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3. In present proceedings, affidavit-in-reply is filed by respondent No.1, another affidavit-in-reply is also filed by respondent No.3 Union. An affidavit-in-rejoinder on behalf of petitioner against affidavit-in-reply of respondent No.3 is also filed. There is an affidavit of Mr.P.R.Mehta, Manager (ER) of petitioner Company is also on record.

4. Mr.Gandhi learned advocate appearing on behalf of petitioner pointed out in support of challenge made in present petition Page-132 where a letter written to Labour Commissioner dated 1.4.2008 by petitioner (Annexure-L). In the said letter, it has been brought to the notice of Labour Commissioner by petitioner Company that industrial diuspute has been settled between workman and Company on 17.3.2008. Therefore, no reference is required to be made for adjudication of dispute raised in Conciliation Case No.15 of 2007 by Union. This letter has been signed by Mr.Husain Solanki, Secretary of Rasaynik Kamdar Sangh and Shri Prashant Limaye, General Manager of petitioner Company along with 98 workmen, those who have accepted settlement and copy of notice was also published on notice board on 14.3.2008. Therefore, his submission is that Conciliation Case No.15 of 2007 where dispute has been raised by Rajya General Kamdar Mandal is already settled between workmen, Union and petitioner Company. He has also referred the letter dated 30.10.2006 of Rajya General Kamdar Mandal. He also referred settlement dated 14.9.2005 which was challenged before Tribunal in Reference (IT) No.10 of 2004 wherein Industrial Tribunal, Baroda has held by award dated 27.2.2007 that said settlement is found to be just, fair and reasonable. He has also referred the award passed by Industrial Tribunal in respect of Reference No.10 of 2004, Exh.86 (Annexure-F, Page Nos.51 to 100). In the said decision, Industrial Tribunal, Baroda has come to conclusion that settlement arrived at between petitioner Company and Rasaynik Kamdar Sangh, Exh.34, is found to be reasonable, just and proper and on the basis of terms of settlement, award has been passed by Industrial Tribunal, Baroda by an order dated 27.2.2007. This award has been terminated by Rajya General Kamdar Mandal on 30.10.2006 and on 16.1.2007, fresh demand means industrial dispute was raised by respondent No.3 Union. On 1.3.2007, respondent No.3 had issued notice to terminate aforesaid award of settlement (Page-51 to

100) and gave fresh charter of demand. Subsequently, there is a settlement under Section 2(p) of the I.D.Act,1947 with Rasaynik Kamdar Sangh dated 17.3.2008 where each employee has signed the settlement u/s.2(p) of the I.D.Act,1947. He also referred Page-113 where settlement has been signed by each workman. He also referred a letter dated 16.4.2007 (Annexure-I, Page-111) addressed to Assistant Commissioner of Labour, Bharuch by petitioner Company raising objection against the dispute raised by respondent No.3 Union. According to petitioner Company, the Rasaynik Kamdar Sangh is recognized Union and respondent No.3 is not having majority of workmen those who are working with petitioner Company. He also referred to an affidavit (Page-265) of Mr.P.R.Mehta, Manager (ER) of the petitioner Company together with Annexure-I to the said affidavit which bears the signature of each workman those who have accepted the settlement dated 17.3.2008 by which the workmen named in Annexure-I (Page-269) have agreed not to raise industrial dispute against the settlement dated 17.3.2008. He also relied upon to point out that complaint which was made by respondent No.3 Union in respect of unfair labour practice adopted by petitioner Company has been inquired by Government Labour Officer. At page-173, there is a report of Government Labour Officer dated 19.5.2008 where it has been held that no such unfair labour practice adopted by petitioner Company and complaint which has been filed by concerned employees through respondent No.3 is found to be incorrect because in all 110 employees were working with petitioner Company and out of that, 32 workmen have been voluntarily joined the Bharti Mazdoor Sangh. Therefore, question of adopting unfair labour practice by petitioner Company does not arise. Therefore, complaint dated 26.3.2008 and 18.3.2008 has been verified by Government Labour Officer and that complaint has been disposed of as no breach of Section 25T has been committed by petitioner Company. Referring to letter dated 2.4.2008 (Annexure-M, Page-148), he submitted that by that letter petitioner Company and Union both jointly requested to Assistant Commissioner of Labour, Bharuch not to initiate further conciliation and not to refer the dispute before the Industrial Tribunal, Baroda in respect to Conciliation Case No.15 of 2007. On 4.4.2008 a letter (Annexure-O, Page-157) was written by petitioner Company to Assistant Commissioner of Labour giving reply to complaint filed against petitioner Company and out of 110 employees, 102 employees have accepted the settlement and therefore, according to him, conciliation case which has been initiated in response to dispute raised by respondent No.3 Union is required to be filed. That after the failure report submitted by Conciliation Officer to appropriate Government, no decision has been taken by appropriate Government and therefore, writ petition being SCA No.6019 of 2008 was filed by respondent No.3 Union wherein this Court on 10.4.2008 directed to appropriate Government to consider failure report dated 30.10.2007 and to pass appropriate orders or to take decision under Section 12(5) of the I.D.Act,1947 within a period of one month from date of receiving copy of said order and communicate the same to the petitioner Union and employer. Ultimately, on the basis of direction issued by this Court, a reference has been made to Industrial Tribunal, Baroda which is under challenge. Mr.Gandhi has relied upon the decision of Apex Court in the case of ANZ Grindlays Bank Ltd. (Now known as Standard Chartered Grindlays Bank Ltd.) v. Union of India and others reported in (2005) 12 SCC 738. Relevant Para.12, 14 and 16 are quoted as under :

4.2 Except that, Mr.Gandhi has not raised any contentions and not cited any decision in support of this submissions.

5. Mr.M.S.Mansuri learned advocate appearing on behalf of respondent No.3 submitted that report of Government Labour Officer which has been relied upon by petitioner in respect of unfair labour practice not adopted by petitioner Company, has not been communicated to respondent No.3 Union. He relied upon affidavit-in-reply filed by Deputy Labour Commissioner (Page-182). Against which, no rejoinder has been filed by petitioner Company. He also submitted that settlement which has been arrived at as per submissions made by Mr.Gandhi but, that settlement has not been produced before Conciliation Officer or before Tribunal. He also submitted that if the settlement is arrived at on 17.3.2008 under Section 2(p) of the I.D.Act,1947, then such settlement must have to be produced by petitioner Company before the Conciliation Officer where Conciliation Case No.15 of 2007 is pending. But, in fact, copy of this settlement is not produced by petitioner Company or even other Union has also not produced copy of this settlement dated 17.3.2008 before Conciliation Officer. He relied upon Page-124, Item No.16 Sub-Clause(2), which is relevant and therefore, quoted as under:

8. It is necessary to note that affidavit-in-rejoinder which has been filed by petitioner company against the reply of respondent No.3 Union wherein reliance has been placed in a reported decision in the case of ANZ Grindlays Bank Ltd. (supra), more particularly Para.14 but, Para.16 of the very decision has not been quoted and same has been ignored by petitioner company which considered by this Court as referred above.

9. I have considered both affidavits filed by petitioner; one is rejoinder and another is affidavit of Mr.P.R.Mehta. The question is that in such circumstances, against the challenge which has been made by petitioner Company, the order of reference made by appropriate Government under Section 12(5) of I.D.Act,1947 dated 31.5.2008, whether petition can be entertained by this Court while exercising power under Article 226 of the Constitution of India or not. This question is to be examined by this Court in light of the factual background as narrated by this Court hereinabove. The law on this subject has been made clear by Apex Court that disputed question of facts cannot be examined by this Court in petition under Article 226 of the Constitution of India. In this case, dispute itself is apparently from bulky record produced by petitioner company is found. The settlement dated 17.3.2008 with other Unions, according to petitioner company, has been accepted by almost all workmen, even though during the pendency of Conciliation Case No.15 of 2007 before the Conciliation Officer, Bharuch, copy of this settlement is not produced by petitioner company before Conciliation Officer. The settlement has been challenged by respondent No.3 Union on the ground that signature of concerned workmen has been obtained by adopting pressurized tactics as per affidavit of appropriate Government. The genuineness of the settlement itself is under challenge and petitioner company has challenged order of reference dated 31.5.2008 based on very settlement dated 17.3.2008 which settlement has been challenged or disputed by respondent No.3 Union on the ground that signature of concerned workmen has been obtained by adopting pressurized tactics.