Bageshwar Maurya vs The Management Naveen Projects ...
2009 Latest Caselaw 2650 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+     LPA 103/2009

      BAGESHWAR MAURYA             .... Appellant
                  Through Mr. Manish Maini, Adv.

                  versus

      THE MANAGEMENT NAVEEN PROJECTS P.LTD.
                                 ....Respondent
                  Through Nemo

      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE MANMOHAN


                         ORDER

%                       16.07.2009


      Respondent is absent despite service.      Affidavit of service

has already been placed on record. Heard learned counsel

appearing for the appellant.

2. The appellant was a workman of the respondent-company. He

was appointed by the respondent as a Foreman/Clerk vide

appointment letter dated 19.8.1997. The respondent-

company's office is situated at New Delhi. The appellant was

posted by the respondent-company at its project site at

Dharnasar in State of Rajasthan from where he was transferred LPA 103/2009 page 1 of 9 to the project site at Karamsana, Rajasthan. The appointment

as well as transfer orders were issued from Delhi Office.

Services of the appellant were terminated vide letter dated

30.12.1999 issued by the respondent company's office at

Delhi. Contending that the said order of termination was

unauthorized, arbitrary and illegal, as no domestic enquiry was

held prior thereto, the appellant raised an industrial dispute.

3. The Government of NCT of Delhi in exercise of its jurisdiction

under Section 10(1)(c) r/w Section 2-A of the Industrial

Disputes Act, 1947 referred the following dispute for its

adjudication to the Labour Court XVIII, Karkardooma Courts,

Delhi.

"Whether the services of Sh. Bageshwar Mariya have been terminated illegally and/or unjustifiably by the management, and if so, to what relief is he entitled and what directions are necessary in this respect?."

4. Before the Labour Court, the respondent-company inter alia

contended that the appellant was not covered within the

definition of workman as provided under the Industrial

Disputes Act as he was performing the duties of

LPA 103/2009 page 2 of 9 administrative/supervisory in nature and drawing wages of

more than Rs.1600/- per month. The reference made by the

Government of NCT of Delhi was also challenged on the

ground that the Government of NCT of Delhi was not the

appropriate Government within the meaning of the Industrial

Disputes Act as the workman was posted in Rajasthan when

his services were terminated.

5. By its Award dated 29.2.2008 the Labour Court opined that the

appellant was a workman within the meaning of Section 2 (s)

of the Industrial Disputes Act. The Labour Court, however,

rejected the reference on the ground that the workman was

posted at respondent's site office at Karamsana, situated in

the State of Rajasthan. The writ petition preferred by the

appellant was dismissed in limine by the learned single Judge.

6. Learned counsel appearing for the appellant contended that

the respondent company had issued the appointment letter,

transfer letters as well as the termination letter from the Delhi

Office. He contended that clause 12 of the appointment letter

also provides that Courts of New Delhi shall have exclusive

jurisdiction over any dispute. He contended that the appellant LPA 103/2009 page 3 of 9 was posted in Rajasthan which was a temporary project site

and as such courts in Rajasthan will not have jurisdiction to

entertain the industrial dispute raised by the appellant.

Therefore, according to him the decision of the Labour Court

on the issue of jurisdiction is wholly erroneous.

7. We find considerable substance in the contentions of learned

counsel. The admitted fact is that the appointment letter was

issued to the appellant/workman from the respondent

company's office at Delhi. The respondent is conducting the

business in Delhi. The orders of transfer to Dhanasar and

thereafter to Karamsana have been issued from Delhi office of

respondent and the order of termination was also issued from

Delhi Office. A substantial part of cause of action has thus

taken place in Delhi. Under the circumstances, it is not

possible to sustain the finding of the Labour Court that the

Government of NCT of Delhi was not the appropriate

Government.

8. We may notice that in Paritosh Kumar Pal v. State of

Bihar, 1984 Lab 1C 1258 (Patna,) a Full Bench of the Patna

High Court held that :-

LPA 103/2009 page 4 of 9 "13. Now an incisive analysis of the aforesaid authoritative enunciation of law would indicate that three clear-cut principles or tests for determining jurisdiction emerge, therefrom. For clarity these may be first separately enumerated as under :

(i) Where does the order of the termination of services 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?

(iii) That the well-known test of jurisdiction of a civil court including the residence of the parties and the subject- matter of the dispute substantially arising therein would be applicable."

9. What would constitute cause of action, has been considered by

the Supreme Court in Om Prakash Srivastava v. Union of

India (2006) 6 SCC 207 wherein it was held :

"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 LPA 103/2009 page 5 of 9 piece of evidence, which is necessary, to prove each fact. comprises in "cause of action". (See Rajasthan High Court Advocates' Association v. Union of India and Ors. 2001 (2) SCC 294).

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, (1977) 1 SCC 791).

14. The expression "cause of action" is generally understood to mean a 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 and Ors. (2000) 7 SCC 640."

10. As pointed out earlier, the appointment letter, transfer order as

well as the termination letter were all issued from Delhi,

LPA 103/2009 page 6 of 9 substantial cause of action has thus arisen within the

jurisdiction of Delhi. Merely because the appellant was posted

in Rajasthan at the time of his termination will not oust the

jurisdiction of Delhi Government to make a reference to the

Labour Court. In this regard, a reference may be made to a

decision of the Supreme Court in Workmen v. Shri

Rangavilas Motors (P) Ltd. AIR 1967 SC 1040. In this case

the workman concerned was engaged as a Foreman. He was

transferred from Bangalore to Krishnagiri. He questioned the

validity of the said order of transfer. The company initiated

disciplinary proceedings against him and he was removed from

service. State of Mysore made a reference. Validity of the said

reference was questioned and the Supreme Court opined that :

"This takes us to the other points. Mr. O. P.

Malhotra strongly urges that the State Government of Mysore was not the appropriate Government to make the reference. He says that although the dispute started at Bangalore, the resolution sponsoring this dispute was passed in Krishnagiri, and, that the proper test to be applied in the case of individual disputes is where the dispute has been sponsored. It seems to us that on the facts of this case it is clear that there was a separate establishment at Bangalore and Mahalingam was working there. There were a number of other workmen working in this place.

LPA 103/2009 page 7 of 9 The order of transfer, it is true, was made in Krishnagiri at the head office, but the order was to operate on a workman working in Bangalore. In our view the High Court was right in holding that the proper question to raise is : where did the dispute arise ? Ordinarily, if there is a separate establishment and the workman is working in that establishment, the dispute would arise at that place. As the High Court observed, 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."

(emphasis supplied)

11. In so far as the present case is concerned, the respondent

company has no separate establishment / office in Rajasthan.

The company is conducting its business from Delhi. Thus the

Government of NCT of Delhi will be the appropriate

Government. Even assuming that a part of cause of action has

also arisen in Rajasthan, as has been held by the Supreme

Court in Bikash Bhushan Ghosh and others v. Novartis

India Ltd., (2007) 5 SCC 591 the fact that other State

Government has also jurisdiction would not mean that the

state government within whose territory a part of cause of

action arose would have no jurisdiction to make the reference.

12. In the light of the above discussion the appeal is allowed. The

LPA 103/2009 page 8 of 9 Award of the Labour Court is set aside. The respondent

company is directed to reinstate the appellant with full back

wages and continuity of service.

                                          CHIEF JUSTICE



                                          MANMOHAN, J
JULY 16, 2009
mm/nm




LPA 103/2009                                            page 9 of 9