Gujarat High Court
Apothecon Pharmaceutical Pvt. Ltd vs State Of Gujarat on 15 October, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9735 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
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APOTHECON PHARMACEUTICAL PVT. LTD.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR DG CHAUHAN(218) for the Petitioner(s) No. 1
RONAK D CHAUHAN(7709) for the Petitioner(s) No. 1
MS.DIXA PANDYA, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 15/10/2025
ORAL JUDGMENT
1. The present writ petition is filed under Articles 226 and
227 of the Constitution of India, challenging the order of
reference dated 09.01.2020 passed by the Learned
Labour Commissioner in Conciliation Case No. 339 of
2019, whereby the industrial dispute was referred to the
Learned Industrial Tribunal, Vadodara, in exercise of
powers conferred under Section 10(1) of the Industrial
Disputes Act, 1947.
2. The relevant facts necessary for adjudication of the
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present case are set out hereinbelow:
2.1. The Petitioner is a registered pharmaceutical
company engaged in the manufacture of pharmaceutical
products, employing approximately 650 workmen.
Respondent No.2 raised an industrial dispute seeking,
inter alia, confirmation of permanency in service from
the initial date of appointment, entitlement to basic pay
with fixed and variable dearness allowances, paid leave
including privilege leave, casual leave, weekly offs, leave
encashment, overtime wages, 20% bonus, as well as
union-related benefits such as contribution and
subscription. The said dispute was referred by
respondent No.1 to respondent No.3, and was registered
as Reference (IT) No. 12 of 2020, which forms the
subject matter of challenge in the present writ petition
before this Court.
3. Heard learned advocate Mr.D.G.Chauhan for the
petitioner.
3.1. Learned advocate Mr. Chauhan, appearing on behalf
of the Petitioner, has challenged the impugned order of
reference primarily on the ground that, out of 61
workmen, the services of 27 individuals have already
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been regularized and they are currently on the rolls of
the Petitioner-Company. It is further submitted that 24
workmen have been terminated from service and have
independently initiated reference proceedings seeking
reinstatement along with back wages. It is also brought
to the notice of this Court that the workman mentioned
at Serial No. 17, namely Ms. Ashaben Solanki, has
resigned from the Union, and the workman listed at
Serial No. 41 passed away on 15.05.2021, subsequent to
the date of reference. Furthermore, it is contended that
seven of the individuals referred to in the impugned
reference are engaged through a labour contractor and,
therefore, do not fall within the definition of "workman"
under Section 2(s) of the Industrial Disputes Act, 1947,
in relation to the Petitioner-Company. Challenging the
existence of an employer-employee relationship with
such individuals, the present petition has been preferred
by the Petitioner. Learned advocate Mr. Chauhan
submits that the Industrial Tribunal lacks jurisdiction
under the Third Schedule of the Industrial Disputes Act,
1947, to direct the regularization of services or to confer
permanency upon the said workers. On this basis, it is
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submitted that the impugned order of reference is
without jurisdiction and is therefore liable to be quashed
and set aside. It is further contended that the status of
the individuals as "workmen" is in dispute and, since
they do not fall within the scope of Section 2(s) of the
Act, the reference itself is vitiated and the petition
deserves to be allowed.
4. Having considered the submissions advanced by the
learned advocate and upon perusal of the impugned
order of reference, it emerges that the Learned
Industrial Tribunal has been directed to adjudicate upon
the demands raised by Respondent No. 2-Union, which
pertain to (1) Regularization of services from the date of
initial appointment; (2) Fitment into the appropriate
basic pay scale; (3) Grant of Dearness Allowance; (4)
Fixed Dearness Allowance; (5) Variable Dearness
Allowance; (6) Leave with wages commencing from the
calendar year 01.01.2019; (7) Privilege Leave; (8)
Entitlement of workmen to accumulate up to 240 days of
Privilege Leave; and (9) Issuance of Privilege Leave
Cards as per the provisions of the Factories Act etc. The
principal contention raised in challenge to the said
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reference is that the Industrial Tribunal lacks the
jurisdiction to adjudicate the issue of regularization of
service, as such a dispute does not fall within the ambit
of the Third Schedule to the Industrial Disputes Act,
1947. This Court has accordingly considered the
definition of "industrial dispute" as contemplated under
Section 2(k) of the Industrial Disputes Act, 1947, which
is referred hereinbelow:-
"Section 2(k) of the Industrial Disputes Act, 1947 defines
'industrial dispute' as:
"any dispute or difference between employers and employers, or
between employers and workmen, or between workmen and
workmen, which is connected with the employment or non-
employment or the terms of employment or with the conditions of
labour, of any person;""
4.1. The definition of "industrial dispute" under Section
2(k) of the Industrial Disputes Act, 1947, can be
analyzed in three distinct parts i.e. (1) there must be
dispute or difference, (2) dispute or difference must be
between the employer and employer or between
employer and workman or between workman and
workman, (3) dispute or difference must be connected
with the employment or with the condition of labour, of
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any person. The first component pertains to the
existence of a real and substantive dispute. The second
relates to the parties who are competent to raise such a
dispute. The third concerns the subject matter of the
dispute, which must relate either to the employment or
non-employment, or to the terms of employment or
conditions of labour, of any individual. With regard to
the jurisdiction of the learned Tribunal to decide the
dispute of regularization, it would be appropriate to
refer the decision rendered by the Apex Court in the
case of Oil and Natural Gas Corporation Ltd. v.
Petroleum Coal Labour Union, reported in (2015) 6
SCC 494, wherein the Apex Court has held as under:-
"Whether jurisdiction of the Tribunal to direct the Corporation to
regularise the services of the workmen concerned in the posts is
valid and legal?
27. The Central Government in exercise of its powers under
Section 10 of the Act referred the existing industrial dispute
between the workmen e concerned and the Corporation to the
Tribunal which rightly adjudicated Point (i) of the dispute (supra)
on the basis of the facts, circumstances and evidence on record
and passed an award dated 26-5-1999 directing the Corporation
that the services of the workmen concerned should be regularised
with effect from the date on which all of them completed 480
days, subsequent to their appointment by the memorandum of f
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appointment. The contention urged on behalf of the Corporation
that the Tribunal has no power to pass such an award compelling
the Corporation to regularise the services of the workmen
concerned is wholly untenable in law. Even if we consider the
same, the said contention is contrary to the legal principles laid
down by this Court in Hari Nandan Prasad v. Food Corpn. of
India, wherein the decisions in U.P. Power Corpn. Ltd. v. Bijli
Mazdoor g Sangh and Maharashtra SRTC v. Casteribe Rajya
Parivahan Karmchari Sanghatana and Umadevi (3)4 were discussed
in detail."
4.2. In light of the aforementioned decision, the first
submission advanced by the learned advocate that the
Learned Tribunal lacks jurisdiction to adjudicate upon
the dispute concerning regularization of services is
found to be untenable in law. Accordingly, the impugned
order of reference cannot be set aside solely on that
ground. With respect to the second contention raised by
the learned advocate, namely, that certain workmen
were terminated subsequent to the order of reference
issued by the Learned Commissioner and that such
termination is already the subject matter of separate
references pending before the Learned Labour Court as
well as the fact that some employees have either
resigned or passed away thereafter, it is observed that
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such individual circumstances can be adequately
addressed by the Learned Tribunal during the course of
adjudication. This Court has referred the decision
rendered by the Apex Court in Sarv Shramik Sangh v.
Indian Oil Corporation Ltd. & Ors., reported in
(2009) 11 SCC 609, wherein the Apex Court held as
under:-
"29. It is true that making a reference under Section 10(1) of the
ID Act is within the discretion of the appropriate Government.
Referring to the unamended Section 10(1) of the ID Act this Court
in State of Madras v. C.P. Sarathy laid down the following
principles:
(i) The Government should satisfy itself, on the facts and
circumstances brought to its notice, in its subjective opinion that
an "industrial dispute" exists or is "apprehended".
(ii) The factual existence of a dispute or its apprehension and the
expediency of making reference are matters entirely for the
Government to decide.
(iii) The order making a reference is an administrative act and it
is not a judicial or a quasi-judicial act.
(iv) The order of reference passed by the Government cannot be
examined by the High Court in its jurisdiction under Article 226
of the Constitution, to see if the Government had material before
it to support the conclusion that the dispute existed or was
apprehended."
5. In view of the foregoing and in light of the decision
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referred to hereinabove, this Court is of the considered
opinion that, while exercising powers under Section
10(1) of the Industrial Disputes Act, 1947, the role of the
Appropriate Government is administrative in nature and
not judicial or quasi-judicial. In exercising such
administrative power, the Government is not competent
to enter into the merits of the dispute or undertake a
determination of disputed factual issues, as doing so
would amount to exceeding the scope of authority
conferred under Section 10 of the Act. Specifically, the
question as to whether the person raising the dispute
qualifies as a "workman" under Section 2(s) of the Act
cannot be decided by the Appropriate Government at the
stage of making a reference under Section 10. This legal
position has been authoritatively settled by the Apex
Court in Telco Convoy Drivers Mazdoor Sangh v.
State of Bihar, reported in (1989) 3 SCC 271,
wherein the Apex Court categorically held that the
Government, while making a reference, is not to
adjudicate upon disputed questions of fact such as the
status of the workman. Accordingly, on this ground as
well, the present petition is devoid of merit and deserves
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to be dismissed
6. It is also pertinent to note that the impugned order of
reference is dated 09.01.2020, whereas the present
petition came to be instituted before this Court on
15.07.2025. It is evident that the Industrial Tribunal is
already seized of the matter, and the adjudication
proceedings are at an advanced stage. The present
petition, filed after an inordinate delay of more than five
years, appears to be an attempt to unnecessarily prolong
and derail the adjudicatory process that had already
commenced long before the filing of this petition and
therefore, the petition is required to be dismissed with
cost of Rs.25000/- which shall be deposited with the
Registry of this Court within a period of two weeks from
the date of this order. Upon such deposit, the Registry is
directed to disburse the said amount in favour of Shishu
Gruh, Paldi, Ahmedabad through electronic mode,
without delay.
7. Resultantly, this petition is dismissed accordingly.
(M. K. THAKKER,J)
NIVYA A. NAIR
