Delhi High Court
Mahesh Jawa vs Shivam Infocom Pvt Ltd & Ors. on 13 August, 2015
Author: Sunil Gaur
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: August 13, 2015
+ CRL.M.C. 236/2014
MAHESH JAWA ..... Petitioner
Through: Mr. Himanshu Jawa and Mr.
Pankaj Rehani, Advocates
versus
SHIVAM INFOCOM PVT LTD & ORS .....Respondents
Through: Mr. Pankaj Tripathy, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
Petitioner's complaint against his previous employer which
contains allegations of misappropriation of petitioner's salary stands
dismissed by trial court vide order of 22 nd April, 2013 by holding that the
dispute between the parties appears to be of purely civil nature. The
aforesaid order stands affirmed by the revisional court vide impugned
order of 12th September, 2013. The sum and substance of the concurrent
findings returned by both the courts below is that if petitioner-
complainant has any grievance regarding his salary being wrongly
deducted, then the remedy of civil suit lies and no case for initiating
criminal proceedings is made out.
The factual background of this case, as noticed in the impugned
order, is as under: -
"As per his case, complainant is a law abiding citizen and
B.Tech Communication Engineer. He was employed in the
CRL.M.C. 236/2014 Page 1
project department of Shivam Infocom Pvt. Ltd. (respondent no.
1), which is a telecom company engaged in the maintenance work
and new network installations at sites, having corporate office at
185, DSIDC Complex, Okhla Industrial Area, New Delhi.
Respondent no. 2 is Manager of said company and respondent
no. 3 is Head of quality and outsource Department of same.
Complainant joined the company on 27.10.2010 as a
trainee engineer for three months. Respondent no. 2 assured him
to pay Rs.5,000/- for next three months and to increase his salary
after seeing his regularity and work. He was also assured for
conveyance, other incentives and bonus time to time. Respondent
no. 2 was well impressed by the responsibilities, qualities and
skills shown by complainant. He was sent at Vodafone in O & M
department situated at Ghazipur to replace an experienced
engineer. He was assured for an increase in his salary up to
Rs.10,000/- per month but said promise was never fulfilled. In the
month of January 2011, respondent no. 2 transferred
complainant in Ericson at Gurgaon for removal of faults from
BTS sites. On being requested by complainant that he was unable
to go there being resident of Sonepat, respondent no. 2 and 3
suggested him i.e. complainant to reside at Okhla on rented
accommodation and also to increase his salary. Complainant
accordingly took a house at Kalkaji on rent. Respondents did not
fulfill their promise. He was compelled to do work till late hours.
In February 2011, respondent / accused no. 2 asked
complainant to join O & M of ETISALAT at Gurgaon under the
supervision of Ericson. He was assured for an increase in the
salary by respondent no. 2. In April 2011, complainant was
present in the project of Vodafone. Respondent / accused no. 2
and 3 assured him to increase his salary and he (complainant)
came to know that his actual salary was Rs.15,500/- per month in
April 2011 but he was being paid only a sum of Rs.8,000/-. In
month of September 2011, he got promotion in the company and
CRL.M.C. 236/2014 Page 2
joined as Off Role Engineer at Gazipur. He was paid Rs.8,000/-
approximately after necessary deductions. About a month prior
to filing complaint, complainant was not fit in health. Despite
that he remained regular in doing his duty but on 30.09.2011, he
became unable to do his duty due to health problem. He went to
Sonepat after informing respondent no. 3 regarding his ill heath.
Complainant came to know that he was suffering with jaundice.
Doctor advised him to take proper care and caution. After taking
rest of four days, when he joined his job on 03.10.2012, he was
shocked to see the behaviour of respondent no. 3. The latter
asked him to submit his laptop to one Parteek who had been
appointed to re-place the complainant.
Contending that respondent no. 3 compelled him to submit
resignation, complainant requested for summoning the
respondents as accused for offences as mentioned above.
Complainant examined himself as CW-1 and reiterated his
allegations."
On petitioner's complaint, Action Taken Report was sought and as
per the said Report, there was no discrepancy between the salary
disbursed to petitioner-complainant in terms of the salary sheet and „ESIC
Contributions‟ deducted from his salary. In short, the grievance of
petitioner-complainant is that he was illegally terminated from service
after he remained absent due to his ailment and he had come to know in
April, 2011 that he was paid Rs.8,000/- per month whereas his salary was
Rs.15,000/- per month, but he continued to work with his employer till
September, 2011 and after termination of his service, petitioner had sent
legal notice of 4th November, 2011.
At the hearing, learned counsel for petitioner had placed reliance
upon decision in Ravindra Kumar Madhanlal Goenka and Anr. V. M/s.
CRL.M.C. 236/2014 Page 3
Rugmini Ram Raghav Spinners P. Ltd. AIR 2009 SC 2383, Smt. Rumi
Dhar v. State of W.B. and Anr. AIR 2009 SC 2195, M. Krishnan v. Vijay
Singh and Another AIR 2001 SC 3014, M/s. Medchl Chemicals and
Pharma Pvt. Ltd. v. M/s. Biological E. Ltd. and Others AIR 2000 SC
1869 and Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Ors.
AIR 1976 SC 1947 to submit that criminal proceedings cannot be
foreclosed because the dispute is of civil nature and civil and criminal
proceedings can proceed simultaneously and that the allegations levelled
in the complaint have to be taken on their face value.
The afore-noted legal position, as highlighted by learned counsel
for petitioner, cannot be disputed, but it has to be seen in the facts and
circumstances of this case as to whether the dispute raised in the
complaint in question is of purely civil nature or it gives rise to civil as
well as criminal proceedings.
After having heard learned counsel for the parties and on perusal of
the impugned orders, the material on record and the decisions cited, I find
that the dispute raised in the complaint in question lacks any criminality.
Infact, the dispute raised by petitioner is indeed of purely civil nature.
Thus, finding no palpable error in the impugned orders, this
petition is dismissed while not commenting upon merits of the dispute
raised as it may prejudice petitioner in the eventuality of his initiating the
civil proceedings.
(SUNIL GAUR)
JUDGE
AUGUST 13, 2015
s
CRL.M.C. 236/2014 Page 4
