IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.137 /2008 Reserved on: 6.11.2008 Decided on:12.11. 2008 Anil Kumar Mehta. …Petitioner. Versus Presiding Officer, Labour Court, Shimla & another. Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes For the petitioner : In person. For the Respondents : Mr. Rajinder Kishore Sharma, Senior Additional Advocate General with Mr. Vikas Rathore, Deputy Advocate General for respondent No.1. Mr. Rahul Mahajan, Advocate for respondent No.2. Rajiv Sharma, J. This petition is directed against the order dated 18.1.2008 passed by the Presiding Judge, Labour Court-cum-Industrial Tribunal in reference No. 53 of 2005. Brief facts necessary for the adjudication of this petition are that the State Government has made the following reference to the Labour Court- cum-Industrial Tribunal: “Whether Shri Anil Kumar Mehta S/O Shri Ashwani Kumar Mehta Engineer falls under the category of workman keeping in view his nature of duties as defined under section 2-S of 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 the Industrial Disputes Act, 1947? If so, whether his termination from service w.e.f. 28.10.2002 without holding enquiry and without complying the provisions of the industrial Disputes Act, 1947 is proper and justified? If not, what relief of service benefits and amount of compensation the above aggrieved workman is entitled to?” The petitioner had filed statement of claim before the Labour Court- cum-Industrial Tribunal, Shimla pursuant to the reference made by the State Government. Respondent No.2 (hereinafter referred to as the employer for convenience sake) filed his reply. The workman during the pendency of the reference before the Labour Court filed an application for interim relief claiming Rs. 5,000/- per month as maintenance allowance from the date of his termination i.e. 28.10.2002. The employer filed reply to the application preferred by the workman. The workman filed replication to the reply filed by the employer. The workman had primarily contended before the Labour Court that he was engaged as Engineer to perform clerical and technical work with effect from 14.5.2001, however, he was retrenched without following the mandatory provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as he Act’ for brevity sake) on 28.10.2002. It was further averred in the application that he was not gainfully employed after his retrenchment and he was entitled to interim relief. The employer had contended that the petitioner was not a workman within the meaning of section 2-S of the Act. The principal stand of the employer before the Labour Court was that the petitioner was appointed as ‘Engineer Purchase’ and he was the administrative head of the purchase department and he was also responsible for sanctioning the leave and was also doing appraisal etc. According to the employer, he was performing managerial and administrative job etc. It was further contended that a team of five qualified personnel were reporting to the petitioner and jobs were being allocated to them by the petitioner being 3 the administrative head of the department. It appears from the record that the application filed by the workman remained undecided for a considerable period. A Division Bench of this Court in CWP No. 667/2006 preferred by the petitioner, directed the Presiding Judge, Labour Court while allowing the writ petition that the applications preferred by the workman be decided by him latest by 31st July, 2007. It is in these circumstances that the application was listed before the learned Presiding Judge, Labour Court and was decided by him on 18.1.2008. The workman had appeared in person. He has strenuously argued that the findings recorded by the Presiding Judge, Labour Court vide order dated 18.1.2008 holding him not to be a workman are erroneous and liable to be struck down by this Court. He also contended that though he was engaged as an Engineer, however, he had been discharging clerical duties. He denied that he was heading the department of purchase. He further contended that as and when the purchase orders were placed, the same were duly verified by the Assistant Manager (Purchase) and Managing Director of the company. He has referred to all the Annexures filed by the employer alongwith its reply i.e. Annexures R-1 to R-15 to substantiate his plea that the Labour Court has mis-construed these documents while coming to a conclusion that he was not a workman. He claimed that he was entitled to interim relief @ Rs. 5,000/- per month after his retrenchment with effect from 28.10.2002. Mr. Rahul Mahajan, Advocate has supported the order dated 18.1.2008. According to him the petitioner is not a workman and the findings recorded by the Labour Court are based on the evidence led by the parties. He has strongly relied upon Annexures R-1 to R-15 to substantiate that the petitioner was not a workman under section 2 (S) of the Act. 4 I have heard the petitioner in person and learned counsel for respondent No.2 and perused the record carefully. It is not disputed by the parties that the workman was engaged on 14.5.2001. His appointment letter dated14.5.2001 reads thus: “Sub: Appointment letter for the post of “Engineer” Dear Mr. Mehta, We have much pleasure in informing you that you are selected for the appointment as “Engineer” on the following terms and conditions. 1. You will be paid total Rs. 8,000/- per month and your salary structure will be as under: Basic Salary - Rs. 4500.00 HRA - Rs. 1500.00 Conveyance Allowance - Rs. 1000.00 Special Allowance - Rs. 1000.00 ---------------------- TOTAL SALARY Rs. 8000.00 All other benefits like Ex-gratia, P.F. & Gratuity will be extra as per company policy. N.B.: The salary structure can be changed at the entire discretion of the management, but in no case your total amount will be reduced by change of salary structure. 2. You will be on probation for a period of one year from the date, you join the services of the company. The period of your probation may, however, be extended at the sole discretion of the management and only after your successful completion of training if management feel you are suitable in our organization then only your services will be confirmed in the Company. 3. During the period of your probation, your services are liable to be terminated at any time without assigning any reason. After the probation period, your services are liable to be terminated with one month’s notice in writing on either side. 4. Your appointment is subject to the production of a Medical Certificate of fitness from a Doctor having MBBS degree at the time of joining. 5 5. Your place of work will be 104-105, HPSIDC Area, Baddi (H.P.). You should be prepared to serve in any department of the company and anywhere in India and in any of the subsidiaries. 6. You may be transferred in any shift of the company and may be assigned any duty necessary at the discretion of the management. 7. This offer of appointment is issued subject to the conditions that there is no Police/Vigilance/ Disciplinary action pending against you. You shall have to give an affidavit to this effect. 8. You will be superannuated from the company’s service after attaining the age of 58 years.” The total salary of the petitioner was Rs. 8000/- per month as per para 1 of the appointment letter dated 14.5.2001. The State Government has made the reference as noticed hereinabove. He had filed an application seeking interim relief, which was kept pending by the learned Presiding Judge, Labour Court for a considerable period and it was only at the instance of this Court that the application was adjudicated on 18.1.2008. The ancillary issue which is also required to be decided in this petition is: Whether the Labour Court could decide the preliminary issue raised by the employer to the effect whether the petitioner is a workman or not while adjudicating the application for interim relief? This proposition of law is no more res integra in view of the law laid down by their Lordships of the Hon’ble Supreme Court in Management of Express Newspapers (Private) Ltd., Madras versus The Workers and others, AIR 1963 SC 569 that the question with regard to jurisdictional issue can be decided by the Tribunal in the first instance. Their Lordships have held as under: “The true legal position in regard to the jurisdiction of the High Court to entertain the appellants petition even at the initial stage of the proceedings proposed to be taken before the Industrial Tribunal is not in dispute. If the action taken by 6 the appellant is not a lockout but is a closure bona fide and genuine the dispute which the respondents may raise in respect of such a closure is not an industrial dispute at all. On the other hand, if, in fact and in substance it is a lockout, but the said action has adopted the disguise of a closure, and a dispute raised in respect of such an action it would be an industrial dispute which industrial adjudication is competent to deal with. The appellant contends that what it has done is a closure and so, the dispute in respect of it cannot be validly referred for adjudication by an Industrial Tribunal. There is no doubt that in law, the appellant is entitled to move the High Court even at the initial stage and seek to satisfy it that the dispute is not an industrial dispute and so, the Industrial Tribunal has no jurisdiction to embark upon the proposed enquiry. There is also no doubt that the proceedings before the Industrial Tribunal are in the nature of quasi judicial proceedings and in respect of them a writ of certiorari can issue in a proper case. If the Industrial Tribunal proceeds to assume jurisdiction over a non-industrial dispute that can be successfully challenged before the High Court by a petition for an appropriate writ, and the power of the High Court to issue an appropriate writ in that behalf cannot be questioned. It is also true that even if the dispute is tried by the Industrial Tribunal, at the very commencement the Industrial Tribunal will have to examine as a preliminary issue the question as to whether the dispute referred to it is an industrial dispute or not, and the decision of this question would inevitably depend upon the view which the Industrial Tribunal may take as to whether the action taken by the appellant, is a closure or a lockout. The finding which the Industrial Tribunal may record on this preliminary issue will decide whether it has jurisdiction to deal with the merits of the dispute or not. If the finding is that the action of the appellant amounts to a closure, there would be an end to the proceedings before the Tribunal so as the main dispute is concerned. If on the other hand, the finding is that the action of the appellant amounts to a lockout which has been disguised as a closure, then the Tribunal will be entitled to deal with the reference. The finding which the Tribunal may make on this preliminary issue is a finding on a jurisdictional 7 fact and it is only when the jurisdictional fact is found against the appellant that the Industrial Tribunal would have jurisdiction to deal with the merits of the dispute. This position is also not in dispute. The Court of Appeal has held that having regard to the somewhat complex nature of the facts which have to be determined in dealing with the preliminary issue, it would be appropriate that the Industrial Tribunal which is specially appointed to try such issues, should first hold an enquiry in respect of that issue. The Court of Appeal has elaborately set out in its judgment the pros and cons of the dispute and it has indicated some of the facts on which the two rival contentions are based. It, however, thought that having regard to the nature of the enquiry involved in the decision of the preliminary issue, it would be inappropriate for the High Court to take upon itself the task of determining the relevant facts on affidavits. A proper and a more appropriate course to adopt, it thought, would be to let the material facts be determined by the Industrial Tribunal in the first instance. That is why the Appeal Court was not inclined to confirm the decision of the trial Court in W.P. No. 450/l959. The narrow question which we are thus called upon to consider in the present appeal is whether this view is erroneous in law. It seems to us difficult to accept Mr. Sastri's argument that the Appeal Court was in error in taking this view. As we have just indicated, the legal position with regard to the jurisdiction of the High Court is not in doubt. The only question on which the trial Court and the Appeal Court have differed is in regard to the propriety or the appropriateness of holding an enquiry on a complicated question of fact in writ proceedings. It is well-known that Industrial Courts are familiar with the nature of the problem raised by the preliminary issue between the parties in the present writ proceedings. In fact, Industrial Tribunals have been specially established in order to deal with industrial disputes in different places. That is one consideration which is relevant. The other consideration which is equally material is that a question of the complicated character cannot be satisfactorily dealt with merely on affidavits. The theoretical distinction between a closure and a lockout is well settled. In the case of a closure, the employer does not merely close 8 down the place of business, but he closes the business itself; and so, the closure indicates the final and irrevocable termination of the business itself. Lockout, on the other hand, indicates the closure of the place of business and not the closure of business itself. Experience of Industrial Tribunals shows that the lockout is often used by the employer as a weapon in his armoury to compel the employees to accept his proposals just as a strike is a weapon in the armoury of the employees to compel the employer to accept their demands. Though the distinction between the two concepts is thus clear in theory, in actual practice it is not always easy to decide whether the act of closure really amounts to a closure properly so called, or whether it is a disguise for a lockout. In dealing with this question, industrial adjudication has to take into account several relevant facts and these facts may be proved before the Industrial Tribunal either by oral evidence, or by documentary evidence and by evidence of conduct and circumstances. Whenever a serious dispute arises between an employer and his employees in regard to a closure which the employees allege is a lockout the enquiry which follows is likely to be long and elaborate and the ultimate decision has always to depend on a careful examination of the whole of the relevant evidence. That being so, it seems to us that the course adopted by the Appeal Court in the present proceedings is both proper and appropriate. The High Court undoubtedly has jurisdiction to ask the Industrial Tribunal to stay its hands and to embark upon the preliminary enquiry itself. The jurisdiction of the High Court to adopt this course cannot be, and is indeed not disputed. But would it be proper for the High Court to adopt such a course unless the ends of justice seem to make is necessary to do so? Normally, the questions of fact, though they may be jurisdictional facts the decision of which depends upon the appreciation of evidence, should be left to be tried by the special Tribunals constituted for that purpose. If and after the Special Tribunals try the preliminary issue in respect of such jurisdictional facts, it would be open to the aggrieved party to take that matter before the High Court by a writ petition and ask for an appropriate writ. Speaking generally, it would not be proper or appropriate that the initial jurisdiction of the 9 Special Tribunal to deal with these jurisdictional facts should be circumvented and the decision of such a preliminary issue brought before a High Court in its writ jurisdiction. We wish to point out that in making these observations, we do not propose to lay down any fixed or inflexible rule, whether or not even the preliminary facts should be tried by a High Court in a writ petition must naturally depend upon the circumstances of each case and upon the nature of the preliminary issue raised between the parties. Having regard to the circumstances of the present dispute, we think the Court of Appeal was right in taking the view that the preliminary issue should more appropriately be dealt with by the Tribunal. The Appeal Court has made it clear that any party who feels aggrieved by the finding of the Tribunal on this preliminary issue may move the High Court in accordance with law. Therefore, we are not prepared to accept Mr. Sastri's argument that the Appeal Court was wrong in reversing the conclusion of the trial Judge in so far as the Trial Judge proceeded to deal with the question as to whether the action of the appellant was a closure or a lockout. Similarly, their Lordships of the Hon’ble Supreme Court in Tata Iron and Steel Company Limited versus Singh (D.R.), LLJ 1965 (2) – 122 have held that logically, it would be necessary to make a finding on the preliminary point raised by the appellant before the merits are considered, because if the appellant is right in contending that the respondent is not a "workman concerned with such disputes" within the meaning of S. 33 (2), the application would be unnecessary and there would be no jurisdiction in the Tribunal either to accord or to refuse approval to the action proposed to be taken by the appellant against the respondent. Their Lordships have held as under: “The learned Solicitor-General for the appellant contends, and we think rightly, that the Tribunal was in error in not dealing with the preliminary point as to whether S. 33 applied to the facts of this case. It is plain that in a situation like the present, even if the appellant took the view that the workman 10 against whom it was taking action was not a workman concerned with the main industrial disputes, it would be justified in refusing to take the risk of deciding the said point for itself. It would be legitimate for an employer like the appellant to make an application under S. 33 without prejudice to his case that S. 33 did not apply. The question about the construction of the words "a workman concerned in such dispute" which occur in S. 33 (1) and (2) has been the subject-matter of judicial decisions and some-what inconsistent views had been taken by different High Courts on this point. Some High Courts construed the said words in a narrow way, vide New Jahangir Vakil Mills Ltd., Bhavnagar v. N. L. Vyas, 1958-2 Lab LJ 573: (AIR 1959 Bom 248), while others put a broader construction on them, vide Eastern Plywood Manufacturing Co. Ltd. v. Eastern Plywood Manufacturing Workers' Union, 1952-1 Lab LJ 628 (LATI-Cal); Newtone Studios Ltd. v. T. R. Ethirajulu, 1958-1 Lab LJ 63: (AIR 1957 Mad 737) and Andhra Scientific Co. Ltd. v. Seshagiri Rao, 1959-2 Lab LJ 717: (AIR 1960 Andh Pra 526). This problem was ultimately resolved by this Court in its two recent decisions, viz., New India Motors (Private) Ltd. v. K. T. Morris, 1960-1 Lab LJ 551: (AIR 1960 SC 875) and Digwadih Colliery v. Ramji Singh, 1964-2 Lab LJ 143 (SC). In this latter case this Court considered the conflicting judicial decisions rendered by the different High Courts and has approved of the broader construction of the words "workmen concerned in such dispute". Where judicial decisions differed on the construction of the words "workmen concerned in such dispute", it would be idle and unreasonable to suggest that the employer should make up his mind whether S. 33 applies or not, and if he thinks that S. 33 does not apply, he need not make the application; on the other hand, if he thinks that S. 33 applies, he should make an application, but then he cannot be permitted to urge that the application is unnecessary. Such a view is, in our opinion, wholly illogical and unsatisfactory. Therefore, we must hold that the Tribunal was in error in not considering the preliminary point raised by the appellant that the respondent was not a workman concerned with the main industrial disputes and as such, the application made by it was unnecessary. 11 That raises the question as to the course that we should adopt in dealing with the merits of the present appeal. Logically, it would be necessary to make a finding on the preliminary point raised by the appellant before the merits are considered, because if the appellant is right in contending that the respondent is not a "workman concerned with such disputes" within the meaning of S. 33 (2), the application would be unnecessary and there would be no jurisdiction in the Tribunal either to accord or to refuse approval to the action proposed to be taken by the appellant against the respondent. In the present case, however, we do not propose to adopt such a course. The order terminating the services of the respondent was passed on December 4, 1961 and it was to take effect from December 9, 1961. The Award was pronounced by the Tribunal on October 5, 1962, and when the appeal has come for final disposal before us, more than three years have elapsed since the date of dismissal of the respondent. The learned Solicitor-General fairly conceded that the appellant has come to this Court not so much to enforce its order of dismissal against the respondent, as to have a decision from this Court on the point of law raised by it before the Tribunal. Accordingly, we have decided that point in favour of the appellant; but having regard to the long passage of time between the date of the impugned order and the date when we are pronouncing our judgment in the present appeal, we think it would be inexpedient and unjust to send the matter back to the Tribunal with a direction that it should decide the preliminary point raised by the appellant as to whether the respondent is a "workman concerned in such disputes" within the meaning of S. 33 (2) of the Act. That is why though we have reversed the finding of the Tribunal on the preliminary point, we do not propose to give this litigation any further lease of life.” In view of the definitive law laid down by their Lordships of the Hon’ble Supreme Court, the Labour Court could decide the preliminary issue touching its jurisdiction. 12 The question whether the petitioner is a workman or not will go to the root of the matter. The issue with regard to jurisdiction can be decided as a preliminary objection to avoid larger issues. The Court now has to embark upon the question whether the petitioner was a workman within the meaning of section 2 (S) or not? He was appointed as an Engineer on 14.5.2001. His duties have not been defined in the appointment letter. According to the averment contained in the claim petition and the application seeking interim relief, his contention is that he was discharging clerical duties. The management had placed strong reliance on Annexures R-1 to R-15 filed with the main reply to the statement of claim. According to the employer the workman was holding independent charge of the Purchase Department and he was the administrative head. Mr. Anil Kumar Mehta (petitioner) has strongly argued that he was not holding the independent charge and