Chief
Engineer, Hydel Project & Ors Vs. Ravinder Nath & Ors [2008] Insc 85 (24 January 2008)
S.B.
Sinha & V.S. Sirpurkar
(Arising
out of SLP (C) No.18774 of 2005)V.S. SIRPURKAR, J 1. Leave granted.
2.
Chief Engineer, Superintending Engineer (Construction Circle) and Personnel
Officer, Anandpur Sahib Hydel Project have filed this appeal to question the
correctness of the judgment of the Punjab and Haryana High Court in Regular
Second Appeal confirming the judgment passed by the Additional District Judge, Ropar
and Senior Sub Judge, Ropar, basically on the ground that there was a complete
lack of jurisdiction in the above three Civil Courts since the issues squarely
fall within the ambit of the Industrial Disputes Act, 1947 and as such the
remedy for the 9 respondents-workmen, who are workmen under the Industrial
Disputes Act, lies with the authorities thereunder and not with the Civil
Court.
BASIC
FACTS
3.
Nine respondents herein filed a Civil Suit before the Senior Sub Judge, Ropar
for the relief of (i) declaration to the effect that the orders of their
termination/retrenchment from service were illegal and
(ii) that
they were entitled to reinstatement in service with back-wages.
It was
pleaded that the plaintiffs-respondents were skilled workers and were working
on the Anandpur Sahib Hydel Project (hereinafter called the Project)
in various capacities such as T. Mate, Mixer Operator, Beldar, etc. for more
than 5 years and, therefore, as per the Standing Orders and Rules they were
regular employees of the defendants. It was alleged that the defendants did not
maintain any seniority-list of the workers and various categories of services
on the said Project and they arbitrarily removed the plaintiffs-respondents
from service on the dates mentioned in Annexure A to the plaint by obtaining
their signatures on papers under coercion and force and also forced them to
accept payments. It was further alleged that while removing the
plaintiffs-respondent, the defendants-appellants did not observe the seniority,
meaning thereby while the juniors were retained in service, the seniors were
retrenched. It was alleged that action was based on pick and choose policy and
was discriminatory and amounted to victimization. It was also alleged that
those workers who had completed service for 1000 days, could not have been
retrenched (as was held by the Punjab & Haryana High Court in Mehanga Ram
v. Punjab State Civil Writ No.718 of 1986).
4.
This claim was contested by the State of Punjab. It was firstly urged that the suit was bad as common suit could not
have been filed since the cause of action of each defendant was distinct and
separate. It was urged that the plaintiffs-respondents were appointed on purely
temporary basis as work-charged employees and after the completion of the
project, their services were validly terminated as per Rule 20(1) read with
Rule 3(a) of the Certified Standing Orders for the work-charged staff on the
said Project. Since the termination was complete on payment of necessary
gratuity etc., there can be no cause of action and as such the present suit was
not maintainable in the present form. It was also urged that notice under
Section 80 CPC was not given and the suit was also barred by limitation. It was
reiterated that the principle of first come last go was strictly observed since
there was a regular seniority-list maintained for the Project as a whole and
that there was no discrimination or victimization.
On
merits also the suit was opposed on the ground that since the plaintiffs-
respondent were work-charged employees for a work of temporary nature, on
completion of the project their services were terminated as per the Rules which
governed their service conditions (the Certified Standing Orders). The
following issues were framed in between the parties by the Court:
1.
Whether the impugned orders of termination retrenchment of the plaintiffs are
illegal, unauthorized, ultravires and ineffective as alleged? OPP
2.
Whether the suit is bad for misjoinder of parties? OPP
3.
Whether the suit is maintainable in the present form? Opp
4.
Whether no valid notice u/s 80 CPC has been served by the plaintiff on the
defendants? OPP
5.
Whether the suit is within limitation?
6.
Whether the plaintiffs are entitled to the declaration and injunction prayed for?
OPP
7.
Relief.
5. The
Trial Court, on the basis of the evidence, came to the conclusion that the
defendants-appellants had not observed the principle of last come first go in
making the retrenchments. The Trial Court also relied on the judgment of the Punjab and Haryana High Court in Piara
Singh & Ors. V. State of Haryana[1989 PLR 396] and one another judgment,
the copy of which was filed Vide Exhibit D-13 wherein the High Court had given
directions that the workers so retrenched should be accommodated somewhere-else
in some other projects and such appointments in the new projects would be
treated as new appointments for the purpose of seniority and that the relief
given to such workers would be without prejudice to the retrenchment and any
other compensation that such workers would be entitled to under the provisions
of the Industrial Disputes Act, 1947.
Relying
on these observations, the impugned orders of termination were held illegal. As
regards issue regarding tenability of the suit, all that was said by the Trial
Court was that the Government Pleader could not point out any defect in the
form of the suit except that the plaintiffs had not challenged any specified
orders regarding the termination of their services.
(That
is the only discussion in respect of the tenability). Though it was held that
there was no evidence to hold that the persons junior to the plaintiffs-
respondents were retained in service, there was no evidence on record to show
that as to what would be the position of the plaintiffs in overall
seniority-list when finalized vis-`-vis the other employees who have been
retained or retrenched and, therefore, it was held that the plaintiffs were
entitled to declaration and mandatory injunction only to the extent that they
had right to be taken back in service and in case it was found that they were
entitled to be retained on the project on the basis of the seniority, they
would be entitled to be absorbed on other projects of the defendants according
to their qualifications and fitness within a period of six months from the date
of the judgment. A curious relief was granted in the following terms:
17.
In view of my foregoing findings, the suit of the plaintiffs partly succeeds.
Accordingly, I pass a decree in favour of the plaintiffs and against defendants
no.1, 3 to 5 for declarations to the effect that the plaintiffs are entitled to
be taken back in service. However, in case it is found that by virtue of their
overall seniority in their respective categories of workers at the time of their
retrenchment, they were not entitled to be retained on the APS Project, then
they shall be absorbed in other projects under the defendants within a period
of six months from the date of this judgment..
6.
This order of the Trial Court was appealed against by the defendants-appellants
before the Additional District Judge, Ropar which appeal was dismissed. In its
judgment the Appellate Court has referred to the arguments advanced by the
appellants relying on Rule 20(1) of the Standing Orders governing the
work-charged staff of the Project as also to the contention raised on behalf of
the plaintiffs-respondent that the defendants-appellants had not violated
principle of last come first go. The Appellate Court accepted that such
principle was not strictly adhered to and further held that the Anandpur Hydel
Project was a State and the plaintiffs-respondents were entitled to
the protection contained under the Constitution of India and CSR which provided
that the work-charged employees could not be allowed to remain as such for more
than six months. Relying on the decision of this Court reported in Supreme
Court of India v. Cynamide India Ltd. (AIR 1987 SC 1801) and Piara Singh v.
State of Haryana (1989 PLR (1) 396), the Appellate Court confirmed the findings
of the Trial Court and dismissed the appeal.
7. The
matter was taken before the High Court by way of a Second Appeal on various
grounds. To begin with the High Court granted stay of the operation of the
orders passed by the courts below. However, by the subsequent order, the stay
application was dismissed and the said order granted on 20.12.1991 was vacated.
This came to be challenged by way of a Special Leave Petition before this
Court. In the Special Leave Petition a contention was raised by way of Ground
(8) that the Civil
Court had no
jurisdiction to entertain the suit since the relief of reinstatement in the
present case was available only under the Industrial Disputes Act. This Court,
however, did not interfere at that stage and directed the High Court to dispose
of the Second Appeal as expeditiously as possible. The High Court dismissed the
Second Appeal necessitating the present appeal before us.
CONTENTIONS
8.
Learned counsel appearing on behalf of the appellants urged that since the
issues squarely fell within the ambit of the Industrial Disputes Act, 1947 and
since there is a specific remedy available to the plaintiffs- respondents under
that Act, the jurisdiction of the Civil Court was impliedly excluded and all
the courts below erred in entertaining and deciding upon the issues much less
adverse to the appellants. Learned counsel, relying on this Courts
judgments in The Premier Automobiles Ltd. & Ors. v. Kamlekar Shantaram Wadke
of Bombay & Ors. [(1976) 1 SCC 496], Jitendra Nath Biswas v. M/s.Empire of
India & Ceylone Tea Co. & Anr. [(1989) 3 SCC 582]; Rajasthan State Road
Transport Corporation & Anr. v. Krishna Kant & Ors. [(1995) 5 SCC 74]; and Rajasthan State Road Transport
Corporation & Ors. v. Zakir Hussain [(2005) 7 SCC 447] urged that the legal
position in this behalf was settled. On the other hand the learned counsel on
behalf of the respondents urged that firstly this issue relating to
jurisdiction was not raised by the respondents before any courts below and it
is only for the first time that the objection to the jurisdiction has been
raised before this Court. Learned counsel for the respondents also urged that
the issue was not covered under the labour jurisprudence and under the
provisions of the Industrial Disputes Act, 1947 and the jurisdiction of the Civil Court could not be said to be barred.
DISCUSSIONS
9. We
would take into account the objection to the effect that the contention
regarding the jurisdiction was not raised and, therefore, it could not be
allowed to be raised at this late stage, for that it will have to be found as
to whether the issue regarding the reinstatement and the payment of back-wages
could be said to be covered under the provisions of Industrial Disputes Act.
The question of the Civil
Courts
jurisdiction being excluded came, for the first time, before this Court in The
Premier Automobiless case (supra). In that case the court culled out
following four principles:
(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 senior 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 VA then the remedy for its enforcement is either Section 33C or the
raising of an industrial dispute, as the case may be.
10.
The second decision came in Jitendra Nath Biswass case (supra), wherein
this Court specifically held, interpreting Section 9 of the CPC that the Civil
Court shall have no jurisdiction where its jurisdiction is expressly or
impliedly barred. The Court held:
It
could not be disputed that a contract of employment for personal service could
not be specifically enforced and it is also clear that except the industrial
law, under the law of contract and the civil law, an employee whose services
are terminated could not seek the relief of reinstatement with back wages. At
best he could seek the relief of damages for breach of contract. The manner in
which the relief has been framed by the appellant plaintiff in this case,
although he seeks a declaration and injunction but in substance it is nothing
but the relief of reinstatement and back wages. The relief could only be
available to a workman under the Industrial Disputes Act. The Court,
therefore, proceeded to hold that the civil courts jurisdiction was
barred. In this case very peculiarly it was not disputed that the Industrial
Employment (Standing Orders) Act was also applicable to the workman and an
inquiry for misconduct was conducted against the appellant in accordance with
the standing orders. It was argued before the court, however, that since it was
solely the discretion of the Conciliation Officer to proceed with the
conciliation proceedings and since even after the report given by the
Conciliation Officer it was the discretion of the State Government to make a
Reference or not, the civil courts jurisdiction was not barred. This Court
repelled that contention after discussing the duties of the Conciliation
Officer and held that the civil courts jurisdiction was barred.
11. On
its heels came the case of Krishana Kant (supra). This was a case where,
pursuant to the disciplinary inquiry held against some of the workers on
charges of misconduct, their services were terminated. The suits were filed for
a declaration that the orders terminating their services were illegal and
invalid and for further declaration that they must be deemed to have continued
and still continuing in the service of the Corporation with all consequential
benefits. This Court elaborately considered the law laid down earlier in the
cases of Premier Automobiless case and Jitendra Nath Biswass (supra)
and after considering the concept of industrial dispute as covered
under Sections 2(k) and 2-A of Industrial Disputes Act, 1947 came to the
conclusion that the disputes not covered under Section 2(k) or 2-A could be
determined by Civil Court or by arbitration but disputes relating to right or
obligation created by the Industrial Disputes Act can be adjudicated only by
the forum created by the Industrial Disputes Act. This was a case where the
Corporation was armed with the Certified Standing Orders. The Court held that
the Certified Standing Orders are not in the nature of delegated or subordinate
legislation. It was held that the Certified Standing Orders were statutorily
imposed conditions of service and the complaint made by the workman relating to
breach thereof could only be tried under the machinery and the procedure
provided by the Industrial Disputes Act and the civil courts jurisdiction
was impliedly barred to that extent. The Court while referring to the seven
principles culled out by this Court in Dhulabhai v. State of M.P. [(1968) 3 SCR
662: AIR 1969 SC 78] further explained the decision in Premier Automobile
(supra) to hold that not only the disputes under the Industrial Disputes Act
were barred but the disputes arising out of the sister enactments like
Industrial Employment (Standing Orders) Act also stood outside the jurisdiction
of the civil court since they did not provide a special forum of their own for
enforcement of the rights and liabilities created by them. The Court,
therefore, held:
Thus
a dispute involving the enforcement of the rights and liabilities created by
the certified standing orders has necessarily got to be adjudicated only in the
forums created by the Industrial Disputes Act within the meaning of Sections
2(k) and 2-A of Industrial Disputes Act or such enactment says that such
dispute shall be either treated as an industrial dispute or shall be adjudicated
by any of the forums created by the Industrial Disputes Act. The civil court
have no jurisdiction to entertain such suits. The Court further went on to
say that the enforcement of the Industrial Employment Standing Orders is an
industrial dispute and if it satisfies the requirement of Section 2(k) and/or
Section 2-A of the Industries Disputes Act, it must be adjudicated in the
forums created by the Industrial Disputes Act alone.
12.
Though there are number of other cases followed, we would choose to consider
the decision in Zakir Hussains case (supra). This case also arose out of
the termination simpliciter effected by the Corporation of the conductor who
was appointed on probation basis for a period of two years and since his
services were not found satisfactory, the same were terminated, ofcourse with
necessary compensation prescribed as per the Rules of the Corporation. The
court after considering all the earlier cases cited above and referring to the
seven principles culled out in the case of Krishan Kant, came to the conclusion
as arrived at in Krishan Kants case. Two other cases were referred to,
they being B.S. Bharti v. IBP Co. Ltd. [(2004) & SCC 550] and Chandrakant Tukaram
Nikam v. Municipal Corporation of Ahmedabad [(2002) 2 SCC 542]. It was held by
the court that the reliefs craved in the said cases squarely fell within the
arena of Industrial Disputes Act and, therefore, civil courts jurisdiction
was clearly barred. On the question of the adhoc appointment of the employee,
the court came to the conclusion that the respondent was a probationer and did
not have any substantive right to hold the post and was not entitled to a
decree of declaration which was erroneously granted by the lower courts.
13.
Now coming to the facts of the present case, there is no dispute that there are
Certified Standing Orders in vogue. The nine plaintiffs- respondents were
engaged on work-charged basis till the completion of the Project. Their
services came to be terminated after the completion of the Project in January,
1985 as they were not required due to the completion of the Project and since
they were engaged temporarily. It was pointed out before us and not disputed
that the services were terminated vide order dated 6.7.1985 under Rule 20(1)
read with Rule 3-A of the Certified Standing Orders for work-charged staff. It
is also not disputed that they were paid gratuity, retrenchment compensation as
also the compensation for notice and that they had duly accepted the order. In
the civil suit it was prayed that a decree be passed for declaration to the
effect that the orders of termination/retrenchment of their service were null
and void and that they should be reinstated with back-wages. A mandatory
injunction to that effect was sought for. It was urged before the trial court
that the defendants-appellants have not maintained a proper seniority list and
that had resulted in the breach of the principle of last come first go and,
therefore, their termination was bad in law. In short, the original plaintiffs-
respondents had averred the breach of Section 25-G of the Industrial Dispute
Act, in that, they had alleged that the employer had shown discriminatory
attitude and the plaintiffs-respondents were picked and chosen for being
terminated and thus were victimized. On the other hand defence raised was that
there were certain cut-off dates fixed for the retention of the employees and
all the plaintiffs-respondent had actually joined the service after that
cut-off date and, therefore, they were terminated in terms of Rule 20(1) read
with Rule 3-A of the Certified Standing Orders relating to work-charged staff.
14.
From the above discussion there is no doubt that the dispute and the main issue
fell squarely under the premise of Industrial Disputes Act.
Further
as specifically held in Krishna Kants case that where the
Certified Standing Orders were applicable and where the breach thereof was
complained of, such issues fell in the exclusive area of the machinery provided
by the Industrial Disputes Act and as such the civil courts jurisdiction
was specifically barred. We are left with no doubt that the situation is
identical in the present case.
15. In
the present case while the employers-appellants claimed that the termination simpliciter
was effected in the light of the Rules under the Certified Standing Orders, the
plaintiffs-respondents alleged that the principles under the provisions of the
Certified Standing Orders were completely ignored and a highly arbitrary,
discriminatory approach was adopted by the employer by picking and choosing the
plaintiffs for the purposes of termination. The dispute, therefore, clearly
fell outside the civil courts jurisdiction as per the decisions of this
Court relied upon earlier.
16.
However, the question is that this issue of jurisdiction was not raised either
before the before the First Appellate Court or the Second Appellate Court.
Learned counsel for the respondents very vociferously argued before us that for
the reasons best known to the appellants, this objection regarding the jurisdiction
was never raised specifically. We have seen the written statement. In the
written statement the defendants-appellants have raised a plea though not
specifically but there is a clear reference to Rule 20(1) read with Rule 3-A of
the Certified Standing Orders for the work- charged staff on the Project. It is
stated, which is apparent from the judgment of the trial court that since
the services of plaintiffs have already been terminated on payment of necessary
gratuity etc., they have no cause of action and that the present suit is not
maintainable in the present form and is also not competent without notice under
Section 80 CPC besides being barred by limitation. The tenability of the
suit was, therefore, raised and vide Issue No.3, the trial court also
considered the tenability of the suit in the present form. The trial court has
not, however, adverted to the jurisdiction aspect as is being presently
highlighted before us. Same is the story about the First Appellate Court and
the Second Appellate Court.
However,
it is not as if this issue was not raised altogether. Atleast a notice of this
issue was given to the respondents in SLP (C) 11086 of 1992 which was filed on
behalf of the appellants to challenge the dismissal of the said application by
the High Court. It is very specifically raised therein in Ground No.8, which is
reproduced as under:
Because
the civil court had no jurisdiction to entertain the suit.
The
relief of reinstatement in the present case was available only under the
Industrial Disputes Act and therefore the jurisdiction of the Civil Court was expressly barred. [(1991) 1 RSJ
770]. The declaration claimed by the plaintiffs in his suit could be granted by
the Labour Court under the Industrial Disputes Act
and consequential relief was also exclusively outside the jurisdiction of the
civil court. The plaintiff respondents are basing their case mainly on the
provision of Industrial Disputes Act, 1947 and thus the claim of the
plaintiffs/respondents could only be adjudicated by the Labour Court. The proposition of law is now well
settled by repeated pronouncement made by the Apex Court. Therefore, it is
not that the respondents herein had no notice of such an objection. This Court
only directed the High Court to dispose of the appeal before it expeditiously.
However, it does not seem that the question was raised by the counsel of the
appellants before the High Court in the present form. On the other hand the
High Court has very specifically held that there was no substantial question of
law involved in the matter.
17. In
our considered opinion, it cannot be said that there was no question of law
involved as we have pointed out that the issues squarely fell in the area
covered by the Industrial Disputes Act and was, therefore, specifically barred.
The question is whether this issue regarding the jurisdiction could be allowed
to be raised before us. The question of jurisdiction came up before this Court
in Harshad Chiman Lal Modi v. DLF Universal Ltd. & Anr. [(2005) 7 SCC 791].
The Court therein was considering the question raised whether the court had
jurisdiction under Section 16(d) CPC to deal with the matter in question. In
short the court was considering whether the amendment could have been allowed
raising objection to the territorial jurisdiction. This Court in para 30
observed as under:
We
are unable to uphold the contention. The jurisdiction of a court may be
classified into several categories. The important categories are
(i) territorial
or local jurisdiction;
(ii) pecuniary
jurisdiction; and
(iii) jurisdiction
over the subject-matter.
So far
as territorial and pecuniary jurisdiction are concerned, objection to such
jurisdiction has to be taken at the earliest possible opportunity and in any
case at or before settlement of issues. The law is well settled on the point
that if such objection is not taken at the earliest, it cannot be allowed to be
taken at a subsequent stage. Jurisdiction as to subject-matter, however, is
totally distinct and stands on a different footing.
Where
a court has no jurisdiction over the subject-matter of the suit by reason of
any limitation imposed by statute, charter or commission, it cannot take up the
cause or matter. An order passed by a court having no jurisdiction is a
nullity. The Court then proceeded to rely on the case in Bahrein Petroleum
Co. Ltd. v. P.J. Pappu [(1966) 1 SCR 461:AIR1966 SC 634] and observed in para
32 that neither consent nor waiver nor acquiescence can confer jurisdiction
upon a court, otherwise incompetent to try the suit. The Court further observed
that It is well settled and needs no authority that where a
court takes upon itself to exercise a jurisdiction it does not possess, its
decision amounts to nothing. A decree passed by a court having no
jurisdiction is non est and its invalidity can be set up whenever it is sought
to be enforced as a foundation for a right, even at the stage execution or in
collateral proceedings.
A
decree passed by a court without jurisdiction is a coram non judice. The
Court also relied upon the decision in Kiran Singh v. Chaman Pawan [(1955) 1
SCR 117: AIR 1954 SC 340] and quoted therefrom:
It
is a fundamental principle well established that a decree passed by a court
without jurisdiction is a nullity, and that its invalidity could be set up
whenever and wherever it is sought to be enforced or relied upon, even at the
stage of execution and even in collateral proceedings. A defect of jurisdictionstrikes
at the very authority of the court to pass any decree, and such a defect cannot
be cured even by consent of parties. Though in the aforementioned decision
these observations were made since the defendants before raising the objection
to the territorial jurisdiction had admitted that the court had the
jurisdiction, the force of this decision cannot be ignored and it has to be
held that such a decree would continue to be a nullity.
18.
The aforementioned decision was followed again in Hasham Abbas Sayyad v. Usman Abbas
Sayyad & Ors. [(2007) 2 SCC 355] where one of us, Sinha, J. was a party. Ofcourse
while following this decision the Court referred to the decisions in Chief
Justice of A.P. v. L.V.A. Dixitulu [(1979 2 SCC 34]; Zila Sahakari Kendrya Bank
Maryadit v. Shahjadi Begum [(2006) 11 SCC 692] as also Shahabad Cooperative
Sugar Mills Ltd. v. Special Secretary to Govt. of Haryana [(2006) 12 SCC 404].
CONCLUSION
19.
Once the original decree itself has been held to be without jurisdiction and
hit by the doctrine of coram non judice, there would be no question of
upholding the same merely on the ground that the objection to the jurisdiction
was not taken at the initial, First Appellate or the Second Appellate stage. It
must, therefore, be held that the civil court in this case had no jurisdiction
to deal with the suit and resultantly the judgments of the Trial Court, First
Appellate Court and the Second Appellate Court are liable to be set aside for
that reason alone and the appeal is liable to be allowed.
In
view of this verdict of ours, we have deliberately not chosen to go into the
other contentions raised on merits. We, however, make it clear that we have
not, in any manner, commented upon the rights of the plaintiffs- respondents,
if any, arising out of the Labour Jurisprudence.
20. In
the result the appeal is allowed but without any order as to costs.
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