Universal Ferro And Allied ... vs Member, Industrial Court, Civil ...
2002 Latest Caselaw 64 Bom

JUDGMENT

1. Heard the learned Advocates for the parties.

2. Rule. By consent, Rule is made returnable forthwith.

3. This is a writ petition filed by the petitioner, challenging an order dated 1.8.2001 passed by the Industrial Court, Nagpur, below Ex. 36 in Complaint (ULPN) No.1024 of 1999. The aforesaid complaint has been filed by the present respondent Nos. 2 & 3 in the Industrial Court, Nagpur, on 29.11.1999, inter alia, challenging the validity of an agreement dated 2.6.1999 entered into between the petitioner and respondent No.4 - representative union, for alleged violation of items No. 5 & 10 of Schedule IV and item No. 3 of Schedule III of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The challenge in this petition is on several grounds, which can be formulated hereinunder :

(a) That the Industrial Court has not properly appreciated the ruling of the Supreme Court in the case of Express Newspapers (P.) Ltd. Vs. The Workers and others, . In this regard, though reliance was placed by the petitioner on paragraph 12 of the said judgment, the Industrial Court has wrongly referred to portion of paragraph 19 of the said judgment which had no bearing on the issue raised by the petitioner before the Industrial Court, Nagpur. It is the contention that para 12 of the aforesaid apex Court judgment permits an Industrial Tribunal to examine as a preliminary issue, the question as to whether the dispute referred to it is an Industrial dispute or not.

 (b) That  there  is  no specific reference in the impugned order to the judgment of the apex Court in  the case of  Shramik Uttarsh Sabha Vs.  Raymond Woolen Mills Ltd.   &  Ors.,  reported  in  1995  (1)  CLR  607   and subsequent  judgment  in  the  case  of Warden & Company (India) Ltd.,  Bombay  Vs.    Akhil  Maharashtra  Kamgar Union,  Thane,  reported  in  2001  (2) LLJ 217 has been mis-interpreted. 
 

 (c) So also, the ratio of  the  judgment  in  the case  of  Bajirao Rajaram Patil Vs. Maharashtra State of Cooperative Bank Limited, reported in 1997  Mh.L.J.  150 and  the  judgment  in  the  case of Tata Hydro Electric Power Supply Co. Ltd. & Ors. Vs. Narendra L.  Mansukhani &  Ors.,  reported  in  1999 (1) CLR 741, have also been misread.  
 

 3. Before I advert to the question as to whether a  preliminary  issue  is  required to be framed in this case, there is one relevant fact which requires mention. In the complaint filed by Respondent Nos.  2 &  3,  they had  preferred  an  application  for  grant  of  interim reliefs.  The said interim reliefs were refused  by  the Industrial  Court and the matter was carried to the High Court by respondent Nos.  2 & 3 by filing Writ  Petition No.3522 of  2000.    The  said  writ petition came to be rejected on 2.4.2001.    However,  while  rejecting  the same,  this  Court  gave  a  direction to the Industrial Court to dispose of the matter within a  period  of  one year, on  its  own  merit.    The  period  given  to the Industrial Court to decide the entire matter on its  own merit, therefore, comes to an end on 1.4.2002. 
 

 4. On   12.7.2001,   the   petitioner    company preferred  an  application for framing certain issues as preliminary issues.  In the said application, the  draft issues as  such  were not framed.  Immediately after the filing of this application, on 20.7.2001, the petitioner submitted draft preliminary issues.  There are 5  issues which  have  been submitted as draft preliminary issues. It is not in dispute that these draft preliminary issues have not yet been settled by the Industrial  Court  till today.   It  appears  that  the  application, for trying issues  as  preliminary  issues,  was  agitated  by  the petitioner  and  after  considering  the  reply filed by Respondent Nos.2 &  3,  the  Industrial  Court,  Nagpur, passed the impugned order dated 1.8.2001. 
 

 5. The advocate for the petitioner has taken  me through  several  judgments of the Supreme Court, Bombay High Court, as well as other Courts.  The first  leg  of his argument  is  that  Respondent  Nos.   2 & 3 have no right whatsoever to file a complaint under Section 28 of the  Maharashtra  Recognition  of   Trade   Unions   and Prevention of Unfair Labour Practices Act, 1971, because such  a  complaint can only be filed by a representative union in view of Section 21(2) of  the  said  Act,  read with  Section 30 of the Bombay Industrial Relations Act, 1946.  Reliance has been placed by him on paragraphs 13, 14 and 15 of the judgment of the apex Court in the  case of Shramik  Uttarsh Sabha (supra).  He has also referred to the judgment of the Division Bench of this  Court  in the case  of Warden & Co.  (India) Ltd., Bombay (supra). It does prima facie appear to me that these cases relied upon by the petitioner indicate that  even  a  complaint under Items No.    5  & 10 of Schedule IV of M.R.T.U.  & P.U.L.P.   Act,  1971,  can  only  be  agitated   by   a representative union.  Having said this, I hasten to add that  I  am  not  deciding  this point because the issue before me is as to whether this point has to be agitated as preliminary point before the Industrial Court and  it would  not be proper on my part to conclude the point in the manner which would  bind  the  Industrial  Court  in giving a full and proper decision on the issue. 
 

 6. The real point required to be decided by this Court  is  as  to whether it is desirable to direct that certain issues submitted by the petitioner in draft form should be treated as preliminary issues and a  direction should  be given for decision of the same as preliminary issues.  Section 30 of the M.R.T.U.  &  P.U.L.P.    Act, 1971, deals with the powers of the Industrial and Labour Courts.   Sub-section  (3)  of  section 30 lays down the powers of such courts for  the  purpose  of  holding  an enquiry  and  lays  down  that the Industrial and Labour Courts shall have the same powers vested  in  Courts  in respect  of  various  matters  enumerated  in  the  said sub-section.  It has  been  noticed  that  there  is  no specific  power  for  framing  of  issues  laid  down in sub-section (3).  It, however, appears that such a power can be assumed in view of several judgments of the  apex Court.   In  para  12  of  the  judgment  in the case of Express Newspapers (P) Ltd.  (supra),  it  was  observed that   "...at   the  very  commencement  the  Industrial Tribunal will have to examine as a preliminary issue the question as to whether the dispute referred to it is  an industrial  dispute  or  not..."  In  the  case  of D.P. Maheshwari V.  Delhi  Administration,  reported  in  AIR 1984 SC 153, the Supreme Court observed as under : 
  "It  was just the other day that we were  bemoaning  the   unbecoming   devices adopted   by  certain  employers  to  avoid decision of industrial disputes on  merits. We  noticed  how  they  would raise various preliminary objections, invite decision  on those  objections  in  the  first instance, carry the matter to the  High  Court  under Article 226 of the Constitution and to this Court under Article 136 of the Constitution and  delay  a  decision of the real dispute for years, sometimes  for  over  a  decade. Industrial  peace,  one  presumes, hangs in the balance in the meanwhile.  We have  now before   us   a   case   where   a  dispute originating  in  1969  and   referred   for adjudication   by  the  Government  to  the Labour Court in 1970 is still at the  stage of  decision  on  a  preliminary objection. There  was  a  time  when  it  was  thought prudent   and   wise   policy   to   decide preliminary issues first.    But  the  time appears  to  have arrived for a reversal of that policy.  We think it  is  better  that tribunals,   particularly  those  entrusted with  the  task  of   adjudicating   labour disputes where delay may lead to misery and jeopardies  industrial peace, should decide all issues in  dispute  at  the  same  time without  trying some of them as preliminary issues.  Nor  should  High  Courts  in  the exercise  of  their jurisdiction under Art. 226 of the  Constitution  stop  proceedings before  a  Tribunal  so  that a preliminary issue may be decided by them.  Neither  the jurisdiction   of   the  High  Court  under Article 226 of  the  Constitution  nor  the jurisdiction of  this Court under Art.  136 may be allowed to be exploited by those who can well afford to wait to the detriment of those  who  can  ill  afford  to  wait   by dragging the latter from Court to Court for adjudication of peripheral issues, avoiding decision  on  issues  more  vital  to them. Article 226 and Art.  136 are not meant  to be  used to break the resistance of workmen in this fashion.  Tribunals and Courts  who are   requested   to   decide   preliminary questions  must  therefore  ask  themselves whether such threshold part-jurisdiction is really  necessary  and  whether it will not lead to other woeful consequences.    After all tribunals like Industrial Tribunals are constituted to decide expeditiously special kinds of disputes and their jurisdiction to so  decide  is  not  to  be  stifled by all manner  of   preliminary   objections   and journeyings up   and  down.    It  is  also worthwhile remembering that the  nature  of the   jurisdiction  under  Article  226  is supervisory and not  appellate  while  that under  Article 136 is primarily supervisory but the Court may  exercise  all  necessary appellate powers to do substantial justice. In   the   exercise  of  such  jurisdiction neither the High Court nor  this  Court  is required to be too astute to interfere with the  exercise  of  jurisdiction  by special tribunals at interlocutory  stages  and  on preliminary issues." 
 

 7. In the case of Rajiv Bhalchandra Gundewar Vs. Crompton Greaves Ltd., reported in 2000 (1) CLR 818,  it was observed by this Court as follows : 
  "So far as direction given  by  the Industrial  Court  to the Labour Court that the said Court should frame all  issues  is concerned,  the  said  direction  cannot be faulted and  is  proper.      The   further direction  given by the Industrial Court to first decide the issue of  workman  and  if the  finding  on  the  said issue is in the negative,  the  Labour  Court  should   not decide  the  remaining  issues,  cannot  be countenanced  and  needs  to  be  modified. Piecemeal  decision  on  the  issues always results in protracting the  litigation  and to  avoid  that  it  is always advantageous that all issues are decided together.    It is  true  that  the  question  whether  the complainant is workman or not  is  a  vital issue  but  at  the  same  time,  the other issues   regarding   the    legality    and correctness   of  the  termination  of  the complainant needs to be gone  into  by  the Labour  Court  also  because  even if it is held  by  the   Labour   Court   that   the complainant   is  not  workman,  the  other issues raised in the complaint are required to be decided  because  in  case  the  said finding   is   not   upheld  ultimately  by superior  court,  the  matter  may  not  be required  to  be  remanded  for decision on other  issues  if  the  other  issues   are decided by  the Labour Court.  The decision of   all   issues   simultaneously    shall definitely  curtail  unnecessary  delay  in final disposal of the matter.  The  finding recorded   by   the  Labour  Court  on  the question whether the complainant is workman or  not  is  not   final   and   obviously, therefore,  to  obviate  the  necessity  of remand at later stage by the superior court on the other issues in  case  the  superior court  does not agree with the Labour Court on its finding on the question whether  the complainant  is workman or not, it would be desirable  that  all  issues  are   decided simultaneously   including   the   question whether the complainant is workman or not." 
 

 8.       All  the  aforesaid  decisions proceed on the presumption that a Labour Court / Industrial Court has a power to frame issues.  In fact, it is observed that the framing of issues is  eminently  desirable  because  the framing  of issues clarifies and pinpoints the questions which are  required  to  be  addressed  and  necessarily results in  a more cogent and coherent judgment.  Having said this, the quoted paras of the aforesaid  judgments, can be said to lay down the following proposition : 
   

 (a)      It is  better  that  Tribunals,  particularly those  entrusted  with  a  task  of  adjudicating labour disputes where delay may lead to misery  and  jeopardizes industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. 
 

 (b) High  Court  in   the   exercise   of   their jurisdiction  under  Art. 226 of the Constitution should not  stop  proceedings  before  a  Tribunal  so  that  a preliminary issue  may  be  decided  by  them.  The High Court in  its  writ  jurisdiction  should  not  normally interfere  with  the exercise of jurisdiction of special tribunals at interlocutory  stages  and  on  preliminary issues.  
 

 9. The  advocate for the petitioner has referred to a judgment of the Division  Bench  of  the  Karnataka High  Court  which,  after referring to the case of D.P. Maheshwari (supra), came  to  the  conclusion  that  the Supreme  Court  judgment does not prohibit an Industrial Tribunal or Labour Court in a  given  case  to  try  the issue  touching  the jurisdiction as a preliminary issue but  it  has  to  consider  whether  in  the  facts  and circumstances of the case, it is necessary to decide the issue  touching  the jurisdiction as a preliminary issue or decide the same along with other issues.  The dilemma in such matters is obvious.  Even if a  legal  issue  is allowed  to be agitated as a preliminary issue, the same could result in a  separate  limb  of  litigation.    In labour  matters,  it  is  possible  that  such a created separate limb of litigation may cause prejudice  to  the workman  as  in  such  cases  the  workman  may lack the resources to carry out  extended  litigation.    On  the other hand, if all the issues are required to be decided together,  the  parties  are  required  to  spend  their energies by going  through  the  stage  of  leading  all evidence.   To my mind, at least in the present case, it would be  desirable  to  follow  the  second  course  of action.   It  would  be  preferable  to  put the parties through the stage  of  evidence  so  that  the  complete judgment  on  all  issues emerges thereafter rather than allowing the matter to be decided piecemeal and  running a risk  of  multifarious litigation.  This aspect of the matter has been highlighted by this Court in the case of Rajiv Bhalchandra Gundewar (supra). 
 

 10. In such circumstances, though I find that the Industrial  Court  has  passed  the  impugned   judgment without  proper  application of mind, for the additional reasons I have given hereinabove, I am not  inclined  to exercise  the  discretionary powers under Article 227 of the Constitution of India. 
 

11. I find that the Complaint was filed on 29.11.1999. The written statement was filed as far back as on 10.1.2000. The matter was expedited on 2.4.2001 and yet the Industrial Court has not even framed the issues in the matter. In such circumstances, in order to do full justice in this case which has been made time bound, it would be proper to give a direction that the issues be framed within two weeks from the date of receipt of the writ of this Court by the Industrial Court, Nagpur, and that the trial of this case be taken up immediately thereafter and concluded with urgency and haste so that there is no violation of the time limit imposed by this Court in its order dated 2.4.2001.

12. In the result, in view of what is stated hereinabove and subject to the directions given above, this writ petition stands rejected. Rule is discharged. There shall be no order as to costs.