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Judgment
D.G. Karnik, J.—Rule. By consent, the Rule is made returnable forthwith. Learned Asst. Solicitor General waives service for respondent No. 1 and Learned Addl. Govt. Advocate waives service for respondent No. 2. Heard.
By this petition, the petitioners challenge the communication dated 7th October, 2009 issued by the respondent No. 1, declining to make a reference of an industrial dispute for adjudication. By a letter dated 27th December, 2008, the petitioner Union informed to the Asst. Labour Commissioner (C) that two workmen, namely Shri Paul Gomes and Shri Raghoba Kotkar who were working in the respondent No. 2 continuously from September, 2006, were not made permanent. The Petitioner Union raised an industrial dispute regarding their permanency and requested the Labour Commissioner to initiate conciliation proceedings and resolve the issue at the earliest. It appears that, thereafter, the respondent No. 2 terminated the services of the said two persons and the said fact was also communicated to the Asst. Commissioner of Labour by the petitioner Union vide its letter dated 4.2.2009.
Notices of conciliation proceedings were issued, but the respondent No. 2 remained absent. The Labour Commissioner, accordingly, submitted a failure report. Thereupon, a request was made by the petitioners to the respondent No. 1 for making a reference to the Industrial Tribunal for adjudication. The said request was rejected by the respondent No. 1 by observing "The workmen were appointed on contract basis only and an agreement dated 1st July, 2006 was also signed between the workmen and the management to this effect. Hence dispute raised does not subsist."
Relying upon a decision of this Court in the case of Satish S/o. Suryabhan Shende and Union of India, Ministry of Labour, Nagpur and Ors. 2010 III LLJ 102 (Bom), learned Counsel for the petitioners submitted that rejection of a reference was improper. In that case, this Court has held that the Government does not have adjudicatory power to decide about the existence of an industrial dispute. On that ground that the order rejecting reference was set aside by the Division Bench.
Learned Counsel for respondent No. 2 submits that there is no objection for referring the dispute to the Industrial Tribunal for adjudication keeping all its contentions open. Learned Asst. Solicitor General submits that he would submit to the orders of the Court.
In view of the decision of this Court in the case of Satish S/o. Suryabhan Shende (supra), and in view of the concession made by respondent No. 2, we set aside the impugned order and direct respondent No. 1 to make a reference. All contentions of respondent No. 2 are kept open.
The petition is allowed. Rule is made absolute in the above terms. There shall be no order as to costs.