Holding

A civil court has jurisdiction to try a suit challenging termination when the claim is founded on constitutional, common‑law or statutory regulation grounds not expressly confined to the remedial scheme of the Industrial Disputes Act or its sister statutes.

Summary

The Rajasthan State Road Transport Corporation (a State corporation) terminated several employees and the employees filed civil suits alleging violation of natural‑justice principles and statutory regulations. The Supreme Court was asked to resolve a conflict between earlier judgments on whether civil courts have jurisdiction to entertain such suits when the dispute involves enforcement of rights under the Industrial Disputes Act or related statutes. The Court held that civil courts have plenary jurisdiction under Section 9 of the CPC unless a statute expressly bars it, and that the bar applies only when the claim is strictly for enforcement of rights created by the Industrial Disputes Act or its sister statutes. If the employee relies on constitutional rights, common‑law principles of natural justice, or statutory regulations not providing a specific forum, the civil court may entertain the suit. The Court also clarified that the doctrine of prospective overruling cannot be used to confer jurisdiction where none exists. The matter was remitted to the Division Bench to apply the clarified principles to the pending cases, and the appeal was dismissed.

Issues considered

The extent of civil court jurisdiction under Section 9 CPC to entertain suits challenging termination orders of a State corporation employee.
Whether a suit based on violation of natural‑justice principles or statutory regulations, but not expressly invoking the Industrial Disputes Act, is barred by the Act.
The effect of the doctrine of prospective overruling on jurisdictional questions in earlier judgments (Krishna Kant, Zakir Hussain).
The applicability of Article 14 of the Constitution and Article 12 (State definition) to the jurisdictional analysis.

Legislation cited

Code of Civil Procedure, 1908s. 9
Constitution of Indias. Article 12, s. Article 14, s. Article 254(1), s. Article 309, s. Article 311(2)
Industrial Disputes Act, 1947s. 2(j), s. 2(k), s. 2(s)
Industrial Employment (Standing Orders) Act, 1946
Road Transport Corporations Act, 1950s. 4, s. 45
Specific Relief Act, 1963s. 14(1)(b)

Subjects

jurisdictioncivil courttermination of serviceindustrial disputenatural justiceArticle 14State corporationSection 9 CPCIndustrial Disputes Actprospective overruling

Judgment

[2009] 2 S.C.R. 161

RAJASTHAN STATE ROAD TRANSPORT CORPORATION A
--I & ANR.
v
BAL MUKUND BArRWA
Civil Appeal No. 328 of 2005
JANUARY 12, 1009 B

--' (S.B. SINHA, DR. MUKUNDAKAM SHARMA AND ASOK
KUMAR GANGULY, JJ)
Code Of Civil Procedure, 1908:

s. 9 - Jurisdiction of civil court to entertain suits ques-
c
tioning orders passed by Rajasthan State Road Transport Cor-
poration terminating services of its employees - Held: Cor-
poration is 'State' within the meaning of Article 12 of the Con-
stitution - If an act on its part is violative of the constitutional
provisions or mandatory requirements of a statute or statutory D
rules, or in gross violation of principles of natural justie, civil
court will have the necessary jurisdiction to try a suit - But, if
the employee claims his right and corresponding obligations
only in terms of the provisions of the Industrial Disputes Act or
the sister laws, civil court will have none - Road Transport E
Corporations Act, 1950 - s. 45 - Rajasthan State Road Trans-
port Corporation Employees Service Regulations, 1965 - In:-
dustrial Disputes Act, 1947 - s. 2 (s) - Industrial Employment
(Standing Orders) Act, 1946 - Rajasthan State Road Trans-
port Workers and Workshop Employees Sanding Orders, 1965
- Constitution of lndida, 1950 -Article 14 - Natural justice.
F

In the instant matters a Division Bench of the Court
made the reference for resolution of a purported conflict
in two three-Judge Bench judgments in the cases of
Rajasthan State Road Transport Corporation and Another G
1
vs. Krishna Kant and others and Rajasthan SRTC and
1 others vs. Khadarmal. The issue for consideration before
1. 1995(5) sec 75
2. 2006(1) sec 59
161 H
162 SUPREME COURT REPORTS [2009] 2 S.C.R.

A the Court was as to the jurisdiction of the civil court to
entertain suits questioning orders of termination passed
by appellant-Rajasthan State Road Transport Corporation
against its employees.
Answering the reference, the Court
8 · , HELD: 1.1 The jurisdiction of civil court in terms of
. s.9 of the Code of Civil Procedure, 1908, to try suits of
civil nature is a plenary one. The provision relating to bar
to entertain a suit must, therefore, be laid down by a stat-
ute either expressly or by necessary implication. If a stat-
e ute while creating rights and obligations did not consti-
tute a forum for enforcing the same, plenary jurisdiction
of the civil court in view of Premier Automobiles Ltd could
not be held to have been taken away. [para 9 and 16)
[89-F, G, H; 181-A]
D The Premier Automobiles Ltd. vs. Kamlekar Shantaram
Wadke of Bombay & ors. (1976) 1 SCC 496; Narinder Mohan
Arya vs. United India Insurance Co. Ltd. & ors. (2006) 4 SCC
713; Roop Singh Negi vs. Punjab National Bank 2009 (1)
SCALE 284; Dhulabai vs. State of M. P (1968) 3 S.C.R. 662;
E Church of North India vs. Lavajibhai Ratanjibhai & ors. (2005)
10 SCC 760; United India Insurance Co.Ltd. vs. Ajay Sinha &
Anr 2008 (8) SCALE 509 - relied on.
Wolverhampton New Waterworks Co. vs. Hawkesford
F (1859) 6 CB (NS) 336: 28LJ CP 242:141 ER 486 - relied on.
Rajasthan SRTC & Ors. Vs. Khadarmal 2006(1) SCC
59 - referred to.
1.2 A dispute arising in between employer and em-
ployee may or may not be an industrial dispute. The ap-
G pellant-Corporation is a State within the meaning of Ar-
ticle 12 of the Constitution of India. If an act on its part is
found to be wholly unreasonable or arbitrary, the same
would be violative of Article 14 of the Constitution of In-
dia. In certain situations, even gross violation of the prin-
H ciples of natural justice has been held to come within the
RAJASTHAN STATE ROAD TRANSPORT 163
CORPORATION & ANR. V BAL MUKUND BAIRWA

ambit of Article 14. Any order passed in violation of the A
-I
principles of natural justice save and except certain con-
tingencies of cases, would be a nullity. In the event it is
found that the action on the part of State is violative of the
constitutional provisions or the mandatory requirements
of a statute or statutory rules the civil court would have B
the jurisdiction to direct reinstatement with full back
wages. However, if the claim relates to violation of a right
of a workman and a corresponding obligation on the part
' ·i
of the employer under the Industrial Disputes Act or the
Certified Standing brders, a civil suit may not lie. But, if
no procedure has been followed as laid down by the statu- c
tory Regulation or is otherwise imperative even under the
common law or the principles of natural justice which right
having arisen under the existing law, sub-para (2) of para-
graph 23 of the law laid down in Premier Automobiles Ltd.
shall prevail. An assumption that all such cases would D
fall only under the Industrial Disputes Act or sister laws
and, thus, the jurisdiction of the civil court would be
barred, may not be the correct interpretation of Premier
Automobiles Ltd. Which being a three-Judge Bench judg-
ment and having followed Dhu/abhai which is a Con_stitu- E
tion Bench judgment, is binding. [para 21-23 and 28-29]
[181-A, B, C, D; 184-G, H; 185-C, D, E]
The Premier Automobiles Ltd. vs. Kamlekar Shantaram
Wadke of Bombay & ors. (1976) 1 SCC 496; Dhulabai vs.
State of M. P. (1968) 3 S. C.R. 662; Sawai Singh vs. State of F
Rajasthan (1986) 3 SCC 454; and Narinder Mohan Arya vs.
United India Insurance Co. Ltd. & Ors. (2006) 4 SCC 713;
Satyavir Singh & ors. vs. Union of India & ors. (1985) 4SCC
252; Delhi Transport Corporation vs. 0. TC. Mazdoor Con-
gress & ors.; 1991 Supp (1) SCC 600; Union of India & Anr. G
1 vs. Tulsiram Patel (1985) 3 SCC 398; Central Inland Water
Transport Corporation Limited & Anr. vs. Brojo Nath Gangu/y
&Anr. (1986) 3 SCC 156; Praga Tools Corpn. Vs. C.A. !manual
(1969) 1 SCC 585; and Rajasthan State Road Transport Cor-
poration & ors. vs. Mohar Singh (2008) 5 sec 542 - relied on. H
164 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 1.3 It would not be correct to say that only because
the employee concerned is also a workman within the
meaning of the provisions of the 1947 Act or the condi-
. tions of his service are otherwise governed by the Stand-
ing Order certified under the 1946 Act ipsQ facto the civil court
B will have no jurisdiction. [para 23] [185-G, H; 186-A, B]
Rajasthan State Road Transport Corporation & ors.
vs. Mohar Singh (2008) 5 SCC 542 - relied on
1.4 Where the relationship between the parties as em-
ployer and employee is contractual,-right to enforce the
C contract of service depending on personal volition of an
employer, is prohibited in terms of Section 14(1)(b) of the
Specific Relief Act, 1963. It has, however, four exceptions,
namely, (1) when an employee enjoys a status, i.e., his
conditions of service are governed by the rules framed
D under the proviso appended to Article 309 of the Consti-
tution of India or a statute and would otherwise be gov-
erned by Article 311(2) of the Constitution of India; (2)
where the conditions of service are governed by statute
or statutory Regulation and in the event mandatory pro-
E visions thereof have been breached; (3) when the service
of the employee is otherwise protected by a statute; and
(4) where a right is claimed under the Industrial Disputes
Act or sister laws, termination of service having been ef-
fected in breach of the provisions thereof. [para 23] [186-
F D, E, F]
2.1 Where the conditions of service are governed by
two statutes, and an order passed against an employee/
workman in violation of a rule attracts both the statutes,
an attempt shall be_ made to apply the principles of 'Har-
G monious Construction". When there is a doubt as to
whether civil court has jurisdiction to try a suit or not, the
courts shall raise a presumption that it has such jurisdic-
tion. [para 24] [187-G, H; 188-A]
M. P Housing Board & Anr. Vs. Mano} Shrivastava
H 2006(2) SCC 702; M. P Vidyut Karamchari Sangh vs. M. P
RAJASTHAN STATE ROAD TRANSPORT 165
CORPORATION & ANR. V. BAL MUKUND BAIRWA

Electricity Board (2004) 9 SCC 755; Mahendra L. Jain & ors. A
"' vs. Indore Development Authority & ors. (2005) 1 SCC 639 -
referred to.
2.2 In the instant case, there is nothing to show that
rights were created under the Certified Standing Orders.
B
It has not been stated that the conditions of service in
respect of an employee are different under 1950 Act and
1946 Act. Thus, the rights and obligations of the employer
' ' having arisen under two Parliamentary Acts, the question
of invoking the provisions of Article 254 (1) of the Consti-
tution of India would also not arise herein. Provisions of
c
both the statutes must be given effect to. [para 25] [189-G,
H· 190-A B]
' '
M.P Vidyut Karamchari Sangh vs. M.P Electricity Board
(2004) 9 sec 755 - relied on. D
t
3. The application of doctrine of prospective over-
ruling in Krishna Kant may not be correct because either
a court has the requisite jurisdiction or it does not have. It
is well settled principle of law that the court cannot con-
fer jurisdiction where there is none and neither can the E
parties confer jurisdiction upon a court by consent. If a
• court decides a matter without jurisdiction as has rightly
~ been pointed out in Zakir Hussain in view of the seven-
Judge Bench decision of this Court in A.R. Antulay, the
same would be nullity and, thus, the doctrine of prospec- F
tive overruling shall not apply in such cases. Even other-
wise doctrine of prospective overruling has a limited ap-
plication. It ordinarily applies where a statute is declared
ultra vires and not in a case where the decree or order is
1 passed by a court/tribunal in respect whereof it had no G
jurisdiction. [para 30] [191-D, E, F, G]
Rajasthan State Road Transport Corporation & Ors. vs.
Zakir Hussain (2005) 7 SCC 447; A. R.Antulay vs. R. S. Na yak
(1988) 2 sec 602 - relied on. H
166 SUPREME COURT REPORTS [2009] 2 S.C.R.

A C. Golak Nath & ors. vs. State of Punjab & Anr. AIR 1967
v-
SC 1643; M,A. Murthy v. State of Karnataka and Ors. (2003) 7
SCC 517; Ashok Kumar Sankar vs. Union of India & Ors. (2007)
4 SCC 54; Rajasthan State Road Transport Corporation and
Another vs. Krishna Kant and others 1995(5) SCC 75 - referred
B to.

Case Law Reference
1995(5) sec 75 referred to para 2
I 4'
2006(1) sec 59 referred to para 2 r
c 2009 (1) SCALE 284 relied on para 9
I

(1968) 3 S.C.R. 662 relied on para 10 "
(2005) 1o sec 760 relied on para 11
2008 (8) SCALE 509 relied on para 11
D
(1976) 1 sec 496 relied on para 15
(1859) 6 CB (NS) 336=
28LJ CP 242:141 ER 486 relied on para 15
E (2005) 1 sec 447 . referred to para 17
(1988) 2 sec 602 referred to para 17
· (1985) 4 sec 252 relied on para 22
_..
1991 Supp (1) sec 600 relied on para 22
F (1985) 3 sec 398 relied on
1
para 22
1986) 3 sec 156 relied on para 22
(2008) 5 sec 542 relied on para 23
(1969) 1 sec 585 relied on para 23
G
(2005) 1 sec 639 referred to para 24 r
2006(2) sec 102 referred to para 24
(2004) 9 sec 755 referred to para 25
H
RAJASTHAN STATE ROAD TRANSPORT 167
CORPORATION & ANR. V. BAL MUKUND BAIRWA

(1986) 3 sec 454 relied on para 27 A
(2006) 4 sec 113 relied on para 27

AIR 1967 SC 1643 ' referred to para 30

(2003) 1 sec 517 referred to para 30
B
(2001) 4 sec 54 referred to para 30

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 328
. ' of 2005
->

From the Judgement and Order dated 10.09.2002 of the c
High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur
with CA. Nos. 318, 316-317, 324 of 2005 & 1875, 3002 of 2008
& 1687 of 2007, 6892 of 2003 & 954 of 2009.
Tapas Ray, Puneet Jain, Ms. Archana Tiwari, Sushil Kumar
Jain, Advs. for the Appellant. D
Ms. Aishwarya Bhati, Ms. Rekha Giri, Sweta Rani, Gp.
Capt. Karan Singh Bhati,AnisAhmed Khan, Rajesh K.L. Janjani,
K. Sarada Devi, for the Respondent.
The Judgement of the Court was delivered by . E
S.B. SINHA, J.
1. Leave granted in Special Leave Petition (Civil) No.
22300 of 2007.
F
2. Reference to this Bench has been made by a Division
Bench of this Court by an order dated 22.11.2007 for resolution
of a purported conflict in two three-Judge' Bench judgments of
this Court in the cases of Rajasthan State Road Transport cor-
poration &Anr. vs. Krishna Kant & Ors. [ 1995 (5) SCC 75) and G
Rajasthan SRTC & Ors. vs. Khadarmal [2006 (1) SCC 59).
3. The purported conflict in the aforementioned two deci-
sions centres round the jurisdiction of the civil court to entertain

- suits questioning orders of termination passed by the appellant
-Corporation against the respondents herein. The suits were H
168 SUPREME COURT REPORTS [2009] 2 S.C.R.

A filed by the respondents, inter alia, on the premise that termina-
tion of their seNices was in violation of the principles of natural
justice.
4. As this Court in this case at this juncture is only required
to lay down a principle of law, it is not necessary to state the
B facts of the matter in detail.
5. Appellant - Corporation, indisputably, was constituted
in terms of the provisions of Road Transport Corporations Act,
1950 (for short, "the 1950 Act"). By reason of the provision of
' .
c Section 4 thereof, each Corporation is a body corporate hav-
ing perpetual ,succession and a common seal and can in its
own name sue and be sued. Section 45 of the 1950 Act pro-
vides for the Regulation making power, stating:
"45. Power to make regulations.- (1) A Corporation may,
D with the previous sanction of the State Government, make
regulations, not inconsistent with this Act and the rules
made thereunder, for the administration of the affairs of
the Corporation.

E (2) In particular, and without prejudice to the generality of
the foregoing power, such regulations may provide for all
or any of the following matters, namely:-
(a) the manner in which, and the purposes for which,
persons may be associated with the Board under Section
F 10;
(b) the time and place of meetings of the Board and the
procedure to be followed in regard to transaction of
business at such meetings;
G (c) the conditions of appointment and seNice and the
scales of pay of officers and other employees of the
Corporation other than the Managing Director, the Chief
Accounts Officer and the Financial Adviser or, as the case
may be, the Chief Accounts Officer-cum-Financial Adviser,
H
RAJASTHAN STATE ROAD TRANSPORT CORP. & 169
ANR. V BAL MUKUND BAIRWA [S.,B. SINHA, J.]

(d) the issue of passes to the employees of the Corporation A
and other persons under section 19;
(e) the grant of refund in respect of unused tickets and
concessional passes under section 19."
6. Pursuant to or in furtherance of the said power, the Cor- B
poration made Regulations known as "Rajasthan State Road
Transport Corporation Employees Service Regulations, 1965".
Chapter V of the said Regulations provides for suspension, ter-
ll)ination, dismissal, removal and/or compulsory retirement, etc.
Indisputably, the Corporation is also an "industry" within the C
meaning of Section 2(j) of the Industrial Disputes Act, 1947.
7. The Parliament enacted Industrial Employment (Stand-
ing Orders) Act, 1946 (for short, "the 1946Act"). In the year 1965,
the Corporation framed its Standing Orders known as Rajasthan
State Road Transport Workers and Workshop Employees D
.,. Standing Orders, 1965, which were certified under the 1946
Act. The said Certified Standing Orders deal with suspension,
termination, dismissal, removal and/or compulsory retirement,
etc.
8. Indisputably, appellant- Corporation is a State within the E
meaning of Article 12 of the Constitution of India that is for the
purpose of Part Ill and Part IV thereof.·

9. The jurisdiction of a civil court is governed by Section 9
of the Code of Civil Procedure, which reads as under: F
"9 • Courts to try all civil suits unless barred:-The Courts
shall (subject to the provisions herein contained) have
jurisdiction to try all suits of a civil nature excepting suits
of which their cognizance is either expressly or impliedly
barred." G
The jurisdiction of the Civil Court in terms of the aforemen-
tioned provision is a plenary one. The provision relating to bar
to entertain a suit must therefore be laid down by a statute ei-
ther expressly or by necessary implication. An employee
-H
170 SUPREME COURT REPORTS- [2009] 2 S.C.R.

A charged with grave acts of misconduct must be held to be en-
.,..
titled to a fair hearing in the departmental proceeding. The com-
mon law principles of natural justice must also be complied with.
Rules laid down in the statutory rules indisputably should be fol-
lowed.
B In Narinder Mohan Arya vs. United India Insurance Co. Ltd.
& ors. [(2006) 4 SCC 713], , this Court held:
"26. In our opinion the learned Single Judge and
consequently the Division Bench of the High Court did not
c pose unto themselves the correct question. The matter
can be viewed from two angles. Despite limited jurisdiction
a civil court, it was entitled to interfere in a case where the
report of the Enquiry Officer is based on no evidence. In
a suit filed by a delinquent employee in a civil court as
also a writ court, in the event the findings arrived at in the
D
departmental proceedings are questioned before it should
,,
keep in mind the following: (1) the enquiry officer is n~t
permitted to collect any material from outside sources
during the conduct of the enquiry. [See State of Assam
and Anr. v. Mahendra Kumar Das and Ors. [(1970) 1 SCC
E 709] (2) In a domestic enquiry fairness in the procedure is
a part of the principles of natural justice [See Khem Chand
v. Union of India and Ors. (1958 SCR 1080) and State of ·
Uttar Pradesh v. Om Prakash Gupta (1969) 3 SCC 775]. !
(3) Exercise of discretionary power involve two elements ·
F (i) Objective and (ii)subjective and existence of the
exercise of an obje~tive element is a condition precedent
for exercise of the subjective element. [See K.L. Tripathi
v. State of Bank of India and Ors. (1984) 1 SCC 43]. (4)
It is not possible to lay down any rigid rules of the principles
G of natural justice which depends on the facts and
circumstances of each case but the concept of fair play in
,
action is the basis. [See Sawai Singh v. State of Rajasthan
(1986) 3 SCC 454] (5) The enquiry officer is not permitted
to travel beyond the charges and any punishment imposed
H on the basis of a finding which was not the subject matter
RAJASTHAN STATE ROAD TRANSPORT CORP. & 171
ANR. V BAL MUKUND BAIRWA [S.B. SINHA, J.]

of the charges is wholly illegal. [See Director (Inspection A
-..,. & quality Control) Export Inspection Council of India and
Ors. v. Kalyan Kumar Mitra and Ors. 1987 (2) Cal. LJ 344.
(6) Suspicion or presumption cannot take the place of
proof even in a domestic enquiry. The writ court is entitled
to interfere with the findings of the fact of any tribunal or B
authority in certain circumstances. [See Central Bank of
India Ltd. v. Prakash Chand Jain (1969) 1 SCR 735,
Kuldeep Singh v. Commissioner of Police and Ors. (1999)
2 sec 10]."

{See also Roop Singh Negi vs. Punjab National Bank
c
[2009 (1) SCALE 284]}

Section 9 of the Code is in enforcement of the fundamen-
tal principles of law laid down in the maxim Ubi jus lbi reme-
dium. Alitigant, thus, having a grievance of a civil nature has a D
right to institute a civil suit in a competent civi! court unless its
"" cognizance is either expressly or impliedly barred by any stat-
ute. Ex facie, in terms of Section 9 of the Code, civil courts can
try all suits, unless bared by statute, either expressly or by nee-
essary implication. E

10. The civil court, furthermore, being a court of plenary
jurisdiction has the jurisdiction to determine its jurisdiction upon
considering the averments made in the plaint but that would not
~
mean that the plaintiff can circumvent the provisions of law in
F
order to invest jurisdiction on the civil court although it other-
wise may not possess. For the said purpose, the court in given
cases would be entitled to decide the question of its own juris-
diction upon arriving at a finding in regard to the existence of
the jurisdictional fact. It is also well settled that there is a pre- G
sumption that a civil court will have jurisdiction and the ouster of
.!
civil court's jurisdiction is not to be readily inferred. A person
taking a plea contra must establish the same. Even in a case
where jurisdiction of a civil court is sought to be barred under a
statute, the civil court can exercise its jurisdiction in respect of H
172 SUPREME COURT REPORTS [2009] 2 S.C.R.

A some matters particularly when the statutory authority or Tribu-
nal acts without jurisdiction. _,.
11 .. In Dhulabai vs. State of M. P. [(1968) 3 S.C.R. 662],
this Court held as under:

8 "(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,
r '

however, does not exclude those cases where the .
c 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
D 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 exar:nination of
the remedies and the scheme of the particular Act to find
E
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 ~
F and liability shall be determined by the tribunals so t
constituted, and whether remedies normally associated ,.
with actions in civil courts are prescribed by the said statute
or not.
f
G (3) Challenge to the provisions of the particular Act 13s
ultra vires cannot be brought before Tribunals constituted t
under that Act. Even the High Court cannot go into that
question on a revision or reference from the decision of
the Tribunals. ~
..
H (4) When a provision is already declared unconstitutional ~
RAJASTHAN STATE ROAD TRANSPORT CORP. & 173
ANR. V BAL MUKUND BAIRWA [S.B. SINHA, J.]
or the constitutionality of any provision is to be challenged, A
a suit is open. A writ of certiorari may include a direction
"" for refund if the claim is clearly within the time prescribed
by the Limitation Act but it is not a compulsory remedy to
replace a suit.
(5) Where the particular Act contains no machinery for B
~.
....., refund of tax collected in excess of constitutional limits or
illegally collected a suit lies .

- ~
. .(6) Questions of the correctness of the assessment apart
from its constitutionality are for the decision of the
authorities and a civil suit does not lie if the orders of the
c
authorities are declared to be final or there is an express
prohibition in the particular Act. In either case the scheme
of the particular Act must be examined because it is a
relevant enquiry.
D
.. (7) An exclusion of the jurisdiction of thP civil court is not
.... readily to be inferred unless the conditions above set down
apply."
{See also Church of North India vs. Lavajibhai Ratanjibhai
& ors. [(2005) 10 SCC 760], United India Insurance Co.Ltd. vs. E
Ajay Sinha & Anr. [2008 (8) SCALE 509]}
12. The word "industrial dispute" is defined in Section 2(k)
of the 1947 Act to mean:
"'·· "(k) "industrial dispute" means any dispute or difference F
between employers and employers, or between
employers and workmen, or between workmen and
_.
~ workmen, which is connected with the employment or non-
employment or the terms of employment or with the
conditions of labour, of any persons;" G
_.,.,,..
- ,. The expression 'workman' has been defined in clause (s)
! .
of Section 2 to mean any person (including an apprentice) em-
ployed in any industry to do any manual, unskilled, skilled, tech-
nical, operational, clerical or supervisory work for hire or reward,
H
174 SUPREME COURT REPORTS [2009) 2 S.C.R.

A whether the terms of employment be express or implied, and
for the purposes of any proceeding under this Act in relation to ~
an industrial dispute, includes any such person who has been
dismissed, discharged or retrenched in connection with, or as
a consequence of, that dispute, or whose dismissal, discharge
B or retrenchment has led to that dispute, but does not include
any such person- (i) who in subject to the Air Force Act, 1950
(45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy
Act, 1957 (62 of 1957); or (ii) who is employed in the police

c
service or as an officer or other employee of a prison; or (iii)
who is employed mainly in a managerial or administrative ca- •
pacity; or (iv) who, being employed in a supervisory capacity,
draws wages exceeding one thousand six hundred rupees per
mensem or exercise, either by the nature of the duties attached
to the office or by reason of the powers vested in him, functions
-
mainly of a managerial nature.
D
Clause (g) of Section 2 defines 'employer' to mean: ..,,_

"(g) "employer" means- "
(i) in relation to any industry carried on by or under the
E authority of any department of the Central Government or
a State Government, the authority prescribed in this behalf,
or where no authority is prescribed, the head of the
department;
(ii) in relation to an industry carried on by or on behalf of
,,.
F a local authority, the chief executive officer of that authority;"
'
13. Indisputably, the 1947 Act provides for the forum for
determination of an industrial 'disputes raised between work-
men and workmen; workmen and employer; and employer and
employer inter alia if any reference is made by an appropriate
G
. Government in exercise of its power conferred upon it under ....
Section 10 thereof. Section 11 of the 1947 Act provides for pro- 'r-
)

cedure and power of conciliation officers, Boards, Courts and
Tribunal while Section 11Aconfers extensive power on the labour
court or the Industrial Tribunal to interfere with an order of pun-
H
RAJASTHAN STATE ROAD TRANSPORT CORP. & 175
ANR. V BAL MUKUND BAIRWA [S.8. SINHA, J.]

ishment imposed upon a workman including a power to substi- A
·~ tute the punishment awarded by the employer upon holding a
domestic enquiry.
14. Section 3 of the 1946 Act obligates every industrial
establishment to frame Standing Orders in respect of matters
set out in the Schedule appended thereto and submit the same B
to the certified officer who shall certify the same upon arriving at
its satisfaction that they have been framed in accordance of the
1946Act. Upon such certification, the Standing Orders become
' binding upon the employer and employees.
c
15. The question in regard to the jurisdiction of a Civil Court
vis-'-vis adjudication of rights/obligations created by or under
the 194 7 Act came up for consideration in The Premier Auto-
mobiles Ltd. vs. Kamlekar Shantaram Wadke of Bombay & ors.
[(1976) 1 sec 496], wherein following the dicta laid down in
D
Wolverhampton New Waterworks Co. vs. Hawkesford [(1859)
6 CB (NS) 336: 28 LJ CP 242: 141 ER 486], law was laid down
" in the following terms:
"23. To sum up, the principles applicable to the jurisdiction
of the civil court in relation to an industrial dispute may be E
stated thus:

(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.
F
(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
G
... be granted in a particular remedy.

(3) If the industrial dispute relates to the enforcement of a
right or an obligation created under the Act, then the only
remedy available to the suitor is to get an adjudication
under the Act. H
176 SUPREME COURT REPORTS [2009] 2 S.C.R..

A (4) If the right which is sought to be enforced is a right
..... i.
created under the Act such as Chapter V-A then the remedy
for its enforcement is either Section 33-C or the raising of
an industrial dispute, as the case may be."
16. The question came up for consideration again before
B a three Judge Bench of this Court in Krishna Kant (supra)
wherein, inter alia, it was held:
.--
r--·
"29. Now let us examine the facts of the appeals before us I
.l
in the light of the principles adumbrated Premier
t-
c Automobiles. The first thing to be noticed is the basis
upon which the plaintiffs-respondents have claimed the
several reliefs in the suit. The basis is the violation of
the certified Standing Orders in force in the a1wellant-
establishment. The basis is not the violation of any terms \-
of contract of service entered into between the Qarties
D
g_overned by the law of contract. At the same time, it must -)

~
be said, no right or obligation created by the Industrial
Disputes Act is sought to be enforced in the suit. Yet
another circumstance is that the Standing Orders Act does
not itself provide any forum for the enforcement of rights
E and liabilities created by the Standing Orders. The
.---
question that arises is whether such a suit falls under I

Principle No. 3 of Premier Automobiles or under Principle '
No. 2? We are of the opinion that it falls under Principle I
No. 3. The words "under the Act" in Principle No. 3 must,
F in our considered opinion, be understood as referring ....
not only to Industrial Disputes Act but also to all sister ·l1.·
enactments - [like Industrial Employment {Standing
Orders) Act] which do not provide a special forum of their I,

own for enforcement of the rights and liabilities created
G by them. Thus a dispute involving the enforcement .of the
rights and liabilities created by the certified Standing "). .~
Orders has necessarily got to be adjudicated only in the
forums created by the Industrial Disputes Act provided, of
course, that such a dispute amounts to an industrial dispute
H within the meaning of Sections 2(k) and 2-A of Industrial
~
RAJASTHAN STATE ROAD TRANSPORT CORP. & 177
ANR. V. BAL MUKUND BAIRWA [S.B. SINHA, J.]

Disputes Act or such enactment says that such dispute A
~ ....
shall be either treated as an industrial dispute or shall be
adjudicated by any of the forums created by the Industrial
Disputes Act. The civil courts have no jurisdiction to
entertain such suits. In other words, a disQute arising
between the emQloyer and the workman/workmen under. B
or for the enforcement of the Industrial EmQloyment
Standing Orders is an industrial disQute, if it satisfies the
reguirements of Section 2{k) and/or Section 2-A of the
Industrial DisQutes Act and must be adjudicated in the
forums created by the Industrial DisQutes Act alone. This
c
would be so, even if the dispute raised or relief claimed
is based partly upon certified Standing Orders and partly
on general law of contract."
[emphasis supplied]
D
). It was, however, noticed:
)
"33. Coming to the order dated 18-10-1989 in SLP (C)
No. 9386 of 1988 made by a Bench of two learned Judges,
the important fact to be noticed is that in that suit, no
allegation of violation of the certified Standing Orders was E
made. The only basis of the suit was violation of principles
of natural justice. It was, therefore, held that it was governed
by Principle No. 2 in Premier Automobiles. In this sense,
.,
' ' this order cannot be said to lay down a proposition contrary
to the one in Jitendra Nath Biswas. We may also refer to F -
a decision of this Court rendered by Untwalia, J., on behalf
of a Bench comprising himself and A.P. Sen, J., in Sitaram
Kashiram Kanda v. Pigment Cakes and Chemicals Mfg.
Co. That was a case arising from a suit instituted by the
workman for a declaration that termination of his service
G
is illegal and for reinstatement. In the alternative, he
;'
claimed compensation for wrongful termination. The
jurisdiction of the civil court was sustained by this Court on
the ground that he has made out a case for awarding
compensation though the civil court could not decree
H
178 SUPREME COURT REPORTS [2009] 2 S.C.R.

A reinstatement. Though the report does not indicate the
basis put forward by the workman-plaintiff therein, the court
found on an examination of all the facts and circumstances
of the case that "it is not quite correct to say that the suit
filed by the appellant is not maintainable at all in a civil
B court". Obviously it was a case where the dispute related
to enforcement of rights flowing from general law of
contrapt and not from certified Standing Orders. This
decision cannot also be read as laying down a different
proposition from Premier Automobiles."
C The principles flowing from the discussions in the said
decisions were summarized thus:
"35. We may now summarise the principles flowing from
the above discussion:
D (1) Where the dispute arises from general law of contract,
i.e., where reliefs are claimed on the basis of the general
law of contract, a suit filed in civil court cannot be said to
be not maintainable, even though such a dispute may also
constitute an "industrial dispute" within the meaning of
E Section 2(k) or Section 2-A of the Industrial Disputes Act,
1947.

(2) Where, however, the dispute involves recognition,
observance or enforcement of any of the rights or I .

obligati.ons created by the Industrial Disputes Act, the only
F remedy is to approach the forums created by the said Act.
(3) Similarly, where the dispute involves the recognition,
observance or enforcement of rights and obligations
created by enactments like Industrial Employment
(Standing Orders) Act, 1946 -which can be called "sister
G
enactments" to Industrial Disputes Act - and which do
not provide a forum for resolution of such disputes, the
only remedy shall be to approach· the forums created by·
the Industrial Disputes Act provided they constitute industrial
disputes within the meaning of Section 2(k) and Section
H
RAJASTHAN STATE ROAD TRANSPORT CORP. & 179
ANR. V. BAL MUKUND BAIR\JVA [S.8. SINHA, J.]

2-A of Industrial Disputes Act or where such enactment A
...... says that such dispute shall be either treated as an
industrial dispute or says that it shall be adjudicated by
any of the forums created by the Industrial Disputes Act.
Otherwise, recourse to civil court is open.
(4) It is not correct to say that the remedies provided by B
the Industrial Disputes Act are not equally effective for the
reason that access to the forum depends upon a reference
being made by the appropriate Government. The power
to make a reference conferred upon the Government is to
be exercised to effectuate the object of the enactment c
and hence not unguided. The rule is to make a reference
unless, of course, the dispute raised is a totally frivolous
one ex facie. The power conferred is the power to refer
and not the power to decide, though it may be that the
Government is entitled to examine whether the dispute is D
... ex facie frivolous, not meriting an adjudication .
\
(5) Consistent with the policy of law aforesaid, we commend
to Parliament and the State Legislatures to make a
provision enabling a workman to approach the Labour
Court/Industrial Tribunal. directly - i.e., without the E
requirement of a reference by the Government - in case
of industrial disputes covered by Section 2-A of the
Industrial Disputes Act. This would go a long way in
.. ~ removing the misgivings with respect to the effectiveness
of the remedies provided by the Industrial Disputes Act. F
(6) The certified Standing Orders framed under and in
accordance with the Industrial Employment (Standing
Orders) Act, 1946 are statutorily imposed conditions of
service and are binding both upon the employers and
employees, though they do not amount to "statutory G
provisions". Any violation of these Standing Orders entitles
. .! an employee to appropriate relief either before the forums
created by the Industrial Disputes Act or the civil court
where recourse to civil court is open according to the
principles indicated herein. H
180 SUPREME COURT REPORTS [2009] 2 S.C.R.

A (7) The policy of law emerging from Industrial Disputes
Act and its sister enactments is to provide an alternative
dispute-resolution mechanism to the workmen, a
mechanism which is speedy, inexpensive, informal and
unencumbered by the plethora of procedural laws and
B appeals upon appeals and revisions applicable to civil
courts. Indeed, the powers of the courts and tribunals under
the Industrial Disputes Act are far more extensive in the
sense that they can grant such relief as they think
appropriate in the circumstances for putting an end to an
industrial dispute."
c
Applying the said principles to the fact of the cases wherein
the plaintiffs alleged that the enquiries were conducted in viola-
tion of the Standing Orders whereas the stand taken by the Cor-
poration was that the requirements contain?d in the Standing
D Orders were complied with, the Bench, however, noticed that
no Regulation had been framed by the Corporation in terms of
Section 45 of the Act insofar as the employees answering the
description of 'workman' as defined in Section 2(s) of the 1947
Act are concerned.
E It appears that therein no dispute was raised that the pro-
visions of the Standing Orders were appli_cable. The question,
therefore, which inter alia arose for consideration was as to
whether in holding the departmental proceeding the provisions
of the Certified Standing Orders were violated or not. While
F holding that Civil Court's jurisdiction to entertain the suit was
bared, it was held:
"37. It is directed that the principles enunciated in this
judgment shall apply to all pending matters except where ·
decrees have been passed by the trial court and the
G
matters are pending in appeal or second appeal, as the
case may be. All suits pending in the trial court shall be
governed by the principles enunciated herein - as also
the suits and proceedings to be instituted hereinafter."

H With greatest of respect to the learned judges, if a statute
RAJASTHAN STATE ROAD TRANSPORT CORP. & 181
ANR. V. BAL MUKUND BAIRWA [S.B. SINHA, J.)

while creating rights and obligations did not constitute a forum A
for enforcing the same, plenary jurisdiction of the civil court in
view of Premier Automobiles Ltd.(supra) could not be held to
have been taken away. There was also no occasion to extend
the scope of the dicta laid down therein. Certified Standing Or-
ders lay down the terms and conditions of service. It did not B
create any new right such as Section 25F, 25G or 25H of the
Industrial Disputes Act, 1947.·Any new right created under a
statute would ordinarily be a right in favour of an employee over
and above the general law.
Let us, however, proceed on the basis that the dicta laid C
down therein is correct.
17. A similar question, however, came up for consideration
before a two-Judge Bench of this Court in Rajasthan State Road
Transport Corporation & Ors. vs. Zakir Hussain ((2005) 7 SCC D
447], wherein_this Court following the seven-Judges Bench de-
cision of this Court in A.R. Antu lay vs. R.S. Nayak ((1988) 2 SCC
602] opined that if the court has no jurisdiction, it cannot be
conferred by an order of the court. Therein the order of termina-
tion was a simpliciter one which was passed during the period
of probation and, thus, did not entail any stigma or civil conse- E
quences visiting him. In the facts of the case, Krishna Kant (su-
pra) was not followed, stating:
"35. Learned counsel for the respondent placing strong
\ '
reliance on the judgment in Rajasthan SRTC v. Krishna F
Kant submitted that since the decree has been passed by
the trial court on 28-7-1989 and the appeal filed by the
Corporation was dismissed on 27-9-1989 which was
pending prior to the judgment reported in Krishna Kant,
the respondent is right in approaching the civil court. This G
contention has no force. This Court has very explicitly
summarised the principles flowing from the discussion in
the judgment in para 35 and applying the above principles
this Court has categorically held that the suits filed by the
employees in those appeals were not maintainable in law.
H
182 SUPREME COURT REPORTS [2009] 2 S.C.R.
'>

A But, however, granted certain reliefs by reducing the back
wages, etc. etc. in the peculiar facts and circumstances of ~ I,
\
the case. Therefore, in our opinion, the above judgment
will not be of any assistance or aid to the claim of the I
I
respondent."
B 18. The question came up for consideration again before
a three-Judge Bench of this Court again in Khadarmal (supra)
wherein referring to Krishna Kant (supra) and Zakir Hussain
(supra), it was held that the civil court has no jurisdiction to adju-
dicate. However, without noticing Para 37 in Krishna Kant (su-
c pra), this Court held:
"4. It is submitted that all the suits in these matters were
filed at a time when the position of law was not clear. It is
submitted that therefore even in these cases the Court
should not interfere with the decrees but may direct that
D
there shall be no payment of back wages. --i::
...._
5. On behalf of the appellants reliance is placed on the
second Rajasthan SRTC case and it is pointed out that
the Court had, after considering the earlier judgment,
E concluded that the reinstatement cannot now be
maintained and directed that the respondents shall not be
allowed to continue in service any further. The C.ourt has
however held that the back wages which may have been
paid are not to be recovered back but clarified that the ' '

F respondents will not be entitled to any further emoluments
or service benefits except the amount paid to them as
back wages.
6. In our view, as the civil court had no jurisdiction, the
decrees which were passed have no force of law. They
G are accordingly set aside. In our view, there can be no
direction to reinstate or to continue reinstatement. -Y.~.
However, on the facts of these cases ·we also direct that
if any back wages have been paid, they shall not be
recovered but clarify that the respondents will not be entitled ~
H to any further emoluments or service benefits."
RAJASTHAN STATE ROAD TRANSPORT CORP. & 183
ANR. V BAL MUKUND BAIRWA [S.B. SINHA, J.]

Para 37 of Krishna Kant (supra), however, was noticed in A
""' Rajasthan SRTC & Anr. vs. Ugma Ram Choudhary [(2006) 1
sec 61] to hold:
"4. Paragraph 37 of Krishna Kant case has been
considered by this Court in para 35 of Zakir Hussain case.
It has been held that once it is held that the civil court has B
no jurisdiction, the consequences must follow. This view
has been reiterated by this Court in the unreported [now
reported in (2006) 1 SCC 59, infra] judgment in Khadarmal
case. Therefore, it is not possible to accept this
submission." C
19. In view of somewhat different conclusions arrived at
by this Court in ifferent cases as noticed hereinbefore whereas
the contention of Mr. Tapas Ray, learned Senior Counsel ap-
pearing on behalf of the appellant-Corporation is that despite
0
the fact that the suits were instituted and decrees were passed
prior to the date of pronouncement of judgment in Krishna Kant
(supra), we should opine that the civil court had no jurisdiction
and, thus, dismiss the suit; the contention of Ms. Aisbwarya Bhati

- and other learned counsel appearing on behalf of the respon-
dent is that as doctrine of prospective overruling was applied in
Krishna Kant (supra) and furthermore as in this case the suit is
E

based on the allegations of violation of principles of natural jus-
tice, this Court should not interfere with the decrees passed by
the learned trial court.
F
20. Before us, however, the statutory Regulations framed
by the appellant - Corporation under Section 45 of the Act had
been placed. We do notfind that any distinction has been made
in regard to the matters relating to holding of the departmental
proceedings against an employee for commission of a mis- G
conduct vis-'-vis the industrial workers. The question as to
"' whether in a case of this nature where violation is alleged as
regards compliance of principles of natural justice either on
common law principles or in terms of the statutory Regulations
framed by the appellant - Corporation, which is a fundamental
H
184 SUPREME COURT REPORTS [2009] 2 S.C.R.

A right in terms of Article 14 of the Constitution of India, a civil suit
will be maintainable or not, thus, have not been taken into con- _A
sideration in any of the aforementioned decisions.
The legal principles, namely, presumption in regard to the
jurisdiction of the Civil Court and interpretation of a statute in-
B valving plenary jurisdiction of a civil court had also not been taken

-
into consideration. I'

In Wolverhamgton New Waterworks Co. (supra), it has
categorically been laid down: ..I

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,
unless the statute contains words necessarily excluding
D 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 ~
-l::
,...
cases in which a statute has created a liability, but has

E
given 110 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."

It was on the aforementioned principle, the question of
appli9ability of principles 1, 2 and 3 laid down in Para 23 in
Premier Automobiles Ltd. (supra) will have to be taken into con-
side ration.
G
21. A dispute arising in between an employer and employee
may or may not be an industrial dispute. The dispute may be in ~
~-

relation to or arising out of a fundamental right of the employee,
or his right under a Parliamentary Act and the Regulations
framed thereunder, and/or a right arising under the provisions
H
RAJASTHAN STATE ROAD TRANSPORT CORP. & 185
ANR. V. BAL MUKUND BAIRWA [S.B. SINHA, J.]

of the Industrial Disputes Act or the sister laws and may relate A
•, to same or similar rights or different rights, or even may be based
on common law right or contractual right. The question in re-
gard to the jurisdiction of the civil court must, therefore, be ad-
dressed having regard to the fact as to which rights or obliga-
tions are sought to be enforced for the purpose of invoking or B
excluding the jurisdiction of a civil court.

22. Appellant, as noticed hereinbefore, is a State within
the meaning of Article 12 of the Constitution of India. If an act on
·-" its part is found to be wholly unreasonable or arbitrary, the same
would be violative of Article 14 of the Constitution of India. In c
certain situations, even gross violation of the principles of natu-
ral justice has been held to come within the ambit of Article 14.

{See also Satyavir Singh & ors. vs. Union of India & ors.
[(1985) 4 SCC 252], Delhi Transport Corporation vs. D.T.C.
D
Mazdoor Congress & ors. [1991 Supp (1) SCC 600], Union of
\ India & Anr. vs. Tulsiram Patel [(1985) 3 SCC 398], Central In-
land Water Transport Corporation Limited & Anr. vs. Brojo Nath
Ganguly &Anr. [(1986) 3 SCC 156]}

Any order passed in violation of the principles of natural E
justice save and except certain contingencies of cases, would
be a nullity. In A.R. Antulay (supra), this Court held:

"No prejudice need be proved for enforcing the fundamental
-\
rights. Violation of a fundamental right itself renders the
impugned action void. So also the violation of the principles F
of natural justice renders the act a nullity."

23. If an employee intends to enforce his constitutional
rights or a right under a statutory Regulation, the civil court will
have the necessary jurisdiction to try a suit. If, however, he claims
G
his right and corresponding obligations only in terms of the pro-
..,; visions of the Industrial Disputes Act or the sister laws so called,
the civil court will have none. In this view of the matter, in our
considered opinion, it would not be correct to contend that only
because the employee concerned is also a workman within the
H
186 SUPREME COURT REPORTS [2009] 2 S. C.R.

A meaning of the provisions of the 194 7 Act or the conditions of
his service are otherwise governed by the Standing Order cer-
tified under the 1946 Act ipso facto the Civil Court will have no
jurisdiction. This aspect of the matter has recently been consid-
, ered by this Court in Rajasthan State Road Transport Corpora-
s tion & ors. VS. Mohar Singh [(2008) 5 sec 542). The question
as to whether the civil court's jurisdiction is barred or not must
be determined having regard to the fact of each case.
If the infringement of Standing Order or other provisions of
the Industrial Disputes Act are alleged, the civil court's jurisdic-
C tion may be held to be barred but if the suit is based on the
violation of principles of common law or constitutional provisions
or on other grounds, the civil court's jurisdiction may not be held
to be barred. If no right is claimed under a special statute in
terms whereof the jurisdiction of the civil court is barred, the
D civil court will have jurisdiction.
Where the relationship between the parties as employer
and employee is contractual, right to enforce the contract of
service depending on personal volition of an employer, is pro-
hibited in terms of Section 14(1)(b) of the Specific Relief Act,
E 1963. It has, however, four exceptions, namely, (1) when an em-
ployee enjoys a status, i.e:, his conditions of service are gov-
erned by the rules framed under the proviso appended to Ar-
ticle 309 of the Constitution of India or a statute and would oth-
erwise be governed by Article 311 (2) of the Constitution of ln-
F dia; (2) where the conditions of service are governed by statute
or statutory Regulation and in the event mandatory provisions
thereof have been breached; (3) when the service of the em-
ployee is otherwise protected by a statute; and (4) where a right
is claimed under the Industrial Disputes Act or sister laws, ter-
G mi nation of service having been effected in breach of the provi-
sions thereof.
Appellant - Corporation is bound to comply with the man-
dator provisions of the statute or the regulations framed under
it. A subordinate legislation when validly framed becomes a part
H
RAJASTHAN STATE ROAD TRANSPORT CORP. & 187
ANR. V BAL MUKUND BAIRWA [S.B. SINHA, J.]

•-.. of the Act. It is also bound to follow the principles of natural jus- A
tice. In the event it is found that the action on the part of State is
violative of the constitutional provisions or the mandatory re-
quirements of a statute or statutory rules, the civil court would
have the jurisdiction to direct reinstatement with full back wages.

In Praga Tools Corpn. Vs. C.A. !manual [(1969) 1 SCC B
585], it was held:-

-~
"6 .... Therefore, the condition precedent for the issue of
mandamus is that there is in one claiming it a legal right
to the performance of a legal duty by one against whom c
it is sought. An order of mandamus is, in form, a command
directed to a person, corporation or an inferior tribunal
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
D
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
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 E
placed on them by the statutes authorizing their
undertakings. A mandamus would also lie against a
~ company constituted by a statute for the purposes of
. '
fulfilling public responsibilities."
F
[See also Rajasthan State Road Transport Corporation &
ors. vs.Mohar Singh (supra)]

24. There is another aspect of the matter which cannot
also be lost sight of, namely, where the conditions of service
are governed by two statutes, the effect thereof on an order G
--~ passed against an employee/workman in violation of a rule
which would attract both the statutes. An attempt shall be made
in a case of that nature to apply the principles of 'Harmonious
Construction".
H
188 SUPREME COURT REPORTS [2009] 2 S.C.R.

A When there is a doubt as to whether civil court has juris-
diction to try a suit or not, the courts shall raise a presumption
that it has such jurisdiction.
In Mahendra L. Jain & ors. vs. Indore Development Au-
thority & ors. [(2005) 1 SCC 639], this Court held:
B
"31. The Standing Orders governing the terms and
conditions of service must be read subject to the
constitutional limitations wherever applicable. Constitution
being the suprema lex, shall prevail over all other statutes.
c The only provision as regards recruitment of the employees
is contained in Order 4 which merely provides that the
manager shall within a period of six months, lay down the
procedure for recruitment of employees and notify it on
the notice board on which Standing Orders are exhibited
and shall send copy thereof to the Labour Commissioner.
D
The matter relating to recruitment is governed by the 1973
Act and the 1987 Rules. In the absence of any specific
directions contained in the Schedule appended to the
Standing Orders, the statute and the statutory rules
applicable to the employees of the respondent shall prevail.
E
.xxx .xxx .xxx
33. For the purpose of this matter, we would proceed on
the basis that the 1961 Act is a special statute vis-'-vis the
1973 Act and the Rules framed thereunder. But in the
F absence of any conflict in the provisions of the said Act,
the conditions of service including those relating to
recruitment as provided for in the 1973 Act and the 1987
Rules would apply. If by reason of the latter, the appointment
is invalid, the same cannot be validated by taking recourse
G to regularisation. For the purpose of regularisation which
would ·confer on the employee concerned a permanent '
status, there must exist a post. However, we may hasten
to add that regularisation itself does not imply permanency.
He have used the term keeping in view the provisions of
H the 1963 Rules."
RAJASTHAN STATE ROAD TRANSPORT CORP. & 189
ANR. V BAL MUKUND BAIRWA [S.B. SINHA, J.]

.... In M.P. Housing Board & Anr. vs. Manoj Shrivastava A
[2006(2) SCC 702], this Court almost in a situation of this na-
ture where the appellant was constituted under a statute and
the conditions of service of its employees were governed there-
under as also Certified Standing Order, held:
"8. A person with a view to obtain the status of a "permanent B
employee" must be appointed in terms of the statutory
rules. It is not the case of the respondent that he was
-~ appointed against a vacant post which was duly sanctioned
by the statutory authority or his appointment was made
upon following the statutory law operating in the field. c
9. The Labour Court unfortunately did not advert to the
said question and proceeded to pass its award on the
premise that as the respondent had worked for more than
six months satisfactorily in terms of clause 2(vi) of the
D
-t Standard Standing Orders, he acquired the right of
\
becoming permanent. For arriving at the said conclusion,
the Labour Court relied only upon the oral statement made
by the respondent.
10. It is one thing to say that a person was appointed on E
an ad hoc basis or as a daily-wager but it is another thing
to say that he is appointed in a sanctioned post which was
lying vacant upon following the due procedure prescribed
~

~
~- therefor.

11. It has not been found by the Labour Court that the F
respondent was appointed by the appellant herein, which
is "State" within the meaning of Article 12 of the
Constituti.on, upon compliante with the constitutional
requirements as also the provisions of the 1972 Act or the
Rules and Regulations framed thereunder." G
-'r
+
25. We may also notice that there is nothing to show that
rights were created under the Certified Standing Orders. It has
not been stated that the conditions of service in respect of an
employee are different under 1950 Act and 1946 Act. The mat-
H
190 SUPREME COURT REPORTS [2009] 2 S. C.R.

A ter might have been different if a statute was brought into force
, later than the earlier statute which would attract the provisions ...
of Article 254 of the Constitution of India one being in direct
conflict with the other as was noticed in M.P. Vidyut Karamchari
.Sangh vs. M.P. Electricity Board [(2004) 9 SCC 755].
B Thus, the rights and obligations of the employer having
arisen under two Parliamentary Acts, the question of invoking
the provisions of Article 254 (1) of the Constitution of India would
also not arise herein. Provisions of both the statutes must be
given effect to
c
26. Mr. Ray, however, would submit that the application of
principles of natural justice may be different keeping in view, (i)
the common law principles; (ii) the statutory provisions; and (iii)
the constitutional provisions. The principles of natural justice
D ensure fairness. It means that a result or process should be just.
It is a harmless, though it may be a high-sounding expression; +
in so far as it attempts to reflect the old jus naturale, it is a con- /
fused and unwarranted transfer into the ethical sphere of a term
employed for other distinctions; and, in so far as it is resorted to
for other purposes, it is vacuous, so said LORD SHAW of
E Dunfermline in Local Government Board v. Arlidge [1915] AC
120 at p. 138 (HL).
27. The purpose of principles of natural justice is preven-
tion of miscarriage of justice and hence the observance thereof ,>
F is the pragmatic requirement of fair play in action.
{See Sawai Singh vs. State of Rajasthan [(1986) 3 SCC
454], Narinder Mohan Arya vs. United India Insurance Co. Ltd.
& ors. [(2006) 4 sec 713i}

G 28. In a case where no enquiry has been conducted, there
would be violation of the statutory Regulation as aiso the right of
equality as contained in Article 14 of the Constitution of India. In 1\.
such situation, a civil suit will be maintainable for the purpose of
declaration that the termination of service was illegal and the
consequences flowing therefrom. However, we may hasten to
H
RAJASTHAN STATE ROAD TRANSPORT CORP. & 191
ANR. V BAL MUKUND BAIRWA [S.B. SINHA, J.]

.~, add if a suit is filed alleging violation of a right by a workman A
and a corresponding obligation on the part of the employer un-
der the Industrial Disputes Act or the Certified Standing Orders,
a civil suit may not lie. However, if no procedure has been fol-
lowed as laid down by the statutory Regulation or is otherwise
imperative even under the common law or the principles of natu- B
ral justice which right having arisen under the existing law, sub-
para (2) of paragraph 23 of the law laid down in Premier Auto-
-J. mobiles Ltd. (supra) shall prevail.
29. An assumption on the part of this Court that all such
cases would fall only under the Industrial Disputes Act or sister c
laws and, thus, the jurisdiction of the civil court would be barred,
in our opinion, may not be the correct interpretation of Premier
Automobiles Ltd. (supra) which being a three-Judge Bench judg-
ment and having followed Dhulabhai (supra), which is a Consti-
tution Bench judgment, is binding on us. D
\
30. We may also observe that the application of doctrine
of prospective overruling in Krishna Kant (supra) may not be
correct because either a court has the requisite jurisdiction or it
does not have. It is well settled principle of law that the court
cannot confer jurisdiction where there is none and neither can E
the parties confer jurisdiction upon a court by consent. If a court
decides a matter without jurisdiction as has rightly been pointed
"-{
out in Zakir Hussain (supra) in view of the seven-Judge Bench
decision of this Court in A.R. Antulay (Supra), the same would
be nullity and, thus, the doctrine of prospective overruling shall F
not apply in such cases. Even otherwise doctrine of prospec-
tive overruling has a limited application. It ordinarily applies
where a statute is declared ultra vires and not in a case where
the decree or order is passed by a court/tribunal in respect
,,,. whereof it had no jurisdiction. G
.{

[See C. Golak Nath & ors. vs. State of Punjab & anr. (AIR
1967 SC 1643))

In M.A. Murthy v. State of Karnataka and Ors. [(2003) 7
SCC 517), this Court held: H
192 SUPREME COURT REPORTS [2009] 2 S.C.R.
I
i-
A " ... It is for this Court to indicate as to whether the decision .--4
·""
in question will operate prospectively. In other words, there
shall be no prospective overruling, unless it is so indicated
in the particular decision. It is not open to be held that the
r.
'
decision in a particular case will be prospective in its
8 application by application of the doctrine of prospective
II
overruling ......
(See also Ashok Kumar Sonkar vs. Union of India & ors.
[(2007) 4 sec 54] .l..

c As has been pointed by Justice Cardozo, in his famous
compilation of lectures - The Nature of the Judicial Process -
that in the vast majority of cases, a judgment would be retro-
spective. It is only where the hardship is too great that retro-
spective operation is withheld. A declaration of law when made
shall ordinarily apply to the facts of the case involved.
D +
31. We,· therefore, answer the question of law referred
before us and the matters be placed before the Division Bench
for consideration of the facts of each case. t
R.P. Reference Arswered.

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