IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. No.1786 of 2010 (O&M) Date of decision: 17.5.2011 Karan Pal Singh. -----Appellant. Vs. State of Haryana & others. -----Respondents. CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE AJAY KUMAR MITTAL Present:- Ms. Abha Rathore, Advocate for the appellant. Mr. Kulvir Narwal, Addl.A.G., Haryana. Mr. Rohit Kumar, Advocate for respondent No.3. --- 1. Whether the reporters of local newspapers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the digest or not? ADARSH KUMAR GOEL, ACJ. 1. Delay condoned. Heard on merits. 2. This appeal has been preferred against order of learned Single Judge dismissing the writ petition against refusal of the appropriate Government to refer an industrial dispute raised on behalf of the workman claiming to be the employee of L.P.A. No.1786 of 2010 the State of Haryana. As against the said stand, plea of the management was that the workman was employed under the contractor and the management/State was the principal employer for the work which was entrusted to the contractor. 3. Learned Single Judge dismissed the writ petition holding that while exercising jurisdiction of referring an industrial dispute under Section 10 of the Industrial Disputes Act, 1947, the appropriate Government could not altogether ignore the merits of the nature of the appointment. Reliance was placed on judgments of the Hon’ble Supreme Court in Dhanbad Colliery Karamchari Sangh v. Union of India and others 1991 Supp (2) SCC 10 and Steel Authority of India Ltd. v. Union of India 2006(4) SCT 481. 4. We have heard learned counsel for the appellant. 5. Learned counsel for the appellant-workman submits that whether or not relationship of employer and employee existed, was a seriously disputed issue for adjudication which could not be finally decided by the appropriate Government while taking a decision on desirability of referring an industrial dispute for adjudication. Once an industrial dispute existed, decision has to be left to the adjudicator. Even in Steel Authority of India Ltd., it was observed by the Hon’ble Supreme Court that where the workman claimed that contract between the management and the contractor was a sham one, the matter has to be decided by the adjudicator. Identical issue was considered by this Court in 2 L.P.A. No.1786 of 2010 Gulshan Kumar v. State of Haryana & others L.P.A. No.1177 of 2009, wherein it was observed:- “5. Learned counsel for the appellant submits that the plea that the workman was infact employed by the contractor was a defence of the management which had to be adjudicated upon. The power of the appropriate Government while considering an application for making of reference was not adjudicatory power and was not a substitute for adjudication by the Labour Court. Though the appropriate Government may go into the question of existence of a prima-facie case or whether the claim of the workman was frivolous, stale or not covered by settlement or whether adjudication was expedient in the interest of industrial relations, the dispute could not be foreclosed by assuming final adjudicatory authority. 6. We are of the view that contention raised has merit and the appropriate Government could not finally adjudicate the dispute. Reference may be made to judgment of the Hon’ble Supreme Court in Ram Avtar Sharma and others, Petitioners v. State of Haryana and another, AIR 1985 SC 915. The workman has expressly alleged that he was employed with the management and his services were terminated after about three years without following procedure. No doubt, the management has taken a stand that the he was employed with the contractor but this stand would have required adjudication.” 3 L.P.A. No.1786 of 2010 6. In view of above, we set aside the impugned order and direct the appropriate Government to take a fresh decision on the issue of desirability to refer the industrial dispute for adjudication. The decision may be taken within two months from the date of receipt of a copy of this order. It is made clear that we have not expressed any opinion on merits of the case. (ADARSH KUMAR GOEL) ACTING CHIEF JUSTICE May 17 2011 ( AJAY KUMAR MITTAL ) ashwani JUDGE 4