High Court
Case Details
CRP 227/2009 BEFORE THE HON’BLE MR. JUSTICE S. TALAPATRA J U D G M E N T AND O R D E R (ORAL) Heard Mr. N. Deka, learned counsel appearing for the petitioners as well as Mr. G. Choudhury, learned counsel appearing for the respondent No. 1. None appears f or the respondent No. 2. [2] By this petition filed under Section 115 of the CPC read with Ar ticle 227 of the Constitution of India, the order dated 08.05.2009 passed by the Munsiff No. 1, Kamrup, Guwahati in Title Suit No. 504 of 2007 is challenged. The suit was instituted by the respondent No. 1 claiming the fol
Legal Reasoning
[3] lowing reliefs: (a) for a declaration that it is obligatory on the part of the defendants to c onsider and favourably dispose of his representations showing his difficulties and grievances and setting aside the transfer by declaring the same to be bad in law. (b) for a permanent injunction restraining the defendants from giving effect to the transfer order dated 09/07/2007 as well as letter dated 1-10-2007 untill th
Decision
e representations are favourably disposed of. For purpose of challenging the validity of the transfer order th [4] e basic ground that has been resorted to in the plaint is available at para 23 w hich runs as under: (cid:28)23. That the plaintiff states that the law of transfer is clear with settled j udicial pronouncements that transfer orders which are apparently innocuous on th e face of it but really intended as a punishment to the delinquent would be bad in law and as such from a harmonization of the facts narrated above, it is appa rent that the plaintiffs transfer is punitive, malicious, arbitrary and hence ca nnot be legally sustained. (cid:29) [5] To support the said contention the plaintiff additionally pleade d that he was entangled in several rounds of litigation with the defendant No. 1 , the petitioner herein and thereafter the said transfer order was issued agains t him as a measure of vengeance. The petitioner as the defendant No. 1 filed the written statement and questioned the maintainability of the suit on two counts. Firstly, the suit is barred under Section 14 of the Specific Relief Act and secondly, the dispute that has been raised in the suit falls in the realm of the industrial dispute and hence the civil Court cannot not adjudicate the matt er. [6] ues were framed by the trial Court which are: Having thus persuaded by the defendant No. 1 two preliminary iss (cid:28)(1) Whether the suit is maintainable in view of the bar created under Section 14 of the Specific Relief Act? (2) Whether the Civil Court has jurisdiction to try the dispute? (cid:29) On appreciation of the rival contentions as well as the record a [7] vailable to the trial court at that time, the trial Court held that: (cid:28)The plaintiff, in the instant case, does not dispute the fact that he is liable to be transferred, but his only case is that the transfer will create difficult ies in sustenance of his family because of his low salary and that is why he has prayed to the defendants for revoking the transfer order. The right to submit a representation does not necessarily mean a right t o get an answer to the representation. Since the defendants have a right to tran sfer the plaintiff they cannot be compelled to consider the representation filed by the plaintiff and that too favourably as prayed for by the plaintiff, unless it is shown that the defendant are bound by any Statutory Rule to consider the representation. So being the case the plaintiff cannot possibly claim that he ha s a legal character or right that this representation be disposed of favourably and consequently non consideration of representation by the defendant cannot amo unt to disputing the legal character of the plaintiff. Therefore, the relief app ears to be barred not under Section 14 of the Specific Relief Act but under Sect ion 34 of the said Act.\ [8] While considering the other preliminary issue of the jurisdictio nal objection whether the Civil Court has got the jurisdiction to try a dispute which falls, according to the defendant No. 1 within the realm of the industrial dispute, the Court however negated that challenge holding that: \If the industrial dispute relates to the enforcement of a right or an obligatio n created under the Act, then the only remedy available to the suitor is to get adjudication under the Act.\ The said observation has apparently been made on considering the decisio n of the Apex Court rendered in The Premier Automobiles Ltd. Vrs. Kamlekar Shant aram Wadke of Bombay and Others, reported in 1976 (1) SCC 496. [9] It has been further held with reference to Rajasthan State Road Transport Corporation and Another Vrs. Krishna Kant and Others, reported in 1995 (5) SCC 75 that: \Industrial Dispute is defined in Section 2(k) to mean any dispute or difference (i) employers and employers; (ii) between employers and workmen; (iii) between workmen and workmen provided such dispute is connected with the employment, no n-employment, terms of employment or conditions of labour of any person. It is w ell settled by several decisions of this court that a dispute between the employ er and an individual workman does not constitute an industrial dispute unless th e cause of the workman is espoused by a body of workmen \Bombay Union of Journa list V. \The Hindu\ (1961 (2) L.L.J. 436(SC). Of course, where the dispute conc erns the body of the workers as a whole or to a section thereof, it is an indus trial dispute. It is precisely for this reason that Section 2-A was inserted by Amendment Act 35 of 1965. It says, \where any employer discharges, dismisses, r etrenches or otherwise terminates, any dispute or difference between that workma n and his employer connected with, or arising out of, such discharge, dismissal , retrenchment or termination shall be deemed to be an industrial dispute notwit hstanding that no other workman nor any union workmen is a party to the dispute. \ By virtue of this provision, the scope of the concept of industrial dispute ha s been widened, which now embraces not only Section 2(k), however, covers only cases of discharge, dismissal, retrenchment or termination otherwise of service of an individual workman and not other matters, which means that -to give an ex ample- if a workman is reduced in rank pursuant to a domestic enquiry, the disp ute raised by him does not become an industrial dispute within the meaning of S ection 2-A. (However, if the union or body of workmen espouses his cause, it doe s become an industrial dispute.) We have given only one instance; there may be m any disputes which would not fall within Section 2(k) or Section 2-A. It is obvi ous that in all such cases, the remedy is only in a Civil Court or by way of arb itration according to law, if the parties so choose. The machinery provided by t he Industrial Dispute Act for resolution of disputes (in short, Section 10 or 12 ) does not apply to such a dispute.\ After excerpting of this observation of the Apex Court in Krishn [10] a Kant(supra) the Court of Munsiff No. 1, Kamrup held further that: \ in the present case the dispute does not appear to be one as industrial dispu te, firstly because it is the individual plaintiff who has challenged the transf er order, and the workmen union, the proforma defendant have not taken up the c ause of the plaintiff against the defendants, secondly the transfer dispute also does not fall within the ambit of section 2A of the Industrial Dispute Act, bec ause for that to happen the dispute should arise out of cases of discharge, dism issal, retrenchment or termination otherwise of services of an individual workma n and not other matters\ Thus, it has been held that the dispute as referred in the suit is not a dispute within the meaning of the industrial dispute to be exclusively tried by an industrial tribunal or a Labour Court. [11] Mr. Deka, learned counsel appearing for the petitioner seriously criticized that finding and stated that the said finding emanates from complete misreading of the provisions of the Industrial Dispute Act. He submitted that t he nature of dispute can be found in paragraph 23 of the plaint. It shows that t he transfer order has been issued mala fide. The Fifth Shedule of the Industria l Dispute Act at Clause 7 provides that: \To transfer a workmen mala fide from one place to another, under the guise of f ollowing management policy.\ It is needless to say the Fifth Schedule has been framed having referenc e to Section 2(ra) of the Industrial Dispute Act which covers the unfair labour practices. As such, Mr. Deka, learned counsel for the petitioner contended that dispute is very much within the meaning of ’industrial dispute’ as defined under Section 2(k) of the Industrial Dispute Act, 1947. Therefore, the finding as ret urned by the Munsiff No. 1, Kamrup that the suit is maintainable in a civil Cour t is not sustainable in law. [12] He further submitted that the ratio of the Krishna Kant(supra) h as been misconceived by the Munsiff No. 1, Kamrup while passing the impugned ord er. [13] While responding to the submission of Mr. N. Deka, learned couns el appearing for the petitioner, Mr. G. Choudhury, learned counsel appearing for the respondent No. 1 (the plaintiff in the suit) submitted that to some extent he is prevented from making any submission on the finding returned by the Civil Court on the issue No. 1, as excerpted, in as much the finding has not been chal lenged by the plaintiff. However, he submitted that the other question which had fallen for adjudication to the civil court is required to be considered in the perspective as laid in the pleadings. Even the defendant No. 1 refused to examin e the dislocation and strigencies of the workman which he would inscrutably face if the transfer order is executed. However, that aspect of the matter has been taken care of by the impugned order and admittedly the said order has not been q uestioned in any manner by the respondent No. 1 (the plaintiff). Therefore, the respondent No. 1 cannot be allowed to make submission on that part of the order. Mr. Choudhury also contended that when the issue No. 3 (not in the preliminary issues) as framed by the trial Court to examine whether the transfer order is i llegal or unsustainable in law it cannot be said that dispute falls within the ambit of Section 2(k) of the Industrial Dispute Act. It would require further sc rutiny to the extent that whether the impugned order has infringed any right of the plaintiff as enshrined in Article 14 of the Constitution being arbitrary and vengeful. Thus it is not only the unfair labour practice but beyond it. In supp ort of his contention Mr. Choudhury, learned counsel relied on a decision of the Apex Court in Rajasthan S. R. T. C. and Ors. Vrs. Mohar Singh, reported in AIR 2008 SC 2553 where the Apex Court held as under: \10. Section 9 of the Code of Civil Procedure provides that all Civil Courts sh all have jurisdiction to try all suits of a civil nature excepting suits of whic h their cognizance is either expressly or impliedly barred. The jurisdiction of the Civil Court apparently is not expressly barred by the pr ovisions of Industrial Disputes Act, 1947. The question which arises for our con sideration would be as to whether the same is barred by necessary implication. 11. Civil Court may have a limited jurisdiction in service matters but it ca nnot be said to have no jurisdiction at all to entertain a suit. It may not be 3 entitled to sit in appeal over the order passed in to disciplinary proceedings o r on the quantum of punishment imposed. It may not in a given case direct reinst atement in service having regard to Section 14(1)(b) of the Specific Relief Act 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 n ewe right for the first time and when a firm has also been created for enforcing the said right, the Civil Court shall also have jurisdiction to entertain a suit when t he plaintiff claim benefit of a fundamental right as adumbrated under Article 14 of the Constitution of India or mandatory provisions of statute of statutory ru les governing the terms and conditions of service. 12. Under the industrial law, and in particular the 1947 Act, the authoritie s specified therein including the Appropriate Governments and the Industrial Cou rts have various functions to perform. Terms and conditions can be laid down the reunder. Violation of the terms and conditions of service at the hands of the em ployer is also justiciable. Safeguards have been provided under the Act to see t hat services of workmen are not unjustly terminated. The 1947 Act provides for a wider definition of ’termination of service’. Conditions precedent for termina tion of service have been provided for thereunder.\ [14] Mr. Choudhury, learned counsel appearing for the respondent No. 1 contended having reference to Mohar Singh(supra) that the civil Court shall al so have jurisdiction to entertain a suit where the plaintiff claims benefit of a fundamental right as adumbrated under Article 14 of the Constitution. Mr. Choud hury submitted again and again that whether the action was entirely arbitrary or not that is also a related issue for deciding the Issue No. 3. [15] Mr. Choudhury, learned counsel appearing for the respondent No. 1 further relied on a decision in Telecom District Manager and Others Vrs. Kesha b Deb, reported in (2008) 8 SCC 402 where the Apex Court held that: \In a case of the present nature where an employee maintains a writ petition not only on the ground of violation of the equality clause enshrined under Article 14 of the Constitution of India but also on the ground of violation of the provi sions of the Industrial Disputes Act, 1947, he has an option to choose his own f orum. Section 28 of the Administrative Tribunals Act, 1985 does not bar the juri sdiction of the Central Administrative Tribunal. It saves the jurisdiction of th e Industrial Tribunal. An employee who claims himself to be a workman, therefore , will have a right of election in the matter of choice of forum. It is, therefo re, not correct to contended that the Central Administrative Tribunal had no jur isdiction to pass the impugned judgment.\ [16] In addition to those decisions, Mr. Choudhury relied on another decision of the Apex Court in Rajasthan State Road Transport Corporation and Ano ther Vrs. Bal Mukund Bairwa(2), reported in (2009) 4 SCC 299 where the Apex Cour t held as under: \9. f Civil Procedure which reads as under: The jurisdiction of a civil court is governed by Section 9 of the Code o \9. Courts to try all civil suits unless barred.- The Courts shall (subject to t he provisions herein contained) have jurisdiction to try all suits of a civil n ature excepting suits of which their cognizance is either expressly or impliedly barred.\ The jurisdiction of the civil court in terms of the aforementioned provision is a plenary one. The provision relating to bar to entertain a suit must, therefore , be laid down by a statute either expressly or by necessary implication. 10. An employee charged with grave acts of misconduct must be held to be ent itled to a fair hearing in the departmental proceedings. The common law principl es of natural justice must also be complied with. Rules laid down in the statuto ry rules indisputably should be followed. 11. 713) this Court held: In Narinder Mohan Arya Av. United India Insurance Co. Ltd.((2006) 4 SCC \26. In our opinion the learned Single Judge and consequently the Division Benc h of the High court did not pose unto themselves the correct question. The matte r can be viewed from two angles. Despite limited jurisdiction a civil court, it was entitled to interfere in a case where the report of the enquiry officer is b ased on no evidence. In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it, it should keep in mind the following: (1) The enquiry officer is not permitted to collect any material from outside sourc es during the conduct of the enqui9ry. (see State of Assam V. Mahendra Kumar D as ((1970) 1 SCC 709) (2) In a domestic enquiry fairness in the procedure is a part of the principles of nature justice (see Khem Chand V. Union of India (AIR 1958 SC 300) (3) Exercise of disciplinary power involves two elements - (i) ob jective, and (ii) subjective and existence of the exercise of an objective eleme nt is a conditions precedent for exercise of the subjective element. (See K.L. T ripathi v. SBI ((1984) 1 SCC 43) (4) It is not possible to lay down any rigid rules of the principles of natural justice which depend on the facts and circums tances of each case but the concept of fair play in action is the basis. (See Sa wai Singh V. State of Rajasthan ((1986) 3 SCC 454) (5) The enquiry officer is no t permitted to travel beyond the charges and any punishment imposed on the basi s of a finding which was not the subject-matter of the charges is wholly illegal . (See Export Inspection Council of India v. Kalyan Kumar Mitra ((1987) 2 Cal L. J 344) (6) Suspicion or presumption cannot taken the place of proof even in a d omestic enquiry. The writ court is entitled to interfere with the findings of th e fact of any tribunal or authority in certain circumstances. (See Central Bank of India Ltd. v. Prakash chand Jain (AIR 1969 SC 983), Kuldeep Singh V. Commr. O f Police((1999) 2 SCC 10).\ 12. Section 9 of the Code is in enforcement of the fundamental principles of law laid down in the maxim ubi jus ibi remedium. A litigant, thus having a grie vance of a civil nature has a right to institute a civil suit in a competent civ il court unless its cognizance is either expressly or impliedly barred by any st atute. Ex facie, in terms of Section 9 of the Code, civil courts can try all sui ts, unless bared by the statute, either expressly or by necessary implications.\ [17] On consideration of the rival contentions, this Court finds that the submission as made for the respondent No. 1 can hardly be sustained in view of the decision in Mohar Singh(supra) wherein the Supreme Court has in no uncer tain terms held that: \**** it is 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 f or 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 1 4 of the Constitution of India or mandatory provisions of statute or statutory r ules governing the terms and conditions of service.\ (emphasis added). [18] The exclusion as emphasized is inalienable part of the principle as laid by the Apex Court. As such, in no other way the said principle can be u nderstood or applied. Similarly in Bal Mukund Bairwa(2)(supra) the Apex Court he ld that a litigant got a right to adumbrate his grievance by instituting a civil suit in a civil court of the competent jurisdiction unless its cognizance eithe r expressly or by implications is barred by any statute. Since the dispute is admittedly not covered Section 2(A) of the [19] Industrial Dispute Act but it falls within the ambit of the industrial dispute a s defined by section 2(K). Unless the dispute is espoused by the union of the wo rkmen or the body of workmen, the individual workman has got no locus to institu te such action in a civil Court. [20] In view of this matter, this Court is inclined to accept the con tention as advanced by Mr. Deka, learned counsel appearing for the petitioner. T he dispute involved in the suit cannot be adjudicated by a civil Court. Thus, th e impugned order is interfered with and set aside. As corollary, it has to be h eld that the suit is not maintainable in the civil court. Accordingly, the suit being Title Suit No. 504 of 2007 pending in the Court of the Munsiff No. 1 is di smissed as not maintainable. [21] It is expected of the employer that, if any representation is su bmitted by the plaintiff as regards his transfer, they would extend due consider ation. Accordingly, this petition stands allowed. [22] Send down the LCRs forthwith.