Bombay High Court
Automobile Corporation Of Goa Ltd. vs State Of Goa And Ors. on 28 August, 1991
Equivalent citations: (1995)IIILLJ433BOM
JUDGMENT K. Sukumaran, J.
1. By order dated 28th June, 1991, the Government of Goa exercising powers under Section 10(1)(d) of the Industrial Disputes Act, 1947, made a reference to the Industrial Tribunal, Goa, Daman and Diu at Panaji, Goa, as indicated in the Schedule thereto. Essentially, it was in relation to the action of the Government in terminating the services of 16 workmen mentioned in the order.
2. The management-petitioner has impugned the order of reference on various grounds. The first and prominent contention was that the Government was denuded of the powers of referring a dispute in the backdrop of antecedent facts and events. It was submitted that there were demands made by the workmen, which enveloped a demand in relation to the action taken against the workmen and that a settlement as evi-
denced by Annexure P-5 had been reached. That apparently was not the end of industrial confrontation in the establishment. A fresh charter of demands had been submitted on 17th October, 1987, by the ACGL Workers' Union. This too led to a settlement (Exhibit P-10) dated 28 March, 1988, Clause 3 thereof referred to the fact that in view of the foregoing clauses of the settlement, the other demands, raised by the Union were "treated to be fully settled."
3. In neither of these settlements, there has been a specific reference to the particular issue covering the disciplinary action taken against the workmen. In the earlier settlement, the demand had been "withdrawn". The latter one merely and substantially adapted the earlier settlement to other actions of the workmen.
4. There were further attempts under the Industrial Disputes Act to have a proper resolution of the issue relating the action taken against the workmen. This backdrop of the events has been summarised in the report of the Assistant Labour Commissioner dated 26th November, 1987, by which he had forwarded to the Government a report acting under Section 12(4) of the Industrial Disputes Act, 1947. The very elaborate report speaks for itself. The opposing viewpoints in relation to such a sensitive dispute have been clearly and cogently explained in the report. The rival view-points have been neatly marshalled by the Assistant Labour Commissioner.
5. The Government of Goa initially felt that the facts did not justify the invocation of the powers under Section 10 and a reference to the Industrial Tribunal. The reference was, therefore, declined by the Government. The Union felt aggrieved by this Court's action. It alleged an abdication of the powers of the Government in declining the reference sought for by the Union. The Union approached this Court by filing Writ Petition No. 41 of 1990. This Court has issued rule in that writ petition. The writ petition is pending final disposal.
6. Subsequently, the Government took into consideration various aspects and has now, in departure from its previous stand, made an order of reference. It is this order that is under attack in the present writ petition.
7. It is now too late in the day to contend that the power of the Government under Section 10 gets exhausted by once declining to make a reference under Section 10. Counsel for the petitioner in the course of his arguments conceded the general proposition. According to him, it makes a difference, in relation to a situation where there had been an anterior, settlement between the parties, and consequently, according to him, the cessation of a dispute which could be referable to an Industrial Tribunal.
8. Section 10(1) is intended to provide a clear and immediate solution in the industrial field, as has been pointed out time and again, in relation to maintenance of industrial peace. Apart from the contending parties, namely, the labour and management, there is yet another party vitally interested. The community at large is interested in maintaining the industrial peace, and sustaining the tempo of production which leads to the buoyancy of national economy. This perspective cannot be overlooked while considering the amplitude of the power under Section 10. Mark the words that proclaim that the Government has got powers to make a reference when an industrial dispute exists or is even apprehended. That is an indication about the width of the powers which are in the Government for the above purpose.
9. If a settlement had been bona fide and really reached, that may be a factor which could be taken into consideration while adjudicating the issues. It is quite likely that in a given situation, the settlement could be either fraudulent or prejudicial to the interest of labour. That would not denude the powers of the Union to agitate and even to question the validity or the bona fides of the settlement reached between the parties. The power of the Government in such circumstances to ensure that a proper ad-
judication even in relation to such contentions cannot be denied at all in law. It is for this reason that the Court have given the greatest amplitude of authority for the Government while exercising functions under Section 10. It is necessary to bear in mind that right from 1950, the nature of the power exercised by the Government acting under Section 10 has been emphasised as being of an administrative character. It has necessarily great consequences in relation to the legal implications. The major decisions of 1975 and 1979, which have been discussed time and again by subsequent decisions as well, have highlighted the aspect about the power of the government to make a reference despite its having entertained a different view earlier. In that view of the matter, and particularly in the light of the various facts and events made mentioned of in the failure report, it would have been perfectly open to the Government to change its earlier stand and to come to a conclusion that the industrial peace of the area required a reference of the industrial dispute to the Tribunal. That is what has been done, and, in that course, we do not find any legal flaw whatever. The action of the management in relation to the dismissal of the workmen did not have at any time a fair consideration. That factual aspect also impels us to repel the technical contentions of the management.
10. Counsel submitted that the Government was obliged to hear the management before it made a second reference, an earlier reference having been declined. According to counsel for the petitioner, all the requirements of natural justice operate in that field.
11. The submission has neither legal logic nor theoretical justification to support. Counsel conceded that for the first time in making a reference, there is no necessity for the Government to hear the parties and conduct an inquiry in the matter before making such a reference. If that be so, there could not be any difference in relation to a subsequent exercise of that power, which under the decisions of the Apex Court, the Government is possessed of in the matter. Reliance was placed on the decision of the Karnataka High Court in Management of Theatre Sanjaya v. State 1984 (2) LLJ 400. Two different and violently opposing views had been taken by Venkatachallah, J. (as he then was) and Rama Jois, J., in that case. Justice Bopanna agreed with Justice Rama Jois. It is unenecessary to go through the elaborate discussion of the view-points paraded in the judgment in that case. One of the major contentions before that Court was on the adverse civil consequences that follow. With great respect, we are unable to endorse the majority view. We agree with the lucid reasoning and clear conclusion reached by Venkatachaliah, J.. Our views are strengthened by the view taken by the Division Bench of the Kerala High Court in Abdul Rahman Haji v. Abdul Rahiman, (1980) L.I.C. 910.
12. A reference of an industrial dispute by itself does not involve any adverse civil consequences. It only enables the parties to have an access to the adjudicating forum specially created under a statute enacted with a laudable social goal. Adverse civil consequences may follow from an award ultimately passed. But then, before an award is passed, all opportunities to plead, to adduce evidence and to substantiate the contentions are accorded to the parties under the very scheme of the Act. No doubt, the parties have to attend to the matter before the Tribunal as and when a reference is made. To treat that obligation as the imposition of adverse civil consequences would be an artificial and uncalled for stretching of the concept of Civil consequences, about which the Supreme Court has already given helpful indications (see 1984 (2) LLJ .400 Kar). Take an illustration of the Government or any authority answering the description of a State under Article 12, of the Constitution filing a suit against a person. Similar duties as expected of a party to a reference in attending to the hearing before the Tribunal, are cast on the defendant. Yet, it would be absurd to suggest that the Government should hear the prospective defendant before it institutes a suit or other civil proceedings. No administrative action can be effectively performed if such an unimaginative view is taken in relation to administrative matters. A mere reference by the Government does not involve any adverse civil consequences and consequently, there is no obligation whatever to give a hearing to the parties, before the actual reference is made by the Government in exercise of its administrative powers. The contention urged, therefore is devoid of merit. We have no hesitation whatever in rejecting it.
The writ petition is dismissed.