1 Leave granted.
2 This appeal arises from a judgment and order dated 1 August 2018 of a
Single Judge of the High Court of Punjab & Haryana in RSA No 3369 of 2018
(O&M).
3 The appellant is a software developer who joined the services of the
respondent on 15 November 2012. The respondent is a company based in
Gurgaon and engages in the business of 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 15 November 2012. The conditions of employment included the
following stipulation:
“II (5) You are liable to be posted at any of the various
divisions of SHREE INFOSOFT PRIVATE LIMITED (the
Company)/ branches/subsidiaries/affiliates/associates/sister-
concerns either domestic or overseas, wherever it may be
situated. You will abide by the company's rule and
regulations as may be in effect from time to time with
respect to 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 of overseas deputation:
While on and or return to India from overseas deputation, it
is essential that you serve SHREE INFOSOFT PRIVATE LIMITED
for a period as stated under, as applicable:
Deputati Required months of
on service on and or
Period return from overseas
deputation as
applicable 0 days to 3 months from the date
31 days to 6 months from the date
More than 12 months from the date
In the event of any aberration in serving Company as
mentioned above, you are liable to repay the amount spent
by Company on your deputation covering the cost of travel, CA 346/2022
insurance premium, per diem, visa fee and other associated
expenses.”
4 The appellant was initially sent for a meeting to the US on 22 August 2013
for a period of one week. The appellant was provided with a ticket to
facilitate her travel. Other expenses incidental to the visit were borne by the
employer. The duration of the visit was subsequently extended till 20
September 2013. The appellant returned to India and reported for work on 21
September 2013. On her return, the appellant was appointed as a Senior
Project Manager on 27 September 2013 with a revised compensation
package of Rs 16 lakhs per annum.
5 Upon her return from the US, the appellant worked with the respondent from
21 September 2013 until 12 December 2013, for a period of eighty-two days.
Following a change in management, the appellant faced several issues in
regard to the treatment which was being meted out to her. By a letter dated
12 December 2013, the appellant resigned from service. On 14 December
2013, the appellant was informed that her resignation was accepted and that
the Human Resources department would facilitate the exit process. On 18
December 2013, the appellant addressed an email putting up her grievances
and to inquire whether further formalities would have to be completed. The
appellant was informed on 18 December 2013 by an email that her request
for being immediately relieved had been accepted by the Management.
6 On 22 May 2014, an advocate’s notice was issued to the appellant calling CA 346/2022
upon the appellant to pay an amount of Rs 5,70,753 together with interest at
the rate of 24% per annum from 12 December 2013, which included the
amount which was spent by the respondent on her “overseas deputation and
salary for the notice period”. The appellant responded by an advocate’s reply
on 3 June 2014.
7 The respondent instituted a suit in the court of the Civil Judge (Senior
Division), Gurgaon for the recovery of a sum of Rs 5,70,753 together with
interest at the rate of 24% per annum. The appellant contested the suit by
filing a written statement denying liability. On 9 August 2016, the Civil Judge
(Junior Division), Gurgaon decreed the suit partially in the amount of Rs
3,14,59 lakhs together with interest at the rate of 9% per annum from the
date the amount became due. This amount represented the expenses
undertaken by the respondent towards the travel and stay of the appellant to
the US. The judgment of the trial Judge was affirmed in appeal on 29
November 2017 by the Additional District Judge, Gurugram. The second
appeal before the High Court has been dismissed by the impugned judgment
and order.
8 We have heard Mr Sunil K Mukhi, counsel appearing on behalf of the
appellant and Mr Vineet Bhagat, counsel for the respondent.
9 The controversy in the present case turns upon the construction of clause
II(5) in the offer of appointment which formed the basis of the contract of
employment. The conditions of employment stipulate that: CA 346/2022
(i) The appellant was liable to be posted at “any of the various divisions”
of the respondent, namely, the company, its branches, subsidiaries,
affiliates, associates, sister concerns;
(ii) The posting may be either at a domestic location or overseas;
(iii) The appellant would have to abide by the rules and regulations of the
respondent with respect to her function, grade or location where she
works;
(iv) In the event of an “overseas deputation”, the appellant would upon
return to India have to serve for a period of three months where the
deputation was up to thirty days (with graded increases in the service
required on return corresponding to the period of deputation); and
(v) In the event of a shortfall, the appellant would have to pay for the
amounts spent by the company on the deputation, covering the cost of
travel, insurance premium, per diem, visa fees and other associated
expenses.
10 Clause II(5) indicates that the appellant was liable to be posted at any of the
branches, subsidiaries, affiliates, associates or sister concerns of the
respondent either in India or abroad. Sub-cluse 5 indicates that in the event
of an overseas deputation, she would have to serve for a minimum period.
For a deputation up to 30 days, the minimum service was three months; for
31 days to 90 days, six months; and for a period of more than 90 days, 12 CA 346/2022
months from the date of deputation/return. In the present case there was no
letter under which the appellant was posted overseas or indicating that she
was sent on deputation.
11 The respondent as a claimant and plaintiff had to discharge the initial burden
of establishing that the appellant was sent on deputation overseas.
Significantly, while the terms and conditions of employment have been
reduced to writing, there is no valid evidence on the basis of which it can be
deduced that the appellant was sent on deputation overseas. On the
contrary, it is the contention of the appellant that she was sent overseas for
a business meeting. It is true that the appellant was represented in the
proceedings in the suit by her spouse as the holder of a power of attorney.
That however did not obviate the legal requirement that the burden must be
discharged by the plaintiff of establishing its own case. There is no material
evidence on the record to indicate that the appellant was sent on deputation.
Deputation has a definite connotation in law. A two-judge Bench of this Court
in State of Punjab v. Inder Singh1 has clarified the concept of deputation
and stressed on the particular rights and liabilities that are associated with a
deputation, which occurs only with the consent of the employee. Justice D P
Wadhwa, speaking for the Court, held:
“18. The concept of “deputation” is well understood in
service law and has a recognised meaning. “Deputation” has
a different connotation in service law and the dictionary
meaning of the word “deputation” is of no help. In simple
words “deputation” means service outside the cadre or
CA 346/2022
outside the parent department. Deputation is deputing or
transferring an employee to a post outside his cadre,
that is to say, to another department on a temporary
basis. After the expiry period of deputation the
employee has to come back to his parent department
to occupy the same position unless in the meanwhile he
has earned promotion in his parent department as per the
Recruitment Rules. Whether the transfer is outside the
normal field of deployment or not is decided by the authority
who controls the service or post from which the employee is
transferred. There can be no deputation without the
consent of the person so deputed and he would,
therefore, know his rights and privileges in the
deputation post. The law on deputation and repatriation is
quite settled as we have also seen in various judgments
which we have referred to above…”
(emphasis supplied)
A deputation would also involve a third party - the borrowing employer who
discharges specific rights and obligations towards the employee and the
lending employer. A three-judge Bench of this Court in Umapati Choudhary
v. State of Bihar2 clarified the tripartite nature of a deputation in the
following terms:
“8. Deputation can be aptly described as an assignment of
an employee (commonly referred to as the deputationist) of
one department or cadre or even an organisation (commonly
referred to as the parent department or lending authority) to
another department or cadre or organisation (commonly
CA 346/2022
referred to as the borrowing authority). The necessity for
sending on deputation arises in public interest to meet the
exigencies of public service. The concept of deputation is
consensual and involves a voluntary decision of the
employer to lend the services of his employee and a
corresponding acceptance of such services by the borrowing
employer. It also involves the consent of the employee to go
on deputation or not. In the case at hand all the three
conditions were fulfilled…”
Further, a two-judge Bench of this Court in Union of India v. S N Maity3
interpreted the terms of deputation strictly and disavowed acts of caprice on
part of the employer. Justice Dipak Misra (as the learned Chief Justice then
was) noted:
15. The controversy that has emerged in the instant case is
to be decided on the touchstone of the aforesaid principles of
law. We have already opined that it is not a case of simple
transfer. It is not a situation where one can say that it is a
transfer on deputation as against an equivalent post from
one cadre to another or one department to another. It is not
a deputation from a government department to a
government corporation or one Government to the other.
There is no cavil over the fact that the post falls in a different
category and the first respondent had gone through the
whole gamut of selection. On a studied scrutiny, the
notification of appointment makes it absolutely clear
that it is a tenure posting and the fixed tenure is five
years unless it is curtailed. But… this curtailment
cannot be done in an arbitrary or capricious manner.
CA 346/2022
There has to have some rationale. Merely because the
words “until further orders” are used, it would not
confer allowance on the employer to act with caprice.”
(emphasis supplied)
Thus, a deputation involves a tripartite consensual agreement between the
lending employer, 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 terms of deputation
will not qualify as a deputation unless the respondent were to lead cogent
evidence to indicate that the appellant was seconded to work overseas on
deputation. This aspect of the case has completely been ignored by all the
three courts below. The claim was not substantiated having regard to the
plain terms of the contract.
12 For the above reasons, we allow the appeal and set aside the impugned
judgment of the High Court dated 1 August 2018 in RSA No 3369 of 2018
(O&M). As a consequence, the suit for recovery which has been instituted by
the respondent shall stand dismissed.
13 The appellant has been subjected to needless harassment and drawn into a
vortex of litigation. She had concerns about the conditions at the workplace.
When she complained and resigned, she has been met with a reprisal of
being embroiled in a suit for recovery. Courts must send a strong message
that such things shall not come to pass and will not be tolerated by the legal
system. Hence, the appellant shall be entitled to the costs of the litigation CA 346/2022
quantified in the amount of Rs 1 lakh which shall be deposited in the Registry
of this court within a period of one month from the date of this order. The
Registry shall disburse the amount to the appellant.
14 Pending applications, if any, stand disposed of.
[Dr Dhananjaya Y Chandrachud]
[A S Bopanna]
New Delhi; January 12, 2022 CKB CA 346/2022
ITEM NO.25 Court 4 (Video Conferencing) SECTION IV-B
Petition(s) for Special Leave to Appeal (C) No.32174/2018
(Arising out of impugned final judgment and order dated 01-08-2018 in RSA No.3369/2018 passed by the High Court of Punjab & Haryana at Chandigarh)
SARITA SINGH Petitioner(s)
VERSUS
M/S SHREE INFOSOFT PRIVATE LIMITED Respondent(s)
Date : 12-01-2022 This petition was called on for hearing today.
CORAM : HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE A.S. BOPANNA
For Petitioner(s) Mr. Sunil K Mukhi, Adv.
Mr. T.S. Narwal, Adv.
Mr. Dushyant Tiwari, Adv.
Mr. Anish R. Shah, AOR
For Respondent(s) Mr. Vineet Bhagat, AOR
Mr. K.G. Bhagat, Adv.
Ms. Manju Bhagat, Adv.
Ms. Archna Midha, Adv.
Mr. Mohit Gulati, Adv.
UPON hearing the counsel the Court made the following
1 Leave granted. CA 346/2022
2 The appeal is allowed in terms of the signed reportable order.
3 Pending applications, if any, stand disposed of.
(CHETAN KUMAR) (SAROJ KUMARI GAUR) A.R.-cum-P.S. COURT MASTER (Signed reportable order is placed on the file)