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Titagarh Jute Factory Co. Limited Vs. Sriram Tiwari - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Judge
Reported in(1979)ILLJ495Cal
AppellantTitagarh Jute Factory Co. Limited
RespondentSriram Tiwari
Cases Referred and Workers of Dewan Tea Estate v. Their Management
Excerpt:
- .....when the factory refused to accept the aforesaid contention of the plaintiff, the latter filed the present suit challenging the validity of the notice contained in the said letter dated june 30, 1977, on the ground that the plaintiff would not attain the age of 58 years as alleged, for, he was born on august 20, 1922. the plaintiff also asserted that the said order contained in the notice referred to above was not supported by any record with respect to the plaintiff's date of birth, that the order violated the principles of natural justice as the plaintiff was not given an opportunity of being heard before the order was made, that the standing order would not apply to him as he joined the service sometime in 1943 before the passing of the industrial employment (standing orders) act,.....
Judgment:
ORDER

D.C. Chakravorti, J.

1. This Rule is directed against Order No. 26 dated August 28, 1978 made by the learned Munsif, 4th Court at Sealdah, while disposing of one preliminary issue, namely, whether the suit was maintainable.

2. The learned Munsif found that the suit was maintainable and the defendant on being aggrieved by the impugned order made the present application under Section 115 of the Code of Civil Procedure.

3. The facts relevant, for our purposes may briefly be stated as follows:

The plaintiff-opposite party was an employee of the defendant-petitioner, namely, the Titagarh Jute Factory Co. Ltd. No. 1 Mill, (hereinafter referred to as the factory). The factory by a letter dated June 30, 1977 intimated the plaintiff that he would be retiring on Aug. 1, 1977, on completion of the age of superannuation which was 58 years as per Clause 14(c) of the Standing Orders. The plaintiff wrote to the factory in reply to the said letter stating that his date of birth was August 20, 1922 and that accordingly on August 1, 1977 he would not be attaining the stipulated age of superannuation as per standing orders. When the factory refused to accept the aforesaid contention of the plaintiff, the latter filed the present suit challenging the validity of the notice contained in the said letter dated June 30, 1977, on the ground that the plaintiff would not attain the age of 58 years as alleged, for, he was born on August 20, 1922. The plaintiff also asserted that the said order contained in the notice referred to above was not supported by any record with respect to the plaintiff's date of birth, that the order violated the principles of natural justice as the plaintiff was not given an opportunity of being heard before the order was made, that the standing order would not apply to him as he joined the service sometime in 1943 before the passing of the Industrial Employment (Standing Orders) Act, 1946 and that the said notice was ineffective as it did not give the plaintiff one clear month's notice, for, the notice was served on him on July 2, 1977.

4. The factory's defence was that the civil Courts had no jurisdiction to entertain the suit which involved an industrial dispute and the Court's jurisdiction was accordingly barred by implication according to the provisions of Section 9 of the Code of Civil Procedure and that the Court could not grant the relief asked for in view of the provisions of Section 14 of the Specific Relief Act, 1963.

5. The learned Munsif held that the suit did not involve any industrial dispute and that the provisions of Section 14 of the Specific Relief Act had no application to the facts and circumstances of this case. He also held that the civil Court could assume jurisdiction in cases where there had been violation of the principles of natural justice or statutory provisions. In this view of the matter the learned Munsif found that the suit was maintainable.

6. Mr. Mukul Prokash Banerjee, the learned advocate for the petitioner argued that the Court below in this case exercised jurisdiction not vested in it by law inasmuch as the suit involved an industrial dispute and it was as such beyond the jurisdiction of the civil Court. Whether or not the question raised by the pleadings in this case involves an industrial dispute has to be determined with reference to the provisions of the Industrial Disputes Act,1947 (hereinafter referred to as the Act). Clause (k) of Section 2 and Section 2A of the Act are relevant in this regard and they are set out hereunder:

(k) 'Industrial dispute' means any dispute or difference between employers and employers or between employers and 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;

2A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute:Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workman is a party to the dispute.

7. In substance what the plaintiff-opposite party alleges in his plaint is that he did not attain 58 years of age on the expiry of the month of July, 1977, and his date of superannuation would not be August, 1, 1977, inasmuch as according to him, he was born on August 20, 1922. To put it in other words, according to the plaintiff he would attain the age of 58 years on August 19, 1980, and thus his date of retirement, according to him would be August 20, 1980, if the computation is made taking his date of birth to be August 20, 1922. It is now acknowledged on all hands that the Act is a legislation relating to what is known as 'collective bargaining ' in the economic field. This policy of the Legislature is also implicit in the definition of ' industrial dispute ' as contained in Section 2(k) referred to above. Before a dispute between the employer and the workman may become an industrial dispute within the meaning of Section (k) such dispute though one arising between employer and employee must be sponsored either by the workmen's union or by a number of workmen. This view finds support from the decision in Central Provinces Transport Service Ltd. Nagpur v. Raghunath Gopal Patwardhan : (1957)ILLJ27SC . The relevant observation made in that decision may be quoted hereunder (at p.' 109):

Notwithstanding that the language of Section 2(k) is wide enough to cover a dispute between an employer and a single employee, the scheme of the Industrial Disputes Act does appear to contemplate that the machinery provided therein should be set in motion, to settle only the disputes which involve the rights of workmen as a class and that a dispute touching the individual rights of a workman was not intended to be the subject of an adjudication under the Act, when the same had not been taken up by the union or a number of workmen.

8. Thus it appears from what is stated above that under said Clause (k) an individual dispute does not become an industrial dispute till such dispute is taken up either by the union or a number of workmen. In the present case, therefore, the dispute raised by the plaintiff alone and not taken up by either the union or a number or workmen cannot be called an industrial dispute within the meaning of said Clause (k).

9. Mr. Banerjee, appearing in support of the Rule contended that even though the dispute in the present case may not be an industrial dispute under Clause (k), it becomes an industrial dispute in view of the provisions of Section 2A. The said Section 2A was introduced by the Amending Act Number 35 of 1965. The provision of Section 2A has to be read along with said Clause (k) for ascertaining whether an individual dispute not championed by the union or by a number of workmen is an industrial dispute. The said Section 2A came into force on December 1, 1965 and the present suit was instituted on July 26,1977. There can therefore, be no doubt that Section 2A shall have to be taken into consideration in determining whether the question involved suit gives rise to an industrial dispute. Thus, after the introduction of Section 2A an individual dispute though not sponsored by other workmen or espoused by the union would be deemed to be an industrial dispute within the meaning of the Act but whether a particular dispute amounts to an industrial dispute has to be ascertained with reference to the principle laid down in said Clause (k), for, so far as the subject-matter of the dispute is concerned 2A does not bring about any change. That has to be determined with reference to the provisions of Clause (k). The only change that was brought about by Section 2A is this that prior to its introduction a dispute even though it was an industrial dispute according to the subject-matter referred to in Clause (k) would not have become an industrial dispute if it were only an individual dispute not taken up either by the union or by a substantial body of workmen but after the introduction of Section 2A such a dispute would be an industrial dispute though it is not sponsored by a union of workmen or by a number of them.

10. According to Clause (k) a dispute or difference between the employers and workmen will be an industrial dispute when such dispute is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. In the present case, the dispute in question, the nature of which has earlier been set out, cannot be called a dispute which is connected with the conditions of labour. It has to be seen whether the present dispute is one which is connected with the employment or non-employment or the terms of employment.

11. The question whether the Industrial Tribunal can interfere with an employer's right to terminate the services of a workman in exercise of the employer's contractual right came up before the Tribunals and also before the Supreme Court. Such a right of the employer to terminate the services of a workman in accordance with the contract between them has been recognised but it has been laid down in Assam Oil Co. Ltd. v. Its Workmen : (1960)ILLJ587SC , that if the contract gives the employer the power to terminate the service of his employees after a month's notice or subject to some other conditions it would be open to him to take recourse to the said term or condition and terminate the services of the workman but when the validity of such termination is challenged in industrial adjudication it would be competent to the Industrial Tribunal to enquire whether the impugned termination has been effected in the bona fide exercise of the power conferred by the contract. This was also the decision in Chartered Bank, Bombay v. Chartered Bank Employees' Union : (1960)IILLJ222SC ]. The words 'employment or non-employment' appearing in Clause (k) are of the widest amplitude and they make the definition of industrial dispute thoroughly comprehensive. Further the words ' connected with ' also appearing there instead of, in any way, restricting the scope of what is industrial dispute, widen it. According to the decision in Western India Automobile Association v. Industrial Tribunal A.I.R. 1949 F.C. 111, any dispute 'connected with' employment or non-employment would ordinarily cover all matters that require settlement between workmen and employers, whether those matters concerned the causes of their being out of service or any other question. The question whether a person has been superseded or not, whether he was entitled to promotion or not, whether a person was wrongfully retrenched and whether there was wrongful refusal to re-instate are all questions which would be comprehended within the meaning of the words 'employment or non-employment ' appearing in Clause (k) (vide Upper Doab Sugar Mills Ltd. v. State of U.P. 1962-I L.L.J. 1, (All). Western India Automobile Association v. Industrial Tribunal (supra) and Fedders Lloyed Corporation (P) Ltd. v. Lt. Governor, Delhi : AIR1970Delhi60 . In the present case, as already pointed out, if the stand taken by the workman be found to be not correct the workman was lawfully required to retire on August 1, 1977. In view of the principles discussed above it cannot but be held that the question raised in the present suit is of the nature of an industrial dispute, for, the question is one connected with the employment or non-employment of the workman. Further, as already pointed out, though this is an individual dispute not espoused either by the union or a substantial number of workmen it would be an industrial dispute within the meaning of Section 2A.

12. Mr. Banerjee further argued that when the dispute in question is an industrial dispute, the jurisdiction of civil Court is barred and that the Court below, therefore, has no jurisdiction to try the present suit. In support of this contention of his he places reliance on the decision in Premier Automobiles Ltd. v. Kamalakar Shantaram : (1975)IILLJ445SC . In that case the following principles have been laid down for ascertaining whether the jurisdiction of the civil Court is barred or not (at p. 2251):

1. If the dispute is not an industrial dispute, nor does it relate to the enforcement of any other right under the Act, 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 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 suit or 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 Section 33C or the raising of an industrial dispute, as the case may be.

13. The present dispute as has already been found is an industrial dispute. Further, having regard to the nature of the dispute it may very well be said that the dispute arises out of aright or liability under the general or common law and not under the Act. In the present case, as already stated, the contention of the plaintiff-opposite party is that he was born on August 20, 1922 and did not as such attain the age of 58 years on August 1, 1977. In other words, according to him, he would attain the age of 58 years on August 20, 1980. That precisely is the plaintiff's case even though he has challenged the applicability of Clause, 13(c)of the standing orders of the factory. He has not made out any specific case that he was not to retire on attaining the age of 58 years. Further it is his case that there is no basis for holding that he was born on August 1, 1919, and that accordingly he could not be required to retire on August 1, 1977. The plaint, therefore, primarily raises a dispute as to whether the plaintiff was born on August 20, 1922 or August 1, 1919. This is a dispute which may very well be raised before the civil Court in as much as even though the dispute may be in the nature of an industrial dispute there is no specific provision in the Act barring the jurisdiction of the civil Court to decide a dispute of the kind raised in this case. In that view of the matter it ought to be held that the present suit is maintainable in a civil Court.

14. Further, the following material observation of the Supreme Court (at paragraph 9)In Premier Automobiles v. Kamalakar Shantaram A.I.R. 1975 S.C. 2283 (supra) would also show that the civil Court's jurisdiction to entertain a suit like the present one is not ousted. The relevant observation is as follows (at p. 2243):

It would thus be seen that through the intervention of the appropriate Government, of course not directly, a very extensive machinery has been provided for settlement and adjudication of industrial disputes. But since an individual aggrieved cannot approach the Tribunal or the Labour Court-directly for the redress of his grievance without the intervention of the Government, it is legitimate to take the view that the remedy provided under the Act is not such as to completely oust the jurisdiction of the civil Court for trial of industrial disputes. If the dispute is not an industrial dispute within the meaning of Section 2(k) or within the meaning of Section 2A of the Act, it is obvious that there is no provision for adjudication of such disputes under the Act. Civil Courts will be the proper forum. But where the industrial dispute is for the purpose of enforcing any right, obligation or liability under the general law or the common law and not a right, obligation or liability created under the Act, alternative forums are there giving an election of the suitor to choose his remedy of either moving the machinery under the Act or to approach the civil Court. It is plain that he cannot have both. He has to choose the one or the other.

15. Thus, though after the introduction of Section 2A even an individual dispute not sponsored by the union or by a substantial number of workmen may become an industrial dispute an individual aggrieved cannot even now approach the Tribunal or the Labour Court directly for the redress of his grievance without the intervention of the Government. Having regard to the view taken by the Supreme Court as appearing from the passage quoted above, in the circumstances of the present case, the civil Court's jurisdiction is not taken away so far as the present suit is concerned.

16. As already pointed out, on behalf of the plaintiff-opposite party it was also urged that he was not bound by anything 'contained in the Standing Orders inasmuch as he joined the service sometime in 1943, before the passing of the Industrial Employment (Standing Orders) Act, 1946, under which the Standing Order in question was framed and certified. In view of the decision in Salem-Erode Electricity Distribution Co. (P) Ltd. v. Their Employees Union : (1966)ILLJ443SC , which was approved of in other Supreme Court decisions, namely, Agra Electric Supply Co. Ltd. v. Alladin : (1969)IILLJ540SC , Avery India Ltd. v. Second Industrial Tribunal, West Bengal 1972-II L.L.J. 255 : (1972) L.I.C. 873 and U.P. Electric Co. Ltd., Allahabad v. T. N. Chatterjee 1972-II L.L.J.9 (1972) L.I.C. 644, it has to be held that the standing orders after their due certification shall apply to all workmen employed in an industrial establishment whether or not they entered such establishment after or before such certification. The reason, inter alia, is that there should be uniform standing orders applicable to all workmen. There cannot be different sets of standing orders governing the terms and conditions of workmen of a particular industrial establishment. The view taken in this regard in the case of Guest Keen Williams Pvt. Ltd. v. P. J. Sterling : (1959)IILLJ405SC , is no longer good law. The present law on the question now before me is summed up in the following passage appearing in Agra Electric Supply Co. Ltd. v. Alladin (supra) (at p. 416 of Lab IC):

This decision thus confirms the view taken by us that the object of the Act (meaning Industrial Employment (Standing Orders), Act, 1946) is to have uniform standing orders providing for the matters enumerated in the Schedule to the Act, that it was not intended that there should be different conditions of service for those who are employed before and those employed after the standing orders came into force and finally, that once, the standing orders came into force they bind all those presently in the employment of the concerned establishment as well as those who are appointed thereafter.

17. The relevant clause, namely, Clause (c) of paragraph 13 of the standing orders of the petitioner-company is as follows:

(c) Age of retirement of men workers shall be 58 years and of women workers 55 years. It will, however, be open to the employers to retain workers in service beyond this age but this should be without prejudice to the right of the workers to claim gratuity for the period of service, if any, prior to the introduction of the Provident Fund Scheme.'

18. In view of what is stated above, I cannot but hold that said Clause (c) of paragraph 13 of the Standing Orders of the petitioner factory will be binding on workmen employed before or after the certification of the said standing orders. Be it noted here that due certification of standing orders was not challenged. In this view of the matter the plaintiff-opposite party is to retire on the attainment of 58 years of age. I have already pointed out that though the application of the standing orders of the factory to the plaintiff-opposite party was challenged it was done only halfheartedly particularly, in view of the fact that the plaintiff-opposite party's specific case is that he was not born on the date which was taken by the company to be the date of his birth but that he was born on August 20, 1922 and that accordingly he did not attain the age of 58 years on Aug. 1, 1977.

19. It was further contended by Mr. Banerjee, the learned advocate for the petitioner, that the present suit being one for enforcing a contract of service, is not maintainable in view of the provisions of Section 14(1)(b) of the Specific Relief Act, 1963 and that permanent injunction cannot be asked for under Sections 38 and 41(e) of that Act. It is now well-settled by different decisions of Courts here in India and also in England that even if a contract of employment is wrongly repudiated by either the employer or the employee, Courts of law would not pass a decree for specific performance of such a contract and force either the employer to retain the employee in service or force the employee to join service. There are certain exceptional cases where a declaration to enforce a contract of personal service or a declaration that the dismissal of an employee is invalid and is a nullity can be granted. Those exceptional cases may be enumerated as follows:

When a public servant has been dismissed in contravention of the provisions of Article 311 of the Constitution;

2. When Industrial Law permits the re-instatement of a dismissed workmen and

3. When a statutory body acted in violation of mandatory obligation imposed by the statute.

20. Standing orders which have been certified under the Industrial Employment (Standing Orders) Act, 1946 become part of the statutory terms and conditions of service between the employer and employees and they will govern the relations between the parties (vide Workers in Buckingham Karnatic Mills, Madras v. Buckigham Karnatic Mills 1970-I L.L.J. 26 and Workers of Dewan Tea Estate v. Their Management : (1964)ILLJ358SC . in the present case, as already stated, the case of the plaintiff-opposite party is that the notice served on him by the defendant-petitioner was invalid inasmuch as the plaintiff-opposite party did not attain the age of superannuation which is 58 years on Aug, 1, 1977, for his date of birth was Aug. 20, 1922. Clause (c) of paragraph 13 of the standing orders of the defendant factory which has been set out herein-before shows that the age of retirement of male workers shall be 58 years. This provision contained in the standing orders is one of the statutory terms and conditions of service in the present case. Accordingly, if the plaintiff-opposite party did attain 58 years of age on August 1, 1977, the factory would be justified in requiring him to retire on that date but if on the other hand the contention of the plaintiff-opposite party that he was born on August 20, 1922 is correct, the notice requiring him to retire on August 1, 1977 would be bad inasmuch as it violates the statutory term contained in Clause (c) of paragraph 13 of the standing orders. Therefore, such a question as is raised in the present suit is not tantamount to asking for enforcement of a contract of personal service or, for the matter of that for re-instatement. Accordingly, the provision of Section 14(1)(b) of the Specific Relief Act, 1963, is no bar and such a suit is entertain able by a Court of law.

21. Section 38(1) of the Specific Relief Act, 1963, provides that subject to the other provisions contained in or referred to by the Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. According to Section 41(e), an injuction cannot be granted to prevent the breach of contract, the performance of which would not be sepcifically enforced. In the present case, as already explained, perpetual injunction was asked for with a view to preventing the breach of a statutory and not merely contractual obligation which the defendant-factory had in favour of the plaintiff. In view of Clause (c) of paragraph 13 of the standing orders the defendant was under a statutory obligation to permit the plaintiff to continue in service till he attains the age of 58 years except in cases where, however, the plaintiff is liable to be legally dismissed, discharged or retrenched or his services may be otherwise legally terminated. The defence taken in this case does not disclose any such case of dismissal, discharge, retrenchment or termination of any other kind. In the circumstances aforesaid, the present suit is not hit by any of the aforesaid provisions of the Specific Relief Act, 1963.

22. Mr. Banerjee's further contention was that in substances the present suit was one for re-instatement of the plaintiff in the employment of the defendant-factory and that accordingly such a suit would not lie and the proper action in the circumstances of the case would be one for damages if the order requiring him to retire on August 1, 1977 were bad. In view of what has been stated in the foregoing paragraph of this, my judgment, I consider it not necessary to reiterate what has already been stated. It would suffice to say that the present suit cannot be said to be one for re-instatement ; this is a suit where the plaintiff claims that he would not attain the age of 58 years on August 1, 1977 as his date of birth was Aug. 20, 1922.

23. No other question was raised in this case on behalf of the petitioner.

24. In the circumstances aforesaid I hold in agreement with the trial Court that the Court has jurisdiction to hear the present suit.

25. The Rule is accordingly discharged. There will, however, be no order as to costs.

26. The hearing of the suit be expedited.


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