Per D.K. SETH, J. - (1.) A very interesting question has been raised by Mr. Partha Bhanja Chowdhury with regard to the jurisdiction of the Industrial Tribunal to hear preliminary issue going to the root of the jurisdiction at the outset or to decide such issues along with the merit as a rule.
(2.) In order to support his contention, Mr. Bhanja Chowdhury points out that the learned Tribunal has followed the decision in D.P. Maheshwari v. Delhi Administration & Ors. AIR 1984 SC 153 : 1983 (4) SCC 293 : 1983-II-LLJ-425, but he submits that the decision in D.P. Maheshwari (supra) has over looked the decision in Express Newspapers Ltd. v. Their Workers and Staff & Ors., AIR 1963 SC 569 : 1962-II-LLJ-227. He also points out that the decision in Hussain Mithu Mhasvadkar v. Bombay Iron & Steel Labour Board, AIR 2001 SC 3290 : 2001 (7) SCC 394 : 2001-II-LLJ-1520 also supports his contention, which has again directed hearing the preliminary issue at the outset. He also refers to Rule 20H of the West Bengal Industrial Disputes Rules, 1958, which in the proviso prescribes hearing of a preliminary point at the outset according to the discretion of the learned Tribunal.
(3.) Referring to the order that has been passed by the learned Tribunal, Mr. Bhanja Chowdhury points out that the learned Tribunal did not apply its mind to the present position and has not considered the decisions and fee law applicable on the question. Learned Tribunal cannot act mechanically. The decision given in D.P. Maheshwari (supra) has not laid down any ratio decidendi inasmuch as it was only a sermon that was preached at the beginning of the judgment, which has no binding effect and the decision in D.P. Maheshwari (supra) having been passed, overlooking the decision in Express Newspapers (supra), the decision is per incuriam. In any event, Rule 20H having been enacted through legislation, it has a force of law. The decision in D. P. Maheshwari (supra) having overlooked the effect of the statutory provision and being contrary thereto is per incuriam.;