AMITAVA LALA, J. ( 1 ) IN this writ petition the employer company (hereinafter called as 'management') challenged the order of reference issued by the Government of West Bengal (Labour Department) Kolkata on 16th December, 2002. The issues are as follows: "1) Whether the discharge of Sri Asok Chatterjee from his service by the MJT of Mapra Laboratories (P) Ltd. is justified? 2) What relief, if any, is he entitled to?" ( 2 ) THE management has its office at Mumbai, Maharashtra. Order of reference made by the State showing local office of the management at kolkata. Following two disputes arose in between the workman and the management. ( 3 ) THE contention of Mr. R. M. Chatterjee, Learned Counsel is that the government of appearing for the writ petitioner is that the Government of West Bengal is not but the Government of Maharashtra is the appropriate Government under Section 2 (a) (ii) of the Industrial Disputes act. When Clause (i) therein deals with Central Government and/or instrumentality under It, clause (11) deals with Industrial dispute in relation to State Government. Section 2 (d) and 2 (e) speak about the 'conciliation officer' and 'conciliation proceedings'. Section 4 speaks about appointment of conciliation officer/s by the appropriate Government. As per Section 11 (6) of the Act all Conciliation officers are the members of the Board or Court and the presiding Officers of a Labour Court, Tribunal or National tribunal shall be deemed to be the public servants within the meaning of Section 21 of the Indian Penal Code. As per Section 12 (4) the conciliation officer will furnish a report before an appropriate Government if no such settlement is arrived. In view of such Section (5) if the appropriate Government is satisfied in considering the report that there is a case of reference to the Board, Court, Tribunal etc. 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 thereof. Conciliation was commenced on the date of reference as per Section 20 of Act. Section 10 says reference of disputes to the boards, Courts or Tribunals can be made where the appropriate government is of the opinion that an industrial dispute exists or is apprehended. Conciliation was commenced on the date of reference as per Section 20 of Act. Section 10 says reference of disputes to the boards, Courts or Tribunals can be made where the appropriate government is of the opinion that an industrial dispute exists or is apprehended. There is no doubt that dismissal of an individual workman can be considered as an industrial dispute as per Section 2a of the Act which includes discharge, dismissal,. retrenchment and otherwise termination of the service of an industrial workman. There, the industrial dispute raised as per such sections about discharge of the particular workman. The service contract provides forum selection clause which says about Bombay jurisdiction, Therefore, the question remains whether the state Government is the appropriate Government or not. This is very important point to be determined that as per: Section 18 of the Act if any award is passed by the Tribunal will become enforceable upon all the parties to the dispute. Therefore, if the reference becomes-, bad or the Government is not appropriate, then the dispute which has been adjudicated by the Tribunal and/or an award passed will be nullity. ( 4 ) SECONDLY, the workman being a medical representative cannot be said to be a 'workman' as per Section 2 (d) (i) of the Sales Promotion employees (Condition of Service) Act, 1976, Section 2 (d) and Clauses (1)and (11) with explanation are- quoted hereunder: " (d) "sales promotion employee" means any person by whatever name called (including an apprentice) employed or engaged in any establishment for hire or reward to do any work relating to promotion of sales or business," or both, but does not include any such person - (i) who, being employed or engaged in a supervisory capacity, draws wages exceeding sixteen hundred rupees per mensem; or (ii) who is employed or engaged mainly in a managerial or administrative capacity. Explanation - For the purposes of this clause, the wages per mensem. of a person shall be deemed to be the amount equal to thirty times this total wages (whether or not Including, or comprising only of, commission) in respect of the continuous period of his service falling within the period of twelve months immediately proceeding the date with reference to which the calculation is to be made, divided by the number of days comprising that period of service". ( 5 ) ACCORDING to me, the first point is a question of lack of jurisdiction whereas second point is a matter of judicial investigation by the Court having jurisdiction. ( 6 ) THE parties wanted, to contest on the question of law without filing affidavits which was allowed. According to Mr. Chatterjee, in view of ratio of AIR 1971 SC 740 [hakam Singh vs. M/s. Gammon (India} Limited] parties cannot confer jurisdiction by agreement. But when two or more Courts have jurisdiction one of the Courts alone can try dispute and it is not contrary to public policy and does not contravene the conditions of the contract. Act. By citing AIR 1985 Cal 89 (Sm. Kumud Agarwatta vs. Fertilizer Corporation of India Ltd.) he contended that it is true that it is not open to the parties by agreement to confer jurisdiction on a Court which does not possess any or to take away the jurisdiction vested in it by any statute. But when two or more Courts have concurrent jurisdiction to entertain a suit or a proceeding, the parties by agreement cannot affect the jurisdiction of any of such Court. Inspite of ouster clause in the agreement, the Courts concerned continue to have such inherent jurisdiction in the matter. But the Court excludes by the agreement, refuses to entertain the suit and/or the proceedings not due to any lack of jurisdiction but on the principle that contract is binding on the parties and they must abide by the same. ( 7 ) ON the other hand, Mr. Ashis Kumar Das, Learned Counsel appealing for the State and Mrs. Shukla Kabir, Learned Counsel appearing for the workman, vehemently opposes such contentions by making; interpretation of law and by placing several judgements in favour of their respective cases. Mr. Das firstly distinguished the judgement of the Single judge of this Court reported in AIR 1985 Cal 89 (supra ). He said that on the basis of paragraph 6 of the judgement when two or more Courts have concurrent jurisdiction to entertain a suit or proceeding the parties by agreement cannot affect the jurisdiction of any of such Courts. Inspite of ouster clause the Court concerned continues to have inherent jurisdiction in the matter but refuses to entertain, not due to any lack of jurisdiction but on the principle of binding contracts. Inspite of ouster clause the Court concerned continues to have inherent jurisdiction in the matter but refuses to entertain, not due to any lack of jurisdiction but on the principle of binding contracts. According to him, three things are to be specifically dealt with i. e. (i) situs of employment; (ii) substantial part of cause of action; (iii) receipt of the party where the order was communicated. He has drawn my attention to sub sections (iv) and (v) of Section 12 of the Industrial Disputes Act, 1947. It says that if no settlement is arrived at, the Conciliation Officer may send the matter to the appropriate Government with a full report setting forth the steps taken by him far ascertaining the facts and circumstances relating to the dispute etc. and the facts and circumstances why a settlement could not be arrived at. Sub Section (5) says if on a consideration of the report the appropriate Government is satisfied that there is a rase for reference to the Board or court or tribunal it may make such reference. However, according to me, the last part of Sub-section (5) of Section 12 of the Act is very relevant for the purpose of due consideration which speaks as follows : "where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefore. " mr. Das cited a judgment reported in 2003 LLR 52 (Neslin Joseph prim vs. P. O. , Central Government Industrial Tribunal-cum-Labour Court. Chennai and Anr. ). ( 8 ) I find 6mm the Judgement of the Single Judge of the Madras High court that an order of the Tribunal was set aside therein when such tribunal held that it had no jurisdiction to entertain the cause since the Tribunal or the Labour Court of Chennai had no jurisdiction in respect of the matter. Therefore, the reference is bad. Factually, the management bad taken the piea therein that they had no office at Chennai but at delhi It was also held therein that the industrial Tribunal had no right to do decide pretinnnary issue but to decide a dispute comprehensively. The court held that the workman and his posting anywhere in India are crucial factors. ( 9 ) HE further cited a judgement reported in 2003 (1) CLR 241 (Siemens lid. The court held that the workman and his posting anywhere in India are crucial factors. ( 9 ) HE further cited a judgement reported in 2003 (1) CLR 241 (Siemens lid. vs. Presiding Officer, Additional Industrial Tnbunalcum Additional labour Court Hyderabad and Anr]. There he contended that question of territorial jurisdiction also arose In a matter before a Single Judge of andhra Pradesh High Court. Groat an oider of the Labour Court. Such labour Court held on merit and granted relief and reinstatement in favour of the workman overreaching the objection of the jurisdiction raised by the management. The High Court held that tbe Labour Court, Hyderabad. bad no jurisdiction as the situs of employment was paramount in raising ihe industrial dispute. The worker was not of a Hyderabad establishment. Therefore, the judgement and order passed by the Labour Court is without jurisdiction in the eye of law. ( 10 ) HE further relied upon 2000 (84) FLR 162 (National Engineering industries Ltd. us. State of Rajasthan and Ors.) to establish that the Tribunal cannot go beyond the scope of the reference. ( 11 ) LASTLY, he contended that the Conciliation Officer had also no power to adjudicate this issue whether such question could be adjudicated by him or not. However, as against a question as to whether principle of code of Civil Procedure applies in case of industrial disputes or not he answered affairmatively. ( 12 ) MRS. Shukla Kabir appearing for the workman firstly contended that duty of the Conciliation Officer is to conciliate and not to adjudicate. Here, in this case the Conciliation Officer himself took up the point of territorial jurisdiction and referred the matter to the appropriate government to take the steps. The workman was all along in the sence in the State of West Bengal. After his discharge from the service the contract has no force. Section 12 (4) is not a case of reference. The petitioner is in an unequal bargaining position with the management such agreement has no force immediately after discharge of the workman from the service. ( 13 ) HE relied upon a judgement reported in 1984 LAB. I. C. 1251 (Paritosh Kumar Pal vs. State of Bihar and Ors. Section 12 (4) is not a case of reference. The petitioner is in an unequal bargaining position with the management such agreement has no force immediately after discharge of the workman from the service. ( 13 ) HE relied upon a judgement reported in 1984 LAB. I. C. 1251 (Paritosh Kumar Pal vs. State of Bihar and Ors. } whereunder it was held by the Full Bench of Patna High Court that the situs of the ernployment of the workmen would determine the territorial jurisdiction of the Tribunal in case of industrial dispute arising from the termination of such employment. The three clear tests for determining the jurisdiction will be applicable in coming to a conclusion which are (1} where does the termination of service has been operated ? (ii) is there same nexus between the industrial dispute arising from termination of service of the workmen and the territory of the State? (iii) that the well-known test of jurisdiction of the Civil Court including the residence of the parties and the subject matter of the dispute substantially arising therein would be applicable ( 14 ) MR. Chatterjee. on the other hand, cited a judgment of 1976 LAB. LC. 202 (Swapan Das Gupta and Ors. vs. The First Labour Court of West Bengal and Ors.) whereunder a Bench of this Court held where there is question of jurisdictional facts the same can be reviewed by a Court sitting m the writ jurisdiction. ( 15 ) HE further said by citing 1979 (3) FLR 122 (American Express international Banking Corporation vs. Union of India and Ors. } that where necessary opportunities should be given to the management by the appropriate Government before raising any industrial dispute. Such opportunities not having been given the order of reference is liable to be quashed. ( 16 ) ACCORDING to me. the question of territorial jurisdiction arid question ot forum selection clause are totally distinct and different. The exclusion of one of the two or more available jurisdictions by agreement is the forum selection clause, This is not a case of not having territorial jurisdiction. It is a case of exclusion of jurisdiction to which no argument has been put forward by the respondents save and except thai when the petitioner has been discharged from the service he is not bound by the terms and conditions of the service. It is a case of exclusion of jurisdiction to which no argument has been put forward by the respondents save and except thai when the petitioner has been discharged from the service he is not bound by the terms and conditions of the service. According to me, such analogy cannot be acceptable. For an example, in case of termination or publication of contract can be adjudged by an Arbitrator who was apointed under the very terms and conditions of the agreement. I have given this example to spell out that the agreement includes the cause of termination, discharge etc. and adjudication thereto. Merely because one has been expelled from the service he cannot say that he is not bound by the contract. In other way round can it be said that the workman is not entitled to any terminal benefit since the agreement of service is not subsisting? Therefore, it cannot be said to be one way traffic. Situs of employment is substantial part of cause of action. Residence of the party where communications were made and the situs are governing the territorial jurisdiction of a court or Tribunal which is far from the principle of forum selection clause. Factually it is not out of place to mention that the Conciliation Officer holds that the appointment letter provides a jurisdiction clause wherein Bombay Courts have jurisdiction for all disputes pertaining to appointment, tennination, registration, discharge or dismissal. The. workman is signatory to the service conduct agreement. He was not only posted in Calcutta but he was posted at Patna. In such circumstances, whether the appropriate government merely by issuing order of reference can discharge the work as an administrator or he will apply his mind by calling the parties and come to a final conclusion of the appropriate question? Section 12 (5) clearly says that if, on a consideration of the report of a Conciliation Officer the appropriate government is satisfied that there is a case of reference to a Board, Court, tribunal etc. It may make such reference. Similarly, where the appropriate government does not make such a reference it shall record and communicate to the parties concerned reasons therefore. Hence, It cannot be said that the appropriate government is a simpliciter administrator to carry out the report of the conciliation. It may make such reference. Similarly, where the appropriate government does not make such a reference it shall record and communicate to the parties concerned reasons therefore. Hence, It cannot be said that the appropriate government is a simpliciter administrator to carry out the report of the conciliation. Had it been so, why the question which has been raised by the Conciliation Officer has not been considered? be that as it may since one of the disputes in respect of the jurisdiction of the court is pending before the Division Bench for adjudication and when one of my brother Judges held in 2001 (1) CHN 333 (Menon Limited vs. State of West Bengal and Ors.) that the appropriate government does an administrative act I am of the confirmed opinion that the matter should be placed before the Division Bench of this High Court for the purpose of determining the following questions : (a) Whether the appropriate Government discharges function like post office in referring the matter to the Board, Court, Tiibunal etc. or carry out the functionaries to verify the report of the conciliation Officer and if necessary, able to hear out the parties before making reference under Section 12 (5) of the Industrial disputes Act? (b) In otherwords, when appropriate government is entitled to refer the matter to Board, Court, Tribunal etc. or not to refer what would be the basis of such consideration - even thereafter can it be said such government operates as administrator simpiicitor? ( 17 ) SO far as the other points are concerned those are incidental to the order to be passed by the Division Bench. ( 18 ) ACCORDINGLY the matter is referred to the Hon"ble Chief Justice for the purpose of reformed or for formation of the appropriate Division Bench for adjudication, through the Registrar, Original Side, who is hereby directed to take appropriate steps as expeditiously as possible. ( 19 ) XEROXED certified copies of this judgment will be supplied to the parties within seven from the date of putting requisites forwarding up and completion of the order and certified copy of this judgment.