Erraniel Sarvodya Sangam vs The Assistant Commissioner of Labour and C. Rameswaran

K. Chandru, J.—The Petitioner is the Sarvodya Sangam, at Eraniel, Neyyoor, Kanyakumari District. They have come forward to challenge the Notice issued by the First Respondent, the Assistant Commissioner of Labour, Tirunelveli.

When the matter came up on 29.6.2010, the Writ Petition was admitted. Pending the Writ Petition, an interim stay was granted. Subsequently, the Respondent had engaged a Counsel and also filed a Vacate Stay Application in M.P.(MD) No. 2 of 2010, supported by a Counter Affidavit dated 17.8.2010. The Writ is in the nature of Prohibition and seeks to question the jurisdiction of the First Respondent in entertaining the Claim Petition from the Second Respondent claiming Subsistence Allowance on the ground that he was placed under suspension.

The Second Respondent was employed by the Petitioner-Association and in view of the certain alleged irregularities, a Criminal case was also registered against him in Crime No. 5 of 2005, under Sections 408 r/w 420 of I.P.C. He was also placed under suspension on 20.12.2003. Since he was not paid any allowance, he filed an Application claiming Subsistence Allowance for the period from 20.12.2003 to 19.12.2005. The said Application was numbered as P.S.A. No. 16/2005 and notice was served on the Petitioner. For the subsequent period from 18.12.2005 to 1.3.2006, he filed another Application being P.S.A. No. 7/2007, claiming Subsistence Allowance. Since the Petitioner terminated the service of the Second Respondent, he has also raised a dispute and the same is pending adjudication by the Labour Court, Tirunelveli, as I.D.O.P. No. 90 of 2006.

When the Notice was received on this Application, the Petitioner Sangam has filed a reply dated 6.6.2005, in P.S.A. No. 16 of 2005. They have contended that the Second Respondent is not eligible for any allowance for various factors. The very fact that the Petitioner has filed a Counter before the Authority, a Writ in the nature of Prohibition, certainly, is not maintainable, since the contention raised therein are entitled to be gone into by the Authority. The Authority, who is entitled to go into the claim made u/s 3, can also decide the other incidental issues including whether the Second Respondent is a ''Workman'' within the meaning of the Act and also whether the employee-employer relationship exists between him and the Petitioner-Sangam.

With reference to the contention that the Second Respondent is a member of the Sangam and simultaneously he cannot be treated as workman. It is to be noted that the Division Bench of this Court in Workman and Salem Cooperative Motor Society for Ex-Serviceman Ltd. v. Government of Tamil Nadu and Anr. 1974 (2) LLJ 385 (Madras-DB), has held that even if a person is a member of the Society, he can engage himself in the capacity of workman and he can raise the dispute against the said Society. His share holding in the Society will not make him an employer. The Court also emphasized that once the Society is registered as Corporate entity then it is a distinct entity by itself. Therefore, the question of a person employed being treated as part of the Management will not arise.

In any event, the real status of the Second Respondent can be gone into on evidence let in before the Authority. Since the Petitioner Society filed a Counter before the First Respondent it is incumbent upon them to lead appropriate evidence. Certainly, when an issue is a triable issue before a Statutory Authority, based upon factual materials being let in, the question of issuance of Writ of Prohibition will not arise and there is no clutching on to a jurisdiction by a Statutory Authority. Further, time and again, the Supreme Court has emphasized that a mere nomenclature will not be the final determination of the status of a person and it has to be decided only on a factual foundation being laid. The question whether a person is an employee covered by a particular Labour Enactment, is not a mere question of law but also a question based upon the factual materials being gathered before the Appropriate Authority.

As to the desirability of entertaining the Writ Petition at the interlocutory stage came to be considered by the Supreme Court in more than one judgment. The Supreme Court in D.P. Maheshwari Vs. Delhi Administration and Others, , in paragraph 1 observed as follows:

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 raised various preliminary objections, invite decision on those 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, some times for over a decade.

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 Tribunal so that a preliminary issue may be decided, by them. Neither the jurisdiction of a High Court under Article 226 of the Constitution nor the Jurisdiction of this Court under Article 136 may be allowed to exploited by those who can well 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 land Article 136 are not meant to be used to break the resistance of the 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 and journeyings up and down. It is also worthwhile remembering that the nature of the jurisdiction under Article 226 is supervisory and nor. Appellant 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.

In view of the above, this Court is not inclined to entertain the Writ Petition and thwart the attempt of the Second Respondent in claiming his Subsistence Allowance Hence, the Writ Petition stands dismissed. Consequently, the connected Miscellaneous Petitions also stand dismissed.