LUPIN LTD Vs. G SURESH

JUDGEMENT

(1.) The petitioner in this writ petition is a company registered under the Companies Act 1956, engaged in the business of manufacturing and marketing pharmaceutical products. The first respondent herein was a medical representative working in the petitioner company from 16-7-1986. He was discharged from service on 6-9-2001, against which he raised an industrial dispute, which was referred by the Government of Kerala to the Industrial Tribunal, Alappuzha for adjudication. The same was being adjudicated as I.D. No. 70/2002 by the Tribunal. In the same, the petitioner company raised a preliminary objection that the 1st respondent being neither a sales promotion employee as defined under the Sales Promotion Employees (Conditions of Service) Act, 1976, ("SPECS Act" for short) nor a workman as defined under the Industrial Disputes Act, the reference itself was not maintainable. The tribunal considered the maintainability of the reference as a preliminary issue and passed Ext. P3 preliminary order holding that the reference is maintainable. The said preliminary order is under challenge in this writ petition at the instance of the petitioner - management.

(2.) Before considering the issues involved, I am constrained to note that the procedure adopted by the Tribunal is against the decisions of this Court as well as that of the Supreme Court in the matter of consideration of industrial disputes by Labour Courts and Industrial Tribunals. This Court and the Supreme Court have time and again held that ordinarily the Industrial Tribunal should not encourage piece-meal adjudication. Of course, while considering the validity of dismissal, discharge and termination of service of a workman as a punishment on the basis of a domestic enquiry, certainly an Industrial Tribunal or a Labour Court is to consider the validity of the enquiry as a preliminary point. However, when the question of maintainability of the reference is raised as an issue, it is not at all necessary to consider the same as a preliminary issue, especially when the consideration of that issue would require ascertainment of facts on evidence, which can be done while considering the issue referred for adjudication after evidence is adduced by both sides in the I.D. Here, the maintainability of the reference was raised as a preliminary issue. That question essentially involved many questions of facts as would be evident from the discussion of the issues involved, in this judgment. Therefore the more appropriate procedure the Industrial Tribunal should have adopted in this case was to consider the entire matter in the final award after taking evidence, instead of considering the maintainability of the reference as a preliminary issue and passing a preliminary order.

(3.) On a perusal of the pleadings before the Industrial Tribunal, and Section 6(2) of the SPECS Act, the following three issues arise for consideration: