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2010 (3) Supreme 718
SUPREME COURT OF INDIA
R. V. Raveendran and R. M. Lodha, JJ.
R.S.R.T.C. & Ors. — Appellants
versus
Deen Dayal Sharma — Respondent
Civil Appeal No. 3027 of 2007
Decided on : 5-05-2010
Facts of the Case :
Respondent a conductor in Rajasthan State Road Transport Corporation was on duty, when a surprise inspection was done and six passengers were found travelling in the bus without tickets. Order was passed dismissing respondent from service . Departmental appeal against the order of dismissal was dismissed . Review Petition before reviewing authority too was dismissed .The respondent then filed a civil suit .Objections thereagainst were filed by Appellants challenging the jurisdiction of civil court on ground that the dispute being an industrial dispute, it could only be resolved by the Industrial Tribunal.Trial Judge overruled the objection raised by appellants about the jurisdiction of the civil court and declared the order of dismissal illegal and ordered reinstatement of respondent and other financial benefits to him.Appeal thereagainst was Dismissed .Second appeal was also Dismissed holding that concurrent finding of facts by courts below warranted no interference.
2.Present appeal has been filed against said order.
Findings of the Court :
The case of the respondent as set up in the plaint, was that in the absence of departmental enquiry as contemplated in Standing Orders, order of dismissal is bad in law. It is true that respondent pleaded that he had been dismissed from service without affording any opportunity of defence and hearing and in breach of principles of natural justice but the said plea had to be understood in the backdrop of his pleading that the dismissal order had been passed contrary to Standing Orders without holding any departmental enquiry. If the infringement of the Standing Orders is alleged, civil court’s jurisdiction may be held to be barred but if the suit is based on the violation of principles of common law or constitutional provisions or on other grounds, the civil court’s jurisdiction may not be held to be barred. Hence , nature of right sought to be enforced is decisive in determining whether jurisdiction of civil court is excluded or not. In the instant case,respondent who hardly served for three months, had asserted his right that the departmental enquiry as contemplated under the Standing Orders, ought to have been held before issuing the order of dismissal and in absence thereof such order was liable to be quashed. Such right, if available, could have been enforced by the respondent only by raising an industrial dispute and not in the civil suit. In the circumstances, it had to be held that civil court had no jurisdiction to entertain and try the suit filed by the respondent. Impugned order of High Court and judgements of the courts below set aside. Appeal was allowed.
JUDGEMENT
R.M. Lodha, J. —
The jurisdiction of civil court to order reinstatement of the respondent and grant of financial benefits of service to him has been questioned in this appeal.
2.The respondent was appointed as conductor by the Rajasthan State Road Transport Corporation - (for short, ‘appellants’) on October 11, 1982. On January 17, 1983, while the respondent was on duty on Badi Chopad - Amer route, a surprise inspection was done and six passengers were found travelling in the bus without tickets. The respondent was dismissed from service vide order dated January 24, 1983. The respondent preferred departmental appeal against the order of dismissal dated January 24, 1983 but the said appeal was dismissed on September 5, 1985. He preferred review before the reviewing authority which too was dismissed on April 13, 1987. The respondent then filed a civil suit in the Court of Additional Munsif and Judicial Magistrate No.2, Jaipur City, Jaipur against the appellants praying therein that the order of dismissal dated January 24, 1983 be declared unlawful, illegal, void and ineffective being contrary to the Standing Orders as no departmental enquiry was held and he be held to be entitled to all benefits as if he continued in service.
3.Although no written statement was filed by the appellants, they challenged the jurisdiction of civil court orally and submitted that the dispute being an industrial dispute, it can only be resolved by the Industrial Tribunal.
4.The Trial Judge after recording the evidence of the respondent, heard parties and overruled the objection raised by the appellants about the jurisdiction of the civil court and vide judgement and decree dated March 6, 1991 declared the order of dismissal dated January 24, 1983 illegal and ordered reinstatement of respondent and other financial benefits to him.
5.The appellants challenged the judgement and decree passed by the Trial Court in appeal before the District Judge, Jaipur City but that was dismissed on the ground of delay on January 20, 2001.
6.The second appeal preferred by the appellants before the High Court was dismissed on November 7, 2005 holding that concurrent finding of facts by the courts below warranted no interference. It is from this order that present appeal by special leave arises.
7.In The Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke of Bombay and Others.1 (1976) 1 SCC 496, a three Judge Bench of this Court considered Section 9 of the Civil Procedure Code, 1908, the provisions of Industrial Disputes Act, 1947 and large number of decisions by this Court, as well as English and other Indian Courts and summed up the principles applicable to the jurisdiction of the civil court in relation to an industrial dispute thus :
“23. ....
(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.”
In paragraph 24 of the report, this Court further clarified:
“We may, however, in relation to principle No. 2 stated 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
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