Agila India Minvariyam Kanakeetalar Mattrum Paam Vasulipavar Sangam vs The State of Tamil Nadu

E. Padmanabhan, J.—The writ petitioner Sangam, has prayed for the issue of a writ of certiorarified mandamus to call for the records

pertaining to the order made in G.O. (D) No. 537 dated 26.6.96 issued by the first respondent declining to refer the said dispute for adjudication,

quash the same and direct the first respondent to refer the said dispute for adjudication before the Labour Court.

K. Panchanathan, who was working as a assessor in the 2nd respondent Electricity Board under the 3rd respondent, was proceeded

departmentally for various misconduct committed by him. After enquiry, the disciplinary authority imposed the penalty of stoppage of increment for

two years with cumulative effect. As against the proceedings of the disciplinary authority, a remedy of appeal and revision were availed. They were

rejected on merits by the competent appellate and revisional authorities. The disciplinary proceedings were allowed to reach finality in terms of the

statutory rules governing the service of the said Mr. Panchanathan.

Thereafter, the petitioner Union moved the Labour Officer raising a dispute. The conciliation failed and a report was sent to the Government.

The State Government by the impugned order dated 26.6.96 declined to refer the dispute on the ground that after ten long years, the Trade Union

has sought for a reference that the claim is stale and belated and, therefore, declined to refer the dispute. Challenging the same the present writ

petition has been filed.

The learned counsel for the petitioner relied upon the unreported judgment of K.P. Sivasubramanian, J., in W.P. No. 11863/96 and contended

that a mandamus has to be issued as prayed for. The learned Judge on the facts of the case held that there is no jurisdiction to refuse to refer the

dispute to the Labour Court and, therefore, quashed the orders and directed the State Government to refer the dispute.

From the said orders of K.P. Sivasubramanian, J., it is not clear as to whether it is non-employment or as to what are the reasons that prevailed

with the Government in declining to refer the dispute.

In this case, the State Government has exercised its discretion, while taking an administrative decision not to refer the dispute taking into

consideration of the facts and there being inordinate delay and the issue is stale. The disciplinary proceedings stands concluded as per statutory

rule. Concedingly, the individual suffered the stoppage of increment for two years during the year 1985 itself and, subsequently, he has been

advanced to higher scale and higher cadre also.

Therefore, the only question that arises for consideration in this writ petition is :-

Whether the order declining to refer the dispute is liable to be interfered under Article 226 of The Constitution ?

It is well settled that when there is a dispute, the State Government has to refer the dispute and it cannot go into or examine the merits of such a

dispute and it is for the Labour Court to decide. But in respect of belated request for reference or claims, which are stale and allowed to become

final, there could be no reference at all. In this respect, the learned Additional Government Pleader referred to the pronouncement of the Division

Bench of this Court in M/S. SHAW WALLACE & CO. LTD. VS. STATE OF TAMIL NADU & OTHERS reported in 1988 (1) LLJ 177. In

the said pronouncement, the Division Bench held thus :-

..... The discretion given in Section 10(1) read with Section 12(5) of the Act has, therefore, to be exercised in such a manner that it would not

exceed the limits prescribed for the sphere of reference and enter into the territory of adjudication. What the Government is expected to decide

before making a reference is whether on a prima facie examination of the facts of the case, there is a dispute which requires a trial or adjudication

by a tribunal or a Court. If there is any matter which requires to be adjudicated, then the Government cannot take upon itself the function of such

adjudication and refuse to refer the matter. If on the other hand, the Government comes to the conclusion that the claim made is so patently

frivolous or that the admitted facts are so glaringly against the workmen, which would not warrant a trial or adjudication by a Court or Tribunal,

then the Government would be justified in refusing to make a reference. Similarly, if the claim is stale and belated, it need not be referred for

adjudication. There may also be cases where a reference would not be conducive to industrial peace in the region or would have an adverse

impact on the general relation of the employer and employee and in such cases also the Government would be justified in refusing to make a

reference.

* * * *

On a final analysis, the following principles emerge:-

(1) The Government would normally refer the dispute for adjudication ;

(2) The Government may refuse to make reference, if -

(a) the claim is very stale ;

(b) the claim is opposed to the provisions of the Act ;

(c) the claim is inconsistent with any agreement between the parties ;

(d) the claim is patently frivolous ;

(e) the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse;

(f) the person concerned is not a workman as defined by the Act ;

(3) The Government should not act on irrelevant and extraneous considerations ;

(4) the Government should act honestly and bona fide.

While following the said pronouncement of the Division Bench, this Court holds that the respondent State Government has rightly declined to make

a reference.

In Avon Services Production Agencies (P) Ltd. Vs. Industrial Tribunal, Haryana and Others, :the Apex Court held that Section 10(1) of The

Industrial Disputes Act confers power on the appropriate Government to refer it in time any industrial dispute, which exists or is apprehended to

the authorities mentioned in the Section for adjudication. Section 10(1) of the Act confers discretionary power and this discretionary power could

be exercised on satisfying that an industrial dispute exists.

It is settled legal position that the Government could refuse to make a reference where the claim is patently firvolous or highly belated, but the

Government cannot adjudicate the dispute. It may be that on mere ground of delay alone the Government cannot refuse when there is a dispute,

which requires to be decided by a Tribunal.

But in this case, it has to be pointed that the claim is highly belated, besides no valid claim could be put forward after the claim being so belated

and the incumbent employee has accepted the findings of the disciplinary authority and has not raised any dispute for considerable number of

years. Further, the petitioner has accepted, suffered the penalty and advanced to higher post and, therefore, there is no alive lis for being decided.

Further, the individual would have reached the age of superannuation by then or sooner thereof.

Hence, following the pronouncement of the Division Bench in the case cited supra, the view taken by the Government cannot be held to be

illegal or in excess of jurisdiction and the impugned orders of the Government declining to refer the dispute is not liable to be interfered under

Article 226 of The Constitution.

In the result, this writ petition is dismissed. No costs.