013-2014/04 dated 01.09.2013 vide which the payment of incentives were settled to be subject to performance during contract period and ratings/evaluation to be done at the end of contract period as per table/ratings provided in said letter. The services of plaintiff had been unsatisfactory during previous periods as he failed to achieve goals and objectives of employment. Consequently, even retainer-ship fees of plaintiff was reduced to Rs.55,000/- per month vide appointment letter dated 01.09.2013. Similarly, incentive(s) offered was/were reduced to maximum Rs.3,00,000/- that too subject to performance to be evaluated as per table provided in said letter. The plaintiff was engaged for services/work mentioned in the appointment letters. The performance of the plaintiff for even contractual year 2011 - 2012 was not satisfactory, but was still paid incentives equivalent to Rs.6,00,000/- as per terms of initial appointment letter. Considering the performance of the plaintiff, thereafter the payment of incentives were rescheduled to be paid on the basis of performance. The plaintiff himself accepted his low performance while accepting service/contract for period 01.09.2012 to 31.08.2013 by requesting to evaluate his performance on quarterly basis instead of yearly basis. The performance of the plaintiff Bharat Bhushan Gupta Vs. Bajaj Electricals Ltd. Civ.DJ No.547/2017 [19.11.2022] Page No.5 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.11.19 16:11:59 +0530 during contractual period 01.09.2012 to 31.08.2013 was stated partial met expectations (PME), so no incentive(s) was/were payable to him. The performance of the plaintiff for two consecutive years 01.09.2011 to 31.08.2013 was unsatisfactory, below expectations, therefore, even plaintiff's retainer-ship fees was reduced and the incentives offered were also reduced vide employment letter dated 01.09.2013. The number of accidents increased during the tenure of plaintiff. With these main averments, the defendant has sought dismissal of the suit of plaintiff with costs.
ISSUES FRAMED
5. After completion of pleadings, following issues were framed by scholarly predecessor of this Court vide order dated 09.11.2017 : -
(i) Whether the suit of the plaintiff is within the period of limitation? OPP
(ii) Whether the suit of the plaintiff is barred by Section 115 of The Indian Evidence Act, 1872? OPD
(iii) Whether the plaintiff is entitled for recovery of amount of Rs.13,32,000/- along-with interest, as prayed for? OPP
(iv) Relief.
Bharat Bhushan Gupta Vs. Bajaj Electricals Ltd. Civ.DJ No.547/2017 [19.11.2022] Page No.6 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.11.19 16:12:07 +0530 PLAINTIFF SIDE EVIDENCE 6.1 In order to prove his case, plaintiff has examined himself as PW1, tendered his examination-in-chief vide affidavit Ex.PW1/A reiterating almost similar facts as of his pleadings and exhibited/marked documents i.e. letter dated 12.08.2011 Ex.PW1/1, letter dated 01.09.2012 Ex.PW1/2, letter dated 01.09.2013 Ex.PW1/3, letter dated 01.09.2014 Ex.PW1/4, legal notice dated 30.03.2017 Ex.PW1/5, postal receipts Ex.PW1/6 (collectively) (running into two receipts) and speed post tracking reports Ex.PW1/7 (collectively) in his evidence. PW1 was examined, cross-examined at length by defendant side which is not reproduced herein for sake of brevity and was discharged. 6.2 No other witness was examined by plaintiff side and thereafter, matter was fixed for defendant evidence. DEFENDANT SIDE EVIDENCE 7.1 AR of the defendant Sh. Pradeep Shukla examined himself as DW1, tendered his examination-in-chief vide affidavit Ex.DW1/A reiterating almost similar facts as of their pleadings and exhibited/marked documents i.e. attested copy of POA dated 27.11.2007 along-with copy of resolution dated 26.10.2006 Ex.DW1/1, work order dated 12.08.2011 Ex.DW1/2, work order dated 01.09.2012 Ex.DW1/3, work order dated 01.09.2013 Bharat Bhushan Gupta Vs. Bajaj Electricals Ltd. Civ.DJ No.547/2017 [19.11.2022] Page No.7 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.11.19 16:12:15 +0530 Ex.DW1/4, work order dated 01.09.2014 Ex.DW1/5, copy of letter dated 10.09.2012 Mark 'A', letter dated 12.09.2013 Mark 'B' and details of claims for WC policy Ex.DW1/8 in his evidence. DW1 was examined, cross-examined at length by plaintiff side which is not reproduced herein for sake of brevity and was discharged. 7.2 Defendant side has examined Sh. Mukesh Kumar Vidyarti, Senior Manager, Bajaj Electrical Limited, Patna Branch as DW2 who tendered his examination-in-chief vide affidavit Ex.DW2/A deposing on same lines as DW1. He however also deposed regarding the duties/work to be performed by the plaintiff. He was also cross-examined at length by Ld. Counsel for the plaintiff which is not reproduced herein for sake of brevity and was discharged.
7.3 Defendant side has also examined Sh. Bhupender Kumar, Branch Operations and Service Manager of Bajaj Allianz General Insurance Company Limited, 12th Floor, Dr. Gopal Das Bhawan, Barakhamba Road, Connaught Place, New Delhi - 110 001 as DW3 who has brought on record the records of workmen compensation policies issued by Bajaj Allianz on the recommendations of defendant from 01.09.2011 to September, 2015. He also brought on record the list of claims raised/under workmen compensation policies from year 2010 to 12.03.2018 Bharat Bhushan Gupta Vs. Bajaj Electricals Ltd. Civ.DJ No.547/2017 [19.11.2022] Page No.8 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.11.19 16:12:23 +0530 which were provided on request of defendant. He marked/exhibited Power of Attorney provided by Bajaj Allianz General Insurance Company to depose as DW3/1 and the letter dated 12.05.2018 sent by Bajaj Allianz to the defendant as DW1/8 in his evidence. DW3 was examined, cross-examined at length by plaintiff side which is not reproduced herein for sake of brevity and was discharged.
7.4 Thereafter, defendant evidence was closed by the defendant and matter was fixed for final arguments. ARGUMENTS/SUBMISSIONS/CONTENTIONS 8.1 Final arguments from both side were heard. Written submissions have also been submitted by both side. 8.2 It is submitted/contended by the plaintiff side vide its oral and written submissions that the plaintiff joined services of defendant from 01.09.2011 to 31.08.2014 vide letters Ex.PW1/1 to Ex.PW1/3 available on record. The defendant company paid incentives for the year 2011 - 2012, but had not paid incentives for the year 2012 - 2013 and 2013 to 2014 which were demanded by the plaintiff from defendant company through his email [email protected] provided by the defendant company, he was assured that dues will be paid within some time, but were not paid thereafter. The defendant company used to Bharat Bhushan Gupta Vs. Bajaj Electricals Ltd. Civ.DJ No.547/2017 [19.11.2022] Page No.9 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.11.19 16:12:31 +0530 maintain running account of plaintiff and incentives of Rs.6,00,000/- and Rs.3,00,000/- for the year 2012 - 2013 and 2013
- 2014 respectively are due against the defendant company. There was no fault or break in the employment of the plaintiff. The defendant company never communicated to the plaintiff that he is not performing his duties or his performance is not up to mark and had it been so, the plaintiff would not have been engaged further. The defendant side has failed to prove that the plaintiff was not performing his duties properly at any point of time. The suit of the plaintiff is within period of limitation as DW2 has admitted in his cross-examination that they maintain running account of each employee. The documents Mark 'A' and 'B' are forged and fabricated documents and were never sent to the plaintiff. The record of accidents brought on record by DW3 mentions only seven accidents to have occurred during 2013 - 2014. It does not provide the number of accidents of year 2012 - 2013 and further the number of accidents of year 2014 - 2015 are not related to the employment of plaintiff. The DW1 has also admitted in his cross- examination that plaintiff has given training on 2 - 3 occasions. It is submitted that the suit of the plaintiff side needs to be decreed in given circumstances.
8.3 Per contra, the contentions of defendant side are that Bharat Bhushan Gupta Vs. Bajaj Electricals Ltd. Civ.DJ No.547/2017 [19.11.2022] Page No.10 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.11.19 16:12:38 +0530
the suit of the plaintiff for claim of period 2012 - 2013 is barred by limitation. The plaintiff was specifically hired to reduce the accidents, to perform/function duties as mentioned in the appointment letters, but his performance was unsatisfactory on all counts. The incentives of period of first year were paid to the plaintiff, but considering his dismal past performance, the terms of employment were re-framed, his retainer-ship fees and incentives were reduced in further contracts. The onus to prove his case was upon the plaintiff and he was failed to discharge the same. Since, plaintiff entered into contract for subsequent years without payment of incentives, so the plaintiff is estopped from claiming incentives for the year 2012 - 2013.
8.4 Submissions/contentions/case of both side considered. Records perused.
UNCONTROVERED/UNDISPUTED FACTS
9. Before proceeding further to decide the rival contentions of both sides, it would be apposite to note here the uncontroverted/undisputed facts of this case which would be relevant for the decision of this matter. It is not in dispute that the plaintiff was first engaged by the defendant on contractual basis vide appointment letter dated 12.08.2011 Ex.PW1/1 for period 01.09.2011 to 31.08.2012. The defendant was agreed to be paid Bharat Bhushan Gupta Vs. Bajaj Electricals Ltd. Civ.DJ No.547/2017 [19.11.2022] Page No.11 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.11.19 16:12:46 +0530 Rs.85,000/- per month as retainer-ship fees, Rs.15,000/- towards maintenance of vehicle, reimbursement of Rs.750/- as mobile charges and incentives up to Rs.6,00,000/- per annum (Rs.1,50,000/- per quarter) on successful completion of approved quarterly objectives and achievements of goals of every quarter. The scope of work was also mentioned and provided vide said appointment letter only. It is also not in dispute that the plaintiff was paid whole of retainer-ship fees, reimbursement of vehicle maintenance/usages, expenses of mobile and maximum incentives i.e. Rs.6,00,000/- for period 01.09.2011 to 31.08.2012. It is also not in dispute that plaintiff was again employed by defendant vide its letter dated 01.09.2012 Ex.PW1/2 for period 01.09.2012 to 31.08.2013 with Rs.85,000/- per month as retainer-ship fees, Rs.15,000/- towards maintenance of vehicle, reimbursement of Rs.750/- as mobile charges and incentives totaling up to Rs.6,00,000/- per annum (Rs.1,50,000/- per quarter) on successful completion of approved quarterly objectives and achievements of goals of every quarter. However, it was agreed that plaintiff would be entitled to incentives at the end of contract period based upon ratings in the manner i.e. partial met expectations (PME) incentives payable would be NIL, satisfactorily met expectations (SME) incentives payable would be Rs.2,00,000/-, completely met Bharat Bhushan Gupta Vs. Bajaj Electricals Ltd. Civ.DJ No.547/2017 [19.11.2022] Page No.12 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.11.19 16:12:56 +0530 expectations (CME) incentives payable would be Rs.4,00,000/- and exceeded expectations (EE) incentives payable would be Rs.6,00,000/-. All the incentives payable were on annual basis and the scope of work during said period also was same as was for previous period. It is also not in dispute that the plaintiff was further contractually engaged vide letter dated 01.09.2013 Ex.PW1/3 for period 01.09.2013 to 31.08.2014, scope of work being same as of pervious year, however, the retainer-ship per month was reduced to Rs.55,000/- per month. The charges for conveyance and mobile were retained same as per previous contractual periods of employment. It was contracted that the plaintiff would be entitled for incentives at the end of contract period on satisfying the parameters of reducing accident ratio from last year upon project sites of the defendant. The order agreed was that in case of reduction of accidents on yearly basis @ 30% to 49%, the incentives payable would be Rs.1,00,000/- per annum, on reduction of accidents @ 50% to 69% from previous year, the incentives payable would be Rs.2,00,000/- per annum and in case of reduction of accidents @ 70% and above from previous year, the incentives payable would be Rs.3,00,000/- per annum. It is also not in dispute that no incentives were paid by the defendant to the plaintiff for contractual periods of Ex.PW1/2 and Ex.PW1/3. It is Bharat Bhushan Gupta Vs. Bajaj Electricals Ltd. Civ.DJ No.547/2017 [19.11.2022] Page No.13 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.11.19 16:13:04 +0530 also not in dispute that the plaintiff was offered further contractual employment vide appointment letter dated 01.09.2014 Ex.PW1/4 for period 01.09.2014 to 31.08.2015 on similar terms and conditions as of Ex.PW1/3, however, the plaintiff did not join the defendant company vide Ex.PW1/4.
ISSUE WISE DISCUSSION/ANALYSIS/FINDINGS Issue no.(iii) Whether the plaintiff is entitled for recovery for an amount of Rs.13,32,000/- along-with the interest, as prayed for? OPP 10.1 This issue is taken up ahead of other issues, as the discussions and findings of this issue would have bearing upon the decision of other issues and the other issues could then be decided vide short discussions citing decision of the present issue. The onus of proving the present issue was upon the plaintiff. The case of the plaintiff is that he has achieved the objectives of scope of his work provided by Ex.PW1/2 and Ex.PW1/3, therefore, he is entitled to incentives of Rs.6,00,000/- promised vide Ex.PW1/2 and incentives of Rs.3,00,000/- promised vide Ex.PW1/3. The case put-forth by the plaintiff is that he was never communicated any correspondence stating that he has not done his work satisfactorily and has not achieved any desired objectives of his employment provided vide said appointment letters.
Bharat Bhushan Gupta Vs. Bajaj Electricals Ltd. Civ.DJ No.547/2017 [19.11.2022] Page No.14 of 25 Digitally signed HARVINDER by HARVINDER SINGH SINGH Date: 2022.11.19 16:13:13 +0530 10.2 On the other hand, the case put-forth by defendant side is that the performance of the plaintiff since his initial contractual appointment vide Ex.PW1/1 was not satisfactory, so after paying incentives for contractual period of Ex.PW1/1, the conditions of payment of incentives were modified, elaborated and it was agreed that the plaintiff would become entitle for payment of incentives at the end of contract period only after ratings as enumerated vide Ex.PW1/2. The plaintiff's performance was rated as partially met expectations (PME) for contract period of Ex.PW1/2, so he was not paid any incentives and further due to his dismal performance, the plaintiff was given contractual employment vide Ex.PW1/3 for further one year reducing even his retainer-ship fees and connecting the incentives payable on the basis of reduction of accidents as enumerated in Ex.PW1/3. The performance of the plaintiff for contractual period of Ex.PW1/3 was also dismal, hence, he was not paid any incentives for said contract period also. The plaintiff has himself admitted his performance to be below par vide Ex.PW1/2 as he himself made endorsement on same in his handwriting that his performance be evaluated quarterly instead of on basis of full year so that he can improve his performance in case of low performance being observed. The acceptance of contractual employment vide Ex.PW1/3 with reduced retainer-ship fees, Bharat Bhushan Gupta Vs. Bajaj Electricals Ltd. Civ.DJ No.547/2017 [19.11.2022] Page No.15 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.11.19 16:13:19 +0530 linkage of payment of incentives with reduction of accidents ratio and reduction of incentives payable itself show that the plaintiff has admitted that his performance was even below minimum requirements for payment of incentives. Now, if the case of both side is examined, it is clear that both sides are relying upon same contractual agreements/letters Ex.PW1/2 and Ex.PW1/3 for payment/dis-entitlement of payment of incentives. 10.3 Before deliberating this issue further, it would be pertinent to note the provisions of Section 91 and 92 of The Indian Evidence Act, 1872 which provide as under : -
"91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document. -- When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein-before contained.
Exception 1.--When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.
Exception 2.-- Wills 3 [admitted to probate in 4 [India]] may be proved by the probate.
Explanation 1.--This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document and to cases in which they are contained in more documents than one.
Explanation 2.-- Where there are more originals than one, one original only need be proved.
Explanation 3. -- The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact.
92. Exclusion of evidence of oral agreement. -- When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been Bharat Bhushan Gupta Vs. Bajaj Electricals Ltd. Civ.DJ No.547/2017 [19.11.2022] Page No.16 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.11.19 16:13:54 +0530 proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms : -
Proviso (1). -- Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, 1 [want or failure] of consideration, or mistake in fact or law.
Proviso (2). --The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.
Proviso (3). --The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.
Proviso (4). --The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
Proviso (5). -- Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved : Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.
Proviso (6). -- Any fact may be proved which shows in what manner the language of a document is related to existing facts."
10.4 It is not case of any side that the conditions of the contractual employment vide Ex.PW1/2 and Ex.PW1/3 were altered or changed vide any subsequent oral or written contract. It is also not the case of any side that any fraud or misrepresentation was made by any of the side at the time of entering into contract of contractual employment vide Ex.PW1/2 and Ex.PW1/3. The scope of work of the plaintiff was clearly laid down vide Ex.PW1/2 and Ex.PW1/3 which included creation and maintenance of safe working culture at project sites, manufacturing sites and offices;
Bharat Bhushan Gupta Vs. Bajaj Electricals Ltd. Civ.DJ No.547/2017 [19.11.2022] Page No.17 of 25
Digitally signed by
HARVINDER HARVINDER
SINGH
SINGH Date: 2022.11.19
16:14:00 +0530
training of all staff and undertaking of inspection and surveillance audit of project sites; to assist divisions from time to time in developing efficient project executions; instructions and discussions with sub-contractors, suppliers and other associates to make them comply with defendant's safety, health and environment policies with periodic monitoring and control; development of emergency/disaster management procedure, its implementations, mock drills, regular audit; conduct of periodic safety workshops at construction sites and some more of such nature. Since onus of proving the present issue was upon the plaintiff, therefore, the plaintiff was obliged to prove vide cogent evidence that he had done his work/assignment/projects comprehensively to entitle him to ratings of exceeded expectations (EE) for contractual period of Ex.PW1/2 and had reduced accident ratio at project sites of the defendant @ 70% and above for contract period of Ex.PW1/3. Plaintiff has not submitted any document during his evidence to show that he has attained the objectives as per his averments entitling him incentives of Rs.6,00,000/- for contractual of Ex.PW1/2 and Rs.3,00,000/- for contractual period of Ex.PW1/3. The only deposition of plaintiff on that aspect vide his affidavit of evidence is that the defendant was fully satisfied with his services so was offered contractual services again and again and that he sent Bharat Bhushan Gupta Vs. Bajaj Electricals Ltd. Civ.DJ No.547/2017 [19.11.2022] Page No.18 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.11.19 16:14:06 +0530 emails to the defendant requesting payment of said incentives. He however has deposed in his cross-examination that he made safety policy of the company, a safety hand book and occupational health and safety management system manual. He also prepared forms of safety development and awareness which were issued to all sites for implementation. Now, if the evidence of the plaintiff on said aspect is considered then it is clear that he has not brought on record any documentary proof to substantiate his claim of having achieved objectives/ratings entitling him to payment of incentives as demanded by him. There is even no deposition to the fact that he has done these specific required acts on these these days and that specific required acts on these these days or was doing such specific required acts on these particular days of each month and that specific require acts on these particular days of each month regularly. On the contrary oblivious to his duties enumerated in Ex.PW1/2 and Ex.PW1/3, he has deposed in his cross-examination that implementation of safety policy was not his responsibility, he used to visit sites occasionally, he was never given work of implementation of safety policy or to do mock drills and regular audits. Plaintiff however has deposed in his cross-examination that he has given his observations/comments on non-safe working conditions at sites to the site manager and corporate office vide Bharat Bhushan Gupta Vs. Bajaj Electricals Ltd. Civ.DJ No.547/2017 [19.11.2022] Page No.19 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.11.19 16:14:11 +0530 emails from email of the defendant company, but he has not brought on record said emails. Plaintiff has sought reliance upon the fact that no communication of unsatisfactory performance was made to him so his performance during contractual period should be inferred to be as entitling him incentives as demanded by him. The plaintiff has also sought to rely upon the deposition of DW1 that the plaintiff was provided email-ID [email protected] and has contended that the defendant could have brought the emails sent from said email-ID on record. In the opinion of this Court, the onus was upon the plaintiff to bring those emails on record and the plaintiff could not fault defendant to have not produced the emails sent to the other officials of the company from said email-ID. It is not the case of the plaintiff that he issued notice under Order 12 Rule 8 of The Code of Civil Procedure, 1908 to produce the said documents or had filed an application for discovery or had made request for inspection if the said email records were in the possession of defendant side. The plaintiff had never sought summoning of records of said email through concerned employee/official of the defendant to prove his case of communication of works done by him and suggestions given by him for achievement of objectives of his employment. The records of accidents brought on record by the Bharat Bhushan Gupta Vs. Bajaj Electricals Ltd. Civ.DJ No.547/2017 [19.11.2022] Page No.20 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.11.19 16:14:16 +0530 defendant side are also of no help to the plaintiff since there is no report on records of deaths due to accidents which have taken place prior to the period of Ex.PW1/3 for comparision qua his claim of Ex.PW1/3. Since the plaintiff has failed to prove that he has achieved the objectives and ratings entitling him for incentives claimed for contractual period of Ex.PW1/2 and Ex.PW1/3 or for any lessor incentives, therefore, the case of the plaintiff shall fail. Moreover, the case of the defendant on the aspect of the performance of the plaintiff being not up to mark dis-entitling him for payment of any incentives appears to be more probable on the scales of preponderence of probabilities given the fact that the incentives payable were linked to performance/ratings vide Ex.PW1/2 after period of Ex.PW1/1 and further even retainer-ship fees was reduced vide appointment letter Ex.PW1/3 and more stringent conditions were affixed for evaluation/ratings of performance for payment of incentives vide them after first period of Ex.PW1/1. In view of above discussions, this Court is of the opinion that plaintiff has failed to prove that the defendant side is liable to pay incentives for contractual period of Ex.PW1/2 and Ex.PW1/3 and he is entitled for payment of Rs.6,00,000/- and Rs.3,00,000/- as incentives for contractual periods of Ex.PW1/2 and Ex.PW1/3. Hence, issue no.03 is decided in favour of Bharat Bhushan Gupta Vs. Bajaj Electricals Ltd. Civ.DJ No.547/2017 [19.11.2022] Page No.21 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.11.19 16:14:23 +0530 defendant and against the plaintiff.
Issue no.(i) Whether the suit of the plaintiff is within the period of limitation? OPP
11. The onus of proving this issue was upon the plaintiff side.
The article 7 of The Schedule I of The Limitation Act, 1963 provides as under : -
THE SCHEDULE PERIODS OF LIMITATION FIRST DIVISION - SUITS Description of suit Period of Time from which limitation period begins to run PART I - SUITS RELATING TO ACCOUNTS
1. ...............
PART II - SUITS RELATING TO CONTRACTS
6. ...............
7. For wages in the Three years When the wages case of any other accrue due.
person.
8. ...............
In view of the above reproduced article, it is clear that the limitation for claim of wages/salary by employee/wager is three years from the date the said wages/salary becomes payable. The period of employment vide Ex.PW1/2 expired on 31.08.2013 whereas the present suit was filed only on 11.05.2017 i.e. after expiry of more than three years. The suit of the plaintiff for claim of incentives for period of employment vide Ex.PW1/2 is therefore Bharat Bhushan Gupta Vs. Bajaj Electricals Ltd. Civ.DJ No.547/2017 [19.11.2022] Page No.22 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.11.19 16:14:29 +0530 beyond period of limitation as per The Limitation Act, 1963.
The plaintiff has put-forward the case that he was employed continuously from 01.09.2011 to 31.08.2014, therefore, his case is a case of continuous employment and running account. He has sought reliance upon the deposition of DW2 who has deposed in his cross-examination that defendant maintains running account of each employee. In the opinion of this Court, a situation of running account implies to the cases of trade of goods and continuous business. Same could not be said to be applicable to a case of a contractual employee. The DW2 has also deposed further after his above deposition that the running accounts are maintained only of regular employees and not of other employees. No case law could be cited by plaintiff that in such cases limitation as applicable to running accounts would apply. It does not appear to be logical also that law of running accounts which is applicable to case of trade of goods would apply to cases of employees. In given circumstances, this Court is of the opinion that the case of the plaintiff for recovery of incentives based upon Ex.PW1/2 is barred by limitation, however, remaining suit based upon Ex.PW1/3 is within period of limitation. Hence, this issue is partly decided in favour of defendant and against the plaintiff qua Ex.PW1/2 and is partly decided in favour of plaintiff and against the defendant qua Bharat Bhushan Gupta Vs. Bajaj Electricals Ltd. Civ.DJ No.547/2017 [19.11.2022] Page No.23 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.11.19 16:14:44 +0530 Ex.PW1/3.
Issue no.(ii) Whether the suit of the plaintiff is barred by Section 115 of The Indian Evidence Act, 1872? OPD
12. The onus of proving this issue was upon the defendant side. The plaintiff has accepted employment for further period after contractual period of Ex.PW1/2 vide Ex.PW1/3 with reduced retainer-ship fees and with further stringent conditions for payment of incentives. The plaintiff has accepted the said contractual employment vide Ex.PW1/3 despite non-payment of incentives claimable vide Ex.PW1/2. He had undisputedly worked for defendant company for contractual period of Ex.PW1/3 on payment of retainer-ship fees etc. as mentioned in Ex.PW1/3 for whole period of Ex.PW1/3 despite non-payment of incentives of Ex.PW1/2. In given circumstances, it can be said that the plaintiff has accepted the case of non-payment of incentives of Ex.PW1/2 by his acts. Plaintiff can also be said to have accepted the case of non-payment of incentives of Ex.PW1/2 by his omissions, since he has not been able to prove on record by any cogent evidence that he demanded incentives from the defendant at any time. But, one of the essential condition for applicability of law of estoppal is missing in this case. It is not the case of defendant that defendant Bharat Bhushan Gupta Vs. Bajaj Electricals Ltd. Civ.DJ No.547/2017 [19.11.2022] Page No.24 of 25 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.11.19 16:14:56 +0530 offered employment vide Ex.PW1/3 only due to acceptance of plaintiff of case of non-payment of incentives for period of Ex.PW1/2. It is not pleaded by defendant that it altered it position prejudicial to its interest due to acts/omissions of plaintiff qua period of Ex.PW1/2. Hence, suit could not be said to be barred by law of estoppal provided under Section 115 of The Indian Evidence Act, 1872. Hence, issue no.(ii) is decided in favour of plaintiff and against the defendant.
RELIEF
13. In view of above discussions and findings, the suit of the plaintiff is hereby dismissed. Parties are left to bear their own costs. Decree sheet be prepared accordingly. After preparation of decree-sheet, file be consigned to record room after due compliance. Digitally signed by HARVINDER HARVINDER SINGH SINGH Date:
Announced in open Court 2022.11.19
16:15:14 +0530
on November 19, 2022.
(HARVINDER SINGH)
PO:MACT-01/West,
THC/Delhi/19.11.2022
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