JUDGMENT
S. Ashok Kumar, J.
1. As against the dismissal of the I.A. No: 14483 of 2003 in O.S. No. 1459 of 2003 filed by the revision petitioner/defendant, for rejection of the Plaint, this revision has been filed.
2. The brief facts of the case are as follows:
(a) The revision petitioner is a Company. The respondent/plaintiff filed the suit O.S. No. 1459 of 2003 before the City Civil Court, Chennai seeking the relief of declaration to declare that the orders dated 1.8.2000, 28.1.2000 read with Order dated 17.8.2000 read with orders dated 56.2001, 8.10.2001 and 3.6.2002 which are nothing but rejection of the representation of the respondent to treat the suspension period nearly two and half years as duty period and to pay the emoluments thereon, passed by the petitioner as null and void.
(b) The respondent was employed with the petitioner at the Madras Office as Assistant Officer (MTCE) (NE-9). His wife was employed as an Officer (HR). There was some misunderstanding between them. Pursuant to the same, on 30.5.1997 at 3.30 pm., the respondent had indulged in serious misconducts i.e, strangulating his wife, abusing lady members, threatening serener officers including the General Manager etc., Such misconducts were viewed seriously and disciplinary action was initiated against him by issuing a charge memo under the Industrial Employment (Standing Orders) Central Rules 1946. His wife was also issued with charge memo with regard to the same incident. Thereafter a domestic enquiry was conducted and during the enquiry proceedings the respondent participated and cross examined the management’s witnesses. After completion of the enquiry an order was passed whereby the respondent was compulsorily retired from service by order dated 12.1.2000. Thereafter at the specific request of the respondent in the Appeal, the said punishment was revoked and reduced to minor penalty of withholding of promotion for two years from the date of his fitness for promotion by order dated 1.8.2000. The said two orders amongst others are being challenged in the pending suit before the City Civil Court.
(c) Pending the suit, the revision petitioner/defendant filed the said I.A., to reject the Plaint claiming that the plaintiff has to approach only the Labour Court and the Civil Court has no jurisdiction to try such issues.
(d) However, the learned XIV Assistant City Civil Judge, Chennai dismissed the said I.A., holding that the respondent/plaintiff has filed the suit independently for the relief of declaration in respect of part of the impugned order in the disciplinary proceedings and therefore the Civil Court has jurisdiction to try the suit. Aggrieved over the same, the present revision has been filed.
3. Learned Counsel for the respondent/plaintiff contended that taking advantage of the misunderstanding between him and his wife, and making use of the moment of weakness immediately after the quarrel, some of the superior officers who were unhappy with the respondent for his trade union activities and his active role in the SC/ST Welfare Association obtained a complaint from his wife and based on that issued a charge memo which result in the domestic enquriy and the subsequent orders passed thereafter.
4. According to the learned Counsel when the major punishment of compulsory retirement was awarded, an appeal was preferred by the respondent and by order dated 7.8.2000 it was reduced to withholding of increments for two years and he was also not entitled to an pay and allowances during the period of his suspension except the subsistence allowance already paid to him. Moreover, the suspension period will not be counted as qualifying service for any purpose. According to the learned Counsel when the Appellate Authority had decided that a major penalty was not warranted and recommended for a minor penalty, the petitioners ought to have reviewed and reconsidered for treatment of the suspension period as duty period or atleast leave period accumulated to the respondent.
5. According to the learned Counsel for the respondent having resorted to all the remedies, the respondent has filed the suit for the relief of treating the suspension period as qualifying period and for pay during the said period. According to the learned Counsel, the it is not an industrial dispute as defined under Section 2(k) of the Industrial Disputes Act as there is no dispute between the employer and workmen which is connected with the employment or non employment or the terms of employment of the conditions of labour of any person. On the other hand it is a dispute between an employer and a single workman which cannot be an industrial dispute, and it is not also espoused through Trade Union or by a group of workmen. Moreover the dispute is regarding treatment of suspension period as qualifying service period and it is not a dispute relating to either discharge, dismissal, retrenchment or termination. Hence the issue does not even fall within the definition of a deemed industrial dispute within the meaning of Section 2A of the Act. Therefore, Section 2(k) will not apply to approach the Labour Court and the only remedy available to him is to approach the civil court as held by the Supreme Court in Rajasthan State Road Transport Corporation v. Krishna Kant .
6. Learned Counsel for the respondent also contended that the revision petitioner having passed the impugned orders by invoking the provisions of VSNL (conduct, Discipline and Appeal) Rules and not under the Industrial Employment Standing Orders, only a civil suit is maintainable as held by the Supreme Court in State of Haryana v. Randhir Singh 1995 Supp (1) SCC 144.
7. However, it is the case of the counsel for the revision petitioner that the charges levelled against the respondent are serious in nature which warrant punishment of dismissal from service, but in the present case the appellate authority had recommended for a minor punishment and therefore the petitioner has reduced the punishment and no more indulgence is called for as has been viewed by the Supreme Court in Mahindra and Mahindra v. N.B. Narawade . Moreover, the respondent had already approached the Labour Court and obtained certain relief and he cannot choose the forum of his choice.
8. Under these circumstance, the only issue to be decided is whether the issue is an industrial dispute or the civil court has the jurisdiction to try the suit?
9. Admittedly as against the major punishment of compulsory retirement from service, the respondent/workman approached the appellate authority and thereafter it has been reduced to minor punishment of withholding of increments for two years. It is also alleged that the suspension period has not been treated as a qualifying period for any purpose and pay and allowance for that period has also been rejected except the subsistence allowance paid during the said period. It is the claim of the respondent/workman that having recommended for minor punishment by the appellate authority, it is not fair on the part of the petitioner to treat the suspension period as not a qualifying service period and deny the wages and allowance. Thus his entitlement and treating the suspension period as duty period are all questions which could be adjudicated only by the labour Court.
10. In this respect it is noteworthy to mention the law laid down by the Hon’ble Supreme Court in Rajasthan SRTC v. Zakir Hussain wherein the Supreme court after taking into consideration of the catena of decisions held that “it is settled law that where an Act creates an obligation and enforces the performance in a specified manner, the performance cannot be enforced n any other manner”. Therefore it is clear that any dispute that requires interpretation and involves the recognition, observance or enforcement of right and obligation created by enactments like Industrial Employment (Standing Orders) Act, 1946, the only remedy shall be to approach the forum created by the Industrial Disputes Act, 1947.
11. Admittedly the respondent had earlier filed CCP. No. 18 of 2002 for performance incentive during the period in which his increments were withheld and also filed C.P. No. 416 of 2004 for certain medical benefits before the Labour Court at Chennai. Further, even as admitted in the Plaint, the disciplinary proceedings were initiated against him under the provisions of the Industrial employment (Standing Orders) Central Rules 1946. Moreover, the employees Union has been repeatedly espousing his cause to the petitioner. This has also been admitted in the Plaint.
12. In the decision reported in Rajasthan SRTC v. Zakir Hussain, cited supra, the Supreme Court also held that if reliance is placed on the Standing Orders, then the only remedy available to the workman is by way of reference under the provisions of the Industrial Disputes Act. In the said decision the workman who was an employee of the Rajasthan State Road Transport Corporation, placed reliance on the Standing Orders of the Rajasthan State Road Transport Corporation, Workshop Employees and also the terms of appointment. Therefore in the present case, even the contention of the learned Counsel for the respondent that the order issued in respect of the treatment of suspension period is under the VSNL (conduct, Discipline and Appeal) Rules and not under the Central Standing Orders or Rules and therefore civil court has jurisdiction is of no consequence. In the circumstances, this Court holds that the present dispute or difference between the individual workman and the employer would fall within the definition of Section 2A of the Industrial Disputes Act as the dispute involving the enforcement of rights and liabilities crated by the certified Standing Orders and VSNL (conduct, Discipline and Appeal) Rules, has necessarily got to be adjudicated only in the forums crated by the Industrial Disputes Act.
13. In the result, the CRP is allowed setting aside the orders passed in I.A. No. 14483 of 2003 in O.S. No. 1459 of 2003 passed by the learned XIV Assistant City Civil Court, Chennai. No costs.