Gujarat High Court
Chandrakant Tukaram Nikam vs Municipal Corporation Of Ahmedabad on 26 June, 1992
Equivalent citations: (1993)1GLR684, (1994)ILLJ453GUJ
JUDGMENT SHAH, J.
1. These Letters Patent Appeals are, directed against the common judgment and order of learned single Judge in six appeals dated September 27, 1990 partially allowing the first appeals and substantially confirming the judgment and decree passed by learned City Civil Judge, Ahmedabad in Civil Suits filed by the appellants-workmen against the respondent-Ahmedabad Municipal Corporation challenging the orders of dismissal/removal from service. The learned single Judge has substantially confirmed the judgment and decree passed by the trial Court holding that its jurisdiction is barred to enter into and decide question raised in the suits filed by the workmen against their employer-Ahmedabad Municipal Corporation. However, the learned single Judge quashed and set aside the judgments and decree passed by the trial Court on limited issue and has remanded the matters to the City Civil Court for considering whether declaration prayed for by each workman in the suit could be granted on the ground of want of competence on the part of Deputy Municipal Commissioner to initiate inquiry, to frame charge-sheet and to appoint Inquiry Officer.
2. Being aggrieved by that part of the judgment of the learned single Judge whereby he has held that the nature of disputes raised in each suit and the reliefs prayed for from the Court were such that they could be granted by Court/Tribunal established under Industrial Disputes Act and the jurisdiction of the Civil Court to that extent was impliedly barred, the appellants-workmen have preferred the aforesaid Letters Patent Appeals, while Ahmedabad Municipal Corporation has filed cross-objections challenging that part of the judgment and decree of the learned single Judge whereby he has quashed and set aside the judgment and decree passed by the learned City Civil Judge and has remanded the matter to the City Civil Court for deciding as to whether declaration prayed for by each of the workmen can be granted on the ground of want of competence on the part of the Deputy Municipal Commissioner to initiate the inquiry and to pass the order of dismissal/removal.
3. Since six Letters Patent Appeals and cross-objections filed therein by respondent-Ahmed-abad Municipal Corporation are directed against the common judgment and order of the learned single Judge dated September 27, 1990 and since important common question of law as to the jurisdiction of the Civil Court in relation to 'industrial disputes' is raised, the same are heard together and are disposed of by this common judgment.
4. In order to properly appreciate the common question of law as to the jurisdiction of the Civil Court raised in these group of Letters Patent Appeals, it is necessary to set out the relevant facts. We propose to divide these Letters Patent Appeals in two groups:
1. L.P.A. Nos. 24, 26 and 29 of 1991, which are filed by appellants, who happen to be employees of Ahmedabad Municipal Corporation serving in Fire Brigade Department as Head Clerk, in Accounts Department and as Junior Clerks in Health Department respectively, and
2. L.P.A. Nos. 25, 27 and 28 of 1991, which are filed by appellants- workmen who happen to the employees of Ahmedabad Municipal Transport Service, duly constituted and established under Bombay Provicial Municipal Corporation Act, 1949.
5. The appellants of the second group are admittedly covered by Standing Orders framed by Ahmedabad Municipal Corporation in exercise of its power under Section 466 of the said Act and duly notified and approved by the authority under the provisions of Employment Standing Order Act, 1946. On the other hand appellants/workmen of the first category arc the workmen of Ahmedabad Municipal Corporation for whom admittedly no Standing Orders are framed and notified. With respect to such appellant/ workman the stand of the respondent-Municipal Corporation is that in absence of any Standing Orders framed by it, such employees are covered by Model Standing Orders framed under Industrial Employment (Standing Orders) Act, 1946 and, therefore, we proposed to deal with these two groups of appeal separately inasmuch as controversy about jurisdiction of the Civil Suit in the first category is sought to be placed on higher pedestal than the one about the rights of the workmen belonging to the second category, wherein admittedly the Standing Orders framed by Ahmedabad Municipal Transport Service hold the field.
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7. It is not disputed before us in these groups of appeal that the appellants are workmen within the meaning of Section 2(s) of the Industrial Disputes Act and it is also not disputed that various challenges to the order of dismissal/removal from service on diverse grounds raised by the appellant-workman may fall within the definition of "Industrial Dispute" as defined by Section 2(k) of the Industrial Disputes Act. It is also an admitted fact before us in this first category of appeals that Ahmedabad Municipal Corporation has not framed any Standing Orders with respect to the employees of Ahmedabad Municipal Corporation. While according to appellant-workman, the procedure prescribed by the Rules and Regulations framed by the Ahmedabad Municipal Corporation in exercise of its power conferred by Section 465 of B.P.M.C. Act is required to be followed, according to respondent-Corporation, the provisions of Model Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946 shall have to be followed.
8. The non-compliance with the Rules and Regulations framed under Section 465 of the Act by the respondent-Corporation or failure to follow the procedure prescribed by the Rules and Regulations framed by the Corporation gives rise to a common law/general law remedy in favour of appellant-workman over and above the remedy of seeking a reference of the dispute to the appropriate forum under the Industrial Disputes Act and hence Civil Suit for enforcement of such common law/general law right is maintainable.
9. On the other hand, the respondent-Corporation submits that once the relationship of employer and workman is established and existence of industrial dispute is admitted by the appellant-workman and when challenge centres round the order of dismissal/removal consequently claiming the relief of reinstatement and backwages, the remedy is under the Industrial Disputes Act and by necessary implication the jurisdiction of the Civil Court is excluded.
12. The submission of appellants-workmen in these groups of appeals is that though they are "workman" within the meaning of Section 2(s) of the Industrial Disputes Act and though they are governed by the Standing Orders framed by Ahmedabad Municipal Corporation and though challenge to the order of dismissal passed against them may amount to raising industrial disputes as defined by Section 2(k) of the said Act, they have remedy at common law/general law to challenge the aforesaid orders on the ground that the procedure prescribed by the Rules and Regulations framed under Section 455 of B.P. M.C. Act is not followed by the respondent-Corporation and also on the ground that rules of natural justice were not followed by the respondent-Corporation while holding departmental enquiry and, therefore, according to appellants-workmen they have option to choose between two competent forum, viz., the Civil Court and Industrial Tribunal/Labour Court under the Industrial Disputes Act and, therefore, suits instituted by them in the City Civil Court at Ahmedabad were within the jurisdiction of the Court under Section 9 of the Code of Civil Procedure.
13. On the other hand, respondent-Corporation submits that the relationship between the parties is that of employer and workman and the dispute raised in the suit was purely an "Industrial Dispute" as defined by Section 2(k) of the said Act and the appellants-workmen were governed by the Standing Orders framed by respondent-Corporation and, therefore, for any complaint about non-compliance with the Standing Order or breach thereof, the only remedy of the appellants-workmen is that of raising "Industrial Disputes" and going to the Industrial Court under the Industrial Disputes Act.
16. In order to appreciate the rival submissions of the parties, it is necessary to examine Section 9 of the Civil Procedure Code and the scheme of the Industrial Disputes Act, 1947 read with the provisions of the Industrial Employment (Standing Orders) Act, 1946, to determine as to which Court will have jurisdiction to decide the disputes of the nature raised in these appeals.
17. Section 9 of the Code of Civil Procedure inter alia reads as under:
"9. The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred."
The jurisdiction of the Civil Court under the aforesaid section is very wide and unless it is expressly or by necessary implication excluded, exclusion of jurisdiction of the Civil Court is not readily to be inferred. The jurisdiction of the Civil Court is all embracing except to the extent it is excluded by an express provision of law or by clear indentment arising from such law.
This is the purport of Section 9 of the Code of Civil Procedure.
18. The Industrial Disputes Act, 1947 is the main statute dealing with the rights of a workman vis-a-vis the employer. Section 2(k) of the said Act defines industrial dispute as under:
"2(k) "Industrial dispute" means any dispute or difference between employers and employers 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."
Section 2(s) defines "workman" as under:
"2(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be expressed or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act 1957 (62 of 1957), or
(ii) who is employed in the police service or as an officer or other employee of a prison,or
(iii) who is employed mainly in a managerial or administrative capacity, or
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
Section 2(g) defines "employer" to mean in relation to an industry carried on by or on behalf of a local authority, the Chief Executive Officer of that authority.
19. From the aforesaid definitions of 'workman' and 'employer', it becomes clear that the appellants indisputably are workmen of respondent Corporation, which is indisputably the 'employer' within the meaning of Section 2(g) of the said Act. From the definition of "industrial dispute" as given by Section 2(k), there is no manner of doubt and it is not disputed before us that dispute about dismissal/removal or discharge from service between the workman and the employer would squarely fall within the definition of "industrial dispute" as defined by Section 2(k) of the said Act.
20. Section 7 of the Industrial Disputes Act, 1947 provides for the jurisdiction of the special Court. Sub-section (1) of Section 7 provides:
Section 7(1) The appropriate Government may, by notification in the Official Gazette, constitute one or more Labour Courts for the adjudication of industrial disputes relating to any matter specified in the Second Schedule and for performing such other functions as may be assigned to them under this Act."
21. It becomes clear from the aforesaid Section that for the adjudication of the industrial dispute relating to any matters specified in the Second Schedule, Labour Courts can be constituted. Reference to various items mentioned in the Second Schedule of the said Act would enable the Court to determine the area of operation or jurisdiction of Labour Court. Some of the items in the Second Schedule being relevant are reproduced hereunder:
"Item-1: The propriety or legality of an order passed by an employer under the Standing Orders.
Item-2: The application and interpretation of Standing Orders.
Item-3: Discharge or dismissal of workman including reinstatement of or grant of relief to workmen wrongfully dismissed."
22. From reproduction of the aforesaid three items of Second Schedule, it becomes clear that prima facie the dispute about wrongful or illegal dismissal, discharge or removal from the services of an individual workman or unlawful or wrongful termination of his services gives rise to an industrial dispute. It also becomes clear that when the workman alleges impropriety or illegality of an order passed by the employer under Standing Orders or where the question arises as to whether the provisions of Standing Orders are followed or not, they give rise to 'industrial dispute'. Such 'industrial dispute' can be tried by the Special Court established and constituted under Section 7 of the Industrial Disputes Act, 1947.
23. It may be stated that even if the dispute is raised by an individual workman, by virtue of Section 2A which came to be inserted in the Industrial Disputes Act in 1965, it is now provided that where an employer discharges, dismisses or otherwise terminates the services of an individual workman, any dispute or difference of that workman and his employer connected with his dismissal or discharge shall be deemed to be an "industrial dispute" and, therefore, an individual workman cannot make grievance on that count.
24. Once the order of dismissal, removal or discharge from service is passed by the employer against the workman and challenge to the said order by the workman gives rise to an industrial dispute, the question is as to whether the effective remedy for adjudication of such dispute is provided by the Industrial Disputes Act, 1947. Section 10 of the Industrial Disputes Act, 1947 deals with 'Reference of Disputes' to Boards, Courts or Tribunals and Section 10A of the said Act deals with Voluntary reference of disputes to arbitration. It is very clear that the disputes can be taken up by conciliation officer under Section 12 of the said Act. When the conciliation officer fails to bring about a settlement of the dispute, he is required to make a report under Sub-section (4) of Section 12 setting out the reasons on account of which settlement could not be arrived at. On consideration of such report submitted under Sub-section (4) of Section 12, the appropriate Government, if satisfied, would make a reference of the dispute to the Labour Court or Tribunal, as the case may be. The discretion which the Government exercises while making a reference is a discretion which is exercised not arbitrarily but reasonably. Even when Government refused to make a reference in appropriate cases under Article 226 of the Constitution of India, the Courts in India have directed the Government to make a reference of the dispute. It, therefore, becomes clear that the "industrial dispute" which can be raised between the workman and the employer, on not being settled in conciliation proceedings, can be referred to Labour Court/Industrial Tribunal, as the case may be. Once such reference is made, the same is required to be decided by the Labour Court/Tribunal. There is thus a complete remedy provided to the aggrieved party to get the industrial dispute settled or to agitate his grievance before the competent forum about legality or otherwise of the decision of the employer. It is, therefore, clear that in view of the language of Section 10 read with Section 12(5) an adequate remedy is available to the workman under the scheme of the Industrial Disputes Act itself, which inter alia provides for the relief of reinstatement and backwages which the appellants before us sought before the Civil Court by filing the suits.
25. Though not strictly relevant, reference to Schedule 5 of the Industrial Disputes Act may help us in ascertaining the wide sweep of the jurisdiction of Labour Court/Industrial Tribunal. Section 2(ra) of the said Act defines "unfair labour practice" to mean any of the practices specified in the 5th Schedule. The 5th Schedule, inter alia, deals with conducts which would amount to unfair labour practice on the part of the employers and the trade unions of employes as well as conducts on the part of workmen and trade unions of workmen. In Schedule 5, while enumerating conducts which may amount to unfair labour practices on the part of the employers under Item No. 5, it is provided as under:
"5. To discharge or dismiss workmen;
(a) by way of victimisation: :
(b) not in good faith, but in the colourable exercise of the employer's rights;
(c) by falsely implicating a workman in a criminal case on false evidence or on concocted evidence;
(d) for patently false reasons;
(e) on untrue or trumped up allegations of absence without leave;
(f) in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue haste;
(g) for misconduct of a minor or technical character, without having any regard to the nature of the particular misconduct or the past record or service of the workman, thereby leading to a disproportionate punishment."
The aforesaid conducts on the part of the employer while discharging or dismissing workman may give rise to allegation of "unfair labour practice". Therefore, as and when conduct of the employer is one which squarely falls under any of the aforesaid descriptions, it is open to the workman to challenge the order of discharge and/or dismissal from service on the ground that it was vitiated as employer was guilty of adopting unfair labour practice. The aforesaid seven categories of conduct are very widely worded and it is open to the employee to challenge the order of discharge or dismissal on the aforesaid grounds also. The reason that such challenges can be available to a servant in an action against master under the general law/ common law should not make any difference in view of the fact that the scope of enquiry by competent Labour Court/Industrial Tribunal into conducts of aforesaid description of employer is very wide and is in no way circumscribed and, therefore, the relief which could be granted to workman under the special law cannot be said to be in any way incomplete or inadequate. At this stage, it will be necessary to refer to Sub-section (2) of Section 33 of the said Act in so far as it has relevance and also because reliance is sought to be placed thereon by the respondent-Corporation.
"33(2) During the pendency of any such proceeding in respectof an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute, (or where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman)-
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:
Provided that no such workman shall be discharged ordismissed, unless he has beenpaid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer."
Section 33 inter alia provides that during the pendency of any conciliation proceeding before a conciliation officer or a Board or before an arbitrator or Labour Court or Tribunal in respect of any industrial dispute, the employer shall not alter the condition of service of workman concerned to the prejudice to the workman. Subsection (2) of Section 33 provides that during the pendency of any such proceeding in respect of any industrial dispute, the employer may in accordance with the standing orders applicable to the workman concerned in such dispute discharge or punish, whether by dismissal or otherwise, such workman for any misconduct not connected with the dispute. However, this power is circumscribed by the proviso to Sub-section (2) of Section 33, which stipulates that no such workman shall be dismissed or discharged, unless he has been paid wages for one month and an application has been made by the employer to the authority before whom the proceeding is pending for approval of the action taken by the employer. Therefore, if any industrial dispute is pending between the workman/class of workman and the employer before the appropriate authority, orders of dismissal/discharge from service for any misconduct cannot be passed against the workman unless such action of the employer is approved by the authority before whom the dispute was pending. The object of the aforesaid proviso is to see that during pendency of any dispute before the appropriate Court/ Tribunal/authority, the conditions of service of the workman are not altered to a disadvantage and order of discharge or dismissal undoubtedly being one which would act detrimental to such workman, the approval of the authority before whom the dispute is pending is contemplated.
26. In the case before us, it is the case of respondent-Corporation, in its written statement, that since dispute as regards pay scaic payable to the workmen of respondent-Corporation and as regards other allied matters is pending before the arbitrator, immediately on passing the order of dismissal/removal from service against the concerned appellant-workman, the Corporation applied to the authority "Arbitrator" for approval of its action. The respondent-Corporation, therefore, submits that it was the authority established under the Industrial Disputes Act, 1947, which was already seized of the matter and, therefore, also the jurisdiction of Civil Court is excluded. Though it is true that the primary jurisdiction of the Civil Court to entertain the suit is determined by reference to the averments made in the plaint of the suit and accepting to the fact that plaintiff is the dominus litis who decides its forum on the basis of averments made in the plaint, while finally answering the question of jurisdiction the averments made in the written statement filed by the defendant do assume importance especially when factually such averments cannot be disputed. Therefore, while deciding this vexed question of jurisdiction at appropriate stage, the averments made in the written statement and their effect on the question of jurisdiction of the City Civil Court at Ahmedabad to entertain the suits filed by the workmen would assume importance.
27. It is also necessary at this stage to refer to the provisions of the Industrial Employment (Standing Orders) Act, 1946. The said Act was inter alia enacted for the requirements in industrial establishment to define with sufficient precision the conditions of employment and to make such conditions known to the workmen employed by them. Every employer is required to submit to the Certifying Officer, 5 copies of draft standing orders proposed by him for adoption in his industrial establishment and Certifying Officer as defined in Section 2(c) of the said Act is required under Section 5 of the said Act to certify such Standing Orders after inviting objections of the workmen and/or the trade union to the draft Standing Orders and after considering such objections, once such Standing Orders are certified, they shall apply to the industrial establishment and conditions of service as laid down in the said Standing Orders shall bind the employer and workmen. Section 2A of the said Act inter alia provides that where the Act applies to an industrial establishment, the Model Standing Orders for every matter set out in the Schedule shall apply to such establishment as from such date as the State Government may by notification in the official gazette appoint in this behalf. Model Standing Orders are already framed and are set out in the Schedule. Therefore, in the absence of any notified Standing Orders for any industrial establishment, reference to Section 2A is permissible only if the State Government has by notification in the official gazette specified the appointed date making Model Standing Orders applicable to such industrial establishment. In absence of any notification by the State Government, the Model Standing Orders contained in the Schedule to the said Act would not on their own apply.
28. In the cases before us as set out herein-above category-1 employees belong to that department of the industrial establishment, for which there are no certified Standing Orders. While in the second group of appeals, the employees belong to Ahmedabad Municipal Transport Service, for which certified Standing Orders are available and are applicable. Therefore, with respect to the cases of second category, we shall have to keep in mind that various conditions of service between the industrial establishment and such workmen are provided by certified Standing Orders and the appellant-workmen in the respondent- Corporation are squarely covered by those Standing Orders even in the matter of holding of departmental enquiry and ultimate imposition of penally by respondent-Corporation. The cases of the second category are cases where the service conditions of the appellants-workmen are specified by the certified Standing Orders which would include the penalties which could be imposed by the employer and the procedure which is required to be followed by the employer before imposing the penalties. The prescription of the procedure for imposition of penalty would necessarily include the prescription of procedure to be followed by enquiry officer and consequences on non-compliance of such procedure and or cases where compliance by the employer can be said to be sufficient compliance with the Standing Orders.
29. From the gist of averments made in the plaint and the nature of contentions raised in the plaint by the appellants-plaintiffs as set out hereinabove, it becomes clear that without reference to any Standing Orders, the appellants-plaintiffs have in each case referred to the question of competence of the officer who has issued the charge-sheet and passed the order of appointing Enquiry Officer and ultimate order of dismissal/removal from service, question of competence of the Enquiry Officer to hold enquiry, question of non- submission of the report by the Enquiry Officer within the stipulated time, question of issuance of show cause notice by an officer who is allegedly incompetent, question of penalty being unreasonable or excessive. The aforesaid questions are referable to the Standing Orders framed by respondent-Corporation, which inter alia include the procedure for imposition of penalty; the Standing Orders do stipulate holding of enquiry by duly appointed Enquiry Officer, issuance of charge-sheet and appropriate opportunity to defend to the employee and ultimate passing of an order by the disciplinary authority. Therefore, in our opinion, various questions specifically raised in the plaint by the appellants workmen in the second group of appeals squarely fall within the ambit of Standing Orders and question of compliance or non-compliance of Standing Order and its effect on the impugned order of dismissal/removal can very well be gone into by the Court/Tribunal established under Section 7 of the Industrial Disputes Act. The relief which the appellants workmen have prayed, viz., of declaration of their continuance in service and reinstatement and backwages are the reliefs which the competent Court or Tribunal under Section 7 of the said Act can always grant while exercising its jurisdiction under the provisions of the said Act.
30. In the first category, admittedly there are no certified Standing Orders and in absence of issuance of any notification by the State Government under Section 2A of the Industrial Employment (Standing Orders) Act, 1946, the Model Standing Orders as set out in the Schedule cannot be applied, Employees of such department of the Municipal Corporation, therefore, shall be governed by the rules and regulations framed by the Corporation in exercise of powers conferred upon it by B.P.M.C. Act. In this category of cases, the appellants-plaintiffs have without reference to any Standing Orders or rules and regulations framed by the Corporation referred to the question of competence of the officer who has issued a charge-sheet and passed the order of appointing Enquiry Officer and ultimate order of dismissal/removal from service, question of competence of the Enquiry Officer to hold enquiry, question of the non-submission of report of the Enquiry Officer within the stipulated time, question of penalty being unreasonable orexces-sive and also the question of violation of rules of natural justice. In this group of appeals, various questions specifically raised in the plaint by the appellants-workmen, do not fall within the ambit of Standing Orders (because there are no certified Standing Orders). The challenges raised are however such, which can be gone into by the Court/Tribunal established under Section 7 of the Industrial Disputes Act. The jurisdiction of the Court/Tribunal established under Section 7 of the Industrial Disputes Act to deal with such challenges cannot be doubted if amplitude of 'industrial disputes' specified in Second Schedule to the said Act is read with Section 7 of the Act, which authorises the appropriate Government to constitute one or more Labour Courts for the adjudication of those matters. Once, the Labour Court is established for the adjudication of those industrial disputes specified in the Second Schedule, in our opinion, there is Court of competent jurisdiction to deal with specified matters and matters specified in Second Schedule are so widely worded that obviously challenge to an order of dismissal/removal from service including prayers for reinstatement and the question of propriety or legality of the order passed by the employer can also be gone into by the Court or Tribunal established under the said Act. The Labour Court or Industrial Tribunal, therefore, has jurisdiction to deal with the cases falling into first category, where identical challenges to those referred to in second category of cases are made, but where there is omission on the part of industrial establishment to frame Standing Orders or there is omission on the part of the State Government in issuing notification for making provisions of Model Standing Orders applicable to the establishment. In our opinion, on the aforesaid count, the cases falling into first category cannot be said to have been excluded from the jurisdiction of Labour Court/Industrial Tribunal.
31. Before we undertake the exercise of dealing with various authorities and pronouncements of Courts cited before us by the learned Counsel appearing for the parties, we would like to observe that the question as to when the jurisdiction of Civil Court can be said to be barred or excluded either expressly or by necessary implication is a vexed question, over which time and again the Courts have pronounced. However, before dealing with such citations, it would be useful to reproduce the locus classicus of Willes, J. in Wolverhamton New Waterworks Co. v. Hawkesford, 1859(6) CB (NS) 336, Willes, J. referred to three categories of cases and observed:
"One is where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy; there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed and it is not competent to the party to pursue the course applicable to cases of the second class."
32. Based on the aforesaid statement of law, which is consistently followed by all Courts in India, attempt shall have to be made to find out as to in which category, the case of the appellants before us would fall. It should fall in Class-I because over and above the existing common law remedy, special remedy is provided by statute and there are no words of express exclusion of the common law remedy and, therefore, the appellants have election to choose their forum, submits Mr. M.B. Gandhi, learned Counsel for the appellants. On the other hand, Mr. B.P. Tanna, learned Counsel appearing for the Corporation submits that a special and particular remedy is provided by the Industrial Disputes Act, 1947 for enforcing the rights and liabilities arising thereunder and, therefore, the case of the appellants should fall in third class of cases.
33. In the case of Dhulabhai v. State of Madhya Pradesh, reported in AIR 1969 SC 78, a Constitutional Bench of the Supreme Court was called upon to decide the vexed question of exclusion of jurisdiction of Civil Court in the context of taxing statute in a suit for declaration that the provisions of Madhya Bharat Sales Tax Act, 1950 were ultra vires and for refund of tax illegally collected. The suit was opposed by the State Government mainly on the ground that such a suit was barred by the provisions of Section 17 of the said Act, which inter alia provided that the assessment under the Act or the Rules made by the Appellate Authority or the Commissioner shall not be called into question in any Court. After reference to various authorities of Privy Councils and English Courts, Chief Justice M. Hidayatullah summarised the outcome of discussion into seven principles regarding exclusion of jurisdiction of Civil Courts. The extensive reference to the said seven principles is not relevant for the purpose of these appeals, but it can be said that ouster of the jurisdiction of a Civil Court is not to be lightly inferred and can only be established if there is an express provision of law or it can be implied where the statute gives a finality to the orders of the special tribunals. Since the statute provides adequate remedy to grant the reliefs which the Civil Court would not normally grant in a suit, the Civil Courts jurisdiction must be held to be excluded. Therefore, from the examination of the scheme of the special statute, it is found that the statute itself has provided adequate and sufficient remedies for the purpose of dealing with the rights and liabilities arising from the provisions of the statute and if it has created special Courts or Tribunals to determine such rights and liabilities, it can be said that the intention of the legislature was to bar the jurisdiction of the Civil Courts and to invest such jurisdiction in the special Court or Tribunal established for determination of rights and liabilities arising under the special statute. This proposition clearly emerges from principles No. 1 and 2 evolved by the Supreme Court in the case of Dhulabhai (supra).
34. In the context of Labour Court/Industrial Tribunal established under the provisions of Industrial Disputes Act, 1947 and consequential plea of exclusion of jurisdiction of Civil Court in the case of Premier Automobiles Limited v. Kamlakar Shantaram Wadke reported in (1975-II-LLJ-445) the Supreme Court has after examining the entire scheme of the Industrial Disputes Act, 1947, found that a very extensive machinery has been provided for settlement and adjudication of industrial disputes. The Supreme Court referred to the famous and oft quoted words of Lord Tenterden, C.J. in Doe v. Bridges which reads as under:
"Where an Act creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner".
The aforesaid passage was subsequently referred to and based on that statement classical enunciation of the law and classification of the cases in three classes was done by Willes, J. which is already reproduced hereinabove. By reference to the decision of the House of Lords in Pasmore v. The Oswaldtwistle Urban District Council (1898 Appeal Cases 387) the Supreme Court made reference to the observation of Earl of Halsbury, L.C., who observed as under: (p.452) "The principle that where a specific remedy is given by a statute, it thereby deprives the person who insists upon a remedy of any other form of remedy than that given by the statute, is one which is very familiar and which runs through the law."
The Court also referred to the decision of the House of Lords in the case of Barraclough v. Brown, 1897 AC 615 and noticed that by special statute under consideration before House of Lords, right to recover expenses in a Court of Summary Jurisdiction from a person who was not otherwise liable at common law given to the party. When that party moved the High Court for a declaration that it had a right to recover the expenses in a Court of Summary Jurisdiction, the House of Lords held that his remedy is only to the Court of Summary Jurisdiction. Lord Harschell observed as under:
"I do not think the appellant can claim to recover by virtue of the statute, and at the same time insist upon doing so by means other than those prescribed by the statute which alone confers the right."
Similarly Lord Watson in the said case observed as under:
"The right and the remedy are given uno flatu, and the one cannot be dissociated from the other."
Having so examined the law, the Court summed up the principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute by laying down the following four 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 or 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."
35. Having so stated the four principles, which would be determinative of the extra jurisdiction of the Civil Court in relation to an industrial dispute, the Court made most pertinent observations in the very next paragraph, and in our opinion observations made in the next paragraph are in fact determinative of the scope and ambit of principle No. 2 reproduced hereinabovc. In para 24 of the report the Court observed as under:
"24. We may, however, in relation to principle 2 stated above hasten to add that there will hardly be 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."
From the aforesaid observations it becomes clear that when the dispute is an industrial dispute within the meaning of Section 2(k) of the said Act and when it is arising out of a right or liability under the general or common law and not under the Industrial Disputes Act, the jurisdiction of the Civil Court is alternative. It must be stated that scope for such a dispute which is an industrial dispute and yet it is one which is arising out of a right or liability under the general or common law is minimal and such a dispute would hardly arise. If it is an industrial dispute within the meaning of Section 2(k) of the Act, it can be said to be a dispute which is arising under the Act. In order to attract principle No. 2, two requirements must be specified :
(1) though dispute is an industrial dispute within the meaning of Section 2(k) of the Act, it is not under the Industrial Disputes Act, 1947, and (2) such a dispute is one which is arising out of a right or liability under the general or common law only. In fact, such a contingency, is difficult to conceive or comprehend.
Therefore, hardly Civil Court will have occasion to deal with cases falling under principle No. 2. In our opinion, therefore, once it is established that the dispute is industrial dispute within the meaning of Section 2(k) of the said Act, there will be minimal or perhaps no chance of such dispute arising out of a right or liability under the general or common law only and such dispute almost invariably will be covered by principle No. 3 and as per that principle only remedy available to the person is to get an adjudication under the Industrial Disputes Act, 1947. If para 24 of the report in Premier-Automobiles case (supra) is read in proper perspective along with principle No. 2 stated in para 23 of the report, in our opinion, principle No. 2 would apply in a rarest of rare cases and there will be very little scope or perhaps minimal scope for the Civil Court to deal with such dispute which is an industrial dispute as well as a dispute arising out of a right or liability under the general or common law only.
36. In the case of Municipal Corporation of the City of Ahmedabad v. Jyotindra Hariprasad Mehta, reported in (1979) XX GLR 90, Division Bench of this Court in the context of an industrial dispute was called upon to decide the very question of jurisdiction of the Civil Court to entertain a Civil Suit. The plaintiff before the Division Bench was an employee of the Ahmedabad Municipal Corporation serving in the Transport Department and he was governed by the Standing Order of the workmen employed for clerical and supervisor work. For a misconduct, an enquiry was held against him and thereafter his service was terminated and such an order of termination was confirmed by the appellate authority. Thereupon, he instituted civil suit contending that the order of termination of his services was in contravention of the Standing Orders and was also in violation of Section 33(2)(b) of the Industrial Disputes Act, 1947. The Division Bench speaking through Justice S.H. Sheth, after reference to the decision of the Supreme Court in Premier Automobiles Limited (supra), took the view that the case was squarely covered by principle No. 3 of Premier Automobile Limited inasmuch as the plaintiff wanted enforcement of the Standing Order. The Division Bench held that when the 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 his services by his employer arising out of relationship of master and servant between him and his employer. We are in full agreement with the aforesaid proposition laid down by the Division Bench of this Court. It may be stated that before the Division Bench, the plaintiff expressly prayed for enforcement of his right arising from the Standing Orders. While in the cases before us by clever drafting of the plaint, reference to Standing Orders is scrupulously eschewed in the plaint. It is averred that various actions taken are not in accordance with law, but scrupulously no reference is made to Standing Order, and therefore, it is sought to be canvassed before us by Mr. M.B. Gandhi that the principle laid down by the Division Bench of this Court in (1979) XX GLR 90 would not apply. We cannot accept such submission and the same shall have to be rejected for the obvious reason that in substance the claim of appellants-plaintiffs is to enforce the Standing Orders in second category of cases and in first category of cases the appellants-plaintiffs are moving the Court for settlement of an industrial dispute, for which a special Tribunal/ Court is created under the special statute with a special remedy for enforcement of rights or liabilities arising under the special Act Simply because by clever drafting reference to Standing Orders is avoided, we cannot hold that the dispute is one which is not an industrial dispute. It is a dispute which cannot be said to be not arising under the provisions of the Industrial Disputes Act nor can it be held that it is a dispute which arises under general or common law. In our opinion, the test to be applied is one which is propounded by us hereinabove by reading principle No. 2 from para 23 of the report in Premier Automobile Limited case (supra) along with pertinent observations made in para 24 of the report in Premier Automobile case (supra) and so once it is established that the dispute is an industrial dispute within the meaning of Section 2(k) of the said Act, there is adequate remedy provided under the provisions of the Industrial Disputes Act and, therefore, jurisdiction of the Civil Court is barred.
37. It cannot be gainsaid that the jurisdiction of the Civil Courts to deal with civil cases can be excluded by the Legislature by special Acts which deal with special matters, but the exclusion of the jurisdiction of the Civil Courts must be made by a statutory provision which expressly provides for it, or which necessarily and inevitably leads to that inference. In other words, the jurisdiction of the Civil Courts can be excluded by a statutory provision which is either express or which irresistibly leads to that inference. One of the factors which is relevant in dealing with the question of exclusion of Civil Court's jurisdiction is, whether the special statute which is said to exclude such jurisdiction has used clear and unambiguous words enacting that intention. Second important factor which is applied is :Does the said statute provide for an adequate and satisfactory alternative remedy to a party, which may be aggrieved by the order under its provisions?
38. The scheme of the Industrial Disputes Act, 1947, which we have elaborately examined hereinbefore reveals that there is no provision in the Act, which expressly bars the jurisdiction of the Civil Court to entertain suits like those before us. There can never be any doubt that the Act confers on workmen certain rights even though they are not excluded in the contract of employment. The Act also provides special Courts and Tribunals for enforcement of these additional, rights which are mentioned in Chapter VA of the Act read with Schedules 2 to 4 of the Act. Chapter II of the Act sets out the machinery for the enforcement of its rights. Sections 6, 7, 7A and 7B of the Act mention the Special Courts and Tribunals set up by the Act for dealing with industrial dispute and other matters appearing to be connected with or relevant to the industrial dispute. Section 10 authorises the appropriate Government to refer an industrial dispute existing or apprehended by an order in writing to a Board for settlement or the Labour Court or Tribunal under the Act for enquiry into the matters referred and for making a report or an Award as contemplated by Section 16 of the Act. Section 18 of the Act makes such report or award binding on the parties. Thus, the Act, i.e., the Industrial Disputes Act, 1947 confers on employees in industry special rights and provides machinery for enforcing the special rights. Considering the various provisions of the Act, we are of the opinion that jurisdiction of the Civil Court to deal with matters mentioned in Chapter VA of the Act read with Schedules 2 to 4 to the Act is impliedly barred. In our opinion, the present case would fall under principle No. 3 of Premier Automobiles Limited (supra) case or under third class mentioned in the passage of Willes, J. in Wolverhampton New Waterworks Co. (supra). Maxwell on Interpretation of Statutes at page 126 in the 11th Edition observes as under:
"Where, indeed a new duty or cause of action is created by statute, and a special jurisdiction out of the course of the common law is prescribed, there is no ouster of the jurisdiction of the ordinary Courts, for they never had any..."
39. The position of law is even more emphatically and categorically stated in the recent decision of the Supreme Court in the case of Jitendra Nath Biswas v. Empire of India andCeylone Tea Co., reported in (1989-II-LLJ-572). In the context of more or less identical industrial dispute to one which is raised before us, the appellant before the Supreme Court challenged the order of his dismissal as contrary to the provisions of Standing Orders framed under Industrial Employment (Standing Orders) Act, 1946. He instituted civil suit for the relief of declaration that the order of dismissal passed against him was null and void and inoperative as he was not guilty of any misconduct, as no enquiry was conducted, the dismissal was bad being not in accordance with the Standing Orders. He also sought the relief of backwages and injunction not to give effect to the order of dismissal. The suit was resisted by the Corporation employer and the question of jurisdiction was raised. The trial Court found that it had jurisdiction and the High Court in revision held that the nature of relief which was sought by the appellant-plaintiff was such, which could only be granted under the Industrial Disputes Act, and therefore, the Civil Court had no jurisdiction. In appeal to the Supreme Court, two Judges Bench of the Supreme Court examined the scheme of the Industrial Disputes Act and the decision of the Constitutional Bench of the Supreme Court in the case of Dhulabhai (supra) and it came to the conclusion that the relief which was sought by the appellant-plaintiff is in substance a relief of reinstatement with backwages which relief is not the right of the appellant-plaintiff flowing from the contract or the civil law. The right of reinstatement with backwages on order of dismissal/removal from services being found null and void or illegal is conferred upon the employees by the Industrial Disputes Act, for the relief is available only under the Industrial Disputes Act. The said Act provides the procedure and remedy and it is not open to the workman to approach the Civil Court for getting the very relief which he could only get under the scheme of the said Act. The following observations made by the Supreme Court, in our opinion are opposite:(p.577):
"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. In Dhulabhai's case (AIR 1969 SC 78) a five Judges Bench of this Court considered the language of Section 9 and the scope thereof in respect of exclusion of jurisdiction and it was observed (at p. 89 of AIR):-
Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment become necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not"
It is therefore clear that 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 this Act and for which a complete procedure and machinery has been provided in this Act.
40. The Court held that remedy under Industrial Disputes Act cannot be said to be discretionary. The suit for declaration that dismissal of he appellant plaintiff from service was bad and void, for backwages and for injunction - preventing the employer from giving effect to the order of dismissal is in substance the suit for the relief or reinstatement and backwages and is, therefore, not maintainable before a Civil Court.
41. In view of the position of law as stated by the Supreme Court in the case of Premier Automobiles Limited (supra) and emphatically restated in the case of Jitendra Nath Biswas (supra), we cannot agree with Mr. M.B. Gandhi, learned Counsel appearing for the appellants that the case of the present appellants would fall under principle No. 2 of Premier Automobile Limited (supra). The principle No. 2 of Premier Automobile Limited (supra) shall have to be read with pertinent observations made in para 23 of the report and so read, there will hardly be a dispute, which will be a dispute within the meaning of Section 2(k) of the Act and will be one arising out of right or liability under the general or common law only and not under the Act. It is, therefore, clear that once the dispute is an industrial dispute, it would ordinarily a rise out of a right or liability under the Industrial Disputes Act and there can hardly be cases of dispute arising out of right or liability under the general or common law only. Therefore, if the dispute is one which is an industrial dispute and is arising out of right or liability under the Industrial Disputes Act as well as rights or liabilities under the general or common law, the case would not fall under the principle No. 2. In order to seek protection of principle No. 2 so as to uphold the jurisdiction of the Civil Court to entertain the suit, the suitor is required to establish that dispute is industrial dispute, which is arising out of a right or liability under the general or common law only and that it is not arising out of a right or liability under the Industrial Disputes Act. The Civil Court, therefore, will have hardly any occasion to deal with this type of cases falling under principle No. 2. It is, thus, clear that in cases where the dispute is an industrial dispute and it arises out of right or liability arising from the provisions of the Industrial Disputes Act, 1947, the special remedy provided by that statute is the only remedy for the reliefs which could be granted by the Tribunal/Court established under the provisions of the said Act and therefore, a Civil Suit by necessary implication is barred, a Civil Court will have no jurisdiction.
43. We may also refer to one additional submission of Mr. Gandhi for the respondent-plaintiff in this connection. He submitted that looking to the averments made in the plaint, it can be visualised that the plaintiffs are not seeking for any reinstatement as such. All that they submit is that the impugned penalty orders are null and void, as according to the plaintiffs, they are contrary to the provisions of the Bombay Provincial Municipal Corporations Act and relevant rules and regulations holding the field and when defendant-Municipal Corporation is a 'State' within the meaningof Article 12, such a declaration can certainly be given by Civil Court under Section 9 of the C.P. Code and such a relief is not exclusively within the domain of the Industrial Court or Labour Court, as the case may be. Even accepting the said contention of Mr. Gandhi to be true, the hurdle in the way of the plaintiffs is not removed thereby. To recapitulate, in Premier Automobile's case (supra), the Supreme Court has in terms held that before category 2 can apply it must be shown that the industrial dispute arises out of the right or liability under the general or common law only and not under the Act. The industrial disputes in the present case do put forward the claims or rights for the plaintiff and corresponding liabilities for the respondent-Corporation, which is 'State' within the meaning of Article 12 but such rights and corresponding liabilities flow not only from the general law like the Bombay Provincial Municipal Corporations Act and its rules and regulations but also from the Industrial Disputes Act, as we have seen earlier in the light of relevant provisions of the Act and the Schedules. Moment this conclusion is reached, it becomes obvious that the present industrial disputes cannot fall in category 2 as they do not arise solely out of the provisions of the Bombay Provincial Municipal Corporations Act and the rules and regulations. They also overlap and travel in the field covered by Industrial Disputes Act and its relevant Schedules and that is the precise reason why the present case would not be covered by category 2. We pointedly asked Mr. Gandhi whether the dispute raised by the plaintiffs can be adjudicated upon by the competent Court under the Industrial Disputes Act or not. He fairly stated that they could be adjudicated upon by such Courts under the Act but his submission was that for attracting category 2 as laid down by the Supreme Court in Premier Automobile's case (supra), such overlapping is not contra indicated. It is not possible to agree with this sub-misison. As indicated in Premier Automobile's case (supra) such cases would fall in category 3 only. Hence the arguments of Mr. Gandhi that the present cases are covered by category 2 as indicated in Premier Automobile's case (supra) cannot be accepted.
44. In view of the aforesaid discussion, we are of the opinion that the trial Court was right in holding that City Civil Court at Ahmedabad has no jurisdiction to hear the suits instituted by the appellants-plaintiffs. We are also of the opinion that the learned single Judge was right in holding that the Civil Court has no jurisdiction to examine the grievance of appellants-plaintiff regarding appointment of enquiry officer, illegality of the show cause notice and mala fide nature of the proceedings. However, in our opinion, he was not right in holding that the question of competence of the Deputy Municipal Commissioner to initiate the disciplinary proceedings and to pass an order of the dismissal/removal from service was one which could be decided by the Civil Court. In our opinion, the question as to whether the authority who initiated the disciplinary proceedings was competent to initiate the disciplinary proceedings and the question as to whether the authority who passed the order of dismissal/removal, was competent to pass the order of dismissal/removal are the questions relating to discharge or dismissal of workman as contemplated in item III of Second Schedule. The jurisdiction of Labour Court/Industrial Tribunal under Section 7 read with the nature of industrial disputes which are specified in the Second Schedule is very wide and any challenge to the order of discharge or dismissal would fall within the plenary power of Labour Court/Industrial Tribunal. Therefore, simply because the challenge to the competence of the authority to initiate disciplinary proceedings or pass the punishment order is referrable to the provision of Bombay Provincial Municipal Corporations Act, it cannot be held that jurisdiction of the Civil Court to entertain such a dispute is not impliedly barred. This very dispute can also be entertained and gone into by the Labour Court/Industrial Tribunal established under the Industrial Disputes Act, 1947 and therefore, in our opinion, the learned single Judge was not right in partially allowing the first appeals and in remanding the matters to the City Civil Court.
(Rest of the Judgment is not material for the Reports.)