BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 25/07/2007 CORAM: THE HONOURABLE MR. JUSTICE K.CHANDRU WRIT PETITION (MD) Nos.6723 of 2006 WRIT PETITION (MD) Nos.6724 to 6726, 7239 to 7268, 8192 to 8206, 8218 to 8230, 8250 to 8263, 8283 to 8296 of 2006 and M.P.(MD) Nos. 1 of 2006 in all the Writ Petitions for stay and M.P.(MD) No.2 of 2006 in W.P.(MD)NO.6723 of 2006 for vacate stay and M.P.(MD)No.2 of 2006 in W.P.(MD)No.7251 of 2006 for vacate stay. W.P.(MD)No.6723 of 2006 The Management of Tractor's and Farms Equipment's Ltd., K.Patti Plant, No.10/205, Kallapatti, Pin - 624 201 rep. by its General Manager, (Madurai Operations). ... Petitioner vs. 1.The Presiding Officer, Labour Court, Trichy. 2.B.Arokiaraja 3.P.Kannuchamy ... Respondents
Writ Petition (MD) No.6723 of 2006 filed under Article 226 of the
Constitution of India to issue a Writ of Mandamus forbearing the first
respondent, Presiding Officer, Labour Court, Trichy from proceedings with the
adjudication of I.D.No.122 of 2006 insofar as the petitioner is concerned.
In all the Writ Petitions:
!For petitioner ... Mr. S.Sanjay Mohan
for M/s.S.Ramasubramaniam &
Associates
^For 2nd respondent ... Mr. D. Hari Paranthaman
For 3rd respondent ... Mr. K.Srinivasan
:COMMON ORDER
In all these 90 Writ Petitions, heard the arguments of Mr. S.Sanjay Mohan,
learned counsel appearing for M/s. Ramasubramaniam and Associates and Mr.
D.Hariparanthaman, learned counsel appearing for the second respondents and
Mr.K.Srinivasan appearing for the third respondent and have perused the records.
2. In all these 90 Writ Petitions, the short question that arises for
consideration is whether the prayer of the writ petitioner/Management seeking
for a restraint order against the Labour Court from proceeding with industrial
disputes raised by the respective second respondents under Section 2-A(2) of the
Industrial Disputes Act 1947 (for short I.D.Act) can be granted by this Court?
3. Since the issue raised in all these Writ Petitions are common, the
petitioner is hereinafter referred to as the Management and the second
respondents are collectively referred to as the Workmen and the third
respondent as the contractor.
4. The workmen were employed by the management and they were members of
“TAFE Employees Union”, which is a registered Trade Union. These workmen were
working under various capacities and they were claiming that they had put in six
years of service. The Trade Union to which they belong to, raised an industrial
dispute under Section 2(k) of the I.D.Act seeking for permanency of their
service on account of their having completed 480 days of service within a period
of 24 calendar months in terms of the Tamil Nadu Industrial Establishments
(Conferment of Permanent Status to Workmen) Act 1981. It is also their case
that Provident Fund subscriptions were deducted by the management. Complaints
were made to the Labour Department when the Trade Union took up their cause of
regularisation. It was stated by them that the management brought in a
contractor to make it appear that they were all the workmen of the contractor,
thereby denying their right of regularisation and permanency. It is their
positive case that on 16.2.2005, a printed letter was sought to be obtained from
them in order to make it appear that they have voluntarily gave statements that
they were working under the contractor and that they have been instigated by
their Trade Union and they were always willing to work under the contractor.
When the workmen refused to sign under the dated line, it resulted in denial of
employment.
5. Therefore, the matter was pursued before the Assistant Commissioner of
Labour (Conciliation), Dindigul. The conciliation ended in failure and its
report dated 20.5.2005 was submitted to the Government. The said report
contained several demands of the workmen. On the receipt of the said report,
the Government of Tamilnadu by G.O. D.No.813 Labour and Employment dated
24.11.2006 refused to refer the dispute. With reference to the demand No.I,
viz., that the workmen to be made permanent having worked for six years and also
P.F. being deducted from the salary. The Government stated that originally,
the dispute was raised on behalf of 160 workers and thereafter, 127 workers were
removed from service and out of 127, 35 workers have signed settlement under
Section 18(1) with the contractor and in respect of 92 workers, the Assistant
Commissioner of Labour has given a failure report under Section 2-A(2) of the
I.D.Act. Therefore, since the workmen’s non-employment was the subject matter
of an individual dispute, the dispute regarding their permanency can be raised
after the disposal of the industrial dispute. In respect of the 8 demands for
which dispute was raised, the same reason was given by the Government.
6. Aggrieved by the said order, the trade union to which the workmen
belonged has filed a Writ Petition being W.P.(MD)No.6111 of 2007 and the matter
has been admitted and notice has been ordered to the Government and the
Management and the matter is sub-judice.
7. In the mean while, even before the declining of that reference, the
workmen have individually raised a dispute for which failure report has been
given by the Conciliation Officer and on the strength of the same, the workmen
have filed individual claim statements before the first respondent/Labour Court
under Section 2-A(2). The disputes have been taken on file by the Labour Court
and different I.D. Numbers have been assigned to all those 90 cases and notices
have been ordered to the management and the contractor. The management instead
of filing a counter statement in respect of the disputes individually raised by
the workmen have chosen to file the present Writ Petition with a prayer that
this Court under Article 226 of the Constitution should issue a Writ of a nature
of Mandamus forbearing the first respondent/Labour Court from proceeding with
the adjudication of the disputes raised by the workmen.
8. When questioned as to how such a Writ in the nature of Mandamus will
lie against a constituted Labour Court and that too, against a proceedings
initiated by a workman under Section 2-A(2) of the I.D.Act. Learned counsel for
the management submitted that this Court can mould the relief and actually the
prayer is one of Writ of Prohibition against the Labour Courts from proceeding
with the disputes. An attempt to clutch on to any jurisdiction can be thwarted
by a Writ of Prohibition.
9. Thereafter, the learned counsel for the management submitted that the
petitioner management is not the employer in respect of the workmen concerned in
the disputes and the real employer is the third respondent contractor and
therefore, the workmen cannot make any claim in respect of the management. He
also submitted that once a dispute under Section 2-A(2) is raised, the workmen
must choose a particular employer for making a grievance. But based on the plea
that the term of the appointment that they had with the contractor is sham and
nominal and therefore, the relief should be given against the principal employer
cannot be a subject matter of adjudication under Section 2-A(2) and the Labour
Court will have no jurisdiction in such a matter because such a dispute will
fall under Section 2(k) and not under 2-A(2) of the I.D.Act.
10. The learned counsel brought to the notice of this Court, the judgment
of the Supreme Court reported in 2007 (4) L.L.N. 99 (Bharat Heavy Electricals
Ltd., Vs. Anil and others). After referring to para 13 and in light of the said
observation, he submitted that the Writ is maintainable and this Court should
restrain the Labour Court from proceeding with the dispute. It is therefore
necessary to quote the said passage:-
Para 13: “… There is a difference between an individual dispute which is
deemed to be an industrial dispute under S.2A of the said 1947 Act on one hand
and an industrial dispute espoused by the union in terms of S.2(1) of the said
1947 Act. An individual dispute which is deemed to be an industrial dispute
under S.2-A concerns discharge, dismissal, retrenchment or termination whereas
an industrial dispute under S.2(1) covers a wider field. It includes even the
question of status. This aspect is very relevant for the purposes of deciding
this case. In the case of Radhey Shyam and another v. State of Haryana and
another [1999 (2) L.L.N 497], it has been held after considering various
judgments of the Supreme Court that Section 2A contemplates nothing more than to
declare an individual dispute to be an industrial dispute. It does not amend
the definition of industrial dispute set out in S.2(k) of the Industrial
Disputes Act, 1947 (which is similar to S.2(1) of the said 1947 Act). Section
2A does not cover every type of dispute between an individual workman and his
employer. Section 2A enables the individual worker to raise an industrial
dispute, notwithstanding, that no other workmen or union is a party to the
dispute. Section 2A applies only to disputes relating to discharge, dismissal,
retrenchment or termination of service of an individual workman. It does not
cover other kinds of disputes such as bonus, wages, leave facilities etc.,.”
11. Thereafter, the learned counsel referred to the observation made in
para 15 in the same judgement. As a dispute by the Union had already been
raised for which reference has been refused by the Government, will operate
against the workmen as an estoppel.
12. When it was pointed out that the said order of reference is under
challenge and it had not become final, yet the learned counsel submitted that
notwithstanding the fact that the trade Union has raised a dispute by stating
that the contract was not genuine and it is sham and nominal. The workmen are
bound by the action of their Trade Union and they have no separate right to
raise any individual dispute. In such a situation, an individual worker has no
say in such matter and the judgment in Bharat Heavy Electricals Ltd.,’s case
(cited supra) will apply in all four corners.
13. The learned counsel further relied on the judgment of the Supreme
Court reported in (2005) 12 SCC 738 (ANZ Grindlays Bank Ltd (now known as
Standard Chartered Grindlays Bank Ltd., v. Union of India (UOI) and Ors.) and
referred to para 13 which is as follows:
Para 13: ” Mr Bhat, learned Counsel for the second respondent, has submitted
that this Court should not interfere with the order of the Central Government
making a reference under Section 10 of the Act, as the appellant can ventilate
its grievances before the Industrial Tribunal itself and if the decision of the
Tribunal goes against the appellant, the same may be challenged in accordance
with law. According to learned counsel the writ petition is premature as the
appellant has got a remedy before the Tribunal to show that the reference is
either bad in law or is uncalled for. We are unable to accept the submission
made. It is true that normally a writ petition under Article 226 of the
Constitution should not be entertained against an order of the appropriate
Government making a reference under Section 10 of the Act, as the parties would
get opportunity to lead evidence before the Labour Court or Industrial Tribunal
and to show that the claim made is either unfounded or there was no occasion for
making a reference. However, this is not a case where the infirmity in the
reference can be shown only after evidence has been adduced. In the present case
the futility of the reference made by the Central Government can be demonstrated
from a bare reading of the terms of the reference and the admitted facts. In
such circumstances, the validity of the reference made by the Central Government
can be examined in proceedings under Article 226 of the Constitution as no
evidence is required to be considered for examining the issue raised.”
(Emphasis added)
14. Therefore, the learned counsel submits that this Court can go into the
claim made by the workmen and decide whether the relief sought for by the
workmen can be granted by the Labour Court and in the absence of its
jurisdiction, the Court must restrain the Labour Court from proceeding with the
reference.
15. Finally, the learned counsel relied upon the judgment of the Supreme
Court in Steel Authority of India Ltd., and others v. National Union Water Front
Workers and others [(2001) 7 Supreme Court Cases 1] and drew the attention of
this Court to para 120, which is as follows:
Para 120: “We have also perused all the Rules and forms prescribed thereunder.
It is clear that at various stages there is involvement of the principal
employer. On an exhaustive consideration of the provisions of the CLRA Act we
have held above that neither they contemplate creation of direct relationship of
master and servant between the principal employer and the contract labour nor
can such relationship be implied from the provisions of the Act on issuing
notification under Section 10(1) of the CLRA Act, a fortiori much less can such
a relationship be found to exist from the Rules and the forms made thereunder.”
16. On the strength of the above, the defence is that on a analysis of
the Contract Labour Regulation Abolition Act did not contemplate creation of
direct relationship of master and servant between the principal employer and the
contract labour and no such relationship can be implied from the provisions of
the Act.
17. Therefore, the learned counsel submitted that either workmen raise a
dispute under Section 2(k) contending that the contract is sham and nominal or
that they should seek for abolition of contract labour in terms of the
provisions of the Contract Labour Act.
18. Per contra, the learned counsel Mr.D. Hari Paranthaman contended that
this Court under Article 226 of the Constitution shall not interfere with the
dispute raised under Section 2-A(2) of the I.D.Act before the 1st
respondent/Labour Court and the workmen have got an excellent case before the
Labour Court on evidence. The learned counsel also submitted that in industrial
proceedings, a Writ Petition even before the issue could be adjudicated by an
appropriate Labour Court is not warranted by invoking the extra-ordinary
jurisdiction vested on this Court. Further, he also submitted that they are
seeking for any abolition of contract labour or that they are seeking for any
regularisation but it is a positive case of termination by the management and
they have nothing to do with the third respondent contractor. All along their
case was that they had worked for six years in their respective posts and
Provident Fund contributions have also been recovered and it is only when the
Trade Union sought for permanency, the contractor was sought to be inducted into
as it has been resisted by the workmen, it finally resulted in their non-
employment.
19. He also relied upon the judgment of this Court in (2006) 4 MLJ 1138
(Management of Blue Dart Aviation Ltd., v. Government of India) (rendered by me)
where this Court has held that the burden of proof as to real employer lies on
the workmen. Therefore, the management is not put to any prejudice in the
dispute being continued and by the self-imposed restriction, this Court should
not thwart a proper adjudication of an industrial dispute. He also submitted
that the Government’s order declining to refer was illegal and the Trade Union
had already challenged the said denial in a separate Writ petition and denial of
reference cannot estop the individual workman from raising a dispute.
20. In any event, the said refusal to refer the dispute cannot operate as
a res judicata in an individual dispute being agitated. The learned counsel
sought to place reliance upon a judgment of a Division Bench of this Court
presided over by K.G.BALAKRISHNAN, C.J., (as he then was) in W.A.(MD) No.189 of
2000 dated 10.2.2000 in Thanthai Periyar Transport Corporation Ltd., rep. by its
Managing Director, Villupuram vs. 1. M.Lakshmanan and 2. The Presiding officer,
Industrial Tribunal, Madras – 600 104, wherein this Court held that declining to
refer the dispute under Section 10 cannot be a bar for the workmen to pursue a
complaint under Section 33-A of the I.D.Act. Therefore, he pleaded for
dismissal of the Writ Petitions.
21. Mr.K.Srinivasan, learned counsel for the contractor orally submitted
that some of the workers have entered into compromise and no relief need be
given to them. However, no memo showing the existence of any compromise had
been filed before this Court. In any event, if that is the arrangement between
some of the second respondent/workman and the third respondent and if their
demands are satisfied, the same can be produced before the Labour Court. This
Court is not going into that issues at the present juncture.
22. Before proceeding to deal with the rival contentions, it is necessary
to trace the history of Section 2-A of the I.D.Act. Section 2-A of the I.D.Act
was introduced by the Parliament by the amendment made by Act 35 of 1965.
Section 2-A reads as follows:
“2-A. Dismissal, etc., of an individual workman to be deemed to be an
industrial dispute – Where any employer discharges, dismisses, retrenches or
otherwise terminates the services of an individual workman, any dispute or
difference between that workman and his employer connected with, or arising out
of, such discharge, dismissal, retrenchment or termination shall be deemed to be
an industrial dispute notwithstanding that no other workman nor any union of
workmen is a party to the dispute.”
23. Before the introduction of Section 2-A, an individual worker has to
rely upon the support of the Trade union and other fellow workers to have his
non-employment adjudicated by the Court. After the introduction, an individual
dispute can be raised by a worker without other workers supporting his case or
not. Therefore, an exception has been carved out from the definition of
industrial dispute given under Section 2(k) of the I.D.Act. Even after the
introduction of Section 2-A still one were made to go through the process of
conciliation. Reference has to be made for adjudication by the appropriate
Government under Section 10(1) of the I.D.Act.
24. As it imposed a cumbersome procedure, the Tamil Nadu State Legislature
has amended Section 2-A and added sub- section (2), by the T.N.Act 5 of 1988
with effect from 1.11.1988. The Section 2-A(2), which is applicable to the
State of Tamil Nadu, reads as follows:
“(2) Where no settlement is arrived at in the course of any conciliation
proceeding taken under this Act in regard to an industrial dispute referred to
in sub-section (1), the aggrieved individual workman may apply, in the
prescribed manner, to the Labour Court for adjudication of such dispute and the
Labour Court shall proceed to adjudicate such dispute, as if, such dispute has
been referred to it for adjudication and accordingly all the provisions of this
Act relating to a adjudication of industrial disputes by the Labour Court shall
apply to such adjudication.” (Emphasis added)
25. Therefore, an industrial dispute with reference to the individual non-
employment has undergone radical departure from the traditional concept of
industrial dispute. Now in any case of non-employment can be raised without
the support of the Union and without there being any reference by the
appropriate Government. A worker can move the Labour Court/Tribunal as a matter
of right. More or less the Labour Courts have now been vested with an original
jurisdiction without any technicalities attached to the same. This power of
Labour Court to deal with an individual dispute arose from the fulfilment of an
obligation imposed by the international convenants and pursuant to the
resolution made by the International Labour Organisation (ILO) vide its
resolution No.119 (1963) by which member countries have agreed to create a
mechanism by which in case of dismissal, discharge or termination of workmen
must have an approval by a third party neutral arbitrator.
26. In the light of the development of law, today, an industrial worker
in case of non-employment can move the Labour Court without there being any
obstacle in law. Once such a petition is filed and the Labour Court issues
notice, it is incumbent upon the management to enter appearance and put-forth
their stand in defence. Even if it goes to the root of the matter, it is
necessarily for the industrial adjudicator such as the Labour Court to deal with
it and the Labour Court will have to pass an Award in terms of the contentions
of parties.
27. The Preamble to the Industrial Disputes Act makes it clear that it has
only two methods of resolving a dispute – one by conciliation and the other by
adjudication. Therefore, when the conciliation having failed, the only other
method by which an industrial dispute can be resolved is by adjudication and the
present attempt by the management even to thwart such a process of adjudication
can never be entertained by the Courts.
28. In the present case, the arguments on behalf of the
petitioner/management that they are not the employer, is not an issue purely
based upon law. Even if it is a jurisdictional issue, the said issue cannot be
decided based upon affidavits only. When the necessary statements are before
the Labour Court, only when it records a finding the fact upon which a legal
premises can be built. Without such a foundation, the High Court under Article
226 of the Constitution cannot interdict the proceedings which are otherwise
validly instituted.
29. The submission that the petitioner/management is not the employer and
that the third respondent contractor is the employer cannot be decided on the
basis of affidavit jurisdiction. On the other hand, it is a positive case of
the workmen that it is the petitioner/management who is their employer. Even
before the Conciliation Officer, the third respondent who filed a counter
statement had only contended that they have been unjustly impleaded and they
should be let off from the proceedings.
30. In the absence of the management filing a counter statement in respect
of the pending dispute, the Court is unable to take up the Writ Petition and
decide the question of law and facts. Even though the learned counsel for the
management relied upon the judgment of Bharat Heavy Electricals Ltd’s case
(cited supra), it must be stated that in the present case, the workmen are not
claiming that the contract being sham and nominal but their positive case is it
is the management who is their employer and their non-employment should be
resolved.
31. It must be pointed out that the Supreme Court in Gujarat Electricity
Board v. Hind Mazdoor Sabha and others [(1995) 5 Supreme Court cases 27] has
held in para 53 (ii), which reads as follows:
“53 (ii) If the contract is a sham or not genuine, the workmen of the so-
called contractor can raise an industrial dispute for declaring that they were
always the employees of the principal employer and for claiming the appropriate
service conditions. When such dispute is raised, it is not a dispute for
abolition of the labour contract and hence the provisions of Section 10 of the
Act will not bar either the raising or the adjudication of the dispute. When
such dispute is raised,t he industrial adjudicator has to decide whether the
contract is a sham or genuine. It is only if the adjudicator comes to the
conclusion that the contract is a sham, that he will have jurisdiction to
adjudicate the dispute.”
32. In Steel Authority of India Ltd.’case cited supra, the Supreme Court
gave a direction in paragraph No.125 (5), which reads as follows:
Para 125: “(5) On issuance of prohibition notification under Section 10(1) of
the CLRA Act prohibiting employment of contract labour or otherwise, in an
industrial dispute brought before it by any contract labour in regard to
conditions of service, the industrial adjudicator will have to consider the
question whether the contractor has been interposed either on the ground of
having undertaken to produce any given result for the establishment or for
supply of contract labour for work of the establishment under a genuine contract
or is a mere ruse/camouflage to evade compliance with various beneficial
legislations so as to deprive the workers of the benefit thereunder. If the
contract is found to be not genuine but a mere camouflage, the so-called
contract labour will have to be treated as employees of the principal employer
who shall be directed to regularise the services of the contract labour in the
establishment concerned subject to the conditions as may be specified by it for
that purpose in the light of para 6 hereunder.”
33. Therefore, placing reliance upon the Bharat Heavy Electricals Ltd.,’
case is inappropriate. In the present case, it is not as if the workmen are
clamouring for any new status but it is a positive case of non-employment.
Further, reliance upon the ANZ Grindlays Bank Ltd.,’s case (cited supra), it
must be seen that the very passage quoted above that in a case of reference
under Section 10(1), the Court as the materials are before the Government can
find out whether such a decision of the Government was based on objective
materials placed before the Government before making a reference.
34. The present case is not one of reference under Section 10(1) of the
I.D.Act and it is a case where the workmen had direct access to go to the Labour
Court as matter of right.
35. The other argument that the reference has been declined by the
Government and it will be an estoppel, it must be stated that it is also under
challenge by the Trade Union in a separate Writ proceedings.
36. In any event, the principle laid down in Thanthai Periyar Transport
Corporation Ltd.,’s case (cited supra), rendered on behalf of the Division Bench
by K.G.BALAKRISHNAN, C.J., (as he then was) in W.A.(MD) No.189 of 2000 dated
10.2.2000 is more appropriate. In para 8, the then Chief Justice had observed
as follows:
Para 8: “Making complaint for contravention of the provisions under Section
33(2)(b) of the said act by the appellant is a statutory right to an employee,
and, merely because the Government refused to refer the matter to the Tribunal
exercising powers under Section 10 of the said Act, exercising such a right by
the employee under Section 33A of the said Act cannot be denied.”
37. With regard to the contention that even assuming that the management
has made a wrong prayer and that this Court can mould the relief, as this Court
has taken a view that due to self-imposed restriction made on this Court, the
Court should not interdict any process of adjudication even before it can reach
its finality. In fact, the Supreme Court had in more than one occasion has held
that the Court should not entertain petitions at the threshold and decide
preliminary issues.
38. The Supreme Court in D.P.Maheswari v. Delhi Administration AIR 1984 SC
153, it has been held as follows(at pp.426 and 427 of LLJ)
“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, 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, some times for over a decade.
…………………
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. 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 a High Court under Article 226
of the Constitution nor the jurisdiction of this Court under Article 136 may be
allowed to exploited by those who can well 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 the workmen in this fashion. Tribunals and Courts
who are requested to decide preliminary questions must therefore ask themselves
whether such threshold part-adjudication 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 journeyings up and down. It is also worthwhile
remembering that the nature of the jurisdiction under Article 226 is supervisory
and not appellant 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.”
39. At the moment, there are no rival pleadings before this Court and only
the claim statement made by the Workmen is placed on record in the form of typed
set of papers. This Court cannot on the basis of averments made by the
management in the affidavit construe them as its defence before the Labour
Court. It can only be adjudicated by the appropriate forum. If there any wrong
assertions made in the counter statements it may be brought out during the
process of adjudication. Because under Section 11(3), the Labour Court has
power of a Civil Court when trying a civil suit. Section 11(3) of the I.D.Act
reads as follows:
“11. Procedure and power of conciliation officers, Boards, Courts and Tribunals
– (1) ….. Omitted ….
(2) ….. Omitted ….
(3) Every Board, Court Labour Court, Tribunal and National Tribunal shall have
the same powers as are vested in a Civil Court under the Code of Civil
Procedure, 1908 (5 of 1908), when trying a suit, in respect of the following
matters, namely:-
(a) enforcing the attendance of any person and examining him on oath;
(b) compelling the production of documents and material objects;
(c) issuing commissions for the examination of witnesses…”
40. Therefore, if any attempt is made to stall a properly laid claim
before the Labour Court, it will not only result in unjust encroachment at the
powers of the Labour Court which after the T.S. State Amendment of 1998 has
given plenary powers to Labour Courts in dealing with the dispute of non-
employment.
41. The prayer for issuance of a Writ either in the nature of Mandamus or
Prohibition will not apply to an original
jurisdiction. Unless a strong case is made out, the Court need not take up the
task of entertaining Writ Petitions on the basis of affidavit jurisdiction. In
fact,the Labour Courts are best suited to deal with them as the Labour Courts
not only can receive documents in evidence but also can let in oral evidence and
appreciate the factual matrix of the case involved. No prejudice will be caused
to the mighty-management in facing the trial. Unnecessarily, the adjudication
has been stalled for more than one year. Had the dispute been allowed to go for
a logical end, the dispute itself would have been over by now. If the
management has an excellent case, then it is for them to plead such of those
defences which are available to them both under law and on facts and bring the
disputes to their finality.
42. Even in the Bharat Electricals Ltd.,’s case (cited supra), the
Supreme Court decided the legal issues upon the validity of adjudication by a
Labour Court and it is not an authority to forestall a dispute even before its
conclusions.
43. Under the circumstances, the Writ Petitions will stand dismissed.
Consequently, interim stay already granted will stand vacated and the connected
Miscellaneous petitions
are closed. However, the parties will have to bear their respective costs.
44. As the matter is already one year old and considering that the issue
in all 90 matters are identical, the Labour Court is directed to dispose of the
matter after notice to both the parties within a period of six months from the
date of receipt of copy of this order on merits including the preliminary
objection raised by the management.
asvm
To
The Presiding Officer,
Labour Court,
Trichy.