Madras High Court
Tata Communications Ltd vs S.Komalavalli on 13 September, 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13.09.2011 CORAM THE HON'BLE Mr. JUSTICE K.VENKATARAMAN C.R.P. (PD) No.1004 of 2011 and M.P.Nos.1 to 3 of 2011 1.TATA Communications Ltd., rep. by its General Manager (Corporate Services), Plot No.C21 & C36, "G" Block, Bandra Kurla Complex, Vidyanagari P.O., Mumbai-98. 2.TATA Communications Ltd., rep. by its General Manager (Corporate Services), No.4, Swami Sivananda Salai, Chennai-2. 3.V.Natarajan ... Petitioners Vs. S.Komalavalli ... Respondent Civil Revision Petition has been filed under Article 227 of the Constitution of India against the suit filed by the respondent herein before the IV Assistant City Civil Court, Chennai in O.S.No.1996 of 2011 and to strike off the plaint. For petitioners : Mr.G.Masilamani, S.C., for Mr.C.Mohan, for M/s.King and Patridge For respondent : Mr.I.Arockiasamy, for Mr.P.Mohanraj O R D E R
The present civil revision petition is directed to strike off the plaint in O.S.No.1996 of 2011 on the file of the learned IV Assistant Judge, City Civil Court, Chennai.
2. The defendants in the said suit are the petitioners herein and the plaintiff thereon is the respondent.
3. The respondent herein has laid the said suit against the petitioners for declaration that the charge sheet issued by the first petitioner dated 11.1.2011 is invalid, void ab-initio null and void and not binding on her and for permanent injunction restraining the petitioners herein from in any way taking action based on the said charge sheet and interfering with her employment and service rights. The petitioners herein seeking to strike off the said plaint, have come up with the present civil revision petition.
4. The grounds on which the present civil revision petition is laid are:-
(i) The Court where the suit has been filed by the respondent has no jurisdiction to entertain the suit.
(ii) The relief claimed in the suit is specifically barred under Section 14 (1)(b) of the Specific Relief Act, 1963.
5. Mr.G.Masilamani, learned Senior Counsel appearing for the petitioners made an elaborate argument to support his contention that the Civil Court has no jurisdiction to entertain the suit for the reliefs claimed by the respondent herein in the said suit. He has contended that the respondent herein is enforcing the contract of personal service against the will and consent of the employer and hence, the suit filed by the respondent herein is not maintainable. He has further contended that the respondent cannot restrain the management from taking domestic enquiry against its employees. If the management feels that the respondent has committed misconduct, it has got every right to hold domestic enquiry.
6. On the other hand, learned counsel appearing for the respondent contended that the relief sought for by the respondent in her suit is perfectly maintainable before the Civil Court. He has further contended that the reliefs sought for by the respondent in the suit cannot be agitated before any forum. Further, he has contended that the relief claimed in the suit by the respondent herein is not barred under Section 14(1)(b) of the Specific Relief Act, 1963.
7. I have considered the submissions made by the learned Senior Counsel appearing for the petitioners and the learned counsel appearing for the respondent.
8. Before adverting to the said rival contentions, it would be useful to first deal with the claim made by the respondent herein in the said suit. The averments made in the suit, in nutshell, are set out here under:-
(a) The department of Tele Communications Overseas Communication Service which came under the Central Government of India earlier was converted as Videsh Sanchar Nigam Limited (VSNL) and consent on the privatization, the same became TATA Communications Limited. The respondent herein is an employee working as Senior Assistant Grade of the petitioners' company at Chennai. She directly comes under the immediate administrative control of the second petitioner herein.
(b) The employees had formed "VSNL Employee Co-operative Housing Society" to cater the welfare of the employees. The society is in possession 32.50 acres of land situated at Padianallure Village, Ponneri Taluk, Thiruvallur District and it is being allotted to the eligible members of the society. One Joseph Manoharan claiming himself to be the Secretary of the Union of VSNL Federation started collecting monies from the employees on the pretext that they will be allotted the plots. A criminal complaint was lodged against the said person and the matter is under investigation. A report was also sent to the Registrar (Housing). That apart, the respondent herein has filed a writ petition before this Court for a mandamus directing the Registrar (Housing) to consider her representation. The third petitioner was one of the beneficiaries under the society.
(c) When the mistakes of the society were published in the Tamil fortnightly, it has angered the petitioners. A show cause notice was issued to her stating that she has distributed the aforesaid issues in the fortnightly without prior intimation or permission from the superiors. A detailed reply was sent to the said authorities. However, the first petitioner issued a charge memo repeating the very same allegations and a reply was submitted.
(d) The reliefs that have been sought for by the respondent are:-
(i) Declaration that the charge sheet against this plaintiff issued by the first defendant in No.HQ-B/08-04/2010/Legal/143 dated 11.1.2011 is invalid, void ab-inito null and void, and not binding on the plaintiff;
(ii) Permanent injunction restraining the defendants their subordinates, agents, men, or any one acting on their behalf from in any way taking action based on the charge sheet in No. No.HQ-B/08-04/2010/Legal/143 dated 11.1.2011 or on the allegations made out therein and interfering with the employment and service rights of the plaintiff;
(iii) for costs of the suit.
9. Now, the issue that has to be considered is whether the suit filed by the respondent herein is maintainable before the Civil Court and that whether the Civil Court has no jurisdiction to entertain the suit.
10. In AIR 1975 SUPREME COURT 2238 The Premier Automobiles Ltd. vs. Kamalakar Shantaram Wadke and others, the issue raised in the present civil revision petition came in for consideration. The Hon'ble Apex Court, after considering the relevant provisions under the Industrial Disputes Act, 1947 viz., Section 2(k), 2(p), etc., has summed up the principles applicable to the jurisdiction of the Civil Court in relation to an Industrial Dispute with the following manner:-
" (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 oran 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 V-A then the remedy for its enforcement is either Section 33-C or the raising of an industrial dispute, as the case may be. "
The question that came up for consideration before the Hon'ble Apex Court in the said decision was pertaining to an incentive scheme providing for certain incentive payment to the workmen of the Motor Production Department of the Premier Automobiles Limited. The claim against the company was that the settlement arrived at between the company and the association under Section 18(1) of the Industrial Disputes Act, 1947 was not binding on those workmen who were not its members. While the matter came up before the Hon'ble Apex Court, the principles applicable to the jurisdiction of the civil Court in relation to the industrial dispute were set out by the Hon'ble Apex Court.
11. Now, it has to be seen whether the dispute raised by the respondent herein is an industrial dispute or it relates to enforcement of any other right under the Industrial Disputes Act. If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Industrial Disputes Act as held by the Hon'ble Apex Court, the remedy lies only before the Civil Court. The dispute undoubtedly is not an industrial dispute or it relates to enforcement of any other right under the Industrial Disputes Act. The reason being that Section 2-A of the Industrial Disputes Act defines what is industrial dispute, which is usefully extracted here under:-
"2-A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute:- Where any employer discharges, dismisses, retrenches orotherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute. "
Thus, if an employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, it could be agitated in a manner prescribed under the Industrial Disputes Act, 1947. In the given case on hand, the respondent herein challenges the very issuance of charge sheet issued to her on the grounds raised in her suit which is obviously cannot be agitated in a manner prescribed under the Industrial Disputes Act. If there is no provision for adjudication of such dispute under the said Act, it cannot be said that Civil Courts have no jurisdiction to decide the issue raised by the respondent herein. In this connection, it would be useful to extract Section 9 of the Code of Civil Procedure, which is extracted here under:-
"9. Courts to try all civil suits unless barred:- The Courts shall (subject to the provisions contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation I: A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
Explanation II: For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place."
The said provisions makes it very clear that the Civil Court has got jurisdiction to decide all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Absolutely, no materials have been placed before me showing any Standing Orders of the company which prevents the respondent herein in approaching the Civil Court. That apart, as stated already, against the order of dismissal, retrenchment, etc., as provided for under Section 2-A of the Industrial Disputes Act, the respondent may have a remedy under the Industrial Disputes Act. However, the claim of the respondent herein in her suit cannot be agitated before the authorities envisaged under the Industrial Disputes Act.
12. Yet another decision that has been relied on by the learned counsel appearing for the respondent is reported in 1995 (I) CTC 318 Virudhunagar Sarvodaya Sangh vs. S.Sathiyathinakaran. In the said matter, an employee has filed a suit before the Additional District Munsif, Sattur, challenging the order of suspension passed against him. When the question came for consideration whether the suit is maintainable, this Court, in the said decision, has held that a suit for declaration that the suspension of service is invalid, is maintainable in law before the Civil Court since there is no express or implied bar from entertaining the suit. Paragraphs 11 to 13 of the said judgment are usefully extracted here under:-
"11. So far as the facts of this case are concerned, as stated earlier, the reliefs prayed for are two, and the second is for recovery of salary, which is a common law dispute, arising on the basis of the contract between the employer and employee. It is one of the service conditions that the employee will be paid his dues every month. It is not an industrial dispute, nor does it relate to enforcement of any other right under the Act. So, by no stretch of imagination, can it be said that the second relief sought for in the plaint is in any way barred under section 9 C.P.C. The second guideline given in the Premier Automobiles case is, ' if the dispute is an industrial dispute arising out of a right or liability under the general common law and not under the Act, the jurisdiction of the civil Court is alternative, leaving it to the election of the Suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy'. The learned counsel for the respondent also did not dispute that the plaintiff is an employee of the defendant and, going by the definition of 'industrial dispute' under the Industrial Disputes Act, it could be construed as an industrial dispute.
'Industrial Dispute' has been defined under Section 2(k) of the Industrial Disputes Act. It reads thus:-
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.
It is relevant to take note of Section 2-A of the Act. It says thus:-
"Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute."
Under the definition given as per Section 2 (k) (extracted supra), to be an 'industrial dispute', the case must be taken by the Union or other workers even though it pertains to the conditions of labour of a particular person. In the case of Section 2-A of the Industrial Disputes Act, in a case where the workman is discharged, dismissed or retrenched, even if it is a case where the Union does not take the cause, it will be an industrial dispute. In this case, admittedly, the plaintiff has not been dismissed, discharged or retrenched. He has only been suspended for a period of 30 days. So, Section 2-A of the Act has no application. Section 2(k) of the Act also may not have any application, because, the respondent's cause is not taken up by any other Union or other workmen. So, even if it is a case of industrial Dispute, the Act does not provide for any remedy. Further, in the suit, the plaintiff is not seeking for any specific performance. He seeks only a declaration that the suspension is invalid.
12. When a workman is dismissed from service, it is settled law that he can seek his grievance redressed through a civil Court by seeking a declaration that his dismissal is invalid and also sue for damages. Only in a case where he seeks for reinstatement, i.e., specific performance of reinstatement, the question of enforcement of a right provided under the Act arises. In such a case, he may have to move only the Labour Court. In this case, the question of reinstatement does not arise. An enforcement which is provided under the Industrial Disputes Act also does not arise in this case. For, he continues to be in employment. A suspension will not amount to non employment. It is only keeping away the employee from work during the time of investigation. It is also not a case where any condition of labour is violated. It is within the power of the Master to suspend an employee for any alleged misconduct. There is no condition of service that an employee shall not be suspended during the enquiry.
13. The Industrial Disputes Act also does not take away that right of the Master. Only for wrongful dismissal, or retrenchment or discharge from duties, Industrial Disputes Act makes a provision for a redressal through the Labour Court. According to the guideline 2 enunciated in the Premier Automobiles case by the Apex Court, even if the dispute is an industrial dispute, arising out of right or liability under the general common law and not under the Act, the employee has got a right to move the civil Court, to get a declaration that the action of the employer is illegal. The machinery under the Industrial Disputes Act is not necessary, for, he is not enforcing a right or obligation created under that Act. Under the General law, the employee is always entitled to move the civil Court for the wrong done to him except for which provisions have been made under the Industrial Disputes Act. The common law right is not taken away. If that be so, he has the option to move the civil Court"
13. The present issue came for consideration before the Hon'ble Apex Court in the judgment reported in (2009) 4 Supreme Court Cases 299 Rajasthan State Road Transport Corporation and another vs. Bal Mukund Bairwa (2). Paragraphs 12, 13, 14, 41 and 42 of the said judgment are usefully extracted here under:-
" 12. Section 9 of the Code is in enforcement of the fundamental principles of law laid down in the maxim ubi jus ibi remedium. A litigant, thus having a grievance of a civil nature has a right to institute a civil suit in a competent civil court unless its cognizance is either expressly or impliedly barred by any statute. Ex facie, in terms of Section 9 of the Code, civil courts can try all suits, unless bared by the statute, either expressly or by necessary implication.
13. The civil court, furthermore, being a court of plenary jurisdiction has the jurisdiction to determine its jurisdiction upon considering the averments made in the plaint but that would not mean that the plaintiff can circumvent the provisions of law in order to invest jurisdiction on the civil court although it otherwise may not possess. For the said purpose, the court in given cases would be entitled to decide the question of its own jurisdiction upon arriving at a finding in regard to the existence of the jurisdictional fact.
14. It is also well settled that there is a presumption that a civil court will have jurisdiction and the ouster of civil court's jurisdiction is not to be readily inferred. A person taking a plea contra must establish the same. Even in a case where the jurisdiction of a civil court is sought to be barred under a statute, the civil court can exercise its jurisdiction in respect of some matters particularly when the statutory authority or tribunal acts without jurisdiction.
41. There is another aspect of the matter which cannot also be lost sight of, namely, where the conditions of service are governed by two statutes, the effect thereof on an order passed against an employee/workman in violation of a rule which would attract both the statutes. An attempt shall be made in a case of that nature to apply the principles of harmonious construction.
42. When there is a doubt as to whether the civil court has jurisdiction to try a suit or not, the courts shall raise a presumption that it has such jurisdiction. "
14. Yet another decision that has been relied on by the learned counsel appearing for the respondent is reported in II LLJ 1995 SC 728 The Rajasthan State Road Transport Corporation and anr. Etc. etc., vs. Krishna Kant etc. etc. In the said decision, the Hon'ble Apex Court has held that jurisdiction of a Civil Court is not ousted if the dispute would not fall under Section 2K or 2A of the Industrial Disputes Act, 1947. Paragraph 18 of the judgment made thereunder is usefully extracted here under:-
"18. The expression Industrial Dispute is defined in Section 2(k) to mean any dispute or difference (i) between employers and employers; (ii) between employers and workmen; and (iii) between workmen and workmen, provided such dispute is connected with the employment, non-employment, terms of employment or conditions of labour of any person. It is well settled by several decisions of this Court that a dispute between the employer and an individual workman does not constitute an industrial dispute unless the cause of the workman is espoused by a body of workmen (see Bombay Union of Journalists v. The Hindu9). Of course, where the dispute concerns the body of the workers as a whole or to a section thereof, it is an industrial dispute. It is precisely for this reason that Section 2-A was inserted by Amendment Act 35 of 1965. It says where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute. By virtue of this provision, the scope of the concept of industrial dispute has been widened, which now embraces not only Section 2(k) but also Section 2-A. Section 2-A, however, covers only cases of discharge, dismissal, retrenchment or termination otherwise of services of an individual workman and not other matters, which means that to give an example if a workman is reduced in rank pursuant to a domestic enquiry, the dispute raised by him does not become an industrial dispute within the meaning of Section 2-A. (However, if the union or body of workmen espouses his cause, it does become an industrial dispute.) We have given only one instance; there may be many disputes which would not fall within Section 2(k) or Section 2-A. It is obvious that in all such cases, the remedy is only in a civil court or by way of arbitration according to law, if the parties so choose. The machinery provided by the Industrial Disputes Act for resolution of disputes (in short Sections 10 or 12) does not apply to such a dispute."
15. Now, we will consider the judgment relied on by the learned Senior Counsel appearing for the petitioners. The first decision is reported in (2004) 3 Supreme Court Cases 172 Pearlite Liners (P) Ltd., vs. Manorama Sirsi. By relying on the said decision, learned counsel appearing for the petitioners contended that enforcement of a contract of personal services cannot be agitated by filing a civil suit. However, I am of the considered view that the said judgment may not be applicable to the facts of the present case since the employee in the said suit has filed the suit for declaration that the transfer order made by an employer is illegal, void, inoperative and further sought for a declaration that she is to be treated in service of the company and entitled for all emolument including the salary. The further relief that has been sought for was for permanent injunction restraining the employer from holding any enquiry against the employee on the ground that she has not complied with the order of transfer. In those circumstances, the Hon'ble Apex Court has held that transfer order is a normal incidence of service and that there is a term in the contracted service for such transfer. The further declaration that has been sought for therein that the employee continues to be in service amounts to enforcing the contract of the personal service which is barred under law. Paragraphs 8 and 10 of the order made thereunder are usefully extracted here under:-
"8. The present case does not fall in any of the three exceptions. It is neither a case of public employment so as to attract Article 311 of the Constitution of India nor is a case under the Industrial Disputes Act. The defendant is not a statutory body. There is no statute governing her service conditions. The present is a case of private employment which normally would be governed by the terms of the contract between the parties. Since there is no written contract between the parties, the dispute cannot be resolved with reference to any terms and conditions governing the relationship between the parties. The plaintiff has neither pleaded nor has there been any effort on her part to show that the impugned transfer order was in violation of any term of her employment. In the absence of a term prohibiting transfer of the employee, prima facie, the transfer order cannot be called in question. The plaintiff has not complied with the transfer order as she never reported for work at the place where she was transferred. As a matter of fact, she also stopped attending the office from where she was transferred. Non-compliance with the transfer order by the plaintiff amounts to refusal to obey the orders passed by superiors for which the employer can reasonably be expected to take appropriate action against the employee concerned. Even though it is a case of private employment, the management proposed to hold an enquiry against the delinquent officer, that is, the plaintiff. In case of such insubordination, termination of service would be a possibility. Such a decision purely rests within the discretion of the management. An injunction against a transfer order or against holding a departmental enquiry in the facts of the present case would clearly amount to imposing an employee on an employer, or to enforcement of a contract of personal service, which is not permissible under the law. An employer cannot be forced to take an employee with whom relations have reached a point of complete loss of faith between the two.
10. The question arises as to whether in the background of the facts already stated, such reliefs can be granted to the plaintiff. Unless there is a term to the contrary in the contract of service, a transfer order is a normal incidence of service. Further, it is to be considered that if the plaintiff does not comply with the transfer order, it may ultimately lead to termination of service. Therefore, a declaration that the transfer order is illegal and void, in fact amounts to imposing the plaintiff on the defendant in spite of the fact that the plaintiff allegedly does not obey order of her superiors in the management of the defendant Company. Such a relief cannot be granted. Next relief sought in the plaint is for a declaration that she continues to be in service of the defendant Company. Such a declaration again amounts to enforcing a contract of personal service which is barred under the law. The third relief sought by the plaintiff is a permanent injunction to restrain the defendant from holding an enquiry against her. If the management feels that the plaintiff is not complying with its directions it has a right to decide to hold an enquiry against her. The management cannot be restrained from exercising its discretion in this behalf. Ultimately, this relief, if granted, would indirectly mean that the court is assisting the plaintiff in continuing with her employment with the defendant Company, which is nothing but enforcing a contract of personal service. Thus, none of the reliefs sought in the plaint can be granted to the plaintiff under the law. The question then arises as to whether such a suit should be allowed to continue and go for trial. The answer in our view is clear, that is, such a suit should be thrown out at the threshold. Why should a suit which is bound to be dismissed for want of jurisdiction of a court to grant the reliefs prayed for, be tried at all? Accordingly, we hold that the trial court was absolutely right in rejecting the plaint and the lower appellate court rightly affirmed the decision of the trial court in this behalf. The High Court was clearly in error in passing the impugned judgment whereby the suit was restored and remanded to the trial court for being decided on merits. The judgment of the High Court is hereby set aside and the judgments of the courts below, that is, the trial court and the lower appellate court are restored. The plaint in the suit stands rejected. "
Thus, considering the relief that has been sought for in the said matter, the Hon'ble Apex Court in the said decision has held that the claim made by the employee is barred by law. That apart, after a full-fledged trial of the suit and after the disposal of the appeal, the said matter came in for consideration before the Hon'ble Apex Court. However, in the present case on hand, the petitioners have filed the civil revision petition to strike off the plaint itself.
16. Yet another decision that was relied on by the learned Senior Counsel appearing for the petitioners is reported in 2008 (1) CTC 288 Bannari Amman Sugars Limited, rep. by its Chairman, No.1212, Trichy Road, Coimbatore-641 018 vs. R.Sakthivel. In the said decision, this Court has held that the suit for permanent injunction restraining the domestic enquiry by Master against servant is not maintainable as it is in nature of enforcing a contract for personal service and covered by Section 41 of the Specific Relief Act. Section 14 (1) (b) of the Specific Relief Act is usefully extracted here under:-
"14. Contracts not specifically enforceable:- (1) The following contracts cannot be specifically enforced, namely:-
(a) ...
(b) a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms;
(c) ...
(d) ... "
The said provision only provides a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, then only the Court cannot enforce specific performance of its material terms. In the case on hand, the relief claimed by the respondent herein does not attract Section 14 (1) (b) of the Specific Relief Act. The bar under Section 14 (1) (b) of the Specific Relief Act will have no bearing in the case on hand.
17. While holding that the suit filed by the respondent is maintainable, now it has to be seen whether the grounds set out in the plaint by the respondent, require the Civil Court to adjudicate the matter, even though the suit is maintainable.
18. It is the case of the respondent that she is an employee working as Senior Assistant grade "NE-C" of the petitioner company at Chennai. The employees had formed VSNL Employees Co-operative Housing Society to cater the welfare of the employees. The Special Officer indiscriminately allotted plots and executed sale deeds to his choice. The respondent was taking efforts in curtailing the mis-deeds by making representation to the Registrar (Housing) etc. The third petitioner / third defendant was one of the beneficiary. The respondent also preferred a criminal complaint against the Special Officer before the Chief Metropolitan Magistrate, Egmore to direct the D.C. Of C.C.B Egmore to register FIR, investigate and report. Hence, a problem arose between the management and the members of the Society in the matter of allotment of lands. The said problem regarding the distribution of land was published in the Tamil Nadu fortnightly called "Gnayiru" in its issue. Thereafter, the first petitioner issued a show cause notice dated 10.12.2010 stating that she had distributed the issue in the fortnightly without prior intimation and permission of the superiors. The respondent herein made a reply. However, she was issued with a charge memo. The respondent challenging the charge memo issued to her had filed a suit for the following reliefs:
(a) Declaration that the charge sheet against this plaintiff issued by the first defendant in No.HQ-B/08-04/2010/Legal/143 dated 11.1.2011 is invalid, void ab-initio null and void, and not binding on the plaintiff
(b) Permanent injunction restraining the defendants their subordinates, agents, men, or nay one acting on their behalf, from in any way taking action based on the charges sheet in No.HQ-B/08-04/2010/Legal/143 dated 11.1.2011 or on the allegations made out therein and interfering with the employment and service rights of the plaintiff;
19. Now, it has to be seen under what ground or what reason, the respondent herein has challenged the said charge sheet. In this connection, it would be useful to extract paragraphs 13 to 16 of the plaint:
"13. The plaintiff states that the first defendant issued a charge sheet in his letter No.HQ/B/08-04/2010/legal/143 dated 11.1.2011, repeating the very same allegations made in the show cause notice and required the Explanation of the plaintiff to the charge sheet. This plaintiff has sought for time and the first respondent by his letter No.HQ.B/08-04/2010/legal dt.4.2.11 stated that the company is proceeding further.
14. The plaintiff states that the law as laid down by the various statues and the High Courts and Supreme Court of the Country prescribes certain norms and mandatory requirements for the Employer in dealing with the charge sheet to be issued to its employees. The first Defendant is also bound by the law of the land in respect of filing of charge sheet, and he has deliberately failed to follow the law laid down.
15. The plaintiff states that the charge sheet issued to her is vague and prima-facie it does not show any wrong committed by the plaintiff for the issuance of a charge sheet. There is nothing apparent on the face of it to show that the charges alleged to have been committed is in the course of the employment of the Defendants. The first defendant has to follow certain mandatory provisions for issue of the charge sheet as laid down by the Judicial dicta but the first defendant has deliberately with ulterior motive failed to follow the same resulting in the issue of charge sheet, which is vitiated.
16. The plaintiff states that she believes that issuance of the show cause notice itself is with some ulterior motive, and on the inducement of the third defendant and at the instance of several persons who have nexus with the allocation of plots to the employees of the first defendant company and who are members of the VSNL Employees Co-operative Society. There is no indication as to how the explanation submitted by the plaintiff is found not satisfactory to enable the first defendant to issue the charge sheet. The statement of allegations based on which the charge is framed, the copies of documents on which the prosecution is going to establish the charge against their employee and the list of names of witness for the employer who are proposed to adduce evidence during the enquiry, are to be furnished along with the charge sheet, otherwise the enquiry is vitiated. All these are not furnished with the charge sheet. Therefore the charge sheet becomes void and non-est in law. No further action can be taken based on a void charge sheet. The plaintiff wants to establish her statutory and legal rights under law. Hence this suit."
20. The above extracted portion of the plaint discloses that the respondent is trying to make out that the issuance of show cause notice itself is with ulterior motive, on the inducement of the third petitioner and at the instance of several persons who have nexus with the allotment of plots. Further, it is stated that there was no indication as to how the explanation submitted by the respondent was found to be unsatisfactory, so as to enable the first petitioner to issue charge sheet. Further, the respondent herein has made out that to establish the charge against her, the list of names of the witnesses for the employer have to be furnished. Since, the same has not been furnished, the enquiry cannot be initiated.
21. Thus, the reasons set out above are the only reasons which made the respondent to file the said suit. If the petitioners herein have not furnished the list of witnesses or have not furnished the required particulars, the respondent should make a claim for the same. Whether the show cause notice is tainted with mala fide or not, has to be tested only when the full-fledged enquiry is conducted and an outcome is made by passing orders. It would be a premature stage to come to a conclusion that the enquiry will be a farce.
22. It is not the case of the respondent herein that there is a violation of fundamental rights or violation of accepted norms or canons of law. As stated already, the suit is though maintainable, the purpose of the suit, the claim of the suit, the grounds on which the suit has been filed and the relief that has been sought for in the suit are the paramount considerations to entertain the suit, especially when there are alternative remedies available to the respondent in agitating her right.
23. In this context, I am of the considered view that the reason for filing the suit, the claim made thereunder and the relief that has been sought for in the suit basing on the reasons found therein are not justifiable one to allow the suit to proceed. There should be a strong or justifiable reason to maintain the suit. If the petitioners can agitate the reasons set out in the plaint in the domestic enquiry to be conducted, there is no rhyme or reason to allow the respondent to maintain the suit or proceed with the suit. Since, no strong reason has been made out by the respondent herein in the suit filed by her, I am of the considered view that the respondent cannot maintain the present suit before the Civil Court.
24. In view of the above reasonings, the irresistible conclusions that have been arrived at by me are:-
(i) If the subject matter is not disputed as defined under the Industrial Disputes Act, 1947 as in the present case, the suit is perfectly maintainable before the civil Court.
(ii) However, the basis of the claim, the reasoning of filing of the suit and the grounds made thereunder make this Court to feel that the respondent herein has not made out any case or has not made out any justifiable ground to maintain the suit filed by her.
25. In fine, the Civil Revision Petition stands allowed. Consequently, connected miscellaneous petitions are closed. However, no order as to costs.
sbi/pgp To
1.The Registrar, City Civil Court, Chennai