Bses Yamuna Power Ltd. & Ors. vs Mahender Kumar
2016 Latest Caselaw 3897 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+                           RSA 178/2013
                                      Reserved on:      13.05.2016
                                      Date of decision: 24.05.2016

       BSES YAMUNA POWER LTD. & ORS. ..... Appellants
                    Through: Mr.Sandeep Prabhakar and
                             Mr.Vikas Mehta, Advocates.

                            versus

       MAHENDER KUMAR                           ..... Respondent
                  Through:            Mr.Vishwendra Verma,
                                      Advocate.


       CORAM:
       HON'BLE MR. JUSTICE ASHUTOSH KUMAR

ASHUTOSH KUMAR , J.

1. Mahender Kumar, a workman (respondent), filed a civil suit No.522/1994 seeking a declaration that he be marked present on duty from 13.04.1994 to 09.08.1994 and be paid his salary and other dues for the aforesaid period.

2. His contention before the Trial Court was that as a regular Mazdoor (Workman) he was serving in the office of the appellant/defendant at Chuna Mandi but on 28.03.1994, he was transferred to C&A Office, Paharganj, New Delhi with an oral assurance that the aforesaid transfer was only for 10 days whereafter he would be taken back at his old place of work. The

respondent/plaintiff (Mahender Kumar) joined the C&A Office, Paharganj, New Delhi and worked there till 12.04.1994.

3. It was averred by the respondent/plaintiff that since he was transferred back to his original office at Chuna Mandi, he was orally discharged from C&A Office and he reported at Chuna Mandi on 12.04.1994. For no apparent reason, Mahender Kumar (respondent/plaintiff) alleges that neither was he marked present for the period from 13.04.1994 till 09.08.1994 nor his salary and dues were paid for the aforesaid period.

4. The aforesaid suit was contested by the appellant/defendant on the ground that the respondent/plaintiff left the C&A Office without any intimation and despite two notices to him, did not report back on duty at C&A Office. The assertion of the respondent/plaintiff that he was transferred back to Chuna Mandi office was denied and it was alleged that the respondent/plaintiff voluntarily absented himself from his duties thereby forfeiting his claim for the salary and other allowances payable to him for the aforesaid period.

5. The Trial Court, on the basis of the oral and documentary evidence, decreed the suit and directed the respondent for marking the presence of the respondent/plaintiff on duty from 13.04.1994 to 09.08.1994 and for payment of his salary and dues payable to him for the aforesaid period vide judgment and order dated 20.09.2011.

6. The appeal preferred by the appellant against the aforesaid judgment of the Trial Court could not be sustained and the First

Appellate Court vide its judgment dated 10.05.2013 passed in RCA No.61/2011 affirmed and upheld the findings given by the Trial Court.

7. The present second appeal has been filed by the appellant/defendant primarily, amongst other factual aspects, on the issue whether the dispute would fall in the category of an industrial dispute defined under Section 2(k) of the Industrial Disputes Act, 1947, as admittedly, the respondent/plaintiff is a workman within the definition of Section 2(s) of the Industrial Disputes Act, 1947 and therefore, the jurisdiction of the Civil Court would be barred under the provisions of the Section 9 of the CPC, thus, rendering the impugned judgments as non-est as having been passed without jurisdiction.

8. Now, in order to appreciate the contention of the appellant, it is necessary to refer to the relevant provisions of the CPC and the Industrial Disputes Act, 1947.

9. Section 9 of the CPC provides that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

10. Section 9 of the CPC reads as hereunder:

"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.

Explanation 1.--As suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on

the decision of questions as to religious rites or ceremonies.

Explanation Il--For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place."

11. Thus the jurisdiction of the Court and the right of a party emerging from Section 9 of the Code, on a plain reading of the Section, is not an absolute right but contains inbuilt restrictions namely the conferment of jurisdiction by the execution of the law or by necessary and clear intendment arising from such law.

12. Under the Industrial Disputes Act, 1947, a workman has been defined under Section 2(s) which reads as hereunder:-

"(s) " workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person--

(i) who is subject to the Air Force Act, 1950 (45 of 1950 ), or the Army Act, 1950 (46 of 1950 ), or the Navy Act, 1957 (62 of 1957 ); or

(ii) who is employed in the police service or as an officer or other employee of a prison; or

(iii) who is employed mainly in a managerial or administrative capacity; or

(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."

13. An "industrial dispute" has been defined under Section 2(k) of the Industrial Disputes Act, 1947:-

(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;

14. An industrial establishment or undertaking has been defined under Section 2(ka) of the Industrial Disputes Act, 1947:-

(ka)" industrial establishment or undertaking" means an establishment or undertaking in which any industry is carried on: Provided that where several activities are carried on in an establishment or undertaking and only one or some of such activities is or are an industry or industries, then,--

(a) if any unit of such establishment or undertaking carrying on any activity, being an industry, is severable from the other unit or units of such establishment or undertaking, such unit shall be deemed to be a separate industrial establishment or undertaking;

(b) if the predominant activity or each of the predominant activities carried on in such establishment or undertaking or any unit thereof is an industry and the other activity or each of the other activities carried on in such establishment or undertaking or unit thereof is not severable

from and is, for the purpose of carrying on, or aiding the carrying on of, such predominant activity or activities, the entire establishment or undertaking or, as the case may be, unit thereof shall be deemed to be an industrial establishment or undertaking;

15. An industry has been defined under Section 2(j) of the Industrial Disputes Act, 1947 which reads as hereunder:-

(j) " industry" means any systematic activity carried on by co- operation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency, including a contractor) for the production, supply or distribution of goods or services with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not,--

(i) any capital has been invested for the purpose of carrying on such activity; or

(ii) such activity is carried on with a motive to make any gain or profit, and includes--

(a) any activity of the Dock Labour Board established under section 5A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of 1948 );

(b) any activity relating to the promotion of sales or business or both carried on by an establishment. but does not include- (1) any agricultural operation except where such agricultural operation is carried on in an integrated manner with any other activity (being any such activity as is referred to in the foregoing provisions of this clause) and such other activity is the predominant one.

Explanation.-- For the purposes of this sub- clause," agricultural operation" does not include any activity carried

on in a plantation as defined in clause (f) of section 2 of the Plantations Labour Act, 1951 (69 of 1951 ); or (2) hospitals or dispensaries; or (3) educational, scientific, research or training institutions; or (4) institutions owned or managed by organisations wholly or substantially engaged in any charitable, social or philanthropic service; or (5) khadi or village industries; or (6) any activity of the Government relatable to the sovereign functions of the Government including all the activities carried on by the departments of the Central Government dealing with defence research, atomic energy and space; or (7) any domestic service; or (8) any activity, being a profession practised by an individual or body or individuals, if the number of persons employed by the individual or body of individuals in relation to such profession is less than ten; or (9) any activity, being an activity carried on by a co- operative society or a club or any other like body of individuals, if the number of persons employed by the co- operative society, club or other like body of individuals in relation to such activity is less than ten;]"

16. Labour Courts are appointed by the appropriate Government under Section 7 of the Industrial Disputes Act for the adjudication of the industrial disputes relating to any matter specified in the Second Schedule to the Industrial Disputes Act as also for performing such other functions which may be assigned to such Courts under the Act.

17. Industrial Tribunals under Section 7A are constituted by the appropriate Government for the purposes of adjudication of the industrial disputes relating to any matter, whether specified in the Second Schedule or the Third Schedule and for performing such other functions as may be assigned to them under the Act.

18. The Second Schedule to the Industrial Disputes Act, 1947 consists of matters which are within the jurisdiction of the Labour Courts. The Second Schedule comprises the issues/disputes relating to the propriety or legality of an order passed by an employer under the standing orders; the application and interpretation of standing orders; discharge or dismissal of workmen including retrenchment of, or grant of relief to, workmen wrongfully dismissed; withdrawal of any customary concession or privilege; illegality or otherwise of a strike or lock-out; and all matters other than those specified in the Third Schedule.

19. The Third Schedule lists and enumerates the matters which fall within the jurisdiction of Industrial Tribunals. They include:- (i) wages, including the period and mode of payment; (ii) compensatory and other allowances; (iii) hours of work and rest intervals; (iv) leave with wages and holidays; (v) bonus, profit sharing, provident fund and gratuity; (vi) shift working otherwise than in accordance with standing orders; (vii) classification by grades; (viii) rules of discipline; (ix) rationalization; (x) retrenchment of workmen and closure of establishment; and (xi) any other matter that may be prescribed.

20. The Preamble to the Industrial Disputes Act, 1947 states that the Act has been brought into existence for the purposes of investigation and settlement of industrial disputes which would mean adjudication of such disputes also. The disputes which are defined to be industrial disputes could be adjudicated by various methods provided under the Act. The powers and authorities deciding industrial disputes under the Act are extensive and are definitely wider than the powers of a Civil Court which may not have the necessary wherewithal to adjudicate an industrial dispute.

21. In Premier Automobiles Ltd vs. Kamlekar Shantaram Wadke of Bombay and Ors, (1976) 1 SCC 496, the Supreme Court after analyzing various case laws and principles dealing with the jurisdiction of the Civil Court in relation to an industrial dispute, crystallized the scope and ambit of the jurisdiction of a Civil Court under Section 9 of the CPC as follows:-

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.

22. However, the Supreme Court, in Premier Automobiles Ltd (Supra) observed at para 24 of the judgment as follows:-

"24. We may, however, in relation to principle 2 stated above hasten to add that there will hardly be a dispute which will be an industrial dispute within the meaning of section 2(k) of the Act and yet will be one arising out of a right or liability under the general or common law only and not under the Act. Such a contingency, for example, may arise in regard to the dismissal of an unsponsored workman which in view of the provision of law contained in Section 2A of the Act will be an industrial dispute even though it may otherwise be an individual dispute. Civil Courts, therefore, will have hardly an occasion to deal with the type of cases falling under principle 2. Cases of industrial disputes by and large, almost invariably, are bound to be covered by principle 3 stated above.

23. In Rajasthan State Road Transport Corporation and Anr. v. Krishna Kant and Ors, (1995) 5 SCC 75, the Supreme Court summarized the legal position in this regard as follows:-

"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 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.

(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 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 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."

24. On noticing some conflicts in the judgments of the Supreme Court over the issue, a three Judge Bench of the Supreme Court in Rajasthan State Road Transport Corporation and Anr v. Bal Mukund Bairwa, (2009) 4 SCC 299 revisited the law laid down with regard to jurisdiction of the Civil Courts to entertain the suits regarding the service conditions of a workman. In the aforesaid case, it was held that:-

"If an employee intends to enforce his constitutional rights or a right under a statutory regulation, the civil court will have the necessary jurisdiction to try a suit. If,

however, he claims his right and corresponding obligations only in terms of the provisions of the Industrial Disputes Act or the sister laws so called, the civil court will have none. In this view of the matter, in our considered opinion, it would not be correct to contend that only because the employee concerned is also a workman within the meaning of the provisions of the 1947 Act or the conditions of his service are otherwise governed by the Standing Orders certified under the 1946 Act, ipso facto the civil court will have no jurisdiction. This aspect of the matter has recently been considered by this Court in Rajasthan SRTC v. Mohar Singh [(2008) 5 SCC 542]. The question as to whether the civil court's jurisdiction is barred or not must be determined having regard to the facts of each case.

If the infringement of the Standing Orders or other provisions of the Industrial Disputes Act are alleged, the civil court's jurisdiction may be held to be barred but if the suit is based on the violation of principles of common law or constitutional provisions or on other grounds, the civil court's jurisdiction may not be held to be barred. If no right is claimed under a special statute in terms whereof the jurisdiction of the civil court is barred, the civil court will have jurisdiction.

Where the relationship between the parties as employer and employee is contractual, the right to enforce the contract of service depending on personal volition of an employer is prohibited in terms of Section 14(1)(b) of the Specific Relief Act, 1963. It has, however, four exceptions, namely, (1) when an employee enjoys a status i.e. his conditions of service are governed by the rules framed under the proviso appended to Article 309 of the Constitution of India or a statute and would otherwise be governed by Article 311(2) of the Constitution of India; (2) where the conditions of service are governed by statute or statutory regulation and in the event mandatory provisions thereof have been breached; (3)

when the service of the employee is otherwise protected by a statute; and (4) where a right is claimed under the Industrial Disputes Act or sister laws, termination of service having been effected in breach of the provisions thereof.

The appellant Corporation is bound to comply with the mandatory provisions of the statute or the regulations framed under it. A subordinate legislation when validly framed becomes a part of the Act. It is also bound to follow the principles of natural justice. In the event it is found that the action on the part of the 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."

25. In R.S.R.T.C v. Deen Dayal Sharma, AIR 2010 SC 2662, the Supreme Court, in a case where a workman was dismissed without any departmental enquiry as contemplated in the standing orders, held that the nature of right sought to be enforced would be decisive in determining whether the jurisdiction of the Civil Court is excluded or not. Since in the aforesaid case (Supra), the workman had hardly served for three months but had asserted his rights of a departmental enquiry as contemplated under the standing orders, the Supreme Court held that the Civil Court had no jurisdiction to entertain and try the suit filed by the aforesaid workman as such right of departmental enquiry under the standing orders could have been enforced by him only by raising an industrial dispute and not by way of a civil suit.

26. There is no dispute over the issue of the respondent/plaintiff being a workman and the appellants being an industry/industrial establishment.

27. Since the Third Schedule to the Industrial Disputes Act, 1947 consists of matters which would fall within the jurisdiction of an Industrial Tribunal constituted under Section 7A of the Act, entry No.1 which is "wages including the period and mode of payment" (Emphasis provided), renders the case of the respondent/plaintiff of the nature of an "industrial dispute" which is to be decided by the Labour Court. Be it noted that the only dispute raised by the respondent/plaintiff is that he has wrongly been marked absent from 13.04.1994 till 09.08.1994 and thus was unauthorizedly denied his salary and other emoluments for the aforesaid period. Such a dispute would definitely come within the parameters of an "industrial dispute" and the jurisdiction of the Civil Court would therefore, be barred.

28. Learned counsel for the appellant has also drawn the attention of this Court to the fact that the Trial Court, vide order dated 22.05.1996 though had formulated only four issues namely:-

1. Whether the plaintiff was absent from his duty w.e.f.

13.04.1994? OPD

2. Whether the plaintiff is entitled to the salary and other dues w.e.f. 13.04.1994? OPP

3. Whether the plaintiff is entitled to the reliefs as claimed? OPP

4. Relief; but on 27.05.1995 another issue namely "Whether jurisdiction of the Civil Court is barred under the Industrial Disputes Act" was also framed. However, no finding was recorded

over the aforesaid issue. Learned counsel for the appellant further pointed out that though the First Appellate Court discerned the aforesaid lapse, but did not address the aforesaid issue.

29. Thus, from the nature of the dispute raised by the respondent/plaintiff, it is very clear that it is an industrial dispute and, therefore, the Civil Courts would not have any jurisdiction to try the suit for payment of wages for a particular period for which the respondent/plaintiff was marked absent. That being the nature of the dispute, the judgment of both the Courts below are without jurisdiction and are therefore set aside. However, considering that the respondent/plaintiff is a workman, he is given the liberty to raise the dispute aforesaid before the Labour Courts for its adjudication.

30. The second appeal is thus allowed and disposed of in terms of above.

CM Appln.13257/2013 & 15972/2013

1. In view of the petition having been dismissed, the applications have become infructuous.

2. The applications are disposed of accordingly.

ASHUTOSH KUMAR, J MAY 24, 2016 k