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Gujarat High Court · body

2020 DIGILAW 975 (GUJ)

Shankarbhai Manjibhai Patel v. State of Gujarat

2020-12-17

A.C.RAO

body2020
ORDER : 1. By way of present petition, the petitioner has challenged the perverse and arbitrary orders dated 30.05.2015 and 20.09.2019 passed by the respondent authorities, not granting second higher pay scale. 2. The short facts leading to the present petitioner are that the petitioner was appointed with the office of the respondent authority on 26.12.1978 as Additional Assistance Engineer and retired from the same post on 30.06.2015. During the pendency of his service in the year 2001, a departmental inquiry was initiated against the petitioner for negligence of his duties and vide order dated 26.08.2005, passed by the respondent No. 1, the petitioner was exonerated from one of the three charges and the respondent authority has levied a penalty of reduction to lower pay scale for 2 years without future effect. 3. It is the case of the petitioner that the petitioner was eligible to get the second higher pay scale from the year 2002 after completion of 24 years in the service. Thereafter, the petitioner had made several requests so as to get the benefit. However, vide communication dated 30.05.2015 the respondent No. 1 herein had rejected the application of the petitioner for granting second higher pay scale on the ground that as per the Government Resolution dated 31.03.2005, the petitioner was punished with a major penalty and therefore, he is not eligible for higher pay scale. According to the petitioner, he had served for 13 years after being eligible for second higher pay scale. 4. At the time of arguments, the learned advocate for the petitioner has contended that the punishment inflicted upon the petitioner was a minor penalty and it is not a major penalty. Thereafter, the petitioner had made representation on 12.10.2017 and thereafter, the petitioner had preferred a Special Civil Application No. 13028 of 2019. The said petition was disposed of as the representation was already decided on 20.09.2019, so it had become infructuous. 4.1 Thereafter, vide communication dated 20.09.2019, again the request of the petitioner of rethinking on the penalty imposed upon the petitioner and granting second higher pay scale was rejected by the respondent No. 1. 4.2 It is contended that in case of other similarly situated employee i.e. one Shri Sureshchandra Badanbsinh Yadav, the benefit of second higher pay scale was granted by this Court vide order dated 10.10.2017 passed in Special Civil Application No. 7111 of 2015. 4.2 It is contended that in case of other similarly situated employee i.e. one Shri Sureshchandra Badanbsinh Yadav, the benefit of second higher pay scale was granted by this Court vide order dated 10.10.2017 passed in Special Civil Application No. 7111 of 2015. Therefore, the same order is required to be passed in this petition. It is prayed that the writ of mandamus may be issued quashing and setting aside the orders dated 30.05.2015 and 20.09.2019 and the respondent authorities may be directed to give benefit of second higher pay scale and other consequential benefits to the petitioner. 4.3 It is contended by the learned advocate for the petitioner that this petition is maintainable because it is against the government and the authority has relied on the Government Resolution and therefore, civil court cannot pass order. It is contended that the civil suit cannot be filed against the order of the Government and therefore, this writ petition is maintainable. 5. This petition is resisted by the learned AGP and contended that there is an alternative remedy by way of filing a civil suit and therefore, this petition is required to be rejected. 5.1 The learned AGP has relied on the judgment of this Court passed in the Second Appeal No. 196 of 2018 with Civil Application No. 1 of 2018 rendered in case of Paschim Gujarat Vij-Company Limited through Executive Engineer (O and M) vs. Jayeshkumar Kanaksinh Jadeja and dated 09.08.2018, wherein, in para-21 to 37, it is held as under: “21. The second question that falls for my consideration is that even assuming for the moment that the original plaintiff was a workman whether the Civil Court had the jurisdiction to entertain the suit and grant the relief of declaration as prayed for? 22. In this context, let me first refer to Section 9 of the C.P.C. which says that courts to try all suits unless their cognizance is either expressly or impliedly barred. There is one broad aspect as to whether Civil Court has got jurisdiction at all in Industrial matters. The land mark judgment in this aspect is that of the Apex Court reported in Premier Automobiles Limited vs. Kamalakar Shantharam Wadke, 1976 (1) LLN : AIR 1975 SC 2238 . In the said judgment, the Supreme Court has set out the principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute. The land mark judgment in this aspect is that of the Apex Court reported in Premier Automobiles Limited vs. Kamalakar Shantharam Wadke, 1976 (1) LLN : AIR 1975 SC 2238 . In the said judgment, the Supreme Court has set out the principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute. This is one of the numerous issues that used to invariably crop up in a Civil Court. The issue is about an industrial dispute. To put it in simple terms, an industrial dispute as defined under the Industrial Disputes Act, 1947 is a dispute or difference of opinion between an employer and employee in respect of their conditions of working. Therefore, in respect of such an industrial dispute, when a conflict arises, how far a Civil Court can interfere in such matters is the question. The Supreme Court has set out four broad principles: “(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 Chap. V.A. then the remedy for its enforcement is either S.33C or the raising of an industrial dispute, as the case may be.” 23. For instance if the heir of a deceased employee or some other person makes a rival claim in respect of the terminal benefits payable to a deceased employee, then though the issue concerns the concerned employee as against the employer, still, the core issue of the dispute is not the one arising under the Industrial Disputes Act. For instance if the heir of a deceased employee or some other person makes a rival claim in respect of the terminal benefits payable to a deceased employee, then though the issue concerns the concerned employee as against the employer, still, the core issue of the dispute is not the one arising under the Industrial Disputes Act. In such cases, the remedy will be by way of a Civil Suit and the Civil Court will have ample jurisdiction to deal with that issue. 24. Similarly there may be cases, where the issue may fall within the category of an Industrial Dispute, arising out of the right or liability under the general law or common law and under the Industrial Disputes Act. For instance, one may dispute the amount payable by the L.I.C. covered by the provisions of the general law or any other common law, yet, the issue may still relate to an employee, the Insurance Company and the employer by virtue of some tripartite agreement. In such a situation, the jurisdiction of the Civil Court may be the alternative. Because, the employee can validly raise an Industrial Dispute under the provisions of the Industrial Disputes Act to get his grievances redressed or he can resort to the Civil Court remedy. 25. On the other hand, if the issue squarely falls within the ambit of the provisions of the Industrial Disputes Act, enforceable under that Act, then the remedy will be only under the said Act and Civil Court jurisdiction will be completely ousted. For example, under the Industrial Disputes Act, the justification of a strike or lockout or lay off can be worked out only through the machinery provided under the Industrial Disputes Act. In view of the said setup, the Jurisdiction of the Civil Court is completely taken way. The Judgment of the Supreme Court in Premier Automobiles case has been subsequently dealt with still more elaborately in the Rajasthan Road Transport Corporation Case reported in The Rajasthan State Road Transport Corporation and Another vs. Krishnakanth, 1995 (2) LLJ 728 : (1995) 5 SCC 75 . Reference can be had to paragraphs 22, 23, 25 and 26. A reading of the above paragraphs gives a clear picture as to what extent and in what cases the Civil Court can exercise its jurisdiction in respect of the Industrial Matters. Reference can be had to paragraphs 22, 23, 25 and 26. A reading of the above paragraphs gives a clear picture as to what extent and in what cases the Civil Court can exercise its jurisdiction in respect of the Industrial Matters. The observations in para-25 are relevant: “25........This statement cannot be understood as saying that no industrial dispute can ever be entertained by or adjudicated upon by the Civil Courts. Such an understanding would not only make the statement of law in principle No. 2 wholly meaningless but would also run counter to the well established principles on the subject.........It is therefore always in the interest of the workmen that disputes concerning them are adjudicated in the forums created by the Act and not in a Civil Court. That is the entire policy underlying the vast array of enactments concerning workmen. This legislative policy and intendment should necessarily weigh with the Courts in interpreting these enactments and the disputes arising under them.” 26. Ultimately the Supreme Court summarised the principles in paragraph 32. In this judgment, seven principles have been evolved. In paragraph 34, the Supreme Court also stated that the principles enunciated therein shall apply to all pending matters and also the suits and proceedings to be instituted hereafter. The seven principles evolved are as follows: (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. (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 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. (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 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 Orders) 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. (6) The certified Standing Orders framed under and in accordance with the Industrial Employment (Standing Orders) 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, a mechanism which is speedy, inexpensive, informal and unencumbered 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. 27. Subsequently, a two Judge Bench of the Supreme Court in Rajasthan SRTC vs. Zakir Hussain, (2005) 7 SCC 447 relied upon Premier Automobiles Judgment (cited supra) and Rajasthan SRTC Judgment reported in (1995) 5 SCC 75 . The four principles laid down in the Premier Automobiles case and the seven principles subsequently expanded in Rajasthan SRTC case was referred to in detail and the Hon'ble Supreme Court highlighted the well known principle that whereby an act creates an obligation and enforces the purpose in a specified manner, the purpose cannot be enforced in any other manner. In the said judgment, the Hon'ble Supreme Court was dealing with the case of a Conductor who was on daily wages on probation for a period of two years and whose service came to be terminated on the ground of unsatisfactory performance. The challenge to the order of termination was by way of a suit for declaration that the termination order was illegal, against the principles of Natural Justice and was therefore liable to be set aside. It was also claimed that the employee was entitled to continuity in service without any break. The Supreme Court ultimately held that the employee ought to have worked out his remedies under the Industrial Disputes Act and the Civil Court jurisdiction could not have been invoked. 28. It was also claimed that the employee was entitled to continuity in service without any break. The Supreme Court ultimately held that the employee ought to have worked out his remedies under the Industrial Disputes Act and the Civil Court jurisdiction could not have been invoked. 28. Subsequently, a two Judge Bench of the Supreme Court in the decision reported in Rajasthan SRTC vs. Mohar Singh, (2008) 5 SCC 542 dealt with a case of dismissal. The employee approached the Civil Court for setting aside the order of dismissal. The Trial Court decreed the suit. The first appeal was also dismissed by the learned Additional District and Sessions Judge. The High Court also dismissed the second appeal holding that there was no substantial question of law involved. 29. In Mohar Singh's (supra) the present case, even after referring to the Premier Automobiles Judgment and the two earlier decisions in Rajasthan SRTC reported in (1995) 5 SCC 75 as well as in (2005) 7 SCC 447 , the Supreme Court declined to interfere with the judgment impugned before it. This time the Supreme Court leaned in favour of exercising the right of an employee through the Civil Court for working out his remedies by stating as under in paragraphs 15, 19 and 29: 15. Civil Court may have a limited jurisdiction in service matters but it cannot be said to have no jurisdiction at all to entertain a suit. It may not be entitled to sit in appeal over the order passed in the disciplinary proceedings or on the quantum of punishment imposed. It may not in a given case direct reinstatement in service having regard to Section 14(1) (b) of the Specific Relief Act, 1963 but, it is a trite law that where the right is claimed by the plaintiff in terms of common law or under a statute other than the one which created a new right for the first time and when a forum has also been created for enforcing the said right, the Civil Court shall also have jurisdiction to entertain a suit where the plaintiff claim benefit of a fundamental right as adumbrated under Article 14 of the Constitution of India or mandatory provisions of statute or statutory rules governing the terms and conditions of service. 19. 19. We must also notice the distinction between a right which is conferred upon an employer under a statute for the first time and also providing for a remedy and the one which is created to determine the cases under the common law right. Only in a case of the former, the Civil Court's jurisdiction may be held to be barred by necessary implication. 29. The decisions referred to hereinbefore clearly brings about a distinction which cannot be lost sight of. If a right is claimed under the Industrial Disputes Act or the sister laws, the jurisdiction of the Civil Court would be barred, but if no such right is claimed, civil court will have jurisdiction. 30. The issue was further dealt with in an elaborate manner by a three Judge Bench of the Supreme Court in Rajasthan SRTC vs. Bal Mukund Bairwa, (2009) 4 SCC 299 . The earlier decisions of the Rajasthan SRTC judgments reported in (1995) 5 SCC 75 , (2005) 7 SCC 447 and (2008) 5 SCC 548, were all examined in detail by keeping the principles laid down in Premier Automobiles judgment in the forefront. 31. In fact before entering into the issue concerned in that case, the Supreme Court noted a reference made to it by the Division Bench in the order dated 22.11.2007 for the resolution of a purported conflict in three Judges Bench judgment of the Supreme Court in Rajasthan SRTC case viz. (1995) 5 SCC 75 and (2006) 1 SCC 59 . The purported conflict as noted in the said judgment centres around the jurisdiction of the Civil Court to entertain the suits questioning the order of termination passed by the SRTC against its employees. 32. The Supreme Court in the (2009) 4 SCC 299 judgment referred to Section 9 of the Code of Civil Procedure which confirms the jurisdiction of the Civil Court to try all suits of a civil nature excepting the suits of which their cognizance is either expressly or impliedly barred. The Supreme Court also took notice of the scheme of the Industrial Disputes Act, 1947 in regard to the procedure prescribed for the resolution of the disputes relating to the employees on the one side and the employers on the other side. The view taken by the Hon'ble Supreme Court is as under in paragraph 20: 20. The Supreme Court also took notice of the scheme of the Industrial Disputes Act, 1947 in regard to the procedure prescribed for the resolution of the disputes relating to the employees on the one side and the employers on the other side. The view taken by the Hon'ble Supreme Court is as under in paragraph 20: 20. Before us, however, the statutory Regulations framed by the appellant Corporation under Section 45 of the Act had been placed. We do not find that any distinction has been made in regard to the matters relating to holding of the departmental proceedings against an employee for commission of a misconduct vis-a-vis the industrial workers. The question as to whether in a case of this nature where violation is alleged as regards compliance of principles of natural justice either on common law principles or in terms of the statutory Regulations framed by the appellant Corporation, which is a fundamental right in terms of Article 14 of the Constitution of India, a civil suit will be maintainable or not, thus, have not been taken into consideration in any of the aforementioned decisions. The legal principles, namely, presumption in regard to the jurisdiction of the Civil Court and interpretation of a statute involving plenary jurisdiction of a civil court had also not been taken into consideration. 33. Further it proceeded to hold as to under what circumstances the Civil Court jurisdiction can be invoked. A reference to paragraphs 21, 23 and part of para-24 can be usefully referred, which are as follows: 21. 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. 23. 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. 23. 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 Order 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 State Road Transport Corporation and Others vs. 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 fact of each case. If the infringement of Standing Order 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. 24. When there is a doubt as to whether civil court has jurisdiction to try a suit or not, the courts shall raise a presumption that it has such jurisdiction. 34. In Dhulabhai vs. State of M.P. AIR 1969 SC 78 , the Supreme Court held that if a statute creates a special right or liability and provides procedure for the determination therefor, an aggrieved party should call in aid the provisions of the statute and he cannot invoke the jurisdiction of any other forum. 34. In Dhulabhai vs. State of M.P. AIR 1969 SC 78 , the Supreme Court held that if a statute creates a special right or liability and provides procedure for the determination therefor, an aggrieved party should call in aid the provisions of the statute and he cannot invoke the jurisdiction of any other forum. The condition No. 2 of Dhulabhais case (supra) reads as under: Where there is an express for bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the later case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not. 35. The position of law is made more clear by the Supreme Court in Rajasthan State Road Transport Corporation and Others vs. Deen Dayal Sharma, (2010) 6 SCC 697 . In the said case, the jurisdiction of the Civil Court to order reinstatement of the respondent and grant of financial benefits of service to him came to be questioned. The respondent was appointed as a conductor by the Rajasthan State Road Corporation. He came to be dismissed from service. His departmental appeal also came to be dismissed. He then preferred a civil suit in the Court of Additional Munsif and Judicial Magistrate, Jaipur city praying that the order of dismissal be declared unlawful, illegal, void and ineffective being contrary to the Standing Orders as no departmental inquiry was held and he be held to be entitled to all benefits as if he continued in service. He then preferred a civil suit in the Court of Additional Munsif and Judicial Magistrate, Jaipur city praying that the order of dismissal be declared unlawful, illegal, void and ineffective being contrary to the Standing Orders as no departmental inquiry was held and he be held to be entitled to all benefits as if he continued in service. The Trial Judge, after recoding the evidence of the respondent, overruled the objection raised by the appellant about the jurisdiction of the Civil Court and vide judgment and decree declared the order of dismissal illegal and ordered reinstatement of the respondent and other financial benefits to him. The Corporation challenged the judgment and decree passed by the Trial Court in appeal before the District Judge, but that was dismissed on the ground of delay. The Second Appeal preferred by the Corporation before the High Court came to be dismissed and held that the concurrent findings of fact recorded by Courts below warranted no interference. Thereafter, the matter was carried before the Supreme Court. The Supreme Court, while allowing the appeal filed by the Corporation held as under: “7. In The Premier Automobiles Ltd. vs. Kamr Shantaram Wadke of Bombay and Others, (1976) 1 SCC 496 : AIR 1975 SC 2238 , a three Judge Bench of this Court considered Section 9 of the Civil Procedure Code, 1908, the provisions of Industrial Disputes Act, 1947 and large number of decisions by this Court, as well as English and other Indian Courts and summed up the principles applicable to the jurisdiction of the civil court in relation to an industrial dispute thus: “23..... (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. (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.” In paragraph 24 of the Report, this Court further clarified: “24. We may, however, in relation to principle No. 2 stated above hasten to add that there will hardly be a dispute which will be 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 un-sponsored 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 stated above.” 8. In the case of Rajasthan State Road Transport Corporation and Another vs. Krishna Kant and Others, (1995) 5 SCC 75 : AIR 1995 SC 1715 : 1995 AIR SCW 2683, this Court was concerned with the question, where the dispute between the employer and the workmen involves the recognition, application or enforcement of the certified Standing Orders, whether jurisdiction of civil court to entertain a suit with respect to such dispute is barred. A three-Judge Bench extensively considered the nature of the Standing Orders; the scope of ‘Industrial Dispute’ and a long line of cases of this Court, including Premier Automobiles AIR 1975 SC 2238 and summarized the legal position as follows: “(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 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. (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. 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 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 Orders) 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, a mechanism which is speedy, inexpensive, informal and unencumbered 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.” 9. In Rajasthan State Road Transport Corporation and Others vs. Zakir Hussain, (2005) 7 SCC 447 , this Court held that the employees of the State Road Transport Corporation are not civil servants, and they are not entitled to protection of Article 311(2) of the Constitution. In Rajasthan State Road Transport Corporation and Others vs. Zakir Hussain, (2005) 7 SCC 447 , this Court held that the employees of the State Road Transport Corporation are not civil servants, and they are not entitled to protection of Article 311(2) of the Constitution. While dealing with the question of jurisdiction of civil court in the matters of industrial dispute, this Court applied the principles enunciated in Krishna Kant, AIR 1995 SC 1715 : 1995 AIR SCW 2683, in the following words: “35.....This Court has very explicitly summarised the principles flowing from the discussion in the judgment in para-35 and applying the above principles this Court has categorically held that the suits filed by the employees in those appeals were not maintainable in law...... 36. For the foregoing reasons, we hold that the respondent ought to have approached the remedies provided under the Industrial Disputes Act. He has miserably failed to do so but approached the civil court, which on the facts and circumstances of the case has no jurisdiction to entertain and try the suit.” 10. A three-Judge Bench of this Court in the case of Rajasthan SRTC and Others vs. Khadarmal, again considered the question regarding jurisdiction of civil court in the matter of termination of service of a probationer and following the judgments of this Court in Zakir Hussain (2005) 7 SCC 447 and Krishna Kant (1995) 5 SSC 75, held: “6. In our view, as the civil court had no jurisdiction, the decrees which were passed have no force of law. They are accordingly set aside. In our view, there can be no direction to reinstate or to continue reinstatement....” 11. It appears that in the case of Rajasthan State Road Transport Corporation and Another vs. Bal Mukund Bairwa, (2007) 14 SCC 41 : AIR 2009 SC (Supp) 1857, a two-Judge Bench of this Court noticed some conflict in the judgments of this Court in Krishna Kant AIR 1995 SC 1715 : 1995 AIR SCW 2683 and Khadarmal (2006) 1 SCC 59 and accordingly, referred the matter to a larger Bench. A threeJudge Bench of this Court in its decision titled Rajasthan State Road Transport Corporation and Another vs. Bal Mukund Bairwa, (2009) 4 SCC 299 : 2009 AIR SCW 2566, revisited the issue with regard to jurisdiction of civil court to entertain suits questioning the orders of termination and held as follows: “36. A threeJudge Bench of this Court in its decision titled Rajasthan State Road Transport Corporation and Another vs. Bal Mukund Bairwa, (2009) 4 SCC 299 : 2009 AIR SCW 2566, revisited the issue with regard to jurisdiction of civil court to entertain suits questioning the orders of termination and held as follows: “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 vs. Mohar Singh, (2008) 5 SCC 542 : AIR 2008 SC 2553 : 2008 AIR SCW 3567. 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. 38. Where the relationship between the parties as employer and employee is contractual, the right to enforce the contract of service depending on personal volition of an employer is prohibited in terms of Section 14(1)(b) of the Specific Relief Act, 1963. 38. Where the relationship between the parties as employer and employee is contractual, the right to enforce the contract of service depending on personal volition of an employer is prohibited in terms of Section 14(1)(b) of the Specific Relief Act, 1963. It has, however, four exceptions, namely, (1) when an employee enjoys a status I.e. his conditions of service are governed by the rules framed under the proviso appended to Article 309 of the Constitution of India or a statute and would otherwise be governed by Article 311(2) of the Constitution of India; (2) where the conditions of service are governed by statute or statutory regulation and in the event mandatory provisions thereof have been breached; (3) when the service of the employee is otherwise protected by a statute and (4) where a right is claimed under the Industrial Disputes Act or sister laws, termination of service having been effected in breach of the provisions thereof. 39. The appellant Corporation is bound to comply with the mandatory provisions of the statute or the regulations framed under it. A subordinate legislation when validly framed becomes a part of the Act. It is also bound to follow the principles of natural justice. In the event it is found that the action on the part of the State is violative of the constitutional provisions or the mandatory requirements of a statute or statutory rules, the civil court would have the jurisdiction to direct reinstatement with full back wages.” 12. The learned counsel for the respondent submitted that controversy with regard to the jurisdiction of civil court in entertaining a suit wherein the order of termination is challenged on the ground of violation of principles of natural justice has been set at rest in Bal Mukund Bairwa, 2009 AIR SCW 2566. She heavily relied upon paragraph 39 of the report quoted above and contended that civil court rightly entertained, tried and decreed the suit in the present matter. 13. We shall first notice the case set up by the respondent in the plaint. It was averred : “(kha) That defendants did not hold any departmental enquiry against the plaintiff in respect of the said remark and nor in this regard the plaintiff was accorded any opportunity of defence and hearing. The plaintiff has been dismissed from service on the basis of the said false remark without according him the opportunity of defence and hearing. The plaintiff has been dismissed from service on the basis of the said false remark without according him the opportunity of defence and hearing. As per section 35 of Standing Orders if there is any allegation of misconduct against any employee then holding departmental enquiry against him is necessary and thereafter on proving the charges against him he may be punished but in the instant case Defendants did not hold any departmental enquiry for the said false remark put against the Plaintiff and nor the plaintiff was accorded opportunity of defence and hearing and order of dismissal of the plaintiff from service has been passed which being contrary to Section 35 of Standing Orders and principles of natural justice is liable to be quashed. (ga) That the order of dismissal of service of the Plaintiff is of Penal nature. In the order of dismissal of service issued against the plaintiff the plaintiff's service being not satisfactory and breach of the terms and conditions of appointment due to which he has been dismissed from service which is a blot on the character of the Plaintiff. Which of the conduct has been breached by the Plaintiff is not clear from the order of dismissal of service of Plaintiff. In this regard any departmental enquiry was not held against the Plaintiff and before passing the dismissal order, the plaintiff was not accorded opportunity of defence and hearing which being contrary to law and Section 35 of Standing orders is liable to be quashed.” 14. The case of the respondent as set up in the plaint, therefore, is that in the absence of departmental enquiry as contemplated in Standing Orders, the order of dismissal is bad in law. It is true that respondent pleaded that he has been dismissed from service without affording any opportunity of defence and hearing and in breach of principles of natural justice but the said plea has to be understood in the backdrop of his pleading that the dismissal order has been passed contrary to Standing Orders without holding any departmental enquiry. 15. The legal position that Standing Orders have no statutory force and are not in the nature of delegated/subordinate legislation is clearly stated by this Court in Krishna Kant, AIR 1995 SC 1715 : 1995 AIR SCW 2683. 15. The legal position that Standing Orders have no statutory force and are not in the nature of delegated/subordinate legislation is clearly stated by this Court in Krishna Kant, AIR 1995 SC 1715 : 1995 AIR SCW 2683. In that case (Krishna Kant), this Court while summarizing the legal principles in paragraph 35(6) stated that the certified Standing Orders framed under and in accordance with the Industrial Employment (Standing Orders) 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' and any violation of these Standing Orders entitles an employee to appropriate relief either before the forum created by the Industrial Disputes Act or the civil court where recourse to civil court is open according to the principles indicated therein. 16. In Bal Mukund Bairwa, 2009 AIR SCW 2566, 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, nature of right sought to be enforced is decisive in determining whether the jurisdiction of civil court is excluded or not. 17. In the instant case, the respondent who hardly served for three months, has asserted his right that the departmental enquiry as contemplated under the Standing Orders, ought to have been held before issuing the order of dismissal and in absence thereof such order was liable to be quashed. Such right, if available, could have been enforced by the respondent only by raising an industrial dispute and not in the civil suit. In the circumstances, it has to be held that civil court had no jurisdiction to entertain and try the suit filed by the respondent. 18. In the result, appeal is allowed and impugned order of the High Court and judgments of the courts below are set aside. No order as to costs.” 36. The principles discernible from the decision of the Supreme Court referred to above may be summarised as under: (1) The nature of right sought to be enforced is decisive in determining whether the jurisdiction of Civil Court is excluded or not. No order as to costs.” 36. The principles discernible from the decision of the Supreme Court referred to above may be summarised as under: (1) The nature of right sought to be enforced is decisive in determining whether the jurisdiction of Civil Court is excluded or not. (2) If it is the case of the employee that he has been dismissed from service or has been made to retire from service contrary to the Standing Orders, then any right in that regard, if available, can be enforced only by raising an industrial dispute and not in the civil suit. 37. In the case on hand, the case of the plaintiff is that he being an Executive Engineer falling within the definition of “workman” under the Act, 1947, is entitled to remain in service upto 60 years of age and therefore, the defendant could not have made him to retire at the age of 58. To put it in other words, what is complained is the violation of the Standing Orders framed by the defendant company. In such circumstances, the Civil Court could not have adjudicated the suit as it had no jurisdiction. The plaintiff is not complaining of any violation of principles of common law or constitutional provisions or on other grounds. If that would have been so, the Civil Court's jurisdiction may not be held to be barred.” 5.2 Relying on the said, it is contended that under Section 9 of the CPC, civil court has jurisdiction to try the dispute and the petitioner has alternative remedy and therefore, the writ of mandamus is not maintainable. It is vehemently submitted that the efficacious remedy is available with the civil court. It is contended that the High Court is flooded with the service matters which could ordinarily be tried by the civil court and under the circumstances, this petition requires to be dismissed as the alternative remedy is available to the petitioner. 6. It is contended by the learned advocate for the petitioner that the petitioner is an employee appointed by the State Government, therefore, the Civil Services Tribunal has no jurisdiction. I agree with the same, however, on inquiring whether the jurisdiction of the civil court is barred or not, the learned advocate for the petitioner has not put his finger on any of the provisions which bars the jurisdiction of the civil court. 7. I agree with the same, however, on inquiring whether the jurisdiction of the civil court is barred or not, the learned advocate for the petitioner has not put his finger on any of the provisions which bars the jurisdiction of the civil court. 7. On the contrary, it was submitted that many matters are admitted by the High Court and therefore, this matter is also required to be admitted. 8. After considering the rival submissions and considering the judgment of this Court in case of Harijan (Parangi) Neetaben Mevabhai (Supra), it appears that the question was not considered as to whether the writ of mandamus is maintainable or not. Therefore, the said would not be applicable to the facts of the present case. In case of Tasleema Jan (Supra) again the question about the maintainability of the writ petition qua jurisdiction of civil court was not considered. In case of Ujwala Yuvraj Naarkhede (Supra) the appeal was admitted on the ground that the court had not assigned any reason therefore, there is no binding ratio but the judgment cited by the learned advocate for the petitioner is squarely applicable to the facts of the present case and I am in complete agreement with the submissions made by the learned AGP. This question can be resolved by the civil court. The learned advocate for the petitioner has not been able to point out any provision which directly or impliedly barred the jurisdiction of the civil court. Further, the Apex Court has considered the fact that when there is an alternative remedy available, the writ of mandamus cannot be issued. 9. The issues relating to entertaining the writ petitions when alternative remedy is available, were examined by the Apex Court in several cases and recently in the case between State of Himachal Pradesh and Others vs. M/s Gujarat Ambuja Cement Ltd. and Another, 2005 (6) SCC 499 . Except for a period when Article 226 was amended by the Constitution (42nd Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy, it is within the jurisdiction of discretion of the High Court to grant relief under Article 226 of the Constitution. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy, it is within the jurisdiction of discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case. Normally, the High Court should not interfere, if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided, the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction. Constitution Benches of Supreme Court in case between K.S. Rashid and Sons vs. Income Tax Investigation Commission and Others, AIR 1954 SC 207 , Sangram Singh vs. Election Tribunal, Kotah and Others, AIR 1955 SC 425 , Union of India vs. T.R. Varma, AIR 1957 SC 882 , State of U.P. and Others vs. Mohammad Nooh, AIR 1958 SC 86 and M/s K.S. Venkataraman and Co. (P) Ltd. vs. State of Madras, AIR 1966 SC 1089 , held that Article 226 of the Constitution confers on all the High Courts a very wide power in the matter of issuing writs. However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted. 9.1 Another Constitution Bench of the Supreme Court in State of Madhya Pradesh and Another vs. Bhailal Bhai, AIR 1964 SC 1006 , held that the remedy provided in a writ jurisdiction is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defence legitimately open in such actions. The power to give relief under Article 226 of the Constitution is a discretionary power. The power to give relief under Article 226 of the Constitution is a discretionary power. Similar view has been reiterated in N.T. Veluswami Thevar vs. G. Raja Nainar and Others, AIR 1959 SC 422 , Municipal Council, Khurai and Another vs. Kamal Kumar and Another, AIR 1965 SC 1321 , Siliguri Municipality and Others vs. Amalendu Das and Others, AIR 1984 SC 653 , S.T. Muthusami vs. K. Natarajan and Others, AIR 1988 SC 616 , R.S.R.T.C. and Another vs. Krishna Kant and Others, AIR 1995 SC 1715 , Kerala State Electricity Board and Another vs. Kurien E. Kalathil and Others, AIR 2000 SC 2573 , A. Venkatasubbiah Naidu vs. S. Chellappan and Others, 2000 (7) SCC 695 and L.L. Sudhakar Reddy and Others vs. State of Andhra Pradesh and Others, 2001 (6) SCC 634 , Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Another vs. State of Maharashtra and Others, 2001 (8) SCC 509 , Pratap Singh and Another vs. State of Haryana, 2002 (7) SCC 484 and G.K.N. Driveshafts (India) Ltd. vs. Income Tax Officer and Others, 2003 (1) SCC 72 . 9.2 In G. Veerappa Pillai vs. Raman and Raman Ltd. AIR 1952 SC 192 , Assistant Collector of Central Excise vs. Dunlop India Ltd. AIR 1985 SC 330 , Ramendra Kishore Biswas vs. State of Tripura, AIR 1999 SC 294 , Shivgonda Anna Patil and Others vs. State of Maharashtra and Others, AIR 1999 SC 22 81 , C.A. Abraham vs. I.T.O. Kottayam and Others, AIR 1961 SC 609 , Titaghur Paper Mills Co. Ltd. vs. State of Orissa and Another, AIR 1983 SC 603 , H.B. Gandhi vs. M/s Gopinath and Sons, 1992 (Supp) 2 SCC 312, Whirlpool Corporation vs. Registrar of Trade Marks and Others, AIR 1999 SC 22 , Tin Plate Co. of India Ltd. vs. State of Bihar and Others, AIR 1999 SC 74 , Sheela Devi vs. Jaspal Singh, 1999 (1) SCC 209 and Punjab National Bank vs. O.C. Krishnan and Others, 2001 (6) SCC 569 , the Supreme Court held that where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction. 9.3 If, as was noted in Ram and Shyam Co. 9.3 If, as was noted in Ram and Shyam Co. vs. State of Haryana and Others, AIR 1985 SC 1147 , the appeal is from “Caeser to Caeser's wife” the existence of alternative remedy would be a mirage and an exercise in futility. There are two well recognized exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra-vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. The above position was recently highlighted in U.P. State Spinning Co. Ltd. vs. R.S. Pandey and Another, (2005) 8 SCC 264 . This is not a case where no factual adjudication is necessary. 9.4 In Lekhraj Sathramdas Lalvani vs. Deputy Custodian-cum-Managing Officer, Bombay, AIR 1966 SC 334 to return the following finding: “25A. The primary scope and function of writ of mandamus has been pithily expressed in the phrase that this writ is issued to command and execute and not to inquire and adjudicate. It is not to establish a legal right but to enforce one. It is only where the legal public duty is clear, unqualified and specific that a writ of mandamus can be truly claimed. It is not to be granted where the claim of the petitioner has, in fact, to be first established and adjudicated upon before it can be enforced.” 9.5 Ferris in the Law of Extraordinary Legal Remedies has said: “The office of mandamus is to execute, not adjudicate. It does not ascertain or adjust mutual claims or rights between the parties. If the right be doubtful, it must be first established in some other form of action; mandamus will not lie to establish as well as enforce a claim of uncertain merit. It does not ascertain or adjust mutual claims or rights between the parties. If the right be doubtful, it must be first established in some other form of action; mandamus will not lie to establish as well as enforce a claim of uncertain merit. It follows, therefore, that mandamus will not be granted where the right is doubtful.” 9.6 Equally instructive it is to notice the scope and nature of a writ of mandamus authoritatively described as follows in “Halsbury’s Laws of England.” The order of mandamus is an order of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation, or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. 9.7 The statement of the law on the scope of mandamus in Corpus Juris Secundum is: “.........as a writ commanding the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station. It is a proceeding to compel someone to perform some duty which the law imposes on him, and the writ may prohibit the doing of a thing, as well as command it to be done. 26. It is evident from the authoritative exposition of the law that the sine qua non for the issuance of a writ of mandamus is the existence of a statutory or a public duty devolving upon the person or the body against whom or which the said writ is directed. Equally settled it is that along with this must co exist a corresponding right in the petitioners who were entitled to claim the enforcement of the said statutory public duty. Unless these two preconditions are satisfied, the requisite foundation for the issuance of a writ of mandamus can hardly be said to exist. Applying the twin test in the present context, I am of the view that neither one stands satisfied. The learned counsel for the petitioners were wholly unable to pinpoint even a single statutory provision which imposed upon the respondents any statutory public duty to pay the salary, where the very appointment of the petitioners may well be forged, fraudulent or illegal. The learned counsel for the petitioners were wholly unable to pinpoint even a single statutory provision which imposed upon the respondents any statutory public duty to pay the salary, where the very appointment of the petitioners may well be forged, fraudulent or illegal. Equally no provision can possibly be pointed out which would inhere in the petitioners an established enforceable right to the relief which they seek to claim.” 10. For the foregoing reasons, this writ petition is not required to be entertained as there is existence of alternative remedy. 11. In view of above, the writ of mandamus is not maintainable. Accordingly, the present petition deserves to be dismissed and is hereby dismissed.