Ram Avtar Sharma & Ors Vs. State of
Haryana & ANR [1985] INSC 85 (11 April 1985)
DESAI, D.A. DESAI, D.A.
MISRA RANGNATH
CITATION: 1985 AIR 915 1985 SCR (3) 686 1985
SCC (3) 189 1985 SCALE (1)713
CITATOR INFO :
F 1987 SC 695 (2,6) F 1989 SC1565 (13,16)
ACT:
Constitution of India Art 32 and 226-Refusal
by appropriate Government to refer industrial dispute to Industrial Tribunal
Labour Court u/s. 10 I.D. Act- Function of Government u/s. 10-Whether
administrative or Quasi- Judicial -When a writ of mandamus can be issued Industrial
Disputes Act 1947 s 10-Reference-Exercise of power by Govt. to refer an
industrial dispute to industrial Tribunal Labour Court-Whether a writ can be
issued against refusal of Government to refer the dispute.
Administrative Law-Function of government-
u\s 10 I Act to refer a dispute-Whether administrative or quasi-judicial
HEADNOTE:
In all the writ petitions, the petitioners
were dismissed from service on the ground of misconduct after an enquiry held
against each of them. They raised an industrial dispute contending that the
orders imposing punishment of removal were illegal and invalid. The
conciliation proceedings also failed. the State Government in W.Ps. Nos.
16226-29 of 1984 and the Central Government
in W.P. No. 16418 of 1984 passed identical orders in each case refusing to make
a reference to the Tribunal u/s. 10(1) of the Industrial Disputes Act 1917
holding that the punishment was imposed on the petitioners after an enquiry has
been held in accordance with the rules and that the removal from service is
neither malafide nor unjustified and therefore it was not a fit case for making
the reference. Hence this writ petitions.
Allowing the petitions, ^
HELD I.(i) In making a reference u/s. 10(1)
the appropriate government performs an administrative act and not a judicial or
quasi-judicial act and the fact that it has to form an opinion as to the
factual existence of an industrial dispute :15 a preliminary step to the
discharge of its function does not make it any the less administrative in
character. Assuming that making or refusing to make a reference under Sec.
10(1) is a quasi-judicial function, there is 687 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 list 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 this 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 Sec. 10(1) is a
quasi-judicial function. Now by exercising power under Sec. 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 sec.
10(I) 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. [692F- H; 693A-C] C
State of Madras v C.P. Sarathy & Anr [1953] S.C.R. 335 at 347 Western India
Match Co Ltd v Western India Match Co Workers Union & Ors [1970] 2 SCR 370
and Sambu Nath Goyal v Bank of Baroda Jullundur [1978] 2 SCR 793 followed (2)
Every administrative determination must be based on grounds relevant and
germace 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
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.
[693F-H; 694A] (3) In the instant cases, the
workmen questioned the legality and validity of the enquiry which aspect the
Tribunal in a quasi-judicial determination was required to examine. A bare
statement that a domestic enquiry was held in which charges were held to be
proved, if it is considered sufficient for not exercising power of making a
reference under Sec. 10(1), almost all cases of termination of services cannot
go before the Tribunal. And it would render Sec. 2A of the Act denuded of all
its content and meaning.
The reasons given by the appropriate.
Government in each case would show that the Government examined the relevant
papers of enquiry and the Government was satisfied that it was legally valid an
that there was sufficient and adequate evidence to hold the charges proved. It
would further appear that the appropriate Government in each case was satisfied
that the enquiry was not biased against the workmen 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.
688 In other words, the reasons given by (he
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 Sec. 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. Accordingly all the writ petitions are allowed directing the
appropriate government in each case to re. consider its decision and to
exercise power u/s. 10 on relevant and considerations germane to the decision.
In other words a clear case for reference uss.10(1) in each case is made out.
[694G-H;695A-D; 695A;
696-AB] State of Bombay v K.P. Krishnan &
Ors [1971] I SCR 227 at 243 and hay Union of Journalists & Ors v State of
Bombay
& ORIGINAL JURISDICTION: Writ Petition
No. 16226-29 and of 1984.
Under Article 32 of the Constitution of India
A K. Goel for the Petitioners.
Harbans Lal Ashok Grover, O.P., Sharma, R.N.
Poddar and C.V Subba Rao for the Respondents.
The Judgment of the Court was delivered by
DESAI, J. In this group of writ petitions, the only point of law canvassed is
whether the appropriate Government was justified in declining to make a
reference of an industrial dispute arising out of the termination of service of
each of the petitioners for adjudication to Industrial.
Tribunal/Labour Court under Sec. 10 of the
industrial Disputes Act, 1947.
Writ Petition Nos. 16256-29/84: Four
petitioners were the workmen employed by the second respondent Hyderabad
Asbestos Cement Production Ltd. ('employer' for short). The employer on April
11, 1983 issued charge-sheet in identical terms to all the four petitioners
calling upon them to show cause within 48 hours of the receipt of the
charge-sheet as to why suitable disciplinary action should not be taken against
each of them. The charge-sheet referred to an incident that occurred on 11th
April, 1983 at 8.15 A M.
between two groups of workers presumably
owing loyalty to rival unions. The misconduct alleged 689 against each
petitioner was the one set out in Standing Order 20 (X[V) and 20(XXV) of the
Certified Standing Orders of the employer. Briefly stated, the charges were
that the petitioners were guilty of fighting or riotous or disorderly behavior as
also manhandling beating etc. Other workmen of the Company which acts were
subversive of the discipline expected of the workmen of the Company. It is
alleged that disciplinary enquiry followed and the enquiry officer submitted
his report holding each of the petitioners guilty of the misconduct imputed
against him. The Assistant Vice- President of the employer Company, after
having gone through the report submitted by the enquiry officer and after
perusal of the record of proceedings of enquiry and the connected documents
concurred with the findings recorded and reported by the enquiry officer
holding the petitioners guilty of charges. After taking into consideration
various relevant circumstances including the past record of the workmen, each
of the petitioners was dismissed from the employment of the employer. It may be
mentioned that during the pendency of the enquiry, all the petitioners had been
put under suspension and while dismissing the petitioners, the period of
suspension was treated as absence without leave. The petitioners raised an
industrial dispute as per notice dated May 12, 1984 calling upon the employer
to reinstate them with backwages and treat them in service without a break.
Copies of the notice were also served upon the authorities in the Labour
Department of the Haryana Government. The Labour-cum-Conciliation Officer held
conciliation proceedings and submitted a failure report on June 30 1984. The
second respondent, the State of Haryana, after taking into consideration the
report of the Conciliation Officer, by its order dated September l, 1984
declined to make a reference on the ground that 'the Government does not
consider the case to be fit for reference for adjudication to the Tribunal as
it has been learnt that the services of the petitioners were terminated only
after charges against them were proved in a domestic enquiry.' The present writ
petition is filed questioning the correctness and validity of this order.
Writ Petition No. 16418/84: Petitioner S.K.
Sharma was, at the relevant time, employed as Electrical Fitter in the Diesel
Shed at Tuglakabad. He was Assistant Secretary of the Uttar Railway Karamchari
Union, Diesel Shed Branch. He was also a member of the Canteen Committee. On
August 2, 1981 the petitioner went to the Canteen, according to him, in his
capacity as the member of 690 the Canteen Committee, to enquire about the
working of the Can teen. On Shri Gurbachan Singh, a Foreman, marked the
petitioner absent from duty and made an entry indicating that the petitioner had
absented himself from duty and gave a direction that the petitioner should not
be allowed to join duty without his permission. On the next day i.e.
August 3, 1981, when the petitioner reported
for duty, token was not issued to him by the Time Keeper and he was informed
that the token could not be issued to him until he brought a slip from Foreman
Shri Gurbachan Singh. As the latter was not on duty on that day, petitioner and
10 other workmen who too had been marked absent went to the residence of the Foreman
Shri Gurbachan Singh and enquired from him why they were not permitted to join
duty, Shri Gurbachan Singh declined to have given any direction in this behalf
and rebuked the petitioners for coming to his residence and accused them of
misbehavior. The petitioner and several others then approached the General
Foreman who intervened and ordered the petitioner and others to join duty.
Gurbachan Singh thereafter lodged a
con-plaint with the third respondent, Senior Divisional Mechanical Engineer,
alleging that the petitioner has misbehaved with him and had attempted to
manhandle him. On receipt of this report from Gurbachan Singh, Petitioner was
placed under suspension on August 5, 1981, and was served with a charge-sheet.
The petitioner denied the imputation disciplinary enquiry followed.
Surprisingly the enquiry officer, Senior Local Inspector Shri Joginder Lal, did
not record the statement of Shri Gurbachan Singh who was the prime witness but
examined two other witnesses who claimed to be the neighbourers of Shri
Gurbachan Singh. The enquiry officer submitted his report dated October 24,
1981 holding the petitioner guilty of misconduct. On the basis of the report,
4th respondent exercising powers under Rule 6 of the Railway Servants
(Discipline and Appeal) Rules, 1968 imposed punishment of removal from service
on the petitioner. After an unsuccessful appeal to the Divisional Mechanical
Engineer, the Uttar Railway Karamchari Union espoused the cause of the
petitioner and raised an industrial dispute contending that the order imposing
punishment of removal from service was illegal and invalid. Central Labour
Commissioner pursuant to the application from the Union dated may 29, 1982 held
conciliation proceedings in which the respondents did not participate. Consequently,
a failure report was submitted.
The appropriate Government being the Central
691 Government as permits order dated December, 1983 rejected the request for a
reference under Sec. 10 of the Industrial Disputes Act, 1947 on the ground
'that the penalty of removal from service was imposed on the workmen on the
basis of enquiry held in accordance with the procedure laid down in the Railway
Servants (Discipline and Appeal) Rules, 1968 and that the action of the
management in imposing the penalty of removal from service is neither malafide
nor unjustified and therefore the appropriate Government does not consider it necessary
to refer the dispute to an Industrial Tribunal for adjudication ' It is this
order which is challenged in this writ petition.
The neat and narrow question of law raised in
these two writ petitions can be formulated thus y whether the appropriate
Government in each case was justified in refusing to make a reference on the
grounds mentioned in each order more specifically that as the punishment was
imposed after an enquiry held in accordance with the rules and on the report of
the enquiry officer, it is not a fit case for making the reference. In other
words, the question of law is what are the parameters of power of the
appropriate Government under Sec. 10 while making or refusing to make a
reference to an industrial tribunal for adjudication of an industrial dispute.
The first question to be posed is whether
while exercising the power conferred by Sec. 10 to refer an industrial dispute
to a Tribunal for adjudication, the appropriate Government is discharging an
administrative function or a quasi-judicial function. This is no more res
integra. In State of Madras v. C.P. Sarathy & Anr.1) a Constitution Bench
of this Court observed as under:
"But, it must be remembered that in
making a reference under Sec. 10(1) the Government is doing an administrative
act and the fact that it has to form an opinion as to the factual existence of
an industrial dispute as a preliminary step to the discharge of its function
does not make it any the less administrative in character. The Court can not,
therefore, canvass the order of 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 determination." (1) [1953] S.C.R. 334 at 347.
692 Explaining the ratio of the decision in
Sarathy's case(1), in Western India Match Co. Ltd. v. Western India March Co.
Workers Union & Ors,(2) it was observed as under:
"In the State of Madras v. C.P.
Sarathy(1)' this Court held on construction of s. 10(1) of the Central Act that
the function of the appropriate Government thereunder is an administrative
function. It was so held presumably because the Government cannot go into the
merits of the dispute its function being only to refer such a dispute for ad
jurisdiction so that the industrial relations between the employer and his
employees may not continue to remain disturbed and the dispute may be resolved
through a judicial process as speedily as possible." (Emphasis supplied)
(1) After referring to the earlier decisions on the subject in Shambhu Nath Goel
v. Bank of Baroda, Jullundur (2) it was held that, in making a reference under
Sec.
10(1), the- appropriate Government is doing
an administrative act and the fact that it has to form an opinion as to the
factual existence of an industrial dispute as a preliminary step to the
discharge of its function does not make it any the less administrative in
character. Thus, there is a considerable body of the judicial opinion that
while exercising power of making a reference under Sec. 10(1), the appropriate
Government performs an administrative act and not a judicial or quasi-judicial
act The view that while exercising power under Sec. 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 Sec.
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 list between two contending
parties The Government as an umpire, assuming that it is performing a quasi-
(1) [1970] 2 S.C.R. 370.
(2) [1978] 25 S.C.R. 793.
693 judicial function when it proceeds to
make a reference, would imply that the quasi-judicial determination of lis
prima facie show that one who raised the dispute has established merits of the
dispute. The inference necessarily follows from the assumption that the
function performed under Sec. 11)(1) is a quasi-judicial function. Now by
exercising power under Sec. 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 Sec. 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
Sec. 10(1), it cannot delve into the merits of the dispute and take upon itself
the determination of its. That would certainly be in excess of the power
conferred by Sec. 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 frivolous or bogus or put forth for
extraneous and irrelevant reasons not for justices 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 and
Ors.(1) it was held that a writ of mandamus would lie against the Government if
the order passed by it under Sec. 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 [1961] 1 SCR 227 at 243.
694 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.
Accordingly, it is necessary to examine the
reasons given by the Government to ascertain whether the determination of the
Government was based on relevant considerations or irrelevant, extraneous or
considerations not germane to the determination.
Re: Writ Petition Nos. 16226-29/84: The
reasons assigned by the Government for refusing to make a reference are to be
called out from the letter Annexure 'A` dated September 1, 1984 sent by the
Joint Secretary, Haryana Government, Labour Department to the petitioners It is
stated in the letter that: "the Govt. does not consider your case to be
fit for reference for adjudication, to the Tribunal as it has been learnt that
your services were terminated only after charges against you were proved in a
domestic enquiry." The assumption underlying the reasons assigned by the
Government are that the enquiry was consistent with the rules and the standing
orders, that it was fair and just and that there was unbiased determination and
the punishment was commensurate with the gravity of the misconduct. The last
aspect has assumed considerable importance after the introduction of Section
11A in the Industrial disputes Act by Industrial Disputes (Amendment) Act, 1971
with effect from December 15, 1971. It confers power on the Tribunal not only
to examine the order of discharge or dismissal on merits as also to determine
whether the punishment was commensurate with the gravity of the misconduct
charged. In other words, Sec. 11A confers power on the Tribunal Labour Court to
examine the case of the workmen whose service has been terminated either by discharge
or dismissal qualitatively in the matter of nature of enquiry and
quantitatively in the matter of adequacy or otherwise of punishment. The
workmen questioned the legality and validity of the enquiry which aspect the
Tribunal in a quasi-judicial determination was required to examine bare
statement that a domes tic enquiry was held in which charges were held to be
proved, if it is considered sufficient for not exercising power of making a
reference under Sec. 10(1), almost all cases of termination of services cannot
go before the Tribunal. And it would render Sec. 2A of 695 the Act denuded of
all its content and meaning. 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 workmen and the
punishment was commensurate with the gravity 13 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. Therefore if the grounds on which or the
reasons for which the Government declined to make a reference under Sec. 10 are
irrelevant, extraneous or not germane to the determination, it is well settled
that the party aggrieved there would be entitled to move the Court for a writ
of mandamus. (See Bombay Union of Journalists & Ors. v. The State of Bombay
& Anr.(1) 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.
Writ Petition No. 16418/84: The appropriate
Government being the Central Government in this case declined to make a
reference as per its order dated December 9, 1983 in which it is stated that
'the action of the management in imposing on the workmen penalty of removal
from service on the basis of an enquiry and in accordance with the procedure
laid down in the Railway Servants (Discipline & Appeal) Rules, 1968 is
neither malafide nor unjustified. The appropriate Government does not consider
it necessary to refer the dispute to the industrial Tribunal for adjudication.'
Ex facie it would appear that the Government acted on extraneous and irrelevant
considerations and the reasons here in before mentioned will mutatis mutandis
apply in respect of present order of the Government under challenge. Therefore
for the same reasons, a writ of mandamus must be issued.
(1) [1964] 6 S.C.R. 22.
696 Accordingly all the writ petitions are
allowed and the rule is made absolute in each case. Let a writ of mandamus be
issued directing the appropriate Government in each case namely the State of
Haryana in the first mentioned group of petitions and the Central Government in
the second petition to reconsider its decision and to exercise power under Sec.
10 on relevant and considerations germane to
the decision.
In other words, a clear case of reference
under Sec. 10(1) in each case is made out. We order accordingly.
Respondent No. 2, Hyderabad Asbestos Cement
Products Limited in WP Nos. 16226-29 of 1984 shall pay the costs which is
quantified at Rs. 2,000/- to the petitioners within four weeks from today.
There will be no order as to costs in WP No. 16418/84.
M.L.A. petitions allowed.
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