Delhi High Court
Umesh Kumar vs Union Of India & Others on 14 May, 2010
Author: Rajiv Sahai Endlaw
..*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1430/2008
% Date of decision: 14th May, 2010
UMESH KUMAR ..... Petitioner
Through: Mr. Anuj Aggarwal, Advocate.
Versus
UNION OF INDIA & OTHERS ..... Respondents
Through: Ms. Meera Bhatia, Advocate for UOI.
Mr. Arun Birbal, Advocate for R-2.
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 workman by this petition impugns the order dated 27th
November, 2007 of the respondent no.1 UOI, acting as the appropriate
Government under Section 10 of the Industrial Disputes Act, 1947, refusing to
refer for adjudication to the Industrial Tribunal/Labour Court the dispute raised
by the petitioner workman with the respondent no.2 DDA. The reason given for
such refusal is
"Cessation of the services of the claimant came to an end
consequent on his resignation vide his letter dated 11.12.1999 and
hence the matter raised cannot be construed as an "industrial
dispute"."
2. While the respondent no.2 DDA had contended that the petitioner had
resigned from employment, the petitioner workman had before the Conciliation
Officer disputed the said fact. The petitioner workman had in this regard relied
upon the public notices got published by the respondent no.2 DDA in the
newspapers asking him to rejoin duty. The contention of the counsel for the
petitioner workman is that if the case set up by the respondent no.2 DDA of the
petitioner workman having resigned on 11th December, 1999 was correct there
was no occasion for publication of the said notices in the newspaper on 28th
April, 2002. The case of the petitioner workman is that after the said notices the
respondent no.2 DDA terminated his services without holding any inquiry and
which makes the said order of termination bad.
3. The counsel for the respondent no.2 DDA has contended that the
petitioner workman has neither in the pleadings before the Conciliation Officer
nor before this court controverted the letter of resignation. It is thus contended
that the appropriate Government was correct in refusing to refer the dispute since
the petitioner workman has admitted the resignation. It is further contended that
in view of the resignation, no inquiry was necessary. It is also contended that the
letter of appointment relied on by the petitioner workman is forged and
fabricated.
4. Even if it were to be held that the petitioner workman has not controverted
the letter of resignation, the issuance of the public notices thereafter on 28th
April, 2002 asking the petitioner workman to rejoin duty indicates that the
resignation even if any was not accepted by the respondent no.2 DDA. In any
case, all the said issues are matters to be adjudicated upon, not by this court, but
by an Industrial Tribunal or Labour Court.
5. The petitioner has in the writ petition itself relied on:
A. Telco Convoy Drivers Mazdoor Sangh. vs. State of Bihar (1989) 3 SCC
271 laying down that the appropriate Government is only entitled to
form an opinion as to whether the Industrial Dispute exists or is
apprehended and is not entitled to adjudicate the dispute itself on merits.
B. Ram Avtar Sharma Vs. State of Haryana AIR 1985 SC 915 holding
that the appropriate Government cannot delve into the merits of the
dispute and take upon itself the determination of lis.
C. MP Irrigation Karamchari Sangh Vs. State of MP AIR 1985 SC 860
laying down that the appropriate Government in exercise of powers under
Section 10 of the ID Act has limited jurisdiction to examine patent
frivolousness of the demands and adjudication of the demands of the
workmen should be left to the Tribunal to decide.
6. I may notice that the Supreme Court recently in Sarva Shramik Sangh
Vs. Indian Oil Corporation Ltd. (2009) 11 SCC 609 has held that the reference
of dispute to Industrial Tribunal in exercise of powers under Section 10(1) of the
ID Act is an administrative and not a judicial or quasi judicial function; the
Government cannot consider merits of the dispute and decide a lis; only where
the demand is frivolous or perverse, reference can be denied. In that case the
writ of mandamus was issued directing the Government to reconsider the refusal
to make a reference.
7. In the present case, even if the letter of resignation is uncontroverted by
the petitioner workman, nevertheless the respondent no .2 DDA is to explain the
circumstances in which inspite of the resignation the public notices aforesaid
were issued. It thus cannot be said that the dispute raised by the petitioner
workman is frivolous or that his demand is perverse.
8. The order impugned of the appropriate Government thus cannot be
sustained. The writ petition is allowed. Mandamus is issued to the respondent
no.1 UOI to, within three months of today, reconsider the refusal of the reference
and to take an appropriate decision on the request of the petitioner for reference
of dispute to the industrial adjudicator. The writ petition is disposed of.
However, nothing contained herein to be deemed to be an expression of opinion
on the merits of the dispute. Parties are left to bear their own costs.
RAJIV SAHAI ENDLAW
(JUDGE)
14th May, 2010
M
