Himachal Pradesh High Court
Narpat Ram vs Hindustan Salt Ltd. And Ors. on 27 March, 2002
Equivalent citations: (2002)IIILLJ768HP
Author: Arun Kumar Goel
Bench: Arun Kumar Goel
JUDGMENT Arun Kumar Goel, J.
1. Appellant was plaintiff in the trial Court and is being referred to as such. He filed a suit for declaration to the effect that order of dismissal dated August 6, 1981 passed by defendant No. 3 and order of compulsory retirement dated May 5, 1982 passed by defendant No. 2 is null void and inoperative. Further relief was also claimed by him of service benefits etc. As per averments made in the plaint, he was employed as a Class IV in January, 1956 by the Mining Engineer, Government of India, Salt Department, Mandi and was confirmed as such by the Deputy Salts Commissioner, Mandi. He was subsequently appointed as Lower Division Clerk by the said Deputy Salt Commissioner with Headquarter at Jaipur w.e.f. March 27, 1963.
2. Further case set up was that Salt Department of Government of India was disbanded and converted into company known as Hindustan Salt Ltd. (a Government of India undertaking). Mandi salt mines were also handed over to this company along with its staff. Plaintiff along with other employees was transferred to the said company. On option having been exercised by the plaintiff, his permanent lien in the Salt Department was terminated w.e.f. December 1, 1967 by the Salt Commissioner of India, Jaipur and from this date he along with other employees was permanently absorbed in defendant No. 1 company.
3. While he was employed at Mandi, plaintiff was General Secretary of Mandi Salt Mines Employees Union. During this period, Chaman Lal Malhotra, was working as Mines Manager at Mandi. i.e. defendant No. 3. He was inimically disposed towards the plaintiff.
Out of malice said Chaman Lal Malhotra started causing harassment by abuse of his administrative position. In June, 1979, plaintiffs wife fell ill and was admitted at Primary Health Centre, Ratti. He approached Sohan Lal, incharge P.H.C., Ratti to issue medical certificate to draw advance for her treatment. Requisite certificate was issued on June 8, 1979. Again certificate was obtained in August, 1980 when his wife was admitted at Civil Hospital at Sundernagar. Thus, plaintiff claims to have submitted medical treatment claim for Rs. 69.76 paise in August, 1980 being subject to scrutiny for passing of the bill. It was alleged against the plaintiff that he tampered by forging the certificate by adding the words "anticipated cost of medical treatment would be Rs. 250/- " and "350 is recommended for treatment". It was further urged that plaintiff had unauthorisedly changed the word "Mandal" with "Sundernagar". This was done in the office medical claim application. He was charge sheeted and for that purpose, Kishori Lal, Office Superintendent was appointed as Inquiry Officer. Plaintiff further alleged that this inquiry officer was not acceptable to him as he did not expect fair trial from him. Thus he applied for change of Inquiry Officer. This prayer was declined by the authorities. After holding ex parte inquiry Inquiry Officer submitted his report. This was mechanically followed by defendant No. 3 who passed dismissal order. When this order was appealed against before defendant No. 2, he allowed the same and converted it into an order of compulsory retirement. Plaintiff was aggrieved by this order passed by defendant No. 2 and thus filed writ petition. It was dismissed in limine. After this decision, he preferred another appeal before the Board of Directors of defendant No. 1. It was also dismissed because of the earlier decision in the writ petition. He preferred S.L.P. It was also dismissed. Thus he filed the suit.
4. Defendants contested and resisted this suit, on the grounds that plaintiff is not entitled to the relief sought for or any type of declaration. According to them he was estopped to maintain and continue the present suit as he had accepted and was enjoying all the consequential benefits of compulsory retirement. Suit was bad and mala fide and was incompetent. Allegations that the impugned orders are null and void were refuted, as those were correctly passed. Maintainability of the suit was also questioned. It was pleaded to be barred by res judicata, estoppel and non-Joinder of necessary parties, plaintiff having no cause of action as suit being not properly valued for jurisdiction, were other pleas set-up for dismissal of the suit. In replication, averments which were contrary to what was pleaded in the plaint were denied and in replication to those pleadings in the written statement what was sought in the plaint, were reiterated.
5. Trial Court on the pleadings of the parties, framed the following issues and finally decreed the suit.
1. Whether the impugned order of dismissal and subsequent order of compulsory retirement of the plaintiff vide orders dated August 6, 1981 and May 5, 1982 respectively are null and void. Illegal? O.P.P.
2. Whether the suit is barred by principle of res Judicata? O.P.D.
3. Whether the plaintiff is estopped by his own act and conduct? O.P.D.
4. Whether the suit is within limitation? O.P.P.
5. Whether the suit is not maintainable in the present form? O.P.D.
6. Whether the suit is bad for non-joinder of necessary parties? O.P.D.
7. Relief.
6. This order when challenged in appeal, was set aside and consequently suit was dismissed. This appeal was admitted on the following substantial questions of law on March 8, 1996.
1. Whether respondent/ defendant-Company, being an instrumentality of the State, is bound by the promise held out to the plaintiff that he would be governed by same conditions of service as applicable to the Central Government Employees, more particularly in the matter of disciplinary control?
2. Whether appellant/plaintiff is entitled to seek declaration as prayed for by him in Civil Suit in view of promise held out to him by defendant/respondent-company regarding protection of his conditions of service?
3. Whether impugned enquiry is vitiated due to violation of principles of natural justice? and
4. Whether findings in the impugned enquiry report is perverse and based on no evidence?
7. This matter was argued at length by learned counsel for the parties. At the time of hearing of this appeal another substantial question of law was also felt necessary to be framed that was necessary to be gone into. With the consent of learned counsel for the parties, they were heard on it which is as under :-
"Whether in the face of the provisions of Industrial Disputes Act, 1947, plaintiff could maintain the suit"
8. Learned counsel for the parties stated that issue is purely legal, as such they need to be heard. It was further stated on behalf of the defendants that case may not be adjourned as per requirement of Section 100, C.P.C., as this question has been framed at the time of hearing and he is ready to argue the same. In this background parties hare been heard in this appeal.
9. Defendant No. 1 is an industry. This position was not disputed on behalf of the parties. Dispute between the parties is covered by the provisions of Industrial Disputes Act, 1947.
10. Whether dismissal and subsequent compulsory retirement of the plaintiff from the employment of defendant No. 1 was lawful or not was determinable under the provisions of Industrial Disputes Act. As such the matter is exclusively within the domain of the said Act to be determined by the authorities constituted thereunder.
11. Here what was urged on behalf of the plaintiff at the time of hearing needs to be noted. According to Mr. Dogra, his client is enforcing pure and simple terms of his employment with defendant No. 1 as contained in fact Ex. P-3 to Ex. P-5. According to him, service conditions framed by defendant No. 1 are enforceable, therefore, declaration and other reliefs prayed for in suit are admissible to his client, as such suit could be maintained by this plaintiff. He further stated that ouster of jurisdiction of civil Court is not to be lightly inferred in the present case. Alternatively, he submitted that now referring his client to have recourse to the provisions of Industrial Disputes Act will be too harsh. With a view to further advance this line of argument, Mr. Dogra urged that defendants did not put up this plea expressly though they had questioned maintainability of the suit. On the other hand, learned counsel for the defendants stated that Industrial Disputes Act is meant to deal with such like situations and the ouster of jurisdiction of the civil Court is impliedly barred as it cannot decide the legality of termination of a workman like plaintiff.
12. From the narration of the above facts, it is clearly made out that there exists an industrial dispute between the parties. With a view to properly adjudicate it, a Forum has been constituted by special enactment, i.e. Industrial Disputes Act, as such jurisdiction of the civil Court was barred by necessary implications.
13. Even otherwise this question is no more res Integra in view of the following decisions.
14. In Jitendra Nath Biswas v. Empire of India and Ceylone Tea Co., AIR 1990 SC 255 : 1989 (3) SCC 582 : 1989-E-LLJ-572 while dealing with the scope of jurisdiction of civil Court regarding reinstatement and back wages, under the Industrial Disputes Act, it was held that it cannot be granted by the civil Court. It was further observed that provisions of Industrial Disputes Act impliedly excludes the jurisdiction of the Civil Court as regards such relief.
15. In Jagat Ram v. Himachal Khadi Mandal 1997-III-LLJ (Suppl)-866 (HP) this Court while dismissing the appeal of the appellant, and dealing with an identical matter and after following AIR 1990 SC 255 held as under :-
"22. In the present case, the plaintiff is challenging the termination of his services by the defendant. Therefore, it falls within the ambit of Section 2-A of the Act and as such the dispute involved is an "industrial dispute" within the meaning of Section 2(k) of the Act. The machinery provided by the Act for resolution of such dispute would, therefore, apply and civil Court would have no jurisdiction.
23. A similar question also came up for consideration before a learned single Judge of this Court in Himachal Khadi Mandal v. Om Prakash, C.R. No. 189 of 1991 and Himachal Khadi Mandal v. Subash Chand, C.R. No. 191 of 1991, decided by a common Judgment on December 11, 1991 (reported in 1992 Lab IC 1496). In the said, two cases also the order of termination of services of Sarvshri Om Parkash and Subash Chand passed by the present defendant came to be challenged by way of civil suits and it was held that since the dispute raised an "industrial dispute", the jurisdiction of the civil Court was a barred and only the forums under the Act would be competent to go into and adjudicate upon the same.
24. The facts of the present case are similar to the facts of the cases referred to above on all fours. Relying upon the ratio laid down by the Apex Court as well as by this Court in the above referred to cases, the present suit is not within the jurisdiction of the civil Court. The findings recorded by the learned first Appellate Court are correct and do not call for any interference."
16. In Chandrakant Tukaram Nikam, Municipal Corporation of Ahmedabad, AIR 2002 SC 997 : 2002 (2) SCC 542 : 2002-I-LLJ-842 Supreme Court while dealing with implied ouster of the jurisdiction of Civil Court held as under at pp. 846, 847 & 848 of LLJ:
"5. The three-Judge Bench in Rajasthan SRTC, AIR 1995 SC 1715 : 1995 (5) SCC 75 : 1995-II-LLJ-728 summarised the principles as below at pp. 741, 742 of LLJ:
"(1) Where the dispute arises from general law of contract i.e. where reliefs are claimed on the basis of the general law of contract, a suit filed in civil Court cannot be said to be not maintainable, even though such a dispute may also constitute an 'industrial dispute' within the meaning of Section 2(k) or Section 2-A of the Industrial Disputes Act, 1947.
(2) Where, however the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes Act, the only remedy is to approach the forums created by the said Act.
(3) Similarly, where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactments like the Industrial Employment (Standing Orders) Act, 1946 - which can be called 'sister enactments' to the 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 the Industrial Disputes Act or where such enactment says that such dispute shall be either treated as an industrial dispute or say that it shall be adjudicated by any of the forums created by the Industrial Disputes Act. Otherwise, recourse to Civil Court is open.
(4) It is not correct to say that the remedies provided by the Industrial Disputes Act are not equally effective for the reason that access to the forum depends upon a reference being made by the appropriate Government. The power to make a reference conferred upon the Government is to be exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex facie. The power conferred is the power to refer and not the power to decide, though it may be that the Government is entitled to examine whether the dispute is ex facie frivolous, not meriting an adjudication.
(5) Consistent with the policy of law aforesaid, we commend to Parliament and the State Legislatures to make a provision enabling a workman to approach the Labour Court/Industrial Tribunal directly i.e. without the requirement of a reference by the Government - In case of industrial disputes covered by Section 2-A of the Industrial Disputes Act. This would go a long way in removing the misgivings with respect to the effectiveness of the remedies provided by the Industrial Disputes Act.
(6) The certified Standing Orders framed under and in accordance with the Industrial Employment (Standing Orders) Act, 1946 are statutorily imposed conditions of service and are binding both upon the employers and employees, though they do not amount to 'statutory provisions'. Any violation of these Standing Orders entitles an employee:
to appropriate relief either before the forums created by the Industrial Disputes Act or the civil Court where recourse to civil Court is open according to the principles indicated herein.
(7) The policy of law emerging from the Industrial Disputes Act and its sister enactments is to provide an alternative dispute resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and unencumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to civil Courts. Indeed, the powers of the Courts and Tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an Industrial dispute."
It may be borne in mind that the Industrial Disputes Act was enacted by Parliament to provide speedy, inexpensive and effective forum for resolution of disputes arising between workmen and the employers, the underlying idea being to ensure that the workmen do not get caught in the labyrinth of civil Courts which the workmen can ill-afford, as has been stated by this Court in Rajasthan SRTC case (supra). It cannot be disputed that the procedure followed by civil Courts are too lengthy and consequently, are not an efficacious forum for resolving the industrial disputes speedily. The power of the Industrial Courts also is wide and such forums are empowered to grant adequate relief as they think just and appropriate. It is in the interest of the workmen that their disputes, including the dispute of illegal termination are adjudicated upon by an industrial forum. To our query Mr. Ahmadi, learned counsel appearing for the appellants was not in a position to tell that the relief sought for in the cases in hand, cannot be given by a forum under the Industrial Disputes Act. The legality of the order of termination passed by the employer will be an industrial dispute within the meaning of Section 2(k) and under Section 17 of the Industrial Disputes Act, every award of the Labour Court, Industrial Tribunal or National Tribunal is required to be published by the appropriate Government within a period of thirty days from the date of its receipt and such award published under Sub-section (1) of Section 17 is held to be final.
6. In the aforesaid premises and having regard to the relief sought for in the suits filed in the civil Court, we have no manner of hesitation to come to the conclusion that in such cases the jurisdiction of the civil Court must be held to have been impliedly barred and the appropriate forum for resolution of such dispute is the forum constituted under the Industrial Disputes Act. We, therefore, do not find any infirmity with the impugned judgment of the High Court requiring our interference. The appeals accordingly fail and are dismissed.
We would however observe mat it would be open for the appellant workmen to approach the appropriate industrial forurn and such forum if approached, will dispose of the matter on its own merits. There will be no order as to costs."
17. Again faced with this situation. Mr. Dogra learned counsel for the appellant, submitted that referring his client to have recourse under the industrial Disputes Act will result in failure of justice. In the face of the legal position referred to hereinabove, this plea cannot be accepted.
18 Mr. Dogra made a further prayer that questions of law framed with the appeal need to be atleast adjudicated upon. In my considered view those are purely academic after it is held that jurisdiction of the civil Court to have entertained the suit is impliedly barred, As such, those are not determined.
19. No other point is urged.
20. While dismissing the appeal for the reasons set out hereinabove, it is clarified that the plaintiff will be free to have such recourse as is admissible under the Industrial Disputes Act. In case the plaintiff approaches the appropriate authority for conciliation, it shall deal with the prayer as per law within 3 months of his such request. In case he claims reference, the matter would be adjudicated by 'the appropriate Government within three months of the receipt of such a prayer. In the event of reference being made by the appropriate Government Labour Court shall independently answer the same within one year thereafter in accordance with law and without being in any manner influenced by anything said either by the trial Court/District Judge or in this judgment. Ordinarily such directions are not required to be issued by this Court. However, those have been necessitated keeping in view the time gap. No costs.