Hem Chand And Ors. vs Government Of Nct Of Delhi And Ors.
2003 Latest Caselaw 392 Del

ORDER

Mukundakam Sharma, J.

1. This writ petition is filed by the petitioners praying for the following reliefs:

(i) Writ, order or direction in the nature of mandamus or any other appropriate writ, order or direction, directing the respondent No. 1 to close the conciliation proceedings pending before him and refer the same for adjudication to the Court immediately.

(ii) Writ, order or direction in the nature of mandamus or any other appropriate writ, order or direction, directing the respondent No. 2, to maintain status quo with regard to the employment of the petitioners, with the respondent No. 2 till the industrial dispute regarding the status of the petitioners is decided by the Industrial Court.

2. At the very threshold of the arguments, it is stated by the counsel appearing for the petitioner that so far as relief in one of the writ petitions is concerned, the same has been rendered infructuous in view of the fact that reference has already been made by the appropriate Government to the Industrial Adjudicator, namely, the Industrial Tribunal No. 1 under Reference No. F- 241545/2003 vide order dated April 3, 2002. As the reference is already made of the disputes raised by the workmen, the first relief i.e. sought for in this petition does not survive for consideration and stands accordingly disposed of.

3. The writ petition is, however, pressed so far as the second relief is concerned, on the ground that the petitioners are entitled to continue to work with the respondent No. 2/hospital although the said respondent has appointed a new contractor, in the meantime, When the writ petition was moved, and it was listed before this Court, it was pointed out by the counsel appearing for respondent No. 2 that the said respondent has already entered into a fresh contract with a new contractor, who is now supplying workers for various duties in the hospital. Counsel appearing for the petitioners, at that stage, contended that the petitioners have also been working. However, considering, the statement made by the counsel appearing for the respondent No. 2, it was observed by this Court in the order dated January 6, 2003 that no interim order, as sought for, could be passed, at that stage, but that the said appointment of the new contractor by the respondent No. 2 and its functioning would be subject to the final orders to be passed in the writ petition. In that view of the matter the second relief is pressed by the counsel appearing for the petitioners.

4. I have considered the submissions of the counsel appearing for the petitioner as also the counsel appearing for the respondent No. 2/hospital. Originally, when the writ petition was filed, there was no reference of the disputes by the appropriate Government and, therefore, the writ petition filed seeking for a direction to make a reference. By the subsequent events, the situation has changed and in view of the reference, the matter is now pending before the Industrial Adjudicator for consideration. As a matter of fact, as held by the Supreme Court in the decision of Steel Authority of India Ltd. and Ors. v. National Union Water Front Workers and Ors. no writ petition is maintainable in the High Court under Article 226 of the Constitution of India praying for regularisation of services of the contract labourers.

5. My attention is drawn to the order of the Division Bench passed in LPA No. 100/1993, which was disposed of on February 4, 2003. In the said appeal counsel appearing for the petitioners herein was also the counsel and statement was made by her before the Division Bench that the provisions of Section 33 of the Industrial Disputes Act, 1947, would be applicable only in a case where the employee concerned is out of job. Therefore, according to the counsel appearing for the petitioners the provisions of Section 33 of the Industrial Disputes Act would be applicable when the employees concerned are out of job. The petitioners herein are also out of job, from the respondent No. 2/hospital and, therefore, going by the aforesaid statement of the counsel appearing for the petitioner, made before the Division Bench, the petitioners shall have a remedy before the Industrial Adjudicator, as provided for under Section 33 of the Industrial Disputes Act. It is, however, made clear that as and when such submission is made before the Tribunal, the same shall be considered by the said Tribunal in accordance with law. Applicability of the said provision to the facts is a matter to be considered by the Tribunal and to be decided by the Tribunal in accordance with law.

6. When this Court does not have the jurisdiction to direct for regularisation of the services of the contract labourers in exercise of jurisdiction under Article 226, no interim order could also be passed by this Court in exercise of the said jurisdiction. This Court shall not have the power and jurisdiction to pass an interim order if this Court does not have the jurisdiction to pass a final order in the writ petition.

7. It is also submitted by the counsel appearing for the petitioners that an Industrial Adjudicator is to decide an industrial dispute within three months period as provided for under proviso to Sub-section (2A) of Section 10 of the Industrial Disputes Act. It is also to be noted that there is another proviso to the Sub-section (2A) of Section 10 of the Industrial Disputes Act, which provides that no proceedings before a Labour Court, Tribunal or National Tribunal shall lapse merely on the ground that any period specified under this sub-section had expired without such proceedings being completed. Therefore, a proceeding is not bad in law even if it is not completed in three months period as provided for under the said Sub-section (2A) to Section 10 of the Industrial Disputes Act. Be that as it may the Industrial Adjudicator shall make endeavor to take up and complete the proceedings as early as possible. In terms of the aforesaid order, the writ petition stands disposed of.