TaxTMI 
TaxTMI 
TaxTMI 
2009 (2) TMI 807
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....tion against the respondents herein. The suits were filed by the respondents, inter alia, on the premise that termination of their services was in violation of the principles of natural justice. 4. As this Court in this case at this juncture is only required to lay down a principle of law, it is not necessary to state the facts of the matter in detail. 5. Appellant - Corporation, indisputably, was constituted in terms of the provisions of Road Transport Corporations Act, 1950 (for short, "the 1950 Act"). By reason of the provision of Section 4 thereof, each Corporation is a body corporate having perpetual succession and a common seal and can in its own name sue and be sued. Section 45 of the 1950 Act provides for the Regulation making power, stating: "45. Power to make regulations.- (1) A Corporation may, with the previous sanction of the State Government, make regulations, not inconsistent with this Act and the rules made thereunder, for the administration of the affairs of the Corporation. (2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:- (a) the manner in which,....
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....e entitled to a fair hearing in the departmental proceeding. The common law principles of natural justice must also be complied with. Rules laid down in the statutory rules indisputably should be followed. In Narinder Mohan Arya vs. United India Insurance Co. Ltd. & ors. [(2006) 4 SCC 713], , this Court held: "26. In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angles. Despite limited jurisdiction a civil court, it was entitled to interfere in a case where the report of the Enquiry Officer is based on no evidence. In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it should keep in mind the following: (1) the enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry. [See State of Assam and Anr. v. Mahendra Kumar Das and Ors. [(1970) 1 SCC 709] (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice [See Khem Chand v. Union of Indi....
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..... It is also well settled that there is a presumption that a civil court will have jurisdiction and the ouster of civil court's jurisdiction is not to be readily inferred. A person taking a plea contra must establish the same. Even in a case where jurisdiction of a civil court is sought to be barred under a statute, the civil court can exercise its jurisdiction in respect of some matters particularly when the statutory authority or Tribunal acts without jurisdiction. 11. In Dhulabai vs. State of M. P. [(1968) 3 S.C.R. 662], this Court held as under: "(1) Where the statute gives a finality to the orders of the special tribunals the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the reme....
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....ployment or with the conditions of labour, of any persons;" The expression `workman' has been defined in clause (s) of Section 2 to mean any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person- (i) who in subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercise, either by the nature of the duties attached to the offic....
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.... (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 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." 16. The question came up for consideration again before a three Judge Bench of this Court in Krishna Kant (supra) wherein, inter alia, it was held: "29. Now let us examine the facts of the appeals before us in the light of the principles adumbrated Premier Automobiles. The first thing to be noticed is the basis upon which the plaintiffs-respondents have claimed the several reliefs in the suit. The basis is the violation of the certified ....
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....s was made. The only basis of the suit was violation of principles of natural justice. It was, 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 Sitaram Kashiram Konda v. Pigment Cakes and Chemicals Mfg. Co. 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 wa....
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....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 dis....
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....nd above the general law. Let us, however, proceed on the basis that the dicta laid down therein is correct. 17. A similar question, however, came up for consideration before a two-Judge Bench of this Court in Rajasthan State Road Transport Corporation & Ors. vs. Zakir Hussain [(2005) 7 SCC 447], wherein this Court following the seven-Judges Bench decision of this Court in A.R. Antulay vs. R.S. Nayak [(1988) 2 SCC 602] opined that if the court has no jurisdiction, it cannot be conferred by an order of the court. Therein the order of termination was a simpliciter one which was passed during the period of probation and, thus, did not entail any stigma or civil consequences visiting him. In the facts of the case, Krishna Kant (supra) was not followed, stating: "35. Learned counsel for the respondent placing strong reliance on the judgment in Rajasthan SRTC v. Krishna Kant submitted that since the decree has been passed by the trial court on 28- 7-1989 and the appeal filed by the Corporation was dismissed on 27-9-1989 which was pending prior to the judgment reported in Krishna Kant, the respondent is right in approaching the civil court. This contention has no force. This Court has....
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....hat the civil court has no jurisdiction, the consequences must follow. This view has been reiterated by this Court in the unreported [now reported in (2006) 1 SCC 59, infra] judgment in Khadarmal case. Therefore, it is not possible to accept this submission." 19. In view of somewhat different conclusions arrived at by this Court in different cases as noticed hereinbefore whereas the contention of Mr. Tapas Ray, learned Senior Counsel appearing on behalf of the appellant - Corporation is that despite the fact that the suits were instituted and decrees were passed prior to the date of pronouncement of judgment in Krishna Kant (supra), we should opine that the civil court had no jurisdiction and, thus, dismiss the suit; the contention of Ms. Aishwarya Bhati and other learned counsel appearing on behalf of the respondent is that as doctrine of prospective overruling was applied in Krishna Kant (supra) and furthermore as in this case the suit is based on the allegations of violation of principles of natural justice, this Court should not interfere with the decrees passed by the learned trial court. 20. Before us, however, the statutory Regulations framed by the appellant - Corporatio....
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....ight arising under the provisions of the Industrial Disputes Act or the sister laws and may relate to same or similar rights or different rights, or even may be based on common law right or contractual right. 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. 22. Appellant, as noticed hereinbefore, is a State within the meaning of Article 12 of the Constitution of India. If an act on its part is found to be wholly unreasonable or arbitrary, the same would be violative of Article 14 of the Constitution of India. In certain situations, even gross violation of the principles of natural justice has been held to come within the ambit of Article 14. {See also Satyavir Singh & ors. vs. Union of India & ors. [(1985) 4 SCC 252], Delhi Transport Corporation vs. D.T.C. Mazdoor Congress & ors. [1991 Supp (1) SCC 600], Union of India & Anr. vs. Tulsiram Patel [(1985) 3 SCC 398], Central Inland Water Transport Corporation Limited & Anr. vs. Brojo Nath Ganguly & Anr. [(1986) 3 SCC 156]} Any orde....
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....e and would otherwise be governed by Article 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. 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 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. In Praga Tools Corpn. Vs. C.A. Imanual [(1969) 1 SCC 585], it was held:- "6. ... Therefore, the condition precedent for the issue of mandamus is that there is in one claiming it a legal right to the ....
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....o the employees of the respondent shall prevail. xxx xxx xxx 33. For the purpose of this matter, we would proceed on the basis that the 1961 Act is a special statute vis-`-vis the 1973 Act and the Rules framed thereunder. But in the absence of any conflict in the provisions of the said Act, the conditions of service including those relating to recruitment as provided for in the 1973 Act and the 1987 Rules would apply. If by reason of the latter, the appointment is invalid, the same cannot be validated by taking recourse to regularisation. For the purpose of regularisation which would confer on the employee concerned a permanent status, there must exist a post. However, we may hasten to add that regularisation itself does not imply permanency. We have used the term keeping in view the provisions of the 1963 Rules." In M.P. Housing Board & Anr. vs. Manoj Shrivastava [2006(2) SCC 702], this Court almost in a situation of this nature where the appellant was constituted under a statute and the conditions of service of its employees were governed thereunder as also Certified Standing Order, held: "8. A person with a view to obtain the status of a "permanent employee" must be ap....
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.... harmless, though it may be a high-sounding expression; in so far as it attempts to reflect the old jus naturale, it is a confused and unwarranted transfer into the ethical sphere of a term employed for other distinctions; and, in so far as it is resorted to for other purposes, it is vacuous, so said LORD SHAW of Dunfermline in Local Government Board v. Arlidge [1915] AC 120 at p. 138 (HL). 27. The purpose of principles of natural justice is prevention of miscarriage of justice and hence the observance thereof is the pragmatic requirement of fair play in action. {See Sawai Singh vs. State of Rajasthan [(1986) 3 SCC 454], Narinder Mohan Arya vs. United India Insurance Co. Ltd. & ors. [(2006) 4 SCC 713]} 28. In a case where no enquiry has been conducted, there would be violation of the statutory Regulation as also the right of equality as contained in Article 14 of the Constitution of India. In such situation, a civil suit will be maintainable for the purpose of declaration that the termination of service was illegal and the consequences flowing therefrom. However, we may hasten to add if a suit is filed alleging violation of a right by a workman and a corresponding obligation on ....