Lalbhai Tricumlal Mills Ltd. v. Manubhai Motilal Vin And Ors.

Advocate appeared:

P. N. Bhagwati with Amarchand and Mangaldas, for Petitioners

M. L. Shah, with N. A. Nanavatti, for Opponent No. 5

M.C.CHAGLA, C. J.- This petition raises a rather interesting ques­tion as to the jurisdiction of the Labour Court to try a certain industrial dispute. The facts are very brief. Opponent 5 was employed by the petitioner mills in their branch office in Bombay and his ser­vices were terminated on 27-8-1953, when the branch office was closed. He wrote to the register­ed office of the mills in Ahmedabad complaining. of his dismissal and claiming to be reinstated. No reply was sent to this letter and respondent 5 filed an application before the Labour Court for reins­tatement and compensation. A point was raised by the petitioner that the Labour Court at Bombay Lad no jurisdiction to try and dispose of the appli­cation made by respondent 5, and the Labour Court, made a reference to the Industrial Court under section si. bombay industrial relations act, 1946, and the Industrial Court has held that the Bombay Labour Court had jurisdiction. It is against that decision that the petitioner has come on this peti­tion.

(2) Now, under Section 9 the State Government is empowered to constitute one or more Labour Courts having jurisdiction in such local areas as may be specified in such notification, and a Labour Court has been. constituted under this section for Bombay; and under Section:: 77 it is again empha­sised that the territorial jurisdiction of Labour Courts shall extend to the local areas for which they are constituted. But neither S. 9 nor S. 77 throws any light as to what is the jurisdiction in relation to the subject-matter. Both Section 9 and Sec­tion 77 deal with the territorial jurisdiction of the Courts, but what we have to consider is in respect of what matters arising within that territorial juris­diction the Labour Court has been empowered to dispose of application filed before it.

(3) What is pointed out by Mr. Bhagwati. on behalf of the petitioner is that S. 78 of the Act pro­vides:

"(I) A Labour Court shall have power to-

A. decide-

(a) disputes regarding - (and we are here concerned with cl. (iii) )

(iii) any change made by an employer or de­sired by an employee in respect of an industrial matter specified in Schedule III and matters arising" . out of such change" and the "Explanation to that section provides

"A dispute falling under cl. (a) of paragraph A of sub-section (i) shall be deemed to have arisen if within the period prescribed under the proviso to sub-section (4) of S. 42, no agreement is arrived .at in respect of an order, matter or change refer­red to in the said proviso".

And when we turn to sub-s. (4) of S. 42, it lays down:

"Any employee or a representative .union de­siring a change in respect of (i) any order passed by the employer under standing orders, or (h) any industrial matter arising out of the application or interpretation of standing orders, or (hi) an indus­trial matter specified in Sch. III, shall make an application to the Labour Court":

There is a proviso to this sub-section and the proviso is:

"Provided that no such application shall lie unless the employee or a representative union has in the prescribed manner approached the employer with a request for the change and no agreement has been arrived at in respect of the change within the prescribed period".

(4) What is contended is that an industrial dis­pute only arises when an employee, dissatisfied by any action on the part of the employer approaches the employer in the manner laid down in the pro­viso to section 42(4) and no agreement has been reached between the employer arid the employee alter that approach has been made, and Mr. Bhagwati says that till that approach takes place and the approach is found to be futile, there is no indus­trial dispute, and, says Mr. Bhagwati, in this case the approach was made at Ahmedabad, the approach did not result in an agreement, and there­fore the dispute arose in Ahmedabad and only the Labour Court at Ahmedabad can entertain this ap­plication. Turning first to S. 42(4) and the proviso, it is clear that the proviso is procedural and it obliges the employee to comply with the con­dition precedent laid down in the proviso before he can approach the Labour Court.

The proviso does not deal with the subject-matter of "the industrial dispute at all, but it makes it necessary that certain procedure has got to be followed before the employee becomes entitled to approach the Labour Court. The arising of the dis­pute at a particular moment has also been laid down for another reason and that is to provide the start­ing point of time for limitation, because under Section 79 (3) an application is respect of a dispute falling under Clause (a) of para. A of sub-section (i) of section 78 shall be made if it is a dispute failing under sub-cl. (iii) of the said clause, within three months of the employee concerned having last ap­proached the employer under the proviso to sub-sec­tion (4) of Section 42. But what we are concerned with to decide is: where did the dispute substan­tially arise?

(5) Now, the Act does not deal with the causes of action, nor does it indicate what factors will confer jurisdiction upon the Labour Court. But applying the well known tests of jurisdiction, a Court or Tribunal would have jurisdiction if parties reside within jurisdiction or if parties reside within jurisdiction or if the subject matter of the dispute substantially arises with jurisdiction. And therefore the correct approach to this question is to ask ourselves - where dl tins dispute substantially arise - and in our opinion the only answer to that question can be the dispute substantially arose in Bombay and the in Ahmedabad. What is the dispute? The dispute is not as to whether the employee approached the employer in Ahmedabad and no agreement was arrived at. The dispute is whether the employer was justified in dismissing the employee, and as much as the employment was in Bombay and the dismissal was in Bombay, it is difficult to under stand how it can possibly be urged that the dispute did not substantially arise in Bombay. What Mr. Bhagwati says is that there is no dispute till an approach is made by the employee under the pro­viso to section 42(4).

It is true that there would be no industrial dispute till the procedure laid down in the proviso to Section 42(4} is satisfied, but in a more important sense there would be no dispute at all if there had been no dismissal by the petitioner of respondent 5. In order dial there should be an industrial dispute, two ingredients are necessary. One is the fact that the employee should be aggrieved in one of the manners laid down in the Act, and the second is that he must comply with the procedure laid down in section 42(4). If either ingredient is absent, there would be no dispute. But to suggest that because the industrial dispute will arise provided the second ingredient is complied with, one must completely ignore the first ingredient, is to put for­ward a contention which is untenable. If, there­fore both the ingredients are necessary, the ques­tion that we have to ask is whether the first ingredient is sufficiently important to constitute substan­tially the subject-matter of the dispute, and there can be no doubt that what the Labour Court will be considering and deciding would be whether the employee was wrongly dismissed or discharged by the employer.

If that is going to be the subject-matter of the inquiry before the Labour Court, that subject-matter arose in Bombay and not in Ahmedabad. We express no opinion as to whether the Ahmedabad Court would equally have jurisdiction or not. We are only concerned with deciding whether on these facts the Bombay Labour Court has jurisdiction, and in our opinion if as in this case the employee was employed in Bombay and dismissed in Bombay and he is making a complaint about his dismissal and _ wants _ reinstatement and compensation, tin Bombay Labour Court has jurisdiction to decide this application. We, therefore, agree with the In­dustrial Court in the view it has taken.

(6) The result is that the petition fails and must be dismissed with costs.

Petition dismissed.