IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3163 of 2007 Date of Decision : October 14, 2009 Ram Mehar Singh Kundu ....Appellant Versus National Fertilizers Limited, Panipat and others .....Respondents CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Appellant in person with Mr. D.B. Singh, Advocate Mr. Nilesh Bhardwaj, Advocate for the respondents. T.P.S. MANN, J. Suit filed by the plaintiff-appellant for permanent injunction was dismissed by Additional Civil Judge (Senior Division), Panipat on 22.8.2006. Aggrieved of the same, the appellant filed the first appeal, which was also dismissed by Additional District Judge, Panipat on 26.2.2007. He is now before this Court by way of second appeal filed under Section 100 of the Code of Civil Procedure. According to the plaintiff, he was appointed as Operator Grade-III in National Fertilizers Limited and promoted as Operator Grade-II and, thereafter, as Operator Grade-I. He had been discharging his duties sincerely but when defendant No.2 took charge as General Manager, he gave instructions to his subordinates to cause damage and wrongful loss to the plaintiff by spoiling his service record, as he had a R.S.A. No. 3163 of 2007 -2- biased attitude against him. Said defendant also directed defendant No.3 not to give attendance sheet to the plaintiff. The latter then filed a suit in which he was allowed to mark his presence. The defendants felt annoyed with the filing of the suit and directed Deputy Commandant, C.I.S.F. to prepare a false record of absence of the plaintiff from duty. He was marked as absent on 30.12.1998, although he had performed his duties. He made a representation but the same was not heard and a charge sheet issued against him, which he challenged by filing separate civil suit. Defendant No.2 also got the Annual Confidential Report of the plaintiff spoiled through defendant No.3. The plaintiff had been performing his duties regularly and without any break. As he was entitled to casual leave, he submitted an application on 1.9.1999 and also on 4.9.1999 for half day's leave but the same were not sanctioned. Earlier on 12.5.1999, defendant No.3 had asked the plaintiff to give an application for leave, but he was marked absent. Pleading that defendant No.3 was acting with a malafide intention to harass and to cause a wrongful loss to him and, that too, despite issuance of legal notice by him which proved ineffective, the plaintiff filed suit for declaring adverse remarks in his Annual Confidential Report for the year ending 31.3.1999 and deduction of his pay for 12.5.1999 as illegal, null and void. He also sought relief of mandatory injunction to direct the defendants to expunge the adverse remarks from the report and for restraining them from deducting any salary for 1.9.1999 and 4.9.1999. R.S.A. No. 3163 of 2007 -3- The defendants opposed the suit by filing their written statement. It was submitted therein that they had acted in accordance with law and the suit was, thus, not maintainable. According to the defendants, they had no personal grudge against him and acted only in their official capacity. The plaintiff concealed material facts as he did not come present on 1.9.1999 nor he applied for leave. Again he was absent on 4.9.1999 and applied for leave later on. The plaintiff marked himself as on leave against the word 'present'. No directions were issued to the Deputy Commandant, C.I.S.F. for preparing any false report against the plaintiff. However, the plaintiff was in the habit of leaving his duties after marking 'present' himself in the attendance sheet. On 30.12.1998 he was found absent. All the remarks had been given by the competent authority and the plaintiff had the remedy of getting the same expunged in accordance with rules of the Company. It was denied that the plaintiff applied for leave in advance. There was no question of asking the plaintiff to proceed on leave on 12.5.1999. The conduct of the plaintiff of leaving his workplace without any intimation and not attending to his duties was made the basis of issuing a show cause notice to him. The civil Court had no jurisdiction to try the suit. Accordingly, it was prayed that the suit be dismissed. Both the learned Courts below held that the plaintiff could not show or prove as to why the defendants were biased against him alone and what were the reasons as to why the defendants made adverse R.S.A. No. 3163 of 2007 -4- report against him, as alleged by him. Moreover, the plaintiff was an employee of National Fertilizers Limited, Panipat and the dispute between the employer and the employee could be resolved under the Industrial Disputes Act, whereas the jurisdiction of the civil Court was very limited. Accordingly, the suit was dismissed. It may not be out of place to mention here that in respect of another charge sheet issued earlier to the plaintiff, he filed a civil suit, which was dismissed by the Courts below. The plaintiff then filed R.S..A. No.2467 of 2007, which was, however, withdrawn by him on 11.7.2008 with liberty to move the Labour Court, Panipat for redressal of his grievance. In the present suit, the plaintiff has challenged the adverse remarks recorded in his Annual Confidential Report for the year ending 31.3.1999, besides deduction of pay for 12.5.1999. As per standing Order 26 issued by defendant No.1, the plaintiff had the remedy of submitting his representation against the recording of adverse remarks. The plaintiff levelled allegations of bias against the defendants, however, he did not substantiate his plea. Learned lower appellate Court in para 12 of the impugned judgment noticed that the plaintiff was duly informed about recording of adverse remarks vide document Ex.P7. In such a situation, the suit filed by him was not maintainable. Moreover, the plaintiff had also approached Industrial Tribunal by way of reference in respect of the grievances as set up in the present suit. R.S.A. No. 3163 of 2007 -5- Learned counsel for the appellant, while relying on Rajasthan State Road Transport Corporation and another v. Krishna Kant and others, (1995) 5 Supreme Court Cases 95, submitted that the plaintiff was entitled for recourse to civil Court, as the Industrial Tribunal does not provide a forum for resolution of the dispute raised by the plaintiff. He has drawn the attention of the Court to the following observations made in the said judgment :- “Similarly, where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactment 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 it shall be adjudicated by any of the forums created by the Industrial Disputes Act. Otherwise, recourse to civil Court is open.” There cannot be any dispute with the proposition of law as laid down by the Hon'ble Supreme Court in the aforementioned case. In dispute involving the recognition, observation or enforcement of rights and obligations created by enactment like Industrial Employment R.S.A. No. 3163 of 2007 -6- (Standing Orders) Act, 1946, 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. However, such like disputes should constitute industrial disputes within the meaning of Section 2(k) and Section 2-A of Industrial Disputes Act or where such enactment provides for treating such a dispute as an industrial dispute or to be adjudicated by any of the forums created by the said Act. If the same did not amount to an industrial dispute, recourse to civil Court is always open. However, in the present case, it is the plaintiff himself who also approached the Industrial Tribunal by way of reference. Accordingly, he was barred from taking recourse to civil Court. In Chandrakant Tukaram Nikam v. Municipal Corporation of Ahmedabad and another, AIR 2002 SC 997, it was held that jurisdiction of the civil Court, in such like matters as in the present case, was very limited, more so, when the Industrial Disputes Act stood enacted by the Parliament to provide speedy, inexpensive and effective forum of resolution of disputes arising between workmen and the employers. It was in the interest of the workmen that their dispute, including the dispute of illegal termination, were adjudicated upon by an industrial forum. The observations made by the Hon'ble Supreme Court are reproduced here-in-below :- “It may be borne in mind that the Industrial Disputes Act was enacted by the Parliament to R.S.A. No. 3163 of 2007 -7- provide speedy, inexpensive and effective forum of 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 Corporation case (AIR 1995 SC 1715 : 1995 AIR 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 dispute 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 Courts, 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 barred and the appropriate forum of resolution of such dispute is the forum constituted under the Industrial Disputes Act. We, therefore, do not find any infirmity 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 R.S.A. No. 3163 of 2007 -8- industrial forum and such forum if approached, will dispose of the matter on its own merits. There will be no order as to cost.” In view of the above, the civil Court had no jurisdiction to try the suit, more so, when the plaintiff had departmental remedy regarding recording of the adverse remarks in his Annual Confidential Report and, also, as he had already approached the Labour Court by way of reference. The concurrent findings arrived at by the learned Courts below are immune from challenge in a second appeal, which is maintainable only on some substantial question of law and not otherwise. The various substantial questions of law, as formulated by the appellant, do not arise for determination. The appeal is, accordingly, dismissed. ( T.P.S. MANN ) October 14, 2009 JUDGE satish