1 wp-5678-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION W.P. NO. 5678 OF 2009 Oil and Natural Gas Corporation Ltd. ..Petitioner Vs. Smt.Rukhmani S.Awale and Anr. ..Respondents .... Mr.J.P.Cama Senior Adv. & Ms.Buch i/b Gobindram D.Talreja & Associates along with Gobindram D.Talreja Adv. for Petitioner. Mr.Jaiprakash Sawant Adv. for Respondent No.11. Ms.Ranjana Todankar Adv. for Respondent Nos.9, 12 and 23 Ms.Kalyani S.Shinde Adv. for Respondent Nos.2, 6,10, 17 and 19 Mr.S.M.Deshpande & A.M.Koyande Adv. for Respondent No.7 .... CORAM : SMT.V.K.TAHILRAMANI,J. DATE : 27th JULY , 2009 P.C.: 1. Heard the learned counsel for the petitioner No.1 Oil and Natural Gas Corporation Ltd. and the learned counsel for the respondents. 2. The petitioner is challenging the legality and validity of common order dated 21st April, 2009 framing issues and common order dated 27th April, 2009 passed by the Controlling Authority under Payment of Gratuity Act, whereby he has refused to consider the challenge to the 2 wp-5678-09 jurisdiction and other issues as preliminary issues in the first instance and has decided to try all issues, numbering 9, preliminary as well as common issues, together. 3. The learned counsel for the petitioner submitted that it was not open for the Controlling Authority to do so in view of the order of the High Court dated 3rd July, 2008 in Writ Petition No.2528 of 2007. In view of the contention raised, it would be necessary to state a few brief facts. Application was preferred by the petitioner before the Controlling Authority on 27th June, 2007 to take cognizance of preliminary objection raised by petitioner who were opposite party before the Controlling Authority. The present respondents i.e. applicants before Controlling Authority had requested that in the interest of justice and in order to save the time, all the issues may be decided together. By order dated 31st October, 2007, the Controlling Authority directed that all the issues would be considered and decided together. This order came to be challenged before this Court in Writ Petition No.2528 of 2007, wherein it was prayed that Controlling Authority should first take cognizance of the preliminary issues raised by the petitioners. Thereafter, draft issues which were handed over by the parties, had been framed by consent of both the parties. The learned Single Judge disposed of the said Writ Petition by passing order dated 3rd July, 2008. The relevant part of the said order is reproduced below: 3 wp-5678-09 “By consent of parties, the draft issues tendered before me shall be the issues framed for consideration of the Controlling Authority. If any additional issues arise for determination in the light of the pleadings, then, this order does not prevent the Controlling Authority from framing them and include the same as `Issues ’. As the issues are framed, the petitioners are at liberty to apply to the Controlling Authority for taking and treating some of the issues as preliminary issues and they be considered before the matter is heard on merits. It would be open for the workers to point out that these are not preliminary issues and cannot be treated as such and, therefore, all issues as framed should be decided together. All pleas in that behalf are kept open for being urged by both sides. This Court has not directed treating of any of the issues as preliminary issues and merely because the impugned order is quashed and set aside, does not mean that any opinion is expressed by this Court on rival contentions on this aspect as well as on merits ”. 4. The grievance of the petitioners is that thereafter again in the order dated 27th April, 2009, the Controlling Authority decided to decide all the issues both preliminary and common issues together. The learned counsel for the petitioner submitted that this could not have been done in view of the order of the High Court. In view of the order of the High Court dated 3rd July, 2008, the Controlling Authority could not decide 4 wp-5678-09 the preliminary issues and common issues together. They prayed that the order of the High Court should be implicitly followed. 5. I have carefully perused the order of this Court dated 3rd July, 2008. However, on reading the order, it is seen that this Court had granted liberty to the petitioner to apply to the Controlling Authority for taking and treating some of the issues as preliminary issues. Moreover, this Court also observed that it would be open for the workers to point out that the said issues are not preliminary issues and cannot be treated as such and therefore, all the issues framed, should be decided together. All pleas in that behalf were kept open for being urged by both sides before the Controlling Authority. Thus, this Court had not treated any of the issues framed by consent of the parties as preliminary issues and it was left open for the Controlling Authority to decide whether any of the issues could be framed as preliminary issues and whether only preliminary issues to be decided first and or all common issues to be decided together. 6. The learned counsel for the petitioner submitted that it is always appropriate that the preliminary issue should be decided first. He placed reliance on the decision of a Single Judge of this Court in the case of Executive Engineer, Central Public Works Department, Aurangabad Vs. Raju Banduji Raut, reported in 2009 II C.L.R. 187 wherein the Court below was directed to firstly find out whether it had 5 wp-5678-09 jurisdiction to entertain and decide the complaint. Reliance was also placed on another decision of the learned Single Judge of this Court in the case of Pauni Shikshan Sanstha, Pauni and ors. Vs. Sunil Rajaram Uparikar and ors. Reported in 2001 I CLR 232. In the said case, preliminary issue was raised by one of the parties. The learned Single Judge observed that instead of deciding the preliminary issue, the Tribunal proceeded to allow the amendment application. This Court observed that the Tribunal ought to have addressed itself on the preliminary objection about maintainability of the complaint before deciding the amendment application. 7. Both decisions on which reliance has been placed, have been rendered by the learned Single Judge of this Court. The learned counsel for the Respondents on the other hand, has placed reliance on the decision of the Supreme Court between D.P.Maheswari and Delhi Administration and others,reported in 1983 II L.L.J. 425. This is a decision of the Three Judge Bench of the Supreme Court. The Supreme Court on the issue whether preliminary issues ought to be decided first, has observed thus: “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 6 wp-5678-09 delay may lead to misery and jeopardize 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. ” 8. The second decision on which reliance has been placed by the respondents is in the case of National Council for Cement and Building Materials Vs. State of Haryana reported in 1996 II CLR 234. In the said case, the Supreme Court observed 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 issue along with other issues on merits at later stage of the proceedings. It was at this stage that the High Court was approached by the appellant with the grievance that Industrial Tribunal, having once decided to hear the matter as a preliminary issue, could not change its mind and decide 7 wp-5678-09 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 any occasion to interfere with the order passed by the High Court. ” 9. The learned counsel for the Respondents has also placed reliance on the decision in the matter of Cipla Ltd. & Ors. Vs. Ripu Daman Bhanot and Anr. Reported in 1999 1 CLR 1077. In paragraph 13, it is obesrved therein that ” we would only say that the Labour Court should decide all the issues together and shall not split the issues into preliminary or non-preliminary issues so that the proceedings may come to an end at the earliest. ” 10.Mr.Cama, the learned counsel for the petitioner submitted that in the first decision i.e. D.P.Maheswari (supra) on which reliance has been placed, the Supreme Court has also observed that “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 8 wp-5678-09 jurisdiction to so decide is not to be stifled by all manner of preliminary objections and journeyings up and down. ” It is pertinent to note that thereafter the Supreme Court has further observed that “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. ” 11.Mr.Cama, the learned counsel for the petitioner also placed reliance on a decision by the very same Bench in the case of Workmen of Hindustan Lever Ltd. and others Vs., Management of M/s.Hindustan Level Ltd. reported in AIR 1984 S.C. 516, wherein the Supreme Court observed that “the Tribunal may as well frame preliminary issues if the point on which the parties are at variance, as reflected in the preliminary issue, would go to the root of the matter. But the Tribunal cannot travel beyond the pleadings and arrogate to itself the power to raise issues which the parties to the reference are precluded or prohibited from raising; to wit if the employer does not question the status of the workman, the Tribunal cannot suo moto raise the issue and proceed to adjudicate upon the same and throw out the reference on the sole ground, that the concerned workman was not a workman within the meaning of the expression of the Act. And it is not obligatory upon the employer necessarily to raise the contention that the concerned workman was not a workman within the meaning of the 9 wp-5678-09 expression under the Act. Therefore, the Tribunal was wholly in error in holding that if the contention of the Union were to prevail, the well laid rule of no estoppel against a statute would be violated. ” In my view, the facts in the present case and the case relied upon, are quite different and hence, this decision would not apply to the present case. Moreover, it is seen that the observations have been made by the Supreme Court therein as apparently, the Tribunal suo moto raised issues and proceeded to adjudicate upon the same and threw out the reference on that ground. This becomes apparent because after all the above observations were made, the Supreme Court has thereafter, observed that “But the Tribunal cannot travel beyond the pleadings and arrogate to itself the power to raise issues which the parties to the reference are precluded or prohibited from raising; ............ the Tribunal cannot suo moto raise the issue and proceed to adjudicate upon the same and throw out the reference on the sole ground......... ” Thus, it is in this context that the observations have been made in this decision, hence, it would not apply to the facts of the present case. 12.In the present case, after the matter was remanded back to the Controlling Authority, the Controlling Authority after hearing both sides and after giving sufficient opportunity including filing of written statement and after considering the same, decided to decide the preliminary issues as well as the common issues together. It was open 10 wp-5678-09 for the Controlling Authority to adopt this procedure as this Court itself by order dated 3rd July, 2008 had allowed the Controlling Authority the liberty to decide whether the preliminary issue is to be decided first or all the issues can be considered together. 13.In view of the decisions of the Supreme Court in D.P.Maheshwari and National Council (supra) and in view of the fact that the matter has been pending for sometime, it would be in the interest of justice that as directed by the Controlling Authority all the issues should be decided together so that the proceedings may come to an end at the earliest. The order does not call for interference, hence writ petition is dismissed. [ SMT.V.K.TAHILRAMANI,J.]