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2017 DIGILAW 892 (CAL)

Titagarh Wagons Limited v. T. Narashima Rao

2017-11-20

SAHIDULLAH MUNSHI

body2017
JUDGMENT : 1. This is a suit for declaration and perpetual injunction. In short, the plaintiff’s case is that– (i) At all material times it carried on business as manufacturer and supplier of wagons and coaches. Indian Railways and Ministry of Defence, Government of India, is one of the customers of the plaintiff. It is a reputed concern and has got some goodwill in the business world. Defendant was appointed a Manager (coaches) in the factory of the plaintiff at Titagarh, West Bengal on 25th September, 2007 under a Contract of Employment. (ii) The Contract of Employment contained certain terms and conditions which the defendant was under obligation to follow during his tenure of service with the plaintiff. (iii) The terms and conditions will be apparent from the defendant’s Letter of Appointment issued on 22nd October, 2007 as also the joining report dated 16th October, 2007. The defendant accepted the terms and joined the service. (iv) A negative covenant was agreed upon by and between the plaintiff and the defendant that the defendant would not disclose and/or divulge of any information, knowledge, know-how data, documents, reports, manufacturing process of the plaintiff to any other company and that the said negative covenant is binding on the parties and is enforceable in law. (v) The defendant subsequently was assigned with the work of Deputy Works Manager and he was also sent to the factory of an associate of the plaintiff at Bharatpur, Rajasthan to oversee the manufacturing of wagons and coaches. In course of his employment the defendant came to know all information, know-how data, documents, reports, records and manufacturing process of the plaintiff for wagons and coaches. (vi) All on a sudden, on 30th April, 2010, the defendant issued a letter purporting to be a resignation letter thereby tendering resignation to his services. The said letter was in breach of the Terms of the Contract of Employment and, therefore, was not acceptable by the plaintiff and further that such letter of resignation was actuated by malice and was mala fide. (vii) While tendering resignation on 30th April, 2010, it was alleged by the defendant that the defendant returned all files, documents, business designs as well as computer database of the plaintiff which was entrusted to him. However, such representation was incorrect as no such files. Documents or designs or computer database was returned by the defendant. (vii) While tendering resignation on 30th April, 2010, it was alleged by the defendant that the defendant returned all files, documents, business designs as well as computer database of the plaintiff which was entrusted to him. However, such representation was incorrect as no such files. Documents or designs or computer database was returned by the defendant. (viii) On enquiry the plaintiff came to know that the defendant had joined a rival company which was engaged in a similar business and manufacturing activities as that of the plaintiff. The factory of the said company is situated at Bharatpur, Rajasthan. The plaintiff, by a letter dated 25th August, 2010, called upon the defendant to comply with the terms of his employment with regard to maintaining secrecy. The defendant, by his letter dated 14th September, 2010, replied to the letter of the plaintiff issued on 25th August, 2010. The defendant admitted that he has joined one M/s. GEW, Bharatpur which is a rival company of the plaintiff. The defendant also accepted and acknowledged the Terms of the Contract which were binding on the defendant. However, the defendant made a wrongful claim for outstanding dues. The defendant issued an e-mail on 14th October, 2010 to the Managing Director of the plaintiff containing defamatory statement. The plaintiff issued a notice to the defendant through its learned Advocate on 1st November, 2010 and termed that the resignation letter tendered by the defendant is illegal and contrary to the Terms and Conditions of the Letter of Appointment. The defendant issued an e-mail on 14th October, 2010 to the Managing Director of the plaintiff containing defamatory statement. The plaintiff issued a notice to the defendant through its learned Advocate on 1st November, 2010 and termed that the resignation letter tendered by the defendant is illegal and contrary to the Terms and Conditions of the Letter of Appointment. The plaintiff, therefore, has prayed for the following reliefs : (a) “Decree for declaration that the letter dated 30th April, 2010 is illegal, null and void; (b) Decree for the said letter dated 30th April, 2010, to be adjudged void and delivered up for cancellation; (c) Decree for perpetual injunction restraining the defendant and its servants and agents from disclosing or divulging any information, know-how, data, documents, reports, statements, records, manufacturing process, transactions of the plaintiff to any third party; (d) Decree for perpetual injunction restraining the defendant and its servants and agents from directly or indirectly associating or collaborating with any individual, firm or company or outsiders for taking advantage or allowing to take advantage from the trade and business secrets and information/document of the plaintiff; (e) Decree for perpetual injunction restraining the defendant and its servants and agents from writing any letters or electronic mail messages to the plaintiff or to the plaintiff’s employees or to the employees of associate companies of the plaintiff or even general public containing defamatory statement as stated in paragraphs 13 and 17 hereinbefore; (f) Decree for perpetual injunction restraining the defendant from writing any letter or electronic mail messages to the employees of the plaintiff or to its associate companies, or general public; (g) Decree for perpetual injunction restraining the defendant and its servants and agents from defaming the plaintiff in any manner; (h) Decree for a sum of Rs.5,80,00,000/- against the defendant as claimed in paragraphs 15 and 21 hereinbefore; (i) Alternatively, an enquiry into damages suffered by the plaintiff and decree for such sum as may be found due upon enquiry; (j) Injunction; (k) Attachment before judgment; (l) Receiver; (m) Costs; (n) Further or other reliefs.” 2. Summons was duly served. The defendant entered appearance and filed written statement to contest the suit. In the written statement, however, there is no claim for counter-claim or set off. In the written statement the defendant has denied his signature on Annexure ‘A’ to the plaint, that is, the Letter of Appointment (Ext. A). Summons was duly served. The defendant entered appearance and filed written statement to contest the suit. In the written statement, however, there is no claim for counter-claim or set off. In the written statement the defendant has denied his signature on Annexure ‘A’ to the plaint, that is, the Letter of Appointment (Ext. A). The defendant though filed written statement, did not appear to adduce any evidence in support of his defence. 3. By an order dated 20th December, 2016 this Court held that the suit be heard ex parte against the defendant and the matter was directed to be listed on 9th January, 2017 under the heading ‘Ex parte Hearing of the suit’. Accordingly, the matter was placed as ‘undefended suit’ and hearing proceeded in absence of the defendant. The plaintiff has examined one Dinesh Arya to prove the plaint case. The Letter of Appointment dated 22nd October, 2007 has been produced by the plaintiff through the witness and the same has been marked as Exhibit ‘A’. The plaintiff has also tendered the joining report of the defendant to show that he joined his service on and from 25th September, 2007, which has been marked as Exhibit ‘B’. Contents of email from the defendant addressed to Sri Amar Ghosh and a letter dated 14th September, 2010 originally signed by the defendant addressed to Sri Umesh Choudhary, has been marked as Exhibit ‘D’ collectively. Plaintiff has also tendered a letter dated 1st November, 2010 addressed to the defendant written by Sri Atanu Raychaudhuri, learned Advocate and has been marked as Exhibit ‘E’. The resignation letter (Xerox copy) dated 30th April, 2010 of the defendant has been marked ‘X’ for identification. 4. From the deposition of the sole witness Mr. D. Arya it appears that the defendant joined the plaintiff company by issuing a joining letter and/or report dated 16th October, 2007 (Ext. B). It has been deposed that the plaintiff was appointed in terms of Exhibit ‘A’ and the witness deposed that the Terms and Conditions in the Exhibit ‘A’ was accepted by the defendant by signing the joining report dated 16th October, 2007. According to the plaint case, the defendant was not entitled to engage himself in any gainful employment or otherwise without prior permission of the company. The witness deposed that the defendant resigned on 30th April, 2010. According to the plaint case, the defendant was not entitled to engage himself in any gainful employment or otherwise without prior permission of the company. The witness deposed that the defendant resigned on 30th April, 2010. Therefore, approximately for two and half years he worked for the company and, although, he tendered resignation such resignation was not accepted because he wanted to be released the same day without serving the notice period as per the terms of his appointment. The resignation letter could not be produced by the plaintiff. At the time of deposition a Xerox copy of it was tendered and marked ‘X’ for identification. Although, it is claimed by the plaintiff that the defendant tendered resignation addressed to the Managing Director and Vice-Chairman of Titagarh Wagons Ltd. Kolkata, but original of the said resignation letter has not been produced. The resignation letter has not yet been proved by the plaintiff. It is the pleading in the plaint that the defendant is bound by the Terms and Conditions of Exhibit ‘A’. It is submitted that while the defendant joined the company it is implied that the Terms and Conditions contained in Exhibit ‘A’ was accepted by him. It is the allegation that all on a sudden, on 30th April, 2010, the defendant issued a letter purporting to be a resignation letter to resign from the service of the plaintiff on 30th April, 2010. According to the plaintiff, the said letter is in breach of the Terms of the Contract of Employment and, therefore, the same could not be accepted. Be that as it may, the letter has been addressed to the company admittedly received by the Managing Director but no reason has been disclosed by the witness on the box as to why such resignation letter could not be produced before the Court. 5. The plaintiff has made out a case that the Appointment Letter contained various terms and it attained the character of an agreement which does not permit the defendant to unilaterally take a decision to resign his service. He is bound by the contract (Ext. A). The signature of the authorized signatory of the plaintiff has no doubt been proved but when the plaintiff claims Exhibit ‘A’ to be a contract, the signature of the defendant on such document is to be proved. He is bound by the contract (Ext. A). The signature of the authorized signatory of the plaintiff has no doubt been proved but when the plaintiff claims Exhibit ‘A’ to be a contract, the signature of the defendant on such document is to be proved. In absence of such proof the document cannot be termed to be a bilateral agreement between plaintiff and defendant. It is also astonishing that plaintiff has not taken any steps even to compare defendant’s signature on Exhibit ‘A’ with his admitted signature. All rights and claims of plaintiff flow from Exhibit ‘A’ but the same has not yet been proved to have been signed and accepted by the defendant, it is not proved that the same bears the signature of defendant. In absence of this document Exhibit ‘A’, there can be no tenable contention that defendant can have no authority to resign his service, nor can any allegation be levelled against the defendant that consequence of his resignation will entail other civil consequences. That apart, fact of resignation has neither been proved, nor corroborated by any other oral or documentary evidence. 6. In the absence of resignation letter it is difficult to arrive at a conclusion that the defendant has violated the Terms and Conditions of Exhibit ‘A’. That apart, the allegation in the plaint that the defendant has gainfully employed himself elsewhere during his service in the company, has not yet been proved. It could also not be proved by the plaintiff that the defendant tarnished the image and reputation of the plaintiff in the esteem of the employees and officers. These are all allegations made in the plaint. Significantly, all such allegations have been denied by the defendant by filing written statement. Although, the defendant has not been contesting the suit by deposing on box in respect of the defence pleaded in the written statement, defence placed on record, cannot altogether be wiped out and in such a situation onus heavily lies on the plaintiff to prove its own case. If the plaintiff cannot prove its case, surely the plaintiff will not get a decree. The prayers which have been made in the plaint are all consequential to the resignation of the plaintiff. Resignation letter is an important evidence which is in the custody of the plaintiff but the same has been withheld by him. If the plaintiff cannot prove its case, surely the plaintiff will not get a decree. The prayers which have been made in the plaint are all consequential to the resignation of the plaintiff. Resignation letter is an important evidence which is in the custody of the plaintiff but the same has been withheld by him. If the resignation letter is not produced before the Court it is difficult for this Court to assess the events subsequent to the resignation of the defendant. Therefore, the declaration sought for that the letter dated 30th April, 2010 which was marked for identification and could not be produced subsequently, cannot survive and, therefore, the plaintiff is not entitled to first declaration that the letter dated 30th April, 2010, is illegal, null and void. So also no decree could be passed that the letter dated 30th April, 2010 be adjudged void and delivered up for cancellation. The other decrees for perpetual injunction as contained in prayer (c), (d), (e), (f) and (g) all emanates from the prayer (a) and (b). Therefore, those decrees can also not be granted in favour of the plaintiff. The decree as prayed for in prayer (h) of the plaint, is a decree for a sum of Rs.5,80,00,000/- (Rupees Five Crore Eighty Lakh) only, based on the averment in the plaint that the plaintiff company suffered damages in view of the overt act of the defendant by encouraging the employees of the company to join some other concerns where the defendant is allegedly associated with, are all allegations on paper but has not been substantiated either by documentary or by oral evidence. 7. The allegation of suffering damage is purely hypothetical and there is no basis for making assessment of the damage, if at all, suffered by the plaintiff. Therefore, prayer (h) cannot also be sustained. Accordingly, it is ordered that the plaintiff is not entitled to the decree as prayed for. The suit is dismissed. Department is directed to draw up and complete the decree as expeditiously as possible. Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.