MS SARITA SINGHversusM/S SHREE INFOSOFT PRIVATE LIMITED

1044            SUPREME COURT
                          [2022]REPORTS
                                 1 S.C.R. 1044              [2022] 1 S.C.R.


 A                             MS SARITA SINGH
                                         v.
                  M/S SHREE INFOSOFT PRIVATE LIMITED
                           (Civil Appeal No 346 of 2022)
 B                             JANUARY 12, 2022
               [DR. DHANANJAYA Y CHANDRACHUD AND
                         A. S. BOPANNA, JJ.]
              Service Law – Deputation – Appellant, a software developer,
       was employee of the company based in Gurgaon – Terms of
 C
       employment included that in case of any aberration appellant was
       liable to repay the amount spent by company on her deputation –
       Appellant was sent to U.S. for a meeting – Upon her return, appellant
       faced several issues with management and she resigned – Legal
       notice was issued to appellant to repay amount spent by the
 D     respondent on her overseas deputation and salary for the notice
       period – Respondent instituted suit for recovery – Trial Court decreed
       the suit partially – First appellate Court affirmed the judgment and
       second appeal dismissed by High Court – On appeal, held: Central
       question was of the interpretation of the word ‘deputation’ – No
       material evidence on record to indicate that appellant was sent on
 E
       deputation – 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
 F     deputation, this aspect has completely been ignored by all the three
       courts below – Impugned judgment of High Court set aside – As a
       consequence, the suit for recovery instituted by the respondent shall
       stand dismissed – Appellant was subjected to needless harassment
       and drawn into a vortex of litigation – She had concerns about
       conditions at the workplace – When she complained and resigned,
 G
       she 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,
       appellant entitled to costs of the litigation quantified in the amount
       of Rs 1 lakh.
 H
                                       1044
 MS SARITA SINGH v. M/S SHREE INFOSOFT PRIVATE LIMITED                        1045


        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 346 of                 A
2022.
      From the Judgment and Order dated 01.08.2018 of the High Court
of Punjab and Haryana at Chandigarh in RSA No. 3369 of 2018.
      Sunil K Mukhi, T.S. Narwal, Dushyant Tiwari, Anish R. Shah,
                                                                              B
Advs. for the Appellant.
     Vineet Bhagat, K.G. Bhagat, Ms. Manju Bhagat, Ms. Archna
Midha, Mohit Gulati, Advs. for the Respondent.
        The following Order of the Court was passed:
                                                                              C
                                ORDER
        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).                                                        D

        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          E
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         F
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          G
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:
                                                                              H
1046            SUPREME COURT REPORTS                          [2022] 1 S.C.R.


 A




 B

              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, insurance premium, per diem,
 C     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
 D     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
 E     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
 F     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.
 G           6. On 22 May 2014, an advocate’s notice was issued to the
       appellant calling 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.
 H
 MS SARITA SINGH v. M/S SHREE INFOSOFT PRIVATE LIMITED                        1047


       7. The respondent instituted a suit in the court of the Civil Judge    A
(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
                                                                              B
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.                            C

      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     D
of clause II(5) in the offer of appointment which formed the basis of the
contract of employment. The conditions of employment stipulate that:
      (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          E
              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,
                                                                              F
              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              G
              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.                        H
1048                SUPREME COURT REPORTS                        [2022] 1 S.C.R.


 A            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;
 B
       and for a period of more than 90 days, 12 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.

 C             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
 D     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
 E     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:
 F
                “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 outside the parent department.
 G
                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

       1
 H         (1997) 8 SCC 372
    MS SARITA SINGH v. M/S SHREE INFOSOFT PRIVATE LIMITED                      1049


         to occupy the same position unless in the meanwhile he has            A
         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
                                                                               B
         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)     C
       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:                                        D
         “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 referred to as          E
         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          F
         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            G
acts of caprice on part of the employer. Justice Dipak Misra (as the
learned Chief Justice then was) noted:

2
    (1999) 4 SCC 659
3
    (2015) 4 SCC 164                                                           H
1050            SUPREME COURT REPORTS                           [2022] 1 S.C.R.


 A           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
 B
             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
 C           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. There has to have some
             rationale. Merely because the words “until further orders”
             are used, it would not confer allowance on the employer to
 D           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
 E
       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
 F     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.
 G
              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
 H
 MS SARITA SINGH v. M/S SHREE INFOSOFT PRIVATE LIMITED                          1051


not be tolerated by the legal system. Hence, the appellant shall be entitled    A
to the costs of the litigation 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.                     B


Bibhuti Bhushan Bose                                          Appeal allowed.
(Assisted by : Shubhanshu Das, LCRA)


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