M.M. Kumar, ACJ. - (1.) This appeal filed under Clause 10 of the Letters Patent is directed against the judgment dated 4.2.2009 rendered by the learned Single Judge dismissing the writ petition filed by the petitioner-appellant holding that the petitioner-appellant was an employee of the contractor M/s S.D.S. Security Private Limited, New Delhi, and there existed no relationship of employer and employee between the petitioner-appellant and M/s E.E.L. Limited-respondent No. 3. It has been observed that while exercising jurisdiction of referring an industrial dispute under Section 10 of the Industrial Disputes Act, 1947 (for brevity, the Act) the appropriate Government could not altogether ignore the merits of the nature of the appointment. In that regard reliance has been placed by the learned Single Judge on the judgments of Hon'ble the Supreme Court rendered in the cases of Dhanbad Colliery Karamchari Sangh v. Union of India v. 1991 SUPP (2) SCC 10 and Steel Authority of India v. Union of India, 2006 (4) SCT 481 .
(2.) In the writ petition relatable to the instant appeal, the petitioner-appellant had challenged order dated 22.9.1999 (P-3) and order dated 15.11.2000 (P-5), whereby the reference sought by him under Section 10 of the Industrial Disputes Act, 1947 to the Labour Court, has been declined by the appropriate Government on the ground that there is no relationship of master and servant between the petitioner-appellant and respondent No. 3.
(3.) Having heard learned counsel for the parties and perusing the paper book with their able assistance, we are of the considered view that the matter is no longer res integra. The view taken in the impugned judgment was also taken by a learned Single Judge in the case of Karan Pal Singh v. State of Haryana and others (CWP No. 1287 of 2001, decided on 4.2.2009) , which was subject matter of challenge in LPA No. 1786 of 2010, decided on 17.5.2011. The Letters Patent Bench after noticing the observations made in paras 5 and 6 in an earlier Division Bench judgment of this Court rendered in the case of Gulshan Kumar v. State of Haryana (LPA No. 1786 of 2010, decided on 8.1.2010) allowed the said appeal. The view taken in Gulshan Kumars case (supra) Gulshan Kumars case (supra) reads thus: "5. Learned counsel for the appellant submits that the plea that the workman was in fact 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 settlement or whether adjudication was expedient in the interest of industrial relations, the dispute could not be foreclosed by assuming final adjudicatory authority. 6. 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 others, 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.";