Holding

The Supreme Court held that the civil court’s jurisdiction is impliedly barred where the relief of reinstatement and back wages is available only under the Industrial Disputes Act, 1947.

Summary

Jitendra Nath Biswas, an employee of Empire of India & Ceylon Tea Co., was dismissed after a domestic enquiry for alleged misconduct. He filed a civil suit in the Munsiff Court seeking reinstatement, back wages and an injunction against the dismissal. The respondents contended that such relief was exclusively available under Section 2A of the Industrial Disputes Act, 1947, and that the civil court lacked jurisdiction. The trial court allowed the suit, but the Gauhati High Court reversed, holding the relief could only be granted under the Industrial Disputes Act and the civil court was barred. On appeal, the Supreme Court held that where the relief sought (reinstatement and back wages) is provided for only under the Industrial Disputes Act, the civil court's jurisdiction is impliedly excluded under Section 9 of the CPC, and the suit is therefore not maintainable. The appeal was dismissed.

Issues considered

Whether a civil court has jurisdiction to entertain a suit for reinstatement and back wages when such relief is available under the Industrial Disputes Act, 1947.
Whether the relief sought is expressly or impliedly barred under Section 9 of the Code of Civil Procedure.
Whether the discretion of the Government under Sections 10(1) and 12(5) of the Industrial Disputes Act affects the availability of the remedy in civil court.

Legislation cited

Code of Civil Procedure, 1908s. 9
Industrial Disputes Act, 1947s. 10, s. 12(5), s. 2A
Industrial Employment (Standing Orders) Act, 1946
Specific Relief Act, 1963s. 14(1)(b)

Subjects

industrial disputereinstatementback wagescivil court jurisdictionIndustrial Disputes Actimplied exclusionSection 9 CPCSpecific Relief Actdomestic enquirydismissal

Judgment

A JITENDRA NATH BISWAS
v.
EMPIRE OF INDIA & CEYLONE TEA CO. & ANR.

AUGUST 1, 1989

B [G.L. OZA AND K.N. SAIKIA, JJ.]

Industrial Disputes Act, 1947: Sections 2A, 10, 12(5)-Employee "'
whose services are terminated-Cannot seek relief of reinstatement or
backwages in a civil suit before the Civil Court.

The appellant-plaintiff, who was an employee of the respondent
c company, was dismissed from service on the bais ofa domestic enquiry
f -
held against him in respect of certain charges of misconduct. There- -.l<
upon, he filed a civil suit before the Court of Munsiff and sought the
relief of backwages and injunction not to give effect to the order of
dismissal. The respondents in their written statement raised inter alia
D the plea I.hat the suit was not maintainable as the relief sought was
available to the plllintiff nnder section 2A of the Industrial Disputes
Act, 1947. The Trial Coort came to the conclusion that the Civil Court
had the j~ to try the suit. The High Court, in revision, held
that the nature of the relief which was sought by the appellant-plaintiff
was such which could only be granted under the Industrial Disputes Act,
E and therefore the civil court had no jurisdiction to try the suit. "'
Before this Court it was contended on behalf of the appellant (i) on
the basis of the language of section 9 of the Code of Civil Procedure the
civil court bad jurisdiction to try all kinds of suits except those which
were either expressly or impliedly barred, and the High Court was not
F right in reaching the conclusion that it was impliedly barred; (ii) as the
remedy under the Industrial Disputes Act was discretionary, it could
not be said that there was a remedy available to the appellant under the
~
scheme of the Act and tltus the jurisdiction of the civil court could not
be barred by implication. On the other hand, it was contended on
behalf of the respondents that (i) the relief sought by the appellant in
G snbstance was the relief of reinstatement with backwages which relief
was available only in the Industrial Disputes Act; (ii) the Act itself
provided the procedure and remedy and it was not open to the appellant
to approach the civil court for getting the relief which he could get only i
under tlie scheme of the Act; and (iii) the discretion of the Government
to make a reference or not was not arbitrary.
H
Dismissing the appeal, this Court.
640
J.N. BISWAS '· EMPIRE OF INDIA 641

HELD: (I) It is clear that wherever the jurisdiction of the civil A
court was expressly or impliedly barred, the civil court will have no
jurisdiction. [644B]

(2) It is clear that except under the industrial law, under the law
of contract and the civil law, an employee whose services are terminated
B
could not seek the relief of reinstatement or backwages. At best, he
could seek the relief of damages for breach of contract.

(3) The manner in which the relief has been framed by the
\,- appellant in this case, although "" seeks a declaration and injunction
but in substance it is nothing but the relief of reinstatement and back-
wages. This relief could only be available to a workman under the c
" Industrial Disputes Act. [644C-D]

(4) The discretion of the, State Government for making a
reference under section 12(5) of the Industrial Disputes Act is not
arbitrary and it would not be said that the reference to the labour
court or tribunal is not available to a worker who raises an indus- D
trial dispute. I646G I

Bombay Union of Journalists & Ors. v. The State of Bombay &
Anr., [1964] 6 SCR 22; Calcutta Electric Supply Corporation Ltd. v.
Ramratan Mahato, AIR 1973 Cal 258; Dhulabhai etc. v. State of
Madhya Pradesh, AIR 1969 SC 78; Nanoo Asan Madhavan v. State of E
Kerala, [1970] Vol. I LW Kerala 272, referred to.

(5) In view of the language of section IO, read with section 12(5)
of the Industrial Disputes Act, an adequate remedy was available to the
L' appellant under the scheme of the lndiistrial Disputes Act itself which
F
is the Act which proyides for the relief of reinstatement and back-
wages which in fact the appellant sought before the civil court hy
filing a suit. [648B]

(6) The scheme of the Industrial Disputes Act clearly excludes
the jurisdiction of the civil court by implication in respect of re-

., medies which are available under the Industrial Disputes Act and
for which a complete procedure and machinery has been provided
in this Act. [649F-G]
G

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1750
of 1974.
H
642 SUPREME COURT REPORTS [1989] 3 S.C.R.

A From the Judgment and Order dated 7.3. 74 of the Gauhati High
Court in C.R. No. 96 of 1973.

A.R. Barthakur, J.D. Jain and Mrs. Kawaljit Kocher for the
Appellant.

B P.H. Parekh, Ms. Geetanjali Matbrari, Shishir Shanna for the
Respondents. '

The Judgment of the Court was delivered by

OZA, J. This appeal on leave bas been filed against the judg-
e ment of the Gauhati High Court delivered in Civil Revision No. 96 of
1973 decided on March 7, 1974. The short question that arises in this
appeal is in respect of the jurisdiction of the civil court to entertain a
suit that was filed against the respondent defendant. The appellant
plaintiff was an employee of M/s Empire of India and Ceylone Tea Co.
Pvt. Ltd Calcutta. The Manager of the Company who was defendant
D No. 2, on 16.10.1971 served a notice on the appellant plaintiff asking
him to explain certain charges of misconduct. In the course of
domestic enquiry held by the management, the appellant plaintiff was
ultimately dismissed from service on 28th November, 1971. According
to the appellant plaintiff the order of dismissal is contrary to the
provisions of the Standing Orders framed under Industrial Employ-
E ment (Standing Orders), Act, 1946 and on this grotind be sought the
relief of declaration that the dismissal is null and void and inoperative
as be was not guilty of any misconduct as no enquiry was conducted,
the dismissal was bad in accordance with the Standing Orders. He also
sought the relief of back wages and injunction not to give effect to the
order of dismissal. This suit was filed by the appellant plaintiff before
F the Court of Munsif. The defendant respondent in their written
statement raised the plea that the suit is not maintainable as the relief
which is sought is available to the appellant plaintiff under Section 2A
of the Industrial Disputes Act, 1947. It was also pleaded that the suit is
not maintainable under Section 14(l)(b) of the Specific Relief Act and
that the Civil Court has no jurisdiction to entertain the suit. The trial
G Court on the basis of these pleadings framed two preliminary issues
which were:

(i) Whether the suit is maintainable in the present form?

(ii) Whether this Court has jurisdiction to try the suit?
H
The trial court came to the conclusion that the Civil Cou..'1 has the
J.N. BJSWAS ,._ EMPIRE OF INDIA [OZA, J.j 643
.•..
·jurisdiction to try the suit and the suit is not barred because of Section . A
14( l)(b) of the Specific Relief Act. Against this order of the trial court
a revision petition was taken to the High Court and by the impugned
judgment the High Court held that the nature of relief which was sought
. by the appellant plaintiff was such which could only be granted under
...,, the Industrial Disputes Act and therefore the civil court had no
jurisdiction to try the suit. B

Learned counsel for the appellant on the basis of language of
. Section 9 of the Code of Civil Procedure contended that the civil court
.J..,.;vill have jurisdiction to try all kind of suits except .those which are
·either expressly or impliedly barred and on this basis it was contended
·~ that there is no express bar on the jurisdiction of the Civil Court and
the High Court was not right ill' reaching the conclusion that it was
c
impliedly barred whereas learried counsel for the respondent con-
tended that the relief which was sought by the appellant plaintiff in
substance was the relief of reinstatement with back wages which relief
is not the right of the appellant plaintiff under the contract or under
the civil law. This right is only conferred on him because of the D
Industrial Disputes Act and the relief which is available only in the
Industrial Disputes Act. The Act itself provides the procedure and
~ remedy and it is not open to the appellant to approach the Civil Court
for getting the relief which he could only get under the scheme of the
procedure of conciliation, reference to the labour court and ultimately
decision of the labour court. It was in the scheme of the Industrial E
Disputes Act itself that the enforcement of the Standing Orders could
be made and an order which is not in accordance with the Standing
Orders could be set aside and the relief as was claimed by the appellant
l · plaintiff could be granted. It is in this view that the jurisdiction of the
~civil court is impliedly barred. Learned counsel placed reliance on the
· decision of this Court in Bombay Union of Journalists & Ors. v. The F
State of Bombay & Anr., [ 1964) 6 SCR 22.

Section 9 of the Code of Civil Procedure reads:

"Courts to try all civil suits unless barred-The Courts shall
(subject to the provisions herein contained) have jurisdic- G
tion to try all suits of a civil nature excepting suits of which
their cognizance is either expressly or impliedly barred.

Explanation (1)-'A suit in which the right to property or to
an office is contested is a suit of a civil nature, notwith-
standing that such right may depend entirely on the H
644 SUPREME COURT REPORTS [1989] 3 S.C.R.

A decision of questions as to religious rites or ceremonies.

Explanation II-For the purposes of this Section it is
immaterial whether or not any fees are attached to the
office referred to in Explanation I or whether or not such
office is attached to a particular place."
B
It is clear that wherever the jurisdiction of the civil court is expressly or
impliedly barred, the civil court will have no jurisdiction. It could not
be disputed that a contract of employment for personal service could .
not be specifically enforced and it is also clear that except the , j
industrial law, under the law of contract and the civil law' an employee r-
C whose services are terminated could not seek the relief of reinstate-
ment or backwages. At best he could. seek the relief of damages for
breach of contract. The manner in which the relief has been framed by
the appellant plaintiff in this case, although he seeks a declaration and
injunction but in substance it is nothing but the relief of reinstatement
and backwages. The relief which could only be available to a workman
D under the industrial Disputes Act.

It is not disputed before us that the Industrial Disputes Act was
applicable to the present case and it is also not disputed that the
Industrial Employment (Standing Orders) Act was also applicable. It
is also not in dispute that the enquiry for misconduct was conducted
E against the appellant in accordance with the Standing Orders and the
main plea which was raised by the appellant plaintiff was that the
enquiry was not strictly in accordance with the Standing Orders. It is in
this context that the learned Judge of the High Court came to the
conclusion that the civil court will have no jurisdiction to try the
present suit.
F
Learned counsel appearing for the appellant plaintiff mainly
contended that in the scheme of the Industrial Disputes Act, the
starting· point for an industrial dispute i~ the conciliation proceedings
and if the conciliation proceedings fail then the conciliation officer is
expected to submit his report to the Govt. as contemplated under
G Section 12 and thereafter it is the discretion of the Govt. to make a
reference to the labour court. He frankly conceded that if a reference
is made then the labour court will have jurisdiction to determine the
dispute as was raised by the appellant before the civil court but
according to the learned counsel. as firstly it is the discretion of the
conciliation officer to proceed with the conciliation proceedings and
H even after the report of the conciliation officer, it is the discretion of
J.N. BISWAS '· EMPIRE OF INDIA [OZA. J.I 645

the State Govt. to make a reference or not. Thus it could not be said
that there is a remedy available to the appellant under the scheme of
the Industrial Disputes Act and thus the jurisdiction of the civil court
could not be barred by implication. Learned counsel placed reliance
on the decision in Calcutta Electric Supply Corporation Ltd. and
another v. Ramratan Mahato, AIR 1973 Calcutta 258. Learned counsel
for the appellant also contended that the decision in Dhulabhai etc. v. B
State of Madhya Pradesh and another, AIR 1969 SC 78 also helps him
to some extent. On the other hand the learned counsel fm the
respondent contended that in view of decision in Bombay Union of
~Journalists case the discretion of the Govt. to make a reference or not
· . is not arbitrary and in appropriate cases if the Govt. chooses not to
make a reference, a direction could be issued under Article 226 by the c
High Courts. It was contended that after this decision of this Court,
the contention that remedy under the Industrial Disputes Act is
merely discretionary is not at all available to the appellant. Learned
counsel also placed reliance on the Dhulabhai's case and Nanoo Asan
Madhavan v. State of Kerala and others, [1970] Vol. I LU Kerala 272.
D
It is not in dispute that the dispute which was raised by the
appellant plaintiff fell within the ambit of the definition of 'industrial
dispute' as defined in Section 2(k) of the Industrial Disputes Act. It is
also no in dispute that the dispute can be taken up by conciliation
officer under Section 12. Section 12 of the Industrial Disputes Act
provides that when the conciliation officer fails he has to make a report E
as provided in sub-clause (4) of Section 12. Section 12 reads:

"Duties of Conciliation Officers-(!) Where any industrial
dispute exists or is apprehended, the conciliation officer
may, or where the dispute relates to a public utility service
and a notice under Section 22 bas been given, shall, hold F
conciliation proceedings in tbe prescribed manner.

(2) The conciliation officer shall, for the purpose of
bringing about a settlement of the dispute, without delay,
investigate the dispute and all matters affecting the merits
and the right settlement thereof and may do all such things G
as he think.s fit for the purpose of inducing the parties to
come to a fair and amicable settlement of the dispute.

(3) If a settlement of the dispute or any of the
matters in dispute is arrived at in the course of the
conciliation proceedings the conciliation officer shall send H
646 SUPREME COURT REPORTS [1989] 3 S.C.R.

A a report thereof to the appropriate Government (or an
officer authorised in this behalf by the appropriate
Government) together with a memorandum of the settle-
ment signed by the parties to the dispute.

(4) If no such ·settlement is arrived at, the concilia-
B tion· officer shall, as soon as practicable after the close of
the investigation, send to the appropriate Government a
full report setting forth the steps taken by him for ascer-
taining the facts and circumstances relating to the dispute
and for bringing about a settlement thereof, together with a~
full statement of such facts and circumstances, and the
reasons on account of which, in his opinion, a settlement
c could not be arrived at.

(5) If, on a consideration I of the report referred to
in sub-section (4), the appropriate Government is satisfied
that there is a case for reference to a Board (Labour Court,
D Tribunal or National Tribunal), it may make such re-
ference. Where the appropriate Government does not
make such a referece it shall record and communicate to
the parties concerned its reasons therefor.

(6) A report under this Section shall be submitted
E within fourteen days of the commencement of the con-
ciliation proceedings or within such shorter period as may
be-fixed by the appropriate Government.

Provided that subject to the approval of the con-
ciliation officer, the time for. the submission of the repo.rt
may be extended by such penod as may be agreed upon m
J , ·
F
writing by all the parties to the dispute."

Sub-clause (5_) provides for making a reference by the State Govt. to a
labour court or an appropriate Tribunal. In Bombay Union of
Journalists case it has been held that the discretion of the Government
G is a discretion which has been exercised not arbitrarily and therefore it
could not be said that the reference to the labour court or tribunal is
not available to a worker who raises in industrial dispute. It was
observed.

"This argument must be rejected, because when the
appropriate Government considers the question as to
H
J.N. BISWAS v. EMPIRE OF INDIA [OZA, J.] 647

whether a reference should be made under s. 12(5), it has A
to act under s. 10(1) of the Act and s. 10(1) confers
discretion on the appropriate Government either to refer
the dispute, or not .to. refer it, for industrial adjudication
according as it is of the opinion that it is expedient to do so
or not. In other words, in dealing with an industrial dispute
in respect of which a failure report has been submitted B
under s. 12(4) the appropriate Government ultimately
exercises its power under's. 10(1), subject to this thats.
12(5) imposes an obligation on it to record reasons for not
• making the reference when the dispute has gone through
~·
. conciliation and a failure report has been made under s.
12(4). This question has been considered by this Court in C
the case of the State of Bombay v. K.P. Krishnan & Others,
[ 1961] I SCR 227. The decision in that case clearly shows
that when the appropriate Government considers the
question as to whether any industrial dispute should be
r~ferred for adjudication or not, it may consider, prima
facie, the merits of the dispute and take into account other D
relevant considerations which would help it to decide
whether making a reference would be expedient or not. It
i~ true that if the dispute in question raise questions of law,
the appropriate Government should not purport to reach a
final decision on the said questions of law, because that
would normally lie within the jurisdiction of the Industrial F.
Tribunal. Similarly, on disputed questions of fact, the
appropriate Government cannot purport to reach final
conclusions, for that again would be the province of the
Industrial Tr.bunal. But it would not be possible to accept
the plea that the appropriate Government is precluded from
considering even prima facie the merits of the dispute when
F
it decides the question as to whether its power to make a
reference should be exercised under s. 10(1) read withs.
12(5) or not. If the claim made is patently frivolous, or is
clearly belated, the appropriate Government may refuse to
make a reference. Likewise, if the impact of the claim on
tlje general relations between the employer and the
employees in the region is likely to be adverse, the G
appropriate Government may take that into account in
deciding whether a reference should be made or not. It must
therefore be held that a prima facie examination of the
merits cannot be said to be foreign to the enquiry which the
appropriate Government is entitled to make·in dealing with
H
a dispute under s. 10(1), and so, the argument that the
048 SUPREME COURT REPORTS [1989] 3 S.C.R.
)•
A appropriate Government exceeded its jurisdiction in
expressing its prima facie view on the nature of the
termination of service of appellants 2 and 3, cannot be
accepted."

It is therefore clear that that in view of language of Section IO read
B with Section 12(5) as has been held by this Court an adequate remedy
is available to the appellant plaintiff under the scheme of the Industrial
Disputes Act itself which is the Act which provides for the relief of
reinstatement and back wages \which in fact the appellant sought
before the civil court by filing a suit. Section IO of the Industrial ~ •
Disputes Act reads:
c ·'Reference of disputes to Boards, Courts or Tribunals-
( !)-Where the appropriate Government is of the opinion
that any industrial dispute exists or is apprehended, it may
at any time, by order in writing-

D (a) refer the dispute to a Board for promoting a
settlement (hereof; or

(b) refer any matter appearing to be connected with
or relevant to the dispute to a Court for inquiry; or

E (c) refer the dispute or any matter appearing to be
connected with, or relevant to, the dispute, if it relates to
any matter specified in the Second Schedule, to a Labour
Court for adjudication; or

(d) refer the dispute or any matter appearing to be
connected with, or relevant to, the dispute, whether it
J,
F
relates to any matter specified in the Second Schedule or
the Third Schedule, to a Tribunal for adjudication:

Provided that where the dispute relates to any matter
specified in the Third Schedule and is not likely to affect
G more than. one hundred workmen, the appropriate
Government may, if it so thinks fit, make the reference to a
Labour Court under clause (c);

Provided further that where the dispute relates to a
public utility service and a notice under Section 22 has been
H given, the appropriate Government shall, unless it con-
J.N. BISWAS ,.. EMPIRE OF INDIA [OZA, J.J 649

> siders that the notice has been frivolously or vexatiously A
given or that it would be inexpedient so to do, make a
reference under this sub-section notwithstanding that any
other proceedings under this Act in respect of the dispute
may have ~ommen~.ed:

Provided also that where the dispute in relation to B
which the Central Government is the appropriate Govern-
ment, it shall be competent for that Government to refer
the dispute to a Labour Court or an Industrial Tribunal, as
the case may be, constituted by the State Government."
' It is therefore clear that this Act i.e. Industrial Disputes Act not only
+ confers the right on a worker for reinstatement and backwages if the
c
order of termination or dismissal is not in accordance with the
Standing Orders but also provides a detailed procedure anJ machinery
for getting this relief. Under these circumstances therefore there is an
apparent implied exclusion of the jurisdiction of the civil court. In
Dhulabhai's case a five-Judges Bench of this Court considered the D
language of Section 9 and the scope thereof in respect of exclusion. of
jurisdiction and it was observed:
•I "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
E
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 Thall be determined by the tribun~Js so constituted, ·
and whether remedies normally associated with actions in
civil courts are prescribed by the said statute or not." F

It is therefore clear that 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.
Under these circumstances therefore so far as the present suit G
filed by the appellant plaintiff is concerned, there appears to be no
doubt that civil court had no jurisdiction and the High Court was right
in coming to the conclusion. The appeal is therefore dismissed but as it
is an appeal filed by an employee who Jost his employment long ago,
parties are directed to bear their own costs.
H
R.S.S. Appeal dismissed.