@JUDGMENTTAG-ORDER
Jawad Rahim
1. Employer is in revision against the decree passed in favour of its employee in S.C.No. 108/2009 on the file of X Addl. Small Cause Judge, Bangalore for a for a sum of Rs.31,551/- with future interest at the rate of 12%p.a. on Rs, 30,100/- and with cost
2. Heard learned counsel for the petitioners and respondent.
3. Contextual facts to which learned counsel have adverted to and is also manifest from the records reveal Mr. Vijay claiming that he was appointed by the first defendant M/s. Emas Engineering & Constructors (P) Ltd. as a Secretary with effect from 22.08.2005 sought for a decree In a sum of Rs.31,551/-. In support of the said claim, he averred he was appointed on a monthly eatery of Rs. 10,000/- with effect from 22.08.2005 and he was confirmed in the post on 22.11.2005 at an increased of salary to Rs.11,250/- p.m. from 01.04.2006. It was periodically enhanced to Rs. 14,000/-p.m. from 01.04.2007 and then to Rs.16000/- p.m. from 01.04.2008. According to him, he worked consciously and received salary upto 15.09.2006 but the Company requested him to submit his resignation. He requested the officia is of the Company to prepare his final bill and settle the accounts which request was granted and the officia is of the Company prepered proforme of settlement on 10.12.2003. Such a proforme of full and final settlement was prepared in consultation with aft superior officers and as per the calculation of the plaintiff, the Company was due in a sum of Rs, B5 832/- out of which they paid only Rs.55,732/- through a chaque dated 05.12.2008 but withheld Rs.30,100/-. He sent an e-mall on 13.12.2008 which was replied on 02.01.2009 denying his claim, He thus filed a suit for recovery of the amount
4. The petitioner/defendants the unit claim on the basis that terms of employment of the plaintiff were in terms of Annexure A and were subject to several terms and conditions. One of the trams was incase either party terminates the contract of service, it should be done with one month''s prior notice Referring to It was contended that the plaintiff had not: given a month''s advance notice and therefore he should he considered as having abandoned the post/employment at his own peril. He was liable to pay the amount: equal to one month''s salary for absenting from duty.
5. Referring his claim for performance bonus and other perks, it is everred it is on the buffs, of performance assessment by superiors and such an assessment would be the basis to grant him performance bonus only at the end of the year Lastly. It was averred that plaintiff is guilty of breach of terms of employment demonstrating his act of disobedience to the employer and failing to perform his duty. In short, the employers/defendants up a claim against the plaintiff white denying the suit liability.
6. Based on material propositions in the pleadings, the parties went to trial in which the respondent/plaintiff tendered evidence as PW1 and has railed on 15 documents white en behalf of petitioner/employer, one Sri. Narayana Mohan was examined as DW1 and two documents wars marked. The learned trial Judge considered the evidence and opined plaintiffs evidence outweighed the ples of the defendants/employer and decreed the suit. Assailing it, they are in revision.
7. Learned counsel did endeavour to impress upon the Court that conduct of employee is paramount and ha should establish to his entitlement to seek amount either by way of salary or by way of perks or allowance. In the regard he drew my attention to Annexure-A, the appointment fetter which spalls out the entitlement of the plaintiff and also the terms and conditions, He referred to clause 6, 6 of Annexure-A which mandates either party shall be an titled to terminate contract of service by giving one month''s prior notice and referring to clause 5,25, he submits performance bonus is granted based cm the performance assessment of the employee for the entire year If there be any assessment in his favour, the bonus will be paid yearly,
8. I have already adverted to ills contention that plaintiff had left the employment on his own volition against the interest of the employer But the plaintiff has In his evidence countered the said allegation, In this revision, copy of the resignation letter dated 03.12.2008 is filed which spelis out that the plaintiff/employee his categorically in unequivocal terms mentioned in Para 1 Itself that there was a discussion between employer and him on 29.11.2008 regarding Management''s decision directing him to submit his resignation. He his also referred to the SMS sent by the employer directing him to handover the charge and acting on it, he sent his resignation. On this basis, It Is urged that it was not voluntary resignation but it was under duress or compulsion by the employer, Therefore, he submits clause 6.6 was given a gobye because the employers have directed vide SMS also to handover the charge.
9. Though leaned counsel for the defendants/employer has disputed the submission of the employee, he fairly submits that after receipt of it, the employer has not sent any reply or responded to the resignation denying the statement that there was a discussion on 29.11.2008. We are dealing with a case of employer and employee and therefore must keep in mind the dominant position of the employer and the submissive place to which the employee is placed. Annexure A does not refer consequence of not issuing a notice of termination. Therefore, even if it is to be presured that the respondent/plaintiff had not given one month''s notice terminating his service it is difficult to hold that consequence is of such a nature which would disentitle him to salary or other benefits.
10. I, therefore discount the ground urged against the impugned order that for want of a month''s prior notice, the claim of the employee was untenable. Pertinent it would be to obseve It was in contemplation of the employer that if such an employee abandons work, he should be disentitled to any benefit, such a clause should have been incorporated in the appointment letter itself. Since, it is not done such a ground is untenable
11. Now, we come to the second claim regarding performance bonus. Undoubtedly the performance bonus would be paid to an employee depending on performance assessed by the superiors, In the instant case the contention is his performance was such that he was not entitled to performance bonus and even If he was entitled to, It was payable only he had worked for the entire year. I do not find any such condition in Annexure-E, the appointment letter. Beside such a stand is belied by the documents filed by the defendants themselves which are at Annexure and Annexure-F In both these documents dated 26.05.2007 and 16.06.2008, the petitioners/employer have communicated to the respondent/employee that there was detailed and elaborate Performance Assessment exercise undertaken by the Company for all Staff, in consultation with concerned reporting officers and the next lavel of PlC''s at the level of General Manager and finally reviewed and approved by than Managing Director to enhance the salary of the employee viz., the plaintiff with effect from 01.04.2007 and 01.04. ZOOS respectively as intimated In the letters. It therefore leaves no scope for doubt that his performance was assessed and finding that performance assessment has entitled him to increase in pay, his pay was refixed to higher scale. Undoubtedly, the performance bonus is linked with such an assessment Consequently, when his performance was assessed finding him fit to be given, his salary would be enhanced under new fitment and he will he entitled to bonus under the said claim, Therefore when the employer himself admits that the respondent/employee was found entitled to increase salary on the basis of performance assessment, now, he cannot put a volte face to show that the respondent/plaintiff was not entitled to performance bonus as his assessment was poor or did not for the whole year. If we accept this proposition then the ground urged by the employer vide Annexure E and F would render nugatory and the plea of the employer/defendant is not only unsustained but is a stand which is prevaricating, Therefore the second ground also fails.
12. Besides, as could fee seen even if the employer, had such a ground in its favour, we expect evidence to be lead be for the trial Court to enable the trial. Court to arrive at a just decision Except examining one witness as DW1 and his ocular testimony, no records relating to his employment or regarding his weak performance nor any accounts are produced from its Accounts Branch to show what was paid and what was due. It must also be noticed that the suit is not directly filed but after issuing, of a notice on demand. The employer has sent a reply to it in which also there is no mention of dental to the fact stated by the employee in his resignation letter that after discussion as directed by the employers, he had submitted his resignation. Non denial to the material facts pleaded In the plaint or any document has to be examined with reference to Order VIII Rule 3 and 4 of the Code of Civil Procedure. It envisages:
Rule 3: Dental to be specific It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages Rule 4- Evasive (sic) Where a defendant denies an allegation of fact in the plaint, the must not do so evasively, but answer the point of must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money it shall not be sufficient to deny that be received that particular amount, hut he must deny that be received that sum or any part thereof, or (sic) set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with thorn circumstances.
Rule 4 refers to the consequences. This is a case where the employer has been evasive in his pleading, miser in his words or expression consequent to which the clear unequivocal statements in the plaint have met with only general denial and no detailed statement on fact is made.
13. In the circumstances, pleas that are advanced in this revision action are those which were not canvassed before the trial Court or canvassed with half hearted action.
14. On perusal of the reasons assigned by learned trial Judge, 1 am satisfied the evidence on record has been examined and appreciated in the correct perspective resulting in decreeing the suit which was the only logical conclusion. In this view I find no merit in the revision and It is dismissed affirming the judgment and decree of the trial Court The respondent/plaintiff is entitled to cost throughout including the cost of this proceedings which are fixed Rs.5,000/.
