O.P. Gauba vs State of Haryana and Another

A.L. Bahri, J.—In this Writ Petition filed under Article 226 of the Constitution of India, Shri O.P. Gauba, petitioner, challenges three orders passed by the State of Haryana, respondent No. 1, dated December 6, 1985, July 19, 1986, and January 12, 1987, annexures P-12, P-13 and P-15, respectively, and prays for a Writ of Mandamus directing respondent No. 1, State of Haryana, to make a reference of the Industrial Dispute to the appropriate forum.

The petitioner, O.P. Gauba, was employed with respondent No. 2, Kelvinator of India Ltd., at Ballabgarh, Haryana. His services having been terminated, he approached the State of Haryana, respondent No. 1, for making reference of the industrial dispute relating to his dismissal from service to the Labour Court/Tribunal for adjudication. This was done after conciliation proceedings failed. Vide order annexure P-12, reference was declined by the Deputy Secretary, Government of Haryana, Labour Department. It would be useful to reproduce the same as the question debated relates to it:

"On the subject cited above that you are hereby informed that the Government does not feel fit to send your case for adjudication in the Court of law. From the perusal of file it is found that your demand letter is baseless and without substance. On the perusal of previous record and the serious charges levelled against you which were proved against you in accordance with law, hence your services are terminated by the management". It was, thereafter, that the petitioner again approached the State Government, vide his two representations which were declined.

Although in the main Writ Petition certain allegations of mala fides have been leveled against the officers of the respondent- company and it is also alleged that the enquiry conducted against him was not fair on the grounds mentioned in his demand notice, annexures P-10 and P-11, and in the written statement filed on behalf of respondent No. 2, the company, these allegations have been refuted and the stand taken by the respondents has been sought to be justified, it is not necessary to refer to the same as these matters are required to be adjudicated upon by the Labour Court as and when the dispute is referred.

The only question for consideration in this petition is about the validity of the order passed by respondent No. 1, annexure P-12, which has been reproduced above. On behalf of the respondent-company stress has been laid on the decision of the Supreme Court in State of Bombay Vs. K.P. Krishnan and Others, and another decision of the Supreme Court in Bombay Union of Journalists and Others Vs. The State of Bombay and Another, on the point that u/s 12(5) of the Industrial Disputes Act the appropriate Government could go into the merits of the case to find out that there was no prima facie case for making out the reference. It would be useful to reproduce the passage from the latter decision as referred to above (at page 36):

"It is true that if the dispute in question raises questions of law, the appropriate Government should not purport to reach a final decision on the said questions of law, because that would normally lie within the jurisdiction of the Industrial Tribunal. Similarly, on disputed questions of fact, the appropriate Government cannot purport to reach final conclusions, for that again would be the province of the Industrial Tribunal. But, it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised u/s 10(1) read with Section 12(5), or not. If the claim made is patently frivolous, or is clearly belated, the appropriate Government may refuse to make a reference. Likewise, if the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse, the appropriate Government may take that into account in deciding whether a reference should be made or not. It must, therefore, be held that a prima facie examination of the merits cannot be said to be foreign to the enquiry which the appropriate Government is entitled to make in dealing with a dispute u/s 10(1)".

The aforesaid decisions of the Supreme Court were considered subsequently by the Supreme Court in Prem Kakar v. State of Haryana 1976 49 FJR 51 (SC) and by this Court in Workmen of State Bank of India, New Delhi v. Government of India 1968 L.I.C. 1339. Subsequently, the matter was again considered by the Supreme Court and the observations of the Supreme Court as reproduced above in Bombay Union of Journalist''s case 1964 65 26 FJR 32 (SC ), were explained in M.P. Irrigation Karamchari Sangh Vs. State of M.P. and Another, holding as under:

"While conceding a very limited jurisdiction to the State Government to examine patent frivolousness of the demands, it is to be understood as a rule, that adjudication of demands made by workmen should be left to the Tribunal to decide. Section 10 permits the appropriate Government to determine whether dispute ''exists or is apprehended'' and then refer it for adjudication on merits. The demarcated functions are (1) reference; (2) adjudication. When a reference is rejected on the spacious plea that the Government cannot bear the additional burden, it constitutes adjudication and thereby usurpation of the power of a quasi-judicial Tribunal by an administrative authority, namely, the appropriate Government. 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. 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 Section 10 and Section 12(5) of the Industrial Disputes Act nugatory".

In Ram Avtar Sharma and Others Vs. State of Haryana and Another, while explaining the observations of the Supreme Court made in 1964, as reproduced above, observed as under:

"If the Government performs an administrative act while either making or refusing to make a reference u/s 10(1), it cannot delve into the merits of the dispute and take upon itself the determination of lis. That would certainly be in excess of the power conferred by Section 10. Section 10 requires the appropriate Government to be satisfied that an industrial dispute exists or is apprehended. This may permit the appropriate Government to determine prima facie whether an industrial dispute exists or the claim is frivolous or bogus or put forth for extraneous and irrelevant reasons not for justice or industrial peace and harmony. Every administrative determination must be based on grounds relevant and germane to the exercise of power. If the administrative determination is based on grounds irrelevant, extraneous or not germane to the exercise of power, it is liable to be questioned in exercise of the power of judicial review. Therefore, the court may not issue a writ of mandamus, directing the Government to make a reference but the court can after examining the reasons given by the appropriate Government for refusing to make a reference come to a conclusion that they are irrelevant, extraneous or not germane to the determination and then can direct the Government to reconsider the matter". In M.P. Irrigation Karamchari Sangh Vs. State of M.P. and Another, ; the State Government had passed the order declining to refer under the Industrial Disputes Act as under:

"the action of the management in imposing on the workman penalty of removal from service on the basis of an enquiry and in accordance with the procedure laid down in the Rules was neither mala fide nor unjustified, and therefore, it did not consider it necessary to refer the dispute to the Industrial Tribunal for adjudication".

It was held that the action of the Government was on extraneous and irrelevant grounds not germane to the administration, and therefore, writ of mandamus could be issued calling upon the Government to reconsider its decision. In Workmen of Syndicate Bank, Madras Vs. Government of India and Another, the Government of India refused to make the reference on the ground that the charges of misconduct against the worker were proved during a duly constituted departmental inquiry and that penalty was imposed on the worker after following the required procedure. It was observed at page 160 "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 workers'' claim for adjudication. Such a situation cannot be countenanced by law". The aforesaid latter decision of the Supreme Court was noticed by a Division Bench of this Court in Workmen of Syndicate Bank, Madras Vs. Government of India and Another, and it was observed as under (at page 269):

"The matter before the Government in an application u/s 12 or 10 of the Act is whether there exists an industrial dispute which may be referred to the Labour Court. The decision of the Government on the merits has to be in this regard and not on the merits of the rights of the workmen or the validity of the order passed against him by the management".

Similar view was taken by the Madras High Court in Leprosy Relief Rural Centre Workers'' Trade Union v. Leprosy Relief Rural Centre, and by the Orissa High Court in Gandharba Bhoi v. Steel Authority of India Ltd. Rourkela Steel Plant 610.

From the perusal of the judgments referred to above and the ratio of the latter decisions of the Supreme Court, it is quite clear that it was required of the State Government to consider under Sections 10 and 12(5) of the Industrial Disputes Act as to whether there existed any dispute or difference between the worker and the management and not to decide on merits that after holding regular inquiry the worker was found guilty and that punishment imposed was justified. These matters were required to be raised and adjudicated upon before the Labour Court/Industrial Tribunal and not for the State Government to adjudicate at the stage of making reference. As held by the Supreme Court if on these circumstances the order declining the reference is made, the same would be based on extraneous reasons. The contents of the order passed by respondent No. 1, annexure P-12 as reproduced above, leaves no manner of doubt that respondent No. 1, State of Haryana, has gone into the merits of the controversy between the worker and the management on the question of fairness of the inquiry or fairness of the punishment imposed which are extraneous reasons for deciding the matter u/s 12(5) of the Industrial Disputes Act. As defined u/s 2(k) of the Industrial Disputes Act, dismissal of a workman per se is an industrial dispute.

For the reasons recorded above, this writ petition is allowed. Annexures P-12, P-13 and P-15 passed by the State Government of Haryana, respondent No. 1 are quashed with the direction to respondent No. 1 to reconsider the matter in the light of the observations made above for making a reference to the Labour Court as required u/s 12(5) of the Industrial Disputes Act. This may be done within a period of three months. The petitioner will get costs which arc quantified at Rs. 1,000.