IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.01.2008 CORAM: THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN and THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Writ Appeal No.3912 of 2003 The Management of Theosophical Society Adyar Chennai-600 020. Appellant vs. 1. The Workmen of Theosophical Society Adyar, Chennai rep. by the Theosophical Society Workers' Union through its Secretary. 2. The Presiding Officer II Additional Labour Court Chennai. Respondents PRAYER: Writ Appeal under Clause 15 of the Letters Patent against the order of the learned single Judge of this Court dated 26.8.2003 in W.P.No.23221 of 2002 petition presented under Article 226 of the Constitution of India to issue a Writ of Certiorari to call for the records relating to the order of the second respondent dated 23.04.2002 made in IA.No.209 of 2000 in ID.No.333 of 1991 and quash the same. For appellant : Mr.Sanjay Mohan For 1st respondent : Mr.S.Arunachalam JUDGMENT (Judgment of the Court was delivered by K.RAVIRAJA PANDIAN,J.) The writ appeal is filed against the order of the learned single Judge dated 26.08.2003 made in W.P.No.23221 of 2002, whereby, the learned single Judge non-suited the appellant, who sought for the relief of setting aside the order of the Labour Court dated 23.04.2002 made in I.A.No.209 of 2000 in I.D.No.333 of 1999, whereby the labour Court refused to decide the issue whether the appellant is an 'industry' as https://hcservices.ecourts.gov.in/hcservices/ defined in section 2(j) of the Industrial Disputes Act, as preliminary issue. 2. Learned single Judge also, while rejecting the writ petition, has observed that at best, the issue as regards the question whether the petitioner/appellant would fall within the definition of "industry" as defined under Section 2(j) of the Industrial Disputes Act, could be formulated as the first issue along with other issues, and the Labour Court, while considering all other issues, could decide the issue as to the character of the appellant first and, if the Labour Court comes to the conclusion that the appellant is an "industry" as defined under the Industrial Disputes Act, could proceed further in respect of the other issues. That order is assailed in this appeal. 3. Mr.Sanjay Mohan, learned counsel appearing for the appellant, submitted that although there are series of judgments of the Supreme Court that the Labour Court shall decide all the issues in dispute at the same time without trying some of them as preliminary issues, the latest trend of the Supreme Court is in reversal of the earlier, which is evident from the judgment of the Supreme Court in Hussain Mithu Mhasvadkar v. Bombay Iron & Steel Labour Board, (2001) 7 SCC 394. Thus the issue whether the appellant is an 'industry' under section 2(j) of the Industrial Disputes Act has to be decided as preliminary issue without gathering evidence in respect of other issues. On that premise he argued for quashing the order of the learned single Judge. In order to support his submission, he submitted that the appellant was twice considered by this Court as not an 'industry' as defined under section 2 (j) of the Act, but a later Bench considered otherwise. So, the consideration of the character of the appellant assumes significance. 4. Learned counsel for the respondent argued for sustaining the order of the learned single Judge. 5. We heard the learned counsel on either side and perused the materials available on record. 6. Even in the contention made on behalf of the appellant, it has been accepted that the view of the Supreme Court in the long line of judgments is that the Tribunal or Labour Court, entrusted with the task of adjudicating the 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 the High Courts, in exercise of their jurisdiction under Article 226 of the Constitution of India should stall the proceedings before a Tribunal so that the preliminary issue may be decided. The jurisdiction under Article 226 of the Constitution of India shall not be allowed to be exploited by those who could well afford to wait by dragging the latter from Court to Court for adjudication of peripheral issues, avoiding decision on issues more vital to them. https://hcservices.ecourts.gov.in/hcservices/ 7. Reliance was placed on the observations of the Supreme Court in the case of HUSSAN MITHU MHASVADKAR Vs. BOMBAY IRON & STEEL LABOUR BOARD, (2001) 7 SCC 394, to contend that the character of the appellant should be decided as a preliminary issue. Though the paragraph on which reliance has been placed by Mr.Sanjay Moham, on the first reading, appears to be supporting the contention of the appellant, on the entire reading of the judgment, we are of the considered view that the said case has not laid down any ratio, as contended by Mr.Sanjay Mohan. That was a case in which the appellant was working as an Inspector in Bombay Iron and Steel Labour Board from 13.03.1979 having been appointed as such on 10.03.1979. The appellant was placed on probation for a period of three months and after putting in service of 21 months, an order of termination came to be made on 17.12.1980. According to the appellant, he was doing the work of supervision, detection of defaulters, other work of clerical nature, maintenance of registers, files, preparation of reports, etc. On a dispute being raised, a reference was made under section 10(1) and section 12(5) of the Industrial Disputes Act to the I Labour Court, Bombay, for adjudication. By an award dated 18.07.1986, the reference was rejected as not maintainable, on the findings recorded that the Board is not an 'industry' and since the appellant was not employed in an industry, he could not fall within the definition of 'workman'. The writ petition filed by the workman before the learned single Judge and appeal before the Division Bench ended unsuccessfully. 8. On this factual matter peculiar to the facts of that case, the Supreme Court has observed that in the case of this nature where a labour Court as well as the High Court entertained doubt about the status of the appellant as a workman, within the meaning of section 2(s) of the Industrial Disputes Act, instead of embarking upon an adjudication in the first instance as to whether the respondent Board was an industry or not so as to attract the provisions of the Industrial Disputes Act, should have taken up the question about the status of the appellant for adjudication at the threshold and if only the finding recorded was against the appellant, refrain from adjudicating on the larger issue affecting the various kinds of other employees, as to the character of the Board, as an industry or not. The larger issue should have been entertained for consideration only in cases where it is absolutely necessary and not when the claim before it could have been disposed of otherwise without going into the nature and character of the undertaking itself. 9. In the case on hand all the issues are at large. Neither the authority under the Act nor the High Court doubted the character of the appellant. It is still in the preliminary stage. This variance of the fact makes an ocean of difference between the case on hand and the case relied upon by the appellant. https://hcservices.ecourts.gov.in/hcservices/ 10. All the issues before the Court are decided based on the merits and demerits of the case. When the beneficial legislation has been exploited against the intendment and purpose for which it was enacted and in those circumstances of the case, if the Court takes a different view that cannot be regarded as one taking a reversal trend by the Courts, as contended by Mr.Sanjay Mohan, learned counsel for the appellant. 11. Be that as it may, now, in view of the catena of the decisions of the Supreme Court in which it has been held that all the issues have to be decided at the same time and further the learned single Judge has stated that while deciding all the issues, the issue as to the character of the appellant has to be decided at first and depending upon the outcome, the other issues have to be decided is in a way favourable to the appellant, which requires no interference. 12. For the foregoing reasons, the appeal is dismissed. The Labour Court is directed to take note of the judgment referred to above by Mr.Sanjay Mohan before us in the case of Hussain Mithu Shasvadkar and proceed further in accordance with law. However, there will be no order as to costs. Connected W.A.M.P.Nos.6393 and 6394 of 2003 are consequently dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ksv/mf/usk To: The Presiding Officer II Additional Labour Court Chennai. 1 cc To M/s.S.Ramasubramaniam & Associates, Advocate, SR.4020. 1 cc To Mr.S.Arunachalam, Advocate, SR.3939. W.A.No.3912 of 2003 VC(CO) RVL 11.02.2008 https://hcservices.ecourts.gov.in/hcservices/