RAMANLAL ZINABHAI JOSHI Vs. NAVSARI NAGARPALIKA
LAWS(GJH)-1980-7-16
HIGH COURT OF GUJARAT
Decided on July 02,1980

RAMANLAL ZINABHAI JOSHI Appellant
VERSUS
NAVSARI NAGARPALIKA Respondents




JUDGEMENT

A.N.SURTI - (1.)Two question arise in this petition by an employee of a Nagarpalika who was dismissed from service pursuant to an order which was held to be null and void by a competent Court namely :
(1) Whether the right to invoke the jurisdiction of the Labour Court by way of a Recovery Application under sec. 33C (2) of the Industrial Disputes Act 1947 is lost in case the employee concerned has failed to claim the relief for wages in the suit in which the impugned order of dismissal was held to be void ?

(2) Whether a Nagarpalika which is a State within the meaning of Art. 12 of the Constitution of India should raise such an immoral and unethical plea of a technical nature in disregard of the demands of justice ?

(2.)So far as the first question is concerned the Labour Court at Surat has rejected the recovery application made by the petitioner under sec. 33 (2) of the Industrial Disputes Act 1947 by the impugned order at Annexure A dated 4-3-78 mainly on the ground that the petitioner having failed to claim the relief for wages subsequent to the date of the institution of the suit in the suit instituted by him challenging the legality and validity of the order of dismissal the claim became barred under Order 2 Rule 2 of the Code of Civil Procedure and that the recovery application deserved to be rejected on that score. The facts of course are not in dispute. The petitioner instituted Civil Suit No. 251/68 challenging the legality and validity of the impugned order of dismissal dated 10/06/1968 The Suit was instituted on 18/12/1968 The petitioner did not claim a decree for salary prior to the institution of the suit or for the period subsequent to the institution of the suit by way of a consequential relief. His suit was restricted to a prayer for a declaration that the impugned order was illegal unconstitutional null and void. On 31/07/1972 a decree in his favour granting the declaration claimed by him was passed. This decision was subsequently confirmed by the appellate Court and became final as between the parties. In the backdrop of these facts it was contended that the recovery application made by the petitioner was barred which contention as mentioned earlier found favour with the Labour Court.
(3.)Now the embargo created by Order 2 Rule 2 of the Civil Procedure Code would be attracted if a subsequent suit was instituted for claiming a relief which was not claimed in the earlier suit. Order 2 Rule 2 debars a plaintiff from instituting a fresh civil suit for claiming the reliefs which he could have claimed and yet failed to claim in the earlier civil suit. The provision of Order 2 Rule 2 and the technical bar created by it will not apply to a subsequent proceeding instituted under sec. 33C (2) of Industrial Disputes Act. Why ? Because (1) Order 2 Rule 2 does not apply proprio vigore to a proceeding under the Industrial Disputes Act and (2) Because what is subsequently instituted is not a civil suit but proceeding under sec. 33C (2) of Industrial Dispute Act. The bar is created in order to foreclose a recourse to the same forum (civil suit in a Civil Court). Not in order to bar all remedy under all statutes. Under the circumstances it cannot be said that the right to invoke the jurisdiction of the Labour Court under sec. 33C (2) is lost merely because the petitioner has lost a right to institute a fresh civil suit claiming the reliefs which he has claimed in the recovery application giving rise to the present petition. It may be realised that the extinguishment of a right is one thing the extinguishment of a particular remedy is another. The remedy by way of a civil suit was lost because the relief for wages was not claimed in the earlier suit by reason of the embargo created by Order 2 Rule 2 of Code of Civil Procedure. What was lost was merely the remedy by way of a suit. Neither the right was extinguished not the alternative remedy of making recourse to sec. 33C (2) of the Industrial Disputes Act was extinguished. We are buttressed in the view that we are taking by a decision of the High Court of Mysore which has also taken the same view (see Town Municipal Council v. Mirzabhai (1968) 1 L. L. J. 785).


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