Lkp Merchant Financing Ltd. vs Govt. Of Nct And Ors.
2003 Latest Caselaw 30 Del

JUDGMENT

S.K. Mahajan, J.

Rule

1. With the consent of the parties, the matter has been heard and disposed of by this order.

2. Respondent No. 2 was employed with the petitioner as Executive (Customer Support) and was drawing a salary of Rs. 7,000/- per month at the time of his dismissal by the petitioner. Respondent No. 2 made an application before the Assistant Labour Commissioner (Conciliation Officer) for reference of the dispute about his dismissal from service to the Appropriate Court for adjudication. Before the Labour Commissioner, the petitioner had taken a plea that since respondent No. 2 was performing the duties of supervisory in character and was holding a senior managerial post and drawing a salary of Rs. 7,000/- per month, he was not a 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act and the Conciliation Officer did not have any jurisdiction to hold the conciliation proceedings. On the basis of the failure report submitted by the Conciliation Officer, the matter was referred to Labour Court No. VII for adjudication with the following terms of reference :

"Whether the dismissal of Arin Chadha, s/o Kewal Krishan Chadha has been dismissed from service by the management, illegally and /or unjustifiably, if so, to what sum of money as monetary relief along with consequential benefits in terms of existing laws/Govt. Notifications and to what other relief is he entitled and what directions are necessary in this respect?"

3. The order of reference has now been challenged by the petitioner by way of the present petition. The contention of learned Counsel for the petitioner is that since respondent No. 2 was holding an Executive post with a salary of Rs. 7,000/- per month he was not a 'workman' within the meaning of Industrial Disputes Act and consequently the reference of the dispute to the Labour Court under Section 10 of the Industrial Disputes Act was totally without jurisdiction. It is submitted that the Assistant Labour Commissioner ought to have decided the question as to whether or not respondent No. 2 was a workman and that having not been done, the reference order is liable to be quashed.

4. While holding the conciliation proceedings, it is not within the jurisdiction of the Conciliation Officer to decide the disputed questions of fact between the parties. Moreover, the question as to whether or not respondent No 2 was a 'workman' within the meaning of the Industrial Disputes Act depends upon the nature of duties performed by the said respondent and the designation and salary being received by him may not be a criteria to hold that he was not a workman. It is only after the evidence was led by the parties about nature of duties performed by respondent No. 2 that an authoritative decision could be given as to whether or not he was a workman within the meaning of Section 2(s) of the Act. Since the same involves the disputed question of fact it is only for the Labour Court to give a finding thereon and this Court under Article 226 of the Constitution of India cannot decide the same. This Court will, therefore, not like to interfere with the order of reference

and will leave it entirely to the Labour Court to decide the question as to whether or not respondent No. 2 was a workman. Accordingly, Rule is made absolute and this petition is dismissed with no order as to costs. I, however, direct the Labour Court to frame a preliminary issue on the question as to whether or not respondent No. 2 is a workman and decide the same before deciding the dispute on merits.

Interim order passed earlier stands vacated.