Management Of Sunder Lal Jain ... vs Sunder Lal Jain Hospital ...
2006 Latest Caselaw 204 Del

JUDGMENT

Markandeya Katju, C.J.

1. This writ appeal has been filed against the impugned judgment of the learned Single Judge dated 1.10.2001.

2. Heard learned counsel for the parties and perused the record.

3. The facts in detail have been set out in the judgment of the learned Single Judge and hence we are not repeating the same except where necessary.

4. It appears that the writ petitioner (respondent in this appeal) is a union of employees of the Sunder Lal Jain Hospital. It had filed a writ petition challenging the order of the Labour Officer dated 1.2.2000 for a direction to the respondent to comply with the provisions of Section 33(4) of the Industrial Disputes Act, 1947. By the said order of the Labour Officer dated 1.2.2000 certain workmen of the hospital were declared as protected workmen for the year 1999-2000 but the Vice-President Mohd Shakir, petitioner No. 2, its General Secretary and Karam Singh, petitioner No. 3 were not declared protected workmen for the year 1999-2000. The petitioner prayed for quashing of the said order dated 1.2.2000 to that extent.

5. Against the order dated 1.2.2000 the writ petition was filed and the impugned judgment was passed by the learned Single Judge dated 1.10.2001 by which the learned Single Judge has observed that:-

In these circumstances I hold that it would be deemed that the petitioner Nos. 2 & 3 are protected workmen in this period.

6. The learned Single Judge has also observed that:-

Since the petitioner Nos. 2 & 3 were protected workmen their termination of service was contrary to Section 33(4) of Industrial Disputes Act and hence they should be reinstated with full back wages.

7. In our opinion, the impugned judgment of the learned Single Judge is liable to be set aside. The declaration of a workman as a protected workman can only be done by the authority referred to in Rule 61 of the Industrial Disputes (Central) Rules and not by the High Court. In the present case, the learned Single Judge has declared Mohd. Shakir and Karam Singh as protected workmen which in our opinion he could not do. If the learned Single Judge was of the opinion that the order of the Labour Officer dated 1.2.2000 was erroneous in law, he could have quashed the order and remanded the matter back to the Assistant Labour Commissioner for a fresh decision in accordance with law but he had no jurisdiction himself to declare any workman as a protected workman.

8. It is well settled that the High Court cannot takeover the function of the statutory authorities under an Act, vide G.Veerappa Pillai, Proprietor, Sathi Vihar Bus Service Porayar, Tanjore District, Madras v. Raman and Raman Ltd. Kumbakonam, Tanjore District and Ors. , State of U.P v. Section Officer Brotherhood and Anr. , U.P. State Road Transport Corporation and Anr. v. Mohd. Ismail and Ors. and State of U.P and Anr. v. Raja Ram Jaiswal and Anr. (1985) 2 SCC 131 (paragraph 16).

9. For instance, the Supreme Court in G.Veerappa Pillai, Proprietor, Sathi Vihar Bus Service Porayar, Tanjore District, Madras v. Raman and Raman Ltd. Kumbakonam, Tanjore District and Ors. held that the High Court cannot direct the Regional Transport Authority to grant a bus permit under the Motor Vehicles Act because in that event, the High Court itself will be acting as the permit granting authority. Similarly, in State of U.P v. Raja Rama Jaiswal (supra) the Supreme Court observed:

The High Court was, of course, clearly in error in issuing a mandamus directing the District Magistrate to grant a license. Where a statute confers power and casts a duty to perform any function before the power is exercised or the function is performed, the Court cannot in exercise of writ jurisdiction supplant the licensing authority and take upon itself the functions of the licensing authority. The High Court was hearing a writ petition praying for a writ of certiorari for quashing the order of remand. The High Court could have quashed the order of remand if it was satisfied that the order suffers from an error apparent on the record. But there its jurisdiction would come to an end. The High Court cannot then proceed to take over the functions of the licensing authority and direct the licensing authority by a mandamus to grant a license.

10. Similarly, in the present case if the learned Single Judge thought that the order of the Labour Officer was erroneous in law he should, after quashing the order, have remanded the matter to the Assistant Labour Commissioner (Central) which is the concerned authority under Rule 61 (4) but he could not have himself declared the respondents as 'protected workmen.'

11. For the reasons given above, the appeal is allowed and impugned judgment of the learned Single Judge is set aside.

12. The matter is remanded to the ALC (Central) concerned who will decide the matter expeditiously in accordance with law after hearing the parties concerned.