M/S. DIGANATHA MUDRANA LTD. Vs MR. KRISHNA B. N. S/O. NARAYANA MAYYA

With the consent of both the learned counsel for the parties, this petition is being decided at this stage itself.

M/s. Diganatha Mudrana Limited, the petitioner, is aggrieved by the order dated 15.7.2017, passed by the learned Labour Court, E.S.I. Court,

Mangalore, whereby while allowing the application filed by the petitioner for framing of additional issue, the learned Labour Court has declined to

treat the issue as a preliminary issue, and to try it separately.

Briefly the facts of the case are that on 1.4.1993, the respondent, Mr. Krishna B. N., was allegedly appointed as a Production Supervisor for

the petitioner - Company.

Subsequently, on 1.7.1994, he was promoted to the post of Production Manager. However, during the course of his service, due to internal audit,

the petitioner realized that the respondent had misused his position, had caused monetary loss to the petitioner, and had made unlawful gain to

himself. Therefore, by order dated 4.6.2013, the respondent was suspended from his service. On 26.6.2013, the respondent was served with a

charge-sheet, wherein it was alleged that he has caused a loss of Rs.2,92,857/- to the petitioner - Company. Subsequently, the petitioner

appointed an enquiry officer. After competing the enquiry, by order dated 3.6.2014, the petitioner dismissed the respondent.

However, as the respondent was aggrieved by the dismissal order, he raised a labour dispute, and submitted his claim statement. The petitioner

filed its objection to the claim statement, and categorically contended that the respondent is not ""a workman"". Therefore, the learned Labour Court

does not have the jurisdiction to hear the case. Notwithstanding the stand being taken by the petitioner, the learned Labour Court did not frame

any issue with regard to the status of the respondent as being ""a workman"" or not? Therefore, the petitioner filed an application for framing an

additional issue. By the impugned order dated 15.7.2017, the application was allowed: the learned Labour Court has framed the additional issue

as ""Whether the applicant proves that he is a workman as defined under I.D. Act, 1947?"" However, the petitioner continues to be aggrieved by

the fact that the learned Labour Court has declined to treat the said issue as a preliminary one and to be adjudicated initially. Hence, this petition

before this Court.

Relying on the case of Management of Express Newspapers (Private) Ltd., Madras v. The Workers and others (AIR 1963 SC 569), and on

the case of Management of Rangaswamy & Co. v. D. V. Jagadish (ILR 1990 KAR 1387), Mr. Harish Kumar M. S., the learned counsel for the

petitioner, has vehemently pleaded that not only a preliminary issue can be framed by the Labour Court, but the learned Labour Court is also

required to try the preliminary issue separately. Since the very jurisdiction of the learned Labour Court depends on the answer to the preliminary

issue, the learned Labour Court should have tried the additional issue as the preliminary issue separately. Therefore, the learned Labour Court is

not justified in declining the petitioner''s request for taking up the additional issue as the preliminary issue. Hence, the impugned order deserves to

be set aside by this Court.

On the other hand, Mr. V. S. Naik, the learned counsel for the respondent, has relied on the case of D. P. Maheshwari v. Delhi Admn. And

Others (AIR 1984 SC 153), in order to buttress his plea that Management at times defeats the very purpose of the law, by raising frivolous

preliminary issues, by challenging a decision on the preliminary issue before this Court, and eventually before the Apex Court. Such a clever ploy is

used for prolonging the litigation between the Management and the workman. Therefore, in the case of D. P. Maheshwari (supra), the Hon''ble

Supreme Court has expressed its opinion that a issue need not be tried separately as a preliminary issue. In fact, all the issues are to be tried

together by the learned Labour Court. Therefore, according to the learned counsel, the learned Labour Court was justified in declining the request

made by the petitioner to try the additional issue as a preliminary issue separately. Hence, the learned counsel has supported the impugned order.

The learned counsel for the respondent further submits that the case of Management of Rangaswamy (supra), is distinguishable on factual matrix.

The case only deals with the interim relief sought for by the workman. It is in that context that this Court had opined that the question is whether the

party No.1 is a workman or not? While claiming the interim relief, the issue should be tried as a preliminary issue separately.

Indeed, in the case of Management of Express Newspapers (supra), a Full Bench of the Hon''ble Supreme Court had expressed the view that

the preliminary issue should be tried separately from the other issues. However, in the case of D. P. Maheshwari (supra), a Bench of equal strength

of the Hon''ble Supreme Court has observed as under:

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 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 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 worth while 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 added).

Thus, much water has flown, and the judicial thinking has changed with regard to the taking up of preliminary issue separately from the other

issues.

In case the learned Labour Court, or the Industrial Tribunal are required to try the preliminary issue separately from the other issues, a grave

possibility does exist that the litigation may run ad nauseam. Therefore, such a clever ploy used by the Management may dilute the beneficiary

provision of the Industrial Disputes Act. Such a subterfuge would not only jeopardise industrial peace, but would also deprive the workman of his

right to speedy trial. Therefore, this Court is also of the opinion that an issue cannot be treated as preliminary issue, and be tried separately.

Although the learned counsel for the petitioner has relied on the case of Management of Rangaswamy (supra), in the said case, this Court had

clearly observed that ""Therefore, the Labour Court ought to have decided the issue as a preliminary issue if it was required to consider the interim

relief sought for. Wherefore, in a case where no interim relief is sought for or is required to be granted the issue affecting the jurisdiction can also be

tried along with other issues."" (Emphasis added). Since in the present case, no interim relief is sought for, the learned Labour Court is justified in

concluding that all the issues will have to be tried together, and the additional issue cannot be treated as preliminary issue, to be tried separately.

For the reasons stated above, this Court does not find any illegality or perversity in the order. The petition, being devoid of merits, is hereby

dismissed. No order as to cost.