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1993 DIGILAW 340 (GUJ)

Gujarat State Road Transport Corporation v. Devabhai Parbatbhai

1993-07-27

A.N.DIVECHA

body1993
A. N. DIVECHA, J. ( 1 ) THE decision rendered by the learned Assistant Judge of Porbandar on 17th February 1986 in Regular Civil Appeal No. 47 of 1983 is under challenge in this second appeal at the instance of the original defendant under Sec. 100 of the Code of Civil procedure, 1908 (the Code for brief ). Thereby the learned Assistant Judge accepted the appeal and set aside the judgment and the decree passed by the learned Civil Judge (S. D.) at Porbandar on 29th October 1983 in Regular Civil Suit No. 87 of 1982. Thereby the learned Trial Judge dismissed the suit instituted by the respondent herein questioning the correctness of the order of dismissal passed against him by the present appellant. ( 2 ) THE appellant herein was the defendant in Regular Civil Suit No. 87 of 1982 and the respondent was the plaintiff. For the sake of convenience, I shall refer to the parties to this appeal as they were arraigned before the Trial Court, that is, the respondent as the plaintiff and the appellant as the defendant. ( 3 ) THE facts giving rise to this appeal are not many and not much in dispute. The plaintiff was in the employment of the respondent as a Driver attached to its Khambhadia depot. He was subjected to some departmental proceedings and on conclusion thereof he was served with the order of dismissal from service. He challenged it in the Court of the civil Judge (S. D.) at Porbandar by means of a suit. It came to be registered as Regular civil Suit No. 87 of 1982. The defendant filed its written statement at Exh. 10 on the record of the case and resisted the suit on various grounds. On the pleadings of the parties, the learned Trial Judge framed the necessary issues at Exh. 12 on the record of the case. After recording evidence and hearing the parties, by his decision rendered on 29th october, 1983 in Regular Civil Suit No. 87 of 1982, the learned Civil Judge (S. D.) at porbandar dismissed the plaintiffs suit The aggrieved plaintiff carried the matter in appeal before the District Court of Junagadh through the Assistant Judge at Porbandar. His appeal came to be registered as Regular Civil Appeal No. 47 of 1983. His appeal came to be registered as Regular Civil Appeal No. 47 of 1983. After hearing the parties, by his decision rendered on 17th February 1986 in Regular Civil Appeal No. 47 of 1983, the learned Assistant Judge of Porbandar accepted the appeal and set aside the judgment and the decree passed by the learned Trial Judge in Regular Civil Suit No. 87 of 1982 and decreed the plaintiffs suit. The aggrieved defendant has thereupon invoked the further appellate jurisdiction of this Court by means of this second appeal before this court under Sec. 100 of the Code for questioning the correctness of the aforesaid decision rendered by the lower appellate court. ( 4 ) ORDINARILY, this matter ought to have been decided on the basis of the Division bench ruling of this Court in the case of Chandrakant Tukaram Nikam vs. Municipal corporation of the City of Ahmedabad, reported in 1993 (1) 34 (1) Gujarat Law Reporter at page 684. Therein the Division Bench of this Court has held that the Civil Court has no jurisdiction to decide an industrial dispute. This Division Bench ruling of this Court has been pressed into service for deciding the fate of this appeal. It has been submitted that the plaintiff in the instant case was admittedly a workman and the controversy raised in the same would partake the nature of an industrial dispute and the Civil Court will have therefore no jurisdiction to try the suit. The aforesaid submission urged on behalf of the appellant before me was also the submission of various other advocates appearing on behalf of the employer as intervenors. ( 5 ) THE learned advocate appearing on behalf of the workman in this appeal and the learned advocate appearing as intervenors on behalf of the workman have however invited my attention to another Division Bench Ruling of this Court in the case of mohanlal Popatbhai Patel vs. The Gujarat State Road Transport Corporation and another reported in 1977 (1) Services Law Reporter at page 30. According to them, the division Bench of this Court in its aforesaid ruling in the case of Mohanlal Patel (supra) has held that the Civil Court has a power to grant the declaratory relief under the Specific relief Act, 1963 (the Act for brief) for enforcement of a contract of employment between the workman and a statutory body as the employer if it is found that the impugned order is in breach of rules of natural justice or in violation of any of the regulations or rules framed by such statutory body. It has been urged by the learned advocates appearing on behalf of the workman in this case and as intervenors that the aforesaid Division Bench ruling of this Court in the case of Mohanlal Patel (supra) is in conflict with the aforesaid Division Bench ruling of this Court in the case of Chandrakant nikam (supra ). It has also been urged that the aforesaid Division Bench ruling of this court in the case of Chandrakant Nikam (supra) has not referred to the aforesaid Division bench ruling of this Court in the case of Mohanlal Patel (supra ). In view of the aforesaid conflict between the aforesaid two Division Bench rulings of this Court, runs the submission of the learned advocates for the respondent and appearing as intervenors, the matter should be referred to a larger Bench for declaring the correct law on the subject. ( 6 ) AS against this, the learned advocates for the appellant and appearing as intervenors on behalf of the employer have submitted that there is no conflict between the aforesaid two Division Bench rulings of this Court, and as such no reference to a larger bench is called for. They have also urged that the binding ruling of the Supreme Court in the case of The Premier Automobiles Ltd. vs. Kamlakar Shantaram Wadke and others reported in AIR 1975 Supreme Court at page 2238 has not been considered by the division Bench ruling of, this Court in its ruling in the case of Mohanlal Patel (supra), and as such the Division Bench ruling of this Court will not hold the field in view of consideration of the ruling of the Supreme Court in the case of Premier Automobiles (supra) by the Division Bench ruling of this Court in the case of Chandrakant Nikam (supra ). It has also been urged by the learned advocates for the respondent and appearing as intervenors for the employer that a learned Single Judge of this Court is bound by the aforesaid Division Bench ruling of this Court later in point of time in the case of a conflict, if any, between the two Division Bench rulings of this Court. In that view of the matter, runs their submission, the Division Bench ruling of this Court in the case of chandrakant Nikam (supra), which is later in point of time, has to be followed by this court for deciding the fate of this appeal. ( 7 ) IT is an admitted position that the Division Bench ruling of this Court in the case of mohanlal Patel (supra) arose from a proceeding in the Civil Court, In each case the order of dismissal from service by a statutory body like the present appellant was under challenge before the Civil Court. The matters reached the High Court and a reference was also made to the Division Bench in view of the conflicting views of two single Judges of this Court. The question before the Division Bench was whether or not it would be open to the Civil Court to grant any declaratory relief regarding continuance of service. While upsetting the order of dismissal from service, In other words, the question before the court was also to the effect whether or not the contract of service between a workman and a statutory body as his employer can specifically be enforced in the Civil Court. The division Bench of this Court in its aforesaid ruling in the case of Mohanlal Patel (supra) has unequivocally answered that question in the affirmative. It has held that the civil court can grant such declaratory relief to the effect that the workman would continue in service after setting aside the order of dismissal from service if the impugned order is as a result of a breach of rules of natural justice or any of the rules or regulations framed by such a statutory body. If the civil court has a power to grant such relief, it would obviously mean that it has jurisdiction to decide the disputes between the parties. If the civil court has a power to grant such relief, it would obviously mean that it has jurisdiction to decide the disputes between the parties. ( 8 ) IT is true that the aforesaid ruling of the Supreme Court in the case of Premier automobiles (supra) has not been referred to in the aforesaid Division Bench ruling of this court in the case of Mohanlal Patel (supra ). I do not think I can disregard the aforesaid division Bench ruling of this court in the case of Mohanlal Patel (supra) on the ground that the aforesaid ruling of the Supreme Court in the case of Premier Automobiles (supra) was not referred to. It would be too much on my part to presume that the learned Judges of this Court comprising the Division Bench were unaware of the aforesaid ruling of the supreme Court in the case of Premier Automobiles (supra) more particularly when they referred to the ruling of the Supreme Court in the case of Sukhdev Singh and others v. Bhagatram Sardar Singh Raghuvanshi and another reported in AIR 1975 Supreme Court at page 1331. The ruling of the Supreme Court in the case of Premier Automobiles (supra) has also appeared in that very volume reporting the ruling of the Supreme Court in the case of Sukhdev Singh (supra ). It is an admitted position that the decision in the case of mohanlal Patel (supra) was rendered by the Division Bench of this Court on 7th May, 1976 certainly after the aforesaid ruling of the Supreme Court in the case of Premier automobiles (supra) appearing in the 1975 volume of All India Reporter. In that view of the matter, in my humble opinion, the Division Bench of this Court handing down the decision in the case of Mohanlal Patel (supra) could be presumed to be aware of the aforesaid ruling of the Supreme Court in the case of Premier Automobiles (supra ). It might not have chosen to deal with it elaborately and extensively as the decision was based on several other Supreme Court rulings. The Division Bench of this Court might not have thought it fit to burden its judgment by referring to one more ruling of the supreme Court and that too in the case of Premier Automobiles (supra ). It might not have chosen to deal with it elaborately and extensively as the decision was based on several other Supreme Court rulings. The Division Bench of this Court might not have thought it fit to burden its judgment by referring to one more ruling of the supreme Court and that too in the case of Premier Automobiles (supra ). ( 9 ) BESIDES, the question before the Division Bench of this Court was certainly the power of the civil court to grant the declaratory relief sought in the civil proceedings in question. It cannot be gainsaid that the court can grant such relief provided it has jurisdiction to try the proceedings brought before it When the Division Bench of this court decided in its aforesaid ruling in the case of Mohanlal Patel (supra) that the civil court can grant such declaratory relief, it would certainly mean that the civil court does have jurisdiction to decide the proceedings claiming such relief or reliefs. In that view of the matter also, it is not possible for me to come to the conclusion that the Division Bench of this Court while deciding the case of Mohanlal Patel (supra) was unaware of the aforesaid ruling of the Supreme Court in the case of Premier Automobiles (supra ). I am therefore unable to disregard the aforesaid ruling of the Division Bench of this Court in the case of Mohanlal Patel (supra) on the ground urged before me by the learned advocate for the appellant and the other advocates appearing as intervenors for and on behalf of the employer. ( 10 ) IT is difficult to accept the submission that there is no conflict between the aforesaid two Division bench rulings of this Court in the case of Mohanlal Patel (supra) and in the case of Chandrakant Nikam (supra ). It is obvious that the Division Bench of this Court in its ruling in the case of Mohanlal Patel (supra) has clearly held that the civil court does have power to grant the declaratory relief with respect to a service matter between a workman and a statutory body as his employer. It is obvious that the Division Bench of this Court in its ruling in the case of Mohanlal Patel (supra) has clearly held that the civil court does have power to grant the declaratory relief with respect to a service matter between a workman and a statutory body as his employer. When the impugned order is found to be in breach of rules of natural justice or in breach of rules and regulations framed by such statutory body, the court would definitely possess jurisdiction to decide the proceedings, if it is held that it has power to grant such relief. The Division Bench of this Court in its recent ruling in the case of Chandrakant Nikam (supra) has taken exactly a contrary view in as much as it has held that the civil court does not have jurisdiction to try such proceedings. Even if there is a breach of any of the rules or regulations framed by a statutory body, the civil court does not have jurisdiction if the controversy partakes the nature of an industrial dispute. It is true that no question of involvement of an industrial dispute was raised in the aforesaid Division Bench ruling of this Court in the case of mohanlal Patel (supra ). It may however be mentioned that one of the parties involved in the matter before the Division Bench of this Court in the case of Mohanlal Patel (supra) was this very appellant. The plaintiffs in the civil proceedings from which the matters were brought to the High court were its workmen. The activities of the present appellant can certainly be styled as those of an industry. The plaintiff in each case therein would certainly be a workmen. The controversy arising in the civil proceedings in question would certainly partake the nature of an industrial dispute. Despite that position, the division Bench of this Court has held that the civil court does have power to grant such declaratory relief with respect to a service matter between the statutory body and its workmen. The controversy arising in the civil proceedings in question would certainly partake the nature of an industrial dispute. Despite that position, the division Bench of this Court has held that the civil court does have power to grant such declaratory relief with respect to a service matter between the statutory body and its workmen. Simply because the Division Bench of this Court in its ruling in the case of chandrakant Nikam (supra) has analysed various provisions of the Industrial Disputes act, 1947 in extense, it is difficult to come to the conclusion that the Division Bench of this Court handing down its ruling in the case of Mohanlal Patel (supra) was unaware of various provisions thereof. In this view of the matter, there is no escape from the conclusion that the Division Bench ruling of this Court in the case of Chandrakant Nikam (supra) is directly in conflict with the Division Bench ruling of this Court in the case of mohanlal Patel (supra ). It would be difficult to reconcile these two rulings for the purpose of deciding the fate of this appeal. ( 11 ) THE learned Advocate for the appellant herein and the other learned advocates appearing for the employer as intervenors have urged before me that the Division Bench ruling of this Court in the case of Chandrakant Nikam (supra) has been carried in appeal before the Supreme Court and the Supreme Court has not ordered to stay the operation of the judgment in that case. This position is not disputed by and on behalf of the learned advocate for the respondent and the other learned advocates appearing for the workman as intervenors. It is an admitted position that the Supreme Court has granted special leave to appeal against the ruling of this Court in the case of Chandrakant Nikam (supra ). It would certainly mean that the matter is at large before the Supreme Court by way of appeal. The question of grant of interim relief is always decided on the basis of some prima facie considerations. Any observation of the court at the time of consideration of interim relief cannot therefore be accepted as its binding verdict. It is not anyones case that the supreme Court had an occasion to examine the correctness of the Division Bench ruling of this Court in the case of Mohanlal Patel (supra ). Any observation of the court at the time of consideration of interim relief cannot therefore be accepted as its binding verdict. It is not anyones case that the supreme Court had an occasion to examine the correctness of the Division Bench ruling of this Court in the case of Mohanlal Patel (supra ). In that view of the matter, I am of the opinion that the interim order passed by the Supreme Court while admitting the appeal against the ruling of this Court in the case of Chandrakant Nikam (supra) cannot be said to be conclusive in the matter. ( 12 ) THE learned advocate for the appellant and the other learned advocate appearing for the employer as intervenors have urged that a learned single Judge of this Court is bound by the Division Bench ruling of this Court later in point of time while facing a conflict, if any, between two Division Bench rulings of this Court. My attention has been invited to the Full Bench ruling of this Court in the case of Gujarat Housing Board v. Nagajibhai Laxmanbhai and others reported in 1985 (2) 26 (2) Gujarat Law Reporter at page 1190 and the Full Bench ruling of the Karnataka High Court in the case of govindanaik G. Kalaghatigi vs. West Patent Press Co. Ltd. and another reported in AIR 1980 Karnataka at page 92. Both the aforesaid rulings are with respect to the binding nature of the rulings of the Supreme Court of the benches of equal strength in the case of any conflict between two such rulings. It cannot be gainsaid that a High Court is subordinate to the Supreme Court qua the appellate jurisdiction. As provided in Art. 141 of the Constitution of India, the law declared by the Supreme court would be binding inter alia to all courts obviously including all High Courts functioning thereunder, that is, the constitution of India It is a settled principle of law that a subordinate court, administratively or otherwise, is bound to follow the dictum of law pronounced by its superior court. In that view of the matter, when a subordinate court faces with two conflicting decisions of its superior court, in order to make the administration of law certain and consistent, it has been held that the dictum of law pronounced in the ruling which is later in point of time has to be followed. In that view of the matter, when a subordinate court faces with two conflicting decisions of its superior court, in order to make the administration of law certain and consistent, it has been held that the dictum of law pronounced in the ruling which is later in point of time has to be followed. ( 13 ) THE position would be different qua a Judge exercising co-ordinate jurisdiction. It cannot be gainsaid that a Judge of this Court exercising his jurisdiction with respect to a second appeal cannot be said to be subordinate to this Court in any manner. His decision can be challenged only before the Supreme Court and not before the Bench of this court by way of any further Letters Patent Appeal in view of the relevant provisions contained in Sec. 100 of the Code. When a Judge of this Court is confronted with the conflicting division Bench rulings of this Court, it would be in the fitness of things to refer the matter to a larger Bench for resolution of such conflict If the submission to the effect that, in the case of a conflict between two decisions of this Court, the later in point of time has to be followed, a learned Single Judge of this Court will not be able to refer any matter to a larger, bench even if the two conflicting decisions are rendered by two different Single judges of this Court. In such a situation, he will have to follow the decision, even if it is of a learned Single Judge of this Court, which is later in point of time. If a learned Single judge, in be case of a conflict of decisions between two Single Judges of this Court, can refer the matter to a larger Bench, by analogy, he can very well do so in the case of a conflict between two Division Bench rulings of this Court. ( 14 ) IN view of our aforesaid discussion, I am of the opinion that the views expressed by the two Division Bench rulings of this Court in the respective rulings in the cases of mohanlal Patel (supra) and Chandrakant Nikam (supra) are in conflict with each other and it is difficult to reconcile them. The matter has therefore to be resolved by a larger bench. The matter has therefore to be resolved by a larger bench. ( 15 ) IN the result, the Registry is directed to place the papers of this Second Appeal before the teamed Chief Justice for referring the matter to a larger Bench in view of a conflict between the aforesaid two Division Bench rulings of this Court in the cases of mohanlal Patel (supra) and Chandrakant Nikam (supra ). .