REPORTABLE    

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7754 OF 2011  [ARISING OUT OF SLP (CIVIL) NO.126 OF 2009]

Bihar State Electricity Board & Anr. ….Appellants

Versus

Ram Deo Prasad Singh & Ors.         ….Respondents  

J U D G M E N T

Aftab Alam,J.

1.  Leave granted.

2.      The appellants, Bihar State Electricity Board and its Chairman were  

the  defendants  in  a  suit  filed  by  respondents  1  to  8,  the  plaintiffs.  The  

respondents were the workmen of the Board and at the material time, i.e., in

the  year  1974  they  were  working  as  security  guards  at  Patratu  Thermal  

Power Station, Hazaribagh. They were proceeded against on certain charges  

of misconduct. In the domestic enquiry the charges were established and on  

the basis of the findings of the domestic enquiry, they were dismissed from  

service on November 11, 1975. After 4 years of dismissal from service they  

filed a suit  (T.S. No. 95/1979) in the court of Munsiff V, Patna, seeking  

declarations that their dismissal was bad, unconstitutional and inoperative in  

law and they would be legally deemed to have continued in service.

3.      The trial court allowed the suit by judgment and decree dated August  

29, 1981. The appeal preferred by the appellants against the judgment and  

decree passed by the trial court (Title Appeal No. 147 of 1981/62/2004) was  

dismissed by the Additional District Judge, fast track court No. 2, Patna, by  

judgment dated January 18, 2006. The appellants, then, brought the matter  

before the High Court in second appeal (SA No. 97 of 2006) but this too was  

dismissed by judgment and order dated September 22, 2008. The appellants  

are now before this Court assailing the judgments and decree passed against  

them.

4.      In  view of  section  89 of  the  Bihar  Reorganisation  Act,  2000 the  

judgments  of  the  High  Court  and  the  first  appellate  court  appear  to  be  

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manifestly illegal and without jurisdiction. It may be noted that the district  

of Hazaribagh, where Patratu Thermal Power Station is situated, was earlier  

part of the State of Bihar but on bifurcation of the State with effect from  

November  15,  2000,  the  appointed  date  under  the  Reorganisation  Act  it  

forms  part  of  the  newly  created  State  Jharkhand.  Section  89  of  the  

Reorganisation Act dealing with transfer of pending proceedings provides as  

follows –

“89.“Transfer of pending proceedings – (1) Every  proceeding  pending  immediately  before  the  

appointed day before the court (other than the High  Court), tribunal, authority or officer in any area which  on that day falls within the State of Bihar shall, if it is  a  proceeding  relating  exclusively  to  the  territory,  which as from that day is the territory of Jharkhand  State,  stand  transferred  to  the  corresponding  court,  tribunal, authority or officer of that State.

(2) If any question arises as to whether any proceeding  should stand transferred under sub-section (1), it shall  be referred to the High Court at Patna and the decision  of that High Court shall be final.

(3) In this section, – a) “proceeding” includes any suit, case or appeal; and b) “corresponding court,  tribunal  authority or officer”  

in the State of Jharkhand means, – (i) the  court,  tribunal,  authority  or  officer  in  

which,  or before whom, the proceeding would  have  laid  if  it  had  been  instituted  after  the  appointed day; or

(ii) in case of doubt, such court, tribunal, authority, or  officer in that State, as may be determined after the  appointed day by the Government of that State or  

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the  Central  Government,  as  the  case  may be,  or  before the appointed day by the Government of the  existing  State  of  Bihar  to  be  the  corresponding  court, tribunal, authority or officer.”

                                                                                   (emphasis added)

From a  bare  reading  of  section  89  of  the  Act,  it  is  evident  that  on  the  

appointed date the appeal preferred against the judgment and decree passed  

by the Munsiff stood transferred to a corresponding court  in the State of  

Jharkhand.  The transfer of the appeal took place by operation of law and the  

Additional  District  Judge,  Patna  was  denuded  of  all  authority  and  

jurisdiction to proceed with the matter or to hear and decide the appeal. It  

follows equally that the Patna High Court had no jurisdiction to hear and  

decide the second appeal arising from the suit.

5.       From the judgment of the Patna High Court it appears that one of the  

three substantial questions of law arising in the second appeal related to the  

question of jurisdiction of the first appellate court to hear the appeal and the  

question was framed as follows: –

“3.  Whether the lower appellate  court  had the jurisdiction to  hear the title appeal after coming into force of the Bihar Re- organisation Act, 2000?  

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6.       The High Court answered the question in the negative, but in doing so  

it sought to side-step section 89 of the Re-organisation Act in curious ways.  

In paragraphs 9 and 10 of the judgment it held and observed as follows: –

“9. It is not in dispute that when the title suit was  filed the said Act had not come into force and even  when the title appeal was filed in the year 1981 the  said Act was not in force and the said Act came  into  force  in  the  year  2000  and  it  was  made  effective  from  15.11.2000  much  after  the  title  appeal  had  been  admitted  and  was  pending  for  hearing. Furthermore, there was an issue before the  trial  court  with  respect  to  the  jurisdiction  of  the  court to try the suit as objection was raised by the  defendants that the suit should have been filed at  Hazaribagh and the said issue was framed as issue  no.  (iv)  but  the  same  was  not  pressed  by  the  defendants  before  the  trial  court  and  hence  it  appears to have been conceded by them that the  court at Patna had jurisdiction to try the suit.

10. Section 89 of the Act specifically provides that  a  suit  or  an  appeal  pending  in  the  territory  of  reorganised State of Bihar would stand transferred  to the State of Jharkhand if the subject matter of  the suit falls within the State of Jharkhand. But it is  also  provided  that  if  any  question  arises  as  to  whether  it  shall  be referred to Patna High Court  and  decision  of  that  High  Court  shall  be  final.  However,  in  the  instant  case  it  is  quite  apparent  that  the  title  appeal  remained  pending  for  about  four years after coming into force of the aforesaid  Act but the defendants who were the appellants in  that  Court  never  raised  any  such  question  with  regard to the jurisdiction of the Court nor any such  matter was ever referred to the High Court at Patna  as per the said provisions of Law. Hence, in these  

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circumstances  the  learned  court  of  appeal  below  was quite justified in hearing the said title appeal  and deciding it on merits.”

7.       The High Court is wrong on all scores. The fact that the appeal against  

the  judgment  and  decree  passed  by  the  Munsiff  was  filed  before  the  

bifurcation of the State and on the appointed date (November 15, 2000) the  

appeal  was  already  pending  before  the  Additional  District  Judge  has  no  

bearing  on  the  issue.  Section  89  relates  to  proceedings  pending  on  the  

appointed date  and not  to  proceeding that  might  be  filed  after  that  date.  

Secondly, the objection in regard to the territorial jurisdiction, raised before  

the trial court was in an altogether different context. The objection before the  

trial  court  was  based  on  the  ground  that  the  plaintiffs-workmen  were  

working at  Patratu  Thermal  Power  Station  and their  dismissal  had  taken  

place there. The cause of action having arisen at Patratu, the suit ought to  

have been filed before a court  under whose territorial  jurisdiction Patratu  

Thermal Power Station is situate. The objection was not pressed before the  

trial court presumably because the head office of the Board being at Patna it  

was believed that the plaintiffs could file the suit at Patna as well. But the  

objection taken before the Munsiff, whether pressed or given up, could have  

no bearing on the transfer of the proceedings on the bifurcation of the State  

in terms of section 89 of the Reorganisation Act.

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8.     The third ground given by the High Court that the defendants who were  

the appellants before the Additional District Judge never raised the question  

with  regard  to  the  jurisdiction  of  the  court  nor  any  such  question  was  

referred to the Patna High Court for its decision, is equally misconceived  

and untenable. As noted above, the transfer of the proceedings in terms of  

section  89  of  the  Act  is  to  take  place  by  operation  of  law  and  is  not  

dependant upon any objection raised by any of the two sides.

9.       In light of the above, it must be held that the judgment passed by the  

first appellate court was illegal and without jurisdiction and equally without  

jurisdiction is the judgment and order passed by the Patna High Court.

10.     Further, quite strangely the High Court lost sight of the fact that it was  

affirming a decree that was no longer executable or enforceable in the State  

of Bihar. Section 62 of the Reorganisation Act contains provisions relating  

to Bihar State Electricity Board besides two other Corporations and in so far  

as relevant for the present provides as under: –  

“62.  Provisions  as  to  Bihar  State  Electricity  Board,  State  Warehousing  Corporation  and  State  Road  Transport  Corporation.- (1)The following bodies corporate constituted for the existing  

State of Bihar, namely:- (a) the  State  Electricity  Board  constituted  under  the  

Electricity Supply Act, 1948 (54 of 1948);

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(b) the State Warehousing Corporation established under the  Warehousing Corporations Act, 1962 (58 of 1962);

(c) the State Road Transport Corporation established under  the Road Transport Act, 1950 (64 of 1950),

shall, on and from the appointed day, continue to function in  those  areas  in  respect  of  which  they  were  functioning  immediately before that day, subject to the provisions of this  section and to such directions as may, from time to time, be  issued by the Central Government.

(2)Any directions issued by the Central Government under sub- section (1) in respect of the Board or the Corporation shall  include a direction that the Act under which the Board or the  Corporation was constituted shall, in its application to that  Board or Corporation, have effect subject to such exceptions  and modifications as the Central Government thinks fit.

(3)The Board or the Corporation referred to in sub-section  (1) shall cease to function as from, and shall be deemed  to be dissolved on such date as the Central Government  may,  by order,  appoint;  and upon such dissolution,  its  assets, rights and liabilities shall be apportioned between  the  successor  States  of  Bihar  and  Jharkhand  in  such  manner as may be agreed upon between them within one  year of the dissolution of the Board or the Corporation,  as the case may be, or if no agreement is reached, in such  manner  as  the  Central  Government  may;  by  order,  determine:

         Provided that any liabilities of the said Board relating to  the unpaid dues of the coal supplied to the Board by any public  sector coal company shall be provisionally apportioned between  the  State  Electricity  Boards  constituted  respectively  in  the  successor States of the existing State of Bihar or after the date  appointed  for  the  dissolution  of  the  Board  under  this  sub- section  in  such manner  as  may be agreed upon between the  Governments of the successor States within one month of such  dissolution or if no agreement is reached, in such manner as the  Central  Government  may,  by  order,  determine  subject  to  reconciliation and finalisation of the liabilities which shall be  completed  within  three  months  from  the  date  of  such  

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dissolution  by  the  mutual  agreement  between  the  successor  States or failing such agreement by the direction of the Central  Government:  

          Provided further that an interest at the rate of two per  cent  higher  than  the  Cash  Credit  interest  shall  be  paid  on  outstanding unpaid dues of the coal supplied to the Board by  the public sector coal company till the liquidation of such dues  by  the  concerned  State  Electricity  Board  constituted  in  the  successor  States  on  or  after  the  date  appointed  for  the  dissolution of the Board under this sub-section.    ………………………..”  

In terms of sub-section 3 of section 62, Jharkhand State Electricity Board  

came into existence on April 1, 2001. After that date it is no longer possible  

for the Bihar State Electricity Board to reinstate the respondents as security  

guards at Patratu Thermal Power Station where they were working at the  

time of dismissal from service.   

11.    Thus, looked at from any angle, the judgments passed by the first  

appellate  court  and  the  High Court  are  untenable  in  law and the  decree  

passed by the trial court, in the absence of Jharkhand State Electricity Board  

having been impleaded as a defendant,  is  rendered non-executable  in the  

State of Bihar.

12.      Mr. S.B. Sanyal, learned senior advocate, appearing for the plaintiffs-

respondents,  submitted that the case may be transferred to an appropriate  

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court in the State of Jharkhand from the stage of the first appeal against the  

judgment and decree passed by the Munsiff, Patna. And before that court the  

plaintiffs-respondents  might  take steps for  impleadment  of  the Jharkhand  

State Electricity Board as one of the defendants.

13.      We are completely disinclined to take that course for the following  

reasons.

14.      It may be recalled that the respondents were dismissed from service  

on November 11, 1975. They filed the suit four years later at Patna and tried  

to overcome the bar of limitation by pleading that they first came to know  

about their dismissal from service when they went to collect their wages in  

October, 1976. The Munsiff strangely accepted the plea.

15.    Secondly, before filing the suit at Patna, they had filed suits being title  

suit Nos. 65, 66, 67 and 72 of 1975 before the Munsiff, Hazaribagh. Those  

suits were dismissed for default. Before the Patna court an objection was  

raised on behalf of the defendants-appellants regarding the maintainability of  

the suit  in terms of Order 9 Rule 4 of the Code of Civil Procedure. The  

plaints of the suits filed at Hazaribagh were produced before the Patna court  

but the objection was overruled on the ground that the Board omitted to get  

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the plaintiffs’  signatures on the plaints and vakalatnamas filed before the  

Hazaribagh court formally proved.   

16.   Thirdly and most importantly the suit filed by the plaintiffs was itself  

not maintainable. It may be recalled that plaintiffs worked as security guards  

at the Thermal Power Station, they were, therefore, without doubt workmen  

within the meaning of the Industrial Disputes Act, 1947 and their service  

conditions were governed by the standing orders framed under the Industrial  

Establishment (Standing Orders) Act, 1946 and the relevant rules framed by  

the Board. It was, therefore, open to the respondents to raise an industrial  

dispute concerning their dismissal from service. A suit seeking reinstatement  

was therefore clearly barred and not maintainable. The issue stands settled  

by the decision of this Court in The Premier Automobiles Ltd. v. Kamlekar   

Shantaram Wadke of Bombay and Others, (1976) 1 SCC 496. In paragraphs  

23 and 24 of the judgment this Court held as follows: –  

“23.  To sum up,  the  principles  applicable  to  the  jurisdiction  of  the  Civil  Court  in  relation  to  an  industrial dispute may be stated thus: (i) 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.

(ii) 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  

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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.

(iii) 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.

(iv)   If the right which is sought to be enforced  is  a  right  created  under  the  Act  such  as  Chapter  V-A  then  the  remedy  for  its  enforcement  is  either  Section 33-C or  the  raising of an industrial dispute, as the case  may be.

24. We may, however, in relation to principle No.  2 stated above hasten to add that there will hardly  be  a  dispute  which  will  be  an  industrial  dispute  within the meaning of Section 2(k) of the Act and  yet  will  be one arising out of a right or  liability  under  the  general  or  common  law only  and  not  under the Act.  Such a contingency,  for example,  may  arise  in  regard  to  the  dismissal  of  an  unsponsored  workman  which  in  view  of  the  provision  of  law  contained  in  Section 2A of  the  Act  will  be  an  industrial  dispute  even  though  it  may  otherwise  be  an  individual  dispute.  Civil  Courts, therefore, will have hardly an occasion to  deal with the type of cases falling under principle  No. 2.  Cases of industrial  disputes by and large,  almost  invariably,  are  bound  to  be  covered  by  principle No. 3 stated above.”

17.     We,  thus,  come to  the  inescapable  conclusion  that  the  plaintiffs-

respondents’ suit was itself not maintainable and was liable to be dismissed.

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18.  For the reasons discussed above the appeal is allowed. The judgments  

and decree coming under challenge are set aside and the suit filed by the  

plaintiffs-respondents is dismissed.

19.      In the facts of the case there will be no order as to costs.  

……………………………J. (Aftab Alam)

……………………………J. (R.M. Lodha)

New Delhi; September 8, 2011.   

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