MILKHI RAM versus HIMACHAL PRADESH STATE ELECTRICITY BOARD
[2021] 6 S.C.R. 1131, Supreme Court of India, 2021
Outcome: Dismissed (Dismissed)
Segment: Ratio
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[2021] 6 S.C.R. 1131
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MILKHI RAM
v.
HIMACHAL PRADESH STATE ELECTRICITY BOARD
(Civil Appeal No. 1346 of 2010)
OCTOBER 08, 2021
[R. SUBHASH REDDY AND HRISHIKESH ROY, JJ.]
Industrial Disputes Act, 1947 – Termination – Suit before civil
court – Maintainability of – Held: Civil court lacks jurisdiction to
entertain a suit structured on the provisions of the ID Act – Thus, in
the present case the decree favouring the appellant-employee is a
legal nullity – Finding of the High Court to this extent, upheld –
However, considering the hardship to the appellant, the arrear paid
pursuant to the court’s decree not to be recovered.
Dismissing the appeal, the Court
Held: 1.1 The civil courts may have the limited jurisdiction
in service matters, but jurisdiction may not be available to Court
to adjudicate on orders passed by disciplinary authority. The
authorities specified under the Industrial Disputes Act, 1947
including the appropriate government and the industrial courts
perform various functions and the ID Act provides for a wider
definition of “termination of service”, the condition precedent of
termination of service. The consequence of infringing those, are
also provided in the ID Act. When a litigant opts for common law
remedy, he may choose either the civil court or the industrial
forum. In the present matter, the appellant has clearly founded
his claim in the suit, on the provision of the ID Act and the
employer therefore is entitled to raise a
jurisdictional objection
to the proceedings before the civil court. The courts below
including the executing court negated the jurisdictional objection.
The High Court in Revision, however overturned the lower
court’s order and declared that the decree in favour of the plaintiff
is hit by the principle of coram non judice and therefore, the same
is a nullity. This Court is unable to accept the view propounded
by the courts below and is of the considered opinion that the civil
court lacks jurisdiction to entertain a suit structured on the
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SUPREME COURT REPORTS
[2021] 6 S.C.R.
provisions of the ID Act. The decree favouring the plaintiff is a
legal nullity and the finding of the High Court to this extent is
upheld. However, considering the hardship to the terminated
employee, the arrear sum paid to him pursuant to the
court’s decree, sould not be recovered. [Paras 13, 14, 16 and
17][1135-E-H; 1136-A-B, E-F]
Rajasthan SRTC & Ors. Vs. Khadarmal 2006 (1) SCC
59; Rajasthan SRTC & Anr. vs. Ugma Ram Choudhary
2006 (1) SCC 61; Rajasthan SRTC vs. Krishna Kant
1995 (5) SCC 75 : [1995] 3 SCR 1118; Rajasthan SRTC
vs. Zakir Hussain 2005 (7) SCC 447 : [2005] 2 Suppl.
SCR 786 – relied on.
Transport Corporation and Ors. vs. Mohar Singh 2008
(5) SCC 542 : [2008] 6 SCR 890 – referred to.
Case Law Reference
[2008] 6 SCR 890
referred to
para 11
[1995] 3 SCR 1118
relied on
para 15
[2005] 2 Suppl. SCR 786
relied on
para 15
CIVIL APPELLATE JURISDICTION: Civil Appeal No.1346 of
2010.
From the Judgment and Order dated 06.11.2018 of the High Court
of Himachal Pradesh at Shimla in Civil Revision No.16 of 2006.
Ajit Singh Pundir, Arijeet Singh, Advs. for the Appellant.
Naresh K. Sharma, Adv. for the Respondent.
The Judgment of the Court was delivered by
HRISHIKESH ROY, J.
1. Heard Mr. Ajit Singh Pundir, learned counsel appearing for the
appellant (plaintiff). Also heard Mr. Naresh K. Sharma, learned counsel
appearing for the respondent (defendant).
2. The challenge here is to the judgment dated 6.11.2008 of the
High
Court of Himachal Pradesh whereunder the defendant’s Civil
Revision No. 16/2006 was allowed with the observation that the civil
court lacked jurisdiction to entertain the civil suit based on the Industrial
Disputes Act, 1947 (for short “the ID ACT”) and therefore, the judgment
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and decree in favour of the plaintiff are a nullity. The Court also opined
that a plea on absence of jurisdiction can be raised even at the stage of
execution of proceedings.
3. The appellant was a daily wage employee under the Himachal
Pradesh State Electricity Board (hereinafter referred to as the “Board”).
The service of the temporary employee was dispensed with by order
dated 1.1.1985 issued by the Executive Engineer. This was challenged
in the Civil Suit No. 100/1985. The plaintiff claimed to have rendered
uninterrupted service for 2778 days and asserted the right to be regularized
after completion of 240 days of continuous service. The defendant per-
contra contended that the plaintiff never worked for a continuous period
of 240 days and as such he is disentitled to claim regularization.
4. Whether the civil court has jurisdiction and whether the Plaintiff
had completed 240 days of uninterrupted service were the main issues
framed by the civil court. Both the issues ware answered in favour of
the plaintiff. The learned Judge referred to the provisions of Section
25B and 25F of the ID Act and noted that the plaintiff had rendered
service for well above 240 days in one year and therefore his service
could not have been terminated without complying with the statutory
requirement. Accordingly, the suit was decreed ordering reinstatement
of the plaintiff with back wages. The defendant was directed to also
consider regularization of service, for the
plaintiff.
5. The Board challenged the above decision in the Civil Suit No.
100 of 1985, before the District Judge, Dharamshala by filing the Civil
Appeal No. 123/1988. The jurisdiction of civil court was again questioned
but the appellate court observed that the question of jurisdiction is a
mixed question of law and facts and since the litigation is continuing for
long, it would not be proper to relegate the plaintiff to the labour court.
According to the appellate court the workman was entitled to choose
the remedy either before the civil court or before the Industrial Court.
As the service of a daily wager was terminated, the same was treated
to be a retrenchment without compliance with Section 25F of the ID
Act. The decree favouring the plaintiff was accordingly upheld by
rejecting the jurisdictional objection raised by the Board.
6. The judgment debtor’s further challenge to the decree were
not entertained and then the Board made the offer to appoint the
terminated daily wager to the post of LDC in the regular pay scale, with
effect from 1.9.2001 (Annexure P4). Responding to the appointment
MILKHI RAM v. HIMACHAL PRADESH STATE ELECTRICITY
BOARD [HRISHIKESH ROY, J.]
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offer, the appellant gave a joining report on 1.9.2001 (Annexure P5), but
since the same was hedged with various conditions, the joining report
was not acted upon by the management.
7. Following the above, the decree holder applied for execution of
the decree (12.10.1988) in the Civil Suit No. 100 of 1985 before the Civil
Judge (Junior Division). The judgment debtor raised a preliminary objection
on the maintainability of the application with the projection that all back
wages were paid to the decree holder and he was also offered the post
of LDC on 22.8.2001 and since the decree holder gave a conditional
joining report and was required to re-submit a joining report as per rules,
nothing further is required to be done for execution of the decree. The
executing court negated the Board’s objection and the application of the
decree holder under Order XXI Rule 32 of the Code of Civil Procedure,
1908 (for short “the CPC”) was allowed by directing the Board to give
effect to the decree.
8. The order of executing court was challenged by the Board in
Civil Revision No. 16/2006. The Board contended before the High Court
that the civil court had no jurisdiction to adjudicate a claim arising out of
the ID Act and relief for the aggrieved employee could have been granted,
only by the industrial court. It was further contended that plea of absence
of jurisdiction can be raised at any stage and the present decree is a
legal
nullity.
9. On the other hand, the decree holder pointed out that concurrent
findings are recorded in favour of the plaintiff. Moreover, the Court had
answered the jurisdiction issue in favour of the plaintiff. As such the
maintainability of the challenge in Revision before the High Court by the
judgment debtor, was questioned by the terminated employee.
10. To address the jurisdictional question posed by the employer,
the learned Judge referred to the judgments in Rajasthan SRTC & Ors.
vs. Khadarmal1, Rajasthan SRTC & Anr. vs. Ugma Ram Choudhry2
and opined that the civil court did not have jurisdiction to entertain a
claim based on the ID Act and if any decree is passed by the court
without jurisdiction, the same shall have no force of law. Following the
ratio in these two judgments, the High Court held that the civil court
lacked inherent jurisdiction to entertain the suit based on the ID Act and
the judgment and decree so passed, are nullity. It was further observed
that the plea of decree being a nullity can also be raised at the stage of
1 (2006) 1 SCC 59
2 (2006) 1 SCC 61
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execution. The Revision petition filed by the judgment debtor was
accordingly allowed by setting aside the decree passed in favour of the
plaintiff.
11. Challenging the intervention of the High Court against the
decree holder, Mr. Ajit Singh Pundir, the learned counsel submits that
the appellant has rendered service as a daily wager since 11.12.1976
and his service could not have been terminated without following the
due process. According to the appellant’s counsel even when relief is
claimed based on the provisions of the ID Act, the jurisdiction of the civil
court is not entirely barred. In support of his contention, Mr. Pundir
relies upon Rajasthan State Road Transport Corporation and Ors.
vs. Mohar Singh3.
12. On the other hand, Mr. Naresh K. Sharma, the learned counsel
for the respondent Board, in support of the impugned judgment, reiterates
the contention made before the High Court and submits that jurisdiction
of the civil court is ousted when claimed relief is founded on the ID Act.
It is further argued that when the civil court had no jurisdiction, the
decree is nothing but a nullity and no relief on the basis of such void
decree can be claimed by the plaintiff. In order to demonstrate the
bonafide of the employer, Mr. Sharma refers to the letter dated 22.8.2001,
offering the post of LDC and how the said offer did not fructify only
because of the adamancy oftheappellant, who failed to furnish a proper
joining report. Insofar as the relief of
back wages ordered by the civil
court, the counsel submits that the Board has already remitted the arrear
salaries to the appellant.
13. The above contentions of the parties indicate that the only
issue to be considered here is whether the suit before the civil court at
the instance of the terminated employee, was maintainable. The civil
courts may have the limited jurisdiction in service matters, but jurisdiction
may not be available to Court to adjudicate on orders passed by disciplinary
authority. The authorities specified under the ID Act including the
appropriate government and the industrial courts perform various
functions and the ID Act provides for a wider definition of “termination
of service”, the condition precedent of termination of service. The
consequence of infringing those, are also provided in the ID Act. When
a litigant opts for common law remedy, he may choose either the civil
court or the industrial forum.
3 (2008) 5 SCC 542
MILKHI RAM v. HIMACHAL PRADESH STATE ELECTRICITY
BOARD [HRISHIKESH ROY, J.]
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14. In the present matter, the appellant has clearly founded his
claim in the suit, on the provisions of the ID Act and the employer
therefore is entitled to raise a jurisdictional objection to the proceedings
before the civil court. The courts below including the executing court
negated the jurisdictional objection. The High Court in Revision, however
has overturned the lower court’s order and declared that the decree in
favour of the plaintiff is hit by the principle of coram non judice and
therefore, the same is a nullity.
15. The cited cases i.e. Khadarmal (supra) and Ugma Ram
Choudhry (supra) pertain to employees under the Rajasthan State Road
Transport Corporation. The three judges Bench of this Court while
adverting to the challenge to termination of service opined that the civil
court has no jurisdiction to entertain such cases. For such conclusion,
the court referred to two earlier decisions in Rajasthan SRTC vs. Krishna
Kant4 and Rajasthan SRTC vs. Zakir Hussain5 and held that when
civil court has no jurisdiction, the decree passed in those proceedings
can have no force of law. On the back wages already disbursed to the
terminated employee, in Ugma Ram Choudhry (supra), the court on
equitable principles observed that the disbursed amount should not be
recovered from the employee.
16. As can be seen from the material on record, the challenge to
the termination was founded on the provisions of the ID Act.
Although
jurisdictional objection was raised and a specific issue was framed at
the instance of the employer, the issue was answered against the
defendant. This Court is unable to accept the view propounded by the
courts below and is of the considered opinion that the civil court lacks
jurisdiction to entertain a suit structured on the provisions of the ID Act.
The decree favouring the plaintiff is a legal nullity and the finding of the
High Court to this extent is upheld.
17. Consequently, the appeal is found devoid of merit and the
same is dismissed. However, considering the hardship to the terminated
employee, the arrear sum paid to him pursuant to the court’s decree,
should not be recovered. It is ordered accordingly. The parties to bear
their own cost.
4 (1995) 5 SCC 75
5 (2005) 7 SCC 447
Divya Pandey
Appeal dismissed.