Bombay High Court
Nanded Municipal Council vs Bhagwan Ganoji More And Ors on 29 November, 2023
Author: S. G. Mehare
Bench: S. G. Mehare
2023:BHC-AUG:24993
1 SA.485-95+1.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.485 OF 1995
WITH
CIVIL APPLICATION NO.12916 OF 2022
IN SECOND APPEAL NO.485 OF 1995
Nanded Municipal Council,
Nanded, through its
Chief Officer. ... Appellant.
Versus
1. Bhagwan S/o Ganoji More,
Age 28 years.
2. Khandu Dipaji Tate,
Age 25 years.
3. Mesaram Nemaji Sathe - Abated.
4. Madhukar Hari Nandnaware - Dismissed.
5. Maroti Ganpati Waghmare,
Age 22 years.
6. Gautam Datta Gawale,
Age 22 years.
7. Sudam Babarao Pawale,
Age 25 years.
8. Prabhu Kondiba Bansode,
Age 25 years.
9. Jyotiba Deorao Jetihor,
Age 25 years.
10. Prakash Hiraman Waghmare,
Age 22 years.
11. Suresh Kondiba Sonwane,
Age 20 years.
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12. Sanjay Irabaji Taru,
Age 21 years.
13. Kachru Mahajan Bulade,
Age 22 years.
14. Tulsiram Tukaram Aousaramale,
Age major.
15. Ananda Tukaram Pawar - Dismissed.
16. Suresh Bhujanga - Dismissed.
17. Kerba Bhujanga - Dismissed.
18. Kerba Sambhaji - Dismissed.
19. Goutam Kachru Pandit,
Age 23 years.
20. Shankar Rama Gudewar,
Age 24 years.
21. Prakash Digamber Waghmare - Dismissed.
22. Waghoji Chandoji Dhongade,
Age 21 years.
23. Bhagwan Shankar - Dismissed.
24. Pathan Kazam Ali - Dismissed.
25. Babu Hari Kamle,
Age 23 years.
26. Venkati Hari Kamble,
Age 25 years.
27. Nivariti Dhondiba Bukatare,
Age major.
28. Bansi Hari Gaikwad,
Age 28 years.
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29. Laxman Nawaji Megare,
Age major.
30. Bhujanga Navaji Metengade,
Age major.
31. Raju Kishan Bokefod,
Age major.
32. Kishan Kondiba Sonsale,
Age 23 years.
33. Karmveer Nanuram Dulagarh - Abated.
34. Pandu Yeshwant Sabale,
Age 24 years.
35. Kachru Vithal Kamble,
Age 26 years.
36. Namdeo Nunjaji Gajabhare,
Age 25 years.
37. Bhimrao Kamble,
Age 27 years.
38. Prabhu Kerba Jondhale,
Age 28 years.
39. Zailsingh Lahana,
Age 28 years.
40. Prakash Jalba Kamble,
Age 25 years.
41. Ramesh Santaram More,
Age 22 years.
42. Ananda Shekoba Zadate,
Age 23 years.
43. Sambha Nagorao Pawale,
age 24 years.
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44. Balaji Shankar Khirade,
Age 23 years.
45. Yeshwant Hari Athewale,
Age 24 years.
46. Gangadhar Datta Sontakke - Abated.
47. Sudhakar Dagadu Nilewar,
Age 24 years.
48. Syed Hamid Syed Maheboob,
Age 27 years.
49. Nanded Nagar Palika Kamgar Union,
Somesh Compound, Nanded through its
General Secretary, Nazir Ahmed,
Baba s/o Mohd. Ismail.
Respondent Nos.1 to 48 to be served
through respondent No.49. ... Respondents.
...
Advocate for Appellant : Mr. Mrigesh D. Narwadkar.
Advocate for Respondent Nos.2, 5, 22, 32, 40, 43, 44 : Mr. P. G.
Godhamgaonkar.
...
CORAM : S. G. MEHARE, J.
RESERVED ON : 14.09.2023
PRONOUNCED ON : 29.11.2023.
JUDGMENT :
-
1. The Nanded Municipal Council, Nanded impugned the
judgment and decree of learned Joint Civil Judge Junior
Division, Nanded passed in Regular Civil Suit No.774 of 1986,
dated 02.04.1987 and the judgment and decree of the learned
5 SA.485-95+1.odt
Additional District Judge, Nanded passed in Regular Civil
Appeal No.123 of 1987, dated 03.02.1995.
2. The appellant would be referred to as "defendant" and
respondents would be referred to as "plaintiffs", for the sake of
convenience.
3. The plaintiffs had filed the suit for perpetual injunction
restraining the Defendant from appointing Class-IV employees
without first appointing them in service as labourers. The
plaintiffs were Class-IV employees. The plaintiff Nos.1 to 23
have served with the Defendant in its Sanitation Department.
Plaintiff Nos.24 to 39 have served in the Water Supply
Department. Plaintiff Nos.40 to 47 have served in the
Drainage Department. They had served with the Defendant for
about nine months, a year or so. Plaintiff No.48 is a registered
trade union of employees of the Defendant and has
represented hundreds of grievances of the labourers and
employees of the Defendant before the Defendant, the Labour
Officer, the Assistant Commissioner of Labour, the Labour
Court, etc. The plaintiffs were employed on a daily rate basis.
However, the Defendant discharged plaintiff Nos.1 to 23 on
23.09.1986 and plaintiff Nos.24 to 27 on 30.06.1986 from the
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services. Those posts were permanent. However, the Defendant
is discharging them from service, employing new workers.
Such is an unfair labour practice, and the Defendant was not
entitled to discharge labourers in such an illegal way. They had
made the representation for their continuity in the services.
But, the Defendant did not pay heed. They had submitted
representation before the Assistant Commissioner of Labour,
Nanded and a settlement was arrived at between the defendant
and its daily rated workers on 14.01.1980 to the effect that the
daily rated workers with their permanent appointment with
the Defendant. Similar was the settlement in a subsequent
compromise dated 09.01.1984 between the workers and the
Defendant. However, they were not confirmed. They have been
deprived of benefits like regular pay scale, leave, medical
benefits, gratuity, provident fund, etc. The plaintiffs were
discharged without notice and order. On 24.09.1986, the
Defendant passed a resolution for the appointment of fifty
labourers. The Defendant had caused injustice upon the
plaintiffs. Hence, they prayed to issue the injunction
restraining it from appointing Class-IV labourers without first
appointing them in service.
7 SA.485-95+1.odt
4. The Defendant had contested the temporary injunction.
However, did not file a written statement. Hence, the learned
Trial Court decreed the suit under Order VIII Rule 10 of the
Civil Procedure Code. The Defendant had impugned the said
order before the learned Additional District Judge, Nanded,
with an application for condonation of delay. The learned
Additional District Judge, by the order impugned before this
Court, dismissed the appeal, holding that there was no ground
either to remand the suit or to allow the appeal on merits
mainly, because the allegations of the plaintiffs were not at all
challenged by the Defendant nor there was any good ground
either to disbelieve or discard them.
5. The appeal was admitted on 29.04.2004. However, the
learned counsel for the appellant placed on record the
proposed substantial questions of law involved in the appeal on
07.09.2023. It has been made a part of the appeal memo.
6. Heard the respective learned counsels. The entire appeal
revolves around the jurisdiction of the Civil Court and the
tenability of the suit before the Civil Court. Hence, the
following substantial questions have been formulated.
8 SA.485-95+1.odt
(i) Does the Civil Court had jurisdiction to
entertain the suit as presented by the plaintiffs?
(ii) Can the Civil Court pass a decree under Order
VIII Rule 10 of the Civil Procedure Code in every case?
(iii) Were the plaintiffs entitled to the decree as
prayed in view of the facts of the application for
temporary injunction rejected way back in 1987?
7. Learned counsel for the appellant submits that the
temporary injunction application filed by the plaintiffs was
rejected long back. However, subsequent to that, the matter
remained pending. Hence, the written statement could not be
filed. He would submit that before the First Appellate Court, a
specific ground was raised that considering the nature of the
dispute and their relationship was employer and employee, the
Trial Court did not justify passing the judgment and decree.
However, the Court did not consider the question of
jurisdiction of the Civil Court and erroneously dismissed the
appeal. He also submitted that considering the plaint, the suit
was liable to be dismissed in Order VII Rule 11(d) of the Civil
Procedure Code as the Industrial Disputes Act barred the suit.
Though the decree was passed, it was in executable, as it was
null and void for the reason that it was not passed by the
competent Court of law. He also argued that the reliefs sought
9 SA.485-95+1.odt
were not legal. The employees cannot force the employer to re-
appoint them. They were the contractual labourers. The
Municipal Corporation never promises them to continue and
grants them permanency in the job. The due procedure was
required to be followed for the appointment under the service
law. The plaintiffs knew well that they were temporary
employees, and the employer gave them no assurance. To
bolster his argument, he relied on the various case laws. He
prayed to allow the appeal and reject the plaint under Order
VII Rule 11(d) of the Civil Procedure Code.
8. Per contra, the learned counsel Mr. Godhamgaonkar for
respondent Nos.2, 5, 22, 32, 40, 43 and 44, has vehemently
argued that it was purely a civil dispute. The employer did not
perform his promises. Hence, the civil Court has jurisdiction to
entertain the suit. Few of the employees were appointed, and
the present respondents were not appointed. This is
discrimination; therefore, under the principle of equity and
equality, the plaintiffs were entitled to be appointed first,
instead of appointing the new employees in the said process.
He would also submit that many of the employees withdrew
their claims. Relying on case laws, he would submit that the
10 SA.485-95+1.odt
impugned judgments and decrees are legally correct and
proper. He prayed to dismiss the second appeal.
9. The plaint averments reveal that the plaintiffs had
admitted the relationship as employer and employee. They
were Class IV employees in different sections of the Municipal
Corporation, i.e., the Defendant. They also pleaded that the
Defendant was indulging in an unfair labour practices. They
also pleaded that they had made the representation before the
Assistant Labour Commissioner, and some compromise was
arrived. The root question is whether the Civil Court or the
Industrial Court would entertain any dispute between the
employer and employee of the Municipal Corporation.
10. The learned counsel for the appellant relied on the case
of Rajasthan SRTC and others Vs. Khadarmal ; (2006) 1 SCC
59, Chandrakant Tukaram Nikam and others Vs. Municipal
Corporation of Ahmedabad and another ; (2002) 2 Supreme
Court Cases 542.
11. The case of Chandrakant (cited supra) was against the
Municipal Corporation. In the said case, the employees were
terminated. The question before the Court was whether such a
dispute was an industrial or civil dispute. The Hon'ble Supreme
11 SA.485-95+1.odt
Court, on similar facts,, has referred to the case of Rajasthan
SRTC (cited supra) in which, in paragraph 36, the principles as
regards the nature of dispute were summarized, which read
thus :
"36. Applying the above principles, we must hold
that the suits filed by the respondents in these
appeals were not maintainable in law. Even so, the
question is whether we should set aside the
decrees passed in their favour by the civil courts.
So far as Civil Appeal No.3100 of 1991 is
concerned, this Court had, while granting leave [in
S.L.P. (C) No. 194 of 1991] ordered on 29-1-1991
that 'insofar as respondent is concerned, he
(appellants' counsel) states that he will abide by
the decree. Application for stay is rejected'.
Therefore, there is no question of setting aside the
decree concerned in this appeal. However, so far as
the other appeals are concerned, the position is
slightly different. In Civil Appeal No. 4948 of 1991
and in Civil Appeals Nos. 5386, 5387 of 1995
arising out of S.L.P.s (C) Nos. 10902 of 1992,
13152 and 10263 of 1993, not only is there no
such condition but this Court had granted stay as
prayed for by the appellant Corporation. In two
other matters viz. in Civil Appeal No. 9314 of 1994
and Civil Appeal No. 5389 of 1995 arising out of
S.L.P. (C) No. 14169 of 1993 the only order is to
issue notice. Having regard to the facts and
circumstances of these matters, we modify the
decrees in these matters (except the decree
concerned in Civil Appeal No. 3100 of 1991) by
12 SA.485-95+1.odt
reducing the back wages to half. The decrees in all
other respects are left undisturbed. 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. Appeals disposed of
accordingly."
4. It is submitted that all the suits in these matters were
filed at a time when the position of law was not clear. It is
submitted that therefore even in these cases the Court
should not interfere with the decrees but may direct that
there shall be no payment of back wages.
5. On behalf of the appellants reliance is placed on the
second Rajasthan SRTC case and it is pointed out that the
Court had, after considering the earlier judgment,
concluded that the reinstatement cannot now be
maintained and directed that the respondents shall not be
allowed to continue in service any further. The Court has
however held that the back wages which may have been
paid are not to be recovered back but clarified that the
respondents will not be entitled to any further emoluments
or service benefits except the amount paid to them as back
wages.
6. In our view, as the civil Court had no jurisdiction, the
decrees which were passed have no force of law. They are
accordingly set aside. In our view, there can be no
direction to reinstate or to continue reinstatement.
However, on the facts of these cases we also direct that if
any back wages have been paid, they shall not be
recovered but clarify that the respondents will not be
entitled to any further emoluments or service benefits.
13 SA.485-95+1.odt
7. The appeals stand disposed of accordingly. There will be
no order as to costs."
The Hon'ble Supreme Court held that the Industrial
Forum adjudicates upon the dispute of illegal termination. The
jurisdiction of the civil Court in such case is impliedly barred.
12. The Hon'ble Supreme Court in the case of The
Corporation Of The City Vs. Its Employees; A.I.R. 1960 675
held that the Water Works Department, Water Supply
Department, Sanitation Department, Health Department
(Sanitation) and Drainage Department are the 'industries' as
defined under Section 2-A of the Industrial Disputes Act. No
doubt, the labours are under the Industrial Disputes Act.
13. Per contra, the learned counsel for the respondents
would rely on the case of The Premier Aotumobiles Ltd. Vs.
Kamlakar Shantaram Wadke and other ; A.I.R. 1975 Supreme
Court 2238. He also referred to the judgment of Dhulabhai Vs.
State of M.P. ; A.I.R. 1969 Supreme Court 78 . He has
vehemently argued that the employees were not permanent. It
is a case of promissory estoppel. The defendants had promised
the plaintiffs to appoint them against permanent posts. They
had an experience, but suddenly, they were victimized, and
14 SA.485-95+1.odt
without any cause or justification, their services were
terminated. To have employment for livelihood is a civil right.
Therefore, the Civil Court has jurisdiction to entertain the suit
filed by the plaintiffs.
14. In the case of Premier Automobiles (cited supra), the
facts were that the employees from the motor production
department had filed a suit before the City Civil Court in
Bombay. The dispute was pertaining to the settlement arrived
between the company and the Association Union. The first
relief claimed in the said suit was that the settlement dated
09.01.1971 was not binding on the plaintiffs and other
concerned daily rated and monthly rated workmen of the local
production Department, who were not members of the
association union. The second relief was sought for the decree
of permanent injunction restraining the appellant/company
from enforcing or implementing the terms of the impugned
settlement dated 09.01.1971. The defendant company had
challenged the jurisdiction of the Civil Court to entertain the
suit in relation to the dispute which was an industrial dispute
and further accepted that in view of the matter, no decree for
permanent injunction would be made. On these premise, the
Civil Court held that the Court had jurisdiction to try the suit
15 SA.485-95+1.odt
and as it was the suit was of a civil nature for enforcement of
rights of common and general law and consequently there was
no question of the reliefs being claimed under the Industrial
Disputes Act and granted the conditional decree of injunction
restraining the appellant/company from enforcing or
implementing the terms of agreement of 09.01.1971 against
workmen of its Motor Production Department who were not
members of the Association Union. On the facts of the case, the
Hon'ble Supreme Court held that the Civil Court has
jurisdiction to try the suit. In fact, this case does not support
the plaintiffs. As far as the ratio laid down in the case of
Dhulabhai, it was discussed in the case of Chandrkant (cited
supra) and finally held that the dispute of employer and
employee about the termination of service will be an industrial
dispute within the meaning of Section 2(k) and Section 17 of
the Industrial Disputes Act.
15. Considering the ratio laid down by the Hon'ble Supreme
Court and admitted relationship of employer and employee
and the departments in which the plaintiffs were allegedly
working have been held an industry, the Court is of the view
that the jurisdiction of the Civil Court was impliedly barred
and the suit was not tenable before the Civil Court.
16 SA.485-95+1.odt
16. The next question that has been raised by the learned
counsel for the appellant is that in every case, the Court shall
not proceed to pass a judgment and decree under Order VIII
Rule 10 of the C.P.C. He also submits that it is the duty of the
Court to examine the plaint before proceeding under Order
VIII Rule 10 of the C.P.C.
17. To bolster his argument, he relied on the case of C. N.
Ramappa Gowda Vs. C. C. Chandragowda (Dead) by L.Rs. and
another; 2012 A.I.R. Supreme Court 2528. In this case, one of
the questions before the Supreme Court was whether the Trial
Court before whom the defendants failed to file a written
statement in spite of repeated opportunities could straightway
pass a decree in favour of the plaintiff without entering into
the merits of the plaintiff's case and without directing the
plaintiff to lead evidence in support of his case and
appreciating any evidence or in spite of the absence of written
statement, the trial court ought to try the suit critically
appreciating the merits of the plaintiff's case directing the
plaintiff to adduce evidence in support of its own case
examining the weight of the evidence led by the plaintiff?
17 SA.485-95+1.odt
18. The above case was a suit for partition. The Hon'ble
Apex Court, in the facts of the case, observed in the middle of
paragraph No.13 that "even if the case of the
plaintiff/appellant was correct, it was of vital importance for
the trial Court to scrutinize the evidence that the property
sought to be partitioned was joint in nature. But the Trial Court
seems to have relied upon the case of the plaintiff merely
placing reliance on the affidavit filed by the plaintiff, which
was fit to be tested on at least a shred of some documentary
evidence even if it were by way of an ex parte assertion.
Reliance placed on the affidavit in a blindfold manner by the
trial court merely on the ground that the Defendant had failed
to file a written statement would amount to punitive treatment
on the suit, and the resultant decree would amount to a decree
which would be nothing short of a decree which is penal in
nature".
19. Similarly, he relied on the case of Shantilal Gulabchand
Mutha Vs. Tata Engineering and Locomotive Co. Ltd. and
another; 2013 (2) Mh.L.J. 579. In this case, also the Hon'ble
Supreme Court held that it appears to be a settled legal
proposition that the relief under Order VIII Rule 10 of the
C.P.C. is discretionary, and the Court has to be more cautious
18 SA.485-95+1.odt
while exercising such power where Defendant fails to file the
written statement. Even in such circumstances, the Court must
be satisfied that there is no fact which needs to be proved in
spite of deemed admission by the Defendant, and the Court
must give reasons or passing such judgment; however, short it
be, but by reading the judgment, a party must understood
what were the facts and circumstances on the basis of which
the Court must proceed, and under what reasoning the suit has
been decreed. It has also been observed that the trial court
failed to meet the parameters laid down by this Court to
proceed under Order VIII Rule 10 of C.P.C. In the said case, the
case of Balraj Taneja and another Vs. Sunil Madan and
another; 1999 (4) R.C.R. (Civil) 438 was referred to. In the
said case, it was held that even in such fact-situation, the Court
should not act blindly on the averments made in the plaint
merely because the written statement has not been filed by the
Defendant traversing the facts set out by the plaintiff therein.
Where the written statement has not been filed by Defendant,
the Court should be little cautious in proceeding under Order
VIII Rule 10 of C.P.C. Before passing the judgment against the
Defendant, it must ensure that even if the facts set out in the
plaint are treated to have been admitted, a judgment could
possibly be passed in favour of the plaintiff without requiring
19 SA.485-95+1.odt
him to prove any fact mentioned in the plaint. It is a matter of
the court's satisfaction and, therefore, only on being satisfied,
and there is no fact which need be proved on account of
deemed admission, the Court can conveniently pass a
judgment against the Defendant who failed to file a written
statement. However, if the plaint itself indicates that there are
disputed questions of facts involved in the case regarding
which two different versions are set out in the plaint itself, it
would not be safe for the Court to pass a judgment without
requiring the plaintiff to prove the facts so as to settle the
factual controversy.
20. The facts of this case were admitted that the appellant
opposed the temporary injunction application, and it was
rejected on merits. The plaint averments were clearly
indicating that there were disputed facts. The plaintiffs had a
case that the Defendant did not follow the promise to continue
them in service and they were illegally terminated. Apart from
this, a specific pleading was made in the plaint that it was an
unfair labour practice. Was it really an unfair labour practice?
The question of fact needed to be proved. However, the learned
trial court, without examining any of the plaintiffs or
discussing the documents placed on record, has directly
20 SA.485-95+1.odt
pronounced the judgment under Order VIII Rule 5 of the C.P.C.
The facts of the plaintiffs' case clearly indicate the disputed
facts. In such circumstances, the learned trial court ought to
have asked the plaintiffs to prove the facts. Unfortunately, the
principles regarding proceeding ex parte and passing judgment
under Order VIII Rule 5, read with Order VIII Rule 10 of C.P.C.
appear to have not been correctly followed. Similarly, the First
Appellate Court also did not pay attention towards the legal
provisions and mechanically affirmed the judgment of the trial
court.
21. Order VII Rule 11 of the C.P.C. empowers the Court to
reject the suit if the suit is barred by other law. It is the duty of
the Court under Order VII to examine a plaint before issuing
summonses and to ascertain whether the plaintiff has pleaded
a cause of action and whether the plaint should be rejected,
returned or amended. Order VII does not restrict the Court or
put limitation on the exercise of powers to examine the plaint.
While deciding whether to accept or to reject the plaint only
the averments in the plaint are to be seen and not the written
statement. The jurisdiction of the Court is to be determined
from the plaint and not from the written statement.
21 SA.485-95+1.odt
22. In a plaintiff's plaint there were specific pleadings that
the defendants had played unfair labour practice; the Court
ought to have considered whether a civil court would decide
such a dispute. The averments of the plaint also indicate that it
was a dispute between employer and employee. The plaintiffs
were expecting the service benefits and permanency in the job.
They had a specific case of illegal termination of services. The
sufficient material was before the trial court to examine its
jurisdiction. However, the learned Court of first instance did
not pay attention to its duties to examine the plaint as
provided under Order VII Rule 11 of the C.P.C. and
mechanically proceeded ahead in the matter under Order VIII
Rule 5 of C.P.C.
23. This Court has held above that in the fact situation, the
civil Court had no jurisdiction to entertain the suit as the
provisions of Industrial Disputes Act impliedly barred its
jurisdiction. Therefore, the plaint is liable to be dismissed.
24. In view of the above discussion, the first substantial
question of law is answered that the civil suit was not tenable
as the Civil Court has no jurisdiction to entertain the suit in the
nature of the claim and the plaint presented.
22 SA.485-95+1.odt
25. As to question No.2 :- In the fact-situation and pleadings
in the plaint, the trial court was to ask the plaintiffs to prove
the case and not to proceed without proof of the fact under
Order VIII Rule 5 of C.P.C.
26. As to question No.3 :- The plaint averments were clear
that it was a dispute between employer and employee and a
case of unfair labour practice. Therefore, plaint was liable to be
rejected under Order VII Rule 11(d) of C.P.C. as the provisions
of the Industrial Disputes Act barred the suit.
27. On examining the legal issues and factual aspects
involved in the case, the Court concludes that the impugned
judgments and decrees are without jurisdiction; hence, null
and void and not executable, therefore, liable to be quashed
and set aside.
ORDER
(i) The second appeal is allowed.
(ii) The judgment and decree of the learned Joint Civil
Judge Junior Division, Nanded passed in Regular
Civil Suit No.774 of 1986, dated 02.04.1987 and
judgment and decree of the learned Additional
District Judge, Nanded in Regular Civil Appeal
No.123 of 1987, dated 03.02.1995, are set aside.
23 SA.485-95+1.odt
(iii) The plaint stands rejected under Order VII Rule 11
(d) of C.P.C.
(iv) No order as to costs.
(v) R and P be returned to the trial court.
(vi) Civil Application stands disposed of accordingly.
(S. G. MEHARE, J.)
...
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