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Judgment
K.A. Swami, C.J.—This appeal is preferred against the order dated 2-9-1994 passed by the learned single Judge in W.P. No. 15336 of
1994.
In the writ petition, the appellant herein sought for quashing the order dated 31-5-1994 passed by the first respondent in I.D. No. 47 of 1979.
In that dispute reference has been made for adjudication of the following issue:
Whether the non-employment of the workman in question is justified and if not, to what relief they are entitled? To compute the relief, if any,
awarded in terms of money if it could be so computed""?
The Industrial Tribunal on a preliminary issue, has held in the impugned order as follows:
So, taking into consideration all these facts, I find that the enquiries held against these 3 workman V.O. Ganesan, I.V. Jayaraman and Rangamani
were not just and fair. In the counter, the respondent has stated at page 33 that if under the circumstances it becomes necessary to let in evidence
on merits of the enquiry against any of these workmen, it should be given an opportunity to let in evidence. Therefore, I find that the respondent
should be given an opportunity to let in evidence to prove the charges.
In the result, I find that the enquiries against the 3 workmen V.C. Ganesan, I.V. Jayaraman and R. Rangamani were not fair and just and the
enquiry in this industrial dispute is adjourned to 7-7-1994 for letting in evidence for proving the charges against these workmen.
Learned single Judge has held that it is not necessary to interfere at this stage, as the dispute has not yet been finally adjudicated upon and in the
event of an awarded being passed against the Management, it would be open to it to challenge the order dated 31-5-1994, along with the award.
Therefore, the learned single Judge has kept open all the contentions and dismissed the writ petition with the following order:
Thought it is not a case of want of jurisdiction in this Court to entertain such proceedings when considered absolutely necessary, the exercise of
discretion to intervene should be sparingly made in such deserving and extraordinary cases. Having regard to the facts of the case, I find that the
Industrial Dispute is of the year 1979 and still the matter has not reached a conclusion. I consider it inappropriate to intervene in the matter at this
stage of the proceedings. On this ground alone, the writ petition shall stand rejected. It is made clear that the rejection of this writ petitions shall not
constitute any expression of opinion on the merits of the contentions or the legality and propriety of the findings arrived at by the Tribunal by its
order dated 31-5-1994 which as indicated supra is available for the petitioner to be challenged and agitated in any proceedings to be initiated after
the final award is passed. That apart, it is always open to the petitioner and the petitioner shall also be at liberty to urge the issue relating to the
payment of backwages and the quantum thereof before the Tribunal itself for its consideration and pursue its further remedies if the ultimate award
in that respect also is not to the satisfaction of the petitioner. Leaving liberty with the petitioner to do as above, this writ petition shall stand
rejected.
In a recent decision rendered by us in N. Gurumurthy v. The Presiding Officer, II Additional Labour Court, Madras and another W.A. No. 223
of 1994 and C.M.P. No. 1846 of 1994, dated 28-11-1994, the finding recorded on a preliminary issued by the Labour Court was involved and
we have held after referring to the various decisions of the Supreme Court as follows:
Taking into consideration all these aspects, we are of the view that the findings recorded by the Labour Court on preliminary issues such as
whether the domestic inquiry has been fair or proper or the Labour Court has jurisdiction to entertain the dispute or whether the person claiming
the status as a workman is a workman or not, should not be interfered with, unless such findings are recorded without notice to any one of the
parties or recorded without any reason. The point raised for determination is answered accordingly. The preliminary order challenged in the writ
petition does not fall in any one of the aforesaid exceptions. Therefore we see no ground to interfere with the order passed by the learned single
Judge. Accordingly, the writ appeal is rejected.
It is contended by the learned counsel for the appellant, that the case on hand does not fall within the ratio of the aforesaid decision, inasmuch as
in the decision, the decision of the Supreme Court in Desh Raj Gupta v. Industrial Tribunal IV, Lucknow and another, 1991 I CLR 332, has not
been taken into consideration. It is submitted that as per the decision of the Supreme Court in Desh Raj Gupta''s case, if the order of punishment
passed by the Management is declared illegal, the date of dismissal cannot relate back to the date of the illegal order of the employer and the party
concerned would be entitled to his salary from the date of dismissal till the date of order of the Tribunal. The relevant portion of the judgment in the
said decision reads thus:
the second ground urged in support of the appeal appears to be well founded. The learned counsel is right in relying on the observations in Gujarat
Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Subha (1980) 2 LLJ 137, that if the order of punishment passed by the management is declared
illegal and the punishment is upheld subsequently by Labour Tribunal"", the date of dismissal cannot relate back to the date of the illegal order of the
employer. The appellant is, therefore, entitled to his salary from 16th August, 1976 to 30th July, 1980 and the entire amount should be paid by the
respondent-Bank within a period of three months from today. If the amount is not paid or offered to the appellant as directed, the respondent-
Bank will be liable to pay interest thereon at the rate of 12% per annum for the future period commencing on the date of expiry of three months
from today till the same is realised.
Based on the aforesaid observations of the Supreme Court, it is contended that in the instant case the Tribunal has held that there was no fair and
proper opportunity given to the workman and as such, it has given opportunity to the Management to adduce evidence to prove the charges and in
the event the Tribunal holds that the charges are proved, as per the decision of the Supreme court in Desh Raj Gupta''s case 1991 I CLR 332, the
order of dismissal will be operating only from the date of the order of the Tribunal and as such, the Management would be required to pay full
wages from the date of dismissal till the date of the order of the Tribunal. Therefore, the correctness of the preliminary order passed by the
Tribunal requires to be considered under Art. 226 of the Constitution. We may point out here that the fact that this Court does not interfere with
such preliminary order and keeps all the contentions open, is only intended to ensure that there is no delay caused in the disposal of the dispute by
the Tribunal or Labour Court, and it does not in any way affect the right of the Management to challenge the validity of the order, in the event it
becomes necessary for it to challenge the award. If this Court affirms the preliminary order of the Tribunal, the result would be as stated in the
decision in Desh Raj Gupta''s case cited supra and not otherwise. It is further contended that based upon the preliminary finding recorded by the
Industrial Tribunal in question, the workmen have already sought for interim relief. We may point out here that the finding recorded on a preliminary
issue does not set aside the order of dismissal and that it only records that a fair and proper opportunity has not been afforded to the workmen and
therefore, the Management has to prove the charges by adducing additional evidence. The question as to whether the workmen would be entitled
to interim relief or not is a matter which the Tribunal has to decide on the facts and circumstances of the case and not on the basis of the
preliminary finding recorded. Subject to the above observation, all the contentions of both parties are left open. Accordingly, the writ appeal is
dismissed. It is open to the appellant to challenge the validity of the order dated 31-5-1994, if it becomes necessary for it to challenge the Award.
As it is an old matter, the Industrial Tribunal first respondent is directed to dispose of the matter as expeditiously as possible and at any rate, not
later than six (6) months from today.
Appeal dismissed.