TMI Blog1995 (5) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... them on charges of misconduct, their services were terminated. They filed civil suits for a declaration that the order terminating their services is illegal and invalid and for a further declaration that they must be deemed to have continued and are still continuing in the service of the Corporation with all consequential benefits. The Corporation resisted the suits on the ground inter alia that the Civil court had no jurisdiction to entertain the suits. The Trial court decreed the suits as prayed for. Appeals as also Second appeals preferred by the Corporation were dismissed by the learned District Judge and High Court. When these appeals came up for hearing before a Bench of two learned Judges of this Court, the appellant Corporation relied upon the principles enunciated in Paragraphs 23 and 24 of the judgment in Premier Automobiles Limited etc. v. Kamlekar Shantaram Wadke of Bombay Ors. etc. (1976 (1) S.C.C.496) and in particular upon the decision in Jitendra Nath Biswas v. M/s. Empire of India and Ceylone Tea Co. Anr. (1989 (3) S.C.C.582). The Bench was of the opinion, agreeing with the decision in Jitendra Nath Biswas, that the Civil Court had no jurisdiction to enterta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of industrial disputes and for certain other purposes. The statement of objects and reasons appended to the Bill (which became the Act) stated inter alia, "(T)he bill also seeks to re-orient the administration of the conciliation machinery provided in the Trade Disputes Act. Conciliation will be compulsory in all disputes in public utility services and optional in the case of other industrial establishments. With a view to expedite conciliation proceedings, time limits have been prescribed for conclusion thereof - fourteen days in the case of conciliation officer and two months in the case of Board of Conciliation, from the date of notice of strike. A settlement arrived at in the course of conciliation proceedings will be binding for such periods as may be agreed upon by the parties and where no period has been agreed upon, for a period of one year, and will continue to be binding until revoked by a three months' notice by either party to the dispute." Section 2 defines certain expressions occurring in the Act. The expression "industrial dispute" is defined in clause (k) in the following words: "(K) 'industrial dispute' means any dispute or difference between emplo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 directs the authorities to decide the matters expeditiously and within the period specified in the order of reference. Section 16 provides for submission of the award by the Tribunal/Court, while Section 17 provides for its publication by the Government in the prescribed manner. Sub-section (2) of Section 17 then says "subject to the provisions of Section 17-A, the award published under Sub-section (1) shall be final and shall not be called in question by any court in any manner whatsoever". Section 18 provides for a settlement between the parties to an industrial dispute while Section 19 provides for certain matters incidental thereto. Chapter- V prohibits strikes and lock-outs. Chapter - VA and Chapter V-B contain several provisions of a substantive nature regulating retrenchment and lay-off of workmen, closure of industrial establishments and other related matters. Chapter - VI deals with penalties. Section 29 provides that any person who commits a breach of any award which is binding upon him shall be punishable with imprisonment or with fine or with both as provided therein. Chapter-VII contains certain miscellaneous provisions. Section 33- C provides for recovery of money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision shall be final and binding on the parties." The schedule to the Act specifies the matters which have to be provided for in the Standing Orders. Rules have been made called 'Industrial Employment Standing Orders (Central) Rules, 1946. The nature of the Standing Orders and the meaning and scope of Section 13-A: With a view to clear the ground, we may deal with these two issues debated before us at some length. The first one relates to the nature and character of the certified Standing Orders. We may indicate the relevance of this discussion. Sri Jitender Sharma, learned counsel for respondents-workmen submits that the certified Standing Orders have statutory force and their violation enables the Civil Court to decree reinstatement in service and that bar of Section 14 of the Specific Relief Act does not operate in such a case. He relies upon the holding in Sukhdev Singh v. Bhagat Ram (1975 (3) S.C.R.618). The appellant's counsel, however, dispute this proposition. Bereft of authority, we find it difficult to agree with Sri Sharma. The certified Standing Orders are not in the nature of delegated/subordinate legislation. It is true that the Act makes it obligatory upon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mination was interferred with by the Labour Court, whose award was affirmed by the Letter Patent Bench of the High Court. The appellant's contention was that once it has acted in accordance with the Standing Orders, the Labour Court had no jurisdiction to interfere with it. In that connection, Gajendragadkar,J. speaking for the Bench, observed: "The certified Standing Orders represent the relevant terms and conditions of service in a statutory form and they are binding on the parties atleast as much, if not more, as private contracts embodying similar terms and conditions of service". In The Workmen of Dewan Tea Estate Ors. v. The Management (1964 (5) S.C.R.548) the contention of the management was that Standing Order 8(a)(i), having been certified before insertion of the definition of "lay-off" by Section 2(kkk) in the Industrial Disputes Act, should be construed in the light of the said definition. While rejecting the said argument, Gajendragadkar,J. observed thus with respect to the nature of the Standing Orders: "It will be recalled that the Standing Orders which have been certified under the Standing Orders Act became part of the statutory terms and conditions of service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties at least as much, if not more, as private contracts embodying similar terms and conditions of service" in the second decision. The third decision, reiterated the holding in the first decision. So far as the two last-mentioned decisions are concerned, it is obvious, they only purport to set out the purport of the earlier decisions. Vaidialingam, J. used the very expression "part of the statutory terms and conditions of service", while K. Ramaswamy, J. stated more emphatically that "certified standing orders have statutory force". It must, however, be said that in the decision rendered by Ramaswamy, J., the question as to the nature and character of the certified Standing Orders did not arise for consideration; the said observation was made in another context. The concensus of these decisions is: the certified Standing Orders constitute statutory terms and conditions of service. Though we have some reservations as to the basis of the above dicta as pointed out supra, we respectfully accept it both on the ground of stare decisis as well as judicial discipline. Even so, we are unable to say that they constitue "statutory provisions" within the meaning of the dicta in Sukhdev Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13-A is not very clear, it cannot certainly be understood as creating a forum for adjudication of industrial disputes involving the application and/or interpretation of the Standing Orders. That is the function of the Courts and Tribunals constituted under the Industrial Disputes Act. The limited purpose of Section 13-A is to provide a forum for determination of any question arising "as to the application or interpretation" of the certified Standing Orders as such, in case either the employer or the employee(s) entertain a doubt as to their meaning or their applicability. Probably it was thought that a decision of the appointed forum on the said question would itself facilitate the resolution of an industrial dispute, whether existing or apprehended. So far as the Labour Court, Industrial Tribunal or other adjudicatory bodies under the Industrial Disputes Act are concerned, it is agreed on hands - and we endorse it - that where a dispute is referred to any of them they are undoubtedly competent to go into and decide questions as to the application or interpretation of the certified Standing Orders insofar as they are necessary for a proper adjudication of the question or dispute re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Industrial Disputes Act, it is agreed by all sides that disputes relating to such right or obligation can only be adjudicated by the forums created by the Act. This is Principle No.3 in Premier Automobile. The core question: We may now indicate the area of dispute. It is this: where a dispute between the employer and the employee does not involve the recognition or enforcement of a right or obligation created by the Industrial Disputes Act and where such dispute also amounts to an industrial dispute within the meaning of Industrial Disputes Act, whether the Civil Court's jurisdiction to entertain a suit with respect to such dispute is barred? To put it nearer to the facts of these appeals, the question can be posed thus: Where the dispute between the employer and the workman involves the recognition, application or enforcement of certified Standing Orders, is the jurisdiction of the Civil Court to entertain a suit with respect to such dispute is barred? This question involves the perennial problem concerning the jurisdiction of the Civil Court vis-a-vis Special Tribunals, a subject upon which the decisions of this Court, let alone other courts, is legion. We do not, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of the correctness of the assessment apart from its constitutionality are for the decision of the authority and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevent enquiry. (7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply." Dhulabhai, it must be remembered, concerned a dispute arising under a sales tax enactment. Most of the decisions referred to therein concerned taxing enactments. Having regard to the facts of that case, therefore, it would fall under principle No.2 enunciated therein. Premier Automobiles was decided by a Bench comprising A. Alagiriswami, P.K. Goswami and N.L. Untwalia, JJ. The Court found that the dispute concerned therein involved adjudication of rights/obligations created by the Industrial Disputes Act which means that it fell under Principle No.2 in Dhulabhai. Even so, the Court considered several decisions, English and Indian, on the subject and enunciated the following principles in Paras 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t stand alone; it is qualified by Para 24. Now what does Para 24 say? It says (i) in view of the definition of "industrial dispute" in the Industrial Disputes Act, there will hardly be an industrial dispute arising exclusively out of a right or liability under the general or common law. Most of the industrial disputes will be disputes arising out of a right or liability under the Act. (ii) Dismissal of an unsponsored workman is an individual dispute and not an industrial dispute (unless of course, it is espoused by the Union of Workmen or a body of workmen) but Section 2-A has made it an industrial dispute. Because of this "civil courts will have hardly an occasion to deal with the type of cases falling under principle No.2". By and large, industrial disputes are bound to be covered by Principle No.3. (Principle No.3 says that where the dispute relates to the enforcement of a right or obligation created by the Act, the only remedy available is to get an adjudication under the Act.) Before we proceed to consider the effect and impact of Para 24 on Principle No.2 in Para 23, it would be appropriate to refer briefly to the decisions referred to in Para 26 of the said judgment. The C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to nullify it altogether. Indeed, Principle No.2 is a reiteration of the principle affirmed in several decisions on the subject including Dhulabhai. Principle No.2 is clear whereas Para 24 is more in the nature of a statement of fact. It says that most of the industrial disputes will be disputes involving the rights and obligations created by the Act. It, therefore, says that there will hardly be any industrial dispute which will fall under Principle No.2 and that almost all of them will fall under Principle No.3. This statement cannot be understood as saying that no industrial dispute can ever be entertained by or adjudicated upon by the Civil Courts. Such an understanding would not only make the statement of law in Principle No.2 wholly meaningless but would also run counter to the well-established principles on the subject. It must accordingly be held that the effect of Principle No.2 is in no manner whittled down by Para 24. At the same time, we must emphasise the policy of law underlying the Industrial Disputes Act and the host of enactments concerning the workmen made by Parliament and State legislatures. The whole idea has been to provide a speedy, inexpensive and effective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it falls under Principle No.3 of Premier Automobiles or under Principle No.2? We are of the opinion that it falls under Principle No.3. The words "under the Act" in Principle No.3 must, in our considered opinion, be understood as referring not only to Industrial Disputes Act but also to all sister enactments - [like Industrial Employment (Standing Orders) Act] which do not provide a special forum of their own for enforcement of the rights and liabilities created by them. Thus a dispute involving the enforcement of the rights and liabilities created by the certified Standing Orders has necessarily got to be adjudicated only in the forums created by the Industrial Disputes Act provided, of course, that such a dispute amounts to an industrial dispute within the meaning of Sections 2(k) and 2-A of Industrial Disputes Act or such enactment says that such dispute shall be either treated as an industrial dispute or shall be adjudicated by any of the forums created by the Industrial Disputes Act. The Civil Courts have no jurisdiction to entertain such suits. In other words, a dispute arising between the employer and the workman/workmen under, or for the enforcement of the Industrial Employ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al." We are in respectful agreement with the said opinion. Coming to the order dated October 18, 1989 in S.L.P.(C) No.9386 of 1988 made by a Bench of two learned Judges, the important fact to be noticed is that in that suit, no allegation of violation of the certified Standing Orders was made. The only basis of the suit was violation of principles of natural justice. It was,therefore, held that it was governed by Principle No.2 in Premier Automobiles. In this sense, this order cannot be said to lay down a proposition contrary to the one in Jitendra Nath Biswas. We may also refer to a decision of this Court rendered by Untwalia,J., on behalf of a Bench comprising himself and A.P.Sen,J., in S.K.Konde v. Pigment Lakes and Chemical Manufacturing Co. Private Ltd. (1979 (4) SCC 12). That was a case arising from a suit instituted by the workman for a declaration that termination of his service is illegal and for reinstatement. In the alternative, he claimed compensation for wrongful termination. The jurisdiction of the Civil Court was sustained by this Court on the ground that he has made out a case for awarding compensation though the Civil Court could not decree reinstatement. Though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e being made by the appropriate government. The power to make a reference conferred upon the government is to be exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex-facie. The power conferred is the power to refer and not the power to decide, though it may be that the government is entitled to examine whether the dispute is ex-facie frivolous, not meriting an adjudication. (5) Consistent with the policy of law aforesaid, we commend to the Parliament and the State Legislatures to make a provision enabling a workman to approach the Labour Court/Industrial Tribunal directly - i.e., without the requirement of a reference by the government - in case of industrial disputes covered by Section 2-A of the Industrial Disputes Act. This would go a long way in removing the misgivings with respect to the effectiveness of the remedies provided by the Industrial Disputes Act. (6) The certified Standing Orders framed under and in accordance with the Industrial Employment (Standing Order) Act, 1946 are statutorily imposed conditions of service and are binding both upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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