A.R. Sankaran v. Labour Court, Ernakulam & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN ``` ``` MONDAY, THE 21[ST] DAY OF AUGUST 2023 / 30TH SRAVANA, 1945 ``` ``` WP(C) NO. 13136 OF 2013 ``` ``` AGAINST THE ORDER IN ID NO.1/2011 OF THE LABOUR COURT, ``` ## **`ERNAKULAM`** ## **`PETITIONER:`** ``` A.R.SANKARAN, ANDAPILLY HOUSE KONOOR, NALUKETTU P.O., KORATTY, THRISSUR 680 308. ``` ``` BY ADVS. SRI.P.RAMAKRISHNAN SRI.C.ANIL KUMAR SMT.ASHA K.SHENOY SRI.T.C.KRISHNA SMT.PREETHI RAMAKRISHNAN SRI.PRATAP ABRAHAM VARGHESE ``` ## **`RESPONDENTS:`** - **`1 THE LABOUR COURT, ERNAKULAM`** ``` 2CARBORANDUM UNIVERSAL LIMITED KORATTY - 680 308 REPRESENTED BY ITS GENERAL MANAGER ``` ``` 3PROPRIETOR MR.BOND, OPP.PRIMARY HEALTH CENTRE, HIGH SCHOOL JUNCTION, KANJIKODE P.O., PALAKKAD 678 621. ``` ``` BY ADVS. SRI.P.BENNY THOMAS SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) No.13136 OF 2013 2 ## **`JUDGMENT`** ``` The petitioner, while working as a security guard in the 2[nd] respondent Company, was dismissed from service. The petitioner raised an industrial dispute before the 1[st] respondent under Section 2A(2) of the Industrial Disputes Act, 1947. ``` ``` 2. Before the Labour Court the petitioner challenged the validity of the enquiry and the same was considered as a preliminary issue. The Labour Court by Ext. P13 order in I.D.No.1 of 2011 found that the enquiry conducted by the enquiry officer was in compliance with the principles of natural justice and the findings of the Enquiry Officer were not perverse and were supported by evidence. ``` ``` 3. Ext.P13 order is challenged in this writ petition. It is contended that the Labour Court ``` WP(C) No.13136 OF 2013 3 ``` ought to have set aside the enquiry finding that the enquiry is vitiated by violation of natural justice. This Court, on 27.05.2013, while admitting the writ petition, had granted stay of further proceedings before the Labour Court, Ernakulam. ``` ## **`4. Heard the learned counsel on both sides.`** ``` 5.The Hon'ble Supreme Court inCooper Engineering Ltd v. P. P. Mundhe [AIR 1975 SC 1900: 1975 (2) SCC 661]cautioned against stalling the proceedings before the Labour Court on a finding recorded on a preliminary issue. The Court observed thus:- ``` ``` “...We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated ``` WP(C) No.13136 OF 2013 4 ``` even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication.” ``` ``` 6.In S.K. Verma v. Mahesh Chandra [1983 (4) SCC 214 : AIR 1984 SC 1462]and in D.P. Maheshwari v. Delhi Administration [1983 (4) SCC 293: AIR 1984 SC 153], the Apex Court observed that all issues whether preliminary or otherwise should be decided together and even if a decision is rendered on preliminary issue, the Courts shall not intervene at the interlocutory stage under Article 226 of the Constitution. ``` ``` 7.Relying on the decisions of the Apex Court inCooper Engineering Ltd,S.K. Verma andD.P. Maheshwari(supra), this Court, inKerala State Electricity Board v. Rajamoni [1992 (2) KLT 66], ``` WP(C) No.13136 OF 2013 5 ``` held that the High Court shall not interfere with preliminary orders of the Labour Court and observed thus: ``` ``` “4. If the petitioners are aggrieved against the final award, they have adequate remedy at that stage. If opportunity has not been given to the petitioners to give evidence or if the Tribunal proceeded in violation of the principles of natural justice, the award can be challenged at that stage. If the award is in favour of the petitioners, the petitioners cannot be aggrieved and, therefore, there is no ground for staying the further proceedings, in any case, at this stage in this Original Petition. A speedy disposal of the industrial dispute is the prime requisite and this court will not be instrumental in stalling the proceedings and arresting final adjudication on the merit. Without prejudice to the petitioners' right to raise all the grounds raised in this petition if they are aggrieved at a later stage.” ``` ``` 8.This Court in Kerala Chemicals and ``` WP(C) No.13136 OF 2013 6 ``` Proteins Ltd. v. Labour Court, Ernakulam [2014 (4) KHC 107: 2014 (4) KLT SN 8: ILR 2014 (4) Ker. 585]considered the scope of interference by High Court with preliminary orders of Labour Court and after referring to the decisions in S.K. Verma, D.P.Maheshwari and Rajamoni(supra), held that this Court should not interfere with preliminary orders of the Labour Court, since such orders are capable of being challenged along with the final order that is to be passed by the Labour Court after adjudication of the dispute. ``` ``` 9. InAmrita Institute of Medical Sciences (AIMS) v. Labour Court [2017 (5) KHC: 2017 (4) KLT 1040], this Court, referring to the decisions in Cooper Engineering Ltd and D.P.Maheshwari(supra) observed that, the rationale for the decision in D.P.Maheshwari(supra), that the High Court in ``` WP(C) No.13136 OF 2013 7 ``` exercise of jurisdiction under Article 226 of the Constitution should not stop proceedings before the Industrial Tribunal so that a preliminary issue may be decided by them, appears to be the finding that neither the jurisdiction of the High Court under Article 226 of the Constitution nor the jurisdiction of the Supreme Court under Article 136 should 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 a decision on issues more vital to them. ``` ``` 10.The Division Bench of this Court in Chelamattom Sree Krishna Swami Devaswom Trust v. State of Kerala and Others [2022 (4) KHC 215]has held that a writ petition challenging the ``` WP(C) No.13136 OF 2013 8 ``` 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 and with liberty to challenge the preliminary order, if required, along with the final award. ``` ``` 11.This Court inPresident, Kunnampetta Ksheera Vyavasaya Sahakarana Sangham v. P.Madhavan Nair and Others [2014 (4) KHC 258] has taken the view that the dispute as to whether the employee is a workman or not need not be decided as a preliminary issue in all cases and that the same can be decided based on evidence. ``` ``` In the light of the dictum laid down by the Apex Court and this Court in the aforesaid decisions, I am not inclined to entertain the challenge against the preliminary award and the ``` WP(C) No.13136 OF 2013 9 ``` writ petition is dismissed leaving open the contentions of the parties and the right of the petitioner to challenge the final award of the Labour Court, including the preliminary order, if aggrieved. The Labour Court can proceed with I.D. No.1 of 2011. ``` ``` The writ petition is disposed of as above. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN, JUDGE ``` ``` sp/21/08/2023 ``` WP(C) No.13136 OF 2013 10 ## **`APPENDIX`** ## **`PETITIONERS’ EXHIBITS:-`** ``` EXHIBIT P1COPY OF NOTICE DATED 3/2/2005 ISSUED BY THE STATE ADVISORY CONTRACT LABOUR BOARD. ``` ``` EXHIBIT P2COPY OF GO (RT) NO.1054/2006/LBR DATED 14/05/2006. ``` ``` EXHIBIT P3COPY OF GO (RT) NO.1138/2006/LBR DATED 16/05/2006. EXHIBIT P4COPYOFRECEIPTISSUEDBY SRI.K.A.DEVASSY ``` ``` EXHIBIT P5COPY OF SELF DECLARATION ISSUED BY SRI.K.A.DEVASSY. ``` ``` EXHIBIT P6COPY OF LETTER DATED 15/12/2008 FROM THE PETITIONER TO TEH ENQUIRY OFFICER. EXHIBIT P7COPY OF STATEMENT DATED 7/3/2009 AND LIST OF WITNESSES SUBMITTED BY THE PETITIONER BEFORE THE ENQUIRY OFFICER. ``` - **`EXHIBIT P8 COPY OF ENQUIRY REPORT DATED 10/3/2009. EXHIBIT P9 COPY OF REPLY DATED 16/6/2009 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT.`** ``` EXHIBIT P10COPY OF CLAIM STATEMENT FILED BY TEH PETITIONER BEFORE THE LABOUR COURT. ``` - **`EXHIBIT P11 COPY OF WRITTEN STATEMENTS FILED BY THE 2ND RESPONDENT.`** WP(C) No.13136 OF 2013 11 ``` EXHIBIT P12COPY OF WRITTEN STATEMENTS FILED BY THE 3RD RESPONDENT. EXHIBIT P13COPY OF PRELIMINARY ORDER PASSED BY THE LABOUR COURT IN I.D. NO.1/2011. ```