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2017 DIGILAW 1448 (GAU)

Montosh Mazumder v. State of Assam

2017-11-16

ACHINTYA MALLA BUJOR BARUA

body2017
ORDER : 1. Heard Mr. P.K. Tiwari, learned senior counsel for the petitioner. Also heard Mr. J.S. Bhattacharjee, learned counsel appearing for the respondent-workmen being represented by the President of the NERAMAC Workers Union, Tripura State Committee, Tripura as well as Mr. D.C. Bora, learned counsel appearing on behalf of respondent No. 2, being the Central Government Industrial Tribunal-cum-Labour Court at Guwahati. 2. The respondent No. 1 is representing the cause of 32 Nos. of employees of the NERAMAC for the purpose of pursuing with their claim of regularization in service. The names of the 32 employees find place in paragraph 1 of the claim statement of the respondent-workers union made before the learned Central Government Industrial Tribunal-cum-Labour Court, hereinafter referred as Labour Court. It is noticed that the 32 employees also includes at least 4 employees from the Zonal Office in Assam. It is stated by Mr. P.K. Tiwari, learned senior counsel that apart from the said four employees, some of the other 28 employees, at different stages of their service career, were posted in the territory outside the State of Tripura. 3. From the award passed by the learned Labour Court, which has been assailed in this writ petition, it is noticed that there is a categorical finding which is admitted by all the parties that present sanctioned strength of NERAMAC is 272 and against the 272 sanctioned strength, presently 42 employees are working on a regular basis. Accordingly, the claim of the respondent-workmen being for a regularization of their services, it is the stated stand of the petitioner that in the event of there being any regularization of the 32 employees, such regularization can take place in any of the balance 230 sanctioned posts, which are in fact spread over the entire Northeastern region. In other words, it is the case of the management that even in the event of there being an order of regularization, such regularization can take place in any of the posts and it is not necessary that the regularization would be made only against the sanctioned post available within the State of Tripura. 4. In the aforesaid factual background, an issue of maintainability of the writ petition has been raised by the respondent-workmen that the Gauhati High Court does not have the territorial jurisdiction to entertain this writ petition. 4. In the aforesaid factual background, an issue of maintainability of the writ petition has been raised by the respondent-workmen that the Gauhati High Court does not have the territorial jurisdiction to entertain this writ petition. The basis of such contention by the respondent-workmen is that the genus of the claim of the workman is from the State of Tripura and therefore, the cause of action for the dispute as regards the regularization had arisen in the State of Tripura. It is the submission of the learned counsel that although the location of the Labour Court is at Guwahati, but the said Labour Court having decided an issue which pertains only to the State of Tripura, therefore, it is to be construed that the cause of action for the entire dispute, including the cause of action for making the reference is from the State of Tripura. Accordingly, it is the submission of the learned counsel for the respondent-workmen that as the cause of action for the dispute had arisen in the State of Tripura, therefore, an adjudication thereof by the Labour Court upon such dispute is also to be construed to be a cause of action which had arisen wholly in the State of Tripura. 5. In order to substantiate his submission, Mr. J.S. Bhattacharjee, learned counsel for the respondent-workmen relies upon the pronouncement of the hon'ble Supreme Court rendered in Kusum Ingots & Alloys Ltd. v. Union of India and, (2004) 6 SCC 254 , wherein, in paragraph 24, it has been held that if the cause of action arises in part within the specified areas in Oudh it would be open to the litigant who is the dominus litis to have his forum conveniens and the litigant has the right to go to a court where a part of his cause of action had arisen and further that the Courts will find out in each case whether the jurisdiction is rightly attracted by the alleged cause of action. Reliance has also been made to paragraph 30 of the judgment wherein, it has been held that even if a small part of the cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit and in appropriate cases, the High Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. Further reliance has also been made to paragraph 26 of the said judgment, wherein, it is held that framing of a statutory rules or issuing an executive order or instruction would not confer jurisdiction upon a court only because of the situs of the office of the maker thereof is within its jurisdiction. 6. Further the learned counsel for the respondent also relies upon a judgment of the hon'ble Manipur High Court rendered in R. Rajasekaran v. Union of India, 2016 Legal Eagle (Mani) 145 wherein, in paragraph 14, it is held that in order to maintain a writ petition, the petitioner has to establish that a legal right claimed by him has prima facie either been infringed or is threatened to be infringed by the respondent within the territorial limits of the courts jurisdiction. Reliance has also been made on the decision of the hon'ble Calcutta High Court rendered in Scania Steels & Power Ltd. v. State Bank of India, 2016 Legal Eagle (Cal.) 493 wherein, it has been held that although cause of action has not defined in any statute, but it has, however, been judicially interpreted, inter alia, to mean that every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. By relying upon the aforesaid proposition of law, Mr. J.S. Bhattacharjee, learned counsel for the respondent-workmen submits that the entire cause of action for the dispute at hand had occurred in the State of Tripura and, therefore, the writ petition against the award is not maintainable before the Gauhati High Court, inasmuch as the Gauhati High Court does not have territorial jurisdiction over the State of Tripura. 7. Mr. J.S. Bhattacharjee, learned counsel for the respondent-workmen submits that the entire cause of action for the dispute at hand had occurred in the State of Tripura and, therefore, the writ petition against the award is not maintainable before the Gauhati High Court, inasmuch as the Gauhati High Court does not have territorial jurisdiction over the State of Tripura. 7. Mr. J.S. Bhattacharjee, learned counsel for the respondent-workmen submits in the alternative that even if it is construed that a small part of the cause of action may have arisen beyond the territory of the State of Tripura, the same by itself would not be sufficient to arrive at a conclusion that a High Court other than the High Court of Tripura will have jurisdiction to decide the matter and for such submission, the learned counsel relies upon paragraph 30 of the decision of the hon'ble Supreme Court in Kusum Ingots & Alloys Ltd. case (supra). 8. Per-contra Mr. P.K. Tiwari, learned senior counsel for the petitioner relies upon the factual basis of the case as already been alluded hereinabove and states that firstly the entire cause of action had not arisen in the State of Tripura and secondly, whatever the cause of action had arisen beyond the territory of the State of Tripura, is substantial and is not a small part of the cause of action. Learned senior counsel on the other hand states that a substantive part of the cause of action had arisen beyond the State of Tripura. In order to substantiate the same, learned senior counsel firstly points out that out of the 25 surviving claimants for the regularization, at least 4 of them are from outside the territory of the State of Tripura and even in respect of the other 21, some of them had at some point of time or the other during their period of engagement were serving outside the territory of the State of Tripura. 9. Further stand of the learned senior counsel is that in the event the aforesaid 25 employees are to be regularized in their services and the management having 230 vacancies for the purpose, which is spread all over the Northeastern Region, it cannot be said that such regularization would take place only amongst the posts available within the State of Tripura. Further stand of the learned senior counsel is that in the event the aforesaid 25 employees are to be regularized in their services and the management having 230 vacancies for the purpose, which is spread all over the Northeastern Region, it cannot be said that such regularization would take place only amongst the posts available within the State of Tripura. Accordingly, it is the submission of the learned senior counsel that even the cause of action for completing the process of regularization had arisen substantially beyond the territorial limits of the State of Tripura. Accordingly, Mr. Tiwari, learned senior counsel raises a contention that even the proposition of law laid down by the hon'ble Supreme Court in paragraph 30 of Kusum Ingots & Alloys Ltd. case is not applicable in the present case. In order to substantiate his case, Mr. Tiwari, learned senior counsel also relies upon paragraph 24 of Kusum Ingots & Alloys Ltd. case, wherein, it is provided that even if the cause of action arises in part, it would be open to the litigant who is dominus litis to have his forum conveniens. 10. The expression ‘dominus litis’ as per the Black Law's dictionary is defined to mean the party who makes the decision in a law suit. Again the expression ‘forum conveniens’ as per the said dictionary means the court in which, an action is most appropriately brought by considering the best interest and convenience of the parties and witnesses. 11. In the present case, it is to be understood that the petitioners having decided to pursue with this writ petition against the award of the learned Labour Court, is a dominus litis. Further a note would also have to be taken that the award of the Labour Court was passed in its place of sitting at Guwahati, where the entire records of the proceeding would be present, the respondent-workmen through their association had participated in the proceeding before the Labour Court at Guwahati without raising any question of inconvenience and also that some of the workmen whose causes are being taken up by the respondent-workmen association are also from a place outside the State of Tripura. Further it is also not iced that the registered office of the petitioner is also located at Guwahati. On the contrary, no such aspects of convenience can be noticed in respect of the respondent-workmen association. Further it is also not iced that the registered office of the petitioner is also located at Guwahati. On the contrary, no such aspects of convenience can be noticed in respect of the respondent-workmen association. When the requirement of the concept forum conveniens requires considering the best interest and convenience of the parties and witnesses, it cannot be concluded that the best interest and convenience of the parties would be served only when the writ petition is preferred before the hon'ble High Court at Tripura. Infact, by taking into consideration the rival submission made, it further cannot be concluded that the best interest and convenience of the respondent-workmen can only be achieved if the writ petition is taken up in the hon'ble High Court at Tripura. Accordingly, the aspect of the dominus litis to have his forum conveniens had preferred the writ petition before this court cannot be faulted out. 12. The proposition of law laid down in paragraph 30 of the Kusum Ingots & Alloys Ltd. case also refers to a decision of the hon'ble Delhi High Court rendered in New Horizons Ltd. v. Union of India, AIR 1994 Del. 126 , and the learned senior counsel relies upon the pronouncement made in paragraph 33 of the said judgment. In paragraph 33, a situation was visualized where the State of Rajasthan had acquired certain land in the State of Rajasthan and the notice thereupon was served on the respondent owner who resides in the State of West Bengal and it was concluded that in the aforesaid situation, the Calcutta High Court would not have jurisdiction over the matter. Another situation was visualized where the respondent Nos. 1, 2 and 4 therein, are from Delhi but the respondent No. 3 who was a General Manager of the Department of Central Government was based in Hydrabad and the entire records of the dispute were available at Hydrabad. In the given circumstance, the hon'ble Delhi High Court was of the view that certainly a direction could have been issued to approach the Andhra Pradesh High Court which also has the jurisdiction in the matter but as the matter was heard at length, therefore, such option was declined. In the given circumstance, the hon'ble Delhi High Court was of the view that certainly a direction could have been issued to approach the Andhra Pradesh High Court which also has the jurisdiction in the matter but as the matter was heard at length, therefore, such option was declined. Reliance has also been made to a Division Bench judgment of this court rendered in State of Maharasthra v. State of Arunachal Pradesh, (2003) 2 GLR 195/2003 2 GLT 139, wherein, a decision of the hon'ble Supreme Court rendered in ONGC v. Utpal Kumar Basu, (1994) 4 SCC 711 was taken into consideration and based upon the averments made in the pleadings a conclusion was arrived that a part of the cause of action had arisen within the territorial jurisdiction of this court. The said principle is also reflected in paragraph 6 of the decision of the hon'ble Supreme Court in Utpal Kr. Basu case (supra), wherein, it has been provided that the question whether the High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, without embarking upon the truth or otherwise whereof. The relevant paragraph of Utpal Kr. Basu is as follows: “6. Therefore, in determining the objection of lack of territorial jurisdiction in the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. It other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition, therefore, the question whether in the instant case the Calcutta High Court had jurisdiction must be decided on the facts pleaded in the petition, therefore, the question whether in the instant case the Calcutta High Court had jurisdiction to entertain and decide the writ petition in question even on the facts alleged must depend upon whether the averments made in paragraph 5, 7, 18, 22, 26 and 43 are sufficient in law to establish that apart of the cause of action had arisen within the jurisdiction of the Calcutta High Court.” 13. By relying upon the aforesaid proposition of law, Mr. P.K. Tiwari, learned senior counsel, by referring to the averments made in the claim petition of the workmen as well as the submission made in paragraph 8 of the rejoinder affidavit of the writ petition and the conclusion of the learned Labour Court in its award submits that the Gauhati High Court also has its jurisdiction over the matter to decide on the legality and correctness of the award passed by the learned Labour Court in Reference Case No. 24/2012. 14. From the aforesaid propositions of law relied upon by the learned senior counsel, it is noticed that a High Court also has the territorial jurisdiction, if it can be established that the whole cause of jurisdiction of the dispute had not arisen within the territorial jurisdiction of some other High Court. In the instant case, it has been clearly established that at least a substantial part of the cause of action had arisen within the jurisdiction of this court inasmuch out of the 25 employees who are claiming regularization, at least four of them are not located within the territorial jurisdiction of the State of Tripura, secondly amongst the other 21, some of them have also periodically served in locations which were outside the State of Tripura and thirdly, in the event, regularization is allowed in respect of such employees, they can be regularized in any of the 230 available sanctioned vacancies, which are spread out all over the Northeastern region and, therefore, the likelihood that they would be regularized at a location outside the State of Tripura, cannot be wholly ruled out. 15. Further by taking into consideration the status of the petitioner being the dominus litis in the present petition and further the entire management of the petitioner being located within the territorial jurisdiction of this court and also the records of the matter being also available here, it cannot be said that the said submission of the petitioner as regards the dominus litis claiming a forum conveniens is to be rejected. Mr. Tiwari, learned senior counsel also relies upon paragraph 8 of the rejoinder affidavit and contends that apart from the above, there are several other factors which are enumerated in paragraph 8 thereof which are also supports the contention of the petitioner that this court has territorial jurisdiction to decide the matter. 16. Mr. Tiwari, learned senior counsel also relies upon paragraph 8 of the rejoinder affidavit and contends that apart from the above, there are several other factors which are enumerated in paragraph 8 thereof which are also supports the contention of the petitioner that this court has territorial jurisdiction to decide the matter. 16. In view of the above, the question of maintainability of the writ petition raised by the respondent on the ground of territorial jurisdiction is found to be unacceptable. The materials on records clearly establishes that at least some part of the cause of action had clearly arisen within the territorial jurisdiction of this court and by following various pronouncements of the hon'ble Supreme Court and also the Division Bench of this court, it cannot be concluded that no part of the cause of action had arisen within the jurisdiction of this courts so as to render the writ petition to be not maintainable. The question of maintainability raised is answered accordingly. 17. Mr. J.S. Bhattacharjee, learned counsel has also raised an issue that the reference having been made by the Ministry of Labour, Government of India with reference to a dispute pertaining to the State of Tripura and the Labour Court at Guwahati having decided the said issue has to be construed that such decision pertains only to the State of Tripura. The said submission is also found to be inappropriate in view of the aforesaid finding that the Labour Court had answered the reference pertaining to an issue where certain workmen are also from the States other than the State of Tripura and secondly, a categorical finding had also been arrived that even in respect of the employees who are from the State of Tripura, some of them at some point of time had served outside the State and in the event of there being a regularization, there is a likelihood which cannot be ruled out that they will be regularized against posts which would be located outside the State of Tripura. Therefore, it cannot be said that the cause of action of the dispute pertains only to the State of Tripura and not of any place outside the State of Tripura. In view of the above, the issue of maintainability raised by the respondent is refused. Writ petition to be heard on its own merit. List this matter on 8.2.2018.