[1] This appeal under Section 100 of the Code of Civil Procedure is filed by the original defendant, against whom the respondent herein had filed Regular Civil Suit No.45 of 1992 seeking declaration that the order dated 05.03.1992 dismissing the respondent from service is illegal and void and the respondent be declared to have continued in service with further prayer for permanent injunction.
[2] It is the case of the respondent in the suit that the respondent was serving as Conductor with the appellant – Corporation, that the charge-sheet dated 09.05.1991 was issued by the appellant – Corporation alleging that the respondent had remained absent for a period from 27.02.1991 to 09.05.1991 on the ground of his sickness without support of any medical certificate, that the respondent had committed breach of circulars of the Corporation and committed misconduct under the Rules of the Corporation, that though during the inquiry, the respondent had produced documentary evidence of medical papers, still ignoring such documentary evidence, the finding was recorded that the respondent had not remained present for no sufficient cause, that on the basis of such finding the dismissal order was issued which was non-speaking order, that the dismissal order neither discussed the circumstances come on record by way of documentary evidence nor the other evidence and that such dismissal order was illegal and avoid. It is further the case of the respondent that the inquiry proceeded against the respondent was in gross violation of principles of natural justice. It is also the case of the respondent that the appellant could not have proceeded under the regulations claimed by the appellant as the same was not sanctioned by the Government and, therefore, the disciplinary inquiry conducted against the respondent, was not binding to the respondent. The respondent also challenged the provisions of regulations framed by the appellant – Corporation in the suit on the ground that the regulation 80 was ultra vires and such challenge could only be brought before the Civil Court.
[3] The suit of the respondent was resisted by the appellant – Corporation by filing the written statement at Ex.23 contending inter alia that the respondent had committed misconduct under the Rules and Regulations of the Corporation, therefore action was taken in the interest of the appellant - Corporation, that the respondent was given proper and sufficient opportunity in the inquiry, that since the respondent had not filed any proceedings under the Industrial Disputes Act, it was not open to the respondent to file the suit in the Civil Court.
[4] The learned trial Judge framed the following issues at Ex.57 and answered the same as under :-
“1. Whether the plaintiff proves that the impugned order is illegal and void?
2. Whether plaintiff has got cause of action and does he prove it ?
3. Whether this court has no jurisdiction ?
4. Whether the suit is properly valued ?
5. What order and what decree ?
My answer on the aforesaid issues is as under.
1. In the affirmative.
2. In the affirmative.
3. In the negative.
4. In the affirmative.
5. As per the final order.”
[5] On the basis of the evidence available on record, the learned trial Judge decreed the suit and declared the order of dismissal as illegal and void and also declared the respondent to have continued in service irrespective of the order of dismissal with 50% of the backwages.
[6] The appellant – Corporation challenged the above judgment and decree by filing Regular Civil Appeal No.46 of 1995. The learned Appellate Judge on independent appreciation of evidence available on record, declared that the order of dismissal of the respondent from service was in breach of principles of natural justice and also in violation of the provisions of the Rules and Regulations. The learned Appellate Judge also found that since complaint was made about the violation of the principles of natural justice and since the regulation 80 of the Corporation was without previous sanction of the government, the Civil Court was competent to entertain and decide the suit. Learned Appellate Judge also concurred with the findings recorded by the trial Court that the order of dismissal was contrary to the principles of natural justice and in violation of the provisions of the statutes and accordingly, the learned Appellate Judge not only dismissed the appeal but also allowed the cross objections of the respondent and held the respondent entitled for 100% backwages subject to lawful deduction from the backwages by the appellant – Corporation.
[6] This appeal was admitted by order dated 31.07.1997 on following substantial questions of law.
(i) Whether the Civil Court has jurisdiction to entertain the suit where, in case of dismissal of an employee, relief for reinstatement and backwages is claimed ?
(ii) Whether the Courts below were right in coming to the conclusion that Rules framed by the Corporation without previous sanction of the Government are found ab initio ?
[7] On the first substantial question of law, it is required to be noted that on the issue about the remedy to an employee, there were divergent views. However, now, the question about the Civil Court’s jurisdiction to entertain and decide the dispute touching the service matter is finally decided by the Hon’ble Supreme Court in the case of Rajasthan State Road Transport Corporation and another Vs. Bal Mukund Bairwa (2), reported in (2009) 4 SCC 299.
[8] In the said case, Hon'ble the Supreme Court has held that whether a suit is maintainable in civil court or employee should raise dispute before the labour court, depends upon the nature of the dispute and the issues involved. If the dispute arises out of rights and obligations under the ID Act or sister laws like Industrial Employment (Standing Orders) Act, 1946, civil court's jurisdiction is barred. If, however, employer-employee dispute(s) pertain to matters like non- observance of principles of natural justice or constitutional provisions, civil suit is maintainable. Following observations of Hon'ble the Supreme Court in the said judgment needs to be reproduced:
“33. A dispute arising in between an employer and employee may or may not be an industrial dispute. The dispute may be in relation to or arising out of a fundamental right of the employee, or his right under a Parliamentary Act and the Regulations framed thereunder, and/or a right arising under the provisions of the Industrial Disputes Act or the sister laws and may relate to same or similar rights or different rights, or even may be based on common law right or contractual right. The question in regard to the jurisdiction of the civil court must, therefore, be addressed having regard to the fact as to which rights or obligations are sought to be enforced for the purpose of invoking or excluding the jurisdiction of a civil court.
36. If an employee intends to enforce his constitutional rights or a right under a statutory Regulation, the civil court will have the necessary jurisdiction to try a suit. If, however, he claims his right and corresponding obligations only in terms of the provisions of the Industrial Disputes Act or the sister laws so called, the civil court will have none. In this view of the matter, in our considered opinion, it would not be correct to contend that only because the employee concerned is also a workman within the meaning of the provisions of the 1947 Act or the conditions of his service are otherwise governed by the Standing Order certified under the 1946 Act ipso facto the Civil Court will have no jurisdiction. This aspect of the matter has recently been considered by this Court in Rajasthan State Road Transport Corporation and Ors. vs. Mohar Singh [(2008) 5 SCC 542]. The question as to whether the civil court's jurisdiction is barred or not must be determined having regard to the fact of each case.
37. If the infringement of Standing Order or other provisions of the Industrial Disputes Act are alleged, the civil court's jurisdiction may be held to be barred but if the suit is based on the violation of principles of common law or constitutional provisions or on other grounds, the civil court's jurisdiction may not be held to be barred. If no right is claimed under a special statute in terms whereof the jurisdiction of the civil court is barred, the civil court will have jurisdiction.”
[9] So far as the second substantial question of law is concerned, both the learned advocates have stated that the Rules and Regulations framed by the appellant – Corporation are held to be statutory. Therefore, the second question now would not be required to be answered or decided.
[10] On the first substantial question of law, I have heard learned advocates for the parties.
[11] Learned advocate for the appellant has submitted that there was no question of challenge to the order of dismissal on the ground of violation of principles of natural justice. He submitted that the inquiry was held against the respondent on the charge of misconduct of remaining absent from service by the respondent and in the inquiry, finding was recorded to the effect that the respondent had remained absent from service without any sufficient cause and, therefore, the respondent was dismissed from service as such absence was found not in the interest of the appellant – Corporation. Learned advocate for the appellant submitted that there was no question of challenge to vires of regulation before the Civil Court and both the Courts below have committed serious error in coming to the conclusion that since there was no sanction by the State Government to the regulation of the appellant - Corporation, the dismissal order could not have been passed on the basis of inquiry held against the respondent under the regulations. He submitted that not only the regulations are found to be statutory in nature but whether there was sanction by the State Government or whether the regulations are ultra vires. He, therefore, submitted that both the Courts below have exceeded their jurisdiction in coming to the conclusion that the regulation was since without sanction by the State Government, the same was illegal and could not have been relied on by the appellant – Corporation for dismissal the respondent from the service. He submitted that simply because there was allegation that inquiry was not concluded to the satisfaction of the respondent, that would never be a ground to say that there was violation of principles of natural justice, while conducting the departmental inquiry and passing dismissal order. He submitted that in the facts of the case, the Civil Court had no jurisdiction to entertain the challenge against the order of dismissal passed by the appellant. He, thus, urged to allow this Second Appeal on the first substantial question of law by holding that the Civil Court has no jurisdiction to entertain the suit and to set aside the dismissal order of the respondent, by granting the relief for reinstatement and backwages as claimed.
[12] In reply, learned advocate for the respondent submitted that to decide the jurisdiction of the Civil Court in service matters what is required to be seen is whether the challenge in the civil suit was under a common law for violation of principles of natural justice as well as breach of constitutional provisions. He submitted that the case of the respondent in the suit from the beginning was that appellant – Corporation was a State under Article 12 of the Constitution of India and bound to follow the provisions of Articles 14, 16 and 21 of the Constitution and also the principles of natural justice. He submitted that there was a clear case put up by the respondent to the effect that the order of dismissal dated 05.03.1992 was in gross violation of the breach of the principles of natural justice during the inquiry and was a non-speaking order, and that such order of dismissal was illegal and void and, therefore, the respondent was required to be declared as continued in service. He submitted that there was no complaint of the respondent for violation of any provision of the Industrial Disputes Act. He, therefore, submitted that in view of the judgment of the Hon’ble Supreme Court in the case of Rajasthan State Road Transport Corporation and another (Supra), the Civil Court had jurisdiction to decide the suit of the respondent and in view of the ratio laid down by the Supreme Court, he urged to dismiss the second appeal. He submitted that since no other grievance was raised by the appellant and since the appeal was admitted mainly on the point of jurisdiction of the Civil Court, the appeal may be dismissed.
[13] Having heard learned advocates for the parties and having perused the judgment and decree passed by both the Courts below and keeping in mind the ratio laid down by the Supreme Court in the case of Rajasthan State Road Transport Corporation and another (Supra), it appears that the jurisdiction of the Civil Court is saved for the cases wherein the complaint is about violation of the principles of the natural justice or the constitutional provisions or violation of the statutory rules. It is required to be noted that the departmental proceedings initiated against the respondent and ultimate dismissal order both were under the regulations framed by the appellant. Though this Court is of the view that both the Courts below ought not to have gone into issue as to whether the regulations were having sanction of the government, however, such would not make any difference for deciding the second appeal on the issue of Civil Court’s jurisdiction. Apart from this, the regulations of the appellant have already been held to be statutory in nature and, therefore, when the inquiry proceedings initiated under the regulations and ultimate dismissal order was also passed under the regulations, the question as to whether was it open to the Civil Court to examine the order of dismissal on the ground of violation of the principles of natural justice or violation of the constitutional provision was still open. It appears from the judgment of the trial Court that the issue about jurisdiction was framed and the trial Court took note of grounds of the challenge to the dismissal order. It is found by both the Courts below that the order of dismissal was bad in law because of non-observation of the principles of natural justice. As discussed above, when the order of dismissal was challenged on the ground of violation of principles of natural justice and also on the ground that the same was non- speaking order and since this Court finds that there was no complaint about violation of the provisions of the Industrial Disputes Act, following the principles of law laid down by Hon'ble Supreme Court in the case of Rajasthan State Road Transport Corporation and another (Supra), I find that both the Courts below have not committed any error in holding that Civil Court has jurisdiction to decide the suit of the respondent. From the pleadings of the parties as also on the basis of the discussion by the Courts below, I am of the view that since the dispute raised by the respondent in his suit was about the violation of the principles of natural justice based on common law and about violation of the constitutional rights of the respondent, the Civil Court has jurisdiction to decide the same.
[14] In view of the above, this appeal is required to be dismissed and accordingly, the same is dismissed.
[15] In view of the order passed in the Second Appeal, the Civil Application would not survive and hence, the same is disposed of.
[ C. L. SONI, J. ] vijay