Orissa High Court
Odisha State Disaster Management vs Presiding Officer on 4 October, 2023
Author: Arindam Sinha
Bench: Arindam Sinha
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.13324 of 2022
(Through Hybrid mode)
Odisha State Disaster Management .... Petitioner
Authority, Khurda
-versus-
Presiding Officer, Labour Court, .... Opposite Parties
BBSR and others
Learned advocates appeared in this case:
For petitioner : Mr. P. K. Rath, Senior Advocate
For opposite parties : Ms. S. Pattanayak, Advocate
(Additional Government Advocate)
Mr. A. Mishra, Advocate (opp. party no.2)
Mr. M. K. Panda, Advocate(opp. party no.3)
CORAM:
JUSTICE ARINDAM SINHA
JUSTICE SIBO SANKAR MISHRA
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Dates of Hearing : 3rd May, 2023 and 4th October, 2023 Date of Judgment : 4th October, 2023
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1. The writ petition was moved on 3rd May, 2023 before the Bench, in which one of us (Arindam Sinha,J.) was party. Mr. Rath, Page 1 of 13 // 2 // learned senior advocate appearing on behalf of petitioner had submitted, impugned is order dated 23rd March, 2022, whereby preliminary objection raised by his client was not at all dealt with. The objection goes to root of the matter for adjudication of alleged computation of entitlement of opposite party no.2. Said opposite party was not a workman within meaning of section 2(s) in Industrial Disputes Act, 1947. His client is not an industry. Substantive application was made disclosing the bylaws, not at all considered. In the circumstances, said opposite party could not have applied under section 33-C(2).
2. Ms. Pattanayak, learned advocate, Additional Government Advocate appears on behalf of opposite party no.1 and Mr. Panda, learned advocate, for opposite party no.3.
3. Mr. Mishra, learned advocate appears on behalf of opposite party no.2. He submits, whether or not his client is a workman, is a mixed question of law and fact. It has to be established on evidence laid. In the circumstances, there is no illegality in impugned order. He submits further, judgment of the Supreme Court in D. P. Maheshwari vs. Delhi Administration, reported in (1983) 4 SCC 293 was clear declaration of the law requiring the labour Court to WP(C) no. 13324 of 2022 Page 2 of 13 // 3 // decide all issues in a dispute at the same time without trying some of them as preliminary issues. He relies on paragraph 1 (Manupatra print), extracted and reproduced below.
"1. 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 WP(C) no. 13324 of 2022 Page 3 of 13 // 4 // 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 journeyings up and down. It is also worthwhile remembering that the nature of the jurisdiction under Article 226 is supervisory and WP(C) no. 13324 of 2022 Page 4 of 13 // 5 // 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."
(emphasis supplied)
4. In reply, Mr. Rath relies on several other judgments of the Supreme Court.
i) V. G. Jagdishan vs. Indofos Industries Limited, reported in (2022) 6 SCC 167, inter alia, paragraph 15. The paragraph is reproduced below.
"15. In D.P. Maheshwari which is pressed into service by the 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 WP(C) no. 13324 of 2022 Page 5 of 13 // 6 // 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."
(emphasis supplied) Mr. Rath submits, by this judgment said Court's earlier judgment in D. P. Maheshwari (supra) was interpreted and explained.
ii) State of Madhya Pradesh vs. Somdutt Sharma available at 2021 SCC OnLine SC 829, paragraph 11. We extract and reproduce below passage therein relied upon.
"11. ... ... ... But the test is what are the predominant functions and activities of the said Department. Even if the activity of operation of pumps is carried on by few employees, the Irrigation department does not carry on manufacturing process. As it is not carrying on manufacturing process, it is not a factory within the meaning of clause(m) of section 2 of the Factories Act. Therefore, the WP(C) no. 13324 of 2022 Page 6 of 13 // 7 // Irrigation Department of the first appellant will not be an Industrial Establishment within the meaning of Section 25L. Accordingly, Chapter VB will have no application in the present case."
(emphasis supplied) On query from Court he submits, even though the application was made under section 33-C(2), the declaration of law regarding chapter V-B having no application to the Irrigation Department is relevant. More so, because sub-section (2) in section 33-C is continuation of situation provided for by sub-section (1), regarding money due to a workman from an employer under, inter alia, provisions of chapter V-B. In this context he relies on Municipal Corporation of Delhi vs. Ganesh Razak, reported in (1995) 1 SCC 235, paragraph 12.
iii) M. L. Singla vs. Panjab National Bank, reported in (2018) 18 SCC 21, paragraphs 25 and 26, reproduced below.
"25. Assuming that the Labour Court had the jurisdiction to direct the parties in the first instance itself to adduce evidence on merits in support of the charges yet, in our opinion, it was obligatory upon the Labour Court to first frame the preliminary issue on the question of legality and validity of the domestic enquiry and confined its discussion only WP(C) no. 13324 of 2022 Page 7 of 13 // 8 // for examining the legality and propriety of the enquiry proceedings.
26. Depending upon the finding on the preliminary issue on the legality of the enquiry proceedings, the Labour Court should have proceeded to decide the next questions. The Labour Court while deciding the preliminary issue could only rely upon the evidence, which was relevant for deciding the issue of legality of enquiry proceedings but not beyond it."
5. In dealing with the cases cited by Mr. Rath, Mr. Mishra relies on The Central Bank of India Limited vs. P.S. Rajagopalan, reported in AIR 1964 SC, 743, paragraph 16 (Manupatra print). He submits, by the judgment said Court declared the scope on interpreting sub-section (2) of section 33-C, as a provision independent of other provisions in said section.
6. The labour Court, by impugned order said, inter alia, as reproduced below.
"On perusal of the case record, it is found that the applicant has filed the present case for computation of money due to him from the O.Ps. It is claimed by OP No.1 the issue in question i.e. "whether the applicant is coming under the definition of workman WP(C) no. 13324 of 2022 Page 8 of 13 // 9 // and whether the organization of OP No.1 is an industry" as defined in ID Act be decided as a preliminary issue before proceeding with the hearing of the case, But, it cannot be over sighted that the issue as to whether the applicant being posted as Community Mobiliser under the concerned O.P was discharging managerial duties or his job involved manual, unskilled, skilled, technical, operational clerical etc. of work is a matter of fact to be decided from the evidence likely to be adduced by the parties. Thus, the disputed issues involve matter of fact and law. As per the settled principle, had it been an issue involved with question of law the same could have taken up as a preliminary issue for deciding the fate of the reference. The issue being a mixed question of fact and law cannot be taken up for hearing as a preliminary point. Besides, the Hon'ble Apex Court in the case of D.P. Maheswari Vrs. Delhi Administration, reported in 1983(II)LLJ 42 have deprecated hearing of matters or issues in a piecemeal manner. Thus, the petition being devoid of merit stands rejected."
7. D. P. Maheshwari (supra) was judgment of the Supreme Court by a Bench of three learned Judges. It was not noticed in M. L. Singla (supra). By the former judgment there was clear declaration of law regarding procedure to be followed by the Tribunals entrusted WP(C) no. 13324 of 2022 Page 9 of 13 // 10 // with task of adjudicating labour disputes. Further declaration was for the High Courts in exercise of their jurisdiction under article 226 of the Constitution, not to stop proceedings before the Tribunals so that preliminary issues may be decided by them. The judgment went on to further declare that neither the jurisdiction of the High Court under article 226 of the Constitution nor the jurisdiction of said 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. Here, we appreciate issue vital to the workman being his claim for payment of arrear salaries, in respect of which he had moved the labour Court under section 33-C(2).
8. In V. G. Jagdishan (supra) a Division Bench of the Supreme Court distinguished D.P. Maheshwari (supra) as not applicable on facts. The Bench went on to say that when the issue touches the question of territorial jurisdiction, as far as possible, same shall be decided first as preliminary issue. Therefore, in that case, the labour Court did not commit any error in deciding the issue in respect of territorial jurisdiction as a preliminary issue in the first instance. It WP(C) no. 13324 of 2022 Page 10 of 13 // 11 // follows that on the distinction made regarding D. P. Maheshwari (supra), as not applicable on facts, the Bench also found that the question decided as preliminary issue was regarding territorial jurisdiction. It merely said that the Tribunal having decided it first as preliminary issue did not commit any error. We do not find a declaration of law therein that can be relied upon as an interpretation of D. P. Maheshwari (supra), in diluting it to come in aid of petitioner.
9. On perusal of sub-sections (1) and (2) in section 33-C, it appears sub-section (1) provides for, inter alia, a workman to apply where any money is due to him from an employer under the provisions of chapter V-B, by himself or otherwise as provided. The application is to be made to the appropriate Government and if it is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector, who shall proceed to recover it in the same manner as an arrear of land revenue. Further provision regarding limitation is not relevant for our purpose. Sub-section (2) provides for any workman, who is entitled to receive from the employer any money or benefit which is capable of being computed in terms of money, to apply to the specified labour Court. In this context sub- WP(C) no. 13324 of 2022 Page 11 of 13
// 12 // section (4) provides that the amount found due by the labour Court may be recovered in the manner provided under sub-section (1), i.e., by issuance of certificate to the Collector for recovery as arrears of land revenue. So, there is essential difference between the two contingencies provided by sub-sections (1) and (2). Sub-section (1) provides for a liquidated sum of money to be recovered while sub- section (2) provides for computation of any money or benefit, which is capable of being computed in terms of money, where question arises as to the amount of money due. Therefore, we are unable to accept petitioner's contention that provision in sub-section (2) is continuation of the situation provided under sub-section (1).
10. Lastly, in dealing with Ganesh Razak (supra) we find that the Supreme Court, in relied upon paragraph 12, said that ratio of the decisions cited in that case clearly indicated that where the basis of the claim or entitlement of the workman towards certain benefit is disputed, there not being earlier adjudication or recommendation thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of provision under section 33-C(2) of the Act. The declaration of law was, the labour Court has no jurisdiction to first decide the WP(C) no. 13324 of 2022 Page 12 of 13 // 13 // workman's entitlement and then proceed to compute the benefit. In the case at hand, the labour Court has not been able to proceed to decide on any of the issues that are involved. Petitioner is before us because its objection was not made a preliminary issue, thus not pronounced upon but relegated for decision with all issues following D. P. Maheshwari (supra). We find that the labour Court, by impugned order, took a possible view. Hence, there is no perversity in impugned order.
11. The writ petition is without merit and dismissed.
12. ( Arindam Sinha ) Judge ( S. S. Mishra ) Judge Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR SAHOO Reason: Authentication Location: OHC Date: 06-Oct-2023 10:36:11 WP(C) no. 13324 of 2022 Page 13 of 13