ICPA HEALTH PRODUCTS LIMITED vs STATE OF WEST BENGAL & ORS.

IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE

Present:
The Hon’ble Justice Rai Chattopadhyay

WPO 737 of 2016

ICPA Health Products Limited
Vs.
The State of West Bengal & Ors.


For the petitioner : Dr. Samir Chakraborty
: Mr. Abhijit Biswas
: Mr. B. Sengupta




For the State : Ms. Tapati Samanta
: Mr. Biswajit Mukherjee
: Mr. S. Debnath

For the respondent No. 2 : Mr. Balaram Patra
: Mr. Suvadip Bhattacharjee

Judgment on : 02.09.2026

Uploaded on : 02.09.2026

Rai Chattopadhyay, J. :-
1. This writ Court faces two determinable issues in the instant
writ petition, in which the petitioner/company challenges an
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Award of the 7 Industrial Tribunal, West Bengal, dated
March 31, 2016 in Case No.16/1008(d) of 2012. Firstly,
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whether the 7 Industrial Tribunal had territorial
jurisdiction to entertain and adjudicate the industrial
dispute or the impugned Award suffers from jurisdictional
error and thus liable to be set aside. Secondly that whether
the Tribunal’s findings as regards the illegality and
impropriety of the domestic enquiry procedure, resulting
into dismissal of the private respondent, suffers from

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unreasonableness, perversity and is thus illegal and liable to
be set aside.
th
2. As stated earlier, an Award of the 7 Industrial Tribunal,
West Bengal, dated March 31, 2016, is under challenge in
the instant writ petition. The Tribunal has considered the
following 4 issues, in the same:
 “ (1) Is the case maintainable?
 (2) Has the Tribunal territorial jurisdiction to adjudicate
the dispute as raised by the applicant?
 (3) Is the order of dismissal of the applicant, Sri Tapan
Chatterjee w.e.f. 24.03.2011 by the management of O.P.
Company justified and legal?
 (4) To what relief, if any, is the applicant entitled? ”
Regarding issues No. 1 and 2, the Tribunal has held that the
same has territorial jurisdiction duly vested in it and the
instant industrial dispute is maintainable before it. As
regards issues No. 3 and 4 the Tribunal has held that
dismissal of service of the private respondent was illegal and
directed for his reinstatement with payment of back wages
from the date of his alleged illegal termination, till the date
of resumption of service by the respondent. The writ
petitioner/company, being aggrieved with such Award of the
Tribunal, has filed the instant writ petition. The petitioner
has prayed for the relief inter alia that the Award of the
Tribunal dated March 31, 2016, may be set aside
3. This case has a chequered background. Facts relevant for
determination of issues involved in this writ petition, may be
narrated in a nut-shell. From February 1, 1990, the private
respondent was appointed as a Medical Representative by
the writ petitioner/pharmaceutical company. The
appointment letter was formally issued on February 8, 1990.
His initial Head Quarter was stated to be Imphal. The said
appointment letter of the private respondent was issued
from the company's registered office at Mumbai. The
management subsequently relied upon a clause in the
appointment letter providing that, in case of dispute,

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Bombay/Mumbai would have jurisdiction. On June 1, 1991,
his service was confirmed by the company. Dispute arose on
2009. On the allegation of various irregularities, financial
and otherwise, the petitioner/company issued a letter dated
March 29, 2010, intimating that the respondent/employee
should attend a preliminary enquiry to be held on April 9,
2010.
4. On the said stipulated day the preliminary enquiry was
held. The management subsequently stated that the
preliminary enquiry disclosed sufficient grounds for issuing
a formal charge-sheet. The employee, on the other hand,
subsequently alleged that the person who conducted the
preliminary enquiry ought not to have thereafter acted as
the Enquiry Officer because of apprehended bias. Be that as
it may, an order of suspension was issued thereafter against
the private respondent, on April 13, 2010. On April 16,
2010, a formal charge-sheet was issued containing eight
principal charges. These included alleged false reporting of
work on February 28, 2010, negligence concerning
stockists, failure to maintain proper contact with
doctors/stockists, discrepancies in Daily Call Reports,
failure to follow the approved itinerary, delayed leave
application and other alleged acts of negligence/misconduct.
On April 24/28, 2010, the employee submitted his
explanation to the charges. He denied misconduct and
attributed the disputed entries to inadvertence. He also
alleged that reports relied upon by the management had not
been supplied to him and disputed the substantive
allegations. He also wrote letter of objection dated April 26,
2010, against the suspension order.

5. On May 19, 2010, the company issued notice fixing the
domestic enquiry on June 2, 2010, appointing one Mr.
Dwarkanath N. Waykul as the Enquiry Officer and Mr. P.
Bhaskaran as the Presenting Officer. Vide letter dated May
27, 2010, the private respondent/employee requested that
the enquiry be held in West Bengal, where he was employed,
and also sought permission to be represented by a legal
representative. However, on the scheduled date, the enquiry
commenced at the company's Head Office in Mumbai. The

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Enquiry Officer rejected the employee's request to shift the
venue to West Bengal. The employee alleged that this caused
prejudice to him, because his witnesses were available in
West Bengal and could not be taken to Mumbai. Financial
stringency has been said to be reason for the same, whereas
it has been alleged too, that in spite of prayer made to this
effect, the company never bore costs of bringing the
witnesses to Mumbai, by the respondent/employee. On
June 10, 2010, the employee informed the company that he
wished to be represented by Sri Sasanka Mouli Roy and
again requested that the enquiry be held in West Bengal. On
July 15, 2010, the employee appeared in the enquiry and
again sought payment of travelling and accommodation
expenses for his representative. On August 16, 2010, the
employee informed the Enquiry Officer that he could not
attend the enquiry because his Federation had called a two-
day strike on 17 and 18 August 2010.
6. On the next date fixed that is, on August 19, 2010, the
employee was absent at Mumbai. According to his case, the
Enquiry Officer proceeded ex-parte and took several
documents on record without formal proof through
witnesses. On September 6, 2010, the company changed the
Presenting Officer and appointed Mr. Ramesh J. Virdikar in
place of Mr. P. Bhaskaran. The employee appeared on
September 8, 2010 with his defence representative, Mr. T.V.
Sridhar. He protested against the procedure adopted in the
enquiry and the refusal to change the venue. His defence
representative also objected to the replacement of the
Presenting Officer by an advocate. On September 24, 2010,
the employee filed a written objection concerning the
appointment of the new Presenting Officer and other aspects
of the enquiry. The Enquiry Officer rejected the objections.
On November 9, 2010, the defence representative partly
cross-examined the management witness. The cross-
examination later completed on December 2 and 3, 2010.
On December 29, 2010, the domestic enquiry was
concluded. The Enquiry Officer submitted his enquiry report
dated January 12, 2011, holding the employee guilty of the
charges levelled against him.

Page 5 of 24


7. The company issued a second show-cause notice dated
March 4, 2011, enclosing the enquiry report and calling
upon the employee to submit his explanation. Though on
March 23, 2011, the employee/respondent requested for
extension of time to submit his reply till April 5, 2011, the
management, without paying any heed to the said request of
the employee, issued the order of dismissal of the
respondent on March 24, 2011. Subsequently the
respondent has sent two letters of protest to the
management, on March 26 and 29, 2011.

8. Ultimately on April 21, 2011, the respondent raised an
industrial dispute before the Labour Commissioner,
Government of West Bengal, seeking intervention against
his dismissal. Conciliation proceedings followed thereafter.
On August 10, 2011, the management submitted its written
response before the Assistant Labour Commissioner,
principally objecting to the territorial jurisdiction of the West
Bengal authorities/Tribunal, relying upon the Mumbai
registered office and the jurisdiction clause in the
appointment letter. The management stated that it received
the communication at the residential address of its Zonal
Sales Manager on August 8, 2011. On September 1, 2011,
the employee submitted his counter-reply before the
Conciliation Officer, disputing the management's objection
to territorial jurisdiction and asserting that his employment
and the cause of action were substantially connected with
West Bengal. On November 11, 2011, The Conciliation
Officer issued the Form-S certificate, following which the
employee proceeded to invoke the jurisdiction of the Seventh
Industrial Tribunal, West Bengal. The employee instituted
Case No. 16/1008(d) of 2012 before the Seventh Industrial
Tribunal, West Bengal. The Seventh Industrial Tribunal
passed an Award on December 31, 2014.
9. The Tribunal's Award dated December 31, 2014, was
challenged in writ petition W.P. No. 23859(W) of 2015 and
the Single Judge passed an order on October 15, 2015,
remanding the industrial dispute to the Tribunal and
directing the Tribunal to properly deal with the jurisdiction
issue. The writ petitioner company challenged the said order

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of the Hon’ble Single Bench dated October 15, 2015 in an
appeal being MAT No. 109 of 2016. In the said appeal, the
Hon’ble Appeal Bench of this Court by an order dated
February 24, 2016, had directed the Tribunal to proceed as
per order of the Hon’ble Single Judge and pass an Award
upon completion of the entire proceeding, before March 31,
2016. The Appeal Court had kept all points of dispute
regarding jurisdiction open, to be decided by the Tribunal.
Hence, the matter was remanded back to the Tribunal and
the Tribunal proceeded with the reference from February 15,
2016 and finally, by dint of the impugned Award dated
March 31, 2016 directed as stated above.
10. The argument of the petitioner company is principally three-
fold. Dr. Samir Chakraborty, learned advocate appearing for
the petitioner has submitted firstly, that the Tribunal has
erred in coming into conclusion that it had territorial
jurisdiction to entertain and adjudicate the dispute. He has
submitted that in terms of the contract of service of the
private respondent/employee, only Courts/Tribunals in
Mumbai have exclusive jurisdiction to entertain and
adjudicate the industrial dispute in question. It is submitted
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further that even otherwise, the 7 Industrial Tribunal,
West Bengal had no jurisdiction to entertain and decide the
reference in view of jurisdictional restriction notified by the
Government of West Bengal vide Notification No. 101-
1R/12L-14/1 dated February 02, 2012. Secondly, it has
been submitted that in the event, the Tribunal has come
into conclusion about impropriety and illegality as to the
domestic enquiry procedure conducted by the company, due
to violation of principles of natural justice or otherwise, the
only avenue left is to remand back the domestic enquiry
procedure for being conducted afresh. The company’s
contention is that, there is no violation of the principles of
natural justice in conduct of domestic enquiry procedure by
the company, the respondent employee has been given
adequate and ample opportunity of defending his own case,
he has been allowed opportunity to cross-examine the
company’s witness and on every stage all documents relied
on by the company or exhibited in the enquiry proceeding
have been duly supplied to the said employee. Thus, that

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the Tribunal has erred in law in finding the domestic
enquiry procedure to be not in accordance with law and also
has erred in not remanding the case for conduct of domestic
enquiry afresh allowing opportunity to the employee
concerned which he says has not been accorded to him.
Thirdly, Dr. Chakraborty, learned advocate has submitted
that the relief granted by the Tribunal in the impugned
Award of reinstatement with full back wages is illegal and
disproportionate. He has emphasized upon the judicial
pronouncements which dealt with the issue as to whether
the relief of reinstatement can be granted but without the
benefit of full back wages. He submits that the respondent’s
case fall within the settled criteria of that standard. Hence,
the Tribunal has erred and committed illegality in awarding
reinstatement with full back wages to the respondent.
11. The argument of the writ petitioner may be summarized in
the following manner: -

Territorial jurisdiction
12. The appointment letter expressly provided that Mumbai
would have exclusive jurisdiction over all disputes arising
from the contract of service, and respondent No. 2 accepted
this condition as part of the employment contract. By
agreeing to this jurisdiction clause, the parties effectively
excluded the jurisdiction of other competent Courts and
Tribunals. Such an agreement is legally valid and is neither
contrary to public policy nor prohibited by Sections 23 or 28
of the Indian Contract Act. Although the Tribunal recognised
that both Mumbai and West Bengal could otherwise have
jurisdiction, it failed to give effect to the contractual
exclusion clause. Consequently, only the Courts or
Tribunals in Mumbai were competent to adjudicate the
dispute. The Tribunal’s decision to entertain and determine
the matter despite this clause constituted a jurisdictional
error, rendering the impugned Award without jurisdiction,
legally invalid and unsustainable in law.
th
13. The contention that the 7 Industrial Tribunal has
concurrent jurisdiction with the 1st Industrial Tribunal over

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a cause of action arising at Ariadaha (Kamarhati), merely
because it falls within Greater Kolkata, is legally untenable.
The territorial limits of the Kolkata district have been
specifically defined by Government Notifications and do not
extend to the entire Kolkata Metropolitan Area or Greater
Kolkata. The relevant notification expressly confines the
th
jurisdiction of the 7 Industrial Tribunal to the district of
Kolkata, whose boundaries are separately demarcated and
administered. The Kolkata Metropolitan Area, on the other
hand, is governed under a distinct statutory framework and
cannot be equated with the administrative district of
Kolkata. Therefore, expansion of the metropolitan area does
not automatically enlarge the territorial jurisdiction of the
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Kolkata district or the 7 Industrial Tribunal. Consequently,
in respect of a dispute arising at Ariadaha (Kamarhati), the
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7 Industrial Tribunal cannot claim concurrent jurisdiction
with the 1st Industrial Tribunal merely on the basis that the
location forms part of Greater Kolkata.

Domestic enquiry proceedings
14. The Tribunal, after finding that the domestic enquiry
conducted by the petitioner was improper and in violation of
the principles of natural justice, ought to have permitted the
petitioner to lead fresh evidence to establish the charges
against respondent No. 2 and justify the order of dismissal,
particularly since such an opportunity had been specifically
sought in the petitioner’s written statement. By failing to
grant this opportunity, the Tribunal acted contrary to settled
principles of law. Consequently, the impugned award stands
vitiated by a material error of law and is liable to be
regarded as illegal, invalid and unsustainable.

Full back wages
15. The petitioner contends that the Tribunal erred in directing
reinstatement of respondent No. 2 with full back wages and
consequential benefits, particularly when the materials on
record demonstrated a complete loss of confidence in him.
The charges levelled against the respondent, coupled with

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several complaints received from doctors, chemists and
other persons with whom he interacted while promoting the
petitioner company’s pharmaceutical products, indicated
that the employer could no longer reasonably repose trust in
him; therefore, reinstatement ought not to have been
ordered automatically. It is further contended that even
where termination is found to be illegal or unjustified,
reinstatement with full back wages is not an absolute or
automatic consequence, and the Tribunal was required to
consider all relevant circumstances before granting such
relief. The petitioner could not reasonably be compelled to
pay wages for a period during which the respondent
rendered no service or contribution, particularly when more
than five years had elapsed since his dismissal on March
24, 2011. Moreover, apart from a bare assertion in the
written statement and affidavit evidence, the respondent
produced no substantive material establishing that he
remained continuously unemployed until the award dated
March 31, 2016. Accordingly, the Tribunal ought to have
held that respondent No. 2 was not entitled to reinstatement
with full back wages and consequential benefits.
16. In support of his argument as above, Dr. Chakraborty has
relied on the following judgments –
17. Concerning argument relating to lack of territorial
th
jurisdiction of the 7 Industrial Tribunal, Kolkata –

I. Swastik Gases Private Limited v. Indian Oil
Corporation Limited (2013) 9 SCC 32 - The Apex Court
has held that a clause making an agreement “subject to the
jurisdiction of courts at Kolkata” confers exclusive
jurisdiction upon Kolkata courts, notwithstanding the
absence of words such as “alone” or “exclusive,” provided
such courts otherwise have jurisdiction. Such a clause is
valid and enforceable and does not offend Sections 23 or 28
of the Indian Contract Act, 1872.

18. Concerning argument relating to validity of domestic enquiry
-

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Karnataka State Road Transport Corporation v.
I.
Lakshmidevamma (2001) 5 SCC 433 - The Supreme Court
held that Labour Courts and Tribunals have procedural
flexibility under Section 11 of the Industrial Disputes Act,
1947, and may call for additional evidence or documents at
any stage, subject to the principles of natural justice, where
necessary to secure the ends of justice.
II. Divyash Pandit v. Management, NCCBM (2005) 2 SCC 684
- It was held that the Labour Court/Tribunal may permit
additional evidence even without a prior plea in the written
statement and, where a domestic enquiry is non est , should
ordinarily allow the employer an opportunity to prove the
charges before passing the award.
III. Kurukshetra University v. Prithvi Singh (2018) 4 SCC
483 – The Court found that the Labour Court must first
determine the validity of the domestic enquiry and, if
upheld, consider whether the punishment is proportionate
under Section 11-A of the Industrial Disputes Act, 1947.
19. Concerning argument relating as to whether the Tribunal
could award full back wages to the respondent –

I. Novartis India Limited v. State of West Bengal (2009) 3
SCC 124 - The Supreme Court held that back wages are not
automatic or a matter of right and must be determined on
the facts of each case, including the workman’s conduct.
II. Jagbir Singh v. Haryana State Agriculture Marketing
Board (2009) 15 SCC 327 - Reinstatement with back wages
is not automatic upon illegal termination; depending on the
circumstances, monetary compensation may be awarded
instead to meet the ends of justice.

III. Shriram Refrigeration Industries v. Hon’ble Addl.
Industrial Tribunal-cum-Addl. Labour Court, Hyderabad
(2002) 9 SCC 708 - Considering the loss of confidence in the
workman employed as a Security Guard, the Court confined
the relief to appropriate compensation in lieu of
reinstatement.

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Assembly of God, Hospital & Research Centre v. First
IV.
Industrial Tribunal, West Bengal 2002 (4) LLN 721 (Cal) -
Reinstatement under Section 11-A is not absolute; where it
is inexpedient or prejudicial to the establishment,
compensation may be awarded in lieu thereof.
V. Workmen v. Bharat Fritz Werner (P) Ltd. (1990) 3 SCC
565 - The Apex Court held that where the employer has lost
trust and confidence in the employee, reinstatement may
not be an appropriate remedy, and the Tribunal may instead
award compensation in lieu of reinstatement.

VI. PVK Distillery Limited v. Mahendra Ram (2009) 5 SCC
705 - The Supreme Court held that reinstatement with full
back wages is not automatic upon illegal termination and
must depend upon the facts, passage of time, and equitable
considerations of each case.
VII. Rajasthan State Road Transport Corporation, Jaipur v.
Phool Chand (Dead) through legal representatives (2018)
18 SCC 299 - Back wages are not an automatic right merely
because an employee’s dismissal or termination has been
set aside and reinstatement ordered. The initial burden lies
on the workman to plead and prove that, during the period
of unemployment; they were not gainfully employed and had
no sufficient earnings, while the employer may produce
evidence to the contrary. The Court must exercise judicial
discretion, considering the facts and evidence of each case,
and may award full or partial back wages or decline them
altogether.
VIII. Hindustan Tin Works Pvt. Ltd. v. Employees of
Hindustan Tin Works Pvt. Ltd. (1979) 2 SCC 80 - The
Supreme Court earlier held that reinstatement with full
back wages is ordinarily appropriate where termination is
illegal, particularly when arising from unfair labour practice.
However, the Tribunal erred in relying on the said principle
without considering subsequent Supreme Court decisions
modifying the legal position.

Page 12 of 24


20. Mr. Suvadip Bhattacharjee has appeared for the private
respondent No. 2/employee concerned. The argument of the
respondent may be summarised in the following manner : -
I. Non-maintainability of writ petition - The writ petition is
wholly misconceived and not maintainable, as the award
passed by Respondent No. 3 suffers from no legal infirmity,
perversity, procedural irregularity, or miscarriage of justice.
The petitioner, in effect, seeks re-appreciation of findings of
fact recorded by the competent fact-finding authority, which
is impermissible in exercise of the writ jurisdiction under
Article 226 of the Constitution of India. This Hon’ble Court,
while exercising its power of judicial review, does not sit as a
Court of Appeal and cannot examine the adequacy or
sufficiency of evidence or substitute its own findings for
those of the competent authority.

II. Territorial jurisdiction - At the time of dismissal,
Respondent No. 2 was posted at Hooghly Headquarters,
West Bengal. As the situs of employment and cause of
action, including service of the dismissal letter, arose in
West Bengal, jurisdiction lies there and cannot be
determined merely by agreement or consent.

III. Domestic enquiry proceedings - The alleged complaints
forming the basis of the misconduct charges were never
furnished to Respondent No. 2, causing serious prejudice.
Respondent No. 2 specifically raised this objection in his
explanation dated 28.04.2010.

Respondent no. 2 participated in the domestic enquiry and
wanted to be represented by his lawyer, which was not
allowed and request was also made in writing to hold the
enquiry in West Bengal but that was also turned down.

IV. Full back wages - Respondent no. 2 properly discharged
his duties by stating in the written statement before the
Tribunal and also in the evidence adduced before the
Tribunal that he is not gainfully employed elsewhere after
dismissal from service and remain totally unemployed and
for the necessary relief has also been granted by this

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Hon’ble Court under Section 17B of the Industrial Disputes
Act, 1947.

21. The following judgments have been cited by Mr. Suvadip
Bhattacharjee;
With respect to territorial jurisdiction –

I. Novartis India Limited v. State of West Bengal W.P.
21443 (W) of 2015 (unreported) - The Tribunal ought to have
ascertained whether the writ petitioner maintained an
established place of business at Murshidabad. If so, the 5th
Industrial Tribunal, Murshidabad would have jurisdiction;
however, if Murshidabad was merely a temporary camp
office and the controlling office was situated in Kolkata,
jurisdiction would lie with the 7th Industrial Tribunal,
Kolkata.
II. V.G. Jagdishan v. Indofos Industries Ltd. (2022) 6 SCC
167 - The Court observed that as the workman was
employed, worked, and was terminated at Ghaziabad, the
Court at Ghaziabad alone had territorial jurisdiction. His
subsequent shifting to Delhi and service of a demand notice
at the management’s Delhi Head Office did not create any
cause of action in Delhi.
III. M/s. Ranbaxy Laboratories Limited v. The State of West
Bengal 2012 SCC OnLine Cal 4373 - In service matters, an
unreasonable contractual term causing inequality or
injustice may violate Article 14. A jurisdiction clause
compelling an employee to litigate in Delhi despite working
in Bhubaneswar and receiving termination at Kolkata was
held arbitrary, unreasonable, and therefore illegal.

IV. Alembic Limited v. State of West Bengal 2022 SCC
OnLine Cal 2108 - The Court affirmed that situs of
industrial dispute between workmen and employer will
confirm territorial jurisdiction of the Court and location of
head office/registered office only may not be sufficient for
concluding the territorial jurisdiction of the labour
court/industrial tribunal.

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Bikash Bhushan Ghosh v. Novartis India Ltd. (2007) 5
V.
SCC 591 - The situs of employment is relevant in
determining jurisdiction. As the termination orders were
served at Calcutta and were directly connected with the
transfer orders, West Bengal had sufficient nexus with the
dispute and was therefore the appropriate Government.

22. The following judgments have been cited by the respondent
no. 2 with respect to full back wages –

I. Jasmer Singh v. State of Haryana (2015) 4 SCC 458 -
Reinstatement following illegal termination ordinarily
restores the employee to the position he would have
occupied and carries entitlement to full back wages. To deny
such wages, the employer must plead and prove that the
employee was gainfully employed during the intervening
period.
II. Deepali Gundu Surwase v. Kranti Junior Adhyapak
Mahavidyalaya (2013) 10 SCC 324 - The Apex Court
elucidated that in wrongful termination cases, reinstatement
with continuity and back wages is the normal rule, subject
to relevant circumstances. Once the workman asserts
unemployment, the burden shifts to the employer to prove
gainful employment.
23. The writ petitioner/company has strongly relied upon a
notification No. 101-IR dated February 2, 2012, in its
th
endeavour to substantiate its point that the 7 Industrial
Tribunal did not have the territorial jurisdiction, to
adjudicate the instant industrial dispute. This notification
redefines and specifies the territorial jurisdictions of various
Industrial Tribunals across the state for referring and
adjudicating labour/industrial disputes under Section 10 of
the Industrial Disputes Act, 1947. It dictates exactly which
Industrial Tribunal handles cases for specific regions. The
notification allocates territorial and sector-specific industrial
dispute scopes across tribunals. For better understanding
the relevant part of the notification is reproduced below:

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Labour
Courts/Industrial
Constituted under
District
Notification No.
Tribunals
1 2 3
First Labour Court West Midnapur
Second Labour Court East Midnapur
First Industrial Tribunal 24 Parganas (North)
Second Industrial

Howrah
Tribunal
Third Industrial Tribunal Hooghly
Fourth Industrial

Nadia
Tribunal
First Industrial Tribunal Murshidabad




1. Cooch Behar
2. Jalpaiguri
3. Darjeeling
4. Dakshin
Dinajpur
5. Dakshin
Dinajpur
6. Malda
Second Industrial
Sixth Industrial Tribunal

Kolkata
Tribunal
Eighth Industrial

24 Parganas (South)
Tribunal


1. Burdwan
2. Birbhum
3. Bankura
4. Purulia


24. The Tribunal has considered the rival contentions on the
four issues framed by it and has returned findings on both
jurisdiction and illegality of the dismissal order. The
jurisdiction of this Court under Article 226 of the
Constitution, while undoubtedly wide, is supervisory and
not appellate in character. The Court is concerned with the
decision-making process and the legality, rationality and
procedural propriety of the decision under challenge; it does
not ordinarily undertake a re-appreciation of evidence as if
sitting in appeal over a statutory fact-finding Tribunal.

25. The writ petitioner’s contention is that firstly in accordance
with the contract of employment, which has been accepted
and acted upon by him, in case of a dispute the situs of a
Ninth Industrial
Tribunal

Page 16 of 24

Court or Tribunal to decide upon the same, should be at the
place of the company’s head office at Mumbai. Even if it is
not, then in accordance with the notification dated February
st
2, 2012, the 1 Industrial Tribunal should have to be
considered as the appropriate forum having jurisdiction and
th
not the 7 Industrial Tribunal, which has ultimately passed
the impugned Award. It therefore addresses the impugned
Award as a nullity, having been passed by a Tribunal
without jurisdiction.

th

26. The first question, therefore, is whether the 7 Industrial
Tribunal, West Bengal lacked territorial jurisdiction. The
petitioner places considerable reliance upon the jurisdiction
clause contained in the appointment letter, according to
which Bombay/Mumbai was stipulated as the place of
jurisdiction, and upon the notification dated February 2,
2012 delineating the territorial jurisdiction of the Industrial
Tribunals in West Bengal. The submission is that the
contractual stipulation operated as an exclusion of the
jurisdiction of all other forums and, in any event, that the
st
dispute ought to have been dealt with by the 1 Industrial
th
Tribunal and not by the 7 Industrial Tribunal.

27. The proposition that parties may, in appropriate
circumstances, agree to submit their disputes to one
amongst several competent forums is not in doubt. The
decisions in Hakam Singh (supra) , A.B.C. Laminart (P)
Ltd (supra) and Swastik Gases (P) Ltd (supra) , relied upon
by the petitioner, recognise that where more than one Court
possesses jurisdiction, parties may select one such Court
and exclude the others. In Swastik Gases (supra) , the
Supreme Court explained the principle by reference to the
maxim expressio unius est exclusio alterius , holding that
where a contract stipulates that it shall be subject to the
jurisdiction of a particular Court, the intention to exclude
other competent Courts may, in an appropriate case, be
inferred. The principle, however, contains its own limitation
of fundamental importance: the forum selected by
agreement must possess jurisdiction in the first place.
Contract cannot create jurisdiction where the law does not

Page 17 of 24

confer it. The Supreme Court has reiterated this very
limitation in Rakesh Kumar Verma versus HDFC Bank
Ltd. reported in 2025 SCC OnLine SC 752 , while
explaining that an exclusive jurisdiction clause can be
enforced only when, inter alia, the designated court is
competent under the governing statutory regime to entertain
the dispute.

28. There is, therefore, a distinction between an agreement
regulating the choice amongst otherwise competent civil
forums and an attempt to displace a statutory adjudicatory
jurisdiction. An Industrial Tribunal is not a private forum
created by contract. It is a creature of statute, and its
jurisdiction flows from the Industrial Disputes Act, 1947
and the order of reference made thereunder. The source of
its jurisdiction is thus statutory and not consensual. The
parties cannot by agreement either confer jurisdiction upon
a forum which does not possess it or, conversely, by private
stipulation render a competent statutory forum incompetent
where the statutory conditions of jurisdiction are otherwise
satisfied.

29. The present dispute has, moreover, a substantial and direct
nexus with West Bengal. The private respondent was
working within West Bengal at the relevant time, his
employment was connected with the State, and the
industrial dispute concerned the termination of that
employment. The employee had specifically asserted that he
was employed in West Bengal and had sought that the
domestic enquiry itself be held there. The situs of
employment is consequently not an incidental circumstance
but a material component in determining where the
industrial dispute arose. The Supreme Court in Workmen
of Shri Rangavilas Motors (P) Ltd. versus Shri
Rangavilas Motors (P) Ltd reported in 1967 SCC OnLine
SC 59 recognised that, ordinarily, where there is a separate
establishment and the workman is working at that
establishment, the dispute would arise at that place,
provided there is a nexus between the dispute and the
territory concerned. The principle was reiterated and applied

Page 18 of 24

in Bikash Bhushan Ghosh (supra) and Alembic Limited
(supra) , where the Supreme Court held that the fact that
another State may also possess jurisdiction does not denude
West Bengal of jurisdiction when a part of the industrial
dispute substantially arose within its territory. The situs of
employment and the place where the dispute substantially
arises are material considerations. The mere fact that the
petitioner's registered office is at Mumbai, or that the
appointment letter emanated from Mumbai, cannot by itself
erase the substantial connection which the dispute bears
with West Bengal.

30. As regards the notification dated February 2, 2012, the
submission of the petitioner proceeds upon the assumption
that the notification, by its territorial allocation, conclusively
th
establishes that the 7 Industrial Tribunal lacked
jurisdiction. Such an assumption cannot be accepted
without examining the nature of the reference, the territorial
allocation under the notification and, above all, the actual
nexus of the dispute with the area assigned to the Tribunal.
The Tribunal, having considered the jurisdictional objection
and having returned a positive finding on its jurisdiction,
that finding cannot be displaced in writ jurisdiction merely
by reproducing the competing interpretation of the
notification. The petitioner has not demonstrated that the
Tribunal's construction of the statutory allocation is so
patent or manifestly erroneous or irrational as to warrant
supervisory correction.

31.
In the facts of the present case, the situs of employment and
the place where the industrial dispute substantially arose
bear a close and intimate nexus with each other. The private
respondent was employed and posted in West Bengal and
was discharging his duties within the territorial area of the
State. The dispute itself arises out of the termination of such
employment, and the circumstances preceding and
surrounding the disciplinary proceeding are substantially
connected with the respondent's employment in West
Bengal. The situs of employment, therefore, cannot be
treated as a mere fortuitous or incidental circumstance

Page 19 of 24

having no bearing upon the territorial jurisdiction of the
industrial adjudicatory forum. Once such substantial nexus
between the employment, the cause of the dispute and the
territory of West Bengal is established, the assumption of
jurisdiction by the Seventh Industrial Tribunal cannot, in
itself, be faulted. The fact that the employer has its
registered or head office at Mumbai, or that certain
administrative acts connected with the disciplinary
proceeding were undertaken there, does not sever the
territorial nexus which the industrial dispute otherwise
bears with West Bengal. The jurisdiction assumed by the
Seventh Industrial Tribunal, therefore, cannot be
characterised as either arbitrary or without foundation in
law.

32. The next question concerns the domestic enquiry. The
petitioner contends that the employee had adequate
opportunity, participated in the enquiry, cross-examined the
management witness and was ultimately heard;
consequently, the Tribunal ought not to have held the
enquiry to be vitiated. It is further argued that, even
assuming the enquiry to be defective, the Tribunal was
bound to permit the employer to lead fresh evidence to
establish the charges. The principles of natural justice do
not prescribe an inflexible ritual. Their essential purpose is
to ensure a fair opportunity to meet the case, to know the
material relied upon and to effectively defend oneself. The
test is not whether some opportunity was technically
afforded, but whether the opportunity was real, reasonable
and effective in the circumstances of the particular case.

33. The circumstances here cannot be examined in isolation.
The employee had specifically requested that the enquiry be
held in West Bengal, where he was working, and had
asserted that his witnesses were available there. The request
was rejected and the enquiry proceeded at Mumbai. He also
sought representation and raised objections regarding the
procedure adopted. It is further his specific case that
material complaints and reports relied upon against him
were not supplied. The Tribunal, as the primary fact-finding

Page 20 of 24

authority, considered these matters and found the domestic
enquiry improper. The mere fact that the employee
ultimately participated in portions of the enquiry cannot
retrospectively cure a denial of an effective opportunity.
Participation in a proceeding does not amount to waiver of
every procedural objection, particularly where the employee
has contemporaneously protested against the manner and
venue of the enquiry. The record indicates that objections
were raised at different stages and that the employee did
participate through a defence representative, including by
cross-examining the management witness. The Tribunal was
therefore required to examine whether the participation was
meaningful and whether the procedural defects caused
prejudice; it was not required to treat participation itself as
conclusive proof of fairness. The subsequent course of
events further assumes significance. The enquiry report was
submitted on January 12, 2011. A second show-cause
notice enclosing the report was issued on March 4, 2011.
The employee sought time until April 5, 2011 to submit his
explanation, on March 23, 2011, but the order of dismissal
was passed on the very next day, March 24, 2011. The
employee thereafter lodged protests. The chronology is thus
not merely one of a technical procedural objection. It is part
of the factual matrix which the Tribunal was entitled to take
into consideration while determining whether the
disciplinary process as a whole satisfied the requirements of
fairness.

34. Ratio decided in Karnataka State Road Transport
Corporation(supra) , Divyash Pandit (supra),
Kurukshetra University (supra) , undoubtedly recognise
the procedural flexibility available to an Industrial Tribunal
and the power to permit additional evidence in an
appropriate case. They do not, however, establish an
inflexible rule that every time a domestic enquiry is found
defective, the employer must necessarily be given another
opportunity irrespective of the circumstances. The power to
receive further evidence is a discretionary procedural power
to be exercised to advance the ends of justice; it cannot be
converted into an automatic right to repair every defective

Page 21 of 24

disciplinary proceeding. The question is ultimately one of
prejudice and fairness in the particular proceeding. The
Tribunal considered the enquiry record and reached the
conclusion that the domestic enquiry was not conducted in
accordance with the principles of natural justice. No
material has been demonstrated before this Court to show
that such finding is based upon no evidence or upon an
irrelevant consideration. Nor has the petitioner
demonstrated such perversity in the Tribunal's reasoning as
would justify interference under Article 226. The question
before this Court is not whether the Tribunal could have
exercised its discretion differently, but whether its exercise
of discretion is legally impermissible or manifestly arbitrary.
On the materials available, that threshold has not been
crossed.

35. The third limb of the petitioner's challenge concerns the
relief of reinstatement with full back wages. It is correct, as
the petitioner submits, that reinstatement with full back
wages is not an automatic or mechanical consequence in
every case where termination is found illegal. The decisions
in Novartis India Ltd (supra) , Jagbir Singh (supra) , PVK
Distillery Ltd (supra), Rajasthan State Road Transport
Corporation Jaipur (supra) , recognise that the grant of
back wages depends upon the facts and circumstances of
each case and that the adjudicatory authority must exercise
judicial discretion. Equally, however, the proposition that
back wages are not automatic does not mean that they are
impermissible whenever reinstatement is directed. The
converse proposition is equally well settled: where the
termination is found to be illegal and the employee has been
kept out of service by an act attributable to the employer,
reinstatement with appropriate monetary consequences may
be necessary to restore the employee substantially to the
position in which he would have stood but for the illegal
action. The remedy is ultimately one of judicial discretion
informed by the facts, the conduct of the parties, the nature
of the illegality and the evidence regarding gainful
employment. The decisions in Hindustan Tin Works (P)
Ltd (supra) , Jasmer Singh (supra) and Deepali Gundu

Page 22 of 24

Surwase (supra) operate in this field. They cannot be read
as establishing an immutable formula applicable to every
case, but they demonstrate that where the workman is
found to have been wrongfully deprived of employment and
there is no established basis for attributing gainful
employment to him, denial of consequential monetary relief
may itself result in injustice. The Supreme Court in Deepali
Gundu Surwase (supra) also cautioned against
mechanically denying back wages merely because litigation
has consumed considerable time.

36. The authorities relied upon by the petitioner do not advance
its case beyond the settled propositions that reinstatement
with back wages is not an automatic consequence of every
illegal termination and that the nature of misconduct, loss
of confidence, passage of time and the circumstances of
each case are relevant considerations. Those decisions,
however, do not lay down any inflexible rule that an
employer's mere assertion of loss of confidence is sufficient
to defeat reinstatement. In the present case, the very
disciplinary process through which the alleged misconduct
was sought to be established has been found by the
Tribunal to be procedurally defective. The alleged
misconduct, therefore, cannot, without more, be relied upon
as a basis for denying the consequential relief. Likewise, the
passage of time, much of which was consumed in the
adjudicatory process and the earlier proceedings before this
Court, cannot by itself operate to the prejudice of the
workman.

37. The respondent had specifically pleaded and deposed that
he remained unemployed and was not gainfully employed
after his dismissal. Though the petitioner has questioned
the sufficiency of the material establishing such
unemployment, it has not demonstrated any material
showing gainful employment so as to warrant interference
with the Tribunal's exercise of discretion. The fact that
Section 17B relief was granted during pendency of the
proceedings also does not render the final award of back
wages impermissible, since such statutory payment is

Page 23 of 24

distinct from the final adjudication of entitlement to back
wages. On a consideration of the totality of the
circumstances, therefore, the Tribunal's decision to grant
reinstatement with back wages cannot be said to be
perverse, arbitrary or disproportionate so as to warrant
interference in exercise of the supervisory jurisdiction of this
Court.

38. The petitioner has, in substance, invited this Court to revisit
the factual assessment made by the Tribunal regarding the
fairness of the domestic enquiry, to substitute its own
assessment of the consequences of the procedural defects,
and to reassess the quantum and nature of relief. Such an
exercise falls outside the legitimate boundaries of judicial
review in the facts of the present case.

39. For the reasons aforesaid, the challenge to the territorial
th
jurisdiction of the 7 Industrial Tribunal fails. The
contractual jurisdiction clause relied upon by the petitioner
does not, in the facts of the present case, render the
statutory adjudication by the Tribunal without jurisdiction.
The reliance upon the notification dated February 2, 2012
also does not establish that the impugned Award is a
nullity. The finding of the Tribunal that the domestic
enquiry was illegal and contrary to the requirements of fair
procedure likewise does not suffer from such perversity or
legal infirmity as would justify interference under Article
226. The consequential relief of reinstatement with back
wages, having been granted upon consideration of the
circumstances found by the Tribunal, cannot also be
characterised as so unreasonable or disproportionate as to
warrant interference.

40. This Court accordingly finds the impugned Award dated
th
March 31, 2016 passed by the 7 Industrial Tribunal, West
Bengal in Case No. 16/10(1B)(d) of 2012 to be legal, just
and proper. The writ petition, accordingly, fails and is
dismissed.

Page 24 of 24


41. There is, however, one subsequent circumstance which
necessarily bears upon the nature of the relief that can now
be granted. The respondent No. 2 attained the age of
superannuation on April 15, 2021 and consequently, there
can be no question of his physical reinstatement in service
at this stage. The relief of reinstatement is necessarily
confined by the subsistence of the employment relationship
and cannot be directed after the date on which the employee
would, in the ordinary course, have ceased to be in service
on attaining the age of superannuation. This, however, does
not obliterate the legal consequence of the finding that his
dismissal was illegal. The respondent cannot be placed in a
position worse than that in which he would have stood, had
the illegal order of dismissal not intervened.

42. The appropriate relief, therefore, would be to treat the
respondent, for the purpose of determining his
consequential service and retiral benefits, as having
continued in service, up to April 15, 2021, and to grant him
the consequential monetary and retiral benefits flowing
therefrom, after giving due adjustment of any amount
already paid to him pursuant to the impugned Award or
under Section 17B of the Industrial Disputes Act, 1947, as
may be permissible in law. Such relief would adequately
balance the consequence of the illegal termination with the
present impossibility of actual reinstatement and would
substantially place the respondent in the position in which
he would have been, had the illegal termination not taken
place. The impugned Award is accordingly modified to that
extent.

43. Urgent certified copy of this judgment, if applied for, be
supplied to the parties upon compliance with all requisite
formalities.

(Rai Chattopadhyay, J.)