R. Muthuswamy vs The Management Of M/S Bhor ...
2014 Latest Caselaw 6850 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of decision: 16th December, 2014.

+                                W.P.(C) No.8886/2004

       R. MUTHUSWAMY                                       ..... Petitioner
                  Through:                Mr. V. Sudeer & Mr. Alvin Abraham,
                                          Advs.

                                       Versus

    THE MANAGEMENT OF M/S BHOR
    INDUSTRIES LTD.                    ..... Respondent
                  Through: None.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.     This petition under Article 226 of the Constitution of India impugns

the Award dated 26th May, 2003 of the Labour Court-II, Karkardooma

Courts, Delhi in I.D. No.684/1997 on the following reference:


         "Whether the action of the management in discharging Sh. R.
         Muthuswamy from service is illegal and / or unjustified and if
         so, to what relief is he entitled and what directions are
         necessary in this respect."

and answering against the petitioner / workman only on the ground of the

Labour Court at Delhi having no territorial jurisdiction to entertain the

reference for the reason that the petitioner / workman was working with the


W.P.(C) No.8886/2004                                                Page 1 of 8
 respondent at its office at Pune, Maharashtra when his services were

terminated and the registered office of the respondent being also not at

Delhi.


2.       Notice of the petition was issued and the pleadings were completed.

Rule was issued in the petition on 25th August, 2006. On 8th September,

2009, the counsel for the respondent sought adjournment for taking

instructions from his client for remanding the case back to the Labour Court

for decision on merits. However on the next date, it was informed that the

respondent was not ready therefor. The counsel for the respondent stopped

appearing with effect from 20th July, 2010 and none appeared for the

respondent thereafter on 14th March, 2011, 26th August, 2011, 12th January,

2012 and 18th January, 2012, when after hearing the counsel for the

petitioner / workman, judgment was reserved. Vide judgment dated 23rd

July, 2012, without expressing any opinion on the aspect of territorial

jurisdiction, the matter was sent back to the Labour Court with a direction to

give findings on the other issues on the basis of evidence already adduced.


3.       The Labour Court in compliance of the aforesaid direction,

pronounced another Award dated 22nd December, 2012 holding that the


W.P.(C) No.8886/2004                                               Page 2 of 8
 action of the respondent in discharging the petitioner / workman from the

service is illegal and / or unjustified and, finding the petitioner / workman to

have already reached the age of superannuation, has granted the relief of

payment to the petitioner / workman by the respondent of 50% of the salary

from the date of the illegal termination at the rate at which the petitioner /

workman was getting salary immediately before termination of his services

or the minimum wages, whichever is higher, till the date of his

superannuation. The petitioner / workman has also been awarded all retiral

benefits as per rules applicable to workmen, as if there was no break in his

service. The respondent has also been directed to pay Rs.50,000/- to the

petitioner / workman as exemplary costs.      On enquiry the counsel for the

petitioner / workman informs that the date of birth of the petitioner /

workman is 16th October, 1947.


4.     I may notice that the respondent had failed to lead any evidence

despite opportunity in the first round before the Labour Court and the

counsel for the respondent, though is recorded to have appeared before the

Labour Court in the second round culminating in the Award dated 22 nd

December, 2012 but is further recorded to have not addressed any arguments

or filed written arguments despite opportunity.

W.P.(C) No.8886/2004                                                 Page 3 of 8
 5.      Upon receipt of the Award dated 22nd December, 2012 in this Court,

court notice was again ordered to be issued to the respondent as well as its

counsel. The respondent was in order dated 12th February, 2014 recorded to

have been served. Still none appeared for the respondent. I have heard the

counsel for the petitioner / workman.


6.      The counsel for the petitioner / workman on enquiry states that the

respondent has not preferred any challenge to the Award dated 22 nd

December, 2012, though against it. The petitioner also has not challenged

the same.


7.      From the aforesaid narrative, it is obvious that the only question for

adjudication is whether the finding of the Labour Court in the Award dated

26th May, 2003 that it had no territorial jurisdiction, is liable to be interfered

with.


8.      The counsel for the petitioner / workman has argued, i) that the

petitioner / workman was initially appointed as a Typist / Clerk at the Delhi

branch office of M/s Kamlakshi Finance Corporation Ltd. on the terms and

conditions contained in the appointment letter dated 15 th February, 1985 and

served at Delhi; ii) that the respondent is a sister concern of the said M/s


W.P.(C) No.8886/2004                                                   Page 4 of 8
 Kamlakshi Finance Corporation Ltd. and in the year 1995, the services of

the petitioner / workman were transferred to the respondent and an

appointment letter dated 25th April, 1995 was issued to the petitioner /

workman by the respondent; iii) that as per the said appointment letter, the

petitioner / workman was appointed as a Commercial Officer with

headquarter at Delhi's office of the respondent; iv) that however on 9th /14th

October, 1995, the services of the petitioner / workman were transferred to

Pune and were terminated vide letter dated 10th April, 1996.


       It is argued that the transfer of the petitioner / workman to Pune was

mala fide, intended only to terminate the services of the petitioner /

workman at Pune where the petitioner / workman could not litigate, having

always been a resident of Delhi. It is also contended that since as per the

appointment letter issued by the respondent also, the headquarter of the

petitioner / workman is at Delhi and which continued to be so

notwithstanding the transfer of the petitioner / workman to Pune, the Labour

Court at Delhi had jurisdiction.


9.     I am of the opinion that the Award dated 26th May, 2003 answering

the reference against the petitioner / workman, only on the ground of the


W.P.(C) No.8886/2004                                               Page 5 of 8
 Labour Court at Delhi having no territorial jurisdiction, is liable to be set

aside on the sole ground that the Labour Court did not have the jurisdiction

to go into the said question.       The Labour Court was dealing with the

reference (supra) made to it by the Secretary (Lab.) of the Government of

National Capital Territory of Delhi vide Notification No.F.24(2886)/97-

Lab./28533-37 dated 3rd September, 1997.        I have in Raj Kumar Jaiswal

Vs. Rangi International Pvt. Ltd. MANU/DE/2859/2009 and in Mahipal

Singh        Vs.       Presiding     Officer,       Industrial       Tribunal-III

MANU/DE/1408/2010 and against both of which no appeal is found to have

been preferred, held that, a) a Labour Court / Industrial Tribunal being the

creation of a statute, its jurisdiction is on the basis of reference made to it; b)

it cannot go into the question of the validity of the reference; c) it has no

jurisdiction to strike down the reference; d) that the remedy of any party

which contends that the Government making the reference is not the

appropriate Government territorially, is by way of challenge to the reference.

It was held that the Labour Court to whom a dispute has been referred is not

entitled to take a plea that it lacked jurisdiction and to refuse the adjudication

referred to it on that ground.




W.P.(C) No.8886/2004                                                    Page 6 of 8
 10.    The counsel for the petitioner / workman on enquiry, whether any

challenge to the reference was made, replies in the negative.


11.    The Award dated 26th May, 2003 of the Labour Court deciding the

reference against the petitioner / workman is thus liable to be set aside /

quashed.


12.    The Labour Court has vide Award dated 22nd December, 2012

otherwise answered the reference in favour of the petitioner / workman.

There is no challenge thereto. The counsel for the petitioner / workman on

enquiry states that though the appointment letter describes the petitioner /

workman as Commercial Officer but the petitioner / workman was not

performing any managerial tasks and continued to work as before under the

earlier appointment letter.


13.    Accordingly, the petition succeeds. The Award dated 26th May, 2003

(supra) is set aside and quashed. Needless to state that the petitioner /

workman shall be entitled to enforce the subsequent award dated 22 nd

December, 2012.


14.    The respondent having played hide and seek with this Court, is also

burdened with costs of Rs.20,000/- of this proceeding.

W.P.(C) No.8886/2004                                              Page 7 of 8
 15.     The Labour Court Record which was received in this Court be sent

back.



                                           RAJIV SAHAI ENDLAW, J.

DECEMBER 16, 2014 'gsr'..