JUDGMENT
Gita Mittal, J.
Page 2049
1. The effect of an order of transfer on the situs of appointment of the workman for the purposes of determination of the territorial jurisdiction of the appropriate Government exercising jurisdiction under the Industrial Disputes Act to entertain a complaint arising from the termination of services of an employee for not obeying such order of transfer and remaining absent from the place of transfer is the question raised by the petitioner in the instant case.
2. There is no dispute to the factual matrix. The petitioner No. 1 is admittedly a company which is based in Kanpur and had appointed the respondent No. 3 as a Receptionist-cum-Telephone Operator in terms of letter of appointment dated 17th December, 1992. This letter of appointment inter alia contained the following stipulations:
5. You will be posted in NEW DELHI but your job is transferable anywhere in India.
6. You may be transferred to any of our group companies on the same terms and conditions.
8. Terms & Conditions-As per Annexure B
3. Annexure B to the letter set out in detail the duties and responsibilities and other terms and conditions which the respondent No. 3 was required to accept and include inter alia the following:
b) The Management may transfer you for work in any section/department/project site/division/office/ sister concern, any where in India. Whether existed or started later on as it may consider necessary at its discretion from time to time without detriment to your status and emoluments.
4. The respondent No. 3 accepted these terms and conditions and accepted the terms of the letter of appointment and the terms and the conditions thereof and submitted her acceptance on 24th December, 1992 in the following terms:
ACCEPTANCE:
I have read and understood the above terms and condition of employment and hereby signify my acceptance of the same.
Page 2050
There is no dispute that the petitioner was posted at Delhi and that her terms of appointment stipulated that she could be posted anywhere in India.
5. The petitioner has contended that on account of exigencies of service vide letter dated 5th July, 2000 her services were transferred from Delhi office to the registered office situated at D-3/A, Panki Industrial Estate, Kanpur with immediate effect. This letter of 5th July, 2000 informed the respondent No. 3 that-
You are hereby relieved from Delhi Office with immediate effect and requested to report for your duties to Lt. Col. M.S. Bisht, Administrative Manager at our Regd. Office at Kanpur latest by 15th July 2000.
You will be paid a sum of Rs. 1000/- (Rs. One Thousand only) per month as Special Allowance from the date you resume your duties at Kanpur, which shall be withdrawn immediately when you are re-transferred to Delhi.
We shall also reimburse you shifting expenses for shifting of your house-hold goods, including transit expenses on yourself and your children from Delhi to Kanpur subject to maximum one month’s Basic Salary. You can also draw an advance of Rs. 3000/- for your shifting expenses for which you will have to submit detailed expenses to Lt. Col. M.S. Bisht.
All other terms & conditions of your appointment, as stipulated in your letter of appointment, shall remain unchanged. Please subscribe your signature on duplicate copy of this transfer order and return to us for our records.
6. Vide letters dated 21st July, 2000, 25th August, 2000 and 4th September, 2000, the respondent No. 3 informed the petitioners of her inability to join at Kanpur. Emphasis has been led on behalf of the petitioners to the fact that the order of transfer dated 5th July, 2000 was issued from Kanpur and that all representations were addressed by the respondent No. 3 to the Head Office at Kanpur. The petitioners extended the time given to the respondent No. 3 to join up to 24th July, 2000 vide letter dated 15th July, 2000. However the respondent No. 3 informed the petitioners that her husband was employed at Delhi in a non-transferable job and she had three children studying in Delhi. Consequently she was unable to join at Kanpur and could not maintain two establishments on account of financial constraints. In her communication dated 21st July, 2000 the respondent No. 3, after requesting the petitioner to accommodate her at Delhi, wrote thus:
In case it is not possible to accommodate me at Delhi Office, I would request you that a suitable compensation may please be paid to me so that I can meet the expenses of studies etc., of my children.
7. The petitioners rejected the respondent’s request vide letter dated 27th July, 2000 notifying her that having regard to the financial constraints she could draw advance of Rs. 5,000/- instead of Rs. 3,000/- towards her shifting expenses. A reminder was issued to the respondent No. 3 on 19th August, 2000 informing the respondent No. 3 that she had neither reported for duty at Kanpur and had also not made any request for any leave and was absent from duty with effect from 24th July, 2000. She was notified that she should immediately comply with the directions given in the transfer letter dated Page 2051 5th July, 2000 failing which necessary disciplinary action would be taken against her. A cheque purported to be towards her salary for the month of July, 2000 was enclosed. This letter and cheque was sent from Kanpur to the respondent No. 3. The respondent No. 3 however did not comply with the order of transfer and in these circumstances she was given a last opportunity vide letter dated 31st August, 2000 for complying with the order of transfer and reporting for duty latest by 7th September, 2000. The respondent No. 3 still did not comply and alleged that the transfer order was mala fide and intended to get rid of her services and not on account of exigencies of work.
8. In these circumstances, the petitioner issued a charge sheet dated 21st September, 2000 from Kanpur levelling the following charges against the respondent No. 3:
1. That you were transferred from Delhi to Kanpur vide transfer order dt. 05/07/2000 and were directed to report for duty at Kanpur by 24th July, 2000 and later on at your request by 7th September, 2000.
2. That instead of obeying reasonable order of the superiors which were strictly in accordance with the terms & conditions of appointment letter dt. 17/12/1992 duly accepted by you, you have deliberately failed to comply with the orders which amounts to deliberate disobedience of orders.
3. That you have thus started absenting yourself from your duties w.e.f. 7th September, 2000 and have also shown your complete dis-indication to report for duty at Kanpur. You are thus loosing your salary on the one hand and have also invited disciplinary action on the other hand.
9. The respondent No. 3 sent a reply dated 27th September, 2000 to the charge sheet at Kanpur. Finding the same as unsatisfactory the petitioner initiated disciplinary proceedings against respondent No. 3 at Kanpur and appointed an inquiry officer in this behalf on 12th October, 2000. The date of inquiry was set as 23rd October, 2000 and the respondent No. 3 was notified in this behalf by a registered letter. On this date of hearing one Shri O.P. Tiwari appeared as the authorised representative of the respondent No. 3 and filed the authority letter. However thereafter respondent No. 3 did not appear either personally or through her representative. Information of the next date of hearing which was fixed for 1st November, 2000 was sent by the registered letter dated 24th October, 2000. Still no appearance was put in despite service. Again despite a registered letter dated 13th November, 2000 intimating the next date of hearing and grant of final opportunity to her, the respondent No. 3 did not appear in the matter. The respondent No. 3 however sent a letter dated 10th November, 2000 informing the inquiry officer that the inquiry at Kanpur was illegal and without jurisdiction.
In these circumstances ex-parte proceedings were taken against the respondent No. 3 which culminated in an inquiry report dated 26th December, 2000 whereby the inquiry officer held that the charge of absentism and disobedience of orders of the petitioner stood proved by it and she was guilty of all the charges with which she had been charged.
The inquiry officer sent a copy of the inquiry report to the respondent No. 3 vide a registered letter dated 27th December, 2000.
Page 2052
10. After consideration of the inquiry report the management concurred with the findings of the inquiry officer and decided to dismiss the respondent No. 3 from service with immediate effect. Vide letter dated 11th January, 2001 the respondent No. 3 was informed of the decision of the petitioner and a cheque towards full and final payment of her dues was enclosed therewith.
11. The respondent No. 3 at this stage sent a demand notice to the petitioner endorsing copies thereof the office of the labour officer and the Conciliation Officer at Karam Pura, New Delhi against the order of dismissal.
12. This was replied to by the petitioner vide letter dated 28th March, 2001. The respondent No. 3 thereafter approached the office of the conciliation officer making a complaint against her dismissal seeking reinstatement in service at Delhi will full back wages and continuity of service. The petitioner had objected to the very maintainability of the conciliation proceedings at Delhi on grounds of want of jurisdiction of the labour authorities at Delhi apart from disputing the merits of the complaint made by respondent No. 3. However despite the objections raised by the petitioner the conciliation officer proceeded in the matter and submitted a report to the respondent No. 1. The respondent No. 1 in complete disregard of the objections raised by the petitioner issued an order of reference bearing No. F24(4589)/2001 dated 1st April, 2002 whereby it referred the dispute raised by the respondent No. 3 for adjudication to the labour court. The order of reference was in the following terms:
Whether dismissal from services of Smt. Bimla Sharma, w/o Sh. M.L. Sharma is illegal and/or unjustified and if so, to what sum of money as monetary relief along with consequential benefits in terms of existing laws/Govt. Notifications and to what other relief is she entitled and what directions are necessary in this respect?
13. Aggrieved by this order of reference the petitioner immediately make a representation dated 17th May, 2002 to the respondent No. 1 seeking a reconsideration of the order of reference. However the respondent No. 1 vide its letter dated 31st July, 2002 informed the petitioner that since the matter has already been referred to the labour court for adjudication, it would need to make the submissions in terms of its objections before the labour court.
14. Pursuant to the order of reference, it is pointed out that the dispute raised by the respondent No. 3 has been registered as ID No. 10/02 by the labour court and notice had been issued to the petitioner for appearance on 15th November, 2002.
15. Aggrieved by the order of reference dated 1st of April, 2002 and the refusal of the respondent No. 3 to consider the objections of the petitioner communicated by the letter dated 31st July, 2002 and the issuance of notice by the labour court, the petitioner has filed the present writ petition assailing the legality and validity of the same before this Court.
The petitioner has challenged the very jurisdiction of the respondent No. 1 to entertain the complaint made by the respondent No. 3 on the ground of territorial jurisdiction on the ground that the letter of appointment which was issued to the respondent No. 3 permitted it to transfer the respondent Page 2053 No. 3 anywhere in India and on transfer of her services to Kanpur having been effected the respondent No. 1 had no jurisdiction to entertain a dispute raised at her instance. The other limb of the petitioners’ challenge is based on the stipulation contained in the letter of appointment which clearly provided that the courts at Kanpur would have jurisdiction in case of any dispute between the parties.
16. The petitioner has contended that on the passing of the order of transfer, which was in terms of the letter of appointment accepted by the respondent No. 3, the situs of respondent No. 3’s employment changed from Delhi to Kanpur. The respondent No. 3 did not challenge the order of transfer and did not seek any industrial adjudication thereon. She refused to join at the place of transfer and disobeyed the directions of the petitioner. The charge sheet against alleged absentism and disobedience on the part of the respondent No. 3 which were also not challenged by her. She permitted the disciplinary proceedings to go on and it is only after the order of dismissal was issued from the Kanpur that respondent No. 3 raised grievance at Delhi. It is contended that the situs of her employment had changed to Kanpur and that nothing has happened at Delhi except the receipt of the orders of dismissal by the respondent No. 3 at Delhi. According to the learned Counsel for the petitioner this sole fact is wholly insufficient to clothe the Government of NCT of Delhi with the necessary jurisdiction to entertain a complaint and the grievance of the respondent No. 3 or to pass an order of reference thereon.
17. In this behalf reliance is placed on the pronouncement of the Full Bench of the High Court of judicature at Patna reported at 1985(33) BLJR 150 Paritosh Kumar Pal v. State of Bihar; the Division Bench pronouncement of the Calcutta High Court in Indian Express Newspaper(Bombay) Pvt. Ltd. v. State of West Bengal 2005 LLR 594; and a Single Bench decision of the High Court of Andhra Pradesh in Siemens Limited v. Presiding Officer Additional Industrial Tribunal-cum-Additional Labour Court, Hyderabad 2003 LLR 116.
18. On the other hand the learned Counsel for the respondent No. 3 has vehemently contended that three tests have been laid down by the Apex Court in order to establish the nexus of the dispute with the place where the reference or adjudication is sought. In the instant case the respondent No. 3 resided at Delhi and was admittedly employed at Delhi where she worked throughout her service. The order of transfer was served at the respondent No. 3 at Delhi where also the order of dismissal was served upon her.
19. Placing reliance on the pronouncement of the Apex Court in Workmen of Sri Rangavilas Motors(P) Ltd. v. Sri Ranga Vilas Motors (P) Ltd. , it is contended by Shri Anshul Raj, Advocate for respondent No. 3 that the Apex Court in this case had held that the place where from the employee was transferred would have jurisdiction to entertain a dispute raised at the instance of the employee. Learned counsel for the respondent has also cited 1962(1)LLJ 409 between Indian Cable Company Limited v. Its Workmen in support of his contention that the respondent No. 1 was the competent Page 2054 government to pass the order of reference and that the adjudication was maintainable at Delhi.
It has further been submitted that the Industrial Disputes Act 1947 is a social welfare legislation and does not provide any territorial limits for exercise of the of the powers by the authorities and for this reason alone no fault can be found in the order of reference.
20. So far as the stand of the respondent No. 1 is concerned, it is pointed out that the respondent No. 3 had given her address as that of Delhi. The address given of the petitioner was also the address of his Delhi office and it had also been stated that the respondent No. 3 had been working in Delhi. In these circumstances the respondent No. 1 was of the view that it was the appropriate Government for the purpose of disputes between the parties in the Industrial Disputes Act 1947 as the workman had been employed at Delhi.
21. Having heard the learned Counsel for the parties and perused the available record, I find that there is no dispute that the letter of appointment stipulated that the respondent No. 3 could be transferred anywhere in India. The respondent No. 3 had agreed to the condition that she can be transferred to any of the group companies of the petitioner and had accepted the terms and conditions knowing the implications thereof. It has been pointed out that the prior to her employment with the petitioner the respondent No. 3 had rendered service with M/s Kelvinator of India Limited in their office located in Faridabad, Haryana. Therefore the order of transfer dated 5th July, 2000 cannot be challenged on any ground that the petitioner did not have the authority to transfer her service.
22. It is noteworthy that no industrial adjudication was sought by respondent No. 3 when the petitioner issued the order of transfer directing that her services stood transferred and she stood relieved forthwith. She made a polite request for consideration of the difficulties with which she was faced with regard to her family circumstances in giving effect to the order of transfer and requested the petitioner to accommodate her at Delhi. The respondent No. 3 was aware that it may not be possible to accommodate her at Delhi and consequently in her letter dated 21st July, 2000 had requested the petitioner that in case it was not possible for the petitioner to accommodate her at Delhi she may be paid suitable compensation. This was clearly not accepted by the petitioner which, after giving her opportunity to comply with its directions, issued a charge sheet for her unauthorised absence and a refusal to obey the orders of transfer. It is the order of dismissal dated 11th January, 2001 issued from Kanpur which has been complained of by the respondent No. 3.
23. It would be necessary to consider the judgments relied upon by the respondent No. 3 first in support of its contentions. The respondent No. 3 has primarily urged a contention that the Industrial Disputes Act does not deal with the situs of occurrence of the cause of action as conferring territorial jurisdiction and that the statute does not indicate any factors which would confer or restrict territorial jurisdiction of the appropriate Government or the industrial adjudicator.
Page 2055
24. In 1962(1)LLJ 409 between Indian Cable Company Limited v. Its Workmen, the Court held that the Industrial Disputes Act 1947 contained no provision bearing on the question of the territorial jurisdiction of the appropriate Government and that such a question must consequently be decided on principles governing the jurisdiction of courts to entertain actions or proceedings. The court cited with approval the decision of the Bombay High Court rendered in Lalbhai Tricumlal Mills v. Vin(D.M) and Ors. 1956(1) LLJ 557 at page 558 wherein the High Court had held that the Act did not deal with the cause of action nor did it indicate what factors will confer jurisdiction upon the court and consequently the well known tests of a jurisdiction would require to be complied with to which the court or tribunal would have jurisdiction in the matter.
25. In Workmen of Shri Ranga Vilas Motors(P) Ltd. Vs. Sri Rangavilas Motors(P) Ltd. and Ors. 1967 SC 1040 an employee had challenged his order of transfer from Bangalore in Karnataka to Krishna Giri in Tamilnadu as being illegal for the reason that the conditions of service did not permit such a transfer. Ultimately the management had framed charges against the employee and removed him from service. The employee challenged the order of transfer as well as order of his dismissal. The dispute raised by the workman was referred for adjudication by the labour authorities at Bangalore for adjudication to the labour court which was also located at Bangalore in the following terms :
1. Whether the order of the management of Sri Rangavilas Motors(Private) Ltd., in transferring the workman Sri R.Mahalingam, Foreman, from their branch at Fort, Bangalore, to Krishnagiri, is illegal or unjustified. If so, is the workman entitled to reinstatement in Bangalore Branch with benefits of back wages or to any other relief.
26. In this case the Apex Court held thus:
(14) Therefore, the appeal must succeed unless the company can satisfy us that the points decided against it should have been decided in its favor. 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. 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 Page 2056 the State and not necessarily between the territory of the State and the industry concerning which the dispute arose. This Court in Indian Cable Co. Ltd. v. Its Workmen, (1962) 1 Lab LJ 409 (SC) held as follows:
The Act contained no provisions bearing on this question, which must, consequently, be decided on the principles governing the jurisdiction of Courts to entertain actions or proceedings. Dealing with a similar question under the provisions of the Bombay Industrial Relations Act, 1946, Chagla, C.J. Observed in Lalbhai Tricumlal Mills Ltd. v. Vin. :
But what we are concerned with to decide is: where did the dispute substantially arise? Now, the Act does not deal with the cause of action, nor does it indicate what factors will confer jurisdiction upon the labour Court. But applying the well-known tests of jurisdiction, a Court or Tribunal would have jurisdiction if the parties reside within jurisdiction or if the subject-matter of the dispute substantially arises within jurisdiction.
In our opinion, those principles are applicable for deciding which of the State has jurisdiction to make a reference under Section 10 of the Act.
Applying the above principles to the facts of this case it is quite clear that the subject matter of the dispute in this case substantially arose within the jurisdiction of the Mysore Government.
16. Mr. Malhotra urges that the finding of the Labour Court that the transfer was illegal was perverse. It is not necessary to go into this question because once it is held that there is an agreement between the company and Mahalingam that he could not be transferred from Bangalore, the transfer would be bad. The Labour Court had observed that one of the terms of agreement was that the company had agreed not to transfer Mahalingam to any place out of Bangalore for a period of ten years; the company had transferred Mahalingam from Bangalore to the Head Office at Krishnagiri and this action of the company was in contravention of the terms of the agreement.
27. Learned counsel for the petitioner has submitted that the Apex Court had occasion to consider a challenge to an order of transfer in its pronouncement in the case entitled Workmen of Shri Ranga Vilas Motors(P) Ltd. v. Sri Rangavilas Motors(P) Ltd. and Ors. and had arrived at a conclusion that the appellant had established a nexus between the dispute and the territory of the dispute where the same was raised and that in this case the Government of Mysore which exercised the jurisdiction over Bangalore, from where the appellant had been transferred, had jurisdiction in the matter. It has been urged by the learned Counsel for the petitioner that this case is clearly distinguishable from the instant case on a bare reading of the facts and that the principles laid down in this case would have no applicability to the instant case.
Page 2057
It is well settled that judicial precedents cannot be relied upon without a consideration of the factual matrix of the case in hand vis–vis the fact situation on which the judicial precedent cited before it is passed. In this behalf it would be appropriate to advert to the observations of the Apex Court in Haryana Financial Corporation and Anr. v. Jagdamba Oil Mills and Anr. wherein the court held thus:
19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid’s theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton 1951 AC 737 at P. 761, Lord Mac Dermot observed:
The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge.
In Home Office v. Dorset Yacht Co. 1970 (2) AII ER 294 Lord Reid said, ‘Lord Atkin’s speech…is not to be treated as if it was a statute definition. It will require qualification in new circumstances.’ Megarry, J. in (1971) 1 WLR 1062 observed: ‘One must not, of course, construe even a reserved judgment of even Russell L.J. as if it were an Act of Parliament.’ And, in Herrington v. British Parliament Board (1972) 2 WLR 537 Lord Morris said:
There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case.
Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
20. The following words of Lord Denning in the matter of applying precedents have become locus classicks:
Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Page 2058 Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.
xxxx xxxx xxxx
Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.
28. In the Ranga Vilas Motors case supra, the workman had actually challenged the order of transfer.
29. In this case before the Apex Court the court did not have occasion to consider the effect of an order of transfer which is not obeyed by an employee without making any challenge thereto which is the issue raised in the present case. In this view of the matter, there is material variance in the fact situation which was before the Supreme Court and the present case. The impugned order of reference in this case also refers the issue of the legality of the order of dismissal alone for adjudication. Consequently, in my view, the judgment rendered by the Supreme Court in Ranga Vilas Motors (supra) would not have any application.
I find that this issue arose for consideration before the Division Bench of the Calcutta High court in Indian Express Newspaper(Bombay) Pvt. Ltd. v. State of West Bengal 2005 LLR 594 wherein it was held by the Division Bench that upon passing of an order of transfer the situs of employment of the employee changes to the place of transfer. In this case an employee of the Indian Express Newspaper(Bombay) Pvt. Ltd. was transferred from Calcutta to Bombay. Without joining at the place of transfer, the employee raised a dispute at Calcutta and the issue which arose before the High Court was as to whether the West Bengal Government was the appropriate Government to make an order of reference under Section 10 of the Industrial Disputes Act.
In similar facts as the instant case, the employee in this case also contended that the West Bengal Government would be the appropriate Government in view of the fact that he was based at Calcutta and that the order of transfer and order of termination of his service was served at Calcutta.
30. After detailed consideration of the entire law on the subject the court observed thus:
37. We have carefully considered to submissions made on behalf of the respective parties and the law regarding jurisdiction which has been considered in various cases both from the view point of the Industrial Disputes Act and the Constitution of India. As was observed by the Hon’ble Supreme Court in the Ranga Vilas case (vide supra), jurisdiction would have to be decided not only on the basis of the situs of employment, that is, where the dispute arises and the effects thereof are felt, but also on the interconnected question relating to cause of action. The question of control of an employee came up for consideration in the Lipton case (vide supra), relied upon Sri Mitra, but as pointed out by Sri Oil Mohammed, appearing for the State, the said matter was decided on the Page 2059 sole question of control and did not take into consideration either the question relating to situs of employment or cause of action. The aforesaid contention was considered by the Full Bench of the Patna High Court in the case of Paritosh Kumar Pal 1984 (2) LLN 617, (vide supra), in which while placing reliance on the Ranga Vilas case it was observed that the ratio of the Lipton case is confined to the point that the Tribunal where the Head office is situated would have jurisdiction to take cognizance of an industrial dispute but not for the converse that situs of employment would also have the same effect. In fact, it was also observed with reference to the decision of the Hon’ble Supreme Court in the case of Indian Cable Company, reported in 1962 LLJ 409, that the Industrial Disputes Act does not contain any provision bearing on the question of cause of action, which must, consequently, be decided on the principles governing the jurisdiction of Courts to entertain actions or proceedings.’
40. The basis of the findings of the learned Single Judge in the first writ application and that of the Tribunal thereafter on remand and the subsequent findings of the learned Single Judge on the second writ application is that when Sri Sampat’s services were terminated he was stationed in the Calcutta office of the newspaper company. While Sri Sampat was no doubt served with the order of termination of his service in Calcutta, we are constrained to say that the same would not vest the State Government in West Bengal with authority under Section 2(a)(ii) of the Industrial Disputes Act to make a reference under Section 10 of the said Act. Firstly, at the said point of time the Calcutta office of the newspaper company no longer had control over Sri Sampat whose services had been transferred to Bombay and it was the Bombay office which had control over his services. That Sri Sampat was in Calcutta and was served with the notice of the order of termination of his service in Calcutta is only because of the fact that he had chosen not to comply with the order of transfer, dated 1 August, 1988, by which he had been transferred to Bombay with effect from 5 August, 1988, and had not also challenged the same before any forum. Sri Sampat may have made representations to the Bombay office with regard to such order of transfer, but the same was never the subject-matter of any judicial or quasi-judicial proceeding and it is only after he was served with the order of termination of his service that Sri Sampat raised a dispute in respect thereof. In our view, notwithstanding the fact that Sri Sampat had been served with such order in Calcutta, his situs of employment being Bombay, he ought to have raised an industrial dispute relating to the termination of his services in Bombay and the Government of Maharashtra would have been the appropriate Government to make a reference under Section 10 of the aforesaid Act in respect of such dispute.
42. Cause of action is basically a concept within the meaning of the Code of Civil Procedure as also Article 226 of the Constitution of India. As was pointed out in Umasankar Chatterjee case, 1982 (2) LLN 7531 (vide supra), the order of removal undoubtedly gave rise to a cause of action for the appellant therein to institute an action for the establishment of his right to be in service. The impugned order of removal having become effective Page 2060 in Calcutta where it was received by the appellants a part of the cause of action must be held to have arisen in Calcutta within the jurisdiction of this Court. As was pointed out by Sri Mitra, Umasankar Chatterjee case was one under Article 226 of the Constitution and Clause (ii) of Article 226 was under consideration in the said case. The position under the Industrial Disputes Act is a little different and cause of action will have to be related to either the theory of ‘control’ or the theory relating to ‘situs of employment.’ In view of the facts disclosed in the instant case, not only control but also situs of employment as far as Sri Sampat’s service is concerned was in Bombay. Two of the main tests in deciding jurisdiction, in our view, indicate that the State of Maharashtra and not the State of West Bengal would have been the appropriate Government before whom Sri Sampat should have raised the dispute with regard to the termination of his services. We are unable to agree with the views expressed either by the learned Tribunal or the two learned Single Judges while disposing of the two writ petitions, being W.P. No. 116 of 1998 and W.P. No. 228 of 2001. In our view, the State of West Bengal was not the appropriate Government to make the reference on the dispute raised by Sri Sampat and the same was without jurisdiction.
31. In Siemens Limited v. Presiding Officer Additional Industrial Tribunal-cum-Additional Labour Court, Hyderabad 2003 LLR 116 the High Court of Andhra Pradesh also had occasion to consider an issue relating to the jurisdiction of the Government. In this case the transferability was one of the conditions of service of the employee. The employer had its Head Office in Chennai and Branches at Hyderabad and other places. The employee who was located at Hyderabad was transferred to Manipal in Karnataka. The transfer order indicated that the services of the workman stand transferred to the Manipal office. The workman refused to go to the place of transfer and tried to attend his office at Hyderabad whereupon the management informed him that he had seized to have any link with the Hyderabad office on the notified date. The workman still did not join duty pursuant to his order of transfer, whereupon the management issued a show cause notice as to why disciplinary action should not be taken against him. This employee also, as in the instant case, did not participate in the inquiry despite it being adjourned from time to time. The enquiry therefore was proceeded ex-parte at the Bangalore office where the workman was supposed to report for duty. The disciplinary authority passed the order of termination which was served upon the petitioner. The petitioner raised the dispute before the labour court aggrieved by the order of termination wherein the issue arose as to the maintainability of the industrial dispute before the labour court to whom it stood referred.
32. The labour court ultimately held that it had jurisdiction to entertain the dispute which finding was assailed before the Andhra Pradesh High Court. Placing reliance on the pronouncement of the Full Bench of the Patna High Court in Paritosh Kumar Pal’s case(supra), the court observed thus:
36. In my considered view, by virtue of the transfer orders dated 9-9-1994 and the subsequent letter dated 6-10-1994, wherein it was mentioned that the workman ceased to be an employee at Hyderabad, his situs of employment becomes the office of Manipal. Page 2061 Therefore, as contended by the counsel for the management, just because the workman stayed illegally at Hyderabad without proceeding to Manipal or just because he was pursuing legal remedies at Hyderabad, it cannot validate the illegal stay of the workman at Hyderabad and confer the jurisdiction on the Courts in Andhra Pradesh.
37. The other contention of the workman is that the question of disobedience would arise only when the transfer order is lawful and that by transfer his service conditions and other emoluments were affected. Admittedly transferability was one of the service conditions. Except contending that the transfer is illegal and his service conditions and emoluments are affected, no relevant material is produced by the workman. Therefore, in my view this is a vague contention and merits only for rejecting.
33. Further the court distinguished the Sri Rangavilas Motors(P) Ltd. case(supra) in para 39 of the judgment noticing that transferability was one of the conditions of service in the case before the Andhra Pradesh High Court while the challenge before the Apex Court in the Sri Ranga Vilas Motors (P) Ltd. case was to the order of transfer on the ground of want of authority to transfer.
34. The High Court in these circumstances further noticed as follows:
36. In my considered view, by virtue of the transfer orders dated 19-9-1994 and the subsequent letter dated 6-10-1994, wherein it was mentioned that the workman ceased to be an employee at Hyderabad, his situs of employment becomes the office at Manipal. Therefore, as contended by the counsel for the management, just because the workman stayed illegally at Hyderabad without proceeding to Manipal or just because he was pursuing legal remedies at Hyderabad, it cannot validate the illegal stay of the workman at Hyderabad and confer the jurisdiction on the Courts in Andhra Pradesh.
37. The other contention of the workman hat the question of disobedience would arise only when the transfer order is lawful and that by transfer his service conditions and other emoluments were affected. Admittedly transferability was one of the service conditions. Except contending that the transfer is illegal and his service conditions and emoluments are affected, no relevant material is produced by the workman. Therefore, in my view this is a vague contention and merits only for rejecting.
40. But coming to the case on hand, transferability was one of the conditions of service. Therefore, transferring the workman from one place to other is not violative of the terms and conditions and therefore, the contention of the workman that transfer itself was illegal cannot be countenanced and also the law laid down by the Supreme Court in Rangavilas case (cited 1 supra) cannot be applied on all fours, even though the same is unexceptionable. To put it more precisely his dispute before the Industrial Tribunal is mainly against the termination and incidentally the orders of transfer were challenged.
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41. From the above it is clear that the workman committed misconduct in not joining at the new station. Further I one again reiterate that I am in full agreement with the Full Bench judgment of the Patna High Court and hold that the situs of employment would become paramount in raising the industrial dispute. Since the situs of the employment of the workman was at Manipal with effect from 3-10-1994, as indicated in the order of transfer dated 19-9-1994 and notice dated 6-10-1994 and the same was treated as misconduct, by the office at Bangalore.
42. In other words he ceases to be an employee of Hyderabad office with effect from 3-10-1994 and supposed to have born at the new station at Manipal, within the jurisdiction of Bangalore Office. Therefore, as contended by the learned Counsel for the Management, no cause of action arose for the workman at Hyderabad with effect from 3-10-1994 and mere stay at Hyderabad does not create any legal right to agitate his grievance about his termination after the cessation at Hyderabad office. At the most his stay at Hyderabad office. At the most his stay at Hyderabad is only illegal and as rightly pointed,t he same amounts to absenting himself from attending the duties at the new station. To put it in a different way, his stay at Hyderabad even after the cessation, must be for a valid reason. Further as it is already noticed, his grievance before the Tribunal was primarily regarding the termination. Hence in my view the workman had created an artificial cause of action to raise the dispute at Hyderabad, by incidentally questioning the orders of transfer also while challenging the orders of termination. Hence in view of the judgments referred to supra and also for the foregoing reasons, I am of the considered view that Industrial Tribunal-cum-Labour Court at Hyderabad has no jurisdiction to entertain the application filed by the workman under Section 2A(2) of the Industrial Disputes Act and accordingly the impugned judgment is no judgment in the eye of law for want of jurisdiction and the same is liable to be set aside.
35. In the instant case there is no challenge to the condition of transfer which was specifically incorporated in the letter of appointment of the respondent No. 3. Respondent No. 3 has also not challenged the order of transfer on the ground of want of jurisdiction. In the first representation given by the respondent No. 3, she has accepted the administrative exigencies which necessitated her transfer. When she made the request to the petitioner to the effect that in case of its inability to accommodate her at Delhi she may be given compensation. The allegations of mala fide were raised long after the petitioner informed her that it was not possible to accede to her request. The order of transfer dated 5th July, 2000 clearly indicated that the respondent No. 3 stood relieved from Delhi office with immediate effect and she was requested to report for duties to the administrative manager at Kanpur latest by 15th July, 2000. All communications were addressed to the respondent No. 3 from the office of the petitioner at Kanpur and she also made all representations to the same office. In these circumstances the bald allegation of mala fide in the issuance of the order of transfer, in these proceedings which is not supported by any other material or facts is noticed only to be rejected.
36. I am in respectful agreement with the principles laid down by the Division Bench of the Calcutta High Court in its pronouncement in the Indian Express Page 2063 Newspaper Bombay Pvt. Ltd. case(supra) and the Single Bench pronouncement of the Andhra Pradesh High Court in Siemens Limited case whereby it has been held that the employee seizes to be the employee of the office at the place of transfer on the notified date and he is supposed to have been called at the new station to which he stands transferred. Mere continuation of stay at the place whether the employee has been transferred does not create any legal right to adjudicate his grievance by his termination after the cessation of his employment at the office wherefrom he is transferred; his continuous stay at such place is illegal and amounts to absenting himself from attending duties at the new station. Stay at the place wherefrom an employee is transferred must be for valid reasons.
37. A workman cannot create an artificial cause of action to raise a dispute at a place wherefrom he/she has been transferred by incidently questioning the order of transfer while challenging the order of termination of service. In the instant case upon issuance of the order of transfer and its receipt by the respondent No. 3, the Delhi office of the petitioner no longer had any control over respondent No. 3 whose services stood transferred to Kanpur and it was the Kanpur office which had control over all services of the respondent No. 3. The respondent No. 3 has chosen not to question the order of transfer in any industrial adjudication or judicial proceedings and has questioned only the order of termination of her service. The situs of employment of respondent No. 3 being Kanpur, such a dispute could have been raised only at Kanpur.
38. So far as civil litigation and writ jurisdiction is concerned it has been held that the same can be instituted in any court where even a part of cause of action has arisen. Cause of action is not defined in the Code of Civil Procedure but has been judicially interpreted to mean every fact, which, if traversed, would be necessary for the plaintiff to prove in order to support his right to the judgment of the court. It is that bundle of fact which, taken together with the applicable law, entitles the plaintiff to relief against the defendants.
39. However, even in civil litigation, it has been held by the Apex Court that it is not every fact pleaded by a litigant which gives rise to a cause of action and only such facts as are necessary to adjudicate upon the lis would constitute a cause of action conferring territorial jurisdiction upon a court. Even if it was found that a part of cause of action has arisen within the jurisdiction of a court, it has been laid down by the apex court that on principles to form non-conveniens or otherwise, a court may refuse to exercise jurisdiction in the matter.
40. In this behalf, reference may be made to a recent judgment reported at entitled Kusum Ingots & Alloys Ltd. v. Union of India and Anr. the Apex Court has considered this issue further and held thus:
26. The view taken by this Court in U.P. Rashtriya Chini Mill Adhikari Parishad that the situs of issue of an order or notification by the Page 2064 Government would come within the meaning of the expression ‘cases arising’ in Clause 14 of the (Amalgamation) Order is not a correct view of law for the reason hereafter stated and to that extent the said decision is overruled. In fact, a legislation, it is trite, is not confined to a statute enacted by Parliament or the legislature of a State, which would include delegated legislation and subordinate legislation or an executive order made by the Union of India, State or any other statutory authority. In a case where the field is not covered by any statutory rule, executive instructions issued in this behalf shall also come within the purview thereof. Situs of office of Parliament, legislature of a State or authorities empowered to make subordinate legislation would not by itself constitute any cause of action or cases arising. In other words, framing of a statute, statutory rule or issue of an executive order or instruction would not confer jurisdiction upon a court only because of the situs of the office of the maker thereof.
41. It is noteworthy that the doctrine of forum conveniens is also guiding the courts in adjudicating upon and deciding issues, objections relating to territorial jurisdiction. This doctrine find its base in convenience to parties and applies the principles that the court having the closest connection to the lis would guide the court in deciding as to the objections relating to territorial jurisdiction of the courts. In this behalf in Kusum Ingots & Alloys Ltd. v. Union of India, the court held thus:
10. Keeping in view the expressions used in Clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter.
30. 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. [See Bhagat Singh Bugga v. Dewan Jagbir Sawhney, Madanlal Jalan v. Madanlal, Bharat Coking Coal Ltd. v. Jharia Talkies & Cold Storage (P) Ltd., S.S. Jain & Co. v. Union of India and New Horizons Ltd. v. Union of India.]
42. The Industrial Disputes Act 1947 is concerned with disputes between the employer and the employee and as such the position there under is not on all fours with the general civil law. Cause of action under the Industrial Disputes Act 1947 has to be construed and is relatable to the ‘situs of employment’ or the ‘control over the service of the employee’.
43. Mere allegation of the employee or the place his residence would not confer jurisdiction upon the authorities under the Industrial Disputes Act 1947 to deal with the matter.
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44. In a judgment reported at State of Rajasthan v. Swaika Properties, certain properties belonging to a company which had its registered office in Calcutta were sought to be acquired in Jaipur and the notice under Section 52 of the Rajasthan Urban Improvement were served upon the company at Calcutta. Basing its right to maintain the writ petition at Calcutta High Court, it had been contended that service of the notice within the territorial jurisdiction of the Calcutta High Court empowered that court to exercise jurisdiction in the matter. The Apex Court held that the entire cause of action for challenging the acquisition of the land under Section 152 of the Rajasthan Urban Improvement Act had arisen within the territorial jurisdiction of the Rajasthan High Court. The factum of service of the notice at Calcutta was held unnecessary for grant of an appropriate writ, order or direction under Article 226 of the Constitution for quashing the notice issued by the Rajasthan Government. It was thus held that the High Court at Calcutta had no jurisdiction to entertain the writ petition.
45. Thus, mere receipt of a notice or an order would not form part of bundle of facts which are necessary for effective adjudication of the lis. Therefore the mere receipt of the order of termination of service at Delhi by the respondent No. 3 in the instant case would not create jurisdiction in the respondent No. 1 to consider the complaint made by the respondent No. 3 or to exercise jurisdiction under Section 10 of the Industrial Disputes Act 1947.
46. In this behalf it would appropriate to also advert to the Full Bench pronouncement of the High Court of Judicature at Patna in a dispute between Paritosh Kumar Pal v. State of Bihar 1985(33) BLJR 150. In this case the court was called upon to answer a question as to whether the situs of employment of the workman would determine the locus for the territorial jurisdiction of the tribunal to entertain a dispute arising from the termination of his service under the Industrial Disputes Act 1947.
47. Shri Paritosh Kumar Pal, the writ petitioner had been appointed as a medical cum sales representative of the respondent company. On certain disputes arising between the writ petitioner and his employer company the petitioner was charge sheeted and thereafter his services were terminated. The employee raised an industrial dispute in the State of Bihar which was contested by the employer on a question relating to the maintainability of the reference by the State of Bihar for the reason that the employer was carrying on its business at and from Calcutta and the establishment at Calcutta. It was contended that the writ petitioner was carrying on the business of the employer in Bihar under the directions and supervision of the Calcutta office of the employer. Observing that the provisions of the Code of Civil Procedure on the point of jurisdiction are not applicable with the full force of their technical rigour, yet in their absence from the Industrial Disputes Act 1947, the broader general principles underlying them would undoubtedly be relevant. In this behalf the court noticed several judicial pronouncements on the subject thus:
11. In the light of the above, the authority which deserves pride of place is Lalbhai Tricumlal Mills Ltd. v. Dhonubhai Motilal Vin and Ors., (4) Page 2066 which has the repeated stamp of approval by the final Court. The facts of this case are closely similar to the present one because therein also substantially the dispute pertained to the termination of employment admittedly at Bombay where the workman was employed whilst the headquarters of the employer industry was in Ahmedabad. The workman had even complained and sought reinstatement with the head office of the Mills at Ahmedabad and the same being declined he raised an industrial dispute before the Labour Court in Bombay. On behalf of the employers objection was raised with regard to jurisdiction which was rejected by the Labour Court and the same was again strenuously urged before the High Court. Even the specific point that the approach for reinstatement had been made by the workman at Ahmedabad and the industrial dispute, therefore, arose on declining the same under Section 42(4) of the Act was pointedly urged on behalf of the employer-company. This, however, was categorically rejected by Chief Justice Chagla speaking for the Division Bench with the following observations:
Now the Act does not deal with the causes of action, nor does it indicate what factors will confer jurisdiction upon the Labour Court. But applying the well known tests of jurisdiction, a Court or Tribunal would have jurisdiction if the parties reside within jurisdiction or if the subject-matter of the dispute substantially arises within jurisdiction. And therefore the correct approach to this question is to ask ourselves where did this dispute substantially arise and in our opinion the only answer to that question can be that the dispute substantially arose in Bombay and not in Ahmedabad. What is the dispute? The dispute is not as to whether the employee approached the employer in Ahmedabad and no agreement was arrived at. The dispute is whether the employer was justified in dismissing the employee, and inasmuch as the employment was in Bombay and the dismissal was in Bombay, it is difficult to understand how it can possibly be urged that the dispute did not substantially arise in Bombay. What Mr. Bhagwati says is that there is no dispute till an approach is made by the employee under the proviso to Section 42 (4).
It is true that there would be no industrial dispute till the procedure laid down in the proviso to Section 42 (4) is satisfied, but in a more important sense there would be no dispute at all if there had been no dismissal by the petitioner of respondent No. 5.
And again:
If that is going to be the subject-matter of the inquiry before the Labour Court that subject-matter arose in Bombay and not in Ahmedabad. We express no opinion as to whether the Ahmedabad Court would equally have jurisdiction or not. We are only concerned with deciding whether on these facts the Bombay Labour Court has jurisdiction, and in our opinion if as in this case the employee was employed in Bombay and dismissed in Bombay and he is making a complaint about his dismissal and wants reinstatement and compensation, the Bombay Labour Court has jurisdiction to decide Page 2067 this application. We, therefore, agree with the Industrial Court in the view it has taken.
From the above it would appear that the aforesaid case in a way covers the issue herein on all fours by holding that the subject-matter of the industrial dispute arises at the situs of employment of the workman. However, in the above case the question whether there can also be concurrent jurisdiction at Bombay and Ahmedabad was left open by the Bench.
12. What next calls for notice is the fact that the aforesaid enunciation of the law was quoted verbatim and affirmed by the Constitution Bench of the Supreme Court in India Cable Co. Ltd. v. Its Workmen, (1962)1 Labour Law Journal 409. This in terms was more explicitly re-affirmed in Sri Rangavilas Motor’s case (supra) on which, rightly, firm reliance has been placed on behalf of the writ petitioner.’
48. After consideration of these precedents the court held as follows:
13. Now an incisive analysis of the aforesaid authoritative enunciation of law would indicate that three clear cut principles for determining jurisdiction emerge there from. 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 service 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.
49. In this case the Full Court Bench held that the situs of the workman’s employment in the case of termination of his services is patently the paramount factor if not being wholly conclusive. It is within the area of employment that the order of termination operates and the workman loses his right to hold the post and receive wages therefore. The Full Bench held that, therefore, on the anvil of the principle of where the impugned order operates, the situs of the employment of the workman is patently significant.
It was further held that on the second principle attracted to the industrial dispute having some nexus with the territory of the State, the situs of employment of the workman assumes importance. The Full Bench held that once a firm finding is arrived at that the workman was employed within a specific territory or State, the termination of his services there under has an obvious and direct nexus with such territory of such State. Such a nexus may not be necessarily between the territory of the state with the industry or its head quarters.
50. In the facts of the case, the court was of the view that the employee was located in the State of Bihar and the order of termination would being there Page 2068 and in these circumstances it was held that the State of Bihar was the appropriate Government and the reference by it was consequently valid.
The judicial precedent has held that broadly speaking those very considerations which apply to civil litigation in constituting cause of action would be directed even in the case of industrial disputes which would encompass of those of facts on the basis of which a person invokes the provision of said enactment. However, a close examination of the same compells this Court to hold that though the well known principles of territorial jurisdiction governing the civil courts which are based on the concept of cause of action would be equally applicable to determine the jurisdiction under the Industrial Disputes Act, however they remains a find distinction in specific areas. So far as a dispute relating to service in the nature of a challenge to either an order of transfer or termination of service is concerned, territorial jurisdiction would have to be relatable to the situs of employment and its control over the employment. In a given case, there may be a concurrent jurisdiction in different states where parties may fairly have the option to choose the forum. I am fortified in this view by the observations in all the Apex Court in Indian Cable Company case (supra) and have been in the Ranga Vilas Motors Private Limited case (supra).
However, upon an order of transfer which says it takes effect immediately and directs that the workman would stand the situs of employment changes to the place of transfer. The place where the workman is transferred from list of control over the employment of the workman as in the instant case. More so, when the order of transfer is not even assailed by the workman.
51. In the instant case the nexus between the industrial dispute and the territory of the respondent No. 1 is not satisfied and the respondent No. 1 would not be the appropriate Government to exercise jurisdiction under the Industrial Disputes Act in respect of the complaint made by the respondent No. 3. I, therefore, hold that the respondent No. 1 was not competent to make the order of reference dated 1st April, 2002. The petitioner stood transferred to Kanpur the order of termination of her services at Kanpur was effected after holding disciplinary proceedings at Kanpur. It would be the authorities at Kanpur who would have the jurisdiction to deal with the complaint, if at all made, by respondent No. 3. Accordingly the order dated 1st April, 2002 is quashed. Consequently thereupon the proceedings arising there from is also incompetent and is hereby quashed.
52. Needless to say that the respondent No. 3 shall be at liberty to approach the appropriate Government which would have jurisdiction in the matter in accordance with law.
53. This writ petition is allowed in above terms.