JAIN, J. - (1.) HEARD learned counsel for the plaintiff- appellant.
(2.) THIS second appeal, on behalf of the plaintiff under Section 100 of the Code of Civil Procedure, is directed against the judgment and decree dated 19th of August, 1999, passed by Additional District Judge, No. 4, Jaipur City, Jaipur, in Regular Civil Appeal No. 100/1992, whereby he dismissed the appeal of the plaintiff and affirmed the judgment and decree dated 27th of July, 1992 passed by the Additional Munsif and Judicial Magistrate No. 3, Jaipur City, Jaipur, in Civil Suit No. 554/1987 (329/1987), whereby the learned lower court dismissed the suit of the plaintiff for declaration. The plaintiff filed a suit for declaration to declare the order dated 21st of August, 1985 as illegal and void, whereby the service of the plaintiff was terminated from the post of Conductor. It was pleaded that the plaintiff was selected by the Selection Committee and was appointed on the post of Conductor on probation vide order dated 27th of March, 1985. The plaintiff pleaded that the impugned order dated 21. 8. 1985 is contrary to Section 35 of the Standing Orders of the defendant Corporation. It was also pleaded that he was removed on the basis of wrong report dated 18. 8. 1985, wherein it was reported that when the bus, in which the plaintiff was deployed as Conductor, was checked on 18. 8. 1985, 21 passengers were found travelling without ticket. The suit was contested by the defendants by filing written statement. The learned lower court, on the basis of pleadings of the parties, framed five issues. The issue No. 1 was whether the order dated 21. 8. 1985 terminating the service of the plaintiff is illegal. The issue No. 3 was whether the civil court has jurisdiction to hear the present suit. Both the parties led oral and documentary evidence in support of their case. The learned lower court vide its judgment dated 27. 7. 1992 decided issue No. 3 relating to jurisdiction of the civil court in favour of the plaintiff and against the defendants and held that the civil court has jurisdiction to try the suit. But, so far as issue No. 1 about validity of the impugned order dated 21. 8. 1985 is concerned, it was held that the order dated 21. 8. 1985 was rightly passed and consequently the issue No. 1 was decided against the plaintiff and in favour of the defendants. In view of the finding of the lower court in respect of issue No. 1 against the plaintiff, the suit of the plaintiff was dismissed. Being aggrieved with the same, an appeal was preferred but the same was dismissed by the first appellate court vide impugned judgment dated 19. 8. 1999. The first appellate court affirmed the finding of the lower court in respect of all the issues including issues no. 1 and 3, as referred above. Hence, this second appeal has been preferred on behalf of the plaintiff. The learned counsel for the appellants, Shri Bhanwar Bagri contended that the civil court had jurisdiction to entertain, try and hear the present suit even if it was an industrial dispute and in support of his contention he referred the decisions in the cases of Mohan Lal Mali vs. R. S. R. T. C. and Another, 1991 (1) RLR 229, Sukhi Ram vs. State of Haryana (Pb and Hry), 1982 (1) SLR 663 (Full Bench), and R. S. R. T. C. and Another vs. Ugma Ram Choudhary, 2005 SCC (L&s) 68. No other submission was made by Shri Bhanwar Bagri, Counsel for the plaintiff-appellant, in the present case. Although, in the present case the issue No. 3 relating to jurisdiction of civil court was not required to be argued on behalf of the appellant as both the courts below had decided this issue in favour of the plaintiff and the suit of the plaintiff was dismissed in view of the finding of the lower court in respect of issue No. 1. However, the learned counsel for the plaintiff-appellant argued about jurisdiction of the civil court in the present matter, therefore the same is being considered in the light of his submissions. It is relevant to mention that there is no dispute that R. S. R. T. C. is an industry and the plaintiff holding the post of Conductor is a workman in the present case and this is a matter relating to dismissal/retrenchment of the plaintiff, therefore the present dispute is an industrial dispute, within the meaning of Section 2 (k) of the Industrial Disputes Act, 1947.
(3.) IN Mohan Lal Mali's case (supra), a Single Bench of this Court considered the Division Bench decision in the case of RSRTC vs. Kaluram and Others (1988 (1) RLR 697) and another decision of the Hon'ble Apex Court in the case of Premier Automobiles vs. K. S. Wadke (AIR 1975 SC 2238), and held that the civil court had jurisdiction to try the said suit. Para 9 and 11 of the judgment in Mohan Lal Mali's case are reproduced as under: " 9. As far as this Court is concerned, this matter was referred to Division Bench in the case of RSRTC vs. Kaluram and Others, wherein the division bench of this Court relying on Premier Automobiles case (supra) and other cases, held that the jurisdiction of the civil court is not barred. 11. Premier Automobiles' case (supra) had been decided by a bench consisting of three Judges and this authority has been followed by another bench consisting of three Judges in Rohitash INdustries Ltd. 's case. IN Prathma Bank's case (supra), a bench consisting of two Judges has taken the same view, so also in Muniruddin's case (supra), whereas Hon'ble the Supreme Court in Jitendra Nath's case (supra) has not referred to any of the above cases earlier decided by it, and have placed reliance on an earlier decision in Bombay Union of Journalists vs. State of Bombay. IN the case of Muniruddin (supra) their lordships of the Supreme Court upheld the decision of the High Court in a second appeal, setting aside the order of the dismissal on account of violation of the principles of natural justice, meaning thereby that the civil court had jurisdiction to try such suits. IN this view of the matter, I am not inclined to agree with the view of the learned counsel for the respondents that I am not bound by the judgment of the division bench of this Court in Kaluram's case (supra) and as such, I reaffirm the finding of the trial court with regard to issue No. 2 and hold that the civil court had jurisdiction to try such suit. " In Sukhi Ram's case (supra) the Full Bench of the Punjab and Haryana High Court considered the provisions of Section 9 of the C. P. C. as well as Section 10 of the Industrial Disputes Act, 1947. The Full Bench also considered the principles on the question of jurisdiction laid down by the Hon'ble Apex Court in Premier Automobiles' case (supra), and in Para 14 of the judgment held as under: " 14. In the light of the aforesaid discussion, we would render the answer to the question as re-framed (in paragraph 2 above) in the affirmative. It is held that the Civil Court has jurisdiction to entertain a suit by a workman in connection with an industrial dispute arising out of the right or liability under the general or the common law (and not under the Act), if no steps had been earlier taken by him to resort to the remedy under the Industrial Disputes Act. " In Rajasthan State Road Transport Corporation vs. Zakir Hussain, [2005 (7) SCC 447], the Hon'ble Supreme Court considered the similar question whether civil court has jurisdiction to entertain the suit. This was a case relating to interpretation of standing order of the Rajasthan State Road Transport Corporation Workshop Employees. The Hon'ble Apex Court considered its earlier number of judgments including the judgment given in the case of Premier Automobiles' case (supra) and held that the suit before the civil court is not maintainable and the only remedy available to the workman is by way of reference under the provisions of the Industrial Disputes Act, 1947. The relevant Paragraphs No. 31 and 32 of the aforesaid judgment of the Hon'ble Apex Court in R. S. R. T. C. vs. Zakir Hussain's case (supra) are reproduced here as under: " 31. For the foregoing reasons, we hold that the respondent ought to have approached the remedies provided under the Industrial Disputes Act. He has miserably failed to do so but approached the civil court, which on the facts and circumstances of the case has no jurisdiction to entertain and try the suit. 32. The respondent has not acted bona fide in instituting the suit. It is seen from the order of the High Court that the respondent had been reinstated in service in the year 1990 and the back-wages had also been paid to him. Though in law, the respondent is not entitled to any back-wages, having regard to the facts and circumstances of this case, we are not inclined to order refund of the back-wages already paid to the respondent. But we make it very clear that the respondent shall not be allowed to continue in service any further. He shall not be entitled to any further emoluments or service benefits except the amount, which has already been paid to him. The respondent shall be discharged forthwith. No costs, The appeal stands allowed. " ;