MS SARITA SINGH versus M/S SHREE INFOSOFT PRIVATE LIMITED
[2022] 1 S.C.R. 1044, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
A
B
C
D
E
F
G
H
1044
SUPREME COURT REPORTS
[2022] 1 S.C.R.
[2022] 1 S.C.R. 1044
1044
MS SARITA SINGH
v.
M/S SHREE INFOSOFT PRIVATE LIMITED
(Civil Appeal No 346 of 2022)
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
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
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
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
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,
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.
A
B
C
D
E
F
G
H
1045
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 346 of
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,
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:
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).
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:
MS SARITA SINGH v. M/S SHREE INFOSOFT PRIVATE LIMITED
A
B
C
D
E
F
G
H
1046
SUPREME COURT REPORTS
[2022] 1 S.C.R.
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.”
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 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.
A
B
C
D
E
F
G
H
1047
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:
(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.
MS SARITA SINGH v. M/S SHREE INFOSOFT PRIVATE LIMITED
A
B
C
D
E
F
G
H
1048
SUPREME COURT REPORTS
[2022] 1 S.C.R.
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 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 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
1 (1997) 8 SCC 372
A
B
C
D
E
F
G
H
1049
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 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:
2 (1999) 4 SCC 659
3 (2015) 4 SCC 164
MS SARITA SINGH v. M/S SHREE INFOSOFT PRIVATE LIMITED
A
B
C
D
E
F
G
H
1050
SUPREME COURT REPORTS
[2022] 1 S.C.R.
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. 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

A
B
C
D
E
F
G
H
1051
not be tolerated by the legal system. Hence, the appellant shall be entitled
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.
Bibhuti Bhushan Bose
Appeal allowed.
(Assisted by : Shubhanshu Das, LCRA)
MS SARITA SINGH v. M/S SHREE INFOSOFT PRIVATE LIMITED