- 1 - WP No.11610 of 2012 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE6H DAY OF FEBRUARY, 2023 R BEFORE THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION No.11610 OF2012(L-TER) BETWEEN: A VISHWANATH SHETTY S/O KANTHAPPA SHETTY AGED52YEARS DEVARAGIRI NILAYA OPP APPORVA MEDICALS, SHIMOGA572201. …PETITIONER (BY SRI. SARAT CHANDRA BIJAI., ADVOCATE) AND: THE MANAGEMENT OF JAGSONPAL PHARMACEUTICALS LTD., T-210-J, SHAHPUR JAT, NEW DELHI11001 REPRESENTED BY ITS MANAGING DIRECTOR …RESPONDENT (BY SRI. JOSHUA HUDSON SAMUEL .,ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES226& 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE ORDER
/AWARD DT68.11 IN ID APPLN (LCM) NO.15/1997 ON THE FILE OF LABOUR COURT, MANGALORE ie., ANNX-A IN REJECTING THE SAID ID APPLN ON THE PRELIMINARY ISSUE OF TERRITORIAL JURISDICTION AND ALSO BE PLEASED TO QUASH THE ORDER
DT172.11 PASSED ON IA DT82.10/9.02.10 FILED BY THE RESPONDENT IN THE SAID ID APPLICATION ie., ANNX-B THIS WRIT PETITION, COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: - 2 - WP No.11610 of 2012 ORDER
1 The petitioner is before this Court seeking for the following reliefs: a. Issue a Writ in the nature of certiorari quashing the Order/Award dated 06-08-2011 in I.D. Application (LCM) No.15/1997 on the file of Labour Court, Mangalore i.e. Annexure-A in rejecting the said ID Application on the preliminary issue of territorial jurisdiction and further also be pleased to quash the Order dated 17.2.2011 passed on I.A. dated 08-02- 2010/09-02-2010 filed by the Respondent in the said ID Application i.e., Annexure-B; b. For such other and further relief/s as this Hon’ble Court deem fit to grant under the circumstance of the case including the cost of this Writ Petition.
2. The dispute raised by the petitioner by filing a claim petition in I.D. No.15/1997 before the Labour Court, Mangalore came to be dismissed on a finding on the preliminary issue that it did not have territorial jurisdiction. It is the said order which is under challenge in the present petition.
3. Sri.Sarat Chandra Bijai, learned counsel for the petitioner would submit that, 3.1. The petitioner was engaged as a ‘Medical Representative’ of respondent-employer and - 3 - WP No.11610 of 2012 was stationed in Shimoga. He refers to the dismissal order dated 8.02.1997 to state that even as per the said letter the employer has stated that the operation of the Shimoga headquarters are not viable and for that reason he was permitted to take a transfer to Udupi at PSR headquarters, remain in Shimogga as Sales Representative at Generic division for Karnataka or take a transfer to Madras as Sales Representative of general division. Subsequently he was asked to report at Bangalore Depot which was also not adhered to and in that background, he was transferred to New Delhi headquarters. 3.2. When the petitioner did not even report at New Delhi headquarters, the aforesaid letter dated 8.02.1997 came to be issued terminating the services of the petitioner on the ground that he had abandoned his services. Thus, he submits this letter issued by the employer from New - 4 - WP No.11610 of 2012 Delhi having been received by the petitioner at Shimoga, the last employment of the workman being at Shimoga, the labour Court in Karnataka having jurisdiction over Shimoga would have jurisdiction on the matter and it was rightly filed before the said Court. 3.3. The labour court without appreciating this aspect taking into consideration that the workman had been transferred to New Delhi and that the agreement of employment stated that the disputes have to be resolved within the jurisdiction of New Delhi, held that it did not have territorial jurisdiction to decide the matter, which he submits is not proper and correct and is required to be set-aside.
4. Sri.Joshua H.Samuel, learned counsel for the respondent employer would submit that, 4.1. The last transfer having occurred and the workman being directed to report to New Delhi, it would be only the courts at New Delhi would - 5 - WP No.11610 of 2012 have jurisdiction and not the labour Court having jurisdiction over Shimoga. 4.2. A reference made by the appropriate government stand on a different footing than a claim petition filed by a workman inasmuch as if a reference is made by the appropriate government, the appropriate government would have applied its mind as regards the jurisdiction and any of the parties to the reference could have no grievance over the reference in terms of the jurisdiction. When a dispute is filed under Section 10(4-A) of the Karnataka Amendment to the Industrial Dispute Act, 1947, it is one of the parties, more particularly workman having chosen the Forum, the labour Court where proceedings have filed would have the jurisdiction decide the aspect of territorial jurisdiction as a preliminary issue and in this regard learned counsel relied upon the decision of the Hon’ble Apex Court in Special leave - 6 - WP No.11610 of 2012 Petition No.12511/2016 [V.G.Jagdishan - v- M/s Indofos Industries Limited]. , more particularly para 6.5 thereof which is reproduced hereunder for easy reference:
6.5. In the case of D.P.Maheshwari Vs. Delhi Administration and Ors. (1983) 4 SCC293is pressed into service by learned Senior Advocate appearing on behalf of the appellant in support of the submission that the Labour Court ought not to have given the decision only on preliminary issue and ought to have disposed of all the issues, whether preliminary or otherwise at the same time. On facts the said decision is not applicable to the facts of the case on hand. In the aforesaid decision no absolute proposition of law was laid down by this Court that even the issue touching the jurisdiction of the court cannot be decided by the court as a preliminary issue and the court has to dispose of all the issues, whether preliminary or otherwise, at the same time. When the issue touches the question of territorial jurisdiction, as far as possible the same shall have to be decided first as preliminary issue. Therefore, in the present case, the Labour Court did not commit any error in deciding the issue with respect to the territorial jurisdiction as a preliminary issue in the first instance.
4.3. The labour Court having jurisdiction to decide the aspect of pecuniary jurisdiction as a preliminary issue, the labour Court having decided the same, this Court ought not to interfere with.-. 7 - WP No.11610 of 2012 5. Heard Sri. Sarat Chandra Bijai, learned counsel for the petitioner and Sri.Joshua Hudson Samuel, learned counsel for respondent. Perused papers.
6. The short question that would arise for consideration in the present matter is, whether the claim petition filed by the workman in the labour Court, D.K., Mangalore (camped at Shimoga) is filed before the labour Court having jurisdiction over the present matter?.
7. The submission made by Sri.Joshua Samuel, learned counsel that the territorial aspect could be adjudicated by a labour Court as a preliminary issue cannot be disputed. Whenever any proceedings are filed before any Authority or Court and if one of the party were to raise an objection as regards pecuniary jurisdiction or territorial jurisdiction, the said Court could decide the same as preliminary issue.
8. In the present matter, it is not whether the labour Court had the power to decide the issue but whether the decision made by the labour Court is proper or - 8 - WP No.11610 of 2012 not is in question. The said question can only be answered with reference to the facts of the matter. As could be seen from the letter terminating the services of the workman dated 8.2.1997, the petitioner had been appointed at Shimoga, subsequently opportunity was given for him to take transfer to Udupi, stationed at Shimoga or to go to Madras, later on he was transferred to Bangalore, subsequently to New Delhi.
9. If the submission of Sri.Joshua Samuel is accepted that the workman would only have to initiate proceedings to the place where he is transferred, the same in the present matter would give rise to chaos inasmuch as the petitioner could have filed a petition in Udupi, Madras, Bangalore or New Delhi, merely because the employer has transferred him to so many places.
10. Such a submission if accepted could also give rise to a situation which could result in exploitation of the workman inasmuch as the employer could at its - 9 - WP No.11610 of 2012 whims and fancies transfer a workman to any place in the country and contend that it is in the place of transfer that the dispute has to be raised. The dispute is not as much as the transfer to a particular location but transfer from a particular location. That apart, in the present case, the dispute is as regards termination of services of the petitioner which termination, in my considered opinion, occurred in Shimoga since the notice of termination which had been issued from New Delhi would be complete only on receipt thereof by the workman at the address shown in the notice which is Shimoga.
11. In view of the above, I am of the considered opinion that rest of the contentions urged need not be addressed by this Court. Hence, I pass the following: ORDER
i. The writ petition is allowed. ii. Impugned Order dated 6.08.2011 in I.D. No.15/1997 passed by the Labour Court, - 10 - WP No.11610 of 2012 Mangalore on the preliminary issue of territorial jurisdiction is set-aside. iii. It is held that the labour Court, Mangalore has territorial jurisdiction to decide the matter. The labour Court is directed to proceed with the matter on merits. iv. This court has not expressed any opinion on merits of the matter and all contentions are left open. Sd/- JUDGE LN List No.:
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