Soumen Sen, J.@mdashThis is the suit is for recovery of amount on account of arrears salary and other service benefits. The plaintiff claimed that the plaintiff was appointed initially an employee of the defendant on its Topsia Warehouse. In 2007 he was drawing a gross salary of Rs. 15,000/- in addition to the following benefits:-
A. Reimbursement of taxi fare to and fro from residence to warehouse (Approx 5,800/- to 6,200/- P.M.)
B. Incentive per month- Rs. 4000/- to Rs. 5000/-.
C. Leave Pay Salary for last drawn salary (one month each year).
D. Bonus-one month salary for the last drawn salary for each year.
2. Since 2006 the payment of monthly salary and other benefits payable by the defendants to the plaintiff became irregular. Despite several requests the defendant had failed and neglected to pay the salaries and other service benefits. In view that it became difficult for the plaintiff to continue the service with the said defendant and accordingly on 7th August, 2012 he tendered resignation and requested the defendant to settle the accounts as early as possible. The said letter was sent by E-mail and also by registered post. The keys of the warehouse were also handed over to the plaintiff at the said office on July 12, 2010 and subsequently duly confirmed and recorded in the letter dated 24th July, 2010. The defendant accepted the said resignation. However, the said defendant had failed and neglected to pay the arrears salary and the other benefits to which the plaintiff was entitled under the service conditions.
3. The plaintiff has given particulars of such claim in paragraph 7 of the said plaint aggregating Rs. 10,75,421/-. The plaintiff initially filed a winding up petition against the said company in view of the defendant''s failure to pay the aforesaid sums. The claim of the plaintiff was relegated to the defendant upon depositing a sum 1.35 lakhs with the Registrar, Original Side with a direction that the said amount shall be deposited in fixed deposit in any nationalized bank and shall be kept until disposal of the suit.
4. The plaintiff contended that the claim made by the defendant before the Hon''ble Division Bench that the plaintiff was given accommodation loan of Rs. 5 lakhs was rejected and it was observed that such claim is hopelessly barred by limitation and thereafter the defendant was directed to deposit the aforesaid sum with the Registrar, High Court, Original Side.
5. Under such facts and circumstances the plaintiff has instituted the suit for recovery of Rs. 13,81,916/- as particularized in paragraph 15 of the said plaint.
6. In spite of the service of the writ of summons the defendant has failed to appear and contest the said proceeding.
7. The plaintiff himself was examined in chief.
8. The plaintiff has produced the following documents during his examination in support of his claim:-
(1) Letter dated 21st March, 2007
(2) Salary certificate dated 25th July, 2007
(3) Undated salary certificate
(4) Salary sheet from January, 2009 till October, 2009
(5) A letter dated 24th July, 2010
(6) A letter dated 7th August, 2010
(7) A letter dated 31st January, 2011 with acknowledgement receipts
(8) Copies of the orders passed in C.P. No. 118 of 2011
9. The aforesaid documents were tendered in evidence and marked exhibits-A to H.
10. In his examination the plaintiff had stated that he joined the office of the defendant on 1st February, 2012. It was a verbal appointment. He was sent to the Topsia Warehouse to look after the business of the said defendant. He was promised to pay him Rs. 7500/- per month and ex gratia of Rs. 1 lakh which is to be paid on an early basis. He received such exgratia for five years. He was promoted and given increment. The salary was revised from time to time. He referred to the letter and/or certificates dated 21st March, 2007 and 25th July, 2007 in support of his claim for salary, incentive and other service benefits. The witnesses referred to a undated certificate issued by the defendant acknowledging that the plaintiff was employed with the defendant as warehouse manager (central warehouse, Topsia) on 10th September and due to certain contingencies his salary for the month of January, 2009 and February, 2009 has been disbursed as cash payment. The said certificate gives particulars of his monthly salary wherefrom it appears that the net salary receivable by him is Rs. 14,350/- per month. The witness stated that the payment of salary was irregular The salary used to be sent to the bank and the employer used to send salary sheet from the office.
11. When the salary sheet are received from the office then only the employee could actually ascertain the month for which the salary was paid. The witness used to take photocopy of the salary sheet. He has referred to exhibit-D which is a salary sheet of various employees. The said exhibit D
12. consists of salary sheets for the month of January, 2009 to October, 2009. The salary sheet produced by the witness shows that for the month of October, 2009 he received Rs. 14,350/- as the net salary after deductions of provident fund and tax. The witness stated that the witness could get the salary sheet up to October, 2009 and the entire structure of the company thereafter had undergone a change. He further stated that after October, 2009 the entire functioning of the company got disrupted and the said company was in a financial mess. The witness referred to the letter of resignation dated 24th July, 2010 that was tendered personally by him as well as send by E-mail. He also stated that he had on few occasions visited the office of the defendant and demanded his arrear salaries and other entitlements. The defendant and his directors however have refused to meet him and pay his lawful dues. Finally he sent a legal notice dated 31st January, 2011. The said notice was also sent to the Directors of the said company namely Bharat Jail and Ila Jain. The said notice was received by the company (exhibit G). According to the witnesses the defendant did not answer to the said notice nor had taken any step to pay the dues of the plaintiff. The witness stated that at the time of filing the appeal dues were Rs. 10,75,421/- but now at the time of filing of the suit with interest the present claim is Rs. 13,81,961/-
13. The record shows that the copy of the writ of summons along with copy of the plaint was served on the defendant on 4th January, 2013 and personal service and the service was also affected by registered post as would appear from the postal acknowledgement receipt dated 16th January, 2013. The report filed by the office was that in spite of service of the said writ of summons defendant did not enter appearance in the suit.
14. The oral as well as documentary evidence would show that the plaintiff was appointed and was receiving a net salary of Rs. 14,350/- in January, 2009. In addition to the aforesaid the plaintiff was also receiving the certificate, allowances and service benefits as mentioned in the certificate dated July 25, 2007. The plaintiff has also produced salary sheet for the month of January, 2009 till October, 2009 showing that he was receiving of salary of Rs. 14,350/-. The letter of resignation and the demand for the arrear salary and other service benefits as claimed in the suit are also exhibited in these proceedings.
15. Although the plaintiff is not obliged to give any evidence in the suit in view of the failure of the defendant to appear and contest the proceeding the plaintiff appeared and adduce evidence as summarized above. The defendant had the ample opportunity to appear and contest the suit. The claim made in the plaint to the extent allowed has remained uncontroverted. I am satisfied with the evidence in respect of the said claim.
16. The plaintiff has been able to establish his claim in so far as the following heads of claim are concerned as mentioned in paragraph 7 of the plaint:-
The rest claims are, however, not proved and accordingly disallowed.
17. On consideration of oral and documentary evidence in my view the plaintiff is entitled to a decree for a sum of Rs. 4,77,623/-.
18. The plaintiff should have received the aforesaid sum on resignation and having been deprived of utilizing the said amount inasmuch as having regard to the fact that the said amount if deposited in a short term fixed deposit with a nationalized bank would have fetched interest the plaintiff shall be entitled to interest at the rate of 10 per cent per annum on the aforesaid sums on and from October, 2010 till realization. The plaintiff is entitled to cost assessed at Rs. 10,000/-.
18. The suit is accordingly decreed on the aforesaid terms. The department is directed to draw up the decree expeditiously. Urgent Xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.
