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PETITIONER: D.P. MAHESHWARI

       Vs.

RESPONDENT: DELHI ADMN. & ORS.

DATE OF JUDGMENT14/09/1983

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) DESAI, D.A. VARADARAJAN, A. (J)

CITATION:  1984 AIR  153            1983 SCR  (3) 949  1983 SCC  (4) 293        1983 SCALE  (2)313  CITATOR INFO :  R          1984 SC1164  (20)  R          1984 SC1683  (1)  D          1988 SC 329  (7,15)

ACT:      Industrial Disputes  Act-Adjudication of  disputes-Duty of  Tribunals   and  Courts   while   deciding   Preliminary Questions.      Constitution  of  India-Arts.  226  and  136-Nature  of jurisdiction-Courts not  to be  too astute to interfere with exercise   of   jurisdiction   by   Special   tribunals   at interlocutory stages and on preliminary issues.

HEADNOTE:      An industrial  dispute concerning  the  termination  of services  of   the  appellant   in  1969  was  referred  for adjudication by the Labour Court under ss. 10 (1) (c) and 12 (5) of  the Industrial  Disputes Act  in the  year 1970. The Management  of   the  company   in  which  he  was  employed questioned the  reference itself  by filing a petition under Art. 226  and when  it was rejected, the Management raised a preliminary contention  before the  Labour  Court  that  the appellant was  not a  ’workman’ and  therefore the reference was incompetent.  The Labour  Court, after  a  detailed  and careful examination  of the  oral and  documentary  evidence produced by  both the  appellant and  the Management came to the conclusion that the appellant was a ’workman’ under s. 2 (s) of  the Act  as he  was  employed  mainly  for  clerical duties. This  finding was  challenged by the Management once again by filing a petition under Art. 226 and a Single Judge of the  High Court allowed the same and quashed the order of the Labour  Court as  well as  the  reference  made  by  the Government. On his appeal having been rejected by a Division Bench of the High Court, the appellant approached this Court under Art. 136.      Allowing the appeal, ^      HELD: The  nature of  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

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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. [951 G-H]      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. Tribunals and Courts who are requested to decide preliminary questions must 950 ask themselves  whether such  threshold part-adjudication is really necessary  and whether  it will  not  lead  to  other woeful consequences.  There was  a time  when it was thought prudent and wise to decide preliminary issues first. But the time appears  to have arrived for a reversal of that policy. 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 Art. 226 stop proceedings before  a Tribunal  so that a preliminary issues may be decided by them. Neither the jurisdiction of the High Court under  Art. 226  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. Articles 226 and 136 are not  meant to be used to break the resistance of workmen in this fashion. [951 F, C-D]      The instant  case relates  to a  dispute originating in 1969 and referred for adjudication in 1970 which is still at the stage of decision of a preliminary objection. The Labour Court considered the entire evidence and recorded a positive finding that  appellant who  was  discharging  duties  of  a clerical nature  was a  ’workman’. The  Single Judge  of the High Court  did not refer to a single item of evidence while reversing the  finding of  the Labour  Court. He appeared to differ from  the Labour  Court on  a question of fact on the basis of  a generalisation  without  reference  to  specific evidence. The  Division Bench which affirmed the judgment of the Single  Judge also read the judgment of the Labour Court in a  similar unfair fashion and did not consider any of the evidence  considered   by   the   Labour   Court   and   yet characterised  the   conclusion  of   the  Labour  Court  as perverse. No appellate Court is entitled to do that less so, a Court exercising supervisory jurisdiction.                               [951 C, 953 B, 954 C-D, 955 C]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 3844 of 1983.      Appeal by  Special leave  from the  Judgment and  Order dated the  25th July, 1980 of the Delhi High Court in L.P.A. No. 89 of 1976.      A.K. Gupta for the Appellant.      G.B.  Pai,   S.N.  Bhandari   and  Ashok   Grover   for Respondent. No. 3.      R.N. Poddar for Respondent No. 1.      The Judgment of the Court was delivered by 951

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    CHINNAPPA REDDY,  J. 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 their jurisdiction under Art. 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 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  part-adjudication 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 journeyings  up and  down. It  is also  worth   while  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. 952      Having sermonised  this much,  we may  now  proceed  to state the  facts which  provoked the  sermon. The  appellant D.P. Maheshwari  was an  employee of Toshniwal Brothers Pvt. Ltd., when  his services  were terminated  with effect  from 28th July  1969. He  raised an industrial dispute and on 3rd July 1970 the Lt. Governor of Delhi referred the dispute for adjudication to  the Additional  Labour  Court  Delhi  under sections 10(1)(c)  and 12(5) of the Industrial Disputes Act. The dispute  referred for  adjudication to  the Labour Court was, "Whether  the termination  of  services  of  Shri  D.P. Maheshwari is  illegal and/or  unjustified and if so to what relief is  he entitled  and what directions are necessary in this respect  ?" The  Management straightaway questioned the reference by  filing Writ  petition No.  159 of  1972 in the Delhi High  Court. The  writ petition  was dismissed on 22nd

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May 1972.  Thereafter the  management raised  a  preliminary contention before  the Labour Court that D.P. Maheshwari was not a  ’workman’ within  the meaning  of Section 2(s) of the Industrial Disputes  Act and  the  reference  was  therefore incompetent. The  Labour Court  tried the  question  whether D.P. Maheshwari  was a workman as defined in Section 2(s) of the Industrial  Disputes Act  as a  preliminary issue.  Both parties  adduced   oral  and   documentary  evidence.  After referring to  the evidence  of the  employee’s witnesses the Labour Court  said, "Thus  according to  the evidence of the claimant’s witnesses  the claimant  was employed  mainly for clerical duties  and he  did discharge the same." The Labour Court  then  referred  to  the  evidence  of  the  witnesses examined by the management and said, "Thus the said evidence falls far  short of  proving that  the claimant  was in fact discharging mainly  Administrative of  supervisory  duties." The Labour  Court then  proceeded to  refer to the documents produced by the management and observed, "Thus the documents filed by  the respondent  do not  go to  show that  the real nature  of   the  duties  discharged  by  the  claimant  was supervisory or  administrative in  nature." The Labour Court next referred  to what  it considered  to be an admission on the part  of the  management who  had classified  all  their employees into  three separate  classes A,  B and C, Class-A described as ’Managerial’ Class-B described as ’Supervisory’ and Class-C  described as  ’Other Staff’.  The name  of D.P. Maheshwari was  shown in Class-C. After reviewing the entire evidence the  Labour Court  finally recorded  the  following finding:           "From the  above discussion,  it is clear that the      claimant’s evidence shows that he was doing mainly 953      clerical  work   of   maintaining   certain   registers      preparing drafts  and  seeking  instructions  from  the      superiors and respondents’ lawyers during the period of      his services  though  designated  Accounts  Officer  or      officer in  special  duty  or  store  purchase  officer      .......................................................      .......................................................      As a  result, in  my opinion it has to be held that the      nature of  the main  duties  being  discharged  by  the      claimant  was   clerical   and   not   supervisory   or      administrative  despite  his  designation  as  officer.      Accordingly, he  has to  be held  to be a workman under      section 2(s) of the Industrial Dispute Act."      The management  was dissatisfied  with the  decision of the Labour  Court on the preliminary issue. So, they invoked the High  Court’s extra-ordinary jurisdiction under Art. 226 of the  Constitution. A  learned single  judge of  the  High Court, by his judgment dated 12th July 1976 allowed the Writ Petition and  quashed the  order of the Labour Court and the reference made  by the  Government. A  Division Bench of the High Court affirmed the decision of the Single Judge on 25th July 1980.  The matter  is now  before us at the instance of the workman  who obtained special leave to appeal under Art. 136 on  4th April  1983. The  services of  the workman  were terminated on  28th July  1969. A year later the dispute was referred to  the Labour  Court  for  adjudication.  Thirteen years thereafter  the  matter  is  still  at  the  stage  of decision on  a preliminary  question. In  our view,  further comment is needless.      Shri A.K.  Gupta, the learned counsel for the appellant submitted that  the High Court literally exercised appellate powers and  recorded findings  of fact  differing from those recorded by  the Labour  Court and  this, he complained, had

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been done  by an  unfair reading  of the order of the Labour Court and without the High Court itself considering a single item of  evidence  or  document.  We  are  afraid  there  is considerable force in Shri Gupta’s criticism.      Curiously enough,  the Learned Single Judge of the High Court affirmed  the finding  of the  Labour Court  that D.P. Maheshwari was  not employed  in a  supervisory capacity. He said,           "In the  face of  this material  and the  admitted      hypothesis the conclusion that the respondent was not 954      mainly employed  in a supervisory capacity is certainly      a possible  conclusion that  may be  arrived at  by any      Tribunal duly instructed in the law as to the manner in      which the  status of  an employee may be determined. It      is, therefore,  not possible  for this Court to disturb      such a conclusion having regard to the limited admit of      review of the impugned order." Having so held, the Learned Single Judge went on to consider whether the  workman was  discharging duties  of a  clerical nature. He found that it would be difficult to say that D.P. Maheswari was  discharging ’routine  duties  of  a  clerical nature  which   did  not  involve  initiative,  imagination, creativity and  a limited  power  of  self  direction.’  The Learned Single  Judge did  not refer  to a  single  item  of evidence in support of the conclusions thus recorded by him. He appeared to differ from the Labour Court on a question of fact on  the basis  of a generalisation without reference to specific evidence.  No appellate  court is  entitled  to  do that, less  so, a court exercising supervisory jurisdiction. Referring to  the finding  of  the  Labour  Court  that  the workman was  discharging mainly  clerical duties the Learned Single Judge  observed, "It  is erroneous to presume, as was apparently done  by the Additional Labour Court, that merely because  the   respondent  did   not  perform  substantially supervisory  functions,  he  must  belong  to  the  clerical category." This  was an unfair reading of the Labour Court’s judgment. We have earlier extracted the relevant findings of the Labour  Court. The  Labour Court not only found that the workman was  not performing  supervisory functions  but also expressly found that the workman was discharging duties of a clerical nature.  The  Division  Bench  which  affirmed  the judgment of  the Learned Single Judge also read the judgment of  the  Labour  Court  in  a  similar  unfair  fashion  and observed." It  is no  doubt true  that the Labour Court held that the  appellant’s evidence  showed  that  he  was  doing mainly clerical  work. As  we read  the order  as a whole it appears that in arriving at this conclusion the Labour Court was greatly  influenced by  the fact  that the appellant was not employed  in a  supervisory capacity."  We have  already pointed out  that the  Labour Court  did not  infer that the appellant was  discharging duties  of a clerical nature from the  mere   circumstance  that   he  was   not   discharging supervisory  functions.  The  Labour  Court  considered  the entire evidence  and recorded  a positive  finding that  the appellant was 955 discharging duties  of a  clerical nature.  The finding  was distinct  from  the  finding  that  the  appellant  was  not discharging supervisory  function as claimed by the company. We would  further like to add that the circumstance that the appellant was  not  discharging  supervisory  functions  was itself a  very strong  circumstance from  which it  could be legitimately inferred  that he  was discharging  duties of a clerical nature.  If the  Labour Court  had  drawn  such  an

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inference it  would have  been well  justified in  doing so. But, as  we said,  the Labour  Court considered  the  entire evidence and  recorded a  positive finding  that the workman was discharging  duties of  a clerical  nature. The Division Bench, we  are sorry  to say,  did not  consider any  of the evidence  considered   by   the   Labour   Court   and   yet characterised  the   conclusion  of   the  Labour  Court  as perverse.  The   only  evidence  which  the  Division  Bench considered was  that of  M.W.I.Shri K.K. Sabharwal and under the impression  that the Labour Court had not considered the evidence of  K.K. Sabharwal,  the Division  Bench  observed. "The non-reference to the said evidence while discussing the point in  issue, would  clearly vitiate  the  order  to  the Labour Court."  This was  again incorrect since we find that the Labour Court did consider the evidence of M.W.I fully.      Shri G.B.  Pai, Learned  Counsel for  the company, drew our attention  to the  qualifications of  the appellant  and certain letters  written by him to the Managing Director and argued that  the qualifications  and the  letters  indicated that the appellant was discharging duties, not of a clerical nature but  those of  a  senior  executive  closely  in  the confidence of  the Managing Director. We are enable to agree with Mr.  Pai. First,  we are  not prepared to go behind the finding of  fact  arrived  at  by  the  Labour  Court  which certainly was  based on relevant evidence and next, all that we can  say from  the qualifications and the letters is that the appellant  was  occasionally  deputed  by  the  Managing Director to  undertake some important missions. The question is what  were  his  main  duties  and  not  whether  he  was occasionally entrusted  with other  work. On  that question, the clear  finding of the Labour Court is that he was mainly discharging duties of a clerical nature.      We are  clearly of  the opinion that the High Court was totally unjustified  in interfering  with the  order of  the Labour Court  under Art.  226 of  the Constitution.  We  set aside the  judgments of  the Learned  Single Judge  and  the Division Bench of the Delhi High 956 Court, restore  the order of the Additional Labour Court and direct  the  Additional  Labour  Court  to  dispose  of  the reference within  a period  of three months from the date of communication of this order to that Court. That appellant is entitled to  his costs  which we  stipulate at  Rupees  five thousand. H.L.C.                                       Appeal allowed. 957