1. This application by the two defendants under S. 115 of the Code of Civil Procedure is directed against the order, dated 2 August 1973, passed by the Sadar Munsiff, Tezpur, in Title Suit No. 68 of 1971.
2. The relevant facts are these: The plaintiff was an employee of Borjuli Tea Estate belonging to defendant 1, Empire of India and Ceylon Tea Company (Private), Ltd., Calcutta; defendant 2 is the manager of Borjuli Tea Estate. On 16 October 1971, defendant 2 served a notice on the plaintiff asking him for explanation on certain charges of misconduct. In due course a domestic enquiry was held by the management and as a result the plaintiff was dismissed from service on 22 November 1971. According to the plaintiff the order of dismissal is contrary to the provisions of law. He has filed the present suit in the Court of the Munsiff for a declaration that the dismissal is null and void and inoperative on the ground, inter alia, that the plaintiff was not guilty of any misconduct within the meaning of the standing orders as certified under the Industrial Employment (Standing orders) Act, 1946. He has also prayed for back-wages and other appropriate reliefs.
3. The two defendants have filed a joint written statement. They have pleaded inter alia:
(i) that the suit is not maintainable the relief, if any, being available to the plaintiff under S. 2A of the Industrial Disputes Act, 1947 (hereinafter called the Act); and
(ii) that the suit is not maintainable under S. 14(1)(b) of the Specific Relief Act, 1963, and that the civil Court has no jurisdiction to entertain this suit.
4. On the pleadings of the parties the learned Munsiff framed two preliminary issues. They are:
“(1) Whether the suit is maintainable in the present form?
(2) Whether this Court has jurisdiction to try the suit?”
5. After hearing the parties he has held that the civil Court has jurisdiction to try the suit and that the relief sought is not barred under S. 14(1)(b) of the Specific Relief Act.
6. This order of the learned Munsiff has been challenged by the present petition in revision.
7. Sri J.P Bhattacharjee, learned counsel for the petitioners makes two submissions before me,
“(i) that the dispute in question is an ‘industrial dispute’ within the definition of S. 2(k) of the Act; the dispute can be adjudicated only by an Industrial Tribunal that can grant adequate remedy to the plaintiff. He submits that the jurisdiction of the civil Court to take cognizance of an industrial dispute is impliedly barred, and
(ii) that in any case the relief claimed by the plaintiff cannot be granted in a civil suit as it is barred under S. 14(1)(b) of the Specific Relief Act.”
8. Section 9 of the Civil Procedure Code provides:
“9. Courts to try all civil suits unless barred — The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation.—…”
There is admittedly no express bar in the Act to civil Court to take cognizance of and try civil suits. There is no dispute that the present suit is a suit of civil nature and, therefore, normally the civil Court has the jurisdiction to try this suit. Trial of suits of civil nature by civil Courts is the rule and the bar of the civil Court to try such suit is the exception. The burden is upon the defendant to prove such bar.
9. Section 2(k) of the Act defines “industrial dispute.” The material portion of the definition may be quoted:
“ ‘industrial dispute’ means any dispute or difference… between employers 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.”
Dispute between an employer and an individual workman is not covered by the definition of “industrial dispute”; the case of an individual workman, however, is also an “industrial dispute” in view of the deeming provision of S. 2A of the Act. The material portion of S. 2A may be quoted:
“2A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute.— Where any employer… dismisses,… the services of an individual workman, any dispute or difference between the workman and his employer connected with or arising out of such… dismissal… shall be deemed to be an industrial dispute notwithstanding that no other workman or any union of workmen is a party to the dispute.”
10. The principles from which the implied bar to the civil Court's jurisdiction can be inferred have been laid down by the Supreme Court in the case of Dhulabhai v. State of Madhya Pradesh [A.I.R 1969 S.C 78]. The first two that are relevant to the facts of the present case may be quoted:
“(1) Where the statute gives a finality to the orders of the special Tribunals the civil Court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil Court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions 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 the 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 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.”
11. The Industrial Disputes Act is a self-contained Act. The object of the Act is to provide for investigation and settlement of industrial disputes. For that purpose the Act provides a scheme for conciliation and settlement, and failing settlement, reference to and adjudication by, arbitration and other means by setting up a number of Industrial Tribunals. Elaborate provisions have been made in the Act regarding the powers of the appropriate Government to make reference to and procedure to be followed by, the Tribunals and the binding character of awards and the implementation thereof.
The reliefs which can be granted by Industrial Tribunals are more appropriate for maintaining industrial peace and unity than can be granted by civil Courts acting within the four corners 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.
The Federal Court in the case of Western India Automobile Association v. Industrial Tribunal, Bombay [A.I.R 1949 F.C 111], has observed:
“Reinstatement is connected with non-employment and is, therefore, within the words of the definition. If there arises non-employment by reason of the termination of employment by the employer, it will be within the jurisdiction of the Tribunal to determine whether the termination was justifiable.
Although the employer may be unwilling to do so, there will be jurisdiction in the Tribunal to direct the employment or non-employment of the person by the employer. That is the same thing as making a contract of employment when the employer is unwilling to enter into such a contract with a particular person. Conversely if a workman is unwilling to work under a particular employer, a trade union may insist on his doing so and the dispute will be about the employment of the workman by the employer and thus become an industrial dispute subject to the award of the Tribunal. Therefore, if the bringing about of such relationship is within the jurisdiction of the Industrial Tribunal, because such disputes are covered by the definition of the expression “industrial dispute” there is no logical ground to exclude an award of reinstatement from its jurisdiction. It can equally direct in the case of dismissal that an employee shall have the relation of employment with the other party, although one of them is unwilling to have such relation.”
Their Lordships proceed:
“Adjudication does not mean adjudication according to the strict law of master and servant. The award of the Tribunal may contain provisions for settlement of a dispute which no Court could order if it was bound by ordinary law, but the Tribunal is not fettered in any way by those limitations.
Once a particular dispute is found to fall under the definition of industrial dispute in the Act, the jurisdiction to decide the same rests with the Tribunal.”
In the case of Rohtas Industries, Ltd. v. Brijnandan Pandey [A.I.R 1957 S.C 1], their Lordships of the Supreme Court have held:
“There is undoubtedly a distinction between commercial and industrial arbitration. Industrial arbitration may involve the extension of an existing agreement or the making of a new one or in general the creation of new obligations or modifications of old ones, while commercial arbitration generally concerns itself with interpretation of existing obligations and disputes relating to existing agreements. A Court of law proceeds on the footing that no power exists in the Courts to make contracts for people, and the parties must make their own contracts. The Courts reach their limit of power when they enforce contracts which the parties have made. An Industrial Tribunal is not so fettered and may create new obligations or modify contracts in the interest of industrial peace, to protect legitimate trade union activities and to prevent unfair practice or victimization. But an Industrial Tribunal cannot ignore altogether an existing agreement or existing obligations for no rhyme or reason whatsoever.”
In the case of Bengal Chemical and Pharmaceutical Works, Ltd. v. Their employees [A.I.R 1959 S.C 633], their Lordships of the Supreme Court have observed:
“The Industrial Disputes Act is intended to be a self-contained one and it seeks to achieve social justice on the basis of collective bargaining, conciliation and arbitration. Awards are given in circumstances peculiar to each dispute and the Tribunals are, to a large extent, free from the restrictions of technical consideration imposed on Courts.”
12. The Madras High Court in the case of Krishnan v. East India Distilleries and Sugar Factories, Ltd. [A.I.R 1964 Mad. 81], has held:
“If the scheme and the provisions of the Industrial Disputes Act are regarded, it would be plain that they impliedly exclude the jurisdiction of the civil Court to try industrial disputes which can well be referred to for adjudication under S. 10(1) of the Act to Labour Court. The very object of the Act is to provide for investigation and settlement of industrial disputes. For that purpose the Act defines ‘industrial dispute’ and draws a scheme for conciliation and settlement, failing settlement reference to and adjudication by arbitration and other means by setting up a series of tribunals, like conciliation boards. Courts of enquiry, Labour Courts and Industrial Tribunals. Elaborate provisions have been made in the Act regarding the powers of the Government to make reference, procedure to be followed by the Tribunals, the binding character of awards and the implementation thereof. The Industrial Disputes Act is, therefore, a self-contained code providing for settlement of industrial disputes by special forums. There is, no doubt, therefore, that the whole object and scheme of the Act is to take away industrial disputes from the purview of civil Courts with a view to secure expeditious and effectual adjudication of such disputes and to serve and promote industrial peace.”
The Madras High Court again in the case of Madura Mills Company, Ltd. v. Guruvammal [1967 — II L.L.J 397] has repeated the same view. In that case the plaintiff filed a suit in the civil Court claiming benefit under S. 25F of the Act and the defendant contended that S. 25F did not apply and that the appropriate remedy of the plaintiff was to approach the Labour Court under S. 33 of the Industrial Disputes Act and that the civil Court had no jurisdiction. It was held by the High Court—
“as the statute creates a special machinery to enforce specially created rights, the parties cannot approach the ordinary civil Court.”
The same view was expressed by the Kerala High Court in Nanoo Asan Madhavan v. State of Kerala [1970 — I L.L.J 272]. There it has been held:
“That a suit challenging the order of retrenchment or of termination of service which would come within the scope of industrial dispute would not lie in a civil Court is no longer open to doubt and the position is well-settled.”
13. Sri B.K Das, learned counsel appearing for the plaintiff-opposite party submits that the plaintiff has no adequate remedy in an Industrial Court as the plaintiff's dispute may not be referred to Industrial Tribunal. His second submission is that the dispute between the plaintiff and the defendants in the present case arises out of a breach of a rule framed under the Industrial Employment (Standing Orders) Act, 1946, and as such the present case can be adjudicated by the civil Court, and in support of his submission he cites a number of decisions.
The learned counsel first relies on Dhulabhai v. State of Madhya Pradesh [A.I.R 1969 S.C 78] (vide supra), in which their Lordships of the Supreme Court have held:
“An exclusion of jurisdiction of the civil Court is not readily to be inferred unless the conditions above set down apply.”
Sri Das submits that the remedy provided by the Industrial Disputes Act is not adequate inasmuch as, he submits, the industrial dispute of the plaintiff may not be referred by the Government to any Tribunal, and in support of his contention he refers to S. 10 of the Act under which a reference is made by the appropriate Government to the Industrial Tribunal, and to Ss. 12(1), 12(4) and 12(5) of the Act. These three sub-sections of S. 12 may be quoted:
“12. Duties of Conciliation Officers.— (1) Where any industrial dispute exists or is apprehended, the Conciliation Officer may, or where the dispute relates to a public utility service and a notice under S. 22 has been given shall hold conciliation proceedings in the prescribed manner.
(4) If no such settlement is arrived the Conciliation Officer shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at.
(5) If, on consideration of the report referred to in Sub-sec. (4), the appropriate Government is satisfied that there is a case for reference to a board, Labour Court, Tribunal or National Tribunal, it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor.”
Learned counsel submits that the defendants are not a utility service and as such under Sub-sec. (1) of S. 12 the powers of the Conciliation Officer to hold a conciliation is discretionary and he may not hold such a conciliation. If no such conciliation is held by the Conciliation Officer, then there would be no report under S. 12(4) of the Act and in that case the Government will have nothing to refer to any Industrial Tribunal. Learned counsel submits that even if the Conciliation Officer submits a report under Sub-sec. (4) of S. 12, the power of the Government to make a reference under Sub-sec. (5) is discretionary and the Government may not make the reference. In fine, he submits, the plaintiff may not get any remedy at all under as such the remedy is not adequate under the Act.
14. The powers of the Government under Ss. 10 and 12 of the Act were considered by their Lordships of the Supreme Court in the case of Bombay Union of Journalists v. State of Bombay [A.I.R 1964 S.C 1617], where their Lordships have observed at page 1621:
“… when the appropriate Government considers the question as to whether a reference should be made under S. 12(5), it has to act under S. 10(1) of the Act, and S. 10(1) confers discretion on the appropriate Government either to refer the dispute, or not to refer it, for industrial adjudication according as it is of the opinion that it is expedient to do so or not. In other words, in dealing with an industrial dispute in respect of which a failure report has been submitted under S. 12(4) the appropriate Government ultimately exercises its power under S. 10(1), subject to this that S. 12(5) imposes an obligation on it to record reasons for not making the reference when the dispute has gone through conciliation and a failure report has been made under S. 12(4)… It is true that if the dispute in question raises questions of law, the appropriate Government should not purport to reach a final decision on the said questions of law, because that would normally lie within the jurisdiction of the Industrial Tribunal. Similarly, on disputed questions of fact, the appropriate Government cannot purport to reach final conclusions, for that again would be the province of the Industrial Tribunal. But it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under S. 10(1) read with S. 12(5), or not. If the claim made is patently frivolous, or is clearly belated, the appropriate Government may refuse to make a reference. Likewise, if the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse, the appropriate Government may take that into account in deciding whether a reference should be made or not. It must, therefore, be held that a prima facie examination of the merits cannot be said to be foreign to the enquiry which the appropriate Government is entitled to make in dealing with a dispute under S. 10(1)….”
15. It is, therefore, clear that when necessary conditions are fulfilled it would be incumbent on the part of the Conciliation Officer to make a failure report and on the part of the Government to make a reference under S. 12(5). Simply because the powers of the Conciliation Officer and the Government are discretionary, it cannot be presumed that no failure report would be submitted by the Conciliation Officer or no reference would be made by the Government unless the matter is frivolous, or belated. Once the reference is made, adequate remedy has been provided to an industrial workman in the Act as seen above.
16. The other branch of the submission of Sri Das is that when an industrial dispute arises out of a contract or for the breach of it, the civil Court has the jurisdiction to take cognizance of the dispute. Learned counsel submits that in the instant case the dismissal of the plaintiff by the defendants was in violation of certain industrial employment standing orders. Section 13A of the Industrial Employment (Standing Orders) Act of 1946, provides:
“13A. Interpretation, etc., of standing orders — If any question arises as to the application or interpretation of a standing order certified under this Act, any employer or workman may refer the question to any one of the Labour Courts constituted under the Industrial Disputes Act, 1947 (14 of 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.”
The above provision of the law clearly lays down that even an application for interpretation of a standing order certified under the said Act may be referred to one of the Labour Courts and a finality has been given to the decision of such Courts.
17. Learned counsel has relied on Tata Chemicals, Ltd. v. Kailash C. Adhvaryu [A.I.R 1964 Guj 265], in which a learned single Judge of the High Court has held (at page 270):
“Where there is a mere breach of a contractual obligation in terminating a contract of master and servant, the dismissal being in breach of contract would only sound in damages and the servant would not be entitled to a declaration that the dismissal is invalid and that he continues in the employment of the master since that would amount to enforcement of a contract of personal service. But where there is a breach of a statutory obligation which prevents the termination of the contract except in the manner prescribed by the statute, the dismissal being in breach of the statute, is null and void and the servant is entitled to a declaration that the dismissal is null and void and that he continues in the employment of the master. There is in such a case no enforcement of the contract of personal service.”
In this case it did not fall for consideration of his Lordship whether a civil Court has jurisdiction to take cognizance of any industrial dispute; what was required to be considered was whether a dismissed industrial workman could be reinstated. Therefore, this decision of the Gujarat High Court is no authority for the proposition that the civil Court has jurisdiction to take cognizance of an industrial dispute.
The next case cited by learned counsel is 1971 All. L.J 822, in which their Lordships of the Allahabad High Court have held:
“Coming to the second point, we find no substance in the contention that the suit is barred by the exception contained in S. 9 of the Code of Civil Procedure. The suit is admittedly of a civil nature and there is no provision of law which may expressly bar the jurisdiction of a civil Court to entertain such a suit. The contention is that if the order could be treated as an order of dismissal of an industrial workman the dispute would be cognizable by an Industrial Tribunal and, therefore, the civil Court would be impliedly precluded from adjudicating upon the legality of the impugned order. It may be noted here that no plea was taken by the appellant in the written statement in the trial Court that the dismissal of the plaintiff had given rise to an industrial dispute. There is also no material for holding that the dispute had at any stage acquired the character of an industrial dispute; as such the matter could not have been adjudicated upon by an Industrial Tribunal and the suit cannot, therefore, be said to be barred by the exception contained in S. 9, Civil Procedure Code.”
In this case the plea that adequate remedy was provided by the Industrial Disputes Act and that the civil Court had no jurisdiction to take cognizance of such a suit, were not taken by the defendant in the written statement and in that view their Lordships held, in the facts of that case, that the civil Court had jurisdiction to try the suit.
In the case of Calcutta Electric Supply Corporation, Ltd. v. Ramratan Mahato [1973 — II L.L.N 100], cited by Sri Das, it has been held in Para. 14 at page 105:
“A case for declaration of a statutory invalidity of an act of dismissal of employee is wholly different from the enforcement of a contract of personal service. The only question requiring consideration is whether any material term of service conditions which are statutory has been violated and if so, such act must be declared to be nullity, as the aggrieved employee under the provisions of the Act, has a legal right under the certified standing orders. Such declaration is different and far from a declaration granting enforcement of personal contract of service or reinstatement of the dismissed workmen and it merely declares that the order of dismissal in breach of statutory conditions of service is invalid and a nullity so that the employment was never terminated and the contract of service continued to be in force. The question as to whether the employer is a statutory person or otherwise is not relevant as the real question is whether the terms of service are statutory and there has been a breach of its material provisions.”
In the above Calcutta case also the learned single Judge considered the question of granting remedy in case of a dismissed workman and the question as to the jurisdiction of Court to take cognizance of an industrial dispute did not fall for his consideration.
The last case cited on this point by learned counsel is Mohammad Ishaq Mohammad Ismail v. Mohammed Bashir Ahmad Khan [A.I.R 1961 Punj. 8], in which the learned single Judge has held at page 10:
“… In order to create a bar of a civil suit in the ordinary Courts, on grounds of necessary intendment, such a bar must be supportable either on general principles of law or on grounds of public policy…. In order to deprive a citizen of his right to claim adjudication of his dispute by the ordinary procedure of a suit, in the Municipal Courts, generally speaking, there is almost invariably some other equally adequate and efficacious mode of adjudication provided by law….”
The rule laid down by his Lordship of Punjab High Court is included in the rule laid down by the Supreme Court in Dhulabhai v. State of Madhya Pradesh [A.I.R 1969 S.C 78] (vide supra), which we have already considered.
18. In the result, therefore, it must be held that the jurisdiction of the civil Court to take cognizance of an industrial dispute is impliedly barred.
19. The only other point canvassed before me is whether, assuming the civil Court has jurisdiction, the plaintiff can get the remedy of reinstatement in a suit. Sri J.P Bhattacharjee, submits that the relief is barred under S. 14(1)(b) of the Specific Relief Act. The decision on the point need not detain us long as the matter has been finally set at rest by the authoritative decision of the Supreme Court in the case of Sirsi Municipality (by its president), Sirsi v. Cecelia Kom Francis Tellis, (Smt.) [1973 — I L.L.N 226], in which their Lordships have held that under the industrial laws a servant who is dismissed may be reinstated. Hence the plaintiff's relief is not barred under S. 14(1)(b) of Specific Relief Act. This submission of the learned counsel for the petitioner has no substance.
20. In view of my finding on the first point in favour of the petitioner, however, the impugned order of the learned Munsiff is set aside. The petition is allowed and the rule if made absolute. I, however, make no order as to costs.