1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. WRIT PETITION NO.2007 OF 2009 Manish Ashok Badkas ..Petitioner. Vs. M/s. Novartis India Ltd. and another ..Respondents. ..... Mr. M.D. Nagle for the Petitioner. Mr. P.K. Rele, Senior Advocate with Mr. Vinod Tayade, Mr. R.P. Rele i/b Mr. Piyush Shah for the Respondents. ..... CORAM: DR. D.Y. CHANDRACHUD, J. 3rd November, 2009. P.C. : 1. The Petitioner was employed as a medical representative in November 1991 and was confirmed in service. The headquarters of the Petitioner were at Sagar in the State of Madhya Pradesh until 1996 and then at Ujjain until 19th February, 2003. The services of the Petitioner were terminated on the ground of loss of confidence on 19th February, 2003. The Petitioner instituted a complaint of unfair labour practices. The complaint was dismissed on 5th January, 2009 by the Labour Court on the ground that it had no jurisdiction to entertain and try the complaint, in view of the law laid down by a Division 2 Bench of this Court in Glaxo Smith Kline Pharmaceuticals Ltd. v. Abhay Raj Jain1 A review petition filed thereafter was dismissed. The Industrial Court in revision has confirmed the order of the Labour Court holding that, the view was consistent with the judgment of the Division Bench in Glaxo Smith Kline. 1A. In Glaxo Smith Kline the employee in question was working as a medical representative at Udaipur. His services were transferred to Imphal. The order of transfer was impugned in a complaint of unfair labour practices under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The jurisdiction of the Industrial Court was questioned on the ground that the Act was operative only in the State of Maharashtra and it was necessary for a person complaining of an unfair labour practice to have been employed within the State. The Division Bench held after considering the provisions of the Act that it was the situs of the employment which would be the relevant factor to decide whether a complaint could be maintainable under the Maharashtra 1 2008 III CLR 894. 3 Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The Division Bench held that it was the actual adoption of the unfair labour practice which would be the governing factor and that would be at the place from where the employee is either sought to be transferred or at the place where he is sought to be transferred. The observations of the Division Bench in paragraphs 28 and 29 of the judgment are to the following effect : “It is thus clear that it is the situs of the employment which would be the relevant factor to decide the place of cause of action for initiating any legal proceedings. Once it is not in dispute that the respondent, at the relevant time, was employed at Udaipur and 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 to Imphal, both the places beyond the territory of the State of Maharashtra. 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 be 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 4 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’s2 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.” 2. The Labour Court cannot be held to be in error in coming to the conclusion that the termination of the services of the Petitioner who was employed in Madhya Pradesh would not give rise to a cause of action for instituting a complaint of unfair labour practices in the State of Maharashtra under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The judgment of the Division Bench in Glaxo Smith Kline holds that it is 2 2003 III CLR 93. 5 the situs of the employment which would be the governing factor in deciding the place where the cause of action for the institution of legal proceedings arise. It may be noted that in Glaxo Smith Kline also the order of appointment was issued in Mumbai and the order of transfer had also been passed from the head office at Mumbai. As a matter of fact, it was sought to be contended on behalf of the employee in that case that since the order was issued from the head office of the company at Mumbai, the cause of action arose not only at the place where the order was served but also at the place where it was issued and that every aspect of the service conditions had been controlled from Mumbai. On this basis it was urged that it could not be said that an unfair labour practice had not taken effect within the State of Maharashtra. These contentions were noted in paragraph 6 of the judgment. However, the Division Bench did not consider this to be relevant in order to enable the Industrial Court to entertain the complaint of unfair labour practices under the Act. Though the judgment in Glaxo Smith Kline, is in the case of an order of transfer the principles of law laid down there would be applicable to the facts 6 of the present case also. The Petitioner was employed in the State of Madhya Pradesh initially at Sagar until 1996 and thereafter at Ujjain until 19th February, 2003 when the order of termination was passed. In these circumstances, both the Labour Court and the Industrial Court having followed the binding judgment of the Division Bench, no case for interference under the supervisory jurisdiction of this Court is made out. 3. Earlier during the pendency of the complaint, the Labour Court had by its order dated 1st November, 2003 come to the conclusion that it had jurisdiction to entertain and try the complaint and hence, it was urged that it was not open to that Court to take a different view during the pendency of the complaint. From the record before the Court it would emerge that by its earlier order of 1st November, 2003, the Labour Court had relied upon the judgment of a Learned Single Judge of this Court in Glaxo Smith Kline Pharmaceuticals Ltd v. Abhay Raj Jain3 in holding that it had jurisdiction. The Labour Court in fact proceeded to note that this was “ a direct case” which would govern the issue. Subsequent thereto an order was passed by 3 2002(3) LLN 737. 7 the Labour Court granting interim relief which was carried in revision. Before the Industrial Court in revision Consent Terms were arrived at between the parties and proceedings were remanded back to the Labour Court for final disposal of the complaint. When the complaint came up for hearing, the Labour Court had before it the judgment of the Division Bench in Glaxo Smith Kline which was delivered on 12th August, 2008. The judgment of the Division Bench had in fact allowed the appeal preferred by the employer and set aside the judgment of the Learned Single Judge. In these circumstances, particularly in view of the fact that the view of the Learned Single Judge which was relied upon by the Labour Court in its earlier order dated 1st November, 2003 has been reversed by the Division Bench and both the Courts below have now followed the law laid down by the Division Bench, no valid ground has been made out for the interference of this Court. The Petition shall accordingly stand dismissed. ****