Bir Singh vs State of Haryana and Another

V.S. Aggarwal, J.—By this common judgment two civil writ petitions bearing Nos. 1659 and 1660 of 1992 can conveniently be disposed of Since facts are identical, it would be in the fitness of things that relevant facts from C.W.P. No. 1659 of 1992 be resisted.

Petitioner challenges the order passed by the respondent No. 1 refusing to refer the dispute raised by the petitioner to the Labour Court/Industrial Tribunal. The petitioner had alleged that he was working with Respondent No. 2 and, was confirmed on May 13, 1979. Respondent No. 2 served a charge-sheet which in fact, was never served upon the petitioner. No reply had been sent and the Enquiry Officer conducted the enquiry ex parte and gave the findings against the petitioner. The services of the petitioner were terminated. Petitioner raised an industrial dispute and served a demand notice. After receipt of the demand notice, the Labour-cum-Conciliation Officer had a number of meetings for the conciliation. He submitted his failure report to the Labour Commissioner. The Labour Commissioner declined to refer the Industrial Act the Labour Court. The petitioner had filed a review application. The same was also rejected. It is crammed that the said orders are illegal because once the disput had been raised, respondent No. 1 had no jurisdiction to adjudicate upon it or refuse to make a reference.

The contest has been offered by Respondent No. 2. Respondent No. 2 justified the dismissal asserting that the petitioner had misconducted and that there was no fault in the enquiry that was conducted. It was pointed that after the receipt of the failure report of the Conciliation Officer, Respondent No. 1 refused to refer the industrial dispute. The said order is reasonable because in facts and circumstances there was no ground to refer the same.

None appeared on behalf of the respondents when the case was taken up for arguments. Therefore, the Court did not have the advantage of hearing the respondents'' counsel.

The sole submission made by learned counsel for the petitioner in this regard has been that once the dispute had been raised, Respondent, No. 1 had no jurisdiction in refusing to make a reference because it was not a case that the demand was frivolous or perverse. In this regard the contention of the petitioner may be accepted and could not be ignored. Reference with advantage can be made to the decision of the Supreme Court in the case of M.P. Irrigation Karamchari Sangh Vs. State of M.P. and Another, . The Supreme Court held that there may be exceptional cases in which the State Government may, on a proper examination of the demand, when comes to a conclusion that the demand frivolous or Perverse may refuse to make a reference but it should ordinarily be not attempted under the Industrial Disputes Act. In paragraph No. 7 of the judgment, the Supreme Court held as under at-pp 522-523 :

"There may be exceptional cases in which the State Government may, on a proper examination of the demand'' come to the conclusion that the demands are either perverse or frivolous and do not merit a reference. Government should be very slow to attempt an examination of the demand with a view to decline reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid disputes. To allow the Government to do so would be to render See. 10 and Sec. 12(5) of the Industrial Disputes Act nugatory."

Similar question was considered by the Supreme Court in the case of Workmen of Syndicate Bank, Madras Vs. Government of India and Another, while considering a similar question, it was held that the Government ordinarily should not refuse to make a reference. The Supreme Court observed as under at p. 94 :

"........ it would not be right for the Government of India to refuse to make the reference on the ground that the charges of misconduct against the worker were proved during a duly constituted departmental enquiry and penalty was imposed on the worker after following the required procedure. If such a ground were permissible, it would be the easiest thing for the management to avoid a reference to adjudication and to deprive the worker of the opportunity of having the dispute referred for adjudication even if the order holding the charges of misconduct proved was unreasonable or perverse or was actuated by mala fides or even if the penalty imposed on the worker was totally disproportionate to the offence said to have been proved. The management has simply to show that it has held a proper inquiry after complying with the requisite procedure and that would be enough to defeat the worker''s claim for adjudication. Such a situation cannot be countenanced by law."

Similar view prevailed in the subsequent decision in the case of Telco Convoy Drivers Mazdoor Sangh and Another Vs. State of Bihar and Others, . The Supreme Court held that the function of the appropriate Government is an administrative function and not judicial or quasi judicial. It should avoid to delve into the merits of the dispute, in paragraph 13 of the Judgment, the Supreme Court held as under at p. 560 :

"...... It is now well settled that, while exercising power u/s 101) of the Act, the function of the appropriate Government is an administrative function and not a judicial or quasi judicial function, and that in performing this administrative function the Government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by Section 10 of the Act ......''

Lastly, reference with advantage may be made to the decision of the Supreme Court in the case of Rajasthan State Road Transport Corporation and Another Vs. Krishna Kant and Others, . While arriving at the conclusion after discussing the various facts, the Supreme Court held as under at pp 741-742 :

"...... It is not correct to say that the remedies provided by the Industrial Disputes Act 2 are not equally effective for the reason that access to the forum depends upon a reference being made by the appropriate Government. The power to make a reference conferred upon the Government is to be 2 exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex facie. The power conferred is the power to refer and not the power to decide, though it may be that the Government is entitled to examine whether the dispute is ex facie frivolous not meriting an adjudication."

Keeping in view the aforesaid, it is patent that there is no justification on behalf of the State Government to delve into the merits. It has not been concluded that the demand so made is frivolous or absurd. It is entirely for the Labour Court to go into the question if there was a fair enquiry or the order terminating the services of the petitioner were valid/proper or not. Therefore, the impugned orders necessarily cannot be sustained.

For these reasons, both the writ petitions are allowed and the impugned orders are quashed. It is directed that the reference be made in terms of the findings arrived at.