NAOLEKAR, J. - (1.) PETITIONER is a public limited company incorporated under the Companies Act and engaged in the business of manufacturing fertilisers and chemicals. Respondent No. 2 was appointed by the petitioner company as Stenographer vide letter of appointment issued on 13. 1. 1994. The letter of appointment said in paragraph No. 10 (one of the terms of appointment) that respondent No. 2 will be on probation for a period of one year from the date of joining duties which period may be extended by the company at its sole discretion. During the probationary period, the company has option to terminate respondent No. 2's services without notice and compensation for loss of employment and without giving any reasons therefor. On successful completion of the probationary period, respondent No. 2 will be confirmed in writing. In the absence of any such communication, respondent No. 2 will be deemed to continue on probation. Thereafter, this contract of employment is terminable by one months notice on either side or on payment of one months salary in lieu of notice by either party and without giving any reasons therefor. Respondent No. 2 submitted joining report on the post of Stenographer on 27. 1. 1994. On 21. 1. 1995 the petitioner company having not been satisfied with the work of respondent No. 2, terminated his employment with immediate effect as per the contract entered between the parties. On 12. 9. 1995 respondent No. 2 filed an application before the Labour Conciliation Officer, Labour Department, Kota claiming therein that the said order of termination is illegal and praying for his reinstatement with back wages on the ground of the termination being violative of Secs. 25-F, 25-G and 25-N of the Industrial Disputes Act,1947 (for short "the Act" ). On 15. 12. 1995 the Labour Conciliation Officer issued notice to the petitioner company with a copy of the application moved by respondent No. 2. The petitioner company entered appearance and filed reply to the said application. On 1. 9. 1997 the Labour Conciliation Officer submitted his failure report in the conciliation proceedings. On 23. 3. 1999 respondent No. 1 rejected the application for reference on the ground that no industrial dispute arises. On 24. 7. 2000 respondent No. 1 reviewed its decision dated 23. 3. 1999 and made a reference under Sec. 10 read with Sec. 12 of the Act to the Labour Court for adjudication of the question viz. "whether the termination of service of the respondent No. 2 was proper and valid or not". Aggrieved by the said order of reference made to the Labour Court, the present petition is filed.
(2.) IT is submitted by the counsel for petitioner that under the terms of contract of employment, termination of service of the respondent during the period of probation does not amount to retrenchment under Sec. 2 (oo) of the Act and, therefore, there being no industrial dispute in existence or apprehended, the State Government had no authority to refer the dispute to the Labour Court nor the Labour Court has jurisdiction to entertain the question whether termination of service of the respondent violates Secs. 25f and 25n of the Act. IT is further urged that once the decision is arrived at by respondent No. 1 not to refer the industrial dispute of respondent No. 2, respondent No. 1 has no authority to review its own decision. The statute does not permit authority to review the decision rendered and thus the reference made to the Labour Court is of without jurisdiction. On the other hand it is submitted by the counsel for respondents that while exercising power under Sec. 10 (1) read with Sec. 12 (5) of the Act as to whether a dispute should be referred for adjudication or not, the appropriate government is discharging administrative function and not a judicial or quasi judicial function and, therefore, it is not open for court to consider whether the matter could have been referred to the Labour Court for adjudication or not. IT is further submitted that the respondent No. 1 has an authority to review and reconsider its own decision which has been arrived at previously in exercise of the administrative powers vested in the State. It is well settled now that the adequacy or the sufficiency of the material on which the opinion was formed, is beyond the pale of judicial scrutiny. But if the action of the Government in making the reference is impugned by a party it would be open to such a party to show that what was referred was not an industrial dispute and that the Tribunal had no jurisdiction to make the award. When the "appropriate Government" makes a reference of an industrial dispute for adjudication, it does not decide any question of fact or law. The only condition, which the exercise of that power should satisfy, is that there should be the existence or apprehension of an industrial dispute. When once the Government is satisfied about this question, it acquires jurisdiction to refer the dispute for adjudication. However, the condition precedent to the formation of such opinion, that there should be an existing or apprehended, "industrial dispute" is imperative and the recitals of the existence or apprehension of the industrial dispute cannot preclude the judicial review from going behind those recitals and in determining whether, in fact, there was any material before the "appropriate Government"? and if there was; whether the Government applied its mind in coming to the conclusion that an industrial dispute was in existence or was apprehended, and it was expedient to make the reference? Thus, an order of reference is open to judicial review if it shown that the appropriate Government had no material before it or it has not applied its mind to the material before it or has not taken into consideration certain vital facts which it ought to have taken into consideration, the primary condition for making a reference being existence or apprehension of an industrial dispute between the parties. In the present case admittedly in the terms of appointment under which respondent No. 2 is claiming the right to hold the post, contains a clause whereunder he was placed under probation for a period of one year from the date of joining duties. The clause provides for extension of the period of probation on company's sole discretion. The option was given to the company to terminate the service of respondent No. 2 during the probation period without notice and compensation for loss of employment and without giving any reasons therefor. Clause 10 provides for termination of service during the probation period without giving any reasons. Sec. 2 (oo) of the Act provides that every termination by the employer of service of the workman for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action would amount to retrenchment. Therefore, any termination of a workman for whatever reason otherwise than the punishment inflicted by way of disciplinary action would amount to retrenchment. Clause (bb) to Sec. 2 (oo) which has been inserted by the Act 49 of 1984 (w. e. f. 18. 8. 1984) is an exemption which lays that termination of the service of a workman as a result of the non renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein shall not be retrenchment. Therefore, if the termination is made by way of non renewal of the contract of employment or the termination is the effect of stipulation made in the contract of employment, it shall not tantamount to retrenchment. If the contract entered between the employer and workman, permits termination as one of the terms of employment, the employer will be within its right to terminate service of the workman, which would not amount to retrenchment. If the termination is not retrenchment then Secs. 25f, 25f and 25n shall have no application. In the present case under the contract of employment the workman's services could have been terminated during the period of probation which was for one year from the date of joining duties. Admittedly, respondent No. 2's services have been terminated on 21. 1. 1995 which is within the period of one year. Thus, the termination of service of the respondent No. 2 could not be held to be a retrenchment within the meaning of the Act. If it is not a retrenchment, on the face of record, there cannot be any industrial dispute between the parties i. e. the employer and workman (petitioner and respondent No. 2) which could be adjudicated by the Labour Court on a reference made by the State Government. The State Govt. gets an authority to refer the dispute for adjudication only if there is an industrial dispute in existence or apprehended. In the absence of basic foundation of there being an industrial dispute between employer and the employee, within the meaning of the Act, the State Government does not get an authority, to refer a dispute to Labour Court for its adjudication. In M. Venugopal vs. The Divisional Manager, Life Insurance Corporation of India, Machilipatnam, Andhra Pradesh & another (1), the appellant was appointed on probation for a period of one year from 23. 5. 1984 to 22. 5. 1985 and the said period of probation was extended for further period of one year from 23. 5. 1985 to 22. 5. 1986. Before the expiry of the period of probation his services were terminated. It was held that since the termination was in accordance with the terms of contract, though before expiry of the period of probation, it fell within the ambit of Sec. 2 (oo) (bb) of the Act and did not constitute retrenchment, and thus termination of services of the appellant was held to be a termination under the stipulation under the contract of employment. Therefore, it not being a retrenchment, non compliance of the provisions of Sec. 25f did not vitiate or nullify the order of termination of the appellant. In Escorts Limited vs. Presiding Officer & another (2), it was found that the workman's services have been terminated as per the terms of contract of employment contained in the appointment letter which enabled the appellant to terminate the services of the workman at any stage without assigning any reason. Since the services of the workman were terminated as per the terms of contract of employment, it does not amount to retrenchment under Sec. 2 (oo) of the Act and the Labour Court was in error in holding that it constituted retrenchment and was protected by Sec. 25f and 25g of the Act. In the present case also termination being under the terms of contract of employment, it cannot be a retrenchment and it being not a retrenchment within the meaning of the Act, provisions of Secs. 25f, 25f and 25n are not attracted and thus there is no industrial dispute between the petitioner and respondent No. 2 which could have been referred for adjudication before the Labour Court.
(3.) AS regards the submission of the counsel for petitioner that once reference is rejected by State Government, it does not have any authority to reconsider the matter or review its own opinion and decide to make reference, is without any substance in view of the direct decision of the apex Court in Avon Services Production Agencies (Private), Ltd. vs. Industrial Tribunal, Haryana & others (3), wherein it was held that the Government does not lack the power to make the reference in respect of the same industrial dispute which it once declined to refer. Nor is it necessary that the Government must have some fresh material made available to it subsequent to its refusal to make a reference, for the formation of a fresh opinion, for making the reference. It was also observed therein that this is an administrative function of the Government as the expression is understood in contradistinction to judicial or quasi-judicial function. Merely because the Govt. rejects a request for a reference or declines to make a reference, it cannot be said that the industrial dispute has ceased to exist, nor could it be said to be a review of any judicial or quasi-judicial order or determination. The industrial dispute may nonetheless continue to remain in existence and if at a subsequent stage the appropriate Government is satisfied that in the interest of industrial peace and for promoting industrial harmony it is desirable to make a reference, the appropriate Government does not lack power to do so u/sec. 10 (1), nor is it precluded from making the reference on the only ground that on an earlier occasion it had declined to make the reference. The expression "at any time" in Sec. 10 (1) will clearly negative the contention that once the Government declines to make a reference the power to make a reference under Sec. 10 (1) in respect of the same dispute gets exhausted. This authority is a complete answer to the contention raised by the counsel for petitioner that the government does not have any power to review its own decision. For the view taken by me that there does not exist an industrial dispute which could have been referred for adjudication to the Labour Court, this petition is allowed. Reference made by the State Govt. vide communication No. F1 (1)/1683/review/97 dated 24. 7. 2000 is quashed. The Labour Court shall not proceed with the reference. .;