1. This Writ Petition is filed by the Petitioner who is an employee of the Respondent No.2 the Indian Hotels Company Limited, Taj Mahal Hotel, Bombay. It is an admitted position that the petitioner was working in the Taj Mahal Hotel, Bombay from 1st February 1976. On 1st July 1979, he was confirmed as a Junior Operator. It appears that thereafter with effect from 1st June 1982 he was appointed as Assistant Operator and from 1st October, 1982 as Operator. His services were terminated by an order, dated 23rd September, 1983 and ostensibly the order is of termination simpliciter. The Petitioner - employee raised an industrial dispute qua the said termination on 26th October 1983. Thereafter conciliation proceedings were held and the conciliation officer submitted a failure report on 2nd March, 1984. Thereafter by an order, dated 30th April, 1984, the State Government, in exercise of its powers under Sub-section (5) of Section 12 of the Industrial Disputes Act refused to make a reference for adjudication. It is this order refusing to make a reference, which is challenged in the present Writ Petition.
2. Dr. Kulkarni, the Learned Counsel appearing for the petitioner, contended before us that the Deputy Commissioner of Labour exceeded his jurisdiction in refusing to make a reference. In the dispute raised the employee had contended that though ostensibly the order of termination is simpliciter, it has been issued in mala fide exercise of the power with an intention to victimise him because of his Trade Union activities. It was also contended that after a new Union was formed in the establishment and the petitioner was elected as its Joint Secretary on 12-9-1983, the Management took a different view of the matter and as a camouflage and in colourable exercise of the power, issued the termination order, which is not only patently illegal, but amounts to victimisation for Trade Union activities. Thus, the industrial dispute raised involved substantial question of law and fact which required adjudication and could not have been decided by the Respondent No.1 while exercising its power under Subsection (5) of Section 12 of the Act. As a matter of fact, merely relying upon the conciliation report, the Deputy Commissioner of Labour has passed the present order mechanically without any application of mind and obviously because of the undue influence of management. The so-called plea raised by the employee about the loss of confidence is nothing but an after thought and no material was placed before the Government to substantiate the said plea. In substance, the order passed by the Respondent No.1 refusing to make a reference is wholly illegal. In support of his contention, Dr. Kulkarni has placed reliance upon the Division Bench decision of this Court in K.P. Kshatriya v. Khandalwala Udyog Ltd. and Ors. 1980(2) Labour Law Journal 261, the decision of another Division Bench in Special Civil Application No. 341 of 1971, decided on 5th March, 1974 by Desai and Sawant JJ. and the decision of the Supreme Court Between Workmen of Buckingham and Carnatic Mills Madras and Others and State of Tamil Nadu and Ors., 1984 (1) Labour Law Journal 561 and Between Nirmal Singh and State of Punjab and Ors., 1984 (2) Labour Law Journal 396. He has also placed reliance upon the decision of the Madhya Pradesh High Court Between Vishnu Sadav Bhattacharya and Manager, Cycle Industries, M. P. Ladhu Udyog Nigam, Guna and Ors., 1972(2) Labour Law Journal 373, and the decision of Pendse J. in Vinayak v. State (W.P. No. 1744/84, decided on 28.9.1984).
3. On the other hand, it is contended by Shri Damania and Shri Khambatta, the learned Counsels appearing for Respondents 1 and 2 that under Sub-section (5) of Section 12, the State Government or the competent authority is not obliged to pass an order referring the dispute for adjudication mechanically. Discretion is vested in the Competent Authority to scrutinise the whole matter and the only obligation cast upon it is to give reasons when it comes to the conclusion that it is not a fit case for making a reference. In the present case the Respondent No.1 has given good reasons for refusing to make a reference. While exercising its jurisdiction under Article 226 and 227 of the Constitution of India, this Court cannot sit in appeal over the decision taken by the Competent Authority and, therefore, this is not a fit case wherein any interference is called for with the order passed by Respondent No.1. Even otherwise sufficient material was placed before Respondent No. 1 from which a prima facie conclusion could have been drawn that for the reasons stated in the order, this was not a fit case for making a reference.
4. With the assistance of the Learned Counsel appearing for both the sides, we have gone through the relevant material placed before us. It appears that after the dispute was raised by the workman, before the Conciliation Officer certain written submissions were made by the rival parties. So far as the workman is concerned, he has stated in the clearest terms that after the new Union was started in the establishment and he had taken a leading part in starting the new Trade Union - the whole trouble started. In the month of July or August 1983, he had declared his intention to join the Lal Bavta Hotel Aur Bakery 2 Mazdoor Union CITU. A General Body Meeting for that purpose was held on 7th September 1983 at Cama Hall, Fort, Bombay. The said meeting was attended by over 500 employees, who were off duty end he 2 along with 23 others, was elected as a Member of the Committee. The Management was duly informed about this, vide letter dated 12th September, 1983. The management was also informed about the fact that the petitioner was elected as Joint Secretary of the Union. According to him, after this, the management started victimising him, and the order of termination was issued mala fide in colourable exercise of the power. For this purpose, he has also relied upon the orders of promotion issued on 1st June, 1982 and 1st October 1982. Thus, in substance, it was the case of the employee that the order has been issued in mala fide exercise of the power to victimise him for his trade union activities.
5. According to the Management, this was an order of discharge simpliciter. The petitioner was employed in the Maintenance Department of the Hotel where it was suspected on various occasions that he was tampering with the machinery, such as diesel oil service tank, the boiler, lithium Bromide Air-Conditioning Plant, the Automatic/Manual Selector Switches of the new Meter Transfer Pumps and also the 1050 KV Generating Set. Even the Director of Development and Research, who looks after the maintenance of the Hotel, along with Shri Kased, Director - Engineering, had reported a number of mischievous acts and actions of sabotage which took place in the Maintenance Department. According to the Management, it had reason to believe that Shri Daruwala, the petitioner, was responsible for these acts and, therefore, the Management had no alternative but to come to the conclusion that the workman-employee could not be retained in service of the Hotel and accordingly it decided to terminate his services under the provisions of the Standing Orders. In substance, it was the case of the management that since the employee occupied a position of confidence and strategy, and he could have put the Boilers, Filter water supply and air-conditioning out of operation, which could have also endangered the lives of some of the employees, the management lost confidence in him and, therefore, terminated his services.
6. These rival contentions are reproduced in the report of the Conciliation Officer. It appears that before the Conciliation Officer, preliminary discussions were held from 24th November 1983 till 22nd December 1983 and thereafter the demand was admitted in conciliation. Conciliation proceedings were held thereafter on 5th January 1984 and 13th January 1984 and although efforts were made to promote a settlement, the same did not materialise and hence a failure report was submitted. After this failure report was submitted, the Deputy Commissioner of Labour (Conc.) passed the following order:-
'In exercise of the powers conferred on me by Government vide Government Notification, Industries, Energy and Labour Department No. IDA 1379/3496(i)/Lab dated 20th April 1979 issued in suppression of Government Notification, Industries and Labour Department No. IDA 1369/117365/Lab-II, dated 9th April, 1969, I have to state that I have considered the report dated 2.3.1984 submitted to me by the Conciliation Officer, under Sub-section (4) of Section 12 of the Industrial Disputes Act, 1947 (XIV of 1947), in respect of the above dispute and I am satisfied that there is no case for reference thereof under Sub-section (5) of Section 12 for the reasons that the workman was occupying a position of strategy in the Maintenance Department where the Diesel Oil Tank, Boiler, Lithium Bromide Air-Conditioning Plant, Selector Switches of Row Water Transfer Pumps, 4050 KV Power Generating Set and other Key Machinery/Equipment are installed and the Management had bona fide lost confidence and trust in him for continuance in the said post. There is also nothing to suggest that the action of the management in terminating his services is either vindictive or by way of victimisation'.
As already observed, it is this order which is challenged in the present Writ Petition.
7. The law relating to the Jurisdiction of the Government or the Compensation Authority to make a reference or refuse to make a reference under Sub-section (5) of Section 12 is by now well-settled. So far as this Court is concerned, Pendse J. in Vinayak Ramo Tambe v. State of Maharashtra and the Indian Hotel Co. Ltd. (Writ Petition No. 1744 of 1984, decided on 28th September 1984), after making a; reference to the earlier decision of the Supreme Court in State of Bombay v. K.P. Krishnan and Ors. : (1960)IILLJ592SC and Bombay Union of Journalists and Ors. v. The State of Bombay and another : (1964)ILLJ351SC , observed as under;
'From the perusal of these two decisions, it becomes clear that the ambit of the enquiry open for the Government or the Dy. Commissioner under Section 12(5) of the Act is very limited. The Government has only to consider whether there is a prima facie case on merits and it is not permissible to adjudicate : on the merits of the claim raised by the employee. Instead, the Government or the Dy. Commissioner of Labour should be very slow in declining to make the reference because such an action would shut the doors for an employee to get his dispute adjudicated by the Labour Court. The Legislature has enacted the Industrial Disputes Act with the fervent hope that the disputes between the employee and the employer would be decided expeditiously and the substantial right conferred on the employee to get his dispute adjudicated from the Court should not be defeated by the Dy. Commissioner of Labour or the Government by adjudicating that the action of the management is justified'.
8. In Special Civil Application No. 341 of 1971, decided on 5th March 1974, Desai and Samant JJ pointed out the difference between the 'reasons' and 'decision'. A reference could also be made to another decision of the Division Bench of this Court in K.P. Kshatriya v. Khandelwal Udyog Ltd. and Ors. : (1980)IILLJ261Bom . Therefore, the ambit and the scope of the powers of the Government under Sub-section (5) of Section 12 of the Act are by now well-settled. As observed by Gajendragadkar J. (as he was then) in Bombay Union of Journalists and Ors. v. The State of Bombay and Anr. : (1964)ILLJ351SC , the appropriate Government cannot purport to reach final conclusions on disputed questions of fact while exercising jurisdiction under Sub-section (5) of Section 12 of the Act. Precisely this is what has been done in the present case and that too without any material on record. From the bare reading of the order passed by the Deputy Commissioner of Labour, it is quite clear that he has merely considered the report dated 2.3.1984 submitted by the Conciliation Officer under Sub-section (4) of Section 12 and on the basis of this report only, the Deputy Commissioner of Labour has reached the conclusions that (1) the workman was occupying a position of strategy in the Maintenance Department where the Diesel Oil Tank, Boiler, Lithium Bromide Air-Conditioning Plant, Selector Switches of Row Water Transfer Pumps, 4060 Power Generating Set and other Key Machinery/Equipments are installed; (2) the management had bona fide lost confidence and trust in him for continuance in the said post and (3) there is also nothing to suggest that the action of the management in terminating his services is either vindictive or by way of victimisation. Even in the Affidavit filed in reply by the Deputy Commissioner of Labour it is nowhere indicated on what material these conclusions are based. Therefore, it is more than clear that in the present case, conclusion is reached by the Deputy Commissioner of Labour only on the basis of the averments reproduced in the report of the Conciliation Officer. To come to a definite conclusion on the merits of the controversy or the dispute raised by the employee merely on the basis of the narration of the case of the respective parties is nothing but a travesty of justice. The Deputy Commissioner of Labour is not competent to come to such a final conclusion and that too without any material before him.
9. In the present case it cannot be forgotten that it was the case of the employee that the employees of Respondent No.2 become members of the new Union sometime in September 1983. He was elected as Joint Secretary of the Committee on 7th September 1983 and the order of termination came to be issued on 23rd September 1983. This cannot be termed as a mere coincidence. Even in the case as put up by the employee, a vague allegation is made that the management suspected the involvement of the employee in the incidents of tampering of machinery etc. It is nowhere stated as to when these incidents took place. In the year 1982, with effect from 1st June 1982 and 1st October 1982 the petitioner employee was promoted to the posts of Assistant Operator and Operator respectively. Dr. Kulkarni has also produced before us a letter of appreciation dated 15th December 1982 issued by the management appreciating the services rendered by the petitioner. In this case we are dealing with the case of a permanent workman whose services are terminated without giving any reasons. At a late stage, the termination which is simpliciter, is tried to be justified on the ground of loss of confidence. On the other hand, it is seriously contended by the workman that he is removed from service because of his legitimate trade union activities, which is a cogent evidence of victimisation and unfair labour practice. Therefore, if the dispute raised by the employee is considered in this background, it is hard to believe that it did not merit even an adjudication by the competent Tribunal. To say the least, the Deputy Commissioner of labour has usurped the power of the adjudicating authority in finally deciding the merits of the dispute and that too without any material on record. There is vast difference between the prima facie consideration of the merits of the dispute, and deciding it finally, which is the province of the Industrial Tribunal. In these circumstances we have no other alternative but to quash the order passed by the Deputy Commissioner of Labour refusing to make a reference. However, we would like to make it clear that nothing said in this judgment should be construed as our findings on the merits of the controversy, nor will it be binding on the authorities concerned while adjudicating the dispute on merits, as the authorities will have to decide the matter; afresh after giving a reasonable opportunity of being heard to both the parties.
10. Normally, we would have been sent the matter to the Deputy Commissioner of Labour for reconsideration. However, it is painful to note that in the case of the some establishment in Vinayak Ramo Tambe v. State of Maharashtra and Anr. (W.P. No. 1744/1984, decided by Pendse J. on 28.9.1984), a similar order was passed by the same authority of refusing to make a reference. An allegation is made in the petition that the impugned order is passed by the Deputy Commissioner of Labour since Respondent No.2 is an influential management. It is not possible to accept this contention in the absence of any material on record. However, we are satisfied that even after the remand of the matter, the Deputy Commissioner of Labour will have no other alternative but to make a reference, since it is not open to him to adjudicate case upon the merits of the controversy as the controversy raised involves substantial question of law and facts. That will only entail delay and nothing else. Therefore, we will prefer to follow the course followed by the Supreme Court in Nirmal Singh and State of Punjab 1982 II LLJ.396 and Between Workmen of Buckingham and Cernatic Mills, Madras and State of Tamil Nadu and Others 1984(i) LLJ. 651. Hence the order passed by the Deputy Commissioner of Labour is quashed and Respondent No.1 is directed to make a reference under Section 10 of the Industrial Disputes Act to the appropriate authority or forum. Such a reference will bemade within a period of one month from today and it shall be disposed of by the competent authority as expeditiously as possible after it is received. Hence Rule is made absolute with costs.