JUDGMENT [ENTITY], J.
1. Notice of Motion Bench was issued in this case by a Division Bench of this Court on the basis of the contention of the learned counsel for the petitioner that the reference has been declined by the Government by deciding the dispute on merits. The writ petition is contested on behalf of Respondent No. 2 and reply has been filed by Respondent No. 2.
2. Briefly stated the facts are that the petitioner was employed as Operator by Respondent No. 2 in the year 1985. He was granted annual increments from time to time by Respondent No. 2 and was promoted to the post of Senior Operator in the pay scale of Rs. 425-15-705 at the basic pay of Rs. 440/- per month with effect from March 1, 1987. He was further given the revised pay scale and his basic pay was the petitioner was ultimately fixed at Rs. 850/- per month with effect from August 1, 1989 in pursuance of a settlement reached between the parties. This factual position is admitted by both the parties. The petitioner has stated that he was suffering from pain in the left side of leg and back because of some disorder in spine and was on leave with effect from May 27, 1991 onwards and applied for leave duly supported with medical certificate to Respondent No. 2 in time and also informed this factual position vide application dated September 24, 1991 to Respondent No. 2. A copy of the said application is appended as Annexure P-1 with the writ petition. It is then stated in the petition that inspite of this illness, Respondent No. 2 treated the petitioner absent from duty and issued Show Cause Notice to the petitioner to join duty on September 7, 1991 and it was made clear therein that in case the petitioner failed to join duty, it would tantamount to abandonment of the job. The petitioner was not medically fit to join duty and was under the treatment of the doctors of General Hospital, Sector 16 Chandigarh /other doctors and as per the advice of the doctors, it was not possible for the petitioner to join duty and this fact, was brought to the notice of Respondent No. 2, but without considering this fact, his services were terminated illegally and even an enquiry was not held before effecting termination. It is further stated in the petition that since Respondent No. 2 illegally terminated his services, he raised a dispute with the Management through Demand Notice dated September 19, 1992 which was sent to the Assistant Labour Commissioner, Punjab, Mohali on September 26, 1992. The matter was taken up by the Assistant Labour Commissioner for reconciliation and Respondent No. 2 while filing reply, admitted the fact that the petitioner was absent from duty and his services had been terminated without holding enquiry. The Assistant Labour Commissioner sent failure conciliation report to Respondent No. 1 who vide order dated May 12, 1993 refused to refer the industrial dispute to the competent Court of law for adjudication. A copy of this letter is annexed as Annexure P-9 with the writ petition. The petitioner again filed a representation to Respondent No. 1 vide letter dated December 13, 1993 for re-consideration of his case for referring the dispute to the competent Court of law for his illegal termination, but the same was also rejected by Respondent No. 2 without reconsidering his case.
3. The petitioner has challenged the order/ letter dated May 12, 1993 (Annexure P-9) vide which the demand of the petitioner to refer his case for adjudication to the concerned authority was rejected by Respondent No. 1. The learned counsel for the petitioner argues that while exercising powers under [SECTION] of the [ACT], it is not open to the Government to dwell upon the merits of the dispute and decide on the legality or otherwise of the action taken/order passed by the employer. The power vesting in the Government to make or not to make a reference is administrative in character and, therefore, it is not within the competence of the Government to make adjudication of the dispute between the parties, argues the counsel. It is then submitted by the learned counsel that only thing which could be looked into by the Government while taking decision on the report submitted by the Conciliation Officer is as to whether there exists an industrial dispute or there is a reasonable apprehension of the industrial dispute.
4. In the written statement filed on behalf of Respondent No. 2, it is stated that the services of the petitioner were never terminated /retrenched or discharged by the management. His name was struck off from the rolls of the company due to his long and unexplained absence from duty for which he tendered no reasonable explanation. It was further the case of Respondent No. 2 that no industrial dispute existed between the parties. It was stated in the reply that the petitioner did not supply the company due and proper medical certificate in support of his application for medical leave and he instead gave a slip issued by a [ENTITY] and [ENTITY] in support of his illness. The said certificate was not acceptable to the company as per its rules, and therefore, the petitioner was treated as absent from duty with effect from May 27, 1991.
5. On the other hand, the learned counsel appearing for Respondent No. 2 argues that Respondent No. 1 had the jurisdiction to decline the reference if he considered that prima facie no case was made out in favour of the petitioner for adjudication to the proper authorities. He has cited [PRECEDENT] in support of his case.
6. The letter /order of the Labour Commissioner annexed as Annexure P/9 communicated to the petitioner reads as under :-
"Subject Demand Notice dated September 19, 1992.
It is to intimate you regarding your demand notice dated September 19, 1992, that demands mentioned in your demand notice are not liable to be sent for adjudication because you did not attend your duties upto September 23, 1991. You even did not join duty inspite of reminders sent by Management to you many a times and through news paper.
Sd./-
Asstt. Labour Commissioner, for Labour Commissioner, Punjab."
7. The letter /order of the Labour Commissioner declining the reference of the petitioner specifically states that the case of the petitioner was not liable to be sent for adjudication because he did not join his duty upto September 23, 1991 and he even did not join the duty inspite of reminders sent by the Management to him many times and through newspaper. The wording of this letter clearly shows that the Labour Commissioner had entered upon to decide the dispute between the parties himself. There are clear allegations made by the petitioner that he was suffering from pain in the left side of leg and back because of disorder of spine and was on leave with effect from May 27, 1991 onwards and an application for leave supported by a medical certificate was sent to Respondent No. 2 in time and when his leave period expired, he informed the concerned Authorities about his inability to attend office due to illness vide his application dated April 24, 1995, which of course, is disputed by Respondent No. 2.
8. On the other hand, Respondent No. 2 has taken a stand in his written statement that the petitioner did not attend the office after taking leave for illness and he even did not attend his duty despite warning given to him through letters and press. The medical certificate produced by the petitioner was not considered as genuine by Respondent No. 2. Respondent No. 2 has denied that the services of the petitioner were term inated. He even denies that the dispute between him and the petitioner was an industrial dispute at all. These are, thus, facts which are disputed by both the parties. This contentions matter between the parties obviously could not be decided by Respondent No. 1 as a Labour Commissioner. In that event, he could only refer the dispute to the Authority concerned and could not decide the disputed questions of fact himself
9. [SECTION] of the [ACT] reads as under :-
"10. Reference of disputes to Boards, Courts or Tribunals. (1) where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing.
(a) refer the dispute to a Board for promoting a settlement thereof; or
(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry ; or
(c) refer the dispute or any matter appearing to be connected with, or relevant to the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or
(d) refer the dispute on any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication.
Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under Clause (c):
Provided further that where the dispute relates to a public utility service and a notice under [SECTION] has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced ;
Provided also that where the dispute in relation to which the Central Government is the appropriate Government, it shall be competent for that Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government."
10. A plain reading of [SECTION] of the Act shows that while taking a decision as to whether a reference should or should not be made, the Government is required to consider as to whether an industrial dispute exists or is apprehended. The scope of enquiry while taking a decision in the matter is limited. The Government cannot dwell upon the merits of the dispute and take upon itself the determination of the lis between the parties. If a dispute exists or is apprehended, the Government cannot ordinarily decline to make a reference. Refusal to make a reference may be justified where at a bare examination of a controversy between the parties, the Government comes to the conclusion that the dispute sought to be raised is frivolous or vexatious. In Bombay Union of Journalists' case (supra), their Lordships of the Supreme Court examined the scope of [SECTION] and observed (at pp 354-355) :
"But it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under [SECTION], or not. If the claim made is patently frivolous, or is clearly belated, the appropriate Government may refuse to make a reference. Likewise, if the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse, the appropriate Government may take that into account in deciding whether a reference should be made or not".
The Supreme Court, however, observed :
"Similarly, on disputed questions of fact, the appropriate Government cannot purport to reach final conclusions, because that would normally lie within the jurisdiction of Industrial Tribunal, even the questions of law cannot be decided by the Government because that would be within the province of the Industrial Tribunal."
11. In [PRECEDENT], their Lordships of the Supreme Court held that while exercising powers of the State Government under [SECTION] for making reference, the Labour Commissioner had no jurisdiction to decide the question as to whether the employee was a workman within the meaning of [SECTION] of the Act.
12. In The [PRECEDENT], the Supreme Court again spoke of the limited jurisdiction of the Government to prima facie consider the merits of the dispute and observed at p. 522 :
"While considering 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 the workmen should be left to the Tribunal to be decided. [SECTION] permits the appropriate Government to determine whether the 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 quasi-judicial Tribunal by an administrative authority namely, the Appropriate Government. There may be exceptional cases in which the State Government may on a proper examination of the demand, come to conclusion that the demands are either perverse or frivolous and do not merit reference. The Government should be very slow to attempt examination of demand with a view to decline reference and Courts will always be vigilant whenever the Government attempts to usurp powers of the Tribunal for adjudication of valid disputes. To allow the Government to do so, would be to render [SECTION] and [SECTION] of the [ACT] nugatory, [PRECEDENT] explained."
13. In [PRECEDENT], the Supreme Court specifically pointed out the distinction between the formation of opinion about the existence or apprehension of industrial dispute and adjudication of the dispute. The Court held as under at pp 560-561 :
"While exercising power under [SECTION], 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 to the determination which would certainly be in excess of the power conferred on it by [SECTION]. It is true that in considering the question of making reference under [SECTION], the Government is entitled to form an opinion as to whether the industrial dispute 'exists or is apprehended' but the formation of opinion as to whether the industrial dispute 'exists or is apprehended' is not the same thing as to adjudicate the dispute itself on its merits, where, as in the instant case, the dispute was whether the persons raising the dispute are workmen or not, the same cannot be decided by the Govenment in exercise of its administrative function under [SECTION] of the Act. The order of the Government refusing to refer a dispute on the ground that the persons raising the dispute are not workmen, is liable to be set aside."
14. In [PRECEDENT], the Supreme Court reversed the order of Gujarat High Court which had upheld the decision of the Government refusing to make a reference. The High Court had itself examined the matter and came to the conclusion that the employees were not workmen. Their Lordships of the Supreme Court observed that the High Court had itself examined the matter and come to the conclusion that the employees were not workmen. Their Lordships of the Supreme Court observed that the High Court should not have examined the merit of the dispute and should have directed the Government to refer the dispute between the parties.
15. In [PRECEDENT], their Lordships of the Supreme Court once again reiterated that the appropriate Government cannot decline to make a reference of an Industrial Dispute by going into the merits of the dispute. Likewise in [PRECEDENT] and [PRECEDENT], the Supreme Court held that the appropriate Government cannot decline to make a reference of an industrial dispute arising out of the termination of a workman on the ground that the domestic enquiry resulting in the termination of the services of the workman was, in the opinion of the State Government, in conformity with the principles of natural justice and that the punishment imposed on the workman was not disproportionate to the offence with which he was charged.
16. A Division Bench of this Court in [CASE NUMBER] ([PRECEDENT]), after discussing the various authorities of the Supreme Court and the High Court, held that the function of the appropriate Government under [SECTION] of the Act 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 and it cannot usurp the jurisdiction of the Labour Court / Industrial Tribunal to make an adjudication of the dispute.
17. From the above quoted decisions of the Hon'ble Supreme Court and our own High Court, we find that the Government could not decline to refer the dispute for adjudication to the proper authority merely by saying that the demands mentioned in the demand note were not liable to be sent for adjudication because the petitioner did not attend to his duties upto September 23, 1991 inspite of the reminders sent to him by the Management many times and also through newspapers. By doing so, the Labour Commissioner has taken upon himself to decide the disputed questions of facts between the patties which is beyond his scope as discussed above by us by quoting the decisions of the Supreme Court and the High Court exhaustively. Resultantly, this writ petition is allowed. The order/ Letter Annexure P-9 is declared illegal and is hereby quashed. The respondent-Government is directed to take a fresh decision on the question of reference within a period of one month from the date of submission of a certified copy of this order.