1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7929 OF 2009 Ashok Raghoba Ambre .. Petitioner V/s Union of India & Ors. .. Respondents Mr.Arshad Shaikh i/by Ubiquity Juris for the Petitioner. Mr.S.B.Shetye with Mr.Ajay S.Patil for Res.No.1. Mr.M.D.Siodia i/by M/s.Rustomji & Ginwala for Respondent Nos.2 & 3. CORAM: F.I.REBELLO & J.H.BHATIA, JJ. DATE: 16th November, 2009. P.C.: 1. Rule. Heard forthwith. 2. Petitioner was employed with Respondent No.2. Services of the petitioner came to be terminated. The petitioner filed Petition No.661 of 1992 before this Court which was disposed of on 28.1.2005. By that order the termination was set aside. Learned Bench was pleased to observe that the petitioner is entitled to the status of permanent employee of the Corporation. Against this order the employer/Respondent N.2 approached the 2 Supreme Court. Leave was granted and the appeal was disposed of by the Supreme Court by the judgment reported in Hindustan Petroleum Corporation Limited V/s.Ashok R.Ambre - (2008) 2 SCC 717. What is relevant is paragraph 23 of the judgment, which reads as under:- “We may, however, observe that since the writ petitioner is working with the appellant Corporation since 1984 and by now, he has completed more than two decades, his case for permanency be considered by the Corporation sympathetically. If there is age bar in considering the case of the writ petitioner for permanent appointment, the appellant Corporation will not treat the writ petitioner ineligible on that count in view of the fact that he is already in service of the Corporation since 1984. If there are statutory rules/administrative instructions/guidelines which require minimum educational qualification and/or experience, it is open to the Corporation to insist compliance with such rules/instructions/guidelines. But if there is power of relaxation with the Corporation or any of its officers, the appellant Corporation will consider that aspect as well keeping in view the fact that the writ petitioner was appointed in 1984, has completed service of more than twenty years and is having rich experience.” 3. From the judgment it would be clear that the Supreme Court held that because of the order of termination is bad, ifso-facto does not mean that the petitioner herein 3 would be said to be in permanent employment or could be granted permanency. The reinstatement for wrongful termination would be distinct from treating the person as permanent. The directions in paragraph 23 which are reproduced earlier were considering that the petitioner completed more than 20 years and his case for permanency be considered sympathetically. The requirement of age was waived. Requirement of qualification was insisted upon, however, at the same time, if there was power to relax the qualification, it was directed that, that aspect would be considered for waiving the requirement of qualification. 4. On subsequent judgment of the Supreme Court, the petitioner wrote a letter dated 1.2.2008 to the Corporation with further reminder on 8.4.2008 for grant of permanency. By order of 31.5.2008 without considering his case for permanency, the services came to be terminated on the ground that no work was being performed since long and that there was no requirement. The petitioner was given terminal benefits/ compensation u/s.25F of the Industrial Disputes Act. 5. The petitioner challenged the same by way of writ petition before this Court being a Writ Petition No.1648 of 2008. During the course of hearing the said petition 4 was withdrawn by counsel making a statement that he would have approached the authorities under the Industrial Disputes Act. 6. On behalf of the petitioner, the industrial dispute was raised by Bhartiya Kamgar Karmachari Sanghatana. After proceeding in conciliation, the Conciliation Officer forwarded the failure report on 20.1.2009 to the Appropriate Government, in the instant case, the Central Government. The Appropriate Government thereafter by communication dated 22.5.2009 was pleased to reject the case of the petitioner herein for the following reasons. “The matter pertaining to regularisation/permanency of the workman has already been decided by the Hon’ble Supreme Court of India in SLP No. 10819/2005. Therefore, the CGIT-cum-Labour Court cannot adjudicate the matter again.” 7. It is this order which is the subject matter of the present reference. It is open to the appropriate Government on the failure report being received to reject making reference. However, by doing so, it has to record reasons u/s.12(5) of the Industrial Disputes Act. The section itself cast mandatory duty on the appropriate Government in case where it does not make a reference to record and 5 communicate it to the parties concerned. This order which as now judicially recognised is as administrative order. This Court normally will not interfere if the reasons are germane. Law is also now settled that the matters which can be gone into by industrial adjudication, cannot be ordinarily decided by the appropriate Government. In the instant case, the only reason given by the appropriate Government in refusing to make reference is that the issue has been decided by the Supreme Court. 8. We have earlier reproduced paragraph 23 of the judgment. If the issue had been rejected by the Supreme Court, there would have been no need for the Hon’ble Supreme Court to issue directions as set out in paragraph 23 of the judgment. On the contrary, from paragraph 23 the Hon’ble Supreme Court directed the employer/Respondent No.2 herein to consider the case of the petitioner for permanency. It is therefore clear that the only reason given by the appropriate Government in rejecting the reference does not subsist. In the light of that the following order: (i) The impugned order dated 22.5.2009 is set aside. (ii) The matter is referred back to the appropriate Government/ Respondent No.1 to reconsider the case 6 of the petitioner and thereafter pass an appropriate order. This entire action be completed within three months from today. 9. Rule is made absolute accordingly. No order as to costs. 10.It is made clear that we will not grant any extension of time for the appropriate Government to decide the issue. (F.I.REBELLO, J.) (J.H.BHATIA, J.)