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NeslIn Joseph Prim Vs. the Presiding Officer, Central Government Industrial Tribunal Cum Labour Court, Chennai and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Case NumberW.P. No. 1593 of 2002, WPMP No. 2111 of 2002 and WVMP No. 401 of 2002
Judge
Reported in(2002)IIILLJ686Mad
ActsIndustrial Disputes Act, 1947 - Sections 10 and 11; Code of Civil Procedure (CPC) , 1908 - Sections 19 and 20
AppellantNeslIn Joseph Prim
RespondentThe Presiding Officer, Central Government Industrial Tribunal Cum Labour Court, Chennai and anr.
Appellant AdvocateR. Viduthalai, Adv.
Respondent AdvocateN.V. Srinivasan, Adv. for ;N.V.S. Associates
DispositionWrit petition allowed
Cases ReferredNew Delhi General Mazdoor Union v. Government of India
Excerpt:
labour and industrial - jurisdiction - sections 10 and 11 of industrial disputes act, 1947 and sections 19 and 20 of code of civil procedure, 1908 - employee resident of chennai - employee raised certain industrial dispute before tribunal of chennai - whether tribunal of chennai had territorial jurisdiction to entertain dispute - court or tribunal can entertain matter where either of parties resides or where subject matter of dispute substantially arose within that jurisdiction - in present case employee resided in chennai - tribunal at chennai had jurisdiction to entertain dispute. - .....petition to quash the same and for consequential direction to the first respondent to take up the industrial dispute (i.d.101 of 2001) on its file and decide all the issues comprehensively including the merits of the case,2. according to the petitioner, the second respondent establishment is a joint venture company which undertakes the work of drilling for extraction of oil from the earth. as such the 2nd respondent is an industry as per section 2(j) of the industrial disputes act, 1947. the petitioner joined the service of the 2nd respondent organisation as an assistant driller on 29.4.89 by an order dated 28.4.89. on completion of probation period, he was appointed as an assistant driller by order dated 3.2.1990 with effect from 1.1.1990. he will be placed anywhere within the country.....
Judgment:
ORDER

P. Sathasivam, J.

1. Aggrieved by the order of the Central Government Industrial Tribunal Cum Labour Court, Chennai, dated 17.7.2001, made in I.A. No. 35 of 2001 in I.D. No. 101 of 2001, holding that the Tribunal has no territorial jurisdiction to try the dispute referred, the petitioner has filed the above writ petition to quash the same and for consequential direction to the first respondent to take up the Industrial Dispute (I.D.101 of 2001) on its file and decide all the issues comprehensively including the merits of the case,

2. According to the petitioner, the second respondent Establishment is a joint venture company which undertakes the work of drilling for extraction of oil from the earth. As such the 2nd respondent is an Industry as per Section 2(j) of the Industrial Disputes Act, 1947. The petitioner joined the service of the 2nd respondent Organisation as an Assistant Driller on 29.4.89 by an order dated 28.4.89. On completion of probation period, he was appointed as an Assistant Driller by order dated 3.2.1990 with effect from 1.1.1990. He will be placed anywhere within the country of India where the rig work is to be carried out by the second respondent. He has worked in various places in India. He was promoted as a Driller on 1.3.1992 by a communication addressed to his residence at Chennai. He had put in more than 7 years of service. While so, the second respondent issued an order of dehiring dated 4.4.96 with effect from 18.5.96, in purported exercise of the power conferred under Clause 19 of the Annexure of appointment order dated 29.4.89. Aggrieved by the said order, he raised an industrial dispute and filed a petition before the Conciliation Officer at Chennai which ended in failure. Subsequently the appropriate Government referred this dispute to the first respondent herein and the same was taken on the file of the 2nd respondent as I.D. No. 101 of 2001 for adjudication. While so, the second respondent filed I.A. No. 35 of 2001 in the said I.D. No. 101 of 2000 questioning the jurisdiction of the first respondent on the ground that the 2nd respondent head office was functioning at Delhi and they did not have any branch at Chennai. The first respondent Tribunal, by its order dated 17.7.2001, allowed the application on erroneous grounds and directed the Registry of the Tribunal to submit the entire records of I.D. No. 101 of 2001 to the Labour Ministry to pass a fresh reference of this Industrial Dispute to the competent tribunal with jurisdiction for adjudication. Aggrieved by the said order of the first respondent, having no other efficacious remedy, filed this petition.

3. Heard Mr. R. Viduthalai, learned counsel for the petitioner and Mr. N.V. Srinivasan, learned counsel for the second respondent.

4. Mr. R. Viduthalai, after taking me through the initial order of appointment as Assistant Driller (Trainee) addressed to his residential address at Madras and the subsequent correspondences as well as the order of termination which was also addressed to his Madras address and in the light of the fact that by nature of his employment, the petitioner has to work anywhere within the country of India, where the rig work is to be carried out by the 2nd respondent, contended that inasmuch as part of cause of action arose at Chennai, the first respondent Tribunal has jurisdiction to try the reference made by the Government of India. On the other hand, Mr. N.V. Srinivasan, learned counsel for the second respondent, by drawing my attention to the various clauses in the terms of contract, contended that inasmuch as the registered office of the 2nd respondent company is at Delhi and while the petitioner was employed at Gujarat, his services were terminated, the Tribunal/Labour Court at Chennai has no territorial jurisdiction to try the reference made by the Government of India; accordingly the first respondent was justified in passing the impugned order.

5. I have carefully considered the rival submissions.

6. The only point for consideration is whether the Tribunal-first respondent has got territorial jurisdiction to adjudicate the industrial dispute between the parties mentioned in the reference

7. It is not disputed that petitioner was initially appointed as an Assistant Driller on 29.4.89 and subsequently was promoted as Driller. It is also not disputed that the registered office of the 2nd respondent company is at Delhi and petitioner joined duty at Mehasana (Gujarat) and his last assignment was at Bhauch at Gujarat. As per Clause 19 of the order of appointment, the petitioner's appointment is terminable either by the Company or by the petitioner himself, after giving 45 days' notice and without assigning any reason. The Management has to pay salary in lieu of notice period. By referring to the said Clause (Clause 19) of the appointment order, the 2nd respondent by order dated 4.4.96, dehired the services of the petitioner with effect from 18.5.96, which is the subject matter in I.D. No. 101 of 2001 on the file of the first respondent. Though the registered office of the second respondent situates at Delhi and the petitioner worked at Gujarat before his services were dehired, Mr. R. Viduthalai, learned counsel for the petitioner, would contend that since part of cause of action arose within the jurisdiction of the first respondent, the latter is the competent authority to adjudicate the reference made by the Government of India. In this regard, he brought to my notice that the order of appointment was issued to the petitioner to his residential address at Chennai and the order of dehiring was also issued to him at the same address. It was vehemently contended that the dispute can be raised in the place where the petitioner or the respondent resides or works or at the place where the cause of action has arisen with regard to the jurisdiction of a matter. It was also argued that inasmuch as the cause of action being the termination of services, which took place at Chennai, the first respondent has necessary jurisdiction in law. I have also verified the appointment order and the order of dehiring and found that both the orders were sent to the petitioner at his residential address at Chennai.

8. Now I shall consider the decision relied on by both sides on the jurisdiction aspect, Mr. R. Viduthalai, learned counsel for the petitioner, relied on a decision of the Apex Court in Workmen v. Rangavilas Motors (P) Ltd., . He pressed into service the following observation and the ultimate conclusion arrived at by the Supreme Court: (para 14 at page 1043 in AIR)

'14??. As the High Court observed, there should clearly be some nexus between the dispute and the territory of the State and not necessarily between the territory of the state and the industry concerning which the dispute arose. This Court in Indian Cable Co. Ltd. v. Its Workmen 1962 (1) LLJ 409 (SC) held as follows:

'The Act contained no provisions bearing on this question, which must, consequently, be decided on the principles governing the jurisdiction of Courts to entertain actions or proceedings. Dealing with a similar question under the provisions of the Bombay Industrial Relations Act, 1946, Chagla, C.J., observed in Lalbhai Tricumlal Mills Ltd. v. Vin,

'But what we are concerned with to decide is: where did the dispute substantially arise? Now, the Act does not deal with the cause of action, nor does it indicate what factors will confer jurisdiction upon the labour Court. But applying the well-known tests of jurisdiction, a Court or Tribunal would have jurisdiction if the parties reside within jurisdiction or if the subject-matter of the dispute substantially arises within jurisdiction'.

In our opinion, those principles are applicable for deciding which of the States has jurisdiction to make a reference under Section 10 of the Act'.

Applying the above principles to the facts of this case it is quite clear that the subject-matter of the dispute in this case substantially arose within the jurisdiction of the Mysore Government.'

In that case, the head office of the workman concerned is situated at Krishnagiri but the workman was working in Bangalore. He was transferred from Bangalore to Krishnagiri. The further correspondences led to his removal from service. Aggrieved by the order of transfer and the subsequent removal, he had raised an industrial dispute. The Labour Court, after overruling all the objections regarding jurisdiction raised by the company, made the award, holding that his transfer as well as the removal from service were illegal and that he was entitled to overtime wages as well as increments. The High Court accepted the objections raised by the management and quashed the award. Aggrieved by the same, the workman filed an appeal to the Supreme Court. The Supreme Court, after holding that the subject matter of the dispute substantially arose within the jurisdiction of Mysore Government, allowed the appeal, set aside the judgment of the High Court and restored the award of the Labour court. It is clear from the above decision that by applying the well-known tests of jurisdiction, a Court or Tribunal would have jurisdiction if the parties reside within jurisdiction or if the subject-matter of the dispute substantially arises within jurisdiction.

9. The other decision referred to is in the case of Paritosh Kumar v. State of Bihar 1984 Lab. I.C. 1254. In that decision, the Full Bench of the Patna High Court, after finding that Industrial Disputes Act (14 of 1947) is silent on the issue of territorial jurisdiction and that provisions of the Civil Procedure Code are not specifically made applicable to the proceedings under the Act, and after analysing various decisions has held: (para 13, 14 and 16)

'13. Now an incisive analysis of the aforesaid authoritative enunciation of law would indicate that three clearcut principles or tests for determining jurisdiction emerge, therefrom. For clarity these may be first separately enumerated as under:

(i) Where does the order of the termination of services operate?

(ii) Is there some nexus between the industrial dispute arising from termination of the services of the workman and the territory of the State?

(iii) That the well-known test of jurisdiction of a civil Court including the residence of the parties and the subject-matter of the dispute substantially arising therein would be applicable.

14. Applying the above, one of the primary tests is as to where the impugned order of the termination of service of a workman in effect operates. In Rangavilas Motor's case, the Supreme Court in terms noticed that though the original order of transfer and the subsequent order of termination of the services of the workman were passed at Krishnagiri in Kerala yet in effect it operated at Bangalore where the workman was employed. Consequently the situs of the workman's employment in the case of the termination of his services is patently a paramount factor if not being wholly conclusive. It is within the area of employment that the order of termination operates and the workman ceases to be a workman and loses his right to hold the post and receive wages therefore. Therefore on the anvil of the principle of where the impugned order operates the situs of employment of the workman is patently significant. Can it possibly be said that the order of termination of a workman does not operate within the area of his employment? The answer, therefore, has to be in favour of the Tribunal having territorial jurisdiction over the place of work or the situs of employment.

16???Reference in this context may be made to Section 19 of the Civil Procedure Code which provides for the territorial jurisdiction for suits, for compensation, for wrongs to persons or moveables. In particular, Clause (c) of Section 20 of the Code provides that a suit shall be instituted in the Court within the local limits of whose jurisdiction the cause of action wholly or in part arises. It is axiomatic that the territory within which the services of an employee are wrongfully terminated would be the territory where the cause of action substantially arises and in a case if not wholly but a part of the cause of action so arises. On this acid test also the situs of employment of the workman would forthwith give jurisdiction to the Civil Courts and a fortiori to the Tribunals and the Labour Courts under the Act.'

It is clear from the above decision that the place of work of the workman or the situs of the employment is the relevant factor to decide the jurisdiction. Likewise, as observed in para 16 where part of cause of action arises, the Labour Court or Tribunal has jurisdiction to adjudicate the reference. Mr. N.V. Srinivasan, learned counsel for the 2nd respondent, also very much relied on the very same decision in support of his stand, A reading of the Full Bench decision of the Patna High Court, referred to above, would clearly show that the said decision is in favour of the contention raised by the learned counsel for the petitioner. After discussing all the aspects with reference to case laws, the Full Bench has observed that 'the tilt therein must necessarily be in favour of the workman on the firm foundation of the situs of employment rather than on the technicalities of the registered office of the industry which may well even be a multi national company.

10. Learned counsel for the petitioner also relied on a Division Bench decision of the Punjab and Haryana High Court in Ramlal v. Labour Court, Patiala . The Division Bench in para 14 has held thus:

' In the result, the answer to the first question is that the State Government within whose territorial limitation the industrial dispute arose and the orders of dismissal had been received and became operative, is the appropriate Government for referring the industrial dispute for adjudication??'.

In our case, I have already referred to the fact that the appointment order was communicated to the petitioner at his residential address at Madras (now Chennai) and the order of dehiring was also issued to him at the same address. In the light of the said factual position, the Division Bench decision referred to above supports the claim made by the petitioner.

11. The other decision referred to by Mr. R. Viduthalai is in National Engineering Industries Ltd., v. State of Rajasthan, wherein Their Lordships have held that the Industrial Tribunal is the creation of a statute and it gets jurisdiction on the basis of reference. They also held that it cannot go into the question on validity of the reference.

12. The last decision referred to by the learned counsel for the petitioner is in D.P. Maheswari v. Delhi Administration and Ors., wherein the Supreme Court has deprecated the practice of raising preliminary objection one way or other by the management just to prolong the litigation. No doubt, in our case, the preliminary objection raised relates to the jurisdiction of the Tribunal; hence it cannot be accepted that the first respondent-Tribunal has committed an error in entertaining the preliminary objection raised by the management.

13. I have already referred to the decision relied on by Mr. N.V. Srinivasan,, learned counsel for the second respondent, namely, Paritosh Kumar v. State of Bihar, 1984 L.I.C. 1254. I have also held that as per the Full Bench decision, the situs of employment is relevant criteria and the place of registered office is immaterial. Though it is contended by the learned counsel for the second respondent that the Tribunal/Court at Gujarat or Delhi alone has jurisdiction, inasmuch as the cause of action is bundle of facts and in view of the fact that part of cause of action arose at Chennai, I am unable to accept the contra argument made by Mr. N.V. Srinivasan. He also relied on two decisions in (1) J.&J. Dechane Distributors v. State of Kerala and (2) Workmen of Sri Ranga Vilas Motors (Private) Ltd., and Anr. v. S.R.V. Motors . A reading of the above decisions shows that there should be some clear nexus between the dispute and the territory of the State and not necessarily between the territory of the State and the industry concerning which the dispute arose. By pointing out the dictum arrived at in P.K. Mondal v. Union of India and Ors. he (learned counsel for the second respondent) contended that since neither the order of dehearing nor any other event occurred within the territorial jurisdiction of the first respondent, the Industrial Tribunal is justified in holding that it has no jurisdiction to adjudicate the dispute. The other decisions cited by him, namely, (1) Emerald Valley Estates v. Estates and Staffs' Union, South India, 1979 Lab.I.C. 86; (2) National Tobacco Co., Employees Union, Jullundur v. Manohar Singh and Anr., 1968 Lab.I.C. 1387; and (3) New Delhi General Mazdoor Union v. Government of India are also not directly applicable to the stand taken by the management. By pointing out another decision in Lipton Ltd., v. Their Employees, learned counsel for the 2nd respondent contended that in the absence of any branch office at Chennai and the petitioner was controlled only by the office at Gujarat and by the registered office at Delhi, the first respondent has no jurisdiction to consider the dispute. I have already referred to the fact that the registered office of the second respondent company is situated at Delhi and the petitioner was working at Gujarat on the date of his dehiring. Though Section 19 or 20 of the Code of Civil Procedure are made applicable to 'disputes' under the Industrial Disputes Act, by applying general principle, namely, 'cause of action' is a bundle of facts and in the light of the fact that the appointment order and the order of dehiring were served on the petitioner's residential address at Chennai and also of the fact that as per the terms of the agreement, the petitioner will be placed anywhere within the country of India where the Rig work is to be carried out by the second respondent, I am unable to appreciate the contentions raised by the learned counsel for the second respondent. The Industrial Disputes Act must be viewed as a beneficial legislation in the larger interest of industrial workers. I am also satisfied that by applying the well-known test of jurisdiction, namely, that a Court or Tribunal would have jurisdiction if the parties reside within the jurisdiction or if the subject-matter of the dispute substantially arose within the jurisdiction part of cause of action has arisen at Chennai. It is demonstrated before me that the petitioner is residing at Chennai and the same is found in the records of the second respondent. In such a circumstance, the dispute can be filed either in the place of the petitioner or the 2nd respondent is residing or working or where the cause of action has arisen wholly or in part. Hence the impugned order of the first respondent rejecting the industrial dispute purely on grounds of jurisdiction is erroneous in law and liable to be set aside.

14. It is also settled law that the first respondent has to decide a dispute comprehensively on all issues and has no right to decide preliminary issues as it is opposed to the law declared by the Supreme Court. The first respondent has also failed to adhere to the scheme of the Industrial Disputes Act which mandates expeditious resolution of the entire dispute. As stated earlier, I have verified and am satisfied that the order of appointment were issued to the petitioner at his residential address at Chennai and that the order of dehiring was also issued to him at the same address. In such circumstances, the dispute can be raised in the place where the petitioner or the 2nd respondent resides or works or the place where the cause of action has arisen with regard to the jurisdiction of a matter. The cause of action being the termination of service, which took place at Chennai, the first respondent has the necessary jurisdiction in law. I have already referred to the assertion made by the petitioner that as per his terms of appointment, he has to work anywhere in India where the Rig work is carried out. This assertion has not been denied by the second respondent. Though it is not relevant but it is worth-while to note that the 2nd respondent having received the notice, remained ex parte and the industrial dispute was decided in favour of the petitioner on 4.11.99 and the same was published in the Official Gazette on 18.12.99. Only at a later stage i.e., on 12.6.2000 the second respondent filed an application to set aside the ex parte award. No doubt, the first respondent allowed the said application on condition that the I.D.101 of 2001 has to be disposed of within a period of a six months and also ordered a cost of Rs. 5,000. Subsequently, the dispute was restored on payment of the cost to the files of the first respondent for adjudication.

15. In the light of what is stated above, I satisfied that the first respondent committed an error in holding that it has no territorial jurisdiction to try the referred industrial dispute. Accordingly, the impugned order of the first respondent dated 17.7.2001 is quashed. The first respondent is directed to take up the industrial dispute, namely, I.D.101 of 2001 on its file and dispose of the same on merits within a period of 6 (Six) months from the date of receipt of a copy of this Order, after affording opportunity to both parties. Writ Petition is allowed. No costs. WPMP No. 2211 of 2002 and WVMP No. 401 of 2002 are closed.


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