Gujarat High Court
Gujarat University & 2 vs Praful Ramanlal Kandoi on 21 October, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/19245/2006 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 19245 of 2006
TO
SPECIAL CIVIL APPLICATION NO. 19247 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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GUJARAT UNIVERSITY & 2....Petitioner(s)
Versus
PRAFUL RAMANLAL KANDOI....Respondent(s)
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Appearance:
MRS VD NANAVATI, ADVOCATE for the Petitioner(s) No. 1 - 3
MR RV DESAI, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 21/10 /2016
CAV JUDGMENT
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HC-NIC Page 1 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT
1. Since the issues involved in all the captioned applications are more or less the same and the challenge is also to the selfsame order passed by the Gujarat Universities Services Tribunal, those were heard analogously and are being disposed of by this common judgment and order.
2. By these applications under Article 227 of the Constitution of India, the Gujarat University calls in question the legality and validity of the order dated 22nd June, 2006 passed by the Gujarat Universities Services Tribunal below the applications filed by the respondents.
3. The facts, giving rise to these applications, may be summarized as under;
3.1 The Gujarat University is constituted under the Gujarat Universities Act, 1949. The applicant No.2 is the Director of the School of Sciences and the applicant No.3 is the Co-ordinator of the Biotechnology section at the school of sciences. The respondents joined the services of the University on the different posts, i.e., the Laboratory Assistant, Junior Clerk and Laboratory Peon. The respondents came to be appointed between 1996 and 1999.
3.2 It appears that in December, 2004, the respondents were orally terminated from their respective services.
3.3 Each of the respondents, being aggrieved and dissatisfied with the sudden action on the part of the University in terminating their services orally, preferred their respective applications before the Gujarat University Services Tribunal at Page 2 of 81 HC-NIC Page 2 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT Ahmedabad and prayed for reinstatement and regularization in service.
3.4. The case of the respondents before the Tribunal was as under;
(a) The respondents completed 720 days of continuous service.
(b) In view of the award dated 15th September, 1982 passed by the Industrial Tribunal in Reference (IT) No.475 of 1981, the University was obliged to regularize their services.
(c ) Instead of absorbing the respondents on permanent basis, their services were put to an end without any order passed in writing.
(d) The respondents are "workmen" as defined under the Industrial Disputes Act, 1947.
(e) Before terminating their services, the University, being an industry, was obliged to follow the procedure prescribed by law.
(f) The action on the part of the University in terminating the services of the respondents was violative of Section 25F of the I.D. Act, 1947.
3.5 The stance of the University before the Tribunal was as under;
(i) The provisions of the I.D. Act, 1947 are not applicable in the facts of the case.
(ii) The respondents were appointed purely on temporary basis, and had no legal right to hold the post or continue on Page 3 of 81 HC-NIC Page 3 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT the post.
(iii) The respondents were appointed without inviting any applications from the people at large by issue of any public advertisement or notice.
(iv) Since the respondents were appointed purely on temporary basis, the University was not obliged to pass any order of termination in writing.
3.6 The Tribunal adjudicated the controversy, and by the impugned order, quashed the termination of the respondents from the service. While quashing the action of termination, the Tribunal took the view that the University was obliged to comply with the mandatory provisions of section 25F of the I.D. Act, 1947. The Tribunal also took the view that by virtue of section 7(3) of the Gujarat University Services Tribunal Act, 1983, it had the jurisdiction to consider the issue as regards the violation of the mandatory provisions of the I.D. Act, 1947. The Tribunal also took the view that in view of the specific provisions of the Tribunal Act, 1983, the Labour Court or the Industrial Tribunal would have no jurisdiction to adjudicate the controversy.
3.7 However, the Tribunal rejected the prayer of the respondents as regards the payment of the regular salary and regularization in service.
3.8 In taking the aforesaid view, the Tribunal placed strong reliance on a Division Bench decision of this Court in the case of Saurashtra University Karmachari Parivar vs. Saurashtra University, 2005 (4) GLR 3677 and also on the Page 4 of 81 HC-NIC Page 4 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT decision rendered by a learned Single Judge of this Court in the case of Veer Narmad South Gujarat University vs. Satishkumar Ramjibhai Patel, 2010 (4) GLR 3322.
3.9 The operative part of the impugned order passed by the Tribunal reads as under;
"60. In view of discussion hereinabove, it appears to me that when University has terminated the service of present three petitioners without compliance of section 25F quashing and setting aside the sa ID Action, they are required to be restored to the same status, which they held when their services were terminated.
61. In the result action of University terminating the services of the relevant petitioner by oral dated 31.12.2004 is hereby quashed and set aside.
It is declared that such an action is de hors the provisions of section 25F being void ab inito non-est and therefore while ordering restoration of the same status (reinstatement), order of back wages require to follow.
62. In view of discussion hereinabove in this order, prayer of respective petitioner to regularize one's service on permanent basis requires to be rejected, as the same is difficult to be extended considering that one's initial appointment with University is de horse with Article 14 and 16 of the Constitution of India.
63. It appears that relevant petitioner joined opponent University with open eyes with salary offered to them. Considering initial date of one's appointment, it appears that thereafter salary of relevant petitioner was also increased by the University. Considering initial entry of the relevant petitioner in the University, it appears that no petitioner made any6 grievance about the salary offered or no offer of regular salary in the pay scale. It appears that relevant petitioner has availed the benefit of increase in the salary and now after that, grievance is made regarding the same by way of this petition and direction is sought against opponents. Therefore, it appears to be that once respective petitioner has Page 5 of 81 HC-NIC Page 5 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT accepted the initial salary and joined the University, salary to be offered at the initial stage, can be said to be "conditions" of service". It is not the case of any of the petitioner/s that this 'condition' of service' is disturbed by the University.
It appears that demand of respective petitioner to have regular salary (admissible) to regular employees of the relevant post in pay scale) cannot be said to be "conditions of service", as there was no contract of employment qua this between respective petitioner and University.
In that case of the circumstances, prayer made in the respective petition to direct the opponent/s to give regular salary and/or arrear as the case may be requires to be rejected.
64. In the result, petitioner Mr. Praful Ramanlal Kandoi of Petition No.47/04 is hereby ordered to be restored/reinstated with full back wages (last salary paid to him), in the University service, as 'lab Assistant' considering as if that his service was never terminated/retrenched vide oral order dated 31.12.2004.
In the same manner, petitioner Mr. Punit Rameshchandra Trivedi, of Petition No.48/04 is hereby ordered to be restored/reinstated with full back wages (last salary paid to him), in the University service, as Junior Clerk considering as if that his service was never terminated/retrenched vide oral order dated 31.12.2004.
In the same manner, petitioner Mr. Satish Keshaji Vaghela of Petitiion No.49/04, is hereby ordered to be restored/reinstated with full back wages (last salary paid to him), in the University service as Lab Peon considering as if that his service was never terminated/retrenched vide oral order dated 31.12.2004.
Let payment of arrear be made within period of 30 days from the date of securing free copy by University or w.e.f. the date on which photocopy of free copy is served by any of the petitioners on University, whichever is earlier. Failure will carry 7% simple rate of interest, till payment.
65. University is hereby directed to comply this Page 6 of 81 HC-NIC Page 6 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT order/direction forthwith, as the same is required to be complied forthwith in view of section 7(2) of Gujarat Universities Services Tribunal Act, 1983.
66. In view of discussion hereinabove, prayer to direct opponent to pay arrear of salary and/or regular salary and regularization in service is hereby rejected."
3.10 Being dissatisfied with the impugned order passed by the Tribunal, the University has filed these applications, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.
4. On 8th September, 2006, the following order was passed;
"RULE. Notice as to interim relief returnable on 10th November, 2006.
Pending these petitions, there shall be ad-interim stay in terms of paragraph 10(B).
Registry will maintain copy of this order in each petition."
5. Submissions on behalf of the University;
5.1 Mr. S.N. Shelat, the learned senior counsel appearing for the University vehemently submitted that the impugned order passed by the Tribunal is without jurisdiction. The learned counsel would submit that the Tribunal had no jurisdiction to entertain, deal with and decide an application for the protection or enforcement of the rights created or the liabilities imposed under the Industrial Disputes Act, 1947 or any other law, for the time being, in force, and the only remedy available to the respondents was to approach the Industrial Tribunal/Labour Court or an Authority constituted and/or established under the relevant statute.
5.2 The order passed by the Tribunal, declaring the action on Page 7 of 81 HC-NIC Page 7 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT the part of the University, violative of section 25F of the I.D. Act, 1947 in the purported exercise of power under section 7(3) of the Act, 1983 must necessarily be held to be null and void and without jurisdiction.
5.3 The word "dispute" in section 7(3) would not include the industrial dispute under the I.D. Act, 1947. According to Mr. Shelat, if a statute creates a special right or liability and provides the procedure for the determination therefor, an aggrieved party should call in aid the provisions of the statute and he cannot invoke the jurisdiction of any other forum. In resolving the industrial disputes or for implementation of the rights and observances of the liabilities under the I.D. Act, 1947, the only remedy available to an aggrieved party is to invoke the provisions of the I.D. Act.
5.4 The Universiies Tribunal has the jurisdiction to decide any dispute which is connected with the "conditions of service" of a University employee. The conditions of service will not include the applicability of the provisions of the I.D. Act, 1947. According to Mr. Shelat, if it is the case of an employee that his termination of service was in breach or violation of the provisions of the I.D. Act, 1947, then the only remedy for him is to approach the Labour Court or the Industrial Tribunal as the case may be.
5.5 The Tribunal, unnecessarily, went into the issue of the violation of section 25-F of the I.D. Act rather than examining the matter from the point of view of dispute connected with the conditions of service.
Page 8 of 81HC-NIC Page 8 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT 5.6 The words "any dispute" used in section 8 of the Act, 1983 relates to its ordinary meaning i.e. the adjudication of the rights and obligations as regards the conditions of service or rights and obligations arising under the Act, 1983 and not the adjudication of the Industrial Disputes, which have acquired a special meaning and significance under the Industrial Law.
5.7 The non-obtante clause in section 7(3) of the Act, 1983 would only mean that there would be an impediment to the adjudication of the disputes similarly to those arising under the Act, 1983 by any other authority, functioning under any other law in force. Such a clause cannot confer jurisdiction where there is none and all that such a clause would mean would be that in the case of a dispute within its purview, it would be the Act, 1983 that would prevail and not a similar provision in any other law for the time being in force.
5.8 Assuming for the moment that the jurisdiction of the Tribunal on one hand, and the Labour Court on the other, is coordinate and it is for the aggrieved party to approach any authority he chooses, the Tribunal should decline the exercise of jurisdiction for the purpose of enforcing the provisions of the I.D. Act, 1947. The Universities Services Tribunal is a creature of statute. It has to function within the four corners of the statute and cannot exercise powers outside the Act.
5.9 The decision of this Court in the case of Veer Narmad South Gujarat University vs. Satishkiumar Ramjibhaqi Patel, 2010 (4) SLR 3322, on which strong reliance has been placed by the Tribunal is per-incurium, as many Supreme Court decisions on this issue have not been taken into consideration.
Page 9 of 81HC-NIC Page 9 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT 5.10 Mr. Shelat submitted that even if this Court is inclined to take the view and holds that the Tribunal had the jurisdiction to enforce the provisions of the Industrial Disputes Act, 1947, the order of reinstatement in service was not at all warranted. Mr. Shelat would submit that the earlier trend of the Supreme Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in the recent past, there has been a shift in the legal position and in a long line of cases, the Supreme Court has consistently taken the view that the relief, by way of reinstatement with the back wages is not, automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is found to be in contravention of the prescribed procedure. According to Mr. Shelat, monetary compensation instead of reinstatement has been held to meet the ends of justice.
5.11 Mr. Shelat, in support of his submissions, has placed reliance on the following decisions;
(i) Premier Automobiles Ltd. vs. Kamlakar Shanta Ram Wadke, AIR 1976 (I) SCC 496;
(ii) A Division Bench decision of the High Court of Himachal Pradesh in the case of Himachal Pradesh Agro Industries Corporation vs. Raj Kumar, 2002 LabIC 1342;
(iii) A decision of the Supreme Court in the case of Vice Chancelor, Lucknow University Lucknow, U.P. vs. Akhilesh Kumar Khare & Anr., 2016(1) SCC 521;
Page 10 of 81HC-NIC Page 10 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT 5.12 In such circumstances referred to above, Mr. Shelat prays that there being merit in all the applications, they be allowed and the impugned order be quashed.
5.13 In the alternative, Mr. Shelat prays that the impugned order passed by the Tribunal be modified and the order of reinstatement in service with back wages be substituted with appropriate order of monetary compensation.
6. Submissions on behalf of the respondents;
6.1 Ms. Davawala, the learned counsel appearing for the respondents has vehemently opposed the applications filed by the University. Ms. Davawala submits that no error not to speak of any error of law could be said to have been committed by the Tribunal in passing the impugned order.
6.2 Ms. Davawala submits that the issue as regards the jurisdiction of the Tribunal is, by and large, covered by the decisions of this Court referred to and relied upon by the Tribunal. Ms. Davawala submits that the plain reading of section 7(3) of the Act, 1983 in conjunction with section 8 of the Act makes it clear that the University Tribunal has the exclusive jurisdiction to decide the dispute arising from the conditions of service or termination of service of the University employee. Ms. Davawala submits that section 7 of the Act, 1983 has conferred upon the Tribunal very wide jurisdiction and when the Tribunal finds the termination of service of any University employee to be wrong, unlawful or, otherwise, unjustified, it has the jurisdiction to direct the University to reinstate the employee in service. Ms. Davawala submits that it is not only when the Tribunal finds the termination to be Page 11 of 81 HC-NIC Page 11 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT illegal or in violation of any particular provision of law, but even in cases where the termination of the service is found to be wrong or, otherwise, unjustified, the Tribunal is empowered to grant the appropriate relief.
6.3 Ms. Davawala submits that when in the facts of the case in hand, the Tribunal found the termination of the services of her clients to be in gross violation of the provisions of section 25F of the I.D. Act, 1947, then the passing of the impugned order could not be faulted.
6.4 Ms. Davawala submitted that the Tribunal possesses all the powers and jurisdiction conferred on the Labour Courts/Tribunals/ Industrial Courts created under the Industrial Disputes Act, 1947. According to Ms. Davawala, there is nothing in the Act, 1983 to show that the Universities Tribunal cannot do what the Labour Court or the Industrial Court or the Industrial Tribunal under the Tribunal Act, 1983 can do. The Universities Tribunal is vested with all such powers. The Tribunal has the powers vested in an Appellate Court under the Code of Civil Procedure. Ms. Davawala submits that the Universities Tribunal Act is a complete code by itself and the employees who are governed by the Act, 1983 cannot travel beyond the parameters of the said Act. Whatever be the grievance, the employees will have to resolve them within the four corners of the Act, 1983.
6.5 Ms. Davawala submits that if the legislature has thought it proper to enact a special uniform law for the employees of the University, it will have to be given preference as a special enactment over the general enactments, governing the Page 12 of 81 HC-NIC Page 12 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT relationship of the employer and the employee in the industrial field.
6.6 If an employee of a University or the non-teaching staff is left to resort to the remedy under the Industrial Law, the purpose of the Tribunal Act, 1983 would be defeated. The legislature very well knew the existence of the various Labour Laws, and in that case, the provisions which are made under Part-II would not have been included in the Act and would have left the employees to resort to the existing machinery provided under the Labour Laws. She submits that knowing fully well the availability of the forums under the Labour Laws, still the legislature has thought it fit and proper to create a machinery or forum for the employees for redressal of their grievances.
6.7 Ms. Davawala submits that the Act, 1983 received the presidential assent on 23rd December, 1987. To achieve the purpose of uniformity, the Court should hold that a non- teaching staff cannot resort to any remedy other than which is provided under the Act, 1983.
6.8 Ms. Davawala submitted that the question of want of jurisdiction of the Universities Tribunal ought to have been raised before that Tribunal. Such a plea should not be permitted to be raised, for the first time, in a petition asking for a writ. According to Ms. Davawala, no such objection was raised before the Tribunal and the University submitted itself to the jurisdiction of the Tribunal.
6.9 Ms. Davawala lastly submitted that the power conferred on the High Court under Articles 226 and 227 of the Page 13 of 81 HC-NIC Page 13 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT Constitution of India is to advance justice and not to thwart it. Even if the impugned order is held by this Court to be without jurisdiction, this Court may not interfere as substantial justice could be said to have been done by the Tribunal. The learned counsel would submit that the interference should be rare under Article 227 of the Constitution and that the Court should only act in cases where there would be a grave miscarriage of justice if the Court did not interfere.
6.10 Ms. Davawala, in support of her submissions, has placed reliance on the following decisions;
(i) State of Gujarat vs. Saurashtra University Karmachari Parivar, 2005(3) SLR 705;
(ii) Saurashtra University vs. Mohmmadrafiq Ismailbhai Belim, 2007 (I) GCD 125;
(iii) Rajsthan Road Transport Corporation & Anr. vs. Bal Mukund Bairwa, 2009(4) SCC 299;
(iv) Veer Narmad South Gujarat University vs. Satishkumkar Ramjibhai Patel, 2010(4) GLR 3322;
(v) Saurashtra University Karmachari Parivar vs. Saurashtra University, 2005(4) GLR 3677;
6.11 In such circumstances referred to above, Ms. Davawala prays that there being no merit in any of the applications, they all be rejected.
7. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Tribunal committed any error in passing the impugned order.
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8. Before adverting to the rival submissions canvassed on either sides, I deem it proper to look into the provisions of the Tribunal Act, 1983. The preamble to the Act, 1983 reads as under;
"An act to provide for the constitution of a Tribunal for the purpose of determining disputes relating to conditions of service of the members of the teaching, other academic and non-teaching staff of University in the State of Gujarat, for procedure for imposition of penalty or any such member and for matters connected therewith."
9. Section 2(f) defines the term "University"
(f) "University" means a University constituted under the relevant University Act and includes any institution of higher education in the State other than a University declared under s.3 of the University,Grants Commission Act 1956, (III of 1956). to be a deemed University for the purposes of the said Act:
10. Section 2(g) defines the term "University Employee"
"2(g) "University employee" means any member of the teaching, other academic and non-teaching staff of a University (whether confirmed or temporary or on probation) in the service of such University and for the purpose of any proceeding under this Act in relation to a dispute referred to in section 8, includes any such member who has been dismissed, or removed or whose services are otherwise terminated."
11. Section 7 is with regard to the jurisdiction of the Tribunal. The same reads as under;
"7. Jurisdiction of Tribunal :- (1) The Tribunal shall have jurisdiction to entertain and decide disputes referred to In Section 8 , all suits and proceedings transferred to it under sub- section (2) of Section 13 and appeals made under sub-section (3) of Section 14 .Page 15 of 81
HC-NIC Page 15 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT (2) Where any order of dismissal, removal or reduction in rank or otherwise termination of service of a University employee is decided by the Tribunal to be wrong, unlawful or otherwise unjustified, the Tribunal may pass an order directing that the University employee shall be reinstated in service or, as the case may be, restored to the rank, which he held immediately before his dismissal, removal reduction in rank or otherwise termination of service by the University and the University shall forthwith comply with such direction.
(3) Notwithstanding anything contained in any other law for the time being In force, where the Tribunal has jurisdiction to entertain and decide a dispute as aforesaid, no other person, officer or authority shall have jurisdiction to entertain and decide such dispute pending before any person, officer, or authority on the appointed day shall, as soon as may be, transferred to the Tribunal for its decision.
12. Section 8 states that the dispute shall be decided by the Tribunal. Section 8 reads as under;
"Where there is any dispute between the University and any University employee, which is connected with the conditions of service of such University employee, the University or, as the case may be the University employee may make an application to the Tribunal for the decision of the dispute."
13. Section 13 provides for the bar of jurisdiction of the civil court, which reads as under;
"13. Bar of jurisdiction of Civil Court :- (1) No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Tribunal.
(2) All suits and proceedings between the University and any University employee relating to disputes connected with the conditions of service of such University employee, which are pending in any Civil Court on the appointed day shall be transferred to and continued before the Tribunal:Provided that nothing in this sub-Page 16 of 81
HC-NIC Page 16 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT section shall apply to execution proceedings and appeals arising out of decrees or orders passed by such court before the appointed day and such execution proceedings and appeal shall be decided and disposed of as if this Act has not been enacted.
14. Thus, the plain reading of section 7(3) would indicate that the Tribunal has the exclusive jurisdiction to decide a dispute between the employee and the University in connection with the conditions of service of the employee. It appears that the Act, 1983 is a complete code to determine the relationship between the management and its employees. The Tribunal is also vested with all the powers to do what a civil court can do, and it does not lack in any authority or power in deciding a dispute before it and in granting the appropriate reliefs to the aggrieved employees. It is significant to note that the Tribunal can pass an order of reinstatement of the employees or to restore them to the rank and to pay them the arrears of their emoluments. The employees, who are governed by the Act, 1983, cannot travel beyond the parameters of the Act, 1983. Whatever grievance is the employees have, they will have to be resolved within the four corners of the Act, 1983. I have my doubts since the Act, 1983 provides for all the problems and their solutions between the University and the University employees that the non-teaching staff has the additional and separate remedy under the industrial law.
15. I fail to understand what was the need for the respondents to challenge the termination from the service on the ground of the violation of section 25-F of the Industrial Disputes Act. All that was necessary for the respondents to point out was that the termination was in violation of the conditions of service framed by the University. I am of the view Page 17 of 81 HC-NIC Page 17 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT that the respondents were not, at all, governed by the Industrial Disputes Act and, therefore, it was not open for them to urge the legality of the termination order on the touch stone of the violation of section 25-F of the Act. Their rights and remedies are confined to the Act, 1983.
16. However, since the larger issues have been raised, and they being the neat questions of law, I have thought fit to consider the same in detail.
17. The moot question is whether the words "any dispute" in section 8 would include the "industrial dispute" in accordance with the provisions of the Industrial Disputes Act, 1947.
18. In the case of Veer Narmad South Gujarat University (supra), the University had challenged the judgment and order passed by the Gujarat Universities Services Tribunal. The Tribunal had ordered that the respondents-workmen be reinstated in service with 75% back-wages on their original posts on daily wage and temporary basis with continuity of service with all consequential and incidental benefits. The Tribunal, while issuing such directions, noticed that the termination was without complying with the provisions of section 25F of the I.D. Act, 1947. The Tribunal also rejected the plea of contract of employment of the respondents being covered by the definition in section 2(oo)(bb) of the I.D. Act in the absence of any contract of employment stipulating any limitations.
19. On behalf of the University, it was vehemently submitted that the Tribunal could not have gone into the issue as regards the violation of the mandatory provisions of section 25F or any other provisions of the Industrial Disputes Act. The learned Page 18 of 81 HC-NIC Page 18 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT Single Judge, after taking into consideration the provisions of the Act, 1983, more particularly, section 7 and section 25-J of the I.D. Act, 1947, rejected the petition holding as under;
"6. Therefore, the contention that the provision of Section 25F of the I.D.Act could not be applied in the facts of the present cases, is rejected. It is also clear from the provisions of Section 7 of the Gujarat Universities Services Tribunal Act that the Tribunal is conferred with very wide jurisdiction and when it finds the termination of service of university employee to be wrong, unlawful or otherwise unjustified, it has the jurisdiction to direct the University to reinstate in service the employee concerned. It is not only when the Tribunal finds the termination to be illegal or in violation of any particular provision of law but even in cases where the termination of service is found to be wrong or otherwise unjustified, the Tribunal is empowered to grant appropriate relief. Therefore, when in the facts of the present case Tribunal found the termination of services of the employees concerned to be unfair, insofar as other employees were subsequently employed and continued in service, the impugned order could not be faulted.
7. As recently held by the Apex Court in Harjinder Singh Vs. Punjab State Warehousing Corporation [2010 (1) SCALE 613], it is settled law that, for attracting the applicability of Section 25-G of the I.D.Act, the workman is not required to prove that he had worked for a period of 240 days during twelve calender months preceding the termination of his service and it is sufficient for him to plead and prove that while effecting retrenchment, the employer violated the rule of 'last come first go' without any tangible reason. It is further observed that, while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in such matters, the High Courts are duty bound to keep in mind that the I.D.Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the Page 19 of 81 HC-NIC Page 19 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues. It is further observed that there has been a visible shift in the Courts approach in dealing with the cases involving interpretation of social welfare legislations. The attractive mantras of globalization and liberalization are fast becoming the raison d'etre of the judicial process and an impression has been created that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganized workers. In large number of such cases, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by creating by-lanes and side-lanes in the jurisprudence developed by the Court in three decades. The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman-employee was contarary to some or the other statute or that reinstatement of the workman will put unbearable burden on the financial health of the establishment. The Courts have readily accepted such plea unmindful of the accountability of the wrong doer and indirectly punished the tiny beneficiary of the wrong ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood. It needs no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and the freedoms enshrined in the Constitution remain illusory.
8. The Tribunal has taken adequate care to reduce the back-wages and ordered reinstatement of the respondents on the same daily wages and temporary basis so as not to confer any further right of permanency or regularization in service. The judgement of this Court in Halvad Nagarpalika and anr. Vs. Jani Dipakbhai Chandravadanbhai and ors. [2003 (4) GLR 3229] has rightly been distinguished by the Tribunal on facts, insofar as the issues of regularization or direction to make the employees permanent do not arise in the present cases. Since no jurisdictional error or any other error apparent on the face of the record could be pointed Page 20 of 81 HC-NIC Page 20 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT out from the impugned judgement, this Court would not be justified in interfering with the orders in exercise of its extraordinary jurisdiction either under Article 227 or Article 226 of the Constitution, so as to reverse the impugned orders made in judicious exercise of the discretion conferred upon the Tribunal. Accordingly, the petitions are summarily dismissed.
20. In the case of Saurashtra University (supra), the Saurashtra University challenged the order passed by the Deputy Labour Commissioner, Saurashtra-Kutch at Rajkot making a reference of the dispute and the order passed by the Industrial Tribunal, Rajkot in Reference (IT) directing the University to maintain the status quo with respect to the five workmen. The learned counsel appearing for the University submitted that the order passed by the Industrial Tribunal, Rajkot was without any jurisdiction and authority of law inasmuch as the subject matter of the said order was covered under the Gujarat Universities Services Tribunal Act, 1983. The learned counsel appearing for the University submitted that in view of the provisions of sections 7 and 8 of the Act, 1983, the University Tribunal was the only forum, having jurisdiction to decide the dispute between the University on one hand and its employee on the other hand. On behalf of the respondents it was contended that under sub-section (3) of section 7 of the Act, 1983, what is barred is the jurisdiction of the civil court only and not that of the "Labour Court" and "Industrial Tribunal". While allowing the petition filed by the Saurashtra University, the learned Single Judge held as under;
"[6] On the other hand, Mr. P. V. Hathi, learned Counsel appearing with Mr. P. R. Desai for the respondent, submitted that under sub-sec. 3 of Sec. 7 of the Act, what is barred is the jurisdiction of the civil Court only and not that of the 'Labour Court' and 'Industrial Tribunal'. The submissions of Mr. Hathi cannot be accepted in view of Page 21 of 81 HC-NIC Page 21 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT the language of sub-sec. (3) of Sec. 7, which reads as under :
"......no other person, officer or authority shall have jurisdiction to entertain and decide such dispute......."
It is further required to be noted that sub-sec. (3) of Sec. 7 has used the words, "person, officer, or authority". There is no reason for which these words should be read to mean exclusion of the jurisdiction of the civil Courts only and not the exclusion of the jurisdiction of the Labour Court and Industrial Tribunal also.
[11] Mr. Hathi, the learned Counsel, relied upon a judgment of the Apex Court in the matter of Jai Bhagwan v. Management of the Ambala Central Co-operative Bank Ltd. & Anr., reported in AIR 1984 SC 286, to contend that once a dispute is referred to an Industrial Tribunal, it has to adjudicate the same. In this regard, he relied upon the observations of the Apex Court in Paragraph 3, which read as under :
"3.......Raising an industrial dispute is a well-recognised and legitimate mode of redress available to a workman, which has achieved statutory recognition under the Industrial Disputes Act and we fail to see why the statute- recognised mode of redress should be denied to a workman because of the existence or availability of another remedy. Nor are we able to understand how an Industrial Tribunal to whom a dispute has been referred for adjudication can refuse to adjudicate upon it and surrender jurisdiction which it undoubtedly has to some other authority. While the Government may exercise their discretion in deciding whether to refer or not to refer a dispute for adjudication, the Tribunal to whom the dispute has been referred has no discretion to decide whether to adjudicate or not. Once, a reference has been properly made to an Industrial Tribunal, the dispute has to be duly resolved by the Industrial Tribunal. Resolution of the dispute cannot be avoided by the Tribunal on the ground that the workman had failed to pursue some other remedy.........."
(Emphasis supplied) Mr. Hathi, the learned Counsel, could not convincingly point out as to how the decision of the Apex Court is Page 22 of 81 HC-NIC Page 22 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT applicable to the facts of the present case. In the present case, by a specific provision in the statute, the jurisdiction of other forums is barred. This was not the position in the case before the Apex Court, and therefore, the said decision has no application to the facts of the present case.
[12] Mr. Hathi, the learned Counsel, next relied upon a decision of the Apex Court in the matter of the Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke & Ors., reported in AIR 1975 SC 2238. He invited the attention of the Court to the principles laid down by the Apex Court, which are to be applied while considering the question of 'jurisdiction of the civil Court' in the matters related to the 'industrial dispute'. The same are as under :
"(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 Sec. 33C or the raising of an industrial dispute, as the case may be."
7.Mr. Hathi could not convince the Court that how the principles laid down by the Apex Court are applicable to the facts of the present case. In fact, the short question, involved in the present case, is as to whether the Labour Court or Industrial Tribunal will have any jurisdiction, when the jurisdiction of such forum is specifically barred by a provision of the Act. In view of that, the said decision has no application to the facts of the present case.
Page 23 of 81HC-NIC Page 23 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT [13] Mr. Hathi, the learned Counsel, next relied upon a judgment of the Apex Court in the matter of Chandrakant Tukaram Nikam & Ors. v. Municipal Corporation of Ahmedabad & Anr., reported in 2002 (1) LLJ 842 : [2002 (2) GLR 1257 (SC)], wherein the Apex Court was pleased to hold that, "the only question raised in these appeals was whether the jurisdiction of civil Court was barred, as the relief sought for by the plaintiffs-appellants in their civil suits came within the ambit of "industrial dispute"
under Sec. 2(k) of the Industrial Disputes Act, 1947. It was held that, "the jurisdiction of the Civil Court was impliedly barred in these cases, having regard to the relief sought for in the suits, in which workmen of the respondent-Municipal Corporation had challenged orders of dismissal/removal from service". It was further held that, "the appropriate forum for resolution of the dispute was the one constituted under the Industrial Disputes Act".
In the case before the Apex Court, the workmen of Ahmedabad Municipal Corporation challenged the orders of dismissal/removal from service, by filing a Civil Suit. The City Civil Court framed four issues, of which one was 'whether the suit was bad for want of jurisdiction'. On the said issue, the Court came to the conclusion that, 'the Civil Court has no jurisdiction to entertain and try the suit', accordingly the suit was dismissed. Identical suits filed by different employees against the orders of termination were also dismissed by the City Civil Court. Individual appeals were preferred and all those appeals, six in number, were disposed of by a common judgment by the learned single Judge of this Court. The learned single Judge came to the conclusion that, 'the Civil Court will have the jurisdiction to go into the question, as to whether the orders of termination of services were null and void, having been passed by an authority who had no competence to pass the same'. The learned single Judge was further pleased to hold that, 'it will have no jurisdiction to examine the alleged lacuna in the procedural part of disciplinary inquiry which is governed by Standing Orders', meaning thereby, that the jurisdiction of the Civil Court to enter into such question must be held to be impliedly barred. With this conclusion, the learned single Judge set aside the judgment of the City Civil Court and remitted the matters for adjudication Page 24 of 81 HC-NIC Page 24 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT on the point, as to whether the order of termination could be interfered with on the ground of want of competence on the part of the authority, who had passed the order. The plaintiff/workman assailed the same by filing Letters Patent Appeal contending, inter alia, that the City Civil Court will have no jurisdiction to go into the procedural irregularities because the provisions of Industrial Disputes Act are applicable. Ahmedabad Municipal Corporation filed cross-objection in the Letters Patent Appeal challenging that part of the judgment and decree of the learned single Judge whereunder the single Judge had quashed the decree of the City Civil Court and remanded the matter to City Civil Court. All these Letters Patent Appeals as well as the cross-objections were disposed of by a common judgment. The Division Bench of this Court was pleased to hold that the City Civil Court was right in holding that it has no jurisdiction to hear the suits instituted by the employees/plaintiffs and the learned single Judge was not right in holding that the question of competence of the authority, who had passed order of dismissal or who had passed the order to initiate disciplinary proceedings could be decided by the Civil Court. According to the Division Bench even that question about the competence of the authority who had passed the order can be gone into by the Labour Court or Industrial Tribunal, and therefore, the Civil Court's jurisdiction to entertain a suit was held to have been impliedly barred. The Letters Patent Appeals were dismissed and cross-objections filed by the Corporation were allowed.
It is in this background that the Apex Court was pleased to hold that the jurisdiction of the Civil Court was impliedly barred and that the appropriate forum for resolution of the dispute was the one provided under the Industrial Disputes Act.
In the present case, an appropriate forum for resolution of the dispute is provided under the special statute by a specific provision, that is Sec. 8 of the Act, and the jurisdiction of the other forums is barred by sub-sec. 3 of Sec. 7. In such circumstances, it will be the forum provided under the statute, which will have the jurisdiction to decide the dispute between the parties.
[14] In view of the foregoing discussion, this Court is of Page 25 of 81 HC-NIC Page 25 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT the opinion that the forum, which is provided under the Act, will have jurisdiction to try and decide the dispute between the parties and not the Labour Court or Industrial Tribunal. The order dated 4th December, 2001, passed by the Deputy Labour Commissioner, Saurashtra- Kutch, Rajkot, Annexure-A to the petition, and the order dated 7th March, 2002 passed by the Industrial Tribunal, Rajkot in Reference (I.T.) No. 10 of 2002, are therefore, quashed and set aside. The Industrial Tribunal, Rajkot is directed to return the papers of Reference (I.T.) No. 10 of 2002 to the respondent-Union within two weeks from the date of receipt of this order, so as to file the same before the Tribunal constituted under the Act for its adjudication. Rule is made absolute. No order as to costs."
21. The judgement rendered by the learned Single Judge referred to above was challenged by the Saurasthra University Karmachari Parivar by filing the letters patent appeal. A Division Bench of this Court, while affirming the view taken by the learned Single Judge referred to above, held as under;
"12. We have heard learned advocates appearing for the respective parties and we have very closely and scrupulously considered their respective submissions. We have also gone through the impugned order and judgment passed by the learned Single Judge. We have also given our anxious thoughts to the relevant statutory provisions and authorities cited before us. We are of the view that the learned Single Judge has come to the just and proper conclusion both on law as well as on facts and the impugned judgment and order does not call for any interference by us while exercising our appellate powers under Clause 15 of the Letters Patent Act. The provisions contained in Section 8 are very clear which states that Where there is any dispute between the University and any University employee, which is connected with the conditions of service of such University employee, the same can be decided by the Tribunal on an application being moved either by the employee or by the University to the Tribunal for its decision on the dispute so raised in that application.Page 26 of 81
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13. The word "any dispute" covers the controversy arose between the appellant and the University and such dispute can certainly be decided by the Gujarat University Services Tribunal. The Industrial Tribunal can not decide this dispute which arose between the University employee and the University by virtue of the restriction imposed in Sub-section (3) of Section 7 of the Act. We, therefore, found sufficient force in the argument of Mr. Nanavati that in view of the provisions contained in Clause (g) of Section 2, Sub-section (3) of Section 7 and Section 8 of the Act, there is no question of any other forum having jurisdiction to decide the dispute between the University and the employee of the University.
14. We are also not much impressed by the submission of Mr. Desai to the effect that the Industrial Dispute Act is a Central Act and Gujarat University Services Tribunal Act is a State Act and hence, the Central Act would prevail upon the State Act in case of any repugnancy. It is for the simple reason that the State Act has received the assent of the President on 06.01.1988 and by virtue of the provisions contained in Article 254(2) of the Constitution of India, the provisions contained in the State Act would prevail upon the provisions contained in an earlier law made by Parliament. The reliance placed by Mr. Desai on the decision of the Hon'ble Supreme Court in the case of GUJARAT AGRICULTURAL UNIVERSITY V/S. RATHOD LABHU BECHAR (SUPRA) is also not of much avail to the appellant as Section 2(f) of the Act defines University which means an University constituted under the relevant University Act and includes any institution of higher education in the State other than University, declared under Section 3 of the University Grants Commission, 1956 to be a deemed University for the purposes of the said Act. The Gujarat Agricultural University does not fall within the ambit of this definition and hence, observations made by the Hon'ble Supreme Court in that case would not be pressed into service so far as the issue pertaining to the present appellant and the Saurashtra University is concerned. The reliance placed by Mr. Desai in the case of JAI BHAGVAN V/S. MANAGEMENT OF AMBALA CENTRAL COOPERATIVE BANK LIMITED (SUPRA) would also not of much assistance to the appellant as the basic issue which arose before the learned Single Judge and before us is as to whether a reference has been properly made or not. The Hon'ble Page 27 of 81 HC-NIC Page 27 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT Supreme Court has also observed in the said decision that once a reference has been properly made to the Industrial Tribunal, the dispute is to be duly resolved by the Industrial Tribunal. In other words, if the reference has not been properly made or if the Industrial Tribunal has no jurisdiction and still reference has been made, then in that case, it cannot be argued that once the reference having been made, a decision taken by the Industrial Tribunal on the dispute referred to it cannot be questioned on the ground of jurisdiction. If on proper interpretation of the relevant statutory provisions, the learned Single Judge has come to the conclusion that the dispute raised can only be decided by the Gujarat University Services Tribunal, then in that case, if any decision is taken by the Industrial Tribunal that can certainly be challenged on the ground of jurisdiction and that challenge would certainly weigh with the Court and in this view of the matter, we do not find any infirmity in the view taken by the learned Single Judge while allowing the petition.
15. In the above view of the matter, in our considered opinion, the learned Single Judge has taken the correct decision on the facts and circumstances of the case and in light of the relevant statutory provisions and the settled legal position and it does not require any interference by us while exercising our appellate powers under Clause 15 of the Letters Patent Act. The appeal is, therefore, dismissed. Notice discharged without any order as to costs. "
22. Thus, the Division Bench laid much emphasis on the words "any dispute' as contained in section 8 of the Act, 1983. The Division Bench took the view that the Industrial Tribunal could not have decided the dispute between the University employee and the University by virtue of the restriction imposed in sub-section (3) of section 7 of the Act.
23. In the case of Mohammed Rafiq Ismailbhai Belim (supra), the Saurashtra University challenged the order passed by the Gujarat University Tribunal, whereby the services of the Page 28 of 81 HC-NIC Page 28 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT respondents were ordered to be regularized on the post of the helper. On behalf of the University, it was contended that as the initial appointment of the employee was not legal, the Tribunal had no jurisdiction to order regularization of the employee. While rejecting the application filed by the University, the learned Single Judge held as under;
"[2] Challenging the above judgment and order, the learned counsel for the petitioner has reiterated the contention that the very initial appointment of the petitioner was not legal and the Tribunal had no jurisdiction to order regularisation of the service of the respondent. The learned counsel relied upon the provisions of sections 7 and 8 of the Gujarat University Service Tribunal Act, 1983 to submit that the disputes regarding dismissal, removal or reduction in rank could be entertained by the Tribunal and regularisation of service was not within the scope of the powers of the Tribunal. This contention has to be stated to be rejected in view of the express provisions of section 8 under which any dispute between the University and any University employee which is connected with the conditions of service of such employee could be taken to the Tribunal by making an application for the decision of the dispute. The provisions of section 7 of the Act also expressly states that the Tribunal shall have jurisdiction to entertain and decide the disputes referred to in section 8. Therefore, there is no substance in the contention that the Tribunal had no jurisdiction to decide the dispute regarding regularisation of service of the employee of University.
[3] As regards the other contention that the respondent was not legally appointed by the petitioner, there is a clear finding recorded by the Tribunal on the basis of the affidavit of the Registrar of the University that the respondent was holding the post of Helper since 04.7.1988 and by virtue of the Resolution dated
24.5.1994 the respondent was entitled to have benefits of the same at par with other persons holding other posts which were duly approved by the Government. In any case, the affidavit of the Incharge Registrar filed on behalf of the petitioner in terms stated that, the Page 29 of 81 HC-NIC Page 29 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT respondent was already given the benefits which were available to the regular employees which included increment, leave, dress etc. Thus, in short, not only that the respondent was serving against a post since the year 1988 but that post was formally regularized by a conscious decision of the Government expressly in terms of the Resolution dated 24.5.1994. The respondent had worked for 10 more years thereafter before the impugned judgment.
[4] Learned counsel Mr Thacker has relied upon the recent decision of the Constitution Bench of the Supreme Court in Secretary, State of Karnataka & Ors. V, Umadevi & ors., 2006 4 JT 420 and argued that the service of the petitioner could not be regularized in view of illegality in the initial appointment of the respondent. However, the action of the petitioner in appointing the respondent 18 years ago and his continuous service under the petitioner against a vacant post on regular basis, cannot support presumption of illegality in absence of any material in that regard. On the contrary, as discussed in the impugned judgment, this appointment and service of the respondent could, at the most, be said to be irregular in which case, it would be covered by the observations made by the Supreme Court in para 44 in Umadevi's case . The learned counsel also relied upon the Full Bench decision of this Court in Amreli Municipality v. Gujarat Pradesh Municipal Employees Union, 2004 3 GLR 1841."
24. Thus, out of the five judgments relied upon by Ms. Davawala referred to above, only one decision in the case of Veer Narmad South Gujarat University (supra) takes the view that the University Tribunal has the exclusive jurisdiction to decide the dispute between the University and its employee as regards the violation of the provisions of the Industrial Disputes Act, 1947. So far as the other decisions of this Court are concerned including the Division Bench decision, there was no direct issue involved in those cases as regards the jurisdiction of the Universities Tribunal to adjudicate an industrial dispute within the meaning of the I.D. Act, 1947.
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25. According to Mr.Shelat, the judgment of this Court in the case of Veer Narmad Sought Gujarat University (supra), rendered by a learned Single Judge is per-incurium as the following decisions of the Supreme Court have not been considered in the said case.
(i) Dhulabhai vs. State of M.P., AIR 1969 SC 78;
(ii) Premier Automobiles Ltd. vs. Kamlekar Shantaram Wadke, 1976 (1) SCC 496
(iii) Rajasthan SRTC vs. Krishna Kant & Ors., AIR 1995 SC 1715;
26. The sum and substance of the submission of Mr. Shelat is that in resolving the industrial disputes or for the implementation of the rights and observances of the liabilities under the I.D. Act, 1947, the only remedy available to an aggrieved party is to invoke the provisions of the I.D. Act. To put it differently, an aggrieved employee has to approach either the Industrial Tribunal or the Labour Court established and constituted under the I.D. Act or under the relevant law. He cannot invoke the jurisdiction of a civil court or any other forum/authority which includes the University Tribunal constituted or established under any other statute.
27. Since Mr. Shelat, the learned senior counsel has raised a neat question of law and wants this Court to hold that the decision of this Court in the case of Veer Narmad South Gujarat University (supra) is per-incurium, I must examine the issue very closely and in detail.
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28. The Principal Act which deals with the rights of the workmen is governed by the provisions of the Industrial Disputes Act, 1947, the preamble of the Act reads as under:-
"Whereas it is expedient to make provision for the investigation and settlement of industrial disputes, and for certain other purposes hereinafter appearing"
Section 2(k) defines an industrial dispute to mean any dispute or difference between the employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or nonemployment or the terms of employment or with the conditions of labour, of any person. The definition of "workman" also has got some significance here which has been defined under Section 2(s), to mean that any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward,whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such persons like persons employed in the defence services, police services or in the managerial or administrative capacity or supervisory capacity drawing wages exceeding Rs.10,000/- per month.
29. One other provision which may be of relevance is Section 2(A) of the Industrial Disputes Act. This amendment was introduced by Act 35 of 1965 under which dismissal of an Page 32 of 81 HC-NIC Page 32 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT individual workman also is to be deemed to be an industrial dispute. Section 2(A) reads as under:
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".
30. The Labour Courts and Tribunals are constituted under Sections 7, 7(A) to 7(C) of the Act. The procedure, powers and duties of the authorities constituted under the Act are dealt with by Section 11 and 11(A) of the Act. The duties of Labour Courts and Tribunals are prescribed under Section 15 of the Act. We are not concerned with the manner in which the Courts function under the provisions of the Industrial Disputes Act.
31. In this context, let me first refer to Section 9 of the C.P.C. which expressly or impliedly barred. There is one broad aspect as to whether Civil Court has got jurisdiction at all in Industrial matters. The land mark judgment in this aspect is that of the Apex Court reported in "1976 (I) LLN page 1 = AIR 1975 S.C.2238 (PREMIER AUTOMOBILES LIMITED -versus- KAMALAKAR SHANTHARAM WADKE)." In the said judgment, the Supreme Court has set out the principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute. This is one of the numerous issues that used to invariably crop up in a Civil Court. The issue is about an industrial dispute. To Page 33 of 81 HC-NIC Page 33 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT put it in simple terms, an industrial dispute as defined under the Industrial Disputes Act, 1947 is a dispute or difference of opinion between an employer and employee in respect of their conditions of working. Therefore, in respect of such an industrial dispute, when a conflict arises, how far a Civil Court can interfere in such matters is the question. The Supreme Court has set out four broad principles.
"(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 Chap.V.A then the remedy for its enforcement is either S.33C or the raising of an industrial dispute, as the case may be."
32. For instance if the heir of a deceased employee or some other person makes a rival claim in respect of the terminal benefits payable to a deceased employee, then though the issue concerns the concerned employee as against the employer, still, the core issue of the dispute is not the one arising under the Industrial Disputes Act. In such cases, the remedy will be by way of a Civil suit and the Civil Court will have ample jurisdiction to deal with that issue.
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33. Similarly there may be cases, where the issue may fall within the category of an Industrial Dispute, arising out of the right or liability under the general law or common law and under the Industrial Disputes Act. For instance, one may dispute the amount payable by the L.I.C. covered by the provisions of the general law or any other common law, yet, the issue may still relate to an employee, the Insurance Company and the employer by virtue of some tripartite agreement. In such a situation, the jurisdiction of the Civil Court may be the alternative. Because, the employee can validly raise an Industrial Dispute under the provisions of the Industrial Disputes Act to get his grievances redressed or he can resort to the Civil Court remedy.
34. On the other hand, if the issue squarely falls within the ambit of the provisions of the Industrial Disputes Act, enforceable under that Act, then the remedy will be only under the said Act and Civil Court jurisdiction will be completely ousted. For example, under the Industrial Disputes Act, the justification of a strike or lockout or lay off can be worked out only through the machinery provided under the Industrial Disputes Act. In view of the aid set-up, the Jurisdiction of the Civil Court is completely taken way. The Judgment of the Supreme Court in Premier Automobiles case as been subsequently dealt with still more elaborately in the Rajasthan Road Transport Corporation Case reported in "1995 (II) LLJ 728 : (1995) 5 SCC 75 (THE RAJASTHAN STATE ROAD TRANSPORT CORPORATION AND ANOTHER, ETC., versus KRISHNAKANTH, ETC.)". Reference can be had to paragraphs Page 35 of 81 HC-NIC Page 35 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT 22,23,25 and 26. A reading of the above paragraphs gives a clear picture as to what extent and in what cases the Civil Court can exercise its jurisdiction in respect of the Industrial Matters. The observations in para-25 are relevant;
"25........This statement cannot be understood as saying that no industrial dispute can ever be entertained by or adjudicated upon by the Civil Courts. Such an understanding would not only make the statement of law in principle No.2 wholly meaningless but would also run counter to the well established principles on the subject.........It is therefore always in the interest of the workmen that disputes concerning them are adjudicated in the forums created by the Act and not in a Civil Court. That is the entire policy underlying the vast array of enactments concerning workmen. This legislative policy and intendment should necessarily weigh with the Courts in interpreting these enactments and the disputes arising under them".
35. Ultimately the Supreme Court summarised the principles in paragraph 32. In this judgment, seven principles have been evolved. In paragraph 34, the Supreme Court also stated that the principles enunciated therein shall apply to all pending matters and also the suits and proceedings to be instituted hereafter. The seven principles evolved 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 2A 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.
Page 36 of 81HC-NIC Page 36 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT (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 2A 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 Page 37 of 81 HC-NIC Page 37 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT 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."
36. Subsequently, a two Judge Bench of the Supreme Court in Rajasthan SRTC Vs. Zakir Hussain reported in (2005) 7 SCC 447 relied upon Premier Automobiles Judgment (cited supra) and Rajasthan SRTC Judgment reported in (1995) 5 SCC 75. The four principles laid down in the Premier Automobiles case and the seven principles subsequently expanded in Rajasthan SRTC case was referred to in detail and the Hon'ble Supreme Court highlighted the well known principle that whereby an act creates an obligation and enforces the purpose in a specified manner, the purpose cannot be enforced in any other manner. In the said judgment, the Hon'ble Supreme Court was dealing with the case of a Conductor who was on daily wages on probation for a period of two years and whose service came to be terminated on the ground of unsatisfactory performance. The challenge to the order of termination was by way of a suit for declaration that the termination order was illegal, against the principles of Natural Justice and was therefore liable to be set aside. It was also claimed that the employee was entitled Page 38 of 81 HC-NIC Page 38 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT to continuity in service without any break. The Supreme Court ultimately held that the employee ought to have worked out his remedies under the Industrial Disputes Act and the Civil Court jurisdiction could not have been invoked.
37. Subsequently, a two Judge Bench of the Supreme Court in the decision reported in Rajasthan SRTC Vs. Mohar Singh reported in (2008) 5 SCC 542 dealt with a case of dismissal. The employee approached the Civil Court for setting aside the order of dismissal. The Trial Court decreed the suit. The first appeal was also dismissed by the learned Additional District and Sessions Judge. The High Court also dismissed the second appeal holding that there was no substantial question of law involved.
38. In Mohar Singh's (supra) the present case, even after referring to the Premier Automobiles Judgment and the two earlier decisions in Rajasthan SRTC reported in (1995) 5 SCC 75 as well as in (2005) 7 SCC 447, the Supreme Court declined to interfere with the judgment impugned before it. This time the Supreme Court leaned in favour of exercising the right of an employee through the Civil Court for working out his remedies by stating as under in paragraphs 15, 19 and 29:
"15. Civil Court may have a limited jurisdiction in service matters but it cannot be said to have no jurisdiction at all to entertain a suit. It may not be entitled to sit in appeal over the order passed in the disciplinary proceedings or on the quantum of punishment imposed. It may not in a given case direct reinstatement in service having regard to Section 14(1)(b) of the Specific Relief Act, 1963 but, it is a trite law that where the right is claimed by the plaintiff in terms of common law or under a statute other than the one which created a new right for the first time Page 39 of 81 HC-NIC Page 39 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT and when a forum has also been created for enforcing the said right, the Civil Court shall also have jurisdiction to entertain a suit where the plaintiff claim benefit of a fundamental right as adumbrated under Article 14 of the Constitution of India or mandatory provisions of statute or statutory rules governing the terms and conditions of service.
19. We must also notice the distinction between a right which is conferred upon an employer under a statute for the first time and also providing for a remedy and the one which is created to determine the cases under the common law right. Only in a case of the former, the Civil Court's jurisdiction may be held to be barred by necessary implication.
29. The decisions referred to hereinbefore clearly brings about a distinction which cannot be lost sight of. If a right is claimed under the Industrial Disputes Act or the sister laws, the jurisdiction of the Civil Court would be barred, but if no such right is claimed, civil court will have jurisdiction."
39. The issue was further dealt with in an elaborate manner by a three Judge Bench of the Supreme Court in Rajasthan SRTC Vs. Bal Mukund Bairwa reported in (2009) 4 SCC 299. The earlier decisions of the Rajasthan SRTC judgments reported in (1995) 5 SCC 75, (2005) 7 SCC 447 and (2008) 5 SCC 548, were all examined in detail by keeping the principles laid down in Premier Automobiles judgment in the forefront.
40. In fact before entering into the issue concerned in that case, the Supreme Court noted a reference made to it by the Division Bench in the order dated 22.11.2007 for the resolution of a purported conflict in 2 three Judges Bench judgment of the Supreme Court in Rajasthan SRTC case viz., (1995) 5 SCC 75 and (2006) 1 SCC 59. The purported conflict as noted in the said judgment centres around the jurisdiction of the Civil Court Page 40 of 81 HC-NIC Page 40 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT to entertain the suits questioning the order of termination passed by the SRTC against its employees.
41. The Supreme Court in the (2009) 4 SCC 299 judgment by referring to Section 9 of the Code of Civil Procedure which confirms the jurisdiction of the Civil Court to try all suits of a civil nature excepting the suits of which their cognizance is either expressly or impliedly barred. The Supreme Court also took notice of the scheme of the Industrial Disputes Act, 1947 in regard to the procedure prescribed for the resolution of the disputes relating to the employees on the one side and the employers on the other side. The view taken by the Hon'ble Supreme Court is as under in paragraph 20:
"20. Before us, however, the statutory Regulations framed by the appellant - Corporation under Section 45 of the Act had been placed. We do not find that any distinction has been made in regard to the matters relating to holding of the departmental proceedings against an employee for commission of a misconduct vis- `-vis the industrial workers. The question as to whether in a case of this nature where violation is alleged as regards compliance of principles of natural justice either on common law principles or in terms of the statutory Regulations framed by the appellant - Corporation, which is a fundamental right in terms of Article 14 of the Constitution of India, a civil suit will be maintainable or not, thus, have not been taken into consideration in any of the aforementioned decisions. The legal principles, namely, presumption in regard to the jurisdiction of the Civil Court and interpretation of a statute involving plenary jurisdiction of a civil court had also not been taken into consideration."
42. Further it proceeded to hold as to under what circumstances the Civil Court jurisdiction can be invoked. A reference to paragraphs 21, 23 and part of para 24 can be Page 41 of 81 HC-NIC Page 41 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT usefully referred, which are as follows:
"21. 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 thereunder, 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. The question in regard to the jurisdiction of the 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.
23. If an employee intends to enforce his constitutional rights or a right under a statutory Regulation, the civil court will have the necessary jurisdiction to try a suit. If, however, he claims his right and corresponding obligations only in terms of the provisions of the Industrial Disputes Act or the sister laws so called, the civil court will have none.
In this view of the matter, in our considered opinion, it would not be correct to contend that only because the employee concerned is also a workman within the meaning of the provisions of the 1947 Act or the conditions of his service are otherwise governed by the Standing Order certified under the 1946 Act ipso facto the Civil Court will have no jurisdiction. This aspect of the matter has recently been considered by this Court in Rajasthan State Road Transport Corporation & ors. vs. Mohar Singh [(2008) 5 SCC 542]. The question as to whether the civil court's jurisdiction is barred or not must be determined having regard to the fact of each case.
If the infringement of Standing Order or other provisions of the Industrial Disputes Act are alleged, the civil court's jurisdiction may be held to be barred but if the suit is based on the violation of principles of common law or constitutional provisions or on other grounds, the civil court's jurisdiction may not be held to be barred. If no right is claimed under a special statute in terms whereof Page 42 of 81 HC-NIC Page 42 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT the jurisdiction of the civil court is barred, the civil court will have jurisdiction.
24......When there is a doubt as to whether civil court has jurisdiction to try a suit or not, the courts shall raise a presumption that it has such jurisdiction."
43. In Dhulabhai (supra), the Supreme Court held that if a statute creates a special right or liability and provides procedure for the determination therefor, an aggrieved party should call in aid the provisions of the statute and he cannot invoke the jurisdiction of any other forum. The condition No.2 of Dhulabhai's case (supra) reads as under;
"Where there is an express for bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the later case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not."
44. The Supreme Court considered the case of Dhulabhai (supra) in a very recent pronouncement in the case of Shri Vimal Kishor Shah & Ors. vs. Mr. Jayesh Dinesh Shah & Ors., 2016 (8) Scale 116, The question which arose before the Supreme Court was whether a clause in a trust deed, which provides for resolving the disputes arising between the beneficiaries of the trust through the arbitration, can constitute an "arbitration agreement" within the meaning of sections 2(b) Page 43 of 81 HC-NIC Page 43 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT and 2(h) read with section 7 of the Act, 1996 and whether the application filed by the respondents therein under section 11 of the Act could be held as maintainable. The Supreme Court took the view, relying on the principle explained in Dhulabhai's case (supra) that when the Trust Act exclusively deals with the trust, trustees and the beneficiaries and provides for the adequate and sufficient remedies to all the aggrieved persons by giving them a right to approach the civil court of the principal original jurisdiction for redressal of their disputes arising out of the trust deed and the Trust Act, then any such dispute pertaining to the affairs of the Trust including the dispute inter se the trustee and the beneficiary in relation to their right, duties, obligations, removal etc. cannot be decided by the arbitrator by taking recourse to the provisions of the Act. Such disputes have to be decided by the civil court as specified under the Trust Act.
45. I take notice of the fact that the Supreme Court also considered the Premier Automobiles Ltd. (supra). The relevant observations are in paragraphs- 52 to 60.
"52. Keeping in view the aforesaid principle of law, let us now examine the Scheme of the Trust Act. The Trust Act was enacted much prior to independence with an object to define and amend the law relating to private Trusts and the trustees. The Act consists of 93 Sections, which are divided, in IX chapters.
53) Chapter I deals with short title, commencement, repeal of enactments and interpretation of words (Sections 1 to 3). Chapter II deals with the creation of a Trust (Sections 4 to 10). Chapter III deals with the duties and liabilities of the Trustees (Sections 11 to 30).
Chapter IV deals with the rights and powers of the Trustees (Sections 31 to 45). Chapter V deals with the Page 44 of 81 HC-NIC Page 44 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT disabilities of the Trustees (Sections 46 to 54). Chapter VI deals with the rights and liabilities of the beneficiaries (Sections 55 to 69). Chapter VII deals with vacating the office of the Trustee (Sections 70 to 76). Chapter VIII deals with extinction of the Trusts (Sections 77 to 79) and Chapter IX deals with certain obligations in the nature of Trust (Sections 80 to 93).
54) Even cursory perusal of the headings of each Chapter including what is provided in the Sections would go to show that the legislature has dealt with and taken care of each subject comprehensively and adequately. It starts from the creation of the Trust, how it is required to be created (deed), who can create (author of the Trust/settlor), who can manage(trustees), for whose benefit it can be created (beneficiaries), their qualifications for appointment, grounds for removal, rights and duties, restrictions on their exercise of powers, obligations and legal remedies available to get the grievances settled etc. are all specified in the Trust Act.
55) So far as legal remedies available to the author of the Trust/settlor, Trustees and the beneficiaries for ventilating their several grievances in respect of their rights duties, removal and obligations under the Trust Deed and the Trust Act are concerned, they are specifically provided in Sections 7, 11, 34, 36, 41, 45, 46, 49, 53, 71, 72, 73 and 74 of the Trust Act. These sections, in specific terms, confer jurisdiction on Civil Court and provides that an aggrieved person may approach the principal Civil Court of Original Jurisdiction for adjudication of his grievances. This clearly shows the intention of the legislature that the legislature intended to confer jurisdiction only on Civil Court for deciding the disputes arising under the Trust Act.
56) The Constitution Bench of this Court in a leading case of Dhulabhai etc. vs. State of Madhya Pradesh & Anr., AIR 1969 SC 78 examined the question as to how the exclusion of jurisdiction of Civil Court in the context of express or implied bar created in any special law should be decided. Their Lordships examined the question in the context of Section 9 of the Code of Civil Procedure, 1908 and the bar created in special law.
Page 45 of 81HC-NIC Page 45 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT
57) Justice Hidayatullah, the learned Chief Justice speaking for the Bench laid down 7 conditions for determining the question of bar for prosecuting the remedies in the Civil Court or judicial Tribunals/authorities constituted under any special law. Though the issue examined in Dhulabhai's case (supra) pertained to bar created in special law vis-a-vis filing of the civil suit by an aggrieved party, yet the decision, in our view, lays down the general principle as to how the courts should decide the issue of express or/and implied bar in the context of the remedies available in law.
58) So far as the question involved in the case at hand is concerned, it is governed by condition No. 2 of Dhulabhai's case (supra) which reads as under:
"(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or thesufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.
Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not."
59) When we examine the Scheme of the Trust Act in the light of the principle laid down in condition No. 2, we find no difficulty in concluding that though the Trust Act do not provide any express bar in relation to applicability of other Acts for deciding the disputes arising under the Trust Act yet, in our considered view, there exists an implied bar of exclusion of applicability of the Arbitration Act for deciding the disputes relating to Trust, trustees and beneficiaries through private arbitration. In other words, when the Trust Act exhaustively deals with the Trust, Trustees and beneficiaries and provides for adequate and sufficient remedies to all aggrieved persons by giving Page 46 of 81 HC-NIC Page 46 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT them a right to approach the Civil Court of principal original jurisdiction for redressal of their disputes arising out of Trust Deed and the Trust Act then, in our opinion, any such dispute pertaining to affairs of the Trust including the dispute inter se Trustee and beneficiary in relation to their right, duties, obligations, removal etc. can not decided by the arbitrator by taking recourse to the provisions of the Act. Such disputes have to be decided by the Civil Court as specified under the Trust Act.
60) The principle of interpretation that where a specific remedy is given, it thereby deprives the person who insists upon a remedy of any other form of remedy than that given by the statute, is one which is very familiar, and which runs through the law, was adopted by this Court in the case of The Premier Automobiles Ltd. vs. Kamlakar Shantaram Wadke & Ors., AIR 1975 SC 2238 while examining the question of bar in filing Civil suit in the context of remedies provided under the Industrial Disputes Act (See G.P. Singh, Principles of Statutory Interpretation, 12th Edition, Pages 763- 764). We apply this principle here because, as held above, the Trust Act creates an obligation and further specifies the rights and duties of the settlor, Trustees and the beneficiaries apart from several conditions specified in the Trust Deed and further provides a specific remedy for its enforcement by filing applications in Civil Court. It is for this reason, we are of the view that since sufficient and adequate remedy is provided under the Trust Act for deciding the disputes in relation to Trust Deed, Trustees and beneficiaries, the remedy provided under the Arbitration Act for deciding such disputes is barred by implication."
46. The learned counsel appearing for the respondents also made an attempt to submit that the jurisdiction of the Universities Tribunal and the Industrial Tribunal/Labour Court is concurrent and the option is available to the aggrieved party. If he chooses to approach the Universities Tribunal, the only thing which is required to be ascertained is whether the dispute relates to the "conditions of service". If it is, the Page 47 of 81 HC-NIC Page 47 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT jurisdiction of the Universities Tribunal is not barred irrespective of the fact that it is also an "industrial dispute"
within the meaning of the I.D. Act and not withstanding that he could have approached the Industrial Tribunal/Labour Court.
47. The learned counsel appearing for the respondents also submitted that the ratio laid down in the Premier Automobiles Ltd. (supra) and the other decisions of the Supreme Court, relied upon by the learned counsel appearing for the University, would not apply in these type of cases. The Supreme Court, according to the learned counsel appearing for the respondents, has not laid down that the Tribunal like the Universities Tribunal, in the case in hand, will have no jurisdiction in such cases. All that the Supreme Court has held is that the civil court will have no jurisdiction.
48. In my opinion, the principle laid down in the Premier Automobiles Ltd. (supra), Dhulabhai (supra), G.S.R.T.C. (supra) and Shri Vimal Kishor Shah (supra) would apply not only to the jurisdiction of the civil courts but to all the courts as well as the other forums/authorities. The ratio, as propounded in all the decisions of the Supreme Court referred to above, clearly, expressly and unequivocally, lay down that if the dispute relates to the enforcement of a right or obligation created under the I.D. Act, then the only remedy available to the aggrieved party is to get it adjudicated under the Act. To put it in other words, it is not, as contended on behalf of the respondents that the ratio laid down in the decisions of the Supreme Court referred to above bars the jurisdiction of the civil courts and not of the Tribunals, but is that when a right is created or obligation is imposed by a statute, the remedy to the aggrieved party is to get such dispute adjudicated under Page 48 of 81 HC-NIC Page 48 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT the Act. The bar, in my view, is not limited to the ouster of the jurisdiction of the civil courts, but to all the authorities and forums.
49. In the aforesaid context, I may refer to and rely on a Division Bench decision of the High Court of Himachal Pradesh in the case of Himachal Pradesh Agro Industries Corp. (supra). C.K. Thakker, C.J. (as his lordship then was) had the occasion to consider a substantial question of law affecting the jurisdiction of the Himachal Pradesh State Administrative Tribunal. On behalf of the State/Authorities/employers, it was contended that the Administrative Tribunal had no power, authority or jurisdiction to entertain the petitions/applications claiming the reliefs under the Industrial Disputes Act, 1947. It was contended that all the orders passed by the Administrative Tribunal by invoking the provisions of the I.D. Act or under the corresponding law in favour of the petitioners, were illegal, unlawful and without jurisdiction. The Division Bench considered the provisions of the I.D. Act, 1947, the provisions of the Administrative Tribunal Act, the judgments of the Supreme Court in the case of Premier Automobiles (supra), Dhulabhai (supra), Rajasthan Road Transport Corporation (supra) and the other decisions and answered the question holding that the Administrative Tribunal, constituted and established under the Administrative Tribunals Act, 1985, has no jurisdiction to entertain, deal with and decide an application for the protection or enforcement of the rights created or the liabilities imposed under the Industrial Disputes Act, 1947 or any other law for the time being in force and the only remedy available to the aggrieved party is to approach the Industrial Tribunal/Labour Court or an authority constituted and/or Page 49 of 81 HC-NIC Page 49 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT established under the relevant statute. The relevant observations are as under;
"[37] It was rightly submitted on behalf of the authorities that ID Act is a self contained code and it provides in detail the rights conferred on employees and remedies available to them for protection, implementation and enforcement of those rights. It is well settled that when a statute confers rights and provides remedy, an aggrieved party has to avail the remedy provided under the Act and it is not open to him to invoke jurisdiction of ordinary Court. Our attention in this connection was invited by the Council to several decisions. In the well known case in Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78, it has been held by the Supreme Court that if a statute creates a special right or liability and provides procedure for the determination therefor, an aggrieved party should call in aid the provisions of the statute and he cannot invoke the jurisdiction of any other forum.
[40] The Counsel, therefore, submitted that in resolving industrial disputes or for implementation of rights and observances of liabilities under ID Act, the only remedy available to an aggrieved party is to invoke the provisions of the ID Act. To put it differently, an aggrieved party has to approach either Industrial Tribunal or Labour Court established and constituted under the ID Act or under the relevant law. He cannot invoke the jurisdiction of a civil Court or any other forum/authority constituted or established under any other statute.
[41] We are impressed by the argument advanced by the learned counsel for the authorities. It is, no doubt, contended on behalf of the respondents that what was barred was jurisdiction of civil Court under the Code of Civil Procedure and not of the jurisdiction of Administrative Tribunal constituted and established under the AT Act. Once it is conceded that the matter is a "service matter" as defined in Section 3 of the AT Act, exclusive jurisdiction is of the Administrative Tribunal and an aggrieved party can approach the Tribunal by invoking Section 19 of the Act. Section 28 is an exception to Section 19 of the AT Act, or a sort of proviso to rule, which declares that the exclusion of jurisdiction of Courts would not apply to any Industrial Tribunal, Labour Court Page 50 of 81 HC-NIC Page 50 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT or other authority constituted under the ID Act or any other corresponding law for the time being in force. In the light of the said provision, at the most, it can be said that the jurisdiction of both the authorities, namely, Administrative Tribunals on the one hand and Industrial Tribunal or Labour Court on the other hand, is to co- ordinate and it is left to the aggrieved party to approach any authority he chooses. It, however, cannot be contended that Administrative Tribunal is devoid of jurisdiction in such cases. We are unable to uphold the contention. Let us consider some of the decisions cited by the learned counsel for both the sides.
[42] In Krishan Prasad Gupta v. Controller, Printing and Stationery AIR 1996 SC 408 : 1996 (1) SCC 69 : 1996-I- LLJ-296, the appellant was an employee of the respondent. He filed an application under the Payment of Wages Act alleging, inter alia, that the respondent illegally withheld his wages. The authority passed an order allowing the application of the employee. The respondent preferred an appeal before the District Judge. During the pendency of appeal, an Administrative Tribunal was created under the AT Act. Under Section 29 of the Act, the appeal was transferred to the Administrative Tribunal. The appeal was dismissed. The aggrieved employer approached the Supreme Court. The question for determination before the Apex Court was whether the appeal before the District Court could be transferred to the Administrative Tribunal.
[43] Considering the relevant provisions of the AT Act, the Court held that the jurisdiction of Industrial Tribunal/Labour Court or other authorities under the ID Act or any other corresponding law for the time being in force remained unaffected.
The Court stated:
"It is, therefore, apparent that in spite to Section 14 of the Act, the jurisdiction of the Industrial Tribunal, Labour Courts or other authorities, under the Industrial Disputes Act or Authority created under any other corresponding law remains unaffected. The original, or for that matter, the appellate authority under the Payment of Wages Act is neither an Industrial Tribunal nor Labour Court nor are they 'Authorities' under the Industrial Disputes Act, 1947 Page 51 of 81 HC-NIC Page 51 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT but if the Payment of Wages Act is ultimately found to be a "corresponding law", the jurisdiction of the authorities under the Payment of Wages Act would also be saved".
[44] The Court also indicated that the ID Act and other corresponding law is "a part of the same social legislative canopy made by Parliament for immediate amelioration of workmen's plight resulting from non-payment, or delayed payment or, for that matter, short payment of their wages".
The Court, therefore, concluded:
"Our conclusion, therefore, is irresistible that the 'Authority', constituted under Section 15 and the appellate authority under Section 17 of the Payment of Wages Act, fall within the exception indicated in Section 28 of the Administrative Tribunals Act and this Act, namely, Payment of Wages Act, is positively covered by the connotation "corresponding law" used in that Section. Consequently, the jurisdiction of the Authority to entertain and decide claim cases under Section 15 of the Payment of Wages Act is not affected by the establishment of the Administrative Tribunals".
[45] The Court also observed that the jurisdiction of the Appellate Authority under the Payment of Wages Act would not be affected by the establishment of Administrative Tribunals and the appeals could not be transferred to the said Tribunal. The appeal was accordingly allowed and the order passed by the Administrative Tribunal was set aside.
[46] In Municipal Corporation of Delhi v. Female Workers (Muster Roll) and Anr., AIR 2000 SC 1274 : 2000 (3) SCC 224 : 2000-I-LLJ- 846 it was held by the Supreme Court that the activity of the Delhi Municipal Corporation by which construction work was undertaken or roads were laid or repaired or trenches were dug would fall within the definition of industry". The persons employed on muster roll for carrying on those activities would, therefore, be "workmen" and dispute between them and the Corporation would have to be tackled as an industrial dispute in the light of various statutory provisions of industrial Law.
Page 52 of 81HC-NIC Page 52 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT [47] In Ajay D. Panalkar v. Management of Pune Telecom Department, AIR 1999 SC 538: 1997 (11) SCC 469 :
1998-II-LLJ-170 the Supreme Court was called upon to consider the "principal question" whether Central:
Administrative Tribunal (CAT) could entertain an application wherein the respondent claimed himself to be a 'workman' within the meaning of the ID Act, particularly, after Industrial Tribunal had ruled that he was not. The Court held that the decision of the Industrial Tribunal on the point could be upset only by the Court within that hierarchy and could not have been brushed aside by the Central Administrative Tribunal. Reliance was placed on Krishan Prasad Gupta (supra).
[48] Reference may also be made to a decision in Jitendra Nath Biswas v. Empire of India and Ceylone Tea Co. and Anr., AIR 1990 SC 255 : 1989 (3) SCC 582 : 1989- II-LLJ-572, wherein it was held that the relief of reinstatement and back wages of an employee would be available only under the ID Act and it could not be granted by a Civil Court. Provisions of the ID Act impliedly excluded the jurisdiction of Civil Court as regards such relief.
[49] It was strenuously contended by the other side that conjoint reading of Sections 19 and 28 of the AT Act leaves no room for doubt that the jurisdiction of Administrative Tribunal and Industrial Tribunal/Labour Court is concurrent and the option is available to the aggrieved party. If he chooses to approach Administrative Tribunal, the only thing which is required to be ascertained is whether the dispute relates to "service matter", as defined in the AT Act. If it is, the Administrative Tribunal's jurisdiction is not barred irrespective of the fact that it is also an "industrial dispute" within the meaning of the ID Act and notwithstanding that he could have approached Industrial Tribunal/Labour Court.
[50] The counsel also submitted that the ratio laid down in Premier Automobiles (supra) and Rajasthan State Road Transport Corporation (supra) would not apply in such cases. Those directions did not lay down that Administrative Tribunal had no jurisdiction in such cases. What was said in those cases was that Civil Court had no jurisdiction. They, however, did not hold that Page 53 of 81 HC-NIC Page 53 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT Administrative Tribunal had also no jurisdiction in such matters.
[51] In our opinion, the principle laid down in Premier Automobiles and reiterated in Rajasthan State Road Transport Corporation would apply not only to jurisdiction of Civil Courts but to all Courts as well as other forums/Authorities. They, in our considered opinion, clearly, expressly and unequivocally lay down that if the dispute relates to the enforcement of a right or obligation created under the ID Act then the only remedy available to the suitor is to get it adjudicated under the Act. In other words, it is not, as contended on behalf of the respondents, that the dicta laid down in the above decisions bars the jurisdiction of Civil Courts and not of Administrative. Tribunals, but is that when a right is created or obligation is imposed by a statute, the remedy to the suitor is to get such dispute adjudicated under the Act. The bar, in our considered view, is not limited to ouster of jurisdiction of Civil Courts, but to all authorities and forums.
[64] It was submitted by the learned counsel for the respondents that even according to the Supreme Court the jurisdiction of both, Administrative Tribunal and Industrial Tribunal is concurrent. We cannot read the judgment as suggested by the counsel. The question did not arise before the Supreme Court about the jurisdiction of Administrative Tribunal vis-a-vis jurisdiction of Industrial Tribunal and no decision was given on that point.
[65] Our attention was also invited by the learned counsel on behalf of the respondents to an order passed by the Supreme Court in Civil Appeal No. 6214 of 1997 (titled State of H.P. and Ors. v. Leela Dhar) decided on September 18, 2001. The said order reads thus:
"The Tribunal set aside the order of retrenchment of the respondents and directed that they may be continued in service and the respondents have been working in the establishment of the appellant for over 10 years. Therefore, we do not think, it would be appropriate for us to interfere with the order made by the Tribunal in exercise of jurisdiction under Article 136 of the Constitution. The appeals shall stand dismissed."Page 54 of 81
HC-NIC Page 54 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT [66] It was contended that the above matter arose from an order passed by the Himachal Pradesh Administrative Tribunal in OA (M) No. 557 of 1994 titled Leela Dhar v. State of H.P. The case of the petitioner before the Tribunal was that the provisions of the ID Act had not been complied with and termination of services was, therefore, illegal. The petition was entertained, order was set aside and relief was granted. The contention of the State Authorities before the Supreme Court was that Administrative Tribunal could not have exercised jurisdiction under the I.D. Act. When the appeal was dismissed by the Supreme Court, the order passed by the Administrative Tribunal became final and "Law" declared by the Supreme Court under article 141 of the Constitution. It must, therefore, be held that according to the Supreme Court, Administrative Tribunal had jurisdiction to entertain, deal with and decide matters in the domain of Industrial Law.
[67] Reading the order of the Court extracted hereinabove, however, it is clear that the Court did not think it appropriate to interfere with the order in exercise of jurisdiction under Article 136 of the Constitution and dismissed the appeal on that ground. The jurisdiction of Administrative Tribunal vis-a-vis Industrial Tribunal was not even, referred to by the Court.
[68] Reference was also made to certain; decisions of the Central Administrative Tribunals. In Dashrath Singh and Komal Singh v. Union of India and Ors., 1989 Lab IC 2236, Jabalpur Bench of the Central Administrative Tribunal, after interpreting the. relevant provisions of the AT Act and the ID Act held that a remedy under the ID Act is "arrangements as in force" within the meaning of Section 3(r) of the AT Act and a petition without seeking alternative remedy was not maintainable.
[69] In Full Bench decisions in G.M. Southern Rly. v. Presiding Officer, (1987) 4 ATC 912, S.K. Sisodia v. Union of India, (1988) 7 ATC 852 and Union of India v. Sarup Chand Singla, (1989) 9 ATC 167, the Central Administrative Tribunal held that when an employee, who had two remedies open to him either, to approach Administrative Tribunal or Industrial Tribunal, it was open to him to elect or to choose a Forum and if he chooses to Page 55 of 81 HC-NIC Page 55 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT approach Administrative Tribunal, the decision of the Tribunal cannot be termed as without jurisdiction. It was held that Administrative Tribunal was substitute not only of the High Court but of all Courts as well as Authorities and if the dispute was covered by the definition of "service matter" within the meaning of the AT Act, jurisdiction of Administrative Tribunal could not be excluded only on the ground that such a matter could have been vitiated under the ID Act or any other corresponding law for the time being in force before the Industrial Tribunal/Labour Court. The Administrative Tribunal was also vested with the jurisdiction, power and authority to deal with the grievances and complaints of persons governed by the ID Act. According to the Full Bench, there was no provision in the AT Act prohibiting the Administrative Tribunal from granting relief to employees entitled to such relief under the I.D. Act. Administrative Tribunals were constituted to expedite the adjudication of disputes and not to take away or abridge the substantive rights conferred on the empties by various statutes under Industrial laws. It also observed that Parliament never intended to force the workmen to move to different Tribunals to get their grievances redressed, one by approaching Administrative Tribunal and the other by approaching Administrative Tribunal. In leaving choice to the workmen concerned to move either of the two forums, it has left to the workman concerned to get his grievances redressed and such an action could not be held to be illegal or unlawful. It is more so when Administrative Tribunal had been held real substitute of the High Court de jure and de facto. The principle enunciated by the Supreme Court in Premier Automobiles (supra) therefore, would not apply and the jurisdiction of Administrative Tribunal would not get barred.
[70] The above Full Bench decisions, no doubt, support the contention put forward by the respondents. It cannot, however, be gainsaid that those decisions are not binding upon this Court. Moreover, in the light of conflicting decisions by various Benches, the matter was referred to a larger Bench of Central Administrative Tribunal, Hyderabad in A. Padmavathy and Ors. v. CPWD, (1990) 14 ATC 914. The larger bench considered the relevant provisions of the AT Act, the ID Act and several decisions on the point. It overruled Full Bench decisions referred to hereinabove. It held that looking to the scheme of the ID Page 56 of 81 HC-NIC Page 56 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT Act in juxtaposition of the AT Act, it was clear, that if the case was covered by the provisions of the I.D. Act, the aggrieved party had to take appropriate action in accordance with the ID Act before a forum constituted by the said Act and he could not move Administrative Tribunal. The larger Bench did not agree and did not approve the reasons recorded and grounds weighed in earlier decisions. Considering Sections 9-C, 10-A, 11- A, 33-C(2) and other provisions of the ID Act, the larger Bench held that there was no concurrent jurisdiction vested in Industrial Tribunal/Labour Court and Administrative Tribunal so far as the provisions of the ID Act were concerned. It also noted that such an interpretation would be inconsistent with the object of both the Acts. It might also result in contradictory orders being passed by two forums. It would not be in conformity with the conferment of jurisdiction under the relevant statutes. For instance, under Section 11-A of the ID Act, Industrial Tribunal/Labour Court has power to give appropriate relief in case of dismissal/discharge of an employee by reducing penalty. No such power is conferred on Administrative Tribunal. If a dismissed/ discharged workman invokes jurisdiction of Administrative Tribunal instead of approaching Industrial Tribunal/Labour Court, he would not be able to press in aid the provisions of Section 11-A of the Act. Likewise, the provisions of Section 33-C(2) is really in the nature of execution of award/ orders. The only thing which has to be seen by the Industrial forum is whether any award/order/settlement preceded. Once an award/order/settlement is there, the question is of calculation of benefits. It is not open to the employer to challenge legality or validity of such award/order/ settlement. It is also not open to the Industrial Tribunal/Labour Court to go behind award/order/ settlement. But if such a workman goes to Administrative Tribunal, in view of the original proceedings before the Administrative Tribunal, it is open to the employer to contest the matter on merits and the Administrative Tribunal has to decide validity or otherwise of such award/order/ settlement. This would virtually destroy the legislative provision frustrating the Page 57 of 81 HC-NIC Page 57 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT laudable object behind the legislation. It is also fallacious to argue that the matters would be expeditiously dealt with and decided before the Administrative Tribunal than before the Industrial Tribunal/Labour Court. It is factually incorrect and legally ill-founded.
[71] It is also profitable to refer to a decision of the Court of Kerala in Mani v. Union of India, (1990) 2 Ker LT 216, wherein a single Judge of the High Court considered the provisions of Sections 28 and 14 of the AT Act in the light of Article 323-B of the Constitution. As observed earlier, the said Article enacts that the appropriate Legislature, may, by law, provide for the adjudication or trial by Tribunals of any disputes, complaints or offences with respect to all or any of the matters specified in Clause (2) in regard to which such Legislature has power to make Rules. One of the matters specified in Clause (2) of Article 323- B is "Industrial and Labour disputes". The effect of Section 28 of the AT Act read and understood in the light at Article 323-B is that those disputes and complaints governed by the Industrial laws enacted by the appropriate Legislature are taken out of the purview of the Act notwithstanding the fact that the employees, who raise such disputes are persons appointed to any service or post and covered by the A T Act. Laws enacted by the appropriate Legislature are thus excluded from the purview of the Act enacted under Article 323-B. The provisions of Article 323-B have an overriding effect because of non-obstante Clause contained in Article 323- B (4).
[72] Since Administrative Tribunal is a creature of statute, it has to function within the four corners of the statute and cannot exercise powers outside the Act. It was also observed that Article 323-A (2) (d) only excluded the jurisdiction of Courts and other Authorities. It did not confer jurisdiction on any authority. The Administrative Tribunal, therefore, has no power to deal with matters in respect of which no express jurisdiction has been conferred on it. It is not in dispute that no Tribunal has been constituted by an appropriate Legislature in exercise of power under Article 323-B of the Constitution. The Administrative Tribunal working in the State of Himachal Pradesh is indisputably a Tribunal constituted under Article 323-A of the Act. Such Tribunal, therefore, Page 58 of 81 HC-NIC Page 58 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT has no plenary jurisdiction over matters concerning service disputes under Article 323B and AT Act.
[73] Keeping in mind the relevant provisions of the ID Act as well as other corresponding laws for the time being in force and the AT Act, there is no doubt in our minds that the ambit and scope as also object of both the Acts are distinct, separate and different independent forums, therefore, have been constituted by the competent Legislature and it is obligatory on the aggrieved person to approach an appropriate forum constituted and established under the relevant law. It is also clear to us that in Premier Automobiles (supra) and Rajasthan State Road Transport Corporation (supra), the Supreme Court laid down in no uncertain terms that where rights or obligations are created by the ID Act, the only remedy is to approach the forum created by the Act. The argument that the ratio in those cases would not apply to Administrative Tribunals inasmuch as the Supreme Court had held that Civil Court had no jurisdiction and thus jurisdiction of only Civil Court is ousted did not impress us. The Supreme Court had so held as the question had arisen regarding the jurisdiction of Industrial Tribunal/Labour Court vis-a-vis Civil Court. That, however, does not mean that the law laid down in those cases has limited application and it would not apply to Administrative Tribunals or Authorities other than Civil Court. Reading the judgment in the way in which it is sought to be suggested by the learned counsel for the respondents would make the principles formulated by the Apex Court nugatory, otiose and ineffective. The words "only remedy" used by their Lordship of the Supreme Court will also become ineffective and redundant, which is not permissible. In our considered view, proper reading of the judgments of the Supreme Court and ratio laid down therein would mean and only mean that where the rights and obligations are created by the ID Act, an aggrieved person has to approach a forum created by that Act alone. Any other interpretation, in our opinion, would be inconsistent with and contrary to the law laid down in those cases. We are, therefore, unable to read the decisions of the Supreme Court in any other manner.
[75] For the foregoing reasons, in our opinion the Administrative Tribunal constituted and established under the Administrative Tribunals Act, 1985 has no Page 59 of 81 HC-NIC Page 59 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT jurisdiction to entertain, deal with and decide an application for the protection or enforcement of rights created or liabilities imposed under the Industrial Disputes Act, 1947 or any other law for the time being in force and the only remedy available to the aggrieved party is to approach Industrial Tribunal/Labour Court or an Authority constituted and/or established under the relevant statute. The orders passed by the Administrative Tribunal either under the provisions of the ID Act or any other law for the time being in force must necessarily be held to be null and void and without jurisdiction."
50. In my view, the words " any dispute" in section 8 of the Act, 1983 would not include the industrial dispute under the Industrial Disputes Act, 1947.
51. For the purpose of adjudicating the controversy, I need to concentrate on three things; first, the non-obstante clause as contained in section 7(3); secondly, the phrase "which is connected with the conditions of service" as contained in section 8 of the Act, 1983 and, thirdly, the words "any dispute"
as contained in section 8 of the Act, 1983.
52. The expression conditions of service has been explained by the Supreme Court in its many judgments. To quote a few, in the case of State of Madhya Pradesh and others vs. Shardul Singh [1970 (1) SCC 108], the Supreme Court in paras 8 and 9 observed as under:
8. One of the powers conferred under this proviso is to make rules regulating the conditions of service of persons appointed to civil services of the Union or the State as the case may be. The expression "conditions of service" is an expression of wide import. As pointed by this Court in, Pradyat Kumar Bose v. The Hon'ble the Chief Justice of Calcutta High Court (1955) 2 SCR 1331, the dismissal of an official is a matter which falls Page 60 of 81 HC-NIC Page 60 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT within "conditions of service of public servants. The Judicial Committee of the Privy Council in North West Frontier Province v. Suraj Narain Anand (1948) LR 75 IA 343, took the view that a right of dismissal is a condition of service within the meaning of the words under s. 243 of the Government of India Act, 1935. Lord Thankerton speaking for the Board observed therein, "apart from consideration whether the context indicates a special significance to the expression conditions of service their Lordships are unable in the absence of any such special significance, to regard provisions which prescribe the circumstances under which the employer is to be entitled to terminate the service as otherwise than conditions of the service, whether these provisions are contractual or statutory; they are therefore of opinion that the natural meaning of the expression would include such provisions."
In P. Balakataiali v. The Union of India and Ors. (1958) SCR 1052 this Court proceeded on the basis that a rule providing for the termination of the service of a railway official can be made in exercise of the powers conferred on the Government by Sections 241(2), 247 and 263(3) of the Government of India Act, 1935.
9. The expression 'conditions of service' means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it in matters like pension etc.
53. In Indra Sawhney vs. Union of India [1992 Supp (3) SCC 217], the Supreme Court in para 378 observed the following:
"It has been rightly held in Rangachari case that Article 16(4) does not cover the entire field covered by Article 16(1) and (2). The conditions of service which are matters relating to employment are protected by the doctrine of equality of opportunity and do not form the Page 61 of 81 HC-NIC Page 61 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT subject-matter of Article 16(4). It is settled proposition of law that right to promotion is a condition of service. Once a person is appointed he is governed by the conditions of service applicable thereto. Appointment and conditions of service are two separate incidents of service. Conditions of service exclusively come within the expression matters relating to employment and are covered by Article 16(10 and not by Article 16(4). When all other conditions of service fall outside the purview of Article 16(4) and are exclusively covered by Article 16(1) then where is the justification to bring promotion within Article 16(4) by giving strained meaning to the expression posts. The only conclusion by reading Articles 16(1), 16(2) and 16(4) which can be drawn is that all conditions of service including promotion are protected under Articles 16(1) and (2). Article 16(4) makes a departure only to the extent that it permits the State Government to make any provision for the reservation of appointments or posts at the initial stage of appointment and not in the process of promotion."
54. I am not impressed by the submission of Ms. Davawala that there is nothing in the provisions of the Act, 1983 restricting its application to the disputes which are not the industrial disputes within the meaning of the Industrial Disputes Act. I am also not impressed by the submission that the words used in section 8 of the Act, 1983 are "any dispute' and due effect must be given to the word "any" occurring in the section before the word "dispute". It was contended that while construing and giving effect to a provision of law, no word used by the legislature should ordinarily be considered as surplusage and attempt should be made to give effect to every word used in a section. There need not be any debate as regards the application of the principles of construction while interpreting and giving effect to the provisions of sections 7 and 8 of the Act, 1983. However, the moot question is whether the word "dispute" used in sections 7 and 8 includes the differences and controversies of whatsoever nature and Page 62 of 81 HC-NIC Page 62 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT includes even claims in the nature of demands which are not based on or claimable under the ordinary law, but which could be claimed under a special Act and which could be awarded only in the manner and by the authority provided therein.
55. If there is any dispute relating to the conditions of service between the university and the employee of the University, then undoubtedly, it is only the Universities Tribunal that will have the jurisdiction to decide the same and in view of the non-obstante clause contained in section 7(3) of the Act, 1983, the jurisdiction of any other forum or authority will be ousted.
56. However, the industrial disputes and the industrial law stand on a different footing and basis altogether. The industrial law, stands by itself, both in its theory and application. This special branch of law has made many vital departures from some accepted theories of the ordinary law of the land, such as , for example, the law relating to the contracts. Under the ordinary law, a proposal when accepted becomes a promise which if it is a legally enforceable agreement is a contract which is binding on both the parties to the contract and a court of law, before which a dispute between the parties when brought before it, would decide the dispute between them according to the terms of the contract and not outside, if any. But, that is not the position in the cases when the industrial disputes are adjudicated, in the industrial courts. (vide Gujarat State Co-operative Land Mortgage Bank Ltd. vs. P.R. Mankad, Judge, Labour Court, 1968 SLR 815.)
57. The word "industrial dispute" has acquired a special meaning of its own, which cannot be equated with the ordinary Page 63 of 81 HC-NIC Page 63 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT meaning of the word "dispute". As discussed above, the law relating to the industrial disputes does not bring in, at any stage, any adjudication through or by a civil court. The Industrial Disputes Act and the Bombay Industrial Relations Act are special statutes, which provide for resolving the differences and claims of a particular nature not founded on private rights or obligations, but based on the notions, some of which, are entirely foreign to the notions on which the private rights are based.
58. I am of the view that the words "any dispute" used in section 8 of the Act, 1983 relates to the adjudication of the rights and obligations arising or connected with the conditions of service and not the adjudication of the industrial disputes, which have acquired a special meaning and significance under the industrial law.
59. Mr Shelat is right in submitting that the non-obstante clause, which is introduced in the beginning of section 7(3) of the Act, 1983, would only mean that there would be an impediment to the adjudication of the disputes similar to those arising under the Gujarat University Services Tribunal Act, 1983 by any other authority, officer or person, functioning under any other law in force. Such a clause cannot give jurisdiction where there is none, and all that such a clause would mean would be that in the case of a dispute within its purview, it would be the Tribunal Act, 1983 that would prevail and not a similar provision in any other law for the time being in force.
60. In fact, I have a very serious doubt in my mind whether Page 64 of 81 HC-NIC Page 64 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT the respondents could have challenged their termination from the service on the ground of the violation of section 25-F of the Industrial Disputes Act. In fact, the respondents were not governed by the Industrial Disputes Act and, therefore, it was not open for them to urge the legality of the termination on the touch stone of the violation of section 25-F of the Act. Their rights and remedies ought to have been confined to the Universities Tribunal Act, 1983.
61. Thus, I find a lot of substance in the submission of Mr. Shelat that the decision of this Court in the case of Veer Narmad South Gujarat University (supra), on which strong reliance has been placed, not only by the Tribunal but also by the learned counsel appearing for the respondents, is per- incurium as the Supreme Court decisions on the issue have not been considered and discussed. The other decisions of this Court should be understood in the context of the facts of those cases.
62. Ms. Davawala, relying on the decision in the case of Veer Narmad South Gujarat University (supra), laid much emphasis on section 25-J of the I.D. Act, 1947. In my view, section 25-J will not save the situation so far as the jurisdiction of the University Tribunal is concerned.
63. Section 25 (J) reads as under :
"25-J Effect of inconsistent with this Chapter:- (1) The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law (including Standing Orders made under the Industrial Employment) (Standing Orders) Act, 1946 (20 of 1946) : Provided that where under the provisions of any other Act or rules, orders or Page 65 of 81 HC-NIC Page 65 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT notifications issued thereunder or under any Standing Orders or under any award, contract of service or otherwise, a workman is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under this Act, the workman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under this Act. (2) For the removal of doubts, it is hereby declared that nothing contained in this Chapter shall be deemed to affect the provisions of any other law for the time being in force in any State in so far as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen in so far as they relate to lay-off and retrenchment shall be determined in accordance with the provisions of this chapter.
64. A comprehensive study of Chapter-V of the Industrial Disputes Act and specially Section 25-] makes it clear that amendment introduced by Section-J of the Industrial Disputes Act was done for the purposes of removing doubts about the application of retrenchment provisions in cases of workmen, who were governed by the Standing Orders or any Rules or Regulations of the conditions of service or the conduct about the employer and the employee.
65. It is well known that the Industrial Disputes Act is a progressive legislation enacted for the purposes of emancipating the workmen from the exploitation by the employer taking advantage of their weak position in comparison to the employers and to ameliorate the weaker section of the society, which formed the workmen or the labour segment in the industries. Various safe-guards have been provided in this Chapter in respect of the retrenchment and compensation to be paid as one of those safe-guards. Both Page 66 of 81 HC-NIC Page 66 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT the proviso to clause (1) as well as Clause (2) of Section 25-] articulate and emphasized the legal requirement of compliance of this Chapter in respect of all workmen, who are sought to be retrenched irrespective of other. The only exception made is that if the other provisions of any other Act or Rules gives more benefit to the workmen then the employer would not be allowed to use this Chapter as a shield or defence for non application of those. The substance of the scheme of this Chapter is that wherever and whenever and in whichever law better favourable conditions have been prescribed for the workmen then they would apply.
66. It is well known that various restrictions have been placed in this Chapter and those restrictions are for the purposes of providing protection to the workmen against whim, caprice, arbitrary removals, termination or dismissal by the employers of the employees and to stop and prohibit the old obsolate weapon of hire and fire which was used by the employer before this progressive legislation was amended from time to time.
67. At this stage, let me also deal with the contention of Ms. Davawala that the question of want of jurisdiction of the Universities Tribunal was not raised before the Tribunal itself and, therefore, the University should not be permitted to raise this issue, for the first time, while asking for a writ of certiorari.
68. In Gandhinagar Motor Transport Society v. State of Bombay; AIR 1954 Bom 202(A), it has been held that where Page 67 of 81 HC-NIC Page 67 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT the question of want of jurisdiction of a tribunal is not raised before the Tribunal, the petitioner is not entitled to a writ of certiorari. In that case, reliance has been placed on - Rex v. Williams; Philips, Ex parte', (1914) 1 KB 608 (B) and the learned Judges cited the following observations of Channell, J, on the point:
"...........A party may by his conduct preclude himself from claiming the writ 'exdebito justitiae' no matter whether the proceedings which he seeks to quash are void or voidable. If they are void it is true that no conduct of his will validate them; but such consideration do not affect the principles on which the Court acts in granting or refusing the writ of certiorari. This special remedy will not be granted 'exdebito justitiae' to a person who fails to state in his evidence on moving for the rule nisi that at the time of the proceedings impugned he was unaware of the facts on which he relies to impugn them."
69. It is evident from the observations of the learned Judge noted above that the question of want of jurisdiction of a Tribunal must first be raised before that Tribunal if it is to be permitted to be taken in a petition asking for a writ of certiorari or any other writ, unless the party shows that at the time of the proceedings impugned, he was not aware of the facts, which indicated the want of jurisdiction in the Tribunal. It is true that in this case, there is no such averment on the part of the applicant-University. It follows that the applicant-University is not entitled to the remedy by way of a writ under Article 226 of the Constitution of India. Before the Tribunal, the stance of the University was that after the enactment of the Tribunal Act, 1983, the provisions of the Industrial Disputes Act would not apply to the employees and, therefore, there was no question of legal basis for the respondents herein to invoke section 25-F Page 68 of 81 HC-NIC Page 68 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT of the I.D. Act, 1947.
70. I am inclined to the view that where there is initial and total want of jurisdiction and the petitioner comes to the High Court under Article 227, the High Court has power to grant relief in spite of the question of want of jurisdiction not having been raised before the Tribunal, whose order is under question,because there is difference in the nature of the powers under the two Articles. The jurisdiction under Article 227 is more in the nature of revisional jurisdiction and where it is a patent case of want of initial jurisdiction. I think it is a proper case for interference under Article 227.
71. In view of the aforesaid discussion, I am persuaded to take the view that the Universities Tribunal will have no jurisdiction to consider whether there has been any violation or breach of the mandatory provisions of the I.D. Act, 1947 like section 25-F of the I.D. Act. If any other dispute relating to the conditions of service is raised, then the Tribunal will have the sole jurisdiction, but it is difficult to subscribe to the view taken by this Court that the words " any dispute" would also include a pure industrial dispute.
72. My final conclusions on the seminal issue of jurisdiction of the Universities Tribunal under the Tribunal Act, 1983 are as under;
(i) The Universities Tribunal constituted under the Tribunal Act, 1983 has no jurisdiction to consider the violation or breach of the provisions of the Industrial Disputes Act, 1947.
Page 69 of 81HC-NIC Page 69 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT
(ii) The Universities Tribunal will have the sole jurisdiction to adjudicate the dispute between the University and any employee of the University connected with the conditions of service of such University employee.
(iii) The words "any dispute" used in section 8 of the Act, 1983 should be understood as one relating to the adjudication of the rights and obligations arising or connected with the conditions of service and not the adjudication of the Industrial Disputes.
(iv) If any of the parties to the proceedings before the Universities Tribunal raises an issue relating to its jurisdiction, the Tribunal should look into the averments made in the appeal/application filed by the aggrieved employee and then proceed to determine the same. If it is noticed that the aggrieved employee has raised a pure and neat issue relating to the provisions of the Industrial Disputes Act, then the Universities Tribunal shall relegate the aggrieved employee to the appropriate forum. However, if any issue relating to the conditions of service, constitutional issues or the applicability of the principles of natural justice is raised, then the Universities Tribunal will be the only forum, who will have the jurisdiction to decide the dispute between the University and the University employee.
(v) It would also be open for the Universities Tribunal to consider whether the aggrieved employee, in any manner, is governed by the Industrial Disputes Act. If the aggrieved employee is, in no manner, governed by the said Act, it would Page 70 of 81 HC-NIC Page 70 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT not be open for him to urge the legality of the termination order on the touch stone of the violation of section 25-F of the Act. His rights and remedies are confined to the Universities Act 1983.
73. The above takes me to consider whether despite holding that the University Tribunal had no jurisdiction to go into the issue of violation of section 25-F of the I.D. Act, should this Court interfere and quash the order.
74. Jurisdiction is the power and authority conferred by law upon a Court, Judge or the Tribunal to decide the disputes and make the judgments, orders authorised by law. There are, in general, three jurisdictional elements in every valid judgment, namely, the jurisdiction of the subject matter, of the person and of the authority to render the particular judgment. The absence of any of those elements would render the judgment void and a mere nullity.
75. In Roshan Deen vs. Preeti Lal, 2002 (SC) 33, the Supreme Court in para-12 observed as under;
" We are greatly disturbed by the insensitivity reflected in the impugned judgment rendered by the learned single Judge in a case where judicial mind would be tempted to utilize all possible legal measures to impart justice to a man mutilated so outrageously by his cruel destiny. The High Court non-suited him in exercise of a supervisory and extraordinary jurisdiction envisaged under Article 227 of the Constitution. Time and again this Court has reminded that the power conferred on the High Court under Article 226 and 227 of the Constitution is to advance justice and not to thwart it. {vide State of Uttar Pradesh vs. District Judge, Unnao and ors. (AIR 1984 SC 1401)}. The very purpose of such constitutional powers being conferred on the High Courts is that no man should Page 71 of 81 HC-NIC Page 71 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT be subjected to injustice by violating the law. The look out of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the by product of an erroneous view of law the High Court is not expected to erase such justice in the name of correcting the error of law."
76. In the case of Indra Narayan Kundu vs. Girindra Nath Mitra, AIR 1952 Calcutta 192, a Division Bench of the Calcutta High Court observed in para-5 as under;
"5. Mr. Chaudhary's argument is that the appellate judge in this case had no jurisdiction to hear his appeal because it was an appeal governed by the 1948 Act and the appellate judge was not a person who could hear the appeal. The appeals under the 1948 Act lay to the Chief Judge of the Court of Small Causes in the Presidency area who could transfer the appeals to persons who were notified by Government under sub-s.(2) of S.32 as person who could hear appeals. Under the 1950 Act the Chief Judge could transfer the case to any of the Judges of the Small Cause Court and that is what he did in this case. He transferred the case to one of the ordinary judges of the court. It may be that the appellate judge in this case had no jurisdiction to hear this case. But should we interfere under Article 227 of the Constitution ? It has been held that interference should be rare under that section and that the Court should only act in case where there would be a grave miscarriage of justice if the Court did not interfere."
77. In the case of Saurashtra Paper & Board Mills Pvt. Ltd., Rajkot vs. State of Gujarat, 1992 (2) GLR 871, a Division Bench of this Court held as under;
12. It is well settled principle of law that the remedy under Art. 226 of the Constitution of India is discretionary in nature and in a given case, even if some action or order challenged in the petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder, can refuse to upset it with a view Page 72 of 81 HC-NIC Page 72 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT to doing substantial justice between the parties.
13. In the case of Balvantrai Chimanlal Trivedi, Manager, Raipur Mfg. Co. Ltd., Ahmedabad v. M. N. Nagrashna & Ors., reported in AIR 1960 SC 407, certain employees of the appellant-Mill had made an application to the Authority under the Payment of Wages Act claiming that they were entitled to be paid according to a particular scale. The .Authority held that the folders were entitled to the scale, rejecting the objection of the appellant to its jurisdiction to entertain such application. The appellant then filed a writ petition, but that was summarily dismissed by the High Court. The appellant, therefore, appealed to the Hon'ble Supreme Court of India by special leave and contended that the Authority had no jurisdiction to entertain the application and also disputed its decision on merits. The Hon'ble Supreme Court of India found that the View of the Authority on merits was correct and as ragards the other contention, it was of the opinion that there was some. force in the contention regarding jurisdiction. Following the ratio laid down in the case of A. M. Allison v. E. l. Sen. AIR 1957 SC 227, the Hon' ble Supreme Court of India held that the justice of the case did not require any interference in the circumstances and reused to interfere with the order of the High Court dismissing the writ petition of the appellant even though it had intend that there was some force in the contention of the appellant regarding jurisdiction of the authority under the provisions of the Payment of Wages Act to entertain the application filed by the respondents therein.
14. In the case of Alang Marine Pvt. Ltd., Bhavnagar v. Gujarat Maritime Board & Ors., reported in 1991(2) GLR 1321, the appellant-Alang Marine Pvt. Ltd.. an unsuccessful tenderer for a job of construction and supply of steel hull Twin Self Propelled and self Hopper Grab Dredger for the port of Porbandar, had challenged the acceptance of the said tender by the respondents in favour of respondent No. 5 therein. The Division Beach has in an appeal held that the ultimate decision made in favour of the respondent No. 5 had not resulted in a material failure of justice and interference by the writ Court for infraction of any statutory provision or norms, if such infraction has not resulted in injustice, is not a matter of course. While dismissing the Appeal, it has Page 73 of 81 HC-NIC Page 73 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT been held as under :
"In this connection. reference may be made to the observation of the Hon'ble Supreme Court. in the case of A. M. Allison & Anr. v. B. L. Sen & Ors.., reported in AIR 1957 SC 227. The jurisdiction exercised by the writ Court is an equitable jurisdiction and if, ultimately, by the impugned decision, there has not been any material injustice, the writ Court may be well justified in refusing to interfere simply because there has been some infraction of law. In the facts and circumstances of the case, it appears to us that selection of respondent No. 5 for the contract in question is otherwise justified and even if the Board is directed to consider the cases of tenderers afresh on the basis of the materials before it and on critical evaluation of the tenderers, the Board can justly accept the tender of Respondent No. 5 for the reasons indicated earlier. It may be noted here that a public authority, in order to inspire confidence in its functioning for the public interest and to satisfy the public accountability, which it owes, must act fairly and reasonably and if on the score of public interest, a higher tender is accepted in preference to a lower tender, it should not only record reasons for such decision. but also communicate its decision to the concerned parties, Although it does not appear that the appellant was informed of the Board's decision to select respondent No. S, the reasons for such selection have been clearly indicated in the critical and comparative evaluation of technical competency. We, therefore, do not find any reason to strike down the decision made in favour of respondent No. 5."
We are in respectful agreement with the view expressed by the Division Bench to the effect that interference by the writ Court for mere infraction of any statutory provision or norms, if such infraction has not resulted in injustice, is not a matter of course. In the case of M/s. Shiv Shanker Dal Mills v. State of Haryana & Ors., AIR 1980 SC 1037, the dealers in that case had paid market fees at the increased rate of 3%, which was raised from the original 2 per cent under Haryana Act 22 of 1977. The excess of 1 per cent over the original rate was declared ultra vires by the Hon'ble Supreme Court of India in the case of Kewal Krishna Puri & Am. v. State of Punjab & Ors., AIR 1980 SC 1008. The excess of l per cent over the Page 74 of 81 HC-NIC Page 74 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT original rate having' been declared. ultra vires, became refundable to the respective dealers from whom they were recovered by the Market Committee concerned. The demand for refund of time excess amounts illegally recovered from them not having been complied with, the dealers filed Writ Petitions under .Art. 32 and .Art. 226 of the Constitution for a direction to that effect to the Market Committee concerned. The Market Committees contended that although the refund of the excess collections might be legally due to the dealers, many of them had in turn recovered this excess percentage from the next purchasers. While disposing of the petition and laying down guidelines, the Hon'ble Supreme Court of India has held as under:
"Article 226 grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury. It is perfectly open for the Court, exercising this flexible power, to pass such order as public interest dictates and equity projects. Courts of equity may and frequently do, go much further both to give and 'withhold relief in furtherance of the public interest than they are accustomed to go where only private interests are involved. Accordingly, the granting or withholding of relief may properly be dependent upon considerations as of public interest."
15. It has been rightly observed that legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations not to take it to the logical end, the High Court would be failing in its duty if it does not notice equitable considerations and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render the High Court a normal Court of Appeal, which it is not."
78. Thus, the principles discernable from the aforesaid decisions is that the power of superintendence given to the High Court under Article 227 of the Constitution is an extraordinary power and is meant to be used in grave and exceptional cases to prevent the miscarriage of justice. By this Page 75 of 81 HC-NIC Page 75 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT very nature it is discretionary and is not available to a litigant as of right and consequently the High Court should be loath to interfere in its supervisory jurisdiction if it finds that the ultimate decision, although without jurisdiction has led to substantial justice. To put it in other words, even in case of want of jurisdiction, it is not obligatory on the High Court to interfere in the exercise of its power of supervision under Article 227 of the Constitution, where such interference is not called for to prevent a grave miscarriage of justice and where the interference would have eventually no effect on the decision at all. The supervisory power conferred on the High Court by Article 227 of the Constitution of India are not greater than the powers under Article 226. They are meant to be utilized in cases where grave injustice has resulted and are to be used, generally, in keeping the subordinate courts and Tribunals within the bounds of their authority.
79. It is not in dispute that the respondents were appointed by the University as temporary employees and worked for a period of almost five years before their services came to be terminated. I take notice of the fact that the termination, after almost a period of five years, was oral. The University did not even deem fit to pass an order in writing much less giving any opportunity of hearing. The applicant- University has not disputed that the services of the respondents were terminated without passing any order in writing and contrary to the conditions of service as prescribed under the regulations framed by the University.
80. An order of termination of service passed orally is a highly arbitrary act on the part of the authorities. It is settled Page 76 of 81 HC-NIC Page 76 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT law that the right of livelihood is a fundamental right guaranteed under Article 21 of the Constitution of India. It is also settled law that in case the authorities passes an order affecting a persons civil right or right to livelihood, they have to act clearly and in a reasonable manner. The termination of the services of the employee by an oral order is a feudalistic approach and does not get sanctioned from our Constitution.
81. Even the services of the temporary government servant may be dispensed with in accordance with the provisions of the Industrial Disputes Act, 1947.
82. There is evidence on record to indicate that the respondents were working past more than four years with the University. An oral order or instructions passed by the authority terminating the services of an employee is arbitrary, unjust and improper act, and would be hit by Article 14 of the Constitution of India. The procedure to terminate the service by an oral order or instructions cannot be approved under our Constitutional frame and such practice is highly objectionable and deprecated in the strongest of the words.
83. The authorities are expected to adopt the recourse while taking such action in accordance with law or statutory provisions. Even if there is statutory provision, it shall always be necessary for the authority to pass a written order instead of acting in an autocratic way.
84. I am of the view that having regard to the facts of the case, instead of affirming the order passed by the Tribunal of reinstatement in service with back wages, the interest of Page 77 of 81 HC-NIC Page 77 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT justice will be subserved if the order of the Tribunal is modified to the extent by directing the payment of monetary compensation for the damages to the respondents.
85. My aforesaid view will be in tune with the decision of the Supreme Court in the case of Vice Chancellor, Lucknow University, Lucknow vs. Akhilesh Kumar Khare & Anr., 2016(1) SCC 521. I may quote the observations of the Supreme Court as under;
"15. The respondents were merely casual workers and they do not have any vested right to be regularised against the posts. The High Court fell in error in affirming the award passed by the Labour Court directing regularisation. In the facts and circumstances of the case, as the respondents were out of employment for more than twenty years and now they are over aged and cannot seek for regular appointment, in our view, the interest of justice will be subserved if the judgment of the High Court is modified to the extent by directing payment of monetary compensation for the damages to the respondents.
16. In considering the violation of Section 25F of the Industrial Disputes Act, 1947 in Incharge Officer & Anr. vs. Shankar Shetty (2010) 9 SCC 126 and after referring to the various decisions, this Court held that the relief by way of back wages is not automatic and compensation instead of reinstatement has been held to meet the ends of justice and it reads as under:-
"2. Should an order of reinstatement automatically follow in a case where the engagement of a daily wager has been brought to end in violation of Section 25-F of the Industrial Disputes Act, 1947 (for short "the ID Act")? The course of the decisions of this Court in recent years has been uniform on the above question.
3. In Jagbir Singh v. Haryana State Agriculture Mktg. Board, (2009) 15 SCC 327, delivering the judgment of this Court, one of us (R.M. Lodha, J.) noticed some of the recent decisions of this Court, namely, U.P. State Page 78 of 81 HC-NIC Page 78 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT Brassware Corpn. Ltd. v. Uday Narain Pandey, (2006) 1 SCC 479, Uttaranchal Forest Development Corpn. v. M.C. Joshi, (2007) 9 SCC 353, State of M.P. v. Lalit Kumar Verma (2007) 1 SCC 575, M.P. Admn. v. Tribhuban (2007) 9 SCC 748, Sita Ram v. Moti Lal Nehru Farmers Training Institute (2008) 5 SCC 75, Jaipur Development Authority v. Ramsahai (2006) 11 SCC 684, GDA v. Ashok Kumar (2008) 4 SCC 261 and Mahboob Deepak v. Nagar Panchayat, Gajraula (2008) 1 SCC 575 and stated as follows: (Jagbir Singh case (2009) 15 SCC 327, SCC pp.
330 & 335, paras 7 & 14) "7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.
***
14. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee."
4. Jagbir Singh (2009) 15 SCC 327 has been applied very recently in Telegraph Deptt. v. Santosh Kumar Seal (2010) 6 SCC 773, wherein this Court stated: (SCC p. 777, para 11) "11. In view of the aforesaid legal position and the fact Page 79 of 81 HC-NIC Page 79 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT that the workmen were engaged as daily wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would subserve the ends of justice."
17. In the light of the above discussion, the impugned judgment of the High Court is modified and keeping in view the fact that the respondents are facing hardship on account of pending litigation for more than two decades and the fact that some of the respondents are over aged and thus have lost the opportunity to get a job elsewhere, interest of justice would be met by directing the appellant-university to pay compensation of rupees four lakhs to each of the respondents. By order dated 11.07.2011, this Court directed the appellant to comply with the requirements of Section 17B of the Industrial Disputes Act, 1947 and it is stated that the same is being complied with. The appellant-university is directed to pay the respondents rupees four lakhs each within four months from the date of receipt of this judgment. The payment of rupees four lakhs shall be in addition to wages paid under Section 17B of the Industrial Disputes Act, 1947."
86. For the foregoing reasons, all the applications are allowed in part. The order passed by the Tribunal is modified to the extent that instead of reinstatement in service with back wages, the University is directed to pay the respondents Rs.4,00,000/- (Four Lacs only) each within four months from the date of the receipt of the writ of the order. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(J.B.PARDIWALA, J.) Page 80 of 81 HC-NIC Page 80 of 81 Created On Sat Oct 22 01:37:47 IST 2016 C/SCA/19245/2006 CAV JUDGMENT Vahid Page 81 of 81 HC-NIC Page 81 of 81 Created On Sat Oct 22 01:37:47 IST 2016