Kerala High Court · 2012

THOMAS P. JOSEPH, J.----------------------------------------R.S.A.No.1152 of 2011---------------------------------------Dated this 25th day of January, 2012JUDGMENTHeard learned counsel for appellant. The appeal isadmitted on the following substantial questions of law:(i)Whether findings of the Courts below thatcivil court has no territorial jurisdiction to try the caseis legally sustainable?(ii)Whether findings of the Courts below thatthe dispute is an Industrial Dispute falling under theprovisions of Industrial Disputes Act and therefore civilcourts jurisdiction is barred under the provisions ofI.D.Act is legally correct?Respondents appear through standing counsel.2.Since dismissal of the suit is on the ground of lack ofterritorial jurisdiction before evidence is recorded and as agreedby counsel on both sides, records are not called for. Instead, Ihave gone through a copy of the plaint given to me by the learnedcounsel for appellant.3.Appellant, as she pleads was working as AssistantManager (General), in the office of second respondent atAhammedabad, Gujarat and retired as such on 30.06.1997.According to her, she opted for service under the Food R.S.A.No.1152 of 2011-: 2 :-Corporation of India Rules (for short, "the FCI Rules”) and hencecame under the Contributory provident fund scheme. Onretirement she was entitled to get `.2,84,773.74/- by way ofprovident fund. Of the said amount, `.2,20,419.00/- was paid toher on 20.08.1997. She demanded payment of the balanceamount. Thereon, a further payment of `.33,355/- was made inJune, 1997 leaving a further balance of `.25,527.19/-. Appellantfiled the suit in the Court of learned second Additional Munsiff,Thrissur claiming the said balance amount and penal interest@18% per annum from 30.06.1997. Certain other claims are alsomade by way of interest for delayed payment of the amount.Appellant who is residing at Kalpaka Gardens, Poonkunnam,Thrissur averred in paragraph 13 of the plaint that cause ofaction for the suit arose on 30.06.1997, the date on which sheretired from the service and the subsequent dates referred totherein within the territorial jurisdiction of learned Munsiff.4.Respondents resisted the suit on various groundsincluding lack of territorial jurisdiction for the Court. Theycontended that the suit ought to be filed at Ahammedabad inGujarat (wherefrom appellant retired). They also contended thatthe suit is barred since the dispute is one coming under the R.S.A.No.1152 of 2011-: 3 :-Industrial Dispute Act (for short, "the I.D Act”).5.Learned Munsiff considered the preliminary issue andheld that he has no territorial jurisdiction to entertain the suitsince appellant retired from Ahammedabad in Gujarat and sincethe dispute comes within the purview of the I.D Act. The suit wasdismissed. Learned first Additional District Judge, Thrissur hasconfirmed that decision in A.S.No.364 of 2004. Hence thesecond appeal urging the above substantial questions of law.6.Learned counsel for appellant has contended, placingreliance on the decision in Pillai K.D Vs. Chairman, ONGCand Ors. (ILR 2008(3) Kerala 591) that provident fund ispayable at the place where the retiree resides after retirementand hence the Court within whose jurisdiction appellant-retireeresides has got jurisdiction to entertain the suit. It is alsocontended that since the appellant retired as Assistant Managerand was engaging in managerial work, is not a 'workmen' asdefined in Sec.2(s) of the I.D Act and hence dispute betweenappellant and respondents is not an 'industrial dispute' as definedin Sec.2(k) of the said Act.7.Learned counsel for respondents has brought to mynotice the decision of the Supreme Court in R.S.R.T.C and Ors. R.S.A.No.1152 of 2011-: 4 :-Vs. Deen Dayal Sharma (2010 KHC 4316) and contended thatjurisdiction of the Civil Court is dependent on the nature of rightsought to be enforced.8.So far as issue regarding territorial jurisdiction isconcerned, it is not disputed that appellant resides within theterritorial jurisdiction of learned Munsiff before whom the suitwas instituted. Learned Munsiff took the view that sinceappellant retired at Ahammedabad, he has no jurisdiction toentertain the suit.9.In the decision relied on by learned counsel forappellant, though in relation to payment of pension andjurisdiction of the High Court to invoke under Art.227 of theConstitution, it is held that pension is payable at the place wherethe pensioner resides after retirement. There is no reason whythat principle should not apply in the matter of payment ofprovident fund. The decision referred above has to be applied inthe matter of payment of provident fund also. As above stated,appellant, after retirement is residing within the territorialjurisdiction of learned Munsiff. The provident fund was payableat the place where appellant is residing after retirement. R.S.A.No.1152 of 2011-: 5 :-10.Sec.20 of the Code of Civil Procedure (for short, "theCode”) deals with suits not otherwise provided for in Secs.15 to19 and clause (c) says that the suit may be instituted in a Courtwithin the local limits of whose jurisdiction the cause of action,wholly or in part arises. Referring to the decision in Pillai K.DVs. Chairman, ONGC and Ors. (supra) I stated that theprinciple stated therein must apply to payment of provident fundalso. If that be so, non payment of the provident fund as pleadedby the appellant at her place of residence is part of cause ofaction pleaded by appellant and that having arisen within thelocal limits of jurisdiction of learned Munsiff, the said Court hasjurisdiction to entertain the suit. Finding to the contrary cannotbe sustained.11.Coming to the next question whether the civil courthas jurisdiction to entertain the suit in view of provisions of theI.D Act, as aforesaid, the claim is for payment of balance amountof provident fund and for damages by way of interest on accountof the delayed payment. The Supreme Court in R.S.R.T.C andOrs. Vs. Deen Dayal Sharma (supra) referring to Sec.2(k) ofthe I.D Act has held that nature of right sought to be enforced isdecisive in determining whether jurisdiction of the Civil Court is R.S.A.No.1152 of 2011-: 6 :-excluded or not. Sec.2(k) of the Act defines 'industrial dispute'and it takes in a dispute between the employer and workman.'Workman' is defined in Sec.2(s) and sub clause (iii) excludespersons who are employed mainly in managerial oradministrative capacity while sub clause (iv) excludes personsemployed in a supervisory capacity drawing wages exceeding`.1600/- per month.12.In this case, it is not very much in dispute thatappellant was working as Assistant Manager ie, in a managerial,administrative or supervisory capacity. She was drawing morethan `.10,000/- per month as salary. Clause (iii) and (iv) of SubSec.(s) of Sec.2 of the I.D Act exempt appellant from the categoryof workman. Hence the dispute that has arisen between theappellant and respondents is not one which is entertainableunder the I.D Act. The finding of courts below on that count alsois erroneous.13.The above discussions leads me to the conclusion thatlearned Munsiff, Thrissur has jurisdiction to entertain the suit.Substantial questions of law framed are answered above.The second appeal is allowed. Judgment and decree oflearned second Additional Munsiff, Thrissur in O.S.No.2652 of R.S.A.No.1152 of 2011-: 7 :-2001 and of learned first Additional District Judge, Thrissur inA.S.No.364 of 2004 are set aside. It is found that learned Munsiffhas jurisdiction to entertain the suit. Learned Munsiff is directedto proceed with the trial and disposal of the suit as providedunder law. Parties shall appear before learned Munsiff on29.02.2012. (THOMAS P. JOSEPH, JUDGE)Sbna/-