Case: Sharad Kumar Vs. Govt. Of Nct Of Delhi

The appellant was holding the post of Area Sales Executive when his service was terminated vide the order dated 20.12.1995. The order was communicated to him on 28.12.1995. No show cause notice was served nor any enquiry was held before the order terminating appellants service was passed. However, one months salary was sent to him alongwith 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 of the State Government on 23.10.1996. On receipt of the conciliation Officers report the State Government declined to refer the dispute to the Industrial Tribunal or the Labour Court for adjudication vide order dated 14.7.1998. The relevant portion of the orderthe 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".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.

Reasoning: 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 which 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 termination 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.