2005 Supreme(SC) 1058

2005(5) Supreme 813
Supreme Court of India
(From Rajasthan High Court)
Mrs. Ruma Pal & Dr. AR. Lakshmanan, JJ.
Rajasthan State Road Transport Corporation and Ors. —Appellants
versus
Zakir Hussain —Respondent
Civil Appeal No. 5176 of 2005
(Arising out of SLP (C) No. 5978 of 2003)
Decided on 22-8-2005
Counsel for the Parties :
For the Appellants : Sushil Kumar Jain, A.P. Dhamija and Sarad Singhania, Advocates.
For the Respondent : Anis Ahmed Khan and S. Ahmed Khan, Advocates.

Important pointWhere services of a Conductor appointed purely on ad hoc basis were terminated and he was governed by standing orders of State Road Transport Corporation, only remedy to employee was by way of reference under Industrial Disputes Act.

Headnote:(i) Labour Law—Jurisdiction of Civil Court in industrial disputes—Suit would not be maintainable—Respondent was appointed as conductor purely on ad hoc basis for two years—Appellant Corporation was governed by Standing Orders including terms of appointment­—Respondent himself referred to and relied upon standing order—Only remedy available to res­pondent­ was by way of reference under provisions of Industrial Disputes Act—Impugned judgment passed in suit for declaration and upheld in 2nd appeal by High Court was unsustainable.

       Held : We shall first take up the question which relates to the jurisdiction of the Civil Courts in the industrial matters. The respondent was appointed by the appellant-Corporation on daily wages to the post of conductor. He was put on probation for a period of two years vide Order No. 225 dated 28.03.1984. According to the respondent, he has been working carefully and honestly and continuously. However, his services were terminated without complying with Section 35 of the Standing Orders and without conducting any enquiry and without affording an opportunity of being heard vide order No. 207 dated 08.05.1984. The appeal preferred against the order of termination was also dismissed on 20.10.1984 by the appellate Authorities. A civil suit was, therefore, filed by the respondent to declare that the order of termination being illegal and unconstitutional are liable to be set aside and that the respondent is entitled to continue on the post of the conductor and is entitled to get wages, allowances and other monetary benefits till the relief is given by the Corporation. The appointment order has been filed and marked as Annexure-P5. It is seen from the appointment order that the respondent and several others were appointed as conductors on probation for a period of two years subject to several conditions mentioned in the order of appointment. It is also mentioned that the services of the respondent will be governed by the Standing Orders of the Rajasthan State Road Transport Corporation, Workshop Employees. Two things are clear from the appointment order, (a) the order of appointment is purely on adhoc basis and (b) the respondent was appointed as a daily wage employee and that the probation is for a period of two years.

       Premier Automobiles Limited vs. Kamalakar Shantaram Wadke and Ors., 1975(2) LLJ 445 (Three Judges Bench) is a leading authority on jurisdiction of civil courts in industrial disputes. This Court, after elaborate discussion, held as under:

       “The principles applicable to the jurisdiction of the civil Courts 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 suit or 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 S.33C or the raising of an industrial dispute as the case may be.

       In relation to principle No. 2 stated above, their Lordships feel there will hardly be a dispute which will be an industrial dispute within the meaning of S.2(K) 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 dismissal of an unsponsored workman which in view of the provision of law contained in S. 2A will be an industrial dispute. Civil Courts, therefore, will have hardly an occasion to deal with the type of cases falling under principle 2. Cases of industrial disputes, by and large, are invariably bound to be covered by principle 3 stated above.” (Para 12)

       In the instant case, the respondent was appointed as a conductor purely on ad hoc basis for a period of two years. It is not in dispute that the appellant is governed by the Standing Orders of the Rajasthan State Road Transport Corporation, Workshop Employees and also governed by the terms of appointment. This apart, the respondent has placed reliance on the standing order and, therefore, the only remedy available to the respondent was by way of reference under the provisions of the Industrial Disputes Act. (Paras 16 and 17)

       (ii) Service Law—Appointment on ad hoc basis—Termination—Innocuous order without any stigma would not be open to challenge—Respondent appointed as Conductor on temporary basis was on probation when his ser­vices were terminated—Being a probationer he had got no substantive right to hold the post—Decree in declaration suit granted by Courts below was not sustainable.

       Held : The respondent in the instant case is a temporary employee of the Rajasthan State Road Transport Corporation on probation for a period of two years. His services were terminated by an order of termination simpliciter. The order, in our opinion, is innocuous without any stigma nor evil consequences visiting him. In our view, the order is not open to challenge. (Para 18)

       The respondent is a temporary employee of the Corporation and a probationer and not a Government servant and, therefore, is not entitled for any protection under Article 311 of the Constitution. He was a party to the contract. In view of the fact that the respondent was appointed on probation and the services were terminated during the period of probation simpliciter as the same were not found to be satisfactory, the appellant-Corporation is not obliged to hold an enquiry before terminating the services. The respondent being a probationer has got no substantive right to hold the post and was not entitled to a decree of declaration as erroneously granted by the lower Courts and also of the High Court. (Para 20)

       (iii) Service Law—Constitution of India—Article 311—Employees of the Ccorporation are not civil servants and are not entitled to protection under Article 311 of the Constitution. (Para 24)