B.G Sampat v. State Of West Bengal And Others

Cases referred: Paras. 1. 1984 (2) L.L.N 617 19 and 37 2. 1982 (2) L.L.N 753 28,35,42 3. (1975) 1 SCC 676 : A.I.R 1975 S.C 1218 9 4. A.I.R 1967 S.C 1040 27, 35 and 37 5. A.I.R 1959 S.C 676 16, 22, 36 and 37

For The Indian Express Newspper (Bombay) Private, Ltd..— Sri Hirak Mitra, Sri Soumen Sen, Pooja Das Chowdhury and Sri Vineet Tibrewal.

In Person.— Sri B.G Sampat.

For The State of West Bengal.— Sri S.K Oli Mohammed and Sri Biswarupa Mitra.

The Judgment of the Court was delivered by

Altamas Kabir, J.:— These two appeals have been taken up together as they involve common questions of law and fact and the parties are also common.

2. Sri B.G Sampat, who has appeared in person in these appeals, was at the relevant point of time an employee of Indian Express Newspaper (Bombay) (Private), Ltd. On 1 August, 1988, while he was posted in Calcutta, he was served with a transfer order by the Bombay office of the newspaper company transferring him from Calcutta to Bombay with effect from 5 August, 1988. Sri Sampat did not comply with the said order of transfer and made several representations to the Bombay office for reconsideration of the same on grounds of hardship. Such request was, however, turned down and it was made clear to Sri Sampat that he was required to join the Bombay office in terms of the transfer order.

3. Sri Sampat did not comply with the transfer order and he did not also challenge the same. He was thereafter issued a show-cause notice, dated 22 November, 1988, in connection with his conviction by the 11 Metropolitan Magistrate at Calcutta, in Case No. T.R 888 of 1988, for gambling in a public street. Sri Sampat replied to the said show cause notice but, inasmuch as, the same was found to be unsatisfactory, he was served with a chargesheet, dated 6 November, 1989, issued on behalf of the newspaper company proposing to hold an enquiry at Bombay. The chargesheet consisted of two charges, namely,

(i) Sri Sampat's failure to comply with the transfer order and

(ii) his conviction in the criminal case filed against him for gambling in a public street. Inasmuch as, Sri Sampat did not participate in the domestic enquiry at Bombay, the same was conducted ex parte and the enquiry officer on the basis of the materials presented before him on behalf of the newspaper company held in his enquiry report that the charges had been proved against Sri Sampat. The said enquiry report of the enquiry officer was sent to the disciplinary authority of the newspaper company for its consideration. Concurring with the findings of the enquiry officer the disciplinary authority proposed to terminate Sri Sampat's service and by a letter, dated 28 September, 1990, Sri Sampat was asked to show cause as to why the proposed punishment of termination from service should not be imposed. Sri Sampat duly showed cause to the second show-cause notice but ultimately the disciplinary authority terminated Sri Sampat from service and informed him accordingly by letter, dated 9 November, 1990.

4. On receipt of such letter terminating his service, Sri Sampat raised an industrial dispute resulting in an order of reference by the Government of West Bengal, dated 13 January, 1992, following the failure of conciliation proceedings. Sri Sampat filed his written statement before the learned third Industrial Tribunal on 9 June, 1992. The newspaper company also filed its written statement before the learned Tribunal on 14 September, 1992. While the reference was pending, Sri Sampat filed an application for interim relief under S. 15(2)(b) of the Industrial Disputes Act, 1947, on April, 1993. The newspaper company filed its objection to such petition for interim relief on 8 September, 1993. The learned Tribunal, however, by its order, dated 13 August, 1995, rejected the prayer for interim relief and also held that the reference was, prima facie, not maintainable as the State of West Bengal was not the appropriate Government to make the reference.

5. The said decision of the learned Tribunal was challenged by Sri Sampat by way of a writ petition, being W.P No. 116 of 1998, which was disposed of by the learned Single Judge on 18 December, 1998 by setting aside the findings of the learned Tribunal that the reference, prima facie, was not maintainable and holding that the Government of West Bengal is the appropriate Government for the purpose of making the reference. The question regarding the scope and ambit of the provisions of S. 15(2)(b) of the Industrial Disputes Act, 1947, was, however, referred by the learned Single Judge to a Larger Bench in view of the conflicting decisions of two Division Benches of this Court.

6. The newspaper company preferred an appeal against the said judgment of the learned Single Judge and a cross-objection was filed therein by Sri Sampat.

7. Both the appeal and the cross-objection were taken up for disposal by the Division Bench on 15 September, 2000. On the question regarding the scope and ambit of S. 15(2)(b) of the Industrial Disputes Act, it was observed that the same had been concluded by the Full Bench decision in its judgment which had since been reported in 2000 (1) CHN page 1. The Division Bench then went on to consider the finding of the learned Tribunal regarding the State Government's jurisdiction to make a reference on the dispute raised by Sri Sampat. The Division Bench was of the view that the said question required deeper consideration at the hand of the learned Tribunal and should be decided by the learned Tribunal as a preliminary issue. The Appeal Court directed that in the event such preliminary issue was decided in favour of the workman the learned Tribunal would then consider the matter relating to grant of interim relief in favour of the workman under S. 15(2)(b) of the Industrial Disputes Act afresh in the light of the Full Bench decision in terms of the direction given by the Division Bench in the aforesaid appeal preferred by M/s. Indian Express Newspaper (Bombay) Ltd.

8. The question of jurisdiction of the State Government to make the reference was taken up by the learned Tribunal for consideration as a preliminary issue. By its order, dated 17 November, 2000, the learned Tribunal reversed its earlier findings on the ground that situs of employment is one of the factors to determine jurisdiction but not the only factor. Another factor is whether the workmen have been served with the order of termination or discharged as a penal measure. The learned Tribunal held that while Sri Sampat's case may not depend on the question of situs of employment, the order of dismissal from service was served on him at Calcutta.

9. Relying on the decisions of the Hon'ble Supreme Court in the case of Hindustan Aeronautics, Ltd., reported in (1975) 1 SCC 676 : A.I.R 1975 S.C 1218, and another decision of the same Court in the case of Hindustan Samachar v. State of Orissa reported in 1979 (1) L.L.N 204, the learned Tribunal came to the conclusion that in the present case the dispute arose at the Calcutta office where the workmen refused to comply with the order of transfer. The learned Tribunal also held that the mere fact that the head office exercised administrative control over the workmen does not confer jurisdiction on the Government within whose territorial jurisdiction the head office is located to make a reference under S. 10 of the aforesaid Act.

10. On the basis of the above, the learned Tribunal came to the conclusion that the State of West Bengal was the appropriate Government and had the jurisdiction to make the reference and the same was, therefore, maintainable.

11. The newspaper company thereafter challenged the decision of the learned Tribunal in a fresh writ petition, being W.P No. 228 of 2001. The learned Single Judge in deciding W.P No. 228 of 2001 observed that the question of jurisdiction had been duly considered in the earlier writ application in detail and decided to follow the same. The learned Single Judge observed that the charge against Sri Sampat related to his failure to join the transferred post from Calcutta to Bombay. The learned Judge also observed that admittedly when the transfer order was passed Sri Sampat was posted at Calcutta. The learned Single Judge observed further that in such factual background the State of West Bengal had acquired the jurisdiction to make a reference in respect of the jurisdictional question on situs of employment; control of management and cause of action. The writ application was accordingly dismissed by the learned Single Judge on his aforesaid findings.

12. The present appeal has been preferred by Indian Express Newspaper (Bombay) Pvt. Ltd. against the said decision of the learned Single Judge.

13. Appearing in support of the appeal, Sri Hirak Mitra, learned Senior Counsel, submitted that the issue for determination in the instant appeal is whether in the facts and circumstances of this case the State of West Bengal is the appropriate Government for making a reference on the dispute raised by Sri Sampat.

14. Sri Mitra submitted that from the various cases on the point it would be seen that a decision on the aforesaid issue would depend mainly on three tests involving

(a) situs of employment;

(b) administrative control over the employee and

(c) cause of action. Referring to the provisions of Ss. 2(a)(i) and (ii) of the Industrial Disputes Act, 1947, Sri Mitra submitted that the said provisions provide sufficient indication that the Legislature intended that it is the control over the employee which should be the guiding factor in determining as to which Government would be the appropriate Government to make a reference under S. 10 on a dispute raised by the workmen.

15. Sri Mitra urged that Sub-cl. (i) of S. 2(a) categorised the situation and the authorities in respect of which the Central Government would be the appropriate Government for the purpose of making a reference. Sub-clause (ii) provides that in relation to any other dispute it would be the State Government which would be the appropriate Government for the said purpose. Sri Mitra submitted that the definition is inclusive and shows that the Central Government has been made the appropriate Government in relation to the specified industries over which it exercised control and the same analogy could be extended in the case of Sub-cl. (ii) of S. 2(a) of the said Act.

16. In support of his aforesaid submission Sri Mitra relied strongly on the decision of the Hon'ble Supreme Court in the case of Lipton, Ltd. v. Their Employees, reported in A.I.R 1959 S.C 676, where one of the points taken before the Industrial Tribunal on behalf of the employer was that the Industrial Tribunal had no jurisdiction to make an award in respect of employees of the Delhi office who were employed outside the State of Delhi. On an analysis of the expression “appropriate Government” within the meaning of S. 2 of the Industrial Disputes Act, 1947, the Hon'ble Supreme Court held that all the workmen of the Delhi office, whether they worked in Delhi or not, received their salaries from the Delhi office; were controlled from the Delhi office in the matter of leave, transfer, supervision etc. and, therefore, the Delhi State Government was the appropriate Government within the meaning of S. 2 in respect of the dispute which arose between Lipton Ltd. and the Union of India. It was held that the Industrial Tribunal had jurisdiction to adjudicate on the dispute between Lipton Ltd. and its workmen of the Delhi Office.

17. Sri Mitra submitted that the facts involved in the instant case were similar to those which were involved in the case of Lipton Ltd., inasmuch as, Sri Sampat was an employee of the Bombay office of the newspaper company, as had been admitted by him all along and irrespective of the fact that he was employed in Calcutta, his Controlling Authority was the Bombay office and consequently it would be the Maharashtra State Government which would be the appropriate Government within the meaning of Sub-cl. (ii) of S. 2(a) of the Industrial Disputes Act, 1947, in the instant case.

18. In continuation of his aforesaid submission Sri Mitra submitted that from the various correspondence which had been disclosed by the parties during the course of the hearing of the different writ applications all relevant action relating to Sri Sampat's salary, leave salary for sick leave period, deduction of tax at source were taken from the Bombay office. Payments were released by the Calcutta office upon instruction being received from the Bombay office. In fact, Sri Mitra submitted that the management had exhibited the salary register maintained by the Bombay office in respect of outside stationed staff before the learned Tribunal and it was shown that the name of Sri Sampat appeared in the said Register against serial No. 64. On the said basis Sri Mitra urged that not only was control over Sri Sampat exercised by the Bombay office of the newspaper company but that his situs of employment was also in Bombay, particularly after he had been transferred from the Calcutta office to the Bombay office, which transfer had not been challenged by Sri Sampat and did not, therefore, form the subject-matter of the reference before the learned Tribunal.

19. In support of his aforesaid submission Sri Mitra firstly relied on a Full Bench decision of the Patna High Court in the case of Paritosh Kumar Pal v. State of Bihar reported in 1984 (2) L.L.N 617], wherein it was observed that territorial jurisdiction in respect of an industrial dispute arising from termination of employment of workman would have to be determined by the situs of employment of the workman concerned. Sri Mitra pointed out that in the said decision it had been observed that there are three clear-cut principles or tests for determining jurisdiction of the Industrial Tribunal, namely,

(i) where does the order of termination of service operate?

(ii) is there some nexus between the industrial dispute arising from termination of the service of the workman and the territory of the State?

(iii) that the well-known test on jurisdiction of a Civil Court including the residence of the parties and the subject-matter of the dispute substantially arising therein would be applicable. Sri Mitra urged that in the instant case, although, Sri Sampat had been served with the notice of the termination of his service in Calcutta, his situs of employment was Bombay, and, accordingly, in terms of the Full Bench decision in the aforesaid case the industrial dispute should have been raised by Sri Sampat in Bombay and not in Calcutta.

20. Several other decisions were also referred to by Sri Mitra, wherein the consistent view was that the appropriate Government for the purpose of making a reference under S. 10 of the Industrial Disputes Act is the Government of the place where the industrial dispute arises between the management and the workman. It was also observed in the said cases that the nexus should be between the dispute and the territory of the State within which such dispute had arisen consequent upon termination of service.

21. Sri Mitra submitted that while Sri Sampat may have been stationed in Calcutta, he was under the control of the Bombay office and after the order of transfer, transfering him from Calcutta to Bombay, the situs of employment as far as he was concerned had shifted to Bombay.

22. Sri Mitra submitted that as had been decided in the Lipton case (vide supra), it was the controlled exercise over the workman which would decide as to which was the appropriate Government within the meaning of Ss. 2(a)(i) and (a)(ii) of the Industrial Disputes Act, 1947. Sri Mitra urged that simply because Sri Sampat had chosen to remain in Calcutta even after being served with the transfer order transferring him to Bombay, the State of West Bengal did not become the appropriate Government to make a reference under S. 10 of the aforesaid Act on the dispute raised by Sri Sampat relating to his termination of service.

23. Sri Mitra submitted that the learned Single Judge had not applied his mind to the questions as to whether the State of West Bengal was the appropriate Government to make a reference in the instant case and had merely relied on the observations made in the earlier writ application by another learned Single Judge. Sri Mitra submitted that the views expressed by the learned Single Judge in the earlier writ application had been questioned in appeal and the Appeal Court had thought it fit to send the matter back to the learned Tribunal to consider the same after deeper consideration as a preliminary issue. Sri Mitra contended that thereafter, the matter had been decided by the learned Tribunal but in concurrence with the judgment of the learned Single Judge which had, in fact, been challenged in the appeal.

24. Sri Mitra submitted that the entire approach in deciding the question of jurisdiction after the direction of the Division Bench was entirely perfunctory and not upon a deeper consideration as was directed by the Appeal Court and was, therefore, liable to be rejected.

25. Sri B.G Sampat, who appeared in person, placed strong reliance on the judgment delivered by the learned Single Judge in W.P No. 116 of 1998, in which the decision of the learned Tribunal holding that the reference was not maintainable was distinguished and set aside. Sri Sampat urged that the learned Single Judge had considered the matter in great detail and the findings arrived at by him had not been interfered with by the Appeal Court and had, in fact, been reiterated not only by the learned Tribunal but also by the learned Single Judge while dismissing the writ application filed by the newspaper company, being W.P No. 228 of 2001.

26. Sri Sampat submitted that the learned Single Judge had taken into consideration the question relating to situs of employment and had come to the finding that when the transfer order had been passed Sri Sampat had, in fact, been posted at Calcutta and the effect of the transfer order was, therefore, felt by Sri Sampat in Calcutta which vested the State of West Bengal with jurisdiction to make a reference on the dispute raised by Sri Sampat in connection with the termination of his service.

27. Sri Sampat also relied on several other decisions and in particular the decision of the Hon'ble Supreme Court in the case of Workmen of Sri Ranga Vilas Motors (Private), Ltd. v. Sri Ranga Vilas Motors (Private) Ltd. reported in A.I.R 1967 S.C 1040. Sri Sampat pointed out that in the said case it had been clearly held that there should be some nexus between the dispute and the territory of the State and not necessarily between the territory of the State and the industry concerned. The dispute arises at the place where the workman is working and not at the headquarter of the industry.

28. Sri Sampat also placed reliance on a Bench decision of this Court in the case of Umasankar Chatterjee v. Union Of India & Ors. reported in 1982 (2) L.L.N 753, in which it was held that the impugned order of removal having become effective in Calcutta, where it was receivec by the appellants, a part of the cause of action must be held to have arisen in Calcutta within the jurisdiction of this Court.

29. On the merits of the case Sri Sampat contended that by the letter, dated 22 November, 1988, he had only been asked to show cause in respect of his conviction by the Eleventh Metropolitan Magistrate, Calcutta, for gambling in a public street, but upon consideration of his reply thereto he was informed by a subsequent letter, dated 6 November, 1989, that the newspaper company proposed to hold an enquiry at Bombay for his failure to report for duty at the Bombay office pursuant to the transfer order, dated 1 August, 1988, along with his conviction in connection with gambling in a public street.

30. Sri Sampat submitted that as would be evident from the first letter requiring him to show cause, the charge relating to his failure to report for duty at Bombay had not been included, but for the purpose of enquiry the same had been included without giving him an opportunity of explaining his position. Sri Sampat submitted that the charges on which his service had been terminated were not reflected in the notice to show cause and must, therefore, be held to be vitiated. Sri Sampat also contended that it had been wrongly urged on behalf of the newspaper company that he had not challenged the order of transfer, dated 1 August, 1988. Sri Sampat urged that he had made several representations against the said transfer order which would in itself establish that he was posted in the Calcutta office and that the cause of action for the dispute raised by him arose as a consequence in Calcutta on being served with the impugned order terminating his service.

31. Sri Sampat lastly contended that notwithstanding the submission made on behalf of the newspaper company that he was employed by the Bombay office, from the materials on record it would be quite evident that he was being paid his salaries, from the Calcutta office and was being given directions by the Calcutta office in connection with his duties.

32. Sri Sampat submitted that the total effect of all the aforesaid facts would indicate that a part of the cause of action for the industrial dispute arose in Calcutta which gave jurisdiction to the State Government in West Bengal to make a reference within the meaning of S. 10 of the Industrial Disputes Act, 1947, relating to the termination of his service.

33. Sri Sampat submitted that the order of the learned Single Judge did not warrant any interference and the appeal preferred by the newspaper company was liable to be dismissed with costs.

34. Appearing for the State and the State respondents Sri Oli Mohammed supported the case as made out by Sri Sampat and reiterated that the State Government in West Bengal was the appropriate Government within the meaning of S. 2(a)(ii) for making a reference under S. 10 of the said Act, in connection with the order served upon Sri Sampat terminating his services.

35. Sri Oli Mohammed submitted that admittedly Sri Sampat was stationed at Calcutta in connection with his services under the newspaper company and, although, he was under the ultimate control of the head office at Bombay, his activities in Calcutta were controlled by the branch office of the newspaper company at Calcutta. It was urged that Sri Sampat's salary was not being paid by the Bombay office but by the Calcutta Branch office on the instructions given by the Bombay office. He also placed reliance on the decisions of the Hon'ble Supreme Court and this Court in the case of the Workmen of Ranga Vilas Motors (Private), Ltd. (vide supra) and Umasankar Chatterjee [1982 (2) L.L.N 753] (vide supra) referred to and relied upon by Sri Sampat. Sri Oli Mohammed urged that in both the cases it had been held that the territorial jurisdiction would depend on where the dispute had arisen and that the effect of the termination of Sri Sampat's service was felt not in Bombay but in Calcutta creating the nexus between the dispute and the territory of the State in which the dispute had arisen. Sri Oli Mohammed submitted that the question regarding territorial jurisdiction in the instant case had been considered in detail by the learned Single Judge in W.P No. 116 of 1998, and, thereafter in W.P No. 228 of 2001.

36. Sri Oli Mohammed concluded on the note that the Upton case (vide supra), on which a great deal of reliance had been placed by Sri Mitra had been decided only on the theory of “control” and had not taken into consideration the other two facets giving rise to territorial jurisdiction, namely

(i) situs of employment and

(ii) cause of action. Sri Oli Mohammed also echoed Sri Sampat's submissions that no interference was called for in these appeals with the judgment and order of the learned Single Judge.

37. We have carefully considered the submissions made on behalf of the respective parties and the law regarding jurisdiction which has been considered in various cases both from the view point of the Industrial Disputes Act and the Constitution of India. As was observed by the Hon'ble Supreme Court in the Ranga Vilas case (vide supra), jurisdiction would have to be decided not only on the basis of the situs of employment, that is, where the dispute arises and the effects thereof are felt, but also on the interconnected question relating to cause of action. The question of control of an employee came up for consideration in the Lipton case (vide supra), relied upon by Sri Mitra, but as pointed out by Sri Oli Mohammed, appearing for the State, the said matter was decided on the sole question of control and did not take into consideration either the question relating to situs of employment or cause of action. The aforesaid contention was considered by the Full Bench of the Patna High Court in the case of Paritosh Kumar Pal [1984 (2) L.L.N 617] (vide supra), in which while placing reliance on the Ranga Vilas case it was observed that the ratio of the Lipton case is confined to the point that the Tribunal where the Head office is situated would have jurisdiction to take cognizance of an industrial dispute but not for the converse that situs of employment would also have the same effect. In fact, it was also observed with reference to the decision of the Hon'ble Supreme Court in the case of Indian Cable Company, reported in 1962 L.L.J 409, that the Industrial Disputes Act does not contain any provision bearing on the question of cause of action, which must, consequently, be decided on the principles governing the jurisdiction of Courts to entertain actions or proceedings.

38. While the questions relating to how a judicial forum is to acquire jurisdiction over a matter within the ambit of the Industrial Disputes Act, as also the question as to which would be the appropriate Government to make a reference under S. 10 of the Industrial Disputes Act, 1947, appears to have been more or less settled, the question with which we are concerned in the instant appeal is whether applying the said principles it can be held, as had been held by the learned Tribunal and the learned Single Judge that the State of West Bengal was the appropriate Government within the meaning of S. 2(a)(ii) of the Industrial Disputes Act, 1947, to make a reference under S. 10 thereof.

39. It has to be kept in mind that the initial findings of the learned Single Judge holding that the Government of West Bengal was the appropriate Government for the aforesaid purpose had not been accepted by the Division Bench which had remanded the matter to the Tribunal for a decision on the said question as a preliminary issue upon deep and proper consideration thereof. It is no doubt true that the Division Bench did not categorically set aside the findings of the learned Single Judge, but the very fact that the question relating to jurisdiction was referred back to the Tribunal for a fresh decision impliedly overturned the finding of the learned Single Judge in that regard. The subsequent finding of the learned Tribunal based on the observations made by the learned Single Judge is not really an independent assessment of the matter. The subsequent decision of the learned Single Judge in the writ petition filed by the newspaper company was also not an independent adjudication of the question at issue but was based on the findings of the learned Single Judge in the first writ application. In our view, the object with which the Division Bench had remanded the question to the learned Tribunal was not really fulfilled and, therefore, calls for a detailed examination by us.

40. The basis of the findings of the learned Single Judge in the first writ application and that of the Tribunal thereafter on remand and the subsequent findings of the learned Single Judge on the second writ application is that when Sri Sampat's services were terminated he was stationed in the Calcutta office of the newspaper company. While Sri Sampat was no doubt served witn the order of termination of his service in Calcutta, we are constrained to say that the same would not vest the State Government in West Bengal with authority under S. 2(a)(ii) of the Industrial Disputes Act to make a reference under S. 10 of the said Act. Firstly, at the said point of time the Calcutta office of the newspaper company no longer had control over Sri Sampat whose services had been transferred to Bombay and it was the Bombay office which had control over his services. That Sri Sampat was in Calcutta and was served with the notice of the order of termination of his service in Calcutta is only because of the fact that he had chosen not to comply with the order of transfer, dated 1 August, 1988, by which he had been transferred to Bombay with effect from 5 August, 1988, and had not also challenged the same before any forum. Sri Sampat may have made representations to the Bombay office with regard to such order of transfer, but the same was never the subject-matter of any judicial or quasi-judicial proceeding and it is only after he was served with the order of termination of his service that Sri Sampat raised a dispute in respect thereof. In our view, notwithstanding the fact that Sri Sampat had been served with such order in Calcutta, his situs of employment being Bombay, he ought to have raised an industrial dispute relating to the termination of his services in Bombay and the Government of Maharashtra would have been the appropriate Government to make a reference under S. 10 of the aforesaid Act in respect of such dispute.

41. The matter relating to cause of action would have had relevance if the situs of employment of Sri Sampat was in Calcutta. Since after the order of transfer Sri Sampat's situs of employment shifted to Bombay, the mere service of the order of termination of his service in Calcutta would not give rise to a cause of action for action to be taken by the State of West Bengal under the provisions of the Industrial Disputes Act.

42. Cause of action is basically a concept within the meaning of the Code of Civil Procedure as also Art. 226 of the Constitution of India. As was pointed out in Umasankar Chatterjee case [1982 (2) L.L.N 753] (vide supra), the order of removal undoubtedly gave rise to a cause of action for the appellant therein to institute an action for the establishment of his right to be in service. The impugned order of removal having become effective in Calcutta where it was received by the appellants a part of the cause of action must be held to have arisen in Calcutta within the jurisdiction of this Court. As was pointed out by Sri Mitra, Umasankar Chatterjee's case was one under Art. 226 of the Constitution and Cl. (ii) of Art. 226 was under consideration in the said case. The position under the Industrial Disputes Act is a little different and cause of action will have to be related to either the theory of “control” or the theory relating to “situs of employment”. In view of the facts disclosed in the instant case, not only control but also situs of employment as far as Sri Sampat's service is concerned was in Bombay. Two of the main tests in deciding jurisdiction, in our view, indicate that the State of Maharashtra and not the State of West Bengal would have been the appropriate Government before whom Sri Sampat should have raised the dispute with regard to the termination of his services. We are unable to agree with the views expressed either by the learned Tribunal or the two learned Single Judges while disposing of the two writ petitions, being W.P No. 116 of 1998, and W.P No. 228 of 2001. In our view, the State of West Bengal was not the appropriate Government to make the reference on the dispute raised by Sri Sampat and the same was without jurisdiction.

43. We, accordingly, allow the appeal and set aside the award of the learned Tribunal as also the judgment and order of the learned Single Judge impugned in the appeal. Consequently, the writ application filed by the newspaper company is also allowed.

44. There will, however, be no order as to costs.

45. All parties to act on the xerox signed copy of the operative portion of this judgment on the usual undertaking.

Asit Kumar Bisi, J.: I agree.

Appeals allowed.