Allowed

Gulshan Kumar v. State of Haryana and Anr.

Punjab & Haryana HC8 Jan 2010LPA/1177/2009

Case brief

AI extract

What is this about?

The High Court allowed an appeal against a Single Judge's order dismissing a writ petition. The court held that the appropriate Government lacked the power to finally adjudicate the dispute regarding the workman's employment status and directed a fresh decision.

What did the court decide?

Set aside the impugned order, allow the appeal, and direct the appropriate Government to take a fresh decision within three months.

Gulshan Kumar Vs State of Haryana and Anr. — Service and Employment | Punjab & Haryana HC (2010)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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L.P.A. No.1177 OF 2009 (O&M)

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Date of decision:08.1.2010

Gulshan Kumar

-----Appellants

Vs.

State of Haryana and others

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-----Respondents

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CORAM:HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE ALOK SINGH

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Present:Ms. Abha Rathore, Advocate for the appellant. Mr. M.S.Sindhu, Advocate, Addl.A.G.Haryana for respondent Nos. 1 and 2. Mr. PK Mutneja, Advocate for respondent No.3.

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Adarsh Kumar Goel,J.

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This appeal has been filed against order of learned Single Judge dismissing the writ petition of the appellant-workman challenging refusal to refer an industrial dispute for adjudication vide letter dated 30.9.1999, Annexure P.5.

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The workman gave a demand notice dated 6.12.1998 alleging that he was working with the management since February 1995 as Machine Operator and his services were terminated on 23.5.1998 without following due procedure of law. The management had appointed fictitious contractors. Conciliation proceedings were initiated on the said demand notice and the appropriate Government

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LPA No.1177 of 2009(O&M)

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rejected the prayer for making of reference for adjudication with the following observations:-

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“It is informed to you that on the above given subject the Government does not consider your case fit to be sent to the Labour Court because it has been found from the investigation that you were not working with the management instead you were working with the Contractor. Therefore, your demand letter being not maintainable against the management is rejected.”

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Aggrieved thereby, the workman filed writ petition in this Court. Learned Single Judge dismissed the writ petition holding that since there was certificate of registration under the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 and the workman was employed by the contractor M/s SDS Security Private Limited, the dispute could not be raised against the respondentmanagement.

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We have heard learned counsel for the parties and perused

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the record.

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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

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LPA No.1177 of 2009(O&M)

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settlement or whether adjudication was expedient in the interest of industrial relation, the dispute could not be foreclosed by assuming final adjudicatory authority.

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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.

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Accordingly, we allow this appeal and set aside the impugned order dated 30.9.1999 and direct the appropriate Government to take a fresh decision in the matter in accordance with law within three months from the date of receipt of a copy of this order.

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(Adarsh Kumar Goel) Judge

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(Alok Singh) Judge

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January 08, 2010 ‘gs’

Gulshan Kumar v. State of Haryana and Anr.

Case brief

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Gulshan Kumar v. State of Haryana and Anr.

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