Jammu & Kashmir High Court
Sudhir Power Limited vs Union Territory Of J&K And Others on 7 May, 2022
Sr. No. 29
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
AT JAMMU
WP(C) No. 235/2021(O&M)
Sudhir Power Limited .....Appellant(s)/Petitioner(s)
Through: Mr. C. M. Koul, Sr. Advocate with
q
Mr. A. R. Bhat, Advocate
vs
Union Territory of J&K and others ..... Respondent(s)
Through: Mr. H. A. Siddiqui, Sr. Advocate with
Mr. Mehmood Ul Haq, Advocate
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
ORDER
1. The petitioner-company has filed the present petition for quashing the
order passed by the Industrial Tribunal-cum-Labour Court Srinagar-
Jammu(for short the Tribunal) dated 23.10.2020 by virtue of which the
prayer of the petitioner for treating the issues 4 and 5 as preliminary
issues in accordance with Order XIV Rule 2 of the Code of Civil
Procedure (CPC), has been rejected.
2. It is stated that the respondent Nos. 5 to 10 questioned the order of
termination of their services, which stood issued on the basis of enquiry
conducted for their various acts of severe misconduct including that of
assaulting Manager (HR) as well as in the face of the FIR registered
against the respondents 5 to 10. The petitioner filed the response to the
application of the respondents 5 to 10. During the course of the
proceedings, the learned Tribunal framed three issues vide order dated
15.10.2019 and the same are reproduced as under:
1. "Whether the termination/retrenchment of
applicants from the services is illegal, arbitrary and in
violation of Industrial Dispute Act and law governing the
field. OPP
2. If the issue No. 1 is proved in affirmative then
whether applicants are entitled for back wages and other
benefits. OPP
3. Relief."
3. Thereafter, on the motion of the petitioner, additional issues were
framed by the learned Tribunal, which read as under:
"(4) Whether the above titled petition filed under
Industrial Dispute Act, 1947 would lie at this
stage in the face of pendency of criminal challan
against the petitioners. OPR
(5) Whether the present application already filed can
further be carried on when the result of aforesaid
criminal trial is yet to come? OPR"
4. Thereafter, another application was filed by the petitioner for treating
above mentioned issues as framed vide order dated 24.01.2020 as
preliminary issues and the learned Tribunal dismissed the said
application vide order dated 23.10.2020.
5. The petitioner has impugned the order 23.10.2020 on the ground that as
per the mandate of Order XIV Rule 2 of the CPC, these issues are
required to be considered as preliminary issues and the learned Tribunal
has committed illegality by not treating the said issues as preliminary
issues.
6. Mr. C. M. Koul, learned senior counsel appearing for the petitioner has
vehemently argued that as per mandate of Order XIV Rule 2 of the
CPC, the additional issues were required to be treated as preliminary
issues.
7. Per contra, Mr. H. A. Siddiqui, learned counsel for respondent Nos. 5
to 10 has vehemently argued that the present petition has been filed just
to delay the proceedings and findings of the criminal court are not
binding upon the learned Tribunal.
8. Heard and perused the record.
9. The only contention raised by the petitioner is that the issues framed
vide order dated 24.01.2020 were required to be treated as preliminary
issues.
10. Order XIV Rule 2 CPC reads as under:
"[2 Court to pronounce judgment on all issues (1)
Notwithstanding that a case may be disposed of on a
preliminary issue, the Court shall, subject to the
provisions of sub-rule (2), pronounce judgment on all
issues.
(2) Where issues both of law and of fact arise in the same
suit, and the Court is of opinion that the case or any part
thereof may be disposed of on an issue of law only, it
may try that issue first if that issue relates to-
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being
in force, and for that purpose, if it thinks fit, postpone the
settlement of the other issues until after that issue has
been determined, and may deal with the suit in
accordance with the decision on that issue.]"
11. From the perusal of the above Rule, only those issues can be treated as
preliminary issues where the court lacks the jurisdiction and secondly,
where there is a bar to the suit created by any law.
12. Both the issues mentioned above, lack the essentials for being treated as
preliminary issues as the said issues are neither related to jurisdiction of
Tribunal nor with regard to any statute that creates bar for continuance
of proceedings.
13. The judgments relied upon by the learned senior counsel as mentioned
in the writ petition are not applicable in the present facts and
circumstances of the case as the said judgments do not lay down that
the civil proceedings are required to be terminated.
14. The Apex Court in D. P. Maheshwari v Delhi Admn. and others,
(1983) 4 SCC 293 has held as under:
"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 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 Art. 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. Art.
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-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
journeyings up and down. It is also worth while
remembering that the nature of the jurisdiction
under Art. 226 is supervisory and not appellate while
that under Art. 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."
15. The learned Tribunal has rightly come to the conclusion that it is
required to return the findings on all the issues, as such, this Court is of
the considered opinion that there is no jurisdictional error on the part of
the learned Tribunal.
16. Viewed thus, this petition is misconceived, as such, the same is
dismissed.
(RAJNESH OSWAL)
JUDGE
Jammu
07.05.2022
Rakesh
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
