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T.N. Vallinayagam, J.-This civil revision petition arise out of injunction granted against the Karnataka State Road Transport Corporation, the petitioner herein restraining them from changing the normal working hours prescribed for employees granted by the Trial Court and confirmed by the first Appellate Court. The Karnataka State Road Transport Corporation is aggrieved by such an order preferred the above civil revision petition.
The suit was one for declaration that the circular issued by the petitioner-Corporation dated 28-10-1997 was contrary to the settlement dated 16-2-1978 and for consequential injunction restraining the defendant/petitioner herein from acting upon the impugned circular.
It is claimed by the respondents that there is no settlement, forcing the petitioner to change the timings. Clause 19(1) of the settlement dated 17-7-1989 only prescribe the monitory benefits to the employees who works beyond eight hours. But it did not authorise the management to change the working hours for any of the categories of the employees unilaterally. Such contention was resisted by the management, putting forth the plea that the impugned order/circular is according to law. The implementation of the circular was given effect to from 3-11-1997 and all the employees were attending office in compliance of the same. The respondents herein are workmen of the petitioner-organisation/Corporation, which is an Industry under the Industrial Disputes Act. The dispute raised by the respondents herein is an industrial dispute. Said dispute is covered by the said Act. Consequently, the suit is not maintainable. In fact, the petitioner-Corporation has been established under the Road Transport Corporations Act, 1950 and the Corporation is a State within the meaning of Article 12 of the Constitution of India.
The Trial Court took into consideration the principles laid down in (1995)2 CLR 180 (SC), to the effect that where reliefs were claimed on the basis of the general law of contract, the suit is not maintainable, even though such dispute may also constitute an industrial dispute, within the meaning of Section 2(k) or 2(a) of the Industrial Disputes Act, 1947. But, however, the dispute involved 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.
In another decision reported in Mohammad Din and Others v Imam Din and Another, AIR 1948 PC 33, the power of the Civil Courts to entertain the suits where the question is whether the executive authority has acted ultra vires or not, has been upheld. In Abdulla Bin Ali and Others v Galappa and Others, AIR 1985 SC 577, the principles initiated was that the jurisdiction does not depend upon the defence taken by the defendants in their written statement. In Subrao v Bhupal Dasharath Katte and Others, AIR 1959 Mys. 129, the proposition laid down was.-
"Although a Civil Court cannot convert itself into a Court of appeal and assume jurisdiction to set aside an order passed by a Revenue Officer, it has jurisdiction to determine whether an order purporting to be of a particular kind conforms to the requirements of law empowering such an order to be made".
The Trial Court also considered the submissions of the petitioner herein as laid down in V. Mookan v Branch Manager, 1988(3) Kar. L.J. Sh. N. 16, to the following effect.-
"As a transfer mala fide is stated to be an unfair labour practice, the workman has got a remedy in the form created under the Industrial Disputes Act and when this is the case which should go before the forum established under Special enactment, the jurisdiction of the Civil Courts is impliedly barred", and also the decision in Ajmer Kaur and Others v Punjab State and Others, AIR 1991 P and H 12, wherein that Court has held that the suit is barred under statute proper order is to reject plaint and not to return it.
Taking into consideration, the above decisions for and against, the Trial Court considering Section 2(p) and also Section 19(1) and (2) of the Industrial Disputes Act, came to the conclusion that this impugned circular is without any authority, as the petitioner has not produced any memorandum of settlement showing that the working hours of the employees referred to at Serial No. 6 of Annexure-A to the Memorandum of settlement showing that the working hours of the employees has been increased from seven hours to eight hours and granted injunction restraining the petitioner herein from effecting the said circular.
The first Appellate Court confirmed the finding rendered by the Trial Court. According to the Appellate Court, as per Clause 12 of the bilateral settlement dated 16-2-1978, the working hours has been fixed for the above mentioned employees. The respondent claimed that their working hours are governed by item 6 in Statement I. While the petitioner herein claimed that the respondents employees for whom, the Entry 7 in settlement/Statement 3 applies. Considering Annexure-A and Statement I to the settlement dated 16-2-1978, the Appellate Court held that the working hour of the respondents are not governed by Entry 7 in Statement 3. It is further held that the respondent are the employees working under the administrative office attached to the regional workshops at Hubli to whom, the Entry 6 of Statement I in Annexure-A to the settlement dated 16-2-1978 is applicable. Entry 6 in Settlement I in Annexure-A reads thus.- Annexure-A
Statement I Central offices, Administrative offices of divisions including Administrative offices of Regional Workshops, Central Stores.
Sl. No. Category of staff Labour enactment applicable to them Working hours prescribed under the Act Normal working hours prescribed by the management per day Rate of overtime wages Remarks
Clerk, Receptionist, Comptist, Tracer, Cashier (Junior), Typist, Cashier-cum-Clerks, Clerk knowing typing, Junior Assistant, Assistant Accountant, Statistics Assistant, Assistant Storekeeper, Steno (Junior), Senior Cashier
Karnataka Shops and Commercial Establishment Act and Rules thereunder 9 hours a day and 48 hours a week 7 hours including half-an-hour rest interval Twice the ordinary rate of wages Overtime wages to be paid for any work done beyond 7 hours duty with half-an-hour rest interval in the middle. However, the O.T. work should not be extracted for more than 50 hours in a period of three continuous months
The Appellate Court also distinguished the dictum of M.B. Byregowda and Others v Managing Director, K.S.R.T.C. and Others, ILR 1997 Kar. 368 and rejected the contention that Factories Act, 1948 applicable to the employees of the concerned, whose cause the respondents are fighting this matter. Ultimately, the Appellate Court opined that till the change is brought about by any settlement in the working hours of the concerned employees, the petitioner has no authority to change the working hours of the concerned employees unilaterally in the pretext that the changes for the period less than that is provided by the enactment applicable to the concerned employees.
The Appellate Court also took into consideration the following rulings.-
(i) The Premier Automobiles Limited v Kamlakar Shantharam Wadke and Others, AIR 1975 SC 2238, to the following effect.-
"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 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 VVA then the remedy for its enforcement is either Section 33-C or the raising of an industrial dispute, as the case may be".
In the ruling in The Nippani Electricity Company (Private) Limited v Bhimarao Laxman Patil and Others, 1968(2) Mys. L.J. 194, is to the following effect.-
"Industrial Disputes Act not only confers the right on a worker for reinstatement and back wages if the order of termination or 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 to grant such relief. The scheme of the Industrial Disputes Act clearly excludes the jurisdiction of the Civil Court by implication in respect of remedies which are available under the Act and for which a complete procedure and machinery has been provided in the Industrial Disputes Act. In view of language of Section 10 read with Section 12(5) of the Industrial Disputes Act adequate remedy is available to the worker under the scheme of the Industrial Disputes Act itself which is the Act which provides for the relief of reinstatement and backwages. The remedy under Industrial Disputes Act cannot be said to be discretionary. The suit for declaration that dismissal of the plaintiff from service was bad and void, for back wages and for injunction preventing the employer from giving effect to the order or dismissal in substance a suit for the relief of reinstatement and back wages and is therefore not maintainable before Civil Court".
After elaborating discussion, the first Appellate Court confirmed the order of the Trial Court.
Now, in the revision, it is contended that the suit could not be maintained to ventilate industrial grievances, which is excluded from the jurisdiction of the Civil Court under Section 9 of the CPC. The employees in question are the ministerial staff posted and working at Regional Workshop at Hubli. There is an error of fact committed by the Courts below. Recourse were sought for by the very union in W.P. Nos. 5897 of 1995 and 5950 of 1995 and 622 of 1992, challenging the similar circular issued at earlier point of time. The above writ petitions having been dismissed by the High Court, the respondent''s claim was no longer res integra and therefore, the Courts below were unjustified in entertaining the suit on a matter already concluded by a decision of the High Court. Additionally, the very question whether administrative staff working in Regional workshop are governed by the settlement of the year 1978 and had been conclusively determined in a decision of the High Court in M.B. Byregowda''s case, supra. In the face of these authorities, the Courts below acted contumaciously in reaching a conclusion inconsistent with those of the High Court of Karnataka. The High Court has clearly pronounced upon the issue and has held that all ministerial employees working at Regional workshops and such other establishments covered by the Factories Act were indeed liable to discharge work for eight hours a day in accordance with the settlement. In the wake of this pronouncement, it was impermissible for the Courts below to suspend a circular issued on the same terms as the one in question in the writ proceedings. The statement given by the workman or who was called upon to explain the status of the employees of the union and who clarified as those working in the administrative capacity at Regional workshops, has been misunderstood and distorted by the Courts below. It should have been seen that there are no separate administrative offices in the Regional workshops and the statement of the Courts below is therefore without any foundation or basis. It was incumbent upon the lower Appellate Court to have based its findings upon the pleadings and arguments in the case and the procedure in basing his conclusion on an alleged distorted statement of an officer of the Corporation is highly to be deprecated.
The judgment of this Court in W.P. No. 622 of 1992 disposed on 20-9-1996 and decision of Division Bench of this Court in Writ Appeal Nos. 704 to 790 of 1996 connected with Writ Appeal Nos. 4286 to 4337 of 1995, disposed on 29-7-1997 were relied upon. The petitioner also relied upon the dictum of The Rajasthan State Road Transport Corporation and Another v Krishna Kant and Others, AIR 1995 SC 1715, A.P. Nagaraj v V.R. Krishna, 1996(5) Kar. L.J. 421 and B. Narayana Swamy v The Assistant Executive Engineer Electrical, KEB and Another, ILR 1999 Kar. 1665.
Heard the respective Counsel.
The first question that arise for consideration is whether a circular issued by the management concerning the working hours of its employees can be questioned by the affected parties, namely, the employees of the said management in a Civil Court?
On the question of maintainability of the suit, the earlier authorities relied upon is that of Privy Council in Mohammad Din''s case, supra. The principles laid down therein is that the Civil Court has power to entertain the suits where the question is whether the executive authorities has acted ultra vires or not. This may not strictly apply to the facts of this case. Subrao''s case, supra has made the distinguish to the effect that a Civil Court cannot convert itself into a Court of appeal and assume the jurisdiction to set aside the order passed by revenue authority/officer. But it has jurisdiction to intervene where an order purporting to be a particular kind conforms to the requirements of law empowering such an order to be made. The dictum in Abdulla Bin Ali''s case makes it clear that it is averments made in the plaint that decide the jurisdiction and not otherwise. The Nippani Electricity Company (Private) Limited'' case, supra, it is held that the dispute is triable by the Industrial Dispute Tribunal cannot be tried by Civil Court. When jurisdiction is excluded and the Civil Court cannot entertain the same. In Dhulabhai v State of Madhya Pradesh and Another, AIR 1969 SC 78, seven propositions of law regarding exclusion of jurisdiction of Civil Court laid down by the Supreme Court as follows.-
(a) Where the statute gives finality to the orders of the Special Tribunals the Civil Court''s jurisdiction must be held to be excluded if there is a adequate remedy to do what Civil Court normally do in a suit. Such provision, however, does not exclude more cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in confirmity with fundamental principles of judicial procedure.
(b) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court. Where there is no exclusion, the examination becomes necessary to find out the intendment and the result of the enquiry may be decisive. In the latter case it is a necessary to see if the statute creates a special right or a liability and provides for its determination and further lays down that all questions about the said right or liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed.
(c) Challenge to provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act, even the High Court cannot go into that question on revision or reference from the decision of the Tribunal.
(d) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is tenable.
(e) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit would lie.
(f) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.
(g) An exclusion of jurisdiction of Civil Court is not readily to be inferred unless conditions set down above apply.
Normally, where a special remedies are provided, general remedial suit is barred. AIR 1979 SC 125 and Chigurupati Venkata Subbayya and Others v Paladugu Anjayya and Others, AIR 1972 SC 1421. In The Premier Automobiles Limited''s, case, the Supreme Court laid down four principles applicable to jurisdiction of Civil Court in relation to an industrial dispute. Again, when a right is newly created under a statute and special procedure is prescribed under that statute itself for its enforcement and when finality to that procedure is intended, the jurisdiction of the Court is impliedly barred. Khadi and Village Industries Commission, Bombay v N.S. Pai, AIR 1976 Kant. 85 (DB). The dictum laid down in V. Mookan''s case, is certainly holds that the Civil Courts jurisdiction is impliedly barred when a remedy is available in the forum under Industrial Disputes Act.
In Krishna Kant''s, case, supra, the case was between employer and employee of the Rajasthan Road Transport Corporation pursuant to disciplinary enquiries were held against them on charges of misconduct, their services were terminated. They filed civil suit for a declaration that the order terminating their services is illegal and invalid and that they must be deemed to have continued. Though, the jurisdiction of the Civil Court was resisted by the Corporation, the Trial Court, Appellate Court as well as the High Court upheld the jurisdiction of the Civil Court. When this appeal was taken up by the Supreme Court, noting the conflicting view regarding the jurisdiction of the Civil Court to entertain a civil suit between the Premier Automobiles Limited''s case and another case decided in S.L.P. No. 9386 of 1988, the matter was placed before the larger Bench and the Bench ultimately laid down the principles referred to above and repeated here for the purpose of convenience, in para 32, the Supreme Court-Larger Bench, held that the Civil Court has no jurisdiction to entertain such a suit. The Supreme Court held as follows.-
(1) Where the dispute arises from general law of contract, i.e., where relief 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 and "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 ex facie 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 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 un-encumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to Civil Courts. Indeed, the powers of the Courts and Tribunal under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they thing appropriate in the circumstances for putting an end to an industrial dispute".
The Supreme Court in the above case also directed that the principles enhanciated in this judgment shall apply to all pending matters and thus, they laid down the law. However, the Trial Court appears to have been influenced by the principles at Clause 6 mentioned above namely, "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 therein".
Reliance was also placed by the revision petitioner in the case reported in B. Narayana Swamy''s case, supra, wherein I have considered the exclusion of the jurisdiction of the Civil Court in a matter for which the specific provisions provided for under the Electricity Act, 1910. The Trial Court while considering the submission made regarding the jurisdiction has distinguished the case of the Jitendra Nath Biswas v M/s. Empire of India and Ceylone Tea Company, AIR 1990 SC 255, which was considered by the Supreme Court in Krishna Kant''s case and considering that the Supreme Court has held that the Civil Court has no jurisdiction.
It is also seen that the respondent herein made a representation on 18-11-1997 to the Assistant Labour Commissioner and Conciliation Officer, Dharwad Division, Hubli in respect of the issues involved in the present suit. The Assistant Labour Commissioner issued notice to the present respondents on 20-11-1997. However, the Labour Commissioner closed the proceedings referring to the pendency of the dispute before the Civil Court. The Labour Commissioner did not go into the question as to whether the Civil Court has jurisdiction or not. The Trial Court also relied upon the Privy Council decision to the effect that the authorities had got the power to consider whether the petitioner has power to issue such a circular and whether they have acted ultra vires or not. Application of this decision of the Privy Council is not correct and it has no relevance. It is nobody case that the action of the petitioner is ultra vires. But, it is their case that they have violated the settlement arrived at between the parties. The fact that they have got the power to regulate their workmen cannot be taken away nor could their power be curbed. They have jurisdiction and power to carry out their task and only if they are violative of any conditions of the services of the agreement, then, the proper forum would be the Industrial Tribunal and not a Civil Court. The Trial Court wrongly applied Clause 6 referred to above in Rajasthan R.T.C. case and came to the conclusion that the Civil Court has got jurisdiction.
The Appellate Court considering the principles laid down came to the conclusion that the dispute arose out of general liability under the general and common law or in pursuance of the settlement between the workmen and the management and therefore, plaintiff had option either to approach the Civil Court or Industrial Dispute Tribunal for an appropriate remedy.
In the light of the dictum of Supreme Court in Rajasthan Road Transport Corporation, the view of the Appellate Court is also is not correct. It has to be seen the conduct of the parties prior to coming to the Civil Court. The validity of such circular issued on 22-4-1991 and 5-8-1991 were challenged in writ proceedings before this Court in W.P. No. 622 of 1992 and the Single Judge of this Court has held that the workmen are governed by the provisions of the Factories Act not only because the settlement executed on their behalf with the management stipulates so but also because the establishments where they are actually working are registered as factories under the Factories Act. The learned Single Judge did not find any irregularity in fixing the number of hours of work as being violative of any of the provisions of the Factories Act, 1948. On the question whether there is any existing right for the workman, the Division Bench of this Court felt that such right was also rightly negatived in view of the settlement reached by the parties and that appropriate procedure had been followed as provided under the Industrial Disputes Act in fixing such working hours. On the question of whether M.G.R.T.O. orders or B.T.S. orders is applied, this Court considered and found that the increase in the number of working hours from six and half hours to eight hours a day does not in any manner violate the statutory maximum provided by Section 54 of the Factories Act. On the question whether there was any discrimination in having different number of working hours in different establishments, the learned Judge noticed that considering the nature of the work done in different establishments, the exigencies of such work the necessity to fix longer hours than the one prescribed for other employees in other establishment will be relevant and it was further held that there was no discrimination arising in this case either. This view of the learned Single Judge of this Court was confirmed by the Division Bench in W.P. Nos. 704 to 790 of 1996 consisting of Mr. Justice, S. Rajendra Babu and Mr. Justice H. Rangavittalachar, disposed of on 29-7-1997. The Bench also referred the various decisions of the Supreme Court with reference to the number of working hours namely (i) May and Baker India Limited v Their Workmen, 1961-II-LLJ-94 (SC); (ii) Workmen of British Overseas Airways Corporation, New Delhi v British Overseas Airways Corporation, New Delhi, 1962-I-LLJ-257 (SC); (iii) Karamchand Thaper and Brothers Limited v Their Workmen, 1964-I-LLJ-429 (SC); (iv) Remington Rand of India Limited v Their Workmen, AIR 1968 SC 224; (v) The Oil and Natural Gas Commission v The Workmen, AIR 1973 SC 968. Following the above decisions, the Bench held:
"Thus, a survey of various decisions of the Supreme Court reveal that the growth of industry in the present century has focussed attention on the need for statutory intervention for protecting the wage earners against excessive hours of work and the wage is undoubtedly related to production and health of workers. Hours of work are regulated by law but issues about the same could also become subject-matter of industrial dispute. To the point of hours of work are related other problems also, such as, overtime, allowance for overtime, reduction and increase of hours of work, minimum wage etc. The Legislature provides for the minimum norms but beyond those norms it is open to the parties by collective bargaining or adjudication, to get the desirable social standards accepted and these standards have got to reconcile and equate the conflicting claims of industry which calls for higher and greater productivity and labour which clamours for more leisure and rest on the one hand and increased remuneration on the other".
The Division Bench further observed:
"The Supreme Court observed that the growing realisation of need for better distribution of national wealth has also given an understanding of the need for increase in production as an essential pre-requisite of which greater efforts on the part of labour force are necessary. That itself is sufficient reason against accepting the argument against any change in working hours is found justified on relevant considerations".
In the light of the decision of the Division Bench of this Court, it is also clear not only that the parties themselves did not chose to go to the Civil Court earlier and therefore, the conduct is more important in choosing the formalities as rightly held in one of the decision referred to above. In any event, this issue regarding the working hours have been settled by the Division Bench of this Court in the aforesaid decision and it is certainly not open to the workmen respondents herein to reiterate the same when the next chance came.
In the light of the above discussion, I am of the view that the Civil Court has no jurisdiction to entertain the suit and much less the grant of injunction in the way it has been granted by the Trial Court. As found above, factually also it is seen that the workmen themselves approached the authorities constituted under the Industrial Dispute Regulations and therefore, they cannot appropriate or repropriate and then resort to the Civil Court for their alleged remedies.
In the light of the discussion made above, following the dictum of Supreme Court in Rajasthan Road Transport Corporation, I hold that the suit filed by the respondents herein is not maintainable and consequently, the civil revision petition is allowed. The order passed by the Courts below are set aside. In the circumstances of the case, no order as to costs.