ORDER
G.S. Singhvi, J.
1. The two petitioners with common name, Jagdish Narain Sharma, have jointly filed this revision petition against the order dated February 7, 1992 passed by the Additional District Judge No. 1, Kota, dismissing their appeal against the order dated December 10, 1991 passed by the Additional Munsiff and Judicial Magistrate (I), Kota (South) refusing to grant temporary injunction in their favour.
2. Briefly stated, the facts of the case are that the petitioner Jagdish Narain Sharma son of Shri Bhorelal was employed as Operator in Li-notrone Department of Rajasthan Patrika, Kota and Jagdish Narain son of Ghasi Lal was employed as Pester in the Pesting Department of Rajasthan Patrika, Kota. Both the petitioners were transferred to Bikaner and Udaipur respectively on December 7, 1991 without their consent. The plaintiffs-petitioners alleged that the order of transfer had been passed unlawfully and with mala fide intention of victimising the plaintiffs-petitioners for their union activities. The whole object of effecting transfer was to stultify activities of the Union which had been established by the plaintiffs-petitioners in association with other workers of Kota. The plaintiffs-petitioners also claimed that the transfer of the employees could not be effected from factory to a department or office and the action of the Management of Rajasthan Patrika Ltd. was contrary to the provisions contained in certified standing orders framed under the Industrial Employment (Standing Orders) Act, 1946. With these allegations the plaintiffs-petitioners filed a suit for permanent injunction and sought prayer that the non-petitioners be restrained from transferring them to any other place. Application for grant of temporary injunction was also filed by the plaintiffs-petitioners with a prayer that the defendants-non-petitioners be restrained from transferring them to any other place.
3. The non-petitioners contested the application for temporary injunction filed by the petitioners by alleging that the service conditions of the petitioners were governed by the provisions of the Industrial Disputes Act, 1947 and the Industrial Employment Standing Orders Act, 1946 and the petitioners fall within the definition of the term ‘workman’ under Section 2(s) of 1947 Act. They had a specific remedy available to them under the provisions of 1947 Act because that Act is a special enactment and jurisdiction of the Civil Court is barred in those matters, in respect of which adjudication can be made under the provisions of 1947 Act. The non-petitioners also claimed that the transfer of the petitioners had been effected in accordance with the provisions contained in the Certified Standing Orders. The transfer had not been effected with any malice. Rather the transfer had been effected for administrative reasons and it was permissible for the non-petitioners to effect transfer of employees from one place to another, because Rajasthan Patrika had its offices at different places.
4. After considering the pleadings of the parties and after having considered the rival contentions the learned Additional Munsiff No. 1 (South), Kota held that he had no jurisdiction to hear the claim of the petitioner, for cancellation of the transfer or for grant of injunction because of the provisions of the Industrial Disputes Act, 1947. He placed reliance on the decision of the Supreme Court in the Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke (1975-II-LLJ-445). Learned Munsiff also held that the plaintiffs- petitioners had failed to make out a prima facie case of mala fide and that the transfer was an incidence of service. Therefore, there was no justification for grant of stay in favour of the petitioners.
5. In appeal, the learned Additional District Judge has also expressed the view that the suit filed by the petitioners was not maintainable and that the transfer had not been effected on account of any malice. He also held that once the petitioners had been relieved, the application for grant of injunction had become infructuous and, therefore, no relief could be given to the petitioners.
6. Shri R.K. Kala, learned counsel for the non-petitioners, has reiterated preliminary objection regarding the maintainability of the suit in Civil Court against the impugned action of transfer and has urged that this revision petition is also not maintainable under Section 115, C.P.C. Shri Kala placed reliance on the decisions of the Supreme Court in Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke (supra), Jitendra Nath Biswas v. Empire of India and Ceylon Tea Co., (1989-II-LLJ-572) and a recent decision of Madras High Court in Tamil Nadu Mercantile Bank Ltd. v. T. Venkatesan, 1992 Lab LR 544. On the strength of these decisions Shri Kala argued that the matter relating to transfer of a person employed in an industry is specified in the Schedule appended to the Industrial Disputes Act, 1947, and, therefore, any dispute relating to the matter of transfer can be agitated before an appropriate adjudicating authority under the Industrial Disputes Act, 1947. He urged, in all matters enumerated in the Schedules appended to 1947 Act, exclusive remedy is available under that Act and, when remedy is available to the employees under the special enactment like the Industrial Disputes Act, 1947, the Civil Court cannot entertain the suit in respect of such matters.
7. Shri P.K. Shanna, learned counsel for the petitioners, on the other hand, forcefully argued that exclusion of jurisdiction of the Civil Court must not ordinarily be inferred by the Court. He submitted that the Labour Court. Tribunal or the National Tribunal can entertain a dispute referred to it for adjudication only when it is an industrial dispute and not otherwise. None of these adjudicating bodies have got jurisdiction to go into the merits or demerits of the claim which does not fall within the ambit of the term “industrial dispute” under Section 2(k) of 1947 Act, Shri Sharma argued that all matters enumerated in the schedule appended to 1947 Act do not necessarily constitute ‘industrial dispute’ for the purpose of Section 2(k) and, therefore, in such matters which are not covered by the definition of the term ‘industrial dispute’ Civil Court has jurisdiction to adjudicate the rights of an individual.
8. Section 2(k) defines the term ‘industrial dispute’. Till 1957 there was a conflict of opinion amongst the High Courts as to whether an individual dispute can be regarded as an ‘industrial dispute’. Some High Courts and Tribunals took the view that a dispute between an employer and a single workman cannot be an ‘industrial dispute’. Others took the view that it can be an ‘industrial dispute’. In yet another category of cases, it was held that such cases cannot per se be ‘industrial dispute’, but, may become ‘industrial dispute’ if taken up by a Trade Union or large number of workmen. In Central Provinces Transport Service Ltd. v. Raghunath Gopal Patwardhan (1957-I-LLJ-27), their Lordships of the Supreme Court adopted the third view and held that an individual dispute cannot ordinarily be treated as an industrial dispute. However, if such dispute is espoused by a Union or substantial number of workmen employed in the establishment, such dispute will be treated as an ‘industrial dispute’. Same view was reiterated in Workmen v. Dharampal Prem Chand (1965-I-LLJ-668) and Workmen of Indian Express Newspapers Pvt. Ltd. v. Management of Indian Express Pvt. Ltd. (1970-II-LLJ-132).
9. These decisions caused hardship to an individual workman particularly in matters relating to his dismissal, discharge, retrenchment etc. because individual workman could not avail remedy under the Industrial Disputes Act without espousal of his cause by a union or by a substantial number of employees of the establishment. The Parliament, therefore, amended the Industrial Disputes Act by the Industrial Dispute (Amendment) Act, 1965. By this amendment, which became effective from December 1, 1965, Section 2A came to be inserted. By virtue of the provisions contained in Section 2A, any dispute or difference between a workman and his employer, in relation to discharge, dismissal, retrenchment or termination of service, is now deemed to be an ‘industrial dispute’ even though, such dispute may not be taken up by a legislative fiction on individual dispute has been converted into an industrial dispute. But, Section 2A is limited to the cases of dismissal, discharge, retrenchment or termination of service of the workman. Other individual disputes can be regarded as an ‘industrial dispute’ only when the tests enumerated in the decisions of the Supreme Court in Central Provinces Transport Service’s case (supra) and other subsequent decisions are satisfied.
10. Section 7 of the 1947 Act relates to the constitution of the Labour Court for adjudication of industrial disputes relating to any matter specified in Second Schedule. Section 7A empowers the appropriate Government to constitute one or more Industrial Tribunals for adjudication of the disputes relating to any matter whether specified in Second Schedule or the Third Schedule. The Second Schedule appended to Industrial Disputes Act, 1947 enumerates the matters which fall within the jurisdiction of the Labour Court and the Third Schedule enumerates the matters which fall within the jurisdiction of the Industrial Tribunal. Sections 7(1), 7A(1) and two Schedules read thus:
“7. Labour Courts – (1) The appropriate Government may, by notification in the Official Gazette, constitute one or more Labour Courts for the adjudication of industrial disputes relating to any matter specified in the Second Schedule and for performing such other functions as may be assigned to them under this Act.
7-A. Tribunals- (1) The appropriate Government may, by notification in the Official Gazette, constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any matter, whether specified in the Second Schedule or the Third Schedule and for performing such other functions as may be assigned to them under this Act.”
The Second Schedule : (See Section 7)
Matters within the jurisdiction of Labour Courts.
1. The propriety or legality of an order passed by an employer under the standing orders;
2. The application and interpretation of standing orders;
3. Discharge or dismissal of workmen including reinstatement of or grant of relief to workmen wrongfully dismissed:
4. Withdrawal of any customary concession or privilege:
5. Illegality or otherwise of a strike or lockout; and
6. All matters other than those specified in the Third Schedule.
The Third Schedule : (See Section 7A)
Matters within the jurisdiction of Industrial Tribunal.
1. Wages, including the period and mode of payment;
2. Compensatory and other allowance;
3. Hours of work and rest intervals;
4. Leave with wages and holidays;
5. Bonus, profit sharing, provident fund and gratuity:
6. Shift working otherwise than in accordance with standing orders;
7. Classification by grades:
8. Rules of discipline;
9. Rationalisation:
10. Retrenchment of workmen and closure of establishment; and
11. Any other matter that may be prescribed.
11. A Labour Court or Industrial Tribunal can adjudicate a dispute relating to any matter specified in the Second Schedule or Third Schedule respectively. But jurisdiction to adjudicate in these matters is conferred on the competent Labour Court or Industrial Tribunal only when the dispute is an ‘industrial dispute’ and not otherwise. The expression “industrial dispute relating to any matter specified in….”as used in Section 7(1) and 7A(1) clearly means that the law has conferred jurisdiction on the Labour Courts and the Tribunals only in respect of industrial disputes which relate to any of the matters specified in the Second Schedule or the Third Schedule. It must, therefore, be held that the existence of industrial dispute in relation to any of these matters is a condition precedent for conferment of jurisdiction on the Labour Court or the Tribunal to make an adjudication. The appropriate Government can make a reference under Section 10(1) read with Section 12(5) for adjudication by a Labour Court or Tribunal of an ‘industrial dispute’, and not an individual dispute. Even if the Government makes a reference of an individual dispute by treating it to be an industrial dispute, the Labour Court or the Tribunal does not get a jurisdiction to adjudicate on such dispute. Any dispute of an individual workman in relation to the matters enumerated in the Second and Third Schedule can become an industrial dispute only if his cause is espoused by a Trade Union of workmen or a substantial number of workmen engaged in the establishment. The only exception is in respect of the matters specified in Section 2A. If an individual workman raises a grievance regarding leave, wages, holidays, bonus, P.P., gratuity, allowance, or an order passed under the standing orders etc, he cannot seek relief under the Industrial Disputes Act, till his grievance is taken up by a Union or by a substantial number of workmen. Even though transfer is not one of the specifically enumerated matters in the Second or the Third Schedule appended to the Act of 1947, it can be said that the same may be treated as part of Para 1 of Schedule II in case, transfer is governed by the Standing Orders or Part 6 of Schedule II which relates to residuary matters, i.e., matters not specified in the Third Schedule. Thus, it can be said that the transfer is one of the matters on which the Labour Court can make an adjudication.
12. It is well recognised that transfer of an employee by the employer is a normal incidence of service. The contract of employment may contain a specific provision relating to the transfer of the employee. Even if such provision is not specifically incorporated in the contract of employment, it is an inherent right of the master to transfer an employee under his control, from one place to another. The transfer may also be provided by the Standing Orders which are applicable to a particular industrial establishment. The same may also be provided by statutory conditions of service wherever the relationship of employer and employee is regulated by such statutory provisions. It has, therefore, to be recognised that the employer has got a right of effecting transfer of an employee from one place to another. The employee can challenge such order of transfer on the ground of violation of the statutory provisions in case transfer is governed by the provisions of the Statute. It may also be challenged on the ground of mala fide, arbitrariness or victimisation or change in the condition of service. The crucial question, however, is as to whether the employee can, as a matter of right, claim adjudication of his grievance relating to transfer by a Labour Court. Can the Labour Court adjudicate in such matters even if no industrial dispute is referred to it for adjudication? As already observed by me above, such a dispute can become an industrial dispute only if it is espoused by a Union of the workmen or by a substantial number of workmen employed in an ‘industry’. Without such espousal the dispute in relation to transfer cannot be treated as an industrial dispute and it cannot be referred to a Labour Court nor can a Labour Court make an adjudication in regard to such dispute.
13. Argument of Shri Kala that Section 9 of the Code of Civil Procedure stands excluded in respect of all matters enumerated in the Second and Third Schedules and, therefore, jurisdiction of the Civil Court to adjudicate upon the legality of transfer of an employee of an industry deserves a close scrutiny. Despite various pronouncements of the Apex Court and of this Court, the Civil Courts are still confused about their jurisdiction to entertain suits in respect of the matters enumerated in the Second or Third Schedule appended to the Industrial Disputes Act, 1947. Section 9 C.P.C. provides:
“9. Courts to try all civil suits unless barred.-
The Courts shall (subject to the provisions herein contained) have jurisdiction to try all
suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred”.
14. It is a settled principle of law that exclusion of jurisdiction of Civil Court is not to be readily inferred and such exclusion must be either express or implied. In Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78, their Lordships of the Supreme Court discussed the law on the subject and enumerated principles regarding exclusion of jurisdiction of the Civil Court. These principles are (para 32):
“(1) Where the statute gives a finality to the orders of the special tribunals the Civil Courts’ jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court, Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the Statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act, but it is not a compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.
(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act, In either case, the scheme of the particular Act must be examined because it is a relevant enquiry.
(7) An exclusion of jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.”
15. The same view was reiterated in Smt. Ganga Bai v. Vijay Kumar (AIR 1974 SC 1126) and also in a recent decision of Supreme Court in Nagripracharini Sabha v. Vth Additional District & Sessions Judge, Varanasi, 1991 Suppl (2) SCC 36 and Ishar Singh v. National Fertilizers (AIR 1991 SC 1546). The last mentioned case was a case relating to correction of date of birth. The workman sought an injunction against impending superannuation and ancillary reliefs. Their Lordships held that the maintainability of the suit has to be decided with reference to the date of institution of the proceedings and since on the date when the civil suit was filed none of the eventualities covered by Section 2A had happened, the appellant could not have approached the forum under 1947 Act for relief. Their Lordships further held that, “If for part of the reliefs the suit is maintainable in the forum where it has been laid, it is not open to the forum to shut out the doors to the suitor.” It further held that, “so far as the relief of rectification of the record relating to date of birth is concerned, the Civil Court had jurisdiction and the High Court was not right in saying that the suit was not maintainable at all.”
16. In Premier Automobiles’ case (supra), on which much emphasis has been placed by Shri Kala, their Lordships of the Supreme Court were concerned with a case in which suit was filed by the workman with the claim that in terms of the Memorandum of Settlement entered into between the employer and the employees under Section 18(1), some conditions of service were recognised. Subsequently, another settlement was arrived at between the company and the Associations Union. It was claimed that the subsequent settlement was not binding on those workmen who were not its members. It was claimed that the settlement had been arrived at without following the mandatory requirement of Section 9A of 1947 Act. It was claimed that the settlement dated January 9, 1971 was not binding on the plaintiff and other concerned daily-rated and monthly-rated workmen of the Motor Production Department who were not members of the Association Union. The defendants challenged the jurisdiction of the Civil Court. The trial Court held that it had jurisdiction to try the suit and a conditional decree of injunction was passed against the defendant. Appeal filed by the company before the High Court was dismissed. A Letters Patent Appeal also met the same fate. Their Lordships of the Supreme Court examined the scope of Section 9, C.P.C. and various provisions of the Industrial Disputes Act, 1947 including Section 2(k) which defines the term “industrial dispute”. After analysing the provisions their Lordships observed (Para 9): (1975-II-LLJ-445 at 451):
“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 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, then alternative forums are there giving an election to 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. But we shall presently show that the Civil Court will have no jurisdiction to try and adjudicate upon an industrial dispute if it concerned enforcement of certain right or liability created only under the Act. In that event Civil Court will have no jurisdiction even to grant a decree of injunction to prevent the threatened injury on account of the alleged breach of contract, if the contract is one which is recognized by and enforceable under the Act alone.”
(Underlining is mine).
17. After making a reference to the various English decisions as well as the judgments of this Court, their Lordships of the Supreme Court laid down the following principles relating to the jurisdiction of the Civil Court in relation to an ‘industrial dispute’ (Para 23) (p. 459):
“(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 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 only remedy available to the suitor 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 V A, then the remedy for its enforcement is either S. 33C or the raising of an industrial dispute, as the case may be.”
18. This decision of the Supreme Court has been reiterated in Jitendra Nath Bishwas v. Empire of India & Ceylon Tea Co. (supra). That case also related to termination of the service of an employee on the basis of an enquiry held in accordance with the provisions of the Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946. Their Lordships held that the Industrial Dispute confers the right on a worker for reinstatement and back wages if the order of termination or dismissal is not in accordance with the Standing Orders. The Act also provides a detailed procedure and machinery for getting this relief and, therefore, the jurisdiction of the Civil Court is impliedly excluded.
19. In Tamil Nadu Mercantile Bank Ltd., Tuticorin v. T. Venkatesan (supra), transfer was challenged by an employee before the Civil Court, However even before the suit was filed, the Tamil Nadu Mercantile Bank Ltd. Union had raised an industrial dispute questioning the validity of the transfer. A learned single Judge of Madras High Court placed reliance on another decision of the same Court in T. Rajaiah v. Southern Roadways Ltd., (1991) I Lab LN 453, of Kerala High Court in Kerala Rubber and Reclaims Ltd. v. P.A. Sunny (1989 Lab IC 964). The learned single Judge also referred to the decision of the Supreme Court in Premier Automobiles Ltd., (supra) and held that the case does not fall under second principle enunciated by the Supreme Court in Premier Automobiles Ltd’s case (supra). He further held that the case of transfer is covered by principles Nos. 3 and 4 formulated by the Supreme Court. Learned single Judge held that the Civil Court had no jurisdiction to entertain the suit.
20. In Kerala Rubber & Reclaims Ltd. v. P.A. Sunny (supra), an order of transfer was challenged in a civil suit. After making reference to the decision of the Supreme Court in Premier Automobiles’ case (supra), a learned single Judge held that, common law does not recognise any limitation on the power in the matter of transfer of the employees on the ground of mala fides, victimisation or unfair labour practice. But, after the Industrial Disputes Act was enacted, new rights and liabilities have been created restricting unfettered common law rights of master in dealing with the workmen in this behalf. Learned single Judge further held that, Civil Court had no jurisdiction to entertain the suit. He made a reference to Section 25T read with Section 2(r-a) and Item 7 of the Vth Schedule to the Act, as also to the residuary clause in the Second Schedule pertaining to the jurisdiction of the Labour Court and observed that:
“Any dispute regarding transfers effected in contravention of Schedule 25T read with Item 7 of the Vth Schedule can be resolved under Section 10 of the Act. Merely because a workman is not in a position to satisfy all the conditions prescribed by the statute for the purpose of enforcing the rights created by the statute, it cannot be said that the statute does not provide a remedy for enforcing the rights created by the statute.”
21. In Y. Mookan v. Southern Roadways (1991-I-LLJ-533) a learned single Judge of Karnataka High Court adopted the same reasoning and held that since the remedy was available to the workman under the Industrial Disputes Act, the jurisdiction of the Civil Court is impliedly barred. In this judgment the learned Judge of the Karnataka High Court referred only to the provisions of Section 25T read with Section 2(r-a) and Item No. 7 of Vth Schedule appended to the Industrial Disputes Act.
22. In General Secretary, National and Grindleys Bank Employees Union v. S. Kannan (1978-I-LLJ-453) a dispute relating to seniority of employees based on an agreement between the Employees Union and the Management was agitated by way of suit. Objection regarding: ouster of the jurisdiction of the Civil Court was rejected by Madras High Court and it was observed that, “right sought to be enforced in the suit was not one created under the Act and it was one arising under the common law.” (p. 458)
23. In Sita Ram Kashi Ram Konda v. Pigment Cakes and Chemicals Manufacturing Co. (1979-II-LLJ-444) their Lordships of the Supreme Court held that, a suit for award of compensation against wrongful dismissal from service was maintainable before a Civil Court.
24. A conspectus of the judgments, to which reference has been made hereinabove, clearly show that ordinarily the Civil Court has jurisdiction to entertain all suits for adjudication of the rights and disputes under Section 9 of the Code of Civil Procedure and exclusion of the jurisdiction of the Civil Court is not to be inferred easily. Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find out the adequacy or the sufficiency of the remedies provided is not relevant. However, where no expression of exclusion has been made, an examination of the scope of remedies and scheme of the particular Act to find out the intention of the Legislature becomes necessary. In such types of cases it is necessary to see as to whether the statute creates a special right or a liability and provides for the determination of the rights or the liabilities and whether it lays down that all questions about such rights and liabilities shall be determined by the Tribunal constituted under the Act and whether remedy normally associated with actions in Civil Courts, are prescribed by such statute. In the decision of the Supreme Court in Premier Automobiles’ case (supra), which finds reference in almost all subsequently decided cases, reference has been made to a decision of Madras High Court in Krishnan v. East India Distilleries and Sugar Factories Ltd., Nellikuppam (1964-I-LLJ-217) and of another decision of the same High Court in Madura Mills Ltd. v. Guruvammal (1967-II-LLJ-397), which have been approved. Their Lordships also approved views taken by Mysore High Court in Nippani Electricity Company (P) Ltd. v. Bhimrao Laxman Patil (1969-I-LLJ-268), of Kerala High Court in Nanu Asan Madhavan v. State of Kerala (1970-I-LLJ-272). Calcutta High Court in Austin Distributors Pvt. Ltd. v. Anil Kumar Das 1970 Lab IC 323 (Cal) and another decision of Mysore High Court in the case of Syndicate Bank v. Vincent Robert Lobo (1971-II-LLJ-46). Their Lordships of the Supreme Court then examined the facts of the case which came up for consideration before them and observed that the source of the right claimed by the plaintiffs was the agreements entered from time to time under Section 18(1) of the Act. Their Lordships observed that the workmen who were not members of the Sabha-Union had tacitly agreed to be bound by the said agreement and if they claim that the agreement had become term of the contract of service, the alternative claim made could be referable to the claim of the non-pressed only. The source of their right in that provision was different and a representative suit on their behalf by the two plaintiffs could not be maintained. The portion of that decision which has been extracted by me hereinabove, clearly shows that their Lordships have in no uncertain terms laid down that 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, there is no provision for adjudication of such dispute under the Act and the Civil Courts will be proper forum. Even from principle No. 2 it is clear that if a dispute is an ‘industrial dispute’ arising out of a right or the liability under the common law and not under the I.D. Act, the jurisdiction of the Civil Court is alternative and it is for the party to choose the forum. Therefore, before the jurisdiction of the Civil Court can be treated to have been ousted, the Court is bound in each and every case, where the jurisdiction of the Civil Court is challenged, to consider as to whether the dispute is an ‘industrial dispute’. It has then to consider whether it is a dispute in relation to the matters specified in Schedule Second and Third. Only when the Court comes to the conclusion that ‘industrial dispute’ relates to enforcement of certain rights created by the Act, the jurisdiction of the Civil Court is ousted and not otherwise.
25. As already observed earlier, transfer of an employee by the employer is a normal incidence of service. Even before coming into force of the Industrial Dispute (Amendment) Act, 1982, by which Section 2(r- a), Section 25T and Fifth Schedule were added along with some other provisions. The Court has recognised protective right of the employer to transfer his employee and also that an employee is free to challenge the order of transfer on the ground of mala fide and victimisation, unfair labour practice etc. That has been done by the Amending Act which statutorily treats the transfer of a workman as an act of unfair labour practice. This amendment, however, does not lead to a further conclusion that other transfer effected by the employer automatically becomes an industrial dispute. Before any challenge regarding transfer of an employee who is working under the Industrial Disputes Act, 1947, can be made a subject matter of reference, it has to be satisfied that industrial dispute exists or is apprehended. Labour Court or Industrial Court will get jurisdiction to make an adjudication in the matter of transfer only when it can be treated to be an industrial dispute. Although in the decisions of the Madras High Court in Tamil Nadu Mercantile Bank Ltd., Tuticorin v. T. Venkatesan, T. Rajaiah v. Southern Roadways Ltd., decision of the Kerala High Court in Kerala Rubber and Reclaims Ltd. v. PA. Sunny (supra) and decision of the Karnataka High Court in Y. Mookan v. Southern Roadways (supra) to which reference has been made hereinabove, it has been held that Civil Courts have jurisdiction to examine the validity of transfer of a workman, a thorough reading of all these decisions shows that neither of the High Courts has examined the issue in the context of the definition given to the term ‘industrial dispute’ by the Supreme Court in Bombay Union of Journalists v. ‘The Hindu’, Bombay (1961-II-LLJ-436). In all these judgments, the Courts have proceeded on an assumption that a dispute relating to transfer is always an industrial dispute, even though it may not be espoused by the Trade Union or by a substantial number of workmen. Moreover, these decisions do not take note of observations made by the Supreme Court even in Premier Automobiles case (supra) which have been quoted by me in the earlier part of this order. With great respect, none of these decisions can be treated as laying down correct law. Rather these decisions run contrary to the decisions of the Supreme Court in Bombay Union of Journalists and others as well as Premier Automobiles case. In my considered opinion, a dispute relating to transfer of a workman can be adjudicated by Labour Court/Industrial Court only when it becomes industrial dispute. Otherwise, it is an individual dispute and only the Civil Court has jurisdiction to make an adjudication on the legality of the action of the employer in relation to transfer of his employee.
26. It is, therefore, held that the learned Additional Munsiff as well as learned Additional District Judge No. 1, Kota have committed a serious error in holding that the Civil Court has no jurisdiction to entertain the suit filed by the plaintiffs-petitioner.
27. The aforesaid conclusion, however, is not sufficient to give any relief to the petitioner. On merit, I am of the opinion that learned Additional Munsiff as well as learned District Judge have not committed any error in law warranting interference by this Court. A more or similar case of transfer has been considered by me in S.B. Civil Revision Petition No. 241 of 1992, Hari Narain Sharma v. Rajasthan Patrika Ltd. decided on August 11, 1992, and it has been held by this Court that refusal of trial Court to grant injunction in the matter of transfer is neither unjustified nor illegal.
28. On the basis of above discussion it is held that Civil Court has jurisdiction to entertain grievance of a person who falls within the definition of workman under the Industrial Disputes Act, 1947 in relation to his service condition unless it becomes an industrial dispute by espousal as contemplated by the decisions of the Supreme Court in the Bombay Union of Journalists v. ‘The Hindu’, Bombay (supra) and Premier Automobiles (supra). However, I find that there is no justification for interfering with the order passed by the learned Munsiff and the learned Additional District Judge. The revision petition is, therefore, dismissed. Costs made easy.