Madras High Court
The Management Of vs The Presiding Officer on 16 June, 2021
W.P.No.27712 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.06.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
W.P.No.27712 of 2017 and
WMP.No.29663 of 2017
The Management of
K-1815 Mathavarayapuram Primary Agricultural
Co-operative Credit Society
Rep. by its President
Mathavarayapuram Post,
Coimbatore. ... Petitioner
-vs-
1.The Presiding Officer,
Labour Court, Coimbatore.
2. S.Mohan ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying for
the issuance of a Writ of Certiorari,to call for the records of the first respondent in
I.A.No.1064 of 2016 in I.D.No.161 of 2009 and quash the order dated 25.05.2017.
For Petitioner :
Mr.G.Anand
For Mr.T.S.Gopalan & Co.
for Mr.U.Manogar
For Respondents : Mr.Abnar and Abdullah (R2)
*****
ORDER
The Petitioner / Management has come forward with the present writ petition,
challenging the order of the 1st Respondent dated 25.05.2017 made in I.A.No.1064 of
2016 in I.D.No.161 of 2009.
W.P.No.27712 of 2017
2. The case of the Management is that the Workman / 2nd Respondent herein
raised an Industrial Dispute under Section 2(A)(2) of the Industrial Disputes Act, 1947
to set aside the dismissal order dated 10.04.2008 and to direct the Management to
reinstate him with continuity of service and other attendant benefits. It is further case of
the Management that during pendency of the dispute, the Management preferred an
application to decide the status of the second respondent at first instance as
preliminary issue before going for adjudication on merits, as, according to the
Management, the 2nd Respondent was not a Workman and he was employed only in
Supervisory and Managerial capacity and that he was terminated from service after due
enquiry.
2.1. It is also the case of the Management that as the Management had raised the
preliminary objection, the same was taken up by the Labour Court, by permitting the
parties to let in evidence with regard to the status of the Workman / 2 nd Respondent.
Subsequently, the Labour Court, after hearing the parties, dismissed the Interlocutory
Application filed by the Management, by observing that the preliminary issue raised in
the Application would be decided along with other issues in the Industrial Dispute, so as
to give an early disposal.
W.P.No.27712 of 2017
3. According to the Management, the preliminary issue to be decided is the root
of the dispute raised by the Workman and therefore, the said issue should have been
tried and decided by the Labout Court at the first instance. The Labour Court, instead of
doing so, combined both the preliminary and main issues together for joint quietus,
which is not acceptable. Learned counsel for the Management, in support of his
submission, relied upon the judgment of the Apex Court rendered by two Judges in the
case of Hussan Mithu Mhasvadkar vs. Bombay Iron & Steel Labour Board and
another, reported in (2001) 7 SCC 394, wherein, it was held as follows:
“5. On a careful consideration of the respective submissions of the
learned counsel on either side, we are of the view that in a case of the nature
where the Labour Court as well as the High Court entertained doubts about
the status of the appellant as a workman within the meaning of Section 2(s)
of the I.D. Act, instead of embarking upon an adjudication in the first
instance as to whether the respondent-Board is an Industry or not so as to
attract the provisions of the Industrial Disputes Act, ought to have refrained
from doing so and taken up the question about the status of the appellant
for adjudication at the threshold and if only the finding recorded was
against the appellant refrained from adjudicating on the larger issue
affecting the various kinds of other employees, as to the character of the
Board, as an industry or not. The larger issue should have been entertained
for consideration only in a case where it could have been disposed of
otherwise without going into the nature and character of the Undertaking
itself. For the said reason and also having regard to the submission made by
the learned senior counsel for the respondents itself that the question as to
whether the appellant falls within the definition of 'workman' may itself be
considered on the supposition that the Board is an industry, we propose to
deal with the status of the appellant as to whether he is a workman or not at
the first instance and if necessitated on account of our decision on that
issue, undertake the larger issue for our consideration and decision. The
question as to what constitutes an industry for the purposes of the Industrial
Disputes Act and what are those Undertakings or Establishments or
activities, which answer the definition of 'industry' in Section 2(j), has been
W.P.No.27712 of 2017
laid down authoritatively in several decisions of this Court, including the
one in the Bangalore Water Supply and Sewerage Board case (supra) and
what remains is to apply to individual cases, the principles laid down
therein to adjudge the character or the activity or an undertaking or
institution in a given case on the touchstone of the principles laid down
therein. In view of this position in law, it becomes all the more necessary to
first undertake an adjudication of the question as to status of the appellant.”
4. In the aforesaid decision, the Apex Court has categorically held that when the
status of the Workman has been questioned, naturally the Labour Court will have to
answer that issue first and thereafter, proceed with the matter on merits. Therefore, in
view of the aforesaid judgment, learned counsel appearing for the Management
contended that the order of Labour Court is liable to be set aside and the matter to be
remanded back to the Labour Court to pass orders on the preliminary issue raised by the
Management..
5. Per contra, learned counsel appearing for the Workman contended that the
issue whether the 2nd respondent is a Workman or not can be tried along with other
issues and no prejudice is going to be caused to the Management, if all the issues are
tried together.
6. Heard both sides. Perused the records.
7. It is not in dispute that the Workman has raised an Industrial Dispute,
challenging the order of dismissal dated 10.04.2008 and to direct the Management to
reinstate him with continuity of service and other attendant benefits, as early as in the
W.P.No.27712 of 2017
year 2009 and nearly 12 years have gone by from the date of Industrial Dispute. It is no
doubt true that in the judgment cited by the learned counsel for the Management, the
Supreme Court has categorically held that the status of the workman has got to be
decided first and findings need to be rendered. However, in the said judgment reported
in (2001) 7 SCC 394, the decisions rendered by a Three Judges Bench of the Apex
Court in D.P.Maheswari Versus Delhi Administration and others reported in 1983 II
LLJ 425 and S.K.Verma Vs. Mahesh Chandra and another reported in 1983 II LLJ
429 have not been taken note of. In the judgment reported in 1983 II LLJ 425, the Apex
Court has held as follows:
"There was a time when it was thought prudent and wise policy
to decide preliminary issue first. But the time appears to have arrived
for a reversal of that policy. 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 or the jurisdiction of the Supreme 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. Art. 226 and Art.136 are not
meant to be used to break the resistance of workman in this fashion.
Tribunals and Courts who are requested to decide preliminary question
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
W.P.No.27712 of 2017
objections and journeyings up and down."
8. In the other decision reported in 1983 II LLJ 429, the issue was whether the
Development Officer of the Life Insurance Corporation is a Workman or not and the
Supreme Court observed that mere designation is not suffice to hold that the person is
not a Workman and held that the Development Officer is a Workman.
9. It is to be noted that while relying on a judgment, if it is found that the factual
situation totally differs, then there is no compulsion for the subordinate courts to blindly
rely on the same to arrive at a conclusion, as held by the Hon'ble Supreme Court in the
case of Padmasundara Rao (Dead) & others vs. State of Tamil Nadu and others,
reported in (2002) 3 SCC 533, as follows:
"Courts should not place reliance on decisions without discussing as
to how the factual situation fits in with the fact situation of the decision on
which reliance is placed. There is always peril in treating the words of
speech or judgment as though they are words in a legislative enactment, and
it is to be remembered that judicial utterances are made in the setting of the
facts of a particular case, said Lord Morris in Herrington vs. British
Railways Board (1972) 2 WLR 537. Circumstantial flexibility, one
additional or different fact may make a world of difference between
conclusions in two cases."
W.P.No.27712 of 2017
10. The Apex Court in yet another case in Anand Bazar Patrika (P) Ltd. vs. The
Workmen reported in (1970) 3 SCC 248 held that minor relegation of duties, which are
Supervisory in nature, cannot convert the office work of a Senior Clerk in-charge into
that of a Supervisor. It was further held that when a person executes the Supervisory
work and incidentally, for a fraction of time, looks after the Clerical Work, then he can
be called as a Supervisor and the similar is the situation for a Clerk doing Supervisory
work temporarily for a specified period, which cannot at any stretch of imagination be
said that he is not a Workman.
11. In the present case on hand, the parties have tendered evidence, which is not
the subject matter in this Writ Petition and therefore, all the issues can be tried together
in a composite manner. Merely because evidence had been taken, it does not mean that
Labour Court needs to render decision on that issue. The Labour Court has got powers
to try only two issues as preliminary one. Firstly, whether the Departmental
Proceedings is fair or not; Secondly, whether the settlement Under Section 18 (1) of the
Industrial Dispute Act 1947 entered is fair and acceptable and if so, whether an award
could be passed in terms of the said settlement. In case, the domestic enquiry that has
been conducted has been questioned by the Workman, the Management is entitled to get
an opportunity to lead fresh evidence to establish the charges, as has been laid down by
the Hon'ble Apex Court in the case of Workmen of M/s Firestone Tyre and Rubber
W.P.No.27712 of 2017
Co. of India (P) Ltd., Vs. The Management reported in 1973 (1) LLJ 278 provided that
they had taken a plea at the initial stage to that effect. In Shankar Chakravarti vs.
Britannia Biscuit Co. Ltd. and others, reported in (1979) 3 SCC 371, the Apex Court
held that there is no need for the Labour Court or Tribunal to remind the Management
as to what they should do and that there is no need to stall the proceedings on the
preliminary issue.
12. With great respect to the decision of the Hon'ble Supreme Court cited by the
learned counsel for the Management, reported in (2001) 7 SCC 394, I am unable to
follow the same, in the light of the judgments of the Hon'ble Supreme Court in
Padmasundara Rao (Dead) & others vs. State of Tamil Nadu and others, reported in
(2002) 3 SCC 533 and D.P.Maheswari Versus Delhi Administration and Others
reported in 1983 2 LLJ 425 and S.K.Verma Vs. Mahesh Chandra and Another
reported in 1983 2 LLJ 429 and more particularly in light of the decision of the
Honourable Supreme Court in the case of The General Manager Telecom Vs.
S.Srinivasa Rao and Others reported in 1997(8) (SCC) 767 that deals with the
principle of precedent.
13. In the light of aforesaid facts and circumstances of the case, I find no
perversity in the order passed by the Labour Court and no prejudice is going to be
caused to the Management, if the entire issues are altogether tried by the Labour Court.
W.P.No.27712 of 2017
This case is a classic example, as even after a lapse of 12 years, no final decision has
been arrived at and as rightly observed by the Apex Court, there is a general tendency in
existence where Managements adopt dilatory tactics for taking a decision.
14. In view of the afore-stated position, this Writ Petition is dismissed. The
Labour Court is directed to take up the Industrial Dispute along with other issues,
proceed with the same on merits without adjourning the matter beyond seven working
days at any point of time in terms of Rule 34 (9) of Tamil Nadu Industrial Disputes
Rules 1958, and pass an award on all issues on merits, if the matter is not settled
between the parties by means of a settlement Under Section 18(1) of the Industrial
Dispute Act, 1947. No costs. Consequently, connected Miscellaneous Petition is closed.
16.06.2021
Index: Yes / No
Speaking order /Non speaking order
arr
To:
The Presiding Officer,
Labour Court,
Coimbatore.
W.P.No.27712 of 2017
S.VAIDYANATHAN,J.,
arr
W.P.No.27712 of 2017
16.06.2021
W.P.No.27712 of 2017
