Holding

Civil courts lack jurisdiction to entertain suits arising out of industrial disputes where the Industrial Disputes Act provides a specific remedy, and a probationary employee may be terminated without enquiry and without Article 311(2) protection.

Summary

The respondent, Zakir Hussain, was appointed as a daily‑wage conductor on a two‑year probation and was terminated for unsatisfactory performance without any enquiry. He appealed to the departmental authority, which dismissed his grievance, and then filed a suit in a civil court seeking a declaration that the termination was illegal, reinstatement and back wages. The civil court held it had jurisdiction and declared the termination illegal; the decree was upheld by lower appellate courts. The corporation appealed to the Supreme Court, arguing that the dispute was an industrial dispute falling within the ambit of the Industrial Disputes Act, that a probationer need not be given an enquiry, and that he was not protected by Article 311(2). The Supreme Court held that the suit was barred because the appropriate remedy lay under the Industrial Disputes Act, that termination of a probationer without enquiry is permissible and does not attract Article 311 protection, and set aside the civil decree. Consequently, the corporation's appeal was allowed, the respondent was discharged, and no further reinstatement or back wages were granted.

Issues considered

The civil court's jurisdiction to entertain a suit challenging termination of a probationary employee in an industrial dispute
Whether a probationer is entitled to an enquiry before termination and protection under Article 311(2) of the Constitution
Whether the respondent could claim reinstatement and back wages under the Industrial Disputes Act

Legislation cited

Companies Acts. 617
Constitution of Indias. 311(2)
Industrial Disputes Act, 1947s. 10, s. 12, s. 18, s. 19, s. 2(k), s. 2(p), s. 31(2), s. 33C(1), s. 33C(2)
Industrial Employment (Standing Orders) Act, 1946

Subjects

industrial disputecivil court jurisdictionprobationary employeetermination without enquiryArticle 311Industrial Disputes Actstanding ordersreinstatementback wagesnatural justice

Judgment

A RAJASTHAN STATE ROAD TRANSPORT
CORPORA TlON AND ORS.
v.
ZAKIR HUSSAIN

AUGUST 22, 2005
B
[RUMA PAL AND DR. AR. LAKSHMANAN, JJ.]

Labour Law :

C Conductor with State Road Corporation-During probation period his
services found unsaiisfact~ry and terminated-Suit for declaration that
termination was illegal decreed on the ground that no enquiry was held-
Correctness of-Held : Civil Court did not have jurisdiction to entertain
and try the suit-Remedies provided under the Industrial Disputes Act
D should have been approached especially as reliance was placed by the
employee on standing orders of the Corporation-Termination without
enquiry was proper as it was not founded on misconduct and employee
being a probationer, had no substantive right to hold that post-Protection
under Article 31 I of the Constitution of India was no available to employees
of Corporation.
E
The respondent was appointed as conductor with the respondent
-Corporation and was on probation for two years. His services were
terminated on being found to be unsatisfactory. He referred an appeal
against his termination before departmental appellate authority. On
F dismissal of this appeal, he filed a suit in a civil court. The suit was
decreed with the civil court holding that it had jurisdiction to try the
suit and declared that since services of respondent were terminated
without holding any enquiry, it was illegal and against natural justice
principles. First and second appeals of the appellants against the decree
were dismissed. Hence the present appeal.
G
Appellant contended that (a) the dispute between the parties being
an industrial dispute, the Civil Court had no jurisdiction to entertain
and \ry the suit; (b) as the respondent was appointed on probation and
the s·ervices were terminated during probation, it was not obligatory on
H the part of the Corporation to hold an enquiry before terminating the
786
RAJASTHAN STATE ROAD TRANSPORT CORPORATION i·, ZAK.IR HUSSAIN 787

services; (c) the respondent being only an employee of the Corporation A
and not a Government servant, was not entitled to protection of Article
311(2) of the Constitution of India.

Respondent contended that his services were not termination
simpliciter. It was based on remarks of checking staff which found B
passengers without ticket when he was on duty. Therefore, his termi-
nation was punitive and penal, and as there was no enquiry, same was
illegal.

Allowing the appeal, the Court
c
HELD : I.I. The respondent ought to have approached the rem-
edies provided under the Industrial Disputes Act. He has miserably
failed to do so but approached the Civil Court, which on the facts and
circumstances of the case has no jurisdiction to entertain and try the
SU~ D
1.2. It is not in dispute that the appellant is governed by
the Standing Orders of the Rajasthan State Road Transport Corporation
Workshop Employees and also governed by the terms of appointment.
This apart, the respondent has placed reliance on the standing order and,
therefore, the only remedy available to the respondent was by way of E
reference under the provisions of the Industrial Disputes Act. [802-D-E)

Premier Automobiles Limited v. Kama/kar Shantaram Wadke and
Ors., (1975) 2 LLJ 445; Rajasthan State Road Transport Corporation And
Anr. v. Krishna Kant and Others, [1995) 5 SCC 75 and U.P. State Bridge
F
Corporation Ltd and Others. v. U.P. Rajya Setu Nigam S. Karamchari
Sangh, [2004) 4 SCC 268, followed.

Jitendra Nath Biwas v. Mis. Empire of India and Ceylone Tea Co. and
Another, [1989) 3 SCC 582; B.S. Bhartiv. IBP Co. ltd., [2004) 7 SCC 550;
Chandrakant Tukaram Nikam and Ors. v. Municipal Corpn. of Ahmedabad G
and Anr., )2002) 2 SCC 542 and A.R. Antulay v. R.S. Nayck and Another,
(1998) SC 1531, relied on.

Krishnan and Another v. East India Distilleries and Sugar Factories
Ltd. Nellikuppam and Another, (1964) I LLJ 217 and Mailura H
788 SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.
..
A Mills Company Ltd. v. Guruvammal and Another, (1967) 2 LLJ 297,
approved

2.1. The respondent being a probationer has got no substantive
right to hold the post and was not entitled to a decree of declaration as
B erroneously granted by the lower Courts and also of the High Court.

2.2. It is also settled that the employees of the Corporation are not
civil servants and, therefore, they are not entitled to protection under
Article 311 of the Constitution of India. Their terms of appointment is
governed by the letter of appointment and, therefore, the -management
C was well within its right to terminate the services of the respondent-
probationer during of probation if his services were not found to be
satisfactory during the said period.

Commodore Commanding, Southern Nova[ Area, Cochin v. V.N. Rajan,
AIR (1981) SC 965 and Oil and Natural Gas Commission and Others v.
D Dr. Md. Jskander Ali, (1980) 3 sec 428, followed.

3. The termination order in the instant case would clearly show that
the misconduct on the part of the workman-respondent is not the foun-
dation of the order of discharge. For an order to be 'founded' on
misconduct, it must be intended to ,chastise or cause pain in body or
E mind or harm or loss in reputation or money to the concerned worker.
Such an intention cannot be spelled out of the present order of dis-
charge. It cannot be regarded as an order of dismissal. Such would be
the case when the employer orders discharge in the interests of the
Corporation. So, the real criterion which formed the touchstone ofa test
to determine whether an order of termination of services is an order of
F services is an order of discharge simpliciter or amounts to dismissal is
the real nature of the order, that is, the intention with which it was
passed.

4.1. The services of the respon.dent were terminated simpliciter and
G does not contain any stigma and, therefore, there was no requirement
under the law to hold any enquiry before terminating the services.

Commodore Commanding, Sauthern Naval Area, Cochin v. VN. Rajan,
AIR (1981) SC 965; Shamsher Singh & Anr. v. State of Punjab, [1975] 1
SCR 814 and Oil and Natural Gas Commission and Others v. Dr. Md
H Jskander Ali, (1980) 3 sec 428, followed.
RAJASTHAN STATE ROAD TRANSPORT CORPORATION v. ZAKIR HUSSAIN 789

Ravindra Kumar Misra v. UP. State Handloom Corporation Ltd. & A
Anr., Jt. (1987) 4 SC 105; Champaklal Chimanlal Shah v. The Union of
India, AIR (1964) SC 1864; Radhey Shyam Gupta v. State Agro Industries
Corporation Ltd. Anr., [1999] 2 SCC 21 and State of Punjab and Others
v. Bhagwan Singh, JT (2001) Suppl. SC 7, relied on.
B
Jagdish Mittar v. Union of India, (1964) 1 LLJ 418 and Benjamin
(A.G.) v. Union of India, (1967) 1 LLJ 718, referred to.

4.2. Even otherwise, the respondent has not led any evidence before
the trial court except his own ipsi dixit to show that his services were
terminated on the ground of any alleged misconduct. Therefore, it was c
not obligatory on the part of the Corporation to hold an enquiry before
terminating the services. [810-D-E]

4.3. In view of the fact that the respondent was appointed on
probation and the services were terminated during period of probation D
simpliciter as the same were not found to be satisfactory, the appellant-
Corporation is not obliged to hold an enquiry before terminating the
services. [805-F-G]

Oil and Natural Gas Commission and Others v. Dr. Md. lskander Ali,
AIR (1980) SC 1242, followed. E
Champaklal Chimanlal Shah v. The Union of India, AIR (1964) SC
1864; State ofUttar Pradesh & Anr. v. Kaushal Kishore Shukla, JT (1991;
I SC 108; K. V. Krishnamani v. La/it Kala Academy, [1996] 5 SCC 89 and
Kunwar Arun Kumar v. UP. Hill Electronics Corporation Ltd. and Ors.,
relied on. F
CIVIL APPELLATE JURISDICTION Civil Appeal No. 5176 of
2005.

From the Judgment and Order dated 24.9.2002 of the Rajasthan High
Court in S.B.C.S.A. No. 239 of 1997.
G

Sushi! Kumar Jain, A.P. Dhamija and Sarad Singhania for the
Appellants.

Anis Ahmed Khan and S. Ahmed Khan for the Respondent. H
790 SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A The Judgment of the Court was delivered by

DR. AR. LAKSHMANAN, J. : Leave granted.

The present appeal is directed against the final judgment and order
B dated 24.09.2002 passed by the High Court of Judicature for Rajasthan,
Jaipur Bench, Jaipur in S.B. Civil Second Appeal No. 239of1997 whereby
the High Court has dismissed the second appeal filed by the appellant-
Corporation.

The respondent was appointed as conductor on daily wages with the
C Rajasthan State Road Transport Corporation. He was appointed as conduc-
tor on probation for a period of two years. The services of the respondent
were terminated on 08.05.1984 as the same were not found to be satisfac-
tory. Necessary compensation was paid to the respondent as per the rules
of the Corporation vide Order No. 297. Against the o.der of termination,
D the respondent-plaintiff filed an appeal before the appellate authority, which
was dismissed on 22.10.1984.

The respondent filed a suit for declaration in the Court of Additional
Munsiff, Jaipur alleging that the order of termination dated 08.05 .1984 and
the order of the appellate Authority dated 22.10.1984 being illegal, bad in
E _ law and against the principles of natural justice and, therefore, is liable to
be set aside and that the respondent-plaintiff is entitled to continue in service
without any break.

It was further alleged that the services of the respondent were termi-
F nated simpliciter but in fact, the same were terminated on the basis of the
remarks made by the checking staff on 01.05.1984 when the respondent was
on duty. The trial Court framed four issues. Issue No. 2 relates to the
jurisdiction of the Civil Court to entertain and try the suit. The trial Court
held that since the services of the respondent have been terminated on the
basis of the remarks without holding any enquiry, the order dated 08.05.1984
G terminating the services of the respondent and the order passed by the
appellate Authority dated 20.10.1984 dismissing the appeal are illegal and
against the principles ofnaturaljustice. Accordingly, the trial Court set aside
the above two orders. The trial Court finally passed the following order:-

H "In the result, it is ordered that the suit of the plaintiff is decreed
-
RAJASTHAN ST ATE ROAD TRANSPORT CORPORATION v. ZAKlR HUSSAIN [LAKSHMANAN, J.] 791

against the defendant. It is declared that the order No. 297 dated A
08.05.1984 passed by the defendant terminating the services of the
plaintiff, and the order passed by the Appellate authority dated
20.10.1984 dismissing the appeal is illegal, bad in law and against
the principle of natural justice, therefore, is set aside. It is further
declared that the plaintiff would be entitled to continue in service B
without any break and would also be entitled to rll the monetary
benefits and allowances, as he would have been entitled while
continuing in service."

Aggrieved by the order passed by the trial Court, the appellant-Cor-
poration filed an appeal before the District Judge, Jaipur City, Jaipur being c
Civil Regular Appeal No. 138of1989. The said Court dismissed the appeal.
The second appeal filed by the Corporation before the High Court was also
dismissed on 24.09.2002. The High Court declined to interfere with the
orders passed by the lower Courts since there is concurrent finding of fact
by both the Courts below and that no substantial question of law arises. D
Being aggrieved, the appellant-Corporation preferred the present Special
Leave Petition No. 5978 of2003 questioning the correctness of the orders
passed by the Courts below and of the High Court particularly on the
question of jurisdiction of the Civil Courts to entertain and try the suit in
respect of an industrial dispute. E

We heard Mr. Sushi! Kumar Jain, learned counsel for the appellant and
Mr. Anis Ahmed Khan, learned counsel for the respondent. We hav< been
taken through the relevant pleadings, documents and annexures
filed along with the appeal and also of the case laws cited by the
counsel appearing on either side at the time of hearing. Mr. Sushi! Kumar F
Jain, learned counsel for the appellant-Corporation submitted as
follows: -

I. That the dispute between the parties being an industrial dispute,
the Civil Court has no jurisdiction to entertain and try the suit; G

2. That the respondent was appointed on probation and the services
were terminated during the period of probation; it was not obliga-
tory on the part of the Corporation to hold an enquiry before
tef'Ilinating the services;
H
792 SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A 3. That the respondent was only an employee of the Corporation and
not a Government servant and has got no protection under Article
311 (2) of the Constitution of India;

4. That the respondent was not entitled to back wages on the prin-
B ciple of 'No Work, No Pay'.

Mr. Anis Ahmed Khan, learned counsel for the respondent submitted
that a notice dated 05.05.1984 was given to the respondent in which a
remark for carrying 11 passengers without ticket was mentioned and that
the appellant-Corporation neither conducted any departmental enquiry nor
c gave the respondent an opportunity of being heard. Thus the termination
order was illegal, unlawful and contrary to the principles of natural justice.

He invited our attention to the relevant discussion by the trial Court
on this point. Citing the judgment of this Court in Rajasthan State Road
D Transport Corporation and Anr. Etc. v. Krishna Kant Etc. Etc. reported in
[1995] 3 SCR 1118, learned counsel submitted that in the present case the
decree in favour of the respondent has been passed by the trial Court on
28.07.1989 and that the appellant-Corporation filed an appeal before the
District Court on 27 .09 .1989 which was pending prior to the judgment in
Krishna Kant (supra). Thus, the entire judicial pronouncement of this Court
E favours the respondent and disfavours the appellant herein. He invited our
attention to the two passages from the above judgment which are reproduced
hereunder:-

"These principles enunciated in this judgment shall apply to all
F pending matters except where decrees have been passed by the trial
court and the matters are pending in appeal and second appeal, as
the case may be."

"These orders are made in view of the fact, that position of law was
not clear until now and it can not be said that the respondents had
G not acted bonafide in instituting the suits."

It was further submitted that the services of the respondent had not
been terminated simpliciter, a remark against the respondent on the way bill
was made which led to the termination of his services without enquiry.
H Therefore, the termination of the respondent was punitive and penal in
RAJAS THAN ST ATE ROAD TRANSPORT CORPORATION v. ZAKIR HUSSAIN [LAKSHMANAN, J.J 793

nature and by lifting the veil a little, it manifests that the appellant has tried A
to camouflage the punitive order of termination by the cover of termination
simpliciter but has failed. Learned counsel cited the case of The Manage-
ment of Utkal Machinery ltd. v. Workman, Santi Patnaik, AIR (1966) SC
I051 in this regard.

Jurisdiction of Civil Courts in Industrial Dispute
B

We shall first take up the question which relates to the jurisdiction of
the Civil Courts in the industrial matters. The respondent was appointed by
the appellant-Corporation on daily wages to the post of conductor. He was
put on probation for a period of two years vide Order No. 225 dated
28.03 .1984. According to the respondent, he has been working carefully and
c
honestly and continuously. However, his services were terminated without
complying with Section 35 of the Standing Orders and without conducting
any enquiry and without affording an opportunity of being heard vi de order
No. 207 dated 08.05.1984. The appeal preferred against the order of termi-
nation was also dismissed on 20.10.1984 by the appellate Authorities. A D
civil suit was, therefore, filed by the respondent to declare that the order of
termination being illegal and unconstitutional are liable to be set aside and
that the respondent is entitled to continue on the post of the conductor and
is entitled to get wages, allowances and other monetary benefits till the relief
is given by the Corporation. The appointment order has been filed and E
marked as Annexure-P5. It is seen from the appointment order that the
respondent and several others were appointed as conductors on probation
for a period of two years subject to several conditions mentioned in the order
of appointment. It is also mentioned that the services of the respondent will
be governed by the Standing Orders of the Rajasthan State Road Transport
Corporation, Workshop Employees. Two things are clear from the appoint- F
ment order, (a) the order of appointment is purely on adhoc basis and (b)
the respondent was appointed as a daily wage employee and that the pro-
bation is for a period of two years.

Premier Automobiles limited v. Kamalakar Shantaram Wadke and Ors.,
G
(1975) 2 LLJ 445 (Three Judges Bench) is a leading authority on jurisdiction
of civil courts in industrial disputes. This Court, after elaborate discussion,
held as under:

"The principles applicable to the jurisdiction of the civil Courts
in relation to an industrial dispute may be stated thus: H
794 SUPREME COURT REPORTS (2005] SUPP. 2 S.C.R.

A ( 1) If the dispute is not an industrial dispute, nor does it relate to
enforcement of any other right under the Act, the remedy lies
only in the civil Court.

(2) If the dispute is an industrial dispute arising out of a right or
liability under the general or common law and not under the
B
Act, the jurisdiction of the Civil Court is alternative, leaving
it to the election of the suit or concerned to choose his remedy
for the relief which is competent to be granted in a particular
remedy.

c (3) If the industrial dispute relates to the enforcement of a right
or an obligation created under the Act, then the only remedy
available to the suitor is to get an adjudication under the Act.

(4) Ifthe right which is sought to be enforced is a right created
under the Act, such as chapter VA, then the remedy for its
D
enforcement is either S. 33C or the raising of an industrial
dispute as the case may be.

In relation to principle No. 2 stated above, their Lordships feel there
will hardly be a dispute which will be an industrial dispute within
E the meaning of S.2 (K) and yet will be one arising out of a right
or liability under the general or common law only and not under
the Act. Such a contingency, for example, may arise in regard to
dismissal of an unsponsored workman which in view of the pro-
vision of law contained in S. 2A will be an industrial dispute. Civil
F Courts, therefore, will have hardly an occasion to deal with the type
of cases falling under principle 2. Cases of industrial disputes, by
and large, are invariably bound to be covered by principle 3 stated
above."

Rajasthan State Road Transport Corporation And Anr. Etc. v. Krishna Kant
G Etc. Etc, [ 1994] Supp 1 SCC 268: In this case, the appellant Transport
Corporation, constituted under the Road Transport Corporation Act, 1950
contended before this Court that the suits filed by the respondent-employees
impugning the termination of their services for misconduct on the ground
of contravention of standing orders were barred and that the only remedy
H available to the respondents was a reference of the dispute for adjudication
RAJASTHAN STATE ROAD TRANSPORT CORPORATION v. ZAKIR HUSSAIN [LAKSHMANAN. J.) 795

to a Labour Court. This Court held as under: A

"The instant cases are governed by the decision in Jitendra Nath
Biswas case and in accordance with the said decision it must be held
that the jurisdiction of the civil courts is excluded. It may be stated
that from the point of view of the workmen also the remedy of B
adjudication available under the Act would be more beneficial to
them than that of a civil suit inasmuch as the civil court cannot grant
the reliefof reinstatement which relief can be granted by the Labour
Court/Industrial Tribunal. But in view of the constraint placed by
the Order dated October 18, 1989 in SLP No. 9386 of 1988 passed
by a two-Judge Bench of the Supreme Court it is appropriate that C
the matter be heard by a Bench of three-Judges."

Pursuant to the above order, all the appeals were placed before a Bench
comprising of Three Judges. This Court summarized the principles flowing
from the discussion made by them in Rajasthan State Road Transport D
Corporation And Anr. v. Krishna Kant and Others, reported in [1995] 5 SCC
75.

"(!) 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 E
maintainable, even though such a dispute may also constitute
an "industrial dispute" within the meaning of Section 2(k) or
Section 2-A of the Industrial Disputes Act, 1947.

(2) Where, however, the dispute involves recognition, observ- F
ance or enforcement of any of the rights or obligations created
by the Industrial Disputes Act, the only remedy is to approach
the forums created by the said Act.

(3) Similarly, where the dispute involves the recognition, observ-
ance or enforcement of right and obligations created by en- G
actment like Industrial Employment (Standing Orders) Act,
1946 - which can be called "sister 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 H
796 SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A constitute industrial disputes within the meaning of Section
2(k) and Section 2-A of Industrial Disputes Act or where such
enactment 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. Other-
B wise, recourse to civil court is open.

(4) It is not correct to say that the remedies provided by the
Industrial Disputes Act are not equally effective for the reason
that access to t_he forum depends upon a reference being made
by the appropriate Government. The power to make a refer-
c ence conferred upon the Government is to be exercised to
effectuate the object of the enactment and hence not unguided.
The rule is to make a reference unless, of course, the dispute
raised is a totally frivolous one exfacie. The power conferred
is the power to refer to refer and not the power to decide,
though it may be that the Government is entitled to examine
D
whethei: the dispute is ex facie frivolous, not meriting an
adjudication.

(5) Consistent with the policy of law aforesaid, we recommend
to Parliament and the State Legislatures to make a provision
E enabling a workman to approach the Labour Court/Industrial
Tribunal directly- i.e., without the requirement of a reference
by the Government-in case of industrial disputes covered by
Section 2-A of Industrial Disputes Act. This would go a long
way in removing the misgivings with respect to the effective-
ness of the remedies provided by the Industrial Disputes Act.
F
(6) The certified Standing Orders framed under and in accord-
ance 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 provisions". Any violation of
G
these Standing Orders entitles an employee to appropriate
relief either. before the forums created by the. Industrial Dis-
putes Act or the civil court where recourse to civil court is
open according to the principles indicated herein.

H (7) The policy of law emerging from Industrial Disputes Act and
RAJAS THAN ST ATE ROAD TRANSPORT CORPORATION v. ZAKIR HUSSAIN [LAKSHMANAN. J.] 797

its sister enactments is to provide an alternative dispute-reso- A
lution mechanism to the workmen, a mechanism which is
speedy, inexpensive, informal and unencumbered by the
plethora of procedural laws and appeals upon appeals and
revisions applicable to civil courts. Indeed, the powers of the
courts and tribunals under the Industrial Disputes Act are far B
more expensive in the sense that they can grant such relief as
they think appropriate in the circumstances for putting an end
to an industrial dispute."

Applying the above principles, this Court held that the suits filed by the
employees of the Corporation were not maintainable in law. However, c
considering the peculiar facts and circumstances of the case, this Court
declined to set aside the decree concerned in the appeals. This Court, having
regard to the facts and circumstances of those matters, modified the decrees
in those matters by reducing the back wages to half. This Court also has
further observed that these orders are made in view of the fact that the D
position of law was not clear until now and it cannot be said that the
respondents had not acted bona fide in instituting the suits and disposed of
the appeals accordingly in the peculiar facts and circumstances of the case.
We have already reproduced the principles laid down in para 35 (supra).
Applying the above principles, this Court has categorically held that the suits
filed by the respondents in the appeals were not maintainable in law. E

UP. State Bridge Corporation Ltd. And Others v. UP. Rajya Setu
Nigam S. Karamchari Sangh, [2004] 4 SCC 268.

The appellant, in this case, is a Government Construction Company F
within the meaning of Section 617 of the Companies Act. The terms and
conditions of employees of the appellant were governed by standing orders
certified under the U.P. Industrial Employment (Standing Orders) Rules,
1946. According to the appellant, despite repeated notices, the workmen
continued to absent themselves and ultimately on 19.0 l. l 996 an order was
issued putting an end to the services of the 168 workmen that they had G
abandoned their services with the appellant Corporation on their own. One
of the workmen whose services were so terminated filed a writ petition in
the High Court challenging the order of termination. The writ petition was
dismissed on the ground that the workman could raise an industrial dispute
if he so desired. A second writ petition was filed by the respondent Union H
798 SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A in the High Court which was allowed. The appeal filed by the Corporation
was rejected by the Division Bench. This Court allowed the appeals filed
by the appellant Corporation. Ruma Pal, J. (one of us) speaking for the
Bench after referring to the judgments cited and, in particular, Rajasthan
State Road Transport Corporation And Anr. v. Krishna Kant and Others,
B 1995 (5) sec 75 and Premier Automobiles Limitedv. Kamlakar Shantaram
Wadke and Ors., [1975] 2 LU 445 (Three Judges Bench) observed in para
12 as follows: -

"Although these observations were made in the context of the
jurisdiction of the civil court to entertain the proceedings relating
c to an industrial dispute and may not be read as a limitation on the
Court's powers under Article 226, nevertheless it would need a
very strong case indeed for the High Court to deviate from the
principle that where a specific remedy is given by the statute, the
person who insists upon such remedy can avail of the process as
provided in that statute and in no other manner."
D
It was further observed in paras 14, 15 and 17 as under:

"It is an established practice that the Court exercising extraordinary
jurisdiction under Article 226 shouJd have refused to do so where
there are disputed questions of fact.
E
In the present case, the nature of the employment of the workmen
was in dispute. This was an issue which should have been resolved
on the basis of evidence led. The Division Bench erred in rejectfog
the appellant's submission summarily as also in placing the onus
F on the appellant to produce the appointment letters of the respond-
ent workmen. There was also a dispute as to the nature of the
absence of the respondent workmen. Significantly, the High Court
has not relied upon the correspondence said to have been ex-
changed between the parties with regard to the demands raised by
the respondent Union nor has it come to any decision on the
G question whether the strike in question was illegal or legal. In fact
the High Court has proceeded on the basis that it was the accepted
case that there was no notice given by the workmen that they were
on strike. It cannot, therefore, be said, without more, that the
absence of the respondent workmen from work was because they
H were on strike.
RAJASTHAN STATE ROAD TRA.NSPORT CORPORATION''· ZAKlR HUSSAIN [LAKS!il'>.fANAN, J J 799

Doubtless the issue of alternative remedy should be raised and A
decided at the earliest opportunity so that a litigant is not prejudiced
by the action of the Court since the objection is one in the nature
of a demurrer."

In the case of Krishnan and Another v. East India Distilleries and Sugar B
Factories ltd., Nellikuppam and Another reported in (1964) (1) LU 217,
a learned Single Judge of the Madras High Court has held that the jurisdic-
tion of the Civil Court is ousted impliedly to try a case which could form
subject-matter of an industrial dispute collectively between the workmen
and their employer.
c
In the case of Madura Mills Company, limited v. Guruvammal and another
(1967) 2 LU 297, a learned Single Judge of the Madras High Court has
pointed out that the Act creates a special machinery under Section 33C (2)
to enforce specially created rights and that the parties could not, therefore,
approach the ordinary Civil Court. This Court affirmed the above two D
decisions of the Madras High Court in the judgment reported in Premier
Automobiles ltd. (supra) (para 26).

In Jitendra Nath Biswas v. Mis Empire of India and Ceylone Tea Co.
and Another, [ 1989] 3 SCC 582, this Court held as under:
E
"The scheme of the Industrial Disputes Act clearly excludes the
jurisdiction of the civil court by implication in respect of remedies
which are available under this Act and for which a complete pro-
cedure and machinery has been provided in this Act.
F
In so far as the appellant is concerned, the Industrial Disputes Act
not only confers the right on a worker for reinstatement and back
wages if the order of termination or dismissal is not in accordance
with the Standing Orders but also provides a detailed procedure and
machinery for getting this relief. Under these circumstances there-
fore there is an apparent implied exclusion of the jurisdiction of the G
civil court.

It cannot be contended that merely because the conciliation officer
has discretion to proceed or not and that after his report the gov-
ernment may make a reference or not, the jurisdiction of civil court H
800 SUPREME COURT REPORTS [2005) SUPP. 2 S.C.R.

A is not impliedly barred. The discretion cannot be exercised arbitrar-
ily and there is remedy against improper refusal to exercise the
discretion."

This Court further held that the Industrial Disputes Act not only confers the
B right on a worker for reinstatement and back wages if the order of termi-
nation or dismissal is not in accordance with the Standing Orders but also
provides a detailed procedure and machinery for getting this relief. Under
these circumstances, there is an apparent implied exclusion of the jurisdic-
tion of the civil court.

c The case of Rajasthan State Road Transport Corporation v. Krishan
Kant above was relied upon by this Court in the case of B.S. Bharti v. IBP
Co. Ltd. reported in (2004) 7 SCC 550 and Chandrakant Tukaram Nikam
and Ors. v. Municipal Corpn. of Ahmedabad and Anr. reported in [2002)
2 sec 542.

D In B.S. Bharti v. IBP Co. Ltd., [2004) 7 SCC 550, this Court held as
under:

"The appellant was a probationer in the employment of the re-
spondent Company. At the end of his extended probation period,
E finding his performance not to be satisfactory, the respondent ter-
minated his service on 24-1-1974. The appellant sought to raise an
industrial dispute challenging his termination but on 1-1-1975, the
appropriate Government refused to make a reference. The appellant
then filed a civil suit challenging his termination and claiming
arrears of salary. The trial court decreed the suit. But, following
F Rajasthan SRTC case, (supra), the Delhi High Court set aside that
decree. The appellant then filed the present appeal.

Referring to para 37 of Rajasthan SRTC case, the appellant
contended before the Supreme Court that the principle of relief
G enunciated therein ought to have been extended to the appellant and
the decree of the trial court ought to have been upheld.

Rejecting the appellant's contention and dismissing the ap-
peal, this Court held:

H The prayer of the appellant to refer the dispute to the Industrial
RAJASTHAN STATE ROAD TRANSPORT CORPORA TIO!\'.>'. ZAKIR Hl1SSAIN [LAKSI-L\JANAN, J ] 80 j

Tribunal/Labour Court was refused by the appropriate Government A
on 1-1-1975. The appellant did not challenge that order till date.
He filed a suit in the year 1975 without making an effort to get his
dispute settled through the provisions of the Industrial Employment
(Standing Orders) Act, 1946, which was applicable to him and the
remedy for which was under the Industrial Disputes Act which in B
terms clearly prohibited maintainability of a civil suit."

In Chandrakant Tukaram Nikam & Ors. v. Municipal Corpn. of
Ahmedabad and Anr. reported in (2002] 2 SCC 542, this court held as
under:-
c
"The Industrial Disputes Act was enacted by Parliament to provide
speedy, inexpensive and effective forum for resolution of disputes
arising between workmen and the employers, the underlying idea
being to ensure that the workmen do not get caught in the labyrinth
of civil courte which the workmen can ill-afford. The procedures D
followed by civil courts are too lengthy and consequently, are not
an efficacious fOrum for resolving the industrial disputes speedily.
The power of the Industrial Courts also is wide and such forums
are empowered to grant adequate relief as they think just and
appropriate. It is in the interest of the workmen that their disputes,
including the dispute of illegal termination are adjudicated upon by E
an industrial forum. The legality of the order of termination passed
by the employer will be an industrial dispute within the meaning
of Section 2(k) and under Section 17, every award of the Labour
Court, Industrial Tribunal or National Tribunal is required to be
published by the appropriate government within a period of thirty F
days from the date of its receipt and such award published under
Section I 7(1) is held to be final. Therefore, having regard to the
relief sought for in the suits filed in the civil court, it has to be held
that in such cases the ju"risdiction of the civil court is impliedly
barred and the appropriate forum for resolution of such dispute is
the forum constituted under the Industrial Disputes Act." G

It is a well settled principle of law as laid down by this Court that if
the Court has no jurisdiction, the jurisdiction cannot be conferred by any
order of Court. This Court in the case of A.R. Antulay v. R.S. Nayak &
Another reported in AIR (I988) SC 153I paras 40 to 42 wherein it is, inter H
802 SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A alia, held and observed as under:-

"40 ........ This Court, by its directions could not confer jurisdiction
on the High Court of Bombay to try any case when it did not possess
such jurisdiction."
B
41 ......... The power to create or enlarge jurisdiction is legislative in
character. .. Parliament alone can do it by law and no Court, whether
superior or inferior or both combined can enlarge the jurisdiction
of a court or divest a person of his rights of revision and appeal. ... "

c 42 ....... But the superior Court can always correct its own error
brought to its notice either by way of petition or ex de bi to justitiae.
See Rubinstein's Jurisdiction and Illegality' (supra)"

In the instant case, the respondent was appointed as a conductor purely
D on ad hoc basis for a period of two years. It is not in dispute that the appellant
is governed by the Standing Orders of the Rajasthan State Road Transport
Corporation, Workshop Employees and also governed by the terms of
appointment.

This apart, the respondent has placed reliance on the standing order
E and, therefore, the only remedy available to the respondent was by way of
reference under the provisions of the Industrial Disputes Act.

Appointment on Ad-hoc Basis-Termination:-

In Ravindra Kumar Misra v. UP. State Handloom Corporation Ltd.
F
& Anr., JT 1987 (4) SC 105, this Court was considering termination of a
service of a temporary employee. This Court held in paras 11 and 12 as
under:-

"Keeping in view the principles indicated above, it is difficult to
G accept the claim of the appellant. He was a temporary servant and
had no right to the post. It has also not been denied that both under
the contract of service as also the Service Rules governing him the
employer had the right to terminate his services by giving him one
month's notice. The order to which exception is taken is expressly
an order of termination in innocuous tt:rms and does not cast any
H
RAJAS TH A~ STATE ROAD TRANSPORT CORPORATION\'. ZAKlR HUSSAIN [LAKSHMANAN J J 803

stigma on the appellant nor does it visit with any evil consequences. A
It is also not founded on misconduct. In the circumstances, the
order is not open to challenge.

We may point out that the learned Solicitor General appearing for
the Corporation had at the commencement of the arguments sug- B
gested that the appellant could be given some compensation for
termination. Ordinarily, under the law he would not be entitled to
compensation in a case of this type, but since he has been put out
of employment at an advanced age and it may be difficult for him
to get an alternate employment, while dismissing his appeal we
think it reasonable to call upon the Corporation to pay a consoli- C
dated amount ofRs.25,000 (Rupees Twenty-five Thousand only)."

Conunodore Co111111anding, Southern Naval Area, Cochin v. V.A'. Rajan, AIR
(1981) SC 965 (three Judges): This case deals with a temporary Government
servant \Vhose services were tenninated on the ground of unsuitability for D
the post. This Court ob~erved as follows:-

"Where the decision to terminate the services of the servant had
been taken at the highest level on the ground of unsuitability of the
servant in relation to the post held by him and it was not by way
of any punishment and no stigma was attached to him by reason E
of the termination of his services, termination could not be said to
be vitiated for non-observance of Art. 311 (2)."

In State ofUttar Pradesh & Anr. v. Kaushal Kishore Shukla, JT (1991)
I SC I 08, this Court has observed in para 6 as under: p

"The High Court held that the termination of respondent's services
on the basis of adverse entry in the character roll wcs not in good
faith and the punishment imposed on him was disproportionate. It
is unfortunate that the High Court has not recorded any reasons for
this conclusion. The respondent had earned an adverse entry and G
complaints were made against him with regard to the unauthorised
audit of the Boys Fund in an educational institution, in respect of
which a preliminary inquiry was held and thereupon, the competent
authority was satisfied that the respondent was not suitable for the
service. The adverse entry as well as the preliminary inquiry report H
804 SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A with regard to the complaint of unauthorised audit constituted
adequate material to enable the competent authority to form the
requisite opinion regarding the respondents suitability for service.
Under the service jurisprudence a temporary employee has no right
to hold the post and his services are liable to be terminated in
accordance with the relevant service rules and the terms of contract
B
of service. If on the perusal of the character roll entries or on the
basis of preliminary inquiry on the allegations made against an
employee, the competent authority is satisfied that the employee is
not suitable for the service whereupon the services of the temporary
employee are terminated, no exception can be taken to such an
c order of termination."

The respondent in the instant case is a temporary employee of the Rajasthan
State Road Transport Corporation on probation for a period of two years.
His services were terminated by an order of termination simpliciter. The
D order, in our opinion, is innocuous without any stigma nor evil consequences
visiting him. In our view, the order is not open to challenge.

Oil and Natural Gas Commission and Others v. Dr. Md. S. lskander Ali,
AIR (1980) SC 1242 (Three Judges): In this case, the respondent was
appointed on a purely temporary basis to the post of a Medical Officer in
E the Oil and Natural Gas Commission.·Under the terms and conditions of his
service, he was to remain on probation for a period of one year which could
be extended at the discretion of the appointing Authority. This Court ob-
served as under:-

F "Where the short history of the service of the probationer appointed
in a temporary post clearly showed that his work had never been
satisfactory and he was not found suitable for being retained in
service and that was why even though some sort of an enquiry was
started, it was not proceeded with and no punishment was inflicted
on him and in these circumstances, if the appointing authority
G considered it expedient to terminate the services of the probationer
it could not be said that the order of termination attracted the
pruvisions of Article 311, when the appointing authority had the
right to terminate the service without assigning any reasons. In such
a case even if misconduct, negligence, inefficiency might be the
H motive or the inducing factor which influenced the employer to
RAJASTHAJ\'. STATE ROAD TRANSPORT CORPORATION 1·. ZAK JR Hl/SSAIT\I [LAKSHMAN ..\N, J] 805

terminate the services of the employee a power which the employer A
undoubtedly possessed, even so as under the terms of appointment
of the employee such a power flowed from the contract of service,
termination of service could not be termed as penalty or punish-
ment. Further adverse remarks in the assessment roll and recotn-
mendation therein to extend the probationary period could not be
B
said to indicate that the intention of the appointing authority was
to proceed against the employee by way of punishment."

Gujarat Steel Tubes Ltd. And Others v. Gujarat Steel Tubes Mazdoor
Sabha and Others, (1980] 2 SCC 593 (Three Judges).
c
The termination order in the instant case would clearly show that the
misconduct on the part of the workman-respondent is not the foundation of
the order of discharge. For an order to be 'founded' on misconduct, it must,
be intended to have been passed by way of punishment, that is, it must be
intended to chastise or cause pain in body or mind or harm or loss in D
reputation or money to the concerned worker. Such an intention cannot be
spelled out of the present order of discharge. It cannot be regarded as an
order of dismissal. Sue!: would be the case when the employer orders
discharge in the interests of the Corporation. So, the real criterion which
fonned the touchstone of a test to determine whether an order of termination
of services is an order of discharge simpliciter or amounts to dismissal is E
the real nature of the order, that is, the intention with which it was pJssed.

The respondent is a temporary employee of the CorporatlOn and a
probationer and not a Government servant and, therefore, is not entitled for
any protection under Article 311 of the Constitution. He was a party to the F
contract. In view of the fact that the respondent was appointed on probation
and the services were terminated during the period of probation simpliciter
as the same were not found to be satisfactory, the appellant-Corporation is
not obliged to hold an enquiry before terminating the services. The respond-
ent being a probationer has got no substantive right to hold the po~t and was
not entitled to a decree of declaration as erroneously granted by the lower G
Courts and also of the High Court.

Object of Industrial Disputes Act:

The object of the Industrial Disputes Act, as its preamble indicates, is H
806 SUPREME COURT REPORTS [2005) SUPP. 2 S.C.R.

A to make provision for the investigation and settlement of industrial disputes,
which means adjudication of such disputes also. The act envisages collective
bargaining, contracts between union representing the workmen and the
management, a matter which is outside the realm of the common law or the
Indian law of contract. The expression "industrial dispute" is defined in S.
B 2(k) to say that:

"industrial dispute" means any dispute or difference between em-
ployers 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
c with the conditions of labour, of any person;"

Section 2(p) gives the definition of the word "settlement" thus:

'"settlement' means a settlement arrived at in the course of con-
D ciliation proceeding and includes a written agreement between the
employer and workmen arrived at otherwise than in the course of
conciliation proceeding where such agreement has been signed by
the parties thereto in such manner as may be prescribed and a copy
thereof has been sent to an officer authorised in this behalf by the
appropriate Government and the conciliation officer;"
E
The Act also provides for constitution of various committees and conferred
extensive powers on different kinds of authorities in the matter of settlement
of adjudication of industrial disputes. It also provide remedies under Section
10, 12, 18, 19 and 31(2), 33 (1) (a), 33C (1) and 33C (2).
F
WHETHER THE ORDER OF TERMINATION IN THE PRESENT MATTER
WHERE THE RESPONDENT WAS ON PROBATION CAN BE HELD TO
BE INVALID?

The order of termination in the present case is termination simpliciter
G order and does not amount to any stigma. In this respect following cases
are important:

(i) This Court in the case of Champaklal Chimanlal Shah v. The Union
of India reported in AIR (1964) SC 1854 at page 1862 in para 13 has held
H and observed:-
R.,V ..\STHAN STATE ROAD TRA'\/SPORT CORPORATION r. ZAKIR HUSSAI:\ [LAKSH\1ANAN, J] 807

" ........ The mere fact that some kind of preliminary enquiry is held A
against a temporary servant and following that enquiry the services
are dispensed with in accordance with the contract or the specific
service rules (e.g. R.5 in this case) would not mean that the termi-
nation of service a1nounted to infliction of punishment of dis1nissal
or removal within the meaning of Article 311 (2) ........ " B
(ii) This Court in the case of Shamsher Singh & Anr. v. State of Punjab
reported in [1975] l SCR 814 (7 Judges Bench) has held and observed as
under:-

"The fact of holding an enquiry is not always conclusive. What is C
decisive is whether the order is really by way of punishment... A
probationer whose terms of service provided that it could be ter-
1ninated without any notice and without any cause being assigned
could not claim the protection of Article 31 l (2)."
D
(iii) This Court in the case of Oil and Natural Gas Commission and
Others V. Dr. Md. s. lskender Ali reported in (1980) 3 sec 428 in para 3
of the said matter shows that in the said matter departmental enquiry was
initiated against the employee concerned but the employer neither pro-
ceeded with the inquiry not imposed punishment and the order of termina-
tion si1npliciter was passed. This Court after considering various cases in E
para 12 (at Page 434) has held:-

"12. The facts of the present case appear to be on all fours with those
of the aforesaid decision. From the undisputed facts detailed by us in an
early part of the judgment, it is manifest that even if misconduct, negligence, F
inefficiency may be the motive or the inducing factor which influences the
employer to terminate the services of the employee, a power which the
appellants undoubtedly possessed, even so as under the terms of appoint-
ment of the respondent such a power flowed from the contract of service
it could not be termed as penalty or punishment."
G
(iv) This Court in the case of K. V. Krishnamani v. La/it Kala Academy
reported in [ 1996] 5 sec 89 in para 4 at page 90 has held and observed:-

" .... They have explained that the driving of the staff car was not
satisfactory and that, therefore, they have terminated the services H
808 SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A of the appellant during probation. The very object of the probation
is to test the suitability and if the appointing authority finds that
the candidate is not suitable, it certainly has power to terminate the
services of the employee. Under these circumstances, it cannot but
be held that the reasons mentioned constitute motive and not foun-
B dation for termination of service .... "

(v) This Court in the case of Kunwar Arun Kumar v. UP. Hill Electron-
ics Corporation Ltd. And Ors. reported in [ 1997] 2 SCC 191 at page 193
has held and observed as under:-

c " ...... Under these circumstances, necessarily the appointing author-
ity has to look into the performance of the work and duties during
the period of probation and if they record a finding that during that
probation period, the work and performance of the duties were
unsatisfactory, they are entitled to termincit~ the service in terms of
D the letter of appointment without conducting any enquiry. That
does not amount to any stigma .... "

(vi) This Court in the case of State of Punjab and Others v.
Bhagwan Singh reported in JT (2001) Suppl.I SC 7 in para 6 at page 9 has
held and observed as under:-
E
"6. Learned counsel for the r_espondent however, contended that the
reference in the impugned order to the reports of the inspectors on
the basis of which the above assessment was made, would itself
amount to stigma. This again cannot be accepted. The said refer-
F ence has also become necessary because the respondent was work-
ing under the said officers and it was their assessment that was
referred to and that was the source for the opinion expressed by the
competent authority to discharge the respondent. The learned Dis-
trict Judge and the High Court were, therefore in error in treating
that the removal order caused stigma."
G
(vii) This Court in the case of Radhey Shyam Gupta v. UP. State Agro
Industries Corporation Ltd. And Anr. reported in [1999] 2 SCC 21 in para
33 at page 35 has held and observed as under:-

H "33. It will be noticed from the above decisions that the termination
RAJASTHAN STATE ROAD TCNSPORT CORPORATION''· ZAKIR HliSSAfN [LAKSHMANAN, J J 809

of the services of a temporary servant or one on probation, on the A
basis of adverse entries or on the basis of an assessment that his
work is not satisfactory will not be punitive inasmuch as the above
facts are merely the motive and not the foundation. The reason
whey they are the motive is that the assessment is not done with
the object of finding out any misconduct on the part of the officer, B
as stated by Shah, J. (as he then was) in Ram Narayan Das case.
It is done only with a view to decide whether he is to be retained
or continued in service. The provision is not different even if a
preliminary enquiry is held because the purpose of a preliminary
enquiry is to find out if there is prima facie evidence or material
to initiate a regular departmental enquiry. It has been so decided C
in Champak/al case. The purpose of the preliminary enquiry is not
to find out misconduct on the part of the officer and if a termination
follows without giving an opportunity, it will not be bad. Even in
a case where a regular departmental enquiry is started, a charge-
memo issued, reply obtained, and an enquiry officer is appointed- D
if at that point of time, the enquiry is dropped and a simple notice
of termination is passed, the same will not be punitive because the
enquiry officer has not recorded evidence nor given any findings
on the charges. That is why is held in Sukh Raj Bahadur case and
in Benjan1in case. In the latter case, the departmental enquiry was
stopped because the employer was not sure of establishing the guilt E
of the employee. In all these cases, the allegations against the
employee merely raised a cloud on his conduct and as pointed by
Krishna Iyer, J. in Gujarat Steel Tubes case the employer was
entitled to say that he would not continue an employee against
whom allegations were made in truth of which the employer was F
not interest to ascertain. In fact, the employer by opting to pass a
simple order of termination as permitted by the terms of appoint-
ment or as permitted by the rules was conferring a benefit on the
employee by passing a simple order of termination so that the
employee would not suffer from any stigma which would attach to
the rest of his career if a dismissal or other punitive order was G
:. passed. The above are all examples where the allegations whose
truth has not been found, and were merely the motive."

(vii) In the matter of Jagdish Millar v. Union of India reported in (1964)
1 LLJ 4 I 8, this Court has placed reliance on the judgment of Constitution H
810 SUPREME COURT REPOR'i"S [2005] SUPP. 2 S.C.R.

A Bench in the case reported in (1967) (1) LLJ 718, Benjamin (A.G.) v. Union
of India [Constitution Bench] and the judgment of Champaklal mentioned
above.

It is settled law that where an Act creates an obligation and enforces the
B performance in a specified manner, the performance cannot be enforced in
any other manner.

It is seen from para 11 of the written statement that the management
has subsequently raised the jurisdiction of the Civil Court in deciding an
industrial dispute. Learned District Munsiff has also framed an issue in
c regard to the jurisdiction of the Civil Court to hear the suit. The same issue
was raised before the other forums. However, lower Courts and the High
Court has miserably failed to advert to this issue and failed to render a
satisfactory finding. As already noticed, the services of the respondent were
terminated simpliciter and does not contain any stigma and, therefore, there
D was no requirement under the law to hold any enquiry before terminating
the services. The Courts below have also committed serious error in granting
back wages along with reinstatement. Even otherwise, the respondent has
not led any evidence before the trial Court except his own ipsi dixit to show
that his services were terminated on the ground of any alleged misconduct.
Therefore, it was not obligatory on the part of the Corporation to hold an
.
E enquiry before terminating the services. It is also settled that the employees
of the Corporation are not civil servants and, therefore, they are not entitled
to protection under Article 311 of the Constitution of India. Their terms cf
appointment is governed by the letter of appointment and, therefore, the
management was well within its right to terminate the services of the
F respondent-probationer during the period of probation if his services were
not found to be satisfactory during the said period. The Courts below and
the High Court have committed serious error in decreeing the suit as prayed
for and for directing reinstatement with full back wages.

Learned counsel for the respondent placing strong reliance on the
G judgment in Rajasthan State Road Transport Corporation And Anr. v.
Krishna Kant and Others reported in [1995] 3 SCR 1118 submitted that •
since the decree has been passed by the trial Court on 28.07 .1989 and the
appeal filed by the Corporation was dismissed on 27.09.1989 which was
pending prior to the judgment reported in 1995 SCR (3) 1118, the respond-
H ent is right in approaching the civil court. This contention has no force. This
RAJASTHAN ST ATE ROAD TRANSPORT CORPORATION I'. ZAKIR HUSSAIN [LAKSHMANAN, J.] 811

Court has very explicitly summarised the principles flowing from the dis- A
cussion 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. But, however, granted certain reliefs
by reducing the back wages etc. etc. in the peculiar facts and circumstances
of the case. Therefore, in our opinion, the above judgment will not be of B
any assistance or aid to the claim of the respondent.

For the foregoing reasons, we hold that the respondent ought to have
approached the remedies provided under the Industrial Disputes Act. He has
miserably failed to do so but approached the Civil Court, which on the facts
and circumstances of the case has no jurisdiction to entertain and try the suit. c
The respondent has not acted bona fide in instituting the suit. It is seen
from the order of the High Court that the respondent had been reinstated
in service in the year I 990 and the back wages had also been paid to him.
Though in law, the respondent is not entitled to any back wages, having D
regard to the facts and circumstances of this case, we are not inclined to
order refund of the back wages already paid to the respondent. But we make
it very clear that the respondent shall not be allowed to continue in service
any further. He shall not be entitled to any further emoluments or service
benefits except the amount, which has already been paid to him. The
respondent shall be discharged forthwith. No costs. The appeal stands E
allowed.

v.s.s. Appeal allowed .

•