JUDGMENT
M. Chockalingam, J.
1. All the six Appeals have arisen from a common judgment rendered by the learned Principal District Judge, Vellore, dated 19.4.1990 in A.S.Nos. 31, 32, 33, 34, 35, 36 of 1990 respectively reversing the judgment and decree of the learned District Munsif, Vellore dated 25.1.1990 in O.S.Nos. 192, 194, 195, 196, 197 and 198 of 1984 respectively.
2. The facts leading to the filing of the suits can be stated briefly as follows:
The respondents were employed as Pump Operators-cum- Electricians by the 2nd defendant namely, Tamil Nadu Water Supply Drainage Board from 18.12.1982 for the Vellore Water Supply Scheme and posted at the Booster Station, Vellore; that the respondents were deputed by the District Employment Officer, Vellore and were appointed thus by the 2nd defendant under the proceedings dated 11.12.1982; that they were continuously employed from the said date; that the 2nd defendant handed over the said water supply and Improvement Scheme along with the Booster Station to the 1st defendant namely Vellore Municipality; that the 1st defendant took over the scheme from 1.2.1984 for the continued maintenance; that the respondents continued to work under the Scheme at the Booster Station; that the 1st defendant with a view to deprive the rights of office of the respondents has called for fresh applications from the Employment Exchange, Vellore, for filling up the office by new hands; that on coming to know about the same, the representations dated 8.2.1984 were made to the Commissioner of the 1st defendant; that on receipt of the representations the 1st defendant sent a reply dated 10.2.1984 confirming its proposal to call for fresh hands and further directed the respondents to once again apply through the employment exchange afresh for the very post that the respondents were holding; that the conduct of the first defendant was mala fide, illegal and was in clear abuse of its official power as an Officer of a statutory body; that the Tamil Nadu Water Supply Drainage Board was an Industry as defined under the Industrial Disputes Act, 1947 and the respondents are the workmen and the terms and conditions of services of all workmen are all governed and regulated by the provisions of Industrial Employment (Standing Orders) Act, 1946 and Rules made thereunder; that the respondents cannot be terminated in violation of the said provisions and Act and Rules; that the respondents have served in the post for more than one year and hence the 1st defendant could not deny the right of office to the respondents by calling for fresh hands from the employment exchange since the rights of office of the respondents were common law rights and civil action can be initiated and the Civil Court has got jurisdiction to try the suit. Under such circumstances the respondents had brought forth the suits for declaration that the respondents are entitled to continue in the office as Pump Operators Cum-Electricians under the Vellore Water Supply Scheme of the Vellore Municipality and consequential permanent injunction against the defendants not to interfere with the respondents office except according to the procedure established by law.
3. The appellant herein who was the first defendant in all these suit has contested the same, alleging that the respondents/plaintiffs were not employees under the Municipality; that there was no contract of Employment between the appellant and the respondents; that the Municipality was not concerned with the appointment of the respondents by the 2nd defendant Water Board; that the appellant never took the respondent for its service; that the Municipality had no authority to appoint any employee for any posts without specific orders and sanction of the Government. As per the Government instructions the Municipality was liable to select the candidates sponsored by Employment Exchange for the posts sanctioned by the Government; that there was a specific bar that the Municipality was not empowered to take the Water Board employees as the employees of the Municipality and thus the suit was not maintainable.
4. The 2nd respondent who was the 2nd defendant in the said suits opposes the suits by stating that the respondents/plaintiffs were temporarily appointed as Pump Operators under the Nominal Muster Roll on daily wages for Vellore Water Supply Improvement Scheme Works at Karugambathur; that the said scheme was handed over to the Municipality with the existing staff and it was for the Municipality either to absorb the existing staff or to recruit the new staff; that as per the procedure normally followed when ever the scheme was completed and handed over to the local body, the workers who are working under the scheme, their services could be terminated without any prior notice if the local body was not willing to take them in the same scheme; that the then staff were being continued as required by the Municipality even though the scheme was handed over till new candidates were recruited from the Employment Exchange by the Municipal authorities; that if the allegations made in the plaint is true that the Civil Court has no jurisdiction to try the suit, the suit has got to be dismissed in limine; that the respondents were not entitled to the right of office on permanent basis since the appointment was purely on temporary basis under the Nominal Muster Roll so the plaintiffs had no locus standi to file the suit and were not entitled to get any order of injunction and they could not force the defendants to take them into regular service since their appointment were temporary and they could be terminated at any time without notice; that there is no provision to absorb the respondents to continue their work in the Board once the scheme was handed over to the Municipality for further maintenance and further when there was no vacancy for the posts; that the respondents/plaintiffs were not entitled for declaration and injunction as asked for; that the responsibility of the Water Board was over as soon as the scheme was handed over to the Municipality and hence the suit has to be dismissed.
5. On the rival pleadings, the trial Court framed the necessary issues and dismissed all the suits. Aggrieved by the decree and judgment of the trial Court, the plaintiffs preferred an appeal before the District Court. Reversing the judgment and decree of the Trial Court, the learned District Judge decreed the suit. Aggrieved by the same, the first defendant Municipality has preferred all these appeals. At the time of admission, the following substantial questions of law were framed.
(1) Whether the lower appellate Court is right in granting the relief of declaration and injunction under Section 34 of the Specific Relief Act when the first respondent has no right to hold the post in the event of the said post being filled up by the regular appointment?
(2) Whether the lower appellate Court’s finding to the effect that it has jurisdiction to entertain the suit is sustainable in law?
(3) Whether the first respondent is correct in invoking the jurisdiction of the Civil Court when the matter is one of the dispute arising under the provisions of the Industrial Disputes Act?
6. As seen above, the first respondent in all these appeals filed the suits seeking reliefs of declaration that they are entitled to continue in office as Pump Operators-cum- Electricians under the Vellore Water Supply Scheme of the Vellore Municipality with consequential permanent injunction. The said claim was vehemently contested by the District Municipality, the appellant herein stating that there was no contract of employment between the plaintiffs and the Municipality; that the Municipality never took the plaintiffs for service; that as per the instructions, the Municipality was liable to select the candidates sponsored by the Employment Exchange for the sanctioned posts; the Tamil Nadu Water Supply and Drainage Board, Vellore, took the stand that the first respondent was temporarily appointed as Pump Operators under the Nominal Muster Roll on daily wages for Vellore Water Supply Improvement Scheme and the said scheme was handed over to the appellant Municipality with the existing staff and it was the look out of the Municipality either to absorb the existing staff or to recruit new staff; that the Civil Court has no jurisdiction to try the suit since it is an Industrial Dispute that the appointment of the first respondent was purely temporary on daily wages and hence he could not seek the reliefs as asked for before the Civil Court.
7. Arguing for the appellants, learned Counsel would submit that the first appellate Court should have held that the Civil Court had no jurisdiction to try the suit since the dispute is between the employer and employee and it has to be necessarily to be resolved though the Special Court established under the statute; that the District Court was in error in holding that the Civil Court had jurisdiction to entertain the suit without considering the legal plea as to the jurisdiction of the Civil Court under the facts and circumstances of the case; that it is pertinent to note that the first respondent could not claim appointment to the permanent post which was to be filled up as per the Government instructions by the appellant and the employment of the first respondent by the 2nd respondent was on temporary basis; that even assuming without considering that the water scheme was once sponsored by appellant, the employment of the first respondent by the second respondent was temporary arrangement to commission the scheme and that the fact that the second respondent has given the scheme to the appellant itself would show that the right to appoint permanent persons after calling for names from the employment exchange was unfettered one; that the suit itself was not maintainable and the relief claimed by the first respondent could not be granted under the provisions of the specific relief act since he had no pre-existing legal rights to continue in the post; that the grant of relief by the first appellate Court was in effect granting relief of specific performance to enforce the personal contract of services against the appellant which was not permissible in law; that even as per the averments contained in the pleadings of the first respondent, the matter is purely within the jurisdiction of the forum constituted in the Industrial Disputes Act and the first appellate Court had not seen Exs.A-2, A-3 and in the proper perspective; that there was no employer employee relationship between the appellant and the first respondent and hence the findings to the effect of the first respondent cannot be treated as temporary employees which were wholly unsustainable; that the interpretation regarding the applicability of the provisions of the Industrial Employment (Standing Orders) Act, 1946 were not correct in law and even assuming if such provisions were made applicable to the first respondent, the appellant was also given power to remove the temporary servant to fill up the permanent post by way of regular appointment after terminating the services of the first respondent; that without looking at the proper perspective on Ex.A-1, the first appellate Court has given finding that the first respondent was entitled to file a suit for declaration in the event of his termination contrary to the provisions of Act and the Standing Orders; that the lower Court was not correct in holding that merely because the payment was made by the appellant to the first respondent though employment by the 2nd respondent, the employer- employee relationship existed between them and the first respondent was entitled between them and the first respondent was entitled to continue the same post even after the scheme was handed over to the appellant and for all these reasons the judgment of the first appellate Court reversing the judgment of the trial Court has got to be set aside and all the suits have got to be dismissed.
8. Contrary to the contentions of the appellant side, learned Counsel for the respondents would submit that the First Appellate Court was right in setting aside the judgment of the trial Court and decreeing the suit; that the suit filed by the first respondent in all the appeals seeking for declaratory relief and consequential permanent injunction was well entertainable by the Civil Court. It is pertinent to note that the first respondents/plaintiffs were appointed through employment exchange in the year 1982 and that they were employed as Pump Operators-cum- Electricians by the 2nd respondent with effect from 18.12.1982 for the Vellore Water Supply Scheme and posted at the Booster Station at Vellore; that it is not disputed that the first respondent/plaintiffs were continuously employed since their date of appointment i.e., 18.12.1982; that the 2nd respondent Water Supply and Drainage Board handed over the scheme along with the Booster Station to the appellant Municipality; that the Municipality after taking over the scheme on 1.2.1984 has been maintaining the same; that it is pertinent to note that the plaintiffs/first respondent in all the appeals continued to work under the scheme at the Booster Station; that while they were continued in their employment as stated above, the first defendant Municipality in order to deprive their right of office has called for fresh applications from the employment office; that when it was objected to, the plaintiffs/first respondent were informed that they should once again apply through Employment Exchange, Vellore, afresh for the same posts; that the denial of the right of office of the first respondent in all the appeals is in violation of the statutory provisions; that the first respondent has been working in the same post for more than one year. The appellant cannot deny the right of office to the plaintiffs by calling for fresh hands from Employment Exchange; that it is defined that the Tamil Nadu Water Supply and Drainage Board was an Industry under the Industrial Disputes Act; that the first respondent in all the appeals were the workmen and the terms and conditions of service of all the workmen are governed and regulated by the provisions of Industrial Employment (Standing Orders) Act, 1946 and hence the first respondent cannot be terminated from employment in violation of the provisions and thus the first appellate Court was perfectly correct in granting the relief as asked for and hence the judgment of the first appellate Court has got to be sustained.
9. Added further the learned Counsel that the contention of the appellate side that the Civil Court has no jurisdiction to try the suit and hence the suit should have been dismissed as maintainable has got to be rejected in view of the pronouncement of the Apex Court. In support of the said contention learned Counsel for the respondent relied on the decisions: (1) Sirsi Municipality v. Cecilia Kom Francis Tellis (1973)1 L.L.J. 226; (2) Central Co-operative Bank Limited, Kumbakonam v. M. Parthasarathy (1988)2 L.L.N. 107; (3) Ram Sahan Rai v. Sachiv Samanya Prabandhak and Prathana Bank, Head Office, Morabad through its Chairman v. Vijay Kumar Goel .
10. What is challenged herein is the judgment of the learned District Judge granting declaration that the first respondent in all the appeals were entitled to continue in office as pump operators cum electricians under the Vellore Water Supply Scheme of the Vellore Municipality and consequential permanent injunction.
11. Admittedly the first respondent in all the appeals were appointed as pump operators-cum-electricians by the second respondent viz., Tamil Nadu Water Supply and Drainage Board, Vellore through the employment exchange. On their appointment, the first respondent in all the appeals were posted at the Booster Station at Vellore. The Water Supply and Drainage Board handed over the scheme along with the Booster Station to the first defendant/appellant Municipality. On 1.2.1984, the appellant Municipality took over the scheme for maintenance along with the working staff therein inclusive of the first respondent in all the appeals. It is pertinent to point out at this juncture that the first respondent in all the appeals continue to work as Pump Operators-cum- Electricians, while the scheme is under the management of the appellant Municipality and they are also paid by the appellant. While the first respondent in all the appeals were continuously employed and paid by the appellant as stated above, the appellant called for fresh applications from the employment exchange, which was objected to by the first respondent by way of representations dated 8.2.1984. The appellant sent a reply confirming its stand that it was to recruit hew hands through employment exchange and directed the first respondent in all the appeals to once again apply through the employment exchange, if they so desired. The first respondent in all the appeals were appointed by the second respondent with effect from 18.12.1982 and their appointment was also only through the employment exchange. They were continuously working even at the time when the appellant took over the scheme on 1.2.1984 for maintenance. Thus it would be clear that at the time when the appellant Municipality took over the maintenance of the scheme from the second respondent, the first respondent in all the appeals were working more than one year. The contention of the appellant’s side that when the scheme was completed and handed over to the local bodies like the appellant, it has every right to select the candidates sponsored by the employment exchange for the port sanctioned by the Government and not otherwise and hence the first respondent in all the appeals cannot be permitted to say that they are continuing in their employment cannot be countenanced. It remains to be stated that when the scheme was handed over to the appellant Municipality for maintenance of the same, it was handed over with the existing staff including the first respondent herein. The first appellate Court has relied on the evidence of D.W.1 and has stated that the services in respect of which the first respondent in all the appeals were employed still continued. The lower appellate Court was perfectly correct in stating that though Ex.A-1 order appointing the first respondent in all the appeals would state that they were appointed on temporary basis, their services have got to be construed as regular in view of the continuity of their service for a long time and since they have been in service more than one year, their services could not be terminated without issuing notice and that too without proper reason therefor .Equally the contention putforth by the appellant that the first respondent in the appeals were not employed by the appellant Municipality on recruitment through the employment exchange cannot be countenanced as a proper reason to terminate their services.
12. The next contention that was raised by the appellant’s side is that the Civil Court has no jurisdiction to try the suit, since it is a dispute between the employer and employee and it has to be necessarily dissolved through the Special Court established under the statute Supporting the case of the appellant, the learned Counsel appearing for the second respondent would submit that the trial Court was perfectly correct in dismissing the suit and that the lower appellate Court has erred in accepting the contentions put forth by the appellant and the second respondent. In support of her contention the learned Counsel for the second respondent has relied on a decision reported in The Premier Automobiles v. K.S. Wadke and Ors. . In answer to the above contentions, the learned Counsel for the first respondent would submit that the first respondent has right to initiate a civil action while an attempt was made to deprive of his right in violation of the provisions of the Industrial Employment (Standing Orders) Act, 1946 and rules thereunder Under the stated circumstances, the Court is of the view that the following decisions are applicable; (1) Sirsi Municipality And Cecilia Kom Francis Tellis (1973)1 L.L.J. 226 and (2) Ram Sahan Rai v. Sachiv Samanaya Prabandhak and another . The Hon’ble Apex Court in the first cited decision (1973)1 L.L.J. 226 has held as follows:
Held, cases of dismissal of a servant fall under 3 broad heads, i. e., (1) the first relates to relationship of master and servant governed purely by contract of service, in which case a declaration of unlawful termination and restoration to service is not permissible under the law of Specific Relief Act, (2) the second type of cases of master and servant arising under industrial law which provides for reinstatement in case of wrongful dismissal and (3) the third category of cases of master and servant arising in regard to the servant in the employment of the state or of other public or local authorities or bodies created under statute.
In the case of servants of the State or of local authorities or statutory bodies, Courts have declared in appropriate cases the dismissal to be invalid if the dismissal is contrary to rules of natural justice or if the dismissal is in violation of the provision of the statute. Apart from the intervention of statute there would not be a declaration of nullity in case of dismissal of a servant of the State or other local authorities or statutory bodies.
In the second cited decision , the Hon’ble Apex Court has held thus:
Once it is held that the defendant is a statutory body and is a state and in the matter of passing an order of dismissal of an employee, it did not follow the mandatory provisions of the rules and regulations and the order was passed in gross violation of principles of natural justice, then the third exception to the general principle that contract of personal service cannot ordinarily be specifically enforced, as indicated in S.R. Tewari case, would apply.
Needless to say that in the instant case, the appellant Municipality who is strictly bound to follow the mandatory provisions of the rules and regulations has made an attempt to terminate the services of the first respondent in all the appeals without following the mandatory provisions of the rules and regulations and in gross violation of the principles of natural justice, and the same can be enforced by a Civil Court. Hence, the civil action laid by the first respondent in all the appeals seeking the enforcement of the right was well maintainable. Thus all the contentions put forth by the appellant’s side do not merit acceptance or approval by this Court. The lower appellate Court has rightly granted the relief of declaration and permanent injunction as asked for by the first respondent by setting aside the judgment of the trial Court. The Court is of the view that the judgment of the lower appellate Court which is based on well founded reasonings does not require any interference, and hence the same is sustained.
13. In the result, all the second appeals are dismissed leaving the parties to bear their costs.