Delhi High Court
Shri Ravinder K. Saini vs American Express Bank Ltd. on 18 April, 2006
Author: Anil Kumar
Bench: Anil Kumar
JUDGMENT Anil Kumar, J.
1. This order shall dispose of the preliminary issue 'whether this Court has no jurisdiction to try the present suit in view of objections raised by the defendant No. 1 in its written statement?' in a suit for declaration and recovery of damages of Rs. 30.00 lakh filed by the plaintiff on account of his illegal and wrongful dismissal.
2. Brief facts to comprehend the disputes between the parties on which the preliminary issue was framed are that plaintiff was employed by defendant No. 1 as a special teller. After nine years of the service as teller during which, according to plaintiff, he was awarded appreciated remarks, granted increments and awards, he was issued charge-sheet on 28th July, 1990 on the ground that he fraudulently altered and re-routed and wrongfully input data to the credit of M/s Swift Travel International during the period 4th June, 1990 to 21st June, 1990 and fraudulently cheated and/or misappropriated an amount of Rs. 25,688.27 belonging to American Express Bank Limited travel related services. The plaintiff was charged with having committed the gross misconduct as contemplated under Clause 19.5 (d) and 19.5 (j) of the bipartite settlement of 1966. These clauses contemplated willful damage or attempt to cause damage to the property of the bank or any of its customers and doing any act prejudicial to the interest of the bank or gross negligence or negligence involving or likely to involve the bank in serious loss.
3. The plaintiff contended that he filed the replies to the charge-sheet on 3rd August, 1990 and 9th October, 1990 and the matter before the enquiry officer was adjourned from time to time. At times the matter was adjourned for more than one year. The plaintiff also contended that defense representative also turned out to be the General Secretary of the American Express Bank Employees' Association and he colluded with the officials of defendant No. 1.
4. The plaintiff specifically averred that on 4th July, 1993 he had fever and so the enquiry was adjourned, however, the later adjourning the enquiry and intimating the next date on 21st July, 1993 at 11.00 A.M was dispatched only on 17th July, 1993 and therefore was received after the time enquiry was fixed. He pleaded that even on 20th July, 1993, the plaintiff had gone to Indore with the permission of defendant No. 1 and the letter about the enquiry to be held on 21st July, 1993 at 11.00 am was delivered to him on 21st July, 1993 at 1.00 pm after the time fixed for enquiry, consequently he could not appear.
5. The plaintiff asserted that on 21st July, 1993 he could not appear as the intimation was received after the time the enquiry was fixed for and yet he was proceeded ex-parte on 21st July, 1993. The plaintiff pleaded that on 23rd July, 1993 and subsequently he requested the defendant No. 1 and enquiry officer to allow the plaintiff to cross-examine defendant witnesses but the request of the plaintiff was turned down and thereafter he was dismissed from service from 7th November, 1996. An appeal filed by the plaintiff before the appellate authority was also dismissed and communicated to the plaintiff vide letter dated 30th April, 1997 against which a representation dated 14th May, 1997 was made. The representation of the plaintiff was not replied entailing sending a legal notice dated 30th September, 1997 contending that the punishment of dismissal as awarded to the plaintiff was highly biased and malafide and prejudicial and also illegal.
6. The plaintiff contended that after the serving of charge-sheet on 28th July, 1990 he had lost his father on 6th March, 1993 and also lost his son on 8th march, 1993 causing sever mental shock and agony to him. It was contended that there was no cheating or misappropriation of the amount of Rs. 25,688.27 as the defendant No. 1 was himself responsible for it. Plaintiff pleaded that he had objected to giving one percent commission on the 75 % of the amount to the travel agents who used to mobilize business by directing the air passengers to buy foreign exchange from defendant No. 1. Plaintiff stated that travel agents mostly used to send their temporary staff/messangers along with air passengers and sometimes even air passengers on their own used to ask the teller to credit one percent commission in the name of travel agent and such commissions were given at the instance of the defendant No. 1. The paltry sum of Rs. 25,688.27 alleged public money alleged to be misappropriated was 1% commission given to travel agents in 309 transaction. As the commission given by defendant No. 1 was in violation of the guidelines laid down by the Reserve Bank of India, the action was taken against the plaintiff to justify their own illegal acts. The plaintiff contended that the allegation of misappropriation of Rs. 25,688.27 in 309 transactions rather reflects the connivance of the top officials of the defendant No. 1 and innocence of the plaintiff against whom no complaint for cheating or misappropriation was filed nor any FIR was registered. The plaintiff in the circumstances contended that his dismissal was illegal and unlawful and he filed the suit for declaration that his dismissal was illegal and he claimed Rs. 30.00 lakh as damages.
7. The defendants contested the suit contending inter alia that the suit is an abuse of process of law and has been filed with a view to harass the defendant No. 1. It was contended that plaintiff fall in the category of workmen as defined under Section 2(s) of the Industrial Disputes Act, 1947 and since the suit filed by the plaintiff is based on the punishment imposed on him after an elaborate disciplinary enquiry for gross misconduct committed by him in the course of the employment in defendant's bank the suit is not maintainable as an adequate remedy is available to the plaintiff under the Industrial Disputes Act itself. The defendant No. 1 raised the legal objection that the relief sought by the plaintiff in the suit in dispute falls within the ambit of the definition of industrial disputes as defined under Section 2(k) of the Industrial Disputes Act and the scheme of Industrial Disputes Act clearly excludes the jurisdiction of the Civil Court by implication in respect of remedies which are available under the Act and for which complete procedure and machinery is provided. The defendant contended that it is settled law that where an appropriate remedy is available, it is not open to the plaintiff to approach the Civil Court for getting the relief which he can get under the scheme of Industrial Disputes Act, 1947. Thus, it was claimed that the relief claimed by the plaintiff is available to him under the Industrial Disputes Act and the present suit is liable to be dismissed. The defendants relied on , Rajasthan State Road Transport Corporation and Ors v. Zakir Hussain to contend that the suit is not maintainable.
8. On the basis of the pleadings and documents of the parties, the issues were framed on 7th February, 2005 and the issue regarding jurisdiction was ordered to be treated as preliminary issue, Whether this Court has no jurisdiction to try the present suit in view of objections raised by the defendant No. 1 in its written statement.
9. I have heard the learned Counsels for the parties at length and have perused the pleadings and documents of the parties. The industrial disputes as defined under Section 2(k) means any dispute or difference between employers and employees, between employers and workmen and between workmen and workmen provided such dispute is connected with employment, non-employment, terms of employment or conditions of labour of any person. Where the dispute concerns the body of the workers as a whole or to a section thereof, it is an industrial dispute. Section 2(k) of the Industrial Disputes Act is as under:
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;
10. It is no more rest integra that a dispute between the employer and an individual workmen does not constitute an industrial dispute unless the cause of workmen is espoused by a body of workmen. The Supreme Court in Bombay Union of Journalists v. `The Hindu' had held:
8. The dispute, in the present case, being prima facie, an individual dispute, in order that it may become an industrial dispute it had to be established that it had been taken up by the Union of employees of The Hindu, Bombay or by an appreciable number of employees of The Hindu, Bombay. Counsel for the appellant contended that the dispute was supported by the Bombay Union of Journalists of which Salivateeswaran was a member and that, in any event, it was supported by Venkateswaran and Tiwari, who were the only other employees in this establishment. He also contended that in any event the dispute having been taken up by the Indian Federation of Working Journalists after it was referred to the Tribunal, it had become an industrial dispute.
Where the dispute concerns the body of workers as a whole or to a section thereof, it is an industrial dispute. Section 2-A was inserted in the Industrial Disputes Act, 1947 by the 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. Section 2-A which was inserted with effect from 1st December, 1965 is as under:
2A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute.-
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.
11. The Learned counsel for the defendants have relied on , Premier Automobile Ltd. v. Kamlekar Shantaram Wadke where the principles applicable to the jurisdiction of the civil Court were summed up in relation to an industrial dispute. The Apex Court had held:
23. To sum up, the principles applicable to the jurisdiction of the civil court in relation to an industrial dispute may be stated thus:
(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 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 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.
12. In a suit for recovery of damages for wrongful dismissal where there was no prayer for reinstatement, a division bench of Calcutta High Court in Austin Distributors (P) Ltd. v. Nil Kumar Das 1970 Lab I.C. 323 had held that the Civil Court's jurisdiction is not barred, inasmuch as the only ground upon which the dismissal was impugned was in violation of the contract of service governed by general law. In Syndicate Bank v. Vincent Robert Lobo 1971 Lab.I.C 1055 the Mysore High Court had also held to the same effect. Both these judgments were approved by the Apex Court in Premier Automobile (supra) holding as under:
We approve what has been said by a Bench of the Calcutta High Court in the case of Austin Distributors Pvt. Ltd. v. Nil Kumar Das that a suit for recovery of damages for wrongful dismissal, on the grounds which are clearly entertainable in civil court, would lie in that court even though a special remedy is provided in the Act in respect of that matter. This would be so on the footing that the dismissal was in violation of the contract of service recognized under the general law. More or less to the same effect is the view taken by a learned Single Judge of the Mysore High Court in the case of Syndicate Bank v. Vincent Robert Lobo. It is not necessary to refer to some unreported decisions of the Bombay High Court taking one view or the other.
13. The learned Counsel for the petitioner has relied on Rajasthan SRTC v. Krishna Kant where it was reiterated that a case for awarding compensation though the civil court can not decree reinstatement was maintainable. The Supreme Court had approved the ratio in the case of Sitarm Kashiram Konda v. Pigment Cakes and Chemicals Mfg. . It was held:
We may also refer to a decision of this Court rendered by Untwalia, J., on behalf of a Bench comprising himself and A.P. Sen, J., in Sitaram Kashiram Konda v. Pigment Cakes and Chemicals Mfg. Co. That was a case arising from a suit instituted by the workman for a declaration that termination of his service is illegal and for reinstatement. In the alternative, he claimed compensation for wrongful termination. The jurisdiction of the civil court was sustained by this Court on the ground that he has made out a case for awarding compensation though the civil court could not decree reinstatement. Though the report does not indicate the basis put forward by the workman-plaintiff therein, the court found on an examination of all the facts and circumstances of the case that it is not quite correct to say that the suit filed by the appellant is not maintainable at all in a civil court?. Obviously it was a case where the dispute related to enforcement of rights flowing from general law of contract and not from certified Standing Orders. This decision cannot also be read as laying down a different proposition from Premier Automobiles.
14. In Rajasthan SRTC v. Krishna Kant (supra) the Supreme Court had summarized the principles about the jurisdiction of the Civil Court which are as follows:
(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 constitute 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) Similarly, where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactments like Industrial Employment (Standing Orders) Act, 1946? which can be called 'sister enactments' to Industrial Disputes Act? and which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the Industrial Disputes Act provided they constitute industrial disputes within the meaning of Section 2(k) and Section 2-A of Industrial Disputes Act or where such enactment says that such dispute shall be either treated as an industrial dispute or says that it shall be adjudicated by any of the forums created by the Industrial Disputes Act. Otherwise, recourse to civil court is open.
(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) Consistent with the policy of law aforesaid, we commend to Parliament and the State Legislatures to make a provision enabling a workman to approach the Labour Court/Industrial Tribunal directly i.e., without the requirement of a reference by the Government in case of industrial disputes covered by Section 2-A of the Industrial Disputes Act. This would go a long way in removing the misgivings with respect to the effectiveness of the remedies provided by the Industrial Disputes Act.
(6) The certified Standing Orders framed under and in accordance with the Industrial Employment (Standing Orders) Act, 1946 are statutorily imposed conditions of service and are binding both upon the employers and employees, though they do not amount to 'statutory provisions'. Any violation of these Standing Orders entitles an employee to appropriate relief either before the forums created by the Industrial Disputes Act or the civil court where recourse to civil court is open according to the principles indicated herein.
(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 appeals 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.
15. The plaintiff is seeking declaration that his termination is illegal and wrong because he was proceeded ex parte and despite requests to allow him to cross-examine the witnesses of defendant No. 1, he was not allowed to cross examine them and an ex parte decision has been taken. His grievance is also that the day he was proceeded ex parte, he did not get the notice about the hearing prior to the date and time of hearing, as a notice was received by him at 1 P.M. whereas the hearing was at 11 A.M. This happened, according to him, because the notice intimating the date of hearing on 21st July, 1993 was posted on 17 July 1993 though the previous hearing was on 4th July 1993. The plaintiff has also claimed that the paltry sum of Rs. 25,688.27 in 309 transactions alleged to be misappropriated by the plaintiff, was 1% of the commission given to the travel agents for referring the customers to buy foreign exchange from the defendant No. 1. The commission granted was contrary to the guidelines of reserve bank of India and therefore, with a view to justify their own wrongs, the action of dismissal was taken against the plaintiff. On these grounds the plaintiff has claimed that his termination was illegal and therefore he has claimed damages for wrongful termination arising from general law of contract. It has been held that where the relief claimed is on the basis of general law of contract, a suit filed cannot be said to be not maintainable, even though such a dispute may also constitute 'industrial dispute' within the meaning of Section 2(k) or Section 2A of the Industrial Disputes act, 1947. From the perusal of the averments made in the plaint and the relief claimed it is apparent that the plaint does not involve recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes act, 1947.
16. In the circumstances, the inevitable inference is that the suit for recovery of damages by the plaintiff for his wrongful termination shall be maintainable. Consequently the issue that the Civil court does not have jurisdiction is decided against the defendants and in favor of plaintiff holding that the Civil court has jurisdiction in the facts and circumstances of the case and the suit is maintainable. Preliminary issue is decided accordingly.