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PETITIONER: RAM AVTAR SHARMA & ORS. ETC.

       Vs.

RESPONDENT: STATE OF HARYANA AND ANR. ETC.

DATE OF JUDGMENT11/04/1985

BENCH: DESAI, D.A. BENCH: DESAI, D.A. MISRA RANGNATH

CITATION:  1985 AIR  915            1985 SCR  (3) 686  1985 SCC  (3) 189        1985 SCALE  (1)713  CITATOR INFO :  F          1987 SC 695  (2,6)  F          1989 SC1565  (13,16)

ACT:      Constitution  of   India  Art  32  and  226-Refusal  by appropriate  Government   to  refer  industrial  dispute  to Industrial Tribunal  Labour Court u/s. 10 I.D. Act- Function of  Government  u/s.  10-Whether  administrative  or  Quasi- Judicial -When a writ of mandamus can be issued      Industrial Disputes Act 1947 s 10-Reference-Exercise of power by  Govt. to refer an industrial dispute to industrial Tribunal Labour  Court-Whether a  writ can be issued against refusal of Government to refer the dispute.      Administrative Law-Function of government- u\s 10 I Act to refer a dispute-Whether administrative or quasi-judicial

HEADNOTE:      In  all   the  writ  petitions,  the  petitioners  were dismissed from  service on the ground of misconduct after an enquiry held against each of them. They raised an industrial dispute contending  that the  orders imposing  punishment of removal  were   illegal  and   invalid.   The   conciliation proceedings also  failed. the State Government in W.Ps. Nos. 16226-29 of  1984 and  the Central  Government in  W.P.  No. 16418 of  1984 passed identical orders in each case refusing to make  a reference  to the  Tribunal  u/s.  10(1)  of  the Industrial Disputes Act 1917 holding that the punishment was imposed on the petitioners after an enquiry has been held in accordance with  the rules and that the removal from service is neither malafide nor unjustified and therefore it was not a fit  case  for  making  the  reference.  Hence  this  writ petitions.      Allowing the petitions, ^      HELD   I.(i) In  making  a  reference  u/s.  10(1)  the appropriate government  performs an  administrative act  and not a  judicial or  quasi-judicial act  and the fact that it has to  form an  opinion as  to the  factual existence of an industrial dispute  :15 a  preliminary step to the discharge of its function does not make it any the less administrative in character.  Assuming that  making or  refusing to  make a reference under  Sec. 10(1)  is a  quasi-judicial  function,

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there is 687 bound to  be a  conflict of jurisdiction if the reference is ultimately made.A  quasi-judicial function is to some extent an adjudicatory  function in  a list  between two contending parties. The  Government as  an umpire,  assuming that it is performing a  quasi-judicial function  when it  proceeds  to make  a  reference.  would  imply  that  the  quasi-judicial determination of  this prima facie shows that one who raised the dispute  has established  merits  of  the  dispute.  The inference necessarily  follows from  the assumption that the function performed  under Sec.  10(1)  is  a  quasi-judicial function. Now by exercising power under Sec. 10, a reference is made  to a  Tribunal for  adjudication and  the  Tribunal comes to  the conclusion  that there  was no  merit  in  the dispute, prima  facie a conflict of jurisdiction may emerge. Therefore, the  view that  while exercising power under sec. 10(I) the  function performed  by the appropriate Government is an  administrative function  and not a judicial or quasi- judicial function  is beyond the pale of controversy. [692F- H; 693A-C] C      State of  Madras v C.P. Sarathy & Anr [1953] S.C.R. 335 at 347  Western India  Match Co Ltd v Western India Match Co Workers Union  & Ors [1970] 2 SCR 370 and Sambu Nath Goyal v Bank of Baroda Jullundur [1978] 2 SCR 793 followed      (2) Every administrative determination must be based on grounds relevant  and germace  to the  exercise of power. If the administrative determination is based on the irrelevant, extraneous or  grounds not  germane to the exercise of power it is  liable to  be questioned  in exercise of the power of judicial review.  In such  a situation  the court  would  be justified in  issuing a  writ of mandamus even in respect of an administrative order. Maybe, the court may not issue writ of mandamus,  directing the  Government to  make a reference but the  court can  after examining the reasons given by the appropriate Government for refusing to make a reference come to a  conclusion that they are irrelevant. extraneous or not germane  to  the  determination  and  then  can  direct  the Government to reconsider the matter.                                               [693F-H; 694A]      (3) In  the instant  cases, the  workmen questioned the legality and  validity  of  the  enquiry  which  aspect  the Tribunal in  a quasi-judicial  determination was required to examine.A bare statement that a domestic enquiry was held in which charges  were held  to be  proved, if it is considered sufficient for  not exercising  power of  making a reference under  Sec.  10(1),  almost  all  cases  of  termination  of services cannot  go before the Tribunal. And it would render Sec. 2A  of the  Act denuded of all its content and meaning. The reasons  given by  the appropriate.  Government in  each case would  show that  the Government  examined the relevant papers of  enquiry and  the Government was satisfied that it was legally  valid an that there was sufficient and adequate evidence to hold the charges proved. It would further appear that the  appropriate Government  in each case was satisfied that the  enquiry was not biased against the workmen and the punishment  was   commensurate  with   the  gravity  of  the misconduct charged.  All these  relevant and  vital  aspects have  to  be  examined  by  the  Industrial  Tribunal  while adjudicating upon the reference made to it. 688 In other  words, the  reasons given  by (he Government would tantamount to  adjudication which  is impermissible. that is the function  of the  Tribunal  and  the  Government  cannot arrogate to  itself that  function. Therefore if the grounds

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on which or the reasons for which the Government declined to make a reference under Sec. 10 are irrelevant. extraneous or not germane  to the  determination, it  is well settled that the party  aggrieved thereby  would be  entitled to move the Court for  a writ  of mandamus.  Accordingly  all  the  writ petitions are  allowed directing  the appropriate government in each  case to  re. consider  its decision and to exercise power u/s.  10 on relevant and considerations germane to the decision.  In   other  words  a  clear  case  for  reference uss.10(1) in  each case  is made  out. [694G-H;695A-D; 695A; 696-AB]      State of  Bombay v K.P. Krishnan & Ors [1971] I SCR 227 at 243  and hay Union of Journalists & Ors v State of Bombay JUDGMENT:

&      ORIGINAL JURISDICTION:  Writ Petition  No. 16226-29 and of 1984.      Under Article 32 of the Constitution of India      A K. Goel for the Petitioners.      Harbans Lal Ashok Grover, O.P., Sharma, R.N. Poddar and C.V Subba Rao for the Respondents.      The Judgment of the Court was delivered by      DESAI, J.  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 Petition  Nos. 16256-29/84:  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 charge-sheet in identical terms to  all the four petitioners calling upon them to show cause within  48 hours of the receipt of the charge-sheet 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 689 against each  petitioner was  the one  set out  in  Standing Order 20  (X[V) 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 behavior 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 of  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  including 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,

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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 backwages  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 l, 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 690 the Canteen  Committee, to  enquire about the working of the Can teen.  On 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 misbehavior.  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  con-plaint  with  the third respondent,  Senior  Divisional  Mechanical  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   disciplinary  enquiry followed. Surprisingly  the enquiry  officer,  Senior  Local 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 Mechanical Engineer, the Uttar Railway Karamchari Union espoused the cause of the petitioner and  raised an industrial dispute contending that

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the order  imposing punishment  of removal  from service was illegal and invalid. Central Labour Commissioner pursuant to the application  from the  Union dated  may  29,  1982  held conciliation proceedings  in which  the respondents  did not participate. Consequently,  a failure  report was submitted. The appropriate Government being the Central 691 Government as  permits order  dated December,  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 workmen 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  the  management  in  imposing  the penalty of  removal from  service is  neither  malafide  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.      The neat and narrow question of law raised in these two writ  petitions   can  be  formulated  thus  y  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.      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 integra. In  State of  Madras v.  C.P. Sarathy  &  Anr.1)  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 can not, 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."      (1) [1953] S.C.R. 334 at 347. 692      Explaining the  ratio  of  the  decision  in  Sarathy’s case(1), in  Western India  Match Co.  Ltd. v. Western India March Co. Workers Union & Ors,(2) it was observed as under:           "In the  State of  Madras v. C.P. Sarathy(1)’ 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 ad  jurisdiction 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)

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    (1) After  referring to  the earlier  decisions on  the subject in  Shambhu Nath  Goel v.  Bank of Baroda, Jullundur (2) 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  the 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      The view  that while exercising power under Sec. 10(1), the  Government  performs  administrative  function  can  be supported by an alternative line of reasoning, Assuming that making or refusing to make a reference under Sec. 10(1) is a quasi judicial  function, there is bound to be a conflict of jurisdiction if  the reference  is ultimately  made.A quasi- judicial function is to some extent an adjudicatory function in a  list between  two contending parties The Government as an umpire, assuming that it is performing a quasi-      (1) [1970] 2 S.C.R. 370.      (2) [1978] 25 S.C.R. 793. 693 judicial function  when it  proceeds to  make  a  reference, would imply   that  the quasi-judicial  determination of lis prima facie  show  that  one  who  raised  the  dispute  has established merits of the dispute. The inference necessarily follows from  the assumption  that  the  function  performed under Sec.  11)(1) is  a  quasi-judicial  function.  Now  by exercising power  under Sec.  10, a  reference is  made to a Tribunal for  adjudication and  the Tribunal  comes  to  the conclusion that  there was  no merit  in the  dispute, Prima facie a  conflict of  jurisdiction may emerge. Therefore the view that  while  exercising  power  under  Sec.  10(1)  the function performed  by  the  appropriate  Government  is  an administrative function and not a judicial or quasi-judicial function is beyond the pale of controversy.      Now if  the Government  performs an  administrative act while either  making or  refusing to  make a reference under Sec. 10(1),  it cannot  delve into the merits of the dispute and take  upon itself  the determination  of its. That would certainly be  in excess  of the  power conferred by Sec. 10. Section  10   requires  the  appropriate  Government  to  be satisfied  that   an  industrial   dispute  exists   or   is apprehended. This  may permit  the appropriate Government to determine prima  facie whether  an industrial dispute exists or the  claim  is  frivolous  or  bogus  or  put  forth  for extraneous  and  irrelevant  reasons  not  for  justices  or industrial   peace   and   harmony.   Every   administrative determination must  be based on grounds relevant and germane to  the   exercise   of   power.   If   the   administrative determination is  based on  the  irrelevant,  extraneous  or grounds not germane to the exercise of power it is liable to be questioned  in exercise  of the power of judicial review. In State of Bombay v. K. P. Krishnan and Ors.(1) it was held that a  writ of mandamus would lie against the Government if the order  passed by it under Sec. 10(1) is based or induced by reasons  as  given  by  the  Government  are  extraneous, irrelevant and  not germane  to the determination. In Such a situation the  Court would be justified in issuing a writ of mandamus even  in respect of an administrative order. Maybe, the Court  may not  issue writ  of mandamus,  directing  the Government to  make a  reference but  the  Court  can  after examining the  reasons given  by the  appropriate Government

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for refusing to make a reference      [1961] 1 SCR 227 at 243. 694 come to a conclusion that they are irrelevant, extraneous or not germane  to the  determination and  then can  direct the Government to  reconsider the  matter. This  legal  position appears to be beyond the pale of controversy.      Accordingly, it  is necessary  to examine  the  reasons given  by   the  Government   to   ascertain   whether   the determination  of  the  Government  was  based  on  relevant considerations or  irrelevant, extraneous  or considerations not germane to the determination.      Re:  Writ   Petition  Nos.   16226-29/84:  The  reasons assigned by  the Government for refusing to make a reference are to  be called  out from  the letter  Annexure ’A‘  dated September 1,  1984 sent  by  the  Joint  Secretary,  Haryana Government, Labour  Department  to  the  petitioners  It  is stated in the letter that: "the Govt. does not consider your case to  be fit  for  reference  for  adjudication,  to  the Tribunal as  it has  been learnt  that  your  services  were terminated only  after charges  against you were proved in a domestic enquiry."  The assumption  underlying  the  reasons assigned  by   the  Government  are  that  the  enquiry  was consistent with  the rules  and the standing orders, that it was fair  and just and that there was unbiased determination and the  punishment was commensurate with the gravity of the misconduct.  The   last  aspect   has  assumed  considerable importance after  the introduction  of Section  11A  in  the Industrial disputes  Act by  Industrial Disputes (Amendment) Act, 1971  with effect  from December  15, 1971.  It confers power on  the Tribunal  not only  to examine  the  order  of discharge or  dismissal  on  merits  as  also  to  determine whether the  punishment was commensurate with the gravity of the misconduct  charged. In  other words,  Sec. 11A  confers power on  the Tribunal  Labour Court  to examine the case of the workmen  whose service  has been  terminated  either  by discharge or dismissal qualitatively in the matter of nature of enquiry  and quantitatively  in the matter of adequacy or otherwise of punishment. The workmen questioned the legality and validity  of the  enquiry which aspect the Tribunal in a quasi-judicial determination  was required  to examine  bare statement that a domes tic enquiry was held in which charges were held  to be  proved, if it is considered sufficient for not exercising power of making a reference under Sec. 10(1), almost all cases of termination of services cannot go before the Tribunal. And it would render Sec. 2A of 695 the Act  denuded of all its content and meaning. The reasons given by  the Government  would  show  that  the  Government examined the  relevant papers  of enquiry and the Government was satisfied  that it  was legally valid and that there was sufficient and adequate evidence to hold the charges proved. It would  further appear  that the  Government was satisfied that the  enquiry was not biased against the workmen and the punishment was  commensurate with  the  gravity  13  of  the misconduct charged.  All these  relevant and  vital  aspects have  to  be  examined  by  the  Industrial  Tribunal  while adjudicating upon  the reference made to it. In other words, the reasons  given by  the Government  would  tantamount  to adjudication which is impermissible. That is the function of the Tribunal  and the  Government cannot  arrogate to itself that function.  Therefore if  the grounds  on which  or  the reasons  for   which  the  Government  declined  to  make  a reference under  Sec. 10  are irrelevant,  extraneous or not germane to  the determination,  it is  well settled that the

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party aggrieved  there would  be entitled  to move the Court for a  writ of  mandamus. (See Bombay Union of Journalists & Ors. v.  The State  of Bombay  & Anr.(1) It is equally well- settled that  where the  Government purports to give reasons which tantamount  to adjudication  and  refuses  to  make  a reference, the  appropriate Government could be said to have acted on  extraneous,  irrelevant  grounds  or  grounds  not germane to  the determination  and a  writ of mandamus would lie calling  upon the Government to reconsider its decision. In this  case a  clear case for grant of writ of mandamus is made out.      Writ Petition  No. 16418/84: The appropriate Government being the Central Government in this case declined to make a reference as  per its  order dated December 9, 1983 in which it is  stated that ’the action of the management in imposing on the  workmen penalty of removal from service on the basis of an enquiry and in accordance with the procedure laid down in the Railway Servants (Discipline & Appeal) Rules, 1968 is neither malafide nor unjustified. The appropriate Government does not  consider it  necessary to refer the dispute to the industrial Tribunal  for adjudication.’  Ex facie  it  would appear  that   the  Government   acted  on   extraneous  and irrelevant considerations  and the  reasons here  in  before mentioned will  mutatis mutandis apply in respect of present order of  the Government  under challenge. Therefore for the same reasons, a writ of mandamus must be issued.      (1) [1964] 6 S.C.R. 22. 696      Accordingly all  the writ petitions are allowed and the rule is  made absolute  in each case. Let a writ of mandamus be issued  directing the appropriate Government in each case namely the  State of Haryana in the first mentioned group of petitions and  the Central Government in the second petition to reconsider  its decision and to exercise power under Sec. 10 on  relevant and  considerations germane to the decision. In other  words, a  clear case of reference under Sec. 10(1) in each case is made out. We order accordingly.      Respondent No.  2, Hyderabad  Asbestos Cement  Products Limited in  WP Nos.  16226-29 of  1984 shall  pay the  costs which is quantified at Rs. 2,000/- to the petitioners within four weeks from today. There will be no order as to costs in WP No. 16418/84. M.L.A.                                    petitions allowed. 697