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2008 DIGILAW 1456 (PNJ)

Indian Oil Corporation v. Sanjay Kumar

2008-08-25

VINOD K.SHARMA

body2008
Judgment Vinod K.Sharma, J. 1. This civil revision under Article 227 of the Constitution of India is directed against the order dated 27.10.2006 passed by the learned Additional Civil Judge (Sr. Division), Panipat dismissing the application of the petitioner for treating the issue of jurisdiction as preliminary issue. 2. The plaintiff respondent Sanjay Kumar has filed a suit for declaration claiming therein that he was appointed as Pharmacist in the Indian Oil Corporation w.e.f. 8.6.1998 at a fixed salary. However, no appointment letter was issued to the plaintiff. It was claimed that Management, Indian Oil Corporation has employed some staff for running First-Aid Centre at Panipat Refinery Project on regular basis in the regular pay scales, whereas the plaintiff respondent was appointed at a fixed salary and thus, principle of equal pay and equal work was violated. The plaintiff also claimed that he is working as Pharmacist since 8.6.1998 but has not been granted regular pay scale. It was further claimed that he was entitled to be absorbed in service after 240 days continuous service. The basic contention of plaintiff respondent was that the principal employee of the plaintiff respondent was Indian Oil Corporation as the First-Aid Centre where he is working was financed by the Corporation and is situated within the premises of Indian Oil Corporation. The Corporation has introduced the contractor Dr. Prem of M/s Lata Har Bhagwan Dass Memorial Hospital only with a view to defeat the right of plaintiff for regularization of services. On the above mentioned allegations the plaintiff sought decree for declaration that he was entitled to be brought on regular establishment on completion of 240 days continuous service or in the alternative he may be granted regular pay scale on the basis of equal pay and equal work. 3. In the written statement allegations made in the plaint were controverted and it was claimed that the plaintiff respondent is not an employee of the Indian Oil Corporation. 4. The petitioner initially filed an application under Order 7 Rule 11 of the Code for rejection of the plaint. However, said application was dismissed and the revision filed against the said order was also dismissed by observing that the petitioner can raise its plea before the learned trial court for treating the question of jurisdiction to be preliminary issue. 4. The petitioner initially filed an application under Order 7 Rule 11 of the Code for rejection of the plaint. However, said application was dismissed and the revision filed against the said order was also dismissed by observing that the petitioner can raise its plea before the learned trial court for treating the question of jurisdiction to be preliminary issue. The application moved by the petitioner for treating jurisdiction issue as preliminary issue has been dismissed by the learned trial court by observing that the question as to whether the civil court has jurisdiction or not can be decided after the parties lead evidence. 5. Mr. Ashok Aggarwal, learned senior counsel for the petitioner has challenged the order primarily on the ground that the claim of absorption of the contract labour is a subject-matter which falls within the jurisdiction of Industrial Court/Tribunal and cannot be adjudicated in the civil court. 6. In support of this contention reliance has been placed on the judgment of Honble Supreme Court in the case of A.P. SRTC and others vs. G. Sriniwas Reddy and others, 2006(3) SCC 674, wherein Honble Supreme Court has been pleased to lay down as under: "11 In this case, there was no notification under Section 10(1) of the CLRA Act, prohibiting contract labour. There was also neither a contention nor a finding that the contract with the contractor was sham and nominal and the contract labour working in the establishment were, in fact, employees of the principal employer himself. In view of the principles laid down in Steel Authority the High Court could not have directed absorption of the respondents who were held to be contract labour, by assuming that the contract labour system was only a camouflage and that there was a direct relationship of employer and employee between the Corporation and the respondents. If the respondents want the relief of absorption, they will have to approach the Industrial Tribunal/Court and establish that the contract labour system was only a ruse/camouflage to avoid labour law benefits to them. The High Court could not, in exercise of its jurisdiction under Article 226, direct absorption of the respondents, on the ground that work for which the respondents were engaged as contract labour, was perennial in nature. 12. The High Court could not, in exercise of its jurisdiction under Article 226, direct absorption of the respondents, on the ground that work for which the respondents were engaged as contract labour, was perennial in nature. 12. The respondents were also not entitled to the relief of absorption/ regularization on the basis of the circular dated 1.9.1988, as it specifically excluded contract labour. The order dated 5.11.1991 in the first round (WP No. 14353 of 1991) and the order dated 17.3.1998 in the second round (WP No. 30220 of 1997) did not examine the status of the respondent, nor recorded a finding that they were entitled to absorption. They merely disposed of the writ petitions with a direction to consider the representation/ claim of the respondents for absorption. Therefore, if the Corporation on considering the claims of the respondents found that they were not employed by the Corporation, but were contract labour, who were not entitled to seek absorption under the circular dated 1.9.1988, the Corporation was justified in rejecting their claim for absorption. The only remedy of the respondents, as noticed above, is to approach the Industrial Tribunal for declaring that the contract labour system under which they were employed was a camouflage and therefore, they were, in fact, direct employees of the Corporation and for consequential relief. The Corporation has stated in the special leave petition that such a question was already raised by the trade unions and was pending in ID No. 1 of 1996 on the file of the Industrial Tribunal, Hyderabad." 7. Learned counsel for the petitioner also placed reliance on the judgment of Honble Supreme Court in the case of Mathura Refinery Mazdoor Sangh vs. Indian Oil Corporation Ltd., Mathura Refinery Project Mathura and Anr., 1991(2) SCC 176, wherein Honble Supreme Court was pleased to lay down as under: "3. Pursuant to the order of this Court, the Central Government referred and the Industrial Tribunal decided the above referred to questions holding that the workmen were not employees of the Refinery and were rather the employees of the contractors. Pursuant to the order of this Court, the Central Government referred and the Industrial Tribunal decided the above referred to questions holding that the workmen were not employees of the Refinery and were rather the employees of the contractors. With regard to the termination of the services of the workmen and to what relief they were entitled, the Tribunal, after answering the questions against the Union and in favour of the Refinery, suggested the following steps in the interest of industrial harmony : i.) Though the Union should have pressed their demand for abolition of the contract labour system in the Refinery to the Central Advisory Board constituted under the Act, and even though it had been pursuing its remedies before this Court and the Tribunal, suggestions were made to the Refinery to approach the Advisory Board to make a study with regard to the desirability of continuance of the contract, labour system in the Refinery. ii.) Till the Central Advisory Board makes its recommendations and the action is taken, the management of the Refinery to ensure that the contract labour is paid at least the minimum of the pay scale of its regular employees performing the same or similar duties as the workmen of the contract labour and further that the workmen among the contract labour who have put in 5 years or more of work at the Mathura Refinery shall be continued to be employed in the same work even if there is a change in the contractor and such workmen shall not be terminated except as a punishment inflicted by way of disciplinary action for misconduct, etc., voluntary retirement or retirement on reaching the age of superannuation (which may be taken as the superannuation age forthe IOC employees) or on ground of continuous ill health. iii.) Refinery to give preference to those workmen in its employment by waiving the requirement of age and other qualificatipns wherever possible and it may also consider the creation of a benevolent fund for the contract labour wherein it may make a lump sum contribution initially and then make equivalent or even more contribution to match the contribution made by the workmen of the contract labour." 8. Learned counsel for the petitioner also placed reliance on the judgment of Honble Supreme Court in the case of Rajasthan SRTC and others vs. Ramdhara Indoloya, 2006(6) Supreme Court Cases 257, wherein Honble Supreme Court has been pleased to lay down as under: "5. In the instant case also, the respondent, who is also similarly placed as in the other case covered by the Industrial Disputes Act, has failed to approach the Industrial Court. But approached the civil court, which on the facts and circumstances of the case had no jurisdiction to entertain and try the suit. Therefore, this judgment rendered by this Court squarely applies to the facts and circumstances of this case. In our view, the respondent is not entitled to any payment by way of salary or other wages. He is also not entitled to any reinstatement or wages. However, if the respondent has already been paid some amount, the same amount may not be recovered from him. We make it clear that the respondent shall not be entitled to continue in service any further and he shall not be entitled to any wages except to that already paid to him. The respondent shall be discharged forthwith." 9. Reliance is also placed on the judgment of Honble Supreme Court in the case of Rajasthan State Road Transport Corporation and others vs. Lokesh Kumar Pareek, 2005(12) SCC 152 wherein Honble Supreme Court has been pleased to iay down as under: "2. Mr. S.K..Jain, learned counsel appearing for the Rajasthan Road Transport Corporation relying on three different judgments of this Court in Jitendra Nath Biswas vs. Empire of India and Ceylone Tea Co., Premier Automobiles Ltd. vs. Kamlekar Shantaram Wadke and Rajasthan SRTC vs. Krishna Kant, contended that civil suits in cases where relief is provided under the Industrial Disputes Act are not maintainable. We find sufficient force in the contentions of the learned counsel for the appellant. However, it is brought to our notice that in the earlier group of cases of the appellants in similar circumstances parties have entered into settlement. To avoid hardship on certain terms we think even in these appeals in the interest of justice similar relief be granted to the respondents in spite of the fact that the civil suits filed are not maintainable." 10. To avoid hardship on certain terms we think even in these appeals in the interest of justice similar relief be granted to the respondents in spite of the fact that the civil suits filed are not maintainable." 10. Finally reliance was placed on the judgment of Honble Supreme Court in the case of Jitendra Nath Biswas vs. M/s Empire of India and Ceylone Tea Co. and another, 1989(3) SCC 581, wherein Honble Supreme Court has been pleased to lay down as under: "6.....................The scheme of the Industrial Disputes Act clearly excludes the jurisdiction of the civil court by implication in respect of remedies which are available under this Act and for which a complete procedure and machinery has been provided in this Act" 11. Learned senior counsel for the petitioner then placed reliance on the judgment of Honble Supreme Court in the case of State of Haryana vs. Randhir Singh and others, 1995 Supp (1) SCC 144 to contend that it is the averments in the plaint which primarily govern the question jurisdiction. The contention of the learned senior counsel for the petitioner is that the reading of the plaint would show that the relief claimed by the petitioner falls within the jurisdiction of Industrial Tribunal/Court and therefore, Civil Court jurisdiction would be prima facie barred. 12. Learned senior counsel also placed reliance on the judgment of Honble Delhi High Court in the case of Municipal Corporation of Delhi vs. Ganesh Razak and another, 1994(3) SCT 302 to contend that question of equal pay and equal work can also be considered by the Labour Court/Industrial Tribunal even in exercise of power under Section 33CC(2) of the industrial Disputes Act, 1947. 13. Mr. R.K. Malik, learned senior counsel appearing on behalf of respondent No. 1, however, contended that the learned trial court has merely held that the question of jurisdiction is to be decided after the parties have led evidence and therefore this court in exercise of revisional jurisdiction cannot interfere at this stage. Learned senior counsel also contended that the petitioner is seeking declaration for absorption and claiming equal pay for equal work which is a constitutional civil right and therefore, it is open to the plaintiff-respondent to choose the remedy in the civil court or to approach the labour court. Order 14 Rule 2 of the Code of Civil Procedure reads as under: "1. xx xx 2. Order 14 Rule 2 of the Code of Civil Procedure reads as under: "1. xx xx 2. Court to pronounce judgment on all issues. - Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on ail issues, (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to - (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue." 14. Reading of the Order shows that the question of jurisdiction of the court or the question relating to bar to the suit created by any law is to be treated as preliminary issue. 15. In the present case, as already observed above the question of jurisdiction of the civil court is likely to dispose of the suit on the said question finally and therefore, it was not open to the Court to have postponed its decision of preliminary issue as has been done by way impugned order. 16. Consequently, this revision is allowed. Impugned order is set aside and the case is remanded back to the learned trial court to decide the question of jurisdiction as preliminary issue.