Issue of computing overtime wages decided against management.

K.A. Swami, C.J.

This writ appeal is preferred against the order dated 22. 1996 passed by the learned single Judge in W.P. No. 15621 of 1995, declining to exercise jurisdiction under Art.226 of the Constitution, having regard to the decision of a Division Bench of this Court is N.Gurumurthy v. Second AdditionalLabourCourt, (1995)1 LLN. 1022. Therefore, the petitioner in the writ petition has come up with this appeal.

2. It is contended on behalf of the appellant that the decision in N.Gurumurthy’s case, (1995)1 L.L.J. 1022 related to a case wherein the dispute was raised on a reference made under Sec.10 of the Industrial Disputes Act, whereas in the instant case, there is no such reference and only a petition under Sec.33-C (2) of the Industrial Disputes Act (hereinafter referred to as “the Act”) is filed. Therefore, it is contended that the reasons relevant to the proceedings on a reference made under Sec.10 of the Act will not be relevant while deciding the question as to whether this Court should exercise jurisdiction under Art.226 of the Constitution against the preliminary finding as to jurisdiction recorded by the Labour Court in a petition under Sec.33-C (2) of the Act.

3. The second respondent has filed a claim petition under Sec.33-C(2) of the Act, which has been numbered as O.P. No.58 of 1993 for computation of overtime wages. One of the contentions raised by the appellant- Management is that the second respondent is not a workman and therefore, the proceedings under Sec.33-C(2) cannot be maintained. In the light of the said contention, the Labour Court has raised a preliminary issue and has decided the same by the order dated 29. 1995 holding that the second respondent is a workman. It is not in dispute that the said decision has been rendered by the Labour Court after affording due opportunity to both sides to adduce evidence and after hearing both sides and a reasoned order has been passed. Therefore, as per the decision of this Court in N. Gurumurthy’s case, (1995)1 L. L.N. 1022, in such a situation interference by this Court under Art.226 of the Constitution is not warranted.

4.. However, as pointed out above, a distinction is sought to be made on the ground that the proceeding in question is not a dispute raised under Sec. 10 of the Act, but it is a proceeding under Sec.33-C (2) of the Act, therefore, as held by a learned single Judge of the Karnataka High Court in Binny Limited v. Additional Industrial Tribunal, (1985)1 L.L.N. 942, petition under Art.226 of the Constitution can be entertained. In that decision, the learned single Judge of the Karnataka High Court that held in Paragraph 32 as follows:

“Relying on the Judgment of the Supreme Court in D.P. Maheswari v. Delhi Administration, (1984)1 L.L.N. 1, it was contended for the workmen that these writ petitions should not be entertained as, in the impugned order the Tribunal had only decided the preliminary issue. I am unable to agree. In the aforesaid Judgment, the Supreme Court has expressed against the entertaining of a writ petition on every order on preliminary issue and issuing orders of stay which would result in procrastination and delay in the final resolution of the main dispute. Therefore, it is clear that if in a given case the decision on preliminary issue even in favour of the party, who has come to the High Court in a petition under Art.226 of the Constitution is not likely to end the main dispute and would unnecessarily prolong the dispute pending before the Tribunal it is appropriate for this Court not to entertain the writ petitions. But, in a case where the preliminary issue decided by the Labour Court is such that any decision in favour of the party approaching the High Court in a petition under Art.226, would end the dispute itself finally or would curtail unnecessary proceedings before the Tribunal, the entertaining of the writ petition would be expedient in the interest of speedy final decision of the dispute itself. In fa