Badarpur Power Engineers And ... vs Union Of India (Uoi) And Ors.
2003 Latest Caselaw 1165 Del

JUDGMENT

Mukul Mudgal, J.

1. Rule has been issued in the present writ petition on 5th February, 1996.

2. With the consent of the counsel for the parties, the matter is taken up today for final hearing.

3. This writ petition challenges the Order dated 5/9th January, 1995, refusing to refer the industrial dispute sought to be espoused by the petitioner for adjudication. The said order deals with two issues and reads as follows:-

"The Union had demanded representations from the National Bipartite Committee. This being a managerial function cannot constitute the basis for an Industrial dispute. Besides, the demand inter alia also pertains to recognition of the Union. It has already been decided by the Government that this cannot constitute an Industrial dispute. The Union has challenged the decision of the Ministry of Labour not to refer a similar dispute for adjudication in the Delhi High Court vide WP No.2480/93 and hence the entire matter is subjudice.

It is reported that no bona fide employee is prevented from attending his duties at his place of work except those who are under suspension."

4. As far as the issue raised in the first paragraph of the aforesaid order relating to the ascertainment of the sole bargaining agent through secret ballot is concerned, it already stood disposed of by a judgment dated 8th April, 1999 passed by this Court in Civil Writ Petition No.2480 of 1993. The only dispute referred which is claimed to be surviving by the petitioner is the second one relating to the prevention of a bona fide employee from attending his duties.

5. The petitioner has submitted that the observations made in the impugned Order dated 5/9th January, 1995 amounts to recording a finding on merits. Mr. Birbal, the learned Senior Counsel, appearing on behalf of the respondent No.3 rather than going into the merits of this finding has submitted in reply that in the interest of industrial peace and since the dispute has been festening for almost one decade, it will be appropriate that the reference should not be made. He has further relied upon an order of the Hon'ble Supreme Court in Workmen Vs I.I.T.I. Cycle of India Limited & Others to contend that the industrial peace and and smooth industrial relations between the parties is a factor which is to be reckoned in declining a reference.

6. I am of the view that in the facts and the circumstances of the present case and considering the passage of almost one decade, it is appropriate that the grievances raised in the present writ petition ought to be raised by the petitioner first by making a representation to the respondent No.3, who is directed to dispose of the petitioner's representation not later than 8 weeks from the receipt of such representation. In case the petitioner's representation is not accepted, it will be open to the petitioner Union to adopt the route indicated by Sections 10 and 12 of the Industrial Disputes Act. The observations made in the impugned Order dated 5/9th January, 1995 will not come in the way of the petitioner in so far as the said observation seeks to enter into the merits of the dispute and are, therefore, not sustainable. In case the request is made for making a reference, it shall be disposed of expeditiously by the Government in accordance with the present position of law and not later than 4 months from receiving such a request.

7. The writ petition stands disposed of accordingly.