V. S. DAVE, J. - (1.) THIS writ petition has been directed against the order of the Government, dated June 6, 1985 by which it has refused to refer the dispute to Industrial Tribunal relating to the dismissal of the petitioner from service.
(2.) THE ground for challenge is that the State Government has not considered the guidelines given by the Supreme Court in cases of ordering references. It is submitted that in cases of termination and dismissal referable for adjudication, as Industrial dispute defined under S. 2 (K.) and falling under S. 28 of the Industrial Dispute Act the Government can only refuse to make reference if the prayer is either perverse or frivolous else the workman has a right to get the case adjudicated from the Industrial Tribunal otherwise a workman has no other remedy or forum to challenge the order of dismissal which according to him is illegal and unjustified. We have perused the petition and the decisions of their Lordships of the Supreme Court reported in Bombay Union of Journalists Vs. The State of Bombay (1), M. P. Irrigation Karamchari Sangh Vs. State of M. P. (2) V. Veera-rajan Vs. Government of Tamil Nadu (3), and The Premier Automobile Ltd. Vs. Kamlakar Shantram Wadke (4 ). Their Lordships have dealt with the jurisdiction of various courts for trying the cases of the workmen and regarding adjudication of the Industrial dispute. They held as under: "reference of an industrial dispute for adjudication in exercise of the powers of the Government under S. 10 (l) is so common that it is difficult to call the remedy a misnomer or insufficient or inadequate for the purpose of enforcement of the right or liability created under the Act. " In Bombay Union of Journalists Vs. The State of Bombay (supra) their Lordships have held that "it is open to the State to take the broad features into consideration while exercising jurisdiction under S. 10 (1) of the Act. If the dispute in question raises a question of law the appropriate Government should not purport to reach a final conclusion on the said question of law because that would normally lie within the jurisdiction of the Industrial Tribunal. Similarly on disputed questions of law appropriate Government cannot purport to reach final conclusions, for that again would be the province of the Industrial; Tribunal". This shows that their Lordships limited the jurisdiction of the Government in dealing with the cases and the finality was given only to the awards of the Industrial Tribunal. The matter was again considered in M. P. Irrigation Karamchari Sangh Vs. State of M. P. (supra) and this time more strong phraseology was used by their Lordships. Their Lordships held, "therefore, while conceding a very limited jurisdiction to the State Government to examine patent frivolousness of the demands, it is to be understood as a rule, that adjudication of demands made by workmen should be left to the Tribunal to decide". Thus frivolousness of the demands was the only consideration of which the Government could refuse to make a reference to the Industrial Tribunal. In V. Veerarajan Vs. Government of Tamil Nadu (supra) their Lordships approved the aforesaid judgments and added the word 'perverse' alongwith the word 'frivolous' meaning thereby further restricted the jurisdiction of the Government. In the case before their Lordships of the Supreme Court there was a detailed speaking order giving 7 reasons for refusing the reference as against none in the instant case, yet their Lordships of the Supreme Court held that there is no perversity or frivolousness in the demand and directed the Government to send the reference within four weeks. Their Lordships quoted the grounds of refusal as well as discussed the law as under : After the matter went back the State Government has made the following order : "accordingly the Government have re-examined the conciliation a report first read above and all other connected relevant records and consider that 'it is not necessary to refer the cases of Thiruvalargal K. Arinathan, A. C. Kabaleswaran, V. Srinivasan, V. Basrarajan, P. Subramanian, and H. Indirarajan for adjudication both on meritax and on expediency for the following reason : (1) Lucas T. V. S. Limited are suppliers of some items to the Defence. (2) There was industrials unrest followed by violence and stoppage of work, in this establishment in 1977 due to inter union rivelry. Again there was industrial unrest due to inter union rivelry in this establishment in 1978 employing 2400 workmen. To avoid recurrence of such incidence and stoppage of work again in 1978 the management took disciplinary action against 154 workman. The Management took back 134 workmen out of 154. The seven workman are among those who were dismissed considering the gravity of the offence. (3) The Management charge-sheeted these seven workmen under the specific provisions of the standing orders for misconduct such as wilful disobedience of lawful orders of the superiors, acts, or subversive of good and proper behaviour within the establishment being within the establishment, after authorised hours of work without permission shouting slogans within the establishment etc. (4) All the workmen admitted the charges framed against them during the enquiries and hence the Management dismissed them from service based on these enquiries and taking into account their past services. (5) Since the workmen themselves have admitted the charges against, them. The Government considered that the charges have been proved. (6) The Government also considered the nature of proved charges and the quantum of punishment imposed on them with a view to decide the question whether the references should be made or not. (7) Considering the proved charges and the need to preserve industrial peace in the establishment the Government consider that this is not a fit case for adjudication both on expediency and on merits. No action is considered necessary in respect of the case of third Kondaiah who has settled his accounts finally with Management. " "the seven grounds given in support of the order refusing to make a reference have been chellenged by Mr. Ramamurthi as irrelevant. The facts that the Company manufactures and supplies certain items to the Defence Department of the Union of India and there was industrial unrest followed by violence and stoppage of work, according to learned counsel, are not germane and relevant for the purpose of deciding as to whether the dispute raised by the six workmen should be referred to industrial adjudication. So far as the third ground is concerned, according to Mr Ramamurthi, it is in effect repetition of the earlier grounds which this Court found to be irrelevant. The language has been charged and the grounds have been made descriptive and detailed. Coming to the 4th ground it is contended that all the 154 delinquent workmen had accepted their guilt when negotiation for a settlement was undertaken. There was no justification for the employer to discriminate between 134 workmen who were restored to service and the remaining 20 including the six appellants to whom relemploy-ment was not given. Mr. Ramamurthi states that ground No. 5 is totally irrelevant. Similarly grounds Nos. 6 and 7 are not at all material and do not justify the refusal to refer the dispute. In support of the appeal the learned counsel has further contended that in a series of decisions beginning with the case of Bombay Union of Journalists vs. State of Bombay (AIR 1964 SC 1617) this Court has clearly laid down that it is open to the State Government to take the broad features is to consideration while exercising jurisdiction under S. 10 (1) of the Act. If the dispute in question raised a question of law the appropriate Government should not purport to reach a final conclusion on the said question the said question of law because that would normally lie within the jurisdiction of the industrial Tribunal. Similarly, on disputed questions of fact, the appropriate Government cannot purport to reach final conclusion for that again would be the province of the Industrial Tribunal. ". . . . it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under S. 10 (1) read with the S. 12 (5) or not. If the claim made is patently frivolous, or is clearly belated, the appropriate Government may refuse to make a reference. Likewise, if the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse, the appropriate Government may take that into account in deciding whether a reference should be made or not. It must, therefore, be held that a prima facie examination of the merits cannot be said to be foreign to the enquiry which the appropriate Government is entitled to make in dealing with a dispute under S. 10 (1 ). . . . . . ". Mr. Ramamurthi also placed reliance on the decision in the case of M. P. Irrigation Karamchari Sangh v. State of M. P. (supra) where it has been said: "there, while conceding a very limited jurisdiction to the State Government to examine patent frivolousness of the demands, it is to be understood as a rule, that adjudication of demands made by workmen should be left to the Tribunal to decide. S. 10 permits appropriate Government to determine whether dispute 'exists or is apprehended' and then refer it for adjudication on merits. The demarcated functions are (1) reference, (2) adjudication. When a reference is rejected on the specious plea that the Government cannot bear the additional burden it constitutes adjudication and thereby usurpation of the power of a quasi judicial Tribunal by an administrative authority namely the appropriate Government. . . What the State Government has done in this case is not a prima facie examination of the merits of the question involved". "there may be exceptional cases in which the State Government may, on a proper examination of the demands are either perverse of frivolous and do not merit a reference. Government should be very slow to attempt an examination of the demand with a view to decling reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid disputes. To allow the Government to do so would be to render section 10 and section 12 (5) of the Industrial Dispute Act nugatory". Thus, it is now finally settled that the State Government cannot mechanically or by simply writing few facts reject the demand raised for making reference in the orders arising out of cases of dismissal, removal, retrenchment or otherwise termination from service and must record the findings with full reasons that the demand is perverse and frivolous or the dispute raises a claim which is very stale or which is opposed to the provisions of the Act, and, if the Government comes to the conclusion that the dispute suffers from infirmities of this character, it may refuse to make a reference. In refusing to make a reference the Government must not act in a punitive spirit, but consider the question fairly and reasonably and take into account only relevant facts and circumstances. In the instant case, the only reason given by the Government, for declining to make the reference is that the petitioner was awarded punishment of dismissal from the service after domestic inquiry in the matter of charges of misconduct. It may be stated that a dispute relating to dismissal ordinarily raises the following essential issues for adjudication by the Labour Court or Industrial Tribunal in the light of the changes effected in the law by Sec. 11-A, which was introduced in the Industrial Disputes Act by an amendment, which came into force on 15th December, 1971: (I) Whether a proper domestic inquiry was held, in which the charge of misconduct was properly proved. (II) Whether the punishment of dismissal was justified and in case the punishment is held to be not justified. (III) What would be the proper punishment ?
(3.) NOW, after the introduction of Section 11 A, the Industrial Tribunal has full power and jurisdiction to enquiry has been held and finding of misconduct recorded. The Tribunal is to satisfy itself whether the enquiry is fair and the evidence justifies the finding of misconduct. And even if the enquiry is held to be proper and the finding of misconduct is accepted, the Tribunal has also power and/or jurisdiction to consider whether the punishment requires modification. Further, neither the fact that no enquiry was held at all nor that the enquiry held is found to be defective, stands in the way of the employer to justify his action by adducing evidence before the Tribunal fort he first time. Thus, in view of the aforesaid powers of the Tribunal, any final opinion expressed by the Government regarding fairness of the enquiry, or in the matter of Quantum of punishment would amount to usurpation of powers of a quasi-judicial Tribunal by an administrative of authority. In this view of the matter, the order of refusal to make the reference passed by the Government cannot be justified as the State Government has not even prima facie examined the merits or the questions involved and in a cavalier manner, without applying mind to the relevant aspects, refused the reference. If the order of the government is tested in the light of the aforesaid decisions of the Supreme Court then we find that the order is not in accordance with law is absolutely lanconic. We find it to be a fit case where the impugned order should be set aside and the Government be directed to make a reference. ;