M.Katju - (1.) THE petitioner is directed to serve respondent no, 3, personally within two weeks and he may file counter affidavit within three weeks thereafter. List on 29th September, 1993 before the appropriate court.
(2.) SHRI V. B. Singh learned counsel for the petitioner has urged two points before me, firstly he has urged that the Deputy Labour Commissioner has no power to make a reference under section 4 K of the U. P. Industrial Disputes Act. I find no merit in this submission. Under section II A of the U. P. Industrial Disputes Act the State Govt, has power to delegate its power to such other officer subordinate to the State Government as specified in the notification. Such a notification has been made by the State Government on 29-8-1990 (vide U. P. Gazette extraordinary dated 29-8-1990) delegating the power to make references to the Deputy Labour Commissioner and Additional Labour Commissioner in relation to disputes covered by section 2-A. Hence, the Deputy Labour Commissioner and Additional Labour Commissioner are competent to make a reference under section 4-K of the U.P. Industrial Disputes Act to the Labour Court of Industrial Tribunal. Hence the first submission of the petitioner fails. However, I am prima facie satisfied that there is merit in the second submission of the learned counsel for the petitioner that the reference is bad in law because the petitioner has not terminated the services of the respondent no. 2 but has suspended him. The reference order, which is Annexure no. 1 to the petition, is in the following terms : "Kya Sewayojako dwara Sree Uttam Singh chaprasi ki Sewaen samapta kiya jana ya sewa par na lena uchit/vaidhanik hai yadi nahi to sambandhit shramik kis hitlabh/anutosh pane ka adhikari hai tatha anya kin vivaran sahit." The petitioner's' submission is that the respondent no. 3 has only been suspended and an inquiry against him is going on. Hence as held by this court in M/s. Swadeshi Cotton Mills v. The Labour Court, 1981 (42) FLR 225, as well as in Potteries Mazdoor Panchayat v. Perfect Poltery Co., 1979 (38) FIR 38, the reference order prima facie seems to be bad because it has presumed that the services of the respondent No. 3 has been terminated whereas the case of the petitioner is that the respondent no. 3 has only been suspended. Hence the real dispute does not appear to have been referred at all. On this point I am prima facie satisfied that there is some merit and hence notice is issued to the respondents.;