1. Heard learned advocates appearing for the parties.
2. The petitioner, the registered trade union, has approached this Court under Article 226 of the Constitution of India, challenging the order dated 22.06.2009 passed by respondent no.5, where under the respondent no.5 has opined that the dispute raised is not maintainable and accordingly turned down the request for referring the matter to the adjudicatory machinery.
3. Facts in brief leading to filing this petition would indicate that the petitioner union was espousing the cause of its members who are, as per their demand, were entitled to be treated as workmen of ONGC without any intermediary contractor and as such the dispute was raised and the conciliation proceeding went on. The failure report was submitted, as both parties could not settle the dispute. The failure report was considered by the appropriate authority and after inviting comments from one party that is respondent no.2, the competent authority i.e. Government of India declined the reference to be made to the authority under Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act) and hence being aggrieved and dissatisfied with this order, the petition is filed.
4. Learned advocate for the petitioner has invited this Court's attention to the document at page no.127, Annexure-F-1 and submitted that this exercise was uncalled for as the said exercise has in fact unfortunately resulted into persuading the concern in adjudicating the dispute which is beyond the purview of the authority as the adjudication is to be under- taken by the forum under the I.D. Act.
5. Learned advocate for the ONGC i.e. respondent no.2 submitted that the dispute is in fact not maintainable, as the contractor is duly licensed and the contract labour employees is regulated by the provision of Contract Labour Regulation Act, and as there is no regulation including that state and work there was no requirement for referring the matter for adjudication. However, learned advocate could not controvert the fact that the adjudication is to be done and he supported the order, which is impugned in this petition.
6. Learned advocate Shri Nishant Lalakiya for respondent no.1 submitted that the dispute was viewed from the fact that the contract labour system is not prohibited, so far as the work and trade is concerned and, therefore, referring of the dispute was viewed to be not warranted that has resulted into passing of the order. He submitted that Court may pass appropriate order.
7. This Court is of the considered view that catena of decisions of the Apex Court has time and again held that competent authority that is competent government is acting as an administrative authority and has to satisfy itself qua the likelihood of endangering the peace in the industry and on the basis of the existence of dispute the Government is not to arrogate itself to role of the adjudicator so as to decide the maintainability and/or substance of the dispute, as the existence of dispute is not disputed by anyone, which could be substantiated by a mere glance at the failure report itself. Learned advocate for the petitioner has placed on record two orders of Government of India dated 16.01.2012, wherein also it is mentioned that when the matter was referred, the question was that of contract labour by ONGC only, and in the instant matter also the contractor is also the same and, therefore, there is all the more reason for remanding the matter back to the authority by quashing and setting aside the order impugned and the authorities are to apply mind afresh to the fact in light of the fact that the authorities are not to adjudicate the dispute in any manner.
8. Hence, the order dated 22.06.2009 is hereby quashed and set aside. The matter is remanded back to the authority for deciding it afresh in light of ruling of the Apex Court and in accordance with law. With this observation, the petition is disposed of. Rule is made absolute to the aforesaid extent. No costs.
9. Looking to the fact that failure report dated 07.11.2008, it would be appropriate to direct the authority to decide the same as expeditiously as possible, but not later than 30.11.2012.
Pankaj (S.R.BRAHMBHATT, J.)