Delhi High Court
D.L.F. Universal Ltd. vs Govt. Of National Capital Territory, ... on 28 February, 2002
Equivalent citations: 96(2002)DLT825, 2003(1)SLJ77(DELHI)
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT Sanjay Kishan Kaul, J.
Rule.
1. With the consent of learned Counsel for the parties the matter is taken up for final disposal.
2. The writ petition has been filed challenging the impugned order dated 9.11.1999 of the Government of NCT of Delhi referring the disputes raised by respondent No. 5, an Architect, earlier employed with the respondent. An offer of appointment was made to the petitioner on 26.8.1993 and the appointment letter was issued to the petitioner on 29.9.1993. The services of the petitioner were terminated vide letter dated 30.4.1998.
3. Mr. Saini, learned Counsel for the petitioner, contends that there is no authority with the concerned officer in the NCT of Delhi to make the said reference in view of lack of territorial jurisdiction. Mr. Saini contends that respondent No. 5 was anointed as an Architect to work in the Real Estate Division in terms of the appointment letter dated 29.9.1993 and from the first day itself was working at Gurgaon. It is further stated that company leased accommodation was also made available to respondent No. 5 at Gurgaon as would be apparent from the letter dated 29.1.1994. Mr. Saini referred to the Full Bench decision of Patna High Court in Paritosh Kumar Pal v. State of Bihar and Ors., 1984 Lab. I.C. 1254, to contend that even though the Industrial Disputes Act is silent on the issue of territorial jurisdiction, it has been observed that the general principles underlying jurisdiction of Civil Courts would be applicable. The Full Bench of the Patna High Court considered in depth the issue of jurisdiction of the Tribunal and concluded that the situs of the employment of the workman would determine the territorial jurisdiction in the case of industrial dispute arising from the termination of such employment. The relevant paragraphs dealing with the issue are as under:
"13. Now an incisive analysis of the aforesaid authoritative enunciation of law would indicate that three clear-cut principles or tests for determining jurisdiction emerge, there from. 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 (supra), 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 the 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 service 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 received 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 favor of the Tribunal having territorial jurisdiction over the place of work or the situs of employment.
15. Again on the second principle attached to the industrial dispute having some nexus with the territory of the State, the situs of employment of the workman assumes signal importance. Once a firm finding is arrived at that the workman was employed within a specific territory or State, the termination of his services therein has an obvious and direct nexus with such territory or such State. Consequently, on the nexus test also the situs of employment of the workman has a direct connection with the territory where such employment is terminated. To put it in the converse, where the industrial dispute pertains to the termination of the employment of a workman, can it possibly be said that the situs of such employment would not have a direct nexus with the territory and the dispute? It calls for a pointed notice that in Rangavilas Motor's case (supra), their Lordships in terms approved the High Court's view that this nexus has to be betwixt the industrial dispute and the territory of the State and not necessarily with the industry or its headquarters as such.
16. Coming now to the third principle, it appears to me that by binding precedent it is now well-established that the well-known test of jurisdiction of the Civil Courts would be equally attracted to the situation in the absence of any provision in the Act on the point. Apart from the repeated affirmance of Lalbhai Tricumlal Mill's case (AIR 1995 Bom. 463) (supra) [which specifically held that the well-known test of jurisdiction would be applicable by the final Court in Indian Cable Co.'s case (1962) 1 Lab. LJ 409 (SC) (supra)] it was expressly observed therein as follows:
'.....The Act contains no provisions bearing on this question, which must, consequently, be decided on the principles governing the jurisdiction of Courts to entertain actions of proceedings.' And again:
"In our opinion, these principles are applicable for deciding which of the States has jurisdiction to make a reference under Section 10 of the Act."
Now, in applying the above, one may either assume fictionally that there is no Industrial Disputes Act in force or that the workman in terms elects (where it is permissible in law) to resort to the ordinary civil remedy for the wrongful termination of his services and prefers a suit for damages therefore. Obviously, in such a situation the territorial jurisdiction would undoubtedly be of the Courts within whose territory the workman was employed and as in the present case it would be at Patna and in any case in the State of Bihar. 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 movables. 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.
17. To close this aspect it would appear that the three principles of the test indicated in Rangavilas Motor's case (supra), would all individually seem to be amply satisfied in a case of the present kind and, therefore, it appears to me that the issue is governed by way of analogy by the enunciation of the law by the final Court itself."
4. Mr. Saini has also referred to the judgment of learned Single Judge of Punjab and Haryana High Court in Sohan Singh v. Labour Court and Anr., 1998 LLR 1164, where it was held that for determining the appropriate Government competent to make reference of the dispute due regard has to be given to the place where the dispute arises. The posting of the workman was held to be the relevant factor in that case.
5. Admittedly, though the order of appointment has been issued from the Head Office of the petitioner at Delhi, the registered officer of the petitioner is at Gurgaon. However, that is not the material consideration. Respondent No. 5 from day one had been working at Gurgaon as an Architect. Company leased accommodation was also provided to the respondent No. 5 at Gurgaon. Thus the situs of the employment has throughout been in Gurgaon and not at Delhi. The termination letter dated 30.4.1998 was also issued at Gurgaon which is the cause for respondent No. 5 raising the disputes and consequently seeking reference. Whatever tests are applied in the case of the petitioner as laid down in Paritosh Kumar Pal's case (supra), the only conclusion would be that the jurisdiction would be of the competent Courts at Gurgaon and it is for the concerned Government to consider whether a reference is or is not liable to be made.
6. In view of the aforesaid the jurisdiction does not vest in the Government of NCT of Delhi to make the reference since the disputes have not arisen at Delhi and the issue would again be squarely covered by the ration of Sohan Singh's case (supra).
7. The impugned order of reference dated 9.11.1999 is consequently quashed leaving it open to respondent No. 5 to approach the appropriate Forum for making a reference, if it is so permissible.
Parties are left to bear their own costs.
C.M. 392/2000Dismissed as infructuous.