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2013 DIGILAW 331 (CHH)

Karn Veer Ajmani v. State Bank of India

2013-11-20

SANJAY K.AGRAWAL

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JUDGMENT Sanjay K. Agrawal, J. 1. This is an appeal by the plaintiff under Section 96 of the Code of Civil Procedure, 1908 (henceforth 'the CPC') calling in question the judgment and decree dated 24-6-2006 passed by 1st Additional District Judge, Raigarh in Civil Suit No. 8-A/2006, by which suit of the plaintiff for permanent injunction and recovery of damages has been dismissed by the trial Court holding that the suit is not maintainable being barred under Section 9 of the C.P.C. Brief facts in nutshell, necessary for adjudication of this appeal, are as under: (1.1) The appellant/plaintiff, being the employee of the respondents/defendants/State Bank of India filed a suit for permanent injunction and recovery of damages stating inter alia that the defendants/Bank is harassing him for one or the other reasons and on 3-4-2002, an explanation has been called which has been duly replied by the appellant/plaintiff and in spite of repeated requests by the appellant/plaintiff filed the suit for perpetual injunction and mandatory injunction claiming relief as stated in paragraphs 1 to 4 under the title 'reliefs' and also claiming damages of ` 49,284/- and-recovery of ` 51,000/-. On being summoned, the defendants/Bank filed a written statement and submitted a reply opposing the plait averments and also submitted that the State Bank of India is an industry within the meaning of Section 2(j) of the Industrial Disputes Act, 1947 (henceforth 'the ID Act') and the plaintiff being workman under Section 2(s) of the ID Act the dispute raised by the plaintiff being the industrial dispute cognizable under Section 10 of the ID Act the jurisdiction vests in the Central Government's Industrial Tribunal-cum-Labour Court and, therefore, by virtue of Section 9 of the C.P.C. jurisdiction of the civil Court is barred. (1.2) On the basis of the pleadings of the parties, the trial Court framed 5 issues in which issue No. 3 relates to jurisdiction of the civil Court. The issue relating to jurisdiction of the civil Court was taken-up as a preliminary issue and by the impugned judgment and decree dated 24-6-2006 the said issue has been decided in affirmative and negative that civil Court's jurisdiction is barred to take cognizance of the suit as framed and filed by the plaintiff. 2. Ms. The issue relating to jurisdiction of the civil Court was taken-up as a preliminary issue and by the impugned judgment and decree dated 24-6-2006 the said issue has been decided in affirmative and negative that civil Court's jurisdiction is barred to take cognizance of the suit as framed and filed by the plaintiff. 2. Ms. Sharmila Singhai, learned counsel appearing for the appellant/plaintiff would submit that though the appellant/plaintiff being an employee is a workman within the meaning of Section 2(s) of the ID Act and the respondents/defendants/State Bank of India is an industry within the meaning of Section 2(j) of the ID Act as jurisdiction of the civil court is not barred under Section 9 of the C.P.C. as barred the plaintiff has claimed enforcement of his civil rights on account of harassment done by the defendants/Bank he cannot competently claim under the provisions of the ID Act. 3. Per contra, Shri B.D. Guru, learned counsel appearing for the respondents/defendants/State Bank of India, referring to the definition of industrial disputes as defined in Section 2(k) of the ID Act, would submit that all the disputes raised by the appellant/plaintiff is connected with the terms of employment or at least related to the terms and conditions of his employment and, therefore, the said dispute being pure and simple industrial dispute the jurisdiction of the civil Court is expressly barred under Section 9 of the C.P.C. as it is open for the appellant/plaintiff to raise an industrial dispute invoking Section 10 of the ID Act. 4. I have heard the rival submissions, given them thoughtful consideration and have perused the record of the civil suit. 5. The question that falls for consideration before this Court is whether the suit as framed and filed by the appellant/plaintiff claiming relief of permanent injunction and recovery of damages is maintainable and whether jurisdiction of the civil Court is barred by virtue of provision contained in Section 9 of the C.P.C. 6. The following issue was framed by the trial Court which relates to jurisdiction of the Court which was taken-up as a preliminary issue reads as under: dz- Okkniz’u fu”d”kZ 3- D;k oknh }kjk pkgh xbZ lgk;rk vkS|ksfxd fookn gksus ls /kkjk 9 O;ogkj izfdz;k lafgrk ds varxZr iks”k.kh; ugha gS \ Okknh }kjk pkgh xbZ lgk;rk vkS|ksfxd fookn gksus ls /kkjk 9 O;ogkj izfdz;k lafgrk ds varxZr iks”k.kh; ugha gSA 7. Admittedly and undisputedly, the appellant/plaintiff is an employee of the State Bank of India and he is a workman within the meaning of Section 2(s) of the ID Act. It is also not in dispute between the parties that the State Bank of India is not an industry within the meaning of Section 2(j) of the ID Act. Now, the question remains for consideration is whether the dispute which has been raised by the plaintiff by filing the civil suit for permanent injunction and recovery of damages is cognizable or not by the civil Court or the appellant/plaintiff is required to approach to a competent Court under the provisions of Section 10 of the ID Act. In order to decide as to whether the jurisdiction of the civil Court is barred under Section 9 of the C.P.C. or not. In order to decide this question, it would be pertinent to note the reliefs claimed by the plaintiff in the suit, which read thus: v- Okknh }kjk fn;s x;s i=ksa dks fcuk fdlh foyEc ds ,oe~ fcuk fdlh fVIi.kh ds Lohdkj dj mfpr ikorh iznku djsaA & c- oknh ds }kjk fn;s x;s i=ksa@vkosnuksa dh fof/kor~ lquokbZ izfroknhx.k djsa ,oe~ uSlfxZd U;k; ds fl)karksa dk vuqlj.k djrs gq;s fof/kor~ fujkdj.k dj lwfpr djsaA & l- oknh dks cSad esa lq/kk: :i ls dk;Z djus ds fy;s dwM+knku ,oe~ vU; lHkh vko’;d lqfo/kk;sa iznku djsaA & n- Okkn fu.kZ; gksus rd lsok ‘kRrksZa esa dksbZ ifjorZu u djsaA & b- Okknh dks >wBs vkjksiksa }kjk izrkfM+r djuk can djsaA & Q- oknh dks cSad ds gh funsZ’kksa dk ikyu djus ,oe~ turk ls ikyu djokus ds fy;s vko’;d lg;ksx inzku djsaA & x- dk;kZy;hu vkns’k }kjk lwfpr djus dh fLFkfr esa oknh dks dk;kZy;hu vkns’k dh ,d gLrk{kfjr izfr miyC/k djk;saA & g- lHkh dkmaVjksa ij fd;s tkus okys dk;Z dk;kZof/k] Hkkstukodk’k le; iznf’kZr djsaA dkmaVjksa ij cany Qyd iznku fd;s tk;sa rkfd dk;kZof/k ds i’pkr~ mUgsa iznf’kZr fd;k tk ldsA eq[; Qyd ij Hkh Hkkstukodk’k le; iznf’kZr djsaA dkmaVjksa dh f[kMfd;k¡ dk;kZof/k esa [kqyh j[kh tkosaA & ;- oknh dks udyh uksVksa ds ijh{k.k ds fy;s Fkkuk dksrokyh fHktok;saA & t- miizca/kd jksdM+ Jh ,l-,l- feJk ds }kjk dh xbZ tkylkth dh tk¡p dj mUgsa nf.Mr djsaA & d- oknh ds [kkrs esa orZeku ?kVh C;kt nj rFkk Hkfo”; esa C;kt njksa esa ifjorZu gksus ij rqjUr izHkko’khy djsaA 8. A bare perusal of the reliefs claimed by the plaintiff would show that it is mainly related to his service conditions/is connected with the employment and it relates to the conditions of his service. As he is claiming that his application submitted to the defendants/Bank be decided after giving opportunity of hearing to him and also that his service conditions be not changed and he be granted necessary facilities for his smooth working in the Bank etc. Section 2(k) of the ID Act defines the industrial disputes, which reads thus: 2. Definitions.--In this Act, unless there is anything repugnant in the subject or context,-- xxxxx xxxxx xxxxx (k) "industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person; 9. The industrial dispute has been defined to mean a dispute between employer and workman which is connected with the employment or the terms of the employment or that conditions of a labour, if any. A bare perusal of the reliefs claimed by the plaintiff would show that most of the reliefs claimed by the plaintiff related to service conditions and would come within the meaning of industrial dispute. It is not the case of the appellant/plaintiff that such an order has been passed against him like dismissal from service without holding a departmental enquiry or imposing any penalty without giving an opportunity of hearing to him. 10. In The Premier Automobiles Ltd. Vs. Kamlakar Shantaram Wadke and others AIR 1975 SC 2238 , the Supreme Court had an occasion to consider jurisdiction of the civil Court in relation to industrial dispute. The Supreme Court laid down principles applicable to jurisdiction of the civil Court in relation to industrial dispute as under: 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. 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 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 created under the Act, then the only remedy available to the suitor is to get 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 VA then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute, as the case may be. 11. The aforesaid decision of the Supreme Court has been considered and reiterated in Rajasthan State Road Transport Corporation and another Vs. Bal Mukund Bairwa (2) (2009) 4 SCC 299 , and has been quoted with approval in paragraph 25 of the said judgment and other decisions have also been considered by the Supreme Court and held as under: 36. If an employee intends to enforce his constitutional rights or a right under a statutory regulation, the civil court will have the necessary jurisdiction to try a suit. If, however, he claims his right and corresponding obligations only in terms of the provisions of the Industrial Disputes Act or the sister laws so called, the civil court will have none. In this view of the matter, in our considered opinion, it would not be correct to contend that only because the employee concerned is also a workman within the meaning of the provisions of the 1947 Act or the conditions of his service are otherwise governed by the Standing Orders certified under the 1946 Act, ipso facto the civil court will have no jurisdiction. This aspect of the matter has recently been considered by this Court in Rajasthan SRTC v. Mohar Singh, (2008) 5 SCC 542 . This aspect of the matter has recently been considered by this Court in Rajasthan SRTC v. Mohar Singh, (2008) 5 SCC 542 . The question as to whether the civil court's jurisdiction is barred or not must be determined having regard to the facts of each case. 37. If the infringement of the Standing Orders or other provisions of the Industrial Disputes Act are alleged, the civil court's jurisdiction may be held to be barred but if the suit is based on the violation of principles of common law or constitutional provisions or on other grounds, the civil court's jurisdiction may not be held to be barred. If no right is claimed under a special statute in terms whereof the jurisdiction of the civil court is barred, the civil court will have jurisdiction. 12. Following the aforesaid decision rendered in Bal Mukand Bairwa (2009) 4 SCC 299 (supra), the Supreme Court in Rajasthan State Road Transport Corporation and others Vs. Deen Dayal Sharma (2010) 6 SCC 697 , held that nature of right sought to be enforced is decisive in determining the jurisdiction of civil Court. Paragraph 16 of the report states as under: 16. In Bal Mukund Bairwa (2), in para 37 of the Report, the position has been explained that if the infringement of the Standing Orders is alleged, the civil court's jurisdiction may be held to be barred but if the suit is based on the violation of principles of common law or constitutional provisions or on other grounds, the civil court's jurisdiction may not be held to be barred. In our opinion, the nature of right sought to be enforced is decisive in determining whether the jurisdiction of civil court is excluded or not. 13. In the present case, the suit is not based on violation of the constitutional provisions or any other law for the time being in force and is mainly based on seeking of certain relief of service benefits or grant of facilities to him. The rights, sought to be enforced, could be available only by taking recourse to the provisions of the ID Act, that is, by raising an industrial dispute. 14. The rights, sought to be enforced, could be available only by taking recourse to the provisions of the ID Act, that is, by raising an industrial dispute. 14. Thus, applying the ratio laid down by the Supreme Court in the aforesaid cases to the instant case, I arrive at a finding that the rights sought to be enforced by the appellant/plaintiff in the civil suit, if available to him, could have been enforced only by raising an industrial dispute and not by a civil suit before a civil Court. In the circumstances, it is held that the civil Court had no jurisdiction to entertain and try the suit filed by the appellant/plaintiff and the trial Court has not committed any illegality in dismissing the suit holding that recorded on the preliminary issue. 15. Resultantly, the appeal deserves to be and is hereby dismissed. The impugned judgment and decreed the civil Court had no jurisdiction. I hereby affirm the finding of the trial Court dated 24-6-2006 passed by the trial Court is affirmed. There shall be no order as to costs. A decree be drawn-up accordingly.