SANDHU C S Vs. STATE OF PUNJAB

JUDGEMENT

(1.) NOTICE of Motion Bench was issued in this case by a Division Bench of this Court on the basis of the contention of the learned counsel for the petitioner that the reference has been declined by the Government by deciding the dispute on merits. The writ petition is contested on behalf of Respondent No. 2 and reply has been filed by Respondent No. 2.

(2.) BRIEFLY stated the facts are that the petitioner was employed as Operator by Respondent No. 2 in the year 1985. He was granted annual increments from time to time by Respondent No. 2 and was promoted to the post of Senior Operator in the pay scale of Rs. 42515-705 at the basic pay of Rs. 440/- per month with effect from March 1, 1987. He was further given the revised pay scale and his basic pay was the petitioner was ultimately fixed at Rs. 850/- per month with effect from August 1, 1989 in pursuance of a settlement reached between the parties. This factual position is admitted by both the parties. The petitioner has stated that he was suffering from pain in the left side of leg and back because of some disorder in spine and was on leave with effect from May 27, 1991 onwards and applied for leave duly supported with medical certificate to Respondent No. 2 in time and also informed this factual position vide application dated September 24, 1991 to Respondent No. 2. A copy of the said application is appended as Annexure P-1 with the writ petition. It is then stated in the petition that inspite of this illness, Respondent No. 2 treated the petitioner absent from duty and issued Show Cause Notice to the petitioner to join duty on September 7, 1991 and it was made clear therein that in case the petitioner failed to join duty, it would tantamount to abandonment of the job. The petitioner was not medically fit to join duty and was under the treatment of the doctors of General Hospital, Sector 16 Chandigarh /other doctors and as per the advice of the doctors, it was not possible for the petitioner to join duty and this fact, was brought to the notice of Respondent No. 2, but without considering this fact, his services were terminated illegally and even an enquiry was not held before effecting termination. It is further stated in the petition that since Respondent No. 2 illegally terminated his services, he raised a dispute with the Management through Demand Notice dated September 19, 1992 which was sent to the Assistant Labour Commissioner, Punjab, Mohali on September 26, 1992. The matter was taken up by the Assistant Labour Commissioner for reconciliation and Respondent No. 2 while filing reply, admitted the fact that the petitioner was absent from duty and his services had been terminated without holding enquiry. The Assistant Labour Commissioner sent failure conciliation report to Respondent No. 1 who vide order dated May 12, 1993 refused to refer the industrial dispute to the competent Court of law for adjudication. A copy of this letter is annexed as Annexure P-9 with the writ petition. The petitioner again filed a representation to Respondent No. 1 vide letter dated December 13, 1993 for re-consideration of his case for referring the dispute to the competent Court of law for his illegal termination, but the same was also rejected by Respondent No. 2 without reconsidering his case.

(3.) THE petitioner has challenged the order/ letter dated May 12, 1993 (Annexure P-9) vide which the demand of the petitioner to refer his case for adjudication to the concerned authority was rejected by Respondent No. 1. The learned counsel for the petitioner argues that while exercising powers under Section 10 of the Industrial Disputes Act, 1947, it is not open to the Government to dwell upon the merits of the dispute and decide on the legality or otherwise of the action taken/order passed by the employer. The power vesting in the Government to make or not to make a reference is administrative in character and, therefore, it is not within the competence of the Government to make adjudication of the dispute between the parties, argues the counsel. It is then submitted by the learned counsel that only thing which could be looked into by the Government while taking decision on the report submitted by the Conciliation Officer is as to whether there exists an industrial dispute or there is a reasonable apprehension of the industrial dispute.