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PETITIONER: PREM KAKAR

       Vs.

RESPONDENT: STATE OF HARYANA AND ANR.

DATE OF JUDGMENT05/04/1976

BENCH: RAY, A.N. (CJ) BENCH: RAY, A.N. (CJ) SINGH, JASWANT

CITATION:  1976 AIR 1474            1976 SCR  (3)1010  1976 SCC  (3) 433

ACT:      Writ of  Mandamus-Whether Rule  Nisi can  be issued  to compel the  State to  make a  reference  U/s  10(1)  of  the Industrial  Disputes   Act-Art  226   if  the  Constitution- lndustrial Disputes Act,ss 5. 10(1) and 12(5)-Scope of.

HEADNOTE:      Under section  12(5) read  with 10(1) of the Industrial Disputes Act,  if on  consideration of  a failure report u/s 12(4)  from   the  conciliation   officer,  the  appropriate Government is  satisfied and  is of opinion that there is an industrial dispute  and a  case for  reference, it  may make such reference to the labour court.      On   considering   the   "failure   report",   of   the conciliation proceedings  in respect  of the  appellant,  an Electrical foreman,  the respondent  state informed him that his duties  being supervisory with wages more than Rs. 500/- his case  was not  covered by  the definition  of the  terms "workman" under  the Industrial  Disputes Act and therefore, not a  fit case for adjudication. The appellant assailed the said orders under Art.226, which was dismissed.      On appeal by special leave the appellant contended that the question  whether an  employee is a workman or not was a disputed question  of fact and law and, therefore could only be decided by a labour court and on a reference only but not by the  State Government  while exercising  its  powers  u/s 12(5).      Dismissing the appeal, the Court ^      HELD: (1)  The order  of the Government acting under s. 10(1) read with section 12(5) of the Industrial Disputes Act passed after  subjective satisfaction  is an  administrative order and not a judicial or a quasi-judicial one. [1012A]      Sate of Madras v. C. P. Sararthy, [1953] S.C.R. 334 and State of Bombay v. K. P. Krishnan & ors. [1961] 1 S.C.R. 227 [followed].      (ii) In  entertaining an  application  for  a  writ  of mandamus against an order made by the appropriate Government under section  10(I) read with s. 12(S) of the Act the court does not sit in appeal over the order and is not entitled to consider the  propriety or the satisfactory character of the reasons. If  it appears  from the  reasons  given  that  the

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appropriate Government  took into  account any consideration irrelevant or  foreign, then  the court  may in a given case consider the case for a writ of mandamus. [1012-A-C]      Bombay Union of Journalists  ors v. The State of Bombay JUDGMENT:

&      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 119 of 1975.      Appeal by  Special leave  from the  Judgement and order dated 15-4-1974  of the  Punjab and  Haryana High  Court  in Civil Writ Petition No. 4289 of 1973.      N. N. Goswami and Arvind Minocha for the Appellant.      G.B. Pai,  S. R.  Agarwal, Parveen  Kumar and Khaitan & Co. for Respondent No. 2. 1011      The Judgment of the Court was delivered by      RAY, C.J.-This  appeal by  special leave  turns on  the question whether  the State  can  be  asked  by  a  writ  of mandamus to  make a  reference under  section 10(1)  of  the Industrial Disputes  Act (hereinafter  referred  to  as  the Act).      The appellant  was employed  by the  respondent company Hindustan Dowidat  Tools Ltd.  The services of the appellant were  terminated  on  4th  September,  1972.  The  appellant thereafter demanded  reinstatement. The Conciliation officer started conciliation  proceedings under  section 12  of  the Act. No  settlement could  be arrived  at. The  Conciliation officer sent  a report to the State Government under section 12(4) of  the Act.  The State  Government by  letter dated 7 June, 1973  informed the  appellant that  the Government had considered the appellant’s case not fit for reference to the Labour Court for adjudication.      The Government in the letter stated as follows:           "The Government  have not  found your case fit for      adjudication to a Labour Court because you were working      as an  Electrical Foreman  in this concern, which was a      supervisory job and your wages were more than Rs. 500/-      per month.  Therefore, your  case is not covered by the      definition  of   the  terms   "Workman"  given  in  the      Industrial Disputes Act."      The appellant  under Article  226 of  the  Constitution applied for a writ of mandamus directing the State to make a reference. The High Court dismissed the application.      The appellant  contended that  the question whether the appellant was  a workman was a disputed question of fact and law which  could be  decided only  by an  appropriate Labour Court. The  appellant also  submitted that if the dispute in question raises  questions of law the appropriate Government should not  give a final decision on the question. In short, the appellant’s  contention is  that the  issue whether  the appellant is  a workman  or not could only be decided by the Labour Court  and, therefore,  reference  should  have  been made.      Under Section  10 of  the  Act  where  the  appropriate Government is  of opinion that any industrial dispute exists or is  apprehended, it  may at  any time  refer the dispute, inter alia, to a National Tribunal for adjudication.      Section 12 of the Act deals with duties of Conciliation officers. If  the Conciliation  officer cannot  arrive at  a settlement  of   the  dispute  he  sends  a  report  to  the appropriate Government.  Under section  12(S) of the Act if, on a  consideration of the report referred to in sub-section

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(4), the appropriate Government is satisfied that there is a case for  reference, it  may make  such reference. Where the appropriate Government  does not  make such  a reference  it shall record  and communicate  to the  parties concerned its reasons therefor. 1012      This Court in State of Madras v. C.P. Sarathy and State of Bombay v. K.P. Krishnan & ors. held that the order of the Government acting  under section  10(1)  read  with  section 12(5) of  the Act  is an  administrative  order  and  not  a judicial or a quasi-judicial one.      In Bombay  Union of  Journalists & ors. v. The State of Bombay and  Anr. this  Court said  that in  entertaining  an application for  a writ of mandamus against an order made by the appropriate  Government under  section 10(1)  read  with section 12(5)  of the  Act the  Court does not sit in appeal over the order and is not entitled to consider the propriety or the  satisfactory character  of the  reasons given by the Government. If  it appears  that the reasons given show that the   appropriate   Government   took   into   account   any consideration irrelevant or foreign, then the Court may in a given case consider the case on a writ of mandamus.      In K.P.  Krishnan’s case  (supra) the issues in dispute related to a claim of classification for specified employees and additional  bonus and  the  sole  ground  on  which  the Government refused  to refer  the dispute  for  adjudication under section  12(5) of  the Act  was that the employees had adopted go-slow  tactics during the relevant year. The facts were that  the company  had  nevertheless  voluntarily  paid three months’  bonus for  that year  and the  report of  the Conciliation officer  was in  favour of  the employees. This Court  held   that  the   Government  acted   on  irrelevant considerations and issued a writ of mandamus.      In the  present case,  the fact  is that the Government found that  the appellant  was  not  a  workman  within  the definition of workman in the Act, and, therefore, it was not a fit case for reference for adjudication.      The High  Court rightly  rejected the  application. The appeal is,  therefore, dismissed.  Parties will pay and bear their own costs. S.R.      Appeal dismissed. 1013