Suresh Kumar vs State Bank of India

J.S. Khehar, J.—The facts as have been revealed in the grounds of revision as also in the impugned order of the trial Court, show that the petitioner- plaintiff was an employee of the State Bank of India and was posted in one of its branches at Amritsar. During the course of his employment, he was placed under suspension. Despite his suspension, he was not paid any subsistence allowance. He had approached the Civil Court claiming subsistence allowance. In spite of the direction issued in this behalf, he was still not paid the same. Departmental proceedings were initiated against the petitioner-plaintiff which culminated in an order of dismissal from service. The order of dismissal from service dated 13.9.1996 was challenged by him by filing a civil suit on 25.1.1997 wherein he impugned the order of dismissal from service asserting that the same was illegal, null and void and the violation of the Shastri award and the Desai award. He also asserted that the bipartite settlement entered into between State Bank of India and State Bank of India Staff Federation, besides being void and without jurisdiction, was inoperative against the petitioner-plaintiff. On the aforesaid premises, he prayed for reinstatement in service with all consequential benefits by claiming that he should be deemed to be an employee of the State Bank of India as clerk-cum-cashier by ignoring the impugned order of dismissal from service.

The petitioner-plaintiff challenged the departmental proceedings initiated against on the following grounds :-

"(i) That the petitioner-plaintiff was placed under suspension on 5.3.1988 but was not paid subsistence allowance during the period of his suspension despite judgment and decree dated 30.11.1991 of the Civil Court. He was, thus, incapacitated from defending himself in the so-called enquiry;

(ii) That the charge sheet served on the petitioner was no charge sheet in the eyes of the law. No list of witnesses and documents or the statement of allegations was supplied with it. This violates the principle of natural justice;

(iii) No official communication was conveyed to the petitioner regarding appointment of enquiry officer. Thus, the entire proceedings stand vitiated;

(iv) That the enquiry officer did not give due and proper opportunity to the petitioner to cross-examine the prosecution witnesses and to lead his own evidence in rebuttal. This is violative of the rules of natural justice;

(v) That petitioner was not supplied with a report of the enquiry officer before the impugned order of his dismissal was passed. This is clear contravention of the law laid down by the Supreme Court.

(vi) That the subject-matter of enquiry was already the subject-matter of the pending criminal case instituted by the bank. Therefore, till the decision of the criminal court, the enquiry officer could not proceed and in case the petitioner was acquitted in the criminal case, he was entitled to reinstatement. As such, the order of dismissal dated 13.9.1996 was pre- mature."

The fact that the petitioner-plainliff is ''workman'' within the meaning of section 2(s), and the fact that State Bank of India is an ''industry'' within the meaning of Section 2(j) of the Industrial Disputes Act, 1947 has not been contested. u/s 2(k) an''industrial dispute'' includes a dispute between an employer and a workman. Since the present dispute raised by the petitioner-plaintiff is with his employer, it is natural that the said dispute is an industrial dispute within the meaning of Section 2(k).

In spite of the fact that the dispute between the petitioner-plaintiff and the respondents-defendants State Bank of India was an industrial dispute, he preferred a civil suit impugning the order of dismissal from service dated 13.9.1996 and claimed continuation in service as if the impugned order had never been passed.

An application under Order 7 Rule 11 read with Section 151 of the CPC was filed by the respondents-defendants claiming rejection of the plaint for want of jurisdiction. The trial Court vide its order dated 1.4.1998 allowed the aforesaid application and consequently the plaint filed by him was ordered to be returned to him to be presented before a proper Forum. The aforesaid order of the trial Court has been impugned in the instant civil revision.

While accepting the application filed by the respondents-defendants, the trial Court relied on the decision of the Supreme Court rendered in Jitendra Nath Biswas Vs. M/s. Empire of India and Ceylon Tea Co. and Another, . In the aforesaid case, the employee was asked by the Management to explain certain charges of misconduct. On the conclusion of the domestic enquiry held against him, he was dismissed from service. He challenged the order of dismissal as being contrary to provisions of the standing orders framed under the Industrial Employment (Standing Orders) Act, 1946 and on the aforesaid basis he sought the relief of declaration to the effect that the order of dismissal from service was null and void and inoperative. He also sought the relief of back wages. The aforesaid claim was made by the employee in a civil Court. The management in the written statement raised the plea that the suit was not maintainable, as the relief sought by the employee was available under the Industrial Disputes Act, 1947; accordingly it was pleaded that the Civil Court had no jurisdiction to entertain the suit. When the aforesaid question of jurisdiction came up for consideration before the Apex Court, it held that an adequate remedy was available to the employee under the scheme of the Industrial Disputes Act, as such it was not open to the employee to claim the said relief by filing a civil Suit. The jurisdiction of the civil Court was held to be impliedly excluded; relevant extract of the observations of the Apex Court in para 5 of the aforesaid judgment are being reproduced hereunder :-

"It is, therefore, clear that in view of language of Section 10 read with Section 12(5) as has been held by this Court an adequate remedy is available to the appellant-plaintiff under the scheme of the Industrial Disputes Act itself which is the Act which provides for the relief of reinstatement and back wages which in fact the appellant sought before the civil court by filing a suit."

"It is, therefore, clear that this Act i.e. Industrial Disputes Act not only confers the right on a worker for reinstatement and back wages if the order of termination of dismissal is not in accordance with the Standing Orders but also provides a detailed procedure and machinery for getting this relief. Under these circumstances, therefore, there is an apparent implied exclusion of the jurisdiction of the civil Court."

Relying on the judgment of the Constitution Bench of the Apex Court in Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, , the Apex Court further observed that the scheme of the Industrial Disputes Act clearly excludes the jurisdiction of the civil Court by implementation (implication ?) in respect of remedies which are available under the Act and for which complete procedure and machinery has been provided under the Act. Accordingly it was concluded that the civil court had no jurisdiction to entertain grievance aired by the employee.

During the course of hearing before this Court, the learned Counsel for the respondents-defendants also relied on the decision rendered by the Apex Court in Rajasthan State Road Transport Corporation and Another Vs. Krishna Kant and Others, wherein the Apex Court again had an occasion to examine as to whether civil Court could entertain an industrial dispute. In Rajasthan State Road Transport Corporation''s case (supra) the respondents were employees of the Rajasthan State Road Transport Corporation. Pursuant to disciplinary proceedings held against them on charges of mis-conduct, their services were terminated. They challenged the order of termination from service by filing a civil suit for declaration to the effect that the order terminating their services was illegal and invalid and for a further declaration that they must be deemed to have continued in service, with all consequential benefits. Rajasthan State Road Transport Corporation resisted the suit on the ground that the civil court had no jurisdiction to entertain the same. While determining the matter in respect of jurisdiction of the civil Court certain principles were laid down by the Apex Court in the aforesaid case which were summarised in para 32 of the aforesaid judgment. Para 32 is being extracted hereunder :-

"We may now summarise the principles flowing from the above discussion :

(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 recognisation, 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 there cognisation, 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-K (2-A ?) of the 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 on ex facie. The power conferred is the power to refer and not the power to decide, though if may be that the government is entitled to examine; whether the dispute is ex fade frivolous, not meriting an adjudication.

(5) Consistent with the policy of law aforesaid, we commend to the 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 dp 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 Courts 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 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 foe putting an end to an industrial dispute."

Applying the aforesaid principles carved out, the Apex Court held that the suit filed by the employee impugning the order of his termination and seeking reinstatement with all consequential benefits was not maintainable.

Learned Counsel for the petitioner-plaintiff concedes to the legal position expressed in the aforesaid decision. He, however, relies on the decisions rendered by the Apex Court in The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, . In the aforesaid case, the Apex Court had an occasion to examine. whether an industrial dispute could be entertained for adjudication by a civil court. In examining the said issue, the Hon''ble Supreme Court summed up its conclusion in para 23. Para 23 is being extracted hereunder :-

"To sum up, the principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute may be stated thus :

(1) If the dispute is not an industrial dispute, nor does it relates 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, hearing (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 V-A then the remedy for its enforcement is either section 33C or the raising of an industrial dispute, as the case may be."

Learned Counsel for the petitioner-plaintiff on the basis of aforesaid decision of the Apex Court argued that even for adjudication of an industrial dispute, an employee has the option to seek his redressal from a civil court if his challenge to the impugned order is under the general law or the common law. In such a case, according to the learned Counsel for the petitioner, jurisdiction of the civil court would be an alternative remedy i.e. the employee would have a right to choose his own remedy; he could seek redressal under the Industrial Disputes Act, 1947 which provides a well defined procedure and machinery, or in the alternative he -could seek the necessary relief from a civil court. Primarily emphasis of the learned Counsel, was on principle No. 2 extracted above. In fact the same principle which has been relied upon by the learned Counsel for the petitioner-plaintiff was also one of the principle defined in the Rajasthan State Road Transport Corporation''s case (supra).

In the light of the principles laid down by the Apex Court, it is to be determined as to whether remedy available to the petitioner-plaintiff is only under the Industrial Disputes Act or whether he has the option to seek the relief from the Civil Court. This determination so far as the instant case is concerned is not far to fetch. The impugned order is an order of dismissal from service. As per the averments made in the plaint, it is claimed to be in violation of the Shastri award and pesai award. It is further the case of the petitioner-plaintiff that the bipartite settlement entered into between State Bank of India Staff Federation and the respondent-employer i.e. State Bank of India, besides being void and without jurisdiction is applicable qua the petitioner-plaintiff. It is, therefore, obvious that the entire pleadings twine around the awards and settlements under the Industrial Disputes Act, 1947. There is not a single averment in the plaint, which has been brought to my notice, expressing the violation of the right of the petitioner- plaintiff under the general or common law or for that matter under any other statutory provision besides the Industrial Disputes Act. I have, therefore, no hesitation whatsoever in concluding that principle No. 2 relied upon by the learned Counsel for the petitioner-plaintiff from the conclusion drawn by the Apex Court in Premier Automobiles Ltd''s. case (supra) cannot be invoked so as to allow the petitioner-plaintiff to challenge the impugned order of dismissal from service asserting that the same was illegal, null and void and in violation of the Shastri Award and the Desai Award and thereby seeking reinstatement with all consequential benefits by filing a civil suit. In fact a remedy has specifically been provided for the relief claimed by the petitioner-plaintiff under the Industrial Disputes Act, 1947, and in view of the law laid down by the Apex Court, in the discussion referred to above, the jurisdiction of the civil court stands clearly excluded.

In the aforesaid view of the matter, I find no infirmity in the impugned order of the trial Court. The instant revision petition is, therefore, dismissed. There shall, however, be no order as to costs.

Petition dismissed.