PETITIONER RESPONDE s W1 ~ w‘ia-‘Q'gvv' 0x\“.‘«""£‘.‘-L'. -" _.~,."5% .".‘.\.&" V x. v3" kg‘ $O‘ 3x0“ 3 2. ,. Johan Ram, S P. No.21 1232; Department VERSI IS Steel Authon‘ fStEel Plant thro ty of India Limited ‘ , ‘ Bhilai (Chhattisgarh) Town Administrat Distt. Durg. (CG) /o Man Singh, Civil Maintenance Township, Rajhara, P.S.Rajhara, D‘istt. Durg. (C.G.) or 1.0.C. Rajhara, 6" V RH PETITION CONSTITUTION UNDER ARTICLES OF INDIA 21224 THE KR £ KWmmnen—As mmahoxe‘ .. g HIGH COURT OF JUDICATURE AT BILASPUR (C.G) Writ Petition No.101012004 Johanram Vs. Steel Authority of India and another ORDER Post for 25.0 1.2005 Sd/- Sunil Kumar Sinha Judge f \ ‘ L ‘ \ J ‘ W { ‘ ‘ \ HIGH COURT OF JUDICATURE AT BILASPUR (C.G) Writ Petition No.1010/2004 Johanram Vs, x1 Sftel Authority of India and anbthe] Shri Ashok Vaishnav, counsel for the pcu'u‘oner. Shri P.Diwakar,‘ Senior Advocate With Ku.Pn‘tha Ghoshal, for thc mspondents. ORDER ($012005) Sunil Kuma: Sinha, J: By this writ petition med under Article 226/ 227 of the Constitution of India, the petitioner has substantially challenged the validity of the impugned order dated 28.2.2004 (Annexure P-9) passed in Misc.Civi1 Appeal No.5] 2003 by the Additional District Judge, Balod, District Durg (CG). (2) The facts of the case axe that the peh’h’oner hled a civil suit in the Court of C1v1l Judge, Class-ll, Balod for $e relief of declaration that the actual date of birth of the petimner is 09.11.1948. He further claims that according to the sm'd date of birth, he is entitled to work to the age of 60 years (the age of supemnnuation) and thereafter he should be miired‘ on 30.11.2008. A relief of permanent injuncu'on was also sought for by the petitioner praying that the defendants should be resiraiued mm superannuating the petitioner on 31.3.2003. A copy of the plaint is ’m as Anncxure P—3. The case of the petitioner is that he was appointed as a labour on 27.3.1W3 and thereafter he was appointed as a regular employee in the Civil Maintenance Depaxtment of Town Administration, Rajahm‘on 17.1.1979. Initially, by mismke, his date of birth was recorded as 26.3.1938. At the time of his mgular appointment on 17.1.1979, ibis date of birth was again recorded as 18.1.1952 which was also inconect. In fact, his date of birth is 09.11.1948 and according to the age of superannuation that is ~60 years, he would retire on 30.11.2008. When the notice for retixement on 31.3.2003 was received, the cause of action arose and the petitioner med the instant suit. The peu’tioner also med application for temporary injunction under order 39 Rule 1 8r. 2 of the Code of Civil Procedure praying that the defendants should be restrained horn en‘ecting the retirement of the plaintin'I petitioner on 31.3.2003 and the en'ect and operation of the order dated 28.2.2003 shouldalso he stayed. (3) The learned trial Court after hearing the parties, allowed the application for temporary injunction :vide order dated 29.3.2003. It was directed that the petitioner shall not be retired in pursuance of the order dated 28.2.2003. Against the aforesaid order passed by the trial Court, the defendants (respondents herein) nled a Misc.Appeal before the Court of Additional District Judge, Balod vide M.A.No.5/2003. The said i -3- Misc. Appeal was &a11y decidcd by the impugned order datzd 28.22004 and the wme was allowed and the order of temporaly injunction granted on 29.3.2003 by the trial court was set aside. The main contention mised by the counsel for the respondents befoxe the Miscellaneous Appellate Court was that in fact, the actual dispute raised by the plaintiE was a dispute in mlation to superannuation from the service and the ‘ same comes within the meaning of an “industrial dispute”, therefore, the jurisdiction of the civil court was barred. Since the Civil Court’s jurisdiction was baned, therefore, the suit itself was not maintainable and. no orders of temporaiy injunction would have been passed by the trial Court. (4) Appreciating this contention, the appellate court held that the dispute in hand is in fact, an indushial dispute and for this, the civil courts are having no jurisdiction to entertain a suit, therefore, the petitioner has no prima facie case in his favour. It is against the said order of the appellate Court, the plaintm‘] petitioner has med this petition, which is ultimately a petition under Article 22.7 of the Constitution of India. (5) r Learned counsel for the petitioner submits that the appellate Court committed an error of‘iaw‘ 33! holding that a dispute regarding correction of date of birth was an industrial dispute, therefore, a civil suit was not maintainable. In fact, the appellate Court gave a hnding in the preliminary stage of grant of injunction in relation to maintainability of the suit . e? even without naming any issue on the same and without -11, £01ding any opportunity of being heard to thE parties concerned. He pmyed for setting aside the cider of appellate Court. (6) The respondents have Eed their return in this case. While denying the eontenu'ons raised by the petiu'oners on merits, the respondents have also taken an objecu'on mgaxding maintainability of this writ petition. It has been contended that the writ petition against the order referred to above, is not - maintainable before this Court. On merits, the submissions am that in fact, the civil courts axe having no jurisdiction to entertain such a dispute raised between the employer and employee and the dispute being covered within the dennition of industrial dispute must go befoxe the appmpriate forum and the civil suit was not maintainable. The Miscellaneous Appellate Court has rightly held that since the civil suit was not maintainable, therefore, there was no prima facie case in favour of the petin'oners and the injunction application has rightly been dismissed by it. (7) I have heaxd learned counsel at length and have also perused the recordsnled along—withrthe writ petition. ‘8) First of all, the question of maintainability of the petition is being considered. Learned counsel for the respondents submits that the petitioner without exhausting the form available under the law for challenging the order of Additional District Judge, has directly approached this Court and a Writ petition of such a nature is not maintainable. He referred to the provision under section 1 15 of the Code of Civil Pmceduxe and also placed reliance-on the preliminaly objection taken in para-1 of the retuxn. On the said point in issue, learned counsel for the peu'u'oner submits that as an en‘ect of coming into operation of the amended provisions of Section 115 of C.P.C., now the parties an: left with no other remedy except to me a writ petition before the High Oourt under Article 227 of the Consn'tuu‘on of India. He submits that since a revision under section 115 of the C.P.C. is barred, the peu'n'oner was having no remedy except to nle this writ petition and this writ petition would be maintainable in View of the above amended provisions of law. (9) The law on the point is well settled. Hon’ble the Apex Court has held in the matter of Shiv Sham Coop. Houslnq S N —Vs- Swami Developers and amen, reported in {2003) 6 80C Pg.659 that a plm'n reading of Section 1 15 as it smnds makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given nnality to suit or other proceeding. If the answer is “yes” then the revision is maintainable. But on the contrary, if the answer is “no” theifthe revision is not maintainable. Therefore, if the impugned order is interim in nature or does not nnally decide the lis, the revision will not be maintainable. (Please see para 32 of the judgment). The apex Court mrther held in the matter of Mu Dev Rd —Vs- Ram Chander Rat and others reported in {2003) 6 SCC 675 that section 115 of C.P.C., as amended by the Act 46 of 1999, does not now permit a revision petition being med against an order disposing of an appeal against the order of the trial Court Whether coxmrming, reversing or modifying the order of injunction gmnted by the trial Court. The reason is that the order of the High Court passed either way would not have the en'ect of linally disposing of the suit or other proceedings. The exercise of revisional jurisdiction in such a case is taken away by the substitution of the proviso to section 1 15(1) CPC by the said Amendment Act 46 of 1999. In the said situation, it has been further held by the Apex Court that the power of the High Court under Articles 226 and 227 of the Constitution of India is always in addition to mvisional jurisdiction conferred on it. The curtailment of revisional jurisdiction of the High Court u/s 115 of CPC by amendment Act 46 of 1999 does not take away and could not have taken away the constitutional jurisdiction of the High Court to issue a writ of certiorari to a civil court nor is the power of superintendence conferred on the High Court under Article 227 of the Constitution taken away or whittled; down. . The power exists, untrammelled by the amendment in Smé‘ction 115 CPC, and is available to be exercised subject to rules of self- discipline and practice which are well settled. (10) In the light of the above discussions and also in the light of the facts and circumstances of the case and the law laid down by the apex Court in the aforesaid two decisions, it is hv‘ apparant that after coming into force of the new amendment in the Code of Civil Proceduxe, an order passed in Misc. Appeal by the appellate Court against an order of grant or refusal of‘the injunction by the trial Court Will not be mvisable, therefore, the aggrieved party will have no remedy except to me a writ petition under the superintending jurisdiction of the High Comt under Aru'cle 227 of the Constituu‘on of India. In this vm‘w of the matter I am of the opinion that the preliminary objection taken by the respondents regarding maintainability of the wn't petin‘on has to be overruled and the same is overruled. The petition is held to be maintainable. (11) Now on merits, learned counsel for the petitioner argues that for the reliefs of the correction of date of birth, the civil jurisdicu'on will not be barred. He refers to a decision of the Apex Court reported in AIR 1991 s.c. Page 1546 (Ishgr Singh, Appetlant —Vs- Nationai Fertilizers and another, Respondentgl and argues that the maintainability of the suit has to be decided with reference to the date of institution of the proceedings and since on the date of institution of the suit, petitioner was not retired the suit would not have been held to be barred. (12) First of all, in the opinion of this Court the lower appellate Court has not decided the point of jurisdiction on merits. In fact, dealing with the matter while examining prima facie case in favour of the pen'tioner, the appellate Court has incidentally said that since the civil suit is barred before a civil t” wk court, therefoxe, a prima facie case is not made out in favour of the peu'u'oner and the trial Court en‘ed in law in gmnting injuncu'on in his favour. A melt refelence to the above amt on the question of maintainability of the suit cannot be said to be a decision on the point. In fact, it is an incidental ’ observation of the appellate couxt and the same is made mr the purposes of determining a prima facie case exisu'ng or not, in favour of the peu'tioner. (13) In Ishar Singh’s case, referred to above, the apex Court has held that the law is well settled that the matter which comes Within the purview of section 9 of, CVP.C. are maintainable in civil court. The apex Court has said that a suit for correcting the date of birth in the record would be maintainable. In fact, asking for correction ofthat type may be for various purposes and need not necessarily be connned to the question of claiming the relief available under the Industrial Disputes Act. The maintainability of the suit has to be decided with reference to the date of institution of the proceedings and since on the date when the suit was nied, none of the eventualities covered by section 2-A of the LD. Act happened, the petitioner could not have approached the~forum under the I.D. Act for relief and in the said situation the civil suit would not be barred by section 2—A of the LD. Act. ‘It has also been held by. the apex Court that if for part of the reliefs of the suit is maintainable in the forum where it has been laid, it is not open to the forum to shut out its doors to the suitor. In that view of the matter, so far as the relief of mc%cation of the records relating to date of birth is concerned, the civil court has jurisdiction to giant that relief. The Apex Court has also said that Where the employee stood superannuated even on the basis of corrected date of birth by the time, the civil suit came to be decided in his favour, the consequential reliefs could not be gianted y the civil courts. b (14) The apex court in the matter of The Premier Automobiles Lat, Appellants -Vs- Kandakar Shantaram Wadke and others, Respondents reported in Am 1975 sc 2238 also laid down the principles applicable to the jurisdiction of the Civil Court in mlation to an Industrial Dispute in the following manner : “(1) If the dispute is not an industrial dispute, nor does it relate to the enforoement of any other right under the Act the remedy lies only in the dm'l Court. (2) If the dispute is an industrial dispute arising out of a right or liability under me general or eommon law and not under the Act, the jurisdiction of the a‘m‘l Court is altemative, * leaving it to the election of the suitor concerned to choose his remedy for the relief whidi is competent to be granted in a particular remedy. \ V (3) If the industrial dispute relates to the enforcement of a nght‘ or an obligation created under the Act, then the only remedy ayailable to the suitor is lo get adjudication under the Act (4) If the right which is sought i0 be enforwd is a right created under the Act such as Chapter VA then the remedy for its enforcement is either section 33G or the raising ofan industrial dispute, as the case may be.” In point no. 1, it has been held that if the dispute is not an indusirial dispute nor does it relate to enforcement of any l other right under the Act, the remedy lies only in the civil Court. In fact, these am the guidelines of the Apex Court on the basis ofwhich, the civil court is to determine as to whether a dispute is covered under the dedm‘tion of an indusu'ial dispute and the suit would be barred under the provisions of section 2—A or 2(k) of the LD. Act or not. A considerau'on is also to be given to the date of hling of the suit and the position of employee on the said date. After going through the records, I am of the opinion that the decision on the point should have come after giving due opportunity of hearing to all the parties concerned. Merely saying incidentally while dealing with the matter to determine a prima facie case, the appellate court cannot say in the above manner that it has no jurisdiction to entertain the suit. This order is a superhcial order passed in one line without assigning any reasons for the same and the same cannot be upheld. (15) It is a settled law that the reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. Failure to give reasons amounts to denial ofjustice. (Please see‘Alexa'mler yacninegy mung Ltd. —Vs. erabtree‘1197‘2 LCR 120 which has been refen‘ed in case of Regional Manager,UP3RTC, ETAWAH and others -Vs- Hotl Lal reported in Am 2003 s.C. Pg.1462 wide para 10 ). V (16) The lower appellate Court has quoted the decision of the apex Court reported in 2002 Part-1 CGLJ 248 (Chandrakant d‘\‘ Tukaram Nikam & others ~Vs- ~MuniM Comtuuon of Ahmdabad & anathetg which is not applicable in the pmsent case. The very &'st para of the said decision shOWs that the matter was in relation to the Workmen of Ahmedabad' Municipal Corporation who had challenged the ordels of dismissal/removal mm service by $ing a civil suit. Admittedly, the suit in this case was hled after the dismissal/removal oniers were passed and the judgnent was distinguishable on this point. I (17) During the course of arguments, learned counsel for the petitioner submits that the petitioner has already been retired on 31.3.2004. It is very fairly stated that the order of temporary injunction and also relief of permanent injunction have become innuctuous. He also made a submission that the written statement in the matter has already been med by the respondents] defendants and the matter is pending before the trial Court. He further submits that the petitioner is a retired person and his case should be directed to be decided in accordance with‘law. t§ (18) In light of the aforesaid discussions and also in light of the submissions made at Bar, in the opinion of this Court the orders passed by the Courts below trial court as well as the >\. appellate Court are required to be set asuie Accordingly, they ‘ \\a1e set as1de The trial Court 1s dnected to dame an issue on a. -‘zv— the quest'on of maintainability of the suit and thereaftsr decide the same in accordance with law after giving due opportunity of hearing to both the parties. The peu'tion is allowed. Looking to the facts and circumstances of the case, there shall be no order as to the costs. t l Sdl- \ w t Sunil Kumar Sinha Judge lRaul