SUKHBIR SINGH v. UNION OF INDIA — 1994 DIGILAW 126 (DEL)

ANIL DEV SINGH, J. ( 1 ). In this writ petition under Article 226 of the Constitution of India, the petitioner challenges the order of the Central Government refusing to refer the Industrial Dispute raised by the petitioner to the Industrial Tribunal. ( 2 ). The lads giving rise to this writ petition are us follows: ( 3 ). On August 14,1970 the Syndicate Bank (for short bank ), appointed the petitioner as a temporary attender for a period of two months on a salary ofrs. 92. 00 with a special allowance of R. S. 7. 00 and House Rent Allowance of Rs. 11. 00 per month. Pursuant to the order of appointment, the petitioner joined the service of the bank. By a written communication dated January 22, 1971 the Custodian of the bank in supersession of the earlier letter of appointment dated August 14, 1970 informed the petitioner that he had been appointed as a probalionary attender to work at Delhi - Mayapuri Branch ofthe bank from August 17,1970 on a salary of Rs. ll6. 00. special allowance of RS. 10. 00. HRA of Rs. 14. 00 and city compensatory allowance of Rs. 15 per month. According to the said communication the appointment of the petitioner in the first instance was on probation for a period of six months, which could be extended and on the expiration of the period of six months or the extended period, as the case may be. the petitioner could be confirmed if his work and conduct were found to be satisfactory. The petitioner was further informed that during the period of probation his services could be terminated by giving him one month s notice or salary in lieu thereof. On February 16,1971 the probation of the petitioner was extended for a further period of three months. The memorandum extending the period of probation slated that during this period, the work and conduct of the petitioner will be watched. On May 12. 1971 the period of probation of the petitioner was again extended for a further period of I I days as he had availed of 11 days extraordinary leave from April 19. 1971 to April 29. 1971. The extended period of probation came to an end on May 27,1971. Since the probation of the petitioner was not extended nor was he confirmed, his services stood terminated with effect from May 27,1971. 1971 to April 29. 1971. The extended period of probation came to an end on May 27,1971. Since the probation of the petitioner was not extended nor was he confirmed, his services stood terminated with effect from May 27,1971. Again on January 25,1972 the bank once more appointed the petitioner as a probationary attender at its Delhi-Shahdara Branch. But the appointment of the petitioner did not last for long as his services were terminated by the bank on November 10. 1972. It is alleged by the petitioner . hat a day prior to the said termination order viz November 9, 1972. his wife sustained burn injuries and on receipt of this information, he REFERRED TO for leave from November 10,1972 which was not granted and instead his services were terminated by the Bank, the fourth respondent. Thereafter, the petitioner on February 9,1973 filed a representation to the Custodian of the Bank against the order of his termination on the ground that the same was unfair, arbitrary and illegal. The petitioner, however, did not receive any reply thereto. ( 4 ). On April 25. 1973 the petitioner filed a statement of claim before the Assistant Labour Commissioner in which it was urged that he was entitled to reinstatement with full back wages and continuity of service. In reply the fourth respondent alleged that the performance of the petitioner during the probationary period was not satisfactory: that he was not found suitable to he absorbed in the permanent service of the bank: that the petitioner was also involvcd in a case of gambling for which a FIR was lodged against him on December 27. 1971: that in conncction will] the alleged offence of gambling the petitioner was arrested and then let off on bail and that in view of these facts the services of the petitioner were It terminate on November 10. 1972 i. e before the expiry of the "period of probation. By a communication dated 12th/13th June,1973 the Assistant Labour Commissioner (Central) cum Conciliation Officer under Section 12 (4) of the Industrial Dispites Act,1947 (for short the Act) reported to the Central Government that the dispute could not be resolved and the conciliation proceedings did not fructify in any agreement between the parties. By a communication dated 12th/13th June,1973 the Assistant Labour Commissioner (Central) cum Conciliation Officer under Section 12 (4) of the Industrial Dispites Act,1947 (for short the Act) reported to the Central Government that the dispute could not be resolved and the conciliation proceedings did not fructify in any agreement between the parties. It was also pointed out that the suggestions were made to the partics for reference of the dispute for adjudication under the Code of Discipline or under the Industrial Disputes Act. 1947 or for join) reference of the dispute to adjudication". but the fourth respondent was not agreeable. The report of the Assislant Labour Commissioner (Central) was received by the Government of India on June 13,1972. The petitioner also by means of a written request asked the Central Government to refer the dispule to the Industrial Tribunal for adjudication. On July 26. 19 73 the Government of India rejected the demand of the petitioner for reference of The dispule to the Industrial Tribunal on the ground that the respondent was justified in terminating his services during the probationary period in terms of conditions of his appointment. Aggrieved by the decision of the Central Government, the petitioner filed another representation claiming reference of the dispute to the Industrial Tribunal for adjudication. This representation of the petitioner was also rejected by the Central Government on August 28,1973. Undaunted by the failure, the petitioner again filed a representation on November 28,1973. On January 2. 1974 he was informed by the Central Government that his representation was under active consideration. However, on March 5, 1974 the Central Government intimated the petitioner that there was no justification to revise the decision already conveyed to him. ( 5 ). Learned counsel appearing for the petitioner submits that the Central Government was not justified in refusing to make a reference of the dispute to the Industrial Tribunal. He submils that according to Section 12 (5) of the Act Appropriate Government was bound to communicate to the parties reasons for not making a reference. He contends that the order dated July 26. 1973 refusing p73to refer the dispute to the Indusirial Tribunal is hardly a speaking order. His further contention is Ilia! the petitioner had also sought the reference on the ground that the action of the fourth respondent was mala fide and the impugned order passed by the Government says nothing about it. He contends that the order dated July 26. 1973 refusing p73to refer the dispute to the Indusirial Tribunal is hardly a speaking order. His further contention is Ilia! the petitioner had also sought the reference on the ground that the action of the fourth respondent was mala fide and the impugned order passed by the Government says nothing about it. This dispute raised by the respondent could only be decided by the Industrial Tribunal, submils the learned counsel. He further canvasses that the Central Government while staling that the termination of the petitioner was justified had decided the dispule on merits which the Central Government was not competent to do under Section 10 or Section 12 (5) of the Act. ( 6 ). Learned counsel for the respondent, on the other hand submits that the order of the first respondent dated July 26,1973 docs not suffer from any illegality whatsoever. According to the learned counsel the Central Government was justified in coming to the conclusion that the services of the petitioner were rightly terminated during his probation. He also contends that the Central Government had given sufficient reasons for the refusal to refer the dispute to the adjudication of the Industrial Tribunal. ( 7 ). I have considered the respective contentions of the learned counsel for the panics. It is well scttled that the Central Government acting under Section 10 or Section 12 (5) of the Act has no power to decide the merits of the controversy. The Conciliation Officer found that there was a dispute between the parties and the attempts to arrive at an agreement between them had failed. In view of this failure he reported the matter to the Central Government. The Central Government refused to make a reference of the dispute to the Industrial Tribunal for adjudicalion on the ground that the fourth respondent was justified in terminating the service of the petitioner, he being on probation. ( 8 ). The question as to whether the services of the petitioner were rightly or wrongly terminated by the fourth respondent isa question which falls within the domain of the Industrial Tribunal being a question which touches the merits of the controversy. ( 9 ). Under Sections 10 and 12 (5) the Appropriate Government can only determine whether dispute exists. It has no power to adjudicate the dispute. ( 9 ). Under Sections 10 and 12 (5) the Appropriate Government can only determine whether dispute exists. It has no power to adjudicate the dispute. The power of adjudication is conferred only on the Industrial Tribunal which is competent to render decision on the merits of the controversy between the parties. The Government cannot delve into the merits of the case and encroach upon the adjudicatory power of lhe Tribunal, while determining the question whether or not the dispute exists for the purpose of making or refusing reference to the Industrial Tribunal. The power to make or refuse reference under the aforesaid provisions does not confer the power to adjudicate. But in exceptional cases on proper examination of the demand of the workman the Government may refuse to make a reference if a stale claim is preferred or if the demand is patently perverse or frivolous. ( 10 ). In the statement of claim of the petitioner dated April 25. 1973 filed before the Conciliation Officer, his various representations and requests for reference of the dispute to the Industrial Tribunal, it was specifically alleged by the petitioner that the termination of his services was made in colourable exercise of power by the respondent and the action was mala fide. The respondent in its comments on the representation of the petitioner filed bcfore the Assit. Labour Commissioner cum Conciliation officer asserted that the action of the respondent in terminating the services was a hona fide one and was taken in the interest of the bank. It was also averred that the petitioner indulged in gambling and in this regard a FIR was lodged against him on December 27. 1971. Besides, it W. T. S asserted that in view of this fact and also having regard to the performance of the petitioner his services were terminated. Considering the respective stands of the parties, it seems to me that a dispute between the parties did exist. which required its adjudication on merits. It was aclear case of the petitioner that his services were terminated when lie REFERRED TO for leave on the ground that his wife had sustained burn injuries and his presence was required beside her. Considering the respective stands of the parties, it seems to me that a dispute between the parties did exist. which required its adjudication on merits. It was aclear case of the petitioner that his services were terminated when lie REFERRED TO for leave on the ground that his wife had sustained burn injuries and his presence was required beside her. The questions raised by the petitioner before the Central Government in connection with his demand for reference of the dispule for adjudication by the Industrial Tribunal namely whether the termination order was unfair, arbitrary and illegal or was actuated by mala fides or was made in colourable exercise of power arc questions of fact which can only be decided by the Industrial Tribunal and the Government cannot decide the merits of the controversy. The impugned order dated July 26,1973 says nothing about the plea of mala fides and the other pleas of the petitioner. This by itself vitiates the order of the Central Government. Moreover, whether the fourth respondent could have considered the alleged incident of gambling. which occurred indecember,1971, for terminating the services of the petitioner when it had re-appointed the petitioner second time on January 25, 1972 despite the said incident, also required consideration. ( 11 ). In The M. P. Irrigation Karamchari Sangh Vs. State of M. P. and another AIR 1985 S. C. 860 the Supreme Court observed that the Government should be very slow to atlempt an examination of the demand on merits wilh a view to decline reference. In this regard, it was observed as follows: "therefore, 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. S. 10 permits 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 specious 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, In our opinion the reasons given by the State Government to decline reference arc beyond the powers of the Government under the relevant sections of the Indusitral Disputes Act. it constitutes adjudication and thereby usurpation of the power of a quasi judicial Tribunal by an administrative authority namely, the Appropriate Government, In our opinion the reasons given by the State Government to decline reference arc beyond the powers of the Government under the relevant sections of the Indusitral Disputes Act. What the Slate Government has done in this case is not a prima facie examination of the merits of the question involved. To say that granting of dearness allowance equal to that of the employees of the Central Government would cost additional financial burden on the Government is to make a unilateral decision without necessary evidence and without giving an opportunity to the workmen to rebut this conclusion. This virtually amounts to a final adjudication of the demand itself. The demand can never be characterised as either perverse or frivolous. The conclusion so arrived at robs the employees of an opportunity to place evidence before the Tribunal and to substantiate the reasonableness of the demand". ( 12 ). The Appropriate Government therefore, is precluded from considering the merils of the dispute while deciding the question whether or not the same is to be referred to the Industrial Tribunal under Section 10 (1) or Section 12 (5) of the Act. when prima facie the demand for reference of the dispule is neither preverse nor frivolous. ( 13 ). There is another aspect of the mailer as well. According to Section 12 (5) of the Act. the Appropriate Government, while rejecting the request for reference of the dispule to the Industrial Tribunal, is obliged to give reasons. In my view, merely staling that the action of the management in terminating the services of the workman during the probationary period in term? of conditions of service was justified, is not a reason enough and falls short of the requirements of Sections 10 and 12 (5) of the Act. ( 14 ). Having regard to the above disscusion, the order of the first respondent dated July 26,1973 refusing reference of the dispute to the Industrial Tribunal and its subsequent orders dated August 28 1973 and March 5, 1974,. which were passed on the representation of the petitioner, are erroneous in law. ( 15 ). The writ petition succeeds and accordingly, the orders dated July 26,1973. August 28, 1973 and March 5, 1974 are hereby quashed. which were passed on the representation of the petitioner, are erroneous in law. ( 15 ). The writ petition succeeds and accordingly, the orders dated July 26,1973. August 28, 1973 and March 5, 1974 are hereby quashed. The Central Government is directed to reconsiter the matter and pass the order afresh under Section 10 of 12 (5) of the Industrial Disputes Act according to law. There will be no order as to costs.