1 S. B. CIVIL WRIT PETITION NO.250/97 NAWAB KHAN V. STATE OF RAJASTHAN & OTHERS. DATE OF ORDER ::: 21-01-2008 PRESENT HON'BLE MR. JUSTICE MOHAMMAD RAFIQ Reportable. Mr. C.P. Trivedi, for Petitioner. Mr.D.K.Parihar, for Respondent. Mr.Shyam Ladrecha, G.A., for State. Heard learned counsel for the parties. Under challenge in this petition is the order dated 28th of September, 1996, whereby the appropriate Government, upon receipt of failure report under Section 12 (4) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act of 1947'), declined to refer the industrial dispute to the Labour Court/Industrial Tribunal. I have heard Shri C.P.Trivedi, learned counsel for the petitioner, Shri D.K. Parihar, learned counsel representing the management and Shri Shyam Ladrecha, learned Government Advocate for the State. Shri C. P. Trivedi, learned counsel for the petitioner, has 2 argued that the Government by the impugned order dated 28th September, 1986, has refused to refer the dispute to the Industrial Court on the premise that the petitioner had received all his dues and his appointment was made through contractor. He submitted that it was not for the Government to decide whether the appointment of the petitioner was made directly by the respondent-management or through the contractor and whether he has received all his dues. He argued that the Government, in doing so, has exceeded its jurisdiction. The petitioner's initial appointment was made with the respondent – management way back in the year, 1977 and, thereafter, he was confirmed on the post of Clean Feed Operator on 1st October, 1980. It was, therefore, wrong to contend that his appointment was made through the contractor. Learned counsel, in this connection, relied on the certificate issued to him by the Personnel Manager of J. K. Cement Works, Nimbahera (a Division of J. K. Synthetics Limited) way back on 24th September, 1993, which gives the service particulars of the petitioner as also pay details. In support of his contention, the learned counsel for the appellant relied on the judgment of this Court given in Om Prakash v. The State of Rajasthan & Others in S. B. Civil Writ Petition No.7648/2005, decided on 21st September, 2005, and argued that it was held by this Court that even when there are disputed facts, that by itself does not afford 3 any basis to the Government to deny the making of the reference. On the other hand, Shri Shyam Ladrecha, the learned Government Advocate for the respondents, has argued that the Government has the right to consider the genuineness of the dispute and in appropriate cases also, to deny referring of disputes to the competent court when it finds that there does not exist any industrial dispute. Shri D.K. Parihar, learned counel for the respondent – management, in particular, referred to sub-section (5) of Section 12 of the Act and argued that even on consideration of failure report, if the appropriate Government is satisfied that there is a case for reference to the competent court, it may make such reference. However, if the Government does not make such reference, then it has to record reasons and communicate the same to the parties concerned its reasons therefor, which has been done in the present matter. In the instant case, the Government has rightly declined to make a reference, because the petitioner, without protest, accepted all his dues and that his appointment was made through the contractor. I have heard learned counsel for the parties and perused the material, forming part of the record. Upon consideration of the matter, the situation boils down to this that whether the petitioner was directly engaged by the respondent or whether he 4 was appointed through the contractor. The certificate issued to the petitioner by the Personnel Manager of J. K. Cement which forms part of the record, does prima facie show that he was engaged at the relevant as Clean Feed Opertor on 1st April, 1980 and was, thereafter, confirmed on 1st October, 1980, with basic pay of Rs.308/-, D.A. Rs.404/- and other allowances Rs.185/-, thus he was receiving a total of Rs.897/- as salary. He was contributing provident fund also. Respondents, including respondent-management, have not disputed the contents of this certificate. Moreover, the fact is that he has received all his dues, with or without any protest is also a question of fact which shall be determined on the basis of the evidence that may be led by both the parties before the Court which shall also examine its effect on validity of the order of termination. As rightly held by this Court in Omprakash, Supra, the Government cannot take upon itself the task of deciding all the disputed questions of fact, one way or the other as it is not the adjudicating authority in itself. In my considered view, therefore, Government was not justified in refusing to make a reference to the Industrial Tribunal. I, therefore, while setting aside the impugned order dated 28th September, 1996, direct the appropriate Government to make the reference to the concerned Labour Court/Industrial 5 Tribunal within two months from the date of production of a certified copy of this order before it. The writ petition is accordingly allowed. (MOHAMMAD RAFIQ), J. scd.