The Management of Theosophical Society Adyar Chennai-600 020 v. The Workmen of Theosophical Society Adyar, Chennai & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 29.01.2008CORAM:THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIANandTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMARWrit Appeal No.3912 of 2003The Management of Theosophical SocietyAdyarChennai-600 020. Appellant vs.1. The Workmen of Theosophical Society Adyar, Chennai rep. by the Theosophical Society Workers' Union through its Secretary.2. The Presiding Officer II Additional Labour Court Chennai.RespondentsPRAYER: Writ Appeal under Clause 15 of the Letters Patent against theorder of the learned single Judge of this Court dated 26.8.2003 inW.P.No.23221 of 2002 petition presented under Article 226 of theConstitution of India to issue a Writ of Certiorari to call for therecords relating to the order of the second respondent dated 23.04.2002made in IA.No.209 of 2000 in ID.No.333 of 1991 and quash the same.For appellant:Mr.Sanjay MohanFor 1st respondent :Mr.S.ArunachalamJUDGMENT(Judgment of the Court was delivered by K.RAVIRAJA PANDIAN,J.)The writ appeal is filed against the order of the learned singleJudge dated 26.08.2003 made in W.P.No.23221 of 2002, whereby, thelearned single Judge non-suited the appellant, who sought for the reliefof setting aside the order of the Labour Court dated 23.04.2002 made inI.A.No.209 of 2000 in I.D.No.333 of 1999, whereby the labour Courtrefused to decide the issue whether the appellant is an 'industry' as https://hcservices.ecourts.gov.in/hcservices/ defined in section 2(j) of the Industrial Disputes Act, as preliminaryissue. 2. Learned single Judge also, while rejecting the writ petition,has observed that at best, the issue as regards the question whether thepetitioner/appellant would fall within the definition of "industry" asdefined under Section 2(j) of the Industrial Disputes Act, could beformulated as the first issue along with other issues, and the LabourCourt, while considering all other issues, could decide the issue as tothe character of the appellant first and, if the Labour Court comes tothe conclusion that the appellant is an "industry" as defined under theIndustrial Disputes Act, could proceed further in respect of the otherissues. That order is assailed in this appeal.3. Mr.Sanjay Mohan, learned counsel appearing for the appellant,submitted that although there are series of judgments of the SupremeCourt that the Labour Court shall decide all the issues in dispute atthe same time without trying some of them as preliminary issues, thelatest trend of the Supreme Court is in reversal of the earlier, whichis evident from the judgment of the Supreme Court in Hussain MithuMhasvadkar v. Bombay Iron & Steel Labour Board, (2001) 7 SCC 394. Thusthe issue whether the appellant is an 'industry' under section 2(j) ofthe Industrial Disputes Act has to be decided as preliminary issuewithout gathering evidence in respect of other issues. On that premisehe argued for quashing the order of the learned single Judge. In orderto support his submission, he submitted that the appellant was twiceconsidered by this Court as not an 'industry' as defined under section 2(j) of the Act, but a later Bench considered otherwise. So, theconsideration of the character of the appellant assumes significance. 4. Learned counsel for the respondent argued for sustaining theorder of the learned single Judge.5. We heard the learned counsel on either side and perused thematerials available on record.6. Even in the contention made on behalf of the appellant, it hasbeen accepted that the view of the Supreme Court in the long line ofjudgments is that the Tribunal or Labour Court, entrusted with the taskof adjudicating the labour disputes where delay may lead to misery andjeopardise industrial peace, should decide all issues in dispute at thesame time without trying some of them as preliminary issues. Nor theHigh Courts, in exercise of their jurisdiction under Article 226 of theConstitution of India should stall the proceedings before a Tribunal sothat the preliminary issue may be decided. The jurisdiction underArticle 226 of the Constitution of India shall not be allowed to beexploited by those who could well afford to wait by dragging the latterfrom Court to Court for adjudication of peripheral issues, avoidingdecision on issues more vital to them. https://hcservices.ecourts.gov.in/hcservices/

7. Reliance was placed on the observations of the Supreme Court inthe case of HUSSAN MITHU MHASVADKAR Vs. BOMBAY IRON & STEEL LABOURBOARD, (2001) 7 SCC 394, to contend that the character of the appellantshould be decided as a preliminary issue. Though the paragraph on whichreliance has been placed by Mr.Sanjay Moham, on the first reading,appears to be supporting the contention of the appellant, on the entirereading of the judgment, we are of the considered view that the saidcase has not laid down any ratio, as contended by Mr.Sanjay Mohan. Thatwas a case in which the appellant was working as an Inspector in BombayIron and Steel Labour Board from 13.03.1979 having been appointed assuch on 10.03.1979. The appellant was placed on probation for a periodof three months and after putting in service of 21 months, an order oftermination came to be made on 17.12.1980. According to the appellant,he was doing the work of supervision, detection of defaulters, otherwork of clerical nature, maintenance of registers, files, preparation ofreports, etc. On a dispute being raised, a reference was made undersection 10(1) and section 12(5) of the Industrial Disputes Act to the ILabour Court, Bombay, for adjudication. By an award dated 18.07.1986,the reference was rejected as not maintainable, on the findings recordedthat the Board is not an 'industry' and since the appellant was notemployed in an industry, he could not fall within the definition of'workman'. The writ petition filed by the workman before the learnedsingle Judge and appeal before the Division Bench ended unsuccessfully. 8. On this factual matter peculiar to the facts of that case, theSupreme Court has observed that in the case of this nature where alabour Court as well as the High Court entertained doubt about thestatus of the appellant as a workman, within the meaning of section 2(s)of the Industrial Disputes Act, instead of embarking upon anadjudication in the first instance as to whether the respondent Boardwas an industry or not so as to attract the provisions of the IndustrialDisputes Act, should have taken up the question about the status of theappellant for adjudication at the threshold and if only the findingrecorded was against the appellant, refrain from adjudicating on thelarger issue affecting the various kinds of other employees, as to thecharacter of the Board, as an industry or not. The larger issue shouldhave been entertained for consideration only in cases where it isabsolutely necessary and not when the claim before it could have beendisposed of otherwise without going into the nature and character of theundertaking itself. 9. In the case on hand all the issues are at large. Neither theauthority under the Act nor the High Court doubted the character of theappellant. It is still in the preliminary stage. This variance of thefact makes an ocean of difference between the case on hand and the caserelied upon by the appellant. https://hcservices.ecourts.gov.in/hcservices/

10. All the issues before the Court are decided based on the meritsand demerits of the case. When the beneficial legislation has beenexploited against the intendment and purpose for which it was enactedand in those circumstances of the case, if the Court takes a differentview that cannot be regarded as one taking a reversal trend by theCourts, as contended by Mr.Sanjay Mohan, learned counsel for theappellant. 11. Be that as it may, now, in view of the catena of the decisionsof the Supreme Court in which it has been held that all the issues haveto be decided at the same time and further the learned single Judge hasstated that while deciding all the issues, the issue as to the characterof the appellant has to be decided at first and depending upon theoutcome, the other issues have to be decided is in a way favourable tothe appellant, which requires no interference.12. For the foregoing reasons, the appeal is dismissed. The LabourCourt is directed to take note of the judgment referred to above byMr.Sanjay Mohan before us in the case of Hussain Mithu Shasvadkar andproceed further in accordance with law. However, there will be no orderas to costs. Connected W.A.M.P.Nos.6393 and 6394 of 2003 areconsequently dismissed.Sd/Asst.Registrar/true copy/Sub Asst.Registrarksv/mf/uskTo:The Presiding OfficerII Additional Labour CourtChennai.1 cc To M/s.S.Ramasubramaniam & Associates, Advocate, SR.4020.1 cc To Mr.S.Arunachalam, Advocate, SR.3939.W.A.No.3912 of 2003 VC(CO)RVL 11.02.2008