JUDGMENT P.K. Chatterji, J.
1. This appeal has been filed under Section 100, C.P.C. against the judgment and decree dated 29.11.1988 in Civil Appeal No. 402 of 1981, Madho Prasad v. Cantonment Board, Faizabad, passed by Sri O. P. Verma, Second Additional Civil Judge, Faizabad allowing the appeal of the respondent with costs and setting aside the judgment and decree dated 22.10.1980 passed by Vth Additional Munsif, Faizabad in Regular Suit No. 74 of 1979 by which the suit of the respondent was dismissed with costs.
2. Facts of the case are that the respondent, Madho Prasad Yadav was appointed initially on 11.2.1970 till 19.10.1970 on the post of Octroi Moharrir which used to be sanctioned from time to time. During the period commencing from 11.2.1970 to 21.7.1974 his services were terminated several times and appointed afresh. In the last, the sanction had expired on 21.07.1974 and the post was not sanctioned further and the respondent was not given further appointment. The respondent filed a suit for declaration in the Court of Munsif, Faizabad which was dismissed with costs against which the respondent preferred appeal before the District Judge, Faizabad which was allowed vide judgment and order dated 29.11.1988 thereby setting aside the decree passed by the Munsif and declined that the termination order of the respondent was illegal. Aggrieved, the appellant has preferred this appeal.
3. Heard Km. Pratima Devi, learned Counsel for the appellant as well as Sri Uday Bhan Pandey, learned Counsel for the respondent.
4. Learned Counsel for the appellant has argued that the clerk engaged in collection of octroi in Cantonment Board is not an employee of Industry and the civil court had no jurisdiction to award any relief which can be granted under Section 2(j) of Industrial Disputes Ad. The learned appellate court has further erred in not considering the fact that the post held by the respondent was sanctioned for a specific period and was extended from time to time only upto a certain period and, as such, the respondent could not be appointed for indefinite period. She further argued that the time bound appointment of the respondent was under the contract of service duly accepted by him and he was stopped for raising any plea contrary to it. She further argued that the provisions of Industrial Disputes Act are not applicable in the instant case because the appellant is not an 'Industry' and the matter in question was not an 'Industrial' Disputes and the suit of the respondent was beyond the jurisdiction of the appellate court as the suit for declaration simplicitor was not maintainable without asking for consequential relief. She has placed reliance upon a decision in Jitendra Nath Viswas v. Empire of India and Ceylone Tea Co. and Anr. , in which it has been held that the scheme of the Industrial Disputes Act clearly excludes the jurisdiction of the civil court by implication in respect of remedies which are available under this Act and for which a complete procedure and machinery has been provided in this Act.
5. It has been argued by learned Counsel for the respondent that the mandatory provisions of the Industrial Disputes Act, particularly Section 25F of the Act, have not been followed. Learned Counsel for the respondent has further argued that the civil court has jurisdiction as per decision of Hon'ble Supreme Court in Ram Swaroop and Ors. v. Shikhar Chand and Anr. , in which it has been held that the bar created by the relevant provisions of the statute excluding the jurisdiction of the civil courts cannot operate in cases where the plea raised before the civil court goes to the root of the matter and would, if upheld, lead to the conclusion that the impugned order is a nullity.
6. Section 25F of Industrial Disputes Act reads as under :
25F. Conditions precedent to retrenchment of workmen.--No workmen employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until :
(a) The workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice.
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay (for every completed year of continuous service) or any part thereof in excess of six months, and
(c) notice in the prescribed manner is served on the appropriate Government (or such authority as may be specified by the appropriate Government by notification in the Official Gazette.)
7. Thus, it is clear that any employee who is in continuous service for not less than one year, cannot be retrenched until the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay (for every completed year of continuous service) or any part thereof in excess of six months.
8. Learned Counsel for the respondent has further relied upon a decision in Radhey Shyam and Anr. v. Sarvanand Upadhaya and Anr. 1991 (2) AWC 1226 : 1992 (10) LCD 72, in which it has been held that rule of procedure has been provided with a view to do complete justice between the parties and not an end in themselves, rule of procedure are instruments to achieve justice and are not hurdles to obstruct the pathway to justice.
9. Learned Counsel for the respondent could not place before me any law to how as to whether civil court is empowered to grant restoration of service arising out of Industrial Disputes Act. The first appellate court has held that the plaintiff had been in continuous service since 11.2.1970 till termination. The appellate court has also decreed that the respondent is entitled for restoration of services as well as the benefits thereof.
10. It is transparent from the finding of lower appellate court that he has been in continuous service till date of termination and in the termination order neither he was paid compensation which shall be equivalent to fifteen days' average pay (for every completed year of continuous service) or any part thereof in excess of six months. It has been reiterated that the civil court has jurisdiction when the order is illegal. But, simultaneously it has to be seen whether there exists alternative remedy or not. It is not disputed that restoration of service could be passed only under Industrial Disputes Act.
11. Under Industrial Disputes Act there is no specific power mentioned that the compensation under Section 25F shall be only cognizable by the Industrial Disputes Act. Therefore, the common law to damages arises out of non-action on the part of the authorities, would be cognizable by the civil court, but simultaneously there is no provision given for restoration of services by the civil court.
12. Section 11A of Industrial Disputes Act further provides Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen. It reads as under :
Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a labour court, Tribunal or National Tribunal or National Tribunal for adjudication and, in the course of adjudication proceedings, the labour court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workmen on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require :
Provided that in any proceedings under this section the labour court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.
13. In the circumstances, the order of reinstatement passed by the civil court could have been cognizable only when there was no alternative remedy available to the respondent.
14. In the circumstances, the appeal is partly allowed so far as the restoration of service of the respondent is concerned but it is decreed for the payment of compensation equivalent of 15 days' average pay for every completed year of continuous service, as held by the appellate court and also one month's salary when his services were terminated with the cost of Rs. 2,000 payable to the respondent. The decree for restoration of service of the respondent is set aside.