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2005 DIGILAW 178 (GUJ)

RAJESH PARSOTTAM GALORIA v. DENA BANK

2005-03-15

D.N.PATEL

body2005
D. N. PATEL, J. ( 1 ) RULE. Learned counsel Mr. K. M. Patel waives service of notice of Rule on behalf of respondent no. 1. Learned counsel Mr. Samir J. Dave waives service of notice of Rule on behalf of respondent nos. 1 and 2. The present petition has been preferred against denial of making a Reference under section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") by the Appropriate Government vide order dated 11th January, 2003 at Annexure "d" to the petition. ( 2 ) THE learned counsel for the petitioner mainly submitted that by not making the Reference, the Appropriate Government has pre-judged the whole industrial dispute. In fact, the present petitioner is working with the respondent no. 1 bank since more that one decade. The services of the petitioner were terminated by the respondent no. 1 bank in December, 2001. Therefore, a complaint was made to the Assistant Commissioner of Labour (Central), Ahmedabad. But instead of making a Reference under section 10 of the Act, to the Labour Court, the Appropriate Government has pre-judged the whole industrial dispute vide order dated 11th January, 2003 mainly for the reason that the petitioner is not entitled to get any relief under the Act. The reason given by the Appropriate Government vide its order dated 11th January, 2003 reads as under:"the disputant Shri R. P. Galoria failed to establish his claim of engagement in subordinate cadre during the period from 1984 to December, 2001 so as to become entitled to any relief under the Industrial Disputes Act, 1947-Therefore, the dispute prima facie dos not exist. " ( 3 ) THUS, from the aforesaid reasoning, the Appropriate Government has tried to establish that first of all, the petitioner ought to be entitled to get a relief under Industrial Disputes Act, 1947 and then only a Reference can be made. This tantamounts to pre-judging the whole industrial dispute and therefore, this Court may quash and set aside the order dated 11th January,2003 at Annexure "d" and the matter may be remanded for a fresh decision by the Appropriate Government for making a Reference under section 10 of the Act. ( 4 ) I have also heard the learned counsel for the respondent no. ( 4 ) I have also heard the learned counsel for the respondent no. 1 bank who has mainly submitted that the petitioner has not established before the Appropriate Government that he is entitled to get any relief under Act and therefore, rightly the Appropriate Government has rejected the contention of the petitioner to make a Reference of the industrial dispute to the concerned Labour Court. In fact, looking to the number of days for which the petitioner has worked, entitles not, the petitioner to get any relief under the Act, as a result, the decision of the Appropriate Government, not to make a Reference is true, correct and in consonance with law. ( 5 ) I have also heard learned counsel Mr. Samir Dave appearing for respondent nos. 1 and 2, who has supported the impugned order passed by the Appropriate Authority. ( 6 ) HAVING heard the learned counsel for the respective parties and considering the facts and circumstances of the case, in my opinion, the Appropriate Government cannot pre-judge the industrial dispute, much less, by the reasoning given by it vide order dated 11th January, 2003 which is at Annexure "d" to the memo of the petition. The workman has not to establish his case so full-proof that nothing is left out for Labour Court to be adjudicated upon. It is not the law that, Appropriate Government has to conclude the industrial dispute or has to check all the probabilities or chances of success by the workman. Reference ought to be made even if the workman may lose his case at the end of adjudication of proceedings. Over-enthusiasim shown by the Appropriate Government has been revealed from the order itself. It appears that the Appropriate Government might have looked at the ignorance of the workman in calculation of number of days for which he has worked, (workman has ignored holidays to be added in calculation), but it ought to be kept in mind by the Appropriate Government that the power has been vested in it to examine whether an industrial dispute is in existence. Industrial Disputes Act, 1947 is a welfare legislation. Whenever there is an industrial dispute, reference ought to be made, especially in the present case, when the workman has established before Appropriate Government that he is working since more than one decade, there is employer-employee relationship and there is a termination of his services. Industrial Disputes Act, 1947 is a welfare legislation. Whenever there is an industrial dispute, reference ought to be made, especially in the present case, when the workman has established before Appropriate Government that he is working since more than one decade, there is employer-employee relationship and there is a termination of his services. If prima facie, the workman can establishment his employment with the respondent no. 1 bank and the termination of his services, the dispute ought not to have been pre-judged by the Appropriate Government. Suffice it to say that the impugned order passed by the Appropriate Government requires to be quashed and set aside and the matter is required to be remanded to it for afresh decision in accordance with law. ( 7 ) IN view of the aforesaid facts and circumstances, the order dated 11th January, 2003 passed by respondent no. 3- Appropriate Government at Annexure "d" to the petition is hereby quashed and set aside. The matter is remanded to the respondent no. 3. The respondent no. 3 Appropriate Government is hereby directed to decide afresh the Reference process after giving an opportunity of hearing to the petitioner as well as respondent no. 1 bank. I hope and trust that the Appropriate Government shall complete the said process as early as possible and practicable and preferably within a period of four weeks from the date of receipt of writ from this Court. It is clarified that while taking a fresh decision of making a Reference, the Appropriate Government shall not be influenced in any manner whatsoever, by the observations made hereinabove. The aforesaid observations are without prejudice to rights and contentions of respondent no. 1. Rule made absolute accordingly with no order as to costs. .