Offering whistleblower protection in private employment, a Bengaluru Civil Court has declared the 2018 termination of an employee, who was the former Head of Health & Benefits at Willis Towers Watson India Insurance Brokers, wrongful and unlawful.

Judge Shirin Javeed Ansari awarded him around Rs. 3.7 crores in special damages, while directing a perjury complaint against two senior WTW executives. The Court also awarded ₹10 lakh towards mental agony, anguish and harassment, and directed the concerned entities to issue the plaintiff a fresh, professionally worded separation or relieving letter without adverse or stigmatic observations concerning his conduct, professionalism or integrity.

“…If such conduct goes unremarked, witnesses in whistleblower and retaliation cases will conclude that a false denial costs nothing and that the oath is a formality. The public interest in truthful testimony, and in protecting the Court's process from deliberate deception, therefore requires prosecution….”, the court noted in the order.

The court ruled that WTW's contractual power to terminate on notice could not be exercised in a manner inconsistent with its own non-retaliation policy. The Court relied on the Managing Director's admissions that the board had adopted WTW policies, that the Code of Conduct was binding, and that whistleblowers were protected from retaliation.

“….The policy is not to be treated as a decorative or inconsequential document….The defendants cannot rely upon the existence of the termination clause as a complete answer to an allegation that the power was exercised for a purpose prohibited by another binding term…. The contractual notice provision and the non-retaliation provision operate in different spheres….”, the court said.

For context, the plaintiff-employee was suspended in July 2018, over allegations of facilitating payments to a client through a third-party administrator. He contended that he had raised concerns about alleged phantom vendor payments, manipulation of accounting records, payments to unlicensed intermediaries and other financial irregularities during his employment.

He claimed that the company's whistleblower policies protected employees who reported suspected wrongdoing and prohibited retaliation against them. According to him, despite communicating his concerns to senior management, he was suspended in July 2018 and terminated on September 28, 2018, without being furnished the particulars of the allegations against him or given an effective opportunity to respond.

Midha also alleged that the company failed to follow its internal procedures and that the termination was connected to the disclosures he had made.

The suspension was later revoked in September, after the company found no conclusive evidence against him. Then again, on the very next day, he was terminated with two months' salary in lieu of notice.

The Court found the 'close proximity' between revocation and termination, combined with the plaintiff's reporting the alleged financial irregularities, including facilitation fees to unlicensed sub-brokers, sufficiently established that the termination was retaliatory.

“…Chronology, by itself, is not conclusive proof of retaliation. The fact that termination follows a complaint or a suspension does not necessarily establish that the termination was caused by the complaint…Nevertheless, the close proximity between the revocation of the suspension on 27.09.2018 and the termination on 28.09.2018 is a circumstance that cannot be dismissed as irrelevant.…The absence of a formally titled whistleblowing complaint, by itself, cannot conclusively establish that no protected disclosure was made; the substance of the communications, the persons to whom the information was conveyed, and the surrounding circumstances must also be examined”, the court opined.

The court also clarified that the notice pay clause in the employment contract agreement would not act as a complete defence.

“…The defendants cannot rely upon the existence of the termination clause as a complete answer to an allegation that the power was exercised for a purpose prohibited by another binding term…”, the judge observed.

The Court also relied on admissions by Vijay Kumar Suri, Managing Director of Defendant No. 4, that the board had adopted WTW policies, that the Code of Conduct was binding, and that whistleblowers were protected from retaliation.

The court also referred to emails from Vikas Sharma, an allegedly unlicensed facilitator who claimed he had performed a 'facilitator role for Almondz [name later changed to Willis Towers Watson India Insurance Brokers] in India to win over high-profile clients for a fee.

Such communications were also copied and addressed to senior WTW officials such as Rohit Jain [Head of India Willis], Vijay Suri [Managing Director and Principal Officer], as well as Vivek Nath and Scott Burnett [other company functionaries], pointing to the factum that the facilitation allegations were known to senior management before the employee's suspension, the court opined.

Significantly, the Court also noted that the company did not disclose the pending dispute with Sharma in its August 2018 IRDAI licence renewal application.

On another note, the Court also directed the Registrar to file a complaint under Section 340(1)(b) CrPC [complaint for offences affecting the administration of justice] against Vijay Kumar Suri and another senior company official Cedric Luah for offences under Sections 193 and 199 IPC r/w Sections 191 and 192 IPC[perjury, false statements and fabricated or false evidence].

Against Suri, the Court identified that Suri initially relied on an email sent by Defendant No. 5 Ashok Singh on 16 July 2018, which asserted that Singh had acted on employee's instructions, without disclosing that Singh had withdrawn the email as erroneously sent within about three hours. The Court called this 'a half-truth', since the retraction was known to the defendant himself.

Additionally, the court added that Suri claimed that the termination of the employee was part of the company's restructuring, though he was not able to adduce any evidence supporting the same.

“…A termination reason that appears for the first time in the witness box, is absent from the pleadings, and is supported by no document is not testimony. It is invention”, the Court held.

Moreover, the court pointed out the disparity in Suri's statement that there was 'no concept of whistleblowing' in the company, which was later contradicted by his own admission that whistleblowers were protected.

Against Luah, on the other hand, the Court found that his 'absolute' denial of any disclosure by the terminated employee was false, especially in the light of a legal notice referring to 'allegations of sub-broking, which are in gross violation of the regulations prescribed by IRDAI', addressed to him. The court noted that this November 2017 WhatsApp message was received by Luah and acknowledged as well.

“….A bare disagreement does not explain away a specific, admitted document addressed to him….the public interest in truthful testimony, and in protecting the Court's process from deliberate deception, therefore requires prosecution”, the Court observed.

The Court, however, rejected the employee's defamation claims, seeking Rs 1 crore in damages as barred by limitation under Articles 75 and 76 of the Limitation Act, 1963. The alleged defamatory statements were made between July and October 2018, while the suit was filed on 18 January 2021, the court added.

Be that as it may, the court agreed with the employee's 'Loss of Income' chart, comparing projected WTW earnings with his actual UIB Insurance Brokers earnings (including a Rs 1 crore retention bonus). The model recorded a cumulative net loss of Rs 3,67,97,082/- which was awarded by the court in special damages, jointly and severally against Defendant Companies and its connected companies. The court also awarded Rs 10 lakhs for mental agony and harassment, Rs 2 lakhs additional compensation against each liable defendant for injury to professional life

Similarly, the Court directed the defendants to issue a fresh, dignified separation letter free of stigma, and to withdraw and expunge the suspension and revocation-of-suspension letters, insofar as they contained stigmatic observations about his conduct, professionalism and integrity.

“….Justice would be incomplete if the formal record of departure were permitted to perpetuate a stigma that the findings do not sustain”, the Court concluded.

The Court hence concluded that M/s. Willis Towers Watson India Insurance Brokers, Willis Europe B.V., Willis Towers Watson PLC and WTW India Pvt Ltd were jointly liable, finding they were bound by the WTW policies, and that senior personnel including Vivek Nath and Scott Burnett had received the whistleblowing communications.

Appearances For Plaintiff: Advocates Arjuna Rao and Madhav Misra

Appearances For Defendant Nos. 1, 2 and 4: Advocate Syed Shujath Mehdi, Advocate Perikal K. Arjun