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SCA/4864/2011 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4864 of 2011
=========================================================
NARESH
M PARMAR C/O ASSOCIATION OF RAILWAY - Petitioner(s)
Versus
DESK
OFFICER GOVERNMENT OF INDIA & 2 - Respondent(s)
=========================================================
Appearance
:
MR
PH PATHAK for
Petitioner(s) : 1,
None for Respondent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 28/04/2011
ORAL
ORDER
Heard
learned advocate Ms. Kamani for learned advocate Mr. PH Pathak on
behalf of petitioner.
In
present petition, petitioner has challenged order passed by
respondent no. 1 Officer, Government of India, Ministry of Labour
dated 5/5/2009, wherein decision has been taken by respondent no. 1
while exercising power under section 12 subsection 5 of I. D. Act,
1947 and not referred industrial dispute for adjudication on the
ground that claimant has raised matter belatedly after a period of
ten years from the time of alleged discontinuation from employment.
Learned
advocate Ms. Kanani relied upon one decision passed by this Court in
SCA no. 4354/2006 dated 28/2/2011, wherein this Court has directed
to respondent no. 1 to reconsider entire matter and decision dated
10/2/2003 and referred industrial dispute immediately for
adjudication. Therefore, on 30/3/2010, one review application made
by petitioner to Secretary Government of India page 18 Annexure E
but learned advocate Ms. Kanani submitted that there is no response
or reply received by petitioner from respondent no. 1.
This
aspect has been considered by this Court in SCA no. 4354/2006 dated
28/2/2011, wherein an identical question has been considered.
Therefore, relevant observation made by this Court in para 4 to 6
are quoted as under:
4. The
petitioner has approached to respondent No.1 by letter dated
17.7.2005 and requested to respondent No.1 to refer the industrial
dispute for adjudication to appropriate Industrial Tribunal as early
as possible. According to brief facts of present petition, the
petitioner was employed since 1992 to 1994 with respondent Nos.2 and
3. But his service was terminated w.e.f. 1.8.1994. Therefore,
industrial dispute under Section 2A of I.D.Act was raised by
petitioner before respondent No.1. The respondent No.1 after
completion of conciliation proceedings, come to conclusion that Union
has failed to produce certain documents in support of its claim that
workman has worked continuously for 240 days in a year. The
industrial dispute is not maintainable. This decision has been taken
on 10.2.2003 by respondent No.1 and not referred aforesaid industrial
dispute for adjudication to the Industrial Tribunal. This Court has
passed an order on 6.5.2003 in group of SCA No.6337 of 2003 and
allied matters, which is quoted as under :
” Heard
learned advocate Mr. P.H. Pathak on behalf of the
petitioners in these petitions. The Industrial Dispute has
been raised by the petitioners before the respondent No.1. The
respondent No.2 is an employer. The said dispute has been
raised by the petitioners in respect to the termination under
Section 2 (A) of the I.D. Act, 1947. After admitting the matter
in conciliation, the Conciliation Officer has made failure
report to the concerned authority under Section 1 2 (4_ of the I.D.
Act, 1947. Thereafter, the respondent No.1 has passed an order and
decided not to refer the matter for adjudication only on the
ground that dispute was raised after a period of 9 years
without any justification for long delay. Against the said
decision, immediately, the petitioners have approached to the
respondent No.1 with an application to reconsider the case of
the petitioners in light of the detail which has been supplied by the
petitioners to the respondent No.2. Learned advocate Mr. P.H.
Pathak has submitted that though there is a detailed
application where the justification of delay has been
narrated by the petitioners and detail has been given, even though
that application remained pending with the respondent No.1 and no
decision so far has been taken by the respondent No.1.Therefore, he
submitted that some suitable directions may be issued to the
respondent No.1 so he may reconsider the matter in light of the
application submitted by the petitioners and in light of the
decision which is relied by the petitioners and he also
suggested that let the matter may be considered by the respondent
No.1 after giving reasonable opportunity to the petitioners. He
also submitted that in similar situation of other employees,
when there was a delay of nine years, dispute has been referred for
adjudication by the same officer where they were working with the
respondent No.2.
I
have considered the submissions made by learned advocate Mr. P.H.
Pathak. The respondent No.1 has taken the decision on dtd.
30.09.2002 and came to the conclusion that the dispute has been
raised after a lapse of over 9 years without any justification for
the long delay and, therefore, dispute has not been referred for
adjudication. There is no question of any res judicata by the
respondent No.1 in passing such order and respondent No.1 is
entitled to reconsider the matter because whatever the decision is
passed by the respondent No.1 is not a quasi judicial order,
but it is an administrative order. Therefore, respondent No.1
can reconsider the matter and even though, application to
reconsider the matter has been made by the petitioners, but no
decision so far has been made by the respondent No.1. In one
case, respondent No.1 has decided the merits of the matter for
which respondent No.1 having no jurisdiction. Therefore in that
also, learned advocate Mr. P.H. Pathak has submitted that
petitioner will file reconsideration application to the respondent
No.1.
In
view of this submission made by learned advocate Mr. P.H.
Pathak, considering the facts that in all cases except one, the
reference has not been referred for adjudication only on the ground
of delay which has not been justified by the petitioners,
in such circumstances, it is open for the petitioners to justify
the delay by giving detail to the respondent No.1 and in that
occasion, respondent No.1 can consider the matter in light of the
detail which will be supplied by the petitioners. In respect
to one case, where it was decided on merits, even though
respondent No.1 can reconsider the matter after receiving the
application from the petitioner and, therefore, according to my
opinion, it is directed to the respondent No.1 to reconsider
the matter in light of the application submitted by the
petitioners, after considering various decisions which will be
supplied by the petitioners to the respondent No.1 and
after giving reasonable opportunity to the respective
parties and pass appropriate orders in accordance with law within
a period of three months from the date of receiving the copy of
the said order. In view of the above observation and direction,
all these petitions are disposed of accordingly.”
4.1 This
Court in aforesaid order directed to respondent No.1 to re-consider
the matter in light of application submitted by petitioner after
considering various decisions which will be supplied by petitioners
to respondent No.1 after giving reasonable opportunity to respective
parties. The aforesaid order though has been passed by this Court and
in pursuance to that on 18.5.2003, a request was made by petitioner
to re-consider the decision and also request was made to refer the
dispute for adjudication to respondent No.1. But no decision still
has been taken by respondent No.1 though on 17..7.2005 again request
was made by petitioner to respondent No.1.
5. In
light of this background, it is a duty of respondent No.1 to take
appropriate decision when this Court has directed to re-consider the
matter as per order passed by this Court on 6.5.2003.
6. Therefore,
it is directed to respondent No.1 to re-consider the decision dated
10.2.2003 without being influenced by earlier decision dated
10.2.2003 and decision which has been taken by respondent No.1 that
no supporting documents have been produced by petitioner, whether he
has worked continuously for 240 days or not. These questions are not
within the jurisdiction of respondent No.1 to decide merits of the
matter. In case of termination under Section 2A of I.D.Act,1947, the
respondent No.1 must have to refer such dispute for adjudication to
Industrial Tribunal, Central. The respondent No.1 has no jurisdiction
to decide merits of dispute raised by petitioner. The decision dated
10.2.2003 is a decision on merits / adjudication which is not within
the jurisdiction of respondent No.1 and in case when dispute exists,
it is a duty of respondent No.1 to refer the same for adjudication to
Industrial Tribunal.
In
light of aforesaid observation made by this Court in identical case
it is directed to respondent no. 1 to reconsider decision dated
5/5/2009 while considering observation made by this Court in
aforesaid decision and reconsider and reexamine matter. The
question of delay is not come in way of petitioner for raising
industrial dispute. There is no limitation is prescribed under
provision of I. D. Act, 1947 which specified particular limitation
for raising industrial dispute. The decision of Apex Court in case
of Ajayab Singh Vs. The Sirhind Co-operative Marketing Cum
Processing service Society Ltd and Anr reported I AIR 1999 SC 1351
and in case of Sahji Vs. Executive
Engineer, PWD reported in 2005 (5) SCALE 261, are also
required to be considered by respondent no. 1.
Let
this aspect may be reconsider by respondent no. 1 along with
representation made by petitioner being review application dated
30/3/2010. Then to pass appropriate reasoned order in accordance
with law within a period of three months from date of receiving copy
of present order and communicate decision immediately to petitioner.
In
view of above observations and directions, present petition is
disposed of by this Court without expressing any opinion on merits.
(H.K.RATHOD,
J)
asma
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