Bimal Chandra Basak, J. - (1.) In this application under Article 226 of the Constitution of India the petitioner has challenged an order of reference dated 4th of August 1975 under Section 10 of the Industrial Disputes Act 1947 (hereinafter referred to as the "said Act"). The short facts are as follows : The petitioner carries on business in running a cinema house. The respondent No. 6 was employed in the said cinema house. For certain reasons the respondent No. 6 was dismissed from service. According to the petitioner this was done on proved misconduct after making proper domestic enquiry. This is disputed by the employee. Thereafter, the respondent No. 5, that is the Secretary of the Bengal Motion Pictures Employees' Union raised a dispute before the Labour Commissioner praying for intervention under Section 12 of the said Act. A joint conference was held. The joint conference was attended by the representatives of the employer and employee. Thereafter, the Conciliation Officer submitted his report under Section 12(4) wherein he came to the conclusion that the dismissal of the respondent No. 6 by the petitioner was neither illegal nor motivated and as such he suggested that no further action was called for. It appears from the affidavit of the State that on the basis of the said report the Labour Department gave a reply to the parties under Section 12(5) of the "said Act", by letter dated 28th June, 1974 to the effect that the Government did not consider the case to be a fit one for intervention. Regarding non-payment of subsistence allowance, the workman was asked to submit his application for consideration. The petitioner states that thereafter the petitioner received a copy of the plaint and the summons to appear in respect of a suit instituted by the respondent No. 6 for a declaration that he was still an employee under the petitioner. In the plaint it was inter alia contended by the employee that the Labour Commissioner was not the proper forum and the Civil Court was the proper forum for dealing with the case. Accordingly, the petitioner says that it was surprised to receive the order of reference dated 4th August 1975 wherein the very same disputes were sent for adjudication under the said Act. The petitioner has challenged this order of reference on the ground that under these circumstances the order of reference was not valid and proper.
(2.) The circumstances under which the order of reference was issued, after earlier deciding that no reference need be made, has been stated in an affidavit of Subrata Chatterjee, affirmed on the 9th April 1976. In this affidavit it has been stated that after the parties were informed that the Government did not consider the case to be a fit one for intervention, the Union raised the matter again and asked the Government to reconsider the case. After consideration of the representation of the Union, the Government informed the Union by Memo dated 1st October 1974 on the basis of the report of the Labour Commissioner, that the provisions of the Payment of Subsistence Allowance Act, 1969 would supersede the directions of the Omnibus Award 1960. It appears, there was again further representation by the Union for reconsideration of the matter. The matter was again referred to the Labour Commissioner for a report. Thereafter it has been stated as this : "On the basis of the said point being raised again by the Union the Government referred the matter to the Labour Commissioner for further report and the Labour Commissioner after reconsidering the facts and as the questions of law being involved in the case duly gave report dated 22.5.1975 to the effect that the Government may consider on the basis of the facts and circumstances of the case for referring the matter for adjudication to the following issue : 'Whether dismissal of Sri Bikash Chandra Ghosh w.e.f. 3.8.73 is justified? What relief, if any, he is entitled to?' On the basis of the said Report of the Labour Commissioner and after carefully considering the entire case the Government thought it fit to refer the matter for adjudication to the Tribunal under Section 10 read with Section 2A of Industrial Disputes Act and duly referred the matter for adjudication to the 5th Industrial Tribunal constituted under Section 7A of the said Act by the memo dated August 4, 1975."
(3.) Mr. Ghosh appearing for the Union submitted that it was open for the Government to reconsider its earlier decision and make a fresh order of reference as was done in this case. In this connection Mr. Ghosh relied on a decision of the Supreme Court M/s. Western India Watch Co. Ltd. v. The Western India Watch Co. Workers Union & ors. reported in AIR 1970 SC 1205 . Mr. Ghosh relied on the following passage : "In the light of the nature of the function of the Government and the object for which the power is conferred on it would be difficult to hold that once the Government has refused to refer, it cannot change its mind on a reconsideration on the matter either because new facts have come to light or because it had misunderstood the existing facts or for any other relevant consideration and decide to make the reference. But where it reconsiders its earlier decision it can make the reference only if the dispute is an industrial one and either exists at that stage or is apprehended and the reference it makes must be with regard to that and no other industrial dispute.";