Madras High Court
The Deputy Manager vs Mellina Mary on 21 April, 2021
CRP.PD.No.467 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.04.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.PD.No.467 of 2018
and
CMP.No.2484 of 2018
The Deputy Manager
Mr.S.Veerapandi
Nonsuch Tea Estates Ltd.,
Coonoor, Coonoor Taluk,
The Nilgiris District. ... Petitioner
Vs.
Mellina Mary ... Respondent
PRAYER: The Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the fair and final order dated 22.12.2016
in I.A.No.384 of 2016 in O.S.No.35 of 2016 passed by the learned District
Munsif, Coonoor, The Nilgiris.
For Petitioner : Mr.R.Subburaj
For Respondents : M/s.AL.Gandhimathi
1/17
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CRP.PD.No.467 of 2018
ORDER
This Civil Revision Petition is directed against the fair and final order
passed in I.A.No.384 of 2016 in O.S.No.35 of 2016 dated 22.12.2016 on the
file of the learned District Munsif, Coonoor, The Nilgiris, thereby
dismissing the petition for rejection of plaint.
2. The petitioner is the second defendant and the respondent is the
plaintiff. The respondent filed a suit for declaration to declare that the
de-promotion order dated 29.04.2016 as null and void ab initio and not
binding on the respondent. She also prayed for direction to direct the
petitioner to withdraw the order of de-promotion dated 29.04.2016 and
permit the respondent to report for work as Assistant Factory Officer. While
pending the suit, the petitioner filed a petition for rejection of plaint and the
same was dismissed and aggrieved by the same, the present Civil Revision
Petition is filed.
3. The learned counsel for the petitioner submitted that the
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CRP.PD.No.467 of 2018
respondent was appointed as Supervisor in the year 2011 and she was
governed by the Standing Orders for Estate Workmen. Thereafter, the
respondent had been promoted as Assistant Factory Officer on 01.05.2015
and placed on probation for a period of 12 months with effect from
01.05.2015. The probation period ends on 30.04.2016 and she was
governed by joint standing orders for the estate staff. An appointment on
probation is always deemed to be made against an existing permanent
vacancy and the period of probation is a period for testing the suitability of
a candidate for that post in all respects. The services of the respondent as
probationary Assistant Factory Officer was found to be unsatisfactory and
as such, she was transferred as Assistant Field Officer with effect from
01.12.2015. However, at the end of the probationary period, the service of
the petitioner was found not satisfactory and found to be unsuitable for
promotion and as such, she was reverted back to her substantive post of
Supervisor. As per proviso to clause 4 (b) of the prevailing Joint Standing
Orders for Estate Staff, she was reverted back from the post of Assistant
Field Officer to the substantive post of Supervisor with effect from
01.05.2016 by an order dated 29.04.2016.
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CRP.PD.No.467 of 2018
4. He further submitted that the respondent is the employee and the
petitioner is the employer and they are governed by laws applicable in the
Industrial Disputes Act, 1947. The Industrial Dispute means any dispute or
difference between the employer and employee or between the employers
and the workmen or between the workmen and the workmen which is
connecting with the employment or non-employment or the terms of the
employment or with the conditions of labour of any person as defined under
Section 2(k) of the Industrial Disputes Act, 1947. Therefore, the respondent
ought to have taken remedy before the Labour Court separately established
for that purpose. In fact, the respondent also filed a petition before the
conciliation officer and the same had failed. Instead of raising Industrial
disputes, the respondent filed the present impugned suit and the Civil Court
has no jurisdiction to entertain the labour disputes. The promotion is not a
matter of Civil Right. Therefore, the Civil Court has no jurisdiction to
entertain the Civil Suit challenging the de-promotion order and the cause of
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CRP.PD.No.467 of 2018
action involved recognition of promotion and enforcement of rights of the
sister enactment, viz., the Standing Orders. Therefore, the respondent has to
approach the labour forum in accordance with law. Unfortunately, without
considering the above, the Court below dismissed the petition for rejection
of plaint. In support of his contentions, he relied upon the judgment
reported in (2002) 2 SCC 542 (Chandrakant Tukaram Nikam v.
Municipal Corpn. of Ahmedabad) and further, he relied upon the judgment
reported in (2005) 4 MLJ 685 (Bharat Petroleum Corporation Limited -vs-
D.Nagendra).
5. Per contra, the learned counsel for the respondent contended that
the respondent filed a suit as per the provision laid under the Civil
Procedure Code and it is very much maintainable. The respondent was
promoted to the post of Assistant Field Officer and thereafter, without even
conducting any enquiry, she was de-promoted to the post of Supervisor. It is
a clear violation of natural justice and the respondent has right of promotion
and as such, the respondent rightly filed the suit for declaration to declare
the de-promotion order dated 29.04.2016 as null and void. The respondent
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CRP.PD.No.467 of 2018
approached the Civil Court for the breach of statutory obligation of the right
under the general common law and not under the Industrial Disputes Act.
Therefore, the jurisdiction of the Civil Court is not ousted under the
Industrial Disputes Act and the Civil Court has got jurisdiction to deal with
the issue. She further submitted that when the suit is not barred by any law,
there is no prohibition under the Industrial Disputes Act and the respondent
can very well maintain the suit. The very issue is the dispute between the
employee and the employer and the right of promotion is in dispute.
Therefore, the Civil Suit is very much maintainable and the Court below
rightly dismissed the petition for rejection of plaint. In support of her
contentions, she relied upon the judgment reported in 1995 (5) SCC 75
(Rajasthan State Road Transport Corporation -vs- Krishna Kant & Ors).
6. Heard the learned counsel for the petitioner as well as the learned
counsel appearing for the respondent.
7. The respondent is the plaintiff and the petitioner is the second
defendant. The respondent filed a suit for declaration to declare that the
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CRP.PD.No.467 of 2018
de-promotion order dated 29.04.2016 as null and void and also for direction
to direct the petitioner and another to withdraw the de-promotion order
dated 29.04.2016 and permit the respondent to report for working as
Assistant Factory Officer. The petitioner had taken a specific stand that the
respondent was governed by her Joint Standing Orders for the estate staff.
Under the provision of Joint Standing Orders for the Estate Staff, the
petitioner's estate is not vested with any power to extend the probationary
period of any person appointed as staff beyond 12 months. Whether to
confirm or revert back to substantive post for un-satisfactory work, the
decision has to be taken within 12 months. Accordingly, no enquiry is
required or compliance of any notice would be necessary. Since the service
of the respondent as probationary Assistant Factory Officer was found to be
un-satisfactory, she was transferred as Assistant Field Officer with effect
from 01.02.2015. However, at the end of the probationary period, the
petitioner found the service of the respondent both as Assistant Factory
Officer as well as the Assistant Field Officer to be un-satisfactory and found
her to be unsuitable for promotion. Hence, she was reverted back to her
substantive post as Supervisor. Therefore, the petitioner filed a petition for
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CRP.PD.No.467 of 2018
rejection of plaint on the ground that the Civil Court does not have
jurisdiction to entertain the suit with regard to an Industrial Dispute
between the employer and the employee. The respondent has to approach
only the Labour Court under the Industrial Disputes Act, which is an
exhaustive legislation applicable for labour disputes and separately framed
for that purpose.
8. The Court below dismissed the petition for rejection of plaint on
the ground that the dispute between the respondent and the petitioner is not
an Industrial Disputes. The Court below further observed that under Order
VII Rule 11 (d) of the Code of Civil Procedure deal with the rejection of
plaint where the suit appears from the statement in the plaint to be barred by
any law. The Court below is of the view that the impugned suit is not barred
by any law and therefore, dismissed the petition for rejection of plaint.
9. The learned counsel for the petitioner relied upon the judgment
reported in (2002) 2 SCC 542 (Chandrakant Tukaram Nikam v.
Municipal Corpn. of Ahmedabad), wherein it is held as follows:-
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CRP.PD.No.467 of 2018
"5. ....It may be borne in mind that the Industrial
Disputes Act was enacted by 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 do not get caught in the
labyrinth of civil courts which the workmen can ill-afford, as
has been stated by this Court in Rajasthan SRTC case [(1995)
5 SCC 75 : 1995 SCC (L&S) 1207 : (1995) 31 ATC 110] . It
cannot be disputed that the procedure followed by civil courts
are too lengthy and consequently, are not an efficacious forum
for resolving the industrial disputes speedily. The power of the
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. 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 the
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 the Labour Court, Industrial Tribunal or National Tribunal
is required to be published by the appropriate government
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CRP.PD.No.467 of 2018
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.
6. In the aforesaid premises and having regard to the
relief sought for in the suits filed in the civil court, we have no
manner of hesitation to come to the conclusion that in such
cases the jurisdiction of the civil court must be held to have
been impliedly barred and the appropriate forum for
resolution of such dispute is the forum constituted under the
Industrial Disputes Act. We, therefore, do not find any
infirmity with the impugned judgment of the High Court
requiring our interference. The appeals accordingly fail and
are dismissed. We would however observe that it would be
open for the appellant workmen to approach the appropriate
industrial forum and such forum if approached, will dispose of
the matter on its own merits. There will be no order as to
costs."
10. The Three Judges of the Hon'ble Supreme Court of India held that
in the dispute between the employer and employee, the jurisdiction of the
Civil Court must be held to have been impliedly barred and the appropriate
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forum for resolution of such dispute is the forum constituted under the
Industrial Disputes Act. Originally, the above cited judgment was referred
to the Five Judges Bench of the Hon'ble Supreme Court of India and again,
it was referred to the Three Judges Bench of the Hon'ble Supreme Court of
India. The above cited judgment also considered the principle enunciated in
the case reported in 1995 (5) SCC 75 (Rajasthan State Road Transport
Corporation -vs- Krishna Kant & Ors) in which the Three Judges Bench of
the Hon'ble Supreme Court of India summarized the principles as below:-
"(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 the Industrial Employment (Standing
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Orders) Act, 1946 — which can be called ‘sister enactments’
to the 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 the 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
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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 the 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
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they think appropriate in the circumstances for putting an end
to an industrial dispute."
11. The Hon'ble Supreme Court of India held that 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. 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 as "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 the Industrial Disputes Act.
12. In the case on hand, the respondent was governed by the Joint
Standing Orders for the Estate Staff of the petitioner. The petitioner being
the employer, it is well within his rights to terminate or de-promote the
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services of the probationer as the case may be, if she is found unsuitable for
the post. In fact, the learned counsel for the respondent also cited the above
judgment reported in reported in 1995 (5) SCC 75 (Rajasthan State Road
Transport Corporation -vs- Krishna Kant & Ors). 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.
Therefore, the Civil Court is barred to entertain the dispute between the
employee and the employer.
13. In view of the above discussion, this Civil Revision Petition is
allowed and the order passed in I.A.No.384 of 2016 in O.S.No.35 of 2016 is
set aside. The impugned plaint in O.S.No.35 of 2016 is hereby rejected.
However, the respondent is at liberty to approach the appropriate forum
under the Industrial Disputes Act in the manner known to law, if she is so
advised. Consequently, the connected Miscellaneous Petition is closed. No
order as to costs.
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CRP.PD.No.467 of 2018
21.04.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
kv
G.K.ILANTHIRAIYAN,J.
Kv
To
1. The District Munsif, Coonoor, The Nilgiris.
2. The Section Officer,
V.R.Section, High Court of Madras.
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CRP.PD.No.467 of 2018
CRP.PD.No.467 of 2018
21.04.2021
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