Madras High Court
Palat Achuthan vs The Management, Citi Bank N.A. on 8 August, 2003
Equivalent citations: (2004)ILLJ147MAD, (2003)3MLJ464
ORDER K.P. Sivasubramaniam, J.
1. The petitioner who was the erstwhile Vice-President of the respondent/Bank, has prayed for the issue of a writ of certiorarified mandamus to quash the order of the Deputy Commissioner of Labour (Appeals), dismissing the appeals filed by the petitioner under Section 41(2) of the Tamil Nadu Shops and Establishments Act, hereinafter called the Act, and for a consequential direction to the respondent to reinstate the petitioner with all consequential benefits.
2. The petitioner claiming to be a B.Com. (Hons.) Graduate and a Chartered Accountant, joined the services of the respondent as the Management Trainee on 23.2.1987. On completing the training, he was appointed as Assistant Manager on 1.6.1987. Subsequently, he was promoted as Manager on 1.6.1989 and thereafter as an Assistant Vice-President on 1.1.1991 and again promoted as Vice-President on 1.6.1991. The petitioner claims that he has earned all promotions due to hard work and excellent contribution to the respondents. He had served at Chennai branch from July, 1993. He was deputed on specific assignment to United Kingdom during July, 1996 to March, 1997 and again between October, 1997 and January, 1998. He also earned substantial increase in the salary and allowances. He had also contributed his services significantly to the Bank and in recognition of the same, he was awarded Global Relationship Banking Award of Rs.2,14,262/- which was given to him on 4.9.1997. The award was given for his contribution to the Chennai branch.
3. On 24.2.1998 the Human Resources Officer of the Bank informed him that the Bank wanted him to resign. No reasons were given for seeking his resignation. Therefore, the petitioner felt that as he had raised certain points regarding the Banks' dealings with a large industrialist group viz., M/s. United Breweries Ltd., as the reason for seeking petitioner's resignation. On 2.3.1998 he requested the respondents to inform him the reasons for his resignation and he wanted to know if the resignation was sought raising the said issue. The respondents did not send any reply. Without any justification or the petitioner received a letter on 2.4.1998 from the Human Resources Officer stating that his services were terminated from March, 31, 1998 with payment of three months salary in lieu of three months notice. The petitioner contends that the termination of the service was unreasonable and not for any misconduct, and that the order of termination was malafide and vindictive. The order of termination was illegal and hence he challenged the said order by filing the appeal under Section 41(2) of the Act.
4. Before the Deputy Commissioner, the Bank had contended that after July, 1996, the petitioner had ceased to be on the rolls of Chennai establishment of the Bank and that he was posted to Mumbai Office after his return from London in April, 1997. The petitioner however, filed a reply contending that he was working only at Chennai branch till March, 1998 and that the salary of the petitioner and other benefits were paid only by the Chennai branch. The order of termination was also issued to him at Chennai branch and the work sheet of the credit payment will also show that he was employed only at Chennai branch. The order of termination did not disclose any reason for the termination. The Bank did not also let in any evidence to dispute the fact. The respondent did not produce any evidence to show that the petitioner had been transferred to Mumbai.
5. However, the Appellate Authority dismissed the appeal holding that the petitioner had ceased to be on the rolls of Chennai branch from July 1996 and that he was not entitled to invoke jurisdiction under Section 41(2) of the Act. Hence the above writ petition.
6. In the affidavit, the petitioner contends that the Appellate Authority did not properly appreciate the facts and circumstances and the scope of the provisions under the Act. No evidence was produced before the Deputy Commissioner to show that the petitioner had been transferred to Mumbai. On the other hand, the petitioner had relied on various circumstances which would clearly establish that the petitioner was performing his duties only at Chennai.
7. In the counter filed by the Bank, the Bank has contended that the petitioner joined the services of the respondent/Bank in 1987 in Mumbai. In 1988 he was transferred to Calcutta and again retransferred to Mumbai in 1990. In 1993 he was shifted to Chennai where he was working as a Relationship Manager in the cadre of Vice-President. In the year 1996 it was decided that a Task Force be created all over the World with Senior Personnel having adequate banking experience. The petitioner was one such person chosen as a member of the Emerging Mark Task Force, hereinafter called EMTF. He was sent to London for exposure and from July, 1996 to March, 1997 he was to be given the next assignment at Mumbai. But he returned to Chennai and he was informed that his position in Chennai was already filled up and that his workplace was at Mumbai. The petitioner was again sent to London for further exposure in March,1997 with a specific direction that on his return he should report at Mumbai. However, contrary to the directions on his return from London, instead of reporting at Mumbai he proceeded to Chennai. He did not work at Chennai from July, 1996. As he was not willing to report at Mumbai, the respondent was obliged to terminate the service of the petitioner by letter dated 31.3.1998. According to the Bank after July, 1996, the petitioner had ceased to be on the roll of Chennai establishment. Even after his return from London, he was not working at Chennai Office. The petitioner's salary was being paid only at Mumbai office and he was also terminated only from Mumbai. The respondent had filed a counter statement before the Deputy Commissioner by dealing with all the points raised by the petitioner. The provisions of the Act were not applicable to the petitioner and hence the appeal before the Deputy Commissioner was not maintainable.
8. Before the Deputy Commissioner of Labour, the petitioner examined himself as a witness and also marked documents as Exs.A.1 to A.6. The respondent also examined a witness and marked documents Exs.R.1 to R.4. In the evidence it has been clearly brought out that the petitioner was posted only at Mumbai and was not working at Chennai office. Therefore, on consideration of the materials placed before it, the Deputy Commissioner had come to a proper conclusion. Therefore, the order was not vitiated by the error of law or jurisdiction. The other contentions raised in the affidavit filed in support of the writ petition were also denied by the respondents.
9. The issue which arises for consideration in this writ petition, is whether proper cause of action exists in favour of the petitioner so as to justify the territorial jurisdiction of the Deputy Commissioner of Labour, Chennai, who has rejected the petition on the ground that the facts do not justify his entertaining the petition and that the cause of action has arisen only in Mumbai where alone he was posted and that at the relevant point of time when the petitioner's services were terminated, he was not working at Chennai. The Appellate Authority thus did not go into any other issue and hence the only issue which arises for consideration in this writ petition is regarding the territorial jurisdiction.
10. I have heard both sides in detail and both learned counsel had taken me through the records and also the reasonings of the Appellate Authority. Learned counsel for the petitioner after stating the facts had relied on the following two judgments in support of his contention that the issue of territorial jurisdiction requires to be considered liberally especially in favour of the employee. In RALLIS INDIA LTD. v. ADDL. COMMISSIONER FOR WORKMEN COMPENSATION (1982 (II) L.L.J., 328), a Division Bench of this Court held that the Regional Office at Madras, was exercising control over the work of the employee and the order of termination was also served on the employee at Madras and that the said fact would show that at least a part of the cause of action arose in Madras which would be enough to confer jurisdiction on the authority at Chennai.
11. In NESLIN JOSEPH PRIM. v. PRESIDING OFFICER C.G.I.T. (2003 (1) L.L.N., 366), P.Sathasivam,J. held that though the employer/Company had its registered office at Delhi and the employee while in service was serving at different places in the country, the learned Judge relying on the fact that he was residing at Chennai, the appointment order having been served at Chennai, and that the order of termination was also served at Chennai, held that the authority at Chennai will have jurisdiction.
12. I am inclined to agree with the contention of learned counsel for the respondent that the only circumstance on the service of the termination order at Chennai alone cannot have the result of fixing jurisdiction at Chennai. Such a situation may arise due to various facts and circumstances. The employer being under the duty to have the order of termination duly served on the employee, has to do so wherever the employee is found to be residing. To say that in the said place part of cause of action would arise even though the employee had not worked in that place and the employer did not have any office in that place, would be in my opinion, incorrect. The fact that the Court should lean in favour of the employee, cannot result in stressing the point too far totally ignoring the difficulties of the employer also and to drive him to a place where he has absolutely no base. The question of jurisdiction based on part of cause of action is an issue of bundle of facts and cannot be at the unilateral choice of a party deciding to go and live at a place of his own at his choice. There should be at least some nexus in the performance of his duties in the place where the proceedings are instituted. Therefore, the entire issue has to be decided on the factual background of each and every case and there cannot be a comparison on facts in each case.
13. On a detailed analysis of the facts in this case, I am unable to uphold the decision of the Appellate Authority for the various reasons stated below. The main basis for the conclusion of the Appellate Authority appears to be based on his conclusion that the employee after his return from England was posted only at Mumbai and not at Madras and that he did not have any office room or cabin at the Madras branch of the Bank. The said conclusion totally ignores the following circumstances which are relevant for consideration of whether part of cause of action would be said to have arisen at Chennai:-
(I) Even going by the averments in the counter, the petitioner was working at Chennai from 1993 and when it was decided to choose him for EMTF, he was sent to London for exposure. He came back only to Chennai and did not join at Mumbai. Again he was sent to London for further training in March, 1997. After coming back then also he did not report at Mumbai, but reported only at Chennai. It is true that the respondent contends that he was required to report at Mumbai, but he did not do so. This tussle between the petitioner and the respondent whether on return the petitioner should have reported at Chennai or Mumbai cannot erase the fact that the petitioner was serving only at Chennai before he was sent to England for training. He did not choose to join at Mumbai and whether his conduct in doing so is justified or not, is a different matter on merits of the orders of termination. But that cannot affect the factual position that his last stint of service was only at Chennai Branch, which is sufficient to fix part of the cause of action at Chennai.
(II) The termination order was addressed to the petitioner and received by him at Chennai.
(III) In the working-sheet for the petitioner's Gratuity annexed to the Bank's letter to the petitioner dated 23.4.1998 as against the Column "Branch", working place is clearly shown as Madras. This clearly indicates that admittedly his last place of working was only at Madras.
(IV) Before the Appellate Authority, the petitioner had filed a reply statement and in paragraph No.3, he has contended that during the entire period while he was associated with EMTF or other assignments handled by him, his travel expenses from Madras were authorised/approved only at Chennai branch and the salary and all perquisites including his car allowances and the car itself was provided to him only at Chennai and credited to his accounts at Chennai. It is further stated that there was absolutely no change in the method of such payment till he was terminated from service. Though an additional counter statement was filed by the employer subsequently these averments were not at all controverted. Even during the arguments before me these submissions on behalf of the petitioner were not denied.
(V) One of the most crucial feature is that there is no specific order transferring the petitioner from Chennai to Mumbai. Though the Management Witness contended that issues like transfer, promotion, termination, etc. in the Departmental level meeting, they are recorded no documents/minutes were produced before the Appellate Authority. Even after a suggestion has been made in the cross-examination of the management witness that the records were not produced as they will show that the petitionr was not transferred to Mumbai, there has been no attempt on the part of the Bank to produce the records apart from merely denying the suggestion.
(VI) No action had been taken against the petitioner, nor any memo or charge-sheet had been issued against him for not going on transfer to Mumbai as admitted by the Management Witness in his cross-examination.
14. I am inclined to hold that though learned counsel for the petitioner had raised a few other points also, the above enlisted features are more than sufficient to hold that part of cause of action subsisted at Chennai and hence the appeal filed at Chennai is maintainable. The very basis of the dispute between the petitioner and the Bank from the point of view of the Bank itself, is the refusal of the petitioner to go to Mumbai. The fact that there was such a dispute may or may not be a justification for the Bank to terminate the service which issue has to be considered by the Appellate Authority on the merits of the order of termination. But the fact that he was stationed at Chennai cannot be disputed. The Appellate Authority appears to have been carried away by the fact that there was no office room or cabin for the petitioner at Chennai branch which is totally irrelevant. Let us take the simple case of an employee at Chennai being served with an order of transferring him from Chennai to Mumbai. He refuses to join at Mumbai and this is followed by an order of termination which is also addressed to Chennai and served at Chennai. In such a case part of cause of action survives at Chennai and the authority will have definite jurisdiction over the order of termination, even ignoring the additional factors in this case as pointed out above.
15. It is rather a matter of surprise that a mighty organisation like the respondent with all their official set up at Chennai should raise such an objection against a dismissed employee knowing fully well that he is stationed at Chennai and would be put to very much hardship in being forced to go over to Mumbai, engage a counsel and attend series of hearings at Mumbai, which is totally unfair.
16. In the result, the finding of the Appellate Authority on the issue of jurisdiction is set aside and the Deputy Commissioner of Labour (Appellate Authority) under the Tamil Nadu Shops and Establishments Act, Chennai, is directed to take the appeal on merits and dispose of the ame within a period of four months. No costs.