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Judgment
Honourable Mr. Justice K. Chandru
In all these writ petitions, the petitioner is the management, has come forward to challenge the common order passed by the Labour Court, dated 13.06.2011 in I.D.Nos. 25, 26, 27, and 28 of 2010. By the impugned order, the Labour Court held that the dispute raised by the contesting respondent workmen u/s 2A of the Industrial Disputes Act, is maintainable as an industrial dispute and rejected the preliminary objection raised by the management. Challenging the preliminary order, even during the pendency of that issue, the writ petitions came to be filed.
When the matter came up on 06.09.2011, this Court gave an interim direction not to proceed further beyond examination of the witnesses. The writ petitions are yet to be admitted and notice are yet to be served on the respondents.
It is seen from the records produced by the petitioner that the contesting respondents were appointed by the petitioner textile mill on probation on various dates. Subsequently, it transpires that on 17.02.2009, they have transferred from Nanguneri mills to Guntur in Andhra Pradesh, Kolkatta, Adilabad at Karnataka and Gujarat States, to work under some private traders. The workmen did not report for duty at the transferred places. On the contrary, they raised a dispute u/s 2A(2) of the Industrial Disputes Act alleging that the transfer is far away places without having any authority to different companies amounting to termination of service and they are not entitled for joining for new places and therefore, it cannot be presumed that they were not non employed from the date of transfer namely, 17.02.2009.
The dispute raised before the Labour Officer, Tirunelveli who initiated conciliation proceedings where the management filed a counter statement stating that the standing order provides for transfer and hence, it is not a case of non employment and the dispute is not maintainable u/s 2A of the Industrial Disputes Act.
The Conciliation Officer as he could not bring out mediation filed a failure report, dated 07.05.2010. On the strength of the failure report each of the workmen filed a claim statement before the Labour Court. The dispute raised by the workmen was registered as different I.D.Nos. 25, 26, 27, and 28 of 2010 and notice was ordered to the petitioner mills. They have also filed a writ petition before this Court challenging the failure report, dated 07.05.2010 given by the Conciliation Officer, Tirunelveli in respect of the cases relating to the industrial dispute raised by M.Sekar, the third respondent in W.P.(MD)No.9980 of 2011 raising a similar contention.
This Court held that there was no case made out to set aside the failure report given by the Conciliation Officer u/s 12(4) of the Industrial Disputes Act and there was no infirmity in the report given by him and if the management desires, they can raise appropriate issue before the Labour Court. It is on the strength of the said observation, in the last paragraph of the counter statement namely at paragraph No.24, they have raised a preliminary issue stating that the issue regarding the maintainability of the industrial dispute which should be determined by the Labour Court as a preliminary issue. The very statement that this Court gave any direction for the Labour Court to determine such issue which itself is a doubtful because of that this Court while disposing of the writ petition on 08.07.2010 at paragraph 7 observed as follows:
7.....If the second respondent is raising industrial dispute on the basis of the failure report of the first respondent and if according to the petitioner that such dispute cannot be raised as an industrial dispute, it is open to the petitioner to challenge the same when the dispute is taken cognizance of by the Labour Court.
However, the Labour Court believing the stand of the management that there was a direction given by this Court to frame a preliminary issue proceeded to hear the parties on the said preliminary issue. Before the Labour Court, 20 documents were filed and marked as Exs.M-1 to M-20 and the matter was argued at length before the Labour Court. The Labour Court held that the management in having transferred the workers to far off places, without having any authority and even being daily paid workers and not knowing the language of the said States, it is a clear case of non employment and therefore, the dispute is maintainable u/s 2A of the Industrial Disputes Act and posted the case for further hearing.
It is, at this stage, the management has rushed to this Court with the above writ petitions.
The contention raised by the management in the affidavit was that it was a wrongful jurisdiction to exercise by the Labour Court and the dispute is not maintainable u/s 2A of the Industrial Disputes Act. The management was having power under Standing Order 26 for transferring the workmen and since the workmen have disobeyed the lawful orders and they did not join at the transferred places. However, this Court is not inclined to deal with the preliminary order passed by the Labour Court. The Labour Court is entitled to decide all issues comprehensively and it is unnecessary to decide any particular issue as the issue is raised only preliminary issue. In the present case, the workmen have filed a claim statement on the strength of the failure report given by the Conciliation Officer and such a dispute filed u/s 2A has to be necessarily tried by the Labour Court in respect of all the issues that may be raised before the Labour Court. The Labour Court need not try any case as a preliminary issue and even assuming that there was such a determination, there is no cause of action for the management to rush to this Court challenging the said preliminary issue.
In this context, it is necessary to refer the judgment of the Hon''ble Supreme Court in The Cooper Engineering Limited Vs. Shri P.P. Mundhe, wherein it has been held as follows:
We are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the Labour Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer, there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the labour court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue. We should also make it clear that there will be no justificationfor any party to stall the final adjudication ofthe dispute by the Labour Court by questioning itsdecision with regard to the preliminary issue whenthe matter, if worthy, can be agitated even afterthe final award. It will be also legitimate forthe High Court to refuse to intervene at thisstage. We are making these observations in ouranxiety that there is no undue delay in industrialadjudication.
23.In the present case, however, besidesthe long delay that has taken place, since the lawlaid down by this Court was not very clear at thetime of the award in casting a duty upon theLabour Court decide the preliminary issue and alsoin view of the submission of the appellant that itis prepared to pay the entire salary of theworkman uptodate, it will meet the interest ofjustice if the order of reinstatement is convertedto one of compensation in terms of his entiresalary from the date of dismissal to the date ofthis decision except for what has already beenpaid to him instead of remitting the matter to theLabour Court for in the light of this judgment bysetting aside the award.
Yet another case in D.P. Maheshwari Vs. Delhi Administration and Others, , the Hon''ble Supreme Court has held 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 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 beexploited by those who can well afford to wait tothe detriment of those who can ill afford to waitby dragging the latter from court to court foradjudication of peripheral issues, avoidingdecision on issues more vital to them. Article 226and Article 136 are not meant to be used to breakthe resistance of workmen in this fashion.Tribunals and courts who are requested to decidepreliminary questions must therefore ask themselves whether such threshold part-adjudication is really necessary and whether it will not lead to otherwoeful consequences. After all tribunals likeIndustrial Tribunals are constituted to decideexpeditiously 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 worth while remembering that the nature of the jurisdiction under Article 226 is supervisory and not appellate 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 such circumstances, it is wrong on the part of the management to have challenged the preliminary order. It is always open to them to challenge a final Award as and when any adverse award is passed against them by the Labour Court. This Court is not inclined to entertain these writ petitions and hence, all the writ petitions stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed.