Devi Charan Srivastava v. M/s. , Elgin Mills Co. Ltd. , Kanpur — 1981 DIGILAW 825 (ALL)

JUDGMENT K.M. Dayal, J. - The present second Appeal has been filed by the plaintiff. The plaintiff was an employee in the Elgin Mills Co. Ltd. Kanpur as a confirmed clerk. He was served with charge-sheet on 15-12-70 wherein several charges were levelled against him. It was further mentioned in the charge-sheet that in case the plaintiff was found guilty, his services may be terminated on those charges. The plaintiff submitted his explanation and denied the charges. By a letter dated 6th Jan. 1971 the plaintiff was informed that his explanation was found unsatisfactory and an inquiry would be held in the charges levelled against him. Subsequently the inquiry was held the plaintiff was given an opportunity to file his written statement and put in his defence. A report was submitted by the Inquiry Officer on 22nd Feb., 1971. The Inquiry Officer further recommended that the plaintiff was not a fit person to be retained in the service of the Company. On this report the plaintiffs services were terminated by order dated 23-2-71. Thereafter the plaintiff instituted the suit out of which the present Second Appeal arises. The suit was filed making several allegations of mala fide against the management and the main grievance appears to be that the charge-sheet contained the proposed punishment as well and, therefore, the defendant had made up his mind to the termination of the service of the plaintiff after a perfunctory inquiry. 2. The suit was decreed by the trial court and the plaintiff was granted a declaration that the termination of service was illegal, ultra vires and the plaintiff continued to be in service of the institution. An injunction was also granted in his favour ordering the defendant not to give effect of the termination order. The defence that the inquiry was fair and in accordance with the standing order was repelled. The other defence about the jurisdiction of the civil Court to try the issue was also repelled. 3. The Company went up in appeal. The appellate court held that the injunction of the civil court was barred in view of the provisions of U. P. Industrial Disputes Act. It further held that there was no mala fide and mere mentioning of the proposed punishment in the charge-sheet did not cause any prejudice to the plaintiff nor it affected the case of the defendant in any adverse manner. It further held that there was no mala fide and mere mentioning of the proposed punishment in the charge-sheet did not cause any prejudice to the plaintiff nor it affected the case of the defendant in any adverse manner. The appeal was allowed and the suit of the plaintiff was dismissed. 4. The present appeal has been filed by the plaintiff against the order of the lower appellate court mentioned above. 5. Learned counsel for the appellant argued that the civil court had jurisdiction to go into the matter and the decision of the lower appellate court that the civil court had no jurisdiction to entertain the suit was not correct. The second question raised by the learned counsel relates to the fact that the order of the defendant terminating services of the plaintiff was mala fide and it prejudiced the action that was to be taken against the plaintiff and the inquiry was perfunctory. So far as the question of mala fide and the inquiry being of perfunctory nature is concerned, the finding of the lower appellate court is a finding of fact that the inquiry was not of perfunctory nature. The plaintiff was given appropriate opportunity to defend his case before the Inquiry Officer and there was no mala fide against him. However, so far as the other two questions are concerned, it will be necessary to go into the discussion. The lower appellate court has relied upon two facts. Firstly that on 23-2-73 when the plaintiffs services were terminated, the individual dispute was not an industrial dispute. Under the U. P. Industrial Disputes Act, the individual disputes were not included within the definition of industrial dispute in cl. (1) of S. 2. So far as the U. P. Industrial Disputes Act is concerned, if that Act alone would be applicable, the contention of the plaintiff-applicant would have been accepted without any difficulty. The U. P. Industrial Disputes Act was amended by U. P. Act 34 of 1978 by adding S. 2A wherein an "individual dispute" was also included in the industrial dispute. In 1971, when the dispute arose, the plaintiffs case was not covered by the provisions of U. P. Industrial Disputes Act, 1947. 6. Learned counsel for the respondent, however, relied upon insertion of a similar S. 2A in the Industrial Disputes Act, 1947 (Central). In 1971, when the dispute arose, the plaintiffs case was not covered by the provisions of U. P. Industrial Disputes Act, 1947. 6. Learned counsel for the respondent, however, relied upon insertion of a similar S. 2A in the Industrial Disputes Act, 1947 (Central). That amendment was made in the Central Act by Act No. 25 of 1965 and the amendment came into force from 1st Dec. 1965. Learned counsel for the respondent argued that as the provisions of the two Acts Central and State overlapped and S. 12 of the U. P. Act empowered the State Government to make reference under the Central Act as well, a reference to the Labour Court could have been made under S. 12 read with S. 10 (1) of the Industrial Disputes Act, 1947 (Central). Learned counsel argued that if such reference could be made, there was nothing to prevent the State Government from making reference though S. 2A was as such not incorporated in the State Act. Learned counsel on that anology relied upon the case of Wheeler Distributor (P.) Ltd. v. State, reported in 1974 Lab I C 1044 (All). The matter was also examined by the Full Bench of our Court in Vishnu Das v. State of U. P. (1974 Lab I C 1287). In this case it was held that the State Government could refer an industrial dispute between the workmen and employer in view of S. 12 of the U. P. Industrial Disputes Act read with S. 2A of the Central Act. Learned counsel for the respondent relied upon the case of the Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke, ( AIR 1975 SC 2238 ). That is a leading case on the question of jurisdiction of civil court pertaining to Industrial Tribunal or Labour Court. The matter was analysed by the Supreme Court in great detail and four classes of cases were sorted out. In class (2) the following cases are grouped : "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." Further discussion finds place in paras 24 to 26 of the report. The gist of these paras and the case as a whole goes to show that the civil court had jurisdiction in the matters for which there was no specific provision in the Industrial Disputes Act. A reference may be made to the provisions contained in Sections 4I, 5B, 6,6A,6B, 6E, 6F, 6H, 6K, 6M, 6N, 60 and so on. If any action is required to be taken under that provision which was specifically provided by the Industrial Disputes Act, the action must be taken under the provisions of that Act. In case where the civil rights of the parties are affected and for which there is no specific provision in the Industrial Disputes Act or other special enactment, the remedy of suit cannot be held to be completely barred. It is true that in case the remedy through the machinery of Industrial Disputes Act or other similar enactment may be available as being covered "by the provisions thereof but in such cases, in absence of specific provisions, the jurisdiction of the civil court cannot be said to be barred and the civil court will continue to have jurisdiction under S. 9, C. P. C. The Supreme Court in the case of Premier Automobiles Ltd. (1975 Lab I C 1651 at p. 1664) (supra) has held as under :- "We may, however, in to principle 2 stated above hasten to add that 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 or common law only and not under the Act. Such a contingency, for example, may arise in regard to the dismissal of an unsponsored workman which in view of the provisions of law continued in S. 2A 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. Some of the decisions of the High Courts in India cited at the Bar may now be briefly noticed. They fall in one category or the other and have expressed divergent views. Cases of industrial disputes by and large almost invariably are bound to be covered by principle 3 stated above. Some of the decisions of the High Courts in India cited at the Bar may now be briefly noticed. They fall in one category or the other and have expressed divergent views. Those which have taken any view contrary to the one expressed by us above must be deemed to have been overruled in that regard and those falling in line with our views are being affirmed. In the case of Krishnan v. East India, Distilleries and Sugar Factories Ltd. Nellikuppam (1964) 1 Lab L J 217: ( AIR 1964 Mad 81 ), the learned single Judge of the Madras High Court has held that the jurisdiction of the civil court is ousted impliedly to try a case which could form subject matter of an industrial dispute collectively between the workmen and their employer. One of us (Alagiriswami, J.) as a Judge of the Madras High Court in the case of Madura Mills Co. Ltd. v. Guruvammal, (1967) 2 Lab L J 397 (Mad) has pointed out that the Act creates a special machinery under S. 33C (2) to enforce specially created rights. The parties could not, therefore, approach the ordinary civil court. We affirm the aforesaid two decisions of the Madras High Court. A single Judge of the Mysore High Court took the same view in the case of Nippani Electricity Company (Pvt.) Ltd. v. Bhimarao Laxman Patil, (1969) 1 Lab L J 268 : (1968 Lab I C 1571) (Mys) and a Bench of the Bombay High Court in the Pigment Lakes and Chemical Mfg. Co. (P.) Ltd. v. Sitaram Kashiram Konde, 71 Bom LR 452 : (1970 Lab I C 115) held that the jurisdiction of the civil court to deal with matters mentioned in Chapter VA read with Schedules 2 to 4 to the Act is impliedly barred. Similar opinion was expressed by a learned single Judge of the Kerala High Court in the case of Nanoo Asan Madhavan v. State of Kerala, (1970) 1 Lab L J 272 (Ker). A learned single Judge of the Calcutta High Court seems to have taken a somewhat different view in the case of Bidyut Kumar Chatterjee v. Commissioners for the Port of Calcutta (1970) 2 Lab L J 148 : (1970 Lab I C 708) (Cal). A learned single Judge of the Calcutta High Court seems to have taken a somewhat different view in the case of Bidyut Kumar Chatterjee v. Commissioners for the Port of Calcutta (1970) 2 Lab L J 148 : (1970 Lab I C 708) (Cal). The ratio of the case in so far as it goes against the principles enunciated by us is not correct. We approve what has been said by a Bench of the Calcutta High Court in the case of M/s. Austin Distributors Pvt. Ltd. v. Nil Kumar Das, 1970 Lab I C 323 (Cal) that a suit for recovery of damages for wrongful dismissal on the grounds which are clearly entertainable in civil court, would lie in that court even though a special remedy is provided in the Act in respect of that matter. This would be so on the footing that the dismissal was in violation of the contract of service recognised under the general law. More or less to the same effect is the view taken by a learned single Judge of the Mysore High Court in the case of Syndicate Bank v. Vincent Robert Lobo. (1971) 2 Lab L J 46 : (1971 Lab I C 1055) (Mys). It is not necessary to refer to some unreported decisions of the Bombay High Court taking one view or the other." 7. The instant suit was a suit for declaration that the termination of the plaintiffs service was wrongful, illegal, ultra vires and not binding on the plaintiff. In view of the observation of the Supreme Court in para 26 of Premier Automobiles Ltd. (1975 Lab I C 1651) (supra), the suit cannot be held to be barred. Thus I hold that the present suit was not barred by the provisions of the U. P. Industrial Disputes Act. The civil court had full jurisdiction to determine the matter before it. 8. Last question that remains to be decided in the instant case is whether the mention of the proposed punishment in the charge-sheet vitiates the charge-sheet and subsequent inquiry. Learned counsel for the appellant argued that mention of the proposed punishment was made as the employers had already made up their mind to punish the plaintiff. I am not prepared to accept this version. Learned counsel for the appellant argued that mention of the proposed punishment was made as the employers had already made up their mind to punish the plaintiff. I am not prepared to accept this version. If the employer issues a charge-sheet and also mentions that on the employee's being found guilty, he may be punished in a particular manner, that will not mean that the employer intended to punish the employee in spite of the result of the inquriy. Further, in my opinion, in such a case an employee has an advantage as he could know seriousness of the charges against him and take proper defence. Learned counsel for the respondent has relied upon a case reported in AIR 1971 Cal 336 (B. Bhimrajee v. Union of India). In that case in the memo of charges the proposed punishment which could be inflicted on the plaintiff was also indicated. The charge-sheet mentions: "To show cause why he should not be punished with the penalty specified in item No. 9 of the list (dismissal from service) or that any of the lesser penalties of the list on the charge set out therein." It was held by the Calcutta High Court that it was not possible to contend that asking a delinquent to show cause against the penalty to be imposed on him does by itself mean that his case has been prejudged. Learned counsel also relied upon another case reported in (1972 All LJ 515) : ( AIR 1973 All 1 ) (FB), T. P. Tripathi v. Board of High School and Intermediate Education. The petitioner in that case was issued a notice to show cause why his examination be not cancelled and action against him be not taken under certain provisions of the Board's Calendar. The petitioner submitted his explanation and further said that he had nothing to add to his explanation. It was held in para 21 of the report that by indicating the proposed punishment in the charge-sheet the petitioner was given ample opportunity to explain the allegations made against him and show cause against the punishment which could be meted out to him under the provisions of the Board's calendar. 9. It was held in para 21 of the report that by indicating the proposed punishment in the charge-sheet the petitioner was given ample opportunity to explain the allegations made against him and show cause against the punishment which could be meted out to him under the provisions of the Board's calendar. 9. In the result, I am not in a position to agree with the learned counsel for the appellant that by mere mentioning of the proposed punishment in the charge-sheet the plaintiff was put to any prejudice or that indicated the decision of the employers to do away with the services of the plaintiff. In view of my finding on the question of the prejudice to the plaintiff and finding of fact recorded by the court below on the question of mala fide and violation of rules of natural justice, the appellant is not entitled to any relief. 10. In the result, the present appeal fails and is dismissed. There will, however, be no order as to costs.