Shakilur Rahman v. Management of Commonwealth War Graves Commission, Delhi War Commentary

1. The present Petition has been filed seeking to challenge an order dated 11.12.2023 passed by the learned Labour Court wherein the learned Labour Court has held that issue No.1 which is whether the Claimant is a workman or not has been defined under Section 2(s) of the Industrial Disputes Act, 1947 [hereinafter referred to as “ID Act”], should be taken as a preliminary issue.

2 It is the contention of the Petitioner that the issue pertaining to the Petitioner being a workman cannot be considered as a preliminary issue and their cannot be a piecemeal adjudication under the Industrial Disputes Act, 1947, [hereinafter referred to as “ID Act”] as the same being a special legislation, cannot be equated to the procedure as given under the Code of Civil Procedure.

3. The limited grievance of the Petitioner is that it is a settled law that the adjudication before the learned Labour Courts should be done in a comprehensive manner so as not to further exploit 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 the decision on issues more vital to them.

4. Learned Counsel for the Petitioner has made two submissions. He submits that the terms of reference were set out by an order dated 25.08.2022 issued by the Office of the Deputy Labour Commissioner (South-West), and the adjudication was required to be done by the learned Labour Court upon those terms of reference. He seeks to reply upon the terms of reference which were set out in the order dated 25.08.2022 which are extracted below: “Whether Mr. Shakilur Rahman S/o Sh. Latifur Rahman Tamanna, (Aged – 40 Years), Mobile No. 88261994[1], Aadhar Card – 432526170094, is workman as defined u/s 2(s) of the Industrial Disputes Act; and if so.” “Whether the services of the workman Mr. Shakilur Rahman S/o Sh. Latifur Rahman Tamanna, have been terminated by the management vide letter dated 29/01/2020 illegally and/or unjustifiably; and if so, to what relief is he entitled and what directions are necessary in this respect?”

5. In addition, it is contended that so far as concerns the aspect of the preliminary inquiry being fair or not, issue No.2 has been correctly framed by the learned Labour Court and the same would have to be decided by the learned Labour Court in the first instance.

6. Learned Counsel for the Respondent on the other hand contends that the issue as to whether the Claimant is a workman as defined under Section 2(s) of the ID Act, is necessary to be adjudicated upon priorly and was thus framed as a preliminary issue by the learned Labour Court. He submits that only once a prima facie finding is given on this aspect of the matter, the matter can be allowed to proceed further.

7. This Court is unable to agree with the contentions of the learned Counsel for the Respondent.

8. The Supreme Court has in the case of D.P. Maheshwari v. Delhi Administration and Others[1] examined this aspect as to whether or not it was prudent to decide the preliminary issues first. The Supreme Court speaking through Hon’ble Mr. Justice (Retired) O. Chinnappa Reddy in the judgment of D.P. Maheshwari case has held that although it was wise and prudent to do so, however given the fact that dealing with issues in a piecemeal manner may prejudice and delay adjudication of industrial disputes, and it would be prudent to decide all matters together. It is apposite to set out the relevant extract of the D.P. Maheshwari case in this behalf: “It was just the other day [ See (1983) 4 SCC 214] 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 Article 226 of the Constitution and to this Court under Article 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 their jurisdiction under Article 226 of the Constitution stop proceedings before a tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the High Court under Article 226 of the Constitution nor the jurisdiction of this Court under Article 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. Article 226 and Article 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 Article 226 is supervisory and not appellate while that under Article 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.” [Emphasis supplied]

9. A similar view has also been taken by two Coordinate Benches of this Court in Hongkong and Shanghai Banking Corporation Ltd. v. Govt. of India and Ors.[2] as well as in Ram Avtar v. Delhi Flour Mills Co. Ltd.[3] 9.[1] The Coordinate Bench in the Hongkong and Shanghai Banking Corporation Ltd. case while relying on the judgment in the D.P. Maheshwari case, has held that all the issues should be decided at the same time without trying some of them as preliminary issues. The relevant extract of the Hongkong and Shanghai Banking Corporation Ltd. case is below: “28… (vi) It is better that Tribunals, particularly, those entrusted with the MANU/DE/1397/2008 2007 SCC OnLine Del 1504 task of adjudicating labour disputes where delay may lead to misery and jeopardize 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 exercise of their jurisdiction under Article 226 of the Constitution of India, stop proceedings before a Tribunal so that a preliminary issue may be decided by them.” [Emphasis Supplied]

9.2. The Coordinate Bench in the Ram Avtar case has gone to the extent of saying that whether the question that a Claimant/Petitioner is a workman or not, would be a mixed question of fact and law which would require to lead evidence. It has been held that this aspect cannot be adjudicated upon as a pure question of law. The relevant extract of Ram Avtar case is below: “19. Thus, it cannot be said that there is any conflict between the judgments of the Supreme Court in the cases of D.P. Maheshwari (supra) and Hussun Mithu Mhasvadkar (supra) as contended by the parties nor can it be said that the judgment rendered in the case of Hussun Mithu Mhasvadkar (supra) would be per incuriam in the light of the law laid down by the Supreme Court in the case of D.P. Maheshwari (supra) for the reason that the judgment in the case of Hussun Mithu Mhasvadkar (supra) was rendered in the peculiar facts and circumstances of the said case wherein the Supreme Court was confronted with a case where the Labour Court was called upon to adjudicate both the issues, one relating to the appellant therein being a ‘workman’ or not and the other relating to the respondent/management being an ‘industry’ or not, under the Act. In such circumstances, it was observed by the Supreme Court that the limited issue of the appellant being a ‘workman’ or not, ought to have been addressed by the Labour Court in the first instance, instead of deciding the larger issue of the respondent being an ‘industry’ or not, for the simple reason that deciding the issue of the respondent/management being an ‘industry’ or not, had much larger ramifications. There is no such predicament which was faced by the Labour Court in the present case, more so, when the issue No. 3 with regard to the validity of the two enquiries had already been treated as a preliminary issue and decided against the respondent/management. Further, the issue as to whether the petitioner is a ‘workman’ or not cannot be said to be a pure question of law. The same is a mixed question of facts and law which would require leading of evidence by the parties and in such a situation where mixed issues of law and facts need to be decided, then instead of trying the same as a preliminary issue, the Labour Court ought to have proceeded to try all the issues and decide the industrial dispute itself.” [Emphasis Supplied] 9.[3] This Court is in agreement with the judgments passed by the Coordinate Benches and that of the Supreme Court, given the context in which these have been passed.

10. In ordinary civil litigation or commercial dispute, it may well be prudent for the Court to decide preliminary issues and indeed the Code of Civil Procedure, 1908 does provide for the same under Order XIV Rule 2, however given that the adjudication in an industrial dispute is governed by a special legislation and the dispute is of a different character prior to such an adjudication, it is necessary for terms of reference to be framed by the labour commissioner, and it is apposite that the terms of reference so framed are decided together by the learned Labour Court.

11. In view of the aforegoing discussion, the order dated 11.12.2023 to the extent of examining the issue of whether the Petitioner/Claimant is a workman as defined under Section 2(s) of the ID Act as a preliminary issue is set aside.

12. The matter is remanded to the learned Labour Court for adjudication of all issues afresh.

13. Learned Counsel for the parties submit that they will not take any unnecessary adjournments before the learned Trial Court. The parties are bound down by the statements made by the learned Counsel today.