Tarun Agarwala, J. - (1.) HEARD Ms. Bushra Maryam, the learned counsel for the petitioner and Shri Dhruva Narayan, the learned Senior Counsel appearing for respondent No. 2.
(2.) IT is alleged that the petitioner was working as a sales representative in the industrial establishment of respondent No. 2, which is a pharmaceutical company and that, the provisions of Sales Promotion Employees (Condition of Service) Act, 1976 was applicable to the petitioner. IT is alleged that the services of the petitioner was terminated by an order dated 26th of October, 2002 and the petitioner, being aggrieved, raised a conciliation proceeding under the Industrial Disputes Act. IT is alleged that there was a failure in the conciliation proceedings and the Deputy Labour Commissioner, after considering the matter, issued an order dated 13th March, 2003, declining to refer the dispute for adjudication under Section 4-K of the U.P. Industrial Disputes Act on the ground that it was not expedient to refer the dispute for adjudication. The reason for declining to refer the dispute was that the petitioner does not come under the category of the definition of the word "workman" as defined under the U.P. Industrial Disputes Act. The petitioner, being aggrieved by the order of the Deputy Labour Commissioner, has filed the present writ petition. The learned counsel for the petitioner submitted that the Deputy Labour Commissioner, which is the delegated authority of the State Government, has committed a manifest error in declining to refer the dispute, and that the authority had no power or jurisdiction to decide the question as to whether the petitioner was a workman or not under the U.P. Industrial Disputes Act and that the power to decide this question only remains with the Labour Court or the Industrial Tribunal. The learned counsel submitted that the State Government or its delegated authority was vested with the power only to a limited area, namely, as to whether an industrial dispute existed or was apprehended between the parties. The question, whether the petitioner was a workman or a sales promotion employee, was not within the domain of the State Government to consider or decide this matter. In support of her submission, the learned counsel placed reliance upon a decision of the Supreme Court in Ram Avtar Sharma and others v. State of Haryana and another, 1985 (51) FLR 71 and in the case of Sharad Kumar v. Government of NOT of Delhi, 2002 (4) SCC 490. The learned counsel also placed reliance upon a decision of this Court in Radhey Shyam Mishra v. State of U. P. and others, 2005 (2) UPLBEC 1181.
(3.) ON the other hand, the learned counsel for the respondent submitted that the State Government was justified in refusing to refer the dispute on the ground that the petitioner was not a workman and that the authority had satisfied itself subjectively on the basis of the material evidence, that was brought before it, to come to a conclusion that it was not expedient to refer the dispute for adjudication. The learned counsel submitted that since the petitioner was not a workman under the Industrial Disputes Act, no reference could be made for adjudication under Section 4-Kof the U.P. Industrial Disputes Act. In Western India Match Company Ltd. v. Western India Match Co. Workers Union and others, 1970 (20) FLR 297, the Supreme Court, following the ratio of the decision in State of Madras v. C.P. Sarathy, 1953 SCR 834, held that the State Government only issues an administrative order while exercising its powers. The Supreme Court held that the Government could not go into the merits of the dispute and that its functioning was only to refer a dispute for adjudication so that the industrial relations between the employer and its employees may not continue to remain disturbed, and that the dispute, if any, is resolved through a judicial process as speedily as possible. This decision was considered by the Supreme Court again in Shambu Nath Goyal v. Bank of Baroda, Jullundur, 1978 (36) FLR 195, in which it was held that a reference under Section 10 of the Industrial Disputes Act was an administrative act of the Government, on the basis of an opinion formed by the Government as to the factual existence of an industrial dispute.;