Banarsi Dass vs State of Haryana

R.N. Mittal, J.—(January 30, 1978)--This appeal has been filed by the plaintiff against the order of the Senior Subordinate Judge, Rohtak, dated March 19, 1977.

Briefly the facts of the case are that the plaintiff was in a permanent Government service and was working as a conductor in the Transport Department of Haryana State. He was dismissed from service by the General Manger, Haryana Roadways, Rohtak, vide order dated December 14, 1973. He challenged the order of dismissal on the ground that it was illegal, void and ineffective as reasonable opportunity was not given to him to defend himself. He also pleaded that the order of dismissal was violative of Article 311 of the Constitution of India.

The suit was contested by the State of Haryana, inter alia, on the ground that the order was valid and that the suit was barred by limitation. The trial court held that the order of dismissal was illegal, and the suit was within limitation. It consequently decreed the suit. The State of Haryana went up in appeal before the Senior Subordinate Judge, Rohtak, and raised an argument for the first time that the civil court had no jurisdiction to entertain and try the suit. The Senior Subordinate Judge upheld the objection of the State, accepted the appeal and ordered that the plaint be returned to the plaintiff. He has come up in appeal against the order of the Senior Subordinate Judge to this Court.

The only question that arises for decision in this appeal is whether the civil court had jurisdiction to try this suit or not. It is contended by the learned Counsel for the appellant that the plaintiff instituted the suit challenging his dismissal on the ground that he was not given reasonable opportunity to defend himself and the order of the dismissing authority was consequently violative of Article 311 of the Constitution of India. According to the learned Counsel if there is violation of constitutional provision, the normal remedy of a citizen is by way of suit in a civil court. He, in support of his argument, has referred to Bharat Kala Bhandar Ltd. Vs. Municipal Committee, Dhamangaon, Ballabhadas Mathurdas Lakhani and Others Vs. Municipal Committee, Malkapur, , The Municipal Corporation, lndore v. Niyamatulla AIR 1971 S.C. 97. He has further argued that even if remedy under the Industrial Disputes Act was also available to the appellant, it was in his discretion either to file a civil suit or to go to the forum provided under the Industrial Disputes Act. He has relied upon The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, , to buttress his arguments. On the other hand, the learned Counsel for the respondent has argued that if a remedy to the plaintiff was available under the Industrial Disputes Act, he had no right to institute the present suit. He has mainly placed reliance on my judgment in State of Punjab v. Dewarka Dass (1976) P.L.R. 92.

I have heard the learned Counsel at a considerable length and given a thoughtful consideration to their arguments. The Supreme Court, in Premier Automobiles'' case, (supra), has laid down four principles applicable to the jurisdiction of the civil Courts in relation to the Industrial Disputes. Mr. Gaur has laid emphasis on principle No. 2, The said principle is as follows:

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.

According to the principle, if a dispute can be taken by a suitor to a civil Court as well as before a Tribunal under the Industrial Disputes Act, it is for him to elect either. The question still remains whether in the present case, a suit could be instituted in a civil court by the appellant. There is no direct case of the Supreme Court on this point. In Bharat Kala Bhandar''s, Ballabhdas Mathurdas Lakshmi''s and Niyamatulla''s cases, no doubt the Supreme Court observed that for violation of a constitutional provision a civil suit was maintainable. The observations were, however, made in different sets of circumstances. A similar matter has been specifically dealt with in Dewarka Dassy case, (supra) wherein it was alleged that the services of an employee were terminated by the General Manager, Punjab Roadways, without giving him any show-cause notice, which was in contravention of the provisions of Article 311 of the Constitution of India. He challenged the order in a civil Court. I, in that case, held that the civil Court had no jurisdiction to try the suit. A Letters Patent Appeal against that judgment is pending in this Court. The matter in the present appeal is of great general importance which may affect a large number of cases. In the circumstances, it will be proper that the present appeal may be decided by a Division Bench. The papers of the appeal may, therefore, be laid before My Lord the Chief Justice for passing appropriate orders.

January 30, 1978 Sd/- Rajendra Nath Mittal, Judge.

JUDGMENT OF DIVISION BENCH

Prem Chand Jain, J.—Banarsi Dass, plaintiff, was in a permanent Government service and was working as a conductor in the Transport Department of the Haryana State. He was dismissed from service by the General Manager, Haryana Roadways, Rohtak, vide order dated December 14, 1973. He challenged the order of dismissal on the ground that it was illegal, void and ineffective as reasonable opportunity was not given to him to defend himself. He also pleaded that the order of dismissal was violative of Article 311 of the Constitution of India.

The suit was contested by the State of Haryana, inter alia, on the ground that the order was valid and that the suit was barred by limitation.

The trial court held that the order of dismissal was illegal and the suit was within limitation, with the result that a decree, as prayed for, was passed in favour of the plaintiff. Feeling aggrieved from the judgment and decree of the trial Court, the State of Haryana preferred an appeal which was allowed by the learned Senior Subordinate Judge on the ground that the civil court had no jurisdiction to entertain and try the suit. The learned Senior Subordinate Judge, in view of that finding, ordered the plaint to be returned to the plaintiff. Dissatisfied with the order of the learned Senior Subordinate Judge, the plantiff filed the present appeal (S.A. Order No. 29 of 1977) in this Court, which came up for hearing before a learned single Judge of this Court, who found that the point involved in the appeal was of great general importance and accordingly directed that the same be heard by a large Bench. That is how the matter has been placed before us.

The only point that needs determination in this case is whether the civil court had jurisdiction to try the suit or not?

It was contended by Mr. Gour, learned Counsel, that the appellant was a permanent employee, that the order of dismissal contravened the provisions of Art 311 of the Constitution and that in such a situation the jurisdiction of the civil Court was not barred.

On the other hand, it was contended by Mr. Order P. Goyal, learned Counsel for the respondent, that the dispute between the parties was an industrial dispute, that such a dispute could be adjudicated upon under the provisions of the Industrial Disputes Act and that the civil Court had no jurisdiction to entertain the suit.

After giving our thoughtful consideration to the entire matter, we find that there is considerable force in the contention of the learned Counsel for the respondent.

It is not necessary to advert to various judicial pronouncements in order to find out the principles which would be applicable to the jurisdiction of the civil court in relation to an industrial dispute as the same have been enumerated by their Lordships of the Supreme Court in Premier Automobiles Ltd. v. Kamalakar Shantaram Wadke (1975) 48 F.J.R 252. The said principles which have been given at page 269 of the report read as under:

(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 case.

(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.

Mr. Gaur, learned Counsel for the appellant, relied on principle (2) and submitted that the civil court too had jurisdiction to entertain the suit. This contention of the learned Counsel can straightway be negatived in view of the observations made by their Lordships of the Supreme Court in paragraph 24 of the report, immediately after enunciating the aforesaid four principles, which read as under (at page 270):

We may, however, in relation to principle 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 2. Cases of industrial disputes by and large, almost invariably, are bound to be covered by principle 3 stated above.

If the case of the appellant is judged in the light of the observations reproduced above, then there would be no escape from the conclusion that the civil court will have no jurisdiction to entertain the suit.

There is no dispute that the plaintiff is a workman and that the dispute between the parties is an industrial dispute in view of the provisions of Section 2A of the Industrial Disputes Act. Under Item No. 3 of Second Schedule, "the discharge or dismissal of workmen including reinstatement of, or grant of relief to, workmen wrongfully dismissed", falls within the jurisdiction of the Labour Court. That being so, and as observed by their Lordships of the Supreme Court, cases of industrial disputes by and large, almost invariably, are bound to be covered by principle 3 stated above. This being the law laid down by the Supreme Court, we find no justification in the contention of the learned Counsel for the appellant that the impugned order of dismissal passed against the appellant can also be challenged in a civil Court.

It was sought to be argued by Mr. Gaur, learned Counsel, that the order of dismissal is without jurisdiction and on that score could be challenged in the ordinary court of law. In support of his contention, the learned Counsel placed reliance on the judgments of the Supreme Court in Moti Ram Deka etc. Vs. General Manager, N.E.F. Railways, Maligaon, Pandu, etc., , and Bharat Kala Bhandar Ltd. Vs. Municipal Committee, Dhamangaon, , and of the Mysore High Court in Syndicate Bank Ltd. v. Vincent Robert Kobo (1971) Lab.I. C. 1955. In our view, these decisions are of no assistance to the learned Counsel for the appellant, especially in view of the judgment of their Lordships of the Supreme Court in Premier Automobiles case, (1975) 48 F.J.R. 252, to which a detailed reference has been made in the earlier part of the judgment.

No other point was urged on either side.

For the reasons recorded above, this appeal fails and is dismissed, but in the circumstances of the case, we make no order as to costs.