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PETITIONER: PREMIER AUTOMOBILES LTD.

       Vs.

RESPONDENT: KAMLEKAR SHANTARAM WADKE OF BOMBAY & ORS.

DATE OF JUDGMENT26/08/1975

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. ALAGIRISWAMI, A. GOSWAMI, P.K.

CITATION:  1975 AIR 2238            1976 SCR  (1) 427  1976 SCC  (1) 496  CITATOR INFO :  F          1976 SC 425  (28)  R          1980 SC  16  (3)  RF         1980 SC2181  (104)  RF         1988 SC 752  (10)

ACT:      Industrial Disputes Act, 1947-S. 18(1)-Agreement under- Dispute between  employer and  employee in relation thereto- Whether could be decided by a Civil Court.      Jurisdiction  of   Civil  Court   in  relation   to  an industrial dispute-Principles.      Industrial Disputes,  Act, s.  10A-Suit for enforcement of arbitration-Jurisdiction of Civil Court to try.

HEADNOTE:      The  Industrial   Disputes  Act  was  enacted  to  make provision  for  the  investigation  and  settlement  of  the industrial   disputes.    The   Act   envisages   collective bargaining,  contracts   between  the  workers’  unions  and management and  the like which are matters outside the realm of the  common law  or the law of contracts. The Act defines an industrial  dispute and what the term "settlement" means. Different authorities  have been created at different levels for settlement  and  adjudication  of  industrial  disputes, conferring on  them varied  and extensive  powers.  Where  a dispute  between   the  workers  and  management  cannot  be resolved by  the conciliation  procedure envisaged under the Act, the  dispute is  referred by the Government to a Labour Court or  a Tribunal,  the award  of which becomes final and cannot be  called in  question by  any court  in any  manner whatsoever. Under  s.  18(1)  a  settlement  arrived  at  by agreement between  the employer  and workmen, otherwise than in the  course of  conciliation proceeding, shall be binding on the parties to the agreement.      In one  of the  departments of the appellant there were three groups  of workers:  One, the workers’ union which was earlier recognised  as a  "trade union, and was derecognised by the  appellant, and  secondly  another  union  which  was recognised in its place and thirdly workmen who were members of neither  union. As  a result of a settlement entered into with the derecognised union an incentive scheme was in force

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in this department of the appellant. After the derecognition of the union. because of the increase in the strength of the workmen it  became necessary  for the  company to revise the target  figures   of  the  incentive  scheme.  The  company, therefore,  entered   into  a   settlement  with  the  union recognised later. This led to protests from the derecognised union.  Respondents   1  and  2  who  were  members  of  the derecognised union,  instituted a  suit in  the Civil  Court under O.  I r.  8 of  the  Code  of  Civil  Procedure  in  a representative capacity alleging that the earlier settlement was a  contract of service and that the new settlement would bring about  a change  in their service conditions, that the new  settlement   was  arrived   at  without  following  the mandatory requirements  of s.  9A of the Act and have prayed for a  permanent injunction  to restrain  the appellant from implementing the  later settlement.  During  the  trial  the plaintiffs stated  that they  did not  wish to  enforce  the first agreement  as it would not be binding upon the workmen who were  the members of the derecognised union. This led to dropping the  issue relating to non-compliance with s. 9A of the Act also.      The trial  court held  that it  had jurisdiction to try the suit  as it was a suit of a civil nature for enforcement of rights  of common  and general law and consequently there was  no   question  of   reliefs  being  claimed  under  the Industrial Disputes  Act. Treating  the  incentive  payments made during  the years when the first agreement was in force as implied  terms of  conditions of  service and trial court granted a  conditional decree  of injunction. On appeal, the High Court  upheld the  view of  the trial court. On further appeal to  this Court  it was  contended by  the respondents that the  remedy provided  under the Industrial Disputes Act was a  misnomer in  that reference  of an industrial dispute for adjudication to a tribunal 428 would  depend   upon  the  exercise  of  the  power  by  the Government under  s. 10(1)  of the  Industrial Disputes Act. The Act did not confer any right on the suitor.      Allowing the appeal, ^      HELD :  The suit  for a decree for permanent injunction was not  maintainable in  the  civil  court  as  it  had  no jurisdiction to grant the relief or even a temporary relief. [448C-D]      (1) The  principles applicable  to the  jurisdiction of the civil  court in  relation to  an industrial dispute are, (i) 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; (ii) 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;  (iii) 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; (iv) 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 s.  33C or  the raising  of an industrial dispute, as the case may be. [446A-D]      Doe v.  Bridges (1831)  1 B.  & Ad.  847:  Pasmore  and others v.  The Oswaldtwistle  Urban District  Council (1898) Appeal Cases,  387; Cutler v. Wandsworth Stadium Ltd. (1949)

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Appeal Cases  398;  Wilverhamption  New  Waterworks  Co.  v. Hawkesford (1859)  6 C.B.  (N.S.)  336;  Naville  v.  London "Express", Newspaper  Ltd. (1919)  Appeal Cases 368; Peebles v. The Oswaldtwistle Urban District Council (1897) 1 Queen’s Bench, 625;  Barraclough v.  Brown and  others (1897) Appeal Cases, 615;  Solomons v. Gertzenstein Ltd. and others (1954) 2 Weekly  Law Reports, 823; Southwark London Borough Council v. Williams  and another  (1971) 1 Chancery, 734; Stevens v. Chown (1901)  1 Chancery,  894; Emperor  of Austria  v.  Day (1861) 3  D.F. &  J.  217,  253;  Carlton  Illustrators  and another v.  Coleman &  Company Limited (1911) 1 King’s Bench 771; PYX  Granite Co.  Ltd. v. Ministry of Housing and Local Government and  others (1960)  Appeal Cases  260; Duchess of Aroyll v.  Duke of Argyll and others (1967) 1 Chancery, 302; Polland v.  Photographic Company (1889) 40 Chancery Division 345.      State of  Bombay v.  K. P. Krishnan and others [1961] 1 S.C.R. 227  and Bombay  Union of  Journalists &  Ors. v. The State  of   Bombay  &   Anr.  [1964]  6  S.C.R.  22;  K.  S. Venkataraman &  Co. v.  State of Madras [1966] 2 S.C.R. 229; Secretary of  State Represented  by the  Collector of  South Arcot v.  Mask and  Company 67  Indian Appeals, 222; Raleigh Investment Coy.  Ltd. v.  Governor General  in  Council,  74 Indian Appeals  50; Firm and Illuri Subbayya Chetty and Sons v. The  State of  Andhra Pradesh  [1964] 1  S.C.R. 752; Firm Sethi Radha  Kishan (deceased represented by Hari Kishan and others v.  The Administrator,  Municipal Committee, Ludhiana [1964] 2  S.C.R. 273;  Bharat Kala Bhandar Ltd. v. Municipal Committee, Dhamangaon  [1965] 3 S.C.R. 499; Kamla Mills Ltd. v. State  of Bombay  [1966] 1  S.C.R. 64; State of Kerala v. Ramaswami Iyer & Sons [1966] 3 S.C.R. 582; Pab-bojan Tea Co. Ltd. etc.  v. The Deputy Commissioner, Lakhimpur etc. [1968] 1 S.C.R.  260; Dhulabhai  and others  v. The State of Madhya Pradesh and  another [1968]  3 S.C.R. 662 and Union of India v. A. V. Narasimhalu [1970] 2 S.C.R. 145. referred to.      (2) In  the present  case it  is clear  that  what  the plaintiff, respondents  wanted to prevent was the threatened breach of  their  right  which  flowed  from  the  agreement entered into between the derecognised union and the company. Such a  collective agreement  is recognised  and  creates  a right in  favour of  the members  of the Union only under s. 18(1) of  the Act and not under the general law of contract. Withdrawal of  the claim  based upon the said agreement from the trial  court had  no  effect  on  the  question  of  its jurisdiction to  try the  suit. In  so far  as the  suit was filed in  a representative capacity on behalf of the members of the derecognised 429 union by  two of  its members under O. I r. 8 of the Code it was clearly  a suit  in relation  to the  exercise of  right created under  the Act. In their case it was not permissible to fall  back upon  the alleged implied terms and conditions of service.  The source  of their  right was that agreement. Even the  workmen who  were not  members of the derecognised union but were given the benefit of incentive payments under the said agreement were so given because they tacitly agreed to be  bound by  the agreement. Even accepting that in their case it  had assumed  the character  of an  implied term  of contract of service, the alternative claim made in paragraph 8 of  the plaint  as being a condition of service otherwise, can be  referable to  the claim of the non-members only. The source of  their right  in that  event was  different and  a representative suit  on their  behalf by  the two plaintiffs could not  be maintained. The numerous persons must have the same interest  in one suit instituted under O. I r. 8 of the

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Code.  Persons  having  different  interests  cannot  be  so represented. The  better and more reasonable view therefore, is that all workmen represented by the two plaintiffs sought an order  of injunction  in the  civil court  to prevent  an injury which  was proposed  to be caused to them in relation to their right under the Act. [447E-H, 448AB]      (3) The  dispute could well be decided from all aspects in a  reference under  the Act. Although the issue as to the non-compliance with the requirements of s. 9A of the Act was dropped, the  trial court  seems  to  have  found  that  the proposed change  in the conditions of service was adverse to the interests  of the workmen. Whether it was so or not is a matter  of   debate.  But  it  is  apparent  that  both  the agreements could  not be simultaneously given effect to. The result of  the order  of injunction  made by the trial court was that  the workmen represented by the two plaintiffs were to get  incentive payments  in accordance  with  the  scheme embodied in  the earlier  agreement ignoring the addition to the strength  of the workmen. On the other hand, the members of the  recognised union  who had  entered into  the  second agreement were to get their incentive payments in accordance with that  agreement taking  into account  the  contribution made in the matter of production by the newly added workmen. This leads to an impracticable result. [448C-G]      (4) Section  41(a) of the Specific Relief Act says that an injunction  cannot be  granted to  prevent  breach  of  a contract the  performance of which would not be specifically enforced. Section  42 providing  an exception to this is not attracted  in  this  case.  Section  14(1)(c)  says  that  a contract which  is in  its  nature  determinable  cannot  be specifically enforced.  The contract in question embodied in the earlier  agreement was  in its nature determinable under s. 19(2)  of the  Act or  could be  varied by  following the procedure under  s. 9A.  The decree  or order  of injunction made therein, is not sustainable on this account too. [448H, 449AB]      (5) It  cannot be  said that  remedy provided under the Industrial  Disputes   Act  is   a  misnomer.  Reference  of industrial disputes  for adjudication  in  exercise  of  the power of  the Government under s. 10(1) is so common that it is difficult  to call  the remedy a misnomer or insufficient or inadequate for the purpose of enforcement of the right or liability created  under the Act. The enforcement of a right or an  obligation under  the Act,  the remedy  provided  uno flatu in  it is the exclusive remedy. The legislature in its wisdom did  not think  it fit  and proper  to provide a very easy and  smooth remedy  for enforcement  of the  rights and obligations created  under  the  Act.  Persons  wishing  the enjoyment of  such rights  and wanting  its enforcement must rest content  to secure  the remedy provided by the Act. The possibility that  the Government may not ultimately refer an industrial dispute  under s.  10 on the ground of expediency is not a relevant consideration in this regard. [439C-F]      (6) The  principle of  separate  remedy  only  for  the purpose of  injunction available  in a  court  of  Chancery, which was  kept intact even after the judicature Act of 1873 is not  applicable in  India. In  India, under  s. 9  C.P.C. courts have,  subject to  certain restrictions, jurisdiction to try  suits of civil nature excepting suits of which their cognizance is  either expressly  or impliedly  barred. If  a suit in  relation to  an industrial  dispute relates  to the enforcement of  a right  created under  the Act by necessary intendment, the  jurisdiction of  the civil court is barred. That being so. in India, it is barred for all purposes and a suit for in-

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430 junction only  would not  lie. The jurisdiction of the civil court in India to grant a relief of injunction is limited to cases in  which there  is a  right at law. that is to say, a right to be pursued in such court. [440C-H]      Krishnan and  another v.  East India  Distilleries  and Sugar Factories,  Ltd.  Nellikuppam  and  another  (1964)  1 Labour Law  Journal  217;  Madura  Mills  Company,  Ltd.  v. Guruvemmal and  another (1967)  2 Labour  Law  Journal  397; Nipnani Electricity  Company (P) Ltd. (by its director, V.R. Patravali) and  another v.  Bhimarao Laxman Patil and others (1969) 1  Labour Law  Journal 268;  The  Pigment  Lakes  and Chemical Manufacturing  Co. Private Ltd. v. Sitaram Kashiram Konde 71 Bombay Law Reporter 452, and Nanoo Asam Madhavan v. State of  Kerala and others (1970) 1 Labour Law Journal 272. referred to.      Bidyut Kumar  Chatterjee and others v. Commissioner for the Port  of Calcutta (1970) 2 Labour Law Journal, 148, over ruled.      (7) (a) The manner of voluntary reference of industrial disputes to  arbitration  is  provided  in  s.  10A  of  the Industrial Disputes Act. The reference to arbitration has to be on  the basis of a written agreement between the employer and the  workmen. As provided in s. 10A(5) of the Industrial Disputes Act,  nothing in  the Arbitration  Act, 1940  shall apply to arbitrations under s. 10A of the Act. [449H, 450A]      (b) Where  a written  agreement was executed, according to which  the parties  agreed to  refer a  dispute regarding dismissal of  certain workmen  to  a  Board  of  Arbitrators consisting of  three persons and the employer terminates the settlement under s. 19(2) of the Industrial Disputes Act and later withdraws its nominee from the Board of Arbitrators, a suit filed in a civil court by the employees challenging the action of  the employer  and for  direction to  restrain the employer from  committing a breach of the agreement and to a point its nominee in the place of the one who had withdrawn, such a  suit is  in relation  to the  enforcement of a right created under  the Act.  In such  a case the remedy in civil court is  barred. The  only remedy  available to the workmen concerned was the raising of an industrial dispute. [450BCD]      South Indian  Bank Ltd. v. A. R. Chacko [1964] 5 S.C.R. 625, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION : Civil Appeal No. 922 of 1973.      Appeal by  special leave  form the  judgment and  order dated the  13th and  15th, February, 1973 of the Bombay High Court in L.P.A. No. 74 of 1972. and      Civil Appeal No. 2317 of 1972.      Appeal by  special leave  from the  judgment and  order dated the  27th and  28th September, 1972 of the Bombay High Court in Civil Revision Application No. 451 of 1972.      In C. A. 922 of 1973.      S.D. Vimadalal,  A.K. Sen  and  I.N.  Shroff,  for  the appellant.      Sh.  Sorabji,  F.D.  Damania,  S.K.  Dholakia,  Subhash Oberai and R.C. Bhatia, for respondents Nos. 1-2.      F. S.  Nariman, P.  H.  Parekh  and  S.  Bhandare,  for respondents 3-6. 431      Rameshwar Nath, for Respondent/Intervenor.      In C. A. No. 2317/1972.

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    A. K. Sen and Rameshwar Nath, for the appellant.      Som Nath,  F.  D.  Damania  and  B.  R.  Agarwala,  for respondent Nos. 1 to 3.      The Judgment of the Court was delivered by      UNTWALIA, J.  These two  appeals filed by special leave of this  Court have been heard together because an important question of law as to the jurisdiction of the Civil Court to entertain the  suits of  the kinds filed in the two cases is common. Mr.  Vimadalal, learned  counsel for  the  appellant company in  Civil Appeal  No. 922  of 1973  followed by  Mr. Nariman, appearing for respondents 3 to 6 and Mr. A. K. Sen, learned counsel  for the  appellant company  in Civil Appeal No. 2317  of 1972  argued in  support of  the ouster  of the jurisdiction of  the Civil Court, Mr. Sorabjee, appearing on behalf of  the plaintiff  respondents  1  and  2  vehemently combated the  proposition. He  was followed  by Mr. Som Nath Iyer, learned  counsel for  the respondent  Union  in  Civil Appeal 2317 of  1972. We  shall proceed to state the facts of Civil Appeal  No.   922  of  1973  first,  discuss  the  point  of jurisdiction as  also the  other  points  involved  in  that appeal and  then briefly  refer to  the facts  of the  other case.      The appellant  company carries  on a  big industry  and owns several  plants. One  such plant  is situated at Kurla, Bombay. In  this plant  there is a department known as Motor Production Department. The dispute relates to the workmen of this department.  There seems  to be three groups of workmen in the.  department aforesaid.  One group was represented by Engineering Mazdoor Sabha-hereinafter called the Sabha Union which is  a registered Trade Union and was once a recognized union of the workmen of the appellant company. Respondents 1 and 2  who instituted the suit in question in the City Civil Court at  Bombay are  members of  this Union.  Later on  the Sabha Union  was derecognized  and’ another registered Trade Union  known   as  Association   of   Engineering   workers- hereinafter called  the Association  Union-was recognized by the appellant  company. This  Association Union,  respondent No, 3,  was implead as defendant No. 2 in the action. Beside the members  of these  two unions, there are certain workmen who are members of neither.      An incentive  scheme providing  for  certain  incentive payments to  the workmen  of the Motor Production Department was introduced  by the  appellant company  in  pursuance  of agreements entered from time to time between the company and the Sabha Union. The last of such agreement executed between them was  dated the  31st December, 1966. It appears that at the time  of the  execution of the last agreement there were 425  workmen   in  the   department.  Broadly  speaking  the incentive scheme  was to  make extra payments at the rate of 3.5% over  the basic production of 650 units upto the target of 900  on every  extra production  of 25  units.  In  other words, who workmen were to get 35% 432 more if  they produced  900 units  in a  month of 25 working days. The  next target  fixed was  1250 units payable at the rate of 4% per 25 units. In other words, the workmen were to get 35%  + 56% total 91% more if they reached the production target of  1250 per month. It further appears that after the recognition of  the Association  Union, 27  more persons who were previously  learners were taken in as regular temporary employees in the Motor Production Department on and from 1st September, 1970.  The strength of the workmen thus according to the  case of  the appellant  and respondent no. 3 went up from 425 to 452, naturally necessitating the revision of the

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norm and  target figures  of the incentive scheme. Some sort of arrangement  was arrived  at between  the company and the Association Union  which led to a protest by the Sabha Union in  October,  1970.  Eventually  a  definite  settlement  in writing was  arrived at between the appellant and respondent no. 3  on the  9th of  January, 1971  making the  settlement effective from  1-9-1970. The  norm figure  of 650 units was raised to  725 and  the first  and the second target figures were raised  from 900  to 975 and 1250 to 1325 respectively. The rates  of incentive  payment at 3.5% in the first target and 4%  in the second target were retained. Thus the maximum incentive  payment   of  91%  was  kept  unaltered.  Broadly speaking, therefore, the increase of 75 units at every stage of the  production was  attributable to  the addition of the strength of  27 workmen  in the Motor Production Department. The members  of the  Sabha Union, however, felt aggrieved by this, because,  they thought the 27 newly added workmen were merely learners and could not be eligible for being taken in the pool  of the incentive scheme. It would adversely affect the incentive payments which were to be made to the existing 425 workmen.  According to  the case  of respondents 1 and 2 they for  the first  time learnt  about the intention of the company to  bring about  a change  in the service conditions when the  altered scheme  was put on the Notice Board on the 15th March,  71. The two workmen who were the members of the Sabha Union  rushed to the court and instituted their plaint on the  8th April,  1971 in  the City  Civil Court at Bombay seeking the permission of the court to institute the suit in a representative  capacity under order I, Rule 8 of the Code of Civil  Procedure-hereinafter called the Code representing the workmen  who were  members of  the Sabha  Union as  also those who  were neither  its  members  nor  members  of  the Association Union. On an objection being raised consequently respondents 4  to 6  were added  as defendants  3 to   5  to represent the 27 disputed workmen.      Respondents 1 and 2 in their plaint chiefly based their claim  on  the  Memorandum  of  Settlement  dated  the  31st December, 1966  which on  being  acted  upon  had  become  a condition of  service not  only of  the members of the Sabha Union but  also of  others who  were not  its members. Their assertion was  that the  other settlement arrived at between the company and the Association Union under section 18(1) of the Industrial Disputes Act, 1947-hereinafter referred to as the Act,  was not  binding on those workmen who were not its members. They  attacked the  second agreement as having been arrived at  without following  the mandatory  requirement of section 9A  of the Act. The first relief claimed in the suit was that the settlement dated the 9th January, 1971 was 433 not binding on the plaintiff and other concerned daily rated and monthly rated workmen of the Motor Production Department who were  not members  of the  Association Union. The second relief was  to ask  for a  decree of  permanent injuction to restrain the  appellant from  enforcing or  implementing the terms of  the impugned  settlement dated  the  9th  January, 1971.  The   appellant  company   and  the  other  defendant respondents filed their written statements and contested the suit. They  asserted that  all  the  workmen  of  the  Motor Production Department  had impliedly accepted and acted upon the new  settlement. They challenged the jurisdiction of the Civil Court to entertain the suit in relation to the dispute which was an industrial dispute and further asserted that in any view  of the  matter no  decree for permanent injunction could be made.      The Trial  Court framed  several issues  for trial  but

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curiously enough  dropped many  issues as  not surviving  in view of the stand taken on behalf of the plaintiffs’ counsel at the  time of  the trial  of the  suit. It was conceded on their behalf,  and rightly too, that the agreement dated the 31st December,  1966 was a settlement under section 18(1) of the Act.  It could  be binding  only on  the members  of the Sabha Union  and not on others. But since the suit was filed on behalf  of the  non-members also  who were not members of either Union and in a representative capacity the main basis of the  suit being  the agreement  dated the  31st December, 1966 was  given up,  and it  was stated  on  behalf  of  the plaintiffs that they did not wish to enforce that agreement. Hence many  issues, according to the learned Trial Judge did not survive  for discussion and were dropped. One such issue was issue no. 7 in relation to the requirement of the notice under section  9A of the Act for effecting any change in the agreement  dated  the  31st  December,  1966.  Treating  the incentive payments  made on and from the year 1966 till 1970 as implied  terms of  conditions of service, the Trial Judge seems to  have  come  to  the  conclusion  that  the  change effected in January, 1971 was detrimental to and against the interests of  the workmen. Due to some technical reasons the first relief  of declaration  was not  granted. But  holding that the  court had jurisdiction to try the suit as it was a suit of  a "Civil nature for enforcement of rights of common and general law and consequently there is no question of the reliefs being claimed under the Industrial Disputes Act", it granted  a   sort  of   conditional  decree   of   injuction restraining the appellant from enforcing or implementing the terms of  agreement of  the 9th  January, 1971  against  the workmen of  its Motor  Production  Department  who  are  not members of  the Association  Union. The injunction, however, was not  to operate  in regard to any workmen who in writing accepted the  terms of  the impugned  agreement or after the appellant took  steps in  accordance with  law to  make  the agreement binding  on workmen  other than  those who are not members of  the Association Union. The decree for injunction was also  to cease to be operative if the appellant gave any notice of  change under section 9A of the Act on expiry of 3 months after  the expiry  of 21  days notice given under the said provisions of law.      The company filed an appeal in the Bombay High Court to challenge the  decision of the City Civil Court. The learned single  Judge  of  the  High  Court  who  heard  the  appeal following his decision in the Civil 434 Revision filed  by the  other company  which is appellant in the other  appeal, sustained  the jurisdiction  of the Civil Court to  entertain the  suit and  did not feel persuaded to interfere with  it on merits. The company took the matter in a letters  patent but it met the same fate before a Division Bench of  the High  Court. On  grant of  special leave,  the present appeal was filed.      The foremost  and perhaps the only point, undoubtedly a vexed one,  which falls  for our determination is whether on the facts  and in  the circumstances  of this case the Civil Court had  jurisdiction  to  entertain  the  suit  filed  by respondents 1  and 2 against the appellant and respondents 3 to 6.  Various English  and Indian authorities were cited on the point  on either  side at the Bar and we shall endeavour to answer  the question  of law on appreciation of many such authorities. It may not be necessary to refer to all. Before we do  so,  we  may  very  briefly  refer  to  the  relevant provisions of the Act.      The object of the Act, as its preamble indicates, is to

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make provision  for  the  investigation  and  settlement  of industrial  disputes,   which  means  adjudication  of  such disputes also.  The  Act  envisages  collective  bargaining, contracts between  Union representing  the workmen  and  the management, a  matter which  is outside  the  realm  of  the common law  or the  Indian law  of contract.  The expression "industrial dispute" is defined in section 2(k) to say that:           "  "industrial   dispute"  means  any  dispute  or      difference between  employers and employers, or between      employers and  workmen, or between workmen and workmen,      which  is   connected  with   the  employment  or  non-      employment or  the terms  of  employment  or  with  the      conditions of labour, of any person;" Section 2(p)  gives the  definition of the word "settlement" thus:           "settlement" means  a settlement arrived at in the      course  of   conciliation  proceeding  and  includes  a      written agreement  between  the  employer  and  workmen      arrived at otherwise than in the course of conciliation      proceeding where  such agreement has been signed by the      parties thereto in such manner as may be prescribed and      a copy  thereof has  been sent to an officer authorised      in this  behalf by  the appropriate  Government and the      conciliation officer;" Chapter II  provides for  the  authorities  under  the  Act, namely for  constitution of  the Works  Committee, Boards of Conciliation, Courts  of Inquiry,  Labour Courts,  Tribunals and  National   Tribunals  as   also  for   appointment   of Conciliation officers. Different kinds of authorities having very varied and extensive powers in the matter of settlement and  adjudication   of   industrial   disputes   have   been constituted. Since the time of the earliest decisions of the Federal Court  and the  Supreme Court  of India  it has been recognized fully  well that  the powers  of the  authorities deciding  industrial   disputes  under   the  Act  are  very extensive- 435 much  wider   than  the   power  of,  a  Civil  Court  while adjudicating a  dispute which  may be an industrial dispute. The labour  Courts and  the  Tribunals  to  whom  industrial disputes are  referred by  the appropriate governments under section 10 can create new contracts, lay down new industrial policy  for   industrial  peace,   order  reinstatement   of dismissed workmen  which ordinarily  a Civil Court could not do. The  procedure of  raising an  industrial dispute starts with the  submission of  a charter of demands by the workmen concerned. The Conciliation officer can be and is often made to intervene  in the  matter first.  He starts  conciliation proceeding under  section 12.  If a settlement is arrived at during the course of the conciliation proceeding, it becomes binding on  all workmen  under section  18(3) of the Act. If there  is   a  failure   of  conciliation,  the  appropriate government is  required to  make a  reference under  section 10(1) of  the Act.  The award  published under section 17(1) becomes final  and cannot be called in question by any court in any  manner whatsoever  as provided  in sub-section  (2). Section 18(1) of the Act says:           "A settlement  arrived at by agreement between the      employer and  workmen otherwise  than in  the course of      conciliation proceeding shall be binding on the parties      to the agreement." Section 19(2)  makes provision  for terminating a settlement and provides  that it  shall continue  to be  binding  until then.  Section   29  provides  for  penalty  for  breach  of settlement or  award. The  residuary punishing  section  for

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contravention of any provisions of the Act or the Rules made thereunder is  section  31(2).  The  conditions  of  service applicable to  workmen cannot  be changed to their prejudice in regard  to any  matter connected  with the dispute during the  pendency   of  any   conciliation  proceeding   or  any proceeding before  the  Labour  Court  or  the  Tribunal  as provided in  section 33(1)(a).  Section 33C(1)  provides for recovery of  money due  from an  employer. The scope of sub- section (2)  as to  the power  of the  Labour Court  for the purpose of  determination of  the amount  due is  much wider than the power of Government under sub-section (1).      It would  thus be seen that through the intervention of the appropriate  government, of  course not directly, a very extensive machinery  has been  provided for  settlement  and adjudication of  industrial disputes.  But since  individual aggrieved cannot  approach the  Tribunal or the Labour Court directly for  the  redress  of  his  grievance  without  the intervention of the Government, it is legitimate to take the view that  the remedy  provided under he Acts is not such as to completely  oust the  jurisdiction of the Civil Court for trial of  industrial disputes.  If the  dispute  is  not  an industrial dispute  within the  meaning of  section 2(K)  or within the  meaning of  section 2A of the Act, it is obvious that there is no provision for adjudication of such disputes under the  Act. Civil  Courts will  be the proper forum. But where the industrial dispute is for the purpose of enforcing any right,  obligation or liability under the general law or the common  law and  not a  right, obligation  or  liability created under  the Act,  then alternative  forums are  there giving an election to the suitor to choose his remedy of 436 either moving the machinery under the Act or to approach the Civil Court.  It is plain that he can’t have both. He has to choose the  one or  the other.  But we  shall presently show that the  Civil Court  will have  no jurisdiction to try and adjudicate  upon  an  industrial  dispute  if  it  concerned enforcement of certain right or liability created only under the Act. In that event Civil Court will have no jurisdiction even  to  grant  a  decree  of  injunction  to  prevent  the threatened injury  on account  of  the  alleged-  breach  of contract is  the contract  if one which is recognized by and enforceable under the Act alone.      In Dos  v. Bridges  (1) at  page 859 are the famous and oft quoted words of Lord Tenterden, C. J. saying:           "where an  Act creates  an obligation and enforces      the performance  in a specified manner, we take it to a      general rule that performance cannot be enforced in any      other manner".      This passage  was cited  with approval  by the  Earl of Halsbury, L.C.  in Pasmore  and others  v. The Oswaldtwistle Urban District  Council and  by Lord  Simonds at page 407 in the case  of  Cutler  v.  Wandsworth  Stadium  Ltd.  classic enunciation of  the law  and classification  of the cases in three classes  was done  by Willes,  J "with  the  precision which distinguished the utterances of that most accomplished lawyer, in  the case  of Wilerhamption New Waterworks Co. v. Hawkesford"(3A) (vide the speech of Viscount Haldane at page 391 in  the case  of Neville v. London "Express’, Newspaper, Ltd.) The classes are enumerated thus:           "There are  three classes  of  cases  in  which  a      liability may  be established by statute. There is that      class where  there is  a liability  existing at  common      law, and which is only re-enacted by the statute with a      special form  of  remedy;  there,  unless  the  statute      contains words  necessarily  excluding  the  common-law

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    remedy, the  plaintiff has  his election  of proceeding      either under  the statute  or at common law. Then there      is a  second class,  which consists  of those  cases in      which a  statute has created a liability, but has given      no special  remedy for it; there the party may adopt an      action of debt or other remedy at common law to enforce      it. The  third class  is where  the statute  creates  a      liability not  existing at common law, and gives also a      particular remedy  for enforcing it .. "With respect to      that class it has always been held, that the party must      adopt the form of remedy given by the statute."      The judgment  of the Court of Appeal which was affirmed by the  House of Lords in Pasmore’s case (supra) is reported in Peebles  v. The  Oswaldtwistle Urban District Council. It was pointed out 437 that the  duty of a local authority, under section 15 of the Public Health  Act, 1875  to make  such  sewers  as  may  be necessary for  effectually draining  their district  for the purposes of  the Act,  cannot be  enforced by  action for  a mandamus, the only remedy for neglect of the duty being that given by  s. 299  of the  Act  by  complaint  to  the  Local Government Board.  Lord Esher  M. R.  pointed out  that  the liability to  make sewers  was imposed by the statute. There was no  such liability before it. The case, therefore, comes within the canon of construction that if a new obligation is imposed by  statute. and  in the  same statute  a remedy  is provided for  nonfulfillment of  the obligation, that is the only remedy. Lopes, L.J. further succinctly pointed out that section 15  did not  create any  duty towards any particular individual, and  section 299 gives a specific remedy for the benefit of  the  locality  at  large.  Thus,  it  should  be noticed, that  the obligation imposed by the statute did not result in  creation of any right in favour of any particular individual. Earl of Halsbury, L.C. pointed out in his speech at page 394:           "The principle  that where  a specific  remedy  is      given by  a statute, 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."      The matter would be different if the obligation imposed under the statute brings into existence a right in favour of an individual  but provides  no remedy  for its enforcement. Supposing  after   providing   for   awarding   of   certain compensation in Chapter VA of the Act there was no provision made in  it like  section 10  or section 33C. the mere penal provision for  violation  of  the  obligation  engrafted  in section 29  or section  31 would not have been sufficient to oust the  jurisdiction of the Civil Court for enforcement of individual right created under Chapter VA.      The decision  of the  House of  Lords in  the  case  of Barraclough v. Brown and other(1) is very much to the point. The special  statute under  consideration there gave a right to recover  expenses in a court of Summary Jurisdiction from a person  who was not otherwise liable at common law. It was held that there was no right to come to the High Court for a declaration that  the applicant  had a  right to recover the expenses in  a court  of Summary Jurisdiction. He could take proceedings only  in the  latter court. Lord Herschell after referring to  the  right  conferred  under  the  statue  "to recover such  expenses from  the owner  of such  vessel in a court of summary Jurisdiction" said at page 620.           "I do not think the appellant can claim to recover      by virtue  of the  statute, and at the same time insist

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    upon doing  so by  means other than those prescribed by      the statute which alone confers the right." 438 Lord Watson said at page 622:           "The right and the remedy are given uno flatu, and      the one cannot be dissociated from the other."      In other  words if a statute confers a right and in the same breach  provides for  a remedy  for enforcement of such right the  remedy provided  by the  statute is  an exclusive one. But  as noticed by Lord Simonds in Cutler v. Wandsworth Stadium Ltd.  (supra) at  page 408  from the earlier English cases, the  scope and purpose of a statute and in particular for whose  benefit it  is intended has got to be considered. If a statute:           "intended  to  compel  mine  owners  to  make  due      provision for  the safety  of the  man working in their      mines, and  the persons  for whose  benefit  all  these      rules are  to be  enforced are  the persons  exposed to      danger," there arises at common law:      "a co-relative  right  in  those  persons  who  may  be      injured by its contravention."      Such a type of case was under consideration before Lord Goddard, C.J.  in the  case of  Solomons v.  R. Gertzenstain Ltd. and other vide page 831. Lord Denning M. R. relied upon the principles  enunciated  by  Lord  Tenterden  in  Doe  v. Bridges approved  in Pasmore’s  case (supra)  at page 743 in the case of Southwark London Borough Council v. Williams and another(2). The  celebrated and  learned Master of the Rolls said at page 743.           "Likewise  here   in   the   case   of   temporary      accommodation for  those in  need. It  cannot have been      intended by  Parliament that  every person  who was  in      need of  temporary accommodation  should be able to sue      the local authority for it: or to take the law into his      own hands for the purpose."      Mr. Sorabjee  endeavoured to  take his  case out of the well established and succinctly enunciated principles of law by the English courts on two grounds :-           (1)  That the  remedy provided under the Act is no                remedy in  the eye  of law. It is a misnomer.                Reference  to   the  Labour   Court   or   an                Industrial Tribunal  for adjudication  of the                Industrial dispute  was  dependant  upon  the                exercise of the power of the Government under                section 10(1), it did not confer any right on                the suitor.           (2)  Even if  the Civil  Court had no jurisdiction                to entertain  a suit  for  enforcement  of  a                right created under 439                the Act,  as in England, Courts in India also                could make  an order or decree for injunction                to prevent the threatened injury on breach of                the right.      We do not find much force in either of the contentions. It is  no doubt  true that the remedy provided under the Act under section  33C, on the facts and in the circumstances of this  case   involving  disputes  in  relation  to  the  two settlements  arrived  at  between  the  management  and  the workmen, was  not the  appropriate remedy.  It is  also true that it  was not  open to  the workmen concerned to approach the Labour  Court or  the Tribunal directly for adjudication of the  dispute.  It  is  further  well-established  on  the authorities of  this Court that the Government under certain

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circumstances even  on the  ground of expediency (vide State of Bombay  v. K.  P. Krishnan and others and Bombay Union of Journalists &  Ors. v. The State of Bombay & Anr. can refuse to make  a reference.  If the  refusal is not sustainable in law, appropriate  directions can be issued by the High Court in exercise of its writ jurisdiction. But it does not follow from all  this that  the remedy  provided under the Act is a misnomer Reference  of industrial  disputes for adjudication in exercise  of the  power of  the Government  under section 10(1) is so common that it is difficult to call the remedy a misnomer or  insufficient or  inadequate for  the purpose of enforcement of the right or liability created under the Act. The  remedy   suffers  from   some  handicap   but  is  well compensated on  the making  of the  reference  by  the  wide powers of  the Labour  Court or  the Tribunal.  The handicap leads only  to this  conclusion that  for adjudication of an industrial dispute  in connection with a right or obligation under the  general or  common law  and not created under the Act, the  remedy is  not exclusive.  It is  alternative. But surely for the enforcement of a right or an obligation under the Act the remedy provided uno flatu in it is the exclusive remedy. The  legislature in  its wisdom did not think it fit and proper  to provide  a very  easy and  smooth remedy  for enforcement of  the rights and obligations created under the Act. Persons  wishing  the  enjoyment  of  such  rights  and wanting its  enforcement must  rest content  to  secure  the remedy  provided  by  the  Act.  The  possibility  that  the Government may  not ultimately  refer an  industrial dispute under section  10 on  the ground  of  expediency  is  not  a relevant consideration in this regard.      Mr. Sorabjee very emphatically relied upon the judgment of Farwell. J. in the case of Stevens v. Chown in support of his submission  that even if a suit could not lie in a civil court for  enforcement of  the right,  still the  remedy  of injunction by a suit was not lost. The learned Judge at page 903 in  the first  instance pointed out that the case before him fell within the first of the three classes enumerated by Willes, J in the case of Wolverhemption (supra). On the true construction of  the Act  under consideration  it was opined that it had simply reenacted the old common law right to the market. But then 440 the learned  Judge proceeded  to say  at page  904 that  the remedy in chancery, as a separate remedy, was wider than the old common  law remedy.  Says the  learned Judge  further at page 904:           "In my  opinion, there  was nothing to prevent the      old Court  of Chancery  from granting  an injunction to      restrain the  infringement of a newly created statutory      right, unless  the Act of Parliament creating the right      provided a  remedy. which it enacted should be the only      remedy-subject only  to this  that the right so created      was such  a right  as  the  Court  under  its  original      jurisdiction would take cognizance of."      On a  close scrutiny, however, it would be noticed that the principle  of separate  remedy only  for the  purpose of injunction available  in a court of Chancery, which was kept intact  even  after  the  Judicature  Act  of  1873  is  not applicable in  India. Historically  the Chancery  Court  had assumed certain  special  jurisdiction  under  its  original jurisdiction to  take cognizance  of a special kind of right even  though   the  common  law  court  may  not  have  such jurisdiction In  India under  section 9  of  the  Code,  the Courts have subject to certain restrictions, jurisdiction to try suits  of civil  nature excepting  suits of  which their

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cognizance is  either expressly  or impliedly  barred. There are no  different systems of civil courts for enforcement of different kinds  of  rights.  In  the  instant  case  taking cognizance of  a suit  in relation  to an industrial dispute for the  enforcement of  any kind  of right is not expressly barred. But  if it  relates to  the enforcement  of a  right created  under   the  Act,  as  stated  above  by  necessary intendment, the  jurisdiction of the Civil Courts is barred. That being  so, in  India, it  is barred  for all  purposes, except in  regard  to  matters  which  will  be  alluded  to hereinafter. The position will be further clear on reference to the  quotation from  the decision  of Lord  Turner in the judgment of Farwell, J at pages 904 and 905 from the case of Emperor of  Austria v. Day(1). The great Master of Equity in relation to the remedy in the Chancery Court said:           "I do  not agree to the proposition, that there is      no remedy  in this  Court if there be no remedy at law,      and still  less do I agree to the proposition that this      Court is  bound to send a matter of this description to      be tried  at law ...... It is plain therefore, that, in      the opinion  of Lord  Redeedale, who  was pre-eminently      distinguished for  his knowledge  of the  principles of      this Court,  the  jurisdiction  of  the  Court  is  not      limited to cases in which there is a right at law."      It will bear repetition to say that the jurisdiction of the Civil  Court in India is limited to cases in which there is a  right at  law, that is to say a right to be pursued in such Court. 441      The distinction aforementioned also finds ample support from the  speech of  Lord Davey  in Barraclough v. Brown and others (supra).  At page  623 the noble and learned Lord has pointed out  that the power of the Court or Chancery to make declarations of  right without  giving consequential  relief was introduced  by section  50 of the Chancery Procedure Act 1852. After  some  decisions  of  the  English  courts  some additional words  were introduced  in order  to "enlarge the power of  the Court to make declarations in cases where from the nature  or the  circumstances of the case no substantive relief could be given by the Court." When we proceed to deal with certain  decisions of  the Privy  Council and  of  this Court in relation to a taxing statute it will be pointed out under what  circumstances an action in a Civil Court can lie to challenge the decisions of the taxing authorities. If the proposed action  of the  taxing authority is of a kind which when taken  would be  amenable to  be challenged  in a Civil Court the remedy for the relief of injunction to prevent the action would  also lie but not otherwise. As for example, in accordance with  the majority  decision of this Court in the case of  K. S.  Venkataraman & Co. v. State of Madras if tax is imposed  under a  provision of the statute which is ultra vires, the  imposition can  only be challenged by pursuing a remedy in  a Civil  Court or  in High  Court. Suppose a case where a  proceeding is initiated by issuance of a notice for imposing a  tax on  person under a provision of law which is ultra vires,  a suit for injunction would lie to prevent the threatened action.  But a  suit,  unlike  the  remedy  in  a Chancery Court,  merely for  the purpose of injunction would not lie  to prevent an action which when completed cannot be challenged in a Civil Court.      Reliance  was   placed  on  behalf  of  the  contesting respondents on  the case of Carlton Illustrators and another v. Coleman  & Company  Limited. This case merely illustrates the distinction  already made by us. Channell, J has said at page 782 :

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         "The plaintiff  also asks  for  an  injunction  to      prevent the  future  commission  of  breaches  of  this      statutory enactment.  It was  argued, though  not  very      strenuously, that  the only  remedy was the recovery of      the penalty.  I think  that this  case comes within the      rule that,  where there  is a  statutory  enactment  in      favour of  a person,  and there  is a  penalty for  the      breach of  the statutory  enactment which  goes to  the      person aggrieved,  in such  a case  the penalty  is the      only remedy  for the  breach. That  principle, however,      only applies  to remedies for the breach which has been      committed, and  an injunction  is not  a remedy for the      past breach,  but is  a means  for  preventing  further      breaches."      Reliance was  also placed  on behalf  of the contesting respondents on  the decision  of the  House of  Lords in PYX Granite Co. Ltd. v. Ministry of Housing and Local Government and others(3) but the 442 decision is  of no  help to  them. Viscount Simonds at pages 286 and 287 has said with reference to the Act of 1947 which was under  consideration  before  the  House  that  the  Act provides a  person with another remedy and then the question posed is-"Is it, then, an alternative or an exclusive remedy ?" Answer given is :           "There is  nothing in  the Act  to  suggest  that,      while a  new remedy,  perhaps cheap and expeditious, is      given, the  old  and,  as  we  like  to  call  it,  the      inalienable remedy  of Her  Majesty’s subjects  to seek      redress in  her courts is taken away. And it appears to      me that  the case  would be unarguable but for the fact      that  in   Barraclough  v.   Brown   (supra)   upon   a      consideration of  the statute there under review it was      held that  the new  statutory remedy was exclusive. But      that case differs vitally from the present case."      The well-known  distinction is  brought about  in these terms :           "The appellant  company are  given no new right of      quarrying by  the Act  of 1947. Their right is a common      law right  and the only question is how for it has been      taken away.  They do  not uno flatu claim under the Act      and seek a remedy elsewhere. On the contrary, they deny      that  they   come  within   its  purview   and  seek  a      declaration to  that effect.  There is,  in my opinion,      nothing in  Barraclough v.  Brown (supra)  which denies      them that remedy, if it is otherwise appropriate."      Mr. Sorabjee  cited the  case of  Duchess of  Argyll v. Duke of  Argyll and  others(1) to  strengthen  his  argument further in support of the dicta of Farwell, J in the case of Stevens v. Chown (supra). But we think the very relevant and pertinent distinction pointed out by us above has again been missed by  the learned  counsel. The special jurisdiction of the Court  of Chancery  is further  emphasised in  a passage quoted with  approval at  page 345  of the  report from  the judgment of  North, J in the case of Pollard v. Photographic Company(2). It  is worthwhile  to quote  a portion  of  that passage which reads thus :           "But it  is quite clear that, independently of any      question as  to the right at law, the Court of Chancery      always had  an original and independent jurisdiction to      prevent what  that court  considered and  treated as  a      wrong,  whether   arising  from   a  violation   of  an      unquestionable right  or from  breach  of  contract  or      confidence, as  was pointed  out by  Lord Cottanham  in      Prince Albert v. Strage-1 H. & T. 1".

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    Ungood Thomas, J has thereafter said at page 345 :           "But   these   were   cases   dealing   not   with      interlocutory injunctions  but with  final  injunctions      and it  was the  practice of  the Court  of Chancery to      exercise a jurisdiction, which 443      was not  limited to  the considerations governing final      injunctions, for  the purpose of granting interlocutory      injunctions pending the trial of a legal right."      No such  thing is  permissible in India. As far back as 1952 it  was pointed  out by  this Court  in the case of The State of  Orissa v.  Madan Gopal  Rungta and others that the High Court  cannot make a direction under Article 226 of the Constitution for the purpose of granting interim relief only pending the  institution of  a suit  merely because the suit could not  be instituted  until after  the expiry of 60 days from the date of a notice under section 80 of the Code. Much less it can be so done by a Civil Court.      Mr. Sorabjee  very strongly  relied upon the Full Bench decision of  the Lahore  High Court  in Municipal Committee, Montgomery  v.  Master  Sant  Singh(2)  in  support  of  the plaintiff-respondents’ right  to have an order of injunction in this  case. But  a passage occurring at page 380 column I negatives  his   contentions  and   squarely  supports   the distinction drawn by us above. The passage runs thus :      "If therefore  a demand  made by  a  Committee  is  not      authorised by  the Act  and the person affected thereby      objects to the payment on the ground that in making the      demand the  Committee was exercising a jurisdiction not      vested in it by law, it can, by no stretch of language,      be said  that he  is objecting  to his  liability to be      taxed under  the Act.  Any special piece of legislation      may provide  special remedies arising therefrom and may      debar a  subject from  having  recourse  to  any  other      remedies, but  that bar  will be  confined  to  matters      covered by  the legislation  and not  to any extraneous      matter."      We now  proceed to  consider the cases creating special liability,  mostly   tax  liability,   and   providing   for procedures and  remedies for  determination of the amount of tax and  relief against the assessment of such liability. In the well-known decision of the Privy Council in Secretary of State, Represented  by the  Collector of South Arcot v. Mask and Company(3)  Lord Thankerton  delivering the  judgment of the Board alluded to the third class of cases to be found in the judgment of Willes, J in Wolverhampton’s case. The order of the  Collector of  Customs passed  on  the  appeal  under section 188  of the  Sea Customs Act, 1878 was held to be an order  within   his  exclusive  jurisdiction  excluding  the jurisdiction of  the Court  to challenge it. The other well- known decision  of the  Privy Council is the case of Raleigh Investment Coy.  Ltd. v.  Governor General  in Council. Both the decisions  aforesaid were  noticed by Gajendragadkar. J. as he  then was,  delivering the  judgment on  behalf of the Constitution Bench of this Court in Firm and Illuri Subbayya Chetty and  Sons v. The State of Andhra Pradesh. At page 763 the circumstances under which the decision 444 of the  taxing authority  under the Madras General Sales Tax Act, 1939  could be challenged in a Civil Court were pointed out in these terms :      Non-compliance with  the provisions  of the  statute to      which reference  is made  by the Privy Council must, we      think,  be   non-compliance   with   such   fundamental      provisions of  the statute  as would  make  the  entire

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    proceedings before  the appropriate  authority  illegal      and without  jurisdiction. Similarly, if an appropriate      authority has  acted in  violation of  the  fundamental      principles of judicial procedure, that may also tend to      make  the   proceedings  illegal   and  void  and  this      infirmity may  affect the  validity of the order passed      by the  authority in  question. It  is  cases  of  this      character where  the defect  or the  infirmity  in  the      order goes to the root of the order and makes it in law      invalid and void that these observations may perhaps be      invoked in support of the plea that the civil court can      exercise its  jurisdiction notwithstanding  a provision      to the  contrary contained  in the relevant statute. In      what cases  such a plea would succeed it is unnecessary      for us  to decide in the present appeal because we have      no doubt  that the  contention of the appellant that on      the merits  the decision of the assessing authority was      wrong, cannot  be the  subject-matter of a suit because      s. 18-A clearly bars such a claim in the civil courts." It would  be noticed on appreciation of the above dicta that the issue  to be  tried in  the suit  instituted in  a civil court to challenge the decision of the taxing authorities is quite distinct  and different  from the  one which is within their  exclusive   jurisdiction.  The   issues  in  the  two proceedings are  different and exclusive in their respective spheres. Many  authorities were  reviewed by Subba Rao, J as he  then  was,  in  the  case  of  Firm  Seth  Radha  Kishan (deceased) represented  by Hari  Kishan and  others  v.  The Administrator, Municipal  Committee, Ludhiana  including the principles enunciated  by Willes, J in Wolverhampton’s case. The decision  of the  Full Bench  of the  Lahore High  Court (supra)  was   also  referred,   and  the   final  principle enunciated is to be found at page 284 in these terms :      "Under s.  9 of  the Code  of Civil Procedure the Court      shall have  jurisdiction to  try  all  suits  of  civil      nature excepting  suits of  which cognizance  is either      expressly or  impliedly barred.  A statute,  therefore,      expressly or  by necessary  implication,  can  bar  the      jurisdiction of civil Courts in respect of a particular      matter. The  mere conferment of special jurisdiction on      a tribunal  in respect  of the  said matter does not in      itself exclude  the jurisdiction  of civil  Courts. The      statute  may   specifically  provide  for  ousting  the      jurisdiction of civil Courts; even if there was no such      specific exclusion,  if  it  creates  a  liability  not      existing before  and gives  a  special  and  particular      remedy for  the aggrieved party, the remedy provided by      it must be followed. The same principle would 445      apply if  the statute  had provided  for the particular      forum in  which the  said remedy  could be had. Even in      such cases,  the  Civil  Court’s  jurisdiction  is  not      completely ousted.  A suit in a civil court will always      lie to  question the  order of  a tribunal created by a      statute,  even   if  its  order  is,  expressly  or  by      necessary implication, made final, if the said tribunal      abuses its  power or  does not act under the Act but in      violation of its provisions."      The  principles   aforesaid  were   reiterated  in  the decision of  this Court  in  Bharat  Kala  Bhandar  Ltd.  v. Municipal Committee, Dhamangaon albeit the learned Judges by 3 :  2 differed  in the  application of the principle to the facts of the case.      The unanimous  decision of  a Bench of 7 Judges of this Court was  given by  Gajendragadkar, C.J.  in  the  case  of

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Kamala Mills  Ltd. v.  State of  Bombay. The decision of the House of  Lords in  the case of PYX Granite Co. Ltd. (supra) was referred  to at page 81 after referring to the decisions of the  Privy Council  in the  case of  Mask &  Co. and  the principles were  reiterated at  page 82.  A doubt  which was being cast in the full application of the ratio of the Privy Council in  Raleigh Investment Co.’s case was crystalised in the majority  decision of  Subba Rao, J in the case of K. S. Venkataraman &  Co. v. State of Madras (supra). The minority decision of  Shah, J  was to the contrary. The majority view made a departure from the dicta of the Privy Council in case of a  challenge to  assessment of tax made under ultra vires provisions of  the law.  The decision of this Court in State of Kerala  v. Ramaswami  Iyer &  Sons is again in connection with the challenge to sales tax assessment by institution of a suit  in civil court. Mitter, J reviewed many decisions of this Court  in the  case of Pabbojan Tea Co. Ltd. etc v. The Deputy Commissioner,  Lakhimpur etc.-a case arising out of a challenge to  the orders  of the authority under the Minimum Wages Act.  Sub-section 6  of section 20 of the Act was held not to  exclude the jurisdiction of the Civil Court when the order of  the authority  is challenged on the ground of non- applicability of  the Act  to a  certain class  of  workers. Hidayatullah, C.  J. delivering  the judgment  on behalf  of Constitution Bench  of this Court took pains to discuss many authorities in the case of Dhulabhai and others v. The State of Madhya  Pradesh and  another, called  out as  many  as  7 propositions of law at pages 682 and 683. But the principles enunciated were relevant to find out the jurisdiction of the Civil Court  and its scope to challenge the assessments made under a  taxing statute.  Nothing contrary  to what  we have said above  is to  be found  in  any  of  the  7  principles enunciated by  the learned  Chief Justice. The case of Union of India  v. A.  V.  Narasimhalu  was  again  in  regard  to exclusion of  jurisdiction of  the civil  court in a suit to challenge an order under section 188 of the Sea Customs Act, 1878. 446      To  sum   up,  the   principles   applicable   to   the jurisdiction of the Civil Court in relation to an industrial dispute may be stated thus :           (1)  If the  dispute is not an industrial dispute,                nor does  it relate  to  enforcement  of  any                other right  under the  Act the  remedy  lies                only in the civil court.           (2)  If  the  dispute  is  an  industrial  dispute                arising out of a right or liability under the                general or  common law and not under the Act,                the  jurisdiction   of  the  Civil  Court  is                alternative, leaving  it to  the election  of                the suitor concerned to choose his remedy for                the relief  which is  competent to be granted                in 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.      We may,  however, in  relation to  principle  2  stated

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above hasten  to add  that there  will hardly  be a  dispute which will  be an  industrial dispute  within the meaning of section 2(k) of the Act and yet will be one arising out of a right or  liability under the general or common law only and not under  the Act.  Such a  contingency, for  example,  may arise in  regard to  the dismissal of an unsponsored workman which in  view of  the provision of law contained in Section 2A of  the Act  will be an industrial dispute even though it may  otherwise  be  an  individual  dispute.  Civil  Courts, therefore, will  have hardly  an occasion  to deal  with the type of cases falling under principle 2. Cases of industrial disputes by  and large,  almost invariably,  are bound to be convered by principle 3 stated above.      Some of the decisions of the High Courts in India cited at the  Bar may  now be  briefly noticed.  They fell  in one category or  the other  and have  expressed divergent views. Those  which  have  taken  any  view  contrary  to  the  one expressed by us above must be deemed to have been over-ruled in that  regard and those falling in line with our views are being affirmed.      In the  case of  Krishnan and  another  v.  East  India Distilleries and  Sugar  Factories,  Ltd.  Nellikuppam,  and another(1), the  learned single  Judge of  the  Madras  High Court has  held that  the jurisdiction of the Civil Court is ousted impliedly  to try  a case  which could  form  subject matter of  an industrial  dispute collectively  between  the workmen and their employer. One of us (Alagiriswami, J) as a Judge of  the Madras  High Court in the case of Madura Mills Company, Ltd. v. Guruvammal 447 and another  has pointed  out that the Act creates a special machinery under  section 33C(2) to enforce specially created rights. The  parties  could  not,  therefore,  approach  the ordinary civil  court. We affirm the aforesaid two decisions of the  Madras High Court. A single Judge of the Mysore High Court took  the same view in the case of Nippani Electricity Company (Private)  Ltd, (by  its director,  V. R. Patravali) and another  v. Bhimarao Laxman Patil and others and a Bench of the  Bombay High  Court in The Pigment Lakes and Chemical Manufacturing Co.  Private Ltd.  v. Sitaram  Kashiram  Konde held that  the jurisdiction  of the civil court to deal with matters mentioned  in Chapter  VA read with schedules 2 to 4 to  the   Act  is  impliedly  barred.  Similar  opinion  was expressed by a learned single Judge of the Kerala High Court in the  case of  Nanoo Asan  Madhavan v. State of Kerala and others. A  learned single  Judge of  the Calcutta High Court seems to have taken a somewhat different view in the case of Bidyut Kumar  Chatterjee and others v. Commissioners for the Port of Calcutta. The ratio of the case in so far as it goes against the  principles enunciated  by us is not correct. We approve what  has been  said by a Bench of the Calcutta High Court in  the case  of M/s  Austin Distributors Pvt. Ltd. v. Nil Kumar  Das that  a suit  for  recovery  of  damages  for wrongful  dismissal,   on  the  grounds  which  are  clearly entertainable in  Civil Court,  would lie in that court even though a special remedy is provided in the Act in respect of that matter.  This would  be so  on  the  footing  that  the dismissal was  in  violation  of  the  contract  of  service recognized under  the general  law. More or less to the same effect is  the view  taken by  a learned single Judge of the Mysore High  Court in  the case of Syndicate Bank v. Vincent Robert Lobo. It is not necessary to refer to some unreported decisions of  the Bombay  High Court  taking one view or the other.      Applying the  principles aforementioned to the facts of

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the instant  case, it  is clear  that  what  the  plaintiff- respondents wanted  to prevent was, by and large, threatened breach of  their right which flowed from the agreement dated the 31st December, 1966 entered into between the Sabha Union and the  Company. Such  a collective agreement is recognized and creates  a right  in favour  of the members of the Union only under  section 18(1)  of the  Act  and  not  under  the general law  of contract. Withdrawal of the claim based upon the said  agreement by  their learned  counsel in  the Trial Court had  no effect  on the question of its jurisdiction to try the  suit. In  so  far  as  the  suit  was  filed  in  a representative capacity  on behalf  of the  members  of  the Sabha. Union  by two of its members under Order I, Rule 8 of the Code  it was  clearly a suit in relation to the exercise of right  created under  the Act.  In their  case it was not permissible to  fall back  upon the  allegedly implied terms and conditions of service. The source of their right was the agreement entered  from time  to time under section 18(1) of the Act 448 culminating in  the agreement dated the 31st December, 1966. It is  reasonable to take the view that even the workmen who were not  members of  the Sabha  Union but  were  given  the benefit of  incentive payments under the said agreement were so given because they tacitly agreed to be bound by the said agreement. Even  accepting that in their case it had assumed the character of an implied term of contract of service, the alternative claim made in paragraph 8 of the plaint as being a condition  of service  otherwise, can  be referable to the claim of  the non-members only. The source of their right in that event  was different and a representative suit on their behalf by  the two  plaintiffs could  not be maintained. The numerous persons  must have  the same  interest in  one suit instituted under Order I, Rule 8 of the Code. Persons having different interests cannot be so represented. The better and more reasonable view, therefore, to take is that all workmen represented  by  the  two  plaintiffs  sought  an  order  of injunction in the civil court to prevent an injury which was proposed to  be caused  to them  in relation  to their right under the  Act. Hence  a suit  for a  decree  for  permanent injunction was not maintainable in the civil court as it had no jurisdiction  to grant  the relief  or even  a  temporary relief.      Although the  issue as  to the  non-compliance with the requirements of  section 9A  of the  Act  was  dropped,  the learned Trial  Judge seems  to have  found that the proposed change in  the conditions  of service  was  adverse  to  the interests of  the workmen.  Whether it  was so  or not  is a matter of  debate. But  one thing was apparent that both the agreements could  not be  simultaneously given effect to. It was impracticable-almost  impossible to do so. The result of the order of injunction made by the Trial Court was that the workmen represented  by  the  two  plaintiffs  were  to  get incentive payments in accordance with the scheme embodied in the agreement  dated the  31st December,  1966 ignoring  the addition to  the  strength  of  the  workmen  of  the  Motor Production Department in the shape of the 27 persons. On the other hand  the members  of the  Association Union  who  had entered into  the second  agreement dated  the 9th  January, 1971 were to get their incentive payments in accordance with that agreement  taking into account the contribution made in the matter  of production  by the newly added 27 persons. On the face  of it,  it was an attempt to put two swords in one sheath. That it was not only difficult but almost impossible to do  so was conceded on all hands, including Mr. Sorabjee,

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learned counsel  for the  plaintiff-respondents. Apart  from the question  of jurisdiction  the decree for injunction was not sustainable  on this account too. The dispute could well be decided from all aspects in a reference under the Act.      One more difficulty in the way of the sustainability of the order  of injunction  may also  be indicated.  Temporary injunction can  be granted  under sub-section (1) of section 37 of  the Specific  Relief  Act,  1963  but  a  decree  for perpetual injunction is made under sub-section (2). Grant of perpetual injunction  is subject  to the provision contained in Chapter 8. Under section 38(1) a perpetual injunction may be granted  to the  plaintiff to  prevent the  breach of  an obligation existing  in his  favour irrespective of the fact whether  the  obligation  arises  at  common  law,  under  a contract or under a special statute (subject to 449 the point  of jurisdiction).  But sub-section  (2)  provides that when  any such  obligation arises  out of  contract the courts shall be guided by the rules and provisions contained in Chapter  2. Section  14(1) (c)  occurring in that Chapter says that  a contract  which is  in its  nature determinable cannot be  specifically enforced.  The contract  in question embodied in  the written  agreement dated the 31st December, 1966 was  in its  nature determinable under section 19(2) of the Act  or could be varied by following the procedure under section 9A.  Section 41(a)  of the  Specific Relief Act says that an  injunction cannot  be granted to prevent the breach of  a  contract  the  performance  of  which  would  not  be specifically enforced.  Section 42 providing an exception to this is  not attracted  in this case. The decree or order of injunction made  therein, therefore,  is not  sustainable on this account too.      We now  proceed to  briefly state  the facts  of  Civil Appeal No.  2317/1972. During  the pendency of an industrial dispute in I.T. No. 139 of 1965, 46 workmen of the appellant company were  sought to  be dismissed and an application for according approval  to the  dismissal was made under section 33(2) of  the Act.  On 14.3.1968  a settlement  was  reached between the  Engineering Mazdoor  Sabha Union, plaintiff no. 1, the  same Sabha  Union, as  in the  other case,  and  the company. A written agreement was executed according to which the parties  agreed to  refer their  cases  to  a  Board  of Arbitrators consisting  of 3 persons. During the pendency of the arbitration the 46 workmen were to remain suspended from work till  its decision.  They were to be paid from the date of resumption  of work  by the  other workmen,  50% of their wages which  they would  have normally  earned had  they not been so  suspended.  On  14.11.1971  the  appellant  company served a  notice on  the union,  plaintiff no.  1 in writing seeking to  terminate  the  settlement  in  accordance  with section 19(2)  of the  Act. Thereupon  the union, and two of their members  instituted the suit on 14.12.1971 challenging the action of the company on several grounds and praying for an  order   of  injunction  to  restrain  the  company  from committing a  breach of  the agreement dated the 14th March, 1968 including  the breach  as regards  the payment  of  50% wages to the 46 workmen. It may be stated that the company’s nominee on the Board of Arbitrators had withdrawn. A prayer, therefore, was  made in  the plaint to direct the company to appoint  its   nominee  in  place  of  Mr.  Karnik  who  had withdrawn. The company asked the City Civil Court of Bombay, where the  suit was  instituted, to  decide the  question of jurisdiction of  the  court  to  entertain  the  suit  as  a preliminary issue.  The court  held against  the company. It went up  in revision  before the Bombay High Court. The same

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learned Judge  sitting singly who later on decided the other case upheld  the jurisdiction  of the civil court to try the suit. The company filed this appeal by special leave.      On the facts of this case it is all the more clear that the civil court has no jurisdiction to try it. The manner of voluntary reference of industrial disputes to arbitration is provided in  section  10A  of  the  Act.  The  reference  to arbitration has  to be  on the  basis of a written agreement between the employer and the workman. As provided in sub- 450 section (5) nothing in the Arbitration Act, 1940 shall apply to arbitrations  under section  10A of  the Act. There is no provision in  the Act  to compel a party to the agreement to nominate another  arbitrator if  its nominee  has  withdrawn from arbitration.  The company  had terminated the agreement dated the  14th March,  1968 under section 19(2) of the Act. On the  authority of this Court in South Indian Bank Ltd. v. A.R. Chacko,  Mr. Iyer endeavoured to argue that in spite of the termination of the agreement it still continued to be in force. Apart  from the  fact that the decision of this Court was with  reference to  the termination  of the  award under section  19,  it  is  clear  that  the  termination  of  the agreement in  this case was accepted by the union. It sought to challenge  it by  the institution  of a suit. It is clear that the  suit was in relation to the enforcement of a right created under the Act. The remedy in Civil Court was barred. The only  remedy available  to the workmen concerned was the raising of  an industrial  dispute. It  was actually raised, and, as  a matter  of fact, shortly after the institution of the suit the disputes were referred by the Government to the Industrial Tribunal  in I.T.  No. 33  of 1972  on  the  25th January, 1972.      For the  reasons stated  above  both  the  appeals  are allowed, the  judgments and  orders of  the courts below are set aside.  But in  the circumstances we shall make no order as to costs in either of the appeals. P.B.R.                                      Appeals allowed. 451