Case: Reliance Industries Limited Vs. S.D. Rane

If the view taken in the present case by the learned Presiding Officer is not possible or probable at all and that is also demonstrated, then, this Courts interference under Article 226 of the Constitution of India is fully justified."7. He also relied on a decision of the same learned Single Judge in the case of Mahindra and Mahindra vs. Suryabhan Avhad in Writ Petition No.5 of 2007 dated 5th March, 2007, which reads thus:"Normally, this Court is reluctant to interfere at a preliminary stage. However, when illegality and perversity of the above nature is noticed and seen, when the Courts below do not perform their duty in accordance with law, so also. When exercise of powers vested in them results in miscarriage of justice, then it is the duty of this Court to interfere in the writ jurisdiction."He pointed out that the decision in the case of Mahindra and Mahindra (supra) has been confirmed in Letters Patent Appeal.8. So far as correctness of the order of Labour Court is concerned, Mr. Talsania read over the evidence and the findings of both the Labour Court and Enquiry Officer extensively. Mr. Talsania pointed out the admissions given by the respondent in his cross-examination. The respondent admitted that he had submitted medical certificate that he was suffering from malaria from 1st January, 1997 till 17th January, 1997 and thereafter he did not submit any medical certificate to the Company but he remained absent for the period from 17th January, 1997 to 11th June, 1997 without leave. The respondent also admitted that he did not mention anything that he was taking treatment for his sickness after 17th January, 1997 till 11th June, 1997. Further in the cross-examination in Question No.8, it was put to him that since June 1996 to December 1996 he neither filled up any leave nor informed the management about his absentism and he accepted the same. The respondent accepted the correctness of the said suggestion. Further he drew our attention to the cross-examination of the Enquiry Officer wherein the Enquiry Officer has categorically denied that at any time the workmen had requested him to stop the proceedings due to his sickness. The Enquiry Officer has admitted that his conclusion that the respondent was running the hotel business and therefore he was not interested in work was not correct and was based on hearsay evidence. Mr. Talsania argued that the charge is not based on whether the reason for absentism was due to running hotel or not but the charge is in respect of absentism without leave. Running hotel business is an ancillary circumstance. Moreover, when it was admitted by the Enquiry Officer that it was an hearsay evidence then the finding of the Enquiry Officer on that point should not have been given much importance by the Labour Court for setting aside the order of the Enquiry Officer.9. The learned counsel for the respondent defended the order passed by the learned Single Judge and the Labour Court. He submitted that the medical certificate dated 17th January, 1997 of Dr. G.R. Gune disclosing that the respondent was under treatment from 1st January, 1997 till that date was produced and thereafter another certificate dated 14th February, 1998 of Dr. Gune that the respondent was suffering from malaria and hepatitis and was under his treatment from 1st January, 1997 upto 14th February, 1998 and he was physically fit from 15th February, 1998 is also on record explaining the absentism.10. A short point for our consideration in this appeal is whether any bar exists while exercising jurisdiction under Articles 226 and 227 of the Constitution of India when Award Part I passed by the Labour Court is challenged before this Court. The learned Single Judge refrained himself from examining the legality of the said Award Part I order relying on the judgment of the Apex Court in Cooper Engineering Ltd. (supra). It appears that the judgments of learned Single Judge in Indian Hotels Co. (supra) and Mahindra and Mahindra (supra) were not placed before the learned Single Judge wherein the learned Single Judge has discussed the observations made by the Supreme Court in the case of Cooper Engineering (supra) 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 regarding preliminary issue, when the matter, if worthy, can be agitated even after final award and it will be legitimate for the High Court to refuse to intervene at this stage. However, the Supreme Court in Cooper Engineering did not lay down as an absolute proposition of law that the High Court should not exercise its jurisdiction under Articles 226 and 227 in a petition challenging the preliminary Part I Award and should not go into the legality of the Award Part-I.This view is further confirmed by the Division Bench of this Court in Hindustan Unilever Ltd. vs. Hindustan Lever Employees Union & Anr., reported in 2009 II CLR 1083 in which the Division Bench while allowing the appeal held that the learned Single Judge ought to have considered whether the finding recorded by the Labour Court in Part I Award that the enquiry is not proper is correct or not. The Division Bench has set aside the order of the Learned Single Judge and requested the Single Judge to dispose of the petition expeditiously.11. Thus, considering the settled position of law, in writ jurisdiction there is no bar to test and question the order passed in Part I Award, if the same is perverse or illegal. In the present case, the learned Single Judge rejected the Writ Petition filed by the petitioner at the threshold by reading the decision of the Apex Court in the case of Cooper Engineering as the absolute bar. We do not want to go into the merits of the matter and give our opinion which might come into the way of the parties of agitating all the contentions before the learned Single Judge.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The learned Single Judge refrained himself from examining the legality of the said Award Part I order relying on the judgment of the Apex Court in Cooper Engineering Ltd. (supra). It appears that the judgments of learned Single Judge in Indian Hotels Co. (supra) and Mahindra and Mahindra (supra) were not placed before the learned Single Judge wherein the learned Single Judge has discussed the observations made by the Supreme Court in the case of Cooper Engineering (supra) 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 regarding preliminary issue, when the matter, if worthy, can be agitated even after final award and it will be legitimate for the High Court to refuse to intervene at this stage. However, the Supreme Court in Cooper Engineering did not lay down as an absolute proposition of law that the High Court should not exercise its jurisdiction under Articles 226 and 227 in a petition challenging the preliminary Part I Award and should not go into the legality of the Awardview is further confirmed by the Division Bench of this Court in Hindustan Unilever Ltd. vs. Hindustan Lever Employees UnionAnr., reported in 2009 II CLR 1083 in which the Division Bench while allowing the appeal held that the learned Single Judge ought to have considered whether the finding recorded by the Labour Court in Part I Award that the enquiry is not proper is correct or not. The Division Bench has set aside the order of the Learned Single Judge and requested the Single Judge to dispose of the petition expeditiously.11. Thus, considering the settled position of law, in writ jurisdiction there is no bar to test and question the order passed in Part I Award, if the same is perverse or illegal. In the present case, the learned Single Judge rejected the Writ Petition filed by the petitioner at the threshold by reading the decision of the Apex Court in the case of Cooper Engineering as the absolute bar. We do not want to go into the merits of the matter and give our opinion which might come into the way of the parties of agitating all the contentions before the learned Single Judge.