M. PRAKASHAM Vs. GOVT. OF INDIA

JUDGEMENT

(1.) IN this application under Art. 226 of the Constitution of India a writ of mandamus was sought against the Government of India represented by its under Secretary, Ministry of Labour, New Delhi directing them to refer the dispute to an Industrial Tribunal for adjudication. The petitioner is an employee of the 2nd respondent Unit Nuclear Fuel Complex, ECIL P.O. Moulali, Hyderabad. The petitioner joined the service of the 2nd respondent -unit as a Trades man 'B'. On 4 -1 -77 he was suspended under standing orders 41.3 (i) and after making an enquiry about the misconduct of slapping of a canteen supervisor he was removed from service and in the appeal the order was confirmed. Thereafter the petitioner sought relief before the Assistant Commissioner of Hyderabad (Central) Hyderabad under sec. 2 -A of the Industrial Disputes Act 14 of 1947. The 1st respondent also participated in the conciliation proceedings and as the conciliation proceedings failed the Assistant Commissioner submitted a report to the 1st respondent on 26 -12 -1980 whereupon the impugned order was passed by the 1st respondent refusing to refer the dispute for adjudication, as per the order dated 8 -6 -1981. It is necessary to extract the order in full which is in the following terms:

(2.) NOW the question in this writ petition is whether the 1st respondent exercised the statutory discretion vested in it under sec. 10 read with sec. 12(5) of the Act. It is fairly settled as per the earliest judgment of the Supreme Court in Madras State vs. C.P. Sarathy : AIR 1953 SC 53 that in making a reference under sec. 10(1) of the Act the Government is doing an administrative Act, and the factual existence of the dispute and the expediency of making a reference in the circumstances of a particular case are entirely for the Government to decide upon. However once the function is statutory it cannot be an absolute discretion. The question is whether the discretion is wide or narrow. The discretion under sec. 10(1) besides being statutory is intended for the benefit and hence courts have laid down the tests to find out whether the discretion was exercised properly or not. It was ruled in State of Bombay vs. KP Krishnan : AIR 1960 SC 1223 that while exercising the administrative function under sec. 10(1) the Government cannot rely upon irrelevant and extraneous considerations or exclude the relevant considerations and they should not act in a punitive spirit but must consider the question fairly and reasonably. Accordingly a writ of mandamus was issued when the claim for bonus was refused on the ground that workmen resorted to go slow during the year 1952 -53 holding that the Government must reconsider the request for reference as the said ground was wholly Irrelevant and extraneous. This view was affirmed subsequently. In Bombay Unions of Journalists vs. State of Bombay : AIR 1964 SC 1617 it was ruled that the Government can consider prima facie the merits of dispute and take into account other relevant considerations though it should not purport to reach a final decision either on question of law or on question of fact. It may examine the impact of the claim on the general relations between employer and employee and may refuse to make reference if the claim is patently frivolous or clearly belated. Similarly in Hochtief Gammon vs. State of Orissa : AIR 1975 SC 2226 when the Government refused to amend a reference by making a necessary person as a party to the reference a writ of mandamus was issued directing them to reconsider the matter and take a fresh decision. The dicta of Alagiriswami, J. may be usefully noted.

(3.) IT is true that under sec. 10(1) of the Act the Government is the sole judge of the factual existence of a dispute and the expediency to refer the dispute but the said statutory discretion under sec. 10(1) read with Sec. 12(5). When sec. 2 -A is attracted is narrow as the discretion besides being statutory, is intended for the benefit of individual workman and that such discretion must be exercised by assigning reasons when they refuse to make a reference. Further (1) it should not take into account extraneous or irrelevant considerations which are not germane but shall not exclude relevant considerations; (2) It should not act punitively but it must act honestly and exclude any ground of mala fide; (3) It should not finally decide any disputed question of fact or question of law but must find out only the prima facie merits of the dispute (4) The refusal must be based on cogent and justifiable reasons but not fanciful, unjust or frivolous or in total disregard of the provisions of the Act. Applying these tests I am clearly of the opinion that the order of the Government is vitiated by two grounds firstly it finally decided holding that the charges are proved. Such mode of adjudication is not the determination of the prima facie merits of the dispute. Secondly it overlooked the impact of sec. 11 -A where under the Tribunal under the Act is entitled to give relief if the punishment is shown to be excessive even assuming the charges are proved. In view of the fact that the impugned order dated 8 -6 -1981 is vitiated by these two reasons quash the same and direct the 1st respondent to dispose of the matter afresh on a consideration of the relevant factors in the light of the observations made above and determine whether the dispute is a fit one for reference to the Industrial Tribunal for adjudication or not. A writ will issue accordingly. There will be no order as to costs. Advocate's fee Rs. 150/ -.