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2014 DIGILAW 509 (GAU)

Sarawagi Chemical Agency v. Bhola Jha

2014-05-09

N.CHAUDHURY

body2014
JUDGMENT AND ORDER (CAV) By this application under Article 227 of the Constitution of India, a management of the Proprietorial Firm owned by M/s Associate Entrade Limited has challenged the order dated 10.01.2013 passed by the learned Munsiff No.3, Guwahati, in Tile Suit No. 162 of 2012 holding that a suit instituted by the opposite party workman challenging his discharge from service is maintainable under Section 9 of the Code of Civil Procedure. 2. The opposite party Bhola Jha instituted Title Suit No. 162 of 2012 in the Court of learned Munisff No.3 at Guwahati stating that he joined service of the defendants Management as a driver in the year 1980 on temporary basis. He continued serving without any break whereupon his services were made permanent with effect from 01.04.1999. But on 02.01.2012 the Authorised Official of the management served a notice of discharge on him by paying Rs.1,000/- as salary. The plaintiff tried to pursue his employers but all his efforts were in vain. Having served a pleaders’ notice on management on 11.01.2012 the plaintiff sought for revocation of his discharge, however, to no avail. Ultimately, the plaintiff became compelled to institute the suit praying for reinstatement in service by setting aside the discharge procedure adopted vide notice dated 02.01.2012 & 21.02.2012. The management filed a written statement, inter alia, contending that the suit is not maintainable. The averments of facts were also disputed. Thereafter, by an application dated 10.07.2012, the petitioner herein made a prayer for hearing on preliminary issue on the point of maintainability of the suit. The plaintiff submitted objection thereto and after hearing the learned counsel for the parties, the learned trial court passed order on 10.01.2013 holding that the suit was maintainable. It is this order which has been challenged in the revision petition. 3. I have heard Mr. S.S. Sharma, learned Senior Counsel assisted by Mrs. L. Sharma, learned counsel for the petitioner as well as Mr. B.R. Dey, learned Senior Counsel assisted by Mr. P. Sen, learned counsel for the opposite party. 4. This revision petition came up for hearing on 26.02.2014 when learned counsel for the petitioner placed reliance in the case of Chandrakanta Tukaram Nikam vs. Municipal Corporation of Ahemadabad reported in (2002) SCC 542. This judgment was delivered by a Bench of three Hon’ble judges. P. Sen, learned counsel for the opposite party. 4. This revision petition came up for hearing on 26.02.2014 when learned counsel for the petitioner placed reliance in the case of Chandrakanta Tukaram Nikam vs. Municipal Corporation of Ahemadabad reported in (2002) SCC 542. This judgment was delivered by a Bench of three Hon’ble judges. Speaking through Patnaik, J, it held that the suit of this nature is impliedly barred by virtue provisions of Industrial Disputes Act, 1947, because the Act provides a forum to adjudicate such dispute. Per contra, learned Senior Counsel appearing for the opposite party places reliance on the case of Rajasthan SRTC and Others vs. Mohar Singh ( AIR 2008 SC 2553 ) which without noticing former judgment passed by three Hon’ble judges of Supreme Court held that a suit of similar nature is maintainable. By order dated 26.02.2014, therefore, both the learned Senior Counsel were given time to apprise this Court as to the position of law in a situation like the one where there are divergent views of the Hon’ble Supreme Court on one issue. Accordingly, the matter came up for hearing again on 10.04.2014, on which date the learned counsel for the opposite party brought yet another judgment passed by the Hon’ble Supreme Court in the Case of Rajasthan SRTC vs. Bal Mukund Bairwa reported in (2009) 4 SCC 299 . This judgment was passed after considering the earlier judgments of the Hon’ble Supreme Court in the case of Rajasthan SRTC vs. Mohar Sing ( AIR 2008 SC 2553 ). In this case, another three judges Bench of the Hon’ble Supreme Court considered the jurisdiction of Civil Court vis-à-vis Labour Court in employer and employee dispute and held that the Civil Suit is maintainable. 5. Mr. S.S. Sharma, learned Senior Counsel appearing for the petitioner, however, fairly submits that when there are 2 judgments by Co-ordinate Bench, the latter judgment shall have precedence. Here in this case, the question was as to whether under Section 9 of the Code of Civil Procedure, a Civil Court can have jurisdiction over a matter involving industrial dispute. The jurisdiction of a special tribunal constituted for this purpose vis-à-vis jurisdiction of Civil Court has always been in debate. In the case of Wolverhampton New Waterworks Co. Here in this case, the question was as to whether under Section 9 of the Code of Civil Procedure, a Civil Court can have jurisdiction over a matter involving industrial dispute. The jurisdiction of a special tribunal constituted for this purpose vis-à-vis jurisdiction of Civil Court has always been in debate. In the case of Wolverhampton New Waterworks Co. vs. Hawkesford, Wills, J, held that when a liability exists at common law and that liability is affirmed by a statute and it gives a special and a peculiar form of remedy, different from the one which existed at common law other then unless the statute contains words which expressly or by necessary implication excluded the common law remedy the party suing his election to pursue either that or the statutory remedy. This view received consideration of the Hon’ble Supreme Court in the case of Firm Seth Radha Kishan vs. Administrator, Municipal Committee, Ludhiana ( AIR 1963 SC 1547 ). This was also a Bench constituted by three Hon’ble Judges and it was held therein that the Hon’ble Supreme Court noted the aforesaid view of Willis, J, which was approved by judicial committee of the Privy Council in the case of Secretary of State. Vs. Mask & Co. (AIR 1940 PC 105). In paragraph 7 of this Court’s judgment, the said Bench of three Judges of the Hon’ble Supreme Court held that under Section 9 of the Code of Civil Procedure, the Court shall have jurisdiction to try all suits of civil nature excepting suit of which the cognizance is either expressly or impliedly barred but merely conferment of special jurisdiction on a tribunal in respect such matter does not itself exclude the jurisdiction of Civil Court. A Civil Court has always plenary jurisdiction to try all suits unless its jurisdiction is expressly or by necessary implication is barred. The law held by Willis, J, approved by Privy Council in Secretary of State (Supra) considered by latter judgment of the Hon’ble Supreme Court in the case of Premium Automobiles Limited vs. Kamlakar Sankaram Eadke (AIR 1975 SC 2938) is the same as referred to above. The law held by Willis, J, approved by Privy Council in Secretary of State (Supra) considered by latter judgment of the Hon’ble Supreme Court in the case of Premium Automobiles Limited vs. Kamlakar Sankaram Eadke (AIR 1975 SC 2938) is the same as referred to above. In the case of Premium Automobiles (Supra) also the law approved by Secretary of State (Supra) was considered by the Hon’ble Supreme Court to hold that in case of pre-existing right at common law, the plaintiff shall have right to chose remedy either in Civil Court or in the special forum prescribed under the Industrial Dispute Act. Considering all these judgments, there is no difficulty to hold that the Civil Court has plenary power in regard to adjudication of all suits of civil nature. Right against termination of service of a workman is a pre existing right at common law prior to legislation of Industrial Dispute Act, 1947 and so, a workman can avail remedy in Civil Court against his termination. The learned trial court, therefore, has not committed any error in passing the order impugned in this revision petition. The difficulty arising out of Chandrakanta Tukaram Nikam (Supra) appears to have been removed because of earlier three decisions in Firm Seth Radha Kishan (Supra) which is also a judgment of Hon’ble three judges of Supreme Court. 6. At this stage Mr. S.S. Sharma, learned Senior Counsel for the petitioner, submits that the plaintiff initially approached a Labour Commissioner but thereafter, did not proceed to continue pursuing the remedy under the Industrial Dispute Act, 1947. The plaintiff has thus exhausted his right to choose the form and under such circumstances, the learned trial court ought to have held the civil suit barred. Under Industrial Dispute Act, a Labour Court or Tribunal will not be deprived of its jurisdiction automatically unless reference is drawn by the appropriate Government under Section 10 of the Act. This will be done only after a failure report is submitted by the Labour Commissioner. It is not the case here that a reference has been drawn up and thereafter, the workman has pursued the process. This will be done only after a failure report is submitted by the Labour Commissioner. It is not the case here that a reference has been drawn up and thereafter, the workman has pursued the process. Merely because workman filed an application before the Labour Commissioner, it does not mean that the dispute will be referred by the Commissioner to the appropriate Government and that appropriate Government also will raise a dispute and refer the same to Labour Court or Tribunal for adjudication. Here neither the dispute has been raised by the authority under the Industrial Dispute Act nor has the appropriate Government raised a reference. This being the position it cannot be said that merely because the workman filed application before the authority, he has forfeited his right to pursue remedy before the Civil Court. The submission of Mr. S.S. Sharma, learned Senior Counsel, therefore, does not appear to have any force. 7. Considering the totality of circumstances, there is no merit in this revision petition and it is accordingly dismissed. The judgment and order passed by the learned trial court is not interfered. 8. No order as to cost.