Universal Glass vs Presiding Officer, Labour Court-II, U.P. and Another

Prakash Krishna, J.—It is an unfortunate case. In respect of an incident dated 27th of October, 1986 after facing domestic inquiry, the services of respondent workman, respondent No. 2 herein, was terminated on 18th of December, 1987. The matter was referred for adjudication by the State Government on 23.12.1992, yet the decision of Labour Court is not in sight due to the dialectic tactics adopted by its employer, the petitioner herein.

This is second round of litigation at the instance of the employer. In the first - round of the litigation, the employer succeeded in obtaining a stay order by filing writ petition No. 3456 of 1993 staying the further proceedings in the adjudication case which remained pending over a period of decade and the petition was ultimately dismissed on 15th of March, 2004 with hope that the Labour Court will decide the adjudication case within a period of four months. But the said hope has been belied.

This is another attempt to forestall the proceedings in the adjudication case by raising some usual preliminary objections and pressing that preliminary objections should be disposed of first.

The services of respondent No. 2. Harpal Singh were terminated in respect of the alleged incident dated 27th of October, 1986 after holding domestic inquiry wherein he was found guilty of misconduct. An industrial dispute against the termination order was raised by him and the matter was referred by the State Government to Labour Court for adjudication. The said matter is still pending consideration and it has now been renumbered as adjudication case No. 84 of 2008. Earlier, against the reference order, a writ petition No. 3456 of 1993 was filed in this Court which was dismissed on 15th of March, 2004 as having become infructuous. After dismissal of the writ petition, on 15th of September, 2008 a written statement was filed on behalf of the petitioner. The pleadings before the Labour Court are complete and issues have been framed. One of the objections raised by the petitioner is that the issue as to whether the departmental inquiry was fair and proper opportunity of hearing was given to the respondent workman, be decided first. The contention is that if the said issue is decided against the employer, the employer will have a right to adduce evidence before the Labour Court to establish the guilt of the workman before it. With this view in mind, an application was filed by the employer being application No. 25-D to review and recall the order dated 3rd of December, 2008 and decide the aforestated controversy as a preliminary issue. The said application having been rejected by the impugned order dated 4th of February, 2009, the present writ petition has been filed.

Heard Sri Y.K. Sinha, the learned Counsel for the petitioner and Sri Sudhanshu Narain, learned Counsel for the respondent workman.

Reiterating the stand which was taken by the petitioner before the Labour Court, the learned Counsel for the petitioner submits that the issue regarding the legality and validity of the domestic inquiry should be decided by the Labour Court first. In other words, it should be decided as a preliminary issue. The learned Counsel for the respondent workman, on the other hand, submits that the respondent workman is going to attain the age of superannuation or he has already attained the age of superannuation as he is aged about 59 years when counter affidavit was filed. But still his grievance against the illegal termination has not been reckessed. The respondent workman is fighting his case from one Court to another but there is no final adjudication of the main issues so far Submission is that in the facts and circumstances of the present case, all the issues should be decided simultaneously as sufficient time has already gone.

Considered the respective submissions of the learned Counsel for the parties and also perused the decision relied by them.

The learned Counsel for the petitioner has placed reliance upon the The Cooper Engineering Limited Vs. Shri P.P. Mundhe, Delhi Cloth and General Mills Company v. Ludh Budh Singh 1972 (25) FLR 1 , The Workmen of M/s. Firestone Tyre & Rubber Company of India (Pvt.) Ltd. v. The Management and others 1973 (26) FLR 1 , in support of the writ petition.

To buttress his argument that whenever a dispute with regard to the legality and fairness of a domestic inquiry is in dispute and the Management has reserved its right to adduce the evidence if it is held that the inquiry conducted by it was defective, the Tribunal or the Labour Court, as the case may be, should adjudicate upon the legality and validity of the domestic inquiry first, as preliminary issue. Reference was also made to a recent judgment of Constitution Bench of the Apex Court in Karnataka State Road Transport Corpn. v. Lakshmidevamma arid another 2001 LIC 1777, Finding a conflict in the decisions in Shambhu Nath Goyal v. Bank of Baroda 1983 (47) FLR 438 , and Rajendra Jha Vs. Presiding Officer, Labour Court, Bokaro Steel City, District Dhanbad and Another, the matter was referred to a Bench of more than Three Judges. On reference, the Constitution Bench approved the ratio as laid down in the case of Shambhu Nath Goyal (supra). In the case of Shambliu Nath Goyal, it was laid down that employer has in law a right to adduce additional evidence in a proceeding before the Labour Court or Industrial Tribunal either u/s 10 or section 33 of the Industrial Disputes Act questioning the legality of the order terminating the service must be availed of by the employer by making a proper request at the time when it files its statement of claim or written statement or makes an application seeking either permission to take certain action or seeking approval of the action taken by it.

In para 5 of the judgment it has been observed that in the case of Rajendra Jha (supra) the Court did not lay down an)'' law contrary to the judgment of Shambhu Nath Goyal''s case (supra). However, it was held that the law laid down by the Apex Court in the case of Shambhu Nath Goyal is the correct law on the point. The learned Senior Counsel for the petitioner referred various paragraphs of the said judgment such as 8, 11, 15, 16, 17 and 18 to show that the said judgment lays down the law that in such matters where validity of domestic inquiry is to be examined, the said issue should be decided as a preliminary issue. It may be noticed that the Apex Court has in a relied upon case i.e. Karnataka State Road Transport Corporation (supra) has referred its earlier judgment in Delhi Cloth and General Mills v. Ludh Budh Singh (supra), Cooper Engineering Ltd. v. P.P. Mundhe and other cases.

It may be noticed that in the Full Bench Decision of this Court i.e. M/s Swarup Vegetable Products Industries Ltd. (supra) relied upon by the learned Counsel for the respondents the following issues were referred for consideration by a Larger Bench:-

Whether the Labour Court/Industrial Tribunal have any statutory or legal obligation to decide any issue as preliminary issue while adjudicating an industrial dispute in accordance with procedure provided under Rules framed under U.P. Industrial Disputes Act ?

Whether the High Court can in exercise of its jurisdiction under Article 226 of the Constitution mandate a Court or Tribunal to follow a procedure contrary to statutory Rules?

The Full Bench Decision in the case of M/s. Swarup Vegetable Products Industries Ltd. (supra) considered the various judgments of the Apex Court including that of the relied upon judgments by the petitioner namely Cooper Engineering Ltd. v. P.P. Mundhe (supra), Shambhu Nath Goyal v. Bank of Baroda and others (supra) and held as follows:-

From the conspectus of views expressed by the Supreme Court in the aforementioned decisions, the position that emerges is that once a reference has been made to an Industrial Tribunal, then all the issues which arise, Whether jurisdictional or merit, must be decided together. The process of adjudication by the Industrial Tribunal/Labour Court must be completed as expeditiously as possible. It is not obligatory on the Industrial Tribunal or Labour Court to frame a preliminary issue. Law does not enjoin the Tribunal to decide if the enquiry was fair and proper initially and then to grant an opportunity to the management if the finding went against it, to adduce evidence on the delinquency of the workmen and the punishment imposed. On the other hand the law casts a duty on the Industrial Tribunal/Labour Court to decide not only whether the domestic enquiry was fair and proper but also whether the punishment imposed by the employer was justified in the facts and circumstances of the case. The Industrial Tribunal/Labour Court should consider the entire case in the light of the evidence adduced before it. The Industrial Tribunal/Labour Court should particularly bear in mind the provisions of section 11-A of the Central Act and section 6(2-A) of the U.P. Act. (U.P. Industrial Disputes Act), and remember that the main purpose of creating a forum for industrial adjudication is to avoid delay in disposal of proceedings.

It specifically overruled its earlier Division Bench judgment in the case of D.C.M. Sriram Industries Ltd. v. State of U.P. and others 1996 (72) FLR 713, wherein it was held that Management can lead evidence to establish a charge against the workman only after the decision on the issue as to whether the domestic inquiry was fair and proper and therefore such issue should be taken as a preliminary issue. The said decision has been subsequently overruled.

In D.C.M. Shriram Industries Ltd. Vs. State of U.P. and others, identical dispute was sought to be raised by the employer. This Court held that all issues be decided together and expeditiously and no interference is warranted under Article 226 of the Constitution of India.

In view of the aforestated authoritative pronouncements by a Full Bench Decision of this Court, no interference under Article 226 of the Constitution of India is called for.

There is no provision under the Act atleast none was pointed out to this Court by the petitioners Counsel which may command an Industrial Tribunal to decide preliminary issue first. On the contrary the Apex Court has consistently held that in labour disputes, the High Court should not interfere against an order passed at the interlocutory stage of a proceeding.

In the case of D.P. Maheshwari v. Delhi Administration and others 1983 (47) FLR 477 , the Apex Court has held that 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. It has been held that 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. The relevant portion is reproduced below:

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 crying 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 consequence. 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 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.

Reference may also be made to S.K. Verma v. Mahesh Chandra and another 1983 (47) FLR 313. In that case, Supreme Court commented that there appears to be three preliminary objections which have become quite the fashion to be raised by all employees. Firstly, there is no industry. Secondly, there is no industrial dispute. Thirdly, the workman is ''no workman''.

The attention of the Court was also invited to National Council for Cement & Building Materials v. State of Harnaya 1996 (2) CLR 234 (SC) : 1996 (2) LLN 49, wherein the Court deprecated the practice of the management to raise preliminary issues with a view to delay adjudication of industrial disputes.

In our considered opinion, in the present case, it cannot be said that the Courts below have committed any error of jurisdiction in not deciding the case to the maintainability of claim-petitions as preliminary issue. It is well settled that generally, all issues arising in a suit or proceeding should be tried together and a judgment should be pronounced on those issues.

Before more than hundred years, the Privy Council in Tarakant v. puddomoney (1866) 10 MIA 476, favoured this approach.

Speaking for the Judicial Committee, Lord Turner stated:

The Courts below, in appealable cases, by forbearing from deciding on all the issues joined, not infrequently oblige this Committee to recommend that a cause be remanded which might otherwise be finally decided on appeal. This is certainly a serious evil to the parties litigant, as it may involve the expense of a second appeal as well as that of another hearing below. It is much to be desired, therefore, that in appealable cases the Courts below should, as far as may be practicable, pronounce their opinions on all the important points.

(Emphasis supplied)

The above principle has been consistently followed. Supreme Court dealing with the provisions of Order XIV, Rule 2 (prior to the amendment Act of 1976), in Major S.S. Khanna Vs. Brig. F.J. Dillon, stated;

Under Order XIV Rule 2, Code of Civil Procedure, where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part (hereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the Court; not to do so, especially when the decision on issues even of law depend upon the decision of issues of fact, would result in a lop-sided trial of the suit

(Emphasis supplied)

The Law Commission also considered the question and did not favour the tendency of deciding some issues as preliminary issues. Dealing with Rule 2 of Order XIV (before the amendment), the Commission stated;

This rule has led to one difficulty. Where a case can be disposed of on a preliminary point (issue) of law, often the Courts do not inquire into the merits, with the result that when, on an appeal against the finding on the preliminary issue the decision of the Court on that issue is reversed, the case has to be remanded to the Court of first instance for trial on the other issues. This causes delay. It is considered that this delay should be eliminated, by providing that a Court must give judgment on all issues, excepting, of course, where the Court finds that it has no jurisdiction or where the suit is barred by any law for the time being in force.

(Emphasis supplied)

In view of the above discussion, no interference is called for. The writ petition is hereby dismissed summarily with cost of Rs. 10,000/- (Rupees Ten Thousand) payable by the petitioner to the contesting respondent No. 2 within a period of one month, failing which the said amount shall be recovered as arrears of land revenue from the petitioner along with collection charges.

Since the matter is old one and the Court had earlier directed on 15th of March, 2004 to dispose of the reference within a period of four months, it is provided that the Labour Court shall positively dispose of the present reference within a period of four months and if necessary, it may hear the case on day to day basis and any adjournment at the instance of the employer shall be granted only on payment of heavy cost which shall not be less than Rs. 500/- per adjournment.