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Madhya Pradesh High Court · body

2001 DIGILAW 789 (MP)

Dadbhai Sharma v. Union of India

2001-11-01

ARUN MISHRA

body2001
ORDER Arun Mishra, J. 1. The question involved in this writ petition is whether the appropriate Government while considering the application filed by the Petitioner for making reference under Section 10(1) of the Industrial Disputes Act, 1947 and Rule 2(9) of the Rules could have entered into the merits of the case while refusing to refer the dispute for adjudication. 2. The factual matrix leading to filing of the application by the Petitioner before the appropriate Government - Respondent No. 1 lies in narrow compass. Petitioner was appointed as Mining Mate on 1-1-1991. The Petitioner claims that he was working on regular basis and not as an apprentice. The fact is disputed by the Respondents. Charge-sheet was issued to the Petitioner on 24-9-1996 regarding an incident dated 27/28 August, 1996. 3. Learned Counsel for the Petitioner submits that the enquiry held was without consideration of the submissions raised by Petitioner and the order of termination passed is stigmatic. 4. The case of Respondent No. 2 as mentioned in the return as that the Petitioner's work during the period of his apprenticeship was not satisfactory hence, he was charge sheeted and was removed in accordance with law as per the standing orders contained in Annexure R/3. Various other grounds are also taken to dispute the claim of the Petitioner. 5. Conciliation failed and thereafter the appropriate Government was approached for making the reference. The Government of India, Ministry of Labour, New Delhi took a decision not to refer the dispute for adjudication for the following reasons: It is reported that the workman was engaged by the management only as an Apprentice and his termination was as per terms and conditions intimated to him at the time of engagement. 6. It is apparent from the order that though the order states that the Petitioner is a "workman", still refused to make a reference on the ground that his termination was as per terms and conditions intimated to him at the time of engagement. This amounts to entering into merits of the matter and deciding it. It is the finding recorded in Annexure P/1. This amounts to entering into merits of the matter and deciding it. It is the finding recorded in Annexure P/1. In Secretary, Indian Tea Association v. Ajit Kumar Barat and others, /SC/0081/2000 : AIR 2000 SC 915 , it was held that the appropriate Government would not be justified in making a reference under Section 10 of the Act without satisfying itself on the facts and circumstances brought to its notice that an industrial Dispute exists or apprehended and if such a reference is made it is desirable wherever possible, for the government to indicate the nature of dispute in the order of reference. The order of the appropriate Government making a reference under Section 10 of the Act is an administrative order and not a judicial or quasi-judicial one and the Court, therefore, cannot canvass the order of the reference closely to see if there was any material before the Government to support its conclusion, as if it was a judicial or quasi judicial order. An order made by the appropriate Government under Section 10 of the Act being an administrative order no lis is involved, as such an order is made on the subjective satisfaction of the Government. If it appears from the reasons given that the appropriate Government took into account any consideration irrelevant or foreign material, the Court may in a given case consider the case for issuing writ of mandamus. It is also settled law that while referring the dispute for adjudication, merits of the matter cannot be decided. 7. In Telco Convoy Drivers Mazdoor Sangh and Anr. v. State of Bihar and others AIR 1989 SC 1565 , the Supreme Court laid down that: 11. It is true that in considering the question of making a reference under Section 10(1), the Government is entitlted to form an opinion as to whether an industrial dispute "exists or is apprehended", as urged by Mr. Shanti Bhusan. The formation of opinion to as to whether an industrial dispute "exists or is apprehended" is not the same thing as to adjudicate the dispute itself on its merits. In the instant case as already stated, the dispute is as to whether the convoy drivers are employees or workmen of TELCO, that is to say, whether there is relationship of employer and employees between TELCO and the convoy drivers. In the instant case as already stated, the dispute is as to whether the convoy drivers are employees or workmen of TELCO, that is to say, whether there is relationship of employer and employees between TELCO and the convoy drivers. In considering the question whether a reference should be made or not the Deputy Labour Commissioner and/or the Government have held that the convoy drivers are not workmen and, accordingly, no reference can be made. Thus, the dispute has been decided by the Government which is undoubtedly not permissible." "13. It is now well settled that, while exercising power under Section 10(1) of the Act, the function of the appropriate Government is an administrative function and not a judicial or quasi judicial function, and that in performing this administrative function the Government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by Section 10 of the Act. See Ram Avtar Sharma v. State of Haryana (1985) 3 SCR 686 : AIR 1985 SC 915 ; M.P. Irrigation Karmchari Sangh v. State of M.P., (1985) 2 SCR 1019 : AIR 1985 SC 860 ; Shambu Nath Goyal v. Bank of Baroda, Jullundur, (1978) 2 SCR 793 : AIR 1978 SC 1088 . 8. In Ram Avtar Sharma and Ors. v. State of Haryana and another, AIR 1985 SC 915 , Supreme Court reiterated that: The reasons given by the Government would show that the Government examined the relevant papers of enquiry and the Government was satisfied that it was legally valid and that there was sufficient and adequate evidence to hold the charges proved. It would further appear that the Government was satisfied that the enquiry was not biased against the workman and the punishment was commensurate with the gravity of the misconduct charged. All these relevant and vital aspects have to be examined by the Industrial Tribunal while adjudicating upon the reference made to it. In other words, the reasons given by the Government would tantamount to adjudication which is impermissible. That is the function of the Tribunal and the Government cannot arrogate to itself that function. All these relevant and vital aspects have to be examined by the Industrial Tribunal while adjudicating upon the reference made to it. In other words, the reasons given by the Government would tantamount to adjudication which is impermissible. That is the function of the Tribunal and the Government cannot arrogate to itself that function. Therefore, if the grounds on which or the reasons for which the Government declined to make a reference under Section 10 are irrelevant, extraneous or not germane to the determination, it is well settled that the party aggrieved thereby would be entitled to move the Court for a writ of mandamus. See Bombay Union of Journalists v. State of Bombay, (1964) 6 SCR 22 : AIR 1964 SC 1617 . It is equally well-settled that where the Government purports to give reasons which tantamount to adjudication and refuses to make a reference, the appropriate Government could be said to have acted on extraneous, irrelevant grounds or grounds not germane to the determination and a writ of mandamus would lie calling upon the Government to reconsider its decision. In this case a clear case for grant of writ of mandamus is made out. 9. In Dhanbad Colliery Karmchari Sangh v. Union of India and others, 1991 Supp.(2) SCC 10 Supreme Court held that Government cannot refuse to refer dispute to Industrial Tribunal itself going on to merits of the dispute. In M.P. Irrigation Karniachari Sangh v. State of M.P., AIR 1985 SC 860 where the State Government refused to refer the question as to whether employees were entitled to dearness allowance and chambal allowance on the ground that government could not bear additional burden of dearness allowance and that chambal allowance was included in the consolidated pay-scale refusal was held wrong as it had no power to decide the dispute and exceeded its jurisdiction. 10. In the instant case the order of refusal to make reference makes it clear that dispute has been decided which was not permissible. Merits were gone into that too in a mechanical manner. 11. Since the fact was seriously disputed whether Petitioner was appointed as a Mining Mate or was an apprentice whether he was regular employee or not. Departmental inquiry was properly conducted or not, the appropriate Government proceeded on the basis that Petitioner is a workman. Merits were gone into that too in a mechanical manner. 11. Since the fact was seriously disputed whether Petitioner was appointed as a Mining Mate or was an apprentice whether he was regular employee or not. Departmental inquiry was properly conducted or not, the appropriate Government proceeded on the basis that Petitioner is a workman. The question whether termination was in accordance with law or not could not be adverted to by the Respondent No. 1. It is held that order Annexure P/1 is bad in law and the dispute should have been referred. It is directed that Respondent No. 1 should refer the dispute for adjudication to the appropriate forum. 12. Writ petition is allowed. Costs on parties.