Orissa High Court
Gandharba Bhoi vs Steel Authority Of India Ltd., Rourkela ... on 11 February, 1987
Equivalent citations: (1993)IIILLJ478ORI
Author: G.B. Patnaik
Bench: G.B. Patnaik
JUDGMENT Patnaik, J.
1. The petitioner, an employee under the Steel Authority of India, was removed from the service by order, dated 3 August, 1976. He raised an industrial dispute challenging the illegal order of termination and demanded reinstatement with backwages. The Labour Officer who is also the Conciliation Officer submitted a failure report to the State Government. The State Government by order, dated 22 August 1978, has communicated to the petitioner that there is no case for reference of the dispute for adjudication as the service has been terminated in pursuance of the certified standing orders of the company. This order of the State Government has been annexed as Annexure 5 to the writ petition. The petitioner impugns the said order in the present writ application.
2. Sri Mohanty, the learned counsel for the petitioner, contends that Sub-section (5) of Section 12 of the Industrial Disputes Act (hereinafter referred to as the Act) makes it obligatory for the State Government to record and communicate the reasons for non-reference and the so-called reason indicated in Annexure 5 must be held in the eye of law to be no reason at all or that it tantamounts to adjudication therefore, it must be held that the State Government acted on extraneous and irrelevant grounds or grounds not germane to the determination and accordingly a writ of mandamus would lie calling upon the Government to reconsider its decision.
3. The learned Standing Counsel appearing for the State Government, on the other hand, contends that the power which the State Government exercises under Section 10(1) read with Section 12 of the Act is administrative in nature and confers wide discretion on the State Government either to make reference or to refuse it. If the State Government exercises that power bona fide, then the decision of the State Government is not amenable to the writ jurisdiction of this Court.
4. Sri Satpathy, the learned counsel appearing for the Steel Authority of India while reiterating the submissions made by the learned Standing Counsel further contends that the order of termination was approved by the Tribunal under Section 33(2)(b) of the Act and, therefore, the State Government was justified in not making a reference of the alleged dispute.
5. The rival contentions really centre round the questions as to what is the parameter of the power of the appropriate Government under Section 10 of the Act while making or refusing to make a reference to the Industrial Tribunal for adjudication of an industrial dispute and what is the extent of jurisdiction of the High Court under Article 226 of the Constitution to interfere with such an order. The learned Standing Counsel appearing for the State Government relies upon the decisions of the Supreme Court in Prem Kakar v. State of Haryana AIR 1976 S.C. 1474 and in Avon Services (Production Agencies) (Pvt.) Ltd., v. Industrial Tribunal, Haryana 1979(1)LLJ 1 in support of his contention that an order of the State Government under Section 10 of the Industrial Disputes Act being administrative in nature is not amenable to the jurisdiction of this Court under Article 226 of the Constitution. We fail to understand how the aforesaid two decisions support the contention of the learned Standing Counsel.
6. In Prem Kakar case AIR 1976 SC 1474 (vide supra) the Government refused to make reference on the ground that the applicant was doing a supervisory job receiving more than Rs. 500 per month as wage and, therefore, was not a "workman" as defined in the Industrial Disputes Act and consequently, a reference could not be made under the Act to the Tribunal. When that decision was challenged, the Supreme Court observed that since on the facts placed, the Government found the applicant not to be a workman within the definition of "workman" under the Act and, therefore, did not think it fit for making a reference for adjudication, such an order was rightly rejected by the High Court. Nowhere the aforesaid decision lays down the proposition as contended by the learned Standing Counsel in this Court that the order of the Government being an administrative order is not amenable to the jurisdiction of this Court under Article 226 of the Constitution.
7. In Avon Services case again the question for consideration before the Supreme Court was as to the extent of jurisdiction of this Court against an order of the Government under Section 10 of the Act. The Supreme Court observed in Para 6, at page507:
"......Section 10(1) of the Act confers power on the appropriate Government to refer at any time any industrial dispute which exists or is apprehended to the authorities mentioned in the section for adjudication. The opinion which the appropriate Government is required to form before referring the dispute to the appropriate authority is about the existence of a dispute or even if the dispute has not arisen, it is apprehended as imminent and requires resolution in the interest of industrial peace and harmony. Section 10(1) confers a discretionary power and this discretionary power can be exercised on being satisfied that an industrial dispute exists or is apprehended. There must be some material before the Government on the basis of which it forms an opinion that an industrial dispute exists or is apprehended. The power conferred on the appropriate Government is an administrative power and the action of the Government in making the reference is an administrative act. The formation of an 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. Thus, the jurisdictional facts on which the appropriate Government may act are the formation of an opinion that an industrial dispute exists or is apprehended which undoubtedly is a subjective one, the next step of making reference is an administrative act. The adequacy or sufficiency of the material on which the opinion was formed is beyond the pale of judicial scrutiny. If the action of the Governmet in making the reference is impugned by a party it would be open to such a party to show that what was referred was not an industrial dispute and that the Tribunal had no jurisdiction to make the award but if the dispute was an industrial dispute, its factual existence and the expediency of making a reference in the circumstances of a particular case are matters entirely for Government to decide upon, and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because there was, in its opinion, no material before Government on which it could have come to an affirmative conclusion on those matters."
In our opinion, the aforesaid decision neither prohibits exercise of jurisdiction under Article 226 against an order of the Government under Section 10(1) of the Act nor does it say that such discretionary order is not amenable to the writ jurisdiction of this Court. The aforesaid decision merely states that the satisfaction of the State Government is a subjective one and the order of reference is an administrative act and consequently, the adequacy or sufficiency of the material on which the opinion was formed is beyond the pale of judicial scrutiny. There is no dispute with the aforesaid proposition of law. The law on the subject has been fully discussed in the case of Bombay Union of Journalists v. State of Bombay : 1964 (1) LLJ 351 and has been reiterated in the recent decision of the Supreme Court in the case of Ram Avtar Sharma v. State of Haryana AIR 1985S.C.915; 1985(2) LLJ 1871.
8. In Bombay Union of Journalists v. State of Bombay and Ors. 1964( 1) LLJ 351 (vide supra) the Supreme Court observed:
"Besides, in dealing with the contention, it is necessary to remember that in entertaining an application for a writ of mandamus against an order made by the appropriate Government under Section 10(1) read with Section 12(5), the Court is not sitting in appeal over the order and is not entitled to consider the propriety or the satisfactory character of the reasons given by the said Government. It would be idle to suggest that in giving reasons to a party for refusing to make a reference under Section 12(5), the appropriate Government has to write an elaborate order indicating exhaustively all the reasons that weighed in its mind in refusing to make a reference. It is no doubt desirable that the party concerned should be told clearly and precisely the reasons why no reference is made, because the object of Section 12(5) appears to be to require the appropriate Government to state its reasons for refusing to make a reference, so that the reasons should stand public scrutiny; but that does not mean that a party challenging the validity of the Government's decision not to make a reference can require the Court in writ proceedings to examine the propriety or correctness of the said reasons. If it appears that the reasons given show that the appropriate Government took into account a consideration which was irrelevant or foreign, that no doubt, may justify the claim for a writ of mandamus.........."
9. In Ram Avtar Sharma's case the Supreme Court was considering an order of refusal to refer and the said order has been quoted in Para. 1 of the judgment. After referring to a large number of earlier decisions of the Court, it was observed in Paras 6 and 7,at page 283:
"......Therefore, the view that while exercising power under Section 10(1) the function performed by the appropriate Government is an administrative function and not a judicial or quasi-judicial function is beyond the pale of controversy".
It was further observed:
"Now if the Government performs an administrative act while either making or refusing to make a reference under Section 10(1), it cannot delve into the merits of the dispute and take upon itself the determination of Us. That would certainly be in excess of the power conferred by Section 10. Section 10 requires the appropriate Government to be satisfied that an industrial dispute exists or is apprehended. This may permit the appropriate Government to determine prima fade whether an industrial dispute exists or the claim is frivolous or bogus or put forth for extraneous and irrelevant reasons not for justice or industrial peace and harmony. Every administrative determination must be based on grounds relevant and germane to the exercise of power. If the administrative determination is based on irrelevant, extraneous or grounds not germane to the exercise of power it is liable to be questioned in exercise of the power of judicial review. In State of Bombay v K.P. Krishnan: 1960 (2) LLJ 592 it was held a writ of mandamus would lie againsf the Government if the order passed by it under Section 10(1) is based on or induced by reasons which, as given by the Government are extraneous, irrelevant and not germane to the determination. In such a situation the Court would be justified in issuing a writ of mandamus even in respect of an administrative order. May be, the Court may not issue a writ of mandamus, directing the Government to make a reference but the Court can after examining the reasons given by the appropriate Government for refusing to make a reference come to a conclusion that they are irrelevant, extraneous or not germane to the determination and then can direct the Government to reconsider the matter. The legal position appears to be beyond the pale of controversy."
This being the position of law, there cannot be any manner of doubt that even if the order of the State Government under Section 10(1) of the Act is administrative in nature, yet the same is amenable to the jurisdiction of this Court under Article 226 of the Constitution. The contention of the learned Standing Counsel as well as of Sri Satpathy appearing for the Steel Authority on this score cannot be sustained.
10. Coming to the next submission of Sri Satpathy, the learned counsel for the Steel Authority, regarding the order of termination being approved by the Tribunal under Section 33(2)(b) of the Act, a dispute pertaining to the same matter is not referable to the Tribunal, we also find no substance in the same. The scope and ambit of Section 33 of the Act is quite different from the scope and ambit of a reference under Section 10 of the Act. While deciding an application under Section 33, the Tribunal is not required to consider whether the punishment sought to be meted out by the employer to workman is harsh or excessive or to substitute another punishment or to impose any conditions on the employer before the requisite permission could be granted. The Tribunal cannot substitute its judgment for that of the management on the question whether the punishment is unduly severe nor can it hold that the punishment proposed is not necessary. The Tribunal also cannot sit in appeal over the finding of the enquiring officer and reappreciate the evidence. The jurisdiction of the Industrial Tribunal in an application under Section 33(2)(b) of the Act is confined to the enquiry as to whether a proper domestic inquiry in accordance with relevant rules /standing orders and principles of natural justice has been held and whether a prima facie case for dismissal based on legal evidence adduced before the domestic Tribunal is made out as well as whether the employer had come to bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee. When a Tribunal gives or refuses to give permission, it does not adjudicate an industrial dispute. The power of the Tribunal and the nature of jurisdiction exercised by it under Section 33(2)(b) of the Act have been stated by Gajendragadkar, J. (as his Lordship then was) in the case of Punjab National Bank Ltd. v. All India Punjab National Bank Employes' Federation AIR 1960 S.C. 160, thus:
....It has to consider whether a prima fade case has been made out by the employer for the dismissal of the employee in question. If the employer has held a proper enquiry into the alleged misconduct of the employee, and if it does not appear that the proposed dismissal of the employee amounts to victimisation or an unfair labour practice, the Tribunal has to limit its enquiry only to the question as to whether a prima facie case has been made out or not. In these proceedings it is not open to the Tribunal to consider whether the order proposed to be passed by the employer is proper or adequate or whether it errs on the side of excessive severity; nor can the Tribunal grant permission, subject to certain conditions, which it may deem to be fair. It has merely to consider the prima facie aspect of the matter and either grant the permission or refuse it according as it holds that a prima facie case is or is not made out by the employer".
Under Section 10 of the Act, however, the appropriate Government, if it is of the opinion that any industrial dispute exists or is apprehended, is entitled to refer the dispute to the Tribunal for adjudication. Thus existence of an industrial dispute or apprehension of an industrial dispute confers jurisdiction on the State Government to refer the dispute for adjudication to the Tribunal. The power of the Tribunal though prior to introduction of Section 11A of the Act was rather limited, yet subsequent to the introduction of Section 11A into the statute, the Tribunal has ample power to satisfy itself whether the misconduct in question is proved or not. The Tribunal also has jurisdiction to consider as to whether the findings arrived at by an employer in an enquiry are properly arrived at and the Tribunal can interfere with the punishment imposed by an employer. The Tribunal can differ from the management both on a finding of misconduct arrived at as well as the punishment imposed by the employer. Section 11A of the Act has clothed the Tribunal with the power to reappraise the evidence in the domestic inquiry and satisfy itself whether the said evidence relied on by the employer establishes the misconduct alleged against the workman. In course of adjudication, the Tribunal has to satisfy itself that the punishment in question, commensurate with the gravity of the charge of misconduct. This being the power of the Tribunal in entertaining a reference made to it by the State Government under Section 10, the conclusion is irresistible that an order of approval by the Tribunal under Section 33(2)(b) of the Act does not oust the jurisdiction of the State Government to make a reference to the Tribunal, nor does it put any fetter on the power of the Tribunal to entertain and decide a dispute referred to it. We would, therefore-unhesitatingly reject the submission of Sri Satpathy, the learned counsel appearing for the Steel Authority on this score.
11. We would now examine the order of the Stale Government refusing to make the reference to test whether the so-called reason communicated by the State Government can at all be considered as a reason in accordance with law or is one based on irrelevant, extraneous consideration not germane to the determination. The order of the State Government refusing to make a reference as contained in annexure 5 is extracted hereunder for better appreciation of the point in issue:
"On a consideration of the above report of the Conciliation Officer, the State Government are satisfied that there is no case for reference of the dispute for adjudication as the services of Sri Bhoi were terminated in pursuance of the certified standing order of the company."
Almost an identical order issued by the Haryana Government came up for consideration before the supreme Court in Ram Avtar Sharma and Ors. v. State of Haryana and Ors. and considering the same, the Supreme Court observed in Para 9, at page 284:
".... .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 irrevelent, 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. See Bombay Union of Journalists v. State of Bombay. It is equally well settled that where the Government purports to give reasons which tantamount to adjudication and refuses to make a reference, the appropriate Government could be said to have acted on extraneous, irrelevant grounds or grounds not germane to the determination and a writ of mandamus would lie calling upon the Government to reconsider its decision...'' The aforesaid observations of the Supreme Court are fully applicable to the present case, we must hold that the reason contained in the impugned order in Annexure 5 refusing to make a reference tantamounts to adjudication and consequently beyond the jurisdiction of the State Government. We would accordingly quash the order of the State Government contained in Annexure 5 to the writ petition and issue a writ of mandamus directing the appropriate Government to reconsider its decision in exercise of the power under Section 10 of the Act on consideration relevant and germane to the decision.
12. The writ application is accordingly allowed, but in the circumstances, there will be no order as to costs.
Rath, J.
13. Iagree.