Gujarat High Court
Taluka Panchayat vs Harijan Raghavbhai Khimjibhai on 26 June, 2024
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C/SA/30/2001 JUDGMENT DATED: 26/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 30 of 2001
With
R/SECOND APPEAL NO. 29 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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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 ?
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TALUKA PANCHAYAT
Versus
HARIJAN RAGHAVBHAI KHIMJIBHAI
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Appearance:
MR APURVA JANI for MR ASHISH M DAGLI(2203) for the Appellant(s) No. 1
Ms. DIXA U PANDYA(9412) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 26/06/2024
COMMON ORAL JUDGMENT
1. As in both the second appeals, the impugned judgment
and decree is common, one and the same, with the consent of
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learned advocates appearing for the parties, they are being
disposed of by this common judgment.
2. Second Appeal No.30 of 2001 is filed against the judgment
and order dated 26.4.2000 passed by the learned Extra
Assistant Judge, Morbi in Civil Misc. Appeal No.5 of 1998,
whereby the learned appellate Court modified the judgment and
decree dated 31.12.1997 passed by the learned Civil Judge
(J.D.), Wankaner in Regular Civil Suit No.57 of 1991 to the
extent of allowing the cross objection-cum-appeal by directing
the defendant Panchayat to pay up the entire amount of salary
with effect from impugned order dated 6.5.1991 till today within
a period of three months from the date of this judgment.
2.1 Second Appeal No.29 of 2001 is filed against the judgment
and order dated 26.4.2000 passed by the learned Extra
Assistant Judge, Morbi in RCA No.1 of 1998, whereby the
learned appellate Court confirmed the judgment and decree
dated 31.12.1997 passed by the learned Civil Judge (J.D.),
Wankaner in Regular Civil Suit No.57 of 1991.
3. Brief facts of the case are as under:-
3.1 The plaintiff has been appointed as a permanent servant
of defendant Panchayat as a House Master (Grahpati) for
Schedule Caste Kumar Chhatralay, which has been running by
State of Gujarat Social Welfare Department, Gandhinagar and
the same has been handled by the present defendant Panchayat.
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That defendant Panchayat following necessary procedure for
advertisement of House Master, received 40 applications and
thereafter completing the formality of viva test, issued
appointment letter to present plaintiff on the vacant permanent
post of Grahpati at Wankaner on the fixed monthly pay for
Rs.800/- with effect from 31.8.1989. That initially plaintiff was
given appointment letter for a period of 29 days, but he has been
continuing in service without any break and therefore, he
becomes entitled to the rights of a permanent employee. The
plaintiff has been performing his duties regularly honestly and
without any stigma. Yet defendant Panchayat passed a
movement order on 6.5.91 which was neither served to the
plaintiff nor he was removed from service and even after the said
movement order, he has been continuing in service till today.
Therefore, the plaintiff filed Regular Civil Suit No.57 of 1991 to
declare that the impugned movement order dated 6.5.91 null &
void and not binding to him and further defendant Panchayat be
directed to pay salary from the date of said order and all
allowances permissible to him from the date of his movement
order. Defendent Panchayat has filed it's reply before the Trial
Court vide Ex.13.
3.2 The learned trial Court framed issued vide Ex.76 and after
recording the evidence of both the parties and hearing the
arguments he recorded the judgment and passed the judgment
and decree as stated above in favour of the plaintiff.
3.3 Being aggrieved and dissatisfied by the impugned judgment
and decree, the defendant Panchayat has preferred RCA
No.1/1998 and the plaintiff has preferred civil Misc. Appeal
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No.5/1998.
3.4 The learned appellate Court vide order dated 26.4.2000,
has been pleased to dismiss RCA No.1 of 1998, however, allowed
Civil Misc. Appeal No.5 of 1998 in the form the cross objection-
cum-appeal of the plaintiff and directed the defendant Panchayat
to pay up the entire amount of salary with effect from impugned
order dated 6.5.1991 till today within a period of three months
from the date of this judgment.
4. Second Appeal Nos.30 of 2001 and 29 of 2001 are admitted
on the following substantial questions of law:-
"1. Whether on the facts and in the circumstances
of the case, the Civil Court has jurisdiction to entertain
the dispute between the employee and employer ?
2.Whether the Court below has committed serious
error of law in entertaining the dispute between the
employee and the employer even though earlier
employee of Panchayat had already filed LCR No.226 of
1989 before the Labour Court, Rajkot with a prayer to
reinstate him and as he claimed to be a permanent
employee for the very post ?
3.Whether the appellate Court has committed serious
error of law in granting the relief beyond the scope of
relief of suit ?
4.Whether on the facts and in the circumstances of the
case, the principle of equity and principle of "no work
no pay" would come while deciding the relief prayed
before the appellate Court?
5.Whether on the facts and in the circumstances of the
case, and because the admission of plaintiff himself
that from 91-92 no students were admitted in the
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hostel and from 91-92 no services of the plaintiff were
taken, is he entitled to claim salary of the post period
91-92 to 2000 ?"
5. For convenience, the parties to the proceedings are referred
to as per their original status before the learned trial Court.
6. Heard learned advocate Mr. Apurva Jani for learned
advocate Mr. Ashish Dagli for the defendant and learned
advocate Ms. Dixa Pandya for the plaintiff.
7. What appears from the record that the plaintiff had filed
Regular Civil Suit No.57 of 1992 before the learned trial Court
for declaration and permanent injunction. The plaintiff was
working as a House Master (Grahpati) in Schedule Caste Kumar
Chhatralay, which has been running by State of Gujarat Social
Welfare Department, Gandhinagar and the same has been
handled by the present defendant Panchayat. He joined service
on contractual basis on 2.9.1989 and he was discontinued from
service w.e.f. 6.5.1991 vide order dated 6.5.1991 on the reason
that there is no vacant post available with the Taluka Panchayat.
Thus, the plaintiff approached the civil Court seeking relief that
order dated 6.5.1991 discontinuing his service be declared as
null and void, arbitrary and against the principle of natural
justice. A further relief was also asked by the plaintiff to the
effrect that the defendant Panchayat be restrained frm taking
charge of House Master (Grahpati) from him and not to execute
the order dated 6.5.1991 and also to restrain the defendant
Panchayat from taking possession of the quarter given to him as
a part of service. The suit was partly allowed by the learned trial
Court and the service of the plaintiff was ordered to be continued
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by quashing and setting aside the order dated 6.5.1991 by the
defendant Panchayat.
8. An unsuccessful challenge was made before the learned
appellate Court by the defendant by way of filing RCA No.1 of
1998. The plaintiff has also challenged the impugned judgment
and decree by way of filing cross objection-cum-appeal being
Civil Misc. Appeal No.5 of 1998.
9. This Court while admitting the second appeals framed
above substantial questions of law.
10. It is undisputed that this is a dispute between the
employee and the employer. Whether the learned trial Court u/s
9 of the CPC can entertain such dispute is the question to be
decided in these second appeals. The issue of jurisdiction of civil
Court to entertain dispute of employee and employer is no more
res integra. The Hon'ble Apex Court addressed this issue in case
of Rajasthan State Road Transport Corporation and others Vs.
Deen Dayal Sharma reported in (2010) 6 SCC 697. The relevant
paras are para 8 to 11 and 17, which reads as under:-
"8. In the case of Rajasthan State Road Transport
Corporation and Another V/s. Krishna Kant and Others
(1995) 5 SCC 75, this Court was concerned with the
question, where the dispute between the employer and
the workmen involves the recognition, application or
enforcement of the certified Standing Orders, whether
jurisdiction of Civil Court to entertain a suit with
respect to such dispute is barred. A three Judge Bench
extensively considered the nature of the Standing
Orders; the scope of `Industrial Dispute' and a long line
of cases of this Court, including Premier Automobiles 1,
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and summarized the legal position 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 Sec.
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 Sec. 2(k) and Sec. 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
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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."]
9. In Rajasthan State Road Transport Corpn. And
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Others V/s. Zakir Hussain', (2005) 7 SCC 447 this
Court held that the employees of the State Road
Transport Corporation are not Civil servants, and they
are not entitled to protection of Article 311 (2) of the
Constitution. While dealing with the question of
jurisdiction of Civil Court in the matters of industrial
dispute, this Court applied the principles enunciated in
Krishna Kant2 in the following words:-
["35.... This Court has very explicitly summarised
the principles flowing from the discussion in the
judgment in para 35 and applying the above
principles this Court has categorically held that
the suits filed by the employees in those appeals
were not maintainable in law....]
[36. For the foregoing reasons, we hold that the
respondent ought to have approached the
remedies provided under the Industrial Disputes
Act. He has miserably failed to do so but
approached the Civil Court, which on the facts
and circumstances of the Case has no jurisdiction
to entertain and try the suit."]
10. A three Judge Bench of this Court in the case of
Raiasthan SRTC and Others v. Khadarmal = (2006(1)
SCC 59, again Considered the question regarding
jurisdiction of Civil Court in the matter of termination of
service of a probationer and following the judgments
ofthis Court in Zakir Hussain - and Krishna Kant' held:-
["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...."]
11. It appears that in the case of Rajasthan State Road
Transport Corporation and another V/s. Bal Mukund
Bairwa - (2005) 14 SCC 41, a two Judge Bench of this
Court noticed some conflict in the judgments of this
Court in Krishna Kant and Khadarnial and, accordingly,
referred the matter to a larger Bench. A three Judge
Bench of this Court in its decision titled Rajasthan State
Road Transport Corporation and Another V/s. Bal
Mukund Bairwa (2) - (2009) 4 SCC 299, revisited the
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issue with regard to jurisdiction of Civil Court to
entertain suits questioning the orders of termination
and held as follows:-
["36. 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/s. 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.]
[37. 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.]
[38. 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 Sec. 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
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conditions of service are governed by, the rules
framed under the proviso appended to Art. 309 of
the Constitution of India or a statute and would
otherwise be governed by Art. 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.]
[39. 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."
14. The case of the respondent as set up in the plaint,
therefore, is that in the absence of Departmental
enquiry as contemplated in Standing Orders, the order
of dismissal is bad in law. It is true that respondent
pleaded that he has been dismissed from service
without affording any opportunity of defence and
hearing and in breach of principles of natural justice
but the said plea has to be understood in the backdrop
of his pleading that the dismissal order has been passed
contrary to Standing Orders without holding any
Departmental enquiry."
11. In background of the above settled legal position, if we see
the relief claimed by the plaintiff, it covered under the Industrial
Dispute Act and therefore, the plaintiff was required to file
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appropriate proceedings before the Labour Court under
appropriate provisions. The learned trial Court being civil Court
was coram non judice to adjudicate the issue placed before it.
12. In background of above circumstances, the question No.1
framed herein above therefore, is answered in negative and rest
of the questions are answered accordingly.
13. Resultantly, second appeals are allowed and the impugned
judgment and decree passed by the learned Courts below are
quashed and set aside and the suit filed the plaintiff stands
dismissed. Decree to be drawn accordingly. No order as to
costs.
14. R & P to be sent back to the concerned Court immediately.
15. Needless to say that this Court has not touched and
decided the issue on the touchstone of civil Court's jurisdiction.
If the plaintiff has any right and relief, it should be under the
provisions of the Industrial Dispute Act. The plaintiff can
approach the appropriate forum. It is further observed that
unfortunately, the plaintiff was prosecuting his relief in wrong
forum.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
