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CASE NO.: Appeal (civil)  658 of 2008

PETITIONER: Chief Engineer, Hydel Project & Ors

RESPONDENT: Ravinder Nath & Ors

DATE OF JUDGMENT: 24/01/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No.18774 of 2005)V.S. SIRPURKAR, J

1.      Leave granted.

2.      Chief Engineer, Superintending Engineer (Construction Circle) and  Personnel Officer, Anandpur Sahib Hydel Project have filed this appeal to  question the correctness of the judgment of the Punjab and Haryana High  Court in Regular Second Appeal confirming the judgment passed by the  Additional District Judge, Ropar and Senior Sub Judge, Ropar, basically  on the ground that there was a complete lack of jurisdiction in the above  three Civil Courts since the issues squarely fall within the ambit of the  Industrial Disputes Act, 1947 and as such the remedy for the 9  respondents-workmen, who are workmen under the Industrial Disputes  Act, lies with the authorities thereunder and not with the Civil Court.   BASIC FACTS 3.      Nine respondents herein filed a Civil Suit before the Senior Sub  Judge, Ropar for the relief of (i) declaration to the effect that the orders of  their termination/retrenchment from service were illegal and (ii) that they  were entitled to reinstatement in service with back-wages.  It was pleaded  that the plaintiffs-respondents were skilled workers and were working on  the Anandpur Sahib Hydel Project (hereinafter called \023the Project\024) in  various capacities such as T. Mate, Mixer Operator, Beldar, etc. for more  than 5 years and, therefore, as per the Standing Orders and Rules they  were regular employees of the defendants.  It was alleged that the  defendants did not maintain any seniority-list of the workers and various  categories of services on the said Project and they arbitrarily removed the  plaintiffs-respondents from service on the dates mentioned in Annexure A  to the plaint by obtaining their signatures on papers under coercion and  force and also forced them to accept payments.  It was further alleged that  while removing the plaintiffs-respondent, the defendants-appellants did not  observe the seniority, meaning thereby while the juniors were retained in  service, the seniors were retrenched.  It was alleged that action was based  on pick and choose policy and was discriminatory and amounted to  victimization.  It was also alleged that those workers who had completed  service for 1000 days, could not have been retrenched (as was held by the  Punjab & Haryana High Court in Mehanga Ram v. Punjab State \026 Civil Writ  No.718 of 1986). 4.      This claim was contested by the State of Punjab.  It was firstly urged  that the suit was bad as common suit could not have been filed since the  cause of action of each defendant was distinct and separate.  It was urged  that the plaintiffs-respondents were appointed on purely temporary basis  as work-charged employees and after the completion of the project, their  services were validly terminated as per Rule 20(1) read with Rule 3(a) of  the Certified Standing Orders for the work-charged staff on the said  Project.  Since the termination was complete on payment of necessary  gratuity etc., there can be no cause of action and as such the present suit  was not maintainable in the present form.  It was also urged that notice  under Section 80 CPC was not given and the suit was also barred by

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limitation.  It was reiterated that the principle of first come last go was  strictly observed since there was a regular seniority-list maintained for the  Project as a whole and that there was no discrimination or victimization.   On merits also the suit was opposed on the ground that since the plaintiffs- respondent were work-charged employees for a work of temporary nature,  on completion of the project their services were terminated as per the  Rules which governed their service conditions (the Certified Standing  Orders).  The following issues were framed in between the parties by the  Court: \0231.  Whether the impugned orders of termination  retrenchment of the plaintiffs are illegal, unauthorized,  ultravires and ineffective as alleged? OPP 2.      Whether the suit is bad for misjoinder of parties? OPP 3.      Whether the suit is maintainable in the present form?  Opp 4.      Whether no valid notice u/s 80 CPC has been served  by the plaintiff on the defendants? OPP 5.      Whether the suit is within limitation? 6.      Whether the plaintiffs are entitled to the declaration and  injunction prayed for? OPP 7.      Relief.\024

5.      The Trial Court, on the basis of the evidence, came to the conclusion  that the defendants-appellants had not observed the principle of last come  first go in making the retrenchments.  The Trial Court also relied on the  judgment of the Punjab and Haryana High Court in Piara Singh & Ors. V.  State of Haryana[1989 PLR 396] and one another judgment, the copy of  which was filed Vide Exhibit D-13 wherein the High Court had given  directions that the workers so retrenched should be accommodated  somewhere-else in some other projects and such appointments in the new  projects would be treated as new appointments for the purpose of seniority  and that the relief given to such workers would be without prejudice to the  retrenchment and any other compensation that such workers would be  entitled to under the provisions of the Industrial Disputes Act, 1947.   Relying on these observations, the impugned orders of termination were  held illegal.  As regards issue regarding tenability of the suit, all that was  said by the Trial Court was that the Government Pleader could not point  out any defect in the form of the suit except that the plaintiffs had not  challenged any specified orders regarding the termination of their services.   (That is the only discussion in respect of the tenability).  Though it was held  that there was no evidence to hold that the persons junior to the plaintiffs- respondents were retained in service, there was no evidence on record to  show that as to what would be the position of the plaintiffs in overall  seniority-list when finalized vis-‘-vis the other employees who have been  retained or retrenched and, therefore, it was held that the plaintiffs were  entitled to declaration and mandatory injunction only to the extent that they  had right to be taken back in service and in case it was found that they  were entitled to be retained on the project on the basis of the seniority, they  would be entitled to be absorbed on other projects of the defendants  according to their qualifications and fitness within a period of six months  from the date of the judgment.  A curious relief was granted in the following  terms: \02317. In view of my foregoing findings, the suit of the plaintiffs  partly succeeds.  Accordingly, I pass a decree in favour of the  plaintiffs and against defendants no.1, 3 to 5 for declarations  to the effect that the plaintiffs are entitled to be taken back in  service.  However, in case it is found that by virtue of their  overall seniority in their respective categories of workers at  the time of their retrenchment, they were not entitled to be  retained on the APS Project, then they shall be absorbed in  other projects under the defendants within a period of six  months from the date of this judgment\005..\024

6.     This order of the Trial Court was appealed against by the  defendants-appellants before the Additional District Judge, Ropar which

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appeal was dismissed.  In its judgment the Appellate Court has referred to  the arguments advanced by the appellants relying on Rule 20(1) of the  Standing Orders governing the work-charged staff of the Project as also to  the contention raised on behalf of the plaintiffs-respondent that the  defendants-appellants had not violated principle of last come first go.  The  Appellate Court accepted that such principle was not strictly adhered to  and further held that the Anandpur Hydel Project was a \023State\024 and the  plaintiffs-respondents were entitled to the protection contained under the  Constitution of India and CSR which provided that the work-charged  employees could not be allowed to remain as such for more than six  months.  Relying on the decision of this Court reported in Supreme Court  of India v. Cynamide India Ltd. (AIR 1987 SC 1801) and Piara Singh v.  State of Haryana (1989 PLR (1) 396), the Appellate Court confirmed the  findings of the Trial Court and dismissed the appeal. 7.      The matter was taken before the High Court by way of a Second  Appeal on various grounds.  To begin with the High Court granted stay of  the operation of the orders passed by the courts below.  However, by the  subsequent order, the stay application was dismissed and the said order  granted on 20.12.1991 was vacated.  This came to be challenged by way  of a Special Leave Petition before this Court.  In the Special Leave Petition  a contention was raised by way of Ground (8) that the Civil Court had no  jurisdiction to entertain the suit since the relief of reinstatement in the  present case was available only under the Industrial Disputes Act.  This  Court, however, did not interfere at that stage and directed the High Court  to dispose of the Second Appeal as expeditiously as possible.  The High  Court dismissed the Second Appeal necessitating the present appeal  before us. CONTENTIONS 8.      Learned counsel appearing on behalf of the appellants urged that  since the issues squarely fell within the ambit of the Industrial Disputes Act,  1947 and since there is a specific remedy available to the plaintiffs- respondents under that Act, the jurisdiction of the Civil Court was impliedly  excluded and all the courts below erred in entertaining and deciding upon  the issues much less adverse to the appellants.  Learned counsel, relying  on this Court\022s judgments in The Premier Automobiles Ltd. & Ors. v.  Kamlekar Shantaram Wadke of Bombay & Ors. [(1976) 1 SCC 496],  Jitendra Nath Biswas v. M/s.Empire of India & Ceylone Tea Co. & Anr.  [(1989) 3 SCC 582]; Rajasthan State Road Transport Corporation &  Anr. v. Krishna Kant & Ors. [(1995) 5 SCC 74]; and Rajasthan State  Road Transport Corporation & Ors. v. Zakir Hussain [(2005) 7 SCC  447] urged that the legal position in this behalf was settled.  On the other  hand the learned counsel on behalf of the respondents urged that firstly  this issue relating to jurisdiction was not raised by the respondents before  any courts below and it is only for the first time that the objection to the  jurisdiction has been raised before this Court.  Learned counsel for the  respondents also urged that the issue was not covered under the labour  jurisprudence and under the provisions of the Industrial Disputes Act, 1947  and the jurisdiction of the Civil Court could not be said to be barred. DISCUSSIONS 9.      We would take into account the objection to the effect that the  contention regarding the jurisdiction was not raised and, therefore, it could  not be allowed to be raised at this late stage, for that it will have to be found  as to whether the issue regarding the reinstatement and the payment of  back-wages could be said to be covered under the provisions of Industrial  Disputes Act.  The question of the Civil Court\022s jurisdiction being excluded  came, for the first time, before this Court in The Premier Automobiles\022s  case (supra).  In that case the court culled out following four 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 senior  concerned to choose his remedy for the relief which is

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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 Section 33C or the  raising of an industrial dispute, as the case may be.\024

10.     The second decision came in Jitendra Nath Biswas\022s case  (supra), wherein this Court specifically held, interpreting Section 9 of  the CPC that the Civil Court shall have no jurisdiction where its  jurisdiction is expressly or impliedly barred.  The Court held:         \023It could not be disputed that a contract of employment  for personal service could not be specifically enforced  and it is also clear that except the industrial law, under  the law of contract and the civil law, an employee whose  services are terminated could not seek the relief of  reinstatement with back wages.  At best he could seek  the relief of damages for breach of contract.  The  manner in which the relief has been framed by the  appellant plaintiff in this case, although he seeks a  declaration and injunction but in substance it is nothing  but the relief of reinstatement and back wages.  The  relief could only be available to a workman under the  Industrial Disputes Act.\024

The Court, therefore, proceeded to hold that the civil court\022s jurisdiction  was barred.  In this case very peculiarly it was not disputed that the  Industrial Employment (Standing Orders) Act was also applicable to the  workman and an inquiry for misconduct was conducted against the  appellant in accordance with the standing orders.  It was argued before the  court, however, that since it was solely the discretion of the Conciliation  Officer to proceed with the conciliation proceedings and since even after  the report given by the Conciliation Officer it was the discretion of the State  Government to make a Reference or not, the civil court\022s jurisdiction was  not barred.  This Court repelled that contention after discussing the duties  of the Conciliation Officer and held that the civil court\022s jurisdiction was  barred. 11.     On its heels came the case of Krishana Kant (supra).  This was a  case where, pursuant to the disciplinary inquiry held against some of the  workers on charges of misconduct, their services were terminated.  The  suits were filed for a declaration that the orders terminating their services  were illegal and invalid and for further declaration that they must be  deemed to have continued and still continuing in the service of the  Corporation with all consequential benefits.  This Court elaborately  considered the law laid down earlier in the cases of  Premier  Automobiles\022s case and Jitendra Nath Biswas\022s (supra) and after  considering the concept of \023industrial dispute\024 as covered under Sections  2(k) and 2-A of Industrial Disputes Act, 1947 came to the conclusion that  the disputes not covered under Section 2(k) or 2-A could be determined by  Civil Court or by arbitration but disputes relating to right or obligation  created by the Industrial Disputes Act can be adjudicated only by the forum  created by the Industrial Disputes Act.  This was a case where the  Corporation was armed with the Certified Standing Orders.  The Court held  that the Certified Standing Orders are not in the nature of delegated or  subordinate legislation.  It was held that the Certified Standing Orders were  statutorily imposed conditions of service and the complaint made by the  workman relating to breach thereof could only be tried under the machinery  and the procedure provided by the Industrial Disputes Act and the civil  court\022s jurisdiction was impliedly barred to that extent.  The Court while  referring to the seven principles culled out by this Court in Dhulabhai v.  State of M.P. [(1968) 3 SCR 662: AIR 1969 SC 78] further explained the  decision in Premier Automobile (supra) to hold that not only the disputes

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under the Industrial Disputes Act were barred but the disputes arising out  of the sister enactments like Industrial Employment (Standing Orders) Act  also stood outside the jurisdiction of the civil court since they did not  provide a special forum of their own for enforcement of the rights and  liabilities created by them.  The Court, therefore, held: \023Thus a dispute involving the enforcement of the rights and  liabilities created by the certified standing orders has  necessarily got to be adjudicated only in the forums created  by the Industrial Disputes Act within the meaning of Sections  2(k) and 2-A of Industrial Disputes Act or such enactment  says that such dispute shall be either treated as an industrial  dispute or shall be adjudicated by any of the forums created  by the Industrial Disputes Act.  The civil court have no  jurisdiction to entertain such suits.\024

The Court further went on to say that the enforcement of the Industrial  Employment Standing Orders is an industrial dispute and if it satisfies the  requirement of Section 2(k) and/or Section 2-A of the Industries Disputes  Act, it must be adjudicated in the forums created by the Industrial Disputes  Act alone. 12.     Though there are number of other cases followed, we would choose  to consider the decision in Zakir Hussain\022s case (supra).  This case also  arose out of the termination simpliciter effected by the Corporation of the  conductor who was appointed on probation basis for a period of two years  and since his services were not found satisfactory, the same were  terminated, ofcourse with necessary compensation prescribed as per the  Rules of the Corporation.  The court after considering all the earlier cases  cited above and referring to the seven principles culled out in the case of  Krishan Kant, came to the conclusion as arrived at in Krishan Kant\022s  case.  Two other cases were referred to, they being B.S. Bharti v. IBP Co.  Ltd. [(2004) & SCC 550] and Chandrakant Tukaram Nikam v. Municipal  Corporation of Ahmedabad [(2002) 2 SCC 542].  It was held by the court  that the reliefs craved in the said cases squarely fell within the arena of  Industrial Disputes Act and, therefore, civil court\022s jurisdiction was clearly  barred.  On the question of the adhoc appointment of the employee, the  court came to the conclusion that the respondent was a probationer and  did not have any substantive right to hold the post and was not entitled to a  decree of declaration which was erroneously granted by the lower courts. 13.     Now coming to the facts of the present case, there is no dispute that  there are Certified Standing Orders in vogue.  The nine plaintiffs- respondents were engaged on work-charged basis till the completion of the  Project.  Their services came to be terminated after the completion of the  Project in January, 1985 as they were not required due to the completion of  the Project and since they were engaged temporarily.  It was pointed out  before us and not disputed that the services were terminated vide order  dated 6.7.1985 under Rule 20(1) read with Rule 3-A of the Certified  Standing Orders for work-charged staff.  It is also not disputed that they  were paid gratuity, retrenchment compensation as also the compensation  for notice and that they had duly accepted the order.  In the civil suit it was  prayed that a decree be passed for declaration to the effect that the orders  of termination/retrenchment of their service were null and void and that  they should be reinstated with back-wages.  A mandatory injunction to that  effect was sought for.  It was urged before the trial court that the  defendants-appellants have not maintained a proper seniority list and that  had resulted in the breach of the principle of last come first go and,  therefore, their termination was bad in law.  In short, the original plaintiffs- respondents had averred the breach of Section 25-G of the Industrial  Dispute Act, in that, they had alleged that the employer had shown  discriminatory attitude and the plaintiffs-respondents were picked and  chosen for being terminated and thus were victimized.  On the other hand  defence raised was that there were certain cut-off dates fixed for the  retention of the employees and all the plaintiffs-respondent had actually  joined the service after that cut-off date and, therefore, they were  terminated in terms of Rule 20(1) read with Rule 3-A of the Certified  Standing Orders relating to work-charged staff.  

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14.     From the above discussion there is no doubt that the dispute and the  main issue fell squarely under the premise of Industrial Disputes Act.   Further as specifically held in Krishna Kant\022s case that where the Certified  Standing Orders were applicable and where the breach thereof was  complained of, such issues fell in the exclusive area of the machinery  provided by the Industrial Disputes Act and as such the civil court\022s  jurisdiction was specifically barred.  We are left with no doubt that the  situation is identical in the present case.   15.     In the present case while the employers-appellants claimed that the  termination simpliciter was effected in the light of the Rules under the  Certified Standing Orders, the plaintiffs-respondents alleged that the  principles under the provisions of the Certified Standing Orders were  completely ignored and a highly arbitrary,  discriminatory approach was  adopted by the employer by picking and choosing the plaintiffs for the  purposes of termination.  The dispute, therefore, clearly fell outside the civil  court\022s jurisdiction as per the decisions of this Court relied upon earlier.   16.     However, the question is that this issue of jurisdiction was not raised  either before the before the First Appellate Court or the Second Appellate  Court.  Learned counsel for the respondents very vociferously argued  before us that for the reasons best known to the appellants, this objection  regarding the jurisdiction was never raised specifically.  We have seen the  written statement.  In the written statement the defendants-appellants have  raised a plea though not specifically but there is a clear reference to Rule  20(1) read with Rule 3-A of the Certified Standing Orders for the work- charged staff on the Project.  It is stated, which is apparent from the  judgment of the trial court that \023since the services of plaintiffs have already  been terminated on payment of necessary gratuity etc., they have no cause  of action and that the present suit is not maintainable in the present form  and is also not competent without notice under Section 80 CPC besides  being barred by limitation\024.  The tenability of the suit was, therefore, raised  and vide Issue No.3, the trial court also considered the tenability of the suit  in the present form.  The trial court has not, however, adverted to the  jurisdiction aspect as is being presently highlighted before us.  Same is the  story about the First Appellate Court and the Second Appellate Court.   However, it is not as if this issue was not raised altogether.  Atleast a notice  of this issue was given to the respondents in SLP (C) 11086 of 1992 which  was filed on behalf of the appellants to challenge the dismissal of the said  application by the High Court.  It is very specifically raised therein in  Ground No.8, which  is reproduced as under: \023Because the civil court had no jurisdiction to entertain the suit.   The relief of reinstatement in the present case was available  only under the Industrial Disputes Act and therefore the  jurisdiction of the Civil Court was expressly barred.  [(1991) 1  RSJ 770].  The declaration claimed by the plaintiffs in his suit  could be granted by the Labour Court under the Industrial  Disputes Act and consequential relief was also exclusively  outside the jurisdiction of the civil court.  The plaintiff  respondents are basing their case mainly on the provision of  Industrial Disputes Act, 1947 and thus the claim of the  plaintiffs/respondents could only be adjudicated by the Labour  Court.  The proposition of law is now well settled by repeated  pronouncement made by the Apex Court.\024

Therefore, it is not that the respondents herein had no notice of such an  objection.  This Court only directed the High Court to dispose of the appeal  before it expeditiously.  However, it does not seem that the question was  raised by the counsel of the appellants before the High Court in the present  form.  On the other hand the High Court has very specifically held that  there was no substantial question of law involved in the matter. 17.     In our considered opinion, it cannot be said that there was no  question of law involved as we have pointed out that the issues squarely  fell in the area covered by the Industrial Disputes Act and was, therefore,  specifically barred.  The question is whether this issue regarding the  jurisdiction could be allowed to be raised before us.  The question of  jurisdiction came up before this Court in Harshad Chiman Lal Modi v.

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DLF Universal Ltd. & Anr. [(2005) 7 SCC 791].  The Court therein was  considering the question raised whether the court had jurisdiction under  Section 16(d) CPC to deal with the matter in question.  In short the court  was considering whether the amendment could have been allowed raising  objection to the territorial jurisdiction.  This Court in para 30 observed as  under: \023We are unable to uphold the contention.  The jurisdiction of a  court may be classified into several categories.  The important  categories are (i) territorial or local jurisdiction; (ii) pecuniary  jurisdiction; and (iii) jurisdiction over the subject-matter.  So far  as territorial and pecuniary jurisdiction are concerned,  objection to such jurisdiction has to be taken at the earliest  possible opportunity and in any case at or before settlement of  issues.  The law is well settled on the point that if such  objection is not taken at the earliest, it cannot be allowed to be  taken at a subsequent stage.  Jurisdiction as to subject-matter,  however, is totally distinct and stands on a different footing.   Where a court has no jurisdiction over the subject-matter of the  suit by reason of any limitation imposed by statute, charter or  commission, it cannot take up the cause or matter.  An order  passed by a court having no jurisdiction is a nullity.\024

The Court then proceeded to rely on the case in Bahrein Petroleum Co.  Ltd. v. P.J. Pappu [(1966) 1 SCR 461:AIR1966 SC 634] and observed in  para 32 that neither consent nor waiver nor acquiescence can confer  jurisdiction upon a court, otherwise incompetent to try the suit.  The Court  further observed that\024 \023It is well settled and needs no authority that \021where a court  takes upon itself to exercise a jurisdiction it does not possess,  its decision amounts to nothing\022.  A decree passed by a court  having no jurisdiction is non est and its invalidity can be set up  whenever it is sought to be enforced as a foundation for a  right, even at the stage execution or in collateral proceedings.   A decree passed by a court without jurisdiction is a coram non  judice.\024

The Court also relied upon the decision in Kiran Singh v. Chaman Pawan  [(1955) 1 SCR 117: AIR 1954 SC 340] and quoted therefrom: \023It is a fundamental principle well established that a decree  passed by a court without jurisdiction is a nullity, and that its  invalidity could be set up whenever and wherever it is sought  to be enforced or relied upon, even at the stage of execution  and even in collateral proceedings.  A defect of  jurisdiction\005strikes at the very authority of the court to pass  any decree, and such a defect cannot be cured even by  consent of parties.\024

Though in the aforementioned decision these observations were made  since the defendants before raising the objection to the territorial  jurisdiction had admitted that the court had the jurisdiction, the force of this  decision cannot be ignored and it has to be held that such a decree would  continue to be a nullity. 18.     The aforementioned decision was followed again in Hasham Abbas  Sayyad v. Usman Abbas Sayyad & Ors. [(2007) 2 SCC 355] where one  of us, Sinha, J. was a party.  Ofcourse while following this decision the  Court referred to the decisions in Chief Justice of A.P. v. L.V.A. Dixitulu  [(1979 2 SCC 34]; Zila Sahakari Kendrya Bank Maryadit v. Shahjadi  Begum [(2006) 11 SCC 692] as also Shahabad Cooperative Sugar Mills  Ltd. v. Special Secretary to Govt. of Haryana [(2006) 12 SCC 404].   CONCLUSION 19.     Once the original decree itself has been held to be without  jurisdiction and hit by the doctrine of coram non judice, there would be no  question of upholding the same merely on the ground that the objection to  the jurisdiction was not taken at the initial, First Appellate or the Second  Appellate stage.  It must, therefore, be held that the civil court in this case

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had no jurisdiction to deal with the suit and resultantly the judgments of the  Trial Court, First Appellate Court and the Second Appellate Court are liable  to be set aside for that reason alone and the appeal is liable to be allowed.   In view of this verdict of ours, we have deliberately not chosen to go into  the other contentions raised on merits.  We, however, make it clear that we  have not, in any manner, commented upon the rights of the plaintiffs- respondents, if any, arising out of the Labour Jurisprudence. 20.     In the result the appeal is allowed but without any order as to costs.