Bangalore District Court
Ms.B.S.Saraswathy vs Bgse Properties & Securities on 12 January, 2018
THE COURT OF THE XXXVIII ADDITIONAL CITY CIVIL
JUDGE AT BENGALURU CITY
Dated this the 12th Day of January 2018
Present
Sri Devanand Puttappa Nayak B.A., LL.B.,(Spl.)
XXXVIII Additional City Civil & Sessions Judge,Bangalore City.
Original Suit No.5736/2015
PLAINTIFF : Ms.B.S.Saraswathy
d/o late B.Srinivasa Rao
aged about 58 years
(Chief Manager - Listing of the
Erstwhile Bangalore Stock Exchange
Ltd., and now has changed its name
to BgSE Properties & Securities Ltd.,
Presently residing at
No.40/1, 3rd Main Road,
Chamarajpet, Bangalore - 560 018.
(Party in person)
v/s.
DEFENDANTS: BgSE Properties & Securities
(Formerly known as Bangalore Stock
Exchange Ltd.,) having its registered
Office at Stock Exchange Towers
No.51, 1st Cross, J.C.Road
Bangalore - 560 027
Represented by Shri.Manjit Singh
Executive Director
(by Sri.B.I., Adv.)
2 O.S.5736/2015
ORDERS ON MAINTAINABILITY OF THE SUIT
This suit is filed by the plaintiff against the defendants
for the relief of declaration, damages and also for
compensation. It is admitted fact that the plaintiff was working
in the rank of Chief Manager in the Company of the 1st
defendant. The 1st defendant was filing necessary statutory
returns with the Registrar of Companies in Karnataka. The 1st
defendant company was paying salary to its employees in the
form of basic pay, HRA, Conveyance and Medical allowance,
LTD, bonus to the employees and granting a nominal annual
increment to its employees. But here on account of unforeseen
developments beyond the control of the company the
governing board of the 1st defendant approved and notified a
voluntary retirement scheme which was kept open from 18-10-
2013 to 08-11-2013.
2. Then on 08-12-2014 the 1st defendant terminated the
plaintiff from services with its immediate effect and relieved
the plaintiff from service of the Company at close office hours
on 28-11-2013. Further, letter was also issued to the plaintiff
by the governing body an advice to contact the Assistant
Manager (Finance and Assets) for final settlement of the fund
to be refunded to the plaintiff. So, here even though two letters
have been issued to the plaintiff dated 08-12-2014 and 26-12-
2014. The plaintiff not received the said letters towards
collecting the terminal benefits i.e., payment of gratuity and
3 O.S.5736/2015
other benefits. Therefore, the defendant No.1 deposited the
terminal benefit funds payable to the plaintiff before the
Assistant Commissioner, Division - 17, Karmika Bhavana,
Diary circle, Bangalore, who worked in the company of
defendants till 28-11-2013. But, here the plaintiff aggrieved on
the services terminated by the 1st defendant filed this suit
against the defendants. The grievance of the plaintiff that
since she has been kept out of service from 28-11-2013 for a
period of more than 3 years the defendant has not paid
terminal benefits to her, therefore she is entitled to the
statutory payment such as Gratuity, Pension, PF and etc.
3. Here, in the pleadings of the plaint, the plaintiff made
some allegation against one Sri.Manjit Singh, Executive
Director of the 1st defendant who pressurized the plaintiff to
accept the VRS. So, therefore due to the illegal act of
Sri.Manjit Singh as per the contention of the plaintiff, there is
great financial loss and hardship and difficulties caused to the
plaintiff. So, therefore, the cause of action for filing of this suit
as mentioned at para 71 of the plaint arose on the date of
termination dated 28-11-2013 by the arbitrary,
discriminatory, illegal and wrongful action of the 1st defendant
company that holding legitimate liability for payment of the
amount that is due and liable to be paid by the defendant.
4. So, here such being the contention took in the allegations
made in all paras of the plaint is itself goes to show in the
4 O.S.5736/2015
mind of the court whether this court has got the jurisdiction
for conducting the trial of this suit. Therefore, the court after
perusal of the pleadings pleaded by the plaintiff has come for
the opinion that whether the suit filed by the suit is
maintainable under Section 9 of C.P.C. So, here on 04-09-
2017 the plaintiff herself filed memo stating that no objection
certificate issued by her counsel previously conducting this
case. Then the plaintiff in person filed an application under
Order III Rule 1 r/w 151 of C.P.C., seeking permission from
the court to conduct this case herself in person that was
allowed and permitted the plaintiff to conduct this case in
person. Then, case adjourned on the maintainability of the
suit to be addressed by the plaintiff under Section 9 of C.P.C.,
dated 04-09-2017. Here, the plaintiff herself in person argued
on merits regarding maintainability of the suit under Section 9
of C.P.C., and the counsel for the defendant No.1 also argued
on the maintainability of the suit under Section 9 of C.P.C.
5. So, here after heard the arguments by both the sides on
maintainability of the suit under Section 9 of C.P.C., the
following points arise for consideration:
"Whether the suit filed by the plaintiff is barred and
not maintainable under Section 9 of C.P.C.?"
6. My answer to the above point is in the affirmative for the
following
5 O.S.5736/2015
REASONS
7. As per Section 9 of C.P.C. which envisages - The courts
shall (subject to the provisions herein contained) have
jurisdiction to try all suits of civil nature excepting suits of
which their cognizance is either expressly or impliedly barred.
So, here the Civil court on consideration of material placed by
the plaintiff and also on the facts of the plaintiff has come to
the conclusion that there is an exclusion of the jurisdiction
which goes to the root of the matter in respect of the
maintainability of the suit filed by the plaintiff. So, here the
court has look into law existing on the date of the suit would
determined the jurisdiction of the court which is bound to take
notes of the change in the law and is bound to administral
law.
8. Here, the plaintiff has been terminated by the defendant
as per letter issued on 28-11-2013. Here looking to the letter
dated 28-11-2013 available on the list of documents produced
by the defendant No.1 goes to show that listing work and
revenue from listing at the stock exchange of the 1st defendant
adversely impacted when SEBI (Security Exchange Board of
India) abolished concept of mandatory listing and reasonal
companies at RSEs then the income of the 1st defendant
substantially decreased due to the lower turn over business.
So, therefore the 1st defendant introduced the Voluntary
6 O.S.5736/2015
Retirement Scheme which was kept open from 18-10-2013 to
08-11-2013. Then letter issued to the first time to the plaintiff
on 08-12-2014 stating that the services of the plaintiff has
been terminated by the 1st defendant with a immediate effect
as per the letter dated 28-11-2013 and the plaintiff was
relieved from the company on 28-11-2013. Then, the 1st
defendant through the Assistant Manager advised to contact
the office of the 1st defendant for final settlement of the
terminal benefits to be calculated belongs to the plaintiff. But
the plaintiff has neither contacted the Assistant Manager by
name Thomas nor applied for terminal benefits. Therefore,
another letter got issued by the office by the 1st defendant on
26-12-2014 advice the plaintiff to collect all the terminal
benefits and also the gratuity amount of Rs.5,56,336/- from
LIC Pension and Gratuity Department. So, here both the
letters issued by the defendant company has not been received
by the plaintiff. Hence, the defendant No.1 company deposited
the amount of Rs.5,53,434/- by way of cheque bearing
No.205479 dated 27-03-2015. So, here the 1st defendant
company is consisting of the shareholders and majority of
shareholders are the Board of Directors.
9. In para 66 of the plaint it is pleaded by the plaintiff that
she being the responsible position fully aware of the closure of
the 1st defendant company, in the light of the 2nd defendant
circular of exit policy and plaintiff was willing to be honorably
7 O.S.5736/2015
relieved on her own after accepting the better lustful and
amicable compensation package by the 1st defendant company
inclusion of revision of salary, merger of DA with basic pay,
implementation of DA as per Memorandum of Settlement
signed and VRS-II Scheme and completion of her tenure as
Key Managerial Personnel during July 2014 in which the said
Sri.Manjit Singh, Executive Director of the 1st defendant
company himself signed the letter. Therefore, the submission
of the plaintiff that her termination dated 28-11-2013 prior to
expiry of 2 years of service is highly wrongful on the part of the
1st defendant company.
10. So, here first of all Civil Court has no jurisdiction to
direct reinstatement. So, therefore from the facts of the
pleadings of the plaint in all paras and relief claimed by the
plaintiff which is pertaining to the Scheme of the Industrial
Dispute Act clearly excludes the jurisdiction of Civil Court by
implication in respect of remedies which are available under
the said Act and for which complete machinery and procedure
have been provided (AIR 1990 SC 255). But here the plaintiff
herself vehemently argued and relied on reported decisions:
1. AIR 1998 SC page 384, here in this citation Labour
Court has found that the petitioner Vimal Kuman
Jain is not a workman and the Hon'ble Supreme
Court has come for the opinion that the Labour
8 O.S.5736/2015
Court is right in holding that the petitioner is not a
workman and SLP was dismissed.
2. AIR 1984 SC page 914, in the case between Ved
Prakash Gupta - appellant v/s. Delton Cable India
(P) Ltd., respondent, where the Hon'ble Supreme
Court has held that a person employed in
Managerial or Administrative capacity excluded as
workmen under Section 2 (s) (iii) of Industrial
Dispute Act 1947.
3. 2014 (176) PLR 578 (2014) (Legal Eagle 2559) by
the Hon'ble Court of Punjab and Haryana High
court wherein it is held that when the power of Civil
Court is invoked on principle of violation of natural
justice, then the Civil Court always have the
jurisdiction, if there is such violation. Further in
this case it is also held that the workman had
sought for a relief that the order of termination was
illegal which the Civil Court had a right to
adjudicate upon.
4. AIR 1975 SC 2338 in the case between The
Premier Automobiles Ltd. - appellant v/s. Kamlekar
Shantaram Wadke of Bombay and others -
respondent, wherein the Hon'ble Supreme Court
has under Section 9 of Civil Procedure Code 1908
9 O.S.5736/2015
held that if the dispute is not a Industrial Dispute
within the meaning of Section 2(k) or within the
meaning of 2(a) of the Act, it is obvious that there is
no provision for adjudication of such disputes under
the Act. But where the Industrial Dispute is for the
purpose of enforcing any right, obligation or liability
under the general law or the common law and not a
right, obligation or liability created under the Act,
then alternative forums are there giving an election
to the suitor to choose his remedy of either moving
the machinery under the Act or to approach the
Civil Court. Further the Hon'ble Supreme Court
held that it is we shall presently show that the Civil
Court will have no jurisdiction to try and adjudicate
upon an industrial dispute if it concerned
enforcement of Court will have no jurisdiction even
to grant a decree of injunction to prevent the
threatened injury on account of the alleged breach
of contract if the contract is one which is recognized
by and enforceable under the Act alone.
5. AIR 2008 SC 2553 in the case between Rajasthan
SRTC and others - appellant v/s. Mohar Singh -
respondent, in para 11 the Hon'ble Supreme Court
of India observed that the Civil Court may have a
limited jurisdiction in service matters but it cannot
10 O.S.5736/2015
be said to have no jurisdiction at all to entertain a
suit.
6. 2009 (4) KCCR SN 199 in the case between
Rajasthan State Road Transport Corporation and
another - appellants v/s. Bal Mukund Bairwa -
respondent, wherein in Clause - B - Industrial
Employment (Standing Orders) Act 1947 and
Section 5 - A dispute arising in between an
employer and employee may or may not be an
industrial dispute. The dispute may be in relation to
or arising out of a fundamental right of the
employee, or his right under a Parliamentary Act
and the Regulations framed there under, and/or a
right arising under the provisions of the Industrial
Disputes Act or the sister laws and may relate to
same or similar rights or different rights, or even
may be based on common law right or contractual
right. Then, the question in regard to the
jurisdiction of Civil Court must, therefore, be
addressed having regard to the fact as to which
rights or obligations are sought to be enforced for
the purpose of invoking or excluding the jurisdiction
of a Civil Court.
11. Here, on perusing the entire paras of all the pleadings
and relief claimed for is relating to determine the rights or
11 O.S.5736/2015
liability of the plaintiff under the Industrial Dispute Act.
Though, the plaintiff is working as Chief Manager and she may
not come under Section 2(a) as a workman under Industrial
Dispute Act 1947. But her rights or liability shall be decided
before the Labour Commissioner under the Industrial Dispute
Act 1947. Here, when the plaintiff has not received the letters
issued by the defendant's company dated 08-12-2014 and 26-
12-2014 then the Executive Director Sri.Manjit Singh
deposited the gratuity amount of the plaintiff under a cheque
bearing No.205479 dated 27-03-2015. Therefore, under such
circumstances, the claims or right or liability of the plaintiff
has to be determined before the Labour Commissioner under
Industrial Dispute Act 1947.
12. Here, the plaintiff without exhausting the remedies for
her grievance as alleged in all paras of the plaint before the
proper forum i.e., before Labour Commissioner under
Industrial Dispute Act, directly filed this suit declaring the
order and the termination as particularly from letter dated 28-
11-2013 issued by the defendant No.1 is malafide and illegal
and further in prayer column of the plaint para VI and VII the
plaintiff sought for benefit of merger of DA with basic pay
which was not done in spite of the memorandum of
application under Section 12(iii) and 18(iii) of the Industrial
Dispute Act 1947 and also merging special allowance with the
basic pay and by introduction of DA with retrospective effect
12 O.S.5736/2015
as per resolution passed by the Board during 3/2008. So, here
prayer column (vi) itself goes to show that the gratuity fund
and other termination benefits shall be decided under the
provision of the Industrial Disputes Act 1947 as mentioned in
prayer column of the plaint para VI. Therefore, the plaintiff
herself disclosed the invocation of Section 12(iii) and 18(iii) of
Industrial Dispute Act 1947.
13. If the Industrial Dispute relates to the enforcement of the
right or obligation created under the Act, then the only remedy
available to the suitor is to get adjudication under the Act.
Further, if the right which is sought to be enforced is a right
created under the Act then the remedy for its enforcement is
under the particular statutory Act i.e., Industrial Dispute Act.
Therefore, the Civil Courts, will have hardly an occasion to
deal with the such type of cases falling under Section 2(k) of
the Industrial Dispute Act. So, here in this case the plaintiff
has been terminated as per the letter dated 28-11-2013 and
the relief sought for by the plaintiff is declaration that the
order of termination of services of the plaintiff is null and void
and the Executive Director of the 1st defendant company had
no competence to pass the said order. So, under such
circumstances, jurisdiction of Civil Court was impliedly barred
and appropriate forum for resolution of such dispute is forum
constituted under the Industrial Dispute Act 1947.
13 O.S.5736/2015
14. Under such circumstances, the rights or liability of the
plaintiff shall be determined or remedy can be obtained or
adjudged before the proper forum i.e., Industrial Dispute
Tribunal or Labour Commissioner constituted under
Industrial Dispute Act 1947. Therefore, above all the reported
decisions relied upon by the petitioner is not at all tenable
under the present facts and circumstances and on perusal of
the pleadings of the plaint. Because the plaintiff without
exhausting remedy for her termination and assessment of
terminal benefits by the 1st defendant before the appropriate
forum filed this suit is not at all maintainable under Sec.9 of
C.P.C. Because under Section 9 it appears for entertaining the
suit since the plaintiff is having a legal remedy under
particular statutory act i.e., under Industrial Dispute Act 1947
which has been invoked by herself in the prayer column of the
plaint para VI, under such circumstances the suit filed by the
plaintiff is not at all maintainable.
15. Here, the defendant No.1 is the company constituted and
formed under the Articles of Association and Memorandum of
Association under the Companies Act. Therefore, under such
circumstances, the 1st defendant company is governed and
regulated by as per the procedure and rules framed by the
defendant No.2. Therefore, the 1st defendant company is
constituted under a particular statutory act i.e., Company Act
under such circumstances the relation between the employer
14 O.S.5736/2015
and employee is to be determined under the particular
statutory Act i.e., under Industrial Dispute Act 1947. Then,
under such circumstances, the plaintiff has to seek her
remedy as prayed in prayer column of the plaint before the
tribunal constituted under Industrial Dispute Act 1947 i.e.,
before the Industrial Tribunal or before the Labour
Commissioner. Therefore, the suit filed by the plaintiff is
barred under Section 9 of C.P.C. and Civil Court has no
jurisdiction to entertain the suit filed by the plaintiff. Hence, I
answer the point in the affirmative and proceed to pass the
following
ORDER
The suit filed by the plaintiff is barred under Section 9 of C.P.C. and same is hereby dismissed as not maintainable.
(Dictated to the Stenographer, typed by her, corrected, signed and then pronounced by me in the open Court on this the 12th day of January 2018) (DEVANAND PUTTAPPA NAYAK) XXXVIII Addl. City Civil & Sessions Judge, Bangalore City.
} 15 O.S.5736/2015 ORDER pronounced in the open court vide separate judgment The suit filed by the plaintiff is barred under Section 9 of C.P.C. and same is hereby dismissed as not maintainable.
XXXVIII Addl. City Civil and Sessions Judge, Bangalore City.