Manganese Ore (I) Ltd. Thru. Its ... vs Moh. Yunusuddin Sheikh & 2 Ors
2017 Latest Caselaw 3953 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 LETTERS PATENT APPEAL NO.50 OF 2008
            IN
 WRIT PETITION NO.3396 OF 2007


 Manganese Ore (I) Ltd., Nagpur,
 A Government Company incorporated
 under the Companies Act, 1956, 
 having its Registered Office at Mount
 Road Extension, P.B. No.34, Nagpur,
 through General Manager (Per).                      ....       APPELLANT


                     VERSUS


 1) Mohd. Yunusuddin Sheikh,
     Aged about 45 years, 
     R/o 5, Patel Nagar, Borgaon
     G.W.T. Road, Nagpur.

 2) Union of India,
     Ministry of Labour, Shramshakti 
     Bhavn, Rafi Marg, New Delhi.

 3) Presiding Officer,
     Central Government Industrial 
     Tribunal cum Labour Court, 
     1st Floor, New Secretariat Building,
     Civil Lines, Nagpur.                            ....       RESPONDENTS


 ______________________________________________________________

           Shri Masood Shareef, Advocate for the appellant, 
        Mrs. Mugdha Chandurkar, Advocate for respondent No.2.
  ______________________________________________________________



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                               CORAM :   B.P. DHARMADHIKARI AND
                                         ROHIT B. DEO, JJ.

DATED : 04-07-2017

ORAL JUDGMENT : (PER : B.P. DHARMADHIKARI, J.)

1. The appellant/employer assails judgment dated

25-01-2008 delivered by learned Single Judge of this Court in Writ

Petition No. 3396/2001 filed by respondent No.1 workman. The

workman approached this Court for issuing appropriate directions to

reference Court namely Central Government Industrial Tribunal.

Central Government Industrial Tribunal was considering preliminary

objection raised by appellant/employer that workman who had

invoked its jurisdiction was not covered under Section 2(s) of the

Industrial Disputes Act, 1947. When parties were adducing evidence

on issue of workman, during cross-examination of third witness of

management, respondent No.1, filed application and objected to

hearing on preliminary point. He submitted that this exercise was no

longer open because of findings recorded by the High Court in Writ

Petition No.678/2000. The Labour Court rejected that application on

07-02-2007 and this rejection then formed subject matter of Writ

Petition No.3396/2007.

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2. Learned Single Judge heard respective parties and then

came to conclusion that issue was not open for scrutiny in reference

proceedings before the Labour Court. The workmen's objection to that

scrutiny because of earlier adjudication by High Court was upheld and

writ petition was allowed.

3. Learned Advocate Shri Masood Shareef appearing for

appellant submits that challenge in earlier Writ Petition No.678/2000

was essentially different in nature and content as compared to

challenge in Writ Petition No.3396/2007. Question whether

respondent No.1 is or is not a workman as denied in Section 2(s) of the

Industrial Disputes Act is essentially a question of fact and cannot be

answered in absence of oral evidence and documents. Writ Petition

No.678/2000 was filed at very early stage when order making

reference of dispute to Central Government Industrial Tribunal itself

was questioned. Thus contentions raised at that juncture were only to

demonstrate non-application of mind by reference making authority

and therefore, lack of subjective satisfaction. He submits that findings

then recorded were not after appreciation of material brought on

record as evidence. To buttress his contention, he has relied upon

judgment of Hon'ble Supreme Court in the case of Chauharya

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Tripathi and Ors. vs. LIC of India and Ors. reported at AIR 2015 SC

2275 and in the case of Secretary, Indian Tea Association vs. Ajit

Kumar Barat and others reported at AIR 2000 SC 915.

4. Nobody appears for respondent No.1 or respondent No.3

Tribunal.

5. Learned Advocate Mrs. Mugdha Chandurkar has appeared

for respondent No.2/Union of India. She submits that findings

recorded by learned Single Judge in judgment dated 25-01-2008 are

neither without jurisdiction nor perverse.

6. Appellant has relied upon judgment in the case of

Chauharya Tripathi and Ors. vs. LIC of India and Ors. (supra), to

urge that issue whether a particular person is or is not a workman can

be adjudicated upon only after parties adduce evidence. It is apparent

that the issue itself necessitates scrutiny of the work performed by such

person, his essential duties and other duties. This can be brought on

recored only through oral evidence.

7. Judgment in case of Secretary, Indian Tea Association vs.

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Ajit Kumar Barat and others (supra) has been relied upon to point

out nature of power exercised by authority making reference of dispute

under Section 10 of the Industrial Disputes Act. Perusal of this

judgment reveals that it is administrative order and the appropriate

Government is entitled to go into question whether industrial dispute

exists or is apprehended. It is also clarified by the Hon'ble Apex Court

that no lis is involved as such as that order is made on subjective

satisfaction of Government. If any reason is given and it appears that

appropriate Government took into account any irrelevant or foreign

material, High Court may in given case, intervene in writ jurisdiction.

8. Here after the workman approached conciliation

machinery, a reference was made to Central Government Industrial

Tribunal under Section 10 of the Industrial Disputes Act by competent

authority. Present appellant challenged that act of appropriate

Government by filing Writ Petition No.678/2000 and urged that it was

without subjective satisfaction. It appears that non-consideration of

fact that respondent No.1 was not a workman, was pressed into service

as an instance thereof.

9. It is no doubt true that while considering such petition in

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which correctness of decision to make reference is questioned, the

emphasis is on finding out whether subjective satisfaction about

existence of industrial dispute or otherwise is reached by the

appropriate Government. If it is found that there is no such subjective

satisfaction or then the process itself is found to be faulty, High Court

can intervene in the matter. If after proper application of mind, a

reference is made, fact that reference has been made does not in any

way derogate from the jurisdiction of Central Government Industrial

Tribunal to find out whether person approaching it is covered under

Section 2(s) of the Industrial Disputes Act or not. Thus merely because

authority making reference finds that person approaching it is a

workman and therefore, makes a reference under Section 10 of the

Industrial Disputes Act, the Labour Court is not prohibited after parties

adduce evidence, from holding otherwise.

10. However, in present fact when Writ Petition No.678/2000

was preferred, appellant had in paragraph 14 of that writ petition

contended that it was necessary for authority making reference to

ascertain whether respondent No.1 was workman or not. Failure to

apply mind to this aspect of matter according to it, went to root of the

controversy thereby ousting the jurisdiction of the machinery under the

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Industrial Disputes Act. In impugned judgment, learned Single Judge

has quoted relevant extract in paragraph 15. Further consideration in

impugned judgment in Writ Petition No.678/2000 reveals that parties

elaborately addressed arguments to demonstrate that respondent No.1

was or was not workman. In Writ Petition No.678/2000 those

arguments find place in paragraph No.27. That paragraph is

reproduced by learned Single Judge in paragraph 21 of the impugned

judgment. It is, therefore, obvious that the appellant while

approaching this Court in Writ Petition No.678/2000 attempted to

demonstrate that respondent No.1 was not a workman. It is this effort

that is evaluated in judgment dated 06-07-2001 delivered in Writ

Petition No.678/2000. Present appellant, therefore, expressly called

for a finding on question of workman, perhaps then they hoped to

succeed in proving that respondent No.1 is not a workman. It is

obvious that had they succeeded at that juncture, objections as to

content or nature of challenge in Writ Petition No.678/2000 would not

have been raised by them.

11. The judgment dated 06-07-2001 in Writ Petition

No.678/2000 negates all contentions of employer and upholds the act

of making reference. The reference then proceeded further before the

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Central Government Industrial Tribunal.

12. When matter proceeding further, preliminary issue

regarding status of respondent No.1 came to be framed at the instance

of present appellant. Appellant, accordingly, started leading evidence

and as noted supra, during cross-examination of third witness,

respondent No.1 filed application and pointed out earlier adjudication

dated 06-07-2001 in Writ Petition No.678/2000.

13. Having invited this Court in writ jurisdiction to pronounce

upon nature of duties performed by respondent No.1, appellant/

employer cannot be permitted to urge that said finding reached by this

Court must be overlooked or then must be understood as delivered in a

narrower jurisdiction/limited jurisdiction.

14. Contention that respondent No.1 has raised objection of

res judicata belatedly i.e. at the stage of cross-examination of third

witness of appellant, is again without any merit. The adjudication

already existed and workman has only pointed it out to Labour Court

at that stage. He has, however, pointed it out before the Labour Court

(CJIT) proceeded to hear the arguments after parties lead their

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evidence. Hence, it cannot be said that because of belated raising of

such an objection any prejudice is suffered by present appellant.

15. The learned Single Judge has, therefore, correctly

appreciated the controversy. We do not see any jurisdictional error or

perversity. This letters patent appeal is, accordingly, dismissed. No

costs.

                                 JUDGE                                JUDGE

adgokar