WP No.388 of 2003
                       IN THE HIGH COURT AT CALCUTTA
                     Constitutional Writ Jurisdiction
                               ORIGINAL SIDE




                              IN THE MATTER OF:-
                              HONGKONG & SHANGHAI BANKING CORPORATION
                                    LTD.
                                   Versus
                               UNION OF INDIA


   For Petitioner : Mr.Samaraditya Pal, Sr. Advocate.
                    Mr.Debdutta Sen, Advocate with
                    Mr.Ashit Dey, Advocate.

   For Respondent      :Mr.A B. Roy, Advocate.

BEFORE:

The Hon'ble JUSTICE ANIRUDDHA BOSE Date: 20th May, 2011.

The Court :-In this writ petition the petitioner, Hongkong & Shanghai Banking Corporation Ltd. (the bank), a banking company organized under the laws of Hongkong has in substance challenged the legal validity of a conciliation proceeding initiated under the Industrial Disputes Act, 1947. Such conciliation proceeding commenced after the respondent no. 4, who was an employee of the bank had raised an industrial dispute on the allegation of illegal termination of his service. Case of the bank is that he had tendered resignation on his own whereas the 2 contention of the respondent no. 4 is that he was compelled to do so.

The present proceeding, in fact, is the second round of litigation over this dispute. I shall refer to the earlier proceeding in connection with the same dispute in later part of this judgment.

At the conciliation stage itself, the bank has come to this Court challenging the jurisdiction of the Conciliation officer to proceed with the matter, which was initiated upon issue of certain notices. Specifically, the petitioners have sought quashing four notices issued by the Assistant Labour Commissioner (Central), pertaining to initiation of the conciliation proceeding. Copies of these notices have been made Annexures "P-16", "P-18", "P-20" and "P-21". On behalf of respondent no.4 preliminary objections on maintainability of this proceeding has been raised on two counts. It is the case of the respondent no.4 that being a Company incorporated outside India, the petitioner cannot maintain this writ petition invoking Article 226 of the Constitution of India.

The second ground of the objection is over jurisdiction of this Court to hear out the writ petition in the Original Side. Case of the respondent no. 4 is that all the respondents in this proceeding have their offices outside the Ordinary Original Civil Jurisdiction of this Court and hence the writ petition ought to 3 have been filed in the Appellate Side of this Court. A large body of authorities have been relied on by the learned counsel appearing for the parties to this proceeding in support of their respective stand, and many of these decisions are on the same point of law. In this judgment, to avoid repetition, I shall refer to only the main decisions on a particular point, and to those decisions which are relevant for effective adjudication of this proceeding. I shall deal with the preliminary objection first before I examine the writ petition on merit.

On the point that a foreigner or a foreign company is not entitled to maintain a writ petition, there is no specific bar in the Constitution that prevents a corporation incorporated outside the country to maintain a petition under Article 226 of the Constitution of India. Article 226 does not lay down any eligibility criteria based on citizenship of the seeker of the constitutional remedy. The basic requirement for invoking the jurisdiction of the Writ Court is that the legal right of the complainant should be breached by any person or authority, who fits the description of "State" under Article 12 of the Constitution of India. In exceptional cases, a "person" or "authority" who is not "State" within the meaning of Article 12 of the Constitution can also be subjected to jurisdiction of the Writ Court. A person, who is not a citizen, however would not be 4 entitled to enforce rights which are preserved for a citizen of this country only. Fundamental Rights guaranteed under Article 19 of the Constitution of India would come under this genre of rights. Reliance has been placed on behalf of the respondent no. 4 on the decisions of the Hon'ble Supreme Court in the cases of State Trading Corporation Vs. Commercial Officer (AIR 1963 SC 1811), D. S. Nakara Vs. Union of India & Ors. (AIR 1983 SC 130) and Bandhua Mukti Morcha Vs. Union of India (AIR 1984 SC 802) and British India Steam Navigation Company Ltd. Vs. Jagjit Singh (AIR 1964 SC 1451). None of these authorities however support the argument of the private respondent that a company incorporated outside the country cannot invoke the Constitutional Writ Jurisdiction of the High Court to enforce their legal right. In the cases of State Trading Corporation (supra) and British India Steam Navigation Co. Ltd. (supra), it has been held that an incorporated company cannot claim to be a citizen of India, and hence cannot be entitled to rely upon the rights guaranteed under Article 19(1) of the Constitution of India. But in the event an incorporated company, being a juridical person suffers an adverse order emanating from a public body having been passed without the authority of law, then such a company would be entitled to apply for relief under Article 226 of the Constitution of India. Their claim, however, would not be based on any right preserved or 5 guaranteed for citizens only under the Constitution or under any other law.

This position would not change in respect of a company incorporated outside this country. A foreign company in any event has a right to sue and there is no bar under the Civil Procedure Code also in that regard. In the Constitution of India, rights under Article 19 can be enforced by a citizen alone. So far as Articles 14 and 21 are concerned, the expression 'citizen' has been omitted and the fundamental right guaranteed under these Articles protect the citizens and non citizens alike. Preliminary objection on maintainability of this petition on this ground is accordingly rejected.

Now I shall turn to the question as to whether this writ petition filed in the Original Side of this Court can be examined by me or not. This issue is a procedural matter, as in the event a writ petition is wrongly filed in the Original Side Jurisdiction of this Court, it does not lead to its automatic dismissal. Practise of this Court has been to direct conversion of the writ petition as an appellate side matter, by allocating a fresh registration number. This aspect of the controversy was examined by a Division Bench of this Court in an unreported judgment in the case of (Appeal No. 258 of 1973) Messrs. Arthur Butler & Co. Vs. 6 Union of India & Ors. decided on 20 September 1973. It was held in this case, when an objection of this nature was taken:-

"Even assuming that the writ petition ought to have been marked as an Appellate Side matter and ought to have been moved before one of the Learned Judges of this Court taking the writ petitions in the Appellate Side, the marking of the writ petition and the issue of the Rule nisi by Ghose, J. is in our view a mere irregularity which does not affect the jurisdiction of this Court to issue a Rule nisi in a petition under Article 226 of the Constitution. It can by no means be said that the Rule nisi issued by this Court is a nullity and is altogether void merely because the petition was entertained by Ghose, J. who was dealing with the writ petitions of the Original Side of this Court at that point of time. Furthermore, it must be noticed that the respondents moved the application for taking the writ petition off the file before Ghose, J., on the assumption that a writ petition which has been entertained by the Court and on which a Rule nisi has been issued by the Court ought to be taken off the file not on the ground that the Court had no jurisdiction but on the grounds set out in the respondent's application. Lastly it is to be noticed that the Rules framed by this Court does not in any way curtail the jurisdiction of a Learned Judge who is dealing with the writ petitions in the Original Side from entertaining an application which though marked as "Original Side" ought to have been marked as "Appellate Side". In our view, this contention of counsel for the respondents cannot be accepted."

7

The same view was taken by another Division Bench of this Court in the case of United Province Electric Supply Co. & Ors. Vs. Industrial Tribunal (III) Allahabad & Ors. (79 CWN 312), and in two judgments delivered by two Hon'ble Single Judges of this Court in the cases of Krsihnatosh Das Gupta Vs. Union of India [1979(2)CLJ 104] and Sakti Steel Traders Vs. Ashok Chakraborty [(1991) 2 CLJ 290]. On behalf of respondent no. 4, two Division Bench judgments were relied upon, being The University of Calcutta Vs. Sri Shyamal Kumar Das [1985(1) CHN 187] and [A.P.O.T. No. 114 of 2005] State of West Bengal Vs. Mohanlal Chakraborty & Ors.. In the case of Shyamal Kumar Das (supra), all the respondents had their offices within the Original Side Jurisdiction of this Court and no part of cause of action had arisen outside the said Jurisdiction. In that context, it was held that the proceeding was not maintainable in the Appellate Side of this Court. In the case of Mohanlal Chakraborty (supra) also, it was finding of the Court that the entire cause of action had arisen outside the Original Side Jurisdiction of the Court. In that writ petition, one respondent was impleaded with their office within the Original Side Jurisdiction of the Court, but no relief was prayed for against them. The Division Bench held, after referring to the prayers made in the writ petition:-

"These are the two main prayers in the writ petition and from those prayers we find that no relief has been claimed against the Board and in fact no relief has been granted against the Board by the Court either.

We are of the opinion that the entire cause of action is outside the Original Side Jurisdiction of this Court and the respondents are also outside that jurisdiction of this Court.

Under these circumstances, moving this writ petition on the Original Side of this Court and obtaining an order is thus an abuse of the process of the Court. Even in case of writ petitions this demarcation between Original Side and Appellate Side is still being maintained in the Court under the Rules. There is no reason why that rule should not be followed. On our repeated query, learned counsel for the respondents/writ petitioners could not point out the reason why Original Side Jurisdiction was invoked nor could he point out from the writ petition any cause of action against any respondents arising within the Original Side. For the reasons aforesaid we allow both the section 5 application and the appeal by treating it on the day's list.

We set aside the order passed by the learned Judge dated 15th of February 2004 on the Original Side of this Court. We make it clear that we have not gone into the merits of the case and it is also made clear that the writ petitioners/respondents, if so advised, are at liberty to initiate such 9 proceedings are available to them under the law on the Appellate Side of this Court.

                    It   may     be      pointed     out   that     this   objection       of
                    invoking       the      Original     Side    jurisdiction      of    this
                    court    was      taken    by    the   learned    counsel      for    the

appellant orally but in our opinion since the point goes to the root of the jurisdiction, we have entertained the same."

In this writ petition, however, specific plea of the petitioners is that the cause of action of the present proceeding arose from certain notices received by them in their office which is located within the Ordinary Original Civil Jurisdiction of this Court. Receipt of such notices form an integral part of the cause of action of the present proceeding. In the two Division Bench judgments of this Court in the cases of Shyamal Kumar Das (supra) and Mohanlal Chakraborty, there was specific finding that no cause of action or part thereof arose outside Original Side Jurisdiction in the former, and within the said jurisdiction in the latter authority. Both these decisions are thus factually distinguishable vis-à-vis the context of this writ petition. Preliminary objection on this ground is also rejected.

Turning to the merit of the case, I find the main ground on which dispute is raised by the writ petitioner is that the respondent no.4 is not a workman within the meaning of section 10 2[s] of the Industrial Disputes Act, 1947. Certain jurisdictional issues have been raised over the power or authority of the Conciliation Officer in issuing such notice. It has also been contended that the conciliation proceeding was earlier closed by the Conciliation Officer, and once a proceeding is closed, no fresh proceeding can be instituted on the same dispute.

It appears that the respondent no. 4 had filed a suit before the City Civil court for a declaration that the letter of resignation submitted by him to the bank was null and void. The respondent no. 4 had raised the dispute initially in or about 21 July 1999, and the petitioners had taken the same stand at that point of time also. Thereafter, by a notice dated 26 November 1999, the respondent no. 3 (the Assistant Labour Commissioner) called the petitioners for conciliation. There was further exchange of correspondence between the petitioners and the respondent no. 3, and the petitioners had approached this Court by filing a writ petition (W.P. No. 640 of 2000) challenging the legality of the said notices. The petitioners had obtained an interim order staying the said proceeding in that writ petition. On 7 January 2000, however, the said conciliation proceeding was disposed of and the file was closed by the Conciliation Officer on the ground that the same dispute was pending before the City Civil Court and hence the matter was sub-judice. The respondent no. 4 11 however was given liberty to raise the dispute afresh after the City Civil Court decided on the issue. In view of this order, the petitioners did not press the earlier writ petition which was dismissed as withdrawn. Subsequently, the suit filed by the respondent no. 4 being T.S. No. 1326 of 1999 was withdrawn by the respondent no. 4 on 18 May 2000 with liberty to him to institute a fresh suit on the same subject-matter in accordance with law. It appears that on 7 December 2001 fresh dispute was raised by the respondent no. 4.

Whether a person is workman or not is essentially a question of fact and ordinarily the Writ Court would not enter into a controversy of this nature. Before me, no outstanding case has been made out by the writ petitioners as to why the Writ Court would enter into such a factual inquiry. The Industrial Disputes Act, 1947 is a self-contained code having elaborate procedure for determination of issues arising out of an industrial dispute. There is no ex facie illegality on the part of the respondent authorities in issuing the notices and the proceeding under the said Act is at a preliminary stage. The petitioner would have enough opportunity under the said statute before the forum prescribed by the statute for agitating their case that the respondent no.4 is not a workman. There is no material from which this Court can come to a finding without embarking on a factual 12 enquiry that the respondent no.4 is not a workman. A question whether an employee has been dismissed or he has resigned is again a factual issue, which requires determination by evidence. The Writ Court is not the appropriate forum for adjudicating of that issue.

So far as validity of the present conciliation proceeding is concerned in view of closure of the earlier proceeding, the said proceeding was closed under certain special circumstances. Liberty of the respondent no. 4 to raise the dispute afresh was given in the same order by which the said proceeding was closed. That part of the order has not been challenged by the petitioners. Now that the suit of the respondent no.4 instituted in the City Civil Court stands withdrawn, the reason for closure of the earlier proceeding no more survives. I do not find any illegality on the part of the respondent authorities in proceeding in respect of the same dispute afresh.

I am, accordingly, of the view that the petitioners have not made out any case for invoking the Constitutional Writ Jurisdiction of this Court seeking invalidation of the proceeding, which has been instituted before the authorities under the Industrial Disputes Act. The petitioners shall be entitled to raise the points on the strength of which the present petition has been filed in course of the proceeding before the authorities 13 under the said Act. The writ petition is accordingly dismissed. All interim orders passed in this matter shall stand dissolved.

Since the writ petition itself is being dismissed, connected application being GA No.1299 of 2003 for all practical purpose becomes infructuous and shall stand disposed of.

The interim order passed in this writ petition shall stand dissolved. Let the appropriate authority under the Industrial Disputes Act take further steps in this matter expeditiously so that the controversy could be resolved at an early stage. I however make it clear that the forum constituted under the said Act shall examine the question of maintainability of the dispute on its own merit. I have refrained from addressing the said issue on merit for the reasons indicated in the earlier part of this judgment.

(ANIRUDDHA BOSE, J.) 14 LATER:

Prayer is made for stay of operation of the judgement and order. Mr. Roy opposes grant of any stay on operation of this judgment. However, considering the fact that the interim order was subsisting in this matter for a reasonably long period of time, there shall be a stay of operation of this judgement and order for a period of three weeks that is uptil 13th June, 2011.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

(ANIRUDDHA BOSE, J.) nm/nb