Transient business visit without written agreement detailing terms of deputation will not qualify as deputation unless evidence indicates that employee was seconded to work overseas by employer: SC

Read Order: Sarita Singh vs. Shree Infosoft Private Limited 

Pankaj Bajpai

New Delhi, January 25, 2022: The Supreme Court recently opined that transient business visit without any written agreement detailing terms of deputation will not qualify as a deputation unless the employer (Shree Infosoft Pvt Ltd – Respondent) were to lead cogent evidence to indicate that the employee (Sarita Singh – Appellant) was seconded to work overseas on deputation.

A Division Bench of Justice Dr. D.Y Chandrachud and Justice A.S Bopanna observed that a deputation involves a tripartite consensual agreement between the lending employer, borrowing employer and the employee, and the specific rights and obligations would bind the parties and govern their conduct.

Deputation has a definite connotation in law, added the Bench. 

The background of this case is that the appellant is a software developer who joined the services of the respondent company based in Gurgaon in the year 2012. The appellant was initially sent for a meeting to the US on August 22, 2013 for a period of one week and was provided with a ticket to facilitate her travel along with other incidental expenses. The duration of the visit was subsequently extended and thereafter the appellant returned to India and reported for work on September 21, 2013. On her return, the appellant was appointed as a Senior Project Manager with a revised compensation package, and upon her return, the appellant worked with the respondent 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. Hence, she resigned from service. Although her resignation was accepted, she was sent advocate’s notice calling upon her to pay an amount of Rs.5,70,753/- together with interest at the rate of 24% per annum, which included the amount which was spent by the respondent on her “overseas deputation and salary for the notice period”. 

Later, the respondent instituted a suit in the court of the Civil Judge for the recovery of a sum of Rs.5,70,753 together with interest. The Civil Judge 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, which 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 by the Additional District Judge as well as the High Court. Hence, the present appeal. 

After considering the submissions, the Top Court observed that 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 had been reduced to writing, there was no valid evidence on the basis of which it could be deduced that the appellant was sent on deputation overseas, added the Court. 

On the contrary, the Apex Court highlighted that it is the contention of the appellant that she was sent overseas for a business meeting. 

The Apex Court accepted that the appellant was represented in the proceedings in the suit by her spouse as the holder of a power of attorney.

However, that did not obviate the legal requirement that the burden must be discharged by the plaintiff of establishing its own case, and there was no material evidence on the record to indicate that the appellant was sent on deputation, added the Court.

Since the claim was not substantiated having regard to the plain terms of the contract, the Top Court dismissed the suit for recovery which had been instituted by the respondent. 

The Bench, however, concluded the matter by stating that the appellant had 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 was 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. 

Keeping these facets into consideration, the Court held the appellant to be entitled to the costs of the litigation quantified in the amount of Rs 1 lakh which was directed to be deposited in the Registry of this court within a period of one month and the Registry would then disburse the amount to the appellant.