Civil Revision No. 3815 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 3815 of 2009 (O&M) Date of decision: May 10, 2010 The Tribune Trust .. Petitioner v. The Presiding Officer, Industrial Tribunal-cum-Labour Court, Chandigarh and another .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. N. B. Joshi and Mr. Manu K. Bhandari, Advocates for the petitioner. Mr. Anupam Gupta, Advocate for respondent No. 2. .. Rajesh Bindal J. The Tribune Trust (hereinafter referred to as `the management') is before this court challenging the order dated 26.5.2009, passed by Industrial Tribunal and Labour Court, Chandigarh (for short, `the Tribunal') in Reference No. 46/2008, whereby the application filed by the management under Section 141 CPC, read with Section 151 CPC, read with Order 14 Rule 2 CPC for framing of preliminary issue regarding maintainability of the reference, was dismissed. Briefly, the pleaded facts are that the management is a Trust, which inter-alia is engaged in the business of publication, printing, distribution and sale of newspapers with its headquarters at Chandigarh. Respondent No. 2 is the registered trade Union (hereinafter referred to as `the Union') of the employees working with the petitioner. The dispute arose with the issuance of demand notice dated 22.11.2007 by the Union. On receipt of the demand notice, the management also issued a charter of demands on 8.12.2007. On failure during conciliation proceedings, the charter of demands raised by the Union was referred for adjudication to the Tribunal vide order dated 9.5.2008. It is further pleaded that after the dispute raised by the Union was referred for adjudication, the parties to the dispute, i.e., the management and the Union settled the same on 2.7.2008 under Section 18(1) of the Industrial Disputes Act, 1947 (for short, `the Act'). It was considering the charter of demands raised by both the parties. A joint application was filed by both the parties to the Assistant Labour Commissioner for registration Civil Revision No. 3815 of 2009 [2] of the settlement, which was duly registered on 4.7.2008. Still the charter of demands of the management was referred to the Tribunal for adjudication vide order dated 22.8.2008. It is further pleaded that the settlement between the parties having been acted upon, the management moved application dated 2.2.2009 before the Tribunal seeking for passing of a no dispute award in its case in terms of the settlement. The Union having not acceded to the request of the management for getting their reference also disposed of as settled, application under Section 141 CPC, read with Section 151 CPC and Order 14 Rule 2 CPC, was filed by the management, to which the Union filed reply disputing the maintainability thereof on legal as well as factual grounds. The application having been rejected, the management is before this Court. Learned counsel for the management submitted that in terms of the provisions of the rules, the President and Secretary of the Union are authorised to deal on behalf of the Union and also that the members thereof are bound by it. No separate resolution is required to be passed for the purpose. Rule 4 of the Industrial Disputes (Punjab) Rules, 1958 (for short, `the Rules') was referred to submit that an application on behalf of the workmen can be signed by the President and Secretary of the Union. Rule 8 was referred to submit that even in an arbitration case, President and Secretary of the Union can sign it. Even if for arguments' sake, it is considered that a special resolution is required, the demand notice issued by the Union clearly mentioned that the persons, who had settled the demands with the management were duly authorised for the purpose and the management had, in fact, acted upon that. All of them could act jointly and severally. He submitted that the Union sought to raise five objections, namely, the persons, who had signed the settlement with the management, were not authorised; the settlement arrived at between the parties was not acted upon; there was nothing in the settlement, which was for the benefit of the workmen; mis-representation was made to the workmen as some promises only were made and that the Union had terminated the settlement. It was submitted that none of the objections sought to be raised by the Union was legitimate. A bare perusal of the settlement shows that it was for the benefit of the workmen. There was no mis-representation made. As regards the action of the Union in termination of the settlement is concerned, it was submitted that Section 2(p) of the Act defines what is settlement. Section 18(1) of the Act provides that any settlement arrived at between the parties is binding on them. Section 19 of the Act provides for period of operation of settlements and awards. Reliance was placed upon the following judgments in support of the arguments-- Amin Chand Civil Revision No. 3815 of 2009 [3] Pyare Lal and Second Punjab Industrial Tribunal, 1958(1) LLJ 604; R. K. Dubey and M. P. State Agro Industries Development Corporation and others, 1992-II LLJ 182; Blue Star Ltd. and K. S. Khurana and others, 1994-II LLJ 590; P. Virudhachalam and others v. Management of Lotus Mills and another, (1998) 1 SCC 650, National Engineering Industries Ltd. v. State of Rajasthan and others, 2000-I LLJ 247 and Salora International Ltd. v. Labour Commissioner, Kanpur and others, 2007- III LLJ 94. In response to the contentions raised by learned counsel for the management, learned counsel for the Union submitted that the petition filed by the management in this court is totally misconceived. The object is merely to delay the process of adjudication of legitimate demands raised by the Union, which have already been referred to the Tribunal for adjudication. In fact, the management is playing hide and seek with the workmen on the strength of whom it is running the show. He further submitted that in fact the application filed by the management before the Tribunal was not maintainable at all. The application was filed under Section 141 CPC, read with Section 151 CPC and Order 14 Rule 2 CPC. A perusal of Section 141 CPC shows that the same is applicable to civil courts. The consistent judicial opinion is that the Tribunal constituted under the Act is not a civil court. Section 11 of the Act provides for procedure to be followed by the Tribunal, where certain specified provisions of CPC have been adopted, which is subject to the rules to be framed by the Central Government. Even in the Rules, there is nothing about the issues to be framed. Once the Tribunal is not a civil court, it rightly did not accept the application filed by the management for treating the issue regarding maintainability of the reference on the behest of the Union, as a preliminary issue. In support of the arguments reliance was placed upon The Bata Shoe Co., (P) Ltd. v. D. N. Ganguly and others, AIR 1961 SC 1158; Grindlays Bank Ltd. v. The Central Government Industrial Tribunal and others, AIR 1981 SC 606; D.P. Maheshwari v. Delhi Admn. and others , AIR 1984 SC 153; Nalgonda Co-op. Marketing Society Ltd. v. Labour Court, Hyderabad and others, 1994-II LLJ 716; National Council for Cement and Building Materials v. State of Haryana and others, (1996) 3 SCC 206; Ajaib Singh v. Sirhind Cooperative Marketing-cum-Processing Service Society Ltd. and others, (1999) 6 SCC 82; Jammu Tehsil v. Hakumar Singh and others, (2006) 12 SCC 193; Ramesh Chandra Sankla and others v. Vikram Cement and others, (2008) 14 SCC 58; Nahar Industrial Enterprises Limited v. Hong Kong and Shanghai Banking Corporation, (2009) 8 SCC 646 and Apollo Tyres Ltd. v. C.P. Sebastian, (2009) 14 SCC 360. Civil Revision No. 3815 of 2009 [4] In response to the submissions made by learned counsel for the management as regards the merit of the controversy is concerned, it was submitted that the judgments relied upon by him pertain to the cases where the issue regarding settlement between the management and the workers was adjudicated upon by the Tribunal on merits and it was thereafter in appeal that the matter was considered by the higher courts. In the present case, it was only the application filed by the management for treating the issue regarding maintainability of the reference as a preliminary issue, which was dismissed with the opinion that adjudication of the dispute would require leading of evidence. The Tribunal is yet to opine on the merits of the controversy regarding the settlement. This court would not like to consider the same at the first instance. He further referred to the demand notice of the union, which was signed by six persons, namely, President, Sr. Vice-President, Vice-President, General Secretary, Office Secretary and Joint Secretary as the persons authorised. The demand notice clearly mentioned that they all were authorised to deal with the issue, meaning thereby they could settle the charter of demands with the management jointly. It is not in dispute that the alleged settlement arrived at would fall under Section 18(1) of the Act, as it was not before the Conciliation Officer. A perusal of the settlement shows that it was merely signed by three persons out of 6 and the same is the position with regard to the communication sent to the Assistant Labour Commissioner for registration of settlement. In the light of the aforesaid facts, the management cannot be permitted to state that the settlement was arrived with the authorised representatives of the workmen. Reliance was placed upon Brooke Bond India Ltd. v. The Workmen, AIR 1981 SC 1660 to submit that entering into settlement and signing the settlement are two different issues. The persons, who enter into settlement have to be duly authorised. Workmen of M/s Delhi Cloth and General Mills v. Management of M/s Delhi Cloth and General Mills, AIR 1970 SC 1851 was relied upon to submit that if a settlement is challenged before the Tribunal, it is for the other party to prove that the settlement is good. In the present case, the Union had challenged the settlement on various grounds including the competence of the persons, who had allegedly entered into the same and onus to prove that it was a good settlement is on the management. He further submitted that all the labour laws provide for payment of a minimum sum to the employees. There is no bar on the employer to pay anything more than that. As is evident from the facts of the present case, the management considering the work done by the employees had been paying more than the minimum prescribed under various labour laws. All of a Civil Revision No. 3815 of 2009 [5] sudden, the same was sought to be withdrawn without any rhyme or reason. In response to the submissions made by learned counsel for the Union, learned counsel for the management submitted that the judgment in Brooke Bond India Ltd.'s case (supra) is not applicable in the facts of the present case for the reason that the provisions of Rule 62(2)(b) of the Industrial Disputes (Bombay) Rules, 1957 are quite different as compared to Rule 58 of the Rules, which are relevant for the purpose of decision of the present case. Even otherwise, the aforesaid judgment is also distinguishable on facts, as there was dispute regarding authorisation of the persons who were to enter into the settlement and sign the same. Referring to the demand notice issued by the Union, it was submitted that it was only six persons mentioned therein, who were authorised to deal with the management and enter into a settlement. It did not anywhere provide that all of them had to deal with collectively. Any one of them could enter into settlement on behalf of the workmen. Similar is the position with regard to signing of the settlement. A settlement would be signed by the persons who have been statutorily authorised in terms of Rule 58 of the Rules and in the present case, the same having been signed by them has to be considered a valid settlement. Learned counsel for the management was fair enough to concede that Labour Court is not a civil court. Provisions of the Code of Civil Procedure or the Indian Evidence Act do not apply stricto sensu to the proceedings before the Tribunal. However, the procedure prescribed therein being based on the natural law and justice and fair trial, are applicable as such in every proceedings. Even in the application filed by the management before the Tribunal, it was so mentioned that though the CPC as such is not applicable but it is only the principles thereof which are being invoked and the basis thereof was ubi jus ibi remedium. The reason for invoking this principle was that the very object of the Industrial Disputes Act, 1947 is to bring about industrial peace and harmony and further that the management had already changed its position after the settlement arrived at between the parties by withdrawing reference of dispute regarding the demand notice issued by it. Pendency of a reference before the Tribunal is always used by the Union as a tool to blackmail the management on various issues. On account of all these reasons, the application was filed for framing of a preliminary issue as the Tribunal was required only to consider the settlement arrived at between the parties and pass a no award, as was done in the case of reference of dispute by the management, which was withdrawn by it in terms of settlement. It was further submitted that it is not that the preliminary issues are not framed by the Tribunal. In the case of termination of services of the employees, invariably preliminary Civil Revision No. 3815 of 2009 [6] issue is framed regarding the conduct of enquiry. The reason behind is that finding on one issue can lead to the disposal of entire reference. In the present case also, the Tribunal was only to consider the settlement and pass a no award. The merits of the settlement were not required to be gone into by the Tribunal. Heard learned counsel for the parties and perused the paper book. In Ramesh Chandra Sankla's case (supra), Hon'ble the Supreme Court considered as to whether the Tribunal constituted under the Act should treat any issue as preliminary. While referring to the earlier judgment of Hon'ble the Supreme Court in D.P. Maheshwari's case (supra), it was opined that generally all the issues arising in a suit or proceedings should be treated together and the judgment should be pronounced on all the issues and that the provisions of CPC do not stricto sensu apply to industrial adjudication. Even under the Code after the 1976 amendment, the normal rule is to decide all the issues in a civil suit together. Relevant paragraphs 72 to 79 thereof are extracted below: “72. It was also submitted that this Court has held that statutory tribunals must decide all issues raised by the parties. This is particularly true to industrial disputes. Strong reliance was placed on D. P. Maheshwari v. Delhi Admn., (1983) 4 SCC 293. Dealing with a similar argument, this Court said: (SCC pp. 294-295. para 1) “1...... 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 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 Civil Revision No. 3815 of 2009 [7] 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 and journeyings up and down. It is also worthwhile remembering that the nature of the jurisdiction under Article 226 is supervisory and not appellate while that under Article 136 is primarily supervisory but the court may exercise all necessary appellate powers to do substantial justice. In the exercise of such jurisdiction neither the High Court nor this Court is required to be too astute to interfere with the exercise of jurisdiction by Special Tribunals at interlocutory stages and on preliminary issues.” (emphasis supplied) 73. Reference was also made to S.K. Verma v. Mahesh Chandra, (1983) 4 SCC 214. In that case, this Court commented that there appears to be three preliminary objections which have become quite the fashion to be raised by all employers. Firstly, there is no industry. Secondly, there is no industrial dispute. Thirdly, the workman is “no workman”. 74. The attention of the Court was also invited to National Council for Cement & Building Materials v. State of Haryana, (1996) 3 SCC 206 wherein the Court deprecated the practice of the management to raise preliminary issues with a view to delay adjudication of industrial disputes. 75. In our considered opinion, in the present case, it cannot be said that the courts below have committed any error of jurisdiction in not deciding the issue as to the maintainability of claim petitions as preliminary issue. It is well settled that generally, all issues arising in a suit or proceeding should be tried together and a judgment should be pronounced on those issues. Before more than hundred years, the Privy Council in Tarakant Bannerjee v. Puddomoney Dossee, (1866) 10 Moo IA 476 favoured this approach. Speaking for the Judicial Committee, Lord Turner stated: (Moo IA p. 488) Civil Revision No. 3815 of 2009 [8] “... The courts below, in appealable cases, by forbearing from deciding on all the issues joined, not infrequently oblige this Committee to recommend that a cause be remanded which might otherwise be finally decided on appeal. This is certainly a serious evil to the parties litigant, as it may involve the expense of a second appeal as well as that of another hearing below. It is much to be desired, therefore, that in appealable cases the courts below should, as far as may be practicable, pronounce their opinions on all the important points.” (emphasis supplied) The above principle has been consistently followed. 76. This Court dealing with the provisions of Order 14 Rule 2 (prior to the Amendment Act of 1976) in Major S.S. Khanna v. Brig. F.J. Dillon, AIR 1964 SC 497 stated: (AIR pp. 502-03, para 18) “18. ... Under Order 14 Rule 2, Code of Civil Procedure, where issues both of law and of fact arise in the same suit, and the court is of the opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the court; not to do so, espicially when the decision on issues even of law depend upon the decision of issues of fact, would result in a lopsided trial of the suit.” (emphasis supplied) 77. The Law Commission also considered the question and did not favour the tendency of deciding some issues as preliminary issues. Dealing with Rule 2 of Order 14 (before the amendment), the Commission stated: Civil Revision No. 3815 of 2009 [9] “This Rule has led to one difficulty. Where a case can be disposed of on a preliminary point (issue) of law, often the courts do not inquire into the merits, with the result that when, on an appeal against the finding on the preliminary issue, the decision of the court on that issue is reversed, the case has to be remanded to the court of first instance for trial on the the other issues. This causes delay. It is considered that this delay should be eliminated, by providing that a court must give judgment on all issues, excepting, of course, where the court finds that it has no jurisdiction or where the suit is barred by any law for the time being in force.” (emphasis supplied) 78. Apart from the fact that the provisions of the Code do not stricto sensu apply to “industrial adjudication”, even under the Code, after the Amendment Act, 1976, the normal rule is to decide all the issues together in a civil suit. 79. In the case on hand, the contention of the workmen is that the acceptance of the scheme was not with free consent, and even otherwise they were not given all the benefits to which they were entitled under the scheme. Therefore, they continued to remain employees of the Company. The Labour Court felt that the controversy raised by the workmen can only be decided in the light of the evidence before it. The said decision has been confirmed by the Industrial Court as well as by the learned Single Judge. We find no illegality in this approach which deserves interference under Article 136 of the Constitution. We, therefore, see no substance in the contention of the Company.” Certain observations made by Hon'ble the Supreme Court in D.P. Maheshwari's case (supra) are also relevant which are extracted below: “1. It was just the other day that we were bemoaning the unbecoming devices adopted by certain employers to avoid decision of industrial disputes on merits. We noticed how they would raise various preliminary objections, invite decision on those objections in the first instance, carry the matter to the High Court under Article 226 of the Constitution and to this Court under Article 136 of the Constitution and delay a decision of the real dispute for years, Civil Revision No. 3815 of 2009 [10] sometimes for over a decade. Industrial peace, one presumes, hangs in the balance in the meanwhile. We have now before us a case where a dispute originating in 1969 and referred for adjudication by the Government to the Labour Court in 1970 is still at the stage of decision on a preliminary objection. 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 them as preliminary issues. Nor should High Courts in the exercise of the jurisdiction under Art. 226 of the Constitution stop proceedings before