Head Quarter Delhi Area (Army) & ... vs Union Of India & Ors
2010 Latest Caselaw 2268 Del

                  *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             W.P.(C) 2506/1997

%                                                  Date of decision: 28th April, 2010

HEAD QUARTER DELHI AREA (ARMY) & ANR.                 ..... Petitioner
                 Through: Mr. Sanjeev Sachdeva, Advocate.

                                          versus

UNION OF INDIA & ORS                                                ..... Respondents
                   Through:                  Mr.V.N. Jha, Advocate for the legal heirs
                                             of respondent no.3.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers 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                   NO
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner impugns the order dated 9th April, 1997 of the Appropriate

Government referring the dispute of legality/validity of termination of the service by

the petitioner of its employee Inder Narain to the Industrial Tribunal. It is the

contention of the petitioner that the said employee was employed in a printing press

functioning on no profit no loss basis to undertake the jobs the printing jobs for

military units and servicemen/ ex service personnel in Delhi Cantt as well as to those

located outside Delhi. The petitioner thus contended that it was not an "industry" for

the appropriate government to make a reference of the dispute to the Industrial

Tribunal.

2. This court vide order dated 21st July, 1997 which continues to be in force

stayed further proceedings before the Industrial Tribunal. Rule was issued in the

petitioner on 2nd August, 2000. The matter came up for hearing on 9th April, 2010.

The counsel for the petitioner contended that there are only two issues for

adjudication in this petition. Firstly, as to whether Head Quarters, Delhi Area

Printing Press is an industry or not. The argument is that since the said printing

press functions on no profit basis and is a welfare measure for the retired

employees of the Army, it is not an industry. The counsel is however unable

to dispute that the Supreme Court in Bangalore Water Supply and Sewerage

Board Vs. A. Rajappa AIR 1978 SC 548 has held that the profit motive is

irrelevant for the purpose of determining the status as "industry". The counsel

however states that the Supreme Court in State of U.P. Vs. Jai Bir Singh

2005 5 SCC 1 has referred this question to a larger bench and which reference

is still pending. The second aspect for adjudication is as to the effect, if any,

of the dismissal for non prosecution of the reference made by the Delhi

Government also of the dispute raised by the respondent no.3 workman. It is

stated that the respondent no.3 had approached the Central Government as

well as the Delhi Government with respect to the same dispute and both

governments had made a reference. The present petition is with respect to the

reference of the dispute made by the Central Government and by interim order

in the present petition, the further proceedings before the CGIT were stayed.

However, the respondent no.3 did not pursue the dispute referred by Delhi

Government and which was dismissed for non prosecution by the Labour

Court. The counsel for the petitioner contends that the effect of the dismissal

for non prosecution of the reference made by the Delhi Government will have to

be seen. However, on that date i.e. 9th April, 2010 a possibility of amicable

settlement appeared and the parties were given an opportunity for the same.

3. The counsel for the petitioner has today informed that the petitioner has no

funds of its own and sanction for settlement will have to be obtained from the

Ministry and it will be a long drawn process with uncertain result. In the

circumstances, no settlement is possible.

4. The contentions of the counsel for the petitioner have already been dealt with

in the order dated 9th April, 2010. This order be read in continuation of order of that

date. As far as the first contention as noted above of the petitioner is concerned, it

is not controverted that as the law exists today (as declared in Bangalore Water

Supply and Sewerage Board Vs. A. Rajappa) the petitioner is an industry and the

reference to the Industrial Tribunal is maintainable.

5. As far as the second contention of the petitioner is concerned, of the effect of

the dismissal for non prosecution of the reference made by the Delhi Government,

the same will not bar the decision of the reference of the Central Government. The

counsel for the petitioner has fairly conceded on this aspect also.

6. There is thus no merit in the petition. The interim order in these proceedings

of stay of further proceedings before the Industrial Tribunal is vacated. The parties

to appear before the Industrial Tribunal on 20th July, 2010. The Industrial Tribunal

to dispose of the matter expeditiously.

The respondent workman no.3 died during the pendency of this writ petition

and his legal heirs were substituted. The legal representatives of the respondent

workman substituted in this writ petition shall be deemed to have been substituted in

the proceedings before the Industrial Tribunal also.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 28th April, 2010 M