JUDGMENT [ENTITY], J.
1.This is an application under [SECTION] of the [ACT] for quashing of the [CASE NUMBER] pending before the Learned Judge, 7th Bench, City Civil Court, Calcutta filed by the opposite parties and also for setting aside the Order No. 3 dated July 17, 1995. The relevant facts leading to the present application are as follows :
2. The opposite parties as the plaintiffs instituted the [CASE NUMBER] in the VII Court of Judge, City Civil Court, for declaration and for permanent injunction and inter alia, moved for ad-interim injunction against the applicant restraining it for giving effect to and/ or further effect to their scheme and/or proposal for transferring the employees to any places where there is no registered office and restraining it from interferring with the existing service conditions of the employees of the applicant Company M/s. Hindusthan Lever Ltd. There was unusual slump in the business of the opposite party No. 1, Tata Oil Mills Company Ltd. (In brief TOMCO) since 1990-91. In the subsequent year TOMCO incurred loss of about Rs. 13 crores. During next 6 (six) months the loss increased to over Rs. 16 crores. Therefore, the Board of Directors of TOMCO decided various alternatives including its association with [ENTITY] Accordingly, the Board of Directors TOMCO put up a proposal before the Board of Directors of [ENTITY] and the Directors of both the Companies at their separate meeting accepted the recommendation and approved the scheme of amalgamation.
3. The scheme, inter alia, provided for transfer and vesting in Hindustan Lever Ltd, of the undertaking and the business together with the assets and liabilities excluding certain premises. Subsequently, the employees of Hindustan Lever challenged the scheme of amalgamation and ultimately the matter went up to the Hon'ble Supreme Court and the Apex Court by its judgement dated October 24, 1994 dismissed the appeals of the union. While dismissing the appeals the Apex Court held that the [SECTION] and [SECTION] safeguarding the terms and conditions of the transferor employees shall prevail. In the said judgement, it is further highlighted that the service conditions of the employees of [ENTITY] shall be applicable to the erstwhile employees of TOMCO. It is the applicant's stand that due to exigency of work, it deployed some of its employees to different stations assigning specific work. The employees having been aggrieved by such order filed a suit before the 7th Court of Judge. City Civil Court for the following reliefs.
"a) Declaration that the order of transfer of the employees to clearing and forwarding agent's godown or to any other place where the company's registered office is not existing is illegal, malafide and not binding upon the employees;
b) For permanent injunction restraining the defendants from giving effect and /or further effect to their scheme and /or proposal for transferring the employees of defendant No. 1 to any other place ;
c) Permanent injunction restraining the defendants from interfering with the existing service conditions of the employees of defendant No. 1;
d) Cost of the suit;
4. The opposite parties had further filed an application praying for interim injunction. The learned Trial Court had been pleased to pass an order directing the applicants to maintain status quo as to the service of the opposite party till the disposal of the injunction petition. The applicant having been agrieved by the said order has complained before this court by filing the instant application.
5. Mr. [ENTITY], the learned counsel appearing for the petitioners, M/s. [ENTITY] has advanced a formidable plea against the opposite parties regarding ouster of jurisdiction of the Civil Court to try this issue. At the outset he indicated that the dispute not being cognizable before the Civil Court and the respondent / opposite party instead of filing dispute before the Industrial Tribunal had wrongly approached the Civil Court by filing this suit challenging the order of transfer. From his further contention it appears that the suit having been filed by the office bearers of the union challenging the action of the management regarding the transfer of the workmen such dispute could have been cognizable only in the Industrial Tribunal.
6. Mr. [ENTITY], the learned counsel appearing for the opposite parties, has raised an interesting plea that the applicant [ENTITY] without filing written statement or written objection to the injunction application in the trial Court could not have challenged about the maintainability of the suit. It is further contended that since the jurisdictional issue could only be considered by the Lower Court, from which an appeal could lie, such contention should not be entertained before this Court particularly in the application under [SECTION] of the [ACT].
7. The management of erstwhile TOMCO had vested in the [ENTITY] after the scheme of amalgamation was accepted. The said scheme was challenged by the Hindustan Lever Employees' Union even before the Apex Court but the said scheme was upheld and the employees of TOMCO were ordered to continue on the same terms and conditions as before. For this it cannot be said that prejudice had been caused to Hindustan Lever Ltd Employees. As per the said scheme, the employees of erstwhile TOMCO were to continue with the same terms and conditions as before. TOMCO had set out certain service Rules regarding its employees. Provision of [SECTION] is quoted hereunder :
"11. Employees shall be liable to be transferred to any other department, establishment or factory of the Company, wherever situated and shall also be liable to be transferred from one department to another or from one job to another."
8. It envisages that the employees working under TOMCO shall be liable to be transferred to any other department, establishment or factory of the Company, wherever situated, and shall also be liable to be transferred from one department to another or from one job to another. The management has deployed some of the employees to different stations assigning particular job to them. From the facts embodied in the application it is highlighted that the management has never meant transfer of any employee to the outlying stations but simply directed them for performance of a specific job.
The opposite parties through their Union filed the suit in [CASE NUMBER] where it is indicated that some of the employees had been illegally transferred with a malafide motive. Therefore, the Employees Union have filed the suit for declaration that the order of transfer of the employees to clearing and forwarding agenfs godown or to any other place where the Company's registered office is not existing is illegal, malafide and not binding on the employees.
9. Mr. [ENTITY] strongly contended that this is a suit broadly by the Employees' Union challenging the orders of transfer by management. It is however, indicated that such matter squarely comes within the definition of [SECTION] of the [ACT] which defines as follows :
"Industrial Dispute means any dispute or difference between employers and employers or between employers and workmen and between workmen and workmen provided such dispute is connected with the employment or non-employment, terms of employment or with the conditions of labour of any person."
10. In this connection a decision of the Apex Court reported in [PRECEDENT] in the case of The [PRECEDENT] can be relied on. It is held as follows at pp 741-742 :
"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] or [SECTION], of the [ACT].
2. Where, however, the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the [ACT], the only remedy is to approach the forums created by the said Act.
3. Similarly, where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactments like [ACT] - which can be called "sister enactments" to [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 [ACT] within the meaning of [SECTION] and [SECTION] of [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 [ACT]. Otherwise, recourse to Civil Court is open.
4. It is not correct to say that the remedies provided by the [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.
5. Consistent with the policy of law aforesaid, the Supreme Court thought it fit to 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] of the [ACT]. This would go a long way in removing the misgivings with respect to the effectiveness of the remedies provided by the [ACT].
6. The Certified Standing Orders framed under and in accordance with [ACT] are statu-torily imposed conditions of service and are binding both upon the employer 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 [ACT] or the Civil Court where recourse to Civil Court is open according to the principles indicated above.
7. The policy of law emerging from [ACT] and its sister enactment is to provide an alternative dispute resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and un-encumbered by the plethroa of procedural laws and appeals upon appeals and provisions applicable to Civil Courts. Indeed , the powers of the Courts and Tribunals under the [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."
11. The Apex Court in the case of [PRECEDENT] held that where the dispute concerns the body of the workers as a whole or to Section thereof, it is an industrial dispute. It is precisely for this reason that [SECTION] was inserted by [ACT]. In the instant case undoubtably, the Employees' Union had filed the suit vindicating their right against the management. Therefore, in the light of the above decision no other inference could be drawn than that the present dispute raises an "Industrial Dispute" as envisaged under [SECTION] of the [ACT]. The case of the respondents is that the action of the management is in contravention of the scheme of amalgamation which was approved by the Supreme Court. While carefully considering the contention raised by the respondent who challenged only the order of transfer passed by the applicant would only raise a reasonable inferance that it is an industrial dispute. In this connection, Dr. [ENTITY] has filed a decision reported in [CASE NUMBER] in the case of [PRECEDENT] In the decision cited (supra) the transferred employees filed a suit challenging their transfers as malafide and not for any administrative reasons. They also filed interlocutory applications for ad interim injunction restraining employers from giving effect to transfer. It was held that the dispute so raised comes within the purview of the [ACT]. The employees are not entitled to invoke the jurisdiction of the Civil Court under [SECTION] and [SECTION], [SECTION]. In the aforesaid decision, it has been held as follows :
"The [ACT] has created a forum for enforcing the statutory right in the matter of transfer as defined in [SECTION] of the Act. [SECTION] deals with Industrial Tribunals. The matters that can be dealt with by Industrial Tribunals are enumerated in Third Schedule and the matters that can be dealt with by a Labour Court are enumerated in the [SECTION] which (sic.) deals with all matters other than those specified in the Third Schedule. In that view of the matter, disputes that arise as a result of malafide transfer squarely fall under the [SECTION], and in fact, the petitioners have initiated proceedings as an industrial dispute. However, the Government declined to refer the matter. The petitioners , have once again applied to the Government for review of their decision. In these circumstances, even if the facts of this case give a right to election to the petitioners, the petitioners having elected to get redress of their grievance by initiating proceedings under the provisions of the [ACT], they are not entitled to invoke the jurisdiction of the Civil Court."
12. An identical question cropped-up for consideration in the case of [PRECEDENT] before Himachal Pradesh High Court reported in [PRECEDENT]. It is held that the Civil Court not being competent to grant injunction as the matter lay within the jurisdiction of the Labour Court and therefore, the prayer could not be granted. In [PRECEDENT], in the case of [PRECEDENT], similar question had been answered and it was held that such issues being cognizible before the Industrial Tribunal, those could not be decided by the Civil Court and therefore the Court declined to grant the interim order of injunction. In this case, on perusal of the plaint, it shows that only ground on which the order of transfer is challenged is on account of malafide act, victimisation and punishment. Therefore, in such situation, it can safely be concluded that the dispute raised by the respondent / opposite party being an "Industrial Dispute" the Civil Court has no jurisdiction to entertain the suit for the challenge made by the respondents relating to their transfer. Similar question had also arisen in the reported decision in [PRECEDENT] in the case of [PRECEDENT] it was held that the question of transfer comes within the scope of [SECTION]T in [SECTION] of the [ACT] which contains a prohibition against Unfair Labour Practice. It is mentioned hereinafter.
"25T prohibition of unfair labour practice -employer of workmen or a Trade Union, whether registered under [ACT] or not, shall not commit any unfair labour practice.
To transfer a workman malafide from one place to another, under the guise of following management policy."
13. Therefore, considering the scope and ambit of the respondent/opposite party claim in the Trial Court it can very well raise an issue regarding the challenge of transfer on the ground of administrative exigency which raised an Industrial Dispute conginzable under the Act.
14. Mr. [ENTITY], the learned counsel appearing for the respondent/opposite party took an inexorable plea that such plea is one of jurisdiction which could very well be taken by the applicant in the Trial Court. It is further contended that from the impugned order no error apparent on the face of the record could be made out by the applicant. This Court should scarcely entertain such prayer. He has cited a long catena of decisions. In [PRECEDENT] in the case of [PRECEDENT] facts are quite distinguishable from the present case. In the decision cited supra the moot question was regarding alternative remedy by way of 'appeal'. The main thrust of the argument of Dr. [ENTITY] is that since the fundamental question of Civil Court's jurisdiction is in dispute, such question be only considered by filing an application under [SECTION] of the [ACT] and in that event, the plea of availability of the alternative remedy is no bar.
15. Dr. [ENTITY], learned Advocate appearing for the petitioner, has placed utmost reliance on a decision ([PRECEDENT].) it is held :
"2A. The question is whether a civil suit is maintainable and whether ad-interim injunction could be issued where proceedings under the [ACT] was taken pursuant to the notice issued under [SECTION] of the Act and delivered to the beneficiary. The provisions of the Act are designed to acquire the land by the State exercising the power of eminent domain to serve the public purpose. The State is enjoined to comply with statutory requirements contained in [SECTION] and [SECTION] of the Act by proper publication of notification and declaration with limitation and procedural steps of publication in papers and the local publications envisaged under the Act as amended by [ACT]. In publication of the notifications and declaration under [SECTION], the public purpose gets crystallised and becomes conclusive. Thereafter, the State is entitled to authorise the Land Acquisition Officer to proceed with the acquisition of the land and to make the award. [SECTION], now prescribes limitation to make the award within 2 years from the last date of publication envisaged under [SECTION] of the Act. In an appropriate case, where the Government needs possession of the land urgently, it would exercise the power under [SECTION] of the Act and dispense with the enquiry under [SECTION] Thereon, the State is entitled to issue notice to the parties under [SECTION] and on expiry of 15 days, the State is entitled to take immediate possession even before the award could be made. Otherwise, it would take possession after the award under [SECTION]. Thus, it could be seen that the Act is a complete code in itself and is meant to serve public purpose. We are, therefore, inclined to think, as presently advised, that by necessary implication the power of the civil Court to take cognizance of the case civil Court has no jurisdiction to go into the question of the validity or legality of the notification under [SECTION], and declaration under [SECTION] except by the High Court in a proceeding under [SECTION] of the [ACT]. So, the civil suit itself was not maintainable. When such is the situation, the finding of the trial Court that there is a prima facie triable issue is unsustainable. Moreover, possession was already taken and handed over to Housing Board. So, the order of injunction was without jurisdiction."
16. In support of his contention he had cited a decision reported in 1990. I.L.L.N. page 119 para 7 :
"Further, it has also been held that whenever any such order is passed when the Court itself had held that it has no jurisdiction to try the matter in question, this Court sitting in revision can even suo motu revise it under [SECTION]), [ACT]. In this connection, the following passage in the decision in [PRECEDENT] , may be usefully seen :
"In any case, the High Court, in the exercise of its revisional jurisdiction cannot allow an order, which amounts to an abuse of the powers vested in the trial Court, to stand once such an order comes to the notice of the High Court."
17. Even under [SECTION] of the [ACT], such an order can be set aside. Further when Court exercises jurisdiction under [SECTION] of the [ACT], even the restrictions embodied under [SECTION] of [ACT] will not be attracted. The learned counsel for the respondent, however, contends that even when the Court holds that it has no jurisdiction to try a proceeding before it yet, it can pass any suitable order under its inherent power under [SECTION] of [ACT]. This contention has no merit. The power under [SECTION] of [ACT] can be exercised only when there is a proceeding lawfully before the Court. In [PRECEDENT] , the Supreme Court held as follows :
"[SECTION] preserves the inherent power of the Court as may be necessary for the ends of justice or to prevent abuse of the process of the Court. That power may be exercised where there is a proceeding lawfully before the High Court, it does not, however, authorise the High Court to invest itself with jurisdiction where it is not conferred by law."
The learned counsel also sought to rely on the decision in [PRECEDENT] . But the merger spoken to therein has absolutely no application at all to the facts of the present case. The civil miscellaneous appeals said to have been filed by the respective Respondents herein against Clause (1) of the above said respective orders are against the decision holding that the Court has no jurisdiction to try the said interlocutory applications. But these revision petitioners are against the injunctions granted under Clause (2) of the above said respective orders. So (supra), has no application. Further the observations will also not affect the hearing of the appeals."
18. On a serious cogitation of the facts and circumstances of the case, it emerges that when there is want of jurisdiction to try a proceeding before a Court which pass an order, such said order can be questioned either by filing an application under [SECTION] of the [ACT] or even, can be questioned by filing a civil revision. Since the impugned order was passed by costs.