The bench of Justices DY Chandrachud and AS Bopanna was hearing an appeal arising from a judgment and order dated 1 August 2018 of a Single Judge of the High Court of Punjab & Haryana. The appellant was a software developer who joined the services of the respondent on 15 November 2012. The respondent was a company based in Gurgaon and engaged 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 rules 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: 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, visa fee and other associated expenses"
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. 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. 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.
In its order, the bench observed, "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...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-clause 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 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"
The bench further noted that the respondent as a claimant and plaintiff had to discharge the initial burden of establishing that the appellant was sent on deputation overseas, and that 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. The bench recorded that 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", said the bench.
It further discussed that Deputation has a definite connotation in law- "A two-judge Bench of this Court in State of Punjab v. Inder Singh 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"
The bench noted that 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 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. S N Maity interpreted the terms of deputation strictly and disavowed acts of caprice on part of the employer.
"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", ruled the bench.
For the above reasons, it allowed the appeal and set aside the impugned judgment of the High Court dated 1 August 2018, adding that, as a consequence, the suit for recovery which has been instituted by the respondent shall stand dismissed.
As regards the costs of Rs. 1 lakh which Court found the appellant to be entitled to the bench directed that the same shall be deposited in the Registry of the top court within a period of one month from the date of this order, and that the Registry shall disburse the amount to the appellant.
