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[Cites 2, Cited by 0]

Delhi District Court

Kishor Kumar Mishra vs M/S Emmvee Solar Systemes Pvt. Ltd. on 11 February, 2015

                      Kishor Kumar Mishra Vs M/s Emmvee Solar Systemes Pvt. Ltd.

          IN THE COURT OF  CIVIL JUDGE­02 (SOUTH)
             SAKET COURTS COMPLEX, NEW DELHI

Presided Over By:               SH. VISHAL PAHUJA

In the matter of :
CS No. 291/13

       Kishor Kumar Mishra,
       S/o Sh. Chaturanan Mishra, 
       RZ­43, Vashist Niwas,
       Sai Bab Enclave,
       Near Tehsil Toora Mandi,
       Najafgarh, New Delhi                                              ... Plaintiff

                                   Versus      

       Emvee Solar Systems Pvt. Ltd.,
       Head Office At:
       "Solar Tower", #55, 6th Main,
       11th Cross, Lakshmaiha Block,
       Ganganagar, Banglore­ 560030
       Regional Office/Zonal Office at :
       Emmvee Solar Systems Pvt. Ltd.
       811, Shakuntla, 59, Nehru Place,
       New Delhi ­ 110019                                         .... Defendant


       Date of Institution                               :        30.11.2012
       Date of Reserving Judgment                        :        11.02.2015
       Date of Decision                                  :        11.02.2015
       Final Decision                                    :        Partly Decreed

                              J U D G M E N T

(on Suit for recovery of Rs.1,23,211/­)

1. This is a suit for recovery of Rs.1,23,211/­ alongwith pendent lite and future interest @ 18% per annum against the CS No. 291/13 Page 1 of 13 Kishor Kumar Mishra Vs M/s Emmvee Solar Systemes Pvt. Ltd.

defendant.

2. Briefly stated, case of the plaintiff is that defendant is a private company and plaintiff was appointed as "Sales Assistant" by the defendant company vide appointment letter no.ESSPL/NI/07 dated 03.02.2008 w.e.f. 01.03.2008 to work at its regional/zonal office at New Delhi. That defendant company was pleased to revise the monthly remuneration payable to the plaintiff w.e.f 01.10.2009 vide letter No.ESSPL/HRD/Increment/7/2009­10 dated 01.12.2009 (hereinafter referred to as the "said increment letter", for short). That through the said increment letter, plaintiff came to know first time that he was entitled to receive reimbursement of petrol expenses upto Rs.2500/­ per month from the date of his joining. That despite repeated request of the plaintiff aforesaid conveyance allowance on his professional and allied visit was neither reimbursed nor paid to the plaintiff from the month of his joining till 31.12.2009. That plaintiff inter­alia as per the said increment letter is entitled to receive conveyance allowance for a period of 22 month w.e.f 01.03.2008 to 31.12.2009. That on 26.07.2010, Mr. Vijay CR, then Vice President, Sales and Marketing without any reason abused the plaintiff in public and demanded his resignation. That plaintiff in then charged circumstances was forced to tender his resignation. That plaintiff in complete compliance of clause 10 of the appointment letter dated 03.02.2008 vide his one month termination notice­cum­ CS No. 291/13 Page 2 of 13 Kishor Kumar Mishra Vs M/s Emmvee Solar Systemes Pvt. Ltd.

resignation letter dated 26.07.2010, requested to accept one month advance notice and release him on completion thereof with all the consequential benefits associated with the service and payable by the defendant Company. That Mr. Vijay CR unconditionally accepted the aforesaid resignation letter and orally instructed the plaintiff to discontinue his services with immediate effect and assured that plaintiff will get salary for the notice period, therefore, the plaintiff being left with no option stopped attending office from next day against his express wish and written willingness. Mr. Vijay CR in token of receipt of resignation letter used expression "received resignation letter on 26.07.2010 @ 2.09" on the plaintiff's copy but consciously did not include work "notice" therein, which clearly proves the intention of the defendant company to dispense with the service of the plaintiff with immediate effect, therefore, plaintiff is entitled to receive salary for one month notice period from the defendant company. That the defendant company vide letter dated 01.10.2010 apprised the plaintiff that only Rs.8,374/­ was due and stands paid to the plaintiff. The plaintiff in response to aforesaid letter refuted every allegation of the defendant company contained in the aforesaid letter and explained how the actual amount, the plaintiff is entitled. Thereafter getting no response from the defendant, plaintiff served legal notice dated 11.09.2011 upon the defendant company to pay the dues within 15 days alongwith the interest but all in vain. Hence, the present suit is filed.

CS No. 291/13 Page 3 of 13

Kishor Kumar Mishra Vs M/s Emmvee Solar Systemes Pvt. Ltd.

3. Upon service of summons of the present suit, defendant appeared and filed its written statement (WS) denying the allegations as contained in the plaint. That the suit of the plaintiff is hopelessly barred by limitation. That defendant has settled all the claim. That plaintiff was appointed on a monthly gross salary of Rs.10,500/­ only. Thus, on the above said grounds the defendant has prayed that the suit of the plaintiff be dismissed with costs.

4. Plaintiff filed replication to the WS of the defendant denying the preliminary objections and other averments as contained in the WS. Averments as contained in the plaint were once again reiterated by way of the replication.

5. On the basis of pleadings of the parties, following issues were framed vide order dated 02.12.2013:­

1. Whether the plaintiff is entitled to decree of Rs. 1,23,211/ alongwith interest @ 18% per annum against the defendant as prayed for? OPP

2. Whether the defendant had sent corrective increment letter no.ESSPL/HRD/Increment/7/2009­10 dated 01.12.2009 to the plaintiff as alleged in para no.5 of the WS? OPD

3. Whether the suit is barred by limitation? OPP

4. Relief, if any.

6. In order to prove his case, the plaintiff stepped into the witness box as PW­1 and tendered his evidence by way of CS No. 291/13 Page 4 of 13 Kishor Kumar Mishra Vs M/s Emmvee Solar Systemes Pvt. Ltd.

an affidavit Ex.PW­1/A reiterating the same facts as mentioned in the plaint. He also relied upon the documents Ex.P­1 (appointment letter dated 03.02.2008), Ex.P­2 (increment letter dated 01.12.2009), Ex.P­3 (termination notice dated 26.07.2010 ), Ex.P­4 (letter dated 20.09.2010 ), Ex.P­5 (letter dated 01.10.2010), Ex.P­6 (letter dated 26.10.2010), Ex.P­7 ( fax report), Ex.P­8 (email), Ex.P­9 (email dated 17.09.2010), Ex.P­10(letter dated 29.11.2010), Ex.P­11(letter dated 20.12.2010), Ex.P­12(letter dated 05.04.2011), Ex.P­13 (legal notice dated 11.09.2012) and Ex.P­14 (reply to legal notice dated 10.10.2012) and thereafter, closed his evidence.

Defendant, on the other hand, examined witness namely Sh. H. R. Seetaramu as DW­1 who tendered his evidence by way of an affidavit Ex.DW­1/A. He also relied upon the documents original board resolution dated 30.09.2013 filed with list of document dated 04.10.2013 Ex. DW 1/1, original power of attorney marked as Ex. DW 1/2, copy of the dispatch register dated 03.12.2009 is marked Ex. DW1/3 (Colly). He further relied upon documents already exhibited by the plaintiff Ex.P­1, Ex. P­2, Ex. PW 1/D2, Ex. P­5, Ex. P­6, Ex. P­10, Ex. P­11, Ex. P­12, Ex. P­13, Ex. P­14, Ex.PW­2/D, Ex.PW­2/D1, Ex.PW­1/X. Defendant also examined one more witness namely Sh. Sarawajeet Kumar Singh as DW­2 who tender his evidence by way of an affidavit Ex.DW­2/A. He also relied upon documents Ex.DW­2/1 CS No. 291/13 Page 5 of 13 Kishor Kumar Mishra Vs M/s Emmvee Solar Systemes Pvt. Ltd.

(copy of appointment letter dated 21.12.2007), Ex.DW2/2 (copy of increment letter dated 01.09.2008), Ex.DW­2/3 (copy of increment letter dated 01.12.2009), Ex.P­1 (appointment letter dated 03.02.2008), Ex.P­2 (letter no.ESSPL/HRD/Increment/7/2009­10), Mark PW1/D2 (corrective letter dated 01.12.2009) and thereafter, defendant closed his evidence.

7. I have heard the arguments and also gone through the record carefully. My issue­wise findings are as under:

ISSUE NO.1 Whether the plaintiff is entitled to decree of Rs. 1,23,211/­ alongwith interest @ 18% per annum against the defendant as prayed for? OPP

8. The onus to prove this issue was upon the plaintiff. Ld. Counsel for the plaintiff argued that there is liability of defendant towards the plaintiff qua the petrol expenses starting from the period of appointment i.e. 01.03.2008 till 31.12.2009 and salary for one month's notice period.

Firstly, there is no mention of reimbursement of petrol expenses to the plaintiff in the appointment letter 03.02.2008 Ex.P1. Admittedly, the document is not disputed or challenged at any point of time by the plaintiff. Secondly, no voucher has been prepared and submitted by the plaintiff to the defendant qua the petrol expenses for the period CS No. 291/13 Page 6 of 13 Kishor Kumar Mishra Vs M/s Emmvee Solar Systemes Pvt. Ltd.

starting from 01.03.2008 to 31.12.2009 whereas admittedly the plaintiff has prepared and submitted the vouchers from the period starting from January 2010 to July 2010 as stated in his cross examination. Thirdly, there is nothing on record that suggest that plaintiff has ever demanded the reimbursement of petrol expenses in writing during the relevant period.

It is the argument of Ld. Counsel for plaintiff that defendant has acknowledged the liability vide letter dated 01.12.2009 i.e. Ex.P2. I do not agree with the argument put forth by Ld. Counsel for the reason that although defendant has disputed that the letter was meant for plaintiff but if we consider the same then also it cannot be considered as acknowledgment of liability as the liability itself is not proved by the plaintiff on record. At the most if we read the document Ex.P2 it says at serial no.2 reimbursement of petrol expenses maximum upto Rs.2500/­ and it does not say Rs.2500/­ Implication of said clause is simple that if plaintiff has incurred the expenses he can submit the voucher and get it reimbursed but it is not the case here. Hence, the plaintiff has failed to establish the liability of the defendant qua the petrol expenses for the above­said period.

9. Ld. Counsel for the plaintiff argued that plaintiff was forced to give resignation and he resigned the same in terms of clause 10 of the appointment letter giving one month advance notice on 26.07.2010 but the vice president of defendant company Mr. Vijay C. R. asked him not to come to CS No. 291/13 Page 7 of 13 Kishor Kumar Mishra Vs M/s Emmvee Solar Systemes Pvt. Ltd.

the office when plaintiff visited the office on 27.07.2010. It is argued by Ld. Counsel that defendant company has wrongly deducted one month salary from plaintiff which he was entitled to receive as per agreed terms for the notice period.

On the other hand, Ld. Counsel for the defendant company argued that the defendant company never stopped the plaintiff to work after the resignation and in fact the plaintiff himself stopped coming to the office. It is further argued that the misbehavior of vice president of defendant company alleged by the plaintiff is not mentioned in his resignation letter nor any witness to the incident has been examined by the plaintiff to prove that he was denied coming to the office after the resignation. It is therefore argued that as per the terms of agreement company was entitled to deduct one month salary from the pay of the plaintiff and therefore plaintiff is not entitled for recovery to that effect.

10. Clause 10 of the appointment letter Ex.P1 is reproduced here for the sake of convenience which says that your employment can be terminated either by the company or by you, by giving one month notice or one month salary. Such clause is generally incorporated to enable both the parties to make their arrangement in case of termination of service. If the plaintiff resigns giving one month notice, it is upon the employer to accept the same with immediate effect stopping the employee to carry on his duty or it can wait for one month so that the substitute can be appointed. In case CS No. 291/13 Page 8 of 13 Kishor Kumar Mishra Vs M/s Emmvee Solar Systemes Pvt. Ltd.

the employer terminates the service it should give one month notice to the employee enabling him to search for his job or one month salary in lieu thereof.

In the present case, the plaintiff resigned from the job giving one month notice cum resignation. It was the prerogative of the employer to except the same or give one month notice to the plaintiff. The employer as alleged by the plaintiff stopped him from joining his duty on the very next day after tendering his resignation letter. Once, plaintiff has alleged that the vice president of the defendant company Mr. Vijay C. R. has asked him not to come to the office following which plaintiff stopped visiting the office, the onus was upon the defendant company to disprove the allegations by calling the defendant witness and for that matter specifically Mr. Vijay C. R. but the defendant company has failed to do so. There have been categorically statement by the PW­1 in his cross examination that " Mr. Vijay CR used to come to Delhi Office at that point of time. Mr. Vijay CR had abused me and asked for my resignation as he had asked me to return Ex.PW­2 a couple of days before that incident and I had refused to return Ex.P­2. I had not called the police regarding the said incident. Mr. Sushil Kumar staff of defendant company was also present there at that time. I was forced to resign by Mr. Vijay CR as he was misbehaving with me". There is no suggestion put by the defendant to the plaintiff witness qua the above statement or refuting the claim of the plaintiff, meaning thereby the statement of the CS No. 291/13 Page 9 of 13 Kishor Kumar Mishra Vs M/s Emmvee Solar Systemes Pvt. Ltd.

plaintiff is correct and it has been established that the plaintiff was forced to give the resignation and was not allowed to attend the office subsequent to that. Hence, the plaintiff is not found to be at fault rather the defendant company has deducted the one month salary illegally contrary to the terms of agreement. So plaintiff is entitled to one month salary that have been deducted.

Plaintiff has also claimed salary for 26 days of July 2010, conveyance allowance for the said period alongwith leave encashment of 17 days. Perusal of the record reveals that the document Ex.P5 filed by the plaintiff himself is clear to the extent whereby the said amount has been adjusted and calculated against the dues. Hence, no such relief can be granted to the plaintiff.

In view of the above observation and the evidence led, this issue stands decided accordingly.

ISSUE NO.2 Whether the defendant had sent corrective increment letter no.ESSPL/HRD/Increment/7/2009­10 dated 01.12.2009 to the plaintiff as alleged in para no.5 of the WS? OPD

11. The onus to prove this issue was upon the defendant. Ld. Counsel for the defendant argued that the corrective increment letter dated 01.12.2009 was delivered to the plaintiff which was sent by the defendant company through courier. It is further argued that DW­2 Sarabjeet CS No. 291/13 Page 10 of 13 Kishor Kumar Mishra Vs M/s Emmvee Solar Systemes Pvt. Ltd.

Kumar Singh has personally handed over the letter to the plaintiff. Ld. Counsel further relied upon documents Ex.DW­1/3 i.e. dispatch register where entry pertaining to receiving of corrective letter was made.

First of all, there are contradictory statements by the defendant witnesses as to the name of person who has handed over the corrective letter to the plaintiff. DW­2 in his affidavit mentioned that the said letter was personally handed over to the plaintiff by the office assistant Mr. Himanshu Kashyap whereas in his cross examination DW­2 failed to state as to who has handed over the letter to the plaintiff. Even DW­1 has stated that DW­2 has handed over the same to the plaintiff but DW­2 has not stated so which is again a contradictory version on the part of the defendant.

Now coming to the document Ex.DW­1/3 i.e. the dispatch register relied upon by the defendant. Admittedly there are blank columns in the register nor every entry is made in the said register as DW­1. Admittedly, the entry of dispatch of appointment letter is not made in the said register. Secondly, at one place DW­1 stated that the entries are made in the handwriting of receptionist whose name he does not remember whereas he claim to have made the entry qua the dispatch of corrective increment letter in his own handwriting. Hence, there is contradiction to the aspect of even sending of corrective increment letter and the delivery thereof to the plaintiff on 01.12.2009 has not been proved on record.

CS No. 291/13 Page 11 of 13

Kishor Kumar Mishra Vs M/s Emmvee Solar Systemes Pvt. Ltd.

Accordingly, this issue stands decided in favour of the plaintiff and against the defendant.

ISSUE NO.3 Whether the suit is barred by limitation? OPP

12. The onus to prove this issue was upon the defendant but inadvertently mentioned as plaintiff. It is submitted by Ld. Counsel for defendant that as per article 7 of Limitation Act the period of limitation is of 3 year from the date when the wages accrued . It is further argued that the plaintiff is seeking reimbursement of petrol expenses from the period starting from 01.03.2008 till November 2009 and the suit has been filed only on 29.11.2012 that means the period of limitation has already been lapsed. On the other hand, Ld. Counsel for the plaintiff argued that the document Ex.P2 is the acknowledgment of the debt/liability with effect from 01.10.2009 by the defendant company issued on 01.12.2009 so the period of limitation shall be calculated from 01.12.2009. Hence, the claim of the plaintiff is within period of limitation.

I do not agree with the argument put forth by Ld. Counsel for the plaintiff for the reason that it has already been decided in the issue no.1 that there was no liability upon the defendant company towards the plaintiff qua the reimbursement of the petrol expenses for the above­said period so there cannot be any acknowledgment to that effect.

CS No. 291/13 Page 12 of 13

Kishor Kumar Mishra Vs M/s Emmvee Solar Systemes Pvt. Ltd.

This issue stands decided accordingly.

Relief:

13. As a consequence to my findings on the above mentioned issues, suit of the plaintiff is hereby partly decreed. Plaintiff is entitled to recover an amount of Rs 13,000/­ (i.e. one month salary wrongly deducted by the defendant) from the defendant alongwith interest at the rate of 12% per annum from the date filing of the suit till its realization. Costs is also awarded to the plaintiff. Decree sheet be prepared accordingly.
14. File be consigned to the record room after due compliance.

Announced in the open Court (Vishal Pahuja) on 11.02.2015 CJ­02 (South)/Saket Courts New Delhi/11.02.2015 CS No. 291/13 Page 13 of 13