Delhi District Court
Shri Amit Kumar Srivastava vs Aptara Learning Pvt Ltd on 13 January, 2022
IN THE COURT OF MS NEENA BANSAL KRISHNA
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH EAST: SAKET COURTS, NEW DELHI
CS DJ No. 956/2018
Shri Amit Kumar Srivastava
S/o Late Sh. Ashok Kumar Srivastava
R/o G-41, Near Axis Bank ATM,
Harkesh Nagar, Okhla Phase-II
New Delhi-110020.
.... Plaintiff
Versus
Aptara Learning Pvt Ltd.
Flat No. 36, 3rd Floor,
Satkar Building
79-80, Nehru Place,
New Delhi-110019.
....Defendant
First date before this Court: 03.07.2018
Date of Order: 13.01.2022
JUDGMENT
1. This suit for recovery of Rs.3,09,878/- along with interest as arrears of salary, damages and compensation has been filed by the plaintiff against the defendant, his employer.
2. Facts in brief are that defendant had appointed the plaintiff as QC Executive vide letter of Appointment dated 06.12.2010. His salary was revised from time to time and he was last given increment vide letter dated 01.04.2015 and his emoluments were revised to Rs.30,183/- per month. The plaintiff has claimed that his honest, dedicated and skillful contributions promoted the performance of the Company from grass root to sky high despite which Shri Ajay Sharma, HOD of PPG Journals and Rajeev Sharma of Cambridge CS DJ No. 956/2018 Page 1 of 23 Group had highly inimical attitude towards him. They left no stone unturned to damage and defame the plaintiff. Their attitude compelled the plaintiff to write various email communications from 11.08.2015 to 06.01.2016 but they remained unreplied and uncomplied by the defendant. The plaintiff repeatedly requested the defendant for payment of salary and for assignment of work but to no avail.
3. He, out of mental harassment, provocation, misguidance and pressure created by Shri Rajeev Sharma and Shri Ajay Sharma, HOD tendered his resignation vide email dated 11.08.2015 even though he never intended to resign from the post. He withdrew his resignation vide his email dated 26.08.2015 at 9.33 pm before it was accepted by the defendant. He continued to perform his duties and mark his attendance through electronic punching card No. CIFA- 32131, Employee Code No. ZJ0, up till 03.02.2016 which is also recorded. The attendance of the plaintiff can also be verified from Time Watch print. The plaintiff has been completely unemployed since September, 2015. Despite sincere efforts to find a job from February, 2016 he was unable to get any job.
4. Hence, the plaintiff has claimed salary from the month of September, 2015 till February, 2016 @ Rs.30,183/- amounting to Rs.1,81,098/-; earned leave encashment of 48 days from December, 2010 to August, 2015 @ Rs.398.733 per day amounting to Rs.19,139/-; bonus @ Rs.5,400/- for three months amounting to Rs.16,200/-; interest @ 12% per month from September, 2015 to February, 2016 amounting to Rs.87,641/- and expenses on legal notice and follow-ups CS DJ No. 956/2018 Page 2 of 23 in the sum of Rs.5,800/-. The suit has been filed for recovery of Rs.3,09,878/- along with interest @ 2% per month and also damages and compensation for being unemployed during this period.
5. The defendant in its written statement took the preliminary objections that the plaint does not disclose any cause of action. It is further claimed that plaintiff had throughout been working at Noida, UP and this court has no territorial jurisdiction to entertain the suit. Furthermore, Civil Court is not the proper forum for adjudicating his claim for salary. There exists a relationship of employer and employee between the parties and the plaintiff is a Workman governed by Industrial Disputes Act. This court therefore has no jurisdiction and the suit is liable to be dismissed. It is further asserted that Section 14 and 41 E of Specific Relief Act bars the suit in respect of a dispute between employer and employee. The suit of the plaintiff is therefore liable to be dismissed.
6. On merits, all the assertions made in the plaint are denied.
7. The plaintiff in the replication has reaffirmed his case as stated in the plaint.
8. The issues on the pleadings were framed on 25.11.2019 as under :
i. Whether the plaintiff continued to be in the employment of the defendant and continued to perform his duties up to 30.02.2016? OPP ii. Whether the plaintiff is entitled to salary for the month of September, 2015 till February, 2016 amounting to Rs.1,81,098/-? OPP CS DJ No. 956/2018 Page 3 of 23 iii. Whether the plaintiff is entitled to perquisites by way of earned leave encashment in the sum of Rs.19,139/- w.e.f. December, 2010 to August, 2015? OPP iv. Whether the plaintiff is entitled to perquisites by way of bonus in the sum of Rs.5,400/- for three months amounting to Rs.16,200/-? OPP v. Whether the plaintiff is entitled to interest? If yes, at what rate and for what period? OPP vi. Whether the suit is not maintainable as it refers to an industrial dispute? OPD vii. Relief.
9. PW1 Shri Amit Kumar Srivastava, the plaintiff in support of his case appeared tendered his evidence by way of affidavit Ex.PW1/A. Letter of Appointment and other connected documents are Ex.D1 to Ex.D4A; the Increment letter dated 01.01.2021 (6 pages) is collectively Ex.PW1/1; Ex.PW1/2 to Ex.PW1/5 (already admitted and exhibited as Ex.D5, Ex.D5A, Ex.D5B, Ex.D5C) are the screen shots of Time Watch system; Certificate under Section 65B is Ex.PW1/6; various emails collectively are Ex.PW1/7; DVD in regard to attendance is Ex.PW1/8; ID card is Ex.PW1/9; legal notice dated 09.01.2016 is Ex.PW1/10; postal receipt is Ex.PW1/11; copy of the Notice under Order XII Rule 8 CPC dated 06.01.2020 is Ex.PW1/12; the postal receipt is Ex.PW1/13 and the tracking report showing its service is Ex.PW1/14; purchase vouchers are Ex.PW1/X (14 pages); and the copies of rent receipts are Ex.PW1/Y (8 pages).
10. DW1 Shri Soumitra De, authorized representative of CS DJ No. 956/2018 Page 4 of 23 Defendant Company tendered his evidence by way of affidavit Ex.DW1/A. The Authority letter to depose in the court is Ex.DW1/1; job description of the plaintiff is Ex.DW1/2; the screen shot of the Company portal is Mark X; copy of Company incorporation details is Mark X1; copy of letter dated 12.08.2015 for acceptance of resignation is Mark X2 and copy of courier receipt is Mark X3.
11. The detailed testimony of the witnesses shall be considered subsequently.
12. Learned counsel on behalf of the plaintiff has argued that though the resignation via email dated 11.08.2015 was tendered by the plaintiff on account of oppressive work environment created by Shri Rajeev Sharma and Shri Ajay Sharma but the same was withdrawn vide email dated 26.08.2015. The resignation letter was never accepted and no communication to this effect was ever received by the plaintiff. Even though the plaintiff consistently and repeatedly wrote emails to the defendant in regard to assignment of work and clarification about his continuation in job, he received no response. The plaintiff accordingly continued to attend the office till 03.02.2016 and is entitled to his salary till then.
13. It is further argued that the plaintiff has been unemployed since September, 2015 and has not been able to get any job despite best efforts purely because the relieving letter / NOC was never issued by the defendant Company. The plaintiff is thus entitled to salary from September, 2015 to February, 2016 in addition to compensation and damages.
14. It is further argued that Legal Notice was duly served on CS DJ No. 956/2018 Page 5 of 23 09.01.2016 which is Ex.PW1/10. The plaintiff has also claimed encashment of his EL as despite serving the Notice, the defendant has failed to produce his leave record. It is submitted that the plaintiff is entitled to decree of his suit.
15. Learned counsel on behalf of defendant has argued that plaintiff had always worked in Noida, UP and this court has no territorial jurisdiction to entertain the present suit. It is further submitted that the resignation tendered by the plaintiff was accepted on 12.08.2015 and he was duly informed about it vide letter Mark X2 which was duly served upon him through courier, receipt of which is Mark X3. Consequent to the acceptance of resignation the salary for the month of August, 2015 @ Rs.5,055/- for the number of days he had attended the office along with gratuity in the sum of Rs.34,505/- was credited to the account of plaintiff which is not denied by him. Once the resignation had been accepted and his account settled, the plaintiff is not entitled to salary till February, 2016 as claimed by him.
16. In the written arguments, it has been further submitted that plaintiff was a Workman as he had no supervisory administrative job as is admitted by him in his cross- examination. His job was essentially clerical and he qualifies as a Workman. It is submitted that this court has no jurisdiction as this case falls under Industrial Disputes Act. Learned counsel for defendant has placed reliance upon Col. (Retd.) Rama Krishna Sareen Vs. Pawan Hans Helicopters Ltd. W.P. (C) No. 4041, 5396 of 2014, 1613 of 2015 & CM APPL No. 14891, 10738, 10739 of 2014 decided on 11.09.2019 by Hon'ble High Court of Delhi;
CS DJ No. 956/2018 Page 6 of 23Devinder Singh Vs. Municipal Council, (2011) 6 SCC 584; Sarat Kumar Vs. Govt. of NCT of Delhi, AIR 2002 (6) 173; Bellish India Ltd. Vs. Presiding Officer, Labour Court, 2003 LLR 293; M/s V. L.T. Cargo Movers Pvt. Ltd. Vs. Shri Ajitkumar S. Puri LAWS(BOM)-2008-10-147; Chandrasekhara Sharma Vs. C. Krishnaiah Chetty Jewellers Pvt. Ltd. 2012 (4) KarLJ 279; Shankar Bhai Nathalal Prajapati Vs.Maize Products, 2003 LLR 112, Gujarat High Court; Sunita B. Vatsaraj Vs. Karanataka Bank Ltd. and Leena Patade Vs. Union of India, Ministry of Labour Bank Branch Manager / Officer of Bank; L.K.P. Merchant Financing Ltd. Vs. Govt. of NCT of Delhi & Ors.; Yogender Kumar Vs. B. R. Kohli, 2003 LLR 1042l Ashok Kumar Srivastav Vs. National Insurance Co. Ltd. & Ors. 1998 LLR 517; Uttar Pradesh State Bridge Corporation Ltd. & Ors. Vs. Uttar Pradesh Rajya Setu Nigam & Ors., 2004 LLR 289; Committee of Management, Dayanand Arya Kanya Degree College, Muradabad and Ors. Vs. Director, Higher Education, Allahabad, 1998 LLR 933; and North Zone Cultural Centre & Anr. Vs. Ved Pathy Dinesh Kumar, 2003 LLR 583.
17. I have heard the arguments and perused the record and the evidence led therein. My issue wise findings are as under :
FINDINGS ON ISSUE NO.6 :
Whether the suit is not maintainable as it refers to an industrial dispute? OPD
18. An objection had been taken by the defendant that job profile of the plaintiff brought him within the definition of a Workman and is governed by Industrial Dispute Act, 1947 CS DJ No. 956/2018 Page 7 of 23 and the present suit is not maintainable.
19. To appreciate the argument of learned counsel for the defendant, it would be pertinent to first refer to Clause 2(s) of Section 2 of Industrial Dispute Act, which defines workman as under : -
2(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, dischasrge or retrenchment has led to that dispute, but does not include any such person--
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950). or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
20. Hon'ble Supreme Court in Sharad Kumar Vs. Govt. Of CS DJ No. 956/2018 Page 8 of 23 NCT of Delhi, Appeal (Civil) 2622 of 2002 decided on 11.04.2002 explained that factors to be considered to determine if an employee is a workman can be stated as under :
(i) There must exist a relationship of employer and employee.
(ii) Any person employed to do any skilled or unskilled work, any manual, technical, operational, clerical or supervisory work for hire or reward;
(iii) The persons inter alia excluded are those who are employed mainly in a managerial or administrative capacity or
iv) in supervisory capacity drawing a salary of exceeding Rs.1600/- per month and exercises functions mainly of managerial nature.
21. In order to come within the meaning of the expression 'workman' in section 2(s) the person has to be discharging any one of the types of the works enumerated in the first portion of the section. If the person does not come within the first portion of the section then it is not necessary to consider the further question whether he comes within any of the classes of workmen excluded under the latter part of the section. To determine whether the person employed in an industry is a workman or not; not only the terms of the appointment in the job but also the nature of work performed by him are relevant considerations.
22. In S.K. Maini Vs. M/s. Carona Sahu Company Limited and others (1994) 3 SCC 510, Hon'ble Supreme Court observed that the determinative factor to ascertain whether CS DJ No. 956/2018 Page 9 of 23 or not an employee is a workman under Section 2(s) of the Industrial Disputes Act, is the main duties performed by him and not some works incidentally done by him.
23. In H.R. Adyanthaya and Others vs. Sandoz (India) Ltd.
And others 1994 (5) SCC 737 it was explained that if a person is held to be a workman under the ID Act he must be employed to do the work of any of the categories, viz., manual, unskilled, skilled technical, operational, clerical or supervisory. It is not enough that he is not covered by either of the four exceptions to the definition. Applying test as laid down in Burmah Shell's case (supra) it was held that an accountant is a workman.
24. The duties of the employee may be spelt out in the service rules or regulations or standing order or the appointment order or in any other material in which the duties assigned to him may be found. It has been consistently held that designation of employee was not of great moment and what was of importance was the nature of his duties. If the nature of the duties is manual or clerical then the person must be held to be a workman. On the other hand if manual or clerical work is only a small part of the duties of the person concerned and incidental to his main work which is not manual or clerical, then such a person would not be workman.
25. The precise question came up for consideration in Ananda Bazar Patrika (P) Ltd. v. Workmen, (1970) 3 SCC 248, wherein it was held as under:
"The question, whether a person is employed in a supervisory capacity or on clerical work, in our opinion, CS DJ No. 956/2018 Page 10 of 23 depends upon whether the main and principal duties carried out by him are those of a supervisory character, or of a nature carried out by a clerk. If a person is mainly doing supervisory work, but, incidentally or for a fraction of the time, also does some clerical work, it would have to be held that he is employed in supervisory capacity; and, conversely, if the main work done is of clerical nature, the mere fact that some supervisory duties are also carried out incidentally or as a small fraction of the work done by him will not convert his employment as a clerk into one in supervisory capacity."
26. Similar observations were made in Burmah Shell Oil Storage and Distribution Company of India Ltd. Vs. The Burma Shell Management Staff Association and others, 1970(3) SCC 378 & in Shankarbhai Nathalal Prajapati Vs. Maize Products, 2003 (96) FLR 829.
27. In the light of the above discussion on case laws, it needs to be considered whether the plaintiff comes within the definition of Workman.
28. The plaintiff has proved his offer Appointment letter dated 20.11.2010, Ex.D1 wherein it was mentioned that he was being offered position of Executive (QC) on an Annual compensation of Rs.2,91,270/-. The Offer was accepted by the plaintiff and letter of Appointment Ex.D2 dated 06.12.2010 was issued in his name. The structure of compensation and Increment letter dated 01.04.2015 is Ex.D3 and the salary for the month of April 2015 is Ex.D3A, for July 2015 is Ex.D4.
29. The plaintiff has further explained that the hierarchy of his department was Vice President, Head of the Department, Facilitator (GL), Executive Quality Control. The name of CS DJ No. 956/2018 Page 11 of 23 his project was Cambridge and his reporting was to the Head of Department but for few jobs he also had to report to Facilitator (GL). There are 4 to 5 Quality Controllers and Proof Readers and Computer Operators under him. He stated that Girish was Computer Operator and Mr. Giri was also in Cover Department. Though he claimed that they were working under him, but admitted that he had no power to sanction their leave as it was exclusively done by Head of Department. The work of roistering was also of Facilitator (GL), though he could make a request to HOD for appropriate change. He admitted that he did not have any authority to change or transfer any employee. He claimed that he had power to allocate the job to the specific person regarding nature of job though he had no proof thereof.
30. It is admitted by the plaintiff that he was appointed as QC Executive. Now what is required to be considered is his nature of job to ascertain if he comes within the definition of Workman. It is admitted by plaintiff as PW-1 in the cross examination that his nature of duty was approving of samples, issue checking, cover and design (graphics) development checking, for which he held authority to approve as per client's requirement design (graphics) development checking meant to develop cover page of the book and journal. Also, it includes assembling of various chapters in the books and articles for Journal. It is explained that the first step is typing and coding of the document and then Proof Reader verifies and then Quality Controller checks the graphics and contents of the document. Thereafter, the document comes to the Executive Quality CS DJ No. 956/2018 Page 12 of 23 Controller for finally sending it to the client.
31. The plaintiff has admitted that as Executive Controller, he was not empowered to give any inputs in the said document. All the contents of the documents are required to be kept intact as per the manuscript and the designing instructions given by the client. His testimony establishes that the finalization of a manuscript goes through various steps which are taken care of by the chain of persons so designated. He finally scrutinizes the document to verify if everything is in order before sending it to the Client. The work of the plaintiff was only to approve the samples, checking issue cover and design as per client's requirement. He is the last person in the chain doing his assigned work and had no administrative or supervisory role whatsoever which was being enjoyed by the Head of the Department or other seniors in the Department. It is evident that the plaintiff had no administrative/ managerial job.
32. So far as the supervisory role is concerned, the term contemplates direction and control. What is required to be considered are the primary duties with which he was concerned. For him to claim supervisory role, it is necessary that there are some persons who work under him whose work is required to be supervised. He being one link in the chain of persons doing their respective job, would not satisfy the test of his being a supervisor.
33. In Anand Regional's case (supra) the nature of work of Assistant Executive in the Quality Control department came CS DJ No. 956/2018 Page 13 of 23 up for consideration wherein he claimed his work to be supervisory in nature. However, considering his nature of work being only to check and quality control, it was held that he cannot be termed as a supervisor and was held to be a workman.
34. In the present case as well, the nature of job as admitted and described by the plaintiff clearly shows that his work was essentially clerical in nature and was not administrative, managerial or supervisory in nature. He is shown to be a Workman and therefore, would be governed by Industrial Dispute Act, he cannot claim relief under section 9 of Code of Civil Procedure and his suit is not maintainable.
Issue No.6 is therefore, decided in favour of the defendant and against the plaintiff.
FINDINGS ON ISSUE NO:-1 Whether the plaintiff continued to be in the employment of the defendant and continued to perform his duties up to 30.02.2016 (28.02.2016)?
35. It is an admitted case of the parties that the plaintiff was appointed as Executive QC in the defendant company in December 2010 and he has continued to be in employment till 2015. He was given Increment vide letter dated 01.04.2015, Ex.D3 and his emoluments were also revised w.e.f. 01.04.2015 vide letter Ex.D3A. His salary slip for April 2015 and July 2015 are Ex.D4 and Ex.D4A.
36. The plaintiff has claimed that he continued to be in the job till February,2016 while according to the plaintiff he resigned in August,2015 and ceased to be on the pay rolls of CS DJ No. 956/2018 Page 14 of 23 the Defendant Company.
37. The plaintiff has deposed that because of the harassment, agony and humiliation and inimical attitude of Ajay Sharma, HOD and Rajeev Sharma of Cambridge Group who left no stone unturned to damage and defame plaintiff and due to compelling circumstances and pressure from superiors, he was forced to tender a notice of resignation vide email dated 11.08.2015. However, the plaintiff never intended to resign from his job and withdrew the same vide email dated 26.08.2015 at 9:33 pm before the resignation was accepted by the defendant company. Various other emails written by him to defendant Company are Ex.PW1/7 (Colly) and Certificate under section 65B of Indian Evidence Act is Ex.PW1/6.
38. The first material document to be considered is the email dated 11.08.2015 vide which the notice of resignation was submitted by the plaintiff. It was mentioned in the said email that he was given an opportunity to serve in the Company as QC and was to be promoted to responsible post of Project Manager and appeared in the interview up to third round and was even short listed but he was informed that QC of Cambridge group has left and he was transferred to Cambridge group due to lack of manpower and was referred to as the best person for the work. He first got introduced to Rajeev Sharma in February, 2015 and he informed Mr. Rajeev Sharma that he would be taking a planned leave of approximately 2 weeks in September, 2015 as he goes to pilgrimage of Holy Manimahesh Kailash Parikrma in Chamba since last two year. At that time Mr. Rajeev was CS DJ No. 956/2018 Page 15 of 23 appreciative of his transparency in leave taking habits. The leave was sought much in advance in the month of April itself. Unfortunately, he was down with diarrhea on 05th May 2015 and when he informed Mr. Rajeev, he ordered him to join back the duty. Plaintiff informed him that due to sudden weakness the doctor has advised him to take rest for 2-3 days and he could not join. When he finally returned to his job on 18th May, Mr. Rajeev was very angry and when his Medical Certificate was rejected and was referred to HR Department to be deputed to some other department. However, HR department referred him back to the same Department. His two days sick leave was made without pay and while he requested that he may not be punished economically he was scolded and was told to go to VP to DC for his redressal. His planned leave for which he had applied in April was rejected by Mr. Rajeev. This rejection of his Pilgrimage leave hurt his religious sentiments, faith and belief. He thus, served his resignation by way of this Notice of 25 days starting from 11.08.2015 to be ending on 04.09.2015. He also requested for clearance and settlement of his gratuity as per Company rules and also to release his salary for the month of August. However, the plaintiff again sent an email dated 26.08.2015 stating that his resignation was offered in the heat of the movement, out of misguidance and extreme provocation inflicted upon him by his previous senior because of some jealousy towards his performances and diligent work and the same stands completely withdrawn.
39. According to the plaintiff, he had tendered his resignation CS DJ No. 956/2018 Page 16 of 23 vide email dated 11.08.2015 and had given a notice time of 25 days but before the same was accepted he withdrew his resignation vide email dated 26.08.2015.
40. The defendant has however, taken a plea that his resignation was duly accepted. The defendant in support of their defence examined DW1 Soumitra De who in his examination in chief vide affidavit Ex.DW1/A stated that the resignation of the plaintiff was accepted on 12.08.2015, copy of which is Mark X and the same was communicated to the plaintiff vide courier receipt Mark X3. Interestingly there is no mention of this letter of acceptance of resignation in the written statement. The written statement was casual and evasive wherein all the submissions made in the plaint were simply denied and no defence was put forth except of the plaintiff being a workman. It was nowhere specifically pleaded that letter of acceptance was ever sent to the plaintiff. So much so, even the original record pertaining to the resignation letter and proof of its service has not been proved by DW1 and only photocopies have been placed on record.
41. Learned counsel on behalf of the plaintiff during the arguments has pointed that when the courier receipt Mark X3 was verified on Track report, it was found to be a fake document. The defendant has not been able to prove the formal letter of acceptance of resignation. However, the question which comes up for consideration is whether there was any period of Notice prescribed in the terms of appointment for tendering resignation.
CS DJ No. 956/2018 Page 17 of 2342. Letter of appointment, Ex.D2 in its clause 6 reads as under :
"6. That after confirmation, except as otherwise set forth herein, your services may be terminated by either side by giving one month's notice in writing, or payment of Basic Salary or notice in lieu thereof. If you are in moral breach of your responsibilities then your services can be terminated without giving any notice period or Basic Salary in lieu of that."
43. From clause 6, it is apparent that either party must give at least one month's Notice to terminate the services but in case the requisite period of notice is not given, the same can be compensated by way of one month's salary. Notice period is therefore, not mandatory. The plaintiff admittedly sent his resignation vide email dated 11.08.2015 claiming it to be a Notice of 25 days. This notice period is not in accordance with the letter of appointment. Even otherwise, though it is stated to be a Notice of resignation but the plaintiff had categorically stated that his salary for the month of August along with gratuity may be finalized.
44. DW1 Soumitra De in his affidavit has explained that it was immediately accepted and a sum of Rs.5,055/- as salary for the month of August for the number of days he had attended the office and gratuity in the sum of Rs.34,505/- was credited to the account of the plaintiff, a fact which has not been disputed by the plaintiff in his cross examination. He has been elusive in his response that he was not aware if the said amount had been credited in his account or if it was towards his full and final claim. The defendant had the option of waiving the notice period which was done as is evident from the evidence of plaintiff itself. The salary for the month of August, 2015 as well as his gratuity was CS DJ No. 956/2018 Page 18 of 23 credited to his account immediately on receiving his resignation Letter. Though no formal acceptance by way of Letter is proved but it is established from its conduct in crediting the dues towards full and final settlement that the resignation letter tendered by the plaintiff was duly acted upon by the defendant.
45. The plaintiff has claimed that he in the month of September had written various emails which are collectively Ex.PW1/7 seeking information from the defendant Company to clarify if his resignation has been accepted. He had also written that on oral inquiry from Mr. Nadim, he came to know that his resignation has not been accepted and he continued to go to the office. He kept writing emails informing them about his leave from time to time till 06.01.2016.
46. The plaintiff has claimed that he continued to be in the employment of the defendant and was reporting to the duty as can be verified from his Time Watch details, the screen shots of which for the period 21.09.2015 to 04.10.2015 is Ex.PW1/2, from 01.10.2015 to 07.10.2015 is Ex.PW1/3, from 01.10.2015 to 08.10.2015 is Ex.PW1/4 and from 01.10.2015 to 09.10.2015 is Ex.PW1/5 which is supported by Certificate under section 65B of Indian Evidence Act, Ex.PW1/6.
47. However, it would be pertinent to refer to his own email dated 16.10.2015 wherein he had stated that he had gathered an official knowledge on 04.09.2015 from shift facilitator Mohd. Nadeem that the Company had decided to completely reject his Notice period for the resignation that was sent vide email dated 11.08.2015. He himself has CS DJ No. 956/2018 Page 19 of 23 further stated that his Time Watch Authorized User Login has been completely withheld without any information which had prevented him to check his leaves and attendance status. While the plaintiff in his evidence has claimed that he has been attending the office regularly but his own document and email dated 16.10.2015 clearly reflect that his Time Watch Authorized User Login had been disabled. Not only this, he in his email dated 24.10.2015 has further sought clarification and highlighted that he is not getting his salary which is causing heavy financial burden and that though he is going regularly to the office he sits alone in solitary HR cabin, office cafeteria or Aptara play ground. He himself has mentioned in his various specific emails that he was not being given any work.
48. From his own admissions made in the various emails as well as in his cross examination, it clearly emerges that immediately on sending the resignation Notice vide email dated 11.08.2015, his resignation was accepted and his salary dues and gratuity dues were immediately credited to his account in August, 2015 itself. Furthermore, the intimation of acceptance of resignation on the part of the defendant got reflected when his dues were credited to his account; his Time Watch Authorised User Login was disabled and he was not given any work in the office. The plaintiff may have visited the Office of the defendant from time to time but it is evident that he was not allowed to be in his place of work discharging his duties as the official of the defendant Company. The screen shots and the various e mails of the plaintiff also establish that he was not going CS DJ No. 956/2018 Page 20 of 23 regularly nor were they any fixed hours. Mere presence on some days in the office cannot establish his claim of being in continued service till February,2016 more so when he himself has asserted that he last visited the Office on 6th January, 2016. He has produced some screen shots of Time Watch but it is his own admission that his user login was disabled.
49. The admissions of the plaintiff prove that his resignation got accepted in the month of August, 2015 itself and his balance salary and gratuity was credited to his account despite which the plaintiff specifically tried to withdraw the resignation and to resume his Office. It is the fundamental law that there has to be an offer and acceptance. The plaintiff admittedly tendered his resignation which would not have been valid unless it was accepted and communicated. It is no doubt true that defendant have not been able to prove the formal letter of acceptance of resignation but its intention of acceptance was clearly communicated to the plaintiff from its conduct when the balance salary and dues were credited and his access to time watch user login was disabled and no work henceforth was sanctioned to him. The resignation once accepted amounted to termination of job of the plaintiff w.e.f. 11.08.2015. The subsequent conduct of the plaintiff would not put back the hands of time as the resignation already stood accepted before he withdrew it. It is therefore held that the plaintiff ceased to be in the employment of the Defendant Company from date of his tendering the resignation vide email dated 11.08.2015.
CS DJ No. 956/2018 Page 21 of 23Issue no.1 is therefore, decided against the plaintiff and in favour of the defendant.
FINDINGS ON ISSUE NO : - 2 Whether the plaintiff is entitled to salary for the month of September, 2015 till February, 2016 amounting to Rs.1,81,098/-? OPP
50. It is held in issue no.1 that the employment of the plaintiff seized since August 2015. Thus, he is not entitled to salary for the period September 2015 till 2016 amounting to Rs.1,81,098/-.
Issue no.2 is therefore, decided against the plaintiff.
FINDINGS ON ISSUE NO: - 3 Whether the plaintiff is entitled to perquisites by way of earned leave encashment in the sum of Rs.19,139/- w.e.f. December, 2010 to August, 2015? OPP
51. The plaintiff has claimed perquisites by way of Earned Leave encashment in the sum of Rs.19,139/- w.e.f. December 2010 to August 2015. The record of EL was with the defendant and a notice under section 12(8) C.P.C. Ex.DW1/P1 dated 29.10.2021 was served upon the defendant to produce the leave record. DW1 has admitted in his cross examination that he had received the Notice but has failed to produce the leave record of the plaintiff. It is therefore, held that plaintiff is entitled to EL encashment in the sum of Rs.19,139/- as claimed by him.
Issue no.3 is therefore, decided in favour of the plaintiff.
CS DJ No. 956/2018 Page 22 of 23FINDINGS ON ISSUE NO : - 4 Whether the plaintiff is entitled to perquisites by way of bonus in the sum of Rs.5,400/- for three months amounting to Rs.16,200/-? OPP
52. The plaintiff has claimed bonus for 3 months @ Rs.5,400/-
per month amounting to Rs.16,200/-. However there is no Bonus policy of the defendant company produced by the plaintiff nor is there any mention of any bonus in the appointment letter or elsewhere. The plaintiff has also not led evidence to prove that he had ever got bonus at the given rate in the previous months or years. The plaintiff has failed to prove that he is entitled to bonus as claimed.
Issue no.4 is therefore, decided against the plaintiff.
FINDINGS ON ISSUE NO : - 5 Whether the plaintiff is entitled to interest? If yes, at what rate and for what period? OPP
53. In view of the findings on Issues no.1 to 4, the plaintiff is not entitled to any interest.
RELIEF:
54. In view of the discussions made hereinabove, the suit of the plaintiff is hereby dismissed.
55. Parties to bear their own costs. Decree Sheet be prepared accordingly. File be consigned to Record Room.
Announced thin the open court today i.e. 13 January, 2022 (Neena Bansal Krishna) Principal District & Sessions Judge South-East District, Saket Courts, New Delhi.
CS DJ No. 956/2018 Page 23 of 23