Go Airlines (India) Pvt. Ltd. vs Manmohan Sharma & Ors.
2010 Latest Caselaw 4564 Del

*          HIGH COURT OF DELHI : NEW DELHI

+                     WP (C) No.2587/2010

%                     Judgment decided on : 28.09.2010

Go Airlines (India) Pvt. Ltd.                      ......Petitioner
                      Through: Mr. Raghav Avasthi, Adv. with Mr. R.N.
                               Karanjawala, Adv.

                      Versus

Manmohan Sharma & Ors.                         ....Respondents
                Through: Mr. B.V. Niren, Adv. for Respondent No.2.
                         Mr. Manvendra Verma, Adv. with Mr. Bankey
                         Bihari, Adv. for Respondent No.3.

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                     No.

2. To be referred to Reporter or not?                  Yes

3. Whether the judgment should be reported
   in the Digest?                                      Yes

MANMOHAN SINGH, J.

1. The challenge is laid in this petition under article 226/

227 of the Indian Constitution to the order passed by the learned

Labour Commissioner on two preliminary issues vide order dated

8.2.2010. The brief facts of the matter can be enunciated as under:

a) The petitioner Airline Company entered in to an employment

agreement with Mr. Harish Solanki Respondent no. 2

appointing him as a pilot. The said agreement contained all

the clauses determining the terms of the employment of

respondent no. 2 with that of the petitioner.

b) The agreement dated February 8, 2006 also contained a

clause relating to the governing law and choice of forum

which is relevant here and can be reproduced hereunder:

" This agreement shall be governed by and interpreted in accordance with the laws of India and the courts in Mumbai shall have exclusive jurisdiction over any disputes that may arise in connection with this agreement".

c) In the year 2008, the respondent no. 2 sent notice of demand

dated December 12, 2008 calling upon the petitioner to pay

the legitimate dues to the respondent as per the computation

made by him.

d) Pursuant thereto, the respondent no. 2 filed the petition

before Labour Court under section 33 C (2) of the Industrial

Dispute Act, 1947 seeking computation of dues against the

petitioner. The petitioner opposed the said petition by filing

the written statement and raising manifold objections in the

objections of territorial jurisdiction and about maintainability

of the application made by the respondent No.2.

e) The learned Labour Court vide order dated 5.6.2009 framed

the following issues:

"(i) Whether this court has no jurisdiction to entertain this application ? OPM

(ii) Whether this application is not maintainable U/s 33-C(2) I.D. Act ? OPM

(iii) To what relief, if any, is the applicant entitled to receive in terms of money computed on the basis of this application ? OPW

(iv) Relief."

As per order, issue no. (i) and (ii) were treated as

preliminary issues.

f) Vide order dated 8.2.10 the learned labour court disposed of

the two issues by passing the impugned order.

g) The petitioner is now before this court aggrieved by the order

passed by the Labour Court.

2. At the outset, it was observed that the petitioner has

arrayed the Presiding Officer of Labour Court as a party to this

proceedings. This was objected by the learned counsel for the

respondent. On the same being pointed to the learned counsel for

the petitioner, he agreed to the deletion of the name of the learned

Presiding Officer of Labour Court. Accordingly, I deem it

appropriate to delete the name of Mr. Manmohan Sharma from the

array of the parties and the petitioner is directed to file amended

memo of the parties within two weeks of this order.

3. Learned counsel for the petitioner has made his

submissions which can be outlined as follows:

a) Learned counsel submitted that the order passed by

the Labour Court is erroneous as the Labour Court has

assumed jurisdiction which it did not have because of

the admitted contract which confers exclusive

jurisdiction to the Mumbai court. Thus, the same is the

case of wrongly assuming jurisdiction which warrants

the interference by this court.

b) The order of Labour Court was also sought to be

challenged on the ground that the concept of estoppel

against the statute or agreement beyond statute as

employed by the Labour Court was erroneous as there

was no such statute which was bypassed by entering

into agreement and thus the concept has no

applicability in the present case. This according to the

learned counsel is the legal infirmity besides the other

ones.

c) Learned counsel for the petitioner sought to urge that

even the second preliminary issue was wrongly decided

by the Labour Court as the mandate of section 33 C (2)

was not followed. According to the learned counsel the

appropriate government for the present purpose ought

to have been central government and not the state

government. Thus, the case of the respondent was not

maintainable before the Labour Court as it was not a

specified Labour Court by the appropriate government.

d) Learned counsel submitted that the jurisdiction of the

Labour Court is governed by general principles of

certain provisions of the Code of Civil Procedure. It was

argued that even after satisfaction of the provisions of

the Code of Civil Procedure, this court does not have

territorial jurisdiction. The counsel cited the judgment

passed by learned single Judge of Bombay High Court in

Shri Ganpatk. Sanade v. The Managing Director,

Nasik Sahakari Sakhar Karkhana Ltd; 2008(1)

Bom CR 453 to state that the provisions of code of civil

procedure are applicable to the proceedings under

section 33 C(2).

4. Per Contra Learned counsel for the respondent has made

his submissions in support of the impugned order which can be

summarized as under :

a) That the Labour Court has correctly held that this court has

jurisdiction after considering that the respondent has

performed his duties in Delhi after being posted in Delhi, He

received his salary in Delhi. Learned counsel relied upon

clause 4.1.1 to state that the agreement itself states so about

the respondent‟s posting in Delhi. Para 1 of the counter

affidavit filed by the respondent also states the same.

b) Learned counsel for the respondent submitted that the

exclusion clause stated in the agreement does not bind the

Labour Court as the same. To substantiate the same, learned

counsel relied upon the judgment in Rohtas Industries Ltd.

Vs. Brijnandan Pandey; 1956 (II) LLJ 444 which was cited in

the impugned order also.

c) Learned counsel stated that the writ petition is premature in

as much as the order of the Labour Court does not determine

the issue of the jurisdiction and rather the Labour Court has

kept the same pending by arriving at the finding which

records as follows :

"17. From the material on record and the submission made I am of the prima facie view that this court has territorial jurisdiction. However, it cannot be ignored that territorial jurisdiction is a mixed question of law and fact. The parties can establish in evidence the existence or non existence of territorial jurisdiction. In that view of the matter, there is prima facie sufficient material to presume that this court has territorial jurisdiction to proceed with this application. However, the issue is left open and shall be subject to the evidence led by the parties and would be considered at the time of final adjudication. This issue is answered accordingly but not finally disposed of."

The learned counsel thus submitted that the writ petition at

this stage cannot be entertained on the issue which is yet to

be determined.

d) The learned counsel for the respondent also urged before this

court that the issue of the appropriate government cannot be

raised as the same is not raised before the court of first

instance. Thus, this court under article 226 should not

entertain fresh pleas which were not raised earlier.

5. This court has considered the rival contentions of the

parties and shall now proceed to deal with the same. Firstly, it is

seen from the impugned order that the Labour Court has proceeded

to frame issues on 5.6.2009 wherein issue (i) and (ii) were treated

to be preliminary issue.

6. Thereafter the Labour Court proceeded to dispose of the

issues number wise. It is also argued by the respondent itself that

this writ petition should not be entertained as the issue of

jurisdiction has not been adjudicated upon by the Labour Court by

relegating the parties to trial. Order 14 Rule 2 of Code of Civil

Procedure empowers the court to frame preliminary issues.

7. From the reading of Order 14 Rule 2, CPC it is discernible

that the court can try the issue of jurisdiction or the issue relating

to bar created by the law to the suit as preliminary issue and

postpone the settlement of other issue till the time that issue is

determined. The court‟s power to frame preliminary issues is

circumscribed by the discretion which is worded as "may" which

means that the court has a choice while framing an issue either to

treat it as preliminary issue or to treat the issue as an ordinary

issue. Once the said choice is exercised, the court may proceed to

either try the preliminary issue impending the decision of the other

issues or proceed for trial if no preliminary issue is framed

respectively. In the present case, the protest was raised qua

territorial jurisdiction of the court as well as the maintainability of

the proceedings in which the court has chosen to frame it as a

preliminary issue and thereafter proceeding further for adjudication

on these two issues.

8. Once the said option of framing of 2 preliminary issues

was exercised and also the law relating to the jurisdiction had been

discussed by the court, the learned Labour Court should have

decided the two preliminary issues conclusively. This court is of the

opinion that while discussing extensively the law relating to

jurisdiction of the court from para 6 to 16 of the impugned order,

the learned Labour Court ought not to have come to the finding

which is recorded in para 17 that the learned Labour Court is of

prima facie view that this court has territorial jurisdiction and there

after also holding that the jurisdiction is mixed question of fact as

well as law and thus necessitated trial. If that was the conclusion

which the learned Labour Court was about to arrive, then there was

no necessity to frame and treat the issue of the jurisdiction as a

preliminary issue. Thus, the impugned order when it proceeds to

dispose of first preliminary issue and yet does not dispose of the

same completely and rather relegate the parties to trial postponing

its determination along with final adjudication suffers from

procedural irregularity which can be a good ground for interference

under Article 226 of the Indian Constitution.

9. The reference may be invited to the decision in D.P.

Maheshwari v. Delhi Administration and Ors.; (1983) 4 SCC

293 wherein the employer before the Industrial Adjudicator

contended that D.P. Maheshwari was not a workman. The Industrial

Adjudicator decided the said preliminary objection first. The said

decision of the Industrial Adjudicator was carried to the High Court

under Article 226 of the Constitution and thereafter to the Supreme

Court, thereby delaying the decision of the real dispute for years,

as in the present case. The Supreme Court observed that there was

a time when it was thought prudent and wise to decide preliminary

objections first but held that the time has come for a reversal of

that policy. It was laid down that tribunals, particularly those

entrusted with the task of adjudicating labour disputes, where

delay may lead to misery and jeopardize industrial peace, should

decide all issues in dispute at the same time without trying some of

them as preliminary issues.

10. Therefore, ordinarily the approach of the Labour Court

trying labour disputes to treat some issue as preliminary issue and

postponing the main issue is itself depreciated by the courts as

held by the Supreme Court of India in D.P. Maheshwaris case

(Supra). However, in this case the learned Labour Court has gone a

step further while framing some issues as preliminary issues and

proceeding to decide the same and yet not determining it and

directing trial. The said approach thus suffers from procedural

irregularity which is required to be corrected by interference of this

court and requesting the labour to adjudicate all the issues

completely after evidence in order to avoid delay and piece meal

adjudication. Secondly, the learned Labour Court was correct when

it said that the consent cannot confer jurisdiction which the court

otherwise does not possess at the time of examination of issue of

jurisdiction. But the learned Labour Court has subsequently not

applied the said test while examining that whether the Mumbai

court can be one of the courts which can possess jurisdiction and

thereby the same can be chosen by the parties as exclusive court.

11. It is trite law that the consent cannot confer jurisdiction

which the court otherwise does not possess. The same means that

the agreement which tries to confer jurisdiction on the court which

otherwise does not vest is void being against the public policy. On

the other hand, the agreement choosing one of the courts of the

competent jurisdiction as a forum of choice by way of agreement

cannot be termed as against public policy. This view has been

taken consistently from ABC Laminart Pvt. Ltd. and Another

vs. A.P. Agencies, Salem, (1989) 2 SCC 163.

12. The learned Labour Court proceeded to examine the

question by assuming that Mumbai court does not have jurisdiction

which should not be done in the case involving choice of forum. The

jurisdiction of the court has to be evaluated as per the principles

envisaged under the Code of Civil Procedure and on the basis of

cause of action in the matter.

13. What would constitute cause of action, the same has

been considered by the Apex Court in the case of Om Parkash

Srivastava Vs. UOI reported in (2006) 6 SCC 2007 at page

Nos.211-212 in paras 12, 13 and 14 which read as under:

"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 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.)"

14. Thus, the aspects like petitioner‟s registered office at

Mumbai, the petitioner carrying on business in Mumbai, the

agreement signed in Mumbai, the salary was paid from Mumbai

gives some part of cause of action in Mumbai also in addition to

Delhi.

15. The enquiry in these circumstances by the learned

Labour Court if it proposed to examine the issue of jurisdiction

should have been as to whether Delhi or Mumbai courts would

ordinarily have jurisdiction to entertain and try the proceedings and

thereafter it could have examined the question as to whether by

agreement the parties can limit the jurisdiction into one court

having jurisdiction or not. The learned Labour Court did not advert

into these aspects in detail at all. Rather, the learned Labour Court

impliedly excluded Mumbai court at the outset only by stating that

the same would amount to estoppel against the statute. Further,

there were submissions made by the parties regarding the

appropriate government appointing the Labour Court. The said

aspect has not been discussed in the impugned order nor the said

submissions were made before the learned Labour Court. As I find

that there is a case made out for the interference of this court

under article 226 on the ground of procedural irregularity and legal

infirmity, the parties are at liberty to raise these pleas before the

learned labour court which shall determine the issue while deciding

the issue of maintainability.

16. Lastly, With respect to correctness of the issue pertaining

to maintainability, the same shall be examined along with the other

issues which are to be answered by the learned Labour Court.

17. In view of this discussion, the position which emerges is

that the present case is a fit case for exercising the jurisdiction

under Article 226 as the impugned order suffers from procedural

irregularity as well as error of law. Accordingly, this court deems it

fit to quash the order dated 8th February, 2010 passed by the

learned Labour Court and directs the Labour Court to answer all the

issues together in order to avoid any further delay and piece meal

adjudication. The parties are directed to appear before the Labour

Court on 18th October, 2010. The Labour Court is also directed to

make endeavor to decide the issues as expeditiously as possible.

MANMOHAN SINGH, J.

SEPTEMBER 28, 2010 dp