Delhi District Court
Gurpreet Singh 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.57902/16
Gurpreet Singh,
R/o B6, Jalvayu Nagar,
Sector21, Noida,
Uttar Pradesh201301 .......................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 suit for recovery for a sum of Rs.6,50,201/(Rupees Six Lakh Fifty Thousand Two Hundred One Only).
Through this suit it has been prayed that a decree for a sum of Rs.6,50,201/ (Rupees Six Lakh Fifty Thousand Two Hundred One Only) alongwith GURPREET SINGH VS. ALCHEMIST AIRWAYS PVT. LTD. 1 pendentelite and future interest 24% per annum till 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 defendant No. 1 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 Delhi 110010 (hereinafter referred as defendant company). It is also the case of the plaintiff that the plaintiff was appointed at the position of "First Officer" in the defendant company vide appointment letter dated 01.05.2012 vide Ref. No. APPL/HR/APP/2K10. It is also the case of the plaintiff that after considering the performance of the plaintiff, he was later on promoted to the position of SeniorCo Pilot on 28.06.2011 vide letter Ref. No.HR/SIL/201011/02724. It is also stated that that on 23.05.2014, the plaintiff was issued an increment letter vide Ref. No.HR/SIL/201314/02724 vide which his salary was increased and revised to Rs. 21,64,524/ w.e.f. 01.04.2014. It is also the case of the plaintiff that after a mutually beneficial employment of about 5 years, he resigned from the employment of the GURPREET SINGH VS. ALCHEMIST AIRWAYS PVT. LTD. 2 defendant company on 05.04.2015 due to personal reasons. 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 the case of the plaintiff that upon completing the said notice period on 04.05.2015, 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 more than three months 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.6,50,201/ (Rupees Six Lakh Fifty Thousand Two Hundred One Only) and that the date of disbursement would be informed to him. It is also the case of the plaintiff that pursuant to the said communication, he has been constantly reminding and writing the defendant company to provide him with a GURPREET SINGH VS. ALCHEMIST AIRWAYS PVT. LTD. 3 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. 159,094 Reimbursement Account Rs. 1,29,686 Leave Encashment Rs. 2,06,231/ Gratuity Rs. 1,82,112/ Total Rs. 6,77,123/ AMOUNT DEDUCTIBLE /RECOVERABLE in Rs. T.D.S. Rs. 2,110/ Other Deductions Rs. 24,812/ Total Rs. 26,922/ TOTAL NET PAYABLE Rs. 6,50,201/
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, 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.
GURPREET SINGH VS. ALCHEMIST AIRWAYS PVT. LTD. 4 Hence, this present suit 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 and was treated as such.
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 Plaintiff witness No. 1 (in short PW1) and tendered his 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 MarkA Photocopy of increment letter dated 23.05.2014 vide Ref.
No.HR/SIL/201314/02724
2 Ex.PW1/A Appointment letter dated 01.05.2010, Ref.
No.APPL/HR/APP/2K10
3 Ex.PW1/B Promotion letter dated 28.06.2011 vide letter Ref.
No.HR/SIL/201011/02724
4 Ex.PW1/C Th letter dated 17.04.2012
5 Ex.PW1/D The letter dated 15.05.2013
GURPREET SINGH VS. ALCHEMIST AIRWAYS PVT. LTD. 5
6 Ex.PW1/F (Colly) Printout of email resignation letter dated 05.04.2015
along with certificate u/s 65B of the Indian Evidence Act 7 Ex.PW1/G (Colly) Printout of emails communication between the defendant and the plaintiff including along with certificate u/s 65B of the Indian Evidence Act 8 Ex.PW1/H Photocopy of legal notice 22.01.2016
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 plaintiff that the plaintiff is entitled for the amount of Rs. 6,50,201/ 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. 6,50,201/ 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 "First Officer" in the defendant company and GURPREET SINGH VS. ALCHEMIST AIRWAYS PVT. LTD. 6 later on he was promoted to the position of SeniorCoPilot on 28.06.2011 and his salary was also increased and revised to Rs. 21,64,524/ w.e.f. 01.04.2014 in view of increment letter as stated before. It is also the case of the plaintiff that due to personal reasons, the plaintiff had resigned from the employment of the defendant company on 05.04.2015 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.6,50,201/ (Rupees Six Lakh Fifty Thousand Two Hundred One Only) is due in his favour and against the defendant company and he also relied upon Ex. PW1/F and Ex. PW1/G. The plaintiff relied upon MarkA, Ex. PW1/A to Ex. PW1/H. It is to note here that in the present matter, it is not disputed that the plaintiff was working with the defendant company as stated before. It is relevant to pen down here that during crossexamination, PW01 stated that he was reporting to Mr. Rajesh Kaul while he was in employment with the defendant company and he resigned on 4/5th April 2015 from the defendant company. He denied the suggestion that Ex. PW1/F and Ex. PW1/G are forged and fabricated emails, he was irregular and did not discharge my employment obligations from December, 2014 to April, 2015. He also stated that he had not GURPREET SINGH VS. ALCHEMIST AIRWAYS PVT. LTD. 7 written any letter or email to any of his senior regarding nonpayment of salary. He voluntarily said that he had a verbal talk with Mr. Rajesh Kaul regarding non payment of the salary and other dues. He also stated that he was not aware that Mr. Rajesh Kaul resigned from the company on 03.06.2015 and he had already left the company in May, 2015 as such, he would not know whether Mr. Rajesh Kaul ceased to be an employee with the defendant company from 03.06.2015. Then he was question that after having resigned on 03.06.2015,Mr. Rajesh Kaul could not have written any email/letter on behalf of defendant company. What did he had to say then he replied that that will be between him and the company as he was unaware about his resignation. He denied the suggestion that he had no claim against the defendant company and he had falsely deposed in the present proceedings.
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 is 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/F and Ex.
GURPREET SINGH VS. ALCHEMIST AIRWAYS PVT. LTD. 8 PW1/G and perusal of the Ex. PW1/F , it is found that it is printout of the email dated 05.04.2015 at 9.59 P.M. allegedly sent by Gurpeet Singh to Rajesh Kaul informing him that he was resigning from his position as Senior CoPilot and Chief of Flight Officer Safety with Alchemist Airways Pvt. Ltd. and his last date of employment would be 04th May, 2015 asper his obligations under the terms of his employment contract.
Furthermore, PW1 also relied upon Certificate U/s 65B of the Indian Evidence Act dated 30.03.2016 in support of email dated 05.04.2015 at 9.59 P.M. and perusal of the same it is found that this certificate issued by Sh. Piyush Sachdeva.
It is further to note here that the plaintiff also relied upon Ex. PW1/G perusal of same it is found that it is printout of email letter dated 14.08.2015 at 1.41 PM allegedly written by Rajesh Kaul to Gurpreet informing him that his full and final as finalized by Corp HR amounts INR 650201 and the final payment 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 1.41 PM and perusal of the same it is found that this certificate issued by Sh. Piyush GURPREET SINGH VS. ALCHEMIST AIRWAYS PVT. LTD. 9 Sachdeva.
In the case of Anvar P.V vs P.K Basheer & Ors. (2014) 10 SCC 473, 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 GURPREET SINGH VS. ALCHEMIST AIRWAYS PVT. LTD. 10 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 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 GURPREET SINGH VS. ALCHEMIST AIRWAYS PVT. LTD. 11 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 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.
GURPREET SINGH VS. ALCHEMIST AIRWAYS PVT. LTD. 12 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 14.08.2015 at 1.41 PM shows that it has been issued by Sh. Piyush Sachdev and contents of the same are reproduced herein:
Certified that the printout of the resignation letter of the plaintiff dated 05.04.2016 and its reply dated 24.04.2015 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.
GURPREET SINGH VS. ALCHEMIST AIRWAYS PVT. LTD. 13 In view of above, view of the Court is that it is said that Certificate given Ex. PW1/G does not fulfill the prerequisites condition as observed in case 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 1.41 PM.
Furthermore, 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 relevant to pen down here that suit of the plaintiff is based on email dated 14.08.2015 which he failed to prove as stated before. More so, as per the case and testimony of PW1, he is entitled for total sum of Rs. 6,77,123/ and after deduction i.e. TDS Rs.2110/, other deductionsRs. 24,812/, he is entitled for a sum of Rs. 6,50,201/. but besides himself, the plaintiff did not examine any witness to prove his case that he is entitled to the amount claimed through this present suit. 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 GURPREET SINGH VS. ALCHEMIST AIRWAYS PVT. LTD. 14 have got an opportunity to crossexamine him.
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 th DAY OF 31ST DECEMBER, 2017.
(REKHA) ADDITIONAL DISTRICT JUDGE05 PATIALA HOUSE COURTS, NEW DELHI DISTRICT, NEW DELHI JUDGE CODE:DL0055 GURPREET SINGH VS. ALCHEMIST AIRWAYS PVT. LTD. 15