Joymalya Bagchi, J. - (1.) THIS writ petition has been filed, inter alia, challenging the award dated 14.12.1999 passed in case no. VIII-130 of 1998 by the learned First Industrial Tribunal, West Bengal.
(2.) THE case of the petitioner is that he was appointed as a workman in the respondent no. 2's paper mill with effect from 2nd June, 1971 and his service was confirmed on and from 2nd June, 1972. THEreafter, the petitioner was appointed as Laboratory Assistant and worked in such capacity upto 1985. Subsequently, the company declared a lock out and the petitioner was rendered unemployed. When the company reopened under a new management and the petitioner continued as Laboratory Assistant with a new pay scale. THEreafter the designation of the petitioner was changed to Supervisor. It is the petitioner's case that although the designation of his post was that of a Supervisor he had no disciplinary control over any workman and had no independent right or authority to take any binding decision on behalf of the company. It is further the petitioner's case that during the course of his employment he was subject to an illegal disciplinary proceeding and dismissed from service. Over this, a reference was made for adjudication to the First Industrial Tribunal, West Bengal on the following issues : A. Whether the dismissal of Sri Ramen Chandra Ghosh from service w.e.f. 11.05.1996 by the management of M/s. Everest Paper Mills Pvt. Ltd. is justified? B. To what relief, if any, he is entitled to ? In the course of adjudication, the parties filed their respective pleadings. At the outset, the respondent company took a preliminary point as to the jurisdiction of the tribunal on the ground that the petitioner was not a workman under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the ID Act).The petitioner, on the other hand, prayed for interim relief. As the issue as to whether the petitioner was a workman or not under Section 2(s) of the ID Act went to the very root of the jurisdiction of the tribunal to decide the dispute on merits, the same was taken up for consideration first along with prayer for interim relief on behalf of the petitioner. Such procedure followed by the tribunal was accepted by the parties without demur. They adduced oral evidence and submitted written arguments over this preliminary issue. After consideration of the same, the tribunal by the impugned award declared that the petitioner was not a workman and hence there was no industrial dispute with the meaning of the ID Act and hence the tribunal had no jurisdiction to adjudicate the reference on merits and grant any relief including interim relief to the petitioner. Being aggrieved by such award, as aforesaid, the petitioner has filed the instant writ petition. Mr. Moitra, learned senior counsel appearing for the petitioner submitted that the procedure adopted by the tribunal was contrary to the consistent practice and the established law of the land. It was his submission that the tribunal erred in law in deciding the preliminary issue as to whether the petitioner was a workman or not instead of deciding the same along with other issues.
(3.) IN support of his contention he relied upon a decision of the Apex Court in the case of D.P. Maheshwari Vs. Delhi Admn. and others reported in AIR 1984 SC 153 and that of this Court in the case of The Secretary (Policy) Regional Director (Food) Employees Association Vs. Food Corporation of INdia and others reported in 2000 (2) CHN 518. He further submitted that the decision of the tribunal on merits on this preliminary issue was also contrary to the materials on record and the tribunal had illegally come to a finding that merely because the petitioner was given the designation 'Supervisor' he was not a workman under Section 2(s) of the ID Act. Mr. Moitra in support of such contention relied upon decisions of the Apex Court in the case of Hussan Mithu Mhasvadkar Vs. Bombay Iron and Steel Labour Board and another reported in AIR 2001 SC 3290 and in the case of Sharad Kumar Vs. Govt. of NCT of Delhi and others reported in 2002 (3) Supreme 283. Mr. Dasgupta, learned counsel appearing for the respondent company submitted that the procedure followed by the tribunal was justified and did not cause any prejudice to the petitioner since the preliminary issue went to the root of the jurisdiction of the tribunal, and the tribunal rightly decided such issue first since the same if answered against the workman the tribunal could not have gone into the matter on merits. He further submitted that the finding of the tribunal that the petitioner was not a workman was a well reasoned one and this Court cannot sit in appeal over such finding of the tribunal. In support of his contention he relied on cases reported in 1983 LAB.I.C. 1516 (Sadhu Ram Vs. Delhi Transport Corporation) and AIR 1965 SC 476 (Hukma Vs. The State of Rajastjan) I have heard the submissions of the parties and have considered the materials on record. I cannot agree with the submission of Mr. Moitra that the tribunal erred in law or acted contrary to the law declared by the Apex Court in the case of D.P. Maheshwari Vs. Delhi Admn. and others reported in AIR 1984 SC 153. In the said decision the Supreme Court had deprecated the practice of tribunals deciding preliminary issues instead of deciding all issues at one go in respect of industrial disputes since the former practice results in delay and leads to misery and jeopardizes industrial cases. Such declaration of law was made in the facts of that case wherein the preliminary issue was decided in favour of the workman holding that the tribunal had jurisdiction to decide the reference on merits and the same was challenged before the High Court under Article 226 of the Constitution. Such practice of challenging the issue decided in favour of the workman by the employer was deprecated by the Apex Court in the aforesaid manner. Similar view is expressed by a Division Bench of this Court in the other case relied by Mr. Moitra reported in 2000 (2) CHN 518 wherein the said Division Bench held that the writ court would be slow in exercising its jurisdiction against an order passed by the tribunal refusing to reject preliminary objection raised by the management. Hence the aforesaid decisions relied by Mr. Moitra were declared in the facts of those cases where the employer sought to protract the final adjudication on merits when the preliminary issue as to whether the employee was a workman or not had been decided in the latter's favour. Those cases are therefore clearly distinguishable on facts, as in the instant case, the question has been decided against the workman holding that the tribunal had no jurisdiction to decide the reference on merits.;