Tube Products Employees Union vs Management of Tube Products of India and another

The above writ appeal has been filed against the order of a learned single Judge of this Court, dated August 7, 1992, in W.P. No. 14593 of

1990, whereunder the learned single Judge, while allowing the writ petition filed by the first respondent management, quashed the interim award

passed by the second respondent-Labour Court, dated March 30, 1990, in I.D. No. 12 of 1981.

2 . The second respondent in the writ petition, whose cause is now espoused in this writ appeal by the Tube Products Employees'' Union

represented by its Secretary, was an employee of the first respondent - management come February 11, 1964. On receipt of as complaint against

the said employee from one M.R. M. Sivalingam, Senior Engineer (Tool Room), to the effect that he misbehaved with him on November 5, 1977,

at about 12 noon, the employee was said to have been placed under suspension on November 7, 1977, and a charge memo was also said to have

been issued. A domestic enquiry was said to have been conducted after obtaining his explanation dated November 8, 1977, and the enquiry

officer seems to have submitted a report dated March 20, 1978. Thereupon, the employee was dismissed from service by an order dated March

23, 1978. Aggrieved when the worker moved for raising a dispute seeking for reference of the question of his non-employment, the Government

appears to have initially rejected the request. Thereafter, the employee appears to have filed a reconsideration petition and at that stage the non-

employment of the employee was referred to the second respondent herein and entertained as I.D. No. 12 of 1981. The first respondent -

management seems to have filed W.P. No. 2539 of 1981 before this Court, challenging the order of reference and by an order dated October 3,

1985, the writ petition came to be dismissed and the Labour Court was directed to dispose of the industrial dispute.

During the trial of I.D. No. 12 of 1981, a preliminary issue appears to have been raised and formulated for consideration, viz., the legality and

validity of the domestic enquiry. Though the domestic enquiry was challenged on several grounds, one such, ground appears to be based on the

reason of non-payment of the subsistence allowance and, therefore, conducted in violation of the principles of natural justice. Relying upon the

decision in Motor Industries Co. Ltd. v. Additional Labour Court, 1988 72 FJR 448, of the learned single Judge of the Karnataka High Court,

which, in turn, purported to follow and apply the principles laid down by the Supreme Court in the decision in Fakirbhai Fulabhai Solanki Vs.

Presiding Officer and Another, ; Ghanshamdas Srivastava Vs. State of Madhya Pradesh, , and V.P. Gidroniya Vs. The State of Madhya Pradesh

and Another, , the second respondent-Labour Court held by its preliminary order dated March 30, 1990, that the domestic enquiry conducted

stood vitiated and consequently, directed the main matter to be called on May 26, 1990, for further proceedings and course of action.

Felt aggrieved against the said preliminary order dated March 30, 1990, the first respondent-management filed W.P. No. 14593 of 1990 to

quash the same. The learned single Judge on a consideration of the submissions of learned counsel appearing on either side, by his order dated

August 7, 1992, allowed the writ petition and quashed that preliminary order while giving certain consequential directions. The learned single Judge

was of the view that the writ petition was not maintainable even against an interim order and since there is no total impediment from entertaining the

same, that the employee question has effectively participated in the enquiry without any difficulty and, therefore, the non-payment of the subsistence

allowance did not vitiate the domestic enquiry, particularly in view of the fact that the Standing Orders, which are statutory in character do not

provide for any such payment of subsistence allowance.

Hence, the above appeal by the workers'' union of which the employee in question was a member, indisputably, Mr. T. Fenn Walter, while

inviting my attention to the decisions even referred to before and relied upon by the Presiding Officer of the second respondent-Labour Court,

contended that the reasons assigned by the learned single Judge to set aside the preliminary order and allowing the writ petition filed by the

management are not in accordance with law and consequently, the writ appeal is liable to be allowed. Argued learned counsel further that the

factum of non-payment of subsistence allowance during the period of suspension pending enquiry into charges framed against the employee, per

se, constituted violation of the principles of natural justice and no further damage or prejudice need be specially substantitated. Finally, it was also

submitted that the writ petition at this stage is not only premature but also inappropriate and ought to have been dismissed as not maintainable and

the plea of the management to the contrary is not sustainable in law.

Per contra, Mr. N. Balasubramanian, learned counsel for the first respondent - management, while adopting the reasons assigned by the learned

single Judge and reiterating the stand taken before the second respondent-Labour Court, contended that the employee in question neither made a

grievance about the non-payment nor asserted a claim for the payment of subsistence allowance and, on the other hand, had participated

effectively in the domestic enquiry cross-examining the witnesses also and at no time any denial of the principles of natural justice or any discomfort

and inability to contest the case before the domestic enquiry was made at the time of the enquiry and consequently, there are no merits whatsoever

in the grievance sought to be made later and which was sustained by the second respondent-Labour Court. While once again reiterating the stand

taken before the Tribunal below, it was contended that the Standing Orders governing the employees of the management do not contain any

provision for payment of such subsistence allowance and the Tamil Nadu Payment of Subsistence Allowance Act, 1981, came into force long after

the order of dismissal came to be passed and, therefore, in the absence of any mandatory objections to pay subsistence allowance no grievance

against the domestic enquiry could be made particularly when there is no proof of any actual prejudice, if any, caused on account of the non-

payment. Argued learned counsel further that there is no hard and fast rule in invoking the jurisdiction of this Court under Article 226 of the

Constitution of India and inasmuch as by virtue of the preliminary order passed by the Labour Court. The rights of management has been seriously

prejudiced, there is no impediment for this Court entertaining a writ petition even at this stage notwithstanding the fact that it is open to the

management to challenge the same even after the final award is passed.

Both learned counsel appearing on either side have adverted to some of the judicial pronouncements of the Apex Court and this court in support

of their respective stand and the same may be usefully referred to before actually deciding the points raised for our considerations. Strong reliance

was placed for the appellant on the decision in Motor Industries Co. Ltd. v. Additional Labour, Court, (Supra), which though is of a decision

rendered by the learned single Judge of the Karnataka High Court, is based upon the principles laid down by the Supreme Court, wherein it was

held that non-payment of allowance to a workman during an enquiry either subsistence allowance or his full wages should be considered ipso facto

fatal to the enquiry on the principle that a starting workman cannot defend himself. That was also a case where such a view was taken inspite of the

factual position, as in this case, that the Standing Orders applicable to the management did not provide for payment of subsistence allowance. The

decision in Management of Engine Valves Ltd. v. Presiding Officer 1996 1 LLJ 566 was also a case wherein the Industrial Tribunal having held

that the management had not conducted the domestic enquiry properly asked the management to lead evidence before it to prove charges. When

the management moved this Court under Article 226 to challenge such a, preliminary order as in this case, both the learned single Judge and a

Division Bench of this Court held that the Court does not interfere at that stage and at any rate that does not in any way affect the right of the

management to challenge the validity of the order in the event it becomes necessary to challenge the award. The Division Bench also followed in

the said case an earlier decision rendered by them, in N. Gurumurthy v. Second Additional Labour Court 1995 1 LLJ 1022, holding that the

findings recorded by the Labour Court presided over by the judicial officers of the rank of District Judges, on preliminary issues such as whether

the domestic enquiry has been fair or proper or the Labour Court has jurisdiction to entertain the dispute or whether a person claiming the status as

a workman is a workman or not should not be interfered with unless such findings are recorded without notice to any one of the parties or

recorded without any reason, since it is always open to the workman or management to question the same after the final award is passed.

The decisions relied upon for the first respondent-management in Municipal Council, Khurai and Another Vs. Kamal Kumar and Another, ,

Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., ; Crescent Dyes and Chemicals Ltd. Vs. Ram Naresh Tripathi, , The

Management of Antiseptic (Journal) 326, Thambu Chetty Street, Madras-1 Vs. A. Gangadharan and The Government of India, State Bank of

Patiala v. S. K. Sharma 1996 II 5 LLJ 296, are not that much of any relevancy or directly on point involved for consideration particularly in the

teeth of the two binding precedents of Division Benches in Management of Engine Valves Ltd. Vs. Presiding Officer, Industrial Tribunal, Madras

and Another, , and N. Gurumurthy v. Second Additional Labour Court, (supra).

We have carefully considered the, submission of learned counsel in the light of the decision referred to for our consideration. The question is not

so much as to whether the existence of an alternative remedy is an impediment for this Court to exercise its jurisdiction under Article 226 of the

Constitution of India, since it has always been held to be not a rule of law but one of discretion of this Court and so far as we are concerned, unlike

the Apex Court hearing a special leave, hearing a regular appeal it becomes necessary to consider in the teeth of the grievance of the worker as to

whether the discretion has been properly exercised. Even that apart, the question before us is not as much as the question, of alternative remedy,

but the justification or otherwise, for this Court to entertain at preliminary stage and even at the threshold to thwart an expeditious conclusion of

proceedings before a Tribunal manned by a learned District Judge and that too of a matter for which a special law has been enacted to ensure

expeditious disposal to the claims of a worker. Even as early as in D.P. Maheshwari Vs. Delhi Administration and Others, , the Apex Court

cautioned against Courts exercising jurisdiction under Article 226 interfering at a preliminary stage, considered to be a premature stage. Can it be

contended that there are any extraordinary reasons for which the learned judge could be said to have been justified to adopt a different course. In

our view, there are none and this is not a case warranting or necessitating such interference. On the other hand, the binding force of the decision of

the Apex Court as also the Division Benches of this Court, noticed supra dissuade us from interfering with the orders of the second respondent -

Labour Court at this stage and, therefore, obliges us to interfere with the orders of the learned single Judge on the ground that the learned single

Judge has not exercised his discretion in accordance with the settled norms and the law declared by the Apex Court as also by this Court. The writ

appeal is liable to be and is allowed on this only ground. The grave concern expressed in these decisions, if interference at the interlocutory stage is

permitted as a normal rule, has come true in this case and the worker, who has lost his job in the year 1978, is yet to secure a verdict about the

legality and propriety of the same, either way, though two decades are nearing to be completed. We are unable to share or subscribe to the view

taken by the learned single Judge or approve of the reasons assigned for his interference in the matter at this stage.

For the reason that the matter is still pending before the Labour Court, on the merits of the contentions relating to the order of dismissal or the

question of non-employment and the correctness or otherwise of the preliminary order has to be gone into only at later stage when the final award

has been passed on an adjudication of rights of parties we set aside and vacate all findings and conclusions as also the observations made by the

learned single Judge. The Labour Court (the second respondent) is directed to proceed further in the matter expeditiously, from the stage at which

the preliminary order came to be passed. The writ appeal is hereby allowed but in the circumstances of the case there will be no order is as to

costs.