G. Gurumurthy and another vs K. Ramulu and others

Satyanarayana Raju, J.—This is an application under (sic) 226 of the Constitution for the issue of a (sic) of certiorari to quash the order of the Indust(sic) Tribunal, dated 24-11-1954 in Industrial Disp(sic) No. 11 of 1954, and also the order of refere(sic) made in G.O. Ms. No. 1140 (Development) da(sic) 29-6-1954.

On 29-6-1954, in G. O. Ms. No. 1140, Government of Andhra, in exercise of the pov(sic) conferred by S. 10 (1) (c) of the Industrial (sic)putes Act of 1947 referred to the Industrial (sic)bunal, Visakhapatnam, the following issue decision:

Whether the termination of the service. Sri K. Ramulu, Driver, with effect from 1953 is justified; if not, to what reliefs is entitled?

The Salur Motor and General Workers'' U(sic) and the petitioners were mentioned as the ties to the dispute. Notices were duly issuer the parties and they filed written statements (sic)taining their respective contentions. In award, dated 24-11-1954, the Industrial Trib(sic) Visakhapatnam,.held that the dismissal Ramulu (1st respondent) was unjustified that he should be reinstated with effect from date of dismissal.

The Tribunal also held that the 1st respondent dent was entitled to back wages from the of dismissal upto the date of reinstatement including the five months'' wages which the ma(sic)ment admittedly paid to him. Against the award, the petitioners preferred an appeal t(sic) Labour Appellate Tribunal of India at Ma(sic). By their order dated 26-9-1955. the Labour apellate Tribunal affirmed the finding of the (sic)dustrial Tribunal and dismissed the appeal above writ petition was filed in this court on 1955 for the reliefs mentioned above.

On behalf of the petitioners it is tended (1) that there is a valid order (sic) by the Government of Madras on the 13-(sic) declining to refer the dispute for adjudi(sic)nd ''that the said order is conclusive and bind(sic)ig on the successor Government and that the (sic)eference made by the Government of Andhra (sic) illegal inasmuch as the procedure indicated in (sic) 12 (5) was not followed before the reference was made; (2) that the reference made by the Government of Andhra is without jurisdiction (sic)asmuch as the dismissal of a single worker does not constitute an industrial dispute; and (3) that the award directing the reinstatement of the 1st respondent is bad on the merits.

In order to appreciate the above conten(sic)ons, it is necessary to mention briefly the facts (sic)eceding the reference. The Parameswari Bus service was a partnership consisting of the petitioners and others and it was owning several (sic)ses of which MDV 1030 is one. The firm was (sic)ssolved in or about the beginning of 1952 and (sic)e assets of the firm were divided in specie long the partners.

The buses MDV 1030 and ORK 346 fell to (sic)e share of the petitioners at the said division (sic)d they formed themselves into a new partnership. In or about September 1952, there was general strike by several bus employees for (sic)nus and wages, in which the 1st respondent, to was employed as a driver of the bus MDV 10, took a leading part. That strike terminate by 3-10-1952 after the management granted (sic)tain concessions to the employees.

On 6-10-1952 the petitioners directed the 1st (sic)pondent to do the additional duty of picking passengers arriving by the night trains. On 12-1952, the 1st respondent was transferred drive the bus from Salur to Parvatipur. On 12-1952, the 1st respondent was informed by (sic) petitioners that he had disobeyed their ear-(sic) order and that if he should not comply with (sic)t order within a week, his services would be (sic)minated.

The President of the Workers'' Union, Salur, tressed a letter on 8-1-1953 to the petitioners (sic)laining the difficulties that the 1st respondent (sic)t would be put to if he had to shift from (sic)anagaram to Salur and requesting the (sic)agement to reconsider the matter. On 11-1-(sic), the petitioners sent a letter terminating the services of the 1st respondent with effect from (sic)-1953.

Along with the 1st respondent, five other bus (sic)ers were also dismissed by the management about the same time. An attempt at concilia-(sic) by the District Labour Officer resulted in a (sic)ative agreement dated 22-2-1953, between the (sic)ident of the Worker''s Union and the petitioners. The terms agreed to are as follows:

(1) The owners of MDV 1030 and ORK 346 (sic)e to pay wages to the six dismissed workers their case are finally disposed of by an In(sic)rial Tribunal.

(2) The owners agree to pay the wages as the Payment of Wages Act.

(3) The Union agreed to abandon the movement started against the owners from 10-2-1953, (sic)immediate effect.

(4) The owners are at liberty to run the (sic)s with immediate effect.

It appears from the evidence that sub(sic)entry the workers, except the 1st respondent, (sic) reinstated in service. On 13-8-1953, the (sic)ernment of Madras by their Memorandum 65487-P-III/53-2 informed the Secretary of Workers'' Union that the "Government do see any case for adjudication with regard

to the reinstatement of the worker Sri K. Ramulu (respondent) and he is requested to advise the worker to accept the payment of six months" wages as compensation in lieu of reinstatement."

On 11-9-1953, the Labour Officer intimated the petitioners and the president of the Workers'' Union that they should meet him at Bobbili for conciliation. On 18-9-1953, the President of the Union wrote to the petitioners for payment of wages as per the agreement. This was replied to by the petitioners "in their letter dated 23-9-1953. By his letter dated 24-9-1953, the President of the Union requested the Government of Madras to make a reference of the dispute to the Tribunal.

On 26-9-1953, the President of the Union wrote to the petitioners to implement the agreement dated 22-2-1953. On 30-5-1954, the President of Union gave notice to the petitioners intimating them that the members of the Salur Motor Transport and General Workers'' Union would organise a Satyagraha from the 15-6-1954. On 10-6-1954, the Commissioner of Labour wrote to the President of the Workers'' Union that the Assistant Commissioner of Labour would be visiting Vizianagaram on the 28th and he was asked to meet him and represent his grievances.

The President of the Workers'' Union was requested to desist from organising the Satyagraha and not to precipitate matters. On 29-6-1954, the Government of Andhra made a reference under S. 10 (1) (c) of the Act. In the appendix to the Government order, the issues for decision were set out and the employers and the workers, represented by the Salur Motor Transport and General Workers'' Union, were mentioned as the parties to the dispute.

Having mentioned the relevant facts, I shall now proceed to consider the contentions raised on behalf of the petitioners. From the narration of the facts made above, it is clear that the order of the Government of Madras was passed on 13-8-1953. The Workers'' Union made representations with regard to the dispute to the Government of Madras subsequent to their order dated 13-8-1953, and subsequently the Government of Andhra, after its formation on l-10-1953.

The order of the Government refers to the correspondence subsequent to 13-8-1953, viz., the letters from the Workers'' Union dated 24-9-1953 and 30-5-1954 and the letters from the Commissioner of Labour dated 7-12-1953, 13-2-1954 and 14-5-1954. These letters have been exhibited by the Industrial Tribunal. The question then is, is the order of reference made by the Government under S. 10 (1) (c) of the Act without jurisdiction.

It has been argued for the petitioner that the Government of Madras, having declined to make a reference, the Government of

Andhra had no jurisdiction to refer the dispute because (1) the order of the Government off Madras is binding on the Government of Andhra which is its successor; and (2) that the procedure indicated in S. 12 (5) has not been followed by the Government of Andhra before they made the reference under S. 10 (1) (c).

Dealing with the nature and character of an order of reference under S. 10 (1), their Lordships of the Supreme Court observed in State of Madras v, C.P. Sarathy, 1953-1 Mad LJ 212: (AIR 1983 SC 53) (A), thus:

In making a reference under S. 10 (1) the Government is doing an administrative act and the fact that it has to form an opinion as to the factual existence. of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character. The court cannot, therefore, canvass the order of reference closely to see if there was any material before the Government to support its conclusion, as if it was a judicial or quasi-judicial determination.

No doubt it will be open to a party seeking to impugn the resulting award to show that what was referred by the Government was not an industrial dispute within the meaning of the Act, and that, therefore, the Tribunal had no jurisdiction to make the award. But, if the dispute was an industrial dispute as defined in the Act, its factual existence and the expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon, and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because there was, in its opinion, no material before the Government on which it could have come to an affirmative conclusion on those matters.

The order of the Madras Government dated 13-8-1953 was passed on the basis of the material then in their possession. Subsequently there was further correspondence between the President of the Workers'' Union and the Labour Officer and also between the Commissioner of Labour and the Government. The Union gave notice of their intention to start Satyagraha.

The Government, after a consideration of the subsequent events, came to the conclusion that there was a dispute which must be referred for the decision of the Tribunal and they accordingly made a reference under S. 10 (1) of the Act.

The fact that the Government of Madras declined to make a reference does not invalidate the order of reference made by the Government of Andhra. The order passed by the Government of Madras is an administrative order and is neither a judicial nor a quasi-judicial order. It was open to the Government of Andhra to take into account the subsequent happenings and circumstances and in the event of their being satisfied that there was a dispute, to make a reference under S. 10 (1), and that is what the Government of Andhra have done,

The further contention that no reference can be made under S. 10 (1) without following the procedure laid down in S. 12 (5) of the Act is unsustainable. Under S. 10 (1) the Government can make a reference if they are of opinion that an industrial dispute exists or is apprehended. The jurisdiction of the Government to make a reference under S. 10 (1) is independent of the procedure laid down in S. 12 (5).

As has been pointed out in Raju''s Cafe and Others Vs. The Industrial Tribunal and Another, , it cannot be said that before the Government could make a reference under S. 10 (1) of the Act, the procedure indicated in S. 12 of the Act should be followed. The Government can, even independent of S. 12, make a reference under S. 10.

It is then contended that what was referred to for the decision of the Tribunal was not an "industrial dispute" at all and therefore the Industrial Tribunal had no jurisdiction the make the award, and in support of this contention reliance has been placed upon a decision of the Supreme Court in Newspapers Ltd. (sic) State. Industrial Tribunal, (S) AIR 1957 SC 53 (C).

It may be mentioned at the outset that there is no indication either in the order of the Industrial Tribunal or in that of the Labour Appelate Tribunal that this contention was raise before them. Counsel for the petitioners, however, argued that this ground of objection was raised in the statement filed by the petitioner before the Industrial Tribunal and that it was also mentioned in the grounds of appeal file before the Labour Appellate Tribunal.

Even if this ground of objection might ha been so mentioned, it does not appear that it w(sic) pressed before either of the Tribunals. Assuring that it is open to the petitioners to rai(sic) this ground of objection in this Writ petition, may be mentioned that from a consideration the facts stated above, it was the Workers Uni(sic) that had throughout espoused the case of t(sic) 1st respondent.

The agreement dated 22-2-1953 was between the Union and the petitioners. Thereafter the President of the Workers'' Union was complaint (sic)ing that the petitioners had not implement the terms of the agreement arrived at between them. The subsequent agitation was by the W(sic)kers'' Union and the reference made under S.(1) mentions the Workers'' Union and the Petitioners as parties to the dispute.

The contention of the petitioners that t(sic) dismissal of a single worker cannot constit(sic) an industrial dispute, cannot, therefore, be accepted. The case of an individual workman, if poused by the Workers'' Union, constitutes an(sic) dustrial dispute.

The third ground" urged on behalf the petitioners is that the conclusion reached both the tribunals, that the dismissal of the respondent by the petitioners is unjustified, erroneous. It cannot be disputed that the question as to whether the dismissal of the 1st respondent is justified or not, is essentially one fact.

On a consideration of the facts, both the (sic)bunals have concurrently held that the order dismissal of the 1st respondent is an act victimisation and that he is entitled to be Instated in service with back wages. I do find any error in this conclusion which just the interference of this Court under Art. 22.

For the above reasons, the petitioner not entitled to invoke the jurisdiction of Court under Art. 226. This Writ petition, the fore, fails and is dismissed with costs. A (sic) cate''s fee Rs. 100/-.