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Sudhir Kumar Sharma vs Bundel Khand Kshetriya Gramin … on 15 July, 2002

Madhya Pradesh High Court
Sudhir Kumar Sharma vs Bundel Khand Kshetriya Gramin … on 15 July, 2002
Equivalent citations: 2003 (97) FLR 184, 2002 (4) MPHT 114
Author: K Lahoti
Bench: K Lahoti


JUDGMENT

K.K. Lahoti, J.

1. Plaintiff has filed the present appeal challenging the judgment and decree passed by the Lower Appellate Court by which the suit of appellant was dismissed reversing the judgment and decree of the Trial Court.

2. Short facts necessary for the decision of the present appeal are that the appellant was appointed under respondent on 10-6-1978 on the post of Cashier-cum-Clerk as per the order of Board of Directors. Thereafter as per recommendations of the Board of Directors, he was promoted on 1-6-1990 as Senior Upper Division Clerk. On 13-6-1980, he joined on the promoted post at Branch Chandnagar. This order of promotion was made for 2 years on probation with certain conditions, but on 26-6-1980, he was reverted without any notice but with stigma. Against the order of reversion, he preferred an appeal but the appeal was not forwarded to the competent authority for decision. As this order was illegal and has been passed without following principle of natural justice though he preferred an appeal, but the same was not decided. Again on 31-5-1984, he moved an appeal before Board of Directors but this was also not decided and the defendant/Bank vide letter dated 8-6:1984 informed that his matter cannot be reconsidered. On this ground, the suit was filed for declaration that the order of reversion dated 26-6-1980 be declared null and void and he be permitted to continue on the post on which he was promoted and monetary benefit be also given.

3. The defendant contested the suit on the ground that the appellant was promoted on probation for a period of two years, but during this period, his activities were indisciplined and indecent. On this ground, he was reverted. The appeal filed by the plaintiff was barred by limitation and not maintainable/ At the relevant time, the plaintiff was posted at Chandnagar, District Chhatar-pur. The suit was also barred by time. The dispute was within the purview of Industrial Disputes Act. In the circumstances, the Civil Court has no jurisdiction to try the suit. On these grounds, the suit was prayed to be dismissed.

4. On 24-2-1992, the Trial Court looking to the pleadings considered that only two legal issues are in dispute and accordingly reframed the issues. Both the parties have not adduced any evidence and after hearing final argument, suit was decreed.

5. The learned Trial Court in its judgment held that the suit is maintainable in the Civil Court relying on the judgment of the Apex Court in Premier Automobiles Limited v. K.S. Wadke (AIR 1975 SC 2238). The suit is within limitation and the plaintiff was reverted without any notice and opportunity of hearing and he has been reverted with the stigma. Though the defendant was empowered to revert the plaintiff without any stigma but said order (Ex. P-2) is with stigma which cannot be passed without any prior opportunity of hearing and principle of natural justice violated. Plaintiff has not been given opportunity of hearing while the above said order amounts punishment. On this ground, the order was found to be illegal and without jurisdiction. Consequently, the suit of the plaintiff decreed declaring the order dated 26-6-1980 illegal and void and the plaintiff was directed to be placed on the same position as he was working prior to 26-6-1980 with all monetary benefits. Against this, respondent preferred an appeal. The learned Lower Appellate Court held that (a) the suit is not maintainable in Civil Court as dispute between the parties is purely industrial dispute, (b) the procedure adopted by the Trial Court on 24-2-1992 is not correct and (c) that the respondent/defendant cannot be permitted to raise the question of limitation. Consequently, the appeal was allowed and the suit of plaintiff was dismissed.

6. Aggrieved by the judgment and decree passed by the learned Lower Appellate Court, the plaintiff filed the present appeal. This appeal was admitted on 21-2-94 on following substantial questions of law:–

(1) “Whether the First Appellate Court committed a grievous (grave) error of law in holding that the jurisdiction of the Civil Court in the matter of reversion of the plaintiff is barred ?”

(2) “Whether the First Appellate Court was right in making a direction for returning of plaint for presentation of the same before a Competent Court ?”

7. The learned Counsel for the appellant submits that in view of the law laid down by the Apex Court in Premier Automobiles v. K.S. Wadke (AIR 1975 SC 2238) the suit is maintainable. The appellant has not made any prayer under Industrial Disputes Act. In view of the specific provisions of Section 2A of the Industrial Disputes Act, 1947 the suit is maintainable as case of reversion does not come within the purview of Section 2A of the Act. The appellant individually cannot make a reference of the dispute and the dispute under Section 2(k) does not cover the case of the appellant and the appellant cannot be compelled to approach Union for reference as required under Section 10 of the Act.

8. On the contrary, the learned Counsel for the respondent submits that the present dispute is an industrial dispute. The learned Counsel for the respondent relies on C.T. Nikam v. Municipal Corporation of Ahmedabad (AIR 2002 SCW 710 : AIR 2002 SC 997) and submits that the dispute is an industrial dispute and it has rightly been held in the case that the Civil Court has no jurisdiction to entertain the suit and has rightly passed the order of return of the plaint to the plaintiff.

9. Considering the rival contentions raised by the parties, the legal position in the case deserves to be discussed. For ready reference, relevant definition of “industrial dispute” as defined in the Industrial Disputes Act, 1947 is as under:–

“2 (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.

Section 2A of the Act:

2-A. 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 the 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 workmen is a party to the dispute.”

10. The learned Counsel for the appellant submits that under Section 2(k), the dispute can be raised by workmen. The legislature purposely has not used the word ‘workman’. There was controversy on the question whether an employee individual can file an industrial dispute in view of the definition of Section 2(k). To settle the position, the legislature subsequently amended the I.D. Act and on 1-12-1965 Section 2A was incorporated by which in following circumstances individual workman was given right to file an industrial dispute directly without approaching any union under Industrial Disputes Act.

(a) discharge;

(b) dismissal;

(c) retrenchment;

(d) or otherwise termination of the services of an individual workman.

11. In above said circumstances, the jurisdiction of Civil Court is barred and in other circumstances, an individual employee can approach Civil Court for redressal of the grievance and the jurisdiction of the Civil Court is not barred. The learned Counsel for the appellant has drawn the attention of this Court towards para 23 of the judgment passed by the Apex Court in Premier Automobiles’ case (supra) which reads as under :–

“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 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 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 Section 33C or the raising of an industrial dispute, as the case may be.”

12. Relying on the above judgment, the learned Counsel for the appellant submits that the case of the appellant is covered under the above said law of the Apex Court and the Civil Court has jurisdiction to entertain the dispute. In the present case, order of promotion has been cancelled and the appellant has been reverted back. The above said order does not come within the four conditions as envisaged under Section 2A of the Act. The Apex Court in the case of Rajasthan Stole Road Transport Corporation and Anr. v. Krishna Kant and Ors., (1995) 5 SCC 75, held :–

“20. The expression “Industrial Dispute” is defined in Section 2(k) to mean any dispute or difference (i) between employers and employers; (ii) between employers and workmen; and (iii) between workmen and workmen, provided such dispute is connected with the employment, non-employment terms of employment or conditions of labour of any person. It is well settled by several decisions of this Court that a dispute between the employer and an individual workman does not constitute an industrial dispute unless the cause of the workman is espoused by a body of workmen (see Bombay Union of Journalists v. “The Hindu” 9). Of course, where the dispute concerns the body of the workers as a whole or to a section thereof, it is an industrial dispute. It is precisely for this reason that Section 2A was inserted by Amendment Act 35 of 1965. It says “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 workmen is a party to the dispute1′. By virtue of this provision, the scope of the concept of industrial dispute has been widened, which now embraces not only Section 2(k) but also Section 2A. Section 2A, however, covers only cases of discharge, dismissal, retrenchment or termination otherwise of services of an individual workman and not other matters, which means that – to give an example – if a workman is reduced in rank pursuant to a domestic enquiry, the dispute raised by him does not become an industrial dispute within the meaning of Section 2A. (However, if the union or body of workman espouses his cause, it does become an industrial dispute). We have given only one instance; there may be many disputes which would not fall within Section 2(k) or Section 2A. It is obvious that in all such cases, the remedy is only in a Civil Court or by way of arbitration according to law, if the parties so choose. The machinery provided by the Industrial Disputes Act for resolution of disputes (in short Section 10 or 12) does not apply to such a dispute,”

The above said judgment has been referred by the Apex Court in case of C T. Nikam (supra). In para 4 of the judgment, the Apex Court has held :–

“The three-Judge Bench in Rajasthan State Road Transport Corporation (supra), summarised the principles as below:–

(1) Where the dispute arises from general law of contract, i.e., where reliefs are claimed on the basis of the general law of contract, a suit filed in Civil Court cannot be said to be not maintainable, even though such a dispute may also constitute an “industrial dispute” within the meaning of Section 2(k) or Section 2A of the Industrial Disputes Act, 1947.”

13. In view of the above said, the present suit which was filed challenging the stigmatic reversion order, which was passed without holding any enquiry or issuance of show-cause notice, civil suit was maintainable as the appellant has claimed his relief based on general law and no specific provision of Industrial Disputes Act was invoked for setting aside the order. In the circumstances, the present suit was maintainable in view of the law laid down by the Apex Court in Premier Automobiles and Rajasthan State Road Transport Corporation (supra). The learned Lower Appellate Court erred in holding that the dispute lies within the jurisdiction of the Labour Court. Apart from this, the present suit was filed on 4-9-1986, a period of 17 years has elapsed. The Industrial Disputes Act was enacted by the Parliament to provide an alternative dispute-resolution mechanism to the workman, a mechanism which is speedy, inexpensive and effective forum for resolution of dispute arising between workman/workmen and employer. The idea behind it is to ensure speedy remedy and not to lengthy procedure as is applicable in Civil Courts. In the circumstances, the workman was given efficacious remedy. In the present case, the suit which was filed on 4-9-1986 and was decided on 24-3-1992 by Trial Court, if the appellant is directed to go back to the Industrial Court, he has to face another inning of litigation. The question is only reversion and after such period of more than 17 years litigating in the Civil Court, it will be injustice to the appellant to direct him to approach the forum as per the Industrial Disputes Act. It is also doubtful whether the matter of appellant will be referred to Labour Court as required under Section 10 of the Industrial Disputes Act, 1947, after such a long time. In the circumstances, the suit of the plaintiff/appellant was maintainable in the Civil Court in view of the law laid down by the Apex Court in Premier Automobile’s case and Rajasthan State Road Transport Corporation’s case (supra) which have been followed in the case of C.T. Nikam (supra) by the Apex Court.

14. Now the question remains, whether the Trial Court order dated 24-2-1992 is correct. On the perusal of the order dated 24-2-1992, the Trial Court on the basis of the admission of the defendant that the order (Ex. P-2) was passed without any show-cause notice or opportunity of hearing. The respondent has not shown any provision empowering it to pass such an order. In the circumstances, the order could not be passed without affording adequate opportunity of hearing to the appellant and it was passed without following principle of natural justice. In these circumstances, the learned Trial Court has rightly passed the order dated 24-2-1992 that the suit involves only legal question and no evidence is necessary on the point. The question of limitation has been considered by both the Courts below. The Appellate Court, while considering the question of limitation, relying on the judgments of Madhya Pradesh State Road Transport Corporation v. Dashrath (1990 JLJ 489) and M.P. State v. Ramarao Krishna Rao Lalsikar (1990 JLJ 315) held that the State or Corporation should not take the plea of limitation against their employees and held that the suit is within limitation and on this ground affirmed the findings of the Trial Court.

15. In the circumstances, the suit filed by the plaintiff was within limitation and order (Ex. P-2) which was passed with stigma, without any notice and opportunity of hearing against the appellant is illegal and has rightly been set aside by the Trial Court.

16. In view of the above said discussion, this appeal is allowed and the judgment and decree passed by the Lower Appellate Court is set aside and that of Trial Court is restored. Suit of the appellant is decreed with costs throughout. Counsel’s fee Rs. 2000/- if certified.

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