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2007 Supreme(SC) 616
S.B. Sinha & Markandey Katju
Bikash Bhushan Ghosh & Ors PETITIONER
versus
M/s. Novartis India Limited & Anr RESPONDENT
Appeal (civil) 2201 of 2007
CIVIL APPEAL NO. 2201 OF 2007 [Arising out of S.L.P. (C) No. 10438 of 2006]
Decided on: 27/04/2007
Important Points
Subject
Labour Law - Industrial Disputes
Act Referred
Headnote
(B) Cause of action is understood as the entire set of facts that gives rise to an enforceable claim - An order of dismissal takes effect upon its communication; therefore, the place of communication of the termination order constitutes a material part of the cause of action.
(C) Territorial jurisdiction - Objections to the place of suing under Section 21 of the Code of Civil Procedure are considered technical. A judgment rendered on merits should not be reversed on such grounds by an appellate court unless it has resulted in a failure of justice.
Facts of the case:
Workmen were transferred to other locations and failed to join the new posts. Consequently, their services were terminated. The termination orders were served to them at their original place of posting. The Industrial Tribunal found the terminations illegal and ordered reinstatement. While a Single Judge of the High Court dismissed the employer's challenge, the Division Bench of the High Court set aside the award, holding that the State where the original posting was located was not the "appropriate Government" because the situs of employment had shifted to the transfer locations.
Findings of Court:
The court found that the communication of the termination orders in the original state, combined with the nexus between the disputed transfer and the subsequent termination, established that the State Government of the original place of posting was the appropriate government to make the reference.
Issues: Whether the State Government of the territory where the termination orders were communicated and where the employees were originally stationed was the "appropriate Government" to make a reference under the Industrial Disputes Act.
Ratio Decidendi: The court ruled that jurisdiction depends on whether a part of the cause of action arises within the territory. Since the termination orders were served at the original location and the termination was a direct result of a disputed transfer, a sufficient nexus existed. Furthermore, under the Code of Civil Procedure, technical objections to territorial jurisdiction cannot be used to nullify a judgment on merits unless there is evidence of prejudice or failure of justice.
Result: Impugned judgment set aside and matter remitted to the High Court for consideration on merit. Appeal allowed.
Legal Category Hierarchy
-
administrative law
-
industrial and labour law
-
industrial dispute
- reference
- appropriate government
-
termination of service
- transfer and termination nexus
-
industrial dispute
-
industrial and labour law
-
practice and procedure
-
jurisdiction
- territorial jurisdiction
-
cause of action
- definition
-
jurisdiction
JUDGMENT:
S.B. SINHA, J.
Leave granted
Appellants were workmen of the Respondent company. They were transferred to Siwan (Bihar), Farrukhabad (U.P.) and Karimganj (Assam) by letters of transfer dated 3.10.1994. According to them, the said orders of transfer were violative of the Memorandum of Undertaking dated 18.12.1989 and were issued with an ill-motive of victimizing them for their trade union activities. As despite requests, the purported orders of transfer were not revoked, they sought intervention of the Labour Commissioner, West Bengal by a letter dated 1.3.1995. Allegedly, a conciliation proceeding was initiated, but during the pendency thereof, their services were terminated by Respondent Company by letters dated 15.4.1995. Contending that the said orders of termination were unauthorized, arbitrary and illegal, as no domestic enquiry was held prior thereto, they raised an industrial dispute.
The State of West Bengal, in exercise of its jurisdiction under Section 10(1)(c) read with Section 2A of the Industrial Disputes Act, 1947 referred the following dispute for its adjudication to the Third Industrial Tribunal, West Bengal. "Whether the termination of service of (1) Shri Bikash Bhusan Ghosh (2) Shri Pradip Kumar Mukherjee and (3) Shri Shyama Charan Mallick is justified? What relief, if any, are they entitled to?"
Before the said Tribunal, inter-alia a contention was raised that the State of West Bengal had no jurisdiction to make the reference. Parties to the reference, however, adduced their respective evidences on merit of the matter.
The question in regard to maintainability of the said reference was determined by the Tribunal in terms of an order dated 30.3.1999 holding the same to be maintainable.
By reason of an Award dated 10.10.2002, the Tribunal opined that the orders of termination passed against the appellants were illegal and they were directed to be re-instated in service with back wages. Aggrieved by and dissatisfied with the said order, Respondent filed a Writ Petition before the Calcutta High Court which was marked as W.P. No. 2495 of 2002.
By a Judgment and Order dated 11.7.2003, the said Writ Petition was dismissed. On an intra-court appeal filed by the Respondents under clause 15 of the Letters Patent of the Calcutta High Court, marked as G.A. No. 3157; a Division Bench of the High Court, however, without going into the merit of the matter held that the State of West Bengal, being not the appropriate Government in respect of the dispute raised by the appellants, had no jurisdiction to make the reference and on that premise allowed the said appeal and consequently set aside the Award made by the Tribunal as also the judgment and order of the learned Single Judge.
Mr. Pradip Ghosh, learned senior counsel appearing on behalf of the appellant, in support of this appeal, inter-alia would submit that the Division Bench of the High Court committed a manifest error in passing the impugned judgment in so far as it proceeded on the basis that no document was brought on records to show that the appellants had raised a dispute in regard to the orders of transfer passed against them which in fact had been done and the same was pending before the conciliation officer. Our attention in this connection has been drawn to a letter dated 23.3.1995 issued by Joint Labour Commissioner, West Bengal to the Personnel Manager of M/s. Sandoz (I) Ltd., pre-decessor of the respondent Company which is in the following terms; "With reference to the above subject, you are requested to kindly make it convenient to see the undersigned in this office on 12.04.1995 at 3.00 p.m. for a discussion with the concerned representatives."
The learned counsel would contend that in the said conciliation proceeding, the respondents did not participate, which was initiated on the basis of a letter dated 1.3.1995 addressed to the Labour Commissioner, Government of West
