R.N. Mittal, J.
1. (January 30, 1978)--This appeal has been filed by the plaintiff against the order of the Senior Subordinate Judge, Rohtak, dated March 19, 1977.
2. Briefly the facts of the case are that the plaintiff was in a permanent Government service and was working as a conductor in the Transport Department of Haryana State. He was dismissed from service by the General Manger, Haryana Roadways, Rohtak, vide order dated December 14, 1973. He challenged the order of dismissal on the ground that it was illegal, void and ineffective as reasonable opportunity was not given to him to defend himself. He also pleaded that the order of dismissal was violative of Article 311 of the Constitution of India.
3. The suit was contested by the State of Haryana, inter alia, on the ground that the order was valid and that the suit was barred by limitation. The trial court held that the order of dismissal was illegal, and the suit was within limitation. It consequently decreed the suit. The State of Haryana went up in appeal before the Senior Subordinate Judge, Rohtak, and raised an argument for the first time that the civil court had no jurisdiction to entertain and try the suit. The Senior Subordinate Judge upheld the objection of the State, accepted the appeal and ordered that the plaint be returned to the plaintiff. He has come up in appeal against the order of the Senior Subordinate Judge to this Court.
4. The only question that arises for decision in this appeal is whether the civil court had jurisdiction to try this suit or not. It is contended by the learned Counsel for the appellant that the plaintiff instituted the suit challenging his dismissal on the ground that he was not given reasonable opportunity to defend himself and the order of the dismissing authority was consequently violative of Article 311 of the Constitution of India. According to the learned Counsel if there is violation of constitutional provision, the normal remedy of a citizen is by way of suit in a civil court. He, in support of his argument, has referred to Bharat Kala Bhandar Ltd. (Private) v. Municipal Committee, Dhamagaon : 59ITR73(SC) Ballabhdas Mathurdas Lakshmi v. Municipal Committee, Malkpur : AIR1970SC1002 , The Municipal Corporation, lndore v. Niyamatulla A.I.R. 1971 S.C. 97. He has further argued that even if remedy under the Industrial Disputes Act was also available to the appellant, it was in his discretion either to file a civil suit or to go to the forum provided under the Industrial Disputes Act. He has relied upon Premier Automobiles v. Kamalakar Shantaram Wadke 1975-II L.L.J. 445 : : (1975)IILLJ445SC , to buttress his arguments. On the other hand, the learned Counsel for the respondent has argued that if a remedy to the plaintiff was available under the Industrial Disputes Act, he had no right to institute the present suit. He has mainly placed reliance on my judgment in State of Punjab v. Dewarka Dass (1976) P.L.R. 92.
5. I have heard the learned Counsel at a considerable length and given a thoughtful consideration to their arguments. The Supreme Court, in Premier Automobiles' case, (supra), has laid down four principles applicable to the jurisdiction of the civil Courts in relation to the Industrial Disputes. Mr. Gaur has laid emphasis on principle No. 2, The said principle is as follows:
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.
6. According to the principle, if a dispute can be taken by a suitor to a civil Court as well as before a Tribunal under the Industrial Disputes Act, it is for him to elect either. The question still remains whether in the present case, a suit could be instituted in a civil court by the appellant. There is no direct case of the Supreme Court on this point. In Bharat Kala Bhandar's, Ballabhdas Mathurdas Lakshmi's and Niyamatulla's cases, no doubt the Supreme Court observed that for violation of a constitutional provision a civil suit was maintainable. The observations were, however, made in different sets of circumstances. A similar matter has been specifically dealt with in Dewarka Dassy case, (supra) wherein it was alleged that the services of an employee were terminated by the General Manager, Punjab Roadways, without giving him any show-cause notice, which was in contravention of the provisions of Article 311 of the Constitution of India. He challenged the order in a civil Court. I, in that case, held that the civil Court had no jurisdiction to try the suit. A Letters Patent Appeal against that judgment is pending in this Court. The matter in the present appeal is of great general importance which may affect a large number of cases. In the circumstances, it will be proper that the present appeal may be decided by a Division Bench. The papers of the appeal may, therefore, be laid before My Lord the Chief Justice for passing appropriate orders.
January 30, 1978 Sd/- Rajendra Nath Mittal,