MILKHI RAMversusHIMACHAL PRADESH STATE ELECTRICITY BOARD

                        [2021] 6 S.C.R. 1131                             1131


                           MILKHI RAM                                    A
                                  v.
    HIMACHAL PRADESH STATE ELECTRICITY BOARD
                   (Civil Appeal No. 1346 of 2010)
                        OCTOBER 08, 2021                                 B
    [R. SUBHASH REDDY AND HRISHIKESH ROY, JJ.]
      Industrial Disputes Act, 1947 – Termination – Suit before civil
court – Maintainability of – Held: Civil court lacks jurisdiction to
entertain a suit structured on the provisions of the ID Act – Thus, in
                                                                         C
the present case the decree favouring the appellant-employee is a
legal nullity – Finding of the High Court to this extent, upheld –
However, considering the hardship to the appellant, the arrear paid
pursuant to the court’s decree not to be recovered.
      Dismissing the appeal, the Court
                                                                         D
       Held: 1.1 The civil courts may have the limited jurisdiction
in service matters, but jurisdiction may not be available to Court
to adjudicate on orders passed by disciplinary authority. The
authorities specified under the Industrial Disputes Act, 1947
including the appropriate government and the industrial courts
perform various functions and the ID Act provides for a wider            E
definition of “termination of service”, the condition precedent of
termination of service. The consequence of infringing those, are
also provided in the ID Act. When a litigant opts for common law
remedy, he may choose either the civil court or the industrial
forum. In the present matter, the appellant has clearly founded          F
his claim in the suit, on the provision of the ID Act and the
employer therefore is entitled to raise a jurisdictional objection
to the proceedings before the civil court. The courts below
including the executing court negated the jurisdictional objection.
The High Court in Revision, however overturned the lower
court’s order and declared that the decree in favour of the plaintiff    G
is hit by the principle of coram non judice and therefore, the same
is a nullity. This Court is unable to accept the view propounded
by the courts below and is of the considered opinion that the civil
court lacks jurisdiction to entertain a suit structured on the
                                                                         H
                                1131
1132              SUPREME COURT REPORTS                           [2021] 6 S.C.R.


 A     provisions of the ID Act. The decree favouring the plaintiff is a
       legal nullity and the finding of the High Court to this extent is
       upheld. However, considering the hardship to the terminated
       employee, the arrear sum paid to him pursuant to the
       court’s decree, sould not be recovered. [Paras 13, 14, 16 and
       17][1135-E-H; 1136-A-B, E-F]
 B
               Rajasthan SRTC & Ors. Vs. Khadarmal 2006 (1) SCC
               59; Rajasthan SRTC & Anr. vs. Ugma Ram Choudhary
               2006 (1) SCC 61; Rajasthan SRTC vs. Krishna Kant
               1995 (5) SCC 75 : [1995] 3 SCR 1118; Rajasthan SRTC
               vs. Zakir Hussain 2005 (7) SCC 447 : [2005] 2 Suppl.
 C             SCR 786 – relied on.
               Transport Corporation and Ors. vs. Mohar Singh 2008
               (5) SCC 542 : [2008] 6 SCR 890 – referred to.
                                Case Law Reference
 D     [2008] 6 SCR 890                  referred to              para 11
       [1995] 3 SCR 1118                 relied on                para 15
       [2005] 2 Suppl. SCR 786           relied on                para 15
               CIVIL APPELLATE JURISDICTION: Civil Appeal No.1346 of
       2010.
 E
             From the Judgment and Order dated 06.11.2018 of the High Court
       of Himachal Pradesh at Shimla in Civil Revision No.16 of 2006.
               Ajit Singh Pundir, Arijeet Singh, Advs. for the Appellant.
               Naresh K. Sharma, Adv. for the Respondent.
 F             The Judgment of the Court was delivered by
               HRISHIKESH ROY, J.
             1. Heard Mr. Ajit Singh Pundir, learned counsel appearing for the
       appellant (plaintiff). Also heard Mr. Naresh K. Sharma, learned counsel
       appearing for the respondent (defendant).
 G
              2. The challenge here is to the judgment dated 6.11.2008 of the
       High Court of Himachal Pradesh whereunder the defendant’s Civil
       Revision No. 16/2006 was allowed with the observation that the civil
       court lacked jurisdiction to entertain the civil suit based on the Industrial
       Disputes Act, 1947 (for short “the ID ACT”) and therefore, the judgment
 H
   MILKHI RAM v. HIMACHAL PRADESH STATE ELECTRICITY                            1133
               BOARD [HRISHIKESH ROY, J.]

and decree in favour of the plaintiff are a nullity. The Court also opined     A
that a plea on absence of jurisdiction can be raised even at the stage of
execution of proceedings.
       3. The appellant was a daily wage employee under the Himachal
Pradesh State Electricity Board (hereinafter referred to as the “Board”).
The service of the temporary employee was dispensed with by order              B
dated 1.1.1985 issued by the Executive Engineer. This was challenged
in the Civil Suit No. 100/1985. The plaintiff claimed to have rendered
uninterrupted service for 2778 days and asserted the right to be regularized
after completion of 240 days of continuous service. The defendant per-
contra contended that the plaintiff never worked for a continuous period
of 240 days and as such he is disentitled to claim regularization.             C
       4. Whether the civil court has jurisdiction and whether the Plaintiff
had completed 240 days of uninterrupted service were the main issues
framed by the civil court. Both the issues ware answered in favour of
the plaintiff. The learned Judge referred to the provisions of Section
25B and 25F of the ID Act and noted that the plaintiff had rendered            D
service for well above 240 days in one year and therefore his service
could not have been terminated without complying with the statutory
requirement. Accordingly, the suit was decreed ordering reinstatement
of the plaintiff with back wages. The defendant was directed to also
consider regularization of service, for the plaintiff.                         E
       5. The Board challenged the above decision in the Civil Suit No.
100 of 1985, before the District Judge, Dharamshala by filing the Civil
Appeal No. 123/1988. The jurisdiction of civil court was again questioned
but the appellate court observed that the question of jurisdiction is a
mixed question of law and facts and since the litigation is continuing for
long, it would not be proper to relegate the plaintiff to the labour court.    F
According to the appellate court the workman was entitled to choose
the remedy either before the civil court or before the Industrial Court.
As the service of a daily wager was terminated, the same was treated
to be a retrenchment without compliance with Section 25F of the ID
Act. The decree favouring the plaintiff was accordingly upheld by              G
rejecting the jurisdictional objection raised by the Board.
       6. The judgment debtor’s further challenge to the decree were
not entertained and then the Board made the offer to appoint the
terminated daily wager to the post of LDC in the regular pay scale, with
effect from 1.9.2001 (Annexure P4). Responding to the appointment              H
1134                SUPREME COURT REPORTS                         [2021] 6 S.C.R.


 A     offer, the appellant gave a joining report on 1.9.2001 (Annexure P5), but
       since the same was hedged with various conditions, the joining report
       was not acted upon by the management.
               7. Following the above, the decree holder applied for execution of
       the decree (12.10.1988) in the Civil Suit No. 100 of 1985 before the Civil
 B     Judge (Junior Division). The judgment debtor raised a preliminary objection
       on the maintainability of the application with the projection that all back
       wages were paid to the decree holder and he was also offered the post
       of LDC on 22.8.2001 and since the decree holder gave a conditional
       joining report and was required to re-submit a joining report as per rules,
       nothing further is required to be done for execution of the decree. The
 C     executing court negated the Board’s objection and the application of the
       decree holder under Order XXI Rule 32 of the Code of Civil Procedure,
       1908 (for short “the CPC”) was allowed by directing the Board to give
       effect to the decree.
               8. The order of executing court was challenged by the Board in
 D     Civil Revision No. 16/2006. The Board contended before the High Court
       that the civil court had no jurisdiction to adjudicate a claim arising out of
       the ID Act and relief for the aggrieved employee could have been granted,
       only by the industrial court. It was further contended that plea of absence
       of jurisdiction can be raised at any stage and the present decree is a
       legal nullity.
 E
               9. On the other hand, the decree holder pointed out that concurrent
       findings are recorded in favour of the plaintiff. Moreover, the Court had
       answered the jurisdiction issue in favour of the plaintiff. As such the
       maintainability of the challenge in Revision before the High Court by the
       judgment debtor, was questioned by the terminated employee.
 F             10. To address the jurisdictional question posed by the employer,
       the learned Judge referred to the judgments in Rajasthan SRTC & Ors.
       vs. Khadarmal1, Rajasthan SRTC & Anr. vs. Ugma Ram Choudhry2
       and opined that the civil court did not have jurisdiction to entertain a
       claim based on the ID Act and if any decree is passed by the court
 G     without jurisdiction, the same shall have no force of law. Following the
       ratio in these two judgments, the High Court held that the civil court
       lacked inherent jurisdiction to entertain the suit based on the ID Act and
       the judgment and decree so passed, are nullity. It was further observed
       that the plea of decree being a nullity can also be raised at the stage of
       1
           (2006) 1 SCC 59
 H     2
           (2006) 1 SCC 61
      MILKHI RAM v. HIMACHAL PRADESH STATE ELECTRICITY                          1135
                  BOARD [HRISHIKESH ROY, J.]

execution. The Revision petition filed by the judgment debtor was               A
accordingly allowed by setting aside the decree passed in favour of the
plaintiff.
        11. Challenging the intervention of the High Court against the
decree holder, Mr. Ajit Singh Pundir, the learned counsel submits that
the appellant has rendered service as a daily wager since 11.12.1976            B
and his service could not have been terminated without following the
due process. According to the appellant’s counsel even when relief is
claimed based on the provisions of the ID Act, the jurisdiction of the civil
court is not entirely barred. In support of his contention, Mr. Pundir
relies upon Rajasthan State Road Transport Corporation and Ors.
vs. Mohar Singh3.                                                               C
        12. On the other hand, Mr. Naresh K. Sharma, the learned counsel
for the respondent Board, in support of the impugned judgment, reiterates
the contention made before the High Court and submits that jurisdiction
of the civil court is ousted when claimed relief is founded on the ID Act.
It is further argued that when the civil court had no jurisdiction, the         D
decree is nothing but a nullity and no relief on the basis of such void
decree can be claimed by the plaintiff. In order to demonstrate the
bonafide of the employer, Mr. Sharma refers to the letter dated 22.8.2001,
offering the post of LDC and how the said offer did not fructify only
because of the adamancy oftheappellant, who failed to furnish a proper
joining report. Insofar as the relief of back wages ordered by the civil        E
court, the counsel submits that the Board has already remitted the arrear
salaries to the appellant.
        13. The above contentions of the parties indicate that the only
issue to be considered here is whether the suit before the civil court at
the instance of the terminated employee, was maintainable. The civil            F
courts may have the limited jurisdiction in service matters, but jurisdiction
may not be available to Court to adjudicate on orders passed by disciplinary
authority. The authorities specified under the ID Act including the
appropriate government and the industrial courts perform various
functions and the ID Act provides for a wider definition of “termination
of service”, the condition precedent of termination of service. The             G
consequence of infringing those, are also provided in the ID Act. When
a litigant opts for common law remedy, he may choose either the civil
court or the industrial forum.

3
    (2008) 5 SCC 542                                                            H
1136                SUPREME COURT REPORTS                           [2021] 6 S.C.R.


 A            14. In the present matter, the appellant has clearly founded his
       claim in the suit, on the provisions of the ID Act and the employer
       therefore is entitled to raise a jurisdictional objection to the proceedings
       before the civil court. The courts below including the executing court
       negated the jurisdictional objection. The High Court in Revision, however
       has overturned the lower court’s order and declared that the decree in
 B
       favour of the plaintiff is hit by the principle of coram non judice and
       therefore, the same is a nullity.
              15. The cited cases i.e. Khadarmal (supra) and Ugma Ram
       Choudhry (supra) pertain to employees under the Rajasthan State Road
       Transport Corporation. The three judges Bench of this Court while
 C     adverting to the challenge to termination of service opined that the civil
       court has no jurisdiction to entertain such cases. For such conclusion,
       the court referred to two earlier decisions in Rajasthan SRTC vs. Krishna
       Kant4 and Rajasthan SRTC vs. Zakir Hussain5 and held that when
       civil court has no jurisdiction, the decree passed in those proceedings
 D     can have no force of law. On the back wages already disbursed to the
       terminated employee, in Ugma Ram Choudhry (supra), the court on
       equitable principles observed that the disbursed amount should not be
       recovered from the employee.
              16. As can be seen from the material on record, the challenge to
       the termination was founded on the provisions of the ID Act. Although
 E     jurisdictional objection was raised and a specific issue was framed at
       the instance of the employer, the issue was answered against the
       defendant. This Court is unable to accept the view propounded by the
       courts below and is of the considered opinion that the civil court lacks
       jurisdiction to entertain a suit structured on the provisions of the ID Act.
 F     The decree favouring the plaintiff is a legal nullity and the finding of the
       High Court to this extent is upheld.
              17. Consequently, the appeal is found devoid of merit and the
       same is dismissed. However, considering the hardship to the terminated
       employee, the arrear sum paid to him pursuant to the court’s decree,
       should not be recovered. It is ordered accordingly. The parties to bear
 G
       their own cost.
       Divya Pandey                                                   Appeal dismissed.




       4
           (1995) 5 SCC 75
       5
 H         (2005) 7 SCC 447