TaxTMI 
TaxTMI 
2005 (8) TMI 730
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....n was paid to the respondent as per the rules of the Corporation vide Order No. 297. Against the order of termination, the respondent-plaintiff filed an appeal before the appellate authority, which was dismissed on 22.10.1984. The respondent filed a suit for declaration in the Court of Additional Munsiff, Jaipur alleging that the order of termination dated 08.05.1984 and the order of the appellate Authority dated 22.10.1984 being illegal, bad in law and against the principles of natural justice and, therefore, is liable to be set aside and that the respondent- plaintiff is entitled to continue in service without any break. It was further alleged that the services of the respondent were terminated simpliciter but in fact, the same were terminated on the basis of the remarks made by the checking staff on 01.05.1984 when the respondent was on duty. The trial Court framed four issues. Issue No. 2 relates to the jurisdiction of the Civil Court to entertain and try the suit. The trial Court held that since the services of the respondent have been terminated on the basis of the remarks without holding any enquiry, the order dated 08.05.1984 terminating the services of the respondent....
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....ere terminated during the period of probation; it was not obligatory on the part of the Corporation to hold an enquiry before terminating the services; 6. That the respondent was only an employee of the Corporation and not a Government servant and has got no protection under Article 311 (2) of the Constitution of India; 7. That the respondent was not entitled to back wages on the principle of 'No Work, No Pay'. 8. Mr. Anis Ahmed Khan, learned counsel for the respondent submitted that a notice dated 05.05.1984 was given to the respondent in which a remark for carrying 11 passengers without ticket was mentioned and that the appellant-Corporation neither conducted any departmental enquiry nor gave the respondent an opportunity of being heard. Thus the termination order was illegal, unlawful and contrary to the principles of natural justice. 9. He invited our attention to the relevant discussion by the trial Court on this point. Citing the judgment of this Court in Rajasthan State Road Transport Corporation And Anr. Etc. v. Krishna Kant Etc. Etc. reported in [1995] 3 SCR 1118, learned counsel submitted that in the present case the decree in favour of the respondent ....
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....and that the respondent is entitled to continue on the post of the conductor and is entitled to get wages, allowances and other monetary benefits till the relief is given by the Corporation. The appointment order has been filed and marked as Annexure-P5. It is seen from the appointment order that the respondent and several others were appointed as conductors on probation for a period of two years subject to several conditions mentioned in the order of appointment. It is also mentioned that the services of the respondent will be governed by the Standing Orders of the Rajasthan State Road Transport Corporation, Workshop Employees. Two things are clear from the appointment order, (a) the order of appointment is purely on adhoc basis and (b) the respondent was appointed as a daily wage employee and that the probation is for a period of two years. 12. Premier Automobiles Limited vs. Kamlakar Shantaram Wadke and Ors., 1975 (2) LLJ 445 (Three Judges Bench) is a leading authority on jurisdiction of civil courts in industrial disputes. This Court, after elaborate discussion, held as under: "The principles applicable to the jurisdiction of the civil Courts in relation to an indus....
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....vil courts is excluded. It may be stated that from the point of view of the workmen also the remedy of adjudication available under the Act would be more beneficial to them than that of a civil suit inasmuch as the civil court cannot grant the relief of reinstatement which relief can be granted by the Labour Court/Industrial Tribunal. But in view of the constraint placed by the Order dated October 18, 1989 in SLP No. 9386 of 1988 passed by a two-Judge Bench of the Supreme Court it is appropriate that the matter be heard by a Bench of three-Judges." 14. Pursuant to the above order, all the appeals were placed before a Bench comprising of Three Judges. This Court summarized the principles flowing from the discussion made by them in Rajasthan State Road Transport Corporation And Anr. v. Krishna Kant and Others, reported in (1995) 5 SCC 75. "(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 th....
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....sed 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 expensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute." Applying the above principles, this Court held that the suits filed by the employees of the Corporation were not maintainable in law. However, considering the peculiar facts and circumstances of the case, this Court declined to set a....
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.... dispute and may not be read as a limitation on the Court's powers under Article 226, nevertheless it would need a very strong case indeed for the High Court to deviate from the principle that where a specific remedy is given by the statute, the person who insists upon such remedy can avail of the process as provided in that statute and in no other manner." It was further observed in paras 14, 15 and 17 as under: "It is an established practice that the Court exercising extraordinary jurisdiction under Article 226 should have refused to do so where there are disputed questions of fact. In the present case, the nature of the employment of the workmen was in dispute. This was an issue which should have been resolved on the basis of evidence led. The Division Bench erred in rejecting the appellant's submission summarily as also in placing the onus on the appellant to produce the appointment letters of the respondent workmen. There was also a dispute as to the nature of the absence of the respondent workmen. Significantly, the High Court has not relied upon the correspondence said to have been exchanged between the parties with regard to the demands raised b....
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....icer has discretion to proceed or not and that after his report the government may make a reference or not, the jurisdiction of civil court is not impliedly barred. The discretion cannot be exercised arbitrarily and there is remedy against improper refusal to exercise the discretion." 19. This Court further held that the Industrial Disputes Act not only confers the right on a worker for reinstatement and back wages if the order of termination or dismissal is not in accordance with the Standing Orders but also provides a detailed procedure and machinery for getting this relief. Under these circumstances, there is an apparent implied exclusion of the jurisdiction of the civil court. 20. The case of Rajasthan State Road Transport Corporation vs. Krishan Kant above was relied upon by this Court in the case of B.S. Bharti Vs. IBP Co. Ltd. reported in (2004) 7 SCC 550 and Chandrakant Tukaram Nikam and Ors. Vs. Municipal Corpn. of Ahmedabad and Anr. reported in (2002) 2 SCC 542 In B.S. Bharti vs. IBP Co. Ltd., (2004) 7 SCC 550, this Court held as under: "The appellant was a probationer in the employment of the respondent Company. At the end of his extended probation period,....
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....e within the meaning of Section 2(k) and under Section 17, every award of the Labour Court, Industrial Tribunal or National Tribunal is required to be published by the appropriate government within a period of thirty days from the date of its receipt and such award published under Section 17(1) is held to be final. Therefore, having regard to the relief sought for in the suits filed in the civil court, it has to be held that in such cases the jurisdiction of the civil court is impliedly barred and the appropriate forum for resolution of such dispute is the forum constituted under the Industrial Disputes Act." 22. It is a well settled principle of law as laid down by this Court that if the Court has no jurisdiction, the jurisdiction cannot be conferred by any order of Court. This Court in the case of A.R. Antulay vs. R.S. Nayak & Another reported in AIR 1988 SC 1531 paras 40 to 42 wherein it is, inter alia, held and observed as under:- "40 ..This Court, by its directions could not confer jurisdiction on the High Court of Bombay to try any case when it did not possess such jurisdiction ." 41. The power to create or enlarge jurisdiction is legislative in character....
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....ees Twenty-five Thousand only)." 25. Commodore Commanding, Southern Naval Area, Cochin vs. V.N. Rajan, AIR 1981 SC 965 (three Judges): This case deals with a temporary Government servant whose services were terminated on the ground of unsuitability for the post. This Court observed as follows:- "Where the decision to terminate the services of the servant had been taken at the highest level on the ground of unsuitability of the servant in relation to the post held by him and it was not by way of any punishment and no stigma was attached to him by reason of the termination of his services, termination could not be said to be vitiated for non-observance of Art. 311 (2)." 26. In State of Uttar Pradesh & Anr. vs. Kaushal Kishore Shukla, JT 1991 (1) SC 108, this Court has observed in para 6 as under: "The High Court held that the termination of respondent's services on the basis of adverse entry in the character roll was not in good faith and the punishment imposed on him was disproportionate. It is unfortunate that the High Court has not recorded any reasons for this conclusion. The respondent had earned an adverse entry and complaints were made against him w....
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....ion attracted the provisions of Article 311, when the appointing authority had the right to terminate the service without assigning any reasons. In such a case even if misconduct, negligence, inefficiency might be the motive or the inducing factor which influenced the employer to terminate the services of the employee a power which the employer undoubtedly possessed, even so as under the terms of appointment of the employee such a power flowed from the contract of service, termination of service could not be termed as penalty or punishment. Further adverse remarks in the assessment roll and recommendation therein to extend the probationary period could not be said to indicate that the intention of the appointing authority was to proceed against the employee by way of punishment." 29. Gujarat Steel Tubes Ltd. And Others vs. Gujarat Steel Tubes Mazdoor Sabha and Others, 1980 (2) SCC 593 (Three Judges) 30. The termination order in the instant case would clearly show that the misconduct on the part of the workman-respondent is not the foundation of the order of discharge. For an order to be 'founded' on misconduct, it must, be intended to have been passed by way of punish....
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....than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to an officer authorised in this behalf by the appropriate Government and the conciliation officer;" 33. The Act also provides for constitution of various committees and conferred extensive powers on different kinds of authorities in the matter of settlement of adjudication of industrial disputes. It also provide remedies under Section 10, 12, 18, 19 and 31(2), 33 (1) (a), 33C (1) and 33C (2). WHETHER THE ORDER OF TERMINATION IN THE PRESENT MATTER WHERE THE RESPONDENT WAS ON PROBATION CAN BE HELD TO BE INVALID? 34. The order of termination in the present case is termination simpliciter order and does not amount to any stigma. In this respect following cases are important: (i) This Court in the case of Champaklal Chimanlal Shah vs. The Union of India reported in AIR 1964 SC 1854 at page 1862 in para 13 has held and observed:- " ..The mere fact that some kind of preliminary enquiry is held against a temporary servant and following that enquiry the services are dispensed with in accorda....
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....ination of service .." (v) This Court in the case of Kunwar Arun Kumar vs. U.P. Hill Electronics Corporation Ltd. And Ors. reported in (1997) 2 SCC 191 at page 193 has held and observed as under:- " ..Under these circumstances, necessarily the appointing authority has to look into the performance of the work and duties during the period of probation and if they record a finding that during that probation period, the work and performance of the duties were unsatisfactory, they are entitled to terminate the service in terms of the letter of appointment without conducting any enquiry. That does not amount to any stigma .." (vi) This Court in the case of State of Punjab and Others vs. Bhagwan Singh reported in JT 2001 (Suppl.1) SC 7 in para 6 at page 9 has held and observed as under:- "6. Learned counsel for the respondent however, contended that the reference in the impugned order to the reports of the inspectors on the basis of which the above assessment was made, would itself amount to stigma. This again cannot be accepted. The said reference has also become necessary because the respondent was working under the said officers and it was their asse....
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....nterest to ascertain. In fact, the employer by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive." (vii) In the matter of Jagdish Mittar vs. Union of India reported in 1964 (1) LLJ 418, this Court has placed reliance on the judgment of Constitution Bench in the case reported in 1967 (1) LLJ 718, Benjamin (A.G.) vs. Union of India [Constitution Bench] and the judgment of Champaklal mentioned above. 35. It is settled law that where an Act creates an obligation and enforces the performance in a specified manner, the performance cannot be enforced in any other manner. It is seen from para 11 of the written statement that the management has subsequently raised the jurisdiction of the Civil Court in deciding an industrial dispute. Learned District Munsiff has also framed an i....