Delhi High Court
All India And General Mazdoor Union vs Govt. Of Nct Of Delhi And Ors. on 24 July, 2003
Equivalent citations: 2003VAD(DELHI)566, 106(2003)DLT208, 2004(1)SLJ471(DELHI)
Author: Mukul Mudgal
Bench: Mukul Mudgal
JUDGMENT Mukul Mudgal, J.
1. This writ petition by the workmen challenges the Order dated 27th August, 1997, declining reference of a dispute by the Secretary, Labour, NCT, Delhi and the review order dated 27th January, 1998. The writ petition further seeks reference of the dispute as to termination under Section 10(1) of the Industrial Disputes Act, 1947(hereinafter referred to as the Act).
2. The 3 petitioners claimed to work continuously in Punjab Bhawan, Delhi for 5, 4 & 2 years respectively and upon their termination of services and rejection of the demand notice dated 5th April, 1996, sought to raise an industrial dispute under Section 12 of the Act. On 27th August, 1997, an order was passed by the Secretary (Labour), Government of NCT of Delhi that the dispute cannot be referred as the Punjab Bhawan activities did not constitute "Industry" within the meaning of Section 2(j) of the Act and the review against this order inter-alia for the reason that a similar dispute in case of one Swami Nath had already been referred was dismissed by the order dated 27th January, 1998 on the grounds that in Swami Nath's case the State at the stage of the reference has not taken the plea that Punjab Bhawan activities were not `industry' under Section 2(j) of the Act.
3. By the order dated 27th August 1997, review of which was dismissed on 27th January 1998 by the impugned order, the Secretary (Labour), Govt. of NCT of Delhi has given the following reasons for declining the reference:-
"From the documents placed on record, it transpires that Punjab Govt. vide its notification No.1416/RVA/79/16 dated 19.4.79 notified that Punjab Bhawan, New Delhi will be treated as a circuit House which are primarily intended for the use of Governor, Chief Minister, and Judges while on tour, prima facie, such activity of the State Govt. do not fall within the ambit of the definition of Industry as defined U/S 2(J) of the I.D.Act".
4. In my view the above order declining the reference for the aforesaid reasons is not sustainable because by the said order the Secretary (Labour) has proceeded to adjudicate the plea as to whether the circuit House can be treated as an industry as per Section 2(j) of the Act. In my view the aforesaid finding adjudicating the dispute on merits between the parties can only be done by an adjudication under the Industrial Disputes Act and not at the stage of making a reference by the Labour Secretary, exercising administrative jurisdiction. The Labour Secretary has thus delved into a jurisdiction not vested with him in law. The plea whether the activities of Punjab Bhawan fall within the definition of `Industry' under S.2(j) of the Act is a plea which can only be raised and adjudicated in a Labour Court/Industrial Tribunal.
5. In Telco Convoy Drivers Mazdoor Sangh and another Vs. State of Bihar and others the Hon'ble Supreme Court has held as follows:-
"Though 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", but it is not entitled to adjudicate the dispute itself on merits. While exercising power under Section 10(1) of the Act the function of the appropriate government is an administrative function and not a judicial or quasi-judicial function. In performing this administrative function the government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by Section 10 of the Act."
6. The impugned order adjudicating the question of whether Punjab Bhawan activities were `Industry' thus clearly runs contrary to the position of law laid down in the aforesaid judgment which view has also been reiterated in Sharad Kumar Vs. Govt. of NCT of Delhi & Ors. .
7. Thus the order dated 27th August, 1997 is entirely unsustainable. The order dismissing the review dated 27th January, 1998 is equally unsustainable as in spite of having noticed that a similarly circumstanced dispute was referred for adjudication, the order is not reviewed on the erroneous stance that in the earlier case of Swami Nath, the State Government had not rebutted the claim of the workman for reference. Accordingly both the Review Order dated 27th January, 1998 and the original Order dated 27th August, 1997, declining reference are set aside.
8. In the aforesaid judgment in Telco Convoy Drivers Mazdoor Sangh and another Vs. State of Bihar and others (supra), the Hon'ble Supreme Court also held as follows:-
"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 V. Government of Tamil Nadu; Ram Avtar Sharma V. State of Haryana; MP. Irrigation Karamchari Sangh V. State of M.P.; Nirmal Singh V. State of Punjab."
9. In view of the above position of law and without going into the merits of the plea whether the activity of Punjab Bhawan amounts to a definition of industry, I direct the Secretary (Labour), NCT in view of the position of law laid in the judgment extracted above, to make a reference of the dispute on or before 15th September, 2003 in view of the long pendency of the dispute since 1996 as well as the reference of the dispute of similarly situated Swami Nath.
10. With the above observations, the petition stands disposed of.