1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4834 OF 2008 Bata India Limited ..... Petitioner V/s. Shri K.S.Shinde ..... Respondent Shri P.K.Rele, Sr.Counsel a/w A.B.Chowdhary and R.R.Rele, Advocates for the Appellant. Mr.Kiran Bapat, Advocate, for the Respondent. CORAM : P.B.MAJMUDAR, J. DATED : JULY 08, 2008. P.C. 1. By filing this petition, the petitioner has challenged the order passed by the Labour Court, Pune, below Exh.C-7 in complaint (ULP) No.67 of 2007 and below Exh. C-6 in (ULP) Nos.68 of 2007 and 81 of 2007, as well as the order passed by the Industrial Court at Pune in Revision Application (ULP) Nos.15 to 21 of 2008, by which the revision application filed by the petitioner has been dismissed by the Industrial Court at Pune. 2. The respondents are the original complainants before the Labour Court. A complaint has been made on the ground that the services of the 2 employees have been terminated illegally and the management has committed unfair labour practice. During the pendency of the proceedings, the petitioner gave an application to the effect that since the workmen is not an employee and as they are served as salesmen, the complaint is not maintainable and that the issue about the maintainability of the complaint should be decided as a preliminary issue. The Labour Court found that the issue in question is required to be decided along with other issues and it would not be just and proper to decide the issues in a piecemeal manner and therefore, the said interlocutory applications were rejected by the Labour Court. Against the said orders, revisions were preferred before the Industrial Court and the same was dismissed by upholding the order of the Labour Court. Hence this petition. 3. Mr.Rele, the learned Counsel for the petitioner, submitted that the Labour Court should have decided the preliminary issue regarding the maintainability of the complaint, as ultimately if it is found by the Labour Court that it has no jurisdiction to decide the complaint, it may not be necessary to decide other issues on merit. It is further submitted by him that on the question about maintainability of the complaint as well as the question of jurisdiction of the Labour Court, both the sides may be permitted to lead evidence and ultimately if it is found that the complainant 3 is not a workman, it would be a futile exercise to decide other issues. According to him, even otherwise also, it is the duty of the Labour Court to decide the preliminary issue about the jurisdiction of the Labour Court to entertain such complaint. In this connection, he has relied upon a ruling of the Supreme Court in the case of Hussan Mithu Mhasvadkar V/s. Bombay Iron and Steel Labour Board, 2001 (91) FLR 232. In the aforesaid case, two preliminary issues were framed by the Labour Court and it has been held by the Supreme Court that: “in a case of the nature where the labour court as well as the High Court entertained doubts about the status of the appellant as a workman within the meaning of Section 2(s) I.D.Act, instead of embarking upon an adjudication in the first instance as to whether the respondent-board is an industry or not so as to attract the provisions of the Industrial Disputes Act, ought to have refrained from doing so and 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 refrained 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. 4. Relying upon the said judgment, it is argued that the Labour Court should decide the status of the complaint first instead of deciding other issues on merit. 5. Mr.Rele, has also relied upon a decision of the Supreme Court in 4 the case of Express Newspapers Ltd. V/s. Their Workers and Staff and others, 1962 (II) LLJ 227. So far as the aforesaid case is concerned, it has no connection with the facts and issue in the present case. In the present case, the Court is required as to whether the Labour Court should decide the issue in question as a preliminary issue. 6. The learned Advocate for the respondent, on the other hand, has relied upon a ruling in the case of National Council for Cement & Building Materials V/s. State of Harayana & Ors., (1996) 3 SCC 206. In the said judgment the Supreme Court in Para No.16 held that “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 issues along with other issues on merits at a later stage of the proceedings. It was at this stage 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 5 any occasion to interfere with the order passed by the High Court. The appeal is dismissed, but without any order as to costs”. 7. The learned Advocate for the respondent has also relied upon a ruling of the Apex Court in the case of The Cooper Engineering Limited V/s. Shri P.P.Mundhe, (1975) 2 SCC 661, 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 will be also legitimate for the High Court to refuse to intervene at this stage”. 8. I have considered the arguments of both the sides and also gone through the case papers. In my view the issue regarding the maintainability of the complaint and as to whether the complainant is a workman or not, is required to be decided by the Labour Court along with other issues as evidence is required to be led on this issue. 9. It would not be just and proper to decide the matter in piecemeal manner. Considering the said aspect, this is not a case in which this Court would like to interfere with the discretionary order of the Labour Court. This Court would not like to interfere with the same in its extra-ordinary jurisdiction under Article 226 & 227 of the Constitution of India. It is also 6 desirable that normally all issues should be tried together as incase the trial Court gives finding on a preliminary issue and if the matter is taken further before the higher forum and if that finding is reversed, the matter may not be required to be remanded back for deciding other issues. Even otherwise also, this Court would not like to intercept the proceedings at such an interlocutory stage as it may delay the proceedings further. Ultimately, it is always open to party to challenge the final order on all available grounds. I accordingly do not find any substance in this petition and hence, same is rejected. ( P.B.MAJMUDAR, J.)