Madras High Court
P. Kulasekaran vs Union Of India (Uoi), Southern Railway on 23 August, 1990
Equivalent citations: (1993)IIILLJ656MAD, (1991)IIMLJ320
JUDGMENT Somasundaram, J.
1. The plaintiff in O.S. No. 8601 of 1977 on the file of the 8th Assistant Judge, City Civil Court, Madras, is the appellant in this second appeal. The defendant in the above mentioned suit is the respondent in the second appeal. For the sake of convenience the parties are referred to by the nomenclature given to them in the suit.
2. The plaintiff filed the suit O.S. No. 8601 of 1977 on the file of the City Civil Court for a declaration that the retrenchment of the plaintiff 10 from service with effect from 21.12.1976 by the defendant is illegal and void and that he is deemed to continue in service with all benefits. The case of the plaintiff is as follows:
The plaintiff entered service under the defendant as a casual worker on 21.10.1975 and his service from 21.10.1975 till his retrenchment on 21.12.1976 was continuous one. He has worked for more than 240 days for the period from 21.10.1975 to 20.12.1976. He was retrenched from service on 20.12.1976 on oral orders of the Inspector of Workers, one Mr. Seetharaman. After the plaintiff entered service, other persons by names Sundaramurthy, Ponuswami and Dasappan were taken into service as brick-layers and the plaintiff is senior to all of them. His juniors continued in service and they still continue in service and that he was not the juniormost person to be retrenched. No retrenchment compensation was offered or tendered and, therefore, his retrenchment from service is in violation of Section 25-F of the Industrial Disputes Act, 1947, hereinafter referred to as the Act. His retrenchment from service retaining his junior is also contrary to Section 25-F of the Act, which envisages the principle of last come first go. His retrenchment is also contrary to Section 25-F(a), 25-F(b), 25-G and 77 of the Act and to the various Statutory Rules framed by the Railway Board and the General Manager, Southern Railway, Madras.
3. The defendant resisted the suit contending as follows:
The plaintiff was initially engaged as a casual labourer as brick-layer under the Inspector of Works, Tambaram on 14.11.1975. The plaintiff was used to be engaged as and when services of extra brick-layer were needed to cope up with the work-load in the section. The plaintiff was only a daily rated casual labourer and he was indifferent in his work and also failed to carry out instructions on number of occasions despite several warnings to him. The plaintiff had not put in 240 days in a calendar year to call it a continuous service as contemplated under Section 25D of the Act. The work of the plaintiff was unsatisfactory and, therefore, he was stopped from service with effect from 21.12.1976. The case of the plaintiff is not a case of retrenchment but only stoppage from his work simpliciter for unsatisfactory work. Therefore, the plaintiff cannot contend that his juniors were in service and the order terminating him from service is invalid. Section 25-F has no application to the plaintiff's case and is not entitled to any notice or compensation.
4. The Trial Court found that the plaintiff was stopped from service on account of unsatisfactory work and the plaintiff was not retrenched from service as contended by him. The Trial Court further found that the Civil Court has no jurisdiction to entertain the suit. Consequently the Trial Court dismissed the suit.
5. As against the judgment of the Trial Court the plaintiff filed an appeal in A.S. No. 297 of 1982 on the file of the 5th Additional Judge, City Civil Court, Madras. The Appellate Court found that the plaintiff was retrenched from service, but, however, the Appellate Court dismissed the appeal and confirmed the Judgment of the Trial Court on the ground that the Civil Court has no jurisdiction to entertain the suit and that the proper remedy available to the plaintiff would be to raise an industrial dispute under the provisions of the Act. Aggrieved by the Judgment of the Courts below the plaintiff has filed the present second appeal.
6. Mr. Fenn Walter, learned counsel for the plaintiff, would contend that some of the provisions of the Act are incorporated in the Indian Railway Establishment Code and in the Indian Railway Establishment Manual and the suit filed by the plaintiff in the Civil Court for declaration that the retrenchment of the plaintiff from service by the defendant is illegal and void and that he is deemed to continue in service with all benefits on the ground of violation of the provisions of the Act, and the statutory rules framed by the Railway Board is maintainable in view of Rule 149(6) of the Indian Railway Establishment Code. I am unable to accept the contention of the Learned counsel for the plaintiff.
7. The plaintiffs specific case in the suit is that he is a casual worker under the defendant and his services from 21.10.1975 till his retrenchment on 21.12.1976 was continuous one and as he has rendered a continuous service for more than 240 days during the period from 21.10.1975 to 20.12.1976 without paying or offering retrenchment compensation is violative of Section 25-F of the Act. His further case is that his retrenchment from service retaining his juniors in service is contrary to Section 25-F(a), 25-F(b), 25-G and 77 of the Act. Thus the averments in the plaint clearly show that the claim of the plaintiff is made on the ground of violation of provisions of the Act. Rule 149(6) of the Indian Railway Establishment Code itself says that notwithstanding anything contained in Clauses (1), (2) and (4) of the said Rule if the Railway servant or an apprentice is one to whom the provisions of the Act apply, he shall be entitled to notice or wage in lieu thereof in accordance with the provisions of that Act. The above mentioned Rule 149(6), itself says that the Railway servant to whom the provisions of the Act apply shall be entitled to the remedies available only under that Act. Therefore, when the plaintiff claims that his retrenchment from service is contrary to Sections 25-F, 25-F(a), 25-F(b), 25G and 77 of the Act, the plaintiff has to seek his remedy only through the machinery provided under the Act. It is well settled position of law that the jurisdiction of the Civil Court to try a suit of a Civil nature is assumed unless statutorily it has been taken away either expressly or by necessary implication. If the provisions of the Industrial Disputes Act are examined, it is clear that they impliedly exclude the jurisdiction of the Civil Court to try industrial disputes which could be referred to for adjudication under Section 10(1) of the Act. The Industrial Disputes Act is a self-contained Code providing for settlement of Industrial Dispute by special forums. When such special forums are provided in the Industrial Disputes Act for the adjudication of the disputes arising under the Act, the jurisdiction of the Civil Court to try the Industrial disputes is impliedly taken away. In Krishnan and Anr. v. East India Distilleries and Sugar Factory Ltd. Nellikuppam and Anr. (1964) 2 I LLJ 217, this Court dealing with a similar question has held as follows:
"The question then is whether if the dispute is an industrial dispute and the same could be referred for adjudication under Section 10(1) of the Industrial Disputes Act, it takes away the jurisdiction of the Civil Court to try the action involving such a dispute, it is well known that the jurisdiction of the Civil Court to try a suit of a civil nature is assumed unless statutorily it is taken away either expressly or by necessary intendment, it seems to me that if the scheme and the provision of the Industrial Disputes Act are regarded, it would be plain that they impliedly exclude the jurisdiction of the Civil Court to try industrial disputes which can well be referred to for adjudication under Section 10(1) of the Act to Labour Court. The very objective of the Act is to provide for investigation and settlement of industrial disputes. For that purpose the Act defines "Industrial Dispute" and draws a scheme of conciliation and settlement, failing settlement reference to and adjudication by arbitration and other means by setting up a series of tribunals, like conciliation boards, courts of enquiry, labour courts and industrial tribunals. Elaborate provisions have been made in the Act regarding the powers of the Government to make reference, procedure to be followed by the tribunals, the binding character of awards and the implementation thereof. The Industrial Disputes Act is therefore a self-contained code providing for settlement of industrial disputes by special forums. There is no doubt, therefore, that the whole object and scheme of the Act, is to take away industrial disputes from the purview of Civil Courts with a view to secure expeditious and effectual adjudication of such disputes and to serve and promote Industrial peace".
8. The dispute raised in the plaint in this suit being in the nature of an industrial dispute the jurisdiction of the Civil Court to decide such dispute is impliedly barred. The decisions relied on by learned counsel for the plaintiff, namely :-1. Annad Das Gupta v. Union of India, (1969) I LLJ 373; 2. (1987) I LLJ 517; and 3. ICI (India) Private Ltd. v. The 2nd Industrial Tribunal, West Bengal, (1972) 2 LLJ 462 have no application to the facts of the present case, because, in those decisions the question whether the Civil Courts have jurisdiction to entertain and decide suits involving Industrial disputes, was not dealt with. In my view, both the Courts below took the correct view when they held that the Civil Court has no jurisdiction to try the present case. There are no merits in the second appeal and the same is liable to be dismissed. Accordingly, the second appeal is dismissed, but in the circumstances, there is no order as to costs.