Bangalore District Court
Sri. C.S. Nagaraja vs Flamingo Pharmaceuticals Ltd on 11 February, 2015
IN THE COURT OF THE VIII ADDITIONAL CITY CIVIL &
SESSIONS JUDGE (CCH :15) AT BENGALURU CITY.
DATED THIS THE 5TH DAY OF JULY, 2014
PRESENT:
SHRI.MASTER R.K.G.M.M. MAHASWAMIJI,
M.A., LL.B.,
VIII Additional City Civil & Sessions Judge,
Bengaluru.
ORIGINAL SUIT No.6677/2009
BETWEEN:
PLAINTIFF: SRI. C.S. NAGARAJA
S/o Sri. Shanthaveerappa,
Aged about 39 years,
R/at No.304,
"Sri Lakshmi Residency"
Katriguppe Main Road,
B.S.K. III Stage,
Bangalore-560085.
(By Sri. S. Nagaraja, Advocate)
AND:
DEFENDANT: FLAMINGO PHARMACEUTICALS LTD.,
Domestic Division,
No.7/1,Corporate Park,
Sion-Trombay Road,
Post Box No.27257, Chamber,
Mumbai-400071.
Represented by its Senior Manager-HR
(By Sri. B.C. Prabhakar, Advocate)
2
O.S.6677/2009
Date of institution of the 20.10.2009
suit:
Nature of suit: Damages
Date of commencement of 15.04.2011
Recording the evidence:
Date on which the judgment 05.07.2014
Was pronounced:
Total Duration : 4-Years, 8-Months & 15-Days.
***
JUDGMENT
The plaintiff has filed this suit against the defendant praying to direct the defendant to pay damages/ compensation of Rs. 4,75,367/- to the plaintiff along with future interest @ 18% per annum with costs.
2. The case of the plaintiff in brief is as under:
It is stated that the plaintiff was appointed as Regional Sales Manager in the defendant-company on 01.01.2007. He has been completed probationary period of six months and his salary was revised from time to time.
The defendant company has appreciated the work of the plaintiff and given incentives and also increments to the 3 O.S.6677/2009 plaintiff and honoured by presenting trophies for the plaintiff's achievement.
It is further stated that plaintiff has sent a resignation letter dtd. 07.08.2009 to the defendant company through Mrs. Vaishali Vaidya, the Senior Manager, H.R. through e-mail as per company norms with one month clear notice and it was received by the defendant.
It is averred that the defendant company has sent a termination letter dtd. 10.08.2009 with immediate effect through e-mail, speed post, courier and also RPAD and therein the defendant has made false allegations against the plaintiff that he has instigated Karnataka teammates to resign forcibly and misused his position and shown total indiscipline and indulged in insubordination and grossly violated company's Rules and Regulations, although the plaintiff has rendered blemishless service.
It is further averred that the defendant company has also sent letters to Karnataka Area Sales Managers' and Area Sales Officers' by making false allegations against 4 O.S.6677/2009 the plaintiff through Mr. William wood, DGM(South Sales) and circulated the information through e-mails.
It is pleaded that after receiving the termination letter from the defendant company, plaintiff has applied for job in a Pharmaceutical company, but he has got reply that plaintiff's candidature has been rejected; because he has been terminated from the defendant company; because of defamatory statements of defendant, plaintiff has lost his reputation and others are undermining him, it is not possible to plaintiff to get job.
Thereafter, the plaintiff has issued a legal notice dtd. 27.08.2009 to defendant calling upon to withdraw all the false allegations made; the defendant has sent a reply notice on 14.09.2009 stating that the plaintiff has been dismissed for gross misconduct acting against interest of company and for coercing employees working under him to join the company where he has joined.
The defendant company has taken it as a vengeance and trying to spoil the career affecting the future life of plaintiff. The defamatory statement and acts of defendant company caused mental agony and it is quantified at 5 O.S.6677/2009 Rs.4,00,000/- and dues to be settled by the defendant is Rs.75,367/- + leave encashment.
Therefore, the plaintiff is constrained to file this suit against the defendant company praying above reliefs.
3. On receipt of suit summons, the defendant-company entered appearance through the counsel and filed written statement contending inter alia as below:
The defendant denied all the averments made in the plaint, as baseless and false except specifically admitted.
It is contended that suit is not maintainable. The termination of the service of plaintiff for indulging in acts highly prejudicial to the interest of the company cannot be construed as defamation. Plaint does not disclose cause of action.
It is stated that it is came to know to the defendant company that plaintiff had held a meeting of teammates including area sales managers on 04.08.2009 at Bangalore and forced teammates to resign from services of the defendant company and join at Aton Biotec Company to which the plaintiff was joining and therefore, the 6 O.S.6677/2009 plaintiff was planning to resign. The plaintiff has submitted his resignation through e-mail dtd. 07.08.2009, obviously to pre-empt any action which may have been taken against the plaintiff for indulging in anti-company activities. In the meantime, the defendant company received confirmation from some of the participants of the meeting who had submitted their resignations on the basis of force exerted by the plaintiff in the meeting. This was very serious development which had direct bearing on the operations of the company in southern zone; therefore, the company has decided to terminate the services of the plaintiff to protect the interest of the company and to ensure no further damage to be done by the plaintiff. The defendant company has clearly communicated the reasons for terminating the services of the plaintiff. It is admitted position that plaintiff had held a meeting of his teammates in the guise of holding a review meeting. Mr. Mallikarjun, Area Sales Manager, Hubli has submitted his resignation after the plaintiff forced to do so in the meeting and the same was informed by him over phone to Mr. Rajesh Jain, Senior Manager, Business Development at Mumbai and subsequently, confirmed by an e-mail. Similarly, Mr. Manmatha Marathe initially informed to Mr. Rajesh Jain over phone 7 O.S.6677/2009 about the pressure exerted by the plaintiff to submit resignations and subsequently confirmed by on e-mail sent to the Mumbai office and to take up employment in the company in which plaintiff himself was taking up employment.
It is further stated that the plaintiff was directed to handover the property and etc. of the company and sent e-mail to the concerned advising to stop sending reports and communication to the plaintiff and this communication is purely internal and administrative one addressed to company's employees. And it was neither addressed to anybody outside the company nor it is meant for use of any one who is not employee of the company. The communication was to educate the employee about the consequences if they indulge in anti-companies activities.
It is further stated that the defendant company in its reply notice stated as under :
"Nevertheless, without prejudice to our rights and contentions hereinforce, we are prepared to permit your client to resign from the services stating 10th August, 2009 as last date and 8 O.S.6677/2009 also give a letter to the effect provided he tenders an unconditional apology for his behaviour and conduct and completes all formalities for full and final settlement of dues. We are also not averse to considering payment of notice pay in lieu of balance notice period and are prepared to forgive him and forget the matter and close this case."
Therefore, it is prayed to dismiss the suit against the defendant with exemplary cost.
4. On the basis of the pleadings of the parties, the following issues have been framed for consideration and decision:
ISSUES
1. Does the plaintiff prove that the defendant defamed him intentionally by making false allegations as alleged?
2. Whether the plaintiff is entitled for damages as prayed?
3. What Order or Decree?
5. The plaintiff in order to prove his case, examined himself as P.W.1 and produced the documents 9 O.S.6677/2009 and got marked them as Ex.P.1 to Ex.P.14 and closed his side.
6. On the other hand, the defendant company is examined its Asst. Manager H.R., by name Sunil A. Mane as D.W.1 and produced documents and got marked them as Ex.D.1 to D.12 on its behalf.
7. I heard the arguments and perused oral and documentary evidence on record.
8. My findings on the aforesaid Issues are as under:
Issue No.1 - Negative.
Issue No.2 - Negative.
Issue No.3 - As per final order for the following:
REASONS
9. ISSUE No.1 and 2: Since these issues are inter-linked, they are taken up together for joint consideration.
10O.S.6677/2009 It is a case of plaintiff that the defendant company false allegations against him intentionally and caused damages; therefore, he is entitled for compensation.
10. The defendant-company in its written statement denied the above averments/allegations.
Therefore, the burden of proof to prove these issues are casted on the plaintiff' as per Sec. 101 and 102 of Indian Evidence Act, 1872.
11. In this regard, the plaintiff, in order to establish his case, got examined himself as P.W.1 and got marked 14 documents.
P.W.1 - C.S. Nagaraju, the plaintiff, he has stated on his affidavit evidence, by reiterating the plaint averments.
On perusal of cross-examination of P.W.1 made by defendant counsel, it is noticed that plaintiff has called team-mates meeting as per instructions of defendant. In the said meeting Manmath Marathe, Mallikarjun, Pradeep kumar were also there. He admitted that he has received a letter regarding disciplinary action from the defendant company. He also admitted that if the plaintiff tendered 11 O.S.6677/2009 unconditional apology, the defendant company will take him again to the job, and same thing mentioned in the reply notice. He also admitted that the e-mail internet communication is internal. He admitted that the Senior officers of company do not do any act against the interest of company.
12. Now, let me to discuss about the documents relied by the plaintiff in support of his case i.e. Ex.P.1 to P.14.
Ex.P.1 - Appointment letter dtd. 01.01.2007.
Ex.P.2 - Job Confirmation letter dtd. 01.07.2007.
Ex.P.3, P.4, P.6, P.8, P.10 - Salary structure Ex.P.5, P.7, P.9 - Revision letters, which show regarding revising of remuneration of plaintiff from time to time.
Ex.P.11 - Legal Notice dtd. 27.08.2009 got sent by plaintiff.
Ex.P.12 - Reply notice sent by defendant company dtd. 14.09.2009.
12O.S.6677/2009 Ex.P.13 - C.D. ; Ex.P.14 Certificate reg. C.D.
13. In this instant case, the defendant company is also examined its Asst. Manager (H.R.) by name Sri. Sunil A. Mane as D.W.1 got marked 12 documents.
14. D.W.1 - Sri. Sunil A. Mane, Asst. Manager H.R. of defendant company, he stated on his affidavit evidence reiterating the contentions written in the written statement.
On going through the cross-examination of D.W.1 made by the plaintiff's counsel, it is noticed that He had got direct official communication with plaintiff from 08.06.2007 to till his termination in August 2009, regarding appointments, performance appraisal of all employees of company and communicating through e-mails. He had not communicated with plaintiff with regard to meetings held by him; but with Mr. Rajesh Jain, Business Manager.
He stated in the cross-examination that he came to know about what was happened in the meeting held on 04.08.2009 through e-mail sent. The e-mail at Ex.D.5 was sent to me. Vaisali Vydhya got information from Rajesh 13 O.S.6677/2009 Jain. Mr. Rajesh Bahal has sent e-mail at Ex.D.5, the vice-president of sale, all India operation.
He stated that the persons attended the meeting sent e-mail to Vice-President Rajesh Bahal and Business Development Manager, Rajesh Jain and in turn, they have sent e-mail to H.R. Department. They have got documents that after resignation, plaintiff had worked in other companies.
15. Now, I proceed to examined the documents produced and got marked by the defendant company i.e. Ex.D.1 to D.12.
Ex.D.1 - Authorisation letter dtd. 16.07.2012, authorizing D.W.1 to give his evidence on behalf of defendant company..
Ex.D.2 - Copy of Termination order dtd. 10.08.2009, on perusal it is mentioned that "subsequent to resignation during the period of notice, it has been observed that you have instigated Karnataka Teammates to resign forcibly and have misused your position in the company during discharge of your duties. You have shown total indiscipline, indulged 14 O.S.6677/2009 insubordination and have grossly violated company's rules and regulations".
Ex.D.3 - Copy of letter regarding full and final settlement of dues dtd. 19.01.2010.
Ex.D.4 - Copy of letter reg. deduction with copy of cheque.
Ex.D.5 - Copy of e-mail sent by Manmath Marathe to Rajesh Bahal along with a enclosed letter regarding the episode, on perusal of letter, it is seen that wherein it is mentioned that "I was told him clearly, I am not interested to join along with him. He forced us to take decision on that day. In fact, he was asking our team members also to join along with him. He asked myself and Mr. Mallikarjun A.S.M, Hubli, resignation letter. So that mass resignation will give bad image to our company in market place. This is very unfortunate happened that day".
Ex.D.6 - Copy of e-mail by Mallikarjuna Shiruguppi to William wood, on perusal it is seen that it is mentioned that "this is further explanation to which our Ex.RSM Mr. Nagaraj 15 O.S.6677/2009 made me, compelled and forced to resign from the post of ASM on 04.08.2009. During ASM review meeting at Bangalore, in fact, Mr. Nagaraj was approaching for me Mr. Marathe and all my team members would join Aton Biotic Company and was Anti Canvassing against our organization all are living in the company, but myself, Mr. Marathe and all my team members were not interested in joining other organization some how, Mr. Nagaraj was unhappy with our decision. He had prepared the resignation letter of mine, Mr. Marathe and Mr. Pradeep Kumar in his laptop and forced us to forward to his e-mail. I came to know that Mr. Pradeep Kumar, Bangalore ASM as joined Aton Biotic with Mr. Nagara on review meet day. By taking all ASM resignation letter, he wanted to disturb the Karnataka region so immediately after ASM review meet next day morning only I have briefed you over phone which happened on ASM meet.....
".
Ex.D.7 - Copy of e-mail, regarding intimation of termination of services of Mr. Nagaraj due to his anti-company activities etc. 16 O.S.6677/2009 Ex.D.8 - Copy of e-mail sent by plaintiff of his resignation.
Ex.D.9 - Legal notice dtd. 27.08.2009 sent by plaintiff Ex.D.10 - Copy of reply notice dtd. 14.09.2009.
Ex.D.11 - C.D. containing e- mails.
Ex.D.12 - Certificate reg. downloading the e-mail.
From the evidence of D.W.1 and Ex.D.1 to D.10 it can be said that the plaintiff is terminated due to his anti company activities and Ex.D.2 goes to show that it is the termination order made by the Company assigning reasons; but the plaintiff thinking and alleging that it is the defamatory allegation made against him.
(i) At this juncture, in my view, it is necessary to see what is defamation; as per Section 499 of IPC defamation is defined as follows :
" 499. Defamation:- whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or, publishes, any imputation concerning any 17 O.S.6677/2009 person intending to harm or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases excepted to defame the person".
(ii) As per dictionary meaning of Wharton's Law Lexicon, the defamation is defined as under :
"An intentional false communication, either published or publicly spoken, that injures another's reputation or good name, holding up of a person to reduce, scorn or contempt in a respectable an considerable part of the community; it may be criminal as well as civil, includes both libel and slander."
Defamation, general term for words spoken (slander) or written (libel) to the prejudice of a persons character, in such wise as to support an action by such person against the speaker or writer.
The Act of a defaulter : Embezzlement or misappropriation of public or trust funds :
diminution, abatement, excision of any part of a customary allowance "a cutting off, a diminution by way of deficit.18
O.S.6677/2009 The defamatory statement is defined in the same dictionary as below :
A statement which tends to lower a person in the estimation of right thinking members of society, generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or redicule, or to disparage him in his office, profession, calling, trade or business.
In this instant case, on reading of the alleged statement, it can be said that the statement made in the Ex.D.2 - Termination letter can be construed as reasons for termination and if intimation regarding termination of plaintiff is circulated in e-mail, it can be considered as internal of that company and it is in the interest of company and it cannot be called as defamatory in nature and it may be construed as privileged remarks.
(iii). In this context, it is helpful to refer a ruling relied by defendant counsel in Radhakrishen Pratap Singh Vs. H.S. Bates (MANU/UP/0131/1953), wherein, the Hon'ble Allahabad High Court is held as under :
"The cause of action for defamation arises only when others get to know of the 19 O.S.6677/2009 defamation of a person - merely hurting of feelings of a person is not defamation. The remarks made by a superior officer regarding conduct of his subordinate are privileged remarks - not covered under defamation unless intentions are bad - Publication of defamatory remarks about working of a subordinate made by a superior officer are privileged remarks and hence not actionable - Defamation of rival - by retaliating not to be allowed - in order to justify the defamatory remarks, it is the duty of defendant to prove the truth behind the defamatory remarks by leading evidence.
It is further held that the essence of a cause of action for defamation lies in the fact that the person defamed is lowered in the estimation of others. If none else has heard the defamatory remarks, no suit is maintainable for damages for defamation. It is immaterial that plaintiff's feeling's were hurt by the said remarks - The superior officer had a qualified privilege to comment on the conduct of his subordinate.
If the defamatory remarks are made in performance of their duty or it is on official Act, 20 O.S.6677/2009 naturally, it must necessarily pass through the hands of subordinates. Publication to such subordinates is always privileged.
In this regard, the following passage has been reproduced from Gatley on Libel and Slander Edn. 3 288:
Defamatory but privileged words do not lose their privilege by being dictated to a typist or copying clerk in the reasonable and ordinary course of business. If a business communication is privileged, as being made on a privileged occasion, the privilege covers all the incidents of the transmission and treatment of that communication which are in accordance with reasonable and usual course of business for a businessman to dictate his business letters to a typist even though these letters contain statements defamatory of third person.
If the remarks were true, action will fail even if the publication was malicious but plea of justification must always be raised in the written statement. Not only should justification be specifically pleaded but should be strictly 21 O.S.6677/2009 proved (C.M.G. Ogivie. Vs. Punjab Akhbarat and Press Co. Ltd., Lahore A.I.R. 1929 Lah 561.) But it must be remembered that the onus to prove justification always lies on the defendant; he has to lead evidence to prove that defamatory statements made about the plaintiff were true.
(iv) In this case the learned counsel appearing for defendant has also relied upon a ruling in Sri. Satya Narain Garg through his LRs Vs. DCM Ltd. and others (MANU/DE/7110/2011), in this case, Hon'ble Delhi High Court regarding termination of services held as follows :
Merely because two views are possible, court would not interfere with conclusion arrived at by the Court, unless conclusion was illegal or perverse or causes grave injustice. In case of private employment, the employer are justified in taking steps for termination of services, if it found that employee is not upto mark - principles applicable in public law domain did not apply with respect to employees in private employment. - employment in private sector is governed by the terms and conditions of employment and unless termination is shown to 22 O.S.6677/2009 be violation of terms and conditions of employment, it could not be said that termination is illegal - In private employment, in fact, there need not be any valid reason for termination and where there is no fixed period of employment there could be termination simplicitor, public law principles do not apply to private employment - If there is violation of terms of employment while terminating employment and thus termination is illegal, employee is only entitled to reasonable damages by applying principle of mitigation of damages - plaintiff assuming his services are illegally terminated, failed to show steps taken to obtain alternative employment and hence it is rightly held as disentitled to damages.
(v) In this case, the learned counsel appearing for the defendant has also relied upon a decision regarding termination of services in Integrated Rural Development Agency Vs. Ram Pyare Pandey (1995 LLR
929), wherein, the Hon'ble Supreme Court held as follows :
Reinstatement - Back Wages - Integrated Rural Development Agency - It is neither statutory 23 O.S.6677/2009 body nor controlled by Government - Employee of such an agency - Relationship is that of master and servant - It is based on contract - No specific performance of contract of service is possible - Relief of reinstatement untenable.
It is further held that A contract of employment cannot ordinarily be enforced by or against an employer. The remedy is to sue for damages. The grant of specific performance is purely discretionary and must be refused when not warranted by the ends of justice. Such relief can be granted only on sound legal principles. In the absence of any statutory requirement, courts do not ordinarily force an employer to recruit or retain in service an employee not required by the employer.
It is furthermore held that the law regarding master and servant is not in doubt. The master can terminate the contract with his servant at any time and for any reason or for none; but, if he does so in a manner not warranted by the contract, he must pay damages for breach of contract. So, the question in a pure case of master and servant does not at all depend on whether master has heard the servant in his own 24 O.S.6677/2009 defence. It depends of on whether the facts emerging at the trial prove breach of contract.
(vi) Further, the learned counsel appearing for the defendant has also relied upon a decision regarding termination of service in Nandganj Sihori Sugar Co.
Ltd., Rae Bareli and another v. Badrinath Dixit and others, wherein, the Hon'ble Supreme Court held as follows :
Specific Relief Act (47 of 1963), S. 14 - Contract of employment - Cannot be specifically enforced of mandatory injunction to enforce a contract alleged to have been entered
- Chairman of holding company - Advising subsidiary company to appoint a person - Does not give rise to contract between subsidiary company and such person - Suit by such person to enforce contract liable to be dismissed.
It is further held that neither from the plaint nor from the evidence, is it possible to identify any concluded contract to which plaintiff was party or which the plaintiff could enforce. Even if there is a contract in terms of which the plaintiff is entitled to seek relief - neither on principles 25 O.S.6677/2009 of law or equity nor under any statute did the plaintiff acquire an enforceable right by reason of letters exchanged between holding company and subsidiary company - the only relief which is available in the law is for damages not for specific performance or for mandatory injunction.
(vii) Further, the learned counsel appearing for the defendant has also relied upon a decision regarding termination of service in M/s. Pearlite Liners Pvt. Ltd.
Vs. Manorama Sirsi, wherein, the Hon'ble Supreme Court held as follows :
Order 7 Rule 11 of CPC - Relief declaration and permanent injunction - service matter - private employment - no written contract - employee not complying with transfer order seeking declaration that said transfer order is illegal and she will continue to be in service and entitled to all emoluments - also seeking permanent injunction restraining the employer from holding enquiry against her - Relief, if granted would amount to enforcing contract of personal service which is barred under law - such relief cannot 26 O.S.6677/2009 be granted by civil court - suit should be rejected at the threshold.
It is further held that - it is well settled principle of law that a contract of personal service cannot be specifically enforced and a court will not give a declaration that the contract subsists and the employee continues to be in service against the will and consent of the employer; if it does not fall under well recognized exceptions i.e. removing from service in contravention of provisions of Article 311 of Constitution of India; under industrial law and a statutory body acts in breach of violation of mandatory provisions of statute.
(viii) Further, the learned counsel appearing for the defendant has also relied upon a decision regarding termination and relief sought in Apollo Tyres V. CP Sabastain (2010 II LLN 44), wherein, the Hon'ble Supreme Court held as under :
Employee filing a suit before Munsiffs court seeking inter alia, a declaration that he is still a workmen and continues to be a workman in the appellant company - suit was dismissed by trial 27 O.S.6677/2009 court holding that it had no jurisdiction - 1st appellant authority reversed the said judgment holding that court had jurisdiction - high court confirmed order of appellant court - The Hon'ble Supreme Court held that the suit filed by the plaintiff is barred by section 14(b) of the Specific Relief Act, 1963 - A contract of personal service cannot be enforced in a civil suit - the reliefs claimed by the plaintiff are clearly seeking enforcement of a contract of personal service - civil court has no jurisdiction to grant such reliefs.
(ix) Further, the learned counsel appearing for the defendant has also relied upon a decision regarding termination of services in Workmen of Firestone Tyre and Rubber Company of India Vs. Management (AIR 1973 SC 1227), wherein, the Hon'ble Supreme Court held as follows:
"The mere fact that no enquiry or defective enquiry has been held by the employer does not by itself render dismissal of workman illegal.
In the same judgment at para-42, it is observed that there is no provision either in this statute or in the act which states that an order of dismissal 28 O.S.6677/2009 or discharge is illegal if it is not preceded by a proper and valid domestic enquiry. No doubt it has been emphasized in the various decisions of this court that an employer is expected to hold a proper enquiry before dismissing or discharging a workman. If that requirement is satisfied, an employer will by and large escape the attack that he has acted arbitrarily or malafide or by way of victimization. If he has held a proper enquiry, normally, his bonafides will be established; but it is not applicable to the private employment.
(x) As far as reliability of e-mails sent as per section 65(b) of Indian Evidence Act, the learned counsel appearing for defendant has relied upon following decisions.
(a) It is helpful to refer a decision relied by learned counsel appearing for the defendant in State (N.C.T. of Delhi v. Navjot Sandhu (AIR 2005 SC 3820), wherein, the Hon'ble Supreme Court has held as follows :
According to Section 63 of Evidence Act, secondary evidence means and includes, among other things - "Copies made from the original by 29 O.S.6677/2009 mechanical process which in themselves ensure accuracy of the copy and copies compared with such copies".
Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily moveable. It is not in dispute that information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. Hence, print outs taken from the computer/servers by mechanical process and certified by a responsible official of the service providing company can be led into evidence to a witness who can identify the signatures of the certifying officer or otherwise speak to the facts based on his personal knowledge.
It is further held that irrespective of compliance of requirements of Section 65(B) which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under other provisions of the evidence act, namely sections 63 and 65. It may be that certificate containing the details in 30 O.S.6677/2009 sub-section 4 of Section 65(B) is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if law permits such evidence to be given in the circumstances mentioned in the relevant provisions namely Sections 63 and
65.
(b) It is also profitable to refer a decision relied by the defendant counsel in Vodafone Essar Ltd. v. Raju (MANU/MH/1450/2011), wherein, the Hon'ble Bombay High Court has held as follows :
The secondary evidence of the contents of a document if the original is impracticable to move and produce easily; therefore, printouts taken from the computer/server by mechanical process as contemplated under sections 65 of Evidence Act is permitted irrespective of compliance with the requirement of section 65(b) of the Act.
And further, in the same judgment at para 27, it is observed and held that 'we are concerned with computer generated bills and related documents. In view of the above undisputed position, on record, with regard to computerized bills and as plaintiff has not 31 O.S.6677/2009 filed supporting affidavit as required under Section 65(b) of the evidence act, still I am inclined to rely upon those computerized printouts which are admissible and permissible to treat as supporting documents'.
From the supra noted rulings i.e. (a) & (b), it is evidently clear that this court can rely upon e-mail documents printout taken from the computer/server and in view of these rulings, the argument of plaintiff counsel that the Ex.D.5 and 6 cannot be relied is not sustainable.
16. Further, as per the principles laid down in the supra noted authority in para-iii, it is crystal clear that the cause of action for defamation arises only when others get to know of the defamation of a person and mere hurting the feelings cannot be termed as defamation and further the remarks made by superior officer regarding conduct of his subordinate are privileged remarks which are not covered under defamation.
17. It is important to note that the learned counsel appearing for the defendant urged that the official communication cannot be construed as defamation and 32 O.S.6677/2009 communication is made with regard to anti-company activities of plaintiff and the communication is between and among the officials of the company and it is not open to public at large; it is sort of lesson and internal communication and the plaintiff cannot challenge the reasons given in termination order as defamatory.
I find no substance in the argument of learned counsel appearing for plaintiff.
For the reasons stated above in the light of ruling under the facts and circumstances of this case, I hold and record my findings on issue No.1 and 2 in Negative.
18. ISSUE NO.3: In view of my findings on issue No.1 & 2, discussions and foregoing reasons, under the facts and circumstances of this case, in the light of authorities I came to irresistible conclusion and constrained to hold that there is no sufficient and satisfactory oral and documentary evidence on record to the required civil standard or preponderance of probabilities, moreover, the alleged defamation is privileged remarks and it cannot be termed as defamation. Therefore, the plaintiff is not entitled for the reliefs as already held. It is not fit case and law does not 33 O.S.6677/2009 permit to grant such reliefs. Accordingly, I answered aforesaid issues and proceed to pass the following:
ORDER In the result, therefore this suit filed by the plaintiff against the defendant U/O 7 Rule 1 of CPC is hereby dismissed.
Under the facts and circumstances of this case, the parties shall bear their own costs.
Draw decree accordingly.
(Dictated to the Stenographer, directly over computer, typed matter, corrected, signed and then pronounced by me in open Court on this the 5th day of July, 2014.) (MASTER R.K.G.M.M. MAHASWAMIJI) VIII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined on behalf of the plaintiff;
P.W.1- C.S. Nagaraja List of Documents marked on behalf of the plaintiff:-
Ex.P.1 Appointment order dtd. 01.01.2007 34 O.S.6677/2009 Ex.P.2 Confirmation of service letter dtd.
01.07.2007 E x . P . 3 , Salary Structure P.4, P.6, P.8, P.10 E x . P . 5 , Revision letters P.7, P.9 Ex.P.11 Legal notice dtd. 27.08.2009 Ex.P.12 Reply notice dtd. 14.09.2009 Ex.P.13 C.D. Ex.P.14 Certificate reg. C.D. List of witnesses examined on behalf of the defendant :-
D.W.1 Sunil A. Mane List of Documents marked on behalf of the Defendant:-
Ex.D.1 Authorisation letter dtd. 16.07.2012 Ex.D.2 Copy of Termination order dtd.
10.08.2009 Ex.D.3 Copy of letter regarding full and final settlement of dues.35
O.S.6677/2009 Ex.D.4 Copy of letter reg. deduction with copy of cheque.
Ex.D.5 Copy of e-mail sent by Manmath Marathe to Rajesh Bahal along with a enclosed letter regarding the episode Ex.D.6 Copy of e-mail by Mallikarjuna Shiruguppi to William wood Ex.D.7 Copy of e-mail Ex.D.8 Copy of e-mail sent by plaintiff.
Ex.D.9 Legal notice dtd. 27.08.2009 Ex.D.10 Copy of reply notice dtd. 14.09.2009 Ex.D.11 C.D. containing e- mails.
Ex.D.12 Certificate reg. downloading the e-mail VIII Addl. City Civil & Sessions Judge, Bengaluru.