JUDGMENT This is an application under Articles 226 and 227 of the Constitution of India in which the petitioner - Company has prayed for Issuance of an appropriate writ quashing the order dated the 18th January, 1977 (Annexure 4) passed by the Presiding Officer, Labour Court Board (respondent No. 1) in a proceeding Under Section 26 of the Bihar Shops and Establishment Act, 1953 (hereinafter referred to as 'the Shops Act'). Further prayer made is for a direction to respondent no. 1 to dispose of the preliminary objection raised by the petitioner going to the root of the Labour Court's jurisdiction before calling upon the petitioner to adduce evidence on merits of the case. 2. The facts are not much in controversy. On the 30th November, 1960 Sri Rajnath Mishra (respondent no. 2) was appointed as a clerk in the Service Department of the Automobile Division of the petitioner Company. His duties normally were to maintain the relevant vehicle Data, vehicle Cards etc, and to prepare internal warrants for such vehicles. On the 6th of February, 1971 and 12th of February 1971 charge-sheets were served on respondent no. 2 framing certain charges against him, copies whereof have been marked Annexures 'A' and 'B' to the counter affidavit respectively. It is alleged by the petitioner that after holding of a due domestic enquiry, an order was passed by the Management of the Petitioner-Company on the 14th of April, 1972 dismissing respondent no. 2 from service with effect from the 13th of February, 1971. A copy of the said order has been marked Annexure 6 to this application. On the 29th of August, 1973 respondent no. 2 filed a petition of complaint under section 26 of the Shops Act, a copy whereof has been marked Annexure 7. On the 17th of November, 1973 the Management of the petitioner Company filed an application before the Presiding Officer, Labourt Court, Jamshedpur before whom the complaint had been initially filed, raising preliminary objection to the maintainability of the complaint under section 26 of the Shops Act. A copy of that application has been marked ANNEXURE 1'. The preliminary objection raised by the petitioner was that the Labour Court had no jurisdiction to maintain the application under section 26 of the Shops Act, as respondent no. A copy of that application has been marked ANNEXURE 1'. The preliminary objection raised by the petitioner was that the Labour Court had no jurisdiction to maintain the application under section 26 of the Shops Act, as respondent no. 2 was not an employee within the meaning of Section 2 (4) of the Shops Act, nor was the petitioner Company an Establishment within the meaning of Section 2 (6) of the Shops Act. It was alleged in the objection that respondent no. 2 was a “Worker” within the meaning of the Factories Act, 1948 (Act 63 of 1948 and as such was not covered by the term 'employee' within the meaning of the Shops Act. It was contended that respondent no. 2 being a worker within the meaning of the Factories Act, the provisions of the Shops Act, were not at all applicable and that the complaint before the Labour Court was, there fore, wholly misconceived and the Labour Court had no jurisdiction to Act, in the matter under the Provisions of the Shops Act. 3. On the 28th of December, 1973 the Labour Court passed an order to the effect that the arguments relating to the hearing of the preliminary objections were heard. A copy of that order has been marked Annexure 2 to this application. On the 18th of January, 1974 both the parties were directed to adduce evidence and advance arguments on the merits of the preliminary objection. A copy of the said order dated the 18th of January, 1974 has been marked as Annexure 8 to the Supplementary affidavit tiled by the petitioner on the 27th of September, 1977. On, the same date that is, 18th of January, 1974 the Presiding Officer, labour Court Jamshedpur again passed an order to the effect that the petitioner should file its show cause by the 7th of February. 1974 and that on that very date both the parties must adduce evidence and advance arguments on the preliminary issues. It seems, the matter remained pending for one reason or the other for a long time. Ultimately, on the 19th of May, 1976 this case was transferred from the file of the Labour Court, Jamshedpur to the Labour Court at Bokaro. The Bokaro Labour Court received the case on transfer on the 13th of August, 1976. It seems, the matter remained pending for one reason or the other for a long time. Ultimately, on the 19th of May, 1976 this case was transferred from the file of the Labour Court, Jamshedpur to the Labour Court at Bokaro. The Bokaro Labour Court received the case on transfer on the 13th of August, 1976. On the 6th of September 1976 the Presiding Officer, Labour Court, Bokaro (respondent No.1) fixed the 10th of November, 1976 as the date for further hearing of the matter. On the 10th of November, 1976 the petitioner examined a solitary witness only on the preliminary issue regarding the question as to whether respondent No. 2 was a worker within the meaning of the Factories Act, or Could he be said to be an employee within the meaning of the Shops Act. The Management witness on the point was examined and discharged and all connecting documents on the preliminary issue were filed in the case. It is worthwhile to mention that even before the case had been transferred to the Labour Court at Bokaro, respondent No. 2 had already examined five witnesses on his behalf who had been cross examined by the Management certain documents were also filed on behalf of respondent No 2. The witnesses examined and the documents filed on behalf of respondent No. 2 were in respect of both the preliminary issues as well as on the merits of the complaint. On the 18th of January, 1977 when the petitioner made a prayer to respondent No.1 that the preliminary issue regarding jurisdictional fact be decided first, the respondent No. 1 by the impugned order of that date (Annexure 4) rejected its prayer on the ground that the hearing of the case on merit had already commenced and, therefore, both the preliminary issue as well as the case on merits will be decided at the same time. It is against this order that the petitioner has come to this court. 4. Mr. S. B. Sanyal learned counsel for the petitioner urged two points in support of this application. It is against this order that the petitioner has come to this court. 4. Mr. S. B. Sanyal learned counsel for the petitioner urged two points in support of this application. It was urged firstly that the jurisdiction of the Labour court itself having been challenged before proceeding to examine the case on merits, the question regarding the courts jurisdiction must be decided first, since if it is held that the Labour court has no jurisdiction to entertain the application under Section 26 of the Shops Act, all further proceedings before it, will be absolutely without jurisdiction. The second submission of the learned counsel was that the Presiding Officer, Labour Court, Jamshedpur had already passed repeated orders previously to the effect that the preliminary issue will be decided first. The petitioner had, accordingly, adduced evidence only on the preliminary issue. It was in the circumstances beyond the jurisdiction of the Labour Court, Bokaro (Respondent No.1) to pass the impugned order which is really in the nature of an order of recall or review of the previous order passed by his predecessor in office. Since there was no statutory provision to recall or review the respondent No. 1 had no jurisdiction to recall the order passed by his predecessor in office. 5. As regards the first point, learned counsel pressed upon our attention a decision of the Supreme Court in the case of Management of Express Newspapers (P) Ltd. Vs. The Workers and others Gajendragadkar, J. (as he then was) speaking for the court, had observed as follows :- “It is also true that even if the dispute is tried by the Industrial Tribunal, at the very commencement the Industrial Tribunal will have to examine as a preliminary issue the question as to whether the dispute referred to It is an Industrial dispute or not, and the decision of this question would inevitably depend upon the view which the Industrial Tribunal may take as to whether the action taken by the Appellant is a closure or a lockout. The finding which the Industrial Tribunal may record on this preliminary issue will decide whether it has jurisdiction to deal with the merits of the dispute or not. If the finding is that the action of the appellant amounts to a closure, there would be an end to the proceeding before the Tribunal so far as the main dispute is concerned. If the finding is that the action of the appellant amounts to a closure, there would be an end to the proceeding before the Tribunal so far as the main dispute is concerned. If, on the other hand, the finding is that the action of the appellant amounts to a lockout which has been disguised as a closure, when the Tribunal will be entitled to deal with the reference. The finding which the Tribunal may make on this preliminary issue is a finding on a jurisdictional fact is found against the appellant that the Industrial Tribunal would have jurisdiction to deal with the merits of the dispute. This position is also not in dispute.” Cases are numerous on this point alone, If a court or a Tribunal is confronted with a situation wherein its very jurisdiction to entertain an action is challenged, it is meet and proper that in such cases the preliminary issue regarding jurisdiction of the Labour Court or Industrial Tribunal to entertain the dispute on complaint be decided first. The reason is obvious. If the Labour Court comes to a conclusion that the provisions of the Shops Act, are not applicable, its trial of the case on merits will evidently be without jurisdiction. On the contrary, if it is found that it has jurisdiction to entertain the application or dispute, it can proceed to decide the case on merits and in such a case while attacking the decision on merits the decision on the preliminary issue will also open the attack in an application under Article 226 of the Constitution. On the facts and in the circumstances of the case, there can be no doubt that the presiding officer, Labour Court at Jamshedpur had initially passed orders to the effect that the evidence and arguments relating to the preliminary issue be adduced & advanced first. In such circumstances it was not legally justifiable for the labour court at Bokaro to pass an order, the affect of which would be to recall or review the orders passed by his predecessor in office. Both the points of Mr. Sanyal merit consideration. 6. Learned Counsel for respondent no. 2 however, urged that respondent no. 2 had already adduced evidence both with regard to the preliminary issue as also with regard to the complaint on merits. Both the points of Mr. Sanyal merit consideration. 6. Learned Counsel for respondent no. 2 however, urged that respondent no. 2 had already adduced evidence both with regard to the preliminary issue as also with regard to the complaint on merits. The witnesses examined on behalf of respondent no 2, were also cross-examined on merits by the petitioner. In such circumstances, it could not be said that assuming at respondent no. 1 had acted illegally in recalling or reviewing the orders of his predecessor-in office any injury had been caused to the petitioner by the impugned order, or such illegality bas resulted in any substantial failure of justice within the meaning of sub-clause (c) of clause (1) of Article 226 as it stands after Constitution (forty second Amendment) Act, 1976. It is true that when this application was filed by the petitioner no specific averment had been made in the petition pointing to any substantial failure of justice. Supplementary affidavit however, has been filed by the petitioner on the 5th October, 1977 wherein a number of facts have been stated. It has been stated in that supplementary affidavit that if the petitioner had known at the very outset that it had to lead evidence on merit, it could have examined Mr. G. M. Nandkarni, service Manager who actually died in the year 1976. The petitioner could have also examined Mr. I.L. Verma who is connected with one of the incidents following the subject matter of the charge-sheet but he retired in 1974 and his where abouts are not known to the petitioner. His evidence can be procured only at a considerable cost of money and time. One more person, namely Mr. G. C. Daunt who is connected with the charge-sheet dated the 6th February 1971 had gone to Australia in the year 1975 and he was also a very important witness whose presence can now only be secured at a considerable cost to the petitioner. It has further been submitted that if the Labour court had rejected the prayer of the petitioner in the first instance regarding hearing of the preliminary issue first, the petitioner would not have been deprived of the services of the aforesaid witnesses who were all available at that time. 7. A supplementary counter affidavit has been filed on behalf of respondent no. 7. A supplementary counter affidavit has been filed on behalf of respondent no. 2 on the 10th October, 1977 in reply to the supplementary affidavit of the petitioner filed on the 5th of October, 1977. The facts stated by the petitioner regarding the illegality resulting in substantial failure of justice as averred and asserted by the petitioner have not been controverted. All that has been reiterated in the Supplementary counter affidavit of respondent no. 2, is that respondent no. 2 had already adduced his evidence on the merits as well. 8. Mr. Sanyal in course of his submissions argued that the present application ought to be held to be covered by sub clause (b) of clause (1) of Article 226 of the Constitution and, therefore, merely an injury of a substantial nature has to be proved. Alternatively, he argued that whether the case is held to fall under sub-clause (b) or sub-clause (c) of Article 226 (1), it will make little difference on this question because an injury of a substantial nature within the meaning of sub-clause (b) can very well be equated with an injury by reason of any illegality resulting in substantial failure of justice within the meaning of sub-clause (c). We are not prepared to accept the contention that the instant case can fall within sub-clause (b) of Article 226 (1) of the Constitution Manifestly it is covered by sub-clause (c). The question with regard to the true connotation of the expression injury of a substantial nature within the meaning of sub-clause (b) is, therefore, wholly academic in the present case. We have merely to test as to whether on the facts stated above the petitioner can be said to have suffered an injury by reason of the illegality resulting in substantial failure of justice or not. Whether there is an injury of a substantial nature or there is substantial failure of justice, is a question which has to be decided on the facts obtaining in each case. No precise or hard and fast definition is possible to be against these two expressions. None the less what has to be borne in mind is that when the Forty second Amendment Act, 1976 speaks of substantial failure of justice that question must be decided and judged from the subjective point of view of the person aggrieved. No precise or hard and fast definition is possible to be against these two expressions. None the less what has to be borne in mind is that when the Forty second Amendment Act, 1976 speaks of substantial failure of justice that question must be decided and judged from the subjective point of view of the person aggrieved. What may be a loss or an injury of trifling nature to one, may amount to the loss of the kingdom of another person placed in an altogether different situation and walk of life. Each case, therefore. must be decided on its own facts to find out as to whether the illegality has resulted in substantial failure of justice to the person who seeks a redress of his injury within the meaning of Article 226 (1) (c). Reliance was rightly placed by the learned counsel for the petitioner on a Full Bench decision of the Andhra Pradesh High Court in the case of Government of India and others Vs. The National Tobacco Co. of India Ltd., Calcutta. After having considered the reasons given in that decision, we accept with respect, the observations of the Full Bench in this regard which do go to support the principles laid down by us. 9. In the instant case from the uncontroverted facts stated in the petitioner's supplementary affidavit filed in this case on the 5th of October, 1977, we have no hesitation in holding that the illegality in the instant case has resulted in substantial failure of justice to the petitioner. If the order regarding the hearing of the preliminary issue had not been passed by the Labour Court, Jamshedpur on the 28th December. 1973 and also on the 18th January, 1974, the petitioner would have not been placed in such a hard and embarrassing predicament as to lose the assistance of the witnesses who were readily available at that time and one of whom is since dead and a few others reside outside the country. In the event of the preliminary issue being decided against the petitioner, the petitioner will have to thank its own lot for having insisted upon the disposal of the jurisdictional fact in the first instance. That is its stand at present. In the event of the preliminary issue being decided against the petitioner, the petitioner will have to thank its own lot for having insisted upon the disposal of the jurisdictional fact in the first instance. That is its stand at present. In the view that we have already taken regarding the illegality committed by respondent No. 1 resulting in substantial failure of justice to the petitioner, we are constrained to allow this application and quash the order dated the 18th January, 1977 as contained in Annexure-4, We further direct respondent No. 1 to decide the jurisdictional fact as the preliminary issue in the first instance on the evidence already on record and only if he comes to the conclusion that the complaint in maintainable, he shall proceed to decide the case on merits without granting any further indulgence to the petitioner, excepting to grant it some reasonable time within which it must produce its witnesses on merits. 10. The application is, accordingly, allowed with the observations and directions as aforesaid, There will be no order as to costs, Application allowed.