V VEERARAJAN AND ORS Vs. GOVERNMENT OF TAMIL NADU REPTD BY THE SECRETARY TO GOVERNMENT, LABOUR AND EMPLOYMENT DEPT AND ORS

JUDGEMENT

(1.) The appellants are seven workmen whose services were terminated by the 3rd respondent, the Management of Lucas TVS Limited. In respect of such a dispute between the appellants on the one hand and the 3rd respondent on the other as regards the non-emplpyment of the appellants, conciliation proceeding was held by the Labour Officer, Chingleput, and the said Officer submitted his failure report on 19.7.1979. However, the 1st respondent declined to refer the said dispute for adjudication, vide G.O.Ms.No. 1650 dt. 11.10.1979. Aggrieved against such refusal by the Government to refer the "industrial dispute for adjudication", the appellants came forward with W.P.No. 350 of 1982 for the issue of a proper writ, order or direction, as the case may be, in particular, for the issue of a writ in the nature of mandamus directing the 1st respondent (Government of Tamil Nadu) to reconsider their order dt. 11.10.1979 (referred to supra) and as confirmed by the further order dt. 1.6.1981. The said matter came up for admission before Mr. Justice Nainar Sundaram. But the learned Judge dismissed the writ petition in limine. Hence this appeal.

(2.) before we refer to the contentions put forward on behalf of the workmen, it is essential to notice the grounds urged by them before the learned Judge. They can be gathered from the order appealed against. The first ground is that Section 10(1) of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") lacks guidelines with reference to the exercise of the powers conferred on the appropriate government. The second ground is that when the order is passed under Section 10(1) of the Act which involves grave consequences, the appellants ought to have been heard by the Government before the order is made in conformity with the principles of natural justice and as such procedure was not adhered to, the order should be held to be illegal and has to be set aside. The last ground is that the third respondent had acted discriminatorily against the appellants alone because when other workers who were also proceeded against by the Management in the departmental enquiry and were found guilty were reinstated the appellants alone were singled out and their services were terminated and that this vital aspect does not appear to have been noticed and considered by the Government.

(3.) Before us, additional points were also urged. The foremost point is that after the inclusion of Section 2(A) and Section 11(A) in the Act, there is no discretion vested in the government but to refer the industrial dispute for adjudication. In other words, according to the learned Counsel for the appellants, the word 'may' in Section 10(1) of the Act has to be read as 'shall' in a case where the services of the workmen are terminated or retrenched or discharged. The learned Counsel further pointed out the purpose of widening the jurisdiction of the Tribunal under Section 11(A) is a clear pointer to the fact that the government has no discretion but to refer the matter for adjudication. His further contention is that though there was no amendment as such to Section 10, yet the existence of these two provisions, namely, Section 2(A) and Section 11(A) which are intended to protect the interest of the workmen had really usurped the discretion that was vested with the government under Section 10. The learned Counsel further pointed out that the question whether the punishment of termination is disproportionate to the charges is not within the jurisdiction of the government but is within the exclusive domain of the Tribunal and that this will also suggest that in a case of termination governed by Sections 2(A) and 11(A), the government 'shall' refer the dispute for adjudication.