Indraj Singh vs State of Rajasthan and Another

N.C. Sharma, J.—This is a writ petition by Indraj Singh under Article 226 of the Constitution of India for a mandamus for quashing orders Annexures 1 and 2.

The petitioner was appointed as Conductor by the Rajasthan State Road Transport Corporation, Depot Sikar. However, on account of some misconduct, a charge-sheet was served on him by Depot Manager, Sikar on January 21, 1981. The charge against the petitioner was that on November 28, 1980 when Bus No. 1472 of the Corporation was checked en route Pilani-Khetri at Deogarh, it was found that 10 passengers were travelling without ticket. The second charge related to the carrying of some excess luggage without charging fare for that on another date 7th December, 1980 in Bus No. 6087. A domestic enquiry was conducted and the enquiry officer submitted his report holding the petitioner guilty of the charges. Consequently, the petitioner was removed from service by an order dated April 22, 1981 issued by the Divisional Manager, Sikar.

It appears that the petitioner raised an industrial dispute. Conciliation proceedings were held by the Conciliation Officer. He challenged the failure of conciliation by Annexure-2. Thereafter, the appropriate Government passed the order Annexure- 3. In this order it has been mentioned by the Appropriate Government that on the basis of the report of the Conciliation Officer, it has been found that there were framed above mentioned two charges against the petitioner and after giving charge-sheet and holding a legal domestic enquiry, the services of the petitioner have been terminated. Consequently the State Government was not referring the industrial dispute to the Industrial Tribunal.

As would appear from the decision of their Lordships of the Supreme Court in Telco Convoy Drivers Mazdoor Sangh v. State of Bihar reported in : 1989 (2) LLJ 558 that it is well settled that while exercising powers u/s 10(1) of the Industrial Disputes Act, 1947 the function of the Appropriate Government is an Administrative function and not judicial or guasi-judicial function and that in performing of this administrative function, the State 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. It is true that in considering the question of making a reference u/s 10(1) the State Government is entitled to form an opinion as to whether an industrial dispute exists or is apprehended. The formation of opinion as to whether an industrial dispute exists or is apprehended is not the same thing as to adjudicate the dispute itself on its merits. In the above cited Supreme Court decision, in considering the question whether a reference should be made or not, the State Government had held that the Convoy drivers were not workmen and accordingly no reference should be made. It held that the dispute had been decided by the Government which was not permissible. Their Lordships upon the decision in Madhya Pradesh Irrigation Karmachari Sangh''s case 1985 (1) LLJ 519 where it was held that there may be exceptional cases in which the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. It was further observed that the Government should be very slow to attempt an examination of the demand with a view to declining reference and the court will always be vigilant whenever Governments attempt to usurp the powers of the tribunal for adjudication of the valid disputes to render Section 10 and Section 12(5) of the Act nugatory.

In Telco Convoy Drivers case, the Supreme Court directed the Government to make a reference for the reason that the Appropriate Government had persistently declined to make a reference u/s 10(1) of the Act. Several instances were quoted where the Supreme Court had to direct the Government to make a reference u/s 10(1) of the Act when the Government had declined to make the reference. Reference was made in this connection to Sankari Cement Alai Thozhilalar Munnetra Sangam, Tamil Nadu Vs. Government of Tamil Nadu and Another, Ram Avtar Sharma v. State of Haryana 1985 (2) LLJ 187 M.P. Irrigation Karmachari Sangh v. State of Madhya Pradesh 1985 II C.L.R. 10 and Nirmal Singh v. State of Punjab 1984 LIC 1312 : 1984 (2) LLJ 396.

The present is a case where the services of the workmen had been terminated by the employer after holding a disciplinary enquiry by way of punishment. On account of the provisions contained in Section 11A of the Industrial Disputes Act, 1947, when there is an industrial dispute relating to dismissal of a workman the Industrial Court or Labour Court can go into the question whether the order of the dismissal was justified or not. Section 2A of the Act, by its fictional provision, makes a dispute or difference between the workmen and its employer connected with or arising out of his dismissal, retrenchment or termination, an industrial dispute. In the light of the above facts, it is quite clear that there was a dispute or difference between the workmen and the employer relating to the dismissal of the workman and by virtue of the provisions contained in Section 2A of the Act, it was an industrial dispute. The Appropriate Government, it appears has simply on the basis of the report of the conciliation officer that the petitioner has been removed from service after proper enquiry decided not to make a reference. As already stated, it is not the function of the appropriate Government u/s 10 to go into the merits of the dispute. It has only to form an opinion whether the dispute exists or is apprehended. In the instant case, the industrial dispute existed. Since the matter is lingering on since the year 1985, it would be meaningless to ask the Appropriate Government to reconsider the case. In the circumstances of the case, it would be proper to direct the State Government to make a reference to the Industrial Tribunal, Jaipur on the following industrial dispute forthwith and without any delay: -

Where the dismissal of workman Indraj Singh s/o. Ganeshram, former conductor of Khetri Depot of the Rajasthan State Road Transport Corporation, in pursuance of the charge-sheet served upon him on January 21, 1981 in respect of the two charges and after holding of the disputed enquiry held against him, was not justified.

If so to what relief Indraj Singh workman was entitled.

Government of Rajasthan is hereby commanded accordingly by this Court by writ of mandamus to comply with the above direction forthwith.