The Branch Manager vs M. Antony Dhass
- Court
- Madras High Court
W.A.No.3286 of 2024
& C.M.P.No.25475 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On: 06.10.2026 Delivered On: 27.10.2026
CORAM
THE HONOURABLE DR JUSTICE G. JAYACHANDRAN
AND
THE HONOURABLE MR JUSTICE E. MANOHARAN
W.A.No.3286 of 2024
& C.M.P.No.25475 of 2024
The Branch Manager,
M/s.Bajaj Allianz Life Insurance Co. Ltd.,
No.85, Sidel Tower,
Opp. WCC College, WCC Road,
Nagercoil,
Kanyakumari District – 629 001.
Represented by its Authorized Representative,
M.Aravinda, S/o.M.I.Muniyappa … Appellant
vs.
M.Antony Dhass,
No.12/54, Mary’s Cottage,
Muthuraman Kovil Road,
Thickanamcode,
Kanyakumar District – 629 804. … Respondent
Prayer: Writ Appeal filed under Clause 15 of Letters Patent Act,
pleased to set aside the order dated 26.02.2024 passed in W.P.No.19579 of 2019
and allow the Writ Appeal with costs.
For Appellant : Mr.G.Balasubramaniam,
for M/s.Leela and Co.,
For Respondent : Mr.A.G.F.Terry Chella Raja
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J U D G M E N T
D r. G. JAYACHANDRAN, J.
The appellant herein is an Insurance Company, under which the
respondents was employed as a workman, appointed as Customer Support
Representative on 07.02.2005. His appointment was regularized with effect
from 1.6.2006. Initially, he was posted in Nagercoil branch. Later, during the
month of September 2010, he was transferred to Trichy TLC Offsite office.
Prior to the issuance of the transfer order, the respondent was asked to do tele-
calling work by contacting atleast 20 customers per day, which the respondent
refused to do on the ground that tele-calling was not part of his work.
Therefore, when the transfer order was issued to him, the respondent did not
join at the transferred place, stating that it is an act of victimization and undue
labour practice, since he was actively involved in trade union activities.
2. The respondent contended that TLC Offsite is not a Branch office
of the appellant and therefore, the transfer order is in contravention of the terms
and conditions of his appointment. Since the respondent refused to join at the
new place at TLC Offsite, Trichy, he was terminated from service on
12.10.2010. Therefore, he raised an industrial dispute and sought reference to
the tribunal for adjudication. The Central Government, Ministry of Labour and
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Employment, by order dated 31.03.2014, referred the dispute to the tribunal for
adjudication. The dispute was numbered as I.D. No. 43 of 2014. The claim
statement of the workman/respondent and the response of the
respondent/management was considered to adjudicate the questions: (i) Whether
the action of the management of M/s.Bajaj Allianz Life Insurance Company
Limited, Nagercoil, in terminating the services of Sri.M.Anthony Dhass with
effect from 12.10.2010 is legal and justified? and ii) What relief the workman is
entitled to?
3. Before the Tribunal, the respondent was examined and on his
behalf, 28 exhibits (Ex.W1 to Ex.W28) were marked. On behalf of the
management, four witnesses were examined, but no documentary evidence
produced.
4. The Tribunal framed the following points of consideration:
1. Whether the action of the Management in
terminating the services of the petitioner is legal and
justified?
2. What is the relief to which the petitioner is
entitled?
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5. The Tribunal, on analyzing the facts and circumstances of the case,
held that the order of termination is punitive in nature, for the respondent’s
refusal to do the work of tele-calling assigned to him. The Management, under
the pretext of transfer, forced him to join a non-existing company at Trichy and
upon his refusal to accept the transfer order, without any inquiry, the
Management has arbitrarily terminated the respondent.
6. The Tribunal further recorded that there is justifiable reason for the
respondent/workman for not obliging the transfer order. The Management has
failed to disprove the contention of the workman that TLC office at Trichy had
no connection with M/s.Bajaj Allianz Life Insurance Co., Ltd and admitted that
the M/s.TLC Offsite office is not a Branch Office of M/s.Bajaj Allianz Life
Insurance. Therefore held that the termination order is illegal, the Tribunal after
holding so ordered reinstatement to the Respondent with 50% back wages and
other attendant benefits, together with interest at the rate of 7.5% p.a., from the
date of the award.
7. Being aggrieved by the award passed by the Central Government
Industrial Tribunal-cum-Labour Court, Chennai, in I.D.No.43 of 2014, dated
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05.11.2015, the Management filed W.P.No.19579 of 2019. The learned Single
Judge dismissed the writ petition, holding that there is no perversity in the
findings of the Labour Court and same does not call for any interference.
8. Challenging the order of the Learned Single Judge, confirming the
award passed by the Industrial Tribunal-cum-Labour Court, Chennai, the
present Intra-Court Appeal is filed on the ground that the appointment order
issued to the respondent specifically states that the company reserves the right
of transfer to any location where the Company had office or a newly established
office, as per its requirements of the company and the service are transferable.
Further, the appointment order dated 22.04.2026 had described the job
description specifies that the normal work will consist of the duties assigned
from time to time, and he may be called upon at any time to discharge any other
duties which, in the opinion of the company, are within his capacity to perform.
The respondent’s refusal to carry out tele-calling work and his refusal to accept
the transfer order is contrary to the conditions imposed in the appointment
order. Hence, the order of the Tribunal and the order of the Learned Single
Judge confirming the order of the Tribunal is bad in law for not properly
appreciating the terms and conditions of the appointment.
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9. The Learned Counsel appearing for the appellant referring to the
reply of the respondent for the transfer order, state that, the Workman has stated
that he is not accepting the transfer letter and also not willing to get transferred
outside Kanyakumari District. By referring to this e-mail reply to the transfer
order, the Learned counsel appearing for the appellant submitted that while in
the appointment order it is specifically indicated that it is a transferable job and
he can be posted anywhere where the company functions, the refusal to accept
the transfer order, stating that he is not willing to go out of Kanyakumari
District, amounts to clear insubordination and misconduct, inviting loss of trust.
The Tribunal, without appreciating the tenor of the reply given by the
respondent, ordered reinstatement with wages for workman who outrightly
refused to do the work assigned and refused to join duty at the transferred place.
The Learned Single Judge has ordered reinstatement with 50% backwages
erroneously without considering the merits of the Management case.
10. Per contra, the Learned counsel appearing for the
respondent/workman submitted that the reply to the transfer order cannot be
read in isolation. The response of the respondent, soon after the termination
order, also be considered, since it discloses the reasons why the termination
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order is illegal. The Tribunal as well as the learned Single Judge has considered
the said representations, marked as Ex.W13 dated 27.02.2011 and Ex.W15
dated 14.05.2012, narrating the circumstances and the reason for forcing the
respondent to do tele-calling work, which is outside the scope of his
employment conditions and the transfer to a place outside Kanyakumari District
where the appellant company had no branch for itself. In the inter-court appeal,
the Division Bench need not re-appreciate facts, unless perversity implicitly
seen. In this case, the concurrent finding of facts does not suffer any perversity
to interfere.
11. On hearing the rival submissions, the points for consideration are:
(i) Whether the order of appointment issued by the appellant
envisaged demanding tele-calling work from the respondent and if so, whether
refusal to do tele-calling job amounts to misconduct to attract the capital
punishment of termination?
(ii) Whether the respondent had a right to refuse to accept the transfer
order outside Kanyakumari District, and
(iii) Whether refusal to accept the transfer order on the ground that the
TCL Offsite, Trichy is not a branch office of M/s.Bajaj Allianz Insurance
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Company is justified?
12. The Tribunal, while considering the issue of refusal to take up
tele-calling work, relied upon the oral evidence of Branch Manager of the
appellant company that tele-calling is not specified in the appointment order as
the duty of the petitioner. Taking note of the statement of the respondent/
workman that tele-calling work been specifically assigned to two other staff in
the Company, the Tribunal held that refusal to do the job which is not part of
duty is justifiable. The Tribunal has held that the transfer order was issued only
because the workman refused to take up the assigned job of tele-calling and it
was a shortcut method adopted by the Management to relieve the respondent
from service. The tribunal has observed that, after refusal to accept the transfer
order, the workman was terminated immediately with three months' wages. The
hasty decision to terminate without affording an opportunity to the
respondent/workman is held to be illegal.
13. Regarding refusal to accept the transfer order, the Tribunal relied
upon the oral evidence of MW1, the Assistant Manager of the appellant
company that the TLC Offsite office at Trichy is not a Branch Office of the
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respondent but only a corporate agent of M/s.Bajaj Allianz Life Insurance. For
want of documentary evidence to substantiate their statement, the Tribunal has
held that, even assuming the transfer was on account of work exigency as
claimed by the respondent, it was only a camouflage to send away the
petitioner.
14. When this finding was challenged as perverse, the Learned Single
Judge, in the writ petition has dismissed the appeal, recording that between the
transfer order and the termination order there was more than a month's time for
the Management to take disciplinary proceedings against the respondent for the
misconduct of not accepting the transfer order, but no domestic inquiry was
conducted. Therefore, the finding of the Labour Court that the Management had
adopted a shortcut method to terminate the workman from service and its
appreciation of the evidence by the Labour Court, does not suffer any
perversity.
15. We find that, though the respondent was able to successfully
correlate his earlier refusal to take up tele-calling workd assigned to him and his
refusal to accept the transfer order before the tribunal as well as the learned
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Single Judge, his success in convincing the tribunal and the learned Single
Judge is due to improper appreciation of material evidence and due to gross
failure of appreciating the terms and conditions contained in the appointment
order.
16. The order of appointment dated 22.04.2006 contains several
conditions and terms. As far as the post offered to the respondent is termed as
Customer Support Executive in Grade L1-B. His location is based at Nagercoil
Branch office. However, the Company has reserved the right to transfer him at
any other location where the Company had office or a newly established office,
as per the requirements of the Company.
17. M.W.1, the Assistant Manager of the Management has clearly
deposed that the TLC office at Trichy is one of the corporate agents of Bajaj
Allianz. No doubt, the Management has not furnished any document to show
whether the TLC office was established to carry out the requirements of the
Company. However, it is to be noted that the respondent did not refuse to join
the TLC Offsite office at Trichy because it is not an establishment carrying out
the requirements of the appellant company. He had refused to accept the transfer
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order because he is not willing to go out of Kanyakumari District. It is also to
be noted that, when the Management asked the respondent to carry out tele-
calling job, he refused to accept the additional job, though the appointment
order, under the head “Job Description,” stated:
“Although your normal work will consist of the
duties assigned to you from time to time, you may at any
time be called upon to discharge any other duties which in
the opinion of the Company are within capacity to
discharge and you will forthwith undertake to discharge
those duties with diligence and care.”
18. Taking note of the fact that two persons exclusively employed for
tele-calling job, the Tribunal has justified the refusal of the respondent to carry
on the additional work. When the Management has confronts a workman who
refused to take up additional responsibility, had thought fit to transfer him to a
place where he can carry on the job of Customer Support Executive alone and
not to do the follow-up action of tele-calling to remind the existing customers
for renewals of the policy. This action of transfer cannot be termed as malafide
action. Even the employee/respondent, initially had not stated that the transfer
is a malafide action, so he will not join at the transferred place. He has refused
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to join the place of transfer because he was not inclined to go out of
Kanyakumari District. The appointment order specifically states that it is a
transferable job, though the initial appointment was based at Nagercoil branch,
it is not a non-transferable job. The refusal to join at the transferred place,
simpliciter without assigning any reason and the reasons assigned subsequent to
the termination in our view is only to fill up the lacuna, on advice hence same
cannot be accepted.
19. In Novartis India Limited vs. State of West Bengal and others
reported in (2009) 3 SCC 124, the Hon’ble Supreme Court, while dealing with a
similar case of dismissal without conducting an enquiry for not joining service
at he transferred place, observed that:
“ 18. When an employee does not join at his
transferred place, he commits a misconduct. A disciplinary
proceeding was, therefore, required to be initiated. The
order of discharge is not a substitute for an order of
punishment. If an employee is to be dismissed from
services on the ground that he had committed a
misconduct, he was entitled to an opportunity of hearing.
Had such an opportunity of hearing been given to them,
they could have shown that there were compelling reasons
for their not joining at the transferred places. Even a
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minor punishment could have been granted. The appellant
precipitated the situation by passing a post-haste order of
termination of their services.”
20. In exceptional cases, termination without a formal enquiry can be
justified by leading evidence before the Labour Court. This proposition
delivered by a Bench of Three Judges of the Hon’ble Supreme Court in State of
Uttarakhand and others vs. Sureshwati, reported in (2021) 3 SCC 108 , holds
the field, so we extract the relevant portion of the Hon’ble Supreme Court
observations below extensively.
“ 18. This Court has in a catena of decisions
held that where an employer has failed to make an enquiry
before dismissal or discharge of a workman, it is open for
him to justify the action before the Labour Court by
leading evidence before it. The entire matter would be
open before the tribunal, which would have the
jurisdiction to satisfy itself on the evidence adduced by the
parties whether the dismissal or discharge was justified.
19. A four-Judge Bench of this Court in
Workmen v. Motipur Sugar Factory (P) Ltd. [Workmen v.
Motipur Sugar Factory (P) Ltd., AIR 1965 SC 1803] held
that:
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“11. It is now well settled by a number
of decisions of this Court that where an employer
has failed to make an enquiry before dismissing or
discharging a workman it is open to him to justify
the action before the tribunal by leading all
relevant evidence before it. In such a case the
employer would not have the benefit which he had
in cases where domestic enquiries have been held.
The entire matter would be open before the tribunal
which will have jurisdiction not only to go into the
limited questions open to a tribunal where domestic
enquiry has been properly held (see Indian Iron &
Steel Co. Ltd. v. Workmen [Indian Iron & Steel Co.
Ltd. v. Workmen, AIR 1958 SC 130]) but also to
satisfy itself on the facts adduced before it by the
employer whether the dismissal or discharge was
justified. We may in this connection refer to Sasa
Musa Sugar Works (P) Ltd. v. Shobrati Khan [Sasa
Musa Sugar Works (P) Ltd. v. Shobrati Khan, AIR
1959 SC 923], Phulbari Tea Estate v. Workmen
[Phulbari Tea Estate v. Workmen, AIR 1959 SC
1111], and Punjab National Bank Ltd. v. Workmen
[Punjab National Bank Ltd. v. Workmen, AIR 1960
SC 160]. These three cases were further considered
by this Court in Bharat Sugar Mills Ltd. v. Jai
Singh [Bharat Sugar Mills Ltd. v. Jai Singh, (1962)
3 SCR 684], and reference was also made to the
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decision of the Labour Appellate Tribunal in Ram
Swarath Sinha v. Belsund Sugar Co. [Ram Swarath
Sinha v. Belsund Sugar Co., 1954 LAC 697] It was
pointed out that ‘the important effect of omission to
hold an enquiry was merely this: that the tribunal
would not have to consider only whether there was
a prima facie case but would decide for itself on the
evidence adduced whether the charges have really
been made out’. It is true that three of these cases,
except Phulbari Tea Estate case [Phulbari Tea
Estate v. Workmen, AIR 1959 SC 1111], were on
applications under Section 33 of the Industrial
Disputes Act, 1947. But in principle we see no
difference whether the matter comes before the
tribunal for approval under Section 33 or on a
reference under Section 10 of the Industrial
Disputes Act, 1947. In either case if the enquiry is
defective or if no enquiry has been held as required
by Standing Orders, the entire case would be open
before the tribunal and the employer would have to
justify on facts as well that its order of dismissal or
discharge was proper. Phulbari Tea Estate case
[Phulbari Tea Estate v. Workmen, AIR 1959 SC
1111] was on a reference under Section 10, and the
same principle was applied there also, the only
difference being that in that case there was an
inquiry though it was defective. A defective enquiry
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in our opinion stands on the same footing as no
enquiry and in either case the tribunal would have
jurisdiction to go into the facts and the employer
would have to satisfy the tribunal that on facts the
order of dismissal or discharge was proper.”
20. Subsequently in Delhi Cloth & General
Mills Co. v. Ludh Budh Singh [Delhi Cloth & General
Mills Co. v. Ludh Budh Singh, (1972) 1 SCC 595] this
Court held that:
“60.... (1) If no domestic enquiry had
been held by the management, or if the
management makes it clear that it does not rely
upon any domestic enquiry that may have been held
by it, it is entitled to straightway adduce evidence
before the Tribunal justifying its action. The
Tribunal is bound to consider that evidence so
adduced before it, on merits, and give a decision
thereon. In such a case, it is not necessary for the
Tribunal to consider the validity of the domestic
enquiry as the employer himself does not rely on it.
*
(3) When the management relies on the
enquiry conducted by it, and also simultaneously
adduces evidence before the Tribunal, without
prejudice to its plea that the enquiry proceedings
are proper, it is the duty of the Tribunal, in the first
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instance, to consider whether the enquiry
proceedings conducted by the management, are
valid and proper. If the Tribunal is satisfied that the
enquiry proceedings have been held properly and
are valid, the question of considering the evidence
adduced before it on merits, no longer survives. It
is only when the Tribunal holds that the enquiry
proceedings have not been properly held, that it
derives jurisdiction to deal with the merits of the
dispute and in such a case it has to consider the
evidence adduced before it by the management and
decide the matter on the basis of such evidence.”
21. Reliance is also placed on the judgment of
this Court in Workmen v. Firestone Tyre & Rubber Co. of
India (P) Ltd. [Workmen v. Firestone Tyre & Rubber Co.
of India (P) Ltd., (1973) 1 SCC 813: 1973 SCC (L&S)
341] wherein the broad principle regarding holding of the
enquiry were spelt out as:
“32. From those decisions, the following
principles broadly emerge:
‘(1) The right to take disciplinary action
and to decide upon the quantum of punishment are
mainly managerial functions, but if a dispute is
referred to a Tribunal, the latter has power to see if
action of the employer is justified.
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(2) Before imposing the punishment, an
employer is expected to conduct a proper enquiry
in accordance with the provisions of the Standing
Orders, if applicable, and principles of natural
justice. The enquiry should not be an empty
formality.
(3) When a proper enquiry has been held
by an employer, and the finding of misconduct is a
plausible conclusion flowing from the evidence,
adduced at the said enquiry, the Tribunal has no
jurisdiction to sit in judgment over the decision of
the employer as an appellate body. The interference
with the decision of the employer will be justified
only when the findings arrived at in the enquiry are
perverse or the management is guilty of
victimisation, unfair labour practice or malafide.
(4) Even if no enquiry has been held by
an employer or if the enquiry held by him is found
to be defective, the Tribunal in order to satisfy itself
about the legality and validity of the order, had to
give an opportunity to the employer and employee
to adduce evidence before it. It is open to the
employer to adduce evidence for the first time
justifying his action, and it is open to the employee
to adduce evidence contra.
(5) The effect of an employer not holding
an enquiry is that the Tribunal would not have to
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consider only whether there was a prima facie case.
On the other hand, the issue about the merits of the
impugned order of dismissal or discharge is at
large before the Tribunal and the latter, on the
evidence adduced before it, has to decide for itself
whether the misconduct alleged is proved. In such
cases, the point about the exercise of managerial
functions does not arise at all. A case of defective
enquiry stands on the same footing as no enquiry.
(6) The Tribunal gets jurisdiction to
consider the evidence placed before it for the first
time in justification of the action taken only, if no
enquiry has been held or after the enquiry
conducted by an employer is found to be defective.
(7) It has never been recognised that the
Tribunal should straightaway, without anything
more, direct reinstatement of a dismissed or
discharged employee, once it is found that no
domestic enquiry has been held or the said enquiry
is found to be defective.
(8) An employer, who wants to avail
himself of the opportunity of adducing evidence for
the first time before the Tribunal to justify his
action, should ask for it at the appropriate stage. If
such an opportunity is asked for, the Tribunal has
no power to refuse. The giving of an opportunity to
an employer to adduce evidence for the first time
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before the Tribunal is in the interest of both the
management and the employee and to enable the
Tribunal itself to be satisfied about the alleged
misconduct.
(9) Once the misconduct is proved either
in the enquiry conducted by an employer or by the
evidence placed before a Tribunal for the first time,
punishment imposed cannot be interfered with by
the Tribunal except in cases where the punishment
is so harsh as to suggest victimisation.
(10) In a particular case, after setting
aside the order of dismissal, whether a workman
should be reinstated or paid compensation is, as
held by this Court in Panitole Tea Estate v.
Workmen [Panitole Tea Estate v. Workmen, (1971)
1 SCC 742] within the judicial decision of a Labour
Court or Tribunal.’
21. From the material in hand, we find from the evidence that the
respondent herein admittedly refused to take up the additional responsibility of
tele-calling, which form part of his duties as Customer Support Executive. He
further refused to accept the transfer order, insisting that he must be retained in
Kanyakumari and he will not accept the transfer elsewhere. The Learned Single
Judge has observed that, before termination, the Workman ought to have been
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given an opportunity of participating in an enquiry and that the order of
termination without enquiry suffers infirmity. However, from the judgments
cited above, an enquiry can be dispensed with even in cases of termination but
the Management has to prove the misconduct by leading evidence before the
Labour Court. The documents relied by the Workman itself indicate that his
refusal to accept the transfer order anywhere outside Nagarcoil District was
apparently a disregard or breach of the conditions of service.
22. Therefore, we hold that there is no necessity for conducting any
domestic enquiry when a workman refuses to accept the transfer order and insist
for retaining at the existing place of work. His refusal contained not only before
termination but even after termination. If he had offered to join in the
transferred place, atleast after termination his claim that summary dismissal is
illegal could have been a plausible reason to interfere the termination order. A
workman who is insubordinate to accept the order of transfer, inspite of a
condition that his appointment is transferable, we find there can be no lesser
punishment than termination of service. Having paid three months' salary in
lieu of notice, as contemplated under the Act, there can be no more service
benefit or monetary benefit could be given to the respondent.
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W.A.No.3286 of 2024
& C.M.P.No.25475 of 2024
23. Hence, we are constrained to set aside the order of the Learned
Single Judge as well as the order of the Labour Court and we confirm the order
of termination passed by the Management for misconduct.
24. In the result, the Writ Appeal stands allowed. The order of the
learned Single Judge as well as the award of the Labour Court are set aside. The
order of termination passed by the management against the respondent is
confirmed. Consequently, the respondent shall not be entitled to any service
benefits or monetary benefits other than three months’ salary already paid in
lieu of notice. However, we make it clear that if any amount paid to the
respondent as interim relief, same need not be recovered.
25. Accordingly , W.A.No.3286 of 2024 is allowed. There shall be no
order as to costs. Consequently, connected Miscellaneous Petition is closed.
( Dr . G. JAYACHANDRAN, J. ) & ( E. MANOHARAN, J.)
27-10-2026
Index :Yes.
Neutral Citation :Yes/No.
Internet :Yes
bsm
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W.A.No.3286 of 2024
& C.M.P.No.25475 of 2024
Dr. G.JAYACHANDRAN, J.
&
E. MANOHARAN, J.
bsm
Pre-Delivery judgment made in
W.A.No.3286 of 2024
Judgment delivered on
27-10-2026
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