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2017 DIGILAW 1265 (BOM)

Manganese Ore (I) Ltd. v. Mohd. Yunusuddin Sheikh

2017-07-04

B.P.DHARMADHIKARI, ROHIT B.DEO

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JUDGMENT : B.P. DHARMADHIKARI, J. 1. The appellant/employer assails judgment dated 25-01-2008 delivered by learned Single Judge of this Court in Writ Petition No. 3396/2001 filed by respondent No.1 workman. The workman approached this Court for issuing appropriate directions to reference Court namely Central Government Industrial Tribunal. Central Government Industrial Tribunal was considering preliminary objection raised by appellant/employer that workman who had invoked its jurisdiction was not covered under Section 2(s) of the Industrial Disputes Act, 1947. When parties were adducing evidence on issue of workman, during cross-examination of third witness of management, respondent No.1, filed application and objected to hearing on preliminary point. He submitted that this exercise was no longer open because of findings recorded by the High Court in Writ Petition No.678/2000. The Labour Court rejected that application on 07-02-2007 and this rejection then formed subject matter of Writ Petition No.3396/2007. 2. Learned Single Judge heard respective parties and then came to conclusion that issue was not open for scrutiny in reference proceedings before the Labour Court. The workmen's objection to that scrutiny because of earlier adjudication by High Court was upheld and writ petition was allowed. 3. Learned Advocate Shri Masood Shareef appearing for appellant submits that challenge in earlier Writ Petition No.678/2000 was essentially different in nature and content as compared to challenge in Writ Petition No.3396/2007. Question whether respondent No.1 is or is not a workman as denied in Section 2(s) of the Industrial Disputes Act is essentially a question of fact and cannot be answered in absence of oral evidence and documents. Writ Petition No.678/2000 was filed at very early stage when order making reference of dispute to Central Government Industrial Tribunal itself was questioned. Thus contentions raised at that juncture were only to demonstrate non-application of mind by reference making authority and therefore, lack of subjective satisfaction. He submits that findings then recorded were not after appreciation of material brought on record as evidence. To buttress his contention, he has relied upon judgment of Hon'ble Supreme Court in the case of Chauharya Tripathi and Ors. vs. LIC of India and Ors. reported at AIR 2015 SC 2275 and in the case of Secretary, Indian Tea Association vs. Ajit Kumar Barat and others reported at AIR 2000 SC 915 . 4. Nobody appears for respondent No.1 or respondent No.3 Tribunal. 5. Learned Advocate Mrs. Mugdha Chandurkar has appeared for respondent No.2/Union of India. vs. LIC of India and Ors. reported at AIR 2015 SC 2275 and in the case of Secretary, Indian Tea Association vs. Ajit Kumar Barat and others reported at AIR 2000 SC 915 . 4. Nobody appears for respondent No.1 or respondent No.3 Tribunal. 5. Learned Advocate Mrs. Mugdha Chandurkar has appeared for respondent No.2/Union of India. She submits that findings recorded by learned Single Judge in judgment dated 25-01-2008 are neither without jurisdiction nor perverse. 6. Appellant has relied upon judgment in the case of Chauharya Tripathi and Ors. vs. LIC of India and Ors. (supra), to urge that issue whether a particular person is or is not a workman can be adjudicated upon only after parties adduce evidence. It is apparent that the issue itself necessitates scrutiny of the work performed by such person, his essential duties and other duties. This can be brought on recored only through oral evidence. 7. Judgment in case of Secretary, Indian Tea Association vs. Ajit Kumar Barat and others (supra) has been relied upon to point out nature of power exercised by authority making reference of dispute under Section 10 of the Industrial Disputes Act. Perusal of this judgment reveals that it is administrative order and the appropriate Government is entitled to go into question whether industrial dispute exists or is apprehended. It is also clarified by the Hon'ble Apex Court that no lis is involved as such as that order is made on subjective satisfaction of Government. If any reason is given and it appears that appropriate Government took into account any irrelevant or foreign material, High Court may in given case, intervene in writ jurisdiction. 8. Here after the workman approached conciliation machinery, a reference was made to Central Government Industrial Tribunal under Section 10 of the Industrial Disputes Act by competent authority. Present appellant challenged that act of appropriate Government by filing Writ Petition No.678/2000 and urged that it was without subjective satisfaction. It appears that non-consideration of fact that respondent No.1 was not a workman, was pressed into service as an instance thereof. 9. It is no doubt true that while considering such petition in which correctness of decision to make reference is questioned, the emphasis is on finding out whether subjective satisfaction about existence of industrial dispute or otherwise is reached by the appropriate Government. 9. It is no doubt true that while considering such petition in which correctness of decision to make reference is questioned, the emphasis is on finding out whether subjective satisfaction about existence of industrial dispute or otherwise is reached by the appropriate Government. If it is found that there is no such subjective satisfaction or then the process itself is found to be faulty, High Court can intervene in the matter. If after proper application of mind, a reference is made, fact that reference has been made does not in any way derogate from the jurisdiction of Central Government Industrial Tribunal to find out whether person approaching it is covered under Section 2(s) of the Industrial Disputes Act or not. Thus merely because authority making reference finds that person approaching it is a workman and therefore, makes a reference under Section 10 of the Industrial Disputes Act, the Labour Court is not prohibited after parties adduce evidence, from holding otherwise. 10. However, in present fact when Writ Petition No.678/2000 was preferred, appellant had in paragraph 14 of that writ petition contended that it was necessary for authority making reference to ascertain whether respondent No.1 was workman or not. Failure to apply mind to this aspect of matter according to it, went to root of the controversy thereby ousting the jurisdiction of the machinery under the Industrial Disputes Act. In impugned judgment, learned Single Judge has quoted relevant extract in paragraph 15. Further consideration in impugned judgment in Writ Petition No.678/2000 reveals that parties elaborately addressed arguments to demonstrate that respondent No.1 was or was not workman. In Writ Petition No.678/2000 those arguments find place in paragraph No.27. That paragraph is reproduced by learned Single Judge in paragraph 21 of the impugned judgment. It is, therefore, obvious that the appellant while approaching this Court in Writ Petition No.678/2000 attempted to demonstrate that respondent No.1 was not a workman. It is this effort that is evaluated in judgment dated 06-07-2001 delivered in Writ Petition No.678/2000. Present appellant, therefore, expressly called for a finding on question of workman, perhaps then they hoped to succeed in proving that respondent No.1 is not a workman. It is obvious that had they succeeded at that juncture, objections as to content or nature of challenge in Writ Petition No.678/2000 would not have been raised by them. 11. Present appellant, therefore, expressly called for a finding on question of workman, perhaps then they hoped to succeed in proving that respondent No.1 is not a workman. It is obvious that had they succeeded at that juncture, objections as to content or nature of challenge in Writ Petition No.678/2000 would not have been raised by them. 11. The judgment dated 06-07-2001 in Writ Petition No.678/2000 negates all contentions of employer and upholds the act of making reference. The reference then proceeded further before the Central Government Industrial Tribunal. 12. When matter proceeding further, preliminary issue regarding status of respondent No.1 came to be framed at the instance of present appellant. Appellant, accordingly, started leading evidence and as noted supra, during cross-examination of third witness, respondent No.1 filed application and pointed out earlier adjudication dated 06-07-2001 in Writ Petition No.678/2000. 13. Having invited this Court in writ jurisdiction to pronounce upon nature of duties performed by respondent No.1, appellant/ employer cannot be permitted to urge that said finding reached by this Court must be overlooked or then must be understood as delivered in a narrower jurisdiction/limited jurisdiction. 14. Contention that respondent No.1 has raised objection of res judicata belatedly i.e. at the stage of cross-examination of third witness of appellant, is again without any merit. The adjudication already existed and workman has only pointed it out to Labour Court at that stage. He has, however, pointed it out before the Labour Court (CJIT) proceeded to hear the arguments after parties lead their evidence. Hence, it cannot be said that because of belated raising of such an objection any prejudice is suffered by present appellant. 15. The learned Single Judge has, therefore, correctly appreciated the controversy. We do not see any jurisdictional error or perversity. This letters patent appeal is, accordingly, dismissed. No costs.