MILKHI RAM versus HIMACHAL PRADESH STATE ELECTRICITY BOARD on 8 October 2021

1. Heard Mr. Ajit Singh Pundir, learned counsel appearing for theappellant (plaintiff). Also heard Mr. Naresh K. Sharma, learned counselappearing for the respondent (defendant).

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2. The challenge here is to the judgment dated 6.11.2008 of theHigh Court of Himachal Pradesh whereunder the defendant’s CivilRevision No. 16/2006 was allowed with the observation that the civilcourt lacked jurisdiction to entertain the civil suit based on the IndustrialDisputes Act, 1947 (for short “the ID ACT”) and therefore, the judgment H

and decree in favour of the plaintiff are a nullity. The Court also opinedthat a plea on absence of jurisdiction can be raised even at the stage ofexecution of proceedings.

3. The appellant was a daily wage employee under the HimachalPradesh State Electricity Board (hereinafter referred to as the “Board”).The service of the temporary employee was dispensed with by orderdated 1.1.1985 issued by the Executive Engineer. This was challengedin the Civil Suit No. 100/1985. The plaintiff claimed to have rendereduninterrupted service for 2778 days and asserted the right to be regularizedafter completion of 240 days of continuous service. The defendant per-contra contended that the plaintiff never worked for a continuous periodof 240 days and as such he is disentitled to claim regularization.

4. Whether the civil court has jurisdiction and whether the Plaintiffhad completed 240 days of uninterrupted service were the main issuesframed by the civil court. Both the issues ware answered in favour ofthe plaintiff. The learned Judge referred to the provisions of Section25B and 25F of the ID Act and noted that the plaintiff had renderedservice for well above 240 days in one year and therefore his servicecould not have been terminated without complying with the statutoryrequirement. Accordingly, the suit was decreed ordering reinstatementof the plaintiff with back wages. The defendant was directed to alsoconsider 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 CivilAppeal No. 123/1988. The jurisdiction of civil court was again questionedbut the appellate court observed that the question of jurisdiction is amixed question of law and facts and since the litigation is continuing forlong, it would not be proper to relegate the plaintiff to the labour court.According to the appellate court the workman was entitled to choosethe remedy either before the civil court or before the Industrial Court.As the service of a daily wager was terminated, the same was treatedto be a retrenchment without compliance with Section 25F of the IDAct. The decree favouring the plaintiff was accordingly upheld byrejecting the jurisdictional objection raised by the Board.

6. The judgment debtor’s further challenge to the decree werenot entertained and then the Board made the offer to appoint theterminated daily wager to the post of LDC in the regular pay scale, witheffect from 1.9.2001 (Annexure P4). Responding to the appointment ABC

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Aoffer, the appellant gave a joining report on 1.9.2001 (Annexure P5), butsince the same was hedged with various conditions, the joining reportwas not acted upon by the management.

7. Following the above, the decree holder applied for execution ofthe decree (12.10.1988) in the Civil Suit No. 100 of 1985 before the CivilBJudge (Junior Division). The judgment debtor raised a preliminary objectionon the maintainability of the application with the projection that all backwages were paid to the decree holder and he was also offered the postof LDC on 22.8.2001 and since the decree holder gave a conditionaljoining 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. TheCexecuting court negated the Board’s objection and the application of thedecree holder under Order XXI Rule 32 of the Code of Civil Procedure,1908 (for short “the CPC”) was allowed by directing the Board to giveeffect to the decree.

8. The order of executing court was challenged by the Board inDCivil Revision No. 16/2006. The Board contended before the High Courtthat the civil court had no jurisdiction to adjudicate a claim arising out ofthe ID Act and relief for the aggrieved employee could have been granted,only by the industrial court. It was further contended that plea of absenceof jurisdiction can be raised at any stage and the present decree is alegal nullity.E

9. On the other hand, the decree holder pointed out that concurrentfindings are recorded in favour of the plaintiff. Moreover, the Court hadanswered the jurisdiction issue in favour of the plaintiff. As such themaintainability of the challenge in Revision before the High Court by thejudgment debtor, was questioned by the terminated employee.F10. To address the jurisdictional question posed by the employer, F10. To address the jurisdictional question posed by the employer,the learned Judge referred to the judgments in Rajasthan SRTC & Ors.vs. Khadarmal[1], Rajasthan SRTC & Anr. vs. Ugma Ram Choudhry[2]and opined that the civil court did not have jurisdiction to entertain aclaim based on the ID Act and if any decree is passed by the courtGwithout jurisdiction, the same shall have no force of law. Following theratio in these two judgments, the High Court held that the civil courtlacked inherent jurisdiction to entertain the suit based on the ID Act andthe judgment and decree so passed, are nullity. It was further observedthat the plea of decree being a nullity can also be raised at the stage of 1 (2006) 1 SCC 59H2 (2006) 1 SCC 61

execution. The Revision petition filed by the judgment debtor wasaccordingly allowed by setting aside the decree passed in favour of theplaintiff.

11. Challenging the intervention of the High Court against thedecree holder, Mr. Ajit Singh Pundir, the learned counsel submits thatthe appellant has rendered service as a daily wager since 11.12.1976and his service could not have been terminated without following thedue process. According to the appellant’s counsel even when relief isclaimed based on the provisions of the ID Act, the jurisdiction of the civilcourt is not entirely barred. In support of his contention, Mr. Pundirrelies upon Rajasthan State Road Transport Corporation and Ors.vs. Mohar Singh[3].

12. On the other hand, Mr. Naresh K. Sharma, the learned counselfor the respondent Board, in support of the impugned judgment, reiteratesthe contention made before the High Court and submits that jurisdictionof 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, thedecree is nothing but a nullity and no relief on the basis of such voiddecree can be claimed by the plaintiff. In order to demonstrate thebonafide of the employer, Mr. Sharma refers to the letter dated 22.8.2001,offering the post of LDC and how the said offer did not fructify onlybecause of the adamancy oftheappellant, who failed to furnish a properjoining report. Insofar as the relief of back wages ordered by the civilcourt, the counsel submits that the Board has already remitted the arrearsalaries to the appellant.

13. The above contentions of the parties indicate that the onlyissue to be considered here is whether the suit before the civil court atthe instance of the terminated employee, was maintainable. The civilcourts may have the limited jurisdiction in service matters, but jurisdictionmay not be available to Court to adjudicate on orders passed by disciplinaryauthority. The authorities specified under the ID Act including theappropriate government and the industrial courts perform variousfunctions and the ID Act provides for a wider definition of “terminationof service”, the condition precedent of termination of service. Theconsequence of infringing those, are also provided in the ID Act. Whena litigant opts for common law remedy, he may choose either the civilcourt or the industrial forum.

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A14. In the present matter, the appellant has clearly founded hisclaim in the suit, on the provisions of the ID Act and the employertherefore is entitled to raise a jurisdictional objection to the proceedingsbefore the civil court. The courts below including the executing courtnegated the jurisdictional objection. The High Court in Revision, howeverhas overturned the lower court’s order and declared that the decree inBfavour of the plaintiff is hit by the principle of coram non judice andtherefore, the same is a nullity.

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15. The cited cases i.e. Khadarmal (supra) and Ugma RamChoudhry (supra) pertain to employees under the Rajasthan State RoadTransport Corporation. The three judges Bench of this Court whileCadverting to the challenge to termination of service opined that the civilcourt has no jurisdiction to entertain such cases. For such conclusion,the court referred to two earlier decisions in Rajasthan SRTC vs. KrishnaKant[4 ]and Rajasthan SRTC vs. Zakir Hussain[5] and held that whencivil court has no jurisdiction, the decree passed in those proceedingsDcan have no force of law. On the back wages already disbursed to theterminated employee, in Ugma Ram Choudhry (supra), the court onequitable principles observed that the disbursed amount should not berecovered from the employee.

16. As can be seen from the material on record, the challenge tothe termination was founded on the provisions of the ID Act. AlthoughEjurisdictional objection was raised and a specific issue was framed atthe instance of the employer, the issue was answered against thedefendant. This Court is unable to accept the view propounded by thecourts below and is of the considered opinion that the civil court lacksjurisdiction to entertain a suit structured on the provisions of the ID Act.FThe decree favouring the plaintiff is a legal nullity and the finding of theHigh Court to this extent is upheld.

17. Consequently, the appeal is found devoid of merit and thesame is dismissed. However, considering the hardship to the terminatedemployee, the arrear sum paid to him pursuant to the court’s decree,should not be recovered. It is ordered accordingly. The parties to bearGtheir own cost.Divya PandeyAppeal dismissed.

Appeal dismissed.

4 (1995) 5 SCC 75H5 (2005) 7 SCC 447