- (1.) - 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 Petitions Nos. 16226-29/84 : 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 chargesheet in identical. terms to all the four petitioners calling upon them to show cause within 48 hours of the receipt of the chargesheet 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 against each petitioner was the one set out in Standing Order 20(XIV) 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 behaviour 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 or 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 includng 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 back wages 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 1, 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 the Canteen Committee, to enquire about the working of the Canteen. One 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 misbehaviour. 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 complaint with the third respondent, Senior Divisional Mechancial 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. A disciplinary enquiry followed. Surprisingly the enquiry officer, Senior Loco 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 Mechancial 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 27, 1982 held conciliation proceedings in which the respondents did not participate. Consequently, a failure report was submitted. The appropriate Government being the Central Government as per its order dated December 9, 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 workman 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 management in imposing the penalty of removal from service is neither mala fide 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.
(2.) The neat and narrow question of law raised in these two writ petitions can be formulated thus : 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.
(3.) 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 intergra. In State of Madras v. C. P. Sarathy 1953 SCR 334 at p. 347 : (AIR 1953 SC 53 at p. 57) 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 cannot, 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." Explaining the ratio of the decision in Sarathy's case, in Western India Match Co. Ltd. V. Western India Match Co. Workers, Union (1970) 3 SCR 370: (AIR 1970 SC 1205) it was observed as under (at p. 1209) : "In the State of Madras v. C. P. Sarathy, 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 adjudication 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) After referring to the earlier decisions on the subject in Shambu Nath Goyal v. Bank of Baroda, Jullundur (1978) 2 SCR 793: (AIR 1978 SC 1088) 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 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.;