Gujarat High Court
Chandrakant Tukaram Nikam vs Municipal Corporation Of The City Of ... on 27 September, 1990
Equivalent citations: (1991)1GLR282
JUDGMENT C.V. Jani, J.
1. Six different appellants have filed this six appeals against the same respondent, namely, the Municipal Corporation of the City of Ahmedabad, challenging almost the uniform judgment and decree of the learned City Civil Judge, 6th Court, Ahmedabad, dismissing the six different suits filed by them, on the ground of want of jurisdiction.
2. The different plaintiffs, who are the employees of the defendant-Corporation filed different suits for a declaration that the charge-sheet issued by the Deputy Municipal Commissioner, appointment of the Inquiry Officer, proceedings initiated by him, the show cause notice issued to the plaintiffs and the final order removing the plaintiffs from the employment, are mala, fide, illegal, punitive, against the principles of natural justice, without proper delegation of power, in colourable exercise of power, against the provisions of the Bombay Provincial Municipal Corporations Act, 1949, against the rules and regulations and procedure prescribed thereunder and against Articles 14 and 16 of the Constitution of India. The plaintiffs have challenged the termination order and the procedure followed by the Disciplinary Authority as being null and void and they have also sought a permanent injunction restraining the defendant-Corporation from taking any steps pursuant to the final order of termination. It is not necessary to go into the details of each individual case.
3. The defendant-Corporation contended in its written statement that the suit was barred by Section 487 of the BPMC Act, that the suit is barred because of the fact that the defendant-Corporation has already made an application under Section 33(2)(b) of the Industrial Disputes Act on 5-2-1987 and that the plaintiff is a workman as defined in the Industrial Disputes Act. It is not necessary to refer to the reply of the Corporation on factual aspect. In short, the defendant has contended mat the Civil Court has no jurisdiction to decide the dispute raised by the plaintiff as they can be eminently resolved under the provisions of the Industrial Disputes Act.
4. The learned Judge of the City Civil Court found that the plaintiff was a workman as defined in the Industrial Disputes Act, that the Civil Court could not grant the relief of reinstatement of a workman with back wages, that the relief of declaration prayed for by the plaintiff was impliedly a prayer for reinstatement that the plaintiff-workman can get such a relief under the Standing Order passed by the Municipal Corporation, and so, this question can be decided only by the Industrial Court, and not by the Civil Court. The learned Judge, therefore, dismissed the suits.
5. Mr. M.B. Gandhi, learned Advocate appearing for the appellant in each case, has submitted that if the authority issuing a charge-sheet, or passing the order of termination is not competent under the law, his order ex facie is null and void , and it is not necessary for the plaintiff to approach the Industrial Court for getting such a declaration. According to Mr. Gandhi the Deputy Commissioner, who initiated the inquiry proceedings and passed the order of termination was not competent under the provisions of the Bombay Provincial Municipal Corporations Act, 1949, to take any such action against the plaintiffs. Mr. Gandhi has referred to the provisions of Sections 53, 56, 67 and 68 of the said Act. Under Section 53, the power of appointing certain Municipal Officers vests in the Corporation, but the power of appointing other officers and servants vests in the Commissioner. As per explanation (1) to Section 56, the authority who is competent to make the appointment is also competent to impose the penalties specified in Sub-section (2) on the Municipal Officer or servant. As per Section 67(3) of the Act, subject to the approval or sanction of the Corporation or Standing Committee, and subject to the other limitations and conditions imposed by the Act, or by any other law, the entire executive power of the Corporation vests in the Commissioner, who can dispose of all questions relating to the services of the officers and servants and their pay, privileges and allowances. It is Mr. Gandhi's submission that it is only the Municipal Commissioner who can initiate the disciplinary proceedings against the Municipal employee and so, any order passed by the Deputy Municipal Commissioner in this regard would be null and void. So, according to Mr. Gandhi, the City Civil Court has erred in dismissing the suit on the ground that it had no jurisdiction to grant such a declaration.
6. The learned Counsel have cited the following authorities.
7. In the case of Sirsi Municipality by its President, Sirsi v. Cecelia Kom Francis Tellis , the cases of dismissal of an employee were classified into three categories:
(i) Master and servant relationship governed purely by the contract of employment which could not be specifically enforced by granting a declaration;
(ii) Relationship of master and servant under the Industrial Law which can provide for reinstatement;
(iii) The relationship of master and servant, who is in employment of the State or other Public or local authority or bodies created under the statute, a declaration of nullity in the case of termination or dismissal of a servant of the State or other local authorities or statutory bodies, can be granted by the Civil Court, or the High Court, but no such declaration can be granted in respect of termination of a private employee, even though such termination may be wholly wrongful or illegal.
8. In the case of Premier Automobiles Ltd v. Kamlakar Shantaram and Ors. , the disputes between an employer and an employee were classified into four categories in order to decide whether the Civil Court had jurisdiction to decide such dispute:
(i) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Industrial Disputes Act, the remedy lies only in the Civil Court;
(ii) If the dispute is an industrial dispute arising out of a right or liability under the general common law, and not under Industrial Disputes Act, the jurisdiction of the Civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedies thes for the relief which is competent to be granted in a particular case.
(iii) If the industrial dispute releates to the enforcement of a right or an obligation created under the Industrial Disputes Act, then the only remedy available to the suitor is to get an adjudication under the Act;
(iv) If the right which is sought to be enforced is a right created under the Industrial Disputes 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.
The Supreme Court observed that there would hardly be any disputes which will be an industrial dispute within the meaning of Section 2(k) of the I.D. Act and yet, would be one arising out of a right or liability under the general or common law only, and not under the Act. Such a contingency may arise in regard to the dismissal of the unsponsored workman which in view of the provisions of law contained in Section 2(A) of the Act, will be an industrial dispute, even though it may otherwise be an individual dispute. The Supreme Court observed that the Civil Court would have hardly an occasion to deal with the type of cases falling under the second category, as the cases of industrial disputes by and large are bound to be covered by the third category.
9. In Sukhdev Singh and Ors. v. Bhagatram Sardar Raghuvanshi and Anr., and other matters relating to O.N.G.C.L.I.C. and I.F.C. (O.N.G.C. v. Association of Class II Officers, O.N.G.C) , the principle was recognised that the employees of such Corporation have a statutory status unlike the ordinary contractual relationship of master and servant. It was, therefore, held that where a State or public authority dismisses an employee in violation of the mandatory procedural requirement, the Court may exercise jurisdiction to declare an act of dismissal to be a nullity.
10. Again in Ram Kumar v. State Haryana AIR 1987 SC 2043, the Supreme Court was of the opinion that the Civil Court and jurisdiction to entertain and try the suit filed by the Bus Conductor of the Haryana Roadways, challenging the legality of the order of termination.
11. In Municipal Corporation of the City of Ahmedabad and Anr. v. Jyotindra Hariprasad Mehta (1979) 20 GLR 90, a Division Bench of this Court after referring to the principles laid down in Premier Automobiles Ltd. (supra) held that an employee of the AhmedabadAIR 1975 SC 2338 Municipal Corporation filing a Civil Suit for a declaration that the order of termination of service on the ground that it was made in contravention of the Standing Order and in violation of Section 33(2)(b) of the Industrial Disputes Act, 1947 was not maintainable as the rights claimed by the plaintiff flowed directly from the Standing Orders made by the Ahmedabad Municipal Corporation. It was held that the plenary jurisdiction of the Civil Court to grant a declaration under Section 34 of the Specific Relief Act can be exercised if it has not been ousted by any other law like the Industrial Disputes Act. However, it was held that the plaintiffs claim for damages for wrongful termination of service by his employer was maintainable. So far as the grievance made by the plaintiff-Jyotindra H. Mehta regarding the violation of the principles of natural justice and mala fide nature of the order was concerned, it was held that the competent Court namely the Industrial Court which had jurisdiction to adjudicate upon the dispute regarding wrongful termination can also examine the contention based upon the violation of the principle of natural justice and also examine whether the order of termination was mala fide as the Civil Court alone does not have the jurisdiction to deal with the question of mala fide or violation of principles of natural justice. The Division Bench, therefore, answered the reference made by the learned single Judge by laying down the proposition that if a worker claims a right to continue in service by virtue of the Standing Orders framed under the provisions of the Industrial Employment (Standing Orders) Act, 1946, he is claiming right under the Industrial Disputes Act, 1947 and the jurisdiction of the Civil Court to deal with such a question is by necessary implication barred except where the plaintiff claims damages for wrongful termination of the service by his employer arising out of the relationship of the master and servant between him and his employer.
12. In K.S.R.T.C. and Anr. v. Aron II reported 1983(47) Fac. LR 88 the Karnataka High Court after referring to the principles laid down by the Supreme Court in the case of Premier Automobiles Ltd. and Sirsi Municipality (supra) held that a suit filed by the Bus Driver of Mysore State Road Transport Corporation, who had been discharged from service by the Deputy General Manager, for a declaration that the order of punishment was null and void, being without jurisdiction, was competent, as such a suit arises out of the general law of the land and there was no prayer for reinstatement.
The six appellants before me are the employees of the Statutory Corporation created under the Bombay Provincial Municipal Corporations Act, 1949, and they were appointed as such by the Municipal Commissioner under Sub-section (3) of Section 53 of the said Act. Mr. Gandhi rightly relied on Explanation 1 to Section 56 in order to show that the Municipal Commissioner is the authority competent to take disciplinary action and to impose resultant punishment. According to Mr. Gandhi, the Deputy Municipal Commissioner who has initiated the proceedings and passed the order of termination in all the six cases was not competent to do so. Mr. M.R. Anand and Mr. S.P. Tanna, learned Advocates appearing for the respondents, submit that under Section 49(1) of the Bombay Provincial Municipal Corporations Act, 1949 the Deputy Municipal Commissioner can exercise such of the powers as the Commissioner may from time to time depute to him, and that the Commissioner has already passed the resolution or orders deputing his powers to conduct disciplinary inquiries to the Deputy Municipal Commissioner. No such order or resolution regarding the deputation seems to have been produced before the trial Court. So, it is a question of fact whether the Commissioner had deputed his powers to conduct a disciplinary inquiry against the appellants to the Deputy Municipal Commissioner. Unless this fact is ascertained, it cannot be said that the Civil Suits filed by the appellants for a declaration that the disciplinary proceedings taken against them is null and void, are not maintainable.
13. It appears from the judgment of the trial Court that the Municipal Corporation has passed the Standing Orders regarding employment of Municipal employees. Irrespective of the Standing Orders, the Civil Court can always examine whether the disciplinary or penal order has been passed by the competent authority, and if it is not so passed, whether it can be declared as null and void. For making such a declaratiton the Court is not required to examine the provisions of the Standing Orders. So such a suit for declaration is not based on the Standing Orders made by the Ahmedabad Municipal Corporations Act, and the employees need not have approached the Industrial Court for getting such a declaration. It may be possible that the Civil Court may find after the examination of facts that the Deputy Municipal Commissioner was competent to take such a disciplinary action or to pass orders of termination, and in that case, the suits may fail on merits, but without examining that aspect, the Civil Court cannot dismiss the suit outright on the ground that the Civil Court's jurisdiction is impliedly barred.
14. So far as the plaintiffs' grievance regarding appointment of Inquiry officer, illegality of the show cause notice and mala fide nature of the proceedings is concerned, it would clearly be covered by the Standing Orders specially made--by the Ahmedabad Municipal Corporation as per Division Bench Judgment in (1979) 20 GLR 90, and so, the Civil Court will have no jurisdiction to examine such a grievance.
As has been observed by the Supreme Court in Jitendra Nath Biswas v. Empire of India and Ceylon Tea Co. and Anr. the Industrial Disputes Act, not only confers a right on the worker for reinstatement and back wages if the order of termination or dismissal is not in accordance with the Standing Order, but also, provides a detailed procedure and machinery for getting such relief and there is an apparent implied exclusion of the jurisdiction of the Civil Court to grant such relief. The appellants are having a statutory status, and they are not governed purely by contract of employment for personal service nor purely by Industrial Law, and, therefore, they can always seek a declaration that the orders of termination of their services were null and void, having been passed by an authority without competence. But, so far as the procedural part of disciplinary inquiry is concerned, it would be governed by the Standing Orders and the jurisdiction of the Civil Court to enter into such questions would be impliedly barred.
15. In view of the above position, Mr. Gandhi for the appellants was pointedly asked whether he would not choose to get a complete relief in all respects under the Industrial Disputes Act, but Mr. Gandhi insisted that the Civil Court should not hesitate to grant the relief of declaration if it finds that the disciplinary proceedings were initiated and the termination order was passed by the authority who was not competent under the Bombay Provincial Municipal Corporation Act.
The result is that the judgments and decrees delivered by the learned City Civil Judge, 6th Court, Ahmedabad in Civil Suit No. 6208 of 1986, Civil Suit No. 1974 of 1985, Civil Suit No. 6882 of 1986, Civil Suit No. 716 of 1987, Civil Suit No. 109 of 1987, and Civil Suit No. 1413 of 1985, are set aside. The matters are remanded to the City Civil Court for considering whether the declaration prayed for by the plaintiffs can be granted on the ground of want of competence on the part of the Deputy Municipal Commissioner.
16. The City Civil Court will have to examine whether the Deputy commissioner who has initited the disciplinary proceedings and passed the penal orders was competent to do so, under the provisions of the B.P.M.C. Act, and then grant or refuse the relief of declaration sought for by the appellants. If the Court comes to the conclusion that the Deputy Municipal Commissioner was competent to pass such orders, it will dismiss the suits and direct the appellants to get the necessary other reliefs from the Industrial Court.
The hearing of the suits will be expedited.
The appeals are, therefore, allowed accordingly, with no order as to costs.