K N VELLAYAN Vs. GOVERNMENT OF TAMIL NADU

JUDGEMENT

(1.) THESE four appeals arise out of a common judgment rendered by Ismail, J. , dismissing Writ Petitions Nos. 253, 360, 361 and 362 of 1974, wherein the petitioners sought writs of mandamus directing the Government of Tamil Nadu to refer certain disputes under Section 10 (1) of the Industrial Disputes Act. All the four appellants were employees of the second respondent which is the same in all the appeals. The appellants had been arrested in August, 1970 and detained in prison as they were involved in the land grab agitation organised by the Communist Party of India of Tamil Nadu. While they were in prison they had sent leave letters to the second respondent praying for leave till they were released and were in a position to report for duty. The second respondent did not grant the leave applied for by the appellants, but on 1st September, 1970, sent a communication to the appellants stating that in view of their absence, as per the relevant standing orders, they should be taken to have abandoned their employment. After their release, the appellants wanted to report for duty but the second respondent, hereinafter referred to as the management, did not allow them to join duty on the ground that they have already ceased to be in employment.

(2.) THE appellants thereafter filed petitions before the Industrial Tribunal, Madras, under Section 33a of the Industrial Disputes Act, since an industrial dispute concerning the management was then pending before it. The Industrial Tribunal, however, dismissed those petitions holding that it had no jurisdiction to entertain the same as there was no dismissal or discharge of the appellants by the management. Thereafter, the appellant sought to raise an industrial dispute as regards their non-employment and approached the Government for referring the matter for adjudication under Section 10 (1) of the said Act. The Government, by G. O. Rt. No. 1003, Labour and Employment Department dated 22nd May, 1973, declined to make a reference on the ground that the services of the appellants had been terminated in accordance with the standing orders of the management and that their petitions under Section 33a of the Act had been rejected by the Industrial Tribunal, Madras, on the basis that there was no dismissal or discharged and that, therefore, they did not consider it necessary to refer the issue in dispute for adjudication. Aggrieved against the said order of the Government the appellants filed the above writ petitions seeking writs of mandamus directing the first respondent to reconsider the question of making a reference of the dispute relating to the non-employment of the appellants.

(3.) ISMAIL, J. , had earlier, held in Writ Petition No. 1857 of 1967, after an elaborate consideration of the decisions of the Supreme Court in State of Bombay v. K. P. Krishnan 1960 II L. L. J. 592 : (1960) 19 F. J. R. 61, Bombay Union of Journalists v. State of Bombay 1964 I L. L. J. 351 : (1964) 26 F. J. R. 32 and the decision of Kailasam, J. (as he then was), in Coimbatore District Textile Mills Staff Union v. State of Madras (1967) 33 F. J. R. 474, that the High Court in exercising its jurisdiction under Article 226 of the Constitution of India, cannot sit in judgment over the order of the Government, as if it were a court of appeal, that it cannot go into the propriety or correctness of the reasons given by the Government for not making a reference, and that it will be justified in issuing a writ of mandamus only if it is satisfied that the action of the Government in not making a reference was not bonafide or that the Government have taken into account totally irrelevant and extraneous considerations. Subsequently, a Bench of this Court (consisting of Veeraswami, C. J. and Varadarajan, J.) in Coimbatore District Textile Mills Staff Union v. State of Madras Writ Appeal No. 307 of 1967, 1967 II L. L. J. 407; has also taken the same view.