Brahm Kaur vs Secretary (Labour) Govt. Of Nct, ...
1999 Latest Caselaw 964 Del

ORDER

A.K. Sikri, J.

1. Rule.

With the consent of the parties the matter is heard and disposed of at this stage.

2. Petitioner was employee of respondent No. 2. Charge-sheet was issued against her by respondent No. 2 and enquiry was held and persuant thereto petitioner was dismissed from service vide Order dated 19th October, 1995. Petitioner raised industrial dispute against her dismissal by filing statement of claim before the Conciliation Officer on 28th November, 1995. The conciliation proceedings ended in failure. Respondent No. 1 after considering the report of Conciliation Officer passed impugned order dated 31st March 1997 declining to refer the dispute relating to dismissal of the petitioner for adjudication by Labour Court/Industrial Tribunal. Against this order dated 31st March, 1997 the petitioner had filed this writ petition.

3. Impugned Order dated 31st March, 1997 by which reference was refused by respondent No.1, gives the following reasons :-

"The applicant/worklady has been dismissed from service after due process of law and admittedly after providing her the opportunity of self defense as per natural justice."

4. A perusal of the aforesaid reasons show that the appropriate government took the view that services of the petitioner were terminated after due process of law and the enquiry was held in accordance with the principles of natural justice. This is not the domain of respondent No.1 inasmuch as it amounts to adjudication of the dispute on merits which is the function of the adjudicatory body namely, Labour Court/Industrial Tribunal created under the Industrial Disputes Act. Law on this point is well settled and it is not necessary to refer to various judgment on this point. Suffice would be to refer to the judgment of division bench of this Court in the case of Wings Wear Corporation Vs. Workmen of Wings, Wear Corporation reported in (1989) 74 FJR 344 which is squarely on the point and the court made the following pertinent observations:

"The question whether the inquiry held by the management is fair or whether termination/dismissal is legal or justified, or whether the punishment is reasonable, or whether an act constitutes victimisation, have necessarily to be adjudicated, and, cannot be a subject matter of decision by the appropriate Government under Section 12(5) for the purpose of making an order under Section 10 of the Act. Even a prima facie view on these aspects of the dispute cannot be expressed by the appropriate Government."

5. When there was an authoritative pronouncement of the division bench of this Court in the aforesaid judgment way back in 1989 clearly holding that it was not for the appropriate government to decide the legality or justification of termination/dismissal and appropriate government should have made reference of such a dispute under Section 10 of the Industrial Disputes Act and respondent No.1 was a party, to that case, it is not understood how respondent No.1 in utter disregard to the aforesaid judgment which was on identical facts as in the instance case, still declined to make reference by stating the aforesaid reasons.

6. Rule is made absolute. Writ petition is allowed. Since sufficient time has lapsed after a dismissal of the workman, mandamus is issued directing respondent No.1 to make reference of the dispute raised by the petitioner within eight weeks from the date of receipt of copy of this order.