Jharkhand High Court
Central Bank Of India Represented ... vs Their Workman Sri Dinanath Tiwary on 13 December, 2018
Equivalent citations: 2019 (2) AJR 185, (2019) 160 FACLR 567 (2019) 2 JCR 378 (JHA), (2019) 2 JCR 378 (JHA)
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No.-4995 of 2018
Central Bank of India represented through its Deputy Regional
Manager, Purnia Region namely Ebline Bernadette Nandi, wife of
Mr. Shyamal Nandi, resident of Sneh Bhawan, Bhatta Bazar, Jhanda
Chowk, Near Central Bank Regional Office, Purnia (Bihar)
...Petitioner
-V e r s u s-
Their Workman Sri Dinanath Tiwary .... Respondents
CORAM: - HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioner :- Mr. Sachin Kumar, Advocate Ms. Sweta Kumari, Advocate For the Respondent :- Mr. Prabhash Kumar, Advocate Mr. Dharmendra Kumar Malityar, Advocate Order No.-04 Dated: 13.12.2018 The present writ petition has been preferred for quashing the order dated 19.07.2017 passed by the Labour Court, Bhagalpur in Misc. Case No. 03 of 2016 filed under section 33(C)(2) of the Industrial Disputes Act, 1947 (in short "the Act, 1947"). Further prayer has been made for quashing the Certificate Case No. 01/2018-19 presently pending before the Certificate Officer-cum- District Panchayat Raj Officer, Bhagalpur.
2. The learned counsel for the petitioner submits that the respondent-workman while working as a Cashier in Central Bank of India at Nath Nagar Branch, Bhagalpur was dismissed from service for committing misconduct within the meaning of Clause 19.05 (J) of Bipartite Settlement, 1968. An industrial dispute was raised by the workman and a reference was made to the Central Government Industrial Tribunal No. 1 (CGIT), Dhanbad, who vide order dated 20.07.2012 passed in Reference No. 35 of 2007 answered the reference in favour of the workman by holding that he is entitled to full back wages, increments and allowances w.e.f 17.02.1989 till the date of retirement. The management challenged the award dated 20.07.2012 by preferring writ petition being W.P. (L) No. 6535 of 2012 and this Court, vide order dated 11.08.2016 granted stay subject to payment of 50% of the back wages and 50% of the Gratuity amount to the workman. Being aggrieved by the part of the 2 order dated 11.08.2016, the petitioner preferred L.P.A No. 73 of 2017 which was withdrawn vide order dated 12.04.2018. The respondent-workman filed an application under Section 33-C(2) of the Act, 1947 being Misc. case No. 3 of 2016 before the Labour Court, Bhagalpur for quantification of the amount in terms with the award which was disposed of on 19.07.2017 with a direction to the petitioner to pay the determined amount within 30 days of the order failing which interest @ 12% pm shall be payable. Subsequently, Certificate Case no. 01/2018-19 has been initiated against the petitioner for recovery of the amount as per order dated 19.07.2017 which is pending in the court of District Certificate Officer, Bhagalpur. Since, there are several infirmities in the order dated 19.07.2017 passed by the Labour Court, Bhagalpur, the same has been challenged by the petitioner by way of the present writ petition.
3. Admittedly, the Labour Court, Bhagalpur comes under the territorial jurisdiction of the Patna High Court. It is however contended by the learned counsel for the petitioner that Jharkhand High Court is well within its jurisdiction to entertain the present writ petition filed for quashing the order passed by the Labour Court at Bhagalpur as the said order has been passed in pursuance of the order of this Court passed in W.P.(L) No. 6535 of 2012. Moreover, the original award has been passed by the CGIT situated at Dhanbad which comes under the territorial jurisdiction of the Jharkhand High Court.
4. In the case of Ambica Industries v. CCE, reported in (2007) 6 SCC 769, the appellant of the said case was assessed at Lucknow which was challenged before CESTAT, New Delhi having jurisdiction to hear the appeal arising from the State of Uttar Pradesh, National Capital Territory of Delhi and the State of Maharashtra. Aggrieved by the order of the CESTAT, an appeal was filed before the Delhi High Court in terms with Section 35-G of the Central Excise Act, 1944. Learned Division Bench of Delhi High Court was of the view that it had no territorial jurisdiction in the matter. Thereafter the order of Delhi High Court was challenged by the assesse before the Hon'ble Supreme Court. While dismissing the 3 appeal preferred by the assesse, the Hon'ble Supreme Court has held as under:-
"14. Furthermore, when an appeal is provided under a statute, Parliament must have thought of one High Court. It is a different matter that by way of necessity, a tribunal may have to exercise jurisdiction over several States but it does not appeal to any reason that Parliament intended, despite providing for an appeal before the High Court, that appeals may be filed before different High Courts at the sweet will of the party aggrieved by the decision of the tribunal.
15. In a case of this nature, therefore, the cause of action doctrine may not be invoked.
38. We have noticed hereinbefore that if the decision of the High Court in the aforementioned question is taken to its logical conclusion, the same would lead to a great anomaly. It would also give rise to the problem of forum shopping. We may notice some examples to show that the determination of the appellate forum based upon the situs of the tribunal would lead to an anomalous result. For example, an assessee affected by an assessment order in Bombay may invoke the jurisdiction of the Delhi High Court to take advantage of the law laid down by it which may be contrary to judgments of the High Court of Bombay. This cannot be allowed. (See Suresh Desai and Associates v. CIT [(1998) 230 ITR 912 : (1998) 71 DLT 772 (Del)] , ITR at pp. 915-17 and CCE v. Technological Institute of Textile [(1998) 76 DLT 862 (DB)] .)
41. Keeping in view the expression "cause of action" used in Clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction thereof accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter though the doctrine of forum conveniens may also have to be considered."
5. The Hon'ble Supreme Court in a judgment rendered in the case of Kusum Ingots & Alloys Ltd. v. Union of India & Another, reported in (2004) 6 SCC 254 held thus:-
Forum conveniens
30. We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.
[See Bhagat Singh Bugga v. Dewan Jagbir Sawhney [AIR 1941 Cal 670 : ILR (1941) 1 Cal 490] , Madanlal Jalan v. Madanlal [(1945) 49 CWN 357 : AIR 1949 Cal 495] , Bharat Coking Coal Ltd. v. Jharia Talkies & Cold Storage (P) Ltd. [1997 CWN 122] , S.S. Jain & Co. v. Union of 4 India[(1994) 1 CHN 445] and New Horizons Ltd. v. Union of India [AIR 1994 Del 126] .]
6. In the case of Sterling Agro Industries Ltd. v. Union of India reported in AIR 2011 Delhi 174, a Five Judges Bench of the Delhi High Court considered the question as to whether the petitioner-industry which was situated in the state of Madhya Pradesh could challenge an order before the Delhi High Court on the ground that the office of the revisional authority i.e. the Joint Secretary to the Government of India was situated in Delhi. While considering the rival submission, the Court also discussed the concept of 'forum conveniens' and observed as under:-
"33. In view of the aforesaid analysis, we are inclined to modify, the findings and conclusions of the Full Bench in New India Assurance Company Limited (supra) and proceed to state our conclusions in seriatim as follows:
(a) The finding recorded by the Full Bench that the sole cause of action emerges at the place or location where the tribunal/appellate authority/revisional authority is situate and the said High Court (i.e., Delhi High Court) cannot decline to entertain the writ petition as that would amount to failure of the duty of the Court cannot be accepted inasmuch as such a finding is totally based on the situs of the tribunal/appellate authority/revisional authority totally ignoring the concept of forum conveniens.
(b) Even if a miniscule part of cause of action arises within the jurisdiction of this court, a writ petition would be maintainable before this Court, however, the cause of action has to be understood as per the ratio laid down in the case of Alchemist Ltd. (supra).
(c) An order of the appellate authority constitutes a part of cause of action to make the writ petition maintainable in the High Court within whose jurisdiction the appellate authority is situated. Yet, the same may not be the singular factor to compel the High Court to decide the matter on merits. The High Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.
(d) The conclusion that where the appellate or revisional authority is located constitutes the place of forum conveniens as stated in absolute terms by the Full Bench is not correct as it will vary from case to case and depend upon the lis in question.
(e) The finding that the court may refuse to exercise jurisdiction under Article 226 if only the jurisdiction is invoked in a malafide manner is too restricted/constricted as the exercise of power under Article 226 being discretionary cannot be limited or restricted to the ground of malafide alone.5
(f) While entertaining a writ petition, the doctrine of forum conveniens and the nature of cause of action are required to be scrutinized by the High Court depending upon the factual matrix of each case in view of what has been stated in Ambica Industries (supra) and Adani Exports Ltd. (supra).
(g) The conclusion of the earlier decision of the Full Bench in New India Assurance Company Limited (supra) "that since the original order merges into the appellate order, the place where the appellate authority is located is also forum conveniens" is not correct.
(h) Any decision of this Court contrary to the conclusions enumerated hereinabove stands overruled."
7. I am in respectful agreement with the view taken by the Delhi High Court in the case of Sterling Agro Industries Ltd. (supra). A writ petition filed against an order would be maintainable in the High Court within whose territorial jurisdiction the cause of action has arisen, at least in part, subject to the application of the doctrine of forum conveniens. The situs of the subordinate Court/Tribunal/Authority is not the only relevant factor to decide the jurisdiction of the High Court.
8. In the present case, it appears that the entire cause of action has arisen within the territory of State of Bihar. No cause of action has arisen within the State of Jharkhand except the fact that the CGIT is situated in Dhanbad i.e. within the State of Jharkhand. Previously also, the orders of the disciplinary authority and appellate authority were challenged before the Patna High Court by the respondent and appropriate orders were passed. Thus, on applying the doctrine of forum conveniens, the present writ petition is dismissed being not maintainable before this court. However, the petitioner is at liberty to move before the Patna High Court for appropriate relief.
(Rajesh Shankar, J.) Ritesh/A.F.R.