Vinod Singh Yadav vs M/S Securitans India Pvt Ltd

Vinod Goel, J

Challenge in this writ petition under Article 226/227 of the Constitution of India by the petitioner is the Award dated 02.11.2015 in case vide LIR

No.393/2012 on making a reference dated 22.06.2012 by Deputy Labour Commissioner, Govt. of NCT of Delhi under Section 10 (1) (c) and 12 (5) of

Industrial Disputes Act, 1947 (in brief I.D.Act) with the terms of the reference “Whether services of Sh.Vinod Singh Yadav have been illegally

and/or unjustifiably terminated by the management, and if yes, to what relief is he entitled?†and the Labour Court-XIX, Karkardooma Courts, Delhi

(In short „Industrial Adjudicatorâ€) returned the findings that it has no jurisdiction to try and adjudicate the industrial dispute and the claim of the

petitioner was not maintainable.

The petitioner claimed that he had joined the employment of the of respondent as „Gunman†in May, 2007. Since the petitioner along with the

other workmen raised the demand of overtime and other statutory benefits, the respondent/management suspended him on 02.04.2011 by levelling

allegations that the petitioner had misbehaved with his superior. Sh. U.C. Notiyal was appointed as Inquiry Officer. After enquiry, a show cause

notice was issued to the petitioner and ultimately, the service of the petitioner was terminated on 26.07.2011.

Learned counsel for the petitioner argued that the respondent had informed the petitioner about the appointment of Sh. U.C. Notiyal as Inquiry

Officer from its Head Office in Delhi vide letter dated 03.05.2011. He submitted that the Inquiry Officer had also conveyed to the petitioner that the

enquiry proceedings would be conducted in Delhi Office by his letter of even date. He referred to a show cause notice dated 30.06.2011 issued to the

petitioner after conclusion of the enquiry proceedings by the respondent from its Delhi Office. He argued that the letter of termination of the services

of the petitioner dated 26.07.2011 was also issued by the respondent from its Delhi Office. He urged that since part of cause of action has accrued in

Delhi, Courts in Delhi has jurisdiction to adjudicate the dispute.

He emphasised that if the respondent had any grievance with regard to the Reference, the remedy for the respondent was by way of a challenge in

writ petition in the High Court and the Industrial Adjudicator could not have entertained the defence of the respondent that he lacked jurisdiction to

answer the reference.

Per contra, it is submitted by learned counsel for the respondent/management that there is no infirmity in the findings of the Industrial Adjudicator

which is a well reasoned one. He has relied upon a Full Bench judgment of the Patna High Court inP aritosh Kumar Pal Vs. State of Bihar & Ors,

1984, Lab.IC 1254 wherein it was held that situs of the employment of the workman would be a relevant factor to determine the territorial jurisdiction

of the Industrial Adjudicator. He submitted that since the petitioner was posted in Noida and removed from his services while being posted there, the

Government of NCT of Delhi had no jurisdiction to refer any industrial dispute. He submits that the Head Office of the Management was in Bombay

and they have the corporate office in Delhi and since the termination of the services of the petitioner became effective in Noida, Labour Court in

Delhi had no jurisdiction and the NCT of Government of Delhi could not have made the reference.

I have heard learned counsel for the parties.

To appreciate the rival contentions of the parties it would be profitable to refer to Sub Section (1) of Section 10 and Sub Section 5 of Section 12 of

the I.D. Act which reads as under:-

Reference of disputes to Boards, Courts or

(1) where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing-

(a) refer the dispute to a Board for promoting a settlement thereof, or refer any matter appearing to be connected with or relevant to the dispute to a

Court for Inquiry; or

(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it releates to any matter specified in the Second

Schedule, to a Labour Court for adjudication; or

(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second

Schedule or the Third Schedule, to a Tribunal for adjudication;

Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the

appropriate Government may, if it so thinks fit, make the reference to a Labour Court under clause (c):

Provided further that where the dispute relates to a public utility service and a notice under Section 22 has been given, the appropriate Government

shall unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this

sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced.

Provided also that where the dispute in the relation to which the Central Government is the appropriate Government, it shall be competent for the

Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government.

Duties of Conciliation Officers.-

(5) If, on a consideration of the report referred to in sub-section (4), the appropriate Government is satisfied that there is a case for reference to a

Board, Labour Court, Tribunal or National Tribunal, it may make such reference. Where the appropriate Government does not make such a reference

it shall record and communicate to the parties concerned its reasons therefor.

A conjoint reading of sub section (5) of Section 12 read with sub section (1) of Section 10 of the I.D. Act reflects that these provisions confer the

power on the appropriate government which after formation of an opinion about the existence/apprehension of industrial dispute between the parties to

make a reference to a Board for promoting a settlement thereof or to the Labour Court, Tribunal or Industrial Tribunal.

Here it would be relevant to refer to sub section (4) of Section 10 of the I.D. Act which is a mandate to the Labour Court/Tribunal or National

Tribunal that it shall confine its adjudication to those points and matters incidental thereto which have been specified in the Reference. Sub section (4)

of Section 10 reads as under:-

Reference of disputes to Boards, Courts or Tribunals.-

(4) Where in an order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this Section or in a subsequent order, the

appropriate Government has specified the points of dispute for adjudication, the Labour Court or the Tribunal or the National Tribunal, as the case may

be, shall confine its adjudication to those points and matters incidental thereto.

It is clear as crystal from a reading of Section 10 (4) of I.D. Act, that the Labour Court/Tribunal/National Tribunal cannot go beyond the points of

reference and is mandatorily required to confine its adjudication to the points of reference and matters incidental thereto.

It has been held by the Honâ€ble Supreme Court in National Engineering Industries Ltd. Vs. State of Rajasthan AIR 2000 SC 46 9that the

Industrial Tribunal is the creation statute and gets its jurisdiction on the basis of reference. It cannot go into the question on the validity of the

reference.

In Bikash Bhushan Ghosh versus Novartis India Ltd.(2007) 5 SCC 59 1the Hon’ble Supreme Court has held that the State where the part of

the cause of action has accrued would have the jurisdiction to make a reference. The Apex Court has also held that the communication of order of

termination itself gives rise to the cause of action as the order of termination takes effect from the date of communication of the said order. It is

further held that in view of the provisions contained in Section 21 of the Code of Civil Procedure unless the respondent suffered any prejudice, they

could not have questioned the jurisdiction of the Court.

Very recently in the case titled as Nand Ram Vs. Garware Polyster Limited (2016) 6 SCC 29,0 the workman was employed in the year 1983 by

the Management in Aurangabad; he was transferred to Silvassa (Gujarat) on 21.10.2000; by another order dated 20.12.2001 he was transferred from

Silvassa to Pondicherry; due to closure of the unit at Pondichery, his services were terminated on 15.04.2005 and the decision to close down the unit

at Pondicherry was taken by the management company at Aurangabad. The Hon’ble Supreme Court has held that since the decision to terminate

the service had been taken at Aurangabad, necessarily part of the cause of the action has arisen at Aurangabad. As a result, the Hon’ble

Supreme Court has further held that since the services of the appellant was terminated while he was working at Pondicherry, the Labour Court at

Pondicherry had jurisdiction to consider the case and that does not mean that the Labour Court in Aurangabad within whose jurisdiction the

management is situated and decision was taken to close down the unit at Pondicherry and pursuant to which the appellant was terminated from the

services also did not have the jurisdiction.

A single Bench of this Court in Raj Kumar Jaiswal Vs. Rangi International Pvt. Ltd. 2009 (113) DRJ 62 0has held that industrial dispute arises at

the place where the employer is exercising effective control and the State Government having jurisdiction over the place from which the employer

exercises effective control would have jurisdiction to make the reference. It was also observed that in the absence of any prejudice being shown to

have suffered by the employer in contesting the proceedings in Delhi, the plea of territorial jurisdiction cannot be permitted to be taken especially in the

matters relating to Industrial Disputes Act which is a social welfare legislation.

While considering the facts of the present case in the light of the above said legal position so discussed it is found that admittedly by letter dated

03.05.2011, the Respondent/Management company had informed the petitioner from its Delhi Office situated at House No.10, DDA Commercial

Complex Nangal Raya New Delhi-110046 regarding the appointment of Sh.U.C. Notiyal as an Inquiry Officer. By another letter of the even date, Sh.

U.C. Notiyal was informed by the respondent on its letter head from its New Delhi Office appointing him as Inquiry Officer into the charges against

the petitioner vide charge sheet dated 08.04.2011. By this letter, the respondent directed him to conduct the enquiry proceedings at its premises 226,

3rd Floor, Satya Niketan, New Delhi-110021. By a communication dated 06.05.2011, the Inquiry Officer Sh. U.C. Notiyal had conveyed the petitioner

about his appointment as Inquiry Officer and he had fixed the date, time and place of enquiry as 20.05.2011 at 2:00 pm at 226, 3rd Floor, Satya

Niketan, New Delhi-110021 and the petitioner was directed to come present and participate in the enquiry. A show cause notice dated 30.06.2011

was issued to the petitioner by the respondent from its office at House No.10 DDA Commercial Complex Nangal Raya, New Delhi-110046 to the

effect that by the report of the Inquiry Officer dated 28.06.2011 the charges stand proved against him and he was directed to give explanation within

three days to their proposed punishment of termination. By letter dated 26.07.2011 the respondent had communicated its decision to the petitioner to

terminate his service from the date of the letter. This letter was also issued by the respondent from House No.10 DDA Commercial Complex Nangal

Raya, New Delhi-110046.

No doubt the petitioner was posted in Noida but admittedly the respondent/management had taken the decision to appoint Sh. U.C. Notiyal as an

Inquiry Officer which was communicated to the petitioner by letter dated 03.05.2011 from its Delhi Office. The enquiry proceedings were also

conducted by the Inquiry Officer in Delhi Office of the respondent. After receiving the Enquiry Report the show cause notice dated 30.06.2011 was

also issued by the respondent from its Delhi office to the petitioner. Ultimately, letter of termination dated 26.07.2011 was also communicated to the

petitioner from its Delhi Office. It is implied from these communications dated 03.05.2011, 30.06.2011 and 26.07.2011 that the

respondent/Management exercises its effective control at its Delhi office. The decision to terminate the service of the petitioner was taken by the

respondent in Delhi. Certainly the part of the cause of action had accrued in Delhi. Therefore, the Government of NCT of Delhi has rightly exercised

its jurisdiction to refer the disputes between the parties to Labour Court in Delhi.

No justification has been given by the Respondent/management as to how and what prejudice would be caused to them if the Reference is

adjudicated by the Industrial Adjudicator in Delhi. Sub section (4) of section 10 of the ID Act is a legal mandate to the Industrial Adjudicator that he

shall confine its adjudication to the points of reference and matters incidental thereto only. The ID Act as postulated is a social welfare legislation

enacted with an objective of taking care of the poor/labour class and travelling beyond the terms of reference while adjudicating any such dispute

would unnecessarily lead to miseries of the workman.

In these circumstances, there was no occasion for the Industrial Adjudicator to raise its hands from adjudicating the disputes referred to it and not

to answer the reference on the ground of lack of jurisdiction. Consequently order dated 02.11.2015 passed by the Industrial Adjudicator cannot be

sustained and is liable to be set aside.

Here, it will not be out of place to refer the judgment of the Apex Court in D.P. Maheshwari Vs. Delhi Administration (1983) 4 SCC 293 wherein

the Apex Court has held that the Tribunals particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery

and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues.

In view of the above discussions, the order dated 02.11.2015 of the Industrial Adjudicator is set aside. Let the reference be answered in terms of

its reference by the concerned Labour Court in accordance with law expeditiously within a period of 6 months. Since the petitioner/workman was

made to suffer because of false and frivolous objection on the part of respondent/Management regarding lack of jurisdiction of Labour Court, let the

respondent/Management pay the cost of Rs.50,000/- to the petitioner by way of Demand Draft before the Industrial Adjudicator within four weeks.

Parties are directed to appear before the concerned Labour Court on 12.03.2018.