IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.14176 of 2002 Date of decision: 06.11.2009 Shri Vipin Bawa ....Petitioner versus The Chandigarh Administration and another ...Respondents. CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. N.K.Nagar, Advocate, for the petitioner. Mr.K.K.Gupta, Advocate, for the respondent. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. (Oral) 1. The writ petitioner challenges the rejection of a reference on the ground that on account of the contract of employment restricting the jurisdiction to the Court of Mumbai, the “appropriate Government” shall be only the State of Maharashtra under Section 2(a) of the Industrial Disputes Act. The admitted position is that the workman is a sales representative employed at Chandigarh and the situs of employment shall always be relevant factor to determine the jurisdiction of the Court concerned. Section 2(a) that defines 'appropriate Government' under the Industrial Disputes Act refers to a host of situations that make the Central Government as appropriate and sub-clause (2) in Section 2(a) refers to the State Government as the appropriate Government in relation Civil Writ Petition No.14176 of 2002 - 2 - to any other industrial dispute. Sub-Clause (2) is in the nature of residuary clause and if sub-clause (1) does not operate, it shall be only clause (2). The cause of action in this case certainly arises in the place where the workman was having the situs of employment and it also would arise in the place where the factory was situate. The issue would be the effect of restricting it only to the city of Bombay (now Mumbai). The exclusion invariably depends upon the recitals found in the contract. Clause 15 of the contract of employment reads as follows:- “........In case of any dispute that may arise between you and the Company in connection with your employment or in connection with any of the matters specified in this agreement, it is specifically agreed and understood by and between the parties that the Courts situated in the City of Bombay alone will have jurisdiction to try and entertain such matters.” The effect of this clause is that if in a contract one or more places will have jurisdiction and the parties were restricting the operation of the jurisdiction to only one place, such a clause will be effective and binding on the party. Without the expression 'alone', it could be possible for a workman to contend that the place of Chandigarh where he was working also had the jurisdiction and therefore, the appropriate Government could be the Government which has territorial jurisdiction. In this case, since the parties were restricting it only to the city of Bombay (now Mumbai), the Government that will have the jurisdiction to make a reference, shall only be the State of Maharashtra and not the Chandigarh Administration. 2. The learned counsel appearing for the petitioner refers to a decision of the Hon'ble Supreme Court in Bikash Bhushan Ghosh and others Versus M/s Novartis India Limited and another-2007(5) SCC Civil Writ Petition No.14176 of 2002 - 3 - 591. While setting out the places where the cause of action would arise in the context of a reference under Section 10 of the Industrial Disputes Act, the Hon'ble Supreme Court held that situs of employment of the workman would be a relevant factor for determining the jurisdiction of the Court concerned and that further unless respondents suffered any prejudice, they could not have questioned the jurisdiction of the Court. The decision of the Hon'ble Supreme Court only makes it possible for the workman to only contend that the situs of employment is also a place where cause of action had arisen to enable that Government within whose jurisdiction the place is situate, shall also exercise jurisdiction. There are yet other decisions which set out that the situs of employment will give particular the State Government the power to make a reference. The decisions are All India Institute of Medical Sciences Versus Attar Singh-2000(10 SCT 446; Pritam Singh Versus The Presiding Officer, Labour Court, U.T., Chandigarh-1994(1) SCT 460 and Hiraben Jivanbhai Chaudhari Versus R.C. Raval-1993(3) SCT 456. In the first of the above decisions in All India Institute of Medical Sciences , the place of work was seen to give the State Government where the person was working to have jurisdiction. I have already pointed out that there is no dispute with reference to such a circumstance. The issue is only whether there is any particular clause restricting such a cause of action and the effect of such restriction by a bilateral contract. The decision in Pritam Singh's case also was with reference to the place where the workman was actually employed as enabling that particular State Government to make a reference. The decision in Hiraben Jivanbhai Civil Writ Petition No.14176 of 2002 - 4 - Chaudhari's case has absolutely no relevance to this case for it deals with the effect of contract and the terms of service which are protected under Article 311 of the Constitution and in that context, the Gujarat High Court held that the services of Government employee cannot be terminated other wise than in terms of the contract of employment without following the statutory rules. 3. Learned counsel also refers me to a Bench ruling of this Court in National Building Construction Corporation Limited and another Versus State of Haryana and another-2007(1) Law Herald 690 that dealt with a situation of how a contract of an individual with a Government instrumentality has to be seen invoking the concept of reasonableness and fairness and where the bargaining power of the parties is unequal. If the party was contending that the contract was vitiated in anyway, it may perhaps be possible to refer to the relative bargaining strength of parties to state the non-enforceability of such a contract by reference to such lopsided contracts. In a case where the workman had gained the employment through a contract and he had the benefit of one clause, it would be impermissible the same time to contend at that another clauses was oppressive. A contract cannot be selectively discarded in terms of treatment which are inconvenient to the workman. I find no solace for the workman through the decisions referred to above. 4. The only issue is whether the Chandigarh Administration will have jurisdiction or not to make the reference. It would have had the jurisdiction but for the clause of the contract restricting it to the city of Civil Writ Petition No.14176 of 2002 - 5 - Mumbai. In a recent case on the subject of exclusion of jurisdiction by contract of parties, the Hon'ble Supreme Court in Rajasthan SEB Versus Universal Petrol Chemicals Limited-(2009) 3 SCC 107, upheld the validity of such a clause and held the jurisdiction to vest only with the place specifically agreed between the parties. The Court in such a case will apply the maxim, “expressio unius est exclusio alterius'. See Hamil Era Textiles Limited Versus Puromatic Filters (P) Limited-(2004) 4 SCC 670 , for the effect of a similar clause of restriction. The decision of the Government rejecting the reference is, under such circumstances, justified. The workman shall renew his plea before the appropriate Government and it shall be permissible for the workman to always explain the delay in approaching the Government by pointing out to the pendency of the proceedings before the Chandigarh Administration and later before this Court. If such a contention is taken, the appropriate authority will consider the issue of condonation of delay sympathetically in favour of the workman. 5. The writ petition is, accordingly, dismissed. (K.KANNAN) 06.11.2009 JUDGE sanjeev