The Management Of Tamil Nadu ... vs T.

Venkatesan on 10 March, 1992

Madras High Court Madras High Court The Management Of Tamil Nadu ... vs T. Venkatesan on 10 March, 1992 Equivalent citations: (1992) 2 MLJ 435 Author: Srinivasan ORDER Srinivasan, J. 1. The question to be considered in these revision petitions is whether the City Civil Court, Madras, has got jurisdiction to entertain the suit filed by the respondent herein. The relevant facts are as follows: The respondent joined the service of first petitioner bank as a clerical apprentice in August, 1984 and he was appointed as a clerk in 1985 with effect from 22.1.1985. He was confirmed in service in February, 1986. He was working in Calcutta and transferred to Madras in July, 1989. By order dated 12.11.1990 he was transferred to Pannaipuram branch of the first petitioner. The Tamil Nadu Mercantile Bank Employees' Union raised an industrial dispute questioning the validity of the transfer. While the matter was pending before the Conciliation Authority, the respondent filed the suit O.S. No. 9867 of 1990 on 29.11.1990 in the City Civil Court, Madras for a declaration that the order of transfer dated 12.11.1990 is male fide, illegal and unjust and for consequential permanent injunction restraining the petitioners from transferring him from Madras to Pannaipuram. He also prayed for a permanent injunction directing the petitioners to allow him to continue at Madras. In the plaint, he alleged that he was the Vice-President of the Tamil Nadu Mercantile Bank Employees' Union and the Management was infuriated by the protest demonstrations organised by the Union. He referred to the show cause notice issued to him on 25.10.1990 for having organised protest demonstrations and his reply dated 3.11.1990. He stated in paragraph 8of the plaint as follows: ...In the second week of November, 1990 the plaintiff came to know that he was going to be transferred. Since the plaintiff had some organisational work in the Union regarding the grievances of members and had to discuss with the leaders of his affiliating Union, i.e., B.D.F.I., he went on leave. On the advice of affiliating Union Leaders, his union raised a dispute before the Regional Labour Commissioner (Central), Madras, on the harassment and victimisation of the employees of his union by the management on 20.11.1990. He proceeded to state that after the expiry of the leave, when he reported for work, the impugned order of transfer was served on him. He stated, "the plaintiff submits that the order of transfer of the plaintiff by the defendant bank is nothing but a clear act of victimisation and punishment for being active in the Union. The plaintiff submits that he has been victimised by the management by way of transfer for being an office-bearer of the union and taking active part in his union activities." He alleged that the action of the petitioners is mala fide and contrary to the transfer policy that a staff will not be transferred from one place to another before completion of three years. According to him, the transfer is a punishment transfer. On those averments, he prayed for the reliefs set out already. Along with the plaint, he filed eight documents. Document No. 5 is a copy of the letter from his Union to the Regional Labour Commissioner dated 20.11.1990 and document No. 8 is a letter from his Union to the second defendant dated 27.11.1990. 2. He filed I.A.No.22348 of 1990 for an interim injunction restraining the defendants from implementing the order of transfer dated 12.11.1990 and I.A.No.22349 of 1990 for an interim direction directing the second defendant to permit the respondent to work in his office pending disposal of the suit. 3. After service of summons and notice, the petitioners filed written statement in the suit and counter affidavit in the applications. They contested the maintainability of the suit in the civil court and contended that in view of the provisions of the Industrial Disputes Act, the civil court had no jurisdiction to entertain the suit. In paragraph 5 of the written statement, the following plea is raised:
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5. This defendant submits that in fact the Tamil Nadu Mercantile Bank Employees' Union of which the plaintiff is Vice-President has already raised an industrial dispute challenging his transfer before the Regional Commissioner of Labour (Central), Madras and the said industrial dispute is still pending before the said Conciliation Authority for consideration. The plaintiff having taken his grievance before the appropriate forum has been estopped from approaching this Hon'ble Court by way of a civil suit. Regarding para 8 of the plaint and document No. 5 to 8 filed along with, it would clearly establish that the plaintiffs union has taken up the dispute before the Regional Commissioner of Labour (Central) at Madras. The petitioners also denied the allegations of mala fide. 4. The 17th Assistant Judge, City Civil Court, Madras, who heard the applications, held that the civil court had jurisdiction to decide the dispute in the suit as it would not be governed by Section 25-T and item 7 of Schedule V of the Industrial Disputes Act. He also held that the order of transfer was vitiated by mala fides. On those findings he granted the prayers in both the petitions. Against the order in I.A.No.22348 of 1990, C.R.P.No.2269 of 1991 has been filed. Against the order in I.A.No.22349 of 1990, C.R.P.No.1531 of 1991 is filed. 5. Arguments were advanced in common to both the revisions, as the question involved in them is the same. According to learned Counsel for the petitioners, the dispute raised in the suit in one falling squarely within the provisions of the Industrial Disputes Act. It is submitted that though the plaintiff has not chosen to refer specifically to the relevant provisions of the Act, a perusal of the plaint disclosed that the complaint of the plaintiff is that the order of transfer tantamounts to unfair labour practice as defined by Section 2(ra) read with item 7 of the Fifth Schedule to the Act and prohibited by Section 25-T of the Act, Learned Counsel submits that the jurisdiction of the civil court is taken away by the provisions of the said Act and the said position has been recognised in the judgments of the Supreme Court and the High Courts including this Court. Per contra, learned Counsel for the respondent submits that the right agitated by the plaintiff in the suit is a common law right which was in existence even prior to the passing of the said Act and a suit to enforce the same is maintainable in a civil court as laid down by the Supreme Court. According to him, there is no error in the view taken by the Court below, either in law or on facts, and the revision petitions deserve a dismissal. 6. The question that arises for consideration is not res integra. Recently it had been considered in detail by S.T. Ramalingam, J. in T. Rajaiah v. Southern Roadways Ltd. (1991) 1 L.L.N. 453. The facts are almost similar and there also suits were instituted by workers challenging the orders of transfer. The learned Judge has held that civil court has no jurisdiction to entertain such suits. He agreed with the view taken by Malimath, C.J. in Kerala Rubber and Reclaims, Ltd. v. P.A. Sunny (1989) 1 L.L.N. 676, and held that the question of transfer would fall directly under item 7 of Fifth Schedule to the Industrial Disputes Act and the remedy of the aggrieved worker is only to approach the forum created under the Act. In that case also, there was initiation of proceedings under the Act for reference of the dispute to the Tribunal. The learned Judge held that the plaintiffs in that case having elected to initiate a proceeding under the Act, were not entitled to invoke the jurisdiction of the civil court. 7. Arguments have been advanced at length by learned Counsel for the plaintiff that the view taken by S.T. Ramalingam, J. is erroneous and the right of a worker to question an order of transfer is a common law right and not one created by the Industrial Disputes Act. According to learned Counsel, the judgment of the Supreme Court in Premier Automobiles, Ltd. v. Kamalakar Shantaram Wadke , has not been properly understood. 8. The question of exclusion of jurisdiction of civil courts by special enactments has been the subject of discussion in innumerable cases. In view of the importance of the question and the frequent recurrence of the same, the Apex Court discussed the matter in detail in Dhulabhai v. State of Madhya Pradesh , by a Bench of five Judges. The result was summarised and reduced to seven principles. It is not necessary for this case to repeat them here. Suffice it to refer to principles 1, 2 and 7, which read thus:
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(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 remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether the remedies normally associated with actions in civil courts are prescribed by the said statute or not. (7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply. 9. The question arose with particular reference to the Industrial Disputes Act in Premier Automobiles, Ltd. v. Kamalakar Shantaram Wadke . A Bench of three Judges summed up the principles as follows: (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 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. 10. It is the contention of the petitioners that the present case will fall under principles (3) and (4). The respondent urges that this case is governed by the second principle. An argument is advanced by learned Counsel for the petitioners that the second principle should be understood in the light of what is stated in the next paragraph in the same judgment and even if the present case is governed thereby, the suit is not maintainable in the civil court. It is also added that in any event, the respondent having elected to pursue the remedy under the Act is not entitled to approach the civil court for the reliefs of declaration and injunction. Learned Counsel for the respondent submits that the contention of the petitioners' counsel is based on a wrong understanding of the said judgment and the correct interpretation is found in the judgment of the Andhra Pradesh High Court in B.V. Rao v. Chittivalasa Jute Mills (1990) 1 L.L.J. 513. I do not think it necessary for the purpose of this case to decide that controversy in the view I propose to take in this matter. 11. I am of the view that the present case does not fall under the second principle enunciated by the Supreme Court in Premier Automobiles, Ltd. v. Kamalakar Shantaram Wadke . This is clearly one governed by principles (3) and (4). I do not agree with learned Counsel for the respondent that the right sought to be enforced in the suit is a common law right which existed even prior to the passing of the Industrial Disputes Act, A perusal of the plaint shows that the only ground on which the order of transfer is challenged is that it is a mala fide act of victimisation and punishment. It is not the case of the plaintiff that there is any violation of the terms of the contract of service. It is not in dispute that the order of appointment under which the
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The Management Of Tamil Nadu ... vs T. Venkatesan on 10 March, 1992

respondent entered in service with the petitioners contained a specific clause reading thus: You may be transferred to any section/department/branch of our establishment. It is not the case of the respondent that the said clause is in violation of any provision in the Contract Act or any other statute. This is not a case in which the respondent is seeking to enforce the contract between him and the petitioners; nor is it a case based on a breach of contract. No doubt, there is a passing reference in paragraph 12 of the plaint that the order of transfer is also contrary to the transfer policy i.e., a staff will not be transferred from one place to another before completion of three years. There is no averment in the plaint that the so-called transfer policy forms part of the contract between the plaintiff and the defendants. No such contention has been urged before me. On the other hand, the circular dated 4.7.1988 issued by the first defendant and produced as document No. 1 along with the plaint from which the so-called transfer policy is sought to be inferred is only to the effect that only those staff members who have completed total service of three years and above in the same branch are eligible to apply for transfer. The circular has nothing to do with a transfer by the management of its own on administrative grounds or for other reasons. The court below has also observed that the said circular cannot be treated as a term of the contract of service; but strangely proceeded to hold that because it is not a term of the contract, the order of transfer will not fall under Section 25-T or item (7) of the Fifth Schedule of the Industrial Disputes Act. The reasoning of the court below on that aspect of the matter is wholly unsustainable. 12. It is, thus, evident that the plaint is only on the footing that the order of transfer is a mala fide act of victimisation and, therefore, not sustainable. The law that prevailed before the advent of the Industrial Disputes Act which is described as the common law by learned Counsel for the respondent did not recognise any right in an employee to question an order of the employer falling strictly within the terms of the contract on the ground that it was a mala fide act of victimisation. It is only under the provisions of the Act such a right is created, if I may say so, by the Legislature enabling the workers to challenge orders of transfer made by the management. 13. Before the Industrial Disputes Act, was passed, there was no fetter on the power of the employer to transfer an employee when the terms of contract of employment expressly provided therefor. In fact, contracts of service were governed by the provisions of the Contract Act and the Specific Relief Act. It is too well-settled that a contract of personal service cannot ordinarily be specifically enforced and there are only three well-recognized exceptions to the rule; viz., (i) where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India, (ii) where a worker is sought to be reinstated on being dismissed, under' the industrial law, and (iii) where a statutory body acts in breach or violation of the mandatory provisions of the statute. See Vaish Degree College v. Lakshmi Narain A.I.R. 1976 S.C. 888. Learned Counsel for the respondent had submitted that the scope of the exceptions to the rule has been widened and the act of the employer can be questioned on the ground of mala fides by the employee under the general law too, without any reference to the Industrial law. In support of the said contention, he has placed reliance on the following rulings: (1) Grindlays Bank Employees' Union v. J. Kannan (1978) 1 L.L.J. 453; (2) Sitaram Kashiram Konda v. Pigment Cakes and Chemicals Manufacturing Company (1979) 2 L.L.J. 444; (3) Bharat Singh v. Management of New Delhi Tuberculosis Centre ; (4) Central Cooperative Bank Ltd. v. M. Parthasarathi (1988) 2 L.L.N. 107; (5) B.V. Rao v. Chittavalasa Jute Mills and Anr. (1990) 1 L.L.J. 513. 14. The first of the above cases related to the seniority of the employees. The suit was based on an agreement between the National and Grind-lays Bank Limitd and National and Grindlays Bank Employees Union at the time of merger of the Lloyds Bank with the National and Grindlays Bank. The suit was for enforcement of the terms of the agreement relating to the seniority of the employees. N.S. Ramaswamy, J. rejected the contention
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that the jurisdiction of the civil court was ousted by the Industrial Disputes Act on the ground that the right sought to be enforced in the suit was not one created under the Act and it was one arising under the general law or common law. That ruling will have no bearing on the present case. 15. In the second case referred to above, the plaintiff claimed a declaration that removal from service was illegal and prayed for reinstatement or in the alternative for compensation. The Supreme Court held that though the suit was not maintainable with reference to the main reliefs prayed for by the plaintiff, it was sustainable in so far as it related to payment of compensation. It is worthwhile extracting the following passage from the judgment: The correct position of law is that the main reliefs asked for by him which when granted will amount to specific performance of the contract of service and, therefore, they cannot be granted. There are a number of decisions of this Court to that effect; to wit (1) Dr. S.B. Dutt v. University of Delhi A.I.R. 1958 S.C. 1950 : 1959 S.C.R. 1236, (2) S.K. Tiwari v. District Board, Agra and (3) Indian Airlines Corporation v. Sukhdeo Raj (1971) 1 L.L.J. 496 : (1971) 41 F.J.R. 261;(1971) S.C.R. (Supp.)510. Reference may also be made in this connection to the decision of this Court in Premier Automobiles, Ltd. v. Kamalakar Shantaram Wadke . 4. But then in the alternative, the appellant had also prayed for awarding compensation to him. And reading the plaint as a whole, it can legitimately be culled out that he had made out a case, whether it was right on factor not, that is a different question, that he was wrongfully dismissed from service. This relief could be granted by the civil court if it found that the plaintiffs case was true. The High Court, in our opinion, is not right in saying that no such case had at all been made out in the plaint. In our opinion, as we have earlier said, reading the plaint at a whole, such case can be spelt out. That being so, to this limited extent, the matter could be examined by the civil court. That judgment does not help the respondent in the present case. 16. The third case cited is also a ruling of the Apex Court, but it is one relating to the interpretation of Section 17-B of the Industrial Disputes Act. The view taken by the High Court that the section would apply only to cases where the awards were passed after the commencement of the said section, was reversed and it was held that the section was only a recognition of a pre-existing right. Reliance is placed on the following passage in the judgment by learned Counsel for the respondent: That is not the case with Section 17-B. Here it is not the conferment of a new jurisdiction but the codification in statutory form of a right available to the workmen to get back wages when certain given conditions are satisfied. There are no words in the section to compel the court to hold that it cannot operate retrospectively. Before Section 17-B was introduced there was no bar for courts for awarding wages. Of course the workmen had no right to claim it. This section recognises such a right. To construe it in a manner detrimental to workmen would be to defeat its object. Learned Counsel wants to draw an analogy and submits that the provisions of Section 25-T and item (7) of Fifth Schedule of the Industrial Disputes Act are only in recognition of right which was already inherent in the worker. I do not agree. A right to challenge an order of transfer on the ground of mala fides or victimisation cannot be equated with the right to get wages during the pendency of a proceeding in a High Court or the Supreme Court by an employer against the award passed by a Labour Court, Tribunal or National Tribunal directing reinstatement of workman. The effect of Section 17-B of the Industrial Disputes Act is that though the reinstatement may be stayed by the higher court, the worker shall not be deprived of his wages, as it would cause undue hardship to him. There can be no comparison between the provisions of Section 17-B and Section 25-T of the Act. That ruling does not have any relevance in the present case.

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17. The next case cited was decided by me. The question was whether the suit challenging an order of suspension passed by the Special Officer of the Central Co-operative Bankwas not maintainable. The contention was that it was a suit to enforce specific performance of a contract of service and that the order of suspension was made pursuant on the direction of the Registrar of Co-operative Societies and the suit was barred by the provisions of the Co-operative Societies Act. I held that the facts of the case provided special circumstances which enabled the court to grant the specific relief prayed for by the plaintiff in enforcement of the contract of service. That judgment has no application to the facts of the present case, as I have already pointed out that the respondent is not seeking to enforce any term of the contract in the present suit. 18. The last of the cases referred to by learned Counsel is the judgment of a Division Bench of the Andhra Pradesh High Court referred to earlier by me in this judgment. The Bench had to dispose of two writ appeals and one Letters Patent Appeal arising out of the same dispute. The Letters Patent Appeal was from a suit for reinstatement in service with antecedent benefits or, in the alternative, for damages/compensation for wrongful termination. The, trial court granted a decree only for damaged, negativing the other prayers. Thereafter, the employee raised an industrial dispute, which was the subject matter of reference before the Labour Court. The Labour Court passed an award declaring that the dismissal of the employee was wrongful and he was entitled to reinstatement in service; but in view of the decree passed by the civil court, he was not entitled to backwages or other monetary benefits from the date of termination till the date of reinstatement. The award was challenged by both parties in the writ petitions. There was also an appeal by the employer against the decree for damages in the suit. The writ petitions and the appeal were disposed of together by a single Judge, who held that the employee having elected to approach the civil court, was estopped from invoking the remedies under the Act. The writ petition filed by the employee was dismissed and the other writ petition was allowed. The decree passed in the civil suit was also modified with regard to the quantum of damages. It was that decision which was challenged before the Division Bench. The Bench upheld the finding that the dismissal of the workman was wrongful and held that the employee having elected to institute a suit in a civil court and obtained a decree for the alternative relief claimed by him, was precluded from pursuing his remedies under the Act; but rejected the contention that inasmuch as the civil court had no power to grant reinstatement, the remedy under the Act was open in so far as the relief of reinstatement was concerned. However, the employee filed an affidavit seeking permission to withdraw the suit and that permission was granted by the Bench. Yet, when the writ appeals were disposed of, the employer prayed for awarding only compensation to the employee instead of directing reinstatement and the Bench accepted the suggestion. Ultimately, the court passed an order granting only compensation to the employee in lieu of reinstatement. 19. Though the judgment of the Bench is relied on by the learned Counsel for the respondent for the purpose of supporting his contention that the judgment of the Supreme Court in Premier Automobiles, Ltd. v. Kamalakar Shantaram Wadke , should be understood in a particular manner, in so far as principle No. 2 is concerned, as stated by me earlier I do not propose to decide that controversy, as it is not necessary for the purpose of this case. However, the judgment of the Bench is against the respondent inasmuch as it holds that an employee, who has elected his remedy by approaching one forum, is estopped from approaching the other forum in cases which are governed by the second principle enunciated by the Supreme Court in Premier Automobiles, Ltd. v. Kamalakar Shantaram Wadke . 20. In this case it is not in dispute that the Employees Union of which the plaintiff is the Vice-President, has already initiated proceedings under the Industrial Disputes Act. The copy of the letter written by the Union to the second defendant on 27.11.1990 has been placed before me. The relevant portion of the letter reads thus: With reference to the above, at the outset, we strongly protest the action of the management in venturing to transfer our Vice-President, Shri T. Venkatesan to our Pannaipuram branch, which act of the management is purely an act of victimising the above employee for his legitimate, lawful trade union activities. We hasten to bring to your attention that an Industrial Dispute, under the provisions of the Industrial Disputes Act, 1947 has been raised by our organisation with the Regional Labour Commissioner (Central) with regard
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to the above transfer. The Regional Labour Commissioner (Central) has fixed the meeting for conciliation and the same has been posted on 11.12.1990 at Madras. As the matter is seized under conciliation and as the conciliation process has been set in motion, in accordance with the provisions of the I.D. Act 1947, both the parties to the conciliation have to maintain 'status quo' without altering the positions prevailed prior to the conciliation process initiated. Hence we hope that the management would not venture to precipitate the matter till the conciliation proceedings are over and request you to maintain 'status quo'. 21. The respondent having initiated proceedings under the Act, is not entitled to maintain the suit in the civil court even if his case is governed by principle No. 2 formulated by the Supreme Court in Premier Automobiles, Ltd. v. Kamalakar Shantaram Wadke . Unfortunately, the court below has stated that the defendants had in the written statement admitted that the proceedings under the Act had come to an end and they were not pending. I am unable to find any such admission in the written statement. On the other hand, the relevant averments are made in paragraph 5 of the written statement, already extracted in this judgment. In any event, I am not resting my conclusion in this case op that aspect of the matter. I am of the view that the case falls under principles (3) and (4) formulated by the Supreme Court in Premier Automobiles, Ltd. v. Kamalakar Shantaram Wadke . 22. In Kerala Rubber and Reclaims, Ltd v. P.A. Sunny (1988) 73 F.J.R. 507, Malimath, C.J. has discussed the question in detail. In the case before him, the workman challenged an order of transfer on the ground that it was mala fide and the result of victimisation and unfair labour practice. After setting out the principles enunciated in Premier Automobiles, Ltd. v. Kamalakar Shantaram Wadke , the learned Judge observed: So far as the frame of the suit is concerned, the order of transfer is challenged on the ground that the transfer of the respondent by the petitioners is mala fide and the result of victimisation and unfair labour practice and is, therefore, illegal and unjust. It is not pleaded that the respondent is claiming any right recognised by the common law as such. Learned Counsel for the respondent was also not in a position to point out if the right claimed is recognised as a common law right. Common law does not recognise any limitation on the power of the master to transfer his employees on grounds of mala fides, victimisation or unfair labour practice.... But, after the Industrial Disputes Act was enacted, new rights and liabilities have been created restricting the unfettered common law rights of the master in dealing with the workmen in this behalf. The learned Judge proceeded to consider whether the Act created a right to challenge an order of transfer and whether machinery is provided for enforcing the said right under the Act. The questions were answered in the affirmative by the learned Judge and ultimately he held that the civil court had no jurisdiction to entertain the suit. I agree with the reasoning of the learned Judge. 23.1n Y. Mookan, Major v. Branch Manager, Southern Roadways Ltd. (1991) 1 L.L.J. 533, Hiremath, J. of the Karnataka High Court accepted and applied the ruling of the Kerala High Court in Kerala Rubber and Reclaims, Ltd. v. P.A. Sunny (1988) 73 F.J.R. 507, and held that the suit filed by the appellant before him questioning an order of transfer made by the employers was not maintainable in the civil court, as the court had no jurisdiction to deal with the same. 24. In Jitendra Nath Biswas v. Empire of India and Ceylon Tea Company (1983) 3 S.C.C. 582, the question was whether a suit filed by a dismissed employee challenging the validity of the order of dismissal was maintainable in view of the provisions of Section 14(1)(b) of the Special Relief Act. The Court held that the suit was not maintainable as there was no dispute that the Industrial Disputes Act was applicable to the case and the Industrial Employment (Standing Orders) Act was also applicable. It was jointed out that the main
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plea raised by the plaintiff was that the enquiry for misconduct held by the Management was not strictly in accordance with the Standing Orders. It was argued before the court that unless there was a reference by the Government of the Industrial Dispute to the Labour Court under the provisions of the Act, the jurisdiction of the civil court was not barred. That argument was negatived and it was observed that the Act not only conferred the right on a worker for reinstatement and back-wages if the order of termination or dismissal was not in accordance with the Standing Orders, but also provided a detailed procedure and machinery for getting the said relief. It was held that there was an apparent implied exclusion of the jurisdiction of the civil court. It was said, "it is, therefore, clear that the scheme of the Industrial Disputes Act clearly excludes the jurisdiction of the civil court by implication in respect of remedies which are available under this Act and for which a complete procedure and machinery has been provided in this Act." 25. There can be no doubt whatever that the judgment of ST. Ramalingam, in T. Rajaiah v. Southern Roadways Ltd. (1991) 1 L.L.N. 453, is in accord with the well settled principles of law and I have no reason to differ therefrom. I express my full concurrence with the same. 26. A similar ruling was given by S. Ramalingam, J. in Kumari Estate Workers' Union v. Modaik Easwari Estate, Ponmanai (1991) 2 L.L.J. 500. In that case, the workers, whose services were terminated, filed a suit seeking injunction restraining the management from interfering with their right of doing work. The suit was dismissed for default. An industrial dispute raised by the workmen regarding their non-employment was referred in the meanwhile for adjudication. Before the Labour Court, the management raised a preliminary objection that the reference was not maintainable as the workers had taken the matter to the civil court in the suit. That objection was upheld by the Labour Court and the workers filed a writ petition. Allowing the writ petition, the learned Judge held that the civil court had no jurisdiction whatever to entertain the dispute and the dismissal of the suit for default would have no effect on the reference validly made. The learned Judge has referred to the judgments of the Supreme Court in Premier Automobiles, Ltd. v. Kamalakar Shantaram Wadke and Jitendra Nath Biswas v. Empire of India and Ceylon Tea Company (1989) 2 L.L.J. 572. The ratio will apply to the present case also as a right created by the Act is sought to be enforced here too. 27. I have no hesitation to hold that the suit filed by the respondent in the City Civil Court, Madras, is not maintainable inasmuch as the court has no jurisdiction to entertain the same. 28. Though at the time of the arguments learned Counsel for the respondent did not raise any objection to the maintainability of the revision petitions, I put a question to learned Counsel for the petitioners as to how he filed these revisions in this Court, when the Code of Civil Procedure has provided an appeal against the order of the court below under Order 43, Rule 1(r) thereof/Learned Counsel for the petitioners has submitted that the order in I.A. No. 22349 of 1990 is one under Section 151 of the Code of Civil Procedure and not appeal able. As regards the other revision petition, it is-his contention that when the trial court has no jurisdiction whatever to entertain the suit, it is open to this Court to interfere under Section 115 of the Code of Civil Procedure with the interlocutory orders passed by the trial court, even if they are appealable. He places reliance on the judgment of this Court in S. Sundaram Pillai v. P. Govindasami , Indian Oxygen Ltd. v. Ganga Prasad (1990) 1 L.L.N. 115 and Southern Roadways Ltd. v. G. Palanikumar (1990) 1 L.L.N. 119. There is no doubt whatever that the trial Court has no jurisdiction to entertain the suit. Nor is there any doubt that C.R.P. No. 1531 of 1991 as against the order in I.A.No.22349 of 1990 is maintainable in this Court as the order in the said I.A. is not an appeal able one. It is not an order under Order 39, Code of Civil Procedure, but one under Section 151 of the Code of Civil Procedure. The question involved in both the revisions being the same, and the judgment of the court below in the two applications being the same, even if an appeal had been preferred by the defendants against the order in I.A.No.22348 of 1990 in the court of the Principle Judge, City Civil Court, Madras, I would have had it transferred to this Court suo motu to be heard along with C.R.P. No. 1531 of 1991. It is also open to me to exercise my power under Article 227 of the Constitution of India suo motu and call for the records in I.A. No. 22348 of 1990 and set aside the order made therein when it is found by me that the trial court has no jurisdiction to entertain the suit itself. Having come to the conclusion that the suit is unsustainable for want of jurisdiction in the court in C.R.P.No.1531 of 1991, which is undisputedly
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The Management Of Tamil Nadu ... vs T. Venkatesan on 10 March, 1992

maintainable in this Court, I do not think it necessary to decide whether the other revision petition viz., C.R.P.No.2269 of 1991 is maintainable or not. While taking note of the three, rulings referred to above to the effect that this Court can exercise its power under Section 115 of the Code of Civil Procedure when the trial court suffers from total lack of jurisdiction, I refrain from entering into any discussion and expressing my conclusive opinion on that question, as it is unnecessary in this case. For the purpose of this case, I prefer to accept the three rulings referred to above and hold that C.R.P.No.2269 of 1991 is also maintainable in this Court. 29. In the result, the civil revision petitions are allowed. The orders of the 17th Assistant Judge, City Civil Court, Madras, in I.A. Nos. 22348 and 22349 of 1990 are set aside. Both the applications are dismissed. The trial court is directed to dispose of the suit in the light of my finding that the civil court has no jurisdiction to entertain the suit. The respondent is not precluded from availing the remedies under the Industrial Disputes Act, if so advised. The parties are directed to bear their respective costs.

Indian Kanoon - http://indiankanoon.org/doc/1731789/