1. The petitioner in the above writ petition is the Management of Kirloskar Electric Co. Ltd., Bangalore. It has challenged the validity of the order dated 26-11-1973 passed by the Labour Court, Bangalore.
2. The facts of the case are briefly these : In or about the year 1965, an industrial dispute arose between the petitioner and its workmen with regard to the termination of services of an employee by name Jayaramiah. The matter was taken up before the Conciliation Officer who ultimately reported to the Government that the proceedings ended in failure. By its order dated 23-2-1967 passed under S. 12 of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), the State Government declined to refer the said industrial dispute for adjudication to the Labour Court. The workmen challenged the said order before this Court in W.P. 203 of 1968. Only the State Government was impleaded as respondent to the said writ petition. The present petitioner was not impleaded as a party. The said writ petition was allowed by a Division Bench of this Court by its order dated 11-1-1972. In the course of its order, this Court observed that the order passed by the State Government declining to make a reference to the Labour Court did not show that the Government has applied its mind to the case and hence it was necessary for the Government to apply its mind to the facts of the case and to take a decision in accordance with law on the question whether the matter should be referred for adjudication to the Labour Court or not. Thereafter, on a reconsideration of the said question, the state Government came to the conclusion that the dispute in question should be referred to Labour Court. Accordingly, it made a reference by its order No. FCL 629 LLD 68 dated 12-2-1973 to the Labour Court to decide the question whether the petitioner was justified in terminating the services of Jayaramiah. In the course of the proceedings before the Labour Court the petitioner, among others, raised a contention that the reference made by the State Government was illegal and without jurisdiction because the parties to the case had not been heard by the State Government before making the order of reference. The Labour Court repelled the said contention by the order which is impugned in these proceedings. Hence this writ petition.
3. Shri V. L. Narasimha Murthi, learned counsel for the petitioner, contended relying upon the decision of the Supreme Court in Kraipak v. Union of India, : 1SCR457 , that the State Government had violated the rules of natural justice in referring the industrial dispute for adjudication to the Labour Court without hearing the petitioner before making such a reference. He depended upon the following observations of the Supreme Court in the above case :
'The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the frame-work of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. In a welfare State like ours it is inevitable that the organs of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of a rule of law would lose its validity if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi-judicial power .........
With the increase of the power of the administrative bodies it has become necessary to provide guidelines for the just exercise of their power. To prevent the abuse of that power and to see that it does not become a new despotism, Courts are gradually, evolving the principles to be observed while exercising such powers. In matters like these public good is not advanced by a rigid adherence to precedents. New problems call for new solutions. It is neither possible nor desirable to fix the limits of a quasi-judicial power. But for the purpose of the present case we shall assume that the power exercised by the selection board was an administrative power and test the validity of the impugned selections on that basis'.
The Supreme Court was concerned in that case with a selection made by the Indian Forest Service. If found that amongst the members of the selection committee, there was one member who was vitally interested in the recommendations to be made by the said committee because he was a person who had offered himself as a candidate at the said selection. Ultimately, it came to the conclusion that the recommendation made by the committee was vitiated on the ground that there was a reasonable likelihood of bias in deciding the question before the committee. Following the observations of the Supreme Court in the above case Ramaprasada Rao, J., of the High Court of Madras held in Abdul Salam & Co v. State of T. N., 43 F.J.R. 180, that is was the duty of the State Government to have heard the parties concerned before making a reference of an industrial dispute for adjudication to a Labour Court or Industrial Tribunal when the State Government had earlier declined to make such a reference. The facts of that case were these : The State Government had earlier refused to refer an alleged industrial dispute for adjudication. Later on, the State Government received certain representations made by some members of the public and representatives of the workmen. After taking into consideration the said representations, the State Government reconsidered the question again and then referred the dispute to a Labour Court. Before making such a reference the State Government did not give any opportunity to the management concerned to show cause as to why a reference should not be made. In those circumstances, the learned Judge was of the opinion that though the power exercised by the State Government in making a reference under S. 10(1) of the Act for adjudication of an industrial dispute to an appropriate Court or Tribunal, was administrative in character, the action of the State Government in referring the said dispute without hearing the management concerned, was vitiated as the principles of natural justice had been violated. In coming to that conclusion, he relied upon the observations of the Supreme Court in Kraipak's case (supra), extracted above. He, however, recognised a distinction between a case where a reference is made by the State Government after taking into consideration certain representations made to it after it had earlier declined to make a reference and a case where a reference is made by the State Government suo motu. He observed in the course of the said judgment that if the Government suo motu changed their mind without anyone prompting them to do so and wanted to exercise their inherent power on the same material which was considered by them in the first instance the matter would be different, but the impugned order which was in the nature of a decision made by the Government was made on an extraneous material in the sense that the petitioner in that case did not have a fair opportunity to meet them or even know of them. In that sense, he was of the opinion that there was an apparent error and there was a failure of application of the well-known principles of natural justice.
4. A careful reading of the observations of the Supreme Court in Kraipak's case (supra) extracted above and in State of Orissa v. Binapani Dei, : (1967)IILLJ266SC , suggests that even when the action taken by the executive is administrative in character, if such action is likely to lead to certain civil consequences which are prejudicial to any person, there is an implied obligation on the part of the authority taking such a decision to give an opportunity to the person who is likely to be affected to show causes as to why the proposed action should not be taken. The Supreme Court emphasised the fact that it was only when an action taken by the administrative authority is likely to result in any kind of prejudice to a third party that such party should be given an opportunity to be heard. If there is no likelihood of any such prejudice or civil consequences, there may be no necessity to given an opportunity to the party concerned to make his representation in respect of the proposed action unless the statute under which the authority functions, expressly requires that such an opportunity should be given. In Abdul Salam's case (supra) referred to above the High Court of Madras was of the opinion that on a reference being made to an Industrial Court or Tribunal, certain unfettered rights which the management enjoyed in relation to its workmen would get restricted and that was sufficient to attract the observations of the Supreme Court in Kraipak's case (supra). If the said conclusion is right then there could be no distinction between a case where a reference is made to an Industrial Tribunal of Labour Court by the State Government suo motu and a case where a reference is made on a consideration of certain representations received by the State Government after it had once declined to make such a reference. In either case the legal fetters that would be imposed by law on the management by reason of Ss. 33 and 33A of the Act would be the same. With great respect to the learned Judge who decided the said case, I cannot agree with the conclusion reached by him in the said case.
5. The Supreme Court has, in the course of its judgment in Kraipak's case (supra) observed that in order to decide whether an opportunity should be given to a party concerned, it would be necessarily to bear in mind the nature of the power that is exercised, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. When the State Government makes a reference under S. 10(1) of the Act of an industrial dispute for adjudication to a Labour Court or Industrial Tribunal, it does not decide any question of fact or law. The only condition which the exercise of that power should satisfy is that there should be the existence of an industrial dispute or there should be an apprehension that an industrial dispute exists. When once the State Government is satisfied about the said question, it acquires jurisdiction under the Act to refer to a Labour Court or to an Industrial Tribunal, the industrial dispute for adjudication. The fact that at one stage the State Government was of the opinion that there was no need to refer the matter for adjudication, does not preclude it from reconsidering the question and making a reference at a later stage.
6. In Western India Match Co. Ltd. v. Its Workmen, : (1970)IILLJ256SC it has been held by the Supreme Court that when the Government refuses to make a reference it does not exercise its power; on the other hand, it refuses to exercise its power and it is only when it decides to refer that it exercises its power. Consequently, the power to refer cannot be said to have been exhausted when it has declined to make a reference at an earlier stage. There is thus a considerable body of judicial opinion according to which so long as an industrial dispute exists or is apprehended and the Government is of the opinion that it is so, the fact that it had earlier refused to exercise its power does not preclude it from exercising it at a later stage. In this view, the mere fact that there has been a lapse of time or that a party to the dispute was, by the earlier refusal, led to believe that there would be no reference and acts upon such belief, does not affect the jurisdiction of the Government to make the reference. It is also seen from the provisions of Ss. 33 and 33A of the Act to which reference was made by the learned counsel for the petitioner, that those sections do not in any way take away any existing right of the management. Those sections only require the management to submit its action to the scrutiny of the Court either in the form of an application for permission to take disciplinary action against a workman or in the form of an application for approval to an action taken against a workman. A management which is expected to deal with its workmen in a reasonable way, need not feel shy to approach the Court or the Tribunal and seek its permission to take an action or approval to an action already taken. I do not think that the presence of Ss. 33 and 33A in the Act would attract the enunciation made by the Supreme Court in Kraipak's case (supra). It should also be borne in mind that any decision taken by the State Government under S. 10 of the Act does not lead to any finality in so far as the dispute between the parties is concerned. The dispute is normally heard by Court or Tribunal presided over by Judges with judicial experience. In that situation, it cannot be said that the management would suffer any kind of prejudice if the State Government proceeds to make a reference under S. 10(1) of the Act, without hearing the parties although it has, on an earlier occasion, declined to do so. I do not, therefore, find any substance in this writ petition.
7. The writ petition fails and it is dismissed with costs. Advocate's fee Rs. 100.