Enercon (India) Ltd. vs Kishor B. Patel and Others

R.M. Savant, J.—Since a narrow controversy is involved in the above petition, Rule, with the consent of the learned Counsel for the parties is made returnable forthwith and heard.

The order impugned is one dated 17.10.2012 passed by the learned Presiding Officer, Industrial Tribunal, Daman by which order the application dated 15.9.2012 filed by the petitioner herein i.e., Exhibit 1 for deciding the preliminary issue as to whether the 11 workmen, who have raised the demand have the locus standi to represent the workmen of the Petitioner-Company came to be disposed of by observing that the application for interim relief filed in the said Reference could be taken up first. The Reference in question has arisen out of the charter of demands raised by the said 11 workmen purportedly on behalf of the other workmen whom they claimed to represent. The matter had been referred to the Industrial Tribunal in view of the failure of the conciliation proceedings. The order of the Reference contains the demand which has been referred to for adjudication. The terms of Reference are contained in the third schedule of the said order dated 23.7.2012. The third schedule inter alia reads as under:

Classification by Grades: (a) Charter of Demand (b) Memorandum of settlement.

The Petitioner-Company has workmen employed at different sites. The Petitioner-Company declared a Revision in wages by a Circular dated 3.5.2012. The said Circular exemplifies the settlement between the workmen and the Petitioner-Company. The said settlement purports to be a settlement between the workmen and the Petitioner-Company. It seems that about 875 workmen at one particular site have voluntarily accepted and signed the settlement. Similarly, 1079 workmen at Daman, out of them 555 workmen have voluntarily signed and accepted the settlement. It seems that the benefits of the said settlement are being given to the workmen who have accepted and signed the settlement and the same is to operate from 1.4.2012 to 31.3.2017. It seems that 11 workmen claim to be the representatives of the workmen. The workmen have submitted charter of demands which are in the nature of general demands. The said charter demands are disclosed in the failure report of the Conciliation Officer.

It is the case of the said 11 workmen that they are the elected workmen of the Petitioner-Company and that they do not agree with the long term settlement which was declared by the Management and that they have informed the Management that their charter of demands should be included in the settlement. It is further their case that the settlement has been arrived at by the Petitioner-Company unilaterally without involving them in any discussion etc. As indicated above, the matter was in conciliation and on the failure report of the Conciliation Officer that the dispute has been referred for adjudication to the Central Government Industrial Tribunal, Daman.

In the said Reference, which has been numbered as Reference IT No. 27/2012, an application for interim relief was filed by the said 11 workmen. The interim relief claimed was that that they should be granted an interim wages increase of Rs. 6,500/- per month. In the said Reference, an application was moved by the Petitioner-Company questioning the locus standi of the 11 workmen to represent the other workmen of the Petitioner-Company. It is the case of the Petitioner-Company that the 11 workmen are not the authorized representatives of other workmen inasmuch as they have not been so elected by the workmen. The Petitioner-Company applied to the Tribunal that its application for deciding the preliminary issue as regards the locus standi of the said 11 workmen should be heard prior in point of time to the application for the interim reliefs. In support of its application, the Petitioner-Company has relied upon various judgments of this Court as well as the Apex Court that when a jurisdictional point is raised, the same ought to be tried at the threshold. The Tribunal, as can be seen from the impugned order, has in a way disposed of the said application of the Petitioner-Company by observing that since the issue is about the survival of the workmen, the application for interim relief would have to be decided first.

The Tribunal sought to distinguish the judgments which were cited before it by observing that since a large number of workmen questioned the alleged unilateral settlement, there is a dispute and therefore, the interim relief application filed by the said 11 workmen ought to be decided in the first instance. In contending that the 11 workmen do not have the locus standi to represent the other workmen and therefore the Reference is not maintainable, the Petitioner-Company has raised a jurisdictional issue. Though the learned Counsel appearing for the Respondent No. 1 Miss. Cox would contend that once the Reference has been made, the Tribunal is bereft of the powers to try the issue of locus standi, in my view, the said contention cannot be accepted. It is well settled that the order making a Reference is an administrative order and at that stage the merits of the respective cases is not gone into. It is therefore, the Tribunal, which undoubtedly has to address the jurisdictional issue which has been raised before it and thereafter embark upon the exercise of considering the application for interim relief. The decision on the jurisdictional issue would therefore determine whether the Tribunal has the jurisdiction to decide the Reference in question, moreso, in the instant case when it is at the behest of the 11 workmen whose authority to represent the other workmen is in question.

In my view therefore the Tribunal has committed an error by observing that since the question of survival of the workmen is concerned, it would try the interim relief application before the issue of the locus standi of the 11 workmen is decided, the impugned order therefore cannot be sustained. The Tribunal ought to first consider the application filed by the Petitioner-Company questioning the authority of the 11 workmen to represent the other workmen of the Petitioner-Company and thereafter decide the application for interim relief. In my view therefore the impugned order is required to be quashed and set aside and is accordingly quashed and set aside and the following directions are issued:

(i) The Tribunal is directed to decide the application filed by the Petitioner-Company raising the preliminary issue as regards the locus standi of the 11 workmen at the first instance.

(ii) The application for interim relief filed by the 11 workmen to be taken up immediately after the decision is rendered on the said issue.

(iii) The contentions of the parties are expressly kept open for being urged before the Tribunal.

(iv) The parties to appear before the Tribunal on 11.2.2013 and the Tribunal to decide the application filed by the Petitioner-Company, within eight weeks thereafter. The parties would be at liberty to lead both oral and documentary evidence. Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs.