Shiv Dayal vs State of Haryana and Another

G.S. Singhvi, J

This judgment will dispose of the two writ petitions, i,e,. C.W.P. No. 1734] of 1994 and C.W.P.No. 18268 of 1994, as the question of law required to be determined in both the petitions is identical. In both these petitions, a challenge has been made to the orders passed by the Government of Haryana refusing to make reference of the dispute raised by the petitioners in relation to the termination of their services.

In brief, facts of C.W.P.No. 17341 of 1994 are that the Petitioner-workman was appointed as a dryer operator in the service of respondent No. 2, on August 14, 1986, on monthly salary of Rs. 500/- His salary was increased from time to time and he was getting Rs. 2,200 per month on the date of termination of his service. A domestic enquiry was held by the management of respondent No. 2 in regard to the allegations of misconduct levelled against the petitioner. The enquiry officer found him guilty. Thereafter, the management of respondent No. 2 issued a show-cause notice to the petitioner and, finally, terminated his service on August 11, 1993, The petitioner submitted a notice of demand dated October 12, 1993. Conciliation proceedings were held by the Assistant Labour Commissioner, Karnal. He submitted a report u/s 12(4) of the Industrial Disputes Act, 1947, indicating that there was no-possibility of compromise. Thereafter, the Government issued order, annexure P-4, and refused to make reference of the dispute on the ground that the petitioner had settled accounts with the management.

The petitioner has challenged this order of the Government on the ground that after receipt of the failure report, the Government had no jurisdiction to enter into the merits of the case and it was duty-bound to make reference of the dispute. The petitioner has pleaded that he was removed from service as a measure of victimisation.

In. C.W.P.No. 18268 of 1994, the petitioner has pleaded that he was appointed as a dryer operator in the service of respondent No. 2 with effect from September 18, 1989. Initially, he was paid Rs. 850 per month. Later on, this amount was increased to Rs. 1,700 per month. His service was terminated on the basis of a domestic enquiry. He challenged the termination of his service. The Assistant Labour Commissioner submitted his failure report u/s 12(4) and thereafter the Government has passed the impugned order, annexure P-4, refusing to make a reference.

Though learned counsel for respondent No. 2 has sought time to file a reply, after having perused the original record which has been produced before us by learned counsel for the State of Haryana, we are satisfied that no useful purpose would be served by adjourning the case for the reply of respondent No. 2 because primarily we have to see as to whether the reasons recorded by the Government for refusing to make a reference are legally sound.

The only contention advanced by learned counsel for the petitioners is that the Government has refused to make a reference of the disputes raised by the petitioners on a wholly extraneous ground, namely, that the workmen had settled the accounts. Learned counsel argued that the Government has not at all applied its mind to the relevant facts and has completely overlooked the settled principles of law which govern the exercise of power u/s 10(1)(c) of the Industrial Disputes Act, 1947. Learned counsel for the respondents argued that the Government did have the jurisdiction to refuse to make a reference and that in each and every case, the Government is not bound to make a reference. Learned counsel appearing for the State further argued that where the Government finds that the dispute is frivolous or vexatious, it can decline to make a reference.

Learned counsel for the State has produced before us two files containing the demand notice as well as the confidential reports submitted by the Assistant Labour Commissioner, Karnal, u/s 12(4) of the Act. A perusal of the reports submitted by the Assistant Labour Commissioner shows that while the petitioners pleaded that they had been removed from services on the basis of false allegations and no compensation had been paid to them, the employer pleaded that the workmen had been removed after a proper domestic enquiry. The Assistant Labour Commissioner observed that the issue as to whether the domestic enquiry was correct or not, can be decided only by the Labour Court, and, therefore, the dispute be referred to the Labour Court for adjudication. On receipt of the report, the Deputy Labour Commissioner, Sonepat, recorded that he does not agree with the report of the conciliation officer because the management had removed the workmen on the basis of serious allegations of misconduct which were found proved. Thereafter, the employer had sent a cheque dated August 11, 1993, towards payment of dues to the petitioners and the same was accepted by the workmen. The Deputy Labour Commissioner opined that in view of the acceptance of the amount by the workmen, it was not proper to make a reference. A perusal of the files further shows that after receipt of the comments of the Assistant Labour Commissioner and the Deputy Labour Commissioner, the Joint Labour Commissioner recorded a note that the reference be rejected. On this noting, the Joint Secretary, Haryana Government, Labour Department, simply appended his signatures. These files do not at all disclose application of mind either by the Joint Labour Com-missioner or by the Joint Secretary to the Government. Neither of these authorities has thought it proper to look into the demand notice submitted by the workmen, replies filed by the employer and the reports of the conciliation officer.

After having perused these files we are fully convinced that the manner in which respondent No. 1 has decided the matter leaves much to be desired. There is a total non-application of mind by the competent authority to the facts of the cases as well as the provisions of law. The mere fact that the workmen accepted the amount sent by the employer after their dismissal from service could hardly debar them from raising a dispute against the termination of their services. They cannot be deemed to have waived their right to raise the dispute. In matter, involving discharge or dismissal of the workmen on the allegations of misconduct, wide powers have been conferred on the adjudicating bodies by virtue of Section 11-A of the Act. Even in those cases where a proper domestic enquiry is held by the employer before punishing the employee, the Labour Court/Industrial Tribunal can interfere with the quantum of punishment. In C. W. P. No. 7827 of 1994 (Annapurna Agarwal v. State of Haryana), decided on September 8, 1994, a Division Bench of this court has dealt with the issue at length and has held as under:

"From the above quoted decisions of the Supreme Court and the various High Courts, the position which emerges regarding the scope of the power of the Government when it exercises the same u/s 10(1) read with Section 12(5) of the Act is that the function of the appropriate Government under the aforesaid provisions is an administrative function and not a judicial or quasi-judicial function and in performing this administrative function the Government cannot delve deep into the merits of the dispute and cannot make an adjudication of the dispute. It cannot usurp the jurisdiction of the Labour Court/Industrial Tribunal to make an adjudication of the dispute. What the Government can do while considering the question of making a reference u/s 10(1) is to form an opinion as to whether an industrial dispute exists or is apprehended. While forming this opinion, the Government can decline to make a reference where the dispute raised is frivolous or vexatious, but it cannot take upon itself the task of making an adjudication of the dispute. The Government cannot decline to make a reference on extraneous or irrelevant considerations. In the case of termination of service of a workman, the dispute cannot be declined to be referred on the ground that a proper enquiry has been made by the employer or that the punishment awarded to the workman is just and fair. Likewise, the Government cannot refuse to make a reference on the ground that the action of the employer does not suffer from lack of bona fides or that the workman has been found guilty of grave misconduct. The Government cannot refuse to make a reference merely because the employer has come out with the plea that relations between the employer and the employee are strained. The Government shall in each case apply its mind to the facts to determine as to whether disputed questions are involved requiring adjudication because adjudication of disputed questions are matters which fall within the realm of the adjudication."

As far as these petitions are concerned, the refusal of Government to make a reference of the disputes is based on wholly irrelevant consideration, namely, that the workmen have settled the accounts. In fact, mere acceptance of cheque by the workmen cannot be equated with a case where the parties negotiate some matter and then enter into some compromise. The workmen had hardly any choice in accepting the cheques. There is no material on record to show that after termination of their services as a measure of punishment the employer had called upon the petitioners to negotiate the matter and, thereafter, the petitioners had accepted the amount sent by the employer. Therefore, the act of the workmen to accept the cheques could not be made a ground for refusing to make a reference.

In the result, both the writ petitions are allowed. Orders passed by the Government refusing to make a reference of the disputes raised by the petitioners are quashed. The Government is directed to consider the matter and pass fresh orders within two months in the light of the principles laid down in CWP No. 7827 of 1994 (Annapurna Agarwal v. State of Haryana), decided on September 8, 1994. Costs made easy.