Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3027 OF 2007
R.S.R.T.C. & Ors. …Appellants
Versus
Deen Dayal Sharma …Respondent
JUDGEMENT
R.M. Lodha, J.
The jurisdiction of civil court to order reinstatement
of the respondent and grant of financial benefits of service to
him has been questioned in this appeal.
2. The respondent was appointed as conductor by the
Rajasthan State Road Transport Corporation – (for short,
‘appellants’) on October 11, 1982. On January 17, 1983, while
the respondent was on duty on Badi Chopad – Amer route, a
surprise inspection was done and six passengers were found
travelling in the bus without tickets. The respondent was
dismissed from service vide order dated January 24, 1983. The
respondent preferred departmental appeal against the order of
dismissal dated January 24, 1983 but the said appeal was
dismissed on September 5, 1985. He preferred review before
the reviewing authority which too was dismissed on April 13,
1987. The respondent then filed a civil suit in the Court of
Additional Munsif and Judicial Magistrate No.2, Jaipur City,
Jaipur against the appellants praying therein that the order of
dismissal dated January 24, 1983 be declared unlawful, illegal,
void and ineffective being contrary to the Standing Orders as no
departmental enquiry was held and he be held to be entitled to
all benefits as if he continued in service.
3. Although no written statement was filed by the
appellants, they challenged the jurisdiction of civil court orally
and submitted that the dispute being an industrial dispute, it can
only be resolved by the Industrial Tribunal.
4. The Trial Judge after recording the evidence of the
respondent, heard parties and overruled the objection raised by
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the appellants about the jurisdiction of the civil court and vide
judgement and decree dated March 6, 1991 declared the order
of dismissal dated January 24, 1983 illegal and ordered
reinstatement of respondent and other financial benefits to him.
5. The appellants challenged the judgement and
decree passed by the Trial Court in appeal before the District
Judge, Jaipur City but that was dismissed on the ground of
delay on January 20, 2001.
6. The second appeal preferred by the appellants
before the High Court was dismissed on November 7, 2005
holding that concurrent finding of facts by the courts below
warranted no interference. It is from this order that present
appeal by special leave arises.
7. In The Premier Automobiles Ltd. v. Kamlekar
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Shantaram Wadke of Bombay and Others , 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
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(1976) 1 SCC 496
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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.
(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:
“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 unsponsored
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.”
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8. In the case of Rajasthan State Road Transport
2
Corporation and Another v. Krishna Kant and Others , 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
1
,
Court, including Premier Automobiles 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 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
2
(1995) 5 SCC 75
5
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
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
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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 Corpn. and
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Others v. Zakir Hussain , 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
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the principles enunciated in Krishna Kant 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
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Rajasthan SRTC and Others v. Khadarmal , again considered
the question regarding jurisdiction of civil court in the matter of
termination of service of a probationer and following the
3
(2005) 7 SCC 447
4
(2006) 1 SCC 59
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3 2
judgments of this Court in Zakir Hussain and Krishna Kant
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 v. Bal Mukund
5
Bairwa , a two Judge Bench of this Court noticed
some conflict in the judgments of this Court in
2 4
Krishna Kant and Khadarmal and, accordingly,
referred the matter to a larger Bench. A three
Judge Bench of this Court in its decision titled
Rajasthan State Road Transport Corporation and
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Another v. Bal Mukund Bairwa (2) , 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
5
(2007) 14 SCC 41
6
(2009) 4 SCC 299
8
our considered opinion, it would not be correct to
contend that only because the employee concerned is
also a workman within the meaning of the provisions of
the 1947 Act or the conditions of his service are
otherwise governed by the Standing Orders certified
under the 1946 Act, ipso facto the civil court will have no
jurisdiction. This aspect of the matter has recently been
considered by this Court in Rajasthan SRTC v. Mohar
Singh [(2008) 5 SCC 542]. 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. 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,
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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
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justice has been set at rest in Bal Mukund Bairwa (2) . 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. 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.
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(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. 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
2 2
Kant . In that case (Krishna Kant ), this Court while
summarizing the legal principles in paragraph 35(6) stated that
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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
6
the principles indicated therein. In Bal Mukund Bairwa (2) , in
para 37 of the report, the position has been explained that if the
infringement of the Standing Orders is alleged, the civil court’s
jurisdiction may be held to be barred but if the suit is based on
the violation of principles of common law or constitutional
provisions or on other grounds, the civil court’s jurisdiction may
not be held to be barred. In our opinion, nature of right sought
to be enforced is decisive in determining whether the
jurisdiction of civil court is excluded or not. 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
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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.
15. In the result, appeal is allowed and impugned order
of the High Court and judgements of the courts below are set
aside. No order as to costs.
…..…….……………..J
(R. V. Raveendran)
…..…….……………..J
(R. M. Lodha)
New Delhi
May 5, 2010.
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