Research › Search › Judgment

Calcutta High Court · body

2002 DIGILAW 6 (CAL)

EASTERN COALFIELDS LIMITED v. UNION OF INDIA

2002-01-09

AMITAVA LALA

body2002
AMITAVA LALA, J. ( 1 ) THIS writ petition is made by the Eastern coalfields Limited, a subsidiary of the Coal india Ltd. , challenging an award passed by the presiding Officer, Central Government industrial Tribunal- cum-Labour Court No. 3, dhanbad, under Reference No. 64 of 1980 being dated 21/03/1983. The issue before such Tribunal was as follows:"whether the action of the management of ratibati Colliery of Eastern Coalfields limited, P. O. Kalipahari, District burdwan, in refusing employment to Shri mahajan Kurmi and 131 others (names, given in the annexure) is justified? If not, to what relief are the concerned workmen entitled and from what date ?" ( 2 ) THE Tribunal finally held on the strength of the evidence as well as argument that refusal of employment to the workmen by the management is fully unjustified and illegal and, therefore, the concerned workmen are entitled to be absorbed permanently under the present management. The date of the award, i. e. , 21/03/1983, is treated as a date of absorption with full back wages. The petitioner invoked the Calcutta High Court writ jurisdiction challenging such award passed by the Industrial Tribunal, Dhanbad in Bihar. The moot point of such challenge is that both the reference and the award are without jurisdiction. There is no employer and employee relationship in between the petitioner and the workmen thereunder. No industrial dispute available under the Act, which could have been referred to the Tribunal for adjudication. There is a delay in raising the purported industrial dispute in 1979 while the lock out was caused in the year, 1986. Non-implementation of any settlement on 13/11/1967, cannot be called as an industrial dispute. If any one is guilty he can be punished under Section 29 or under Section 33 (1) of the Industrial Disputes Act, 1947, or both of them. The dispute is mala fide. The finding is perverse. The decision is unwarranted. The award is made in violation of the Coal Mines (Nationalisation) Act, 1973. The award of back wages is in violation of section 7 of the aforesaid Act. The award is the outcome of non-application of mind and arbitrary. ( 3 ) IMMEDIATELY after moving this writ, petition, a rule was issued and interim orders were passed on 21/11/1983. By such interim orders operation of the award was stayed and the respondents were injuncted from acting upon such award. Thereafter, on. The award is the outcome of non-application of mind and arbitrary. ( 3 ) IMMEDIATELY after moving this writ, petition, a rule was issued and interim orders were passed on 21/11/1983. By such interim orders operation of the award was stayed and the respondents were injuncted from acting upon such award. Thereafter, on. numerous occasions the matter appeared before different Benches of the Court. Ultimately, the matter was placed under the heading of "old matters" and thereafter as "old adjourned matters" of this Court. ( 4 ) ALTHOUGH the various interesting points were available but at the threshold a question came into the mind of the Court as to the availability of the writ jurisdiction of the calcutta High Court. Therefore, I called upon the petitioner to satisfy the Court on this issue. In turn, R. N. Majumdar, learned counsel, sought for a time to satisfy the Court not only by the oral submission but by filing supplementary affidavit as to how the writ jurisdiction of the Calcutta High Court is available in this respect. Such leave was granted. Accordingly, supplementary affidavit was filed. From the statement in the supplementary affidavit, I find that it is more notes of argument than supplementary affidavit. However, I have carefully considered the same. According to the petitioner, the award ipso facto become non-enforceable. It only becomes enforceable when it has been published by the Central Government under section 17 of the Industrial Disputes Act and the period of 30 days given thereunder has expired. In the instant case, the award was published from New Delhi and communicated to the registered office of the petitioner at sanctoria, P. O. Dishergarh, District Burdwan, west Bengal. It has also contended that even as per Section 17-A, the Central Government has power to declare the award non-enforceable after expiry of such 30 days by issuance of notifications in the Official Gazette. Therefore, in all, the enforceability and/or non-enforceability of the award depends upon the Central Government. In the instant case, the enforceability lies with the petitioner's office situate within the State of West Bengal. Therefore, in all, the enforceability and/or non-enforceability of the award depends upon the Central Government. In the instant case, the enforceability lies with the petitioner's office situate within the State of West Bengal. ( 5 ) UNDER Article 226 (2), the power of the high Court as provided can be enforceable in relation to the territories within which the cause of action, whole or in part arises for the exercise of such power, notwithstanding that the seat of such Government or authority or i residence of such person is not within those territories. Even if I proceed with Section 20 of the Code of Civil Procedure, I shall be able to find out that local limits are provided therein as regards residence or carrying on of business or personal works for gain but in respect of cause of action wholly or in part arises. At the present moment, I am not concerned with the place of residence or carrying on of business or personal work for gain but relating to i jurisdiction as regards cause of action wholly ' or in part, arises under Section 20 (c) of the code of Civil Procedure. ( 6 ) FOR the purpose of showing distinguishing features a three- judge Bench judgment of the Supreme Court in Oil and natural Gas Commission v. Utpal Kumar Basu 1994 (4) SCC 711 , has been cited by learned counsel appearing for the petitioner. I have gone through the judgment carefully to apply i the ratio in the subject context. According to me, in agreeing with the Supreme Court judgment, cause of action is bundle of facts. Further, according to me, the cause of action is independent from the place of business or i occupation or residence. When a Court finds that a cause of action arises at the office or residence of a party then obviously that Court assumes jurisdiction finding such place or places has or have nexus or connection with the cause of action. In other words, if the cause of action has nexus or connection with the place of business or residence then that Court has jurisdiction. That is the ratio decidendi of the three-judge Bench of the Supreme Court based on the principle that a writ jurisdiction of the high Court should go by the provision laid down under Article 226 (2) of the Constitution of India. That is the ratio decidendi of the three-judge Bench of the Supreme Court based on the principle that a writ jurisdiction of the high Court should go by the provision laid down under Article 226 (2) of the Constitution of India. It appears to me, that non obstante clause of the seat of the Government or the authority or the residence of a person, if not within the territories, does not qualify the claim of the petitioner if the cause of action wholly or in part arises within the writ jurisdiction of such High Court. But mere residence or office, ipso facto, cannot give a cause of action for the purpose of invocation of the jurisdiction if not otherwise available. ( 7 ) WITH this understanding, now I have to analyse the present position. Not only the. registered office of the petitioner company but also the coal mine/s at which the workers are working is/are situated with the territorial jurisdiction of the State of West Bengal. The notification has been issued by the Central government from New Delhi giving effect of the award to the office and mines of the State. Entire labour dispute arose in respect of a coal mine in the district of Burdwan in West Bengal. The terms of settlement in between the management and the workmen was executed in between the parties at Asansol in West Bengal. One of the questions is implementation of such terms of settlement. The issue before the tribunal was in respect of the labour dispute of west Bengal. All the papers, documents in connection with such dispute are available in the State. Presently, such Tribunal has been shifted to Asansol in West Bengal. From the supplementary affidavit I find under memorandum 16a/itc/ (89)-416, dated 6/12/1989, that the Presiding Officer had written a letter to the Secretary, government of India, Ministry of Labour, New delhi, for necessary sanction about issuance of certified copies of awards orders, etc. , by the secretary to the Court, Asansol, in respect ol cases/applications disposed of by the then C. G. I. T.-cum-Labour Court No. 3, Dhanbad, and custody of the old records from and at Asansol. ( 8 ) UNDER such circumstances, I do not find any material lacking the Court in invoking jurisdiction. A forum where a Presiding Officer sits cannot give a cause of action. ( 8 ) UNDER such circumstances, I do not find any material lacking the Court in invoking jurisdiction. A forum where a Presiding Officer sits cannot give a cause of action. Cause of action is the reason of invocation of jurisdiction due to certain cause arising within the territory. In the instant case, leaving aside the forum of the tribunal and communication of the award by way of notification from New Delhi, no part of the cause of action is arising outside the jurisdiction. If the cause of action under Article 226 (2) is wholly arising within the jurisdiction then there will be no second thought about invocation of the same but where the part arises, there, the principle of forum convenience will be the guiding factor for the purpose of invocation of the jurisdiction. In the instant case, since maximum part of the cause of action, is arising within the jurisdiction not only this Court alone has partial jurisdiction but as a matter of fact this writ jurisdiction ought to be the jurisdiction. ( 9 ) HENCE, the Court has jurisdiction to entertain the writ petition on the following grounds: (a) a forum for Tribunal, ipso facto, cannot give the cause of action for invocation of jurisdiction of a Court within the territory where such forum situates; (b) if the place of business or occupation or residence is independent of cause of action then the proceeding will be initiated within the territory of jurisdiction within which the cause of action is arising notwithstanding the place of business or occupation or residence; (c) if the place of business or occupation or residence will have the nexus or connection with the cause of action then the territory of such Court can be invoked for the purpose of redressal of grievance; (d)whenever a question of part jurisdiction will arise the Court having maximum part will be the convenient forum for the purpose of invocation; (e) writ Court should proceed strictly in accordance with Article 226 (2) but not being influenced by the provision of the code of Civil Procedure applicable for commercial litigations. ( 10 ) UPON formulating such points, I also add that the invocation of jurisdiction even at this stage, can be questioned if the ratio of the three-judge Bench of the Supreme Court in Oil and Natural Gas Commission v. Utpal Kumar basu (supra) is truly followed. ( 10 ) UPON formulating such points, I also add that the invocation of jurisdiction even at this stage, can be questioned if the ratio of the three-judge Bench of the Supreme Court in Oil and Natural Gas Commission v. Utpal Kumar basu (supra) is truly followed. ( 11 ) HOWEVER, taking into totality of the matter, I am of the view that this Court has jurisdiction to entertain, try and determine the writ petition. Therefore, the petitioner succeeds in this preliminary point. Let the matter be placed in the list for the purpose of hearing on the merits. ( 12 ) LET an urgent xeroxed certified copy of this judgment, if applied for, be given to learned advocates for the parties within two weeks from the date of putting the requisites.