Allowed

Paschim Gujarat Vij Company Limited through Executive Engineer (O and M) v. Jayeshkumar Kanaksinh Jadeja

Gujarat HC9 Aug 2018SA/196/2018

Case brief

AI extract

What is this about?

Second appeal against concurrent decrees holding a retired Executive Engineer to be a 'workman' entitled to serve till 60. The High Court held an Executive Engineer is not a workman under Section 2(s) of the Industrial Disputes Act, 1947, and that the civil court had no jurisdiction over a grievance founded on the Board's Standing Orders; the decrees were set aside.

What did the court decide?

Second Appeal allowed; the judgment and decree of the Trial Court and the judgment and order of the lower Appellate Court are quashed and set aside.

Paschim Gujarat Vij Company Limited through… — Labour and Industrial Disputes | Gujarat HC (2018)

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C/SA/196/2018 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SECOND APPEAL NO. 196 of 2018

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With

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CIVIL APPLICATION NO. 1 of 2018

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE J.B.PARDIWALA

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?	NO
2 To be referred to the Reporter or not ?	NO
3 Whether their Lordships wish to see the fair copy of the judgment ?	NO
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?	NO

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PASCHIM GUJARAT VIJ COMPANY LIMITED THROUGH EXECUTIVE ENGINEER (O AND M)... Petitioner

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Versus

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JAYESHKUMAR KANAKSINH JADEJA & 4... Respondents

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Appearance:

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MR DIPAK R DAVE(1232) for the PETITIONER(s) No. 1 RULE UNSERVED(68) for the RESPONDENT(s) No. 1,2,3,4,5

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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

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Date : 09/08/2018

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ORAL JUDGMENT

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1 The respondents, although served with the notice issued by this Court, yet have chosen not to remain present before this Court either in

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person or through an advocate and oppose this Second Appeal.

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2 This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 is at the instance of the original defendant and is directed against the judgment and order dated 23^rd March 2018 passed by the 6^th Additional District Judge, Gondal in Regular Civil Appeal No.37 of 1999 arising from the judgment and decree dated 26^th February 1999 passed by the 2^nd Joint Civil Judge (Senior Division), Gondal in Special Civil Suit No.47 of 1988.

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3 For the sake of convenience, the appellant herein shall be referred to as the 'original defendant' and the respondents herein shall be referred to as the 'original plaintiffs'.

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4 The respondents – original plaintiffs before this Court are the legal heirs of late Kanaksinh Jivansinh Jadeja. Late Kanaksinh Jivansinh Jadeja was serving as an Executive Engineer with the Paschim Gujarat Vij Company Limited i.e. the appellant herein – original defendant. The plaintiff preferred the Special Civil Suit No.47 of 1988 for a declaration and injunction. He prayed for a declaration that his retirement age should be 60 years and not 58 years. The suit was filed on the premise that although the plaintiff is an Executive Engineer, yet he is a workman under the provisions of the Industrial Disputes Act, 1947 (for short, the 'Act, 1947').

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4 Having regard to the pleadings of the parties, the Civil Court framed the following issues:

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“[1] Whether the plaintiff proves that he is entitled to continue in service up till 60 years as contended?

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[2] Whether the plaintiff proves that he is entitled to the reliefs?

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[3] Whether the defendant proves that this Court has no jurisdiction to try this suit?

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[4] What order and decree?”

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5 The issues framed by the Trial Court vide Exhibit : 17 came to be answered as under:

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“1. In the affirmative.

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2. In the affirmative.

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3. In the negative.

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4. As per final order.”

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6 The Trial Court, while allowing the suit filed by the plaintiff and granting the declaration as prayed for, held as under:

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“(12) Thus, when the plaintiff joined the service, retirement age of the employee was sixty years at the concerned time as per the recruitment rules and therefore, it can be considered that the retirement age limit of the plaintiff would be sixty years. As per the provisions of the Industrial Dispute Act, Gujarat Electricity Board can be considered as an industry. Moreover, considering the facts of the judgment in the case of Sp. C.A. No.236/1984 and 274/1984, Gujarat Electricity Board V/s. Gujarat Electricity Board Employees Union, retirement age limit of the workman serving in Gujarat Electricity Board is considered as six years. Considering all these facts, it is argued for the plaintiff that similarly, the opponent board has no right to alter in the said age of retirement. However, the opponent board has taken defense against the same that as the plaintiff has accepted the rules of the board by filling up the option form in favour of board, the plaintiff cannot be considered as workman and thus, he cannot claim benefit of 60 years age limit of retirement. Moreover, It is stated that as the plaintiff belongs to managerial and supervisory cadre and as he has written confidential reports of the employees, he cannot be considered as workman and therefore, his age of retirement could be

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considered as 58 years instead of 60 years. But considering the details discussed herein above and documentary evidences produced on behalf of the parties, while examining as to whether the plaintiff falls within the definition of the workman or not, it cannot be said that the plaintiff had any supervisory powers and also that he had power to appoint any employee and there is no reason to believe from the evidences on records that he had power to transfer the employees. He was writing confidential report of the employees and granting leaves to the employees, in such circumstances, it cannot be said that the plaintiff was holding managerial and supervisory cadre and the argument that he does not fall within the definition of workman, is also not admissible in aforesaid circumstances. Further, if the plaintiff is entrusted with only such duty to serve, it cannot be said that the plaintiff doesn’t fall within the meaning of workman or he holds managerial power and supervisory cadre. Moreover, it cannot be said that he does not fall within the definition of workman as he is drawing salary more than 1600 and above. Thus, considering all aforesaid discussion, there is reason to believe that the plaintiff falls under the definition of workman.

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(13) Thus, considering all the above discussion, it also appears that, the plaintiff falls within the definition of workman. After the plaintiff was recruited in Saurashtra Government, the Saurashtra Electricity Board was constituted. Therefore, the plaintiff was absorbed as its employee. It also appears from the evidence on record that, the Saurashtra Electricity Board has not framed any service rules and there is reason to believe that, the rules of the Saurashtra Electricity Board might have been accepted, if any. Because, no evidence has been produced showing its specific rules. Thus, it appears from the evidence that, the Saurashtra Electricity Board has not notified any rule or circular contrary to rule of the Government of Saurashtra regarding retirement at the age of 60 years. Considering the documentary evidences produced in this case, the plaintiff was absorbed from Saurashtra Government and the rule No. 60/48 of Finance Department was applicable in Saurashtra Government regarding the age limit. Accordingly, there was entitlement to serve for 60 years. The Resolution No.60/48 dated:10/11/51 regarding this provision has been produced vide Exhibit-46, wherein the retirement age limit of the workman is prescribed, and it is applicable to every workman serving in Civil establishment. It is also mentioned in it that, after the age of 55 years, if the employer thinks that, the health of the workman is not good or he is showing negligence from his duty due to health reasons, he can review his case every year. In such case, the plaintiff is not given retirement according to that provision. Therefore also, there is reason to believe that, the plaintiff is entitled to serve till 60 years. Resolution No.121/48, dated: 19/01/1951 of Finance Department of the Government of Saurashtra has been produced by the defendant vide Exhibit-47. There is also reason to believe that, that Resolution is also

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applicable to the Government employee. The Resolution No.64/48, dated: 16/08/1952 of the Finance Department of the Government of Saurashtra has also been produced by the defendant vide Exhibit-48. Perusing this Resolution, it appears that, the details are mentioned it it as to whom and when the Resolution vide Exhibit-45 is applicable. Considering that details, it is also applicable to the plaintiff case to some extent because earlier the plaintiff was serving as fitter, foreman, supervisor, engineer etc, which falls under the definition of skilled, semi-skilled workman. The plaintiff is included in the definition of workman as defined in the Industrial Dispute Act. Thus, reading Exhibit-45, 46 and 48 together, there is reason to believe that, the plaintiff was entitled to serve till the age of 60 years.”

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7 The Trial Court, while allowing the suit, placed reliance on a Division Bench decision of this Court in the case of Gujarat Electricity Board vs. B. P. Mistri [Special Civil Application No.4685 of 1992 decided on 17^th July 1992]. I shall discuss with this judgment at a little later stage.

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8 The appellant herein – original defendant, being dissatisfied with the judgment and decree passed by the Trial Court, preferred the Regular Civil Appeal No.37 of 1999 in the District Court at Gondal, District: Rajkot. The lower Appellate Court, by judgment and order dated 23^rd March 2018 dismissed the appeal and thereby affirmed the judgment and decree passed by the Trial Court. The lower Appellate Court, while dismissing the appeal filed by the appellant herein, held as under:

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“8 As both the parties have not adduced any oral evidence, likewise either party has not raised any objection for not adducing oral evidence. Moreover, both the parties have relied upon their documents and also admitted the contents of documents. It is also admitted fact that at the time of joining service by the plaintiff with the defendant Board, the retirement age in the cadre of plaintiff's post was 60 years. It is also admitted fact that during his service he has got the promotion as Executive Engineer in the Board. The main contention of the defendant Board is that the plaintiff has filled option form and has accepted the terms and conditions thereof. The above option form is produced by the defendant

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Board at Ex. 44 in the record of the Trial Court. Now discussing the contents of the option form, it is not distinctly stated by the defendant Board or admitted by the plaintiff that the retirement age of the plaintiff would be 58 years. So far the point of retirement is concerned, it is very much important for both the parties. Perusing the said option form B.S.E.R. Circular No.SCR 131(2) dated 7^th March, 1957, but the copy of this circular is not produced by the defendant Board to prove that plaintiff was rightly retired at the age of 58 years. It also not on record that the defendant Board has issued or served any notice to the plaintiff before retiring him at the age of 58 years.

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9 Now discussing the findings of the Trial Court, Ld. Trial Judge has observed that at the time of joining service by the plaintiff, the retirement age was 60 years and the defendant Board has no right to minimise the retirement age, on going through the circular dated 09.02.1964 of defendant Board at Ex. 28, the retirement age is mentioned as 60 years. So, it appears that the Trial Court has rightly decided that the plaintiff is entitled to continue in service up to the age of 60 years. The Trial Court has referred the ratio laid down by the Hon'ble Gujarat High Court in Spl. C.A. no.236/84 and 274/84 in which the Hon'ble Gujarat High Court has held the retirement age of the workman serving in the Electricity Board as 60 years. As the plaintiff was empowered only to submit confidential reports of the employees, to grant leave reports of the employees, he could not be said that the plaintiff was in the managerial and supervisory cadre, and the plaintiff was not empowered to recruit or transfer any employee. So, the Trial Court has rightly decided that the plaintiff was not having supervisory and managerial cadre. Thus the Trial Court has rightly and properly decided that the plaintiff was serving in the cadre of workman and he is entitled to continue in his service up to the age of 60 years. So, this Court also firmly believe that the defendant Board has wrongfully retired the plaintiff on 01.04.1988 at his age of 58 years and he is entitled to continue in service till 01.04.1990 i.e. up to the age of 60 years.

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10 So far the question of legal jurisdiction is concerned the defendant Board has raised formal objections that the plaintiff is workman and the suit is fallen within the jurisdiction of Industrial Dispute Tribunal. However, if so, the defendant Board right to submit application under Order 7 Rule 11 of C.P.C. but such application is not there in the whole proceeding in the Trial Court. In the light of above discussion, this Court firmly believe that the Trial Court has rightly decided the retirement age of the plaintiff as 60 years and also rightly decided that Industrial Dispute Tribunal has no jurisdiction to entertain the suit. Hence, point No.1 and 2 are answered in negative and this Court do not find that the Trial Court has rightly allowed the suit and the impugned judgment and decree are not found erroneous, capricious and perverse. As the Ld. Trial Court has rightly decided the issues between the parties and not required any interference thereof, following above observations, the present appeal is

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required to be dismissed and deserves to be dismissed. Hence, this Court is passing following order.”

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9 Being dissatisfied with the judgment and order passed by the lower Appellate Court, the appellant herein – original defendant is here before this Court with the present Second Appeal under Section 100 of the C.P.C.

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10 By order dated 12^th July 2018, this Second Appeal came to be admitted on the following substantial questions of law:

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“(a) Whether the Executive Engineer can be said to be workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 so as to continue him until the age of 60 years?

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(b) Whether the Civil Court shall have jurisdiction to decide the dispute in question?

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(c) Whether the Civil Court shall entertain the suit filed by the plaintiff based on the service rules and regulations of then Board in view of the provisions of the Industrial Disputes Act, 1947 and in view of General Standing Orders of then Board?

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(d) Whether the Civil Court is justified in directing then Board to continue the plaintiff in service until 01.04.1990 and to pay all service benefits?”

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11 Mr. Dave, the learned counsel appearing for the appellant herein vehemently submitted that both the Courts below committed a serious error in arriving at a conclusion that an Executive Engineer falls within the definition of a “workman”, as defined under Section 2(s) of the Act, 1947. Mr. Dave would submit that the reliance placed by the Trial Court on a Division Bench decision of this Court in the case of B.P. Mistry (supra) for the purpose of taking the view that the original plaintiff is a workman, is completely misconceived. According to Mr. Dave, the case of B.P. Mistry (supra) was one of a Junior Engineer and not an Executive Engineer. Mr. Dave would submit that the word “executive” by

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itself would suggest the managerial capacity to be discharged by way of supervising the work and to manage the administration of the work to be performed of the Deputy Engineer. Mr. Dave, in support of his submissions, has placed reliance on two decisions of this Court: (i) M.K. Sapovadia vs. Gujarat Vidhyut Board [Letters Patent Appeal No.1158 of 2014 decided on 27^th November 2014] and (2) Krishnakant Janmejay Bhatt vs. Executive Engineer G.E.B. [Special Civil Application No.13751 of 2004 decided on 1^st December 2004] .

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12 Mr. Dave further submitted that assuming for the moment that the plaintiff could be termed to be a 'workman' within the Act, 1947, the Civil Court could not have entertained the suit as it had no jurisdiction in relation to a dispute between the employer and employee.

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13 In such circumstances referred to above, Mr. Dave, the learned counsel appearing for the appellant – original defendant prays that there being merit in this Second Appeal, the same may be allowed and the judgment and decree be quashed.

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14 Let me first look into the contention canvassed on behalf of the appellant that an Executive Engineer would not fall within the ambit of “workman”, as defined under the Act, 1947. For the purpose of answering this contention, I can do no better than refer to and rely upon two decisions of this very Court.

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15 In M.K. Sapovadia (supra), a Division Bench of this Court held as under:

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1. “The learned counsel for the appellant contended that though the nomenclature of the post of the respective workman was Deputy Engineer and Executive Engineer, in fact, they were not discharging

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function in supervisory capacity, but they were discharging work as technical persons and as the nature of the work was technical and not in supervisory capacity, it could not be said that the respective workman who is the appellant herein, was covered by exception (iv) of section 2(s) of the Act. Learned counsel made an attempt to show that though in the written statement, the contention was raised that the workmen were in supervisory capacity and could not be termed as workman, however, in the evidence produced before the Tribunal, it was not successfully established. The finding of fact recorded by the Tribunal could not be upset by the learned Single Judge while exercising power under Article 226 and/or Article 227 of the Constitution. It was submitted that the learned Single Judge has not properly considered the matter and therefore, this Court may consider in the present appeal.

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2. We may record that the learned Single Judge after considering the provisions of section 2 of the Act, from paras 5.5.2 to 5.7, has recorded the findings as under:

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5.5.2 The conjoint reading of the undisputed facts and above statutory provision makes it clear that the Officers working in the cadre of Deputy Engineer and Executive Engineer are employed in a supervisory capacity, and they have always drawn wages exceeding what is prescribed in the statute i.e. Rs.1,600/- per month or Rs.10,000/- per month. For this reason, the officers working in the cadre of Deputy Engineer and Executive Engineer are covered by exception-(iv) of Section 2(s) of the Industrial Disputes Act, 1947, and therefore can not claim to be workmen. In view of this finding, though further inquiry may not be necessary, it also transpires that, they also exercise the functions mainly of a managerial nature, either by the nature of the duties attached to the office or by the reason of the powers vested in them. Thus, though it is not in dispute that, these officers are covered by Section 2(s) of the Act, equally true it is that they are excluded by exception-(iv) of that sub-section, for more than one reasons, and that is how they are not workmen within the meaning of Section 2(s) of the Industrial Disputes Act, 1947.

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5.6.1 Further, this Court has already concluded this issue by more than one decisions. So far the cadre of Deputy Engineer is concerned, the said point is specifically answered by this Court in Special Civil Application No.13751 of 2004, in order dated 01.12.2004, the relevant part of which reads as under.

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5. Having considered the submissions made by the learned counsel for the petitioner and having examined the award of the Labour Court, it is not possible to interfere with the findings of the Labour

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Court. As noted above, admittedly, the petitioner was engaged as Deputy Engineer by the respondent. Admittedly, his pay was more than Rs.1600/- per month. The finding of the Labour Court that the evidence on record establishes that the petitioner was discharging duties of supervisory character also cannot be interfered with. I am in agreement with the view of the Labour Court and I find that there is substantial evidence on record to suggest that the petitioner was enjoying control over several subordinates who are working under him. The attempt on the part of the counsel for the petitioner to show that the powers of the petitioner were withdrawn on the basis of communication dated 23rd June 1999 also cannot be of any avail to the petitioner. The said communication only suggests that some other officer was asked to take over the charge of ongoing works from the petitioner. The background in which the said decision was taken is not clear. However, the said communication can only mean that for some internal reasons, the charge of the works otherwise being carried on by the petitioner was handed over to some other officer. That by itself would not divest the petitioner of his character of an officer of the respondent who is otherwise vested with supervisory powers. [emphasis supplied]

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5.6.2 This Court not only does not find any reason to take a different view in the matter, independently also this Court has already arrived at the finding in this regard, as recorded in para:5.5.2 above. Further, if a Deputy Engineer is not a workman, Executive Engineer, who is higher in rank, is certainly not a workman. The point for consideration before this Court thus stands answered accordingly.

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5.7 Additionally, under almost identical circumstances, in the case of Accounts Officers of the Gujarat Electricity Board, this Court has taken the same view, in the case of Gujarat Electricity Board vs. B.M.Shah in Special Civil Application No.5802 of 1988 and the same is even confirmed by the Division Bench in Letters Patent Appeal No.346 of 2001. I see no distinction in the cases on hand, except that it was the case of Accounts Officers, while the present cases are of the Deputy Engineers and Executive Engineers. Thus, the view of learned Single Judge of this Court, as confirmed by the Division Bench in case of an Accounts Officer applies with full force in the case of Deputy Engineer and Executive Engineer as well. The applicability of Section 2(s) of the Industrial Disputes Act, 1947 is not in dispute, but the argument of learned advocates for the officers is that, they are covered by Section 2(s) of the Act and further that, they are not excluded through any of the four exceptions under that sub-section. It is this later part of the argument, which is rejected. In view of the undisputed facts

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recorded above, it is held that the officers working in the cadre of Deputy Engineer and Executive Engineer are covered by exception(iv) of Section 2(s) of the Act and thereby they stand excluded from the ambit of the definition of the workman under Section 2(s) of the Act.

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5. The aforesaid aspect as such if considered as it is, one may gather that the work of the Deputy Engineer or the Executive Engineer could be said as supervisory in nature. In the written statement before the Tribunal, at paragraph 14, it was stated as under:

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(14) The Opponent Board states and submits that Shri Sapovadiya was having a separate chamber together with a telephone line, he was doing the work of supervisory and/or administrative cader and therefore cannot avail the benefit of the award passed in Ref(IT) 325/81. He was recommending the leave etc of his subordinate staff. Confidential reports of his subordinate employees were filled in by Shri Sapovadiya as reporting officer. He was assessing and judging the work of his subordinate staff. He was recommending to fill up vacant post by temporary appointments. He was the member of the staff selection committee. He was passing the T.A. Bill claims of his subordinate staff. He was drawing monthly salary of rupees. He was planning his tour programs and got wide powers of issuing cheques jointly with Additional Chief Engineer. He was having persons working under him. Therefore, by virtue of his functions it is crystal clear that he was having powers of control and supervision. In short the main work he was required to do was of supervision. It is therefore considered that he was not a workman and on completion of 58 years he was retired.

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6. The evidence of cross examination of Avinash Rupsinh, who was the witness for the respondent Electricity Company, if considered with the examination-in-chief which was tendered by way of affidavit, shows that the duties which were being performed by the appellant was supervisory in nature inasmuch as the Executive Engineer used to supervise the function of junior Civil Engineer and he used to visit the factory and while visit, Junior Engineer was accompanying the Executive Engineer. Further, the reports were being prepared by the Executive Engineer and he was also supervising the function of subordinate staff. If any misconduct was committed, he had to report to the higher officer and further, tour programmes were also being finalised by him. We are conscious of the fact that while exercising power under Article 226 and/or 227 of the Constitution, this Court may not undertake the exercise of re-appreciation of the

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evidence, but at the same time, if the findings of fact is recorded by the Tribunal without their being any evidence, it could be said that such findings are perverse to the record for which the interference under Articles 226 and 227 of the Constitution can be made. Even if the evidence is appreciated and re-appreciated, we do not find that it could be said that the appellant was not discharging the work in supervisory capacity. Merely because the appellant was having technical qualification, is not the ground to conclude that he was a technical person and not working in supervisory capacity. At this stage, we may profitably extract the observations made by the Apex Court in the case of Burmah Shell Oil Storage and Distribution Co. of India Ltd. Vs. The Burma shell Management Staff Association & Ors. reported in 1970 (3) SCC 378 and more particularly, the observations made at para 16, which reads as under -

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16. We may, to clarify this aspect, take an example of a qualified technical Engineer who is concerned with manufacture of machines. If he himself creates a machine with the use of his technical knowledge, he will certainly be held to be employed to do technical work. On the, other hand, if the machine is being made by others and all he does is to give advic e or guidance, the actual technical work will have to be held to be done by the mechanics carrying on the work, while his duty will only be supervisory. A more clear illustration which may be useful is that of a painter. If a person is employed to paint walls of a house or paint furniture, it would clearly be employment to do manual labour. If, on the other hand, he is an artist who paints works of art as a result of his own creative and imaginative faculty, he would be held to be employed on technical work, 77 4 even though, in creating the work, he will all the time be using his own hands to paint the picture. There can be a third case where a good artist may have pupils working under him who paint artistic pictures and he only guides their work. He may, on occasions, even make some improvements by retouching the work done 'by the pupils. On the face of it, such a person cannot-be held to be employed to do technical work; be would be a technical supervisor. These examples clearly indicate that, in the case of the Transport Engineer, whose principal duties are to see that the work is properly done by the skilled and unskilled workmen working under he is really employed to do supervisory work and not technical work.

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7. The aforesaid shows that even if the person is a technical person or qualified as technical engineer, but if he supervising work of other

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technical persons and also of other staff, the work undertaken by him can be said as supervisory work and not technical work. Further, if the evidence as observed hereinabove is considered, it can be said that the appellant was also discharging work in managerial capacity since he had to only supervise the work of subordinate staff, but also had to take important decisions in managerial capacity.

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8. Apart from the above, we need to emphasize that the appellant was Class-I officer with the designation of Executive Engineer. The word executive would suggest the managerial capacity to be discharged by way of supervising the work and to manage the administration of the work to be performed of the Deputy Engineer and in turn the Deputy Engineer had also to supervise the work of subordinate staff, may be work-charge and other lower staff.

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9. In our view, it cannot be said that the learned Single Judge has committed error in recording the finding referred to hereinabove. We are also of the view that even if the evidence is considered, the finding recorded by the Tribunal that the appellant was workman can be said as perverse to the record. On the contrary, the Tribunal lost sight of the important aspect of the functions to be discharged by the appellant in managerial capacity of supervising the work of subordinate staff coupled with the aspect that in any case, the salary of the appellant was above the minimum prescribed limit. In view of the aforesaid, we find that no case is made out for interference.

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10.Before parting with, we may record that Mr.Vasavada, learned counsel for the appellant, at 11.00 AM, had requested the Court to call for the other cognate appeals which were lying for office objection, but the point involved in those appeals is the same as to be decided in the present appeal since the learned Single Judge had passed common judgment and order.

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11.With the consent of the learned advocates appearing for both the sides, we had called for those papers and as the issue is covered by the present matter, separate order is passed in those proceedings.

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12.In view of the above, no case is made out for interference. Hence, the appeal is dismissed. Accordingly, Civil Application would not survive and shall stand disposed of accordingly.”

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16 In Krishnakant Janmejay Bhatt (supra), a learned Single Judge of this Court held as under:

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“2. The petitioner had approached the Labour Court on the ground that though he was working as a workman and the age of superannuation therefore form him would be 60 years, the respondent Board retired the petitioner upon reaching the age of 58 years. The Labour Court rejected the reference on the short ground that the petitioner was not a ‘workman’ as defined in the Industrial Disputes Act since he was receiving salary of excess of Rs.1600 per month and that he was discharging duties of supervisory nature. It is this award of the Labour Court which the petitioner has challenged in the present petition.

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3 The respondent herein had strongly resisted the reference before the Labour Court primarily on the ground that the petitioner is not a workman. It was contended that he was discharging duties of supervisory nature. It was pointed out that the petitioner had deliberately not disclosed his designation. It was contended that he was working as Deputy Engineer and in discharge of his duties which were of supervisory nature, the petitioner enjoyed certain degree of control over several officers working under him, including Junior Engineers, Junior Clerks,Surveyors, Line Inspectors, Linemen, Drivers and Peons. It was contended that all these officials of the respondent worked under the supervision and direct control of the petitioner. The petitioner had powers to sanction their leave. The petitioner used to write their CRs and used to assign duties to them. The petitioner also as and when required was empowered to censure these officials working under him and also to make appropriate report in this regard to the higher authorities. It was also contended that the said employees carried out the task of electrification under the supervision and guidance of the petitioner. It was, therefore, contended that the petitioner was discharging duties as Head of the Department and was therefore not a 'workman' within section 2(s) of the Industrial Disputes Act. The respondent also produced several documents to substantiate these averments.

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4. The Labour Court after considering the evidence on record which included primarily the deposition of the petitioner and the documentary evidence produced by the respondent which was also supported by oral evidence of the officer of the respondent came to the conclusion that the duties discharged by the petitioner were of supervisory nature and since admittedly his salary was in excess of Rs.1600/- per month he cannot be considered as a workman within the meaning of section 2(s) of the Industrial Disputes Act. While appreciating the evidence, oral as well as documentary, the Labour Court found that some of the averments made by the petitioner in his oral deposition are contrary to the documentary evidence produced and proved by the respondent. The Labour Court, in fact, noted that the petitioner had tried to mislead

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the Court. Thus, considering the entire evidence on record, the Labour Court found that the petitioner discharged duties of supervisory nature and was therefore not a 'workman'.

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5. Having considered the submissions made by the learned counsel for the petitioner and having examined the award of the Labour Court, it is not possible to interfere with the findings of the Labour Court. As noted above, admittedly, the petitioner was engaged as Deputy Engineer by the respondent. Admittedly, his pay was more than Rs.1600/- per month. The finding of the Labour Court that the evidence on record establishes that the petitioner was discharging duties of supervisory character also cannot be interfered with. I am in agreement with the view of the Labour Court and I find that there is substantial evidence on record to suggest that the petitioner was enjoying control over several subordinates who are working under him. The attempt on the part of the counsel for the petitioner to show that the powers of the petitioner were withdrawn on the basis of communication dated 23rd June 1999 also cannot be of any avail to the petitioner. The said communication only suggests that some other officer was asked to take over the charge of ongoing works from the petitioner. The background in which the said decision was taken is not clear. However, the said communication can only mean that for some internal reasons, the charge of the works otherwise being carried on by the petitioner was handed over to some other officer. That by itself would not divest the petitioner of his character of an officer of the respondent who is otherwise vested with supervisory powers.”

¶116

17 The two decisions of this Court referred to above is a clear indication that an Executive Engineer would not fall within the definition of “workman”, and in such circumstances, an Executive Engineer would attain superannuation at the age of 58 and not at the age of 60.

¶117

18 Let me now look into the Division Bench decision of this Court in the case of B. P. Mistry (supra), on which reliance has been placed by the Trial Court. The Division Bench in B. P. Mistry (supra) has observed as under:

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“ The petitioner seeks to challenge the impugned order of the Industrial Tribunal, directing the petitioner to treat the respondent as having served

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as Junior Engineer till 28^th February, 1992 and to pay him accordingly pay and allowances as also post retiral benefits. It was the contention of the petitioner that the respondent, who was working as a Junior Engineer, was not a 'workman', within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and, therefore, he was not entitled to continue in service till the age of 60 years. This question had arisen in other references, in the context of Deputy Engineers and Executive Engineers and having considered those Awards, the Tribunal observed in paragraph 6 of its judgment that a Deputy Engineer was held to be a 'workman', in terms of Section 2(s) of the said act and was entitled to continue in service till the age of 60 years and, therefore, there was no reason why a Junior Engineer, who was subordinate to a Deputy Engineer, should not be treated as a 'workman', who would be entitled to continue in service till the age of 60 years. The Tribunal also noted that the Executive Engineer too was entitled to continue in service till the completed 60 years of age, being a 'workman', in terms of Section 2(s) of the Act, and when an Executive Engineer was held to be a workman, there was no reason why a Junior Engineer should not be held to be a workman. Apart from this, the Tribunal, after considering the evidence on record having bearing on the nature of the work to be discharged by the respondent, found that the respondent had not worked in any supervisory capacity and that he was a technical hand and had to discharge duties of a technical nature. We do not find any valid reason for taking a different view in the matter. This is not a case, where any inadmissible evidence is taken into consideration or any admissible evidence is rejected. The Tribunal has not committed any error, much less any error apparent on the face of the record in passing the impugned order. We, therefore, do not find any reason to interfere with the impugned decision. This Special Civil Application is, therefore, rejected, with no order as to costs.”

¶122

19 It is evident on plain reading of the judgment of the Division Bench referred to above that the Court was dealing with a matter of a Junior Engineer. It appears that in the said case, the Tribunal had noted that an Executive Engineer would also be entitled to continue in service till the age of 60 years being a workman and if that be so, then there was no reason for a Junior Engineer held not to be workman. The decision of the Tribunal came to be affirmed by the Division Bench without any further discussion. The fact remains that B.P. Mistry was a Junior Engineer. The Division Bench decision of this Court, later in point of time, in the case of M.K. Sapovadia (supra) makes the position of law more clear.

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20 Thus, I have no hesitation in arriving at the conclusion that the two Courts below committed an error in treating the original plaintiff as a workman.

¶126

21 The second question that falls for my consideration is that even assuming for the moment that the original plaintiff was a workman whether the Civil Court had the jurisdiction to entertain the suit and grant the relief of declaration as prayed for?

¶127

22 In this context, let me first refer to Section 9 of the C.P.C. which says that courts to try all suits unless their cognizance is either expressly or impliedly barred. There is one broad aspect as to whether Civil Court has got jurisdiction at all in Industrial matters. The land mark judgment in this aspect is that of the Apex Court reported in "1976 (I) LLN page 1 = AIR 1975 S.C.2238 (PREMIER AUTOMOBILES LIMITED -versusKAMALAKAR SHANTHARAM WADKE)." In the said judgment, the Supreme Court has set out the principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute. This is one of the numerous issues that used to invariably crop up in a Civil Court. The issue is about an industrial dispute. To put it in simple terms, an industrial dispute as defined under the Industrial Disputes Act, 1947 is a dispute or difference of opinion between an employer and employee in respect of their conditions of working. Therefore, in respect of such an industrial dispute, when a conflict arises, how far a Civil Court can interfere in such matters is the question. The Supreme Court has set out four broad principles.

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"(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;

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(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;

¶132

(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;

¶133

(4) If the right which is sought to be enforced is a right created under the Act such as Chap.V.A then the remedy for its enforcement is either S.33C or the raising of an industrial dispute, as the case may be."

¶134

23 For instance if the heir of a deceased employee or some other person makes a rival claim in respect of the terminal benefits payable to a deceased employee, then though the issue concerns the concerned employee as against the employer, still, the core issue of the dispute is not the one arising under the Industrial Disputes Act. In such cases, the remedy will be by way of a Civil suit and the Civil Court will have ample jurisdiction to deal with that issue.

¶135

24 Similarly there may be cases, where the issue may fall within the category of an Industrial Dispute, arising out of the right or liability under the general law or common law and under the Industrial Disputes Act. For instance, one may dispute the amount payable by the L.I.C. covered by the provisions of the general law or any other common law, yet, the issue may still relate to an employee, the Insurance Company and the employer by virtue of some tripartite agreement. In such a situation, the jurisdiction of the Civil Court may be the alternative. Because, the employee can validly raise an Industrial Dispute under the provisions of the Industrial Disputes Act to get his grievances redressed

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or he can resort to the Civil Court remedy.

¶139

25 On the other hand, if the issue squarely falls within the ambit of the provisions of the Industrial Disputes Act, enforceable under that Act, then the remedy will be only under the said Act and Civil Court jurisdiction will be completely ousted. For example, under the Industrial Disputes Act, the justification of a strike or lockout or lay off can be worked out only through the machinery provided under the Industrial Disputes Act. In view of the said set-up, the Jurisdiction of the Civil Court is completely taken way. The Judgment of the Supreme Court in Premier Automobiles case has been subsequently dealt with still more elaborately in the Rajasthan Road Transport Corporation Case reported in "1995 (II) LLJ 728 : (1995) 5 SCC 75 (THE RAJASTHAN STATE ROAD TRANSPORT CORPORATION AND ANOTHER, ETC., versus KRISHNAKANTH, ETC.)". Reference can be had to paragraphs 22,23,25 and 26. A reading of the above paragraphs gives a clear picture as to what extent and in what cases the Civil Court can exercise its jurisdiction in respect of the Industrial Matters. The observations in para-25 are relevant;

¶140

"25........This statement cannot be understood as saying that no industrial dispute can ever be entertained by or adjudicated upon by the Civil Courts. Such an understanding would not only make the statement of law in principle No.2 wholly meaningless but would also run counter to the well established principles on the subject.........It is therefore always in the interest of the workmen that disputes concerning them are adjudicated in the forums created by the Act and not in a Civil Court. That is the entire policy underlying the vast array of enactments concerning workmen. This legislative policy and intendment should necessarily weigh with the Courts in interpreting these enactments and the disputes arising under them".

¶141

26 Ultimately the Supreme Court summarised the principles in paragraph 32. In this judgment, seven principles have been evolved. In

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paragraph 34, the Supreme Court also stated that the principles enunciated therein shall apply to all pending matters and also the suits and proceedings to be instituted hereafter. The seven principles evolved are as follows:

¶145

(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 2A of the Industrial Disputes Act, 1947.

¶146

(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 Act.

¶147

(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 meaning of Section 2(k) and Section 2A 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.

¶148

(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.

¶149

(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

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effectiveness of the remedies provided by the Industrial Disputes Act.

¶153

(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 the Industrial Disputes Act or the civil court where recourse to civil court is open according to the principles indicated herein.

¶154

(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 relief as they think appropriate in the circumstances for putting an end to an industrial dispute.

¶155

27 Subsequently, a two Judge Bench of the Supreme Court in Rajasthan SRTC Vs. Zakir Hussain reported in (2005) 7 SCC 447 relied upon Premier Automobiles Judgment (cited supra) and Rajasthan SRTC Judgment reported in (1995) 5 SCC 75. The four principles laid down in the Premier Automobiles case and the seven principles subsequently expanded in Rajasthan SRTC case was referred to in detail and the Hon'ble Supreme Court highlighted the well known principle that whereby an act creates an obligation and enforces the purpose in a specified manner, the purpose cannot be enforced in any other manner. In the said judgment, the Hon'ble Supreme Court was dealing with the case of a Conductor who was on daily wages on probation for a period of two years and whose service came to be terminated on the ground of unsatisfactory performance. The challenge to the order of termination was by way of a suit for declaration that the termination order was illegal, against the principles of Natural Justice and was therefore liable to be set aside. It was also claimed that the employee was entitled to

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continuity in service without any break. The Supreme Court ultimately held that the employee ought to have worked out his remedies under the Industrial Disputes Act and the Civil Court jurisdiction could not have been invoked.

¶159

28 Subsequently, a two Judge Bench of the Supreme Court in the decision reported in Rajasthan SRTC Vs. Mohar Singh reported in (2008) 5 SCC 542 dealt with a case of dismissal. The employee approached the Civil Court for setting aside the order of dismissal. The Trial Court decreed the suit. The first appeal was also dismissed by the learned Additional District and Sessions Judge. The High Court also dismissed the second appeal holding that there was no substantial question of law involved.

¶160

29 In Mohar Singh's (supra) the present case, even after referring to the Premier Automobiles Judgment and the two earlier decisions in Rajasthan SRTC reported in (1995) 5 SCC 75 as well as in (2005) 7 SCC 447, the Supreme Court declined to interfere with the judgment impugned before it. This time the Supreme Court leaned in favour of exercising the right of an employee through the Civil Court for working out his remedies by stating as under in paragraphs 15, 19 and 29:

¶161

15. Civil Court may have a limited jurisdiction in service matters but it cannot be said to have no jurisdiction at all to entertain a suit. It may not be entitled to sit in appeal over the order passed in the disciplinary proceedings or on the quantum of punishment imposed. It may not in a given case direct reinstatement in service having regard to Section 14(1) (b) of the Specific Relief Act, 1963 but, it is a trite law that where the right is claimed by the plaintiff in terms of common law or under a statute other than the one which created a new right for the first time and when a forum has also been created for enforcing the said right, the Civil Court shall also have jurisdiction to entertain a suit where the plaintiff claim benefit of a fundamental right as adumbrated under Article 14 of the Constitution of India or mandatory provisions of statute or statutory rules

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governing the terms and conditions of service.

¶165

19. We must also notice the distinction between a right which is conferred upon an employer under a statute for the first time and also providing for a remedy and the one which is created to determine the cases under the common law right. Only in a case of the former, the Civil Court's jurisdiction may be held to be barred by necessary implication.

¶166

29. The decisions referred to hereinbefore clearly brings about a distinction which cannot be lost sight of. If a right is claimed under the Industrial Disputes Act or the sister laws, the jurisdiction of the Civil Court would be barred, but if no such right is claimed, civil court will have jurisdiction.

¶167

30 The issue was further dealt with in an elaborate manner by a three Judge Bench of the Supreme Court in Rajasthan SRTC Vs. Bal Mukund Bairwa reported in (2009) 4 SCC 299 . The earlier decisions of the Rajasthan SRTC judgments reported in (1995) 5 SCC 75, (2005) 7 SCC 447 and (2008) 5 SCC 548, were all examined in detail by keeping the principles laid down in Premier Automobiles judgment in the forefront.

¶168

31 In fact before entering into the issue concerned in that case, the Supreme Court noted a reference made to it by the Division Bench in the order dated 22.11.2007 for the resolution of a purported conflict in 2 three Judges Bench judgment of the Supreme Court in Rajasthan SRTC case viz., (1995) 5 SCC 75 and (2006) 1 SCC 59. The purported conflict as noted in the said judgment centres around the jurisdiction of the Civil Court to entertain the suits questioning the order of termination passed by the SRTC against its employees.

¶169

32 The Supreme Court in the (2009) 4 SCC 299 judgment referred to Section 9 of the Code of Civil Procedure which confirms the jurisdiction of the Civil Court to try all suits of a civil nature excepting the suits of which their cognizance is either expressly or impliedly barred. The Supreme Court also took notice of the scheme of the Industrial Disputes

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Act, 1947 in regard to the procedure prescribed for the resolution of the disputes relating to the employees on the one side and the employers on the other side. The view taken by the Hon'ble Supreme Court is as under in paragraph 20:

¶173

20. Before us, however, the statutory Regulations framed by the appellant - Corporation under Section 45 of the Act had been placed. We do not find that any distinction has been made in regard to the matters relating to holding of the departmental proceedings against an employee for commission of a misconduct vis-`-vis the industrial workers. The question as to whether in a case of this nature where violation is alleged as regards compliance of principles of natural justice either on common law principles or in terms of the statutory Regulations framed by the appellant - Corporation, which is a fundamental right in terms of Article 14 of the Constitution of India, a civil suit will be maintainable or not, thus, have not been taken into consideration in any of the aforementioned decisions. The legal principles, namely, presumption in regard to the jurisdiction of the Civil Court and interpretation of a statute involving plenary jurisdiction of a civil court had also not been taken into consideration.

¶174

33 Further it proceeded to hold as to under what circumstances the Civil Court jurisdiction can be invoked. A reference to paragraphs 21, 23 and part of para 24 can be usefully referred, which are as follows:

¶175

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.

¶176

23. If an employee intends to enforce his constitutional rights or a right under a statutory Regulation, the civil court will have the necessary jurisdiction to try a suit. If, however, he claims his right and corresponding obligations only in terms of the provisions of the Industrial Disputes Act or the sister laws so called, the civil court will have none.

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In this view of the matter, in our considered opinion, it would not be correct to contend that only because the employee concerned is also a workman within the meaning of the provisions of the 1947 Act or the conditions of his service are otherwise governed by the Standing Order certified under the 1946 Act ipso facto the Civil Court will have no jurisdiction. This aspect of the matter has recently been considered by this Court in Rajasthan State Road Transport Corporation & ors. vs. Mohar Singh [(2008) 5 SCC 542]. The question as to whether the civil court's jurisdiction is barred or not must be determined having regard to the fact of each case.

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If the infringement of Standing Order or other provisions of the Industrial Disputes Act are alleged, the civil court's jurisdiction may be held to be barred but if the suit is based on the violation of principles of common law or constitutional provisions or on other grounds, the civil court's jurisdiction may not be held to be barred. If no right is claimed under a special statute in terms whereof the jurisdiction of the civil court is barred, the civil court will have jurisdiction.

¶181

24. When there is a doubt as to whether civil court has jurisdiction to try a suit or not, the courts shall raise a presumption that it has such jurisdiction.

¶182

34 In Dhulabhai vs. State of M.P. [AIR 1969 SC 78], the Supreme Court held that if a statute creates a special right or liability and provides procedure for the determination therefor, an aggrieved party should call in aid the provisions of the statute and he cannot invoke the jurisdiction of any other forum. The condition No.2 of Dhulabhais case (supra) reads as under;

¶183

Where there is an express for bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the later case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.

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35 The position of law is made more clear by the Supreme Court in Rajasthan State Road Transport Corporation and others vs. Deen Dayal Sharma [(2010) 6 SCC 697]. In the said case, the jurisdiction of the Civil Court to order reinstatement of the respondent and grant of financial benefits of service to him came to be questioned. The respondent was appointed as a conductor by the Rajasthan State Road Corporation. He came to be dismissed from service. His departmental appeal also came to be dismissed. He then preferred a civil suit in the Court of Additional Munsif and Judicial Magistrate, Jaipur city praying that the order of dismissal be declared unlawful, illegal, void and ineffective being contrary to the Standing Orders as no departmental inquiry was held and he be held to be entitled to all benefits as if he continued in service. The Trial Judge, after recoding the evidence of the respondent, overruled the objection raised by the appellant about the jurisdiction of the Civil Court and vide judgment and decree declared the order of dismissal illegal and ordered reinstatement of the respondent and other financial benefits to him. The Corporation challenged the judgment and decree passed by the Trial Court in appeal before the District Judge, but that was dismissed on the ground of delay. The Second Appeal preferred by the Corporation before the High Court came to be dismissed and held that the concurrent findings of fact recorded by Courts below warranted no interference. Thereafter, the matter was carried before the Supreme Court. The Supreme Court, while allowing the appeal filed by the Corporation held as under:

¶187

“7. In The Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke of Bombay and Others (1976) 1 SCC 496 : (AIR 1975 SC 2238), a threeJudge Bench of this Court considered Section 9 of the Civil Procedure Code, 1908, the provisions of Industrial Disputes Act, 1947 and large number of decisions by this Court, as well as English and other Indian Courts and summed up the principles applicable to the jurisdiction of the civil court in

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relation to an industrial dispute thus :

¶191

"23.....

¶192

(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.

¶193

(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.

¶194

(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.

¶195

(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 33-C or the raising of an industrial dispute, as the case may be."

¶196

In paragraph 24 of the Report, this Court further clarified :

¶197

"24. We may, however, in relation to principle No. 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 2-A 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 No. 2. Cases of industrial disputes by and large, almost invariably, are bound to be covered by principle No. 3 stated above."

¶198

8. In the case of Rajasthan State Road Transport Corporation and another v. Krishna Kant and others (1995) 5 SCC 75 : (AIR 1995 SC 1715 : 1995 AIR SCW 2683), this Court was concerned with the question, where the dispute between the employer and the workmen involves the recognition, application or enforcement of the certified Standing Orders, whether jurisdiction of civil court to entertain a suit with respect to such dispute is barred. A three-Judge Bench extensively considered the nature of the Standing Orders; the scope of 'Industrial Dispute' and a long line of cases of this Court, including Premier Automobiles (AIR 1975 SC 2238), and summarized the legal position as follows :

¶199

"1) Where the dispute arises from general law of contract, i.e.,

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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.

¶203

¶204

(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 meaning 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.

¶205

¶206

(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.

¶207

(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

¶208

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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 the Industrial Disputes Act or the civil court where recourse to civil court is open according to the principles indicated herein.

¶211

(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 relief as they think appropriate in the circumstances for putting an end to an industrial dispute."

¶212

9. In Rajasthan State Road Transport Corpn. and others v. Zakir Hussain (2005) 7 SCC 447 , this Court held that the employees of the State Road Transport Corporation are not civil servants, and they are not entitled to protection of Article 311(2) of the Constitution. While dealing with the question of jurisdiction of civil court in the matters of industrial dispute, this Court applied the principles enunciated in Krishna Kant, (AIR 1995 SC 1715 : 1995 AIR SCW 2683) in the following words :

¶213

"35.....This Court has very explicitly summarised the principles flowing from the discussion in the judgment in para 35 and applying the above principles this Court has categorically held that the suits filed by the employees in those appeals were not maintainable in law......

¶214

36. For the foregoing reasons, we hold that the respondent ought to have approached the remedies provided under the Industrial Disputes Act. He has miserably failed to do so but approached the civil court, which on the facts and circumstances of the case has no jurisdiction to entertain and try the suit."

¶215

10. A three-Judge Bench of this Court in the case of Rajasthan SRTC and others v. Khadarmal4, again considered the question regarding jurisdiction of civil court in the matter of termination of service of a probationer and following the judgments of this Court in Zakir Hussain [(2005) 7 SCC 447] and Krishna Kant [(1995) 5 SSC 75] held :

¶216

"6. In our view, as the civil court had no jurisdiction, the decrees which were passed have no force of law. They are accordingly set aside. In our view, there can be no direction to reinstate or to continue reinstatement...."

¶217

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11. It appears that in the case of Rajasthan State Road Transport Corporation and another v. Bal Mukund Bairwa (2007) 14 SCC 41 : (AIR 2009 SC (Supp) 1857), a two-Judge Bench of this Court noticed some conflict in the judgments of this Court in Krishna Kant (AIR 1995 SC 1715 : 1995 AIR SCW 2683) and Khadarmal (2006) 1 SCC 59 and, accordingly, referred the matter to a larger Bench. A three-Judge Bench of this Court in its decision titled Rajasthan State Road Transport Corporation and Another v. Bal Mukund Bairwa (2) (2009) 4 SCC 299 : (2009 AIR SCW 2566), revisited the issue with regard to jurisdiction of civil court to entertain suits questioning the orders of termination and held as follows :

¶220

"36. If an employee intends to enforce his constitutional rights or a right under a statutory regulation, the civil court will have the necessary jurisdiction to try a suit. If, however, he claims his right and corresponding obligations only in terms of the provisions of the Industrial Disputes Act or the sister laws so-called, the civil court will have none. In this view of the matter, in our considered opinion, it would not be correct to contend that only because the employee concerned is also a workman within the meaning of the provisions of the 1947 Act or the conditions of his service are otherwise governed by the Standing Orders certified under the 1946 Act, ipso facto the civil court will have no jurisdiction. This aspect of the matter has recently been considered by this Court in Rajasthan SRTC v. Mohar Singh [(2008) 5 SCC 542 : (AIR 2008 SC 2553 : 2008 AIR SCW 3567)]. The question as to whether the civil court's jurisdiction is barred or not must be determined having regard to the facts of each case.

¶221

37. If the infringement of the Standing Orders or other provisions of the Industrial Disputes Act are alleged, the civil court's jurisdiction may be held to be barred but if the suit is based on the violation of principles of common law or constitutional provisions or on other grounds, the civil court's jurisdiction may not be held to be barred. If no right is claimed under a special statute in terms whereof the jurisdiction of the civil court is barred, the civil court will have jurisdiction.

¶222

38. Where the relationship between the parties as employer and employee is contractual, the 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

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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.

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39. The 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 also bound to follow the principles of natural justice. In the event it is found that the action on the part of the State is violative of the constitutional provisions or the mandatory requirements of a statute or statutory rules, the civil court would have the jurisdiction to direct reinstatement with full back wages."

¶227

12. The learned counsel for the respondent submitted that controversy with regard to the jurisdiction of civil court in entertaining a suit wherein the order of termination is challenged on the ground of violation of principles of natural justice has been set at rest in Bal Mukund Bairwa (2), (2009 AIR SCW 2566). She heavily relied upon paragraph 39 of the report quoted above and contended that civil court rightly entertained, tried and decreed the suit in the present matter.

¶228

13. We shall first notice the case set up by the respondent in the plaint. It was averred :

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"(kha) That defendants did not hold any departmental enquiry against the plaintiff in respect of the said remark and nor in this regard the plaintiff was accorded any opportunity of defence and hearing. The plaintiff has been dismissed from service on the basis of the said false remark without according him the opportunity of defence and hearing. As per section 35 of Standing Orders if there is any allegation of misconduct against any employee then holding departmental enquiry against him is necessary and thereafter on proving the charges against him he may be punished but in the instant case Defendants did not hold any departmental enquiry for the said false remark put against the Plaintiff and nor the plaintiff was accorded opportunity of defence and hearing and order of dismissal of the plaintiff from service has been passed which being contrary to Section 35 of Standing Orders and principles of natural justice is liable to be quashed.

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(ga) That the order of dismissal of service of the Plaintiff is of Penal nature. In the order of dismissal of service issued against the plaintiff the plaintiff's service being not satisfactory and breach of the terms and conditions of appointment due to which he has been

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dismissed from service which is a blot on the character of the Plaintiff. Which of the conduct has been breached by the Plaintiff is not clear from the order of dismissal of service of Plaintiff. In this regard any departmental enquiry was not held against the Plaintiff and before passing the dismissal order, the plaintiff was not accorded opportunity of defence and hearing which being contrary to law and Section 35 of Standing orders is liable to be quashed."

¶234

14. The case of the respondent as set up in the plaint, therefore, is that in the absence of departmental enquiry as contemplated in Standing Orders, the order of dismissal is bad in law. It is true that respondent pleaded that he has been dismissed from service without affording any opportunity of defence and hearing and in breach of principles of natural justice but the said plea has to be understood in the backdrop of his pleading that the dismissal order has been passed contrary to Standing Orders without holding any departmental enquiry.

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15. The legal position that Standing Orders have no statutory force and are not in the nature of delegated/subordinate legislation is clearly stated by this Court in Krishna Kant, (AIR 1995 SC 1715 : 1995 AIR SCW 2683). In that case (Krishna Kant), this Court while summarizing the legal principles in paragraph 35(6) stated that 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' and any violation of these Standing Orders entitles an employee to appropriate relief either before the forum created by the Industrial Disputes Act or the civil court where recourse to civil court is open according to the principles indicated therein.

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16. In Bal Mukund Bairwa (2) (2009 AIR SCW 2566), in para 37 of the report, the position has been explained that if the infringement of the Standing Orders is alleged, the civil court's jurisdiction may be held to be barred but if the suit is based on the violation of principles of common law or constitutional provisions or on other grounds, the civil court's jurisdiction may not be held to be barred. In our opinion, nature of right sought to be enforced is decisive in determining whether the jurisdiction of civil court is excluded or not.

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17. In the instant case, the respondent who hardly served for three months, has asserted his right that the departmental enquiry as contemplated under the Standing Orders, ought to have been held before issuing the order of dismissal and in absence thereof such order was liable to be quashed. Such right, if available, could have been enforced by the respondent only by raising an industrial dispute and not in the civil suit. In the circumstances, it has to be held that civil court had no jurisdiction to entertain and try the suit filed by the respondent.

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18. In the result, appeal is allowed and impugned order of the High Court and judgments of the courts below are set aside. No order as to costs.”

¶241

36 The principles discernible from the decision of the Supreme Court referred to above may be summarised as under:

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[1] The nature of right sought to be enforced is decisive in determining whether the jurisdiction of Civil Court is excluded or not.

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[2] If it is the case of the employee that he has been dismissed from service or has been made to retire from service contrary to the Standing Orders, then any right in that regard, if available, can be enforced only by raising an industrial dispute and not in the civil suit.

¶244

37 In the case on hand, the case of the plaintiff is that he being an Executive Engineer falling within the definition of “workman” under the Act, 1947, is entitled to remain in service upto 60 years of age and therefore, the defendant could not have made him to retire at the age of 58. To put it in other words, what is complained is the violation of the Standing Orders framed by the defendant company. In such circumstances, the Civil Court could not have adjudicated the suit as it had no jurisdiction. The plaintiff is not complaining of any violation of principles of common law or constitutional provisions or on other grounds. If that would have been so, the Civil Court's jurisdiction may not be held to be barred.

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38 In view of the aforesaid discussion, this Second Appeal deserves to

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be allowed and is hereby allowed. The judgment and decree passed by the Trial Court dated 26^th February 1999 in Special Civil Suit No.47 of 1988 as well as the judgment and order passed by the lower Appellate Court dated 23^rd March 2018 in Regular Civil Appeal No.37 of 1999 are hereby quashed and set aside.

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39 As the Second Appeal has been allowed, the civil application is also disposed of.

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(J.B. PARDIWALA, J.)

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CHANDRESH

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Paschim Gujarat Vij Company Limited through Executive Engineer (O and M) v. Jayeshkumar Kanaksinh Jadeja

Case brief

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Paschim Gujarat Vij Company Limited through Executive Engineer (O and M) v. Jayeshkumar Kanaksinh Jadeja

Case brief

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What did the court decide?

What the court decided

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