TaxTMI 
TaxTMI 
TaxTMI 
2013 (4) TMI 334
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....broadcasts and operates a 24 hour Hindi news channel by the name INDIA TV which recruits a large number of producers, anchors, reporters, technical personnel, editors, journalists etc. and spends aggressive amounts of monies on promoting the image, persona and personality of the Presenter and the same is categorized as „BRAND BUILDING EXPENSE‟. 3. Mr. Anuraag Muskaan, respondent in the matter was recruited by INDIA TV. He joined INDIA TV on 16th January, 2012 as a Presenter. He entered into an agreement with the petitioner on the same date. His professional fee was fixed at Rs. 95,833/- per month. The term of the agreement dated 16th January, 2012 was for two years effective from the date of telecast of the 1st show on the channel and renewable in writing with the mutual consent of the parties. He was required to perform his services from various offices of the petitioner throughout India including New Delhi and NCR. 4. After executing the agreement, he was involved in various programmes of INDIA TV including - Breaking News News specials like Super Fast 200, Top 20 Reporter, Non-Stop Super Fast, Newsline, Chak De Cricket etc. These bulletins and programmes are air....
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....s and conditions stipulated in this agreement, the petitioner company will be entitled to obtain an injunction restraining the Presenter from engaging in such conduct and further also claim and obtain damages for breach of this agreement. Broadly, a perusal of the contract reveals that the respondent is not entitled to, during the term of the contract i.e. till 16th January, 2014 engage or be engaged by any other competitive television channel. 7. When the petition was listed first time, this court issued short date notice was to the respondent who upon service filed his short reply in which it was admitted by him that he is now working with India News as a Senior Special Correspondent with effect from 16th February, 2013. He did not deny about the entering of agreement between him and the petitioner. It is admitted by him that after resignation he joined new channel and performing the same services. According to him the prayer made in the petition has become infructuous in view of averments made in the short reply. It is alleged by him that the petitioner being fully aware of the fact that the respondent is now employed with India News on the date of filing of petition who has in....
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....titled to join any service with any channel. 10. Mr. Singh‟s second submission is that it was a determinable contract between the parties within the meaning of Section 14 of the Specific Relief Act, 1963, thus petitioner is not entitled to the relief claimed, i.e. not to engage or provide services to any other television channel, under Section 41 of the Specific Relief Act. If the petitioner has any grievance against the respondent, its only remedy lies to claim compensation under the Contract Act. Therefore, the petitioner is otherwise not entitled to any relief. Even otherwise, the petitioner is not entitled to the relief as the petitioner has not come before this Court with clean hands. Learned Senior counsel has relied upon the decision of the Supreme Court in Superintendence Company of India (P) Ltd. vs. Sh.Krishnan Murgal reported in (1981) 2 SCC 246 held as follows:- ".....employee-covenants should be carefully scrutinized because there is inequality of bargaining power between the parties; indeed no bargaining power may occur because the employee is presented with a standard form of contract to accept or reject." It was further held that:- "...the Courts, therefo....
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....l or the Programme. The Company is fully entitled to use the Presenter‟s image, voice and other personal attributes for the promotion of the programmes on India TV, any other channel of the Company and/or in the print/electronic media. Term The term of this contract is two years effective from the date of telecast of the 1st show on the channel and renewable in writing with the mutual consent of the parties." 13. Ms.Pratibha M. Singh, Advocate appearing on behalf of the petitioner countered the arguments of the respondent. She has also referred various clauses of the agreement and e-mails exchanged between the parties before resignation of his service. She argued that in the present case the contract containing the negative covenants is completely enforceable in law. The contractual period has not expired. The negative covenants fully operate during the term of the contract and for one year thereafter. The respondent is not entitled to terminate the contract. The respondent has merely sent his e-mail dated 8th February, 2013 to leave the job with the petitioner in the middle of its term. 14. Her second submission is that in the present case, the conduct of the respondent ....
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....Court, the Hon‟ble Judge has discussed almost all the relevant decisions in great detail. After reviewing the decisions of Supreme Court and the High Courts including this Court, the Hon‟ble Judge has culled out the following points with regard the courts‟ power to grant an injunction in the case of a negative covenant. The same are : "i) Negative covenants tied up with positive covenants during the subsistence of a contact be it of employment, partnership, commerce, agency or the like, would not normally be regarded as being in restraint of trade, business of profession unless the same are unconscionable or wholly one-sided; ii) Negative covenants between employer and employee contracts pertaining to the period post termination and restricting an employee's right to seek employment and/or to do business in the same field as the employer would be in restraint of trade and, Therefore, a stipulation to this effect in the contract would be void. In other words, no employee can be confronted with the situation where he has to either work for the present employer or be forced to idleness; iii) While construing a restrictive or negative covenant and for determining w....
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....xception with regard to general advertising of positions makes it clear that there is no bar on the employees of the petitioner leaving its employment and joining the respondent and vice versa. The bar or restriction is on the petitioner and the respondent from offering inducements to the other's employees to give up employment and join them. Therefore, the clause by itself does not put any restriction on the employees. The restriction is put on the petitioner and the respondent and, Therefore, has to be viewed more liberally than a restriction in an employer-employee contract. In my view, Therefore, the non-solicitation clause does not amount to a restraint of trade, business or profession and would not be hit by Section 27 of the Indian Contract Act, 1872 as being void. 49. However, the question that arises is what happens when the respondent has solicited and/or induced or encouraged employees of the petitioner to leave and/or resign from such employment and join the respondent. Can an injunction be granted restraining the respondent from giving employment to such employees ? There are only two possible situations. The first is that an injunction is granted and, the second is t....
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....ntatives and/or competitors; 2) the employees of the petitioner would, however, be free to take up employment with the respondent even in response to the said advertisement which has prima facie been held to be solicitation, but, the respondent would be liable to compensate the petitioner for such breach of the non-solicitation clause, if so established in the pending arbitration proceedings." 18. In order to understand the submissions of the parties, it is necessary to read two clauses, i.e. termination of service and confidentiality which are reproduced here in below : "Termination The company has right to terminate this agreement by giving 3 months prior notice to the party. The other party does not have any right to terminate this agreement. In the event of the other party failing to discharge the duties and responsibilities under this agreement for any reason whatsoever, the other party shall to liable to pay to the company an amount equivalent to six months professional fee. Confidentiality i) ..... ii) The Presenter shall not present any other show for any other television channel during the currency of this contract and the services of the Presenter are being engaged....
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....and offer of future engagement of his service with any TV channel during the term of the contract otherwise, the petitioner company would be entitled to obtain an injunction against the respondent/ presenter from engaging in such conduct. The respondent beyond any doubt acted contrary to the stipulations of the agreement despite of undertaking. He has done just opposite to the terms during the term of the contract. 20. It is settled law that a negative covenant that the employee would not be employed by any other competitor of the petitioner for whom he would perform similar duties is not a restraint of trade. The interpretation of Section 27 has been discussed in detail in the case of Krishan Murgai Vs. Superintendence Company of India (P) Ltd., AIR 1979 Delhi 232. Para 9 reads as under: "9. The Courts in India have approached the construction of S. 27 in the following manner: (A) If a contract of service is valid and the performance of the contract by the employee requires that during the period of service he must not engage in any other work end must not divulge to any person the trade secrets of the employer then under such an agreement, even in the absence of a negative cove....
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.... or one sided and suffers from inequality of bargaining except while reading the clauses the Court has to take the prima facie view as to whether the present case is covered under the exception of Section 27 of the Contract Act, 1872 as service covenant extended beyond the termination of the service is void or not. 23. The question before this court is what nature of interim order which would be required to be passed in view of the peculiar facts and circumstances of the present case. Is the petitioner entitled to the relief claimed to the effect that during January, 2014 and for a period of one year thereafter i.e. 16th January, 2015 the respondent be restrained to be a presenter, host, anchor, reporter in any other manner in any on-screen solo to provide his service, this Court is of the view that the said relief as it is sought by the petitioner cannot be granted due to the reason that the respondent has already joined his new service with India News after his resignation. 24. He cannot be directed to leave the new employment and rejoin the join the petitioner. The same would be compelling a person to work with a particular employer which is impermissible. The said order would....