Dave, J.:— Learned Single Judge has referred a question of law which arose in this set of 29 Civil Second Appeals before him. The question referred to is as under:
“Whether the Civil Courts have jurisdiction to try sucn suits”?
2. The words “such suits” used by the learned single Judge in the question refers to suits which are filed by the employees of Rajasthan State Road Transport Corporation (hereinafter referred to as “the Corporation”), challenging either the pendency or the decision of departmental enquiries, instituted against them for their committing misconduct in the course of their employment and claiming their rights or liabilities under the general or common law. For better appreciation it would be relevant to mention the facts giving rise to one of the appeals, in Civil Second Appeal No. 215/83, R.S.R.T.C v. Kaluram, the plaintiff-respondent was deployed as a Conductor on Bus No. RSG 2986. His bus was checked on January 31, 1978 and the checking staff found that 41 passengers were travelling without tickets. F???r this a departmental enquiry was instituted against him and proceedings started. Before the final order of dismissal was issued the plaintiff respondent filed Civil Suit No. 33/78 before Additional Munsif No. 2, Jaipur City, Jaipur praying that the Corporation may be restrained from dismissing him. Since there was no stay of proceedings the dismissal order came to be passed and the plaintiff-respondent amended the suit praying that order of dismissal be declared as a nullity being violative of principles of natural justice. It was pleaded in the suit that proper opportunity to defend the plaintiff was not given inasmuch as even the copies of the documents on which Corporation placed reliance in departmental enquiry, were also not supplied. The Corporation contested the suit and challenged the jurisdiction of the civil courts to entertain suit as the plaintiff was a workman and the remedy was by way of raising an industrial dispute before the Industrial Tribunal or the Labour Court. The trial court framed amongst other the following issue:
“Whether the Civil Court has jurisdiction to try suit”?
3. The plaintiff's suit was decreed by trial court against which the Corporation filed an appeal before the District Judge, Jaipur City, Jaipur which was in due course transferred to Addl. District Judge No. 6, Jaipur City Jaipur. The appeal was dismissed; hence the Corporation filed the second appeal in which question of jurisdiction was raised.
4. Since similar question had arisen in 28 more appeals the learned single Judge framed the question and referred the same. This order will answer the question in all these appeals.
5. It is submitted on behalf of the Corporation that civil court has no jurisdiction, express or implied, to take cognizance of the suit where the relief claimed is one which can be granted under the Industrial Dispute Act (hereinafter referred to as “the Act”). It is submitted that the Act is a special Act which takes care of all disputes which are industrial disputes as defined under the Act. For adjudication of such disputes, it is submitted, the Legislature has made the special forums of Industrial Tribunals and Labour Courts where the references are made under S 10 of the Act. It is submitted that the relief claimed by the plaintiff is not under the general law, hence civil court has no jurisdiction to try them. It is submitted that no declaration to enforce a contract of personal service can be granted unless a public servant has been dismissed from service in contravention of Art. 311(2) of the Constitution of India or it is a matter of reinstatement of a dismissed worker under Industrial Law or a statutory body acts in breach of a mandatory obligation, imposed by statute and for the cases of category. Industrial or Labour Tribunal alone has the jurisdiction Reliance has been placed on (1) The The Premier Automobiles Limited v. Kamlakar Shantaram Wadke* : (1976) 1 SCC 496 : AIR 1975 SC 2238 wherein their Lordships laid down four principles governing the jurisdiction of civil courts in relation to industrial disputes and Corporation relied on third principle wherein it has been held that if the industrial dispute relates to on enforcement of a right or obligation created under the Act then remedy available to the suitor is to get an adjudication under the Act.
6. Learned counsel appearing for the workmen, also relied upon the decision of their Lordships in The Premier Automobile's case and submitted that out of four principles laid down by their Lordships it is not the category third which would govern the case but it is category second wherein their Lordships have held that 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. It is submitted that in the instant case there is breach of principles of natural justice which flows from natural law or common law. It is submitted that the principles of natural justice are inherent in our system except in cases where there is express exclusion. It is further submitted that there is also clear violation of clause 35 of the Standing Order and, therefore, also there is breach of statutory law and the civil court has jurisdiction to entertain the suit. It is further submitted that the Industrial Disputes Act does not provide for a remedy to an un-sponsored workman and he is not permitted to approach the Industrial Tribunal or the Labour Court in his individual right if the Slate Government refuses to make a reference. The only remedy available to the workman then is to file a writ petition seeking a direction against the State for making a reference under S. 10 of the Act. It is, therefore, submitted that in a case where right also flows from natural law or common law the workman has been permitted to invoke the jurisdiction of the Civil Court as well.
7. Learned counsel for both the parties have mainly based their arguments on the decision of their Lordship of the Supreme Court in The Premier Automobile's case. Besides this case reference was also made to (2) Sudhir Chandra Sarkar v. Tata Iron and Steel Co. Ltd, (1984) 3 SCC 369 : AIR 1984 SC 1064 (3) State Of Tamil Nadu v. Ramalinga Samigal Madam., (1985) 4 SCC 10 : AIR 1986 SC 794 (4) K.S.R.T.C v. Raon TI. : 1983 (2) SLR 663 and (5) State v. Khan Farouk : 1974 WLN (UC) 232.
8. We have perused all the cases cited before us but in our opinion since learned counsel for both the parties have placed reliance on The Premier Automobile's case and also because the said judgment has been differently interpreted by different High Courts, we think it proper to discuss at length the said case because The Premier Automobile's case has dealt with the question of jurisdiction for trial of a case by the civil court or the Industrial Tribunal or Labour Tribunal. Their Lordships after discussing the various provisions of law and the cases summarized the law as under:
“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 light 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.
(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”.
“We may however, in relation to principle 2 stated above hasten to add that there will hardly be a dispute which will be an industrial dispute within the meaning of S. 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 S. 2A of the Act will be an industrial dispute even though it may otherwise be an individual dispute Civil Courts, therefore will have type of cases falling under principle 2. Cases of industrial, disputes by and large, almost invariably, are bound to be covered by principle 3 stated above”.
(emphasis supplied)
9. The entire controversy has arisen while giving proper meaning to principle 2 among the aforesaid principles as there is no difficulty in applying principles 1, 3 and 4. Principle 1 would apply to that case where the dispute is neither an industrial dispute nor is raised for enforcement of any right flowing from the Industrial Dispute Act, then it is only the Civil Court which has the jurisdiction to entertain the case While principle 3 relates to the disputes which are raised for enforcement of rights or obligations created under the Industrial Disputes Act, Jn those matters the exclusive jurisdiction vests in Industrial Tribunal or Labour Court. Principle 4 also concerns the jurisdiction of the Industrial Tribunal and as mentioned aforesaid it is only principle 2 which requires to be interpreted
10. Before the Industrial Disputes Act was amended and S. 2A was introduced it was essential that disputes ought to have been espoused by a Trade Union or by substantial number of workmen and the concerned workman should have been member of such an Union at the time when the cause of such dispute arose or that the dispute, though may initially be an individual dispute the workman could espouse it on the ground that there is community of interest and the others are directly or substantially interested in the employment, non-employment or conditions of service of the concerned workman.
11. There is no difficulty in applying so far as principles 1, 3 and 4 are concerned. The 1st principle would apply to all those cases where the dispute is neither an industrial dispute nor are filed for enforcement of any right under the Industrial Dispute Act, then it is only the Civil Court which has the jurisdiction. In 3rd principle where the dispute relates exclusively for the enforcement of rights or obligations created under the Industrial Dispute Act then Civil Courts jurisdiction is barred and exclusive jurisdiction vests in getting adjudication under the Industrial Dispute Act. 4th principle is also concerning jurisdiction of the Industrial Tribunal, since that is for the enforcement of the rights created under the Act. This premises presupposes that though on the date when the cause of dispute arises that dispute is an individual dispute, such a dispute can become an industrial dispute if it is espoused by the workman or a substantial section of them after the cause of the dispute such as dismissal has taken place. It may be that on the date of such dismissal there is no union or that the workman are not sufficiently organised to take up the cause of the concerned workman and no espousal for that or any other reason takes place at the time when such cause occurs. But that cannot mean that because there was no such union in existence on that date the dispute cannot become an industrial one if it is taken up later en by the union or by substantial section of the workmen. (Reference may be made to (6) AIR 1970 SC 1204). With the introduction of S. 2A the dismissal, discharge, retrenchment or otherwise termination are deemed to be the industrial disputes though they are of individuals.
12. It is after the introduction of S. 2A that their Lordships laid down the aforesaid four principles and principle 2 was laid down. Their Lordships held that there is an option to the workman for invoking the jurisdiction of Civil Court or to raise a dispute under the Act. The rider placed was that for invoking the jurisdiction of Civil Court it essential that dispute must be one which may by the afor said deeming section be an industrial dispute yet the cause of action for giving raise to such dispute may be arising out of a right or liability under the general or common law This is apparent from the words “arising out of a right or liability under the general or common law and not under the Act the jurisdiction of Civil Court is alternative”. Their Lordships have illustrated this position of law and the preposition has been well settled nevertheless it has posed problem in its practical application and different courts have given it different interpretations and there has become a conflict of judicial precedent on this point. It may be mentioned here that their Lordships visualized, there may be some cases which may not hold two distinct and separate fields and where the rights or liabilities might be giving rise to the industrial dispute though source may be under the general law or the common law. In those cases their Lordships have stated that there may be two alternative remedies. The word hardly used by their Lordships in para 24 does not mean none but it means rarely or very seldon They were contemplating rare cases and have illustrated one as the case of unsponsored workman whose dispute could also be considered as an industrial dispute by virtue of the deeming clause of S. 2A of the Act. The words “there will hardly be a dispute which will be an industrial dispute within the meaning of S. 2(k) of the Act and yet will be arising out of a right or liability under the general or common law only and not under the Act”, would clearly mean that very seldom there may be a dispute as they have illustrated by words “may arise in regard to the dismissal of an un-sponsored workman which, in view of the provisions of law contained in S. 2A of the Act, will be an industrial dispute even though it may otherwise be an individual dispute”. These words again in our opinion mean that sometime there may be a case of an employee who is dismissed from service and his case is not espoused by an Union and he is, therefore, an un-sponsored workman, yet his case becomes an industrial dispute by virtue of S. 2A of the Act, then he can opt for going to Civil Court or ask for a reference under S 10 of the Act. In case the termination is in violation of principles of natural justice or is in violation of some statutory provisions, such as in the cases in hand where the employees are un-sponsored workmen who challenged termination being violative of Standing Orders and also because of violation of principles of natural justice. The employees have made a grievance that they have not been given proper right of hearing and the termination is against the principles of Audi Alteram Partem which rights are inherent. In such case, therefore, workman can also raise the dispute because of S. 2A of the Act. This is again clear because their Lordships have further used the words, “Civil Courts, therefore, will have hardly occasion to deal with the types of cases falling under principle 2”. This is obvious from the fact that unless there are cases falling within the ambit of principle 2, it was unnecessary to lay down that principle. The further words, “cases of industrial disputes by and large, almost invariably, are bound to be covered by principle 3” indicate that principle 2 covers only rare or exceptional cases, one of which is indicated by the illustration given. Therefore, the cases in which the suit or claims a right or liability under the general or common law falling within the ambit of principle 2 he has an option of invoking the jurisdiction of the Industrial Tribunal/Labour Court under the Act or the Civil Court. As a result of the aforesaid discussions we are of the opinion that in Premier Automobile's case while laying down principle 2 their Lordships have expressly indicated situation where a workman may resort to the remedy in Court Civil also in case the dispute only be invoking the provisions of S. 2A of the Act. We will thus, answer the question as under:
That the Civil Court has jurisdiction to try the suit since it falls within the ambit of principle 2 laid down in Premier Automobile's case for the reasons given”.
13. Before parting with the case we would like to observe that such situations only arise in the States where no Legislation has been enacted affording a right to an individual un-sponsored workman to approach a Labour Court or Tribunal as of right. A remedy in a Civil Court is by no means, a cheap and efficacious remedy but the workman is compelled to resort to it since the remedy of approaching the Labour Court etc. depends on a reference and is not available as of right. It would be desirable for the State of Rajasthan to enact a legislation in line with the legislation in several States which confer on an individual workman a right to approach the Labour Court/Industrial Tribunal etc. directly. This progressive social legislation has been wanting too long in this State. We expect the learned Advocate General to invite the attention of the State Government to this aspect.