..*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1430/2008
% Date of decision: 14th May, 2010
UMESH KUMAR ..... Petitioner
Through: Mr. Anuj Aggarwal, Advocate.
Versus
UNION OF INDIA & OTHERS ..... Respondents
Through: Ms. Meera Bhatia, Advocate for UOI.
Mr. Arun Birbal, Advocate for R-2.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? NO
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported NO
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petitioner workman by this petition impugns the order dated 27th November, 2007 of the respondent no.1 UOI, acting as the appropriate Government under Section 10 of the Industrial Disputes Act, 1947, refusing to refer for adjudication to the Industrial Tribunal/Labour Court the dispute raised by the petitioner workman with the respondent no.2 DDA. The reason given for such refusal is "Cessation of the services of the claimant came to an end consequent on his resignation vide his letter dated 11.12.1999 and hence the matter raised cannot be construed as an "industrial dispute"."
2. While the respondent no.2 DDA had contended that the petitioner had resigned from employment, the petitioner workman had before the Conciliation W.P.(C)1430/2008 Page 1 of 4 Officer disputed the said fact. The petitioner workman had in this regard relied upon the public notices got published by the respondent no.2 DDA in the newspapers asking him to rejoin duty. The contention of the counsel for the petitioner workman is that if the case set up by the respondent no.2 DDA of the petitioner workman having resigned on 11th December, 1999 was correct there was no occasion for publication of the said notices in the newspaper on 28th April, 2002. The case of the petitioner workman is that after the said notices the respondent no.2 DDA terminated his services without holding any inquiry and which makes the said order of termination bad.
3. The counsel for the respondent no.2 DDA has contended that the petitioner workman has neither in the pleadings before the Conciliation Officer nor before this court controverted the letter of resignation. It is thus contended that the appropriate Government was correct in refusing to refer the dispute since the petitioner workman has admitted the resignation. It is further contended that in view of the resignation, no inquiry was necessary. It is also contended that the letter of appointment relied on by the petitioner workman is forged and fabricated.
4. Even if it were to be held that the petitioner workman has not controverted the letter of resignation, the issuance of the public notices thereafter on 28th April, 2002 asking the petitioner workman to rejoin duty indicates that the resignation even if any was not accepted by the respondent no.2 DDA. In any case, all the said issues are matters to be adjudicated upon, not by this court, but by an Industrial Tribunal or Labour Court.
W.P.(C)1430/2008 Page 2 of 4
5. The petitioner has in the writ petition itself relied on:
A. Telco Convoy Drivers Mazdoor Sangh. vs. State of Bihar (1989) 3 SCC 271 laying down that the appropriate Government is only entitled to form an opinion as to whether the Industrial Dispute exists or is apprehended and is not entitled to adjudicate the dispute itself on merits. B. Ram Avtar Sharma Vs. State of Haryana AIR 1985 SC 915 holding that the appropriate Government cannot delve into the merits of the dispute and take upon itself the determination of lis. C. MP Irrigation Karamchari Sangh Vs. State of MP AIR 1985 SC 860 laying down that the appropriate Government in exercise of powers under Section 10 of the ID Act has limited jurisdiction to examine patent frivolousness of the demands and adjudication of the demands of the workmen should be left to the Tribunal to decide.
6. I may notice that the Supreme Court recently in Sarva Shramik Sangh Vs. Indian Oil Corporation Ltd. (2009) 11 SCC 609 has held that the reference of dispute to Industrial Tribunal in exercise of powers under Section 10(1) of the ID Act is an administrative and not a judicial or quasi judicial function; the Government cannot consider merits of the dispute and decide a lis; only where the demand is frivolous or perverse, reference can be denied. In that case the writ of mandamus was issued directing the Government to reconsider the refusal to make a reference.
W.P.(C)1430/2008 Page 3 of 4
7. In the present case, even if the letter of resignation is uncontroverted by the petitioner workman, nevertheless the respondent no .2 DDA is to explain the circumstances in which inspite of the resignation the public notices aforesaid were issued. It thus cannot be said that the dispute raised by the petitioner workman is frivolous or that his demand is perverse.
8. The order impugned of the appropriate Government thus cannot be sustained. The writ petition is allowed. Mandamus is issued to the respondent no.1 UOI to, within three months of today, reconsider the refusal of the reference and to take an appropriate decision on the request of the petitioner for reference of dispute to the industrial adjudicator. The writ petition is disposed of. However, nothing contained herein to be deemed to be an expression of opinion on the merits of the dispute. Parties are left to bear their own costs.
RAJIV SAHAI ENDLAW (JUDGE) 14th May, 2010 M W.P.(C)1430/2008 Page 4 of 4