IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Civil Revision No. 16/2006 Reserved on:29.10.2008 Decided on: 6.11. 2008 Himachal Pradesh State Electricity Board. …Petitioner/Judgment Debtor. Versus Milkhi Ram. …Respondents/Decree-Holder. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. Yes. For the Petitioner/ : Mr. Baldev Singh, Advocate. Judgment Debtor. For the Respondent/ : Mr. H.K. Paul, Advocate. Decree Holder. Rajiv Sharma, J. This Civil Revision is directed against the order dated 31.12.2005 passed by the learned Civil Judge (Junior Division), Court No.II, Palampur, District Kangra, H.P. in CMA No. 8/2003. Brief facts necessary for the adjudication of this Civil Revision are that the respondent/decree holder (hereinafter referred to as the decree holder for convenience sake) filed a suit for declaration in the court of 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 learned Sub Judge Ist Class (II), Palampur to the effect that order dated 1.1.1985 vide which his services were dispensed with by the Executive Engineer, Himachal Pradesh State Electricity Board, Lambagaon was illegal and contrary to the service rules. The trial court returned a finding that since the decree holder had already completed 240 days of service he could not be retrenched without following the procedure of law or without payment of retrenchment compensation. The trial court has taken into consideration section 25-B and 25-F of the Industrial Disputes Act, 1947 while returning this finding. Consequently, the termination or dispensing with the services of the decree holder or striking off his name from the roll after 20.11.1984 was declared illegal and not binding upon him. He was held entitled to all the benefits, including wages after 20.11.1984 as daily paid worker in the manner discussed by the trial court in para 10 of the judgment. He was further directed to be employed till his services were terminated in accordance with law. The petitioner/judgment debtor (hereinafter referred to as the judgment debtor for convenience sake) was further directed to consider the case of the decree holder for regularization of his services as per rules after giving the entire benefits of service since 11.11.1976 onwards as his services were never terminated. The judgment debtor feeling aggrieved by the judgment and decree dated 12.10.1988 passed by the trial court, preferred an appeal before the Additional District Judge, Kangra at Dharamshala on 15.11.1988. The first appellate court affirmed the findings recorded by the learned trial court to the effect that since the workman had completed 2778 days continuously, his services could not be dispensed with without following the provisions of the Industrial Disputes Act, 1947. The plea of jurisdiction raised by the judgment debtor was repelled by the learned first appellate court by relying upon the judgment rendered by this Court in Civil Revision No. 47 3 of 1992, Himachal Pradesh State Electricity Board and others versus Jagat Ram, Jagdev Singh versus The State of Himachal Pradesh and others (1988 LAB I.C. 1088) and Municipality, Jagadhri versus Ved Parkash Aggarwal and another (1988 S.L.J. 438). The judgment debtor aggrieved by the judgment and decree passed by the learned first appellate court dated 5.7.1993 filed a Regular Second Appeal No. 307/1993. The same was dismissed in default. The application filed for restoration of the Regular Second Appeal was dismissed by the Court on 4.8.1999. The decree holder filed an application under order 21 rule 32 of the Code of Civil Procedure on 30.12.2002 for implementation of the judgment and decree dated 12.10.1988 in civil suit No. 100/1985. The judgment debtor filed a reply to the same. The executing court framed as many as six issues while deciding the application. The application preferred by the decree holder under order 21 rule 32 of the Code of Civil Procedure was allowed by the learned Civil Judge on 31.12.2005. The operative portion of order dated 31.12.2005 reads thus: “In view of the aforesaid discussion and findings on issue No.1, the application under order 21 Rule 32 of CPC is allowed and the respondent Board is directed to abide by the judgment and decree of this Court within 30 days and a show cause notice be issued to the Secretary of the respondent Board requiring him to show cause as to why he should not be detained in civil imprisonment for disobedience of the orders of this Court after the expiry of said 30 days. Further, the property of the respondent Board be attached in the sum of Rs. 50,000/- in the mean time. File after due completion be consigned to the record room.” Mr. Baldev Singh has strenuously argued that order dated 31.12.2005 is not sustainable in the eyes of law. He also contended that 4 the civil court had no jurisdiction to adjudicate upon the matter once the workman basis his claim on the grounds available under the Industrial Disputes Act, 1947. In other words, his contention was that the jurisdiction of the civil court was ousted and only the Labour Court or Industrial Tribunal could adjudicate upon the matter provided under the Industrial Disputes Act, 1947. He further contended that the plea of jurisdiction was raised before the first appellate court, but the same was repelled. He further contended that the plea of jurisdiction could be raised even at any stage, including at the stage of execution proceedings. He lastly contended that the judgments and decrees passed by the courts below are nullity and could not be executed. Mr. H.K. Paul has supported order dated 31.12.2005. His contention is that the judgment and decree passed by the trial court was affirmed by the first appellate court and the Regular Second Appeal preferred against the judgment and decree of the first appellate court was dismissed by this court in default on 12.6.1998 and the application for restoration of Regular Second Appeal was also dismissed on 4.8.1999. His precise submission is that the judgments and decrees passed by the courts below are in accordance with law. I have heard the learned counsel for the parties and perused the record carefully. The trial court in civil suit No. 100/1985 has framed the following issues, which read thus: 1. Whether alleged termination of plaintiff is illegal and malafide as alleged? OPP 2. Whether plaintiff has completed 240 days of service uninterrupted, if so, its effect? OPP 3. Whether suit is not maintainable OPD 4. Whether plaintiff is estopped by his act and conduct to file suit? OPD. 5 5. Whether the plaintiff has no cause of action? OPD 6. Whether the Court has no jurisdiction? OPD 7. Relief. The trial court had recorded the following findings on issues No.1 and 2: “From my discussion above, it has been proved that the plaintiff worked in HPSEB Electrical Sub Division Jaisinghpur as daily paid worker till 1.1.1985 and before his services were terminated/dispensed with, he has already completed 240 days of service rather he had put in more than one year of service and being so, he could not be retrenched without following the proper procedure of law or without payment of retrenchment compensation etc. As no retrenchment compensation has been paid to the plaintiff, his termination is illegal and void.” The findings recorded on issues No. 5 and 6 are that both these issues were rightly not pressed at the time of final arguments as there is no substance in both these issues in favour of defendant. As such, both these issues are decided against the defendant. However, it is evident from the judgment of the learned first appellate court that the issue whether the civil court had jurisdiction or not in view of the specific machinery provided under the Industrial Disputes Act, 1947 was raised and discussed at length by the first appellate court. The first appellate court rejected the contention of the judgment debtor on the basis of the judgments cited hereinabove and held that the civil court had jurisdiction even if the dispute had arisen under the Industrial Disputes Act, 1947. The Regular Second Appeal preferred against the judgment and decree dated 5.7.1993 passed by the learned first appellate court was dismissed in default on 12.6.1998 and was not restored vide order dated 4.8.1999. The decree holder filed an application as already discussed hereinabove. The judgment debtor had taken the objection that the application was not 6 maintainable in that form and the decree holder had no locus standi to file the application against the judgment debtor. The short question which has fallen for consideration before the Court is: whether the civil court had jurisdiction to adjudicate upon the civil suit filed by the decree holder alleging violation of the mandatory provisions of the Industrial Disputes Act, 1947. The Industrial Disputes Act, 1947 is a self contained Code. The mode of enforcement of various mandatory provisions of law is provided under the Industrial Disputes Act, 1947. The trial court has held that the petitioner had completed 240 days and thus his retrenchment was bad in law. This finding has been affirmed by the first appellate court and it has been expressly held by it that the retrenchment of the decree holder was not in accordance with the provisions of the Industrial Disputes Act, 1947. The question whether the civil court has the jurisdiction to adjudicate upon the matters arising under the Industrial Disputes Act, 1947 is no more res integra in view of the law laid down by their Lordships of the Hon’ble Supreme Court in the Premier Automobiles Limited versus Kamlekar Shantaram Wadke of Bombay and others, (1976) 1 SCC 496. Their Lordships have held as under: “To sum up, the principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute may be stated thus: (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 or common law and not under the Act, the jurisdiction of the civil Court is alternative, leaving 7 it to the election of the suitor concerned to choose his remedy for the relief which is 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 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.” This question again came before the Hon’ble Supreme Court in Rajasthan State Road Transport Corporation and another versus Krishna Kant and others, (1995) 5 SCC 75. Their Lordships have held as under: “We may now indicate the area of dispute. It is this: where a dispute between the employer and the employee does not involve the recognition or enforcement of a right or obligation created by the Industrial Disputes Act and where such dispute also amounts to an industrial dispute within the meaning of Industrial Disputes Act, whether the Civil Court's jurisdiction to entertain a suit with respect to such dispute is barred? To put it nearer to the facts of these appeals, the question can be posed thus. Where the dispute between the employer and the workman involves the recognition, application or enforcement of certified Standing Orders is the jurisdiction of the Civil Court to entertain a suit with respect to such dispute is barred? This question involves the perennial problem concerning the jurisdiction of the Civil Court vis-a-vis Special Tribunals, a subject upon which the decisions of this Court, let alone other courts is legion. We do not, however, propose to burden this judgment with all of them. We shall refer only to those which have dealt with 8 the question in the context of Industrial Disputes Act. By way of introduction though, we may refer to the summary of principles enunciated in Dhulabhai v. State of M. P., (1968)3 SCR 662 : AIR 1969 SC 78. They are the following (at pp. 89-90 of AIR): "(1) Where the statute gives a finality to the orders of the special Tribunals the civil court's jurisdiction must be held to the excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provisions, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. 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 inquiry 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 determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not. (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a 9 revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authority and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply." We may now summarise the principles flowing from the above discussion: (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 2(k) or Section 2-A of the Industrial Disputes Act, 1947. (2) Where, however, the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial 10 Disputes 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 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 may constitute industrial disputes within the meaning of Section 2(k) and Section 2-A of Industrial Disputes 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 industrial Disputes Act. Otherwise, recourse to Civil Court is open. (4) It is not correct to say that the remedies provided by the Industrial Disputes 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, we commend to the Parliament and the State Legislatures to make a provision enabling a workman to approach the Labour Court/Industrial 11 Tribunal directly - i.e., without the requirement of a reference by the Government - in case of industrial disputes covered by Section 2-A of the Industrial Disputes Act. This would go a long way in removing the misgivings with respect to the effectiveness of the remedies provided by the Industrial Disputes Act. (6) The certified Standing Orders framed under and in accordance with the Industrial Employment (Standings Orders) Act, 1946 are statutorily imposed conditions of service and are binding both upon the employers 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 Industrial Disputes Act or the Civil Court where recourse to Civil Court is open according to the principles indicated herein. (7) The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and un- encumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to civil courts. Indeed, the powers of the Courts and Tribunals under the Industrial Disputes 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.” Their Lordships of the Hon’ble Supreme Court in Chandrakant Tukaram Nikam and others versus Municipal Corporation of Ahmedabad and another, (2002) 2 SCC 542 have again reiterated that 12 the jurisdiction of the civil court in such cases is impliedly barred. Their Lordships have held as under: “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 barred and the appropriate forum for resolution of such dispute is the forum constituted under the Industrial Disputes Act.” Their Lordships in Rajasthan State Road Transport Corporation and others versus Zakir Hussain, (2005) 7 SCC 447 have held that the employee (conductor in that case) of State Road Transport Corporation had only remedy under the Industrial Disputes Act and not by way of a suit. Their Lordships have held as under: “In the instant case, the respondent was appointed as a conductor purely on ad hoc basis for a period of two years. It is not in dispute that the appellant is governed by the Standing Orders of the Rajasthan State Road Transport Corporation, Workshop Employees and also governed by the terms of appointment. This apart, the respondent has placed reliance on the standing order and, therefore, the only remedy available to the respondent was by way of reference under the provisions of the Industrial Disputes Act.” Their Lordships of the Hon’ble Supreme Court in Rajasthan SRTC and others versus Khadarmal, (2006) 1 SCC 59 have held that the civil court had no jurisdiction and the decrees passed by it had no force of law and were set aside. Their Lordships have further held that there could not be any reinstatement or continuation of reinstatement effected or entitlement to further emoluments or service benefits on the basis of such decree. Their Lordships have held as under: 13 “In all these cases one of the questions for consideration is whether a civil court would have jurisdiction or whether the termination of service of a probationer was required to be challenged by raising a dispute under the Industrial Disputes Act. This question is now squarely covered by the decisions of this Court in Rajasthan SRTC v. Krishna Kant((1995) 5 SCC 75 : 1995 SCC (L&S) 1207 : (1995) 31 ATC 110) as well as in Rajasthan SRTC v. Zakir Hussain((2005) 7 SCC 447 : 2005 SCC (L&S) 945 : (2005) 6 Scale 641). It has been held that the civil court would have no jurisdiction. As these judgments are binding on us, we also hold that in all these matters the civil court had no jurisdiction to adjudicate. In our view, as the civil court had no jurisdiction, the decrees which were passed have no force of law. They are accordingly set aside. In our view, there can be no direction to reinstate or to continue reinstatement. However, on the facts of these cases we also direct that if any back wages have been paid, they shall not be recovered but clarify that the respondents will not be entitled to any further emoluments or service benefits.” Similar principles were laid down by their Lordships of the Hon’ble Supreme Court in Rajashtan SRTC and another versus Ugma Ram Choudhry, (2006) 1 SCC 61. In a recent pronouncement, their Lordships of the Hon’ble Supreme Court in Chief Engineer, Hydel Project and others versus Ravinder Nath and others, (2008) 2 SCC 350 have held that barring of civil court jurisdiction, the objection can be raised before the Supreme Court when not raised before lower courts and doctrine of coram non judice applied and have declared the judgments of the lower courts without jurisdiction. Their Lordships have held as under: “Learned counsel appearing on behalf of the appellants urged that since the issues squarely fell within the ambit 14 of the Industrial Disputes Act, 1947 and since there is a specific remedy available to the plaintiffs-respondents under that Act, the jurisdiction of the Civil Court was impliedly excluded and all the courts below erred in entertaining and deciding upon the issues much less adverse to the appellants. Learned counsel, relying on this Court's judgments in The Premier Automobiles Ltd. & Ors. v. Kamlekar Shantaram Wadke of Bombay & Ors. [(1976) 1 SCC 496], Jitendra Nath Biswas v. M/s.Empire of India & Ceylone Tea Co. & Anr. [(1989) 3 SCC 582]; Rajasthan State Road Transport Corporation & Anr. v. Krishna Kant & Ors. [(1995) 5 SCC 74]; and Rajasthan State Road Transport Corporation & Ors. v. Zakir Hussain [(2005) 7 SCC 447] urged that the legal position in this behalf was settled. On the other hand the learned counsel on behalf of the respondents urged that firstly this issue relating to jurisdiction was not raised by the respondents before any courts below and it is only for the first time that the objection to the jurisdiction has been raised before this Court. Learned counsel for the respondents also urged that the issue was not covered under the labour jurisprudence and under the provisions of the Industrial Disputes Act, 1947 and the jurisdiction of the Civil Court could not be said to be barred. DISCUSSIONS We would take into account the objection to the effect that the contention regarding the jurisdiction was not raised and, therefore, it could not be allowed to be raised at