Employee can file complaint against Termination Also at City Where Management decided to Terminate

Apex Court; Supreme Court of India; If Management at City of Aurangabad took decision to Terminate employee posted at City of Pondicherry then employee can file complaint at Aurangabad also in addition to Pondicherry. The complaint filed at Aurangabad shall also be maintainable.

Brushing aside all details on several issues as 'Academic' the Apex Court decided the matter on factual matrix, and decided that:

'The undisputed position is that: Court (Labour Court) in Aurangabad within whose jurisdiction the Management is situated and where the Management has taken the decision to close down the unit at Pondicherry and pursuant to which the appellant was terminated from service also have the jurisdiction. In the facts of this case both the Courts (Labour Courts) have the jurisdiction to deal with the matter.”

The employee joined the company as Boiler Assistant at Aurangabad and was promoted as Junior Supervisor at Aurangabad and again promoted as Senior Supervisor at Aurangabad.

The he was transferred to Silvassa in Gujarat and again transferred to Pondicherry (UT).

The employee was terminated from service on account of closure of the establishment at Pondicherry.

The employee a 'Senior Supervisor' can approach court (Labour Court) at Aurangabad also.

{A} Bad order of Termination falls flat in court of law as it does not pass test of law.

So some tactics are applied.

It is old and time tested tactics of employers and IT's attorney's in Line Management/HR/Admin/Personnel/Legal cell and Lawyers engaged by Employer to transfer the employee to another/far away location before passing termination order.

IT is believed by employers and IT's attorney's that many employees may find new/far away location inconvenient, where employee was located on day of Termination and termination order was supplied and may not approach courts of law.

IT is believed by employers and IT's attorney's that many employees are not skilled in handling such matters and are not properly informed and are not supported by unions and very able counsels of unshakable repute and integrity specializing in Labor/service matters.

However an employee that is skilled and/or properly informed and/or supported by unions and very able counsels and whose source of livelihood and future employability is affected decides to contest order of termination.

With latest decision from Apex Court employee can lodge complaint also at City in which management took decision to terminate.

(B} (i) Code of Civil Procedure, 1908:

20. Other suits to be instituted where defendants reside or cause of action arises .- Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction—

(a) The defendant, or each of the defendants where there are more than one, at the time of the commencement of the Suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or

(ii) THE MAHARASHTRA RECOGNITION OF TRADE UNIONS AND PREVENTION OF UNFAIR LABOUR PRACTICES ACT, 1971.

6. LABOUR COURT. - The State Government shall, by notification in the Official Gazette, constitute one or more Labour Courts, having jurisdiction in such local areas, as may be specified in such notification, and shall appoint persons having the prescribed qualifications to preside over such Courts: Provided that, no person shall be so appointed, unless he possesses qualifications (other than the qualification of age), prescribed under Article 234 of the Constitution for being eligible to enter the judicial service of the State of Maharashtra; and is not more than sixty years of age.

28. PROCEDURE FOR DEALING WITH COMPLAINTS RELATING TO UNFAIR LABOUR PRACTICES. -

(1) Where any person has engaged in or is engaging in any unfair labour practice, then any union or any employee or any employer or any Investigating Officer may, within ninety days of the occurrence of such unfair labour practice, file a complaint before the Court competent to deal with such complaint either under section 5, or as the as the case may be, under section 7, of this Act : Provided that, the Court may entertain a complaint after the period of ninety days from the date of the alleged occurrence, if good and sufficient reasons are shown by the complainant for the late filing of the complaint.

{C} This writ petition filed under Articles 226 and 227 of the Constitution of India challenges judgment and order dated 4th July, 2009 passed by the learned Member, Industrial Court, Aurangabad in revision (ULP) No. 13 of 2009. The learned member held that the petitioner's complaint filed in the Labour Court was not maintainable there for want of territorial jurisdiction.

The establishment at Pondecheri was closed down and on account of such event, the services of the petitioner were terminated.

The petitioner was paid certain amount as compensation.

The question of jurisdiction in this case could not have been a mixed question of law and facts because the jurisdiction is required to be decided on the basis of averment in the complaint alone. The complaint in this case clearly discloses that the cause of action had arisen at Pondecheri when the petitioner was terminated giving him certain amount as compensation.

Due to this event, no doubt, the petitioner would come back to his original place of resident i.e. Aurangabad. But does it mean that he would be able to file his complaint at Aurangabad?

The high Court referred to: - The Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour

Practices Act, 1971; Sec;6,28(1)

- Code of Civil Procedure, 1908: Sec;20 as asserted by petitioner (employee)

- Judgment of Divisional Bench of Bombay High Court: Glaxo Smithkline Pharmaceuticals Ltd. Vs. Abhay Raj Jain & anr that decided:

'it is thus clear that it is the situs of the employment which would be the relevant factor to decide the place of cause of action for initiating any legal proceedings...”

- Judgment of Divisional Bench of Bombay High Court;Lalbhai Tricumlal Mills Ltd., v. Vin (D.M.) and others that decided:

'...applying the well-known test of jurisdicition a Court or Tribunal will have to entertain the matter when the parties reside within its jurisdiction or if the subject-matter of the dispute substantially arises within its jurisdiction and, therefore, the correct approach to ascertain the jurisdiction is to ask oneself as to where does the dispute substantially arose....”.

 The Bombay High Court decided that:

The fact that the respondent - company's registered office is at Aurangabad will not give jurisdiction to the Labour Court at Aurangabad to entertain the complaint. Writ Petition should therefore fail. Writ Petition Stands dismissed. Rule is discharged.

NANDRAM Vs M/S GARWARE POLYSTER LTD
WRIT PETITION NO. 4968 OF 2009
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD

{D}  It is not necessary to go into all those aspects and details on several issues mainly because in our view they are only Academic.

In the background of the factual matrix, the undisputed position is that:

Court (Labour Court) in Aurangabad within whose jurisdiction the Management is situated and where the Management has taken the decision to close down the unit at Pondicherry and pursuant to which the appellant was terminated from service also have the jurisdiction. In the facts of this case both the Courts (Labour Courts) have the jurisdiction to deal with the matter.

The appellant joined the respondent as Boiler Assistant at Aurangabad and was promoted promoted as Junior Supervisor at Aurangabad and again promoted as Senior Supervisor at Aurangabad.

The he was transferred to Silvassa in Gujarat and again transferred to Pondicherry (UT).

By proceeding dated 12.04.2005, appellant was terminated from service w.e.f. 15.04.2005 on account of closure of the establishment at Pondicherry.

The registered office of the Company is in Aurangabad and the decision to close the establishment at Pondicherry was taken by the Company at Aurangabad.

The appellant moved the Labour Court at Aurangabad in complaint ULP No.56 of 2005.

Despite the objection taken by the respondent that the Labour Court lacked jurisdiction, the Court held in favour of the complainant.

The respondent-Company took up the matter before the Industrial Court at Aurangabad in revision. The Industrial Court at Aurangabad set aside the order of Labour Court holding that the Labour Court at Aurangabad did not have territorial jurisdiction to entertain the complaint of the appellant, since the termination took place at Pondicherry. 

The appellant (Employee) moved the High Court of Judicature of Bombay at Aurangabad and High Court also held that the situs of employment of the appellant being Pondicherry, the Labour Court at Aurangabad did not have territorial jurisdiction.

The appellant (Employee) is before The Supreme Court of India.

5. Though, the learned counsel on both sides had addressed in detail on several issues, we do not think it necessary to go into all those aspects mainly because in our view they are only academic. In the background of the factual matrix, the undisputed position is that the appellant was employed by the Company in Aurangabad, he was only transferred to Pondicherry, the decision to close down the unit at Pondicherry was taken by the Company at Aurangabad and consequent upon that decision only the appellant was terminated. Therefore, it cannot be said that there is no cause of action at all in Aurangabad. The decision to terminate the appellant having been taken at Aurangabad necessarily part of the cause of action has arisen at Aurangabad. We have no quarrel that Labour Court, Pondicherry is within its jurisdiction to consider the case of the appellant, since he has been terminated while he was working at Pondicherry. But that does not mean that Labour Court in Aurangabad within whose jurisdiction the Management is situated and where the Management has taken the decision to close down the unit at Pondicherry and pursuant to which the appellant was terminated from service also does not have the jurisdiction. In the facts of this case both the Labour Courts have the jurisdiction to deal with the matter. Hence, the Labour Court at Aurangabad is well within its jurisdiction to consider the complaint filed by the appellant. Therefore, we set aside the order passed by the High Court and the Industrial Court at Aurangabad and restore the order passed by the Labour Court, Aurangabad though for different reasons.

6. The Labour Court shall consider the complaint on merits and pass final orders within six months from today. The parties are directed to appear before the Labour Court on 08.03.2016.

8. The appeal is allowed to the above extent with no order as to costs.

NANDRAM APPELLANT VERSUS M/S GARWARE POLYSTER LTD. RESPONDENT
REPORTABLE IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1409 OF 2016 (Arising out of SLP ( C) No. 33917 of 2011)
.................J. [KURIAN JOSEPH]
....................J. [ROHINTON FALI
NARIMAN]
NEW DELHI;
Dated; FEBRUARY 16, 2016

{E} More and More number of employees have been showing guts and protecting their source of livelihood, future employability and have been uniting.

The employees at any position/designation that are skilled, are properly informed are supported by unions and very able counsels specializing in Labor/Service matters are able to rise and defend their interest and get relief by their own efforts , and with the help and support from Unions and counsels from Authorities and/or court of law.

The community of employees must unite and become properly informed and retain access to very counsels specializing in Labor/Service matters.

 

Kumar Doab 
on 24 October 2017
Published in Labour & Service Law
Views : 158
Other Articles by - Kumar Doab
Report Abuse









×

  LAWyersclubindia Menu

web analytics