V. A. Damodaran v. E. L. D. Parry (India) Ltd. — 1990 DIGILAW 494 (MAD)

Judgment :- The plaintiff, who failed before both the courts below, is the appellant second appeal. In this second appeal, the parties are referred to by their nomenclature in the suit. 2. The plaintiff filed the suit O.S.No.242 of 1977 on the file of the District Munsif, Ranipet, a declaration that the date of birth of the plaintiff is 7.12.1930, that he is entitled to in service till 7.12.1988 and for a permanent injunction restraining the defendant from way interfering with the plaintiff service. 3. The case of the plaintiff is as follows: The plaintiff entered the service in 1952. His birth is 7.12.1930. As per the Rules of the defendant company, the age of retirement superannuation is 58 years and the plaintiff is entitled to remain in service till 7.12.1988. defendant did not enter the age of the employees in the registers. The defendant resolved modify the age of superannuation of its employees and notice was published asking employees to declare the age of the employees. The plaintiff gave a petition to the defendant in person intimating that his date of birth was 7.12.1930 and that his age had corrected. The defendant suddenly served a notice dated 14.12.1977 on the intimating him that he would be retiring from 31.12.1977. The said notice dated 14.12.1977 is illegal and there is no basis for the respondent to conclude that the plaintiff has the age of 58 years on 31.12.1977. 4. The defendant resisted the suit contending as follows: The Standing Orders defendant-company governs and controls all the employees in labour category including plaintiff. The Standing Orders are framed and certified under the Industrial Employment (Standing Orders) Act, 1946. As per the Standing Order 16(i) of the defendant company, service of the worker will ordinarily be terminated on his attaining the age of 55 completing 30 years of service. By the authority of the Board of Directors of the defendant company the retirement age of the employees was raised to 58 years. The information was published on its notice board on 15.12.1966. In 1960 a dispute arose the age of retirement of three workers. Before the Conciliation Officer, Vellore, conciliation proceedings started regarding the determination of the age. A final settlement was arrived between the partie; and the said settlement is binding on the management and the of the defendant-company under Sec. 12(3) of the Industrial Disputes Act. In 1960 a dispute arose the age of retirement of three workers. Before the Conciliation Officer, Vellore, conciliation proceedings started regarding the determination of the age. A final settlement was arrived between the partie; and the said settlement is binding on the management and the of the defendant-company under Sec. 12(3) of the Industrial Disputes Act. As per the said settlement, the defendant-company will publish notice giving the age employees and any employee who disputes the accuracy regarding his age will documentary evidence within thirty days after the publication of such notice and he prove his correct age. If no such evidence is adduced within 30 days, no permanent employee, who raised the dispute of his age but had not produced any such document the stipulated period, can afterwards raise such dispute and those who raised the within the stipulated period but failed to prove the same is barred from raising any regarding the age and those did not make any objection for the age within the stipulated time, cannot raise it later. In accordance with the abovesaid permanent settlement at under Sec.12(3) of the Industrial Disputes Act, the defendant-company published of its workers on 2.10.1961 and it was also served on the Labour Union and put up notice board of the company of its various Departments. A list of the factory workers was sent to the Labour Union, Ranipet on 2.9.1961. The age of the plaintiff was published 42 as on 1.1.1961. So, the date of birth of the plaintiff, according to the defendant, 1.1.1919. The plains tiff never gave any representation disputing his age. On 14.12.1977 defendant sent a letter to the plaintiff stating that as the defendant has attained the superannuation he will be retired from service at the close of the business on Saturday, 31st December, 1977-. Further, the defendant had raised a labour dispute under Sec2(a) the Industrial Disputes Act before the Labour -Officer, Vellore on 15.7.1977.The determination of the age of the worker is governed by the provisions of the said Act. orders passed by the employer under the Standing Orders are all within the purview Industrial Disputes Act and would come under the jurisdiction of the Labour Court such the Civil Court had no jurisdiction to try the suit. 5. orders passed by the employer under the Standing Orders are all within the purview Industrial Disputes Act and would come under the jurisdiction of the Labour Court such the Civil Court had no jurisdiction to try the suit. 5. The trial Court framed as many as twelve issues in the suit and issue No.8 framed suit runs as follows: “ Whether this Court has got jurisdiction to entertain the plaintiff ’ s case? ” The trial court after trial, on issue No.8, held that the remedy of the appellate court to Labour Court and that the civil court has no jurisdiction to try the suit. In view finding on issue No.8, the trial court held that it is not necessary to consider the other framed in the suit. The trial court holding that the suit filed before a civil court maintainable and dismissed the suit. As against the judgment of the trial court the filed an appeal A.S.No.293 of 1978 before the District Court, Vellore. The learned Judge confirmed the judgment of the trial Court and dismissed the appeal. Aggrieved judgment of the Courts below, the plaintiff has filed the present second appeal. 6. Mr.M.Kalyanasundaram, learned counsel for the appellant would contend that filed by the plaintiff before the civil court is maintainable and in support of his contention relied on the second Principle laid down by the Supreme Court in para 23 of the decision Premier Automobiles Ltd. v. K.S.Wadke, (1975)2 L.L.J. 445 . On the other Mr.N.Balasubramanian, learned counsel for the defendant contended that the schedule to the Industrial Disputes Act, 1947, hereinafter referred to as the Act enumerates the matters which are within the jurisdiction of the Labour Courts constituted under the Act. The first item of the second schedule to the Act covers “the propriety or legality an order passed by the employer under the Standing Orders”. The first item of the second schedule to the Act covers “the propriety or legality an order passed by the employer under the Standing Orders”. According to learned for the defendant, Clause 16(1) of the certified Standing Orders of the defendant marked as Ex.B14 in this case provided that the service of the worker of the defendant be ordinarily terminated on his attaining the age of superannuation viz., 58 years and basis of Clause 16(1) of the Certified Standing Orders an order was issued by the defendant to the plaintiff under Ex.A2 informing the plaintiff as follows: “As you have attained the Age of super annuation you will be retired from service close of business in Saturday, the 31st December, 1977”, Learned counsel for the defendant contended that if the order under Ex.A2 is challenged, it has to be challenged under the provisions of the Act and the civil court jurisdiction to entertain the suit. In support of, his contention, learned counsel defendant relied on the decision reported in Bank of Baroda v. T.J.Mishra, (1988)1 L.L.N. 776. In the first place we examine the exact reliefs claimed by the plaintiff in the suit. Though admittedly the are couched in a most innocuous language, still we have to find out the substance relief claimed. The letter issued by the defendant to the plaintiff under Ex.A.2 has given to the whole controversy. The operative portion of the letter is extracted above. the plaint runs as follows: "The plaintiff submits his date of birth is 7.12.1930. As per the company rules the retirement and superannuation is 58 years. The employees are entitled to remain in till they attain the age of 58 years. The plaintiff as per the company’s rules is entitled remain in service till 7.12.1988. But the defendant company has arbitrarily issued a the plaintiff intimating that the plaintiff has attained the age of retirement on 31.12.77 that he will be retired from service with effect from 31.12.77. The notice by the ordering the retirement has no basis and is illegal". In para 9 of the plaint the plaintiff has stated that one of the causes of action for arose on 14.12.1977 when the defendant issued a notice ordering the retirement plaintiff. The notice by the ordering the retirement has no basis and is illegal". In para 9 of the plaint the plaintiff has stated that one of the causes of action for arose on 14.12.1977 when the defendant issued a notice ordering the retirement plaintiff. The main objection of the plaintiff in the suit is that his date of birth is and as such under the Standing Orders which have the force of statute, he cannot be before the completion of 58 years and, therefore, the suit has been instituted. Thus plaintiff wants to contend is, that under the Standing Orders the superannuation been fixed at 58 years and as such the letter under Ex.A.2 is bad in law. Though in prayer in the suit is for declaring the age of the plaintiff as 7.12.1930 and that he is to continue in service till 7.12.1988 and for granting a permanent injunction restraining defendant from in any way interfering with the plaintiff ’ s service by way of retirement, in effect the plaintiff has agitated that the action of the defendant in retiring the plaintiff service with effect from 31.12.1977 is invalid as it is in contravention of the Standing Thus, the relief of declaration that is claimed is not only regarding the declaration of but it is regarding the contravention of the Standing Orders,. 7. The question, whether a specific industrial dispute bars the jurisdiction of the civil has been considered by the Supreme Court in Premier Automobiles Ltd. v. K.S.Wadke, (1975)2.L..L.J.445. The principles are laid down by the Supreme Court in para.23 following words: "To sum up, the principles applicable to the jurisdiction of the Civil Court in relation industrial dispute may be stated thus: (1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any 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, to the election of the suit or 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, to the election of the suit or 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 under the Act, then the only remedy available to the suit or is to get an adjudication the Act. (4) If the right which is sought to be enforced is a right created under the Act Chapter VA then the remedy for its enforcement is either Sec.33C or the raising industrial dispute, as the case may be" 8. It is admitted case of both the parties that the present case does not fall within category nor does it fall within the fourth category. Learned counsel for the contended that the case the plaintiff would fall under category No.2 whereas learned for the defendant contended that the present case would fall under third category referred above. Mr.Kalyanasundaram, learned counsel for the appellant strenuously contended what the plaintiff was contending in the suit is that the date of birth of the 7.12.1930 and not 31.12.1919. It was his contention that on the wrong assumption date of birth is 31.12.1919 the defendant has issued a letter under Ex.A.2 retiring the service with effect from 31.12.1977. Thus, according what the civil court is called do is to find out the correct date of birth of the plaintiff i.e., whether 7.12.1930 or 31.12.1919. It was urged by counsel that this dispute falls under the common law and not under the special statute as such the controversy would fall within the second principle laid down by the Supreme Court in the decision referred to above. It must be remembered that the right to remain service upto the completion of 58 years of age is not a right under common law. This specifically confirmed by the Standing Orders. Thus, the declaration which is being in substance in this suit is not merely a declaration that the date of birth of the plaintiff 7.12.1930, but, the declaration which is claimed in substance is to the effect that born on 7.12.1930 and because of the Standing Orders he cannot be superannuated the expiry of 58 years. Thus, the declaration which is being in substance in this suit is not merely a declaration that the date of birth of the plaintiff 7.12.1930, but, the declaration which is claimed in substance is to the effect that born on 7.12.1930 and because of the Standing Orders he cannot be superannuated the expiry of 58 years. It is the action of superannuating the plaintiff-before the completion of 58 years that has been challenged and it is this act of the defendant which is challenged before the Civil Court on the ground that it is contrary to the Standing Orders, therefore, contention of learned counsel for the plaintiff that the right which the plaintiff is claiming the suit is a right under common law cannot be countenanced. What has been claimed right which has accrued to the plaintiff under the Standing Orders and not a right which accrued to the plaintiff under common law and as such, this case would not be covered the principle No.2 laid down by the Supreme Court in the decision referred to above other words, the right which the plaintiff is pressing before the Court is not a right under common law. What the plaintiff has sought before the trial court in substance is that the Standing Orders he has a right to continue till the age of 58 years and the letter, served on him by the defendant calling upon him to retire on 31.12.1977 is illegal. His to continue in service till the expiry of 58 years of age is a right not under common law right under the special law. The obligation of the defendant not to oust the plaintiff before completes 58 years of age is not an obligation under common law but it is the obligation under the Standing Orders. It is this right which the plaintiff is enforcing in the Civil contending that his right is a right under the common law. This right, not being under common law but being an exclusive right flowing from the Standing Orders, cannot covered by the second principle laid down by the Supreme Court in the decision referred above. It is this right which the plaintiff is enforcing in the Civil contending that his right is a right under the common law. This right, not being under common law but being an exclusive right flowing from the Standing Orders, cannot covered by the second principle laid down by the Supreme Court in the decision referred above. In effect, the relief claimed by the plaintiff is regarding the legality of Ex.A2 passed by the defendant under the Standing Orders and as such it would be within exclusive jurisdiction of the Labour Court constituted under Sec.7 of the Act, and, therefore, the present case is covered by the third principle laid down by the Supreme Court in Automobiles Ltd. v. K.S. Wadke, (1975)2 L.L.J. 445 . As a matter of fact, the plaintiff labour dispute under Sec.2-A of the Act before the Labour Officer, Vellore, who Conciliation Officer and the latter has referred the matter to the defendant company Exs.B14 and B13 is the reply sent by the defendant-company to the Labour Officer notice issued under Ex.B12. 9. The above discussion obliges me to conclude that the civil court cannot legitimately jurisdiction to entertain and decide the suit in the present case because the relief claimed the suit is in substance regarding the legality of the action taken by the defendant Ex.A2. The courts below have rightly found the remedy available to the plaintiff remedy provided under the Act and that the civil court has no jurisdiction to entertain plaintiff’s case. There are no merits in the second appeal and the same is liable dismissed. Accordingly, the second appeal is dismissed, but, in the circumstances case, there will be no order as to costs. Appeal dismissed.