Case: Glaxo Smithkline Pharmaceuticals Limited Vs. Abhay Raj Jain &amp; Another

Appellate Authority. 26. In Patel Roadways case (supra), it was a decision in relation to suit for damages and not relating to labour matter based on the provisions of the Civil Procedure Code. 27. Much reliance was sought to be placed by the learned senior counsel for the respondents on the decision of this Court in Mohan Mhatres case (supra), repeatedly reminding us that the said decision was delivered by one of us (Sri R.M.S. Khandeparkar, J.) holding that the place of issuance of the order of transfer also forms part of the cause of action for initiating action under the MRTU & PULP Act. That was a case wherein after taking into consideration the various earlier decisions of the Apex Court it was held that: "It is 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 the jurisdiction of the Court to entertain the proceedings relating to such dispute." Referring to the facts of that case, it was held that the materials on record nowhere disclosed that the dispute had substantially arisen in any part of Mumbai so as to give jurisdiction to the Industrial Court at Mumbai to entertain the complaint filed by the employee. The appointment of the petitioner at Mumbai was with the hope to commence establishment by the respondent No.1 in the State of Maharashtra. Being so, in the said case, though the employee was at Mumbai, there was no part of the establishment of the company in Mumbai, nor there was any activity on the part of the company in Mumbai. On the contrary, the activities of the respondent-company were yet to commence and, in fact, in order to ascertain the possibility of commencement of such activity of the establishment of the company in Mumbai, that the employee was deputed at Mumbai. In those circumstances, it was held that: "The undisputed facts in the matter, are that the petitioner was employed by the respondent No.1 at Mumbai with the hope that the respondent No.1 would be able to organize its operation in a big way in the State of Maharashtra, but the same has not materialized till this date and as the respondent No.1 has lost the hope to have its operations in the State of Maharashtra, that therefore, the order of transfer of the petitioner was issued and the petitioner has been directed to report to his duties at Delhi. Apart from the petitioners appointment at Mumbai, the respondent No.1 has no establishment as such in Mumbai." In those circumstances, it was also observed that: "Had the respondent No.1 been successful in commencing its operations in the State of Maharashtra, perhaps the position would have been different." Being so, any observation made in the decision in Mohan Mhatres case have to be understood in the facts of that case and having so understood, the decision nowhere helps the respondents in the case in hand. 28. 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. 29. 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 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 Mhatres 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. 30. In the case in hand, undisputedly, the unfair labour practice is alleged to have been employed on account of transfer of the respondent from Udaipur to Imphal and, therefore, it cannot be said that any part of the cause of action in relation to the alleged unfair labour practice had arisen within the territory of the State of Maharashtra. The appellant, therefore, is justified in contending that this aspect of the matter was totally ignored by the Industrial Court as well as by the learned single Judge and hence the impugned orders in that regard cannot be sustained and are liable to be set aside while allowing the appeal.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]At the same time it is apparent that the finding by the learned single Judge, which is, in fact, reiteration of the finding of the Industrial Court on the point in issue, is very clear to the effect that the situs of employment is at Udaipur. Indeed, it is not in dispute that the respondent No.1 had been employed at Udaipur and his area of employment lies beyond the territory of the State of Maharashtra. Being so, there is no dispute on the aspect of situs of employment to be at Udaipur.10. In H.M.T. Limiteds case (supra) it was an admitted position that the workmen was never employed by the company in any of its establishments at Chandigarh and the workmen was last employed at Mumbai. She was transferred from Srinagar to Mumbai. Considering the same, it was held by the PunjabHaryana High Court that substantially the cause of action had arisen at Mumbai. Merely because the order of dismissal was served at Chandigarh, that would not be sufficient to hold that the industrial dispute had substantially arisen within the Union Territory of Chandigarh.In L.B. Repals case (supra) the Division Bench of this Court held that the test of jurisdiction of a Court or Tribunal requires ascertaining where substantially the dispute arose, and not where the employee is employed or dismissed, and such a test can never be inflexible and must necessarily depend on the facts of each case. The underlying approach has to be the test of enforceability of the order. It is the place where the order can be effectively enforced that would satisfy the requirement of jurisdiction to the Court to entertain the complaint. 12. In G.S. Batras case (supra) the learned single Judge of the Delhi High Court held that since the termination of service of the employee was in Delhi while he was being employed at Delhi, the Delhi Court had jurisdiction and the Delhi Government was the appropriate Government within the meaning of the provisions of law comprised under the Industrial Disputes Act, 1947 for the purpose of reference.In Emerald Valley Estates case (supra) the learned single Judge of the Kerala High Court held that in determining which of the States has jurisdiction to make a reference under Section 10 of the Industrial Disputes Act, 1947, what is necessary is that there should clearly be some nexus between the dispute and the territory of the State and not necessarily between the territory of the State and the industry concerning which the dispute arises. It might also be noted that to confer jurisdiction for reference on the State Government concerned, it is not absolutely necessary that the cause of action should wholly or exclusively arise in that State. There may be cases where part of the cause of action may arise in two or more States. In such cases, two or more States may have concurrent jurisdiction. When the question regarding territorial jurisdiction crops up, what is to be asked and answered is whether the cause of action substantially arose in the State, the Government of which referred the dispute for adjudication. In that case, the workmen concerned were all along working in the State of Kerala and they were also residing in the said State. The transfer of the workman was from a place in Kerala to a place in Karnataka State. The dispute on the point of jurisdiction was as to whether it was the Government of Kerala or the Government of Karnataka, which would be the appropriate Government to make the reference. It was clearly held that it would be wrong to construe that because the workman concerned, in pursuance of the notice, went over to the place in Karnataka to join duty, the cause of action had also arisen exclusively or wholly in that place. 15. In S.N.D. Sampaths case (supra) the Division Bench of the Madras High Court held that the Tamil Nadu Shops and Establishments Act is expected to apply to the establishments in the State of Tamil Nadu alone and to the employees employed to work in such establishments. The first respondent was employed in the Goa establishment of the company, an establishment governed by the Goa Shops and Establishments Act and when there were no employer employee relationships subsisting with regard to an establishment situated in the State of Tamil Nadu, the mere fact that the resignation letter was accepted at Chennai would not be sufficient to clothe the Appellate Authority under Section 41(2) of the Tamil Nadu Shops and Establishments Act to entertain the appeal filed by the workman. The order of the learned single Judge in that regard was, therefore, set aside while holding that the relationship of employer and employee with reference to a commercial establishment in Tamil Nadu is afor preferring an appeal under Section 41(2) of the Tamil Nadu Shops and Establishments Act and that when a person is employed to work in the Goa establishment of the company, it must be held that he is employed wholly in connection with the business of Goa establishment and merely because, the Corporate Office of the company is at Chennai or because is resignation letter has been accepted at Chennai, it cannot be held that the Appellate Authority under Section 41(2) of the Act has jurisdiction to entertain the appeal filed by the employee. 16. In Bhandari Builders case (supra) the question was whether a person recruited by an establishment in Delhi and working abroad in Iraq can invoke the provisions of the Delhi Shops and Establishment Act, 1954. It was held that the provisions of the said Act leave no room for doubt that they apply to the establishments located in Delhi and not to any establishment, outside India. It cannot be argued that each office where the business of the company is being run is not a separate establishment for the purpose of legislation like the Delhi Shops Act. Each premises where commercial activity of the nature given in the definition is carried on is to be treated as a separate establishment. The employee was not employed in any establishment in Delhi and, therefore, he was not covered by the said Act. 17. In Kalyan Banerjees case (supra) the Apex Court held that the since the entire cause of action arose within the State of Jharkhand, only because the head office of the company was situated in the State of West Bengal, that by itself would not confer the jurisdiction upon the Calcutta High Court to entertain the petition. That was a case wherein the employee, who was employed at Mugma area in the District of Dhanbad, State of Jharkhan, his services came to be terminated at Mugma but he filed the writ petition in the Calcutta High Court only on the ground that the Corporate Office of the company in which he was working was at Calcutta. 18. In Sri Ranga Vilas Motors case (supra) the workman working at the Bangalore branch office of the company having head office in Krishnagiri, Madras State, was transferred by the order issued from the head office. The order of reference made by the State of Mysore inter alia related to the dispute as to whether the transfer was unjustified and if so, the workman was entitled to reinstatement at Bangalore with benefits ofIt was held that in those facts the dispute arose at Bangalore, where the concerned employee was working at the time of his transfer. It was ruled that there should clearly be some nexus between the dispute and the territory of the State and not necessarily between the territory of the State and the industry concerning which the dispute arose. Theof the dispute having substantially arisen within the jurisdiction of the State of Mysore, the Mysore Government was the appropriate Government to take steps in accordance with the labour laws. 19. In Aeronautics Hindustan Aeronautics case (supra), while dealing with the issue relating to appropriate Government for reference under Section 10 of the Industrial Disputes Act, 1947, it was held that if there is any disturbance to industrial peace, the Government of the State where the disturbance takes place will be the appropriate Government. 20. In Ramlals case (supra) the PunjabHaryana High Court was dealing with a matter wherein there was a challenge to the order of termination, which was passed at Chadigarh and served at Bhatinda. It was held that the order became effective and operative at Bhatinda where the workman was at the material time working and earning his wages. The relationship of Master and servant snapped at Bhatinda. The industrial dispute definitely arose at Bhatinda and consequently the order of reference made by the State Government of Chandigarh was appropriate and it was competent to make a reference. Existence of the head office of the Bank at Chandigarh and the management of the business therefrom does not mean that the Government of Chandigarh is the appropriate Government. 21. In Pritam Singhs case (supra) the PunjabHaryana High Court held that the situs of the employment where the worker was employed and the order of his dismissal from service, suspension or retrenchment is received would determine the appropriate Government competent to make reference and not the head office of the company from where the order is issued. 22. In New Delhi General Mazdoor Unions case (supra) the Delhi High Court held that only on the averment that the registered office of the Management Development Institute is situated in Delhi, would not be sufficient to contend that the Delhi Government was the appropriate Government for the reference of industrial disupte when the materials placed on record disclosed that the entire establishment of the Institute was situated within the State of Haryana. 23. In Paritosh Kumar Pals case (supra) the Full Bench of the Patna High Court held that the provisions of the Civil Procedure Code are not specifically made applicable to the proceedings under the Industrial Disputes Act, 1947 and the situs of employment of the workmen would determine the Tribunals jurisdiction. It laid down, therefore, three tests to determine the jurisdiction of the Tribunal, namely (i) Where does the order of the termination of service operate (ii) Is there some nexus between the industrial dispute arising from termination of the services of the workman and the territory of the State and (iii) That thetest of jurisdiction of a Civil Court including the residence of the parties and theof the dispute substantially arising therein would be applicable.24. In R.K. Jhas case (supra) the Patna High Court was dealing with a case wherein two medical representatives of the company were visited with the penalty of termination of their services, when they allgedly failed to join their new places of posting on transfer and consequently they filed complaints under Section 26 of the Bihar Shops and Establishments Act, 1953 before the Labour Court, Patna, which was dismissed on the ground of lack of territorial jurisdiction to entertain the complaint. Allowing the writ petition, it was held that in view of the admitted position that the employees were working within the jurisdiction of the Patna Depot of the company from where their services were terminated, the cause of action wholly arose within the jurisdiction of the Labour Court, Patna but even assuming that the petitioners were actually working at Laheriasarai, at least part of the cause of action arose at Patna in view of the fact that Laheriasarai was within the jurisdiction of the Patna Depot. 25. In Kusum IngotsAlloyss case (supra) the Apex Court was dealing with the issue as to whether the seat of Parliament or the legislature of a State would be a relevant factor for determining the territorial jurisdiction of a High Court to entertain a writ petition under Article 226 of the Constitution of India. It was held that when an order is passed by a Court or Tribunal or an executive authority whether under the provisions of a statute or otherwise, a part of cause of action arises at that place. The order of the Appellate Authority constitutes a part of cause of action and, therefore, writ petition would be maintainable in the High Court within whose jurisdiction it is situated having regard to the fact that the order of the Appellate Authority is also required to be set aside and as the order of the original authority merges with that of the Appellate Authority. 26. In Patel Roadways case (supra), it was a decision in relation to suit for damages and not relating to labour matter based on the provisions of the Civil Procedure Code.28. 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. 29. 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 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 Mhatres 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. 30. In the case in hand, undisputedly, the unfair labour practice is alleged to have been employed on account of transfer of the respondent from Udaipur to Imphal and, therefore, it cannot be said that any part of the cause of action in relation to the alleged unfair labour practice had arisen within the territory of the State of Maharashtra. The appellant, therefore, is justified in contending that this aspect of the matter was totally ignored by the Industrial Court as well as by the learned single Judge and hence the impugned orders in that regard cannot be sustained and are liable to be set aside while allowing the appeal.