Delhi District Court
M/S Spicejet Limited vs Mr. Siddharth Kasana on 11 December, 2012
IN THE COURT OF AJAY GOEL: ADDITIONAL DISTRICT JUDGE-II,
NORTH DISTRICT, DELHI.
CS-274/09/08
In the matter of:
M/s Spicejet Limited
Having its Regd. Office at
near steel gate bus stop, Terminal-I
Indira Gandhi International Airport
New Delhi-110037
Through its Authorised Representative
Sh. Sanjay Sharma. ......... Plaintiff.
VERSUS
Mr. Siddharth Kasana
Kasana Farm
DLF Chhatarpur
New Delhi-110074. .........Defendant.
Date of institution:- 22.12.2008
Date of assignment to this court:- 14.09.2012
Date of arguments:- 06.12.2012
Date of decision:- 11.12.2012
JUDGMENT
1. Vide this judgment, I shall dispose off the instant suit for recovery of Rs. 18,53,000/- alongwith pendentelite and future interest filed by the plaintiff against the defendant. The case of the plaintiff as set out in the plaint is that plaintiff is a company duly incorporated under Companies Act, 1956 and is engaged in the business of air travelling. As stated defendant was appointed at the post of Trainee Captain, Operations Department on various terms and conditions as per the letter of appointment dated Page:- 1/14 CS-274/09/08 18.07.2006. Plaintiff had sent the defendant for training as Captain on Boeing 737-800 Aircraft and all the expenses incurred in the said training were borne by the plaintiff. It was agreed that the cost of training shall be calculated on actual cost incurred by the company of the said training including travel, per diem and accommodation. It was also inter-alia agreed that the defendant shall work with the plaintiff for a minimum period of five years in such functions as may be assigned to him from time to time. The defendant had also deposited five cheques no. 575802 to 575806 dated 01.04.2008 of Rs.1,70,000/- each to cover up the tangible and other tangible cost of training in the event of defendant leaving employment with plaintiff before completing minimum period of five years and defendant executed an indemnity bond cum service undertaking dated 25.07.2006 in this regard in favour of the plaintiff. However, defendant violated the terms and conditions of the appointment as he was found to be under the influence of alcohol while he was operating a flight and for illegal and malafide facts and accordingly, he was suspended as his case was under
scrutiny by DGCA and the reply of the DGCA indicating future course of action was received on 19.2.08. As stated vide letter dated 20.3.08 the defendant was asked to report to the chief pilot at the earliest. However the defendant did not respond to the said letter and instead he preferred to resign from the plaintiff company on 27.2.08. As stated considering such malafide action of the defendant he becomes liable to reimburse the training cost incurred by the plaintiff upon the defendant as per the indemnity bond signed by the defendant at the time of the appointment. It was further stated that after resigning from the job the defendant filed the suit for declaration, permanent and mandatory injunction against the plaintiff which is pending. As stated as per the undertaking taken by the defendant in the indemnity bond the plaintiff presented the aforesaid Page:- 2/14 CS-274/09/08 cheque bearing no. 575802 to 575806 dated 01.04.2008 of Rs. 1,70,000/- each issued by defendant in discharge of his part of liability with its banker, however said cheque was returned unpaid with remarks 'Insufficient Funds' vide cheque returning memo dated 08.04.2008. Legal notice dated 15.04.2008 was issued and was duly served but neither reply was said nor the said notice was complied by the defendant and finding no option plaintiff had filed complaint u/s 138 NI Act. As stated defendant is liable to pay a sum of Rs. 17,00,000/- towards principal amount and a sum of Rs.
1,53,000/- towards interest @ 12% p.a since the date when defendant resigned from the services of plaintiff and accordingly, it was prayed that the instant suit be decreed for the said amount in favour of the plaintiff and against the defendant.
2. Written statement was filed on behalf of the defendant in which preliminary objections were raised to the effect that suit is liable to be dismissed since has not been instituted by a properly authorised person, is bad for want of proper verification, suit does not disclose any cause of action and plaintiff has concealed material facts. On merits, it was stated that defendant fulfilled all his duties and was able to satisfactorily complete his training on Boeing 737-800 aircraft and was even confirmed as First Rated Officer on February,2007 by the plaintiff. It was stated that at the time of appointment defendant had no bargaining power and was in no position to alter or amend any of the terms of appointment which the plaintiff made him sign at the time of joining. It was stated that it was in the nature of a dotted line contract which the defendant was forced to accept. It was stated that defendant had no intention of leaving the employment with the plaintiff before the expiry of 5 years lock in period not only for the reason that defendant is a capable and talented pilot but also for the reason that defendant's father had taken on various loans to fund the defendant's initial Page:- 3/14 CS-274/09/08 training. It was stated that defendant made complaints regarding smoking in the cockpit by the senior pilots but no action was taken against them. Even defendant took video of senior pilots while they were smoking in the aircraft but the plaintiff instead chose to save them and punish defendant for having used a mobile camera while in flight. As stated defendant worked sincerely and to the complete satisfaction of the plaintiff, until the malafide and unprofessional manner in which the plaintiff's administration dealt with the complaints made by the defendant. It was denied that defendant was ever suspended for being under alleged influence of alcohol as is being suggested by the plaintiff or that any such case was under the scrutiny of DGCA. It was stated that letter dated 21.2.08 issued by the plaintiff to the defendant was a clear instance of the victimization being faced by the defendant. As far as cheques in question were concerned it was stated that defendant was made to sign the said cheques on account of dominant position of the employer making the defendant sign on a dotted line contract and plaintiff had no right to present said cheques for encashment and the same is the subject matter of the suit filed by the defendant. Rest of the contents were denied and it was prayed that suit of the plaintiff be dismissed.
3. Replication was filed by the plaintiff in which contents of the plaint were reiterated and those of the written statement were denied.
4. From the pleadings of the parties following issues were framed:-
1) Whether the suit has been filed by duly authorised person on behalf of the plaintiff?
2) Whether the plaintiff has no right to present the cheque which were issued by the defendant as security for payment since there was no violation of any of the terms and conditions of the appointment to the plaintiff company by the defendant?OPD Page:- 4/14 CS-274/09/08
3) Whether the defendant was forced to resign from the plaintiff company on account of the pilots whom the defendant had exposed as pleaded?OPD
4) Whether the suit is liable to stayed u/s 10 CPC in view of the pendency of another suit?
5) Whether the defendant is liable to pay a sum of Rs.1,53,000/- towards principle amount and interest @ 12% per annum since the date of his resignation from the services w.e.f 27.2.08 to 27.11.08?OPP
6) Relief.
5. Inadvertently, while framing the issues, the amount of Rs. 1,53,000/- has been mentioned in issue No. 5 though it should be Rs. 18, 53,000/- as per averments made in the plaint. Accordingly, same is corrected and issues are now re-framed which are as under:-
1) Whether the suit has been filed by duly authorised person on behalf of the plaintiff?
2) Whether the plaintiff has no right to present the cheque which were issued by the defendant as security for payment since there was no violation of any of the terms and conditions of the appointment to the plaintiff company by the defendant?OPD
3) Whether the defendant was forced to resign from the plaintiff company on account of the pilots whom the defendant had exposed as pleaded?OPD
4)Whether the suit is liable to stayed u/s 10 CPC in view of the pendency of another suit?
5) Whether the defendant is liable to pay a sum of Rs.18,53,000/- towards principle amount and interest @ 12% per annum since the date of his resignation from the services w.e.f 27.2.08 to 27.11.08?OPP
6) Relief.
6. Plaintiff in support of its case examined PW-1 Sanjay Sharma and relied upon letter of authority and resolution Ex. PW-1/1, letter of appointment Page:- 5/14 CS-274/09/08 dated 18.7.06 Ex. PW-1/2, copy of cheques Ex. PW-1/3, copy of indemnity bond Ex. PW-1/4, copy of cheque returning memo Ex. PW-1/5, copy of legal notice Ex. PW-1/6.
7. Defendant examined himself as DW-1 and relied upon DW-1/1 copy of suit filed by defendant(same was not filed and was not exhibited during tendering of affidavit), true copy of NDTV news alongwith translation Ex. DW-1/2, original letter of appointment Ex. DW-1/3, copy of aircraft rules Ex. DW-1/4, letter dated 31.1.08 Ex. DW-1/5( this document was already exhibited as Ex. PW-1/D-3), letter dated 18.2.08 Ex. DW-1/6, letter dated 20.2.08 Ex. DW-1/7(this document was already exhibited as Ex. DW-1/D-1), letter dated 27.2.08 Ex. DW-1/8, statement of defendant before director general civil aviation Ex. DW-1/9, letter dated 3.3.08 Ex. DW-1/10 (this document was already exhibited as Ex. PW-1/D-2), letter dated 5.3.08 Ex. DW-1/11, letter dated 9.5.08 Ex. DW-1/12, summary chart of defendant Ex. DW-1/13, Fly crew training certificate Ex. DW-1/14(this document was already Ex. PW-1/D-4), CD of NDTV Ex. DW-1/15.
8. I have heard Ld. Cl. for both the parties as well as perused the record. My issue-wise findings are as under:-
9. Issue No. 1. Whether the suit has been filed by duly authorised person on behalf of the plaintiff?:- The plaintiff has relied upon Ex. PW-1/1 and Ex. PW-1/2 to prove this issue, the onus of which was upon them. Ex. PW-1/1 shows the letter of authority in favour of Mr. Sanjay Sharma who was authorised to file the present suit on behalf of M/s Spicejet Ltd. i.e. plaintiff and has also deposed before this court as PW-1. Ex. PW-1/1 also shows the true copy of extract of proceedings authorising Sh. Kishore Gupta, Director to delegate further powers to officers of company as he may deem fit and in pursuance of same Sh. Sanjay Sharma, Manager (Legal) was authorised. Ld. Counsel for plaintiff placed reliance upon AIR Page:- 6/14 CS-274/09/08 1982 Delhi 487, wherein it was observed that the "presumption is attached as per the evidence act in favour of the attorney holder on behalf of corporate body that the person executing it is competent to do so". No rebuttal has come against this piece of evidence. Accordingly, issue No. 1 is decided in favour of plaintiff and against the defendant.
10. Issue No. 4. Whether the suit is liable to stayed u/s 10 CPC in view of the pendency of another suit?:- The onus of proving this issue was on the defendant. The pleadings are on the record which shows that certain reliefs have been sought against plaintiff by defendant but during the course of arguments, this issue was not pressed as it was submitted that finding of the court in the matter in controversy will automatically be binding in other suit and plea of resjudicata can be taken at appropriate stage in that suit. Hence this issue is decided in favour of plaintiff and against the defendant.
11. Issue No. 2. Whether the plaintiff has no right to present the cheque which were issued by the defendant as security for payment since there was no violation of any of the terms and conditions of the appointment to the plaintiff company by the defendant?OPD and Issue No. 3. Whether the defendant was forced to resign from the plaintiff company on account of the pilots whom the defendant had exposed as pleaded?OPD and Issue No. 5. Whether the defendant is liable to pay a sum of Rs.18,53,000/- towards principle amount and interest @ 12% per annum since the date of his resignation from the services w.e.f 27.2.08 to 27.11.08?OPP:- All these issues are taken up together being inter-connected. In the present case, the matter in controversy can be adjudicated on the following points: whether terms and conditions of the plaintiff company were violated by defendant; whether he was forced to resign in the circumstances mentioned in case and whether Page:- 7/14 CS-274/09/08 plaintiff had right to get the cheques encashed. The answer to third question depends upon the answers to questions No. 1 and 2 because if it is held that resignation was forced and no terms and conditions were violated, the suit of the plaintiff is bound to fail. The interesting facts have emerged in the suit. DW-1/15 which is a CD of news telecast on NDTV exposing certain misdeeds of pilot was also seen by this court which reflects the manner in which the pilot was found smoking in the cockpit and defendant herein had taken the picture of the same on the mobile and made complaint to the plaintiff, therefore, adjudication as to whether the attitude of the plaintiff has been vindictive against defendant emerges as important point for discussion. The present suit not only talks about the cause of action having arisen between the plaintiff and defendant but even otherwise is of utmost importance to know about the safety and security of general persons who were passengers in the said flight. The plaintiff has cleverly tried to show and plead the case as simplicitor suit for recovery by averring that cheques in question given as security were liable to be encashed and defendant was liable to pay the amount which was incurred on his training, though otherwise the plaintiff has not approached this court with clean hands. Plaintiff has pleaded that only 5 cheques of amount of Rs. 1,70,000/- each was issued by plaintiff as mentioned in para 3 of the plaint. The defendant disputed the same and rather pleaded that they were 10 cheques and then only plaintiff clarified the position in replication. Further they have also failed to bring on record the expenses incurred on the training of defendant. It is not brought on record as to how they reached to magical figure of Rs. 17 lac to contend that expenditure of Rs. 17 Lac was incurred on the training of defendant. This question of calculation of amount was raised in para 4 of the Written Statement but still the plaintiff did not say anything. No details of training and no amount of Page:- 8/14 CS-274/09/08 expenditure has been brought on record. Mere gospel saying of plaintiff does not get the backing of the law. The guarantee could have been invoked against amount which is actually incurred. Moreover, if 5 cheques of Rs. 1,70,000/- were given by defendant as stated in the plaint then amount at the most comes to Rs. 8,50,000/- and not Rs. 17 lac. The plaintiff was never given any show cause notice and no inquiry was ever conducted earlier against him which could show, if there was misconduct on his part. No incident of misconduct has been brought on record for the duration of two years when defendant had been working as co-pilot. Not even single incident for those 2 years has been brought on record that he was drunk at any point of time. It is very strange that plaintiff never took any decision or any action against pilot namely Mr. T. Bannerjee who was smoking in the cockpit and made the defendant as scapegoat. The mere fact that he was using the mobile for videography was so grave misconduct on his part which in their view over shadowed the action of pilot which could have taken the life of 160 people travelling on board. It seems that plaintiff became vindictive towards defendant because of misconduct of pilot Mr. T. Bannerjee which created national debate and outrage on the conduct of the pilot caught smoking while flying the aircraft which also resulted in diminishing their reputation whereby they were bent upon destroying the career of defendant. Ex. DW-1/12 letter dated 09.5.2008 issued by Indigo/Airlines where defendant sought the appointment after resignation from plaintiff company also shows the nexus of all the airline companies whereby whole career of one person can be ruined if the hiring company does not issue NOC to pilot enabling him to work somewhere else. Displeasure of DGCA regarding use of mobile phone in cockpit was conveyed to defendant vide letter Ex. PW-1/D2 but said displeasure shown by DGCA has never been placed on record. During recording of CD, one Page:- 9/14 CS-274/09/08 Mr. Ajay Singh stated that plaintiff had no knowledge of such incident prior to filming of smoking of pilot by defendant on 04.1.2008 but this fact is also belied from letter dated 31.1.2008 Ex. PW-1/D3 whereby Captain Jatti Dhillon, Flight Operations of plaintiff has admitted that few months ago, the defendant had brought to their notice that Captain namely T. Bannerjee use to smoke in the cockpit. It is shame on the part of plaintiff that instead of taking prompt action against erring pilot they were more interested in saving their reputation and fame keeping the lives of passengers at stake. Irrational behaviour of pilot could not only have jeopardize and vanished the life of 160 innocent passengers but it would have affected 160 families. Every person waits on the airport with the hope that his kith and kin is coming safely on airport from flight. If the defendant had dared to use mobile, it was for the benefit of passengers and to expose the irrational behaviour of pilot on board. The counsel for plaintiff has argued that action was taken against co-pilot because he should have stopped the pilot from smoking in the cockpit. The whole pleadings and evidence itself depict that the defendant had to record the act of pilot only when he failed to stop him from smoking in cockpit. Moreover, the clipping of whole duration itself shows that pilot who was senior in command had not bothered to buzz and did not accede to the request of co-pilot/defendant even at the time of videography and rather kept on enjoying the smoking. One more interesting fact which has emerged on record is that how did pilot manage to have cigarette and lighter in the cockpit by giving slip to security personnels. Every passenger is thoroughly frisked as well as his whole baggage which includes tangible and non-tangible things before they enter in the aircraft. The security and safety which should be major concern seems to be compromised whereby the pilots or the staff are either nor thoroughly checked or they have deviced certain methods vide which they Page:- 10/14 CS-274/09/08 can give a slip to security and take cigarette and lighter in the cockpit. If moving bus or train or vehicle on road is engulfed in fire at least there are some chances to control it but misery of the persons is unimaginable who are in mid air and plane catches fire because of the negligence of the pilot and staff and they start burning like inferno and nothing can be done. 'No escape except death'. Instead of taking action against pilot who was smoking in the cockpit and taking action against co-pilot who was not at fault shows the attitude of plaintiff. Further principles of natural justice have been fully violated and have been given go bye. Another interesting point is that defendant in the written statement has stated that he was willing to work but crux of whole of the discussion is that he was forced to resign though he was ready and willing to continue as co-pilot in the establishment so it cannot be stated that he has violated the terms of service. One more interesting fact is that if this practice is allowed whereby the plaintiff is at liberty to get the cheque issued in their favour for hefty amount and thereafter they create such an atmosphere whereby defendant is unable to work and is forced to resign or asked to work on threatening him of encashment of those cheques, it will be a mockery of system. The person in commanding position will bargain either for amount or for the forced services from the defendant which is not less then slavery. Ld. Counsel for the defendant rightly raised another contention that the cheque issued by the defendant to the plaintiff was by way of security and as per the judgment passed by the Hon'ble Supreme court of India in case titled as "M.S. Narayana Menon @ Mani Vs State of Kerala and Anr. Criminal Appeal No. 1012 of 1999" and the Hon'ble High Court of Delhi in case titled as "College Culture & Ors. Vs. Apparel Export Promotion Council 2007 (99) DRJ 215", the provisions of Negotiable Instrument Act are not attracted in case of security cheque. On the other hand Ld. Counsel for the Page:- 11/14 CS-274/09/08 plaintiff argued that the cheque was issued as a security against contingency that if the defendant leaves the job without information the liability/cause of action will arise against him. It is further argued that as soon as the defendant stopped reporting to his duty he breached the mandatory condition resulting in arising of liability so the present cheque is to be considered against the discharge of liability debt/liable. It is a well settled law that the provision of section 138 of NI Act are only attracted if there is existing debt/liability at the time of issuance of the cheque. Admittedly, the cheques had been issued as security by the defendant to the plaintiff and he was not liable at the time of issuance of the cheque. The judgment relied upon by the defendant i.e. "College Culture & Ors. Vs. Apparel Export Promotion Council 2007 (99) DRJ 215" squarely covers the scenario as in the instant case wherein it was held that "the statute does not refer to the debt being payable, meaning thereby, a post dated cheque for a debt due but postponed at a future date would attract section 138 of the Negotiable Instruments Act 1881. But the cheque issued not for an existing debt, but issued by way of a security, would not attract section 138 of the Negotiable Instruments Act 1881, for it has not been issued for a debt which has come into in existence." Therefore, it is clearly established that the cheque issued as security would not attract the provision U/s 138 of NI Act. If cheques cannot be get encashed under the provisions of NI Act then same cannot be get encashed for the purpose of civil suit as well and thus these cheques are of no use and no liability arises out of the same. One more aspect which is required to be dealt is regarding unreasonable bargain between the parties. The observations have been made in the judgment titled as Surender Kumar Verma & Ors. Vs State of Rajasthan & Ors. decided on 03.02.2000 by Hon'ble Rajasthan High Court and also in case titled Page:- 12/14 CS-274/09/08 Central Inland Water Transport Corporation Ltd. Vs Brojo Nath Ganguly wherein it was held that "Courts will not enforce and will strike down an unfair and unreasonable contract or unfair and unreasonable clause of contract, entered into between the parties who are not equal in bargaining power". In the above referred case, a company entered into a scheme of arrangement with the corporation, a government company, with the approval of the High Court. Under the scheme, an officer of the company could accept the job of the corporation, or in the alternative, leave the job and receive a meagre amount by way of compensation. The rules of the corporation provided that the services of officers could be terminated by giving three month's notice. The petitioner's services were terminated in this manner. The petitioner challenged this rule as arbitrary under Acticle 14 of the Constitution of India, and alleged that a term in a contract of employment entered into by a private employer, which was unfair, unreasonable and unconscionable was bad in law. This rule formed part of the contract of employment and its validity fell to be tested, by the principles of the law of contracts. Further it was discussed that "It is settled law that if a contract or a clause in a contract is found unreasonable or unfair or irrational, one must look to the relative bargaining power of the contracting parties. In dotted line contracts there would be no occasion for a weaker party to bargain or to assume to have equal bargaining power. He has either to accept or leave the services or goods in terms of the dotted line contracts. This option would be either to accept the unreasonable or unfair terms or forego the service for ever. With a view to have the service of the goods, the party enters into a contract with unreasonable or unfair terms contained therein and he would be left with no option but to sign the contract". In these circumstances, even doctrine of estoppel does not Page:- 13/14 CS-274/09/08 apply. It is ample and crystal clear that there was no violation on behalf of defendant in any terms and conditions of the appointment and in fact the defendant was forced to resign from plaintiff company as he had exposed the pilot and defendant is not liable to pay any amount and cheque in question could not be got encashed by plaintiff. All these issues are decided against the plaintiff and in favour of defendant.
12. Relief:- In view of the above observations, the suit of the plaintiff is dismissed with costs. Before parting with, I deem it a fit case where copy of this judgment should be sent to DGCA, Civil Aviation Ministry to look into the matter and to apprise this court with respect to action taken in the matter against Mr. T. Bannerjee, Pilot, within one month. Separate file be maintained for this purpose. Decree sheet be prepared. File be consigned to record room.
Announced in the open court on (AJAY GOEL) 11.12.2012 ADJ-II/(North)Delhi. Page:- 14/14 CS-274/09/08