IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 7.1.2010 CORAM THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM W.P.No.18896 of 2009 & M.P.No.1 of 2009 The Management of Veejay Lakshmi Engineering Works Ltd., Sengalipalayam, N.G.G.O. Colony Coimbatore 641 022 .. Petitioner Vs 1.The Presiding Officer Labour Court, Coimbatore. 2.V.N.Sarangapani .. Respondents PRAYER: Writ petition filed under Article 226 of the Constitution of India praying for a writ of Mandamus directing the first respondent to decide the issue as to whether the second respondent herein is a "workman or not" under Section 2(s) of the Industrial Disputes Act as a preliminary as per his diary dated 23.7.2009. For Petitioner : Mr.S.Jayaraman For Respondents: Mr.K.V.Shanmuganathan for R2 No Appearance for R1 O R D E R The prayer in the writ petition is to issue a writ of mandamus directing the 1st respondent/Labour Court to decide the issue as to whether the 2nd respondent is a workman or not under Section 2(s) of the Industrial Disputes Act as a preliminary issue. According to the petitioner, the 2nd respondent was dicharged from service which is now the subject matter of an industrial dispute before the 1st respondent in I.D.No.22 of 2000. 2. According to the management, the 2nd respondent is not a workman and accordingly had raised a preliminary objection by filing a memo dated 23.7.2009. In the said memo it was contended that the management should be permitted to adduce evidence on the preliminary issue. Accordingly the management has also examined certain witnesses and produced as many as 21 documents. An interlocutory application was filed in I.A.No.700/2005 by the management stating that both the parties should be heard on the preliminary issue. https://hcservices.ecourts.gov.in/hcservices/ 3. A counter statement has been filed and a request was made to the Labour Court to reopen the case for advancing certain arguments. A memo has been filed by the management on 20.9.2005 praying that orders may be passed on the issue of Section 2(s) of the Industrial Disputes Act. This memo is said to have been recorded by the Labour Court. The management also relied on certain decisions in support of their contention that the Labour Court is equally empowered to decide the preliminary issue. However by the diary order dated 8.9.2009, Labour Court directed the management to proceed on the other issues also simultaneously. Aggrieved by the said diary order, the present writ petition has been filed. 4. A counter has been filed by the 2nd respondent contending that if a piecemeal hearing is given, the workman would be put to harassment and the case is of the year 2000 and it is appropriate for the Labour Court to proceed with all issues and to pass a final award after hearing the parties. Further, the respondent placed reliance on the decision of the Hon'ble Supreme Court in National Council for Cement and Building Materials Vs. State of Haryana and others reported in 1996(2) L.L.N.49. In the said case, the appellant raised a 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. Subsequently, the Tribunal in the said case directed the parties to proceed all other issues on merits. This came to be questioned by the management as being unsustainable. The High Court which heard the writ petition dismissed the same and directed the Labour Court to proceed on all issues. When the correctness of the order of the High Court was assailed before the Hon'ble Supreme Court in the above matter, the Hon'ble Supreme Court held as follows: "16.The facts in the instance case indicate that the appellant adopted the old tactics of raising a preliminary dispute so as to prolong the adjudication of the 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 Art.226 of the Constitution. The decision of the High Court is https://hcservices.ecourts.gov.in/hcservices/ 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 appeal is dismissed, but without any order as to costs." Thus considering the above legal principle, in my opinion, if the facts of the present case are looked into, it is also an identical case, in which the labour Court allowed the parties to lead evidence and mark documents on the preliminary issue. Subsequently, taking into account that the case is pending on the file of the Labour Court for over nine years, the Labour Court directed that, apart from the preliminary issue, the parties can also agitate the matter on its merits. 5. In my view there is no error in the approach of the Labour Court, since this would bring out an early resolution of the dispute. That apart, the Hon'ble Supreme Court has also held in similar circumstances that the High Court was fully justified in rejecting the claim of the management. The learned counsel for the petitioner placed reliance on the judgment of the Hon'ble Supreme Court in Hussain Mithu Mhasvadkar Vs. Bombay Iron and Steel Labour Board and another reported in 2001-II-LL.J page 520, in support of his contention. 6. Firstly it is to be noted that before the Hon'ble Supreme Court in the case of Hussain Mithu Mhasvadkar, earlier judgement of the Hon'be Supreme Court in National Council for Cement and Building Materials Vs. State of Haryana and others reported in 1996(2) L.L.N.49, as referred supra was not placed for its consideration. Further the Hon'ble Supreme Court was considering a large issue as to whether the Bombay Iron and Steel Labour Board would fall within the definition of "industry" within the meaning of Section 2(j) of the Act as well. That apart the appeal before the Hon'ble Supreme Court was against final orders passed by Labour Court which came to be confirmed by a learned Single Judge of Hon'ble Division Bench of the Bombay High Court. However, the facts of the present case are different and the writ petition has been filed after a diary order was passed by the Labour Court. Therefore, I find that the judgment of the Hon'ble Supreme Court does not render much assistance to the petitioner's contention. On the other hand the facts of the case in the case of National Council for Cement, which was decided by the Hon'ble Supreme Court is identical and hence I am of the view that, this judgment would be equally applicable to the facts of the present case. 7. Hence for the above reasons, the writ petition cannot be entertained at this stage. It is made clear that the Labour Court shall decide the preliminary issues as first among the several issues to be framed and the parties to the proceedings shall be entitled to lead evidence on the other issues namely on the merits https://hcservices.ecourts.gov.in/hcservices/ of the claim raised by each of them. With these observations, the writ petition is dismissed. Consequently, connected miscellaneous petition is closed. No costs. jvm Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To The Presiding Officer Labour Court, Coimbatore. + 1 cc to Mr. S. Jayaraman, Advocate SR No.1436 + 1 cc to Mr. K.V. Shanmuganathan, Advocate SR No.1577 W.P.No.18896 of 2009 & M.P.No.1 of 2009 PA(CO) SR/27.1.2010 https://hcservices.ecourts.gov.in/hcservices/