MUKESHBHAI RASIKBHAI SHAH Vs. GUJARAT TECNOCASTING PRIVATE LIMITED

JUDGEMENT

(1.) Learned Advocate Mr.B.V.Lakhia appearing on behalf of petitioner. Learned A.G.P. Mr.Gharaniya appearing on behalf of respondent No.2. Learned Advocate Mr. Nagesh Sudh appearing on behalf of respondent No.1. In the present petition the rule made returnable on 5th October, 1999 by order dated 24th August, 1999. Heard the learned advocates. In the present petition, the petitioner is challenging the order passed by respondent No.2 dated 13th November, 1998 at Annexure A to the petition wherein, the respondent No.2 has come to conclusion that petitioner is not a workman under Section 2(s) of the Industrial Disputes Act, 1947 and therefore, it is not a fit case for reference. The petitioner had filed individual complaint under Section 2(A) of the Industrial Disputes Act on 3rd August, 1998. The said complaint is filed by the petitioner challenging the termination order dated 1st August, 1998. According to the petitioner he was appointed initially as a wireman by order dated 15th April, 1993 and was required to do work of maintenance of E/C panel and electrical maintenance of furnace. He was required to come in general shift. The factory was run in three shifts and the petitioner was required to come to the factory for any maintenance work except general shift. The company was paying him over time at a single rate. Just to avoid over time payment to the petitioner the respondent No.1 has promoted the petitioner to the post of Manager Maintenance but, nature of work and responsibility remained the same. The petitioner was working as a technical person not having any supervisory or managerial powers except to perform technical work. The service of the petitioner was terminated by the company in respect to having some difficulty about payment of over time on 1st August, 1998. Therefore, the petitioner had challenged the said termination order under the machinery of Industrial Disputes Act. The company has filed reply before the respondent No.2 and pointed out that petitioner is not a workman and relying upon judgement of Bombay High Court in Writ Petition No. 596 of 1994. Against that petitioner had pointed out that merely designation of Maintenance Manager and salary is not relative factor in coming to the conclusion whether petitioner is not a workman. It was further pointed out by the petitioner that he was doing a special technical type of duties. After considering rival submissions by the respondent No.2 has decided that petitioner is not a workman under Section 2(s) of Industrial Disputes Act and therefore, it is not a fit case for reference. The said order is under challenge.

(2.) The Learned Advocate Mr. Lakhia has relied upon the decision of Apex Court reported in case of Telco Convoy Driver Mazdoor Sangh and anothers v. State of Bihar and others reported in A.I.R. 1989 Vol.76 Supreme Court page 1565. Shri Lakhia submitted that respondent No.2 has decided as if respondent No.2 is acting as a adjudicate authority. For that respondent No.2 have no power under Section 10 of Industrial Disputes Act. He also pointed out that respondent company and respondent No.2 has not filed any affidavit against the petition. He also pointed out that respondent No.2 has not given any reason in support of its conclusion. He simply passed a none speaking order. He considered the rival submissions but, without going into the details simply passed an order contrary to the provisions of Section 10 of Industrial Disputes Act. He submitted that respondent No.2 can not have power to adjudicate the issue and to decide the merits of industrial dispute while exercising the powers under Section 10 of Industrial Disputes Act. Mr. Lakhia pointed out that it is the duty of respondent No.2 to pass a speaking order by giving reason in support of his conclusion and what material has been considered in coming to such conclusion same shall have to discuss and required to be disclosed. Therefore, apparently respondent No.2 has committed error which is apparent on the face of record.

(3.) At this juncture the view taken by Apex Court in similar case of Telco referred as above. The relevant observation of the above decision in paragraph Nos. 11 and 13 are as under :