Shri. Aniruddh Kumar Dhaniram Upadhyay vs M/s. Emeresons Process Management (India) Pvt. Ltd.

i.

Revision Application (ULP) No. 18 of 2021, is hereby Partly Allowed.

ii.

The Impugned Order dated 29-02-2020 passed by the Ld. First Labour Court, Thane in the Complaint (ULP) No. -128 of 2013, Below Application Exh. U-18 is hereby quashed and Set Aside and the Matter is remanded to the Ld. First Labour Court, Thane.

iii.

Ld. Labour Court to decide the issue of 'Workman' Firstly as Preliminary Issues, and if the parties so desire, to allow the parties to adduce evidence in support of their respective contentions, limited to the Issue Of Workman.

iv.

Parties to appear before the Ld. First Labour Court, Thane on 28-06-2023.

v.

In case, the Ld. Labour Court holds Complainant Employee to be the 'Workman' and the Complaint is found to be Maintainable, then the Revision Petitioner i.e. Respondent Employer shall be at liberty to Challenge the Order on issue of 'Workman' and also the Order on Part-I Judgment, dated 22-02-2021.

vi.

In case, the Complainant Employee is Not Found to be the 'Workman' and Complaint is Not Found to be Maintainable, then the Order dated 22-02-2021, Judgment on Part-1 will automatically cease to exist.

vii.

No Orders as to Costs.

viii.

R & P of Complaint (ULP) No.- 128 of 2013 be sent back to the First Labour Court, Thane along with Copy of this Order.

1.

Whether the complainant proves that he is a workman as per Sec.2(s) of the Industrial Disputes Act, and as per Sec. 3(5) of the MRTU & PULP Act?

2.

Whether the complainant prove that the enquiry conducted by the respondent was held in utter disregard of principles of natural justices?

3.

Whether the findings drawn by the Enquiry Officer are perverse?

4.

Whether the respondent justify its action before the court?

5.

Whether the punishment is shockingly disproportionate to the proved misconduct?

6.

Whether the complainant is entitled for relief claimed?

7.

What order?

First three issues are treated as preliminary issues.

10.

I find that the Hon'ble Supreme Court have laid down the principal that all issues should be Decided Together. However, I find that in the case of D. P. Maheshwari, there was No Situation of Deciding the issue of Inquiry as a Preliminary Issue. In view the law laid down by the Hon'ble Bombay High Court, the issue of Inquiry has to be decided as a Preliminary Issue. However, I am of the view that in the matters, wherein the issue of Inquiry is involved along with the issue of Jurisdiction, i.e. the issue like that of 'Workman' (Section 2 (s) of the Industrial Disputes Act, 1947) or the issue of 'Industry' (Section 2 (j) of the I. D. Act) is involved, in such matter, it is necessary to first decide the issue of Jurisdiction i.e. the issue of 'Workman', issue of 'Industry', Etc. Because while dealing the matter on Merit, the Ld. Labour Court should have ascertained itself, whether the Complainant Employee is a 'Workman' Or Not and after deciding the issue of 'Workman', the Ld. Labour Court could have proceeded to decide the issue of Fairness of Inquiry and Findings of Inquiry Officer, in case the Complainant is found to be a 'Workman' and Complaint is found to be Maintainable.

12.

With due respect to the ratio laid down by the with Hon'ble Bombay High Court and Hon'ble Supreme Court, in the Authorities cited Supra, I am of the view that even if the Hon'ble Supreme Court have directed to decide all issues together (D. P. Maheshwari's case), yet, in the matters wherein the issue of Inquiry and issue of Jurisdiction is involved, the Ld. Labour Court should have First Decided the issue of Jurisdiction i.e. the issue of 'Workman' as a Preliminary Issue. Thereafter, the issue of Inquiry should have been decided, in case the Complaint is found to be maintainable or at the most, the Ld. Labour Court could have decided all the three issues together.

1.

It was just the other day [See (1983) 4 SCC 214] that we were bemoaning the unbecoming devices adopted by certain employers to avoid decision of industrial disputes on merits. We noticed how they would raise various preliminary 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, sometimes for over a decade. Industrial peace, one presumes, hangs in the balance in the meanwhile. We have now before us a case where a dispute originating in 1969 and referred for adjudication by the Government to the Labour Court in 1970 is still at the stage of decision on a preliminary objection. 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 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 nor the jurisdiction of this 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. Article 226 and Article 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 and journeyings up and down. It is also worthwhile remembering that the nature of the jurisdiction under Article 226 is supervisory and not appellate while that under Article 136 is preliminary 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.

75.

In our considered opinion, in the present case, it cannot be said that the courts below have committed any error of jurisdic-tion in not deciding the issue as to the maintainability of claim petitions as preliminary issue. It is well settled that generally, all issues arising in a suit or proceeding should be tried together and a judgment should be pronounced on those issues. Before more than hundred years, the Privy Council in Tarakant Bannerjee v. Pud-domoney Dossee [(1866) 10 Moo IA 476] favoured this approach. Speak-ing for the Judicial Committee, Lord Turner stated: (Moo IA p. 488)

“… The courts below, in appealable cases, by forbearing from decid-ing on all the issues joined, not infrequently oblige this Committee to recommend that a cause be remanded which might otherwise be finally decided on appeal. This is certainly a serious evil to the par-ties litigant, as it may involve the expense of a second appeal as well as that of another hearing below. It is much to be desired, therefore, that in appealable cases the courts below should, as far as may be practicable, pronounce their opinions on all the important points.”

The above principle has been consistently followed.

76.

This Court dealing with the provisions of Order 14 Rule 2 (prior to the Amendment Act of 1976) in Major S.S. Khanna v. Brig. F.J. Dillon [AIR 1964 SC 497 : (1964) 4 SCR 409] stated: (AIR pp. 502-03, para 18)

“18.

… Under Order 14 Rule 2, Code of Civil Procedure, where issues both of law and of fact arise in the same suit, and the court is of the opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the court the whole suit may be dis-posed of on the issues of law alone, but the Code confers no juris-diction upon the court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the court; not to do so, especially when the decision on is-sues even of law depend upon the decision of issues of fact, would result in a lopsided trial of the suit.”

77.

The Law Commission also considered the question and did not favour the tendency of deciding some issues as preliminary issues. Dealing with Rule 2 of Order 14 (before the amendment), the Commission stated:

“This Rule has led to one difficulty. Where a case can be disposed of on a preliminary point (issue) of law, often the courts do not inquire into the merits, with the result that when, on an appeal against the finding on the preliminary issue, the decision of the court on that issue is reversed, the case has to be remanded to the court of first instance for trial on the other issues. This causes delay. It is consid-ered that this delay should be eliminated, by providing that a court must give judgment on all issues, excepting, of course, where the court finds that it has no jurisdiction or where the suit is barred by any law for the time being in force.”

78.

Apart from the fact that the provisions of the Code do not stricto sensu apply to “industrial adjudication”, even under the Code, after the Amendment Act, 1976, the normal rule is to decide all the issues together in a civil suit.

4.

The question, therefore, arises for consideration is whether the issue of status of employees as workmen needs to be decided as a preliminary issue or such issue needs to be decided along with all other issues.

8.

In so far as the judgment relied upon by the respondent in Hussan Mithu Mhasvadkar (supra), the Apex Court was not considering an issue as to whether a particular issue needs to be decided as a preliminary issue or all the issues need to be decided along with all other issues. In the facts of said case, considering nature of dispute involved in the said case, the Apex Court observed that instead of embarking upon an adjudication in the first instance as to whether the respondent is an industry or not so as to attract the provisions of the Industrial Disputes Act, it 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 and industry or not. On careful perusal of paragraph 5, it is evident that the observations made were restricted in the facts of the said case and no legal proposition of law is laid down by the Apex Court. Moreover, the judgment in Ramesh Chandra Sankla (supra) and D.P. Maheshwari (supra), the Apex Court was concerned with framing of preliminary issue. It is also important to note that the judgment in D.P. Maheshwari (supra) has been delivered by three Judges of the Apex Court and the judgment in the case of Hussan Mithu Mhasvadkar (supra) has been delivered by two Judges of the Apex Court. Hence, the view taken by three Judges of the Apex Court bind this court.

9.

In so far as the judgment of learned Single Judge of this Court in Siemens Ltd. (supra) is concerned, this Court has not taken into consideration the judgment in D.P. Maheshwari (supra) or Ramesh Chandra Sankla (supra) and, therefore, the judgment will not support the respondent.

10.

In my view, therefore, the issue framed by the Industrial Court by the impugned order needs to be decided along with all other issues.

15.

In the case of D.P. Maheshwari (supra) is pressed into service by learned Senior Advocate appearing on behalf of the Appellant in support of the submission that the Labour Court ought not to have given the decision only on preliminary issue and ought to have disposed of all the issues, whether preliminary or otherwise at the same time. On facts the said decision is not applicable to the facts of the case on hand. In the aforesaid decision no absolute proposition of law was laid down by this Court that even the issue touching the jurisdiction of the court cannot be decided by the court as a preliminary issue and the court has to dispose of all the issues, whether preliminary or otherwise, at the same time. When the issue touches the question of territorial jurisdiction, as far as possible the same shall have to be decided first as preliminary issue. Therefore, in the present case, the Labour Court did not commit any error in deciding the issue with respect to the territorial jurisdiction as a preliminary issue in the first instance.

8)

Reliance by Mr. Shukla on judgment of V.G. Jagdishan (supra) does not cut any ice. In that case, the issue was with regard to territorial jurisdiction. The workman therein was working as driver at Ghaziabad, whose services were also terminated at Ghaziabad. The workman thereafter shifted to Delhi and filed a claim before Conciliation Officer at Delhi. The dispute was referred to Labour Court at Delhi and the management raised preliminary objection of territorial jurisdiction of Labour Court at Delhi. In the light of above peculiar fact situation, the Supreme Court has made following observations in paragraph 15 of the judgment:-xxx

9)

Thus, in V.G. Jagdishan the Apex Court has held that the issue of territorial jurisdiction can be decided as a preliminary issue notwithstanding the ratio of the judgment in D.P. Maheshwari. In the present case, what Petitioner desired is determination of issue of status of the Respondent as ‘workman’ as preliminary issue. As held in D.P. Maheshwari and Ramesh Chandra Sankla the said issue cannot be decided in a piecemeal manner with a view to avoid delay in decision of the reference. In the present case, the Petitioner has taken a risk of terminating the services of the Respondent on the ground that she is not a ‘workman’. If the issue of her status is decided as preliminary issue, the aggrieved party will challenge the decision on the issue of status before higher fora. This would delay decision on main issue relating to validity of termination. Therefore, it would be appropriate to avoid multiplicity of litigation and decide all the issues together.

9)

Also, considering the peculiar facts and circumstances of the present case, I am not inclined to interfere in the impugned Award only on the ground that it decided the issue of status as a preliminary issue. In the present case, the Labour Court decided to try Issue No.1 as preliminary issue by order dated 3 January 2025. The order was passed on application preferred by the Respondent. There is nothing on record to suggest that the Petitioner opposed the said application relying on judgments of the Apex Court in D. P. Maheshwari or Ramesh Chandra Sankla. She permitted the Labour Court to pass order dated 3 January 2025. The Petitioner also did not challenge the order dated 3 January 2025 nor protested against the same and acquiesced in the same. After passing of order dated 3 January 2025, Petitioner participated in the further proceedings. She allowed the Labour Court to decide the issue of status as a preliminary issue. By that time, the evidence of the Petitioner was already on record. There was ample material available before the Labour Court to make adjudication of issue of status. Accordingly, the Labour Court proceeded with the enquiry into the issue of status. Petitioner’s advocate advanced arguments on the issue of status. She took a calculated chance of inviting decision on the preliminary issue of status. It is only after the preliminary issue got decided against her that she has turned around and has assailed the Award dated 28 October 2025 contending that the issue of status could not have been tried as a preliminary issue. Considering this peculiar conduct of the Petitioner, I am not inclined to set aside the impugned award only on the ground that the same decides the issue of status as a preliminary issue.

10)

It is also seen that in peculiar facts and circumstances of the present case, once Petitioner is held to be not a workman, nothing really survives to be adjudicated in the Reference. In that view, participation by the Petitioner in the enquiry into the status has resulted in final outcome of the Reference. Petitioner was aware of this position, and this appears to be the reason why she participated in the enquiry into the status without any demur. Now that the outcome of enquiry is not favourable to her, she has turned around and has questioned the propriety in deciding the issue of status as a preliminary issue. This is yet another reason why this Court is not inclined to interfere in the impugned Award only because a preliminary issue was taken up for decision by the Labour Court.

21.

It is now trite that the issue as to whether an employee answers the description of a workman or not has to be determined on the basis of a conclusive evidence. The said question, thus, would require full consideration of all aspects of the matter.

22.

The jurisdiction of the Industrial Court to make an award in the dispute would depend upon a finding as to whether the concerned employee is a workman or not. When such an issue is raised, the same being a jurisdictional one, the findings of the Labour Court in that behalf would be subject to judicial review.

11.

In the present case, it is abundantly clear that there has been no effort on the part of the management in either delaying or protracting the proceedings in the courts below. On the other hand, the finding which has been recorded by the Labour Court is that it was the petitioner who had protracted the conduct of the proceedings. The facts show that several adjournments were sought on behalf of the petitioner, in fact, 30 of them as recorded by the employer in the application dated 18th June, 1996. When the employer moved for the dismissal of the application under section 33-C(2) on the ground that the petitioner was not diligent in conducting the proceedings, it was the petitioner who submitted that the employer must lead evidence first since the issue as to whether he is a workman must be decided as a preliminary issue. The order of the Labour Court dated 19th November, 1998 framing a preliminary issue was not challenged and was acted upon. The witnesses of the employer were cross-examined by the petitioner. It is only after the petitioner's turn came to lead his evidence, that an application was filed to the effect that all issues should be decided together. In the circumstances, I am of the view that the interference of this Court is not called for under Article 226 of the Constitution having regard to the conduct of the petitioner and the circumstances which have been adverted to above.