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2008 DIGILAW 610 (RAJ)

R. S. R. T. C. & Anr v. Ramesh Kuamr Sharma

2008-02-27

DALIP SINGH

body2008
JUDGMENT 1. - These revision petitions have been filed by the R.S.R.T.C. who is defendant in the suits which have been filed by the plaintiff non petitioners. In the said suits the defendant-petitioner R.S.R.T.C. filed applications under Order 7 Rule 11 Civil Procedure Code praying that the suits are not maintainable in view of the judgment of the Hon'ble Supreme Court in Zakir Hussain's case reported in , 2005 (7) SCC 447 , wherein the Hon'ble Supreme Court held that in respect of Industrial Disputes, the civil suit is not maintainable and the remedy lies by raising a dispute and getting the same adjudicated before the Industrial Tribunal/Labour Court, hence, the plaint deserves to be rejected. 2. The learned trial court in all these cases has rejected the application filed by the R.S.R.T.C. by in the impugned orders and hence, the R.S.R.T.C. has come up in revision before this court under Section 115 C.P.C. Since all these revision petitions have been filed by the R.S.R.T.C. and a common question arises they have been heard and decided together. 3. At the outset it may be stated that the learned counsel for the R.S.R.T.C. in these cases after going through their record submitted that in these suits the plaintiffs who are the non-petitioners have not challenged any order which may fall within the scope of Section 2A of the Industrial Disputes Act 1947. As such, there are no cases where the suits have been filed in respect of any orders either of dismissal, termination, discharge or retrenchment of the plaintiff workman. Instead in these suits the plaintiffs have sought relief in respect of grant of selection scale or withholding of increment as a measure of punishment or recovery etc. which do not fall within the purview of Section 2A of the Industrial Disputes Act, 1947. 4. Instead in these suits the plaintiffs have sought relief in respect of grant of selection scale or withholding of increment as a measure of punishment or recovery etc. which do not fall within the purview of Section 2A of the Industrial Disputes Act, 1947. 4. Learned counsels appearing on behalf of the R.S.R.T.C. submitted that the suits are not maintainable in view of the fact that the Hon'ble Supreme Court in Zakir Hussain 's case (supra) has laid down that the suits have been filed challenging the orders passed by the employer as being violative of the standing orders or even if no mention is made to the standing orders in the plaint on account of violation of Rules of natural justice which are equivalent to the provisions contained in standing orders the remedy under the civil court by way of suit is not maintainable. Hence, the application under Order 7 Rule 11 Civil Procedure Code deserves to be allowed and the plaint rejected. 5. Though notice was issued only in a few cases Shri B.L. Gupta, Advocate appeared for the workman-plaintiff and submitted that since the suits were not in respect of any orders as specified under Section 2A of the Industrial Disputes Act, 1947 and further that no ground was taken in the plaint regarding any breach of the standing orders or any provisions of the Industrial Disputes Act, 1947 the suit was maintainable before the civil court and these cases were not covered by the judgment of Zakir Hussain's case. 6. Learned counsel for the plaintiff-respondents further submitted that the judgment of the Hon'ble Supreme Court in Zakir Hussain's case and the case relied upon of R.S.R.T.C. v. Krishna Kant reported in , AIR 1995 SC 1715 , where cases of termination/dismissal falling within the scope of Section 2A as such they stand on a different footing and the present kind of cases do not fall within the class of cases for which the jurisdiction of the civil court is excluded. For the above proposition the learned counsel for the respondents took pains to read in extenso from the judgments of the Hon'ble Supreme Court. 7. I have perused the judgment of the Hon'ble Supreme Court in Zakir Hussain's case. For the above proposition the learned counsel for the respondents took pains to read in extenso from the judgments of the Hon'ble Supreme Court. 7. I have perused the judgment of the Hon'ble Supreme Court in Zakir Hussain's case. After dealing with the quoting from the earlier judgment in Premier Automobiles case reported in , AIR 1975 SC 2238 and para 35 of R.S.R.T.C. v. Krishna Kant's case reported in , AIR 1995 SC 1715 , with approval the Hon'ble Supreme Court laid down that since the plaintiff-workman whose services had been terminated on 08.05.1984 as they were not found satisfactory and the Workman was governed by the standing orders framed by the employer R.S.R.T.C. the suit before the Civil Court was not maintainable and the remedy was by way of reference under the provisions of the Industrial Disputes Act, 1947. Para Nos. 22 and 23 of the judgment may be reproduced for ready reference: "22. Premier Automobiles, ( AIR 1975 SC 2238 ) , was decided by a Bench comprising A. Alagiriswami, P.K. Goswami and N.L. Untwalia, JJ. The court found that the dispute concerned therein involved adjudication of rights/obligations created by the Industrial Disputes Act which means that it feel under Principle No. 2 in Dhulabai, (, AIR 1969 SC 78 ). Even so, the Court considered several decisions, English and Indian, on the subject and enunciated the following principles in Paras 23 and 24: "23. To sum up, 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 or 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 of 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 act an adjudication under the Act. (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 act 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 Section 33C or the raising of an industrial dispute, as the case may be. 24. We may, however, in relation to principle No. 2 stated above hasten to add that there will hardly be a dispute which will an industrial dispute within the meaning of Section 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 provision of law contained in Section 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 No. 2. Cases of industrial disputes by and large, almost invariably, are bound to be covered by principle No. 3 state above." 25. It is the Principle No. 2, and particularly the qualifying statements in Para 24, that has given rise to good amount of controversy. According to Principle No. 2, if the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Industrial Disputes Act, the jurisdiction of the Civil Court is alternative and it is left to the person concerned either to approach the Civil court or to have recourse to the machinery provided by Industrial Disputes Act. But Principle No. 2 does not stand alone; it is qualified by Para 24. Now what does Para 24 says? It says (i) in view of the definition of "industrial disputes" in the Industrial Disputes Act, there will hardly be an industrial dispute arising exclusively out of a right or liability under the general or common law. Most of the industrial disputes will be disputes arising out of a right or liability under the Act. It says (i) in view of the definition of "industrial disputes" in the Industrial Disputes Act, there will hardly be an industrial dispute arising exclusively out of a right or liability under the general or common law. Most of the industrial disputes will be disputes arising out of a right or liability under the Act. (ii) Dismissal of an unsponsored workman is an individual dispute and not an industrial dispute (unless of course it as espoused by the Union of Workman or a body of workmen) but Section 2A has made it an industrial dispute. Because of this "civil courts will have hardly an occasion to deal with the type of cases falling under principle No. 2.". By and large, industrial disputes are bound to be covered by Principle No. 3. (Principle No. 3 says that where the dispute relates to the enforcement or a right or obligation created by the Act, the only remedy available is to get an adjudication under the Act.). Before we proceed to consider the effect and impact of Para 24 on Principle No. 2 in Para 23, it would be appropriate to refer briefly to the decisions referred to in Para 26 of the said judgment. The Court approved the following decisions : (i) Krishnan v. East India Distilleries and Sugar Factories Ltd., Nellikuppam., (1964) 1 Lab. LJ, 217: AIR 1964 Mad 81 , a decision rendered by a single Judge of the Madras High Court. It was held therein that "die 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." (ii) Madura Mills Company Ltd. v. Guruvammal, (1967) 2 Lab LJ 397: (1967) 2 Mad LJ 287) , decided by Alagiriswami, J., (at that time a Judge of the Madras High Court). It was a case concerning the enforcement of a right created by Industrial Disputes Act. (iii) The decision of a learned Single Judge of Mysore High Court in Nippani Electricity Company (Private) Ltd. (by its Director, V.R. Patravali) v. Bhimarao Laxman Patil, (1969) 1 Lab LJ 268 : 1968 Lab IC 1571 , a decision of the Division Bench of the Bombay High Court in Pigment Lakes and Chemical Manufacturing Co. (iii) The decision of a learned Single Judge of Mysore High Court in Nippani Electricity Company (Private) Ltd. (by its Director, V.R. Patravali) v. Bhimarao Laxman Patil, (1969) 1 Lab LJ 268 : 1968 Lab IC 1571 , a decision of the Division Bench of the Bombay High Court in Pigment Lakes and Chemical Manufacturing Co. Private Ltd. v. Sitaram Kashiram Konde, 71 Bom LR 452: 1970 Lab IC 115 (Bom) , and the decision of a learned Single Judge of the Kerala High Court in N.A. Madhavan v. State of Kerala, (1970) 1 Lab LJ 272 , where it was held that the jurisdiction of the Civil Court to deal with matters mentioned in Chapter V-A is impliedly barred, (iv) The decision of a Division Bench of the Calcutta High Court in M/s. Austin Distributors Pvt. Ltd v. Nil Kumar Das, 1970 Lab IC 323 (Cal) , which arose from a suit for recovery of damages for wrongful dismissal. The High Court held that Civil Court's jurisdiction is not barred, inasmuch as the only ground upon which the dismissal was impugned was in violation of the contract of service governed by general law. A decision of the Mysore High Court in Syndicate Bank v. Vincent Robert Lobo, (1971) 2 Lab LJ 46:1971 Lab IC 1055 , to the same effect. 8. So far as the above propositions of law is concerned, the same have been taken with approval from the earlier judgment in Krishna Kant's case. Hence, it is necessary to examine the judgment in Krishna Kant's case of the Hon'ble Supreme Court in the light of the facts of the present case. 9. The Workman in Krishna Kant's case was terminated from service after an enquiry was held against him on charges of misconduct being found; proved. The plaintiff-workman filed a Civil Suit for declaration that the order terminating his services be declared invalid. It was in the factual background that the objection was raised regarding the jurisdiction of the Civil Court being barred. 10. The Hon'ble Supreme Court after considering various provisions of the Industrial Disputes Act, 1947 as well as the Industrial Employment (Standing Orders) Act, 1946 in para 18 of the said judgment laid down as follows: "18. It was in the factual background that the objection was raised regarding the jurisdiction of the Civil Court being barred. 10. The Hon'ble Supreme Court after considering various provisions of the Industrial Disputes Act, 1947 as well as the Industrial Employment (Standing Orders) Act, 1946 in para 18 of the said judgment laid down as follows: "18. The expression "Industrial Disputes" is defined in Section 2(k) to mean any dispute or difference (i) between employers and employers; (ii) between employers and workmen; and (iii) between workmen and workmen, provided such dispute is connected with the employment, non-employment, terms of employment or conditions of labour of any person. It is well settled by several decisions of this court that a dispute between the employer and an individual workman does not constitute an industrial dispute unless the cause of the workman is espoused by a body of workmen. See Bombay Union of Journalist v. "The Hindu". (1961) 2 Lab LJ 436: AIR 1963 SC 318 ) , Of course, where the dispute concerns the body of the workers as a whole or to a section thereof, it is an industrial dispute. It is precisely for this reason that Section 2A was inserted by Amendment Act 35 of 1965. It says, "where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workman is a party to the disputes." By virtue of this provision, the scope of the concept of industrial dispute has been widened, which now embraces not only Section 2(k) but also Section 2A. Section 2A, however, covers only cases of discharge, dismissal, retrenchment or termination otherwise of services of an individual workman and not other matters, which means that to give an example-if a workman is reduced in rank pursuant to a domestic enquiry, the dispute within the meaning of Section 2A. (However, if the union or body of workmen espouses his cause, it does become an industrial dispute.) We have given only one instance; there may be many disputes which would not fall within Section 2(k) or Section 2A. (However, if the union or body of workmen espouses his cause, it does become an industrial dispute.) We have given only one instance; there may be many disputes which would not fall within Section 2(k) or Section 2A. It is obvious that in all such cases, the remedy is only in a Civil Court or by way of arbitration according to law, if the parties so choose. The machinery provided by the Industrial Disputes Act for resolution of disputes (in short, Sections 10 or 12) does not apply to such a dispute." 11. A closer look at the above para of the judgment of the Hon'ble Supreme Court shows that the Hon'ble Supreme Court in Krishna Kant's case in para 18 took note of the disputes between workmen and employers and classified them as follows: "A. Industrial Disputes under Section 2(k): (i) Raised by the Union on-behalf of the Workmen. (ii) Raised by the Workman individually. B. Industrial Disputes covered under Section 2A." 12. It has clearly been laid down in judgment in para 18, quoted above that, "It is well settled by several decisions of this court that a dispute, between the employer and an individual workman does not constitute an industrial dispute unless the cause of the workman is espoused by a body of workmen." 13. Dealing with this aspect further in the same paragraph and making out a distinction between the class of cases covered by Section 2A of discharge, dismissal, retrenchment or termination on the one hand and on the other hand the disputes not covered by Section 2A, their Lordships went on to say as follows: "Section 2A, however, covers only cases of discharge, dismissal, retrenchment or termination otherwise of services of an individual workman and not other matters, which means that - to give an example - if a workman is reduced in rank pursuant to a domestic enquiry, the dispute within the meaning of Section 2A. (However, if the union or body of workmen espouses his cause, it does become an industrial dispute.) We have given only one instance; there may be many disputes which would not fall within Section 2(k) or Section 2A. It is obvious that in ail such cases, the remedy is only in a Civil Court or by way of arbitration according to law, if the parties so choose. It is obvious that in ail such cases, the remedy is only in a Civil Court or by way of arbitration according to law, if the parties so choose. The machinery provided by the Industrial Disputes Act for resolution of disputes (in short, Sections 10 or 12) does not apply to such a dispute." 14. Thus, in case of disputes which were other than those under Section 2A, if the cause is espoused by the Union it would be an industrial dispute liable to be adjudicated by the forum under the Industrial Disputes Act, 1947, but in all other cases the resort to Civil Court is the only remedy and the jurisdiction of the forum under the Industrial Disputes Act, Sections 10 and 12 would not apply. 15. After having enunciated the aforesaid distinction, their Lordships proceeded to lay down the principles in para No. 32 of the judgment as follows: "32. We may now summarise the principles flowing from the above discussion: (1) Where the dispute arises from general law of contract, i.e., where reliefs are claimed on the basis of the general law of contract, a suit filed in civil court cannot be said to be not maintainable, even though such a dispute may also constitute an "industrial dispute" within the meaning of Section 2(k) or Section 2A of the Industrial Disputes Act, 1947. (2) Where, however, the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes Act, the only remedy is to approach the forums created by the said Act. (3) Similarly, where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactments like Industrial Employment (Standing Orders) Act, 1946-which can be called 'sister enactments' to Industrial Disputes Act-and which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the Industrial Disputes Act provided they constitute industrial disputes within the meaning of Section 2(k) and Section 2A of the Industrial Disputes Act or where such enactment says that such dispute shall be either treated as an industrial dispute or says that it shall be adjudicated by any of the forums created by the Industrial Disputes Act. Otherwise, recourse to Civil Court is open. Otherwise, recourse to Civil Court is open. (4) It is not correct to say that the remedies provided by the Industrial Disputes Act are not equally effective for the reason that access to the forum depends upon a reference being made by the appropriate government. The power to make a reference conferred upon the Government is to be exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex-facie. The power conferred is the power to refer and not the power to decide, though it may be that the Government is entitled to examine whether the dispute is ex-facie frivolous, not meriting an adjudication. (5) Consistent, with the policy of law aforesaid, we commend to the Parliament and the State Legislatures to make a provision enabling a workman to approach the Labour Court/Industrial Tribunal directly - i.e., without the requirement of a reference by the Government - in case of industrial disputes covered by Section 2A of the Industrial Disputes Act. This would go a long way in removing the misgivings with respect to the effectiveness of the remedies provided by the Industrial Disputes Act. (6) The certified Standing Orders framed under and in accordance with the Industrial Employment (Standing Order) Act, 1946 are statutorily imposed conditions of service and are binding both upon the employers and employees though they do not amount to "statutory provisions". Any violation of these Standing Orders entitles an employee to appropriate relief either before the forums created by the Industrial Disputes Act or the Civil Court where recourse to Civil Court is open according to the principles indicated herein. (7) The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute resolution mechanism to the workmen, mechanism which is speedy, inexpensive, informal and un-encumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to civil courts. Indeed, the powers of the Courts and Tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute." 16. Indeed, the powers of the Courts and Tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute." 16. Applying the above decision and bearing in mind the distinction laid down by the Hon'ble Supreme Court it comes that in cases falling within the scope of Section 2A of the Industrial Disputes Act, 1947 the jurisdiction of the Civil Court would be barred as the industrial workman has the right to approach the forum under the Industrial Disputes Act, 1947. 17. Similarly, in case of industrial disputes covered by Section 2(k) which are espoused by the Union or the body of workmen, as there disputes, other than those in relation to matters covered under Section 2A, can be espoused by the Union alone before the Forum under the Industrial Disputes Act, 1947, the jurisdiction of the Civil Court shall be barred. 18. There remains the third category of cases which is a dispute between the plaintiffs-workman the his employers but not espoused by the Union or body of workmen it would not come within the scope of Section 2(k) and hence, it may be raised before the Civil Court by means of a Civil suit notwithstanding that any breach of standing orders is alleged as the individual workman is incapable of raising such an industrial dispute under the Industrial Disputes Act, 1947. 19. Thus, the principles which have been laid down by the Hon'ble Supreme Court must be construed in the situation that those were cases of termination, etc. falling within the scope of Section 2A and the principles regarding the jurisdiction of the Civil Court to entertain the Suit must be understood in that perspective. 20. A similar situation arose in the case of Jagdish Narain Sharma & Another v. Rajasthan Patrika Ltd., and Another reported in 1993 (8) SLR 273 , wherein the learned Single Judge of this Court (Hon'ble Mr. Justice G.S. Singhvi, as he then was) in para No. 11 of the judgment dealt with a similar case and laid down as follows: "...The appropriate Government can make a reference under Section 10(1) read with Section 12(5) for adjudication by a Labour Court or Tribunal of an 'industrial disputes', and not an individual dispute. Justice G.S. Singhvi, as he then was) in para No. 11 of the judgment dealt with a similar case and laid down as follows: "...The appropriate Government can make a reference under Section 10(1) read with Section 12(5) for adjudication by a Labour Court or Tribunal of an 'industrial disputes', and not an individual dispute. Even if, the Government makes a reference of an individual dispute by treating it to be an industrial dispute, the labour Court or the Tribunal does not get a jurisdiction to adjudicate on such dispute. Any dispute of an individual workman in relation to the matters enumerated in the Second and Third Schedule can become an industrial dispute only if, his cause is espoused by a Trade Union of workmen or a substantial number of workmen engaged in the establishment. The only exception is in respect of the matters specified in Section 2A. If an individual workman raises a grievance regarding leave, wages, holidays, bonus, P.F., gratuity, allowance, or an order passed under the standing orders etc. he cannot seek relief under the Industrial Disputes Act, till his grievance is taken up by a Union or by a substantial number of workmen." 21. Thus, so far as matters not covered by Section 2A are not an industrial dispute unless espoused by the Union or by a body of workmen, so as to give rise to the jurisdiction for adjudication of the reference by any of the forum under the Industrial Disputes Act, 1947. 22. In view of the above and in the light of the facts that there are no cases of the kind enumerated under Section 2A of the Industrial Disputes Act and have not been espoused before the Court by the Union or the body of the workmen, the jurisdiction of the Civil Court is not barred. 23. The revision petitions as well as the stay applications are accordingly dismissed. *******