25 August 2004
Supreme Court
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B.S. BHARTI Vs I.B.P. COMPANY LTD.

Case number: C.A. No.-000682-000682 / 2001
Diary number: 2218 / 2000
Advocates: S. L. ANEJA Vs ARPUTHAM ARUNA AND CO


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CASE NO.: Appeal (civil)  682 of 2001

PETITIONER: B.S. Bharti                                                       

RESPONDENT: I.B.P. Company Limited                                   

DATE OF JUDGMENT: 25/08/2004

BENCH: N. Santosh Hegde, S.B. Sinha &  A.K. Mathur

JUDGMENT: J U D G M E N T

SANTOSH HEGDE, J.

This appeal arises out of the judgment of High Court of  Delhi made in RFA No. 23 of 1989 whereby  the High Court   allowed the  appeal filed by the respondent  herein and set aside   the judgment and decree  of the Trial Court  consequently  dismissing  the suit filed by the respondent herein. Brief facts  necessary for the disposal  of this appeal are as follows :-

Appellant herein was employed  by the respondent company   in the year 1971 in its I.B.P. Depot, Shakur Basti, Delhi as a Fitter  on daily basis. He continued to work  in that capacity till 23rd of  October, 1973  when the respondent  treated his appointment  as on  probation for a period of six months from 23rd of April, 1973.  At  the end of that period  the respondent extended  the period of  probation  for a further period of 3 months without confirming  his  appointment.  Being not satisfied  with the performance  of the  appellant,  on 24th of January, 1974  it terminated  the service of  the appellant. The appellant tried to raise  an industrial dispute   questioning  his termination  which was rejected by the  Government concerned. Hence,  he filed a suit  in the Court of Sub  Judge, Ist Class, Delhi  praying for a decree of Rs.  10,993.53/-  towards arrears of salaries  on the ground that his termination was  illegal, malafide, wrongful, without authority of law, without  jurisdiction  and being against  principles  of  natural justice and   for a declaration that he ought  to be continued   in employment   with full salary and allowances and bonus etc. The Trial Court   framed  the following issues :-

(1)     Whether  the plaintiff has no civil  rights enforceable   by a civil court as alleged  in preliminary objections of the  written statement ?   O.P.D.   

(2) Whether  the order of  termination  dated 24-1-1974 is  illegal, malafide, wrongful  and against  the principal of  natural justice, if so, its effect ?  O.P.P.

(3)     Whether  the plaintiff is entitled  to the amounts  claimed in the suit ? O.P.P.             

(4)      Relief.  

After trial, the  Trial Court decreed the suit  of the appellant.  Being aggrieved  by the judgment  and decree of the Trial Court   the respondent  herein preferred a Regular First Appeal before the  High Court of Delhi and by the impugned judgment the High

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Court following  a judgment  of this Court  in the case of   Rajasthan State Road Transport Corporation & Another  Vs.  Krishna Kant & Others.  (1995)  5 SCC 75    allowed the appeal, set  aside the judgment and decree of the Trial Court.  While doing so,   it held  that an amount of Rs.  10,993.53/-  which was paid  to the  plaintiff-appellant  at the time of admission of the appeal need not   be refunded  to the respondent therein, i.e. the appellant herein.  As  stated  above, it is against  the said judgment of the Appellate  Court  plaintiff-appellant  is before us.  

As noted by us hereinabove the prayer of the appellant to  refer  the dispute  to Industrial Tribunal/ Labour Court was refused  by the appropriate Government  on 1-1-1975. The appellant  has  not challenged that order  till date.  He filed a suit  in the year 1975  without making  an effort to get  his dispute settled  through the   provisions of the Industrial Employment  in (Standing orders) Act,  1946 which even according to him  was applicable  to him, and the  remedy  for which was  under the provisions  of the Industrial  Disputes Act which in term clearly prohibits  maintainability of a  civil suit.   This Court in the case  of Rajasthan State Road Transport  Corporation & Another  (supra)  after considering  various  judgments  rendered  earlier  in these questions  laid down the  principles  applicable  in regard to seeking  relief in labour disputes   which are as follows :-

"We may now summarise  the principles  flowing   from the above discussion :-

(1)     Where the dispute  arises  from general law  of contract, i.e.,  where  reliefs are claimed on the  basis  of the general law of contract, a suit  filed  in civil court cannot be said  to be not  maintainable, even though such a dispute  may  also constitute an "industrial dispute" within  the  meaning  of Section 2(k)  or Section 2-A of the  Industrial Disputes Act, 1947. (2)     Where, however, the dispute involves   recognition, observance  or enforcement  of any  of the rights or obligations created by the  Industrial  Disputes Act, the only remedy  is to  approach  the forums  created by the said Act.

(3)     Similarly, where the dispute involves  the  recognition, observance  or enforcement  of  rights and obligations created by enactments like  Industrial  Employment  (Standing Orders) Act,  1946 \026 which can  be called "sister enactments"   to Industrial Disputes Act \026 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   meaing  of Section 2 (k) and Section 2-A of  Industrial  Disputes Act or where such enactment   says that such dispute shall be  either  treated  as  an industrial dispute or says that  it shall be  adjudicated by any of  the forums created  by the  Industrial Disputes Act. Otherwise, recourse  to  civil court is open.

(4)     It is not correct to say that the remedies  provided  by the Industrial Disputes Act are not  equally effective for the reason that access to the  forum depends upon a reference being made  by

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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  Legislature  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\027in case of industrial disputes  covered by Section 2-A of the Industrial Disputes  Act.  This would go a long way in removing the  misgivings  with respect to the effectiveness  of  the remedies  provided by the Industrial Disputes  Act.  

(6)     The certified  Standing Orders framed under  and in accordance  with  the Industrial  Employment  (Standing Orders) Act, 1946 are   statutorily  imposed conditions of service and are   binding  both upon the employers  and  employees, though they do not amount to  "statutory  provisions". Any violation of these  Standing Orders entitles  an employee to  appropriate  relief either before the forums  created by the Industrial Disputes Act or the civil  court where  recourse  to civil court is open  according to the principle 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 reliefs as they think  appropriate in the circumstances for putting an  end to an industrial dispute".

The High Court considered these principles  laid down by  this Court  in Rajasthan State Road Transport Corporation &  Another  case (supra) and rightly came to the conclusion, the  principles  as laid down by this Court in paragraphs 2 and 3 clearly  apply to the facts of  the appellant’s case.  Hence, a civil suit  questioning  the termination of service and ancillary relief as  sought for in the suit filed by the appellant  herein was not  maintainable  and the only remedy was to approach the forum   created under the Industrial Disputes Act.  It is to be noticed that  the appellant did invoke the provisions of the Industrial Disputes  Act for getting the dispute referred to an appropriate forum under  the said act for an adjudication but he failed and he did not pursue  the remedy any further though such refusal could have been

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challenged by way of a writ petition. He having failed to do so he  cannot then resort to a remedy by way of a civil suit which is  otherwise not maintainable in law.     

We think the High Court was justified in coming to this  conclusion.  

However, the learned counsel for the appellant relied on  para 37 of the Rajasthan State Road Transport Corporation &  Another, wherein this Court  having held  that the civil court  had  no jurisdiction  in regard to a dispute pertaining to the workman  and management  which is otherwise covered by the Industrial  Disputes Act held thus :-

"It is directed that the principles  enunciated   in this judgment  shall apply to all pending  matters except  where decree have been   passed by the  trial court  and the matters are  pending  in appeal or second  appeal, as the  case may be.  All suits  pending in the trial  court shall be governed  by the principles   enunciated herein \026 as also the suits and  proceedings to be instituted hereinafter".

        Based on the above observations of the Court, the learned  counsel  submitted that the principle of relief  enunciated  in the  said paragraph of the judgment  of  this Court  ought to have been  extended to him and the relief  granted by the Trial Court ought to  have been affirmed. It is to be  noted in this context  this principle   does not apply  to cases wherein the efforts  of the workman  to get  the dispute referred to adjudication  to an appropriate forum  under  the Industrial Disputes Act has been rejected.  As stated above, in  cases where the application for reference under the provisions of  the Industrial Disputes Act has been rejected by the appropriate  authority, the aggrieved party should pursue the same by way of a  writ petition and if possible get the dispute referred under the  Industrial Disputes Act. If he fails to do so even after such attempt  or fails to make such an attempt, the directions issued in para 37 of  the above judgment in the case of Rajasthan State Road Transport  Corporation (supra) does not apply. In the said view of the matter, we find no reason to interfere  with the judgment of the High Court. This appeal fails and the  same is dismissed.