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Bhimraj v/s Rajasthan State Road Transport Corporation & Another

    Civil Second Appeal Nos. 195 of 1993-197 of 1993

    Decided On, 07 September 2011

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE KAILASH CHANDRA JOSHI

    For the Appellant: A.K. Choudhary, Advocate. For the Respondents: S.P. Sharma, Advocate.



Judgment Text

Kailash Chandra Joshi, J.

1. These three second appeals are being disposed of by this common judgment because though all the three appeals have been filed against different judgments passed by the first appellate court, but the substantial question of law framed by this court at the time of the admission in all the three appeals is the same and which is as under :-

"Whether the suit as framed was not maintainable in the civil court?"

2. The appeal filed by appellant-plaintiff Bhimraj is directed against the judgment dated 27.09.1993 passed by Additional Civil Judge No.2, Udaipur in Civil Appeal No. 70/1990, whereby the learned first appellate court allowed the appeal of the defendant-respondent R.S.R.T.C. and set aside the judgment and decree dated 14.02.1990 passed by the Munsif and Judicial Magistrate, First Class, Udaipur City (South) in Civil Suit No. 27/1985.

3. The appeal filed by appellant-plaintiff Jugal Kishore is directed against the judgment dated 27.09.1993 passed by Additional Civil Judge No.2

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, Udaipur in Civil Appeal No. 58/1990, whereby the learned first appellate court allowed the appeal of the defendant-respondent R.S.R.T.C. and set aside the judgment and decree dated 19.04.1985 passed by the Munsif and Judicial Magistrate, Udaipur City (South) in Civil Suit No. 149/1982.

4. The appeal filed by appellant-plaintiff Gehrilal is directed against the judgment dated 27.09.1993 passed by Additional Civil Judge No.2, Udaipur in Civil Appeal No. 28/1990, whereby the learned first appellate court allowed the appeal of the defendant-respondent R.S.R.T.C. and set aside the judgment and decree dated 01.06.1988 passed by the Munsif and Judicial Magistrate, First Class, Udaipur City (South) in Civil Suit No. 322/1981.

5. The brief facts of the case are that the appellant plaintiffs were appointed as Conductors in R.S.R.T.C on different dates and as per the submissions made in the plaints they were working for different periods on the date of their termination from the service. The services of the appellants were terminated by different orders after conducting the departmental enquiries against them. Against the order of termination, the appellant plaintiffs filed three different suits for declaration alleging that the order of termination passed against them is illegal, void and ultra vires and is not binding upon them. They further pleaded that the order of the termination is against the principles of natural justice. They prayed that the order of the termination may be set aside and it may be declared that the appellant plaintiffs are entitled to continue in service without any break and further they prayed for Rs. 1500/- per month as damages for mental agony.

6. The respondent-defendant R.S.R.T.C in the written statement denied the allegation of violation of the principles of natural justice and stated that the services of the appellants were terminated after due process and enquiry because while surprise inspection of the bus, some passengers were found without tickets and the fare for the same had been received by the appellant-plaintiffs.

7. On the basis of the pleadings of the parties, the Page 3 of 8S.B. Civil Second Appeal No. 195, 196 & 197 of 1993 learned trial court framed 3 issues in the civil suit of Bhimraj, 7 issues in the civil suit of Jugal Kishore and 4 issues in the civil suit of Gehrilal, but the common issue framed in all the three suits by the trial court was regarding the jurisdiction of the civil court to hear such suits and this issue was framed on the objection taken by the respondent-defendant in their written statement regarding the bar of jurisdiction of the civil court to entertain such civil suits.

8. The learned trial court in all the three suits decided the issue of jurisdiction in favour of the appellant-plaintiffs and decreed the suits in their favour. The respondent-defendant R.S.R.T.C. preferred appeals against the judgments and decrees of the learned trial court. The learned first appellate court while deciding the issue regarding the jurisdiction of the civil court, set aside the findings of the learned trial court and allowed the appeals filed by the respondent-defendants and thereby dismissed the suits of the appellant-plaintiffs on this ground.

9. Aggrieved by the judgments of the learned first appellate court, the appellant-plaintiffs have preferred these three second appeals, wherein a common substantial question of law has been framed by this court.

10. Heard the learned counsel for the appellants and the learned counsel for the respondents.

11. The learned counsel for the appellants invited my attention to the relevant discussion made by the learned trial court. While citing the judgment of the Hon'ble Apex Court in Rajasthan State Road Transport Corporation & Anr. v. Krishna Kant & Ors. reported in (1995) 5 SCC 75, the learned counsel for the appellants contended that in the present case, the decree in favour of the appellants was passed on 14.02.1990, 19.04.1985 and 01.06.1988 and the first appellate court decided the appeals vide orders dated 27.09.1993, i.e. before pronouncement of the judgment in the case of Krishna Kant (supra). The learned counsel for the appellants contended that the entire judicial pronouncement of the Hon'ble Apex court favours the appellants and disfavours the respondents herein. He further invited our attention towards two passages of the above judgment, which are reproduced hereunder:-

"These principles enunciated in this judgment shall apply to all pending matters except where decrees have been passed by the trial court and the matters are pending in appeal and second appeal, as the case may be."

"These orders are made in view of the fact that position of law was not clear until now and it cannot be said that the respondents had not acted bona fide in instituting the suits."

12. The learned counsel for the appellants further drew my attention towards the judgment of the Hon'ble Apex Court in Rajasthan S.R.T.C. & Ors. v. Mohar Singh, reported in 2008 AIR SCW 3567.

13. The learned counsel for the respondents contended Page 5 of 8S.B. Civil Second Appeal No. 195, 196 & 197 of 1993 that the civil court has no jurisdiction to deal with such matters because the Conductor of the Rajasthan Road Transport Corporation comes within the definition of workman and such disputes can only be resolved through Industrial Tribunal because it is an industrial dispute. The learned counsel for the respondents in support of his argument relied upon the judgment of the Hon'ble Supreme Court in Appeal (Civil) No. 5176/2005 (Rajasthan State Road Transport Corporation & Ors. v. Zakir Hussain), passed on 22.08.2005. The learned counsel for the respondents contended that the ratio of the decision in the case of Krishna Kant (supra) has been thoroughly considered by the Division Bench of the Hon'ble Supreme Court in the case of Zakir Hussain. He further contended that the Hon'ble Apex Court in the case of Mohar Singh (supra) also considered the case of Krishna Kant and in para No. 16 of said judgment the Hon'ble Apex Court held that in Krishna Kant (supra), the Apex Court opined that where a dispute involves recognition of servant and enforcement of rights and obligations created under the Industrial Disputes Act and/or its sister enactments such as Industrial Employees (Standing Orders) Act, the Civil Court will have no jurisdiction. Thus, the Division Bench of the Hon'ble Supreme Court in Zakir Hussain (supra) clearly pronounced that in such cases civil court has no jurisdiction and the said judgment is binding upon this court.

14. I have considered the rival contentions raised by learned counsel for both the parties and also perused the judgments of the learned trial court and the first appellate court as well as the judgments cited by the counsel.

15. In the instant case, the appellants filed suits for declaration of the order of termination as void, illegal, against the principles of natural justice and not binding upon the appellant-plaintiffs. It is settled position of law that where an Act creates an obligation and enforces the performance in a specified manner, the performance cannot be enforced in any other manner. The appellants in the present case have failed to approach the remedies provided under the Industrial Disputes Act and simply filed the suits before the civil court, which in the facts and circumstances of the case, had no jurisdiction to entertain and try such suits, therefore, the judgments rendered by the Hon'ble Apex Court in the case of Krishna Kant (supra) and Zakir Hussain (supra) squarely apply to the facts and circumstances of the present case also. In my view, the appellant-plaintiffs are not entitled to get decree of declaration of termination order as void, illegal or against the principles of natural justice.

16. In the aforesaid view of the matter, it is clear that the substantial question of law involved in the present appeals is fully covered by the authoritative pronouncements of the Hon'ble Apex Court in the case of Krishna Kant (supra) and Jakir Hussain (supra) and in the case of Mohar Singh (supra) also in para 16 the Hon'ble Apex Court relied upon the judgment in the case of Krishna Kant (supra). Further the co-ordinate Bench of this court in Rajasthan State Road Transport Corporation & Ors. v. Bhanwar Lal & Ors., reported in RLW 2007 (1) Raj. 728 held that in such matters the civil court has no jurisdiction to entertain, try and decide the suits in the matters of industrial dispute and the only remedy for the same is to file reference under the provisions of the Industrial Disputes Act, 1947. Accordingly, the substantial question involved in these appeals is answered in the manner that the civil court has no jurisdiction to entertain, try and decide the suits filed by the appellants.

17. Resultantly, all the three appeals filed by appellant plaintiffs are dismissed and the impugned judgments dated 27.09.1993 passed by the learned first appellate court allowing the appeals of the respondent-defendants is affirmed. It is made clear that in case any wages or regular salary has been paid to the appellant-plaintiffs, the same shall not be recovered. It will be open for the appellant-plaintiffs to approach the Labour Court for their grievances in accordance with the provisions of law. There shall be no order as to costs.

Appeals dismissed.
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