Telangana High Court

Godrej Agrovet Limited, vs The Presiding Officer, And Ano., on 1 February, 2024

Author: Nagesh Bheemapaka

Bench: Nagesh Bheemapaka

       HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

             WRIT PETITION No. 25331 OF 2009

ORDER:

Petitioner seeks to restrain / prohibit the 1st

respondent ie. the Presiding Officer, Labour Court-I, Hyderabad

from proceeding with I.D. No. 51 of 2009 filed by the 2nd

respondent under Section 2-A (2) of the Industrial Disputes Act,

1947 (for short, 'the Act').

2. Petitioner is a company incorporated under the

Companies Act, 1956 and is engaged, inter alia, in the business

of manufacture and sale of animal feed, with registered office at

Mumbai. Originally, the 2nd respondent was appointed as

Stores Clerk by Lipton India Limited which got amalgamated

with Brooke Bond India Limited, which later got amalgamated

with another company called Hindustan Lever Limited presently

called as 'Hindustan Unilever Limited'. He was from time to

time, got promoted as Accounts Executive in the Executive

cadre and was transferred to Kolakata on 08.04.2009 and he

accordingly, proceeded to Kolkata. It is the case of petitioner

that even prior to the above transfer, the 2nd respondent had

also been empowered by a power of attorney dated 25.02.2005

by Gold Mohur Foods & Feeds Limited which clearly evidences

that he was employed in a fairly responsible managerial positon,

thus rendering him to be not a 'workman' within the meaning of

Section 2(s) of the Act. Thereafter, his services were terminated

vide letter dated 10.08.2009. Questioning the said order,

petitioner, who was employed at the relevant point of time, at

Kolkata, filed the subject I.D. before the 1st respondent who has

no jurisdiction. Hence, petitioner is constrained to approach

this Court. According to petitioner, even in the petition filed by

the 2nd respondent, he stated that he was associated with the

respondent company in the capacity of executive.

3. Learned counsel for petitioner Sri C.R. Sridharan

submits that the 1st respondent lacks jurisdiction. It is

submitted that admittedly, the 2nd respondent had been

working in the capacity of Executive cadre but not as a

workman. He got transferred to Kolkata and left for Kolkata

from where he was asked to report at Khurda in Orissa and the

order of termination evidently advises him that his account

would be settled by Kolkata office. Termination of services had

taken place when petitioner was employed at Kolkata after his

transfer and therefore, no part of cause of action arises even

remotely within the territorial jurisdiction of the 1st respondent

and clearly the impugned proceedings are outside the scope and

ambit of Section 2-A as well as 2-A(2) of the Act, stresses the

learned counsel. According to the learned counsel, enquiry

before the Labour Court / Industrial Tribunal as contemplated

under Section 2-A shall be limited to the validity of termination,

discharge, dismissal or retrenchment of a 'workman' by his

employer and the scope of such enquiry / jurisdiction cannot be

enlarged at all, so as to decide the broader questions of

termination of services of a non-workman while he was

employed last at Kolkata. Learned counsel relied on the

judgment in S.Padmanabhan v. Industrial Tribunal-II 1.

When the impugned proceedings are demonstrably without

jurisdiction, any further proceedings before the 1st respondent

would consequently, be without jurisdiction and petitioner

would not be obliged to participate any further in the impugned

proceedings nor can it be bound by any eventual order made by

the 1st respondent. Learned counsel further relied on the

judgment of a Division Bench of this Court in D. Samba

Murthy v. Collector, East Godavari 2 to contend that when an

inferior court takes up for hearing a matter over which it has no

jurisdiction, the remedy is by way of prohibition seeking an

order forbidding the inferior court from continuing the

proceedings. On the other hand, if the Court hears the cause or

2009(2) ALT 65

1979(2) An.W.R. 86

matter and gives a decision, the party aggrieved would have to

move the superior Court for a writ of certiorari quashing the

decision. He further argues that writ of prohibition may be

issued as its object is to restrain courts or inferior tribunals

from exercising jurisdiction which they do not possess at all or

else to prevent them exceeding the limits of jurisdiction.

4. Heard learned Government Pleader for Labour on

behalf of the 1st respondent and Sri G. Sai Prasen, learned

counsel for the 2nd respondent.

5. The point for consideration in this Writ Petition is

whether the 1st respondent has jurisdiction to entertain the

subject dispute.

6. The prime grievance of petitioner is, the 1st

respondent is totally without jurisdiction, however, continues to

exercise jurisdiction in a dispute raised by the 2nd respondent

who, admittedly, is not only an employee in the capacity of an

executive cadre but also got transferred to Kolkata at which

place he reported to duty.

7. In the context of the argument put-forth by learned

counsel for petitioner as regards the 2nd petitioner is an

employee in the capacity of an executive cadre, hence, will not

come under the definition of 'workman', it is expedient to go

through the provision of Section 2-A(2) of the Act, as amended

and inserted by the State of Andhra Pradesh vide Act No. 32 of

1987 with effect from 27.07.1987. It, unequivocally, provides

that 'notwithstanding anything contained in Section 10, any such

workman as is specified in sub-section (1) may, make an

application in the prescribed manner direct to the Labour Court

for adjudication of the dispute referred to therein; and on receipt

of such application the Labour Court shall have jurisdiction to

adjudicate upon any matter in the dispute, as if it were a dispute

referred to or pending before it, in accordance with the provisions

of this Act; and accordingly, all the provisions of the Act, shall

apply in relation to such dispute as they apply in relation to any

other industrial dispute'. Even the main provision of Section 2-A,

which is part and parcel of central legislation vis. Industrial

Disputes Act, 1947, also reads 'where any employer discharges,

dismisses, retrenches or otherwise terminates the services of an

individual workman, any dispute or difference between that

workman and his employer connected with, or arising out of,

such discharge, dismissal retrenchment or termination shall be

deemed to be an industrial dispute notwithstanding that no other

workman nor any union of workmen is a party to the dispute.'

G.O.Ms.No. 30, Labour, Employment, Nutrition and Technical

Education (Lab.IV), dated 27.01.1996 issued by the Government

of Andhra Pradesh, in exercise of powers under Section 7(1),

7-A(1) of the Act read with sub-section (2) thereof, provides for

territorial jurisdiction in respect of Labour Courts / Industrial

Tribunals. Item No.4 thereof sets out the areas / territories

falling within the jurisdiction of Labour Court, Hyderabad-I for

adjudication of disputes arising in those areas. Any dispute

relating to discharge, dismissal, termination or retrenchment of

a workman by the employer arising in any of the areas set out

in Item No.4 of the said G.O. alone would be capable of being

adjudicated by the Labour Court. The Scheme of the Act,

particularly Section 2-A, pre-supposes two important conditions

precedent for maintainability of a Petition under Section 2-A;

they are a) the person invoking the said Section should be a

'workman' within the meaning of the Act; and b) his discharge,

termination, dismissal or retrenchment should have arisen

within the area prescribed under the said G.O.

8. Workman is defined under Section 2(s) which

means 'any person employed in any industry to do any manual,

unskilled, skilled, technical, operational, clerical or supervisory

work for hire or reward, whether the terms of employment be

expressed or implied and for the purpose of any proceeding under

this Act in relation to an industrial dispute includes any such

person who has been dismissed, discharged or retrenched in

connection with or as a consequence of that dispute or whose

dismissal, discharge or retrenchment has led to that dispute, but

does not include any such person who is employed mainly in a

managerial or administrative capacity and who being employed

in a supervisory capacity, draws wages exceeding ten thousand

upper per mensem or exercises, either by nature of duties

attached to the office or by reason of the powers vested in him,

functions mainly of a managerial nature.'

9. Admittedly, petitioner was, though appointed as

Stores Clerk initially, from time to time, he was promoted to the

post of Accounts Executive in the executive cadre, which will

not come under the definition of 'workman'. The definition itself

provided some exceptions and the Accounts Executive will come

under that exception. Hence, the first ground taken by

petitioner merits consideration.

10. So far as jurisdiction aspect is concerned, the 2nd

respondent was transferred to Kolkata where his services were

terminated, hence, according to petitioner, the 1st respondent

has no jurisdiction to entertain the dispute. This Court in

S. Padmanabhan's case, confirming the views of the learned

Single Judge in Siemens Ltd. V. Presiding Officer, Addl.

Industrial Tribunal-Addl. Labour Court, Hyderabad (2002(6)

ALT 446) has stated the law thus:

" In view of the above discussion and having considered the conflicting judgments and the ratio laid down in the decisions of the Apex Court, we answer the reference as follows:

(1) The territorial jurisdiction to entertain the ID, has to be decided on the basis of the place where the workman is working and the adverse order is operating and ID has to be raised before the Labour Court / Industrial Tribunal having jurisdiction over that place but not at the place of Head Office of a company or its registered office is located. (2) The provisions of Section 20 of Code of Civil Procedure would be taken as guiding factor, where the provisions of Industrial Disputes Act, 1947 in order to determine the point of jurisdiction, would give rise to divergent views;

(3) The cause of action shall be deemed to have arisen at the place where the workman had been discharging the duties, received termination / dismissal order and where such order operates."

11. In Siemens Limited's case, this Court very clearly

held that once a 'workman' has been transferred from one place

to another, he ceased to be an employee in the establishment

from where he was transferred and he becomes an employee of

the place to which he has been transferred and therefore, such

an employee cannot be permitted to raise an industrial dispute

before the Labour Court in whose jurisdiction the office from

where he was transferred as against the termination. It is only

the Labour Court within whose jurisdiction the office to which

he has been transferred alone would have jurisdiction in such

matters. The Hon'ble Supreme Court of India in East India

Commercial Company v. Collector of Customs 3 observed that

'to state it differently, if on a true construction of the provisions of

the said two sections, the respondent has no jurisdiction to

initiate proceedings or make an enquiry under the said sections

in respect of certain acts alleged to have been done by the

appellants, the respondent can certainly be prohibited from

proceeding with the same.' Following the above ruling, the

Division Bench of this Court in D. Samba Murthy's case held

as under:

" When an inferior Court takes up for hearing a matter over which has no jurisdiction, the remedy is by way of prohibition seeking an order forbidding the inferior court from continuing the proceedings. On the other hand, if the Court hears the cause or matter and gives a decision, the party aggrieved would have to move the superior Court for a writ of certiorari quashing the decision. From these observations, it is clear that the Supreme Court entertained no doubt about the power of the High Court to issue a writ of prohibition or certiorari to an inferior Court. In Golad Menon v. Union of India the Supreme Court observed that the object of writ of prohibition is to restrain Courts or inferior Tribunals from exercising a jurisdiction which they do not possess at all or else to prevent them exceeding the limits of the jurisdiction. In other words, the object is to confine the Courts or Tribunals of inferior or limited jurisdiction within their bounds."

12. In view of the law laid down, as extracted supra,

this Court can safely conclude that the 1st respondent has no

jurisdiction to entertain the Industrial Dispute raised by the 2nd

respondent. Further, the letter of appointment dated

AIR 1962 SC 1893

19.05.1993 issued to the 2nd respondent itself provided for

transfer of his services vide clause 4 which reads as under:

" You shall ordinarily be required to work at our unit at Hyderabad and are liable to be transferred to any other unit / office of the company or our associate and / or subsidiary company situated anywhere in the Union of India as required by the exigencies of our business, at the discretion of the company. Within the unit your services may be utilized in / transferred to any department / section depending upon the exigencies of work."

Pursuant to the said clause, the 2nd respondent was

transferred to Kolkata and the same was communicated in the

form of e-mails / letters dated 08.08.2009, 06.08.2009,

23.07.2009 and 23.07.2009 respectively exchanged between the

2nd respondent and his superiors stationed at Kolkata and the

termination order issued by Mumbai Office very clearly

indicated the 2nd respondent was employed at relevant point of

time at Kolkata and his account would be settled by Kolkata

Office after checking the commitments. Hence, the contention of

the 2nd respondent in the Industrial Dispute that it is the

general policy of the company that staff cadre employees will not

be posted other than the native places, but the company all of a