IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. <<>> :: O R D E R :: Rajasthan State Mines & Mineral Ltd. & Ors. Versus Rock Phosphate Mazdoor Sangh (Intuc) & Anr. S.B. CIVIL REVISION PETITION NO.65/2008. Date of Order :: 13th October 2008 HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.M.R.Singhvi ] Mr.Sunil Bhandari ], for the petitioners. Mr.M.S.Singhvi ] Mr. Vineet Dave ], for the non-petitioner No.1. .... Reportable BY THE COURT: This revision petition is directed against the order dated 12.02.2008 as passed by the Civil Judge (Junior Division) Udaipur City-North, Udaipur in Civil Suit No.13/2008 whereby the learned Trial Court has rejected an application moved by the defendants-petitioners under Order VII Rule 11 of the Code of Civil Procedure [‘CPC’]; and, while overruling the objection of the petitioners on the jurisdiction of the Civil Court 1 to deal with the matter, has held that the suit in question is triable by the Civil Court. The suit aforesaid has been filed by the plaintiff-non- petitioner No.1 Rock Phosphate Mazdoor Sangh said to be a Trade Union registered under the Trade Unions Act, 1926 [‘the Act of 1926’] while arraying the petitioners as defendants Nos.1 to 3 and the State of Rajasthan as defendant No.4 essentially on the submissions that the defendant No.1 is a registered company and an undertaking of the State Government having several mines including those at Jhamarkotda; that the plaintiff being the representative of the workmen employed at the said Jhamarkotda mines and at the corporate office of the company, was a recognised union since the year 1970 and more than 90% of such workmen were its members; that as per the written consent of the workmen, the defendants had been deducting the monthly contribution payable to the plaintiff union from their wages and were remitting the same to the plaintiff. It has been alleged in the plaint that due to the political differences with the ruling party in the State, the efforts were made to malign the plaintiff union but the plaintiff maintained its hold and succeeded in the elections held on 29.11.2007. According to the plaintiff, on 01.12.2007, certain amendments were made in its constitution in the General Body meeting and such amendments were duly notified to the Registrar of Trade Unions that included increase 2 in monthly contribution of the members from Rs.10/- per month to Rs.21/- per month. While reiterating that in accordance with the mutual agreement, the defendants were legally and validly deducting monthly contribution from the wages of such members of the plaintiff union who had voluntarily submitted a written consent therefor, it is maintained that such deducted amount was being paid to the plaintiff and had been remitted until the month of November 2007. The plaintiff has further averred that the enhancement in the monthly fees was duly notified to the defendants with the written consent of 851 mines workers and 178 corporate office workers; that thereupon, the defendants published general notices at both the places inviting objections; and for no objection having been filed, sanction was issued for such deductions in the wages of the month of December 2007 as were payable in the month of January 2008; and contribution of 178 members working in the corporate office was indeed deducted and remitted to the plaintiff union through cheque No.3738 dated 02.01.2008. The plaintiff has thereafter levelled allegations that the persons who could not otherwise cause harm to the plaintiff union misguided the Mines Minister and got issued a fax message on 26.12.2007 directing stoppage of such contribution and thereupon the defendant No.3 has stopped making such deduction altogether. According to the plaintiff union, immediately upon noticing such facts, a protest petition 3 was submitted to the defendant No.1 and although the defendants also sent a report to the Hon’ble Minister clarifying that the deductions were justified yet, they were refusing to deduct such contribution from the wages payable for the month of January 2008. The plaintiff has stated several grounds to assert that such an action on the part of defendants was improper and illegal and that the plaintiff was entitled to have the defendants compelled to make such deductions and to remit the amount to it. The plaintiff has also stated that the dispute having arisen because of unnecessary and illegal interference of the State Government, the State was also impleaded as party defendant; and looking to the circumstances, an application under Section 80(2) CPC was also moved. The plaintiff has prayed for the reliefs in the nature of perpetual injunction against the defendants that they should not create any obstruction in the working of the plaintiff union, should not deny appropriate deductions from the payment of the workmen, should continue to make such deductions, and should remit the amount to the plaintiff. It has also been prayed that by way of mandatory injunction, the defendants be directed not to discontinue with the deductions at the enhanced rate and the deductions not made in the earlier month be also directed to be made in the ensuing months. It has further been prayed that the defendants be restrained 4 from adopting the pressure tactics or doing anything with political malice and the recognised union i.e., the plaintiff, be permitted to continue with its activities without obstructions. In the suit aforesaid as filed by the plaintiff-non- petitioner No. 1, seeking the reliefs of perpetual and mandatory injunction, the petitioners-defendants Nos. 1 to 3 moved the application under Order VII Rule 11 CPC and submitted that the claim as made in the plaint by the plaintiff union, of deduction of enhanced amount of contribution from the wages of the workmen, was covered by Section 7 (2)(kkk) of the Payment of Wages Act, 1936 ['the Act of 1936']; and when the defendants were not agreeing to such demand, it were an industrial dispute that could only be raised under the Industrial Disputes Act, 1947 ['the Act of 1947']. The defendants-petitioners contended that deduction of monthly contribution from the wages was not a civil right and hence, the Civil Court had no jurisdiction to take cognizance of this suit and the same being barred by law, the plaint was required to be rejected. The application so moved by the petitioners came to be rejected by the learned Trial Court by its impugned order dated 12.02.2008. The learned Trial Court has referred to Section 2 (k) of the Act of 1947 and has also referred to Sections 15 and 22 of the Act of 1936 and has observed that the present suit was only related to the claim of deductions on the basis of the 5 written consent of the members of the Union and such a matter was not barred under the Act of 1936 and was cognizable by the Civil Court under Section 9 CPC. The decision of the Hon'ble Supreme Court in the case of The Premier Automobiles Ltd. Vs. Kamlakar Shantaram Wadke and others: AIR 1975 SC 2238 as cited on behalf of the defendants was distinguished by the learned Trial court with the observations that the said matter related to the payment under an incentive scheme for the labourers and of alteration in service conditions and such was not a matter involved herein. Aggrieved, the petitioners have preferred this revision petition under Section 115 CPC Assailing the order aforesaid, learned counsel for the defendants-petitioners has referred to the plaint averments, the provisions of the Act of 1947, the Act of 1936, and the Act of 1926 and so also several decided cases and strenuously contended that by way of the present suit, the plaintiff essentially seeks enforcement of such rights that are not ordinarily civil rights but are emanating from and under the Industrial Dispute Act, 1947 and its sister enactments; and, therefore, according to the learned counsel, the suit in question is not cognizable by the Civil Court. Learned counsel contended that the claim as sought to be made by the plaintiff in its capacity as a trade union is essentially the right as recognised by the Payment of Wages Act, 1936; and reading 6 of the said enactment with Section 7-A coupled with item No. 1 of the Third Schedule to the Act of 1947 and further with Section 2 (ra) coupled with items Nos. 2 and 13 of the Fifth Schedule to the said Act of 1947 makes it clear that the rights as claimed and the grievances as stated are specifically covered under the said provisions and, therefore, could only be agitated and claimed under the Act of 1947, for being essentially leading to an industrial dispute as defined in Section 2 (k) of the Act of 1947. Apart from principal reliance on the principles enunciated by the Hon'ble Supreme Court in Premier Automobile's case (supra), learned counsel for the petitioners has also referred to and relied upon the decisions in the cases of Krishnan & Anr. Vs. The East India Distilleries and Sugar Factories Ltd. Nellikuppan & Anr.: AIR 1964 Madras 81, The Nippani Electricity Co. Pvt. Ltd. and another Vs. Bhimarao Laxman Patil and others: 1968 LIC 1571 (Mysore), The Pigment Lakes & Chemical Manufacturing Co. Pvt. Ltd. Vs. Sitaram Kashiram Konde: 1970 LIC 115 (Bombay), Jitendra Nath Biswas Vs. M/s Empire of India & Cyclone Tea Co. & Anr.: (1989) 3 SCC 582, Rajasthan State Road Transport Corporation & Anr. Vs. Krishna Kant & Ors.: (1995) 5 SCC 75, and Rajasthan State Road Transport Corporation & Ors. Vs. Zakir Hussain : 2005 SCC (L&S) 945. Learned counsel submitted that it cannot be said that because of alleged refusal to make deductions from the wages, the 7 plaintiff stands denied of any such civil right that could be enforced through a Civil Court by way of injunction. Learned counsel has also referred to the fact that in the State of Rajasthan, by way of amendment to the Industrial Disputes Act, 1947, Chapter II-B has been inserted specifically in regard to trade unions and has contended that such an amendment has a material bearing on the issue that the Civil Court shall have no jurisdiction to deal with the matter in question. Learned counsel submitted with reference to the decision in the case of Chief Engineer, Hydel Project & Ors. Vs. Ravinder Nath & Ors.: (2008) 2 SCC 350 that the question of bar of jurisdiction could be raised at any stage of proceedings. It is submitted that the claim as made by the plaintiff trade union when taken to the extent of the allegations of unfair labour practice, it becomes the subject matter of Industrial Disputes Act and even when referable to the sister enactments like the Trade Unions Act, the Payment of Wages Act etc., the suit before the Civil Court would remain barred by necessary implication. On the other hand, the learned counsel for the non- petitioner No.1-plaintiff has again referred to the plaint averments and submitted that the essential cause of action in the present case has arisen because of the unauthorised interference by the State Government in the matter and because of the action as taken by the petitioner company on 8 account of such interference; and, according to the learned counsel for the plaintiff, the suit based on such a cause is only of the jurisdiction of a Civil Court. Learned counsel submitted that the right as claimed by the plaintiff trade union is not a right claimed under the Industrial Disputes Act and not all the aspects mentioned in the Third and Fifth Schedules to the Act of 1947 would ipso facto partake the character of an industrial dispute so as to oust the jurisdiction of the Civil Court. Learned counsel emphasised that merely because the claim made by the plaintiff union incidentally touches the provisions as contained in the Act of 1947, it does not become an industrial dispute for the purpose of the jurisdiction of the Courts. Learned counsel submitted that no such right has been claimed in the suit that falls within the four corners of the Act of 1947 but the right claimed by the plaintiff union is about such deduction for the purpose of contribution as is required to be made by the defendants and is being illegally denied. Learned counsel yet further submitted that in the plaint, the grievance has specifically been stated of the State Government's unauthorised interference in the matter and the State has also been joined as defendant No.4; and in this matter, only the Civil Court shall have jurisdiction and not the Labour Court or the Industrial Tribunal under the Act of 1947. Learned counsel has referred to and relied upon the decisions in Borosil Glass Works Ltd. Employees' Union Vs. D.D. Bambode & Ors.: 9 (2001) 1 SCC 350, and Rajasthan State Road Transport Corporation & Ors. Vs. Mohar Singh: (2008) 5 SCC 542. Learned counsel further submitted that the arguments raised with reference to Chapter II-B of the Rajasthan Amendment to the Industrial Disputes Act are hardly of any consequence so far the subject matter of the present suit is concerned. Learned counsel also submitted that the petitioners are not entitled to raise such pleas that were not even placed for consideration before the learned Trial Court; and has referred to the decision in Pfizer Ltd. Vs. Mazdoor Congress & Ors.: (1996) 5 SCC 609. According to the learned counsel for the plaintiff, the dispute of the present nature is essentially referable to the rights and remedies in common law and is exclusively triable by the Civil Court and then, for it being a tripartite dispute, recourse cannot be had to the remedies under the Industrial Disputes Act. Learned counsel submitted that if at all it is stretched to be named as an industrial dispute, the remedies under the Act of 1947 could, at best, be treated to be alternative but not of bar of the jurisdiction of the Civil Court. Learned counsel for the petitioners rejoined with the submissions that a reading of the plaint averments makes it clear that impleadment of the State Government in this litigation was only a camouflage and not even a primary proof has been placed on record to support the allegations about the 10 interference of the State Government; and though some oblique reference has been made to the communication by the Mines Minister but the said Minister has not been joined as a party to the suit. Learned counsel has referred to the decision in Chandra Prakash Singh & Ors. Vs. Chairman, Purvanchal Gramin Bank & Ors.: 2008 AIR SCW 1854. Learned counsel emphasized on items Nos. 2 and 13 of the first part of the Fifth Schedule to the Act of 1947 and submitted that the substance of the dispute being covered therein, the suit in question is not of the jurisdiction of the Civil Court. Having given a thoughtful consideration to the rival submissions and having examined the plaint averments with reference to the law applicable, this Court is clearly of opinion that this revision petition remains bereft of substance and deserves to be dismissed. The relevant part of Section 9 of the Code of Civil Procedure, providing jurisdiction to the Civil Courts to try all suits of civil nature unless expressly or by implication barred, reads as under:- “9. Courts to try all civil suits unless barred.- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.” It remains trite that the provisions excluding jurisdiction of Civil Courts and the provisions conferring jurisdiction on other Authorities and Tribunals are strictly construed and the 11 exclusion of jurisdiction of Civil Court is not readily inferred. The principles in this regard have been noticed by the Hon’ble Supreme Court in Mohar Singh’s case (supra) as under:- ''21. We may in this behalf profitably notice the following excerpts from Principles of Statutory Interpretation (11th Edn.) by Justice G.P.Singh: '' ‘It is a principle by no means to be whittled down' and has been referred to as a 'fundamental rule'. As a necessary corollary of this rule provisions excluding jurisdiction of civil courts and provisions conferring jurisdiction on authorities and tribunals other than civil courts are strictly construed. The existence of jurisdiction in civil courts to decide questions of civil nature being the general rule and exclusion being an exception, the burden of proof to show that jurisdiction is excluded in any particular case is on the party raising such a contention. The rule that the exclusion of jurisdiction of civil court is not to be readily inferred is based on the theory that civil courts are courts of general jurisdiction and the people have a right, unless expressly or implied debarred to insist for free access to the courts of general jurisdiction of the State. Indeed, the principle is not limited to civil courts alone, but applies to all courts of general jurisdiction including criminal courts. The rule as stated above relating to strict construction of provisions excluding jurisdiction of courts of general jurisdiction was recently expressly approved by the Supreme Court.’’ The case of Nippani Electricity Co. (supra) has otherwise no application to the present case because therein the workmen attempted to challenge the notices of retrenchment issued to them as being not bona fide and so also illegal and invalid for having been issued against the provisions of Sections 25-F and 25-G of the Act of 1947, and the claim being really an industrial dispute, jurisdiction of the Civil Court to deal with such a dispute was held excluded by implication; however, the principles governing the determination of the question as to how far the jurisdiction of 12 ordinary Civil Court is taken away with respect to the matters entrusted to the special Tribunal have been noticed in the said decision and could be usefully read for the present purpose as under:- ''12. Mr. Mulla in his Code of Civil Procedure, 13th Edition, under the heading ''Tribunals and jurisdiction of civil Courts'' while observing that the question how far the jurisdiction of ordinary civil Courts is taken away with respect to matters which are entrusted to special tribunals constituted by the Legislature has been subject matter of several decisions in recent times, states the principles governing the determination of this question as follows: 1. Where the statute re-enacts a right existing at common law and provides a special form of remedy therefor, the jurisdiction of the civil Court, to deal with the matter is not excluded unless the statute says so expressly or by necessary implication. 2. So also where the statute creates a new right but provides no special remedy therefor, it can be enforced in the ordinary civil Courts. 3. But where a statute creates a new right not existing at common law and specified a particular mode in which it is to be enforced, it bars by implication the jurisdiction of civil Courts. 4. Even when the jurisdiction of civil Courts is excluded they would have jurisdiction to examine into cases where the provisions of the statute have not been complied with or where the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure, or of natural justice.'' In the context of the industrial disputes dealt with by the Act of 1947 and as to how far the jurisdiction of Civil Courts is to be treated excluded in relation to such matters, the Hon’ble Supreme Court has explained the position of law in the case of Premier Automobiles (supra) as under:- ''9. It would thus be seen that through the intervention of the appropriate government, of course not directly, a very extensive machinery has been provided for settlement 13 and adjudication of industrial disputes. But since an individual aggrieved cannot approach the Tribunal or the Labour Court directly for the redress of his grievance without the intervention of the government, it is legitimate to take the view that the remedy provided under the Act is not such as to completely oust the jurisdiction of the civil court for trial of industrial disputes. If the dispute is not an industrial dispute within the meaning of Section 2(k) or within the meaning of Section 2A of the Act, it is obvious that there is no provision for adjudication of such disputes under the Act. Civil Courts will be the proper forum. But where the industrial dispute is for the purpose of enforcing any right, obligation or liability under the general law or the common law and not a right, obligation or liability created under the Act, then alternative forums are there giving an election to the suitor to choose his remedy of either moving the machinery under the Act or to approach the civil court. It is plain that he can't have both. He has to choose the one or the other. But we shall presently show that the Civil Court will have no jurisdiction to try and adjudicate upon an industrial dispute if it concerned enforcement of certain right or liability created only under the Act. In that event Civil Court will have no jurisdiction even to grant a decree of injunction to prevent the threatened injury on account of the alleged breach of contract if the contract is one which is recognized by and enforceable under the Act alone.” In the said case of Premier Automobiles, after an elaborate discussion with an extensive survey of the case law on the subject, the Hon’ble Supreme Court was pleased to enunciate the principles applicable to the jurisdiction of the Court in relation to an industrial dispute as follows:- “23. 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 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. 14 (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. 24. We may, however, in relation to principle No. 2 stated above hasten to add that there will hardly be a dispute which will be an industrial dispute within the meaning of Section 2(k) of the Act and yet will be one arising out of a right or liability under the general or common law only and not under the Act. Such a contingency, for example, may arise in regard to the dismissal of an unsponsored workman which in view of the provision of law contained in Section 2A of the Act will be an industrial dispute even though it may otherwise be an individual dispute. Civil Courts, therefore, will have hardly an occasion to deal with the type of cases falling under principle No.2. Cases of industrial disputes by and large, almost invariably, are bound to be covered by principle No. 3 stated above.” The position of law has been explained by the Hon'ble Supreme Court in the recent decision in Mohar Singh's case (supra) wherein, again after a reference to the substantial number of decisions on the subject, including those in Premier Automobiles, Krishna Kant, and Zakir Hussain (supra), the