IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.8.2008 CORAM: THE HONOURABLE MR.JUSTICE C.NAGAPPAN Second Appeal No.69 of 1998 Tamil Nadu Electricity Board, rep. by its Superintending Engineer, Electricity Distribution Circle, Villupuram. .. Appellant/ Defendant -Vs- Anthonisamy .. Respondent/ Plaintiff Second appeal is filed u/s 100 of CPC against the judgment and decree dated 15.7.1996 passed in A.S.No.270 of 1994 on the file of Principal District Judge, Villupuram reversing the judgment and decree dated 28.7.1994 made in O.S.No.1196 of 1993 on the file of Principal District Munsif, Villupuram. For appellant : Mr.N.Muthusami For respondent : Mr.G.Devadoss JUDGMENT This second appeal is preferred against the judgment and decree dated 15.7.1996 passed in A.S.No.270 of 1994 on the file of Principal District Judge, Villupuram reversing the judgment and decree dated 28.7.1994 made in O.S.No.1196 of 1993 on the file of Principal District Munsif, Villupuram. The defendant is the appellant. 2. The respondent filed the suit seeking for declaration that the order passed by the Chief Engineer on 8.6.1992 and the subsequent orders of the defendant dated 8.9.1992 and 17.10.1992 are valid and binding and for mandatory injunction to give effect to those orders and also to declare the order passed by the https://hcservices.ecourts.gov.in/hcservices/ defendant on 15.4.1993 as illegal and null and void and for permanent injunction restraining the defendant from giving effect to the above order dated 15.4.1993. The case of the plaintiff is that he originally worked as a temporary casual labour in General Construction Circle/North/Tamil Nadu Electricity Board/Vellore of the respondent Board and after six years, he was absorbed as Helper by order dated 8.5.1973 and his service as Helper was regularised from 1.1.1973 as per the subsequent order dated 20.9.1974 and in the course of duty, he was at South Arcot Electricity System in connection with erection of a sub station work and after completion of it, 50% of the workmen were absorbed for maintenance job and the plaintiff was given an option either to stay in the parent circle or work in the South Arcot Electricity System and the plaintiff expressed his willingness and he was absorbed at South Arcot Electricity System by order dated 21.9.1975 and during March 1984, the plaintiff was due for promotion to the next category as Wireman and by mistake he was not considered and the respondent-Board has not followed B.P.66 (Administration Branch) dated 1.2.1985 and the Chief Engineer by letter dated 8.6.1992 declared that the seniority of Helpers who were transferred from General Construction Circle/North/Vellore on the basis of 50% absorption would be fixed in the category of Helper from the date of appointment of Helper in the previous General Construction Circle and the plaintiff's seniority was re- fixed by the defendant in his order dated 8.9.1992. It is further stated by the plaintiff that the defendant however issued an order dated 15.4.1993 in which, he approved a supplementary list for promotion on temporary basis without following B.P.66 dated 1.2.1985 and the plaintiff has sought for declaring those proceedings as illegal in this suit. 3. The defendant in its written statement has stated that the plaintiff was not transferred from any project Circle to the Distribution Circle and he was only transferred from General Construction Circle (North), Vellore to the Distribution Circle and B.P.66 is not applicable to the plaintiff and the Chief Engineer in his letter dated 8.6.1992 ordered the seniority of the Helpers who have been transferred from General Construction Circle to Villupuram Distribution Circle on 50% absorption may be refixed by giving notice to the seniors and inviting objections and objections were received from 85 workers who were seniors to the plaintiff and in the subsequent order dated 28.10.1993, the Chief Engineer cancelled his previous order dated 8.6.1992 and therefore no order can be issued under the provisions of B.P.66 to the plaintiff. It is further stated by the defendant that the plaintiff opted to be absorbed as Helper in the Distribution Circle and the Board has followed the procedures and the Civil Court has no jurisdiction to entertain the suit. https://hcservices.ecourts.gov.in/hcservices/ 4. The plaintiff examined himself as P.W.1 and marked Exs.A1 and A2 and the D.W.1-Sheshadri was examined on behalf of the defendant and Exs.B1 to B19 were marked on the side of defendant. The Trial Court, on a consideration of oral and documentary evidence, held that the plaintiff is not entitled to the relief sought for and dismissed the suit. Aggrieved by the same, the plaintiff preferred appeal and the lower appellate Court allowed the appeal by setting aside the judgment and decree of the Trial Court and decreed the suit as prayed for. Challenging the same, the defendant has preferred the present second appeal. For the sake of convenience, in this Judgment, the parties are referred to as arrayed in the suit. 5. The following substantial questions of law have been framed for consideration at the time of admission of the second appeal. "1. Whether the Court below has jurisdiction to try a suit to declare the rights of the plaintiff to determine seniority without having regard to the provisions of the Industrial Disputes Act? 2. Whether Section 9 of the Civil Procedure Code can be resorted to in the matter of adjudication of service conditions? And 3. Whether the non-joinder of affected parties would be justified?" 6. The learned counsel for the appellant submits that the Civil Court has no jurisdiction to try the suit to declare the rights of the plaintiff claiming seniority and the suit is not maintainable. 7. Per contra, the learned counsel for the respondent submits that the jurisdiction of the Civil Court in such matters is not barred and the plaintiff has got an option either to file the suit before the Civil Court or before the Forum under the Industrial Disputes Act and hence the suit is maintainable and in support of his submission, he relies on the decision of this Court in THE TAMIL NADU ELECTRICITY BOARD REP. BY ITS SUPERINTENDING ENGINEER v. D.VASANTHA (1998 (II) CTC 542). 8. K.Sampath, J., in the decision referred above, has considered the question of jurisdiction of Civil Court in such matters. In the facts of the case relating to the decision referred above, the principles of natural justice had not been followed by the Management in issuing the show cause notice and in those circumstances, the learned Judge has held as follows:- https://hcservices.ecourts.gov.in/hcservices/ "Para 14. I am satisfied that the problem in the present case arose out of a right under the general or common law and not under the Industrial Disputes Act and the party had a right to choose between the two forums. The complaint in the present case is with regard to failure of principles of natural justice. The lower Appellate Court has found that the principles of natural justice had been thrown overboard by the appellant in issuing the show cause notice. In my view, having regard to the established legal position, it has to be held that the Civil Courts jurisdiction is not barred. Factually it has been found by the lower Appellate Court that the respondent had not been given adequate opportunity to examine her witnesses and to cross-examine the witnesses on the side of the appellant. She had not been given the copy of the complaint. She had not been given the copy of the report alleged to have been obtained by the Forensic Science Laboratory. All these aspects had been held to have vitiated the proceedings against her. I have also gone through the enquiry proceedings and I find that the authorities had not acted properly or with a sense of justice." 9. In the present case, the plaintiff has sought for two declarations, one declaring the order passed by the Chief Engineer, dated 8.6.1992 and the subsequent orders of the defendant dated 8.9.1992 and 17.10.1992 are valid and binding and the other to declare the order passed by the defendant dated 15.4.1993 as illegal, null and void and for consequential orders of injunction. The grievance of the plaintiff is that his seniority was fixed without considering the Board Proceeding 66 dated 1.2.1985 or in other words, the defendant has not followed the Board Proceedings and the Service Regulations of the Tamil Nadu Electricity Board in fixing the seniority of the plaintiff. There is no allegation of violation of principles of natural justice in the plaint and the dispute involved is only with regard to the rights and liabilities created by the Board Proceedings, standing orders and service regulations. 10. The Supreme Court in the celebrated decision in THE PREMIER AUTOMOBILES LTD. v. KAMLAKAR SHANTARAM WADKE AND OTHERS (AIR 1975 SUPREME COURT 2238) has laid down that a dispute involving the enforcement of rights and liabilities created by Standing Orders has necessarily got to be adjudicated only in the forums created for that and the Civil Courts have no jurisdiction to entertain such suits. For better appreciation, the relevant portion in the above decision is extracted below:- https://hcservices.ecourts.gov.in/hcservices/ "Para 26. Thus a dispute involving the enforcement of the rights and liabilities created by the certified Standing Orders has necessarily got to be adjudicated only in the forums created by the Industrial Disputes Act, provided, of course, that such a dispute amounts to an industrial dispute within the meaning of sections 2(k) and 2-A of the Industrial Disputes Act or such enactment says that such dispute shall be either treated as an industrial dispute or shall be adjudicated by any of the forums created by the Industrial Disputes Act. The Civil Courts have no jurisdiction to entertain such suits. In other words, a dispute arising between the employer and the workman/workmen under, or for the enforcement of the Industrial Employment Standing Orders is an Industrial Dispute, if it satisfies the requirements of section 2(k) and or section 2-A of the Industrial Disputes Act and must be adjudicated in the forums created by the Industrial Disputes Act alone. This would be so even if the dispute raised or relief claimed is based partly upon certified Standing Orders and partly on general law of contract." 11. As already seen, the plaintiff has sought for fixing his seniority as per the Board's proceedings and service regulations and the remedy lies only in the Forum created by the Industrial Disputes Act and the civil suit is not maintainable. Hence the judgment and decree of the lower appellate Court are liable to be set aside. The substantial questions of law are answered accordingly. 12. In the result, the second appeal is allowed and the judgment and decree of the lower appellate Court are set aside and the suit is dismissed. However, there shall be no order as to costs. Sd/- Deputy Registrar. /true copy/ Sub Asst. Registrar. vks https://hcservices.ecourts.gov.in/hcservices/ To 1.Principal District Judge, Villupuram. 2.Principal District Munsif, Villupuram. 3.Section Officer, V.R.Section, High Court, Madras. 1 cc to Mr.N. Muthusami, Sr. 46239 S.A.No.69 of 1998 KSK (CO) kk 10/9 https://hcservices.ecourts.gov.in/hcservices/