JUDGMENT
Usha Mehra, J.
(1) Appellant Lahori Singh was employed as Clerk with M/s Larson & Toubro Ltd. He was to retire at the age of 58 years. He offered to be medically examined and thereafter given extention till the age of 60 years. The employer/ respondent declined his offer. He felt aggrieved with the attitude of the respondent because according to him the respondent could not retire him from service till he completed the age of 60 years. To take the benefit of 60 years he placed reliance on the settlements arrived at between the Management and Larson & Toubro Workers Union of which the appellant No.1 is a member. The latest settlement relied by him was dated 30th December,1993. This was entered into between the Union and the Management at Bombay. As per this Clause No.6.3.1 the age of retirement is 58 years, but the same is extendable depending on the requirement of the company at its descretion subject to medical fitness by the Company’s medical officer for another period of two years. Relying on this clause the appellant contended that since he was medically fit and offered himself to be medically examined by the Medical Officer of the Company hence his retirement age had to be extended by the respondent. The respondent without assigning any reason discriminated the appellant vis.a.vis. other employees whose date of retirement had been extended for two years. If his date of retirement had been extended he would not have to retire on 8th April,1994. Feeling aggrieved he filed the suit for declaration and permanent injunction and also claimed damages.
(2) By the impugned order dated 16th February,1995, the learned Additional District Judge returned the plaint holding that the Civil Court had no jurisdiction. That the appellant should approach the Labour Court which is the competent forum. Against that order this appeal has been preferred, primarily on the ground that Civil Court is competent to entertain the suit because his case was based on the general law of contract. In the suit he had claimed damages which the Labour Court could not award. Hence the dismissal of the suit on the ground of lack of jurisdiction was bad. The respondent without affording him any opportunity of being heard could not reject his request. Hence, suit is the only remedy. His claim in the suit is based on the breach of contract for which the proper forum is the Civil Court. Moreover, learned Trial Court did not record evidence yet decided the question of jurisdiction which is a mixed question of law and fact hence required evidence.
(3) After considering the respective contentions of the learned counsel for the parties it can be said that appellant has not been able to point out any infirmity in the impugned order. Admittedly, the appellant No.1 is a workman as defined under Section 2(s) of the Industrial Disputes Act,1947 (in short the Act). The question for consideration is whether the claim of the appellant for extension of two years service is based on the implementation, recognition and enforcing the term arising out of the settlement arrived at between the Management and the employees. If that be so then the question would arise whether the Civil Court can be called upon to enforce the same by declaring that term to be enforceable? Similarly, we have to consider can Civil Court by way of declaration allow specific performance of service contract. Admittedly, the case of the appellant is based on the interpretation of the terms of service settlements governing the service conditions. Once the claim of the appellant happens to be based on the basic condition arrived at by way of settlements then how the suit be maintainable. To understand whether Civil Court in such eventuality would have jurisdiction we have to analyse the provisions of Section 9 of the Code of Civil Procedure (in short CPC). The said provision in no uncertain terms lays down that Civil Courts have to have jurisdiction to try all suits of civil nature excepting suits of which the congnizance is either expressely or impliedly barred. In order to find out whether in the facts of this case jurisdiction of Civil Court is barred expressly, for that we have to fall on the interpretation of the word “industrial dispute”. If the relief sought in the suit is covered by the definition of “Industrial Dispute” then the jurisdiction of Civil Court is expressly barred. Section 2(k) of the Act defines “Industrial Dispute” as under:- “SECTION 2(k) : “Industrial dispute” means any dispute or difference between employers and employees, 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, or any person;”
(4) It would be wrong to say that asking of the implementation of the term of settlement by the appellant workman does not touch the terms of employment or that it is not connected with the employment. In fact the asking of the appellant is that his case of extending tenure is based on Clause No.6.3.1 of the settlement arrived at between the parties. Denial of this benefit to the appellant by the Management raises industrial dispute.
(5) Supreme Court in the case of Premier Automobiles Ltd. etc.V. Kamlekar Shantaram Wadke of Bombay & Ors. and of a subsequent case Rajasthan State Road Transport Corporation V. Krishna Kant reported in Jt 1995(4) Sc 348, indicated the area of disputes is covered under Section 2(k). The Apex Court summarised the principles in its judgment in Premier Automobiles Ltd. (supra) and in particular in paras 23 & 24 of the said its judgment as under:- Para 23. To sum up, the principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute may be stated thus: (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 s 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 suitor is to act an adjudication under the Act. (4) If the right which is sought to be enforced is a right created under the Act such a Chapter V-A then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute, as the case may be. Para 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.”
(6) In the case of Rajasthan State Road Transport Corporation (Supra) Supreme Court in para 28 of the judgment observed that :- “COMING back to Principle No.2 and its qualification in para 24, we must say that para 24 must be read harmoniously with the said principle and not in derogation of it – not so as to nullify it altogether. Indeed, Principle No.2 is a reiteration of the principle affirmed in several decisions on the subject including Dhulabhai. Principle No.2 is clear whereas Para 24 is more in the nature of a statement of fact. It says that most of the industrial disputes will be disputes involving the rights and obligations created by the Act. It, therefore, says that there will hardly be any industrial dispute which will fall under Principle No.2 and that almost all of them will fall under Principle No.3 This statement cannot be understood as saying that no industrial dispute can ever be entertained by or adjudicated upon by the Civil Courts. Such an understanding would not only make the statement of law in Principle No.2 wholly meaningless but would also run counter to the well established principles on the subject. It must accordingly be held that the effect of principle No.2 is in no manner whittled down by Para 24. At the same time, we must emphasise the policy of law underlying the Industrial Disputes Act and the host of enactments concerning the workmen made by Parliament and State legislatures. The whole idea has been to provide a speedy, inexpensive and effective forum for resolution of disputes arising between workmen and their employers. The idea has been to ensure that the workmen do not get caught in the labyrinth of Civil Courts with their layers upon layers of appeals and revisions and the elaborate procedural laws, which the workmen can ill afford. The procedures followed by Civil Courts, it was thought, would not facilitate a prompt and effective disposal of these dispute As against this, the Courts and Tribunals created by the Industrial Disputes Act are not shackled by these procedural laws nor is their award subject to any appeals or revisions. Because of their informality, the workmen and their representatives can themselves prosecute or defend their cases. These forums are empowered to grant such relief as they think just and appropriate. They can even substitute the punishment in many cases. They can make d re-make the contracts, settlements, wage structures and what not. Their awards are no doubt amenable to jurisdiction of the High Court under Article 226 as also to the jurisdiction of this Court under Article 32, but they are extraordinary remedies subject to several self imposed constraints. It is, therefore, always in the interest of the workmen that disputes concerning them are adjudicated in the forums created by the Act and not in a Civil Court. That is the entire policy underlying the vast array of enactments concerning workmen. This legislative policy and intendment should necessarily weigh with the Courts in interpreting these enactments and the disputes arising under them.” (Underlining mine).
(7) Keeping in view the principles laid down by the Supreme Court in Premier Automobiles Ltd. (Supra) and Rajasthan State Road Transport Corporation (Supra) we may examine the facts of this case and also the basis upon which the appellant claimed relief in the suit. Relief in the suit was based on Clause No.6.3.1 of the settlement arrived at between the employees and the Management at Bombay on 30th December,1993. The term of settlement is that the age of retirement would be 58 years which may be extended depending on the requirement of the company at its direction of the management subject to medical fitness certificate by the company’s Medical Officer. According to the appellant number of settlements regarding the wage facilities including duties and obligations on the part of the appellant and respondent management were arrived at. Those are dated 5th February,1976, 26th November,1980, 2nd March,1990 and 30th December,1993. As per the settlement of 30th December,1993 tenure of service could be extended year to year at management’s discretion upto two years subject to physical fitness and attendance record of the employee. The said settlement according to the appellant stipulated that the age of retirement of all the workmen shall continue upto 58 years and could be extended for a maximum period of two years. The settlement of 1990, indicated that the age of retirement was 58 years. It also specified the existing facilities, terms and conditions of service, rights and obligations of the parties. By the subsequent settlement of 1993 all other terms remained unchanged except the retirement age. Regional Manager of the respondent vide letter dated 2nd April,1990 also agreed for raising the retirement age of workman from 58 years to 60 years in case the same was raised at Bombay office. Therefoe,the latest Bombay Settlement dated 30th December,1993 was relied by the appellant to prove that age of retirement or superannuation of all workmen was to be 58 years with discretion of the respondent to extend depending upon the requirement of the company and subject to physical fitness. Since the appellant was due to retire on 14th June,1994 at the age of 58 years hence he offered to get medically examined from the Medical Board of the respondent and sought the extension of service because of the compelling reasons that he being the only male earning member had to support a large family, therefore, his age of superannuation be extended for two years. This representation was based on the term of settlement arrived at on 30th December,1993. But the respondent turned down this request vide letter dated 9th April,1994. Rejection was based on Clause No.8.3.1 of the Settlement arrived at on 2nd March,1990. As per Clause 8.3.1 respondent informed that it was not possible to extend service tenure of appellant.
(8) It is an admitted fact that there is no service condition regulating the service of the appellant permitting as of right the extention of date of retirement from 58 years to 60 years. There is in fact no clear stipulation in any of the settlements specifying that the age of retirement has been increased from 58 years to 60 years. What Clause 6.3.1 of the settlement of 30th December,1993 stipulates that subject to the discretion of the Management and Medical fitness the age of superannuation could be extended for a maximum period of two years. Prior to this Clause, there existed Clause No.8.3.1 of the settlement arrived at between the parties on 2nd March,1990 which reads as under:- "8.3Retirement age 8.3.1 The age of retirement on superannuation of all workmen shall be 58 years of age." (9) The settlement dated 30th Decemebr,1993 deals with the extention of retirement age vide Clause 6.3. Retirement age as per Clause 6.3.1 leaves the discretion with the Management to extend the age of superannuation for another period of two years or not? The said clause reads as under:- "6.3Retirement Age 6.3.1. Age of retirement or super- annuation of workmen shall be 58 years, which may, depending entirely on the needs of the Company, be extended year to year upto two years at discretion of the Management subject to physical fitness certified by the Company's Medical Officer and the attendance record of the workmen concerned."
(10) Reading of this clause clearly show that extention of the age of retirement is subject to certain conditions. In case these conditions are fulfillled and still Management does not adhere to this clause then it amounts to an industrial dispute as it touches the condition of employment. On the basis of Clause No.6.3.1 of the settlement dated 30th December,1993, the appellant No.1 had asked to be considered for retirement at the age of 60 years. From this fact it gets clear that the basis of appellant’s case is the settlement arrived at between the Management and the employees and the enforcement of the same. The basis of the suit is not the violation of any terms of contract under the Law of Contract or common law. On the basis of the facts narrated above, it can safely be concluded that relief sought in the suit falls under Principle No.3 as laid down in the case of Premier Automobiles Ltd. (Supra). The dispute raised by the appellant is based on the implementation of Clause No.6.3.1 of settlement dated 30th December,1993. It would thus fall under Principle No.3. The words “under the Act” in Principle No.3 has to be understood as referring not only to the Industrial Dispute Act but also the settlements arrived at between the parties governing their terms of employment. Thus a suit involving the enforcement of rights and liabilities created by such settlements which are binding on the parties has necessarily got to be adjudicated only in the forum created by the Industrial Dispute Act provided, of course, that such a dispute amounts to industrial dispute within the meaning of Section 2(k) of the Act. The dispute regarding the enforcement of such a settlement which governs the terms and conditions of employment of the employees, to my mind, would fall under the definition of industrial dispute.
(11) That the contention raised by Mr.B.K.Pal that the dispute raised by the first appellant does not fall under Second Schedule of the Act hence Labour Court would not have jurisdiction is without force. The Second Schedule of the Act indicates as to what matters would fall within the jurisdiction of Labour Court. Reading of Second Schedule refutes the contention of Mr.Paul. Clause 6 of the Second Schedule covers such a dispute. Second Schedule is reproduced as under to establish this conclusion :- The Second Schedule (See Section 7) Matters Within The Jurisdiction Of Labour Court 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.Illegalilty or otherwise of a strike or lock-out; and 6.All matters other than those specified in the Third Schedule.”
(12) In fact reading of Clause 6 of Second Schedule shows that all matters other than those specified in the Third Schedule fall within the jurisdiction of the Labour Court. Third Schedule deals with the following matters, which is reproduced as hereunder:- The Third Schedule (See Section 7-A) Matters Within The Jurisdiction Of Industrial Tribunals 1.Wages, including the period and mode of payment; 2.Compensatory and allowances; 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. (13) Harmonious reading of Second and Third Schedule would indicate that the matter which did not fall under Third Schedule will be covered under the Second Schedule. The present matter can be said to be covered under Clause 6 of the Second Schedule, because it does not fall under the Third Schedule. Therefore, argument of Mr.Pal that dispute raised by the appellant does not fall under Second Schedule has no force. (14) The second limb of Mr.Pal's argument that since the appellant claimed damages for his illegal retirement, therefore, his case is governed by the general law of contract. It does not fall under the Industrial Dispute Act or in the jurisdiction of Labour Court. This argument of Mr.Paul has also no force. In Rajasthan Road Transport Corporation (Supra) Supreme Court in no uncertain words held that even if the dispute raised or relief claimed is based partly upon certified standing orders and partly upon general law of contract still that would be covered under the Industrial Dispute Act. Hence even if the appellant claimed damages besides declaration based on terms of his employment that does not mean his case would lie before the Civil Court.
(15) Lastly Mr.Pal contended that since there was breach of principal of natural justice as the appellant was not heard before his request was rejected, hence his cause of action is based under common law and covered by the principle No.2 of the Premier Automobiles Ltd. (supra). To my mind, this argument cannot be supported on the facts of this case. As already observed above the dispute in question relates to enforcement of appellant’s right arising from the settlement arrived at between the employer and the union of workers. These settlements touches workers employment. It has nothing to do with the general law of contract. Moreover, reading of the plaint would show that the appellant based his claim on the enforcement and implementation of Clause No.6.3.1 of the settlement which is in connection with the term of his employment and not on the basis of general law of contract, therefore, the Principal No.2 of Premier Automobiles Ltd. (Supra) will not be attracted to the facts of this case. As already observed the relief of the appellant being based on the terms of his employment the denial of which raises an industrial dispute within the meaning of Section 2(k) of the Act. Hence covered by the principal No.3 of Premier Automobiles Ltd. (supra) relief in suit involves enforcement of the terms of settlement arrived at between the Management and the workmen through its Union on the one hand and the appellant wanting the Management to discharge its obligation created under that settlement, hence the dispute has a flavouring of an industrial dispute which has to be tried under the Act of the forum created under the Act. The remedy for the appellant is to approach that forum created under the said Act.
(16) For the reasons stated above, I find no reason to interfere with the impugned order. Dismissed.
