M/S.Mathrubhumi Printing & Publishing Co. Ltd. v State of Kerala & Ors.

1 WPC 4617/208 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` FRIDAY, THE 22[ND] DAY OF DECEMBER 2023 / 1ST POUSHA, 1945 ``` ``` WP(C) NO. 4617 OF 2018 ``` ## **`PETITIONER/S:`** ``` M/S.MATHRUBHUMI PRINTING & PUBLISHING CO.LTD M.J.KRISHNAMOHAN MEMORIAL BUILDING,K.P.KESAVA MENON ROAD, KOZHIKODE - 673 001,REPRESENTED BY ITS MANAGING DIRECTOR. ``` ``` BY ADVS. SRI.U.K.RAMAKRISHNAN (SR.), SRI.U.K.DEVIDAS SRI.PRINSUN PHILIP, SMT.J.SURYA V KRISHNA MENON P.VIJAYAMMA(K/116/1970) A.B.BEENU(K/189/2008) ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY ITS SECRETARY TO THE GOVERNMENT,LABOUR & SKILLS (A) DEPARTMENT, THIRUVANANTHAPURAM 695001. ``` ``` 2THE INDUSTRIAL TRIBUNAL, KOZHIKODE 673020. 3THE GENERAL SECRETARY KERALA UNION OF WORKING JOURNALISTS,KESARI BUILDING, PULIMOODU,THIRUVANANTHAPURAM - 695 001. BY ADVS. SRI.A.JAYASANKAR, SRI.MANU GOVIND, SRI.S.SABARINADH, SMT.B.MEERA, SRI.RAHUL SURENDRAN ``` ## **`OTHER PRESENT:`** ``` SR GP REKHA C NAIR ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.12.2023, THE COURT ON 22.12.2023 DELIVERED THE FOLLOWING: ``` 2 WPC 4617/208 ## **JUDGMENT** (Dated this the 22[nd] day of December 2023) The petitioner, a company registered under the Companies Act, 2013, has filed this Writ Petition challenging Ext.P3 preliminary order passed by the court of Industrial Tribunal, Kozhikode in M.P.No.2 of 2017 in I.D.No.1 of 2016. 2. The brief facts necessary for the disposal of the petition are as follows: A person by name, Shri.C.Narayanan, while working as Chief Sub Editor at Kottackal unit of the petitioner, was issued with a show cause notice dated 3.7.2014 and was suspended from service pending enquiry. The reply submitted by the officer was found to be unsatisfactory, and a charge sheet was issued on 25.7.2014. The reply submitted by the officer to the charge sheet was also unsatisfactory for the management and therefore, decided to conduct a domestic enquiry into the charges levelled. The enquiry was conducted by an advocate and he submitted his report. In the domestic enquiry conducted, all the charges framed were proved and 3 WPC 4617/208 Sri.Narayanan was imposed with the punishment of discharge from service. On the imposition of punishment of discharge, the 3[rd] respondent union took up the matter as an industrial dispute. The Government of Kerala as per GR (Rt.) No.431/2016/LBR dated 15.3.2016 referred the issue for adjudication under Section 10(1)(d) of the ID Act. The dispute raised is as follows: “Whether the denial of employment to Sri.C.Narayanan employee by the management of Mathrubhoomi printing and publishing company Limited is justifiable or not? If not, what are the remedies available to him? 3. Pursuant to the reference, the dispute was registered as I.D.No.1 of 2016 and notice was issued for appearance. Thereafter, at the request of the union representing the workmen, by representation dated 8.6.2016, the issue referred for adjudication by the Industrial Tribunal, was modified as per G.O.(Rt.) No.850/2016-LBR dated 5.7.2016 as below: “whether the dismissal of Sri.C.Narayanan, Chief Sub Editor, by the management of Mathrubhoomi 4 WPC 4617/208 Printing and Publishing Company Limited is legal and justifiable? If not, what relief he is entitled to? 4. The Writ Petition is filed challenging the preliminary order of the Industrial Tribunal. 5. At the time of admission, while notice was ordered, an interim stay was granted staying all further proceedings in I.D.No.1 of 2016 pending before Industrial Tribunal, Kozhikode, which is even continuing today. 6. A counter affidavit has been filed on behalf of the 1[st] respondent. The stand of the Government was that the appropriate Government can refer any industrial dispute to Labour Courts or Industrial Tribunal. On the report received from the conciliation officer, Ext.P1 order dated 15.3.2016 was issued on the basis of a report. The union representing the workmen filed an objection against the issue of reference and requested for alteration in the issue as dismissed from service. After examining the report of the conciliation officer, the Government modified the reference as per Ext.P2. The 5 WPC 4617/208 Government has the power to issue an erratum order if any error is found in the order. 7. Heard, Shri. V. Krishna Menon for the petitioner and Shri A Jayasankar for the 3[rd] respondent and the Government Pleader for the 1[st] respondent. 8. The main contention raised by the counsel for the petitioner is that Ext.P3 order is illegal and perverse and therefore, it is liable to be quashed. Ext.P2 order is issued without jurisdiction violating all principles of natural justice. Ext.P1 order referred for adjudication is whether there is any denial of employment to Sri C Narayanan. The Tribunal was directed to decide the issue as to whether there was denial of employment alone. The union did not have any case that there was a denial of employment and the tribunal should have dismissed the I.D. Ext.P2 order passed by the Government is clearly without jurisdiction. He argues that under Section 6 WPC 4617/208 10(1)(5) of the Industrial Disputes Act, 1947 (for short ‘the ID Act, 1947’), a dispute once referred, can be modified only is of the opinion, whether on an application made to it in this behalf or otherwise, that the dispute is of such a nature that any of the establishment, group or class of establishments of a similar nature is likely to be interested in, or effected by, such dispute, the appropriate government may, at the time of making the reference or at any time thereafter, but before the submission of the award, include in that reference such establishment, group or class of establishments, whether or not at the time of such dispute exists or it apprehended in that establishment, group or class of establishments. A perusal of Ext.Nos.P1 and P2 would show that the dispute referred relates to Shri C. Narayanan alone and therefore, Ext.P2 is issued without jurisdiction and against Section 10(1)(5) of the ID Act 1947. He also argued that even if the Government has power (without admitting so) the question referred to as per Ext.P2 is 7 WPC 4617/208 whether the dismissal of Sri C.Narayanan, is legal and justifiable. Right from the objection made to the conciliation officer as well as the objection raised before the Industrial Tribunal, the specific case of the management was that Sri C.Narayanan was not dismissed from service, but discharged from service after conducting a domestic enquiry strictly following the principles of natural justice. The preliminary order passed by the Industrial Tribunal holding that the reference made by the Government as per reference order G.O.(Rt.) No.850/2016/LBR is legal and proper, is not correct and therefore, is liable to be quashed. He argued at length taking me through the preliminary order and pointing out that the Tribunal was not justified in going beyond the reference as has been held by a series of judgments of the apex court. 9. He submitted that punishments can be of different types which an employer can impose. They are (i) warning, (ii) fine (iii) stoppage or withholding of increment (iv) demotion 8 WPC 4617/208 (v) suspension (vi) discharge and (viii) dismissal from service. Therefore, it is very clear that discharge and dismissal from service are two types of punishment. When Ext.P2 refers to dismissal from service the Tribunal is not justified in entering into a finding that discharge from service can be looked into by the Tribunal, even though the reference is in respect of dismissal. He further submits that when the jurisdictional aspect of the Industrial Tribunal is in question, he is fully justified in invoking the jurisdiction of this court under Article 226 of the Constitution of India. 10. Sri Jayasankar appearing for 3[rd] respondent submits that a writ petition of this kind is not maintainable against the preliminary order passed by the Tribunal as per Ext.P3. He relied on the judgment of the apex court in **D.P. Maheshwari** **v. Delhi Administration and others [1983(4) SCC 293]** as well as **Chellamattom Sree Krishna Swami Devaswom Trust v. State of Kerala and others[ 2022 (4) KHC 215]** to 9 WPC 4617/208 contend for the proposition that preliminary issue decided by the Tribunal should not be entertained under Article 226 or Article 136 of the Constitution of the India, and therefore, the Writ Petition ought to have been dismissed in _limine._ 11. Ext.P3 is the preliminary order issued by the Industrial Tribunal deciding the validity and justifiability of the issue referred as per G.O.(Rt.) No.850/2016/LBR. The Tribunal, after elaborate consideration of the facts and circumstances of the case, held that the reference order is legal and proper and the Tribunal is empowered to adjudicate the industrial dispute as per the reference. The apex court in **D.P. Maheshwari** (supra), taking note of the fact that preliminary orders passed by the Industrial Tribunal are challenged before the High Court as well as the Apex court by the management putting the workman through much hardship and to wait for years. Taking note exception to this, the apex court held as follows: 10 WPC 4617/208 1. 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 the jurisdiction under Article 226 of the Constitution stop proceedings before 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 partadjudication 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 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. 11 WPC 4617/208 12. The division bench of this court relying on **D.P.Maheswari (supra)** has held that Writ Petitions challenging the orders of the labour court need not be entertained and the aggrieved party should be relegated to the labour court with liberty to challenge the preliminary order, if required along with the final award. The intention behind the relegation was that the Industrial Tribunals are constituted for expeditious disposal of the disputes and the jurisdiction of this court under Article 226 of the Constitution of India in relation to industrial dispute is not appellate jurisdiction but a supervisory one. 13. Taking note of the above dictum laid by the apex court as well as the division bench of this court, I am of the firm view that the Ext.P3 preliminary order passed by the Industrial Tribunal needs no interference at this stage. Therefore, this Writ Petition is dismissed, with liberty to the petitioner to challenge the order, if so advised, along with the final order to 12 WPC 4617/208 be passed in I.D.No.1 of 2016. It is to be noted that the petitioner was discharged from service on 5.6.2015 and the reference was in the year 2016. The Writ Petition was filed challenging the preliminary award in the year 2018 and all further proceedings have been stayed for the last 5 years. Therefore, I deem it appropriate to direct the Industrial Tribunal, Kozhikode to dispose of I.D.No.1 of 2016, as expeditiously, as possible and at any rate within a period of 3 months from the date of receipt of a copy of this judgment. Sd/- **BASANT BALAJI JUDGE** dl/ 13 WPC 4617/208 ## **`APPENDIX OF WP(C) 4617/2018`** ## `RESPONDENT EXHIBITS` ``` Exhibit TRUE COPY OF THE STATEMENT OF CLAIM DATED R3(a)08.07.2016 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 2ND RESPONDENT ``` ``` Exhibit TRUE COPY OF THE COUNTER STATEMENT DATED R3(b)14.10.2016 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ``` ``` Exhibit TRUE COPY OF THE REJOINDER DATED 16.11.2016 FILED R3(c)BY THE 3RD RESPONDENT BEFORE THE 2ND RESPONDENT ``` ``` Exhibit TRUE COPY OF THE PETITION FILED BY THE PETITIONER R3(d)BEFORE THE 2ND RESPONDENT ALONG WITH THE AFFIDAVIT DATED 04.04.2017 ``` ``` Exhibit TRUE COPY OF THE LIST OF DOCUMENTS DATED R3(e)04.04.2017 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ``` ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P3.TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 10.01.2018 IN MP NO.2/2017 IN ID NO.1/2016. ``` ``` EXHIBIT P2.TRUE COPY OF THE GOVERNMENT ORDER DATED 05.07.2016. ``` ``` EXHIBIT P1.TRUE COPY OF THE GOVERNMENT ORDER DATED 15.03.2016. ```