Ramesh Chandra Singh v. Union of India — 1980 DIGILAW 1016 (ALL)

JUDGMENT 1. This is a plaintiffs second appeal, he having failed to get relief from the lower appellate court. The plaintiff came to the court on the allegations that he had been appointed as a Garden Supervisor on 10-9-62 and his father was also working as office Superintendent in the defendant's Institute. In June 1964 Sri S. C. Gupta was appointed Director of the Institute. Plaintiffs father Suba Singh also retired from the Institute and was reappointed as Head Assistant in the Sugar Technologists Association of India, Kanpur, and later on he became Head Assistant-cum-Accountant. Sri S. C. Gupta was elected Hony. Secretary of the Association in 1964 but for some reason his relations with the plaintiffs father became strained and on that account plaintiffs father was removed from the service. Because of those bad relations with the plaintiffs father, Sri Gupta also had a feeling of suspicion against the plaintiff and caused unreasonable and illegal loss to him. It is alleged that on 1- 2-67 the plaintiff was served with an office order of date informing him that the office of Garden Supervisor will stand abolished with effect from 1-3-67 and that the plaintiff was being given a notice under Rule 5 (1) of Central Civil Services (Temporary Service) Rules, 1965 and the services of the plaintiff were terminated with effect from the date of the service of the notice on him. In the notice it was stated that the plaintiff would be paid a month's salary and allowance in lieu of the notice period. The plaintiff filed the present suit challenging the said order on a number of grounds including that the order was by way of punishment and no opportunity to show cause had been given to him, that the order was hit by Rules 14, 15, 34 and 37 of the aforesaid rules and also by Art. 311 (2) of the Constitution. It was also alleged that the removal of the plaintiff was in violation of Sections 25-F and 25-G of the Industrial Disputes Act, 1947. The plaintiff further alleged that the order was mala fide and against the principle of-natural justice, equity and good conscience and lastly that the notice had been issued without payment of one month's salary in lieu thereof and as such the same was invalid. 2. The suit was contested by the defendant. The allegations made by the plaintiffs were denied. The plaintiff further alleged that the order was mala fide and against the principle of-natural justice, equity and good conscience and lastly that the notice had been issued without payment of one month's salary in lieu thereof and as such the same was invalid. 2. The suit was contested by the defendant. The allegations made by the plaintiffs were denied. It was stated that the post had been abolished by the Government and therefore, he did not have any right to remain in service, the removal was not on account of any malice by way of penalty but was in conformity with the nature of service conditions, the services of the plaintiff were not governed by the Industrial Disputes Act and he was not workman within the meaning of that Act. 3. The trial court framed 4 issues but we are concerned with issue No. 1 only. It was held that Sri 'S. C. Gupta had no malice against the plaintiff and that various incidents of harassment as alleged by the plaintiff were not proved. The post of the plaintiff was also not abolished at the instance of Sri Gupta with effect from 1-3-67, the plaintiff was also not a quasi-permanent employee. The trial court also held that the order of removal was not hit by Art. 311 (2) or by the provisions of Industrial Disputes Act. The trial court, however, decreed the suit on the ground that the order was not issued in accordance with the rules and it was necessary that either the one month's notice should have been given to the plaintiff or at the time of serving notice one month's salary and dues should have been offered to the plaintiff and since this has not been done the removal order was invalid. On this ground the suit of the plaintiff was decreed. In appeal by the Union of India the court, while endorsing the finding of the trial court on other points, reversed the finding regarding illegality of the notice and dismissed the suit. The lower appellate court has held that subsequent to the decision reported in AIR 1972 S C 1487 : (1972 Lab I C 826) the Central Government has retrospectively amended the said rule and the action of the Union in the instant cape was, therefore, valid. The plaintiff, therefore, feeling aggrieved has filed the present appeal. 4. The lower appellate court has held that subsequent to the decision reported in AIR 1972 S C 1487 : (1972 Lab I C 826) the Central Government has retrospectively amended the said rule and the action of the Union in the instant cape was, therefore, valid. The plaintiff, therefore, feeling aggrieved has filed the present appeal. 4. In appeal before me the learned counsel has reagitated all the points on which the plaintiff had relied upon in the plaint. As regards the services of the plaintiff are concerned the same were admittedly never made quasi-permanent and the plaintiff, therefore, continued to be a temporary employee of the Industrial Sugar Institute, Kanpur. He would, therefore, be governed by the Civil Services (Temporary Service) Rules, 1965. The plaintiff was served with a notice on 1-2-67 by which he was informed that the post had been abolished with effect from 1-3-67 and, therefore, he was removed from service with immediate effect and he was asked to receive one month's salary and dues from the defendant. Rule 5 (;) initially stood as under: "Provided that the services of any such Government servant may be terminated forthwith by payment to him of the sum equivalent to the amount of his pay plus allowances for the period of the notice at the same time at the rate at which he was drawing then immediately before the termination of the service, or, as the case may be, for the period by which such notice falls short of one month." 5. When this rule was amended by the President of India vide Notification No. 4/2/72-Estt. (C) dated 23-6-72 issued by the Department of Personnel New Delhi it read as under : "Provided that the service of any such Government servant may be terminated forthwith and on such termination, the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowance for the period of the notice at the same rates at which he was drawing then immediately before the termination of his service, or, as the case may be, for the period by which such notice falls short of one month." 6. By the notification with which the amendment was brought it was specifically provided that the same would be applicable retrospectively with the result that Rule 5 (1) will be deemed to have been effective as from 1965 when the original rules were made applicable. On the date when the order of removal was issued therefore by fiction of law it will be deemed that the original rule had a proviso which was in terms of the present amended proviso. Having regard to the alleged amended proviso it is quite clear that even if no money was offered to the plaintiff at the time when the notice of termination was served on him it would not be necessary for the Government to make payment of the amount at the very time. The amended proviso merely entitles the employee whose services have been terminated to claim one month's salary and other allowances from the Government. In view of this, therefore, the decision of the court below was correct in upholding the validity of the termination order dated 1-2- 67. When the proviso has been amended with retrospective effect the only effect of the same could be that right from the beginning the amended proviso would be deemed to have been substituted in place of the earlier proviso. In this view of the matter I am of the opinion that the findings recorded by the lower appellate court on this point were fully justified and were legally sound. 7. It has been next contended by the learned counsel for the appellant that the action of Sri S. C. Gupta in issuing the termination order was mala fide and there was no justification for the same. There are concurrent findings by the two courts below that Sri S. C. Gupta was not actuated by any malice or ill intention against the plaintiff in issuing the letter. They have also come to a .concurrent finding that the direction for abolition of the post of Garden Supervisor or another post had been issued by the Government and not by the Director. In the circumstances, this Court will not interfere with those findings of fact and give a different finding. In this connection it was also) submitted that the abolition of 'post was so manipulated that the plaintiff may be turned out from service somehow. In the circumstances, this Court will not interfere with those findings of fact and give a different finding. In this connection it was also) submitted that the abolition of 'post was so manipulated that the plaintiff may be turned out from service somehow. The learned counsel has submitted that no post was in fact abolished and on the same date i.e. 1-2-67 a meeting of the Departmental Promotion Committee (DPC) was held of which Sri S. C. Gupta was also a member in which Iqbal Bahadur Dwivedi was made 'senior to the plaintiff and on this basis, being the junior most employee, he was removed from service on account of abolition of the post. In this connection it is important to note that the Director had requested the Government to sanction a post of Accounts Officer. However, by its letter Ex. A-13 on the record the Government did not agree to the suggestion and informed the Director that if he was prepared to surrender the post of the Garden Supervisor and also of the junior field-man-cum-store-keeper then only the post of accountant will be sanctioned. This letter is dated 9-1-67, However, the meeting of D. P. C. was held on 31-12-66 in which the Director Sri Gupta, Assistant Director N. C. Verma and Senior Administrative Officer Sri S. K. Nigam were members. In this meeting the question of making the services of the plaintiff as quasi-permanent came up for consideration but the matter was postponed. The seniority was also determined in the said meeting and after consideration of the character rolls of both plaintiff and Iqbal Bahadur Dwivedi it was considered that the character roll of Sri Iqbal Bahadur Dwivedi was better than that of the plaintiff and on consideration of character roll he was made senior to the defendant. By that time Government letter Ex. A-13 dated 9-1-67 had not been received in the Institute and, therefore, there was no question of there being any ill intention of malice in fixing the seniority of the plaintiff and Sri Iqbal Bahadur with any ulterior motive. It was only when the letter had been received the question of abolition of the post arose and since the plaintiff was the junior-most he was issued the termination order on 1-2-67. It was only when the letter had been received the question of abolition of the post arose and since the plaintiff was the junior-most he was issued the termination order on 1-2-67. I do not think that on this basis it could legitimately be argued that proceedings of the D. P. C. had been mala fide in any manner or the fixation of seniority of Sri Iqbal Bahadur visa-vis the plaintiff was in any manner connected with the later events. 8. The learned counsel for the appellant next argued that even if retrenchment was to be made it must be made only in accordance with the provisions contained in the Industrial Disputes Act. Since the retrenchment process has not been gone into in accordance with what is laid down in Sections 25-F and 25-G of the Industrial Disputes Act therefore also the order of removal was illegal. The learned counsel with great pains and with reference to the evidence on the record and pleadings of the parties argued that the National Sugar Institute was an Industry and as such the question relating to the relationship of employer and,.employee would be governed by the provisions o(Industrial Disputes Act. Under Section 2 (j) the word "Industry" as used in Industrial Disputes Act, 1947 has been defined as under : " "Industry" means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen." 9. These words which define the word "Industry" have been the subject matter to lot of controversy from the very inception. But the matter has now been concluded by a decision of the Supreme Court in which the entire case law on the point has been reviewed in AIR 1978 S C 548: (1978 Lab I C 467) - Bangalore Water Supply v. A. Rajappa. It has been laid down that the word "industry" has a wide import where there is (i) systematic activity, (ii) organised by co-operation between employer and employee, (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (excluding spiritual and religious industry) prima facie there is an industry in that enterprise. 10. It is also laid down that absence of profit motive or gainful objective is irrelevant be the venture in the public, joint, private or other sector. 11. 10. It is also laid down that absence of profit motive or gainful objective is irrelevant be the venture in the public, joint, private or other sector. 11. The true focus is functional and the decisive test in the nature of the activity with special emphasis on the employer-employee relations. 12. The Supreme Court went on to hold that on applying these guidelines even, (i) professions, (ii) Clubs, (iii) Educational Institutions, Co-operatives, (iv) Research Institutes (v) Charitable projects and (vi) other kindted adventures, if they fulfil the triple tests listed above cannot be exempted from the scope of S. 2 (j). 13. Where a complex of activities, some of which qualify for exemption, others not, involve employees on the total undertaking some of whom are not "workmen" or some departments are not productive of goods and services if isolated, even then the predominant nature of the services and integrated nature of the departments will be true test. The whole undertaking will be "Industry" although those who are not "workmen" by definition may not benefit by the status. Applying this criteria to the facts of the instant case we find that-the National Sugar Institute is predominantly a research Institute and its objective is to devise ways and means of economising in sugar production and also to design machines and machine parts so as to make the working of the sugar mills more efficient. It also helps the industry in solving their specific problems and to advise the industry in various other ways to make the whole industry more effective and viable. The defendant has admitted in its written statement that the Institute charges for advice to the Industries and also undertakes other jobs of research on payment by the Industries. It is indeed an organised and systematic enterprise but to my mind it does not qualify to the various requirements which can make an enterprise an industry. It is purely a technical institute which provides the industry with its know-how and skill and gives advantage of its research to the industry, of course, on payment but not on profit. Under these circumstances, I find myself unable to agree with the submissions made by the appellant that the research institute was an industry. 14. It is purely a technical institute which provides the industry with its know-how and skill and gives advantage of its research to the industry, of course, on payment but not on profit. Under these circumstances, I find myself unable to agree with the submissions made by the appellant that the research institute was an industry. 14. In any case even assuming that the Institute was an industry yet the question arises as to whether the provisions of Sections 25-F and 25-G can be made applicable in the case of the plaintiff. According to the definition of workman given in S. 2 (s) of the Industrial Disputes Act it is quite obvious that the plaintiff would fall within that definition and, therefore, he could raise any of the questions which he has raised in the instant suit under the provisions of the Industrial Disputes Act, 1947. Industrial Disputes Act is a special Act which deals with special type of cases which also provides for the remedies connected therewith. A dispute between the employer and the employee can be referred to the Conciliation Officer or before Members of the Labour Court or the Industrial Tribunal who will also look into the grievances of the plaintiff. There is also 'a provision that after a decision is given under the provisions of the Act the same can be enforced like a decree of the Court. 15. The question, however, arises whether the principles contained under the Industrial Disputes Act take away the jurisdiction of the civil court to entertain a suit of the nature filed by the plaintiff appellant. It was contended by Sri N. P. Singh, learned counsel for the appellant that in the Act there was no provision which specifically takes away the jurisdiction of the civil court. Under S. 9 C P C a suit of civil nature is cognisable by civil courts unless such suit whose cognizance has been either expressly or impliedly barred. It is correct that there is no provision in the Industrial Disputes Act which may specifically take away the jurisdiction of the civil court in matters covered by Industrial Disputes Act. Under S. 9 C P C a suit of civil nature is cognisable by civil courts unless such suit whose cognizance has been either expressly or impliedly barred. It is correct that there is no provision in the Industrial Disputes Act which may specifically take away the jurisdiction of the civil court in matters covered by Industrial Disputes Act. However, it is well known that where a Tribunal or Statutory Authority has been given the powers to pass certain orders and exercise certain powers provided certain preliminary facts exist, it is obvious that such Tribunal or Statutory Authority alone has the power to determine the controversy. In Sriniwasa v. State of Andhra Pradesh (AIR 1971 S C 71) the Supreme Court had occasion to consider this aspect and relying on one of its earlier decisions in AIR 1969 S C 78 the Supreme Court observed thus : "The exclusion of the jurisdiction of the civil courts must either be explicitly expressed or clearly implied. Further, even if the jurisdiction is so excluded the civil courts have jurisdiction to examine into the cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principle of judicial procedure." 16-17. This matter again came up for consideration by the Supreme Court and after thorough investigation of the various decisions on this point and after discussing a plethora of case laws on the point in the case of Premier Automobiles Ltd. v. Kamlakar Shantaram (AIR 1975 S C 2238) laid down the following rules in this regard : It said the principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute may be stated thus : (1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the Civil Court. (2) If the dispute is an industrial dispute, arising out of a right or liability under the general common law and not under the Act, the jurisdiction of the civil court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy. (2) If the dispute is an industrial dispute, arising out of a right or liability under the general common law and not under the Act, the jurisdiction of the civil court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy. (3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act. (4) If the right which is sought to be enforced is a right created under the Act such as Chapter V-A then the remedy for its enforcement is either S. 33 C or the raising of an industrial dispute, as the case may be. There will hardly be a dispute which will be an industrial dispute within the meaning of S. 2 (k) of the Act and yet will be one arising out of a right or liability under the general rule or common law only and not under the Act. Such a contingency, for example, may arise in regard to the dismissal of an un sponsored workmen which in view of the provisions of law contained in S. 2 A of the Act will be an industrial dispute even though it may otherwise be an individual dispute. Civil Courts, therefore, will have hardly an occasion to deal with the type of cases falling under principle 2. Cases of industrial disputes by and large, almost invariably, are bound to be covered by principle 3 stated above." 18. Applying these principles to the facts of the present case, we find that if the National Sugar Institute. Kanpur, be assumed to be an "Industry" and the plaintiff a "workman" in dispute arising between them to which effort is made to apply the provision of Sections 25 G and 25 F of the U. P. Industrial Disputes Act and would be covered by the provisions of that Act. Even if the case of the plaintiff is found to fall in category 2 as detailed in the aforesaid decision of the Supreme Court then also the choice lay initially with the plaintiff either to come to the civil court or to seek remedy under the provisions of the Industrial Disputes Act. Even if the case of the plaintiff is found to fall in category 2 as detailed in the aforesaid decision of the Supreme Court then also the choice lay initially with the plaintiff either to come to the civil court or to seek remedy under the provisions of the Industrial Disputes Act. The plaintiff having chosen to come to the civil court cannot now claim that although it was a civil remedy which he was seeking, yet the provisions of Industrial Disputes Act should be applied in his case in order to find out whether his rights have been adversely affected or not. The rights which have been given to a workman under Sections 25 G and 25 F under the Industrial Disputes Act are rights which are granted under that Act, and unless and until proceedings also take place under the provisions of that Act those rights cannot he claimed by the plaintiff. In the instant case. the plaintiff is, therefore, not entitled to base his rights under S. 25F or 25G of the U. P. Industrial Disputes Act and claim in the civil court that those rights should be enforced in this Court. 19. I am, therefore, clear in my mind that although the National Sugar Institute is not an industry, yet even if it were so, the remedy for the plaintiff was to have sought relief under the Industrial Disputes Act rather than coming to the civil court which had limited jurisdiction, if at all, in the matter. Even if the plaintiff may be held entitled to file a civil suit for redress he cannot be allowed to call in his aid the provisions of U. P. Industrial Dispute of Act. His remedy in the civil court can be based only on the contract of service or Rules governing the terms of Service and if the same had been duly complied with, the plaintiff has only to be non-suited. It is, therefore, absolutely incorrect for the appellant to submit that the suit was (sic) barred under S. 25F or S. 25G of the said Act. 20. I cannot part with this case without observing that in spite of the notice having been given no one appeared for the Union of India to defend the appeal. It is, therefore, absolutely incorrect for the appellant to submit that the suit was (sic) barred under S. 25F or S. 25G of the said Act. 20. I cannot part with this case without observing that in spite of the notice having been given no one appeared for the Union of India to defend the appeal. Effort was made for sending message to the counsel for the Union of India but still no one cared to turn up in order to defend the appeal. Sri P. N. Singh, however, was very helpful in bringing all the facts to the notice of the Court and he did so very candidly. 21. Having considered all that has been argued before me I am of the opinion that the order of the court below does not suffer from any illegality or infirmity of any kind and the appeal has, therefore, no force. 22. The appeal is, therefore, dismissed. In the circumstances of the case, I do not make any orders as to costs.