CR No.1417 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.1417 of 2009 (O&M) Date of Decision: 4.08.2009 Arihant Spinning Mills & Ors. ...Petitioners Vs. Sarfraz Hussain ..Respondent Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.O.P.Goyal, Sr. Advocate, with Mr.Varun Sharma, Advocate, for the petitioners. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) CM No.6241-CII of 2009 Allowed. Petitioner is exempted from filing certified copy of Annexure P.1 to P.13. CR No.1417 of 2009 This order shall dispose of CR Nos. CR No.1417 & 3551 of CR No.1417 of 2009 2 2009 both titled Arihant Spinning Mills & Ors. Vs. Sarfraz Hussain, as common question of law and facts are involved in both these revision petitions. For the sake of brevity facts are being taken from CR No.1417 of of 2009. The plaintiff/respondent filed a suit for permanent prohibitory injunction restraining the defendants from terminating his job/duties of clerk in Arihant Spinning Mills, Industrial Area, Malerkotla, by themselves, through their employees, associates or any other agency illegally, forcibly and without following due course of law. The plaintiff/respondent was selected for the post of clerk on 17.4.1993 and was regularized in Pay Scale of 1360/- per month. It was the case of the plaintiff/respondent, that he worked on the post of clerk up to 1.2.2002 and thereafter he was forced to resign by using coercive methods, and was paid the amount of EPF fund. He gave his old EPF account number as 11686. The plaintiff/respondent thereafter, was reappointed as clerk on 1.9.2003 and new EPF number 17254 was allotted to him. It was the case set up by the plaintiff that he is being pressurized by using coercive methods to resign from the service of clerk, and further that defendants were not allowing the plaintiff to enter the premises to perform his duties. It was also pleaded that the defendants were illegally and forcibly, without due process of law were threatening to terminate his services and had also prepared a false inquiry report to achieve this object. The relief claimed was that the CR No.1417 of 2009 3 defendants be restrained from terminating the services of the plaintiff except in due course of law. The suit was contested wherein one of the pleas taken was that civil court had no jurisdiction to try the suit as the remedy of the plaintiff/respondent was under the Industrial Disputes Act. The allegations levelled was said to constitute an industrial dispute. On merits the averments made in plaint were denied. On the pleadings of the parties issues were framed. Application moved by the plaintiff/respondent under Order 39 Rules 1 and 2 of the Code of Civil Procedure was dismissed by learned Civil Judge. Appeal against the order was also dismissed. Petitioner herein thereafter moved an application for treating the issue of “jurisdiction” as preliminary. The impugned order passed by the learned trial court reads as under:- “ Arguments heard on the application under Order 14 Rule 2 (2) C.P.C. for treating issue regarding jurisdiction as preliminary one and deciding the same before settlement of the other issues. Present application has been filed by defendants alleging therein that there is an industrial dispute and plaintiff is a workman as defined under section 2 (2) of the Industrial Disputes Act, 1947. So it is triable under the Industrial Dispute Act and this court has no jurisdiction. I have considered this contention of learned counsel for the defendant and do not find myself agree with it. Firstly it is relevant to mention here that CR No.1417 of 2009 4 sine the issue regarding jurisdiction involves question of law only, therefore, the same is treated as preliminary issue. So far as jurisdiction of civil court is concerned, the present suit is a suit for permanent injunction restraining the defendants from terminating the plaintiff from his job illegally and forcibly except indue course of law Thus, the dispute does not relate to enfacement of any right under the Industrial Dispute Act. It is pertinent to mention here that this court has already decided the stay application filed by plaintiff and now it an not be said that this court has no jurisdiction to try the suit. The civil court has the jurisdiction to try the suit for permanent injunction filed by the plaintiff. With these observations, the present application stands disposed of and preliminary issue regarding jurisdiction is decided in favour of the plaintiff.” Mr.O.P.Goyal, learned senior counsel for the petitioner by placing reliance on the judgment of Hon'ble Allahabad High Court in the case of Kanhaiya Lal Vs. Town Education society and Ors. 2003 (1) SCT 25 contended, that that the suit for injunction to restrain an employer from terminating his services, is a dispute covered under the Industrial Disputes Act and therefore, the jurisdiction of the civil court would be barred. The Hon'ble Allahabad High Court in the referred case had placed reliance on the judgment of Hon'ble Supreme Court in the case of Chandrakant Tukaram Nikam Vs. Municipal Corporation of CR No.1417 of 2009 5 Ahmedabad 2002 (2) SCT 367, wherein Hon'ble Supreme Court was pleased to lay down as under:- “ It may be borne in mind that the Industrial Disputes Act was enacted by the Parliament to provide speedy, inexpensive and effective forum for resolution of disputes arising between workmen and the employers, the underlying idea being to ensure that the workmen does not get caught in the labyrinth of civil Courts which the workmen can ill afford, as has been stated by this court in Rajasthan State Road Transport Corpn. case (AIR 1995 SC 1715: 1995 SAIR SCW 2683) (supra). It cannot be disputed that the procedure followed by civil Courts are too lengthy and consequently, is not an efficacious forum for resolving industrial disputes speedily. The power of Industrial Courts also is wide and such forums are empowered to grant adequate relief as they think just and appropriate,. It is in the interest of the workmen that their disputes, including the depute of illegal termination are adjudicated upon by an industrial forum ............In the aforesaid premises and having regard to the relief sought for in the suits filed in the civil court, we have no manner of hesitation to come to the conclusion that in such cases, the jurisdiction of the civil court must be held to have been impliedly bared and the appropriate forum for resolution of such dispute is the forum constituted under the Industrial Disputes Act. We, therefore, do not find any infirmity CR No.1417 of 2009 6 with the impugned judgment of the High Court, requiring our interference. The appeals accordingly fail and are dismissed. we would, however,observe that it would be open for the appellants-workmen to approach the appropriate industrial forum and such forum if approached, will dispose of the matter on it own merits. There will be no order as to cost.” Learned senior counsel appearing on behalf of the petitioner also placed reliance on the judgment of Hon'ble Supreme Court in the case of The Premier Aotumobiles Ltd. Vs. Kamlakar Shantaram Wadke and others, AIR 1975 SC 2238, wherein Hon'ble Supreme Court was pleased to lay down following principles with regard to the jurisdiction of the civil court in relation to dispute between employer and employee which read as under:- “(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. (2) If the dispute is an industrial dispute arising out of a right or liability under the general 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 si competent to be granted in a particular remedy. (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 CR No.1417 of 2009 7 Act. (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 33C or the raising of an industrial dispute, as the case may be. 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 aright 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 dismissed of an unsponsored workman which in view of the provision of law contained in S.2A if 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 the principle 2. Cases of Industrial disputes by and large, almost invariably,are bound to be covered by principle 3 stated above.” Learned senior counsel appearing on behalf of the petitioner contended that the plaintiff/respondent in this case was seeking enforcement of his right under the Industrial Disputes Act, by claiming an injunction against his termination and therefore, the impugned order passed by the learned civil court cannot be sustained. Special reference was made to para No.31 of the judgment in CR No.1417 of 2009 8 the case of The Premier Aotumobiles Ltd. Vs. Kamlakar Shantaram Wadke and others (supra) which reads as under:- “31. On the facts of this case it is all the more clear that the civil court has no jurisdiction to try it. The manner of voluntary reference of industrial disputes to arbitration is provided in Section 10A of the Act. The reference to arbitration has to be on the basis of a written agreement between the employer and the workmen. As provided in sub-section (5) nothing in the Arbitration Act, 1940 shall apply to arbitration under Section 10A of the Act. There is no provision in the Act to compel a party to the agreement to nominate another arbitrator if its nominee has withdrawn from arbitration. The company had terminated the agreement dated the 14th March, 1968 under Section 19 (2) of the Act. On the authority of this Court in South Indian Bank Ltd.Vs. A.R.Chacko (1964) 5 SCR 625 = (AIR 1964 SC 1522). Mr.Iyer endeavored to argue that inspite of the termination of the agreement it still continued to be in force. Apart from the fact that the decision of this Court was with reference to the termination of the award under Section 19, it is clear that the termination of the agreement in this case was not accepted by the union. It sought to challenge it by the institution of a suit. It is clear that the suit was in relation to the enforcement of a right created under the Act. The remedy i Civil court was barred. The only remedy available to the CR No.1417 of 2009 9 workmen concerned was the raising of an industrial dispute. It was actually raised, and, as a matter of fact, shortly after the institution of the suit the disputes were referred b the Government to the Industrial Tribunal in I.T.Number 33 of 1972 on the 25th January, 1972.” On consideration of mater, I find no force in the contentions raised by the learned counsel for the petitioner. Hon'ble Full Bench of this Court in the case of Sukhi Ram Vs. State of Haryana 1982 PLR 717, has laid to lay down as under:- “ That if the right or liability flows from the Act itself then the remedy therefore would also lie within the procedural provisions of the same statute alone. Where the right or obligation giving rise to the industrial dispute springs from a source other than the Act, that is, under the general law (including therein any other statutes) then the workman is expressly given two alternative remedies. In such a case, it is in his discretion to either make resort to the ordinary jurisdiction of the civil courts or to seek the remedies under the Act. However, he must distinctly elect his remedy. It is now authoritatively settled that he cannot have both. He is to choose one or the other. In the present case it is the common case that the dismissal or removal of workmen here raises dispute arising out of the rights or liabilities under the general or the common law. There is no dispute here that the workmen have CR No.1417 of 2009 10 not even remotely resorted to any of the remedies under the Industrial Disputes Act. No industrial dispute was sought to be raised on their behalf nor any reference claimed under section 10 of the Act. They had straight-away made their election and chosen to agitate their rights in the civl courts. Both on principle and binding precedent, therefore, they would be clearly entitled to claim relief by way of a civil suit.” Reading of law laid down by Hon'ble Full Bench in the case of Sukhi Ram Vs. State of Haryana and of Hon'ble Supreme Court in the case of The Premier Aotumobiles Ltd. Vs. Kamlakar Shantaram Wadke and others would show that law is well settled that the jurisdiction of the civil court is only barred, when right is claimed under the provisions of Industrial Disputes Act. In the present case the petitioner has not sought injunction against termination of his services nor he is seeking to enforce the service contract by enforcing his right under the Industrial Disputes Act. The only relief claimed is for restraining the petitioner herein from illegally terminating his service except with due process of law. Right of a person to be treated in accordance with law, is a civil right of the person, not flowing from the Industrial Disputes Act, which could bar the jurisdiction of the civil court. It would have been different matter if the plaintiff/respondent was to challenge his termination or in case he would have sought injunction against the termination of service then in that case the jurisdiction of the civil court would be barred, in view of the CR No.1417 of 2009 11 judgment of Hon'ble Supreme Court in the case of Chandrakant Tukaram Nikam Vs. Municipal Corporation of Ahmedabad (supra). When the plaintiff is merely claiming his right to be treated in accordance with law, it is a civil right, which can be enforced only by the civil court, and the Industrial Tribunal would has no jurisdiction. No fault, therefore, can be found with the judgment of learned lower court. No merit. Dismissed. (Vinod K.Sharma) 4.08.2009 Judge rp