The Management Of Shriram ... vs Secretary (Labour), Government ...
2009 Latest Caselaw 5032 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C.) No. 14163/2006

%                  Date of Decision: 07th DECEMBER,2009


#    THE MANAGEMENT OF SHRIRAM INSTITUTE FOR INDUSTRIAL
RESEARCH
                                           .....PETITIONER

!                  Through:   Mr. B.K. Mishra, Advocate.

                                    VERSUS

$   SECRETARY        (LABOUR),   GOVERNMENT       OF   NCT   OF    DELHI    &
ANOTHER

                                                       .....RESPONDENTS

^                  Through:   Ms. Usha Saxena, Advocate.


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 management of Shriram Institute for Industrial Research, in

this writ petition, seeks to assail an order dated 10.07.2006 passed by

the Secretary (Labour) in the Government of NCT of Delhi referring the

dispute raised by the respondent with regard to his termination from the

service of the petitioner for adjudication to the Labour Court.

2. Briefly stated the facts of the case relevant for the disposal of this

writ petition are that the respondent has joined as Assistant Trainee-

Technical Grade 'A' with the petitioner management on 22.08.1988. He

got several promotions from time to time and was working on the post of

Scientist (Research Project) on the date his services were terminated by

the management of the petitioner w.e.f. 04.03.2002. He was aggrieved

by his termination and had filed a Civil Suit being Civil Suit No. 873/2002,

which was dismissed as not maintainable vide judgment and decree

dated 25.01.2005 passed by the Court of Ms. Smita Garg, then Civil

Judge, Delhi. The suit filed by the respondent to get his termination

declared illegal was dismissed by the Civil Judge mainly on the ground

that contract of personnel service is not enforceable in Civil Court in view

of provisions contained in Section 14 (1)(a) read with Section 41(e) of the

Specific Relief Act, 1963.

3. The respondent aggrieved by the order of dismissal of his suit had

filed an appeal being R.C.A. No. 25/2005 which was partly allowed vide

judgment dated 06.07.2005 passed by the Court of Ms. Shail Jain, ADJ,

Delhi. In the appeal order, it was observed that the question whether

appellant is a 'workman' or not, is a point to be decided by the Labour

Court. The respondent thereafter raised an industrial dispute with regard

to his termination which was referred by the Government to the Labour

Court for adjudication vide impugned order of reference dated

10.07.2006. The terms of reference are as under:

"Whether Dr. Anil Kumar Jain S/o Sh. Ajit Parshad Jain holding post of Scientist (SARC) fall under definition of workman as defined in the Section 2(s) of the Industrial Disputes Act, 1947 and if so, whether his services have been terminated by the management illegally and/or unjustifiably and if so, to what sum of money as monetary relief along with other consequential benefits in terms of existing Law/Govt. Notifications and to what other relief is he entitled and what directions are necessary in this respect?"

4. Aggrieved by the order passed by the Government for referring the

dispute to the Labour Court for adjudication, the management has filed

the present writ petition seeking to assail the said order on the following

two grounds:

(i) That respondent is not a 'workman' within the meaning of Section

2(s) of Industrial Disputes Act, 1947.

(ii) That respondent has indulged in forum hunting without any case on

merit in his favour.

5. Mr. B.K. Mishra, learned counsel appearing on behalf of the

petitioner management, has relied upon a Division Bench judgment of

this Court in Jamia Hamdard Vs. Delhi Administration & Others, 1992 (2)

Delhi Lawyer 111, in support of his contention that a person holding the

post of Scientist cannot be treated as 'workman' within the meaning of

Section 2(s) of Industrial Disputes Act, 1947. His contention is that it was

the duty of the Government to have formed an opinion before referring

the dispute for adjudication to the Labour Court whether respondent was

a 'workman' or not within the meaning of Section 2(s) of Industrial

Disputes Act, 1947. It is submitted by Mr. Mishra that the Government

has not considered the plea of the management raised before it that

respondent was not a 'workman' as he was holding the post of Scientist

and was drawing salary of more than Rs.3,500/- per month and was

writing ACR also of persons working under him.

6. On giving my anxious consideration to the above arguments

advanced on behalf of the petitioner, I have not been able to persuade

myself to agree with him. The question that needs consideration in the

present writ petition is not whether the respondent is a 'workman' or not

but the question is whether the Government had exercised it discretion

vested in it under Section 10 of the Industrial Disputes Act, 1947 before

referring the dispute to the Labour Court for adjudication. In the present

case, on going through the record, I find that this aspect of the matter

has been duly considered by the Government before the dispute was

referred to the Labour Court for adjudication. No fault can be found with

the impugned order of reference. The order of the appropriate

Government making a reference under Section 10 of the Industrial

Disputes Act, 1947, is an administrative order and not a judicial or quasi

judicial one and the Court, therefore, cannot convass the reference

closely to see if there was any evidence to support its contention that it

was a judicial or quasi judicial order. Furthermore, an order made by the

appropriate Government under Section 10 of the Act being an

administrative order no lis is involved as such an order is made on the

subjective satisfaction of the Government. Since the reference has

already been made to the Labour Court for adjudication, it will be open to

the petitioner to prove before the Labour Court/Tribunal that respondent

is not a 'workman' within the meaning of Section 2 (s) of the Industrial

Disputes Act, 1947. The question whether respondent is a 'workman' or

not is a mixed question of fact and law and requires evidence in the

matter. If upon evidence, findings on this point are returned in favour or

against any of the parties before the Labour Court/Tribunal, then such a

party will be entitled to challenge such findings in appropriate

proceedings before the competent Court. This Court in exercise of its

writ jurisdiction under Article 226 of the Constitution of India can interfere

with the order of reference passed by the appropriate Government only

in case it is found that the Government has taken into account any

consideration irrelevant or foreign material in referring the dispute under

Section 10 to the Labour Court for adjudication. It may be noted that in

the present case the Appellate Court then presided by Ms. Shail Jain in its

judgment dated 06.07.2005 has made an observation that the question

whether the respondent is a 'workman' or not, shall be decided by the

Labour Court. In view of this observation of the competent Court, it

cannot be said that by any stretch of imagination that the impugned

order of reference passed by the Government suffers from perversity.

For the same reason, I do not find any merit in the argument of the

learned counsel for the petitioner that the respondent has indulged in

forum hunting. This argument has been noted only to be rejected. The

judgment of the Division Bench of this Court in Jamia Hamdard's case

(supra), on which reliance is placed by the petitioner's learned counsel, is

not applicable to the facts of the present case. The decision in that case

was based on the merits of that case. The Division Bench on the basis of

evidence available on record in that case, has held that a highly qualified

research scholar assigned duties similar to that of a teacher cannot be

called a 'workman' within the meaning of Section 2(s) of Industrial

Disputes Act, 1947. In the present case, the evidence is yet to come

about the nature of duties being performed by the respondent from time

to time.

7. For the foregoing reasons, I absolutely do not find any merit in this

writ petition which fails and is hereby dismissed. Needless to say that

the stay granted by this Court vide order dated 08.09.2006 stands

vacated.

DECEMBER 07, 2009                                     S.N.AGGARWAL, J
'BSR '