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PETITIONER: JITENDRA NATH BISWAS

       Vs.

RESPONDENT: EMPIRE OF INDIA & CEYLONE TEA CO. & ANR.

DATE OF JUDGMENT01/08/1989

BENCH: OZA, G.L. (J) BENCH: OZA, G.L. (J) SAIKIA, K.N. (J)

CITATION:  1990 AIR  255            1989 SCR  (3) 640  1989 SCC  (2) 582        JT 1989 (3)   310  1989 SCALE  (2)158

ACT:     Industrial   Disputes  Act,  1947:  Sections   2A,   10, 12(5)--Employee  whose services are terminated--Cannot  seek relief of reinstatement or backwages in a civil suit  before the Civil Court.

HEADNOTE:     The  appellant-plaintiff,  who was an  employee  of  the respondent  company, was dismissed from service on the  bais of a domestic enquiry held against him in respect of certain charges  of  misconduct. Thereupon, he filed  a  civil  suit before  the Court of Munsiff and sought the relief of  back- wages  and  injunction not to give effect to  the  order  of dismissal- The respondents in their written statement raised inter  alia the plea that the suit was not  maintainable  as the  relief  sought  was available to  the  plaintiff  under section  2A of the Industrial Disputes Act, 1947. The  Trial Court  came to the conclusion that the Civil Court  had  the jurisdiction  to try the suit. The High Court, in  revision, held  that the nature of the relief which was sought by  the appellant-plaintiff  was  such which could only  be  granted under  the Industrial Disputes Act, and therefore the  civil court had no jurisdiction to try the suit.      Before  this  Court it was contended on behalf  of  the appellant  (i) on the basis of the language of section 9  of the Code of Civil Procedure the civil court had jurisdiction to  try  all kinds of suits except those which  were  either expressly  or impliedly barred, and the High Court  was  not right  in  reaching  the conclusion that  it  was  impliedly barred; (ii) as the remedy under the Industrial Disputes Act was  discretionary,  it could not he said that there  was  a remedy  available to the appellant under the scheme  of  the Act  and thus the jurisdiction of the civil court could  not be barred by implication. On the other hand, it was contend- ed  on behalf of the respondents that (i) the relief  sought by  the appellant in substance was the relief of  reinstate- ment  with backwages which relief was available only in  the Industrial  Disputes Act; (ii) the Act itself  provided  the procedure and remedy and it was not open to the appellant to approach  the  civil court for getting the relief  which  he could  get only under the scheme of the Act; and  (iii)  the

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discretion of the Government to make a reference or not  was not arbitrary.          Dismissing the appeal, this Court. 641     HELD: (1) It is clear that wherever the jurisdiction  of the civil court was expressly or impliedly barred, the civil court will have no jurisdiction. [644B]     (2)  It is clear that except under 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  or  backwages.  At best, he  could  seek  the relief of damages for breach of contract.     (3)  The manner in which the relief has been  framed  by the appellant in this case, although he seeks a  declaration and injunction but in substance it is nothing but the relief of  reinstatement and backwages. This relief could  only  be available  to a workman under the Industrial  Disputes  Act. [644C-D]     (4) The discretion of the State Government for making  a reference under section 12(5) of the Industrial Disputes Act is not arbitrary and it would not be said that the reference to the labour court or tribunal is not available to a worker who raises an industrial dispute. [646G]     Bombay  Union  of  Journalists & Ors. v.  The  State  of Bombay  &  Anr., [1964] 6 SCR 22; Calcutta  Electric  Supply Corporation  Ltd.  v.  Ramratan Mahato, AIR  1973  Cal  258; Dhulabhai  etc. v. State of Madhya Pradesh, AIR 1969 SC  78; Nanoo  Asan Madhavan v. State of Kerala, [1970] Vol.  I  LLJ Kerala 272, referred to.     (5)  In  view of the language of section 10,  read  with section  12(5) of the Industrial Disputes Act,  an  adequate remedy  was available to the appellant under the  scheme  of the  Industrial Disputes Act itself which is the  Act  which provides for the relief of reinstatement and backwages which in  fact  the  appellant sought before the  civil  court  by filing a suit. [648B]     (6)  The scheme of the Industrial Disputes  Act  clearly excludes the jurisdiction of the civil court by  implication in respect of remedies which are available under the  Indus- trial  Disputes Act and for which a complete  procedure  and machinery has been provided in this Act. [649F-G]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1750  of 1974. 642     From the Judgment and Order dated 7.3.74 of the  Gauhati High Court in C.R. No. 96 of 1973.     A.R.  Barthakur, J.D. Jainand Mrs. Kawaljit  Kocher  for the Appellant.     P.H. Parekh, Ms. Geetanjali Mathrari, Shishir Sharma for the Respondents. The Judgment of the Court was delivered by     OZA, J. This appeal on leave has been filed against  the judgment of the Gauhati High Court delivered in Civil  Revi- sion  No.  96 of 1973 decided on March 7,  1974.  The  short question  that  arises in this appeal is in respect  of  the jurisdiction of the civil court to entertain a suit that was filed against the respondent defendant. The appellant plain- tiff was an employee of M/s Empire of India and Ceylone  Tea CO.  Pvt. Ltd Calcutta. The Manager of the COmpany  who  wag defendant No. 2, on 16.10.1971 served a notice on the appel- lant  plaintiff  asking him to explain  certain  charges  of

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misconduct.  In the course of domestic enquiry held  by  the management, the appellant plaintiff was ultimately dismissed from service on 28th November, 1971. According to the appel- lant plaintiff the order of dismissal is contrary to  provi- sions of the Standing Orders framed under Industrial Employ- ment  (Standing  Orders), Act, 1946 and on  this  ground  he sought the relief of declaration that the dismissal is  null and void and inoperative as he was not guilty of any miscon- duct  as no enquiry was conducted, the dismissal was bad  in accordance  with  the Standing Orders. He  also  sought  the relief  of back wages and injunction not to give  effect  to the order of dismissal. This suit was filed by the appellant plaintiff  before  the Court of Munsiff. The  defendant  re- spondent in their written statement raised the plea that the suit  is not maintainable as the relief which is  sought  is available to the appellant plaintiff under Section 2A of the Industrial Disputes Act, 1947. It was also pleaded that  the suit  is  not  maintainable under Section  14(1)(b)  of  the Specific  Relief Act and that the Civil Court has no  juris- diction to entertain the suit. The trial Court on the  basis of these pleadings framed two preliminary issues which were:                 (i) Whether the suit is maintainable in  the               present form?                 (ii) Whether this Court has jurisdiction  to               try the suit? The trial court came to the conclusion that the Civil  Court has the 643 jurisdiction  to  try the suit and the suit  is  not  barred because  of  Section 14(1)(b) of the  Specific  Relief  Act. Against  this order of the trial court a  revision  petition was taken to the High Court and by the impugned judgment the High  Court held that the nature of relief which was  sought by  the  appellant plaintiff was such which  could  only  be granted under the Industrial Disputes Act and therefore  the civil court had no jurisdiction to try the suit.     Learned  counsel for the appellant on the basis of  lan- guage of Section 9 of the Code of Civil Procedure  contended that the civil court will have jurisdiction to try all  kind of suits except those which are either expressly or implied- ly  barred and on this basis it was contended that there  is no  express bar on the jurisdiction of the Civil  Court  and the High Court was not right in reaching the conclusion that it  was  impliedly barred whereas learned  counsel  for  the respondent contended that the relief which was sought by the appellant  plaintiff  in substance was the relief  of  rein- statement  with back wages which relief is not the right  of the  appellant  plaintiff under the contract  or  under  the civil  law. This right is only conferred on him  because  of the  Industrial Disputes Act and the relief which is  avail- able  only  in the Industrial Disputes Act. The  Act  itself provides the procedure and remedy and it is not open to  the appellant to approach the Civil Court for getting the relief which he could only get under the scheme of the procedure of conciliation,  reference to the labour court and  ultimately decision  of the labour court. It was in the scheme  of  the Industrial  Disputes Act itself that the enforcement of  the Standing  Orders could be made and an order which is not  in accordance  with the Standing Orders could be set aside  and the  relief as was claimed by the appellant plaintiff  could be granted. It is in this view that the jurisdiction of  the civil  court  is impliedly barred.  Learned  counsel  placed reliance  on the decision of this Court in Bombay  Union  of Journalists  & Ors. v. The State of Bombay & Anr., [1964]  6 SCR 22.

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Section 9 of the Code of Civil Procedure reads:               "Courts   to  try  all  civil   suits   unless               barred--The  Courts  shall  (subject  to   the               provisions herein contained) have jurisdiction               to  try all suits of a civil nature  excepting               suits  of  which their  cognizance  is  either               expressly or impliedly barred.               Explanation (1)--A suit in which the right  to               property  or  to an office is contested  is  a               suit  of a civil nature, notwithstanding  that               such right may depend entirely on the               644               decision of questions as to religious rites or               ceremonies.               Explanation  II--For  the  purposes  of   this               Section  it is immaterial whether or  not  any               fees are attached to the office referred to in               Explanation I or whether or not such office is               attached to a particular place." It  is  clear that wherever the jurisdiction  of  the  civil court is expressly or impliedly barred, the civil court will have  no jurisdiction. It could not be disputed that a  con- tract  of employment for personal service could not be  spe- cifically  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 or backwages- 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  reinstate- ment and backwages. The relief which could only be available to a workman under the Industrial Disputes Act.     It  is not disputed before us that the  Industrial  Dis- putes Act was applicable to the present case and it is  also not  disputed that the Industrial Employment  (Standing  Or- ders)  Act  was also applicable. It is also not  in  dispute that  the enquiry for misconduct was conducted  against  the appellant  in  accordance with the Standing Orders  and  the main  plea which was raised by the appellant  plaintiff  was that  the  enquiry was not strictly in accordance  with  the Standing  Orders.  It is in this context  that  the  learned Judge  of  the High Court came to the  conclusion  that  the civil  court  will have no jurisdiction to try  the  present suit.     Learned  counsel appearing for the  appellant  plaintiff mainly  contended that in the scheme of the Industrial  Dis- putes  Act, the starting point for an industrial dispute  is the  conciliation proceedings and if the  conciliation  pro- ceedings  fail then the conciliation officer is expected  to submit his report to the Govt. as contemplated under Section 12 and thereafter it is the discretion of the Govt- to  make a reference to the labour court. He frankly conceded that if a  reference is made then the labour court will have  juris- diction to determine the dispute as was raised by the appel- lant  before  the civil court but according to  the  learned counsel as firstly it is the discretion of the  conciliation officer  to  proceed with the conciliation  proceedings  and even after the report of the conciliation officer, it is the discretion of 645 the  State Govt. to make a reference or not. Thus  it  could not  be said that there is a remedy available to the  appel- lant  under  the scheme of the Industrial Disputes  Act  and thus the jurisdiction of the civil court could not be barred

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by  implication.  Learned  counsel placed  reliance  on  the decision  in Calcutta Electric Supply Corporation  Ltd.  and another  v. Ramratan Mahato, AIR 1973 Calcutta 258.  Learned counsel  for the appellant also contended that the  decision in  Dhulabhai etc. v. State of Madhya Pradesh  and  another, AIR  1969 SC 78 also helps him to some extent. On the  other hand  the learned counsel for the respondent contended  that in view of decision in Bombay Union of Journalists case  the discretion  of the Govt. to make a reference or not  is  not arbitrary and in appropriate cases if the Govt. chooses  not to  make  a  reference, a direction could  be  issued  under Article 226 by the High Courts. It was contended that  after this  decision  of this Court, the  contention  that  remedy under the Industrial Disputes Act is merely discretionary is not at all available to the appellant. Learned counsel  also placed  reliance  on  the Dhulabhai’s case  and  Nanoo  Asan Madhavan  v. State of Kerala and others, [1970] Vol.  I  LLJ Kerala 272.     It  is not in dispute that the dispute which was  raised by  the  appellant plaintiff fell within the  ambit  of  the definition  of  ’industrial dispute’ as defined  in  Section 2(k)  of the Industrial Disputes Act. It is also no in  dis- pute that the dispute can be taken up by conciliation  offi- cer under Section 12. Section 12 of the Industrial  Disputes Act provides that when the conciliation officer fails he has to  make a report as provided in sub-clause (4)  of  Section 12. Section 12 reads:               "Duties  01’ Conciliation Officers--(1)  Where               any industrial dispute exists or is apprehend-               ed, the conciliation officer may, or where the               dispute  relates to a public  utility  service               and a notice under Section 22 has been  given,               shall,  hold conciliation proceedings  in  the               prescribed manner.                         (2) The conciliation officer  shall,               for the purpose of bringing about a settlement               of the dispute, without delay, investigate the               dispute  and all matters affecting the  merits               and  the right settlement thereof and  may  do               all  such  things  as he thinks  fit  for  the               purpose  of inducing the parties to come to  a               fair and amicable settlement of the dispute.                         (3)  If a settlement of the  dispute               or any of the matters in dispute is arrived at               in the course of the conciliation  proceedings               the conciliation officer shall send               646               a report thereof to the appropriate Government               (or  an officer authorised in this  behalf  by               the  appropriate Government) together  with  a               memorandum  of  the settlement signed  by  the               parties to the dispute.                         (4) If no such settlement is arrived               at, the conciliation officer shall, as soon as               practicable after the close of the  investiga-               tion,  send  to the appropriate  Government  a               full  report setting forth the steps taken  by               him  for  ascertaining the facts  and  circum-               stances relating to the dispute and for bring-               ing about a settlement thereof, together  with               a  full  statement of such facts  and  circum-               stances, and the reasons on account of  which,               in  his  opinion, a settlement  could  not  be               arrived at.                         (5) If, on a consideration 1 of  the

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             report  referred  to in sub-section  (4),  the               appropriate Government is satisfied that there               is  a  case for reference to a  Board  (Labour               Court, Tribunal or National Tribunal), it  may               make  such  reference. Where  the  appropriate               Government  does not make such a reference  it               shall  record and communicate to  the  parties               concerned its reasons therefore.                         (6)  A  report  under  this  Section               shall be submitted within fourteen days of the               commencement  of the conciliation  proceedings               or within such shorter period as may be  fixed               by the appropriate Government.                         Provided that subject to the approv-               al  of the conciliation officer, the time  for               the  submission of the report may be  extended               by such period as may be agreed upon m writing               by all the parties to the dispute." Sub-clause (5) provides for making a reference by the  State Govt.  to  a  labour court or an  appropriate  Tribunal.  In Bombay  Union of Journalists case it has been held that  the discretion of the Government is a discretion which has  been exercised not arbitrarily and therefore it could not be said that  the reference to the labour court or tribunal  is  not available  to a worker who raises in industrial dispute.  It was observed.               "This argument must be rejected, because  when               the   appropriate  Government  considers   the               question as to               647               whether  a reference should be made  under  s.               12(5), it has to act under s. 10(1) of the Act               and s. 10(1) confers discretion on the  appro-               priate Government either to refer the dispute,               or  not to refer it, for industrial  adjudica-               tion according as it is of the opinion that it               is expedient to do so or not. In other  words,               in  dealing  with  an  industrial  dispute  in               respect  of  which a failure report  has  been               submitted  under  s.  12(4)  the   appropriate               Government  ultimately  exercises  its   power               under’s. 10(1), subject to this that s.  12(5)               imposes an obligation on it to record  reasons               for not making the reference when the  dispute               has  gone through conciliation and  a  failure               report  has  been made under  s.  12(4).  This               question has been considered by this Court  in               the case of the State of Bombay v. K.P. Krish-               nan  & Others, [1961] 1 SCR 227. The  decision               in  that  case  clearly shows  that  when  the               appropriate Government considers the  question               as to whether any industrial dispute should be               referred  for  adjudication  or  not,  it  may               consider,  prima  facie,  the  merits  of  the               dispute  and take into account other  relevant               considerations  which would help it to  decide               whether making a reference would be  expedient               or  not.  It is true that if  the  dispute  in               question raise questions of law, the appropri-               ate  Government should not purport to reach  a               final  decision on the said questions of  law,               because  that  would normally lie  within  the               jurisdiction   of  the  Industrial   Tribunal.               Similarly, on disputed questions of fact,  the               appropriate Government cannot purport to reach

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             final conclusions, for that again would be the               province  of the Industrial Tribunal.  But  it               would not be possible to accept the plea  that               the  appropriate Government is precluded  from               considering even prima facie the merits of the               dispute  when  it decides the question  as  to               whether  its power to make a reference  should               be exercised under s. 10(1) read with s. 12(5)               or  not. If the claim made is patently  frivo-               lous,  or is clearly belated, the  appropriate               Government  may  refuse to make  a  reference.               Likewise,  if the impact of the claim  on  the               general relations between the employer and the               employees  in the region is likely to  be  ad-               verse,  the  appropriate Government  may  take               that into account in deciding whether a refer-               ence should be made or not. It must  therefore               be held that a prima facie examination of  the               merits  cannot  be said to be foreign  to  the               enquiry  which the appropriate  Government  is               entitled  to  make in dealing with  a  dispute               under s. 10(1), and so, the argument that the               648               appropriate Government exceeded its  jurisdic-               tion in expressing its prima facie view on the               nature of the termination of service of appel-               lants 2 and 3, cannot be accepted." It  is  therefore  clear that that in view  of  language  of Section 10 read with Section 12(5) as has been held by  this Court  an  adequate  remedy is available  to  the  appellant plaintiff  under the scheme of the Industrial  Disputes  Act itself  which  is the Act which provides for the  relief  of reinstatement  and  back wages which in fact  the  appellant sought  before the civil court by filing a suit. Section  10 of the Industrial Disputes Act reads:               "Reference  of disputes to Boards,  Courts  or               Tribunals  (1)--Where the appropriate  Govern-               ment  is  of the opinion that  any  industrial               dispute  exists or is apprehended, it  may  at               any time, by order in writing--                         (a) refer the dispute to a Board for               promoting a settlement thereof; or                         (b) refer any matter appearing to be               connected with or relevant to the dispute to a               Court for inquiry; or                         (c) refer the dispute or any  matter               appearing  to be connected with,  or  relevant               to,  the dispute, if it relates to any  matter               specified in the Second Schedule, to a  Labour               Court for adjudication; or                         (d) refer the dispute or any  matter               appearing  to be connected with,  or  relevant               to,  the  dispute, whether it relates  to  any               matter specified in the Second Schedule or the               Third  Schedule, to a Tribunal  for  adjudica-               tion:                         Provided  that  where  the   dispute               relates  to any matter specified in the  Third               Schedule  and  is not likely  to  affect  more               than-one hundred workmen, the appropriate Gov-               ernment  may,  if it so thinks fit,  make  the               reference to a Labour Court under clause (c);                         Provided  further  that  where   the               dispute  relates to a public  utility  service               and a notice under Section 22 has been  given,

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             the  appropriate Government shall,  unless  it               con-               649               siders that the notice has been frivolously or               vexatiously given or that it would be  inexpe-               dient  so to do, make a reference  under  this               sub-section  notwithstanding  that  any  other               proceedings  under this Act in respect of  the               dispute may have commenced:                        Provided also that where the  dispute               in relation to which the Central Government is               the appropriate Government, it shall be compe-               tent for that Government to refer the  dispute               to  a Labour Court or an Industrial  Tribunal,               as  the case may be, constituted by the  State               Government." It is therefore clear that this Act i.e. Industrial Disputes Act not only confers the right on a worker for reinstatement and  backwages if the order of termination or  dismissal  is not in accordance with the Standing Orders but also provides a detailed procedure and machinery for getting this  relief. Under  these  circumstances therefore there is  an  apparent implied exclusion of the jurisdiction of the civil court. In Dhulabhai’s  case a five-Judges Bench of this Court  consid- ered  the  language of Section 9 and the  scope  thereof  in respect of exclusion of jurisdiction and it was observed:               "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  in-               quiry 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  deter-               mined  by  the tribunals so  constituted,  and               whether  remedies  normally  associated   with               actions in civil courts are prescribed by  the               said statute or not." It  is  therefore clear that the scheme  of  the  Industrial Disputes Act clearly excludes the jurisdiction of the  civil court by implication in respect of remedies which are avail- able  under this Act and for which a complete procedure  and machinery has been provided in this Act.     Under  these  circumstances  therefore  so  far  as  the present suit filed by the appellant plaintiff is  concerned, there appears to be no doubt that civil court had no  juris- diction  and the High Court was fight in coming to the  con- clusion.  The appeal is therefore dismissed but as it is  an appeal  filed  by an employee who lost his  employment  long ago, parties are directed to bear their own costs. R.S.S.                                          Appeal  dis- missed. 650