Sumer Singh Saini vs Hindustan Machines And Tools Ltd. … on 16 December, 2009

C.R. 695 of 2008                       1


IN THE HIGH COURT    FOR THE STATES OF PUNJAB
        AND HARYANA AT CHANDIGARH.


                                           C.R. 695 of 2008
                                           Date of decision:- 16.12.2009


Sumer Singh Saini

                                                          petitioner

                          vs

Hindustan Machines and Tools Ltd. and others

                                                          Respondent

Present:     Mr. AP Bhandari, Advocate for petitioner.
             Mr. Anand Chibbar, Advocate for respondents 1 to 4


1. Whether Reporters of local papers may be allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?

M.M.S.BEDI,J.

The suit filed by the plaintiff- petitioner on 23.2.2004 has been

dismissed on 13.12.2007 under Order 7 Rule 11 CPC on an application

filed by the defendant- respondents by passing the following order:-

” So far as the application moved by the learned counsel on

behalf of the defendants under Order 7 Rule 11 CPC is

concerned, the same is allowed because the plaintiff has left

with no cause of action in the present case as the amendment

application filed by the plaintiff is dismissed by the court of the

undersigned. The plaintiff has already been dismissed from

service w.e.f. 17.9.2005. The plaintiff has invoked the

jurisdiction of the Industrial Disputes Tribunal, wherein he has

challenged his termination and also claimed the relief which is

the subject matter of the present suit. Therefore, the

application of the applicant- defendants under Order 7 Rule 11
C.R. 695 of 2008 2

CPC is allowed and the plaint of the plaintiff is rejected. File

after due compliance be consigned to the record-room.”

I have heard learned counsel for the petitioner as well as

counsel for respondents 1 to 4. The relief, which was claimed by the

plaintiff- petitioner in his suit was for a mandatory injunction directing the

defendant- respondents 1 to 4 to promote him as a Supervisor/WS I/ PS II

with all benefits of seniority with due increments of 2002 and 2003 and also

seeking the payment of salary from December 2001 to December 2002

along with interest and other benefits accruing therefrom. It was during the

pendency of the suit that the plaintiff, for the same reasons, has been

dismissed from service w.e.f. 17.9.2005. The dispute regarding the validity

of dismissal order is the subject matter of a dispute pending before the

Industrial Disputes Tribunal sequel to the reference u/s 10 of the Industrial

Disputes Act.

Learned counsel for respondents 1 to 4 has not been able to

satisfy this court that the subject matter of the suit, filed by the plaintiff, also

constitutes a part of the reference made against the dismissal order. The

trial court has not considered the said circumstance while allowing the

application under Order 7 Rule 11 CPC filed by the defendant-

respondents. Learned counsel has vehemently urged that the civil court

does not have any jurisdiction to grant the relief prayed for by the plaintiff,

as such the suit of the plaintiff had been rightly dismissed in exercise of

powers under Order 7 Rule 11 CPC.

There is no dispute regarding the ambit of jurisdiction the

Industrial Disputes Tribunal and the jurisdiction of the civil court in the

matters of violation of civil rights of the citizens. The plea regarding the

absence of the jurisdiction of the civil court in the subject matter, sought to

be adjudicated by the plaintiff in the present suit, could have been taken by

the defendant- respondents in the written statement. Learned counsel for
C.R. 695 of 2008 3

respondents 1 to 4 informs that this plea has been raised before the civil

court besides contesting the suit of the plaintiff- petitioner on merits. A

perusal of the order dated 13.12.2007, passed by the trial court, indicates

that the dismissal of the plaintiff from service on 17.9.2005, subsequent to

the filing of the suit, has inter alia weighed with the trial court while

dismissing the suit. The impugned order, on the face of it, is not

sustainable. It was open to the trial court to dismiss the suit on merits after

considering the legal and factual position, arising out of the pleadings and

the evidence but shutting the doors of the court after three years of the

plaintiff having filed the suit merely on the basis of the subsequent event, is

not appropriate.

In view of the above, the revision petition is allowed and

impugned order dated 13.12.2007 is hereby set aside without expression of

any opinion on merits of the case. The trial court is directed to take up the

further proceedings in accordance with law. Anything said in this order, will

not, in any manner, prejudice the rights of the parties at the time of final

adjudication of the matter. The trial court will take up the matter after

issuing notices to the other affected parties. Learned counsel for the

petitioner has submitted that the application for amendment of the plaint

has been dismissed vide the same impugned order. It will be open to the

trial court to reconsider the said application and pass any appropriate

order.

December 16 ,2009                                     (M.M.S.BEDI)
TSM                                                       JUDGE