Gujarat High Court
Vishv Enterprise vs Workmen Through Gujarat Majdoor Sabha on 13 July, 2018
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/5281/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5281 of 2018
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VISHV ENTERPRISE
Versus
WORKMEN THROUGH GUJARAT MAJDOOR SABHA
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Appearance:
MR YOGI K GADHIA(5913) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 2,3,4,5
MR AMRESH N PATEL(2277) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 13/07/2018
ORAL ORDER
1. The present petition is filed under Articles 226 and 227 of the Constitution of India for the purpose of challenging the legality and validity of the order dated 16.02.2018 passed by the learned Industrial Tribunal, Surat (for short the "Tribunal") at Exhibit21 in Reference (IT) No. 35 of 2017.
2. The case of the petitioner is that the petitioner is a partnership firm dealing in the business of manpower, supplying machinery to various organizations, having its office infrastructure registered under the provisions of EPF and MP Act, ESI Act etc. It has accordingly applied in a tender in Page 1 of 37 C/SCA/5281/2018 ORDER supplying manpower in South Gujarat Zone and was awarded contract consequently for a period of three years. Since the year 201112 the said contract was again renewed in the year 2015 which was put to end on 31.03.2018. In response to such, the petitioner had deployed around 525 persons in respondents nos. 2 and 4, during the tenure and all these persons were paid by the petitioner on regular basis directly in their bank account and their PF contributions etc., were also deducted and remitted regularly and there is a clear compliance of the relevant labour laws applicable to the petitioner. Till April, 2017, everything was smoothly going on. However, for the first time on 05.04.2017 the respondent - Union sent a notice inter alia seeking three demands including regularization. As a result of this, the conciliation proceedings were initiated and the same were ended upon submission of failure report to the Government on 26.09.2017. It is the case of the petitioner that during the entire conciliation proceedings from the demand notice till the failure report thereof, the respondent did not even utter a word regarding any demand relating to bonus. However, suddenly on 07.10.2017 the respondent Union for the first time raised an issue relating to bonus @ 20% on or before 15.12.2017 failing which a threat was administered to initiate indefinite strike from Page 2 of 37 C/SCA/5281/2018 ORDER 16.10.2017. Since the pressure was not succumbed to and the petitioner had conveyed inability, approximately 260 workers went on illegal strike with effect from 16.10.2017 for a period of two days before the eve of 'Diwali' festival. This pressure was being generated at the instance of respondent no. 1. However, correspondence exchanged between the labour machinery and the petitioner and instead of awaiting orders from the appropriate authority, respondent no. 1 Union straightway approached this Court by way of Special Civil Application No. 19953 of 2017 and the petitioner appeared through the lawyer, submitted detailed reply and after hearing at length, the Court was pleased to dispose of the petition by order dated 20.12.2017, observing that the prayers which were made of reference did not survive in view of the order passed by the appropriate government dated 18.11.2017 whereby the dispute was ordered to be referred.
2.1. Since large chunk of workers continued to remain on illegal strike from 16.10.2017 the reference ultimately was registered before the Tribunal being Reference (IT) No. 35 of 2017 and in view of the procedure under the provisions of the Industrial Disputes (Gujarat) Rules, (hereinafter referred to as the "Rules"), Page 3 of 37 C/SCA/5281/2018 ORDER notices have been issued on 27.11.2017 in Form No. 8 and Form No. 9 whereby the Union was instructed to submit its Statement of Claims on or before 20.01.2018 and the petitioner was also required to submit their written statement on or before 17.02.2018. It is further the case of the petitioner that as per the provisions of the Rules, only after the pleadings are submitted by both the sides, the Court issues notice of hearing as per Rule 19 of the Rules in Form No. 10 specifying first date of hearing. Here, till date it was the case of the petitioner that no such notice in Form No. 10 was issued. In view of these facts, despite the aforesaid situation, the respondent Union approached the learned Tribunal on 20.01.2018 itself without any application for early hearing etc., inter alia praying for appointment of the Court Commissioner. The learned Tribunal did not consider the above aspect and fixed the matters straightway for hearing on 25.01.2018 for hearing the said application. The same was thereafter kept on 02.02.2018. The petitioner filed its detailed reply and moved an application for seeking preliminary contention to be decided first. As the main application itself is not maintainable for want of jurisdiction and the said application at Exhibit20 was submitted before the learned Tribunal, simultaneously, the petitioner also moved another application at Page 4 of 37 C/SCA/5281/2018 ORDER Exhibit21 inter alia praying that application raising preliminary contention be heard first as the same goes to the root of the main matter. It is further the case of the petitioner that all these facts have been posted before the learned Tribunal by way of aforesaid applications regarding the conduct of the Union as well as about the 260 workers who went on strike abandoned the work even before the eve of Diwali in Civil Hospital etc., and hence another demand praying to apply pressure upon the authority. The petitioner raised all these issues and raised a preliminary objection with regard to the jurisdiction and various decisions have been placed on record so as to substantiate the said contention. However, it appears that by way of an order dated 16.02.2018 the learned Tribunal, rejected the application below Exhibit21 in Reference (IT) No. 35 of 2017 discarding the request of the petitioner. As a result of this, left with no other alternative, the petitioner is constrained to challenge the said decision by way of present petition under Articles 226 and 227 of the Constitution of India. The following reliefs have been prayed for which read as under : "14.(A) Your Lordship may be pleased to issue a writ of certiorari and/or a mandamus and/or any other order quashing and setting aside the order dated 16.02.2018 passed by the learned Industrial Tribunal, Surat below Exhihit21 in Ref. (IT) No. 35 of 2017 (Annex."A"). Page 5 of 37 C/SCA/5281/2018 ORDER (B) Your Lordship may also be pleased to grant the stay against the execution, operation and implementation of the order dated 16.02.2018 passed by the learned Industrial Tribunal, Surat below Exhibit21 in Ref. (IT) No.35 of 2017 (Annex."A") and further be pleased to stay the proceedings of Ref.(IT) No. 35/2017 till the final disposal of the present petition.
(C ) Any other relief may be granted."
3. The Court while taking up the matter, upon request of both the sides has heard this matter at length on 18.04.2018 and thereafter, after hearing the respective sides, the matter was kept for orders, but during passage of time, the roster has been changed and thereafter, after proper submissions by the office, the matter was again placed back to this Court vide administrative order dated 28.06.2018. In view of the order dated 28.06.2018, when this matter was ordered to be listed on 13.07.2018 before this Court. However, the learned advocates for the respective sides have requested the Court that since the hearing is over and the same was argued at length, nothing further to be added and therefore, appropriate orders be passed in the present proceedings. As a result of this, the Court has considered the relevant stand taken by both the sides.
4. First of all learned advocate Mr. Yogi Gadhia appearing for the petitioner has vehemently contended that the order in Page 6 of 37 C/SCA/5281/2018 ORDER question passed by the learned Tribunal is not in consonance with the manner in which it has to be passed and the detailed contentions which have been raised by the petitioner appears to have been not dealt with at all. Hence, the order suffers from the violation of the principles of natural justice. In fact, while exercising the discretion, the points which have been raised ought to have been dealt with by the learned Tribunal which having not done, such laconic order may not be allowed to stand in the eye of law. Learned advocate Mr. Gadhia has further submitted that specific legal issue has been raised which is touching to the root of exercising jurisdiction and the same is always permissible to raise as a preliminary issue and when that be so, the order in question is not tenable in the eye of law. The issue which has been raised is directly touching the root of controversy and the reference which has been allowed was not possible to be adjudicated still, however, such important issue on the point of law is not taken up as a preliminary issue. The learned Tribunal has passed an order on the basis of mere probabilities and the outcome while passing the impugned order which is very much reflecting from para 6 of the impugned order and therefore, on this count alone, for non application of mind, the order in question is required to be corrected. Page 7 of 37 C/SCA/5281/2018 ORDER 4.1. The learned Tribunal has no jurisdiction at all to deal with the main proceedings despite that fact, the application for seeking the Court Commissioner was being dealt with and therefore, the entire exercise is neither amenable nor within the powers vested in the learned Tribunal. Learned advocate Mr. Gadhia has further contended that by ignoring the judicial pronouncements it has been clarified that the point of jurisdiction is an issue which can be dealt with as a preliminary issue and as such having not considered the said aspect, the order in question is required to be corrected. It has further been projected clearly before the authority that as per the provisions contained in the Rules, before initiation of the proceedings, in the form of notice, the said procedure prior thereto ought to have been examined and only thereafter, the point of jurisdiction can be raised and therefore, when such was the situation found, which is clearly touching the root of controversy. The application so submitted, the learned Tribunal ought not to have ignored the conduct on the part of the respondent Union as well as its members who went on strike illegally thereto in severe medical exigencies with respect to Civil Hospital and staff as well and there is no nexus with the demand raised in the reference and Page 8 of 37 C/SCA/5281/2018 ORDER the strike. Now all these issues have not been gone into and by raising inference an order came to be passed rejecting the request at Exhibit21.
4.2. The main submission which has been made by learned advocate for the petitioner is perused, it ought not have been discarded so much so that a specific application in detail has been brought before the authority which is reflecting from page 87 of the petition compilation and since, the issue was relating to the exercising of very jurisdiction and maintainability of the reference itself, a specific application was given at Exhibit21 to hear and dispose of the same at the earliest. Learned advocate Mr. Gadhia has further drawn attention to the various documents attached to the application and has ultimately submitted that the main matter was kept for the purpose of reply which can be seen from the rojkam and the relevant page at 103/A at item no. 37 for the purpose of reply the application was kept on 28.03.2018 and no hearing actually has taken place on that day, whereas, on 28.03.2018 instead of waiting for reply instead of considering the matter at length, an exparte proceedings have been heard as it appears and only recorded that 1 and 2 have projected that the contract is to be extended Page 9 of 37 C/SCA/5281/2018 ORDER as if the hearing has taken place in its entirety on which proceedings have been dealt with and for the purpose of arguments Exhibit11 proceedings have been kept. Now, this is a part of consequential steps as reflecting in the rojkam. As a result of this, there arose a necessity to challenge the legality and validity of the impugned order passed by the learned Tribunal.
4.3. Learned advocate Mr. Gadhia has contended that at Exhibit20 an application raising preliminary issue has been raised which was submitted but surprisingly reverse principle of "first come first go" the application for appointment of Court Commissioner application was to be dealt with as has been submitted. It was erroneously held by the learned Tribunal that it is not proper to see that both the applications can be dealt with simultaneously. As a result of this, the application at Exhibit11 for appointment of the Court Commissioner is ordered to be heard by the impugned order. The detailed contention which has been raised, several authorities have been submitted before the learned Tribunal however, by one para contained in four to five lines of those detailed submissions have been discarded nor dealt with and as stated that since the same Page 10 of 37 C/SCA/5281/2018 ORDER are related to issue about hearing of the preliminary issue and since the Court has not declared to hear the preliminary issue, such application is to be heard first is the discretion left to the Court. It has been submitted that looking to the record the application for appointment of Court Commissioner has come first, submitted first in point of time and therefore, on the basis of the principle of "first come first go", the application for Court Commissioner is to be heard and if that is heard, there is no likelihood of any prejudical effect and therefore, according to learned Tribunal application at Exhibit11 with regard to appointment of Court Commissioner is to be heard first. As a result of this, the application of the petitioner at Exhibit21 is rejected which is nothing but a clear example of irregular exercise of jurisdiction. Learned advocate Mr. Gadhia has contended that it is the settled position of law that the Court has to deal with each and every aspect which is being agitated and the decisions which have been pointed out at length, ought to have dealt with at least and it has further been contended that there is no concept of law of "first come first go" which is to be applied in such a mechanical exercise of jurisdiction. 4.4. Learned advocate Mr. Gadhia has further contended that Page 11 of 37 C/SCA/5281/2018 ORDER whatever any issue which is touching to the root of controversy especially when relief for the purpose of jurisdiction aspect the same is always to be treated as first as preliminary issue and if there is no jurisdiction at all, incidentally other applications touching to the main application are to be then dealt with. Here is a case in which according to the petitioner it is not open for the learned Tribunal to proceed further for want of jurisdiction itself as the main reference according to the petitioner is not maintainable. The reasons assigned about "first come first go" is nothing but a clear example of arbitrary and irregular exercise of jurisdiction. Accordingly, this being a position, the order in question requires to be corrected.
4.5. By list of several decisions, an attempt is made to substantiate the stand by supplying 11 authorities. Mainly with a view to contend that the preliminary issue must be given predominance. As a result of this, a request is ultimately made to set aside the impugned order and direct the learned Tribunal to hear and decide first the application which is related to preliminary objection. It has further been contended that if there is an apprehension on the part of the respondent to see that by virtue of such hearing any dilatory tactic would be adopted by Page 12 of 37 C/SCA/5281/2018 ORDER the petitioner within which the petitioners are ready and willing to file appropriate undertaking before this Court also to see that they will cooperate with the hearing and within some time bound schedule the said application may be dealt with in accordance with law, but under the guise of some apprehension if jurisdictional issue is to be side line, then the same is nothing but a serious error of law prejudicial to the case of the petitioner. Accordingly, the order be set aside by granting the relief as prayed for in the petition.
4.6. In any case, learned advocate Mr. Gadhia has further alternatively submitted that in view of the detailed contentions which have been raised before the learned Tribunal, and several decisions which have been cited have not been considered and dealt with, the learned Tribunal may be directed to hear and dealt with all such contentions afresh and passed a reasoned order by remanding the matter to the learned Tribunal and for that purpose, either appropriate time schedule be fixed or the petitioner may be directed to file an undertaking of expeditious hearing of the said request, i.e. application at Exhibit20. Learned advocate Mr. Gadhia has submitted list of decisions for the purpose of strengthening the request which has been made Page 13 of 37 C/SCA/5281/2018 ORDER and to substantiate his contentions which are enumerated hereinafter : (1) Oshiar Prasad & Ors. v. Employers in relation to Management of Sudamadih Coal Washery of M/s.
BCCL, Dhanbad, Jharkhand reported in 2015 (1) CLR
902. (2) Gujarat Kamdar Panchayat v. Maize Products & Anr. reported in 2002 II CLR 550.
(3) Apar Industries Ltd., v. Natwarsingh Naharsingh Sindha & Anr., reported in 2003(3) GLR 2701.
(4) Institute of Plasma Research v. Munniben Hiralal Solanki Special Civil Application No. 8683 of 2008 and allied matters dated 08.08.2017.
(5) Gujarat Alkalies and Chemicals Limited v. GACL Officers' Friends Association - Special Civil Application No. 797 of 2013 dated 22.03.2013.
(6) GACL Officers' Friends Association v. The Managing Director - Letters Patent Appeal No. 997 of 2013 dated 15.09.2014.
(7) Garrison Engineer (Utility) Bhatinda v. Narinder Singh reported in 2007(11) SCC 35.
(8) Arunagarwal v. Nagreeka Exports (P) Limited reported in 2002 (10) SCC 101.
(9) Special Civil Application No. 6106 of 1994 dated 25.10.2002.
4.7. Lastly, learned advocate Mr. Gadhia has drawn attention to a draft amendment which has been tendered indicating Page 14 of 37 C/SCA/5281/2018 ORDER explanation as to on account of which circumstance, the petition was required to be affirmed at Mehsana. A specific contention has been raised and several decisions were pointed out but the same have not been considered. Hence, ultimately, the request which has been made is to remand the proceedings with appropriate time schedule.
5. To meet with the stand taken by learned advocate Mr. Gadhia, learned advocate Mr. Amrish Patel appearing for respondent no. 1 has ultimately contended that the original application at Exhibit11 for appointment of Court Commissioner was also in prior point of time and therefore, there is no illegality which has been committed by the learned Tribunal. On the contrary, according to learned advocate Mr. Patel a systematic attempt is made to thwart the main issue and to see that a litigation can be prolonged and as such, this attempt may not be allowed to be encouraged. It has been further submitted that the conduct on the part of the petitioner is very much visible from the notes of the rojkam and by referring to some of the entries from the rojkam, learned advocate Mr. Patel has contended that this is not a fit case in which any extra ordinary jurisdiction be exercised. On the Page 15 of 37 C/SCA/5281/2018 ORDER contrary, the same would encourage the petitioner to linger the issue further. Learned advocate Mr. Patel has further contended that when hearing has taken place at Exhibit11 the same was participated without any protest by the petitioner and this challenge in the petition is an after thought measure and just with a view to delay the proceedings. Looking to the entries of the rojkam, learned advocate Mr. Patel has contended that the conduct of the petitioner is such which would disentitled the petitioner from equitable jurisdiction of this Court. It is settled position of law that when without any resistance participation has taken place in Exhibit11 proceedings then now to challenge and apprehends their jurisdictional issue is an after thought measure. It has been contended that on the contrary, it is a settled position of law that almost all the issues are to be dealt with simultaneously to be taken up together and further any issue which requires an element of inquiry of facts the same cannot be treated as preliminary issue and therefore, what has been observed by the learned Tribunal is just and proper. Learned advocate Mr. Patel has further contended that the petitioner has not come with the clean hands and again such kind of brief orders the petitioner has made an attempt to challenge. On the contrary, the petition itself is not Page 16 of 37 C/SCA/5281/2018 ORDER maintainable. Hence, whether the decisions which have been relied upon have been dealt with or not with the circumstance may not allow the petitioner to assail the order and invoke extra ordinary jurisdiction of this Court.
5.1. Learned advocate Mr. Patel has further contended and referred to the detailed reply which is submitted and has stated that this is not a different demand altogether. On the contrary, in a previous proceedings, one of the relief which has been prayed for precisely (B) of Special Civil Application No. 19953 of 2017, the said relief has also an issue pertaining to compliance of the provisions of Bonus Act and therefore, a bare reading of the said order dated 28.12.2017 reflecting on page 109 an impression is given clearly that the reference with respect to these reliefs have been made. As a result of this, this Court was persuaded to dispose of the petition and after the said disposal of the petition, now to come out with different version and made an attempt to convey that this was not the part and parcel of the issue of reference is a systematic design to deviate the employees. Learned advocate Mr. Patel has specifically contended in reply to the draft amendment that the petitioner has not shown their bona fides at least to inform the Court Page 17 of 37 C/SCA/5281/2018 ORDER about hearing of Exhibit11 which has already been commenced by the learned Tribunal and therefore, the petitioner has misdirected the Court from the core issue involved in the petition and hence the same be deprecated. It has further been alleged in the reply that deliberate attempt is made to hide this aspect from the Court and has not produced the relevant documents from page 98 - 147 . Further contention is raised that swearing of an affidavit of this petition is at Mehsana on 26.03.2018 and the same person was identified by the advocate for the petitioner in Ahmedabad and thereafter, the petition is being preferred on 02.04.2018 and therefore, this chronology of event is sufficient enough to smack down the bona fide of the petitioner. As a result of this, such an after thought challenge contained in the present proceedings cannot be entertained. In fact, according to learned advocate Mr. Patel when prior in point of time his application Exhibit11 was to be dealt with, the reply which has been submitted before the Tribunal has no reference about any of the contention including the contention of lack of jurisdiction and therefore, also this issue is nothing but a concoction and when the competent forum has adjudicated the defence of the petitioner, and the same is considered by the learned Tribunal and therefore, on the basis of mere presumption, the authority Page 18 of 37 C/SCA/5281/2018 ORDER may not interfered, and the extra ordinary jurisdiction of this Court may not be invoked.
5.2. Considering the aforesaid circumstances which are prevailing on record, more precisely the entires made in the rojkam, learned advocate Mr. Patel has contended that this dilatory tactics adopted by the petitioner to be curbed by dismissing the petition with exemplary costs. To substantiate his contention, learned advocate Mr. Patel has drawn attention of this Court to various documents which are contained in the present petition compilation and has requested the Court to dismiss the petition.
5.3. So far as alternative submission which has been made by learned advocate Mr. Gadhia for the petitioner, not much resistance is shown and the issue is left out to the Court. No other submissions have been made.
6. Having heard the learned advocates for the respective parties and having gone through the material on record, while exercising extra ordinary equitable jurisdiction, the following circumstances are not possible to be unnoticed by this Court Page 19 of 37 C/SCA/5281/2018 ORDER which are being unlisted hereinafter.
6.1. First of all it seems that the application which has been given about the maintainability of the main reference which is reflecting on page 87 of the petition compilation raises substantial grievance that a workmen were not the members of the respondent - Union, were not in the job is a fact which has been specifically asserted and rather admitted by the respondent Union and therefore, the contention was raised that since the workmen are no longer in service, a request for regularization cannot be gone into in view of the settled position of law propounded by several decisions.
6.2. It is emerging from the record that Exhibit11 application was submitted for the purpose of seeking the assistance of the Court Commissioner so as to allow the employees/workmen to resume the duties which indicates that the workmen were not in the services rightly or wrongly discontinued is not the present controversy in the petition, but in the said circumstance the preliminary issue which has been raised about the maintainability is touching to the very root of jurisdiction of the learned Tribunal. As a result of this, the following issue was Page 20 of 37 C/SCA/5281/2018 ORDER requested to be framed as a preliminary issue and to be dealt with :
"4.1. The present Reference (IT) No. 35/2017 seeking regularization is rendered infructuous in light of the assertion of the Union that the workers are not in job in view of the settled legal position."
6.3. Now it is the case of the learned advocate for the petitioner that to substantiate this contention, several decisions were relied upon and detailed submissions have been made, but the order indicates no discussion about it.
6.4. It is also emerging from the record that to deal with the aforesaid preliminary issue, a request is made vide application of the same date i.e. 02.02.2018 reflecting on page 91 to deal with the same, first instead of dealing at later point of time. Now this application was pressed by the petitioner before the learned Tribunal and requested to hear and dispose of in earlier point of time then Exhibit11 application and as such prima facie this issue relating to jurisdiction is inter linked between the request of the application Exhibit11 and requested to decide the preliminary issue about the jurisdiction as first in point of time and therefore, if the Tribunal lacks jurisdiction then there is no authority to deal with even Exhibit11 application and this Page 21 of 37 C/SCA/5281/2018 ORDER application raising preliminary issue appears to have been given before Exhibit11 application gets decided and, therefore this point of jurisdiction is touching to the very root of the proceedings. Now simultaneously, if this is to be read with the relevant entries mentioned in the rojkam which indicates that on 20.01.2018 application Exhibit11 appears to have been submitted and the same was postponed and adjourned for hearing on 25.01.2018. Further looking at the said entries contained in the rojkam indicates that on 25.01.2018 application Exhibit11 was postponed for the purpose of reply and hearing and therefore, it is quite clear that when the present application in question i.e. Exhibit20 and Exhibit21 were not submitted prior to decision of Exhibit11. Additionally on 02.02.2018 these applications appear to have been given at Exhibit20 and Exhibit21 and pressed for hearing at the earliest. Now, further entries of rojkam which were reflecting on page 103/A indicates that on 23.03.2018 there was an adjournment application given and then the matter was placed for reply and therefore, on that date it appears that no hearing has taken place. Even on 28.01.2018, learned advocate Mr. Patel was heard on the issue of Exhibit11 and thereafter on 06.04.2018 both the applications Exhibit11 and Exhibit28 Page 22 of 37 C/SCA/5281/2018 ORDER appears to have been postponed on account of writ being filed and therefore, what has been noticed from the rojkam that both the applications Exhibit11 and Exhibit28 are kept as it is and in a hurried manner on 16.02.2018 application Exhibit21 was dealt with and disposed of essentially by assigning reasons that Exhibit11 application for appointment of Court Commissioner was filed prior in point of time as per the record and therefore, that must be given predominance. Therefore, by applying the principle of "first come first go" the order came to be passed and directed to hear and dispose of Exhibit11 and Exhibit21 came to be rejected.
6.5. It is further emerging from the order that the learned Tribunal has noted down the position that it is undisputed position that the workers are not in the job and what has been prayed in Exhibit11 is appointment of Court Commissioner and allow the workers to resume the duties. Now on one hand undisputedly the workers are not on the job and therefore, there is a contention that the reference itself is not maintainable whereas on the other hand, while seeking regularization the Union is demanding to appoint the Court Commissioner and place all workers on job and as such looking to this if priority to Page 23 of 37 C/SCA/5281/2018 ORDER application Exhibit11 is to be given it is not understandable as to how any prejudice will be caused to the petitioner and further the point of jurisdiction can be raised at any point of time and here is a case in which jurisdictional issue is raised before Exhibit11 application is decided and therefore, it cannot be construed that it is an after thought measure of the petitioner and just to delay the proceedings. In fact, the chronology of rojkam indicates that there appears to be no attempt of that nature to delay the proceedings but even that issue also can be taken care of by directing learned Tribunal to hear and dispose of the jurisdictional issue at the threshold.
6.6. Further it appears that the delay contentions which have been raised have also not been given proper attention to and no subjective satisfaction appears to have been assigned. The sole request which appears to have been materially assigned is that the Court Commissioner application is first in point of time therefore, it should be dealt with first, irrespective of the fact whether the learned Tribunal has got the jurisdiction or not. This conclusion appears to be not in consonance with the very object of framing the preliminary issue and to decide the same at the earliest. Whether the point of jurisdiction to be tried first or not Page 24 of 37 C/SCA/5281/2018 ORDER can be seen by some of the observations made in the recent decision of the Apex Court in the case of S.N.D.P. Sakhayogam v. Kerala Atmavidya Sangham reported in 2017 (8) SCC 830 and the observations are to the effect that moment the attention is drawn to an issue of jurisdiction which is going on to the root of the case to be tried once it is brought to the notice of the Court. On the contrary, it is expected from the Court to take up the issue once it is brought to the notice of the Court. The relevant observations contained in the decision since are relevant deserves to be quoted hereinafter "18. Be that as it may, in our considered view, the issue of jurisdiction which goes to the root of the case, if found involved has to be tried at any stage of the proceedings once brought to the notice.
21. In our considered opinion, while deciding Issue No. 1, the Trial Court was expected to decide several material questions, namely whether the plaintiff, who is a jurisitic persons, i.e. "Society" is entitled to invoke the provisions of Order 1 Rule 8 of the Code for filing a suit in a "representative capacity". In other words, the Trial Court should have examined the question as to whether the expression "person" occurring in Rule 8 also includes "juristic person".
23. Since there was neither any discussion much less finding on any of the aforesaid issues by any of the Courts below though these questions directly and substantially arose in the case (Issue No. 1), we are of the considered opinion that it would be just and proper and in the interest of justice to remand the case to the Trial Court to answer these issues and then decide the suit depending upon the answer in accordance with law."
Page 25 of 37 C/SCA/5281/2018 ORDER 6.7. Yet another decision which has been brought to the notice of this Court is an order dated 14.02.2018 passed in Special Civil Application No. 61 of 2018 in which also an order of remand was passed in view of the fact that written submissions were not adequately dealt with and the decisions which were brought to the notice were not considered. Of course in that case after arguing for some time, a concurrence was arrived at between both the learned advocates accordingly the order of remand was passed.
6.8. Same view is reflecting from yet another decision dated 13.10.2017 passed in Special Civil Application No. 9493 of 2017 in which also earlier for want of consideration of some of the issues having not been dealt with an order of remand was passed on previous occasion that is curled out from the relevant observations contained in para 4.7 which are reproduced hereinafter.
"4.7. The above order dated 19.11.2016 (below application Exh.44) was challenged by the employer before this Court in Special Civil Application No.20743 of 2016 (page:71). Para:5 and 6 thereof (order dated 06.03.2017 reads as under.
"5. Number of contentions have been advanced assailing the impugned interim order. However, it may not be necessary to adjudicate upon the contentious Page 26 of 37 C/SCA/5281/2018 ORDER issue in a challenge to interim order in view of the fact that the Industrial Tribunal has passed the mandatory order for renewing the expired contract of all contractual employees only on the consideration referred to in para 17 of its order wherein it merely recorded the submissions of the employer that, even those employees whose contract was nearing completion have not been reporting or resuming the duties. After noting the said submission, it formed an opinion that, in cases where the contractual period is over, the contract is required to be renewed as the court is duty bound to ensure that no change in service conditions is effected during the pendency of the reference as required by Section 33 of the I.D. Act. No opportunity seems to have been given on the question as to whether in cases where the contract comes to an end, renewal could be ordered. Thus this Court, instead of admitting the matter and staying the proceedings, is of the opinion that the interest of justice would be served if the case is remanded to the Industrial Tribunal to give an opportunity to the parties only on the above point power of the court to order renewal of contract.
6. Accordingly, without adjudicating upon the merits of the case, the impugned order dated 19.11.2016 is quashed and set aside and the application Exh.44 is remanded to the Industrial Tribunal to reconsider the question as to whether renewal of the contract can be ordered under the I.D. Act. All other contentions raised in this petition are kept open and it will be open for the parties to raise such contention in appropriate proceedings after the decision is rendered by the Industrial Tribunal on the above point, before the appropriate forum. It is directed that the said point shall be decided by the Tribunal within 15 days from the date of receipt of writ of this Court and the parties will cooperate in the hearing of the matter."
6.9. Now in light of the aforesaid circumstances, and if the list of authorities which are pressed into services by the petitioner Page 27 of 37 C/SCA/5281/2018 ORDER side first decision which has been brought to the notice is decision of the Apex Court in the case of Oshiar Prasad & Ors., v. Employers in relation of Management of Sudamdih Coal Washery of M/s. BCCL, Dhanbad, Jharkhand reported in 2015(1) CLR 902 the relevant observations contained in para 23, 28 and 30 are to the effect that the Tribunal cannot travel beyond the terms of reference made to it and secondly the observations of regularization in service can be claimed only when the contract of employee substituted and is in force inter se between the employer and the employee and now these are the two very relevant issues which are touching to the root of jurisdiction of the Tribunal and in the context of this if undisputed position is to be kept in mind is that here is a case in which admittedly the workers were not in the job and further if the reference is to be seen, reflecting on page 78, is indicating about the relief whether can be granted or not is an issue raised at first point of time as the reference itself is not maintainable according to the petitioner. So this question of jurisdiction is not so lightly to be shunted for looking to the prevailing position on record. Hence, the point of jurisdiction once raised, noticed by the Court, the same is to be dealt with instead of applying any principle like "first come first go". The relevant observations in Page 28 of 37 C/SCA/5281/2018 ORDER para 23 and 28 of the aforesaid decisions are reproduced hereinafter:
"23. The same issue came up for consideration before three Judge Bench in a case Pottery Mazdoor Panchayat vs. Perfect Pottery Co. Ltd. and Another, 1979 3 SCC 762. Justice Y.V. Chandrachud the learned Chief Justice speaking for the Court laid down the following proposition of law:
"10. Two questions were argued before the High Court: Firstly, whether the tribunals had jurisdiction to question the propriety or justification of the closure and secondly, whether they had jurisdiction to go into the question of retrenchment compensation. The High Court has held on the first question that the jurisdiction of the Tribunal in industrial disputes is limited to the points specifically referred for its adjudication and to matters incidental thereto and that the Tribunal cannot go beyond the terms of the reference made to it. On the second question the High Court has accepted the respondent's contention that the question of retrenchment compensation has to be decided under Section 33C(2) of the Central Act.
11. Having heard a closely thought out argument made by Mr. Gupta on behalf of the appellant, we are of the opinion that the High Court is right in its view on the first question. The very terms of the references show that the point of dispute between the parties was not the fact of the closure of its business by the respondent but the propriety and justification of the respondent's decision to close down the business. That is why the references were expressed to say whether the proposed closure of the business was proper and justified. In other words, by the references, the Tribunals were not called upon by the Government to adjudicate upon the question as to whether there was in fact a closure of business or whether under the pretence of closing the business the workers were locked out by the management. The references [pic]being limited to the narrow question as to whether the closure was proper and justified, the Tribunals by Page 29 of 37 C/SCA/5281/2018 ORDER the very terms of the references, had no jurisdiction to go behind the fact of closure and inquire into the question whether the business was in fact closed down by the management."
28.It is a settled principle of law that absorption and regularization in the service can be claimed or/and granted only when the contract of employment subsists and is in force inter se employee and employer. Once it comes to an end either by efflux of time or as per the terms of the Contract of employment or by its termination by the employer, then in such event, the relationship of employee and employer comes to an end and no longer subsists except for the limited purpose to examine the legality and correctness of its termination. "
6.10. Yet another decision which has been brought to the notice is that of the coordinate bench of this Court in the case of Apar Industries Ltd., v. Natwarsinh Naharsinh Sindha & Anr., reported in 2003(3) GLR 2701 has categorically observed and decided that the preliminary issue if pertains to jurisdiction the same deserves to be decided as preliminary issue. Of course, in that particular case the evidence was led and therefore, it has left upon the Court as an academic issue, but the relevant observations regarding this cannot be overlooked by this Court.
6.11. Yet another decision which has been brought to the notice is a decision dated 08.08.2017 taken in a group of decision headed by Special Civil Application No. 8683 of 2008 and by Page 30 of 37 C/SCA/5281/2018 ORDER referring to para 5 a contention is raised which is noted down by the Court that after the termination of services of the concerned claimant, the reference became infructuous. The detailed discussion with regard to it is contained in para 5 onwards.
"5. In this background, it is appropriate to first take into account the dispute involved in Reference (LCAD) No.134 of 1996.
5.1 As mentioned above, by virtue of order in the said reference, the appropriate government referred the dispute related to the claim of the workmen for regularization in service and that whether the claimants should be treated as employees of the institute and not of the contractor and upon regularization in service, whether they should be paid wages and other benefits on par with regular employees of the institute. The said demand / claim was subject matter of the terms of reference in reference (LCAD) No.134 of 1996.
5.2 However, during pendency of the said reference, the service of the workmen concerned in Reference (LCAD) No.134 of 1996 were terminated. The service of the said concerned workmen came to be terminated some wherein 2002. Consequently, the said demand (for regularisation in service) would, as such, not survive. The said demand was rendered infructuous (on account of termination of service of concerned claimants). Therefore, ordinarily, the said matter (related to claim for regularization) would have rested there and ought to have been closed.
5.3 Despite such fact, the learned Labour Court proceeded to adjudicate the Reference (LCAD) No.134 of 1996. The said award rejecting Reference (LCAD) No.134 of 1996 is challenged by the workmen as well as by the institute.
5.4 Of course, the institute has restricted its challenge Page 31 of 37 C/SCA/5281/2018 ORDER to the decision in respect of above mentioned two preliminary objections raised by it.
5.5 Having regard to the fact that the service of the claimants have been terminated and even the reference wherein the dispute related to termination of service was referred is also decided against the workmen, the reference as well as award in reference (LCAD) No.134 of 1996 are, actually, rendered infructuous and the said claim actually does not survive after termination of service of the claimants. 5.6 Therefore, so far as the petition filed by the claimants against the reference (LCAD) No.134 of 1996 is concerned, the same deserves to be disposed of on the ground that the dispute i.e. the claim/ demand for regularization in service does not survive after termination of service of concerned workmen/ claimants. Consequently, the challenge against the award rejecting the demand for regularisation does not survive and is rendered infructuous. Thus, said Special Civil Application No.10500 of 2008 (which is filed by the institute) and the Special Civil Application No.3780 of 2008 which is filed by the union against Reference (LCAD) No.134 of 1996 are disposed of accordingly.
6.12. Yet another decision which has been relied upon is the decision delivered by the Division Bench of this Court decided on 15.09.2014 in Letters Patent Appeal No. 997 of 2013 in which also it was directed by this Court that the Tribunal shall decide the preliminary issue as to whether the members of Union can be termed as workmen or not.
6.13. The learned advocate for the petitioner has further drawn Page 32 of 37 C/SCA/5281/2018 ORDER attention of this Court to one another decision delivered by the Apex Court in the case of Garrison Engineer (Utility) Bhatinda v. Narinder Singh reported in 2007 (11) SCC 35 in which also the learned Presiding Officer, Labour Court has not dealt with the material issue and analysing the same, in proper manner, the matter was remitted to the Labour Court for deciding the objection. The relevant observations contained in para 7 quoted hereinafter:
"7.From perusal of the orders of the Labour Court and the High Court,it is noticed that the factual position has not been analyzed in detail and abrupt conclusion has been arrived at. Additionally, the legal issue regarding maintainability of the reference was not considered. Right from the beginning of the proceedings before the Labour Court, and in the High Court, appellant had taken specific plea that the Act was not applicable to it and it was not an industry. Unfortunately, as noted above, neither the Labour Court nor the High Court dealt with this issue."
6.14. Yet another decision which has been brought to the notice is a decision of the Apex Court in the case of Arunagarwal v. Nagreeka Exports (P) Limited reported in 2002 (10) SCC 101 in which also almost similar issue was centering the controversy and the matter was remanded for the purpose of considering the point of jurisdiction as a preliminary issue in which the Apex Court has set aside the order and directed to decide the relevant the issue. The observations contained in para 3 is reproduced Page 33 of 37 C/SCA/5281/2018 ORDER as under
"3. Heard learned counsel for the parties. We are of the view that the question regarding the jurisdiction of the Court was required to be decided as a preliminary issue. We, therefore, set aside the order under challenge and send the case back to the High Court to decide the question of jurisdiction of the Court as a preliminary issue. The order passed by the High Court directing the defendant appellant to furnish security for a sum of Rs.55 lakhs by way of bank guarantee shall remain suspended till the said question pertaining to jurisdiction of the Court is decided by the High Court. In case, it is held by the High Court that the Court has jurisdiction, the direction to furnish security for a sum of Rs.55 lakhs shall come into operation."
6.15. Yet another decision which has been brought to the notice is of the Apex Court in the case of P.R. Catering Company & Anr., v. Oil and Natural Gas Corporation Limited and Ors., reported in (2008) 5 SCC 272, which is with regard to non dealing of the contention and the matter was remanded for fresh consideration. The relevant observations contained in head note are as under : "Challenged by the respondent on the grounds of non reading of material evidence by arbitrator as also the suppression of material evidence by the appellant before the arbitrator, the High Court's order in setting aside the award and remanding the case back to arbitrator for its fresh disposal in the light of material documents earlier ignored by arbitrator, confirmed."
6.16. There are several other two to three cases which have been been brought to the notice are also taken into consideration by Page 34 of 37 C/SCA/5281/2018 ORDER this Court while coming to the ultimate conclusion, but the sum and substance that whatever is brought to the notice of the Court that there is a inherent lack of jurisdiction of the forum where the main proceedings are pending then the said issue is given predominance and therefore, it is not possible to digest the main reason which has been assigned by the learned Tribunal that it should be dealt with the principle of 'first come first go'. A conjoint reading of the aforesaid position of law which is prevailing and the record which is available of cases on hand would lead to a conclusion that the learned Tribunal appears to have evasively decided the issue and the request of the petitioner, no proper justification is reflecting and all these decisions which are brought to the notice reflecting in para 4 of the impugned order have not been dealt with at all though these decisions were of Apex Court and this Court. Non dealing of these binding decisions is also a circumstance which would warrant remand of the present proceedings on the principle of judicial discipline.
7. For the foregoing reasons, the order dated 16.02.2018 is not possible to be sustained and deserves to be quashed and set aside with a consequential direction to decide afresh. However, Page 35 of 37 C/SCA/5281/2018 ORDER with a view to see that no further delay can take place at the request of the learned advocate for the petitioner, sometime schedule be prescribed so as to see that no prejudice can be caused to either side. Hence, the present petition deserves to be allowed with a consequential direction in the following form:
7.1. The order dated 16.02.2018 passed below Exhibit21 is quashed and set aside and consequentially it is directed that the said application Exhibit21 shall be decided afresh by considering all the relevant submissions of both the sides and after dealing with the decisions which are brought to the notice of the Tribunal and shall pass a reasoned order. The aforesaid exercise of deciding Exhibit21 application shall be undertaken within a period of 4 weeks from the date of receipt of writ of this order and the Tribunal is directed to decide the same afresh without being influenced by the impugned order which has been set aside and it is expected that in close compliance of principles of natural justice after giving adequate opportunity of hearing to both the side and after considering the relevant submissions and the decisions a reasoned order be passed.
7.2. Since the matter is remanded the Court has not expressed Page 36 of 37 C/SCA/5281/2018 ORDER any opinion on merits and it has independently left is open to the Tribunal to take a fresh decision.
(A.J. SHASTRI, J) /phalguni/ Page 37 of 37