Dipak Kumar Das vs Parkedavis India Ltd And Ors

(1) Heard Mr. P.K. Roy, the learned Advocate for the appellant and Mr. D. Baruah, the learned Advocate for the respondents No.2 and 3.

(2) The appellant is the plaintiff in Title Suit No. 220/2001. The said suit was filed for realizing a sum of Rs.63,56,750/- as damages and compensation

on the alleging that the appellant was illegally and mala fide terminated from service.

(3) The brief background of the present litigation is as follows:-

a. That vide appointment letter dated 08.09.1967 (Ext.1), the appellant was initially employed in Mumbai as Medical Serviceman by erstwhile Parke

Davis (India) Ltd. (respondent- defendant No.1). Accordingly, the appellant joined his service on 18.07.1967. The said Respondent No.1 Company is

since merged with Pfizer Ltd. (respondent No.2). The service of the appellant was confirmed as a permanent staff by the Respondent No.1 vide letter

dated 09.01.1969 (Ext.2). By letter dated 19.12.1983 (Ext.3), the appellant was promoted as Field Manager w.e.f. 01.12.1983 by the Respondent No.1

with his Head Quarter at Ranchi. After about 3 (three) years, the appellant was transferred to Guwahati.

b. Thereafter, vide letter dated 29.12.1997, the other staffs were communicated not to report to the appellant but to report to another officer.

Aggrieved by the said letter dated 29.12.1997, the appellant had instituted T.S. No. 4/1998 before the learned Court of Civil Judge (Junior Division),

No.1, Guwahati. The said suit was transferred for trial before the learned Civil Judge (Junior Division), No.3, Guwahati. Along with the said suit, a

petition under Order XXXIX Rule 1 and 2 read with section 151 CPC for ad-interim injunction, which was numbered as Misc. (J) Case No. 4/1998.

The learned trial court granted ad-interim injunction vide order dated 02.01.1998, which was made absolute by order dated 02.03.1998. The

respondent No.1 preferred an appeal, which was registered as Misc. Appeal No. 10/1998. The said appeal was allowed by judgment and order dated

12.03.1998 passed by the learned Civil Judge (Senior Division) No.1, Kamrup, Guwahati. The appellant preferred a revision before this Court, which

was registered as Civil Revision No. 124/1998. This Court by order dated 21.07.1998, dismissed the said revision, however, by directing that the first

appellate judgment shall not influence the trial court while deciding the suit.

c. In the meanwhile, the appellant was re-designated as Manager, Institutional Sales in North East Region, at Guwahati by order dated 12.03.1998.

During the pendency of the suit, the appellant was transferred from Guwahati to Nagpur by letter dated 24.12.1998. Owing to the subsequent

development, the appellant prayed for amendment of the plaint, and he had once again prayed for injunction. The learned trial court by order dated

08.02.1999, directed the respondent No.1 to maintain status quo prior to 24.12.1998 till the disposal of the amendment petition. The respondent No.1

preferred an appeal and the learned first appellate set aside the order passed by the learned trial court to maintain status-quo. Against the said first

appellate order, the appellant approached this Court by filing CRP No. 128/1999. This Court by order dated 21.04.1999 had stayed the operation of the

order passed by the learned first appellate Court. However, by order dated 29.09.1999.

d. Thereafter, the appellant withdrew TS No. 4/1998 and instituted TS 236/99. The said case was being tried in the Court of learned Civil Judge No.3,

Guwahati. The learned trial court did not grant ad-interim injunction in connection with Misc. (J) Case No. 303/99. Therefore, the appellant preferred

an appeal, being Misc. Appeal No. 44/1999. However, the learned appellate Court also did not grant any ad-interim relief. In the meanwhile, the said

TS No. 236/1999 was dismissed for non- prosecution by order dated 24.04.2000.

e. In the meanwhile after a series of correspondence, the service of the appellant was terminated vide letter dated 07.06.2000 (Ext.P). and vide letter

dated 10.07.2000, the gratuity payable to the appellant amounting to Rs.1,17,696/- was paid by way of a bank draft enclosed thereto.

(4) The appellant had also filed Money Suit No. 125/2000, claiming a sum his arrear salary and other benefits amounting to Rs.3,98,391.50.

(5) Thereafter, the appellant had instituted Title Suit No. 220/2001, interalia, stating therein that during the pendency of the money suit, his services

were terminated by letter dated 07.06.2000. Moreover, the appellant had come to know that the respondent No.1 Company had merged with the

Respondent No.2 Company. The said TS 220/2001 was tried by the learned Court of Civil Judge No.1, Guwahati.

(6) As per the plaint, it was projected that the appellant had been victimized and that departmental proceedings was drawn up without any enquiry and

without giving reasonable opportunity to the appellant to be heard. It was stated that the Respondent No.1 Company did not have any service rules

and despite many requests, the respondent No.1 did not furnish him with “Code, method, circulars, Rules, etc.â€, nothing was furnished. It was

stated that the service of the appellant was terminated on false, frivolous and vague reasons without giving him any opportunity to defend himself,

which was in violation of legal and constitutional norms and that he was victimized by not paying salary and other benefits till the date of termination of

his service. It was stated that the appellant had suffered extreme physical and mental agony, and that his wife and other members of his family

including college going daughters had also suffered loss, tension and suffering, for which the respondents were liable to pay damage and

compensation. The concise claim of the appellant is as follows:-

a. Yearly salary:Â Â Â Â Â Â Â Â Â Â Â Â Â Rs.14,55,797/-

b. Incentives:                 Rs. 2,75,085/-

c. Daily allowance:        Rs. 3,10,866/-

d. Claim for last 41/2 yrs: Rs. 3,24,000/-

e. PF Claim:                  Rs.   87,690/-

f. Pension:                     Rs.   97,312/-

g. Difference of gratuity: Rs. 1,33,000/-Â Â Â Â Â Â Â Rs.26,56,750/-

h. Damages and compensation under 5 heads:Â Â Rs.37,00,000/-

i.           Total:                            Â

                       Rs.63,56,750/-

(Rupees sixty three lakh fifty six thousand seven hundred fifty three only).

(7) The respondent No.1 and 4, i.e. Parke-Davis (India) Ltd. had contested the suit by filing their written statement in May, 2002. The respondents

No.2 and 3 i.e. Pfizer Ltd. had filed their separate written statement in the May, 2002, inter-alia, stating therein that the Respondent No.1 and

Respondent No.2 Company had not yet merged. Thereafter, by filing additional written statement in May, 2003, the respondents No.2 and 3 took a

stand before the learned trial court that by order dated 07.02.2003, the merger of the Respondent No.1 and Respondent No.2 Company had been

approved by order dated 07.02.2003, passed by the Hon’ble Bombay High Court in Company Petition No. 894/2002 and 895/2002 (Ext.B & C).

Moreover, it was stated that the written statement filed by the respondent No.1 was adopted by them.

(8) On the basis of pleadings, the learned had framed the following four issues for trial, viz.,

(1) Is there any cause of action for the suit?

(2) Whether the suit is bad for mis-joinder and non-joinder of necessaryparties?

(3) Whether termination of the plaintiff from service by the defendants isillegal, arbitrary and mala fide and violative of the principle of natural

justiceâ€​

(4) Whether the plaintiff is entitled to the relief as claimed for in the suit?

(9) The appellant had examined himself as PW-1 and he had exhibited 31 documents Ext.1 to Ext.31. The respondent No.2 examined one Vinod

Shetty, Senior Manager, Human Resources., who had exhibited 31 documents as Ext.A to Ext.T.

(10) The learned trial court took up the issue No.3 to be decided first. On the basis of pleadings and evidence on record, it was held that the

respondent No.1 being a juristic person cannot act mala fide, and as concerned persons had not been made a party in the suit, the allegation of mala

fide was held to be not maintainable. By referring to the cross examination of PW-1, the learned trial court did not accept the plea that service was

terminated by denying natural justice as the senior officials of the Respondent No.1 had issued direction to him to resume his duties at Nagpur, but he

did not go due to his ailment. As per Ext.1, 2 and 3, the learned trial court had held that the service of the appellant was contractual, which cannot be

equated with government service. It was held that the appellant had disobeyed the transfer order of his employer illegally vide his letter dated

25.12.1998 (Ext.L). It was held that without complying with the order of transfer, the appellant had taken long leave on false plea of illness and hence

his service was terminated. It was held that the appellant had failed to prove by cogent evidence that the order for his termination was illegal,

arbitrary, mala fide and violative of principles of natural justice and, as such, the issue was answered in negative and against the appellant.

(11) In respect of issue No.1, it was held that the appellant had failed to prove that there was any cause of action for the suit, as such, the said issue

was answered in the negative and against the appellant. In respect of issue No.2, it was held that as the Directors and officers of the Respondent

Companies were not made parties and companies being juristic persons cannot commit mala fide act, as such, it was held that the suit was bad for

non- joinder of necessary parties. Moreover, as after merger vide Ext.B, Ext. C and Ext.D, the respondents No.1 and 4 had ceased to exist, it was

held that suit was also bad for their mis-joinder.

(12) In respect of issue No.4, the learned trial court had discussed the crossexamination of PW-1, who had admitted that L.T.A. bill was the discretion

of the Company and could not be availed as a matter of right. Moreover, he had also admitted that he had not adduced any evidence to show how he

had suffered anxiety, tension, harassment, loss of prestige of his family, etc. He had also deposed in his cross examination that he had not given any

evidence nor submitted any document to show on what basis he was to entitled to get Rs.63,56,750/-, as such, it was held that the claim was without

any basis and not proved. The learned trial court accepted the submissions of the learned counsel for the respondents No.2 and 3 that the claims for

salary and other service benefits were subject matter of M.S. No. 125/2000 filed by the appellant, which was dismissed vide judgment and order dated

17.05.2005 without cost. Hence, by holding that the appellant had not been able to prove the claim, the suit was dismissed by the judgment and decree,

impugned in this appeal.

(13) The learned Counsel for the appellant had meticulously taken this Court through all the pleadings as well as evidence and exhibits on record in

course of his arguments, which continued for 2 days, while the learned counsel for the respondents No.2 and 3 had also referred to the relevant

exhibits and cross- examination of the PW-1.

(14) The gist of the submissions of the learned counsel for the appellant is that the appointment of the appellant as the field manager was an

independent appointment vide letter dated 19.12.1983 (Ext.3) and, as such, his said appointment cannot be controlled by previous terms and conditions

of appointment as Trainee Medical Serviceman vide letter dated 08.09.1967 (Ext.1) and vide letter of confirmation vide letter dated 09.01.1969

(Ext.2). It is submitted that while in Ext.1, there was a clause enabling the respondent No.1 to terminate the service of the appellant without giving any

notice, and that in Ext.2, it was provided that service could be terminated by giving 2 (two) week’s notice. In Ext.1(B) and Ext.2(B), it was

provided that service could be dispensed with for any one of the offences of (i) insubordination, (ii) dishonesty, (iii) conduct, either on duty or off duty,

considered prejudicial to the interest of the company. However, in Ext.3, there was no clause which permitted termination from service, rather it

provided him opportunity to retire from service on attaining the age of 60 years. Hence, it is submitted that on the ground of insubordination, for not

joining new place of posting at Nagpur, the service of the appellant was illegally terminated, as a punishment for approaching the court for reliefs. It is

submitted that the respondents had transferred him mala fide and his service benefits including increments and incentives were illegally and arbitrarily

withheld and denied to him.

(15) It is submitted that as the contract vide Ext.3 was independent, it was not open to put words therein by borrowing words from Ext.1 and 2,

relating to termination of service for alleged misconduct. It is further submitted that contract vide Ext.2 and Ext.3 were on different footing. It is

submitted that vide Ext.2, the service of the appellant was confirmed as Medical Serviceman, which was partly contractual and partly statutory,

because, the employer was liable for statutory compliances under Payment of Wages Act, Payment of Bonus Act, etc. However, vide Ext.3, the

appellant was promoted to management grade and, as such, after Ext.3 was signed by both parties, the respondent cannot be permitted to rely on

contractual employment vide Ext.2.

(16) It is submitted that as the appellant had approached the competent court having jurisdiction seeking interference with his transfer orders, the

respondents had terminated his service, which was nothing but an attempt to over-reach the Court. Hence, the learned counsel for the appellant had

assailed the decision of the learned trial court on issue No.3. It is submitted that the decision of the learned trial court on issue No.4 was not

sustainable because when the appellant had spelt out the details of the claim in the plaint with detailed calculation, there was no need to tender any

further evidence, as the learned court was only required to see that whether the claim was correctly made or not. It was submitted that the mala fide

action against the appellant was by the Respondent No.1 Company, and that the employer would suffer the vicarious liability for illegal actions of its

employees and management. Therefore, it is submitted that the learned trial court had failed to appreciate the facts and evidence in its proper

perspective.

(17) It is strenuously submitted that the Respondent No.1 Company had merged with the Respondent No.2 Company. The respondents did not

examine the person who had signed and verified the written statement. It is submitted that written statement as well as additional written statement on

behalf of respondent No.2 was signed and verified by one Shri Mahendra Bangar, Manager- Personnel and Industrial Relations, but one Vinod Shetty,

Senior Manager, Human Resources, was examined by the respondent No.2 as DW-1, as such, the said DW-1 was not competent to represent the

respondent No.2 as per the provisions of Order XXIX Rule 1 CPC. It is also submitted that the Power of Attorney (Ext.A), based on which DW-1

had deposed, did not specifically authorize him to give evidence. It is submitted that the DW-1 had no personal knowledge about the case, as such, his

evidence was unreliable. Hence, it is submitted that the learned trial court ought to have disregarded the said evidence of DW-1 and the suit ought to

have been decreed.

(18) It is submitted that the suit was filed for breach of contract, which was within the scope of Section 73 of the Contract Act and, as such, the

appellant was entitled to claim pecuniary and non-pecuniary damages. In this regard, the learned Counsel for the appellant has placed reliance on the

case of Executive Committee of Vaish Degree College, Shamli & Ors. Vs. Lakshmi Narain & Ors., AIR 1976 SC 888.

(19) The learned Advocate for the appellant had relied on the following cases:-

a. S. Kesari Hanuman Goud Vs. Anjum Jehan & Ors., (2013) 12 SCC 64;

b. Man Kaur Vs. Kartar Singh, (2010) 10 SCC 512;

c. Bank of India & Anr. Vs. K. Mohandas & Ors., (2009) 5 SCC 313;

d. Lata Construction & Ors. Vs. Dr. R. Rameshchandra Ramniklal Shah & Anr., (2000) 1 SCC 586;

e. Union of India Vs. Sugauli Sugar Works (P) Ltd., AIR 1976 SC 1414;

f. Tata Engineering & Locomotive Co. Ltd. Vs. Bharat Mining Corporation Ltd. & Ors., AIR 1980 Bom 168.

(20) Per contra, the learned Advocate for the respondents No.2 and 3 submits that the appellant had filed a frivolous suit. It is submitted that in his

cross- examination, the appellant (PW-1) had admitted to the effect that in Ext.3, only those terms which were inconsistent with Ext.1 was changed. It

is submitted that the contract was for personal service, which cannot be enforced in view of the provisions of Section 14(1)(c) of the Specific Relief

Act, 1963 as the said contract vide Ext.3 was determinable in nature.

(21) It is submitted that this Court, in its judgment dated 29.09.1999, in CRP No. 128/99 had held that no case of mala fide was made out. It is

submitted that on ground of insubordination, the service of the appellant was terminated, which was not a sudden decision, but ample opportunity was

given to the appellant to join his place of posting at Nagpur before terminating his services. However, for one reason or the other, especially on

medical ground, the appellant did not join at his transferred place of posting. In the meanwhile, the appellant had been continuously litigating against his

employer, subjecting the respondent No.1 with TS No. 4/1998, TS 236/2000, MS 125/2000 and TS 55/2010, two misc. appeals, two revisions as well

as this present appeal before this Court. It is submitted that although by order dated 23.12.1999, the learned Civil Judge (Senior Division) No.1,

Guwahati, did not grant any ad-interim injunction against the transfer order, but somehow the appellant misunderstood the said order the appellant by

his letter dated 25.12.1999 informed the Regional Sales Manager that he had joined on 25.12.1999. It is submitted that in his eagerness to join the

office at Guwahati, the appellant had perhaps forgotten that on 25.12.1999, the office of respondent No.1 was closed for Christmas.

(22) By referring to the letter dated 29.12.1997 (Ext.17), it is submitted that due to poor performance of business, some changes were envisaged in the

field set-up. Thereafter, institutional sales work had been terminated in the State as there was no growth of business. Hence, the appellant had to be

transferred to Nagpur. It is submitted that there was no injunction operating against the transfer order dated 24.12.1998 w.e.f. 29.09.1999, when CRP

No. 128/99 was dismissed. But the appellant did not join his place of posting. It is submitted that after various letters and telegrams, the appellant did

not join his post. Even thereafter, the services of the appellant was not terminated, instead a show cause notice dated 01.03.2000 (Ext.O), was issued.

However, without replying to the said show cause notice, the appellant had instituted TS No. 236/2000, which was dismissed as aforesaid. It is

submitted that when after being given sufficient time, when the appellant did not join his transferred place of posting at Nagpur, the services of the

appellant was terminated with immediate effect by letter dated 07.06.2000. In this connection, it is submitted that as per the terms of service vide

Ext.3, the service of the appellant could be terminated with one month’s notice, as such, the appellant would only be entitled to the salary for 1

(one) month in lieu of notice. However, the appellant was not entitled to any salary or service benefits on and from 24.12.1998 as he had never

worked for the respondents.

(23) It is submitted that the DW-1 had deposed on the basis of record. It is submitted that the respondent No.1 Company had merged with the

respondent No.2 Company. As such, it was under the Scheme of Amalgamation, as approved by the Hon’ble Bombay High Court, that the

respondent No.2 had inherited the present litigation. It is submitted that the Clause 8 of the said Scheme [Ext.D(1)], provided that all legal proceedings

by or against the Transferor Company pending or arisen before the appointed date i.e. 07.02.2003, shall be continued and be enforced by or against

the Transferee Company. Moreover, by Power of Attorney dated 25.11.2006, the DW-1 was authorized to represent, appear and act in all Courts,

Civil, Revenue and Criminal, whether in original or in appellate for the respondent No.2. Hence, the evidence of DW-1 could not be discarded.

(24) It is submitted that in his evidence on affidavit, the appellant had not tendered any evidence to prove his monetary claim. Thus, the suit was rightly

dismissed with a decree against the appellant. In support of his submissions, the learned Advocate for the respondents No.2 and 3 has placed reliance

on the following cases; viz.,Â

a. Pearlite Liners (P) Ltd. Vs. Manorama Sirsi, (2004) 3 SCC 172;

b. S.M. Mohandas Vs. Esso Standard Eastern Inc., MANU/TN/ 0309/1968.

(25) On the basis of the submissions made by the learned Advocates for both sides, the only question to be determined in this appeal is â€

       i.      Whether the judgment and decree passed by the learned trial court is sustainable on facts and in law?

(26) It is seen from the contents of appointment letter dated 19.12.1983 that the job of the appellant was transferable. It is too well settled that as

transfer is an incidence of service, courts would be slow to interfere with such order of transfer. Therefore, it is to be seen that if the appellant has

been able to prove that his transfer was illegal, arbitrary, malicious, or mala fide, as alleged. In this regard, from the evidence- on- affidavit filed by the

appellant (PW-1), there is no material to show that the respondent No.1 was required to involve the appellant in the decision making process before

transfer order is passed. Merely, because the superior persons in Management had exercised their power to transfer the appellant to Nagpur, the said

decision cannot be held to be arbitrary. The DW-1 had stated in paragraph 14 of his evidence- on- affidavit that the appellant was transferred as per

the business needs of the Company to streamline the business of the Company. In paragraph 10, 11 and 13 of the evidence- on â€" affidavit, the DW-

1 had stated that in the year 1998, the Respondent No.1 started institutional sales, and the appellant was posted as Manager, Institutional Sales, which

was why the staff were asked to report to another officer, who was equal in status and rank with that of the appellant, but while institutional sales

business picked up in other States, it did not do well in North Eastern States, for which the appellant had to be transferred. It is seen that eventually

the business of respondent No.1 was amalgamated with the respondent No.2 Company. Thus, while the DW-1 could prove that the transfer of the

appellant was in the business interest of the respondent, the appellant did not lead any evidence to prove his allegations that his transfer to Nagpur was

vitiated by mala fide or was punitive in nature. Hence, except his own version, there is no evidence that the respondent No.1 used transfer orders as

an instrument to penalize the appellant. Moreover, for reasons which are not required to be reiterated herein, the appellant had filed TS No. 236/2000,

but his transfer order was eventually sustained by order dated 29.09.1999, passed by this Court in CRP No. 128/99. Hence, in the absence of any

prohibitory order, suspending his transfer vide letter dated 24.12.1998, the said transfer cannot be held to be arbitrary, mala fide or malicious in the

absence of any cogent or admissible proof for the same.

(27) It is seen that as per evidence on record, although CRP No. 128/99 was dismissed by this Court by order dated 29.09.1999, instead of joining his

place of posting, the appellant had filed TS No. 236/2000 , which was also dismissed by order dated 24.04.2000 (Ext.M). Therefore, in the considered

opinion of this Court, by not joining his place of posting, the appellant had taken a calculated risk of disobeying the orders passed by his superiors. The

respondent No.1, who was the employer of the appellant, by (i) telegram dated 04.01.1999 (Ext.J), (ii) telegram dated 11.01.1999 [Ext.N(1)], (iii) letter

dated 02.02.1999 [Ext.N(2)], (iv) telegram dated 04.10.1999 [Ext.N(3)], (v) letter dated 13.12.1999 [Ext.N(4)], (vi) letter dated 21.01.2000 [Ext.N(5)],

and (vii) letter dated 21.01.2000 [Ext.N(6)], had directed the appellant to join his place of posting at Nagpur. Although the appellant disobeyed the

directions contained in the above referred 7(seven) communications, the respondent did not terminate the service of the appellant. The respondent

No.1 had issued a show cause notice dated 01.03.2000 (Ext.O) to the appellant. However, the appellant did not prove any reply to the said show

cause notice. Rather, the appellant had instituted TS No. 236/2000, which was also dismissed as aforesaid. Therefore, it appears that the respondent

No.2 had proved that only after having given sufficient opportunity to the appellant to join his transferred place of posting at Nagpur, the services of

the appellant was terminated with immediate effect by letter dated 07.06.2000. Hence, with the overwhelming evidence against the appellant, this

Court is not at all convinced that the appellant has been able to prove that his transfer was illegal, arbitrary, malicious, or mala fide, or that such order

was passed in violation of natural justice and/or without affording any opportunity to be heard, as alleged. Thus, the decision of the learned trial court

on issue No.3 cannot be faulted with. The appellant had invited his termination from service by his act of insubordination, which was not in the interest

of his employer.

(28) The appellant had pleaded in the plaint that on 28.05.2000, he had come to know about the amalgamation of the respondent No.1 and 2

Companies, which is not borne by any evidence. The DW-1 had proved vide Ext.B, Ext.C and Ext.D that the Scheme of Amalgamation was approved

by the Hon’ble Bombay High Court on 07.02.2002. Therefore, the appellant could not prove that any cause of action arose on

28.05.2000. It was also pleaded that cause of action arose on 07.06.2000, when the service of the appellant was terminated and on 30.11.2000, when

Advocate’s notice was served on the respondents. In this connection, as the learned trial Court had given a finding against the appellant in respect

of issue No.3, there is no infirmity in the decision by the learned trial court in respect of issue No.1 that there was no cause of action for the suit.

(29) In respect of the decision by the learned trial court on issue No.2, the learned trial Court had observed that according to the appellant, the

Directors in the H.R. Department and Sales were the persons who had taken mala fide action against the appellant. But the appellant had not arrayed

those persons as defendants in the suit. It was held that the respondent companies were juristic persons, and they cannot act as individuals for

committing mala fide, as such, it was concluded that the suit was bad for non- joinder of necessary parties. Similarly, it was held that the suit was bad

for misjoinder of respondents No. 2 and 3 as defendants at the time when the suit was filed on 31.08.2001, and likewise, respondents No.1 and 4 had

merged with the respondent No.2 Company as per sanction of the Hon’ble Bombay High Court on 07.02.2003, and had ceased to exist, as such, it

was held that the suit could not be continued against them. In this regard, the DW-1 had proved Clause 8 of the Scheme of Amalgamation [Ext.D(1)],

provided that all legal proceedings by or against the Transferor Company pending or arisen before the appointed date i.e. 07.02.2003, shall be

continued and be enforced by or against the Transferee Company. Such an order is passed under the provisions of section 394(1)(iii) of the

Companies Act, 1956. Moreover, the Transferor Company gets dissolved without winding up as per the provisions of section 394(1)(iv) of the

Companies Act, 1956 and resultantly, the respondent No.1 Company and its Branch Office at Guwahati, i.e. Respondent No.4 is struck-off from the

Register of Companies of the jurisdictional Registrar of Companies. Thus, this Court is of the considered opinion that no decree can be passed against

the respondent No.1 and 4 and, as such, the learned trial Court had correctly held that the case was bad for mis-joinder of the said respondents No.1

and 4. Moreover, the learned trial Court has rightly held that the respondent No.1, as it existed then, being a juristic person cannot act mala fide and as

the human agency who had passed the orders adverse to the appellant was not arrayed as a defendant in the suit, this Court does not find any fault

with the said reasoning. Accordingly, in the considered opinion of this Court, the decision of the learned trial Court that the suit was bad for non-

joinder of necessary parties does not deserve any interference. However, in so far as the other allegation relating to decision to terminate the service

of the appellant and claim for money is concerned, the suit was still maintainable, as such, the learned trial Court had rightly not dismissed the suit for

non- joinder of necessary parties. Thus, the decision in respect of issue No. 2 does not suffer from any infirmity and, as such, the decision on the said

issue is hereby upheld.

(30) With regard to the issue No.4, i.e. whether the appellant is entitled to relief as prayed for. In this regard, as already decided in respect of issue

No.3 to the effect that the transfer order dated 24.12.1998 and order of termination dated 07.06.2000 cannot be held to be mala fide in the absence of

individuals whose actions were mala fide. Similarly, while discussing issue No. 3, this Court had arrived at a finding that the appellant has not been

able to prove that his transfer was illegal, arbitrary, or that such order was passed in violation of natural justice and/or without affording any

opportunity to be heard, as alleged. Therefore, the evidence on record is again evaluated to see if the appellant is entitled to relief as prayed for.

(31) In this regard, it is seen that in his cross examination, the appellant (PW1) had stated that “insubordinationâ€, according to him is if he refused

to obey the direction of the seniors. He had admitted in his cross examination that the senior officers of the company had issued direction to him to

resume duty at Nagpur, but he could not go due to his ailment. Thus, it cannot be said that the appellant was aware that not obeying his superiors to

join at the transferred post at Nagpur was an act of insubordination. Though the PW-1 had stated in his cross examination that Ext.3 overrides the

respective terms and conditions mentioned in Ext.2, and he also admits that Ext.3 makes changes of certain terms and conditions which were in Ext.2.

PW-1 had also admitted that as per communication dated 12.03.1998 (Ext.H), he was informed that all the terms and conditions of service would

remain unchanged as Area Sales Manager. The appellant also admits in his cross examination that as per Ext.3(A), his service was transferable to

any other field location or to any Department in establishment forming part of the organization. PW-1 had also stated that there was no written or

verbal undertaking by the respondents that he would not be transferred out of Guwahati. Moreover, he has specifically admitted that as per clause 10

[Ext.3(B)], his employment/ services can be terminated by the Company by giving him 30 days’ notice in writing or on payment of 1 (one)

month’s salary in lieu of notice.

(32) The PW-1 had further admitted that it is the Company who decides whether to give increment or not. Similarly, he had also admitted that

increase of LTA amount depends upon the Company. The PW-1 had also admitted the non-production of any letters from the Company to show that

he could claim increase of LTA, claim towards fare, hotel expenses, local conveyance, out-of â€"pocket expenses, on the basis of his claim. He had

also admitted that Mr. Dilip Kr. Dutta, whose name appeared in paragraph 6 of his Evidence- on- affidavit was Area Sales Manager of the

respondent Company on 29.12.1997, which showed that the said employee was also of a rank which was equal to the appellant. The PW-1 had

admitted that he had not exhibited any medical document from 12.03.1998 to 24.12.1998 and he had also not exhibited any medical certificate or

opinion before the court to show that he was ill and cannot resume duty from 24.12.1998 to 07.06.2000. He also admitted that it is not a fact that if he

was in Nagpur he would be unwell and that he would be well at Guwahati. PW-1 had also admitted that it is a fact that when he came to learn that

the transfer order dated 24.12.1998 had been kept under suspension by Civil Judge (Senior Division) No.1, Guwahati by order dated 23.12.1999, he

had recovered from illness and had joined his duty at Guwahati on 25.12.1999. He had further stated that he did not recollect if in any of his pleading

or evidence he had mentioned about his asthma. He had further stated in his cross examination that the basis on which he had sought leave was a

leave statement, which had not been exhibited. He had also stated that in his communication dated 27.03.2000 and 12.04.2000 (Ext.15 i.e. the show

cause reply), he had not mentioned anything about his medical ailment. The PW-1 also did not recollect as to whether TS 236/2009 was pending or not

and he also could not say whether TS No. 236/99 was pending when he was terminated from service. The PW-1 had further stated that in show

cause notice, it was alleged that inspite of no order staying the transfer order dated 24.12.1998 and directions by the superiors to resume duties at

Nagpur, he had not resumed duty. He had further admitted that this Court by judgment dated 29.09.1999 in CRP No. 129/99, had held that the transfer

order dated 24.12.1998 was not mala fide but was issued in exigency of the administration and in the interest of the respondent Company herein. Thus,

in his cross- examination, the appellant had admitted the defence of the respondent No.1 that he had not resumed his duties despite directions by his

superiors and despite that there was no stay operating against his letter of transfer dated 24.12.1998. Thus, the appellant had not only disproved his

own case, but he had established his act of insubordination. Hence, in view of the over-whelming evidence against the appellant on record, the actions

of the respondent No. 1 in terminating the service of the appellant cannot be said to be arbitrary, mala fide, illegal, malicious or vitiated by denial of

natural justice and/or denial of diving reasonable opportunity to the appellant of being heard.

(33) In so far as the monetary claim of the appellant is concerned, the appellant had not proved any bills and vouchers in respect of any of the

monetary claim made in the suit. Moreover, the appellant had stated in his cross examination that medical expenses are reimbursed by the Company

after documents were produced by him. The appellant had also admitted that he had not submitted any application or evidence to show that he had

claimed the reimbursement of any medical expenses. He had also stated that increase of LTA amount depends on the Company. He had also

admitted that he had not produced any letters from the Company to show that he could claim increase of LTA, claim towards fare, hotel expenses,

local conveyance, out-of â€"pocket expenses, on the basis of his claim. He had also stated that the basis on which he had sought leave was only a

leave statement, which he had not exhibited in court. The most damning admission by the appellant (PW-1) in his cross examination are:-

a. “In my evidence I have not mentioned anything as to how the amount of Rs.63,56,750/- has been claimed by me.â€​

b. “I have not submitted any documents to show how I am entitled to get Rs.63,56,750/- except mentioning the same in the plaint.â€​

c. “I have not produced any documents or witness to show that my wife Mrs. Purbi Das lost her prestige, her health, her condition deteriorated

etc.â€​

d. “I have not produced any documents, evidence witness whatever to show

that my daughters had lost their prestige, educational loss, etc.â€​

e. “I have not produced any evidence as regards self anxiety, tension, harassment.â€​

f. “I have not made any claim to the Company as regard telephone, leave and medical. I have not submitted any documents in respect to telephone,

leave and medical benefit.â€​

g. “I have not produced any documents which goes to show that I am entitled to any daily allowance.â€​

h. “The amount of 16% interest charged was the amount value at that point of time.â€​

i. “I have not submitted any documents on basis of which I claimed leave travel assistance.â€​

j. “I received by P.F. amount till my date of termination. I have not exhibited the Advocate’s notice dated 30.11.2000 as mentioned in

paragraph 17 of my affidavit.â€​

(34) It is further seen that the DW-1 was confronted with Exhibits No. E, F, G only. The said witness had denied that the appellant had been kept in

Guwahati by the erstwhile respondent No.1 under wrong designation of Area Manager Institutional Sale. In reply to the suggestion made during his

cross examination, the DW-1 had stated that “…

it is not a fact that the plaintiff had submitted his reply on 12/03/00 and there no hearing.†He had also denied the suggestion that the appellant was

absent voluntarily.

(35) Therefore, in light of the re-appreciation of the pleadings and evidence on record, it is seen that the appellant was not entitled to any relief as

prayed for, in as much as that while the appellant has not been able to prove his claim, the respondents No.2 and 3 have been able to disprove the

claim of the appellant. It is seen that â€

a. The appellant had admitted in his cross examination that as per Ext.3(A), his service was transferable to any other field location or to any

Department in establishment forming part of the organization. He had also admitted that there was no written or verbal undertaking by the respondents

that he would not be transferred out of Guwahati. He has admitted that he had received instructions from his superiors to join his posting at Nagpur.

Thus, transfer, being an incidence of service, the non- joining at his transferred place and post amounts to insubordination.

b. The appellant (PW-1) had stated in his cross examination that according to him, “insubordination†is if he refuses to obey the direction of the

seniors. He had admitted in his cross examination that the senior officers of the company had issued direction to him to resume duty at Nagpur, but he

could not go due to his ailment. Thus, in the opinion of this Court, as the appellant could not prove his purported ailment, the omission to obey his

superiors by not joining at the transferred post at Nagpur must be held to be an act of insubordination.

c. Moreover, the appellant has specifically admitted that as per clause 10 [Ext.3(B)], his employment/ services can be terminated by the Company by

giving him 30 days’ notice in writing or on payment of 1 (one) month’s salary in lieu of notice. Thus, the service was contractual and

determinable in nature. Hence, the specific performance of such contract is barred under Section 14(1) (c) of the Specific Relief Act, 1963.

d. The appellant had admitted in his cross examination that he did not lead any evidence to prove his entitlement to Rs.63,59,750/-.

e. This Court had held in judgment dated 29.09.1999, passed in CRP No. 128/99 that no case of mala fide transfer was made out and the said finding

had attained finality. This finding cannot be said to be only a prima facie finding, as such, whether the transfer was mala fide or not is found to be hit

by the principles of “issue estoppelâ€​.

f. Thus, none of the points raised by the appellant stands proved in favour of the appellant in any manner whatsoever.

(36) This brings to one more vital issue on which the learned counsel for the appellant has laid much stress, which is about the competency of Sri

Vinod Shetty, who was examined by the respondent to represent the respondent and to give evidence on its behalf. In this regard, it is seen that the

said DW-1 had not been confronted with any question on his competency at the time of his cross- examination. It is seen that in the verification

appended to the evidence- on â€" affidavit, the DW-1 had deposed had mentioned in paragraph 37 that the statements made in paragraphs 1 to 26

were true his information received from the various officials of the erstwhile defendant No.1 Company and the defendant No.2 Company and from

the records produced in respect of the instant case. Thus, the said DW-1 is found to have given his evidence on the basis of records. Moreover, by

virtue of the Power of Attorney dated 25.11.2006 (Ext.A), the DW-1 was authorized to represent, appear and act in all original and appellate Civil,

Revenue and Criminal Courts for the respondent No.2, as such, giving evidence is an intrinsic part of his job to represent the respondent No.2, and if a

witness is holding a power of attorney to file and represent a Company in litigation, this Court is of the opinion that no further, specific and/or separate

empowerment is needed to the said attorney to give evidence. Thus, in any view of the matter, this Court is unable to hold that the DW-1 had no

competency to represent the respondent No.2 and 3 or that his was not authorized to adduce evidence.

(37) Moreover, in this case, the respondent No.1 Company had merged with the respondent No.2 Company under the Scheme of Amalgamation,

approved by the Hon’ble Bombay High Court by order dated 07.02.2003. Thus, under Clause 8 of the Scheme of Amalgamation [Ext.D(1)], that

all legal proceedings by or against the erstwhile Respondent No.1 Company pending or arisen before the appointed date i.e. 07.02.2003, would

continued and be enforced by or against the respondent No.2 Company. This Court does not envisage that the respondent No.1, which had been

wound-up without dissolution by a Company Court, can appear in suits and proceedings after the effective date of his winding up upon a Scheme of

Amalgamation. Thus, only the respondent No. 2 and 3 can now continue the litigation by operation of Section 394(1)(iii) of the Companies Act, 1956.

Hence, as the DW-1 was deposing on the basis of a valid power of attorney of the respondent No.2 Company, the competency of DW-1 to depose as

witness for Respondent No.2 and 3 cannot be questioned. Therefore, on facts, the case of S. Kesari Hanuman Goud (supra), cited by the learned

Counsel for the appellant is distinguishable. For the reason cited above, even the decision of the case of Man Kaur (supra) does not apply in this case

because the suit in that case was for specific performance of contract where readiness and willingness to perform his part of the contract was a fact

to be decided and in that connection, it was held that if a power of attorney had no personal knowledge, he cannot depose to prove readiness and

willingness, which is not the facts of the case in hand because the respondent has inherited the litigation by operation of law as provided under Section

394(1)(iii) of the Companies Act, 1956. In this connection, it must be remembered that procedural law is a mere handmaid of justice, as such, when by

operation of law, service related litigation is inherited by a Company, there is no infirmity if a persons who is in employment with the transferee

company and holding a valid power of attorney deposes on the basis of record. The competency of such witness cannot be challenged at the appellate

stage and that to after his competency is not questioned while the said DW-1 was being cross â€" examined.

(38) If principle as propounded by the learned counsel for the appellant is accepted, then majority of suits and proceedings involving the Union and

State Government, Banks, Financial Institutions and Public Sector Undertakings would invariably fail, because officers in these organizations get

transferred and retired periodically. Moreover, it is quite possible that over a period of time, one set of transaction might have been dealt by various

officers at various levels and it may not be possible to trace-out the present residence of such officers after they had retired and/or left service so as

to produce such persons as witnesses. In the present case in hand, the appellant had not been able to show that the competency of the said DW-1 had

been successfully demolished during his cross examination. Thus, in the opinion of this Court, the competency of DW-1 could not be demolished.Â

(39) The ratio of the case of Bank of India (supra) and Tata Engineering etc. (supra) do not apply in this case, because there is no ambiguity in the

construction of the terms and conditions of appointment of the appellant. The appellant had admitted his cross examination that in Ext.3, only those

terms which were inconsistent with Ext.1 was changed. It is also seen that the appellant did not take any stand in the suit that there was any ambiguity

in the construction of his terms of appointment. The construction of terms and conditions contained in Ext.1, Ext.2 and Ext.3 is not required to be gone

into because while clause 10 [Ext.3(B)] permits termination of the appellant with 30 days’ notice, Clause- 11 [Ext.3(A)] permits transfer of

appellant to anywhere in the Country. Therefore, in the opinion of this Court, the act of insubordination by not joining the transferred place of posting is

a valid ground for termination from service.

(40) As mentioned herein before, it is reiterated at the cost of repetition that the appellant had admitted in his cross examination that in Ext.3, only

those terms which were inconsistent with Ext.1 was changed. Thus, it is the version of the appellant in his cross examination that there was a change

in terms of employment. Thus, there is no denial that there was no novation of contract within the meaning of Section 62 of the Contract Act, 1972.

Even assuming that there was no novation of contract, then also, the power of the respondents No.1 and 2 to terminate the employee for act of

insubordination cannot be taken away, even if there was no termination clause in the contract of employment between the parties. In this regard, the

ratio laid down in the case of Pearlite Liners (P) Ltd. (supra) is found to be applicable, because in the said case, it has been held that non-compliance

with a valid order of transfer can lead to termination from service and other appropriate action by the employer.

(41) The learned counsel for the appellant has placed reliance on the case of Executive Committee of Vaish Degree College (supra) to project that

the appellant was not seeking restoration of his service, but he was seeking damages and compensation, which was permissible in law. In this regard,

there is no quarrel with the said ratio. But in the present case, as discussed herein before, the appellant has not been able to prove his monetary claim.

(42) Thus, in view of the discussions above, the point of determination is answered in the affirmative and against the appellant by holding that the

judgment and decree passed by the learned trial court is found to be sustainable on facts and in law. Hence, this appeal stands dismissed. However,

there shall be no order as to cost of this appeal. Let the LCR be also returned.

(43) Let a decree be drawn up.