Andhra HC (Pre-Telangana)
Nizam Sugars Ltd., Distillery Unit vs G. Veeraswamy on 15 December, 1995
Equivalent citations: 1996(2)ALT665, (1996)IILLJ1224AP
ORDER Krishna Saran Shrivastav, J.
1. The defendant in OS. No. 347 of 1994 On the file of the I Additional District Munsif, Kovvur is the petitioner herein.
2. The respondent- plaintiff was working as a Watchman in the petitioner's company. He filed the suit against the petitioner for declaration that the departmental enquiry conducted by the Enquiring Officer Sri P. Ramamurthy on June 1, 1994 is illegal and void and also sought a decree for permanent injunction restraining the petitioner from proceeding with the enquiry. He filed an application I.A. No. 1643 of 1994 for temporary injunction restraining the petitioner from proceeding with the departmental enquiry conducted through the Enquiring Officer Sri P. Ramamurthy against him.
3. The petitioner resisted the application for temporary injunction alleging that domestic enquiry was conducted fairly and properly by the Enquiring Officer who submitted his report on June 13, 1994 and accepting the report the service of the respondent-plaintiff has been terminated with effect from June 25, 1994. The alleged dispute between the petitioner and the respondent falls under the provisions of the Industrial Disputes Act, 1947, (for short the Act) and, therefore, the Civil Court has no jurisdiction to try the suit The petitioner prayed for dismissal of the application I. A.No. 1643 of 1994.
4. It is a matter of record that the petitioner filed the suit for declaration and permanent injunction on June 20, 1994. The petitioner sought time to file counter and, in the meantime, terminated the service of the respondent with effect from June 25,1994.
5. The learned trial Court reached the conclusion that the question of jurisdiction i s a matter to be decided during trial. Since the suit has been filed before the issuance of the order of termination, prima facie, the suit is maintainable and the respondent -plaintiff shall be put to great disadvantage if the disciplinary enquiry is disposed of in this manner and without providing reasonable opportunity to the respondent-plaintiff to defend his case through a Lawyer. Consequently, the application for temporary injunction was allowed and the petitioner was restrained from proceeding with the enquiry, pending disposal of the suit.
6. The respondent (sic.petitioner) - defendant preferred, unsuccessfully, the impugned order in Civil Miscellaneous Appeal No.14 of 1994 before the Subordinate Judge at Kovvur. The appellate Court confirmed the finding of the trial Court that the petitioner is entitled to take the plea of non-maintainability of the suit during the trial but it was not justified in terminating the service of the respondent -plaintiff after taking time to file the counter for temporary injunction. It held that the order of termination is not legal, and therefore, it is liable to be set aside. Holding so, the appellate Court dismissed the appeal.
7. Feeling aggrieved by the impugned orders, he petitioner defendant has preferred this revision.
8. Relying on Rajasthan State Road Transport Corpn. v. Krishna Kant (1995-II-LLJ-728) (SC) it has been contended on behalf of the petitioner that the dispute between the petitioner and the respondent is a dispute within the meaning of Section 2-A of the Act and principle enunciated in Rajasthan State Road Transport Corpn. v. Krishna Kant (supra) was made applicable to all the pending matters also and therefore, whether the termination order was passed prior to the institution of the suit or subsequent to the institution of the suit is inconsequential because the fact remains that after the order of termination of the respondent plaintiff from the service of the petitioner the only remedy left to the respondent was to seek remedy before the Industrial Tribunal as the dispute had become an industrial dispute and the suit itself has become infructuous. And, under these circumstances, the Courts below have erred in holding that the question of jurisdiction would be decided during trial. Because the suit itself has become infructuous, there is no prima facie case in favour of the respondent- plaintiff and, therefore, the application for temporary injunction should have been rejected.
9. On the other hand, it has been urged on behalf of the respondent-plaintiff on the authority of Ch.V.V. Prabhakar Rao v. K.C.P. Ltd. 1991 (l) APLJ 465, that the question whether the Civil Court can exercise jurisdiction or not is a matter to be finally determined in the suit and the trial Court is entitled to grant temporary injunction even if the provisions of Order39, Rule 1 of the Code of Civil Procedure do not apply because the Court has got inherent powers to issue temporary injunction in suitable cases. Otherwise, the suit itself would become infructuous.
10. Relying on Indian F.F. Co-op. Ltd. Phulpur v. R.K. Misra (1987-I-LLJ-257) (All), it has been further contended on behalf of the respondent - plaintiff that the jurisdiction of the Civil Court is not ousted by Section 2-A of the Act by dismissing the service of the respondent during the pendency of the suit because there is nothing in Section 2-A of the Act which may oust the jurisdiction of the Civil Court in respect of a pending suit. Had the employee been dismissed prior to the institution of the suit, the dispute would have been deemed to be an industrial dispute within Section 2-A of the Act which would have barred the filing of the suit in the Civil Court.
11 In the case of Rajasthan State Road Transport Corpn. v. Krishna Kant (supra), it has been held as follows at pp 736-737: "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 Hindu) (1964-I-LLJ-351) (SC). 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 reasons 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 espoused 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 Section 10 or 12) does not apply to such dispute. Secondly, where a right or obligation is created by the Industrial Disputes Act, it is agreed by all sides that disputes relating to such right or obligation can only be adjudicated by the forums created by the Act".
12. The apex court, summing up the position of law, held that:
"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 contribute 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) xxxxxxxx
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) xxxxxxx
6) xxxxxxx
7) The policy of law emerging from 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 appeal 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".
13. In para 37 of its judgment, the apex court directed that the principles enunciated in this judgment shall apply to all pending matters except where decrees have been passed by the trial Court and the matters are pending in appeal or second appeal, as the case may be. All suits pending in the trial Court shall be governed by the principles enunciated herein - as also the suits and proceedings to be instituted hereinafter.
14. Applying the above principles, prima fa-cie, it appears that the suit filed by the respondent-plaintiff is not maintainable in law because the respondent has sought to enforce his right created under the Act and his service has been terminated, rightly or wrongly, with effect from June 25, 1994 and, therefore, the only remedy that appears to be available to him is to get an adjudication under the Act for the dispute is an industrial dispute.
15. Relying on Shiv Kumar Chedha v. Municipal Corporation of Delhi and Ors. , it has been held in Mandovi Marine Ltd v. P&E Corpn. 1994 MPLJ 910 that :
"It has been pointed out repeatedly that a party is not entitled to an order of injunction as a matter of right or course. Grant of injunction is within the discretion of the Court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the Court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The Court grants such relief according to the legal principle ex debito justitiae. Before any such order is passed the Court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience in his favour and refusal of injunction would cause irreparable injury to him."
16. In Ch. V.V. Prabhakar Rao v. K.C.P. Ltd. (supra), the services of the plaintiff was not terminated by the employer. A writ petition was filed by the employees challenging the validity of the standing orders of the factory which did not empower the employees to have legal assistance in disciplinary proceedings. Under these circumstances, it was observed in this case by this Court that the question of jurisdiction raised by the defendants whether the Civil Court has got jurisdiction to entertain the suit is a matter that should be finally determined in the suit. Whereas, in the case in hand, as noted above, the service of the respondent-plaintiff has been terminated with effect from June 25, 1994 and being an industrial dispute the Civil Court, prima facie has no jurisdiction to decide the validity or otherwise of the order of termination. While deciding the issue whether the plaintiff has got a prima facie case or not the trial Court should also consider whether it lacks or not inherent jurisdiction to try the suit.
17. For the foregoing reasons the case of Ch. V.V. Prabhakar Rao v. K.C.P. Ltd. (supra), is of no help to the respondent-plaintiff.
18. In the case of Indian F.F. Co-op., Ltd. Phulpur v. R.K.Misra (supra) no reason has been given by the learned single Judge of the Allahabad High Court for reaching the conclusion that the dismissal of the employee during the pendency of the suit will not affect the jurisdiction of the Court exercised at the time the suit as filed. Though it has been found in this case that Section 2-A of the Act provides a forum for the settlement of the dispute raised by an industrial workman, it has been further observed in this case that the appellant in this case had also raised the plea of maintainability of the suit before the trial Court for which the plaint may have to be amended and this issue may be considered by the trial Court after the plaint has been amended.
19. It can be safely presumed that the issue regarding maintainability of the suit would have been decided had the plaintiff not withdrawn the suit to seek his remedy elsewhere and in that event the temporary injunction order would have become automatically infructuous. Under these circumstances, it is always better to consider the question of maintainability of the suit on the allegation of lack of inherent jurisdiction in order of determine whether the plaintiff has got a prima facie case or not. With respect, I disagree with the view expressed by the learned Single Judge in the aforesaid case that the dismissal of the plaintiff during the pendency of the suit does not affect the jurisdiction of the Civil Court in trying a suit covered by Section 2-A of the Act, which provides a forum for the settlement of dispute raised by an industrial workman, particularly, when the Court should be satisfied that a strong prima facie case has been made out by the plaintiff including the question of maintainability of the suit as held in Shiv Kumar Chedha v. Municipal Corporation of Delhi and Ors. (supra).
20. The learned appellate Court has exceeded in its jurisdiction in setting aside the order of termination of the respondent- plaintiff on the ground that the petitioner-defendant was not justified in terminating the service of the respondent after taking time for filing counter. It appears that due to oversight of the relevant position of law referred to above, the learned appellate Court has fallen in error in recording the aforesaid finding.
21. For the foregoing reasons, disagreeing with the Courts below, I reach the conclusion that the respondent-plaintiff has failed to establish a prima facie case and, therefore, he is not entitled for temporary injunction.
22. In result, the revision petition is allowed. The impugned orders passed by the Courts below are set aside and the application I.A. No,1643 of 1994 in O.S. No.347 of 1994 is dismissed. However, in the circumstances of the case, I leave the parties to bear their own costs.