# I & ANR v. BAL MUKUND BArRWA

- **Citation:** [2009] 2 S.C.R. 161
- **Court:** Supreme Court of India
- **Decided:** 2009
- **Case number:** Civil Appeal No. 328 of 2005
- **Bench:** S.B. Sinha, Dr. Mukundakam Sharma, Asok Kumar Ganguly
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/i-anr-v-bal-mukund-barrwa-25514
- **Pages:** 32

## Headnote

Code Of Civil Procedure, 1908:
s. 9 - Jurisdiction of civil court to entertain suits ques- c
tioning orders passed by Rajasthan State Road Transport Corporation terminating services of its employees - Held: Corporation is 'State' within the meaning of Article 12 of the Constitution - If an act on its part is violative of the constitutional D
provisions or mandatory requirements of a statute or statutory
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 Transport Corporation Employees Service Regulations, 1965 - In:-
dustrial Disputes Act, 1947 - s. 2 (s) - Industrial Employment
(Standing Orders) Act, 1946 - Rajasthan State Road Transport Workers and Workshop Employees Sanding Orders, 1965 F
- Constitution of lndida, 1950 -Article 14 - Natural justice.
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
vs. Krishna Kant and others
1 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 statute either expressly or by necessary implication. If a state ute while creating rights and obligations did not constitute 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 employee may or may not be an industrial dispute. The apG pellant-Corporation 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 certain situations, even gross violation of the prinH 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 contingencies 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

## Text

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[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 Corporation terminating services of its employees - Held: Corporation is 'State' within the meaning of Article 12 of the Constitution - If an act on its part is violative of the constitutional D
provisions or mandatory requirements of a statute or statutory
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 Transport Corporation Employees Service Regulations, 1965 - In:-
dustrial Disputes Act, 1947 - s. 2 (s) - Industrial Employment
(Standing Orders) Act, 1946 - Rajasthan State Road Transport Workers and Workshop Employees Sanding Orders, 1965 F
- Constitution of lndida, 1950 -Article 14 - Natural justice.
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
vs. Krishna Kant and others
1 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 statute either expressly or by necessary implication. If a state ute while creating rights and obligations did not constitute 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 employee may or may not be an industrial dispute. The apG pellant-Corporation 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 certain situations, even gross violation of the prinH 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 contingencies 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 c
no procedure has been followed as laid down by the statutory 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 paragraph 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 judgment and having followed Dhu/abhai which is a Con_stituE
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 Congress & 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 Corporation & 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 Standing 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 employer 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 Constitution of India or a statute and would otherwise be governed 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 proE 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 effected in breach of the provisions thereof. [para 23] [186F
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 'HarG 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 jurisdiction. [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- c
tution of India would also not arise herein. Provisions of
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 overruling 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 conE
fer jurisdiction where there is none and neither can 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 in view of the sevenJudge Bench decision of this Court in A.R. Antulay, the
F
same would be nullity and, thus, the doctrine of prospective overruling shall not apply in such cases. Even otherwise doctrine of prospective 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
G
1
passed by a court/tribunal in respect whereof it had no
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
SC 1643; M,A. Murthy v. State of Karnataka and Ors. (2003) 7
vSCC 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) 1 o sec 760
relied on
para 11
D
2008 (8) SCALE 509
relied on
para 11
(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
1relied on
para 22
1986) 3 sec 156
relied on
para 22
(2008) 5 sec 542
relied on
para 23
G
(1969) 1 sec 585
relied on
para 23
(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
(2006) 4 sec 113
AIR 1967 SC 1643
(2003) 1 sec 517
(2001) 4 sec 54
relied on
para 27
A
relied on
para 27
' referred to
para 30
referred to
para 30
referred to
para 30
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 328
of 2005
->
B
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.
2. Reference to this Bench has been made by a Division
Bench of this Court by an order dated 22.11.2007 for resolution
F
of a purported conflict in two three-Judge' Bench judgments of
this Court in the cases of Rajasthan State Road Transport corporation & 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 decisions 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 termination 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 having perpetual ,succession and a common seal and can in its
own name sue and be sued. Section 45 of the 1950 Act provides for the Regulation making power, stating:
D
E
F
G
H
"45. Power to make regulations.- (1) A Corporation may,
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.
(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
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;
(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,
' .
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 CorB
poration made Regulations known as "Rajasthan State Road
Transport Corporation Employees Service Regulations, 1965".
Chapter V of the said Regulations provides for suspension, terll)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, 194 7.
7. The Parliament enacted Industrial Employment (Standing 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 aforementioned provision is a plenary one. The provision relating to bar
to entertain a suit must therefore be laid down by a statute either 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 entitled 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 followed.
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
D
also a writ court, in the event the findings arrived at in the
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
E
and Anr. v. Mahendra Kumar Das and Ors. [(1970) 1 SCC
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 fundamental principles of law laid down in the maxim Ubi jus lbi remedium. 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 statute. Ex facie, in terms of Section 9 of the Code, civil courts can
try all suits, unless bared by statute, either expressly or by neeessary 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 otherwise may not possess. For the said purpose, the court in given
cases would be entitled to decide the question of its own jurisdiction upon arriving at a finding in regard to the existence of
the jurisdictional fact. It is also well settled that there is a preG
.!
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 Tribunal 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
' r
to be excluded if there is adequate remedy to do what the
civil courts would normally do in a suit. Such provision,
however, does not exclude those cases where the
.
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
E
the remedies and the scheme of the particular Act to find
out the intendment becomes necessary and the result of
the inquiry may be decisive. In the latter case it is necessary
to see if the statute creates a special right or a liability and ·
provides for the determination of the right or liability and
further lays down that all questions about the said right
~
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.
(3) Challenge to the provisions of the particular Act 13s
f
G
t
ultra vires cannot be brought before Tribunals constituted
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
E
& ors. [(2005) 10 SCC 760], United India Insurance Co.Ltd. vs.
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) employed in any industry to do any manual, unskilled, skilled, technical, 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
service or as an officer or other employee of a prison; or (iii)
•
c who is employed mainly in a managerial or administrative capacity; 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 194 7 Act provides for the forum for
determination of an industrial 'disputes raised between workmen and workmen; workmen and employer; and employer and
G employer inter alia if any reference is made by an appropriate
. Government in exercise of its power conferred upon it under
....
Section 10 thereof. Section 11 of the 194 7 Act provides for pro-
'r-
)
cedure and power of conciliation officers, Boards, Courts and
Tribunal while Section 11Aconfers extensive power on the labour
H court or the Industrial Tribunal to interfere with an order of pun-
RAJASTHAN STATE ROAD TRANSPORT CORP. & 175
ANR. V BAL MUKUND BAIRWA [S.8. SINHA, J.]
ishment imposed upon a workman including a power to substiA
·~
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
B
set out in the Schedule appended thereto and submit the same
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.
15. The question in regard to the jurisdiction of a Civil Court c
vis-'-vis adjudication of rights/obligations created by or under
the 194 7 Act came up for consideration in The Premier Automobiles 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."
B
16. The question came up for consideration again before
a three Judge Bench of this Court in Krishna Kant (supra)
wherein, inter alia, it was held:
.--
"29. Now let us examine the facts of the appeals before us
r--·
I
in the light of the principles adumbrated Premier
.l
tc
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 a1wellantestablishment. The basis is not the violation of any terms
\-
D
of contract of service entered into between the Qarties
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
E
not itself provide any forum for the enforcement of rights
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
·l
enactments -
[like Industrial Employment {Standing
1.·
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]
It was, however, noticed:
D
).
)
"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
A
B
SUPREME COURT REPORTS
[2009] 2 S.C.R.
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
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
D
E
F
G
H
decisions were summarized thus:
"35. We may now summarise the principles flowing from
the above discussion:
(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
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
obligati.ons 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,
observance or enforcement of rights and obligations
created by enactments 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 constitute industrial
disputes within the meaning of Section 2(k) and Section
I
.
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
E
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 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
A
B
c
180
SUPREME COURT REPORTS
[2009] 2 S.C.R.
(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
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."
Applying the said principles to the fact of the cases wherein
the plaintiffs alleged that the enquiries were conducted in violation of the Standing Orders whereas the stand taken by the Corporation 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 provisions 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:
G
"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
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 Orders 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 decision 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 termination was a simpliciter one which was passed during the period
of probation and, thus, did not entail any stigma or civil conseE
quences visiting him. In the facts of the case, Krishna Kant (supra) was not followed, stating:
"35. Learned counsel for the respondent placing
strong
reliance on the judgment in Rajasthan SRTC v. Krishna
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,
F
the respondent is right in approaching the civil court. This
G
contention has no force.