Bhim Sain Parbhakar And Another v. H.R Chaturvedi And Another

1. The petitioners are workmen in the employment of the Cement Corporation of India, Ltd., respondent 2, which is a Government of India undertaking. It shall hereafter be referred to as the corporation. It served a chargesheet on the petitioners to the effect that on 26 October 1986, they held a meeting of the workers in the mines without permission. Sri H.R Chaturvedi, respondent 1, was appointed as inquiry officer by the corporation to hold an inquiry in accordance with the established procedure into the charges against the petitioners. During the pendency of the inquiry the petitioners addressed a question to the presenting officer representing the corporation as to under which Model Standing Orders the inquiry was being conducted, who in turn disclosed that it was being conducted under the Model Standing Orders of the Haryana Government. The petitioners contended that their conditions of service were governed by the Model Standing Orders framed by the Central Government and not those of the Haryana Government, but their stand was not accepted by either the corporation or the inquiry officer.

2. The petitioners, therefore, instituted a suit in the Court of Sub-Judge, First Class, Chankhi Dadri, contending that in the case of the corporation the appropriate Government is the Central Government and the Model Standing Orders framed by the Central Government governed their conditions of service. The chargesheet served on them and the inquiry being conducted on the basis of the same by respondent 1 are claimed to be for the alleged breach of the Model Standing Orders framed by the Haryana Government, which do not apply to them. They, therefore, sought a declaration that the chargesheet and the inquiry proceedings pending before respondent 1 should be declared illegal and ineffective and a prohibitory injunction be issued restraining respondent 1 from proceeding with the inquiry against them. They also filed an application under Order XXXIX, rules 1 and 2, Code of Civil Procedure, praying for an ad interim injunction restraining the respondents from conducting inquiry against them till the decision of the suit. This application was, however, dismissed by the learned trial Court vide its order, dated 6 January 1988. The appeal of the petitioners against the same also met the same fate and has been dismissed by the learned District Judge, Bhiwani, vide judgment, dated 8 June 1988. Being thus aggrieved, the petitioners have filed the present revision petition.

3. In the impugned judgment the learned District Judge has held in no uncertain terms that the Model Standing Orders of the Central Government are applicable to the petitioners and the other workers of the corporation. He has, however, held that the dispute which the petitioners have brought to the civil Court cannot be adjudicated upon by it. The civil Court cannot entertain such a suit. The petitioners should seek appropriate remedy by approaching the Tribunals as provided by special statutes. The learned counsel for the petitioners has raised the following two contentions against the impugned order:

(1) Once the learned District Judge has held that the Model Standing Orders of the Central Government govern the conditions of service of the petitioners, he ought to have allowed the appeal and granted ad interim injunction because the chargesheet and the inquiry against them are ultra vires the Model Standing Orders of the Central Government.

(2) The petitioners cannot approach the Labour Court or Tribunals under the special statutes, which have no jurisdiction to grant ad interim injunction. They can only seek the statutory remedy after an order adverse to them is passed by the corporation. It is only the civil Court which can grant an ad interim injunction as prayed for by them. This prayer could not, therefore, be declined on the ground that remedy under the special statutes is available to them.

4. Sri K.P Bhandari, the learned senior advocate, appearing on behalf of the corporation, on the other hand, has raised a two-fold contention which can be noted thus:

“(i) It is admitted by the petitioners that their letters of appointment contain a stipulation to the effect that the Model Standing Orders framed by the Haryana Government shall govern the conditions of their service till the standing orders framed by the corporation are certified and become operative under the Industrial Employment (Standing Orders) Act, 1946 (for short the Act). Therefore, their contention that they are governed by the Model Standing Orders framed by the Central Government is not tenable. They are estopped from raising such a plea. Even otherwise, by reference to law it is clear that the Model Standing Orders framed by the Haryana Government govern the conditions of their service.

(ii) The civil Court has no jurisdiction to entertain the suit brought by the petitioners. The appeal has been rightly dismissed by the learned District Judge. The contention of the petitioners that the Labour Court or the Tribunals under the special statutes cannot grant ad interim relief prayed for by them in the suit is no ground to approach the civil Court, which has otherwise no jurisdiction in the matter.”

5. In the normal circumstances, it would not have been necessary to return a definite finding whether or not the workmen of the corporation are governed by the Model Standing Orders framed by the Central Government or the Haryana Government. The Courts below were required to find out while passing the interlocutory order whether or not there is a prima facie case in favour of the petitioners. Since, however, the learned District Judge has dealt with this legal question in detail and has returned a finding that the Model Standing Orders framed by the Central Government apply to the workmen of the corporation and this question has once again been debated before me at length, I find it imperative to adjudicate upon the same.

6. Section 2(b) of the Act defines “appropriate Government” to mean “in respect of industrial establishments under the control of the Central Government or a railway administration, or in a major port, mine or oil-field, the Central Government, and in all other cases, the State Government.” The words “industrial establishment” are defined by Cl. (e) of S. 2 of the Act, inter alia, to mean “an industrial establishment defined in Cl. (ii) of S. 2 of the Payment of Wages Act and Cl. (m) of S. 2 of the Factories Act, 1948.” It could not be disputed before me that the corporation is an industrial establishment. But, what requires determination is “whether it is under the control of the Central Government.” The corporation is admittedly incorporated under the Companies Act, 1956. Reference to Arts. 4, 11, 42, 43, 46, 47, 66, 94, 95, 97, 98, 117, 120, 141, 142, 144 and 144-A of the articles of association leave no manner of doubt whatsoever that the corporation is under the control of the Central Government. In fact, the assets and the works of a private limited company were acquired by the Central Government under an Act of Parliament and the corporation was constituted and the assets and the works so acquired were transferred to it. The question of the legal form of the enterprise has no real bearing on the interpretation of S. 2(b) of the Act. The test for finding out whether an industrial establishment is controlled by the Central Government under S. 2(b) is a realistic test, i.e, whether the Central Government has control over the industrial establishment under the articles of association in the case of a private limited company or by the provisions of a special statute in the case of a public corporation. I have no doubt whatsoever in my mind that the corporation is an industrial establishment under the control of the Central Government. Therefore, “appropriate Government” in its case is the Central Government. Thus, by virtue of the provisions of S. 12-A of the Act, the Model Standing Orders framed by the Central Government shall be deemed to be adopted by it till its own standing orders are certified and come into operation in accordance with the Act. It has, in fact, not been denied before me that the standing orders were submitted by the corporation to the Certifying Officer of the Central Government, who certified the same. An appeal against his order filed by the union of workers is pending with the Central Government. The contention of the learned counsel for the corporation is that letters of appointment of the petitioners clearly stipulate that their conditions of service shall be governed by the Model Standing Orders of the Haryana Government. The same is at the most a contractual stipulation and has to make way for the provisions of the statute. The latter shall have the overriding effect.

7. I, therefore, affirm the view taken by the learned District Judge that the workmen of the corporation including the petitioners are governed by the Model Standing Orders framed by the Central Government till its own standing orders are certified and come into operation in accordance with law.

8. Learned counsel for the petitioners vehemently contended that the provisions of S. 13-A of the Act do not provide an adequate remedy to the petitioners against the action which is still in process at the hands of the corporation. He relied on Tata Chemicals, Ltd. v. Kailash C. Adhvaryu [A.I.R 1964 Guj. 265], a Single Bench judgment of the Gujarat High Court and contended that the provisions of S. 39 of the Specific Relief Act can be invoked by the petitioners and they can seek remedy from the civil Court. Their conditions of service prescribed by the Model Standing Orders framed by the Central Government are in the form of statutory service conditions binding on both the corporation and the petitioners. When impugned action is being taken in violation of the same, civil Court has the jurisdiction to grant the requisite relief. I am, however, unable to agree with this submission for the reasons which follow.

9. Section 13-A of the Act lays down that if any question arises as to the application or interpretation of a standing order certified under the Act, any employer or workman may refer the question to any one of the Labour Courts constituted under the Industrial Disputes Act, 1947, and specified for the disposal of such proceeding by the appropriate Government by notification in the Official Gazette and the Labour Court to which the question is so referred shall, after giving the parties an opportunity of being heard, decide the question and such decision shall be final and binding on the parties. Section 2(k) of the Industrial Disputes Act defines an “industrial dispute” to mean “any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. Section 2-A thereof provides that where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute. These provisions are all embracing. Any right which emanates to the workman from the provisions of the Act or the Industrial Disputes Act, or, where he complains of violation of such right, he can seek its enforcement only by a remedy provided by the special statutes. He cannot go to the civil Court even for grant of an ad interim relief till a final decision is taken by the Tribunals established under the special statutes. The matter has in fact been examined by the final Court threadbare and the principles laid down in Premier Automobiles, Ltd. v. Kamlakar Shantaram Wadke [1976-I L.L.N 1], provide definite guidance. 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. The final Court repelled a similar contention on behalf of the workmen when it held that where the civil Court has no jurisdiction to try and to adjudicate upon an industrial dispute when it concerns enforcement of certain right or liability created only under the Act, the 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 recognised by and enforceable under the Act alone. In Bangalore Woollen Cotton and Silk Mills Company, Ltd. v. Their workmen [1967-68 (33) F.J.R 254], it has been, inter alia, observed thus:

“It may be that the workmen, affected by the standing orders may not always, and in every case, succeed in obtaining a reference to the Industrial Tribunal on a relevant point. These are some of the circumstances for giving a right and a remedy to the workman, under the Standing Orders Act itself, but there is no indication in the scheme of the Standing Orders Act that the jurisdiction of the Industrial Tribunal, to entertain an ‘industrial dispute’ bearing upon the standing orders of an industrial establishment and to adjudicate upon the same, has in any manner been abridged or taken away by the Standing Orders Act.”

10. In Abani Bhusan Biswas v. Hindustan Cables, Ltd. [1968 (38) C.C 528], it has been held that no relief can even be granted under Art. 226 of the Constitution on the ground of violation of standing orders because the Act is self-contained code and it itself provides for an adequate remedy. A question as to whether any standing order has been properly applied to the facts of a given case or it has been contravened is a question to be referred for adjudication to the Labour Court set up under the Act. Even apart from the provisions of the Act, the employee can, on the ground of contravention of a standing order, raise an industrial dispute under the Industrial Disputes Act. In Empire of India and Ceylon Tea Company (Private), Ltd. v. Jitendra Nath Biswas [1975-II L.L N, 393], a judgment delivered by Baharul Islam, J., then a Judge of the Gauhati High Court, he held that the reliefs which can be granted by the Industrial Tribunals are more appropriate for maintaining industrial peace and unity than that which can be granted by civil Courts acting within the four concerns of the laws of procedure. The Labour Court, to which a dispute may be referred under the provisions of the Act, has power to decide whether the agreement arrived at between the employer and the employees is valid and binding upon the employees and whether the employer should or should not implement it.

11. Keeping in view the above position of law and the context in which the instant suit has been filed, I am of the considered view that the Courts below have rightly declined grant of ad interim injunction in favour of the petitioners. The orders which are the subject-matter of the present revision petition are, therefore, upheld.

12. Consequently, finding no merit in this revision petition, the same is dismissed leaving the parties to bear their own costs.

13. I would, however, record a word of caution for the corporation. In case the alleged misconduct on the part of the petitioners is not within the ambit of the Model Standing Orders framed by the Central Government which without doubt govern the service conditions of the petitioners, it shall be futile for it to persist in the action against the petitioners. By doing so, the corporation is likely to involve itself in a litigation which would ultimately result in avoidable financial burden on it and may also disturb industrial peace. It is for the authorities of the corporation to ponder over the matter and take a decision.