VERMA, J. - (1.) THE petitioner Modern Woolen Mills Ltd. (hereinafter to be referred as `employer') has filed this writ petition against the interim order dated 7. 2. 95 (Annex. 4) passed by the Labour Court in the reference of termination of service of respondent No. 2 Kailash Tiwari on 15. 9. 88, which reference was made in the year 1990 with the reference order to the fact whether the termination order dated 5. 9. 87 of workman was justified or illegal or not? Copy of the statement of claim and the reply has been filed. It was the objection of the employer before the Labour Court that no termination order was passed against the workman and the workman himself had left the job amounting the abandonment, therefore, the reference was not in accordance with the pleadings of parties and the reference ought to have been to the effect whether the workman had abandoned the job or not?
(2.) ON the objection taken by the employer, the Labour Court vide order dated 7. 2. 95 had observed on the contention of the employer that the workman had abandoned the job, and, therefore, no Industrial dispute could be raised; the reference itself was bad. The Labour Court has observed that in view of the pleadings of parties, the reference was in regard to termination of service and if it is found that workman himself had abandoned the job, the appropriate order can be passed in this regard. Against such interim order, the petitioner employer has preferred the writ petition, which is pending right from 1995 and even the petitioner was able to get the proceeding before the Labour Court stayed. Meaning thereby, the termination of the workman in the year 1987, reference of which was made in the year, 1990, is still pending for the last 13 years and yet is to be adjudicated upon. Learned counsel for the petitioner states that a reading of the terms of reference itself would show that the termination is implied and as such the reference so made was bad. Reliance has been placed on the decision of bombay High Court in case of Sheshrao Bhaduji Hatwar vs. P. O. , First Labour Court & Ors. (1 ). Reliance has also been placed on the judgment in case of D. P. Maheshwari vs. Delhi Admn. & Ors. In the case of M/s. India Tourism Development Corporation, New Delhi vs. Delhi Administration, Delhi & Ors. (3) had held that where the real dispute between the parties was whether there was a lock-out or closure in the establishment and the Government referred the dispute by assuming that there was a lock-out, the order of reference was liable to be interfered with as the Labour Court could not travel beyond the reference and decide the question as to whether there was a lock-out. It was held that the case of the management was of closure and, therefore, whether it was a case of closure or lock-out was a real dispute which can more appropriately be determined in industrial adjudication. It was held that the Tribunal could not have enlarged the scope of the dispute. A direction was given to the State Government to make another order of reference in the light as per the submissions of the parties.
(3.) THE Full Bench of Delhi High Court related to the question of lock-out or closure which involves different results and consequences on the decision, if either of the contention is accepted; this case has no relevancy in the case in regard to termination of service. Sitaram Vishnu Shirodkar vs. The Administrator, Government of Goa & Ors. (4), was a case of Bombay High Court. The defence was in regard to termination of the services of workman. On the contrary the case of the management was that the workman had absented from duty. The Government had made a reference about the legality of the termination of service of the workman. The reference proceeded under the basis that there was termination of service. It was held by the Court that the matter in regard to abandonment could not have been taken by the Tribunal, however, above-said case had again came for consideration before the Division Bench of Bombay High Court in the case of Sheshrao Bhaduji Hatwar vs. P. O. First Labour Court & Ors. (supra) as discussed above. It was held that the observations made in the case of Sitaram Vishnu Shirodkar (supra) were per inquerium as the decision of various Supreme Court judgments on the point were not brought to the notice of the Court. Reliance has also been placed by the respondent on the decision of Apex Court in the case of The Cooper Engineering Ltd. vs. P. P. Mundhe (5), wherein it was held that in regard to illegality or defective domestic enquiry pleaded in labour dispute, such question if decided as preliminary issue, and on the decision being pronounced it will be for the management to decide whether it will adduce any evidence before the Labour Court or not; if it chooses not to adduce any evidence it will not be, thereafter, permissible in any proceeding to raise the issue. The Hon'ble Supreme Court had cautioned that there would be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after final award. It shall also be legitimate for the High Court to refuse to intervene at that stage. It was observed as under:- "we should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication. " ;