Case: The Premier Automobiles Limited Vs. Kamlakar Shantaram Wadke

the first appeal out of which this appeal arises, some more points were raised which are not specifically raised before us. One of the points whether the present suits is one for specific performance was faintly argued before us and the discussion made by us above would clearly show that there is no attempt on the part of the plaintiffs to claim specific performance of any particular contract. There is merely an attempt to prevent the employer from enforcing a particular settlement or contract. Besides the question whether the suit is one for specific performance, it was argued at considerable length before the learned single Judge that the payments contemplated under the incentive scheme are either bonus or payment in the nature of bonus and, therefore, covered by the provisions of the Bonus Act. The other point that was canvassed before the learned single Judge was that the workers who are neither members of the engineering Mazdoor Sabha or of the Association of Engineering Workers have no particular contract in their favour and could not have jointed the present plaintiff under the provisions of o. I. R. 8, Civil Procedure Code and no adjudication could be made in their behalf by resorting to the procedure laid down in O. I. R. 8. It is needless to point out that it has been held by the trial court as well as by the first appellant Court that the manner in which payments are made from year after year from 1966 till 1971 itself constitutes a contract and such a contract exists between all workmen, whether members of a particular union or not, and defendant No. 1-company. The third point that was canvassed was that the injunction that is granted by the trial Court is purely a temporary injunction and temporary injunction cannot form the subject-matter of the decree. All these contentions have been negatived by the first appellate Court and we need not consider them for the simple reason that none of them has been argued before us. (18) THE only other point that was pressed before us was that the injunction granted by the trial court would not fall under any specific provision of the Specific Relief Act, 1963. We do not see much substance in this argument. The Courts jurisdiction to grant injunctions is covered by the provisions of that Act. The provisions of S. 38 (1) or clause (d) of Sub-s. (3) could be properly invoked in the circumstances of the present case. The discussion made by us earlier in this judgment would show that the recurring claims and recurring breaches could not be sufficiently dealt with by the Industrial Disputes Act. An injunction of the type granted by the trial Court in this case would undoubtedly prevent a multiplicity of judicial proceedings which may have to be resorted to unless the implementation of the settlement of 1971 is prevented. It could not be said in this case that there is no contract at all between the employer and the employees who are being paid for years together. The attempt on the part of the employer-defendant No. 1 to enforce a new contract without the consent of the plaintiffs and other similarly circumstanced would amount to breach of the existing contract. Nobody suggest that the terms and conditions of service could not be changed by ushering in a new contract, settlement or award. The grievance of the plaintiffs is that without resorting to the procedure provided by the Act, a direct interference with the existing terms and conditions of service is resorted to by defendant No. 1, the appellant. We are, therefore, of the opinion that under the provisions of S. 38 (1) and clause (d) of Sub-s. (3) of that section it would be appropriate to grant the kind of injunction which has been granted in this case. (19) WE may incidentally note that there are cross-objections filed by respondents Nos. 1 and 2 original plaintiffs. Those cross-objections relate to certain observations which appear in the judgment of the learned single Judge. While dealing with the settlement of 1971 the learned single Judge observes that if the agreement dated January 9, 1971 could be styled as a "settlement," it would have the binding effect on all workmen who are not only members of defendant No. 2 union but other workmen as well who are not only members of defendant No. 2 union but other workmen as well who are not members of defendant No. 2 union. In fact the settlement is with defendant No. 2 union of which the plaintiffs are not the members and there are many others who are also not members of that union. This is only an incidental observation and could not legitimately form the subject-matter of cross-objections. However, Mr. Damania for the respondents-plaintiffs expressed apprehension that these observations might be used against him in some manner. When we looked at the provisions of the Act, we found that a proviso is now introduced after Sub-s. (1) of S. 18 by Maharashtra Amending Act No. 1 of 1972. The effect of the proviso is that when a settlement which is not arrived in the course of conciliation proceedings takes place with a recognised union under Sub-s. (1) of S. 18, it is now made binding not only upon the members of that union but also upon persons referred to in cls. (c) and (d) of Sub-s. (3) of S. 18. It is our surmise that perhaps these provisions were present in the mind of the learned single Judge when generalisation was made by him about the binding effect of the settlement. However, so far as the facts of this case are concerned, the proviso is not at all attracted and its provisions are not applicable to settlements either of 1966 or 1971. The learned single Judges observations are merely incidental, perhaps based upon amended provisions of S. 18 and would, therefore, have no binding effect at all on either party to this litigation.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is really not necessary to reiterate the position of law which is almost settled that all disputes of a civil nature must ultimately come before a civil Court for decision. The jurisdiction of the civil Court in respect of all civil matters is clearly stated in S. 9 of the Civil Procedure Code. If one wants to assert that that jurisdiction is taken away; it would be for him to so allege and prove it. The position of law in regard to jurisdiction of civil Courts has been unmistakably stated by the supreme Court in Abdul v. Bhawani, A. I. R. 1966 S. C. 1718. Not only it is for the party to allege want of jurisdiction and to prove it, but it is equally well settled that the statute ousting the jurisdiction of the civil Court must be strictly construed. The ouster of the civil Court could be either express or implied. Even when the jurisdiction is ousted in an express manner, it has been held that an examination of the scheme of the Act, the remedies it provides and the adequacy thereof as compared with the normal reliefs which could be claimed in a civil Court thus becomes relevant if not decisive. There have been recently several pronouncements of the supreme Court dealing with this subject and the learned single Judge, who disposed of the appeal, has referred to some of them. However, we find that the Supreme Court has dealt with the relevant decisions on the subject in Dhulabhai v. State of M. P. , A. I. R. 1966 S. C. 78, and has also summarised in its own way the result that follow from the survey of the case law in the filed. In Dhulabhais case after examining the various cases on the subject the then learned Chief justice of the Supreme Court speaking for the Court summarised his conclusions as follows (p. 89) :" (1) Where the statute gives a finality to the orders of the special tribunals the civil Court jurisdiction must be held to be excluded if there is adequate remedy to do what the civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provision 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 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 a 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 the tribunals constituted under that Act. Even the High Court cannot go into that question on a 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, as 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 authorities 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 inquiry. (7) An exclusion of the jurisdiction of the civil Court is not readily to be inferred unless the conditions above set down apply. "(7) IN view of the position of law in regard to jurisdiction of civil Courts that now prevails and so clearly been expounded by the Supreme Court, it would be necessary for us to examine the provisions of the Industrial Disputes Act, 1947 and decide whether the jurisdiction of the civil court in all or some matters and more particularly in respect of the type of relief which is theof the present suit, has been ousted. It is not argued before us, nor does it seem to be possible to argue, that the Industrial Disputes Act, 1947 expressly bars the jurisdiction of the civil Courts. The case would naturally fall under the implied ouster of jurisdiction. It is, therefore, relevant to examine the remedies and the scheme of the particular Act to find out the intendment and such examination might lead to a result which would be decisive. When an examination of this type is being done, it becomes 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 action in civil Courts are prescribed by the said statute or not. When the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") are so examined, we have to bear in mind the type of suit we are dealing with and the kind of remedy that is being asked for. Undoubtedly, this is merely a suit for injunction. A declaration was also sought for, but the trial Court found that looking to the words in which the declaration has been couched, it could not be and need not be granted. The trial court, therefore, merely proceeded to decide the right of the parties and on the conclusions reached, it has held that in the circumstances of the case a relief of injunction in a limited manner, though perpetual, is desirable and must be awarded. Though the objection raised on behalf of theNo. 1 is primarily to the jurisdiction of the civil Court, it is also a second limb of its argument that in the facts and circumstances of the case the plaintiffs have not made out a proper case for awarding them discretionary relief by the civil Court. It is not necessary for us to examine in any greater detail the facts which have been held proved by the two Courts, because we find that on the face of the record the plaintiffs have been able to make out a sufficiently convincing case. Since we find that this is a shorter point, we might dispose it of before the main question of jurisdiction is considered. [his Lordship after considering the evidence on the point,THE only impression one gets from the substantive provisions of the revised scheme which are directly injurious to the interests of the workers and are partly against statutory provisions of the act is that this must be a very suspicious affair between defendant No.and defendant no. 2 union. And that is the finding given by the trial Court and we are satisfied that on evidence and the circumstances of this case that is the proper finding. . . . If at all, therefore, the civil Court has any jurisdiction to entertain civil disputes, this case seems to us to be preeminently a fit case where that jurisdiction must be exercised in favour of the plaintiffs and against the defendants from enforcing the newargument in short is that the pith and substance must be borne in mind and when this is done, it would be apparent that the Legislature has provided an entirely separate machinery under the Act which enables a worker to obtain appropriate reliefs. Not only various tribunals provided by this Act are in a position to grant all the reliefs that a worker might claim but even the remedies provided in the sections referred to above are quite adequate and sufficient. When this argument is examined closely, we find that it is difficult to give any countenance to it. The scheme of the Act certainly shows that no express bar to the jurisdiction of the civil Court has been enacted in Chapter II. Chapter II provides the various authorities under the Act and in Chapter IIA the Act provides for a notice of change. If any service conditions are intended to be changed in respect of matters specified in the Fourth Schedule, it is not permissible to do so unless a notice of change contemplated by S. 9a has been given. It is not necessary to refer at this stage to the Governments power to exempt an employer under S. 9b from giving such a notice. Chapter III refers to the Boards, Courts and Tribunals to which the government may in its discretion refer an industrial dispute. Chapter IV provides for the procedure, powers and duties of the various authorities under the Act. Chapter V contains provisions in regard to strikes and lockouts. Chaptercontains provisions in regard toand retrenchment. Under Chapter VI various penalties have been provided for. Chapter VII contains miscellaneous provisions which include remedies like recovery of money due from an employer by an employee. Them follow the various Schedules. This in short is the scheme of the act.(11) IT would be appropriate now to examine whether S. 10 is capable of giving a workman all the remedies which are normally available in a Court of law and also making available all the reliefs which are claimable before a civil Court. Section 10 (1) in the first instance deals with an industrial dispute as defined by S. 2 (k). It is a dispute, in the context of the present case, between an employer on the one hand and the workmen on the other. In other words, a dispute which is collective in its form and essence is contemplated to be dealt with by S. 10. Section 10, at any rate, is not the provisions for catering to the needs of individual workers who have their individual rights to assert and enforce. This position would be amply clear from the provisions of s. 2a which provides an exception to S. 2 and by which an individual workman is given an individual right to raise an industrial dispute. Thecovered by S. 2a confines itself to the discharge, dismissal, retrenchment or otherwise termination of service of an individual worker. Short of this subject which is provided for by S. 2a any other industrial dispute must be a collective dispute and an attempt to enforce individual rights would not be covered by the expression "industrial dispute" as used in the Act. The appropriate Government must be first moved and the appropriate Government will pass an order in writing referring the dispute to the appropriate tribunal in case it is of the "opinion" that an "industrial dispute exists". The language of this section is plain and it contemplates subjective satisfaction of the appropriate Government and gives an unfettered discretion to it either to refer or to refuse to refer any dispute to any of the tribunals under the Act. It may further be noted that there is no procedure provided anywhere in the Act to challenge the opinion of the State Government which, in the circumstance, would be final and conclusive. Mr. Vimadalal argued before us that it has usually been the policy of the state Government, particularly in the interest of industrial peace, to refer all such disputes to the appropriate tribunals. When the question for examination is whether the Act provides for adequate remedies, the behaviour of the State Government from time to time would hardly be of any relevance. What we find is that if the formation of opinion goes against the workers and they are unable to say that the conclusion is either perverse or mala fide, they are left with no remedy of any kind to challenge that opinion. If that were so, it is difficult to say that the approach to the state Government under S. 10 is either adequate or sufficient remedy for the decision of the rights of workmen. In other words, there is no element of compulsion requiring the State government to refer every dispute raised by the workmen either individually or collectively to an appropriate tribunal under thewill at once point out that the reasons for which conciliation proceedings were not undertaken were obviously irrelevant and beside the point. The Supreme Court pointed out that the refusal by the government to make a reference must be based upon reasons which are germane to the question under consideration and they must not be extraneous. It is also pointed out by the Supreme Court that in a fit case where the decision is based on extraneous consideration, it would be open for the Supreme Court to issue a writ of mandamus but in that particular case pointed out that it would prefer to remand the matter for reconsideration in the light of its observations. It is the intention of the Legislature that where decisions under Ss. 10 and 12 are not either mala fide or perverse or extraneous there should be no dispute at all which requires consideration  It is difficult to imagine on the language of Ss. 10 and 12 that all possible disputes are comprised within these two sections and that a suit of the present nature where a certain unilateral mischief is sought to be controlled must also be deemed to have been covered by the wording of S. 10 or 12 of the Act.(14) WE may point out that what the plaintiffs in this case are seeking to do is to prevent the implementation of the settlement dated January 9, 1971 as against those who have not already agreed to it or who are not willing to subscribe to that settlement hereafter. The general scheme of the Act shows that there is a provision that where a settlement has ceased to have a binding force either by efflux of time or by reason of termination of the settlement by way of notice served under S. 9a, the settlement or the contract of service has got to continue and shall be the basis of payment unless a new contract of service is replaced. It is not permissible for an employer to change unilaterally the terms and conditions of service without following the due procedure under the Act and to begin to enforce the changed terms and conditions whether the employees agree to it or not. We do not find any provision in the Act, and none has been pointed out to us, which enables a workman to prevent such unilateral mischief on the part of an employer. Reference was made in this connection to a judgment of a learned Judge of the mysore High Court in Nippani Electricity Co. (Pvt.) Ltd. v. Bhim Rao Laxman Patil, [1972I l. L. J. 69], and a Division Bench judgment of this High Court in Pigment Lukes, etc. v. Sitaram, (1968) 71 Bom. L. R. 452. In the former case, the learned single Judge was considering the case of a workman who were retrenched and who raised the dispute that the retrenchment was not bona fide. In the latter case, the Division Bench was dealing with the case of workman whose services were terminated because of the closure of the factory and who was noting of the factory. We do not think that these two decisions or the ratio thereof can be of any assistance to the presentNo. 1, in the present case. Retrenchment or reinstatement in service under certain circumstances form theof chapter VA and remedies are also provided by that chapter. In both the judgments referred to above the question that fell for consideration was whether the relief of declaring that a person continues to be in service or should be reinstated in service could be granted by a civil Court or not. At common law for a breach of contract of service there does not seem to be any remedy available by way of reinstatement or by way of declaration that a person continues to be in the service of the employer, except those cases which are covered by Art. 311 of the Constitution. However, how to deal with a retrenched worker and whether to reinstate him under certain circumstances form theof specific legislation contained in Chapter VA of the Act. In the circumstances, therefore, it is clear that the civil Court could have no jurisdiction to entertain suits of the type which were involved in those two judgments, The particular principle that where a special Act creates a special right and also provides adequate remedy for enforcement thereof the jurisdiction of the civil Court must be impliedly held to have been barred would undoubtedly come into play and more so when the civil Court was otherwise unable to grant relief at common law which was sought by the plaintiffs in those suits.(15) THIS would bring us to the consideration of the provisions of S. 33c which are referred to as providing sufficient and adequate remedy to the present plaintiffs. A close examination of(1) and (2) of S. 33c would show that the Authority referred in S. 33c is more in the position of an executing Court rather than an Authority seized of a wider jurisdiction to decide all complicated questions of law and fact involved in the dispute. The very opening clause of(1) of S. 33c, shows that the claims dealt with are primarily claims for money due to a workman from an employer under a settlement or an award or under the provisions of Chapter va. For the purpose of making recovery under the provisions of(1) of S. 33c, the workman has first to apply to the appropriate Government and the appropriate Government is to be satisfied that the money is in fact due to the workman. This again is dependent on the subjective satisfaction of the appropriate Government and the compulsive element for making the appropriate Government issue the requisite certificate is wanting. The decision of the appropriate Government to refuse to issue a certificate is also not challengeable in a Court of law or elsewhere by any proceeding. Even under(2) of S. 33c it would appear that two conditions have got to be satisfied. The first condition is that the workman must be entitled to some money or some benefit which is capable of being computed in terms of money and the second condition is that if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, them the question may, subject to any rules that may be made under the Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government. It was emphatically argued before us that under(2), at any rate, it would have been possible for the present plaintiffs to apply for recovery of money due under the earlier settlement and further claim immunity from the enforcement of the second settlement of 1971. Some reliance was placed upon the observations of the Supreme Court in bombay Gas Co. v. Gopal Bhiva, [1963II L. L. J. 608]; So far as this judgment of the Supreme court is concerned we are of the view that the real scope of the tribunal under S. 33c is to be found in its observation that the proceeding contemplated by S. 33c (2) are, in many cases, analogous to execution proceedings and the Labour Court which is called upon to compute in terms of money the benefit claimed by an industrial employee is, in such cases, in the position of an executing Court and to the extent as an executing Court is in a position to interpret the decree and not go behind it, the position of tribunal seems to have been properly indicated. It is only incidental question of interpretation that can be handled by the Courts under S. 33c jut as an executing Court can undoubtedly interpret a decree and find out the real meaning thereof. Essentially, however, only money claims are being dealt with under both theof S. 33c. We have already pointed out that under(1) of S. 33c it is again the subjective satisfaction of the appropriate Government which must be brought about before a certificate could be issued. The remedy of recovery under(1) is under the terms of thatwithout prejudice to any other modes of recovery which may be available to the particular workman. It is impossible to say in the circumstances that the only remedy that is provided by the Legislature to a workman is under(1) of S. 33c so that the other modes of recovery would be deemed to have been barred. On the contrary, the plain language of the section shows that the mode provided therein could be resorted to without prejudice to any other mode of recovery available under law.(2), as we have pointed out, has also obvious limitation, because the Labour Court under thatprimarily performs the functions which are analogous to the function of an executing Court and the determination of complicated issues, such as, which of the two settlements in the field would really be attracted and which of them should be enforced, seems to be beyond the competence of the Labour Court. All this discussion we have made till now is on the assumption that the plaintiffs in this case have come before the Court with a money claim. However, when the real nature of the claim before us is considered, it becomes clear that it is a simple claim of injunction wanting to prevent a mischief being done to them without their consent. For preventing recurring breaches of an existing contract or for preventing a recurring implementation of a new contract unilaterally by the employer, there seems to be no remedy provided by the Act at all. It is difficult to tell the plaintiffs that they will not file a suit for claiming an injunction restraining their employer from enforcing a particular contract which is not binding on them. The attempt of the employer to enforce that contract month after month could be prevented only by an appropriate injunction of a civil Court and such an injunction seems to be beyond the competence of any Labour Courts or tribunals provided by theBEFORE we dispose of this appeal, we may incidentally note that before the learned single judge who decided the first appeal out of which this appeal arises, some more points were raised which are not specifically raised before us. One of the points whether the present suits is one for specific performance was faintly argued before us and the discussion made by us above would clearly show that there is no attempt on the part of the plaintiffs to claim specific performance of any particular contract. There is merely an attempt to prevent the employer from enforcing a particular settlement or contract. Besides the question whether the suit is one for specific performance, it was argued at considerable length before the learned single Judge that the payments contemplated under the incentive scheme are either bonus or payment in the nature of bonus and, therefore, covered by the provisions of the Bonus Act. The other point that was canvassed before the learned single Judge was that the workers who are neither members of the engineering Mazdoor Sabha or of the Association of Engineering Workers have no particular contract in their favour and could not have jointed the present plaintiff under the provisions of o. I. R. 8, Civil Procedure Code and no adjudication could be made in their behalf by resorting to the procedure laid down in O. I. R. 8. It is needless to point out that it has been held by the trial court as well as by the first appellant Court that the manner in which payments are made from year after year from 1966 till 1971 itself constitutes a contract and such a contract exists between all workmen, whether members of a particular union or not, and defendant No.The third point that was canvassed was that the injunction that is granted by the trial Court is purely a temporary injunction and temporary injunction cannot form theof the decree. All these contentions have been negatived by the first appellate Court and we need not consider them for the simple reason that none of them has been argued beforeTHE only other point that was pressed before us was that the injunction granted by the trial court would not fall under any specific provision of the Specific Relief Act, 1963. We do not see much substance in this argument. The Courts jurisdiction to grant injunctions is covered by the provisions of that Act. The provisions of S. 38 (1) or clause (d) of(3) could be properly invoked in the circumstances of the present case. The discussion made by us earlier in this judgment would show that the recurring claims and recurring breaches could not be sufficiently dealt with by the Industrial Disputes Act. An injunction of the type granted by the trial Court in this case would undoubtedly prevent a multiplicity of judicial proceedings which may have to be resorted to unless the implementation of the settlement of 1971 is prevented. It could not be said in this case that there is no contract at all between the employer and the employees who are being paid for years together. The attempt on the part of theNo. 1 to enforce a new contract without the consent of the plaintiffs and other similarly circumstanced would amount to breach of the existing contract. Nobody suggest that the terms and conditions of service could not be changed by ushering in a new contract, settlement or award. The grievance of the plaintiffs is that without resorting to the procedure provided by the Act, a direct interference with the existing terms and conditions of service is resorted to by defendant No. 1, the appellant. We are, therefore, of the opinion that under the provisions of S. 38 (1) and clause (d) of(3) of that section it would be appropriate to grant the kind of injunction which has been granted in thisWE may incidentally note that there arefiled by respondents Nos. 1 and 2 original plaintiffs. Thoserelate to certain observations which appear in the judgment of the learned single Judge. While dealing with the settlement of 1971 the learned single Judge observes that if the agreement dated January 9, 1971 could be styled as a "settlement," it would have the binding effect on all workmen who are not only members of defendant No. 2 union but other workmen as well who are not only members of defendant No. 2 union but other workmen as well who are not members of defendant No. 2 union. In fact the settlement is with defendant No. 2 union of which the plaintiffs are not the members and there are many others who are also not members of that union. This is only an incidental observation and could not legitimately form thes. However, Mr. Damania for theexpressed apprehension that these observations might be used against him in some manner. When we looked at the provisions of the Act, we found that a proviso is now introduced after(1) of S. 18 by Maharashtra Amending Act No. 1 of 1972. The effect of the proviso is that when a settlement which is not arrived in the course of conciliation proceedings takes place with a recognised union under(1) of S. 18, it is now made binding not only upon the members of that union but also upon persons referred to in cls. (c) and (d) of(3) of S. 18. It is our surmise that perhaps these provisions were present in the mind of the learned single Judge when generalisation was made by him about the binding effect of the settlement. However, so far as the facts of this case are concerned, the proviso is not at all attracted and its provisions are not applicable to settlements either of 1966 or 1971. The learned single Judges observations are merely incidental, perhaps based upon amended provisions of S. 18 and would, therefore, have no binding effect at all on either party to this litigation.