Supreme Court of India
BIHAR STATE ELECTRICITY BOARD & ANR.versusRAM DEO PRASAD SINGH & ORS.
- Citation
- 2011 INSC 663
- Decided
- 8 September 2011
- Disposal
- Appeal(s) allowed
- Bench
- AFTAB ALAM
Holding
By operation of Section 89 of the Bihar Reorganisation Act, 2000, the pending appeal and suit were to be transferred to the appropriate court in Jharkhand, depriving the Patna courts of jurisdiction, and the civil suit was not maintainable as the dispute was an industrial one governed by the Industrial Disputes Act.
Summary
The respondents, former security guards of the Patratu Thermal Power Station, were dismissed in 1975 and filed a civil suit in Patna in 1979 seeking reinstatement, which the trial court allowed. The Bihar State Electricity Board appealed, and the appeal was heard by the Additional District Judge, Patna, and later by the Patna High Court, both of which upheld the decree. The Supreme Court held that, under Section 89 of the Bihar Reorganisation Act, 2000, the appeal and the suit pending on the appointed day of the state's bifurcation (15 November 2000) were required to be transferred to the appropriate court in Jharkhand, rendering the Patna courts without jurisdiction. Moreover, the Court found the suit itself unmaintainable because the respondents were workmen governed by the Industrial Disputes Act, 1947, and should have pursued an industrial dispute remedy. Consequently, the judgments of the lower courts were set aside and the suit dismissed.
Issues considered
- Whether the appeal pending before the Additional District Judge, Patna, after the Bihar Reorganisation Act, 2000 came into force, should be transferred to a court in Jharkhand under Section 89 and whether the Patna court retained jurisdiction.
- Whether the Patna High Court had jurisdiction to hear the second appeal arising from the suit.
- Whether the civil suit filed by the workmen was maintainable, given that the dispute fell within the ambit of the Industrial Disputes Act, 1947.
- Whether the decree of the trial court was enforceable after the Bihar State Electricity Board ceased to have authority over the Jharkhand territory post‑reorganisation.
Legislation cited
Subjects
jurisdictionstate bifurcationtransfer of pending proceedingsindustrial disputeworkmencivil suitlimitationreinstatementelectricity board
Judgment
[2011) 11 S.C.R. 249
BIHAR STATE ELECTRICITY BOARD & ANR. A
v.
RAM DEO PRASAD SINGH & ORS.
(Civil Appeal No. 7754 of 2011)
SEPTEMBER 08, 2011
B
[AFTAB ALAM AND R.M. LODHA, JJ.]
Bihar Reorganisation Act, 2000 - s. 89 - Transfer of
pending proceedings - Respondent working at Thermal
Power Station, Hazaribagh dismissed from service - Suit filed C
by respondent after four years before Munsif, Patna seeking
declaration that dismissal was bad and inoperative in law -
Suit allowed by the trial court - First appellate court by
judgment dated 18. 1. 2006 upheld the said order- Patna High
Court also upheld the order - On appeal, held: Suit filed by D
the respondent was not maintainable - On bifurcation of State
of Bihar with effect from 15. 11. 2000, the appointed date under
the Reorganisation Act, Thermal Power Station Hazaribagh
which was earlier part of State of Bihar, forms part of the newly
created State of Jharkhand - Transfer of proceedings in terms E
of s. 89 was to take place by operation of law - First appellate
court as also the Patna High Court had no jurisdiction to hear
and decide the matters - Patna High Court lost sight of fact
that it was affirming a decree that was no longer executable
in the State of Bihar- Jharkhand State Electricity Board came F
into existence on April 1, 2001 - Thereafter, Bihar State -
Electricity Board could not reinstate the respondents as
security guards at Thermal Power Station, Hazaribagh where
they were working at the time of dismissal- Respondent
working as sec·urity guard at the Thermal Power Station, G
Hazaribagh were workmen under the Industrial Disputes Act
- They could raise industrial disputes concerning their
dismissal from service - Thus, the judgment passed by first
appellate court as also Patna High Court was illegal and
without jurisdiction - Judgment and decree under challenge
249 H
250 SUPREME COURT REPORTS [2011] 11 S.C.R.
A are set aside and suit is dismissed - Industrial Disputes Act,
1947.
In the year 1975, respondents working as ·~ecurity
guards at Patratu Thermal Power Station, Hazaribagh,
8 were dismissed from service, on charges of misconduct.
After four years, the respondents filed a suit in the court
of Munsiff, Patna, seeking declarations that their
dismissal was bad, unconstitutional and inoperative in
law and they would be legally deemed to have continued
C in service. The trial court allowed. the suit. The appellants
filed an appeal and the Additional District Judge
dismissed the same by or~er dated 18.01.2006. The High
Court also dismissed the second appeal. Therefore, the
appellants filed the instant appeal.
D Allowing the appeal, the Court
HELD: 1.1 The district of Hazaribagh, where Patratu
Thermal Power Station is situated, was earlier part of the
State of Bihar but on bifurcation of the State with effect
E from November 15, 2000, the appointed date under the
Reorganisation Act it forms part of the newly created
State-Jharkhand. From a bare reading of Section 89 of the
Bihar Reorganisation Act, 2000, it is evident that on the
appointed date the appeal preferred against the judgment
F and decree passed by the Munsiff stood transferred to a
corresponding court in the State of Jharkhand. The
transfer of the appeal took place by operation of law and
the Additional District Judge, Patna was denuded of all
authority and jurisdiction to proceed with the matter or
to hear and decide the appeal. It follows equally that the
G Patna High Court had no jurisdiction to hear and decide
the second appeal arising from the suit. Thus, in view of
section 89 of the judgments of th.e High Court and the
first appellate court appear to be manifestly illegal and
without jurisdiction. [Para 4) [254-A-B; 255-C-E]
H
BIHAR STATE ELECTRICITY BOARD & ANR. v. RAM 251
DEO PRASAD SINGH & ORS.
1.2 The judgment passed by ' the first appellate court A
was illegal and without jurisdiction and the judgment and
order passed by the Patna High Court is equally without
jurisdiction. It is quite strange the High Court lost sight
of the fact that it was affirming a decree that was no
longer executable or enforceable in the State of Bihar. B
Section 62 of the Re-organisation Act contains
provisions relating to Bihar State Electricity Board
besides two other Corporations. In terms of sub-section
3 of section 62, Jharkhand State Electricity Board came
into existence on April 1, 2001. After that date it is no c
longer possible for the Bihar State Electricity Board to
reinstate the respondents as security guards at Patratu
Thermal Power Station where they were working at the
time of dismissal from service. Thus, the judgments
passed by the first appellate court and the High Court are 0
untenable in law and the decree passed by the trial court,
in the absence of Jharkhand State Electricity Board
having been impleaded as a defendant, is rendered non-
executable in the State of Bihar. [Paras 9, 10 and 11) [257-
• G-H; 258-H; 260-A-B]
E
1.3 The submission that the case may be transferred
to an appropriate court in the State of Jharkhand from the
stage of the first appeal against the judgment and decree
passed by the Munsiff, Patna, and before that court the
respondents might take steps for impleadment of the F
Jharkhand State Electricity Board as one of the
defendants cannot be accepted. [Para 12] [260-C-D]
1.4 The respondents were dismissed from service on
November 11, 1975. They filed the suit four years later at G
Patna and tried to overcome the bar of limitation by
pleading that they first came to know about their
dismissal from service when they went to collect their
wages in October, 1976. The Munslff strangely accepted
the plea. [Para 14] [260-E-F]
H
252 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 1.5 Before filing the suit at Patna, the respondents
had filed suits being title suit Nos. 65, 66, 67 and 72 of ·
1975 before the Munsiff, Hazaribagh. Those suits were
dismissed for default. Before the Patna court an objection
was raised on behalf of the defendants-appellants
B regarding the maintainability of the suit in terms of Order
9 Rule 4 of the Code of Civil Procedure. The plaints of the
suits filed at Hazaribagh were produced before the Patna
court but the objection was overruled on the ground that
the Board omitted to get the plaintiffs' signatures on the
c plaints and vakalatnamas filed before the Hazaribagh
court formally proved. [Para 15) [260-G-H; 261-A]
1.6 The suit filed by the plaintiffs was itself not
maintainable. The respondents worked as security
guards at the Thermal Power Station, they were,
D therefore, workmen within the meaning of the Industrial
Disputes Act, 1947 and their service conditions were
governed by the standing orders framed under the
Industrial Establishment (Standing Orders) Act, 1946 and
the relevant rules framed by the Board. Therefore, it was
E open to the respondents to raise an industrial dispute
concerning their dismissal from service. [Para 16) [261-
B-C]
The Premier Automobiles Ltd. v. Kamlekar Shantaram
F Wadke ofBombay and Ors. (1976) 1 SCC 496: 1976 (1) SCR
427 - referred to.
1.7 The respondents' suitwas itself not maintainable.
The judgments and decree coming under challenge are
set aside and ·the suit filed by the respondents is
G dismissed. [Paras 17 and 18) [262-E-F]
Case Law Reference:
1976 (1) SCR 427 Referred to Para 16
' .
CIVIL APPELLATE JURISDICJJON : Civil Appeal No.
H 7754 of 2011'. --
BIHAR STATE ELECTRICITY BOARD & ANR. v. RAM 253
DEO PRASAD SINGH & ORS.
From the Judgment and Order dated 22.09.2008 of the A
High Court of Patna in SA No. 97 of 2006.
Navin Prakash for the Appellants.
S.B. Sanyal, Subhro Sanyal, Gopal Prasad, Rajiv Shankar
Dvivedi and Praveen Kr. Singh for the Respondents. B
The Judgment of the Court of was delivered by
AFTAB ALAM, J. 1. Leave granted.
2. The appellants, Bihar State Electricity Board and its C
Chairman were the defendants in a suit filed by respondents 1
to 8, the plaintiffs. The respondents were the workmen of the
Board and at the material time, i.e., in the year 1974 they were
working as security guards at Patratu Thermal Power Station,
Hazaribagh. They were proceeded against on certain charges D
of misconduct. In the domestic enquiry the charges were
established and on the basis of the findings of the domestic
enquiry, they were dismissed from service .on November 11,
1975. After 4 years of dismissal from service they filed a suit
(T.S. No. 95/1979) in the court of Munsiff V, Patna, seeking E
declarations that their dismissal was bad, unconstitutional and
inoperative in law and they would be legally deemed to have
continued in service.
3. The trial court allowed the suit by judgment and decree
F
dated August 29, 1981. The appeal preferred by the appellants
against the judgment and decree passed by the trial court (Title
Appeal No. 147 of 1981/62/2004) was dismissed by the
Additional District Judge, fast track court No. 2, Patna, by
judgment dated January 18, 2006. The appellants, then, brought G
the matter before the __High Court in second appeal (SA No. 97
of 2006) but this too was dismissed by judgment and order
dated September 22, 2008. The appellants are now before this
Court assailing the judgments and decree passed against
them.
H
254 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 4. In view of section 89 of the Bihar Reorganisation Act,
2000 the judgments of the High Court and the first appellate
court appear to be manifestly illegal and without jurisdiction. It
may be noted that the district of Hazaribagh, where Patratu
Thermal Power Station is situated, was earlier part of the State
B of Bihar but on bifurcation of the State with effect from
November 15, 2000, the appointed date under the
Reorganisation Act it forms part of the newly created State-
Jharkhand. Section 89 of the Reorganisation Act dealing with
transfer of pending proceedings provides as follows -
c "89."Transfer of pending proceedings -
(1) Every proceeding pending immediately before the
appointed day before the court (other than the High
Court), tribunal, authority or officer in any area which
D on that day falls within the State of Bihar shall, if it
is a proceeding relating exclusively to the territory,
which as from that day is the territory of Jharkhand
State, stand transferred to the corresponding court,
tribunal, authority or officer of that State.
E
(2) If any question arises as to whether any proceeding
should stand transferred under sub-section (1 ), it
shall be referred to the High Court at Patna and the
decision of that High Court shall be final.
F (3) In this section, -
(a) "proceeding" includes any suit, case or
. appeal; and
(b) "corresponding court, tribunal authority or
G officer" in the State of Jharkhand means, -
(i) the court, tribunal, authority or officer in
which, or before whom, the proceeding
would have laid if it had been instituted after
H the appointed day; or
BIHAR STATE ELECTRICITY BOARD & ANR. v. RAM 255
DEO PRASAD SINGH & ORS. [AFTAB ALAM, J.]
(ii) in case of doubt, such court, tribunal, A
authority, or officer in that State, as may be
determined after the appointed day by the
Government of that State or the Central
Government, as the case may be, or before
the appointed day by the Government of the s
existing State of Bihar to be the
corresponding court, tribunal, authority or
officer."
(emphasis added) c
From a bare reading of section 89 of the Act, it is evident that
on the appointed date the appeal preferred against the
judgment and decree passed by the Munsiff stood transferred
to a corresponding court in the State of Jharkhand. The
transfer of the appeal took place by operation of law and the D
Additional District Judge, Patna was denuded of all authority
and jurisdiction to proceed with the matter or to hear and decide
the appeal. It follows equally that the Patna High Court had no
jurisdiction to hear and decide the second appeal arising from
the suit. E
5. From the judgment of the Patna High Court it appears
that one of the three substantial questions of law arising in the
second appeal related to the question of jurisdiction of the first
appellate court to hear the appeal and the question was framed
F
as follows: -
"3. Whether the lower appellate court had the jurisdiction
to hear the title appeal after coming into force of the Bihar
Re-organisation Act, 2000?
G
6. The High Court answered the question in the negative,
but in doing so it sought to side-step section 89 of the Re-
organisation Act in curious ways. In paragraphs 9 and 10 of
the judgment it held and observed as follows: -
"9. It is not in dispute that when the title suit was filed the H
256 SUPREME COURT REPORTS [2011] 11 S.C.R.
A said Act had not come into force and even when the title
appeal was filed in the year 1981 the said Act was not in
force and the said Act came into force in the year 2000
and it was made effective from 15.11.2000 much after the
title appeal had been admitted and was pending for
B · hearing. Furthermore, there was an issue before the trial
court with respect to the jurisdiction of the court to try the
suit as objection was raised by the defendants that the suit
should have been filed at Hazaribagh and the said issue
was framed as issue no. (iv) but the same was not pressed
c by the defendants before the trial court and hence it
appears to have been conceded by them that the court at
Patna had jurisdiction to try the suit.
10. Section 89 of the Act specifically provides that a suit
or an appeal pending in the territory of reorganised State
D of Bihar would stand transferred to the State of Jharkhand
if the subject matter of the suit falls within the State of
Jharkhand. But it is also provided that if any question
arises as to whether it shall be referred to Patna High
Court and decision of that High Court shall be final.
E However, in the instant case it is quite apparent that the
title appeal remained pending for about four years after
coming into force of the aforesaid Act but the defendants
who were the appellants in that Court never raised any such
question with regard to the jurisdiction of the Court nor any
F such matter was ever referred to the High Court at Patna
as per the said provisions of Law. Hence, in these
circumstances the learned court of appeal below was quite
justified in hearing the said title appeal and deciding it on
merits."
G
7. The High Court is wrong on all scores. The fact that the
appeal against the judgment and decree passed by the Munsiff
was filed before the bifurcation of the State and on the
appointed date (November 15, 2000) the appeal was already
pending before the Additional District Judge has no bearing
H
BIHAR STATE ELECTRICITY BOARD & ANR. v. RAM 257
DEO PRASAD SINGH & ORS. [AFTAB ALAM. J.] ·
on the issue. Section 89 relates to proceedings pending on the A
appointed date and not to proceeding that might be filed after
that date. Secondly, the objection in regard to the territorial
jurisdiction, raised before the trial court was in an altogether
different context. The objection before the trial court was based
on the ground that the plaintiffs-workmen were working at B
Patratu Thermal Power Station and their dismissal had taken
place there. The cause of action having arisen at Patratu, the
suit ought to have been filed before a court under whose
territorial jurisdiction Patratu Thermal Power Station is situate.
The objection was not pressed before the trial court presumably c
because the head office of the Board being at Patna it was
believed that the plaintiffs could file the suit at Patna as well.
But the objection taken before the Munsiff, whether pressed or
given up, could have no bearing on the- transfer of the
proceedings on the bifurcation of the State in terms of section D
89 of the Reorganisation Act.
8. The third ground given by the High Court that the
defendants who were the appellants before the Additional
District Judge never raised the question with regard to the
jurisdiction of the court nor any such question was referred to E
tbe Patna High Court for its decision, is equally misconceived
and untenable. As noted above, the transfer of the proceedings
in terms of section 89 of the Act is to take place by operation
of law and is not dependant upon any objection raised by any
of the two sides. F
9. In light of the above, it must be held that the judgment
passed by the first appellate court was illegal and without
jurisdiction and equally without jurisdiction is the judgment and
order passed by the Patna High Court.
G
10. Further, quite strangely the High Court lost sight of the
fact that it was affirming a decree that was no longer executable
or enforceable in the State of Bihar. Section 62 of the
Reorganisation Act contains provisions relating to Bihar State
Electricity Board besides two other Corporations and in so far H
258 SUPREME COURT REPORTS (2011] 11 S.C.R.
A as relevant for the present provides as under: -
"62. Provisions as to Bihar State Electricity Board, State
Warehousing Corporation and State Road Transport
Corporation.-
B (1) The following bodies corporate constituted for the
existing State of Bihar, namely:-
(a) the State Electricity Board constituted under the
Electricity Supply Act, 1948 (54 of 1948);
c (b) the State Warehousing Corporation established
under the Warehousing Corporations Act, 1962 (58
of 1962);
'(c) the State Road Transport Corporation
D established under the Road Transport Act, 1950
(64 of 1950),
shall, on and from the appointed day, continue to function
in those areas in respect of which they were functioning
E immediately before that day, subject to the provisions of
this section and to such directions as may, from time to
time, be issued by the Central Government. ·
(2) Any directions issued by the Central Government
under sub-section ( 1) in respect of the Board or the
F Corporation shall include a direction that the Act
under which the Board or the Corporation was
constituted shall, in its application to that Board or
Corporation, have effect subject to such exceptions
and modifications as the Central Government thinks
G fit.
(3) The Board or the Corporation referred to in sub-
section (1) shall cease to function as from, and shall
be deemed to be dissolved on such date as the
H Central Government may, by order, appoint; and
BIHAR STATE ELECTRICITY BOARD & ANR. v. RAM 259
DEO PRASAD SINGH & ORS. [AFTAB ALAM, J.]
upon such dissolution, its assets, rights and A
liabilities shall tie apportioned between the
successor States of Bihar and Jharkhand in such
manner as may be agreed upon between them
within one year of the dissolution of the Board or
the Corporation, as the case may be, or if no B
agreement is reached, in such manner as the
Central Government may; by order, determine:
Provided that any liabilities of the said Board relating
to the unpaid dues of the coal supplied to the Board by
any public sector coal company shall be provisionally C
apportioned between the State Electricity Boards
constituted respectively in the successor States of the
existing State of Bihar or after the date appointed for the
dissolution of the Board under this sub-section in such
manner as may be agreed upon between the Governments D
of the successor States within one month of such
dissolution or if no agreement is reached, in such manner
as the Central Government may, by order, determine
subject to reconciliation and finalisation of the liabilities
which shall be completed within three months from the date E
of such dissolution by the mutual agreement between the
successor States or failing such agreement by the
direction of the Central Government:
Provided further that an interest at the rate of two per F
cent higher than the Cash Credit interest shall be paid on
outstanding unpaid dues of the coal supplied to the Board
by the public sector coal company till the liquidation of such
dues by the concerned State Electricity Board constituted
in the successor States on or after the date appointed for G
the dissolution of the Board under this sub-section.
"
In terms of sub-section 3 of section 62, Jharkhand State
Electricity Board came into existence on April 1, 2001. After H
260 SUPREME COURT REPORTS [2011] 11 S.C.R.
A that date it is no longer possible for the Bihar State Electricity
Board to reinstate the respondents as security guards at Patratu
Thermal Power Station where they were working at the time of
dismissal from service.
B 11. Thus, looked at from any angle, the judgments passed
by the first appellate court and the High Court are untenable in
law and the decree passed by the trial court, in the absence of
Jharkhand State Electricity Board having been impleaded as
a defendant, is rendered non-executable in the State of Bihar.
C ·12, Mr. S.B. Sanyal, learned senior advocate, appearing
for the plaintiffs-respondents, submitted that the case may be
transferred to an appropriate court in the State of Jharkhand
from the stage of the first appeal against the judgment and
decree passed by the Munsiff, Patna. And before that court the
D plaintiffs-respo!)Pents might take steps for impleadment of the
Jharkhand State Electricity Board as one of the defendants.
13. We are completely disinclined to take that course for
the following reasons.
E 14. It may be recalled that the respondents were dismissed
from service on November 11, 1975. They filed the suit four
years later at Patna and tried to overcome the bar of limitation
by pleading that they first came to know about their dismissal
from service when they went to collect their wages in October,
F 1976. The Munsiff strangely accepted the plea.
15. Secondly, before filing the suit at Patna, they had filed
suits being title suit Nos. 65, 66, 67 and 72of1975 before the
Munsiff, Hazaribagh. Those suits were dismissed for default.
G Before the Patna court an objection was raised on behalf of
the defendants-appellants regarding the maintainability of the
suit in terms of Order 9 Rule '4 of the Code of Civil Procedure.
The plaints of the suits filed at Hazaribagh were produced
before the Patna court but the objection was overruled on the
H ground that the Board omitted to get the plaintiffs' signatures
I
BIHAR STATE ELECTRICITY BOARD & ANR. v. RAM 261
DEO PRASAD SINGH & ORS. [AFTAB ALAM, J.]
on the plaints and vakalatnamas filed before the Hazaribagh A
court formally proved.
16. Thirdly and most importantly the suit filed by the
plaintiffs was itself not maintainable. It may be recalled that
plaintiffs worked as security guards at the Thermal Power
B
Station, they were, therefore, without doubt workmen within the
meaning of the Industrial Disputes Act, 1947 and their service
conditions were governed by the standing orders framed under
the Industrial Establishment (Standing Orders) Act, 1946 and
the relevant rules framed by the Board. It was, therefore, open
to the respondents to raise an industrial dispute concerning C
their dismissal from service. A suit seeking reinstatement was
therefore clearly barred and not maintainable. The issue stands
settled by the decision of this Court in The Premier
Automobiles Ltd. v. Kamlekar Shantaram Wadke of Bombay
and Others, (1976) 1 SCC 496. In paragraphs 23 and 24 of D
the judgment this Court held as follows: :--
"23. To sum up, the principles applicable to the jurisdiction
of the Civil Court in relation to an industrial dispute may
be stated thus: E
(i) 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.
(ii) If the dispute is an industrial dispute arising out of a F
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. G
(iii) 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.
H
262 SUPREME cduRT REPORTS (2011] 11 S.C.R.
A (iv) 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.
B 24. We may, however, in relation to principle No. 2 stated
above hasten to add that there will hardly be a dispute
which will be an industrial dispute within the meaning of
Section 2(k) of the Act and yet will be one arising out of a
right or liability under the general or common law only and
not under the Act. Such a contingency, for example, may
c arise in regard to the dismissal of an unsponsored
workman which in view of the provision of law contained
in Section 2A of the Act will be an industrial dispute even
though it may otherwise be an individual dispute. Civil
Courts, therefore, will have hardly an occasion to deal with
D the type of cases falling under principle No. 2. Cases of
industrial disputes by and large, almost invariably, are
bound to be covered by principle No. 3 stated above."
17. We, thus, come to the inescapable conclusion that the
E plaintiffs-respondents' suit was itself not maintainable and was
liable to be dismissed.
18. For the reasons discussed above the appeal is
allowed. The judgments and decree coming under challenge
F are set aside and the suit filed by the plaintiffs-respondents is
dismissed.
19. In the facts of the case there will be no order as to
costs.
G N.J. Appeal allowed.
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