Buddhadev Maity And Anr. vs Union Of India And Ors.
2011 Latest Caselaw 4654 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI

#10
                                  W. P. (C) 6856/2011

        BUDDHADEV MAITY AND ANR                 ..... Petitioners
                   Through: Mr. R. K. Saini with Mr. Sanjoy
                            Ghose and Mr. Sitab Ali
                            Chaudhary, Advocates.

                         versus


        UNION OF INDIA AND ORS                 ..... Respondents
                      Through: Mr. Himanshu Bajaj, CGSC with
                               Mr. Karan Bindra, Advocate for
                               R-1 to 3.
                               Mr. V. N. Kaura with Mr. Shirish
                               Kumar, Advocates for R-4 & 5.

        CORAM: JUSTICE S. MURALIDHAR

          1.    Whether Reporters of local papers may be
                allowed to see the order?                        No
          2.     To be referred to the Reporter or not?          Yes
          3.     Whether the order should be reported in Digest? Yes

                                     ORDER

21.09.2011

1. The present writ petition was listed first on 20th September 2011.

Learned counsel for the Petitioners was asked to address the Court on the

question of maintainability of the writ petition particularly in light of the

judgment of Five Judge Bench of this Court dated 1st August 2011 in

Sterling Agro Industries Limited v. Union of India 181 (2011) DLT 658.

2. Mr. R. K. Saini, learned counsel for the Petitioner submits that the

prayer in this writ petition is for a direction to the Chief Labour

Commissioner (Central) ('CLC') to take a decision on the Petitioners'

representation regarding payment of wages to contract labour, like the

Petitioners, on par with the regularly employed workmen performing the

same work in the Respondent Indian Oil Corporation ('IOC') at its Haldia

Oil Refinery Plant in West Bengal. Referring to Rule 25 (2) (v) (a) of the

Contract Labour Regulation and Abolition (Central) Rules, 1971, Mr.

Saini points out that the decision in this regard has to be taken only by the

CLC who is located in Delhi. It is submitted that the failure of the CLC

to reply even to the legal notice issued on behalf of the Petitioners to him

on 10th August 2011 provides a cause of action for this Court to entertain

the writ petition. It is further submitted that in terms of the judgment of

Five Judge Bench of this Court in Sterling Agro Industries Limited v.

Union of India, this Court has to only examine whether it is convenient

for all the parties for it to entertain the writ petition. It is submitted that

in as much as the Petitioners, who are admittedly residing in Midanpore

in West Bengal, have subjected themselves to inconvenience by

approaching this Court for relief, and are not going to complain of such

inconvenience, and further since the Respondents are also not going to

suffer inconvenience in defending the writ petition, the present writ

petition ought to be entertained. Mr. Saini draws the attention to the

observations of the Supreme Court in Alchemist Ltd. v. State Bank of

Sikkim (2007) 11 SCC 235.

3. The question whether the High Court should entertain a writ petition

only because the authority against whom the relief is sought is located

within its territorial jurisdiction has come up for decision on a number of

occasions before the Supreme Court. Illustratively reference may be

made to the decision in Kusum Ingots & Alloys Ltd. v. Union of India

(2004) 6 SCC 254. In para 30 of the said decision, it was stated: "We

must, however, remind ourselves that even if a small part of cause of

action arises within the territorial jurisdiction of the High Court, the same

by itself may not be considered to be a determinative factor compelling

the High Court to decide the matter on merit. In appropriate cases, the

Court may refuse to exercise its discretionary jurisdiction by invoking the

doctrine of forum conveniens".

4. Taking note of the above decision as well as the decision of the

Supreme Court in Alchemist Ltd. v. State Bank of Sikkim, the Five Judge

Bench of this Court in Sterling Agro Industries Limited v. Union of

India in para 33 of the judgment observed that it was not willing to

accept the earlier decision of a Bench of three Judges of this Court in

New India Assurance Company Ltd. v. Union of India AIR 2010 Delhi

43 (FB), to the effect that this Court "cannot decline to entertain the writ

petition" so long as the tribunal/appellate authority/revisional authority

whose decision is challenged is situated within the jurisdiction of this

Court. It was observed in para 33 (f) of the decision in Sterling Agro

Industries Limited that "while entertaining a writ petition, the doctrine

of forum conveniens and the nature of cause of action are required to be

scrutinized by the High Court depending upon the factual matrix of each

case in view of what has been stated in Ambica Industries v.

Commissioner of Central Excise 2007 (213) ELT SC 323 and Union of

India v. Adani Exports Ltd. (2002) 1 SCC 567."

5. Mr. Saini does not dispute the fact that as a result of the decision in

Sterling Agro Industries Limited, this Court is under no compulsion to

entertain the writ petition. He, however, submits that since a small part of

the cause of action arises within the jurisdiction of this Court, discretion

should be exercised by this Court to entertain the writ petition.

6. Admittedly, no decision has yet been taken by the CLC on the

application filed by the Petitioners. It is, therefore, not even clear

whether any cause of action has yet arisen within the jurisdiction of this

Court. Be that as it may, the mere fact that the CLC is located in Delhi

does not necessitate this Court having to entertain the writ petition. The

Petitioners are in West Bengal and their place of work is also in West

Bengal. The question concerns payment of wages to them at their place

of work. The procedure involved in the decision to be taken by the CLC

requires verification of facts by a Deputy Labour Commissioner

functioning in West Bengal. He is expected to make a field visit to

ascertain the facts. All these factors are relevant in ascertaining the

„cause of action‟ for the present petition. Lastly, it is not as if the High

Court of Kolkata, if approached with a writ petition, cannot issue

directions to the CLC. Article 226 (2) of the Constitution is intended for

such contingency.

7. As regards convenience of parties, the question is not merely of one of

the parties not complaining about its inconvenience in appearing before

this Court. The question is one of principle. If more than one Court were

to entertain writ petitions on the same set of facts it would, apart from a

possibility of inviting conflicting orders, also encourage forum shopping.

From the point of view of litigants, there has to be certainty on which

High Court can entertain a writ petition, given the facts and

circumstances of a case. The decision of the Five Judge Bench of this

Court in Sterling Agro Industries Limited was intended to bring about

that certainty.

8. This Court is accordingly not inclined to entertain this writ petition. It

would of course be open to the Petitioners to approach the appropriate

forum for relief. Nothing stated in this order is to be construed to be an

expression of opinion on merits.

9. The writ petition is dismissed.

S. MURALIDHAR, J

SEPTEMBER 21, 2011 ha