MERCANTILE EMPLOYEES ASSOCIATION Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is a registered trade union representing the staff members of the Common wealth Trust (India) Limited, Calicut. The challenge in the Original Petition is against Ext. P1 order whereby the first respondent, the State, under S.12(5) of the Industrial Disputes Act declined to refer the dispute raised by the petitioner for adjudication. The dispute was regarding the withholding of increment of certain employee. The Government did not consider it expedient to refer the issue for adjudication after going into the merits of the case. According to the petitioner Ext. P1 is vitiated by illegality in that the decision was arrived at on irrelevant considerations. When a dispute exists the only consideration should have been whether it was expedient in the circumstance of the case to refer that dispute and it is for the Tribunal or Labour Court to adjudicate upon the claim.

(2.) The State has filed a counter affidavit refuting the grounds taken up.

(3.) It is open to the Government to consider the case for the purpose of determining whether it is expedient to refer the dispute for adjudication But the decision has necessarily to be arrived at on relevant considerations without expressing itself on the merits of the case. The decision of the Supreme Court in Workmen of Syndicate Bank v. Government of India & another, 1985 (1) LLJ 93 would squarely apply to the facts of the present case. There the court pointed out that it would not be right for the Government of India to refuse to make the reference on the ground that the charges of misconduct against the worker were proved during a duly constituted departmental inquiry and penalty was imposed on the worker after following the required procedure. The Supreme Court stated that if such a ground were permissible it would be the easiest thing for the management to avoid a reference to adjudication and to deprive the worker of the opportunity of having the dispute referred for adjudication even if the order holding the charges of misconduct proved was unreasonable or perverse or was actuated by malafides or even if the penalty imposed on the worker was totally disproportionate to the offence said to have been proved. The Court also said that the management has simply to show that it has held a proper inquiry after complying with the requisite procedure and that would be enough to defeat the workers' claim for adjudication. Such a situation cannot be countenanced by law. In this view the order was set aside and the Government was directed to reconsider the question of making reference of the industrial dispute for adjudication without taking into account the irrelevant ground which seems to have prevailed with them in declining to make the reference in the first instance. The Supreme Court had again pointed out in M. P. Irrigation Karmachari Sangh v. State of MP. 1985 (2) SCC 103 that the Government should be very slow to attempt an examination of the demand with a view to decline 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 S.10 and 12(5) of the Industrial Disputes Act nugatory.