WP/6668/2010 a/w ors. : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6668 OF 2010 The Nashik Merchants' Co-operative Bank Ltd., Nashik & anr. ... Petitioners V/s. Pralhad Budho Mahajan & anr. ... Respondents Mr.K.S. Bapat i/b M/s.Desai & Desai Asso. For Petitioners Mr.M.S. Topkar for Respondents CORAM:SMT.NISHITA MHATRE, J. JUDGEMENT RESERVED ON: SEPTEMBER 23, 2010 JUDGEMENT PRONOUNCED ON: OCTOBER 18, 2010 JUDGMENT: 1. Rule. Rule made returnable forthwith by consent of the parties. 2. The petitions have been filed by the Bank against an interim order passed by the Industrial court. Essentially three contentions have been raised by the learned advocate for the petitioners, namely, (i) that the Industrial Court in Nashik had no territorial jurisdiction to decide a complaint in respect of a transfer of an employee from Jalgaon to Surat, (ii) that the Industrial Court has committed a grave error by allowing the interim application without deciding whether the respondent is a workman and (iii) that when the appointment letter contains a clause of transfer, the Industrial Court ought not to have stayed the transfer order as there was no material before it for passing such an order. 3. On the other hand, the learned advocate for the respondent-workman has WP/6668/2010 a/w ors. : 2 : argued that the order of transfer emanated from Nashik where the bank had its Administrative Office and, therefore, the Industrial Court, Nashik had jurisdiction to decide the complaint. As regards the second point raised on behalf of the Petitioners, it is submitted by the learned advocate for the respondents that the Industrial Court has committed no error by deciding the interim application before deciding the status of the complainant as the transfer order was required to be stayed. As regards the last contention raised on behalf of the petitioners it is submitted that the appointment orders did not have a clause of transfer and, therefore, such an order could not have been passed by the management. 4. The first issue which I will have to consider is whether the Industrial Court Nashik had jurisdiction to entertain the complaints. Undisputedly, the petitioners which are multi-state scheduled bank have their administrative office at Nashik. The order of transfer issued to each of the respondent workmen in the petitions has been issued from Nashik by the Administrative Office of the Bank. The employee has been transferred from Jalgaon, where he is working, to Surat. Reliance has been placed by the learned advocate for the Bank on the judgment of the Division Bench of this Court in the case of Glaxo Smith Kline Pharmaceuticals Ltd. v/s. Abhay Raj Jain & Anr., 2008 III CLR 894 in support of his contention that the Industrial Court, Nashik had no jurisdiction to entertain the complaint. The Division Bench has held that in a complaint filed under MRTU & PULP Act alleging a malafide transfer, either the place from where the employee is sought to be transferred or the place of transfer would be the place of actual adoption of the unfair labour practice. The Division Bench has held that it cannot be said by any stretch of imagination that the unfair labour practice has resulted at the place from where the order of transfer was issued. WP/6668/2010 a/w ors. : 3 : 5. Although Mr.Topkar has brought to my notice the order passed by the Supreme Court in the Special Leave Petition filed against the judgment of the Division Bench in Glaxo Smith Kline's case (supra), the order does not set aside the decision of the Division Bench with respect to the jurisdiction of the Industrial Court. It appears that the workman in the case had resigned from service after filing the complaint and the SLP was dismissed as withdrawn with an observation that the question of law is left open to be decided in an appropriate case before the appropriate forum. Therefore, the judgment of the Division Bench still holds the field. 6. In the case of Bikash Bhushan Ghosh & Ors., Vs. M/s.Novartis India Ltd. & Anr., 2007 III CLR 521, the Supreme Court was dealing with a case wherein the State of West Bengal had referred an industrial dispute with respect to the termination of service of three employees for adjudication to the industrial tribunal, West Bengal. The Supreme Court noted that these orders of termination had been passed consequent upon the refusal of the workers to obey the orders of transfer. The transfer orders were served on the workers in Calcutta, transferring them to the other states. In these circumstances, the Court observed that when a part of the cause of action arises in one State, that State would have jurisdiction to make a reference for adjudication of the dispute. The Supreme Court noted its earlier judgments in the case Workmen of Shri Rangavillas Motors (P) Ltd. & Anr. v/s. Shri Rangavilas Motors (P) Ltd. & Ors., (1967) 2 SCR 528 wherein the Supreme Court observed that the appropriate question to be raised with respect to the jurisdiction is: “where did the dispute arise”. Answering this question, the Supreme Court held that there should clearly be some nexus between the dispute and the territory of the State WP/6668/2010 a/w ors. : 4 : and not necessarily between the territory of the State and the industry concerning which the dispute arose. In the case of Indian Express Newspaper (Bombay) Pvt. Ltd., v. State of West Bengal & Ors., 2005 II CLR 795, the Calcutta High Court had observed that the situs of employment is the place where an industrial dispute relating to the termination of services must be raised. The Supreme Court in Bikash Bhushan Ghosh & Ors. (supra), has observed that the question posed by the Division Bench was not the correct law. In para 15, it was observed thus: 15. With respect to the Division Bench, we do not think that it has posed unto itself a correct question of law. It is not in dispute that the appellants did not join their duties at the transferred places. According to them, as the orders of transfer were illegal, their services were terminated for not complying therewith. The assertion of the respondent that the appellants were relieved from job was unilateral. If the orders of transfer were to be set aside, they would be deemed to be continuing to be posted in Calcutta. The legality of the orders of transfer, thus, had a direct nexus with the orders of termination. What would constitute cause of action, has recently been considered by this Court in Om Prakash Srivastava v. Union of India wherein it was held: (SCC pp. 211- 12, paras 12-14) “12. The expression ‘cause of action’ has acquired a judicially settled meaning. In the restricted sense ‘cause of action’ means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above, the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove each fact, comprises in ‘cause of action’. (See Rajasthan High Court Advocates’ Assn. v. Union of India.) 13. The expression ‘cause of action’ has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts, which a plaintiff must prove in order to succeed. These are all those essential facts without the proof of which the plaintiff must fail in his suit. (See Gurdit Singh v. Munsha Singh.) 14. The expression ‘cause of action’ is generally understood to mean a WP/6668/2010 a/w ors. : 5 : situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases of suing; a factual situation that entitles one person to obtain a remedy in court from another person (see Black’s Law Dictionary). In Stroud’s Judicial Dictionary a ‘cause of action’ is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed, the plaintiff must prove in order to obtain judgment. In Words and Phrases (4th Edn.) the meaning attributed to the phrase ‘cause of action’ in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf. (See Navinchandra N. Majithia v. State of Maharashtra.)” 1. The Supreme Court therefore, held that when two States may have the requisite jurisdiction in terms of clause (c) of subsection (1) of section 10 of the Industrial Disputes Act because a part of cause of action arose in each of the States, either of the States had the jurisdiction to refer the dispute for adjudication. It appears therefore that the situs of employment is not the only criteria for determining the territorial jurisdiction for obtaining a reference. 2. In the case of Kankubai Shravikashram Trust & Ors. vs. Kamal w/o. Dattatraya Khjurkar & Ors., 1992 (1) Mh.L.J. 216 the Division Bench of this Court sitting at Nagpur Bench observed, while dealing with a matter under the MEPS Act, that three principles must be followed when the Court decides whether it has jurisdiction to try the proceeding, viz: (i) that the objection must be taken in the court of first instance; (ii) it should be taken at the earliest possible opportunity and (iii) there has been consequent failure of justice. The Court then observed that the petitioner in that case had not shown that because of the lack of territorial jurisdiction he had suffered a failure of justice. Relying on the judgment of the Supreme Court in Hiralal Patni v. Shri Kali Nath, AIR 1962 SC 199, the Court observed that the objection to the local jurisdiction of the Court does not stand on the same footing as WP/6668/2010 a/w ors. : 6 : an objection to the competence of the Court to try a case; the competence of the court to try a case goes to the very root of the jurisdiction. The objection to the local jurisdiction of the Court can be waived. The Division Bench observed that this principle has been given statutory recognition by the enactment of section 21 of the Code of Civil Procedure. 3. In the case of Pathumma Vs. Kuntalan Kutty, 1981 (3) SCC 589, the Supreme Court has held that an objection to the territorial jurisdiction need not be allowed unless it has resulted in failure of justice. The Supreme Court observed that besides raising the objection regarding the territorial jurisdiction at the first instance and at the earliest possible opportunity there must be a consequent failure of justice on account of the matter having been tried by a Court which lacked the territorial jurisdiction. In Harshad Chimanlal Modi v/s. DLF Universal Ltd. & anr., (2005) 7 SCC 791, the Supreme Court has held that an order passed by the Court having no jurisdiction is a nullity. It has also observed that neither consent nor waiver nor acquiescence can confer jurisdiction upon it otherwise incompetent to try the suit. The Court observed that where the Court takes upon itself to exercise jurisdiction that it does not possess, its decision amounts to nullity. 4. The judgment in the case of Workmen of Shri Rangavillas Motors (P) Ltd & anr. (supra) has been cited before the Division Bench in the case of Glaxo Smith Kline (supra) besides several other judgments. The question posed by the Division Bench was as follows: “7. ….Whether the Industrial court and the Labour court under the MRTU & PULP Act have jurisdiction to entertain a complaint solely on the ground that an order allegedly having effect of unfair labour practice is issued from a place WP/6668/2010 a/w ors. : 7 : situated within the territory of the State of Maharashtra even though the effects and/or consequences of such an order are to take place outside the territory of the State of Maharashtra and the person against whom such an order is issued for all purpose is employed in an area situated outside the State of Maharashtra?” 5. Thus, the specific issue which is raised in the present case was before the Division Bench. The Division Bench also considered the judgment of a learned Single Judge (Khandeparkar, J. who was a party to the judgment of the Division Bench) in the case of Mohan R. Mhatre v. Udaipur Distillery Co. Ltd. & Ors., 2003 III CLR 93 in which it was held that the place where the dispute substantially arises or where the parties reside should determine the jurisdiction of the Court to entertain the proceedings. 6. In the present case, it appears that the order of transfer has been issued from Nashik where the administrative office of the Bank is situated. The respondent in his complaint has stated that the Industrial Court in Nashik would have jurisdiction since he resides in Nashik. However, a perusal of the complaint indicates that the respondent is residing in Jalgaon and is in fact working in the bank's branch in Jalgaon. In these circumstances, in view of the Division Bench judgment in the case of Glaxo Smith Kline (supra), the Industrial Court would have no jurisdiction to entertain the dispute. Besides a notification has been issued by the State Government u/s 4 of the MRTU & PULP Act, specifying the local area of the Industrial Court for disputes which arise in that area. Section 4 of the MRTU & PULP Act empowers the State Government to constitute an Industrial Court by issuing a notification. A notification has been issued on 3.9.1999 by the State Government in exercise of its powers u/s 4 specifying the areas over which the Industrial Court WP/6668/2010 a/w ors. : 8 : established would have jurisdiction. The additional Industrial Court, Nashik which had its headquarters at Nashik had jurisdiction over the District Nashik. Similarly, the additional Industrial Court, Jalgaon which has its headquarters at Jalgaon is empowered to decide the matters falling within the jurisdiction of Jalgaon, Dhule and Nadurbar. Therefore, in the light of the judgment in Glaxo Smith Kline Pharmaceuticals Ltd. (supra), the Industrial Court, Nashik would have no jurisdiction to decide a complaint of a person residing in Jalgaon and working in Jalgaon. 7. The petition is allowed. Rule made absolute. No order as to costs.