A Bengaluru court has awarded nearly ₹3.78 crore in damages to a former Willis Towers Watson (WTW) employee after finding that his termination was retaliatory and breached the company’s obligation to protect whistleblowers [Naveen Kumar Midha Vs Rohit Jain].

By way of a judgment dated October 16, Additional City Civil and Sessions Judge Shirin Javeed Ansari partly allowed the suit filed by Naveen Kumar Midha, who had headed the company’s Health and Benefits business.

The Court held that a contractual provision permitting termination upon notice or payment of salary could not, by itself, excuse a breach of the company’s commitment against retaliation for being a whistleblower.

“The contractual provision permitting termination upon notice or salary in lieu thereof does not, by itself, cure an exercise of that power which is inconsistent with the applicable non-retaliation commitment,” the Court said.

Midha alleged that he had raised concerns about fictitious transactions, phantom payments, questionable vendor payments and alleged sub-broking activities contrary to regulatory requirements. He relied on communications and meetings between July 2017 and July 2018 to establish that he had reported these concerns to senior personnel of the company.

He was suspended on July 17, 2018. The suspension was revoked on September 27 but his employment was terminated the following day.

The company disputed his claims and relied on the contractual termination provisions. They also pointed to his subsequent employment and remuneration to contest his claim for financial loss.

The Court held that the notice clause and whistleblower protection operated in different spheres. One prescribed the mechanism for terminating employment, while the other governed the treatment of employees making protected disclosures. Both had to be read harmoniously.

It was unnecessary to hold that the whistleblower policy had deleted or superseded the termination clause. The question was whether the termination power had been exercised contrary to an independently binding obligation against retaliation.

“The policy is not to be treated as a decorative or inconsequential document. Its legal significance depends upon its proved terms and applicability, but once those matters are established, the Court must give it due effect in determining whether the defendants complied with their obligations,” the Court stated.

However, the Court distinguished an internal policy expressing an aspiration from one imposing an enforceable obligation. Its terms, adoption and applicability had to be proved. Here, a defence witness acknowledged that the company had adopted the WTW policies, that the code of conduct was binding and that it protected whistleblowers against retaliation.

The Court also distinguished reporting suspected wrongdoing from conclusively proving it.

“A whistleblower’s complaint may warrant examination under the applicable policy even where the alleged wrongdoing has not yet been conclusively established,” the Court opined.

Whistleblower protection would not necessarily depend on prior proof of every allegation. Nevertheless, the employee has to establish that the disclosure fell within the policy and that the adverse employment action was connected with it.

The Court clarified that neither the timing of termination nor the absence of a formal inquiry automatically established illegality against Midha on the part of the company.

However, the Court drew its conclusion in favour Midha after taking into account cumulative evidence, including the applicable policy, witness admissions, management’s decision not to pursue the matter underlying Midha’s suspension and his immediate termination without a conclusive finding of misconduct.

In light of the above, the Court awarded ₹3,67,97,082 in special damages to Midha and ₹10 lakh for mental agony, payable jointly and severally by four WTW entities. It separately ordered each defendant to pay ₹2 lakh each to Midha for injury to his professional life.

It also ordered a fresh, dignified relieving letter and removal of stigmatic observations from his suspension-related records.

The Court also directed perjury complaints against Vijay Kumar Suri, Managing Director and Principal Officer of Willis Towers Watson India Insurance Brokers, and Cedric Luah, who headed WTW’s Health and Benefits practice for Asia and Australasia. Both had incorrectly testified as defence witnesses.

It clarified that its findings were prima facie and that the Magistrate would independently determine guilt.

Midha was represented by advocates Arjuna Rao, who was instructed by advocates Madhav Misra and Ketan Paul of Curiam Legal.

Rohit Jain, Vijay Suri and Willis Towers Watson India Insurance Brokers were represented by advocate Syed Shujath Mehdi.

Vandana Bhatt, Willis Europe BV, Willis Towers Watson PLC and Willis Towers Watson India Private Limited were represented by advocate Perikal K Arjun of Shardul Amarchand Mangaldas.

[Read Judgment]