w w w . L a w y e r S e r v i c e s . i n

Orissa Cotton Mills v/s Presiding Officer, Labour Court, BBSR & Others

    W.A. No. 166 of 2008, in OJC No.6382 of 2001

    Decided On, 21 October 2008

    At, High Court of Orissa


    For the Appellant: J.K. Tripathy, B.S. Tripathy, P.K. Chand, D. Satpathy, S. Mishra, P. Tripathy, M. Tripathy, Advocates. For the Respondent: S.S. Das, R. Das, Advocates.

Judgment Text


1. This appeal has been filed against the judgment of the learned Single Judge dated 5.8.2008 by which the learned Single Judge rejected the writ petition for issuing a direction to the Labour Court, Bhubaneswar to decide a issue as to whether the reference has been made by the proper Government as a preliminary issue observing that the Labour court should decide the matter as a whole and not piece meal.

2. The facts and circumstances giving rise to the case are that the reference under the provisions of Industrial Dispute act, 1947 (hereinafter called ‘the Act’) had been made vide order dated 20.11.1992.

The present appellant raised dispute in 1998 before the Labour Court, Bhubaneswar that the reference had been made by the State Government which was not the appropriate Government. It was the Central Government which was competent to make the reference. Therefore, the issue as to whether reference had been made by the appropriate Government should be decided as a preliminary issue. The application was rejected by the Labour Court vide order dated 17.8.1999 observing that all the issues involved therein would be decided together. Being aggrieved, the present appellant filed a writ petition challenging the said order which has been rejected by the learned Single Judge observing that all the issues should be decided together.

3. We have heard the learned counsel for the parties at length and perused the record.

4. Undoubtedly the Labour Court gets the jurisdiction from the reference and it is not like the Civil Court that any suit can be entertained. The Labour Court cannot go beyond the terms of reference nor it can travel beyond the pleadings and arrogate the power to raise issues which the parties to the reference are precluded to raise. The terms of reference determine the scope of its power and jurisdiction of the Labour Court from case to case. Whether certain points of dispute have been referred to the Industrial Tribunal for adjudication it may, while dealing with the said points, deal with matters incidental thereto. However, such power cannot be exercised by the Court/Tribunal so as to enlarge materially the scope of reference itself for the reason that the Court/Tribunal drives its jurisdiction from the order of reference passed by the appropriate Government. (Vide Hochtief Gammon Vs. Industrial Tribunal, Bhubaneshwar, Orissa & Ors., AIR 1964 SC 1746; Pottery Mazdoor Panchayat Vs. The Perfect Pottery Co. Ltd. and Anr., AIR 1979 SC 1356; and Mahendra L. Jain & Ors. Vs. Indore Development Authority & Ors., AIR 2005 SC 1252).

Therefore, if the reference itself is bad, the Labour Court loses its jurisdiction to adjudicate upon it.

5. The issue involved herein is no more res-integra. It has been considered by the Courts time and again. The Civil Court, in view of the provision contained in Order 14 Rule 2 of the Code of Civil Procedure (hereinafter called as ‘CPC’), after amendment in 1976, has been conferred a great deal of latitude in conducting the trial and decide the issues in any manner giving discretion to the Court to decide the preliminary issue first. However, the superior Court should not lightly interfere with that discretion, merely because the procedure adopted by the trial court does not suit to one of the parties unless it is demonstrated that such procedure is likely to result in injustice. (Vide Shyama Sundar Mohapatra Vs. Janaki Ballav Patnaik & Ors., 69 (1990) C.L.T. 18; and Baishnab Charan Ray Vs. Debraj Sahoo & Anr., 2003 (II) OLR 347).

6. However, it remains the discretion of the Court as the legislature in its wisdom has used the words 'it may try' in Rule 2 (2) of Order 14 are clearly indicates the fact that discretion is given to the court and no duty is cast upon the Court to decide any issue as a preliminary Issue.

7. In Maj. S.S. Khanna Vs. Brig. F.J. Dillon, AIR 1964 SC 497, the Supreme Court considered the issue regarding the maintainability of a Suit and held as under:

'Under O. 14 R. 2 of the Code, where issues, both of law and of facts, arise in the same Suit and the court is of the opinion that the case or any part thereof may be disposed of on the issue of law only, it shall try those issues first, and for that purpose, may, if it thinks fit, postpone the settlement of issues of facts until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of facts may be exercised only where in the opinion of the court, the whole Suit may be disposed of on the issues of law alone. But the Code confers no jurisdiction upon the court to try the Suit on mix issues of law and facts as preliminary issues. Normally, all the issues in a Suit should be tried by the court, not to do so, specially when the decision on issues even of law depends upon the decision of issues of facts will result in a lope-sided trial of the Suit.’’

8. In N.R. Govindarajan Vs. V.K. Rajagopalan & Ors., (2005) 12 SCC 362; and Ramesh B. Desai Vs. Bipin Vadi Lal Mehta, (2006) 5 SCC 638; and Balasaria Construction (P) Ltd. Vs. Hanuman Seva Trust, (2006) 5 SCC 658, the Supreme Court held that the mixed question of fact and law cannot be adjudicated upon under Order 14 Rule 2. In case a plea of limitation is taken, it cannot be decided under the said provision dehores the facts involved therein as in each and every case, the starting point of limitation has to be ascertained unless it is clearly made out that the petition was barred merely by bare perusal of the pleadings.

9. In Workmen of M/s Hindustan Lever Ltd. & Ors., Vs. Management of M/s. Hindustan Lever Ltd., AIR 1984 SC 516, the apex Court held that the Labour Court/Industrial Tribunal may as well frame preliminary issues if the point on which the parties are at variance, as reflected in the preliminary issues, would go to the root of the matter.

10. In S.K.Verma Vs. Mahesh Chandra & Anr., AIR 1984 SC 1462, the apex Court held that a preliminary issue should be decided while disposing of the entire matter, otherwise, the decision on preliminary issue would be challenged before the higher forum and the workman would be forced to wait for long. The employer may drag the litigation to a unreasonable period. The Court held as under :

' We do not expect them (employer) to attempt to avoid adjudication or to indulge in luxurious litigation and drag workmen from court to court merely to vindicate, not justice, but some rigid technical stand taken up by them. We hope that public sector corporation will henceforth refrain from raising needless objections, fighting needless litigations and adopting needless postures.'

11. Similar view has been reiterated by the apex Court D.P.Maheshwari Vs. Delhi Administration & Ors., AIR 1984 SC 153 by a larger Bench observing that 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 and it is better that tribunals, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardize industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. The apex Court further cautioned the High Court not to interfere in such matters in exercise of writ jurisdiction as it would amount to exploitation 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.

12. The case of D.P.Maheswari (supra) has been decided by the Bench consisting of three Hon’ble Judges while the cases in S.K. Verma (supra) and Workmen of M/s. Hindustan Lever Ltd. (supra) had been decided by two Hon’ble Judges.

13. There can be no dispute that the judgment of the larger Bench is binding. It is so required by judicial propriety and judicial discipline. (Vide Rameshwar Shaw Vs. Distt Magistrate Burdwan & Anr., AIR 1964 SC 334; Union of India & Anr Vs. K.S. Subramanian, AIR 1976 SC 2433; State of U.P. & Ors. Vs. Ram Chandra Trivedi, AIR 1976 SC 2547; Union of India & Anr Vs. Raghubir Singh (dead) by L.Rs. etc, AIR 1989 SC 1933; N. Meera Rani Vs. Govt of Tamil Nadu & Anr, AIR 1989 SC 2027; General Manager Telecom Vs. A. Srinivasa Rao & Ors, (1997) 8 SCC 767; Bharat Petroleum Corporation Ltd. Vs. Mumbai Shramik Sangh (2001) 4 SCC 448; N.S. Giri Vs. Corporation of City of Manglore & Ors., AIR 1999 SC 1958; Coir Board Ernakulam & Anr. Vs. Indira Devai P.S. & Ors., (2000) 1 SCC 224; Sub Inspector Roop Lal & Anr. Vs. Lt. Governor Delhi & Ors., AIR 2000 SC 594; Lily Thomas & Ors. Vs. Union of India & Ors, AIR 2000 SC 1650; S.H. Rangappa Vs. State of Karnataka & Ors., (2002) 1 SCC 538; P. Ramachandra Rao Vs. State of Karnataka (2002) 4 SCC 578; Union of India & Anr Vs. Hansoli Devi & Ors. (2002) 7 SCC 27-3; Babu Parasu Kaikadi (dead) by L.Rs. Vs. Babu (dead) by L.Rs., AIR 2004 SC 754; and Commissioner of Central Excise, Ahmedabad Vs. Orient Fabrics Pvt. Ltd., AIR 2004 SC 956).

14. A Constitution Bench of the Supreme Court in Central Board of Dawoodi Bohra Community & Anr Vs. State of Maharashtra & Anr (2005) 2 SCC 673 laid down similar guidelines in this regard.

15. A Division Bench of the Allahabad High Court in Indian Oil Corporation Ltd. Vs. State of U.P. & Ors, AIR 2004 All 277 has held that if the subsequent smaller Bench of the Supreme Court has referred to a larger Bench judgment of the Supreme Court, the subsequent judgment of the smaller Bench cannot be ignored. However, Court has to interpret the smaller Bench judgment in a manner so as to make it consistent with the larger Bench decision of the Supreme Court for the reason that smaller Bench cannot overrule the larger Bench.

16. A judgment is to be read and considered in the light of the questions which were before the Court. (Vide Mehboob Dawood Sheikh Vs. State of Maharashtra & Ors., (2004) 2 SCC 362).

17. In view of the above, the law can be summarised that judicial discipline and decorum determines that

Please Login To View The Full Judgment!

even in case there is a conflict of two judgments of the Supreme Court, the judgment rendered by the larger Bench is to be followed. However, in exceptional circumstances if the smaller bench decision is based on proper consideration of the larger Bench judgment the smaller Bench decision may be followed maintaining the consistency with the larger Bench. 18. Be that as it may, the matter is pending before the Labour Court since 1992. A period of 16 years is already over. The issues involved herein as to in what manner, the Tribunal must proceed. It is in the interest that the appeal should be disposed of directing the Labour Court to decide the entire case deciding all the issues at the earliest. 19. In view of the above, we dispose of the writ appeal requesting the learned Labour Court concerned to decide the whole controversy taking the issue of competence of the State Government to make reference also expeditiously, preferably within a period of six months from the date of filing of the certified copy of this order before the Labour Court. B. N. MAHAPATRA, J. I agree. Appeal disposed of.