Gujarat High Court
Kiritkumar vs Ahmedabad on 17 June, 2011
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/7240/2011 23/ 23 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7240 of 2011
To
SPECIAL
CIVIL APPLICATION No. 7242 of 2011
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KIRITKUMAR
HARIBHAI PANCHAL - Petitioner(s)
Versus
AHMEDABAD
TEXTILE INDUSTRY'S RESEARCH ASSOCIATION (ATIRA) & 1 -
Respondent(s)
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Appearance
:
MR
VIPUL A SHAH for
Petitioner(s) : 1,MR K R MISHRA for Petitioner(s) : 1,
None for
Respondent(s) : 1 -
2.
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 17/06/2011
ORAL
ORDER
1. Heard learned advocate Mr.Vipul A. Shah appearing on behalf of petitioner in all the three matters.
2. In present petitions, identical orders have been passed by Industrial Tribunal, Ahmedabad in Complaint (IT) No.23/2011, 24/2011 and 25/2011, which are under challenge.
3. In facts of this case, a complaint under Section 33-A filed by workmen in pending Reference (IT) No.203 of 2009 before Industrial Tribunal, Ahmedabad. Against said complaint, written statement filed by respondent - employer which bears signature of unauthorized person, according to petitioner. Therefore, against said reply, preliminary objection application was filed by petitioner before Industrial Tribunal, Ahmedabad on 18.5.2011 where, according to petitioner, respondent - Society is registered under provisions of Societies Registration Act and having memorandum of association and Management is to be carried out by respondent on the basis of memorandum of association. According to memorandum of association, in Court proceedings, only power is with the council and except council, no other person or authority having power to appear in Court proceedings. This power is not to be delegated and that is provision in memorandum of association. Therefore, according to petitioner, such written statement must have to be signed and filed by council and except that, if any other person sings written statement and filed it, it can be considered to be an unauthorized reply and in this case, Mr.G.C.Patel, who has filed reply, he is not a member of council and he was an employee who was appointed on the basis of contract and also relieved from service on 5.2.2011. Therefore, this reply is to be removed from record. This application is preferred raising preliminary objection which has been received by other side and an endorsement is made by other side to the effect that they want to file reply against said application filed by petitioner. This endorsement has been made after receiving copy of application preferred by petitioner on 18.5.2011 and on the same day, even without giving or waiting for reply of other side, Industrial Tribunal, Ahmedabad has passed an order on 18.5.2011. This order is under challenge.
4. The Industrial Tribunal, Ahmedabad has considered one important fact that vide Exh.2 along with complaint under Section 33A, interim relief application is preferred by petitioner where in ad interim relief is also granted in favour of petitioner by Industrial Tribunal, Ahmedabad. This being an ex-parte interim order passed by Industrial Tribunal, Ahmedabad in favour of present petitioner. Therefore, Industrial Tribunal, Ahmedabad made a mention that till hearing of interim relief application, Exh.2, present application is kept pending and it is required to be considered along with Exh.2 application. Therefore, contention which has been raised in application as a preliminary point raised by petitioner on 18.5.2011 has been decided by Industrial Tribunal, Ahmedabad to be heard along with hearing of Exh.2 application. Therefore, Industrial Tribunal, Ahmedabad has not rejected application preferred by petitioner and also not decided application preferred by petitioner and merely adjourned hearing of application dated 18.5.2011 along with interim relief application Exh.2 and that order against which learned advocate Mr.Shah submitted that once preliminary point raised by other party, it is a duty even a legal obligation upon Industrial Tribunal, Ahmedabad to decide first relying upon a decision of Apex Court in case of Kirloskar Brothers v. Its Workmen, reported in 1962-II-LLJ-732, particularly Para.10, which is quoted as under :
"10. The tribunal's award in so far as it concerns these press employees cannot therefore be considered to have been properly arrived at in the absence of a prior decision of the preliminary question whether the press was in Independent business, distinct and separate from the factory or not. Whether or not the decision of the tribunal on this issue will affect the decision on the disputes 5, 6 and 8, it is unnecessary for us to consider the proper course for industrial adjudication to follow in cases where an issue of this kind is raised is to decide this issue first and then to consider and decide the demands on the basis of that finding. As that has not been done the only proper course for us to adopt is to set aside the award that has been made with regard to demands 3,4,5,6 and 8 in so far s the workmen in the press are concerned and to remit the case to the tribunal for disposal in accordance with law."
4.1 Except that, no other submission is made by learned advocate Mr.Shah in support of present petitions.
5. I have considered submissions made by learned advocate Mr.Shah and I perused order passed by Industrial Tribunal, Ahmedabad dated 18.5.2011, which is under challenge and also considered observations made by Apex Court in above referred decision.
5.1 The submissions made by learned advocate Mr.Shah is based on total mis-conception of law because it is not always a legal obligation upon Industrial Tribunal, Ahmedabad to decide any kind of preliminary point raised by party to be decided first. The Industrial Tribunal, Ahmedabad is having a discretionary jurisdiction to decide which preliminary point is required to be decided first and party cannot compel to Industrial Tribunal, Ahmedabad to decide first preliminary point which has been raised by petitioner before Industrial Tribunal, Ahmedabad.
6. It is necessary to note that Apex Court has also considered in Para.10 while making observations that where an issue of this kind is raised is to be decided first. Therefore, Industrial Tribunal, Ahmedabad must have to consider that which kind of issue has been raised as a preliminary point which requires to be decided first and for that, Industrial Tribunal, Ahmedabad is certainly having complete discretionary jurisdiction that such issue is not required to be decided first, it can be decided along with interim relief application Exh.2. For that, according to my opinion, Industrial Tribunal, Ahmedabad has not committed any error in adjourning hearing of preliminary point application along with interim relief application Exh.2.
7. In fact, there is no decision on merits which are challenged in present petitions. In order dated 18.5.2011 passed by Industrial Tribunal, Ahmedabad, the Industrial Tribunal, Ahmedabad has not examined or decided rights of either parties. In such a innocuous interlocutory order, writ petition is not maintainable. Prima facie, this Court is having an impression that why such kind of objection has been raised by petitioner being a preliminary point against written statement which has been signed by, according to petitioner, an unauthorized person. If the written statement remained signed by unauthorized person, then petitioner can argue at the time when Exh.2 application is heard that this written statement can be ignored because it has not been signed by authorized person. In spite of that, raised contention to remove written statement, then petitioner wants to delay the hearing of interim stay application wherein ex-parte interim relief enjoyed by petitioner. Therefore, this is not a bona fide application preferred by petitioner before Industrial Tribunal, Ahmedabad. But idea is to see that interim relief which has been obtained by petitioner ex-parte against respondent, let it be remained continued for some more time while rising such kind of frivolous contention as a preliminary point that written statement filed by other side may be removed from proceedings. This aspect has been properly examined and considered by Industrial Tribunal, Ahmedabad and therefore, it has adjourned hearing of preliminary point application along with interim relief application Exh.2.
8. It is also necessary to note that application dated 18.5.2011 submitted by petitioner which has been received by respondent on 18.5.2011 has been served to other side on same day and still reply is to be filed by other side. For that, specific endorsement has been made by advocate of other side. Therefore, without reply from other side, it is very difficult for Industrial Tribunal, Ahmedabad to decide preliminary point application filed by petitioner. Therefore, in light of this background, order dated 18.5.2011 which has been passed by Industrial Tribunal, Ahmedabad in each complaint is perfectly reasonable, justified and equitable which does not require any interference by this Court. The preliminary contention itself is not proper because if reply is filed by authorized person, then certainly petitioner can make submission before Industrial Tribunal, Ahmedabad that whatever averments made in written statement can be ignored. The question of removing written statement does not arise at all because relevant is averments made in written statement signed by unauthorized person and not the written statement itself. Therefore, prayer made by petitioner to remove written statement itself is contrary to law. But that question can be argued by petitioner before Industrial Tribunal, Ahmedabad that averments made in written statement bears signature of unauthorized person can be ignored by Industrial Tribunal, Ahmedabad.
9. Against interlocutory order, writ petition cannot be entertained by this Court because otherwise proceedings pending before Industrial Tribunal will be further delayed which delay definitely can in favour of petitioner. That view taken by this Court in case of Dinesh Mills Ltd. v. Kedarnath R. Pande, reported in 1998 II CLR 480. Relevant discussion of aforesaid decision are in Para.6,7,8,9 and 10, which are quoted as under :
"6. In the case of M/s. Woolcombers of India Ltd. v.
Woolcombers Workers' Union & Anr. (supra), their Lordships of the Hon'ble Supreme Court observed that the giving of the reasons in support of their conclusions by judicial and quasi judicial authorities when exercising initial jurisdiction is essential for various reasons. First, it is calculated to prevent unconscious unfairness or arbitrariness in reaching the conclusions. The very search for reasons will put the authority on the alert and minimise the chances of unconscious infiltration of personal bias or unfairness in the conclusion. The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations. Second, justice should not only be done but should also appear to be done. Unreasoned conclusions may be just but they may not appear to be just to those who read them. Reasoned conclusions, on the other hand, will have also the appearance of justice. Third, it should be remembered that an appeal generally lies from the decisions of judicial and quasi judicial authorities to the Supreme Court by special leave granted under Article 136. A judgment which does not disclose the reasons, will be of little assistance to the Court. The Court will have to wade through the entire record and find for itself whether the decision in appeal is right or wrong. In many cases, this investment of time and industry will be saved if reasons are given in support of the conclusions. So their Lordships of the Hon'ble Supreme Court, in the said case concluded that it is necessary to emphasise that judicial and quasi judicial authorities should always give the reasons in support of their conclusions. However, in that case, the Apex Court held that absence of reasons in support the conclusion is indeed a serious flaw in an award. However, the award cannot be set aside simply on that score, if there is evidence on the record in support of the Tribunal's conclusions. Thereafter, the Apex Court has gone into the entire evidence on record and decided the matter. So, if we go by the ratio of the Apex Court on which strong reliance has been placed by learned counsel for the petitioner, it comes out that a reasoned order is expected to be passed from the judicial or quasi judicial authorities, but the order of those authorities may not be set aside only on this count where in support of that order evidence is on the record.
7. This Court cannot be oblivious of the fact that it is only an interlocutory order and the matter pending before the Labour Court in between the parties has not been finally decided. Under this order, only the preliminary issue regarding fairness of the domestic enquiry conducted by the petitioner against the respondent-workman has been decided to be illegal and improper and the consequence thereof is to prove those charges before the Labour Court by the petitioner and if ultimately the charges are proved, then in view of the latest pronouncement of the Apex Court, in the case of L.I.C. v. Central Industrial Tribunal, reported in 1997(1) SCC 59, the order will relate back to the date of dismissal of the respondent-workman. Where an industrial dispute has been raised by workman against the action of the management to dismiss or discharge him from the services and it is referred for adjudication to the Industrial Tribunal or Labour Court, then that authority has to first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice ? So, in all such matters, where this point has been raised by the workman, this preliminary issue has to be decided to which no exception can be taken as it is now no more res-integra. The preliminary issue so decided either may be in favour of the management or workman, but it is nevertheless only a preliminary issue which does not decide the matter finally. In such matters, in case the affected party considers the matter to be worthy of agitation before the higher Court, then it can be agitated even after the final award. But where the matter is not finally decided and it is only an interlocutory order, there is no justification to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue. A reference in this respect may have to the decision of the Apex Court in the case of The Cooper Engineering Ltd. v. P.P.Mundhe, reported in AIR 1975 SC 1900. It is advantageous to reproduce the observations of the Apex Court, made at para-22 of the said decision:
"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 justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. it will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication."
8. The petitioner has titled this petition under Articles 226 & 227 of the Constitution of India. Even if it is taken to be a petition under Article 227 of the Constitution of India, then too interference of this Court is not called for in the present case because even if it is taken that some illegality has been committed by the Labour Court in passing of the impugned order, though I am not expressing any final opinion, still where this Court feels that it will not cause any prejudice to the party challenging the same, it may decline to interfere in the matter. Similarly, where by the impugned order, if it is not resulting in failure of justice to the party concerned, the Court may decline to interfere in the matter. In the present case, as observed earlier, this is only an interlocutory order and if ultimately final decision goes against the petitioner, then while challenging the said award, the petitioner has all right to challenge this order also and this Court has to consider the challenge and has to go into the question of correctness and propriety and legality of the said order and if ultimately this Court finds that the said order is illegal or improper, then the appropriate order may be passed in those proceedings. So it is not the case that the petitioner cannot challenge this order at any point of time. Their Lordships of the Apex Court, in the case of Cooper Engineering Ltd. v. P.P.Mundhe (supra), have clearly warned that the party should not be permitted to stall the final adjudication of the industrial dispute by challenging the order, passed by the Labour Court and Industrial Tribunal, on the preliminary issue. The Hon'ble Supreme Court has gone to the extent of saying that it will also be legitimate for the High Court to refuse to intervene at this stage. So I do not find it to be a fit case where otherwise also, interference should be made by this Court sitting under Article 226 of the Constitution in the matter.
9. If we take the matter to be under Article 227 of the Constitution of India, I do not find any justification in extending the jurisdiction of this Court under this Article in the present case. This Court, under Article 227 of the Constitution of India, cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duties and flagrant abuse of fundamental principles of law or justice where grave injustice would be done unless the High Court interferes. In the present case, as stated earlier, the preliminary issue has been decided by the Labour Court after taking evidence of both the parties and the main grievance of the learned counsel for the petitioner is that the order impugned is not a reasoned order. But only on this ground, in such case, as held by the Apex Court in the case on which reliance has been placed by learned counsel for the petitioner, the order may not be quashed and set aside. This Court, even in the matter where final orders have been passed by the Labour Court, may decline to interfere under Article 227 of the Constitution of India, where though the Labour Court has committed grave dereliction of duty or has made flagrant abuse of fundamental principles of law or justice, but no injustice is resulting to the party challenging the said order. This impugned order only decides the preliminary issue and the petitioner has all the right to challenge that order if ultimately the matter is finally decided against it, while challenging the final award of the Labour Court.
10. So taking into consideration the totality of the facts of this case and the decision of the Apex Court in the case of Cooper Engineering Ltd. v. P.P.Mundhe (supra), I do not consider it to be a fit case where at this stage, this Court should interfere with the order impugned in this Special Civil Application. As I do not consider it to be a fit case where interference has to be made by this Court in the interlocutory order of the Labour Court, I also do not consider it to be appropriate to examine the matter with reference to the evidence produced by both the sides and decide the matter on merits. However, it is made clear that decision of this Court will not come in the way of the petitioner to challenge this order if ultimately the award is passed against it in the matter by the Labour Court. It is further made clear that this Court has not examined the validity, legality and propriety of the order impugned on merits. In the result, this Special Civil Application fails and the same is dismissed summarily."
10. In view of these facts and considering observations made by this Court and also decision of Apex Court in case of Kirloskar Brothers (supra) relied by learned advocate Mr.Shah, according to my opinion, in fact, Industrial Tribunal, Ahmedabad has not decided rights of either parties and only adjourned hearing of preliminary point application along with Exh.2 application wherein petitioner is enjoying ex-parte interim relief in his favour. Therefore, such challenge cannot be entertained by this Court while exercising powers under Article 227 of Constitution of India. Therefore, contentions raised by learned advocate Mr.Shah cannot be accepted. It is desirable that Industrial Tribunal, Ahmedabad first decide interim relief application Exh.2 where ex-parte interim relief granted against respondent and along with that, whatever contention is to be raised by petitioner about written statement and signing authority, that can be raised by petitioner at the time of making submissions upon application Exh.2, which can be considered by Industrial Tribunal, Ahmedabad while examining Exh.2 application filed by petitioner.
11. The Apex Court has considered such question in case of Workmen of M/s.Hindustan Lever Ltd. and Others v. Management of M/s.Hindustan Lever Ltd., reported in 1984 Lab I.C. 276.
12. Similar aspect is also considered by Apex Court in case of S.K.Verma v. Mahesh Chandra & Others, reported in 1983 II LLJ 429 where observations made to the effect that while allowing appeal filed by employees held that, there appears to be three preliminary objections which have become quite a fashion to be raised by all the employers particularly public sector Corporation whenever an industrial dispute is referred to Tribunal for adjudication. One of the objections is that there is no industry, second that there is no industrial dispute and third that workman is not a workman. It is a pity that when Central Government, in all solemnity, refers industrial tribunal for adjudication, a public sector Corporation which is an instrumentality of State, instead of welcoming a decision by Tribunal on merits so as to absolve itself of any charge of being a bad employer or of victimization etc. should attempt to evade decision on merits by raising such objections and never thereby satisfied, carry the matter often times to High Court and to Supreme Court wasting public time and money. It is expected that public sector corporations to be model employers and model litigants. They are not expected to attempt to avoid adjudication or to indulge in luxurious litigation and drag workmen from Court to Court merely to vindicate not for justice, but some rigid technical stand taken by them. It is hoped that public sector corporations will henceforth refrain from raising needless objections fighting needless litigation and adopting needless postures.
12.1 The aforesaid observations which have been made by Apex Court against employer with same vigour is applicable to case of petitioner workman because he wants to evade decision on merit in respect to ex-parte interim stay obtained from Industrial Tribunal, Ahmedabad against respondent.
13. The Apex Court has also in case of D.P.Maheswari v. Delhi Administration & Others, reported in 1983 II LLJ 425 where question of jurisdiction of Tribunal to decide preliminary issue and also whether High Court or Apex Court can interfere with finding of preliminary issue has been examined and observations made in Para.1 is relevant, therefore, quoted as under :
"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 in dispute at the same time without trying some of them as preliminary issues. Nor should High Courts in the exercise of the jurisdiction under Art. 226 of the Constitution stop proceedings before 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 Art. 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 Art. 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 Art. 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."
14. In view of above observations made by Apex Court not to entertain petition even in case of decision given by Tribunal on preliminary point. But considering facts of this cases, order dated 18.5.2011 wherein even Industrial Tribunal, Ahemdabad has not examined and decided application. Therefore, question of challenging such order does not arise. The hearing of preliminary point application has been adjourned along with Exh.2 application but, intention of petitioner is that no hearing immediately to be taken place of Exh.2 application wherein ex-parte interim relief enjoyed by petitioner. Therefore, according to my opinion, normally such type of orders should not have to be challenged by workmen before higher forum. That is also wasting of time and expenses unnecessarily because no proper advise given to petitioner.
15. This Court had an occasion while examining order passed by Labour Court that preliminary issue raised by company can be examined and adjudicated at the time of final adjudication of reference in case of Manager, Air Control Engg. Co. Ltd. v. Kanaiyalal Ghusabhai Kunvaria, reported in 2000 (4) GLR 2895. Relevant discussion of aforesaid decision are in Para.8 to 13 and 15 which are quoted as under :
"8. After considering the submissions from both the learned advocates, it is undisputed fact that the Labour Court is having jurisdiction to adjudicate the industrial dispute, after the reference has been made to it by the appropriate Government. The Labour Court is required to adjudicate the entire dispute together finally and submit its award to the Appropriate Government. But usually whenever reference comes up before the Labour Court or the Industrial Tribunal, the employer/establishment, in order to delay the proceedings, raises the dispute whether it is an `industry' within the meaning and scope of Section 2 (j); or whether the dispute referred to it for adjudication is an `industrial dispute' within the scope of Section 2 (k) and/or also whether the employee concerned is a `workman' within the meaning of Section 2
(s) of the Act. Such a tendency and practice of the employer to avoid decision on merits has been developed since last 15 - 20 years of inviting the interim orders from the Labour Court and thereafter to challenge the same before the higher forum and stall the proceedings pending before the Labour Court, wherein in any case, the sufferer is ultimately the workman and not the employer.
Therefore, in such a situation wherein disadvantage has been taken by the employer by giving such application in almost all cases and inviting the orders from the Labour Court and thereafter to challenge the same in the higher forum, so naturally the workman has to surrender to the terms of employers because the workman is not able to bear the burden of expenses and to wait for a pretty long time for final adjudication and fruits of the award. Such tactics adopted by the employer should not be encouraged and it should have to be deprecated by the various decisions of the Apex Court.
9. In the matter of D.P Maheshwari [Supra], the Hon'ble Supreme Court has observed that, `...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. ... There was a time when it was thought prudent and wise policy to decide preliminary issue 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 jeopardies industrial peace, should decide all issues in dispute at the sametime 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 for 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. The 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.."
10. In the matter of S.K Verma v. Maheshchandra, reported in 1983 (2) LLN 637], the Apex Court while strongly disapproving the practice of raising frivolous preliminary objections at the instance of the employer to delay and defeat the purpose of adjudication on merit, has observed that, `there appears to be three preliminary objections which have become quite fashion to be raised by all employers, particularly Public Sector Corporations, whenever an industrial dispute is referred to the Tribunal for adjudication. One objection is that there is no `industry'. The second that, there is no industrial dispute and the third, that the workman is not workman. It is pity that when the Central Government in all solemnity refers an industrial dispute for adjudication, the Public Sector Corporation which is an instrument of the State instead of welcoming the decision of the Tribunal on merits so as to absolve of any authority of being a bad employer or of victimization, etc. should admit to evade decision on merits by raising such objection and Government thereby satisfy carry the matter often times to the High Court and to the Supreme Court wasting public time and money. It is expected that public sector corporation to be model employers and nodal litigants. They are not expected to avoid adjudication or to indulge in dragging workman from Court to Court merely to vindicate not justice but some rigid technical stand taken by them..'
11. In the matter between National Council for Cement & Building Materials and State of Haryana & Ors., the Hon'ble Supreme Court, while considering the decisions rendered by it in the matters of Cooper Engineering Limited v. P.P Mundhe [1975 (2) LLN 321]; of S.K Verma v. Mahesh Chandra [1983 (2) LLN 637]; of D.P Maheshwari v. Delhi Administration [1984 (1) LLN 1] and Hindustan Lever Limited [1984 (1) LLN 460], in its judgment in paragraph 11 has observed that, ..`Usually, whenever a reference comes up before the Industrial Tribunal, the establishment, in order to delay the proceedings, raises the dispute whether it is an `industry' as defined in Section 2 (j); or whether the dispute referred to it for adjudication is an `industrial dispute' within the scope of Section 2 (k) and also whether the employees are `workmen' within the meaning of Section 2 (s). A request is made with that these questions may be determined as preliminary issues so that if the decision on these questions is in the affirmative, the Tribunal may proceed to deal with the real dispute on merits.'. In paragraph 12 of the said judgment, the Apex Court has further observed that, `we, however, cannot shut our eyes to the appalling situation created by such preliminary issues which take long years to settle as the decision of the Tribunal on the preliminary issue is immediately challenged in one or the other forum including the High Court and proceedings in the reference are stayed which continue to lie dormant till the matter relating to the preliminary issue is finally disposed of.' By the aforesaid decisions, the Apex Court has depreciated the old tactics of the employers of raising preliminary issues so as to prolong the adjudication of industrial dispute on merits.
12. Now, I consider the pronouncements of various Courts cited by Mr. Chari. The judgment in matter of National Engineering Industries Limited v. State of Rajasthan [2000 1 CLR 389] is not in respect to the preliminary issue but it relates to the power of the High Court to entertain writ petition challenging the terms of reference where there is allegation that there is no industrial dispute. Therefore, the said judgment is not relating to the preliminary point which has been canvassed by Mr.Chari. The second decision relied upon by Mr. Chari in the matter of The Nedungadi Bank Limited v. K.P Madhavankutty [2000 AIR SCW 397] is also not relating to the preliminary point but it relates as to whether while making the reference, the appropriate Government can also consider the question of delay and if the Government thinks it fit, then such a stale dispute cannot be referred but it is not in respect to the present controvercy between the parties. The decision of the Apex Court in the matter of Management of Express Newspapers (Private) Limited, Madras [Supra] is relating to the question of preliminary issue. But, in the said decision, it is not held that each and every issue raised by the employer as a Preliminary issue should have to be decided first. The two decisions of the Karnataka High Court in the matters of Rangaswamy & Company [Supra] and of Hira Sugar Employees' Cooperative Consumers Stores Limited [Supra] though being on the preliminary issue, however, in the first decision in the matter of Rangaswamy [Supra] it was a case that the Labour Court has examined the question of interim relief, and therefore, the Court has held that before deciding the question of interim relief, the preliminary point which has been raised by the employer should have to be decided first then the interim relief is required to be granted by the Labour Court. So, it is altogether on the different footing. The second decision of the Karnataka High Court in the matter of Hira Sugar Employee's Cooperative Consumers Stores Limited [Supra] does not consider the decision in the matter of D.P Maheshwari and it only has considered the decision of the Apex court in the matter between Management of Express Newspapers (Private) Limited, Madras. Therefore, this judgment is also not relevant because subsequent to that decision, in case of National Council for Cement & Building Materials [Supra], almost all the decisions have been considered by the Apex Court. Thus, the decisions relied upon by Mr. Chari; as aforesaid, have no bearing in the matter at hand.
13. This Court, while exercising the powers under Article 226 and 227 of the Constitution of India is also required to examine the another question with regard to the interim order made by the Labour Court below Exh. 10 on 1st November, 1999. The Labour Court has come to the conclusion that the preliminary issue which has been raised by the petitioner Company shall have to be decided alongwith the final adjudication. While examining the legality and validity of such interim order, whether the power of this Court under Art. 226 & 227 can be exercised or not, which is also a discretionary power possessed by this Court. This question has been examined by the Apex Court in a reported decision in the matter of The Copper Engineering Ltd. v. P.P.Mundhe [AIR 1975 SC 1900] wherein it has been held that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. It is also legitimate for the High Court to refuse to intervene at that stage. In the matter of Cadila Health Care Ltd.versus Union of India and Ors. reported in 1998 (2) GLH 513, this Court has held that the petition under Article 226 and 227 of the Constitution of India challenging the interlocutory order not deciding the case finally in that event, even if the interlocutory order is illegal, in absence of failure of justice and in view of the right to challenge the said order when it becomes final, the petition against the interim order is not maintainable. In the matter between Chaggan Ranchodlal Kukvav v. G.M., Western Railways [1998 (1) GLH 461], the Division Bench of this Court has held that an order passed by the Tribunal can be challenged under Article 226 and 227 of the Constitution only if there is no jurisdictional error or procedural error apparent on the face of the record. In the matter of Mohmad Unus v. Mohmad Mustak, reported in AIR 1984 SC p-38, the Hon'ble Supreme Court has observed that mere wrong decision without in any manner is not enough to attract the jurisdiction of the High Court under Article
227. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited to see that the inferior court or Tribunal functions within limits of its authority and not to correct error apparent on the face of the record much less an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court of the Tribunal. It will not review or reweigh the evidence upon which the determination of the inteferior Court or the Tribunal purports to be based or to correct the error of law in the decision.
15. Recently, the Full Bench of Allahabad High Court has considered the very question in the matter between M/s. Swaroop Veg. Products Industries Limited v. The Labour Court-II, Meerut & Ors.,reported in 1997 (77) FLR 546, wherein the Full Bench has held that, `the importance of expedient disposal has been felt mainly for the reason that litigation is between mighty management and a poor workman and in such cases, experience shows that the Management usually tries to delay the proceedings as much as possible to harass the workman who has lost means of earning his bread on account of either dismissal or discharge or termination order. Viewed from this angle, it is not difficult to see that the answer to the question in the context of the matter is in favour of trying all the issues altogether. That is not to say that in an appropriate case judged on the facts and circumstances, the Tribunal / Labour Court cannot decide the issue relating to the validity of the domestic inquiry as a preliminary issue before proceeding further in the matter but it cannot be laid down as a larger number of universal application that the management as of right insist that the Industrial Tribunal/Labour Court is bound to accept its request to take up such issue as a preliminary issue, whenever is sought for in the case."
15. In similar case of Cadila Healthcare Ltd. v. Union of India & Ors., reported in 1998 (2) GLH 513. Relevant observations of aforesaid decision are in Para.9 and 11, which are quoted as under :
"9. This petition has been filed by the petitioner under Article 226 of the Constitution of India. Speaking for the Division Bench of this Court, Mr.Justice K.G.Balakrishnan, in the case of Chhagan Ranchod Kukava v. General Manager, Western Railway, Bombay & Anr., reported in 1998(1) GLH 461, observed that an order passed by the Tribunal can be challenged under Articles 226 or 227 of the Constitution of India only if there is a jurisdictional error or procedural error apparent on the face of the record. Under the impugned interlocutory order, the respondent No.2 has decided that it is not the case where the opposition of the respondent No.3 should be deemed to have been abandoned. So, the matter has not been decided finally. Only the action of respondent No.2 taking on record of these proceedings, the evidence filed by respondent No.3 has been held to be justified. That evidence has been taken on record by extending the period of filing evidence and the petitioner has been given opportunity to produce its evidence in support of its application. So by this impugned order, the proceedings are not finally culminated in favour of the respondent No.3 The matter has to be decided on merits. An interlocutory order is always subject to challenge after the proceedings in which it has been passed are finally terminated while challenging the final order passed by the authority before the appropriate forum. One of the cardinal principles of exercising extra ordinary powers by this Court under Article 226 of the Constitution is that even if the order impugned in the writ petition appears to be illegal, in case it does not result in failure of justice to the party concerned or in denial of any right of challenging the same, this Court will not interfere in the matter under Article 226 of the Constitution of India. A reference in this respect may have to the two decisions of the Apex Court in the case of A.M.Allison v. B.L.Sen, reported in AIR 1958 SC 227 and in the case of Balvant Rai v. M.N.Nagrashna, reported in AIR 1960 SC 407. In the present case, if ultimately the matter is decided against the petitioner by the respondent No.2, then while challenging the final order, the petitioner has all the right to challenge this interlocutory order also, if it is worthy of challenge, before the appropriate forum available to challenge the final order. Normally, the matters are to be decided on merits by affording to the contesting parties all the opportunities to produce their evidence, but even if it is taken that the respondent No.3 could not have been permitted to produce evidence in support of its notice of opposition, as what the petitioner contends, still the extension of time granted to respondent No.3, for filing the evidence, by respondent No.2 will not result in failure of justice as, as stated earlier, that order is always subject to challenge, but not at this stage. The petitioner has to wait for adjudication of the matter as well as for final termination of proceedings. There are all possibilities that the petitioner may succeed in the case and in that eventuality, there may not be any necessity of challenging this order. This is another point which favours the view which I am taking that against an interlocutory order, normally, the petitions are not maintainable. It is not gainsay that the present problem with the Courts is of heavy pendency of the matters and if the petitions are entertained against interlocutory orders, which can always be challenged while challenging the final orders passed in the proceedings, it will be nothing but only an act of injury which the litigants are suffering on account of delay in disposal of their matters by the Courts. Moreover, nor it can be justified at this stage to challenge this order when it will not result in failure of justice to the petitioner. The petitioner will have all the opportunity to submit its evidence upon the application and still if it feels that this order could not have been passed, it has all the right to challenge the same at the appropriate stage, for which it has to wait till the matter is finally decided.
11. The matter is yet to be examined from another angle. From the scheme of the Act, 1958, it transpires that the application for registration of trade marks has to be disposed of expeditiously. Otherwise also, leaving apart the scheme of the Act aforesaid, whether it is a proceeding before the Civil Court or Criminal Court or before this Court or even before any quasi-judicial authority or administrative authority, the same has to be disposed of expeditiously. This object, as well in some of the cases the mandate of the statute, can only be achieved or attained where the Courts which are having powers of superintendence or extra ordinary powers under Article 226 of the Constitution of India, do not permit the parties to stall the final adjudication of the matter by questioning the decision of the authorities with regard to interlocutory matters when the matter if worthy, can be agitated even after final orders are passed. I consider it to be fruitful here to make reference to the decision of the Apex Court in the case of The Cooper Engineering Ltd. v. P.P. Mundhe, reported in AIR 1975 SC 1900. The Apex Court, in this case, held:
"10. In Management of Ritz Theatre (P) Ltd. v. Its Workmen (AIR 1963 SC 295) this Court was required to deal with a rather ingenious argument. It was contended in that case by the workmen, in support of the tribunal's decision that since the management at the very commencement of the trial before the Tribunal adduced evidence with regard to the merits of the case it should be held that it had given up its claim to the propriety or validity of the domestic enquiry. While repelling this argument this Court made some significant observations:
"In enquiries of this kind, the first question which the Tribunal has to consider is whether a proper enquiry has been held or not. Logically, it is only where the Tribunal is satisfied that a proper enquiry has not been held or that the enquiry having been held properly the findings recorded at such an enquiry are are perverse, that the Tribunal derives jurisdiction to deal with the merits of the dispute......
If the view taken by the Tribunal was held to be correct, it would lead to this anomaly that the employer would be precluded from justifying the dismissal of his employee by leading additional evidence unless he takes the risk of inviting the Tribunal to deal with the merits for itself, because as soon as he asks for permission to lead additional evidence, it would follow that he gives up his stand based on the holding of the domestic enquiry. Otherwise, it may have to be held that in all such cases no evidence should be led on the merits unless the issue about the enquiry is tried as a preliminary issue. If the finding on that preliminary issue is in favour of the employer, then, no additional evidence need be cited by the employer: if the finding on the said issue is against him, permission will have to be given to the employer to cite additional evidence."
16. It is a settled law that no person is entitled to claim relief under Article 226 of Constitution as a matter of course. The jurisdiction of High Court under Article 226 to issue appropriate writs is extraordinary, equitable and discretionary and prerogative writs mentioned therein may be issued only for doing substantial justice. This aspect has been recently considered by Apex Court in case of M/s.B. Fine Art Auctioneers Pvt. Ltd. & Ors. v. CBI & Anr., reported in 2011 (1) Scale 742. Relevant observations are in Para.11, which is quoted as under :
"11. On the facts and circumstances, we are not inclined to exercise our discretion under Article 136 of the Constitution of India to grant any relief to the appellants. We are of the opinion that the High Court rightly refused to exercise its discretion under Article 226 of the Constitution of India in favour of the appellants. The jurisdiction of the High Court under Article 226 of the Constitution to issue appropriate writs is extra-ordinary, equitable and discretionary. Prerogative writs mentioned therein may be issued only for doing substantial justice. No person is entitled to claim relief under Article 226 of the Constitution as a matter of course."
17. Therefore, according to my opinion, a reasonable, just and proper order has been passed adjourning hearing of preliminary point application to be heard with Exh.2 application. For that, it will not cause any prejudice to petitioner. On the contrary, delaying tactics has been adopted by petitioner to avoid hearing of ex-parte interim relief enjoyed by them, has been rightly not encouraged by Industrial Tribunal, Ahmedabad. Therefore, there is no substance in present petitions. Accordingly, present petitions are dismissed without expressing any opinion on merits.
18. It is directed to Industrial Tribunal, Ahmedabad to decide application for preliminary point filed by petitioner along with Exh.2 application independently without being influenced by present order passed by this Court.
[ H.K.RATHOD, J. ] (vipul) Top