Labour Courts cannot consider maintainability of claims as preliminary issues if it requires factual evidence; disputes must be adjudicated on merits.

JUDGMENT

This writ petition is filed by a Printing and Publishing Company challenging Exts.P1, P7 and P8 orders. Ext.P1 is the reference order issued by the 1st respondent in exercise of powers under Section 10 (1) (c) of the Industrial Disputes Act, 1947 ('I.D. Act', for short) and Section 17 (2) of the Working Journalists and Other News Paper Employee (Conditions of Service) and Miscellaneous Provisions Act, 1955. Ext.P7 is the order of the Labour Court allowing Ext. P4 application of the 2nd respondent Union to re-open the evidence and to examine a witness and Ext. P8 is the order rejecting Ext.P6 application of the petitioner to consider the question of maintainability of the claim as preliminary issue.

2. The 2nd respondent Trade Union raised an industrial dispute alleging non payment of wages to the employees based on the recommendations of Majitha Board constituted under Sections 9 and 13 B of the Working Journalists and Other News Paper Employee (Conditions of Service) and Miscellaneous Provisions Act, 1955. By Ext. P1, the Government referred the dispute for adjudication to Labour Court. According to the petitioner, by virtue of Section 10 (1) (d) read with Section 7-A of the I.D Act, only Industrial Tribunals have jurisdiction to consider disputes pertaining to wages, the period and mode of payment. The Labour Court, by Ext. P8, dismissed Ext.P6 application of the petitioner to consider the question of maintainability of the claim as preliminary issue stating that the petition is highly belated and that there cannot be any peace- meal adjudication of industrial dispute and the entire matter can be considered in the award after taking evidence.

3. This Court, in Lupin Ltd. v. Suresh [2007(4) KLT

1092], has held that when question of maintainability of reference is raised as an issue, it is not necessary to consider the same as a preliminary issue. The Court in paragraph 2 of the decision held as follows:-

“2. Before considering the issues involved, I am constrained to note that the procedure adopted by the Tribunal is against the decisions of this Court as well as that of the Supreme Court in the matter of consideration of industrial disputes by Labour Courts and Industrial Tribunals. This Court and the Supreme Court have time and again held that ordinarily the Industrial Tribunal should not encourage piece meal adjudication. Of

course, while considering the validity of dismissal, discharge and termination of service of a workman as a punishment on the basis of a domestic enquiry, certainly an Industrial Tribunal or a Labour Court is to consider the validity of the enquiry as a preliminary point. However, when the question of maintainability of the reference is raised as an issue, it is not at all necessary to consider the same as a preliminary issue, especially when the consideration of that issue would require ascertainment of facts on evidence, which can be done while considering the issue referred for adjudication after evidence is adduced by both sides in the ID. Here, the maintainability of the reference was raised as a preliminary issue. That question essentially involved many questions of fact as would be evident from the discussion of the issues involved, in this judgment. Therefore the more appropriate procedure the Industrial Tribunal should have adopted in this case was to consider the entire matter in the final award after taking evidence, instead of considering the maintainability of the reference as a preliminary issue and passing a preliminary order.”

4. The Division Bench of this Court inChelamattom Sree Krishna Swami Devaswom Trust v. State of Kerala and Others [ 2022 (4) KHC 215 ] has held that a writ petition challenging the preliminary order of the Labour Court cannot normally be interfered with and the parties are to be relegated to the Labour Court for culmination of proceedings before the Court with liberty to challenge the preliminary order, if required, along with the final award.

This Court and