JCB India Limited Petitioners Vs. Abhinav Gupta Respondents
This is a complaint U/s 43 r/w Section 46 of the lnformation Technology Act
2000. The complainant company has filed thè complaint on 07.05.2008. In brief
the complaint is as under:H
M/s JCB Limited is a company incorporated under the Companies Act '|956
having its registered ofñce at B -1/1-1, I2nd floor, Mohan Cooperative Industrial
Estate, Mathura Road, New Delhi. The factory of the company situated at 23/7
Mathura Road, Ballabgarh, Harayana The `complainant is engaged in
manufacturing of Construction, Earth moving, Agricultural and Materials handling
Equipment and stated to be market leader in Jme ñeld. The complainant company
is stated to be Wholly owned subsidiary of J.C. Bamford Excavators Limited (UK), I
the complainant company is having operations in India. It is the further case of
the complainant that they appointed the respondent namely Abhinav Gupta rlo
Flat No. A-42, Fairy Hills Apartment, Sector 21-D, Faridabad, Haryana w.e.f.
11.08.06 in the Product Engir-teering Department ofthe complainant company. As
per the case of the complainant, the terms and condition contains secrecy clause
by virtue of which the employee of the corporation are not authorized to disclose
or divulge any information of a confidential nature relating to the business of the
company, to any person. All inventions and discoveries made by the employee
are to be disclosed to the company. The copyright of drawings or documents
procured by the employee during the course of the employment or from
information so required stated to be belonging to the company unless othenlvise
expressed in writing.
It is further stated that the respondent submitted his resignation on 03.01.2008
effective from 14.01.2008. It is stated in the complaint that while leaving the
company it was promised by the respondent that he will not join any company
which was in indirect competition with the complainant and shall also maintain
secrecy so attained by him during his tenure with the complainant company
which was to be kept confidential at all times. The respondent was relieved on
14.01.2008.
As per the complaint, the complainant company came to know in the second
week of March 2008 that the respondent has joined Escorts Construction
Equipment Limited, a direct competitor of the complainant company. The
respondent thus stated to have defrauded the complainant company by joining its
competitor. This was stated to have been done by the respondent with intention
to misuse and misutiiize the confidential data, drawings, designs, secrets and
other related information of the complainant company. it is contented by the
complainant that the consent so obtained by the respondent regarding his
resignation without sewing mandatory notice is vitiated as null and void.
It is specitîcally contended that on 11.03.2008, the management of the
complainant company was notitîed by its security staff that some documents I
papers containing printouts of the e-mails messages pertaining to the personal
email account of the respondent bearing email ID
abhinavdeepti@indiatimes.com, found the documents running into 12 pages
included printouts of various emails dated 03.02.08 and 05.02.2008 along with
attachments containing drawings. lt is stated that these documents gathered by
respondent during his employment with the complainant company and
transmitted the same to his personal email account. lt is contended further that
while in the employment of the complaint company the respondent by using the
complainant’s computer system and network accessed the confidential trade
secrets i.e. designs and drawings of engineering department and downloaded
ltransferred the same to his local PC. He thereafter used the said local PC
provided by the complainant company and uploaded the said confidential
designs and data to his personal email account and sent the confidential designs
I drawings and trade secrets of the complainant company as an attachment to his
personal email account which included existing product designs, designs of new
products being developed by the complainant company tobe launched in the
market in future.
It is further submitted in the complaint that respondenfs mail archive with the
complainant company suggest that he used to send mails subject
matters to email ID bearing abhinavdeegti@ìndiatimes.com which is stated to be
corroborated by the printout. It is the further case of the complainant that these
confidential drawings including drawings for a backhoe bucket link 40, tanks,
fender, post leg, hydraulic, rear post1 boom-dipper, VVA drg etc. which stated to
be the confidential proprietary tile of the company. The said file stated to be
made on ‘product lifecycle management’ which is a software used by the
complainant company to design and store its confidential designs. It is further
stated that the respondent being an employee had the login for accessing all
' drawings of the products of the complainant company. The complainant
specifically contended that the electronic evidence as and when made
available to the complainant company shall be produced as evidence. It is
stated that the respondent has committed the above conduct with the intention to
cause wrongful loss to the complainant company, which fact stated to have
diminished the value and utility of the confidential data, drawings and designs of
the complainant company. lt is further contended that the respondent has
committed the offence of hacking U/s 66 of the information Technology Act. The
complainant has stated that it has reason to believe that the respondent has
been passing on the confidential data, information, designs and drawings of the
complainant to his current employer who is a competitor of the complainant
company. The complainant company stated to have fiied a complaint U/s 420
and 406 of IPC Section 66 of the information Technology Act 2000 to the
Senior Superintendent of Police, Faridabad, Harayana on 17.03.2008. The FIR
Haryana High Court stated to have refused the anticipatory bail to the
respondent.
As per the complaint, the complainant company has filed CS(OS) No. 691l2008
against the respondent in Ithe Delhi High Court. The High Court stated to have
restrained the respondent from using the material in his possession or in any
manner part with information to which he has accessed as former employee of
the plaintiff.
It is further pleaded that so far as his complaint is concerned, the respondent has
contravened the provision of Section 43(b) of the information Technology Act
2000. lt is contended that the respondent destroyed, altered, deleted, added1
modiñed and/or rearranged data being the contidentiai information by transferring
same to his personal email ID from the computer system of the complainant
without the permission of the complainant. It is also contended that the
respondent has also contravened the Section 43(d) of the information
Technology Act 2000 by virtue of which the complainant has suffered injury.
The compíainant, therefore, claiming damages by way of compensation to the
tune of Rs. 1 Crore.
So far as the jurisdiction, it is contended in Para 40 of the complaint that the
is at Delhi, where the Internet is available using computers. Computer systems
and computer networks are physically located in Delhi and internet is also
available through various internet Service Providers at Delhi. The email identity
of the respondent is accessible through internet at DelhiI the email URLldomain
name /email server https://mail4ecel.com/owe/, on which the contidential
information and trade secrets of the complainant is available is accessible
through computers and internet at Delhi and hence it is contended that the
Adjudicating Officer, Delhi has the territorial jurisdiction to try and entertain the
present claim.
The respondent was served notice as per Rule 4 (d) of the information
Technology (Qualification and Experience of Adjudicating Officers and Manner of
Holding Enquiry) Rules 2003, in response thereto the respondent pleaded not
guilty `vide endorsement dated 02.06.2010. A Show Cause Notice dated
02/06f2010 as per Rule 4 (f) was served upon the respondent. The respondent
vide his reply dated 07.07.2010 responded to this Show Cause Notice. As
preliminary objectionfit is contended by the respondent that the present
complaint amounts to abuse of the process of law. It is also contended that the
complainant has ñled three different suits in Delhi High Court claiming civil
remedy. The respondent has given details of the three suits bearing CS (OS) No.
691l2008 claiming Rs. 50 Lacs along with interest pending in Delhi High Court,
CS (OS) No. 1021/2008 claiming Rs. 21 |__acs with interest pending in Delhi High
Court and Suit No. 1143/2008 claiming Rs. 21 Lacs with interest again pending in
Delhi High Court.
It is thus submitted that the complaint is not maintainable as the complainant has
already approached Hon’ble Delhi High Court claiming same remedy on similar
ground and as the Hon’bIe High Court is the superior Court whereas the office of
Adjudicating Officer is subordinate, hence the Adjudicatíng Officer has no locus
standi to issue Show Cause Notice to the respondent. it is thus submitted that
the present case is barred under Order 2 Rule 2 of CPC. It is speciñcally stated
in Para ‘F’ of thereply that the cause of action arose in Faridabad, Haryana
where the complainants Principle I Head Oftice is located and where the
respondent was employed. It is also submitted that since the respondent resides
in Farídabad (Haryana), thus the jurisdiction is vested only with the Adjudicating
Ofñcer of the State of Haryana and not of the Delhi. The respondent relied upon
Annexure R1 i.e. copy of appointment letter in support of his contention that the
respondent was posted at the principle I head in Haryana. The respondent
stated to have tendered his resignation at the head office. lt is further submitted
that the alleged recovery documents was only at Ballabhgarh (Haryana), the
complainant lodged FIR against respondent in Faridabad (Haryana). The alleged
material as mentioned by the complainant was sent by the respondent from his
office located in Ballabhgarh (Haryana) to his residence again located in
Faridabad (Haryana), hence the Adjudicating Ofñcer, Delhi has no territorial
jurisdiction.
lt is further objected by the respondent that there is an industrial dispute between
the parties which has been given a color of Cyber Crime by the complainant. lt is
further stated that the respondent before relieving, obtained necessary no
objection I clearances. lt is also stated that the complainant has failed to furnish
particulars of the alleged information, designs, drawings, data, "information, files
etc. pertaining to alleged architecture, manufacture, product range, present or
prospective services. lt is also stated that the alleged information I data which
has been referred by the complainant is available in the public domain and
cannot be termed as conñdential and trade secrets. lt is specitically alleged that
the complainant company has tempered and moditîed the electronic evidence
available in the form of computer hard disk of the respondent computer,
computer resources including servers located at the complainants principle I
head office.
On merit, respondent has denied the allegations para wise. lt is specifically
submitted that the alleged screen shot attached by the petitioner as Annexure 7
in th-e complaint are concocted, false and planted by the petitioner. lt is
speciñcally submitted that no individual would take out print out of his own Inbox
as it would not serve any purpose. Screen shot stated to have came into
existence after almost two months of the respondent having left the company, the
alleged screen shots stated to have been found in the premises of the registered
company, the petitioner never visited the premises of the company after having
left the job. The credibility of the alleged screen shots and sudden appearance of
the alleged screen shots stated to be doubtful as per the respondent.
It is specifically alleged that the petitioner company in fact hacked the mail server
of Escorts Construction & Equipments Ltd. It is submitted that by mere submitting
the mail archive details of the respondent does not tantamount that the
respondent is guilty of an offence. it is submitted that it is the petitioner company
who has hacked into the personal e-mail ID of the respondent and further on its
own volition the petitioner company transmitted, se-nt/ up loaded email along with
attachments using respondents personal email ID. lt is speciñcally submitted that
the petitioner company has no means, know-how, skills, reasons to hack the
personal email account because of this reason the petitioner company has failed
to provide servers details of this login details of those relevant dates and time as
mentionedI in those alleged screen shots to the police in last two years.
It is further contended- that the Adjudicating Authority may direct an enquiry to be
conducted by the CERT-IND. It is also stated that the respondent never caused
any damage to the computer resources of the complainant company in any
manner within the meaning of Section 43(b) of the information Technology Act
2000 or any other provisions thereof. It has not diminished the value I utility of the
impugned information / data or alleged confidentiality therein to cause any actual
or potential loss to the company.
it is in the backdrop of above said pleading of the parties that the Adjudicating
Authority is to decide as to whether there is sufficient cause for holding an
enquiry as per the mandate of Rule 4 (g). The formation of opinion that there is
sufficient cause for holding an enquiry by the Adjudioating Authority is with a view
to see if there is any prima facie case in favour of the claimant. The purpose is to
dismiss the frivolous or baseless claim petitions. in order to form opinion the
Adjudicating Officer is to be guided by the pleading of the parties, the documents
placed on record, submissions made by the parties and investigation report, if
any, obtained by the Adjudicating Authority. if the Adjudicating Authority forms an
opinion that there is a prima facie case, the enquiry shall be directed into the
allegations whereby the parties are directed to lead evidence in order to prove
their respective allegations I contra allegations I defences. I have gone through
carefully the pleading of the parties respective documents. I have also granted
opportunity to the parties and their respective counsels argued on behalf of their
parties. Vide proceeding dated 04.08.2010, after giving opportunity of
submissions to the counsels of the parties, the matter was reserved for judgment
/order.
JURISDICTION
As the issue of jurisdiction is sine cue non to direct further enquiry, it is necessary
first of all to decide the issue of jurisdiction, more so when this issue has been
raised speciflcally in the pleading. The complainant has specifically stated in
Para 40 as to how the Adjudicating Authority is vested with the jurisdiction. The said paragraph is reproduced herein below: “ That the cause of action accrued at Delhi since the respondent works for the complainant's direct competitor, whose registered office is at Delhi, the Internet is available, using computers, computer systems and computer networks, physically located in Delhi, Internet is also available through various Internet Service Providers at Delhi, the email identity of the respondent, being abhinavdeepti@indiatimes.com, is accessible through Internet at Delhi, the email URL I domain name! email server https:/lmail4ecel.com/owe/, on which the confidential information and trade secrets of the complainant is available, is accessible through computers and Internet at Delhi, and as such, this Hon’ble Court has got the territorial jurisdiction to try and entertain the present suit." On the contrary the respondent in its reply has contended in the form of Para ‘H’ of the preliminary submission that the Adjudicating Authority has no territorial jurisdiction on the ground that: “(i) respondent joined the employment of the complainant company and accepted the terms of employment at its principle/Head office located in Ballabhgarh, Haryana. (ii) respondent tendered his resignation letter to the complainant company’s principlefHead office located in Ballabhgarh, Haryana; (iii) respondent's resignaction letter was accepted by the complainant company at its principle/Head office located in Ballabhgarh, Haryana vide_ letter ref: JCB/HRIR/RKl2008, dated 04.01.2008. (iv) the alleged evidence that the complainant has been relying upon (although fabricated) was discovered at complainants premises located in Ballabhgarh, Haryana (v) the complainant lodged FIR against the respondent in Faridabad, Haryana, (vi) the alleged material as mentioned by complainant was sent by respondent from his office (located in Ballabhgarh, Haryana) -to his residence (located in Faridabad, Haryana), (vii) the complainant company issued a good ‘Character and Conduct Certificate’, vide letter ref: JCB/EXP/CER/87149, dated 14.01.2008 from its principlefHead Office located in Baliabhgarh, Haryana to the respondent in Ballabhgarh, Haryana again. On the basis of Para 1 of preliminary submission, it is argued on behalf of the respondent that Adjudicating Officer has no territorial jurisdiction in as much as the complainant filed the complaint to the SSP, Ballabhgarh (Haryana) as against the respondent initially. Rule 4(b) of the Information Technology (Qualification and Experience of Adjudicating Officer and manner of Holding an Enquiry) Rule 2003 deals with the territorial jurisdiction which is as under:~ “ The complaint shall be made to the Adjudicating Officer of the State or Union Territory on the basis of location of Computer System, Computer Network as defined in sub-Section 2 of Section 75 of IT Act .... Sub-Section 2 of Section 75 of the IT Act deals with application of the Act to the offence or contravention committing outside lndia by providing that the provision of the Act shall apply to any offence or contravention committed outside India by any person irrespective of his nationality. it is further provided that the Act shall apply to any offence or contravention committed outside lndia by any person if the act or conduct constituting the offence or contravention involves a computer, a computer system or computer network located in India. The word computer or computer system has been defined Uls 2 (i) which is ‘computer’ means any electronic, magnetic, optical or other high-speed dataprocessing device or system which performs logical, arithmetic and memory functions by manipulations of electronic, magnetic or optical impulses and includes all input, output, processing, storage, computer software or communication facilities which are connected or related to the computer in a computer system or computer network. The ‘computer network’ has after been defined which means the inter- connection of one or more computers or computer systems through the use of satellite, microwave, terrestrial line, wireless or other communication media; any terminals or a complex consisting of two or more inter-connected computers or communicated device whether or not the inter-connection is continuously maintained. Computer has also been defined which means a device or collection of devices, including input and output support devices and excluding calculators which are not programmable and capable of being used in conjunction with external files which contain computer programmes, etectronic instructions, input data and output data that performs logic, arithmetic, data storage and retrieval, communication control and other functions. Data has been defined Uls 2 (0) which means representation of information, knowledge facts, concepts or instructions which are being prepared or have been prepared in a formalized manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer. In nutshetl, the computer functions through electronic device consisting hardware and software through which a data could be processed, accessed, transmitted, used, stored etc. As per Rule 4 (b), the complaint can be made to the Adjudicating Officer of the State of Union Territory on the basis of location of computer system, computer network etc. This provision has to be read with Section 75(j) of the IT Act. in sub Section 2 of Section 75, the Act applies to an offence or contravention committed outside India by any person if the Act or conduct constituting the offence or contravention involves a computer I computer system or computer network located in India. Hence, I am of this considered opinion that in order to vest jurisdiction to the Adjudicating Officer it is necessary that the computer, computer system or computer network must be located within the territorial jurisdiction or the Adjudicating Officer and the said computer alleged. Even though the word ‘Involves’ as mentioned U/s Section 75 (2) is no where in the Act defined, applying the meaning as prevalent in common parlance it means involvement of the system in the commission of the offence /contravention by any mode. The involvement of the computer can be possible if the said computer or computer system is used for the purpose of transmitting, generating, accessing any data. Therefore, it is not the mere location of the computer which will determine the territorial jurisdiction but the computer system located within the territorial jurisdiction of the Adjudicating authority must be such computer system which is stated to have been ‘involved’ in committing the offence or contravention under the Information Technology Act. The Information Technology Act and the rules framed therein is a complete code itself and is not controlled or guided by the general and ordinary procedure i.e. Code of Civil Procedure which has been pressed by the counsels of both the parties. The provision under the Civil Procedure Code which governs the territorial jurisdiction cannot be made applicable to the proceedings under the information Technology Act conferred upon the Adjudicating Authority. The Adjudicating Authority has been conferred exclusive jurisdiction so far as the grant of compensation is concerned to the extent of Rs. 5 crores. As a matter of fact to that extent the jurisdiction of Civil Court has been expressly barred which is explicit from the bare reading of Section 46 (1A) of the Information Technology Act. The above said contention is further fortified by the proviso clause of sub- Section of (1A) of Section 46 which provides that in respect of the claim for injury or damage exceeding Rs. 5 crores, the jurisdiction shall vest with the competent Court i.e. ordinary Civil Court. Coming to the facts of the case, vide Para 40 of the complaint it is claimed by the complainant that since the registered office of the respondents employer is at Delhi and internet is available using computer I computer system network etc. and internet is available through various ISP and also that since the email identity of the respondent is accessible through internet at Delhi in the URL domain name I server of which the confidential information and trade secrets of the complainant company is accessible through computer at Delhi hence the Adjudicating Authority has territorial jurisdiction to try and entertain the present complaint. Having examined the Law as above stated, I am afraid that the contention of the complainant is wholty illogical, unfair and unreasonable and as such illegal. If the contention of the complainant is accepted, this will lead to absurdity. If this contention of the complainant is accepted then perhaps this will lead to anomaly in as much as a complainant will be at liberty to file complaint at any place even outside India. The avaiiability of the internet which can be accessed from any corner of the world cannot be the criteria to decide the territorial jurisdiction. Internet is merely a piatform where the various informations are placed I stored. However in order to access these infonnation available on the internet, a user needs a computer or computer system which involves two minimum things i.e. hardware and software put together as a device to access, download, transmit the data I information. it is only when such data is accessed, downloaded, transmitted or used through such system involving a hardware and software i.e. a computer that the data stated to have been used, accessed or downloaded etc. It is not the availability of the data which is the condition precedent to conferjurisdiction on the Adjudicating Authority. On the contrary it is the use of the said data by accessing, transmitting, downloading or so through a particular computer system that offence could be said to have been committed under the Information Technology Act. It is because of this reason the word ‘involvement’ has been deliberately and intentionally used by the legislature in sub-Section 2 of Section 75 of the Information Technology Act 2000. The word ‘involvement’ is not a loose word but a deliberate and intentional act on the part of the Parliament, with a view to bring certainty and clarity to decide the territorial jurisdiction. it is specific contention of the respondent that the jurisdiction, if any, arose only at Faridabad I Ballabhgarh in the State of Haryana where therespondent was appointed or residing during the relevant period when the offence/contravention alleged to have been committed by him. i have already rendered my opinion that as far as the jurisdiction is concerned the-Code of Civil Procedure has not been made applicable to the adjudicating proceedings under the information Technology Act. The contention of the respondent particularly Para ‘H’ of the preliminary submission of the reply appears to have been based upon the principle of Code of Civil Procedure which deals with the place of residence I place of working of the respondent or the place where the cause of action arose wholly or partly as the place of territorial jurisdiction. However, keeping in view the mandate of the Information Technology Act as enumerated herein above, in my considered opinion the Adjudicating Authority in Delhi cannot hav_e territorial jurisdiction to entertain and try the present petition. There is no such allegations at all in the complaint that the computer involved in the alleged theft I access of the data of the complainant was located within the territorial jurisdiction of Delhi during the relevant period of time. As a matter of fact, it is the admitted case of the parties that the respondent was posted at the office of the complainant company at Ballabhgarh (Haryana). He was also a resident of Haryana during,the relevant period. Admittedly even the complaint to the SSP was filed at Haryana complaining against the respondent of committing the offence U/s 406/420 IPC which is under investigation. Since the computer involved in the commission of the alleged offence! contravention waslis not located at the relevant time nor there is any such specific allegation in the complaint, the Adjudicating Authority in Delhi has no territorial jurisdiction. Since I have already returned my finding that no territorial jurisdiction accrues in Delhi, question of touching upon other issues on merit as to whether any prima facie case is made out or not does not arise. In view of the facts stated herein above, the law applicable and my definite finding, I therefore, dismiss this claim petition as withoutjurisdiction
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