1. In this petition under Art. 226 of the Constitution, the petitioner challenges the order of the Deputy Commissioner of Labour refusing to make reference with regard to the dispute raised by the petitioner and the union in regard to his reinstatement and back-wages.
2. The petitioner was employed as a workman with respondent No. 1. On 8-5-1975 a show cause notice was served on him in regard to certain acts of misconduct. Charges wore framed on 9-5-1975 and 11-5-1975. On 16-5-1975 the petitioner was informed that an enquiry will be held into the charges by one Dhelakia on 22-5-1975. It appears that all the workmen employed by the employer went on strike against this act of holding enquiry by the employer against the petitioner. On 22-5-1975 the petitioner did not appear at the enquiry. The enquiry officer recorded evidence of the witnesses produced before him and submitted his report to the employers. On the strength thereof, dismissal order was passed on 28-6-1975. The union raised a dispute with regard to his dismissal claiming reinstatement and back-wages. As there was no response from the employers, the conciliation officer was approached by the union. On 15-10-1975 the dispute was admitted in conciliation. Preliminary sittings were held on two occasions. Union complained that copies of the enquiry papers and the dismissal order were not given to the employee. It appears. It appears that the union did not remain present thereafter before the conciliation officer. On 24-11-1975 the conciliation officer submitted his failure report. The impugned order was passed on 20-1-1976 refusing to make any reference on the ground that the principles of natural justice were found to have been complied with. It is the validity of this order that is challenged in this petition.
3. Mr. Narayan B. Shetye, the learned advocate appearing for the petitioner, contends that after introduction of S. 11A in the Industrial Disputes Act in 1972, the employees protected by the Industrial Disputes Act are entitled not only to have the quantum of punishment reviewed by the Industrial Tribunal but also finding as to the misconduct reappraised by the Tribunal. The grievance of Mr. Shetye, therefore, is that the Deputy Commissioner's view that mere compliance with the principles of natural justice was sufficient to refuse to make reference is based on irrelevant grounds and is not legally correct.
4. This contention of Mr. Shetye appears to us to be well-founded. The petitioner was dismissed from service on 20-6-1975. On that date S. 11A was on the statue book. The scope of S. 11A came up for consideration before the Supreme Court in the case of Workmen of Firestone Tyre & Rubber Co. of India v. The Management and others; : (1973)ILLJ278SC . The learned Judges reviewed the case law as to the scope of the powers of the Tribunal before its amendment in 1972 and after the introduction of S. 11A thereunder. Summary of the case law can be found in para 27 of the judgment at page 1238. The learned Judges then proceeded to consider what alteration is made in the said law by the introduction of S. 11A with effect from 15-12-71. This is what the learned Judges observed .
'The conduct of disciplinary proceeding and the punishment to be imposed were all considered to be a managerial function, which the Tribunal has no power to interfere unless the finding was perverse or the punishment was so harsh as to lead to an inference of victimisation or unfair labour practice.'
The learned Judges then observed
'This position, in our view, has now been changed by S. 11A. The words 'in the course of the adjudication, proceeding, the Tribunal is satisfied that the order of discharge or dismissal was not justified' clearly indicates that the Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer established the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to satisfaction being arrived at by the Tribunal that the finding of misconduct is correct. The Limitations imposed on the powers of the Tribunal by the decision in Indian Iron and Steel Co. Ltd., : (1958)ILLJ260SC , case can no longer be invoked by an employer. The Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct; but also to differ from the said finding if a proper case is made out. What was once largely in the realm of the satisfaction of the employer, has ceased to be so; and now it is the satisfaction of the Tribunal that finally decides the matter.'
There is no doubt that the power conferred under S. 10 of the Industrial Disputes Act to make reference or not to make the same, is indeed discretionary and that the Government is not bound to make a reference of any dispute to any Industrial Court or Labour Court because a party or a union or the employer demands such a reference. Even so, the Government is under an obligation to exercise the discretion, reasonably and by reference only to relevant considerations. One of the relevant considerations, while making or refusing to make reference, after the introduction of S. 11A in the Industrial Disputes Act, must necessarily be that the employee is entitled to get the evidence as to the proof of his misconduct reviewed in such a reference as also the quantum of punishment, even if the misconduct is held to have been proved. In other words, the circumstance that the disciplinary Authority or the Appellate Authority over the same has applied its mind to the evidence on record and had bona fide come to some conclusion as to the proof of misconduct and the quantum of punishment by itself is not sufficient to refuse to make reference. The Supreme Court has, no doubt, held that the Government is entitled to form prima facie opinion as to whether reference in a given case is justified or not. It can only mean, in the altered legal situation, that the Government has to consider prima facie whether there is anything in the evidence which may goad or persuade the Labour Court or the Industrial Tribunal to change its opinion as to the conclusion of misconduct or the quantum of punishment therefor. The Government may refuse to make reference if in their prima facie opinion the right of getting evidence reviewed already recorded and the right of getting reviewed the quantum of punishment awarded, is bound to be of no practical use in a particular case. In that case refusal of making reference will be justified and can be said to have been arrived at and reached by keeping the relevant considerations in mind. Where the Government does not appear to have borne these considerations in mind, the order refusing to make reference is liable to be quashed. All that the impugned order indicates is that the principles of natural justice were found by the Government to have been complied with. This, to our mind, does not appear to be a sufficient justification for refusing to make reference, because even on such evidence possibility of the reference authority coming to some different conclusion cannot be ruled out. Even if the authority found on review of evidence that the misconduct is proved, even then the said authority can find that the punishment imposed was not called for. In this view of the matter, the impugned order is liable to be set aside. The Government shall have to reconsider the question of reference in the light of the observations made above.
5. Mr. Chopra, the learned advocate appearing for the respondents 2 and 3, drew our attention to the affidavit filed on behalf of the State in support of the order. Mr. Chopra's main contention was that no fault can be found with the order of the Government, if the employee-petitioner did not display any interest and did not appear at the enquiry to contest the evidence led against him and also when the union choose to remain absent after the enquiry papers were made available to them on their own raising an objection to that effect, before the conciliation officer. This conduct of the employee undoubtedly should ordinarily disentitle the petitioner from claiming any relief from this Court, while exercising our discretionary powers under Art. 226 of the Constitution. This, however, cannot be relevant before the Government, who were, in our opinion, bound to bear in mind the new rights created in favour of the employee under S. 11A of the Industrial Disputes Act. Mr. Chopra is right in contending that the question of reviewing the evidence afresh, or quantum of punishment can only arise, if the reference is made. The question of employee exercising any such right cannot arise, if in its discretion the Government refuses to make any reference. This contention, in our opinion, is misconceived. Powers under S. 10 cannot be held to have been properly exercised by the Government, unless it is shown to have these rights of the workman before its mind, while refusing to make the reference.
6. We accordingly allow this application, set aside the impugned order and make the rule absolute.
7. We direct the Government to reconsider the matter in the light of the above observations.
8. In the circumstances of this case, there will be no order as to costs.