ORDER Sudhir Narain, J.
1. This writ petition is directed against the order of Presiding Officer, Labour Court, Allahabad, respondent No. 1, deciding three issues as preliminary issues.
2. Briefly stated the facts are that the petitioner initiated domestic enquiry against respondent No. 2. He filed Suit No. 835 of 1995 before VII Additional Civil Judge. West, Allahabad, challenging the validity of constitution of Enquiry Committee.
He also prayed restraining the petitioner from his smooth working. The trial court did not grant any injunction staying the enquiry proceedings. He filed another application for injunction and the Court passed an order that in pursuance of the enquiry report, no further action shall be taken against him. The petitioner filed appeals against the order passed by the trial court before the District Judge. Respondent No. 2 also filed appeals before the District Judge. The appeals filed by the petitioner were allowed and the appeals filed by respondent No. 2 were rejected.
3. In the enquiry proceedings, respondent No. 2 was found guilty and his services were terminated by the petitioner on 25.9.1995. Respondent No. 2 filed an application for amendment, in the suit seeking addition of relief against his termination order. This amendment application was allowed by the Court.
4. The petitioner raised an industrial dispute before the Conciliation Officer during the pendency of the said suit. The petitioner raised an objection that it was not maintainable. Respondent No. 2 filed an application to withdraw Civil Suit No. 835 of 1995 which was allowed by the Court on 29.3.1996. The industrial dispute was referred to for adjudication to respondent No. 1 on 30.5.1996. Respondent No. 2 filed written statement stating that his services were wrongly terminated and enquiry held against him be declared illegal. The petitioner filed reply to the said written statement. The Labour Court framed three preliminary issues as follows-
(a) Whether the domestic enquiry conducted was fair and legal and if not its effect?
(b) Whether the dispute was maintainable in view of paras 2 and 3 of the rejoinder statement of the employer?
(c) Whether the respondent No. 2 was a 'workman' within the meaning of Section 2 (z) of the U. P. Industrial Disputes Act. 1947, if not, its effect?
5. Respondent No. 1 vide order dated 11.8.1998, held that the respondent No. 2 was a workman within the meaning of Section 2 (z) of Industrial Disputes Act, 1947. The domestic enquiry conducted was invalid and the dispute was maintainable. The respondent No. 2 having chosen to file civil suit, will not debar the Labour Court to adjudicate the dispute referred to it by respondent No. 3. This order has been challenged in the present writ petition.
6. I have heard Sri V.R Agrawal, learned counsel for the petitioner, and Sri J.N. Tiwari, learned senior counsel for respondent No. 2.
7. A preliminary objection has been raised by the learned counsel for respondent No. 2 that this Court should not exercise the jurisdiction under Article 226 of the Constitution in respect of findings recorded by respondent No. 1. It is contended that the Labour Court should normally decide all the issues together and if any preliminary issue is decided, the writ petition against the finding recorded on the preliminary issue should not be examined at that stage in exercise of writ jurisdiction by the High Court.
8. There is always a controversy as to when the preliminary issue should be decided by the Tribunal or the Labour Court while adjudicating the dispute referred to it by the State/Central Government. There are three aspects. Firstly, whether the Tribunal or the Court should decide any matter as a preliminary issue. Secondly, if it chooses not to decide any issue as preliminary issue, whether the High Court in its Jurisdiction under Article 226 of the Constitution should issue a mandamus to decide any issue as a preliminary issue and lastly, whether the High Court should entertain a writ petition to examine the decision of the Labour Court in respect of preliminary issues decided by it.
9. The Labour Court, on the pleadings of the parties, framed certain issues. Normally the management asks the Court to decide the issues as preliminary issues but sometimes it is with a view to delay the proceedings. The preliminary issues are decided to cut short matter instead of embarking upon the detailed enquiry on the pleadings of the parties after examining the oral and documentary evidence which may be adduced by the parties.
10. In D.P. Maheshwari v. Delhi Admn. and others. AIR 1984 SC 153, the Court observed :
"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."
Twelve years after this decision, the similar observation has been made in National Council for Cement and Building Materials v. State of Haryana and others, (1996) 3 SCC 206, as under :
"After the decision of this Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa, (1978) 2 SCC 213 in which a comprehensive definition of the word 'industry' was attempted to be given followed by legislative changes in the Industrial Disputes Act, it was thought that the Management or Establishments would give up their old habit of raising preliminary issues in Industrial References as to "whether they are an 'Industry' within the meaning of the Industrial Disputes Act or not", but Samuel Johnson's observation that "one of the maxims of civil law is that definitions are hazardous" is still true and this question continues to be raised almost in every case before the Tribunal."
The Court relied upon the decision in Cooper Engineering Limited v. Shri P.P. Mundhe. (1975) 2 SCC 661, wherein it was observed that the Industrial Tribunals should decide the preliminary issues as also the main issues altogether so that there may not be any further litigation at the interlocutory stage. It was further observed that there was no Justification for a party to the proceedings to stall the final adjudication of the dispute referred to the Tribunal by questioning the decision of the Tribunal on the preliminary issues before the High Court.
11. In Cipla Ltd. and others v. Ripu Daman Bhanot and another, (1999) 4 SCC 188, the Court cautioned that the Labour Court should not split the issues and made the following observation :
"We would only say that the Labour Court should decide all the issues together and shall not split the issues into preliminary or non-preliminary issues so that the proceedings may come to an end at the earliest."
12. The learned counsel for the petitioner relied upon the decision of a Division Bench of Karnataka High Court in Management, Rangaswamy and Co. v. D.V. Jagadish, Major and another, 1990 (61) FLR 584, where an order was challenged in the High Court against the order directing the party to pay interim relief while the matter was pending before the Labour Court. One of the pleas raised was that the interim relief could not be granted till the question as to whether the claimant is a workman or not is decided. In that context, it was held that it is for the Tribunal or the Labour Court to decide any issue as preliminary issue considering the fact as to whether it touches the Jurisdiction of the Court and it is necessary to decide such issue before deciding other issues. This case does not lay down that the Labour Court is bound to decide an issue as a preliminary issue.
13. This Court in its Full Bench decision in Swarup Vegetable Products Industries Ltd. v. Labour Court-II, Meerut and others, 1997 (77) FLR 548, overruled the decision in M/s. Star Paper Mills Ltd. v. Presiding Officer, Meerut, 1987 Labour and Industrial Cases 1854, wherein the Court had taken the view that if proper request is made at the appropriate stage either by an employer or an employee before the Tribunal or any other forum under the Act for the framing of a preliminary issue, the same may be considered and allowed and the Tribunal concerned may frame a preliminary issue. If such an issue goes to the root of the matter. Further observation was that the decision on a preliminary issue framed on the validity of the proceedings in the domestic enquiry will be a decision on jurisdictional fact and normally, a Court or Tribunal will not be acting arbitrarily, but also failing to exercise its jurisdiction if it does not accede to the request of an employer to frame a preliminary issue on the validity of the proceedings in the domestic enquiry and give a decision thereon. The Full Bench while overruling this decision observed :
"The Industrial Tribunal Labour Court should particularly bear in mind the provisions of Section 11A of the Central Act and Section 6 (2A) 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. Viewed in this angle, we hold the Division Bench of this Court in the case of D.C.M. Shriram Industries Ltd. was not right in holding that the management can lead evidence to establish the charge against the workman only after decision on the issue whether domestic enquiry was fair and proper and, therefore, such issue should be taken as a preliminary issue. It is, accordingly, overruled. The decision of the single Judge in M/s. Star Paper Mills Ltd. (supra) is also overruled."
14. The other question is if an issue has been decided as a preliminary issue by the Labour Court/Tribunal whether the High Court should exercise its Jurisdiction to examine the decision or findings recorded by the Labour Court/Tribunal on such preliminary issue, in D. P. Maheshwari's case (supra), the Supreme Court observed :
"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 the Supreme 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 workman in this fashion."
15. The Labour Court decides an issue as preliminary issue with an object that it may not proceed further on coming to the conclusion that it has no jurisdiction in the matter referred to it, but in case it decides the issue holding that it has jurisdiction, it has to adjudicate other issues. The decision of the Labour Court on such preliminary issue can be decided by the High Court, after all the issues are decided by the Labour Court. In case the High Court entertains a writ petition against the decision on preliminary issue and stays further proceedings of the Labour Court/Tribunal, it shall certainly delay the hearing of the adjudication case pending before the Labour Court. The steps which were taken to decide the preliminary issue to cut short the matter shall be prolonged by entertaining a writ petition. The matter may not rest there and ultimately the party may file appeal or more to the Supreme Court. The procedure adopted by the Labour Court to decide an issue as preliminary issue to cut short delay, is sometimes frustrated when the High Court entertains a petition in exercise of power under Article 226 of the Constitution. The power of the High Court though is wide under Article 226 of the Constitution to pass appropriate order in the ends of justice but it is an extraordinary Jurisdiction and normally it does not entertain a petition in respect of finding recorded by the Labour Court unless there are exceptional circumstances in a particular case.
16. The learned counsel for the respondent has placed reliance upon the decision in M/s. Triton Values Ltd. v. Labour Court, Mysore and another. 1999 (81) FLR 577, wherein an Industrial dispute was raised by the workman challenging his termination order. The Labour Court framed a preliminary issue regarding validity of domestic enquiry and found that all the four enquiries were invalid. The said order was challenged under Article 226 and Article 227 of the Constitution by the employer. The Court referred to the decision in D.P. Maheshwari's case (supra) and took note of the observation made by the Supreme Court. The decision of Harinarayan Srivastav v. United Commercial Bank and another, 1997 (76) FLR 268, was referred to wherein it was held that failure to permit the workman to engage an advocate was not violative of principles of natural justice and such decision was given when the matter was pending adjudication before the Labour Court. The Court relying upon that decision considered the case on merits with the observation :
"I am, therefore, of the opinion that the present case be one similar to Harinayrayan Sriuastau's case. It, is permissible to go into the merits under Article 226 of the Constitution."
17. In Tandw and Navandgi Stone Quarries (P.) Ltd., Basheerabad, Andhra Pradesh v. Their Workmen, 1964 (8) FLR 277, the Supreme Court upheld the findings recorded by the Tribunal that the claimants were workmen. The workmen raised certain demands. The Central Government referred the matter for adjudication to Industrial Tribunal. The Tribunal accepted certain claims made by the workmen. The employer challenged the Award of the Industrial Tribunal. One of the objections was that a preliminary objection was raised whether the respondents were workmen employed by the appellant but that was not decided by the Tribunal. The case of the appellant therein was that they were not its workmen. The Supreme Court by an interlocutory judgment, directed the Tribunal to record a finding as to whether respondents were workmen after giving opportunity to the parties. The Tribunal recorded a finding and remitted it to the Supreme Court. It was not a case where the findings of the Tribunal on any preliminary issue was challenged under Article 226 of the Constitution.
18. In Management of Express Newspapers (Private) Ltd. v. The Workers and others, AIR 1963 SC 569, the facts were that the Madras Government referred the dispute to the Industrial Tribunal. Madras for its adjudication two industrial issues which had arisen between the parties. This order was challenged in the writ petition. The High Court held that it had jurisdiction to entertain an application for a writ of prohibition even at the initial stage of proceedings commenced before Special Tribunal but on the facts it was observed that it will be proper that the matter be tried by the Tribunal at the first instance as that involved question of fact. In making the order, the Court indicated the nature of the dispute and the question of fact which the Industrial Tribunal may have to try and limits of its jurisdiction. The Supreme Court in paragraphs 10 and 12 of the judgment refers to the powers of High Court, it was observed :
"There is no doubt that in law, the appellant is entitled to move the High Court even at the initial stage and seek to satisfy it that the dispute is not an industrial dispute and so, the Industrial Tribunal has no jurisdiction to embark upon the proposed enquiry."
In paragraph 12 it was observed :
"It is also true that even if the dispute is tried by the Industrial Tribunal, at the very commencement the Industrial Tribunal will have to examine as a preliminary issue the question as to whether the dispute referred to it is an industrial dispute or not, and the decision of this question would inevitably depend upon the view which the Industrial Tribunal may take as to whether the action taken by the appellant is a closure or a lockout. The finding which the Industrial Tribunal may record on this preliminary issue will decide whether it has Jurisdiction to deal with the merits of the dispute or not. If the finding is that the action of the appellant amounts to a closure, there would be an end to the proceedings before the Tribunal so far as the main dispute is concerned. If, on the other hand, the finding is that the action of the appellant amounts to a lockout, which has been disguised as a closure, then the Tribunal will be entitled to deal with the reference. The finding which the Tribunal may make on this preliminary issue as a finding on a jurisdictional fact and it is only when the jurisdictional fact is found against the appellant that the Industrial Tribunal would have Jurisdiction to deal with the merits of the dispute. This position is also not in dispute."
The Supreme Court was not examining whether the High Court should entertain the writ petition against a finding recorded by the Labour Court on a preliminary issue.
19. In the present case, three preliminary issues have been decided, issue No. 4 is whether respondent No. 2 is a workman. It is a mixed question of law and fact. The question whether a person is workman is a mixed question of law and fact as held in Management of M/s. Bharat Kala Kendra Private Limited v. R.K. Baweja and another, 1981 Labour and Industrial Cases 893. It has been found that respondent No. 2 is a workman. Issue No. 2 is whether the domestic enquiry conducted was fair and legal and if not, its effect. This is also a question of fact which can be determined only after examining the evidence in the case, issue No. 3 is whether the dispute was maintainable in view of paragraphs 2 and 3 of the rejoinder statement of the employer. The contention of the petitioner was that respondent No. 2 had elected to file Civil Suit and he having filed the Civil Suit, it was not open for him to raise industrial dispute. In effect, he was challenging the decision to make a reference by the Government. This matter also requires consideration taking into account various facts and circumstances of the case. The Labour Court having decided all these issues in favour of respondent No. 2, it has to decide the remaining issues on evidence.
20. I do not find that it is a fit case for interference under Article 226 of the Constitution of India. It will be open to the petitioner to challenge the findings on all these issues after respondent No. 1 finally decides the case.
21. The writ petition is accordingly dismissed.