1. Heard learned counsel for the parties.
2. The Gujarat State Road Transport Corporation and other – appellants-original defendants have approached this Court by way of this Second Appeal challenging the operative part of the decree passed in Regular Civil Appeal No. 30 of 2002 by the District Judge, Rajkot dated 21.9.2006 only to the extent that it contains direction to the appellants to maintain status- quo regarding service of the original plaintiff till he exhausts the alternative remedy, on the ground that said direction could not have been passed when the Court had upheld the contention that dispute of such nature was beyond the purview of Civil Court and party was relegated to the remedy.
3. On 28.02.2008, this Court (Coram: R.H.Shukla, J.) issued notice to the respondent, which was made returnable on 18.03.2008 with a clear understanding that notice was being issued for hearing and finally disposing of the appeal. Both the counsels have agreed that the Second Appeal could be decided and disposed of finally looking to the limited controversy in the matter and the matter could be proceeded with on the basis of settled legal proposition of law without elaborate referring to the other documents of records and proceedings.
4. Facts in brief deserve to be set out as under for appreciating the controversy in the matter.
5. The plaintiff-an employee of the Gujarat State Road Transport Corporation filed Regular Civil Suit No. 291 of 1996 for declaration and permanent injunction against his order of dismissal, which was result of Departmental Inquiry in the incident of an accident, which has resulted into death of one child. The plaintiff was driver of the bus. The suit was decreed on 9.3.2000 and therefore, being aggrieved by the said judgment and decree, present appellants preferred Regular Civil Appeal No. 30 of 2002 in the Court of District Judge, Rajkot interalia on the ground that in view of the established provisions of law and the decision of the Apex Court, the dispute of such a nature could be examined only by the competent forum namely Industrial/Labour Court under the Industrial Disputes Act, 1947 and the Civil Court is ousted. The Appellate Court accepted the contention and allowed the appeal vide order dated 21.9.2006. However, while allowing the Appeal, the Appellate Court directed the present appellants to maintain status-quo with regard to service of the original plaintiff-bus driver till he exhausts the remedy under the Industrial Disputes Act. Being aggrieved by the aforesaid direction of the Appellate Court, the appellants have preferred present Second Appeal. As it is stated hereinabove, with the consent of counsel of both the side, the matter was taken up for final disposal today.
6. Shri Raval, learned counsel appearing for the appellants submits that when the first Appellate Court had accepted the contention with regard to jurisdiction, it ought not to have issued any direction with regard to maintaining status-quo as when the Court has no jurisdiction to decide the matter, it could not have given any interim relief and on that basis, the appeal deserves to be allowed.
7. Shri Shelat, learned counsel appearing for the respondent-original plaintiff has submitted that the jurisdictional aspect could be said to be not yet crystallized in view of the decision in case of RAJASTHAN STATE ROAD TRPT. CORPN. & ANR.
VS. BAL MUKUND BAIRWA, reported in 2008(8) Scale p.424. However, he candidly submitted that this contention could have been raised only when the plaintiff had filed any cross appeal. In the instant case, as there is no cross appeal preferred by the original plaintiff, he cannot advance this submission. He submitted that the present respondent – original plaintiff has put in long service as a Driver and he is at the fate end of his service and the order of the first Appellate Court is merely enabling him to approach the forum under Industrial Disputes Act so that appropriate interim order could be obtained and no irreversible situation may arise and therefore, this order cannot be said to be absolutely without jurisdiction and/or illegal so as to warrant any interference of this court and requested that the second appeal be dismissed.
8. This Court has heard learned counsel for the parties and perused the papers. The Court is unable to accept the submission of Shri Shelat in view of the fact that even if it is assumed for the sake of examining the submission that jurisdictional error has yet not attained finality in view of the decision in case of Rajasthan State Road Transport Corporation (Supra). The facts remain to be noted that the plaintiff respondent has not preferred any cross appeal challenging the decision of the first Appellate Court and therefore, this submission is rightly been given up by the counsel for the respondent. The fact remains that the Appellate Court has examined and accepted the stand of the present appellants-original defendants with regard to jurisdictional aspect and held that the right forum to pursue this cause is the forum established and constituted under the Industrial Disputes Act, 1947. Having come to this conclusion, question arises how far the Court was justified in issuing a direction, which in fact a direction amounting to granting some interim relief so as to enable the plaintiff to obtain some interim relief and meantime, he may not be terminated.
9. The Apex Court in case of THE STATE OF ORISSA VS. MADAN GOPAL RUNGTA, reported in AIR 1952 SC p.12 and even the Division Bench of this Court in case of STATE OF GUJARAT VS. NIRMALABEN WAGHELA, reported in 2003(1) GLH p.434 in unequivocal terms held that such a direction would not be permissible when the Court is not examining the matter on merits and relegated the party to the alternative remedy. In the instant case, the original plaintiff is relegated to avail the remedy under the provisions of the Industrial Disputes Act and therefore, the Civil Court ought not to have issued such direction. The direction of the Civil Court to maintain status-quo being contrary to law, deserves to be quashed and set aside and is hereby quashed and set aside to that effect only. The Second Appeal succeeds to the aforesaid extent. No order as to costs.
10. In view of the order passed in Second Appeal No.
183 of 2007, Civil Application No. 12336 of 2007 does not survive and is disposed of accordingly.
(S.R.BRAHMBHATT, J.) pallav