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Orissa Road Transport Company Limited and anr. Vs. Sachidananda Kanungo - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revision No. 599 of 1980
Judge
Reported in1984(II)OLR978
ActsCode of Civil Procedure (CPC) , 1908 - Sections 9; Industrial Disputes Act, 1947
AppellantOrissa Road Transport Company Limited and anr.
RespondentSachidananda Kanungo
Appellant AdvocateY.S.N. Murty, Adv.
Respondent AdvocateA. Pasayat, B. Patnaik, B. Mohanty and R. Chimanka
DispositionPetition allowed
Cases ReferredPremier Antomobiles Ltd. v. Kamlakar Shantaram Wadke and Ors. (supra). In
Excerpt:
.....but such exclusion must either be explicitly expressed or clearly implied. the expression 'industrial dispute' as per the definition given in section 2(k) of the act means any dispute or difference between employers and employers or between employers sad 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. it is contended that where the right claimed is not clearly a creature of a particular statute but is a common law right and the statute only entrusts to a special tribunal to adjudicate certain disputes relating to such a right, it cannot be taken to have ousted the jurisdiction of the civil court. 2 had been vested with all the powers exercisable by the..........9 of the code of civil procedure provides that the courts shall have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. a suit is said to be expressly barred when it is barred by an enactment for the time being in force. where a special tribunal is created by or under the authority of an act of the legislature for the purpose of determining the question as to the rights which are the creation of the act, then the jurisdiction of that tribunal is, unless provided otherwise, exclusive and the jurisdiction of the civil court is said to be impliedly barred. the act has been enacted providing a special forum for investigation and settlement of industrial disputes. though the act does not spell out any express.....
Judgment:

P.C. Misra, J.

1. The defendants are the petitioners in this revision against the order, dated 19.8.1980 of the Munsif, First Court, Cuttack, passed in T. S. No. 53 of 1977 deciding issue No. 6 in favour of the plaintiff by holding that the Civil Court has jurisdiction to try the suit.

2. The plaintiff's case is that he was appointed in the office of the Managing Director of defendant No. 1 at Cuttack on 3.6.1960 as Lower Division Assistant and was subsequently promoted to Gr. II Assistant since 8. 9. 1964. In accordance with Resolution No. 31 dated 22.9.1962 of the Board of Directors of defendant No. 1, the post of Gr. II Assistant in the office of defendant No. 2 which was then at Cuttack was declared permanent and consequently the plaintiff was declared to be a permanent employee in the said post with effect from 8.9.1965. The plaintiff has further alleged that he had been working in the said post to the satisfaction of the authority concerned all through. In normal course, the plaintiff was to be promoted to the post of Gr. I Assistant, and thereafter to higher posts. According to the plaintiff, the claim of the plaintiff as also other employees in the office of defendant No. 2 at Cuttack was ignored and a post of Junior Head Assistant in the office of defendant No. 2 was created and filled up by the management on 24.1.1972. The plaintiff having objected to the said illegal appointment, defendant No. 2 passed an illegal order of suspension against the plaintiff on 18.2.1970 for which the plaintiff filed T. S. No. 9 of 1972 against defendant No. 2. Defendant No. 2 after receipt of the summons in the suit, issued an illegal order on 24.2.1972 abolishing the post of Gr. II Asst. held by the plaintiff. It is alleged that defendant No. 2 had no jurisdiction to abolish a permanent post and to pass the aforesaid ' order without a resolution of the Board to that effect. The said order of defendant No. 2 dated 24. 2. 1972 is annexed to the plaint as Annexure-I. Defendant No. 2 by his order dated 7.3.1972 directed the plaintiff to be relieved from his duties on 7.3.1972 (afternoon) and directed him to join in the office of the General Manager as Senior Clerk Gr. II which is a separate establishment having its office at Berhampur. It is urged by the plaintiff that his service conditions as also the benefits to which he was entitled to in his former post stood altered to his prejudice by the aforesaid order dated 7.3.1972 which is annexed to the plaint as Annexure II. According, to the case of the plaintiff, the orders in Annexures-I and II of the plaint passed by defendant No. 2 are mala fide, motivated, ultra vires and beyond the power and jurisdiction, of defendant No. 2. The said orders are also challenged on the ground that the same are not in accordance with the provisions of law and in violation of the principles of natural justice. The plaintiff in this suit has prayed for a declaration that the orders given in Annexures-I and II passed by defendant No. 2 are without jurisdiction, invalid, inoperative, mala fide, contrary to law and ultra vires which do not bind the plaintiff. Some other reliefs were also prayed for which stood deleted at the instances of the plaintiff by order dated 24.4.1979 passed in the suit.

3. Defendant No. 1 has filed its written statement denying all the plaint allegations and disputing the very basis of the plaint of the plaintiff. According to defendant No. 1, all the employees of the Orissa Road Transport Company Limited belong to one unit and it is not true that the conditions of service of the employees in the office of the establishment of the Company at Berhampur are in any way separate and distinct from those, working under defendant No. 2. According to defendant No. 1, the employees of any of the offices of the O.R.T. Company can claim promotion to the higher grade in any of the other offices located at other places provided they are found qualified and suitable. It has been further pleaded that the post of Junior Head Assistant was not created on account of increased work load of the Company as alleged, but the said post was lying vacant for want of competent person and was filled up by a person suitable for the post. The allegation that there were rules or practice in vogue that an employee in the office at Cuttack should be promoted in the same office at Cuttack only has been stoutly denied in the written statement. Defendant No. 2, it is stated, is vested with the management of the Company with all the powers exercisable by the Board of Directors and that he has the power to create any post as well as the power to abolish any post in the interest of economy and better management of the Company. The order dated 24. 2. 1972 (Annexure-I) directed the plaintiff to intimate his option as to whether he desired to accept the termination of service on receipt of one month's wages or for absorption as Senior Clerk Gr. II in the office of the Company at Berhampur. The plaintiff in his representation dated 28.2.1982 agreed to join in the alternative post at Berhampur and requested for six months time. The representation of the plaintiff for extension of time was considered by defendant No. 2 and orders were passed on 7.3.1972 rejecting the prayer for extension of time as there was no longer the post of Gr. II Assistant in the Cuttack office. Defendant No. 1 has further alleged that the plaintiff by accepting the alternative employment acquiesced in the order and in estopped from challenging the order dated 24.2.1972. The plaintiff as a matter of fact was relieved from his post at Cuttack in the afternoon of 7.3.1972 and was directed to report himself for duty as Senior Clerk Gr. II in the office of the General Manager at Berhampur after expiry of the joining time. It was specifically mentioned in the said order that if he failed to join within the stipulated time, he would forfeit his right to continue in service. As the plaintiff did not join at Berhampur within the time allowed, his services stood terminated after expiry of the joining time. The plaintiff is, therefore, no longer in service with effect from 15.3.1972.

Apart from the factual aspects, as indicated above, defendant No. 1 took specific plea in the written statement that the suit is not maintainable as it amounts to an enforcement of a contract of service and that the Civil Court has no jurisdiction to try the suit as it is a dispute between the employer and the employee cognizable by the Industrial Tribunal. It was also pleaded that the suit is barred under Order 23, Rule 1, Sub-rule (4), C.P.C. inasmuch as similar suit was filed and was unconditionally withdrawn.

4. The defendants filed an application on 20.4.1978 for determination of issue No. 6 as a preliminary issue. The said prayer was opposed by the plaintiff. The trial Court rejected the prayer to take up issue No. 6 for determination as a preliminary issue against which the defendants came up in C.R. No. 439 of 1978. On 5.12.1978 this Court allowed the revision and directed the trial Court to try issue No. 6 as a preliminary issue. The trial Court having taken up issue No. 6 as a preliminary issue held that the suit is maintainable and the Civil Court has got jurisdiction to try the suit. The said order of the trial Court is impugned in this revision.

5. The sole question for consideration in this revision is as to whether the controversy between the parties amounts to an industrial dispute and, if so, whether the jurisdiction of the Civil Court is barred to entertain the present suit.

6. It is an accepted principle of law that exclusion of jurisdiction of the Civil Court is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. It is not disputed that the Industrial Disputes Act of 1947 (hereafter the 'Act') provides a special forum to deal with Industrial disputes within the meaning of the Act.

Section 2(i) of the Act defines 'industry' to mean any business, trade, undertaking, manufacture or calling of employers and to include any calling, service, employment, handicraft or industrial occupation or avocation of workmen. The Orissa Road Transport Company Limited is evidently an industry within the meaning of the Act. Similarly, the opposite party is a workman within the meaning of the definition given in Section 2(s) of the Act. The learned counsel appearing for the opposite party concedes that the opposite party having been appointed as an Assistant in the office of the Company squarely comes within the definition given in Section 2(s) of the Act and does not come within the exceptions mentioned therein. The expression 'industrial dispute' as per the definition given in Section 2(k) of the Act means any dispute or difference between employers and employers or between employers sad 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. The relief prayed for in this suit requires a determination as to whether the termination of service of the plaintiff-opposite party as per Annexures-I and II of the plaint is valid and operative. It has been already stated that under the aforesaid orders in Annexures-I and II, the Managing Director of Orissa Road Transport Company Limited intimated the plaintiff-opposite party that the post he was holding had been found to be in excess of the requirement and the said post stood abolished. Thus, the dispute of this nature comes within the scope of the definition of 'industrial dispute' as defined in the Act. This position was conceded in the trial Court by the learned counsel appearing for the plaintiff and is not disputed in this Court.

Therefore, the further question that falls for determination is whether the said industrial dispute can be entertained by the Civil Court for determination.

7. Section 9 of the Code of Civil Procedure provides that the Courts shall have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. A suit is said to be expressly barred when it is barred by an enactment for the time being in force. Where a special Tribunal is created by or under the authority of an Act of the Legislature for the purpose of determining the question as to the rights which are the creation of the Act, then the jurisdiction of that Tribunal is, unless provided otherwise, exclusive and the jurisdiction of the Civil Court is said to be impliedly barred. The Act has been enacted providing a special forum for investigation and settlement of industrial disputes. Though the Act does not spell out any express bar of the Civil Court to entertain and try industrial disputes, the jurisdiction of the Civil Court to try industrial disputes shall be taken to have been barred by 'necessary implications inasmuch as exclusive jurisdiction his been vested in the authorities under the Act to adjudicate such disputes. It had been argued by the learned counsel appearing-for the opposite party that the aforesaid principle of law that in such cases the jurisdiction of the Civil Court shall be taken to have been impliedly baired is subject to one exception. It is contended that where the right claimed is not clearly a creature of a particular Statute but is a common law right and the Statute only entrusts to a special Tribunal to adjudicate certain disputes relating to such a right, it cannot be taken to have ousted the jurisdiction of the Civil Court. The decision of the Supreme Court in the case of Premier Automobiles Ltd. v. Karalakar Shantaram Wadke and Ors., A. I. R. 1975 S.C. 2238, has been relied upon on this point. The Supreme Court after discussing the principles at great length summed up the conclusion in paragraph 23 of the judgment to the following effect:

'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 suit or concerned to encase his remedy for the relief which is competent to be granted is 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 fee 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.'

In order to fix up the category to which the plaintiff's case of termination of service fits in, some reference to the pleadings is relevant. According to the plaint averments, the post was created by the Board of Directors of defendant No. 1 and, therefore, defendant No. 2, who was the Managing Director of defendant No. 1, had no authority to abolish the post in the office at Cuttack without the approval of the Board of Directors. It has been further pleaded that the real intention of defendant No. 2 in passing the orders in Annexures-I and II was to punish the plaintiff and to create a situation for appointing a person of his own choice to the said post. According to the defendants, defendant No. 2 had been vested with all the powers exercisable by the Board of Directors and he had the power to create any post as well as to abolish any post in the interest of the Company. The defendants further pleaded that the post of Gr. II Assistant was not necessary for which the said post was abolished. In the case of Management of Karnataka State Road Transport Corporation v. B. Boraiah and Anr., (1984) 1 S.C.C. 244, Ranganath Misra, J., speaking for the Court has concluded by referring to several decisions of the Supreme Court that Section 2(oo) of the Act covers every case of termination of service except those which have been embodied in the definition. Thus, in view of the definition of retrenchment as given in the Act, termination of service of the plaintiff-opposite party by the orders of the Managing Director (Annexures-I and II) amounts to retrenchment. Section 25F of the Act enumerates the conditions precedent to be complied with by the employer before retrenching a workman. It creates a right in a workman to challenge the order of retrenchment itself as invalid and to seek reinstatement by approaching the Industrial Tribunal. He can also claim retrenchment benefits in the alternative to be computed and paid by the appropriate authority created under the Act. Thus, the dispute about the legality of the retrenchment of the plaintiff-opposite party is an industrial dispute, the remedy for which has been specifically provided for in the Act. The relief claimed in the suit is, therefore, an enforcement of the right created by the Statute itself and is not a right under the general or common law. In my view, the dispute arising between the parties does not come within category (2) referred to in paragraph 23 of the judgment of the Supreme Court in the case of Premier Antomobiles Ltd. v. Kamlakar Shantaram Wadke and Ors. (supra). In the said decision, the Court also held 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 general or common law only and not under the Act.

8. I, therefore, conclude that the present suit is not cognizable by the Civil Court. Some arguments have been advanced on the question of res judicata and estoppel. It is alleged that the plaintiff had filed a suit previously (T.S. No. 22 of 1972) in the Court of Munsif, First Court, Cuttack, for identical reliefs relying upon the very same set of facts which was withdrawn at the second appellate stage on the ground that it was an industrial dispute and the Civil Court had no jurisdiction to try the suit. The present suit is, therefore, contended to be not maintainable.

I need not go into the merits of such contention, firstly because the same did not relate to the jurisdiction of the Court arid secondly, in view of my finding that the Civil Court has no jurisdiction to entertain the suit.

9. In the result, the revision is allowed and the impugned order of the Munsif, First Court, Cuttack, is set aside. In the facts and circumstances of the case, there would be no order as to costs.


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