Bombay High Court
John Cockerill India Limited vs Sanjay Kamalakar Navare on 28 November, 2022
Author: Bharati Dangre
Bench: Bharati Dangre
Digitally signed by SMITA
SMITA JOHNSON JOHNSON GONSALVES
GONSALVES Date: 2022.12.03 15:12:20
+0530
sg 21.carbpl24703-22.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
IN
COMMERCIAL ARBITRATION PETITION (L) NO.24703 OF 2022
John Cockerill India Ltd. ....Petitioner
vs.
Sanjay Kamalakar Navare ...Respondent
....
Mr. Venkatesh Dhond, Senior Counsel, a/w. Mr. Rohan Kelkar,
Counsel, Mr. Ankoosh Mehta, Ms. Sarah Navodia and Ms. Pragya
Chandak, i/b. Cyril Amarchand Mangaldas, for the Petitioner.
....
CORAM : BHARATI DANGRE, J.
DATE : 28 NOVEMBER 2022 P.C. :
The Petitioner is a company incorporated and registered under the Companies Act and claims to be a globally renowned technology solutions provider, operating through a group, which is an engineering conglomerate catering to technological solutions in five outstanding sectors, including Energy, Defense, Industry, Environment and Services. The Petitioner claims that it has acquired dominant position in design, manufacture, erection and commissioning of Cold Rolling Mill Complexes, Processing Lines, Chemical Equipment, Industrial Furnaces and Auxiliary Equipment for the steel industry and, for this purpose, it has developed a comprehensive design and engineering solutions by making use of the software developed in close associations with its engineers and customers thereby producing, at times customized equipments.1 / 10
sg 21.carbpl24703-22.doc The Petitioner has approached this Court by filing a petition under Section 9 seeking certain ex-parte reliefs in view of the peculiarity of the nature of transaction, which they share with the Respondent, one of their employee, and apprehending that in case his appearance is secured through a notice, the data, which is alleged to have been transferred, the manner and the details of which are specified in the petition, would either be erased or further transferred to other device with an object of employing the same in breach of the confidentiality agreement entered with him.
The learned Senior Counsel, Mr. Dhond, therefore, prays for grant of prayer clauses (v) and (vi) for the time being before the Respondent is given an opportunity to respond, to the other reliefs sought in the petition.
2. The Respondent is an ex-employee of the Petitioner and the sequence of events would reveal that he joined the Flat Products Equipments (I) Ltd. as Executive-Design with the Petitioner as early as on 3 May 1993. Thereafter, he was transferred in Metwork Consultants Pvt. Ltd. and was posted in various departments, including the Erection and Commissioning Department as well as the Sales Department. He was also designated to the post of Vice-President-Engineering, in charge of its Design Department. Throughout his service tenure, he had participated in the different programmes in design infrastructure and manufacturing facilities and thus earned the capability to provide end to end solutions to the customers, including engineering design, 2 / 10 sg 21.carbpl24703-22.doc manufacturing and project management, reaching upto the stage of erection and commissioning.
In the wake of the peculiarity of the task, which was assigned to him, a Security Policy was brought into force, which was subsequently merged into comprehensive 'Information Technology and Information Security Manual' published on the Petitioner's internet portal and accessible to all its employees and the Petitioner expected all its employees to scrupulously adhere to the same. The Security Manual specifically contemplated the access control policy and necessarily the Respondent, as an employee, was also expected to follow the same, apart from the Code of Conduct, which was also mandated to be adhered by the employees and specifically a person like the Respondent, who was involved in offering customized technological solutions, which were built over time with expertise in the field.
A specific statement is made in the petition that the Respondent was entrusted with much confidential and sensitive information and data of the Petitioner, as well as that of JCSA and UVK GmbH, including proprietary designs/drawings specifically prepared per customer requirements, and had access to various other techniques/strategies used by the Petitioner to improve its work processes and to innovate better machinery for its clients. Also, he had access to the Petitioner's customer database and was privy to the technical know-how the Petitioner had developed and used or adopted to meet specific client requirements, and to deliver state-of-the-art, customized technology. Access to information was given to the 3 / 10 sg 21.carbpl24703-22.doc Respondent and received by the Respondent under conditions of strict confidence. Thus, it is contended that he was also deeply involved in preparing the technological proposals for prospective customers, authorizing new equipment components, etc. In short, the contention advanced on behalf of the Petitioner, is the Respondent was entrusted with confidential information and data, including proprietary designs/drawings specifically prepared as per the requirement of the customers.
3. In this whole background, on 8 September 2021, the Respondent sought to be relieved from the job, citing personal reasons and offered to tender his resignation and requested that he should he relieved, by 30 November 2021. Upon such letter being issued, the Petitioner was informed that in terms of Service Rules, he shall enter into Employee Non-Disclosure and Non-Solicitation Agreement prior to he being relieved. On 6 December 2021, i.e. on the date of exiting, the Petitioner's, he signed Final Clearance Form agreeing and acknowledging that all the Intellectual Property, including but not limited to copyrights, designs, whatsoever in his possession or created by him during the course of his employment are the exclusive property of the Petitioner and, therefore, he shall not, at any time, assert or claim any right or interest thereof. He was be relieved from his job profile on 6th December 2021, and ceased to be in the Petitioner's employment.
4. On being relieved, the Respondent had surrendered his 4 / 10 sg 21.carbpl24703-22.doc company laptop, which was allotted to him, which was subjected to an analysis and its report was forwarded to the Petitioner on 19 June 2021.
The detail report, known as CFA Report, has revealed certain information and this forms the basis for the apprehension expressed by the Petitioner.
The report clearly reveal that certain data in relation to 27 unique USB(Universal Serial Bus)/external devices were connected to the laptop and from this it can be inferred that the data in the laptop was transferred in external storage and the technical analysis revealed that the laptop had in it multiple folders containing customer visit reports for various projects drawings, the layout as well as the customer specifications, key components/designs, including the customers degreasing section, customized furnace design, zinc pot section, etc. An entire folder containing data associated with the "Side trimmers" used for a specific purpose was also found to have been copied out. The Petitioner, therefore, believe that through 27 devices approximately 50.5MB data has been retrieved and transferred to multiple devices. The report in great detail has enumerated confidential information and sensitive data, which is noticed to have been transferred from the external device through the link files. The report also make a reference to the files relating to the drawings indistinct folders, which were lastly accessed on 5 December 2021, i.e. day before, when the Respondent is relieved. By transferring it into a removable drive, it is the submission, advanced on behalf of the Petitioner that these are the documents, which are created for the company/the Petitioner in order to cater to 5 / 10 sg 21.carbpl24703-22.doc their customers and are definitely covered by the Clearance Form agreeing that whatever designs, copyrights, etc. were created during the course of his employment, being the exclusive property belonging to the Petitioner, he shall not stake any claim upon the same.
The observations in the report, which refer to the files which have been accessed through the laptop in various forms in format PDF, Excel, CSV documents as well as the Writer documents, were opened and accessed through removable drive. The report categorically make reference to the transmission of original exhibit in another hard disc.
5. It is in this background and particularly the report being submitted on analysis of the data found in the laptop, which was surrendered from the Respondent when he was relieved from the job which is matter of concern for the Petitioner in the petition and forms the basis for the relief sought vide prayer clause (v) and (vi) of the petition.
6. The apprehension expressed by the Petitioner cannot be said to be unfounded, as the final clearance form signed by the Respondent on 2 December 2021 contains following statement:-
"I hereby agree and acknowledge that all the intellectual Property (including but not limited to copyrights, designs, trademarks, patents, logos) whatsoever in my possession or created by me during the course of my employment with John Cockerill India Limited are the exclusive property of John Cockerill India Limited and I shall not, at any time, assert or claim any right or interest thereto."6 / 10
sg 21.carbpl24703-22.doc
7. The report indicates that several documents, which are alleged to be the designs/the link files are accessed a date before, i.e. 5 December 2021, and this include some 38 files of Design and, as per the report, which have traces of connected link found in the laptop, hard disc transferred into drive-removable device. It is on the basis of this, the Petitioner apprehend that the Respondent has taken the data with him by exporting it into certain devices and with a specific averment made in the petition in para 30 that the Petitioner has now realized that the Respondent has joined the services of their business competitor, and apprehend, of this specific designs being put to use for their benefit cannot be overruled. Though the Petitioner has only explained this apprehension, being unsupported by any concrete proof to that effect, in the wake of the clause contained in the final clearance form, it is imperative on his part not to put this data for use for any purpose.
8. As far as the other reliefs claimed in the petition that he shall not put to use the data shall be considered, at point of time when it is revealed that the alleged relevant information with the specifications/customization being done by the Petitioner at the request of the customers, has been transferred and is being put to the use by the Respondent. The apprehension that if the notice is issued, this data will either be further transferred or destroyed, find a way in the report, of analysis and it is only on ascertaining what are the files which have been transferred actually, the other reliefs can be considered.7 / 10
sg 21.carbpl24703-22.doc
9. In the wake of the above peculiar circumstances, when prima facie, case is made out for grant of ex-parte relief, the balance of convenience being weighing in favour of the Petitioner and since irreparable loss would be caused, if the relief is not granted, at this stage and in this manner, I am inclined to grant the relief in prayer clause (v) of the petition by appointing the Court Receiver, High Court, Bombay, who shall upon visiting the residential premises of the Respondent on the address indicated in the title clause, being accompanied by a techno savvy expert, shall make an inventory of the data that is retrieved from the distinct device in possession of the Respondent, which may be in form of any hard disc, pen drive, computer system, tablet, memory card, etc. This will warrant co-operation on part of the Respondent and the data would be accessed from the device in possession of the Respondent and shall be enlisted by preparing a report, which shall contain its details and the report shall be placed before this Court before, further directions are issued. Hence, I deem it appropriate to pass the following order to prevent the Respondent from destroying the material, before issuance of notice for securing his appearance, for responding to the petition filed by the Petitioner.
10. Hence, I deem it appropriate to grant the relief, as claimed in prayer clauses (v) and (vi) of the petition, which read as under:-
(v) Appoint the Court Receiver, High Court, Bombay, or such other fit and proper person as this Hon'ble Court may deem fit and proper, as Receiver to take all steps necessary and appropriate, with all powers 8 / 10 sg 21.carbpl24703-22.doc under Order XL Rule 1 of the Code of Civil Procedure, 1908, including to attend at and/or enter either by force or by breaking open the lock or obstruction or barrier or otherwise, the Respondent's residence, office or other premises of the Respondent at any time, day or night, and/or on any day without notice to the Respondent and with the help of the police and forensic experts, to make an inventory and take a mirror copy of the entire electronic data of the Respondent stored on his data storage devices, hard disks, pen drives, computer systems, tablets, memory cards, e-mail repositories including any cloud based servers, and to make a report of the same and submit it to this Hon'ble Court in a sealed envelope;
(vi) Direct the Respondent to cooperate and provide full assistance to the Receiver and forensic expert(s) so appointed/engaged, including providing to them all the login ids and passwords to access such devices and/or information."
11. The above relief sought is granted with a modification that the Court Receiver shall seek assistance of Mr. Mukesh Vilasrao Bhandarge, Technical Expert, Excellent Cyber Forensics and Web Securities LLP. He shall offer him assistance in retrieving the data in possession of the Respondent through various devices. Upon the data being retrieved, the device from which the same is retrieved, may be a laptop, sever, computer, USB, hard disc and other physical storage services and/or mediums, shall be sealed and the list of such devices shall be compiled with the report to be produced before this Court. Receiver, with the help of the technical assistance, shall also make an attempt to retrieve data from the cloud servers and mention the same in his report.
9 / 10sg 21.carbpl24703-22.doc The Receiver shall carry out the aforesaid exercise by visiting the residence of the Respondent on the address given below within period of four days of passing the order at the time and date, which he deems fit, without any intimation being given to the Respondent. Pursuant to the exercise carried out, he shall submit his report within period of a week thereafter.
12. The Respondent is directed to provide and co-operate with the Receiver and the Expert by providing the login id and password so that data can be accessed from the device, which is found to be available, either at the residential premises of the Respondent, or at his work place, which shall be furnished by him.
It is directed that the order shall not be uploaded on the website of this Court until it is executed.
The Court Associate shall inform of the passing of the order to the Court Receiver and also make an authenticated copy available to him.
List the petition for hearing on 14 December 2022. Parties to act on an authenticated copy of the order.
(SMT. BHARATI DANGRE, J.) 10 / 10