1. Heard the learned Advocates for the parties.
2. Rule. By consent, Rule is made returnable forthwith.
3. This is a writ petition filed by the petitioner, challenging an order dated 1.8.2001 passed by the Industrial Court, Nagpur, below Ex. 36 in Complaint (ULPN) No.1024 of 1999. The aforesaid complaint has been filed by the present respondent Nos. 2 & 3 in the Industrial Court, Nagpur, on 29.11.1999, inter alia, challenging the validity of an agreement dated 2.6.1999 entered into between the petitioner and respondent No.4 - representative union, for alleged violation of items No. 5 & 10 of Schedule IV and item No. 3 of Schedule III of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The challenge in this petition is on several grounds, which can be formulated herein under:
(a) That the Industrial Court has not properly appreciated the ruling of the Supreme Court in the case of Express Newspapers (P.) Ltd. Vs . The Workers and others, reported in : (1962)IILLJ227SC . In this regard, though reliance was placed by the petitioner on paragraph 12 of the said judgment, the Industrial Court has wrongly referred to portion of paragraph 19 of the said judgment which had no bearing on the issue raised by the petitioner before the Industrial Court, Nagpur. It is the contention that para 12 of the aforesaid apex Court judgment permits an Industrial Tribunal to examine as a preliminary issue, the question as to whether the dispute referred to it is an Industrial dispute or not.
(b) That there is no specific reference in the impugned order to the judgment of the apex Court in the case of Shramik Uttarsh Sabha v. Raymond Woolen Mills Ltd. & Ors., reported in 1995 (1) CLR 607 and subsequent judgment in the case of Warden & Company (India) Ltd., Bombay Vs . Akhil Maharashtra Kamgar Union, Thane, reported in : (2001)IILLJ217Bom has been mis-interpreted.
(c) So also, the ratio of the judgment in the case of Bajirao Rajaram Patil v. Maharashtra State of Cooperative Bank Limited, reported in 1997 Mh.L.J. 150 and the judgment in the case of Tata Hydro Electric Power Supply Co. Ltd. & Ors. v. Narendra L. Mansukhani & Ors., reported in 1999 (1) CLR 741 have also been misread.
3. Before I advert to the question as to whether a preliminary issue is required to be framed in this case, there is one relevant fact which requires mention. In the complaint filed by Respondent Nos. 2 & 3, they had preferred an application for grant of interim reliefs. The said interim reliefs were refused by the Industrial Court and the matter was carried to the High Court by respondent Nos. 2 & 3 by filing Writ Petition No.3522 of 2000. The said writ petition came to be rejected on 2.4.2001. However, while rejecting the same, this Court gave a direction to the Industrial Court to dispose of the matter within a period of one year, on its own merit. The period given to the Industrial Court to decide the entire matter on its own merit, therefore, comes to an end on 1.4.2002.
4. On 12.7.2001, the petitioner company preferred an application for framing certain issues as preliminary issues. In the said application, the draft issues as such were not framed. Immediately after the filing of this application, on 20.7.2001, the petitioner submitted draft preliminary issues. There are 5 issues which have been submitted as draft preliminary issues. It is not in dispute that these draft preliminary issues have not yet been settled by the Industrial Court till today. It appears that the application, for trying issues as preliminary issues, was agitated by the petitioner and after considering the reply filed by Respondent Nos.2 & 3, the Industrial Court, Nagpur, passed the impugned order dated 1.8.2001.
5. The advocate for the petitioner has taken me through several judgments of the Supreme Court, Bombay High Court, as well as other Courts. The first leg of his argument is that Respondent Nos. 2 & 3 have no right whatsoever to file a complaint under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, because such a complaint can only be filed by a representative union in view of Section 21(2) of the said Act, read with Section 30 of the Bombay Industrial Relations Act, 1946. Reliance has been placed by him on paragraphs 13, 14 and 15 of the judgment of the apex Court in the case of Shramik Uttarsh Sabha (supra). He has also referred to the judgment of the Division Bench of this Court in the case of Warden & Co. (India) Ltd., Bombay (supra). It does prima facie appear to me that these cases relied upon by the petitioner indicate that even a complaint under Items No. 5 & 10 of Schedule IV of M.R.T.U. & P.U.L.P. Act, 1971, can only be agitated by a representative union. Having said this, I hasten to add that I am not deciding this point because the issue before me is as to whether this point has to be agitated as preliminary point before the Industrial Court and it would not be proper on my part to conclude the point in the manner which would bind the Industrial Court in giving a full and proper decision on the issue.
6. The real point required to be decided by this Court is as to whether it is desirable to direct that certain issues submitted by the petitioner in draft form should be treated as preliminary issues and a direction should be given for decision of the same as preliminary issues. Section 30 of the M.R.T.U. & P.U.L.P. Act, 1971, deals with the powers of the Industrial and Labour Courts. Sub-section (3) of section 30 lays down the powers of such courts for the purpose of holding an enquiry and lays down that the Industrial and Labour Courts shall have the same powers vested in Courts in respect of various matters enumerated in the said sub-section. It has been noticed that there is no specific power for framing of issues laid down in sub-section (3). It, however, appears that such a power can be assumed in view of several judgments of the apex Court. In para 12 of the judgment in the case of Express Newspapers (P) Ltd. (supra), it was observed that '...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...' In the case of D.P. Maheshwari V. Delhi Administration, reported in AIR 1984 SC 153 the Supreme Court 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 jeopardises 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 Art. 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 Art. 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 Art. 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-jurisdiction 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 journeying 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.'
7. In the case of Rajiv Bhalchandra Gundewar v. Crompton Greaves Ltd., reported in 2000 (1) CLR 818 it was observed by this Court as follows :
'So far as direction given by the Industrial Court to the Labour Court that the said Court should frame all issues is concerned, the said direction cannot be faulted and is proper. The further direction given by the Industrial Court to first decide the issue of workman and if the finding on the said issue is in the negative, the Labour Court should not decide the remaining issues, cannot be countenanced and needs to be modified. Piecemeal decision on the issues always results in protracting the litigation and to avoid that it is always advantageous that all issues are decided together. It is true that the question whether the complainant is workman or not is a vital issue but at the same time, the other issues regarding the legality and correctness of the termination of the complainant needs to be gone into by the Labour Court also because even if it is held by the Labour Court that the complainant is not workman, the other issues raised in the complaint are required to be decided because in case the said finding is not upheld ultimately by superior court, the matter may not be required to be remanded for decision on other issues if the other issues are decided by the Labour Court. The decision of all issues simultaneously shall definitely curtail unnecessary delay in final disposal of the matter. The finding recorded by the Labour Court on the question whether the complainant is workman or not is not final and obviously, therefore, to obviate the necessity of remand at later stage by the superior court on the other issues in case the superior court does not agree with the Labour Court on its finding on the question whether the complainant is workman or not, it would be desirable that all issues are decided simultaneously including the question whether the complainant is workman or not.'
8. All the aforesaid decisions proceed on the presumption that a Labour Court / Industrial Court has a power to frame issues. In fact, it is observed that the framing of issues is eminently desirable because the framing of issues clarifies and pinpoints the questions which are required to be addressed and necessarily results in a more cogent and coherent judgment. Having said this, the quoted paras of the aforesaid judgments, can be said to lay down the following proposition :
(a) It is better that Tribunals, particularly those entrusted with a task of adjudicating labour disputes where delay may lead to misery and jeopardises industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues.
(b) High Court in the exercise of their jurisdiction under Art. 226 of the Constitution should not stop proceedings before a Tribunal so that a preliminary issue may be decided by them. The High Court in its writ jurisdiction should not normally interfere with the exercise of jurisdiction of special tribunals at interlocutory stages and on preliminary issues.
9. The advocate for the petitioner has referred to a judgment of the Division Bench of the Karnataka High Court which, after referring to the case of D.P. Maheshwari (supra), came to the conclusion that the Supreme Court judgment does not prohibit an Industrial Tribunal or Labour Court in a given case to try the issue touching the jurisdiction as a preliminary issue but it has to consider whether in the facts and circumstances of the case, it is necessary to decide the issue touching the jurisdiction as a preliminary issue or decide the same along with other issues. The dilemma in such matters is obvious. Even if a legal issue is allowed to be agitated as a preliminary issue, the same could result in a separate limb of litigation. In labour matters, it is possible that such a created separate limb of litigation may cause prejudice to the workman as in such cases the workman may lack the resources to carry out extended litigation. On the other hand, if all the issues are required to be decided together, the parties are required to spend their energies by going through the stage of leading all evidence. To my mind, at least in the present case, it would be desirable to follow the second course of action. It would be preferable to put the parties through the stage of evidence so that the complete judgment on all issues emerges thereafter rather than allowing the matter to be decided piecemeal and running a risk of multifarious litigation. This aspect of the matter has been highlighted by this Court in the case of Rajiv Bhalchandra Gundewar (supra).
10. In such circumstances, though I find that the Industrial Court has passed the impugned judgment without proper application of mind, for the additional reasons I have given hereinabove, I am not inclined to exercise the discretionary powers under Article 227 of the Constitution of India.
11. I find that the Complaint was filed on 29.11.1999. The written statement was filed as far back as on 10.1.2000. The matter was expedited on 2.4.2001 and yet the Industrial Court has not even framed the issues in the matter. In such circumstances, in order to do full justice in this case which has been made time bound, it would be proper to give a direction that the issues be framed within two weeks from the date of receipt of the writ of this Court by the Industrial Court, Nagpur, and that the trial of this case be taken up immediately thereafter and concluded with urgency and haste so that there is no violation of the time limit imposed by this Court in its order dated 2.4.2001.
12. In the result, in view of what is stated hereinabove and subject to the directions given above, this writ petition stands rejected. Rule is discharged. There shall be no order as to costs.