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TMI Blog1975 (8) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. He was followed by Mr. Som Nath Iyer, learned counsel for the respondent Union in Civil Appeal 2317 of 1972. We shall proceed to state the facts of Civil Appeal No. 922 of 1973 first, discuss the point of jurisdiction as also the other points involved in that appeal and then briefly refer to the facts of the other case. The appellant company carries on a big industry and owns several plants. One such plant is situated at Kurla, Bombay. In this plant there is a department known as Motor Production Department. The dispute relates to the workmen of this department. There seems to be three groups of workmen in the. department aforesaid. One group was represented by Engineering Mazdoor Sabha-hereinafter called the Sabha Union which is a registered Trade Union and was once a recognized union of the workmen of the appellant company. Respondents 1 and 2 who instituted the suit in question in the City Civil Court at Bombay are members of this Union. Later on the Sabha Union was derecognized and another registered Trade Union known as Association of Engineering workershereinafter called the Association Union-was recognized by the appellant company. This Association Union, respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grieved by this, because, they thought the 27 newly added workmen were merely learners and could not be eligible for being taken in the pool of the incentive scheme. It would adversely affect the incentive payments which were to be made to the existing 425 workmen. According to the case of respondents 1 and 2 they for the first time learnt about the intention of the company to bring about a change in the service conditions when the altered scheme was put on the Notice Board on the 15th March, 71. The two workmen who were the members of the Sabha Union rushed to the court and instituted their plaint on the 8th April, 1971 in the City Civil Court at Bombay seeking the permission of the court to institute the suit in a representative capacity under order I, Rule 8 of the Code of Civil Procedure-hereinafter called the Code representing the workmen who were members of the Sabha Union as also those who were neither its members nor members of the Association Union. On an objection being raised consequently respondents 4 to 6 were added as defendants 3 to 5 to represent the 27 disputed workmen. Respondents 1 and 2 in their plaint chiefly based their claim on the Memorandum of Settlement da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requirement of the notice under section 9A of the Act for effecting any change in the agreement dated the 31st December, 1966. Treating the incentive payments made on and from the year 1966 till 1970 as implied terms of conditions of service, the Trial Judge seems to have come to the conclusion that the change effected in January, 1971 was detrimental to and against the interests of the workmen. Due to some technical reasons the first relief of declaration was not granted. But holding that the court had jurisdiction to try the suit as it was a suit of a Civil nature for enforcement of rights of common and general law and consequently there is no question of the reliefs being claimed under the Industrial Disputes Act , it granted a sort of conditional decree of injuction restraining the appellant from enforcing or implementing the terms of agreement of the 9th January, 1971 against the workmen of its Motor Production Department who are not members of the Association Union. The injunction, however, was not to operate in regard to any workmen who in writing accepted the terms of the impugned agreement or after the appellant took steps in accordance with law to make the agreement bind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to an officer authorised in this behalf by the appropriate Government and the conciliation officer; Chapter II provides for the authorities under the Act, namely for constitution of the Works Committee, Boards of Conciliation, Courts of Inquiry, Labour Courts, Tribunals and National Tribunals as also for appointment of Conciliation officers. Different kinds of authorities having very varied and extensive powers in the matter of settlement and adjudication of industrial disputes have been constituted. Since the time of the earliest decisions of the Federal Court and the Supreme Court of India it has been recognized fully well that the powers of the authorities deciding industrial disputes under the Act are very extensive much wider than the power of, a Civil Court while adjudicating a dispute which may be an industrial dispute. The labour Courts and the Tribunals to whom industrial disputes are referred by the appropriate governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o completely oust the jurisdiction of the Civil Court for trial of industrial disputes. If the dispute is not an industrial dispute within the meaning of section 2(K) or within the meaning of section 2A of the Act, it is obvious that there is no provision for adjudication of such disputes under the Act. Civil Courts will be the proper forum. But where the industrial dispute is for the purpose of enforcing any right, obligation or liability under the general law or the common law and not a right, obligation or liability created under the Act, then alternative forums are there giving an election to the suitor to choose his remedy of either moving the machinery under the Act or to approach the Civil Court. It is plain that he can t have both. He has to choose the one or the other. But we shall presently show that the Civil Court will have no jurisdiction to try and adjudicate upon an industrial dispute if it concerned enforcement of certain right or liability created only under the Act. In that event Civil Court will have no jurisdiction even to grant a decree of injunction to prevent the threatened injury on account of the alleged- breach of contract is the contract if one which is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board. Lord Esher M. R. pointed out that the liability to make sewers was imposed by the statute. There was no such liability before it. The case, therefore, comes within the canon of construction that if a new obligation is imposed by statute. and in the same statute a remedy is provided for nonfulfillment of the obligation, that is the only remedy. Lopes, L.J. further succinctly pointed out that section 15 did not create any duty towards any particular individual, and section 299 gives a specific remedy for the benefit of the locality at large. Thus, it should be noticed, that the obligation imposed by the statute did not result in creation of any right in favour of any particular individual. Earl of Halsbury, L.C. pointed out in his speech at page 394: The principle that where a specific remedy is given by a statute, it thereby deprives the person who insists upon a remedy of any other form of remedy than that given by the statute, is one which is very familiar and which runs through the law. The matter would be different if the obligation imposed under the statute brings into existence a right in favour of an individual but provides no remedy for its enforcement. Suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approved in Pasmore s case (supra) at page 743 in the case of Southwark London Borough Council v. Williams and another(2). The celebrated and learned Master of the Rolls said at page 743. Likewise here in the case of temporary accommodation for those in need. It cannot have been intended by Parliament that every person who was in need of temporary accommodation should be able to sue the local authority for it: or to take the law into his own hands for the purpose. Mr. Sorabjee endeavoured to take his case out of the well established and succinctly enunciated principles of law by the English courts on two grounds :- (1) That the remedy provided under the Act is no remedy in the eye of law. It is a misnomer. Reference to the Labour Court or an Industrial Tribunal for adjudication of the Industrial dispute was dependant upon the exercise of the power of the Government under section 10(1), it did not confer any right on the suitor. (2) Even if the Civil Court had no jurisdiction to entertain a suit for enforcement of a right created under the Act, as in England, Courts in India also could make an order or decree for injunction to prevent the threatened injury on breach of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chown in support of his submission that even if a suit could not lie in a civil court for enforcement of the right, still the remedy of injunction by a suit was not lost. The learned Judge at page 903 in the first instance pointed out that the case before him fell within the first of the three classes enumerated by Willes, J in the case of Wolverhemption (supra). On the true construction of the Act under consideration it was opined that it had simply reenacted the old common law right to the market. But then the learned Judge proceeded to say at page 904 that the remedy in chancery, as a separate remedy, was wider than the old common law remedy. Says the learned Judge further at page 904: In my opinion, there was nothing to prevent the old Court of Chancery from granting an injunction to restrain the infringement of a newly created statutory right, unless the Act of Parliament creating the right provided a remedy. which it enacted should be the only remedy-subject only to this that the right so created was such a right as the Court under its original jurisdiction would take cognizance of. On a close scrutiny, however, it would be noticed that the principle of separate reme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Procedure Act 1852. After some decisions of the English courts some additional words were introduced in order to enlarge the power of the Court to make declarations in cases where from the nature or the circumstances of the case no substantive relief could be given by the Court. When we proceed to deal with certain decisions of the Privy Council and of this Court in relation to a taxing statute it will be pointed out under what circumstances an action in a Civil Court can lie to challenge the decisions of the taxing authorities. If the proposed action of the taxing authority is of a kind which when taken would be amenable to be challenged in a Civil Court the remedy for the relief of injunction to prevent the action would also lie but not otherwise. As for example, in accordance with the majority decision of this Court in the case of K. S. Venkataraman Co. v. State of Madras if tax is imposed under a provision of the statute which is ultra vires, the imposition can only be challenged by pursuing a remedy in a Civil Court or in High Court. Suppose a case where a proceeding is initiated by issuance of a notice for imposing a tax on person under a provision of law which is ultra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question is how for it has been taken away. They do not uno flatu claim under the Act and seek a remedy elsewhere. On the contrary, they deny that they come within its purview and seek a declaration to that effect. There is, in my opinion, nothing in Barraclough v. Brown (supra) which denies them that remedy, if it is otherwise appropriate. Mr. Sorabjee cited the case of Duchess of Argyll v. Duke of Argyll and others(1) to strengthen his argument further in support of the dicta of Farwell, J in the case of Stevens v. Chown (supra). But we think the very relevant and pertinent distinction pointed out by us above has again been missed by the learned counsel. The special jurisdiction of the Court of Chancery is further emphasised in a passage quoted with approval at page 345 of the report from the judgment of North, J in the case of Pollard v. Photographic Company(2). It is worthwhile to quote a portion of that passage which reads thus : But it is quite clear that, independently of any question as to the right at law, the Court of Chancery always had an original and independent jurisdiction to prevent what that court considered and treated as a wrong, whether arising from a vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any(3) Lord Thankerton delivering the judgment of the Board alluded to the third class of cases to be found in the judgment of Willes, J in Wolverhampton s case. The order of the Collector of Customs passed on the appeal under section 188 of the Sea Customs Act, 1878 was held to be an order within his exclusive jurisdiction excluding the jurisdiction of the Court to challenge it. The other wellknown decision of the Privy Council is the case of Raleigh Investment Coy. Ltd. v. Governor General in Council. Both the decisions aforesaid were noticed by Gajendragadkar. J. as he then was, delivering the judgment on behalf of the Constitution Bench of this Court in Firm and Illuri Subbayya Chetty and Sons v. The State of Andhra Pradesh. At page 763 the circumstances under which the decision of the taxing authority under the Madras General Sales Tax Act, 1939 could be challenged in a Civil Court were pointed out in these terms : Non-compliance with the provisions of the statute to which reference is made by the Privy Council must, we think, be non-compliance with such fundamental provisions of the statute as would make the entire proceedings before the appropriate authority illegal and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... existing before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the said remedy could be had. Even in such cases, the Civil Court s jurisdiction is not completely ousted. A suit in a civil court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions. The principles aforesaid were reiterated in the decision of this Court in Bharat Kala Bhandar Ltd. v. Municipal Committee, Dhamangaon albeit the learned Judges by 3 : 2 differed in the application of the principle to the facts of the case. The unanimous decision of a Bench of 7 Judges of this Court was given by Gajendragadkar, C.J. in the case of Kamala Mills Ltd. v. State of Bombay. The decision of the House of Lords in the case of PYX Granite Co. Ltd. (supra) was referred to at page 81 after referring to the decisions of the Privy Council in the case of Mask Co. and the principles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suitor concerned to choose his remedy for the relief which is competent to be granted in 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. We may, however, in relation to principle 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 individual dispute. Civil Courts, therefore, will have hardly an occasion to deal with the type of cases falling under principle 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lie in that court even though a special remedy is provided in the Act in respect of that matter. This would be so on the footing that the dismissal was in violation of the contract of service recognized under the general law. More or less to the same effect is the view taken by a learned single Judge of the Mysore High Court in the case of Syndicate Bank v. Vincent Robert Lobo. It is not necessary to refer to some unreported decisions of the Bombay High Court taking one view or the other. Applying the principles aforementioned to the facts of the instant case, it is clear that what the plaintiffrespondents wanted to prevent was, by and large, threatened breach of their right which flowed from the agreement dated the 31st December, 1966 entered into between the Sabha Union and the Company. Such a collective agreement is recognized and creates a right in favour of the members of the Union only under section 18(1) of the Act and not under the general law of contract. Withdrawal of the claim based upon the said agreement by their learned counsel in the Trial Court had no effect on the question of its jurisdiction to try the suit. In so far as the suit was filed in a representative c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition to the strength of the workmen of the Motor Production Department in the shape of the 27 persons. On the other hand the members of the Association Union who had entered into the second agreement dated the 9th January, 1971 were to get their incentive payments in accordance with that agreement taking into account the contribution made in the matter of production by the newly added 27 persons. On the face of it, it was an attempt to put two swords in one sheath. That it was not only difficult but almost impossible to do so was conceded on all hands, including Mr. Sorabjee, learned counsel for the plaintiff-respondents. Apart from the question of jurisdiction the decree for injunction was not sustainable on this account too. The dispute could well be decided from all aspects in a reference under the Act. One more difficulty in the way of the sustainability of the order of injunction may also be indicated. Temporary injunction can be granted under sub-section (1) of section 37 of the Specific Relief Act, 1963 but a decree for perpetual injunction is made under sub-section (2). Grant of perpetual injunction is subject to the provision contained in Chapter 8. Under section 38(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom committing a breach of the agreement dated the 14th March, 1968 including the breach as regards the payment of 50% wages to the 46 workmen. It may be stated that the company s nominee on the Board of Arbitrators had withdrawn. A prayer, therefore, was made in the plaint to direct the company to appoint its nominee in place of Mr. Karnik who had withdrawn. The company asked the City Civil Court of Bombay, where the suit was instituted, to decide the question of jurisdiction of the court to entertain the suit as a preliminary issue. The court held against the company. It went up in revision before the Bombay High Court. The same learned Judge sitting singly who later on decided the other case upheld the jurisdiction of the civil court to try the suit. The company filed this appeal by special leave. On the facts of this case it is all the more clear that the civil court has no jurisdiction to try it. The manner of voluntary reference of industrial disputes to arbitration is provided in section 10A of the Act. The reference to arbitration has to be on the basis of a written agreement between the employer and the workman. As provided in sub- section (5) nothing in the Arbitration ..... X X X X Extracts X X X X X X X X Extracts X X X X
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