: 1 : wp-3376-11=.doc USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3376 OF 2011 Engineering Mazdoor Sabha .. Petitioners v/s. Registrar – Trade Unions, Maharashtra & Anr. .. Respondents ......... Mr. Arshad Shaikh a/w Gautam Yadav for the petitioners Ms. K.K. Mehta for respondent no.2 Ms. S.S. Bhende, AGP for respondent no.1 Mr. L.K. Gaikwad, Office Superintendent in the Office of Labour Commissioner, Maharashtra State, present in the Court. ......... CORAM : A.M. KHANWILKAR & R.Y.GANOO, JJ. DATE : 22nd JULY, 2011. P.C. : 1. Heard learned Counsel for the parties. The principal challenge in this petition, under Article 226 of the Constitution of India, by the Union, is to the invocation of reference proceedings on the recommendation of the Registrar, Trade Unions Act, 1926 Maharashtra State, Mumbai, vide order dated 7th March, 2011. On the basis of the said reference order, the matter has now landed before the Industrial Court to decide the issues referred to in the schedule of reference. According to the petitioner the reference has been made by the Registrar essentially at the instance of one Shri. Kiran Rasiklal Mehta, who is admittedly not a : 2 : wp-3376-11=.doc member of the petitioners’ Union. He complained about the unauthorised disposition of the property of Union. According to the petitioners, such reference cannot be made by invoking power under Section 28(1A) of the Trade Unions Act, 1926 as applicable to State of Maharashtra. 2. We agree with the argument of the Petitioners Union that going by the plain language of Section 28(1A), such reference can be made only at the instance of a member or Trade Union, as the case may be, with the consent of Registrar. The petitioner is also justified in pointing out that Mr. Kiran R. Mehta, who was not a member of the petitioners’ Union submitted proposal for consent of the Registrar. 3. Be that as it may, on perusal of the impugned reference order, it appears to us that the same has been made at the instance of Law and Judiciary Department, which is obvious from the penultimate paragraph of the reference order, where it is observed as follows. “AND WHEREAS the Law & Judiciary Department has notified this office that the matter should be referred for adjudication to the Industrial Tribunal. Therefore, the dispute as referred in the Schedule : 3 : wp-3376-11=.doc mentioned herein below is being referred for adjudication to the Member of the Hon’ble Industrial Tribunal, Shri S.K. Shalgaonkar”. 4. In this context, when the learned AGP was called upon to justify as to how such reference can be made at the instance of Law and Judiciary Department by invoking power under Section 28(1A) of the Act, in all fairness she had to concede that the regime provided in Section 28(1A) does not permit such a reference. She has taken this stand on instructions of Mr. L.K. Gaikwad, Office Superintendent in the Office of Labour Commissioner, Maharashtra State, who is present in the Court. Learned AGP fairly accepts that the reference so made is ill- advised. Counsel for the respondent no.2 was at pains to persuade us that the submission of the AGP be ignored as it was founded on the instructions of the Officer, who has no authority to make that statement. 5. In view of the said stand taken by the learned AGP and even otherwise as it is clear from the plain language of Section 28(1A), reference can be made only at the instance of member or the Trade Union. It would necessarily follow that the subject proceedings initiated are in excess of jurisdiction. Therefore, we do not think it necessary to : 4 : wp-3376-11=.doc burden this order with the objections and contentions raised by the respondent no.2 on merits of the allegations. Respondent no.2 is free to pursue those matters by way of such remedy as may be advised, in respect of the property of the Union. Those proceedings will have to be decided on its own merits. 6. For the time being, suffice it to observe that the proceedings before the Industrial Court, which are the out come of the impugned reference order cannot be continued any further. 7. Accordingly, this petition ought to succeed. Indeed, it will be open to the Government to take recourse to such other remedy as may be permissible in law in the context of complaint made by respondent no.2 or otherwise. All questions in the said action will have to be addressed on its own merits in accordance with law. 8. Petition made absolute in terms of prayer clause (a), which reads thus :- (a)That this Hon’ble Court be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other appropriate writ, order or direction under Article 226 and 227 of the Constitution of India : 5 : wp-3376-11=.doc and after going through legality and propriety of the impugned order dated 07.03.2011 at Exhibit “F-1” hereto, be pleased to quash and set aside the same. No order as to costs. (R.Y.GANOO, J.) (A.M. KHANWILKAR, J.)