Madras High Court
Indian Oxygen Ltd., Electro Factory, ... vs Ganga Prasad on 18 December, 1989
Equivalent citations: (1989)2MLJ499
ORDER J. Janarthanan, J.
1. The revision petitioner is Indian Oxygen Limited, Madras, under whom the respondent herein is an employee, on 7.4.1988, the petitioner company served a charge memo and placed the respondent under suspension for certain misconduct on his part, on which he sent a reply on 11.4.1988. Thereafter, one Mr. Madhavaiah was appointed as Enquiry Officer, on completion of the enquiry on 2.12.1988, he submitted a report and on the basis of that report, a show cause notice had been issued as to why he should not be dismissed from service. At this stage, he filed Original Suit No. 188 of 1989 on the file of learned District Munsif, Poonamallee for the relief of declaration and injunction. He also filed I.A. No. 393 OF 1989 and obtained ad-interim injunction. After enquiry, ad-interim injunction granted earlier was made absolute. It is this order that is being challenged in the Civil Revision Petition.
2. Learned Counsel appearing for the revision petitioner would make a scathing attack as to the sustainability of this order made by the Court below by urging the following points for consideration:
1. The pleadings of the respondent in the plaint, if scanned with a little bit of care and caution, would point out that the grievance of complaint, if any he had against the petitioner company, was that the domestic enquiry instituted against him is contrary to the Standing Orders of the Company and in that view of the matter, it will fall within the, ambit and scope of Items 1 and 2 of Second Schedule to the Industrial disputes Act, 1947 (for short 'the Act') and consequently, the Civil Court's Jurisdiction is barred.
2. The order passed as such by the Court below is clearly without jurisdiction tantamounting to abuse of process of law and therefore such an Order, which is a nullity, cannot be allowed to stand and the interests of justice require this Court, in exercise of the powers of revision under Section 115 of the Code of Civil Procedure as well as in exercise of the power of superintendence over all subordinate Courts under Article 227 of the Constitution of India, to interfere and set at naught the consequences flowing from such an order.
3. Learned Counsel appearing for the respondent would repel the submissions as above and so much his point of view in the form of proposition as hereunder:
1. The reliefs prayed for by the respondent are not grantable in any of the forums constituted under the provisions of the Act and therefore it is recovers has to be had invoking the jurisdiction of the Civil Court.
2. If for any reason this Court comes to the conclusion that the Civil Court is not having the requisite jurisdiction, even then the order passed by the Court below cannot be set at naught by this Court exercising its powers under Section 115 of the Code of Civil Procedure in view of the fact that the Order of the Court below is an appeal-able order and appeal lies to the District Judge, who alone will be having requisite power to interfere with the same.
4. Before embarking upon a discussion on the submissions made by learned Counsel appearing on both sides, quite proper it is to refer to the decision of the apex of the judicial administration of the country as well as the decisions rendered by this Court expounding the principles governing the jurisdiction of the Civil Court and the forums constituted under the provision of the Act.
5. In Premier Automobiles Ltd., v. K.S. Wade , the Supreme Court enunciated the principles thus:
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 the granted 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 Section 33C or the raising of an industrial dispute, as the case may be.
6. In Grindlays Bank Employees Union v. I. Kannan (1978) 1 L.J. 453, a learned Judge of this Court has held as follows:
A clear distinction has to be made between an industrial dispute for enforcing any right, obligation or liability created under the Industrial Disputes Act and a dispute for the purpose of enforcing any right, obligation or liability under the general law or common law. If a dispute is of the former category, the Civil Court has no jurisdiction. But if in the industrial dispute is of the latter catagory, namely, for enforcing any right, obligation or liability under the general or common law, surely the aggrieved party can go to civil court and the jurisdiction of the Court is not ousted.
The ouster of the Civil Court's jurisdiction is based on the principle that where an act creates an obligation and enforces the performance in a specified manner, the rule is that the performance cannot be enforced in any other manner.
7. In the backdrop of the principles enunciated by the aforesaid two decisions, an approach may be made to resolve the tangle in the instant case, in the sense of arriving at a conclusion as to whether the reliefs prayed for by the respondent would fall within the domain of the forums created under the provisions of the Act or otherwise it would fall within the exclusive jurisdiction of the Civil Court. For determination of this question, a scanning of the pleading set out by the respondent in his plaint as well as in the affidavit filed in support of the interlocutory Application for the releif of injunction is necessary. In the concluding paragraph of the plaint, it is specifically averred as follows:
Hence the plaintiff is obliged to file this suit for a declaration that the charge sheet issued to him, the appointment of an enquiry officer are illegal, inoperative and without jurisdiction Contrary to the Standing orders of the Company and for a permanent injunction restraining the Defendant Management from dismissing the Plaintiff from services.
(underlining is mine)
8. The opening sentence in paragraph 4 of the affidavit filed is couched in the following terms:
I submit that the show cause notice issued is very vague and is not in conformity with the standing orders of the company.
This line of thinking get further reinforced in the concluding paragraph 9 therein reiterating the portion as extracted in present paragraph 7.
9. The sum and substance, so to say, of the essence of the pleadings above would tantamount saying that the Enquiry Proceedings etc. had been conducted in flagrant violation of the standing orders of the company. Worthy it is to note at this juncture, items 1 and 2 of the Second Schedule to the Act. They are:
Item-1.The propriety and legality of an order passed by the employer under the Standing Orders.
and ltem-2.The application and interpretation of the Standing Orders.
10. Looking at the crux of the pleadings and Item 1 and 2 of the Second Schedule to the Act as stated above, it is fluidly clear that the reliefs prayed for by the respondent would fall within the domain of the forums constituted under the Act, thereby ousting the jurisdiction of the Civil Court. Once this conclusion is arrived at, the order passed by the Court below is clearly without jurisdiction and a nullity, which cannot be allowed to stand.
11. The second fact of the argument of learned Counsel for the, respondent as reflected above looks attractive on the face of it, yet its untenability would get exposed by the trend of the authorities on this aspect of the matter, which can now be considered.
12. In Amamath v. Jhandhu Lal , a learned Judge of the Punjab and Haryana High court observed as follows regarding the exercise of power of revision by High Court.
When jurisdiction is misused, exceeded or withheld by a Court and the product of its deliberations do not conform even to assemblance of the order envisaged under the provision of law, then the power is there with revisional Court to put that Court back to its jurisdiction. The availability of the appellate remedy in such circumstances cannot be a clog to the exercise of the revisional jurisdiction.
13. In S. Sundaram Pillai v. Govindaswami , M.N. Chandurkar, C.J, as he then was, observed as follows:
Now it is true that the Division Bench has held in Abdul Shukoor's case A.I.R. 1976 Madras 350, that no appeal lies against an order of ad-interim injunction. But, to accept the contention of the plaintiff in the present case that the defendant should first appear before the trial Court and move the trial Court for setting aside the injunction, would really have the effect of permitting the plaintiff to have the benefit of an order which is patently erroneous and to say the least, perverse and has been obtained by suppressing material facts, in any case, the High Court in the exercise of its revisional jurisdiction under Section 115 of CPC cannot allow an order, which amounts to an abuse of the powers vested in the trial Court, to stand once such an order comes to the notice of the High Court.
14. In Vaishanav College for Women v. Mrs. Aleyamma Thomas (1971) 1 M.L.J. 76, a learned judge of this Court has observed as follows:
In this case, against the order in question, the petitioner has no right of appeal to this Court, directly or indirectly. He has only a remedy by way of an appeal to the District Court without any further right of appeal to this Court. In view of this position, I am of the view that there is no bar in entertaining this revision petition under Section 115 of the Code. Even otherwise, as pointed out by the Division Bench in Official receiver, Guntur v. Seshayya , the revision having been entertained and admitted, it is not proper to dismiss it on the ground that it should not have been admitted. I am not inclined to dismiss the revision petition as not maintainable at this stage even if I were to hold that the revision is not normally to be entertained in cases where remedy by way of an appeal is available, to the petitioner. It is well-settled that where interference is found necessary in any particular case, the High Court may of its own motion call for the record even without an application by the aggrieved party. I therefore proceed on the basis that the revision is maintainable.
15. On the face of the observations as above, it is futile for learned Counsel for the respondent to contend that this Court cannot exercise the powers of revision to set at naught, in the sense of setting aside the order passed by the Court below, which was one passed without jurisdiction. Pertinent it is to refer at this juncture the decision in Hindustan Antibiotics Ltd., v. Ramdas Trimbak Deshmukh (1977) 51 P.J.R. 300. In that case, a domestic enquiry regarding certain misconduct was instituted against certain workmen. While the enquiry was in progress they filed a suit in a Civil Court seeking to declare that the appointment of the Enquiry Officer and the disciplinary proceedings were bad in law, inoperative and not binding on the workman as they were grounded on mala-fides. The Civil Court issued an ad-interim injunction under Order 39 of the Civil Procedure Code restraining the employer from proceeding with the domestic enquiry. Taking up the question of jurisdiction as a preliminary issue, the trial Court held that the question of bonafides or mala fides of the employer could be decided only by a Civil Court and hence it had jurisdiction to try the suit. On appeal by the aggrieved employer, learned Judge held as follows:
Courts must grant relief of injunction only in situations which so clearly call for it as to make its refusal work real and serious hardship and injustice. Injunction is a preventive relief against irremediable mischief. An injury is deemed to be irreparable and mischief is said to be irremediable where damage apprehended from the threatened act cannot be compensated with money. If a right being assailed as not justiciable, no relief in the form of injunction, temporary or perpetual, can be granted. In this case, the workmen had founded their suit on an anticipated breach of contract of personal service the performance of which could not be specifically enforced under Section 41(s) of the Special Relief Act, 1963. When the Court was not competent in the case of dismissal of the employee to pass a decree requiring the employee to be treated as being in employment, it would not have jurisdiction to grant a lesser relief of prohibiting the employer from proceeding with the disciplinary proceeding against the employees. Therefore, the Order of ad-interim injunction was entirely misconceived and the trial Court had abused powers vested under Order 39, Code of Civil Procedure.
The observations extracted above are applicable on all fours to the facts of the present case.
16. In view of what has been stated above, the revision deserves to be allowed.
17. In the result, the Civil Revision Petition is allowed; the Order of the Court below is set aside and I.A. No. 393 of 1989 is dismissed, however, in the circumstances of the case, I make no order as to costs.