Prem Kakar Vs. State of Haryana &
ANR  INSC 100 (5 April 1976)
RAY, A.N. (CJ) RAY, A.N. (CJ) SINGH, JASWANT
CITATION: 1976 AIR 1474 1976 SCR (3)1010 1976
SCC (3) 433
Writ of Mandamus-Whether Rule Nisi can be
issued to compel the State to make a reference U/s 10(1) of the Industrial
Disputes Act-Art 226 if the Constitution- industrial Disputes Act,ss 5. 10(1)
and 12(5)-Scope of.
Under section 12(5) read with 10(1) of the
Industrial Disputes Act, if on consideration of a failure report u/s 12(4) from
the conciliation officer, the appropriate Government is satisfied and is of
opinion that there is an industrial dispute and a case for reference, it may
make such reference to the labour court.
On considering the "failure
report", of the conciliation proceedings in respect of the appellant, an
Electrical foreman, the respondent state informed him that his duties being
supervisory with wages more than Rs. 500/- his case was not covered by the
definition of the terms "workman" under the Industrial Disputes Act
and therefore, not a fit case for adjudication. The appellant assailed the said
orders under Art.226, which was dismissed.
On appeal by special leave the appellant
contended that the question whether an employee is a workman or not was a
disputed question of fact and law and, therefore could only be decided by a
labour court and on a reference only but not by the State Government while
exercising its powers u/s 12(5).
Dismissing the appeal, the Court ^ HELD: (1)
The order of the Government acting under s. 10(1) read with section 12(5) of
the Industrial Disputes Act passed after subjective satisfaction is an
administrative order and not a judicial or a quasi-judicial one. [1012A] Sate
of Madras v. C. P. Sararthy,  S.C.R. 334 and State of Bombay v. K. P.
Krishnan & ors.  1 S.C.R. 227 [followed].
(ii) In entertaining an application for a
writ of mandamus against an order made by the appropriate Government under
section 10(I) read with s. 12(S) of the Act the court does not sit in appeal
over the order and is not entitled to consider the propriety or the
satisfactory character of the reasons. If it appears from the reasons given
that the appropriate Government took into account any consideration irrelevant
or foreign, then the court may in a given case consider the case for a writ of
mandamus. [1012-A-C] Bombay Union of Journalists ors v. The State of Bombay
& CIVIL APPELLATE JURISDICTION: Civil
Appeal No. 119 of 1975.
Appeal by Special leave from the Judgement
and order dated 15-4-1974 of the Punjab and Haryana High Court in Civil Writ
Petition No. 4289 of 1973.
N. N. Goswami and Arvind Minocha for the
G.B. Pai, S. R. Agarwal, Parveen Kumar and
Khaitan & Co. for Respondent No. 2.
1011 The Judgment of the Court was delivered
by RAY, C.J.-This appeal by special leave turns on the question whether the
State can be asked by a writ of mandamus to make a reference under section
10(1) of the Industrial Disputes Act (hereinafter referred to as the Act).
The appellant was employed by the respondent
company Hindustan Dowidat Tools Ltd. The services of the appellant were
terminated on 4th September, 1972. The appellant thereafter demanded
reinstatement. The Conciliation officer started conciliation proceedings under
section 12 of the Act. No settlement could be arrived at. The Conciliation
officer sent a report to the State Government under section 12(4) of the Act.
The State Government by letter dated 7 June, 1973 informed the appellant that
the Government had considered the appellant's case not fit for reference to the
Labour Court for adjudication.
The Government in the letter stated as
"The Government have not found your case
fit for adjudication to a Labour Court because you were working as an
Electrical Foreman in this concern, which was a supervisory job and your wages
were more than Rs. 500/- per month. Therefore, your case is not covered by the
definition of the terms "Workman" given in the Industrial Disputes
Act." The appellant under Article 226 of the Constitution applied for a
writ of mandamus directing the State to make a reference. The High Court
dismissed the application.
The appellant contended that the question
whether the appellant was a workman was a disputed question of fact and law
which could be decided only by an appropriate Labour Court. The appellant also
submitted that if the dispute in question raises questions of law the
appropriate Government should not give a final decision on the question. In
short, the appellant's contention is that the issue whether the appellant is a
workman or not could only be decided by the Labour Court and, therefore,
reference should have been made.
Under Section 10 of the Act where the
appropriate Government is of opinion that any industrial dispute exists or is
apprehended, it may at any time refer the dispute, inter alia, to a National
Tribunal for adjudication.
Section 12 of the Act deals with duties of
Conciliation officers. If the Conciliation officer cannot arrive at a
settlement of the dispute he sends a report to the appropriate Government.
Under section 12(S) of the Act 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, 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 there for.
1012 This Court in State of Madras v. C.P.
Sarathy and State of Bombay v. K.P. Krishnan & ors. held that the order of
the Government acting under section 10(1) read with section 12(5) of the Act is
an administrative order and not a judicial or a quasi-judicial one.
In Bombay Union of Journalists & ors. v.
The State of Bombay and Anr. this Court said that in entertaining an application
for a writ of mandamus against an order made by the appropriate Government
under section 10(1) read with section 12(5) of the Act the Court does not sit
in appeal over the order and is not entitled to consider the propriety or the
satisfactory character of the reasons given by the Government. If it appears
that the reasons given show that the appropriate Government took into account
any consideration irrelevant or foreign, then the Court may in a given case
consider the case on a writ of mandamus.
In K.P. Krishnan's case (supra) the issues in
dispute related to a claim of classification for specified employees and
additional bonus and the sole ground on which the Government refused to refer
the dispute for adjudication under section 12(5) of the Act was that the
employees had adopted go-slow tactics during the relevant year. The facts were
that the company had nevertheless voluntarily paid three months' bonus for that
year and the report of the Conciliation officer was in favour of the employees.
This Court held that the Government acted on irrelevant considerations and
issued a writ of mandamus.
In the present case, the fact is that the
Government found that the appellant was not a workman within the definition of
workman in the Act, and, therefore, it was not a fit case for reference for
The High Court rightly rejected the
application. The appeal is, therefore, dismissed. Parties will pay and bear
their own costs.
S.R. Appeal dismissed.