# 10 S.C.R. 243 ). RAMESH CHAND~A SANKLA ETC v. VIKRAM CEMENT ETC

- **Citation:** [2008] 10 S.C.R. 243
- **Court:** Supreme Court of India
- **Decided:** 2008-07-08
- **Case number:** Civil Appeal No. 4223 of 2008
- **Bench:** C.K. Thakker, D.K. Jain
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/10-s-c-r-243-ramesh-chand-a-sankla-etc-v-vikram-cement-etc-23461
- **Pages:** 50

## Headnote

Madhya Pradesh Uchcha Nyayalya (Khand Nyayapeeth
ko Appeal) Adhiniyam 2005 - SS.2(1) & 31:Voluntary Retir~-
ment Scheme - Opted by employees - Benefit allegedly paid c
by Company - Some employees approaching Labour Court
for reinstatement on ground that they did not opt voluntarily
for retirement under the scheme - Labour Court directing
Company to file written statement to decide the case on merits - Challenge to - Dismissed by Industrial Tribunal - ComD
--(
pany praying Labour Court to frame certain additional issues
and hear them as preliminary issues - Additional issues
framed by Labour Court It, however held. Holding that it was
not appropriate to decide the issues as preliminary issues -
Rejected by the Tribunal- Challenge to - Dismissed by Single
E
Judge of High Court- Special Leave Petition - Dismissed by
Supreme Court in view of enactment of 2005 Act providing for
filing of intra court appeal - Filing of intra Court appeal by the
i
Company- Division Bench of High Court held that intra court
appeals not maintainable and directed employees in ques-
.~
~
tion to return benefit received by them to Company - Appeal F
filed by employees and cross appeal filed by Company- Held:
since order passed by Single Judge of High Court in exercise
of power of superintendence under Article 227 of the Constitution, intra Court appeal would not be competent- It is settled
law that all issues arising in a suit/proceeding should be tried G
together, hence Court below have not committed any error of
"
'f
jurisdiction in not deciding the issue as to maintainability of
petition as preliminary issue - Even in terms of amendment
made in CPC all the issues in a suit should be decided to243
H
244
SUPREME COURT REPORTS
[2008] 10 S.C.R.
>...
A gether - Petition pending before the Labour Court - Present
proceedings are against interlocutory orders - Under the circumstances Supreme Court refrained from entering into a/legations and counter a/legation - No infirmity found in the order of the Division Bench of the High Court - Hence, con-
/-
B firmed - Labour Court directed to consider the matter on mer-
~ ,,
its - Constitution of India, 1950 - Articles, 136, 226 and 227 -
Code of Civil Procedure, 1908 with amending Act, 1976 -
Service Law - Voluntary Retirement Scheme.
Withdrawal of writ petition and filing of fresh petitions by
>-
c Company - Effect of Held: Though in such cases, courts not
allowing the petitioner to reagitate the claim which was given
up by him earlier - However, in the instant case a composite
f ..
petition filed against several employees was withdrawn and
F
separate petitions were filed by the company as per direction
D of the Registry of the High Court - Moreover, another petition
).-
filed against an employee on the same issue was alive and
not withdrawn - It shows that there was no intention of the Company to give up the matter
E
Jurisdictional fact - Meaning of - Discussed.
,,
Jurisdiction of High Court under Article 226 and 227 of
the Constitution - Discussed.
Jurisdiction of Supreme Court - Article 136 - Scope of
p
"
- Discussed.
r-
"•
F
Respondent-Company introduced a Voluntary Retirement Scheme for its employees. The employees who
opted for voluntary retirement under the scheme have
been granted all the benefits by the Company under the
G scheme and also made payment against stamped receipts. However, some of the employees approached
Labour Court by invoking s.31 of the Madhya Pradesh
•
-.<_'
Industrial Relation Act,
1960 on the grounds they had not opted for voiun-
\.-
H tary retirement but they were forced to accept some
.,_
RAMESH CHANDRA SANKLA ETC. v. VIKRAM
245
CEMENT ETC.
amount. The Labour Court directed the Company to file A
written statement to decide the case on merits. The order was challenged by the Company before the Industrial Tribunal. The Tribunal dismissed the petition. The
Company then filed written statement before the Labour
Court requesting it to frame certain additional issues and
B
to hear them as

## Text

_Characters 0–39,882 of 102,264. This is a partial read: ask again with offset=39882 for what follows._

(2008) 10 S.C.R. 243
).
RAMESH CHAND~A SANKLA ETC.
A
V.
VIKRAM CEMENT ETC.
(Civil Appeal No. 4223 of 2008)
JULY 08, 2008
B
'
).,
J
[C.K. THAKKER AND D.K. JAIN, JJ.]
Madhya Pradesh Uchcha Nyayalya (Khand Nyayapeeth
ko Appeal) Adhiniyam 2005 - SS.2(1) & 31:Voluntary Retir~-
ment Scheme - Opted by employees - Benefit allegedly paid c
by Company - Some employees approaching Labour Court
for reinstatement on ground that they did not opt voluntarily
for retirement under the scheme - Labour Court directing
Company to file written statement to decide the case on merits - Challenge to - Dismissed by Industrial Tribunal - ComD
--(
pany praying Labour Court to frame certain additional issues
and hear them as preliminary issues - Additional issues
framed by Labour Court It, however held. Holding that it was
not appropriate to decide the issues as preliminary issues -
Rejected by the Tribunal- Challenge to - Dismissed by Single
E
Judge of High Court- Special Leave Petition - Dismissed by
Supreme Court in view of enactment of 2005 Act providing for
filing of intra court appeal - Filing of intra Court appeal by the
i
Company- Division Bench of High Court held that intra court
appeals not maintainable and directed employees in ques-
.~
~
tion to return benefit received by them to Company - Appeal F
filed by employees and cross appeal filed by Company- Held:
since order passed by Single Judge of High Court in exercise
of power of superintendence under Article 227 of the Constitution, intra Court appeal would not be competent- It is settled
law that all issues arising in a suit/proceeding should be tried G
together, hence Court below have not committed any error of
"
'f
jurisdiction in not deciding the issue as to maintainability of
petition as preliminary issue - Even in terms of amendment
made in CPC all the issues in a suit should be decided to243
H
244
SUPREME COURT REPORTS
[2008] 10 S.C.R.
>...
A gether - Petition pending before the Labour Court - Present
proceedings are against interlocutory orders - Under the circumstances Supreme Court refrained from entering into a/legations and counter a/legation - No infirmity found in the order of the Division Bench of the High Court - Hence, con-
/-
B firmed - Labour Court directed to consider the matter on mer-
~ ,,
its - Constitution of India, 1950 - Articles, 136, 226 and 227 -
Code of Civil Procedure, 1908 with amending Act, 1976 -
Service Law - Voluntary Retirement Scheme.
Withdrawal of writ petition and filing of fresh petitions by
>-
c Company - Effect of Held: Though in such cases, courts not
allowing the petitioner to reagitate the claim which was given
up by him earlier - However, in the instant case a composite
f ..
petition filed against several employees was withdrawn and
F
separate petitions were filed by the company as per direction
D of the Registry of the High Court - Moreover, another petition
).-
filed against an employee on the same issue was alive and
not withdrawn - It shows that there was no intention of the Company to give up the matter
E
Jurisdictional fact - Meaning of - Discussed.
,,
Jurisdiction of High Court under Article 226 and 227 of
the Constitution - Discussed.
Jurisdiction of Supreme Court - Article 136 - Scope of
p
"
- Discussed.
r-
"•
F
Respondent-Company introduced a Voluntary Retirement Scheme for its employees. The employees who
opted for voluntary retirement under the scheme have
been granted all the benefits by the Company under the
G scheme and also made payment against stamped receipts. However, some of the employees approached
Labour Court by invoking s.31 of the Madhya Pradesh
•
-.<_'
Industrial Relation Act,
1960 on the grounds they had not opted for voiun-
\.-
H tary retirement but they were forced to accept some
.,_
RAMESH CHANDRA SANKLA ETC. v. VIKRAM
245
CEMENT ETC.
amount. The Labour Court directed the Company to file A
written statement to decide the case on merits. The order was challenged by the Company before the Industrial Tribunal. The Tribunal dismissed the petition. The
Company then filed written statement before the Labour
Court requesting it to frame certain additional issues and
B
to hear them as preliminary issues. Though the Labour
Court framed the issues, it dismissed the prayer to decide the issues as preliminary issues without recording
evidence. Against the order of the Labour Court, the Company approached the Tribunal. The order of the Labour c
Court was affirmed by the Tribunal. Challenging the order of the Tribunal the Company filed a writ petition. The
petition was dismtssed by a the Single Judge of the High
Court. The Company filed Special Leave Petition before
the Supreme Court. In the meantime Madhya Pradesh 0
Nyayalaya(Khand Nyaya Peeth Ko Appeal) Adhiniyam,
2005 came into force providing for filing of intra court
appeal. This Court dismissed the Special Leave Petition
with liberty to the Company to approach the High Court
in terms of provisions under 2005 Act. The Company filed
E
an intra Court appeal before the High Court which was
dismissed by the Division Bench of the High Court directing the employees in question to return the benefit
received by them to· the Company subject to an undertaking by the company that in the event labour court allows the claim, the amount would be returned to employF
ees with interest@ 6% per annum. Against the order of
the Division Bench of the High Court a review petition
was filed by the employees. The petition WC'S dismissed
by the High Court. Hence the present appeals filed by the
employees and Cross appeal filed by the Company.
G
,.>
•
It was contended by the workmen that the order
passed by the Division Bench of the High Court was without jurisdiction so far as it directed the workmen to refund the amount received by them; that once the DiviH
246
SUPREME COURT REPORTS
[2008] 10 S .. C.R.
f·
J..
A
sion Bench of the High Court held that intra court appeals
were not maintainable, it has no power to pass any order
directing a party to do or not to do something; that once
it was the case of the workmen that they had not accepted
the scheme voluntarily, they were deemed to be contin-
~
ued in employment and they would be entitled to receive
,.
B
wages. But they were not even allowed to join duty and
to do work. No payment of wages had been made to them
by the Company. The Company, for that reason also, can- .
not ask for repayment of amount paid to them. At the most,
c the said amount can be adjusted towards payment of
t
wages; and that, the writ petition filed by the Company
was later withdrawn. No express liberty was granted by
I·
the High Court to file fresh petition on the same cause of
action. However, fresh petitions were filed by the ComD pany. Such petitions were not maintainable and ought not
to have been entertained by a Single Judge of the High
Court. They were barred by the doctrine of constructive
res judicata as also on the ground of abandonment of
claim.
E
It was submitted by the Company that the Division
Bench of the High Court was not right in not entertaining,
dealing with and deciding intra court appeals on the
ground _that such appeals were not maintainable; that the
Division Bench of the High Court was required to apply
)""
...
F
its mind independently and to consider the nature of controversy raised before the Single Judge. And if it finds
that the petition was that under Article 226 of the Constitution, the Division Bench was enjoined to entertain intra-court appeals and to decide them on merits that even
G if the Division Bench felt that the writ petitions were under both the Articles, viz. Article 226 and Article 227 of the
Constitution, as per settled law, no party can be deprived
~
""'~
of right of intra court appeal merely by referring Article
;
227 of the Constitution, over and above Article 226 of the
j:...
H
Constitution under which such right is available to the
RAMESH CHANDRA SANKLA ETC. v. VIKRAM
247
CEMENT ETC.
party; that an objection as to non-maintainability of writ A
petitions on the ground of constructive res judicatalabandonment of claim is not well-founded; that the Labour
Court, Industrial Court and the Single Judge of the High
Court were in error in not deciding the issue as to main-
~
tainability of claims as preliminary issue; that the schem.e B
was introduced by the Company, it was accepted by the
workmen and payment was made to them. Once these
facts are admitted, there remained no relationship of master and servant between the Company and the workmen;
that it is not even the case of the workmen that they have c
not been paid. In view of these facts, the Company was
right in requesting the Labour Court to decide that the
question whether claim petitions filed by the workmen,
were maintainable; that since the question was pure question of law, it did not require investigation of facts. The
D
issue, therefore .. ought to have been heard as preliminary
issue; that the fact whether the claimants were workmen
or not was a 'jurisdictional' fact. The Labour Court was
having 'limited jurisdiction' under the Act. It was, therefore, obligatory on the Labour Court to decide whether E
the jurisdictional or preliminary fact which could confer
jurisdiction on the court was present, by not doing so, it
had committed jurisdictional error which was required to
be corrected by the High Court in certiorari-jurisdiction.
.
But the High Court also committed the same error. Under
""(
the circumstances, this Court may interfere with the said
F
order by directing the Labour Court to decide the issues
as preliminary issues; and that even if intra court appeals
are held not maintainable, the Company is before this
Court under Article 136 of the Constitution, therefore, ap-·
propriate order may be made by the Court.
G
f.
Disposing of the appeals, the Court
Held: 1.1. Bare reading of sub-section (1) of Section
...
2 of the Madhya Pradesh Uchcha N.yayalaya(Khand
'
Nyayapeeth ko Appeal) Adhiniyam, 2005 Act, leaves no H
248
. SUPREME COURT REPORTS
[2008] 10 S.C.R.
A
room for doubt that if the order is passed by a Single
Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution, an intra court
appeal would lie. If, on the other hand, a Single Judge
exercises power of superintendence under Article 227 of
"'
'
B the Constitution, intra court appeal would not be competent. Precisely, this was the position under different Let'."
ters Patents. [Para 24,25,26] [265-E; G & H; 266-A]
1.2. On the facts and in the circumstances of the
present case, the petitions instituted by the Company and
c decided by a Single Judge of the High Court could not be
said to be original proceeding under Article 226 of the Constitution. This Court is clearly of the view that the Single
Judge had decided the petitions in exercise of power of
superintendence under Article 227 of the Constitution.
D [Para 33] [269·8,C & D]
Umaji Keshao Meshram & Ors. V Radhikabai,, Widow
of Anandrao Banapurkar & Anr., 1986 Supp SCC 401 relied
on .
E
. 1.3. No doubt that the Single Judge of the High Court
who dismissed the Writ petition, was exercising power of
superintendence over a Court/Tribunal subordinate to .it
under Article 227 of the Constitution. Obviously, a remedy of intra court appeal was not available. Hence, the
/
Division Bench of the High Court was right in coming to
r
F
the conclusion that intra court appeals filed by the Com- .·
pai:iy were not maintainable. No infirmity is found in that
part of the order. [Para 34] [269-G,H; 210:.A]
2.1. A question whether a petition
1is .barred by res
G ;udicata or under Rule 4 of Order XXlll of the Code is not a
'pure' question of law. It is a question of fact or at any rate,
~
a mixed question of law and fact. In absence of pleadings
and necessary materials in support of such plea, petitions
cannot be dismissed on the bald assertion by a party 'that
H they were not maintainable. [Para 36] [270-H; 271-A]
RAMESH CHANDRA SANKLA ETC. v. VIKRAM
249
J
CEMENT ETC.
2.2. It is open to the petitioner to withdraw a petition A
filed by him. Normally, a Court of Law would not prevent
him from withdrawing his petition. But if such withdrawal
is without the leave of the Court, it would mean that the
'
petitioner is not interested in prosecuting or continuing
)..
the proceedings and he abandons his claim. In such B
cases, obviously, public policy requires that he should
not start fresh round of litigation and the Court will not
allow him to re-agitate the claim which he himself had
given up earlier.[Para 50] [275-D & E]
Daryao v. State of U.P, (1962) 1SCR574, Sarguja Trans- c
port Service v. State Transport Appellate Tribunal, (1987) 1
SCC 5, A.K. Bhattacharya v. Union of India, 1991 Supp (2).
SCC 109, Murtujakhan v. Municipal Corpn. Of Ahmedabad,
(1975) 16 Guj LR 806, Bakhtawar Singh & Anr. v. Sada Kaur
& Anr., (1996) 11 SCC 167, KS. Bhoopathy & Ors. V Kokila D
& Ors., (2000) 5 SCC 458, Sarva Shramik Sangathan (KV)
and Mumbai v. State of Maharashtra & Ors., (2008) 1 SCC
494 referred to.
2.3. On the facts of the case, this Court is unable to E
uphold the argument on behalf of the workmen that the
Company did not want to prosecute the petitions and had
given up its claim against the order passed by the Labour
Court as confirmed by the Industrial Court. The record
•
"I
reveals that the Company filed one writ petition against
one employee which was registered as Writ Petition No. F
3060 of 2005. It also filed another petition against the remaining employees which was registered as Writ Petition
No. 3471 of 2005. Since the other petition was against
several employees, the Registry of the High Court raised
an objection that it was under 'defect'. It was, therefore, GI
1
not placed for admission-hearing. In the order, dated October 3, 2005, the High Court noted that the counsel for
the Company prayed for time "to remove the defects
pointed by the office". The prayer was granted. It also
appears that according to the Registry, there were practiH
250
SUPREME COURT REPORTS
[2008] 10 S.C.R.
)._
A
cal difficulties and logistic problems since the petition was
against more than 200 employees. The counsel for the
Company, therefore, on December 14, 2005, did not 'press'
the petition and petition was accordingly dismissed 'as
not pressed'. The said order was passed. on December
A
B 14; 2005. Immediately thereafter, in January, 2006, separate petitions were filed by the Company against the workmen. It is thus clear that it._ was not a case of abandon..:
ment or giving up of claim by the Company. But, in view
of office objection, practical difficulty and logistic probc lem, the petitioner Company did not proceed with an 'omnibus' and composite petition against several workmen
and filed separate petitions as suggested by the Registry
of the High Court.[Para 52] [276-C;D,E,F,G,H; 277-A]
2.4. There is an additional reason also for coming to·
D
this conclusion on the basis of which it can be said that
the Company was prosecuting the matter and there was
no intention to leave the matter. As Writ petition No. 3060
of 2005 which was filed against one employee was very
much alive and was never withdrawn/'not pressed'. If reE
ally the Companywanted to give up the claim, it would have
withdrawn that petition as well. [Para 53] [277-A,B & CJ
3.1. A 'jurisdictional fact' is one on existence of which
depends jurisdiction of a Court, Tribunal or an Authority. If
the jurisdictional fact does not exist, the Court or Tribunal
)r
~
F
cannot act. If an inferior Court or Tribunal wrongly assumes
the existence of such fact, a writ of certiorari lies. The underlying principle is that by erroneously assuming existence of jurisdictional fact, a subordinate. Court or an inferior Tribunal cannot confer upon itself jurisdiction which it
G
otherwise does not possess. [Para 55] [277-G,H; 278-A]
. 3.2. In the present case, it cannot be said that the
'~
Courts below have committed any error of jurisdiction in
not deciding the issue as to the maintainability of claimH petitions as preliminary issue. It is well settled that gener-
RAMESH CHANDRA SANKLA ETC. v. VIKRAM
251
)
CEMENT ETC.
ally, all issues arising in a suit or proceeding should be tried
A
together and a judgment should be pronounced on those
issues. The Law Commission also considered the question
and did not favour the tendency of deciding some issues
)t.
as preliminary issues. (Para 64 and 68] (281-A,B; 282-C]
Arun Kumar v. Union of India, (2007) 1 SCC 732; Carona
B
Ltd. v. Parvathi Swaminathan & Ors., (2007) 1 SCC 559; O.P
Maheshwari v. Delhi Administration, (1983) 4 SCC 293; S.K.
Verma v. Mahesh Chandra &Anr, (1983) 4 SCC 214; Tarakant
v. Puddomoney, (1866) 10 MIA 476 and Major S.S. Khanna c
v. Brigadiar FJ. Dillion, (1964) 4 SCR 409, referred to.
3.3. Provisions of the Civil Procedure Code, do not
stricto sensu apply to 'industrial adjudication', After the
AmendmentAct, 1976, amending the Code, the normal rule
~
is to decide all the issues together in a civil suit. In the case D
on hand, the contention of the workmen is that the acceptance of the Voluntary Retirement Scheme was not with
free consent, and even otherwise they were not given all
the benefits to which they were entitled under the scheme.
Therefore, they continued to remain employees of the ComE
pany. The Labour Court felt that the controversy raised by
the workmen can only be decided in the light of the evidence before it. The said decision has been confirmed by
the Industrial Court as well as by the Single Judge of the
High Court. This Court found no illegality in this approach
for interference under Article 136 of the Constitution. [Para
F
69] [282-F,G,H; 283-A & ~]
4. In the present appeals, this Court is not called
upon to consider the merits of the matter. The claim petitions are pending before the Labour Court. The present G
proceedings are against interlocutory orders. Any obser-
...
..,
vation, one way or the other, may cause prejudice to one
or the other party. This Court, therefore, refrains from entering into allegations and counter-allegations by granting liberty to both the parties to raise all contentions availH
252
SUPREME COURT REPORTS
[2008] 10 S.C.R.
A able in law. The Labour Court is directed to consider the
matter on merits and pass an appropriate order in consonance with law.[Para 72] [282-G,H; 282-A]
Kiran Singh v. Chaman Paswan, (1955) 1 SCR 117 and
Harshad Chiman Lal Modi v. DLF Universal Ltd. & Anr., (2005)
~ •
B 7 SCC 791 - referred to.
5.1. It is well settled that jurisdiction of High 9ourts
under Articles 226 and 227 is discretionary and equitable.
[Para 80] (289-A]
C
Jodhey v. State, AIR 1952 All 788 referred to
5.2. The power of superintendence under Article 227
of the Constitution conferred on every High Court over
all courts and tribunals throughout the territories in relaD tion to which it exercises jurisdiction is very wide ,and
~
discretionary in nature. It can be exercised ex debito justitiae, i.e. to meet the ends of justice. It is equitable in nature.
While exercising supervisory jurisdiction, High Court not
only acts as a court of law but also as a court of equity It is,
therefore, power and also the duty of the Court to ensure
E that power of superintendence must 'advance the ends of
justice and uproot injustice'. [Para 81] (287-D & E]
Jodhey v. State, AIR 1952 All 788 referred to
5.3. Powers under Articles 226 and 227 are discreF tionary and equitable and are required to be exercised in
the larger interest of justice. While granting relief in favour
of the applicant, the Court must take into account balancing interests and equities. It can mould relief considering
the facts of the case. It can pass an appropriate order
G which justice may demand and equities may project. [Para
89] [291-A & B]
•
Roshan Deen vs. Preeti Lal, (2002) 1 SCC 100; Gadde
Venkateswara Rao v. Government of Andhra Pradesh & Ors.,
H (1966) 2 SCR 172, Commissioner of Income Tax, Madras v.
·~
RAMESH CHANDRA SANKLA ETC. v. VIKRAM
253
CEMENT ETC.
Vinod Kumar Didwania, AIR 1987 SC 1260, Chief Settlement A
Commissioners v. Ram Singh, (1987) 1 SCC 612,
Mohammad Swalleh v. Third Additonal District Judge, Meerut,
(1988) 1 SCC 40 and Shangrilla Food Products Ltd. v. Life
Insurance Corporation of India, (1996) 5 SCC 54 relied on.
6. In the considered opinion of this Court, taking into B
account facts and circumstances in their entirety, the order passed and direction issued by the Division Bench
of the High Court was in furtherance of justice. Not only it
has not resulted in miscarriage of justice, in fact it has
attempted to put status quo ante by balancing interests C
and leaving the matter to be decided by a Competent Authority in accordance with law.[Para 90] [291- C & D]
6.2. The Workmen in question cannot retain the benefit if they want to prosecute Claim Petitions instituted by 0
them with the Labour Court. Hence, the order passed by
the Division Bench of the High Court as to refund of
amount cannot be termed unjust, inequitable or improper.
Even if it is held that a 'technical' contention raised by the
workmen has some force, this Court which again exercises discretionary and equitable jurisdiction under ArE
ticle 136 of the Constitution, will not interfere with a direction which is in consonance with the doctrine of equity.
[Para 91] [291-E,F & G]
6.3. The order passed by the Division Bench of the
F
High Court is confirme;ct. The payment which is required
to be made as per the said order should be made by the
applicants intending to prosecute their claims before the
Labour Court. In view of the fact, however, that the said
period is by now over, ends of justice would be served if G
the time is extended so as to enable the applicants to
refund the amount. Accordingly, time is extended up to
December 31, 2008 to make such payment. However, the
Claim Petitions will not be proceeded with till such payment is made. If the payment is not made within the exH
254
SUPREME COURT REPORTS
[2008) 10 S.C.R.
,l
A
tended period, the Claim Petitions of those applicants will
automatically stand dismissed.[Para 92] [292-A,B,C & D]
7. It is clarified that no opinion has been expressed
on the merits of the case one way or the other. And as
B
and when the matter will come up before the Labour Court,
~
~
the Labour Court will consider the Claim Petitions on their
.. own merits without being influenced by any observations
made in this judgment. All contentions of all parties ineluding the contention as to maintainability or otherwise
c
of ClaimPetitions are kept open. [Para 93] [292-E & F]
·.
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 4223
of 2008
From the final Judgment and Order dated 31/10/2006 and
11/12/2006 of the High Court of Madhya Pradesh, Bench at
D Indore in W.A. No. 395 of 2006 and M.C.C. No. 1062 of 2006
~
respectively
WITH
C.A. Nos. 4224, 4225, 4226 and 4227 of 2008
E
S.K. Gambhir, Ranjit Kumar, M.P. Jha, Ram Ekbal Roy,
Harshvardhan Jha, S. Gurukrishna Kumar, Girish Patwardhan
and Srikala Gurukrishna Kumar for the Appellants.
The Judgment of the Court was delivered by
F
r
C.K. THAKKER, J. 1. Leave granted.
2. All these appeals arise out of common judgment and
order passed by the Division Bench of the High Court of Madhya
Pradesh (Indore Bench) on October 31, 2006 in Writ Appeal
G No. 353 of 2006 and companion matters and also against an
order dated December 11, 2006 in Review Petition M.C.C. No.
1062 of 2006 and cognate matters. The orders passed by the
~
.....
Division Bench of the High Court have been challenged by both
the parties i.e. employees/ workmen as also by the employer/
H Company.
.....
RAMESH CHANDRA SANKLA ETC. v. VIKRAM
255
~
CEMENT ETC. [C.K. THAKKER, J]
FACTUAL BACKGROUND
A
3. To appreciate the controversy raised in the present appeals, few relevant facts may be noted.
\
4. Vikram Cement ('Company' for short) is engaged in
'
the business of manufacturing cement of different grades and
B
has its plant at Vikram Nagar, Kher, Madhya Pradesh. Appellants in one set of appeals are employees engaged and working in the factory of the Company. It was the case of the Company that with a view to rationalize its manpower, it introduced
a Voluntary Retirement Scheme ('the Scheme' for short) on July c
12, 2001 in the Cement Plant. The said scheme provided voluntary retirement of workmen who had either completed 40 years
of age or put in at least 10 full years of service. They were to be
paid benefits as provided in the scheme. The scheme was dis-
--4
played on the Notice Board and widely publicized through local D
press. It appears that out of 1500 employees, about 460 employees opted for voluntary retirement which was accepted by
the Company and they were granted all benefits towards 'full
and final settlement' in terms of the scheme. This was done
during July-September, 2001. According to the Company, the
E
workmen received those benefits, issued stamped receipts in
token of acceptance of the amount under the scheme and
ceased to remain 'workmen' of the Company. The relationship
between the 'employer and employee' came to an end. Ac-
..,
cording to the Company, however, during September-October,
2001, some of the employees who had opted for voluntary reF
tirement, accepted benefits under the scheme and who were
no more employees of the Company approached Labour Court,
Mandsour by invoking Section 31 of the Madhya Pradesh Industrial Relations Act, 1960 (hereinafter referred to as 'the Act'),
inter alia, contending that they had not opted for voluntary reG
..
i
tirement; they continued to remain workmen of the Company;
they were pressurized, threatened and forced to accept some
amount; though they were willing to work and continue as employees of the Company, they were not allowed to join duty. It
was also their case that they were not paid legal and proper
\
H
256
SUPREME COURT REPORTS
[2008] 10·S.C.R. .
}..
A
benefits to which they were otherwise entitled even under the
scheme. The so-called payment said to have been made to
them was also not adequate and 'full and final settlement' of the
dues in accordance with law. It was, therefore, contended by
them that they were entitled to reinstatement. As they were not
l
B
allowed to continue as workmen by the Company, the impugned
:J
....
action was in the nature of an order of 'removal' or termination
of service and appropriate relief, therefore, was required to be
granted to them.
ORDER OF LABOUR COURT
c
5. Cases were duly registered by the Labour Court. Notices were issued. The Company appeared and raised preliminary objection as to the maintainability of the claim put forward by the workmen. It was contended by the Company that
?"
D the workmen had accepted the scheme and received the amount
~·
towards 'full and final settlement' and left the Company forever.
It was not a case of 'removal' or 'termination' of services and
. the applications were liable to be dismissed as they were no
more in employment. A prayer was, therefore, made to uphold
E preliminary objections which were of legal nature and to dismiss cases only on that ground. The Labour Court considered
objections raised by the Company and reply of the workmen. It,
however, opined that there was 'factual dispute' between the
parties and it was not possible to dismiss cases as being not
F
maintainable. It, therefore, directed the Company by an order
dated September 16, 2003 to file written statement so that the
,..
•
matter may be .decided on merits. The Company challenged
the said order by approaching the Industrial Court, Madhya
Pradesh at Indore but the said application was also dismissed
by the Industrial Tribunal vide an order dated February 11, 2004.
G The Company then filed reply contending that the applications
filed by the 'so called workmen' were clearly an 'afterthought',
~
more so, when they had accepted the amounts/benefits under
the scheme. Hence, the claim was wholly ill-founded. It was
averred by the Company that some of the workmen had even
H approached the Authority under the Payment of Gratuity Act for
RAMESH CHANDRA SANKLA ETC. v. VIKRAM
257
CEMENT ETC. [C.K. THAKKER, J]
increased amount of gratuity, thus, clearly exhibiting and admitA
ting to the severance of relationship of master and servant between the parties. It was contended that the workmen could not
be allowed to resile from the stand taken by them earlier. They
were estopped from challenging the factum of voluntary retirement.
B
6. The Company moved the Labour Court on November
9, 2004 requesting the Court to frame three additional issues
viz., 4(a), 4(b) and 4(c) and hear them as preliminary issues.
The said issues read as under:
c
4(a) Whether the application is barred by estoppel?
4(b) Whether the application filed by the applicant can be
heard under Sections 31 (3), 61 and 62 of MPIR Act?
--1
4(c) Whether the application is time barred?
D
7. The Labour Court accepted the request of the Company to frame issues 4(a), 4(b) and 4(c). It, however, rejected
the prayer to decide those issues as 'preliminary issues' before deciding other issues on merits. According to the Labour
Court, it was not advisable to decide the issues as preliminary E
issues without recording evidence. The application of the Company was, therefore, dismissed.
ORDER OF INDUSTRIAL COURT
8. Being aggrieved by the said order, the Company again F
approached the Industrial Court. It was contended that the preliminary issues raised by the Company and approved by the
Labour Court were 'purely legal issues' and the Labour Court
was wrong in treating them as mixed issues of law and fact
which required leading of evidence. The order passed by the G
Labour Court was, therefore, liable to be set aside.
9. The Industrial Court, however, held that the Labour Court
was right in rejecting the prayer of the Company to decide issues 4(a), 4(b) and 4(c) before deciding other issues. Accord- .
ing to the Industrial Court, it was the case of the employees that H
258
SUPREME COURT REPORTS
[2008) 10 ?.C.R.
.A . their signatures had been taken on the applications for voluntary retirement by exercising pressure and under duress. It was
· also their case that they had been paid 'lesser amount' than the
amount declared under the scheme. Moreover, they had not
accepted the amount voluntarily and with free cpnsent but .the
.. B
same was paid to them under coercion. The Court also noted
that the employees had given undertaking that they were ready
to refund .the amount received by them. The Industrial Court,,)n
the circumstances, observed that the dispute could not be resolved without recording evidence. Accordingly, the prayer made
C by the Company to decide issues of jurisdiction and maintainability as preliminary issues was rejected by the Industrial Court.
ORDER OF SINGLE JUDGE OF HIGH COURT
10. Being aggrieved by the said order, the Company ap-
. · D
preached the High Court. The learned Single Judge of the H~gh
. Court, by an order dated February 6, 2006, dismissed the writ
petition observing, inter alia, that the order passed by the Labour
. Court and confirmed by the Industrial Court was interlocutory in
nature and did not decide any controversy. It merely deferred
E , the decision on the question as to maintainability of claim along
with other issues. Such order could not be said to be without
jurisdiction so as to interfere with it in exercise of supervisory
jurisdiction under Article 227 of the Constitution. No finding much
less categorical finding one way or the other had been recorded
:. F
and rights of the parties were yet to be crystallized by the Court.
'· 1twas also observed that whether a particular issue arising from
the pleading between the parties be tried as preliminary issue
: or not should be examined by the. Court keeping in view the
provisions of Order XIV of the Code of Civil Procedure, 1908
,:.G ':"(hereinafter referred to as 'the Code'). On the facts and in the
circumstances of the case, both the Courts were right in riot
'.H
· deciding the issues as to jurisdiction and maintainability of claim
as preliminary issues. No interference was, therefore, called
·tor. Accordingly, the writ petition was dismissed.
RAMESH CHANDRA SANKLA ETC. v. VIKRAM
CEMENT ETC. [C.K. THAKKER, J]
EARLIER SLP
259
A
11. The Company challenged the said order by filing Special Leave Petition in this Court. Notice was issued and interim
stay of further proceedings was granted by this Court. The workmen appeared. On September 1, 2006, the matter was pl~ced
before the Court. During the intervening period, however, an
8
Act known as the Madhya Pradesh Uchcha Nyayalaya (Khand
Nyayapeeth Ko Appeal) Adhiniyam, 2005 ('Adhiniyam' for short)
came into force. This Court, therefore, held that it was not inclined to entertain Special Leave Petition under Article 136 of
the Constitution in view of availability of intra court appeal (Writ C
Appeal) under the Adhiniyam and accordingly, Special Leaye
Petition was dismissed with liberty to the Company to approach
the High Court. Interim relief granted earlier was, however, ordered to be continued for a period of two months. But it was
expressly stated by this Court that the question of maintainabilD
ity of intra court appeal would be decided by the High Court in
accordance with law.
ORDER OF DIVISION BENCH
12. In view of the above order passed by this Court, intra
E
court appeals were filed by the Company. The Division Bench
of the High Court, as stated above, disposed of the appeals by
an order dated 31 51 October, 2006. It was held by the Division
Bench that the writ petitions filed by the Company were under
Article 227 of the Constitution and the learned Single Judge
F
was exercising supervisory jurisdiction and intra court appeals
were not maintainable and were liable to be dismissed. The
Division Bench, however, held that since the respondent-workmen had received the benefits under the scheme, pocketed
the amount and approached the Labour Court claiming that they G
had not voluntarily accepted the scheme and the benefit there- ·
under, it would be equitable to direct each of the employees
who had filed a petition under Section 31 (3) of the: Act to return
the benefit so received to the employer, subject to the undertaking by the Company that in the event the Labour Court alH
260
SUPREME COURT REPORTS
[2008] 10 S.C.R.
A
lows the claim and grants benefits to the workmen, the same
would be restored to them by the Company with interest@ 6%
per annum.
13. The workmen are much aggrieved by that part of the
B
order which directed them to refund the amount. They filed review petitions but they were dismissed by the Division Bench
on De.cember 11, 2006. The workmen have, therefore, approached this Court by filing Special Leave Petitions in which
riotices were issued and the Company appeared. The Company, on the other hand, felt aggrieved by the drder of the Divic sion Bench holding intra court appeal not maintainable as also
by the order passed by the Labour Court, confirmed by the Industrial Court and also by the High Court not deciding issaes of
jurisdiction and maintainability of petitions filed by the employees as preliminary issues before other issues are taken up for
D consideration. Their Special Leave Petitions were also ordered
to be heard along with Special Leave Petitions filed by the workmen and that is how all the matters are before us.
SUBMISSIONS OF COUNSEL
E
14. We have heard learned counsel for the parties.
15. The learned counsel for the workmen vehemently contended that the order passed by the Division Bench of the High
Court was without jurisdiction so far as it directed the workme.n
to refund the amount received by them. The counsel submitted
F
that once the Division Bench held that intra court appeals were
not maintainable, it had no power to pass any order directing a
party to do or not to do something. Such direction is without
authority .of law, there is total lack of jurisdiction and the order is
non est. No direction of refund of amount, therefore, could have
G been issued by the Division Bench. On that ground alone, appeals filed by the workmen deserve to be allowed. Alternatively,
it was submitted that once it was the case of the workmen that
they had not accepted the scheme voluntarily, they were deemed
to be continued in employment. If it is so, they would be entitled
H to receive wages. But they were not allowed to join duty and to
~
~
I--
\
~
'
~
RAMESH CHANDRA SANKLA ETC. v. VIKRAM
261
-~
CEMENT ETC. [C.K. THAKKER, J]
work. No payment of wages had been made to them by the A
Company. The Company, for that reason also, cannot ask for
repayment of amount paid to them. At the most, the said amount
can be adjusted towards payment of wages. The counsel also
submitted that being aggrieved by the order passed by the Industrial Court, the Company filed a writ petition which was withB
drawn. No express liberty was granted to the Company to file
fresh petition on the same cause of action. Thereafter fresh
petitions were filed by the Company. Such petitions were not
maintainable and ought not to have been entertained by a Single
Judge of the High Court. They were barred by the doctrine of c
constructive res judicata as also on the ground of abandonment of claim.
16. On merits, it was submitted that the w_orkmen were not
paid the dues which ought to have been paid to them. A meager amount was offered which was accepted by workmen unD
der duress. It was less than the amount required to be paid
under the scheme. The payment was made in remote past and
at this stage, it would be very difficult for them to refund the
amount. The High Court should not have ordered repayment of
the amount to the Company and ought to have directed the
E
Labour Court to proceed to decide the matter on merits by expressly clarifying that the payment would abide by the final outcome of the cases before the Labour Court. On all these
of
grounds, it was submitted that the order passed by the Division
Bench deserves to be set aside by restoring the order of the
F
learned Single Judge.
17. The learned counsel for the Company, on the other
hand, supported that part of the order of the Division Bench
which directed refund of amount by the workmen to the Company. It was, however, submitted that the Division Bench was G
'
..
not right in not entertaining, dealing with and deciding intra court
'
1
appeals on the ground that such appeals were not maintainable. The counsel submitted that while deciding the issue as to
whether intra court appeal is or is not maintainable, nomenclatu re or reference to a particular Article of the Constitution in the H
262
SUPREME COURT REPORTS
[2008] 10 S.C.R.
A
w'rit petition is not material. Similarly, observations of learned
Single Judge that he is exercising the power under a particular
provision of the· Constitution is also not decisive. The Division
Bench was r~quired to apply its mind i,ndependently and to consider the nature of controversy raised before the Single Judge.
B And if it finds that the petition was underArtiele 226 of the Constitution, the Division Bench was enjoined to entertain intra-court
appeals and to decide them on merits. The counsel alternati~ely submitted that even if the Division Ben~h felt that the writ
petitions were under both the Articles, viz. Article 226 and Arc tigle 227 of the Constitution, as per settled law, no party ca'~ be
deprived of right of intra court appeal merely by referring to the
other Article i.e. Article 227 of the Constitution, over and.above
Afticle 226 of the Constitution under which such right is available to the party aggrieved by an order passed by a Single
0
Judge. It was, therefore, submitted that the appeals of the Company should be allowed and the matter may be remitted to the
Division Bench of the High Court so as to enable the Court to
de.cide intra Court appeals on merits in accordance with law.
';
18.