When a litigant opts for common law remedy, he may choose either the civil court or the industrial forum : Supreme Court

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1346 OF 2010 …APPELLANT(S HIMACHAL PRADESH STATE ELECTRICITY BOARD …RESPONDENT(S JUDGMENT Hrishikesh Roy J Heard Mr. Ajit Singh Pundir learned counsel appearing for the appellant and therefore the judgment 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 The appellant was a daily wage employee under the Himachal Pradesh State Electricity Board but since the same was hedged with various conditions the joining report was not acted upon by the management Following the above the decree holder applied for execution of the decreein the Civil Suit No 1085 before the Civil Judgewas 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 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 execution. The Revision petition filed by the judgment debtor was accordingly allowed by setting aside the decree passed in favour of the plaintiff 1 1 SCC 59 2 1 SCC 61 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 35 SCC 542 offering the post of LDC and how the said offer did not fructify only because of the adamancy of the appellant 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 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 and Ugma Ram Choudhry 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 45 SCC 75 57 SCC 447 in those proceedings can have no force of law. On the back wages already disbursed to the terminated employee in Ugma Ram Choudhry 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 [HRISHIKESH ROY OCTOBER 08 2021 Page 1

Summary: 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. as upheld by the Hon’ble Supreme Court through the learned bench lead by Justice Hrishikesh Roy in the case of Milkhi Ram v. Himachal Pradesh State Electricity Board (CIVIL APPEAL NO. 1346 OF 2010) The brief facts of the case are that, the appellant was a daily wage employee under the Himachal Pradesh State Electricity 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. 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. The Board challenged the above decision before the District Judge, Dharamshala. 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. The decree favouring the plaintiff was accordingly upheld by rejecting the jurisdictional objection raised by the Board. The Board made the offer to appoint the terminated daily wager to the post of LDC in the regular pay scale, responding to the appointment offer, the appellant gave a joining report but the joining report was not acted upon by the management. 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. On the other hand, the decree holder pointed out that concurrent findings are recorded in favour of the plaintiff. the learned Judge referred to the judgments in Rajasthan SRTC &amp; Ors. vs. Khadarmal, Rajasthan SRTC &amp; Anr. vs. Ugma Ram Choudhry 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.  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. Even when relief is claimed based on the provisions of the ID Act, the jurisdiction of the civil court is not entirely barred. 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 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. Having heard learned counsel for the respective parties at length, the Hon’ble Court held, “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.”