Bangalore District Court
M/S.Wipro Enterprises Pvt. Ltd vs Mr.Dipankar Dutta on 25 November, 2019
IN THE COURT OF THE XX ADDL. CITY CIVIL &
SESSIONS JUDGE(CCH-32), BANGALORE CITY
Dated this the 25th day of November 2019
Present:
Sri.Ningouda B.Patil, B.Sc., LL.M.,
XX Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.5838/2018
Plaintiff: M/s.Wipro Enterprises Pvt. Ltd.,
(A demerged entity of Wipro
Limited), A Company under the
Companies Act 1956, Having its
registered office at: C Block,
CCLG Division, Doddakannelli,
Sarjapur Road, Bengaluru-560 035.
Rep. By Mr.Binu G.John
General Manager-HR.
(By Sri.Keertikumar D.Naik,
Advocate.)
/VS/
Defendant: Mr.Dipankar Dutta,
S/o.Mr.Debabrata Dutta,
Aged about 46 years,
Residing at Flat No.4G/1, Block Q,
Krishnapur Main Road,
Kolkata-700 102.
(Ex-parte).
Date of Institution of the
suit: 09.08.2018
Nature of suit: Suit for recovery of
money.
Date of commencement of
recording of evidence: 24.01.2019
Date on which Judgment
pronounced: 25.11.2019
Total Duration: Years Months Days
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01 03 16
JU DG M E NT
Plaintiff instituted this suit for recovery of money
against the defendant.
2. The case of the plaintiff is that, she is a
registered company and is in the business of
manufacturing and sale of trade and commercial
lighting products, fast moving consumer goods etc..,
through her consumer care and lighting division.
3. Plaintiff-company pleaded that, during the
course of her business, she get employs persons for
different assignments; the business information is a
proprietary of plaintiff-company and requires to be
protected the confidentiality of the same; plaintiff-
company shares with these information with some core
employees who work for her and such employees agree
with her at the time of joining and the said information
will be kept confidential.
4. Plaintiff further pleaded that, defendant was
offered for an employment as 'ZONAL MANAGER" vide
letter of appointment dated 11-03-2010; plaintiff-
company as usual promoted defendant from the post
of zonal manager to sales controller as per letter dated
01-03-2017; additionally the salary and other
allowances of defendant were also enhanced
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O.S.No.5838/2018
periodically; defendant was in the charge of C & I
lighting business of plaintiff-company as sales
controller; the present work profile of defendant was
managing the plaintiff's C&I business in refurbishing
and industry division and was directly engaged in all
crucial sales of the commercial lighting products of
plaintiff-company; defendant was having depth
knowledge of all the products and proposed product
launches of the plaintiff; defendant as stated above
shall maintain confidentiality of the activities and in
particularly his work; defendant in this regard also on
1.10.2014 executed an agreement with specific clauses
in respect of non-disclosure, confidentiality, non-
compete, interest-policy and non-solicit and the said
agreement is called as "Wipro Enterprises Reward
Programme (WERP)"; defendant by executing the said
agreement agreed and undertook that he will not
induce or encourage any existing employee of the
plaintiff to sever their employment and become
associate with or perform services of any nature for
any third party for a period of eighteen months from
the date of agreement i.e, from 01-10-2014; the
defendant was also under an obligation of non-
disclosure of any trade secrets, information, customer,
price, strategy and etc.; the said things in fact, are the
proprietary of plaintiff-company; defendant shall not
use or attempt to use any such information in a
manner that could cause loss to the plaintiff-company;
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O.S.No.5838/2018
defendant undertook that he is liable to pay the loss if
he violated the terms and conditions of the said WERP
agreement.
5. Plaintiff-company further also pleaded that,
defendant 30-11-2017 terminated the contract with
her and joined her competitor company Panasonic
India Ltd, who also engaged in the similar business;
defendant soon after resigning, acted prejudicial to the
interest of the plaintiff; the actions of the defendant
were clear violations of agreement WERP; defendant
after resigning solicited and lured the employees of
plaintiff-company namely, Karthik Velu, Poornima.B
and Proneel Mukharjee and thereby clearly violated the
terms and agreements; apart from, it is utter shock to
plaintiff that defendant indulged and directly induced
the her employees to terminate their contract with her;
a whatsapp communication from defendant to one
employee Dhaval Vinod Chandra Ladva is an example
for the same; defendant still is in contact with some
employees of plaintiff-company; these actions of
defendant are malafide and violates the terms and
conditions of the agreement WERP; hence defendant is
liable for payment of compensation to the plaintiff-
company; an amount of Rs.24,52,977/-was paid to the
defendant during last twelve months; the conduct of
the defendant not only against the law of the land,
but also detrimental to the interest of plaintiff-
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company; hence for all the reasons stated above
defendant is liable to pay Rs.24,52,977/- to the
plaintiff-company; therefore plaintiff-company is before
this court with the suit.
6. Plaintiff-company furthermore also pleaded
that the cause of action for the suit lastly resulted on
4-1-2018 when defendant solicited and lured the
employees Kartik Velu and thereby violated the WERP
and continuing even today. Plaintiff-company also
pleaded that defendant entered the agreement with
plaintiff-company in Bangalore which is within the
jurisdiction of this court and hence this court is having
jurisdiction to entertain the suit.
7. This court issued summons to the defendant;
the said summons was served on defendant; but, it is
reported that defendant refused to receive the
summons; hence service of summons to defendant
held sufficient. Defendant not appeared before this
court on the day of appearance. Hence defendant
placed Ex.Parte. There after the matter was posted for
evidence.
8. Perused the plaint averments, documents
available on record and evidence led. Heard the
counsel appearing for plaintiff-firm.
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9. The points that which arose for my
consideration are:
i) Whether plaintiff-company proves
that defendant solicited and
induced the employees who quit
her company?
ii) Whether the plaintiff-company is
entitle for the recovery of suit
claimed amount?
iii) What order or decree?
10. My answers to the above point No.(i) and (ii)
are in negative and for point No.(iii) as per final order
passed, for the following
REASONINGS
11. Point No.(i): The grievance of the plaintiff
company is that, defendant being her EX-employee
acting with malafide intention and in pursuance of the
same he induced and solicited her working employees
to sever with her and thereby violated and breached the
terms and conditions of the agreement WREP and
hence he is liable to pay suit claimed amount which he
received as salary for twelve months before his
resignation.
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12. To substantiate the said facts, plaintiff-
company has to prove that, defendant solicited her
employees and thereby induced them to resign her
company and thereby violated the agreement WERP
dated 1.10.2014 and therefore, defendant is under
liability of repayment of a sum of Rs.24,52,977/-.
13. For the purpose of proving of the factual
aspect, plaintiff adduced oral evidence and also
produced documentary evidence. The General Manager-
HR-cum-authorised power of attorney holder of plaintiff
company examined as P.W.1 and he produced
documentary evidence which are marked at Ex.P.1 to
Ex.P.8(a).
14. Ex.P.1 is the letter of appointment dated
11.03.2010, Ex.P-2 is Joining report, Ex.P-3 is Increment
letter dated 17.3.2017, Ex.P-4 is WERP and agreement,
Ex.P-5 is statement of salary, Ex.P-6 certified copy of power
of attorney dated 2.12.2016, Ex.P.7 is power of attorney
dated 3.12.2018, Ex.P.8 is six e-mail conversations and
Ex.P.8(a) is the 65-B Certificate.
15. Plaintiff-company produced the documentary
evidence at Ex-P.1. The said documentary evidence is a
letter of appointment issued by the plaintiff company to
the defendant. The said documentary evidence discloses
that defendant accepted the proposal of his
appointment with plaintiff company and accordingly, he
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O.S.No.5838/2018
joined the plaintiff company as a Zonal Manager.
Documentary evidence at Ex.P.2 is a joining report of
defendant with plaintiff company. The said
documentary evidence discloses that, defendant joined
the plaintiff company as a Zonal Manager on 9,4,2010.
The documentary evidence at Ex.P.3 is a increment
letter dated 17.3.2017 issued by plaintiff company
granting increments to the defendant. The documentary
evidence at Ex.P.4 is an agreement in respect of WIPRO
Enterprises reward programme (WERP). The said
documentary evidence is a crucial document as the
entire matter in dispute between plaintiff company and
defendant revolves round the said document.
16. It is the case of the plaintiff company that in
the course of her business she had many proprietary
and confidential datas/materials including trade
secrets and her employees shall and should maintain
the said confidential datas or trade secrets. They shall
not share the said things with others particularly with
competitors of plaintiff company. Therefore, the
company made an arrangement that in furtherance of
maintaining the confidential datas and trade secrets,
her employees shall enter into an agreement called
Wipro Enterprises Reward Programme (WERP) and
agreement and thereby employees shall abide the terms
and conditions of said agreement. Accordingly, on
1.10.2014 defendant entered the WERP agreement with
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O.S.No.5838/2018
plaintiff company. Defendant was under the obligation
of abiding the terms and conditions of WERP
agreement. Clause 2 of said agreement provides non-
solicitation condition. The said clause reads as under:
"2. Non Solicitation:
a. During the Term of this agreement (period of
eighteen months from the date of severance of
employment), Grantee shall not, either directly or
indirectly solicit, induce or encourage any existing
employee of the Company to sever its employment
with the Company to become associated with or
perform services of any nature for any third party.
b. During the Term of this agreement, Grantee
shall not, either directly or indirectly solicit, induce or
encourage a customer or vendor of Company to sever
its relationship with the Company to move his
existing business with the Company to any other
party.
c. On breach of the covenant aforesaid,
Grantee shall be liable to pay to the Company an
amount equivalent to last twelve month's salary
received by him".
17. The main allegations of plaintiff company is
that, defendant not followed the non-solicitation clause
of WERP agreement dated 1.10.2014 and therefore, he
is liable to repay the salary and other allowances
received immediate previous one year of his severance
with plaintiff company. Plaintiff company made
allegations that defendant solicited her employees
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O.S.No.5838/2018
Karthik Velu, Poornima B. and Proneel Mukherjee and
because of solicitation and inducement of defendant the
above said employees quit their job from plaintiff
company.
18. Plaintiff company in order to substantiate the
the fact of solicitation and inducement by the defendant
to the above said her employees, produced
documentary evidence at Ex.P.8. The documentary
evidence at Ex.P.8 is having e-mail conversations. As
per the said documentary evidence, defendant
communicated the said Poornima on 18.9.2017 at
about 6.57 p.m., but the said conversation is in respect
of an advise relating to affairs of plaintiff company.
Further defendant communicated other employees on
15.9.2017, 27.7.2018, but the said communications are
not in respect of any inducement as alleged.
19. The documentary evidence at Ex.P.8 further
also discloses that the employee Poornima
communicated one Anuj on 6.12.2017 at 10.42 p.m.
and the employee Karthik Velu communicated the said
Anuj through e-mail on 4.1.2018 at 11.00 p.m. and
another employee Proneel Mukherjee communicated
the said Anuj on 16.1.2018 at 10.34 p.m. The said
Anuj happens to be incharge of plaintiff company.
These e-mail communications of Poornima B., Karthik
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Velu and Proneel Mukherjee are in respect of their
resignations to plaintiff company. Plaintiff alleged that
because of solicitation and inducement, the above said
employees quit the plaintiff company by resigning. The
above said e-mail communications in respect of
resignations not disclosing anything about defendant.
In other words the e-mail communications produced at
Ex.P.8 not disclosing that defendant solicited and
induced the above said employees to sever with the
plaintiff company.
20. Plaintiff company also pleaded that, the
whatsapp communication of defendant with Dhaval
Vinod Chandra Ladwa evidences that defendant
induced the employees of plaintiff company to sever
with her. But, plaintiff company not produced any
evidence or material in respect of the said whatsapp
communication. Thus, absolutely there is no any
evidence on record to show that defendant solicited and
induced the employees of plaintiff company to resign for
their posts and quit the plaintiff company. Therefore, it
cannot be stated that defendant solicited and induced
the employees who quit the plaintiff company. Hence,
my answer to point No.(i) is in Negative.
21. Point No.(ii): This court while answering
point No.(i) held that, defendant not induced or solicited
the employees who quit the plaintiff company.
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Therefore, defendant not violated the terms of WERP
agreement dated 1.10.2014 and hence, he is not liable
to repay the salary what he has received from plaintiff
company for last one year. Plaintiff without having
sufficient evidence filed this suit against defendant.
Hence, the claim of plaintiff is not acceptable and
admissible. Accordingly, my answer to point no.(ii) is
in Negative.
22. Point No.(iii): In view of above said
observations, I proceed to pass the following
ORDER
Suit of the plaintiff is hereby dismissed.
(Dictated to the Judgment Writer on computer, computerized by her, corrected and then pronounced by me in open court on the 25 th day of November, 2019.) (Ningouda B.Patil) XX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
13O.S.No.5838/2018 ANNEXURE List of witnesses examined for the Plaintiff:
PW.1 : Sri.Binu G.John. List of documents marked for the Plaintiff:
Ex.P.1 Letter of appointment dated 11.03.2010.
Ex.P.2 Joining Report.
Ex.P.3 Increment letter dated 17.3.2017. Ex.P.4 WERP and agreement. Ex.P.5 Statement of salary. Ex.P.6 Certified copy of power of attorney dated 2.12.2016.
Ex.P.7 Power of attorney dated 3.12.2018. Ex.P.8 Six e-mail conversations. Ex.P.8(a) 65-B Certificate.
List of Witnesses examined for the defendant:
Nil.
List of documents marked for the defendant:
Nil.
(Ningouda B.Patil) XX ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY. 14 O.S.No.5838/2018 Judgment pronounced in the open court(vide separate judgment).
ORDER [[ Suit of the plaintiff is hereby dismissed.
15 O.S.No.5838/2018 XX Addl. C.C & S.J, Bengaluru.
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