STATE OF TAMIL NADU Vs. K SUBRAMANIAN

JUDGEMENT

(1.) The State has preferred this appeal against the order of Ramaswami, J. in Writ Petition No. 386 of 1977 setting aside an order of the Government in G.O.Rt. No. 1194, Labour and Employment Department dated 1st June, 1976 and remitting the matter for fresh disposal in accordance with law. Pursuant to domestic enquiry held by the second respondent against its employee, the first respondent, with reference to charges of creation of bogus records and other irregularities, the second respondent dismissed the first respondent from service by its order dated 28th February, 1974. The first respondent sought to raise an industrial dispute. Conciliation proceedings were held by the second appellant but as they did not fructify, he sent a failure report. Thereupon the first appellant declined to refer the dispute for adjudication by the Labour Court. The impugned G.O. whereunder the order of the Government was made was in the following terms :

(2.) Aggrieved by the order of the Government, the first respondent filed Writ Petition No. 386 of 1977 and sought a writ of certiorari to quash the order passed by the Government. Ramaswami, J. allowed the writ petition on the ground that after the introduction of section11-A in the Industrial Disputes Act, 1947, (hereinafter referred to as the Act), the Government is bound to apply its mind before ordering or declining to make a reference about the adequacy or otherwise of the punishment, but since the Government had failed to apply its mind to that aspect of the matter while passing the impugned order, the order suffered from non-application of mind by the Government and hence the order had to be quashed and the matter remitted to Government for fresh consideration. It is to challenge the correctness of this view of the learned single Judge, the State has preferred this appeal.

(3.) Mr. Chinnaswami, learned Additional Government Pleader, submitted that the order of the learned single Judge is not sustainable on account of several factors viz., 1. The discretion vested in the Government under sections 10(1) and 12(5) of the Act is not trammelled in any manner by section 11-A. Only if the Government is of opinion that any industrial dispute exists or is apprehended or if the Government is satisfied that there is a case for reference to a Board, Labour Court, Tribunal or National Tribunal, it may make a reference and the discretionary power of Government to make reference or not under these sections has not been reduced or affected in any manner by the introduction of section 11-A(2). The object of enacting section11-A in the Act is to confer wider powers to a Labour Court, Tribunal or National Tribunal, as the case may be, and the additional powers exercisable by the Labour Court under section 11-A will be available only in respect of those workmen whose cases are referred for adjudication to the Labour Court, Tribunal or National Tribunal. Section 11-A will not therefore entitle every workman dismissed or discharged from service from seeking as of right a reference of his case for adjudication by a Labour Court, Tribunal etc. (3) If a different construction, than the one set out above, is to be placed on section 11-A then it would mean that whenever a workman is dismissed or removed from service, the Government must necessarily make a reference of the dispute for adjudication and the resultant reduction of the discretionary power of the Government would run counter to the terms of sections 10(1) and 12(5) of the Act. (4). The learned single Judge has committed an error in holding that the Government had not applied its mind to the question of punishment being commensurate to the charges proved.