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K.S.R.T.C. and anr. Vs. T.i. Aron - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberR.F.A. No. 177 of 1981
Judge
Reported inILR1983KAR351; 1983(1)KarLJ555; (1983)IILLJ300Kant
ActsIndustrial Disputes Act, 1947 - Sections 33C
AppellantK.S.R.T.C. and anr.
RespondentT.i. Aron
Excerpt:
- major port trusts act, 1963 [c.a. no. 38 of 1963]. sections 49-b, 50-a & 50-b: [a.s. bopanna, j]port dues held, it includes only port dues as a category of levy and will not include pilotage charges and berth hire charges. -- section 56: show cause notice regarding short levy bills - notice issued indicating that it has approval of board of trustees - it is not by delegating power but after passing resolution held, show cause notice not invalid for want of competence. -- section 56: notice of payment of charges short levied or erroneously refunded - two years period within which notice is to be issued held, port trust cannot claim benefit of exclusion of time during which earlier writ petitions were pending before court. moreso, when court in earlier writ petition has passed an..........the show cause notice explaining the points held against him in detail on 28.8.1970. but the dy. general manager, bts dn., karnataka state road transport corporation, discharged the plaintiff from service by his order dated 13.4.1971. plaintiff preferred an appeal before the general manager against the said order. but the appeal was dismissed, confirming the order of the dy. general manager. this order of the dy. general manager, according to the plaintiff, was contrary to law and passed without jurisdiction. according to the standing orders of the karnataka state road transport corporation, it was only the dy. general manager of the bangalore division who was competent to inflict the punishment upon the employee to whichever division he belonged. since the dy. general manager of the.....
Judgment:

1. This appeal is by defendants 1 and 2 and is directed against the judgment and decree dated 19.3.1981 passed by the V Addl. City Civil Judge, Bangalore City, in OS. No. 335 of 1980, on his file, decreeing the suit of the plaintiff as prayed for with costs.

2. Plaintiff was a driver in the BTS division of the Mysore State Road Transport Corporation, (now Karnataka State Road Transport Corporation). On 13.8.68, the plaintiff was given charge of a bus in the BTS division to run on the daily schedule. It was handed over to him a little earlier than the schedule time; first to avoid rush at the gate and secondly to reach the starting point in time. The plaintiff took the bus to reach the starting point in Jayanagar. On the way, as there was time, he stopped the bus in front of a hotel in Wilson Garden in order to take a cup of coffee as he was having gastric trouble. On the doctor's advice, he had to take some food frequently in order to avoid gastric trouble. So, he stopped the bus to take a tablet with coffee. At that time, the Divisional Mechanical Engineer came there. After taking coffee the plaintiff/driver went, according to him, on his scheduled work. A year later, an enquiry into the alleged misconduct of the plaintiff was started. He was charged on the allegations that he stopped the bus at an unauthorised point, that he abandoned the bus and that he had no possessed the driving licence at that time. He submitted his explanation that he had not abandoned the bus and not stopped that bus at the unauthorised point and with regard to the non-possession of the driving licence, he explained that in a hurry, as he had to change his uniform, he forgot to take his driving licence from the old uniform and carry the same with him. A show cause notice was issued after a year proposing to punish the plaintiff/driver by discharging him from service. He filed his written statement to the show cause notice explaining the points held against him in detail on 28.8.1970. But the Dy. General Manager, BTS Dn., Karnataka State Road Transport Corporation, discharged the plaintiff from service by his order dated 13.4.1971. Plaintiff preferred an appeal before the General Manager against the said order. But the appeal was dismissed, confirming the order of the Dy. General Manager. This order of the Dy. General Manager, according to the plaintiff, was contrary to law and passed without jurisdiction. According to the standing orders of the Karnataka State Road Transport Corporation, it was only the Dy. General Manager of the Bangalore Division who was competent to inflict the punishment upon the employee to whichever division he belonged. Since the Dy. General Manager of the BTS Dn. inflicted the punishment on the plaintiff it was one without jurisdiction and liable to be quashed. Similarly, the appellate order of the General Manager, Karnataka State Road Transport Corporation, was also without jurisdiction. The enquiry held by the Dy. General Manager was not supported by evidence. The laches on the part of the plaintiff were too minor for a drastic punishment of discharge. Hence, he instituted the suit for declaration that the order passed by the Dy. General Manager was void, illegal and inoperative and that plaintiff should be treated as on duty even after 24.11.1971, directing the defendants by way of mandatory injunction to continue the services of the plaintiff as driver.

3. The suit was resisted by the defendants by filing their written statement. They contended that the plaintiff was not governed by the Karnataka State Road Transport Corporation standing Orders. He was governed by the BTS Standing Orders. The BTS Amended Standing Order was certified by the Standing Order Authority on 17.5.1961. The said Amended Standing Order binds the employees and the employer. Under the said Standing Order, the Dy. General Manager or the Divisional Head is the Competent Authority to terminate the services of the plaintiff. The defendants further contended that full opportunity was given to the plaintiff in the enquiry. There was no breach of principles of natural justice. Hence, they contended that the suit was not maintainable. They further contended that the Court had no jurisdiction to try as the jurisdiction was impliedly barred in as much as the matter in controversy in the suit was one recognizable by the Industrial Tribunal constituted under the Industrial Disputes Act.

4. The trial Court raised following issues as arising from the pleadings :

(1) Whether the plaintiff proves that the impugned order is void, illegal and inoperative

(2) Whether the plaintiff is entitled to declaration and mandatory injunction sought for

(3) What decree

Thereafter, an additional issue was raised as follows :

Whether the jurisdiction of the Civil Court is ousted, as contended in para-9 of the written statement

5. Since the list issue was purely an issue of law, no further evidence was adduced by either party.

6. The trial Court, appreciating the evidence on record, answered Issues Nos. 1 and 2 in the affirmative. It held further that the Court had jurisdiction to try the suit and, in that view, the trial Court gave a decree in these terms :

'Plaintiffs suit is decreed with costs'. Aggrieved by the said judgment and decree, the defendants have come up with the above regular first appeal before this Court.

7. The learned Advocate appearing for the appellants strenuously urged before me that the Court below was not justified in holding that the jurisdiction of the Civil Court was not impliedly barred in view of the provisions made in the Industrial Disputes Act.

8. As against that, the learned Advocate appearing for the respondent/plaintiff argued supporting the judgment and decree of the trial Court holding that the Civil Court had jurisdiction to try the suit.

9. The sole point, therefore, that arises for my consideration in this appeal is : 'Whether the trial Court was justified in holding that the Civil Court has jurisdiction to entertain, hear and decree the suit ?'

10. It is not in dispute that the plaintiff is a driver under the Karnataka State Road Transport Corporation. The fact that he was discharged from service on enquiry by the Dy. General Manager, BTS Dn. is not in dispute. The plaintiff instituted the suit with the following prayer :

'Therefore, the plaintiff prays for a decree in favour of the plaintiff declaring :

(a) that the order of the General Manager (1st defendant) in No. MST/CO/EST/D3; 9 - 71/6044, dt. 24.11.1971, confirming the order of the Dy. General Manager, (2nd defendant) in No. MST/BTF/TRF/DEL/D3/196-70-71, dated 31.3.71/13.4.1971, is void, illegal and inoperative.

(b) that the plaintiff should be treated as on duty even after 24.11.1971 and directing the defendants by way of a mandatory injunction to take the plaintiff back to duty.

(c) to award costs of this suit.'

11. The point at issue is : 'Whether the Civil Court has jurisdiction to grant such a prayer holding that the order passed by the Dy. General Manager and confirmed in appeal by the General Manager is illegal, null and void and, as such, the plaintiff continues in service ?'

12. It cannot be doubted that this dispute of illegal dismissal amounting to a nullity could also be raised before an Industrial Tribunal under the amended Industrial Disputes Act or before a Labour Court, as the case may be. Therefore, the moot question is : 'Whether it could be agitated before the Civil Court ?'

13. Fortunately, the relevant law is reduced to a narrow compass within the canvass of the binding precedent of the Supreme Court, in the case Premier Automobiles Ltd. v. Kamlakar Shantaram [1975-II L.L.J. 445] at p. 459. Their Lordships of the Supreme Court examined the issue and summed up the law in four succinct principles in para-23 of the judgment. They are :

'(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 the 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 S. 33C or the raising of an industrial dispute, as the case may be.'

14. The learned Advocate appearing for the appellants argued that the present dispute falls within the scope of Clause (3), whereas the learned Advocate appearing for the respondent argued that the dispute falls within the scope of Clause (2) noted above.

15. The learned Advocate appearing for the respondent pointed out that the relief claimed in the suit is to declare that the order passed by the Dy. General Manager and confirmed by the General Manager is void in the eye of law and, as such, a declaration could be made by the Civil Court under the general law of the land. It was not a relief which was specifically confined to any provision made in the Industrial Disputes Act though such a relief could also be given under the Industrial Disputes Act. Hence, he submitted that it is for the plaintiff to choose the forum though having chosen one forum he could not opt for the other. He pointed out that even if the Industrial Disputes Act were not to be on the Statute book at all, the workman could resort to the ordinary Civil rights in the Civil Court for the redress of his grievances with regard to dismissal or removal which was a nullity in the eye of law.

16. In support of the proposition made by him, he relied on a decision of the Supreme Court in the case, Sirsi Municipality v. Cecelia Kom Francis Tellis [1973-I.L.L.J. 226]. In the said case, the Supreme Court of India, speaking through Ray, J., has observed in paras 15 to 17 of the judgment thus :

'The cases of dismissal of a servant fall under three broad heads. The first head relates to relationship of master and servant governed purely by contract of employment. Any breach of contract in such a case is enforced by a suit for wrongful dismissal and damages. Just as a contract of employment is not capable of specific performance similarly breach of contract of employment is not capable of finding a declaratory judgment of subsistence of employment. A declaration of unlawful termination and restoration to service in such a case of contract of employment would be indirectly an instance of specific performance of contract for personal services., Such a declaration is not permissible under the law of Specific Relief Act.

The second type of cases of master and servant arises under Industrial Law. Under that branch of law a servant who is wrongfully dismissed may be reinstated. This is a special provision under Industrial Law. This relief is a departure from the reliefs available under the Indian Contract Act and the Specific Relief Act which do not provide for reinstatement of a servant.

The third category of cases of master and servant arises in regard to the servant in the employment of the State or of other public or local authorities or bodies created under Statute.'

17. Further, explaining the aspect, the Supreme Court observed in para-18 of the judgment thus :

'Termination or dismissal of what is described as a pure contract of master and servant is not declared to be a nullity however wrongful or illegal it may be. The reason is that dismissal in breach of contract is remedied by damages. In the case of servant of the State or of local authorities or statutory bodies, Courts have declared in appropriate cases the dismissal to be invalid if the dismissal is contrary to rules or natural justice or if the dismissal is in violation of the provisions of the statutes. Apart from the intervention of statute there would not be a declaration of nullity in the case of termination or dismissal of a servant of the State or of other local authorities or statutory bodies.'

18. Distinguishing such public employment from private employment, the Supreme Court observed in para-19 of the judgment thus :

'The Courts keep the State and the public authorities within the limits of there statutory powers. Where a State or a public authority dismisses an employee in violation of the mandatory procedural requirements or on ground which are not sanctioned or supported by statute, the Courts may exercise jurisdiction to declare the act of dismissal to be a nullity. Such implication of public employment is thus distinguished from private employment in pure cases of master and servant.'

19. Thus, considering in this perspective, it is obvious that the impugned order of termination of the Karnataka State Road Transport Corporation, which was earlier known as 'The Mysore State Road Transport Corporation', which is a statutory Corporation, is susceptible to attack as having been in flagrant violation of the provisions made in the Statute and as such, the termination or discharge is a nullity in the eye of law. Such a suit arises out of the general law of the land and is maintainable in a Civil Court. Such a dispute may also be brought up under the Industrial Disputes Act and as such, it is Clause (2), extracted above, that is invoked on the facts of the case.

20. It may be noted that if the suit was for reinstatement, it could be instituted only under the provisions of the Industrial Disputes Act and as such, the case should have fallen within Clause (3) and not Clause (2).

21. In fact, this Court, in the case, Yemanappa Revappa v. Town Municipal Council, Jamkhandi (I LR 1971 Ker. 1318), had occasion to consider the case of dismissal of an employee by the Municipality, Jamkhandi. But, in that suit, the prayer of the plaintiff was that he was wrongfully dismissed and he sought for reinstatement and this Court observed :

'The common law remedy of a servant who is wrongfully dismissed, is only by way of damages. He cannot seek reinstatement in service. In the instant case, the plaintiff has sought for reinstatement of his services in the Municipality, which could be granted only under the Industrial Disputes Act and, that being so, the suit does not merely relate to common law remedy. It pertains to the remedy provided in the special Statue, viz., Industrial Disputes Act, and, as such, he has to enforce his remedy under the general law of the country and before an ordinary Civil Court.'

22. But, as stated above, the present prayer is not for reinstatement but for a declaration that the order of dismissal passed by the Dy. General Manager and confirmed by the General Manager is nullity in the eye of law and, as such, his services continued. Such a prayer, as explained by the Supreme Court of India, is under the general law of the land and is maintainable before a Civil Court.

23. In the case, Executive Committee of Vaish Degree College, Shamli v. Lakshmi Narain [1976-II LLJ 163], the Supreme Court of India has explained the distinction made between Institution, which is not created by or under a Statute but is governed by a certain statutory provisions for the proper maintenance and administration of the Institution. That question, however, does not arise on the facts of the case as Karnataka State Road Transport Corporation is a corporate body created under a Statute and its employees are governed by statutory provisions.

24. The learned Advocate appearing for the appellants invited my attention to a decision of the Supreme Court in the case, Indian Airlines Corporation v. Sukhdeo Rai [1971-I LLJ 496]. Therein, the Supreme Court held that the Act does not cast any obligation upon Indian Airlines Corporation to appoint employees under particular type of contract or to terminate them on specific grounds and, hence, though Corporation's employee is dismissed in contravention of Regulations made under the Act, the dismissal cannot be declared as null and void. Hence, the ruling has no relevance to the facts of the present case.

25. Similarly, in the case, Sitaram Kashiram Konda v. Pigment Cakes and Chemicals Mfg. Co. [1979-II LLJ 444], the plaintiff filed a suit in the trial Court alleging certain unjustifiable and illegal actions on the part of his employer, the respondent. The Supreme Court held that the main reliefs asked for by him were such that when granted they would amount to specific performance of the contract of service and, therefore, they could not be granted. But, when in the alternative, the appellant had also prayed for awarding compensation to him and he had made out a case that he was wrongfully dismissed from service, this relief could be granted by the Civil Court. To that limited extent, the matter could be examined by the Civil Court. ( : (1964)ILLJ1SC , [1971-I L.L.J. 496] and [1975-II L.L.J. 445] were relied upon). It was obviously a case of private employment.

26. Thus, considered as a whole, I am satisfied that the dispute that arises on the facts of the present case of under S. 9 of the CPC. There is no implied bar of jurisdiction in view of the provisions of the Industrial Disputes Act as the relief claimed is not one that arises exclusively out of the provisions of the Industrial Disputes Act out of the provisions of the Industrial Disputes Act but is of a general nature arising out of the general law, the congnizance of which can be taken under S. 9 of the CPC.

27. In the result, therefore, I hold that the appeal is devoid of merits and is liable to be dismissed and I dismiss the same.

28. On the peculiar facts of the case, I make no order as to costs of this appeal.


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