JUDGMENT
Mukul Mudgal, J.
1. Rule. With the consent of the counsel for the parties, the writ petition is taken up today for final hearing.
2. This writ petition challenges the Order dated 11th June, 2001(Annexure P-11 at Page 33A of the writ petition) declining to refer the industrial dispute raised in respect of the petitioner for adjudication. The petitioner claims that he had worked for about two years from 26th September, 1998 as a Helper at ARSR/TX Stand High Security Radar facility of the respondent No. 2 (Airports Authority of India) at Bijwasan. The respondent No. 1 is the Union of India through the Under Secretary, Ministry of Labour, Government of India, Shram Shakti Bhawan, New Delhi, who has the authority to make the reference of the industrial dispute raised by the aggrieved workman under Section 10 of the Industrial Disputes Act, 1947 (in short the `Act’) and who has also passed the order dated 11th June, 2001 impugned in this writ petition. The respondent No. 2 is the Airports Authority of India(in short the `AAI’), i.e., the employer of the petitioner though no relief is claimed against it.
3. The facts of the case in brief are:-
That on 26th September, 1998, the petitioner had been employed as a Helper at the ARSR/TX Stand High Security Radar Facility of the AAI at Bijwasan. The supervision of the said work was contracted out by the AAI to one contractor, namely, M/s Vishal Enterprises. It has been averred that the similarly situated workmen were being paid Rs.90.80 per day whereas the consolidated salary of Rs.1500/- per month was given to the petitioner. On 15th June, 2000, the petitioner served a legal notice(Annexure P-1 at Pages 13-14 of the petition) on the AAI, making a demand for regularization and parity of pay with similarly situated workmen on the principle of `equal pay for equal work’ after completion of 240 days of service. It is the petitioner’s case that pursuant to the said legal notice, his services were terminated on 8th July, 2000 in retaliation by the AAI without assigning any reason, holding any enquiry or giving him a preferential right of re-engagement. Thereafter the petitioner served another legal demand notice dated 24th July, 2000 against his illegal termination, pointing out that this act of the AAI was discriminatory and amounted to victimization. However, the respondent No. 2 chose not to gave any reply to said legal notice. Thereafter on 9th August, 2000 the petitioner filed a statement of claim(Annexure P-4 at Pages 19-22 of the petition) along with documents before the Conciliation Officer. On 18th August, 2000, the AAI filed a reply before the Conciliation Officer stating that the petitioner was not its employee. On 13th October, 2000, the petitioner filed a rejoinder, reiterating his claim. On 6th February, 2001, the Conciliation Officer filed a failure of the conciliation report. On 11th June, 2001, the respondent No. 1 through its Under Secretary passed the impugned order declining to refer the dispute for adjudication which reads:-
“No. L-11011/4/2001/IR(M)
Government of India/Bharat Sarkar
Ministry of Labour/Shram Mantralaya
New Delhi, Dated 11/06/2001
To
1 The Chairman
Palam, New Delhi
2 Sh. Khushi Ram C/o Delhi Labour Union
Agarwal Bhawan, Tis Hazari, New Delhi
Sub : ID between the management of M/s AAI and their workman rep., by Sh. Khushi Ram through Delhi Labour Union over regularization of services.
Sir,
I am directed to refer to the Failure of Conciliation Report No. 8/55/2000 dated 06/02/2001 from the Asst. Labour Commissioner(c), New Delhi received in this Ministry on 19/04/2001 on the above subject and to say that prima facie this Ministry does not consider this dispute fit for adjudication for the following reasons:
“It is reported that the workman was not appointed by the management of Airport Authority of India.”
Yours faithfully
Sd/-
(B.M. DAVID)
UNDER SECRETARY”
4. It is regrettable that in spite of several judgments of the Hon’ble Supreme Court in Sharad Kumar Vs Govt. of NCT of Delhi and Ors. ; Telco Convoy Drivers Mazdoor Sangh Vs State of Bihar reported as 1989 SCC (L & S) 465; Rav Avtar Sharma Vs State of Haryana ; M.P. Irrigation Karamchari Sangh Vs State of M.P. : Shambu Nath Goyal Vs Bank of Baroda & Bombay Unioin of Journalists Vs State of Bombay as well as the judgment rendered by this Court in Civil Writ Petition No. 5326/2001 entitled Hotel Workers Union & Anr. Vs Govt. of NCT of Delhi & Ors. delivered on 24th July, 2003 under Section 10(1) of the Act the Ministry of Labour continues to labour under a misapprehension that it is a quasi judicial if not a judicial tribunal and keeps on recording findings on merits while rejecting the orders of reference.
4(a). In para 31 of the Sharad Kumar’s case (supra) the Hon’ble Supreme Court has held as under:-
“31. Testing the case in hand on the touchstone of the principles laid down in the decided cases, 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 appellant 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 21-4-1983/22-4-1983 in which are enumerated certain duties which the appellant may be required to discharge it cannot be held there from that he did not come within the first portion of 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 terminating the proceedings prematurely. Such a matter should be decided by the Industrial Tribunal or the 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.”
4(b) In Telco Convoy Drivers Mazdoor Sangh’s case (supra), the Hon’ble Supreme Court has held as follows:-
“Though in considering the question of making a reference under Section 10(1), the government is entitled to form an opinion as to whether an industrial dispute “exists or is apprehended”, but it is not entitled to adjudicate the dispute itself on merits. While exercising power under Section 10(1) of the Act the function of the appropriate government is an administrative function and not a judicial or quasi-judicial function. In performing this administrative function the government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by Section 10 of the Act.”
4(c) In the aforesaid judgment in Telco Convoy Drivers Mazdoor Sangh and Anr. Vs. State of Bihar and Ors. (supra), the Hon’ble Supreme Court also held as follows:-
“In several instances this Court had to direct the government to make a reference under Section 10(1) when the government had declined to make such a reference and this Court was of the view that such a reference should have been made. See Sankari Cement Alai Thozhilalar Munnetra Sangam V. Government of Tamil Nadu ; Ram Avtar Sharma V. State of Haryana; MP. Irrigation Karamchari Sangh V. State of M.P.; Nirmal Singh V. State of Punjab.”
5. Mr. Andley, the learned counsel, appearing for the respondent No. 1/UOI without disputing the aforesaid position of law, submits that the Order dated 11th June, 2001 has been passed on the basis that the AAI has engaged a contractor, namely, M/s Vishal Enterprises to supervise the working of the petitioner and other similarly situated workmen and therefore the petitioner is not AAI’s employee.
6. Be that as it may, it was not for the respondent No. 1/UOI through Under Secretary to usurp the jurisdiction conferred on Industrial Tribunals. In the aforesaid cited decisions, the Hon’ble Supreme Court clearly laid down the position of law and it is now well settled that it is not for a referal authority to delve into the merits of the matter which function is exclusively within the domain of the Industrial Tribunal.
7. In this view of the matter, the impugned Order dated 11th June, 2001 cannot be sustained and is accordingly set aside, directing the respondent No. 1/Union of India, Ministry of Labour, through its Under Secretary, Shram Shakti Bhawan, New Delhi to make a reference for adjudication of the dispute, sought by the petitioner preferably on or before 30th April, 2005 since the reference was sought in 2000 and almost a period of 5 years has been elapsed and a mandamus as per the Telco Convoy’s case (supra) can be issued directing the making of a reference.
8. The writ petition stands allowed and disposed of accordingly.