@JUDGMENTTAG-ORDER
K. Chandru, J.@mdashThe Petitioner in this batch of Writ Petitions is the management of Jet Airways (India) Limited represented by its General Manager (Human Resources). In all these Writ Petitions, the Petitioner management has challenged an order passed by the Union of India, Ministry of Labour dated 19.6.2009 in referring the dispute raised by the contesting second Respondent.
2. The Writ Petitions were admitted on 30.10.2009. Pending the Writ Petitions, this Court granted an interim stay and the said interim stay stands extended until further orders.
3. It is seen from the records that the contesting second Respondent raised an industrial dispute before the Assistant Commissioner of Labour (Central), Chennai. His claim was for absorption in Jet Lite run by the Petitioner management with reference to the Share Purchase Agreement dated 1.4.2007 entered into between the management and Sahara India Commercial Corporation Limited and others. After notice to the parties, as there was no compromise made, the Conciliation Officer sent his failure report dated 7.5.2009 to the Central Government.
4. The Central Government by exercising power u/s 10(1) of the Industrial Disputes Act by order dated 19.6.2009 referred the dispute for adjudication by the Central Government Industrial Tribunal-cum-Labour Court at Chennai. The order of reference dated 19.6.2009 is worded identically and it reads as follows: "Whether the demand of Shri C.P. Suresh for his absorption in Jet Lite by the Management of Jet Airways with reference to the Share Purchase Agreement of dated 1.4.2007 entered by the Management of Jet Airways (India) Limited, Sahara India Commercial Corporation Limited and others and Sahara Airlines Limited is justified and legal? (ii) To what relief is the workman concerned entitled?" Challenging the said order of reference, the Writ Petitions came to be filed.
5. It is also stated by Mr. S. Ravi representing for M/s. Gupta and Ravi, learned Counsel for the Petitioners that some of the workers have compromised the dispute and appropriate memos have been filed before the CGIT and the Petitioners are not pressing those Writ Petitions.
6. In respect of the surviving issues, the contention raised by the learned Counsel for the Petitioners is as follows:
(6.i) The demand for absorption can be made only by an industrial dispute u/s 2(k) of the Industrial Disputes Act. Therefore, the reference is ex-facie invalid. It is also stated that earlier when Sahara India Commercial Corporation had transferred the service of the workmen, the workmen had resigned their services and received the terminal benefits and therefore having resigned the services of the previous employer, the question of the demand of absorption on the present Petitioner on the basis of Share Purchase Agreement is not maintainable. It is also stated that even as per the Pleadings before the Conciliation Officer, the contesting second Respondent had admitted about the transfer and they are not obeying the transfer order. Therefore, the 2nd Respondent cannot claim any relief against the Petitioner management.
(6.ii) It is also stated that even if there is any denial of ownership of the establishment either by law or agreement, only the provisions u/s 25-FF will stand attracted. In such cases, if the purchaser of the establishment takes over the services of the existing employees, there can be no grievance. But, in case the purchaser-cum - new employer do not employ the employees of the previous employer, then those employees can claim only retrenchment and compensation and cannot claim any reinstatement as a matter of right. Therefore, it was contended that the reference on the face of it will have to be quashed, as it is not maintainable in a petition u/s 2-A of the Industrial Disputes Act.
7. On notice from this Court, on behalf of the 1st Respondent, a counter affidavit dated "nil" (March 2010) has been filed. In the counter affidavit, without going into the merits of the dispute, the Central Government asserted that they were satisfied about the existence of industrial dispute and therefore they have decided to refer the dispute based on the formation of opinion on the factual existence of the industrial dispute. The adequacy or sufficiency of materials in formation of the opinion is outside the purview of the judicial review. In this context, they have prayed for dismissal of the Writ Petitions.
8. Therefore, the only question that arises for consideration is whether this Court sitting under Article 226 of the Constitution can strike down the orders of reference even before appropriate trial takes place before the Industrial Tribunal cum Labour Court and the matters were decided by the CGIT.
9. It is not the case of incompetent reference by an incompetent authority. Since the Petitioner is running Airlines, the appropriate Government is the Central Government and the Central Government was guided by Failure Report sent by the Conciliation Officer, who is an Assistant Commissioner of Labour (Central) and therefore it cannot be said that there was no material available with the Central Government before passing the impugned order of reference. The reference is only a starting point of the industrial adjudication and on the basis of the pleadings of the parties, the industrial Tribunal can decide the actual lis between the parties. Under such circumstances, the Industrial Tribunal cannot construe the reference on any technical ground and cannot reach it in pedantic manner. Therefore, considering the nature of dispute between the parties, the Court can frame issues for adjudication of the dispute.
10. The defence taken by the Petitioner in these Writ Petitions cannot be a ground for striking down the order of reference and it requires pleading by the Petitioner employer and also adequate materials to be placed before the Tribunal. Though the Petitioner contended in their affidavit that the industrial Tribunal is bound by the terms of reference, when that does not mean the Tribunal can decide the issue which is not at all an industrial dispute or whether a particular person, who is arraigned before the Tribunal has to be necessarily arraigned for the purpose of adjudication. As noted already, the reference made to the Tribunal u/s 10(1) of the Industrial Disputes Act is only a starting process for adjudication and not an end by itself.
11. This Court and the Supreme Court in very number of occasions held that merely because a reference is made, the Court can go behind the order of reference and in cases where if the particular workman is not a workman or the particular employer is not an employer, the dispute, which is not an industrial dispute, can be gone into by the Tribunal even after the reference.
12. The legal question raised has been squarely gone into by this Court in
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.
13. In the same judgment, in paragraphs 38 and 42, it was observed as follows:
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.
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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.
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.
Hence, no case is made out to interfere with the orders of reference and the Petitioner will have to go before the CGIT and make their objections.
14. In Writ Petition Nos. 22178, 22182, 22185, 22186, 22187, 22188, 22189, 22190, 22191, 22192, 22194, 22196, 22197, 22198, 22199 and 22200 of 2009 (16 cases), Mr. S. Ravi, learned Counsel for the Petitioner submitted that in these Writ Petitions, the contesting Respondents have filed a memo before the Industrial Tribunal not pressing the dispute and the Tribunal has dismissed the reference in their cases. Therefore, the Petitioner is not pressing these Writ Petitions. Hence, those Writ Petitions ( 22178, 22182, 22185, 22186, 22187, 22188, 22189, 22190, 22191, 22192, 22194, 22196, 22197, 22198, 22199 and 22200 of 2009) stand dismissed as not pressed.
15. In the light of the above, there is no case made out. Accordingly, all other Writ Petitions, namely W.P. Nos. 22179, 22180, 22181, 22183, 22184, 22193, 22195, 22201 of 2009 stand dismissed. In W.P. Nos. 22179, 22180, 22181, 22183, 22184, 22193, 22195, 22201 of 2009, since the reference has already been two years old, it is for the authorities to give appropriate pleadings and get along with the case, since u/s 10 of the Act, the industrial dispute has to be decided within a period of three months. Therefore, taking note of the above, the Labour Court shall expedite the hearing of these cases after giving due notice to the parties. No costs. The connected Miscellaneous Petitions are closed.
