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2012 DIGILAW 128 (KER)

T. N. v. Nair VS Zonal Manager(West)

2012-01-25

THOMAS P.JOSEPH

body2012
Judgment : Thomas P. Joseph, J. 1. Heard learned counsel for appellant. The appeal is admitted on the following substantial questions of law: (i) Whether findings of the Courts below that civil court has no territorial jurisdiction to try the case is legally sustainable? (ii) Whether findings of the Courts below that the dispute is an Industrial Dispute falling under the provisions of Industrial Disputes Act and therefore civil courts jurisdiction is barred under the provisions of I.D.Act is legally correct? Respondents appear through standing counsel. 2. Since dismissal of the suit is on the ground of lack of territorial jurisdiction before evidence is recorded and as agreed by counsel on both sides, records are not called for. Instead, I have gone through a copy of the plaint given to me by the learned counsel for appellant. 3. Appellant, as she pleads was working as Assistant Manager (General), in the office of second respondent at Ahammedabad, Gujarat and retired as such on 30.06.1997. According to her, she opted for service under the Food Corporation of India Rules (for short, "the FCI Rules") and hence came under the Contributory provident fund scheme. On retirement she was entitled to get Rs.2,84,773.74/-by way of provident fund. Of the said amount, Rs.2,20,419.00/- was paid to her on 20.08.1997. She demanded payment of the balance amount. Thereon, a further payment of Rs.33,355/- was made in June, 1997 leaving a further balance of Rs..25,527.19/-. Appellant filed the suit in the Court of learned second Additional Munsiff, Thrissur claiming the said balance amount and penal interest @18% per annum from 30.06.1997. Certain other claims are also made by way of interest for delayed payment of the amount. Appellant who is residing at Kalpaka Gardens, Poonkunnam, Thrissur averred in paragraph 13 of the plaint that cause of action for the suit arose on 30.06.1997, the date on which she retired from the service and the subsequent dates referred to therein within the territorial jurisdiction of learned Munsiff. 4. Respondents resisted the suit on various grounds including lack of territorial jurisdiction for the Court. They contended that the suit ought to be filed at Ahammedabad in Gujarat (wherefrom appellant retired). They also contended that the suit is barred since the dispute is one coming under the Industrial Dispute Act (for short, "the I.D Act"). 5. 4. Respondents resisted the suit on various grounds including lack of territorial jurisdiction for the Court. They contended that the suit ought to be filed at Ahammedabad in Gujarat (wherefrom appellant retired). They also contended that the suit is barred since the dispute is one coming under the Industrial Dispute Act (for short, "the I.D Act"). 5. Learned Munsiff considered the preliminary issue and held that he has no territorial jurisdiction to entertain the suit since appellant retired from Ahammedabad in Gujarat and since the dispute comes within the purview of the I.D Act. The suit was dismissed. Learned first Additional District Judge, Thrissur has confirmed that decision in A.S.No.364 of 2004. Hence the second appeal urging the above substantial questions of law. 6. Learned counsel for appellant has contended, placing reliance on the decision in Pillai K.D Vs. Chairman, ONGC and Ors. (ILR 2008(3) Kerala 591) that provident fund is payable at the place where the retiree resides after retirement and hence the Court within whose jurisdiction appellant-retiree resides has got jurisdiction to entertain the suit. It is also contended that since the appellant retired as Assistant Manager and was engaging in managerial work, is not a 'workmen' as defined in Sec.2(s) of the I.D Act and hence dispute between appellant and respondents is not an 'industrial dispute' as defined in Sec.2(k) of the said Act. 7. Learned counsel for respondents has brought to my notice the decision of the Supreme Court in R.S.R.T.C and Ors. Vs. Deen Dayal Sharma (2010 KHC 4316) and contended that jurisdiction of the Civil Court is dependent on the nature of right sought to be enforced. 8. So far as issue regarding territorial jurisdiction is concerned, it is not disputed that appellant resides within the territorial jurisdiction of learned Munsiff before whom the suit was instituted. Learned Munsiff took the view that since appellant retired at Ahammedabad, he has no jurisdiction to entertain the suit. 9. In the decision relied on by learned counsel for appellant, though in relation to payment of pension and jurisdiction of the High Court to invoke under Art.227 of the Constitution, it is held that pension is payable at the place where the pensioner resides after retirement. There is no reason why that principle should not apply in the matter of payment of provident fund. There is no reason why that principle should not apply in the matter of payment of provident fund. The decision referred above has to be applied in the matter of payment of provident fund also. As above stated, appellant, after retirement is residing within the territorial jurisdiction of learned Munsiff. The provident fund was payable at the place where appellant is residing after retirement. 10. Sec.20 of the Code of Civil Procedure (for short, "the Code") deals with suits not otherwise provided for in Secs.15 to 19 and clause (c) says that the suit may be instituted in a Court within the local limits of whose jurisdiction the cause of action, wholly or in part arises. Referring to the decision in Pillai K.D Vs. Chairman, ONGC and Ors. (supra) I stated that the principle stated therein must apply to payment of provident fund also. If that be so, non payment of the provident fund as pleaded by the appellant at her place of residence is part of cause of action pleaded by appellant and that having arisen within the local limits of jurisdiction of learned Munsiff, the said Court has jurisdiction to entertain the suit. Finding to the contrary cannot be sustained. 11. Coming to the next question whether the civil court has jurisdiction to entertain the suit in view of provisions of the I.D Act, as aforesaid, the claim is for payment of balance amount of provident fund and for damages by way of interest on account of the delayed payment. The Supreme Court in R.S.R.T.C and Ors. Vs. Deen Dayal Sharma (supra) referring to Sec.2(k) of the I.D Act has held that nature of right sought to be enforced is decisive in determining whether jurisdiction of the Civil Court is excluded or not. Sec.2 (k) of the Act defines 'industrial dispute' and it takes in a dispute between the employer and workman. 'Workman' is defined in Sec.2(s) and sub clause (iii) excludes persons who are employed mainly in managerial or administrative capacity while sub clause (iv) excludes persons employed in a supervisory capacity drawing wages exceeding Rs.1600/- per month. 12. In this case, it is not very much in dispute that appellant was working as Assistant Manager ie, in a managerial, administrative or supervisory capacity. She was drawing more than Rs.10,000/- per month as salary. 12. In this case, it is not very much in dispute that appellant was working as Assistant Manager ie, in a managerial, administrative or supervisory capacity. She was drawing more than Rs.10,000/- per month as salary. Clause (iii) and (iv) of Sub Sec.(s) of Sec.2 of the I.D Act exempt appellant from the category of workman. Hence the dispute that has arisen between the appellant and respondents is not one which is entertainable under the I.D Act. The finding of courts below on that count also is erroneous. 13. The above discussions leads me to the conclusion that learned Munsiff, Thrissur has jurisdiction to entertain the suit. Substantial questions of law framed are answered above. The second appeal is allowed. Judgment and decree of learned second Additional Munsiff, Thrissur in O.S.No.2652 of 2001 and of learned first Additional District Judge, Thrissur in A.S.No.364 of 2004 are set aside. It is found that learned Munsiff has jurisdiction to entertain the suit. Learned Munsiff is directed to proceed with the trial and disposal of the suit as provided under law. Parties shall appear before learned Munsiff on 29.02.2012.