Allowed

The Managing Director and Others v. Ram Sanehi Lal

Allahabad HC2 Jul 2018SAPL/1210/1997

Case brief

AI extract

What is this about?

This second appeal challenges a civil decree awarding salary arrears to a Chaukidar of the Food Corporation of India. The High Court held that the dispute is an industrial dispute involving a workman, thus the Civil Court lacked jurisdiction. The suit for money recovered was barred as the remedy lies under the Industrial Disputes Act.

What did the court decide?

The judgments and decrees of the courts below are set aside and the suit is dismissed as not maintainable.

The Managing Director and Others Vs Ram Sanehi Lal — Service and Employment | Allahabad HC (2018)

¶1

Reserved

¶2

Court No. - 9

¶3

Case :- SECOND APPEAL No. - 1210 of 1997

¶4

Appellant :- The Managing Director & Others Respondent :- Ram Sanehi Lal Counsel for Appellant :- S.N.Srivastava,Satya Prakash Srivastava,Vinod Kumar Agarwal

¶5

Counsel for Respondent :- H.M.Srivastava,Neeraj Srivastava

¶6

Hon'ble Anjani Kumar Mishra,J.

¶7

Heard learned counsel for the appellants and Shri H.M. Srivastava for the respondent.

¶8

This second appeal is by the defendant and arises out of a suit for arrears of salary and other allowances from 2.9.1997 to 6.8.1982 claimed by the plaintiff-respondent.

¶9

The suit was decreed by the trial Court on 29.11.1994 and the judgment and decree affirmed in appeal vide it judgment and decree dated 29.09.1997. Hence this second appeal directed against the concurrent judgments of the two courts below.

¶10

The plaintiff, a Chaukidar in the Food Corporation of India filed a suit no. 99 of 1978, seeking a declaration to be in continuous service. The suit was decreed and the consequential appeal was dismissed.

¶11

On the basis of the decree which held the plaintiff to be in continuous service, the plaintiff claimed salary, increments, promotion and other ancillary benefits from the defendants, which was refused and, therefore, the instant suit was filed.

¶12

The suit was contested primarily the ground, that it was barred by Order 2 Rule 2 CPC. It was also pleaded that the suit was not maintainable and that since the plaintiff had not worked during the period in question, he was not entitled to any payment on the principle of, no work no pay.

¶13

The trial Court finding that the suit was not barred by Order 2 Rule 2 CPC as also by the Central Administration Tribunal Act, 1985, decreed the suit, which decree has been affirmed in appeal. The suit was decreed also because the defendants admitted that no payment had been made to the plaintiff.

¶14

While admitting this appeal, two substantial questions of law have been framed. The order is quoted below:-

¶15

"1. If the courts below being Civil Court did not have jurisdiction to adjudicate upon the rights of the plaintiff respondent claimed in the present suit and the remedy to the plaintiff was available only within the provisions of Industrial Disputes Act?

¶16

2. Whether the suit was barred under the provisions of Order II, Rule-2 C.P.C.?

¶17

No other substantial question of law appears to arise nor pressed."

¶18

It is both these substantial questions of law, which have been pressed by the appellant. He has placed reliance upon Rajasthan State Road Transport Corporation and others Vs. Zakir Hussain 2005 (107) FLR 105 SC and Rajasthan State Road Transport Corporation Vs. Shyam Bihari Lal Gupta 2005 (107) FLR 256 SC in relation to the first substantial question of law and on Virgo Industries (Eng.) Private Limited Vs. Venturetech Solutions Private Limited 2013 (1) SCC 625 as regards the second substantial question of law framed in this appeal.

¶19

Counsel appearing for the respondent has supported the impugned judgment and prayed that this second appeal be dismissed.

¶20

I have considered the submissions made by counsel for the parties and perused the record.

¶21

For determining the first substantial question of law, this Court is required to refer to various provisions of the Industrial Disputes Act, 1947, hereinafter, referred to as the Act.

¶22

Section 2a of the Act provides that the appropriate Government with regard to the Food Corporation of India, established under Section 3 of the Food Corporation Act, 1964, shall be the Central Government.

¶23

Sub-section (k) of Section 2 defines an industrial dispute as any dispute or difference between employers and workmen, apart from others, related with the employment or non employment or the terms of employment or with the conditions of labour of any person.

¶24

Sub-section (rr) defines wages and reads as follows:-

¶25

"all remuneration capable of being expressed in terms of money, which would, if the terms of employment, expressed or implied, were fulfilled, be payable to a workman in respect of his employment or of work done in such employment, and includes-

¶26

(i) such allowances (including dearness allowance) as the workman is for the time being entitled to;

¶27

(ii)............."

¶28

"Sub-section (s) defines a workman, to mean "any person 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 proceedings 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."

¶29

From what has been extracted above, it emerges that that Food Corporation of India is an industry within the meaning of the Industrial Act. The plaintiff, a Chaukidar has raised a dispute regarding non payment of certain money to which he was entitled on account of his employment as a Chaukidar in the Food Corporation of India. Such a dispute in view of Section 2k of the Act is an Industrial Dispute.

¶30

Moreover, it is clear from the definition of a workman in Section 2(s) of the Act that the plaintiff-respondent falls within this definition.

¶31

The Apex Court in Workman of Dimakatach T State Vs Management AIR 1958 SC 353, interpreting the expression "any person" occurring in Section 2k of the Act has held that where a real dispute between the parties, exists and the person regarding whom a dispute is raised which arises out of his employment, terms of employment or conditions of labour, he would be covered by the term "any person" occurring in Section 2k.

¶32

The plaintiff was claiming money to which he was entitled on account of his employment as a Chaukidar. Since the plaintiff is covered within the definition of the term 'workman' and the dispute raised by him is an Industrial Dispute, in my considered opinion, the dispute raised by means of the suit was one which could be decided only in terms of the Industrial Disputes Act, 1947 before the forum provided therein.

¶33

On this question the appellate Court has decided against the appellant and in favour of the plaintiff on the reasoning that the Industrial Disputes Act applies only to 'Mazdoor' while the plaintiff, a Chaukidar is not covered by the term 'Mazdoor' as he was a Chaukidar or Watchman.

¶34

This reasoning, in my considered opinion, and for the reasons given above, especially the definition of a 'workman' as occurring in the Industrial Disputes Act, 1947, is not acceptable. The definition of a workman occurring in the Industrial Disputes Act, in my considered opinion cannot exclude a Chaukidar, which the plaintiff opposite party, admittedly, is.

¶35

Not only is the judgment of the first appeal Court on this issue liable to be reversed, this Court is also of the considered opinion that the suit for the same reason was clearly barred in view of what has been laid down by the Apex Court in Premier Automobiles Limited Vs. Kamlakar Shantaram Wadke and others 1975 (31) FLR 195(SC) , which has held that only if a dispute is not an industrial dispute nor it relates to enforcement of any right under the Act, the remedy lies before the Civil Court.

¶36

It has also been held that if an industrial dispute relates to the enforcement of a right or an obligation created under the Act, the remedy available to the suiter is to get an adjudication under the Act.

¶37

Under the circumstances, this Court has no hesitation in holding that the instant suit, wherefrom this second appeal arises, was not maintainable before the Civil Court and the remedy available to the plaintiff-respondent was one available under the Industrial Disputes Act 1947.

¶38

Moreover, since this Court is of the opinion that the suit itself was not maintainable before the Civil Court, the question of its being barred by Order 2 Rule 2 CPC is rendered purely academic and, therefore, does not require consideration.

¶39

In view of the foregoing discussion, this second appeal is allowed. The judgments and decrees passed by the two Courts below are set aside and the suit is dismissed, as not maintainable.

¶40

No order as to costs.

¶41

Order Date :- 02.07.2018 Mayank

The Managing Director and Others v. Ram Sanehi Lal

Case brief

What is this about?

What did the court decide?

The Managing Director and Others v. Ram Sanehi Lal

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ram Charan Vs Ahsan and 5 Others

Subodh Kumar Jain Vs Shalini

Surendra Prasad Vs Somara Devi

Jugal Kishor and Another Vs Ram Krishna Gupta

Nav Ratan Shrma Vs Smt. Lajwanti Devi

Smt. Shakuntala Devi Vs Ram Praksh and Others