H.K. RATHOD, J.

1. Heard learned Advocate Mr. H.M. Thakker for petitioner-company, learned Advocate Mr. M.S. Mansuri for respondent No. 1 on behalf 4 workmen and learned AGP Mr. A.L. Sharma for respondent No. 2. In present petition, petitioner has challenged order of reference passed by Assistant Commissioner of Labour, Bharuch while exercising power u/s 10(1)(c) of I.D. Act, 1947, dated July 31, 2003.

2. Affidavit-in-reply is filed by one Shri Ajit Balkrishnan Kadu, who is respondent.

3. Learned Advocate Mr. Thakker for petitioner-company submitted that petitioner- company has entered into settlement with Rasayanik Kamdar Sangh on January 10, 2002 and under said settlement, 94 employees including present 4 employees received all benefits. Said settlement briefly referred to as Voluntary Separation Scheme which is annexed to present petition as Annexure-B. The present 4 workmen, those who have raised dispute which referred for adjudication, Shri A.B. Kadu received Rs. 2,95,000/- Shri J.T. Modi received Rs. 2,95,000/- and Shri D.B. Singh received Rs. 3 lacs and Shri M.M. Mansuri also received Rs. 3 lacs in pursuance to aforesaid settlement.

4. Learned Advocate Mr. Thakker submitted that a charter of demand (Page-32) raised by Rasayanik Kamdar Sangh has not been referred for adjudication by appropriate Government vide order dated January 25, 2002. Therefore, in present case, dispute is referred for adjudication is beyond jurisdiction of Assistant Commissioner of Labour, Bharuch and for that, Assistant Commissioner of Labour, Bharuch has no powers to pass such orders when matter has been settled between both parties in pursuance to settlement u/s 2(p) arrived at with Union and on that basis, benefits accrued thereon received by each respondent workman. He also submitted that identical dispute raised by one Shri D.R. Singh and other 50 employees subsequently after receiving amount as per settlement before Assistant Commissioner of Labour, Bharuch and Conciliation Officer, Bharuch which dispute has not been referred for adjudication by Assistant Commissioner of Labour, Bharuch vide his order dated June 30, 2004. He further submitted that aforesaid order of Assistant Commissioner of Labour, Bharuch is not challenged by any workman or Union to higher forum.

4.1 Learned Advocate Mr. Thakker has placed reliance on a decision of Apex Court in case of The Secretary Indian Tea Association vs. Ajit Kumar Barat and Others, (2000) 3 SCC 93. Relevant Head Note is quoted as under:

Before making a reference u/s 10 of the Act the appropriate Government has to form an opinion whether an employee is a workman and thereafter has to consider as to whether an industrial dispute exists or is apprehended. In the present appeal we find that the State Government rightly approached the question whether respondent No. 1 was a workman. Unless this condition is satisfied no reference can be made. Also, on the above material on record the State Government rightly formed the opinion that respondent No. 1 was not a workman.

Before making a reference for adjudication of a dispute u/s 10 of the Act the appropriate Government has to form an opinion whether an employee is a workman and thereafter has to consider as to whether an industrial dispute exists or is apprehended.

4.2 Learned Advocate Mr. Thakker has placed reliance on a decision of Apex Court in case of A.K. Bindal and Another vs. Union of India and Others, (2003) 5 SCC 163. Relevant observations of aforesaid decision relied upon are in Para 34 which is quoted as under at pp. 1093 and 1094 of LLJ:

34. This shows that a considerable amount is to be paid to an employee ex-gratia besides the terminal benefits in case he opts for voluntary retirement under the Scheme and his option is accepted. The amount is paid not for doing any work or rendering any service. It is paid in lieu of the employee himself leaving the services of the company or the industrial establishment and forgoing all his claims or rights