JUDGEMENT

1. Through the medium of this writ petition, the petitioners seek setting-

aside of the Order/Award dated 15th June 2016, passed by the Industrial Tribunal-cum-Labour Court, J&K, Srinagar – respondent no.3 herein, in a Reference under Subsection (2) of Section 2A of the Amendment of 2010 of Industrial Disputes Act, 1947 titled as Tariq Ahmad Malla

Page 1

v. General Officer Commanding and others, on the grounds made mention of therein.

2. It appears from perusal of the material on the file that respondent no.1 herein along with some persons were engaged as Casual Porters in 7- RR C/o 56 APO through Defence Labour Procurement Office, Gund- Srinagar. Their services, however, were discontinued. Feeling aggrieved of discontinuation, respondent no.1 approached the Assistant Labour Commissioner, Srinagar, on 26th March 2013. However, his petition was returned to be presented before appropriate forum. Respondent no.1, thus, approached Regional Commissioner (Central) Jammu, but he was suggested to approach Assistant Labour Commissioner, Srinagar. In view of this, respondent no.1 again approached Assistant Labour Commissioner, Srinagar, with a fresh application to initiate conciliation proceedings for resolving the industrial dispute between respondent no.1 and petitioners herein. Petitioners appeared and filed their Objections before Assistant Labour Commissioner. Thereafter, respondent no.1 filed a Reference Petition on 12th May 2014 before the Tribunal in terms of provisions of Subsection (2) of Section 2A of the Act. Notice was issued and served upon petitioners herein. On 26th November 2014, petitioners filed their objections. In terms of impugned Award, the Tribunal held respondent no.1 entitled to all full back wages including the period from his termination till he resumes his services with all benefits. The Tribunal also directed petitioners herein to reinstate petitioner forthwith, with a further direction to them to pay full back wages to petitioner. It is this order/award, of which petitioners are aggrieved.

Page 2

3. Learned counsel for petitioners has stated that the Tribunal has erroneously assumed jurisdiction not vested in it because it is National Industrial Tribunal Chandigarh Northern Zone as defined in Section 7- B of the Act and not the State Industrial Disputes Tribunal. He would also contend that petitioners have been directed by the Tribunal to regularize services of respondent no.1, who was working as casual porter and was not an employee of petitioners. It is also stated that impugned Award is in utter disregard to law laid down by the Supreme Court in writ petition Civil no.616 of 2013 titled as Yashpal and others v. Union of India and others connected with civil writ petition no.919 of 2013, decided on 2nd January 2017, which clearly upheld the earlier judgements passed by the Supreme Court to the effect that services of porters serving in Army cannot be regularized. It is also submission of learned counsel that respondent no.1 was not an employee of petitioners as was clearly stated by them in their reply before the Tribunal. It is also contention of petitioners that the Tribunal has ignored the fact that respondent no.1 was working as daily wager/ casual porter as provided to petitioners by respondent no.1. The Tribunal is also stated to have erred to appreciate the fact that the instant matter pertains to contractual engagement and is not a case of termination or retrenchment and therefore the dispute does not pertain to disputes as categorized under Industrial Disputes Act. He has also relied upon Secretary, State of Karnataka v. Uma Devi, (2006) 4 SCC 1; M. Raja v. CEERI Educational Society, Pilani, (2006) 12 SCC 636.

4. On the other hand, learned counsel for respondent no.1 has vehemently stated that writ petition is not maintainable as there is non-compliance

Page 3

of mandatory provisions of Section 17 (b) of the Industrial Disputes Act, 1947 inasmuch as petitioners have admitted that petitioner was