Chairman, M.S.E.B. And Ors. vs Maharashtra Rajya Vidhyut Mandal ...
2002 Latest Caselaw 132 Bom

JUDGMENT

D.Y. Chandrachud, J.

1. Leave to amend. Amendment to be carried out forthwith.

2. Rule, returnable forthwith. Respondents waive service. By consent taken up for hearing and final disposal.

3. By the impugned order dated 14th June 2001, passed by the learned 2nd Joint Civil Judge, Junior Division, Kolhapur, the learned Trial Judge has, while disposing of the preliminary issue rejected the challenge by the Applicants to the jurisdiction of the Trial Court. The first respondent is a registered Trade Union. The substance of the grievance of the respondents is that the Maharashtra State Electricity Board has divided its establishment for the purposes of administration into various Divisions, Zones and Circles. Accordingly, it is averred that rules for the transfer of employees division wise and circle wise have been framed. The case of the respondents then is that according to the established rules and conventions which are being followed scrupulously by the MSEB, Class IV employees are not liable to be transferred outside the Division, while Class III employees are liable to be transferred outside the Division, but within the circle. The only exception to the transfer of Class III employees outside the Circle is if they are Assistant Accountants, Sub-Engineers and Head Clerks. The next material averment which is in paragraph 3 of the Plaint is that the member-employees of the first respondent-Union working in various Divisions and Circles are governed by Service Rules which provide for conditions of transfer. The transfer policy, it is stated, has been finalised by the MSEB in consultation with the Union and it has been agreed that the transfer of Class IV employees would take place within the Division and Class III employees within the Circle, save and except for certain categories. Accordingly, it has been expressly averred that the contract between the Union and the MSEB, the employer, has become part and parcel of the MESB Employees' Service Regulations. The Plaint then speaks of a long standing convention of transferring employees subject to the restrictions which have been pleaded by it in paragraph 2 of the Plaint. The case of the respondents is that the Board has no right to unilaterally change the Service Regulations or to commit a breach thereof. The challenge in the suit is to the Circular dated 23rd May 2001 issued by the Applicant which according to the respondent-Union would operate unilaterally to alter the Service Regulations. The said Circular, purports to provide that 5% of the employees within Group-3 can be transferred from one Circle to another Circle and insofar as Group-4 employees are concerned, to be transferred outside the Division. The said Circular, according to the respondents, is in breach of the contract of service, rules and regulations and, is therefore, unlawful. On the basis of the aforesaid averments, a declaration has been sought in regard to the illegality of the Circular dated 23rd May 2001 together with a permanent injunction restraining the Applicants from executing and implementing the said circular.

4. An objection was taken to the jurisdiction of the Learned Civil Judge, Junior Division, by the Applicant on the ground that Section 60 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 expressly bars the suit. Section 60 of the Act provides as follows :

"60. Bar of suits. -- No civil court, shall entertain any suit which forms or which may form the subject-matter of a complaint or application to the Industrial Court or Labour Court under this Act; or which has formed the subject of an interim or final order of the Industrial Court or Labour Court under this Act."

According to the Applicants, Schedule IV of the Act refers to general unfair labour practices on the part of employers and Item 9 is entitled "Failure to implement award, settlement or agreement". Therefore, the submission was that a complaint could have been filed in the present case under the MRTU and PULP Act, 1971. The suit which has been filed before the Civil Court in the present case is one which "may form the subject matter of a compliant" within the meaning of Section 60 of the M.R.T.U. and P.U.L.P. Act, 1971. Since properly construed, the complaint raises a grievance in regard to a failure of the employer to implement the settlement or agreement within the meaning of Item 9 of Schedule IV. The Learned Trial Judge by the impugned order has rejected that contention and held that the Court had jurisdiction to entertain and try the suit. 5. I have heard the Learned Counsel for the parties. 6. Section 60 of the MRTU and PULP Act, 1971 himself imposes a bar on the exercise of jurisdiction by the Civil Court to entertain a suit which either forms or which may form the subject matter of a complaint or application to the Industrial Court or Labour Court under the Act. Therefore, it is not merely when a complaint has been filed before the Industrial Court or the Labour Court, as the case may be, that the jurisdiction of the Civil Court is ousted. When the nature of the dispute before the Civil Court is such that it may form the subject matter of the complaint under the MRTU and PULP Act, 1971, the Act provides that the Civil Court shall not exercise the jurisdiction to entertain a suit. The grievance of the respondent as the averments in the complaint would show, is that there is an agreement between the Applicant-employer and the Union that the employees belonging to Class III services shall be transferred only within a Circle (save and except for the excepted categories) and Class IV employees only within a Division. The case of the respondent is that the agreement between the parties is now the matter of established rule and has become a part and parcel of the Service Regulations. The respondents have also averred that there is a long standing convention of not transferring employees except as set out in the plaint.

7. At the present stage, it is not necessary to go into the correctness of the averments in the plaint since the only purpose for which those averments can be looked at is to determine the question of jurisdiction. It is well settled that when the question of jurisdiction of the Court is to be determined, that has to be done only on the basis of the averments contained in the plaint. Having regard to the plaint, the averments contained therein as well as the reliefs which have been sought, there can be no doubt about the fact that what the respondents seek to assert is that the Applicant-employer has acted in breach of a binding settlement or agreement between the parties.

8. Now in view of the judgment of the Supreme Court in S.G. Chemicals and Dye Trading Employee's Union, v. S.G. Chemicals and Dyes Trading Ltd., 1986 (1) CLR 360, it is a well settled principle of law that a breach of mandatory provisions of law such as the Industrial Disputes Act, 1947, would equally involve a breach of Item 9 of Schedule IV since the requirement of compliance with the applicable provisions of law must be read into Item 9. Apart from the aforesaid consideration, a reference must be made to Section 2(k) of the Industrial Disputes Act, 1947 which defines the expression "Industrial dispute" to mean 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, or any person. The dispute in the present case between the Applicants and the Union is about the terms of employment of the workmen and in an industrial dispute. Similarly, it would be necessary to advert to the provisions of Section 9A of the Industrial Disputes Act, 1947 under which it is provided that no employer who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule shall effect such change without giving to the workmen likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected or within twenty one days of giving such notice. Item 8 of the Fourth Schedule is entitled "withdrawal of any customary concession or privilege or change in usage". It has become necessary to advert to the provisions of Section 9A since the averment in the plaint is that the circular which has been issued by the Applicants on 23rd May 2001 constitutes a breach of a long standing convention in regard to the transfer policy.

9. In The Rajasthan State Road Transport Corporation v. Krishna Kant, (1995) II LLJ 728, a Bench of three Learned Judges of the Supreme Court has formulated the principles which must govern the question of jurisdiction of the Civil Court in relation to an issue relating to the conditions of service of employees or workmen. The propositions which have been formulated by the Supreme Court are thus :

"(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 2A 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 Section 2-A of Industrial Disputes Act or where such enactment says that such disputes shall be either treated as an industrial disputes 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 Orders) 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 Dispute Act or the Civil Court whether 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 workman, a mechanism which is speedy, inexpensive, informal and un-encumbered 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 industrial disputes."

The present case in my view is clearly governed by the second proposition set out in the Judgment of the Supreme Court. Reading the averments which have been made in the plaint as a whole, it is abundantly clear that the respondents seek to enforce rights to which they claim to be entitled under the applicable contracts of service, the service rules and regulations and under a convention which according to the respondents has fructified into a binding rule or conduct for the parties.

10. The Learned Trial Judge while dismissing the application which was made on behalf of the Applicants was of the view that the respondents are not challenging any particular transfer of a specific employee. Moreover, the Learned Trial Judge held that the respondents do not seek specific performance of a contract between them and the Applicants but are trying to prevent a breach of the contract. Finally, it has been held in paragraph 12 that the source of the creation of the right and obligation is the decisive test and the M.R.T.U. and P.U.L.P. Act, 1971 does not provide for any settlement between the employer and employees in respect of the transfer of employees.

11. With due respect to the Learned Trial Judge, I am of the view that the reasoning is clearly erroneous. The fact that the respondents have sought to sue the Applicants to prevent a breach of the service contract and of the applicable rules and regulations would not make any material difference because under Section 30 of the Act, the powers of the Industrial and Labour Court are sufficiently wide to deal with a case such as the present. Moreover, even though the settlement or agreement which is set up has not been entered into under the provisions of the M.R.T.U. and P.U.L.P. Act, 1971 that makes no difference. The settlement or agreement, as the case may be, is obviously not entered into under the provisions of the M.R.T.U. and P.U.L.P. Act, 1971. However, the Act provides a remedy for the Union of the workmen and, in certain cases for the employer, where the breach of a settlement or such other conduct which forms the basis of the complaint constitutes an unfair labour practice under the provisions of the Act. Under Section 60 the decisive test is whether the suit forms or may form the subject matter of a complaint under the MRTU and PULP Act, 1971. The answer to that question must plainly be in the affirmative in this case.

12. In the circumstances, I am of the view that the impugned orders of the Learned Civil Judge, Junior Division, Kolhapur, are unsustainable. The orders dated 14th June 2001 and 30th August 2001 passed by the Learned Trial Judge in Regular Civil Suit No. 633 of 2001 at Exh. 22/A are accordingly quashed and set aside. On the preliminary issue which has been framed by the Learned Trial Judge it will accordingly be held that the Trial Court has no jurisdiction in the present case. The respondents would be at liberty to espouse their remedies under the Industrial Disputes Act, 1947 or cognate Labour legislation. The Civil Revision Application is accordingly allowed.