M.P. Irrigation Karamchari Sangh, Gwalior vs State of M. P.

Shiv Dayal, J.

Certain disputes between the Petitioner, the M. P. Irrigation Karamchari Sangh, and its employer the State of Madhya Pradesh, in respect of dearness allowance, etc. arose. The Conciliation Officer, u/s 12 of the Industrial Disputes Act, 1947, after holding conciliation proceedings, sent to the State Government a report u/s 12(4) of the Act, as no settlement was arrived at. His report is dated August 2, 1968.

It appears that the State Government did not take any action under Sub-section (5) of Section 12 of the Act. The Petitioner reminded the State Government and served a notice on it but to no effect. The Petitioner then on February 24, 1969, filed this petition under Article 226 of the Constitution for issuance of a mandamus to direct the State Government to make a reference u/s 10, read with Section 12(5) of the Act. The petition was admitted for hearing on March 21, 1969. It appears that on March 15, 1969, the Labour Commissioner made an order saying that it was not expedient to refer the dispute. There is some controversy between the parties whether this order was communicated to the Petitioner or not, but now it is not material. The Petitioner subsequently amended the petition and added a ground that the said order, which is filed with the return as annexure A, does not fulfil the requirements of the law inasmuch as no reasons u/s 12(5) of the Act, are given for refusing to make a reference.

Shri S. K. Dube, learned Counsel for the Petitioner, contends that no reasons are given in the order refusing to make a reference. Learned Counsel relies on State of Bombay Vs. K.P. Krishnan and Others, .

Section 12(5) of the Act reads thus:-

12 (5) If, on a consideration of the report referred to in Sub-section (4), the appropriate Government is satisfied that there is case for reference to a Board (Labour Court, Tribunal for National Tribunal), it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor.

Two things are particularly remarkable in this section. The first is that the appropriate Government must consider the report which comes to it u/s 12(4), and the second is that if it decides not to make a reference, it must record its reasons and communicate them to the parties concerned. The order of the Labour Commissioner dated March 15, 1969, although in the first paragraph states that the report of the Conciliation Officer was received, it does not say that it was considered. In the absence of any such statement and further there being nothing in the order to clearly show that the report was really considered, the order does not satisfy even the first requirement. What is more, the order does not give any reason for refusing to refer the dispute. The learned Additional Government Advocate contends that the order specifically gives the following reasons:

"SANDARBH KIYA JANA ANUPAYUKTA HAI"

When rendered into English, it reads:-

"It is inexpedient to refer."

His argument is that inexpediency is the reason for refusing to refer the dispute. It is quite clear from the language of the section that wide discretion has been conferred on the Government either to refer or not to refer an industrial dispute, but in exercise of its discretion, three things must be satisfied. (1) The exercise of the discretion must be bona fide; (2) it must be on consideration of relevant and material facts, and (3) the reasons must be of such a character as will show that the question was carefully and properly considered by the Government. In State of Bombay v. K. P. Krishnan (supra), their Lordships have referred to the observations in B. v. Tithe Commissioners (1849) 24 Q B D 459 and stated as follows:-

It may be that the Legislature intended that this requirement would avoid casual or capricious decisions in the matter because the recording and communication of reasons postulates that the reasons in question must stand public examination and scrutiny and would therefore be of such a character as would show that the question was carefully and properly considered by the Government......

Their Lordships then observed:-

The order passed by the Government u/s 12(5) may be an administrative order and the reasons recorded by it may not be justifiable in the sense that their propriety, adequacy or satisfactory character may not be open to judicial scrutiny. In that sense it would be correct to say that the Court hearing a petition for mandamus is not sitting in appeal over the decision of the Government, nevertheless 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 issue, and would be justified in issuing a writ of mandamus even in respect of such an administrative order.

Merely to say that it is inexpedient to refer is not to give reasons which can stand public examination. Moreover, in our view, expediency is a conclusion and not a reason. Expediency means conduciveness to the need of the moment.

We are, therefore, of the opinion that both the requirements of section 12(5) of the Act were not fulfilled in the order of the Labour Commissioner dated March 15, 1969.

The report of the Conciliation Officer was sent to the Government in the month of August 1968. The Government sat tight over it for 7 months and it was even after about four months of this petition having been made that in a haste, the order dated March 15, 1969 was made. When this inordinate delay is considered along with the fact that the State Government, with whom the decision u/s 12(5) rests, is itself a party to the dispute, there is weight and force in the contention that the impugned order was not made bona fide.

This petition is allowed. The order dated March 15, 1969 passed by the Labour Commissioner is quashed and a mandamus shall issue directing the State Government to consider the report of the Conciliation Officer and then to act u/s 12(5) of the Industrial Disputes Act, 1947. Parties shall bear their own costs. The outstanding amount of security deposit shall be refunded to the Petitioner.