Raptakos Brett & Co. Ltd. v. Pawan Sharma

13) Section 5 of the MRTU & PULP Act deals with the duties of the Industrial Court. Under Clause-(d) of Section 5, it is the duty of the Industrial Court to decide complaints relating to unfair labour practices, except unfair labour practices falling under Item-1 of Schedule-IV. Section 5 of the MRTU & PULP Act provides thus:-

5. Duties of Industrial Court.— It shall be the duty of the Industrial Court— (a) to decide an application by a union for grant of recognition to it; (b) to decide an application by a union for grant of recognition to it in place of a union which has already been recognised under this Act;

(c) to decide an application from another union or an employer for withdrawal or cancellation of the recognition of a union;

(d) to decide complaints relating to unfair labour practices except unfair labour practices falling in item 1 of Schedule IV; (e) to assign work, and to give directions, to the Investigating Officers in matters of verification of membership of unions, and investigation of complaints relating to unfair labour practices; (f) to decide references made to it on any point of law either by any civil or criminal court; and (g) to decide appeals under section 42.

14) Section 6 of the MRTU & PULP Act provides for constitution of the Labour Courts by the State Government and Section 7 imposes a duty on the Labour Courts to decide complaints relating to unfair labour practices described in Item-1 of Schedule-IV and to try offences punishable under the Act. The State Government has constituted Industrial Courts in various parts of the State by issuing Notifications under Section 4 of the MRTU & PULP Act from time to time. By Notification dated 6 February 2004, the Districts in respect of which a particular Industrial Court can exercise jurisdiction has been indicated. Thus, the Industrial Court at Mumbai has the territorial jurisdiction in respect of Mumbai District.

15) In the present case, the Respondent is aggrieved by transfer order dated 21 November 2019 issued by the Senior Vice President (Personnel & MATLS) at Petitioner’s Corporate Office at Nariman Point in Mumbai transferring the Respondent from Sriganganagar (Rajasthan) to Shahjahanpur (UP). The transfer order dated 21 November 2019 reads thus:- November 21, 2019 Mr. Pawan Sharma Territory Manager Emp. Code No.15041 638 Vinobha Basti, Sriganganagar, Rajasthan 335 001. Sub: Transfer Presently you are working in Sriganganagar Head Quarter. Due to the degrowth of Head Quarter, the said H.Q. has become unviable. The management has therefore decided to close the said Head Quarter for business reasons. In view of the same, it has been decided to utilize your services in Shahjahanpur (Uttar Pradesh), accordingly you are transferred with immediate effect to Shahjahanpur (Uttar Pradesh) from Sriganganagar (Rajasthan). The transfer is on account of your employment and conditions of service as contained in your letter of appointment. You should report to Mr Ashwini Kumar Sharma, Sr Zonal Business Manager at Shahjahanpur (Uttar Pradesh) by 03.12.2019 @10.00AM On transfer to Shahjahanpur, there shall be no change in your salary, grade, continuity of service and other conditions of service. You shall retain the seniority as at present. You shall be eligible for 3 Tier A.C train fare for yourself and your family and actual expenses to shift your household belongings from Sriganganagar to Shahjahanpur. Shifting expenses shall be reimbursed if prior approval of Vice President (Sales) is obtained. You may contact Vice President (Sales) at Mumbai for a reasonable advance to meet the travel expenses and the transport charges, if you so requires. SR.VICE PRESIDENT (PERSONNEL & MATLS)

16) Respondent has instituted Complaint (ULP) No. 374/2019 challenging transfer order dated 21 November 2019 in Industrial Court at Mumbai. The Industrial Court has rejected the objection of jurisdiction raised by Petitioner vide impugned order dated 4 May 2022.

17) According to the Petitioner, the situs of employment of Respondent is at Sriganganagar and that therefore the Complaint of unfair labour practice could not have been filed by Respondent under Section 28 of the MRTU & PULP Act before the Industrial Court at Mumbai. Alternatively, it is contended by the Petitioner that the Courts at Shahjahanpur (Uttar Pradesh) can also have jurisdiction to decide Respondent’s grievance about transfer. If Petitioner’s contention is accepted, Respondent would not be able to invoke provisions of MRTU & PULP Act since the Act applies only in the State of Maharashtra. The Respondent will then have to invoke the jurisdiction applicable under labour/industrial legislations in either State of Rajasthan or State of Uttar Pradesh.

18) The Respondent, at the time of issuance of impugned transfer order dated 21 November 2019, was posted at Sriganganagar (Rajasthan). There is no dispute to the position that he was never posted in any part of Maharashtra throughout his service tenure. However, in the appointment order issued to the Respondent on 21 August 1990, there is a specific stipulation that all disputes arising between the Respondent and the Company shall be adjudicated solely in the Courts at Mumbai. Clause-(ix) of the Appointment Order reads thus:ix) Any dispute arising between you and the Company shall be adjudicated solely in the legal courts of Bombay, State of Maharashtra.

19) Though Petitioner itself has provided for resolution of disputes between the employer and employee exclusively in the Courts at Mumbai, Petitioner has still chosen to raise objection of jurisdiction of Industrial Court at Mumbai. The objection is premised on the contention that the situs of employment of the Respondent is at Sriganganagar and that therefore complaint of unfair labour practice cannot be filed in the Industrial Court at Mumbai, even though covenant in the appointment order, may seek to confer exclusive jurisdiction on Courts at Mumbai alone. It is contended that the stipulation can be enforced only when multiple Courts have jurisdiction regarding cause of action and where the appointment order seeks to restrict jurisdiction only on one out of such multiple Courts.

20) In support of his contention that situs of employment is the determinative factor for jurisdiction, strenuous reliance is placed by the Petitioner on judgment of Division Bench of this Court in Glaxo Smith Kline Pharmaceuticals Ltd. (supra) in which the question taken up for determination has been captured in para-6 as under:-

6. The point which arise for determination in the case in hand is that:

M.R.T.U. & P.U.L.P. Act have jurisdiction to entertain a complaint solely on the ground that an order allegedly having effect of unfair labour practice is issued from a place situated within the territory of the State of Maharashtra even though the effects and/or consequences of such an order are to take place outside the territory of the State of Maharashtra and the person against whom such an order is issued for all purpose is employed in an area situated outside the State of Maharashtra?

21) The Division Bench, in Glaxo Smith Kline Pharmaceuticals Ltd., proceeded to answer the question by holding in paras-30 and 31 as under:-

30. It is thus clear that it is the situs the employment which would be the relevant factor to decide the place of cause of action for initiating any legal proceedings. Once is not in dispute that the respondent, at the relevant time, was employed at Udaipur 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 Imphal, both the places beyond the of the State of Maharashtra.

31. 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 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.

22) Thus, in Glaxo Smith Kline Pharmaceuticals Ltd., the Division Bench of this Court has held that the situs of employment would be the relevant factor to decide the place or cause of action for initiating any legal proceedings. The Division Bench has held that since Respondent No.2 therein was employed at Udaipur and was sought to be transferred from Udaipur to Imphal (Manipur), the situs of his employment was sought to be changed from Udaipur to Imphal and that both places were beyond the jurisdiction of Industrial Court in Maharashtra. It has further held that in case involving unfair labour practices under the provisions of MRTU & PULP Act on account of transfer of employees from one place to another, actual adoption of unfair labour practice would be at a place from which the employee is sought to be transferred or at the place where the employee is transferred. It has further held that the place at which the order of transfer is issued cannot be a situs of employment. It has further held that the issuance of transfer order does not result in unfair labour practice but the consequence of such order results in unfair labour practice. That the consequence would either arise at a place where the employee has been working or at a place where he is sought to be transferred. Thus the ratio of the judgment of Division Bench in Glaxo Smith Kline Pharmaceuticals Ltd. (supra) appears to be that a complaint of unfair labour practice cannot be filed in territorial jurisdiction of Court where transfer order is issued and the same can be filed only at a place from the which the employee is sought to be transferred or the place at which he is transferred.

23) Reliance is also placed by the Petitioner on judgment of Single Judge of this Court in Torrent Pharmaceuticals Ltd., Ahmedabad (supra) in which this Court has held in para-10 as under:-

10. The judgments above leave no manner of doubt that it is the place of occurrence of unfair labour practice which is important to find out the territorial jurisdiction. The place at which such decision is taken is not wholly relevant if that decision is meant to operate at some other place. It is the actual implementation of that decision at the place where it is intended to have impact which may result into an unfair labour practice. In the facts before me the transfer order dated 10-5- 2004 though issued from Ahmadabad in Gujrath State is to operate and has in fact operated at Chandrapur in Maharashtra. The departmental inquiry conducted at Ahmadabad is for disobedience to that transfer order which shifts present respondent No 2 from Chandrapur to Ahmadabad. In U.L.P. Complaint as filed, respondent No 2 has not challenged transfer order at all and he has only challenged the conduct of departmental inquiry against him by petitioner in particular manner and on some grounds. His grievance is he did not get necessary or proper opportunity to defend himself. The inquiry and alleged lacunae therein are at Ahmadabad but then inquiry is for misconduct which has taken place at Chandrapur. Though there is some dispute between petitioner and respondent No 2 about filing of rejoinder by respondent No 2 along with copy of earlier transfer order before Industrial Court, it is not in dispute that earlier transfer order of respondent No 2 from Akola to Chandrapur was issued from Mumbai. Whether it was issued by Manager (HRD) of petitioner then stationed at Mumbai upon authorisation of head office at Ahmadabad or otherwise is not very material for present purposes. The petitioner itself has in its petition before this Court stated that it has also a centre at Mumbai for coordinating the general marketing and for sending and receiving of general information/documents, material etc. and its such centres are headed by Managers. It cannot therefore be said that petitioner does not have any establishment in State of Maharashtra. The relationship of employer and workman between parties is not in dispute and it is not the defence that petitioner is not an “industry”. Thus work of respondent No 2 at Chandrapur forms integral part of systematic activity of petitioner. Petitioners carry out its industrial operations through petitioner at Chandrapur and none of the judgments cited supra hold that formal existence of establishment of employer in such area is essential. Operations or activity of Industry in Chandrapur is not being denied here. Petitioner, while raising objection to territorial jurisdiction of Chandrapur Industrial Court, has not contended that provisions of Act No I of 1972 are not applicable in the matter at all. Burden was upon petitioner to show why Industrial Court at Chandrapur has no jurisdiction and for that purpose, it also should have placed on record the details of its other sales representatives and manner of their functioning in State of Maharashtra. It is difficult to comprehend how centre of petitioner at Mumbai co-ordinates its marketing or gathers information or forwards/receives material without help of feedback, either direct or indirect, from respondent No 2 and his other colleagues spread over in Maharashtra. In present situation, misconduct is at Chandrapur, service of charge-sheet upon respondent No 2 is at Chandrapur and consequences of punishment, if any, shall also be suffered by him at Chandrapur. In view of the judgments, it is apparent that dispute about misconduct has substantially arisen at Chandrapur. It cannot be said that it arose only at Ahmadabad. The situs of respondent No 2's employment is in State of Maharashtra at Chandrapur and his service conditions are subject to provisions of Act No I of 1972. In view of this position emerging on record, objection of petitioner to the cognizance of U.L.P. Complaint by Chandrapur Industrial Court is misconceived and without any merit.

24) Thus, in Torrent Pharmaceuticals Ltd., Ahmedabad as well, Single Judge of this Court, after following the ratio of Division Bench judgment in Glaxo Smith Kline Pharmaceuticals Ltd. (supra) has held that the place at which the decision is taken is not wholly irrelevant if the decision is meant to operate at some other place. It has further held that the actual implementation of the decision at the place where it is intended to impact results into an unfair labour practice. This Court further proceeded to hold that formal existence of establishment of employment at a place where effect of impugned action is felt is not essential.

25) Reliance is also placed by Petitioner on judgment of Single Judge of this Court in Anil Murlidharan (supra) in which the clause in the employment order provided for exclusive jurisdiction for resolution of disputes on Courts at Mumbai. The Petitioner therein was posted at Vapi and he was thereafter transferred at Silchar. Services of the Petitioner came to be terminated while he was posted at Silchar. The termination order was challenged by him by filing complaint of unfair labour practice before the Labour Court at Mumbai. The issue before this Court was whether the Labour Court at Mumbai would have jurisdiction to decide complaint of unfair labour practice challenging termination order terminating services of the Petitioner at Silchar would be maintainable. It appears that the order of appointment of the Petitioner therein, order of his transfer, as well as order of his termination was issued from the Headquarters of the Company at Mumbai which is clear from the following observations in para-12 of the judgment:-

12. Heard learned counsel for the parties at some length. There is no dispute that the offer of employment was 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 21-9-2005 is issued from the head office of the Mumbai. The termination order refers to the contract of employment dated 26-7-2005 the conditions which forms the basis of termination of services of the petitioner.

26) The question for consideration has been formulated in para-18 of the judgment in Anil Murlidharan as under:-

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.

27) This Court in Anil Murlidharan proceeded to answer the issue after taking into consideration the judgment of Division Bench in Glaxo Smith Kline Pharmaceuticals Ltd. (supra) as well as of the Apex Court in Nandram (supra) and held in paras-31 and 34 as under:-

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 Labour Court at Mumbai to try and entertain complaint of unfair labour practices filed by the petitioner at Mumbai.

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 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.

28) By relying on the judgments of this Court in Glaxo Smith Kline Pharmaceuticals Ltd., Torrent Pharmaceuticals Ltd. and Anil Murlidharan, it is contended on behalf of the Petitioner that the issue of jurisdiction is squarely covered and that mere place of issuance of order of transfer is an irrelevant factor for deciding the issue of jurisdiction.

29) On the other end of the spectrum are three judgments of the Apex Court which do not support the case of the Petitioner. It would therefore be necessary to consider the ratio of those three judgments of the Apex Court.

30) In Nandram (supra), the Appellant therein was employed at Aurangabad and was transferred to Silvassa. He was further transferred to Pondicherry. While being at Pondicherry, his services were terminated on account of closure of establishment at Pondicherry. The registered office of the employer was at Aurangabad and the decision to close office at Pondicherry and decision of termination of the employee therein was also taken at Aurangabad. The Appellant therein challenged termination order by filing complaint of unfair labour practice before the Labour Court at Aurangabad. The employer raised the issue of jurisdiction and this is how the case travelled upto the Apex Court. The Apex Court held that 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. The Apex Court therefore held that it could not be said that there was no cause of action at all in Aurangabad. Since the decision to terminate was taken at Aurangabad, it was held that part of cause of action had arisen at Aurangabad. The Apex Court held in para-4 as under:-

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 the 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 the 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.

31) Thus, the judgment of the Apex Court in Nandram undoubtedly holds that the place at which the decision to terminate is taken is also relevant for the purpose of deciding the issue of jurisdiction. It is held that part of cause of action for challenging termination order arises at a place where the decision to terminate services of workman is taken. No doubt, the judgment in Nandram has been considered by the learned Single Judge in Anil Murlidharan but the Court was persuaded to distinguish the same in the light of facts of that case.

32) In Bikash Bhushan Ghosh (supra) the Appellants therein were workmen of the Respondent-Company and were transferred to Siwan (Bihar), Farukhabad (UP) and Karimganj (Assam). On account of their failure to join services at transferred place, they were terminated. The State of Bengal made reference for adjudication of dispute by Industrial Tribunal, West Bengal relating to termination of the workmen. The employer raised the objection of jurisdiction which was repelled by the Industrial Court. The Apex Court held that the orders of termination were served on the Appellants at Calcutta and that therefore part of cause of action had arisen in Calcutta. The Apex Court referred to its judgment in Workmen Versus. Shri. Rangavilas Motors (P.) Ltd.[9] and held that legality of orders of transfer had direct nexus with the order of termination. The Apex Court recognised the principle that in a given case, two States can have requisite jurisdiction in terms of Section 10(1)(c) of the Industrial Disputes Act, 1947 and that merely because another State Government has jurisdiction to make an order of reference, it would not mean that the State in which part of cause of action has arisen would not have jurisdiction to make the reference. The Apex Court held in para-11, 12, 15 and 16 of the judgment as under:- AIR 1967 SC 1040

11. It is, however, not disputed that the orders of termination were served upon the appellants at Calcutta. The orders of termination as against them were passed for not obeying the orders of transfer. The transfer of the appellants, therefore, had some nexus with the order of their termination from services. It is, therefore, not correct to contend that the State of West Bengal was not the appropriate Government.

12. In Shri Rangavilas Motors (P) Ltd. [AIR 1967 SC 1040: (1967) 2 SCR 528] the workman concerned was engaged as a foreman. He was transferred from Bangalore to Krishnagiri. He questioned the validity of the said order of transfer. The company initiated disciplinary proceeding against him and he was removed from services. State of Mysore made a reference. The validity of the said reference was questioned. This Court opined: (AIR p. 1043, para

14) “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.” Referring to a decision of this Court in Indian Cable Co. Ltd. v. Workmen [1962 Supp (3) SCR 589] it was held that the subject-matter of the dispute substantially arose within the jurisdiction of the Mysore Government.

15. With respect to the Division Bench, we do not think that it has posed unto itself a correct question of law. It is not in dispute that the appellants did not join their duties at the transferred places. According to them, as the orders of transfer were illegal, their services were terminated for not complying therewith. The assertion of the respondent that the appellants were relieved from job was unilateral. If the orders of transfer were to be set aside, they would be deemed to be continuing to be posted in Calcutta. The legality of the orders of transfer, thus, had a direct nexus with the orders of termination. What would constitute cause of action, has recently been considered by this Court in Om Prakash Srivastava v. Union of India [(2006) 6 SCC 207: (2006) 3 SCC (Cri) 24] wherein it was held: (SCC pp. 211-12, paras 12-14) “12. The expression ‘cause of action’ has acquired a judicially settled meaning. In the restricted sense ‘cause of action’ means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above, the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove each fact, comprises in ‘cause of action’. (See Rajasthan High Court Advocates' Assn. v. Union of India [(2001) 2 SCC 294].)

13. The expression ‘cause of action’ has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts, which a plaintiff must prove in order to succeed. These are all those essential facts without the proof of which the plaintiff must fail in his suit. (See Gurdit Singh v. Munsha Singh [(1977) 1 SCC 791].)

14. The expression ‘cause of action’ is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases of suing; a factual situation that entitles one person to obtain a remedy in court from another person (see Black's Law Dictionary). In Stroud's Judicial Dictionary a ‘cause of action’ is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed, the plaintiff must prove in order to obtain judgment. In Words and Phrases (4th Edn.) the meaning attributed to the phrase ‘cause of action’ in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf. (See Navinchandra N. Majithia v. State of Maharashtra [(2000) 7 SCC 640: 2001 SCC (Cri) 215].)”

16. Judged in that context also, a part of cause of action arose in Calcutta in respect whereof the State of West Bengal was the appropriate Government. It may be that in a given case, two States may have the requisite jurisdiction in terms of clause (c) of sub-section (1) of Section 10 of the Industrial Disputes Act. Assuming that other State Governments had also jurisdiction, it would not mean that although a part of cause of action arose within the territory of the State of West Bengal, it would have no jurisdiction to make the reference.

33) Thus, what the judgment of the Apex Court in Bikash Bhushan Ghosh highlights is the position that in a given case involving industrial adjudication, it is permissible that two courts located in different States can have concurrent jurisdiction if part of cause of action arises in multiple states.

34) In Shri. Rangavilas Motors (P.) Ltd. (supra) the workman was engaged as foreman and was transferred from Bangalore to Krishnagiri (Tamil Nadu). He questioned the validity of the order of his transfer. He was removed from service. The State of Mysore made a reference, and the validity of reference order was questioned on the ground of jurisdiction contending that since the workman was removed at Krishnagiri (Tamil Nadu), State of Mysore could not make an order of reference. The Apex Court held in para-14 of the judgment as under:-

14. 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. (emphasis added)

35) Thus, in Shri. Rangavilas Motors (P.) Ltd. the employer therein contended exactly contrary to what the Petitioner contends in the present petition. In case before the Apex Court, the employer contended that though the dispute had started at Bangalore, the resolution sponsoring the dispute was passed in Krishnagiri (Tamil Nadu) and that therefore the State Government of Mysore did not have territorial jurisdiction to make an order of reference. The Apex Court held that though the order of transfer was made at Krishnagiri Headquarters (Tamil Nadu) but the order was to operate on the workmen working in Bangalore. The Apex Court held that if there is a separate establishment and the workmen are working in that establishment, the dispute would arise at that place. The Apex Court held that there needs to be nexus between the dispute and the territory of the State and not necessarily between the territory of State and the industry concerned in which the dispute arose. The Apex Court thus held that the subject matter of dispute substantially arose in the jurisdiction of Mysore Government. Thus, the ratio of the judgment of the Apex Court in Shri. Rangavilas Motors (P.) Ltd. is that the situs of employment becomes a relevant factor only if there is a separate establishment of the employer at that place. This ratio of the judgment of the Apex Court in Shri. Rangavilas Motors (P.) Ltd. was apparently not taken into consideration by the learned Single Judge of this Court in Torrent Pharmaceuticals Ltd. while making an observation that formal existence of employment of employer is not essential for deciding the issue of jurisdiction.

36) The third most important judgment is the recent one in Rakesh Kumar Verma (supra). In case before the Apex Court, the employees were posted in HDFC Bank’s offices at Patna and Delhi. The orders of their appointment contained a clause for exclusive jurisdiction of Courts in Mumbai. Accordingly, the terminated employees filed Suits in Courts at Patna and Delhi and employer-HDFC raised objection of territorial jurisdiction relying on the stipulation in the appointment orders providing for exclusive jurisdiction on Courts in Mumbai. The Apex Court held in paras-18, 28, 29, 30 and 31 as under:-

18. A bare perusal of the above decisions leads to the conclusion that for an exclusive jurisdiction clause to be valid, it should be (a) in consonance with Section 28 of the Contract Act, i.e., it should not absolutely restrict any party from initiating legal proceedings pertaining to the contract, (b) the Court that has been given exclusive jurisdiction must be competent to have such jurisdiction in the first place, i.e., a Court not having jurisdiction as per the statutory regime cannot be bestowed jurisdiction by means of a contract and, finally,

(c) the parties must either impliedly or explicitly confer jurisdiction on a specific set of courts. These three limbs/criteria have to be mandatorily fulfilled.

28. Upon a perusal of the service contract and the exclusive jurisdiction clause under consideration in the instant appeals, we are convinced that the Patna High Court has offered a sound legal opinion with reference to the facts at hand while the Delhi High Court has erred in dismissing the civil revisional application placing entire reliance on the decision in Vishal Gupta (supra). All the three applicable mandatory criteria to hold that the clause is valid have been fulfilled in the instant appeals. We propose to assign brief reasons for each of the applicable limbs.

29. First, Section 28 of the Contract Act does not bar exclusive jurisdiction clauses. What has been barred is the absolute restriction of any party from approaching a legal forum. The right to legal adjudication cannot be taken away from any party through contract but can be relegated to a set of Courts for the ease of the parties. In the present dispute, the clause does not take away the right of the employee to pursue a legal claim but only restricts the employee to pursue those claims before the courts in Mumbai alone.

30. Secondly, the Court must already have jurisdiction to entertain such a legal claim. This limb pertains to the fact that a contract cannot confer jurisdiction on a court that did not have such a jurisdiction in the first place. The explanation to Section 20 of the CPC is essential to decide this issue. In the instant case, considering that the decision to employ Rakesh and Deepti were taken in Mumbai, the appointment letter in favour of Rakesh was issued from Mumbai, the employment agreement was dispatched from Mumbai, the decision to terminate the services of Rakesh and Deepti were taken in Mumbai and the letters of termination were dispatched from Mumbai, we are convinced that the courts in Mumbai do have jurisdiction.

31. Lastly, the clause in the contract has clearly and explicitly barred the jurisdiction of all other courts by using the word “exclusive”. A profitable reference may be made to the extract of ABC Laminart (supra) reproduced above.

37) The issue before the Supreme Court in Rakesh Kumar Verma no doubt was a bit different. The Supreme Court has dealt with and has decided the issue of enforceability of jurisdiction clause in appointment order when court at another place also has jurisdiction. The ratio of the judgment is that if the court, of which exclusive jurisdiction is contractually agreed, has the jurisdiction to decide the dispute, such contractual clause can be enforced for exclusion of jurisdiction of courts at other places. In other words, if cause of action has arisen at multiple places, including the place where exclusive jurisdiction is contractually agreed upon, the dispute must be decided only by the court at a place contractually agreed upon. However while deciding the above issue, the Supreme Court has examined whether the Courts at Mumbai (contractually agreed place) had the jurisdiction in the light of the fact that the employees were posted in Patna and Delhi and were terminated from those places. The Supreme Court found that the decision to employ them was taken in Mumbai, their appointment letters were issued from Mumbai, the employment agreement was dispatched from Mumbai, the decision to terminate their services was taken in Mumbai and the letters of termination were dispatched from Mumbai. By applying the above factors, the Supreme Court held that the Courts at Mumbai also had jurisdiction to decide the employment related disputes of the concerned employees though they were posted at and terminated at Patna and Delhi. The place at which the decision to terminate is taken and from which the termination order got dispatched is thus considered by the Supreme Court as relevant factor for deciding the issue of jurisdiction.

38) The facts in the case of Rakesh Kumar Verma appear to be similar to the facts of the present case. In the present case also, decision to appoint Respondent is taken at Mumbai, appointment order was dispatched from Mumbai, decision of transferring him is taken at Mumbai and the order of transfer is dispatched from Mumbai. There is jurisdiction clause inserted by the Petitioner in the appointment order for exclusive jurisdiction of Courts at Mumbai. Therefore, not only the Court in Mumbai would have jurisdiction but the clause in the employment order may in fact confer exclusive jurisdiction on Courts at Mumbai. However, it is not necessary to go into the issue of exclusivity of jurisdiction in view of clause in the appointment order so as to exclude the jurisdiction of courts at Sriganganagar or Shahjahanpur, as this is not the issue before me. The issue is left open to be decided in an appropriate case.

39) Thus, there appears to be three judgments of the Apex Court in which a view is taken that the place at which order of termination/transfer is issued also becomes relevant for determining the issue of jurisdiction. The judgments recognise the principle of conferring jurisdiction on Court where part of cause of action arises. I am not impressed by submissions canvassed by Mr. Sawant that the concept of accrual of cause of action for deciding jurisdiction of Court under Section 20 of the Code cannot be made applicable for industrial adjudication. The Apex Court judgment in Nandram is in respect of industrial adjudication where Labour Court’s jurisdiction to entertain complaint of unfair labour practice at a place where termination order was issued has been upheld by the Apex Court. The further hairsplitting contention of Mr. Sawant is that the issue of jurisdiction needs to be decided separately in regard to reference made under the Industrial Disputes Act and with regard to the complaint of unfair labour practice under the MRTU & PULP Act deserves rejection as the judgment of the Apex Court in Nandram (supra) has dealt with the jurisdiction of Labour Court to decide the Complaint of unfair labour practice under MRTU & PULP Act.

40) Reliance by Mr. Sawant on Constitution Bench judgment of the Apex Court in State of Punjab Versus. Amar Singh Harika (supra) does not assist the case of the Petitioner. The judgment lays down the ratio that an order of dismissal passed by the Appropriate Authority and kept into the file without communication to the concerned employee, does not take effect. The ratio of judgment cannot be applied in the context of jurisdiction for the purpose of holding that since the order of transfer takes effect only on service thereof, the place at which it is served becomes the sole determinative factor for jurisdiction. The judgment of the Constitution Bench in State of Punjab Versus. Amar Singh Harika does not deal with the issue of jurisdiction and therefore the ratio of the said judgment is not useful for deciding the controversy at hand.

41) Reliance by Mr. Sawant on judgment of this Court in M/s. Abbott India Ltd. (supra) is irrelevant for deciding the issue at hand. In M/s. Abbott India Ltd. the employee was impleaded as Territory Business Developer at Raebareli in Uttar Pradesh. He never worked in any part in the State of Maharashtra. The employer implemented Performance Enhancement Programme (PEP) by which the employee was aggrieved and filed complaint of unfair labour practice before the Industrial Court, Mumbai through the Union. In that case, the impugned directive was issued by employee’s supervisor from Lucknow. Thus, the impugned directive was not issued by any Company’s Head Office at Mumbai. The issue before this Court was whether the Union could espouse individual cause of an employee and jurisdiction of Industrial Court at Mumbai has been upheld by this Court in respect of collective grievance in respect of large number of employees serving at various places in the country. The judgment in M/s. Abbott India Ltd., rendered in the facts of that case, would have no application for deciding the controversy at hand.

42) Another judgment dealing with the issue of territorial jurisdiction of an industrial adjudicator is V.G. Jagdishan Versus. Indofos. The issue before the Apex Court was with regard to the territorial jurisdiction of the Labour Court to decide reference relating to termination of the workman, who was working as Driver at Ghaziabad but proceeded to raise reference at Delhi merely because he had shifted to Delhi after termination and since head office of the Respondent was located at Delhi. Referring to the judgments in Bikash Bhushan Ghosh and Nandram (supra) the Apex Court held that the Labour Court at Delhi did not have jurisdiction to decide the issue of termination of the workman. In the first blush the judgment may seem to assist the case of Petitioner as the claim of jurisdiction on the basis of head office of the employer seems to have been rejected, however on a deeper scrutiny, it doesn’t. The case before the Apex Court has a substantial distinguishing factor where the order of retrenchment was not issued from head office at Delhi. The retrenchment occurred at Ghaziabad. The jurisdiction of the Labour Court at Delhi was sought to be invoked on three factors of (i) workman shifting at Delhi after retrenchment, (ii) location of head office of the employer at Delhi and (iii) service of demand notice by the retrenched workman at

6.1. From the findings recorded by the Labour Court, Delhi and the learned Single Judge and the Division Bench of the High Court, it is not much in dispute that the workman was employed as a driver at Ghaziabad office. He was working at the Ghaziabad. His services were retrenched at Ghaziabad. All throughout during the employment, the workman stayed and worked at Ghaziabad. Only after the retrenchment/termination the workman shifted to Delhi from where he served a demand notice at Head Office of the Management situated at Delhi. Merely because the workman after termination/retrenchment shifted to Delhi and sent a demand notice from Delhi and the Head Office of the Management was at Delhi, it cannot be said that a part cause of action has arisen at Delhi. Considering the facts that the workman was employed at Ghaziabad; was working at Ghaziabad and his services were terminated at Ghaziabad, the facts being undisputed, only the Ghaziabad Court would have territorial jurisdiction to decide the case. As such the issue involved in the present case is no longer res integra in view of the decision of this Court in the case of Eastern Coalfields Ltd. and Ors. v. Kalyan Banerjee MANU/SC/7283/2008: (2008) 3 SCC 456. In the case of Eastern Coalfields Ltd. (supra) the workman was employed in Mugma area in the district of Dhanbad, Jharkhand. His services were terminated at Mugma. However, the workman filed a writ petition before the Calcutta High Court. On a preliminary objection taken the Calcutta High Court held that since the workman was serving at Mugma area under the General Manager of the area which is the State of Jharkhand, the Calcutta High Court had no jurisdiction. Affirming the aforesaid decision, this Court held that the entire cause of action arose in Mugma area within the State of Jharkhand and only because the head office of the company was situated in the State of West Bengal, the same by itself will not confer any jurisdiction upon the Calcutta High Court particularly when the head office had nothing to do with the order of punishment passed against the workman. In the present case also, the workman was employed at Ghaziabad; he was working at Ghaziabad and his services were also terminated at Ghaziabad by the office at Ghaziabad where he was employed.

6.2. Now, so far as the reliance placed upon the decision of this Court in the case of Singareni Collieries Co. Ltd. (supra) is concerned, apart from the fact that the same is not applicable to the facts of the case on hand, it is required to be noted that the order passed by this Court in the said case was a consent order and the order was passed in exercise of power Under Article 142 of the Constitution of India and the question of law was left open. Therefore, no reliance can have been placed on the said decision.

6.3. Now, as far as the decision of this Court in the case of Bikash Bhushan Ghosh (supra) is concerned, on facts, the said decision also is not applicable to the facts of the case on hand. That was a case where it was specifically found that the part cause of action had arisen at both places. In the present case as observed, it cannot be said that any part cause of action has arisen at Delhi.

6.4. Reliance placed upon the decision of this Court in the case of Nandram (supra) is also of no assistance to the Appellant. Again, on facts, the said decision is not applicable to the facts of the case on hand. That was also a case where it was found that part cause of action had arisen in both the places, namely, Pondicherry and Aurangabad. Therefore, it was found on facts that both, the Labour Courts at Pondicherry and Aurangabad had the jurisdiction to deal with the matter and therefore, the Labour Court at Aurangabad was well within its jurisdiction to consider the complaint. In my view, the ratio of the judgment in V.G. Jagdishan (supra) is inapplicable to the facts of the present case where decision to transfer Respondent-workman was taken at Petitioner’s Corporate office at Mumbai and order of transfer was dispatched from Mumbai. There is an additional distinguishing factor, where the contract of employment contains exclusive jurisdiction clause conferring jurisdiction solely on Courts at Mumbai.

43) The conspectus of the above discussion is that the Industrial Court at Mumbai has jurisdiction to decide Respondent’s complaint of unfair labour practice. The challenge to jurisdiction has rightly been repelled by the Industrial Court vide impugned order, which appears, to my mind, to be unexceptionable.

44) Before parting, two aspects may bear mention. Petitioner itself has itself incorporated a clause in the appointment order that only Courts at Mumbai will have jurisdiction to decide service-related disputes of Respondent. It has now taken a volte face and has contended that Industrial Court at Mumbai does not have territorial jurisdiction to decide Respondent’s complaint of unfair labour practice. This Court does not appreciate Petitioner’s conduct in doing so. The challenge is essentially aimed at driving the Respondent to another round of lengthy litigation either at Sriganganagar or at Shahjahanpur. Respondent’s Complaint is pending since the year 2019, which is not being decided due to filing and pendency of the present belated Petition at Petitioner’s instance. The Petitioner’s objection of jurisdiction was rejected by the Industrial Court on 4 May 2022, whereas the present petition is filed on 11 August 2023. Though the Petition suffers from delay and laches, this Court has decided the same on merits rather than rejecting it on technicalities, so imposition of costs on Petitioner is warranted.

45) Considering the overall conspectus of the case, I am of the view that no interference is warranted in the impugned order passed by the Industrial Court. The Writ Petition is devoid of merits. It is accordingly dismissed with costs of Rs. 25,000/- to be paid to the Respondent within four weeks. Considering the fact that the complaint is pending since the year 2019, it shall be decided in an expeditious manner, on its own merits, without being influenced by any of the observations made in the present judgment.

46) After the judgment is pronounced, Mr. Sawant, the learned Senior Advocate appearing for the Petitioner prays for stay of the judgment and order for a period of eight weeks. However, considering the position that hearing of the complaint is stayed on the admission of the present petition for the last six long years, I am not inclined to entertain the request for stay. The request is accordingly rejected. [SANDEEP V. MARNE, J.]