Punjab-Haryana High Court
Vijay Singh vs State Of Haryana And Anr. on 31 January, 2005
Equivalent citations: (2005)IILLJ961P&H, (2005)140PLR101
Author: Satish Kumar Mittal
Bench: N.K. Sud, Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. The workman-petitioner has filed the instant writ petition challenging order dated 3.10.2003 passed by respondent No. 1 vide which his demand for referring the dispute to the Labour Court for adjudication has been declined while recording the following reasons:-
"You are informed that the Government does not consider your case fit for being seat for adjudication to the Labour Court because on enquiry it has been found that there are allegations against you that you have embezzled money of the Samiti and have obtained service of Salesman on the basis of Matric qualification. You have not produced any certificate regarding Matric qualification and you did not deposit the money obtained by selling medicine and fertilizer. Therefore, in view of the above facts your case is rejected."
2. The petitioner has challenged the aforementioned order of the State Government mainly on the ground that while exercising power under Section 10 of the Act, it could not have adjudicated on the merits of the dispute and declined reference on the ground that the allegation against the workman for embezzlement was found to be correct. The respondent State has not filed any written statement to contest the writ petition.
3. We have heard the counsel for the parties.
4. The question whether in exercise of the power vested in the State Government under Section 10 of the Act the appropriate government can adjudicate on the merits of the dispute is no longer res integra. In Ram Avtar Sharma and Ors. v. State of Haryana AIR 1985 SC 915, where the Government of Haryana declined to refer the matter by observing that it does not consider the case of the workman to be fit for reference to the Tribunal because his services were terminated in the backdrop of the finding of guilt recorded in the domestic enquiry. The Hon'ble Supreme Court while setting aside the order of the Government observed as under:-
"The assumption underlying the reasons assigned by the Government is that the enquiry was consistent with the rules and the standing orders that it was fair and just and that there was unbiased determination and the punishment was commensurate with the gravity of the misconduct. The last aspect has assumed considerable importance after the introduction of Section 11A in the Industrial Disputes (Amendment) Act, 1971 with effect from December 15, 1971. It confers power on the Tribunal not only to examine the order of discharge or dismissal on merits as also to determine whether the punishment was commensurate with the gravity of the misconduct charged. In other words, Section 11A confers power on the Tribunal/Labour Court to examine the case of the workman whose service has been terminated either by discharge or dismissal qualitatively in the matter of nature of enquiry and quantitatively in the matter of adequacy or otherwise of punishment. The workmen questioned the legality and validity of the enquiry which aspect the Tribunal in a quasi-judicial determination was required to examine. A bare statement that a domestic enquiry was held in which charges were held to be proved, if it is considered sufficient for not exercising power of making a reference under Section 10(1), almost all cases of termination of services cannot go before the Tribunal, and it would render Section 2A of the Act denuded of all its contents and meaning. The reasons given by the Government would show that the Government examined the relevant papers of enquiry and the Government was satisfied that it was legally valid and that there was sufficient and adequate evidence to hold the charges proved. It would further appear that the Government was satisfied that the enquiry was not biased against the workmen and the punishment was commensurate with the gravity of the misconduct charged. All these relevant and vital aspects have to be examined by the Industrial Tribunal while adjudicating upon the reference made to it. In other words, the reasons given by the Government would tantamount to adjudication which is impermissible. That is the function of the Tribunal and the Government cannot arrogate to itself that function. Therefore, if the grounds on which or the reasons for which the Government declined to make a reference under Section 10 are irrelevant extraneous or not germane to the determination it is well settled that the party aggrieved thereby would be entitled to move the Court for a writ of mandamus."
5. Similarly in Talor Convey Drier Mazdoor Sangh and Anr. v. State of Bihar and Ors., A.I.R. 1989 S.C. 1565, the Apex Court held as under:-
"The formation of an opinion as to whether an industrial dispute exists or is apprehended is not the same thing as to adjudicate the dispute itself on its merits....... The order of the Government refusing to refer the dispute on the ground that the persons raising the dispute are not the workmen would amount to adjudication of the dispute and such an order of the Government is liable to be set aside."
6. The Full Bench of this Court in Radhey Shyam and Anr. v. State of Haryana and Anr., (1998-2)119 P.L.R. 1, has laid down the following propositions in this regard:-
"(1) The appropriate Government can go into the merits of the dispute prima facie for the purpose of finding out whether an industrial dispute exists or is apprehended and whether the Government should make a reference or not.
(2) But in doing so, the appropriate Government cannot delve into the merits of the dispute and take upon itself the determination of the lis.
(3) If the claim is patently frivolous and vexation the appropriate Government may refuse to make the reference.
(4) In deciding whether to make a reference or not the Government may take into consideration whether the impact of the claim on the generation relation between the employer and the employees in the region is likely to be adverse disturbing industrial harmony understood in its larger sense.
(5) While the appropriate Government can examine the patent frivolousness the demands, it shall not itself adjudicate on the demands made by the workman, which should be left to the Labour Court/Tribunal concerned. The Government should be very slow to attempt an examination of the demand with a view to decline the reference."
7. In the light of the aforesaid legal position, the impugned order passed by the State Government is not sustainable. The State Government has declined the reference on the ground that it does not deem it fit to refer the matter to Labour Court because on enquiry, it has been found that there are allegations against the workman that he had embezzled the money of the Samiti and obtained service of Salesman on the basis of a false Matriculate certificate. These disputed questions of facts are to be decided/adjudicated upon by the Labour Court on reference by leading evidence by both the parties and providing opportunity of hearing. State Government in exercise of its powers under Section 10 of the Act, has no jurisdiction to determine these disputed questions of facts. The State Government can decline the reference only on the ground that the dispute sought to be raised is frivolous or vexations or that the dispute sought to be raised, if referred for adjudication, will have grave adverse consequences on the entire industry in the region. These are not the facts of the case in hand. Therefore, we find that the impugned order passed by the State Government is not sustainable.
8. For the reasons stated above, the writ petition is allowed. The decision of the State Government declining reference of the dispute raised by the petitioner to the Labour Court for adjudication is hereby quashed and a writ of mandamus is issued to it to refer the dispute raised by the petitioner to an appropriate authority constituted under the Act. The needful be done within a period of two months from the date of presentation of certified copy of this order.