JUDGMENT :

1. Second Appeal No. 164 of 2002 has been filed by the Appellants who were the Original Plaintiffs. Working as Daily Wagers in the Municipal Borough and apprehending their termination from service, they had preferred Regular Civil Suit No. 655 of 1984 in the Court of the learned Civil Judge (SD) at Junagadh praying for a declaration that they were permanent employees of the Manavadar Municipality and that they cannot be removed from services without following due process of law especially without following the provisions of the Industrial Disputes Act,1947.

2. Several issues were framed by the learned trial judge in the suit. By a judgement and decree dated 01/04/1997, the learned Civil Court partly allowed the suit holding that the plaintiffs were not to be terminated except in accordance with law. The trial court further held that the suit was not maintainable under the provisions of Section 9 of the Code of Civil Procedure and accordingly the suit was dismissed.

2.1 The appellants therefore filed a First Appeal before the Joint District Judge Junagadh being Regular Civil Appeal No.23 of 2001. The appellate court after reproducing the reliefs that the appellants had prayed for, opined that it was the case of the appellants that they were working as clerks, watchman etc. on a daily rate basis and they were working for more than 240 days and therefore their services could not have been terminated without following the provisions of the Industrial Disputes Act, 1947.

2.2 The Panchayat and the Borough had objected to the maintainability of the suit and also contended that the appellants were engaged depending on exigencies of work, without considering their educational qualification and therefore their appointments were not in accordance with recruitment rules. After extensive reproduction of the provisions of the definitions of "industrial dispute", "workman", the appellate court, relying on the decision of the Supreme Court in the case of Chandrakant Tukaram Nakum vs. Municipal Corporation of the City of Ahmedabad (AIR 2002 SC 997) held that where dispute is an industrial dispute and it arises out of the rights and liabilities arising out of the provisions therein, a special remedy is provided by that statute and the relief can only be granted by the Tribunal or Labour Court established under the provisions of the said Act and therefore a civil suit is barred. Accordingly, while dismissing the appeal by an order dated 14th October 2002 the appellate court confirmed the decree passed by the trial court.

2.3 The present second appeal therefore has been filed by the appellants challenging the concurrent findings of the Courts below.

3. On 23/06/2011, this Court admitted the Appeal and framed the following substantial questions of law for determination before this court.

"ADMIT.

4 The following substantial questions of law arise for determination before this Court :-

"1. Whether the Courts below have materially erred in law in mis-appreciating the evidence on record and in not granting the declaration and injunction as sought for in the suit, while holding that the concerned respondents original defendants could not terminate the services of the plaintiffs without following the due process of law?

2. Whether the Courts below have materially erred in law in holding that the Civil Court did not have the jurisdiction to try the suit and grant the reliefs, as prayed for, in the suit?"

4. Mr. Bhaskar Tanna, learned Senior Advocate appearing for the appellants would submit that if the final decree of the trial court is seen, the trial court partly allowed the suit and directed that the services of the appellants shall be not terminated without following the procedure established by law.

4.1 Mr. Tanna submitted that the municipality since 1984 and even after the decree passed in the year 1997 did not think it fit to terminate the services of the appellants till the Second Appeal was filed in the year 2002 though the liberty was given. Th