Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Order: November 28, 2018
(i) + W.P.(C) 3167/2015
(ii) + W.P.(C) 6294/2016 & C.M. 25790/2016
(iii) + W.P.(C) 6295/2016 & C.M. 25792/2016
(iv) + W.P.(C) 6296/2016 & C.M. 25794/2016 & C.M.
25078/2017
(v) + W.P.(C) 6297/2016 & C.M. 25796/2016
(vi) + W.P.(C) 6298/2016 & C.M. 25798/2016
(vii)+ W.P.(C) 6300/2016 & C.M. 25802/2016
(viii)+ W.P.(C) 6301/2016 & C.M. 25804/2016
(ix) + W.P.(C) 6302/2016 & C.M. 25806/2016
(x) + W.P.(C) 6303/2016 & C.M. 25808/2016
M/S. LIVING MEDIA INDIA LTD. & ANR. ..... Petitioners
Through: Mr. Puneet Kumar Verma,
Advocate
Versus
(i) GOVERNMENT OF NATIONAL CAPITAL OF
TERRITORY OF DELHI & ORS.
(ii) SANJAY KUMAR AND ORS.
(iii) CHANDAN KUAMR AND ORS.
(iv) PRITHVIRAJ AND ORS.
(v) RAJU CHAUHAN AND ORS.
(vi) SHASHIKANT MISHRA AND ORS.
(vii) RAM KUMAR AND ORS.
(viii) RAMESH PRASAD AND ORS.
(ix) RAJENDER SINGH AND ORS.
(x) RAGHUBIR SINGH THAKUR AND ORS. .... Respondents
Through: Mr. K. Viswanath, Advocate
for respondent No.1 (except in W.P.(C)
6296/2016)
W.P.(C) 3167/2015 & connected matters Page 1 of 5
Mr. Fidel Sebastian, Advocate for
respondent No.1 in W.P.(C) 6296/2016
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
O R D E R
(ORAL)
1. With the consent of learned counsel for the parties, the above
captioned petitions have been heard together and are being decided by
this common order, while treating W.P.(C) 3167/2015 as the lead matter.
2. Reference (Annexure P-1) made by Government of NCT of Delhi
to the concerned Labour Court regarding respondent-workmen being
illegally retrenched/ terminated is being challenged in these petitions on
the ground that respondent- Government of NCT of Delhi has no
jurisdiction to make the Reference, as respondents-workmen are located
beyond the territorial jurisdiction of Delhi Courts.
3. Learned counsel for petitioners submits that respondent-workmen
working in petitioner-Company have been re-located to Noida in
September, 2012 and since then, Corporate office of petitioner-Company
located in Delhi, is running in one room only, whereas the impugned
Reference has been made in November, 2013.
4. According to petitioners’ counsel, situs of employment of
respondent-workmen was in the State of Uttar Pradesh, as petitioners’
General Manager, Human Resource, who had terminated the services of
respondents-workmen, was located in petitioner’s establishment at FC-8,
Sector 16A, Film City, Noida, Uttar Pradesh. Attention of this Court is
W.P.(C) 3167/2015 & connected matters Page 2 of 5
drawn by petitioners’ counsel to respondents-workmen’s retrenchment/
nd
termination letter of 2 July, 2013 to point out that it was issued by
petitioner from Noida. It is also pointed out that the Demand Notice has
been served by respondents-workmen to petitioner-Company at its Noida
office only. Reliance is placed upon Division Bench decisions in
Dharambir Singh Vs. Hindustan Unilever Ltd & Ors. 2015 LawSuit (Del)
4171 and V.G. Jagdishan Vs. Indofos Industries Limited & Anr. 2015
LawSuit (Del) 2881 to submit that since workmen were working in Noida
and services were terminated/ retrenched in Noida, therefore, the Labour
Courts at Noida would have the territorial jurisdiction to entertain the
Reference and Government of Uttar Pradesh would have the jurisdiction
to make the Reference and not Government of NCT of Delhi.
5. On the contrary, counsel for respondents-workmen support the
impugned Reference and submit that the question of territorial
jurisdiction was never raised before the Conciliation Officer and
respondents-workmen had attended petitioner’s work place at Noida as
well as at Delhi office simultaneously and since respondents-workmen
are residing in Delhi, therefore, territorial jurisdiction to make the
Reference is of Government of NCT of Delhi. Reliance is placed upon
Supreme Court’s decision in Bikash Bhushan Ghosh & Ors. Vs. M/S
Novartis India Limited & Anr. (2007) 5 SCC 591 and decision of
Division Bench of this Court in University of Kashmir Srinagar & Anr.
Vs. H.L.Warikoo & Ors. 2006 VII AD (Delhi) 123. Reliance is also
placed upon decisions of Coordinate Bench of this Court in Raj Kumar
Jaiswal Vs. Rangi International Pvt. Ltd. 2009 (113) DRJ 620; Mahipal
W.P.(C) 3167/2015 & connected matters Page 3 of 5
Singh Vs. Presiding Officer, Industrial Tribunal-III 2010 (117) DRJ 201
and Indra Deo Paswan Vs. Union of India & Ors. 125 (2005) DLT 763 in
support of above submissions.
6. Upon hearing and on perusal of impugned Reference, material on
record and the decisions cited, I find that reliance placed by petitioners’
counsel upon decisions of Division Bench and Coordinate Bench of this
Court, are of no avail, as Supreme Court in Bikash Bhushan Ghosh
(Supra) has clearly reiterated that although well known test of jurisdiction
of civil court including the residence of party and the subject matter of
dispute substantially arising therein, would be applicable but has clarified
that the objection to jurisdiction, both territorial and pecuniary, are
technical and not open to consideration by an Appellate Court, unless
there has been prejudice on the merits. Supreme Court’s decision in
Bikash Bhushan Ghosh (Supra) has been subsequently followed in
Mantoo Sarkar Vs. Oriental Insurance Co. Ltd. (2009) 2 SCC 244 and
Malati Sardar Vs. National Insurance Co. Ltd (2016) 3 SCC 43. The ratio
of above decisions is that unless there is consequent failure of justice,
question of territorial jurisdiction ought to be raised before the Court to
which reference is made. In the peculiar facts and circumstances of the
case, it is deemed appropriate to leave the issue of territorial jurisdiction
open to be considered by the concerned Labour Court to whom Reference
is made, as the question as to whether substantial part of cause of action
has arisen in U.P. or Delhi is required to be determined by the Court of
first instance. Such a view is taken because petitioners suffer no prejudice
if the impugned Reference is dealt with by the concerned Labour Court in
W.P.(C) 3167/2015 & connected matters Page 4 of 5
Delhi, as respondents-workmen are residing in Delhi and so, it will be in
fitness of things that issue of territorial jurisdiction is dealt with by the
concerned Labour Court in Delhi itself. It is so said as corporate office of
petitioner is functional in Delhi. To facilitate expeditious disposal of
proceedings, let the parties appear before the concerned Labour Court in
th
Delhi on 7 December, 2018 for proceeding further in accordance with
the law.
7. With aforesaid directions, these petitions and applications are
disposed of, while leaving the question of territorial jurisdiction open to
be considered by the concerned Labour Court.
(SUNIL GAUR)
JUDGE
NOVEMBER 28, 2018
r
W.P.(C) 3167/2015 & connected matters Page 5 of 5
Date of Order: November 28, 2018
(i) + W.P.(C) 3167/2015
(ii) + W.P.(C) 6294/2016 & C.M. 25790/2016
(iii) + W.P.(C) 6295/2016 & C.M. 25792/2016
(iv) + W.P.(C) 6296/2016 & C.M. 25794/2016 & C.M.
25078/2017
(v) + W.P.(C) 6297/2016 & C.M. 25796/2016
(vi) + W.P.(C) 6298/2016 & C.M. 25798/2016
(vii)+ W.P.(C) 6300/2016 & C.M. 25802/2016
(viii)+ W.P.(C) 6301/2016 & C.M. 25804/2016
(ix) + W.P.(C) 6302/2016 & C.M. 25806/2016
(x) + W.P.(C) 6303/2016 & C.M. 25808/2016
M/S. LIVING MEDIA INDIA LTD. & ANR. ..... Petitioners
Through: Mr. Puneet Kumar Verma,
Advocate
Versus
(i) GOVERNMENT OF NATIONAL CAPITAL OF
TERRITORY OF DELHI & ORS.
(ii) SANJAY KUMAR AND ORS.
(iii) CHANDAN KUAMR AND ORS.
(iv) PRITHVIRAJ AND ORS.
(v) RAJU CHAUHAN AND ORS.
(vi) SHASHIKANT MISHRA AND ORS.
(vii) RAM KUMAR AND ORS.
(viii) RAMESH PRASAD AND ORS.
(ix) RAJENDER SINGH AND ORS.
(x) RAGHUBIR SINGH THAKUR AND ORS. .... Respondents
Through: Mr. K. Viswanath, Advocate
for respondent No.1 (except in W.P.(C)
6296/2016)
W.P.(C) 3167/2015 & connected matters Page 1 of 5
Mr. Fidel Sebastian, Advocate for
respondent No.1 in W.P.(C) 6296/2016
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
O R D E R
(ORAL)
1. With the consent of learned counsel for the parties, the above
captioned petitions have been heard together and are being decided by
this common order, while treating W.P.(C) 3167/2015 as the lead matter.
2. Reference (Annexure P-1) made by Government of NCT of Delhi
to the concerned Labour Court regarding respondent-workmen being
illegally retrenched/ terminated is being challenged in these petitions on
the ground that respondent- Government of NCT of Delhi has no
jurisdiction to make the Reference, as respondents-workmen are located
beyond the territorial jurisdiction of Delhi Courts.
3. Learned counsel for petitioners submits that respondent-workmen
working in petitioner-Company have been re-located to Noida in
September, 2012 and since then, Corporate office of petitioner-Company
located in Delhi, is running in one room only, whereas the impugned
Reference has been made in November, 2013.
4. According to petitioners’ counsel, situs of employment of
respondent-workmen was in the State of Uttar Pradesh, as petitioners’
General Manager, Human Resource, who had terminated the services of
respondents-workmen, was located in petitioner’s establishment at FC-8,
Sector 16A, Film City, Noida, Uttar Pradesh. Attention of this Court is
W.P.(C) 3167/2015 & connected matters Page 2 of 5
drawn by petitioners’ counsel to respondents-workmen’s retrenchment/
nd
termination letter of 2 July, 2013 to point out that it was issued by
petitioner from Noida. It is also pointed out that the Demand Notice has
been served by respondents-workmen to petitioner-Company at its Noida
office only. Reliance is placed upon Division Bench decisions in
Dharambir Singh Vs. Hindustan Unilever Ltd & Ors. 2015 LawSuit (Del)
4171 and V.G. Jagdishan Vs. Indofos Industries Limited & Anr. 2015
LawSuit (Del) 2881 to submit that since workmen were working in Noida
and services were terminated/ retrenched in Noida, therefore, the Labour
Courts at Noida would have the territorial jurisdiction to entertain the
Reference and Government of Uttar Pradesh would have the jurisdiction
to make the Reference and not Government of NCT of Delhi.
5. On the contrary, counsel for respondents-workmen support the
impugned Reference and submit that the question of territorial
jurisdiction was never raised before the Conciliation Officer and
respondents-workmen had attended petitioner’s work place at Noida as
well as at Delhi office simultaneously and since respondents-workmen
are residing in Delhi, therefore, territorial jurisdiction to make the
Reference is of Government of NCT of Delhi. Reliance is placed upon
Supreme Court’s decision in Bikash Bhushan Ghosh & Ors. Vs. M/S
Novartis India Limited & Anr. (2007) 5 SCC 591 and decision of
Division Bench of this Court in University of Kashmir Srinagar & Anr.
Vs. H.L.Warikoo & Ors. 2006 VII AD (Delhi) 123. Reliance is also
placed upon decisions of Coordinate Bench of this Court in Raj Kumar
Jaiswal Vs. Rangi International Pvt. Ltd. 2009 (113) DRJ 620; Mahipal
W.P.(C) 3167/2015 & connected matters Page 3 of 5
Singh Vs. Presiding Officer, Industrial Tribunal-III 2010 (117) DRJ 201
and Indra Deo Paswan Vs. Union of India & Ors. 125 (2005) DLT 763 in
support of above submissions.
6. Upon hearing and on perusal of impugned Reference, material on
record and the decisions cited, I find that reliance placed by petitioners’
counsel upon decisions of Division Bench and Coordinate Bench of this
Court, are of no avail, as Supreme Court in Bikash Bhushan Ghosh
(Supra) has clearly reiterated that although well known test of jurisdiction
of civil court including the residence of party and the subject matter of
dispute substantially arising therein, would be applicable but has clarified
that the objection to jurisdiction, both territorial and pecuniary, are
technical and not open to consideration by an Appellate Court, unless
there has been prejudice on the merits. Supreme Court’s decision in
Bikash Bhushan Ghosh (Supra) has been subsequently followed in
Mantoo Sarkar Vs. Oriental Insurance Co. Ltd. (2009) 2 SCC 244 and
Malati Sardar Vs. National Insurance Co. Ltd (2016) 3 SCC 43. The ratio
of above decisions is that unless there is consequent failure of justice,
question of territorial jurisdiction ought to be raised before the Court to
which reference is made. In the peculiar facts and circumstances of the
case, it is deemed appropriate to leave the issue of territorial jurisdiction
open to be considered by the concerned Labour Court to whom Reference
is made, as the question as to whether substantial part of cause of action
has arisen in U.P. or Delhi is required to be determined by the Court of
first instance. Such a view is taken because petitioners suffer no prejudice
if the impugned Reference is dealt with by the concerned Labour Court in
W.P.(C) 3167/2015 & connected matters Page 4 of 5
Delhi, as respondents-workmen are residing in Delhi and so, it will be in
fitness of things that issue of territorial jurisdiction is dealt with by the
concerned Labour Court in Delhi itself. It is so said as corporate office of
petitioner is functional in Delhi. To facilitate expeditious disposal of
proceedings, let the parties appear before the concerned Labour Court in
th
Delhi on 7 December, 2018 for proceeding further in accordance with
the law.
7. With aforesaid directions, these petitions and applications are
disposed of, while leaving the question of territorial jurisdiction open to
be considered by the concerned Labour Court.
(SUNIL GAUR)
JUDGE
NOVEMBER 28, 2018
r
W.P.(C) 3167/2015 & connected matters Page 5 of 5