Calcutta High Court (Appellete Side)
Ram Prasad Chandra vs Budge Budge Floor Coverings Ltd on 2 December, 2013
Author: Indira Banerjee
Bench: Indira Banerjee
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
FA 259 Of 2013
RAM PRASAD CHANDRA
Vs.
BUDGE BUDGE FLOOR COVERINGS LTD.
B E F O R E:
The Hon'ble Justice INDIRA BANERJEE
And
The Hon'ble Justice ANINDITA ROY SARASWATI
For the appellant : Mr. Udayan Dutta,
Nurul Islam Mondal
For the respondent : Mr. Dipak Kr. Ghosh,
Mr. Gobinda Chowdhury,
Mr. Ranjay De
Heard on : 03.09.2013, 17.09.2013, 19.09.2013, 26.09.2013.
Judgment on : 02.12.2013
INDIRA BANERJEE, J.: This appeal, filed by the plaintiff in Title Suit
No. 1402 of 2006, is directed against an Order No. 40 dated 18 August
2012, passed by the Learned Judge, 7th Bench, City Civil Court, Calcutta,
inter alia holding that the Court did not have jurisdiction to entertain the
suit, and in effect dismissing the same.
The short question involved in this appeal is, whether a suit filed by
an employee, who is not a workman within the meaning of the Industrial
Disputes Act, 1947, in a Civil Court, seeking inter alia a declaration that he
is an employee of the defendant, and further seeking a direction on the
defendant to release arrears of salary due to him, can be dismissed on the
ground that the employer had issued a notice of 'suspension of operations'
at its factory, the legality of which was pending adjudication before the
Second Industrial Tribunal, pursuant to an order of reference made by the
State Government.
The plaintiff, who was an employee of the defendant, at its factory at
Birlapur in South 24 Paraganas, served in different capacities, and was
ultimately promoted as Senior Supervisor, Quality Control Department and
drew a salary of about Rs.12,271/-.
On or about 29th of October 2003, the defendant put up a notice of
'Suspension of Operation' at its factory on and from 29th of October 2003
and started preventing the workmen of the company from joining their
duties, even though there was, according to the plaintiff, enough work
available.
According to the plaintiff, the plaintiff was wrongfully restrained
and/or prevented from attending to his duties. The plaintiff claims that the
plaintiff is entitled to receive Rs.4, 37,858, towards salary and allowances,
for the period from November 2003 to 2nd August 2006, as per the details
given in the Plaint.
It is the case of the plaintiff in the plaint, that on the pretext of
suspension of operation, the defendant has not only denied salary to the
workmen, but also to some non-workmen like the plaintiff. The plaintiff has
alleged that, in spite of demands, the defendant has neither paid the salary
of the plaintiff, nor allotted any work to him.
By an order dated Kolkata 4th October 2005, the Labour Department
of the Government of West Bengal referred to the 2nd Industrial Disputes
Tribunal, for adjudication, the following issues:
"1 (a) whether, the suspension of work declared by the
Management of M/s Birla DLW Ltd. with effect from 29 - 10 -
03 is justified?
(b) what relief, if any, are the workmen entitled to?
2 (a) whether the demand of the Unions raised with regard to
(i) Basic Wages (ii) grade and scale of pay, (iii)VDA (iv)
Permanency, (v) Cheap Canteen Facility and (vi) bonus is
justified?
(b) what relief, if any, aren't the workmen entitled to?"
The plaintiff filed the above mentioned suit, seeking a declaration, that
the plaintiff was an existing employee of the defendant, and praying for a
decree for payment of outstanding salary of Rs.4,37,858/- and other
consequential reliefs.
The defendant filed its written statement and contested the suit, inter
alia taking a preliminary objection to the maintainability of the suit on the
contention that the Industrial Disputes Act 1947, by implication, clearly
excluded the jurisdiction of the Civil Courts, in respect of matters covered by
the said Act.
The defendant filed an application in the said title suit, praying for
adjudication of the preliminary objection taken by the defendant, to the
maintainability of the suit. The plaintiff opposed the said application stating
that the plaintiff was not a workman, within the meaning of the Industrial
Disputes Act, and was, therefore, not governed by the said Act.
On behalf of the defendant, it was argued that the disputes raised by
the defendant had been referred to and was pending adjudication before the
Second Industrial Tribunal and, therefore, the suit should not be
entertained.
By the judgment and order under appeal the Court inter alia held:-
"In the instant suit, there is no case that the service
of the plaintiff has been terminated by the defendant
company. Since it is not a case of reinstatement in the
service by challenging the order of termination I find no
reason to consider the contention that the suit is not
maintainable since the contract of employment cannot be
enforced. I am of the considered view that the contention of
the defendant, that the suit is not maintainable since the
contract of personal service is not specifically enforceable,
suffers from merit as because in the instant suit there is no
such case of the plaintiff for reinstatement in service by
challenging any order of termination of his service.
The notice of suspension of operation in the
defendant company is no doubt an industrial dispute as per
definition 2(k) of the Act, 1947.
It has been laid down in section 7A of the Act, 1947
that "the appropriate Government may, by notification in the
Official Gazette, constitute one or more Industrial Tribunals
for the adjudication of industrial disputes relating to any
matter...."
It is found from the copy of G.O. No. 1267/IR dated
IR/7l-03/98
issued by the Labour Department of Government of West
Bengal that the Government of West Bengal; has referred the
dispute regarding the suspension of work of the defendant
company considering the same as industrial dispute to the
Second Industrial Tribunal.
It is found from the said order that the Government
of West Bengal has referred the issues including issues
"whether the 'suspension of work' declared by the
management of defendant with effect from 29.10.03 is
justified?"
It is no ones case that the said matter has yet been
adjudicated upon the Second Industrial Tribunal.
I am of the considered view that unless and until
the issue regarding suspension of work in the defendant
company be adjudicated upon, the plaintiff has no remedy
for claiming remuneration/salary for the period of
suspension of work.
In my view, the plaintiff can claim remuneration or
salary from the company for the period of continuance of
suspension of operation if the suspension of work be
declared unjustified by the Industrial Tribunal.
In the light of decision of Hon'ble Supreme Court
reported in JT 2002 (1) S.C. 578 the jurisdiction of civil court
must be held to have been impliedly barred and the
appropriate forum would be the forum constituted under the
Industrial Disputes Act.
It has been held by Hon'ble Supreme Court as
reported in AIR 1957 S.C. 223 referred by the plaintiff said
that if the industrial dispute relates to the enforcement of a
right or an obligation created under the act, then only
remedy available to the suitor is to get an adjudication under
the Act.
The plaintiff side has cited another case law
reported in 1979 SCC (L&S) 351 wherein Apex Court has
held that "it is when the main reliefs asked for by the
plaintiff if granted amount to specific performance of the
contract of service that the jurisdiction of the Civil Court is
ousted". In the said case Hon'ble Supreme Court has held
that if a prima facie case is made out that the plaintiff has
been wrongfully dismissed from service and the plaintiff has
prayed for reinstatement and for awarding compensation,
the civil court can examine the matter regarding
compensation."
In view of the entire discussions I am constrained to
hold that the instant suit is not maintainable and this court
has no jurisdiction to try this suit. Accordingly the issue
Nos.1 & 2 are decided against the plaintiff.
Hence, it is
ORDERED
That the suit be and the same is not maintainable."
Counsel appearing on behalf of the appellant, Mr Udayan Datta
submitted that the learned Court below had erred in law in adjudicating the
objection to the maintainability of the suit as a preliminary issues, since
determination of the question of jurisdiction of the Civil Court to decide the
dispute, involved adjudication of mixed questions of law and facts.
Citing the judgement of the Division Bench of this Court in Naresh
Chandra Das vs Gopal Chandra Das reported in AIR 1991 Calcutta 237,
Mr. Dutta Counsel submitted that an issue of law relating to jurisdiction
and bar of suit could only be tried as a preliminary issue if mixed question
of law and facts were not involved.
Counsel also cited the judgement of a Full Bench of the Madhya
Pradesh High Court in M/s Ramdayal Umraomal vs M/s Pannalal
Jagannathji reported in AIR 1979 Madhya Pradesh 153, where the Full
Bench of Madhya Pradesh High Court held:
"The provisions of order 14 rule 2 under the old
Code was as follows:-
..............
This provision makes it clear that the issue as to jurisdiction may be an issue of law or of fact or a mixed issue. The obligation to try the issue of jurisdiction as preliminary arises only when it is an issue of law. Issue of jurisdiction depending on question of fact and, or mixed question of law and fact, must be decided on merits at one and the same time, along with the other issues. If the court finds, on a trial, on merits so far as this issue of jurisdiction goes, that the case is not cognisable by the Court because of want of territorial or pecuniary jurisdiction, the plaint will be ordered to be returned for presentation to the proper court, and if, on the other hand, it finds that having regard to the nature of the suit, it is not cognisable by the class of courts to which the court belongs, the plaintiffs suit will have to be dismissed in its entirety. Discretion to try preliminary issue, of law relating to jurisdiction or bar of suit should be exercised only when it is so clear that the decision will decide the suit finally once and for all without recording of any evidence.
Mr. Dutta finally cited the judgment of the Supreme Court in Ramesh B. Desai Vs. Bipin Vadilal Mehta reported in 2006 AIR SCW 3768 where the Supreme Court concluded the issue by holding that Order 14 Rule 2 of the Civil Procedure Code confers no jurisdiction upon the Court to try a suit on mixed issue of law and fact, as a preliminary issue, and where the decision on issue of law depends upon decision of facts, it cannot be tried as a preliminary issue.
On the other hand, Mr. Ghosh appearing on behalf of the defendant submitted that the plaintiff could not be given work during the period in question, by reason of the notice issued by the defendant, suspending operations on its factory.
Mr. Ghosh submitted that an industrial dispute had been raised by the workmen of the defendant with regard to the legality and/or sustainability of the said notice, which, as observed above, had been referred by the State Government to the 2nd Industrial Tribunal, and was awaiting final decision.
Mr. Ghosh argued that the question of legality of a notice suspending operations, in respect of which, a dispute had been raised by workmen, could only be decided by the appropriate Labour Court/Industrial Tribunal and not by any Civil Court.
There can be no doubt Section 9 of the Civil Procedure Code, by necessary implication, excludes the jurisdiction of the Civil Courts, in respect of matters covered by the Industrial Disputes Act, 1947, as argued by Mr. Ghosh. The question is whether dispute raised by the plaintiff in the Court below is covered by the said Act.
A provision of law, which takes away the jurisdiction of a Civil Court is to be strictly construed. It is well settled by a plethora of judgments of the Supreme Court including the judgments in Dhulabhai Vs. S. reported in AIR 1969 SC 78 and State of Andhra Pradesh Vs. Manjeti Laxmi Kantha Rao reported in AIR 2000 SC 2220, that exclusion of jurisdiction of Civil Court is not to be readily inferred. The jurisdiction of the Civil Court to deal with civil causes can be excluded by the Legislature by Special Acts, to deal with special subject-matters; but the statutory provision must expressly provide for such exclusion, or must necessarily and inevitably lead to that inference.
There can be no doubt that Section 9 of the Civil Procedure Code, confers jurisdiction on Civil Courts to try all suits of a civil nature, except suits, cognizance of which, is either expressly or impliedly barred under any law. The question is, whether the instant suit is either expressly, or impliedly, barred by the Industrial Disputes Act, 1947.
The Industrial Disputes Act, 1947 has been enacted to make provisions for the investigation and settlement of industrial disputes, and for certain other purposes, such as regulation of the terms and conditions of employment of workmen employed in industries.
The expression "industrial dispute" has been defined in Section 2(K) of the Industrial Disputes Act, to mean 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. A dispute between a non-workman and an employer does not fall within the ambit of "industrial dispute" under the said Act.
Section 7(1) of the Industrial Disputes Act provides that the Government might 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 to the said Act, and for performing such other functions as may be assigned to them under the said Act.
Section 7A provides:-
"7A. Tribunals - (1) The appropriate Government may, by notification in the Official Gazette, constitute one ore more Industrial Tribunals for the adjudication of industrial disputes relating to any matter, whether specified in the Second Schedule or the Third Schedule [and for performing such other functions as may be assigned to them under this Act]."
Labour Courts and Industrial Tribunals derive their power to adjudicate disputes from Section 7(1) and Section 7A of the Industrial Disputes Act respectively. The condition precedent for exercise of power to adjudicate, by Labour Courts and Industrial Tribunals, is the existence of an "Industrial Dispute" since the aforesaid sections empower Labour Courts and Tribunals, as the case may be, to adjudicate industrial disputes relating to matters specified in the Second Schedule or the Third Schedule to the said Act.
The Second Schedule and Third Schedule, read with Section 7(1) and Section 7A of the Industrial Disputes Act, empowers the Labour Court and Tribunals, as the case may be, to adjudicate 'industrial disputes' relating to matters specified in the Second Schedule or the Third Schedule to the Industrial Disputes Act.
It is true that any dispute raised by workmen, with regard to the matters specified in the Second Schedule or the Third Scheduled, as the case may be, would necessarily have to be adjudicated by the Labour Court or the Tribunal. However, a dispute with regard to applicability of a notice of suspension of operations, to a non-workman cannot constitute an "industrial dispute".
The Labour Courts and Industrial Tribunals would have no jurisdiction to adjudicate disputes raised by non-workmen, with regard to the closure of operations, suspension of work, lock out etc. including disputes raised by non-workmen with regard to the applicability of notices of closure and/or suspension of operations and/or notices of lock out to such non-workmen.
It is true, that the defendant has, contended that the plaintiff is a workman. The plaintiff has, however, contended time and again, that he is not a workman within the meaning of the Industrial Disputes Act 1947. The definition of the expression 'industrial dispute' does not include any difference of opinion and dispute between an employer and an employee, who is not a workman within the meaning of the Industrial Disputes Act. The question of whether the plaintiff is a workman or not has to be decided upon evidence. If, on evidence, it is found that the plaintiff is a workman, he would be governed by the provisions of the Industrial Disputes Act. If, however, the plaintiff is, held not to be a workman, the suit would have to be adjudicated, since the Industrial Disputes Act would not apply to the plaintiff and the plaintiff cannot be non-suited.
In State of Haryana & Ors. Vs. Bikar Singh reported in 2006 (5) SCALE 344, cited by Mr. Ghosh, the Supreme Court held that where the Civil Court has no jurisdiction to entertain the suit, its decree would be a nullity. There can be no dispute that, where the main dispute falls squarely under the Industrial Disputes Act, the jurisdiction of the Civil Court is specifically barred. The Court would lack jurisdiction to entertain the suit. The decree of such Court being without jurisdiction, would be hit by the doctrine of "coram non juice" and the decree would be a nullity as held by the Supreme Court in Chief Engineer, Hydel Project & Ors. Vs. Ravinder Nath & Ors, also cited by Mr. Ghosh. The aforesaid propositions are unexceptionable.
Mr. Dutta rightly submitted that the suit should not have been rejected, upon consideration of the question of jurisdiction as a preliminary issue. Demurrer is an act of objecting or taking exception by a party to a legal action, that assumes the truth of what has been alleged by the opposite party. Where the question of jurisdiction involves a mixed issue of law and facts, as in the instant case, where the jurisdiction of the Civil Court can only be held to be barred, upon a finding that the plaintiff is a workman, the question of jurisidiction cannot be decided as a preliminary issue. The question has to be decided upon fulfledged trial. This proposition finds support from the judgment of the Supreme Court in Ramesh B. Desai Vs. Bipin Vadilal Mehta (supra) cited by Mr. Dutta.
For the reasons discussed above, we are constrained to hold that the impugned order is not sustainable in law, and the same is set aside and quashed.
The learned Court below shall decide the question of whether the plaintiff is a workman or not, upon evidence, as expeditiously as possible, and in any case, within 2 months from date. In the event, it is found that the plaintiff is not a workman, the suit shall be adjudicated on merits.
The appeal is disposed of accordingly.
Mr. Ranjay De, learned counsel appearing on behalf of the respondent prays for stay of operation of the operative part of this judgment and order. Such prayer for stay is considered and refused.
Let photostat certified copy of this judgment and/or order, if applied for, be supplied to the learned advocates appearing for the parties expeditiously subject to compliance of requisite formalities.
(INDIRA BANERJEE, J.) (ANINDITA ROY SARASWATI, J.)