Further, the Court said the Appellant had been the victim of “unnecessary harassment and embroiled in a whirlwind of litigation”, that “she was concerned about working conditions and when she complained and quit, she suffered retaliation from being embroiled in a recovery suit.” “The courts need to send a strong message that such things will not happen and will not be tolerated by the legal system. Therefore, the Appellant will be entitled to the costs of the litigation quantified in the amount of Rs 1 lakh”, the Court ordered.
The bench of Judges DY Chandrachud and AS Bopanna was hearing an appeal arising from a Judgment and Order dated August 1, 2018 of a Single Judge of the High Court of Punjab and Haryana. The Appellant was a software developer who joined the services of the Respondent on November 15, 2012. The Respondent was a Gurgaon-based company engaged in software development. As a software developer, the appellant was employed on an annual package of Rs 13,50,400. The terms of employment were contained in a letter of offer dated November 15, 2012. The terms of employment included the following stipulation:
“II (5) You may be assigned to one of the various divisions of SHREE INFOSOFT PRIVATE LIMITED (the Company)/branches/subsidiaries/affiliates/associates/sisters – domestic or foreign companies, wherever located. You will comply with company rules and regulations as they may be in effect from time to time relating to your position, rank or location. Please note that instead of clauses 3 and 4 of Section II of the ‘Terms and Conditions’ of Annex B, you are required to comply with the following in the event of deputation abroad:
During your stay and/or return to India from overseas assignment, it is essential that you serve SHREE INFOSOFT PRIVATE LIMITED for a period as stated below, as applicable: In case of aberration in the service of society as mentioned above, you are required to reimburse the amount spent by the Society for your deputation covering travel expenses, insurance premium, per diem, visa fees and other related expenses”
The applicant was first sent for a meeting in the United States on August 22, 2013 for a period of one week. The Appellant received a ticket to facilitate her trip. Other expenses incidental to the visit were borne by the employer. The duration of the visit was later extended to 20 September 2013. The Applicant returned to India and reported for work on 21 September 2013. Upon her return, the Applicant was appointed Senior Project Manager on 27 September 2013 with a revised remuneration of Rs 16 lakhs per annum. Upon her return from the United States, the Applicant worked with the Respondent from September 21, 2013 to December 12, 2013, for a period of eighty-two days. Following a change in management, the Appellant faced several issues regarding her treatment. By letter of 12 December 2013, the applicant resigned from his duties. On 14 December 2013, the Applicant was informed that her resignation had been accepted and that the Human Resources department would facilitate the departure process. On December 18, 2013, the applicant sent an e-mail setting out her complaints and asking whether any other formalities needed to be completed. The applicant was informed on 18 December 2013 by e-mail that her request for immediate relief had been accepted by the Management. On May 22, 2014, a solicitor’s opinion was issued to the Appellant requesting him to pay an amount of Rs 5,70,753 plus interest at the rate of 24% per annum from December 12, 2013, which included the amount expended by the respondent on her “overseas deputation and salary for the notice period”. The Appellant responded with a lawyer’s reply on June 3, 2014.
The Respondent filed an action in the Civil Judge Court (Senior Division), Gurgaon for the recovery of a sum of Rs 5,70,753 with interest at the rate of 24% per annum. The appellant contested the lawsuit by filing a written statement denying liability. On August 9, 2016, the Civil Judge (Junior Division) of Gurgaon decreed the lawsuit in part for an amount of Rs 3,14,59 lakhs with interest at the rate of 9% per annum from the date on which the amount has become due. This amount represented the expenses incurred by the respondent for the appellant’s travel and stay in the United States. The judgment of the trial judge was affirmed on appeal on November 29, 2017 by the additional district judge, Gurugram. The second appeal to the High Court was dismissed by the impugned judgment and order.
During the hearing, the bench exclaimed that the appellant had been “hunted”.
In its order, the panel observed that “the controversy in this case concerns the interpretation of clause II(5) of the offer of employment which formed the basis of the contract of employment… Clause II( 5) indicates that the appellant was likely to be assigned to any of the branches, subsidiaries, affiliates, associates or sister companies of the respondent either in India or abroad. indicates that in case of deputation abroad, it should serve for a For a deputation up to 30 days, the minimum service was three months; from 31 days to 90 days, six months; and for a period of more than 90 days, of 12 months from the date of detachment/return. in this case, there was no letter under which the Appellant was posted overseas or indicating that she was being sent overseas. deputation”
The bench further noted that the respondent, as plaintiff and plaintiff, had to meet the initial burden of establishing that the appellant had been sent for deputation abroad and that, significantly, although that the conditions of employment were reduced to writing, there is no evidence on the basis of which it can be inferred that the appellant was sent on deputation overseas. The bench recorded that On the contrary, it is the appellant’s assertion that she was sent abroad for a business meeting. “It is true that the applicant was represented in the legal proceedings by her spouse as a holder of a power of attorney. This, however, did not remove the legal requirement that the applicant must discharge the burden of establish his own case. There is no physical evidence on the record indicating that the appellant was sent for deputation,” the seat said.
He further discussed that deputation has a definite connotation in law – “A two-judge bench of this Court in State of Punjab v. Inder Singh clarified the concept of deputation and highlighted the particular rights and responsibilities associated with a deputation, which takes place only with the consent of the employee”
The bench noted that the delegation would also involve a third party – the borrowing employer who discharges specific rights and obligations to the employee and the lending employer – “A three-judge bench of this Court in Umapati Choudhary v .State of Bihar clarified the tripartite nature of a deputation…”
Further, the bench recorded that a two-judge bench of this Court in Union of India v. SN Maity interpreted the terms of the delegation strictly and disavowed acts of whim on the part of the employer.
“Thus, a delegation implies a tripartite consensual agreement between the lending employer, the borrowing employer and the employee. Specific rights and obligations would bind the parties and govern their conduct. A transient business visit without any written agreement detailing the conditions of delegation will not be considered a deputation unless the respondent produces compelling evidence that the appellant was seconded to work overseas as a deputation.This aspect of the case has been completely ignored by the three lower courts. The claim was not substantiated given the clear terms of the contract,” the bench ruled.
For the above reasons, it allowed the appeal and quashed the impugned judgment of the High Court of 1 August 2018, adding that accordingly the action for recovery brought by the respondent will be dismissed.
Regarding the costs of Rs. 1 lakh which the Court held that the Appellant was entitled to the bench ordered that it be filed in the High Court Registry within one month from the date of this order, and that the court pay the amount to the appellant.
