Milkhi Ram vs Himachal Pradesh State … on 8 October, 2021


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Supreme Court of India

Milkhi Ram vs Himachal Pradesh State … on 8 October, 2021

Author: Hrishikesh Roy

Bench: R. Subhash Reddy, Hrishikesh Roy

                                                                                    [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
Signature Not Verified

Digitally signed by
of
Rajni Mukhi
Date: 2021.10.08
17:15:29 IST
the High Court of Himachal Pradesh whereunder the
Reason:

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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

Page 7 of 11
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.

Page 8 of 11

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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