9911796707
TMI Blog2006 (4) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing stipulations: 5. You will be posted in NEW DELHI but your job is transferable anywhere in India. 6. You may be transferred to any of our group companies on the same terms and conditions. 8. Terms Conditions-As per Annexure B 3. Annexure B to the letter set out in detail the duties and responsibilities and other terms and conditions which the respondent No. 3 was required to accept and include inter alias the following: b) The Management may transfer you for work in any section/department/project site/division/office/ sister concern, any where in India. Whether existed or started later on as it may consider necessary at its discretion from time to time without detriment to your status and emoluments. 4. The respondent No. 3 accepted these terms and conditions and accepted the terms of the letter of appointment and the terms and the conditions thereof and submitted her acceptance on 24th December, 1992 in the following terms: ACCEPTANCE: I have read and understood the above terms and condition of employment and hereby signify my acceptance of the same. There is no dispute that the petitioner was posted at Delhi and that her terms of appointment st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e me at Delhi Office, I would request you that a suitable compensation may please be paid to me so that I can meet the expenses of studies etc., of my children. 7. The petitioners rejected the respondent's request vide letter dated 27th July, 2000 notifying her that having regard to the financial constraints she could draw advance of ₹ 5,000/- instead of ₹ 3,000/- towards her shifting expenses. A reminder was issued to the respondent No. 3 on 19th August, 2000 informing the respondent No. 3 that she had neither reported for duty at Kanpur and had also not made any request for any leave and was absent from duty with effect from 24th July, 2000. She was notified that she should immediately comply with the directions given in the transfer letter dated 5th July, 2000 failing which necessary disciplinary action would be taken against her. A cheque purported to be towards her salary for the month of July, 2000 was enclosed. This letter and cheque was sent from Kanpur to the respondent No. 3. The respondent No. 3 however did not comply with the order of transfer and in these circumstances she was given a last opportunity vide letter dated 31st August, 2000 for complying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. In these circumstances ex-parte proceedings were taken against the respondent No. 3 which culminated in an inquiry report dated 26th December, 2000 whereby the inquiry officer held that the charge of absenteeism and disobedience of orders of the petitioner stood proved by it and she was guilty of all the charges with which she had been charged. The inquiry officer sent a copy of the inquiry report to the respondent No. 3 vide a registered letter dated 27th December, 2000. 10. After consideration of the inquiry report the management concurred with the findings of the inquiry officer and decided to dismiss the respondent No. 3 from service with immediate effect. Vide letter dated 11th January, 2001 the respondent No. 3 was informed of the decision of the petitioner and a cheque towards full and final payment of her dues was enclosed therewith. 11. The respondent No. 3 at this stage sent a demand notice to the petitioner endorsing copies thereof the office of the labour officer and the Conciliation Officer at Karam Pura, New Delhi against the order of dismissal. 12. This was replied to by the petitioner vide letter dated 28th March, 2001. The respondent No. 3 therea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplaint made by the respondent No. 3 on the ground of territorial jurisdiction on the ground that the letter of appointment which was issued to the respondent No. 3 permitted it to transfer the respondent No. 3 anywhere in India and on transfer of her services to Kanpur having been effected the respondent No. 1 had no jurisdiction to entertain a dispute raised at her instance. The other limb of the petitioners' challenge is based on the stipulation contained in the letter of appointment which clearly provided that the courts at Kanpur would have jurisdiction in case of any dispute between the parties. 16. The petitioner has contended that on the passing of the order of transfer, which was in terms of the letter of appointment accepted by the respondent No. 3, the situs of respondent No. 3's employment changed from Delhi to Kanpur. The respondent No. 3 did not challenge the order of transfer and did not seek any industrial adjudication thereon. She refused to join at the place of transfer and disobeyed the directions of the petitioner. The charge sheet against alleged absenteeism and disobedience on the part of the respondent No. 3 which were also not challenged by her. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Industrial Disputes Act 1947 is a social welfare legislation and does not provide any territorial limits for exercise of the of the powers by the authorities and for this reason alone no fault can be found in the order of reference. 20. So far as the stand of the respondent No. 1 is concerned, it is pointed out that the respondent No. 3 had given her address as that of Delhi. The address given of the petitioner was also the address of his Delhi office and it had also been stated that the respondent No. 3 had been working in Delhi. In these circumstances the respondent No. 1 was of the view that it was the appropriate Government for the purpose of disputes between the parties in the Industrial Disputes Act 1947 as the workman had been employed at Delhi. 21. Having heard the learned Counsel for the parties and perused the available record, I find that there is no dispute that the letter of appointment stipulated that the respondent No. 3 could be transferred anywhere in India. The respondent No. 3 had agreed to the condition that she can be transferred to any of the group companies of the petitioner and had accepted the terms and conditions knowing the implications thereo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumlal Mills v. Vin(D.M) and Ors. 1956(i) LLJ 557 wherein the High Court had held that the Act did not deal with the cause of action nor did it indicate what factors will confer jurisdiction upon the court and consequently the well known tests of a jurisdiction would require to be complied with to which the court or tribunal would have jurisdiction in the matter. 25. In Workmen of Shri Ranga Vilas Motors(P) Ltd. Vs. Sri Rangavilas Motors(P) Ltd. and Ors. 1967 SC 1040 an employee had challenged his order of transfer from Bangalore in Karnataka to Krishna girl in Tamilnadu as being illegal for the reason that the conditions of service did not permit such a transfer. Ultimately the management had framed charges against the employee and removed him from service. The employee challenged the order of transfer as well as order of his dismissal. The dispute raised by the workman was referred for adjudication by the labour authorities at Bangalore for adjudication to the labour court which was also located at Bangalore in the following terms : 1. Whether the order of the management of Sri Rangavilas Motors(Private) Ltd., in transferring the workman Sri R.Mahalingam, Foreman, from thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 State has jurisdiction to make a reference under Section 10 of the Act. 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. 16. Mr. Malhotra urges that the finding of the Labour Court that the transfer was illegal was perverse. It is not necessary to go into this question because once it is held that there is an agreement between the company and Mahalingam that he could not be transferred from Bangalore, the transfer would be bad. The Labour Court had observed that one of the terms of agreement was that the company had agreed not to transfer Mahalingam to any place out of Bangalore for a period of ten years; the company had transferred Mahalingam from Bangalore to the Head Office at Krishnagiri and this action of the company was in contravention of the terms of the agreement. 27. Learned counsel for the petitioner has submitted that the Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 970 (2) AII ER 294 Lord Reid said, 'Lord Atkin's speech...is not to be treated as if it was a statute definition. It will require qualification in new circumstances.' Megarry, J. in (1971) 1 WLR 1062 observed: 'One must not, of course, construe even a reserved judgment of even Russell L.J. as if it were an Act of Parliament.' And, in Herrington v. British Parliament Board (1972) 2 WLR 537 Lord Morris said: There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. 20. The following words of Lord Denning in the matter of applying precedents have become locus classicks Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d thus: 37. We have carefully considered to submissions made on behalf of the respective parties and the law regarding jurisdiction which has been considered in various cases both from the view point of the Industrial Disputes Act and the Constitution of India. As was observed by the Hon'ble Supreme Court in the Ranga Vilas case (vide supra), jurisdiction would have to be decided not only on the basis of the situs of employment, that is, where the dispute arises and the effects thereof are felt, but also on the interconnected question relating to cause of action. The question of control of an employee came up for consideration in the Lipton case (vide supra), relied upon Sri Mitra, but as pointed out by Sri Oil Mohammed, appearing for the State, the said matter was decided on the sole question of control and did not take into consideration either the question relating to situs of employment or cause of action. The aforesaid contention was considered by the Full Bench of the Patna High Court in the case of Paritosh Kumar Pal 1984 (2) LLN 617, (vide supra), in which while placing reliance on the Ranga Vilas case it was observed that the ratio of the Lipton case is confined to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces in Bombay and the Government of Maharashtra would have been the appropriate Government to make a reference under Section 10 of the aforesaid Act in respect of such dispute. 42. Cause of action is basically a concept within the meaning of the Code of Civil Procedure as also Article 226 of the Constitution of India. As was pointed out in Umasankar Chatterjee case, 1982 (2) LLN 7531 (vide supra), the order of removal undoubtedly gave rise to a cause of action for the appellant therein to institute an action for the establishment of his right to be in service. The impugned order of removal having become effective in Calcutta where it was received by the appellants a part of the cause of action must be held to have arisen in Calcutta within the jurisdiction of this Court. As was pointed out by Sri Mitra, Umasankar Chatterjee case was one under Article 226 of the Constitution and Clause (ii) of Article 226 was under consideration in the said case. The position under the Industrial Disputes Act is a little different and cause of action will have to be related to either the theory of 'control' or the theory relating to 'situs of employment.' In view of the facts disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ately held that it had jurisdiction to entertain the dispute which finding was assailed before the Andhra Pradesh High Court. Placing reliance on the pronouncement of the Full Bench of the Patna High Court in Paritosh Kumar Pal's case(supra), the court observed thus: 36. In my considered view, by virtue of the transfer orders dated 9-9-1994 and the subsequent letter dated 6-10-1994, wherein it was mentioned that the workman ceased to be an employee at Hyderabad, his situs of employment becomes the office of Manipal. Therefore, as contended by the counsel for the management, just because the workman stayed illegally at Hyderabad without proceeding to Manipal or just because he was pursuing legal remedies at Hyderabad, it cannot validate the illegal stay of the workman at Hyderabad and confer the jurisdiction on the Courts in Andhra Pradesh. 37. The other contention of the workman is that the question of disobedience would arise only when the transfer order is lawful and that by transfer his service conditions and other emoluments were affected. Admittedly transferability was one of the service conditions. Except contending that the transfer is illegal and his service condi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct in not joining at the new station. Further I one again reiterate that I am in full agreement with the Full Bench judgment of the Patna High Court and hold that the situs of employment would become paramount in raising the industrial dispute. Since the situs of the employment of the workman was at Manipal with effect from 3-10-1994, as indicated in the order of transfer dated 19-9-1994 and notice dated 6-10-1994 and the same was treated as misconduct, by the office at Bangalore. 42. In other words he ceases to be an employee of Hyderabad office with effect from 3-10-1994 and supposed to have born at the new station at Manipal, within the jurisdiction of Bangalore Office. Therefore, as contended by the learned Counsel for the Management, no cause of action arose for the workman at Hyderabad with effect from 3-10-1994 and mere stay at Hyderabad does not create any legal right to agitate his grievance about his termination after the cessation at Hyderabad office. At the most his stay at Hyderabad office. At the most his stay at Hyderabad is only illegal and as rightly pointed, the same amounts to absenting himself from attending the duties at the new station. To put it in a diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iemens Limited case whereby it has been held that the employee seizes to be the employee of the office at the place of transfer on the notified date and he is supposed to have been called at the new station to which he stands transferred. Mere continuation of stay at the place whether the employee has been transferred does not create any legal right to adjudicate his grievance by his termination after the cessation of his employment at the office wherefrom he is transferred; his continuous stay at such place is illegal and amounts to absenting himself from attending duties at the new station. Stay at the place wherefrom an employee is transferred must be for valid reasons. 37. A workman cannot create an artificial cause of action to raise a dispute at a place wherefrom he/she has been transferred by incidentally questioning the order of transfer while challenging the order of termination of service. In the instant case upon issuance of the order of transfer and its receipt by the respondent No. 3, the Delhi office of the petitioner no longer had any control over respondent No. 3 whose services stood transferred to Kanpur and it was the Kanpur office which had control over all se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executive instructions issued in this behalf shall also come within the purview thereof. Situs of office of Parliament, legislature of a State or authorities empowered to make subordinate legislation would not by itself constitute any cause of action or cases arising. In other words, framing of a statute, statutory rule or issue of an executive order or instruction would not confer jurisdiction upon a court only because of the situs of the office of the maker thereof. 41. It is noteworthy that the doctrine of forum conveniens is also guiding the courts in adjudicating upon and deciding issues, objections relating to territorial jurisdiction. This doctrine find its base in convenience to parties and applies the principles that the court having the closest connection to the lis would guide the court in deciding as to the objections relating to territorial jurisdiction of the courts. In this behalf in 2004(186)ELT3(SC) Kusum Ingots Alloys Ltd. v. Union of India, the court held thus: 10. Keeping in view the expressions used in Clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction of cause of action accrues within the jurisdiction of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder would not form part of bundle of facts which are necessary for effective adjudication of the lis. Therefore the mere receipt of the order of termination of service at Delhi by the respondent No. 3 in the instant case would not create jurisdiction in the respondent No. 1 to consider the complaint made by the respondent No. 3 or to exercise jurisdiction under Section 10 of the Industrial Disputes Act 1947. 46. In this behalf it would appropriate to also advert to the Full Bench pronouncement of the High Court of Judicature at Patna in a dispute between Paritosh Kumar Pal v. State of Bihar 1985(33)BLJR150 . In this case the court was called upon to answer a question as to whether the situs of employment of the workman would determine the locus for the territorial jurisdiction of the tribunal to entertain a dispute arising from the termination of his service under the Industrial Disputes Act 1947. 47. Shri Paritosh Kumar Pal, the writ petitioner had been appointed as a medical cum sales representative of the respondent company. On certain disputes arising between the writ petitioner and his employer company the petitioner was charge sheeted and thereafter his services were t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject-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 respondent No. 5. And again: If that is going to be the subject-matter of the inquiry before the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... post and receive wages therefore. The Full Bench held that, Therefore, on the anvil of the principle of where the impugned order operates, the situs of the employment of the workman is patently significant. It was further held that on the second principle attracted to the industrial dispute having some nexus with the territory of the State, the situs of employment of the workman assumes importance. The Full Bench held that once a firm finding is arrived at that the workman was employed within a specific territory or State, the termination of his services there under has an obvious and direct nexus with such territory of such State. Such a nexus may not be necessarily between the territory of the state with the industry or its head quarters. 50. In the facts of the case, the court was of the view that the employee was located in the State of Bihar and the order of termination would being there and in these circumstances it was held that the State of Bihar was the appropriate Government and the reference by it was consequently valid. The judicial precedent has held that broadly speaking those very considerations which apply to civil litigation in Constituting cause of action ..... X X X X Extracts X X X X X X X X Extracts X X X X
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