SCA/10179/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10179 of 2008 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 ? ========================================================= MANISH NATWARLAL BHATT - Petitioner Versus UNION OF INDIA & 2 - Respondents ========================================================= Appearance : MR DG SHUKLA for Petitioner:MR RAJESH A VYAS for Petitioner : 1, MR AMAR D MITHANI for Respondent : 1, MR HARIN P RAVAL for Respondent: 1, RULE SERVED BY DS for Respondent: 2, MS NALINI S LODHA for Respondent : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 17/12/2008 ORAL JUDGMENT SCA/10179/2008 2/5 JUDGMENT 1. Heard learned counsel for the parties. Rule. Mr. Mithani, learned advocate waives service of Rule on behalf of respondent No. 1 and Ms. Lodha, learned advocate waives service of Rule on behalf of respondent No. 3. By consent, Rule is fixed forthwith. 2. The petitioner has challenged the order dated 27.5.2008, whereunder the respondent No. 2 has declined the prayer for referring the dispute for adjudication on the ground of delay of 7 years which had not been explained by the workman– petitioner. 3. Shri Shukla, learned counsel appearing for the petitioner contended that even in the notice of demand which is in a prescribed form, the workman has stated that he was terminated only on 15.12.2006 and in the alternative, assuming for the sake of submission without conceding that there was a delay but that in itself cannot be a ground for refusing the request for making Reference at the end of respondent No. 2. The Authority was therefore, required to apply its mind to the relevant facts and circumstances of the case and pass appropriate order strictly in accordance with law. The reason for rejection per-se go to show that the authority has actually emarked upon adjudicatory function as it has not stopped saying that dispute is not SCA/10179/2008 3/5 JUDGMENT required to be referred but has observed that the delay has remained unexplained, the dispute is not required to be referred. Therefore, the order impugned being an order passed on consideration of extraneous grounds for adjudicating the prayer for reference and therefore, same deserves to be quashed and set aside. 4. Shri Mithani, learned advocate appearing for respondent No. 2 has submitted that certificate issued by the Bank produced in this compilation at Annexure – B page12, go to show that the workman concerned had worked for a period from 18.2.1999 to 6.1.2000 only and relying upon that certificate, the prayer for reference is declined and the order therefore, cannot be said to be unjust, improper so as to call for interference under Articles 226/227 of the Constitution of India. 5. Ms. Lodha, learned advocate appearing for respondent Bank has submitted that the contention with regard to so called termination in the year 2006 is not accepted and in fact as could be seen clearly from the certificate dated 17.1.2000, the workman did not work after 6.1.2000 and therefore, she submitted that the order impugned cannot be said to be untenable in eye of law and she submitted that the petition deserves to be dismissed. SCA/10179/2008 4/5 JUDGMENT 6. This Court has heard learned counsel for the parties. The scope of jurisdiction conferred upon the competent authority under Section 10(1) by now have been crystallized and therefore, a specific duty is attached to the Competent Authority to examine as to whether the Industrial Dispute exists and/or is apprehended. The authority is not to arrogate to itself the adjudicatory function on the disputed question of fact. In the instant case, even on the face of it, the order impugned discloses that the prayer for reference is declined on account of delay, which had remained unexplained. In other words, the authority was ready and willing to examine the ground for delay and if it was explained, then, it might have accepted the prayer. Thus in my view it would amount to going beyond the purview and power conferred upon the authority under Section 10(1) of the ID Act. The order therefore is required to be quashed and set aside and is accordingly quashed and set aside. The matter is remanded back to respondent No. 2 for passing appropriate order strictly in accordance with provisions of Section 10(1) of the ID Act with regard to existence of Industrial Dispute or not on the material available on record and take appropriate decision within 90 days from the date of receipt of the writ. SCA/10179/2008 5/5 JUDGMENT 7. With this observation, the petition is disposed of. Rule is made absolute to the aforesaid extend. There shall be no order as to costs. Direct service permitted. (S.R.BRAHMBHATT, J.) pallav