Manav Bharti India International ... vs Govt. Of N.C.T. Of Delhi & Anr.
2011 Latest Caselaw 3976 Del

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   *                IN THE HIGH COURT OF DELHI AT NEW DELHI
+          W.P.(C) 6055/2008
           MANAV BHARTI INDIA
           INTERNATIONAL SCHOOL                  ..... Petitioner
                       Through: Mr. Keshav Ranjan, Adv.
                                      Versus
           GOVT. OF N.C.T. OF DELHI & ANR.    ..... Respondents
                           Through: None.
           CORAM:
           HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

                                    ORDER

% 16.08.2011

1. The process fee filed by the petitioner for service of the respondent No.2 workman remained under objection. The counsel for the petitioner states that the respondent No.2 workman has already been proceeded ex parte. However a perusal of the order sheet shows that though the respondent No.2 workman was proceeded against ex parte on 23rd October, 2009 but the said order was recalled on the very next date i.e. 5 th March, 2010 and the petitioner was directed to serve the respondent No.2 workman. The petitioner since then has not been able to serve the respondent No.2 workman.

2. The writ petition has been filed impugning the order dated 28 th May, 2008 of the "appropriate government" within the meaning of the Industrial Disputes Act, 1947 referring the dispute raised by the respondent No.2 workman for adjudication to the Industrial Adjudicator.

3. Though notice of the writ petition was issued but the application for stay of proceedings before the Industrial Adjudicator was dismissed as not pressed on 22nd August, 2008. However, on 23rd October, 2009 while proceeding ex parte against the respondent No.2 workman and which order as aforesaid was recalled subsequently, the record of the Industrial Adjudicator was requisitioned and which was received in this Court and remains in this Court, virtually staying the proceedings before the Industrial Adjudicator.

4. A perusal of the record received shows that the evidence of the parties stood concluded and the matter is at the stage of final arguments and which arguments could not be heard for the reason of the record having been requisitioned in this Court.

5. This Court in The Management of Sterling Hi-tech Ltd. Vs. Govt. of NCT of Delhi MANU/DE/2138/2011 on conspectus of the case law in this regard has held that maintainability of the challenge to reference cannot be entertained and the remedy is to challenge the reference along with the challenge against the award if against the employer.

6. The challenge by the petitioner / employer to the reference is inter alia on the ground of the remedy before the Delhi School Tribunal being available to the respondent No.2 workman.

7. However, as aforesaid it is not deemed expedient to keep this matter pending before this Court and the writ petition is dismissed with liberty to the petitioner to, if aggrieved from the award, challenge the same also on the grounds as taken in this writ petition.

8. The record of the Industrial Adjudicator received in this Court be forthwith returned to the Industrial Adjudicator.

9. The petitioner to appear before the Industrial Adjudicator on 6 th September, 2011. The Industrial Adjudicator is requested to dispose of the matter expeditiously.

No order as to costs.

RAJIV SAHAI ENDLAW, J AUGUST 16, 2011 „gsr‟