Delhi High Court
Workmen As Represented By Mcd ... vs Union Of India on 8 April, 2015
Author: V.P.Vaish
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 08th April, 2015
+ W.P.(C) 6576/2014
WORKMEN AS REPRESENTED BY
MCD GENERAL MAZDOOR UNION ..... Petitioner
Through: Mr. Varun Prasad, Advocate.
versus
UNION OF INDIA .....Respondent
Through: Mr. Akash Vajpai, Advocate.
CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH
VED PRAKASH VAISH, J. (ORAL)
1. By this petition under Articles 226 and 227 of the Constitution
of India the petitioner impugns order bearing F.No.L-42011/113/2012-
IR(DU) dated 09.04.2014 passed by Section Officer, Ministry of
Labour and Employment, Government of India whereby it was
observed that the matter raised by the Union cannot be considered for
adjudication.
2. Mr. Akash Vajpai, Advocate accepts notice on behalf of
respondent and submits that he does not want to file reply/ counter
affidavit.
3. With the consent of learned counsel for the parties, the matter is
taken up for final disposal.
4. Learned counsel for the petitioner urges that on 21.11.2011 the
petitioner made a representation to the MCD requesting for merger of
supervisory post i.e. Sr. Field Worker with Assistant Malaria Inspector
w.e.f. 01.01.1996. Thereafter, the petitioner filed statement of claim
before the Regional Labour Commissioner (Central), New Delhi which
culminated into impugned order dated 09.04.2014 whereby it was
decided that the matter raised by the Union cannot be considered for
adjudication.
5. The only grievance of the petitioner is that the petitioner had
approached the respondent for making a reference of the industrial
dispute raised by him in respect of merger of supervisory post i.e. Sr.
Field Worker into the category of Assistant Malaria Inspector,
however, the respondent vide impugned order dated 09.04.2014 had
illegally refused to make the reference on the ground that claim of the
petitioner seems to be not justified and that too after a lapse of 16½
years.
6. In „Telco Convoy Drivers Mazdoor Sangh and Anr. vs. State
of Bihar and Ors.‟, (1989) 3 SCC 271, the Apex Court observed as
under: -
"11. It is true that in considering the question of making
a reference under Section 10(1), the government is
entitled to form an opinion as to whether an industrial
dispute "exists or is apprehended", as urged by Mr.
Shanti Bhushan. The formation of opinion as to whether
an industrial dispute "exists or is apprehended" is not the
same thing as to adjudicate the dispute itself on its merits.
In the instant case, as already stated, the dispute is as to
whether the convoy drivers are employees or workmen of
TELCO, that is to say, whether there is relationship of
employer and employees between TELCO and the
convoy drivers. In considering the question whether a
reference should be made or not, the Deputy Labour
Commissioner and/ or the government have held that the
convoy drivers are not workmen and, accordingly, no
reference can be made. Thus, the dispute has been
decided by the government which is, undoubtedly, not
permissible.
xxxx xxxx xxxx
16. It has been already stated that we had given one
more chance to the government to reconsider the matter
and the government after reconsideration has come to the
same conclusion that the convoy drivers are not workmen
of TELCO thereby adjudicating the dispute itself. After
having considered the facts and circumstances of the case
and having given our best consideration in the matter, we
are of the view that the dispute should be adjudicated by
the Industrial Tribunal and, as the government has
persistently declined to make a reference under Section
10(1) of the Act, we think we should direct the
government to make such a reference. In several
instances this Court had to direct the government to make
a reference under Section 10(1) when the government
had declined to make such a reference and this Court was
of the view that such a reference should have been made.
See Sankari Cement Alai Thozhilalar Munnetra Sangam
vs. Government of Tamil Nadu; Ram Avtar Sharma v.
State of Haryana; M.P. Irrigation Karamchari Sangh v.
State of M.P.; Nirmal Singh v. State of Punjab."
7. Learned counsel for the respondent submits that in view of the
aforesaid decision in Telco Convoy Drivers Mazdoor Sangh's case
(supra) the matter can be remanded back to the concerned authority for
passing a fresh order.
8. In view of the facts and circumstances of the case and the law
laid down in Telco Convoy Drivers Mazdoor Sangh's case (supra)
the matter is remanded back to the respondent Union to reconsider the
matter and pass a fresh order keeping in view the law laid down in the
aforesaid judgment expeditiously and preferably within a period of two
months from today.
9. The petition stands disposed of accordingly.
(VED PRAKASH VAISH)
JUDGE
APRIL 08th, 2015
hs
