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CASE NO.:

Appeal (civil) 4849-4854 of 1992

PETITIONER:

CHANDRAKANT TUKARAM NIKAM & ORS.

Vs.

RESPONDENT:

MUNICIPAL CORPORATION OF AHMEDABAD & ANR.

DATE OF JUDGMENT: 06/02/2002

BENCH:

G.B. Pattanaik, R.P. Sethi & Bisheshwar Prasad Singh

JUDGMENT:

PATTANAIK, J.

These appeals are directed against the judgment of the

Division Bench of Gujarat High Court in Letters Patent

Appeals filed against a common judgment of a learned Single

Judge dated 22nd September, 1990. The workmen of

Ahmedabad Municipal Corporation challenged the orders of

dismissal/removal from service, by filing a Civil Suit. The

City Civil Court framed four issues, one of which is whether

the suit is bad for want of jurisdiction. On the said issue it

came to the conclusion that the Civil Court had no

jurisdiction to entertain and try the suit, accordingly the suit

was dismissed. Identical suits filed by different employees

against the order of termination having been dismissed by the

City Civil Court, individual appeals had been preferred and

all those appeals, six in number, stood disposed of by a

common judgment of the learned Single Judge of Gujarat

High Court. The Single Judge came to the conclusion that

the Civil Court will have the jurisdiction to go into the

question, as to whether the orders of termination of services

were null and void, having been passed by an authority who

had no competence to pass the same, but it had no

jurisdiction to examine the alleged lacuna in the procedural

part of disciplinary inquiry which is governed by Standing

orders and the jurisdiction of the Civil Court to enter into

such question must be held to be impliedly barred. With this

conclusion the learned Single Judge having set aside the

judgment of the City Civil Court and having remitted the

matter for adjudication, as to whether the order of

termination could be interfered with on the ground of want of

competence on the part of the authority, who had passed the

order, the plaintiff/workman assailed the same by filing

Letters Patent Appeal contending inter alia that the City Civil

Court will have no jurisdiction to go into the procedural

irregularities because the provisions of Industrial Disputes

Act and implied ouster of jurisdiction of Civil Court is not

correct. Ahmedabad Municipal Corporation filed cross-

objection in the Letters Patent Appealss challenging that part

of the judgment and decree of the learned Single Judge

whereunder the Single Judge had quashed the decree of the

City Civil Court and remanded the matter to City Civil Court

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for deciding as to whether declaration prayed for by each of

the workman can be granted on the ground of want of

competence on the part of the authority who had passed the

order of dismissal/removal. All these Letters Patent Appeals

as well as the corss-objections were disposed of by a

common judgment, which is the subject matter of

consideration in these appeals. The Division Bench of the

High Court was of the opinion that the City Civil Court was

right in holding that it has no jurisdiction to hear the suits

instituted by the employees/plaintiffs and the learned Single

Judge was not right in holding that the question of

competence of the authority, who had passed order of

dismissal or who had passed the order to initiate disciplinary

proceedings could be decided by the Civil Court. According

to the Division Bench even that question about the

competence of the authority who passed the order can be

gone into by the Labour Court or Industrial Tribunal, and

therefore, Civil Court's jurisdiction to entertain a suit has to

be held to have been impliedly barred. The Letters Patent

Appeals having been dismissed and cross-objections filed by

the Corporation having been allowed, the present appeals

have been preferred. When these appeals were listed before

a bench of this Court, by order dated 13th October, 1993,

Bench referred the cases to a Constitution Bench of 5

Hon'ble Judges. When the appeals were listed before a

Constitution Bench it was represented by the counsel that the

matter has been resolved by a judgment of this Court in

Rajasthan State Road Transport Corporation and

another vs. Krishna Kant and others (1995) 5 SCC 75,

and therefore, the Constitution Bench thought it fit to direct

that the Civil Appeals should be placed before a Bench of

three learned Judges, and that is why these appeals came

before us.

Mr. Ahmadi, learned counsel appearing for the

appellants contended, that under Section 9 of the Code of

Civil Procedure the Civil Courts have the jurisdiction to try

all suits of civil nature excepting suits of which their

cognizance is either expressly or impliedly barred. In view

of language of Section 9, the counsel urged that there should

be presumption in favour of the jurisdiction of a Civil Court

and exclusion of the jurisdiction should not be readily

inferred unless such exclusion is either explicitly expressed

or clearly implied. According to Mr. Ahmadi, a law ousting

the jurisdiction of a Civil Court should be strictly construed

and the onus lies on the party who seeks to oust the

jurisdiction of the Civil Court, to establish the same.

According to the learned counsel a litigant having a

grievance of a civil nature has, independently of any statute,

a right to institute a suit in a Civil Court and that right cannot

be taken away unless the same is either expressly barred or

impliedly inferred. According to the learned counsel the

suits filed in the case in hand and the relief sought for, being

civil in nature the jurisdiction of the Civil Court ought not to

be held to be impliedly barred merely because the Industrial

Tribunal or Labour Court can entertain the dispute and grant

the relief in question. It is also urged that the Industrial

Disputes Act does not contain any provision barring the

jurisdiction of a Civil Court. That being the position, the

High Court committed error in holding that the jurisdiction of

the Civil Court must be impliedly held to have been barred.

According to Mr. Ahmadi, if the right claimed is not purely a

creature of the Industrial Disputes Act, but is a common law

right and the Industrial Disputes Act entrusts to a special

Tribunal for adjudication of such right and at the same time

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does not expressly oust the jurisdiction of the Civil Court, the

intention of the legislature must be held to be that the

jurisdiction of the Civil Court is not barred and in such a case

it would be open to the party concerned to elect one of the

forum for the remedies, which he is seeking for. The learned

counsel for the respondent Mr. Anand, on the other hand

contended, that the Parliament having enacted the provisions

of Industrial Disputes Act for speedy, inexpensive and

efficacious remedies in relation to a dispute between the

employer and the employee, it must be held that the

jurisdiction of the Civil Court is barred if the relief sought for

could be properly given by a forum under the Industrial Law.

According to Mr. Anand the very purpose of the enactment

would be frustrated if it is held that the Civil Court still

retains the jurisdiction over a dispute which could be

otherwise adjudicated upon by a forum under the Industrial

Disputes Act.

In view of the rival submissions at the bar, the question

that arises for consideration is whether the relief sought for

by the plaintiffs in these suits can come within the ambit of

an industrial dispute under the Industrial Disputes Act, and if

the answer is in affirmative then whether the conclusion of

the High Court that the jurisdiction of the Civil Court is

barred is correct or not?

One of the leading authorities on the point is the case of

Dhulabhai and others vs. The State of Madhya Pradesh

and another - (1968) 3 SCR 662. A Constitution Bench of

this Court after examining the diverse views expressed in

several earlier decisions came to hold that an exclusion of

jurisdiction of Civil Court is not readily to be inferred unless

the statute gives a finality to the orders of the special

Tribunals and the Tribunals would be entitled to confer

adequate remedy what the Civil Courts would normally do in

a suit and only in such circumstance the Civil Courts'

jurisdiction can be inferred to be excluded, but the Court

hasten to add that even in such cases also the Civil Courts'

jurisdiction cannot be said to be excluded, if it is alleged that

the provisions of particular Act had not been complied with

or that the statutory Tribunal have not acted in conformity

with the fundamental principles of judicial procedure. Mr.

Ahmadi, no doubt placed reliance on the decisions of this

Court in Sirsi Municipality by its President, Sirsi vs.

Cecelia Kom Francis Tellis - (1973) 1 SCC 409 and Ram

Kumar vs. State of Haryana 1987 (Supp.) SCC 582, but

in both these aforesaid cases the question of implied ouster of

the jurisdiction of Civil Court where an Industrial Court can

grant relief sought for was not the subject matter for

consideration. The consideration in both the cases was

whether the dismissal of a workman being assailed, can the

Civil Court entertain and try the suit and the answer was in

affirmative. Nobody disputes with the aforesaid proposition.

The point in issue in the case in hand was not before this

Court in the aforesaid two cases. In the case of The

Premier Automobiles Ltd. etc. vs. Kamlekar Shantaram

Wadke of Bombay and others etc. etc,. (1976) 1 SCC 496

the question of ouster of jurisdiction of the Civil Court in

relation to a labour dispute came up for consideration

directly. The Court held in the aforesaid case that if a statute

confers a right and in the same breath provides for a remedy

for enforcement of such right the remedy provided by the

statute is an exclusive one. It further held that under Section

9 of the Code, the Courts have subject to certain restrictions,

jurisdiction to try suits of civil nature excepting suits of

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which their cognizance is either expressly or impliedly

barred. The Court examined the provisions of the Industrial

Disputes Act and came to the conclusion that the Act

envisages collective bargaining, contracts between union

representing the workmen and the management and such a

matter was held to be outside the realm of the common law

or Indian Law of Contract. The Court also held that the

powers of the authorities deciding industrial disputes under

the Industrial Disputes Act are very extensive, much wider

than the powers of a civil court while adjudicating a dispute

which may be an industrial dispute. But under the provisions

of the Industrial Disputes Act since the workman cannot

approach the labour court or tribunal directly and the

government can refuse to make a reference even on grounds

of expediency, such handicap would lead to the conclusion

that for adjudication of an industrial dispute in connection

with a right or obligation under the general or common law

and not created under the Act, the remedy is not exclusive,

and on the other hand is alternative, and therefore, the Civil

Court will have no jurisdiction to try and adjudicate upon an

industrial dispute if it concerned enforcement of certain right

or liability created only under the Act and not otherwise. In

other words it was held that 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. But if

the dispute is an industrial dispute arising out of the 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 suitor concerned to choose his remedy for

the relief which is competent to be granted in a particular

remedy. It was also held that 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. Mr. Ahmadi, learned counsel

appearing for the appellants strongly relied upon the

aforesaid observations for his contention that the dispute in

the case in hand cannot be held to be dispute arising out of a

right or liability under the Act, and on the other hand, is a

dispute arising out of a right or liability under the common

law, and as such, the jurisdiction of the Civil Court could not

have been held to have been barred. This decision of the

Court was considered by this Court in Rajasthan State Road

Transport Corporation & Anr. vs. Krishna Kant and

others. (1995) 5 SCC 75. After quoting the principles

enunciated by the Court in The Premier Automobiles' case

(supra) and on consideration of a large number of decisions,

it was held :-

"Para 28. Now, coming back to Principle No.2

and its qualification in para 24, we must say that

para 24 must be read harmoniously with the said

principle and not in derogation of it- not so as to

nullify it altogether. Indeed, Principle No.2 is a

reiteration of the principle affirmed in several

decisions on the subject including Dhulabhai.

Principle No.2 is clear whereas para 24 is more in

the nature of a statement of fact. It says that most

of the industrial disputes will be disputes

involving the rights and obligations created by the

Act. It, therefore, says that there will hardly be

any industrial dispute which will fall under

Principle No.2 and that almost all of them will fall

under Principle No.3. This statement cannot be

understood as saying that no industrial dispute can

ever be entertained by or adjudicated upon by the

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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

must accordingly be held that the effect of

Principle No.2 is in no manner whittled down by

para 24. At the same time, we must emphasise

the policy of law underlying the Industrial

Disputes Act and the host of enactments

concerning the workmen made by Parliament and

State Legislatures. The whole idea has been to

provide a speedy, inexpensive and effective forum

for resolution of disputes arising between

workmen and their employers. The idea has been

to ensure that the workmen do not get caught in

the labyrinth of civil courts with their layers upon

layers of appeals and revisions and the elaborate

procedural laws, which the workmen can ill

afford. The procedures followed by civil courts, it

was thought, would not facilitate a prompt and

effective disposal of these disputes. As against

this, the courts and tribunals created by the

Industrial Disputes Act are not shackled by these

procedural laws nor is their award subject to any

appeals or revisions. Because of their informality,

the workmen and their representatives can

themselves prosecute or defend their cases. These

forums are empowered to grant such relief as they

think just and appropriate. They can even

substitute the punishment in many cases. They

can make and re-make the contracts, settlements,

wage structures and what not . Their awards are

no doubt amenable to jurisdiction of the High

Court under Article 226 as also to the jurisdiction

of this Court under Article constraints. 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.

Para 29. Now let us examine the facts of the

appeals before us in the light of the principles

adumbrated Premier Automobiles. The first thing

to be noticed is the basis upon which the

plaintiffs-respondents have claimed the several

reliefs in the suit. The basis is the violation of the

certified Standing Orders in force in the appellant-

establishment. The basis is not the violation of

any terms of contract of service entered into

between the parties governed by the law of

contract. At the same time, it must be said, no

right or obligation created by the Industrial

Disputes Act is sought to be enforced in the suit.

Yet another circumstances is that the Standing

Orders Act does not itself provide any forum for

the enforcement of rights and liabilities created by

the Standing Orders. The question that arises is

whether such a suit falls under Principle No.3 of

Premier Automobiles or under Principle No. 2?

We are of the opinion that it falls under Principle

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No.3. The words "under the Act" in Principle

No.3 must, in our considered opinion, be

understood as referring not only to Industrial

Disputes Act but also to all sister enactments-[like

Industrial Employment (Standing Orders) Act]

which do not provide a special forum of their own

for enforcement of the rights and liabilities

created by them. Thus a dispute involving the

enforcement of the rights and liabilities created by

the certified Standing Orders has necessarily got

to be adjudicated only in the forums created by

the Industrial Disputes Act provided, of course,

that such a dispute amounts to an industrial

dispute within the meaning of Section 2(k) and 2-

A of Industrial Dispsutes Act or such enactment

says that such dispute shall be either treated as an

industrial dispute or shall be adjudicated by any of

the forums created by the Industrial Disputes Act.

The civil courts have no jurisdiction to entertain

such suits. In other words, a dispute arising

between the employer and the workman/workmen

under, or for the enforcement of the Industrial

Employment Standing Orders is an industrial

dispute, if it satisfies the requirements of Section

2(k) and/or Section 2-A of the Industrial Disputes

Act and must be adjudicated in the forums created

by the Industrial Disputes Act alone. This would

be so, even if the dispute raised or relief claimed

is based partly upon certified Standing Orders and

partly on general law of contract."

The Three Judge Bench in Rajasthan State Road

Transport Corporation (supra) summarised the principles

as below:-

"(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 2-A 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 2-A 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

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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 2-A 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."

It may be borne in mind that the Industrial Disputes Act was

enacted by the Parliament to provide speedy, inexpensive and

effective forum for resolution of disputes arising between

workmen and the employers, the underlying idea being to

ensure that the workmen does not get caught in the labyrinth

of civil courts which the workmen can ill afford, as has been

stated by this Court in Rajasthan State Road Transport

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Corpn. case(supra). It cannot be disputed that the procedure

followed by Civil Courts are too lengthy and consequently, is

not an efficacious forum for resolving Industrial Disputes

speedily. The power of Industrial Courts also is wide and

such forums are empowered to grant adequate relief as they

think just and appropriate. It is in the interest of the

workmen that their disputes, including the dispute of illegal

termination are adjudicated upon by an industrial forum. To

our query Mr. Ahmadi, learned counsel appearing for the

appellants was not in a position to tell that the relief sought

for in the cases in hand, cannot be given by a forum under the

Industrial Disputes Act. The legality of order of termination

passed by the employer will be an industrial dispute within

the meaning of Section 2(k) and under Section 17 of the

Industrial Disputes Act, every Award of Labour Court,

Industrial Tribunal or National Tribunal is required to be

published by the appropriate government within a period of

thirty days from the date of its receipt and such Award

published under sub-section (1) of Section 17 is held to be

final.

In the aforesaid premises and having regard to the relief

sought for in the suits filed in the Civil Court, we have no

manner of hesitation to come to the conclusion that in such

cases the jurisdiction of the Civil Court must be held to have

been impliedly barred and the appropriate forum for

resolution of such dispute is the forum constituted under the

Industrial Disputes Act. We, therefore, do not find any

infirmity with the impugned judgment of the High Court

requiring our interference. The appeals accordingly fail and

are dismissed. We would however observe that it would be

open for the appellants-workmen to approach the appropriate

industrial forum and such forum if approached, will dispose

of the matter on its own merits. There will be no order as to

costs.

............................................J.

(G.B. PATTANAIK)

........................................J.

(R.P. SETHI)

................................J.

(BISHESHWAR PRASAD SINGH)

February 06, 2002.