THE HONOURABLE SRI JUSTICE R. KANTHA RAO + SECOND APPEAL NO. 156 OF 2000 % 12-10-2011 # The Tirumala Tirupati Devasthanam Tirupati Represented by its Executive Officer, TTD Tirupati Chittoor district & Anr. … Appellants V/s $ C. Nagaraju … Respondent ! Counsel for the appellants : Sri A. K. Jayprakash Rao ^ Counsel for the respondent : Dr. P.B. Vijaykumar < Gist: Ø Head Note: ? CITATIONS: 1) (2004) 3 SCC-172 2) (2009) 14 SCC-360 3) AIR 1941 Oudh 422 4) (2009) 4 SCC-299 5) (2008) 5 SCC-542 6) AIR 1973 SC-855 IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD WEDNESDAY THE TWELVETH DAY OF OCTOBER TWO THOUSAND AND ELEVEN PRESENT THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL NO. 156 OF 2000 Between: The Tirumala Tirupati Devasthanam Tirupati Represented by its Executive Officer, T.T.D., Tirupati, Chittoor district & Anr. … Appellants V/s. C.Nagaraju … Respondent Counsel for the Appellants: Sri AK Jayprakash Rao Counsel for the Respondent: Dr.P.B.Vijaykumar The Court made the following: (Judgment follows next page) THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL NO. 156 OF 2000 JUDGMENT : This second appeal is filed against the decree and judgment dated 06-09-1999 passed by the III-Additional District Judge, Tirupati in AS.No.38 of 1998 confirming the decree and judgment dated 22-12-1995 passed by the I-Additional District Munsif, Tirupati in OS.No. 446 of 1993. 2. The respondent-plaintiff instituted the suit for declaration that he is in continuous service uninterruptedly from 05-9-1977 as helper-black smith in S.V. Sculpture Training-cum-Production Centre, Tirumala Tirupati Devasthanam under the control of appellants- defendants and also eligible for all the benefits as a employee of the appellants-defendants. The said suit was decreed by the trial court and the same was confirmed by the first appellate Court in the appeal preferred by the defendants-appellants. 3. Aggrieved thereby, the defendants-appellants filed the present second appeal. 4. For the sake of convenience, the parties will be referred to as the “plaintiff” and “defendants”. 5. Heard Sri A.K. Jayprakash Rao, the learned counsel appearing for the appellants-defendants and Dr.P.B. Vijay Kumar, the learned counsel appearing for the respondent-plaintiff. 6. The only substantial question of law formulated by this Court while admitting the second appeal is “whether the Civil Court has jurisdiction to adjudicate the claim of the respondent-plaintiff which falls within the domain of the Industrial Tribunal or Labour Court under the provisions of the Industrial Disputes Act ?” 7. The question of limitation was also heard on being raised by the learned counsel appearing for the appellants-defendants after affording opportunity to both the counsel. 8. The brief facts relevant to consider the second appeal may be stated as follows: The plaintiff’s version is that the defendants appointed him in a permanent post of helper-blacksmith in the S.V.Sculpture Training- cum-Production Centre, T.T.D., vide GO.Rt.No.912, Revenue (Endowments-III) Department, dated 28-5-1977 of the Government of Andhra Pradesh. The plaintiff reported for duty on 05-9-1977 and began discharging the duties of helper-blacksmith in S.V.Sculpture Training-cum-Production Centre, T.T.D. There were no any adverse remarks or complaint and he has been in continuous service as such on the date of the filing of the suit. He was fit for regularization of his service and to draw the basic pay of Rs.290/- per month with usual dearness allowance in the time scale of pay of Rs.290-5-345-20-425. The first defendant regularisied the services of some of the candidates who are similarly placed to that of the plaintiff vide Memo.ROC.No.B5/51101/02 dated 14-3-1984 and proceedings ROC.No.B5-8030/84 dated 28-9-1984 in terms of G.O.Ms.No. 1458, Revenue (Endowments-III) Department, dated 19- 9-1981. The plaintiff also furnished the names of the individuals whose services have been regularized under the aforesaid G.O. He contended that the action of the defendants in got regularizing the services of the plaintiff is arbitrary and unlawful. 9. It is said that the second defendant is the drawing and controlling officer of the plaintiff in S.V.Sculpture Training-cum- Production Centre, T.T.D. Due to some misunderstanding between the plaintiff and the second defendant in the matter of allotment of duties to the plaintiff, the second defendant developed some sort of inimical attitude towards the plaintiff and started harassing him. As a measure of harassment his case was not considered for regularization. 10. It is submitted by the plaintiff that the second defendant inspite of regular attendance of the plaintiff used to avoid marking his attendance in the Attendance Register, was drawing the salary for only few months inspite of complete attendance of the plaintiff to duty. It is said that from 01-02-1985 onwards the second defendant did not mark the attendance of the plaintiff whereupon the plaintiff brought all these facts to the notice of the Executive Officer, T.T.D. The plaintiff claims that his services were not terminated by the defendants for any proved misconduct. There were no adverse remarks against him and without there being any sufficient reason he was denied regularization of services nor there were any orders passed thereon by the defendants which were communicated to the plaintiff to the effect that they discontinued the services of the plaintiff for the post he was holding. 11. In the written statement, the defendants contended that the plaintiff was engaged only as casual labourer on daily wages, the plaintiff is not entitled to seek the relief of declaration, which is beyond the jurisdiction of the civil court and also that there is no cause of action for filing the suit and that the claim of the plaintiff is barred by limitation. 12. The plaintiff filed Ex.A-1 dated 19-8-1987 certificate issued by Sthapathy, TTD Tirupati, showing that PW-1 worked in S.V.Sculpture Training-cum-Production Centre as a casual labourer- black smith-helper from May 1980 to December 1984. Ex.A-2 is the office copy of notice issued by the plaintiff to the defendants to regularize his services. Exs.A-3 and A-4 are the postal acknowledgements of the said notice. Ex.A-7 is the copy of GO./Ms.No.1458, Revenue (Endt.III) Department, issued by the Government of Andhra Pradesh regularizing the services of NMRs, who have been working in TTD from 01-7-1975 to 31-12-1975. Ex.A- 6 is the proceedings issued by the first defendant in ROC.No.B5/51101/02 issued by Deputy Executive Officer, TTD Tirupati, under which the services of NMRs working from 01-7-1975 to 31-12-1980 have been regularized. Ex.A8 is the G.O.Ms.No. 296, Revenue (Endt./III) Department, dated 15-4-1988 issued by the Government of Andhra Pradesh under which the services of NMRs/casual labourers etc., who have been working in TTD Tirupati from 01-1-1975 to 31-3-1994 have been regularized. Ex.A-9 is the proceedings in ROC.No.B5-20447/91 dated 01-8-1991 issued by the first defendant under which the services of NMRs/casual labourers etc., who have been working in TTD Tirupati from 01-4-1984 to 31-3-1984 were regularized. Ex.A-10 is the medical aid identity card issued by TTD Tirupati to PW-1 and the said document shows that PW-1 is working as helper in TTD. 13. This apart, the plaintiff examined an employee working in the same Department as PW-2 and his evidence shows that he joined as NMR in the year 1977, one month after his joining, PW-1 joined as helper in their department, lthe plaintiff used to sharpen the edges of the instruments, at that time four blacksmiths were working with the plaintiff and they were having full work, TTD used to maintain records with regard to the disbursement of salaries and PW-1 was taking salary regularly by signing in the acquittance register. The Xerox copy of the acquittance register is marked as Ex.A-5. PW-2 stated that Ex.A-5 contains the signature of the plaintiff. He further stated in his evidence that even prior to 1971 their signatures were available in the acquittance registers, which were with the defendants. He also stated that his services were regularized in the year 1984. Ex.A-6 is the appointment order of PW-2. He stated that after regularization he is getting the regular pay and prior to that he was getting NMR scale. The evidence of DWs 1 and 2 is most crucial in this case. DW-1 is a Junior Assistant in the Office of Sthapathy, TTD, Tirupati and he was working since 1992. His evidence reveals that from 1972 to 1985 the plaintiff worked as casual labourer in SV Sculpture Training-cum-Production Centre under the control of the second defendant. DW-2 has been working as Sthapathy since 1984. His evidence discloses that he knows PW-1 who worked as piecework contract since 1986 till date. Depending on the work done by the plaintiff, the department used to pay the value to him. Exs.B-2 to B-7 are the vouchers of the bills, which they paid the value of work done by the plaintiff from 1985 till the date of his giving evidence before the court. His version is that Exs.B-2 to B-33 contain the signatures of the plaintiff. However, DW2 states that even though the plaintiff attended his work regularly, he is not a regular employee in their institution and that is the reason why they are not taking his attendance. DWs 1 and 2 have specifically admitted in their depositions before the learned trial court that even as on the date of giving their evidence the plaintiff had been working in their institution. 14. Basing on the aforesaid evidence, both the courts below have recorded concurrent finding that the plaintiff has been working in the institution since 1977. The said finding being in relation to fact, this court will not interfere with the said finding in the second appeal. 15. The question therefore remains to be considered is whether the civil court has jurisdiction to pass a declaratory decree as prayed for by the plaintiff and whether the plaintiff’s claim is within limitation ? 16. The learned counsel appearing for the appellants contended that as per Section 14-B and 34 of the Specific Relief Act, contract of personal services cannot be specifically enforced and the suit filed by the plaintiff is therefore not maintainable in the civil court. In support of his contention, he relied upon a decision in PEARLITE LINERS (P) LTD. V/s. MANORAMA SIRSI [1], wherein the Supreme Court held as follows: It is a well settled principle of law that a contract of personal service cannot be specifically enforced and a court will not give a declaration that the contract subsists and the employee continues to be in service against the will and consent of the employer. An employer cannot be forced to take an employee with whom relations have reached a point of complete loss of faith between the two. This general rule of law is subject to three well recognized exceptions: (i) where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India, (ii) where a worker is sought to be reinstated on being dismissed under the industrial law, and (iii) where a statutory body acts in breach of violation of the mandatory provisions of the statute. 17. For the same proposition, the learned counsel relied on a decision in APOLLO TYRES LIMITED V/s. C.P. SEBASTIAN [2]. In the said decision, the Supreme Court held as follows: A contract for personal service includes all matters relating to the service of the employee e.g., confirmation, suspension, transfer, termination etc. “ The Civil Court has no jurisdiction to enforce the contract of personal service, if the plaintiff had any grievance and if he is a workman defined in Industrial Disputes Act, he shall raise Industrial dispute and seek the relief under the same before the Labour Court or the Industrial Tribunal ”. 18. The learned counsel further relied on a decision in RAJA BAHADUR BISHWANATH SARAN SINGH AND ANR. V/s. CH. MUJTABA HUSSAIN AND ORS [3]., wherein it has been laid down that: The declaratory relief under section 42 of the Specific Relief Act, 1877 should not be granted if Court’s decree is likely to prove futile and ineffective. 19. The learned counsel also relied on a decision in NANDGANJ SIHORI SUGAR CO.LTD., RAE BARELI AND ANR. V/s. BNADRI NATH DIXIT AND ORS, wherein it is held that : A contract of employment cannot ordinarily be enforced by or against an employer. The remedy is to sue for damages. 20. Basing on the said decisions, the learned counsel appearing for the appellants would contend that the Civil Court has no jurisdiction or power to grant reinstatement or any other incidental relief, and the declaratory decree granted by the civil court being futile and cannot be passed. 21. On the other hand, it is contended by the learned counsel appearing for the respondent-plaintiff that the decisions relied upon by the learned counsel for the appellants are not applicable to the facts of the present case. According to him, since the second defendant is a statutory organization, created under A.P. Hindu Religious and Charitable Institutions Act, the dispute between the plaintiff and defendants not being purely an industrial dispute and as the fundamental right of the employee is involved, the suit is certainly maintainable. In support of his contention, he relied upon a decision i n RAJASTHAN STATE ROAD TRANSPORT CORPORATION AND ANR. V/s. BAL MUKUND BAIRWA(2) [4], wherein the Supreme Court held as follows: A dispute arising between an employer and employee may or may not be an industrial dispute. The dispute may relate to a fundamental right of the employee, or his right under a parliamentary Act and the regulations framed thereunder, and/or a right arising under the provisions of the Industrial Disputes Act or the sister laws, and may relate to same or similar rights or different rights, or even may be based on a common law right or contractual right. The question in regard to jurisdiction of the civil court must, therefore, be addressed having regard to the fact as to which rights or obligations are sought to be enforced for other purpose of invoking or excluding the jurisdiction of a civil court. If a statute while creating rights and obligations does not constitute a forum for enforcing the same, the plenary jurisdiction of civil court, in view of Premier Automobiles Ltd. Case (1976) 1 SCC 496 cannot be held to have been taken away. Any new right created under a statute would ordinarily be a right in favour of an employee over and above the general law. 22. The learned counsel for the respondent-plaintiff further relied upon a decision in RAJASTHAN STATE ROAD TRANSPORT CORPORATION AND ORS. V/s. MOHAR SINGH [5] , wherein the Supreme held as follows : There is distinction between a right which is conferred upon an employee under a statute for the first time and also providing for remedy,. And the one which is created to determine the cases under the common law right. Only in a case of the former, civil court’s jurisdiction is barred by necessary implications. The Civil Court jurisdiction is barred only when the right is claimed under the Industrial Disputes Act or other wise the civil court has jurisdiction. When the rights sought to be enforced are the fundamental rights of an employee, the civil court cannot act as appellate body and in certain circumstances, it may not have the power to direct reinstatement under the Specific Relief Act. Section 14(1)(b) of the Specific Relief Act, when a right accrues under two statutes vis-à-vis the common law right, the employee concerned will have an option to choose his forum. 23. The learned counsel also relied on a decision in SIRSI MUNICIPALITY BNY ITS PRESIDENT, SIRSI, V/s. CECELLIA KORO FRANCIS TELLIS [6], wherein the Supreme Court held as follows: Termination or dismissal of what is described as a pure contract of master and servant is not declared to be a nullity, however, wrongful or illegal it may be. The reason is that dismissal in breach of contract is remedied by damages. In the case of servant of the State or of local authorities or statutory bodies, courts have declared in appropriate cases the dismissal to be invalid if the dismissal is contrary to rules of natural justice or if the dismissal is in violation of the provisions of the statutes. Apart from the intervention of statute there would not be a declaration of nullity in the case of termination or dismissal of a servant of the State or of other local authorities or statutory bodies. The courts keep the State and the public authorities within the limits of their statutory powers. Where a State or a public authority dismisses an employee in violation of the mandatory procedural requirements or on grounds, which are not sanctioned or supported by statute, the courts may exercise limitation to declare the act of dismissal to be a nullity. Such implication of public employment is thus distinguished from private employment in pure cases of master and servant. 24. Now coming to the facts of the present case, the plaintiff contends that he has been an employee in the institution since 1977, and that the defendants regularized the services of several employees, who are similarly placed but denied the opportunity to him. The defence taken by the defendants in their written statement seems obviously is that the plaintiff worked only as a casual labourer for some time and subsequently abandoned his services. But the evidence forthcoming in this case is contrary to the stand taken by the defendants. The evidence of DWs 1 and 2 clearly indicates that the plaintiff has been continuously working in the institution since 1977 onwards till the date of giving their evidence before the Court. Therefore, it is no longer open for the defendants to contend that the plaintiff was not an employee in the institution or that he ceased to be an employee at any point of time. The defence set up by the defendants clearly indicates that they acted in gross violation of the principles of natural justice and also statutory rules governing their institution. The defendants it appears wantonly with held some registers, which according to the plaintiff would prove that he has been working as an employee of the institution since 1977 till date. Without any basis the defendants have been contending that some of the relevant registers were eaten away by white ants and subsequently they were destroyed. The defence taken by the defendants in this case is vague and evasive. The manner in which the defendant had set up their defence clearly reveals that they are not disclosing the true facts. The conduct of the defendants therefore apparently is in the nature of infringing the fundamental right of the plaintiff to continue in the employment and to get regularization if permitted by rules. The defendants obviously failed to follow the principles of natural justice and no opportunity was afforded to the plaintiff to represent his cause. Under these circumstances, as laid down by the Supreme Court in the judgments relied upon by the learned counsel appearing for the respondent-plaintiff the dispute is not purely an industrial dispute, which requires to be resolved by Industrial Tribunal or Labour Court, having recourse to the provisions of the Industrial Disputes Act. In a case of this nature, the plaintiff cam have the choice of his forum. Either he can raise Industrial Dispute or equally he can seek redressal of grievance by asking the relief of declaration by invoking the jurisdiction of the civil court. Since the evidence on record clearly shows that the plaintiff has been in employment of the defendants institution since 1977 and he was not abandoned or removed from service by the defendants at any point of time, he is entitled to seek the declaration as prayed for by him in the suit. Both the courts below therefore have rightly recorded a finding that the plaintiff is entitled for declaration, which is prayed for by him in the suit. The decree and judgment passed by the learned trial court, which were confirmed by the first appellate court do not call for any interference in this second appeal. 25. The second appeal being devoid of merit, therefore, fails and is dismissed without any order as to costs. __________________________ JUSTICE R. KANTHA RAO. 12-10-2011 I s L NB: LR Copy to be marked. THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL NO. 156 OF 2000 PRE-DELIVERED JUDGMENT Circulation No. Date: 12-10-2011 Court Master: I s L Computer : Bungalow of RKR, J. [1] ) (2004) 3 SUPREME COURT CASES-172 [2] ) (2009) 14 SUPREME COURT CASES-360 [3] ) AIR 1941 Oudh 422 [4] ) (2009) 4 SUPREME COURT CASES-299 [5] ) (2008) 5 SUPREME COURT CASES-542 [6] ) AIR 1973 SUPRE COURT - 855