- (1.) K. L Sharma, J. This writ petition has been filed under Article 226 of the Constitution of India against the judgment and order, dated May 21, 1993 passed by the State Public Services Tribunal, Jawahar Bhawan, Lucknow in Claim Petition No. 284/f/iv/1983 vide Annexure 4 to the petition, whereby the learned Tribunal has refused to entertain the claim petition and dismiss the same on the ground that it is not maintainable by the petitioner, who is a workmen.
(2.) THE grievance of the petitioner is that even though he is a workman within the definition of Section 2 (k) of the Industrial Disputes Act and Sec tion l (4) (e) of the U. P. Public Services (Tribunals) Act, he is also a public servant and can legally file a claim petition before the State Public Services Tribunal in respect of his reliefs relating to his service conditions which are not governed by the provisions of Industrial Disputes Act. THE learned counsel for the petitioner has contended that the learned Tribunal has failed to appreciate the distinction between the claim of a workman and the claim of a public servant and has merely been influenced by the definition on the word "workman" as defined under the Industrial Disputes Act, and the Public Services (Tribunals) Act. THE learnad Counsel has further pointed out that the learned Tribunal has not properly appreciated the decision of the Division Bench in the case of Surendrapal Singh v. State of U. P. rendered by the Division Bench of this Court and reported in 1988 (56) FLR (Allahabad High Court) 463, and the earlier Full Bench decision in the case of Ram Krishna Yadav v. THE U. P. State Road Transport Corporation through its Chairman, Lucknow, 1981 LLT (Services), Allahabad High Court, Lucknow Bench) 101, and the Supreme Court decision in the case or the Premier Auto mobiles Limited v. Kamlakar Shantaram Wadkt, AIR 1975 SC 2238 and M/s. Avon Services Production Agencies (P) Ltd. v. Industrial Tribunal, Haryana, 1979 SCC (L and S) 15. The landmark judgment of the Privy Council in the case of State v. Mask and Co. , AIR 1940 PC 105, on the question of the jurisdiction of a court declared what is contained in Section 9 of the Code of Civil Procedure. The Civil Court is the normal court having got jurisdiction to try all suits of civil nature. The only exception to the jurisdiction of the civil court is the provision expressed or implied which bass specifically the jurisdiction of the civil court in a particular matter. The mere conferment of special jurisdiction on a Tribunal in respect of the said matter does not in itself exclude the jurisdiction of civil courts ; even if there was no such specific exclusion, if it creator a liabi lity not existing before and gives special and particular remedy for the aggriev ed party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular Forum in which the said remedy could be had. Even in such cases the civil court's jurisdiction is not completely ousted. A suit in a civil court will always lie to question the order of a Tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said Tribunal abuses its power or does not act under the Act but in violation of its provisions. A Bench of seven Judges of the Hon'ble Supreme Court in the case of Kamala Mills Ltd. v. State of Bombay, AIR 1965 SC 1942, reiterated the following principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute : " (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 ii 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 suit or 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 the only remedy available to the suit or ii to get an adjudication under the Act. (4) If the right which is sought to be enforced is a right created under the Act inch as Chapter V-A then the remedy for its enforcement is either Section 33-C or the raising of an industrial dispute, as the case may be.
(3.) IN the case of Premier Automobiles (supra), the Hon'ble Supreme Court merely added that there will hardly be a dispute which will be an indus trial dispute within the meaning of Section 2 (k) of the INdustrial Disputes Act and yet will be one arising out of a right or liability under the general or com mon law only and not under the INdustrial Disputes Act. It wag held that cases of industrial disputes by and large almost invariably are bound to be covered by principle (3) stated above. U. P. Public Service (Tribunals) Act, 1976 (hereinafter referred to as the said Act) established the tribunal as a special Forum for the redress of the grievances arising to the public servants relating to their service conditions and expressly excluded the jurisdiction of the civil courts by expressed provisions contained in Section 6 of the said Act. As a conse quence the matters relating to the service conditions of the public servant as defined by the said Act hither-to cognizable by the Civil Court were brought within the purview of the Tribunal and the judgment of the Tribunal was made final, subject to the decision of the High Court it its writ jurisdiction. In brief, whatever was being adjudicated upon by the Civil Court relating to the grievances of the public servant, was trans ferred to the Public Services Tribunal. It is true that Section 1 (4) of the said Act excluded certain categories of public servants from the jurisdiction of the Tribunal. One of the categories excluded includes a workman as defined in Industrial Disputes Act, 1947 (Act XIV of 1947) or the U. P. Industrial Dis putes Act, IS47 (U. P. Act XXVIII of 1947 ). On the basis of this excluded category of workman, the learned Judicial Member of the Tribunal held that the claim petition filed by a workman was not maintainable before the Tribu nal. The fine distinction as laid down by the Hon'ble Supreme Court does not appear to have been appreciated. The petitioner was not only a workman but it also a public servant. He is not only governed by the service condition fixed by the regulations of the Board, but is also governed by the provisions of the Industrial Disputes Act. There are certain rights and obligations creat ed not only by the regulations of the Board, but also by the provisions of the Industrial Disputes Act. The grievance of such an employee who is workman as well as a public servant, can arise under the regulations of the Board and/or under the provision of the Industrial Dispute Act. if the grievances of the employee do not arise out of the rights and obligations created by the Indus trial Disputes Act, he is not bound to seek a redress of his grievance as a workman under the Industrial Disputes Act. If his grievances arise out of the rights and obligations created by the service regulation of the Board, he it entitled to seek redress of his grievances as a public servant by filing a claim petition before the Public Services Tribunal. However, such a distinction has escaped the notice of the Tribunal while dealing with the claim petition of the petitioner, who merely challenged the order of punishment, and claimed his due promotion, confirmation and payment of transfer T. A. Bills arising out of the service regulations of the Board. The petitioner did not mention any rights or obligations arising and did not claim any relief admissible under the Indus trial Disputes Act. The judgment of the Division Bench in the case of Surendra Pal Singh (supra) did not consider the question already decided upon by the Full Bench of the Court in the case of Ram Krishna Yadav (supra) wherein it was held by the Full Bench in para 20 of the judgment as follows : "even a Government servant can be a workman it the undertaking in which he is engaged constitutes an industry, as in the case of a railway servant. Thus, the view expressed by the Division Bench in J, p. Gupta (supra) that because the employees were Govern ment servants, therefore, they ware not workmen was with due respect, non sequitur. We have already noticed the relevant pro visions of the U. P. Public Services (Tribunals) Act, 1976. It is true that the employees cannot ask for any relief arising out of their status as workmen, namely, any relief admissible to them on the basis of the provisions of the Industrial Dis putes Act, 1947 or the U. P. Industrial Disputes Act, 1947 or of any other labour law, either in view of the provisions of the U. P. Public Services (Tribunals) Act noted earlier, from the Tribunal or as held in Union of India \, Kalicharan, (1978) 3 FLR 232, by a Division Bench of this Court, following Premier Automobile y. K. S. Wadka, AIR 1975 SC 2238 direct from this Court. But if they claim any relief arising out of their status and rights as Government servants simpliciter, they can maintain a claim under Section 4 (a) of that Act. If they contend that they are being dealt with otherwise than in conformity with Article 311 (1) or (2) of the Constitution, or with statutory service rules made under Article 309, such a relief can certainly be granted only by a Tribunal under the U. P. Public Services (Tribunals) Act or direct ly by this Court. In the instant cases they are not claiming any relief under any labour law conferring any rights on them as workmen. ";