Dwarka Prasad, J. -
(1.)THE argument advanced by the learned counsel for the appellant is that the Urban Improvement Trust, Bikaner is not an 'industry' and as such the question as to whether the termination of the services of the concerned employees amounted to retrenchment within the meaning of the Industrial Disputes Act. 1947 (hereinafter called 'the Act') did not arise. THE question as to whether the Urban Improvement Trust as a whole or any branch or unit thereof was not an industry was not raised by the appellant before the Industrial Tribunal, but the parties want to trial before the Industrial Tribunal on merits and after considering the material placed before it, the Industrial Tribunal No. 2, Rajasthan, Jaipur, passed an Award on December 3, 1975 holding that the provisions of Section 25-F of the Industrial Disputes Act were not complied with, while terminating the services of the concerned workmen, which amounted to retrenchment. Before the learned Single Judge, the questions that the Urban Improvement Trust, Bikaner was not an 'industry' and that the Industrial Tribunal had no jurisdiction to entertain the dispute were sought to be raised. THE learned Judge refused to allow the petitioner-appellant permission to raise these questions. It was observed by the learned Single Judge that:- "in my view, this question can only be agitated at the trial, because question of fact has to be gone into before a decision is taken whether particular organisation or undertaking is an industry within the meaning of the Industrial Disputes Act, 1947. Not having done so, it cannot be raised for the first time in writ application before this Court. "
(2.)WE express our concurrence with the aforesaid view taken by the learned Single Judge. Where the question arises as to whether a particular organisation or undertaking is an industry or not and whether any department, unit or branch of an undertaking is an industry, the matter has to be examined with reference to the facts of each case.
In the case of Bangalore Water Supply and Sewarage Board vs. A. Rajappa (1), their Lordships of the Supreme Court laid down that even in departments discharging sovereign functions, if there are units which are industries and they are substantially severable, they can be considered to come within Section 2 (j) of the Industrial Disputes Act. Thus, the learned Single Judge appears to be right in observing that the question of fact has to be raised and decided before the Tribunal as to whether the particular unit or department in which the workmen concerned were employed constituted 'industry', within the meaning of Section 2 (j) of the Act and as the question of jurisdiction was not raised before the Industrial Tribunal the facts relevant to such a question were placed on the record by the parties.
In this case, it cannot be denied that the appellant did not raise the question of non-existence of industrial dispute before the Industrial Tribunal. On the other hand, the appellant submitted itself to the jurisdiction of the Industrial Tribunal, gave a reply and went to trial in the hope of obtaining a favourable decision on the merits alleging that the termination of the services of the concerned employees did not amount to retrenchment and that the provisions of Section 25-F were not required to be complied with.
It was held by this Court in M/s. Nehru Motor Transport Cooperative Society Ltd. , Sardarpura, Jodhpur vs. The Deputy Registrar, Cooperative Societies, Jodhpur (2) that it is well settled that a question not raised before the Tribunal could not be taken for the first time in proceedings under Article 226 of the Constitution. It was observed in that case by A. P. Sen, J , as he then was, that in the matter of issue of a writ of Certiorari, the High Court exercises a special jurisdiction and that a question of jurisdiction cannot be allowed to be raised on a writ petition in a case where no objection to the jurisdiction was taken before the Tribunal or Authority whose order or proceedings were being challenged in the High Court. The learned Judge distinguished the decision in Badridas Kanhaiyalal vs. Appellate Tribunal of State Transport Authority, Rajasthan (3) relied upon by the learned counsel for the appellant before us.
The same view was also taken by their Lordships of the Supreme Court in Sohan Singh vs. The General Manager, Ordinance Factory, Jabalpur (4 ). In that case proceedings under Section 33-C (2) of the Industrial Disputes Act were taken before the Labour Court but the question was not raised that the Labour Court had no jurisdiction to entertain the application under Section 33-C (2) of the Act and the Labour Court proceeded to decide the matter on merits and gave certain directions for quantification of the claims of the workmen concerned. The High Court of Madhya Pradesh set aside the order of the Labour Court holding that the application under Section 33-C (2) was not entertainable by the Labour Court. On these facts, their Lordships of the Supreme Court observed as under:- "the High Court seems to have taken the view that the trial of such an issue was beyond the competence of the Labour Court; but it has rightly been pointed out on behalf of the appellants that instead of challenging the competence of the jurisdiction of the Labour Court to try issue No. 4, the respondents went to trial, submitted to the jurisdiction and when a decision was given against them by the Labour Court they, for the first time, challenged its jurisdiction to try that issue in the High Court. On the facts of this case, therefore, we are satisfied that the High Court ought not to have entertained the point of jurisdiction urged on behalf of the respondents and set aside the order of the Labour Court on that ground alone. "
(3.)WE are of the view that the appellant, having failed to raise the question of jurisdiction of the Industrial Tribunal before the concerned Tribunal and having submitted to its jurisdiction and having gone to trial before the Tribunal in the hope of obtaining a favourable decision from the Industrial Tribunal, has by its conduct disentitled itself from obtaining any relief from this Court under Article 226 of the Constitution. The Urban Improvement Trust, Bikaner submitted for the first time before the learned Single Judge that it was not an industry and the Industrial Tribunal had no jurisdiction to entertain a dispute relating to the termination of the employment of the concerned employees. The objection about the jurisdiction of the Tribunal should have been raised by the appellant before the Industrial Tribunal itself, instead of proceedings to obtain a judgment on merits from the Tribunal.
Learned counsel for the appellant relied upon a Full Bench decision of the Punjab & Haryana High Court in State of Punjab vs. Sh. Kuldip Singh (5 ). But in that case the question whether the Labour Court had no jurisdiction to entertain the reference was raised before the Labour Court itself and was subject matter of the issue raised before the Labour Court and as such the aforesaid decision has no application at all to the present case. Another decision relied upon by the learned counsel for the appellant was in the case of the United Commercial Bank Ltd. vs. Their Workmen (6) is also distinguishable in-as much as in that case the objection raised related to the constitution of the Tribunal which was apparent on the very face and no enquiry was required to be made to decide the question of jurisdiction. In that case their Lordships of the Supreme Court pointed out the distinction between the jurisdiction to decide matters and the embit of the matters to be heard by the Tribunal having jurisdiction to deal with the same. It was observed by their Lordships in that case that in the second class of cases, namely cases relating to the embit of matters to be heard by the Tribunal, the question of acquiescance may be considered or irregularity may be overlooked.
We, therefore, do not find any reason to interfere with the order passed by the learned Single Judge. The appeal has no force and the same is dismissed. .