National Aviation Company Of ... vs Government Of India & Ors
2011 Latest Caselaw 3006 Del

*     HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment delivered on: June 3rd, 2011

+                 W.P.(C) 9240/2006

National Aviation Company of India Ltd(NACIL)..... Petitioner
                      Through:Mr.Lalit Bhasin with Ms. Ratna
                       Dhingra & Ms.Shreya Sharma,Advocates

                       -versus-


Government of India & Ors                 ..... Respondents
                     Through:Mr.Sachin Datta with
                     Mr. Abhimanya Kumar, Advocates
                     for respondent no.1.
                     Mr. Ashok Agarwal with Mr.Anuj
                     Agarwal for respondent no.3.

CORAM:-
HON'BLE MS. JUSTICE VEENA BIRBAL

1.    Whether the Reporters of local papers 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 Digest? Yes


Veena Birbal, J

1.        By way of this petition under Article 226 and 227 of

the Constitution of India, petitioner has prayed for issuance of

a writ in the nature of certiorari or any other appropriate writ

seeking quashing of impugned order of reference dated 23rd




WP(C) 9240/2006                                    Page 1 of 17
 January, 2006 issued under section 10(1) of the Industrial

Disputes Act, 1947 (hereinafter referred to as `the I.D Act')

by the Ministry of Labour, Government of India, i.e., the

respondent no.1.       The impugned reference order reads as

under:-

           "Whether the termination of the services of
           Shri Om Prakash and 17 others by the
           Management of Indian Airlines Ltd. is legal and
           justified? If not, to what relief they are entitled
           to?"


       Petitioner has also challenged the subsequent notice

dated 7th February, 2006 issued in the aforesaid reference by

Central Govt. Industrial Tribunal-cum-Labour Court, New Delhi

i.e. respondent no.2.       Respondent no.3 is the employees

union representing the workmen.

2.    Background

of the case as alleged in the petition is as

under:-

In order to fill up certain vacancies on regular basis in

the category of Helper (Engg.), Helper (Stores), Helper

(Commercial) etc, a notification was issued in the year 1988-

1989 inviting applications for the same and panels were

prepared in the year 1990 after following the provisions of

Recruitment & Promotion Rules of Indian Airlines Ltd. The

validity of these panels was for a period of two years and the

candidates were offered appointment in terms of their merit

on the panel as and when the vacancies arose. The validity of

panels finally expired on 15.7.1994. In the year 1994-95, a

large number of writ petitions were filed by different

categories of casual workers praying for regularization of their

services in Indian Airlines Ltd. On 7th December, 1995, in

CWP No. 4113/94 titled S.K. Saini and Indian Airlines Ltd. i.e.

this court vide its interim order dated 7.12.95 directed the

petitioner to prepare a panel for engaging casual workers on

a daily rated basis in different categories from amongst the

casuals who had worked with petitioner on daily rated basis.

Pursuant to the said order, panels were formed and the

petitioner started engaging workers from those panels. On 9th

May, 1997, the aforesaid writ petition was disposed of along

with other connected writ petitions wherein petitioner was

directed to engage casuals on a daily rated basis as per its

requirement firstly from the panel prepared and approved on

20th November, 1990, as such, persons engaged on a daily

rated basis pursuant to the interim order dated 7th December,

1995 had to be discontinued and the persons whose names

were borne on the panel formulated in the year 1990 were

offered appointment on casual basis. Subsequently, SLP

being SLP No. 16392-16399/97 were filed by the workers

challenging the aforesaid order. The same was dismissed by

the Supreme Court on 15th September, 1997.

Thereafter, another batch of 25 writ petitions was filed

by the casual workers in the year 1997-98 praying for

regularization wherein WP(C) 2644/1997 was the lead case.

The claim of the workers in the said petitions for

regularization was dismissed vide order dated 21st August,

1998. By the said order, this court also directed the petitioner

that the persons who have been continuously been engaged

on casual daily rated basis by virtue of interim order or

otherwise be given an opportunity of being considered for

regular appointment at the time when petitioner would like to

fill regular vacancies and persons getting over age for

selection be given relaxation in age. The workers challenged

the aforesaid order by filing Special Leave Petitions before the

Supreme Court which were also dismissed vide order dated

28th November, 1998. It is stated that another writ petition

being WP(C) 4799/1997 was filed by Sh. J.D.Biswas before

this court challenging his disengagement as a casual. The

same was dismissed by this court vide order dated 10th

September, 1999.

The case of the petitioner is that despite the decisions

of this court in WP(C) No.4133/1994-S.K.Saini Vs. UOI & Ors

and WP(C) No.2644/1997-Gurpal Singh Vs. UOI & Ors and

WP(C) No.4799/1997-J.D.Biswas Vs. Indian Airlines,

respondent no.3 had made representation on behalf of the

workers to the Assistant Labour Commissioner for

reinstatement and regularization which resulted in the

Government making a reference for adjudication vide earlier

order dated 22.11.2000. The petitioner had challenged the

same by filing WP(C) 2019/2001 praying for quashing of the

aforesaid order of reference. The said writ petition was

disposed of by this court vide order dated 20.09.2004 on the

statement made by counsel for respondent/UOI that he had

no objection to the quashing of the said reference as the same

was contrary to the judgment of the Division Bench of this

court in WP(C)2644/1997 (Gurpal Singh and Ors v. Union of

India). It is alleged that despite the aforesaid order, the

Government has issued the impugned order of reference

dated 3rd October, 2005 which is already reproduced above.

The case of the petitioner is that the aforesaid reference is

bad in law as the dispute raised by workmen represented by

respondent no.3 has already been adjudicated upon by this

court in WP(C) nos.4133/1994-S.K.Saini Vs. UOI & Ors,

2644/1997-Gurpal Singh Vs. UOI & Ors and 4799/1997-

J.D.Biswas Vs. Indian Airlines.

3. Respondent no.1 i.e. Union of India has opposed the

present writ petition by filing a counter affidavit. The stand of

respondent no.1 is that the impugned reference order has

nothing to do with the earlier reference order dated

22.11.2000 which was challenged in WP(C) No.2019/2001. It

is stated that in the aforesaid writ petition, counsel for

petitioner had raised an objection that the question of

regularization has already been adjudicated by the Division

Bench of this court in WP(C) 2644/1997. As the said

reference was for regularization, counsel for respondent

no.1/UOI conceded for quashing of the same. It is stated that

the impugned reference is in accordance with the order of this

court dated 20.09.2004 in WP(C) No.2019/2001 wherein this

Court had quashed the reference subject to the condition that

the government will take appropriate steps for issuing a fresh

reference as per the demand of workmen concerned, i.e., for

adjudication of their rights for reinstatement alone without

including the issue of regularization. Respondent no.1 has

denied that the impugned order of reference is in disregard to

the orders of this court as is alleged. It is stated that the

impugned reference is in accordance with the decision of this

court in WP(C)2019/2001, as such, it may be allowed to go to

the Labour Court for adjudication. It is further stated that at

no point of time issue related to termination of casual

workmen by petitioner has undergone an industrial

adjudication. It is contended that the impugned order is legal

and valid and does not call for any interference of this court.

4. The respondent no.3/union representing the workers has

also filed counter affidavit wherein it is alleged that

termination of workers is unjustified, illegal and contrary to

the orders passed by this court from time to time. It has

taken the same stand as is taken by respondent no.1/UOI in

its counter affidavit. It is alleged that workers are entitled to

raise an industrial dispute about their alleged illegal

termination. It is contended that few workers had earlier filed

WP(C) 3343/1999 challenging their termination which was

dismissed as withdrawn wherein liberty was given to them to

approach the competent authority under the Industrial

Disputes Act. The workers had also approached the

Competent Authority for redressal of their grievances under

the Industrial Disputes Act, wherein order of reference dated

22.11.2000 was passed which was challenged by the

petitioner by filing writ petition i.e. WP(C) 2019/2001. It is

stated that the impugned reference order is in compliance of

order of this court dated 20.09.2004 passed in aforesaid writ

petition as the question of regularization has been dropped in

the present terms of reference.

5. The main contention of learned counsel for petitioner is

that the impugned reference is bad-in-law and needs to be set

aside as the dispute referred has already been decided by the

Division Bench of this court in WP(C) 4113/1994 & 2644/1997

and the Single Bench in WP(C) 4799/1997. It is further

contended that respondent no.1 in WP(C) 2019/2001 wherein

earlier reference order was challenged had conceded that the

issue of regularization and reinstatement of the workmen is

contrary to the decisions of this court, as such the present

reference is not maintainable. It is further contended that

workmen represented by respondent no.3 were engaged

pursuant to the directions of this court purely on daily rated

basis and their disengagement was also pursuant to the

directions of this court, as such no dispute exists and no

reference could have been made by respondent no.1 for

adjudication.

6. The stand of respondent no.1/UOI and workmen

represented by respondent no.3 is that there has never been

any adjudication of dispute of the workmen relating to their

termination/reinstatement. It is further contended that

purpose of filing the present petition is to delay the

adjudication of disputes which is pending before the Industrial

cum Labour Tribunal i.e appropriate forum for proper

adjudication.

7. I have heard learned counsel for the parties and perused

the material on record.

8. It is an admitted position that termination of service of

workmen represented by respondent no. 3 has not been

adjudicated in any forum. Earlier few workmen represented

by respondent no.3 had directly filed a WP(C) 3343/1999

before this court wherein prayer was made for declaring the

action of the petitioner in terminating the services of 81

workers named in Annexure-C annexed with the said petition

and other similarly situated workers engaged during the year

1997-98 and by replacing them with fresh hands as arbitrary

and discriminatory and further prayer was made for

reinstatement of the aforesaid workers. In the said petition,

petitioner-management had filed a counter affidavit and it was

contended that if the workmen were aggrieved, they should

proceed under the I.D. Act which provides the appropriate

forum for the alleged grievances and that the said petition

was not maintainable as the same was an attempt to

circumvent and overreach the due process of law by invoking

jurisdiction of this court. On merits, the stand taken was that

petitioner-workmen therein were not entitled for relief of

reinstatement with back wages as this court vide its judgment

dated 9th May, 1997 in WP(C) 4113/1994 had directed the

petitioner to engage casuals according to their merits from

pre-existing select panel prepared for regular posts, as such,

petitioner-workmen could not be engaged as they were not

from pre-existing panels.

After completion of pleadings, when WP(C) 3343/1999

was listed for hearing, this court vide its order dated 29th

January, 2002 dismissed the said petition as withdrawn. The

said order reads as under:-

"After some hearing, learned counsel for the petitioner seeks leave to withdraw the petition with liberty to approach the competent authority under the Industrial Disputes Act. Liberty granted. Petition is dismissed as withdrawn."

The workmen had also approached Assistant Labour

Commissioner for regularization which resulted in the

Government making a reference for adjudication vide its order

dated 22.11.2000. Petitioner had challenged the same by

filing WP(C) 2019/2001 which was disposed of by this Court

vide order dated 20.09.2004 which reads as under:-

"Learned counsel for the Central Government says that the reference order made on 22nd November, 2000 may be quashed because it is contrary to the judgment of the Division Bench of this Court in CW 2644/97 (Gurpal Singh & Ors v. Indian Airlines & Ors) decided on 21st August, 1998.

In view of the statement of learned counsel for the Central Government, that has been made on instructions, the impugned reference is quashed.

Learned counsel for Respondent No.4 says that as per his instructions the aforesaid judgment of the Division Bench of this Court is not being implemented and that he would like to take steps in this regard. There is no prohibition against Respondent No.4 in taking such steps as permitted by law. However, for the record, learned counsel for the Petitioner says that as far as he is instructed, the judgment is being implemented.

The writ petition stands disposed of.

CM 3478/2001 & CM 1282/2003."

In view of the above, it is seen that earlier few workmen

had directly approached this court for redressal of its

grievance by filing writ petition i.e. W.P.(C) 3343/1999 under

Article 226 of the Constitution of India challenging their

termination and had prayed for reinstatement with back

wages. In the said writ petition, the stand of the petitioner-

management was that appropriate forum for them was to

raise an Industrial Disputes Act and accordingly that petition

was dismissed as withdrawn and liberty was granted to the

respondent-workmen to approach the competent authority

under the Industrial Disputes Act. The workmen had also

approached Assistant Labour Commissioner for redressal of

their grievances which resulted in reference of the disputes for

adjudication vide order dated 22.11.2000. The petitioner-

management challenged the same by filing WP(C) 2019/2001

wherein counsel for the petitioner had also contended that the

question of regularization has been adjudicated upon by the

Division Bench of this court in WP(C) No.2644/97 vide

judgment dated 21st August, 1998, as such reference was

contrary to the order passed by the Division Bench of this

court. Thereupon, counsel for respondent/UOI agreed for

quashing of the impugned reference and accordingly the said

petition was disposed of.

9. The impugned order of reference dated 3rd October,

2005 which is now under challenge is the fresh reference

order which has been issued by respondent no.1/UOI after the

order of this court dated 20.09.2004 which has been

reproduced above and the dispute of regularization has been

deleted from the impugned order of reference. The dispute

which is now referred for adjudication is only about alleged

illegal termination of workmen. In the earlier order of

reference challenged vide WP(C) 2019/2001 the petitioner

had raised an objection about reference of dispute by

respondent no.1 about regularization only by contending that

the same has been adjudicated by the Division Bench of this

court in W.P.(C) No. 2644/97 as is reflected from the order

dated 20.09.2004.

10. The stand of respondent nos. 1 & 3 is that petitioner

is remixing the issue of termination of the workmen with issue

of regularization in service. Their further stand is that in the

garb of order passed in WP(C) 4113/1994 their services have

been terminated. Petitioner has not placed on record any

record concerning the workmen of present case including their

appointment letters/termination letters etc. Learned counsel

for respondent no.3 has also submitted that workers

represented by it were not party in the earlier petitions i.e.

writ petition nos. 4113/94, 4799/94 and 2644/97.

11. Respondent no.1/Government after fully satisfying

itself that prima facie there exists an industrial dispute has

made a reference to the Central Government Industrial

Tribunal. It is not the case of the petitioner that there was no

material before the Government about its satisfaction. The

workers had also taken a plea before Conciliation Officer that

petitioner had not prepared a seniority list and were violating

the order of this court. Their stand was that the petitioner

had exhausted the panel of 1990 and people from outside

were being engaged. Their further stand was that they have

a right to be considered first before outsiders were engaged.

They had also taken a stand that petitioner had failed to

comply with the order of this court in W.P.(C) 2644/1997

wherein directions had also been given to petitioner for

considering casual workers therein as well as other similarly

placed persons who had been engaged on daily rated by

interim order or otherwise be given an opportunity of being

considered for regular appointment at the time when the

petitioner would like to fill regular vacancies. Their further

stand is that petitioner has vacant posts and they are

employing fresh hands taking the advantage of orders passed

in WP(C) No. 4113/1994. In WP(C) 4799/1997, a casual

employee had challenged his termination by filing a petition

under Article 226 of the Constitution of India. The effect of

the said judgment will be seen by the Tribunal. Whether the

contentions raised are correct or not are required to be

examined by the Tribunal. It will not be proper for this court

to take up the job of Tribunal while exercising the jurisdiction

under Article 226. It will be open to the petitioner to raise all

the pleas before the Tribunal which are raised before this

court.

12. The cases of these types are governed by their own

facts and circumstances. The judgments relied upon by

petitioners are not applicable to the peculiar facts and

circumstances of this case as such are not discussed herein.

13. In WP(C) 3343/1999, the stand of the petitioner was

that to circumvent the proceedings, respondent/workmen had

approached this court. Now it will not be open for the

petitioner to contend that there is no existence of a prima

facie dispute. However, I need not express my opinion and

the Tribunal will examine now the contentions in this regard.

14. Keeping in mind the totality of the facts and

circumstances of the case, it is appropriate that petitioner-

management appear before the said Tribunal and file

appropriate reply/documents in support of its stand. It will be

open to the petitioner to take all the pleas which are raised in

the present petition before the said Tribunal where the matter

has been referred for adjudication.

15. The writ petition stands dismissed. The stay of further

proceedings granted by this court during the pendency of

present petition, stands vacated. There is no order as to

costs.

VEENA BIRBAL, J.

June 3, 2011 ssb