IMPORTANT POINT
The jurisdiction vested in appropriate Govt. to refer a dispute u/s. 10(1) r/w 12(5) of Industrial Disputes Act, 1947 is of administrative nature. It has no jurisdiction to look into nature of dispute including whether the person is a workman under the Act or not. It is for the concerned Tribunal or Court for adjudication.

Headnote:(i) Industrial Disputes Act, 1947-Sections 10(1) r/w 12(5)-Scope and extent of the power of appropriate Govt. to make a reference of industrial dispute to Boards, Court or Tribunal-Nature of duties performed by a person-Whether he is a workman or not-Dispute regarding termination of service-These have to be decided by Board, Court or Tribunal-Case Law referred. (Paras 15 to 26)
       (ii) Industrial Disputes Act, 1947-Sections 2(s) and 2(k)-Definitions of workman and industrial dispute -Appellant was designated as Area Sales Executive-His services terminated without show cause and enquiry by giving one month s salary in lieu of notice-Conciliation failing-Delhi Govt. refused to refer as he was not a workman by designation-Upheld by High Court in writ-Appeal against to Supreme Court-Whether in the facts and circumstances of the case, State Govt. was right in rejecting the appellants request for a reference and thereby nipping the proceedings at the threshold? (No)-Appeal allowed-Case remanded for making reference.
       Held : Testing the case in hand on the touchstone of the principles laid down in the decided cases we have no hesitation to hold that the High Court was clearly in error in confirming the order of rejection of reference passed by the State Government merely taking note of the designation of the post held by the respondent i.e. Area Sales Executive. As noted earlier determination of this question depends on the types of duties assigned to or discharged by the employee and not merely on the designation of the post held by him. We do not find that the State Government or even the High Court has made any attempt to go into the different types of duties discharged by the respondent with a view to ascertain whether he came within the meaning of Section 2(s) of the Act. The State Government, as noted earlier, merely considered the designation of the post held by him which is extraneous to the matters relevant for the purpose. From the appointment order dated 21/22 April 1983 in winch are enumerated certain duties which the appellant may be required to discharge it cannot be held therefrom that he did not come within the first portion of the section 2(s) of the Act. We are of the view that determination of the question requires examination of factual matters for which materials including oral evidence will have to be considered. In such a matter the State Government could not arrogate on to itself the power to adjudicate on the question and hold that the respondent was not a workman within the meaning of section 2(s) of the Act, thereby terminating the proceedings prematurely. Such a matter should be decided by the Industrial Tribunal or Labour Court on the basis of the materials to be placed before it by the parties. Thus the rejection order passed by the State Government is clearly erroneous and the order passed by the High Court maintaining the same is unsustainable. Accordingly, the appeal is allowed. The order dated 10th July, 2000 of the High Court in Civil Writ Petition No. 3561/2000 is set aside. The Government of National Capital Territory of Delhi, respondent No. 1 herein, is directed to refer the dispute raised by the appellant including the question whether the appellant is a workman under the Act, to the Industrial Tribunal/Labour Court for adjudication. The appellant shall be entitled to receive from the respondents a sum of Rs. 20, 000/- (Rupees Twenty Thousand Only) towards cost and hearing fee of the case. (Paras 27 & 28)

JUDGMENT

D.P. Mohapatra, J.-Leave granted.

2. This appeal filed by the employee is directed against the order dated 10.7.2000 of the Delhi High Court declining to interfere with the order of the Government of National Capital Territory of Delhi (NCT of Delhi) refusing to refer the dispute raised by the appellant to the Industrial Tribunal/Labour Court on the sole ground that he is not a "workman within the meaning of section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act ).

3. The factual backdrop of the case relevant for appreciating the questions raised in the case may be stated thus ;

The appellant was holding the post of Area Sales Executive when his service was terminated vide the order dated 29.12.1995. The order was communicated to him on 28.12.l995. No show cause notice was served nor any enquiry was held before the order terminating appellant s service was passed. However, one month s salary was sent to him along with the termination letter. The appellant questioned the legality and validity of the order of termination of service. The matter was taken up for conciliation. The Conciliation Officer submitted a failure report to the State Government on 23.10.1996. On receipt of the Conciliation Officer s report the State Government declined to refer the dispute to the Industrial Tribunal or the Labour Court for adjudication vide order dated 14.7.1993. The relevant portion of the order reads :

"All the documents filed and submissions of the parties and the report of the Conciliation Officer have been perused and it is found that this is not a fit case for reference to Industrial Tribunal or Labour Court of Delhi for adjudication for the reasons given below:

"Admittedly the applicant was designated as Area Sales Executive and performing the duties of Area Sales Executive, as such he is not covered by the definition of "Workman" as defined under Section 2(s) of the Industrial Disputes Act, 1947."

4. Feeling aggrieved by the said order the appellant filed the writ petition before the High Court of Delhi which was dismissed by order dated 10.7.2000. The said order is under challenge in this appeal.

5. The relevant portion of the impugned order reads as follows:

"The only reason why the Respondent refused to make a reference was that the petitioner who is working as an Area Sales Executive is not a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947.

Learned counsel for the petitioner submits that whether he is a workman or not should be decided by the Labour Court.

A reading of Section 2 (s) of the Industrial Disputes Act makes it quite clear that an officer appointed as an Area Sales Executive cannot be considered to be a Workman within the meaning of Section 2(s) of the Act.

Dismissed"

6. From the order passed by the State Government and the Order of the High Court it is clear that the sole reason for declining to refer the dispute relating to discharge/termination of the appellant s service for adjudication to the Industrial Tribunal or Labour Court is that he is not a workman within the meaning of section 2(s) of the Act. To put it differently since the appellant was holding the post of Area Sales Executive at the time of termination of service he was not a workman as defined in section 2(s) of the Act. The order of refusal of reference of the dispute was passed by the respondent in exercise of the power under section 10(1) read with section 12(5) of the Act.

7. The question that arises for consideration is whether on the facts and circumstances of the case the State Government was right in rejecting the appellant s request for a reference and thereby nipping the proceeding at the threshold. Is it a just and proper exercise of the jurisdiction vested under the statute ?

8. Shri S. Prasad learned counsel appearing for the appellant strenuously contended that the State Government committed error in declining to refer the dispute to the Industrial Tribunal/Labo

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2002 Supreme(SC) 469

Cases Referred (7)