Civil Writ Petition No.800 of 1994 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 23.5.2011 Shri Sant Lal, Workman ....Petitioner Versus State of Haryana and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.A.P.Bhandari, Advocates for the petitioner-workman. Mr.Narender Singh, D.A.G. Haryana for respondent Nos.1 & 2. Mr.Chander Singh, Advocate for respondent No.3. M ehinder S ingh S ullar , J. (Oral) Concisely, the facts, culminating in the commencement, relevant for deciding the core controversy involved in the instant writ petition and emanating from the record, are that petitioner-workman Sant Lal (for brevity “the workman”) has joined the management of M/s Mitaso Appliances Limited-respondent No.3 (for short “the management”) on 1.4.1979 as a Die-Casting Operator on permanent basis and was drawing the salary of ` 892/- per month. He proceeded on sanctioned leave from 12.11.1990 to 30.11.1990 to his village where he fell ill. He was stated to have informed the management through letters. On 10.12.1990, he reported for duty with medical certificate, but he was not allowed to resume his work by the management, despite repeated requests. His services were claimed to have been illegally terminated w.e.f. 10.12.1990 by the management. 2. Aggrieved by his dis-engagement, the workman served a demand notice dated 12.12.1990 (Annexure P1) in view of the provisions of The Industrial Disputes Act, 1947 (hereinafter to be referred as “the Act”). The conciliation proceedings were conducted and the failure report was sent by the Conciliation Officer to the appropriate authority. Civil Writ Petition No.800 of 1994 2 3. The State of Haryana (respondent No.1) ultimately rejected the demand notice of the workman, by virtue of impugned order/letter dated 31.5.1991 (Annexure P2) on the ground that he himself has abandoned the services. The workman moved the representations (Annexures P3 and P4) for referring the matter for adjudication, but in vain. 4. The workman did not feel satisfied and preferred the present writ petition, challenging the impugned order/letter (Annexure P2), invoking the provisions of Articles 226 and 227 of the Constitution of India. 5. Levelling a variety of allegations and narrating the sequence of events, in all, according to the workman that although he has served with the management for about 11 years, but since his retrenchment is illegal, without issuing any show cause notice, charge sheet and holding any inquiry, so, the impugned order (Annexure P2) is not only illegal, against the principle of natural justice and arbitrary, but against the statutory provisions of the Act as well. The appropriate Government ought to have referred the matter to Labour Court for adjudication, but it fell in error in this regard. On the basis of aforesaid allegations, the workman sought the quashment of the impugned order (Annexure P2) in the manner indicated hereinabove. 6. The Management refuted the claim of workman. The respondent Nos.1 and 2 filed their joint written statement, while respondent No.3 filed its separate written statement, inter-alia admitting the employment of workman, issuance of demand notice (Annexure P1) and conciliation proceedings. However, it was claimed that workman willfully absented from his duty and his services were rightly terminated. It will not be out of place to mention here that the respondents have stoutly denied all other allegations contained in the writ petition and prayed for its dismissal. 7. After hearing the learned counsel for the parties, going through the record and relevant provisions of the Act with their valuable help and after deep Civil Writ Petition No.800 of 1994 3 consideration over the entire matter, to my mind, the instant writ petition deserves to be accepted in this context. 8. As is evident from the record, that workman has worked for a considerable period of about 11 years with the management. The management sanctioned his leave and he went to his village, where he was stated to have fallen ill and informed the management in this regard. His services were retrenched by the management without issuing any show cause notice, inquiry or payment of retrenchment compensation. As the re-conciliation proceedings failed, therefore, the matter was referred to the government, but his prayer was declined by the Joint Secretary to Govt. of Haryana (respondent No.1), by means of impugned order (Annexure P2), which reads as under:- “In reference to the above you are informed that Government do not feel your case fit for making a reference of the same to the Court because on enquiry it has come to the notice that you had yourself absented from the duty for which the Management had struck off your name from the roll register. The management had sent you a cheque for Rs.6200.70 for full and final settlement which you have not accepted.” 9. Above being the position on record, now the sole question, that arises for determination in the instant petition is, as to whether the Joint Secretary to Government of Haryana (respondent No.1) has any jurisdiction to come to the conclusion that the workman himself absented from the duty in this context? 10. Having regard to the rival contentions of the learned counsel for the parties, here, to me, respondent No.1 did not have the jurisdiction to adjudicate upon in industrial dispute between the parties and has illegally assumed the power of the Labour Court. 11. It is not a matter of dispute that section 10 of the Act deals with the reference of dispute between the workman and Management, while sections 11 and 11-A postulate the procedure and powers to give appropriate relief by conciliation officers, Boards, Labour Courts, Tribunal and National Tribunals. 12. Sequelly, section 12(5) of the Act posits that “if, on a consideration Civil Writ Petition No.800 of 1994 4 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. 13. A co-joint reading of these provisions, would leave no manner of doubt, that the power of Government is only to refer and it cannot adjudicate upon the matter. There is a clear distinction in the demarcated functions of reference by the Government and the Court's adjudication. The power of reference of the Government under section 12(5) has to be read with section 10(1) of the Act. In dealing with an industrial dispute in respect of which a failure report has been submitted under S.12(4), the appropriate Government ultimately exercises its power under section 10(1) of the Act, subject to this that section 12(5) imposes an obligation on it to record reasons for not making the reference when the dispute has gone through conciliation and a failure report has been made under S.12(4). 14. Ex facie, the argument of the learned counsel for the workman that the Government has declined the reference, based on irrelevant and extraneous consideration, has considerable force. The appropriate Government should not purport to reach a final decision on the said questions of law, because that would normally lie within the jurisdiction of Industrial Tribunal/Labour Court. Similarly, on disputed questions of fact, the appropriate Government cannot purport to reach final conclusions in this respect as it would again be the province of the Industrial Tribunal. 15. As is clear, the main ground, which appears to have been weighed with the Joint Secretary in declining the reference was that the workman himself absented from the duty, left his service and there is no justification for reference. Here, to my mind, the Joint Government has slipped into deep legal error in this relevant connection. The respondent No.1 has vaguely presumed the absence of Civil Writ Petition No.800 of 1994 5 the workman, even without indicating the period of his absence and without any inquiry that he willfully remained absent and without any cogent material on record, as well. In this manner, the Joint Secretary has illegally assumed the power and jurisdiction of the Industrial Tribunal and Labour Courts and decided the factual matrix and law point, which was in the domain of the Industrial Tribunal. Therefore, the impugned order (Annexure P2) cannot legally be sustained in this relevant connection. 16. An identical question arose before the Hon'ble Apex Court in case Ram Avtar Sharma and others v. State of Haryana and another (1985) 3 Supreme Court Cases 189. Having interpreted the relevant provisions, it was ruled as under:- “The view that while exercising power under Section 10(1), the Government performs administrative function can be supported by an alternative line of reasoning. Assuming that making or refusing to make a reference under Section 10(1) is a quasi-judicial function, there is bound to be a conflict of jurisdiction if the reference is ultimately made. A quasi-judicial function is to some extent an adjudicatory function in a lis between two contending parties. The Government as an umpire, assuming that it is performing a quasi-judicial function when it proceeds to make a reference, would imply that the quasi-judicial determination of lis prima facie shows that one who raised the dispute has established merits of the dispute. The inference necessarily follows from the assumption that the function performed under Section 10(1) is a quasi-judicial function. Now by exercising power under Section 10, a reference is made to a Tribunal for adjudication and the Tribunal comes to the conclusion that there was no merit in the dispute, prima facie a conflict of jurisdiction may emerge. Therefore the view that while exercising power under Section 10(1) the function performed by the appropriate Government is an administrative function and not a judicial or quasi-judicial function is beyond the pale of controversy. Now if the Government performs an administrative act while either making or refusing to make a reference under Section 10(1), it cannot delve into the merits of the dispute and take upon itself the determination of lis. That would certainly be in excess of the power conferred by Section 10. Section 10 requires the appropriate Government to be satisfied that an industrial dispute exists or is apprehended. This may permit the appropriate Government to determine prima facie whether an industrial dispute exists or the claim is Civil Writ Petition No.800 of 1994 6 frivolous or bogus or put forth for extraneous and irrelevant reasons not for justice or industrial peace and harmony. Every administrative determination must be based on grounds relevant and germane to the exercise of power. If the administrative determination is based on the irrelevant, extraneous or grounds not germane to the exercise of power it is liable to be questioned in exercise of the power of judicial review. In State of Bombay v. K.P. Krishnan it was held that a writ of mandamus would lie against the Government if the order passed by it under Section 10(1) is based or induced by reasons as given by the Government are extraneous, irrelevant and not germane to the determination. In such a situation the Court would be justified in issuing a writ of mandamus even in respect of an administrative order. Maybe, the Court may not issue writ of mandamus, directing the Government to make a reference but the Court can after examining the reasons given by the appropriate Government for refusing to make a reference come to a conclusion that they are irrelevant, extraneous or not germane to the determination and then can direct the Government to reconsider the matter. This legal position appears to be beyond the pale of controversy.” 17. Again, a Division Bench of this Court in case Lal Chand & Others v. State of Haryana & Others, 1998-III-LLJ (Supp.) 419 observed as follows :- “A combined reading of the above quoted provisions shows that the conciliation officer is under a duty to hold conciliation proceedings where any industrial dispute exists or is apprehended. For this purpose, the Conciliation Officer is empowered to investigate the dispute and all matters affecting the merits and the right settlement thereof. In case the parties arrive at a settlement, the Conciliation Officer is required to send a report thereof to the appropriate Government together with the memorandum of settlement signed by the parties to the dispute. In cases where the settlement is not reached between the parties, in terms of Section 12(4), the Conciliation Officer is required to send full report to the appropriate Government specifying therein the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof together with a full statement of those facts and circumstances and the reasons on account of which a settlement could not be arrived at. For the purpose of discharging his duties, the Conciliation Officer is empowered to enter the promises occupied by any establishment to which the dispute relates. He is also empowered to enforce attendance of any person for the purpose of examination of that person. The Conciliation Officer may also inspect any document which may be considered relevant by him. He is also empowered to exercise powers vesting in the Civil Court in respect of enforcing the attendance of any person and examining him. Under Section 12(5) as well as under Section 10(1) the appropriate Government is empowered to make reference of the dispute to an appropriate Board, Civil Writ Petition No.800 of 1994 7 Labour Court, Tribunal or National Tribunal. Where the appropriate Government does not make a reference even after receipt of the report of the Conciliation Officer, it is duty-bound to record reasons and communicate the same to the parties concerned. This shows that the Conciliation Officer is not vested with any power to reject the demand raised by an employee. As a logical corollary it must be held that the Conciliation Officer does not have any power to enter into the merits of the dispute and to take a decision whether any industrial dispute exists or not. The Conciliation Officer is also not entitled to decide whether or not he should send a report to the Government. He is duty bound to send a report to the Government and it is for the Government to consider the matter and pass appropriate order under Section 12(5). Even the power of the Government to make a reference under Section 10 and Section 12(5) has become subject-matter of adjudication by the Supreme Court as well as the High Courts and it is the consistent view that ordinarily the Government is duty- bound to make a reference and only in a case where no dispute exists or the dispute sought to be raised is totally frivolous, on the basis of which the Government can decline to make a reference. In The Rajasthan State Road Transport Corporation and another v. Krishan Kant etc., (1995-II-LLJ 728), the Supreme Court has made the following observations regarding the power of the Government to make a reference :- "The power to make a reference conferred upon the government is to be exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex-facie. The power conferred is the power to refer and not the power to decide, though it may be that the government is entitled to examine whether the dispute is ex-facie frivolous, not meriting adjudication." We are not multiplying the authorities on the subject because it is well settled that while exercising its power under Section 10(1) or Section 12 (5) the Government is not empowered to decide a dispute. The Government cannot examine the merits of a case for the purpose of recording a finding whether the claim made by the workmen is justified or not. The only thing which the Government is required to look into is whether there exists industrial dispute or the one is apprehended. Once the Government finds that the dispute exists or is apprehended, it is duty-bound to make a reference.” 18. Therefore, it is held that the Joint Secretary to Government of Haryana (respondent No.1) did not have the power/jurisdiction to decide the industrial dispute between the parties and has illegally negatived the claim of the workman in this relevant direction. The law laid down in the aforesaid judgments “mutatis mutandis” is applicable to the facts of the present case and is the complete Civil Writ Petition No.800 of 1994 8 answer to the problem in hand. Thus, the contrary arguments of learned counsel for contesting respondents “stricto sensu” liable to be and are hereby repelled and the impugned order (Annexure P2) deserves to be and is hereby set aside in the obtaining circumstances of the case. 19. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 20. In the light of the aforesaid reasons, the instant writ petition is accepted with costs and the impugned order (Annexure P2) is hereby quashed in this regard. Consequently, the respondent-State is directed to pass a necessary order referring the dispute to the competent Court for its adjudication within a period of three months from the date of receipt of a certified copy of this order in accordance with law. (Mehinder Singh Sullar) 23.5.2011 Judge AS Whether to be referred to reporter? Yes/No