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PETITIONER: SULTAN SINGH

       Vs.

RESPONDENT: STATE OF HARYANA & ANR.

DATE OF JUDGMENT12/12/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1996 AIR 1007            1996 SCC  (2)  66  JT 1995 (9)   556        1996 SCALE  (1)9

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Two questions  arise in this appeal, namely,(1) whether the State  should hear the respondent/employer before making a reference  on a  second representation under Section 10 of Industrial Disputes  Act, 1947  (for short, ‘the Act’) since it was  rejected on  an earlier  occasion; and  (2)  whether there is an order of reference by the State Government so as to entitle  the appellant to have the dispute adjudicated by the tribunal.      The facts  are not  in dispute.  Way back  in 1955, the appellant had joined the respondents as a workmen (Khalasi). He was  promoted on  September 6,  1972 as a tape-reader. He was served  with a  chargesheet on  June 28,  1979  and  his services were  terminated on  August 9,  1979. On  June  30, 1981, he  made  a  demand  on  the  respondent/employer  for reinstatement which  was rejected.  Thereafter, he  made  an application for reference under Section 10 of the Act to the State Government  which was  rejected by order dated October 20, 1981. The appellant again made a representation on March 25, 1982  and the Minister made a note on the representation directing  to   make  a   reference.   However,   since   no communication was  received by  the appellant,  he  wrote  a letter to  the Labour  Commissioner, Haryana,  on April  26, 1984 but  to no  avail. He  then filed the writ petition. By order dated  August 6,  1984 in  CWP No.  2885/84, the  High Court dismissed the writ petition.      The first  question is  whether the State should give a hearing to  the employer before making a reference on second application, since  on an earlier occasion, it was rejected. Section 10(1)  of the Act provides that where an appropriate Government is  of the  opinion that  any industrial  dispute exists or  is apprehended,  it may, at any time, by order in writing refer  the dispute  to  named  authorities.  Section 12(5)  of   the  Act   postulates  that   on   receipt   and consideration of  a report from the conciliation officer, if

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the Government  is  satisfied  that  there  is  a  case  for reference to  the Board,  Labour Court, Tribunal or National Tribunal, as  the case  may be,  it may make such reference. Where the  appropriate  Government  does  not  make  such  a reference it  shall record  reasons therefor and communicate to the parties concerned.      A conjoint  reading,  therefore,  would  yield  to  the conclusion that  on making  an application for reference, it would be  open to  the State  Government to  form an opinion whether industrial  dispute exists  or apprehended  and then either to make a reference to the appropriate authorities or refuse to make the reference. Only on rejection thereof, the order needs to be communicated to the applicant. Nonetheless the  order  is  only  an  administrative  order  and  not  a quasijudicial order.  When it rejects, it records reasons as indicated in  sub-section (5)  of Section 12 of the Act. The appropriate Government  is entitled  to go into the question whether an  industrial dispute  exists or is apprehended. It would be  only a subjective satisfaction on the basis of the material on  record. Being an administrative order no lis is involved. Thereby  there is  no need  to issue any notice to the employer  nor to  hear the   employer  before  making  a reference or  refusing to  make a reference. Sub-section (5) of Section  12 of  the Act  does not  enjoin the appropriate Government to  record reasons  for  making  reference  under Section 10(1).  It enjoins  to record  reasons only  when it refuses to make a reference.      The need  for hearing  is obviated, if it is considered on second  occasion as  even then  if it makes reference, it does not  cease to  be an administrative order and so is not incumbent  upon  the  State  Government  to  record  reasons therein. Therefore,  it is  not necessary to issue notice to the employer  nor to consider his objections not to hear him before making  a reference.  Accordingly, we are of the view that the  High Court was wholly wrong in its conclusion that before  making  reference  on  second  application,  it  was incumbent upon  the State  Government to  give notice to the employer and  to give  an opportunity  to the  employer  and record reasons  for making  reference. The previous decision of that  Court relied  on in  the case  at hand  was wrongly decided.      The second  question is  whether, as  a fact, reference has been  ordered by  the Government. It is seen that on the earlier occasion  admittedly reference  was rejected  on the ground that  the appellant  had settled  the matter with the employer. In  the second  application, the  Minister made  a note directing  reference, but  in  the  order  communicated later to  the appellant  by the  Labour Department,  it  was indicated that  in view  of the  decision already taken, the Government did  not consider  it necessary to reconsider the decision already  taken. In  other words,  they were  of the opinion that  there  existed  no  industrial  dispute.  They declined to  make reference  under Section 10(1). Therefore, there is  no reference,  in fact,  made to  the  appropriate Tribunal/Labour Court or Industrial Tribunal.      In these  circumstances, we  cannot give  relief to the appellant,  since   there  is   no  reference  made  by  the Government. The appeal is disposed of accordingly. No costs.