Delhi District Court
Bharat Bhushan Harmilapi vs M/S Alchemist Airways Pvt. Ltd on 31 July, 2017
IN THE COURT OF MS. REKHA: ADDITIONAL DISTRICT JUDGE
:NEW DELHI DISTRICT, PHC, NEW DELHI
Civil Suit No.57903/16
Bharat Bhushan Harmilapi
R/o House No. 128, Sharvan Nath Nagar,
Haridwar, Uttarakhand ...................................................Plaintiff
Versus
1.M/s Alchemist Airways Pvt. Ltd.
Through its Managing Director/Chairman , 314, G+5 Building, Opp. Terminal 1B, IGI Airport, New Delhi110010.
2. Mr. P.K. Verma DirectorHR & Management Services 314, G+5 Building, Opp. Terminal 1B, IGI Airport, New Delhi110010 ................Defendants DATE OF INSTITUTION: 05.04.2016 DATE OF DECISION: 31.07.2017 JUDGEMENT :
1. Vide this judgment I proceed to dispose of the suit for recovery for a sum of Rs.11,91,137/(Rupees Eleven Lakh Ninety One Thousand One Hundred Thirty Seven Only). Through this suit it has been prayed that a decree for a sum of Rs.11,91,137/(Rupees Eleven Lakh Ninety One Thousand One Hundred Thirty Seven Only) alongwith pendentelite and future interest 24% per annum till BHARAT BHUSHAN HARMILAPI VS. ALCHEMIST AIRWAYS PVT. LTD. 1 the date of realization and cost of the suit and any other relief which this court deem fit and proper in the facts and circumstances of the case may also be passed in favour of the plaintiff and against the defendant.
2. The brief facts in narrow compass, relevant and necessary for the disposal of the present suit are that the plaintiff is an exemployee of the defendant company. It is the case of the plaintiff that the defendant company is a licensed nonscheduled operator offering air charter services within India and abroad having its office, amongst others, at 314, G+5 Building, Opposite Terminal 1B, I.G.I. Airport, New Delhi110010 (hereinafter referred as defendant company). It is also stated that the plaintiff was appointed at the position of "CoPilot" in the defendant company vide appointment letter dated 13.03.2008, Ref. No.HR/March13/APP/2KB. It is also stated that after considering the performance of the plaintiff, he was later on promoted to the position of SeniorCoPilot on 28.06.2011 vide letter Ref.
No.HR/SIL/201011/00894. It is stated that on 15.05.2013, the plaintiff was issued an increment letter vide Ref. No.HR/SIL/201213/00894. It is also stated that on 23.05.2014, he was issued his most recent increment letter vide Ref. No.HR/SIL/201314/00894 vide which his annual salary was increased and revised to Rs. 30,36,000/ w.e.f. 01.04.2014. It is also stated that after a mutually beneficial BHARAT BHUSHAN HARMILAPI VS. ALCHEMIST AIRWAYS PVT. LTD. 2 employment of about 7 years, he resigned from the employment of the defendant company on 18.05.2015 due to nonpayment salaries for a period of three months preceding the said resignation. It is also stated that the plaintiff willingly and without causing disruption to the services accorded by the company, served his notice period of one month. It is also stated that that upon completing the said notice period on 17.06.2015, he returned all company assets to the concerned departments, as per the company's guidelines and rules, and was given clearance from the respective departments and was told that the relevant department of the company would finalize the full and final settlement of his account and would disburse the said amount that had accrued. It is also the case of the plaintiff that plaintiff kept communicating and reminding the concerned officials of the defendant company for the status of the said full and final settlement of accounts but the said reminders fell on deaf ears. However, after a period of 55 days since his resignation, he was informed, on 14.08.2015, by one Mr. Rajesh Kaul, Executive Director/Accountable Manager of the defendant company, that his full and final settlement of accounts was finalized by Corp. HR and the said amount was Rs.11,91,137/ (Rupees Eleven Lakh Ninety One Thousand One Hundred Thirty Seven Only) and that the date of disbursement would be informed to him. It is also BHARAT BHUSHAN HARMILAPI VS. ALCHEMIST AIRWAYS PVT. LTD. 3 stated that pursuant to the said communication, he has been constantly reminding and writing the defendant company to provide him with a breakup of the said final amount and to disburse the funds at the earliest, but the same has not been heeded to. It is also stated that plaintiff has sent several formal reminders to the defendant company since the above said communication of Mr. Rajesh Kaul, till date. It is also stated that full & final settlement amount has been arrived at by the following calculations:
AMOUNT PAYABLE (NOTICE PERIOD) in Rs.
Salary Account Rs. 2,71,227 Reimbursement Account Rs. 2,55,583/ Leave Encashment Rs. 3,24,683/ Gratuity Rs. 3,57,606/ Total Rs. 12,09,099/ AMOUNT DEDUCTIBLE /RECOVERABLE in Rs. Notice Pay Recovery Rs. 2,856/ T.D.S. Rs. 1,286/ Other Deductions Rs. 13,820/ Total Rs. 17,962/ TOTAL NET PAYABLE Rs. 11,91,137/
Hence, plaintiff was constrained to send legal notice dated 22.01.2016 to the defendant company for claiming the said amount along with interest and cost, BHARAT BHUSHAN HARMILAPI VS. ALCHEMIST AIRWAYS PVT. LTD. 4 however even upon receiving the said notice, no replies have been made by the defendant with a malafide intentions to cause great hardships to the plaintiff. Hence, this present suit is under disposal.
3. It is to note here that earlier the suit was filed u/o XXXVII CPC, 1908 but vide order dated 14.05.2016 suit of the plaintiff was treated as ordinary suit.
4. It is also to note here that despite opportunity given to the defendant for filing the Written Statement, no Written Statement filed. Hence, the defence of the defendant was struck off vide order dated 07.12.2016.
5. The Plaintiff in order to prove it's case got himself examined as PW1 and tender is evidence by way of affidavit in which he reiterated the contents of his plaint and got exhibited following documents :
Sl. No. of Exhibits Details of Documents
No.
1 Ex.PW1/A Appointment letter dated 13.03.2008, Ref.
No.HR/March13/APP/2KB
2 Ex.PW1/B Promotion letter dated 28.06.2011 vide letter Ref.
No.HR/SIL/2010/11/00894
3 Ex.PW1/C Letter dated 15.05.2013
4 Ex.PW1/D Iincrement letter dated 23.05.2014
5 Ex.PW1/E (Colly) Printout of email dated 18.05.2015 along with certificate
u/s 65B of the Indian Evidence Act
BHARAT BHUSHAN HARMILAPI VS. ALCHEMIST AIRWAYS PVT. LTD. 5
6 Ex.PW1/F (Colly) Printout of emails along with certificate u/s 65B of the
Indian Evidence Act
7 Ex.PW1/G Photocopy of legal notice dated 22.01.2010
6. During the course of arguments, it was argued by ld. counsel for defendant that the certificate U/s 65B of the Indian Evidence Act relied upon by the plaintiff is not as per U/s 65B of the Indian Evidence Act, hence, the plaintiff is not entitled for the amount claimed through this present suit and the suit of the plaintiff is liable to be dismissed.
On the other hand, ld. counsel for plaintiff argued that the plaintiff is entitled for the amount of Rs. 11,91,137/ from the defendant company and there is no infirmity in the certificate U/s 65B of the India Evidence. Hence, suit of the plaintiff may kindly be decreed.
7. I have heard the arguments and perused the material available on record. The present suit is for recovery of Rs. 11,91,137/ alongwith interest filed by the plaintiff.
As per the case and testimony of plaintiff, the plaintiff was employee of the defendant company and worked as "CoPilot" in the defendant company and later on he was promoted to the position of SeniorCoPilot on 28.06.2011 and his salary BHARAT BHUSHAN HARMILAPI VS. ALCHEMIST AIRWAYS PVT. LTD. 6 was also increased and revised to Rs. 30,36,000/ w.e.f. 01.04.2014 in view of increment letter as stated before.
8. It is also the case of the plaintiff that due to nonpayment of the salaries for a period of three months, the plaintiff had resigned from the employment of the defendant company on 18.05.2015 and also served one month notice period to the defendant company and as per information dated 14.08.2015 from Mr. Rajesh Kaul, Executive Director/Accountable Manager of the defendant company, an amount Rs.11,91,137/ (Rupees Eleven Lacs Nine One thousand One Hundred and Thirty Seven Only) is due in his favour and against the defendant company and he also relied upon Ex. PW1/A to Ex. PW1/G. In light of abovesaid, it is said that factum of working of the plaintiff with the defendant company, his resignation from the defendant company and leaving of the job of the defendant company are admitted.
Now, the fact which require consideration here is that whether the plaintiff is entitled for the amount claimed through the present suit or not.
It is to note here that the plaintiff relied upon Ex. PW1/E and Ex. PW1/f and perusal of the Ex. PW1/E, it is found that it is printout of the email dated 18.05.2015 at 8.00 P.M. allegedly sent by Bharat Harmilapi to Rajesh Kaul BHARAT BHUSHAN HARMILAPI VS. ALCHEMIST AIRWAYS PVT. LTD. 7 informing him that he was resigning from his position as Senior CoPilot with Alchemist Airways Pvt. Ltd. due to nonpayment of last 3 months salary and there is no response from the management by when the issues will be resolved.
Furthermore, PW1 also relied upon Certificate U/s 65B of the Indian Evidence Act dated 30.03.2016 in support of email dated 18.05.2015 at 8.00 P.M. and perusal of the same it is found that this certificate issued by Sh. Piyush Sachdev.
It is further to note here that the plaintiff also relied upon Ex. PW1/F perusal of same it is found that it is printout of various emails including email letter dated 14.08.2015 at 1.39 PM allegedly written by Rajesh Kaul to Bharatinforming him that his full and final as finalized by Corp HR amounts INR 11,91,137 and the final payout is subject to release/availability of funds about which he shall be informed accordingly.
Furthermore, PW1 also relied upon Certificate U/s 65B of the Indian Evidence Act dated 30.03.2016 in support of email dated 14.08.2015 at 1.39 PM and perusal of the same it is found that this certificate issued by Sh. Piyush Sachdev.
In the case of Anvar P.V vs P.K Basheer & Ors. (2014) 10 SCC 473, BHARAT BHUSHAN HARMILAPI VS. ALCHEMIST AIRWAYS PVT. LTD. 8 Civil Appeal No. 4226/2012, decided by Supreme Court on 18/09/2014, it was held by three Judges Bench of Supreme Court that any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A of said Act, can be proved only in accordance with the procedure prescribed under Section 65B of said Act; Section 65 B deals with the admissibility of the electronic record and the purpose of these provisions is to sanctify a secondary evidence in electronic form, generated by a computer. It was also held that electronic records are more susceptible to tampering, alteration, transposition, excision, etc., so without safeguards taken to ensure the source and authenticity, the whole trial based on proof of electronic records can lead to travesty of justice. Also was held that the Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of The Evidence Act are not complied with. Following are the four specified conditions under Section 65B (2) of the Evidence Act: (i) the electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer; (ii) the information of the kind contained in electronic record BHARAT BHUSHAN HARMILAPI VS. ALCHEMIST AIRWAYS PVT. LTD. 9 or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity; (iii) during the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and (iv) the information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity. It was also held in aforesaid precedent that under Section 65B (4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied: (a) there must be a certificate which identifies the electronic record containing the statement; (b) the certificate must describe the manner in which the electronic record was produced; (c) the certificate must furnish the particulars of the device involved in the production of that record;
(d) the certificate must deal with the applicable conditions mentioned under Section 65B (2) of the Evidence Act; and (e) the certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device. It was also held in aforesaid precedent that the evidence relating to electronic record, being a special provision, the general law on secondary evidence BHARAT BHUSHAN HARMILAPI VS. ALCHEMIST AIRWAYS PVT. LTD. 10 under Section 63 read with Section 65 of The Indian Evidence Act shall yield to be same; Generalia specialibus non derogant, special law will always prevail over the general law. It was also held that Section 63 and 65 of The Indian Evidence Act have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B of The Indian Evidence Act, so to that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by the Supreme Court in case of State (NCT of Delhi) vs. Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600 does not lay down the correct legal position, which requires to be overruled and was accordingly overruled. It was also held that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B of The Indian Evidence Act are satisfied. It was also held that in the case of CD, VCD, chip, etc., the same shall be accompanied with the certificate in terms of Section 65B of The Indian Evidence Act obtained at the time of taking of document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.
Now coming to the fact and circumstances of the case. Perusal of certificate U/s 65B of the Indian Evidence Act, 1972 in support of email dated BHARAT BHUSHAN HARMILAPI VS. ALCHEMIST AIRWAYS PVT. LTD. 11 14.08.2015 at 1.30 PM shows that it has been issued by Sh. Piyush Sachdev and contents of the same are reproduced herein:
Certified that the printout of communication of the plaintiff with the defendant company in email form, is taken out from my E-mail address being E-mail id [email protected] from my computer.
It is further certified that the prinout of the said letter is the true copy of the actual email sent. The same has been received from the plaintiff me. The said e-mail ID is and was then operated/used only by me. The access of said E-mail ID is through a unique user-id and associated password. Only he know the password and the use of ID with that password. There are proper safeguards adopted in the system/computer to ensure that the data/information is entered or any other operation is performed by me. There are proper safeguards available to retrive data that is lost due to system failure or any other reason and there are proper safeguards to prevent and detect any tampering with the system.
It is further certified that the best knowledge & belief, computer system was properly operated at the material time and all relevant data was provided and printout in question represents correctly and is appropriately and devoid for irrelevant data.
In view of above, view of the Court is that it is said that Certificate given Ex. PW1/F does not fulfill the prerequisites condition as observed in case BHARAT BHUSHAN HARMILAPI VS. ALCHEMIST AIRWAYS PVT. LTD. 12 titled as Anvar P.V vs P.K Basheer & Ors. (2014) 10 SCC 473, Civil Appeal No. 4226/2012.
More so, it is further view of the Court is that the plaintiff failed to prove email dated 14.08.2015 at 1.39 PM.
More so, it is also to note here that nothing came out on record to shows that what prevented the plaintiff to give his own Certificate U/s 65B of the Indian Evidence Act.
It is very necessary to pen down here that during crossexamination, PW1 stated that whenever an official email was sent by him or addressed to him, Mr. Rajesh Kaul, Ms. Sonia Sood and Mr. Anil Oberoi always marked carbon copy in the emails and he also admitted the fact that the company had opened a salary account for him and the same was opened around 15th March, 2008. He also admitted the fact that his salary always credited to his salary account opened by the defendant company and he had not filed any of his bank statement of his aforesaid salary account. He also stated that three months prior to his resignation, approx. 20 days each month, he used to attend the office and when he was not flying, he used to prepare documents regarding flying as per the DGCA requirements. He denied BHARAT BHUSHAN HARMILAPI VS. ALCHEMIST AIRWAYS PVT. LTD. 13 the suggestion that he did not undertake any work in the month of January, February and March 2015. He stated that he could produce the records of his flying for the month of January, February and March, 2015. He also stated that as he was not paid his salaries, he decided to resign from the defendant company. He also stated that he had never written any email or letter intimating any of his seniors regarding nonpayment of his salary. He voluntarily said that he had made personal verbal communication of the same to Mr. Rajesh Kaul. He also stated that Human Resource is concerned department who managed disbursement of the salaries of the defendant company and Mr. Rajesh Kaul was not in the Human Resource Department. He voluntarily said that Human Resource department is comes under Mr. Rajesh Kaul. He also stated that he had stated in his resignation that he had not paid salary for the three months .He also stated that he had not brought his Flying records for the month of January, February and March 2015. He voluntarily said that however, the said records are with him and he can produce the same as and when necessary. He denied the suggestion that the records did not exist and he had deliberately not filed the same on the record. He also denied the suggestion that email dated 18.05.2015 is a forged and fabricated email and EX. PW1/F is a forged and fabricated email. He also stated that he had not filed his certificate BHARAT BHUSHAN HARMILAPI VS. ALCHEMIST AIRWAYS PVT. LTD. 14 U/s 65B of the Indian Evidence Act in support of the emails annexed with his affidavit in evidence,however his lawyer has filed Certificate U/s 65B of the Indian Evidence Act.
It is to note here that during crossexamination, PW01 admitted that his salary was always credited to his salary account but he did not filed his bank statement of aforesaid salary account. Here view of court is that plaintiff did not prove on record any statement of account which shows that plaintiff is entitled for the amount which claimed through the present suit.
Here, it is said that admittedly, besides email dated 14.08.2015, the plaintiff has allegedly other material also to prove his case but he has neither placed and proved the same on record and nothing came out on record that what prevented the plaintiff to produce and prove alleged material to prove its case. Even Rajesh Kaul who allegedly sent the email Ex. PW1/G to him has not been examined by the plaintiff. Had he examined, definitely the defendant would have got an opportunity to crossexamine him.
More so, nothing came out on record to show that what prevented the plaintiff to produce his own Certificate U/s 65B of Indian Evidence Act. BHARAT BHUSHAN HARMILAPI VS. ALCHEMIST AIRWAYS PVT. LTD. 15 In light of abovediscussion, view of Court is that the plaintiff failed to prove that he is entitled for the amount claimed through the present suit. Hence, the suit of the plaintiff is dismissed. Let, decree sheet be drawn accordingly and file be consigned to record after due compliance.
PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 31ST DAY OF JULY, 2017.
(REKHA) ADDITIONAL DISTRICT JUDGE05 PATIALA HOUSE COURTS, NEW DELHI DISTRICT, NEW DELHI JUDGE CODE:DL0055 BHARAT BHUSHAN HARMILAPI VS. ALCHEMIST AIRWAYS PVT. LTD. 16