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Delhi District Court

Sh Tara Dutt Upadhyaya vs M/S Exl Service Com (India) Pvt. Ltd on 2 November, 2019

     IN THE COURT OF SH. VINAY SINGHAL, ADDL.
  DISTRICT & SESSIONS JUDGE, POLC­V: RACC : DELHI

NEW ID NO : 5289­16

In the matter of :
Sh Tara Dutt Upadhyaya
S/O Late Sh. Shiv Dutt Upadhyaya
R/O A­573/2, New Ashok Nagar,
New Delhi­110096.
                                                           ...Claimant
                                  Versus

M/s EXL Service Com (India) Pvt. Ltd.
Regd. Office 103, Ashoka Estate, Barakhamba Road,
New Delhi­110001.
                                               ....Management

Date of Institution                 :         15.03.2013
Date of pronouncement               :         02.11.2019


                               AWARD


       The Dy. Labour Commissioner, Govt of NCT, Delhi while
exercising his power u/s 10 (1) (c) and 12 (5) of the Industrial Dispute
Act (hereinafter refer to as the Act) r/w notification F.No.C­
69/LO/NDD/2012/35/163 dated 14.03.2013 and corrigendum No.C­
69/LO/NDD/2012/673 dated 06.05.2013 has sent the following
reference to this court for adjudication :­



ID No. 5289­16                                                           1/7
        "Whether Shri Tara Dutt Upadhyaya S/o Late Sh. Shiv Dutt
Upadhyaya is absenting from his duties unauthorisedly or his services
have been illegally and/or unjustifiably terminated by the management;
and if so, to what relief is he entitled and what directions are necessary
in this respect"?


                              PART­A
                       REFERENCE/CLAIM
   1.

After being called upon, the claimant filed statement of claim.

2. As per the claimant he was employed with the management since 26.06.2006 on the post of Customer Care Associate at a monthly salary of Rs. 16154/­.

3. It is claimed that the claimant proceeded on authorized leave on 28.03.2012 and reported for duty on 02.04.2012 but the management did not allow him to resume the duty and also did not make payment of salary for the month of March, 2012.

4. A demand letter dated 27.10.2012 claiming reinstatement and the allowances was sent by registered post but the same was neither replied nor acted upon.

5. The claimant thereafter approached the Labour Commissioner who summoned the management but the matter could not be settled therein and accordingly the above reference was made to this court.

6. The claimant also claimed that since the date of his termination, he is unemployed.

PART­B MANAGEMENT'S STAND/REPLY

7. The management challenged the territorial jurisdiction of Delhi courts to entertain the petition on the ground that the claimant was appointed at Noida and lastly worked at Noida and his services also stand terminated at Noida and accordingly, the concerned Labour Commissioner was having no authority to entertain the complaint and make a reference to this court in this respect.

8. The management has also contested the contentions of the claimant thereby submitting that the claimant proceeded on unauthorized leave from 28.03.2012 w.r.t. which show cause notices were issued to him and on account of failure on the part of claimant to respond to the same, his services stand terminated.

PART­C ISSUES

9. From the pleading of the parties the following issues were framed vide order dated 09.01.2015 : ­ ID No. 5289­16 3/7

a) Whether this court does not have the territorial jurisdiction to try and adjudicate upon the instant dispute, as alleged ? OPM

b) Whether the claimant is a workman as defined u/s 2(s) of the I.D Act, 1947 (as amended upto date) ? OPW

c) As per terms of reference.

d) Relief.

PART­D CLAIMANT'S EVIDENCE

10. In support of his claim claimant examined himself as WW1 and deposed along the lines of statement of claim and also proved on record the documents in support of his case.

11. The claimant was cross examined on various points and w.r.t. the suggestion put to him regarding he being appointed at Noida and not at Delhi, he denied the same but admitted that upon his appointment till his termination, he remained posted at Noida.

PART­E MANAGEMENT EVIDENCE

12. The management examined Sh. Supriya Sood, its official as MW1 who also deposed on the lines of the defence taken in the reply to the claim and also proved on record the documents in support of the case.

13. During the course of cross examination, he stated that though the registered office of the management is at Delhi but the management is functioning for all practical purposes from Noida only.

14. He has been cross examined on other aspects also which are not relevant at this stage.

PART­F FINDINGS/CONCLUSION

15. After considering the claim, reply, documents and the evidence led on record, the issue wise decision of the court is as under :­ ISSUE No.1 : Whether this court does not have the territorial jurisdiction to try and adjudicate upon the instant dispute, as alleged ? OPM

16. Onus to prove this issue was upon the management.

17. This issue has been framed only on account of the objection raised by the management to the effect that the claimant was appointed at Noida, worked at Noida and terminated at Noida and accordingly, the concerned authority at Delhi was having no territorial jurisdiction to entertain the complaint and made a reference and as a consequence Delhi courts also have got no territorial jurisdiction to entertain the petition on the basis of said reference.

18. As already discussed in Part D above, the claimant had admitted that throughout his service tenure with the management, he remained posted at Noida and also stand allegedly terminated when he reported for duty at Noida.

19. In view of the said admission, following judgments relied upon by the management i.e. (i) Braham Parkash Vs. Govt. of NCT of Delhi and Ors. in writ petition (C) No.6105/2007; (ii) M/s D.L.F. Universal Ltd. Vs. The Government of National Capital Territory, Delhi & Others cited as 2002 LLR 407; (iii) The M.P. State Road Transport Corporation Vs. The Industrial Court, M.P., Indore - M.P. No. 3605/1986, dated February 1, 1995); (iv) Sh. Harsaran Singh Vs. The Managing Director, M/s Modern Food Industries (India) Ltd. in WP(C) NO.710/2009 decided on 14.07.2009; and (v) M/s Hindustan Unilever Ltd. Vs. Union of India & Ors in WP(C) No.7050/2008 decided on 14.07.2009, which deals with this very kind of situation and thereby laying down the principle of law that in such a situation only the courts where the situs of employment was there, can have the jurisdiction to entertain such dispute, present issue is decided in favour of the management holding that the reference so made by the concerned authority of Dehi Govt. is bad for want of territorial jurisdiction and as a consequence Delhi courts also do ID No. 5289­16 6/7 not have any jurisdiction to entertain the petition based on said reference.

ISSUE No.2 : Whether the claimant is a workman as defined u/s 2(s) of the I.D Act, 1947 (as amended upto date) ? OPW ISSUE No.3 : As per terms of reference which is as under :

"Whether Shri Tara Dutt Upadhyaya S/o Late Sh. Shiv Dutt Upadhyaya is absenting from his duties unauthorisedly or his services have been illegally and/or unjustifiably terminated by the management; and if so, to what relief is he entitled and what directions are necessary in this respect"? ISSUE No.4 : RELIEF

20. In view of the outcome of issue no.1, this court having no territorial jurisdiction to entertain the petition itself, cannot decide the same.

21. Reference answered accordingly.

22. Let copy of the award be sent to the appropriate Govt for its publication as per rules.

File be consigned to record room.

Announced in the Open Court ( VINAY SINGHAL) nd On 2 November, 2019 ADDL. DISTRICT & SESSIONS JUDGE, PRESIDING OFFICER LABOUR COURT­V, RACC/DELHI ID No. 5289­16 VINAY 7/7 SINGHAL Digitally signed by VINAY SINGHAL Date: 2019.11.04 11:23:34 +0530