Bombay High Court
Mr. Anil Murlidharan vs M/S. Larsen And Toubro Limited on 19 March, 2019
Author: M. S. Karnik
Bench: M. S. Karnik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3517 OF 2016
Mr. Anil Murlidharan ... Petitioner.
D/24, Janaki Niwas, Sardar Nagar
Society, Mission Road, Nadiad,
Gujarat -387002.
V/s.
M/s. Larsen and Toubro Limited ... Respondent.
L & T House,
Navrojee Morarji Marg, Ballard Estate,
Mumbai - 400 001.
---
Mr. Neel G. Helekar, Advocate, for the Petitioner.
Mr. B. G. Goyal, Advocate with Shri T. R. Yadav for the
Respondent.
---
CORAM : M. S. KARNIK, J.
DATE : 19th MARCH 2019.
ORAL JUDGEMENT :
Rule. Rule is made returnable forthwith by consent of the parties and heard finally.Borey 1/28 ::: Uploaded on - 08/05/2019 ::: Downloaded on - 31/03/2020 23:09:24 :::
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2. By this petition, under Articles 226 and 227 of the Constitution of India, the order dated 6th April, 2015 passed by the Industrial Court, Mumbai, is under challenge.
3. The Petitioner, an employee of Respondent No.1-
M/s. Larsen and Toubro Limited approached the Labour Court at Mumbai, challenging termination of his services. He prayed for reinstatement on his original post w.e.f. 07.10.2005 with continuity of service and full back wages.
4. The petitioner was appointed as an Eutectician with the Respondent Company w.e.f. 26.07.1995. Learned counsel for the petitioner invited my attention to the order of appointment/offer of employment on probation dated 26.07.1995. He placed specific emphasis on clause no. 14 which reads thus :
"14. Disputes.
Any dispute between yourself and the Company concerning or relating to or arising out of this contract shall be subject to the jurisdiction of and be determined by the court of competent jurisdiction in Greater Bombay only."Borey 2/28 ::: Uploaded on - 08/05/2019 ::: Downloaded on - 31/03/2020 23:09:24 :::
spb/ 17wp3517-16.odt He further pointed out that by order dated 13.10.1995 the petitioner was posted at Vapi in Gujarat w.e.f. 16.10.1995. The petitioner's services came to be confirmed vide order dated 16/3/1996. In the order of confirmation it is mentioned that other terms and conditions of petitioner's employment remain the same as mentioned in the offer of employment dated 26.7.1995.
5. By order dated 06.06.2003, the petitioner was transferred from Vapi to Eutectic Section, Silchar. The petitioner's services came to be terminated while at Silchar w.e.f. 7/10/2005. This order of termination was challenged by filing complaint of unfair labour practice ('complaint' for short) before the Labour Court at Mumbai under section 28 read with items 1(a), (b), (d) (e) & (f) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ('the Act of 1971' for short).
6. Before the Labour Court, Respondent raised objection that as order of termination takes effect at Silchar Borey 3/28 ::: Uploaded on - 08/05/2019 ::: Downloaded on - 31/03/2020 23:09:24 ::: spb/ 17wp3517-16.odt where the petitioner was working and as the cause of action has arisen at Silchar the Labour Court at Mumbai will not have territorial jurisdiction to entertain the Complaint. This objection of the respondent was upheld by the Labour Court.
Vide order dated 12.03.2013, the complaint was dismissed as not maintainable by the Labour Court.
7. The petitioner filed revision before the Industrial Court, Mumbai under Section 44 of the 'Act'. The Industrial Court by the impugned order dated 06.04.2015 dismissed the revision.
8. Learned counsel for the petitioner assailing the order of Labour Court, firstly invited my attention to the appointment order dated 26.07.1995. He submits that this order was issued at Mumbai Head Office of Respondent No.
1. Clause-14 of the appointment order which is reproduced hereinbefore states that any dispute between petitioner or company shall be subject to the jurisdiction of the Court of competent jurisdiction in Greater Mumbai only. In view of this Borey 4/28 ::: Uploaded on - 08/05/2019 ::: Downloaded on - 31/03/2020 23:09:24 ::: spb/ 17wp3517-16.odt express clause, he would contend that the Labour Court at Mumbai has jurisdiction to entertain the complaint. Learned counsel further invited my attention to the order by which he was posted at Vapi to submit that even this order was issued at Mumbai. Learned counsel submits that even confirmation of the petitioner was made by order dated 16.03.1996 which was issued by the Head Office at Mumbai.
The subsequent order by which the petitioner was transferred from Vapi to Silchar is also issued from Mumbai Head Office.
9. Learned counsel for the Petitioner invites my attention to the termination order dated 21.09.2015 which has reference to the letter of contract of employment dated 26.07.1995. This letter further mentions that services of Petitioner stands terminated w.e.f. 21.09.2005. Learned counsel would submit that even this order of termination was issued by the Head Office at Mumbai. It is his submission that, as termination order issued from Mumbai office which refers to the original contract of the employment dated 26.07.1995 which was also executed at the Mumbai Office read with Borey 5/28 ::: Uploaded on - 08/05/2019 ::: Downloaded on - 31/03/2020 23:09:24 ::: spb/ 17wp3517-16.odt Clause 14 is sufficient to demonstrate that part of cause of action has arisen in Mumbai. Learned counsel relied upon the decision of the Hon'ble Supreme Court in the case of Nandram vs. Garware Polyster Limited reported in AIR 2016 Supreme Court 1077 to contend that even the Labour Court at Mumbai will have territorial jurisdiction as termination is effected from the office of employer situated in the territorial jurisdiction of such Labour Court.
10. Per contra, learned counsel for the Respondent would submit, relying on the decision of the Apex Court and Division Bench of this court in the case of Glaxo Smith Kline Pharmaceuticals Ltd. vs. Abhay Raj Jain & Anr., reported in 2008 III CLR 894 and the decision of the learned single Judge of this court - (as His Lordship then was) in the case of Manish Ashok Badkas vs. M/s. Novartis India Ltd. and another, in writ petition no. 2007 of 2009, dated 3rd November, 2009 to contend that it is only that Court within the territorial jurisdiction of which place where the petitioner was actually working at the time of his Borey 6/28 ::: Uploaded on - 08/05/2019 ::: Downloaded on - 31/03/2020 23:09:24 ::: spb/ 17wp3517-16.odt termination will have territorial jurisdiction to entertain the complaint. He would submit that situs of employment being at Silchar would be the governing factor in deciding the place where the cause of action has arisen, and therefore the Labour Court at Mumbai will not have territorial jurisdiction to entertain the complaint. The Labour Court does not derive jurisdiction merely because the order of termination is issued from the Head Office at Mumbai. He invited my attention to the findings of the Labour Court and the Industrial Court.
11. Learned Counsel for the respondent would submit that the issue regarding the territorial jurisdiction of the Labour Court vis-a-vis situs of employment is no more res-integra. He would rely upon the decision of the Hon'ble Apex Court in the case of Workmen of Shri Rangvilas Motors (P) Limited and another Vs. Shri Rangvilas Motors (P) Limited and others reported in AIR 1967 SC 1040 in support of his submissions.
12. Heard learned counsel for the parties at some length. There is no dispute that the offer of employment was Borey 7/28 ::: Uploaded on - 08/05/2019 ::: Downloaded on - 31/03/2020 23:09:24 ::: spb/ 17wp3517-16.odt issued from the Head Office at Mumbai. There is further no dispute that all orders of appointment, posting, transfer of the petitioner are issued from the Head Office at Mumbai. The order transferring the petitioner from Vapi to Silchar is also issued from the Head Office at Mumbai. Even the order of termination dated 21.09.2005 is issued from the head office of the Mumbai. The termination order refers to the contract of employment dated 26.07.2005 the conditions which forms the basis of termination of services of the petitioner.
13. To deal with the question of territorial jurisdiction of the Labour Court at Mumbai in respect of an employee terminated while serving at Silchar, it will be material to refer to some of the relevant provisions of the Act of 1971. Section 3(4) defines "Court" for the purposes of Chapters VI and VII to mean the Industrial Court, or as the case may be, the Labour Court. Section 3(10) defines "Labour Court" to mean a Labour Court constituted under section 6. Section 6 provides for constitution of a Labour Court, which reads thus;Borey 8/28 ::: Uploaded on - 08/05/2019 ::: Downloaded on - 31/03/2020 23:09:24 :::
spb/ 17wp3517-16.odt "6. Labour Court :- The State Government shall, by notification in the Official Gazette, constitute one or more Labour Courts, having jurisdiction in such local areas, as may be specified in such notification, and shall appoint persons having the prescribed qualifications to preside over such Courts:
Provided that, no person shall be so appointed, unless he possesses qualifications (other than the qualification of age), prescribed under Article 234 of the Constitution for being eligible to enter the judicial service of the State of Maharashtra; and is not more than sixty years of age."
14. Section 7 prescribes the duties of Labour Court, which reads;
"7. Duties of Labour Court :- It shall be the duty of the Labour Court to decide complaints relating to unfair labour practices described in item 1 of Schedule IV and to try offences punishable under this Act."
15. Section 26 provides for Unfair Labour Practices.
"26. Unfair labour practices :- In this Act, unless the context requires otherwise, 'unfair labour practices' mean any of the practices listed in Schedules II, III and IV."
16. Reading of the above provisions would clearly reveal that the State Government by notification in the official gazette shall constitute one or more Labour Courts having jurisdiction in such local areas as may be specified in such notification. Thus, the said Act prescribes for the territorial jurisdiction of the Labour Court constituted in respect of such Borey 9/28 ::: Uploaded on - 08/05/2019 ::: Downloaded on - 31/03/2020 23:09:24 ::: spb/ 17wp3517-16.odt local areas as specified in the notification. Section 7 then provides that it shall be duty of the Labour Court to decide complaints relating to unfair labour practices described in item 1 of Schedule IV that arise within the jurisdiction of such local areas prescribed by the notification issued by the State Government. The Labour Court exercises jurisdiction under the provisions of the Act of 1971 as regards complaints of unfair labour practices described in item 1 of Schedule IV which arise within the territorial limits of the jurisdiction of the Labour Court.
17. Sub-section (1) of Section 2 provides that the Act extends to the whole of the State of Maharashtra. Sub-section (2) of Section 2 says, it shall come into force on such date as the State Government may, by notification in the Official Gazette, appoint; and different dates may be appointed for different areas and for different provisions of this Act. Borey 10/28 ::: Uploaded on - 08/05/2019 ::: Downloaded on - 31/03/2020 23:09:24 :::
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18. The question for consideration is whether the Labour Court at Mumbai will have territorial jurisdiction to deal with the complaint of unfair labour practice in respect of termination of the employee working at Silchar at the time of termination. The other question is whether issuance of the order of termination from Mumbai Office will confer territorial jurisdiction on the Labour Court at Mumbai.
19. As indicated earlier, it is the contention of learned Counsel for the petitioner that the order of termination was issued from Mumbai Head Office ; the appointment/offer of employment of the petitioner is issued from the Mumbai office ; as per the contract of employment any dispute between the petitioner and company relating or arising out of the contract is subject to the jurisdiction by the Court of competent jurisdiction. This according to learned Counsel constitutes a cause of action for the Labour Court at Mumbai to exercise jurisdiction.
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20. This Court in the case of Lalbhai Tricumlal Mills Ltd v/s. Manubhai Motilal Vin and others reported in AIR 1955 Bom 463 had an occasion to consider the question as to the jurisdiction of the Labour Court at Mumbai to try a certain industrial dispute. The employee concerned was employed by the petitioner - Mills in their Branch Office in Mumbai and his services were terminated on 27/8/1953 when the Branch Office was closed. He wrote to the registered office of the Mills in Ahmedabad complaining of his dismissal and claiming to be reinstated. No reply was sent to this letter and the employee filed an application before the Labour Court for reinstatement and compensation. A point was raised by the petitioner - Mills that the Labour Court at Mumbai had no jurisdiction to try and dispose of the application made by the employee. After considering the relevant provisions of the Bombay Industrial Relations Act, 1946, this Court observed thus :-
"What is contended is that an industrial dispute only arises when an employee, dissatisfied by any action on the part of the employer approaches the employer in the manner laid down in the proviso to Section 42(4) and no agreement has been reached between the employer and the employee after that approach has been made, and Mr. Bhagwati says that till that approach takes place and the approach is found to be futile, there is no industrial dispute, and, says Mr. Bhagwati,' in this case the approach was made at Borey 12/28 ::: Uploaded on - 08/05/2019 ::: Downloaded on - 31/03/2020 23:09:24 ::: spb/ 17wp3517-16.odt Ahmedabad, the approach did not result in an agreement, and therefore the dispute arose in Ahmedabad and only the Labour Court at Ahmedabad can entertain this application. Turning first to S. 42(4) and the proviso, it is clear that the proviso is procedural and it obliges the employee to comply with the condition precedent laid down in the" proviso before he can approach the Labour Court. The proviso does not deal with the subject-matter of the industrial dispute at all, but it makes it necessary that certain procedure has got to be followed before the employee becomes entitled to approach the Labour Court. The arising of the dispute at a particular moment has also been laid down For another reason and that is to provide the starting point of time for limitation, because under Section 79(3) an application in respect of a dispute falling under Clause (a) of para. A of Sub-section (i) of Section 78 shall be made if it is a dispute falling under Sub-clause (iii) of the said clause, within three months of the employees concerned having last approached the employer under the proviso to Sub-section (4) of Section 42. But what we are concerned with to decide is: where : did the dispute substantially arise?
Now, the Act does not deal with the causes of action, nor does it indicate what factors will confer jurisdiction upon the Labour Court. But applying the well known tests jurisdiction, and Anr. Court or Tribunal would have jurisdiction if to parties reside within jurisdiction or if the subject-matter of the dispute substantially arises within jurisdiction. And therefore the correct approach, to this question is to ask ourselves -- where did this dispute substantially arise -- and in our opinion the only answer to that question can be that the dispute substantially arose in Bombay and not in Ahmedabad. What is the dispute'? The dispute is not as to whether the employee approached the employer in Ahmedabad and no agreement was arrived at. The dispute is whether the employer was justified in dismissing the employee, and inasmuch as the employment was in Bombay and the dismissal was in Bombay, it is difficult to understand how it can possibly be urged that the dispute did not substantially arise in Bombay. What Mr. Bhagwati says is that there is no dispute till an approach is made by the employee under the proviso to Section 42(4) It is true that there would be no industrial dispute till the procedure laid down in the proviso to Section 42(4) is satisfied, but in a more important sense there would be no dispute at all if there had been no dismissal by the petitioner of the fifth respondent. In order that there should be an industrial dispute two ingredients are necessary. One is the fact these the employee should be aggrieved in one of the manners laid down in the Act, and the second that he must comply-'with the procedure laid down in Section 42(4). If either ingredient is absent, there would be no dispute. But to suggest that because the industrial dispute will arise provided the second ingredient is complied with, one must completely ignore the first ingredient, is to put forward a Borey 13/28 ::: Uploaded on - 08/05/2019 ::: Downloaded on - 31/03/2020 23:09:24 ::: spb/ 17wp3517-16.odt contention which is untenable. If, therefore, both the ingredients are necessary, the question that we have to ask is whether the first ingredient is sufficiently important to constitute substantially the subject-matter of the dispute, and there can be no doubt that what the Labour Court will be considering and deciding would be whether the employee was wrongly dismissed or discharged by the employer. If that is going to be the subject-matter of the inquiry before the Labour Court, that subject-matter arose in Bombay and not in Ahmedabad. We express no opinion as to whether the Ahmedabad Court would equally have jurisdiction or not. We are only concerned with deciding whether on these facts the Bombay Labour Court' has jurisdiction, and in our opinion if as in this case the employee was employed in Bombay and dismissed in Bombay and he is making a complaint about his dismissal and wants reinstatement and compensation, the Bombay Labour Court has jurisdiction to decide this application. We, therefore, agree with the Industrial Court in the view it has taken,
6. The result is that the petition fails and be dismissed with costs.
7. Rule discharged."
21. The Division Bench of this Court after applying the well-known tests of jurisdiction in the facts of that case was of the opinion that the test to be applied would be where the dispute substantially arose. No doubt, this Court did not express any opinion as to whether the Ahmedabad Court would equally have jurisdiction or not. This Court was of the opinion that the Labour Court will be considering and deciding whether an employee was wrongly dismissed or discharged by the employer and that is the subject matter of the inquiry before Borey 14/28 ::: Uploaded on - 08/05/2019 ::: Downloaded on - 31/03/2020 23:09:24 ::: spb/ 17wp3517-16.odt the Labour Court, that subject matter arose in Mumbai and not in Ahmedabad.
22. Let me now consider the decision of the Hon'ble Supreme Court in the case of Workmen of Sri Ranga Vilas Motors (P) Ltd. (supra). The employee was engaged as a Foreman in the workshop of Sri Ranga Vilas Motors (P) Ltd. (Company). He was transferred from Bangalore to Krishnagiri where the head office of the Company was situated. The employee alleged that as per his conditions of employment he could not be transferred from Bangalore to Krishnagiri. The Company framed charges and removed him from service. The State Government made a Reference under Section 10 of the Industrial Disputes Act, 1947 for adjudication by the Labour Court at Bangalore. The Company took a stand that State Government of Mysore was not the appropriate Government to make a Reference.
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23. Their Lordships say that the proper question to be raised is 'where the dispute arise'. In paragraph 14 the Hon'ble Supreme Court held thus :-
"14. Therefore, the appeal must succeed unless the Company can satisfy us that the points decided against it should have been decided in its favour. This takes us to the other points. Mr. O. P. Malhotra strongly urges that the State Government of Mysore was not the appropriate Government to make the reference. He .says that although the dispute started at Bangalore, the resolution sponsoring this dispute was passed in Krishnagiri, and,, that- the proper test to be applied in the case of individual disputes is where the dispute has been sponsored. It seems to us that on the facts of this case it is clear that there was a separate establishment at 'Bangalore and Mahalingam was working there. There were a number of other workmen working in this place. The order of transfer, it is true, was made in Krishnagiri at the head office, but the order was to operate on a workman working in Bangalore. In our view the High Court was right in holding that the proper question to raise is : Where did the dispute arise ? Ordinarily, if there is a separate establishment and the workman is working in that establishment, the dispute would arise at that place. 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(1) 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 and Others :
'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 s. 10 of the Act".Borey 16/28 ::: Uploaded on - 08/05/2019 ::: Downloaded on - 31/03/2020 23:09:24 :::
spb/ 17wp3517-16.odt 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."
(emphasis supplied)
24. Coming to the facts of the present case, under the Act of 1971, Labour Court at Mumbai will have jurisdiction to decide complaints relating to unfair labour practices described in item 1 of Schedule IV that arise within the jurisdiction of such local areas prescribed by the notification issued by the State Government. The petitioner comes with a case that as the order of termination is issued at Mumbai, the dispute has arisen within the territorial jurisdiction of the Labour Court constituted for the local area of Mumbai. Though it is that the termination order was made at Mumbai Head Office, but the order was to operate on the petitioner, who was then working at Silchar. The question therefore is where did the dispute arise?
25. As held by Their Lordships in Workmen of Sri Ranga Vilas Motors (P) Ltd. (supra) and this Court in the case of Lalbhai Tricumlal Mills Ltd., there should clearly be some Borey 17/28 ::: Uploaded on - 08/05/2019 ::: Downloaded on - 31/03/2020 23:09:24 ::: spb/ 17wp3517-16.odt 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.
26. In my opinion, in the facts of the present case, as the petitioner was working at Silchar, in a separate establishment of the petitioner, the dispute would arise at that place. I find from the reading of the provisions of the Act of 1971 that the Labour Court is constituted under Section 6 for exercising jurisdiction in such local areas as may be specified in such notification to be issued by the State Government. Section 7 says that it is the duty of the Labour Court to decide complaints relating to unfair labour practices described in item 1 of Schedule IV and to try offences punishable under this Act. As held by Their Lordships there has to be clearly some nexus between the dispute and the territory of the State.
27. It would be apposite to also place reliance on the decision of the Division Bench of this Court in the case of Borey 18/28 ::: Uploaded on - 08/05/2019 ::: Downloaded on - 31/03/2020 23:09:24 ::: spb/ 17wp3517-16.odt Glaxo Smith Kline Pharmaceuticals Ltd. (supra), relevant portion of which read thus :-
"28. It is thus clear that it is the situs of the employment which would be the relevant factor to decide the place of cause of action for initiating any legal proceedings. Once it is not in dispute that the respondent, at the relevant time, was employed at Udaipur and he was sought to be transferred from Udaipur to Imphal (Manipur), it is obvious that the situs of employment of the respondent was sought to be changed from Udaipur to Imphal, both the places beyond the territory of the State of Maharashtra.
29. In the case of unfair labour practice, which is sought to be employed by the employer on account transfer of the employee from one place to another, the actual adoption of the unfair labour practice would be at the place from where the employee is either sought to be transferred or at the place where the employee is sought to be transferred. It cannot, by any stretch of imagination, be said to have resulted at the place from where mere order of transfer of the employee is issued. It is not the issuance of the order but it is the consequence of the order issued that would result in unfair labour practice to the employee. Being so, in case of alleged harassment consequent to the transfer resulting into unfair labour practice to the employee can result either at the place where the employee had been working prior to the issuance of the order of transfer or at the place where is actually transferred under such order. Being so, the cause of action on account of alleged unfair labour practice would arise only at one of these two places and not at any third place. Undoubtedly, in a case where an employee is merely sent to ascertain the possibility of having an establishment of the employer, till and until such establishment commences at any such place, it could not be said that the unfair labour practice would result at any place other than from where the employment of the employee is controlled. Considering the same, therefore, in Mohan Mhatre's case it was held that the place where the dispute substantially arises or where both the parties reside, that is the test to be applied to decide the issue of jurisdiction of the Court to entertain the proceedings relating to such dispute."
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spb/ 17wp3517-16.odt In Glaxo Smith Kline Pharmaceuticals Ltd. (supra), this Court was considering the case of transfer of an employee.
28. This Court in the case of Manish Ashok Badkar vs. M/s. Novartis India Ltd. and another, considered the issue of situs of the employment vis-a-vis the territorial jurisdiction of the Labour Court in the context of termination of services. Learned Single Judge of this Court (as His Lordship then was) observed thus :-
"2. The Labour Court cannot be held to be in error in coming to the conclusion that the termination of the services of the Petitioner who was employed in Madhya Pradesh would not give rise to a cause of action for instituting a complaint of unfair labour practices in the State of Maharashtra under the Maharashtra Recognition of Trade Unions and Prevision of Unfair Labour Practices Act, 1971. The judgment of the Division Bench in Glaxo Smith Kline holds that it is the situs of the employment which would be the governing factor in deciding the place where the cause of action for the institution of legal proceedings arise. It may be noted that in Glaxo Smith Kline also the order of appointment was issued in Mumbai and the order of transfer has also been passed from the head office at Mumbai. As a matter of fact, it was sought to be contended on behalf of the employee in that case that since the order was issued from the head office of the company at Mumbai, the cause of action arose not only at the place where the order was served but also at the place where it was issued and that every aspect of the service conditions had been controlled from Mumbai. On this basis it was urged that it could not be said that an unfair labour practice had not taken effect within the State of Maharashtra. These contentions were noted in paragraph 6 of the judgment. However, the Division Bench did not consider this to be relevant in order to enable the Industrial Court to entertain the complaint of unfair labour practices under the Act. Though the judgment in Glaxo Smith Kline, is in the case of an order of transfer the principles of law laid down there would be applicable Borey 20/28 ::: Uploaded on - 08/05/2019 ::: Downloaded on - 31/03/2020 23:09:24 ::: spb/ 17wp3517-16.odt to the facts of the present case also . The petitioner was employed in the State of Madhya Pradesh initially at Sagar until 1996 and thereafter at Ujjain until 19th February, 2003 when the order of termination was passed. In these circumstances, both the Labour Court and the Industrial Court having followed the binding judgment of the Division Bench, no case for interference under the supervisory jurisdiction of this Court is made out."
(emphasis supplied)
29. I may now refer to the decision of the Hon'ble Supreme Court in the case of Nandram (supra). It would be profitable to refer to the relevant portions of the decision in Nandram's case, which read thus :
"4. Though, the learned counsel on both sides had addressed in detail on several issues, we do not think it necessary to go into all those aspects mainly because in our view they are only academic. In the background of the factual matrix, the undisputed position is that the appellant was employed by the Company in Aurangabad, he was only transferred to Pondicherry, the decision to close down the unit at Pondicherry was taken by the Company at Aurangabad and consequent upon that decision only the appellant was terminated. Therefore, it cannot be said that there is no cause of action at all in Aurangabad. The decision to terminate the appellant having been taken at Aurangabad necessarily part of the cause of action has arisen at Aurangabad. We have no quarrel that Labour Court, Pondicherry is within its jurisdiction to consider the case of the appellant, since he has been terminated while he was working at Pondicherry. But that does not mean that Labour Court in Aurangabad within whose jurisdiction the Management is situated and where the Management has taken the decision to close down the unit at Pondicherry and pursuant to which the appellant was terminated from service also does not have the jurisdiction.
5. In the facts of this case both the Labour Courts have the jurisdiction to deal with the matter. Hence, the Labour Court at Aurangabad is well within its jurisdiction to consider the complaint filed by the appellant. Therefore, we set aside the order passed by the High Court and the Industrial Court at Aurangabad and restore the order passed by the Labour Court, Aurangabad though for different reasons."Borey 21/28 ::: Uploaded on - 08/05/2019 ::: Downloaded on - 31/03/2020 23:09:24 :::
spb/ 17wp3517-16.odt In Nandram's case, the employee was employed by the Company at Aurangabad. He was transferred to Pondicherry, consequent upon the decision to close down the unit at Pondicherry was taken by the Company at Aurangabad, the employee's services came to be terminated. The employee concerned was working at Pondicherry when his services were terminated. The Hon'ble Supreme Court held that though the employee was employed by the Company in Aurangabad, he was only transferred to Pondicherry, the decision to close down the unit was taken by the Company at Aurangabad and consequent upon that decision only the appellant was terminated. It was observed that therefore, it cannot be said that there is no cause of action at all in Aurangabad. The decision to terminate the Appellant has been taken at Aurangabad, necessarily part of the cause of action has arisen at Aurangabad. Their Lordships held that the Labour Court at Pondicherry is within its jurisdiction to consider the case of the employee when he was terminated, that does not mean that the Labour Court within whose jurisdiction the Management is Borey 22/28 ::: Uploaded on - 08/05/2019 ::: Downloaded on - 31/03/2020 23:09:24 ::: spb/ 17wp3517-16.odt situated and where the Management has taken the decision to close down the unit at Pondicherry and pursuant to which the appellant was terminated from service also does not have the jurisdiction. Their Lordships thus held that the Labour Court at Pondicherry as well as the Labour Court at Aurangabad have the jurisdiction to deal with the matter. (emphasis supplied)
30. In so far as the decision of Hon'ble Apex Court in the case of the Nandram vs. Garware Polyster Ltd. (supra), no doubt their Lordships have held that even the Labour Court at Aurangabad, within whose jurisdiction the management is situated and where the management has taken the decision to close down the unit at Pondicherry, pursuant to which the appellant was terminated from service, also has jurisdiction. Learned counsel for the Respondent would further submit that in the case before the Apex Court, unit at Pondicherry was closed down. The decision to close down the unit at Pondicherry was taken at Aurangabad, where Head Office is situated. According to him, it was in this situation that the Borey 23/28 ::: Uploaded on - 08/05/2019 ::: Downloaded on - 31/03/2020 23:09:24 ::: spb/ 17wp3517-16.odt Apex Court held that the Labour Court at Aurangabad will have jurisdiction. In my humble opinion, it was in the facts of that case their Lordships of the Apex Court have come to the conclusion that the Labour Court at Aurangabad will also have jurisdiction to consider the complaint of unfair labour practice as the unit at Pondicherry itself had closed down. The decision to terminate the employees was consequent to the decision of the Management to close down the unit at Pondicherry.
31. In the present case, situs of employment would be material, in as much as, it is only that the order of termination of services of the petitioner is issued from the Head Office at Mumbai, but at the time of termination of the services, the petitioner was working at Silchar. The order of termination was to operate at Silchar. The Respondent company is having an establishment at Silchar. In my opinion, merely because the order of termination is issued from the Head Office at Mumbai, would not confer territorial jurisdiction on the Borey 24/28 ::: Uploaded on - 08/05/2019 ::: Downloaded on - 31/03/2020 23:09:24 ::: spb/ 17wp3517-16.odt Labour Court at Mumbai to try and entertain complaint of unfair labour practices filed by the petitioner at Mumbai.
32. The Act of 1971 does not deal with the causes of action, nor does it indicate what factors will confer jurisdiction upon the Labour Court. Section 6 though provides for constitution of a Labour Court having jurisdiction in such local areas, as may be specified in such notification issued by the State Government. The Court within whose jurisdiction the dispute substantially arose will have the territorial jurisdiction to decide the dispute. The dispute having arisen substantially within the jurisdiction of the Court at Silchar, the Labour Court at Mumbai will not have territorial jurisdiction to deal with the complaint.
33. My attention was invited to the order dated 2 nd May, 2016 of this Court in the case of Federation of Medical and Sales Representatives' Association of India (FMRAI) and another vs. M/s. Sun Pharmaceuticals Industries Ltd. Borey 25/28 ::: Uploaded on - 08/05/2019 ::: Downloaded on - 31/03/2020 23:09:24 :::
spb/ 17wp3517-16.odt and others ((Writ Petition No. 712 of 2016) reported in 2016 SCC OnLine Bom 8679, to contend that learned Single Judge of this Court was of the opinion that the Hon'ble Supreme Court in the case of Nandram has taken a view which is directly contrary to the view in the case of Glaxo Smith Kline Pharmaceuticals Ltd. (supra). However, I find that these observations are prima facie in nature as the Writ Petition No. 712 of 2016 is admitted pending final decision.
34. By the contract of employment earlier referred, Clause 14 mentions that the disputes between the parties would be determined by the Court of competent jurisdiction in Greater Mumbai only. By virtue of this Clause can the parties confer jurisdiction on the Labour Court at Mumbai which it does not possess ? It is a well settled principle of law that consent cannot confer jurisdiction on a Court. The complaint is instituted by the petitioner before the Labour Court at Mumbai under the provisions of the Act of 1971. The Labour Court which is constituted in under the Act of 1971 has jurisdiction to Borey 26/28 ::: Uploaded on - 08/05/2019 ::: Downloaded on - 31/03/2020 23:09:24 ::: spb/ 17wp3517-16.odt entertain complaints of Unfair Labour Practices which have arisen in such local areas as may be specified in the Notification constituting the Labour Court. Therefore, for the Labour Court at Mumbai to get territorial jurisdiction, the cause of action must arise within the local area for which it is constituted and as specified in the Notification. By incorporating a clause in the agreement the parties cannot confer jurisdiction on the Labour Court at Mumbai when it has none. The Labour Court derives its jurisdiction under the provisions of the Act of 1971. It is not even the case of the petitioner that the respondents have ever waived their objection to the territorial jurisdiction and subjected itself to the jurisdiction of the Labour Court at Mumbai and later at a belated stage raised objection as regards the territorial jurisdiction. Thus it is the situs of employment which would be the governing factor in deciding the place where the cause of action for institution of legal proceedings arise.
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35. I have also gone through the reasons recorded by the Labour Court as well as Industrial Court. I see no reason to interfere with the orders passed by the Labour Court as well as the Industrial Court.
36. The petition is, therefore, dismissed.
37. Rule is discharged with no order as to costs.
(M. S. KARNIK, J.) Borey 28/28 ::: Uploaded on - 08/05/2019 ::: Downloaded on - 31/03/2020 23:09:24 :::