IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY R.F.A.No.736 OF 2012 BETWEEN:
M/s.Hindustan Aeronautics Limited, R.W.R. & D.C.
Post Bag No.1783, Bangalore – 560 017, Represented by its Chief Manager (HR), Sri S.K.Ramachandraiah. .. Appellant ( By Sri Syed Kashif Ali, Advocate for M/s.Sundaraswamy & Ramdas, Advocates ) AND:
1. S.M.Sivagami, D/o Sri S.Murugesan, Aged about 32 years, No.65, Moolakothalam Road, Ramanathapuram-623 501, Ramanathapura District, Tamil Nadu.
2. Sri C.Meiaraj, S/o Sri M.Chelladurai, Aged about 34 years, No.C-5, Government College Of Technology, Old Staff Quarters, Cowley Brown Road, R.S.Puram, Coimbator – 641 002. .. Respondents ( By Smt.C.Geetha, Advocate ) This Regular First Appeal is filed under Section 96 r/w. Rules 1 and 2 of CPC against the judgment and decree dated 17.12.2011, passed in O.S.No.4433/2009, on the file of the XVI Addl.City Civil & Sessions Judge, Bangalore, dismissing the suit for recovery of money.
This Regular First Appeal coming on for Hearing, this day, the Court delivered the following:
JUDGMENT The suit of the present plaintiff in O.S.No.4433/2009, in the Court of learned XVI Addl.City Civil & Sessions Judge, Bengaluru City, (CCH No.12), (hereinafter for brevity referred to as `trial Court’), filed against the present respondents for the relief of recovery of a sum of `3,28,959/- with interest thereupon, came to be dismissed by the judgment and decree dated 17.12.2011. It is against the said judgment and decree, the plaintiff has preferred this appeal.
2. The summary of the case of the plaintiff in the trial Court is that the plaintiff is a Public Sector Undertaking and has been carrying on the activity of manufacture and services of defence equipments. The 1st defendant (respondent No.1 herein) joined the plaintiff-Company as an Executive Trainee under the scheme of Junior Executive Trainee. She had to serve with the plaintiff for a period of five years from the date of her joining and she had undertaken to refund the expenditure incurred by the plaintiff in her training, including salary and allowances, to the tune of `3 lakhs as per the appointment letter dated 10.4.2007. The appointment order dated 10.4.2007 was issued to the 1st defendant. Both defendant Nos.1 and 2 entered into an Agreement dated 31.5.2007 with the plaintiff, wherein the 2nd defendant has stood as a surety for the 1st defendant and in case of breach of agreement, both the defendants were agreed to be held liable jointly and severally. As per the agreement, the 1st defendant had to complete a probationary period of one year, including twelve weeks specialised training and also should have served the plaintiff-Company at least for a period of four years, excluding the probationary period of one year. However, after joining the company and serving it for thirteen months, the 1st defendant remained unauthorisedly absent from 2.7.2008. Thus, she has remained absent for the remaining duration of fortyseven months. Since she has not served the company for sixty months from 31.5.2007, which was against the terms of the Agreement and had remained unauthorisedly absent for the remaining duration of fortyseven months, she was liable to pay to the Company the amount agreed in the Agreement which is a sum of `3 lakhs. As such, a legal notice to the 1st defendant was also issued on 23.4.2009. The 1st defendant has given a vague reply to the same vide her reply dated 12.5.2009. However, since she failed to make good the amount as per the agreement to the plaintiff-Company, the plaintiff was constrained to institute the suit against both the defendants.
3. In response to the summons served upon them, both the defendants appeared through their counsels and filed their respective written statements. The 1st defendant in her written statement though admitted that she was appointed as an Engineer with the plaintiff- Company, but, she contended that the agreement that was got executed by her was undated. She was initially appointed as an Engineer for specialised training for a period of twelve weeks. However, she stated that, probationary period was for one year, including the specialised training. She admitted that the provisional appointment order was issued to her on 10.4.2007 and stated that she had successfully completed the period of probation and the posting was also confirmed on 10.4.2008. She stated that a tripartite agreement was entered into and signed by her and defendant No.2 on 29.5.2007. She highlighted that one of the terms of the said agreement permits an employee to go on unauthorised absence also. She contended that, after successful completion of the probationary period of one year i.e., from 10.4.2007, she being an employee of the plaintiff-Company, was entitled to avail unauthorised leave without pay and study leave and the period of absence or leave should have been excluded. She stated that she had valid reasons for her alleged absence. The ill-health of her mother and her (defendant No.1) marriage and her subsequent pregnancy were all made her to be away from her employment. However, she contended that she has been regularly intimating and informing the plaintiff about all these developments, including through her various letters. She stated that she has availed leave with the concurrence of the plaintiff and she has never committed any breach nor violated any of the rules. With this, she prayed for dismissal of the suit.
The defendant No.2 in his written statement denied all the plaint averments. He specifically denied that he, joined by defendant No.1, has executed any agreement with the plaintiff on 31.5.2007. However, he has stated that, himself, joined by defendant No.1 and the plaintiff, have signed the agreement only on 29.5.2007. He has stated that he is not all concerned about the appointment of defendant No.1 and he is in no way liable to pay any amount as claimed by the plaintiff. He also denied that he was either a guarantor or a surety or even a co-obligant under the Agreement.
4. Based on the pleadings of the parties, the trial Court framed the following issues :
1. Whether the plaintiff proves that the defendant No.1 joined the service of the plaintiff Company as an Executive Trainee Engineer Grade-II in the Scheme of Junior Executive Trainee for imparting trainee etc.
2. Whether the plaintiff proves that the defendants 1 and 2 jointly executed an agreement in favour of the plaintiff on 31.5.2007 by agreeing to the terms and conditions embedded thereunder, which also stipulates that the 1st defendant shall serve minimum for a period 60 months including the Probationary Period of one year which includes specialised training of 12 weeks?
3. Whether the plaintiff further proves that the defendants 1 and 2 violated the terms of the agreement dated 31.5.2007 by way of 1st defendant remaining unauthorised absent for a period of 47 months and only working for total period of 13 months?
4. Whether the plaintiff further proves that the defendants, by virtue of one of the terms of the agreement having violated the terms, are liable to be reimburse the salary and other allowances paid during the Probationary period paid to the 1st defendant subject to a maximum of Rs.3,00,000/-?
5. Whether the plaintiff is entitled for Rs.3,28,959/- as claimed together with interest?
6. To what order or decree?
In support of the plaintiff’s case, the plaintiff examined one Sri S.K.Ramachandraiah as PW-1 and got marked documents from Exs.P-1 to P-7(a). The defendant No.1 got herself examined as DW-1 and documents from Exs.D-1 to D-11(a) were marked.
After hearing both side, the trial Court by its judgment and decree dated 17.12.2011, answered issue Nos.1 and 2 in the affirmative and issue Nos.3, 4 and 5 in the negative and dismissed the suit of the plaintiff. It is against the said judgment and decree, the plaintiff has preferred this appeal.
5. Lower Court records were called for and the same are placed before this Court.
6. Heard the arguments of the learned counsel for the appellant. In spite of granting sufficient opportunity, the learned counsel for respondents did not address their arguments.
7. Perused the materials placed before this Court, including the memorandum of appeal and the impugned judgment.
8. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
9. In the light of the above, the points that arise for my consideration are :
(1) Whether the plaintiff is entitled for the suit claim as prayed in the plaint?
(2) Whether the judgment and decree under appeal deserves any interference at the hands of this Court?
10. It is not in dispute that the 1st defendant had joined the plaintiff-Company under an appointment order dated 10.4.2007. The evidence of PW-1 to the effect that at the time of joining, both defendant Nos.1 and 2 had entered into an agreement with the plaintiff- Company, which Agreement is dated 31.5.2007 and that as per the said agreement, the 1st defendant would be in probation for a period of one year, including twelve weeks specialised training, is not specifically denied in the cross-examination of PW-1. The said witness has got marked the said Agreement at Ex.P-3. The evidence of PW-1 to the effect that the very same agreement has further provided that the 1st defendant shall serve the Company for a period of four years, excluding the probationary period of one year and that if any of the terms and conditions regarding the period of the service is violated, then, the plaintiff shall have a right to suspend or terminate the services of the 1st defendant and would entitle to seek for reimbursement of the cost of the training from both the defendants, has also not been specifically denied in the cross-examination of PW-1. However, the evidence of PW-1 to the effect that the 1st defendant had remained unauthorisedly absent from 2.7.2008 has been denied in the cross-examination of PW-1. However, PW-1 in his cross-examination has stated that the 1st defendant was provisionally confirmed on completion of her probationary period in the month of June 2008. The suggestion made to PW-1 in his cross-examination to the effect that the alleged absence of 1st defendant from her duty, which according to the plaintiff, is from 2.7.2008, was not unauthorised absence and that she had been regularly requesting the plaintiff-Company for granting her the leave, were not admitted by PW-1. Further, the suggestions made to PW-1 in his cross-examination that the 1st defendant had applied for maternity leave in September 2008 and the same was within the knowledge of the plaintiff was also not admitted by PW-1.
PW-1 in his support, apart from marking the Agreement said to have been entered into between the plaintiff and the defendants and dated 31.5.2007 at Ex.P-3, has also produced a copy of the legal notice dated 23.4.2009, said to have been sent to the defendants and marked it at Ex.P-4. He has produced a copy of the reply notice received by the plaintiff and sent to it on behalf of defendant No.1 at Ex.P-7.
11. The 1st defendant as DW-1 in her evidence has reiterated the contentions taken up by her in her written statement. Though she generally denied the plaint averments, but, she herself has stated in her examination-in-chief that she was appointed as a Junior Engineer and provisional appointment order was issued to her on 10.4.2007. She admitted that the said appointment order prescribe a probationary period of twelve months, but, claimed that she has successfully completed the period of probation and her posting was also confirmed on 10.4.2008. She also stated that she, joined by defendant No.2 and plaintiff, entered into a tripartite agreement, which was signed by her and the 2nd defendant on 29.5.2007 as directed by the plaintiff- Company. However, the witness has stated that though she was very regular in attending the work and discharging her duties, but, due to hospitalisation of her mother, whose health condition was very critical and worsen, she had to take care of her and remained away from her employment. In that regard, she had intimated the plaintiff-Company through her letters and Medical Certificates. She has further stated that she got married as early as on 11.6.2007, for which also, she had to extend her leave. Subsequently, due to Gynecological treatment, she had to continue her leave and due to her poor health condition during the period of pregnancy, she could not attend the plaintiff-Company. As such, explaining all these reasons, the legal notice received by her has been suitably replied by her. The witness has further stated that when she was intended to report back to the duty, she was surprised to receive the legal notice sent to her by the plaintiff-Company claiming a sum of `3,28,959/-. She has stated that she is not at all liable to pay any such amount to the plaintiff-Company.
In her support, she got marked copy of her Marriage Certificate issued by the Tahsildar of Peraiyur Taluk, Madurai District, at Ex.D-1, four Medical Certificates from Exs.D-2 to D-5, a Birth Certificate to show that she has given birth to a female child at Ex.D-6, the copy of her alleged letter dated 23.11.2009, addressed to the plaintiff at Ex.D-7, three postal acknowledgment cards from Exs.D-8 to D-10, plaintiff’s letter dated 2.12.2009, intimating her about termination from service at Ex.D-11 and a copy of the termination order at Ex.D-11(a).
DW-1 in her cross-examination admitted a suggestion as true that she entered into an agreement with the plaintiff-company as per Ex.P-3 and she has signed on all pages of Ex.P-3. She has identified her signature in Ex.P-3, which was marked at Ex.P-3(a) series. She also identified the signatures of defendant No.2 – surety Sri Meiaraj in the very same document and they were got marked as Ex.P-3(b) series. She also admitted a suggestion that she served the plaintiff- Company for a period of thirteen months, however, she denied that, thereafter, she remained unauthorisedly absent.
12. In the light of the above, it is the argument of learned counsel for the appellant/plaintiff that the evidence of PW-1 and DW-1 clearly go to show that the defendant No.1 after joining the plaintiff-Company, had served the plaintiff-Company only for a period of thirteen months and thereafter, she did not attend. Though she has forwarded some excuses for her unauthorised absence, but, the same was not falling within the parameters of Agreement at Ex.P-3. PW-1 has further stated that, considering her continued unauthorised absence without any sanctioning of the leave, the plaintiff-Company has terminated her from the services vide its order of termination dated 16.1.2009, which she did not challenge. Further, her act of remaining away from the services with no proper reasoning and excuse would result in she leaving the services of the Company without any valid reasons. As such, as per the terms of the Agreement at Ex.P-3, she is liable to compensate the appellant-Company, subject to a maximum amount of `3 lakhs. As such, though the plaintiff is entitled for recovery of a sum of `3,28,959/-, the trial Court at least should have decreed the suit for a sum of `3 lakhs with interest thereupon. However, the trial Court ignoring the recitals and without properly appreciating the evidence led before it, has merely showing unwarranted sympathy towards defendant No.1, has dismissed the suit filed by the plaintiff.
13. As already observed above, the 1st defendant has admitted of she joining the services under the plaintiff-Company as a Junior Executive Trainee under appointment order dated 10.4.2007. She herself has also stated that, joined by defendant No.2, she entered into a tripartite agreement with the plaintiff. Though she has stated that she executed the said agreement on 29.5.2007, when in fact, Ex.P-3 shows it as executed on 31.5.2007, but, she has not disowned Ex.P-3. It is considering these aspects, the trial Court has answered issue Nos.1 and 2 in the affirmative, which the defendants have not challenged by preferring any appeal or cross-objection to this appeal.
14. In the light of the above, the proven fact is that defendant No.1 was serving as a Junior Executive Trainee under the plaintiff commencing from 10.4.2007 and that both the defendants had executed an agreement along with the plaintiff as per Ex.P-3. The main crux of the dispute which remains for adjudication is regarding the entitlement of the plaintiff for the alleged claim made by it in the suit, provided if it proves that there is violation of terms of the Agreement at Ex.P-3 by the defendants.
It is in that connection, the contention of the plaintiff, both in its pleading and evidence, as well the argument of learned counsel for the appellant/plaintiff is that the unauthorised absence of the 1st defendant from 2.7.2008 continuously thereafter is nothing, but, a breach of the Agreement at Ex.P-3 which has entitled the plaintiff in claiming the suit claim. In that regard, the relevant Clause of the said Agreement at Ex.P-3 is required to be looked into. The relevant provisions of the Agreement which are more material for this dispute in this matter is Clause IV (7) and Clause VI (3) (a) and (b) of the tripartite Agreement at Ex.P-3. Those relevant portions are reproduced here below :
“ Clause IV (7) : Upon successful completion of the probationary period including Training, the employee will be confirmed in Grade-II and shall be bound to serve the Company for a minimum period of five years (inclusive of probationary period of 12 Months).
(Explanation: In computing the terms of five years, for which the Employee is liable to serve as aforesaid, the period during which the Employee is on unauthorised absence, authorised leave without pay and study leave shall be excluded).
(a) The decision whether the Employee is suitable for confirmation in Grade-II or not shall vest with the Company.
(b) If she is not found suitable or her performance is not found satisfactory, after confirmation, her services may be terminated by the Company at any time by giving three month’s notice / pay in lieu of notice.
Clause VI : If the employee fails or neglects :
xxxx xxxx xxxx (3) otherwise commits a breach of any of the terms and conditions of the appointment / Agreement, the Company shall be entitled’ (a) to suspend or terminate his / her services as the case may be;
(b) reimbursement from the Employee (including the Surety) of the cost of training, subject to the following limits:
Amount to be recovered i) if he/she leaves The actual training expenses service before the incurred (including the expiry of one full Salary & Allowance paid year, from the during the Probation period) date of initial subject to a maximum of appointment. Rs.3,00,000/-.
AND If he / she leaves service after one year but before completing 5 years then proportionality less by 1/5th of the total training expenses incurred (including Salary and Allowances paid during the probationary period) for every year of service completed, computed in units of months subject to a maximum of Rs.3,00,000/-.
Explanation : Portion of less than a month’s service put in shall be ignored for the purpose.”
A reading of Clause IV (7) in its explanation go to show that in computing the term of five years for which the defendant No.1 herein is liable to serve as per sub-clause (7) of Clause IV of the Agreement, the period during which she was unauthorisedly absent or was on authorised leave without pay and study leave, has to be excluded. Confining to the present case on hand, more emphasis would be given to the words `unauthorised absence’ used in the said explanation. Thus, the said Clause-IV, sub-clause (7) of the Agreement, does not prohibit or bar for an employee remaining unauthorisedly absent from attending to his/her employment. It only says that, in such an event, where an employee goes on unauthorised absence, his/her mandatory service period of five years would be proportionately extended. As such, even though the plaint averment, as well the evidence of PW-1 is to the effect that defendant No.1 had remained unauthorisedly absent from the date 2.7.2008, but, as observed above, explanation to sub-clause (7) of Clause-IV of the Agreement does not debar the defendant No.1 to be unauthorisedly absent. However, the cost should be paid, for which, there would be an extension of the compulsory service period over five years. As such, the first leg of the argument of the learned counsel for the appellant that the defendant No.1 ought not to have remained unauthorisedly absent from attending to her work and that she should have at least made an application in that regard to the plaintiff, is not acceptable.
15. Assuming for a moment that the expectation of the plaintiff is that the employee should have intimated about her leave by filing necessary application, then, the defence of defendant No.1, both in her written statement and her evidence, would go to show that she claims to have submitted several representations in writing to the plaintiff periodically expressing her inability to attend to her duties and praying for leave. Though her said contention has remained and confined to her pleading and evidence, but, she could not able to prove the same. Still, if the expectation of the employer that an application has to be submitted by the employee with regard to going on leave or seeking for permission to remain away from the duty, then, such an act, in my view, cannot be called as unauthorised absence. It is because the absence on the part of the employee without any authority or authorisation would only result into an unauthorised absence, but, not being away from the work duly intimating her employer and obtaining a leave thereof.
16. The entitlement of the plaintiff that the reimbursement is governed by Clause-VI (3)(b) of Ex.P-3, is reproduced here above. A careful reading of the said Clause of the Agreement would go to show that the plaintiff/appellant-Company would be entitled for reimbursement from the employee of the cost of training only in case if an employee leaves service before the expiry of one full year from the date of initial appointment and if the employee leaves service after one year, but, before completing five years, then, on the proportionality, the employer/plaintiff would be entitled for reimbursement of the cost of the training. The more emphasis is required to be given to the above said Clause of Ex.P-3 on the words “if he/she leaves service”. No where in the plaint or in the evidence, the plaintiff has pleaded or proved that the act of defendant No.1 has resulted in she leaving the services of the plaintiff-Company. Their only contention is that she has remained unauthorisedly absent, which has resulted into her termination under the order dated 16.1.2009. The termination is recognised under Clause VI (3)(b) of Ex.P-3. The said Clause though empowers the plaintiff either to suspend or to terminate the services of its employees, but, to be eligible to seek reimbursement of the cost of the training, the employer/plaintiff should show that the employee has left the services before the stipulated or undertaken period of service.
17. In the instant case, though defendant No.1 had remained unauthorisedly absent, but, there are no material to show that she had left the services. On the other hand, it was the plaintiff which had terminated her services. There is all considerable difference between these two terminology of `termination of employee’ and `employee leaving the services’. Here in the instant case, defendant No.1 has not left the services of plaintiff on her own volition, but, her services were terminated by the act of the plaintiff. Merely because she has not challenged the said act of termination effected upon her by the plaintiff, by that itself, it cannot be construed that she falls within Clause-VI (3)(b) of Ex.P-3. This view gains more support even for the reason that the 1st defendant in her evidence has stated that she was desirous of joining the plaintiff- Company back and in that regard, she had made an attempt also. She has produced a reply to the notice and dated 12.5.2009, which is at Ex.P-7 and her letter to the plaintiff dated 23.11.2009, which is at Ex.D-7. In both these documents, the 1st defendant in clear terms has stated that she still continues to be an employee of the plaintiff-Company and that she is ready and desirous to resume to her duties back after the post-marital period. In fact, in Ex.D-7, she has given the date of her expected joining to the plaintiff- Company as the first week of January (2010).
18. Therefore, when the 1st defendant was desirous of joining back to her duties and she has expressed her intention in that regard on more than one occasion, that too, in writing and was communicated the same to the plaintiff, she was made to stay away after certain period by the act of the plaintiff itself, which terminated her services. As such also, the act of the defendant No.1 herself being away for some particular period with an intention to join back to her duties cannot be called as she has left the services of the plaintiff-Company and committed breach of terms of the Agreement at Ex.P-3. Thus, since the plaintiff has failed to establish that there is breach of any of the Clauses or terms of the Agreement at Ex.P-3, it is not entitled for the reimbursement of the cost as claimed by it in its suit.
19. Even though the trial Court has arrived at the same finding, but, by giving a different reason for arriving to such a conclusion, still, the conclusion arrived at the by the trial Court being justifiable irrespective of the reasons given, there is no circumstance warranting any interference in the said judgment and decree passed by the trial Court.
20. Accordingly, I proceed to pass the following order:
ORDER The Appeal is dismissed. The judgment and decree dated 17.12.2011, passed by the learned XVI Addl.City Civil & Sessions Judge, Bengaluru City, (CCH No.12), in O.S.No.4433/2009, is confirmed.
The Registry is directed to transmit a copy of this judgment along with lower Court records to the lower Court without delay.
Sd/- JUDGE bk/