Delhi High Court

Brij Mohan vs Presiding Officer Labour Court & ... on 17 April, 2015

Author: Deepa Sharma

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     W.P.(C) 2960/2005
                                   Judgment reserved on: 10.04.2015
                                   Judgement pronounced on: 17.04.2015

      BRIJ MOHAN                                            ..... Petitioner
                          Through:      Mr.Rajender Pathak, Advocate

                          versus

      PRESIDING OFFICER LABOUR COURT & ORS ...... Respondents
                    Through: Ms Raavi Birbal, Advocate

CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA

JUDGMENT

1. Vide the present writ petition, the petitioner has challenged the award

dated 22nd August, 2003 whereby the Labour Court has held that petitioner

was not an employee of the management and that there existed no

relationship of employer and employee between them and that the Delhi

Government had no jurisdiction to send the reference because the

appropriate Government, in relation to the respondent, was the Central

Government. Thus, the reference had been answered against the petitioner.

2. The brief facts of the case are as under:-

3. The case of the workman was that he joined the management in 1981

as a casual labour to clean the gas cylinders and worked with the company

upto the year 1985. He was retained in 1986 only for 50 days. From the

period 1st July, 1986 to 10th January, 1987, he was shown as an employee of

Daulat Ram Contractor. He had performed his duties for 50 days. He was

again engaged w.e.f. 3rd August, 1989 and was shown as an employee of

contractor Imran Khan. He had moved an application for regularisation on

23rd March, 1990 nut instead of regularising him, his services were

terminated w.e.f. 7th April, 1990.

4. The claim of the management, in their written statement, before the

Labour Court was that the reference by the Delhi Government was bad

because the management was dealing with the manufacture/production and

distribution of Petroleum product and was wholly owned by Central

Government. The Ministry of Labour and Rehabilitation (Deptt. Of Labour)

issued notification dated 21st May, 1984 declaring the Oil Industry as a

controlled Industry under Sec.2(a)(i) of Industrial Dispute Act and in view

of the said notification, the Central Government was the appropriate

Government. The respondent had also denied the relationship of an

employer and an employee between the parties.

5. After recording the evidences of both parties and on the basis of the

arguments, the Labour Court had given its findings.

6. The workman has challenged those findings of the Labour Court on

the ground that after the respondent had raised the objection in the written

statement that the Central Government and not the Delhi Administration was

the appropriate Government, the petitioner had approached the Central

Government for reference of this matter to Central Government Industrial

Tribunal but the same was rejected by the Central Government.

7. It is further contended that no evidence was brought on record before

the Labour Court to prove that any notification No. S.O. 457€ dated 21st

June, 1984 was in operation on the date of termination of services of

workman. It is further submitted that the respondent had violated the natural

justice while terminating his services and had failed to produce original

documents despite his request. On these contentions, it is prayed that the

award be set aside.

8. It is submitted on behalf of the respondent that findings of the Labour

Court are based on the evidences on record and does not suffer with any

illegality.

9. Heard. Perused the relevant record.

10. In the present case, the preliminary issue raised by the respondent was

whether the reference made by Delhi Administration in the present matter

was maintainable or not in view of the fact that the appropriate Government

in respect of the respondent is the Central Government. The petitioner, in

his claim, has stressed the argument that he was the employee of the

respondent. The Labour Court has clearly dealt with the issue. It has

referred to the notification dated 21st June, 1984 which is reproduced as

under:-

"S.O.457( E) In pursuance of sub clause (i) of clause (a) of Section 2 of the Industrial Disputes Act, 1947 (14 of 1947) the Central Government hereby specified for the purposes of that sub clause, the Controlled Industry engaged in the Manufacture of production of mineral oil (Grade six) mater and viation spirit, diesel oil, kerosene oil, fuel oil, diverse hydrocarbon oils and their blends including synthetic fuel, lubricating oils and the like which has been declared as a controlled Industry under Section 2 of the Industries(Development and Regulation) Act 1951(65 of 1951). This notification shall beinforce for a period of two years from the date of publication in the official Gazette."

and also Gazette notification dated 16th January, 2001 which is reproduced

as under:-

"S.O. In pursuance of sub clause (i) of clause (a) of Section 2 of the Industrial Disputes Act, 1947 (Act 14 of 1947), the Central Government hereby specifies for the purpose of that sub clause, the controlled Industry engaged in the Manufacturing production of Mineral oil (crude oil) matter and aviation spirit, diesel and kerosene oil and their blends including sympathetic fuel lubricating oil and like which incontrolled by the Central Government under Section 2 of the Industries ( Development of Regulation) Act, 1951 (Act 65 of 1951)."

and also relied on the judgment of this court dated 17th July, 1992 in the case

titled Bharat Petroleum Corporation Ltd. Vs. Lt. Governor of Delhi & Ors.

11. In case CW 1343/87, Bharat Petroleum Corporation Ltd vs.

Lt.Governor & Anr., the court has held as under:-

"Counsel for the parties are agreed that in view of the notification issued by the Central Government, the petroleum industries relating to liquid petroleum come under the Central Government and the Central Government would be the appropriate government for issuing orders to the Contract- Labour (Regulation and Abolition Act). In this case, the order has been passed by the Delhi Administration and therefore, the same is without jurisdiction.

Accordingly, we quash the impugned notification dated th 20 April, 1987 and the writ stands disposed of, with no order as to costs."

12. Bombay High Court also has taken the similar view in the case titled

Bharat Petroleum Corporation vs. Harun Jafer Sheikh and Sh. D.M, 2004

(6) BomCR 629dated 25th August, 2004.

13. In view of these judgments, it is apparent that in the case of the

respondent i.e. Bharat Petroleum Corporation Ltd, the appropriate

Government is the Central Government. In the present case, the reference

has been made by the Delhi Administration, the reference was therefore bad.

Since the Central Government was the appropriate Government in this case,

the Labour Court had no subject matter jurisdiction. The award therefore

suffers with no illegality.

14. Learned counsel for the petitioner has also contended that pursuant to

the objection of the respondent in their written statement they had raised

dispute before the Central Government but vide its order dated 12 th June,

1995, the Central Government had refused to refer the dispute on the

following grounds:-

"It is reported that the matter is subjudice as a reference is pending as I.D.No.5/92 before the Labour Court IV of Delhi Administration. Further, it is reported that workman was engaged through contractor M/s Imran Khan, therefore no I.D. exists against the Management of M/s B.P.C.Ltd."

15. The request has been made during the course of the arguments that the

directions be issued to the Central Government for reviving the matter and

to refer the dispute for adjudication to the CGIT. It is apparent that the

reference was not refused merely on the ground that the matter was

subjudiced. The order clearly shows that the reference was refused because

the workman was engaged through contractor M/s Imran Khan, therefore no

I.D. exists against the Management of M/s B.P.C. ltd. It is apparent that

petitioner has not challenged the said order dated 12th June, 1995.

16. Since the Labour Court had no subject matter jurisdiction to deal with

the matter, its finding on the merit of the case which relates to the existence

of the relationship of an employer and an employee between the petitioner

and the respondent, is without jurisdiction.