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TMI Blog2009 (2) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... a purported conflict in two three-Judge' Bench judgments of this Court in the cases of Rajasthan State Road Transport corporation Anr. vs. Krishna Kant Ors. [ 1995 (5) SCC 75] and Rajasthan SRTC Ors. vs. Khadarmal [2006 (1) SCC 59]. 3. The purported conflict in the aforementioned two decisions centres round the jurisdiction of the civil court to entertain suits questioning orders of termination passed by the appellant - Corporation against the respondents herein. The suits were filed by the respondents, inter alia, on the premise that termination of their services was in violation of the principles of natural justice. 4. As this Court in this case at this juncture is only required to lay down a principle of law, it is not necessary to state the facts of the matter in detail. 5. Appellant - Corporation, indisputably, was constituted in terms of the provisions of Road Transport Corporations Act, 1950 (for short, the 1950 Act ). By reason of the provision of Section 4 thereof, each Corporation is a body corporate having perpetual succession and a common seal and can in its own name sue and be sued. Section 45 of the 1950 Act provides for the Regulation makin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The jurisdiction of the Civil Court in terms of the aforementioned provision is a plenary one. The provision relating to bar to entertain a suit must therefore be laid down by a statute either expressly or by necessary implication. An employee charged with grave acts of misconduct must be held to be entitled to a fair hearing in the departmental proceeding. The common law principles of natural justice must also be complied with. Rules laid down in the statutory rules indisputably should be followed. In Narinder Mohan Arya vs. United India Insurance Co. Ltd. ors. [(2006) 4 SCC 713], , this Court held: 26. In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angles. Despite limited jurisdiction a civil court, it was entitled to interfere in a case where the report of the Enquiry Officer is based on no evidence. In a suit filed by a delinquent employee in a civil court as also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction has the jurisdiction to determine its jurisdiction upon considering the averments made in the plaint but that would not mean that the plaintiff can circumvent the provisions of law in order to invest jurisdiction on the civil court although it otherwise may not possess. For the said purpose, the court in given cases would be entitled to decide the question of its own jurisdiction upon arriving at a finding in regard to the existence of the jurisdictional fact. It is also well settled that there is a presumption that a civil court will have jurisdiction and the ouster of civil court's jurisdiction is not to be readily inferred. A person taking a plea contra must establish the same. Even in a case where jurisdiction of a civil court is sought to be barred under a statute, the civil court can exercise its jurisdiction in respect of some matters particularly when the statutory authority or Tribunal acts without jurisdiction. 11. In Dhulabai vs. State of M. P. [(1968) 3 S.C.R. 662], this Court held as under: (1) Where the statute gives a finality to the orders of the special tribunals the civil court's jurisdiction must be held to be excluded if there is ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee also Church of North India vs. Lavajibhai Ratanjibhai ors. [(2005) 10 SCC 760], United India Insurance Co.Ltd. vs. Ajay Sinha Anr. [2008 (8) SCALE 509]} 12. The word industrial dispute is defined in Section 2(k) of the 1947 Act to mean: (k) industrial dispute means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any persons; The expression `workman' has been defined in clause (s) of Section 2 to mean any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person- (i) who in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 496], wherein following the dicta laid down in Wolverhampton New Waterworks Co. vs. Hawkesford [(1859) 6 CB (NS) 336: 28 LJ CP 242: 141 ER 486], law was laid down in the following terms: 23. To sum up, the principles applicable to the jurisdiction of the civil court in relation to an industrial dispute may be stated thus: (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 suitor 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 V-A then the remedy for its enforcement is either Section 33-C or the raising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicated in the forums created by the Industrial Disputes Act alone. This would be so, even if the dispute raised or relief claimed is based partly upon certified Standing Orders and partly on general law of contract. [emphasis supplied] It was, however, noticed: 33. Coming to the order dated 18-10-1989 in SLP (C) No. 9386 of 1988 made by a Bench of two learned Judges, the important fact to be noticed is that in that suit, no allegation of violation of the certified Standing Orders was made. The only basis of the suit was violation of principles of natural justice. It was, therefore, held that it was governed by Principle No. 2 in Premier Automobiles. In this sense, this order cannot be said to lay down a proposition contrary to the one in Jitendra Nath Biswas. We may also refer to a decision of this Court rendered by Untwalia, J., on behalf of a Bench comprising himself and A.P. Sen, J., in Sitaram Kashiram Konda v. Pigment Cakes and Chemicals Mfg. Co. That was a case arising from a suit instituted by the workman for a declaration that termination of his service is illegal and for reinstatement. In the alternative, he claimed compensation for wrongful termination. The juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 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. (6) The certified Standing Orders framed under and in accordance with the Industrial Employment (Standing Orders) Act, 1946 are statutorily imposed con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um for enforcing the same, plenary jurisdiction of the civil court in view of Premier Automobiles Ltd.(supra) could not be held to have been taken away. There was also no occasion to extend the scope of the dicta laid down therein. Certified Standing Orders lay down the terms and conditions of service. It did not create any new right such as Section 25F, 25G or 25H of the Industrial Disputes Act, 1947. Any new right created under a statute would ordinarily be a right in favour of an employee over and above the general law. Let us, however, proceed on the basis that the dicta laid down therein is correct. 17. A similar question, however, came up for consideration before a two-Judge Bench of this Court in Rajasthan State Road Transport Corporation Ors. vs. Zakir Hussain [(2005) 7 SCC 447], wherein this Court following the seven-Judges Bench decision of this Court in A.R. Antulay vs. R.S. Nayak [(1988) 2 SCC 602] opined that if the court has no jurisdiction, it cannot be conferred by an order of the court. Therein the order of termination was a simpliciter one which was passed during the period of probation and, thus, did not entail any stigma or civil consequences visiting hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement. However, on the facts of these cases we also direct that if any back wages have been paid, they shall not be recovered but clarify that the respondents will not be entitled to any further emoluments or service benefits. Para 37 of Krishna Kant (supra), however, was noticed in Rajasthan SRTC Anr. vs. Ugma Ram Choudhary [(2006) 1 SCC 61] to hold: 4. Paragraph 37 of Krishna Kant case has been considered by this Court in para 35 of Zakir Hussain case. It has been held that once it is held that the civil court has no jurisdiction, the consequences must follow. This view has been reiterated by this Court in the unreported [now reported in (2006) 1 SCC 59, infra] judgment in Khadarmal case. Therefore, it is not possible to accept this submission. 19. In view of somewhat different conclusions arrived at by this Court in different cases as noticed hereinbefore whereas the contention of Mr. Tapas Ray, learned Senior Counsel appearing on behalf of the appellant - Corporation is that despite the fact that the suits were instituted and decrees were passed prior to the date of pronouncement of judgment in Krishna Kant (supra), we should opine that the civil court had n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the form of remedy given by the statute. It was on the aforementioned principle, the question of applicability of principles 1, 2 and 3 laid down in Para 23 in Premier Automobiles Ltd. (supra) will have to be taken into consideration. 21. A dispute arising in between an employer and employee may or may not be an industrial dispute. The dispute may be in relation to or arising out of a fundamental right of the employee, or his right under a Parliamentary Act and the Regulations framed thereunder, and/or a right arising under the provisions of the Industrial Disputes Act or the sister laws and may relate to same or similar rights or different rights, or even may be based on common law right or contractual right. The question in regard to the jurisdiction of the civil court must, therefore, be addressed having regard to the fact as to which rights or obligations are sought to be enforced for the purpose of invoking or excluding the jurisdiction of a civil court. 22. Appellant, as noticed hereinbefore, is a State within the meaning of Article 12 of the Constitution of India. If an act on its part is found to be wholly unreasonable or arbitrary, the same would be violative of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred, the civil court will have jurisdiction. Where the relationship between the parties as employer and employee is contractual, 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the employees is contained in Order 4 which merely provides that the manager shall within a period of six months, lay down the procedure for recruitment of employees and notify it on the notice board on which Standing Orders are exhibited and shall send copy thereof to the Labour Commissioner. The matter relating to recruitment is governed by the 1973 Act and the 1987 Rules. In the absence of any specific directions contained in the Schedule appended to the Standing Orders, the statute and the statutory rules applicable to the employees of the respondent shall prevail. xxx xxx xxx 33. For the purpose of this matter, we would proceed on the basis that the 1961 Act is a special statute vis-`-vis the 1973 Act and the Rules framed thereunder. But in the absence of any conflict in the provisions of the said Act, the conditions of service including those relating to recruitment as provided for in the 1973 Act and the 1987 Rules would apply. If by reason of the latter, the appointment is invalid, the same cannot be validated by taking recourse to regularisation. For the purpose of regularisation which would confer on the employee concerned a permanent status, there must exis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sen under two Parliamentary Acts, the question of invoking the provisions of Article 254 (1) of the Constitution of India would also not arise herein. Provisions of both the statutes must be given effect to 26. Mr. Ray, however, would submit that the application of principles of natural justice may be different keeping in view, (i) the common law principles; (ii) the statutory provisions; and (iii) the constitutional provisions. The principles of natural justice ensure fairness. It means that a result or process should be just. It is a harmless, though it may be a high-sounding expression; in so far as it attempts to reflect the old jus naturale, it is a confused and unwarranted transfer into the ethical sphere of a term employed for other distinctions; and, in so far as it is resorted to for other purposes, it is vacuous, so said LORD SHAW of Dunfermline in Local Government Board v. Arlidge [1915] AC 120 at p. 138 (HL). 27. The purpose of principles of natural justice is prevention of miscarriage of justice and hence the observance thereof is the pragmatic requirement of fair play in action. {See Sawai Singh vs. State of Rajasthan [(1986) 3 SCC 454], Narinder Mohan Arya v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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