Little Sons and Company vs Shri Amar Nath and Others

M.R. Sharma, J.—The Petitioner in this case Messrs Little Sons and Company (hereinafter referred to as the Petitioner-Company) is a contractual partnership concern duly registered with the Registrar of Fims, Jammu and Kashmir State. It has its registered office at Srinagar and a small shipping office at Pathankot in Punjab which is the terminus station on Srinagar-Pathankot route. At the material time Pathonkot was an important railway junction of the Northern Railway where the oil depots were located. Since long, the Petitioner Company has been carrying on the business of transporting petroleum products from Pathankot the railway terminus--to Srinagar and several other places in Jammu and Kashmir State. It is alleged that the affairs and the business of the Petitioner-Company were being exclusively managed by it from its head office located at Srinagar. In the matter of Provident Fund of its employees, the Company is governed by the Jammu and Kashmir Provident Fund Act, 1961 and its employees were covered under the said Act. The Petitioner-Company has also obtained all the route permits of its oil tankers from; the State of Jammu and Kashmir. These permits are, however, countersigned by the authorities in the State of Punjab because the tankers have to cover some distance in the latter State.

Shri Amar Nath Respondent was employed in the Petitioner-Company as a driver. It is alleged that because of his old age and weak eye-sight, he became physically unfit to ply heavy vehicles on hilly routes because of which the management on compassionate grounds instead of discharging him from service directed him to work for a month with effect from January 1, 1970, in its workshop at Jammu and then to change place with Shri Bhairon Parshad, another worker, in the Company''s workshop at Pathankot. Since the Respondent remained absent without leave and did not report for duty till February 13, 1970, the Petitioner-Company discharged him from service on the assumption that he had abandoned the service. The Respondent complained against the order of his discharge before the Labour Department of the Punjab Government. Consequently, the Labour Commissioner, Punjab, Chandigarh, made a reference u/s 10(1)(c) of the Industrial Disputes Act, 1947 (hereinafter called the Act), to the Presiding Officer of the Labour Court, Jullundur, on the following point:

Whether the termination of service of Shri Amar Nath is justified and in order? If not, to what relief/exact amount of compensation is he entitled?

When the matter came up before the learned Presiding Officer of the Labour Court, the Petitioner-Company challenged the legality of the reference on the ground that the cause of action substantially arose in the Jammu and Kashmir State, inter alia, for the reasons that the Company was registered under the Jammu and Kashmir Partnership Act, that the route permits for the entire fleet of lorries and tankers had been granted by that State, that the operational area of the Company was in that State and that the registered office of the Company was also in that State.

The learned Presiding Officer of the Labour Court,--vide his judgment, dated January 15, 1973, negatived fthe challenge against the reference by observing as under:

In the written statement the Respondent (Petitioner-Company) expressly stated that the firm has got its branch office at Pathankot. It is not open to the Respondent to retract that admission and to say that there is no branch office of the firm at Pathankot. There is surely a branch, office of the Respondent at Pathankot. A telephone is installed there. There were two clerks previously and they presumably carried on correspondence. It seems that this office is also registered under the Punjab Shops and Commercial Establishment Act, 1958. The route permits issued by Jammu and Kashmir authorities are got countersigned by the Punjab State authorities because part of the route falls within this State. The Clerk at Pathankot is paid his salary at Pathankot. Amar Nath (WW 1) resides at Pathankot. The Respondent has got its workshop at Pathankot as is evident from the Respondent''s letter, dated 20th December, 1969 Ex. W1. This workman was paid his wages at Pathankot and used to deliver the complaints to the clerk at Pathankot. According to Amar Nath, there are as many as 6 employees working at Pathankot. As per letter, dated 20th December, 1969, he was posted at Pathankot/Jammu. His services were terminated at Pathankot where he resides and he received the letter Ex. W/1. The cause of action thus substantially arose at Pathankot where the Respondent has got its branch office.

The Petitioner-Company then filed the instant petition, which came up before me for hearing. On the authority of National Tobacco Co., Employees Union (Regd), Jullundur Vs. Manohar Singh and Another, , it was contended before me that since the head office of the Petitioner-Company, which exercised administrative control over the Respondent, was located at Srinagar, the authorities in the State of Punjab were not competent to make the reference. I was, however, of the view that the State in which the branch office of the Petitioner-Company was located was equally interested in maintaining industrial peace and if such a State was not allowed to intervene in the matter the business community could easily thwart the provisions of the Act by working at one place and exercising control from another. Since it was not possible for me to take a different view white sitting in a Single Bench, I directed that the papers be placed before my Lord the Chief Justice for constituting a Division Bench. This is how this case has been placed before this Bench for decision.

The learned Counsel for the Petitioner-Company has contested the finding of fact recorded by the learned Presiding Officer of the Labour Court by submitting that only one Clerk of the Petitioner-Company was posted at Pathankot, who did not exercise control over the Respondent. He has also submitted that the Respondent did not join duty at Pathankot and so no cause of action arose at that place. It is settled law that this Court in exercise of jurisdiction under Article 226 of the Constitution does not normally upset the findings of fact recorded by the subordinate Tribunals. A writ of certiorari can be issued only for correcting errors of law which are apparent on the face of the record. In Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, , the Court observed as under:

On these authorities, the following propositions may be taken as established:

(1) ''Certiorari'' will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it.

(2) ''Certiorari'' will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice.

(3) The Court issuing a writ of ''certiorari'' acts in exercise of a supervisory and not appellate jurisdiction.

One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to re-hear the case on the evidence and substitute its own findings in ''certiorari''. These propositions are well settled and are not in dispute.

The same view was reiterated in Syed Yakoob Vs. K.S. Radhakrishnan and Others, .

Even otherwise, there is abundant material on the record to warrant a finding that the Petitioner-Company did have a branch office at Pathankot and substantial part of its business was being carried out at that place. The letter, dated December 20, 1969, Annexure ''E'' written by the Petitioner-Company mentions that after serving for one month at Pathankot the Respondent was to report at Jammu. A copy of this letter had also been sent to its Pathankot office. Similarly, letter, dated February 13, 1970, Annexure ''F'' terminating the services of the Respondent was addressed to him at Pathankot and its copy was also sent to the Pathankot branch office. The Petitioner-Company on its own showing is engaged in the business of carrying petroleum products from the oil depots which are located at Pathankot. Further, the Respondent was to work at the repair workshop of the Company at Pathankot. In the face of these circumstances, it cannot be held that the conclusion of fact arrived at by the Tribunal as extracted above was erroneous.

It was then urged on behalf of the Petitioner-Company that since its business was being managed at Srinagar, the Jammu and Kashmir Government alone was competent to make a reference u/s 10(1)(c) of the Act because the award given by a Labour Court could effectively be executed by the Government of that State only. Reliance in this connection was placed on Lipton Limited and Another Vs. Their Employees, . In that case, the dispute arose between M/s Lipton Ltd. London having an office at Asaf Ali Road, New Delhi and its employees of the Delhi office, who had formed a Union. Some of the employees were employed out of Delhi. The Union raised an industrial dispute which was referred to the Additional Industrial Tribunal, Delhi, by the Delhi State. The argument against the competence of the Additional Industrial Tribunal, Delhi, to entertain the dispute was disposed of by the Supreme Court in the following terms:

It may be made clear, however, at this stage that one of the points taken before the Industrial Tribunal on behalf of the Lipton Ltd., 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. This point of jurisdiction was decided against the Appellant and the Industrial Tribunal pointed out that all the workmen of the Delhi office, whether they worked in Delhi or not, received their salaries from the Delhi office they 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 Section 2 of the Industrial Disputes Act, 1947, relating to the dispute which arose between the Lipton Ltd. and the Union and u/s 18 of the said Act the award made by the Tribunal was binding on all persons employed in the Delhi office. The Appellate Tribunal upheld the decision of the Industrial Tribunal on this point and though this question of jurisdiction was raised in the appeals before us, it was not seriously pressed by the learned Attorney General. We are of the view that the Industrial Tribunal had jurisdiction to adjudicate on the dispute between the Lipton Ltd. and its workmen of the Delhi office.

The aforementioned observations, however, do not serve as an authority for the proposition that the reference of the dispute must of necessity be made by the State within the territory of which the head office of the Company was situate. The important point to be noticed is that the dispute had in fact been raised at Delhi by the Union which represented the workers.

The next case relied upon by the learned Counsel for the Petitioner-Company is Superintending Engineer and Others Vs. Workmen of Machkund Hydro Electric Project and Another, . In that case the dispute arose between the management and the workmen of the Machkund Hydro Electric Project which was being jointly run by the States of Orissa and the then composite State of Madras. The dispute arose with reference to the territory which fell in the State of Orissa. The Government of the said State made a reference u/s 10 of the Act. It was argued that since the Project jointly belonged to the States of Orissa and Andhra Pradesh, both the States had to join together for making a valid reference u/s 10 of the Act. This argument was turned down in these terms:

Thus the fact that a particular Government happens to be the employer Government is wholly irrelevant for the purpose of deciding what is the appropriate Government. In case of joint ownership, ass in the present case, it is that Government with reference to the territory which is the appropriate Government. It is the territorial Government of the State where the industry is situated that is the appropriate Government. Nowhere in the Industrial Disputes Act, there is any provision that a Government can be appropriate Government by virtue of its ownership of the industry concerned. In the present case, the territorial nexus of a particular industry, namely, the Hydro-Electric Project, is in Orissa. That is to say, the place wherefrom the Project is being controlled is in Orissa--the power House which generates electricity is in Orissa--the machinery, works, etc., are all in Orissa. The Act does not contemplate a joint reference by two Governments. In fact, no joint appropriate Government is contemplated by the statute. Where the industry is in Orissa, namely the location of the Power House, a portion of the Dam, etc. and the reference had, in fact, been made by Orissa Government to the Industrial Tribunal, Orissa, such a reference cannot be challenged. This apart, there is another aspect, namely that the primary consideration in this case is the existence of the Industrial dispute. The Legislature calls the statute the Industrial Disputes Act and accordingly it is the settlement of such an industrial dispute either by conciliation or failing conciliation, by adjudication which is the primary object of the statute. This readily leads us to consider where exactly the industrial dispute arises. In this particular case the notice of retrenchment was given from Orissa. The dispute arose at Machkund which is in Orissa. It is the Machkund Office that controls the affairs of the Project. In the present case the Industrial Tribunals; in his award on the preliminary issue of the Orissa Gazette on February 5, 1958 clearly gave his finding on facts in detail as to ''the'' administration of the project from Machkund in Orissa.

We fail to understand how the learned Counsel for the Petitioner-Company can draw any, assistance from this authority. It is no doubt true that the Division Bench did observe that it was the territorial Government of the State where the industry was situate and that was the appropriate Government but from these observations an inference cannot be drawn that it supported the case of the Government to make a reference in whose territory the controlling authority of the project alone was located. On the other hand, the Bench duly emphasised the fact that the dispute arose at Machkund which was in the State of Orissa.

It is significant to mention that the object of the Act is to ensure fair terms to the workmen and to prevent disputes between the employers and the employees so that production might not be adversely affected and the larger interests of the public might not suffer. Its provisions have to be interpreted in a manner which advances the object of the Legislature. The Legislature has cast a duty on the appropriate Government to procure industrial peace by creating machinery for easy and early settlement of industrial disputes. Labour unrest may create serious law and order problems for a State and such problems can be effectively solved by the State within the geographical limits of which they arise. Let us take an hypothetical case in which the workmen of a particular business are being victimised in State ''A'' and its controlling office is situate in State ''B'' If it is held that the Government of State ''A'' is not competent to make a reference, the affected workmen would necessarily have to approach the Government of State ''B''. That Government might not be concerned about the industrial unrest in a sister State or it might decide not to interfere in the affairs of that State. Even if it does make a reference the dispute would have to be decided by a Labour Tribunal or a Court appointed by it which in a given case might be located far away from the place where the dispute actually arose. In that case, both the parties to the dispute might be confronted with innumerable difficulties like appearance before a court which is situate at a great distance and procuring witnesses to appear before it. Such a state of affairs would completely frustrate the object of the Act. When this situation was put to the learned Counsel for the Petitioner-Company, he simply stated that if such was the requirement of law, the parties and their witnesses would have to undergo such ordeals. However, a court of law cannot comprehend such a situation without entertaining serious apprehensions in its mind.

The term "appropriate Government" is defined in Section 2(a) of the Act. In Clause (i) of that subjection the Central Government has been designate as the appropriate Government for some special industries. Clause (ii) of that sub-section states that in relation to any other dispute the State Government shall be the appropriate Government. It is significant to mention that this definition does not attach any importance to the place where the controlling office of the industry is situate. On the other hand, the words "in relation to" denote that wherever a dispute between the industry and its workmen arises the Government having jurisdiction over that area would be competent to make a reference. It is not necessary that the head office or the controlling office of the industry should be present in that area. All that is required is that a part of the industry should exist there. In Lalbhai Tricumlal Mills Ltd. Vs. Manubhai Motilal Vin and Others, it was observed--

But what we are concerned with to decide is where did the dispute substantially arise? Now, the Act does not deal with the cause 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 the parties reside within jurisdiction or if the subject-matter of the dispute substantially arises within jurisdiction.

This view was affirmed by the Supreme Court in Indian Cable Company Ltd. v. Its Workmen (1962) 1 LLJ 409 (S.C.)

In Workmen of Shri Rangavilas Motors (P.) Ltd. and Another Vs. Shri Rangavilas Motors (P) Ltd. and Others, , it was observed as under:

The order of transfer, it is true, was made in Krishnagiri at the Head-office, but the order was to operate on a workman working in Bangalore. In our view the High Court was right in holding that the proper question to raise is where did the dispute arise? Ordinarily, if there is a separate establishment and the workman is working in that establishment, the dispute would arise at that place. As the High Court observed, there should clearly be some nexus between the dispute and the territory of the State and not necessarily between the territory of the State and the industry concerning which the dispute arose.

In Hindustan Aeronautics Ltd. Vs. The Workmen and Others, , the dispute arose between the Barrackpore Branch of the Company and its workmen. An argument was raised that the Barrackpore Branch being under the control of Bangalore Divisional Office of the Company, the West Bengal Government was not competent to make the reference. This argument was repelled with the following observations:

The other leg of the argument to challenge the competency of the West Bengal Government to make the reference is also fruitless. It may be assumed that the Barrackpore branch was under the control of the Bangalore division of the company. Yet it was a separate branch engaged in, an industry of repairs of aircrafts or the like at Barrackpore. For the purposes of the Act and on the facts of this case the Barrackpore branch was an industry carried on by the company as a separate unit The workers were receiving their pay packages at Barrackpore and were under the control of the officers of the company stationed there. If there was any disturbance of industrial peace at Barrackpore where a considerable number of workmen were working the appropriate Government concerned in the maintenance of the industrial peace was the West Bengal Government. The grievances of the workmen of Barrackpore were their own and the cause of action in relation to the industrial dispute in question arose there. The reference, therefore for adjudication of such a dispute by the Governor of West Bengal was good and vaild.

In Ram Kishan v. Shambu Nath Vaid and Ors. 1962 (2) LLJ 294, the dispute arose between the owner of four pharmacies located at Amritsar, Mussoorie, Delhi and Dehra Dun and its employee who was first employed at Dehra Dun and then at Amritsar. The employee was transferred to Mussoorie. He raised an industrial dispute which was referred by the State of Punjab to the Industrial Tribunal. The competency of the Industrial Tribunal to decide the matter was challenged on the ground that with regard to an employee who had been transferred to Mussoorie the Punjab Government could not be said to be the appropriate Government. A Division Bench of this Court held that since the dispute really arose at Amritsar the latter Government was competent to make the reference. This view was upheld by a Division Bench of the Madhya Pradesh High Court in S.N. Sunderson and Company New Delhi v. Presiding Officer Labour Court No. 1 Jabalpur and Anr. 1973 LIC 991 wherein it was held that where a firm having factory in a State removed an employee, the dispute having arisen in that State, the Government of that State and not the Government of the State where the firm had its head office was the appropriate Government to make the reference.

From what has been stated above, it is obvious that for determining the appropriate Government competent to make a reference of the dispute due regard has to be paid to the place where a dispute arises. When this principle of law is applied to the facts found by the learned Presiding Officer of the Labour Court which have been extracted in, the earlier part of this judgment, it becomes obvious that it was competent for the State of Punjab to make the impugned reference.

With utmost respect to the learned Judge who decided National Tobacco Co., Employees Union (Regd), Jullundur Vs. Manohar Singh and Another, , it might be observed that the view taken by him cannot be regarded correct. He appears to have attached more importance to the fact that the controlling office of the industry was located outside the State of Punjab than to the fact that the dispute itself arose within the area of the State of Punjab.

For the reasons mentioned above, we find no force in this petition and dismiss the same with Costs.

R.S. Narula, C.J.

I agree.