JUDGMENT O.P. Saxena, J.
1. This is an appeal against the order dated 25th May 1983 passed by the IX Additional District Judge, Allahabad holding that the suit is not barred by the Industrial Disputes Act, and is also not premature, and directing that the record be sent to the trial Court with the direction to restore the suit and to decide it in accordance with law.
2. The facts giving rise to this appeal are:
3. The plaintiff is an employee of defendant No. 1. He was served with a chargesheet dated 29th April 1981. On 8th May 1981, an Enquiry Officer was appointed. On 24th August 1981, the Enquiry Officer submitted a report. On 9th September 1981, a show-cause-notice was issued to him as to why he should not be dismissed from service. The plaintiff filed a suit for declaration that the charge-sheet dated 29th April 1981, the order dated 8th May 1981 appointing an Enquiry Officer, the enquiry report dated 24th August 1981 and the show-cause-notice dated 9th September 1981 are illegal, inoperative and without jurisdiction. He also prayed for a permanent injunction restraining the defendants from dismissing him from service. The suit was contested by the defendants on the pleas inter alia that it was not maintainable besides being premature. The trial Court accepted both these pleas and dismissed the suit. The appellate Court reversed the findings of the trial Court, allowed the appeal and sent back the case for disposal in accordance with law. Hence this appeal.
4. Both the parties have placed reliance before me on the case of the Premier Automobiles Ltd. v. Kamlakar Shantaram 1975 II LLJ 445.
5. On page 459 para No. 23 of the report reads as follows:
To sum up, the principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute may be stated thus:
(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the Civil Court.
(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the Civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.
(3) If the Industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.
(4) If the right which is sought to be enforced is a right created under the Act such as Chapter VA then the remedy for the enforcement is either Section 33C or the raising of an industrial dispute, as the case may be.
Para No. 24 of the report reads as below:
We may. however, in relation to principle tated above hasten to add that there will hardly be a dispute which will be an industrial dispute within the meaning of Section 2(k) of the Act and yet will be one arising out of a right or liability under the general or common law only and not under the Act. Such a contingency, for example, may arise in regard to the dismissal of an unsponsored workman which in view of the provision of law contained in Section 2A of the Act will be an industrial dispute even though it may otherwise be an individual dispute. Civil Courts, therefore, will have hardly an occasion to deal with the type of cases falling under principle. Cases of industrial disputes by and large, almost invariably. ; are bound to be covered by principle stated above.
6. Section 2(k) of the Industrial Disputes Act. 1947 provides as below:
"Industrial dispute" means any dispute or difference between employers and employers or between employers and workmen, or between workmen 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.
7. In Titagarh Jute Factory Co. Ltd. v Sriram Tewari 1979 Lab IC 513 (Cal) it was held, that under Clause (k) Section 2 of the Industrial Disputes Act, 1947, an industrial dispute does not become an industrial dispute till such dispute is taken up either by the union or a number of workmen. Dispute between employer and employee regarding employee's correct date of birth was not held to be barred by the Industrial Disputes Act.
8. In Indian Oxygen Ltd. v. The Workmen Employed by Indian Oxygen Ltd. 1979 II LLJ 266 it was again held that an industrial dispute cannot, however, be said to be an industrial dispute unless of course the other workmen associate themselves with it.
9. The definition of Section 2(k) referred to above also shows that dispute has to be between employer and workmen and industrial dispute can also be sponsored by a trade union or by a large number of other workmen. It is no body's case that the dispute in the present case has been so sponsored. In the circumstances of the case, the dispute in the present case does, not fall within the definition of 'industrial dispute' as given in Section 2(k) of the Industrial Disputes Act. The case is covered by the first clause of the four principles enunciated in the case of "Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke, (supra) and is maintainable in a Civil Court.
10. The dismissal of the respondent during the pendency of the suit will not affect the jurisdiction of the Court exercised at the time the suit was filed. It is true that Section 2-A provides a forum for the settlement of a dispute raised by an industrial workman. Section 2. A may be quoted below:
2-A. Dismissal etc., of an individual workman to be deemed to be an industrial dispute. Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that I workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.
11. Had the respondent been dismissed prior to the filing of the suit, Section 2A would have barred the filing of the suit in the Civil Court. As the respondent has been dismissed during the pendency of the suit there is nothing in Section 2(k) which may oust the jurisdiction of the Civil Court in respect of a pending matter. On the request of the learned Counsel for the appellant, the case was adjourned to enable him to show law on this point but he has not been able to show any law. The jurisdiction of the Court is not ousted by the dismissal of the respondent during the pendency of the suit.
12. In view of the above discussion, the Court below rightly held that the suit is not barred by the Industrial Disputes Act, 1947.
13. The appellant had also raised the plea of maintainability before the trial Court. The trial Court had decided the point against the respondent. The lower appellate Court did not consider the finding of the trial Court on this point. While my attention was being drawn to Sections 14 and 41 of the Specific Relief Act, 1963, the learned Counsel for the respondent submitted that the jurisdiction of a Court to entertain a suit or the maintainability of a suit is entirely different from what relief may be ultimately granted. In view of the fact that the plaint may have to be amended, I deem it proper that the question of maintainability of the suit may be considered afresh by the trial Court after the plaint has been amended.
14. Before parting with this case, I may observe that I am not directing the plaintiff to make amendment in the plaint. It will be open for him to move for the withdrawal of the suit if so advised, and seek his remedy elsewhere.
15. With the above observations, the appeal is dismissed. There will be no order as to costs.