ivil Appeal No 1750 of 1974
642 From the Judgment and Order dated 7374 of the Gauhati High Court in CR No 96 of 1973
AR Barthakur JD Jainand Mrs Kawaljit Kocher for the Appellant
PH Parekh Ms Geetanjali Mathrari Shishir Sharma for the Respondents
The Judgment of the Court was delivered by OZA J
This appeal on leave has been filed against the judgment of the Gauhati High Court delivered in Civil Revi sion No 96 of 1973 decided on March 7 1974
The short question that arises in this appeal is in respect of the jurisdiction of the civil court to entertain a suit that was filed against the respondent defendant
The appellant plain tiff was an employee of Ms Empire of India and Ceylone Tea CO
Pvt Ltd Calcutta
The Manager of the COmpany who wag defendant No 2 on 16101971 served a notice on the appel lant plaintiff asking him to explain certain charges of misconduct
In the course of domestic enquiry held by the management the appellant plaintiff was ultimately dismissed from service on 28th November 1971
According to the appel lant plaintiff the order of dismissal is contrary to provi sions of the Standing Orders framed under Industrial Employ ment Standing Orders Act 1946 and on this ground he sought the relief of declaration that the dismissal is null and void and inoperative as he was not guilty of any miscon duct as no enquiry was conducted the dismissal was bad in accordance with the Standing Orders
He also sought the relief of back wages and injunction not to give effect to the order of dismissal
This suit was filed by the appellant plaintiff before the Court of Munsiff
The defendant re spondent in their written statement raised the plea that the suit is not maintainable as the relief which is sought is available to the appellant plaintiff under Section 2A of the 
It was also pleaded that the suit is not maintainable under Section 141b of the Specific Relief Act and that the Civil Court has no juris diction to entertain the suit
The trial Court on the basis of these pleadings framed two preliminary issues which were i Whether the suit is maintainable in the present form ii Whether this Court has jurisdiction to try the suit The trial court came to the conclusion that the Civil Court has the 643 jurisdiction to try the suit and the suit is not barred because of Section 141b of the Specific Relief Act
Against this order of the trial court a revision petition was taken to the High Court and by the impugned judgment the High Court held that the nature of relief which was sought by the appellant plaintiff was such which could only be granted under the and therefore the civil court had no jurisdiction to try the suit
Learned counsel for the appellant on the basis of lan guage of Section 9 of the Code of Civil Procedure contended that the civil court will have jurisdiction to try all kind of suits except those which are either expressly or implied ly barred and on this basis it was contended that there is no express bar on the jurisdiction of the Civil Court and the High Court was not right in reaching the conclusion that it was impliedly barred whereas learned counsel for the respondent contended that the relief which was sought by the appellant plaintiff in substance was the relief of rein statement with back wages which relief is not the right of the appellant plaintiff under the contract or under the civil law
This right is only conferred on him because of the and the relief which is avail able only in the 
The Act itself provides the procedure and remedy and it is not open to the appellant to approach the Civil Court for getting the relief which he could only get under the scheme of the procedure of conciliation reference to the labour court and ultimately decision of the labour court
It was in the scheme of the itself that the enforcement of the Standing Orders could be made and an order which is not in accordance with the Standing Orders could be set aside and the relief as was claimed by the appellant plaintiff could be granted
It is in this view that the jurisdiction of the civil court is impliedly barred
Learned counsel placed reliance on the decision of this Court in Bombay Union of Journalists  Ors
vs The State of Bombay  Anr  Section 9 of the Code of Civil Procedure reads Courts to try all civil suits unless barred The Courts shall subject to the provisions herein contained have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred
Explanation 1 A suit in which the right to property or to an office is contested is a suit of a civil nature notwithstanding that such right may depend entirely on the 644 decision of questions as to religious rites or ceremonies
Explanation II For the purposes of this Section it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place
 It is clear that wherever the jurisdiction of the civil court is expressly or impliedly barred the civil court will have no jurisdiction
It could not be disputed that a con tract of employment for personal service could not be spe cifically enforced and it is also clear that except the industrial law under the law of contract and the civil law an employee whose services are terminated could not seek the relief of reinstatement or backwages At best he could seek the relief of damages for breach of contract
The manner in which the relief has been framed by the appellant plaintiff in this case although he seeks a declaration and injunction but in substance it is nothing but the relief of reinstate ment and backwages
The relief which could only be available to a workman under the 
It is not disputed before us that the Industrial Dis putes Act was applicable to the present case and it is also not disputed that the Industrial Employment Standing Or ders Act was also applicable
It is also not in dispute that the enquiry for misconduct was conducted against the appellant in accordance with the Standing Orders and the main plea which was raised by the appellant plaintiff was that the enquiry was not strictly in accordance with the Standing Orders
It is in this context that the learned Judge of the High Court came to the conclusion that the civil court will have no jurisdiction to try the present suit
Learned counsel appearing for the appellant plaintiff mainly contended that in the scheme of the Industrial Dis putes Act the starting point for an industrial dispute is the conciliation proceedings and if the conciliation pro ceedings fail then the conciliation officer is expected to submit his report to the Govt
as contemplated under Section 12 and thereafter it is the discretion of the Govt to make a reference to the labour court
He frankly conceded that if a reference is made then the labour court will have juris diction to determine the dispute as was raised by the appel lant before the civil court but according to the learned counsel as firstly it is the discretion of the conciliation officer to proceed with the conciliation proceedings and even after the report of the conciliation officer it is the discretion of 645 the State Govt
to make a reference or not
Thus it could not be said that there is a remedy available to the appel lant under the scheme of the and thus the jurisdiction of the civil court could not be barred by implication
Learned counsel placed reliance on the decision in Calcutta Electric Supply Corporation Ltd and another vs Ramratan Mahato AIR 1973 Calcutta 258
Learned counsel for the appellant also contended that the decision in Dhulabhai etc
vs State of Madhya Pradesh and another  also helps him to some extent
On the other hand the learned counsel for the respondent contended that in view of decision in Bombay Union of Journalists case the discretion of the Govt
to make a reference or not is not arbitrary and in appropriate cases if the Govt
chooses not to make a reference a direction could be issued under Article 226 by the High Courts
It was contended that after this decision of this Court the contention that remedy under the is merely discretionary is not at all available to the appellant
Learned counsel also placed reliance on the Dhulabhai s case and Nanoo Asan Madhavan vs State of Kerala and others 1970 Vol
I LLJ Kerala 272
It is not in dispute that the dispute which was raised by the appellant plaintiff fell within the ambit of the definition of industrial dispute  as defined in Section 2k of the 
It is also no in dis pute that the dispute can be taken up by conciliation offi cer under Section 12
Section 12 of the provides that when the conciliation officer fails he has to make a report as provided in sub clause 4 of Section 12
Section 12 reads Duties 01  Conciliation Officers 1 Where any industrial dispute exists or is apprehend ed the conciliation officer may or where the dispute relates to a public utility service and a notice under Section 22 has been given shall hold conciliation proceedings in the prescribed manner
2 The conciliation officer shall for the purpose of bringing about a settlement of the dispute without delay investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute
3 If a settlement of the dispute or any of the matters in dispute is arrived at in the course of the conciliation proceedings the conciliation officer shall send 646 a report thereof to the appropriate Government or an officer authorised in this behalf by the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute
4 If no such settlement is arrived at the conciliation officer shall as soon as practicable after the close of the investiga tion send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circum stances relating to the dispute and for bring ing about a settlement thereof together with a full statement of such facts and circum stances and the reasons on account of which in his opinion a settlement could not be arrived at
5 If on a consideration 1 of the report referred to in sub section 4 the appropriate Government is satisfied that there is a case for reference to a Board Labour Court Tribunal or National Tribunal it may make such reference
Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefore
6 A report under this Section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government
Provided that subject to the approv al of the conciliation officer the time for the submission of the report may be extended by such period as may be agreed upon m writing by all the parties to the dispute
 Sub clause 5 provides for making a reference by the State Govt
to a labour court or an appropriate Tribunal
In Bombay Union of Journalists case it has been held that the discretion of the Government is a discretion which has been exercised not arbitrarily and therefore it could not be said that the reference to the labour court or tribunal is not available to a worker who raises in industrial dispute
It was observed
This argument must be rejected because when the appropriate Government considers the question as to 647 whether a reference should be made under section 125 it has to act under section 101 of the Act and section 101 confers discretion on the appro priate Government either to refer the dispute or not to refer it for industrial adjudica tion according as it is of the opinion that it is expedient to do so or not
In other words in dealing with an industrial dispute in respect of which a failure report has been submitted under section 124 the appropriate Government ultimately exercises its power under section 101 subject to this that section 125 imposes an obligation on it to record reasons for not making the reference when the dispute has gone through conciliation and a failure report has been made under section 124
This question has been considered by this Court in the case of the State of Bombay vs KP Krish nan  Others The decision in that case clearly shows that when the appropriate Government considers the question as to whether any industrial dispute should be referred for adjudication or not it may consider prima facie the merits of the dispute and take into account other relevant considerations which would help it to decide whether making a reference would be expedient or not
It is true that if the dispute in question raise questions of law the appropri ate Government should not purport to reach a final decision on the said questions of law because that would normally lie within the jurisdiction of the Industrial Tribunal
Similarly on disputed questions of fact the appropriate Government cannot purport to reach final conclusions for that again would be the province of the Industrial Tribunal
But it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under section 101 read with section 125 or not
If the claim made is patently frivo lous or is clearly belated the appropriate Government may refuse to make a reference
Likewise if the impact of the claim on the general relations between the employer and the employees in the region is likely to be ad verse the appropriate Government may take that into account in deciding whether a refer ence should be made or not
It must therefore be held that a prima facie examination of the merits cannot be said to be foreign to the enquiry which the appropriate Government is entitled to make in dealing with a dispute under section 101 and so the argument that the 648 appropriate Government exceeded its jurisdic tion in expressing its prima facie view on the nature of the termination of service of appel lants 2 and 3 cannot be accepted
 It is therefore clear that that in view of language of Section 10 read with Section 125 as has been held by this Court an adequate remedy is available to the appellant plaintiff under the scheme of the itself which is the Act which provides for the relief of reinstatement and back wages which in fact the appellant sought before the civil court by filing a suit
Section 10 of the reads Reference of disputes to Boards Courts or Tribunals 1 Where the appropriate Govern ment is of the opinion that any industrial dispute exists or is apprehended it may at any time by order in writing a refer the dispute to a Board for promoting a settlement thereof or b refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry or c refer the dispute or any matter appearing to be connected with or relevant to the dispute if it relates to any matter specified in the Second Schedule to a Labour Court for adjudication or d refer the dispute or any matter appearing to be connected with or relevant to the dispute whether it relates to any matter specified in the Second Schedule or the Third Schedule to a Tribunal for adjudica tion Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen the appropriate Gov ernment may if it so thinks fit make the reference to a Labour Court under clause c Provided further that where the dispute relates to a public utility service and a notice under Section 22 has been given the appropriate Government shall unless it con 649 siders that the notice has been frivolously or vexatiously given or that it would be inexpe dient so to do make a reference under this sub section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced Provided also that where the dispute in relation to which the Central Government is the appropriate Government it shall be compe tent for that Government to refer the dispute to a Labour Court or an Industrial Tribunal as the case may be constituted by the State Government
 It is therefore clear that this Act ie not only confers the right on a worker for reinstatement and backwages if the order of termination or dismissal is not in accordance with the Standing Orders but also provides a detailed procedure and machinery for getting this relief
Under these circumstances therefore there is an apparent implied exclusion of the jurisdiction of the civil court
In Dhulabhai s case a five Judges Bench of this Court consid ered the language of Section 9 and the scope thereof in respect of exclusion of jurisdiction and it was observed 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 in quiry may be decisive
In the latter 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 deter mined by the tribunals so constituted and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not
 It is therefore clear that the scheme of the clearly excludes the jurisdiction of the civil court by implication in respect of remedies which are avail able under this Act and for which a complete procedure and machinery has been provided in this Act
Under these circumstances therefore so far as the present suit filed by the appellant plaintiff is concerned there appears to be no doubt that civil court had no juris diction and the High Court was fight in coming to the con clusion
The appeal is therefore dismissed but as it is an appeal filed by an employee who lost his employment long ago parties are directed to bear their own costs
RSS Appeal dis missed


Summary:
Section 131a of the West Bengal Premises Tenancy Act 1956 provides for recovery of possession where the tenant or any person residing in the premises let to the tenant without the previous consent in writing of the land lord transfers assigns or subsets in whole or in part the premises held by him
Section 14 forbids the tenant from sub letting the premises without the previous consent in writing of the landlord
Sub section 1 of section 16 requires the tenant and every sub tenant to whom the premises are sublet to give notice to the landlord of the creation of the sub tenancy within one month from the date of such sub letting and also to notify the termination of such sub tenancy within one month of such termination
Sub section 2 prescribes such a notice in respect of sub tenancies created with or without the consent of the landlord before the commencement of the Act within the time specified therein
Where there is no such consent in writing from the landlord sub section 3 provides for cessation of tenant s interest in the portion sub let and the sub tenant becoming a tenant directly under the landlord in certain circum stances
Clause 6 of the lease deed creating tenancy for a period of three years from 1st May 1948 permitted the respondent tenant to sublet any portion of the demised premises which was left unused or surplus
After expiry of the lease period in 1951 the said tenant continued in possession and by holding over became a month to month tenant
It had howev er created certain sub tenancies within the period covered by the lease and before the Act came into force
A suit for its eviction brought by the landlord in 1960 was dismissed by the trial court
The landlord filed a fresh suit in 1972 on the Found that the tenant had created subtenancies in the premises after the dismissal of the earlier suit
The tenant advanced the plea of res judicata and con 632 633 tended that it was and is entitled to grant sub tenancies under cl 6 of the lease deed which continues to bind the parties
Rejecting the case of res judicata the trial court held that a number of sub tenants who were in possession of the premises at the time of the earlier suit had been sub stituted later by another set of sub tenants after the coming into force of the Act and that the entire premises was let out to sub tenants which was not consistent with the terms of the permission as mentioned in cl 6
Allowing the appeal the High Court however held that the suit was barred by the rule of res judicata
In this appeal by special leave it was contended for the appellants that since a large portion of the disputed property was sublet to fresh sub tenants after the institu tion of the earlier suit of 1960 there was no scope for applying the doctrine of res judicata and that the consent contemplated by the 1956 Act has to be specific in regard to each sublease which requirement was not satisfied by the general permission granted by cl 6 of the lease deed
Allowing the appeal HELD 1
In the earlier suit all the sub lessees were inducted during the period the lease was operative ie much before the Tenancy Act was passed
The question of violation of the provisions of the said Act therefore did not arise there
The earlier judgment cannot thus operate by way of res judicata
637A 21 The provisions of section 16 of the Act clearly indicate that permission to the tenant to sub let in general terms cannot be deemed to be consent for the purposes of sections 13 and 14
637F 22
The Act contemplates that while one sub tenant may be evicted another may continue in the premises as a tenant directly under the landlord depending on the circumstances
Therefore previous consent in writing of the landlord with respect to each sub letting separately is essential
Since in the instant case consent of the appellant landlord was not obtained specifically for each of the sub tenancies the respondent tenant must be held to have violated section 14
The appellants are thus entitled to succeed under section 131a
638F H Ms Shalimar Tar Products Ltd vs HC Sharma  Ors   referred to
It was not the case of the respondent that any of the sub 634 tenants had sent any notice to the landlord as prescribed by the Act
Therefore the eviction suit cannot fail on the ground of non impleading of the sub tenants
However the sub tenants cannot be bound by that finding in the suit
They will be entitled to be heard if and when the landlord seeks their eviction
639B