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CASE NO.: Appeal (civil)  2945 of 2008

PETITIONER: Rajasthan SRTC & Ors

RESPONDENT: Mohar Singh

DATE OF JUDGMENT: 24/04/2008

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: J U D G M E N T REPORTABLE

CIVIL APPEAL NO.   2945 OF 2008 (Arising out of SLP (C) No.6756 of 2006)

S.B. Sinha, J.

1.      Leave granted. 2.      First appellant (Corporation) is a statutory corporation constituted and  incorporated under the Road Corporation Act, 1951.  Respondent herein was  a driver of a bus employed by the Corporation.   3.      On the charges of alleged commission of misconduct on the part of  the respondent, a disciplinary proceeding was initiated against him on or  about 6.11.1982.  The Enquiry Officer found him guilty of the said charges.   By reason of an order dated 31.5.1985, the disciplinary authority, upon  considering the report of enquiry officer inflicted the punishment of  dismissal from services on him with immediate effect.  It was furthermore  directed that he shall not be entitled to further wages save and except what  has already been paid to him by way of subsistence allowance.   4.      An appeal preferred by him was dismissed by the Appellate Authority  by an order dated 16.6.1987. 5.      Respondent filed a civil suit in the Court Additional Munsif, Jaipur  which was marked as Civil Suit No.632/88 (290/86).  In his written  statement, the appellant, inter alia, contended that the Civil Court had no  jurisdiction to entertain the suit.  Some of the issues framed by the Civil  Court were : "(1)    Whether the order of termination No.1516  dated 31.5.1985 and the order of the  Appellate Authority dated 16.6.1987 are  illegal and bad in law? XXX                     XXX                     XX  (3)    Whether the Court has got no jurisdiction to  entertain and try the suit?"

6.      While determining issue No.1, the Trial Court, inter alia, held that the  order of termination dated 31.5.1985 as also the order of the appellate  authority were illegal, bad in law and against the principles of natural  justice, opining : i)      The documents mentioned in the charge-sheet whereupon the  appellant relied, had not been supplied to the respondent; ii)     He was not permitted to cross-examine the witnesses examined on  behalf of the department; and iii)    The enquiry officer acted like a prosecutor. 7.      On the said findings, the suit was decreed, opining :

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"In the result, it is ordered that the suit of the  plaintiff is decreed against the defendant declaring  that the order No.1516 dated 31.5.1985 passed by  the defendant and the order of the Appellant  Authority dated 16.6.1987 is held to be illegal, bad  in law non est being against principle of natural  justice and, therefore, is set aside.  It is also  declared that the plaintiff would be treated to be in  continuous service of the defendant without any  break and would also be entitled to receive all the  monetary benefits as he would have been entitled  has he been in continuous service."

8.      An appeal preferred thereagainst by the appellant was dismissed by  the Additional District and Sessions Judge, Jaipur City by a judgment and  order dated 5.5.2000.   The High Court, by reason of the impugned judgment has dismissed  the second appeal filed by the appellant, holding that no substantial question  of law arose for its consideration. 9.      Mr. Thanvi, learned counsel appearing on behalf of the appellant,  would submit that the Civil Court, in the facts and circumstances of this  case, had no jurisdiction to entertain the suit.           It was pointed out that as there exists conflict between two three Judge  Bench decisions of this Court in Rajasthan State Roadways Transport  Corporation & Anr. v. Krishna Kant & Ors. [(1995) 5 SCC 75] and  Rajasthan SRTC & Ors. v. Khadarmal [(2006) 1 SCC 59], a Division Bench  of this Court in Civil Appeal No.3428 of 2005 referred the matter to a larger  Bench.   10.     Section 9 of the Code of Civil Procedure provides that all Civil Courts  shall have jurisdiction to try all suits of a civil nature excepting suits of  which their cognizance is either expressly or impliedly barred.         The jurisdiction of the Civil Court apparently is not expressly barred  by the provisions of Industrial Disputes Act, 1947.   The question which arises for our consideration would be as to  whether the same is barred by necessary implication. 11.     Civil Court may have a limited jurisdiction in service matters but it  cannot be said to have no jurisdiction at all to entertain a suit.  It may not be  entitled to sit in appeal over the order passed in the disciplinary proceedings  or on the quantum of punishment imposed.  It may not in a given case direct  reinstatement in service having regard to Section 14(1)(b) of the Specific  Relief Act, 1963 but, it is a trite law that where the right is claimed by the  plaintiff in terms of common law or under a statute other than the one which  created a new right for the first time and when a forum has also been created  for enforcing the said right, the Civil Court shall also have jurisdiction to  entertain a suit where the plaintiff claim benefit of a fundamental right as  adumbrated under Article 14 of the Constitution of India or mandatory  provisions of statute or statutory rules governing the terms and conditions of  service. 12.     Under the industrial law, and in particular the 1947 Act, the  authorities specified therein including the Appropriate Governments and the  Industrial Courts have various functions to perform.   Terms and conditions  can be laid down thereunder.  Violation of the terms and conditions of  service at the hands of the employer is also justiciable.   Safeguards have  been provided under the Act to see that services of workmen are not unjustly  terminated.   The 1947 Act provides for a wider definition of ’termination of  service’.  Conditions precedent for termination of service have been  provided for thereunder.   A decision taken by the Disciplinary Authority under the 1951 Act  ordinarily would be a subject matter of suit.  The Civil Court, however, as  noticed hereinbefore exercises a limited jurisdiction.   If however, the  concerned employee is a ’workman’ within the meaning of the provisions of  the 1947 Act, he apart from the common law remedies, may take recourse to  the remedies available before an industrial court.    When a right accrues under two statutes vis-‘-vis the common law

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right, the concerned employee will have an option to chose his forum. 13.     We must also notice the distinction between a right which is conferred  upon an employer under a statute for the first time and also providing for a  remedy and the one which is created to determine the cases under the  common law right.  Only in a case of the former, the Civil Court’s  jurisdiction may be held to be barred by  necessary implication.   The question came up for consideration before a Three Judge Bench  of this Court in The Premier Automobiles Ltd. v. Kamlakar Shantaram  Wadke & Ors. [AIR 1975 SC 2238].  The distinction as noticed  hereinbefore, was noticed therein.  The Court extensively quoted from  Wolverhampton New Waterworks Co. v. Hawkesford [(1859) 6 CB (NS)  336] as under : "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 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\005.. "With  respect to that class it has always been held, that  the party must adopt the form of remedy given by  the statute."

       Having analysed the other ratio of decisions, it was summed up :

"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 and the remedy lies only  in the civil Court. (2)     If the dispute is an industrial dispute arising  out of a right or liability under the general or  common law and not under the Act, the  jurisdiction of the civil Court is alternative  leaving it to the election of the suitor  concerned to choose his remedy for the  relief which is competent to be granted in a  particular remedy. (3)     If the industrial dispute relates to the  enforcement of a right or an obligation  created under the Act, then the only remedy  available to the suitor is to get an  adjudication under the Act. (4)     If the right which is sought to be enforced is  a right created under the Act such as Chapter  VA then the remedy for its enforcement is  either Section 33C or the raising of an  industrial dispute, as the case may be."

14.     The said principle, in our opinion, should be applied in a case of this  nature.  The Courts ordinarily do not adopt an interpretation which takes

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away the jurisdiction of the Court. 15.     We may in this behalf profitably notice the following excerpts from  the Principles of Statutory Interpretation (11th Edn) by Justice G.P. Singh : " ’It is a principle by no means to be whittled  down’ and has been referred to as a "fundamental  rule".  As a necessary corollary of this rule  provisions excluding jurisdiction of civil courts  and provisions conferring jurisdiction on  authorities and tribunals other than civil courts are  strictly construed.  The existence of jurisdiction in  civil courts to decide questions of civil nature  being the general rule and exclusion being an  exception, the burden of proof to show that  jurisdiction is excluded in any particular case is on  the party raising such a contention.  The rule that  the exclusion of jurisdiction of civil court is not to  be readily inferred is based on the theory that civil  courts are courts of general jurisdiction and the  people have a right, unless expressly or impliedly  debarred to insist for free access to the courts of  general jurisdiction of the State.  Indeed, the  principle is not limited to civil courts alone, but  applies to all courts of general jurisdiction  including criminal courts.  The rule as stated above  relating to strict construction of provisions  excluding jurisdiction of courts of general  jurisdiction was recently expressly approved by the  Supreme Court."

16.     In Krishna Kant (supra), this Court opined that where a dispute  involves recognition of servant and enforcement of rights and obligations  created under the Industrial Disputes Act and/or its sister enactments such as  Industrial Employees (Standing Orders) Act, the Civil Court will have no  jurisdiction.   Premier Automobiles (supra) was explained, stating : "25. It is the Principle No. 2, and particularly the  qualifying statements in para 24, that has given  rise to good amount of controversy. According to  Principle No. 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  Industrial Disputes Act, the jurisdiction of the civil  court is alternative and it is left to the person  concerned either to approach the civil court or to  have recourse to the machinery provided by  Industrial Disputes Act. But Principle No. 2 does  not stand alone; it is qualified by para 24. Now  what does para 24 say? It says (i) in view of the  definition of "industrial dispute" in the Industrial  Disputes Act, there will hardly be an industrial  dispute arising exclusively out of a right or liability  under the general or common law. Most of the  industrial disputes will be disputes arising out of a  right or liability under the Act. (ii) Dismissal of an  unsponsored workman is an individual dispute and  not an industrial dispute (unless of course, it is  espoused by the union of workmen or a body of  workmen) but Section 2-A has made it an  industrial dispute. Because of this "civil courts will  have hardly an occasion to deal with the type of  cases falling under Principle No. 2". By and large,  industrial disputes are bound to be covered by  Principle No. 3. (Principle No. 3 says that where  the dispute relates to the enforcement of a right or

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obligation created by the Act, the only remedy  available is to get an adjudication under the Act.)"

       However, in that case, this Court declined to set aside the decree  which was the subject matter of the appeals. 17.     We are not concerned with such a situation here as the same is not  being claimed by the plaintiff on the basis of right arising either under the  Industrial Disputes Act, 1947 or Industrial Employees (Standing Orders)  Act, 1946.  We may also notice that in Rajasthan State Road Transport  Corporation & Ors. v. Zakir Hussain [(2005) 7 SCC 447], whereupon the  learned counsel also replied on, this Court noticed Krishna Kant (Supra), but  in paragraph 32 of the judgment having regard to object of the Industrial  Disputes Act held that the termination of the workman concerned was a  simpliciter one and did not contain any stigma and, thus, the law does not  require holding of any enquiry before terminating the services of the  employee being not on the ground of any misconduct.   It was held that the Civil Court has no jurisdiction as the Management  was fully entitled to terminate the services of the probationary officer during  the period of probation, if his services were not found to be satisfactory.   18.     However, this Court in State of U.P. v. Shatrughan Lal & Anr. [AIR  1998 SC 3038], opined that where copies of the statement of the witnesses  were not supplied to the delinquent employee, the same would constitute   violation of the principles of natural justice, stating : "It has also been found that during the course of  the preliminary enquiry, a number of witnesses  were examined against the respondent in his  absence, and rightly so, as the delinquents are not  associated in the preliminary enquiry, and  thereafter the charge-sheet was drawn up.  The  copies of those statements, though asked for by the  respondent, were not supplied to him.  Since there  was a failure on the part of the appellant in this  regard too, the Tribunal was justified in coming to  the conclusion that the principles of natural justice  were violated and the respondent was not afforded  an effective opportunity of hearing, particularly as  the appellant failed to establish that non-supply of  the copies of statements recorded during  preliminary enquiry had not caused any prejudice  to the respondent in defending himself."

19.     In Khadarmal (supra), it was held that the Civil Court had no  jurisdiction and the decrees which were passed have no force of law.   Apparently, this Court in CA No.3428 of 2005 (supra) found an apparent  conflict in the said decision vis-‘-vis Krishna Kant (supra) and Khadarmal  (supra).         In Khadarmal (supra) also, however, this Court directed that if any  back wages had been paid, the same shall not be recovered. 20.     The decisions referred to hereinbefore clearly brings about a  distinction which cannot be lost sight of.  If a right is claimed under the  Industrial Disputes Act or the sister laws, the jurisdiction of the Civil Court  would be barred, but if no such right is claimed, civil court will have  jurisdiction.   21.     Appellant is a ’State’ within the meaning of Article 12 of the  Constitution of India.  It is created under a statute.  As a State, it is bound to  comply with the requirements of Article 14 of the Constitution of India as  also other provisions of Part III of the Constitution. It is also bound to  comply with the mandatory provisions of the statute or the regulations  framed by it. 22.     It is also bound to follow the principles of natural justice.  In the  event, it is found that the action on the part of a State is violative of the  Constitutional Provisions or the mandatory requirements of a statute or  statutory rules, the Civil Court would have the jurisdiction to direct

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reinstatement with full back wages.   23.     In Praga Tools Corporation v. C.V. Imanual & Ors. [AIR 1969 SC  1306], it was held : "Therefore, the condition precedent for the issue of  mandamus is that there is in one claiming it a legal  right to the performance of a legal duty by one  against whom it is sought.  An order of mandamus  is, in form, a command directed to a person,  corporation or an inferior tribunal requiring him or  them to do a particular thing therein specified  which appertains to his or their office and is in the  nature of a public duty.  It is, however, not  necessary that the person or the authority on whom  the statutory duty is imposed need be a public  official or an official body.  A mandamus can  issue, for instance, to an official of a society to  compel him to carry out the terms of the statute  under or by which the society is constituted or  governed and also to companies or corporations to  carry out duties placed on them by the statutes  authorizing their undertakings.  A mandamus  would also lie against a company constituted by a  statute for the purposes of fulfilling public  responsibilities."

24.     For the reasons aforementioned, we do not find any merit in this  appeal.  It is dismissed accordingly.  As the respondent has not appeared,  there shall be no orders as to costs.