* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C.) No. 440/2007 % Date of Decision: 31st July, 2009 # INDIRA GANDHI INSTITUTE OF PHYSICAL EDUCATION & SPORTS SCIENCES ..... PETITIONER ! Through: Mr. V.P. Chaudhary, Sr. Advocate with Mr. Nitinjya, Advocate. VERSUS $ SHRI O.P. PAHWA .....RESPONDENT ^ Through: Mr. Vidhu Upadhyay, Advocate. CORAM: Hon'ble MR. JUSTICE S.N. AGGARWAL 1. Whether reporters of Local paper may be allowed to see the judgment? NO 2. To be referred to the reporter or not?NO 3. Whether the judgment should be reported in the Digest?NO S.N.AGGARWAL, J (ORAL) This writ petition filed by the petitioner is directed against an interim order dated 14.09.2006 by which the Labour Court has decided the preliminary issue relating to legality and validity of the inquiry issue against it and in favour of the workman. 2. Heard. 3. Mr. Vidhu Upadhyay, learned counsel appearing on behalf of the respondent has raised an objection to the maintainability of the present writ petition. It is contended by him that a writ petition against an interim order by which preliminary issue is decided against the management does not lie. 4. Per contra, Mr. V.P. Chaudhary, learned senior counsel appearing on behalf of the petitioner, contends that since the Labour Court, vide its W.P.(C) No.440/2007 Page 1 of 4 impugned order while deciding the preliminary issue against the management, has also held the respondent to be a workman, the petitioner is aggrieved by the said finding and, therefore, according to him, this finding is subject to judicial review and for that reason, he submits that this writ petition even against an interim order is maintainable. 5. I have given my anxious consideration to the above argument advanced by learned counsel for the parties on the maintainability of the present writ petition but I have not been able to persuade myself to agree with the submissions in regard to the maintainability made by the learned senior counsel appearing on behalf of the petitioner. 6. In The Cooper Engineering Limited Versus P.P. Mundhe AIR 1975 SC 1900, the Hon'ble Supreme Court has held that the High Court should not intervene with the proceedings pending before the Labour Court at the stage of decision of the preliminary issue relating to the validity of the inquiry. The relevant portion of this judgment is extracted below :- “We are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the Labour Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When enquiry is admitted by the employer there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the Labour Court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue. We should also make it clear that there will be no adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication.” W.P.(C) No.440/2007 Page 2 of 4 7. In the present case, the respondent was appointed as Section Officer (Admn.) with the petitioner w.e.f. 20.08.1987 and his services were terminated by the petitioner w.e.f. 02.08.1995. The industrial dispute relating to his termination is pending before the Labour Court till now though a period of about 14 years have passed when the respondent was terminated by the petitioner from its service. In the meanwhile, during the pendency of the proceedings before the Labour Court, the respondent is stated to have reached the age of superannuation of 60 years on 04.03.2009. The question of his reinstatment, therefore, does not arise. The only right of the respondent left to be decided is the benefit to which he may be entitled if it is found that his services were illegally terminated. The court cannot ignore the contention of the petitioner that the respondent is not a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. However, challenge to the finding on this aspect contained in the impugned interim order is kept open and will be taken up for judicial review in case the final award comes against the petitioner. It is quite possible that the Labour Court itself may find the respondent not entitled to any relief in the event of petitioner proving alleged misconduct against him in post-preliminary issue decision proceedings. However, in case the final award comes against the petitioner, then it will be open to the petitioner to challenge the said award on all grounds including his objection on the point that the respondent is not a workman in appropriate proceedings. 8. For the foregoing reasons and in view of the judgment of the Hon'ble Supreme Court in Cooper Engineering Limited Case (supra), this writ petition is dismissed as not maintainable. 9. The concerned Labour Court is directed to decide the proceedings in the matter pending before it as expeditiously as possible preferably W.P.(C) No.440/2007 Page 3 of 4 within six months to be reckoned from the next date fixed for appearance of the parties before it. Both the parties are directed that they will co- operate in the expeditious disposal of the reference pending before the Labour Court and will not ask for unnecessary adjournment on the dates to be fixed by the Labour Court. 10. The parties are directed to appear before the concerned Labour Court/Successor Court for directions at 2 PM on 10.08.2009. 11. A copy of this order along with the LCR be sent back to the concerned Court before 10.08.2009. JULY 31, 2009 S.N.AGGARWAL, J 'ma' W.P.(C) No.440/2007 Page 4 of 4