REPORTABL
E
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7754 OF 2011
[ARISING OUT OF SLP (CIVIL) NO.126 OF 2009]
Bihar State Electricity Board & Anr. ....Appellants
Versus
Ram Deo Prasad Singh & Ors. ....Respondents
J U D G M E N T
Aftab Alam,J.
1. Leave granted.
2. The appellants, Bihar State Electricity Board and its Chairman were
the defendants in a suit filed by respondents 1 to 8, the plaintiffs. The
respondents were the workmen of the Board and at the material time, i.e., in
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the year 1974 they were working as security guards at Patratu Thermal
Power Station, Hazaribagh. They were proceeded against on certain charges
of misconduct. In the domestic enquiry the charges were established and on
the basis of the findings of the domestic enquiry, they were dismissed from
service on November 11, 1975. After 4 years of dismissal from service they
filed a suit (T.S. No. 95/1979) in the court of Munsiff V, Patna, seeking
declarations that their dismissal was bad, unconstitutional and inoperative in
law and they would be legally deemed to have continued in service.
3. The trial court allowed the suit by judgment and decree dated August
29, 1981. The appeal preferred by the appellants against the judgment and
decree passed by the trial court (Title Appeal No. 147 of 1981/62/2004) was
dismissed by the Additional District Judge, fast track court No. 2, Patna, by
judgment dated January 18, 2006. The appellants, then, brought the matter
before the High Court in second appeal (SA No. 97 of 2006) but this too was
dismissed by judgment and order dated September 22, 2008. The appellants
are now before this Court assailing the judgments and decree passed against
them.
4. In view of section 89 of the Bihar Reorganisation Act, 2000 the
judgments of the High Court and the first appellate court appear to be
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manifestly illegal and without jurisdiction. It may be noted that the district
of Hazaribagh, where Patratu Thermal Power Station is situated, was earlier
part of the State of Bihar but on bifurcation of the State with effect from
November 15, 2000, the appointed date under the Reorganisation Act it
forms part of the newly created State Jharkhand. Section 89 of the
Reorganisation Act dealing with transfer of pending proceedings provides as
follows –
“89.”Transfer of pending proceedings –
(1) Every proceeding pending immediately before the
appointed day before the court (other than the High
Court), tribunal, authority or officer in any area which
on that day falls within the State of Bihar shall, if it is
a proceeding relating exclusively to the territory,
which as from that day is the territory of Jharkhand
State, stand transferred to the corresponding court,
tribunal, authority or officer of that State.
(2) If any question arises as to whether any proceeding
should stand transferred under sub-section (1), it shall
be referred to the High Court at Patna and the decision
of that High Court shall be final.
(3) In this section, - a) "proceeding" includes any suit, case or appeal; andb) “corresponding court, tribunal authority or officer”
in the State of Jharkhand means, –
(i) the court, tribunal, authority or officer in
which, or before whom, the proceeding would
have laid if it had been instituted after the
appointed day; or
(ii) in case of doubt, such court, tribunal, authority, or
officer in that State, as may be determined after the
appointed day by the Government of that State or
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the Central Government, as the case may be, or
before the appointed day by the Government of the
existing State of Bihar to be the corresponding
court, tribunal, authority or officer.”
(emphasis added)
From a bare reading of section 89 of the Act, it is evident that on the
appointed date the appeal preferred against the judgment and decree passed
by the Munsiff stood transferred to a corresponding court in the State of
Jharkhand. The transfer of the appeal took place by operation of law and the
Additional District Judge, Patna was denuded of all authority and
jurisdiction to proceed with the matter or to hear and decide the appeal. It
follows equally that the Patna High Court had no jurisdiction to hear and
decide the second appeal arising from the suit.
5. From the judgment of the Patna High Court it appears that one of the
three substantial questions of law arising in the second appeal related to the
question of jurisdiction of the first appellate court to hear the appeal and the
question was framed as follows: –
“3. Whether the lower appellate court had the jurisdiction to
hear the title appeal after coming into force of the Bihar Re-
organisation Act, 2000?
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6. The High Court answered the question in the negative, but in doing so
it sought to side-step section 89 of the Re-organisation Act in curious ways.
In paragraphs 9 and 10 of the judgment it held and observed as follows: –
“9. It is not in dispute that when the title suit was
filed the said Act had not come into force and even
when the title appeal was filed in the year 1981 the
said Act was not in force and the said Act came
into force in the year 2000 and it was made
effective from 15.11.2000 much after the title
appeal had been admitted and was pending for
hearing. Furthermore, there was an issue before the
trial court with respect to the jurisdiction of the
court to try the suit as objection was raised by the
defendants that the suit should have been filed at
Hazaribagh and the said issue was framed as issue
no. (iv) but the same was not pressed by the
defendants before the trial court and hence it
appears to have been conceded by them that the
court at Patna had jurisdiction to try the suit.
10. Section 89 of the Act specifically provides that
a suit or an appeal pending in the territory of
reorganised State of Bihar would stand transferred
to the State of Jharkhand if the subject matter of
the suit falls within the State of Jharkhand. But it is
also provided that if any question arises as to
whether it shall be referred to Patna High Court
and decision of that High Court shall be final.
However, in the instant case it is quite apparent
that the title appeal remained pending for about
four years after coming into force of the aforesaid
Act but the defendants who were the appellants in
that Court never raised any such question with
regard to the jurisdiction of the Court nor any such
matter was ever referred to the High Court at Patna
as per the said provisions of Law. Hence, in these
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circumstances the learned court of appeal below
was quite justified in hearing the said title appeal
and deciding it on merits.”
7. The High Court is wrong on all scores. The fact that the appeal against
the judgment and decree passed by the Munsiff was filed before the
bifurcation of the State and on the appointed date (November 15, 2000) the
appeal was already pending before the Additional District Judge has no
bearing on the issue. Section 89 relates to proceedings pending on the
appointed date and not to proceeding that might be filed after that date.
Secondly, the objection in regard to the territorial jurisdiction, raised before
the trial court was in an altogether different context. The objection before the
trial court was based on the ground that the plaintiffs-workmen were
working at Patratu Thermal Power Station and their dismissal had taken
place there. The cause of action having arisen at Patratu, the suit ought to
have been filed before a court under whose territorial jurisdiction Patratu
Thermal Power Station is situate. The objection was not pressed before the
trial court presumably because the head office of the Board being at Patna it
was believed that the plaintiffs could file the suit at Patna as well. But the
objection taken before the Munsiff, whether pressed or given up, could have
no bearing on the transfer of the proceedings on the bifurcation of the State
in terms of section 89 of the Reorganisation Act.
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8. The third ground given by the High Court that the defendants who were
the appellants before the Additional District Judge never raised the question
with regard to the jurisdiction of the court nor any such question was
referred to the Patna High Court for its decision, is equally misconceived
and untenable. As noted above, the transfer of the proceedings in terms of
section 89 of the Act is to take place by operation of law and is not
dependant upon any objection raised by any of the two sides.
9. In light of the above, it must be held that the judgment passed by the
first appellate court was illegal and without jurisdiction and equally without
jurisdiction is the judgment and order passed by the Patna High Court.
10. Further, quite strangely the High Court lost sight of the fact that it was
affirming a decree that was no longer executable or enforceable in the State
of Bihar. Section 62 of the Reorganisation Act contains provisions relating
to Bihar State Electricity Board besides two other Corporations and in so far
as relevant for the present provides as under: –
“62. Provisions as to Bihar State Electricity Board, State
Warehousing Corporation and State Road Transport
Corporation.-
(1) The following bodies corporate constituted for the existing
State of Bihar, namely:-
(a) the State Electricity Board constituted under the
Electricity Supply Act, 1948 (54 of 1948);
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(b) the State Warehousing Corporation established under the
Warehousing Corporations Act, 1962 (58 of 1962);
(c) the State Road Transport Corporation established under
the Road Transport Act, 1950 (64 of 1950),
shall, on and from the appointed day, continue to function in
those areas in respect of which they were functioning
immediately before that day, subject to the provisions of this
section and to such directions as may, from time to time, be
issued by the Central Government.
(2) Any directions issued by the Central Government under sub-
section (1) in respect of the Board or the Corporation shall
include a direction that the Act under which the Board or the
Corporation was constituted shall, in its application to that
Board or Corporation, have effect subject to such exceptions
and modifications as the Central Government thinks fit.
(3) The Board or the Corporation referred to in sub-section
(1) shall cease to function as from, and shall be deemed
to be dissolved on such date as the Central Government
may, by order, appoint; and upon such dissolution, its
assets, rights and liabilities shall be apportioned between
the successor States of Bihar and Jharkhand in such
manner as may be agreed upon between them within one
year of the dissolution of the Board or the Corporation,
as the case may be, or if no agreement is reached, in such
manner as the Central Government may; by order,
determine:
Provided that any liabilities of the said Board relating to
the unpaid dues of the coal supplied to the Board by any public
sector coal company shall be provisionally apportioned between
the State Electricity Boards constituted respectively in the
successor States of the existing State of Bihar or after the date
appointed for the dissolution of the Board under this sub-
section in such manner as may be agreed upon between the
Governments of the successor States within one month of such
dissolution or if no agreement is reached, in such manner as the
Central Government may, by order, determine subject to
reconciliation and finalisation of the liabilities which shall be
completed within three months from the date of such
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dissolution by the mutual agreement between the successor
States or failing such agreement by the direction of the Central
Government:
Provided further that an interest at the rate of two per
cent higher than the Cash Credit interest shall be paid on
outstanding unpaid dues of the coal supplied to the Board by
the public sector coal company till the liquidation of such dues
by the concerned State Electricity Board constituted in the
successor States on or after the date appointed for the
dissolution of the Board under this sub-section.
………………………..”
In terms of sub-section 3 of section 62, Jharkhand State Electricity Board
came into existence on April 1, 2001. After that date it is no longer possible
for the Bihar State Electricity Board to reinstate the respondents as security
guards at Patratu Thermal Power Station where they were working at the
time of dismissal from service.
11. Thus, looked at from any angle, the judgments passed by the first
appellate court and the High Court are untenable in law and the decree
passed by the trial court, in the absence of Jharkhand State Electricity Board
having been impleaded as a defendant, is rendered non-executable in the
State of Bihar.
12. Mr. S.B. Sanyal, learned senior advocate, appearing for the plaintiffs-
respondents, submitted that the case may be transferred to an appropriate
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court in the State of Jharkhand from the stage of the first appeal against the
judgment and decree passed by the Munsiff, Patna. And before that court the
plaintiffs-respondents might take steps for impleadment of the Jharkhand
State Electricity Board as one of the defendants.
13. We are completely disinclined to take that course for the following
reasons.
14. It may be recalled that the respondents were dismissed from service
on November 11, 1975. They filed the suit four years later at Patna and tried
to overcome the bar of limitation by pleading that they first came to know
about their dismissal from service when they went to collect their wages in
October, 1976. The Munsiff strangely accepted the plea.
15. Secondly, before filing the suit at Patna, they had filed suits being title
suit Nos. 65, 66, 67 and 72 of 1975 before the Munsiff, Hazaribagh. Those
suits were dismissed for default. Before the Patna court an objection was
raised on behalf of the defendants-appellants regarding the maintainability of
the suit in terms of Order 9 Rule 4 of the Code of Civil Procedure. The
plaints of the suits filed at Hazaribagh were produced before the Patna court
but the objection was overruled on the ground that the Board omitted to get
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the plaintiffs’ signatures on the plaints and vakalatnamas filed before the
Hazaribagh court formally proved.
16. Thirdly and most importantly the suit filed by the plaintiffs was itself
not maintainable. It may be recalled that plaintiffs worked as security guards
at the Thermal Power Station, they were, therefore, without doubt workmen
within the meaning of the Industrial Disputes Act, 1947 and their service
conditions were governed by the standing orders framed under the Industrial
Establishment (Standing Orders) Act, 1946 and the relevant rules framed by
the Board. It was, therefore, open to the respondents to raise an industrial
dispute concerning their dismissal from service. A suit seeking reinstatement
was therefore clearly barred and not maintainable. The issue stands settled
by the decision of this Court in The Premier Automobiles Ltd. v. Kamlekar
Shantaram Wadke of Bombay and Others, (1976) 1 SCC 496. In paragraphs
23 and 24 of the judgment this Court held as follows: –
“23. To sum up, the principles applicable to the
jurisdiction of the Civil Court in relation to an
industrial dispute may be stated thus:
(i) 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.
(ii) 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
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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.
(iii) 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 suitor is to get an
adjudication under the Act.
(iv) 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 Section 33-C or the
raising of an industrial dispute, as the case
may be.
24. We may, however, in relation to principle No.
2 stated above hasten to add that there will hardly
be a dispute which will be an industrial dispute
within the meaning of Section 2(k) of the Act and
yet will be one arising out of a right or liability
under the general or common law only and not
under the Act. Such a contingency, for example,
may arise in regard to the dismissal of an
unsponsored workman which in view of the
provision of law contained in Section 2A of the
Act will be an industrial dispute even though it
may otherwise be an individual dispute. Civil
Courts, therefore, will have hardly an occasion to
deal with the type of cases falling under principle
No. 2. Cases of industrial disputes by and large,
almost invariably, are bound to be covered by
principle No. 3 stated above.”
17. We, thus, come to the inescapable conclusion that the plaintiffs-
respondents’ suit was itself not maintainable and was liable to be dismissed.
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18. For the reasons discussed above the appeal is allowed. The judgments
and decree coming under challenge are set aside and the suit filed by the
plaintiffs-respondents is dismissed.
19. In the facts of the case there will be no order as to costs.
……………………………J.
(Aftab Alam)
……………………………J.
(R.M. Lodha)
New Delhi;
September 8, 2011.
