B.P. Ray, J.
1. The petitioners have filed this writ application under Articles 226 & 227 of the Constitution of India challenging the order dated 23.02.2006 passed in C.S. No. 341 of 2004 by the learned Civil Judge (Sr. Division) 1st Court, Cuttack by which the learned Civil Judge has rejected an application filed by the petitioners under Order 7 Rule 11 (d) of C.P.C. The said order has been enclosed as Annexure - 7 to the writ application.
2. The petitioners were the defendants in the aforesaid suit filed by opp.parties 1 to 3. The plaintiff-opp. parties No. 1 to 3 filed the aforesaid suit claiming to be the mother and sisters of deceased Kirti Chandra Lenka. Kirti Chandra Lenka was working as a Junior Assistant in the Office of the Revenue Divisional Commissioner (Central Division), Cuttack, who died on 1.3.2004 leaving behind the petitioners who are the wife, son and daughter respectively of the deceased-employee. After the death of the deceased-employee, the opp.parties 1 to 3 filed the present suit with the following prayers:
(a) Let a decree be passed declaring 40% share of the plaintiffs on the service benefits of the deceased Kirti Chandra Lenka.
(b) Let a decree be passed directing the defendant No. 4 to disburse/pay to the plaintiffs as per the share determined by this Hon'ble Court out of the service benefits of the deceased.
(c) Let a decree be passed restraining the defendant No. 1 to 3 from receiving 40% of the service benefits of the deceased Kirti Chandra Lenka permanently.
(d) Let any other decree be passed in favour of the plaintiffs would be deemed fit and proper.
(e) Let cost of the suit be decreed in favour of the plaintiffs.
3. The petitioners on being noticed appeared in the aforesaid suit and filed an application for rejection of the plaint purportedly under Order 7 Rule 11(d) of the Civil Procedure Code. The opp. parties filed an objection opposing such prayer of the defendant. The learned Civil Judge after hearing the parties by the impugned order under Annexure-7 has rejected the application under Order 7 Rule 11(d) of C.P.C. filed by the petitioners on the reasoning that the suit was merely a declaratory suit and therefore, the Civil Court has jurisdiction to decide the suit.
4. The short question which arises for consideration is that whether the Civil Court has jurisdiction to adjudicate the suit filed by the plaintiff-opp. parties 1 to 3 in view of the fact that the deceased-employee was a Government servant. There is no dispute to the fact that the deceased-Kirti Chandra Lenka was employed as a Junior Assistant in the Office of the Revenue Divisional Commissioner (Central Division), Cuttack. In view of this undisputed factual position, any dispute or complaint with regard to the conditions of service of the deceased-employee is to be adjudicated under the provisions of the Administrative Tribunal Act, 1985 (in short 'the Act'). This has also been so held by a Division Bench of this Court in the case of Pratap Chandra Rout and Ors. v. State of Orissa and Ors. Vol. : 62 (1986) CLT 244 : 1986 (II) OLR 242.
5. In view of the aforesaid conclusion that any service dispute relating to the deceased-employee, who died on 1.3.2004 is to be adjudicated by the Administrative Tribunals set up under the Act, 1985. Let us examine whether the jurisdiction of the Civil Court is ousted in respect of the matters which are conferred on the Tribunal by virtue of enactment of the Act, 1985. Section 28 of the Act provides exclusion of jurisdiction of courts except that of the Supreme Court concerning the service matters. Section 28 of the Act is quoted hereunder:
28. Exclusion of jurisdiction of Courts except the Supreme Court under Article 136 of the Constitution - On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or post, [no Court except--
(a) the Supreme Court; or
(b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947) or any other corresponding law for the time being in force, shall have], or be entitled to exercise any jurisdiction, powers or authority in relating to such recruitment or matter concerning such recruitment or such service matters.
6. Apart from Section 28 of the Act, Section 29 of the Act provides transfer of pending cases inasmuch as every suit or other proceeding pending before any Court or other authority immediately before the date of establishment of a Tribunal under the Act, 1985 shall stand transferred to the Tribunal after the establishment of the Tribunal. Undisputedly, Orissa Administrative Tribunal has been set up in the State of Orissa under the Act, 1985 since 1986. Since the deceased-employee died on 1.3.2004, the question of transferring the suit to the State Administrative Tribunal does not arise. But the provision under Section 29 has been taken note of by me for the reason that the Civil Court cannot try a suit upon creation/establishment of the Tribunal inasmuch as the Civil Court is required to transfer the suit to the Tribunal.
7. Keeping in view the provisions contained in Sections 28 & 29 of the Act, 1985, I am of the considered opinion that the suit filed by the plaintiffs is not maintainable and accordingly, the impugned order under Annexure-7 is quashed. Consequently, the plaint filed by the plaintiffs is rejected and the writ application is allowed with cost which is assessed at Rs. 1000/-.