The Chairman & Managing v. The Presiding Officer
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.06.2016
CORAM
THE HONOURABLE MR. JUSTICE N.KIRUBAKARAN W.P. No. 18052 of 2016 & W.M.P. No. 15836 of 2016 The Chairman & Managing Director Indian Bank, Corporate Office, 264, Avvai Shanmugam Salai, Royapettah, Chennai - 600 014.
..Petitioner Vs.
1.
The Presiding Officer, Central Government Industrial Tribunal cum Labour Court, First Floor, 'B' Wing, 26, Haddows Road, Shastri Bhawan, Chennai - 600 006.
The President, Indian Bank Employees Federation (BEFI), Having office at 17, Ameerjan Street, Choolaimedu, Chennai - 600 014.
..Respondents Prayer:
Petition under Article 226 of the Constitution of India praying for issue of a Writ of Certiorari to call for the records pertaining to the order dated 21.04.2016 made in I.A. No. 100 of 2016 in I.D.No. 67 of 2015 on the files of the 1st respondent and quash the same.
For Petitioner ::
Mrs. Rita Chandrasekaran for M/s. Aiyar & Dolia For Respondents::
Mr. Balan Haridas for R2
O R D E R
The petitioner Management has come before this Court challenging the order passed in I.A. No. 100 of 2016 in I.D.No.
67 of 2015 by the 1st respondent Industrial Tribunal, dismissing the said petition taken out by the petitioner to decide as to whether any adjudication is maintainable over the strike notice under Industrial Disputes Act, 1947 and/or whether the strike notice issued by any Union raising certain demands can be entertained for any adjudication under the Industrial Disputes Act, 1947 as a preliminary issue.
The 2nd respondent served notice of strike dated 28.06.2012 proposing to go on All India strike on 20.07.2012 and in that behalf, submitted a Charter of Demands. On 12.07.2012, the Assistant Labour Commissioner(C) issued a notice calling upon the parties to participate in the conciliation meeting to be held on 18.07.2012. In the conciliation meeting held on 18.07.2012, it was represented on behalf of the petitioner Bank that the demands contained in the strike notice were already discussed with the majority union. However, after conciliation, the meeting was postponed to 03.08.2012. On 01.08.2012, the petitioner Bank submitted its reply to the Conciliation Notice dated 12.07.2012.
In the said reply letter, it was stated that the charter of demands made by the 2nd respondent were discussed with majority union pursuant to their strike notice dated 26.03.2012 and that after mutual discussion, the majority union withdrew the strike notice. It was further stated that in view of the withdrawal of strike notice by the majority union, the issue stood closed and therefore, the strike notice is not maintainable. However, the Assistant Labour Commissioner held conciliation talks and the same ended in failure. Failure report was submitted by the Assistant Labour Commisisoner on 23.03.2015 and the same was forwarded to the Secretary to Government, Ministry of Labour and Employment. Pursuant thereto, the dispute was referred by the Ministry of Labour and Employment to the 1st respondent vide reference dated 13.05.2015. 3.
The dispute was taken up by the 1st respondent as I.D. No. 67 of 2015. A detailed counter statement with relevant documents was filed by the petitioner Bank on 09.12.2015 contending that the dispute is, per se, not maintainable since the issue relating to the charter of demands had been settled after holding discussion with the recognised majority union. It was also stated therein that there can only be conciliation and not adjudication over the strike notice issued by an Employoees' Union under the provisions of Industrial Disputes Act and that the reference made by the Government is an error apparent in law and that the reference is beyond the scope of the Industrial Disputes Act, 1947. Thereafter, the 2nd respondent had examined WW1 by filing proof affidavit and also by filing documents and additional documents. At this juncture, pending consideration of I.D. No. 67 of 2015, I.A. No. 100 of 2016 was filed on
behalf of the petitioner Bank on 05.04.2016 before the 1st respondent to take up the preliminary issue as to whether any adjudication is maintainable over the strike notice under Industrial Disputes Act and/or whether the strike notice issued by any Union raising certain demands can be entertained for any adjudication under the Industrial Disputes Act. The 2nd respondent filed its counter in the said I.A. on 11.04.2016. On 21.04.2016, the 1st respondent passed an order to the effect that the preliminary issue will be considered along with the main issue. Aggrieved by the said order, the present writ petition has been filed by the petitioner Bank.
4.
Learned counsel for the petitioner would submit that the issue raised in I.A. No. 100 of 2016 has to be decided as a preliminary issue as the majority union had withdrawn the strike notice, pursuant to mutual discussions held and the issue stood closed. According to the learned counsel, the minority union is unnecessarily prolonging the issue. Therefore, the strike notice issued by the minority union raising certain demands cannot be entertained for adjudication under the Industrial Disputes Act, 1947.
5.
On the other hand, Mr. Balan Haridas, learned counsel appearing for the 2nd respondent would rely upon a judgment dated 12.02.2008, rendered by a Division Bench of this Court in W.A. No. 128 of 2008, in the case of The Management of Addison & Company Limited V. The Presiding Officer, II Additional Labour Court, Chennai and 44 others, wherein the Division Bench of this Court, placing reliance upon the judgment of the Honourable Supreme Court rendered in D.P. Maheswari V. Delhi Administration, 1983 (2) LLJ 425, held that the preliminary issue of jurisdiction need not decided at that stage and the Labour Court can proceed with the hearing of the matter and decided all the issues together. Therefore, the learned counsel seeks dismissal of the writ petition.
6.
Heard Mrs. Rita Chandrasekaran, learned counsel for the petitioner and Mr.Balan Haridas, learned counsel for the 2nd respondent.
7.
It is true that the Division Bench of this Court, relying upon the judgment of the Honourable Apex Court, has stated that all the issues can be decided at the final stage. Once an issue is taken up as a preliminary issue, the very nomenclature says that it is a preliminary issue and without going through the enquiry or trial, it is expected to decide the issue before the trial. If the preliminary issue is decided in favour of the original petitioner, then only the proceedings can be taken to the next step. Thus, unnecessary enquiry/trial can
be avoided. In any event, in this case, the proof affidavit was filed by the 2nd respondent Union and the counter affidavit was filed by the petitioner in 2015 itself and when the matter was posted for cross-examination of the 2nd respondent in February, 2016, the petitioner merrily filed I.A. No. 100 of 2016 on 5th April, 2016. This is nothing but an attempt, on the part of the petitioner, to prolong the matter. If the petitioner Management is so serious about jurisdiction, then, they should have been vigilant enough to file a petition, in regard thereto, even before filing their counter statement. Therefore, it is too late in the day, for the petitioner to raise a preliminary issue at this stage. This Court finds no reason to interfere with the impugned order passed by the 1st respondent Tribunal.
Hence, the writ petition fails and the same is dismissed. The 1st respondent is directed to dispose of I.D. No. 67 of 2015 within a period of three months from the date of receipt of a copy of this order. No costs. Connected W.M.P. is closed. Sd/- Assistant Registrar(CS VII) //True Copy// Sub Assistant Registrar nv To 1.
The Presiding Officer, Central Government Industrial Tribunal cum Labour Court, First Floor, 'B' Wing, 26, Haddows Road, Shastri Bhawan, Chennai - 600 006.
The President, Indian Bank Employees Federation (BEFI), Having office at 17, Ameerjan Street, Choolaimedu, Chennai - 600 014.
W.P. No. 18052 of 2016 gj co kra 26.07.2016