SCA/9424/2007 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9424 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ================================================= 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 ? ================================================= SAURASHTRA SHRAMIK SANGH - Petitioner Versus UNION OF INDIA & 1 - Respondents ================================================= Appearance : MR TR MISHRA for Petitioner : MR AMAR D MITHANI for Respondent : 1, MR HARIN P RAVAL for Respondent : 1, MR KM PATEL, Sr. counsel with Ms. Avanti k. patel for Respondent : 2, ================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 09/09/2008 ORAL JUDGMENT 1. The petitioner – a Trade Union has approached this Court under Article 226 / 227 of the Constitution of India challenging the order passed by the Government of India,. Ministry of Labour dated 15/2/2007 declaring that the dispute raised by the union is not maintainable. This Court [Coram: H.K. Rathod, J] vide order dated 26/10/2007 issued rule which was made returnable in the 2nd week of January, 2008. SCA/9424/2007 2/3 JUDGMENT 2. Facts in brief deserves to be set out as under. On behalf of their member the petitioner union raised demand that Shri Kamlesh Nandkishor Joshi, who is working as daily wage peon at Mahuva branch and who was designated as 'Badhli Siphoy' be made permanent peon from the date of his joining i.e. 26/8/1993 and be given all the benefits of permanency. The conciliation proceedings undertaken by the competent authority failed, and therefore, the report was made. The competent authority vide its order dated 15/2/2007 did not refer the matter for adjudication on the ground that the dispute itself was not maintainable. The said order is impugned in this proceedings. 3. Shri U.T. Mishra for Mr. T.R. Mishra, learned counsel for the petitioner vehemently submitted that the order impugned is absolutely untenable in the eye of law as the concenred authority has gone into the merits of the dispute and decided that the dispute itself was not maintainable. The concerned authority has thus not exercised its jurisdiction vested in it for referring the matter for adjudication. The order therefore deserves to be quashed and set aside and an appropriate direction deserves to be issued for rendering its decision afresh on the failure report submitted by the competent authority. 4. Shri Amar Mithani, learned counsel for respondent no.1 and Shri K.M. Patel, learned counsel for respondent no.2 respectively could not dispute the fact that the impugned order refers to maintainability of the dispute. However they submit that there are many aspects which needs to be gone into and therefore, they have vehemently resisted this petition. SCA/9424/2007 3/3 JUDGMENT 5. Heard learned counsels for the parties. This Court is of the considered view that the order impugned deserves to be quashed and set aside as the authority has not exercised its discretion and considered the factors which are not to be considered at all. The impugned order on the face of it go to show that it is venturing into a subject of which it is not earmarked for the authority. As per the Scheme of the I.D. Act, 1947, Apropriate Government is not to adjudicate the dispute but only to refer it to the concerned forum for adjudication. But in this case, the authority has undertaken a task of rendering an adjudication without there being any material on record, and therefore, the order being unsustainable in law deserves to be quashed and accordingly same is quashed and set aside. 6. The respondents are hereby directed to reconsider the failure report afresh and take an appropriate decision as the matter is pending since long with regard to making reference as envisaged under the provisions of I.D. Act. The decision be taken within a period of eight weeks from the date of receipt of writ of this Court. The petition is allowed accordingly. Rule made absolute to the aforesaid extent only. There shall be no order as to cost. [ S.R. BRAHMBHATT, J ] /vgn