Delhi District Court
Avinash Gupta vs M/S. Hella India Automotive Pvt. Ltd on 23 May, 2023
1
IN THE COURT OF MS. TWINKLE WADHWA:
ADDITIONAL DISTRICT JUDGE 04 - SOUTH EAST
DISTRICT, SAKET COURTS, NEW DELHI.
CS DJ No. 10859/2016
AVINASH GUPTA
R/o. A-94, Ground Floor,
The Palladians, Sector-47,
May Field Garden,
GURGAON - 122018 ....Plaintiff
VERSUS
M/S. HELLA INDIA AUTOMOTIVE PVT. LTD,
(previously Known as Hella India Electronics Pvt. Ltd.
(Having its Registered office at)
K-61B, LGF, Kalkaji,
New Delhi-110 019 ....Defendant
Date of institution of suit : 08.08.2016
Judgment reserved on : 19.05.2023
Judgment announced on : 23.05.2023
Final Decision : Dismissed.
SUIT FOR RECOVERY OF RS. 07,08,000/-
JUDGMENT
1. The present is a suit filed by plaintiff for recovery of Rs. 07,08,000/- against the defendant company for recovery of Bonus.
CS No. 10859/2016 2 The Case of plaintiff
2. It is the case of plaintiff that plaintiff was appointed as Head of Business Division in the defendant company vide appointment letter dt 28.11.2011 on a monthly salary of Rs. 3.75 Lacs. As part of his salary, the plaintiff was also entitled to bonus amounting to Rs. 4,50,000/-. The plaintiff worked with the defendant company till 03.09.2015.
3. The defendant company is engaged in the business of supplying electronic components and other automotive components to the Indian automotive market. The defendant company is a 100% subsidiary of Hella KGaA Hueck & Co. of Germany.
4. It is averred that during the entire tenure of his employment, the plaintiff performed his duties diligently and his work was appreciated. The plaintiff has been given performance bonus for the financial year 2011-2012 amounting to Rs. 2,86,050/-, for the financial year 2012- 2013 amounting to Rs. 4,04,650/- and for the financial year 2013-2014 amounting to Rs. 4,49,850/-. Lastly the salary of plaintiff was revised on 14.01.2015 to Rs. 59,54,064/- per annum. The financial year of the defendant company is from 01st June to 31st May each year which is as per the Financial Year of the parent company in Germany.
CS No. 10859/2016 35. It is submitted that since the plaintiff worked with the defendant company from 01.06.2014 to 31.05.2015, the plaintiff is entitled to bonus under the bonus scheme by the name of Hella International Bonus system (hereinafter referred to as HIBS) for the said year. The plaintiff was informed by the defendant company that he is entitled to HIBS/performance bonus for this year amounting to Rs. 6 Lacs.
6. The plaintiff decided to leave the defendant company in the year 2015. Vide letter dt 03.09.2015, the defendant company relieved the plaintiff and issued a 'No Objection certificate' to the plaintiff. As the plaintiff was not paid the performance bonus while he was relieved from the company, hence the present suit is filed by the plaintiff.
7. It is averred that initially it was informed by the defendant company that they were reconciling their accounts but they failed to revert back. The plaintiff has been regularly following up with the defendant company but of no use. Even certain emails were exchanged between the parties but the defendant company did not make the payment.
8. It is submitted that the defendant has refused to make payment on the pretext that plaintiff was not on the CS No. 10859/2016 4 pay rolls of the defendant company in November, 2015 when the HIBS/performance bonus is distributed and hence he is not entitled to the said bonus as per the Company's Policy. It is submitted that the said stand of the defendant company is completely an afterthought. It is submitted that there is no such policy of the defendant company. The plaintiff had called upon the defendant to supply the copy of the policy under which HIBS/performance bonus is declined to him but the same has not been supplied to him till date.
9. It is pleaded that the plaintiff being Business Head of the defendant company is aware that there is no such policy of the defendant company. Hence the plaintiff sent a legal notice dt 16.05.2016, calling upon the defendant to make the payment but no payment has been made. Hence the present suit is filed for recovery of principal amount alongwith interest @ 18% p.a from 01.06.2014 to 31.05.2015.
The case of defendant
10. In the Written Statement filed by the defendant company, it is pleaded that the present suit is filed by the defendant company through its duly authorised representative Sh. Shikhar Goel. It is the case of defendant that the defendant company has a bonus scheme by the CS No. 10859/2016 5 name of HIBS (Hella International Bonus system)/performance bonus and the same is applicable to all its Managerial level employees. The plaintiff is well aware of this policy. It is submitted that as per clause 2.4 of the said scheme, the plaintiff is not entitled to claim any 'Performance Bonus' as he himself resigned and his account has been settled in full and final.
11. It is submitted that the performance of each and every Managerial Employee of the defendant company is analyzed by its Parent Company at Germany and the performance of the Managerial employee who are not on the rolls of the defendant company in the month of November each year, is neither analyzed nor considered for payment of HIBS/performance bonus. It is further submitted that performance of the plaintiff during the financial year 2014-2015 was also not up to the mark.
12. It is pleaded that the plaintiff was entitled to 'Variable Pay' as per para 4 of his Appointment Letter but subject to HIBS. It is submitted that Variable Pay is not a part and parcel of his salary/CTC of the company and thus the plaintiff cannot claim it as a matter of right. It is the discretion of the employer and the same has to be earned by an employee. It is further submitted that even otherwise the payment of HIBS/performance bonus can be revoked CS No. 10859/2016 6 at any point of time by the defendant company and the same cannot be claimed as a matter of right. It is denied that any bonus is payable to the plaintiff.
13. In the replication, the plaintiff has reiterated the contents of the plaint and has refuted the contents of the Written Statement.
Issues and Evidence
14. From the pleadings of the parties, following issues were framed by Ld. Predecessor of this Court vide Order dt 25.08.2017:-
1.Whether the plaintiff is entitled to recover from the defendant an amount of Rs.7,08,000/ or any other amount along with interest, pendente lite and future @18% per annum or at any other rate from the defendant on the basis of the grounds taken in the plaint ? OPP
2.Whether the suit of the plaintiff for recovery of money is not maintainable as the plaintiff is not entitled to claim any performance bonus in terms of HIBS Scheme as he had voluntarily resigned from the services of the defendant company and was relieved on 03.09.2015 ? OPD
3. Whether the suit of the plaintiff for recovery of money against the defendant is without any cause of action ? OPD
4.Relief.
15. Plaintiff in support of his case has examined himself as PW1. He tendered his evidence by way of affidavit Ex.PW1/A and relied upon the following documents:
CS No. 10859/2016 7i). Appointment Letter dt 28.11.2011 Ex.PW1/1
ii). Copy of letter dt 01.11.2012 Ex.PW1/2
iii).Copy of letter dt 11.11.2013 Ex.PW1/3
iv). Copy of letter dt 01.11.2014 Ex.PW1/4
v). Copy of letter dt 14.01.2015 Ex.PW1/5
vi). Copy of certificate dt 03.09.2015 Ex.PW1/6
vii). Copy of email dt 11.10.2015 Ex.PW1/7
viii).Copy of email dt 12.03.2015 Ex.PW1/8
ix). Copy of email dt 09.12.2015 Ex.PW1/9
x). Copy of email dt 09.12.2015 Ex.PW1/10
xi). Copy of email dt 12.02.2016 Ex.PW1/11
xii).Copy of email dt 10.03.2016 Ex.PW1/12
xiii).Copy of email dt 13.03.2016 Ex.PW1/13
xiv).Copy of email dt 15.03.2016 Ex.PW1/14
xv). Copy of email dt 16.04.2016 Ex.PW1/15 xvi).Certificate u/s. 65-B of IEA Ex.PW1/16 xvii). Copy of notice dt 16.05.2016 Ex.PW1/17 xvii). Postal receipts Ex.PW1/18 xix). Proof of delivery Ex.PW1/19
16. Defendant in support of its case has examined Sh.
Shikhar Goel as DW1. He tendered his evidence by way of affidavit Ex.DW1/A and relied upon the following documents:
i). Incorporation certificate of defendant company Ex.DW1/1 ii). Copy of the authority letter Ex.DW1/2 iii). Copy of extracts of Board Resolution Ex.DW1/3 iv). Certificate U/s. 65-B of IEA Ex.DW1/4.
17. DW2 is Sh. Brajesh Kumar, HR Operational Head of defendant company. He tendered his evidence by way of CS No. 10859/2016 8 affidavit Ex.DW2/A. He supported the case of defendant company and relied upon the following documents:-
i). Copy of HIBS of defendant company Ex.DW2/1
ii). Copy of full and final settlement of plaintiff Ex.DW2/2 Arguments of Ld. Counsel for plaintiff
18. It is argued by Ld. Counsel for plaintiff that a bare perusal of the issues framed in the matter would show that the onus to prove issue no. 2 & 3 was upon the defendant to prove any such policy. It is further argued that the plaintiff has shown on record that his bonus was approved by the defendant and the onus was upon the defendant to prove that the plaintiff is not entitled to any such bonus. It is argued that any such person who comes to depose before the Court, must have authority from the company to depose. It is the company who answers and not an employee. It is argued that the two pages policy which has been filed on record is a mere computer print out which is not even signed by any employee/AR or bearing the stamp of the company. It is argued that it is not mentioned whose signatures this two page policy bears. It is submitted this this policy was exhibited by DW2 who was not authorised to depose before Court. It is further argued that this not a complete policy.
CS No. 10859/2016 9Arguments of Ld. Counsel for defendant
19. It is submitted by Ld. Counsel for defendant that plaintiff was well aware of the HIBS/Performance Bonus policy and the same is also mentioned in his Appointment Letter. It is further submitted that in reply to para 5 of the W.S, in its replication, it is admitted by the plaintiff about HIBS/Performance Bonus policy. It is argued that if this is not the HIBS/Performance Bonus policy, which defendant has placed on record then which is the policy on which the plaintiff is relying. Various emails filed by plaintiff are filed on record thereby showing that the plaintiff was talking of payment on pro-rata basis under HIBS/Performance Bonus policy. It is submitted that plaintiff has always been aware of this policy.
20. Attention of the Court is drawn to cross-
examination of the plaintiff wherein he has admitted that he is aware of HIBS/Performance Bonus policy and that it is part of Variable Pay. Further it is submitted that the defendant has also placed on record Minutes of Meeting Ex.DW1/6 wherein one of the witness namely Sh. Shikhar Goel has been authorised to depose in the Court. It is further argued that not every employee of the company who comes to depose in the Court must have Board Resolution in his favour. Onus was upon the plaintiff to CS No. 10859/2016 10 prove his case.
21. I have heard the arguments of both the sides and have gone through the record of the case. Findings of the Court
22. It is the case of plaintiff that he is entitled to Performance Bonus for the financial year 01.06.2014 to 31.05.2015 as he worked with the defendant company during this period. Further, it is pleaded that he is not aware of any such policy by the name HIBS/Performance Bonus for payment of Bonus. It is pertinent to quote here clause 4 of the Appointment Letter of the plaintiff which is as follows:
"4.Variable Pay The company recognizes the importance of rewards linked to the performance and efforts made by individuals towards achieving business goals and objectives. You will be entitled to participate in Hella International bonus scheme."
23. Further, in Annexure A, which is the salary structure annexed with the Appointment Letter, there is a head in the salary structure"Hella International Bonus (Variable)".
24. Hence perusal of above clause would show that plaintiff was aware of such policy of the defendant. Further the plaintiff is not a low level employee who can claim that he was not aware of what is written in his Appointment Letter or mentioned in his salary slip/salary structure. He CS No. 10859/2016 11 was appointed as 'Head of Business Division', hence it is unbelievable that he was not aware of the Bonus Scheme.
25. Further plaintiff has placed on record various letters by way of which bonus was given to him during past years. It is mentioned in these letters that Bonus will be given to him alongwith 'November Salary'. Perusal of various letters Ex.PW1/2, Ex.PW1/3, Ex.PW1/4 would show that it is specifically mentioned in these letters that bonus was payable to him alongwith 'November Salary'. Hence there is evidence on record to infer that it was within the knowledge of the plaintiff that this bonus is payable with the salary for the month of November every year. Further, this bonus is shown as 10% of CTC approximately in his annual salary break-up as well.
26. Further, perusal of various emails Ex.PW1/7, Ex.PW1/8, Ex.PW1/9 and Ex.PW1/10 would show that he was aware of HIBS/Performance Bonus and payment of the same on Pro-rata basis. However, perusal of the later emails would show that he has feigned ignorance towards this policy and had asked for the copy of it, which does not inspire much confidence. In Para 5 of the W.S, defendant has mentioned about clause 2.4 of the HIBS Policy which is as follows:
CS No. 10859/2016 12"2.4 Paying out of the individual performance bonus The performance bonus is a gross payment and is paid out after the annual financial statements have been drawn up and passed i.e., if the time period of the fiscal year is unchanged, in November of each year. A claim to the performance bonus exists only under the prerequisite that the employee is still a member of the company at the payment time (exception: leaving the company for reasons of age). Unpaid absences as well as period of unfitness for work with a claim to sick pay or bridging benefits will result in time- based pro-rata reductions or to the complete loss of the performance bonus payable."
27. In his replication to this paragraph, it is mentioned by the plaintiff as follows :
"In reply to para 5 of the preliminary submissions/objections of the written statement it is submitted that the contents of the same are all wrong, false and denied. It is submitted that the defendant company has a bonus scheme by the name Hella International Bonus System (HIBS) and the plaintiff during his course of employment with the defendant company had been receiving bonus as per HIBS but the HIBS of the defendant company did not contain any clause as referred to by the defendant company in the corresponding para of the written statement filed by it. There is no term and condition in the letter of appointment of the plaintiff which provides that he would be entitled to HIBS only if he was on the payroll of the company in the month of November of the subsequent year."
28. Hence perusal of the replication would show that the plaintiff was aware of HIBS/Performance Bonus but he submits that the policy does not contain any such clause. If it is the case of plaintiff that there is any other CS No. 10859/2016 13 policy which does not contain any such clause, he could have filed the same on record but he did not file the same. Once it is proved on record and is evident from various documents and pleadings of the plaintiff that he was aware of HIBS/Performance Bonus policy, he cannot feign ignorance with respect to that particular clause which is not favourable to him.
29. There are objections raised with respect to exhibition of this policy on record. It is submitted that the policy has been exhibited through DW2-Sh. Brajesh Kumar, but he has no authorization in this favour to depose. However, it is noted that the present plaint has been filed through DW1-Sh. Shikhar Goel, who is duly authorised to file the present suit. This document is filed alongwith the W.S. on record. DW1-Sh. Shekhar Goel has deposed as DW1 as well, hence it cannot be said that this documents is not filed through duly authorised representative of the defendant company. Further it is not necessary that every employee of the company must have Board Resolution in his favour. The plaint is filed through Sh. Shekhar Goel who has authorisation in his favour and he is also examined as DW1. In such circumstances, it cannot be said that the Policy could not have been exhibited through DW2-Sh. Brajesh Kumar, who is H.R CS No. 10859/2016 14 Operation Head of the defendant Company, rather it is H.R Head who must be well-versed with the policy regarding the employees.
30. Further DW1 has filed certificate u/s. 65-B of Indian Evidence Act on record to prove all the documents filed by him alongwith W.S, printout of the said documents were taken by him from the computer system under his supervision. Further, DW2 has stated that he has personally handled the case of plaintiff as well. Further as far as the argument that the policy does not bear the signatures of any employee or AR/stamp of defendant company is concerned, the policy has been duly proved on record, which is filed alongwith the W.S. The W.S is signed by duly authorised AR of the Company. Certificate u/s. 65-B of Indian Evidence Act is filed on record. Further if it is the arguments of the counsel for plaintiff that the policy is not complete or it is not the policy of the defendant company, then the burden is on the person who asserts that fact. It is the plaintiff who asserts that it is not correct and complete policy. Hence the burden was upon the plaintiff to file the correct policy on record.
31. It is observed in case titled as Pawan Kumar Dalmia and Ors Vs. HCL Infosystems Ltd and Ors - RFA Nos. 180, 235 and 239/2004 decided on 13.03.2012, CS No. 10859/2016 15 relevant excerpt of which is as follows:
"9. One of the arguments urged on behalf of the appellant is that the written statement was not signed by a duly authorized person and therefore the same could not have been looked into. This argument is a wholly frivolous argument because the legal position in this regard is well settled after the decision of the Supreme Court in the case of United Bank of India vs. Naresh Kumar & Ors. AIR 1997 SC 3 and which is that suits which are filed by companies should not be dismissed on technical grounds, once those suits are contested to the hilt, i.e. right till the end. The ratio of the judgment in the case of United Bank of India (supra) will also squarely apply even where a company is a defendant i.e. to the facts of the present case as the defences contained in the written statement of a company cannot be ignored on a mere technical plea of lack of authority in the person inasmuch as all the suits have been contested to the hilt, evidence led by both the parties, witnesses of both the parties have been extensively cross examined and thereafter the matter was argued in detail resulting in passing of the final judgments in these suits. I may for the sake of completeness state that there is an original power of attorney available in the file, and so also noted by the trial Court, which allows the contesting of the suits by one Mr. H. N .Mathur and the written statement bears the signature of said Mr. H. N. Mathur.
10. One other argument urged on behalf of the appellant was that the witness who deposed on behalf of the defendant no.1/respondent no.1- company was not authorized by any board resolution to give evidence. This argument is misconceived inasmuch as evidence of a person is governed by the Evidence Act, 1872, and any person who is aware of the facts of the case and whose evidence would be a relevant evidence in terms of the Evidence Act, 1872, is competent to depose. A witness can depose as per facts in his knowledge or as per records. There is no provision in the Companies Act, 1956 or in the Evidence Act, 1872 which requires that a witness who appears on behalf of the company can only depose if there is a resolution of the Board of Directors of the company permitting him to depose on behalf of the CS No. 10859/2016 16 company. This argument of the appellant is therefore rejected."
32. In view of the above discussion, HIBS policy Ex.DW2/1 is duly proved on record by defendant company through DW1 and DW2. The plaintiff has failed to prove which is the correct policy of the defendant company, if not the present one. Hence in view of the policy proved on record, the plaintiff is not entitled to any HIBS/Performance Bonus and the same was declined to him as per the policy of the defendant company only.
33. In view of the above, it has been proved on record that as per the HIBS/Performance Bonus policy, the plaintiff is not entitled to any HIBS/Performance Bonus and the same was rightly declined to him. Findings on the issues framed:
1. Whether the plaintiff is entitled to recover from the defendant an amount of Rs.7,08,000/ or any other amount along with interest, pendente lite and future @18% per annum or at any other rate from the defendant on the basis of the grounds taken in the plaint ? OPP In view of the above discussion, the plaintiff is not entitled to any amount from the defendant company towards HIBS/Performance Bonus. This issue is accordingly decided against the plaintiff.CS No. 10859/2016 17
2. Whether the suit of the plaintiff for recovery of money is not maintainable as the plaintiff is not entitled to claim any performance bonus in terms of HIBS Scheme as he had voluntarily resigned from the services of the defendant company and was relieved on 03.09.2015 ? OPD AND
3. Whether the suit of the plaintiff for recovery of money against the defendant is without any cause of action ? OPD In view of the above discussion, it is proved that plaintiff is not entitled to any bonus as per HIBS/Performance Bonus scheme of defendant company. These issues are accordingly decided against the plaintiff.
4. Relief.
In view of the above discussion, the plaintiff has not been able to prove its case and the suit of the plaintiff is accordingly dismissed.
In view of the findings on the above-said issues, the suit of the plaintiff is dismissed. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in open Court 23.05.2023.
(TWINKLE WADHWA) ADJ-04/South-East, Saket Courts, New Delhi/23.05.2023 CS No. 10859/2016