- (1.) ALL the six Appeals have arisen from a common judgment rendered by the learned Principal District Judge, Vellore, dated 19.4.1990 in A.S.Nos.31, 32, 33, 34, 35, 36 of 1990 respectively reversing the judgment and decree of the learned District Munsif, Vellore dated 25.1.1990 in O.S.Nos.192, 194, 195, 196, 197 and 198 of 1984 respectively.
(2.) THE facts leading to the filing of the suits can be stated briefly as follows: THE respondents were employed as Pump Operators-cum- Electricians by the 2nd defendant namely, Tamil Nadu Water Supply Drainage Board from 18.12.1982 for the Vellore Water Supply Scheme and posted at the Booster Station, Vellore; that the respondents were deputed by the District Employment Officer, Vellore and were appointed thus by the 2nd defendant under the proceedings dated 11.12.1982; that they were continuously employed from the said date; that the 2nd defendant handed over the said water supply and Improvement Scheme along with the Booster Station to the 1st defendant namely Vellore Municipality; that the 1st defendant took over the scheme from 1.2.1984 for the continued maintenance; that the respondents continued to work under the Scheme at the Booster Station; that the 1st defendant with a view to deprive the rights of office of the respondents has called for fresh applications from the Employment Exchange, Vellore, for filling up the office by new hands; that on coming to know about the same, the representations dated 8.2.1984 were made to the Commissioner of the 1st defendant; that on receipt of the representations the 1st defendant sent a reply dated 10.2.1984 confirming its proposal to call for fresh hands and further directed the respondents to once again supply through the employment exchange afresh for the very post that the respondents were holding; that the conduct of the first defendant was mala fide, illegal and was in clear abuse of its official power as an Officer of a statutory body; that the Tamil Nadu Water Supply Drainage Board was an Industry as defined under the Industrial Disputes Act, 1947 and the respondents are the workmen and the terms and conditions of services of all workmen are all governed and regulated by the provisions of Industrial Employment (Standing Orders) Act, 1946 and Rules made thereunder; that the respondents cannot be terminated in violation of the said provisions and Act and Rules; that the respondents have served in the post for more than one year and hence the 1st defendant could not deny the right of office to the respondents by calling for fresh hands from the employment exchange since the rights of office of the respondents were a common law rights and civil action can be initiated and the Civil Court has got jurisdiction to try the suit. Under such circumstances the respondents had brought forth the suits for declaration that the respondents are entitled to continue in the office as Pump Operators Cum-Electricians under the Vellore Water Supply Scheme of the Vellore Municipality and consequential permanent injunction against the defendants not to interfere with the respondents office except according to the procedure established by law. The appellant herein who was the first defendant in all these suit is contested the same, alleging that the respondents/ plaintiffs were not employees under the Municipality; that there was no contract of Employment between the appellant and the respondents; that the Municipality was not concerned with the appointment of the respondents by the 2nd defendant Water Board; that the appellant never took the respondent for its service; that the Municipality had no authority to appoint any employee for any posts without specific orders and sanction of the Government. As per the Government instructions the Municipality was liable to select the candidates sponsored by Employment Exchange for the posts sanctioned by the Government; that there was a specific bar that the Municipality was not empowered to take the Water Board employees as the employees of the Municipality and thus the suit was not maintainable. The 2nd respondent who was the 2nd defendant in the said suits opposes the suits by stating that the respondents/ plaintiffs were temporarily appointed as Pump Operators under the Nominal Muster Roll on daily wages for Vellore Water Supply Improvement Scheme Works at Karugambathur; that the said scheme was handed over to the Municipality with the existing staff and it was for the Municipality either to absorb the existing staff or to recruit the new staff; that as per the procedure normally followed whether the scheme was completed and handed over to the local body, the workers who are working under the scheme, their services could be terminated without any prior notice of the local body was not willing to take them in the same scheme; that the then staff were being continued as required by the Municipality even though the scheme was handed over till new candidates were recruited from the Employment Exchange by the Municipal authorities; that if the allegations made in the plaint is true that the Civil Court has no jurisdiction to try the suit, the suit has got to be dismissed in limine; that the respondents were not entitled to the right of office on permanent basis since the appointment was purely on temporary basis under the Nominal Muster Roll so the plaintiffs had no locus standi to file the suit and were not entitled to get any order of injunction and they could not force the defendants to take them into regular service since their appointment were temporary and they could be terminated at any time without notice; that there is no provision to absorb the respondents to continue their work in the Board once the scheme was handed over to the Municipality for further maintenance and further when there was no vacancy for the posts; that the respondents/ plaintiffs were not entitled for declaration and injunction as asked for; that the responsibility of the Water Board was over as soon as the scheme was handed over to the Municipality and hence the suit has to be dismissed. On the rival pleadings, the trial Court framed the necessary issues and dismissed all the suits. Aggrieved by the decree and judgment of the trial Court, the plaintiffs preferred an appeal before the District Court. Reversing the judgment and Decree of the Trial Court, the learned District Judge decreed the suit. Aggrieved by the same, the first defendant Municipality has preferred all these appeals. At the time of admission, the following substantial questions of law were framed. " (1) Whether the lower appellate Court is right in granting the relief of declaration and injunction under Sec.34 of the Specific Relief Act when the first respondent has not right to hold the post in the event of the said post being filled up by the regular appointment" " (2) Whether the lower appellate Court's finding to the effect that it has jurisdiction to entertain the suit is sustainable in law" " (3) Whether the first respondent is correct in invoking the jurisdiction of the Civil Court when the matter is one of the dispute arising under the provisions of the Industrial Disputes Act" As seen above, the first respondent in all these appeals filed the suits seeking reliefs of declaration that they are entitled to continue in office as Pump Operators-cum- Electricians under the Vellore Water Supply Scheme of the Vellore Municipality with consequential permanent injunction. The said claim was vehemently contested by the District Municipality, the appellant herein stating that there was no contract of employment between the plaintiffs and the Municipality; that the Municipality never took the plaintiffs for service; that as per the instructions, the Municipality was liable to select the candidates sponsored by the Employment Exchange for the sanctioned posts; the Tamil Nadu Water Supply and Drainage Board, Vellore, took the stand that the first respondent was temporarily appointed as Pump Operators under the Nominal Muster Roll on daily wages for Vellore Water Supply Improvement Scheme and the said scheme was handed over to the appellant Municipality with the existing staff and it was looking out of the Municipality either to absorb the existing staff or to recruit the new staffs; that the Civil Court has no jurisdiction to try the suit since it is an Industrial Dispute that the appointment of the first respondent was purely temporary on daily wages and hence he could not seek the reliefs as asked for before the Civil Court.
(3.) ARGUING for the appellants, learned counsel would submit that the first appellate Court should have held that the Civil Court had no jurisdiction to try the suit since the dispute is between the employer and employee and it has to be necessarily to be resolved though the Special Court established under the statute; that the District Court was in error in holding that the Civil Court had jurisdiction to entertain the suit without considering the legal plea as to the jurisdiction of the Civil Court under the facts and circumstances of the case; that it is pertinent to note that the first respondent could not claim appointment to the permanent post which was to be filled up as per the Government instructions by the appellant and the employment of the first respondent by the 2nd respondent was on temporary basis; that even assuming without considering that the water scheme was once sponsored by appellant, the employment of the first respondent by the second respondent was temporary arrangement to commission the scheme and that the fact that the second respondent has given the scheme to the appellant itself would show that the right to appoint permanent persons after calling for names from the employment exchange was unfettered one; that the suit itself was not maintainable and the relief claimed by the first respondent could not be granted under the provisions of the specific relief act since he had no pre-existing legal rights to continue in the post; that the grant of relief by the first appellate Court was in effect granting relief of specific performance to enforce the personal contract of services against the appellant which was not permissible in law; that even as per the averments contained in the pleadings of the first respondent, the matter is purely within the jurisdiction of the forum constituted in the Industrial Disputes Act and the first appellate Court had not seen Exs.A-2, A-3 and in the proper perspective; that there was no employer employee relationship between the appellant and the first respondent and hence the findings to the effect of the first respondent cannot be treated as temporary employees which were wholly unsustainable; that the interpretation regarding the applicability of the provisions of the Industrial Employment (Standing Orders) Act, 1946 were not correct in law and even assuming if such provisions were made applicable to the first respondent, the appellant was also given power to remove the temporary servant to fill up the permanent post by way of regular appointment after terminating the services of the first respondent; that without looking at the proper perspective on Ex.A-1, the first appellate Court has given finding that the first respondent was entitled to file a suit for declaration in the event of his termination contrary to the provisions of Act and the Standing Orders; that the lower Court was not correct in holding that merely because the payment was made by the appellant to the first respondent though employment by the 2nd respondent, the employer- employee relationship existed between them and the first respondent was entitled between them and the first respondent was entitled to continue the same post even after the scheme was handed over to the appellant and for all these reasons the judgment of the first appellate Court reversing the judgment of the trial Court has got to be set aside and all the suits have got to be dismissed. Contrary to the contentions of the appellant side, learned counsel for the respondents would submit that the First Appellate Court was right in setting aside the judgment of the trial Court and decreeing the suit; that the suit filed by the first respondent in all the appeals seeking for declaratory relief and consequential permanent injunction was well entertainable by the Civil Court. It is pertinent to note that the first respondents/ plaintiffs were appointed through employment exchange in the year 1982 and that they were employed as Pump Operators-cum- Electricians by the 2nd respondent with effect from 18.12.1982 for the Vellore Water Supply Scheme and posted at the Booster Station at Vellore; that it is not disputed that the first respondent/ plaintiffs were continuously employed since their date of appointment i.e., 18.12.1982; that the 2nd respondent Water Supply and Drainage Board handed over the scheme along with the Booster Station to the appellant Municipality; that the Municipality after taking over the scheme on 1.2.1984 has been maintaining the same; that it is pertinent to note that the plaintiffs/ first respondent in all the appeals continued to work under the scheme at the appeals continued to work under the scheme at the Booster Station; that while they were continued in their employment as stated above, the first defendant Municipality in order to deprive their right of office has called for fresh applications from the employment office; that when it was objected to, the plaintiffs/ first respondent were informed that they should once again apply through Employment Exchange, Vellore, afresh for the same posts; that the denial of the right of office of the first respondent in all the appeals is in violation of the statutory provisions; that the first respondent has been working in the same post for more than one year. The appellant cannot deny the right of office to the plaintiffs by calling for fresh hands from Employment Exchange; that it is defined that the Tamil Nadu Water Supply and Drainage Board was an Industry under the Industrial Disputes Act that the first respondent in all the appeals were the workmen and the terms and conditions of service of all the workmen are governed and regulated by the provisions of Industrial Employment (Standing Orders) Act, 1946 and hence the first respondent cannot be terminated from employment in violation of the provisions and thus the first appellate Court was perfectly correct in granting the relief as asked for and hence the judgment of the first appellate Court has got to be sustained. Added further the learned counsel that the contention of the appellate side that the Civil Court has no jurisdiction to try the suit and hence the suit should have been dismissed as maintainable has got to be rejected in view of the pronouncement of the Apex Court. In support of the said contention learned counsel for the respondent relied on the decisions: (1) Sirsi Municipality v. Cecilia Kom Francis Tellis (1973)1 L.L.J. 226; (2) Central Co-operative Bank Limited, Kumbakonam v. M.Parthasarathy Central Co-operative Bank Limited, Kumbakonam v. M.Parthasarathy Central Co-operative Bank Limited, Kumbakonam v. M.Parthasarathy (1988)2 L.L.N. 107; (3) Ram Sahan Rai v. Sachiv Samanya Prabandhak (2001)3 S.C.C. 323 and Prathana Bank, Head Office, Morabad through its Chairman v. Vijay Kumar Goel A.I.R. 1989 S.C. 1977. ;