Skip to content


S.M. Mohandas Vs. Esso Standard Eastern Inc. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Judge
Reported in(1973)ILLJ59Mad
AppellantS.M. Mohandas
RespondentEsso Standard Eastern Inc.
Cases Referred and Dhanraj Mills Ltd. v. S. N. Boobna I.L.R.
Excerpt:
- - howard over the phone and complained to him against this nomination of mr. he also stated that he felt sorry that he did not have time to discuss the matter with the plaintiff prior to leaving but he requested the plaintiff to consider his point of not attending office, as he would have no alternative but to consider that the plaintiff has let personal feeling overcome this discipline they required to work together (sic). from this communication, it is clear that during the course of the telephonic conversation, the plaintiff told mr. 3.). he stated in that communication that he would like to reiterate at that stage very emphatically that the question of discipline has nothing to do with his desire not to attend office from that day. on may 27, 1963. he was no doubt happy about the.....ismail, j.1. the facts of this case to a very great extent aw not in dispute arid mostly they are borne out by documentary evidence in the form of correspondence, notices, agreements and receipts which have been filed by consent of parties in this case as exs. p1 to p29. since these documents have been filed by consent of parties, they have not been marked separately as plaintiff's documents or defendant's documents and they have been given a single serial number as ex. p series. even in relation to the oral evidence, the only evidence is that of the plaintiff as p.w. 1 who has spoken to his case. the field of controversy in relation to facts is very very limited and i shall refer to the same later. x2. the plaintiff, who is a b.e. (civil) was appointed as a road engineer in the service.....
Judgment:

Ismail, J.

1. The facts of this case to a very great extent aw not in dispute arid mostly they are borne out by documentary evidence in the form of correspondence, notices, agreements and receipts which have been filed by consent of parties in this case as Exs. P1 to P29. Since these documents have been filed by consent of parties, they have not been marked separately as plaintiff's documents or defendant's documents and they have been given a single serial number as Ex. P series. Even in relation to the oral evidence, the only evidence is that of the plaintiff as P.W. 1 who has spoken to his case. The field of controversy in relation to facts is very very limited and I shall refer to the same later. x

2. The plaintiff, who is a B.E. (Civil) was appointed as a road engineer in the service of the Standard Vacuum Oil Company the predecessor-in-interest of the defendant herein. There was a contract in this behalf dated October 27, 1947 marked as Ex, PI. The salary of the plaintiff was fixed as Rs. 300 per mensem and the appointment was to be effective from November 1, 1947. Ex. PI says that the plaintiff would be on probation for a period of 12 months and if during that period his services proved unsatisfactory or unnecessary to the company, the company reserved the right to discharge the plaintiff without notice or pay in lieu of notice and would pay the plaintiff only the proportionate salary due for the number of days worked during the month concerned. A further clause in that agreement is:

If at the end of twelve months your services are considered satisfactory by us your name will automatically be added to our regular staff pay roll. Thereafter your employment: will be subject to the usual condition of one month's notice on either side before either you can be discharged (except for criminal reasons) or you can leave our employ of your own accord.

The said document further states that the appointment was made on certain terms and conditions which are enumerated as (a) to (sic) in Ex. PI itself. After this appointment, he was promoted as Assistant Superintendent in April, 1951 and in April, 1952 he was promoted as territory superintendent and was posted at Ernakulam. In 1959 he was promoted as operations manager in Madras and by a communication dated June 29, 1959 marked as Ex. P2. the plaintiff was confirmed in the post of territory operations manager effective from July 1, 1959, on a salary of Rs. 1,900 per month. While the plaintiff' was serving as operations manager, certain events took place on April 9, 1963. According to the plaintiff, whenever the territory manager was on leave or absent on tour, for a period of one year prior to April, 1963, it was the plaintiff who was acting as territory manager. However, on April 9, 1963 he received a notice to the effect that one Mr. Hosangady who was the sales manager, was appointed to act as territory manager, when the territory manager Mr. H. H. Howard went on tour to Bombay. As soon as the plaintiff received this notice, he was upset and he contacted Mr. Howard over the phone and complained to him against this nomination of Mr. Hosangady instead of himself as the acting territory manager. There is some dispute as to what transpired at this telephonic conversation which I shall refer to later. But on the same day Mr. Howard sent a note to the plaintiff, marked as Ex. P. 3. In that note, Mr. Howard stated that he would appreciate the plaintiff reconsidering his statement of leaving the office, if Mr. Hosangady acted during Mr. Howard's absence. Mr. Howard further stated that after his confirmation a sales manager should act for the manager during his absence and that was his feeling and he expected the plaintiff to accept it as a policy without personal implications, as the same would be implemented if not then sometime the same year. He also stated that he felt sorry that he did not have time to discuss the matter with the plaintiff prior to leaving but he requested the plaintiff to consider his point of not attending office, as he would have no alternative but to consider that the plaintiff has let personal feeling overcome this discipline they required to work together (sic). From this communication, it is clear that during the course of the telephonic conversation, the plaintiff told Mr. Howard that if Mr. Hosangady was acting as the manager, he would not attend office. On the other hand the plaintiff states in his evidence that Mr. Howard repented for his having nominated Mr. Hosangady as his nominee to act in his place, but contrary to that regret or repentence expressed by him over the phone he sought to justify the same in Ex. P3. Next day namely, April 10, 1963, the plaintiff sent a communication to Mr. Howard marked as Ex. P4, in which he acknowledged the receipt of Mr. Howard's note dated April 9, 1963 (Ex. P. 3.). He stated in that communication that he would like to reiterate at that stage very emphatically that the question of discipline has nothing to do with his desire not to attend office from that day. He also stated that the impression created in his mind after the telephone conversation was that Mr. Howard would restore the status quo ante and that the plaintiff would be in charge of the territory, but the note was just the opposite. Ultimately he wound up by saying that the turn of events has affected his morale very much and he most certainly felt that with this frustration he would not. be doing justice, if he continued to work. So he decided to avail his earned leave from April 10, 1963 for one month and 17 days as originally scheduled. On April 1, 1963 Mr. Howard wrote to the plaintiff stating that privilege is given at the convenience of the company and only with prior approval and though individual consideration is naturally taken into view, under no circumstances can personal feelings overrule the policy and/or the exigencies of company business. Therefore, Mr. Howard requested the plaintiff to report back to the office immediately. This has been marked as Ex. P5. On the same day the plaintiff had a talk over telephone with Mr. Howard and on the morning of 16th April also he had a further talk. On April 16, 1963 the plaintiff sent a note referring to this telephonic conversation and stated that during the said conversation he had advised Mr. Howard that he had to leave the station that day to attend to some personal matters and he hoped to be back on Friday and he would see Mr. Howard on Saturday, April 20, 1963 as discussed and decided. This letter of the plaintiff to Mr. Howard is marked as Ex. P 6. Obviously on April 20, 1963, the plaintiff had a talk over the phone with Mr. Howard and what transpired during this conversation is again a matter of controversy. But on April 22, 1963, the plaintiff sent a letter to Mr. Howard wherein he stated that Mr. Howard had made a suggestion to the plaintiff over the phone on April 20, 1963 that the plaintiff should continue to be on leave for some further time and in that letter he asked Mr. Howard to confirm the same. The letter further states : 'I am, however, upset about your having told me during the discussion of April 20th, that I should not report for duty as operations manager. I wish to make it clear that. I for my part am prepared to report for duty to discharge my duties as operations manager any time cancelling the leave, if you so wish. Would kindly inform me by return post whether I can report for duty forthwith'. This communication has been marked Ex. P7. Thereafter on April 27, 1963, the plaintiff had a telephonic conversation with Mr. Howard and confirmed the same by a letter dated April 27, 1963, which has been marked as Ex. P8. In that letter the plaintiff stated that he was confirming the telephonic advice to him that he could continue to be on leave. The next important event is the communication of May 13, 1963 sent by Mr. Howard to the plaintiff, marked as Ex. P9. In that letter, Mr. Howard confirmed that the plaintiff might continue to be on leave until the expiry of his total accrued privilege leave, which would be till May 27, 1963. Mr. Howard also added in that letter: 'I have just received formal advice from general manager's office to the effect that you have been transcended to the general manager's office, Bombay. Please report to Mr. R. W. Camp of G.M.O. operations on May 27, 1963'. This letter was received by the plaintiff on May 20, 1963, since he was away from Madras. On receiving that letter, the plaintiff wrote a letter to Mr. Howard on May 20, 1963 which has been marked as Ex. P10. In that letter, he stated that he noted that he was transferred to G.M.O. Bombay and ho was to report to Mr. R.W. on May 27, 1963. He was no doubt happy about the transfer to G.M.O. but he wished to point out that he (Mr. Howard) had given him a very short notice and in the next six days available, it would not be possible for him to make the necessary arrangements for himself and his family to move to Bombay. He, therefore, wanted time till June 28, 1963, to report Mr. R.W. Camp at Bombay. The letter ended with: 'In this connection I request you to ascertain from G.M.O. and advise one the status and position to which I will be assigned in G.M.O. before I leave Madras'. To this Mr. Howard sent a reply on May 21, 1963 which has been marked as Ex. P-11. In that letter after having pointed out that to cover both possibilities regarding the plaintiff's residence, i.e., Madras and Nagercoil, the original was sent to Madras and a copy was sent to Nagercoil. Obviously referring to the letter dated May 13, 1963, and he stated that it would not be possible to extend the plaintiff's leave and arrangements should be made by the plaintiff to reach Bombay and report to Mr. R.W. Camp for assignment on May 27, 1963. On May 22, 1963 the plaintiff sent a further communication to Mr. Howard which has been marked as Ex, P 12. In that communication, he reiterated his request for a longer time for reporting at Bombay, after pointing out certain difficulties in his being called upon to report at Bombay at such a short notice. He further pointed out that to his specific request in the letter to which (sic) he would be assigned on joining duty at Bombay, Mr. Howard had not given any answer. He stated : 'You will of course realise that it will not be possible for me to join duty at Bombay in a position inferior to that now held by me under contract of service. Kindly, therefore, confirm that the position I will be assigned will be equivalent to that of an operations manager of a territory'. He also stated in that letter that since his leave was expiring on May 27, 1963, he would join duty at Madras as operations manager and requested Mr. Howard to confirm that arrangement. On May 23, 1963 Mr. Howard sent a reply to the plaintiff which has been marked as Ex. P13. In that letter Mr. Howard svated that the plaintiff had been told in the middle of April verbally that he would not be resuming duty in this territory and that this postion remained unchanged. Mr. Howard further stated that at that time the plaintiff indicated his acceptance of that position and, here fore, they presumed that arrangements had been made by the plaintiff to consider the problem attendant to his being transferred to another area. In relation to his request for rejoining at Madras as operations manager, Mr. Howard stated that it was not possible, since his old assignment had then been lined by a new person. In relation to his assignment at Bombay Mr. Howard stated: 'We suggest you to report to Mr. Camp as recommended. Failure, and we trust this does not arise, will lead us to the unfortunate conclusion that you are unwilling to accept an assignment nominated at management's discretion. If you remain unwilling to proceed to Bombay, we would have no alternative regrettable though it may be to consider this as an attitude of indiscipline and to reserve the right to take suitable action.' There is a note added to his letter which states: 'We presume that initially you will be going to Bombay alone on 27th. After reporting to Mr. Camp on 26th you may discuss with him the dome's problems mentioned in your letter.' Thereafter the plaintiff wrote a letter Ex. P14 dated May 24, 1963. In this letter he complained that one month's time informally given to members of the staff who are transferred from on territory to another was denied to him. He further proceeded to state that he was pained to note that once again Mr. Howard had not answered for the question raised by the plaintiff in his letters dated May 20 and 22, 1963, relating to the position which he would be holding at Bombay, The letter further stated:

The reason for my requiring an answer to this question was that during our conversation on April 20 you had informed me that, for certain personal reasons, you did not wish to continue me as operations manager and you further hinted that you intended transferring me to Bombay in a capacity inferior to that held by me as you had the right to do so. As this was mentioned only in passing I did not take serious notice of the matter but when 1 received your letter of May 13 I apprehended that the letter was one in implementation of what had been stated by you during the conversation of April 20. Your failure to meet the point, your insistence that I should join duty at Bombay in a post which was not disclosed to me, your refusal to allow me to discharge my duties as operations manager here Ht Madras even though factually to my knowledge even today it is my assistant who is discharging those functions and lastly the alleged urgency of transfer to an undisclosed post confirm my worst fears that the transfer to Bombay is only to humiliate me in an attempt to compell me to resign from the company.

The contract of service between me and the company is in relation to the post of operations manager of the territory. If I am compelled to discharge the duties in a lower post, it amounts to terminating the contract of service and a reappointment in a lower post ...... In the absence of any such reply I have no other alternative except to presume that you intend allocating to me a post inferior to that of operations manager of the territory, which offer I am entitled to decline. May I once again reiterate that I am ready and willing to serve the company in the capacity of operations manager of a territory or in any equivalent or higher post at all times.

Towards the end of his letter, he further requested Mr. Howard to confirm that this transfer was not in implementation of his (Mr. Howard's) statement made in the conversation of April 20, 1963 to transfer the plaintiff outside Madras in a lower post but that the post the plaintiff was to hold in Bombay was equivalent to that of an operations manager of a territory. At this stage it is important to refer to one other fact. On April 21, 1963 the plaintiff had a telephonic conversation with Mr. C. B. Thomas, the general manager of the company at Bombay and he has produced the confirmation of the Indian Posts and Telegraphs Department for such a call having been booked and the same is marked as Ex. P. 24. The case of the plaintiff is that he told Mr. Thomas on that date of what Mr. Howard told him the previous day, and Mr. Thomas promised the plaintiff that he would look into the matter. The letter dated May 24, 1963 marked as Ex. P. 14, did not reach Mr. Howard immediately who had left for Bombay by that time. From Bombay on May 26, 1963 Mr. Howard had a telephonic conversation with the plaintiff and the plaintiff read over the entire letter dated May 24, 1963 to Mr. Howard over the phone. Thereafter, the plaintiff wrote the letter dated May 27, 1963, marked as Ex. P. 16, to Mr. Howard In that letter, he referred to his letter dated May 24, 1963 and the telephonic talk he had with Mr. Howard at Bombay on May 26, 1963, and his having read over the phone the entire letter to him. Having said that much, he further stated:

I am sorry that I am unable to accept your suggestion that I should at present report at Bombay in a lower post, even though, according to you, as in the case of Mr. P.V. Menon who had been posted to a lower position, but had subsequently been promoted in due course to higher position, I too could not expect to be given the same treatment.

Thereafter Mr. Howard wrote a letter to the plaintiff dated May 30, 1963 which has been marked as Ex. P17. In the course of that letter Mr. Howard told the plaintiff, 'You are obliged to serve the company in any post it may choose to assign you'. He referred to the events that had happened on April 9, 1963 and subsequently and stated :

In view of the said developments you were verbally advised on 16th and 20th of April, 1963 by the territory manager that the company had no longer confidence in your willingness to abide by its instructions and decisions and as such it would not be in the interest of the company to retain you as operations manager of Madras territory....

We have considered your letter of 24th May, 1963 which reached the undersigned on the 27th of May at Bombay. Notwithstanding what is contained in that letter and in your letter of the 27th May, 1963, we reiterate our instructions to you to report to general manager's office, Bombay. You are, however, given time till June 4, 1963. As you are aware, failure to do so will render you liable to instant dismissal.

Then on June 1, 1963, the plaintiff wrote a letter to Mr. Howard, which has been marked as Ex. P 18. In that letter, he referred to all the events that had taken place earlier and stated:

Anyway the letters which have passed between us and the conversation which had taken place between me on the one hand and yourself and Mr. C. B. Thomas on the other have established beyond doubt the fact that in insisting on my joining. Bombay in a post inferior to that covered by my contract of service, the company has committed breach of contract...I am not prepared to join Bombay in any post inferior to that of operations manager of a territory in which post I was confirmed by your letter of 29-6-1959. Under the circumstances, I have no other alternative but to resign from the company which I have served faithfully and to the best of my ability for the last 15J years. lam, therefore, herewith tendering my resignation.

3. By Ex. P 20 dated June 4, 1963 Mr. Howard acknowledged the receipt of this letter and stated that since the plaintiff had been transferred to general manager's office, Bombay, the plaintiff's letter was being for-warded to that office for further action. By Ex. P21 dated June 5, 1963, the Bombay office represented by the assistant general manager informed the plaintiff that his resignation was accepted as of June 1, 1963 This letter also stated : 'We regret to say that you have made certain allegations in your letter under reference which are incorrect'. Thereafter, on 2nd July, 1963, the plaintiff was paid two sums of money, namely, Rs. 40 487.22 representing the amount due to him from the provident fund and a sum of Rs. 36,181.45 representing the dues from the company upon the plaintiff's separation, effective from June 1, 1963. The plaintiff received the two amounts, but did not sign the receipts enclosed along with the cheques, but sent independent receipts marked Exts. P 28 and P 29, stating that he was receiving the amounts without prejudice to his rights arising out of the breach of contract by the company. These receipts are dated 16th August, 1963. On September 6, 1963, a lawyer's notice was sent on behalf of the plaintiff to the company complaining of breach of contract on the part of the company and claiming a sum of Rs. 3,14,704 as compensation by way of damages for the unilateral and illegal termination of his contract of service in the post of territory operations manager. This amount was arrived at on the basis that the plaintiff was drawing a salary of Rs. 2,800 per mensem and he was entitled to serve the company till the completion of the age of 55 >and in that capacity he would have received a sum of Rs. 2,91,200 and also a sum of Rs. 23,504 being the company's contribution towards the provident fund. This notice has been marked as Ex. P 26. On September 25, 1963 a reply was sent by the company through its lawyer to the plaintiff's lawyer repudiating the liability of the company and stating that the plaintiff had utilised the opportunity to resign from service of the company to receive his separation benefits and venture into business of his own. It is after this exchange of notices the present suit has been filed by the plaintiff for recovery of compensation as damages. Though in the notice itself the plaintiff stated that he is entitled to a sum of Rs. 3,14,704 as compensation, in the plaint he restricted it to a sum of Rs. 50,100,

4. Before I proceed to deal with the facts in controversy, I must refer to one other fact at this stage. On May 27, 1963, the plaintiff wrote a letter to the Chairman, Madras Chamber of Commerce, Madras, stating that he was unable to continue as the representative of the Madras Chamber of Commerce on the Zonal Railway Users' Consultative Committee, in view of his transfer to Bombay and his letter has been marked as Ex. P15 in order to show that the plaintiff was willing to go to Bombay on receipt of the orders of transfer. The reply sent by the Madras Chamber of Commerce in appreciation of the work of the plaintiff has been marked as Ex. P19 and it is dated June 3, 1963.

5. The controversy in relation to the facts which have to be mentioned is as to what transpired in the telephonic conversation between the plaintiff and Mr. Howard on April 9, 1963. As a matter of fact, the plaint itself does not give any particulars regarding this. The plaint merely mentions that there were certain misunderstandings during the early part of 1963 between the territory manager Mr. Howard and the plaintiff. The written statement also refers to that, namely that in April, 1963 the plaintiff was responsible for a grave act of insubordination and indiscipline in that he (the plaintiff) not only questioned the decision of the territory manager, but also refused to accept it in spite of repeated advice. It is only, on evidence and with reference to the documents I have mentioned already, the details as to what happened on April 9, 1963 have been given. One point of controversy is whether Mr. Howard during the course of his conversation with the plaintiff regretted for having appointed Mr. Hosangady as the acting territory manager during his absence or he did not do any such thing. The plaintiff says that Mr. Howard regretted, but his note dated the telephonic conversation (sic). But, however, nothing turns on this. Therefore, no useful purpose will be served in pursuing this matter.

6. The second point of controversy in relation to the facts is as to what Mr. Howard told the plaintiff during the course of his telephonic conversation on April 20, 1963. As I pointed out already, when the plaintiff put In writing the substance of what transpired in the telephonic conversation in Ex. P 7, he did not say that Mr. Howard told him that he would be transferred to Bombay. All that the plaintiff says in that letter is that he was, however, upset about Mr. Howard having told him during the discussion of April 20, 1963, that the plaintiff should not report for duty as operations manager. It is for the first time only in his letter dated May 24, 1963, marked as Ex P 14, she plaintiff refers to the fact that Mr. Howard told the plaintiff on April 20,1963 that, the plaintiff would be transferred to Bombay to a lower post.

7. The third point of controversy with regard to the facts is whether Mr. Howard told the plaintiff on April 20, 1963, that the plaintiff would be transferred to Bombay as an assistant to one Mr. V. Srinivasan, who was only an operations assistant at Bombay. This fact, for the first time, was stated by the plaintiff only in his resignation letter dated June 1, 1963, marked as Ex. P 18, and it had not been mentioned in any of the letters earlier. Therefore, on this ground also, it was contended on behalf of the defendant that Mr. Howard did not make any such statement.

8. I have already referred to the case of the defendant in the written statement with regard to what happened in April, 1963. The written statement further proceeded to state that the company had a right to terminate the services of the plaintiff on one month's notice and it denied the allegations of the plaintiff. In paragraph 6 it is stated :

The defendants do not admit that the plaintiff was ever informed that he had been transferred to a lower post. The defendants state that all that the plaintiff was informed was that he should report to the operations manager at general manager's office. There was no question of the plaintiff having any demotion.

The defendant also denied the other averments of the plaintiff in detail.

9. On these pleadings, the following issues were framed for trial:

(1) Does the transfer of the plaintiff to Bombay amount to a breach of the terms and conditions of the contract of service ?

(2) Was the plaintiff justified in resigning from his post ?

(3) Is the plaintiff entitled to damages as prayed for ?

(4) Has the Court no jurisdiction to try the suit ?

(5) To what relief, if any, are the parties entitled? It will be seen from the facts narrated above that the issues so framed do not reflect the real points in controversy between the parties. Consequently the issues will have to be recast and 1 shall do so after discussing the evidence and the points in controversy between the parties.

10. The real and the most important point in controversy is whether there has been a breach of contract committed by the defendant-company with reference to the contract of service of the plaintiff. Really speaking, the learned Counsel for the plaintiff as well as the plaintiff in the witness box conceded that the company had a right to transfer the plaintiff to an equivalent post at Bombay. Therefore, the subject-matter of the grievance of the plaintiff is not his transfer from Madras to Bombay, but it is really the alleged transfer to a lower post at Bombay. Consequently the question that really arises for consideration is: Was the plaintiff transferred to a lower post at Bombay ?

11. Before answering that question, I shall refer to the events that have taken place on April 9, 1963. As 1 said already, it is the case of the plaintiff that for a year prior to that date, he was being nominated to act as territory manager, whenever the territory manager went on leave or on tour. But on that particular occasion Mr. Hosangady was nominated to act as territory manager. The plaintiff conceded that Mr. Hosangady was not a subordinate to him but was an officer of equal status. In chief examination, the plaintiff stated that Mr. Hosangady was junior to him in service. But in his cross examination he stated: 'I could not answer that question. It is possible that he is junior'. Thus it is clear in nominating Mr. Hosangady to act as territory manager during tile absence of Mr. Howard no person subordinate or junior to the plaintiff was asked to act as territory manager. The learned Counsel for the plaintiff also conceded that the plaintiff did not have any vested right under the contract of service or any rule to be nominated as acting territory manager, whenever the permanent incumbent of that office went on leave or on tour. Consequently, when the plaintiff made a grievance of his not being nominated to act as territory manager but Mr. Hosangady being nominated to act as territory manager, in law at least, the plaintiff could not have any grievance, whatever might have been his personal feelings. Not only the plaintiff made an issue of that, but hs went so far as to say that if Mr. Hosangady was to act as territory manager, he would not attend cilice. It was this matter probably that irritated Mr. Howard on April 9, 1963, and only because of the irritation Mr. Howard referred in Ex. P 3 to 'discipline' that was required to work together. Mr. K. K. Venugopal, learned Counsel for the plaintiff, wanted to build up a case on the basis of the use of the word, 'discipline' in this letter stating that even then there was a threat uttered by Mr. Howard to take disciplinary action against the plaintiff. As a matter of fact though it is not possible to inter any such thing from the use of the word, 'discipline' in that letter, still it is obvious that Mr. Howard was certainly not pleased with the Stanly taken by the plaintiff. Not merely that. By his letter dated April 10, 1963, marked as Ex. P 4, the plaintiff said that he was availing himself of the privilege leave from that day onwards for a period of 1 month and 17 days as originally scheduled. Though Ex, P 4 states, 'as originally scheduled' the plaintiff in his evidence admitted that according to the original schedule his privilege would commence only from 15th April, 1963 and not from 10th April, 1963. Consequently, it is absolutely clear that when Mr. Hosangady was nominated as the acting territory manager instead of the plaintiff, the plaintiff felt aggrieved and at the same time decided not to attend office because of that nomination Mud proceed on his privilege leave, which was not originally scheduled to commence on that date. It is this matter which has been referred to by Mr. Howard in his letter dated April 15, 1963, marked as Ex. P 5. Therefore, it is abundantly clear that by 15th April, 1963, Mr. Howard was not very much satisfied with the conduct of the plaintiff in his protesting against the nomination of Mr. Hosangady and his proceeding on privilege leave and it is quite likely that Mr. Howard came to the conclusion that the plaintiff should not be retained any further in his office. Consequently even though the plaintiff says that it is only for the first time on April 2, 1963, during the conversation between the plaintiff and Mr. Howard, that Mr. Howard mentioned about the possibility of the plaintiff ceding transferred to Bombay, I am prepared to believe that the reference to the possible transfer of the plaintiff to Bombay should have been made even on April 16, 1963 itself. As a matter of fact, the letter dated May 30, 1963 marked as Ex. P 17, addressed by Mr. Howard to the plaintiff specifically states that the plaintiff was verbally advised on 16th and 20th of April, 1963 by the territory manager that the company had no longer confidence in his (plaintiff's) willingness to abide by its instructions and decisions and as such it would not be in the interest of the company to retain the plaintiff as operations manager of Madras territory. Therefore, by middle of April, 1963, Mr. Howard had decided that the plaintiff should not continue as operations manager in Madras territory and he must be transferred to Bombay.

12. The next question for consideration is whether Mr. Howard told the plaintiff that he would be transferred to a lower post at Bombay. As I pointed out already, after April 20, 1963, the plaintiff wrote a letter to Mr. Howard referring to the conservation which he had with Mr. Howard on April 20, 1963. In that letter, no reference whatever was made about Mr. Howard telling the plaintiff that he would be transferred to a lower post at Bombay. Subsequently, another letter was written on April 27, 1963. Even after the receipt of the formal advice regarding his transfer to Bombay, the plaintiff had written letters on May 20 and May 22, 1963. But in none of this letters the plaintiff had referred to the fact that on April 20, 1963, Mr. Howard told the plaintiff that tie would be transferred to a lower post at Bombay. It is only for the first time in his letter dated May 24, 1963, marked as Ex. P14, the plaintiff stated that on April 20, 1963 Mr. Howard told him that he intended to transfer the plaintiff to Bombay in a capacity inferior to that held by him, as he had the right to do so. Mr. Govind Swaminathan, learned Counsel for the defendant, pointed out that in view of the fact that the plaintiff was in the habit of putting on record every telephonic conversation or personal conversation he had with Mr. Howard, as he, the plaintiff, had not recorded in the letters written by him immediately after April 20, 1963 that Mr. Howard had told the plaintiff on April 20, 1963 that the plaintiff would be transferred to a lower post at Bombay, the case of the plaintiff that Mr. Howard had made such a statement on April 20, 1963, should not be believed. For more than one reason, I am accepting the version of the plaintiff that on April 20, 1963, during the conversation between the plaintiff and Mr. Howard, Mr. Howard told him about the possibility of the plaintiff being posted to a lower post at Bombay. In the first place, on April 21, 1963, the plaintiff had a telephonic conversation with Mr. C. B. Thomas, the general manager at Bombay. If the plaintiff had only been told that he would be transferred to an equivalent post or a higher post at Bombay, there would have been no occasion for the plaintiff to make a frantic trunk call to Mr. Thomas on April 21, 1963. Secondly, though Mr. Howard was not in the service of the defendant-company and was abroad at the time when the suit was tried, but he was there when the suit was filed and it was ho who replied to the letter of the plaintiff dated May 24, 1963. If Mr. Howard had not made any such statement as alleged by the plaintiff nothing could have been easier for Mr. Howard than to say that he did not make any such statement. Though the letter dated May 30, 1963, marked Ex. P17, which is the reply to letters dated May 24 and May 27, 1963, of the plaintiff contains a general statement. It is unnecessary for us to deal with the several statements made in your letters of the 24th and 27th May, 1963, which are factually incorrect and do not contain a true picture of our conditions of service', there is no specific denial of this particular allegation made by the plaintiff. At the same time it can be easily explained, why in his letter dated April 22, 1963, he did not record this part of the statement of Mr. Howard said to have been made on April 20, 1963. As I pointed out already, on April 21, 1963, the plaintiff had a telephonic conversation with Mr. C.B. Thomas. If, in his letter dated April 22, 1963, he was going to put on record the statement about the possible transfer to a lower post at Bombay said to have been made by Mr. Howard on April 20, 1963, he would have had to mention the fact that he had a telephonic conversation the previous day with Mr. C. B. Thomas. Mr. Howard being his immediate superior, realising that even then he had not pleased Mr. Howard by the stand which he took in relation to the nomination of Mr. Hosangady as the acting territory manager, the plaintiff probably did not want to rub Mr. Howard on the wrong side any further and, therefore, he refrained from putting on record on April 22, 1963, the statement made by Mr. Howard on April 20, 1963, particularly when Mr. Thomas had promised the plaintiff that he would look into the matter. For these reasons, 1 accept the case of the plaintiff that about April 20, 1963, Mr. Howard told the plaintiff that the plaintiff would be transferred to a lower post at Bombay. At the same time, I must point out that the probabilities are that Mr. Howard would not have straightaway told the plaintiff that he would be directly transferred to a lower post. When the possibility of a transfer to Bombay was mentioned by Mr. Howard to the plaintiff, the plaintiff might have asked Mr. Howard as to whether there was an equivalent post at Bombay and whether he would be posted to such equivalent post and Mr. Howard might have told him at that time that if there was no equivalent post, he would be posted to a lower post. This, am stating merely from the probabilities of the case, since we do not have the evidence of Mr. Howard to speak to what exactly had happened. Therefore, on this part of the case, I am accepting the statement of the plaintiff that on April 20, 1963, Mr. Howard made such a statement to the plaintiff.

13. As a matter of fact, I have already pointed out that even as early as April 16, 1963, Mr. Howard would have made such a statement about the transfer of the plaintiff to Bombay and at the second conversation, that is, on April 20, 1963, to a further question by the plaintiff, Mr. Howard might have said that if there was no equivalent post available, he would be transferred to a lower post. This is confirmed by the evidence of the plaintiff himself who has stated that in Bombay there is no post corresponding to the post of operations manager of a territory.

14. The next point in relation to this matter is, whether Mr. Howard told the plaintiff on April 20, 1963, that he would be posted at Bombay as an assistant to one Mr. V. Srinivasan who himself was only an operations assistant. On this part of the case, I am unable to accept the version of the plaintiff. The reason is this: The plaintiff pointed out in his letter dated May 24, 1963 to Mr. Howard that he had told the plaintiff on April 20, 1963 that he would be transferred to a lower post at Bombay. There was nothing to prevent the plaintiff from telling at that stage more specifically that Mr. Howard had told him that he would be posted as an assistant to one Mr. V. Srinivasan if really Mr. Howard has so told him on April 20, 1963. The reference to the posting of the plaintiff as an assistant to Mr. V. Srinivasan was made for the first time only in the letter of resignation dated June 1, 1963 and not on any earlier occasion. After the letter, Mr. Howard did not carry on any correspondence with the plaintiff. All that he did after June 1, 1963, was to acknowledge the letter of resignation submitted by the plaintiff and to forward it to general manager's office at Bombay. Consequently, there was no opportunity for Mr. Howard to deny this statement made by the plaintiff in his letter of resignation. Very probably after the plaintiff realised that his transfer to Bombay was certain, he made enquiries as to the possible position he might be assigned there and having come to know that only the post of an assistant to Mr. V. Srinivasan was vacant he put this into the mouth of Mr. Howard as having been said by him during his conversation on April 20, 1963. Even in the letter dated May 27, 1963, after having talked over the phone to Mr. Howard on May 26, 1963 at Bombay the plaintiff referred only to Mr. Howard telling him that the plaintiff might be assigned a lower post at Bombay as in the case of Mr. P.V. Menon and would be subsequently promoted as had happened in his case but made no mention of the possibility of the plaintiff being posted as an assistant to Mr. V. Srinivasan as alleged to have been stated by Mr. Howard on April 20, 1963. Even this letter, namely, the letter of the plaintiff dated May 27, 1963 only confirms my conclusion that Mr. Howard told the plaintiff that he might be posted to a lower post at Bombay without, making a specific mention of the particular post to which he would be posted at Bombay.

15. For these reasons, I am unable to accept that Mr. Howard expressly and definitely told the plaintiff on April 20, 1963 or at any other time that the plaintiff would be posted as an assistant to Mr. V. Srinivasan on his transfer to Bombay. All that I find is that during the conversation on April 16 and April 20, 1963, Mr. Howard hinted to the plaintiff at the possibility of the plaintiff being transferred to Bombay and that too, if necessary, to a lower post at Bombay and the same was repeated during the telephonic conversation on May 26, 1963. There is absolutely nothing to show that Mr. Howard told the plaintiff that he would be transferred as an assistant to Mr. V. Srinivasan at Bombay.

16. The next point for consideration is what exactly is the consequence in law of this representation made by Mr. Howard. The plaintiff has admitted, that there is absolutely nothing in writing to show that the company informed the plaintiff that he was being transferred from Madras to Bombay to a lower post. As a matter of fact, the letter intimating the plaintiff of his transfer to Bombay merely asked the plaintiff to report to Mr. R. W. Camp of G.M.O. Operations, Bombay on May 27, 1963. The letter dated May 21, 1963 also stated that the plaintiff should report to Mr. R. W. Camp for assignment. Therefore, from the company's point of view not a single document has been produced by plaintiff before the Court to show that the company did transfer the plaintiff to a lower post at Bombay. As a matter of fact, this tact was admitted by the plaintiff. But what the learned Counsel for the plaintiff wanted me to do was to draw an inference that the plaintiff was being transferred to a lower post, from social circumstances, namely, (1) to the repeated requests of the plaintiff to intimate to him the post to which he is being assigned at Bombay, there was no reply; (2) the general statement contained in the letters from the defendant-company that the plaintiff was obliged to serve the company in any post it may choose to assign at the management's discretion ; and (3) the plaintiff was not allowed to rejoin the post of operations manager at Madras before he could go and join Bombay office. I am unable to draw the conclusion, the learned Counsel for the plaintiff wanted me to draw from these facts alone.

17. The plaintiff in his evidence admitted that Mr. R. W. Camp is the head of the operation department at Bombay. Therefore, the correspondence that ensued between the parties makes it absolutely clear that at the time when the plaintiff was transferred to Bombay, he was asked to report to Mr. Camp and the post to which he would be assigned at Bombay was not disclosed to him. 1 put a question to the learned Counsel for the plaintiff as to whether there was any obligation on the part of the company to give an assurance to the plaintiff before he left Madras that he was not being posted to a lower post but was being posted to an equivalent or higher post, and the learned Counsel said that there was no such obligation on the part of the company, but with reference to the developments and the background of the relationship between the parties, the defendant-company ought to have given such an assurance. I am unable to accept this argument. Even assuming that Mr. Howard had intended to post the plaintiff to a lower post at Bombay, certainly the posting at Bombay was not in his hands and though he was competent to transfer the plaintiff from Madras to Bombay the posting at Bombay had to be done by Mr. R.W. Camp and there was nothing to prevent Mr. Camp once the plaintiff had reported to him, from assigning the proper position which was due to the plaintiff. Consequently I am unable to hold that the transfer of the plaintiff to Bombay was to a lower post at Bombay.

18. This conclusion of mine will not be affected, even if any finding that Mr. Howard did not tell the plaintiff on April 20, 1963, that the plaintiff would be transferred as an assistant to Mr. V. Sriaivasan at Bombay is wrong because the posting at Bombay was not in the ' hands of Mr. Howard and consequently whatever Mr. Howard might have told the plaintiff with regard to the posting of the plaintiff at Bombay cannot be said to be the action or the conduct of the defendant-company as such. As a matter of fact, the plaintiff himself was fully aware that his posting at Bombay had to be made by the officers at Bombay and not by Mr. Howard and it is only because of this, in his letter dated May 20, 1963 marked Ex. P10, the plaintiff wrote, 'In this connection, I request you to ascertain from G.M.O. and advise me the status and position to which I will be assigned in G.M.O. before 1 leave Madras'. Therefore, in my opinion, even if Mr. Howard had told the plaintiff on April 20, 1963 that the plaintiff might be posted as an assistant to Mr. V. Srinivasan at Bombay that itself would not constitute the defendant-company actually posting the plaintiff at Bombay to a lower position, since that was to be done by the officials at Bombay and it was never done as the plaintiff himself did not report to Mr. R. W. Camp at Bombay.

19. As I pointed out already the fact that the plaintiff was transferred to Bombay was not made a grievance of. In one communication the plaintiff stated that he was no doubt happy about the transfer to G.M.O., Bombay. The entire grievance of the plaintiff was only in relation to his being posted to a lower post at Bombay and not to his transfer from Madras to Bombay. As far as the posting is concerned, I have come to the conclusion, on the evidence placed before me, that there is no direction or communication from the company stating that the plaintiff was being posted to a lower post at Bombay. 1 have already drawn attention to Ex. PI 1 where the plaintiff was requested to report to Mr. R. W. Camp for assignment. That assignment had not taken place.

20. In the light of these facts I hold that the complaint of the plaintiff that he had been transferred to a lower post at Bombay is not made out.

21. Before dealing with the case further, I want to refer to one or two circumstances. Mr. K. K. Venugopal, learned Counsel for the plaintiff, in his anxiety to do the best for his client argued all the possible positions. He stated that there was an independent contract in relation to each promotional post. There was one contract when the plaintiff was appointed as roads engineer and there was another contract when the plaintiff was promoted as terminal superintendent and there was a last contract when the plaintiff was appointed as operations manager. Consequently when the defendant-company committed a breach in respect of one of the most essential terms of this contract relating to the appointment of the plaintiff as operations manager, the plaintiff has a right to put an end to the contract and sue for damages. For this purpose the learned Counsel relied on Section 39 of the Indian Contract Act. The further argument of the learned Counsel was that the resignation of the plaintiff dated June, 1963 was not a voluntary resignation but was forced resignation in the sense that circumstances were created by the company which did not leave the plaintiff any other option but to resign and, therefore, the learned Counsel stated that such a resignation would not be treated as resignation at all but would be treated as dismissal of the plaintiff from service or termination of the plaintiff's service. With regard to this argument of the learned Counsel for the plaintiff Mr. Govind Swaminathan, learned Counsel for the defendant, contended that there is some inconsistency. If the plaintiff had a right to put an end to the contract by virtue of Section 39 of the Indian Contract Act and, therefore, sent in his resignation, he cannot at the same time say that his resignation was a forced resignation and consequently cannot be operative. But in view of the fact that nothing turns upon these features 1 do not pursue the matter further.

22. Mr. Venugopal, learned Counsel for the plaintiff, made it absolutely clear that consistent with the case in the plaint, his only grievance was that the letter dated May 13, 1963. transferring the plaintiff to Bombay to a lower post as alleged by him constituted breach of the contract, committed by the defendant-company and it is on that basis he has claimed damages in this case. As I have already come to the conclusion that the order of transfer of the plaintiff from Madras to Bombay was not accompanied or followed by the allotment or assignment or the appointment of the plaintiff to a lower post at Bombay, the transfer of the plaintiff from Madras to Bombay cannot constitute breach of contract. Here again I want to refer to one other circumstance relied on by the learned Counsel. The plaintiff in his evidence has stated that the contract between the plaintiff and the defendant-company with regard to his appointment as territory manager was not in writing. If it was not in writing, the plaintiff did not in his chief examination state the terms and conditions of the contract between him and the plaintiff. On the other hand plaintiff conceded in his evidence that when he was confirmed as territory manager by a communication dated June 29, 1959, which has been marked as Ex. P 2, there were two important conditions, namely, (1) promotion to the position of territory operations manager and (2) his salary as Rs. 1,900 per mensem. The plaintiff also said in answer to a question put by the learned Counsel for the defendant that the other conditions and terms in the contract Ex. P 1, entered into between the parties at the time when the plaintiff was appointed as roads engineer, continued to govern the relationship between the parties. The plaintiff, however, referred to separation benefit scheme introduced by the company in 1954. Therefore, both according to the learned Counsel for the plaintiff and according to the plaintiff, their case is that the contract of service between the plaintiff and the company was constituted by a combination of Ex. P 1, Ex. P 2 and the separation benefit scheme of 1954, marked as Ex. P25. Therefore, the question that has to be considered is whether the order passed by the company transferring the plaintiff from Madras to Bombay contravened any of the conditions contained in any of these three documents. As far as Ex. P is concerned, I have already stated that it is provided that each party is liable to give one month's notice either before discharge or before leaving. Clause (a) of the terms and conditions mentioned in Ex. P1 was : 'that you may be transferred to any post at an installation or upcountry should the management so desire'. I have already referred to the provisions contained in Ex. P2. At this stage, it is necessary to refer to the provisions contained in Ex. P25, namely, the Separation Benefit Scheme. According to this scheme benefits are sought to be provided by way of compensation, pension and other benefits on the termination of the services of an employee with the company. For this purpose, the normal date of separation was taken to be the date of retirement which was fixed at the completion of the 55th year of a person. Based on this the argument of Mr. Venugopal was that the plaintiff was entitled to continue as operations manager till ha completed the age of 55 years and since the plaintiff was transferred to a lower post, there has been a breach of that contract. In reply to that Mr. Govind Swaminathan, learned Counsel for the defendant, pointed cut-that the services of the plaintiff could have been terminated by one month's notice on either side and the plaintiff could not contend that he had a right to continue in the post till he completed the age of 55 years. Mr. Venugopal contended that the confirmation of the plaintiff in the post of operations manager under Ex, P 2 gave him a right to that post till the age of superannuation and obviously this contention was based on the decision of the Supreme Court in Parshotam Lal Dingra v. Union of India : (1958)ILLJ544SC . That was a case dealing with the service conditions of a Government servant, in relation to Article 311 of the Constitution of India. To a specific question put by me the learned Counsel was not able to say that there has been any decision dealing with the private employment, as master and servant, where it has been held that an order of confirmation gives a right to the employee to be in the post till he attains the age of superannuation. Further, as far as the present case is concerned, I am of the view that the company had a right to determine the services of the employee by one month's notice and that condition which was found by Ex. P2 or by Ex. P 25. On the other hand, Ex. P 25 in my opinion confirms this.

23. In para II of Ex. P. 25, it is stated :

An employee shall be separated from the service of the company on his normal retirement date, as hereinafter defined, unless the company shall decide otherwise in a particular instance.

24. Again in the same scheme in para VI it is stated:

the company may terminate the employment of any employee as freely and with the same effect as if this plan were not in operation and this Plan shall not be construed as giving any employee the right to be retained in the service of the company.

25. Thus it will be clear that the Separation Benefits Plan (Ex. P 25) did not confer a right on an employee to continue in office till he attains the age of superannuation. On the other hand, it has preserved to the company the power to terminate the services of an employee as freely as it desired. Over and above this, there is the general principle that in relation to master and servant, there is an implied term of contract that an employer can terminate the services of an employee on giving reasonable notice. As far as this particular case is concerned, I have already stated that the condition contained in Ex. PI that the plaintiff's services were liable to be terminated by the company on giving one month's notice was to ensure during his entire employment under the company and not merely to his employment as roads engineer. Consequently I am unable to accept the argument of Mr. K. K. Venugopal learned Counsel for the plaintiff that the plaintiff was entitled to serve in the company as operations manager of the territory till he completed the age of 55 years. Hence my finding on this part of the case is that the company had a right to terminate the services of the plaintiff on giving one month's notice and in this case no termination has taken place and the company had merely transferred the plaintiff from Mains to Bombay and the post to which he would be assigned at Bombay was not made known to him. As a matter of fact, the letters from the company made it clear that the post to which the plaintiff would be assigned would be indicated by Mr. R.W. Camp when the plaintiff reported to him, which the plaintiff never did. Under this circumstance, I am of the opinion that there has been no breach of contract committed by the defendant-company in relation to the contract of service of the plaintiff.

26. In view of this conclusion of mine no further question in relation to payment of damages or quantum of damages arises. However, in view of the arguments advanced before me I shall record my findings in this behalf also.

27. Mr. K. K. Venugopal in relation to his contention that every time the plaintiff was appointed or promoted to a new higher post a new contract came into existence relied on certain observations contained in 'The Modern Law of Employment' by Fridman, 1963 Edition, page 471. The passage relied on is:

The parties may determine the contract of employment into which they have entered by some later mutual agreement which will operate either as a variation of the terms of the original contract or as a contract completely rescinding the original contract. Such later variation or rescission may be oral, even where the original contract was in writing. Whether original contract has been varied or rescinded is a question of fact. A new substituted contract may be express or may be implied from the alteration of an essential term in the original contract, or from the fact that the einplovee continues in his employment after the original contract of employment has been determined.

He also relied on a further passage at page 493 which is as follows :

As seen in an earlier chapter wrongful repudiation by the employer may take the form of wrongfully refusing to employ the employee before the time for performance has arrived, breaking some fundamental terms of the contract, or wrongfully dismissing the employee without due notice before the end of the term of the employment.

Again at page 495, it is stated :

If the employment was for a fixed term then the damages will be the loss of salary for the remainder of such term. But they will not include any commission which the employee alleged he may have lost through such dismissal. Moreover the amount of damages will be reduced, in cases where the employee is alleging loss of salary for the remainder of a fixed period, by a number of factors for example the saving of the employee's time and labour by not having to earn his salary ; the probability of the employee's having other employment during the unexpired term ; the stoppage of the employment without any fault of the employer during the period of such unexpired term; the possibility that during such unexpired term the employer might have had good reason for terminating the employment.

28. Basing himself on these passages the learned Counsel contended that Ex. PI has been replaced by Ex. P2 and that under Ex. P2 the plaintiff had a right to continue as operations manager till he completed the age of 55 years and that employment being for a fixed term, since he was sent out of service from that post before he attained the age of 55 years, he was entitled to compensation on the basis of remuneration which he would have earned, if he had continued in service till he attained the age of 55 years. In my opinion this argument of the learned Counsel proceeds on a misapprehension. A case of this type where the conditions of service provide for retirement on the attainment of age of superannuation cannot be considered to be employment for a fixed term. Where an employee is required to serve till he attains the age of superannuation, it is generally called a 'general hiring' or a hiring permanent and pensionable into which a term that reasonable notice should be given was to be implied. Therefore, an employment of a person which requires him to retire from service on the attainment of superannuation cannot be considered to be an employment for a fixed term. So, the very basis on which the claim was put forward on behalf of the plaintiff is unavailable. In such a case it has been stated by Fridman in his book referred to earlier (at page 464):

Instead it was stated that an Indefinite hiring, even if the post was described as 'permanent and pensionable' must be presumed to be a general hiring into which the term that reasonable notice should be given was to be implied.

Therefore, in such cases, in the absence of any agreed term in the contract as to the notice period a reasonable notice is said to be required. The quantum of damages will be the salary for the period of notice. It is found in the very same book at page 495 as follows:

Normally the damages recoverable will be the amount of wages or salary for the period of proper notice for that amount will represent what the employee has lost by being dismissed without such notice.

The basis of this rule is that, if the contract provided for giving one month's notice and the employer had given that. one month's notice, or paid the salary for one month in lieu of notice, the termination cannot be challenged as illegal or unlawful. Consequently, when the employer terminates the services of an employee without giving any such notice, the employee will be entitled to the fulfillment of the contract, that is, payment of salary for the period of notice which was required to be given under the contract entered into between the parties. Therefore, I am unable to accept the contention of the learned Counsel for the plaintiff that the plaintiff will be entitled to claim by way of damages the salary which he would have earned in the post of operations manager, if he had continued in service till he completed the age of 55 years. On the other hand, in view of the conclusion I have come to, namely, that the contract of service between the parties provided for one month's notice on either side for the termination of the contract, if it is held that by giving the notice of transfer of the plaintiff from Madras to Bombay the employer had terminated the contract of service, without giving proper notice, the plaintiff would be entitled only to one month's salary by way of damages.

29. The learned Counsel for the plaintiff relied on the decision in Tanjore Permanent Bank v. G. N. Muniswami : AIR1964Mad183 , where this Court upheld the conclusion of the trial Court giving damages on the basis of twelve months' salary. However, that decision has no application to the facts of this case, since I have come to the conclusion that the contract between the parties in this case actually stipulated one month's notice for terminating the services, while that case dealt with a contract where no period of notice had been stipulated by or agreed to between the parties. Consequently my conclusion is that if the plaintiff is entitled to any damages at all, he is entitled only to one month's salary on the ground that his services were terminated by breach of contract committed by the defendant-company and that termination was unlawful, since no notice as required by the contract entered into between the parties, was given.

30. The last contention which I have to consider is that in relation to the jurisdiction of this Court. This contention was raised by the defendant on the basis of certain averments contained in the plaint. In the plaint, the plaintiff has stated that resignation of the plaintiff was not a voluntary one but a forced one and, therefore, that itself amounted to the termination of the services of the plaintiff. As I have pointed out already, the ultimate argument which was pressed before me was not with reference to anything about the resignation but with reference to the alleged transfer to a lower post at Bombay, constituting the breach of contract. Based on the averment contained in the plaint, the contention of the defendant was that the resignation was accepted at Bombay after the transfer of the plaintiff from Madras to Bombay and, therefore, the Courts in Madras have no jurisdiction to entertain this suit. On the other hand, on the point that was argued before me, namely, that there has been a breach of contract by the order of transfer of the plaintiff from Madras to Bombay to a lower post, with reference to the contract Ex. P2 which was entered into only at Madras, the contention was that the Courts in Madras have jurisdiction. In view of this, I have no hesitation in overruling the contention of the defendant that this Court has no jurisdiction and holding that in view of the fact that the contract, the alleged breach of which has been the subject-matter of this suit has been entered into at Madras, the Courts in Madras have jurisdiction to try this suit. The learned Counsel for the plaintiff, however, contended that in any event the Courts in the place where the communication regarding the breach of contract was received will also have jurisdiction since the receipt of such communication will constitute part of the cause of action and for this purpose he relied on G. Venkatesha v. Kamlapat : AIR1957Mad201 , and Dhanraj Mills Ltd. v. S. N. Boobna I.L.R. 1948 Pat. 723. In my opinion neither of these cases will support this contention, because they deal with cases of repudiation of contract and not with a communication effecting a breach of the contract. Apart from this, on my conclusion that the contract Ex. P2, the alleged breach of which has been the subject-matter of this suit, was entered into at Madras this Court will have jurisdiction to try this suit, since the formation of the contract constitutes a part of the cause of action in a suit for damages for breach of contract and that formation took place in Madras.

31. As a result of the above discussion, I recast the issues framed in the suit as follows and give my findings thereon :

(1) Original issue No. 1 is recast as follows :

Whether the plaintiff was transferred to a lower post at Bombay and whether such a transfer amounted to breach of the terms and conditions of the contract of service My finding is that the plaintiff was not transferred to a lower post at Bombay and consequently there was no breach of the terms and conditions of the contract of service on the part of the defendant-company.(2) Original issue No. 2: As I already pointed out, no grievance was made of the resignation of the plaintiff in this suit and, therefore, this issue does not arise.

(3) Original issue No. 3 will be numbered as issue No. 2. My finding is that in view of my conclusion on issue No. 1 this issue does not arise and in any event if it is to be held that the plaintiff was transferred to a lower post at Bombay in breach of the terms and conditions of the contract of service, the plaintiff would be entitled to claim one month's salary only as damages.

(4) Original issue No. 4 will be numbered as issue No. 3. My finding on this issue is that this Court has jurisdiction to try this suit.

(5) Original issue No. 5 will be numbered us issue No. 4.

As a consequence of the cumulative effect of my above findings the suit is dismissed.

32. There remains the question of costs. In my opinion, the plaintiff was unnecessarily and unduly sensitive in relation to the nomination of Mr. Hosangady as the territory manager, when the permanent incumbent of that office went on tour and that has been responsible for all the subsequent troubles and ultimately in a huff the plaintiff resigned his office. Under these circumstances, I am of the view that this is a proper case where the parties should be directed to bear their respective costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //