TMI Blog1989 (8) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... issal is contrary to the provisions of the Standing Orders framed under Industrial Employment (Standing Orders) Act, 1946 and on this ground he sought the relief of declaration that the dismissal is null and void and inoperative as he was not guilty of any misconduct as no enquiry was conducted, the dismissal was bad in accordance with the Standing Orders. He also sought the relief of back wages and injunction not to give effect to the order of dismissal. This suit was filed by the appellant plaintiff before the Court of Munsif. The defendant respondent in their written statement raised the plea that the suit is not maintainable as the relief which is sought is available to the appellant plaintiff under Section 2A of the Industrial Disputes Act, 1947. It was also pleaded that the suit is not maintainable under Section 14(1)(b) of the Specific Relief Act and that the Civil Court has no jurisdiction to entertain the suit. The trial Court on the basis of these pleadings framed two preliminary issues which were : (i) Whether the suit is maintainable in the present form ? (ii) Whether this Court has jurisdiction to try the suit ? The trial court came to the conclusion that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. Explanation II-For the purposes of this Section it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office as attached to a particular place. It is clear that whenever the jurisdiction of the civil court is expressly or impliedly barred, the civil court will have no jurisdiction. It could not be disputed that a contract of employment for personal service could not be specifically enforced and it is also clear that except the industrial law, under the law of contract and the civil law, an employee whose services are terminated could not seek the relief of reinstatement or backwages. At best he could seek the relief of damages for breach of contract. The manner in which the relief has been framed by the appellant plaintiff in this case, although he seeks a declaration and injunction but in substance it is nothing but the relief of reinstatement and backwages. The relief which could only be available to a w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It was contended that after this decision of this Court, the contention that remedy under the Industrial Disputes Act is merely discretionary is not at all available to the appellant. learned Counsel also placed reliance on the Dhulabhai's case and Nanoo Asan Madhavan v. State of Kerala and Ors. (1970) I LLJ Ker 272. 5. It is not in dispute that the dispute which was raised by the appellant plaintiff fell within the ambit of the definition of 'industrial dispute' as defined in Section 2(k) of the Industrial Disputes Act. It is also not in dispute that the dispute can be taken up by conciliation officer under Section 12. Section 12 of the Industrial Disputes Act provides that when the conciliation officer fails he has to make a report as provided in Sub-clause (4) of Section 12. Section 12 reads : Duties of Conciliation Officers-(1) Where any industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility service and a notice under Section 22 has been given, shall, hold conciliation proceedings in the prescribed manner. (2) The conciliation officer shall, for the purpose of bringing about a settlement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use when the appropriate Government considers the question as to whether a reference should be made under Section 12(5), it has to act under Section 10(1) of the Act and Section 10(1) confers discretion on the appropriate Government either to refer the dispute, or not to refer it, for industrial adjudication according as it is of the opinion that it is expedient to do so or not. In other words, in dealing with an industrial dispute in respect of which a failure report has been submitted under Section 12(4) the appropriate Government ultimately exercises its power under Section 10(1), subject to this that Section 12(5) imposes an obligation on it to record reasons for not making the reference when the dispute has gone through conciliation and a failure report has been made under Section 12(4). This question has been considered by this Court in the case of the State of Bombay v. K.P. Krishnan and Ors. (1960)IILLJ592SC . The decision in that case clearly shows that when the appropriate Government considers the question as to whether any industrial dispute should be referred for adjudication or not, it may consider, prima facie, the merits of the dispute and take into account other rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant to the dispute to a Court for inquiry; or (c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or (d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication : Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under Clause (c); Provided further that where the dispute relates to a public utility service and a notice under Section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or veraciously given or that it would b inexpedient so to do, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced; Provided also that where the dispute in relatio ..... 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