Delhi District Court
An Application Under Section33C(2) Of ... vs Ganesh Razzak & Ors on 4 August, 2007
1
IN THE COURT OF MS. REKHA RANI : POLC - XIII :
KARKARDOOMA COURTS: SHAHDARA : DELHI
LCA NO. 358/2006
BETWEEN
WORKMAN
MOHD. P. M. ISHAQUE, S/O SH. MACKRJAH
R/O 8/24 JALAL ROAD 5TH STREET,
MOTTUKOLLAI AMBUR TOWN,
DISTT. VELLORE (T.N.)
AND
MANAGEMENT
1. DIRECTR (Mr. Sanjeev Batra)
KIRAN OVERSEAS EXPORT LTD.
A2/21, MODEL TOWN, Delhi.
2. DIRECTR (Mrs. Kiran Batra)
KIRAN OVERSEAS EXPORT LTD.
D42, DEFENCE COLONY, NEW Delhi24.
3. DIRECTR M/s KIRAN OVERSEAS EXPORT LTD.
G. T. ROAD, RASOI, DISTT. SONEPAT (HARYANA)
ORDER
1. An application under section33C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) was filed by the applicant pleading therein the following facts :
He was appointed as 'Maintenance Engineer' on 31.08.1996. He was working under the control and supervision of management no.1 and 2. he was deputed to perform his duties with management no.3. He worked honestly and LCA NO. 358/2006 2 diligently yet the management did not allow him to work w.e.f. 26.10.2003 without any cause. Management has not cleared his dues amounting to Rs.10,20,920/ breakup whereof is given in para 6 of the statement of claim. He has prayed for direction to the management to pay him an amount of Rs.10,20,920/.
2. Management contested his application vide its written statement. A preliminary objection taken by the management is to the effect that claimant was appointed at Sonepat, Haryana and was performing his duties there. It is denied that he ever worked at Delhi. It is stated that in his notices dated 28.01.1998 and 09.02.2004 sent to respondent no.3 through his advocate, he admitted that he had been working as Maintenance Engineer at G. T. Road, Vill. Rasoi, Distt. Sonepat (Haryana). The notice dated 09.02.2004 was addressed to the managing director of respondent no.3 at Village Raoi, Distt. Sonepat, Haryana. Notice dated 28.01.1998 was sent to head office of the company at Chennai.
It is stated that in view of the settled law on industrial adjudication that situs of the employment of the workman determines the jurisdiction of the Tribunal, this court has no territorial jurisdiction to proceed with the case. LCA NO. 358/2006 3
It is also stated the claimant is not a 'workman' within the meaning of section 2(S) of the Act as he was performing supervisory duties. It is alleged that the work of the claimant was that of an officer of the company who used to take independent decisions for the company. It is stated that in view of the Hon'ble Apex Court's decision in MCD vs. Ganesh Razzak & Ors., (1995 Lab. I C.330) the claim is not maintainable under section33C(2) of the Act and the claim will lie only under section 10 of the Act.
3. In view of the pleading of the parties following preliminary issue was framed :
1. Whether this court has territorial jurisdiction to try the present claim ?
4. I have carefully perused the material available on record and have heard learned Authorized Representatives for the both sides. Preliminary Issue :
5. In Tara & Ors. Vs. Director, Social Welfare & Ors., 1998 LLR 882, the Hon'ble Apex Court held as under :
"It is clear that the question of maintainability of the LCA NO. 358/2006 4 applications under section 33C(2) was required to be determined at the threshold and the question of examining the appellants' claim on merits relating to their status could have been gone into only thereafter if the applications were held to be maintainable under Section 33C(2)."
6. Authorized Representative for the workman stated that since the management has its head office at Delhi, this court has jurisdiction to try this case.
7. Management, on the other hand, contended that it is only situs of the employment of the workman which determines the jurisdiction of this court to try an industrial dispute. He has referred to the case of Paritosh Kumar Pal an State of Bihar and Other 1985 (50) FLR 213 in which it was held that situs of the employment of the workman determines jurisdiction of the Tribunal in case of industrial dispute. It was observed as under :
"The Industrial Disputes Act,1947, is silent on the issue of territorial jurisdiction. It seems wellsettled that the Code of Civil Procedure has not in terms been made applicable to the proceedings under the Act. Consequently the specific provisions of the Code pertaining to LCA NO. 358/2006 5 jurisdiction do not stricto sensu govern the issue. But, even if the language of the specific section of the Code is not attracted yet the general principles and the value of tests underlying the jurisdiction of Vivil Courts are not entirely alien to the issue. This appears to be so both on principle and on binding precedent. The net result, therefore seems to be that though the section so the Code on the point of jurisdiction are not applicable with the force of their technical rigour yet in their absence the broader general principles underlying them would undoubtedly be relevant... The raw reality which is to be faced is whether the situs of the employment of a poor workman should determine the jurisdiction or exclusively the registered head office or the district business establishments of the employer industry... Therefore, it is held that the situs of the employment of the workman would determine the territorial jurisdiction of the Tribunal in cases of industrial disputes arising from the termination of such employment. Hence, in the instant case the State of Bihar was the appropriate Government and the reference LCA NO. 358/2006 6 made by it was consequently valid."
8. Workman himself admitted in para 2 of his statement of claim that was deputed to perform his duties with management no.3. Management in para 1 of preliminary objections of its reply stated that he was appointed at Sonepat, Haryana and he was performing his duties there. Management has referred to his notices dated 28.01.1998 and 09.02.2004 wherein the claimant admitted having worked as Maintenance Engineer at Sonepat, Haryana. In corresponding para of his rejoinder he has not denied the same. He has simply stated that the respondent is carrying on business at Delhi and Chennai and other states of India. It is further stated that respondent no.1 and 2 issued him appointment letter and had their head office at Delhi.
9. Workman has placed on record his notice dated 28.01.1998 addressed to the management at its office at Madras wherein he admitted that he "has been working as Maintenance Engineer at Sonepat, Haryana since 31st August 1996". Subsequent notice dated 03.11.2004 placed on record by the workman was addressed to the managing director of the respondent at Sonepat, Haryana and in the very first paragraph it is stated that "my client has worked with you on the permanent post of maintenance Engineer since his joining the LCA NO. 358/2006 7 duties from 31.08.1996 permanently" and in para 4 it is stated that "Inspite of that you have terminated the services of my client without any notice and holding any inquiry dt. on - 26.10.2003 which is against the principles of natural justice." It is therefore clear that the workman had worked at Sonepat and his services were terminated when he was working at Sonepat.
10. Simply because respondent no.1 and 2 are carrying on their business at Delhi and other states of India or they have their head office at Delhi, the same would not confer jurisdiction on this Court when the situs of employment of the claimant was admittedly at Sonepat, Haryana.
9. In M/s D.L.F. Universal Ltd. vs. The Government of National Capital Territory, Delhi & others 2002 LLR 407 in which respondent no.5 had been working at Gurgaon as an Architect from day one. Termination letter dated 30.4.1998 was also issued at Gurgaon which was a cause for respondent no.5 to raise the dispute and consequently seek reference. Government of NCT of Delhi referred the dispute for adjudication. Petitioner filed writ petition challenging that the impugned order of reference dated 9.11.1999 was without jurisdiction. Impugned order of reference was quashed. Referring to Full Bench Decision of Patna High Court in Paritosh Kumar Pal v. State of Bihar & LCA NO. 358/2006 8 others 1984 Lab IC 1254 our Hon'ble High Court observed that the situs of employment and cause of action will determine territorial jurisdiction.
10. Hon'ble High Court further referred to Rangavilas Motor's case AIR 1967 SC 1040. In that case although the original order of transfer and subsequent order of termination of the services of the worker was passed at Krishnagiri yet in fact it operated at Bangalore where the worker was employed. It was held that on the anvil of the principle where the impugned order operates situs of the worker where the worker is employed is patently significant and tribunal at the situs of employment will have territorial jurisdiction.
11. So its an admitted case that claimant never worked with the respondent at Delhi. Merely because a formal order of appointment was issued from the head office at Delhi the same does not confer territorial jurisdiction on this court. In M/s D.L.F. Universal Ltd. (Supra) admittedly the order of appointment was issued from the head office at Delhi yet the order of reference was quashed by holding that the same does not vest jurisdiction in the Government of NCT of Delhi to make reference.
LCA NO. 358/2006 9
12. In Hindustan Samachar v. State of Orissa and Others 1979 LAB. I.C. 106 the petitioner an all India News Agency had its office at Delhi and opposite party no.4 was serving as a Journalist at Bhubaneswar under the branch office at Cuttack in Orissa. Services of party no.4 having been terminated he raised an industrial dispute in respect of which a reference was made U's 10 of the Act by the Orissa Government. It was held that Orissa Government was the appropriate government to refer the labour court as opposite party no.4 was being paid his wages from Cuttack and Cuttack office was exercising some control over him and the order of termination was served on party no.4 through Cuttack office while he was employed at Bhubaneswar. It was held that the mere fact that final administrative control was vested at Head office at Delhi and that the order of termination was made by the Head Office will not make Delhi the place where the dispute arose. It was held that nexus should be between the dispute and the territory of the state and the dispute arose within the limits of the Government of Orissa consequent upon termination of services of party no.4.
In the present case the dispute arose outside the jurisdiction of Delhi. He was terminated when he was working at Sonepat, Haryana.
13. In S.N. Sunderson and CO. v. Presiding Officer Labour Court No.1, LCA NO. 358/2006 10 Jabalpur, 1973 LAB. I.C. 991 (V. 6 C212) petitioner was a registered partnership firm of which head office was at Delhi. Petitioner ran a brick factory at Katni. The petitioner passed an order removing second respondent from service. During the course of proceedings the petitioner raised a preliminary objection that the Government as contemplated within Section 2 (a) of the Act was a Delhi Government and not Madhya Pradesh government. The Hon'ble Madhya Pradesh High Court relying upon the judgment of Hon'ble Supreme Court in Rangavilas Motor case (supra) held that it has always to be ascertained where the dispute arose. It was further held that there should be some nexus between the dispute and territory of the state and accordingly it was held that the dispute arose in Katni in M.P. and no part of the dispute arose at Delhi where only head office of petitioner firm was located.
14. In Siemens Limited v. Presiding Officer, Additional Industrial TribunalcumAdditional Labour Court, Hyderabad and another 2003 LLR 116 worker was working at Hyderabad (A.P.). He was transferred to Manipal (Karnataka). He refused to go to Manipal. He was informed by a letter dated 3.10.1994 that he ceased to have link with Hyderabad Office. The labour court held that there was concurrent jurisdiction for raising dispute either at Hyderabad or Manipal. The award was challenged. Award was set aside by the LCA NO. 358/2006 11 Hon'ble High Court and it was held that situs of employment of worker was at Manipal w.e.f. 3.10.1994 as indicated in the order of transfer and therefore Hyderabad Tribunal did not have jurisdiction to adjudicate the dispute.
15. It is an admitted case that the claimant's services were terminated when he was working at Sonepat therefore cause of action arose at Sonepat office which was situs of his employment at the time of termination. Delhi has never been his situs of employment nor any part of cause of action accrued at Delhi. Therefore, this court lacks territorial jurisdiction to adjudicate the dispute.
16. Further disputed status of the claimant as 'workman' cannot be adjudicated in proceedings U/s 33C(2) of the Act as is evident from the following judgments :
17. In Central Group and Others And Motiram S. Thakare 2005 II LLJ 492, Labour Court's jurisdiction under section 33C(2) of the Act read with Rule 62 of the Industrial Dispute (Central) Rules, 1957 to decide the status of the claimant as workman arose for consideration. The Hon'ble High Court observed that Labour Court could not adjudicate upon the status of the claimant LCA NO. 358/2006 12 as a workman under section 33C(2) of the Act.
"18. It is, therefore, to be held that the Labour Court while dealing with the application under Section 33C(2) of the Industrial Dispute Act, 1947 cannot deal with the issue relating to the status of the applicant as the workman and such an issue is not an incidental issue in such proceedings but it relates to jurisdictional fact and in the absence of such jurisdictional fact, the Court is not empowered to entertain the application under section 33C(2) of the said Act." (Emphasis added)
18. In South Central Railway, Secunderabad vs. Labour Court, Hyderabad, And Another 1983 FJR Vol63 p 171 it was held that the jurisdiction of Labour Court is different from that of a Civil Court and it must be shown to have jurisdiction which depends on the status of the claimant as workman. It was further held that proceedings under section 33C(2) of the Act are in the nature of execution proceeding. Therefore, Labour Court cannot go into the question whether the claimant is a workman in these proceedings. I quote the relevant observations:
LCA NO. 358/2006 13
"Though the Labour Court may initially entertain the petition, when the employer denies that the petitioner is a workman, it cannot go into that question, for, under section 33C(2) a right vested in a workman may be enquired into even if that right is denied, but not whether a person claiming the right is a "workman" at all."
19. In view of the aforesaid the issue is decided against the claimant and in favour of the management. Ordered accordingly. File be consigned to record room.
Announced in the open PRESIDING OFFICER
court today LABOUR COURT NO. XIII
Date : 04.08.2007 KARKARDOOMA COURTS
DELHI
LCA NO. 358/2006