IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : SERVICE MATTER. Through : Mr.Harvinder Singh with Ms. Sonia Khurana, Advs.

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : SERVICE MATTER Writ Petition (C) No.5260/2006 Reserved on : Date of decision : IN THE MATTER OF : RAM AVTAR...Petitioner Through : Mr.Harvinder Singh with Ms. Sonia Khurana, Advs. Versus M/S DELHI FLOUR MILLS CO. LTD....Respondent Through : Mr.Rajender Goyal, Adv. with Mr. G.P. Garg, Legal Officer of the Company. HIMA KOHLI, J. : The present writ petition has been filed by the petitioner praying inter alia for quashing of the impugned order dated passed by the Labour Court, whereunder it allowed an application filed by the respondent/management subject to payment of costs of Rs.600/- to the petitioner, and directed that the issue No.1, pertaining to the question as to whether the petitioner was a workman or not, was to be decided first with reference to other issues. WP(C) No.5260/2006 Page No.1 of 15

2 2. The dispute between the parties lies in a narrow compass. It is the case of the petitioner that his services were terminated by the respondent/management on after conducting two enquiries against him. Claiming that the said termination was illegal and unjustified, the petitioner raised an industrial dispute which was referred to the Labour Court. Based on the pleadings of the parties, the following issues were framed by the Labour Court on : 1. Whether employee/claimant is not a workman as alleged in preliminary objection of W.S.? 2. Whether the reference is bad as alleged in preliminary objections 3,4 & 5 of the W.S.? 3. Whether the two enquiries conducted by management were legal, justified and according to the principle of natural justice? 4. Per terms of reference. 3. It was ordered that issue No.3 be treated as a preliminary issue, on which both parties led their evidence and, vide order dated , the Labour Court decided the preliminary issue against the respondent/management by holding that both the enquiries were vitiated on the ground that the enquiries were not fair and proper and were not held in accordance with the principles of natural justice. However, the WP(C) No.5260/2006 Page No.2 of 15

3 respondent/management was allowed to prove the charges leveled against the petitioner and also to adduce evidence on other issues. 4. Thereafter, the respondent/management moved an application dated before the Labour Court for treating Issue no.1 as to whether the petitioner was a workman, as a preliminary issue. After hearing both the parties on the said application, by placing reliance on the judgment of the Supreme Court in the case of Hussun Mithu Mhasvadkar v. Bombay Iron & Steel Labour Board, reported as 2001 LLR (SC) 1083, the Labour Court held that the plea raised by the management to the effect that the petitioner was not a workman within the meaning of Section 2(s) of the Industrial Dispute Act, 1947 (hereinafter referred to as the Act ), related to the jurisdiction of the Labour Court in deciding the matter and went to the root of the matter, and that if the said issue was decided against the petitioner and in favour of the respondent/management, then no useful purpose would be served in adjudicating on the other issues. Accordingly, by the impugned order dated , the application of the respondent/management was allowed subject to costs of Rs.600/-. 5. Counsel for the petitioner stated that the Labour Court grievously erred in relying upon the two Judge Bench decision of the Supreme Court in the case of Hussun Mithu Mhasvadkar (supra), for WP(C) No.5260/2006 Page No.3 of 15

4 framing another preliminary issue as to whether the petitioner was a workman within the meaning of Section 2(s) of the Act. It was submitted that the Labour Court not only misread the said judgment but also failed to consider the ratio laid down by a three Judge Bench of the Supreme Court in an earlier case of D.P.Maheshwari v. Delhi Administration & Ors., reported as 1996 LLR 919. Counsel for the petitioner relied heavily on the observations made by the Supreme Court in the aforesaid case in support of his contention that the Labour Court ought to decide all the issues in dispute at the same time, without trying some of them as preliminary issues, in order to avoid delay and injustice. In this context, he also referred to the following judgments: i. National Council for Cement and Building Materials v. state of Haryana, 1996 II LLJ 125 (SC) ii. Management of Dhenkanal Urban Cooperative Bank Ltd. v. Presiding Officer, Labour Court, Bhubaneshwar and Anr., 1998 Lab. I.C (Orissa) 6. It was urged that there was no conflict between the judgments in the cases of D.P. Maheshwari (supra) and Hussun Mithu Mhasvadkar (supra), but even assuming that the subsequent two Judge Bench decision was inconsistent with the earlier three Judge Bench decision, the same would be rendered per incuriam as the law declared by a larger bench in WP(C) No.5260/2006 Page No.4 of 15

5 D.P. Maheshwari s case was not considered at all in the latter two Judge Bench decision. 7. Lastly, it was submitted that whether the petitioner was a workman or not was a mixed question of law and fact and that whenever such mixed questions of facts and law arise, such issues cannot be dealt with as preliminary issues as it is necessary to adduce evidence for deciding such issues. In support of his averment, counsel for the petitioner relied on the judgment rendered by the Supreme court in the case of Ramesh B. Desai and Ors. v. Bipin Vadilal Mehta and Ors., reported as (2006) 5 SCC On merits, counsel for the petitioner emphasized on the fact that while issue No.3 regarding the validity of the enquiry was treated as a preliminary issue at the request of the respondent/management, but at that time, the respondent/ management did not make a request for treating issue No.1 regarding the status of the petitioner as a preliminary issue, and therefore it was not appropriate for the Labour Court to have allowed such a request made almost after 8 years from the date of reference. 9. Countering the arguments advanced on behalf of the petitioner, counsel for the respondent/management contended that the writ petition suffers from delay as it has been filed nine months after the passing of the impugned order by the Labour Court, and during the said period and even WP(C) No.5260/2006 Page No.5 of 15

6 thereafter, no evidence was led by the petitioner on the preliminary issue despite the fact that the proceedings of the Labour Court have not been stayed by this Court. It was stated that since the petitioner has not made out any grounds to show that the Labour Court had failed to exercise jurisdiction or committed any error of law or violated the principles of natural justice while passing the impugned award, therefore, there is no reason for this Court to exercise its powers of judicial review in favour of the petitioner. 10. Counsel for the respondent/management supported the impugned order and stated that it is based on the law as enunciated by the Supreme Court in various judgments that the issue of workman is a jurisdictional issue and goes to the root of the matter, and therefore ought to be decided at the preliminary stage itself. Reliance in this regard was placed on the following judgments : i. Kirloskar Brothers Ltd. v., Its workmen, 1962 LLJ (II) 782 SC ii. Hira Sugar Employees Co-operative Consumers Store Ltd. v. P.P. Korvekar, 1995 (70) FLR 914(Karnataka) iii. Hussun Mithu Mhasvadkar (supra) 11. As regards the argument raised on behalf of the petitioner that even if there is a conflict between the law laid down by the Supreme Court WP(C) No.5260/2006 Page No.6 of 15

7 in the cases of Hussun Mithu Mhasvadkar(supra) and D. P Maheshwari (supra), the judgment in Hussun Mithu Mhasvadkar(supra) which is later in date would be per incuriam for the reason that an earlier judgment of D.P. Maheshwari s case (supra) was not considered in it, counsel for the respondent/management urged that it is impermissible for the High Court to overrule a decision of the Apex Court on the ground that the Supreme Court laid down a legal position without considering any other point. Reference was made to the judgment in the case of Suganthi Suresh Kumar v. Jagdeeshan, reported as (2002) 2 SCC 420. In the alternative, it was submitted that since the law enunciated in the said cases is contrary, therefore Hussun Mithu Mhasvadkar's case (supra) being later in date, would be deemed to have impliedly overruled the law laid down in D.P. Maheshwari s case (supra). 12. The only question that falls for consideration of this Court is as to whether the Labour Court ought to have allowed the application of the respondent/management for treating the issue of the petitioner being a 'workman' or not within the meaning of Section 2(s) of the Act by relying on the judgment in the case of Hussun Mithu Mhasvadkar (supra). 13. In the case of Hussun Mithu Mhasvadkar (supra), the Labour Court had tried all the issues together by recording the evidence of the WP(C) No.5260/2006 Page No.7 of 15

8 parties on the same and then rejected the reference on the ground that the management therein was not an industry within the meaning of Section 2(j) of the Act and since the 'workman' therein was not employed in an 'industry', he could not fall within the definition of 'workman'. In this context the Supreme Court held that in a case of such a nature where the Labour Court and the High Court entertained doubts about the status of the applicant therein as `workman', instead of deciding the larger issue as to whether the respondent/management therein was an industry or not, the Labour Court should have first decided the issue as to whether the petitioner therein was a workman or not, because had the said finding been returned against the petitioner therein, then the matter could have rested there itself. Thus, the question as to whether the status of the claimant has to be necessarily framed and decided as a preliminary issue, did not arise for consideration at all. 14. In the present case, however, the issue with regard to the legality and validity of the two enquiries has already been decided by the Labour Court as a preliminary issue in the year 2003 and thereafter, the case was adjourned for recording the evidence of the respondent management to prove the charges as also other remaining issues. After waiting for a period of almost one and a half years or so, the respondent/management moved an application on 10 th December, 2004 for treating the issue No.1, as to whether WP(C) No.5260/2006 Page No.8 of 15

9 the petitioner was not a `workman', as a preliminary issue. The factual matrix of the case reveals that the petitioner was dismissed from service in the year 1994, aggrieved by which a dispute was raised and referred to the Labour Court in the year 1996, on which the issues were framed in the year 1998 and a period of five years were spent on deciding the issue No.3, which was treated as a preliminary issue. 15. In view of the aforesaid facts, the Labour Court ought to have rejected the subsequent application of the respondent/ management for treating issue No.1 as a preliminary issue and proceeded to adjudicate on the entire dispute rather than treating issue No.1 as a preliminary issue. The Labour Court ought to have posed to itself the question as to whether such threshold part adjudication by treating issue No.1 as a preliminary issue was really necessary in the facts and circumstances of the case. It is not disputed by the respondent/management that though it had requested for treating the issue of `workman' as a preliminary issue in its written statement, but when the court decided to treat issue No.3 pertaining to the enquiry as a preliminary issue, the respondent/management did not raise any objection, nor did it press its case for treating the issue of the petitioner being a `workman' or not under under Section 2(s) of the Act as a preliminary issue. After a lapse of about eight years, the application filed by the WP(C) No.5260/2006 Page No.9 of 15

10 respondent/management praying inter alia for treating issue No.1 as a preliminary issue can only be treated as an attempt on its part to drag the matter by resorting to devices which would result in inordinate delay in deciding the industrial dispute, to the detriment of the petitioner and to its own advantage. 16. It is in the aforesaid context that the judgment rendered by the Supreme Court in the case of D.P.Maheshwari (supra) assumes importance. While bemoaning the unbecoming devices adopted by certain employers to avoid a decision in an industrial dispute on merits, the Supreme Court took notice of the fact that various preliminary objections were raised by the employers inviting decisions thereon in the first instance and then carried the matter in appeal to the High Court and Supreme Court, thus delaying a decision on the real dispute for years together. In this context, the following observations made by the Supreme Court are relevant:...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 WP(C) No.5260/2006 Page No.10 of 15

11 them as preliminary issues. Nor should High Courts in the exercise of their jurisdiction under Article 226 of the Constitution stop proceedings before a Tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the High Court under Article 226 of the Constitution nor the jurisdiction of this Court under Article 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from Court to Court for adjudication of peripheral issues, avoiding decision on issues more vital to them. Article 226 and Article 136 are not meant to be used to break the resistance of workmen in this fashion. Tribunals and Courts who are requested to decide preliminary questions must therefore ask themselves whether such threshold part-adjudication is really necessary and whether it will not lead to other woeful consequences. After all tribunals like Industrial Tribunals are constituted to decide expeditiously special kinds of disputes and their jurisdiction to so decide is not to be stifled by all manner of preliminary objections journeyings up and down... (emphasis added) 17. The aforesaid observations of the Supreme Court were reiterated in the judgment rendered in the case of National Council for Cement and Building Materials (supra) and while dealing with the issue about the management therein being an `industry' within the meaning of the Act or not, the Supreme Court observed as below: WP(C) No.5260/2006 Page No.11 of 15

12 12. 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. xxx 16. The facts in the instant case indicate that the appellant adopted the old tactics of raising a preliminary dispute so as to prolong the adjudication of industrial dispute on merits. It raised the question whether its activities constituted an 'Industry' within the meaning of the Industrial Disputes Act and succeeded in getting a preliminary issue framed on that question. The Tribunal was wiser. It first passed an order that it would be heard as a preliminary issue, but subsequently, by change of mind, and we think rightly, it decided to hear the issue along with other issues on merits at a later stage of the proceedings. It was at this stage that the High Court was approached by the appellant with the grievance that the Industrial Tribunal, having once decided to hear the matter as a preliminary issue, could not change its mind and decide to hear that issue along with other issues on merits. The High Court rightly refused to intervene in the proceedings pending before the Industrial Tribunal at an interlocutory stage and dismissed the petition filed under Article 226 of the Constitution. The decision of the High Court is fully in consonance with the law laid down by this Court in its various decisions referred to above and we do not see any occasion to interfere with the order passed by the High Court. The WP(C) No.5260/2006 Page No.12 of 15

13 appeal is dismissed, but without any order as to costs. (emphasis added) 18. In the case of Management of Dhenkanal Urban Cooperative Bank Ltd. (supra), while referring to the principles embodied in Order XIV Rule 2 of the Code of Civil Procedure, it was reiterated by the Supreme Court that there was a time when it was thought prudent to decide preliminary issues first but as time passed, the said policy was reversed and it is now thought to be appropriate and desirable that all the issues should be tried together to avoid inconvenience to the parties. The Court observed as below: Para 5:...Where a dispute exists on a factual aspect as to whether a particular person is a workman or not, it is not for the Tribunal or the Court to determine that question as a preliminary issue. In the case at hand while the petitioner states that the opposite party No.2 employee was not a workman, a dispute is raised as to the correctness of such stand by the said opposite party to be adjudicated on factual aspects. The objection raised prima facie cannot be said to be of such nature as to be decided as a preliminary issue. That being the position, the Presiding officer, Labour Court was justified in directing that all the issues are to be taken up together Thus, it cannot be said that there is any conflict between the judgments of the Supreme Court in the cases of D.P.Maheshwari (supra) and Hussun Mithu Mhasvadkar (supra) as contended by the parties nor can it be WP(C) No.5260/2006 Page No.13 of 15

14 said that the judgment rendered in the case of Hussun Mithu Mhasvadkar (supra) would be per incuriam in the light of the law laid down by the Supreme Court in the case of D.P.Maheshwari (supra) for the reason that the judgment in the case of Hussun Mithu Mhasvadkar (supra) was rendered in the peculiar facts and circumstances of the said case wherein the Supreme Court was confronted with a case where the Labour Court was called upon to adjudicate both the issues, one relating to the appellant therein being a `workman' or not and the other relating to the respondent/management being an `industry' or not, under the Act. In such circumstances, it was observed by the Supreme Court that the limited issue of the appellant being a `workman' or not, ought to have been addressed by the Labour Court in the first instance, instead of deciding the larger issue of the respondent being an `industry' or not, for the simple reason that deciding the issue of the respondent/management being an `industry' or not, had much larger ramifications. There is no such predicament which was faced by the Labour Court in the present case, more so, when the issue No.3 with regard to the validity of the two enquiries had already been treated as a preliminary issue and decided against the respondent/management. Further, the issue as to whether the petitioner is a `workman' or not cannot be said to be a pure question of law. The same is a mixed question of facts and law which would WP(C) No.5260/2006 Page No.14 of 15

15 require leading of evidence by the parties and in such a situation where mixed issues of law and facts need to be decided, then instead of trying the same as a preliminary issue, the Labour Court ought to have proceeded to try all the issues and decide the industrial dispute itself. 20. In view of the aforesaid observations, the writ petition succeeds. The impugned order dated 20 th July, 2005 passed by the Labour Court is set aside. The Labour Court is directed to decide all the issues in the industrial dispute collectively without losing any further time. There shall be no orders as to costs. Sd/- ( HIMA KOHLI ) JUDGE WP(C) No.5260/2006 Page No.15 of 15