Bharti Vs. I.B.P. Company Limited  INSC 483 (25 August 2004)
N. Santosh Hegde, S.B. Sinha & A.K. Mathur SANTOSH HEGDE, J.
This appeal arises out of the judgment of High Court of Delhi made in RFA
No. 23 of 1989 whereby the High Court allowed the appeal filed by the
respondent herein and set aside the judgment and decree of the Trial Court
consequently dismissing the suit filed by the respondent herein. Brief facts
necessary for the disposal of this appeal are as follows :- Appellant herein
was employed by the respondent company in the year 1971 in its I.B.P. Depot,
Shakur Basti, Delhi as a Fitter on daily basis. He continued to work in that
capacity till 23rd of October, 1973 when the respondent treated his appointment
as on probation for a period of six months from 23rd of April, 1973. At the end
of that period the respondent extended the period of probation for a further
period of 3 months without confirming his appointment. Being not satisfied with
the performance of the appellant, on 24th of January, 1974 it terminated the
service of the appellant. The appellant tried to raise an industrial dispute
questioning his termination which was rejected by the Government concerned.
Hence, he filed a suit in the Court of Sub Judge, Ist Class, Delhi praying for
a decree of Rs. 10,993.53/- towards arrears of salaries on the ground that his
termination was illegal, malafide, wrongful, without authority of law, without
jurisdiction and being against principles of natural justice and for a
declaration that he ought to be continued in employment with full salary and
allowances and bonus etc. The Trial Court framed the following issues :- (1)
Whether the plaintiff has no civil rights enforceable by a civil court as
alleged in preliminary objections of the written statement ? O.P.D.
(2) Whether the order of termination dated 24-1-1974 is illegal, malafide, wrongful and against the principal of natural justice, if so, its effect ? O.P.P.
(3) Whether the plaintiff is entitled to the amounts claimed in the suit ? O.P.P.
After trial, the Trial Court decreed the suit of the appellant.
Being aggrieved by the judgment and decree of the Trial Court the respondent
herein preferred a Regular First Appeal before the High Court of Delhi and by
the impugned judgment the High Court following a judgment of this Court in the
case of Krishna Kant & Others. (1995) 5 SCC 75 allowed the appeal, set
aside the judgment and decree of the Trial Court. While doing so, it held that
an amount of Rs. 10,993.53/- which was paid to the plaintiff-appellant at the
time of admission of the appeal need not be refunded to the respondent therein,
i.e. the appellant herein. As stated above, it is against the said judgment of
the Appellate Court plaintiff-appellant is before us.
As noted by us hereinabove the prayer of the appellant to refer the dispute
to Industrial Tribunal/ Labour Court was refused by the appropriate Government
on 1-1-1975. The appellant has not challenged that order till date. He filed a
suit in the year 1975 without making an effort to get his dispute settled
through the provisions of the Industrial Employment in (Standing orders) Act,
1946 which even according to him was applicable to him, and the remedy for
which was under the provisions of the Industrial Disputes Act which in term
clearly prohibits maintainability of a civil suit.
This Court in the case of Rajasthan State Road Transport Corporation &
Another (supra) after considering various judgments rendered earlier in these
questions laid down the principles applicable in regard to seeking relief in
labour disputes which are as follows :- "We may now summarise the
principles flowing from the above discussion :- (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
2-A of the Industrial
Disputes Act, 1947.
(2) 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 said
(3) 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 they constitute industrial disputes within the meaing
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 Government. The
power 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.
(5) Consistent with the policy of law aforesaid, we commend to Parliament
and the State Legislature 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 Governmentin case of industrial disputes covered by
Section 2-A of the Industrial
This would go a long way in removing the misgivings with respect to the
effectiveness of the remedies provided by the Industrial
(6) 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". Any violation of these Standing Orders
entitles an employee to appropriate relief either before the forums created by
Disputes Act or the civil court where recourse to civil court is open
according to the principle indicated herein.
(7) The 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 under the Industrial Disputes act are far more extensive in the sense
that they can grant such reliefs as they think appropriate in the circumstances
for putting an end to an industrial dispute".
The High Court considered these principles laid down by this Court in
Rajasthan State Road Transport Corporation & Another case (supra) and
rightly came to the conclusion, the principles as laid down by this Court in
paragraphs 2 and 3 clearly apply to the facts of the appellant's case. Hence, a
civil suit questioning the termination of service and ancillary relief as
sought for in the suit filed by the appellant herein was not maintainable and
the only remedy was to approach the forum created under the Industrial
Disputes Act. It is to be noticed that the appellant did invoke the
provisions of the Industrial
for getting the dispute referred to an appropriate forum under the said act for
an adjudication but he failed and he did not pursue the remedy any further
though such refusal could have been challenged by way of a writ petition. He
having failed to do so he cannot then resort to a remedy by way of a civil suit
which is otherwise not maintainable in law.
We think the High Court was justified in coming to this conclusion.
However, the learned counsel for the appellant relied on para 37 of the
Rajasthan State Road Transport Corporation & Another, wherein this Court
having held that the civil court had no jurisdiction in regard to a dispute
pertaining to the workman and management which is otherwise covered by the Industrial Disputes Act
held thus :- "It is directed that the principles enunciated in this
judgment shall apply to all pending matters except where decree have been
passed by the trial court and the matters are pending in appeal or second
appeal, as the case may be. All suits pending in the trial court shall be
governed by the principles enunciated herein as also the suits and proceedings
to be instituted hereinafter".
Based on the above observations of the Court, the learned counsel submitted
that the principle of relief enunciated in the said paragraph of the judgment
of this Court ought to have been extended to him and the relief granted by the
Trial Court ought to have been affirmed. It is to be noted in this context this
principle does not apply to cases wherein the efforts of the workman to get the
dispute referred to adjudication to an appropriate forum under the Industrial
Disputes Act has been rejected. As stated above, in cases where the
application for reference under the provisions of the Industrial
Disputes Act has been rejected by the appropriate authority, the aggrieved
party should pursue the same by way of a writ petition and if possible get the
dispute referred under the Industrial Disputes
Act. If he fails to do so even after such attempt or fails to make such an
attempt, the directions issued in para 37 of the above judgment in the case of
Rajasthan State Road Transport Corporation (supra) does not apply.
In the said view of the matter, we find no reason to interfere with the
judgment of the High Court. This appeal fails and the same is dismissed.