TMI Blog2005 (8) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... ny alleged misconduct. Therefore, it was not obligatory on the part of the Corporation to hold an enquiry before terminating the services. It is also settled that the employees of the Corporation are not civil servants and, therefore, they are not entitled to protection under Article 311 of the Constitution of India. Their terms of appointment is governed by the letter of appointment and, therefore, the management was well within its right to terminate the services of the respondent-probationer during the period of probation if his services were not found to be satisfactory during the said period. The Courts below and the High Court have committed serious error in decreeing the suit as prayed for and for directing reinstatement with full back wages. The respondent is a temporary employee of the Corporation and a probationer and not a Government servant and, therefore, is not entitled for any protection under Article 311 of the Constitution. He was a party to the contract. In view of the fact that the respondent was appointed on probation and the services were terminated during the period of probation simpliciter as the same were not found to be satisfactory, the appellant-Corporati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pur alleging that the order of termination dated 08.05.1984 and the order of the appellate Authority dated 22.10.1984 being illegal, bad in law and against the principles of natural justice and, therefore, is liable to be set aside and that the respondent- plaintiff is entitled to continue in service without any break. It was further alleged that the services of the respondent were terminated simpliciter but in fact, the same were terminated on the basis of the remarks made by the checking staff on 01.05.1984 when the respondent was on duty. The trial Court framed four issues. Issue No. 2 relates to the jurisdiction of the Civil Court to entertain and try the suit. The trial Court held that since the services of the respondent have been terminated on the basis of the remarks without holding any enquiry, the order dated 08.05.1984 terminating the services of the respondent and the order passed by the appellate Authority dated 20.10.1984 dismissing the appeal are illegal and against the principles of natural justice. Accordingly, the trial Court set aside the above two orders. The trial Court finally passed the following order:- In the result, it is ordered that the suit of the plain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntitled to back wages on the principle of 'No Work, No Pay'. 8. Mr. Anis Ahmed Khan, learned counsel for the respondent submitted that a notice dated 05.05.1984 was given to the respondent in which a remark for carrying 11 passengers without ticket was mentioned and that the appellant-Corporation neither conducted any departmental enquiry nor gave the respondent an opportunity of being heard. Thus the termination order was illegal, unlawful and contrary to the principles of natural justice. 9. He invited our attention to the relevant discussion by the trial Court on this point. Citing the judgment of this Court in Rajasthan State Road Transport Corporation And Anr. Etc. v. Krishna Kant Etc. Etc. reported in [1995] 3 SCR 1118, learned counsel submitted that in the present case the decree in favour of the respondent has been passed by the trial Court on 28.07.1989 and that the appellant-Corporation filed an appeal before the District Court on 27.09.1989 which was pending prior to the judgment in Krishna Kant (supra). Thus, the entire judicial pronouncement of this Court favours the respondent and disfavours the appellant herein. He invited our attention to the two passages fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs subject to several conditions mentioned in the order of appointment. It is also mentioned that the services of the respondent will be governed by the Standing Orders of the Rajasthan State Road Transport Corporation, Workshop Employees. Two things are clear from the appointment order, (a) the order of appointment is purely on adhoc basis and (b) the respondent was appointed as a daily wage employee and that the probation is for a period of two years. 12. Premier Automobiles Limited vs. Kamlakar Shantaram Wadke and Ors., 1975 (2) LLJ 445 (Three Judges Bench) is a leading authority on jurisdiction of civil courts in industrial disputes. This Court, after elaborate discussion, held as under: The principles applicable to the jurisdiction of the civil Courts in relation to an industrial dispute may be stated thus: (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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court it is appropriate that the matter be heard by a Bench of three-Judges. 14. Pursuant to the above order, all the appeals were placed before a Bench comprising of Three Judges. This Court summarized the principles flowing from the discussion made by them in Rajasthan State Road Transport Corporation And Anr. v. Krishna Kant and Others, reported in (1995) 5 SCC 75. (1) Where the dispute arises from general law of contract, i.e., where reliefs are claimed on the basis of the general law of contract, a suit filed in civil court cannot be said to be not maintainable, even though such a dispute may also constitute an industrial dispute'' within the meaning of Section 2(k) or Section 2-A of the Industrial Disputes Act, 1947. (2) Where, however, the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes Act, the only remedy is to approach the forums created by the said Act. (3) Similarly, where the dispute involves the recognition, observance or enforcement of right and obligations created by enactment like Industrial Employment (Standing Orders) Act, 1946 - which can be called sister enactments to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mechanism which is speedy, inexpensive, informal and unencumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to civil courts. Indeed, the powers of the courts and tribunals under the Industrial Disputes Act are far more expensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute. Applying the above principles, this Court held that the suits filed by the employees of the Corporation were not maintainable in law. However, considering the peculiar facts and circumstances of the case, this Court declined to set aside the decree concerned in the appeals. This Court, having regard to the facts and circumstances of those matters, modified the decrees in those matters by reducing the back wages to half. This Court also has further observed that these orders are made in view of the fact that the position of law was not clear until now and it cannot be said that the respondents had not acted bona fide in instituting the suits and disposed of the appeals accordingly in the peculiar facts and circumstances of the case. We have already reproduced the principles laid d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d questions of fact. In the present case, the nature of the employment of the workmen was in dispute. This was an issue which should have been resolved on the basis of evidence led. The Division Bench erred in rejecting the appellant's submission summarily as also in placing the onus on the appellant to produce the appointment letters of the respondent workmen. There was also a dispute as to the nature of the absence of the respondent workmen. Significantly, the High Court has not relied upon the correspondence said to have been exchanged between the parties with regard to the demands raised by the respondent Union nor has it come to any decision on the question whether the strike in question was illegal or legal. In fact the High Court has proceeded on the basis that it was the accepted case that there was no notice given by the workmen that they were on strike. It cannot, therefore, be said, without more, that the absence of the respondent workmen from work was because they were on strike. Doubtless the issue of alternative remedy should be raised and decided at the earliest opportunity so that a litigant is not prejudiced by the action of the Court since the objection is one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usion of the jurisdiction of the civil court. 20. The case of Rajasthan State Road Transport Corporation vs. Krishan Kant above was relied upon by this Court in the case of B.S. Bharti Vs. IBP Co. Ltd. reported in (2004) 7 SCC 550 and Chandrakant Tukaram Nikam and Ors. Vs. Municipal Corpn. of Ahmedabad and Anr. reported in (2002) 2 SCC 542 In B.S. Bharti vs. IBP Co. Ltd., (2004) 7 SCC 550, this Court held as under: The appellant was a probationer in the employment of the respondent Company. At the end of his extended probation period, finding his performance not to be satisfactory, the respondent terminated his service on 24-1-1974. The appellant sought to raise an industrial dispute challenging his termination but on 1-1-1975, the appropriate Government refused to make a reference. The appellant then filed a civil suit challenging his termination and claiming arrears of salary. The trial court decreed the suit. But, following Rajasthan SRTC case, (supra), the Delhi High Court set aside that decree. The appellant then filed the present appeal. Referring to para 37 of Rajasthan SRTC case, the appellant contended before the Supreme Court that the principle of relief enunciated therei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has no jurisdiction, the jurisdiction cannot be conferred by any order of Court. This Court in the case of A.R. Antulay vs. R.S. Nayak Another reported in AIR 1988 SC 1531 paras 40 to 42 wherein it is, inter alia, held and observed as under:- 40 ..This Court, by its directions could not confer jurisdiction on the High Court of Bombay to try any case when it did not possess such jurisdiction . 41. The power to create or enlarge jurisdiction is legislative in character ..Parliament alone can do it by law and no Court, whether superior or inferior or both combined can enlarge the jurisdiction of a court or divest a person of his rights of revision and appeal .. 42. But the superior Court can always correct its own error brought to its notice either by way of petition or ex debito justitiae. See Rubinstein's Jurisdiction and Illegality' (supra) 23. In the instant case, the respondent was appointed as a conductor purely on ad hoc basis for a period of two years. It is not in dispute that the appellant is governed by the Standing Orders of the Rajasthan State Road Transport Corporation, Workshop Employees and also governed by the terms of appointment. This apart, the respondent h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as observed in para 6 as under: The High Court held that the termination of respondent's services on the basis of adverse entry in the character roll was not in good faith and the punishment imposed on him was disproportionate. It is unfortunate that the High Court has not recorded any reasons for this conclusion. The respondent had earned an adverse entry and complaints were made against him with regard to the unauthorised audit of the Boys Fund in an educational institution, in respect of which a preliminary inquiry was held and thereupon, the competent authority was satisfied that the respondent was not suitable for the service. The adverse entry as well as the preliminary inquiry report with regard to the complaint of unauthorised audit constituted adequate material to enable the competent authority to form the requisite opinion regarding the respondents suitability for service. Under the service jurisprudence a temporary employee has no right to hold the post and his services are liable to be terminated in accordance with the relevant service rules and the terms of contract of service. If on the perusal of the character roll entries or on the basis of preliminary inquiry o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. And Others vs. Gujarat Steel Tubes Mazdoor Sabha and Others, 1980 (2) SCC 593 (Three Judges) 30. The termination order in the instant case would clearly show that the misconduct on the part of the workman-respondent is not the foundation of the order of discharge. For an order to be 'founded' on misconduct, it must, be intended to have been passed by way of punishment, that is, it must be intended to chastise or cause pain in body or mind or harm or loss in reputation or money to the concerned worker. Such an intention cannot be spelled out of the present order of discharge. It cannot be regarded as an order of dismissal. Such would be the case when the employer orders discharge in the interests of the Corporation. So, the real criterion which formed the touchstone of a test to determine whether an order of termination of services is an order of discharge simpliciter or amounts to dismissal is the real nature of the order, that is, the intention with which it was passed. The respondent is a temporary employee of the Corporation and a probationer and not a Government servant and, therefore, is not entitled for any protection under Article 311 of the Constitution. He was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court in the case of Champaklal Chimanlal Shah vs. The Union of India reported in AIR 1964 SC 1854 at page 1862 in para 13 has held and observed:- ..The mere fact that some kind of preliminary enquiry is held against a temporary servant and following that enquiry the services are dispensed with in accordance with the contract or the specific service rules (e.g. R.5 in this case) would not mean that the termination of service amounted to infliction of punishment of dismissal or removal within the meaning of Article 311(2) . (ii) This Court in the case of Shamsher Singh Anr. vs. State of Punjab reported in [1975] 1 SCR 814 (7 Judges Bench) has held and observed as under:- The fact of holding an enquiry is not always conclusive. What is decisive is whether the order is really by way of punishment .A probationer whose terms of service provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Article 311(2). (iii) This Court in the case of Oil and Natural Gas Commission and Others vs. Dr. Md. S. Iskender Ali reported in (1980) 3 SCC 428 in para 3 of the said matter shows that in the said matter departmental enquiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment was made, would itself amount to stigma. This again cannot be accepted. The said reference has also become necessary because the respondent was working under the said officers and it was their assessment that was referred to and that was the source for the opinion expressed by the competent authority to discharge the respondent. The learned District Judge and the High Court were, therefore in error in treating that the removal order caused stigma. (vii) This Court in the case of Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd. And Anr. reported in (1999) 2 SCC 21 in para 33 at page 35 has held and observed as under:- 33. It will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason whey they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the officer, as stated by Shah, J. (as he then was) in Ram Narayan Das case. It is done only w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the management has subsequently raised the jurisdiction of the Civil Court in deciding an industrial dispute. Learned District Munsiff has also framed an issue in regard to the jurisdiction of the Civil Court to hear the suit. The same issue was raised before the other forums. However, lower Courts and the High Court has miserably failed to advert to this issue and failed to render a satisfactory finding. As already noticed, the services of the respondent were terminated simpliciter and does not contain any stigma and, therefore, there was no requirement under the law to hold any enquiry before terminating the services. The Courts below have also committed serious error in granting back wages along with reinstatement. Even otherwise, the respondent has not led any evidence before the trial Court except his own ipsi dixit to show that his services were terminated on the ground of any alleged misconduct. Therefore, it was not obligatory on the part of the Corporation to hold an enquiry before terminating the services. It is also settled that the employees of the Corporation are not civil servants and, therefore, they are not entitled to protection under Article 311 of the Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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