TMI Blog2008 (4) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... was dismissed by the Appellate Authority by an order dated 16.6.1987. 5. Respondent filed a civil suit in the Court Additional Munsif, Jaipur which was marked as Civil Suit No. 632/88 (290/86). In his written statement, the appellant, inter alia, contended that the Civil Court had no jurisdiction to entertain the suit. Some of the issues framed by the Civil Court were: (1) Whether the order of termination No. 1516 dated 31.5.1985 and the order of the Appellate Authority dated 16.6.1987 are illegal and bad in law? X X X (3) Whether the Court has got no jurisdiction to entertain and try the suit? 6. While determining issue No. 1, the Trial Court, inter alia, held that the order of termination dated 31.5.1985 as also the order of the appellate authority were illegal, bad in law and against the principles of natural justice, opining: (i) The documents mentioned in the charge-sheet whereupon the appellant relied, had not been supplied to the respondent; (ii) He was not permitted to cross-examine the witnesses examined on behalf of the department; and (iii) The enquiry officer acted like a prosecutor. 7. On the said findings, the suit was decreed, opining: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at where the right is claimed by the plaintiff in terms of common law or under a statute other than the one which created a new right for the first time and when a forum has also been created for enforcing the said right, the Civil Court shall also have jurisdiction to entertain a suit where the plaintiff claim benefit of a fundamental right as adumbrated under Article 14 of the Constitution of India or mandatory provisions of statute or statutory rules governing the terms and conditions of service. 12. Under the industrial law, and in particular the 1947 Act, the authorities specified therein including the Appropriate Governments and the Industrial Courts have various functions to perform. Terms and conditions can be laid down thereunder. Violation of the terms and conditions of service at the hands of the employer is also justiciable. Safeguards have been provided under the Act to see that services of workmen are not unjustly terminated. The 1947 Act provides for a wider definition of 'termination of service'. Conditions precedent for termination of service have been provided for thereunder. A decision taken by the Disciplinary Authority under the 1951 Act ordinaril ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and 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 the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy. (3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act. (4) If the right which is sought to be enforced is a right created under the Act such as Chapter VA then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute, as the case may be. 14. The said principle, in our opinion, should be applied in a case of this nature. The Courts ordinarily do not adopt an interpretation which takes away the jurisdiction of the Court. 15. We may in this behalf profitably notice the following excerpts from the Principles of Statutory Interpretation (11th Edn) by Justice G.P. Singh: 'It is a principle by no means to be whittled down& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 2A 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.) However, in that case, this Court declined to set aside the decree which was the subject matter of the appeals. 17. We are not concerned with such a situation here as the same is not being claimed by the plaintiff on the basis of right arising either under the Industrial Disputes Act, 1947 or Industrial Employees (Standing Orders) Act, 1946. We may also notice that in Rajasthan State Road Transport Corporation and Ors. v. Zakir Hussain (2005) IIILLJ 786 SC , whereupon the learned Counsel also replied on, this Court notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, civil court will have jurisdiction. 21. Appellant is a 'State' within the meaning of Article 12 of the Constitution of India. It is created under a statute. As a State, it is bound to comply with the requirements of Article 14 of the Constitution of India as also other provisions of Part III of the Constitution. It is also bound to comply with the mandatory provisions of the statute or the regulations framed by it. 22. It is also bound to follow the principles of natural justice. In the event, it is found that the action on the part of a State is violative of the Constitutional Provisions or the mandatory requirements of a statute or statutory rules, the Civil Court would have the jurisdiction to direct reinstatement with full back wages. 23. In Praga Tools Corporation v. C.V. Imanual and Ors. (1969) IILLJ 479SC, it was held: Therefore, the condition precedent for the issue of mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. An order of mandamus is, in form, a command directed to a person, corporation or an inferior tribunal requiring him or them to do a particular thing therein s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
