Joymalya Bagchi, J.@mdashThe 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?"
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.
2. 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.
3. 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.
4. In terms of the aforesaid memorandum of settlement, the said employees were reinstated.
5. 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.
6. As the conciliation proceeding failed, the impugned reference was made in the instant case.
7. Mr. Jayapal appearing for 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.
8. I have considered the submissions of the learned Counsel for the petitioner and perused the materials on records.
9. 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 results in quick and efficacious resolution of industrial disputes.
10. Festering of industrial disputes through protracted litigation is neither the object of industrial law nor is conducive to industrial health.
11. Lamenting the insidious techniques adopted by employers in protracting and as trial adjudication under the ruse of preliminary issues, Chinappa Reddy, J. in
"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 Art. 226 of the Constitution and to this Court under Art. 136 of the Constitution and delay a decision of the real dispute for years, sometimes for over a decade. Industrial peace, one presumes, hangs in the balance in the meanwhile. We have now before us a case where a dispute originating in 1969 and referred for adjudication by the Government to the Labour Court in 1970 is still at the stage of decision on a preliminary objection. 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 Art. 226 of the Constitution stop proceedings before a Tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the High Court under Art. 226 of the Constitution nor the jurisdiction of this Court under Art 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from Court to Court for adjudication of peripheral issues, avoiding decision on issues more vital to them. Art. 226 and Art. 136 are not meant to be used to break the resistance of 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 journeyings up and down. It is also worth while remembering that the nature of the jurisdiction under Art. 226 is supervisory and not appellate while that under Art. 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.
12. Similar concern was again resonated by the Apex Court in
"11. Usually, whenever a reference comes up before the Industrial Tribunal, the Establishment, in order to delay the proceedings, raises the dispute whether it is an "industry" as defined in Section 2(j); or whether the dispute referred to it for adjudication is an "industrial dispute" within the scope of Section 2(k) and also whether the employees are "workmen" within the meaning of Section 2(s). A request is made with that these questions may be determined as preliminary issues so that if the decision on these questions are in the affirmative, the Tribunal may proceed to deal with the real dispute on merits.
12. We, however, cannot shut our eyes to the appalling situation created by such preliminary issues which take long years to settle as the decision of the Tribunal on the preliminary issue is immediately challenged in one or the other forum including the High Court and proceedings in the reference are stayed which continue to lie dormant till the matter relating to the preliminary issue is finally disposed of.
13. I am unable to agree with the contention of Mr. Jayapal that the issues raised herein are beyond the adjudicatory pale of the Labour Court. It is settled law that the Tribunal can decide on jurisdictional facts in order to determine its own jurisdiction. 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 I am loath to decide the same at this preliminary stage in exercise of extraordinary writ jurisdiction. It caught 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.
14. I am unable to accept the contention of Mr. Jayapal that the petitioner school is not an industry under the Act of 1947. There are precedents galore that an educational institutional is an industry for the purposes of the Act of 1947 although teachers of such institution may not be workmen. (See
15. Finally with regard to validity of the settlement that I find that the same was the subject matter of challenge in earlier writ proceedings being WP No. 173 of 2014 and WP No. 174 of 2014.
16. The aforesaid writ petitions were dismissed by orders dated 03.07.2014 whereby this Court refused to interfere with the conciliation proceeding. Copy of one of the said orders has been produced before me and the same is kept with the record.
17. I am therefore of the opinion that there is no jurisdictional error in the conciliation proceeding which culminated in the aforesaid settlement inasmuch as the conciliation officer had been duly appointed by order dated 19.08.2011 under Section 4 of the Act of 1947 as held by this Court in the earlier writ proceeding.
18. However, it would be open to the petitioner to assail the aforesaid settlement on any other legally permissible ground in the course of adjudication, if so advised.
19. For the aforesaid reasons, I am not inclined in interfering with the impugned notification under Section 10 of the Act of 1947 referring the dispute for adjudication before the Labour Court. The petitioner is at liberty to raise all issues which are available under law before the Labour Court in the course of such adjudication.
20. I request the Labour Court to take all necessary steps to conclude the adjudication as early as possible and in accordance with law. With the aforesaid observations, the writ petition is dismissed.
