IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.02.2010 CORAM: THE HONOURABLE Mr. JUSTICE K. CHANDRU W.P. No.2331 of 2010 and M.P.No.1 of 2010 The Management Gandhipuram Sarvodhaya Sangh Vadavalli, Coimbatore – 41. Rep. by its Secretary G.Jayakanthan .. Petitioner Versus 1.The Presiding Officer Labour Court Coimbatore. 2.P.Kanagaraj .. Respondents PRAYER: Writ petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorari calling for the records relating to the preliminary award made in I.D.No.107 of 2000 dated 21.12.2009 on the file of the 1st respondent and quash the same. For Petitioner : Mrs.Rita Chandrasekhar For M/s.Aiyar & Dolia O R D E R Heard the submissions made by the learned counsel for the petitioner. 2.The petitioner is the Management of Gandhipuram Sarvodhaya Sangh at Vadavalli, Coimbatore. They have come forward to file the present writ petition against the order dated 21.12.2009 made in I.D.No.107/2000 passed by the first respondent. 3.It is seen from the records that the second respondent raised industrial dispute against his non-employment, dated 30.07.1999, since the Conciliation Officer could not bring over mediation. On the strength of the said failure report, he filed a claim statement before the first respondent Labour Court under Section 2-A(2) of the Industrial Disputes Act. https://hcservices.ecourts.gov.in/hcservices/ 4.The Labour Court took up the dispute on its file as I.D.No.107/2000 and notice was ordered to the writ petitioner Sangam. The writ petitioner Sangam filed a counter statement dated 04.12.2000. In the counter statement, one of the issues raised was that the second respondent was a Secretary of the Society and his nature of duties was either mainly administrative or supervisory and he is not a workman within the meaning of Section 2(s) of the Industrial Disputes Act. They also prayed that the said issue should be tried as a preliminary issue. 5.In the meanwhile, the second respondent filed an amended claim statement, after seeking permission from the Labour Court by filing I.A.No.45 dated 16.07.2007. The petitioner was also allowed to file an additional counter statement during July 2007. 6.Before the Labour Court, on the side of the petitioner Management, no witnesses were examined. The second respondent examined himself as WW1. The petitioner contended by filing 67 documents, which were marked as exhibits M1 to M67. On the side of the second respondent, 4 documents were marked as exhibits W1 to W4. The second respondent also filed exhibits W3 and W4 which is the copy of the counter statement filed by the Management in I.A.No.678/1999 in O.S.No.801/1999 as well as the copy of the order passed by the Civil Court in the interlocutory application taken up in the suit. 7.Incidentally, the Labour Court in para 18 referred to the fact namely, the case before the Civil Court wherein in the counter statement they have raised a plea that since the second respondent was "a workman" under Section 2(s) of the Industrial Disputes Act and therefore, he has to have his grievance settled only before the Industrial Disputes and the suit remedy was not available to him. The Labour Court, upon the perusal of the materials placed before it, came to the firm conclusion that the second respondent is a "workman" under Section 2(s) of the Industrial Disputes Act and therefore, the case cannot be thrown out at the threshold. 8.Mrs.Rita Chandrasekhar, learned counsel for the petitioner contended that inasmuch as a Secretary of an Institution like the petitioner and drawing a salary beyond Rs.5,000/- cannot a workman covered by the provisions of the Industrial Disputes Act and the Labour Court had erred in deciding the preliminary issue against the petitioner. However, this Court at this juncture, is not inclined to go into the validity or otherwise, of a preliminary order, pending final adjudication of the dispute by the Labour Court. 9.The Supreme Court vide its judgment in THE COOPER ENGINEERING LTD., VS. P.P.MUNDHE reported in AIR 1975 SC 1900 held that the Court cannot entertain writ petitions on preliminary issues. Such indulgence will not only delay the final award being passed, but also will derail the process of the industrial adjudication. https://hcservices.ecourts.gov.in/hcservices/ 10.The following passage found in para 22 of the judgment may be usefully extracted below: ".........But when the matter is controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the Labour Court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue. We should also make it clear 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. We are making these observations in our anxiety that there is no undue delay in industrial adjudication." 11.The Supreme Court in D.P.MAHESHWARI VS. DELHI ADMN. reported in AIR 1984 SC 153, dealt with the game played by employers in raising such preliminary issues and thereafter drag the issues forever. The following passage found in para 1, may be usefully 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, 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 jeoparadise, industrial peace, https://hcservices.ecourts.gov.in/hcservices/ 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 Art.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 Art.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 Art.136 are not meant to be used to break the resistance of workmen in this 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 Art.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." 12.In para 7 of the same judgment, the Supreme Court gave the following direction: "7.We are clearly of the opinion that the High Court was totally unjustified in interfering with the order of the Labour Court under Article 226 of the Constitution. We set aside the judgments of the learned single Judge and the Division Bench of the Delhi High Court, restore the order of the Additional Labour Court and direct the Additional Labour Court to dispose of the reference within a period of three months from the date of communication of this order to that Court." https://hcservices.ecourts.gov.in/hcservices/ 13.In the light of the above, this Court is not inclined to entertain the writ petition against the impugned preliminary order. Hence, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed. 14.It is needless to state that if the ultimate outcome of the award goes against the petitioner Management, they are at liberty to challenge both the preliminary order as well as the final award. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar TK To The Presiding Officer Labour Court Coimbatore. W.P.No.2331 of 2010 VS {CO} TP/23.2.2010. https://hcservices.ecourts.gov.in/hcservices/