TaxTMI 
TaxTMI 
1995 (5) TMI 246
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....ge and High Court. When these appeals came up for hearing before a Bench of two learned Judges of this Court, the appellant Corporation relied upon the principles enunciated in Paragraphs 23 and 24 of the judgment in Premier Automobiles Limited etc. v. Kamlekar Shantaram Wadke of Bombay & Ors. etc. (1976 (1) S.C.C.496) and in particular upon the decision in Jitendra Nath Biswas v. M/s. Empire of India and Ceylone Tea Co. & Anr. (1989 (3) S.C.C.582). The Bench was of the opinion, agreeing with the decision in Jitendra Nath Biswas, that the Civil Court had no jurisdiction to entertain the present suits but in view of the order dated October 18, 1989 in S.L.P.(C) No.9386 of 1988 (rendered by two-Judge Bench of this Court) holding a civil suit concerning a similiar dispute to be maintainable, the Bench thought it appropriate that the appeals are heard by a Bench of three Judges. It is pursuant to their order dated September 23, 1993 that these appeals have been placed before this Bench. The appellant-Corporation has been constituted under the Road Transport Corporations Act, 1950. It is a statutory Corporation. Though Section 45 of the said Act empowers the Corporation to frame regul....
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....ciliation, from the date of notice of strike. A settlement arrived at in the course of conciliation proceedings will be binding for such periods as may be agreed upon by the parties and where no period has been agreed upon, for a period of one year, and will continue to be binding until revoked by a three months' notice by either party to the dispute." Section 2 defines certain expressions occurring in the Act. The expression "industrial dispute" is defined in clause (k) in the following words: "(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;" The expression "workman" is defined in clause (s), while the expression "employer" is defined in clause (g). Sections 4 to 7 provide for appointment/constitution of Conciliation Officers, Boards of Conciliation, Courts of Enquiry and Labour Courts while Sections 7-A and 7-B provide for constitution of Tribunals and National Tribunals. Section 9-A provides....
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....te while Section 19 provides for certain matters incidental thereto. Chapter- V prohibits strikes and lock-outs. Chapter - VA and Chapter V-B contain several provisions of a substantive nature regulating retrenchment and lay-off of workmen, closure of industrial establishments and other related matters. Chapter - VI deals with penalties. Section 29 provides that any person who commits a breach of any award which is binding upon him shall be punishable with imprisonment or with fine or with both as provided therein. Chapter-VII contains certain miscellaneous provisions. Section 33- C provides for recovery of money due from an employer to a workman in the manner provided thereby. The forum prescribed is the Labour Court. For the purpose of these appeals, it may not be necessary to refer to the five schedules appended to the Act. The Industrial Employment (Standing Orders) Act, 1946 was enacted by Parliament to require employers in industrial establishments to define formally the conditions of employment under them with sufficient precision and to make them known to the workers. The Act applies to every industrial establishment wherein 100 or more workers are employed or were employe....
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....sion. Sri Jitender Sharma, learned counsel for respondents-workmen submits that the certified Standing Orders have statutory force and their violation enables the Civil Court to decree reinstatement in service and that bar of Section 14 of the Specific Relief Act does not operate in such a case. He relies upon the holding in Sukhdev Singh v. Bhagat Ram (1975 (3) S.C.R.618). The appellant's counsel, however, dispute this proposition. Bereft of authority, we find it difficult to agree with Sri Sharma. The certified Standing Orders are not in the nature of delegated/subordinate legislation. It is true that the Act makes it obligatory upon the employer (of an industrial establishment to which the Act applies or is made applicable) to submit draft Standing Orders providing for the several matters prescribed in the Schedule to the Act and it also provides the procedure - inter alia, the certifying officer has to examine their fairness and reasonableness - for certification thereof. Yet it must be noted that these are conditions of service framed by the employer - the employer may be a private corporation, a firm or an individual and not necessarily a statutory Corporation - which are app....
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....ilar terms and conditions of service". In The Workmen of Dewan Tea Estate & Ors. v. The Management (1964 (5) S.C.R.548) the contention of the management was that Standing Order 8(a)(i), having been certified before insertion of the definition of "lay-off" by Section 2(kkk) in the Industrial Disputes Act, should be construed in the light of the said definition. While rejecting the said argument, Gajendragadkar,J. observed thus with respect to the nature of the Standing Orders: "It will be recalled that the Standing Orders which have been certified under the Standing Orders Act became part of the statutory terms and conditions of service between the industrial employer and his employees. Section 10(1) of the Standing Orders Act provides that the Standing Orders finally certified under this Act shall not, except on agreement between the employer and the workmen, be liable to modification until the expiry of six months from the date on which the Standing Orders or the last modification thereof came into operation. If the Standing Orders or the last modification thereof came into operation. If the Standing Orders thus become the part of the statutory terms and conditions of service, th....
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....anding orders have statutory force". It must, however, be said that in the decision rendered by Ramaswamy, J., the question as to the nature and character of the certified Standing Orders did not arise for consideration; the said observation was made in another context. The concensus of these decisions is: the certified Standing Orders constitute statutory terms and conditions of service. Though we have some reservations as to the basis of the above dicta as pointed out supra, we respectfully accept it both on the ground of stare decisis as well as judicial discipline. Even so, we are unable to say that they constitue "statutory provisions" within the meaning of the dicta in Sukhdev Singh where it was held: "The employees of these statutory bodies have a statutory status and they are entitled to declaration of being in employment when their dismissal or removal is in contravention of statutory provisions". Indeed, if it is held that certified Standing Orders constitute statutory provisions or have statutory force, a writ petition would also lie for their enforcement just as in the case of violatio....
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....tified Standing Orders as such, in case either the employer or the employee(s) entertain a doubt as to their meaning or their applicability. Probably it was thought that a decision of the appointed forum on the said question would itself facilitate the resolution of an industrial dispute, whether existing or apprehended. So far as the Labour Court, Industrial Tribunal or other adjudicatory bodies under the Industrial Disputes Act are concerned, it is agreed on hands - and we endorse it - that where a dispute is referred to any of them they are undoubtedly competent to go into and decide questions as to the application or interpretation of the certified Standing Orders insofar as they are necessary for a proper adjudication of the question or dispute referred. The scope of "Industrial Dispute". The expression "Industrial Dispute" is defined in Section 2(k) to mean any dispute or differeence (i) between employers and employers; (ii) between employers and workmen; and (iii) between workmen and workmen, provided such dispute is connected with the employment, non-employment, terms of employment or conditions of labour of any person. It is well settled by several decisions of this cour....
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....utes Act and where such dispute also amounts to an industrial dispute within the meaning of Industrial Disputes Act, whether the Civil Court's jurisdiction to entertain a suit with respect to such dispute is barred? To put it nearer to the facts of these appeals, the question can be posed thus: Where the dispute between the employer and the workman involves the recognition, application or enforcement of certified Standing Orders, is the jurisdiction of the Civil Court to entertain a suit with respect to such dispute is barred? This question involves the perennial problem concerning the jurisdiction of the Civil Court vis-a-vis Special Tribunals, a subject upon which the decisions of this Court, let alone other courts, is legion. We do not, however, propose to burden this judgment with all of them. We shall refer only to those which have dealt with the question in the context of Industrial Disputes Act. By way of introduction though, we may refer to the summary of principles enunciated in Dhulabhai v. State of M.P. (1968 (3) SCR 662 = AIR 1969 SC 78). They are the following: "(1) Where the statute gives a finality to the ....
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.... the civil court is not readily to be inferred unless the conditions above set down apply." Dhulabhai, it must be remembered, concerned a dispute arising under a sales tax enactment. Most of the decisions referred to therein concerned taxing enactments. Having regard to the facts of that case, therefore, it would fall under principle No.2 enunciated therein. Premier Automobiles was decided by a Bench comprising A. Alagiriswami, P.K. Goswami and N.L. Untwalia, JJ. The Court found that the dispute concerned therein involved adjudication of rights/obligations created by the Industrial Disputes Act which means that it fell under Principle No.2 in Dhulabhai. Even so, the Court considered several decisions, English and Indian, on the subject and enunciated the following principles in Paras 23 and 24: "23. To sum up, the principles applicable to the jurisdiction of the civil court in relation to an industrial dispute may be stated thus: (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 genera....
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....n unsponsored workman is an individual dispute and not an industrial dispute (unless of course, it is espoused by the Union of Workmen or a body of workmen) but Section 2-A has made it an industrial dispute. Because of this "civil courts will have hardly an occasion to deal with the type of cases falling under principle No.2". By and large, industrial disputes are bound to be covered by Principle No.3. (Principle No.3 says that where the dispute relates to the enforcement of a right or obligation created by the Act, the only remedy available is to get an adjudication under the Act.) Before we proceed to consider the effect and impact of Para 24 on Principle No.2 in Para 23, it would be appropriate to refer briefly to the decisions referred to in Para 26 of the said judgment. The Court approved the following decisions: (i) Krishnan v. East India Distilleries and Sugar Factories Ltd., Nellikuppam (1964 (1) L.L.J.217 : A.I.R.1964 Mad.81), a decision rendered by a Single Judge of the Madras High Court. It was held therein that "the jurisdiction of the civil court is ousted impliedly to try a case which could form subject-matter of an industrial dispute collectively between the workmen....
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....strial dispute which will fall under Principle No.2 and that almost all of them will fall under Principle No.3. This statement cannot be understood as saying that no industrial dispute can ever be entertained by or adjudicated upon by the Civil Courts. Such an understanding would not only make the statement of law in Principle No.2 wholly meaningless but would also run counter to the well-established principles on the subject. It must accordingly be held that the effect of Principle No.2 is in no manner whittled down by Para 24. At the same time, we must emphasise the policy of law underlying the Industrial Disputes Act and the host of enactments concerning the workmen made by Parliament and State legislatures. The whole idea has been to provide a speedy, inexpensive and effective forum for resolution of disputes arising between workmen and their employers. The idea has been to ensure that the workmen do not get caught in the labyrinth of Civil Courts with their layers upon layers of appeals and revisions and the elaborate procedural laws, which the workmen can ill afford. The procedures followed by Civil Courts, it was thought, would not facilitate a prompt and effective disposal ....
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....own for enforcement of the rights and liabilities created by them. Thus a dispute involving the enforcement of the rights and liabilities created by the certified Standing Orders has necessarily got to be adjudicated only in the forums created by the Industrial Disputes Act provided, of course, that such a dispute amounts to an industrial dispute within the meaning of Sections 2(k) and 2-A of Industrial Disputes Act or such enactment says that such dispute shall be either treated as an industrial dispute or shall be adjudicated by any of the forums created by the Industrial Disputes Act. The Civil Courts have no jurisdiction to entertain such suits. In other words, a dispute arising between the employer and the workman/workmen under, or for the enforcement of the Industrial Employment Standing Orders is an Industrial Dispute, if it satisfies the requirements of Section 2(k) and/or Section 2-A of the Industrial Disputes Act and must be adjudicated in the forums created by the Industrial Disputes Act alone. This would be so, even if the dispute raised or relief claimed is based partly upon certified Standing Orders and partly on general law of contract. But then it is argued that whi....
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....s,therefore, held that it was governed by Principle No.2 in Premier Automobiles. In this sense, this order cannot be said to lay down a proposition contrary to the one in Jitendra Nath Biswas. We may also refer to a decision of this Court rendered by Untwalia,J., on behalf of a Bench comprising himself and A.P.Sen,J., in S.K.Konde v. Pigment Lakes and Chemical Manufacturing Co. Private Ltd. (1979 (4) SCC 12). That was a case arising from a suit instituted by the workman for a declaration that termination of his service is illegal and for reinstatement. In the alternative, he claimed compensation for wrongful termination. The jurisdiction of the Civil Court was sustained by this Court on the ground that he has made out a case for awarding compensation though the Civil Court could not decree reinstatement. Though the report does not indicate the basis put forward by the workman-plaintiff therein, the Court found on an examination of all the facts and circumstances of the case that "it is not quite correct to say that the suit filed by the appellant is not maintainable at all in a civil court." Obviously it was a case where the dispute related to enforcement of rights flowing from gen....
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....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 the 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 Order) 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....