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2015 DIGILAW 380 (HP)

Cosmo Ferrites Limited v. Rajinder Singh

2015-04-21

RAJIV SHARMA

body2015
JUDGMENT : Justice Rajiv Sharma, J. This petition is instituted against the order dated 3.3.2015 rendered by the Additional District Judge-II, Solan in Civil Miscellaneous Appeal No. 7-FTC/14 of 2010. 2. ?Key facts? necessary for the adjudication of this petition are that respondent-plaintiff (hereinafter referred to as the ?plaintiff? for convenience sake) has filed a suit against the petitioners-defendants (hereinafter referred to as the ?defendants? for convenience sake) under section 38 of Specific Relief Act for decree of permanent injunction restraining the defendants from transferring the plaintiff from Cosmo Ferrites Limited Jabli, Tehsil Kasauli, District Solan and also restraining the defendants from causing any obstruction in entering into the factory premises for attending his job, duty and putting any kind of illegal restriction by themselves through their agents, employees, workers etc. 3. The plaintiff has also moved an application under order 39 rule 1 and 2 read with section 151 of the Code of Civil Procedure. The application was contested by the defendants. Learned Civil Judge (Senior Division) allowed the application vide order dated 23.9.2010 whereby the transfer order dated 26.7.2010 was stayed and the defendants were directed not to restrain the plaintiff to come to his place of work. The defendants feeling aggrieved by the order dated 23.9.2010 filed an appeal before the learned Additional District Judge-II, Solan. He dismissed the same on 3.3.2015. Hence, the present petition. 4. Mr. O.C. Sharma, learned counsel for the defendants; has vehemently argued that the civil court had no jurisdiction to entertain the suit. He has relied upon standing order framed under the Industrial Employment (Standing Orders) Act, 1946. He also contended that the courts below have not taken into consideration the well known principles governing the ad-interim injunction. 5. I have heard Mr. O.C. Sahrma and gone through order dated 23.9.2010 and judgment dated 3.3.2015. 6. The plaintiff was appointed on 12.5.1989. He met with an accident in the year 1992. He has taken treatment from P.G.I. and thereafter from Ludhiana. Employees of the defendant-company had gone on strike with effect from 19.7.2009 to 30.8.2009. FIR No.70/2009 was also registered against the plaintiff. Defendant-company has framed standing order under the Industrial Employment (Standing Orders) Act, 1946. Clause 20 of the Standing Order deals with the transfer of the workman. The Additional District Judge has made elaborate reference to clause 20 of the Standing Order. FIR No.70/2009 was also registered against the plaintiff. Defendant-company has framed standing order under the Industrial Employment (Standing Orders) Act, 1946. Clause 20 of the Standing Order deals with the transfer of the workman. The Additional District Judge has made elaborate reference to clause 20 of the Standing Order. According to clause 20 of the Standing Order, the workman can be transferred according to the exigency of work from one job or department to another or from one station to another or from one establishment to another under the same employer provided that his wages, grade, continuity of service and other conditions of service are not adversely affected by such transfer and where the transfer involves moving from one station to another, such transfer is to take place either with the consent of the workmen where there is a specified provision to this effect in the letter of appointment and provided that reasonable notice is given to such workmen and reasonable joining time is allowed. The plaintiff has been transferred from Jabali, Tehsil Kasauli, District Solan to M/s Sterling Oxide Limited, Works Industrial Area, Sikendrabad, District Buldandshehar, U.P. as Assistant (Clerical). It is not in dispute that Sterling oxide Limited was wound up on 11.7.2013. 7. In the instant case, a notice was issued to the plaintiff on 20.7.2010 informing him that if he did not want to work with them, then his services would be terminated. The plaintiff replied to the notice on 27.7.2010. He brought to the notice of the management that as per medical certificate, he was not capable of performing heavy work and he may be given work as per his capability. The plaintiff has never prayed to be transferred from the present place of posting to Sikendrabad. 8. Mr. O.C. Sharma has vehemently argued that the consent of the plaintiff was obtained. The transfer of the plaintiff was mala fide since he has participated in the strike with effect from 19.7.2009 to 30.8.2009. FIR No.70/2009 was also registered against the plaintiff. The transfer of the plaintiff is also actuated with malice since the workman has been transferred to a distant place without any administrative exigency. The defendants could not be oblivious that plaintiff has suffered injury on four fingers and remained under treatment for a considerable time. FIR No.70/2009 was also registered against the plaintiff. The transfer of the plaintiff is also actuated with malice since the workman has been transferred to a distant place without any administrative exigency. The defendants could not be oblivious that plaintiff has suffered injury on four fingers and remained under treatment for a considerable time. The suit has been instituted under section 38 of the Specific Relief Act on the basis of Standing Order framed under the Industrial Employment (Standing Orders) Act, 1946. 9. Their Lordships of the Hon'ble Supreme Court in The Bombay Union of Journalists and others vs. The Hindu, Bombay and another, AIR 1963 SC 318 have held that a dispute between employer and single workman cannot per se be an industrial dispute, but it may become one if it is taken up by the Union or a number of workmen. Their Lordships have held as under: ?7. The terms of reference by the Government of Bombay under S. 12(2) indicate that the dispute was primarily between "The Hindu" Bombay and the appellant -- a single employee, relating to his individual claim in which the other employees of "The Hindu" Bombay were not directly interested. Their Lordships have held as under: ?7. The terms of reference by the Government of Bombay under S. 12(2) indicate that the dispute was primarily between "The Hindu" Bombay and the appellant -- a single employee, relating to his individual claim in which the other employees of "The Hindu" Bombay were not directly interested. In Central Provinces Transport Services Ltd. v. Raghunath Gopal Patwardhan, 1956 SCR 956 : ((S) AIR SC l04) this Court after setting out the three possible views on the question whether a dispute by an individual workman may be regarded as an industrial dispute within the meaning of S. 2(k) of the Industrial Disputes Act, 1947, observed, "The preponderance of judicial opinion is clearly in favour of the last of the three views stated above (i.e., a dispute between an employer and a single employee cannot per se be an industrial dispute, but it may become one if it is taken up by the Union or a number of workmen and there is considerable reason behind it.) Notwithstanding that the language of S. 2(k) is wide enough to cover a dispute between an employer and a single employee, the scheme of the Industrial Disputes Act does appear to contemplate that the machinery provided therein should be set in motion, to settle only disputes which involve the rights of workmen as a class and that a dispute touching the individual rights of a workman was not intended to be the subject of an adjudication under the Act, when the same had not been taken up by the Union or a number of workmen. This view was reiterated in Newspapers Ltd. v. Slate Industrial Tribunal, U. P. 1957 SCR 754 : ((S) AIR 1957 SC 532 ). Therefore, the applicability of the Industrial Disputes Act to an individual dispute as distinguished from a dispute involving a group of workmen is excluded, unless the workmen as a body or a considerable section of them make common cause with the individual workman. 9. By its constitution the Bombay Union of Journalists is a Union not of employees of one employer, but of all employees in the industry of journalism in Bombay. Support of the cause, by the Union, will not in our judgment convert the individual dispute of one of its members unto an industrial dispute. 9. By its constitution the Bombay Union of Journalists is a Union not of employees of one employer, but of all employees in the industry of journalism in Bombay. Support of the cause, by the Union, will not in our judgment convert the individual dispute of one of its members unto an industrial dispute. The dispute between "The Hindu" Bombay and Salivateeswaran was in respect of alleged wrongful termination of employment; it could acquire the character of an industrial dispute only if it was proved that it was, before it was referred, supported by the Union of the employee of "The Hindu" Bombay or by an appreciable number of its employees. In Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate 1958 SCR 1156 : ( AIR 1958 SC 353 ) this Court held by a majority that the two tests of an industrial dispute as defined by sub-sec. (k) of S. 2 of the Industrial Disputes Act, 1947, must, therefore, be -- (1) the dispute must be a real dispute capable. of being settled by relief given by one party to the other and (2) the person in respect of whom the dispute is raised must be one in whose employment, non-employment, terms of employment, or conditions of labour (as the case may be), the parties to the dispute have a direct or substantial interest, and this must depend on the facts and circumstances of each case. In that case certain employees sought to raise a dispute about a person who was not a workman. In the present case members of the Union who were not workmen of the employer against whom the dispute was sought to be raised, seek by supporting the dispute to convert what is prima facie an individual dispute into an industrial dispute. The principle that the persons who seek to support the cause of a workman must themselves be directly and substantially interested in the dispute in our view applies to this class of case also: persons who are not employees of the same employer cannot be regarded as so interested, that by their support they may convert an individual dispute into an industrial dispute. The mere support to his cause by the Bombay Union of Journalists cannot therefore assist the claim of Salivateswaran so as to convert it into an industrial dispute. 16. The mere support to his cause by the Bombay Union of Journalists cannot therefore assist the claim of Salivateswaran so as to convert it into an industrial dispute. 16. The effect of the support to the cause of Salivateeswaran by the Indian Federation of Working Journalists and the claim founded thereon does not call for any detailed consideration. After the reference was submitted and it was pending hearing before the Tribunal a letter was written by the President of the Indian Federation of Working Journalists to the General Secretary of the Bombay Union of Journalists on April 16, 1959, stating that the Federation had lent support to Salivateeswaran in the writ petition filed by "The Hindu" in the Supreme Court and that the Federation did so as it was a test case. Another letter dated April,17, 1959, was addressed by the General Secretary of the Indian Federation of Working Journalists to the General Secretary, Bombay Union of Journalists, Bombay stating that they had advised Salivateeswaran to file a petition before the Presiding officer of the Industrial Court in Bombay and had also intervened in the Supreme Court, and further that the Federation fully supported all actions taken by the Bombay Union of Journalists to get justice for Salivateeswaran. The Secretary of the Union by letter dated July 9, 1959, wrote to the President and Secretary-General of the Indian Federation of Working Journalists that Salivateeswaran's case was being heard for a week and that Salivateeswaran was to undergo cross-examination on the next day and that Mahatame, the previous Secretary was to give evidence. He further stated "I am of opinion that we must produce some document whereby it will be possible to prove that the Federation had supported Salivateeswaran's case' and requested the Federation to send a document in the form of a minute of a meeting or a letter or a resolution and if there was none such on the record, to pass a fresh resolution supporting the Bombay Union's action regarding Salivateeswaran's case and to send the same by return of post. Taking a clue from this letter, on July 24, 1959, the President of the Federation sent a copy of the resolution alleged to have been adopted by the members of the Working Committee of the Indian Federation of Working Journalists regarding Salivateeswaran's case. Taking a clue from this letter, on July 24, 1959, the President of the Federation sent a copy of the resolution alleged to have been adopted by the members of the Working Committee of the Indian Federation of Working Journalists regarding Salivateeswaran's case. The draft resolution sought to support the case of the Bombay Union of Journalists before the Industrial Tribunal, Bombay, and to "direct the Union to fight the case with all its strength." This resolution is alleged to have been passed by circulation after the commencement of the adjudication proceedings. If the dispute was in its inception an individual dispute and continued to be such till the date of the reference by the Government of Bombay, it could not be converted into an industrial dispute by support subsequent to the reference even of workmen interested in the dispute. We have already held that subsequent withdrawal of support will not take away the jurisdiction of an industrial tribunal. On the same reasoning subsequent support will not convert what was an individual dispute at the time of reference into an industrial dispute. The resolution of the Indian Federation of Working Journalists, assuming that it has any value, would not be sufficient to convert what was an individual dispute into an industrial dispute.? 10. In the instant case, plaintiff's case has not been taken up by the union. 11. So far as the question whether the civil court had no jurisdiction to go into the matter as argued by Mr. O.C. Sharma is concerned, the same no more res integra in view of the judgment rendered by their Lordships of the Hon'ble Supreme Court in Rajashtan State Road Transport Corporation and another versus Bal Mukund Bairwa (2), (2009) 4 SCC 299 . Their Lordships have held as under: ?12. Section 9 of the Code is in enforcement of the fundamental principles of law laid down in the maxim Ubi jus Ibi remedium. A litigant, thus, having a grievance of a civil nature has a right to institute a civil suit in a competent civil court unless its cognizance is either expressly or impliedly barred by any statute. Ex facie, in terms of Section 9 of the Code, civil courts can try all suits, unless bared by statute, either expressly or by necessary implication. 13. Ex facie, in terms of Section 9 of the Code, civil courts can try all suits, unless bared by statute, either expressly or by necessary implication. 13. The civil court, furthermore, being a court of plenary jurisdiction has the jurisdiction to determine its jurisdiction upon considering the averments made in the plaint but that would not mean that the plaintiff can circumvent the provisions of law in order to invest jurisdiction on the civil court although it otherwise may not possess. For the said purpose, the court in given cases would be entitled to decide the question of its own jurisdiction upon arriving at a finding in regard to the existence of the jurisdictional fact. 14. It is also well settled that there is a presumption that a civil court will have jurisdiction and the ouster of civil court's jurisdiction is not to be readily inferred. A person taking a plea contra must establish the same. Even in a case where jurisdiction of a civil court is sought to be barred under a statute, the civil court can exercise its jurisdiction in respect of some matters particularly when the statutory authority or Tribunal acts without jurisdiction. 26. Applying the said principles to the fact of the cases wherein the plaintiffs alleged that the enquiries were conducted in violation of the Standing Orders whereas the stand taken by the Corporation was that the requirements contained in the Standing Orders were complied with, the Bench, however, noticed that no Regulation had been framed by the Corporation in terms of Section 45 of the Act insofar as the employees answering the description of `workman' as defined in Section 2(s) of the 1947 Act are concerned. It appears that therein no dispute was raised that the provisions of the Standing Orders were applicable. The question, therefore, which inter alia arose for consideration was as to whether in holding the departmental proceeding the provisions of the Certified Standing Orders were violated or not. While holding that Civil Court's jurisdiction to entertain the suit was bared, it was held: "37. It is directed that the principles enunciated in this judgment shall apply to all pending matters except where decrees have been passed by the trial court and the matters are pending in appeal or second appeal, as the case may be. While holding that Civil Court's jurisdiction to entertain the suit was bared, it was held: "37. It is directed that the principles enunciated in this judgment shall apply to all pending matters except where decrees have been passed by the trial court and the matters are pending in appeal or second appeal, as the case may be. All suits pending in the trial court shall be governed by the principles enunciated herein -- as also the suits and proceedings to be instituted hereinafter." With greatest of respect to the learned judges, if a statute while creating rights and obligations did not constitute a forum for enforcing the same, plenary jurisdiction of the civil court in view of Premier Automobiles Ltd.(supra) could not be held to have been taken away. There was also no occasion to extend the scope of the dicta laid down therein. Certified Standing Orders lay down the terms and conditions of service. It did not create any new right such as Section 25F, 25G or 25H of the Industrial Disputes Act, 1947. Any new right created under a statute would ordinarily be a right in favour of an employee over and above the general law. Let us, however, proceed on the basis that the dicta laid down therein is correct. 33. A dispute arising in between an employer and employee may or may not be an industrial dispute. The dispute may be in relation to or arising out of a fundamental right of the employee, or his right under a Parliamentary Act and the Regulations framed thereunder, and/or a right arising under the provisions of the Industrial Disputes Act or the sister laws and may relate to same or similar rights or different rights, or even may be based on common law right or contractual right. The question in regard to the jurisdiction of the civil court must, therefore, be addressed having regard to the fact as to which rights or obligations are sought to be enforced for the purpose of invoking or excluding the jurisdiction of a civil court.? 12. There is a prima facie case in favour of the plaintiff and balance of convenience also lies in his favour. He would have suffered irreparable loss and injury if the transfer order was not stayed. 13. Accordingly, there is no merit in the petition and the same is dismissed. 12. There is a prima facie case in favour of the plaintiff and balance of convenience also lies in his favour. He would have suffered irreparable loss and injury if the transfer order was not stayed. 13. Accordingly, there is no merit in the petition and the same is dismissed. Pending application, if any, also stands disposed of. No costs.