RAJINDER SINGH LAMBA Vs. STATE OF HARYANA

JUDGEMENT

(1.) Petitioner was appointed as an Assistant Foreman-cum-D.G. Mechanic on 17.6.1988 and his basic salary was Rs. 1,300/- per month. He was thereafter promoted as foreman (D.G. Set and Boiler) and claims that he has been getting out of turn incentives from his employer, the second respondent herein on account of the good work done by him. His services were terminated with effect from March 13, 1993 and he raised an industrial dispute by serving a demand notice under Section 2-A of the Industrial Disputes Act, 1947 (for short the Act). On receipt of this notice from the petitioner, conciliation proceedings were held and both the parties were issued notices to appear before the Conciliation Officer. The management pleaded that the petitioner had abandoned his services when he was drawing a salary of Rs. 3,555/- plus other allowances and having been promoted to the post of foreman he had a contingent of five employees including an Assistant foreman working under him. For this reason, it was contended that the petitioner is not a workman within the meaning of Clause (s) of Section 2 of the Act. The workman had alleged that he was performing manual duties and he was, therefore, covered by the definition of 'workman'. The Conciliation Officer heard the parties and despite his efforts to persuade them to come to an amicable settlement the proceedings proved abortive and he sent his failure report to the State Government. On a consideration of the failure report and other material on the record the Joint Secretary, Government of Haryana as per his communication dated 26.10.1993 (Annexure P4 with the writ petition, declined to refer the dispute for adjudication. This communication when translated in English reads as under :-

(2.) Mr. R.S. Randhawa, Advocate appearing for the second respondent contended that it was open to the State Government to prima facie examine the merits of the dispute before the same could be referred for adjudication under Section 10(1) of the Act. He also submitted that in view of the nature of the duties performed by the petitioner which were brought to the notice of the State Government in the course of conciliation proceedings it was justified to say that the petitioner was not a workman as he was performing supervisory duties and drawing wages exceeding Rs. 1,600/- per mensem. According to the learned counsel the reference was rightly declined by the State Government. Counsel for the management placed strong reliance on the judgment of the Supreme Court in Prem Kakkar v. State of Haryana and another, 1976 AIR(SC) 1474

(3.) On the rival contentions advanced by the parties, the question that arises for determination is whether the State Government can decline to make a reference on the ground that the employee raising the dispute is not a workman within the meaning of the Act. This very question arose before me in Sushila Mittal v. Labour Commissioner, Punjab and others, Civil Writ Petition No.8207 of 1987 decided on November 24, 1993. After taking note of the judgments of the Supreme Court in Prem Kakkar's case and Telco Convey Drivers' case and some other decisions including the judgment of the Constitution Bench in State of Bombay v. K.P. Krishnan, 1960 AIR(SC) 1223which was followed in Bombay Union of Journalists and others v. State of Bombay and another, 1964 AIR(SC) 1617and the decision in Nirmal Singh v. State of Punjab and others, 1984 AIR(SC) 1619the order of the State Government declining to refer the dispute for adjudication on the ground that the employee concerned was not a workman, was upheld and I took the following view :-