IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.1662 OF 2014 BETWEEN Sita Rama Balaji Maganti Son of M.V.K.D.S. Prabhakara Rao, Aged about 36 years Presently at Flat No.C2-160, Prestige Palms Apartments, ECC Road, Next to GR Tech Park, Whitefield, Bangalore-560066. …Appellant (By Sri. Pradeep Nayak, Advocate) AND GE India Technology Centre Pvt. Ltd. Represented by its Managing Director John F.Welch Technology Centre 122, Export Promotion Industrial Park, Phase II, Hoodi Village, Whitefield Road, Bangalore-560066. …Respondent (By Sri Manu Kulkarni & Sri.Mrinal Shankar, Advocates) This RFA is filed under Section 96 of CPC, against the order dated 30.10.2014 passed in O.S.9019/2013 on the file of the Presiding Officer, FTRC-VIII, XXXVII-Additional City Civil and Sessions Judge, CCH-38, Bengaluru, rejecting the plaint filed under Order 7, Rule-11(d) of CPC.
This RFA coming on for hearing this day, the court delivered the following:
JUDGMENT By order dated 30.10.2014, the trial Court rejected the plaint by exercising power under Order VII Rule 11 (d) of the Code of Civil Procedure (for short hereinafter referred to ‘CPC’). The trial Court has held that Section 39 of the Karnataka Shops and Commercial Establishments Act (for short hereinafter referred to as ‘the Act’) is a bar to the suit. The legality of this order is the subject matter of this Appeal filed by the plaintiff. Before discussing the legality of this order, the facts of the case, briefly stated are as follows:-
2. Defendant-respondent issued a letter of appointment to the plaintiff-appellant on 17.6.2010 and that the appellant commenced his employment with defendant on 2.8.2010. After serving the defendant company about a year the plaintiff decided to resign from his job and he sent a letter of resignation on 17.7.2011 and requested the defendant to relieve him off his duties with effect from 16.8.2011. The defendant wanted the plaintiff to continue in its company for another six months but the plaintiff was not willing to continue there. Since he did not receive any information from the defendant with regard to his letter of resignation, he insisted the defendant on number of occasion to accept his resignation and at last on 19.8.2011, he received information through e-mail that he would be relieved on 31.8.2011. The plaintiff reluctantly agreed to his being relieved on 31.8.2011. On 30.8.2011 itself the plaintiff completed all the exit formalities as 31.8.2011 was a public holiday. On 30.8.2011, a few minutes before he was to be relieved, the defendant made allegations against the plaintiff that he had committed theft of the data of the defendant company and did not relieve him. The plaintiff did not attend the defendant company from 30.8.2011. At last, he was relieved on 17.11.2011. Therefore, the plaintiff filed a suit seeking declaration that he ceased to be an employee of the defendant with effect from 30.8.2011.
3. The defendant admitted that the plaintiff was its employee and that he submitted his resignation to be given into effect from 16.8.2011, but contended that because of the misconduct of the plaintiff and that he copied confidential data of the defendant company on his laptop and hard disc, the defendant had to relieve him with effect from 17.11.2011.
4. The trial Court framed five issues. Issue No.4 is, “whether this Court has jurisdiction to entertain the suit?”. This issue was treated as a preliminary issue. After hearing the plaintiff and defendant, the trial Court gave a finding that the dispute between the plaintiff and defendant has to be decided by the Labour Commissioner. The trial Court accepted the arguments of the defendants’ counsel that Section 39 of the Act was a bar to the suit. It is only after the Labour Commissioner passes an order, the aggrieved party can approach a District Judge. The defendant company paid salary to the plaintiff up to 17.11.2011 and that the documents produced by the plaintiff reveal that the salary was credited to his account. Prima facie documents did indicate that the plaintiff was the employee of the defendant company up to 17.11.2011. Therefore, the trial Court came to the conclusion that it had no jurisdiction to try a suit of this nature.
5. Assailing the orders passed by the trial Court, the appellant’s counsel argued that Section 39 of the Act was not applicable to the facts pleaded by the plaintiff. The entire case does not within the ambit of this Section. The plaintiff just wants a declaration that he ceased to be an employee of the defendant company with effect from 30.8.2011. This kind of relief can certainly be granted by the Civil Court. This is a suit of civil nature. Labour Commissioner has no jurisdiction. The plaintiff has not claimed any compensation so as to say that the plaintiff could have approached the Labour Commissioner. The trial Court has not applied its mind. In support of his argument, he referred to the judgments of the Supreme Court in the case of THE PREMIER AUTOMOBILES LIMITED VS KAMLEKAR SHANTARAM WADKE OF BOMBAY AND OTHERS [(1976) 1 SCC 496] and RAJASTHAN STATE ROAD TRANSPORT CORPORATION AND ANOTHER VS BAL MUKUND BAIRWA [(2009) 4 SCC 299].
6. The learned counsel for the respondent argued that the relief of declaration that the plaintiff has claimed does not fall within the scope of Section 34 of the Specific Relief Act. Declaration can be granted only when there is infringement of the legal character of the plaintiff. The plaintiff was appointed by the defendant company. His employment was on the basis of a contract which does not give rise to legal character. The defendant relieved the plaintiff with effect from17.11.2011. This decision had to be taken by the defendant company as the plaintiff had committed theft of the data and for this reason he could not be relieved in the month of August 2011. The plaintiff has not pleaded what actually is the injury caused to him if he was not relieved on 30.8.2011. Therefore, the trial Court came to right conclusion to reject the plaint. In support of his arguments, the learned counsel for the respondent has relied on the following four judgments:-
(1) KAMALA AND OTHERS vs K.T.ESHWARA SA & OTHERS [(2008) 12 SCC 661] (2) POPAT AND KOTECHA PROPERTY vs STATE BANK OF INDIA STAFF ASSOCIATION [(2005) 7 SCC 510 (3) PEARLITE LINERS (P) LTD., vs MANORAMA SIRSI [(2004) 3 SCC 172] (4) SALIL KUMAR MUKHERJEE AND OTHERS vs HINDUSTAN STEEL LIMITED AND OTHERS [(1979) 1 SLR 151] 7. From the above arguments, the question that arises for consideration is, whether the declaratory relief sought for by the plaintiff is out of purview of the Civil Court or in other words Section 9 CPC can be employed to hold that the suit is not of civil nature?
8. The first two judgments respondent’s counsel has referred, i..e., Kamala and Popot (supra) deal with the scope of Order VII Rule 11(d) of CPC. It is well settled proposition that for deciding an application under Order VII Rule 11(d), the plaint averments should alone be considered. Therefore, there is no need to refer to these judgments in detail.
9. The Supreme Court in the case of the Premier Automobiles case (supra) has dealt with scope of Section 9 of CPC in relation to labour disputes. The clear observations of the Supreme Court in this case is found in para 23. It is as below : -
“23. 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 its enforcement is either Section 33C or the raising of an industrial dispute, as the case may be.”
10. In Rajasthan State Road Transport Corporation vs Bal Mukund Bairwa (supra), again it is held as below :-
“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.”
11. Learned counsel for the respondent has referred to a judgment of the Supreme Court in the case of Pearlite Liners (supra). In this case, the plaintiff was transferred to Shimoga. She did not report at the place where she was transferred. A departmental enquiry was initiated and she was terminated from the service. Therefore, she brought a suit seeking the following reliefs : -
“(a) Declaring that the transfer order of the plaintiff dated 11.1.86 issued by the secretary of the first defendant company from its Head Office to the Shankar Rice Mill Godown, Shimoga belonging to M/s. Bharath Founders is illegal, void and inoperative and further declare that the plaintiff is to be in the service of the first defendant company and she is entitled to all the emoluments including her salary.
(b) For permanent injunction restraining the defendants from holding any enquiry against the plaintiff on the ground that she has not complied with the order of transfer dated 11.1.86 and she is guilty of insubordination etc. as stated in the articles of charges dated 17-1-87 and enquiry indicated in the notice dated 2-2-87.”
12. In another case, i.e., Salil Kumar Mukherjee (supra) also, the plaintiffs sought a declaration that they are entitled to get seniority from the date of joining their respective posts in Durgapur Unit of the defendant company and not from the date of their joining office at the Central Sales Organisation at Calcutta. The High Court of Calcutta held that the right claimed by the plaintiffs flow from the contract and not from any legal character of the plaintiffs.
13. Therefore, from these judgments, it becomes apparently clear that in relation to matters coming within the realm of special statutes, the jurisdiction of the Civil Court is barred. The two decisions that the respondent’s counsel has cited, i.e., in the case of Pearlite Liners and Salil Kumar Mukherjee (supra) can be distinguished. In Pearlite Liners, the plaintiff wanted a declaration that her transfer was illegal and that she continued to be in the services and in Salil Kumar Mukherjee (supra), the plaintiffs wanted a declaration with regard to their seniority. Therefore, in the facts and circumstances, those reliefs it granted, amounted to enforcing personal services which is opposed to Specific Relief Act.
14. In this case, the trial Court rejected the plaint by exercising its power under Order VII Rule 11(d) of CPC. No doubt, the plaintiff’s employment with the defendant was based on private contract. He does not claim his termination as illegal. All that he has prayed for is declaration with respect to his resignation, which severs his relationship with the defendant. Although the relief that he has claimed is not in the nature of legal character, but it concerns with his right not to continue in the services of the defendant. According to Section 34 of the Specific Relief Act, suit for declaration can be filed not only when there is infringement of legal character but also when a right to property is affected. Property cannot be interpreted narrowly as it always applies either to corporeal or incorporeal. Since Section 34 of the Specific Relief Act is not exhaustive, relief of declaration that the plaintiff has claimed falls within the realm of Section 34 of Specific Relief Act. For this reason, I am the opinion that plaintiff’s suit is of civil nature according to Section 9 of CPC.
15. The trial Court has referred to Section 39 of the Act. If Section 39 is read, it becomes clear that the trial Court has referred to this Section without there being any need. According to Section 39, an employee should not be removed from service except for reasonable cause and unless and until one month’s previous notice was given or pay in lieu thereof has been given to him. Sub-section (2) enables an employee to prefer an appeal if the employer takes action according to sub-Section (1). Sub-section (3) deals with giving compensation to the employee and sub-section (4) deals with preferring an appeal to the District Judge if the employee feels that the compensation given to him is not adequate. If Section 39 is seen, none of the provisions of Section 39 is applicable to the facts of the case. The plaintiff only seeks a declaration that he ceased to be employee of the defendant company with effect from 30.8.2011. He has not claimed any compensation. Therefore, it can be said that the trial Court wrongly applied Section 39 to reject the plaint. For these reasons, the Appeal deserves to be allowed. Hence, the following :
ORDER (1) Appeal is allowed.
(2) The order dated 30.10.2014 passed in O.S. No. 9019/2013 is set aside.
(3) The suit is restored and it is remanded to the trial Court for adjudication according to law.
(4) No order as to costs.
Sd/- JUDGE ckl