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

- **Citation:** [2005] Supp. 2 S.C.R. 786
- **Court:** Supreme Court of India
- **Decided:** 2005-08-22
- **Case number:** Civil Appeal No. 5176 of 2005
- **Bench:** Ruma Pal, Dr. Ar. Lakshmanan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rajasthan-state-road-transport-corpora-tlon-and-ors-v-zakir-hussain-20966
- **Pages:** 26

## Headnote

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 heldCorrectness 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
E
of Corporation.
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 termination was punitive and penal, and as there was no enquiry, same was
illegal.
Allowing the appeal, the Court
HELD : I.I. 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
c
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
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
Corporation Ltd and Others. v. U.P. Rajya Setu Nigam S. Karamchari
Sangh, [2004) 4 SCC 268, followed.
E
F
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 decr

## Text

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A
B
RAJASTHAN STATE ROAD TRANSPORT
CORPORA TlON AND ORS.
v.
ZAKIR HUSSAIN
AUGUST 22, 2005
[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 heldCorrectness 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
E
of Corporation.
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 termination was punitive and penal, and as there was no enquiry, same was
illegal.
Allowing the appeal, the Court
HELD : I.I. 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
c
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
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
Corporation Ltd and Others. v. U.P. Rajya Setu Nigam S. Karamchari
Sangh, [2004) 4 SCC 268, followed.
E
F
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 respondentprobationer 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.
E
F
3. 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 ,chastise or cause pain in body or
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 discharge. 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
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 ST ATE ROAD TRANSPORT CORPORATION v. ZAKIR HUSSAIN
789
Ravindra Kumar Misra v. UP. State Handloom Corporation Ltd. &
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.
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
not obligatory on the part of the Corporation to hold an enquiry before
terminating the services. [810-D-E]
A
B
c
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 appellantCorporation 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.
Sushi! Kumar Jain, A.P. Dhamija and Sarad Singhania for the
Appellants.
G
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 appellantCorporation.
The respondent was appointed as conductor on daily wages with the
C Rajasthan State Road Transport Corporation. He was appointed as conductor 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 satisfactory. 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 termiF 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-Corporation filed an appeal before the District Judge, Jaipur City, Jaipur being
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
c
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 obligatory 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 prinB
ciple of 'No Work, No Pay'.
c
D
E
F
G
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
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
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
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
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
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 A TE 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
to camouflage the punitive order of termination by the cover of termination
simpliciter but has failed. Learned counsel cited the case of The Management of Utkal Machinery ltd. v. Workman, Santi Patnaik, AIR (1966) SC
I 051 in this regard.
Jurisdiction of Civil Courts in Industrial Dispute
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
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 termination was also dismissed on 20.10.1984 by the appellate Authorities. A
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
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 appointment 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 probation is for a period of two years.
Premier Automobiles limited v. Kamalakar Shantaram Wadke and Ors.,
(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:
A
B
c
D
E
F
G
H
A
B
c
D
E
F
794
SUPREME COURT REPORTS (2005] SUPP. 2 S.C.R.
( 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
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.
(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
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
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 provision of law contained in S. 2A will be an industrial dispute. Civil
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, observF
ance or enforcement of any of the rights or obligations created
(3)
by the Industrial Disputes Act, the only remedy is to approach
the forums created by the said Act.
Similarly, where the dispute involves the recognition, observance or enforcement of right and obligations created by enactment 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
G
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. OtherB
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 referc
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,
D
though it may be that the Government is entitled to examine
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 effectiveF
ness of the remedies provided by the Industrial Disputes Act.
(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
G
do not amount to "statutory 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
(7)
The policy of law emerging from Industrial Disputes Act and
RAJAS THAN ST A TE ROAD TRANSPORT CORPORATION v. ZAKIR HUSSAIN [LAKSHMANAN. J .]
797
its sister enactments is to provide an alternative dispute-resoA
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,
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
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.
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
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
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
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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,
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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: -
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"Although these observations were made in the context of the
jurisdiction of the civil court to entertain the proceedings relating
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."
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.
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
on the appellant to produce the appointment letters of the respondent 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 exchanged between the parties with regard to the demands raised by
the respondent Union nor has it come to any decision on the
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
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 jurisdiction 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.
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
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:
"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 procedure and machinery has been provided in this Act.
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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 therefore 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 government may make a reference or not, the jurisdiction of civil court H
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is not impliedly barred. The discretion cannot be exercised arbitrarily 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 termination or dismissal is not in accordance with the Standing Orders but also
provides a detailed procedure and machinery for getting this relief. Under
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these circumstances, there is an apparent implied exclusion of the jurisdiction of the civil court.
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.
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 respondent Company. At the end of his extended probation period,
finding his performance not to be satisfactory, the respondent terminated 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
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
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 appeal, this Court held:
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:-
"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
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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
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
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."
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
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A alia, held and observed as under:-
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"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."
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. ... "
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
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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.
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This apart, the respondent has placed reliance on the standing order
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.
& 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
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
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 sugB
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 consoliC
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
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
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)
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"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 G
this conclusion. The respondent had earned an adverse entry and
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
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