Director (Reji Varghese) SAJ Lucia v. Labour Court, Kollam & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **TUESDAY, THE 19[TH] DAY OF JULY 2022 / 28TH ASHADHA, 1944** **WP(C) NO. 9340 OF 2022** ## **PETITIONER:** **THE DIRECTOR (REJI VARGHESE) SAJ LUCIA, EAST FORT, THIRUVANANTHAPURAM - 682 023.** **BY ADVS. P.RAMAKRISHNAN PREETHI RAMAKRISHNAN T.C.KRISHNA C.ANIL KUMAR ASHA K.SHENOY PRATAP ABRAHAM VARGHESE** ## **RESPONDENTS:** **1 LABOUR COURT, KOLLAM - 691 001. 2 ARUN KUMAR R. C ASWATHY, PANDARAKONAM, ANAD P. O, NEDUMANGAD, THIRUVANANTHAPURAM - 695 541.** **R2 - SRI. GOPAKUMAR R.THALIYAL - SRI. M.S.VIJAYACHANDRAN BABU** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.9340 OF 2022** **2** ## **JUDGMENT** The 2[nd] respondent was dismissed from the service of the petitioner as per order dated 30.09.2018. The 2[nd] respondent raised an industrial dispute against the punishment of dismissal imposed on him and filed I.D No.85 of 2019 before the 1[st] respondent Labour Court, Kollam under Section 2A (2) of the Industrial Disputes Act, 1947 (for short 'the Act'). 2. A claim statement was filed by the 2[nd] respondent before the 1[st] respondent and the petitioner filed a written statement controverting the contentions of the 2[nd] respondent. The petitioner raised a preliminary objection as to the maintainability of the dispute contending that the 2[nd] respondent is not a workman as defined under the Act. 3. The Labour Court, by Ext.P5 order, held that **WP(C).No.9340 OF 2022** **3** the question whether the employee is a workman or not and whether the employee is working in administrative or supervisory capacity would require evidence and therefore all questions of fact and law can be raised at final stage when a final award is passed in the dispute. The said order is challenged in this writ petition. 4. The Supreme Court in **Cooper 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 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.”_ **WP(C).No.9340 OF 2022** **4** 5. 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. 6. Relying on the decisions of the Apex Court in **Cooper Engineering Ltd, S.K. Verma and D.P. Maheshwari** (supra), this Court, in **Kerala State Electricity Board v. Rajamoni [1992 (2) KLT 66],** 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_ **WP(C).No.9340 OF 2022** **5** _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.”_ 7. This Court in **Kerala Chemicals and 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 **WP(C).No.9340 OF 2022** **6** Court after adjudication of the dispute. 8. In **Amrita 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 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. 9. The Division Bench of this Court in **WP(C).No.9340 OF 2022** **7** ## **Chelamattom Sree Krishna Swami Devaswom Trust** _**v**_ **. State of Kerala and Others** [2022 (4) KHC 215] has held that a writ petition challenging the 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. 10. This Court in **President, 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. 11. The Labour Court, in Ext.P5 order, has held that the question as to whether the 2[nd] respondent is working in administrative or supervisory capacity requires evidence and the same can be decided at the **WP(C).No.9340 OF 2022** **8** final stage and need not be considered as a preliminary issue. The petitioner as well as the 2[nd] respondent shall be given opportunity to adduce evidence on the issue and in case the final award is against the petitioner, the petitioner will be free to challenge the same appropriately. The Writ Petition is accordingly dismissed leaving open the right of the writ petitioner to challenge the final award of the Labour Court, if aggrieved. ## **Sd/-** **MURALI PURUSHOTHAMAN JUDGE** SPR **WP(C).No.9340 OF 2022** **9** ## **APPENDIX** ## **' - PETITIONER S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF CLAIM STATEMENT DATED**| |---|---| ||**28/10/2019 FILED BY THE 2ND RESPONDENT**| ||**BEFORE THE 1ST RESPONDENT AS I.D.NO.85/**| ||**2019.**| |**EXHIBIT P2**|**TRUE COPY OF WRITTEN STATEMENT DATED**| ||**28/09/2021 FILED BY THE PETITIONER IN**| ||**I.D.NO.85/2019.**| |**EXHIBIT P3**|**TRUE COPY OF A PETITION FILED BY THE**| ||**PETITIONER ALONG WITH AFFIDAVIT DATED**| ||**22/01/2022 IN IA NO.19/2002 IN ID NO.**| ||**85/2019.**| |**EXHIBIT P4**|**TRUE COPY OF OBJECTION DATED 04/02/2022**| ||**FILED BY THE 2ND RESPONDENT IN ID NO.**| ||**85/2019.**| |**EXHIBIT P5**|**TRUE COPY OF ORDER DATED 22/02/2022**| ||**PASSED BY THE 1ST RESPONDENT IN IA NO.**| ||**19/2022 IN ID NO.85/2019.**| **RESPONDENTS EXHIBITS: NIL.**