IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No. 1789 of 2010 Date of Decision: October 18, 2011 Bhopal Singh …Appellant Versus State of Haryana and others …Respondents CORAM: CORAM: CORAM: CORAM: HON’BLE HON’BLE HON’BLE HON’BLE THE ACTING CHIEF JUSTICE THE ACTING CHIEF JUSTICE THE ACTING CHIEF JUSTICE THE ACTING CHIEF JUSTICE HON’BLE MR. JUSTICE HON’BLE MR. JUSTICE HON’BLE MR. JUSTICE HON’BLE MR. JUSTICE RAJIV NARAIN RAJIV NARAIN RAJIV NARAIN RAJIV NARAIN RAINA RAINA RAINA RAINA Present: Mrs. Abha Rathore, Advocate, for the appellant. Mr. Kulvir Narwal, Addl. AG, Haryana, for respondent Nos. 1 and 2. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMA M.M. KUMA M.M. KUMA M.M. KUMAR, ACJ R, ACJ R, ACJ R, ACJ 1. This appeal filed under Clause 10 of the Letters Patent is directed against the judgment dated 4.2.2009 rendered by the learned Single Judge dismissing the writ petition filed by the petitioner-appellant holding that the petitioner-appellant was an employee of the contractor M/s S.D.S. Security Private Limited, New Delhi, and there existed no relationship of employer and employee between the petitioner-appellant and M/s E.E.L. Limited-respondent No. 3. It has been observed that while exercising jurisdiction of referring an industrial dispute under Section 10 of the Industrial Disputes Act, 1947 (for brevity, ‘the Act’) the appropriate Government could not altogether ignore the merits of the nature of LPA No. 1789 of 2010 2 the appointment. In that regard reliance has been placed by the learned Single Judge on the judgments of Hon’ble the Supreme Court rendered in the cases of Dhanbad Colliery Karamchari Sangh Dhanbad Colliery Karamchari Sangh Dhanbad Colliery Karamchari Sangh Dhanbad Colliery Karamchari Sangh v. v. v. v. Union of India Union of India Union of India Union of India, 1991 Supp (2) SCC 10 , 1991 Supp (2) SCC 10 , 1991 Supp (2) SCC 10 , 1991 Supp (2) SCC 10 and Steel Authority of India Steel Authority of India Steel Authority of India Steel Authority of India Ltd. Ltd. Ltd. Ltd. v. v. v. v. Union of India Union of India Union of India Union of India, 2006 (4) SCT 481 , 2006 (4) SCT 481 , 2006 (4) SCT 481 , 2006 (4) SCT 481. 2. In the writ petition relatable to the instant appeal, the petitioner-appellant had challenged order dated 22.9.1999 (P-3) and order dated 15.11.2000 (P-5), whereby the reference sought by him under Section 10 of the Industrial Disputes Act, 1947 to the Labour Court, has been declined by the appropriate Government on the ground that there is no relationship of master and servant between the petitioner-appellant and respondent No. 3. 3. Having heard learned counsel for the parties and perusing the paper book with their able assistance, we are of the considered view that the matter is no longer res integra. The view taken in the impugned judgment was also taken by a learned Single Judge in the case of Karan Pal Singh v. State of Haryana and others Karan Pal Singh v. State of Haryana and others Karan Pal Singh v. State of Haryana and others Karan Pal Singh v. State of Haryana and others (CWP No (CWP No (CWP No (CWP No. 1287 of 2001, decided on 4.2.2009) . 1287 of 2001, decided on 4.2.2009) . 1287 of 2001, decided on 4.2.2009) . 1287 of 2001, decided on 4.2.2009), which was subject matter of challenge in LPA No. 1786 of 2010, decided on 17.5.2011. The Letters Patent Bench after noticing the observations made in paras 5 and 6 in an earlier Division Bench judgment of this Court rendered in the case of Gulshan Kumar Gulshan Kumar Gulshan Kumar Gulshan Kumar v. v. v. v. State of Haryana State of Haryana State of Haryana State of Haryana (LPA No. 1786 of 2010, decided on 8.1.2010) allowed the said appeal. The view taken in Gulshan Kumar’s case (supra) Gulshan Kumar’s case (supra) Gulshan Kumar’s case (supra) Gulshan Kumar’s case (supra) reads thus: “5. Learned counsel for the appellant submits that the plea that the workman was in fact employed by the contractor was a defence of the management which had to be adjudicated upon. The power of the appropriate LPA No. 1789 of 2010 3 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 Ram Avtar Ram Avtar Ram Avtar Sharma and others, Petitioners v. State of Haryana and Sharma and others, Petitioners v. State of Haryana and Sharma and others, Petitioners v. State of Haryana and Sharma and others, Petitioners v. State of Haryana and another another another 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.” 4. The question concerning existence of relationship of employer and employee is a legal issue, which requires adjudication and determination by a judicial process, which requires adducing of evidence. It could not be finally decided by the appropriate Government while taking a decision on the desirability of referring an industrial dispute for adjudication. It is well settled that once an industrial dispute existed, decision has to be left to the adjudicator. LPA No. 1789 of 2010 4 In that regard reliance is placed on the judgment of Hon’ble the Supreme Court rendered in the case of Steel Authority of India Ltd. Steel Authority of India Ltd. Steel Authority of India Ltd. Steel Authority of India Ltd. (supra) (supra) (supra) (supra) where observations have been made to the extent that even where the contract between the workman and the contract was a sham, the matter is required to be decided by the adjudicator. 5. As a sequel to the above discussion, the instant appeal is allowed. The impugned judgment dated 4.2.2009 rendered by the learned Single Judge as well as orders dated 22.9.1999 and 15.11.2000 (P-3 and P-5) are set aside. The appropriate Government is directed to take a fresh decision on the issue of desirability to refer the industrial dispute for adjudication 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 the merits of the case. (M.M. KUMAR) (M.M. KUMAR) (M.M. KUMAR) (M.M. KUMAR) Acting Chief Acting Chief Acting Chief Acting Chief Justice Justice Justice Justice (RAJIV NARAIN RAINA RAJIV NARAIN RAINA RAJIV NARAIN RAINA RAJIV NARAIN RAINA) October October October October 18 18 18 18, 201 , 201 , 201 , 2011 Judge Judge Judge Judge PKapoor