Ranigunge Coal Fields Colliery Workers Central Co-Op. Stores vs Suryakanta Chowdhury and Another

S.M. Guha, J.—The instant revision is directed against the order dated 29th March 1980 passed by Sm. C. Biswas, the learned Munsif, Additional Court, Asansole in Title Suit No. 19 of 1977-subsequently renumbered as title Suit No. 25 of 1979 holding that the Civil Court has jurisdiction to entertain the suit. The petitioner is a Co-operative Society duly registered under the provisions of Bengal Co-operative Societies Act 1940 repealed and replaced by the W.B. Cooperative Societies Act 1973. The plaintiifs-Opposite parties were the employees of the petitioner-whose service was governed by the terms and conditions of employment as contained in their respective contracts of service. Pursuant to the decision of the Board of Administrators in a meeting held on the 21st December, 1976, the Executive Officer of the petitioner served the notices of retrenchment on the Opposite parties on or about 21st January, 1977. Thereafter they instituted the suit mentioned above for a declaration that the order of retrenchment is a colourable exercise of power and the termination of the service of the Opposite parties is illegal wrongful void and inopera-tive-with a prayer for permanent injunction restraining the petitioners from giving any effect to the said orders of retrenchment

The petitioner challenged the main taxability of the suit and questioned the jurisdiction of the Civil Court to entertain the suit. Being aggrieved by the order of the learned Munsif holding that the Civil Court has jurisdiction to entertain the suit. the petitioner has come in revision.

It is argued by the learned Advocate for the petitioner that the contract of service cannot be specifically performed, as the relationship between the parties is that of master and servant. The remedy of the Opposite parties, if any, lies in damages.

As to the jurisdiction of the Civil Court it is contended that the question of retrenchment Is a dispute within the provisions of Industrial Disputes Act 1947 and as such u/s 7A read with Second Schedule of the Act the forum is the Labour Courts. Reliance is placed on the decision of the Supreme Court in me case of Executive Committee, U.P. Warehousing Corporation Vs. Chandra Kiran Tyagi, . It is held therein that normally a contract of personal service will not be enforced by an order for specific performance not will it be open for a servant to retire to accept the repudiation of a contract of service by his master and say that the contract has never been terminated. The remedy ot the employee is a claim for damages for wrongful dismissal or breach of contract The exceptions to the normal rule that no declaration to enforce a contract of personal service will be granted are (1) a public servant who has been dismissed from service in contravention of Art, 311, (2) reinstatement, of a dismissed worker under Industrial Law or by Labour or Industrial Tribunals, t3) A statutory body when it has acted in breach of a mandatory obligation, imposed by statute.

Next it is contended that Co-operative Societies cannot be taken to be a statutory body, W. 8 Co-operative Societies Act 1973 was passed to consolidate and amend the law relating to Cooperative Societies in West Bengal. Under the pro-visions ot this Act for settlement of disputes- the disputes are to referred to the Registrar, but u/s 86(1) proviso (o) nothing in this sub-section shall apply to any dispute (a) regarding disciplinary action taken by a Society or its Managing Committee against its paid employees.

So, according to the learned Advocate for the petitioner under the industrial Disputes Act. 1947 Labour Court is the only forum to entertain a dispute of this nature According to Section 2(i) "industry means any business, trade, undertaking, manufacture or calling of employees and includes any calling, service, employment, handicraft or industrial occupation or avocation of workman, and ''industrial dispute" u/s 2(k) means any dispute or difference between employers and employees, or between employers and workmen, or between workmen, and workmen which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person

Jurisdiction of the Civil Court u/s 9 of the CPC was discussed by the Full Bench of the Lahore High Court. The principles therein were reiterated by the Supreme Court in Bharat Kala Bhandar Ltd. Vs. Municipal Committee, Dhamangaon, . The principles enunciated are to be found in these terms

Under Section 9 of the CPC the Court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred A statute, therefore, expressly or by necessary implication, can bar the jurisdiction of civil Courts in respect of a particular matter. The mere conferment of special jurisdiction on a tribunal in respect of the said matter does not in itself exclude the jurisdiction of civil courts. The statute may specifically provide for ousting the jurisdiction of Civil Courts; even if there was no such specific exclusion, if it creates a liability not existing before and gives a special and particular remedy for the aggrieved party. The remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the same remedy could be had. Even in such cases, the Civil Court''s jurisdiction is not completely ousted. A suit in a Civil Court will always lie to question the order of a tribunal created by a statute, even if its order is expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions.

The Supreme Court again had occasion to consider the jurisdiction of Civil Court in relation to industrial disputes in the cases of The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, . The principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute were enumerated at p. 2251 of the report as follows :-

(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 art 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 efection 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 33C or the raising of an industrial dispute, as the case may be.

Their Lordships then continue to add:-

We may, however, in relation to principle 2 stated above hasten to add that there will hardly He 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 2, cases of industrial disputes by and large, almost invariably are bound to be covered by principle 3 stated above.

Applying the principles stated above to the facts of the instant case. It is clear what the plaintiffs opposite patties wanted was a declaration that the orders of retrenchment are illegal, void etc. in view of the terms and conditions of employment as contained in their respective. contract of service. Such a dispute will come within the perview of Section 2A of the Act. So the individual dispute, under the Act turns into an industrial dispute.

Moreover, in view of the decision of the Supreme Court in the case reported in Executive Committee, U.P. Warehousing Corporation Vs. Chandra Kiran Tyagi, the Civil Court is not competent to pass a decree in a suit of this nature. The position of course would have been otherwise, had there been a claim for damages for wrongful retrenchment.

In this view of the matter, disagreeing with the learned Munsiff I would hold that the Civil Court has no jurisdiction to entertain the instant suit. The rule is accordingly mode absolute, There will be no order as to costs.