Delhi High Court
Hindustan Lever Ltd. A Company ... vs Industrial Tribunal-I At Present ... on 27 September, 2004
Equivalent citations: 114(2004)DLT394, (2005)ILLJ453DEL
Author: Madan B. Lokur
Bench: Madan B. Lokur
JUDGMENT Madan B. Lokur, J.
1. An answer to a somewhat straightforward question of territorial jurisdiction in an industrial dispute has remained pending for almost fifteen years in this Court and about twenty years overall. While this is disturbing enough, a second round, relating to the merits of the dispute will now commence after the issue of territorial jurisdiction is decided. How long that will take for resolution is another question altogether. I think it is slowly, but surely, becoming critical for all of us to devise some strategy to deal with this mass of arrears so that such enormous delays become a thing of the past.
2. The Petitioner's grievance lies in a decision taken in an order dated 4th February, 1989 passed by Industrial Tribunal No.1, New Delhi in O.P. No.22 of 1984. In the impugned order, the learned Tribunal held that an approval application filed by the Petitioner under the provisions of Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short the Act) was not maintainable in Delhi. Accordingly, the learned Tribunal dismissed the application without entering into an inquiry on merits.
3. It appears that at all relevant times, the Respondent was the Chairman of the Hindustan Lever Mazdoor Sabha, Ghaziabad Unit. He has been involved in considerable litigation with the Petitioner, the relevance of this being apparent a little later. Some of the cases between the parties are:
(i) Misc. Case No.37 of 1975 being an application filed by the Respondent under Section 33-C(2) of the Act in the Labour Court, Meerut for recovering dearness allowance payable according to the progressive linkage with the cost of living index. According to the Respondent, this was paid less to him due to a unilateral freeze on the basis of an alleged settlement with another Union.
(ii) Industrial dispute No.47 of 1976 in the Labour Court, Meerut later renumbered as No.42 of 1978 in the Labour Court, Ghaziabad raised by the Respondent challenging his transfer by an order dated 26th September, 1975 from Ghaziabad (where he was working) to Delhi. During the pendency of this dispute, the Respondent joined his Branch Office in Delhi, though under protest.
(iii) Misc. Case No.1 of 1982 being a complaint filed by the Respondent in January 1982 under Section 33 of the Act read with Section 6F of the U.P. Industrial Disputes Act in the Labour Court, Ghaziabad where the dispute relating to his transfer was pending. This complaint arose because the Petitioner froze the dearness allowance and withdrew the canteen facilities hitherto available to the Respondent.
(iv) I.D. No.568 of 1983 being an industrial dispute raised by the Petitioner's employees (other than the Respondent) in the Industrial Tribunal, Delhi because the Petitioner froze their dearness allowance and also withdrew their canteen facilities.
4. On 28th October, 1983 the Petitioner issued a charge sheet to the Respondent alleging that he was habitually and unauthorisedly absent from duty. The Respondent, of course, denied the allegation and after a domestic inquiry, his services were terminated by an order of dismissal dated 10th August, 1984. Immediately thereafter, the Petitioner filed an application under Section 33(2)(b) of the Act before the learned Tribunal (in I.D. No.568 of 1983) seeking approval of the order of dismissal. The application was numbered as O.P. No.22 of 1984. The impugned order has been passed in this O.P.
5. During the pendency of the O.P., the industrial dispute regarding the validity of the Respondent's transfer from Ghaziabad to Delhi (Case No.42 of 1978) was decided by the Labour Court in Ghaziabad on 30th April, 1985. It was held by the Labour Court that the transfer of the Respondent from Ghaziabad to Delhi was illegal, unjustified, mala fide and vindictive. It is admitted by both the parties that the Award dated 30th April, 1985 has been challenged by the Petitioner in a writ petition which is pending in the Allahabad High Court.
6. While deciding the O.P., the learned Tribunal took into consideration the Award passed by the Labour Court on 30th April, 1985 and on the basis of that Award it was concluded that since the transfer order had been set aside, the Respondent is deemed to have continued in employment in Ghaziabad as if no such transfer order was passed. It was also held that the Respondent was not a concerned workman in I.D. No.568 of 1983 but he was positively concerned with I.D. No.42 of 1978 pending in the Labour Court in Ghaziabad. It was, therefore, held that the learned Tribunal in Delhi did not have the territorial jurisdiction to entertain the approval application. Consequently, an enquiry into the merits of the dispute was not conducted.
7. Learned counsels for the parties were heard on 13th, 16th and 18th August, 2004 when judgment was reserved.
8. The only question that I'm required to decide is whether the learned Tribunal was correct in coming to the conclusion that it had no territorial jurisdiction to entertain the application filed by the Petitioner.
9. Learned counsel for the Petitioner submitted that the learned Tribunal in Delhi had the territorial jurisdiction to entertain the application and he submitted that there are three relevant factors that are required to be taken into consideration for this purpose, namely, that the Respondent was working in Delhi, that he was alleged to have committed misconduct in Delhi and finally he was dismissed by an order passed in Delhi. On the other hand, the contention of learned counsel for the Respondent was that the Petitioner had filed the application under Section 33(2)(b) of the Act in Delhi with a mala fide purpose. It was submitted that the Respondent was not connected with any dispute in Delhi but was concerned only with disputes pending in the State of U.P. particularly the case relating to his transfer from Ghaziabad to Delhi (Case No.42 of 1978). Therefore, the Petitioner should have actually filed a petition under Section 33(1) of the Act but because the requirement of this sub-section is more strict and rigid, the Petitioner decided to file an approval application under the provisions of Section 33(2)(b) of the Act in Delhi. The submission of learned counsel for the Respondent was that this was with a view to harass the Respondent. According to him, the appropriate forum would have been the industrial adjudicator in the State of U.P. and the appropriate provision under which the Petitioner should have filed an application is Section 33(1) of the Act.
10. The issue of territorial jurisdiction in industrial law has come up for consideration in quite a few cases.
11. The three leading cases on the subject are Lalbhai Tricumlal Mills Ltd. vs. Dhonubhai Motilal Vin, , Workmen vs. Sri Ranga Vilas Motors (P) Ltd. and Paritosh Kumar Pal vs. State of Bihar, 1985 (50) FLR 213.
12. It was noted in Lalbhai that the Act does not deal with the causes of action, nor does it indicate what factors will confer jurisdiction upon a Labour Court. The High Court suggested the application of the well-known tests of jurisdiction, namely, residence of the parties and where the subject matter of dispute substantially arises. The High Court asked the question, where did the dispute substantially arise? In this case, it was held that the dispute arose in Bombay where the workman was employed and where his services were terminated. Consequently, it was held that the courts in Bombay had the territorial jurisdiction to entertain the dispute. However, the question of concurrent jurisdiction was left open.
13. Sri Ranga Vilas affirmed the view expressed in Lalbhai and laid down the principle that the situs of employment of the workman conferred territorial jurisdiction upon the court. In other words, the nexus should be between the dispute and the territory of the State and not necessarily between the industry concerning the dispute and the State.
14. Paritosh analyzed both the above decisions, as well as several other decisions on the subject, and laid down three principles for determining jurisdiction. These are:
(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 service 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.
15. The law laid down in these three decisions has been followed in several cases.
16. The situs of employment principle was applied by the Supreme Court in Hindustan Aeronautics Ltd. vs. The Workmen, in the context of industrial disharmony in West Bengal, while the head office of the management was in Bangalore. Apart from other things, the Supreme Court noted that the workers were receiving their pay packages in West Bengal and were under the control of officers stationed there. If there was any disturbance of industrial peace in West Bengal, the appropriate Government concerned with the maintenance of industrial peace was the Government of West Bengal and, therefore, there was no error in the dispute being referred to the industrial adjudicator in West Bengal. It was also held that the grievances of the workmen in West Bengal were their own and the cause of action in relation to the industrial dispute in question arose in West Bengal.
17. Similarly, the Bombay High Court in Glaxo Smithkline Pharmaceuticals Ltd. vs. Abhay Raj Jain, 2002 II CLR 1051 applied the situs of employment principle and noted that this was not the only criterion to be adopted. Though one industrial adjudicator may have jurisdiction to entertain an industrial dispute, this will not denude or deprive another industrial adjudicator from having its independent jurisdiction to entertain and decide that dispute. In this case, the workman was appointed in Mumbai; he was working in Udaipur and was transferred to Imphal. The transfer order was served upon him in Delhi. He raised an industrial dispute in Mumbai. While acknowledging that the situs of employment is of consequence, it was held that since the workman had been appointed at Mumbai, the industrial adjudicator in Mumbai would have territorial jurisdiction to entertain the reference. It was held that the cause of action may have arisen in Udaipur but it also arose in Mumbai from where the transfer order was issued.
18. The Andhra Pradesh High Court in Siemens Ltd. vs. Presiding Officer, 2003 I CLR 241 applied the situs of employment principle (though I think erroneously). In this case, the workman, employed in Hyderabad was transferred to Manipal, where he refused to join. He raised an industrial dispute relating to his transfer, which was referred to the Labour Court in Hyderabad. On a challenge being made, the Award of the Labour Court was set aside on the ground that it did not have territorial jurisdiction to entertain the dispute because the situs of employment was Manipal and not Hyderabad. It was said that merely because the workman stayed illegally at Hyderabad without proceeding to Manipal, it would not validate his illegal stay in Hyderabad and confer jurisdiction on the courts in Andhra Pradesh.
19. The test of situs of residence was accepted by the Madras High Court in Neslin Joseph Prim vs. Presiding Officer, 2002-III-LLJ 686. In this case, though the management had its head office in Delhi, the order of ''dehiring'' the workman was received by him at his residence in Chennai where the management did not even have a branch office. Nevertheless, the High Court held that the industrial adjudicator at Chennai had territorial jurisdiction to entertain the industrial dispute.
20. The test of situs of residence was considered by the Punjab and Haryana High Court in rather peculiar circumstances in HMT Ltd. vs. Chandigarh Administration, 2002 Lab. IC 702. In this case, the head office of the management was in Bangalore but the workman had last worked in Bombay. She had been requesting for her posting to Chandigarh, but since it was not favorably considered, she went on leave, which she got extended from time to time. Ultimately, her services were terminated by an order received by her in Chandigarh. The High Court found that the management did not have any office in Chandigarh and the workman did not work in Chandigarh even for a single day. On this basis, it was held that the industrial adjudicator in Chandigarh had no territorial jurisdiction to entertain the industrial dispute merely because the workman had received the order of dismissal in Chandigarh.
21. Applying the principles laid down in these various decisions, the questions that need to be asked are: what is the dispute between the parties; where did the dispute substantially arise; and, is there any nexus between the dispute and the territorial jurisdiction of the industrial adjudicator. After answering these questions, one has to keep at the back of the mind the accepted test of jurisdiction of a civil court including the residence of the parties.
22. The dispute between the parties in the present case is about the validity of an order terminating the services of the Respondent who was working in Delhi. The dispute substantially arose in Delhi where the Respondent was working and from where the order of termination was issued. This being the factual position, there is a territorial nexus between the dispute and the industrial adjudicator (the learned Tribunal) situated in Delhi. Consequently, it must be held that the learned Tribunal in Delhi has the territorial jurisdiction to entertain the O.P. in Delhi. Whether the Labour Court in U.P. concurrently had jurisdiction to entertain the dispute is another matter altogether, but it would certainly not be correct to say that the Labour Court in U.P. alone had the territorial jurisdiction to entertain the dispute between the parties.
23. The primary reason that pressed the learned Tribunal to hold that it had no territorial jurisdiction to entertain the O.P. was that the Respondent's transfer from Ghaziabad to Delhi was held to be illegal in the Award dated 30th April, 1985 passed by the Labour Court in Ghaziabad in industrial dispute Case No.42 of 1978. The learned Tribunal was of the view that this meant that the Respondent must be deemed to be working in Ghaziabad, and therefore, proceedings consequent on the Respondent's termination from service could be initiated only there and not in Delhi. I am of the view that this reason is faulty, because on the same logic, if the Award dated 30th April, 1985 is set aside in the writ petition pending in the Allahabad High Court, would it mean that territorial jurisdiction would then revert back to the learned Tribunal in Delhi? Surely, jurisdiction is not dependant upon imponderables, and nor can a decision rendered by a court create a cause of action or confer territorial jurisdiction particularly in a case such as the present. The Award dated 30th April, 1985 cannot take away jurisdiction vested in the learned Tribunal (if it has the jurisdiction), nor indeed can the decision of the Allahabad High Court in the writ petition challenging that Award confer jurisdiction on the learned Tribunal (if it did not already have jurisdiction). Simply stated, either the learned Tribunal in Delhi was initially vested with territorial jurisdiction or it was not so vested with territorial jurisdiction to entertain the O.P. The Award dated 30th April, 1985 cannot have anything to do with this vesting.
24. Learned counsel for the parties cited a few decisions with respect to the scope and amplitude of Section 33(1) and Section 33(2) of the Act. I do not think it necessary to dwell upon the decisions cited or to discuss the impact of the provisions of Section 33 of the Act. This is essentially a matter that will come within the jurisdiction of the learned Tribunal when it takes a decision on the O.P. filed by the Petitioner.
25. Similarly, it is not necessary for me to consider whether or not the Respondent was concerned with the pending industrial dispute in Delhi, that is, I.D. No.568 of 1983. Again, this is a matter which the learned Tribunal will have to decide when it considers the O.P. on its merits.
26. I wish to make it clear that the issues whether the O.P. is maintainable in its present form or is otherwise with merit or not are not before me, and so I refrain from commenting on them. These issues will have to be decided by the learned Tribunal.
27. In view of the above, the impugned order is set aside. The learned Tribunal is directed to decide O.P. No.22 of 1984 on merits. The parties will appear before the learned Tribunal on 11th October, 2004 for further proceedings.
28. Even though the Petitioner has succeeded in the writ petition, I think the Respondent should be awarded litigation expenses, being a retired person. Accordingly, the Petitioner will pay litigation expenses of Rs.5,000/- to the Respondent on or before 11th October, 2004