Karnataka High Court
Hira Sugar Employees Co-Op. Consumers ... vs P.P. Korvekar And Ors. on 15 November, 1994
Equivalent citations: [1995(70)FLR914], ILR1995KAR127, (1995)ILLJ1158KANT
Author: Tirath S. Thakur
Bench: Tirath S. Thakur
ORDER Tirath S. Thakur, J.
1. Two order passed by the Additional Labour Court, Hubli are under challenge in this petition. By one of these order passed on 31st July 1992, the Labour Court has held the domestic enquiry conducted against the Respondent/Employee to be violative of the of the principles of natural justice and therefore in-valid in law. By order other passed on the 20th of December, 1993, the said Court has allowed an interim application filed by the employee and directed payment of subsistence allowance to him at the rate of 75% of the wages last drawn with effect from 31st of July 1992.
2. The petitioner/employer is aggrieved of both these order which have been challenged in the present proceedings primilarily on the ground that the Labour Court had failed to address itself to the question of its jurisdiction, to examine the merits of the case even though the said question had arisen in view of the specific plea raised by the petitioner in the counter filed by it before the Court bellow to the effect the employee was not a 'workman' within the meaning of Section 2(s) of the industrial Dispute Act, 1947.
3. I have heard the learned Counsel for parties at length who have consented to the final disposal of this petition at the admission stage itself.
4. Mr. B. C. Prabhakar, learned Counsel appearing for the petitioner argued that in the reply to the statement of claim filed by the employee before the Labour Court the employer had raised a specific plea to the effect that the employee was working Secretary of the petitioner-society the nature of duties and functions attached of which post were mainly Managerial and Administrative in character. It further contended that the employee was not a 'workman' within the meaning of the provisions of the I.D. Act with the result that the reference made to the Labour Court was not maintainable. This plea contended the learned Counsel was raised at the threshold as a 'preliminary objection' to the maintainability of the reference as also the tenability of the petitioner's claim. It was argued that the objection raised clearly touched the root of the matter and the question the jurisdiction of the Labour Court to examine the controversy on merits making it incumbent upon the L.C. to examine the said issue as a 'preliminary issue' before going into the question whether the enquiry conducted against the employee was legally valid of before granting any interim relief to him. Reliance was placed by Mr. Prabhakar upon a Division Bench judgment of this Court in Management of Rangaswamy & Co. v. D. V. Jagadish, 1990(2) CLR 56 in support of his submission that whenever the Labour Court is confronted with the question whether the employee is or is not a 'workman' within the meaning of I.D. Act. It is expected to determine the said question as a 'Preliminary Issue' before looking in to the merits or the controversy referred.
5. I find considerable merit in the submissions made by Mr. Prabhakar. The statement of objections filed by the petitioner before Labour court does in specific terms raise the question whether the employee-Respondent herein is a workman and whether the reference to the Labour Court is maintainable. An issue therefore has necessarily arisen which souls required to be determine. The issue, it cannot be disputed, will also determined the question whether the Labour Court has any jurisdiction to go into the merits of the employee's claim and examine whether the domestic enquiry conduced against him was legally valid, for once it is held that the employee is not a 'workman' within the meaning of the Act, the Labour Court will have to lay its hands off and turn down the reference on that basis.
6. In the case of Management of Rangaswamy & Co. v. D. V. Jagadish, (supra) a similar question had arisen before this Court. That was also a case where the employer had raised before the Labour Court the plea that the employee was not a 'workman'. The point that feel for consideration of Division Bench of the Court was whether of a cause where a question affecting the jurisdiction of the Industrial Tribunal or the Labour Court is raised, it is necessary for the Tribunal or the Court to decide the same. This Court found that even when the reference made to the Labour Court is itself sufficient to confer jurisdiction upon the Court or the Tribunal to decide the matter referred to it and other matters incidental thereto yet is open to the employee to assert that the dispute referred to the Labour Court is not an industrial dispute or that the person raising the dispute is not a 'workman'. These questions which will incidentally involve the jurisdiction of the Labour Court to Tribunal, to examine the matter on merits, will have to be decided by the Labour Court or raised by the parties to the dispute before it. Relying upon a judgment of the Supreme Court in Management of Express News papers Pvt. Madras v. The workers & Ors. , this Court to decide the referred dispute would depend upon its decision on the question whether the employee was a 'workman'. This Court speaking through Swami J. (as his Lordship then was) observed thus :
"Similarly, in the instant cause, the jurisdiction of the Labour Court to decide the dispute, depends upon the decision on the question whether the 1st respondent is a 'workman'. Therefore, the Labour Court ought to have decided the issue as a preliminary issue if it was required to consider the interim relief sought for by take 1st respondent. Wherefore, in a cause where no interim relief is sought for or is required to be granted the issue affecting the jurisdiction can also be tried alongwith the other issues. However, we would like to make it clear that it all depends upon the facts and circumstances of each case as to whether an issue touching the jurisdiction of the Labour Court or Industrial Tribunal should be tried as a preliminary issue or not".
xxx xxx xxx "In the instant case, the Labour Court is required to decide the question as to whether the 1st respondent was a 'workman' whereas the Labour Court has held that it is not necessary to decide the same for the purposes of granting interim relief and the same can be decided at a later stage. At the later stage, if it is held that the 1st respondent is not a 'workman' he would not be entitled any relief whatever in the dispute by him including the interim relief claimed by him. In that event, the interim relief ordered by the Labour Court would be without jurisdiction. Therefore, in the fact and circumstances of the cause, the issue raised by the appellant touching the jurisdiction of the Labour Court was required to be decided as a preliminary issue. This is sufficient to dispose of the Writ Appeal".
7. The position in the instant case is no different. The issue issue whether the employee/respondent is a workman has been raised and does clearly arise from the pleadings before the Labour Court. An application for interim relief was also made and has in fact been allowed by the Labour Court. The grant of any interim relief by the Labour Court without addressing itself to the question whether the employee was a workmen and whether it had jurisdiction to grant any such relief is therefore clearly erroneous. The proper course for the Labour Court was to frame an issue as to the question whether the employee was a 'workman' and determine the same as a 'Preliminary issue' keeping in view the fact the jurisdiction to pass any further order on the subject including his jurisdiction to grant any interim relief to the employee was dependent on his dependent on the said 'preliminary issue'. The Labour Court, however, appears to have totally over-looked this aspect of the matter and proceeded on the assumption as if it was admitted that the employee was a 'workman' and it had the jurisdiction to examine the matter on merits. This assumption was in my pinion wholly mis-placed and therefore the order passed by it on the basis thereof must fail.
8. I find substance even in the other limb of Mr. Prabhakar's submission. It was argued by him that the order passed by the Labour Court on 20th December, 1993, granting subsistence allowance to the employee at the rate of 75% of the wages last drawn by him, was a non-speaking order passed without affording to the petitioner a reasonable opportunity of opposing the same. A plain reading of the order in question makes it clear that the order indeed is not supported by any reason whatsoever. All that it contains is a direction without disclosure of any reason in support thereof.
9. It is therefore difficult to say whether or not the order in question was passed by the Labour Court after due and proper application of its mind to the case. Application of mind cannot be inferred unless mind is disclosed by the authority passing the order; and disclosure of mind is best done by recording reasons for the conclusion being arrived at. An order passed without proper application of mind by the authority must be deemed to be per se arbitrary and even mala fide in law, even when the authority passing the same may infact have no malice against the party who suffers such an order. The duty cast upon a statutory judicial or quasi judicial authority to act only upon proper application of mind, fairly and objectively and to record reasons in support, of the order made whether the same be interim or final, can hardly be underplayed let alone undermined. This is so particularly where the order passed by the authority creates for fastens liabilities against a citizen, for one of the most valued guarantees which the system provides to the citizen is a fair, objective non-discriminatory treatment to his rights free from the vice of arbitrariness.
10. Learned Counsel for the respondent however contended that the petitioner had not filed any objections to the application seeking interim relief and therefore, it must be assumed that it had no objection to the grant thereof or in any case the necessity of recording reasons must in such a situation be deemed to have been waived. I see no substance in either of the resubmissions. The order dated 20-12-1993 itself records a request, made on behalf of the petitioner for an opportunity to file its objections, which was refused by the Labour Court. It cannot therefore be said that the petitioner had no objections to the grant of the interim relief or that it consented to the same. In the second place, even when the respondent before an authority determining his rights or obligations is ex parte, the duty to act judicially and make an order after due and proper application of mind and after recording reasons in support thereof cannot be given a go-bye. That duty lies firmly in place throughout and at all stages of the proceedings till the same are concluded. Indeed it is difficult to countenance the argument that the absence or neglect of the respondent in the proceedings should relieve the authority concerned of the duty which the law casts upon it, particularly so when the duty is meant to ensure that the end result of the exercise being conduced by it is fairly and properly arrived at by adoption of a process which in itself is objective and free from arbitrariness. I have therefore no hesitation in rejecting the submission made by the learned Counsel for the respondent.
11. It was next contended by the learned counsel for the respondent, that even if this Court were to set aside the orders impugned, and remit the matter back to the Labour Court yet this court ought to grant to the respondent interim relief for the period during which the Labour Court may take a fresh look into the matter. In support of this submission the learned Counsel placed reliance upon the judgment of his court in Rangaswamy's case (supra). I have thoughtfully considered this submission but find myself unable to accept the same, not only because by adopting the course suggested I shall be committing the same error as was in my opinion committed by the Labour Court but also for the reasons that there is nothing before me to even prima facie shown whether the petitioner is a 'workman' given regard to the nature of his duties and whether he is or is not gainfully employed, elsewhere. It is therefore difficult to grant any relief to the respondent, at this stage in these proceedings.
12. In the result this petition succeeds and is allowed. By a writ of certiorari, order dated 31-7-1992 and 20-12-1993 passed by the Additional Labour Court Hubli in Ref. No. 123/93 are quashed, and the said Court directed to frame an issue as to whether the employee respondent herein is a 'workman' within the meaning of the Disputes Act. The Labour Court shall decide the issue so framed as a preliminary issue expeditiously and as far as possible within a period of 4 months from the date a copy of this order is presented before it. depending upon the decision, returned on the preliminary issue, the Labour Court shall proceed further in the matter and take up the other issues arising in the case, and the application for interim relief, if the finding on the preliminary issue goes in favour of the employee.
13. All other contentions raised in the writ petition relating to the validity or otherwise of the orders in question are left open, reserving liberty to the parties to urge the same should an occasion to do so arise, in this court or before the Labour Court, as the case may be.
14. No costs.