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3.3. Under Clause 10(b) of the letter of appointment, the defendant also reserved the right to terminate the plaintiff's services in the event of non-performance or misconduct.
3.4. The plaintiff's performance was not satisfactory since his joining on 08.03.2016 as a result of which the immediate superior on regular basis had provided the plaintiff with feedback to improve his below-par performance. However, the plaintiff did AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD not improve his performance and on 10.10.2016 the plaintiff's immediate superior was constrained to refer the plaintiff's unsatisfactory performance to the human resources development of the defendant to chalk out the performance improvement plan which the plaintiff agreed to work upon. The plaintiff was granted 30 days' time to work upon the said plan after discussions took place between the plaintiff and the human resources department of the defendant company. The same was communicated to the plaintiff vide email dated 10.10.2016.

19. It is submitted that under Clause 10(a), once the defendant had waived of the notice period, rather it was the plaintiff who was required to pay the amount equivalent to the gross salary for the notice period reduced, and the plaintiff could not seek payment of the salary for the reduced period.

20. It is submitted that Mr. Anil Rathor group head HR of the defendant had written e-mail dated 10.10.2016 Ex.DW1/1 to the plaintiff informing about the unsatisfactory performance of the plaintiff. However, thereafter, the plaintiff went on unauthorized leave as evident from the attendance sheet Ex.DW1/2, and on 17.1.2016 the plaintiff gave the resignation letter. It is submitted that on 17.10.2016, the defendant waived of the notice period due to the ground of non-performance of the plaintiff.

42. It is seen that the only provision which permits the defendant to terminate the services of the plaintiff was in the event of non-performance or misconduct as mentioned in clause 10(b) of the employment agreement.

43. It is the case of the defendant that the plaintiff's performance was not satisfactory and that the defendant had waived the notice period on account of the non- performance. It is further the case of the defendant that in any event, even if the plaintiff had not resigned, in any case, the defendant would have terminated the services of the plaintiff for non-satisfactory performance under clause 10(b). However, this case of the defendant is completely contrary to the certificate dated 30.12.2016 Ex.PW-1/6 and relieving letter dated 30.12.2016 Ex.PW-1/7, which were issued by the defendant to the plaintiff. The relieving letter dated 30.12.2016 Ex.PW-1/7 by the defendant states that the defendant was accepting the resignation of the plaintiff with effect from 17.10.2016. Importantly, there is nothing stated in the relieving letter regarding the notice period AKSHAY KUMAR Vs. INDIABULLS HOUSING FINANCE LTD being waived due to any non-performance or unsatisfactory performance. Rather, in the certificate dated 30.12.2016 Ex.PW-1/6 which was issued along with the relieving letter, the defendant has certified that the plaintiff worked with the defendant from 08.03.2016 till 17.10.2016 in the designation of General Manager in the legal department and has certified in very clear terms that:

"During his tenure, the services were found to be satisfactory. He has worked with a great sense of ownership and commitment." Thus, the defendant's stand that the defendant had waived the notice period due to unsatisfactory performance cannot be sustained.
44. Furthermore, although it is the defendant's case that there was non-performance on the part of the plaintiff in the employment, no particulars of the non-performance have been stated in the written statement. The allegation of non- performance is very vague and is without any material particulars and details. The defendant has not stated in its written statement as to what was the nature of non- performance on the part of the defendant. When it was the defendant's case that there was non-performance by the plaintiff, then the defendant ought to have clearly averred in the written statement as to what was the nature of the non-performance, so that the plaintiff could have met the case of the defendant. Even the testimony of DW-1 and DW-2 is also vague with regard to the allegation of non- performance. Although both the DW-1 and DW-2 depose in their affidavits in evidence that there was non-