M/S. Aithent Technologies Pvt Ltd vs Archana Verma
2018 Latest Caselaw 4578 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 608/2014

%                                                    6th August, 2018

M/S. AITHENT TECHNOLOGIES PVT LTD                         ..... Appellant

                    Through:       Mr. Sumit Chaudhary, Advocate.

                          versus

ARCHANA VERMA                                            ..... Respondent

                    Through:       None.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)

RFA No.608/2014 and C.M. Appl. No. 19392/2014 (for stay)

1. This Regular First Appeal under Section 96 of the Code

Civil Procedure,1908 (CPC) is filed by the defendant in the suit

impugning the Judgment of the Trial Court dated 8.8.2014 by which

the trial court has decreed the suit filed by the respondent/plaintiff/ex-

employee for a sum of Rs.2,23,200/- with interest at the rate of 7% per

annum, on account of part unpaid salary for the period from 1.4.2002

to 31.3.2003.

2. The facts of the case are that respondent/plaintiff was

appointed by the appellant/defendant with effect from 1.11.2001 and

the respondent/plaintiff worked at the Gurgaon Office of the

appellant/defendant company. The respondent/plaintiff as per her

plaint pleads that on account of appellant/plaintiff facing a cash crunch

it was agreed with the employees that a part of their salary for the

financial year 2002-2003 would be payable in the next financial year

i.e. from 1.4.2003, however the appellant/defendant company from

1.4.2003 though restored the gross salary at Rs. 62,000/- per month

with enhancement from 1.4.2003, but the appellant/defendant did not

pay the deducted portion of the salary from 1.4.2002 to 31.3.2003.

3. Respondent/plaintiff worked with the appellant/defendant

till 14.5.2004 and subsequently got employment with a company

Hewitt Associate India Private Limited. The respondent/plaintiff sent

a Letter dated 20.3.2006 setting out her claim on account of the

appellant/defendant failing to pay the amount of part unpaid salary for

the financial year 2002-2003 and thereafter the subject suit for

deferred salary and compensation bonus totalling to Rs.3,87,688/- was

filed.

4. Appellant/defendant contested the suit and pleaded that

there was no agreement that the portion of the salary not paid in the

financial year 2002-2003, has to be paid subsequently as deferred

salary, inasmuch as the fact of the matter was that there was

restructuring of salary of employees for the financial year 2002-2003

on account of financial difficulties of the appellant/defendant

company. It was contended by the appellant/defendant that if the claim

of the respondent/plaintiff had been genuine, then there was no reason

as to why for two years after 2002-2003 till the respondent/plaintiff

worked with the appellant/defendant that no claim was at all lodged by

the respondent/plaintiff, and which claim was only lodged after the

employment of the respondent/plaintiff with the appellant/defendant

company ceased, and that too after about two years of leaving of the

employment.

5. After pleadings were complete, the trial court framed the

following issues:-

"1. Whether this court has territorial jurisdiction to try this suit? OPP

2. Whether plaintiff was a party to the restructuring of salary as alleged by defendant? OPD

3. Whether plaintiff was a part of the management of defendant as such estopped from bringing this suit? OPD

4. Whether a part of the salary of plaintiff had been deferred with assurance to be paid at a alter stage? OPP

5. Whether plaintiff is entitled to recovery of the suit amount? OPP

6. Whether plaintiff is entitled to any interest on the suit amount? If so, what period and at what rate? OPP

7. Relief."

6. Parties thereafter led evidence and these aspects are recorded in

paragraphs 8-11 of the impugned judgment and these paras read as

under:-

"8. The plaintiff appeared as PW1 in evidence and examined herself vide affidavit Ex.PW1/A. The plaintiff relied upon letter dated 06.05.2004, Ex.PW1/1, letter revising salary dated 01.12.2002 Ex.PW1/2, original salary slips from February, 2002 to June, 2003 Ex. PW1/3 to 19. e-mail message sent on behalf of defendant Ex.PW1/20, letter issued on behalf of defendant dated 01.04.2005 Ex.PW1/21, letter issued by the plaintiff dated 21.03.2006 Ex.PW1/22. The witness has been cross- examined on behalf of defendant.

9. PW2: Sunil Vadhera has also been the employee of defendant company at the relevant time and worked as Unit Head/Director. The witness has supported the fact that salary of number of employee was deferred by the defendant company in order to overcome temporary cash flow issue. The witness has also supported the e-mail message Ex.PW1/20. The witness admitted during cross-examination that he also filed recovery suit against the defendant company.

10. PW3: Sanjay Verma was also an employee of the defendant company and happens to be the husband of plaintiff. He has also supported the claim of the plaintiff with respect to deferred salary. The witness has been cross-examined. Thereafter, plaintiff's evidence was closed.

11. On the other hand, DW1: Banty Bisht (Manager-HR) appeared on behalf of defendant and tendered affidavit Ex.D1. The witness tendered his authority on behalf of defendant company to depose vide Ex.DW1/A. The witness has been cross-examined on behalf of plaintiff."

7. The only issue to be examined by this Court is as to whether

there was an agreement that employees will be paid a portion of the

salary of 2002-2003 at a deferred rate or that there was an agreement

between the employees and the appellant/defendant-

company/employer for structuring of the salaries financial year 2002-

2003 whereby the employees including respondent/plaintiff were to

receive lesser salaries.

8. In my opinion, the trial court has erred in this regard while

deciding issue nos. 3-5 that the respondent/plaintiff has proved her

case that it was a case of deferred payment of salaries and not a case

of restructuring of salaries at a lower level of salary inasmuch as trial

court has not even discussed that there is no agreement whatsoever

filed by the respondent/plaintiff that the portion of the salary not paid

was agreed to be paid by the appellant/defendant as a deferred salary,

and that there was not restructuring of the salary. There is a ring of

truth in the statement of the appellant/defendant company that the

amount not paid was on account of the salary being restructured of all

the employees including the respondent/plaintiff and if restructuring

stand was not correct then there was no reason why the

respondent/plaintiff would not have sent letters or a legal notice or

initiated legal proceedings from 1.4.2003 till she continued as an

employee of the appellant/defendant company till 14.5.2004, with the

further fact that in fact the first claim of so called deferred salary was

not made by the respondent/plaintiff till 20.3.2006, i.e. much much

later than the year 2002-2003, being the so called period of deferred

salary issue.

9. I agree with the contention of the appellant/defendant company

that the claim of the respondent/plaintiff is not genuine because not

only the respondent/plaintiff but all other employees were paid lesser

salary on account of restructuring of salary because of financial crunch

being faced by the appellant/defendant/company.

10. I may also note that the contract in question is a contract of

private employment and if the respondent/plaintiff did not want to

work at the reduced salary, the respondent/plaintiff could well have

walked out of the employment, and which admittedly the

respondent/plaintiff did not do, and this shows that for all the

employees including the respondent/plaintiff there was restructuring

of salary and that there was no agreement of payment of the difference

of the salary, than the original rate and the restructured lesser salary

amount ,more so because there is no document whatsoever filed by

the respondent/plaintiff of any agreement that the portion of salary not

paid during the year 2002-2003 was to be paid at a deferred rate.

11. In view of the aforesaid discussion this appeal is allowed and

the impugned Judgment of the trial court dated 8.8.2014 is set aside.

Suit of the respondent/plaintiff will stand dismissed. Any amount

deposited by the appellant/defendant in this Court along with accrued

interest be returned back by the Registry to the appellant/defendant

within a period of four weeks from today. Decree sheet be prepared.

AUGUST 06, 2018                             VALMIKI J. MEHTA, J
AK