1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant-original defendant- State Bank of Saurashtra (now State Bank of India) to quash and set aside the impugned judgment and decree passed by the learned 2nd Extra Assistant Judge, Rajkot Camp at Gondal dated 29/03/1982 in Regular Civil Suit No. 83/1978 by which the learned trial Court has decreed the suit of the respondent-original plaintiff for declaration declaring the order dated 26/09/1977 discharging him from services with three months notice as void and the subsequent order dated 24/01/1978 as illegal and void and granting declaration that the respondent-original plaintiff is continued on active duties and he shall get the backwages from 28/01/1976 till reinstatement to the extent of 25% only as well as the impugned judgment and order passed by the learned appellate Court in Regular Civil Appeal No. 130/1992 by which the learned appellate Court has dismissed the appeal preferred by the appellant-original defendant confirming the judgment and decree passed by the learned trial Court decreeing the suit.
2. The facts leading to the present Second Appeal in a nutshell are as under;
2.1 The respondent-original plaintiff was serving with the applicant-Bank. It appears that the respondent-original plaintiff was remaining unauthorisedly absent and, therefore, three months notice was given and vide order dated 26/09/1977 his service was terminated with effect from 28/01/1976. Thereafter, one another order was passed. The said order came to be challenged by the respondent-original plaintiff by way of Regular Civil Suit No. 83/1978 in the Court of Civil Judge (Senior Division), Gondal mainly on the ground that the order of termination/discharge is in breach of principles of natural justice, without holding any departmental inquiry and in breach of the standing orders framed under the Industrial Law as well as in breach of Section 25(f) of the Industrial Disputes Act. The suit was resisted by the applicant-original defendant by filing written statement at Exh. 7. It was also contended on behalf of the applicant-original defendant that the suit is not maintainable and/or Civil Court has no jurisdiction to grant the relief, which is sought in the said suit. The suit was resisted on merits also. The learned trial Court framed the issues at Exh. 8. It is required to be noted that the learned trial Court framed issue no. 3 "Whether there is unlawful termination of the respondent-original plaintiff and his services have been terminated in violation of principles of natural justice as well under the provision of the Industrial Disputes Act?" The learned trial Court held the aforesaid issue in the affirmative and consequently decreed the suit and granted the declaration as prayed for. Being aggrieved and dissatisfied with the judgment and decree passed by the learned 2nd Extra Assistant Judge, Rajkot Camp at Gondal dated 29/03/1982 in Regular Civil Suit No. 83/1979 decreeing the suit the appellant-original defendant instituted Regular Civil Appeal No. 130/1982 and the learned District Judge, Rajkot dismissed the appeal confirming the judgment and decree passed by the learned trial Court. Being aggrieved and dissatisfied with the impugned judgment and orders passed by both the Courts below the appellant-original defendant has preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
2.2. While admitting the present Second Appeal, the learned Judge framed the following issues;
"1. Whether in the facts and circumstances of the case the Civil Court was right in holding that the Civil Court has jurisdiction to try and decide the suit?
2. Whether in the facts and circumstances of the case the lower appellate Court was right in holding that the order dated 26/09/1977 discharging the respondent was illegal and void?
3. Whether in the facts and circumstances of the case the lower appellate Court was right in holding that the services of the respondent had been terminated in violation of the principles of natural justice?
4. Whether the lower Courts were right in awarding 25% of the backwages to the respondent from 28/01/1976 when the order discharging the services of the respondent was of 26/09/1976 and the services of the respondent were terminated with effect from 28/12/1977?
5. Whether the Civil Court would have jurisdiction to grant relief of reinstatement of service?
3. Having heard the learned advocates appearing on behalf of the respective parties and considering the impugned judgment and orders passed by both the Courts below as well as the substantial question of law framed by this Court, it appears that the main dispute is with respect to the jurisdiction of the Civil Court in entertaining the suit and granting the reliefs as prayed in the suit. It is an admitted position that in the plaint, it was the specific case on behalf of the respondent-original plaintiff that the order of termination/discharge is in breach and/or in violation of the standing orders framed under the Industrial Law as well as the same is in breach of Section 25 of the Industrial Disputes Act. It is also not in dispute that the learned trial Court/learned appellate Court framed the issues with respect to jurisdiction of the Civil Court and also framed the issue "whether the order of termination/discharge is in breach of Section 25(f) of the Industrial Disputes Act" and, therefore, the order/action of the appellant-original was challenged on the ground that the same is in breach and/or violation of principles of Industrial Disputes Act. Considering the aforesaid facts and circumstances of the case, now the question, which is required to be considered is, whether for the alleged breach and/or violation of the Industrial Disputes Act, the Civil Court would have jurisdiction? The aforesaid question is now not res integra. Identical question came to be considered by the Hon'ble Supreme Court in the case of R.S.R.TC. And Ors.
Vs. Deen Dayal Sharma reported in 2010 (2) GLH
540. In the said decision, Hon'ble Supreme Court had an occasion to consider the jurisdiction of the Civil Court to order reinstatement and grant of financial benefits. After considering number of earlier decisions of the Hon'ble Supreme Court ultimately the Hon'ble Supreme Court in the aforesaid decision has held that the Civil Court has no jurisdiction to entertain and try the suit filed by the respondent-original plaintiff if an employee has claimed his right and there is corresponding obligation in terms of the provisions of the Industrial Disputes Act. It is held by the Hon'ble Supreme Court in the said decision that if an employee intends to enforce his constitutional rights or a right under a statutory regulation, the Civil Court will have necessary jurisdiction to try the suit. However, if he claims his right and corresponding obligation only in terms of the provisions of the Industrial Disputes Act or sister laws so called, the Civil Court will have none. In the case before the Hon'ble Supreme Court an employee instituted the suit challenging the termination on the ground that the same was in breach of Section 25 of the standing orders and also on the ground that the same is in breach of principles of natural justice. To that, the Hon'ble Supreme Court held that the Civil Court had no jurisdiction and the suit was not maintainable. Considering the aforesaid decision of the Hon'ble Supreme Court, the substantial question of law framed by the learned Judge whether the Civil Court would have jurisdiction to entertain the suit is to be answered in favour of the appellant-original defendant by holding that the suit filed by respondent-original plaintiff challenging the order of termination/discharge on the ground that the same is in breach of principles of standing orders framed under the Industrial Law and the same is in breach of Section 25(f) of the Industrial Disputes Act was not maintainable and the Civil Court had no jurisdiction to entertain and try the suit filed by the respondent-original plaintiff. Shri Rana, learned advocate appearing on behalf of the respondent-original plaintiff is not in a position to dispute the same and/or point out any other contrary decision taking the aforesaid view.
4. In view of the above and for the reasons stated hereinabove, on the aforesaid ground alone, i.e. on the ground that the Civil Court had no jurisdiction, the learned trial Court had no jurisdiction to entertain the suit filed by the respondent-original plaintiff, the present Second Appeal deserves to be allowed and the impugned judgment and orders passed by both the Courts below deserve to be quashed and set aside.
5. In view of the above and for the reasons stated hereinabove, the impugned judgment and decree passed by the learned 2nd Extra Assistant Judge, Rajkot Camp at Gondal dated 29/03/1982 in Regular Civil Suit No. 83/1978 as well as the impugned judgment and order passed by the learned appellate Court in Regular Civil Appeal No. 130/1992 are hereby quashed and set aside. Consequently, the suit is dismissed on the ground that the same is not maintainable. No cost.
(M.R.
SHAH, J.) siji Top