MOHANLAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner is aggrieved by the order of the State Government dated 19.7.1995 refusing to make the reference in respect of industrial dispute on the ground of delay. The power under Section 12(5) of the Industrial Disputes Act were exercised in this case. Section 12(5) of the Industrial Disputes Act reads as under: 12(5) If, on a consideration of the report referred to in Sub -section (4), the appropriate Government is satisfied that there is a case for reference to a Board (Labour Court, Tribunal or National Tribunal) it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefore. So far as the power under Section 12(5) of the I.D.Act is concerned, that could be exercised if the Govenment is satisfied that no industrial dispute exists or it is not expedient to make a reference. The discretion not to make the reference is to be exercised with caution. The Apex Court in the case of MP Irrigation Karmchari Sangh v. State of MP 1995(2) SCC -103 observed that - That may be exceptional cases in which the State Government may on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. Government should be very slow to attempt an examination of the demand with a view to decline reference and courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid disputes. To allow the Government to do so would be to render Section 10 and Section 12(5) of the Industrial Disputes Act nugatory. In Ram Avtar v. State of Haryana : (1985)IILLJ187SC , the Apex Court considered the decision in the case of State of Madras v. CP Sarathy : (1953)ILLJ174SC ), wherein it was observed that: But it must be remembered that in making a reference under Section 10(1) the Government is doing an administrative act and the fact that it has to forman opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character. The court cannot therefore canvass the order of reference closely to see if there was any material before the Government to support its conclusion, as if it was a judicial or quasi -judicial determination.

(2.) FROM various decisions which have been given by the Apex Court including above two decisions it is evident that the reasons have to be recorded for refusing the reference. The order which has been passed by the State Government is subject to judicial review. If merits are examined then the report under Section 12(4) has to be taken into consideration. The dispute arises in a case where the complaint is made by the workman after a long delay. Though, there is no period of limitation prescribed under the ID Act but the dispute must be raised within reasonable time This Court in the case of Bhuramal Rajmal Surana and Anr. v. Gyarsilal Sharma and Anr. S.B. Civil Writ Petition No. 33/86 decided on 24.11.1995 has held that even in the matter under Section 33C(2) of the ID Act the claim must be made within reasonable time. In respect of delay the Apex Court in the case of Bombay Union of Journalists v. State of Bombay : (1964)ILLJ351SC , held that: But it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under Section 10(1) read with Section 12(5), or not. If the claim made is patently frivolous, or is clearly belated, the appropriate Government may refuse to make a reference. Likewise, if impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse, the appropriate Government may take that into account in deciding whether a reference should be made or not. From the above, it is clear that the appropriate Government is not precluded in refusing to make a reference if the claim is patently belated. The decisions which have been reproduced above cast obligation on the part of the State Government to make reference and not to enter into the merits of the case which is the jurisdiction of the labour court/Industrial Tribunal. In the case of Hochilef Gammon v. State of Orissa (1975) II LLJ 418, Alagiriswami J, speaking for the court, said that: The executive have to reach their decisions by taking into account relevant considerations. They should no refuse to consider relevant matter nor should take into account wholly irrelevant or extraneous consideration. They should not misdirect themselves on a point of law. Only such a decision will be lawful. The Courts have power to see that the executive acted bonafide nor that they have bestowed pains taking consideration. They cannot avoid scrutiny by courts by falling to give reasons. If they give reasons and they are not good reasons, the Courts can direct them to reconsider the matter in the light of relevant matters, though the propriety adequacy or satisfactory character of those reasons may not be open to judicial scrutiny. Even if the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts. The order in the present case shows that refusal to make reference was on the ground of delay of more than 5 years. As observed in the case of Bombay Union Journalists (supra) the State Government has power to consideration the claim which is not belated. Following the said decision, I do not feel that it is a fit case for issuing mandamus to the appropriate Government to make reference. Learned Counsel for the petitioner has relied upon the decision in the case of Chanda Ram v. Union of India D.B. Special Appeal No. 210/1995 decided on 19.1.1996. Since the above decision of the Apex Court given in the case of Bombay Union of Journalists made specific observations regarding the power of the State Government to make reference or not, I feel that the petitioner has not been able to make out a case distinguishing the said judgment of the Apex Court.