The Siasat Urdu Daily vs Khaja Atherddin,
2022 Latest Caselaw 3668 Tel

           HON'BLE SMT. JUSTICE P.SREE SUDHA

         CIVIL REVISION PETITION No.6816 of 2017

                            ORDER

1. Aggrieved by the order dated 27.10.2017 passed in

I.A.No.1776 of 2015 in O.S.No.1173 of 2014 on the file of the

learned III Additional Chief Judge, City Civil Court, Hyderabad,

the petitioners herein preferred this revision petition.

2. One Khaja Atheruddin, Senior News Reporter in Siasat

Urdu Daily Newspaper, filed a suit in O.S.No.1173 of 2014

seeking the reliefs of reinstatement into service or in alternate

Rs.5,00,000/- towards damages, for arrears of salary along with

interest @ 18% per annum, salary for the entire period of his

deemed service during the pendency of the suit, damages for

issuing order of transfer at the rate of Rs.25,000/- till

reinstatement and also Rs.1,00,000/- for violation of his rights

against the partners of Siasat Urdu Daily Newspaper, the

Principal Secretary, Labour and Employment, Commissioner of

Labour, Joint Commissioner of Labour and Deputy Director

General, Wage Award, Wage Cell.

3. The defendants in the suit filed an application viz.,

I.A.No.1176 of 2015 seeking to reject the plaint as being barred

by Labour Law or Industrial Disputes Act. The defendants

would mainly contend that the plaint averments amount to

industrial dispute and they have to be adjudicated by Labour

Court or Industrial Tribunal. It is averred in the affidavit filed in

support of the petition that the plaintiff raised a complaint

dated 22.09.2014 against the Defendant Nos.5 to 8 for redressal

of his grievance, upon which the Labour Department served a

notice dated 26.09.2014 to the first defendant calling for an

explanation. The first defendant communicated the same to the

Labour Department. The Ministry of Labour and Employment

forwarded the complaint to the Principal Secretary, Labour and

Employment, for taking necessary action. It was further averred

in para 26 of the plaint that the alleged transfer order was

illegal, unjust, amounts to victimization and unfair labour

practice. Therefore, the dispute raised by the plaintiff is an

industrial dispute and the appropriate forum was contemplated

under the Industrial Disputes Act, but not the civil Court. He

would also assert that the Industrial Tribunal or by Courts

constituted to adjudicate such disputes. The defendants also

extracted the definition of 'industrial disputes' under Section

2(k) of the Act and further stated that in various Courts the

dispute between the employer and working Journalists was

treated as industrial dispute within the definition of Section 2(k)

of the Act and thus, the jurisdiction of the civil Court is ousted

under Section 9 CPC. Plaintiff also submitted his resignation

letter on 11.05.2015 to the first defendant and hence requested

the Court to reject the plaint.

4. In a counter filed by the respondent-plaintiff before the

trial Court while denying the averments made in the affidavit,

submitted that the relief sought for in the present suit is

different and distinct from the relief sought in the

representation to the authorities and that the authorities are

incompetent to grant the reliefs sought in the suit. The plaintiff

would also state that he was not prevented to file a civil suit and

that there is no bar in any of the provisions. He filed the suit

against the inaction on the part of the Labour Department and

as such, the civil Court is having jurisdiction to try the suit and

that the trial Court after considering the arguments of both the

counsel, dismissed the application.

5. Learned counsel for the petitioners-defendants would

argue that the trial Court observed that the relief of industrial

dispute involved cannot be granted by the Court as Order 2

Rule 2 applies and as such the observation is not proper. He

would also further assert that the trial Court without

considering the main reliefs, considered the alternative relief of

damages and as such the suit is not maintainable and thus,

requested the Court to set aside the order of the trial Court.

6. Heard the arguments advanced by the learned counsel for

the revision petitioners-defendants and the learned counsel

appearing for the respondent-plaintiff.

7. Admittedly, the plaintiff in the suit is a Senior Reporter in

Siasat Urdu Daily Newspaper. He was appointed on 01.01.2005

as a Staff Reporter and kept under probation for four months

and then his services were regularized. He raised voice against

the management for non-payment of enhanced salary as per the

directions of Majithia Wage Board and the directions of the

Hon'ble Apex Court. Therefore, he was transferred from

Hyderabad to the sister concern at Bangalore to work at Danish

Publications. The plaintiff would mainly assert that it is an

independent entity but not sister concern of Siasat organisation

and as such he gave representations to the partners of Siasat

Urdu Daily Newspaper and also to the higher officials of the

Labour Department. When the management compelled him to

resign, he tendered his resignation and filed suit for

reinstatement, arrears of salary and for damages.

8. Now it is for the Court to see whether the above issue can

be considered as an industrial dispute.

9. As per the decision in RAJASTHAN STATE ROAD

TRANSPORT CORPORATION V/s. BAL MUKUND BAIRWA1 in

which it was held that 'a dispute arising in between an employer

and employee may or may not be an industrial dispute'. In the

said judgment it is also clearly stated that the person taking the

plea of ouster of jurisdiction of the civil Court, it was held that

'the question in regard to the jurisdiction of the civil Court must,

therefore, be addressed having regard to the fact as to which

rights or obligations are sought to be enforced for the purpose of

invoking or excluding the jurisdiction of a civil Court. 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 Standing Order 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

2009 (3) ALD 104 (SC)

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. Jurisdiction of civil Court under Section 9

being plenary one, provisions relating to bar of jurisdiction of civil

Court to entertain a suit must be laid down expressly or by

necessary implications. Ouster not to be readily inferred. Person

taking plea of ouster of jurisdiction of civil Court must establish

same. Even when jurisdiction of civil Court sought to be barred

under a statute, civil Court can exercise its jurisdiction, when

statutory authority/Tribunal acts without jurisdiction.' It was also

held that when there is a dispute to try a suit or not, the Court

shall raise a presumption that it has jurisdiction.

10. Learned counsel for the petitioners-defendants would rely

upon a case law reported in THE PREMIER AUTOMOBILES

LIMITED V/s. KAMLEKAR SHANTARAM WADKE OF

BOMBAY2, which was also considered in RAJASTHAN STATE

ROAD TRANSPORT CORPORATION's case (supra).

11. Learned counsel for the respondent-plaintiff would rely on

a case law reported in AMERICAN EXPRESS BANK LTD. V/s.

(1976) 1 SCC 496

RAVINDER KUMAAR SAINI3 in which it was held that if

dispute arises out of a right or liability under General or

Common Law, workman has choice to invoke machinery under

Act or to file a civil suit, inasmuch as both remedies are

available to said person. In this case the principles applicable to

jurisdiction of the civil Court in relation to industrial dispute

were laid down, which are as follows:

'The principles applicable to the jurisdiction of the civil court in relation to an industrial dispute are:

(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.

MANU/DE/1337/2008

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

12. The revision petitioners would mainly contend that in

various Courts it was held that the dispute between the

employer and working Journalists falls within the ambit of

'industrial dispute' and more over in the plaint itself the plaintiff

stated that he filed suit basing on the victimization and unfair

labour practice and as such his remedy lies with the Industrial

Tribunal but not with the civil Court. He also relied upon

Section 9 CPC, which reads as follows:

'The Courts shall (subject to the provisions herein contained) have jurisdiction to try all the suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred'.

13. Section 2(k) of the Industrial Disputes Act, 1947 states to

the following effect:

'.... any dispute or deference between Employer or Employee or between Employer or 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. Learned counsel for the respondent-plaintiff would argue

that the issues raised by his client before the concerned

authorities are different from the issues raised by him in the

suit and the said authorities under the Industrial Disputes Act

are not competent to decide the same. When the remedy of the

plaintiff is against common law provisions, he has an option to

choose the forum and as such it cannot be said that the dispute

squarely falls within the scope of Industrial Disputes Act.

15. In the case on hand, the dispute revolves around the

employer and employee and as such it is for the petitioners-

defendants to establish whether the respondent-plaintiff is a

workman or not and Siasat Urdu Daily Newspaper is an

industry. Admittedly, the plaintiff is a Senior Reporter as on the

date of filing the suit and hence he will not fall within the ambit

of workman and he filed suit for enforcement of his right. If the

dispute arises out of a right or liability under the General or

Common Law, he has a choice to invoke the jurisdiction either

under Industrial Disputes Act or to file the civil suit. Since both

the remedies are available to the plaintiff, he has option either

to file the suit before the civil Court or to approach the

Industrial Tribunal, but he opted the civil Court. Merely because

the plaintiff gave representations to the Labour Department for

redressal of his grievance and on mentioning the fact that he

was aggrieved by the victimization and unfair labour practice, it

cannot be said that it attracts the provision under Section 2(k)

of the Industrial Disputes Act. Moreover, initially the plaintiff

was aggrieved by the transfer order and he himself resigned on

11.05.2015 but filed the suit for reinstatement. He was not

terminated from service but he himself resigned from the job at

the instance of the revision petitioners. Even then he filed suit

for reinstatement along with damages and other arrears.

Therefore, the trial Court rightly dismissed the application and

this Court finds no reason to interfere with the same.

16. In the result, the civil revision petition is dismissed

confirming the order under challenge.

17. Miscellaneous Petitions, if any, pending in this revision

shall also dismissed in the light of this final order.

____________________ P.SREE SUDHA, J.

13th JULY, 2022.

PGS