Kumanbhai ... vs Manavadar Municipality
2022 Latest Caselaw 7129 Guj

    C/SA/164/2002                               CAV JUDGMENT DATED: 17/08/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/SECOND APPEAL NO. 164 of 2002

                                   With
               R/SPECIAL CIVIL APPLICATION NO. 22101 of 2019
                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2002
                    In R/SECOND APPEAL NO. 164 of 2002

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== KUMANBHAI CHATRABHJUBHAIHUJBHADARANIYA & 18 other(s) Versus MANAVADAR MUNICIPALITY & 14 other(s) ========================================================== Appearance:

MR BHASKAR TANNA, SENIOR ADVOCATE FOR TANNA ASSOCIATES(1410) for the Appellant(s) No. 1,10,11,12,13.1,13.2,14,15,16,17,18,19,2,3,4,5,6,7,8,9 MR SOAHAM JOSHI, ASST GOVERNMENT PLEADER for the

MR BHARAT JANI(352) for the Respondent(s) No. 10,11,12,13,14,15,4,6,8,9

MR MURALI N DEVNANI(1863) for the Respondent(s) No. 1

UNSERVED EXPIRED (R) for the Respondent(s) No. 5 ==========================================================

C/SA/164/2002 CAV JUDGMENT DATED: 17/08/2022

CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 17/08/2022

CAV JUDGMENT

1. Second Appeal No. 164 of 2002 has been filed by the

Appellants who were the Original Plaintiffs. Working as

Daily Wagers in the Municipal Borough and apprehending

their termination from service, they had preferred

Regular Civil Suit No. 655 of 1984 in the Court of the

learned Civil Judge (SD) at Junagadh praying for a

declaration that they were permanent employees of the

Manavadar Municipality and that they cannot be removed

from services without following due process of law

especially without following the provisions of the

Industrial Disputes Act,1947.

2. Several issues were framed by the learned trial

judge in the suit. By a judgement and decree dated

01/04/1997, the learned Civil Court partly allowed the

suit holding that the plaintiffs were not to be terminated

C/SA/164/2002 CAV JUDGMENT DATED: 17/08/2022

except in accordance with law. The trial court further

held that the suit was not maintainable under the

provisions of Section 9 of the Code of Civil Procedure and

accordingly the suit was dismissed.

2.1 The appellants therefore filed a First Appeal before

the Joint District Judge Junagadh being Regular Civil

Appeal No.23 of 2001. The appellate court after

reproducing the reliefs that the appellants had prayed

for, opined that it was the case of the appellants that they

were working as clerks, watchman etc. on a daily rate

basis and they were working for more than 240 days and

therefore their services could not have been terminated

without following the provisions of the Industrial Disputes

Act,1947.

2.2 The Panchayat and the Borough had objected to the

maintainability of the suit and also contended that the

appellants were engaged depending on exigencies of

work, without considering their educational qualification

C/SA/164/2002 CAV JUDGMENT DATED: 17/08/2022

and therefore their appointments were not in accordance

with recruitment rules. After extensive reproduction of

the provisions of the definitions of "industrial dispute",

"workman", the appellate court, relying on the decision of

the Supreme Court in the case of Chandrakant

Tukaram Nakum vs. Municipal Corporation of the

City of Ahmedabad ( AIR 2002 SC 997) held that

where dispute is an industrial dispute and it arises out of

the rights and liabilities arising out of the provisions

therein, a special remedy is provided by that statute and

the relief can only be granted by the Tribunal or Labour

Court established under the provisions of the said Act and

therefore a civil suit is barred. Accordingly, while

dismissing the appeal by an order dated 14th October

2002 the appellate court confirmed the decree passed by

the trial court.

2.3 The present second appeal therefore has been filed

by the appellants challenging the concurrent findings of

the Courts below.

C/SA/164/2002 CAV JUDGMENT DATED: 17/08/2022

3. On 23/06/2011, this Court admitted the Appeal and

framed the following substantial questions of law for

determination before this court.

" ADMIT.

4. The following substantial questions of law arise for determination before this Court:-

"1. Whether the Courts below have materially erred in law in mis-appreciating the evidence on record and in not granting the declaration and injunction as sought for in the suit, while holding that the concerned respondents original defendants could not terminate the services of the plaintiffs without following the due process of law?

2. Whether the Courts below have materially erred in law in holding that the Civil Court did not have the jurisdiction to try the suit and grant the reliefs, as prayed for, in the suit?"

4. Mr. Bhaskar Tanna, learned Senior Advocate

appearing for the appellants would submit that if the final

decree of the trial court is seen, the trial court partly

allowed the suit and directed that the services of the

C/SA/164/2002 CAV JUDGMENT DATED: 17/08/2022

appellants shall be not terminated without following the

procedure established by law.

4.1 Mr. Tanna submitted that the municipality since

1984 and even after the decree passed in the year 1997

did not think it fit to terminate the services of the

appellants till the Second Appeal was filed in the year

2002 though the liberty was given. The appellants

thereafter have continued in service by virtue of an

interim order passed by this court on 30 th October 2002

where the Court restrained the Municipality from

terminating the services of the appellants. Moreover,

pending the appeal, by interim orders in the Civil

Application, the State Government was directed to decide

the proposal of the Municipality to regularise the services

which though has been rejected. He submitted that

pending the appeal several appellants have died and their

heirs are on record. Considering the fact that the appeal

has been pending before this court since the year 2002

and by virtue of the interim orders the appellants

C/SA/164/2002 CAV JUDGMENT DATED: 17/08/2022

continued in service the court should take a practical

view and pass consequential orders accordingly.

4.2 In support of his submissions, Mr. Tanna, learned

Senior Advocate would rely on a decision of the co-

ordinate bench of this court in the case of Talala Gram

Panchayat vs. Bharat Kumar Agravat dated

27/09/2012 where the Award of the Labour Court, by

which the respondents were directed to give the benefits

of regularization was questioned. The co-ordinate bench

of this court considering several decisions on the question

of law, including the decision of the Supreme Court in the

case of Secretary, State of Karnataka and others

versus Uma Devi and others reported in 2006 (4) SCC

page 1 had observed that no illegality was committed by

the Labour Court and therefore directions were given

that the respondents therein who had worked for several

years be regularised in accordance with the decision of

the labour Court.

C/SA/164/2002 CAV JUDGMENT DATED: 17/08/2022

4.3 Mr. Tanna would submit that a Letters Patent

Appeal filed by the Gram Panchayat being Letters Patent

Appeal No.1103 of 2013 was dismissed by an order dated

6th March 2014. He would submit that even before the

Supreme Court the panchayat had failed. He would

therefore submit that there will be no illegality

committed, if the second appeal is appropriately disposed

off in light of the fact that some of the appellants had died

and the interim order not to terminate their services was

operating since the year 2002 and the appeal was

pending.

4.4 Mr. Tanna would also rely on a decision of a co-

ordinate bench of this court in the case of Rajesh Kumar

Chauhan vs. Chief Officer Manavadar Nagarpalika

dated 1.09.2016 in Special Civil Application No.9192

of 2007 where Nagarpalika had challenged the Award of

the labour Court granting regularization.

5. Mr. Murali Devnani, learned advocate appearing for

C/SA/164/2002 CAV JUDGMENT DATED: 17/08/2022

the Manavadar Nagarpalika would support the orders

passed by the trial court so confirmed in appeal. Mr.

Devnani would submit that the trial court committed no

error in dismissing the suit and the appellate court also

having confirmed the decree inasmuch as after holding

that since the provisions of the Industrial Disputes Act

was invoked, the Civil Court had no jurisdiction. There

was no error of fact or law and there was no substantial

question of law and even otherwise the questions of law

therefore as framed by the court are to be answered in

favour of the Municipality and the Appeals are to be

dismissed.

5.1 Mr. Devnani, learned advocate would rely on the

decisions of the Supreme Court in the case of Rajasthan

State Road Transport Corporation and others versus

Khadarmal reported in (2006) 1 SCC 59 and

Rajasthan State Road Transport Corporation and

another versus Ugma Ram Choudhary reported in

(2006) 1 SCC 61. Reliance was also placed on the

C/SA/164/2002 CAV JUDGMENT DATED: 17/08/2022

decision of the Supreme Court in the case of Milkhi Ram

versus Himachal Pradesh State Electricity Board

reported in (2021) 10 SCC 752. Based on these

decisions, Mr Devnani would submit that the appeal be

dismissed.

6. Mr. Prateek Bhatia, learned advocate for the

petitioners in Special Civil Application No. 22101 of 2019

would submit that since the petitioners were continued in

service till their retirement, they are entitled to be

granted the benefits of pension along with interest. He

relied on a decision of the Division Bench of this court in

the case of State of Gujarat vs Chandubhai reported in

(2018) 3 GLR 265. Mr Bhatia would submit that if the

Second Appeal is allowed consequential effect of that

would be that the petitioners would be deemed to have

continued in service, by virtue of the interim orders

passed by this court and having retired they were entitled

to the consequential benefits of pension and other

terminal benefits.

C/SA/164/2002 CAV JUDGMENT DATED: 17/08/2022

7. Mr. Soaham Joshi, learned Assistant Government

Pleader would submit that the proposal to consider

regularisation was also rejected in the year 2017 by an

order dated 01.11.2017 and the petition also therefore

was belated.

8. Having considered the submissions made by the

learned advocates for the respective parties, needless to

say that it is well settled that the scope of a Second

Appeal under section 100 of the Code of Civil Procedure

is very restricted and the same has to be entertained only

on the aspect of substantial question of law raised in the

appeal. As reproduced hereinabove, this Court had

framed two substantial questions of law while admitting

the appeal. The main question was whether the Civil

Court had committed any illegality in not entertaining the

suit on the ground that the remedy before the Civil Court

was barred. This Court has had the benefit of the

Appellate Court judgement which is extensively

C/SA/164/2002 CAV JUDGMENT DATED: 17/08/2022

considered on the facts and the law on the hand in in the

case. The Appellate Court after setting out the facts of

the case observed that the plaintiffs instituted the suit for

declaration and permanent injunction to declare as

under:

"(a) They being permanent employees of Manavadar Nagar Panchayat, Defts. are not entitled to discharge them without following procedure laid down under I.D. Acts and other Rules etc. and,

(b) Permanent injunction to the effect that Defts., their agents, servants be restrained from discharging the Pltfs. from service etc."

9. After appreciating the evidence on record and after

considerations of the grounds raised in the memorandum

of appeal, the appellate court found that it was the case

of the appellants that the municipality was trying to

terminate their services, though they had completed more

than 240 days in violation of the provisions of the

Industrial Disputes Act. It was the case of the panchayat

that the appointments of the appellants were not in

accordance with the recruitment rules and were only on

C/SA/164/2002 CAV JUDGMENT DATED: 17/08/2022

the basis of a resolution passed by the gram panchayat.

9.1 The Appellate Court, considering the provisions of

the Industrial Disputes Act and the decision of the

Supreme Court held as under:

13. From the aforesaid definitions of 'workman' and 'employer' it becomes clear that the appellants/pltfs. indisputably are workmen of respondent/deft. which is indisputably the 'employer' within the meaning of Section 2(g) of the said Act. From the definition of "industrial dispute" as given by Section 2(k), there is no manner of doubt and it is not disputed that dispute about dismissal/removal or discharge from service between the workman and the employer would squarely fall within the definition of "industrial dispute" as defined by Section 2(k) of the said Act.

14. In the case of CHANDRAKANT TUKARM NAKUM V. MUNICIPAL CORPORATION OF THE CITY OF AHMEDABAD, 1993(2) G.L.H. 756 (AIR 2002 SC 997), it was observed that :-

" Though it is true that the primary jurisdiction of the Civil Court to entertain the suit is determined by reference to the averments made in the plaint of the suit and accepting to the fact that plaintiff is the dominus litis who decides its forum on the basis of averments made in the plaint, while finally answering the question of jurisdiction the averments made in the

C/SA/164/2002 CAV JUDGMENT DATED: 17/08/2022

written statement filed by the defendant do assume importance especially when factually such averments cannot be disputed. Therefore, while industrial disputes specified in the Second Schedule, in our opinion, there is Court of competent jurisdiction to deal with specified matters and matters specified in Second Schedule are so widely worded that obviously challenge to an order of dismissal/removal from service including prayers for reinstatement and the question of propriety or legality of the order passed by the employer can also be gone into by the Court or Tribunal established under the said Act. The Labour Court or Industrial Tribunal, therefore, has jurisdiction to deal with the cases falling into first category, where identical challenges to those referred to in second category of cases are made, but where there is omission on the part of industrial establishment to frame Standing Orders or there is omission on the part of the State Government in issuing notification for making provisions of Model Standing Orders applicable to the establishment. In our opinion, on the aforesaid count, the cases falling into first category cannot be said to have been excluded from the jurisdiction of Labour Court/Industrial Tribunal.

It was also held as under:-

                "     In    the    context    of    Labour
                Court/Industrial    Tribunal    established

under the provisions of Industrial Disputes Act, 1947 and consequential plea of exclusion of jurisdiction of Civil Court in the case of Premier Automobiles Limited v.

C/SA/164/2002 CAV JUDGMENT DATED: 17/08/2022

Kamlakar Shantaram Wadke reported in (1975-II-LLJ-445) the Supreme Court has after examining the entire scheme of the Industrial Disputes Act, 1947, found that a very extensive machinery has been provided for settlement and adjudication of industrial disputes."

14.1 Having so examined the law, Hon'ble Supreme Court summed up the principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute by laying down the following four principles.

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 a particular remedy.

3. If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.

4. If the right which is sought to be enforced is a right created under the Act such as Chapter VA then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute, as the case may be."

14.2 Having so stated the four principles, which

C/SA/164/2002 CAV JUDGMENT DATED: 17/08/2022

would be determinative of the extra jurisdiction of the Civil court in relation to a industrial dispute, the Civil Court in relation to a industrial dispute, the court made most pertinent observations in the very next paragraph, and in our opinion, observations made in the next paragraph are in fact determinative of the scope and ambit of principle No. 2 reproduced hereinabove. In para-24 of the report the court observed as under:

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."

From the aforesaid observation, it becomes clear that when the dispute is an industrial dispute within the meaning of Section 2(k) of the said Act and when it is arising out of a right or liability under the general or common law and not under the Industrial Dispute Act, the

C/SA/164/2002 CAV JUDGMENT DATED: 17/08/2022

jurisdiction of the Civil Court is alternative. It must be stated that scope for such a dispute which is arising out of a right or liability under the general or common law is minimal and such a dispute would hardly arise. If it is an industrial dispute within the meaning of Section 2(k) of the Act, it can be said to be a dispute which is arising under the Act. In order to attract principle No. 2, two requirements must be specified.:

(1) though dispute is an industrial dispute within the meaning of Section 2(k) of the Act, it is not under the Industrial Disputes Act, 1947, and (2) such a dispute is one which is arising out of a right or liability under the general or common law only. In fact, such a contingency, is difficult to conceive or comprehend.

Therefore, hardly Civil Court will have occasion to deal with cases falling under principle No. 2. In our opinion, therefore, once it is established that the dispute is industrial dispute within the meaning of Section 2(k) of the said Act, there will be minimal or perhaps no chance of such dispute arising out of a right or liability under the general or common law only and such dispute almost invariably will be covered by principle No. 3 and as per that principle only remedy available to the person is to get an adjudication under the Industrial Disputes Act, 1947. If para 24 of the report in Premier-Automobiles case (supra) is read in proper perspective along with principle No. 2 stated in para 23 of the report, in our opinion, principle No. 2 would apply in a rarest of rare cases

C/SA/164/2002 CAV JUDGMENT DATED: 17/08/2022

and there will be very little scope or perhaps minimal scope for the Civil Court to deal with such dispute which is an industrial dispute as well as a dispute arising out of a right or liability under the general or common law only.

14.3 The Court held that remedy under Industrial Disputes Act cannot be said to be discretionary. The suit for declaration that dismissal of the appellant-plaintiff from service was bad and void, for backwages and for injunction - preventing the employer from giving effect to the order of dismissal is in substance the suit for the relief or reinstatement and backwages and is, therefore, not maintainable before a Civil Court.

14.4 It was held by Their Lordships that it is, therefore, clear that once the dispute is an industrial dispute, it would ordinarily a rise out of a right or liability under the Industrial Disputes Act and there can hardly be cases of dispute arising out of right or liability under the general or common law only. Therefore, if the dispute is one which is an industrial dispute and is arising out of right or liability under the Industrial Disputes Act as well as rights or liabilities under the general or common law, the case would not fall under the principle No. 2. In order to seek protection of principle No. 2 so as to uphold the jurisdiction of the Civil Court to entertain the suit, the suitor is required to establish that dispute is industrial dispute, which is arising out of a right or liability under the general or common law only and that it is not arising out of a right or liability under the Industrial Disputes Act. The Civil Court, therefore, will have hardly any occasion to deal

C/SA/164/2002 CAV JUDGMENT DATED: 17/08/2022

with this type of cases falling under principle No. 2. It is, thus, clear that in cases where the dispute is an industrial dispute and it arises out of right or liability arising from the provisions of the Industrial Disputes Act, 1947, the special remedy provided by that statute is the only remedy for the reliefs which could be granted by the Tribunal/Court established under the provisions of the said Act and therefore, a Civil Suit by necessary implication is barred, a Civil Court will have no jurisdiction.

14.5 In A.I.R. 2002 SUPREME COURT 997, while affirming the aforesaid Judgement of the Hon'ble High Court, the Apex Court observed as under:-

" The Industrial Disputes Act was enacted by the Parliament to provide speedy, inexpensive and effective forum for resolution of disputes arising between workmen and the employers, the underlying idea being to ensure that the workmen does not get caught in the labyrinth of civil courts which the workmen can ill afford, as has been stated by this Court in Rajasthan State Road Transport Corpn. case(supra). It cannot be disputed that the procedure followed by Civil Courts are too lengthy and consequently, is not an efficacious forum for resolving Industrial Disputes speedily. The power of Industrial Courts also is wide and such forums are empowered to grant adequate relief as they think just and appropriate. It is in the interest of the workmen that their disputes, including the dispute of illegal termination are adjudicated upon by an industrial forum.

C/SA/164/2002 CAV JUDGMENT DATED: 17/08/2022

To our query Mr. Ahmadi, learned counsel appearing for the appellants was not in a position to tell that the relief sought for in the cases in hand, cannot be given by a forum under the Industrial Disputes Act. The legality of order of termination passed by the employer will be an industrial dispute within the meaning of Section 2(k)and under Section 17 of the Industrial Disputes Act, every Award of Labour Court, Industrial Tribunal or National Tribunal is required to be published by the appropriate government within a period of thirty days from the date of its receipt and such Award published under sub-section (1) of Section 17 is held to be final."

15. Having regard to the facts and circumstances of the present case, and relief sought for in the suit filed in the Civil Court, I have come to the conclusion that in such cases, jurisdiction of Civil Court held to have been impliedly barred and appropriate forum constituted under the Industrial Disputes Act."

9.2 Even in the recent decision of the Supreme Court in

the case of Milkhi Ram (supra) the Supreme Court

considered the jurisdiction of the Civil Court under

Section 9 of the Code of Civil Procedure. The Supreme

Court held as under:

"10. To address the jurisdictional question posed by the employer, the learned Judge

C/SA/164/2002 CAV JUDGMENT DATED: 17/08/2022

referred to the judgments in Rajasthan SRTC & Ors. vs. Khadarmal1, Rajasthan SRTC & Anr. vs. Ugma Ram Choudhry and opined that the civil court did not have jurisdiction to entertain a claim based on the ID Act and if any decree is passed by the court without jurisdiction, the same shall have no force of law. Following the ratio in these two judgments, the High Court held that the civil court lacked inherent jurisdiction to entertain the suit based on the ID Act and the judgment and decree so passed, are nullity. It was further observed that the plea of decree being a nullity can also be raised at the stage of execution. The Revision petition filed by the judgment debtor was accordingly allowed by setting aside the decree passed in favour of the plaintiff. 1 (2006) 1 SCC 59 2 (2006) 1 SCC 61

11. Challenging the intervention of the High Court against the decree holder, Mr. Ajit Singh Pundir, the learned counsel submits that the appellant has rendered service as a daily wager since 11.12.1976 and his service could not have been terminated without following the due process. According to the appellant's counsel even when relief is claimed based on the provisions of the ID Act, the jurisdiction of the civil court is not entirely barred. In support of his contention, Mr. Pundir relies upon Rajasthan State Road Transport Corporation and Ors. vs. Mohar Singh3.

12. On the other hand, Mr. Naresh K. Sharma, the learned counsel for the respondent Board, in support of the impugned judgment, reiterates the contention made before the High Court and submits that jurisdiction of the civil court is ousted when claimed relief is founded

C/SA/164/2002 CAV JUDGMENT DATED: 17/08/2022

on the ID Act. It is further argued that when the civil court had no jurisdiction, the decree is nothing but a nullity and no relief on the basis of such void decree can be claimed by the plaintiff. In order to demonstrate the bonafide of the employer, Mr. Sharma refers to the letter dated 22.8.2001, 3 (2008) 5 SCC 542 offering the post of LDC and how the said offer did not fructify only because of the adamancy of the appellant, who failed to furnish a proper joining report. Insofar as the relief of back wages ordered by the civil court, the counsel submits that the Board has already remitted the arrear salaries to the appellant.

13. The above contentions of the parties indicate that the only issue to be considered here is whether the suit before the civil court at the instance of the terminated employee, was maintainable. The civil courts may have the limited jurisdiction in service matters, but jurisdiction may not be available to Court to adjudicate on orders passed by disciplinary authority. The authorities specified under the ID Act including the appropriate government and the industrial courts perform various functions and the ID Act provides for a wider definition of "termination of service", the condition precedent of termination of service. The consequence of infringing those, are also provided in the ID Act. When a litigant opts for common law remedy, he may choose either the civil court or the industrial forum.

14. In the present matter, the appellant has clearly founded his claim in the suit, on the provisions of the ID Act and the employer therefore is entitled to raise a jurisdictional objection to the proceedings before the civil

C/SA/164/2002 CAV JUDGMENT DATED: 17/08/2022

court. The courts below including the executing court negated the jurisdictional objection. The High Court in Revision, however has overturned the lower court's order and declared that the decree in favour of the plaintiff is hit by the principle of coram non judice and therefore, the same is a nullity.

15. The cited cases i.e. Khadarmal (supra) and Ugma Ram Choudhry (supra) pertain to employees under the Rajasthan State Road Transport Corporation. The three judges Bench of this Court while adverting to the challenge to termination of service opined that the civil court has no jurisdiction to entertain such cases. For such conclusion, the court referred to two earlier decisions in Rajasthan SRTC vs. Krishna Kant4 and Rajasthan SRTC vs. Zakir Hussain5 and held that when civil court has no jurisdiction, the decree passed 4 (1995) 5 SCC 75 5 (2005) 7 SCC 447 in those proceedings can have no force of law. On the back wages already disbursed to the terminated employee, in Ugma Ram Choudhry (supra), the court on equitable principles observed that the disbursed amount should not be recovered from the employee.

16. As can be seen from the material on record, the challenge to the termination was founded on the provisions of the ID Act. Although jurisdictional objection was raised and a specific issue was framed at the instance of the employer, the issue was answered against the defendant. This Court is unable to accept the view propounded by the courts below and is of the considered opinion that the civil court lacks jurisdiction to entertain a suit structured on the provisions of the ID Act. The decree favouring

C/SA/164/2002 CAV JUDGMENT DATED: 17/08/2022

the plaintiff is a legal nullity and the finding of the High Court to this extent is upheld."

10. What is therefore evident is that no fault can be

found inasmuch as the Trial Court as well as the

Appellate Court committed no error in holding that the

Civil Court has no jurisdiction to entertain a civil suit

under section 9 of the Code of Civil Procedure in the face

of the provisions of the Industrial Disputes Act,1947.

11. Coming to the alternative submission of Mr. Tanna,

that the appellants were retained in service despite the

liberty given to the municipality to terminate the services

and they continued till the pendency of the appeal by

virtue of the interim order passed by this court and

during the pendency of the appeal have died or have

retired, therefore consequential benefits should accrue to

the appellants and their heirs, it is well settled that

merely because of operation of interim orders a benefit

has accrued to the litigant they cannot then claim the

benefits of such interim orders if the litigation finally ends

against them. Here the Courts below came to the

C/SA/164/2002 CAV JUDGMENT DATED: 17/08/2022

conclusion that a remedy by way of a Civil Suit was

barred. The Appellants rather than exploring the

possibility of then invoking the remedy under the

Industrial Disputes Act,1947 pursued their appeal and

then when did not succeed approached this Court and

earned an interim order which continued. They cannot

then plead that the benefit of the interim order during the

pendency of the appeal be given in favour and the appeal

which otherwise had no merit be decided based on the

benefit of the interim orders.

12. Having found reason not to entertain the Second

Appeal, there is no reason why the reliefs prayed for in

the petition also should be granted. Unfortunately for

reasons beyond control, the appeal could not be decided

expeditiously but that itself would not give a right to a

litigant to claim such benefits which he was not otherwise

entitled to.

13. For the aforesaid reasons, the Second Appeal stands

C/SA/164/2002 CAV JUDGMENT DATED: 17/08/2022

dismissed. Interim relief stands vacated forthwith. Civil

Application also stands disposed of. In view of the

dismissal of the Second Appeal, Special Civil Application

No. 22101 of 2019 shall also stand dismissed with no

order as to costs. Rule is discharged.

(BIREN VAISHNAV, J) DIVYA