KUONI TRAVEL PVT LTD Vs. ASHISH KISHORE

JUDGEMENT

(1.) Heard the counsel for the parties. Perused the relevant pleadings and documents on record. This order will dispose of prayer for ad-interim relief.

(2.) The plaintiff prays for ad-interim reliefs on the basis of the contractual terms and conditions of employment. That has "non-compete" and "garden Leave" clauses. Non-compete clause reads thus :-

(3.) The counsel for the defendant, however, submits that once the defendant's services have been terminated and have come to an end, the question of forcing the defendant to comply with certain conditions which could have been relevant while the defendant was in service, if insisted upon, would be against public policy. The learned counsel would rely on the exposition of the Apex Court in the case of superintendence Company of India Ltd. Vs. Sh. Krishan Murgai, 1981 2 SCC 246, in particular paragraph 53 thereof. The counsel for the defendant has also pressed into service the exposition of the Apex Court in Percept d mark (India) (P) Ltd. Vs. Zaheer Khan, 2006 4 SCC 227, in particular paragraphs 58 and 63 as also the decision of the Calcutta high Court in the case of Gopal Paper Mills vs. S. K. G. Malhotra, 1962 AIR(Cal) 61, in particular paragraphs 18 and 20 thereof. On an analysis of the aforesaid decisions, it is not as if there is complete bar to impose condition such as garden leave even after the employment period has ended. From the exposition of the apex Court in the case of Percept D'mark (India) (P) Ltd. , as well as the decision of the calcutta High Court pressed into service by the defendant, it is obvious that the "doctrine of restraint" on trade secret can be invoked even after the service or employment period has come to an end. Indeed, a "restrictive covenant" can operate only during the employment period. But, that does not mean that restrictions cannot be imposed so as to ensure that doctrine of restraint regarding the trade secrets after the employment or service period has come to an end. Such restrictions can be part of a contractual obligation, which the defendant in this case, having agreed while entering the service, will have to abide. The relief claimed in the suit is very limited, for a declaration that the defendant is bound not to make use of, disseminate or in any way disclose any confidential information of the plaintiff-company and is also bound not to join "any other tour company or organisation which is in the business of organising tours and travel related services or conducting business similar to the business conducted by the plaintiff-company" till 30. 6. 2007 and is also bound not to solicit the customers, employees of the plaintiff for a period of three months from the date of completion of all resignation formalities as accepted and signed by the defendant in the letter dated 11. 9. 2006. This condition has not come free for the plaintiff. The plaintiff is required to pay full remuneration to the defendant for the relevant period when the garden leave clause would operate. The amount which is paid to the defendant, it is stated across the Bar, is not less than Rs. 1,22,000/- per month to compensate the defendant for requiring him to abstain from disseminating trade secrets of the plaintiff or affecting the business of the plaintiff, in any manner, during the said period. It is not the case of the plaintiff that the defendant "cannot work at all" in any other organisation which is unrelated to tour or travel related service or conducting business similar to the business of the plaintiff-company. It cannot be disputed that the period till 30th June is a crucial period for tour and travel business. If the defendant were to join some other competing organisation, he would be able to divert the prospective and even regular clientele of the plaintiff with whom negotiations were inconclusive. Indeed, all this is a matter of guess work. But to obviate any such loss being caused to the plaintiff, the plaintiff is entitled to invoke the restrictions provided by the garden leave clause for the specified period on payment. Thus understood, I find no substance in the objection taken on behalf of the defendant for continuing the ad-interim relief which was granted on 8. 6. 2007, which was obviously ex parte in nature, though the defendant was represented by the Advocate on that date of hearing.