[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1346 OF 2010
MILKHI RAM …APPELLANT(S)
VERSUS
HIMACHAL PRADESH STATE ELECTRICITY BOARD …RESPONDENT(S)
J U D G M E N T
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).
2. The challenge here is to the judgment dated 6.11.2008
of the High Court of Himachal Pradesh whereunder the
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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 and decree in favour of the plaintiff are a
nullity. The Court also opined 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 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.
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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
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.
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. According to the appellate
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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 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 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 Judge (Junior Division). The
judgment debtor raised a preliminary objection on the
maintainability of the application with the projection that
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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 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 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.
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
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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.
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 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 execution. The Revision petition filed by
the judgment debtor was accordingly allowed by setting aside
the decree passed in favour of the plaintiff.
1 (2006) 1 SCC 59
2 (2006) 1 SCC 61
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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 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.
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 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,
3 (2008) 5 SCC 542
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offering the post of LDC and how the said offer did not
fructify only because of the adamancy of the appellant, who
failed to furnish a proper joining report. Insofar as the
relief of back wages ordered by the civil 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 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
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.
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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 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 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
4 (1995) 5 SCC 75
5 (2005) 7 SCC 447
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in those proceedings 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 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. 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
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to the court’s decree, should not be recovered. It is
ordered accordingly. The parties to bear their own cost.
………………………………………………………J.
[R. SUBHASH REDDY]
………………………………………………………J.
[HRISHIKESH ROY]
NEW DELHI
OCTOBER 08, 2021
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