Om Prakash Gupta v. Union Of India — 1976 DIGILAW 704 (ALL)

JUDGMENT K.N. SINGH, J. 1. THIS petition is directed against the order of the Central Government dated December 4, 1973 holding that the petitioner's dispute was not fit for reference to adjudication to Industrial Tribunal. Brief the facts are that the petitioner joined service as Accounts -cum-cash clerk in the Bank of Baroda at its Bindki branch in district Fatehpur. The appointment letter dated October 27, 1972 indicated that the petitioner's appointment was on probation for a period of six months which was liable to be extended by the Bank at its discretion. It further contained a condition that it on the expiry of the period of probation the petitioner's work and conduct was found satisfactory, he would be confirmed, but if his work was not found satisfactory his services would be terminated by giving him one month's notice or one month's pay in lieu of notice. On March 3, 1973 the petitioner was served with an order dated April 30, 1973 terminating his service on the ground that his work during the probationary period was not found satisfactory. The Union of the employees of the aforesaid Bank of Baroda espoused the petitioner's cause and raised industrial dispute. The Assistant Labour Commissioner carried on conciliation proceedings, but if failed as no settlement could be arrived at between the parties. 2. THEREAFTER the Assistant Labour Commissioner submitted his report to the secretary Government of India, Ministry of Labour and Rehabilitation (Department of Labour and Employment) Shram Shakti Bhawan, New Delhi, giving information about the failure of the conciliation proceedings. The Union of the employees of the Bank made representation to the Central Government for referring the dispute to adjudication. The Central Government but its order dated December 4, 1973 refused to refer the dispute to adjudication as in its opinion there was no prima facie case. The employees union made another representation for reconsidering the matter. The Central Government rejected the application by its order dated February 15, 1974. Aggrieved the petitioner has preferred the present petitioner for the issue of a writ of certiorari for quashing the impugned orders dated December 4, 1973 and February 15, 1974 and a writ of mandamus directing the Central Government to refer the dispute to adjudication. The Central Government rejected the application by its order dated February 15, 1974. Aggrieved the petitioner has preferred the present petitioner for the issue of a writ of certiorari for quashing the impugned orders dated December 4, 1973 and February 15, 1974 and a writ of mandamus directing the Central Government to refer the dispute to adjudication. Sri G.C. Dwivedi, learned counsel for the petitioner urged that instead of referring the dispute to Industrial Tribunal for adjudication, the Government has itself usurped the jurisdiction of the Industrial Tribunal and decided the dispute on merits. It is necessary to quote the relevant portion of the order of the Central Government. It reads thus: "I am directed to say that Sri Gupta's work during probationary period was not found satisfactory by the management. Moreover, the termination of his services by the management is in accordance with his terms of appointment. In the circumstances, the action of the management does not appear to bona fide. The Central Government, therefore, do not consider the dispute prima facie fit for reference to adjudication." 3. THE above order was passed under Section 12(5) of the Industrial Disputes Act, 1947, giving reasons as to why the case was not fit for reference to adjudication. Under the Scheme of the Act whenever a dispute is raised by a workman or union, it is considered by the Conciliation Board under Section 12 of the Act. It no settlement is arrived at and the conciliation proceedings fail, the Board or the Conciliation Officer is required to submit report to the appropriate Government under Section 12(4). The appropriate Government is thereupon required to satisfy itself if a case for reference to adjudication is made out. If it is satisfied that such a case is made out, it may in exercise of its power under Section 10 refer the dispute to the appropriate Industrial Tribunal, Labour Court or National Tribunal. But in a case where the appropriate Government is satisfied that a case for reference is not made out, it may refuse to make such reference, in that event it is obligatory to record reasons and communicate the same to the parties concerned. No party is entitled to get the dispute referred to Industrial Tribunal for adjudication as of right. But in a case where the appropriate Government is satisfied that a case for reference is not made out, it may refuse to make such reference, in that event it is obligatory to record reasons and communicate the same to the parties concerned. No party is entitled to get the dispute referred to Industrial Tribunal for adjudication as of right. The appropriate Government is entitled to consider the matter and satisfy itself as to whether a prima facie case is made out for reference to adjudication. In coming to that conclusion the Government may consider the questions raised by the parties. Since sub-section (5) of Section 12 requires the Government to record reasons, the Government is under a mandatory duty to consider the matter objectively and to indicate its reasons for the conclusion that the case is not fit for adjudication. In that process the Government is bound to consider the questions raised by the parties and to record reasons. In the instant case the Central Government recorded reasons as noted above. These reasons indicate that the Central Government was satisfied that the petitioner's services were terminated by the management in accordance with the terms of his engagement and that the action of the management did not appear mala fide and the dispute was not fit for reference to adjudication. The Central Government did not decide the dispute on merits, instead it recorded the reasons in refusing to refer the dispute to adjudication which was perfectly within its jurisdiction. The Central Government did not usurp the jurisdiction of industrial courts nor it exceeded its jurisdiction. In Bombay Union of Journalists v. State of Bombay 1964(8) F.L.R. 236= (1950-67) 4 S.C.L.J. 2291=A.I.R. 1364 S.C. 1617., almost a similar situation prevailed. In that case also the Central Government had refused to refer a dispute to adjudication after recording reasons that the termination of the services of the workmen by the employers was only an act of retrenchment and the employers were willing to pay legal dues to them, the management did not act mala fide or vindictively or for victimization of trade union activities. The order of the Central Government was challenged on the ground that the Central Government has usurped the function of the Industrial Tribunal in according findings on the merits of the dispute. 4. The order of the Central Government was challenged on the ground that the Central Government has usurped the function of the Industrial Tribunal in according findings on the merits of the dispute. 4. THE Supreme Court repelled the challenge and held that the appropriate Government is not precluded from, considering the prima facie merits of the dispute while considering the question as to whether the dispute is prima facie fit for reference and whether it should exercise its powers. If the claim made is patently frivolous, or is clearly belated, the appropriate Government may refuse to make a reference. The principles laid down by the Supreme Court leave no room for any doubt that the appropriate Government has jurisdiction to consider the prima facie merits of the dispute while exercising its power under Section 10(1) or 12(5) of the Act. No doubt Supreme Court further observed that the Government should not reach a final decision on the question of law and the disputed questions of fact because that would normally lie with the jurisdiction of the Industrial Tribunal. In the instant case the Central Government has not expressed any final opinion on any question of law or on dispute question of fact, as there was none. In the circumstances we find no legal infirmity in the impugned order of the Central Government. Learned counsel for the petitioner referred to the allegation made in the petition and the representation made by the employees union before the Central Government and attempted to demonstrate that the question raised by the Union involved question of law and disputed question of fact. On a careful scrutiny of the same we are unable to accept the contention. It is urged that since the petitioner was on a probation his service could not be terminated without giving him show-cause notice. We find the argument untenable. Under the terms of contract of service the petitioner's service were liable to be terminated during the period of probation by giving him one month's notice or one month's salary in lieu thereof. The management terminated the petitioner's service by offering the month's salary to him, there was no necessity to give notice to him. We find the argument untenable. Under the terms of contract of service the petitioner's service were liable to be terminated during the period of probation by giving him one month's notice or one month's salary in lieu thereof. The management terminated the petitioner's service by offering the month's salary to him, there was no necessity to give notice to him. It was then urged that the petitioner's service were terminated by the Agent of the Bindki Branch of the Bank whereas he had been appointed by the Regional Manager, as such his service were terminated by an unauthorised person. In the counter affidavit filed on behalf of the management of the respondent Bank, it is asserted that the order of termination was made by the Regional Manager and not by the Agent, he had merely communicated the order to the petitioner. In our opinion none of the questions raised by the petitioner involved questions of law or disputed facts requiring consideration by the Industrial Tribunal. In the result we do not find any legal infirmity in the impugned orders of the Central Government. In the petition fails and is accordingly dismissed. Since no one appeared on behalf of the respondents, the parties shall bear their own costs.