The Management Of Aashlok Nursing ... vs Ms Usha Panicker
2009 Latest Caselaw 2936 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  W.P.(C) No. 6428/2008

%                  Date of Decision: 30 July, 2009


# The Management of Aashlok Nursing Home Private Ltd.
                                                ..... PETITIONER
!            Through: Mr. Sandeep Sharma, Advocate

                                VERSUS

$ Ms. Usha Panicker
                                                    .....RESPONDENT

^                  Through: Mr. H.S. Thukral, Advocate.

CORAM:
Hon'ble MR. JUSTICE S.N. AGGARWAL

1. Whether reporters of Local paper may be allowed to see the judgment? NO

2. To be referred to the reporter or not?NO

3. Whether the judgment should be reported in the Digest?NO

S.N.AGGARWAL, J (ORAL) M/s. Aashlok Nursing Home Private Limited, who has filed this writ

petition, is the management. The respondent was appointed by the

petitioner as Staff Nurse and in the course of her employment, she was

promoted to the post of Senior Nurse. She was terminated by the

petitioner after about 18 years of service vide termination letter dated

22.06.2007. She raised an industrial dispute with regard to her

termination which was referred by the appropriate Government for

adjudication to the Labour Court.

2. Before the Labour Court, the petitioner filed an application under

Order 7 Rule 11, CPC for rejection of the reference on the ground that the

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

Industrial Disputes Act, 1947. The Labour Court vide its impugned order

dated 08.08.2008 dismissed the petitioner's application under Order 7

Rule 11, CPC relying upon certain judgments referred in the said order.

The Court did not go into the question as to whether the respondent is a

workman within the meaning of Section 2(s) of the Industrial Disputes

Act, 1947. This question is yet to be decided by the Labour Court. The

petitioner management wants that the question as to whether the

respondent is a workman or not should be decided as a preliminary issue.

This request made on behalf of the management cannot be accepted

because the petitioner contends that the nature of duties performed by

the respondent were of supervisory nature and falls in the category of

managerial functions which excludes her from the definition of workman

as provided in Section 2(s) of the Industrial Disputes Act, 1947.

3. On the other hand, the respondent contends that she is a workman

and because of the nature of duties performed by her with the petitioner

management, she cannot be excluded from the definition of workman

under Section 2(s) of the Industrial Disputes Act, 1947. These

contentions urged by both the parties makes the question as to whether

the respondent is a workman or not, a disputed question of fact which

cannot be decided in the absence of evidence to be adduced by the

parties regarding the nature of duties performed by the respondent. The

issue whether the respondent is a workman or not cannot be ordered to

be decided as a preliminary issue because it will unnecessarily delay the

adjudication of reference pending before the Labour Court. The labour

disputes need to be adjudicated expeditiously and in case more than one

issue arises out of the reference, then the decision on all those issues

should be given together to avoid delay in the final decision of the

reference.

4. For the foregoing reasons, I do not find any illegality or perversity in

the impugned order that may call for an interference by this Court in

exercise of its extraordinary discretionary writ jurisdiction under Article

226 of the Constitution of India. This writ petition, therefore, fails and is

hereby dismissed. All pending miscellaneous applications also stand

disposed of.

JULY 30, 2009                                    S.N.AGGARWAL, J
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