1. This petition under S. 115, C.P.C., is by the defendant in O.S. No. 369 of 1966, on the file of the Munsiff at Mangalore, South Kanara. It is directed against an order, recording findings on issues 25 and 26 arising therein.
2. Issue No. 25 relates to the question whether the plaintiff's suit was not maintainable in view of the fact that he had availed himself of the remedy provided by the Industrial Disputes Act, and pursuant to the doctrine of election of remedies. Issue No. 26 relates to the question whether the civil Court had jurisdiction to entertain the suit, in view of the bar of jurisdiction clearly implied by the provisions of the Industrial Disputes Act.
3. For the purpose of appreciating the contention urged at the Bar, it is necessary to set out briefly certain material allegations in the plaint. The plaintiff was formerly an employee of the Catholic Bank. By virtue of S. 45 of the Banking Companies Act, the said bank was merged with the Syndicate Bank, the defendant herein, on 11-9-1961. As per conditions 10 and 11 of the Scheme of Amalgamation, the existing service conditions governing the employees of the Catholic Bank should continue in force for three years from the date of such amalgamation. It would appear that before such amalgamation there was some agitation against it, in which the plaintiff is said to have played some part. In view of this background, the Syndicate Bank sought to remove him from service on some ground or other. To that end, although the plaintiff had put in several years of service, and was a seasoned employee, the defendant bank directed him to undergo some staff training. It is stated that such training was designed only for the purpose of training apprentices and beginners. The plaintiff, therefore, protested, leading to some interference by the Conciliation Officer. It is, however, unnecessary to refer to further proceedings in the said conciliation for the present purpose. The differences persisted for some time. Departmental proceedings were instituted against the plaintiff which culminated in his dismissal from service. It is stated, in regard to that enquiry, that it was in violation of the principles of natural justice, inasmuch as no fair and reasonable opportunity was afforded to the plaintiff to defend himself. He was dismissed from service on 28-12-1962. It is the case of the plaintiff that the dismissal was wrongful for various reasons. It was incidentally alleged that the case was one of victimisation and unfair labour practice. On these allegations, the plaintiff sought for the reliefs of declaration that the order of dismissal dated 28-12-1962 was not valid and binding on the plaintiff and for damages of Rs. 7,164.74 Ps. with interest, among other reliefs. The defendant denied these allegations and contended that the terms and conditions governing the plaintiff, while in service in the Catholic Bank, were subject to alteration at the discretion of the defendant. It was, therefore, not permissible for the plaintiff to rely on them for any purpose. The defendant-bank also denied the other allegations relating to enquiry and the contravention of the principles of natural justice. It also pleaded the bar of jurisdiction and doctrine of election and contended that the suit was not maintainable for the said reasons. It would appear that the plaintiff's cause was taken up by the Bank Employees' Union and attempt made by it to obtain a reference to a Tribunal in that behalf was unsuccessful.
4. The learned Munsiff, in a fairly well reasoned order, held against the defendant on both the issues, earlier mentioned. He came to the conclusion, that on the a allegations in the plaint the suit was one, in substance, based upon a breach of contract, and, therefore, not barred, either expressly or by implication, by the provisions of Industrial Disputes Act. Similarly, he rejected the contention based on the doctrine of election of remedies. Aggrieved by this order the petitioner has approached this Court.
5. The contention of Shri H. B. Datar, the learned Counsel appearing on behalf of the defendant-bank, the petitioner herein, was almost exclusively confined to the finding on issue No. 26 relating to bar of jurisdiction of the civil Court for the entertainment of the suit. His argument was that that the plaintiff having pleaded victimisation and unfair labour practice, which is a right created for the first time under the Industrial Disputes Act, he should be confined to his remedies available under the Act. It was submitted, that the case of the plaintiff having been taken up by the Bank Employees' Association, who sought to raise an industrial dispute in regard to the dismissal of the plaintiff unsuccessfully, it would not be open to the plaintiff to have recourse to civil Court for relief in that behalf. On the other hand, the plaintiff should have pursued the remedies available to him under the Industrial Disputes Act, and, therefore, should have taken steps to have the order of the Government refusing such reference, reviewed. He relied on a decision of this Court in Nippani Electricity Co. v. Bhimrao Lakshman (1968) 2 Mys. L.J. 194, and one of the Bombay High Court in Pigment Lakes and Chemical . v. Sitaram Kasiram Konde (1970) L. & I.C. 115.
6. On behalf of the respondent-plaintiff, Shri Balachandran, the learned Counsel contended that the suit would be maintainable for the reason that it was based primarily on a contract, as evidenced by cls. 10 and 11 of the Scheme of Amalgamation of the Catholic Bank with the Syndicate Bank. The reference to victimisation and unfair labour practice in the paint should be read in the context of the other allegations bearing on the question of the violation of the principles of natural justice. Even otherwise, the suit would be maintainable, based as it was on the allegation of wrongful dismissal, for the various reasons set out in the plaint. He invited reference to several decisions of the Supreme Court, although, it must be stated, he did not read most of them.
7. Before adverting to the above contentions it would be relevant to refer to some of the settled propositions governing the question of jurisdiction of civil Court, under S. 9, C.P.C. especially in matters relating to the rights and liabilities arising under a special statute and the specific remedies provided for the enforcement of them in such statutes. It may at this stage be mentioned that the primary contention of Shri Balachandran is that the suit was essentially one based on breach of contract between an employer and employee, and, therefore, it was one which would fall outside the purview of the remedies provided under the Industrial Disputes Act. In fact, the finding of the Court below is that the suit was one which was based on such a contract. Be that as it may, it is necessary to refer to some of the relevant proposition, with reference to some of the decisions of the Supreme Court, as it would be necessary in the context of the decisions relied on by Shri Datar.
8. The Supreme Court in K. S. Venkataraman & Co. v. State of Madras, : 60ITR112(SC) , while dealing with a question whether a suit for refund of tax, paid under the Madras General Sales Tax Act, the suit therein having been filed under S. 9 of the C.P.C., would be maintainable or not, has referred to some of the propositions at page 1094 of the above report thus :
'If the said provisions to the extent indicated are ultra vires the State Legislature the next question is whether a suit for the refund of the amounts paid in respect of assessments made under the said ultra vires provisions is maintainable. The sheet anchor of the arguments of the learned Counsel for the respondent is the decision of the Judicial Committee in Raleigh Investment Co's case (74 Ind App. 50). Before we consider the scope of the said decision, it will be convenient to notice some of the propositions of law settled in the context of the ouster of jurisdiction of a civil Court. Under S. 9 of the C.P.C. 'the Court shall, subject to the provisions herein contained, have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.' A suit is expressly barred of a legislation in express terms says so. It is impliedly barred if a statute creates a new offence or a new right and prescribes a particular penalty of special remedy. In that event, no other remedy can, in the absence of evidence of contrary intention, be resorted to : see Wolverhampton New Waterworks v. Howkesford, (1959) 6 C.B. (N.S.) 336. The general rule is that statutes affecting jurisdiction of Court are to be construed, so far as possible, to avoid the effect of transferring the determination of rights and liabilities from the ordinary Courts to executive officers : See Winter v. Attorney-General, (1875) L.R.P.C. 380. It has been held that 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 : see Firm Seth Radha Kishan v. Administrator, Municipal Committee, Ludhiana, : 2SCR273 . It is also equally well established that civil Courts have power to entertain a suit in which the question is whether the executive authority has acted ultra vires its power : see Emperor v. Sibnath Banarji, 72 Ind. App. 241; and Mohammad Din v. Imam Din, 74 Ind. App. 319. So far there is, or can be, no doubt but the further question that falls to be decided in this case is whether an assessment made under an ultra vires provision of a statute can only be questioned through the machinery provided by that Act or whether a suit in Civil court is maintainable in respect thereof.'
As regards the question posed at the end of the above passage, at page 1100 of the said report, it is observed thus :
'The legal position that emerges from the discussion may be summarised thus : If a statute imposes a liability and creates an effective machinery for deciding questions of law or fact arising in regard to that liability, it may, by necessary implication, bar the maintainability of a civil suit in respect of the said liability. A statute may also confer exclusive jurisdiction on the authorities constituting the said machinery to decide finally a jurisdictional fact thereby excluding by necessary implication the jurisdiction of a civil Court in that regard. But an authority created by a statute cannot question the vires of that statute or any of the provisions thereof whereunder if functions. It must act under the Act and not outside it. If it acts on the basis of a provision of the statute, which is ultra vires, to that extent it would be acting outside the Act. In that event, a suit to question the validity of such an order made outside the Act would certainly lie in a civil Court'
A further enunciation in this behalf may also be usefully referred to. In Bharat Kala Bhandar Ltd. v. Municipal Committee, Dhamangaon, : 59ITR73(SC) , it is observed :
'Further, one of the corollaries flowing from the principle that the Constitution is the fundamental law of the land is that the normal remedy of a suit will be available for obtaining redress against the violation of a constitutional provision. The Court must, therefore, lean in favour of construing a law in such a way as not to take away this right and render illusory the protection afforded by the Constitution.' (as reproduced in : (1967)IILLJ872SC ).
It is not disputed that a person aggrieved by an order of the Government refusing to refer an industrial dispute under S. 10 of the Industrial Disputes Act, would be without a remedy under that Act. It is no doubt true that such an aggrieved person in certain circumstances could have recourse to the extraordinary remedy afforded under Art. 226 of the Constitution as contended for by Shri Datar, the learned Counsel. That is not to say that such a remedy was available under the Industrial Disputes Act. The bar of jurisdiction against a civil Court entertaining a suit of the present nature has to be ascertained with reference to the express language used in the statute in that behalf or by necessary implication. It is not disputed at the Bar that there is no provision in the Industrial Disputes Act expressly providing for such a bar. The question therefore has to be examined whether any such bar could be implied with reference to the provisions of that Act. In such an event, the consideration that should weigh is whether the statute provides for an adequate and satisfactory alternative remedy to a party in case he is aggrieved by an order, as the one in the present case.
9. The argument of Shri Datar was specifically based on the allegation of 'violation and unfair labour practice' which is for the first time made an offence under the Industrial Disputes Act, for which there is no remedy under the general law enabling the institution of a suit under S. 9, C.P.C. This argument clearly is based on an assumption that the suit of the plaintiff was expressly based on such an allegation exclusively. On this point, I am in agreement with the contention of Shri Balachandran, viz., that the plaint allegations must be read as a whole, and, if so read, it would be clear that the suit was primarily based on a breach of contract of employment and violation of the principles of natural justice. In support of this submission, the learned Counsel relied strongly on cls. 10 and 11 of the Scheme of Amalgamation. It is no doubt the contention on behalf of the defendant-bank that the terms and conditions in that scheme were made applicable only in a qualified way. All the same, to my mind, such a plea urged on behalf of the defendant would not take the matter out of the realm of contract. I am, therefore, clearly of the opinion, that in the facts and circumstances of this case the order under revision cannot be disturbed.
10. In the light of the above observations, I shall now proceed to consider the two case relied on by Shri Datar in support of the petition. Both the cases, in my opinion, are distinguishable on facts. In Nippani Electricity Co's case this Court was concerned with the transgression of the provisions of S. 25F of the Industrial Disputes Act. It is clear, therefore that the right conferred under S. 25F of that Act was one which was created for the first time. Whether such a right accrued or arose under a contract between the employer and the employee was not in issue. Therefore on the principles of the Woolverhampton New Waterworks case extracted earlier in the passage occurring in All India Reporter 1966 S.C. 1089, it is possible to infer a bar of jurisdiction in the civil Court, as recourse should be had to the remedy provided under the special Act for the enforcement of such a right. In the present case, no such question arise, the suit having been based expressly on contract and violation of the principles of natural justice.
11. In the Pigment Lake's case the question that arose was more or less similar to the one in the Nippani Electricity Co.'s case. The learned Judges of the Bombay High Court were dealing with a question of contravention of Ss. 25FFF and 25H of the Industrial Disputes Act. It was in the Context of such a question that their Lordships held that the suit was barred. It remains, however, to consider an observation made therein, on which some reliance was placed by Mr. Datar. The observation in question occurs as page 119 of the above cited report and reads thus :
'Mr. Bhokarikar on behalf of the plaintiff did apply to the Industrial Tribunal, but by its reply dated 11th April, 1960 he was told that unless the dispute was referred for adjudication by a competent authority, the Industrial Tribunal could not entertain the plaintiff's application. Mr. Bhokarikar submit that the plaintiff is driven from pillar to post and it would be astounding to find that there is no Tribunal which can grant him relief. This contention is based on an erroneous assumption that the plaintiff is without a remedy. He would have satisfied the appropriate Government that an industrial dispute really existed and that it should be referred of Labour Court or Industrial Tribunal. Instead of doing that, he rushed to the civil Court without considering the nature of his claim.'
12. This passage apparently lends support to the contention urged on behalf of the petitioner that it was open to the plaintiff to have persuaded the Government to make a reference. This observation, in my opinion, is really in the nature of an obiter dictum. That such is the position would be clear from a further observation made in the same paragraph 16 of the judgment. It reads thus :
'There is, however, nothing on this decision to indicate that an individual dispute which does not amount to an industrial dispute can be the subject-matter of a civil suit even though the reliefs sough are available only under Chapter V-A of the Act.'
13. It is clear from the latter observation that the decision in the case turned on the ground of availability of a remedy under the special statute itself, viz., Chapter V-A of the Industrial Disputes Act. I am not persuaded, therefore, to accept the contention urged in this behalf.
14. Before disposing of the case, I consider it necessary to make a few more observations. On the question of doctrine of election of remedies, beyond a passing reference made in the course of the arguments, there was nothing said in elaboration of it. I, therefore, see no reason to differ from the conclusions of the Munsiff in regard to Issue No. 25 in the case. In regard to the terms and conditions of the Scheme of Amalgamation on which considerable reliance has been placed in the pleadings, they were neither read nor commented upon in support of the respective contentions of the parties, in the course of the arguments at the Bar. I do not wish, therefore, to be understood as having expressed any opinion as to the true nature and scope of such terms and conditions, or that they operate as a binding contract between the parties. I may not also be taken to have said anything on the question of availability of the principles of natural justice as a ground of attack, if such principles had not been incorporated in and made part of the terms and conditions according to the Scheme of Amalgamation.
15. The result of the above discussion is that the petition does not deserve to succeed. It is accordingly dismissed. In the circumstances of the case, the respondent will be entitled to his costs.