Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 1469 (KAR)

Manjunath G v. S. G. R. Build Tech Pvt. Ltd.

2019-06-28

H.P.SANDESH

body2019
JUDGMENT : H.P. SANDESH, J. 1. This appeal is filed against the judgment and decree of dismissal of suit dated 06.01.2014 passed in O.S. No.4421/2011 on the file of XIX Additional City Civil and Sessions Judge, Bengaluru. 2. The parties are referred in the original ranking as plaintiff and defendant for the convenience of the Court. 3. The present appeal is filed by the plaintiff/appellant, who filed the suit before the trial Court seeking for the relief of damages. The appellant contends that he was appointed as a Manager (Marketing) vide appointment order dated 06.12.2010 in the pay scale of Rs.18,000/- per month by the defendant, who is the builder and developer of properties viz. apartment, commercial complex etc., in Bengaluru. The plaintiff was discharging his duties honestly and diligently. In terms of appointment, he was also entitled for incentives, if any flats are booked. Accordingly, the plaintiff booked 13 apartments for the defendant within a period of 2 months. In addition to his regular duties, the plaintiff has worked for a period of 2 months. Now, he has been removed from service arbitrarily when the plaintiff noticing illegality of the structure brought to the notice of defendant, which would be demolished by the concerned civil authority. When the said fact was brought to the notice of the defendant, they arbitrarily removed from the service and did not comply the terms and conditions of his appointment. The defendant declined to disclose the reasons for his removal and while removing from service, he was offered payment of Rs.28,222/- and plaintiff questioned the same and caused legal notice dated 01.03.2011 and without any other alternative, the plaintiff was forced to approach the Court. The plaintiff in the plaint claimed salary for 22 months at the rate of Rs.18,000/- per month amounting to Rs.3,96,000/- and commission on sale of 13 flats at 0.25% to the tune of Rs.1,35,000/- after deducting the amount of Rs.28,000/- i.e., Rs.1,06,777/- and also claimed Rs.2,00,000/- towards compensation for humiliation and mental agony. In all, he claimed Rs.7,02,777/-. 4. The plaintiff in the plaint claimed salary for 22 months at the rate of Rs.18,000/- per month amounting to Rs.3,96,000/- and commission on sale of 13 flats at 0.25% to the tune of Rs.1,35,000/- after deducting the amount of Rs.28,000/- i.e., Rs.1,06,777/- and also claimed Rs.2,00,000/- towards compensation for humiliation and mental agony. In all, he claimed Rs.7,02,777/-. 4. The defendant, after service of notice, appeared through the counsel and filed written statement denying the allegations made in the plaint and contended that the averments made in the plaint are all false and not liable to pay any amount and the plaintiff has been relived from the service after making the payment of incentives and the salary for the month of February. The plaintiff had booked only 8 flats and had received the incentives. The other contention of the defendant is that in fact, the plaintiff started playing double game both with the customer as well as the management of the company in the price of the flats, so as to make monetary gains out of the difference rate and he was quoting the rate higher than the company rates and the behavious of the plaintiff' was not in the interest of the Company and there were large number of complaints against him and hence, the service of plaintiff did not continue. However, it is also contended that on 17.02.2011, the plaintiff has sent a e-mail requesting the defendant to grant an amount of Rs.2,00,000/- as salary advance, which was not considered by the defendant, since the claim is not bonafide and intend to cause wrongful loss to the defendant and his request was rejected. As full and final settlement, he was relived from the service. 5. The Court below after having considered the pleadings of the plaintiff and also the defendant, framed the following issues: 1. Whether the plaintiff proves that he has been arbitrarily and illegally terminated by the defendant from his service in violation of the terms of the contract of appointment order 6/12/2010? 2. Whether the plaintiff proves that the defendant is liable to pay him salary for 22 months at the rate of Rs.18,000/- per month as claimed in the suit? 3. Whether the plaintiff proves that the defendant is also liable to pay the commission charges and damages as claimed? 4. Whether the plaintiff is entitled for a judgment and decree as sought for? 3. Whether the plaintiff proves that the defendant is also liable to pay the commission charges and damages as claimed? 4. Whether the plaintiff is entitled for a judgment and decree as sought for? 5. To what order or decree? 6. The plaintiff, in order to prove his case, he examined himself as P.W.1 and got marked documents as Exs.P.1 to P17. On the other hand, the defendant examined one witness as D.W.1 and got marked documents as Exs.D.1 to D14. 7. The Court below after having heard the arguments of both plaintiff as well as the defendant, dismissed the suit of the plaintiff answering issues Nos.1 to 3 as 'negative' and come to a conclusion that plaintiff failed to prove that he has been terminated arbitrarily and illegally and also comes to a conclusion that the defendant is not entitled for salary of 22 months. The Court below also answered issue No.3 that the defendant is not liable to pay the Commission charges as claimed. 8. Being aggrieved by the judgment and decree of dismissal of suit, the present appeal is filed. The main contention in the appeal by the plaintiff is that the trial Judge has committed a serious error in holding that the respondent reserved right to terminate the service of the appellant without issuing any notice during probation. Admittedly, it was not a discharge simpliciter by the respondent. The basic principle was lost sight by the trial Judge. The trial Judge did not consider the fact that termination of service without notice was not absolute, it was subject to another clause in the appointment order, which said that either of the parties must issue one month prior notice before terminating the service contract in writing. The respondent pleaded that the appellant abandoned the job. If it were so, a call letter could have been issued by the respondent calling upon the appellant to report for duties forthwith, failing which, his lien on the job was liable for termination. However, the learned Judge came to a conclusion that the appellant has received some amount offered by the respondent as full and final settlement, without there being any pleading and evidence to this effect by the respondent. The Court below relied upon the stray sentence in the cross examination of the appellant and dismissed the suit. However, the learned Judge came to a conclusion that the appellant has received some amount offered by the respondent as full and final settlement, without there being any pleading and evidence to this effect by the respondent. The Court below relied upon the stray sentence in the cross examination of the appellant and dismissed the suit. The very approach of the trial Court is erroneous and failed to take note of the fact that the appointment period was for a period of 2 years and within a span of 2 months, he has been removed and hence, the very finding of the trial Court is liable to be set-aside. 9. The learned counsel appearing for the appellant in his arguments, he would contend that Ex.P.1 Appointment Order conditions are very clear i.e., clause 19(a) to (c) which binds both the parties. The plaintiff also produced Ex.Ps.4 to 16. Flats booked through the plaintiffs and cancelled five flats. Since the flats are not legally constructed and there was no permission from the authority, the very allegation made against the plaintiff is not proved and hence, the plaintiff is entitled for the relief as claimed in the plaint. There is no enquiry against the plaintiff for his mis-conduct. The very contract is governed by the terms of appointment and the word used is for "two years". When such being the terms and conditions of his appointment, the very removal is arbitrary and it amounts to breach of contract. The plaintiff is entitled not only for salary for a period of 22 months, he is also entitled for compensation and commission in respect of other five flats, which were booked through the plaintiff. Hence, the impugned judgment and decree is liable to be set-aside. 10. On the other hand, the learned counsel appearing for respondent would contend that the plaintiff is a probationer and his probationary period has not been completed and there was no any lien over the employment. In terms of the appointment order, clause 19(a) is clear that no notice is required to remove the probationer and accordingly, no notice was issued to him. In terms of the appointment order, clause 19(a) is clear that no notice is required to remove the probationer and accordingly, no notice was issued to him. Ex.P.1 is clear that he is entitled only for commission if sale takes place and sale deed did not take place in all the 13 flats during his service and hence, the incentive was paid in respect of 8 flats and he is not entitled for incentives for 5 flats and also termination is legal and hence, he is not entitled for any salary or for any compensation for his removable and the Court below meticulously considered the case of the plaintiff and the defence of the defendant, rightly comes to a conclusion that suit is liable to be dismissed. Accordingly, suit is dismissed. 11. Having heard the arguments of plaintiff's counsel and also defendant's counsel, the point that would arise for my consideration is; Whether the Court below has committed an error in dismissing the suit as contended in answering the issue Nos.1 to 3 as negative? 12. Having heard the arguments of both counsel and also on perusal of the material available on record, there is no dispute with regard to the fact that the plaintiff was appointed as Manager (Marketing) in the pay scale of Rs.18,000/- per month and in terms of the appointment order i.e., Ex.P.1 period of appointment shall be two years and his probationary period was six months from the date of appointment. In terms of Clause 1(d), the defendant agreed to pay incentive at 0.25 percent on direct sales of apartment if it is done through the plaintiff. It is also important to note that in terms of the appointment order, it is clear that Clause-2 says that plaintiff shall serve in the said company for a minimum period of 2 years and till completion of any specific work assigned which ever is later and probationary period will be six months in terms of Clause-3 and further, after completion of probationary, he is entitled for salary at Rs.20,000/-. It is also clear in the Clause No.19 that no notice or compensation is required to be served during probationary period as per Clause 19(a). It is also clear in the Clause No.19 that no notice or compensation is required to be served during probationary period as per Clause 19(a). One month notice to be served by either side for resignation or termination in terms of Clause-b. The company reserves the right to terminate his service without notice or compensation for loss of confidence or for any act of misconduct or if found is overall performance unsatisfactory in terms of Clause-C. 13. I have already pointed out that no dispute with regard to the appointment and removal from the service and only contention has to be considered, whether he is entitled for the notice and in terms of clause 19(a), it is specific that no notice or compensation is required to be served during probationary period. In the case on hand, admittedly, probationary period is not completed and he worked only for 2 months 14 days and hence, the very contention that no notice was issued and termination was arbitrary cannot be accepted. It is further important to note that in terms of Clause 19(c), the company reserves the right to terminate his service without notice or compensation for loss of confidence or for any act of misconduct. No doubt, in the case on hand, no notice are issued against him, though the defendant would contend that his conduct was not correct and he was playing double game with the customers and also with the company, in order to make wrongful gain and right is reserved to remove himself from service and his performance is unsatisfactory. In the case on hand, it has to be noted that in the evidence of P.W.1, he categorically admitted that he was paid incentive as per Ex.D2 and no dispute with regard to the same. He also admits that another payment was made in terms of Ex-D3 as the salary for the month of January, 2011 and also admits the payment of salary for the month of February. 14. The main contention of the appellant/plaintiff in the present appeal is that, the incentive in respect of five flats was not paid. But in the cross-examination, he admits that flats booked were cancelled under Exs.P12 to P16. Further he also admits that he is entitled for incentives at the rate of 0.25% on direct sales only. 15. 14. The main contention of the appellant/plaintiff in the present appeal is that, the incentive in respect of five flats was not paid. But in the cross-examination, he admits that flats booked were cancelled under Exs.P12 to P16. Further he also admits that he is entitled for incentives at the rate of 0.25% on direct sales only. 15. In the case on hand, it is to be noted that admittedly, sale has taken place in respect of eight flats and hence, it is clear that for the sale transaction in respect of eight flats which has taken place, the defendant has paid the incentives in terms of Ex-D2, after deducting the tax to the tune of Rs.28,222/-. Now, the grievance of the plaintiff is only with regard to the incentives for the remaining five flats which the plaintiff has claimed. In view of the admission that the said flats which were booked was cancelled under Exs.P12 to P16, though it is contended that the sale in respect of those flats were cancelled on account of illegality and the said transaction is not legal, it is evident from the records the concerned authority has given the clearance certificate in respect of the said flats also and the same has not been disputed. Hence, the very contention of the plaintiff cannot be accepted. 16. The other contention of the learned counsel for the appellant is that the plaintiff is entitled for salary of 22 months. However, in terms of Ex.P1, his service was for a period of two years since Clause No.2 of the appointment order stipulates that he has to serve the company for a minimum period of two years or till the completion of any specific work assigned, whichever is later. Hence, the said condition would not come to the aid of the plaintiff for the reason that he was a probationer. In terms of Clause-19(a), the company reserves right to terminate the services of the plaintiff without any notice and the plaintiff cannot expect any compensation for loss of confidence or for any act of misconduct or if found the performance is unsatisfactory. 17. As already pointed out, no memo was given to the plaintiff and no notice is required to be issued under Clause-19(a) since he was a probationer. 17. As already pointed out, no memo was given to the plaintiff and no notice is required to be issued under Clause-19(a) since he was a probationer. Apart from that, during the probationary period, it is the wish and will of the defendant to continue or to remove the plaintiff from service without any notice and compensation is also not required to be given to him. In the case on hand, admittedly, the plaintiff was relieved from service within 21/2 months of his appointment. Hence, he is not entitled for salary for the remaining 22 months and any compensation as claimed by him in the plaint. 18. It is further important to note that, in the cross-examination of P.W.1, he categorically admits that, as per the appointment order, the defendant reserves the right to terminate his service without any notice and Clause-19(a) is very clear that he can be terminated from service without any notice during probationary period. The fact that he was a probationer is also not in dispute. 19. No doubt, the plaintiff has produced Exs.P4 to P16, flat booking applications which confirms the fact that the flats are booked by the plaintiff and in some of the applications, there is a reference to the date of agreement of sale. Some of the exhibits does not contain the date of sale agreement and they are blank. Hence, it is clear that the transaction did not take place. When such being the case and when the bookings are cancelled in terms of Exs.P12 to P16 as admitted by P.W.1, it s clear that he is not entitled for incentives as agreed in terms of Ex.P1 in respect of cancelled booking and hence, his claim cannot be accepted. 20. D.W.1 in his evidence reiterates the averments in the written statement in the form of an affidavit. Though it is elicited that flat No.J-003 was booked by the plaintiff earlier, he categorically says that subsequently, the plaintiff got cancelled the same and he does not know as to why the plaintiff got cancelled the same. The D.W.1 in his cross-examination also categorically says that the B.B.M.P. has given permission to sell the flats and they have also paid the full occupancy price to B.B.M.P. and he can produce the same. The D.W.1 in his cross-examination also categorically says that the B.B.M.P. has given permission to sell the flats and they have also paid the full occupancy price to B.B.M.P. and he can produce the same. Hence, the very contention of the plaintiff that 'J' series and 'K' series flats were not permitted to be sold by the Government cannot be accepted. 21. Having taken note of the answers elicited from the mouth of P.W.1 i.e., the plaintiff and nothing is elicited in the cross-examination of D.W.1 in respect of the claim made by the plaintiff in the plaint. As already pointed out, sale transaction in respect of five flats did not take place and the P.W.1 also in his evidence categorically admits that sale transaction in respect of five flats were cancelled. In view of the discussions made above with regard to Clause-19(a) of the appointment order, it is the prerogative right of the defendant to continue the service of the plaintiff or to relieve him from service during probationary period without notice. 22. In the case on hand, the probation of the plaintiff has not been declared and he was relieved from service within 21/2 months of his appointment. Hence, no right accrues to the plaintiff to contend that the very termination is arbitrary and he is not entitled for the amount as claimed in the plaint. The trial Court has discussed in detail the evidence of P.W.1, D.W.1 and documentary evidence on record and after considering the contentions urged by the parties has come to the conclusion that the plaintiff is not entitled for the relief and rightly answered issue Nos.1 to 3 as 'negative'. Hence, after giving anxious consideration, I do not find any material to come to the other conclusion to reverse the finding of the trial Court. Therefore, I do not find any merit in the appeal. In view of the discussions made above, I pass the following; ORDER The appeal is dismissed.