1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO 4019 OF 2006 IN SUIT NO. 322 OF 2007 CAPT. TERENCE JAMES VERMA .. PLAINTIFF VS. RAYMOND LIMITED .. DEFENDANT MR. C.R. NAIDU I/B C.R. NAIDU & CO. FOR THE PLAINTIFF MR. HEMANG JARIWALA I/B M/S. DUROMA LAW FOR THE DEFENDANT CORAM : A.A. SAYED, J. DATE : OCTOBER 8, 2009. P.C.:- 1. The above Notice of Motion is taken out by the plaintiff interalia praying for the following reliefs:- 2 (a) That pending the hearing and final disposal of the Suit, this Honourable Court be pleased to direct the Defendant to forthwith employ the Plaintiff as Chief Pilot on same terms and conditions as existing on 22nd August, 2006; (b)In the alternate the Defendant be directed by a mandatory order to release the Plaintiff form the services of the Defendant and issue a certificate of experience, No Objection Certificate or a letter of release and pay all outstanding legal dues and including salary for August, 2006 and reimbursement of expenses; 2. The suit is filed by the plaintiff for reinstatement in service of the defendant-Company with continuity of service and full back wages. In the alternative it is also prayed in the plaint that the defendant company be ordered by mandatory order to release the plaintiff from the service of the defendant, issuing certificate of experience, No Objection Certificate or a letter of release 3 and pay all outstanding legal dues. There are also other reliefs prayed in the suit. 3. The plaintiff is a pilot holding Airline Transport Pilot License (ATPL) and was employed with the defendant- Company as a Chief Pilot (Fixed Wing), under a contract. It is the case of the Plaintiff that he was appointed by the defendant-company vide appointment letter dated 27-02-2003. Thereafter, he alongwith two other pilots were sent for Simulator training to USA sometime in March/April 2003. Prior to departing for training the Plaintiff executed an Indemnity Bond in the sum of Rs. 15 lacs whereby the plaintiff was required to serve defendant-company for a minimum period of 7 years. After successfully completing the training the plaintiff returned to India and flew the HS 125 800 aircraft of the respondent first as a Trainee then as a co-pilot and finally as a Commander under Supervision. Plaintiff was promoted as a Chief pilot (Fixed Wings) in May, 2005. 4. It is the case of the plaintiff that in March, 2006 the defendant-company decided to purchase aircraft 4 Challenger 604 as replacement for HS 125 800 and he was assured that he would be sent for conversion training on Challenger 604 aircraft. Accordingly all clearances in the name of the plaintiff for conversion training were obtained as per the requirements of DCGA. However, despite assurances given to him by the defendant- company, the plaintiff was not sent on conversion training and instead two new pilots were sent for conversion training, though the plaintiff was the senior pilot. 5. In the meanwhile bi-annual proficiency checks to fly HS 125 800 aircraft became due and the plaintiff was required to undergo proficiency checks on or before 4th August, 2006. However, company did not take steps to ensure that the proficiency checks were carried out for the validity of the license to fly HS 125 800 which expired on 4th August, 2006. Thereafter, by letter dated 18th August, 2006, the defendant called upon the plaintiff to undergo bi-annual proficiency checks under Capt. R. Sharma as examiner. The plaintiff pointed out that the 5 proficiency checks under Capt. R. Sharma as examiner was not legal inasmuch as per the DGCA A1 Circular No. 14 of 1990 (for short “the said circular”), a bi-annual proficiency check once conducted by an examiner could not be conducted by the same examiner atleast for the next consecutive four occasions. It is the further case of the plaintiff that on 18th August, 2006, he sought casual leave, however, defendant took this as a misdemeanor on the part of the plaintiff and he was telephonically questioned as to the need for proceeding on casual leave by Mr. M. R. Parkar, President H.R. During the telephonic conversation the plaintiff was once again questioned as to why he was not ready to undergo bi- annual proficiency checks under Captain R. Sharma as Examiner to which the plaintiff pointed out that the same would be in violation of the said circular. 6. According to the Plaintiff, he proceeded to Pune on 18th August, 2006 and returned to Mumbai in the evening of 20th August, 2006. On 21st August, 2006 when he reported at the airport office and was then to proceed to 6 the Corporate Office at Worli. At that time Shri P.K.Ratta, Vice President, Aviation Division was in USA and Mr. M.R. Parkar, President H.R. at Delhi. Plaintiff telephonically contacted Shri Parkar at Delhi and informed him that he had reported for duty. Mr. Parkar directed the plaintiff to meet him at Thane on next morning. However, when the plaintiff returned home from office on 21st August, 2006, he received letter dated 19th August, 2006 from Mr. Parkar calling upon the plaintiff to vacate the residential flat allotted to him by the defendant-company at Andheri, Mumbai and shift to premises at Jekegram at Thane with immediate effect. 7. It is the case of the plaintiff that said letter dated 19th August, 2006 of the defendant company indicated vindictive attitude of the defendant-company and was a calculated move to humiliate him and force him to leave the services of the defendant-company and it was a malafide action to subjugate him and force him to resign and the defendant company did not desire to continue his services. 7 8. The plaintiff therefore, submitted his resignation on 22nd August, 2006 to Mr. M.R. Parkar, President H.R. On 23rd August, 2006 he handed over the imprest cash, surrendered the Airport entry pass and uniform to the defendant’s Airport staff. He also vacated company leased accommodation allotted to him on 23rd August, 2006 and handed over possession of the same to the defendant-company. By letter dated 23rd August, 2006, the defendant-company informed him that his resignation would be considered subject to his undertaking to serve the defendant-company and carry out assigned duties during the required DGCA stipulated notice period of six months and subject to fulfilling conditions of appointment letter, indemnity bond and other documents executed by him and he was also called upon to undergo bi-annual proficiency checks under Capt. R.Sharma and keep all licenses valid. 9. The defendant-company also addressed notice dated 4th September, 2006 to the plaintiff through their Advocate calling upon him to report for duty within two days. In 8 reply to this notice, the plaintiff, by letter dated 8th September, 2006 set out the facts and circumstances whereby he was compelled to submit his resignation. By this letter the plaintiff also offered to re-join the services as directed, provided the defendant-company reposed trust, faith and confidence in his skill as a pilot. 10. In the meanwhile, the defendant-company filed civil suit before the Civil Judge, Senior Division, Ratnagiri and a Criminal Prosecution before the Chief Judicial Magistrate, Ratnagiri, against the plaintiff. 11. By his letter dated 12th October, 2006, the plaintiff wrote to the defendant-company reiterating what was stated by him and calling upon the defendant-company to permit the plaintiff to report on duty and organize bi-annual Checks in accordance with the said Circular and to pay the salary of the plaintiff for the month of August and September, 2006 and to restore the company leased accommodation provided to him. Plaintiff also by another letter, dated 18th October, 2006 again requested the defendant-company to reinstate him with full back 9 wages. The defendant-company however failed to respond to the notice and act upon the said letters. 12. The plaintiff has therefore filed the present suit and Notice of Motion. The plaintiff has averred in the affidavit in support of the Motion that if the defendant- company refuses to reinstate him then it ought to release him, and issue certificate of experience and release letter, otherwise he would suffer irreparable loss and would be compelled to remain idle though he is an experienced pilot. 13. The defendant-company has opposed the Motion and filed affidavit-in-reply. According to the defendant- company, the suit is not maintainable and this Court would have no jurisdiction to entertain and try the present suit as the dispute would fall within the purview of Industrial Dispute Act, which can be tried and decided by the Competent Court established under the said Act. It is stated that the issue of jurisdiction is required to be tried and decided as a preliminary issue and plaint be directed to be sent for presentation to proper Court. In the reply, 10 reference is made to the Special Civil Suit No. 79 of 2006, filed by the defendant-Company against the plaintiff before the Civil Judge, Junior Division, Ratnagiri. The said civil suit was filed on 12th September, 2006 and, it was prior in point of time to the filing of the present Suit, which is filed in November, 2006 and therefore, as per Section 10 of the Code of Civil Procedure, the present suit is required to be stayed. According to the defendant-company, as per the appointment letter dated 27th February, 2003 and the terms and conditions mentioned therein, the plaintiff was bound to undergo ground and flight training and in consideration of such training the plaintiff undertook to serve the defendant-company for a period of seven years. However, the plaintiff resigned on 22nd August, 2006 without giving proper notice, as required and thereby committed breach of the terms and conditions of the appointment letter and was liable to pay damages. The defendant-company had sent the plaintiff for training “CAE SIMUFLITE” and for that purpose the defendant- 11 company had incurred expenses at the tune of Rs 10.30,925/- and also incurred additional expenses accumulating to an aggregate sum of Rs. 26,45,000/- It is averred in the reply that as per the terms of the appointment letter, the plaintiff had executed an indemnity bond dated 10th March, 2003, whereby the plaintiff had agreed and undertook to serve the defendant-company for a period of seven years and had agreed to indemnify the defendant-company against any loss or damages. It is further stated that even as per the requirements under Rule 34 of the DGCA Rules, if a pilot wants to leave his job, he is required to give prior notice of six months to his employer and the rule further provided that failure to comply with the above provision may lead to action interalia under sub rule (2) of Rule 39-A of the Air Craft Rules, 1937. According to defendant-company, the plaintiff had violated the terms and conditions of the said appointment letter, the Rules and Regulations of the DGCA and plaintiff is not entitled to any relief. The plaintiff had unilaterally without any 12 prior intimation and in complete breach of the terms and conditions of the appointment letter, abstained from the duty since, 18th August, 2006 and because of the same, the defendant-company had to cancel several appointments/meetings of the senior members of the management who had to travel abroad as well as in India for business operation. The defendants contended that such cancellation has resulted in significant loss and damage to the defendant-Company. It is further contended that the plaintiff, without any just cause, refused to undergo proficiency checks under Captain Ramesh Sharma and that the said Capt. Ramesh Sharma was the only available qualified Examiner. 14. I have heard the learned Counsel for the parties and perused the material on record. 15. At the outset it is required to be noted that the learned Counsel for the defendant, did not raise any objection nor advanced any arguments that the issue of jurisdiction is to be tried as preliminary issue, during the hearing of the Motion. In absence of any such objection being 13 raised during hearing of this Motion and in absence of any assistance in that regard it is not possible for me to frame and decide the preliminary issue and to come to a definite finding/conclusion as to the issue of jurisdiction. I would therefore leave it open for the parties to take out appropriate application for the said purpose at a later stage, in accordance with law. 16. The contention of the defendant-company that the present suit is required to be stayed considering the provisions of section 10 of CPC, since the suit before the Civil Judge, Junior Division, Ratnagiri being Spl. Civil Suit No 79 of 2006, was instituted prior in time to the present suit, is in my view, without substance. Perusal of Section 10 of the CPC would disclose that the trial of the suit which was subsequently filed shall not be proceeded with, only if the previous suit was having ‘jurisdiction’ to grant the relief claimed. I have gone through the copy of the plaint of Special Civil suit No. 79 of 2006 filed by the defendant-company before the C.J.J.D. Ratnagiri handed in across the bar. That suit is essentially filed by the 14 defendant-company on the ground that it has its registered office in Ratnagiri and certain administrative activities were carried out from Ratnagiri office. Merely because the registered office is in Ratnagiri would not confer jurisdiction in the courts at Ratnagiri. A plain reading of the plaint filed in the court at Ratnagiri, prima facie discloses that the entire cause of action, has infact arisen in Mumbai and no part of the cause of action has arisen within the local limits of Ratnagari. The appointment letter by the defendant-company to the plaintiff is issued in Mumbai, the indemnity bond was executed in Mumbai and terms and conditions for the appointment were settled in Mumbai. Moreover, the defendant therein (i.e. the plaintiff herein) is residing in Mumbai and/or Pune. In the circumstances aforestated, in my prima faice view the court in Ratnagiri would not be a court of competent jurisdiction. Therefore, the provisions of Section 10 would have no application in the facts and circumstances of the present case. In my opinion therefore, the present suit need not be stayed 15 because of the pendency of the suit in the court at Ratnagiri. It is however clarified that these observations are prima facie and only for the purpose of the above Notice of Motion and the court in Ratnagiri, where the suit has been filed, shall not be bound by the finding and observations made hereinabove relating to the jurisdiction and would decide the same independently. 17. Learned Counsel for the plaintiff has placed reliance on the case of Pukharaj D. Jain and others Vs. Gopalkrishna, reported in AIR 2004 SCC 3504 on the issue of stay of suits. He has also relied on the case of Raj Kumar vs. UOI reported in AIR 1969 SC 180 and the case of G.T. Lad vs. Chemicals and Fibres India Ltd., reported in 1979 LAB I.C. 290 on the issue of resignation. 18. At the ad-interim stage of the above motion, this Court on 18th December, 2006 had passed the following order :- “1.The parties do not desire reasons for this order. 16 2. Mr. Naidu, the learned Counsel appearing on behalf of the plaintiff, on taking instructions from the plaintiff who is present in Court, agrees and undertakes to furnish security by way of a bank guarantee or fixed deposit receipts of a Nationalized Bank on or before 29th January 2007 in the sum of Rs. 8,50,000/-. The security if furnished, shall be deposited in this Court. 3. On the basis of this statement and the undertaking which is accepted by the Court, the defendant shall forthwith issue a release letter, releasing the Plaintiff from the services of the defendant and issue a certificate of experience, no objection certificate or a letter of release to the plaintiff with copies thereof to the DGCA, as may be necessary for the plaintiff. 4. In the event the security as aforesaid not being created on or before 29th January, 2007, it is agreed that this order shall forthwith stand vacated and the certificate issued by the Defendants shall stand annulled without further orders of this Court. In that 17 event, it is clarified that the position as of today shall be restored. 5. Needless to add that this order is without prejudice to the rights and contentions of all the parties, including the preliminary objection of the defendant as to the jurisdiction. 6. Notice of Motion is made returnable in normal course. 7. All parties are directed to act on an ordinary copy of this order duly authenticated by the Associate/Personal Assistant.” 19. Considering the above ad-interim order, a query was put by this court to the learned Counsel for the plaintiff as to whether anything remains in the motion, inasmuch as the defendant-company had complied with the aforesaid order by issuing the release letter on the conditions mentioned in the ad-interim order upon furnishing necessary 18 security by the plaintiff and admittedly the plaintiff is now employed with another company. The Ld. Counsel for the plaintiff submitted that that was an ad-interim order and was passed without prejudice to the rights and contentions of the parties and that the plaintiff should now be relieved from the security furnished by him and he be allowed to withdraw the security and to that extent the motion survives. 20. It is not disputed before me that on the basis of release letter and the documents as mentioned in the ad interim order, the plaintiff has been gainfully employed as a pilot in some other Company. It is on the basis of statement and undertaking and on the said condition of furnishing security by the plaintiff that the defendant-company had issued release letter and other documents whereby the plaintiff was able to get himself employed in some other company. Having taken advantage of the letters issued by the defendant-company based on the plaintiff agreeing and undertaking to furnishing security, the plaintiff cannot now be allowed to resile from his statement and undertaking. The 19 plaintiff cannot be allowed to approbate and reprobate as and when convenient to him. I am therefore, not inclined to accept the contention of the plaintiff that he should be relieved from the condition of furnishing security and he be allowed to withdraw the security and be relieved from the said obligation. I am not with the learned Counsel for the plaintiff, when he contends that in the suit filed by the plaintiff against the defendant-company, the plaintiff cannot be asked to furnish security deposit and that the order passed on 18th December, 2006 was merely a workable order or temporary arrangement till the final disposal of the Motion. If the plaintiff is now allowed to resile from the statement made at the ad-interim stage, the defendant-company would also be entitled to withdraw/call back the letters issued and documents released by them to the plaintiff. It is not now possible to set the clock back. The arrangement at the ad- interim stage was a quid pro quo arrangement and having induced the defendant-company to issue the letters and release the documents, the plaintiff is now estopped and cannot be granted the relief now sought as suggested by the 20 Ld. Counsel for the plaintiff. 21. It also cannot be disputed that plaintiff had furnished his resignation within the period of 7 years of his appointment. This was contrary to the terms and conditions of his appointment letter and the indemnity bond executed by him. The contention of the plaintiff that the defendant- company created situation whereby he was coerced to give resignation and in any event since his resignation was not accepted he continued to be in the employment, cannot be accepted at this stage and would require evidence and a full- fledged trial of the suit. Moreover, the outcome of the Civil Suit at Ratnagiri filed by the defendant-company, where the alternative prayer is that the plaintiff be directed to pay to the defendant-Company an amount of Rs. 8,55,000/- may also have a bearing on how the security furnished by the plaintiff is to be dealt with. 22. Taking an over all view of the matter, in my opinion, the Notice of Motion has been substantially worked out at the ad-interim stage itself. The relief now pressed by 21 the learned Counsel for the plaintiff in this Motion that the plaintiff that be relieved from the security furnished to this court and the plaintiff be allowed to be withdraw the security, cannot be granted. 23. Notice of Motion to stand disposed of in terms of the ad-interim order dated 18-12-2006. [A.A. SAYED, J.]