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SCA/8251/2010 3/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8251 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
TAHIR
MOHAMMAED ANSARI - Petitioner(s)
Versus
GENERAL
MANAGER TELECOMMUNICATION & 3 - Respondent(s)
=========================================
Appearance :
MR
NAYAN D PAREKH for
Petitioner(s) : 1,
MR PC MASTER for Respondent(s) : 1 - 2.
MS
RV ACHARYA for Respondent(s) : 3 - 4.
GOVERNMENT PLEADER for
Respondent(s) : 4,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 06/09/2010
ORAL
JUDGMENT
1. Rule.
Shri PC Master, learned advocate waives service of notice of Rule on
behalf of respondent nos.1 and 2 and Ms. R.V. Acharya, learned
advocate waive service of notice of Rule on behalf of respondent
nos.. 3 and 4. In the facts and circumstances of the case and with
the consent of the learned advocates for the respective
parties, the petition is taken up for final hearing today.
2. By way of this
petition under Article 226 of the Constitution of India, the
petitioner has prayed for an appropriate writ, direction and order
quashing and setting aside the impugned order/ communication dated
31.1.2008 passed by respondent nos. 3 and 4, by which the appropriate
authority has refused to refer the dispute to the concerned Labour
Court.
3. It appears that
the petitioner raised an industrial disputes against respondent nos.
1 and 2 with respect to his termination and for reinstatement with
full back wages. That respondent no.3 by order dated 31.1.2008
refused to refer the dispute to the Labour Court observing that the
claimant has failed to furnish documentary evidence to establish that
he was employed by the management upto 28.2.2004 hence the matter
raised cannot be construed as an industrial dispute . Being
aggrieved and dissatisfied with the same, the petitioner has
approached this Court by way of filing present Special Civil
Application under Article 226 of the Constitution of India. Relying
upon the decision of this Court in the case of Hardesh Kumar
Rajaram Vs. K.V.B. Unni and Ors. reported in 2000(3) GLR 196 as
well as in the case of Chetan Somabhai Parmar Vs. The Desk
Officer, Govt. of India reported in 2004(3) GLH (UJ) 12,, Shri
Parekh, learned advocate for the petitioner has requested to allow
the present petition and directed the appropriate authority to refer
the dispute to the Labour Court for its adjudication. It is
submitted that as held by this Court relying upon the Supreme Court
judgment it is held that only when the demand is perverse and
frivolous, the appropriate authority can refuse the dispute to be
referred to Tribunal /Labour Court. It is submitted that it is also
held by this Court that appropriate authority while exercising the
power under Section 10 of the Industrial Disputes Act, 1947 cannot
delve into the merits of the case, Therefore, it is requested to
allow the present Special Civil Application.
4. Learned
advocate for the concerned respondent have tried to support the
impugned decision by submitting that as the appropriate authority did
not find any prima facice case and, therefore, the appropriate
authority justified in refusing to refer the dispute to the Labour
Court.
5. Having heard
the learned advocates for the respective parties and considering the
impugned order passed by respondent no.3 in not referring the dispute
to the Labour Court, it appears that the appropriate authority has
tried to enter into the merits of the case, which is not permissible
while exercising under Section 10 of the Industrial Disputes Act.
The controversy in the present case is squarely covered by the
aforesaid two decisions of this Court. Under the circumstances,
present petition deserve to be allowed and impugned communication/
decision of respondent no.3 dated 31.1.2008 refusing to refer the
dispute raised by the petitioner to the Labour Court is required to
be quashed and set aside.
6. In view of the
above and for the reasons stated above, petition succeed. The
impugned order / communication/ decision 31.1.2008 passed by
respondent nos. 3 , by which the appropriate authority has refused to
refer the dispute to the concerned Labour Court is hereby quashed and
set aside and appropriate authority is directed to refer the dispute
to the appropriate Labour Court. It goes without saying that it will
always be upon for respondent nos. 1 and 2 employer to raise the
dispute that petitioner was not working and / or not in employment of
respondent nos. 1 and 2 upto 28.2.2004, all the questions which are
available to respondent nos. 1 and 2 are kept open and they are
required to be dealt with and considered on appreciation of evidence
in accordance with law. Rule is made absolute to the aforesaid
extent.
(M.R.SHAH,
J.)
kaushik
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