U.P.S.E.B., & Another vs Munna
2012 Latest Caselaw 1613 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Judgment reserved on 30.04.2012
 
                         Judgment delivered on 11.05.2012
 

 
Case :- SECOND APPEAL No. - 459 of 1997
 

 
Petitioner :- U.P.S.E.B & Another
 
Respondent :- Munna
 
Petitioner Counsel :- Arvind Kumar
 
Respondent Counsel :- R.S. Saxena, Ashutosh Tripathi, D.P. Mishra, K.P. Agarwal, O.P. Singh, P.S. Dubey, P.S. Pandey, Ranjeet Saxena, S. Hasnain, Suman Sirohi, T.S. Pandey
 

 
Hon'ble Manoj Misra,J.

1.     This is defendant's appeal against the judgment and decree dated 25.01.1997 passed by the Additional District Judge (Special Judge), Allahabad in Civil Appeal No. 305 of 1996 arising out Original Suit No. 506 of 1994.

2.    Original Suit No. 506 of 1994 was instituted by the plaintiff-respondent for declaration that the correct date of birth of the plaintiff is 27.04.1941 and not 03.11.1936, as also for an injunction restraining the defendant from retiring the plaintiff on the basis of the incorrect date of birth as recorded in the service book, and at the age of 58 years. Plaintiff's case was that he was appointed as a driver/mechanic in the erstwhile U.P. Electricity Supply Company, Allahabad, which was taken over by the U.P. State Electricity Board in the year 1964. At the time of taking over, an option was given to the employees to opt the terms and conditions of the U.P. State Electricity Board, but those who did not opt the service conditions of the Board, remained as Ex-Licensee Staff whose service conditions were governed by the Standing Orders of the erstwhile Company. It was claimed that as per the rules contained in the Standing Orders, the age of retirement was 60 years whereas the defendants were seeking to retire the plaintiff at the age of 58 years even though the plaintiff did not opt the change over and remained Ex-licensee staff. The plaintiff further claimed that the date of birth recorded in the service book was incorrect, which ought to be 27.04.1941. On the aforesaid averments, the suit was instituted on 28.04.1994.

3.   The defendant, U.P. State Electricity Board, contested the suit thereby claiming that the date of birth was correctly recorded as 03.11.1936 and, as such, the plaintiff would retire on 30.11.1994. It was also claimed that the plaintiff was not Ex-licensee staff and, as such, not governed by the Standing Orders of the Company. In the additional pleas, it was claimed that the suit was barred by section 6 of the U.P. Public Services (Tribunal) Act, 1976

4. Trial court framed various issues and came to the conclusion that the plaintiff was not an Ex-licensee; that his services would be governed by the U.P. Service Regulations; that the Standing Orders would not be applicable; that the date of birth was correctly recorded; and that he was entitled to continue in service only up to the age of 58 years i.e. 03.11.1994. With regard to the bar of section 6 of the U.P. Public Services (Tribunal) Act, 1976 (hereinafter referred to as the "Tribunal Act, 1976"), the trial court held that the relief sought for in the suit i.e. declaration with regard to the correct date of birth, could only be granted by the Civil Court, therefore, the suit was not barred by section 6 thereof. However, on the finding returned on the other issues, the suit of the plaintiff was dismissed.

5.    Aggrieved by the dismissal of the suit, the plaintiff-respondent filed Civil Appeal No. 305 of 1996. The Court of Special Judge, Allahabad by its judgment and decree dated 25.01.1997, partly allowed the Appeal to the extent that the plaintiff would retire at the age of 60 years whereas the relief for correction of date of birth was denied. While allowing the appeal of the plaintiff-respondent, the lower appellate court came to the conclusion that from the service book of the plaintiff it was clear that the plaintiff was an Ex-licensee to whom the Standing Orders were applicable, which provided the age of retirement as 60 years. With regard to the bar of section 6 of the Tribunal Act, 1976, the appellate court held that the bar would not apply inasmuch as the provisions of the Tribunal Act, 1976 were not applicable to a workman by virtue of section 1(4)(e) of the Act.

6. Challenging the judgment and decree of the appellate court, the present second appeal has been filed by the U.P. State Electricity Board, through its Chairman. At the time of admission of the appeal the following substantial questions of law were framed:-

(a) Whether in view of section 6 of the U.P. Public Services (Tribunal) Act, 1976, the suit of the plaintiff-respondent is barred?

(b) Whether in view of the fact that the plaintiff-respondent being a workman, can file a suit for enforcement of rights for which separate forum is provided under the Industrial Disputes Act, 1947?

7.   I have heard Sri Arvind Kumar, learned counsel for the appellant and Sri D.P. Mishra, learned counsel for the respondent and have perused the record.

8.   The submission of the counsel for the appellant is that U.P. Public Services (Tribunal) Act, 1976 came as an Act to provide for the constitution of a Tribunal to adjudicate disputes in respect of matters relating to employment of all public servants of the State. Relying on section 2(b) of the Tribunal's Act, 1976, the counsel for the appellant submitted that a "public servant" means every person in the service or pay of:

(i) the State Government;

(ii) a local authority not being a Cantonment Board;

(iii) any other corporation owned or controlled by the State Government (including any company as defined in section 3 of the Companies Act, 1956 in which not less than 50% of paid up share capital is held by the State Government but does not include-- (1) a person in the pay or service of any other company; or (2) a member of the All India Services or other Central Services.

Further relying on section 2 (bb) of the Tribunal's Act, 1976 it was submitted that "service matter" means "a matter relating to the conditions of service of a public servant". Relying on the aforesaid clauses, the counsel for the appellant submitted that an employee of the U.P. State Electricity Board would be covered by the definition of public servant and since the continuation in service up to the age of 60 years was a matter relating to the conditions of service of a public servant, therefore, the bar under section 6 of the U.P. Public Services (Tribunal) Act, 1976 became applicable. Section 6 (1) of the U.P. Public Services (Tribunal) Act, 1976 reads as under:-

"No suit shall lie against the State Government or any local authority or any statutory corporation or Company for any relief in respect of any matter relating to employment at the instance of any person who is or has been a public servant, including a person specified in clauses (a) or (g) of sub-section 4 of Section 1."

Section 1 of the Tribunal's Act, 1976 is reproduced herein below:-

"1. Short title, extent, commencement and application.---(1) This Act may be called the Uttar Pradesh Public Services (Tribunal) Act, 1976.

(2) It extends to the whole of Uttar Pradesh.

(3) It shall be deemed to have come into force on November 24, 1975.

(4) This section and Sections 2 and 6 shall apply in relation to all public servants while the remaining provisions shall not apply to the following classes of public servants, namely:-

(a) a member of a judicial service;

(b) an officer or servant of the High Court, [or of a Court subordinate to the High Court];

(c) a member of the secretariat staff of any House of the State Legislature;

(d) a member of the staff of the State Public Service Commission;

(e) a workman as defined in the Industrial Disputes Act, 1947 (U.P. Act XXVIII of 1947), or the United Provinces Industrial Disputes Act, 1947 (Act XVI of 1947).

(f) a member of the staff of Lok Ayukta]

(g) the Chairman, Vice-Chairman, Members, Officers or other employees of the Tribunal]."

9.   Relying on sub-section 4 of section 1, the counsel for the appellant submitted that although the provisions of Tribunal's Act, 1976 did not apply to a workman as defined in the Industrial Disputes Act, 1947, but section 1 as also sections 2 and 6 applied even to such workman thereby indicating that the suit would be barred for any relief in respect of any matter relating to employment at the instance of any person who is or has been a public servant. In addition to above, the counsel for the appellant submitted that the remedy for the plaintiff-respondent was available before the labour court under the provisions of the Industrial Disputes Act, therefore, the suit was impliedly barred under section 9 of the Code of Civil Procedure. The counsel for the appellant placed reliance on the judgments of the Apex Court in the cases of The Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke of Bombay and others (1976) 1 SCC 496; Rajasthan State Road Transport Corporation and another v. Krishna Kant and others (1995) 5 SCC 75; Apollo Tyres Limited v. C.P. Sebastian (2009) 14 SCC 360; Rajasthan State Road Transport Coporation and others v. Deen Dayal Sharma (2010) 6 SCC 697.

10.   Relying on the aforesaid decisions of the Apex Court, the counsel for the appellant submitted that where any violation of Standing Orders is alleged it entitles an employee to appropriate relief before the labour court under the Industrial Disputes Act and the jurisdiction of the Civil Court would be barred. The counsel for the appellant contended that the plaintiff-respondent was admittedly a "workman" and he had claimed the benefit of the "Standing Orders", therefore, he had remedy available under the Industrial Disputes Act and, as such, the civil suit was impliedly barred under section 9 of the Code of Civil Procedure.

11. Per contra, the counsel for the plaintiff-respondent submitted that the bar under section 6 of the Tribunal's Act, 1976 was not applicable to the plaintiff-respondent for the reason that a "workman" had no right to raise a claim under the Tribunal's Act, 1976 in view of the fact that section 1(4)(e) of the Tribunal's Act, 1976 provides that except for sections 2 and 6 as also section 1 none of the remaining provisions would apply to a workman as defined in the Industrial Disputes Act, 1947. The counsel for the plaintiff-respondent submitted that if there was no remedy under the Tribunal's Act, 1976 for a workman then the only course open to him was either to file a suit or to raise an industrial dispute under the provisions of the Industrial Disputes Act. The counsel for the plaintiff-respondent further submitted that since the relief with respect to a declaration as regards the correct date of birth could be granted by a civil court alone and neither the Labour Court nor the Public Services Tribunal had jurisdiction to grant such relief, therefore, the suit was maintainable before the civil court. The counsel for the plaintiff-respondent further submitted that in the Premier Automobiles case (supra) in paragraph 23, the following principles were summarized, which are reproduced herein below:-

"23. To sum up, the principles applicable to the jurisdiction of the Civil Court 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 the suitor concerned to choose his remedy for the relief which is competent to be granted in 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."

12.    Placing reliance on the aforesaid principles, the counsel for the plaintiff-respondent submitted that the right to the plaintiff-respondent did not arise from the Industrial Disputes Act, therefore, the jurisdiction of the Civil Court was available in the alternative.

13.   Having considered the submissions of the counsel for the parties, the law on the point has been summarized in the case of Rajasthan State Road Transport Corporation and another v. Krishna Kant and others (supra). Paragraph 35 of the Apex Court's decision, in the case of Rajasthan State Road Transport Corporation and another v. Krishna Kant and others, is being reproduced below:-

"We may now summarise the principles flowing from the above discussion:

(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 rights and obligations created by enactments like Industrial Employment (Standing Orders) Act, 1946 - which can be called 'sister enactments' to Industrial Disputes Act - and which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the Industrial Disputes Act provided they constitute industrial disputes within the meaning of Section 2(k) and Section2-A of Industrial Disputes Act or where such enactment says that such dispute shall be either treated as an industrial dispute or says that it shall be adjudicated by any of the forums created by the Industrial Disputes Act. Otherwise, recourse to Civil Court is open.

(4) It is not correct to say that the remedies provided by the Industrial Disputes Act are not equally effective for the reason that access to the forum depends upon a reference 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 employers and employees, though they do not amount to "statutory provisions". Any violation of these Standing Orders entitles an employee to appropriate relief either before the forums created by the Industrial Disputes Act or the Civil Court where recourse to Civil Court is open according to the principles indicated herein.

(7) The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute resolution mechanism to the workmen, a 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 extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute."

14.   The decision of the Apex Court in Krishna Kant's case has been approved in subsequent decision of Rajasthan State Road Transport Corporation and others v. Bal Mukund Bairwa, (2009) 4 SCC 299 accept that the paragraph 37 of the judgment in Krishna Kant' s case which provided that the principles would not apply to those cases where decrees have been passed by the trial court was held to be not a good law. Principles laid down by the Apex Court in Krishna Kant's as well as Bal Mukund Bairwa's case have been reiterated in the case of Rajasthan State Road Transport Corporation and others v. Deen Dayal Sharma (supra).

15.   The principles as summarized in Krishna Kant's case go to show that where a dispute involves the recognition, observance or enforcement of rights and obligations created by enactments like Industrial Employment (Standing Order) Act, 1946- which can be called ('sister enactments') to Industrial Disputes Act-and which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the Industrial Disputes Act provided they constitute Industrial Disputes within the meaning of Section 2(k) or Section 2-A of Industrial Disputes Act or where such enactment says that such dispute shall be either treated as an industrial dispute or says that it shall be adjudicated by any of the forums created by the Industrial Disputes Act. Otherwise, recourse to civil court is open.

16. Coming to the facts of the instant case what is to be seen is whether the cause of action for institution of the suit constituted an industrial dispute within the meaning of section 2 (k) or section 2-A of the Industrial Disputes Act. Section 2 (k) of the Industrial Disputes Act defines industrial disputes as follows:-

"2(k) "industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person;"

17.   Section 2-A of the Industrial Disputes Act, 1947 reads as under:-

"2A. Dismissal, etc. of an individual workman to be deemed to be an industrial dispute.---Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workman is a party to the dispute."

18. A bare perusal of section 2 (k) of the Industrial Disputes Act would show that an industrial dispute would arise when there is a dispute or difference between employers and employers or between the employers and workmen or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. This necessarily means that for raising an industrial dispute under section 2 (k), the cause must be espoused by union or workmen, and it does not relate to espousal by an individual workman. So far as section 2-A is concerned, it relates to an individual workman. It provides that where any employer discharges, dismisses, retrenches or otherwise terminates the services of any workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workman is a party to the dispute. In the instant case, on the date of the institution of the suit i.e. 28.04.1994, the plaintiff was neither discharged nor dismissed or retrenched or terminated from service. Accordingly, the provisions of section 2-A of the Industrial Disputes Act were not attracted. Likewise, since the dispute was not between the employers and employers or between the employers and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person, section 2(k) was also not attracted.

19.   Accordingly, as per clause (iii) of the principles laid down in paragraph 35 of Krishna Kant's case (supra) even though the plaintiff was claiming enforcement of his rights under the Industrial Employment (Standing Orders) Act, 1946, the suit before the Civil Court was not barred inasmuch as there did not exist an industrial dispute within the meaning of section 2 (k) and section 2-A of the Industrial Disputes Act.

20.   In the case of Ishar Singh v. National Fertilizers and another, 1991 Supp. (2) SCC 649, the Apex Court dealt with a similar case as is here. The facts of that case are described in paragraph 2 of the report, which is reproduced herein below:-

"Appellant was a workman under the respondent and in his service record his date of birth was initially shown as July 1, 1930 and later changed to October 23, 1933. On the basis of the Original entry, he was about to be superannuated. It is not in dispute that under the respondent's Standing Orders, a workman is liable to be superannuated at the age of 58. On January 7, 1988, quite some time before the apprehended superannuation was to work out, the appellant approached the civil court by filing the suit on January 7, 1988 where he prayed for correction of his date of birth and asked for injunction against superannuation and claimed other ancillary reliefs. The employer joined issue, inter alia, on the question of the civil court's jurisdiction to maintain an action of this type. Ultimately in second appeal, as the stand of the employer has been upheld; this civil appeal has been carried by the employee questioning the view of the High Court."

21. The Apex Court after noticing the facts, held the suit to be maintainable. Paragraphs 3 to 5 of the Apex Court's decision are being reproduced herein below:-

"3. Law is settled that matters which come within the purview of Section 9 of the Code of Civil Procedure are maintainable in the civil court. Section 9 provides:-

"9. Courts to try all civil suits unless barred.-- The courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred."

The scope of Section 9 has been the subject matter of a long series of decisions and it is difficult to contend-- and Mr. Ashwini Kumar has, therefore, fairly accepted the position---- that a suit for correcting the date of birth in the record would be maintainable. In fact, asking for a correction of that type may be for various purposes and need not necessarily be confined to the question of claiming the relief available under the Industrial Disputes Act.

4. The main challenge to the civil court's jurisdiction is by placing reliance on Section 2-A of the Industrial Disputes Act. On a reference to that provision, we find that on the happening of certain eventualities, the reliefs available under that provision can be asked for. On January 7, 1988, none of the situations contemplated under Section 2-A had happened so as to give the appellant a cause of action to approach the Industrial Court. It cannot be doubted that the maintainability of the suit has to be decided with reference to the date of institution of the proceeding and since on January 7, 1988 when the civil suit was filed none of the eventualities covered by Section 2-A had happened, the appellant could not have approached the forum under the 1947 Act for relief.

5. The other question which Mr. Ashwini Kumar has raised is as to whether the civil court would have jurisdiction to give injunction against superannuation or the other ancillary reliefs contemplated to a workman against his employer. Law is equally settled that if for part of the reliefs the suit is maintainable in the forum where it has been laid, it is not open to the forum to shut out its doors to the suitor. In that view of the matter, so far as the relief of rectification of the record relating to date of birth is concerned, the civil court had jurisdiction and the High Court was not right in saying that the suit was not maintainable at all."

22. In the instant case also, on the date of the institution of the suit, there was neither any industrial dispute which could have been referred for adjudication under the provisions of the Industrial Disputes Act nor the plaintiff was entitled to seek any remedy under the provisions of the Tribunal's Act, 1976. Furthermore, since the relief with regard to the declaration/correction of the date of birth was maintainable before the Civil Court, the suit could not be said to be barred either under the provisions of the Public Services (Tribunal) Act, 1976 nor under the provisions of the Industrial Disputes Act, 1947. Thus, both the questions framed are answered against the appellant and in favour of the plaintiff-respondent. Accordingly, I hold that the suit, as framed and instituted, was not barred by any law and it was maintainable before the Civil Court.

23. It may be mentioned that at the fag end of the arguments, the counsel for the appellant submitted that as the plaintiff-respondent had exercised his option to avail the retirement benefits provided by the Board, therefore, he was not entitled to the benefit available to an Ex-Licensee Staff. This argument of the learned counsel for the appellant was examined by me with reference to the pleadings of the parties as also the issues framed in the suit. In paragraph no.4 of the plaint it was stated as under:-

"4. That the plaintiff did not opt the change over and as such he remained in the service of the defendants as an Ex-Licensee. In such a case the terms and conditions of the Ex-Licensee were applicable to the plaintiff. The service conditions of the plaintiff are governed by "Standing Orders" of the erstwhile Co." (Note the underlined portion was added by way of amendment incorporated on 20.1.1995)

In reply to paragraph no.4 of the plaint, the defendant in his written statement dated 21.8.1995, in paragraph no.4, stated as under:

"4. That para 4 of the plaint is not admitted."

In view of Order 8 Rule 5 CPC, such a statement by the defendant shall be taken to be admission of the fact pleaded by the plaintiff in paragraph no.4 of the plaint. However, in the additional pleas, the defendant, in paragraph no.22, stated as under:

"22. That the plaintiff is not licensee and, as such, not governed by the Standing Orders and the Co. The plaintiff is put to proof that he is the licensee."

Accordingly, issue no.1 was framed to the effect as to whether the plaintiff was an Ex-Licensee, which was decided by the appellate court in favour of the plaintiff. The appellate court further found that the Standing Orders that were applicable to Ex-Licensee provided the age of retirement as 60 years. The above findings have not been assailed before this court. In the entire written statement there is no averment with regard to exercise of any option by the plaintiff as well as its consequences on the age of retirement. What the Board claimed was that the plaintiff was not an Ex- Licensee therefore could not seek the benefit of Ex-Licensee. For the reasons aforesaid, the contention of the counsel for the appellant, raised at the fag end of the arguments, has no legs to stand. No other point was pressed.

24. For the reasons discussed above, the appeal lacks merit and is hereby dismissed with costs.

Order Date :- 11.05.2012

Sunil Kr Tiwari