pvr １ a139-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.139 OF 2009 IN WRIT PETITION NO.2859 OF 2008 M/s.Overnite Express Ltd. ...Appellant vs. 1.Maharashtra Samarth Kamgar Sanghatana & Others. ...Respondents --- Mr.Shailesh S.Pathak, for Appellant. --- CORAM: D.K.DESHMUKH & ANOOP V. MOHTA, JJ. DATED: 7th December,2011. P.C.:- 1. Heard. The facts relevant for deciding this application are that the present respondents no.1 Maharashtra Samarth Kamgar Sanghatana had filed Complaint (ULP) No.453 of 2007 before the pvr ２ a139-09 Industrial Court. It was alleged that the present appellant who was respondent no.1 in the Complaint is guilty of having committed unfair labour practice under Item 1(a), (b) and 6 of Schedule II and Item 6,9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act. The effective reliefs that were claimed are to be found in prayer clause (c) to (h), it reads as under:- (c) Hold and declare that the action of respondent no.1 of keeping the workmen as temporary years together without extending the benefits such as P.F., E.S.I.C. is amounts to an unfair labour practices. (d) Hold and declare that the action of the respondent no.1 of treating the workmen whose names have been shown in Exh. B as contract labourers is amounts to an unfair labour practice. pvr ３ a139-09 (e) Direct the respondents no.1 to make the workmen whose names have been shown in Exh  B as permanent workmen and to show on their muster roll. (f) Direct the respondents no.1 to pay the minimum wages to all the workmen whose names have been shown in Exh B to the main complaint with arrears from the date of their appointment. (g) Direct the respondents no.1 to start granting the facilities of P.F., E.S.I.C., etc. immediately. (h) Direct the respondents no.1 to pay the wages for the month of Sep 2007 and to pay regularly every month on due date. A preliminary objection was raised on behalf of the present appellant to the maintainability of the complaint on the ground that there is no pvr ４ a139-09 employer-employee relationship between the employees on whose behalf the Complaint was filed and the present appellant. That application was decided by the Industrial Court by order dated 11.8.2008. The Industrial Court rejected that preliminary objection and held that the complaint is maintainable. The present appellant feeling aggrieved by that order of the Industrial Court filed Writ Petition no.2859 of 2008. That Writ Petition has been disposed of by order dated 2.2.2009. The complaint of the present appellant against that order of the learned Single Judge is that the Learned Single Judge has not considered in detail the contention urged on behalf of the appellant to show that there is no employer employee relationship between the present appellant and the persons on whose behalf the complaint was filed. The learned Single Judge, however, set aside the order which was challenged in that writ petition and dismissed the complaint as not maintainable. Though, this part of the pvr ５ a139-09 order is in favour of the appellant, it is clear from the record that no reasons have been recorded for making this order by the learned Single Judge. The real grievance of the appellant is against that part of the order made by the learned Single Judge whereby the learned Single Judge has issued directions to the State Government to make a reference under Section 10 of the Industrial Disputes Act for adjudication of the issue raised in the Complaint. The submission of the learned Counsel is that this direction could never have been issued by the learned Single Judge, because firstly the State Government was not a party to the petition, secondly if the learned Single Judge has dismissed the complaint on the ground that there does not appear to be employer-employee relationship between the parties, then reference under Section 10 of the Industrial Disputes Act also will not be maintainable. The learned Counsel further submitted that direction for pvr ６ a139-09 making reference under Section 10 of the Industrial Disputes Act could not have been made by the learned Single Judge suo motu without there being any prayer in the petition. The learned Counsel further submitted that in any case such a direction which is adverse to the interest of the appellant could not have been made in his petition. 2. None appears for original complainant- respondent no.1 though appearance is shown on the board. We have heard the learned Counsel appearing for appellant. We have perused the record. 3. The learned Single Judge by the impugned order has issued direction to the State Government to make reference under Section 10 of the Industrial Disputes Act of the issues that have been raised in the Complaint. The learned Single Judge has totally bypassed the procedure pvr ７ a139-09 that was prescribed by the Industrial Disputes Act for making reference. Section 10 of the Industrial Disputes Act vests discretion on the appropriate Government of referring issues to the Industrial Court or not. The learned Single Judge has taken away that statutory discretion which is vested by the Act with the appropriate Government. The direction issued by the learned Single Judge to the State Government to make reference under Section 10 of the Industrial Disputes Act is a direction adverse to the interest of present appellant, which could never have been issued in the petition filed by the appellant, specially when there is no prayer in the petition to that effect and where the State Government has not been joined as party to the petition. Really speaking the only part of the order by which the appellant is aggrieved is the part by which the State Government has been directed to make a reference. Really, speaking therefore, we could have, at the instance of the pvr ８ a139-09 present appellant, set aside only that part of the order, but we find from the order of the learned Single Judge that the learned Single Judge has dismissed the complaint and set aside the order passed by the Industrial Court holding the complaint to be maintainable without considering the material on record and without giving detail reasons for doing so. The learned Counsel, therefore, fairly submitted that we may remit the petition back to the learned Single Judge so that the matter can be considered in detail by the learned Single Judge. 4. In this view of the matter therefore, in our opinion, the following order would meet the ends of justice:- The order dated 2.2.2009 passed in Writ Petition no.2859 of 2008 is set aside. That petition is remitted back to the learned Single Judge for denovo consideration and decision in pvr ９ a139-09 accordance with law. The learned Single Judge is requested to hear the petition at an early date. The appeal is disposed of. (D.K.DESHMUKH, J.) (ANOOP V.MOHTA, J.)