IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13468 of 2002 Onkar Srivastava @ Onkar Nath Srivastava, son of Late Rajendra Prasad, resident of F/145, S.K.Puri, Boring Road, Patna-800 001, and at present residing at Ashokpuri, Khajpura, P.S.L.B. Shastrinagar, Patna – 80001 … Petitioner Versus 1. The Presiding Officer,Labour Court, Patna 2. M/s. Dharampal Satyapal Ltd., B-1, Sector 3, Noida, Uttar Pradesh – 221301 3. The Deputy General Manager, M/s. Dharampal Satyapal Ltd. B-1, Sector-3, Noida, Uttar Pradesh – 221301.. ………………… ………………….Respondents ----------- For the petitioner: M/s. Madhuresh Prasad & Ravi Verma, Advocates For the State: Mr. Priyank Samdarshi, AC to SC 20 For Resp. Nos. 2 & 3: M/s.. Shivaji Pandey, Sr. Advocate & Shantanu Kumar, Advocate. ---------- 7. 4.5.2010 Heard learned counsels for the parties. The petitioner prays for quashing of the order dated 10.9.2002 passed by the Presiding Officer, Labour Court in BSE Case No. 31 of 1999 by which the petitioner’s application under Section 26(2) of the Bihar Shops and Establishments Act, 1954 has been rejected upholding the preliminary objection raised by the respondent nos. 2 and 3 by holding that the Labour Court, Patna has no jurisdiction in view of Clause VI (10) of the agreement in appointment letter dated 29.7.1993 arrived at between the petitioner and the respondents and accordingly returned the complaint 2 application to the petitioner for re-presenting before the proper Court at Ghaziabad. The relevant facts for the decision of the present matter lie within a narrow compass. The petitioner was appointed as Area Sales Manager by appointment letter dated 29.7.1993 (Annexure-1) by the respondent- company M/s. Dharampal Satyapal Limited. By the letter dated 29.1.1994 his appointment on the post of Area Sales Manager based at Patna was confirmed. In the appointment letter it was stated that his services were liable to be transferred to any department or any office of the company in India. However, the relevant clause of the appointment letter is clause 10 which provides that the Court/Authorities in Ghaziabad will only have jurisdiction in case of any dispute concerning the said employment. Subsequently, it appears that certain dispute or differences arose between the petitioner and the respondents in relation to his transfer to Noida and by letter dated 8.4.1999 (Annexure-7) his services were terminated with immediate effect. Aggrieved by the said action of the respondents the petitioner filed a complaint under Section 26(2) of the Bihar Shops and 3 Establishments Act, 1953 which was registered as BSE Case No. 31 of 1999. The respondents appeared and filed a petition on 26.4.2001 raising a preliminary issue regarding the maintainability of the complaint filed under Section 26(2) of the BSE Act. The Presiding Officer, Labour Court by his impugned order dated 10.9.2002 came to the conclusion that the respondent-company is legally covered under the BSE Act since the Establishment has requested the E.S.I. authority for the purpose of depositing the contribution of the employees of the Patna Branch; the applicant has received his salary from Patna Branch; the company has its permanent account in the State Bank of India, Fraser Road, Patna; the company is registered under the Bihar Sales Tax Act and the company has its Branch at Patna and, accordingly, the company has establishment at Patna. However, after considering the aforesaid Clause 10 of the appointment letter, the Labour Court came to the conclusion that since the jurisdiction at Ghaziabad is specified in the contract, the intention to exclude all other jurisdictions in such cases is to be inferred and it is accordingly to be properly construed and for the said 4 reasons the complaint application was returned to the petitioner for re-presenting it before the Court at Ghaziabad. Learned counsel for the petitioner submits that the Labour Court has wrongly construed the provisions of law in allowing the preliminary objection regarding maintainability in favour of respondents. It is submitted that the U.P. Shops and Establishments Act would not be applicable as the petitioner was not working in the establishment of the Company in U.P. but in the establishment of the company in Bihar. Hence, although he is an employee of the Company but he is not an employee under the Company’s establishment in U.P. and would not be entitled to the benefits of the U.P. Act. It is further submitted by him that certain benefits have been conferred upon the petitioner by the Bihar Shops and Establishments Act and such benefits cannot be ousted on the basis of any contract entered into between the parties. The ouster clause as contained in Clause 10 of the appointment letter is thus violative of Section 23 of the Contract Act since it in effect would defeat the provisions of the BSE Act and further it would 5 be opposed to the public policy for granting benefits to the workmen under such enactment and therefore, it must be held that the object of the said agreement is unlawful and consequently void in terms of Section 23. It is further submitted that the said Clause 10 is also violative of Section 28 of the Contract Act being an agreement in restraint of legal proceedings as the petitioner has been absolutely debarred from enforcing his rights under the contract of appointment by the legal proceedings before the Labour Court under the BSE Act and discharging the respondents from their liability under the said Act. In support of the aforesaid submissions learned counsel also refers to the provisions of the U.P. Shops and Establishments Act to show that there is no provision corresponding to Section 26(2) of the BSE Act contained in the said enactment and thus by returning the complaint petition for re-presenting before the proper forum at Ghaziabad the Labour Court has in fact left the petitioner without any proper remedy. In support of the aforesaid proposition learned counsel relies upon a decision of the Supreme Court in 6 the case of New Moga Transport Co. Through its Proprietor Krishanlal Jhanwar Vs. United India Insurance Co. Ltd. and others: (2004) 4 SCC 677, in para-14 of which it has been held as follows:- “14. By a long series of decisions it has been held that where two courts or more have jurisdiction under CPC to try a suit or proceeding, an agreement between the parties that the dispute between them shall be tried in any one of such courts is not contrary to public policy and in no way contravenes Section 28 of the Indian Contract Act, 1872. Therefore, if on the facts of a given case more than one court has jurisdiction, parties by their consent may limit the jurisdiction to one of the two courts. But by an agreement parties cannot confer jurisdiction on a court which otherwise does not have jurisdiction to deal with a matter. [ See Hakam Singh V. Gammon (India) Ltd.: (1971) 1 SCC 286: AIR 1971 SC 740 and Shriram City Union Finance Corpn. Ltd. V. Rama Mishra (2002) 9 SCC 613: AIR 2002 SC 2402]” He further relies upon a decision of the Supreme Court in the case of Harshad Chiman Lal Modi Vs. DLF Universal Ltd. and another: (2005) 7 SCC 791 = AIR 2005 SC 4446, in para-20 of which it has been held as follows:- “20. In our opinion, the 7 submission of the learned counsel for the appellant that the parties had agreed that the Delhi Court alone had jurisdiction in the matters arising out of the transaction also has no force. Such a provision, in our opinion, would apply to those cases where two or more courts have jurisdiction to entertain a suit and the parties have agreed to submit to the jurisdiction of one court.” Learned counsel for respondent nos. 2 and 3, on the other hand, submits that it is evident from the terms and conditions of the employment of the petitioner as contained in various letters on the record including the appointment letter that the petitioner was an employee of the head office and merely posted at Patna. Although physically he remained at Patna but notionally he is to be treated as at Ghaziabad and will be deemed to be working in the head office establishment of the company at Ghaziabad and thus his case comes within the situs of Ghaziabad and in the said circumstances, U.P. Shops and Establishments Act would apply to his case. Learned counsel however, admits that there is no corresponding provisions similar to Section 26(2) of the BSE Act. He further relies upon the U.P. Industrial 8 Disputes Act which provides for such an individual dispute relating to cessation of employment as also covered by definition of industrial dispute, under Section 2 (A) of the Act, and further provides for a reference of industrial disputes to the Labour Court and Industrial Tribunal under Section 4(K) of the Act. It is further submitted that under Section 11A of the U.P. Act coupled with the notification dated 29.8.1990 power of the State Government to refer a dispute to Labour Court/Industrial Tribunal has been delegated to the Additional Labour Commissioner, Ghaziabad and thus the Ghaziabad Court has full authority to take up the case of the petitioner. It is urged by learned counsel for the respondents that the petitioner having entered into the said agreement with the employer by confirming and accepting the terms and conditions of the letter of appointment he would be bound by clause 10 thereof which limits the jurisdiction relating to service disputes to Ghaziabad Courts alone. Having considered the submissions of learned counsels for the parties and the materials on the record, it 9 is evident that there is no dispute with regard to the finding of the Labour Court that the establishment of the respondent no. 2 at Patna was covered under the provisions of the Bihar Shops and Establishments Act. The only point to be considered is whether the Labour Court was right in holding that in terms of Clause 10 of the letter of appointment, the jurisdiction of the Labour Court to hear the matter under Section 26(2) of the BSE Act was ousted. In this regard the law has been clearly laid down by the various decisions of the Supreme Court as considered in the cases cited on behalf of the petitioners that where more than one court has jurisdiction in the facts of a given case then it is open to the parties to agree to limit the jurisdiction to one of the two or more Courts but the parties cannot confer jurisdiction upon a Court by their agreement if it otherwise does not have jurisdiction to deal with the matters. In the present matter admittedly the petitioner has valuable right to directly move under Section 26(2) of the BSE Act against any order of dismissal/discharge or otherwise termination of the employment. No such 10 right is admittedly provided under the U.P. Shops and Establishments Act to directly move the Courts in case of such cessation of service. Moreover, learned counsel for the respondents was unable to show that even if there had been such a provision under the U.P. Act an employee working in an establishment at Patna would be treated as an employee of an establishment with its premises located at Ghaziabad in U.P. and would have the right to move the Labour Court or authorities in U.P. Similarly, learned counsel for the respondents cannot cite any decision to show that a reference under the U.P. Industrial Disputes Act would be made at the instance of the petitioner who is an employee of the company located at Patna. In the absence of a clear cut remedy available under the Labour Welfare Legislation, it cannot be said that both the Courts at Patna and Ghaziabad are equally competent to entertain a dispute with respect to the termination of the employment of the petitioner. Hence, by no agreement any ouster could have been made of the jurisdiction of the Labour Court at Patna. As a matter of fact, the U.P. Shops and 11 Establishments Act does not provide for any such remedy as is available under Section 26(2) of the BSE Act and thus, it is not a case where two Courts are equally competent to decide a matter and the parties have by agreement decided to confine the jurisdiction to one of them. In the said circumstances, Clause 10 of the appointment letter would clearly be hit by the provisions of Section 28 of the Contract Act. It would also be hit by Section 23 of the Contract Act as its effect is to defeat the provision of Bihar Shops and Establishments Act and since the said Act is Welfare Legislation for the benefit of employees such ouster would also be oppose to public policy. It should also be remembered that such welfare legislations in favour of employees have been enacted by recognizing the unequal bargaining power of the employer and employee, and for the said reason any ouster of jurisdiction provided by such legislations must be ipso facto held to be void as opposed to public policy. In the light of the aforesaid discussions, this Court finds the return of the complaint petition by the Labour Court to the petitioner for re-presentation before 12 proper Court is wholly unjustified as there was no proper Court in Ghaziabad before whom the petitioner could re-present the same and the ouster clause in the appointment letter itself is illegal and void. Thus, the order dated 10.9.2002 cannot be permitted to stand and it is accordingly quashed and the matter is remitted to the Labour Court, Patna to decide the same in accordance with law. The writ application is accordingly allowed. It is made clear that this Court has not expressed any opinion on the merits of the application. S. Pandey ( Ramesh Kumar Datta, J.)