M/S Hongkong And Shanghai Banking ... vs Govt. Of India & Anr.
2008 Latest Caselaw 1722 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ WRIT PETITION (CIVIL) 12602 of 2006


                                           Reserved on    : 18th August , 2008
                                      Date of Decision:   24th September,2008

 #    M/S HONGKONG AND SHANGHAI
      BANKING CORPORATION LTD.               ..... Petitioner
                       Through : Mr.Kailash Vasdev, Sr.Advocate
                       with Mr.Siddharth Dias, Advocate.

                  versus

 $     GOVT. OF INDIA & ANR.                  ... Respondents
       ^                  Through : Mr.Sewa Ram and
                          Mr.R.K.Bachchan, Advocate for Union of
                          India.

                               Ms.Manju Saxena in person.


  % CORAM:
    HON'BLE MR. JUSTICE SIDDHARTH MRIDUL


1.    Whether reporters of local papers may be allowed to see the
      judgment?                                                   YES.
2.    To be referred to the Reporter or not?                      YES.
3.    Whether the judgment should be reported in the Digest?      YES.


                           JUDGMENT

SIDDHARTH MRIDUL, J :

1. The challenge in this writ petition is to the order dated 30th June, 2006

passed by the Presiding Officer, Central Government Industrial Tribunal

cum Labour Court (hereinafter referred to as "the Industrial Adjudicator"),

whereby the petitioner herein (hereinafter referred to as "Corporation")

was directed to make payment of Rs.30,000/- (rupees thirty thousand) per

month to Respondent No.2 herein (hereinafter referred to as "Workman"),

regularly till disposal of ID No.18 of 2006, as well as to quash the Order of

Reference made by the Secretary, Ministry of Labour, Government of India,

referring the industrial dispute between the parties to the Industrial

Adjudicator with the following terms of reference:

- "Whether the action of the Chief Executive Officer, HSBC, India Area Management Officer, 52/60, Mahatma Gandhi Road, P.O.Box 128, Mumbai - 400 001, in terminating the services of Mrs.Manju Saxena, Staff Officer, with effect from 1.10.2005 without giving her full remuneration benefits is just, valid and legal? If no, to what benefits the workman is entitled for and what directions are necessary in the matter."

2. It is the admitted position that the workman joined the services of the

Corporation on 10th March, 1986 as Lady Secretary. She was initially

engaged as Confidential Secretary and later as Senior Confidential

Secretary.

3. On 1st October, 2004, the workman was placed in the category of

"Senior Confidential Secretary/Staff Officer" in "Band II" for the purposes

of fixation of her wages. According to the Corporation with effect from

1st October, 2004, Officers in Secretary grades were converted to a new

broad-banded structure so defined by the Corporation in the following

manner:-

"Broadbanding will allow us to have flexible pay structure aligned to the market, enabling us to attract, develop and motivate the very best employees. In addition it will create a flatter organization structure supporting business alignment and improving communication. Finally, it will move employee focus towards acquiring skills rather than rewarding seniority and chasing grades.

The new grading structure will be supported by the current hay job evaluation process, and defined

based on a range of hay scores. A comprehensive exercise has been conducted to ensure evaluation is up to date prior to conversion. Scores have been established for new jobs and scores have been revised for jobs which have undergone recent changes. Future new and revised jobs will continue to be placed into appropriate bands based on job evaluation results."

4. According to the Corporation, the workman is stated to have been

drawing a salary of Rs.58,330/- (rupees fifty eight thousand three hundred

and thirty) per month from 1st October, 2004 and additional amounts

towards annual bonus, contributions towards bonus, provident fund and

gratuity.

5. According to the Corporation, in May, 2005, it reviewed its working

norms and positions of its staff, on which consideration various positions

were to be discontinued. One of such posts was held by the workman. As a

consequence, the Corporation offered persons in those positions a

severance package and/or alternate employment.

6. According to the Corporation since the respondent declined the

alternate position as a Staff Officer, her services were terminated with

effect from 1st October, 2005 in terms of the contract of service set out

herein below:-

"TERMINATION OF EMPLOYMENT - after confirmation in the permanent service of the Bank a Secretary will be entitled to terminate her employment upon her giving to the Bank three months‟ prior notice of her intention to do so. The Bank may also terminate a Secretary‟s employment after giving her three months‟ remuneration where such termination of service is as a result of violation of the terms and conditions of employment, or breach of any Rules and regulations or of misconduct in any manner prejudicial to the interest of the Bank in the context of the confidential nature of the duties entrusted to her."

"If termination of employment is for any other reason, the Bank will give six months' prior notice of its intention to do so or payment of six months' remuneration......" (emphasis supplied)

7. According to the Corporation, the services of the workman were

terminated after paying her six months‟ salary as compensation in lieu of

notice period as provided in the contract of employment and, as a special

case she was also paid compensation equivalent to 15 days‟ salary for each

completed year of service.

8. The workman, thereafter, raised a dispute invoking the jurisdiction of

the authorities under the Industrial Disputes Act which culminated with the

subject reference as aforesaid.

9. On the said reference being made, the workman filed a statement of

claim to which the Corporation filed its reply and the workman thereupon

filed a rejoinder.

10. Pending the hearing and disposal of the reference, the workman filed

an application for interim relief, inter alia, with a prayer for a direction to

the Corporation to release wages to her during the pendency of the

proceedings before the Industrial Adjudicator.

11. The Corporation filed a reply opposing the grant of interim relief on

the following grounds:-

a) That the Industrial Adjudicator must first decide the

question of whether the workman is a "workman "as defined

in Section 2(s) of the Industrial Disputes Act, 1947

(hereinafter referred to as the ID Act) before considering the

demand for grant of interim relief.

b) The quantum of salary received by the workman prima facie

excludes her from the definition of workman under the ID Act

and, therefore, she is not eligible or entitled to any relief

under the provisions of that Act.

c) That the workman was not entitled to the grant of interim

relief by the Industrial Adjudicator since the interim relief

sought was not incidental to any point of dispute in relation

to the subject reference and was independent of it.

12. On the basis of the pleading of the parties, the Industrial Adjudicator

framed the following points for determination:

1. Whether the claimant is not a workman in view of Section 2(s) of

the ID Act?

2. Whether severance package is improper or unjustified and

retrenchment is illegal?

3. Whether the claimant is entitled to get interim relief in view of her

illegal retrenchment?

13. In respect of point No.1, the Industrial Adjudicator found that the

workman had been appointed as Confidential Secretary and continued so up

to September, 2004. Thereafter, she was given the designation of Staff

Officer, but the nature of her duties remained the same. Therefore,

regardless of the fact that she was posted as „Staff Officer‟ with a salary of

more than Rs.1,600/- (rupees one thousand six hundred), from a perusal of

the Broadband structure produced by the Corporation, it could not be

apprehended that any role of managerial, supervisory or administrative

nature was being performed by the workman. Further, the workman had all

along being performing clerical duties of payments and clearings. Noticing

the lack of material produced on behalf of the Corporation, in relation to

the workman‟s purported managerial, supervisory or administrative work,

and the submission of the Corporation that the matter would become clear

only after recording of evidence in the proceedings, the Industrial

Adjudicator observed that to all intents and purposes, the workman was

entrusted with clerical work, and the nomenclature designating her as Staff

Officer was of little importance. Consequently, observing that the nature of

work must be ascertained from the dominant nature of duties and not by

nomenclature, the Industrial Adjudicator arrived at a finding that the

workman was covered within the definition under Section 2(s) of the ID Act.

14. Insofar as, point No.2 above was concerned the Industrial Adjudicator

observed that the pension amount of the workman had been frozen by the

Corporation under the benefit - Pension Scheme/Gratuity Amount and Leave

Encashment etc. and that the Corporation had failed to calculate all her

dues and pay the same at the time of retrenchment and as such the

retrenchment order was invalid and illegal. Further, the Corporation was

discriminatory towards the workman, inasmuch as, the severance package

offered to the workman did not include the full component of wages and

waiver of housing loan standing in her name, which benefit had been

extended to her co-employees, namely, Mrs. Geeta Raj Gopalan and

Mrs.Poonam Garg, who were similarly situated as the workman and

belonged to the same category. The Industrial Adjudicator, however, stated

that since the present application by the workman was for interim relief,

therefore, the entire matter in this behalf need not be considered at this

stage, and decided this point accordingly.

15. In respect of point No.3 above, the Industrial Adjudicator after

considering that the workman had been retrenched after twenty long years

of service by the Corporation, by resorting to the methodology of

restructuring her post, arrived at the conclusion that the workman had

made out a prima facie case and was entitled to the grant of interim relief,

inasmuch as, the workman was entitled to subsistence benefit and would

suffer irreparably if the same was not granted to her. Therefore, coming to

the conclusion that interim relief was admissible in matters incidental to the

main question, under the provision of Section 10(4) of the ID Act, and that

the balance of convenience was in favour of the workman, the Industrial

Adjudicator proceeded to direct that Corporation to pay the workman

Rs.30,000/- (rupees thirty thousand) per month regularly till the disposal of

the subject reference.

16. Mr.Kailash Vasdev, learned Senior Advocate appearing on behalf of

the Corporation, firstly, submitted that the respondent herein was not a

workman on the following grounds:-

a) That she was employed on a salary of Rs.58,330/-.

b) She was doing supervisory work.

c) She had been offered severance package of Rs.57,29,533/-

which she had declined.

17. Learned Counsel, also urged that even otherwise the Corporation had

duly complied with the provisions of Chapter V-A of the ID Act and in

particular Section 25F, and the workman had been paid six months‟ basic

salary in lieu of notice as well as fifteen days compensation for every

completed year of service, and also that it was settled law that the

requirement of notice as per sub-Section (c) of Section 25F was only

directory in nature. Alternatively, counsel urged that the services of the

workman were discontinued under a contract of employment and was,

therefore, covered as an exception to "retrenchment" as defined under the

provisions of Section 2(oo) (bb) of the ID Act.

18. Counsel‟s third submission was to the effect that the reference made

under the ID Act was itself bad and suffered from the vice of non-application

of mind, inasmuch as, after it was recorded therein that the affected person

was a „Staff Officer‟ and despite forming such an opinion, the dispute was

erroneously still referred to the Industrial Adjudicator, by the appropriate

Government.

19. In support of his first submission, Mr.Vasdev, invited the attention of

this Court to the following decisions:-

- Honkong and Shanghai Banking Corporation Limited Vs. Central

Government Industrial Tribunal, Calcutta and Ors. reported as

2006, 2, LLN, 566; (Calcutta High Court).

- Union Carbide (India) Limited Vs. D.Samuel and Ors. 1998, Vol.II,

CLR, 736; (Bombay High Court).

- Tata Sons Ltd. Vs. S.Bandhopadhyay, 2004 LLR, 506 (Delhi High

Court.

- Muir Mills Unit of NTPC (U.P.) Ltd. Vs. Swayam Prakash Srivastava

& Anr., 2007, LLR, Page 225 (Supreme Court)

20. In support of his second submission he relied on the following

decisions:-

- Gurnail Singh & Ors. Vs.State of Punjab & Ors. AIR 1993, SC 138;

and

- Pramod Jha and Ors. vs. State of Bihar and Ors., reported as AIR

2003, SC 1872.

21. In support of his third submission he placed reliance on the following

decisions:

- Moolchand Kharati Ram Hospital K. Union vs. Labour

Commissioner and Ors., reported as 2002 SCC (10), 708.

- The Secretary Indian Tea Association vs. Ajit Kumar Barat & Ors.

reported as 2000 SCC (3), 93.

- Tamil Nadu Newsprint and Papers Ltd., Contract Thozhilalar

Sangha, Tiruchirapalli vs. State of Tamil Nadu & Ors., 1999 LLR,

Page 83 (Madras High Court)

- Bank of Baroda Employees‟ Association &Anr. vs. Union of India &

Ors. 2005 LLR, Page 833 (Calcutta High Court)

- Ravi N.Tikoo Vs. Deputy Commissioner (S.W.) & Ors., 2006 LLR,

496 (Delhi High Court)

- M/s Shaw Wallace & Co. Ltd. Vs. State of Tamil Nadu represented

by Commissioner and Secretary, Labour Department & Ors., 1988

(1) LLN, 172 (Madras High Court)

- Ram Avtar Sharma & Ors. Vs. State of Haryana & Anr. and

Surender Kumar Sharma vs. Union of India & Ors. 1985 (3) SCC,

Page 189 (Supreme Court).

22. On the other hand the workman appearing in person submitted that

the question of - "whether the respondent herein is a workman or not?" is

a disputed question of fact which can be decided only after evidence was

recorded and considered by the Industrial Adjudicator.

23. Her second submission was that the Corporation was precluded from

challenging the subject reference at this stage, inasmuch as, the

Corporation had participated in the proceedings before the Industrial

Adjudicator and had submitted to its jurisdiction till the time of passing of

the impugned order dated 30th June, 2006. The workman further urged that

although the Corporation purported in the present writ petition to challenge

the order of reference dated 8th March, 2006, a copy of the subject

reference had not been filed or annexed with the writ petition.

24. The workman made numerous other submissions, impugning the

conduct of the Corporation, both before the Industrial Adjudicator and this

Court, including but not limited to, misleading this Court on the facts

without filing any documentary evidence in support of such purported facts.

In addition, she expectedly supported the validity and legality of both the

order of the Central Government making the subject reference and the

order of the Industrial Adjudicator granting interim relief.

25. In support of her contentions the workman relied on the following

judicial decisions:-

- Anand Regional Co.Op.Oil S.Union Ltd. vs. Shailesh Kumar

Harshadbhai Shah reported as 2006 (7) scale 603.

- D.D.Gears Ltd. vs Secretary (Labour) & Ors., reported as 2006 IV

AD (Delhi) 254.

- The Management of Hotel Imperial, New Delhi vs. Hotel Workers

Union reported as AIR 1959 SC 1342.

- D.P.Maheshwari Vs. Delhi Admn. & Ors. reported as (1983) 4 SCC

- Mahabir Jute Mills Ltd. vs. Shri Shibban Lal Saxena & Ors., in Civil

Appeal No.781/1975, decided on 30th July 1975.

- M/s Mathur Aviation vs. Lt.Governor, 1977 Rajdhani Law Reporter,

59.

- Calcutta Port Shramik Union Vs. Calcutta River Transport

Association & Ors., reported as AIR (1988) , SC 2168.

- National Council for Cement & Building Materials vs. State of

Haryana & Ors. reported as (1996) 3 SCC 206.

- Harbans Lal vs. Jagmohan Saran reported as (1985) 4 SCC, 333.

- Muralidharan K vs. Management of M/s Circle Freight

International reported as (2007) 96, DRJ 14 (High Court of Delhi).

- M/s Hindustan Tin Works Pvt. Ltd. vs The Employees of M/s

Hindustan tin Works reported as (1979) 2 SCC 80.

- The Cooper Engg. Ltd. vs. P.P.Mundhe reported as AIR 1975 SC

1900.

- Municipal Corporation of Delhi vs Asha Ram & Anr. reported as

(2005 II AD Delhi 285)

- Municipal Corporation of Delhi vs. Mahipal Singh reported as

(2005 II AD Delhi 287)

- A.F.Ferguson vs. Presiding Officer reported, in Civil Writ Petition

2649/2002 decided on 15th December, 2006.

26. Although voluminous material has been filed on record by the parties

and extensive arguments have been addressed, supported by copious

written submissions, on both the facts and the law, and further supported

by a plethora of judicial pronouncements, the two questions or issues, which

in my view require consideration, at this juncture, in the facts and

circumstances of the case are as follows:-

1. Whether the Corporation can be permitted to question the subject reference at this juncture in the proceedings when the reference is pending adjudication before the Industrial Adjudicator?

2. Whether the impugned order directing payment of Rs.30,000/- (rupees thirty thousand) per month as interim relief pending adjudication by the Industrial Adjudicator of the subject reference is liable to be quashed?

27. Before adverting to the rival submissions by the parties in relation to

the questions framed hereinabove, it is necessary to consider the relevant

judicial pronouncements in this respect:-

(a) In Telco Convoy Drivers Mazdoor Sangh vs. State of

Bihar (supra) the Supreme Court considering the question

of a reference under Section 10 (1) by the appropriate

Government observed that:-

"...11. It is true that in considering the question of making a reference under Section 10(1), the Government is entitled to form an opinion as to whether an industrial dispute "exists or is apprehended", as urged by Mr. Shanti Bhusan. The formation of opinion as to whether an industrial dispute "exists or is apprehended" is not the same thing as to adjudicate the dispute itself on its merits. In the instant case, as already stated, the dispute is as to whether the convoy drivers are employees or workmen of TELCO, that is to say, whether there is relationship of employer and employees between TELCO and the convoy drivers. In considering the question whether a reference should be made or not, the Deputy Labour Commissioner and/or the Government have held that the convoy drivers are not workmen and, accordingly, no reference can be made. Thus, the dispute has been decided by the Government which is, undoubtedly not permissible.

12. It is, however, submitted on behalf of TELCO that unless there is relationship of employer and employees or, in other words, unless those who are raising the disputes are workmen, there, cannot be any existence of industrial dispute within the meaning of the term as defined in Section 2(k) of the Act. It is urged that in order to form an opinion as to whether an industrial dispute exists or is apprehended, one of the factors that has to be considered by the Government is whether the persons who are raising the disputes are workmen or not within the meaning of the definition as contained in Section 2(k) of the Act.

13. Attractive though the contention is, we regret, we are unable to accept the same. It is now well settled that, while exercising power under Section 10(1) of the Act, the function of the appropriate Government is an administrative function and not a judicial or quasi judicial function, and that in performing this administrative function the Government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power

conferred on it by Section 10 of the Act. See Ram Avtar Sharma vs. State of Haryana;(1985) 3 SCC 189, M.P.Irrigation Karamchari Sangha vs. State of M.P.; (1985) 2 SCC 103, Shambhu Nath Goyal vs. Bank of Baroda, Jullundur; (1978) 2, SCC 353.

14. Applying the principle laid down by this Court in the above decisions, there can be no doubt that the Government was not justified in deciding the dispute. Where, as in the instant case, the dispute is whether the persons raising the dispute are workmen or not, the same cannot be decided by the Government in exercise of its administrative function under Section 10(1) of the Act. As has been held in M. P. Irrigation Karamchari Sangh's case (supra), there may be exceptional cases in which the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. Further, the Government should be very slow to attempt an examination of the demand with a view to declining reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of the valid disputes, and that to allow the Government to do so would be to render Section 10 and Section 12(5) of the Act nugatory."

(b) In D.D.Gears Ltd. vs Secretary (Labour) & Ors., (supra)

this court observed that -

"...20. In our opinion, we cannot interfere with the reference order under Section 10(1) of the Industrial Disputes Act because that order does not affect the rights of the parties. Hence the writ petition against that order is liable to be dismissed.

21. It is well settled that a Writ Petition lies only when the rights of some party has been adversely affected. A mere reference under Section 10(1) of the Industrial Disputes Act does not affect anyone‟s rights, and hence no writ petition should ordinarily be entertained against a mere reference under Section 10 (1), as such a petition is premature.

22. It is only when an award is given by the Labour Court or Tribunal that a writ petition should be entertained."

(c) In D.P.Maheshwari vs. Delhi Administration

(supra) opining that the High Court was totally

unjustified in interfering with the Order of the

Labour Court under Article 226 of the Constitution of

India, the Supreme Court observed:-

"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 jeopardise 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 Article 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 Article 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 Article 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- adjudication 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 journeying 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."

(d) In National Council for Cement and Building Materials

vs. State of Haryana & Ors. (supra) whilst considering the

interference under Article 226 of the Constitution of India

with an interlocutory order of the Industrial Tribunal, the

Supreme Court held that -

11. Usually, whenever a reference comes up before the Industrial Tribunal, the Establishment, in order to delay the proceedings, raises the dispute whether it is an "industry" as defined in Section 2(j); or whether the dispute referred to it for adjudication is an "industrial dispute" within the scope of Section 2(k) and also whether the employees are "workmen" within the meaning of Section 2(s). A request is made with that these questions may be determined as preliminary issues so that if the decision on these questions are in the affirmative, the

Tribunal may proceed to deal with the real dispute on merits.

12. We, however, cannot shut our eyes to the appalling situation created by such preliminary issues which take long years to settle as the decision of the Tribunal on the preliminary issue is immediately challenged in one or the other forum including the High Court and proceedings in the reference are stayed which continue to lie dormant till the matter relating to the preliminary issue is finally disposed of.

13. This Court in Cooper Engineering Ltd. v.

P.P. Mundhe, AIR 1975 2 SCC 661. in order to obviate undue delay in the adjudication of the real dispute, observed that the Industrial Tribunals should decide the preliminary issues as also the main issues on merits all together so that there may not be any further litigation at the interlocutory stage. It was further observed that there was no justification for a party to the proceedings to stall the final adjudication of the dispute referred to the Tribunal by questioning the decision of the Tribunal on the preliminary issue before the High Court.

14. Again in S.K. Verma v. Mahesh Chandra, (1983) 4 SCC 214, this Court Strongly disapproved the practice of raising frivolous preliminary objections at the instance of the employer to delay and defeat the purpose of adjudication on merits.

15. In D.P. Maheshwari v. Delhi Administration, 1983 Labour and Industrial Cases 1629, this Court speaking through O. Chinnappa Reddy, J. observed that the policy to decide the preliminary issue required a reversal in view of the "unhealthy and injudicious practices resorted to for unduly delaying the adjudication of industrial disputes for the resolution of which an informal forum and simple procedure were devised with avowed object of keeping them from the dilatory practices of Civil Courts". The Court observed that all issues whether preliminary or otherwise, should be decided together so as to rule out the possibility of any litigation at the interlocutory stage. To the same effect is the decision in Workmen v. Hindustan Lever Ltd, 1984 4 SCC

16. The facts in the instant case indicate that the appellant adopted the old tactics of raising a preliminary dispute so as to prolong the adjudication of industrial dispute on merits. It raised the question whether its activities constituted an 'Industry' within the meaning of the Industrial Disputes Act and succeeded in getting a preliminary issue framed on that question. The Tribunal was wiser. It first passed an order that it would be heard as a preliminary issue, but subsequently, by change of mind, and we think rightly, it decided to hear the issue along with other issues on merits at a later stage of the proceedings. It was at this stage that the High Court was approached by the appellant with the grievance that the Industrial Tribunal, having once decided to hear the matter as a preliminary issue, could not change its mind and decide to hear that issue along with other issues on merits. The High Court rightly refused to intervene in the proceedings pending before the Industrial Tribunal at an interlocutory stage and dismissed the petition filed under Article 226 of the Constitution. The decision of the High Court is fully in consonance with the law laid down by this Court in its various decisions referred to above and we do not see any occasion to interfere with the order passed by the High Court. The appeal is dismissed, but without any order as to costs.

(e) In Cooper Engineering Ltd. vs. P.P.Mundhe, (supra)

the Supreme Court dealing with the issue of vitiating of

defective inquiry and opportunity to Management to adduce

evidence stated as follows in paragraph 22:-

"We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication."

28. From a conspectus of the above decisions the following propositions

of law are deducible:-

(i) That the appropriate Government in considering

the question whether a reference should be made

or not cannot proceed to adjudicate the dispute

itself on its merits. It is now well settled that

while exercising power under Section 10(1) of the

ID Act, the function of the appropriate

Government is an administrative function and not

a judicial or quasi judicial function, and that, in

performing this administrative function, the

Government cannot delve into the merits of the

dispute and take upon itself the determination of

the lis which would certainly be in excess of the

power conferred on it by Section 10 of the ID Act.

Thus, a dispute, as to whether the persons raising

the dispute are „workmen‟ or not cannot be

decided by the Government, in the exercise of its

administrative function under Section 10(1) of the

ID Act.

(ii) Further, the Government should be very slow to

attempt an examination of the demand with a view

to declining reference and Courts are always

vigilant whenever the Government attempts to

usurp the powers of the Tribunal for adjudication

of the valid disputes, and that to allow the

Government to do so would be to render Section

10 and Section 12(5) of the ID Act, nugatory.

(iii) The Courts cannot interfere with a reference

order under Section 10(1) of the ID Act because

that order does not affect the rights of the parties.

(iv) It is well settled that the writ petition lies only

when the rights of some party have been

adversely affected. A mere reference under

Section 10(1) of the ID Act does not affect

anyone‟s rights, and hence no writ petition should

ordinarily be entertained against a mere reference

under Section 10(1) of the ID Act, as such a

petition is premature.

(v) It is only when an award is given by the Labour

Court or Tribunal that a writ petition should be

entertained.

(vi) It is better that Tribunals, particularly, those

entrusted with the task of adjudicating labour

disputes where delay may lead to misery and

jeopardize 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 exercise of their jurisdiction under

Article 226 of the Constitution of India, stop

proceedings before a Tribunal so that a

preliminary issue may be decided by them.

(vii) The jurisdiction of the High Court under Article

226 of the Constitution should not 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 of issues more vital to them.

(viii) It is also worthwhile remembering that the nature

of the jurisdiction under Article 226 of the

Constitution of India is supervisory and not

appellate but the Court may exercise all necessary

appellate powers to do substantial justice. In the

exercise of such jurisdiction the High Court is not

required to be too astute to interfere with the

exercise of jurisdiction by special Tribunals at

interlocutory stages and on preliminary issues.

(ix) Usually, whenever a reference comes up before

the Industrial Tribunal, the Establishment, in

order to delay proceedings, raises the dispute

whether the employees are workmen within the

meaning of Section 2(s) of the ID Act. A request is

then made that these questions may be

determined as preliminary issues so that if the

decision on these questions are in the affirmative,

the Tribunal may proceed to deal with the real

dispute on merits.

(x) The court cannot, however, shut its eyes to the

appalling situation created by such preliminary

issues which take long years to settle as the

decision of the Tribunal on the preliminary issue is

immediately challenged in one or the other Forum

including the High Court and proceedings in the

reference are stayed which continue to lie

dormant till the matter relating to the preliminary

issue is finally disposed of.

(xi) It is observed that there is no justification for a

party to the proceedings to stall the final

adjudication of the dispute referred to the

Tribunal by questioning the decision of the

Tribunal on the preliminary issue before the High

Court.

(xii) It is also observed that the policy to decide the

preliminary issue requires a reversal in view of

the "unhealthy and injudicious practices resorted

to for unduly delaying the adjudication of

industrial disputes for the resolution of which an

informal forum and simple procedure were

devised with avowed object of keeping them from

the dilatory practices of Civil Courts." The Courts

have observed that all issues whether preliminary

or otherwise should be decided together so as to

rule out the possibility of any litigation at the

interlocutory stage.

(xiii) It is also clear that there is no justification for any

party to stall the final adjudication of the dispute

by the Labour Court by questioning its decision

with regard to the preliminary issue when the

matter, if worthy, can be agitated even after the

final award. It is legitimate for the High Court to

refuse to intervene at this stage. These

observations are necessarily to be borne in mind

to ensure that there is no undue delay in

industrial adjudication.

29. Coming to the rival submissions made on behalf of the parties, and

keeping in view, the pendency of the dispute between the parties to the writ

petition before the Industrial adjudicator, I do not propose to advert to the

merits at any great length or in minute detail, lest it prejudice the outcome

of the proceedings pending final adjudication as aforementioned. Be that as

it may, it is, however, necessary for the view I take hereinafter to briefly

encapsulate the fact situation to arrive at a conclusion. In the present case

it is an admitted position that the workman was initially employed as a

secretary to perform principally clerical duties. And although on behalf of

the Corporation it was strenuously urged that the workman did not fall

within the definition under the provisions of the ID Act, the Industrial

Adjudicator prima facie arrived at a contrary view and categorically found

that despite being appointed as „Staff Officer‟ by the Corporation, the

workman‟s, fundamental duties remained that of payments and clearings

which could not be said to be either managerial or supervisory. I agree

with that view, based on the pleadings before the Industrial adjudicator as

well as this Court on behalf of the parties. It is pertinent to note that the

termination of the workman was admittedly done by the Corporation

founded on the contract of employment which described the former as a

Secretary. In any event, this issue shall fall in the domain of the Industrial

Adjudicator, before whom the industrial dispute resulting in the present

writ petition, is pending Final adjudication, as aforesaid. Insofar as, the

maintainability of the present petition is concerned, it is observed that, the

Supreme Court, as well as this Court has consistently expressed the view

that, a mere reference under Section 10 of the ID Act, does not affect the

rights of the parties, and hence no writ petition should ordinarily be

entertained against a mere reference. Further, it is only when an award is

given by the Labour Court or Tribunal, that a writ petition should be

entertained. Furthermore, this Court is circumspect in the exercise of writ

jurisdiction, and does not interfere at the interlocutory stages, and on

preliminary issues, with the exercise of special jurisdiction vested in

Statutory Tribunals. It is also observed that, there is no justification for a

party to stall the final adjudication of the dispute referred to the Industrial

Adjudicator, by questioning preliminary proceedings before the High Court,

thereby delaying resolution of the reference, which continues to lie

dormant, to the prejudice of the other party, when the matters, if worthy,

can be agitated even after the final award. Alluding to the submission on

behalf of the Corporation, to the reference itself being bad, suffice to say

that, it is not permissible for the appropriate Government to decide whether

the person raising the dispute is a workman or not in the exercise of the

administrative, as distinguished from the judicial or quasi judicial, function

under the provisions of Section 10 of the ID Act. The Government cannot

delve into the merits of the dispute and take upon itself the determination of

the lis, which action would certainly be in excess of the power conferred

upon it by the provision of Section 10 of the ID Act. Lastly, I deal with the

contention of the Corporation with regard to the amount of Rs.30,000/- per

month directed to be paid to the workman every month during the

pendency of the dispute before the Industrial Adjudicator. In this respect, it

is seen that it was the case of the Corporation itself that the salary of the

former was an amount in the sum of Rs.58,330/- plus additional amounts

towards annual bonus, contributions towards bonus, provident fund and

gratuity. Further, the Industrial Adjudicator considered the fact that the

workman had been retrenched after twenty long years of service by the

Corporation, and came to the conclusion that the former had made out a

prima facie case entitling her to subsistence allowance, and would suffer

irreparably if the same was not granted to her. It is also seen that the

workman had urged both before the Industrial Adjudicator as well as this

Court that in keeping with her financial status, before the illegal

termination of her service, she was incurring expenses on a regular basis to

the extent of her salary, on account of her contribution to the corpus of her

family‟s fund, including but not limited to, the expenditure on the education

of her only son. The admission of her son to an MBA, Post Graduate Degree

was in a quandary owing to the unjust action of the Corporation. Further, it

was permissible to the Industrial Adjudicator in the facts and circumstances

of the instant case to grant relief under the power conferred on it by the

provisions of Section 10(4), in respect of matters incidental to the points of

dispute pending for adjudication [Ref: AIR 1959 Supreme Court 1342,

The Management of Hotel Imperial, New Delhi vs. Hotel Workers'

Union.

30. For the aforementioned reasons the two questions or issues raised

hereinbefore by me, are both answered in the negative. Neither can the

Corporation be permitted to question the subject reference at this juncture

when the proceedings in the reference itself are pending final adjudication

before the Industrial Adjudicator, nor is there any infirmity in the interim

order of the Industrial Adjudicator, directing the Corporation to make

payment of Rs.30,000/- per month, to the workman regularly till the

disposal of the industrial dispute. It would also be pertinent to observe here

that the evidence of the parties before the Industrial Adjudicator has

already been recorded by that Forum, and reference itself is on the verge of

being finally determined, and would have been so answered, but for the

injunction issued by this Court to the effect that, - "proceedings before the

Trial Court shall continue, however, final award will not be passed", dated

15th December, 2006.

31. In view of the above, I am of the opinion that the present writ petition

is without any merit, inasmuch as, it is not maintainable at this stage of the

proceedings before the Industrial Adjudicator. Resultantly, the writ petition

is hereby dismissed, but in the circumstances, without any order as to costs.

SIDDHARTH MRIDUL [JUDGE] September 24, 2008 bp