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Gujarat High Court · body

2005 DIGILAW 185 (GUJ)

BADAHA JASHA GULACHAR 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 the order dated 29th August, 2003/9th September, 2003 passed by the Appropriate Government, whereby the Appropriate Government has refused to make a reference under Section 10 of the Industrial Disputes Act, 1947. (Hereinafter referred to as "the Act" ). Therefore, the present petition has been preferred, inter alia, contending that the petitioner was working with the respondent no. 1 bank since 1990. The respondent no. 1 bank has terminated the services of the petitioner with effect from 6th February, 2003. It is submitted by the learned counsel for the petitioner that though it was established before the Appropriate Government for making a Reference that though the petitioner was working as an employee with the respondent no. 1 bank since years, there is a termination of services by the respondent no. 1 bank in violation of the provisions of the Act. The Appropriate Government has pre-judged the whole case, especially, the industrial dispute raised by the petitioner and thereby, has refused to make a Reference by giving reasonings dated 29th August, 2003/9th September, 2003. In fact, the Reference ought to have been made by the Appropriate Government to the concerned Labour Court. The petitioner is not required to place and prove full-proof case before Appropriate Government and such expectation is too much, unreasonable and excessive and tantamounts to exercise of jurisdiction which is not vested in the Appropriate Government. Hence, the order passed by the Appropriate Government deserves to be quashed and set aside and the matter is required to be remanded for its fresh decision for making a Reference under section 10 of the Act. ( 2 ) I have heard the learned counsel for the respondent no. 1 bank who has mainly contended that the petitioner is already listed at serial no. 4 of the waiting list of recruitment of subordinate staff of Junagadh district against vacancies reserved for ST candidates and he will be considered for appointment whenever his turn comes for employment and therefore, rightly, the Appropriate Government has denied the Reference under section 10 of the Act. 4 of the waiting list of recruitment of subordinate staff of Junagadh district against vacancies reserved for ST candidates and he will be considered for appointment whenever his turn comes for employment and therefore, rightly, the Appropriate Government has denied the Reference under section 10 of the Act. ( 3 ) HAVE also heard the learned counsel Mr. Samir Dave for the respondent nos. 2 and 3 who has supported the decision of the Appropriate Government. ( 4 ) HAVING heard the learned counsel for the rival parties and considering the facts and circumstances of the case, in my opinion, the order dated 29th August, 2003/9th September, 2003 passed by the Appropriate Government not to make a Reference under section 10 of the Act is dehors the provisions of the Act. The petitioner has presented the facts before Appropriate Government that he was working with the respondent no. 1 bank since 1990. He has also narrated mainly the salary paid by the respondent no. 1 bank. He has also established employer-employee relationship. He has also pointed out the dispute is covered under the provisions of the Act. Thus it was not necessary for the petitioner to prove the whole case before Conciliation Officer or the Appropriate Government. The termination of services of the workman, if prima facie, is established, the matter ought to be referred for adjudication under section 10 of the Act. In my view, the Appropriate Government ought not to have pre-judged the industrial dispute. The termination of services and thereafter, again offer of the employment, are not the settlement of all the grievances of the workman. There is no need for this Court to go into fine nicety of the nature of industrial dispute as I am remanding the a matter for a fresh decision by respondent nos. 2 and 3. ( 5 ) IN view of the above discussion, the impugned order is required to be quashed and set aside. Accordingly, the order dated 29th August, 2003/9th September, 2003 passed by the 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. 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. Rule made absolute accordingly with no order as to costs. .