MS SARITA SINGH versus M/S SHREE INFOSOFT PRIVATE LIMITED on 12 January 2022

ORDER

1. Leave granted.

2. This appeal arises from a judgment and order dated 1 August2018 of a Single Judge of the High Court of Punjab & Haryana in RSANo 3369 of 2018 (O&M).

3. The appellant is a software developer who joined the servicesof the respondent on 15 November 2012. The respondent is a companybased in Gurgaon and engages in the business of software development.As a software developer, the appellant was employed on an annualpackage of Rs 13,50,400. The terms of employment were contained in aletter of offer dated 15 November 2012. The conditions of employmentincluded the following stipulation:

“II (5) You are liable to be posted at any of the various divisionsof SHREE INFOSOFT PRIVATE LIMITED (the Company)/ branches/subsidiaries/affiliates/associates/sister-concerns either domestic oroverseas, wherever it may be situated. You will abide by the company’srule and regulations as may be in effect from time to time with respectto your function, grade or location where you work in. Please note that,in lieu of clause 3 & 4 of Section II of the ‘Other Terms and Conditions’of Annexure B, you are required to abide by the following in case ofoverseas deputation:

While on and or return to India from overseas deputation, it isessential that you serve SHREE INFOSOFT PRIVATE LIMITED fora period as stated under, as applicable:

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In the event of any aberration in serving Company as mentionedabove, you are liable to repay the amount spent by Company on yourdeputation covering the cost of travel, insurance premium, per diem,Cvisa fee and other associated expenses.”

4. The appellant was initially sent for a meeting to the US on 22August 2013 for a period of one week. The appellant was provided witha ticket to facilitate her travel. Other expenses incidental to the visitwere borne by the employer. The duration of the visit was subsequentlyDextended till 20 September 2013. The appellant returned to India andreported for work on 21 September 2013. On her return, the appellantwas appointed as a Senior Project Manager on 27 September 2013 witha revised compensation package of Rs 16 lakhs per annum.

5. Upon her return from the US, the appellant worked with theErespondent from 21 September 2013 until 12 December 2013, for a periodof eighty-two days. Following a change in management, the appellantfaced several issues in regard to the treatment which was being metedout to her. By a letter dated 12 December 2013, the appellant resignedfrom service. On 14 December 2013, the appellant was informed thather resignation was accepted and that the Human Resources departmentFwould facilitate the exit process. On 18 December 2013, the appellantaddressed an email putting up her grievances and to inquire whetherfurther formalities would have to be completed. The appellant wasinformed on 18 December 2013 by an email that her request for beingimmediately relieved had been accepted by the Management.G6. On 22 May 2014, an advocate’s notice was issued to the G6. On 22 May 2014, an advocate’s notice was issued to theappellant calling upon the appellant to pay an amount of Rs 5,70,753together with interest at the rate of 24% per annum from 12 December2013, which included the amount which was spent by the respondent onher “overseas deputation and salary for the notice period”. The appellantresponded by an advocate’s reply on 3 June 2014.H

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7. The respondent instituted a suit in the court of the Civil Judge(Senior Division), Gurgaon for the recovery of a sum of Rs 5,70,753together with interest at the rate of 24% per annum. The appellantcontested the suit by filing a written statement denying liability. On 9August 2016, the Civil Judge (Junior Division), Gurgaon decreed the suitpartially in the amount of Rs 3,14,59 lakhs together with interest at therate of 9% per annum from the date the amount became due. Thisamount represented the expenses undertaken by the respondent towardsthe travel and stay of the appellant to the US. The judgment of the trialJudge was affirmed in appeal on 29 November 2017 by the AdditionalDistrict Judge, Gurugram. The second appeal before the High Court hasbeen dismissed by the impugned judgment and order.

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8. We have heard Mr Sunil K Mukhi, counsel appearing onbehalf of the appellant and Mr Vineet Bhagat, counsel for therespondent.

9. The controversy in the present case turns upon the constructionof clause II(5) in the offer of appointment which formed the basis of thecontract of employment. The conditions of employment stipulate that:

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(i) The appellant was liable to be posted at “any of the variousdivisions” of the respondent, namely, the company, itsbranches, subsidiaries, affiliates, associates, sisterconcerns; E

(ii) The posting may be either at a domestic location or overseas;

(iii) The appellant would have to abide by the rules andregulations of the respondent with respect to her function,Fgrade or location where she works;

(iv) In the event of an “overseas deputation”, the appellant wouldupon return to India have to serve for a period of threemonths where the deputation was up to thirty days (withgraded increases in the service required on returnGcorresponding to the period of deputation); and

(v) In the event of a shortfall, the appellant would have to payfor the amounts spent by the company on the deputation,covering the cost of travel, insurance premium, per diem,visa fees and other associated expenses.

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A10. Clause II(5) indicates that the appellant was liable to beposted at any of the branches, subsidiaries, affiliates, associates orsister concerns of the respondent either in India or abroad. Sub-cluse5 indicates that in the event of an overseas deputation, she would haveto serve for a minimum period. For a deputation up to 30 days, theminimum service was three months; for 31 days to 90 days, six months;Band for a period of more than 90 days, 12 months from the date ofdeputation/return. In the present case there was no letter under whichthe appellant was posted overseas or indicating that she was sent ondeputation.C11. The respondent as a claimant and plaintiff had to dischargethe initial burden of establishing that the appellant was sent on deputationoverseas. Significantly, while the terms and conditions of employmenthave been reduced to writing, there is no valid evidence on the basis ofwhich it can be deduced that the appellant was sent on deputationoverseas. On the contrary, it is the contention of the appellant that sheDwas sent overseas for a business meeting. It is true that the appellantwas represented in the proceedings in the suit by her spouse as theholder of a power of attorney. That however did not obviate the legalrequirement that the burden must be discharged by the plaintiff ofestablishing its own case. There is no material evidence on the record toEindicate that the appellant was sent on deputation. Deputation has adefinite connotation in law. A two-judge Bench of this Court in State ofPunjab v. Inder Singh[1 ]has clarified the concept of deputation andstressed on the particular rights and liabilities that are associated with adeputation, which occurs only with the consent of the employee. JusticeD P Wadhwa, speaking for the Court, held:F

“18. The concept of “deputation” is well understood in servicelaw and has a recognised meaning. “Deputation” has a differentconnotation in service law and the dictionary meaning of the word“deputation” is of no help. In simple words “deputation” meansservice outside the cadre or outside the parent department.GDeputation is deputing or transferring an employee to apost outside his cadre, that is to say, to another departmenton a temporary basis. After the expiry period of deputationthe employee has to come back to his parent department to occupy the same position unless in the meanwhile he hasearned promotion in his parent department as per the RecruitmentRules. Whether the transfer is outside the normal field ofdeployment or not is decided by the authority who controls theservice or post from which the employee is transferred. Therecan be no deputation without the consent of the person sodeputed and he would, therefore, know his rights andprivileges in the deputation post. The law on deputation andrepatriation is quite settled as we have also seen in variousjudgments which we have referred to above…”

(emphasis supplied)

A deputation would also involve a third party - the borrowingemployer who discharges specific rights and obligations towards theemployee and the lending employer. A three-judge Bench of this Courtin Umapati Choudhary v. State of Bihar[2 ]clarified the tripartite natureof a deputation in the following terms:

“8. Deputation can be aptly described as an assignment of anemployee (commonly referred to as the deputationist) of onedepartment or cadre or even an organisation (commonly referredto as the parent department or lending authority) to anotherdepartment or cadre or organisation (commonly referred to asthe borrowing authority). The necessity for sending on deputationarises in public interest to meet the exigencies of public service.The concept of deputation is consensual and involves a voluntarydecision of the employer to lend the services of his employee anda corresponding acceptance of such services by the borrowingemployer. It also involves the consent of the employee to go ondeputation or not. In the case at hand all the three conditionswere fulfilled…”

Further, a two-judge Bench of this Court in Union of India v. SN Maity[3 ]interpreted the terms of deputation strictly and disavowedacts of caprice on part of the employer. Justice Dipak Misra (as thelearned Chief Justice then was) noted:

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3 (2015) 4 SCC 164

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A15. The controversy that has emerged in the instant case is to bedecided on the touchstone of the aforesaid principles of law. Wehave already opined that it is not a case of simple transfer. It isnot a situation where one can say that it is a transfer on deputationas against an equivalent post from one cadre to another or onedepartment to another. It is not a deputation from a governmentBdepartment to a government corporation or one Government tothe other. There is no cavil over the fact that the post falls in adifferent category and the first respondent had gone through thewhole gamut of selection. On a studied scrutiny, thenotification of appointment makes it absolutely clear that itCis a tenure posting and the fixed tenure is five years unlessit is curtailed. But… this curtailment cannot be done in anarbitrary or capricious manner. There has to have somerationale. Merely because the words “until further orders”are used, it would not confer allowance on the employer toDact with caprice.”

(emphasis supplied)

Thus, a deputation involves a tripartite consensual agreementbetween the lending employer, borrowing employer and the employee.Specific rights and obligations would bind the parties and govern theirEconduct. A transient business visit without any written agreement detailingterms of deputation will not qualify as a deputation unless the respondentwere to lead cogent evidence to indicate that the appellant was secondedto work overseas on deputation. This aspect of the case has completelybeen ignored by all the three courts below. The claim was notFsubstantiated having regard to the plain terms of the contract.

12. For the above reasons, we allow the appeal and set aside theimpugned judgment of the High Court dated 1 August 2018 in RSA No3369 of 2018 (O&M). As a consequence, the suit for recovery whichhas been instituted by the respondent shall stand dismissed.G

13. The appellant has been subjected to needless harassment anddrawn into a vortex of litigation. She had concerns about the conditionsat the workplace. When she complained and resigned, she has been metwith a reprisal of being embroiled in a suit for recovery. Courts mustsend a strong message that such things shall not come to pass and will H

MS SARITA SINGH v. M/S SHREE INFOSOFT PRIVATE LIMITED

not be tolerated by the legal system. Hence, the appellant shall be entitledto the costs of the litigation quantified in the amount of Rs 1 lakh whichshall be deposited in the Registry of this court within a period of onemonth from the date of this order. The Registry shall disburse the amountto the appellant.

14. Pending applications, if any, stand disposed of.

Bibhuti Bhushan Bose

Appeal allowed.

(Assisted by : Shubhanshu Das, LCRA)

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