1 Lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1885 OF 2001 Janavadi General Kamgar Mazdoor ] Union having its office at ] C.P.W.D. Office Compound ] Bamanwada, Vile Parle (East) ] Mumbai-400 057 ].. Petitioner versus 1. The Central Institute of ] Fisheries Education, ] Indian Council of Agricultural] Research, Jaiprakash Raod, ] Seven Bunglows, Versova ] Mumbai  400 061. ] ] 2. Union of India ] through the Secretary ] Ministry of Labour, ] Shram Bhavan, New Delhi ] ] 3. Central Advisory Contract ] Labour Board, ] having its office at ] Jaisalmer House, Mansingh ] Road, New Delhi ] ] 4. Regional Labour Commissioner ] (Central), Shram Raksha ] Bhavan, Opp.Priyadarshani ] Eastern Express Highway ] Shiv Shrusti Marg, ] Sion(East), Mumbai 400 022 ] ] 5. M/s.Maharashtra Agencies, ] Sagar Kutir Sangh, ] KWG-21 Seven Bunglows, ] Versova, J P Road, ] Andheri(West)Mumbai-400 061 ].. Respondents. 2 Shri Jaiprakash Sawant for the Petitioner Shri S S Karkera for the Respondents. CORAM : P B MAJMUDAR & R M SAVANT, JJ. DATE : 8th July 2009 ORAL JUDGMENT : PER P B MAJMUDAR J. 1. By way of this Petition, the Petitioner-Union prays that appropriate writ/directions be issued to the Central Government that the services of the concerned employees of the respondent No.1 should not be terminated till the Government takes decision in respect of abolition of employment of contract labour. 2. During the course of hearing, the learned counsel for the Petitioner-Union submitted that the work which is being performed by the workmen in question is perennial in nature and therefore, the concerned workmen should be treated as direct employees of the Respondent No.1. During the course of the hearing, the learned counsel for the 3 Petitioner also submitted that the contract labour is sham and bogus and the concerned employees are in fact in direct employment of the Respondent No.1. In our view, the question as to whether the contract is sham and bogus and whether the concerned workmen are the direct employees, are the question which can be decided by the competent Court and this Court is not in a position to decide such type of disputed questions in a petition under Article 226of the Constitution of India. 3. The learned counsel for the Petitioner further submitted that on behalf of the Petitioner- Union the proceedings were initiated under the Industrial Disputes Act, 1947 however, the concerned conciliation officer has not gone into the said dispute on the ground that the matter is pending before the High Court. This fact is not in dispute. Considering the said aspect of the matter, the issue involved in this matter as to whether the contract is sham and bogus and whether the concerned employees are the direct employees are the questions which can 4 been adjudicated in a dispute before the Industrial Tribunal under Section 10 of the Industrial Disputes Act. Accordingly, the concerned Conciliation officer may submit his failure report to the Respondent No.2. The respondent No.2, after receiving the said failure report, may refer the dispute as per the provisions of the Industrial Disputes Act to the appropriate forum for adjudication. As to whether the dispute is required to be referred to or not is left to the discretion of the Respondent No.2. However, if it is decided to refer the dispute for adjudication to the competent Court, the same will be referred without further delay and the said forum may decide the dispute within a period of three months thereafter. The Petitioner-Union can apply for interim relief before the concerned Court to whom the dispute is referred and the concerned court may decide such application if filed by the Petitioner-Union on its own merits after hearing both the sides. In case, the Respondent No.2 decides to reject the prayer for reference it will be open for the Petitioner-Union to adopt appropriate remedies in this behalf against such decision. 5 4. If the concerned employees are still in service, their services may not be terminated till the appropriate court decides the application for interim relief, if filed by the Petitioner. However, if Petitioner decides not to file an application for interim relief, it will be open for the Respondent No.2 to act in accordance with law. In case it is decided not to refer the dispute, the interim directions given above shall be continued for four weeks from the said decision so that the Petitioner can file appropriate proceedings. Subject to above, this Petition is dismissed. Rule is discharged with no order as to costs. Sd/- sd/- [R.M.SAVANT, J] [P.B.MAJMUDAR, J]