IRLL

CH- 7 : INDUSTRIAL DISPUTES RESOLUTION SYSTEM UNDER THE INDUSTRIAL

DISPUTES ACT, 1947

CASE 1 : Jagdish Narain Sharma VS Rajasthan Patrika ltd 1994

The two petitioners with common name, Jagdish Narain Sharma, have jointly filed this revision petition
against the order dated February 7, 1992 passed by the Additional District Judge No. 1, Kota, dismissing
their appeal against the order dated December 10, 1991 passed by the Additional Munsiff and Judicial
Magistrate (I), Kota (South) refusing to grant temporary injunction in their favour.

2. Briefly stated, the facts of the case are that the petitioner Jagdish Narain Sharma son of Shri
Bhorelal was employed as Operator in Li-notrone Department of Rajasthan Patrika, Kota and
Jagdish Narain son of Ghasi Lal was employed as Pester in the Pesting Department of Rajasthan
Patrika, Kota. Both the petitioners were transferred to Bikaner and Udaipur respectively on
December 7, 1991 without their consent. The plaintiffs-petitioners alleged that the order of
transfer had been passed unlawfully and with mala fide intention of victimising the plaintiffs-
petitioners for their union activities. The whole object of effecting transfer was to stultify
activities of the Union which had been established by the plaintiffs-petitioners in association
with other workers of Kota. The plaintiffs-petitioners also claimed that the transfer of the
employees could not be effected from factory to a department or office and the action of the
Management of Rajasthan Patrika Ltd. was contrary to the provisions contained in certified
standing orders framed under the Industrial Employment (Standing Orders) Act, 1946. With
these allegations the plaintiffs-petitioners filed a suit for permanent injunction and sought prayer
that the non-petitioners be restrained from transferring them to any other place. Application for
grant of temporary injunction was also filed by the plaintiffs-petitioners with a prayer that the
defendants-non-petitioners be restrained from transferring them to any other place.

3. The non-petitioners contested the application for temporary injunction filed by the petitioners
by alleging that the service conditions of the petitioners were governed by the provisions of the
Industrial Disputes Act, 1947 and the Industrial Employment Standing Orders Act, 1946 and the
petitioners fall within the definition of the term 'workman' under Section 2(s) of 1947 Act. They
had a specific remedy available to them under the provisions of 1947 Act because that Act is a
special enactment and jurisdiction of the Civil Court is barred in those matters, in respect of
which adjudication can be made under the provisions of 1947 Act. The non-petitioners also
claimed that the transfer of the petitioners had been effected in accordance with the provisions
contained in the Certified Standing Orders. The transfer had not been effected with any malice.
Rather the transfer had been effected for administrative reasons and it was permissible for the
non-petitioners to effect transfer of employees from one place to another, because Rajasthan
Patrika had its offices at different places.

4. After considering the pleadings of the parties and after having considered the rival contentions
the learned Additional Munsiff No. 1 (South), Kota held that he had no jurisdiction to hear the
claim of the petitioner, for cancellation of the transfer or for grant of injunction because of the
provisions of the Industrial Disputes Act, 1947. He placed reliance on the decision of the
Supreme Court in the Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke (1975-II-LLJ-
445). Learned Munsiff also held that the plaintiffs- petitioners had failed to make out a prima
facie case of mala fide and that the transfer was an incidence of service. Therefore, there was no
justification for grant of stay in favour of the petitioners.

5. In appeal, the learned Additional District Judge has also expressed the view that the suit filed
by the petitioners was not maintainable and that the transfer had not been effected on account of
any malice. He also held that once the petitioners had been relieved, the application for grant of
injunction had become infructuous and, therefore, no relief could be given to the petitioners.

6. Shri R.K. Kala, learned counsel for the non-petitioners, has reiterated preliminary objection
regarding the maintainability of the suit in Civil Court against the impugned action of transfer
and has urged that this revision petition is also not maintainable under Section 115, C.P.C. Shri
Kala placed reliance on the decisions of the Supreme Court in Premier Automobiles Ltd. v.
Kamlakar Shantaram Wadke (supra), Jitendra Nath Biswas v. Empire of India and Ceylon Tea
Co., (1989-II-LLJ-572) and a recent decision of Madras High Court in Tamil Nadu Mercantile
Bank Ltd. v. T. Venkatesan, 1992 Lab LR 544. On the strength of these decisions Shri Kala
argued that the matter relating to transfer of a person employed in an industry is specified in the
Schedule appended to the Industrial Disputes Act, 1947, and, therefore, any dispute relating to
the matter of transfer can be agitated before an appropriate adjudicating authority under the
Industrial Disputes Act, 1947. He urged, in all matters enumerated in the Schedules appended to
1947 Act, exclusive remedy is available under that Act and, when remedy is available to the
employees under the special enactment like the Industrial Disputes Act, 1947, the Civil Court
cannot entertain the suit in respect of such matters.

7. Shri P.K. Shanna, learned counsel for the petitioners, on the other hand, forcefully argued that
exclusion of jurisdiction of the Civil Court must not ordinarily be inferred by the Court. He
submitted that the Labour Court. Tribunal or the National Tribunal can entertain a dispute
referred to it for adjudication only when it is an industrial dispute and not otherwise. None of
these adjudicating bodies have got jurisdiction to go into the merits or demerits of the claim
which does not fall within the ambit of the term "industrial dispute" under Section 2(k) of 1947
Act, Shri Sharma argued that all matters enumerated in the schedule appended to 1947 Act do
not necessarily constitute 'industrial dispute' for the purpose of Section 2(k) and, therefore, in
such matters which are not covered by the definition of the term 'industrial dispute' Civil Court
has jurisdiction to adjudicate the rights of an individual.

8. Section 2(k) defines the term 'industrial dispute'. Till 1957 there was a conflict of opinion
amongst the High Courts as to whether an individual dispute can be regarded as an 'industrial
dispute'. Some High Courts and Tribunals took the view that a dispute between an employer and
a single workman cannot be an 'industrial dispute'. Others took the view that it can be an
'industrial dispute'. In yet another category of cases, it was held that such cases cannot per se be
'industrial dispute', but, may become 'industrial dispute' if taken up by a Trade Union or large
number of workmen. In Central Provinces Transport Service Ltd. v. Raghunath Gopal
Patwardhan (1957-I-LLJ-27), their Lordships of the Supreme Court adopted the third view and
held that an individual dispute cannot ordinarily be treated as an industrial dispute. However, if
such dispute is espoused by a Union or substantial number of workmen employed in the
establishment, such dispute will be treated as an 'industrial dispute'. Same view was reiterated in
Workmen v. Dharampal Prem Chand (1965-I-LLJ-668) and Workmen of Indian Express
Newspapers Pvt. Ltd. v. Management of Indian Express Pvt. Ltd. (1970-II-LLJ-132).

9. These decisions caused hardship to an individual workman particularly in matters relating to

his dismissal, discharge, retrenchment etc. because individual workman could not avail remedy
under the Industrial Disputes Act without espousal of his cause by a union or by a substantial
number of employees of the establishment. The Parliament, therefore, amended the Industrial
Disputes Act by the Industrial Dispute (Amendment) Act, 1965. By this amendment, which
became effective from December 1, 1965, Section 2A came to be inserted. By virtue of the
provisions contained in Section 2A, any dispute or difference between a workman and his
employer, in relation to discharge, dismissal, retrenchment or termination of service, is now
deemed to be an 'industrial dispute' even though, such dispute may not be taken up by a
legislative fiction on individual dispute has been converted into an industrial dispute. But,
Section 2A is limited to the cases of dismissal, discharge, retrenchment or termination of service
of the workman. Other individual disputes can be regarded as an 'industrial dispute' only when
the tests enumerated in the decisions of the Supreme Court in Central Provinces Transport
Service's case (supra) and other subsequent decisions are satisfied.

10. Section 7 of the 1947 Act relates to the constitution of the Labour Court for adjudication of
industrial disputes relating to any matter specified in Second Schedule. Section 7A empowers the
appropriate Government to constitute one or more Industrial Tribunals for adjudication of the
disputes relating to any matter whether specified in Second Schedule or the Third Schedule. The
Second Schedule appended to Industrial Disputes Act, 1947 enumerates the matters which fall
within the jurisdiction of the Labour Court and the Third Schedule enumerates the matters which
fall within the jurisdiction of the Industrial Tribunal. Sections 7(1), 7A(1) and two Schedules
read thus:

"7. Labour Courts - (1) The appropriate Government may, by notification in the Official Gazette,
constitute one or more Labour Courts for the adjudication of industrial disputes relating to any
matter specified in the Second Schedule and for performing such other functions as may be
assigned to them under this Act.

7-A. Tribunals- (1) The appropriate Government may, by notification in the Official Gazette,
constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to
any matter, whether specified in the Second Schedule or the Third Schedule and for performing
such other functions as may be assigned to them under this Act."

The Second Schedule : (See Section 7) Matters within the jurisdiction of Labour Courts.

1. The propriety or legality of an order passed by an employer under the standing orders;

2. The application and interpretation of standing orders;

3. Discharge or dismissal of workmen including reinstatement of or grant of relief to workmen
wrongfully dismissed:

4. Withdrawal of any customary concession or privilege:

5. Illegality or otherwise of a strike or lockout; and

6. All matters other than those specified in the Third Schedule.

The Third Schedule : (See Section 7A) Matters within the jurisdiction of Industrial Tribunal.

1. Wages, including the period and mode of payment;

2. Compensatory and other allowance;

3. Hours of work and rest intervals;

4. Leave with wages and holidays;

5. Bonus, profit sharing, provident fund and gratuity:

6. Shift working otherwise than in accordance with standing orders;

7. Classification by grades:

8. Rules of discipline;

9. Rationalisation:

10. Retrenchment of workmen and closure of establishment; and

11. Any other matter that may be prescribed.

11. A Labour Court or Industrial Tribunal can adjudicate a dispute relating to any matter
specified in the Second Schedule or Third Schedule respectively. But jurisdiction to adjudicate in
these matters is conferred on the competent Labour Court or Industrial Tribunal only when the
dispute is an 'industrial dispute' and not otherwise. The expression "industrial dispute relating to
any matter specified in...."as used in Section 7(1) and 7A(1) clearly means that the law has
conferred jurisdiction on the Labour Courts and the Tribunals only in respect of industrial
disputes which relate to any of the matters specified in the Second Schedule or the Third
Schedule. It must, therefore, be held that the existence of industrial dispute in relation to any of
these matters is a condition precedent for conferment of jurisdiction on the Labour Court or the
Tribunal to make an adjudication. The appropriate Government can make a reference under
Section 10(1) read with Section 12(5) for adjudication by a Labour Court or Tribunal of an
'industrial dispute', and not an individual dispute. Even if the Government makes a reference of
an individual dispute by treating it to be an industrial dispute, the Labour Court or the Tribunal
does not get a jurisdiction to adjudicate on such dispute. Any dispute of an individual workman
in relation to the matters enumerated in the Second and Third Schedule can become an industrial
dispute only if his cause is espoused by a Trade Union of workmen or a substantial number of
workmen engaged in the establishment. The only exception is in respect of the matters specified
in Section 2A. If an individual workman raises a grievance regarding leave, wages, holidays,
bonus, P.P., gratuity, allowance, or an order passed under the standing orders etc, he cannot seek
relief under the Industrial Disputes Act, till his grievance is taken up by a Union or by a
substantial number of workmen. Even though transfer is not one of the specifically enumerated
matters in the Second or the Third Schedule appended to the Act of 1947, it can be said that the
same may be treated as part of Para 1 of Schedule II in case, transfer is governed by the Standing
Orders or Part 6 of Schedule II which relates to residuary matters, i.e., matters not specified in
the Third Schedule. Thus, it can be said that the transfer is one of the matters on which the
Labour Court can make an adjudication.

12. It is well recognised that transfer of an employee by the employer is a normal incidence of
service. The contract of employment may contain a specific provision relating to the transfer of
the employee. Even if such provision is not specifically incorporated in the contract of
employment, it is an inherent right of the master to transfer an employee under his control, from
one place to another. The transfer may also be provided by the Standing Orders which are
applicable to a particular industrial establishment. The same may also be provided by statutory
conditions of service wherever the relationship of employer and employee is regulated by such
statutory provisions. It has, therefore, to be recognised that the employer has got a right of
effecting transfer of an employee from one place to another. The employee can challenge such
order of transfer on the ground of violation of the statutory provisions in case transfer is
governed by the provisions of the Statute. It may also be challenged on the ground of mala fide,
arbitrariness or victimisation or change in the condition of service. The crucial question,
however, is as to whether the employee can, as a matter of right, claim adjudication of his
grievance relating to transfer by a Labour Court. Can the Labour Court adjudicate in such
matters even if no industrial dispute is referred to it for adjudication? As already observed by me
above, such a dispute can become an industrial dispute only if it is espoused by a Union of the
workmen or by a substantial number of workmen employed in an 'industry'. Without such
espousal the dispute in relation to transfer cannot be treated as an industrial dispute and it cannot
be referred to a Labour Court nor can a Labour Court make an adjudication in regard to such
dispute.

13. Argument of Shri Kala that Section 9 of the Code of Civil Procedure stands excluded in
respect of all matters enumerated in the Second and Third Schedules and, therefore, jurisdiction
of the Civil Court to adjudicate upon the legality of transfer of an employee of an industry
deserves a close scrutiny. Despite various pronouncements of the Apex Court and of this Court,
the Civil Courts are still confused about their jurisdiction to entertain suits in respect of the
matters enumerated in the Second or Third Schedule appended to the Industrial Disputes Act,
1947. Section 9 C.P.C. provides:

"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".

14. It is a settled principle of law that exclusion of jurisdiction of Civil Court is not to be readily
inferred and such exclusion must be either express or implied. In Dhulabhai v. State of Madhya
Pradesh, AIR 1969 SC 78, their Lordships of the Supreme Court discussed the law on the subject
and enumerated principles regarding exclusion of jurisdiction of the Civil Court. These
principles are (para 32):

"(1) Where the statute gives a finality to the orders of the special tribunals the Civil Courts'
jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Court
would normally do in a suit. Such provision, however, does not exclude those cases where the
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 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 examination of 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
and liability shall be determined by the tribunals so 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 as 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.

(4) When a provision is already declared unconstitutional or the constitutionality of any

provision is to be challenged, 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 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 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.

(7) An exclusion of jurisdiction of the Civil Court is not readily to be inferred unless the
conditions above set down apply."
15. The same view was reiterated in Smt. Ganga Bai v. Vijay Kumar (AIR 1974 SC 1126) and
also in a recent decision of Supreme Court in Nagripracharini Sabha v. Vth Additional District &
Sessions Judge, Varanasi, 1991 Suppl (2) SCC 36 and Ishar Singh v. National Fertilizers (AIR
1991 SC 1546). The last mentioned case was a case relating to correction of date of birth. The
workman sought an injunction against impending superannuation and ancillary reliefs. Their
Lordships held that the maintainability of the suit has to be decided with reference to the date of
institution of the proceedings and since on the date when the civil suit was filed none of the
eventualities covered by Section 2A had happened, the appellant could not have approached the
forum under 1947 Act for relief. Their Lordships further held that, "If for part of the reliefs the
suit is maintainable in the forum where it has been laid, it is not open to the forum to shut out the
doors to the suitor." It further held that, "so far as the relief of rectification of the record relating
to date of birth is concerned, the Civil Court had jurisdiction and the High Court was not right in
saying that the suit was not maintainable at all."

16. In Premier Automobiles' case (supra), on which much emphasis has been placed by Shri
Kala, their Lordships of the Supreme Court were concerned with a case in which suit was filed
by the workman with the claim that in terms of the Memorandum of Settlement entered into
between the employer and the employees under Section 18(1), some conditions of service were
recognised. Subsequently, another settlement was arrived at between the company and the
Associations Union. It was claimed that the subsequent settlement was not binding on those
workmen who were not its members. It was claimed that the settlement had been arrived at
without following the mandatory requirement of Section 9A of 1947 Act. It was claimed that the
settlement dated January 9, 1971 was not binding on the plaintiff and other concerned daily-rated
and monthly-rated workmen of the Motor Production Department who were not members of the
Association Union. The defendants challenged the jurisdiction of the Civil Court. The trial Court
held that it had jurisdiction to try the suit and a conditional decree of injunction was passed
against the defendant. Appeal filed by the company before the High Court was dismissed. A
Letters Patent Appeal also met the same fate. Their Lordships of the Supreme Court examined
the scope of Section 9, C.P.C. and various provisions of the Industrial Disputes Act, 1947
including Section 2(k) which defines the term "industrial dispute". After analysing the provisions
their Lordships observed (Para 9): (1975-II-LLJ-445 at 451):

"It would thus, be seen that through the intervention of the appropriate government, of course not
directly, a very extensive machinery has been provided for settlement and adjudication of
industrial disputes. But, since an individual aggrieved cannot approach the Tribunal or the
Labour Court directly for the redress of his grievance without the intervention of the
government, it is legitimate to take the view that the remedy provided under the Act is not such
as to completely oust the jurisdiction of the Civil Court for trial of industrial disputes. If the
dispute is not an industrial dispute within the meaning of Section 2(k) or within the meaning of
Section 2A of the Act, it is obvious that there is no provision for adjudication of such disputes
under the Act, Civil Courts will be proper forum. But, where the industrial dispute is for the
purpose of enforcing any right, obligation or liability under the general law or the common law
and not a right, obligation or liability created under the Act, then alternative forums are there
giving an election to the suitor to choose his remedy of either moving the machinery under the
Act or to approach the Civil Court. It is plain that he cannot have both. He has to choose the one
or the other. But we shall presently show that the Civil Court will have no jurisdiction to try and
adjudicate upon an industrial dispute if it concerned enforcement of certain right or liability
created only under the Act. In that event Civil Court will have no jurisdiction even to grant a
decree of injunction to prevent the threatened injury on account of the alleged breach of contract,
if the contract is one which is recognized by and enforceable under the Act alone."

(Underlining is mine).

17. After making a reference to the various English decisions as well as the judgments of this
Court, their Lordships of the Supreme Court laid down the following principles relating to the
jurisdiction of the Civil Court in relation to an 'industrial dispute' (Para 23) (p. 459):

"(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 suitor 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 only remedy available to the suitor is to get an adjudication under the Act.

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

18. This decision of the Supreme Court has been reiterated in Jitendra Nath Bishwas v. Empire
of India & Ceylon Tea Co. (supra). That case also related to termination of the service of an
employee on the basis of an enquiry held in accordance with the provisions of the Standing
Orders framed under the Industrial Employment (Standing Orders) Act, 1946. Their Lordships
held that the Industrial Dispute 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. The Act also
provides a detailed procedure and machinery for getting this relief and, therefore, the jurisdiction
of the Civil Court is impliedly excluded.

19. In Tamil Nadu Mercantile Bank Ltd., Tuticorin v. T. Venkatesan (supra), transfer was
challenged by an employee before the Civil Court, However even before the suit was filed, the
Tamil Nadu Mercantile Bank Ltd. Union had raised an industrial dispute questioning the validity
of the transfer. A learned single Judge of Madras High Court placed reliance on another decision
of the same Court in T. Rajaiah v. Southern Roadways Ltd., (1991) I Lab LN 453, of Kerala
High Court in Kerala Rubber and Reclaims Ltd. v. P.A. Sunny (1989 Lab IC 964). The learned
single Judge also referred to the decision of the Supreme Court in Premier Automobiles Ltd.,
(supra) and held that the case does not fall under second principle enunciated by the Supreme
Court in Premier Automobiles Ltd's case (supra). He further held that the case of transfer is
covered by principles Nos. 3 and 4 formulated by the Supreme Court. Learned single Judge held
that the Civil Court had no jurisdiction to entertain the suit.
20. In Kerala Rubber & Reclaims Ltd. v. P.A. Sunny (supra), an order of transfer was challenged
in a civil suit. After making reference to the decision of the Supreme Court in Premier
Automobiles' case (supra), a learned single Judge held that, common law does not recognise any
limitation on the power in the matter of transfer of the employees on the ground of mala fides,
victimisation or unfair labour practice. But, after the Industrial Disputes Act was enacted, new
rights and liabilities have been created restricting unfettered common law rights of master in
dealing with the workmen in this behalf. Learned single Judge further held that, Civil Court had
no jurisdiction to entertain the suit. He made a reference to Section 25T read with Section 2(r-a)
and Item 7 of the Vth Schedule to the Act, as also to the residuary clause in the Second Schedule
pertaining to the jurisdiction of the Labour Court and observed that:

"Any dispute regarding transfers effected in contravention of Schedule 25T read with Item 7 of
the Vth Schedule can be resolved under Section 10 of the Act. Merely because a workman is not
in a position to satisfy all the conditions prescribed by the statute for the purpose of enforcing the
rights created by the statute, it cannot be said that the statute does not provide a remedy for
enforcing the rights created by the statute."

21. In Y. Mookan v. Southern Roadways (1991-I-LLJ-533) a learned single Judge of Karnataka

High Court adopted the same reasoning and held that since the remedy was available to the
workman under the Industrial Disputes Act, the jurisdiction of the Civil Court is impliedly
barred. In this judgment the learned Judge of the Karnataka High Court referred only to the
provisions of Section 25T read with Section 2(r-a) and Item No. 7 of Vth Schedule appended to
the Industrial Disputes Act.

22. In General Secretary, National and Grindleys Bank Employees Union v. S. Kannan (1978-I-
LLJ-453) a dispute relating to seniority of employees based on an agreement between the
Employees Union and the Management was agitated by way of suit. Objection regarding: ouster
of the jurisdiction of the Civil Court was rejected by Madras High Court and it was observed
that, "right sought to be enforced in the suit was not one created under the Act and it was one
arising under the common law." (p. 458)

23. In Sita Ram Kashi Ram Konda v. Pigment Cakes and Chemicals Manufacturing Co. (1979-
II-LLJ-444) their Lordships of the Supreme Court held that, a suit for award of compensation
against wrongful dismissal from service was maintainable before a Civil Court.

24. A conspectus of the judgments, to which reference has been made hereinabove, clearly show
that ordinarily the Civil Court has jurisdiction to entertain all suits for adjudication of the rights
and disputes under Section 9 of the Code of Civil Procedure and exclusion of the jurisdiction of
the Civil Court is not to be inferred easily. Where there is an express bar of the jurisdiction of the
Court, an examination of the scheme of the particular Act to find out the adequacy or the
sufficiency of the remedies provided is not relevant. However, where no expression of exclusion
has been made, an examination of the scope of remedies and scheme of the particular Act to find
out the intention of the Legislature becomes necessary. In such types of cases it is necessary to
see as to whether the statute creates a special right or a liability and provides for the
determination of the rights or the liabilities and whether it lays down that all questions about
such rights and liabilities shall be determined by the Tribunal constituted under the Act and
whether remedy normally associated with actions in Civil Courts, are prescribed by such statute.
In the decision of the Supreme Court in Premier Automobiles' case (supra), which finds
reference in almost all subsequently decided cases, reference has been made to a decision of
Madras High Court in Krishnan v. East India Distilleries and Sugar Factories Ltd., Nellikuppam
(1964-I-LLJ-217) and of another decision of the same High Court in Madura Mills Ltd. v.
Guruvammal (1967-II-LLJ-397), which have been approved. Their Lordships also approved
views taken by Mysore High Court in Nippani Electricity Company (P) Ltd. v. Bhimrao Laxman
Patil (1969-I-LLJ-268), of Kerala High Court in Nanu Asan Madhavan v. State of Kerala (1970-
I-LLJ-272). Calcutta High Court in Austin Distributors Pvt. Ltd. v. Anil Kumar Das 1970 Lab IC
323 (Cal) and another decision of Mysore High Court in the case of Syndicate Bank v. Vincent
Robert Lobo (1971-II-LLJ-46). Their Lordships of the Supreme Court then examined the facts of
the case which came up for consideration before them and observed that the source of the right
claimed by the plaintiffs was the agreements entered from time to time under Section 18(1) of
the Act. Their Lordships observed that the workmen who were not members of the Sabha-Union
had tacitly agreed to be bound by the said agreement and if they claim that the agreement had
become term of the contract of service, the alternative claim made could be referable to the claim
of the non-pressed only. The source of their right in that provision was different and a
representative suit on their behalf by the two plaintiffs could not be maintained. The portion of
that decision which has been extracted by me hereinabove, clearly shows that their Lordships
have in no uncertain terms laid down that if the dispute is not an industrial dispute within the
meaning of Section 2(k) or within the meaning of Section 2A of the Act, there is no provision for
adjudication of such dispute under the Act and the Civil Courts will be proper forum. Even from
principle No. 2 it is clear that if a dispute is an 'industrial dispute' arising out of a right or the
liability under the common law and not under the I.D. Act, the jurisdiction of the Civil Court is
alternative and it is for the party to choose the forum. Therefore, before the jurisdiction of the
Civil Court can be treated to have been ousted, the Court is bound in each and every case, where
the jurisdiction of the Civil Court is challenged, to consider as to whether the dispute is an
'industrial dispute'. It has then to consider whether it is a dispute in relation to the matters
specified in Schedule Second and Third. Only when the Court comes to the conclusion that
'industrial dispute' relates to enforcement of certain rights created by the Act, the jurisdiction of
the Civil Court is ousted and not otherwise.

25. As already observed earlier, transfer of an employee by the employer is a normal incidence
of service. Even before coming into force of the Industrial Dispute (Amendment) Act, 1982, by
which Section 2(r- a), Section 25T and Fifth Schedule were added along with some other
provisions. The Court has recognised protective right of the employer to transfer his employee
and also that an employee is free to challenge the order of transfer on the ground of mala fide
and victimisation, unfair labour practice etc. That has been done by the Amending Act which
statutorily treats the transfer of a workman as an act of unfair labour practice. This amendment,
however, does not lead to a further conclusion that other transfer effected by the employer
automatically becomes an industrial dispute. Before any challenge regarding transfer of an
employee who is working under the Industrial Disputes Act, 1947, can be made a subject matter
of reference, it has to be satisfied that industrial dispute exists or is apprehended. Labour Court
or Industrial Court will get jurisdiction to make an adjudication in the matter of transfer only
when it can be treated to be an industrial dispute. Although in the decisions of the Madras High
Court in Tamil Nadu Mercantile Bank Ltd., Tuticorin v. T. Venkatesan, T. Rajaiah v. Southern
Roadways Ltd., decision of the Kerala High Court in Kerala Rubber and Reclaims Ltd. v. PA.
Sunny (supra) and decision of the Karnataka High Court in Y. Mookan v. Southern Roadways
(supra) to which reference has been made hereinabove, it has been held that Civil Courts have
jurisdiction to examine the validity of transfer of a workman, a thorough reading of all these
decisions shows that neither of the High Courts has examined the issue in the context of the
definition given to the term 'industrial dispute' by the Supreme Court in Bombay Union of
Journalists v. 'The Hindu', Bombay (1961-II-LLJ-436). In all these judgments, the Courts have
proceeded on an assumption that a dispute relating to transfer is always an industrial dispute,
even though it may not be espoused by the Trade Union or by a substantial number of workmen.
Moreover, these decisions do not take note of observations made by the Supreme Court even in
Premier Automobiles case (supra) which have been quoted by me in the earlier part of this order.
With great respect, none of these decisions can be treated as laying down correct law. Rather
these decisions run contrary to the decisions of the Supreme Court in Bombay Union of
Journalists and others as well as Premier Automobiles case. In my considered opinion, a dispute
relating to transfer of a workman can be adjudicated by Labour Court/Industrial Court only when
it becomes industrial dispute. Otherwise, it is an individual dispute and only the Civil Court has
jurisdiction to make an adjudication on the legality of the action of the employer in relation to
transfer of his employee.

26. It is, therefore, held that the learned Additional Munsiff as well as learned Additional District
Judge No. 1, Kota have committed a serious error in holding that the Civil Court has no
jurisdiction to entertain the suit filed by the plaintiffs-petitioner.

27. The aforesaid conclusion, however, is not sufficient to give any relief to the petitioner. On
merit, I am of the opinion that learned Additional Munsiff as well as learned District Judge have
not committed any error in law warranting interference by this Court. A more or similar case of
transfer has been considered by me in S.B. Civil Revision Petition No. 241 of 1992, Hari Narain
Sharma v. Rajasthan Patrika Ltd. decided on August 11, 1992, and it has been held by this Court
that refusal of trial Court to grant injunction in the matter of transfer is neither unjustified nor
illegal.

28. On the basis of above discussion it is held that Civil Court has jurisdiction to entertain
grievance of a person who falls within the definition of workman under the Industrial Disputes
Act, 1947 in relation to his service condition unless it becomes an industrial dispute by espousal
as contemplated by the decisions of the Supreme Court in the Bombay Union of Journalists v.
'The Hindu', Bombay (supra) and Premier Automobiles (supra). However, I find that there is no
justification for interfering with the order passed by the learned Munsiff and the learned
Additional District Judge. The revision petition is, therefore, dismissed. Costs made easy.
CASE 2 : RAM SWAROOP SHARMA VS COAL INDIA LTD 1998

1. This appeal is directed against a judgment and order dated September 11, 1991 passed by a
learned single Judge of this Court in C.O. No. 11358 (W) of 1991 whereby and whereunder the
said learned Judge, inter alia, held that the writ application is not maintainable. The petitioner
was a workman of the Eastern Coal Fields Ltd. Admittedly there existed a dispute as regards his
age. The petitioner was superannuated by an order passed by the competent authority of the
Eastern Coal Fields Ltd. upon attaining the age of 60 years which was disputed by the petitioner.
The petitioner filed a writ application before this Court and the same was disposed of with a
direction upon the respondent to refer the matter to the Apex Medical Board and it was further
indicated therein that the decision of the Apex Medical Board shall be binding both upon the
petitioner as well as upon the respondent. Pursuant to the said order, the petitioner was examined
by the Medical Board. The decision arrived at by the Medical Board was a subject-matter of the
writ application before the learned trial Judge. Before the learned trial Judge as also before us,
the learned counsel appearing on behalf of the appellant submitted that the Apex Medical Board
has failed to take into consideration the documents which were procured subsequent to passing
of the order relating to his date of birth.

2. Keeping in view the fact that the dispute as regard age of a workman is a private dispute and
can be determined only upon adduction of evidence, normally this Court cannot exercise its
jurisdiction under Article 226 of the Constitution of India. It appears that in the earlier writ
application a direction was issued for referring the case of the petitioner to the Apex Medical
Board, pursuant to the policy decision taken in that regard by the respondent company. If the
Apex Medical Board was required to examine the petitioner medically, it was not required to
exercise a quasi judicial function. In any event, in terms of the order passed by this Court in the
earlier writ application the petitioner and the respondent were bound by the decision arrived at
by it.

3. In that view of the matter, we are of the opinion that the learned trial judge has rightly held
that a fresh writ application was not maintainable. Furthermore, we are of the opinion that this
writ application does not involve any public law character.

4. For the reason aforementioned there is no merit in this appeal which is accordingly dismissed.

There will be no order as to costs.

Ronojit Kumar Mitra, J.

5. I agree.
CASE 3 : GENERAL MANAGER (OPERATIONS), STATE BANK OF INDIA VS STATE
BANK OF INDIA STAFF UNION 1998

The appellants, representing the state Bank of India have challenged a decision of the Andhra
Pradesh High Court setting aside a Circular issued by the State Bank of India dated 28.1.1987 as
also a Circular in the same terms dated 7.3.1987, as violating Section 9-A of the Industrial
disputes Act, 1947 read with the Fourth Schedule. The respondents to the present appeal are the
State Bank of India Staff Union, Hyderabad Circle and the second respondent who is a person
aggrieved by the Circulars.

The Rules of Conduct of the Award staff of the State Bank of India which were in force at all
material times, provide, inter alia, that "an employee of the bank may not take active part in
politics or in any political demonstration, nor may an employee accept office on a Municipal
Council or other public body without the prior sanction of the bank". In respect of officers of the
appellant-Bank, prior to 28th of January, 1987, under the State Bank of India Supervising Staff
Service Rules, and officer who wanted to contest an election to Parliament, State assemblies,
Municipal council etc. had to resign from the bank's service before doing so. In the case of the
Award staff, however, permission to contest such an election could be considered by the General
Manager on certain conditions and on the employee giving an undertaking that he was not and he
would not become a member of a political party, that he was not being nominated by a political
party and that he would not be required to be present in the Council/Body during office hours.
He also would not receive any remuneration and would not plead his membership of such a body
as a bar to his transfer. If he violated any condition of his undertaking, it would be open to the
bank to call upon him not to continue in his office in the above mentioned public or civic body.

According to the appellants-bank, cases came to their notice where employees who had been
elected to public/civic office had not been performing their normal day's work, causing
inconvenience to the bank and its customers. There were also some cases of employees indulging
in restrictive practices or favouring certain political parties for obtaining benefits from the
appellant-bank. The appellant- bank, therefore, issued a Circular on 28.1.1987 to the effect that
the local head offices will, in future, while considering the request of an Award employee to seek
election to any public/civic body, first thoroughly examine whether his contesting the election
will interfere or would be likely to interfere with his duties in the bank. The local Head offices
were also directed to obtain an undertaking from the employee indicating that (1) his contesting
election will not interfere with his duties in the bank and he will not take any undue advantage of
his position in the bank and (2) in case he gets elected, he will immediately resign from the
bank's service, failing which he will be liable to be discharged or he bank would be free to treat
his letter seeking permission as a letter of resignation from the day he is declared elected. The
Circular of 7.3.1987 gives a capsule of previous instructions and repeats the Circular of
28.1.1987.

The Second respondent, who was a Clerk in the appellant-bank, Hyderabad Circle, on 18.2.1987
sought permission of the appellant-bank for contesting elections to the Municipal Council of
Rtsepalle. Although he did not receive permission, he filed his nomination. He was thereafter
informed by the bank on 5.3.1987 that his application for permission to contest the election could
not be granted unless he gave an undertaking that he would resign from the bank's service on his
getting elected. Thereupon the respondents filed a writ petition before the Andhra Pradesh High
Court challenging the two Circulars of 28.1.1987 and 7.3.1987. The High Court has held that
these two circulars amount to a change in the conditions of service of workmen and are violative
of Section 9-A of the Industrial Disputes Act, 1947.

We fail to see how these circulars can be said to violate Section 9-A of the Industrial Disputes
act, 1947. Under Section 9-A no employer, who proposes to effect any change in the conditions
of service applicable to any workman in respect of any matter specified in the Fourth Schedule,
shall effect such change without notice as prescribed in that Section. Schedule Four sets out the
conditions of services for change of which notice is required to be given under Section 9-A. The
conditions of service prescribed in the Fourth Schedule include, inter alia, wages, contribution to
any provident fund or pension fund, compensatory and other allowances, hours of work, leave
etc. Condition 8 is: "Withdrawal of any customary concessions or privileges clearly relate to
conditions of service or work. Participating in an election to a Municipal Council or local body is
not a customary privilege connected with conditions of service of work. The Circulars of
28.1.1987 and 7.3.1987, therefore, do not bring about any change in the conditions of service of
a workman. the Rules of Conduct of the Award staff have always included a Rule to the effect
that the employee of the bank may not accept office on Municipal Council or other public body
without prior sanction of the bank. The Circulars, therefore, do not bring about nay change in
this Policy. The appellants have explained that the appellant-bank is a public sector undertaking
set up for carrying out a public purpose. As an employer, the appellant-bank is a public sector
undertaking set up for carrying out a public purpose. As an employer, the appellant-bank has to
ensure that the employees carry out their functions without being influenced in any manner and
their behaviour does not give rise to any talk of favouritism in granting loans, credit facilities or
other facilities of the bank. When a person contests elections to a municipal or public body he
naturally seeks support from political parties or various other persons in his constituency.
Without their support it is not possible for a person a get elected. In turn, the elected person will
be under an obligation to those persons who are responsible for his election. Such an elected
person, if he is an employee of a public sector bank which deals with sanction of loans,
advances, overdrafts etc., may be in a position to use his influence with officers regarding
granting of these facilities. In order, therefore, that the functioning of the bank if free from
political influences and favouritism, and in order to ensure that the employees attend to their
duties during office hours, the Circulars have been issued.

The same Circulars were challenged before the Delhi High Court by an employee of the
appellant-bank at Saharanpur branch in Uttar Pradesh. The petitioner before the Delhi High
Court also desired to contest elections to the local Municipal council. The Delhi High Court
upheld the decision of the management that the petitioner's continuance as Municipal Counsellor
does affect his work in the bank and that there was no question of any violation of Article
19(1)(a), (b) and (c) of the Constitution. This decision of the Delhi High Court was upheld by
this Court by a Bench of three judges by its short speaking order dated 5.4.1991 dismissing the
special leave petition from the judgment of the Delhi High Court.
Before the Delhi High Court the Provisions of the Industrial Disputes Act, 1947 were not
invoked in respect of these Circulars, as has been done in the present case. There is, however, no
merit in the challenge to these Circulars under Section 9- A of the Industrial Disputes Act, 1947
for reasons which we have set out above.

The appeal is, therefore, allowed and the impugned judgment and order of the Andhra Pradesh
High Court is set aside. There will, however, be no order as to costs

CASE 4 : VIDYA DHAR VS THE HINDUSTAN COPPER LTD 1994

Brief facts of the case are that the petitioner joined service of Hindustan Copper Limited at
Khetri complex on his appointment as Smelter (C) by order dated October 5, 1973. On account
of his alleged participation in the strike the employer invoked Clause 7 of the Model Standing
Orders and terminated petitioner's service with effect from February 28, 1975. However, he was
reappointed with effect from March 8, 1975 after he had tendered unqualified apology. Then he
was promoted as Smelter (B).

3. Against the order of dismissal as well as; the order passed by the appellate authority, the
petitioner filed writ petition before the High Court. His Writ Petition No. 1594/86 Vidya Dhar v.
Hindustan Copper Limited was decided by the High Court on October 16, 1986. The High
Court quashed the order passed by the appellate authority and directed the Company to place the
appeal of petitioner before the competent authority. The Court also observed that the penalty of
dismissal awarded against the petitioner, prima facie appeared to be disproportionate. However,
the matter was left to be decided by the appellate authority even on the question of quantum of
punishment.

6. In reply the respondents have raised a preliminary objection to the entertainability of the writ
petition on the ground that an equally efficacious alternative remedy is available to him under the
Industrial Disputes Act, 1947. Respondents have also raised objection regarding delay in filing
of the writ petition. They have pleaded that the writ petition has been filed after three years of the
passing of the order of punishment and over one year and six months of the passing of appellate
order. He has not explained this long delay in the filing of writ petition. Yet another objection
raised by the respondents is that Hindustan Copper Limited is not a State under Article 12 of
the Constitution of India and, therefore, the petitioner cannot invoke provisions of Part III of the
Constitution for getting relief.
CASE 5 : HINDALCO WORKERS UNION VS LABOUR COURT 1994
Once the misconduct is established, the maximum punishment stipulated
therefore can be awarded. However, the labour court has full discretion to award
lesser punishment.