Shri Sureshanand vs Union Of India And Another
2009 Latest Caselaw 3322 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P.(C.) No. 717/2007

%                     Date of Decision: 24th August, 2009


# SHRI SURESHANAND
                                                      ..... PETITIONER
!                     Through: Ms. Deepali Gupta, Advocate.

                                    VERSUS

$ UNION OF INDIA & ANR.
                                                     .....RESPONDENTS

^ Through: None for respondent No. 1.

Mr. R.S. Mathur for respondent No. 2.

CORAM:

Hon'ble MR. JUSTICE S.N. AGGARWAL

1. Whether reporters of Local paper may be allowed to see the judgment? YES

2. To be referred to the reporter or not?YES

3. Whether the judgment should be reported in the Digest?YES

S.N.AGGARWAL, J (ORAL) The petitioner had made a claim before the Conciliation Officer

alleging that he was illegally terminated by respondent No. 2 bank after

he had worked with the bank for 15-16 years. The notice of the

petitioner's claim was sent by the Conciliation Officer to respondent No. 2

bank and since no conciliation could took place between the parties, the

Conciliation Officer submitted failure report dated 24.06.2005 to the

appropriate Government. On receipt of the failure report from the

Conciliation Officer, the Government vide impugned order dated

31.10.2005 (at page 16 of the paper book) declined to refer the dispute

raised by the petitioner for his reinstatement for adjudication of the

Labour Court for the following reasons:-

"The disputant failed to establish a valid claim against the

bank management to the effect that he was engaged for a period of

not less than 240 days in any 12 calender months preceding his

alleged termination from service. In the circumstances, the dispute

does not exist under the Industrial Disputes Act, 1947."

2 Ms. Deepali Gupta learned counsel appearing on behalf of the

petitioner has argued that the impugned order passed by the

Government declining to refer the dispute for adjudication to the Labour

Court is adjudicatory in nature. Her contention is that the Government

could not have taken upon itself the task of deciding whether the

petitioner had worked for 240 days in the year preceding the date of his

alleged termination or not. Ms. Gupta learned counsel appearing on

behalf of the petitioner submits that in view of stand taken by respondent

No. 2 bank before the Conciliation Officer denying the relationship of

employer and employee between the parties, it was incumbent upon the

Government to have referred the dispute for decision to the Central

Government Industrial Tribunal-cum-Labour Court so that both the parties

could be heard on the stand taken by respondent No. 2 in opposition to

the claim of the petitioner regarding relationship of employer and

employee between them. Learned counsel appearing on behalf of the

petitioner therefore submits that the impugned order declining to refer

the dispute passed by the Government should be set aside by this Court

and the Government may be asked to consider to refer the dispute for

adjudication to the CGIT.

3 On the other hand, Mr. R.S. Mathur learned counsel appearing on

behalf of respondent No. 2 has relied upon a recent judgment of this

Court dated 06.07.2009 in W.P.(C) No.9526/2009 titled Vritra Kumar Vs.

Central Bank of India & Ors. Mr. Mathur contends that under identical

circumstances, this Court has already upheld the order of the

Government declining to refer the dispute for adjudication to the Labour

Court. Mr. Mathur has further contended that there is no infirmity in the

impugned order of the Government declining to refer the dispute for

adjudication to the Labour Court because the petitioner was never

employed by respondent No. 2 bank and for that reason, the conciliation

before the Conciliation Officer had failed. The submission of Mr. Mathur is

that it was within the realm of the appropriate Government to examine

the relationship of employer and employee between the parties in order

to satisfy itself whether there exist dispute between them or not which

require adjudication by the Labour Court.

4 I have given my thoughtful consideration to the rival arguments

advanced by learned counsel for the parties. I have also gone through my

own judgment in Vritra Kumar's case (Supra) on which reliance has been

placed by Mr. Mathur appearing on behalf of respondent No. 2 bank. In

my opinion, reliance on Vritra Kumar's case placed by Mr. Mathur is

wholly misconceived. This judgment has no application to the facts of the

present case. In Vritra Kumar's case the reference was declined by the

Government because it had become stale dispute as the workman had

approached the Conciliation Officer after more than 13 years of his

alleged termination whereas in the present case, the petitioner being the

workman had approached the Conciliation Officer aggrieved by his

alleged termination promptly. I also do not find any merit in the

argument of learned counsel appearing on behalf of respondent No. 2

that it was within the realm of the appropriate Government to go into the

question of relationship of employer and employee between the parties

because decision on such a question is certainly adjudicatory in nature.

As and when a dispute regarding termination is raised by the workman

before the Government, what the Government has to see under section

10(1) of the the Industrial Disputes Act, 1947 is whether there exists a

dispute between the parties which require adjudication by the Labour

Court or industrial tribunal. A perusal of the impugned order would show

that the Government had declined to refer the dispute raised by the

petitioner for adjudication to the Labour Court on the ground that he had

not completed 240 days in the year preceding to the year of his

termination. This reason given by the Government declining the

reference, in my opinion, is adjudicatory in nature and is beyond the

competence of the appropriate Government. I am of the considered

opinion that the appropriate Government in this case has exceeded its

jurisdiction in expressing an opinion on a question of fact whether the

petitioner had completed 240 days of service or not. This could not have

been a ground for declining the reference of dispute for adjudication to

the Labour Court. I have no hesitation in holding that the impugned order

of reference suffers from perversity and therefore cannot be sustained in

law.

5 For the foregoing reasons, the impugned order dated 31.10.2005

passed by the Central Government declining to refer the dispute for

adjudication to the Labour Court is hereby set aside. This writ petition is

allowed. The appropriate authority in the Central Government is hereby

directed to reconsider referring of dispute raised by the petitioner for

adjudication to the concerned Labour Court as per law.

AUGUST 24, 2009                                      S.N.AGGARWAL, J
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