Bombay High Court
Bank Of Baroda vs Triveniprasad Jamnaprasad Mishra on 13 January, 1987
Equivalent citations: 1987(3)BOMCR164, (1988)IILLJ163BOM
ORDER
1. The order passed by the Joint Civil Judge, Junior Division, Yeotmal in Regular Civil Suit No. 252/81 on 18th June 1983 rejecting the applications Exhibits 24 and 25 filed by the defendant-petitioner Bank of Baroda, has been challenged in this revision.
2. The plaintiff-opponent who was an employee of the Bank of Baroda at Yeotmal was informed by letter dated 29th July 1981 that he was to retire from the Bank Service on 31st December 1982. The plaintiff informed the Bank that his date of birth was 12th May 1931 and not 12th May 1921 and according to the Regulations of the Bank, he was normally to retire after attaining the age of 60 years. He also pointed out that his date of birth (12th May 1921) mentioned in the registers of the Bank was not correct. His representation was rejected by the Bank. The plaintiff, therefore, instituted as suit for declaration that his date of birth is 12th May 1931 and as such the letter issued by the Bank on 29th July 1981 was bad in law. A consequential relief restraining the Bank from acting upon this letter has also been claimed. A further injunction restraining the defendant from superannuating the plaintiff before the age of 60 years is also claimed.
3. The defendant appeared in pursuance of the summons and filed a written statement. It also filed two applications (Exhibits 24 and 25) alleging that the dispute raised by the plaintiff is mainly an industrial dispute within the meaning of Industrial Disputes Act and as such the Civil Court had no jurisdiction to entertain and decide the suit, that jurisdiction being completely barred by necessary implication under S. 9 of the Civil P.C. Another plea was also raised that the Civil Court was incompetent to grant the injunction under S. 38 of the Specific Relief Act. These two applications gave rise to the order passed by the learned Judge who, on hearing both the parties, held that the Civil Court had a necessary jurisdiction and the suit should proceed further according to law. It is this order which has been the subject matter of this revision.
4. Both the Advocates advanced their arguments in details in support of their respective cases. Before I come to the actual controversy, it will be proper at this stage to point out the factual position which has remained uncontroverted. Undisputedly, the defendant Bank is recognised as an 'industry' under the Industrial Disputes Act. The plaintiff admittedly was in service of the Bank. At one stage, it was disputed that the dispute raised in this case cannot be called an 'industrial dispute' within the meaning of S. 2(k) of the Industrial Disputes Act, and therefore, the Industrial Court has no jurisdiction, with the result that the jurisdiction still vests in the Civil Court. At this stage of revision, it is not much disputed that the dispute is not an 'industrial dispute' within the meaning of S. 2(k) of the Industrial Disputes Act. However, the learned advocate for the petitioner vehemently urged before me that though the dispute may not be an industrial dispute within the meaning of S. 2(k) of the Industrial Disputes Act, still by fiction it can be an industrial dispute within the meaning of S. 2A of the said Act. In the present case, the plaintiff has been informed about his superannuation which falls due at the end of May 1981. The plaintiff did canvass that his date of birth in reality is 12th May 1931 and as such in pursuance of the Standing Orders, his age of superannuation being 60 years, the retirement will be due only in 1991 and not in 1981. Thus, according to him, the retirement was premature, in as much as the Standing Orders did not permit the superannuation before the expiry of 60 years of age. Thus, what he has alleged may not be a discharge, dismissal or retrenchment. But it is definitely a termination of his service and it would fall within the meaning of the term "otherwise terminates." Mr. Dharmadhikari the learned advocate for the respondent initially canvassed before me that the present case does not fall within the ambit of S. 2A, but ultimately conceded that there is a factual termination and as such it can be legitimately called as termination within the meaning of the term "otherwise terminates."
5. The parties to the dispute thus proceeded on the admitted position that the dispute sought to be made out in the present case is an industrial dispute within the meaning atleast of S. 2A and there is no retreating back from that position.
6. Before we proceed further, it will be necessary to examine what the exact reliefs claimed by the plaintiff in this litigation are. Though admittedly, the reliefs are couched in the most innocuous language, still we have to find out the substance and not the form of the relief claimed. A letter addressed by the petitioner to the plaintiff on 29th July 1981 has given rise to the whole controversy. The letter reads as follows :
"Under instructions from our Regional Office, we have to advise you that you are due for retirement from Bank's service on 31st Dec. 1981."
The main objection of the plaintiff in this letter is that, his date of birth is 12th May 1931 and as such under the Standing Orders which have the force of the Statue, he cannot be retired before of the completion of age of 60 years, and therefore, this suit has been instituted. Thus, what in substance has been claimed is not merely a declaration that his date of birth is 12th May 1931. If that were the sole declaration in this suit, the suit would have been non-maintainable because this declaration would not fall within the four corners of S. 32 of the Specific Relief Act, in as much as it neither concerns about the legal status, nor about the right to property. Thus, what the plaintiff in law wants to contend is that under the tripartite agreement, which has been accepted by the Bank and which has culminated in the Regulations, the superannuation age has been fixed at 60 years and such the present letter is bad in law. Thus, though in form an innocuous declaration that the letter is bad in law is claimed, still in effect the plaintiff is agitating that the action is definitely bad as it is in contravention of the Standing Orders. Thus, the real declaration that is claimed is not only regarding the declaration of age, but it is regarding the contravention of the statutory regulations. This point has to borne in mind while deciding the real controversy.
7. The question whether a specific industrial dispute bars the jurisdiction of the Civil Court in toto has been a subject matter of controversy. The Supreme Court in the Premier Automobiles v. K. S. Wadke (1975-II-LLJ-445) had an occasion to examine this question in details. The case law that was developed from time to time has all been reviewed in this decision and the Supreme Court has laid down four principles. The ouster or otherwise of the jurisdiction of the Civil Court would depend upon the consideration and examination of either of these principles. The principles laid down by the Supreme Court are (p. 459) :
"(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 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 or an 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 VA, then the remedy for its enforcement is either S. 33C or the raising of an industrial dispute, as the case may be."
It was an uncontroverted position that the present case does it fall within the first category, nor does it fall within the 4th category. The learned advocate for the petitioner, however, insisted that this case would fall within the third category whereas it was the case of the respondent that the case would fall under the category No. 2, so that the jurisdiction of Civil Court would not specifically be barred if the suitor chose this forum in preference to the forum created under the Industrial Disputes Act. It is this ticklish controversy which requires a close examination at this stage.
8. Mr. Dharmadhikari, the learned advocate for the respondent strenuously urged before me that what the plaintiff was contending in this case is that his date of birth is 12th May 1931 and not 12th may 1921. It was his contention that on the wrong assumption that his date of birth is 12th May 1921, the defendant has issued a letter retiring him from December 1981. Thus, according to him, the dispute is very much limited. What this Court is called upon to decide in this case is as to what is the date of birth of the plaintiff i.e. whether 12th May 1921 or 12th May 1931. It was urged by Mr. Dharmadhikari that this dispute squarely falls under the common law, in as much as the Specific Relief Act permits such dispute to be raised before the Court and the Courts are empowered to issue the declarations. It was his further argument that this dispute necessarily falls within the common Law and not under the Special Statute, and such the whole controversy would fall within the principle No. 2 reproduced above. This argument makes me revert back to the earlier part of the judgment where it has been observed that a declaration simpliciter that the date of birth is 12th May 1931 would not possibly lie because S. 32 of the Specific Relief Act enables the Court to issue declarations only regarding the legal status and right to the property. It has to be seen at this stage that a right to remain in service up to the completion of 60 years of age is not a right under the Common Law. This right is specifically conferred by the Regulations which have been accepted as a result of the tripartite agreement and this regulation has become statutory in so far as the Bank employees are concerned. Thus the declaration which is being claimed in substance in this suit, is not merely a declaration that the date of birth of the plaintiff is 12th May 1931. But the declaration which is claimed in substance is to the effect that he was born on 12th May 1931 and because of the Regulations, he cannot be superannuated before the expiry of 60 years. It is the action of superannuating the plaintiff before the completion of 60 years that has been challenged and it is this act of the Bank which is challenged before the Court because it is in contravention of the statutory obligations. There is, therefore, hardly any force in the arguments of Mr. Dharmadhikari that the right which the plaintiff is claiming in this suit is a right under common law. What has been claimed is the right which the plaintiff has agreed under a Special Statute or under a Regulation which has the force of the Statute. That right has been given to the plaintiff not by the common law, but by the Special Law and as such this case would not be covered under principle No. 2 reproduced above.
9. Mr. Dharmadhikari had another argument to advance before me and that argument is based on the view taken by the single Judge of the Calcutta High Court in Titagar Jute Factory Co. v. Sriram Tewari (1979-I-LLJ-495). It may be pointed out that the facts of this reported ruling are exactly similar to the facts in the present case. In that case also the employee was ordered to be superannuated with effect from a particular date. The employee raised a contention that his real date of birth is something different than the date of birth in the registers of the Bank, and therefore, his superannuation directed by his employer is bad in law. The Calcutta High Court heavily relied on the principles laid down in (1975-II-LLJ-445) (supra). Four principles enumerated by the Supreme Court were reproduced in the same decision and the Calcutta High Court held that the case would fall within Principle No. 2, in as much as the right to claim declaration was available under Common Law and not under the Special Statute. Mr. Dharmadhikari wanted me to take the same view in the present case also. With respect, there are some difficulties which do not permit me to accept that view in toto.
10. One of the arguments of Mr. Dharmadhikari was that though the dispute raised in this case is an industrial dispute, there is nothing in the Industrial Disputes Act which either expressly or impliedly bars the jurisdiction of the Civil Court. What he pointed out before me was that, there must be something in the Special Statute itself to bar the jurisdiction of the ordinary Civil Court atleast by a necessary implication. This argument is against the well recognised dictum accepted so far by all the Courts in this country that a Special Statute declaring the rights and prescribing the remedies for the enforcement of right necessarily bars the original jurisdiction of the Civil Courts. It is only on this background that the Supreme Court laid down four principles which have been reproduced in the earlier part of the judgment. It is no use saying at this stage that the Industrial Disputes Act does not bar the jurisdiction of the Civil Court. What we have to examine in this case is whether a particular right conferred on a party by a Special Statute is accompanied with an effective remedy prescribed by the Special Statute. If effective remedy is prescribed, then there is a bar. If there is absolutely no remedy prescribed, then there may not be ouster of jurisdiction of the Civil Court. It is only on this background that the four principles have been enunciated.
11. Mr. Dharmadhikari however urged before me that though this dispute has been categorised by fiction as an industrial dispute, still no effective remedy has been specified in the Industrial Disputes Act and as such the jurisdiction of the Civil Court would not necessarily be barred. Before we take up the scrutiny of this argument, it will be necessary to see the Scheme of the Industrial Disputes Act. The very Preamble of the Act shows that it was expedient to make provision for the investigation and settlement of industrial disputes, and for certain purposes hereinafter appearing and the Industrial Disputes Act has been enacted for those purposes. S. 2 deals with the definitions and the relevant section for our purpose would be S. 2(k) which defines "Industrial Disputes". It may be pointed out at this stage that the very purpose of the Industrial Disputes Act was to give effect to the "collective bargaining" which has been one of the musts for securing industrial truce in the present time. Collective bargaining and the enjoyment of the fruits flowing therefrom does not recognise the individual, and that is why the remedies have been made available not individually, but collectively for the class as a whole. The Legislature was, however, equally conscious of the fact that apart from collective dispute, there can be some individual disputes which are to be brought within the ambit of the Statute. From this view point S. 2A was brought on the Statute book which recognised the individual disputes flowing from discharge dismissal, retrenchment or otherwise termination within the scope of this Act. Thus, the disputes recognised by this Statute are the collective disputes for which a collective remedy is provided to the class as a whole. Side by side, dismissal, discharge, retrenchment or otherwise termination of service which may not affect the class as a whole, but which may affect the individual forming part of that class has also been recognised as an industrial dispute.
12. The Industrial Disputes Act then went on to provide for the constitution of different Tribunals for discharging the functions under the Act. Ss. 7, 7A and 7B provide for the constitution of different Tribunals with which we are not much concerned at this stage. S. 10 then provides for a machinery for implementation of the statutory policy underlying this Statute. One point that has to be borne in mind at this stage is that the appropriate Government is to be approached generally by a class, though there is nothing in the Statute to show that the approach to the forum by an individual is barred. In fact sub-sec. (2) of S. 10 would show that even an individual can approach the government and convince them that there is an industrial dispute which should be referred to the Tribunal. The Government has powers to refer such disputes to the Tribunal. Then there is a machinery provided under S. 33 of the Act with which we are not much concerned. My endeavor in pointing all this is to show that the Industrial Disputes Act does not only create the rights, but it also provides the remedy and from that point of view the machinery is self-contained.
13. What Mr. Dharmadhikari strenuously urged before me is that normally under the Industrial Disputes Act, an individual cannot directly approach the Industrial or Labour Court directly. He has first to approach the appropriate government, convince the same of his cause and if the Government is convinced of the genuineness of his cause, then only the Government can refer the dispute for adjudication either to the Labour Court or to the Industrial Tribunal or to the Board or to the National Tribunal. Thus, according to Mr. Dharmadhikari, there is nothing in the Act which enables an individual to approach the forum for establishment and adjudication of his individual right. It was his further argument that this being the case, it cannot be said that an effective remedy was provided under that Act. Basing his argument on this factual position he further urged that when no effective remedy is available to a litigant to approach the forum created by a Special Statute, the jurisdiction of the Civil Court would not necessarily be barred. It is this point which needs examination at this stage and which according to me, with respects, was not considered in the Calcutta authority cited supra.
14. Similar point was raised before the Supreme Court in (1975-II-LLJ-445) (supra). The learned advocate for the respondent urged two points before the Supreme Court, viz.
(i) That the remedy provided under the Act is no remedy in the eye of law. It is a misnomer. Reference to the Labour Court or the Industrial Tribunal for adjudication of the dispute would depend upon the exercise of the power by the Government under S. 10(1). It did not confer any opportunity on the suitor.
(ii) Even if the Civil Court had no Jurisdiction to entertain the suit for the enforcement of a right created under the Act, as in England, Courts in India also could make an order or decree for injunction to prevent the threatened injury on breach of the right.
Thus the arguments advanced before the Supreme Court were that the remedy prescribed by the statute was not a very effective remedy and a suitor who was threatened with the injury could not approach the court directly except through the intervention of the Government. It is from this point of view that this remedy was called as a misnomer. The Supreme Court, however, did not accept this argument. Though the Supreme Court observed that there was a force in the argument that the remedy prescribed by the statute was not a very efficacious remedy, it held as follows ar pp. 453-454 :
"But it does not follow from all this that the remedy provided under the Act is a misnomer. Reference of industrial disputes for adjudication in exercise of the power of the Government under S. 10(1) is so common that it is difficult to call the remedy a misnomer or insufficient or inadequate for the purpose of enforcement of the right or liability created under the Act. The remedy suffers from some handicap but is well compensated on the making of the reference by the wide powers of the Labour Court or the Tribunal. The handicap leads only to this conclusion that for adjudication of an industrial dispute in connection with a right or obligation under the general or common law and not created under the Act, the remedy is not exclusive. It is alternative. But surely for the enforcement of a right or an obligation under the Act the remedy provided uno flatu in it is the exclusive remedy. The Legislature in its wisdom did not think it fit and proper to provide a very easy and smooth remedy for enforcement of the rights and obligations created under the Act. Persons wishing the enjoyment of such rights and wanting its enforcement must rest content to secure the remedy provided by the Act. The possibility that the Government may not ultimately refer an industrial dispute under S. 10 on the ground of expediency is not a relevant consideration in this regard."
Thus the machinery howsoever defective it may be is after all a machinery created by the Statute and the plaintiff cannot legitimately ask the Civil Court to entertain his dispute because the remedy provided by the Special Statute is not so effective. Having come to the conclusion that the right which is being pursued before the Civil Court is not a right under the common law, a Common Law Court cannot be called upon to enforce this right through machinery particularly when a special machinery has already been created (however defective it may be) for enforcement of those rights before the specialised forum.
15. The Calcutta High Court (case cited supra) (1979-I-LLJ-495) exclusively relied on para 9. It, however, did not refer to para 14 where the Supreme Court has in terms held that the Special Statute does not only create rights but also creates a remedy for enforcement of those rights. This being the position, the case appears to be fully covered under Principle No. 3 reproduced above, in as much as the right attempted to be pursued before the Civil Court is a right not under the Common Law, but under the Special Statute and a remedy has been prescribed by that Statute though it may not be very convenient for the plaintiff. The position remains that the remedy has been prescribed and that has to be pursued.
16. The sum and substance of all that has been stated above is that the right which the plaintiff is pressing before the Court is not a right under the Common Law. What is not claimed by the plaintiff in the suit is not merely a declaration of his age or the date of his birth. What he has sought before this Court in Substance is that under the Statue or the Regulations having the force of the Statue, he has a right to continue till the age of 60 years and the letter served on him by the defendant calling upon him to retire on 31st December 1981 is not only wrong, but illegal. His right to continue in service till the expiry of 60 years of age is a right not under the common law, but a right under the Special Law. The obligation on the defendant not to oust its employee before the latter completes 60 years of age is not an obligation under the common law, but it is an obligation under the Special Statute or a Regulation having the force of a Statute. It is this right which the plaintiff is enforcing in the Civil Court contending that this right is a right under the Common Law. This right not being under the Common Law, but being an exclusive right flowing from the Special Statute or Regulation, cannot be covered within the second category reproduced in the earlier part of this judgment.
17. What remains is crystal clear. The plaintiff claims the enforcement of his right under the Statute, or the Regulations having the force of Statue. A machinery has been created for the enforcement of those rights. May be that plaintiff cannot rush either to the Labour Court or the Industrial Court to enforce his remedy. That way the remedy may not be a quick or the convenient remedy. But it cannot be said that there is no remedy under the Statute.
18. I may point out at this stage that there are schedules attached to Industrial Disputes Act. Second schedule enumerates the matters which are within the jurisdiction of the Labour Courts constituted under S. 7 of Industrial Disputes Act. The very first item of this schedule covers "the propriety or legality of an order passed by the employer under the Standing Orders". Undisputedly, the employer superannuated the plaintiff under the Standing Orders. The employer feels that the date of birth of the plaintiff is 12th May 1921 and hence he has attained the age of 60 years and that is why he has superannuated him. The employer has been acting under the Standing Orders. Even the plaintiff wants this letter to be declared as bad in law and this claim is based not on his common law rights but on a right conferred to him by the Standing Orders which enabled him to serve up to the superannuation age of 60 years. Thus, virtually the relief claimed by the plaintiff is regarding the propriety or legality of an order passed by the employer under the Standing Orders and as such it would be within the exclusive jurisdiction of the Labour Court constituted under S. 7 of Industrial Disputes Act.
19. Looking from this point of view, I do not think that the Civil Court can legitimately have any jurisdiction to entertain and decide this controversy, in as much as the relief claimed before the Civil Court is regarding the propriety of the action taken by the employer under the Standing Orders. The right is not one conferred under the common law. It is under the Special Statute. A remedy has been prescribed by the Statute. The remedy may be inconvenient, it may not be a quick remedy. But it remains that the remedy has been provided. It is not for the Civil Court to adjudicate whether the remedy is convenient or not. The Civil Court need not rush as a saviour of the parties who do not want to take the remedies available under the Special Statutes.
20. The view taken by the learned Judge thus appears to be palpably wrong, in as much as he found that the remedy created by the Statute was not a foolproof remedy which can be availed of by a poor litigant. The trial Court wants to rush in as a saviour which is not permitted by the Statute. It is for the Legislature to consider the sufficiency, expediency, convenience or otherwise of the remedy. The Civil Court cannot go into that question and assume the role which it cannot. The assumption of the jurisdiction by the Civil Court was, therefore, wrong. In fact it amounts to usurpation which cannot be permitted.
21. Another point which was raised before the trial Court was that an injunction could not be granted in view of S. 38 of the Specific Relief Act. In my view, it was not at all necessary to decide this point at this stage. The Court was called upon to decide the point of jurisdiction. It had to examine its powers and find out whether it could entertain the dispute or not. Ability to grant a relief is altogether different from the power to entertain and adjudicate the matter. A Court may have right to entertain and adjudicate the matter, but it may have no right to grant a specific relief. But disability to grant a relief does not affect the jurisdiction of the Court. What we are concerned at this stage is the initial jurisdiction of the Civil Court to entertain and decide the dispute. In my opinion, the Civil Court has absolutely no jurisdiction to decide the dispute, which is an "industrial dispute" atleast by fiction within the meaning of S. 2A of Industrial Disputes Act. The order passed by the trial Court is therefore wrong and it deserves to be set aside with the result that the revision succeeds. Rule is made absolute. In the circumstances of the case, there shall be no orders as to costs.