V.K.

Chandrasakran & Anr vs Manglesh Kumar Sinha & Ors on 17 October, 2011

Patna High Court Patna High Court V.K.Chandrasakran & Anr vs Manglesh Kumar Sinha & Ors on 17 October, 2011 Author: S.K.Katriar Civil Revision No.2138 of 2007 ******* Against the order dated 30.07.2007, passed by the learned Sub-Judge-VI, Gaya in T.S. No.76/2001. ******** 1. V.K. Chandrasakran, General Manager Sales, Dr. Reddy Hyderabad-500016. 2. Regional Manager, Dr. Reddy Patna. ... Defemdants.... Petitioners Versus 1. Manglesh Kumar Sinha, S/O Lala Krishna Nand Sinha, Sahmir Takeya Gobarapar; P.S. Civil Lines, P.S. Chandchaura; District- Gaya. .....Plaintiff......Opposite Party No.1st Set. 2. Satish Reddy, S/o Dr. Anji Reddy; Managing Director of Dr. Reddy Ameerpet, Hyderabad- 500016. 3. Mr. P.K. Pathak, DSM, Dr. Reddy s Laboratories Limited, 7-1-27, s Laboratories Limited, 7-1-27 Ameerpet;

s Laboratories Limited, 1 st Floor, Suprabhat Building, Exhibition Road,

s Laboratories Limited, 7-1-27 Ameerpet; Hyderabad-500016.

....Defendants.....Opposite Party Nos.2 & 3. ********* For the Petitioners : Mr. Anshuman, Advocate For opposite party no.1: Mr. Arun Kumar Sinha, Advocate ******** PRESENT THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR ******** S K Katriar, J. The defendants are the petitioners, and opposite party nos.2 and 3 who are functionaries of the petitioner Company and have been impleaded as defendants in the suit. In other words, the petitioners and opposite party nos.2 and 3 represent a common cause. This application under section 115 of the Code of Civil Procedure has been filed by the defendants of Title Suit No.76 of 2001 (Mangalesh Kumar Sinha vs. Satish Reddy & others), and is directed against the 2 order 30.07.2007, whereby the learned Subordinate Judge VI, Gaya, has held that the preliminary objection raised by the defendants as to the maintainability of the suit shall be considered at the time of final disposal of the suit, and has indeed been incorporated in the nine issues framed by the learned trial court.

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V.K.Chandrasakran & Anr vs Manglesh Kumar Sinha & Ors on 17 October, 2011

2. A brief statement of facts essential for the disposal of this civil revision application may be indicated. Opposite party no.1 herein has instituted the suit for the following reliefs: "9. That the plaintiff came to know that defendant no.4 is interested in accommodating his own choices man obviously with a view to derive illegal gain and as such with this notice he started efforts to dislodge the plaintiff from service by abusing his power and position in the hierarchy of the management." "10. That when the plaintiff did not obey the verbal order of the defendant no.4 he started victimizing the plaintiff by withdrawing the H.Q. from Gaya City and shifted the Head quarter in Jamshedpur City which is a clear case of malafide intention to any how dislodge the plaintiff from his post." 3. The defendants filed written statement, inter-alia, stating therein that the plaintiff had initially been appointed by the defendants as a Medical Representative, was later on promoted to the post of Area Manager, and is covered by the provisions of the Sales Promotion Employees (Conditions of Service) Act 1976 (hereinafter referred to as the 1976 Act ). According to the defendants, in view of the provisions of Section 9 of the Code of Civil Procedure, the civil 3 court s jurisdiction is ousted if the subject-matter of the suit is covered by a specialized enactment. The defendants relied on the following reported judgments of the Supreme Court: (i) In Premier Automobiles Ltd. vs. K.S. Wadke, AIR 1975 SC 2238. (ii) In Rajasthan State Road Transport Corporation and Anr. vs. Krishna Kant, AIR 1995 SC 1715. (iii) In Chandrakant Tukaram Nikam & others vs. Municipal Corporation of Ahmedabad & Anr., 2002 AIR SCW 719. 3.1) The defendants further case is that the plaintiff had been transferred from Gaya in the State of Bihar, to Ranchi in the State of Jharkhand. The order had been issued by the defendant authorities at Hyderabad. Therefore, the civil court at Gaya has had no jurisdiction to deal with the suit. It was further submitted on behalf of the defendants that the plaintiff s services had been dispensed with on account of his failure to carry out the order of transfer. In their submission, failure to carry out a transfer order can validly result in an order of dismissal from service. He relies on Alexandre Bouzourou vs. The Ottoman Bank, AIR 1930 Privy Council 118. 4. We have perused the materials on record and considered the submissions of the learned counsel for the parties. According to the plaint, the services of the plaintiff has been dispensed with without 4 initiating a departmental proceeding. The plaintiff s further case is that his services has been arbitrarily dispensed with because he did not carry out the order of transfer. Paragraph 19 of the plaint is relevant in the present context and is reproduced hereinbelow: "19. That as stated above no body can terminate even a private employee without initiating a departmental proceeding after framing the charges." 5. On a consideration of the preliminary objection raised by the defendants the learned trial court passed the impugned order dated 30.07.2007, wherein it has been observed that the same shall be considered at the time of final disposal of the suit. All such objections have been incorporated in the issues framed on 22.01.2003, which shall be disposed of at the time of final disposal of the suit. 6. Section 9 of the Code of Civil Procedure is headed Courts to try all civil suits unless barred . Law is well settled that suit is the basic remedy for a citizen of this country for adjudication of civil rights and liabilities. It prima-facie appears that the plaintiff s case is perhaps covered by the 1976 Act, which creates a specialized forum for adjudication of the issues raised in the plaint. The question which arises for consideration in the suit is whether or not, in the facts and circumstances of the present case, the jurisdiction of the civil court at Gaya is completely ousted in view of the provisions of 1976 Act. The answer is to be
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V.K.Chandrasakran & Anr vs Manglesh Kumar Sinha & Ors on 17 October, 2011

found in the leading judgment of the Supreme 5 Court in Premier Automobiles Ltd. vs. K.S. Wadke (supra), wherein the Supreme Court has formulated four principles to determine the issues. The same is reproduced hereinbelow: "23. To sum up, the principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute may be stated thus: (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 is 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 suitor 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 suitor is to get an adjudication under the Act. (4) If the right which is sought to be enforced is a right created under the Act such as Chapter VA then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute, as the case may be." (Emphasis added) 7. It is evident on a perusal of the plaint that the same challenges the plaintiff s transfer from Gaya to a different place, and his failure to carry out the transfer order led to his dismissal from service. It is the plaintiff s further case that his services have been dispensed with without initiating a departmental proceeding. We have no manner of doubt that these are common law rights which do not exclusively emanate from a specialized enactment like the 1976 Act. We are, therefore, of the view that the present case is covered by 6 clause (2) of paragraph 23 of the judgment of the Supreme Court in Premier Automobiles Ltd. vs. K.S. Wadke (supra), reproduced hereinabove. 8. In other words, if the court prima-facie comes to the conclusion that the plaintiff s case is not with respect to adjudication of rights and liabilities exclusively created by the specialized enactment, and really for enforcement of common law rights, then the choice of forum lies with the suitor and he can approach the civil court or the specialized forum as per his own volition. We must be mindful of the position that institution and adjudication of a suit is a matter of right for the plaintiff, subject to the three conditions, namely, territorial and pecuniary jurisdiction, limitation, and payment of court fee, and a suit has got to be adjudicated and must result in decree or dismissal. On the other hand, a large number of industrial disputes are dependent on a reference by the State Government and is discretionary with it. Therefore, if such an opportunity for election were available with the suitor, he may validly prefer to institute a suit as a matter of right. We are, therefore, of the view that the learned trial court rightly observed that the civil court at this stage shall proceed with the suit, and the preliminary objections raised by the defendants have been incorporated in the issues to be determined at the time of final disposal of the suit. 7 9. It further appears to us that the defendants do not suffer any prejudice if the matter is tried by the civil court or by the forum created under the 1976 Act, particularly in a situation where the suit is pending before the civil court at Gaya since 2001. Both are judicial forums manned by persons trained in law, and neither party shall suffer prejudice on that count. 10. Law is well settled that the court before whom the matter is pending has the jurisdiction to decide the question of its jurisdiction. There may be occasions where it can be decided as a preliminary issue in terms of
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V.K.Chandrasakran & Anr vs Manglesh Kumar Sinha & Ors on 17 October, 2011

Order XIV, rule 2(2) of the Code of Civil Procedure, or else may need evidence. In the present case, the learned trial court on the basis of a prima-facie assessment of the cases of the parties has come to the conclusion that this issue shall also be decided along with other issues. Determination of the question of jurisdiction is more often than not a mixed question of law and facts. We agree with the approach of the learned trial court. The impugned order cannot be faulted. 11. In the result, we do not find any merit in this civil revision application and is accordingly dismissed. In view of the position that the suit is pending since 2001, the learned trial court would be well advised to dispose of the same most expeditiously. In the event of non-cooperation by any one of the parties, it will be open 8 to the learned trial court to proceed with the suit. It goes without saying that the observations made hereinabove are confined to the disposal of this civil revision application, and the learned trial court shall dispose of the suit unmindful of the observations. In the circumstances of the case, there shall be no order as to costs. (S.K. Katriar, J.) Patna High Court, Patna. Dated the 17th day of October 2011. S.K.Pathak/ (AFR)

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