GENERAL MANAGER, PUNJAB ROADWAYS, BATALA Vs. SARUP SINGH

JUDGEMENT

(1.) BOTH the writ petitions are at the instance of the State challenging the order of the Labour Court directing substitution of the order of dismissal by stoppage of three increments with cumulative effect. The challenge by the State is on a plea that the order of dismissal had been brought under challenge before a civil court in both the cases. There were two issues framed of whether the order of dismissal was valid and the second issue was whether the civil court had the jurisdiction. In both the cases, the court held that the civil court had the jurisdiction and found that the order of dismissal had been correctly passed. The workmen in both these cases had preferred appeals to the District Court where the decisions of the trial court were upheld and the termination orders were found to be valid.

(2.) THE workmen sought for a reference to contend that the punishment awarded was pursuant to the change of terms of service and not valid. The reference was answered by the Labour court that the punishment was excessive and the order of termination was to be substituted with the order of stoppage of three increments with cumulative effect in CWP No. 9525 of 1992 and direction for reinstatement with continuity of service but without back wages in CWP No. 9138 of 1992.

(3.) LEARNED counsel appearing for the workman places reliance on the judgment of the Supreme Court in Jitendera Nath Biswas Versus M/s. Empire of India and Ceylon Tea Co. and another : 1989 (3) SCC 582 to contend that the scheme of the Industrial Dispute Act excluded the jurisdiction of the civil court by implication in respect of the remedies available under the Act and decree passed by the trial court and the appellate court were without jurisdiction. The argument is fallacious and untenable. It was the workman who sought the jurisdiction of the civil court and the plea was that since the orders have been passed violating the principle of natural justice, the civil court had the jurisdiction and the labour court would not have the jurisdiction. Both the trial court and the appellate court upheld the contention and found that the issue relating to the violation of natural justice could be addressed before the civil court in its jurisdiction under Section 9 of the Civil Procedure Code. However, on an issue of fact of whether there had been any violation of principle of natural justice and whether the proceedings have been vitiated, both the trial court and the appellate court have held that the orders have been passed for justifiable reasons and the challenge to the same could not be countenanced. Having suffered adverse orders concurrently, the workman is estopped from contending that the civil court which dismissed the civil court did not have the jurisdiction. A court exercising the jurisdiction which it did not have would make the decree issued by it to be illegal. However, where the power of the civil court is invoked on principle of violation of natural justice, it should be remembered that the civil court shall always have the jurisdiction, if there is such violation. It is not an inherent lack of jurisdiction in civil court in respect of matter relating to validity of termination of order. It is ground of challenge and the efficacy of the relief that will be material for determining whether the civil court had the jurisdiction or not. For instance, while a direction for reinstatement is permissible under the scheme of the Industrial Dispute Act, a power to direct reinstatement by a mandatory injunction is impermissible under the civil court jurisdiction by virtue of bar under Section 14 of the Specific Relief Act, which makes contract of service to be unavailable for specific performance. Contrarily, if a workman does not seek for reinstatement but is only interested in seeking for declaration that a particular order of termination is illegal and violative of principle of natural justice, the civil court has jurisdiction to entertain such a suit and render adjudication. In the case of State Bank of India Versus S.N. Goyal : 208 (8) SCC 92, the State through Haryana Roadways is the employer. The subject of the appeal under Section 14 of the Specific Relief Act that bars enforcement of specific performance was considered in this case. The Supreme Court held that there is clear distinction between public employment governed by statutory rules and private contractual employment. Where the service condition in the public employment are governed by the statutory rules, an action for such declaration as to deemed continuation in service is maintainable and is not barred by Section 14 of the Act. This principle was also illustrated in the later decision in Ashok Kumar Srivastava Versus National Insurance Company Ltd. : 1998 AIR (SC) 2046. The Court held that declaratory action under Section 34 of the Specific Relief Act is wide enough to open the corridors of civil courts to file variety of declarations. A prayer that person continued in service, the court observed it could be done. It is a different matter that the courts did not agree with the petitioner in the case but for maintainability of the suit is itself for pronouncement of suit in this case.