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Judgment
K.A. Nayar, J.—This petition is to quash Exhibit P-2 order of the Government refusing to refer industrial dispute to adjudication. The petitioner is a trade union representing the workers employed in the second respondent''s establishment. It is stated that S. Muralecdharan Pillai was permanently employed in the bus No. KRQ 5812 owned by the second respondent and the second respondent denied employment to him on September 4, 1987, arbitrarily. The District Labour Officer on October 14, 1987, November 3, 1987, December 8, 1987, December 26, 1987, March 14, 1988, and March 22, 1988, called joint conferences of the parties to consider the issue of denial of employment to Muraleedharan Pillai. Since no settlement was arrived at, a failure report has been sent as required u/s 12 of the Industrial Disputes Act, 1947.
Section 12 of the Industrial Disputes Act, 1947, provides that if any industrial dispute exists or apprehended, the Conciliation Officer may hold conciliation proceedings with a view to bring about a settlement. If a settlement is arrived at, the Conciliation Officer shall send the report thereof to the appropriate Government or authorised officer. If no settlement is arrived at, he has to send a failure report setting out the steps taken by him for ascertaining the facts and the circumstances relating to the dispute and for bringing out a settlement thereof, together with full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at. After considering the report, if the appropriate Government is satisfied that there is a case for reference to the Labour Court or the Tribunal, it may make such reference. In case it is not making such reference, it has to record and communicate to the parties the reasons thereof.
In this case, after submission of the failure report, the Government passed order, Exhibit P-2. It says that the Government have examined the issue in detail and found that Shri Muraleedharan Pillai was employed in the bus service No. KRQ 5812 from March 12, 1987, to September 4, 1987, and attended only 130 days duty during the period. Since the workman must be on continuous service for 240 days in any year, he is not qualified to raise an industrial dispute. Hence, it is stated that the issue does not merit adjudication and the Government does not consider it expedient to refer the issue for adjudication.
In coming to the above conclusion, it can be seen that the Government has adjudicated on the merits of the case. Adjudication is the domain of the Tribunal and the Labour Court. It is not for the Commissioner and Secretary to come to any finding on the merits of the case. The Government''s contention is that the workman is not permanently employed. Even if he is not permanently employed, it is stated that he can question the dismissal, if it is arbitrary. Even termination of the probationer can be the subject-matter of an industrial dispute. It may be, for availing of the benefit u/s 25F of Chapter 5-A, that continuous service of 240 days may be required. But that consideration is not relevant for denial of employment to a permanent workman. That is the contention raised before me.
The consideration which is to be made while exercising power to refer a dispute has been the subject-matter of several decisions. In State of Bombay Vs. K.P. Krishnan and Others, the Supreme Court held that if the court is satisfied that the reason given by the Government for refusing to make a reference is not germane or relevant, the Court can interfere and issue mandamus to reconsider the matter again. Section 12(2) requires the conciliation officer to investigate the dispute without delay with the object of bringing about a settlement. The duty and function of the conciliation officer is, as his very name indicates, to mediate between the parties and to make an effort to settle the dispute. This Court, while hearing a petition for mandamus, is not sitting in appeal over the decision of the Government, but if the Court is satisfied that the reasons given by the Government for refusing to make a reference are extraneous and not germane, then the Court can be justified in issuing a writ of mandamus. In Bombay Union of Journalists and Others Vs. The State of Bombay and Another, the Supreme Court further held that if reference is refused on irrelevant or extraneous considerations or actuated by mala fides, the Court will certainly interfere with the same and so is the case where the reference is refused without any speaking order. In the above decision, the Supreme Court held that (p. 354):
"...........when the appropriate Government considers the question as to whether any industrial dispute should be referred for adjudication or not u/s 10 of the Industrial Disputes Act, 1947, it may consider, prima facie, the merits of the dispute and take into account other relevant considerations which would help it to decide whether making a reference would be expedient or not."
Similarly on disputed questions of fact also the Government should not come to any final decision. The appropriate Government need not write an elaborate order indicating exhaustively all reasons. Therefore, the Government has to state reasons for refusing to make a reference. In f the Supreme Court held that the appropriate Government must reach the decision by taking into account relevant consideration. The Court held that (p. 428):
"The executive have to reach their decisions by taking into account relevant considerations. They should not refuse to consider relevant matter nor should take into account wholly irrelevant or extraneous considerations. They should not misdirect themselves on a point of law."
The Supreme Court also held in the decision in Ram Avtar Sharma and Others Vs. State of Haryana and Another, that while exercising the power of making a reference the appropriate Government performs an administrative act and not a quasi-judicial act and, therefore, even though, prima facie, merits can be adverted to while deciding the question whether the dispute should be referred or not, it cannot delve into the merits of the dispute and take upon itself the determination of lis. The prima facie examination to see whether the claim is frivolous or bogus or claim is mala fide or put forth for extraneous and irrelevant reasons and not for industrial peace, etc., can be gone into by the Government. But an adjudication on the merits of the case cannot be gone into by the executive Government. Therefore, the question whether the person is a workman or not is not a matter to be adjudicated by the executive Government. In Telco Convoy Drivers Mazdoor Sangh and Another Vs. State of Bihar and Others, reviewing the earlier decision, the Court summarised the law as under (at pages 560-561)
"It is now well-settled that, while exercising power u/s 10(1) 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. See Ram Avtar Sharma v. State of Haryana (supra) M.P. Irrigation Karamchari Sangh Vs. State of M.P. and Another, ; Shambu Nath Goyal Vs. Bank of Baroda,
Applying the principle laid down by this Court in the above decisions, there can be no doubt that the Government was not justified in deciding the dispute. Where, as in the instant case, the dispute is whether the persons raising the dispute are workmen or not, the same cannot be decided by the Government in exercise of its administrative function u/s 10(1) of the Act. As has been held in M.P. Irrigation Karmachari Sangh''s case, (supra), 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. Further, the Government should be very slow to attempt an examination of the demand with a view to declining reference and courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid disputes, and that to allow the Government to do so would be to render Section 10 and Section 12(5) of the Act nugatory."
Every person employed in the establishment is a workman as defined u/s 2(s) whether he is temporary or permanent or probationer and the question of working 240 days is relevant only to claim benefit accrued on the basis of continuous service as defined u/s 27B. Since there is an adjudication on the merits of the case and Exhibit P-2 is passed taking into account irrelevant considerations as well, I quash Exhibit P-2. If as a matter of fact the person is not a workman within the definition of "workman" under the Act and, therefore, it was not a fit case for reference, this Court would not have interfered in view of the decision in Prem Kalkar v. State of Haryana (1976) 49 FJR 51 (SC). In the circumstances, I direct the respondents to reconsider the issue. There was no appearance on behalf of the second respondent before me.
Original petition is allowed as above.