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Judgment
The Court : The petitioner is a company incorporated under the Companies Act, 1956 (hereinafter referred to as 'said Act'). This writ petition has been filed by the said company assailing the order dated January 15, 2016 passed by the learned Judge, 2nd Labour Court, Calcutta in Case No.13 of 2007 under Section 10-1B(D) of the Industrial Disputes Act, 1947. By the order impugned the application dated November 5, 2015 filed by the petitioner-company was rejected. By the said application dated November 5, 2015 the company made a prayer for rejection of the application/reference filed by the predecessor-in-interest of the respondent nos.3 to 7, namely, Devanand Singh, since deceased.
The contention before the learned tribunal made on behalf of the company was that the application before the tribunal having arisen as per the provisions of Section 2A of the Industrial Disputes Act, 1947 the same could not continue before the said tribunal at the instance of the respondent nos.3 to 7.
The background of the case is as follows:
Devanand Singh, since deceased, claiming to be a workman under the Company filed an application under Section 10(1-B)(D) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'said Act') before the learned Judge, 2nd Labour Court, Calcutta with the prayer that his termination of service by the company should be declared to be void ab initio and the company should be directed to reinstate the said workman by giving him regularity in service and awarding him full back wages with consequential reliefs and cost of litigation.
During the pendency of this application before the learned tribunal the applicant before the learned court below expired on 17th June, 2010. Thereafter, by an application the respondent nos.3 to 7 were sought to be substituted in the said proceeding. The learned court below passed an order allowing the substitution of the respondent nos.3 to 7 in the said proceeding before the said court. The order of substitution was assailed before this Court by way of filing of a writ petition being WP No.148 of 2012. By an order dated March 27, 2012 a learned Single Judge of this Court directed the learned Labour Court to bring on record the respondent nos.3 to 7 as the legal representatives of the Devanand Singh, since deceased and further observed that the claim of the respondent nos.3 to 7 who were substituted in the said proceeding before the learned Labour Court in place of the deceased Devanand Singh would be restricted only to the monetary relief which may have been prayed for by the deceased Devanand Singh and awarded.
Mr. Jaydeep Kar, learned Senior Advocate appearing on behalf of the petitioners, submits that from the written statement filed by the alleged workman it is clear that there were no evidence to show that he was actually engaged or appointed by the company. Further he submits that from the pleadings it was clear no written permission or order of termination had been issued by the company in favour of the deceased Devanand Singh and, as such, the claim of the deceased Devanand Singh to be a workman was not backed by any evidence. According to Mr. Kar, as the workman did not have any evidence to show that he was engaged by the company the proceeding under the said Act was not maintainable.
Mr. Kar draws the attention of this Court to the written statement filed on behalf of the company where the company had taken a specific point that there was no master-servant relationship between the predecessor-in-interest of the respondent nos.3 to 7 and the company. Mr. Kar submits that the issue as to whether the predecessor-in-interest of the respondent nos.3 to 7 the deceased Devanand Singh was a workman or not and whether the application was maintainable at the instance of said deceased Devanand Singh before the learned Labour Court should be decided first.
Mr. Kar also draws the attention of this Court to an order dated September 14, 2015 by which another learned Single Judge of this Court passed an order in WP No.1068 of 2015 directing the Labour Court to frame and proceed to try all issues together, but with a further direction that the learned Labour Court should return a positive finding with regard to the preliminary issue before deciding the other issues.
The learned advocate appearing on behalf of the respondent nos.3 to 7, submits that the learned tribunal had already framed the issue and all the issues should be tried together as per the direction of learned Single Judge of this Court dated September 14, 2015. He further submits that the question of deciding the preliminary issue prior to decision of the other issues in a piecemeal manner was not contemplated either under the Industrial Disputes Act or in the order of this Hon'ble Court.
I have heard the learned advocates appearing on behalf of the parties.
I do not agree with the proposition of the petitioner company that the reference was not maintainable at the instance of the respondent nos.3 to 7 before the Labour Court, in view of the order passed by this Court in WP No.148 of 2012. By the said order dated March 27, 2012 a learned Single Judge of this Court directed the Labour Court to substitute the heirs of the deceased Devanand Singh and continue the hearing of the matter.
Therefore, in my opinion, the application dated November 5, 2015 was rightly rejected by the learned Labour Court inasmuch as once a learned Single Judge of this Court had come to a finding that the proceeding before the learned tribunal would continue at the instance of the respondent nos.3 to 7 and had passed directions for substituting them, the reference or the proceeding under Section 10(1-B)(D) of the said Act would continue before the learned Labour Court at the instance of the substituted heirs and the relief would be limited to payment of monetary benefit claimed by the workman if the same was awarded by the learned Labour Court.
It is also found from the record that the company approached this Court with a prayer that the fundamental issue before the Labour Court was whether the predecessor-in-interest of the respondent nos.3 to 7 was a workman or not. The company prayed before this Court that the said issue should be decided as a preliminary issue. Another learned Single Judge of this Court after considering the submissions made on behalf of the petitioner as also the respondent nos.3 to 7 and considering the decision of the Apex Court in D.P. Maheshwari -versus- Delhi Admn. and Others reported in 1983 LAB I.C. 1629, came to a conclusion that all the issues should be decided together and the learned Labour Court upon considering the evidence on record should come to the finding as to whether the Predecessor-in-interest of the respondent nos.3 to 7 was a workman or not. WP No.1068 of 2015 was, thus, disposed of by a learned Single Judge with the following direction:
"In this case, the latter situation is applicable. Therefore, following the above decision of the Supreme Court, I direct the learned Labour Court to frame and proceed to try all the issues together but it should come to a positive finding with regard to the preliminary issue before deciding the other issues. This should be done in one single trial without breaking up the trial into many trials as the Supreme Court deprecated in the case above, as expeditiously as possible, within three months from date. The impugned order dated 9th April, 2015 is modified to the above extent."
I find from the order dated September 14, 2015 that this Court had directed the learned Judge in the Labour Court to frame and proceed to try all the issues together and come to a positive finding with regard to the preliminary issue as to whether the said deceased Devanand Singh was a workman or not along with the issues already framed by the learned tribunal. In my opinion, this issue should be decided as the first issue in terms of the order dated 14th September, 2015. It goes without saying that all the issues should be decided one after another upon taking the entire evidence on record. The apprehension of the respondent nos.3 to 7 that the petitioners are indirectly trying to break up the trial into many trials by seeking an order in this writ petition that the preliminary issue should be tried separately is unfounded. It is made clear that all the issues already framed by the learned Labour Court should be tried together with this issue, as the first issue, that is;:-
a) whether the deceased Devanand Singh was a workman under the company and whether the application before the learned Labour Court was maintainable against the company at the instance of the said deceased Devanand Singh.
The evidence with respect of all issues will be taken together and the judgment will be delivered on all the issues. It goes without saying that the point of maintainability of the application before the learned tribunal at the instance of the deceased Devanand Singh will have to be decided and unless the said issue is decided, the question of legality of the termination and question of reinstatement, back wages etc., cannot be gone into. All the issues will be decided and answered in a composite judgment after taking evidence on all the issues which have already been framed along with the above issue as the first issue.
With the above directions, WP No.425 of 2016 stands disposed of.
As this case is a very old one and the family of an alleged deceased workman has been looking for some monetary relief, the learned tribunal is requested to complete the hearing of the matter and dispose of the same within a period of two months from the date of communication of this order.