Tej Singh vs ICICI Bank Ltd.

Pratap Krishna Lohra, J.—Appellant-plaintiff, by the instant second appeal, has questioned the judgment and decree dated 28th of August, 1991, passed by Additional Civil Judge No. 1 Udaipur (for short, ''learned lower appellate Court''), whereby the learned lower appellate Court has reversed the judgment and decree dated 9th of August, 1988 passed by Munsiff and Judicial Magistrate, Udaipur City, North, Udaipur (for short, ''learned trial Court'') by decreeing the suit filed by the appellant.

Succinctly stated the facts of the case are that appellant was in employment of Bank of Rajasthan (now ICICI Bank) as cashier-cum-godown keeper. On 2nd of September, 1982, General Manager of the Bank invited applications from in-service candidates for recruitment/promotion in the officer cadre and pursuant thereto, appellant submitted his application form through proper channel on 30th September, 1982. The application form was forwarded to the Head Office of the Bank on 4th of October, 1982 and, on scrutiny, same did not find favour and an order, to this affect, was conveyed to the appellant on 23rd of October, 1982. By the aforesaid order, the appellant was conveyed that his form is rejected by citing the reason that he is ineligible to participate in the competitive examination for two years in terms of bipartite settlement dated 17th November, 1980, w.e.f. 31st of December, 1981. In terms of bipartite settlement dated 17th November, 1980, on account of suffering penalty of withholding one annual grade increment, the appellant was declared ineligible to take up competitive examination.

Being aggrieved by the aforesaid communication, appellant instituted two separate civil suits. In one suit, validity of departmental inquiry and consequential order of punishment was challenged and, relief for declaring departmental inquiry as well as consequential punishment order and appellate order as null and void was sought. In the second suit communication dated 23rd of October, 1982 was challenged, whereby appellant was debarred from taking part in competitive examination for promotion in the officer cadre. The suit, wherein departmental inquiry and consequential orders were under challenge, was decided against the appellant inasmuch as the crucial issue, in that suit, i.e., Issue No. 3, relating to jurisdiction of civil court, was decided against him. However, second suit of the appellant, in which communication dated 23rd of October, 1982 was under challenge, was tried by the learned trial Court and adjudicated on merits. The learned trial Court decided the issue, relating to jurisdiction in favour of appellant, by holding that the suit is triable by civil Court. While adverting to other issues, the learned trial Court decided all the issues, in favour of the appellant, and decreed the suit by declaring communication dated 23rd of October, 1982 as null and void and further held that respondent-Bank may re-initiate process for selection by departmental examination afresh qua appellant in the officer cadre.

Feeling disgruntled by the judgment and decree of the learned trial Court, respondent-Bank approached the First Appellate Court by laying appeal under Section 96 CPC before the learned District Judge, Udaipur. The learned District Judge, Udaipur, considering the prevalent trend, transferred the matter for its disposal to Additional Civil Judge No. 1, Udaipur, i.e., the learned lower appellate Court. The learned lower appellate Court, thereafter, examined the matter afresh and found fault with the findings and conclusions of the learned trial Court on all the issues. The learned lower appellate Court, while relying on the decision of Hon''ble Apex Court in The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, AIR 1975 SC 2238 : (1975) 31 FLR 195 : (1975) LabIC 1651 : (1975) 2 LLJ 445 : (1976) 1 SCC 496 : (1976) 1 SCR 427 , recorded a definite finding that suit of such nature is not maintainable before civil Court and the remedy available to the appellant is before the Industrial Courts.

Matter came up before this Court, at the threshold on 29th of October, 1992, and this Court, while admitting the appeal, framed following substantial questions of law:-

(i) Whether the legality of the order of punishment and order of debarment from promotion in respect of an industrial worker is not open to challenge by way of suit in a civil Court?

(ii) Whether an obligation arising out of settlement arrived at as per Industrial Disputes Act, 1947 be operative in regard to a happening which occurred prior to the settlement being arrived when it amounts to a mis-conduct which was not earlier so?

(iii) Whether the Appellate Authority can hold a person guilty of gross misconduct while adjudicating upon the appeal of punished officer when Disciplinary Authority has not found him guilty of gross misconduct.

(iv) Whether a punished person can be deemed to have committed gross mis-conduct when punishment imposed is minor one?

I have heard learned counsel for the parties, perused the judgments rendered by both the Courts below and scanned entire record of the case.

First two substantial questions of law are of great significance and the fate of this appeal, obviously, hinges on the decision of these questions of law, therefore, before adverting to other substantial questions of law, I propose to deal with these two questions at the threshold.

There remains no quarrel that when the notification was issued by the respondent-Bank for making recruitment/promotion of cashier-cum-godown keeper to officer cadre, appellant was in employment of the Bank as cashier-cum-godown keeper and his status was that of a workman within the meaning of section 2(s) of the Industrial Disputes Act, 1947 (for short, ''Act of 1947''). So far as service conditions of the cashier-cum-godown keeper, working under the respondent-Bank, are concerned, obviously, those service conditions were governed by bipartite settlement dated 17th November, 1980, which was arrived at between Union of Bank Employees and the Management, in terms of provisions of Act of 1947. In that background, the order, whereby appellant was debarred from participating in the process for promotion/recruitment, the embargo envisaged under the bipartite settlement, was pressed into service by the Bank management and, as such, the decision, which was conveyed to the appellant to his detriment, flowed from the statute i.e. the Act of 1947.

It is not in dispute that the eligibility of the appellant to compete for selection has accrued to him for being in employment of the Bank as cashier-cum-godown keeper and his service conditions were governed by the bipartite settlement. In such circumstances, as an employee of the Bank, appellant was enjoying all the benefits, which were flowing from the bipartite settlement and, therefore, he cannot be permitted to disown any of the provisions/clauses of bipartite settlement, which might have adversely affected his service career including the action of the respondent-Bank debarring him from competing in the process of selection. As an employee of the Bank appellant''s rights and obligations cannot be construed in isolation of the Bipartite Settlement.

It goes without saying that bipartite settlement was binding on both the parties, namely, employees as well as employer and, unless and until that bipartite settlement is replaced by another bipartite settlement, even provisions/clauses irrespective of their implication are to be adhered to by both the parties to settlement. This sort of situation obviously emerges out a clear picture that right to compete for selection are circumscribed by the Bipartite Settlement. Despite such a situation, the appellant has ventilated his grievances against the impugned action of the respondent which emanated from Bipartite Settlement in terms of Act of 1947.

Hon''ble Apex Court in the Premier Automobiles Ltd. (supra) examined the issue relating to jurisdiction of civil court in relation to industrial disputes and propounded following principles:-

(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 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.

Lis involved in the present case is undoubtedly an industrial dispute, and therefore, Principles No. 3 and 4 enumerated hereinabove can be pressed into service to conclude that civil suit is barred by necessary implication.

Hon''ble Apex Court in Rajasthan State Road Transport Corporation and Another Vs. Krishna Kant and Others, AIR 1995 SC 1715 : (1995) 2 CTC 208 : (1995) 71 FLR 211 : (1995) 4 JT 348 : (1995) 2 LLJ 728 : (1995) 3 SCALE 440 : (1995) 5 SCC 75 : (1994) 1 SCC 268 Supp : (1995) 3 SCR 1118 : (1995) 2 UJ 318 , on which learned counsel for the appellant has placed heavy reliance, has explained and reiterated the principles enunciated in Premier Automobiles Ltd. (supra). The Court then thereafter summarized following principles:-

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 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 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.

Finally applying these principles, Hon''ble Apex Court held that the suits filed by the workmen in these appeals are not maintainable in law.

In Rajasthan SRTC and Others Vs. Mohar Singh, AIR 2008 SC 2553 : (2008) 3 CLT 124 : (2008) 117 FLR 1032 : (2009) 1 LLJ 149 : (2008) 7 SCALE 339 : (2008) 5 SCC 542 : (2008) 2 SCC(L&S) 290 : (2008) 3 SLJ 357 : (2008) AIRSCW 3567 : (2008) 3 Supreme 230 , yet again, Hon''ble Apex Court had occasion to examine jurisdiction of Civil Court under Section 9 CPC and held:

The decisions referred to hereinbefore clearly brings about a distinction which cannot be lost sight of. If a right is claimed under the Industrial Disputes Act or the sister laws, the jurisdiction of the civil court would be barred, but if no such right is claimed, civil court will have jurisdiction.

Three Judges Bench of Hon''ble Apex Court in case of Rajasthan State Road Transport Corporation and Another Vs. Bal Mukund Bairwa, (2009) 121 FLR 603 : (2009) 2 JT 423 : (2009) 3 LLJ 177 : (2009) 2 SCALE 428 : (2009) 4 SCC 299 : (2009) 1 SCC(L&S) 439 : (2009) 2 SCR 161 has observed that the question of jurisdiction is to be addressed, having regard to the facts of the case and rights and obligations, which are to be enforced for the purpose of invoking or excluding jurisdiction of civil Courts. The Court held:

A dispute arising in between an employer and employee may or may not be an industrial dispute. The dispute may be in relation to or arising out of a fundamental right of the employee, or his right under a Parliamentary Act and the regulations framed thereunder, and/or a right arising under the provisions of the Industrial Disputes Act or the sister laws and may relate to same or similar rights or different rights, or even may be based on common law right or contractual right. The question in regard to the jurisdiction of the civil court must, therefore, be addressed having regard to the fact as to which rights or obligations are sought to be enforced for the purpose of invoking or excluding the jurisdiction of a civil court.

The ratio decidendi of these judgments clearly applies to the instant case. The right or obligation of the appellant emanates from the bipartite settlement, which was a settlement between employee''s union and the employer.

In the latter verdict of Hon''ble Apex Court in R.S.R.T.C. and Others Vs. Deen Dayal Sharma, AIR 2010 SC 2662 : (2010) 126 FLR 407 : (2010) 5 SCALE 1 : (2010) 6 SCC 697 , after considering all the earlier judgments, same principles are reiterated.

Therefore viewed from any angle when precisely the appellant was debarred from competing in the selection process, as a consequence of embargo under the bipartite settlement, which was governing his service conditions and binding on him, he could not have any valid cause of grievance against the respondent employer. Moreover, in the facts and circumstances of the instant case, the order under challenge is outcome of the powers exercised by the employer under the bipartite settlement, therefore, the only course, which was opened for the appellant, was to seek appropriate remedy under the Act of 1947 and remedy of civil suit is, therefore, impliedly barred.

Taking into account all these aspects and considering the ratio decidendi of the judgments of Hon''ble Apex Court, referred to supra, both these substantial questions of law are required to be answered against the appellant and in favour of respondent-Bank. Therefore, both these questions are answered against the appellant by holding that against the impugned action of the respondent-Bank, appellant''s remedy of civil suit is barred by law and consequently it is not desirable to interfere with the impugned judgment and decree.

During the course of arguments, it is also brought to my notice that appellant has already retired from service of the Bank, therefore, even otherwise also the question now remained is academic only.

As two substantial questions of law have been adjudicated against the appellant, it is not desirable to examine the other questions of law and the appellant can very well be non-suited in this appeal solely for the reason that these questions have been answered against him.

Resultantly, this appeal fails and same is, hereby, dismissed.