M.P. Thakkar, J.
1. Two question arise in this petition by an employee of a Nagarpalika who was dismissed from service pursuant to an order which was held to be null and void by a competent Court namely:
(1) Whether the right to invoke the jurisdiction of the Labour Court by way of a Recovery Application under Section 33C(2) of the Industrial Disputes Act, 1947 is lost in case the employee concerned has failed to claim the relief for wages in the suit in which the impugned order of dismissal was held to be void?
(2) Whether a Nagarpalika which is a 'State' within the meaning of Article 12 of the Constitution of India should raise such an immoral and unethical plea of a technical nature in disregard of the demands of justice?
2. So far as the first question is concerned, the Labour Court at Surat has rejected the recovery application made by the petitioner under Section 33C(2) of the Industrial Disputes Act, 1947 by the impugned order at Annexure 'A' dated 4-3-78 mainly on the ground that the petitioner having failed to claim the relief for wages subsequent to the date of the institution of the suit, in the suit instituted by him challenging the legality and validity of the order of dismissal, the claim became barred under Order 2 Rule 2 of the Code of Civil Procedure and that the recovery application deserved to be rejected on that score. The facts of course are not in dispute. The petitioner instituted Civil Suit No. 251/68 challenging the legality and validity of the impugned order of dismissal dated June, 10, 1968. The Suit was instituted on December 18, 1968. The petitioner did not claim a decree for salary prior to the institution of the suit or for the period subsequent to the institution of the suit by way of a con sequential relief. His suit was restricted to a prayer for a declaration that the impugned order was illegal, unconstitutional, null and void. On July 31, 1972 a decree in his favour granting the declaration claimed by him was passed. This decision was subsequently confirmed by the appellate Court and became final as between the parties. In the backdrop of these facts it was contended that the recovery application made by the petitioner was barred, which contention as mentioned earlier found favour with the Labour Court.
3. Now, the embargo created by Order 2 Rule 2 of the Civil Procedure Code would be attracted if a subsequent suit was instituted for claiming a erlief which was not claimed in the-earlier suit. Order 2 Rule 2 debars plaintiff from instituting a fresh civil suit for claiming the reliefs which he could have claimed and yet failed to claim in the earlier civil suit. The provision of Order 2 Rule 2 and the technical bar created by it will not apply to a subsequent proceeding instituted under Section 33C(2) of Industrial Disputes Act. Why? Because (1) Order 2 Rule 2 does not apply pro-prio vigore to a proceeding under the Industrial Disputes Act and (2) Because what is subsequently instituted is not a civil suit but a proceeding under Section 33C(2) of Industrial Dispute Act, The bar is created in order to foreclose a recourse to the same forum (civil suit in a Civil Court). Not in order to bar all remedy under all statutes. Under the circumstances, it cannot be said that the right to invoke the jurisdiction of the Labour Court under Section 33C(2) is lost merely because the petitioner has lost a right to institute a fresh civil suit claiming the reliefs which he has claimed in the recovery application giving rise to the present petition. It may be realised that the extinguishment of a right is one thing, the extinguishment of a particular remedy is another. The remedy by way of a civil suit was lost because the relief for wages was not claimed in the earlier suit by reason of the embargo created by Order 2 Rule 2 of Code of Civil Procedure. What was lost was merely the remedy by way of a suit. Neither the right was extinguished nor the alternative remedy of making recourse to Section 33C(2) of the Industrial Disputes Act was extinguished. We are buttressed in the view that we are taking by a decision of the High Court of Mysore which has also taken the same view see Town Municipal Council v. Mirzabhai (1968) 1 L.L.J. 785.
4. We may also at this juncture deal with another argument urged on behalf of the Nagarpalika which found favour with the Labour Court. It was argued that in view of the law laid down in Premier Automobiles v. K.S. Wadke : (1975)IILLJ445SC , the petitioner could have pursued one of the two alternative remedies, but having chosen one forum viz. that of Civil Court, it was not open to the petitioner to invoke the jurisdiction of the Labour Court under the Industrial Disputes Act. There is a basic fallacy in this reasoning which the Labour Court failed to espy. In regard to the declaration that the impugned order of dismissal was void, the petitioner had selected the forum of Civil Court. It is not in the same connection that he now wants to invoke the jurisdiction of the Labour Court. That matter is finally concluded in favour of the petitioner. What is now the subject-matter of the dispute is the claim for salary for the period during which he was deemed to have continued in service in the context of the declaration granted by the Civil Court. In regard to this relief the plaintiff has not made recourse to the Civil Court. If he had made recourse, he would have obtained a decree in his favour and the question of bar of Order 2 Rule 2 could not have and would not have arisen. Since he did not make recourse to the forum of the Civil Court, it cannot be said that he has exercised his option to choose the alternative remedy. The question of alternative remedy arose at the conclusion of the trial because the petitioner obtained a declaration that the order of dismissal was void. At that point of time he had two courses open to him in order to claim the salary for the relevant period. One was to file a civil suit. And another was to approach the Labour Court. He has opted for the second course which was open to him. The view taken by the Labour Court is built on a misconception. Under the circumstances, it is abundantly clear that the Labour Court has committed an error apparent on the face of the record in rejecting the application of the petitioner in limine on the ground of lack of jurisdiction.
5. Before parting with the matter, some observations are called for having regard to the fact that the Nagarpalika which is a 'State' within the meaning of Article 12 of the Constitution of India thought it right and proper to resist the application on the technical plea as regards the bar of Order 2 Rule 2. The Nagarpalika failed to realise that the petitioner was visited with considerable misery in view of the order of dismissal. He was obliged to remain without salary. He was deprived of the means of his livelihood. So also he was denied work which is food for life. His family also had to suffer immense misery. And all this happened because the Nagarpalika was guilty of passing an illegal order of dismissal. When that order was voided, the petitioner instantaneously became entitled to his salary by virtue of the declaration granted by the Court that the order of dismissal was non-existent in the eye of law and the petitioner continued to be in the service of the Nagarpalika. The salary due to the petitioner could not have, therefore, been denied on any moral consideration. Not at any rate by the State which unlike a private litigant has to act in an ethical framework. Power which flows in the veins of the State has its source in the power house of the people. Do the people authorise the State to wield power in order to promote injustice? What does it gain (even if it saves a few thousand rupees') if it loses its ethical face? Why should the State constitute Courts to remove injustice at the cost of public exchequer if the State itself is bent on doing injustice whenever an opportunity presents itself, and to litigate at the cost of the very public exchequer? To pay to its lawyers rather then to compensate the victims of its own wrongdoing? The sum and substance is that the Nagarpalika should not have wasted public funds in order to deprive an employee who had suffered injustice at its own hands of his just dues. For, it would amount to adding insult to injury. The Municipality is an elected body and represents the collective conscience of the people who do not want that injustice be done to another citizen on behalf of the authority which is exercising the collective weal of the people. That the attitude of the Municipality is improper will be realised if the observations made by the highest Court of the country, namely, the Supreme Court of India in Bilbagh Bau Jerry v. Union of India and Ors. : (1974)ILLJ164SC are taken into account. Says the Supreme Court in the above case:
The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for, the State's interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The 'State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, government shows a willingness to settle the dispute regardless of prestige and other lesser motivations which move private parties to fight in court. The lay-out on litigation costs and executive time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the methods of not being tempted into forensic show-downs where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957. This second appeal strikes me as an instance of disregard of that policy.
The Supreme Court further observed:
All these words from the Bench, hopefully addressed to a responsive Government, may, if seasonable reactions follow, go a long way to avoidance of governmental litigiousness and affirmance of the image of the State as deeply concerned only in justice-Social Justice. The phyrric victory of the poor appellant in this case is a sad justification for the above observations.
Is it all in vain? What (in the words of Tolstoy) shall we then do?
6. In the result, the petition is allowed. Impugned order at Annexure 'A' to the extent that the Recovery Application made by the petitioner is rejected, is quashed and set aside. The matter will now go back to the Labour Court for proceeding further in accordance with law on merits. The Labour Court will render its decision within thirty days of the receipt of the record-according top priority to this matter having regard to its checkered history. fRule is made absolute to this extent. No order regarding costs.