Manohar Singh Neech v. Union Of India — 1986 DIGILAW 244 (PAT)

Judgment U. P. Singh, J. 1. An important point regarding the powers of the appropriate government under Sections 10 and 12 of the Industrial Disputes Act (in short, the act) after the incorporation of Sec.11-A of the Act by Amendment Act 45 of 1971 with effect from 15-12-1971 arises for consideration in this writ application. 2. The petitioner was a workman under the 3rd respondent, M/s Indian aluminium Company Ltd. He has challenged the correctness of the order issued by the State Government (Annexure-7) refusing to refer the industrial dispute relating to the termination of his service on the ground that he was dismissed from service after proper departmental enquiry. The impugned order of the Government reads as follow : "in continuation of this Ministry letter of even number dated the 17th october, 1979, on the subject mentioned above, I am directed to say that it is not proposed to refer the dispute to adjudication as Shri manohar Singh Neech has been dismissed from service after proper departmental enquiry" 3. The petitioner was employed by the 3rd respondent in the year 1967 as a mechanic. In November, 1979, the petitioner was charge-sheeted with the following charges for violation of the Certified Standing Orders of the Company and placed under suspension from 6th February, 1979 :- "1.23-B (g)-Intoxication or riotous behaviour during working hours in the premises of the company or any act subversive of discipline.2.24-B (j)-Causing or threatening to cause physical injury to others. " 4. It was alleged that the petitioner had injured one Mahabir Ram Verma, the Joint Secretary of the Boxite Workers Union with a dagger and also caused injuries to one Ashok Kumar Das who intervened in the matter. The petitioner submitted his explanation to the charges stating that out of ill-will and vengeance, the said Joint Secretary of the Union instigated some workers against him, he was surrounded by them and was also assaulted while he was on duty. This was due to old enmity. He, thus, refused the allegation and denied the charges levelled against him. The domestic enquiry was set up to enquire into the allegations and after conclusion of the said domestic enquiry, the petitioner was dismissed from service with effect from 28th April, 1979. The petitioner put forth a demand before the Management stating that the order of dismissal was illegal, mala fide, improper and unjustified. The domestic enquiry was set up to enquire into the allegations and after conclusion of the said domestic enquiry, the petitioner was dismissed from service with effect from 28th April, 1979. The petitioner put forth a demand before the Management stating that the order of dismissal was illegal, mala fide, improper and unjustified. He was punished as a. measure of victimisation following unfair labour practice and, consequently, he demanded his re-instatement with back wages. Having received no reply the petitioner made an application to the assistant Labour Commissioner (Central), Hazaribagh, who was the Conciliation officer and requested him to intervene in the matter. The conciliation proceeding was held but ended in failure. The failure report was submitted to the secretary, government of India, Ministry of Labour, and it was acknowledged, Respondent no.1 informed the petitioner that it was not proposed to refer the dispute to adjudication as he had been dismissed from service after proper departmental enquiry. The impugned order is contained in Annexure-7. 5. Mr. S. B. Sinha for the petitioner contended that under Sec.12 (5)of the Industrial Disputes Act, the State Government was bound to give reasons in refusing to refer the dispute to the Industrial Tribunal for adjudication. It was submitted that on the face of the order the only reason given by the State government for refusing to refer the dispute for adjudication to the Labour court is that the petitioner had been dismissed from service after proper departmental enquiry. It was urged, that after incorporation of Sec.11-A of the Act by Amendment Act 45 of 1971, which came into force on 15-12-1971, the State government, while exercising its power under Sec.10 of the Act, must necessarily consider whether the punishment imposed upon the workman was excessive or proportionate to the gravity of the misconduct proved against him and in absence of application of its mind on this aspect of the case, the impugned order refusing to refer the industrial dispute is bad in law. In other words, the contention was that the State Government ought to have applied its mind to the question of punishment and considered whether from the point of view of the punishment there was any necessity to refer the dispute to the Labour Court. 6. In other words, the contention was that the State Government ought to have applied its mind to the question of punishment and considered whether from the point of view of the punishment there was any necessity to refer the dispute to the Labour Court. 6. Section 12 (5) of the Act reads as follows :- "if on a consideration of the report referred to in sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Board, Labour Court, Tribunal or 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. " The scope of Sec.12 (5) of the Act has been considered by the Supreme Court in the case of State of Bombay V/s. Krishan, 1960-II LLJ 592 at 602, where Gajen-dragadkar, J. observed as follows :- "the order passed by the Government under Sec.12 (5) may be an administrative order and the reasons recorded by it may not be justiciable 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. " From this decision it will be clear that before passing an order under Section 12 (5) of the Act, the State Government should consider the question fairly and reasonably and take into account all relevant facts and circumstances. Secondly, government in refusing to make a reference should not take into account extraneous matters which are not germane to the issue in hand. Further, if it is clear that the Government had not applied its mind to all the relevant facts and circumstances before passing an order refusing to refer a dispute for adjudication or the State Government had not given any reason at all as enjoined under section 12 (5) of the Act, the Court will have the power to interfere with the order of the Government. 7. 7. Section 11-A of the Act reads as follows : - "where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National tribunal for adjudication and in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may by its award, set aside the order of discharge or dismissal and direct re-instatement of the workman on such terms and conditions, if any, as it thinks fit, give such other relief to the workman including the award of any lesser punishhent in lieu of discharge or dismissal as the circumstances of the case may require : provided that in any proceeding under this section the Labour Court, tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter. " 8. Admittedly, the impugned order was made after Sec.11-A of the act came into force. This section has been interpreted by Vaidialingam, J. , in the case of Workmen of Firestone Tyre and Rubber Company V/s. The Management, 1973 i LLJ 278. In paragraph 47, it was thus stated : "the Legislature in Sec.11-A has made a departure in certain respect in the law as laid down by this Court. For the first time, power has been given to a Tribunal to satisfy itself whether the misconduct is proved. This is particularly so, as already pointed out by us, regarding even finding arrived at by an employer in an enquiry properly held. The Tribunal has also been given power, also for the first time to interfere with the punishment imposed by an employer. This decision is clear authority on the point that by virtue of the power conferred on it under Sec.11-A, the Labour Court or the tribunal has got the jurisdiction to go into the question whether the proved misconduct merited punishment by way of discharge of dismissal. If it finds that the proved misconduct did not deserve such a serious punishment as one of discharge or dismissal, it can award to the workman any lesser punishment instead. If it finds that the proved misconduct did not deserve such a serious punishment as one of discharge or dismissal, it can award to the workman any lesser punishment instead. Sec.11-A as observed by Vaidialingam, J. , confers on the Labour Court or the Industrial tribunal the power to interfere with the punishment and alter the same. This Section has the effect of altering the law by abridging the rights of the employer inasmuch as it gives power to differ both on a finding of misconduct arrived at by an employer as well as the punishment imposed by him. " 9. The change in law had been effected to cover these specific cases of individual discharge and dismissal and that is why the State Government would have now to keep in mind this enlarged scope of the industrial adjudication in the matters of discharge or dismissal even of an individual workman while making the reference because the original fetters have now been lifted on the Tribunals, jurisdiction. The Madras High Court in K. Ramaswamy V/s. Government of Tamil nadu and another, 1979 (2) LLJ 304, a Division Bench of Gujarat High Court in woolen Mill Kamgar Sangh, Jamnagar V/s. State of Gujarat and another, 1977 II llj 353 and Kerala High Court in the case of Workmen of Cochin Chamber of commerce V/s. State of Kerala, 1976 11 LLJ 108 have taken the view that alter section 11-A of the Act came into force, the Government while exercising its power under Sec.10 of the Act should apply its mind to the quantum of punishment imposed on the workmen and satisfy itself about its severity or otherwise. The question raised has further been considered by the Karnataka High court in Raghavendra Rao M. S. V/s. State of Karnataka and others, 1980 III SLR 752 wherein the aforesaid decisions have been referred to and it has been held :- "it appears to be reasonable on a proper construction of Sec.12 (4)and Sec.12 (5) of the Act, that the relief of lesser or lighter punishment given to the workman under Sec.11-A of the Act could not be taken away by an administrative act of the Government when it exercises its power of refusing to make a reference unless it was satisfied that the punishment was just and proper and not excessive. It will be repugnant to notions of social justice and indeed preposterious to take the view, in the absence of definite words to the contrary in Sections 12 (4) and 12 (5) of the Act, that the workman whose right to approach the Labour Court directly for an adjudication of his dispute is circumscribed and delayed by the procedural constraints of those sections and whose right to approach the Civil court is seriously curtailed by the truncated reliefs available to him in that Court, should be deprived of the benefit of adjudication by the Labour Court without an examination by the Government of the severity of the punishment sufferred by him when the object of the act among other things is avowedly the protection of the workman against arbitrary action and preservation of industrial peace. It is trite law that the Government cannot decline to make the reference on grounds which are wholly extraneous or irrelevant to the matter in dispute. On the same analogy, after Sec.11-A came on the statute book, the Government cannot decline to make the reference without examining the gravity of punishment imposed on the workman. " 10. The Contention of Mr. B. C. Ghosh, learned counsel for Respondent no.3, the Management, is that the provisions of Sec.11-A are not attracted at the time of Government exercising its power under Sec.10 (1) of the Act and, therefore, the Government is not bound to consider the gravity or orherwise of the punishment imposed. In view of the legal position discussed above the contention of Mr. Ghosh must fail. 11. It was next contended by Mr. Ghosh that from the conciliation report it appears that all the relevant documents were before the Central government. Annexure 6 is the acknowledgement of all the documents sent under the failure report and, therefore, it must be held that the Government has applied its mind to the gravity of punishment imposed on the workman and, therefore, the requirement of Sec.11-A of the Act had been satisfied by the Government while refusing to make reference. No report has been filed by the Govenment. 12. In view of the legal postition discussed above, one of the relevant factors which the Government should have borne in mind before refusing to refer the dispute for adjudication is whether the proved misconduct had, merited the punishment of discharge or dismissal. No report has been filed by the Govenment. 12. In view of the legal postition discussed above, one of the relevant factors which the Government should have borne in mind before refusing to refer the dispute for adjudication is whether the proved misconduct had, merited the punishment of discharge or dismissal. In this case, the impugned order does not show that this aspect was taken into consideration before passing the impugned order. It has been held by the Supreme Court and other high Courts that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape oi affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time, it comes to court on account of a challenge got validated, by additional grounds later broght out. In the case of Commissioner of Police V/s. Gordhandas, AIR 1952 S. C.16), bose, J. speaking for the Court stated : "public Orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officers making the order of what he meant, or what was in his mind or what he intended to do. Public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whome they are addressed and must be construed objectively with reference to the language used in the order itself. " In the case of Mohinder Singh Gill and another V/s. The Election commissioner and others, (1978-I S. C. C.405) Krishna Iyer, J. observed as follows : "the second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out". Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out". In a Bench decision of Kerala High Court in the case of Workman, J and p. Coats V/s. State of Kerala (1977-II, L. L. J, 534), Balakrishna Erady, J speaking for the Court observed : "under Sec.12 (5) of the Act, whenever the appropriate Government takes a decision not to refer a dispute for adjudication there is mandatory duty cast on it to record its reasons in support of the said conclusion and to communicate such reasons to the parties concerned. It is, therefore, obligatory on the part of the Government to set out in the communication issued to the parties, clearly and precisely the grounds on which the request for reference was being declared. The Government connot, therefore, be heard to say that in addition to the reasons mentioned by them in the order certain other relevant facts or grounds not disclosed in the order had also weighed with them in reaching the conclusion that no reference need be made. " 13. On analysis of the decisions above referred to it is clear that the government have not based its decision on consideration of relevant facts and circumstances. The Government failed to consider the relevant aspect whether proved misconduct in the instant case merited a punishment of dismissal. When once this Court is satisfied that the Governmet have not applied its mind to the provisions contained in Sec.11-A of the Act, it will be open to this Court to quash the order of the State Government. 14. For these reasons this petition is allowed and the impugned order contained in Annexure 7 is qu shed and writ in the nature of mandamus snail be issued to the Government to consider afresh the question of making the reference of the dispute to the Labour Court for adjudication in accordance with law and in the light of the observations indicated above. The parties shall bear their own costs. Petition allowed.