& Ors. Vs. Deen Dayal Sharma  INSC 354 (5 May 2010)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3027 OF
2007 R.S.R.T.C. & Ors. ...Appellants Versus Deen Dayal Sharma ...Respondent
JUDGEMENT R.M. Lodha, J.
jurisdiction of civil court to order reinstatement of the respondent and grant
of financial benefits of service to him has been questioned in this appeal.
respondent was appointed as conductor by the Rajasthan State Road Transport
Corporation - (for short, `appellants') on October 11, 1982. On January 17,
1983, while the respondent was on duty on Badi Chopad - Amer route, a surprise
inspection was done and six passengers were found travelling in the bus without
tickets. The respondent was dismissed from service vide order dated January 24,
1983. The respondent preferred departmental appeal against the order of
dismissal dated January 24, 1983 but the said appeal was dismissed on September
5, 1985. He preferred review before the reviewing authority which too was
dismissed on April 13, 1987. The respondent then filed a civil suit in the
Court of Additional Munsif and Judicial Magistrate No.2, Jaipur City, Jaipur against
the appellants praying therein that the order of dismissal dated January 24,
1983 be declared unlawful, illegal, void and ineffective being contrary to the
Standing Orders as no departmental enquiry was held and he be held to be
entitled to all benefits as if he continued in service.
Although no written statement was filed by the appellants, they challenged the
jurisdiction of civil court orally and submitted that the dispute being an
industrial dispute, it can only be resolved by the Industrial Tribunal.
Trial Judge after recording the evidence of the respondent, heard parties and
overruled the objection raised by 2 the appellants about the jurisdiction of
the civil court and vide judgement and decree dated March 6, 1991 declared the
order of dismissal dated January 24, 1983 illegal and ordered reinstatement of
respondent and other financial benefits to him.
appellants challenged the judgement and decree passed by the Trial Court in
appeal before the District Judge, Jaipur City but that was dismissed on the
ground of delay on January 20, 2001.
second appeal preferred by the appellants before the High Court was dismissed
on November 7, 2005 holding that concurrent finding of facts by the courts
below warranted no interference. It is from this order that present appeal by
special leave arises.
7. In The
Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke of Bombay and Others1, a
three Judge Bench of this Court considered Section 9 of the Civil Procedure
Code, 1908, the provisions of Industrial Disputes Act, 1947
and large number of decisions by this Court, as well as English and other
Indian Courts and summed up the principles applicable to 1 (1976) 1 SCC 496 3 the
jurisdiction of the civil court in relation to an industrial dispute thus :
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.
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
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.
the right which is sought to be enforced is a right created under the Act such
as Chapter VA then the remedy for its enforcement is either Section 33C or the
raising of an industrial dispute, as the case may be."
paragraph 24 of the report, this Court further clarified:
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
courts, therefore, will have hardly an occasion to deal with the type of cases
falling under principle No. 2.
industrial disputes by and large, almost invariably, are bound to be covered by
principle No. 3 stated above."
8. In the
case of Rajasthan State Road Transport Corporation and Another v. Krishna Kant
and Others2, this Court was concerned with the question, where the dispute
between the employer and the workmen involves the recognition, application or
enforcement of the certified Standing Orders, whether jurisdiction of civil
court to entertain a suit with respect to such dispute is barred. A three Judge
Bench extensively considered the nature of the Standing Orders; the scope of
`Industrial Dispute' and a long line of cases of this Court, including Premier
Automobiles1, and summarized the legal position as follows:
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 2- A of the Industrial Disputes Act, 1947.
Where, however, the dispute involves recognition, observance or enforcement of
any of the rights or obligations created by the Industrial Disputes Act, the only remedy is to approach the forums created by the
Similarly, where the dispute involves the recognition, observance or
enforcement of rights and obligations created by enactments like Industrial
Employment (Standing Orders) Act, 1946 -- which can be called "sister
enactments" to Industrial
Disputes Act -- and which do not provide a forum for
resolution of such disputes, the only remedy shall be to approach the forums
created by the Industrial Disputes Act
provided 2 (1995) 5 SCC 75 5 they constitute industrial disputes within the
meaning of Section 2(k) and Section 2-A of Industrial Disputes Act or where such enactment says that such dispute shall be
either treated as an industrial dispute or says that it shall be adjudicated by
any of the forums created by the Industrial Disputes Act. Otherwise, recourse to civil court is open.
(4) It is
not correct to say that the remedies provided by the Industrial Disputes
Act are not equally effective for the reason that
access to the forum depends upon a reference being made by the appropriate
to make a reference conferred upon the Government is to be exercised to
effectuate the object of the enactment and hence not unguided. The rule is to
make a reference unless, of course, the dispute raised is a totally frivolous
one ex facie. The power conferred is the power to refer and not the power to
decide, though it may be that the Government is entitled to examine whether the
dispute is ex facie frivolous, not meriting an adjudication.
Consistent with the policy of law aforesaid, we commend to Parliament and the
State Legislatures to make a provision enabling a workman to approach the
Labour Court/Industrial Tribunal directly -- i.e., without the requirement of a
reference by the Government -- in case of industrial disputes covered by Section
2-A of the Industrial
Disputes Act. This would go a long way in removing
the misgivings with respect to the effectiveness of the remedies provided by
the Industrial Disputes Act.
certified Standing Orders framed under and in accordance with the Industrial
Employment (Standing Orders) Act, 1946 are statutorily imposed conditions of
service and are binding both upon the employers and employees, though they do
not amount to "statutory provisions". Any violation of these Standing
Orders entitles an employee to appropriate relief either before the forums
created by the Industrial
Disputes Act or the civil court where recourse to
civil court is open according to the principles indicated herein.
policy of law emerging from Industrial Disputes Act and its sister enactments
is to provide an alternative dispute-resolution mechanism to the workmen, a
mechanism which is speedy, inexpensive, informal and unencumbered by the
plethora of procedural laws and appeals upon appeals and revisions applicable
to civil courts. Indeed, the powers of the courts and tribunals 6 under the Industrial Disputes
Act are far more extensive in the sense that they can
grant such relief as they think appropriate in the circumstances for putting an
end to an industrial dispute."
Rajasthan State Road Transport Corpn. and Others v. Zakir Hussain3, this Court
held that the employees of the State Road Transport Corporation are not civil
servants, and they are not entitled to protection of Article 311 (2) of the
Constitution. While dealing with the question of jurisdiction of civil court in
the matters of industrial dispute, this Court applied the principles enunciated
in Krishna Kant2 in the following words :
Court has very explicitly summarised the principles flowing from the discussion
in the judgment in para 35 and applying the above principles this Court has
categorically held that the suits filed by the employees in those appeals were
not maintainable in law......
the foregoing reasons, we hold that the respondent ought to have approached the
remedies provided under the Industrial Disputes Act. He has
miserably failed to do so but approached the civil court, which on the facts
and circumstances of the case has no jurisdiction to entertain and try the
three Judge Bench of this Court in the case of Rajasthan SRTC and Others v.
Khadarmal4, again considered the question regarding jurisdiction of civil court
in the matter of termination of service of a probationer and following the 3
(2005) 7 SCC 447 4 (2006) 1 SCC 59 7 judgments of this Court in Zakir Hussain3
and Krishna Kant2 held :
In our view, as the civil court had no jurisdiction, the decrees which were
passed have no force of law. They are accordingly set aside. In our view, there
can be no direction to reinstate or to continue reinstatement...."
appears that in the case of Rajasthan State Road Transport Corporation and
another v. Bal Mukund Bairwa5, a two Judge Bench of this Court noticed some
conflict in the judgments of this Court in Krishna Kant2 and Khadarmal4 and,
accordingly, referred the matter to a larger Bench. A three Judge Bench of this
Court in its decision titled Rajasthan State Road Transport Corporation and
Another v. Bal Mukund Bairwa (2)6, revisited the issue with regard to
jurisdiction of civil court to entertain suits questioning the orders of
termination and held as follows :
If an employee intends to enforce his constitutional rights or a right under a
statutory regulation, the civil court will have the necessary jurisdiction to
try a suit. If, however, he claims his right and corresponding obligations only
in terms of the provisions of the Industrial Disputes Act or the sister laws so called, the civil court will have
none. In this view of the matter, in 5 (2007) 14 SCC 41 6 (2009) 4 SCC 299 8
our considered opinion, it would not be correct to contend that only because
the employee concerned is also a workman within the meaning of the provisions
of the 1947 Act or the conditions of his service are otherwise governed by the
Standing Orders certified under the 1946 Act, ipso facto the civil court will
have no jurisdiction. This aspect of the matter has recently been considered by
this Court in Rajasthan SRTC v. Mohar Singh [(2008) 5 SCC 542]. The question as
to whether the civil court's jurisdiction is barred or not must be determined
having regard to the facts of each case.
the infringement of the Standing Orders or other provisions of the Industrial Disputes
Act are alleged, the civil court's jurisdiction may
be held to be barred but if the suit is based on the violation of principles of
common law or constitutional provisions or on other grounds, the civil court's
jurisdiction may not be held to be barred. If no right is claimed under a
special statute in terms whereof the jurisdiction of the civil court is barred,
the civil court will have jurisdiction.
the relationship between the parties as employer and employee is contractual,
the right to enforce the contract of service depending on personal volition of
an employer is prohibited in terms of Section 14(1)(b) of the Specific Relief Act,
1963. It has, however, four exceptions, namely, (1)
when an employee enjoys a status i.e. his conditions of service are governed by
the rules framed under the proviso appended to Article 309 of the Constitution
of India or a statute and would otherwise be governed by Article 311(2) of the
Constitution of India; (2) where the conditions of service are governed by
statute or statutory regulation and in the event mandatory provisions thereof
have been breached; (3) when the service of the employee is otherwise protected
by a statute; and (4) where a right is claimed under the Industrial
Disputes Act or sister laws, termination of service
having been effected in breach of the provisions thereof.
appellant Corporation is bound to comply with the mandatory provisions of the
statute or the regulations framed under it. A subordinate legislation when
validly framed becomes a part of the Act. It is also bound to follow the
principles of natural justice. In the event it is found that the action on the
part of the State is violative of the constitutional provisions or the
mandatory requirements of a statute or statutory rules, 9 the civil court would
have the jurisdiction to direct reinstatement with full back wages."
learned counsel for the respondent submitted that controversy with regard to
the jurisdiction of civil court in entertaining a suit wherein the order of
termination is challenged on the ground of violation of principles of natural
justice has been set at rest in Bal Mukund Bairwa (2) 6. She heavily relied
upon paragraph 39 of the report quoted above and contended that civil court
rightly entertained, tried and decreed the suit in the present matter.
shall first notice the case set up by the respondent in the plaint. It was
That defendants did not hold any departmental enquiry against the plaintiff in
respect of the said remark and nor in this regard the plaintiff was accorded
any opportunity of defence and hearing. The plaintiff has been dismissed from
service on the basis of the said false remark without according him the
opportunity of defence and hearing. As per section 35 of Standing Orders if
there is any allegation of misconduct against any employee then holding
departmental enquiry against him is necessary and thereafter on proving the
charges against him he may be punished but in the instant case Defendants did
not hold any departmental enquiry for the said false remark put against the
Plaintiff and nor the plaintiff was accorded opportunity of defence and hearing
and order of dismissal of the plaintiff from service has been passed which
being contrary to Section 35 of Standing Orders and principles of natural
justice is liable to be quashed.
That the order of dismissal of service of the Plaintiff is of Penal nature. In
the order of dismissal of service issued against the plaintiff the plaintiff's
service being not satisfactory and breach of the terms and conditions of
appointment due to which he has been dismissed from service which is a blot on
the character of the Plaintiff. Which of the Conduct has been breached by the
Plaintiff is not clear from the order of dismissal of service of Plaintiff. In
this regard any departmental enquiry was not held against the Plaintiff and
before passing the dismissal order, the plaintiff was not accorded opportunity
of defence and hearing which being contrary to law and Section 35 of Standing
orders is liable to be quashed."
case of the respondent as set up in the plaint, therefore, is that in the
absence of departmental enquiry as contemplated in Standing Orders, the order
of dismissal is bad in law. It is true that respondent pleaded that he has been
dismissed from service without affording any opportunity of defence and hearing
and in breach of principles of natural justice but the said plea has to be
understood in the backdrop of his pleading that the dismissal order has been
passed contrary to Standing Orders without holding any departmental enquiry.
The legal position that Standing Orders have no statutory force and are not in
the nature of delegated / subordinate legislation is clearly stated by this
Court in Krishna Kant2. In that case (Krishna Kant2), this Court while
summarizing the legal principles in paragraph 35(6) stated that 11 the
certified Standing Orders framed under and in accordance with the Industrial Employment
(Standing Orders) Act, 1946 are statutorily imposed
conditions of service and are binding both upon the employers and employees,
though they do not amount to `statutory provisions' and any violation of these
Standing Orders entitles an employee to appropriate relief either before the
forum created by the Industrial Disputes Act
or the civil court where recourse to civil court is open according to the
principles indicated therein. In Bal Mukund Bairwa (2)6, in para 37 of the
report, the position has been explained that if the infringement of the
Standing Orders is alleged, the civil court's jurisdiction may be held to be
barred but if the suit is based on the violation of principles of common law or
constitutional provisions or on other grounds, the civil court's jurisdiction
may not be held to be barred. In our opinion, nature of right sought to be
enforced is decisive in determining whether the jurisdiction of civil court is
excluded or not. In the instant case, the respondent who hardly served for
three months, has asserted his right that the departmental enquiry as
contemplated under the Standing Orders, ought to have been held before issuing
the order of dismissal and in absence 12 thereof such order was liable to be
quashed. Such right, if available, could have been enforced by the respondent
only by raising an industrial dispute and not in the civil suit. In the
circumstances, it has to be held that civil court had no jurisdiction to
entertain and try the suit filed by the respondent.
the result, appeal is allowed and impugned order of the High Court and judgments
of the courts below are set aside. No order as to costs.
.............................J (R. V. Raveendran)
.............................J (R. M. Lodha)
May 5, 2010.