National Aviation Company Of ... vs Government Of India & Ors
2011 Latest Caselaw 3020 Del

*     HIGH COURT OF DELHI AT NEW DELHI

%                 Judgment delivered on: June 3rd, 2011

+                 W.P.(C) 547/2006

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 3rd




WP(C) 547/2006                                     Page 1 of 19
 October, 2005 under section 10(1) of the Industrial Disputes

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

the Ministry of      Labour i.e Government of India.               The

impugned reference order reads as under:-

           "Whether the termination of the services of
           Shri Mahavir and 14 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 10th October, 2005 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 casuals 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 to consider 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© 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) 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, 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 17th February, 2004. The

petitioner had challenged the same by filing WP© 13581/2004

praying for quashing of the aforesaid order of reference. The

said writ petition was disposed of by this court vide order

dated 3rd May, 2005 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. The counsel for

respondent/UOI further stated that the Government will take

appropriate steps as may be available to it for issuing a fresh

reference. Thereafter, 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

been made in accordance with the order of this court dated 3rd

May, 2005 in WP(C) 13581/2004. 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)

4113/1994 as well as in WP(C) 2644/1997. Accordingly,

counsel for respondent no.1/UOI conceded for quashing of

reference order dated 17/20th February, 2004 issued by the

Government of India, Ministry of Labour wherein reference

was made in respect of demand of the workmen for

reinstatement as well as regularization. It is stated that while

conceding for quashing, counsel for respondent no.1/UOI

made a statement that the Government will take appropriate

steps as may be available for issuing a fresh reference. In

view of the said statement of the parties, the said reference

dated 17/20th February, 2004 was quashed. Respondent

no.1 has denied that the impugned order of reference is in

disregard to the orders of this court as is alleged. The stand

of respondent no.1 is that by reading the order of this court

dated 3rd May, 2005 in WP(C) 13581/2004, it is clear that the

earlier order of reference dated 17/20th February, 2004 was

quashed in the light of statement of counsel for respondent

no.1/UOI that the Government will take appropriate steps for

issuing a fresh reference in respect of adjudication of their

rights for reinstatement alone without including the issue of

regularization. It is stated that the impugned reference is in

accordance with the decision of this court in WP©

13581/2004, 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 employment of casual workmen by

petitioner has undergone an industrial adjudication. It is

further stated that for the first time, the respondent

no.3/workmen had challenged their termination by filing

WP(C) 3343/1999 which was dismissed as withdrawn vide

order dated 29th January, 2002 of this court and liberty was

granted to respondent no.3 to approach the competent

authority. Thereafter respondent no.3 had filed a claim before

the Conciliation Officer. Accordingly the order of reference

dated 17/20th February, 2004 was issued which was

challenged by the petitioner by filing WP(C) 13581/2004

which was quashed by this court vide orders dated 3rd May,

2005 and the present reference is made in compliance of the

said order. It is stated that the present reference is for

adjudication of the rights of the workers for reinstatement

without including the issue of regularization and the reference

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 stated that workers are entitled to

raise an industrial dispute. They had earlier filed WP(C)

3343/1999 which was dismissed as withdrawn wherein liberty

was given to them to approach the competent authority under

the Industrial Disputes Act. In view of the liberty granted by

this court, they had approached the Competent Authority

under the Industrial Disputes Act, wherein order of reference

dated 17/20th February, 2004 was passed which was

challenged by the petitioner by filing another writ petition

being WP(C) 13581/2004. It is stated that the impugned

reference order is in compliance of order of this court dated

3.5.2005 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) 13581/2004

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. It is also contended that vide order dated 29th

January, 2002 of this court in WP(C) no.3343/1999,

respondent no.3 were given liberty to approach competent

authority under the Industrial Disputes Act and respondent

no.3 is availing the said opportunity. It is contended that

said fact is concealed by the petitioner from this court and the

petition is liable to be dismissed on this ground alone itself.

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 the 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 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 the matter 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."

Thereafter workmen had approached Assistant Labour

Commissioner for reinstatement and regularization which

resulted in the Government making a reference for

adjudication vide its order dated 17th/20th February, 2004.

Petitioner had challenged the same by filing another WP(C)

13581/2004 which was disposed of vide order dated 3rd May,

2005 which reads as under:-

WP(C)13581/2004 & CM No.9459/2004

Rule.

With the consent of counsel for the parties I propose to dispose of the present petition.

The present petition is directed against the order of reference dated 17/20th February, 2004 issued by the Government of India, Ministry of Labour. The following dispute was referred for adjudication to the Central Government Industrial Tribunal-cum-Labour Court, New Delhi No.1:-

"Whether the demand of the Delhi Office and Estt. Employees Union for reinstatement and regularisation of Shri Mahavir and 14 others (list enclosed) in the Indian Airlines Ltd. From the date of their initial appointment is legal and justified? If yes, to what relief they are entitled?

Counsel for the petitioner states that the question of regularisation has been adjudicated upon by the Division Bench of this Court in WP(C) No.2644/97 (Gurpal Singh and Ors. Vs. Indian Airlines and Ors.) decided on 21st August, 1998 and the present reference has been made contrary to the orders passed by the Division Bench.

Counsel for the respondent/UOI fairly states that he has no objection to the quashing of the impugned reference since it is contrary to the judgment of the Division Bench. He further states that the Government will take appropriate steps as may be available to them for issuing a fresh reference.

In light of the aforesaid the impugned reference is quashed.

The writ petition stands disposed of. All pending

application also stand disposed of."

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

respondent no. 3 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.

Thereafter, when respondent no. 1 had referred the dispute

raised the Authority under the I.D.Act for adjudication,

petitioner-management challenged the said action by filing

WP(C) 13581/2004 by contending that no cause of action

survives in their favour as their services were terminated

pursuant to the order passed in WP(C) 4113/1994. In the

aforesaid petition, 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 stated

that Government will take appropriate steps as may be

available to them for issuing a fresh reference. In the light of

submissions of counsel for the parties, the earlier order of

reference dated 17/20th February, 2004 challenged in the said

petition was quashed.

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 3rd May, 2005 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) 13581/2004 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 3.5.2005.

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. Petitioner

has also concealed in this petition about factum of filing of

earlier WP(C) 3343/1999 by respondent no.3/workmen which

had been dismissed as withdrawn wherein liberty was granted

to respondent no.3 to approach the Competent Authority

under the I.D.Act.

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 3rd, 2011 ssb