Delhi High Court
Klintoz Pharmaceuticals Pvt Ltd. vs Ravinder Shankar Mathur on 19 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 19th September, 2018.
+ RSA 140/2018
KLINTOZ PHARMACEUTICALS PVT LTD. ..... Appellant
Through: Mr. Gautam Kumar, Adv.
Versus
RAVINDER SHANKAR MATHUR ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
CM No.38496/2018 (for exemption) & CM No.38497/2018 (exemption
from filing complete Trial Court record).
1. Allowed, subject to just exceptions.
2. The applications stand disposed of.
RSA 140/2018.
3. This Second Appeal under Section 100 of the Code of Civil
Procedure, 1908 (CPC) impugns the judgment and decree [dated 21 st May,
2018 in RCA No.24/2013 (20202/2016) of the Court of District Judge
(South-East)] partly allowing the First Appeal under Section 96 of the CPC
filed by the respondent/plaintiff against the judgment and decree [dated 30 th
September, 2013 in Suit No.121/2013 of the Court of Additional Senior Civil
Judge (South-East)]of dismissal of suit filed by the respondent/plaintiff
against the appellant/defendant for recovery of Rs.49,185/- on account of
dues of salary, bonus, leave encashment, refundable security amount along
with interest. Resultantly, the First Appellate Court has passed a decree in
favour of the respondent/plaintiff and against the appellant/defendant for
recovery of Rs.35,220/- with interest @ 6% per annum w.e.f. 1st November,
2008 till the date of payment.
4. The counsel for the appellant/defendant has been heard.
5. The counsel for the appellant/defendant has argued, (i) that the
respondent/plaintiff joined the employment of the appellant/defendant in the
capacity of a manager in the month of November, 2007; (ii) the
respondent/plaintiff resigned from the said employment on 31 st October,
2008; (iii) that it was a term of employment of the respondent/plaintiff, that
his employment was terminable by a two months notice from either side; (iv)
that the respondent/plaintiff did not serve two month notice period and the
appellant/defendant, out of the dues of the respondent/plaintiff, was entitled
to deduct two months salary; (v) that holding so, the suit was dismissed; and,
(vi) that the First Appellate Court has however partly allowed the appeal and
passed a decree for recovery of monies against the appellant/defendant.
6. I have enquired from the counsel for the appellant/defendant, that the
appellant/defendant having approached this Court in Second Appellate
jurisdiction, what is the substantial question of law which the appeal raises.
7. The counsel for the appellant/defendant is unable to state the same.
8 The judgments of the Suit Court and the First Appellate Court and
copies of the Suit Court record filed along with the memorandum of appeal
have been perused.
9. The admitted position is, that the letter dated 26th October, 2007 of
appellant/defendant, of appointment of the respondent/plaintiff, merely
provides as under:-
"Sub: Offer Letter.
Dear Mr. Mathur,
With reference to our discussion, we are pleased
to inform you that you have been offered the post of
Business Development Manager in the organisation
with effect from 26th October, 2007.
Terms and conditions will remain as discussed
and agreed upon. The detailed offer letter mentioning
your salary, expenses and other prerequisites will
follow after we receive your intimation of joining in the
Office.
Please send your acceptance and join your duty
accordingly.
Yours sincerely.
Yours faithfully
For Klintoz Pharmaceuticals Pvt. Ltd."
10. The aforesaid letter was signed by the respondent/plaintiff under the
endorsement "I have read, understood and accepted the terms and conditions
of the appointment".
11. It was the case of the appellant/defendant that the terms and conditions
of appointment are contained in a separate document titled "Terms and
conditions of TGE appointment for the post of Business Development
Manager" and clause 8 whereof titled "Termination of Service/Resignation
from the company" inter alia provided as under:-
"Similarly the employee only after the
confirmation of services shall be at liberty to resign
from the services of the company after giving
minimum two month's prior notice or amount
equivalent to two month's of last drawn salary in lien
thereof. If the employee resigns and leaves without
giving two month's prior notice and without
submitting no objection certificate form all
departments of company, the amount equivalent to two
month salary will be deducted/adjusted from his
salary/security deposit/bonus/leave encashment. No
notice would be required by the management if
services are terminated for any misconduct, concealed
or any covered up information, mental disability or
infirmity or continued I'll heath absence in account of
unsanctioned leave. The employee will be liable to
face a legal action and or financial penalties with
misconduct indulge in corruption or data lose or any
other action which may harm the company's image or
cause financial losses to the company. Company
financial year ends on 31st March every year. The
business development manager will not be entitled for
the bonus, leave encashment for the part of the
financial year in which he tenders his resignation.
The employee shall not leave the company after
resignation/termination without approval in writing
by way of a "No Objection Certificate" from all
departments. The employee has to hand over the
company's property including stationery items, bags,
mobiles, laptop, projectors etc. to the authorised
person if the management before leaving the company.
IN case of no compliance and/or the employee being
found indulged in any financial irregularities or
holding of company's properties, the amount
equivalent to financial irregularities or/and cost of
company's properties will be adjusted/deducted from
his salary/Security Deposit/Bonus/Leave
Encashment."
12. The First Appellate Court has reasoned, that (i) that the document
titled "Terms and conditions of TGE appointment for the post of Business
Development Manager" does not bear the signatures of the
respondent/plaintiff or even of the appellant/defendant or even of the person
who signed the appointment letter dated 26th October, 2007; (ii) the
document titled "Terms and conditions of TGE appointment for the post of
Business Development Manager" does not even bear any date; (iii) the
respondent/plaintiff in his deposition expressly denied that the said terms and
conditions were received by him or communicated to him; (iv) one of the
witnesses of the appellant/defendant examined as DW2 also in his cross-
examination stated that he did not know whether the document titled "Terms
and conditions of TGE appointment for the post of Business Development
Manager" had been handed over to the respondent/plaintiff along with the
appointment letter dated 26th October, 2007 or not; (v) the appointment letter
dated 26th October, 2007 proved as Ex.D-1 showed that the detailed offer
letter mentioning salary, expenses and other perquisites was to follow after
the respondent/plaintiff had joined the services; (vi) it could not be believed
that the document titled "Terms and conditions of TGE appointment for the
post of Business Development Manager" formed part of the appointment
letter dated 26th October, 2007 Ex.D-1; (vii) the appellant/defendant had
already failed to prove that the said document titled "Terms and conditions
of TGE appointment for the post of Business Development Manager" was
annexed to or was part of the appointment letter dated 27 th October, 2007;
(viii) moreover, the appellant/defendant did not insist upon the
respondent/plaintiff continuing to work for two months of the notice period
and which also indicated that there was no such term of employment by the
appellant/defendant of the respondent/plaintiff; and, (ix) on the contrary, the
resignation letter of the respondent/plaintiff was accepted and no claim
against him for notice period salary was made.
13. I have enquired from the counsel for the appellant/defendant, what is
the evidence led by the appellant/defendant to prove that the document titled
"Terms and conditions of TGE appointment for the post of Business
Development Manager" was annexed to the appointment letter dated 26 th
October, 2007 Ex.D1.
14. The counsel for the appellant/defendant has drawn attention to page
114 of the paper book, being the transcript of the deposition of DW5
Subhash Chand Kansal, who claimed to be present at the time of interview of
the respondent/plaintiff and to be a member of the interview panel. However,
a perusal of the examination-in-chief of the said witness shows that the said
witness nowhere deposed, either of the appointment letter dated 26th
October, 2007 Ex.D-1 or of the document titled "Terms and conditions of
TGE appointment for the post of Business Development Manager". All that
he deposed was, that "usual terms and conditions for the appointment and
salary of the plaintiff was discussed".
15. The counsel for the appellant/defendant has not drawn attention to any
other evidence or raised any other arguments.
16. It is thus not a case of the First Appellate Court, which is the final
court of facts, having returned the factual finding qua non entitlement of the
appellant/defendant to deduct notice period salary out of the dues of the
respondent/plaintiff, without there being any evidence on record. No fault
has been shown with the reasoning given by the First Appellate Court for
holding that the appellant/defendant was not entitled to deduct notice period
salary. Supreme Court in Damodar Lal Vs. Sohan Devi (2016) 3 SCC 76 as
well as in Krishnan Vs. Backiam (2007) 12 SCC 190 has held that as long
as the finding of the First Appellate Court is based on some evidence, even if
little evidence, the Second Appellate Court cannot appropriate to itself the
jurisdiction to adjudicate the facts by calling such a finding perverse.
17. There is another aspect of the matter. As per the law now in force,
deduction from admitted dues, of amounts by way of forfeiture, without
proving any loss or damage, cannot be effected. Reference in this regard can
be made to Union Bank of India Vs. C.G. Babu 2018 SCC OnLine SC 962,
UCO Bank Vs. Anju Mathur 2013 SCC OnLine P&H 5014 (FB), Kamla
Rameshchandra Sharma Vs. Maharashtra Rajya Wakhar Mahamandal,
Pune 2008 SCC OnLine Bom 1433, Jaswant Singh Gill Vs. Bharat Coking
Coal (2007) 1 SCC 663, all in the context of forfeiture of gratuity and
Kailash Nath Associates Vs. Delhi Development Authority (2015) 4 SCC
136, Palm Art Apparels Vs. Enkay Builders Pvt. Ltd.
MANU/DE/3533/2017, Satish Verma Vs. Garment Craft (India) Pvt. Ltd.
2018 SCC OnLine Del 6829 and to order dated 31st January, 2018 of this
Court in CS(OS) No.308/2016 titled Mera Baba Pvt. Ltd. Vs. Ram Lubhaya
Puri. There is not a whisper in the written statement, of the
appellant/defendant having suffered any loss owing to the
respondent/plaintiff having not served the notice period even if any. Rather,
on perusal of the testimonies it is found that it was the suggestion of the
counsel for the appellant/defendant in cross-examination of the
respondent/plaintiff that the respondent/plaintiff was not doing any work for
the appellant/defendant and was receiving salary only for sitting idle in the
office. That being the stand, the possibility of the appellant/defendant having
suffered any loss or damages owing to the respondent/plaintiff having not
served the notice period, even if any, did not arise.
18. There is no merit in the appeal. It does not raise any substantial
question of law.
Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 19, 2018
'pp'
