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2014 Supreme(Cal) 834
CALCUTTA HIGH COURT
Joymalya Bagchi, J.
Kamaraj English Medium School - Petitioner
Versus
The Andaman and Nicobar Administration and others – Respondents
W.P. No. 428 of 2014
Decided on : 19-12-2014.
Advocate Appeared:
For the Petitioner:KMB Jayapal, Advocate.
The Labour Court has jurisdiction to decide on jurisdictional facts in order to determine its own jurisdiction, and the question as to whether the respondent nos. 5 and 6 are workmen or not is essentially a mixed question of fact and law and therefore the court was loath to decide the same at the preliminary stage in exercise of extraordinary writ jurisdiction.
Headnote:
INDUSTRIAL DISPUTES ACT, 1947 - SECTION 10 - INDUSTRIAL DISPUTES - REFERRAL OF DISPUTE FOR ADJUDICATION - JURISDICTION OF LABOUR COURT - PRELIMINARY ISSUES - SETTLEMENT OF DISPUTE - VALIDITY.
Fact of the Case:
The petitioner, a school, challenged the impugned notification under section 10 of the Industrial Disputes Act, 1947 (hereinafter referred as the Act of 1947) referring the following dispute for adjudication: “Whether the action of Secretary, Andaman Nadar Uravinmurai Sangam (and its unit KEMS) preventing Smti N.Manimekalai, Ex- Clerk and Shri V.Kamaraj, Ex-Driver from performing their duty in Kamaraj English Medium School w.e.f 14/05/2014 is legal and justified? If not, what relief the Workmen are entitled to?”
Finding of the Court:
The court held that the Labour Court has jurisdiction to decide on jurisdictional facts in order to determine its own jurisdiction. The question as to whether the respondent nos. 5 and 6 are workmen or not is essentially a mixed question of fact and law and therefore the court was loath to decide the same at the preliminary stage in exercise of extraordinary writ jurisdiction. It ought to be left open to be decided by the Tribunal on merits if such objection is raised by the writ petitioner in the course of the adjudication. The court also held that the petitioner school is an industry under the Act of 1947, although teachers of such institution may not be workmen.
Issues: 1. Whether the Labour Court has jurisdiction to decide on jurisdictional facts in order to determine its own jurisdiction? 2. Whether the respondent nos. 5 and 6 are workmen or not? 3. Whether the petitioner school is an industry under the Act of 1947? 4. Whether the settlement of the dispute in the conciliation proceeding is valid?
Ratio Decidendi: 1. The Labour Court has jurisdiction to decide on jurisdictional facts in order to determine its own jurisdiction. 2. The question as to whether the respondent nos. 5 and 6 are workmen or not is essentially a mixed question of fact and law and therefore the court was loath to decide the same at the preliminary stage in exercise of extraordinary writ jurisdiction. It ought to be left open to be decided by the Tribunal on merits if such objection is raised by the writ petitioner in the course of the adjudication. 3. The petitioner school is an industry under the Act of 1947, although teachers of such institution may not be workmen. 4. The settlement of the dispute in the conciliation proceeding is valid.
Final Decision: The writ petition is dismissed.
Joymalya Bagchi, J.
The writ petition has been filed challenging the impugned notification dated 8th December, 2014 under section 10 of the Industrial Disputes Act, 1947 (hereinafter referred as the Act of 1947) referring the following dispute for adjudication:-
"Whether the action of Secretary, Andaman Nadar Uravinmurai Sangam (and its unit KEMS) preventing Smti N.Manimekalai, Ex- Clerk and Shri V.Kamaraj, Ex-Driver from performing their duty in Kamaraj English Medium School w.e.f 14/05/2014 is legal and justified? If not, what relief the Workmen are entitled to?"
2. It appears that the aforesaid employees, being respondent nos. 5 & 6 herein, had been dismissed from service by order No.97 dated 22.10.2013 and order No.46/KEMS/2013-14/508 dated 20.08.2013 without following the procedure laid down under the Act of 1947 and bye-laws of Andaman Nadar Uravinmurai Sangam. The matter was referred to conciliation before the Conciliation Officer.
3. It is apposite to mention that the aforesaid conciliation proceeding was challenged before this Court in WP No.173 of 2014 and WP No.174 of 2014. Both the writ petitions were dismissed by order dated 3rd July, 2014.
4. In the course of conciliation, President of the Sangam, which owned the School, agreed to settle the dispute with the respondent nos.5 & 6 and a memorandum of settlement was entered into by and between themselves under the auspices of the Conciliation Officer under section 12(3) and 18(3)(a) of the Act of 1947 under the following terms:
(a) The terminated employees shall be reinstated in service with immediate effect;
(b) The termination period shall be counted for other consequential benefit like service continuation, pension, gratuity etc.
5. In terms of the aforesaid memorandum of settlement, the said employees were reinstated.
6. They accordingly reported for their duty but it appears that they were obstructed from discharging their duties at the school by the management. They made representations to the Lieutenant Governor, Andaman and Nicobar Islands and the matter was referred to the Labour Commissioner for conciliation.
7. As the conciliation proceeding failed, the impugned reference was made in the instant case.
8. Mr.Jayapal appearing for the petitioner submits that the Industrial Tribunal has no jurisdiction in the matter inasmuch as the private respondent nos.5 and 6 are not workmen. He further submits that petitioner school is not an industry under the Act of 1947. He also submits that the settlement arrived at in the conciliation proceeding is without authority of law and not binding on the parties.
9. I have considered the submissions of the learned counsel for the petitioner and perused the materials on records.
10. It is trite law that industrial adjudication ought not to be done in a piecemeal manner thereby protracting the same and resulting in unending agony for workmen. It has been held in catena of decision that ordinarily all issues including preliminary issues ought to be decided as a whole so that it results in quick and efficacious resolution of industrial disputes.
11. Festering of industrial disputes through protracted litigation is neither the object of industrial law nor is conducive to industrial health.
12. Lamenting the insidious techniques adopted by employers in protracting industrial adjudication under the ruse of preliminary issues, Chinappa Reddy, J in D.P.Maheshwari v. Delhi Administration and others reported in (1983) 4 SCC 293 observed:-
"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 pre
