1. Petitioner is the Management and Respondent No.1 is the Union which represented the Employee in I.D. No.22/2016 on the files of the Labour Court, Ernakulam. Petitioner has filed this Writ Petition challenging Ext.P14 Preliminary Order passed by the Labour Court dismissing I.A. No.131/2017 filed by the Management for deciding the issue relating to the maintainability of the reference on the ground that the Employee, Mr. Antony Abu Franklin, is not a ‘workman’ as defined under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the ‘I.D. Act’). As per Ext.P14 Order, the Labour Court found that the Employee will come within the purview of ‘workman’ under Section 2(s) of the I.D. Act.

2. Since the Counsel for the Respondent No.1 raised the maintainability of the Writ Petition challenging Ext.P14 Preliminary Order of the Labour Court, the question of maintainability of the Writ Petition was heard.

3. I heard the learned Counsel for the Petitioner, Sri. Paulson C. Varghese, and the learned Counsel for the Respondent No.1, Sri. B. Ashok Shenoy.

4. Learned Counsel for the Petitioner contended that there is no absolute bar for filing a Writ Petition challenging the Preliminary Order passed by the Labour Court. In the Division Bench decision of this Court in Chelamattom Sree Krishna Swami Devaswom Trust v. State of Kerala and Others [2022 (4) KHC 215], this Court has only held that, under normal circumstances, a Writ Petition against the Preliminary Order of the Labour Court would not ordinarily be entertained by this Court in proceedings under Article 226 and 227 of the Constitution of India. The said legal proposition barring Writ Petition challenging a Preliminary Order is applicable only when the legality of the enquiry proceedings is considered in the Preliminary Order. If the Employee does not come within the definition of ‘workman’ under Section 2(s) of the I.D. Act, the Labour Court will not have any jurisdiction to adjudicate the dispute. Petitioner has raised the contention that the Employee will not come within the definition of ‘workman’ under Section 2(s) of the I.D. Act. When there is absolute perversity in the impugned Order while rejecting such contention by the Labour Court, this Court is perfectly justified in entertaining the Writ Petition. Learned Counsel cited the Division Bench decision of this Court in St.Thomas Missions Hospital v. State of Kerala and Another [2007 (1) KHC 583] in which it is held that the proposition of law that the parties should not be allowed to challenge the Preliminary Orders of the Labour Court and they should be left to challenge that Order also by challenging the final award is not for universal application without any exception in all cases. Learned Counsel cited the decision of the Hon'ble Supreme Court in V.G. Jagdishan v. Indofos Industries Limited [2022 (6) SCC 167] in which it is held that when the issue touches the question of territorial jurisdiction, as far as possible the same shall have to be decided first as preliminary issue and that in such case, the Labour Court does not commit any error in deciding the issue with respect to territorial jurisdiction as a preliminary issue in the first instance. The contention raised by the Petitioner before the Labour Court that the Employee will not come within the definition of ‘workman’ under Section 2(s) of the I.D. Act, if decided in favour of the Petitioner, will oust the jurisdiction of the Labour Court to entertain the Industrial Dispute. Learned Counsel cited the decision of the Hon'ble Supreme Court in the Management of the Express Newspapers (P) Ltd., Madras v. Workers and Others [AIR 1963 SC 569] to substantiate the point that if the Industrial Tribunal proceeds to assume jurisdiction over a non-industrial dispute, that can be successfully challenged before the High Court by a petition for an appropriate writ, and the power of the High Court to issue an appropriate writ cannot be questioned. Learned Counsel contended that there was ample evidence before the Labour Court to hold that the Employee was employed in a supervisory capacity and was drawing salary above the prescribed limit and hence the Labour Court ought to have found that the Employee does not come within the definition of ‘workman’ under Section 2(s) of the I.D. Act. The Petitioner has a sure chance of success in this Writ Petition and hence the Employee wants to avoid consideration of the legality of the Preliminary Order in this Writ Petition, by raising technical arguments. If the proceedings in the I.D. are allowed to continue on a non-industrial dispute, it would result in wastage of valuable judicial time. Learned Counsel prayed for considering the Writ Petition on merits rejecting the objection as to the maintainability of the Writ Petition raised by the Counsel for the Respondent No.1.

5. Per contra, the learned Counsel for the Respondent No.1 contended that the issue is well settled in favour of the Employee. It is true that in St. Thomas Missions Hospital (supra), this Court has found that the non-maintainability of Writ Petition challenging the Preliminary Order is not for universal application without any exception in all cases. The said decision is clearly distinguishable on facts. The said Writ Petition arose from a Preliminary Order in which the enquiry was set aside and there was no prayer from the Management seeking permission to adduce evidence to prove the charges. In such case, the proceedings in the industrial dispute are terminated by the Preliminary Order itself and hence, it is held that the Writ Petition is maintainable against the Preliminary Order. The said decision is considered and distinguished by the learned Single Judge of this Court in Amrita Institute of Medical Sciences (AIMS) v. Labour Court, Ernakulam, and Others [2017 (5) KHC 441]. The said decision in Amrita Institute of Medical Sciences (supra) is affirmed in the decision in Chelamattom Sree Krishna Swami Devaswom Trust (supra), distinguishing the decision in St.Thomas Missions Hospital (supra). Learned Counsel cited the decision of the Hon'ble Supreme Court in D.P. Maheshwari v. Delhi Administration and Others [(1983) 4 SCC 293], which is relied upon in the decisions in Amrita Institute of Medical Sciences (supra) and Chelamattom Sree Krishna Swami Devaswom Trust (supra). In D.P. Maheshwari (supra), the challenge was against the Preliminary Order passed by the Labour Court holding that the employee therein is a ‘workman’ as defined under Section 2(s) of the I.D. Act and the Hon'ble Supreme Court held that the Writ Petition against the said Preliminary Order is not maintainable. Learned Counsel cited the decision of this Court in Secretary, Kalpetta Service Co-operative Bank v. P.J. Udayakumari [2025 KHC 1569] in which this Court held that the Writ Petition challenging the Preliminary Order finding the reference valid is not maintainable. The learned Counsel cited the Single Bench decision of this Court in Shwas Homes Private Limited v. The Presiding Officer, Labour Court and Another [2021:KER:43423] in which this Court distinguished the decision in St. Thomas Missions Hospital (supra) and held that the Writ Petition is not maintainable challenging the Preliminary Order of the Labour Court finding that the employee is a ‘workman’ as defined under S.2(s) of the I.D. Act. Learned Counsel pointed out that the Single Bench decision in Shwas Homes Private Limited (supra) is confirmed by the Division Bench in Shwas Homes Private Limited v. The Presiding Officer, Labour Court and Another [2022:KER:35281]. Learned Counsel cited the decision of the learned Single Judge of this Court in O.T. Alexander v. General Secretary, Industrial Complex Labour Union (INTUC) and Another [2024:KER:25013] arising from the very same Industrial Dispute challenging the Preliminary Order setting aside the Enquiry Report on the ground of violation of principles of natural justice, in which it is held that Writ Petition against the Preliminary Order of the Labour Court is not maintainable. Learned Counsel concluded his arguments praying to dismiss the Writ Petition finding that the Writ Petition is not maintainable against Ext.P14 Preliminary Order of the Labour Court.

6. I have considered the rival contentions.

7. The short question to be considered is whether a Writ Petition challenging the Preliminary Order of the Labour Court rejecting the objection of the Management that the Employee is not a ‘workman’ defined under the I.D. Act, is maintainable or not.

8. It is clear from the precedents cited before me that the proposition that there could not be any challenge against the Preliminary Orders in Industrial Disputes pending before the Labour Court/Tribunal is not an absolute proposition of law. Learned Counsel for the Petitioner has cited the Division Bench decision of this Court in St. Thomas Missions Hospital (supra) to contend that when there is an absolute lack of jurisdiction for the Labour Court to adjudicate the dispute, the Writ Petition under Articles 226 & 227 of the Constitution of India can be maintained. In the said decision, the Division Bench of this Court has held that in appropriate cases where the Labour Court has, on a totally misconceived reasons, set aside an Enquiry, the Management cannot be asked to wait till the final award is passed to challenge the Preliminary Order; that in such cases, this Court should certainly interfere at the first stage itself without relegating the Management to the circuitous process; and that it could not be assumed all rights in favour of the workmen alone although they are weaker in bargaining power and should recognise the rights of the Management also where they have such rights and cannot postpone such rights in the name of comparative weakness in the bargaining power. The learned Single Judge in Amrita Institute of Medical Sciences (supra) and the Division Bench in Chelamattom Sree Krishna Swami Devaswom Trust (supra) distinguished the decision in St. Thomas Missions Hospital (supra), finding that the said decision was a case where the Management had already bound itself to the enquiry that was conducted by them and had not reserved a right to hold de novo proceedings in the event of a finding by the Labour Court that the enquiry conducted by it was vitiated in any manner. In the present case, the Management has reserved its right to hold de novo proceedings to substantiate the Charges against the Employee, if the Labour Court sets aside the Enquiry. Hence, the decision in St.Thomas Missions Hospital (supra) is clearly distinguishable on the facts of the present case. As rightly pointed out by the learned Counsel for the Respondent No.1, the decision of the Hon'ble Supreme Court in D.P. Maheshwari (supra) is a case where the Management raised a preliminary contention before the Labour Court that the employee was not a ‘workman’ within the meaning of Section 2(s) of the I.D. Act and the reference was therefore incompetent. The Labour Court tried the said question and found that the Employee therein is a ‘workman’ under Section 2(s) of the I.D. Act. The Management challenged the decision of the Labour Court on the said Preliminary issue by filing a Writ Petition under Article 226 of the Constitution of India. The learned Single Judge of the Delhi High Court allowed the Writ Petition and quashed the Preliminary Order passed by the Labour Court and the reference made by the Government and the same was affirmed by the Division Bench of the same Court. The Hon'ble Supreme Court held that the High Court was totally unjustified in interfering with the Order of the Labour Court under Article 226 of the Constitution and set aside the Judgment of the learned Single Judge and the Division Bench of the Delhi High Court and restored the Order of the Labour Court. It is apposite to extract Paragraph No.1 of the said decision:

                   “It was just the other day that we were bemoaning the unbecoming devices adopted by certain employers to avoid decision of industrial disputes on merits. We noticed how they would raise various preliminary objections, invite decision on those objections in the first instance, carry the matter to the High Court under Article 226 of the Constitution and to this Court under Article 136 of the Constitution and delay a decision of the real dispute for years, sometimes for over a decade. Industrial peace, one presumes, hangs in the balance in the meanwhile. We have now before us a case where a dispute originating in 1969 and referred for adjudication by the Government to the Labour Court in 1970 is still at the stage of decision on a preliminary objection. 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. We think it is better that tribunals, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. Nor should High Courts in the exercise of their jurisdiction under Article 226 of the Constitution stop proceedings before a tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the High Court under Article 226 of the Constitution nor the jurisdiction of this Court under Article 136 may be allowed to be exploited 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. Article 226 and Article 136 are not meant to be used to break the resistance of workmen in this fashion. Tribunals and Courts who are requested to decide preliminary questions must therefore ask themselves whether such threshold part-adjudication is really necessary and whether it will not lead to other woeful consequences. After all tribunals like Industrial Tribunals are constituted to decide expeditiously special kinds of disputes and their jurisdiction to so decide is not to be stifled by all manner of preliminary objections and journeyings up and down. It is also worthwhile remembering that the nature of the jurisdiction under Article 226 is supervisory and not appellate while that under Article 136 is primarily supervisory but the court may exercise all necessary appellate powers to do substantial justice. In the exercise of such jurisdiction neither the High Court nor this Court is required to be too astute to interfere with the exercise of jurisdiction by special tribunals at interlocutory stages and on preliminary issues.”

9. The decision in D.P. Maheshwari (supra) was followed in the Single Bench decisions of this Court in Amrita Institute of Medical Sciences (supra) and Shwas Homes Private Limited and the decision of the Division Bench in Chelamattom Sree Krishna Swami Devaswom Trust (supra). In the recent decision of the learned Single Judge of this Court in Secretary, Kalpetta Service Co-operative Bank (supra), it is held that this Court should not interfere with the Preliminary Orders of the Labour Court, as such Orders can be challenged along with the final Award to ensure speedy disposal of the industrial disputes and prevent unnecessary delays. These decisions are rendered considering the objects of the Industrial Disputes Act, 1947, and to protect the interests of the workmen who belong to the weaker section of the society. That apart, the decision of the learned Single Bench of this Court in O.T. Alexander (supra) is in a Writ Petition filed by the Management in the present case itself. Following the decision of the Division Bench of this Court in Chelamattom Sree Krishna Swami Devaswom Trust (supra), it is found that the Writ Petition under Article 226 of the Constitution of India is not maintainable to challenge the Preliminary Order of the Labour Court.

10. Hence, I find that the present Writ Petition challenging Ext.P14 Preliminary Order is not maintainable. Accordingly, the Writ Petition is dismissed, leaving open all the contentions of the Petitioner against Ex.P14 Order to be raised at the appropriate stages of the proceedings. Since the industrial dispute is of the year 2016, the Labour Court is directed to dispose of the same within a period of six months from the date of receipt of a certified copy of this judgment.