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2015 DIGILAW 265 (JHR)

Jardine Henderson Limited v. Bhola Nath Singh

2015-02-19

SHREE CHANDRASHEKHAR

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Order Aggrieved by order dated 15.09.2010 whereby, the objection as to maintainability for want of jurisdiction has been rejected, the present writ petition has been filed. 2. The brief facts of the case are that, in the year, 1988 about 101 workmen were retrenched and consequently a dispute arose which was referred for conciliation. After the conciliation failed, the Government of Bihar referred the matter for adjudication vide notification no. 5/88 dated 03.02.1988. An award dated 25.11.1993 was passed by the Industrial Tribunal upholding the order of retrenchment of 101 employees. The said award was challenged in C.W.J.C. No. 1408 of 1994 (R) and by order dated 23.08.2002 this Court set-aside the award dated 25.11.1993 and directed reinstatement with consequential benefits to 101 workmen. The petitioner-Management preferred L.P.A. No. 577 of 2002 which was dismissed on 30.04.2003 and the Special Leave Petition being Civil Appeal No. 4466 of 2004 was also dismissed by the Hon'ble Supreme Court. Out of 101 workmen, 30 workmen preferred Contempt Case (Civil) No. 811 of 2003 which was dismissed vide order dated 02.05.2007. Another Contempt petition being Contempt Case (Civil) No. 638 of 2007 was filed by 7 workmen out of the group of 71 workmen who had earlier settled their claim with the Management and the said Contempt application was dismissed vide order dated 17.02.2009. Thereafter, 45 workmen out of group of the 71 workmen filed M.J. Case No. 29 of 2010 under Section 33(C)(2) of Industrial Disputes Act for computation of wages and other consequential benefits. The petitioner-Management raised a preliminary objection which has been rejected vide order dated 15.09.2010 and the said order has been challenged by the petitioner in the present proceeding. 3. A counter-affidavit has been filed on behalf of the workmen stating that the workmen in the present case were not party in the Contempt Case (Civil) No. 638 of 2007. The alleged settlement made in February, 1994 was for the payment for the period prior to retrenchment that is, prior to 13th January, 1989. The copy of alleged agreement has not been produced before the Court. In view of order passed by this Court in C.W.J.C. No. 1408 of 1994(R), all the workmen including the present respondents are entitled for monetary and consequential benefits. 4. Heard the learned counsel for the parties. 5. Mr. The copy of alleged agreement has not been produced before the Court. In view of order passed by this Court in C.W.J.C. No. 1408 of 1994(R), all the workmen including the present respondents are entitled for monetary and consequential benefits. 4. Heard the learned counsel for the parties. 5. Mr. M.S. Anwar, the learned Senior counsel appearing for the petitioner-Management submits that it is well-settled that the question of jurisdiction should be raised at the first instance and that is precisely what the petitioner-Management has done in the proceeding of M.J. Case No. 29 of 2010. It is submitted that since the question of jurisdiction goes to the root of the matter, it is required to decide first however, the learned Industrial Court dismissed the application and proceeded to decide all the issues in the case which is contrary to law. It is further submitted that 71 workmen out of 101 workmen who had approached the Industrial Tribunal settled their claim and received payment from the petitioner-Management and thus, no cause survives in so far as, 71 workmen are concerned. Seven workmen out of 71 workmen who had already settled their claim with the petitioner-Management approached this Court in Contempt Case (Civil) No. 638 of 2007 and after hearing the parties Contempt Case (Civil) No. 638 of 2007 was dismissed and thus, the issue whether the private respondents are entitled for benefit under order dated 23.08.2002 in C.W. J.C. No. 1408 of 1994(R), is concerned, is concluded by the order passed in Contempt Case (Civil) No. 638 of 2007 and therefore, the Labour Court has no jurisdiction to proceed in the matter for computation of wages and other benefits to the employees. 6. As against the above, Mr. Mahesh Tewari, the learned counsel for the private respondents reiterated the stand taken in the counter-affidavit and submits that order passed in C.W.J.C. No. 1408 of 1994(R) became final after the dismissal of Special Leave Petition on 27.10.2005 and thus, it cannot be said that the petitioners are not entitled for benefit of order dated 23.08.2002 in C.W.J.C. No. 1408 of 1994(R). It is further submitted that for the first time, in the proceeding of Contempt Case (Civil) No. 811 of 2003, a statement was made that out 101 workmen, 71 workmen had settled their claim with the company however, a copy of the alleged settlement was never brought on record. It is further submitted that for the first time, in the proceeding of Contempt Case (Civil) No. 811 of 2003, a statement was made that out 101 workmen, 71 workmen had settled their claim with the company however, a copy of the alleged settlement was never brought on record. In fact alleged settlement was entered in February, 1994 in respect of the lockout period whereas, under order dated 23.08.2002 passed in C.W.J.C. No. 1408 of 1994(R), the workmen would be entitled for benefit of reinstatement and other consequential benefits. The learned counsel for the private respondents relied on the decision in “D.P. Maheshwari Vs. Delhi Administration and others”, reported in (1983) 4 SCC 293 . 7. I have carefully considered the submissions of the learned counsel for the parties and perused the documents on record. 8. The facts in the present case are not much in dispute. The order passed in C.W.J.C. NO. 1408 of 1994(R) became final after the Civil Appeal No. 4466 of 2004 was dismissed by the Hon'ble Supreme Court on 27.10.2005. Neither before the Writ Court nor before the Letters Patent Court, the petitioner-Management averred or submitted before the Court that 71 workmen out of 101 workmen had already settled their claim. However, from order dated 30.03.2007 in Contempt Case (Civil) No. 811 of 2003, it appears that a statement was made before the Court that out of 101 workmen, 71 workmen have settled their claim with the Management. Relying on the said statement, the Contempt application filed by 7 workmen out of 71 workmen who allegedly had settled their claim was dismissed vide order dated 17.02.2009. The learned Senior counsel submits that in view of order dated 17.02.2009 in Contempt Case (Civil) No. 638 of 2007, no cause of action survives and the proceeding in M.J. Case No. 29 of 2010 is barred by resjudicata. 9. From order passed in Contempt Case (Civil) No. 811 of 2003, it appears that the said case was filed by remaining other 30 workmen who were not part of the remaining 71 workmen who have already allegedly settled their claim with the Management and therefore, the statement made in proceeding of Contempt Case (Civil) No. 811 of 2003 cannot be the sole basis for denying claim, if any, of the remaining 71 workmen. A perusal of order dated 17.02.2009 also does not indicate that any other material was brought to the notice of the Court to establish that there has been a settlement in terms of order passed in C.W.J.C No. 1408 of 1994(R). In contempt proceeding a Court is primarily concerned with the question of deliberate and willful violation of order passed by the Court. The proceeding in contempt case is quasi-judicial proceeding and therefore, power under the Contempt of Courts Act, 1971 as well as under Article 215 of the Constitution of India are exercised sparingly. Dismissal of a Contempt petition cannot be construed to mean that the applicants in M.J. Case No. 29 of 2010 have no surviving right flowing from order passed in C.W.J.C. No. 1408 of 1994 (R). It is wellsettled that the question of jurisdiction can be decided at the final hearing also. In “D.P. Maheshwari Vs. Delhi Administration and others”, reported in (1983) 4 SCC 293 , the Hon'ble Supreme Court has observed as under: “1. .......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 their jurisdiction under Article 226 of the Constitution stop proceedings before a tribunal so that a preliminary issue may be decided by them.................” 10. In the present case the Labour Court has decided to proceed in the matter for deciding all the issues involved. Thus, if, the Management is able to establish that there has been full and final settlement with 71 workmen, that can be taken into account by the Labour Court. The plea raised by the petitioner-Management can be established during the trial of M.J. Case No. 29 of 2010 by producing copies of proceeding of Contempt cases including pleadings as well as evidence of settlement with 71 workmen. 11. The plea raised by the petitioner-Management can be established during the trial of M.J. Case No. 29 of 2010 by producing copies of proceeding of Contempt cases including pleadings as well as evidence of settlement with 71 workmen. 11. Considering the above, I am not inclined to interfere with the impugned order dated 15.09.2010 in M.J. Case No. 29 of 2010 however, liberty is reserved with the petitioner to raise the plea of resjudicata, estoppel, maintainability, jurisdiction etc. at the time of final hearing. The petitioner is also at liberty to produce the pleadings in previous proceedings before this Court and the evidence of payment/settlement with 71 workmen including the present respondents. The writ petition is dismissed with aforesaid liberty to the petitioner. Accordingly, I.A. No. 4604 of 2014 also stands dismissed. Petition dismissed.