1. This appeal under Section 100 of Code of Civil Procedure is filed by the original plaintiff, who had preferred Regular Civil Suit No. 716 of 1985 for declaration to the effect that the departmental inquiry conducted against the appellant as also the final order of dismissal based on the departmental inquiry both were in breach of the principles of natural justice, illegal, unconstitutional and without application of mind.
2. The suit was resisted by the respondents and it was stated that the appellant was dismissed from service after following due procedure of law. The issue was also raised at the instance of the respondent that the Civil Court had no territorial jurisdiction. The learned Trial Judge on appreciation of the evidence, ultimately, dismissed the suit by judgment and decree dated 31.12.1987.
3. The appellant, therefore, challenged the said judgment and decree passed by the Trial Judge in Regular Civil Appeal No. 716 of 1985 in the Court of learned First Joint Civil Judge (Junior Division) at Rajkot.
4. Learned Appellate Judge dismissed the Appeal on the ground that the Civil Court had no jurisdiction to decide the suit of the appellant on the ground that the remedy for the dispute raised by the appellant was before the Industrial Tribunal as per the Judgment of the Hon'ble Supreme Court in the case of Premier Automobile reported in AIR 1973 SC 2238. Learned Appellate Judge has also recorded that since the Appeal was being dismissed only on the ground of lack of jurisdiction of the Civil Court to decide the service matter, the merits of the case were not discussed at the instance of learned advocate for the appellant.
5. This Second Appeal was admitted on substantial question No. 2 formulated in the memo of Appeal. It is reproduced herein below.
“Whether in the facts and circumstances of the case, the court below erred in holding that civil court has no jurisdiction to entertain the suit as the dispute is covered under the Industrial Disputes Act.”
6. On the issue about the remedy to an employee, there were divergent views but now finally the issue about jurisdiction of Civil Court to entertain and decide the dispute of the employee of State Authority including the Corporation is finally decided by Hon'ble Supreme Court in the case of Rajasthan State Road Transport Corporation and another versus Bal Mukund Bairwa (2) reported in (2009) 4 SCC 299.
7. 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.”
8. Learned Advocate Mr. Thakkar has submitted that what was challenged before the Civil Court was legality or otherwise of the order of dismissal in the context of the observance of the principles of natural justice and the procedure of law. He submitted that the civil court itself framed issue No.1, as to whether the the charge sheet, departmental inquiry, show cause notice and the ultimate order of dismissal are illegal and unconstitutional, invalid and required to be set aside or not. He submitted that the very base of the suit for challenge of the departmental inquiry and the ultimate order of dismissal was the non- observance of the principles of natural justice He, therefore, submitted that in view of the above judgment of Hon'ble the Supreme Court, since the violation of the common law as also the constitutional provisions and principles of natural justice was complained of, civil court had jurisdiction to entertain and decide the suit and, therefore, the first appellate court ought not to have dismissed the appeal of the appellant on the ground that the civil court had no jurisdiction. He pointed out that in fact, the respondent had not raised an issue of jurisdiction of civil court on the ground that the civil court will not be competent to decide the challenge to the dismissal order but the only objection raised was about the territorial jurisdiction of the civil court. He ultimately urged to allow this appeal by holding that the civil court has jurisdiction and prayed to remand the matter to the learned first appellate judge to decide the appeal on its own merits.
9. In reply, learned advocate Mr. Ashish Dagli appearing for the respondent corporation has submitted that in fact, there was no question of challenge to the dismissal order on the ground of breach of the principles of natural justice or on the ground of violation of any constitutional provisions because the respondent had followed proper procedure of law before putting an end to the service of the appellant. He pointed out that the civil court had rightly answered all the issues and it was found by the civil court that there was no illegality in the order of dismissal of the appellant from service. He next contended that even before the appellate court, the learned advocate for the appellant had stated that the appellate court may not decide any issue on merits if the appellate court was of the view that the civil court had no jurisdiction. He thus submitted that if, at the instance of the appellant, the learned appellate Judge had not gone into the merits of the case, at this stage, there is no question of sending the matter back to the learned first appellate Judge to decide it on its own merits. He further submitted that the judgment in the above referred case of Rajasthan State Road Transport Corporation (supra) shall have no application to the facts of the present case because the action was taken against the appellant under the provisions of the Regulations applicable to the employees of the Corporation and the appellant who was at the relevant time serving as conductor and found to have committed misconduct, had his remedy before the Industrial Tribunal and, therefore, he urged to dismiss the appeal because as per his submission, appellate Judge had rightly come to the conclusion that the civil court had no jurisdiction.
10. Having heard the learned advocates for the parties and having perused the judgment and decree passed by the courts below, and keeping in mind the ratio laid down by Hon'ble the Supreme Court in the case of Rajasthan State Road Transport Corporation (supra), it appears that the jurisdiction of the civil court is saved for the cases wherein complaint is about violation of the principles of 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 appellant and the ultimate dismissal order both were under the regulation framed by the Corporation. Such regulations have been held to be statutory in nature. Apart from this, even the trial court has framed the main issue as to whether the departmental proceedings as also the ultimate order of dismissal were unconstitutional or not. From the discussion made by the learned trial Judge in the matter, it appears that the appellant put forward his case on the ground that there was gross violation of the principles of natural justice not only during the course of departmental inquiry but also at the time of passing the ultimate order of dismissal. It is another thing whether such contention was accepted by the learned trial Judge or not but it cannot be said that the dispute of the appellant was in any way governed by the provisions of the Industrial Disputes Act, 1947. In fact, there was no violation complained of the provisions of the Industrial Disputes Act, therefore, in my view, learned appellate Judge ought not to have held that the civil court had no jurisdiction to entertain and decide the suit filed by the appellant. Thus, the learned appellate Judge can be said to have failed to exercise the jurisdiction vested in him by dismissing the appeal on such ground.
11. From the pleadings of the parties as also on the basis of the evidence discussed by the learned trial Judge, I am of the view that since the dispute raised by the appellant in his suit was about the violation of the principles of natural justice, based on common law and about the violation of the constitutional rights, the civil court had jurisdiction to decide the suit of the appellant.
12. As regards contention of the learned advocate Mr. Dagli that the learned advocate for the appellant himself has stated before the learned first appellate Judge not to deal with the appeal on merits, and, therefore, this court should not at this stage remand the matter, such contention cannot be accepted for the simple reason that even if such was the statement or argument on behalf of the appellant, then also, when the learned appellate Judge was of the view that the civil court had no jurisdiction, and when the appeal of the appellant was being dismissed only on the ground of jurisdiction, the learned Judge was SA/1/1997 10/10 JUDGMENT otherwise also not required to decide the appeal on merits, therefore, in my view, even if the learned advocate for the appellant had made such statement, it would be of no relevance especially when this court has found that the civil court had jurisdiction.
13. In view of the above, appeal is required to be allowed and the same is accordingly allowed. Judgment and decree passed by the learned Assistant Judge, Rajkot in Regular Civil Appeal No. 18 of 1988 dated 14.8.1996 is hereby quashed and set aside and the matter is remanded to the first appellate court to decide the appeal on its own merits on the basis of the evidence available on record. The learned first appellate Judge shall make endeavour to decide the appeal within six months from the receipt of the judgment and order of this Court.
(C.L. Soni,J.) an vyas