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Gujarat High Court
Judgename :M.S.Shah, H.N.Devani
MOHAN V.PEDNEKAR - Appellant
Versus
EXECUTIVE DIRECTOR (H.R.),Indian OIL CORPORATION LTD. - Respondent
C. A. 5298 Of 2006
Decided On : 05/03/2006
Penalty of reduction of basic pay - Imposed by Authorities at Bombay - Service of order effected at Ahmedabad - Where delinquent transferred from Bombay - Challenge to - Jurisdiction - Finding of.
Head Note :
Letters Patent Appeal - Clause 15 - Penalty of reduction of basic pay - Imposed by Authorities at Bombay - Service of order effected at Ahmedabad - Where delinquent transferred from Bombay - Challenge to - Jurisdiction - Finding of - In the facts admittedly order of penalty as well as the order of appellate authority were passed at Bombay but were served upon delinquent appellant by a subordinate officer of respondent in the State of Gujarat where he was transferred by respondent - Thus accordingly civil consequence on the appellant would also fall within the State of Gujarat - A part of cause of action as such arose within the State of Gujarat - It is, therefore, open to appellant who is the dominus litis to have his forum convenient - Refusing to entertain the present petition on ground that the respondents are in Mumbai and compelling the appellant to go to Mumbai from where the respondent employer has already transferred him to Gujarat would neither be just nor fair when appellant has been successfully able to invoke factors in his favour for exercise of territorial jurisdiction by the Court - Court, therefore, set aside the order of learned Single Judge and remit the matter back to him for hearing and deciding the petition on merits.
Held :
Court has no doubt that the territorial jurisdiction to entertain the petition of the employee who came to be transferred to Gujarat in May 2005 and the order of penalty as well as the order of appellate authority were subsequently served upon him in the State of Gujarat and a subordinate officer of the Indian Oil Corporation posted in the State of Gujarat will be implementing the impugned orders in the State of Gujarat for reduction in pay of the appellant and thus the civil consequences on the petitioner would also fall within that State of Gujarat. In the overall facts and circumstances of the case, Court is of the view that a part of cause of action having arisen within the State of Gujarat, it is open to the appellant, who is the dominus litis to have his forum conveniens. Refusing to entertain the present petition on the ground that the respondents are in Mumbai and compelling the appellant to go to Mumbai from where the respondent-employer has already transferred him to Gujarat would neither be just nor fair when the appellant has been successfully able to invoke the other two factors in his favour for exercise of territorial jurisdiction by this Court. [Para 14]
Court allowed the appeal and set aside the order of the learned Single Judge and remit the matter back to the learned Single Judge for hearing and deciding the petition on merits.
[Para 15]
Law Laid Down :
Where cause of action arises within one or the other High Court it is for the petitioner to choose his forum as convenient.
Case Law Analysis :
State of Punjab vs. Amar Singh, AIR 1966 SC 1313 [Para 10];; Modern Food Industries (India) Ltd., Ahmedabad vs. M.D. Juvekar, 1988 (1) GLH 481 [Para 5];; Alka Synthetics vs. SEBI, 1997 (3) GCD 88 (Guj) [Para 5];; SEBI vs. Alka Synthetics, 1999 (1) GLR 275 [Para 5];; Kusum Ingots & Alloys Ltd. vs. Union of India, 2004 (6) SCC 254 [Para 8.2];; Union of India vs. P. Kunhabdulla, 1985 (1) LLJ 331 [Para 10];; Umashankar Chatterjee vs. Union of India & Ors. 1982 Lab. IC 1361 [Para 10];; Secretary, Home Department, Government of Maharashtra vs. Bansidhar & Ors., 1982 (2) SLR 475 [Para 10].-Relied on
Union of India vs. Adani Exprots, AIR 2002 SC 126 [Para 4].-Referred as Reversed
Conclusion :
Court does have territorial jurisdiction to entertain the petition of employee who came to be transferred to Gujarat and order of penalty was served on him in State of Gujarat where civil consequence of the order would follow.
Cases Referred :
Union of India vs. Adani Exports Ltd., AIR 2002 SC 126 = 2002 (1) SCC 567;; Lt. Col. Khajoor Singh vs. Union of India, AIR 1961 SC 532;; National Textile Corporation Ltd. vs. Haribox Swalram, 2004 (9) SCC 786;; Aligarh Muslim University vs. Vinay Engg. Enterprises (P) Ltd., 1994 (4) SCC 710;; ONGC vs. Utpal Kumar Basu, 1994 (4) SCC 711.
Decided in Favour of :
Appellant
Appeal Allowed
( 1 ) ADMIT. With the consent of the learned Counsel for the parties, the appeal is taken up for final disposal today.
( 2 ) THIS appeal is directed against the order dated 28-4-2006 by which the learned single Judge dismissed the writ petition of the appellant herein (challenging the order of penalty in a departmental proceedings) as not maintainable on the ground of want of territorial jurisdiction of this Court.
( 3 ) THE appellant (hereinafter referred to as "the petitioner") is an employee of the Indian Oil Corporation Ltd. , the respondent-company with its Head office at Mumbai and was serving at the relevant time at Mumbai where the alleged misconduct took place. When the charge-sheet dated 1-12-2003 was issued by respondent No. 2 (the disciplinary authority at Mumbai), the petitioner was rendering his services at Mumbai. After the departmental inquiry was concluded by the Inquiry Officer, but before the disciplinary authority passed the order of penalty, the petitioner came to be transferred to Ahmedabad in may, 2005. Ultimately, the disciplinary authority, respondent No. 2 herein, general Manager (HR) of the respondent-company at Mumbai passed the penalty order dated 29-9-2005 inflicting upon the petitioner the penalty of reduction of basic pay by three stages as a measure of disciplinary action against the petitioner. The penalty order dated 29-9-2005 (Annexure-H) was addressed to the petitioner as under :-"shri M. V. Pednekar, emp No. 10350 am (HR), gujarat SO. " the penalty order also informed the petitioner that appeal against this order of penalty lies before Executive Director (HR) at Mumbai (respondent No. 1 herein ). The petitioner accordingly submitted from Ahmedabad his appeal memo to respondent No. 1 at Mumbai on 3-12-2005. It appears that the petitioner sought the hearing before the appellate authority, but the appellate authority did not give any personal hearing and rejected the appeal by his order dated 25-1-2005 in the following terms :-
"having applied my mind to the facts and circumstances of the case as brought out on records, I find that Shri M. V. Pednekar has not brought out any new fact or circumstances in his appeal dated 3-12-2005 which may warrant any change in the said Final Order passed by the Competent disciplinary Authority. As such, I hereby reject the appeal of Shri M. V. Pednekar. "
The said order of the appellate authority came to be communicated to the petitioner by letter dated 28-2-2006 of Mr. S. P. Sinha, Sr. Manager (ER)-WR at the same Ahmedabad address of the petitioner. The petitioner filed the petition challenging the said order of penalty, as confirmed in appeal, by filing special Civil Application No. 5039 of 2006 before the learned single Judge of this Court.
( 4 ) BEFORE the learned single Judge, the respondents raised a preliminary contention about want of territorial jurisdiction of this Court on the ground that both the disciplinary authority as well as the appellate authority were at Mumbai and that the misconduct in question had also taken place at Mumbai, that the territorial jurisdiction could not be conferred on this Court merely because the petitioner happened to be in the State of Gujarat while filing the petition. Relying on the decision of the Apex Court in Union of India v. Adani exports, AIR 2002 SC 126, the learned single Judge upheld the preliminary objection and accordingly dismissed the petition. Hence, this appeal. We have accordingly heard the learned Counsel for the parties only on the limited question of maintainability of the petition in the context of the preliminary objection about want of territorial jurisdiction of this Court.
( 5 ) MR. Bhushan Oza, learned Counsel for the appellant has submitted that the observations made by the Apex Court in the case of Adani Exports (supra)would not apply to the present case or any other similar service matter because in case of a business person or a company, whether its registered office or Hea
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