TANCOM ELECTRONICS Vs. BHARTIYA KAMGAR KARAMCHARI MAHASANGH

JUDGEMENT

(1.) By this appeal, the appellants challenge the order dated 26th November 2001 passed by the learned Single Judge in writ petition No.1279 of 1998. The facts that are material and relevant for deciding this appeal are that the respondent - Union had filed the petition challenging the order dated 7th June 1996 passed by the Industrial Court dismissing the complaint filed by the Union under the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971. It was a case of the complainant - Union that in the year 1995 the respondent No.1 - present appellants engaged about 40 employees to work in Seepz Zone. In February 1995, the petitioner - Union informed the respondents that 37 out of 40 employees employed by them have enrolled themselves as members of the petitioner - Union. As the present appellants were not paying correct wages to the members of the petitioner - Union and were flouting the provisions of various labour statutes, therefore, the petitioner - Union filed the complaint being complaint (ULP) No.215 of 1995. The complainant - Union inter alia complained in the complaint that the employees of the present appellants who were their members were at all times engaged by the appellants and not through any contractor. This complaint was resisted on behalf of the present appellants. The existence of employee-emoployer relationship was disputed. On the basis of rival pleadings, three issues were framed by the Industrial Court. The Industrial Court held that the complaint itself was not maintainable. The Union filed writ petition before this Court challenging the order of the Industrial Court. The learned Single Judge, relying on the judgment of the Supreme Court in the case of Central Labour Union (Red Flag), Bombay v/s Ahmedabad Manufacturing and Calico Printing Co.Ltd. and ors., reported in 1995(2) SCC 765 held that the complaint itself was not maintainable and therefore the learned Single Judge also held that the petition filed by the respondent - Union was liable to be rejected. However, the learned Single Judge directed the appropriate Government to make a reference under the Industrial Disputes Act, 1947 and the terms of reference were also stated in the order. Paragraph 10 of the order of the learned Single Judge reads as under :-

(2.) The only complaint made by the learned counsel appearing for appellants against the order impugned in the petition is that the learned Single Judge has no jurisdiction to make reference under the Industrial Disputes Act, 1947. The learned counsel submits that though the learned Single Judge has issued direction to the Government to make reference in the entire judgment, there are no reasons given why the learned Single Judge directed the appropriate Government to make the reference. The learned counsel points out that which is the appropriate Government is also not made clear. The learned counsel, relying on the judgment of the Supreme Court in the case of Rashtriya Chemicals and Fertilizers Ltd. and anr. v/s General Employees' Association and ors., reported in (2007) 5 SCC 273, contends that in a writ petition, High Court cannot issue a direction to the Government to make a reference unless the Government has an opportunity to apply its mind to the question whether a reference is to be made or not.

(3.) The respondents have been served, they have chosen not to appear. We have heard learned counsel appearing for appellants and we have gone through the record. Perusal of the judgment of the learned Single Judge shows that the learned Single Judge has noted that she was considering only one question in the judgment viz. whether the complaint of the Union was maintainable before the Industrial Court . In paragraph 4 of the judgment, she observes as under :- "4. The short controversy before me is whether the complaint filed by the petitioner Union in the Industrial Court was maintainable in view of the judgments of the Supreme Court in Central Labour Union (Red Flag), Bombay v/s Ahmedabad Manufacturing and Calico Printing Co.Ltd. and ors., 1995(2) SCC 765, Vividh Kamgar Sabha v/s Kalyani Steels Ltd. and anr., 2001(1) CLR 532 and Cipla Ltd. v/s Maharashtra General Kamgar Union and ors., 2001(1) CLR 754 as also the judgments of the Division Bench of this Court in Hindustan Coca Cola Bottling S/W Pvt.Ltd. and anr., v/s Bhartiya Kamgar Sena and ors., (Appeal No.782 of 2001 in writ petition No.927 of 2001) and in Maharashtra Suraksha Rakshak Aghadi v/s Industrial Credit and Investment Corporation of India Ltd. and ors. (Appeal No.949 of 2001 in writ petition No.1993 of 2001)."