RAJASTHAN SRTC & ORSversusMOHAR SINGH

                            [2008] 6 S.C.R. 890


A                     RAJASTHAN SRTC & ORS
                                     II.
                             MOHAR SINGH
                    (Civil Appeal No. 2945 of 2008)
                             APRIL 24, 2008
B
              [S.B. SINHA AND P.P. NAOLEKAR, JJ.]

          Code of Civil Procedure, 1908 - s. 9:
           Jurisdiction of Civil Court - Scope and ambit of - In
C   respect of service! labour matters - Employer-Corporation
    created under a statute - Termination of employee - He filed
    civil suit challenging the same - Dispute raised by employer
    that the Civil Court had no jurisdiction to entertain the suit -
    Held: Civil Courts have jurisdiction to try all suits of civil nature
D   excepting suits of which their cognizance is either expressly
    or impliedly barred - If a right is claimed under the Industrial
    Disputes Act or the sister laws, jurisdiction of Civil Court would
    be barred, but if no such right is claimed, Civil Court will have
    ;urisdiction - On facts, employer-Corporation is a 'State' within
E   meaning of Art. 12 of the Constitution - If action on its part was
    violative of the Constitutional Provisions or mandatory
    requirements of a statute or statutory rules, the Civil Court had
    ;urisdiction to direct reinstatement of the concerned employee
    with full back wages - Constitution of India, 1950 - Arts. 12
F   and 14 - Industrial Disputes Act, 1947 - Road Corporation
    Act, 1951.
                                                                            "
       First Appellant is a statutory corporation constituted
  and incorporated under the Road Corporation Act, 1951.
  Respondent, driver of a bus employed by the Corporation,
G allegedly committed misconduct. Disciplinary
  proceedings were initiated and Respondent was found
  guilty, consequent to which he was dismissed from
  service with immediate effect. Appeal preferred by
  Respondent was dismissed by the Appellate authority.
H                              890
            RAJASTHAN SRTC & ORS. v. MOHAR SINGH                 891


              Respondent filed civil suit challenging the order of A
        termination as well as the order of the Appellate Authority.
        Trial Court decreed the suit holding that the orders
        impugned before it were illegal, bad in law and non-est
        being against the principles of natural justice. The order
        passed by the Civil Court was upheld by both the First 8
.,;._
        Appellate Court and the High Court.
              In appeal to this Court, the contention of Appellant is
        that in the facts and circumstances of the case, the Civil
        Court had no jurisdiction to entertain the suit.
                                                                        c
             Dismissing the appeal, the Court
             HELD: 1.1. S. 9, CPC provides that all Civil Courts
        shall have jurisdiction to try all suits of a civil nature
        excepting suits of which their cognizance is either
        expressly or impliedly barred. The jurisdiction of the Civil D
        Court apparently is not expressly barred by the provisions
        of Industrial Disputes Act, 1947. [Para 10] [895-F, G]
             1.2. Civil Court may have a limited jurisdiction in
        service matters but it cannot be said to have no
        jurisdiction at all to entertain a suit. It may not be entitled E
        to sit in appe;;il over the order passed in the disciplinary
        proceedings or on the quantum of punishment imposed.
        It may not in a given case direct reinstatement in service
        having regard to Section 14(1)(b) of the Specific Relief Act,
        1963 but, where the right is claimed by the plaintiff in terms F
        of common law or under a statute other than the one
        which created a new right for the first time and when a
        forum has also been created for enforcing the said right,
        the Civil Court shall also have jurisdiction to entertain a
        suit where the plaintiff claim benefit of a fundamental G
        right as adumbrated under Article 14 of the Constitution
        or mandatory provisions of statute or statutory rules
...     governing the terms and conditions of service. [Para 11]
        [895-H; 896-A, B, C]
                                                                        H
    892      SUPREME COURT REPORTS                [2008] 6 S.C.R.

                                                                    ~
A       1.3. A decision taken by the Disciplinary Authority
  under the Road Corporation Act, 1951 ordinarily would
  be a subject matter of suit. The Civil Court, however,
  exercises a limited jurisdiction. If however, the concerned
  employee is a 'workman' within the meaning of the
B provisions of the 1947 Act, he apart from the common law
  remedies, may take recourse to the remedies available             ....
  before an industrial court. When a right accrues under
  two statutes vis-a-vis the common law right, the
  concerned employee will have an option to chose his
c forum. Also, there is a distinction between a right which
  is conferred upon an employer under a statute for the first
  time and also providing for a remedy and the one which
  is created to determine the cases under the common law
  right. Only in -a case of the former, the Civil Court's
  jurisdiction may be held to be barred by necessary
D
  implication. The Courts ordinarily do not adopt an
  interpretation which takes away the jurisdiction of the             t
  Court. [Paras 12, 13, 14) (896-F-H; 89?-A; 898-D]
        1.4. If a right is claimed under the Industrial Disputes
E Act  or the sister laws, the jurisdiction of the Civil Court
  would be barred, but if no such right is claimed, civil court
  will have jurisdiction. [Para 20) (901-E]
       1.5. Appellant is a 'State' within the meaning of Article
  12 of the Constitution of India. It is created under a statute.
F As a State, it is bound to comply with the requirements of
  Article 14 of the Constitution of India as also other
  provisions of Part Ill of the Constitution. It is also bound
  to comply with the mandatory provisions of the statute or
  the regulations framed by it. It is also bound to follow the
G principles of natural justice. In the event, it is found that
  the action on the part of a State is violative of the
  Constitutional Provisions or the mandatory requirements
  of a statute or statutory rules, the Civil Court would have              t"

  the jurisdiction to direct reinstatement with full back
H wages.   (Paras Z1, 22) [901-F-H]
          RAJASTHAN SRTC & ORS. v. MOHAR SINGH                    893
                     [S.~. SINHA, J.)


'         The Premier Automobiles Ltd. v. Kamlakar Shantaram
      Wadke & Ors. AIR (1975) SC 2238 - relied on.
                                                                         A


           Rajasthan State Roadways Transport Corporation and
      Anr. v. Krishna Kant and Ors. (1995) 5 SCC 75; Rajasthan
      SRTC & Ors. vs Khadarmal, (2006) 1 SCC 59; Rajasthan
,._   State Road Transport Corporation & Ors. v. Zakir Hussain           B
      (2005) 7 SCC 447; State of UP v. Shatrughan Lal & Anr AIR
      (1998) SC 3038 and Praga Tools Corporation v. C. V /manual
      & Ors. AIR (1969) SC 1306 - referred to.
           Wolverhampton New Waterworks Co. v. Hawkesford                c
      (1859) 6 CB (NS) 336- referred to.
           Principles of Statutory Interpretation (11th Edition) by
      Justice G.P. Singh- referred to.
           CIVILAPPELLATE JURISDICTION: Civil Appeal No. 2945
                                                                         D
      of 2008.
           From the Judgment and Order dated 23.11.2005 of the
      High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur in
      S.B.C.S.A. No. 330/2000.
                                                                         E
           H.D. Thanvi, Afchana Mishra and Sushi! Kumar Jain for
      the Appellants.
           The Judgment of the Court was delivered by
           S.B. SINHA, J. 1. Leave granted.
                                                                         F
           2. First appellant (Corporation) is a statutory corporation
.•
      constituted and incorporated under the Road Corporation Act,
      1951. Respondent h~rein was a driver of a bus employed by
      the Corporation.
             3. On the charges of alle~,d commission of misconduct G
      on the part of the respondent. a disciplinary proceeding was
      initiated against him on or about 6.11".1982. The Enquiry Officer
      found him guilty of the said charges. By reason of an order dated
      31.5.1985, the disciplinary authority, upon considering the report
      of enquiry officer inflicted the punishment of dismissal from H
    894          SUPREME COURT REPORTS                  (2008] 6 S.C.R.


A   services on him with immediate effect. It was furthermore
    directed that he shall not be entitled to further wages save and
    except what has already been paid to him by way of subsistence
    allowance.
        4. An appeal preferred by him was dismissed by the
8   Appellate Authority by an order dated 16.6.1987.

          5. Respondent filed a civil suit in the Court Additional
    Munsif, Jaipur which was marked as Civil Suit No.632/88 (290/
    86). In his written statement, the appellant, inter alia, contended
c   that the Civil Court had no jurisdiction to entertain the suit. Some
    of the issues framed by the Civil Court were :
          "(1) Whether the order of termination No.1516 dated
               31.5.1985 and the order of the Appellate Authority
               dated 16.6.1987 are illegal and bad in law?
D
                 xxx                      xxx                     xx
          (3)    Whether the Court has got no jurisdiction to entertain
                 and try the suit?"

E        6. While determining issue No.1, the Trial Court, inter alia,
    held that the order of termination dated 31.5.1985 as also the
    order of the appellate authority were illegal, bad in law and
    against the principles of natural justice, opining :
          i)     The documents mentioned in the charge-sheet
F                whereupon the appellant relied, had not been supplied
                 to the respondent;
          ii)    He was not permitted to cross-examine the witnesses
                 examined on behalf of the department; and
G         iii)   The enquiry officer acted like a prosecutor.
          7. On the said findings, the suit was decreed, opining :
          "In the result, it is ordered that the suit of the plaintiff is   +
          decreed against the defendant declaring that the order
          No.1516 dated 31.5.1985 passed by the defendant and
H
         RAJASTHAN SRTC & ORS. v. MOHAR SINGH                       895
                    [S.B. SINHA, J.]

         the order of the Appellant Authority dated 16.6.1987 is           A
         held to be illegal, bad in law non est being against principle
         of natural justice and, therefore, is set aside. It is also
         declared that the plaintiff would be treated to be in
         continuous service of the defendant without any break and
         would also be entitled to receive all the monetary benefits       B
         as he would have been entitled has he been in continuous
         service."

          8. An appeal preferred thereagainst by the appellant was
    dismissed by the Additional District and Sessions Judge, Jaipur
    City by a judgment and order dated 5.5.2000. The High Court, C
    by reason of the impugned judgment has dismissed the second
    appeal filed by the appellant, holding that no substantial question
    of law arose for its consideration.
          9. Mr. Thanvi, learned counsel appearing on behalf of the
                                                                           0
    appellant, would submit .that the Civil Court, in the facts and
+   circumstances of this case, had no jurisdiction to entertain the
    suit.
         It was pointed out that as there exists conflict between two
    three Judge Bench decisions of this Court in Rajasthan State           E
    Roadways Transport Corporation & Anr. v. Krishna Kant & .Ors.
    [(1995) 5 SCC 75) and Rajasthan SRTC & Ors. v. Khadarma/
    [(2006) 1 SCC 59], a Division Bench of this Court in Civil Appeal
    No.3428 of 2005 referred the matter to a larger Bench.
          10. Section 9 of the Code of Civil Procedure provides that       F
    all Civil Courts shall have jurisdiction to try all suits of a civil
    nature excepting suits of which their cognizance is either
    expressly or impliedly barred.
         The jurisdiction of the Civil Court apparently is not expressly G
    barred by the provisions of Industrial Disputes Act, 1947.
          The question which arises for our consideration would be
    as to whether the same is barred by necessary implication.
         11. Civil Court may have a limited jurisdiction in service        H
    896      SUPREME COURT REPORTS                   (2008] 6 S.C.R.


A matters but it cannot be said to have no jurisdiction at all to
  entertain a suit. It may not be entitled to sit in appeal over the
  order passed in the disciplinary proceedings or on the quantum
  of punishment imposed. It may not in a given case direct
  reinstatement in service having regard to Section 14(1 )(b) of
B the Specific Relief Act, 1963 but, it is a trite law that where the
  right is claimed by the plaintiff in terms of common law or under
  a statute other than the one which created a new right for the
  first time and when a forum has also been created for enforcing
  the said right, the Civil Court shall also have jurisdiction to
C entertain a suit where the plaintiff claim benefit of a fundamental
  right as adumbrated under Article 14 of the Constitution of India
  or mandatory provisions of statute or statutory rules governing
  the terms and conditions of service.

        12. Under the industrial law, and in particular the 1947 Act,
D the authorities specified therein including the Appropriate
  Governments and the Industrial Courts have various functions
  to perform. Terms and conditions can be laid down thereunder.
  Violation of the terms and conditions of service at the hands of
  the employer is also justiciable. Safeguards have been provided
E under the Act to see that services of workmen are not unjustly
  terminated. The 1947 Act provides for a wider definition of
  'termination of service'. Conditions precedent for termination
  of service have been provided for thereunder.
        A decision taken by the Disciplinary Authority under the
F 1951 Act ordinarily would be a subject matter of suit. The Civil
  Court, however, as noticed hereinbefore exercises a limited           •
  jurisdiction. If however, the concerned employee is a 'workman'
  within the meaning of the provisions of the 194 7 Act, he apart
  from the common law remedies, may take recourse to the
G remedies available before an industrial court.
         When a right accrues under two statutes vis-'-vis the
    common law right, the concerned employee will have an option
    to chose his forum.
H         13. We must also notice the distinction between a right
    RAJASTHAN SRTC & ORS. v. MOHAR SINGH                       897
               [S.B. SINHA, J.]

which is conferred upon an employer under a statute for the first     A
time and also providing for a remedy and the one which is
created to determine the cases under the common law right.
Only in a case of the former, the Civil Court's jurisdiction may
be held to be barred by necessary implication.
      The question came up for consideration before a Three 8
Judge Bench of this Court in The Premier Automobiles Ltd. v.
Kamlakar Shantaram Wadke & Ors. [AIR 1975 SC 2238]. The
distinction as noticed hereinbefore, was noticed therein. The
Court extensively quoted from Wolverhampton New Wate1Works
Co. v. Hawkesford [(1859) 6 CB (NS) 336] as under :           C
     "There are three classes of cases in which a liability may
     be established by statute. There is that class where there
     is a liability existing at common law, and which is only re-
     enacted by the statute with a special form of remedy; there,
                                                                     0
     unless the statute contains words necessarily excluding
     the common law remedy, the plaintiff has his election of
     proceeding either under the statute or· at common law.
     Then there is a second class, which consists of those
     cases in which a statute has created a liability, but has E
     given no special remedy for it; there the party may adopt
     an action of debt or other remedy at common law to enforce
     it The third class is where the statute creates a liability not
     existing at common law, and gives also a particular remedy
     for enforcing it-.. "With respect to that class it has always
     been held, that the party must adopt the form of remedy F
     given by the statute."
    Having analysed the other ratio of decisions, it was
summed up:
     'To sum up, the principles applicable to the jurisdiction of G
     the Civil Court in relation to an industrial dispute may be
     stated thus :
     (1)   If the dispute is not an industrial dispute, nor does it
           relate to enforcement of any other right under the Act     H
    898         SUPREME COURT REPORTS                    [2008) 6 S.C.R.


A               and 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
B               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
c               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 VA then the
                remedy for its enforcement is either Section 33C or
D               the raising of an industrial dispute, as the case may
                be."                                                         -;.

          14. The said principle, in our opinion, should be applied in
    a case of this nature. The Courts ordinarily do not adopt an
    interpretation which takes away the jurisdiction of the Court.
E
         15. We may in this behalf profitably notice the following
    excerpts from the Principles of Statutory Interpretation (11th Edn)
    by Justice G.P. Singh :
          " 'It is a principle by no means to be whittled down' and
F         has been referred to as a "fundamental rule". As a
          necessary corollary of this rule provisions excluding
          jurisdiction of civil courts and provisions conferring
          jurisdiction on authorities and tribunals other than civil
          courts are strictly construed. The existence of jurisdiction
G         in civil courts to decide questions of civil nature being the
          general rule and exclusion being an exception, the burden
          of proof to show that jurisdiction is excluded in any particular
          case is on the party raising such a contention. The rule            ---
          that the exclusion of jurisdiction of civil court is not to be
H         readily inferred is based on the theory that civil courts are
         RAJASTHAN SRTC & ORS. v. MOHAR SINGH                        899
                    [S.B. SINHA, J.]

          courts of general jurisdiction and the people have a right, A
          unless expressly or impliedly debarred to insist for free
          access to the courts of general jurisdiction of the State.
          Indeed, the principle is not limited to civil courts alone, but
          applies to all courts of general jurisdiction including criminal
          courts. The rule as stated. above relating to strict B
          construction of provisions excluding jurisdiction of courts
          of general jurisdiction was recently expressly approved by
          the Supreme Court."
           16. In Krishna Kant (supra), this Court opined that where
     a dispute involves recognition of servant and enforcement of C
     rights and obligations created under the Industrial Disputes Act
     and/or its sister enactments such as Industrial Employees
     (Standing Orders) Act, the Civil Court will have no jurisdiction.
     Premier Automobiles (supra) was explained, stating :
                                                                             D
           "25. It is the Principle No. 2, and particularly the qualifying
           statements in para 24, that has given rise to good amount
           of controversy. According to Principle No. 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
           Industrial Disputes Act, the jurisdiction of the civil court is E
           alternative and it is left to the person concerned either to
           approach the civil court or to have recourse to the
           machinery provided by Industrial Disputes Act. But
           Principle No. 2 does not stand alone; it is qualified by
           para 24. Now what does para 24 say? It says (i) in view F
           of the definition of "industrial dispute" in the Industrial
           Disputes Act, there will hardly be an industrial dispute
           arising exclusively out of a right or liability under the general
           or common law. Most of the industrial disputes will be
           disputes arising out of a right or liability under the Act. (ii) G
           Dismissal of an unsponsored workman is an individual
           dispute and not an industrial dispute (unless of course, it
~~         is espoused by the union of workmen or a body of
           workmen) but Section 2-A has made it an industrial dispute.
           Because of this "civil courts will have hardly an occasion H
    900       SUPREME COURT REPORTS                    (2008] 6 S.C.R.


                                                                           t
A         to deal with the type of cases falling under Principle No.
          2". By and large, industrial disputes are bound to be
          covered by Principle No. 3. (Principle No. 3 says that
          where the dispute relates to the enforcement of a right or
          obligation created by the Act, the only remedy available is
B         to get an adjudication under the Act.)"

         However, in that case, this Court declined to set aside the
    decree which was the subject matter of the appeals.

          17. We are not concerned with such a situation here as
c   the same is not being claimed by the plaintiff on the basis of
    right arising either under the Industrial Disputes Act, 1947 or
    Industrial Employees (Standing Orders) Act, 1946.

          We may also notice that in Rajasthan State Road
    Transport Corporation & Ors. v. Zakir Hussain ((2005) 7 SCC
D   447], whereupon the learned counsel also replied on, this Court
    noticed Krishna Kant (Supra), but in paragraph 32 of the
    judgment having regard to object of the Industrial Disputes Act
    held that the termination of the workman concerned was a
    simpliciter one and did not contain any stigma and, thus, the
E   law does not require holding of any enquiry before terminating
    the services of the employee being not on the ground of any
    misconduct.

         It was held that the Civil Court has no jurisdiction as the
    Management was fully entitled to terminate the services of the
F   probationary officer during the period of probation, if his services
    were not found to be satisfactory.

         18. However, this Court in State of UP v. Shatrughan Lal
    & Anr. (AIR 1998 SC 3038], opined that where copies of the
G statement of the witnesses were not supplied to the delinquent
  employee, the same would constitute violation of the principles
  of natural justice, stating :

          "It has also been found that during the course of the
          preliminary enquiry, a number of witnesses were examined
H         against the respondent in his absence, and rightly so, as
            RAJASTHAN SRTC & ORS. v. MOHAR SINGH                         901
                       [S.B. SINHA, J.]
1
             the delinquents are not associated in the preliminary A
             enquiry, and thereafter the charge-sheet was drawn up.
             The copies of those statements, thou_gh asked for by the
             respondent, were not supplied to him. Since there was a
             failure on the part of the appellant in this regard too, the
..._
             Tribunal was justified in coming to the conclusion that the B
             principles of natural justice wer-e violated and the
             respondent was not afforded an effective opportunity of
             hearing, particularly as the appellant failed to establish
             that non-supply of the copies of statements recorded during
             preliminary enquiry had not caused any prejudice to the c
             respondent in defending himself."
            19. In Khadarmal (supra), it was held that the Civil Court
       had no jurisdiction and the decrees which were passed have
       no force of law. Apparently, this Court in CA No.3428 of 2005
       (supra) found an apparent conflict in the said decision vis-'-vis         D
       Krishna Kant (supra) and Khadarmal (supra).
-+
             In Khadarmal (supra) also, however, this Court directed
       that if any back wages had been paid, the same shall not be
       recovered.
                                                                                 E
              20. The decisions referred to hereinbefore clearly brings
       about a distinction which cannot be lost sight of. If a right is
       claimed un.der the Industrial Disputes Act or the sister laws, the
       jurisdiction of the Civil Court would be barred, but if no such
       right is claimed, civil court will have jurisdiction.                     F
             21. Appellant is a 'State' within the meaning of Article 12
       of the Constitution of India. It is created under a statute. As a
       State, it is bound to complywith the requirements of Article 14
       of the Constitution of lndla as also other provisions of Part Ill of
       the Constitution. It is also bound to comply with the mandatory G
       provisions of the statute or the regulations framed by it.
             22. It is also bound to follow the principles of natural justice.
       In the event, it is found that the action on the part of a State is
       violative of the Constitutional Provisions or the mandatory
                                                                                 H
    902       SUPREME COURT REPORTS                   [2008] 6 S.C.R.


A requirements of a statute or statutory rules, the Civil Court would
  have the jurisdiction to direct reinstatement with full back wages.
         23. In Praga Tools Corporation v. C. V /manual & Ors.
    [AIR 1969 SC 1306], it was held :

B         "Therefore, the condition precedent for the issue of
          mandamus is that there is in one claiming it a legal right
          to the performance of a legal duty by one against whom
          it is sought. An order of mandamus is, in form, a command
          directed to a person, corporation or an inferior tribunal
c         requiring him or them to do a particular thing therein
          specified which appertains to his or their office and is in
          the nature of a public duty. It is, however, not necessary
          that the person or the authority on whom the statutory duty
          is imposed need be a public official or an official body. A
          mandamus can issue, for instance, to an official of a society
D
          to compel him to carry out the terms of the statute under
          or by which the society is constituted or governed and
          also to companies or corporations to carry out duties
          placed on them by the statutes authorizing their
          undertakings. A mandamus would also lie against a
E          company constituted by a statute for the purposes of
          fulfilling public responsibilities."
       24. For the reasons aforementioned, we do not find any
  merit in this appeal. It is dismissed accordingly. As the
F respondent has not appeared, there shall be no orders as to
  costs.
    B.B.B.                                        Appeal dismissed.