1. The points that arise for consideration in these appeals are (1) When the proceedings under S. 33(2)(b) of the Industrial Disputes Act, 1947, are pending before the Tribunal is the Government competent to refer under S. 10(1) of the Act the same matter for adjudication to an authority specified therein. (2) Even if the Government has the competence to make a reference under S. 10(1) of the Act is the decision to refer vitiated because of non-consideration of the pendancy of the proceedings under S. 33(2)(b) of the Act, before the Tribunal.
2. The facts giving rise in these appeals are these :
The appellant Company served charge sheets for certain misconduct alleged against each of the workmen, held an enquiry and as a result of the enquiry passed orders dismissing about 59 of its workmen. Because some disputes between the Company and its workmen were pending before the Labour Court the Company applied for approval under S. 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), for dismissing the said workmen. The workmen opposed the application. When these Proceedings under S. 33(2)(b) of the Act were pending the workmen raised disputes and on the Conciliation Officer reporting that there was no settlement of the said disputes the Government by its Order No. SWL 752 LLD 81 dated 5th November, 1981 referred the dispute concerning the dismissal of 42 workmen and by another Order No. SWL 261 LLD 82 dated 26th July, 1982 referred the dispute concerning the dismissal of the other 11 workmen for adjudication under S. 10(1) of the Act, to the Labour Court, Bangalore. The Company challenged the order dated 5th November, 1981 marked Annexure-E in Writ Petition No. 31400 of 1981 and the Order dated 26th July, 1982 marked Annexure-E in Writ Petition No. 37689 of 1982 and obtained stay of further proceedings pursuant to the orders of reference before the Labour Court, RAMA JOIS, J : heard both these writ petitions and by a common order made on 22nd June, 1984 dismissed these writ petitions. This decision is reported in (1985-I L.L.J. 227).
3. Learned Counsel for the Company canvassed the following points for our consideration. He argued that (i) During the pendancy of the proceedings under S. 33(2)(b) of the Act seeking approval of the Tribunal for dismissing the workmen, there is in law no order of dismissal to give rise for a dispute which can be referred for adjudication under S. 10 of the Act; (ii) The scope of the proceedings both under S. 33 and on a reference under S. 10 of the Act, are the same, the proceedings under S. 33 of the Act being proceedings to meet a particular of a special situation, the general power under S. 10 of the Act cannot be exercised by the Government during the pendancy of the proceedings under S. 33 of the Act; and (iii) The pendancy of the proceedings under S. 33 of the Act is a relevant factor to be taken into consideration in deciding to refer or decline to refer a dispute under S. 10(1) of the Act and admittedly this not having been taken into consideration by the Government the decision to refer the dispute is vitiated.
4. Learned Counsel for the workmen argued that notwithstanding the pendancy of the proceedings under S. 33 of the Act seeking approval the order of dismissal is effective from the date of the order and the workmen having opposed the application of the Company under S. 33(2)(b) of the Act and having raised a dispute concerning dismissal a reference under S. 10 of Act is competent. It was also argued that the scope of enquiry under S. 33 and 10 of the Act and the object of Ss. 33 and 10 of the Act are different and therefore pendancy of a proceeding under S. 33 of the Act is no bar for referring the dispute under S. 10 of the Act for adjudication. It was further maintained that pendancy of proceedings under S. 33 of the Act has no relevance in deciding to refer or not to refer a dispute under S. 10 of the Act and the order now made referring the dispute is not in any way vitiated.
5. We may with advantage refer to Ss. 10 and 33(1)(2)(b) of the Act before considering the contentions of the parties. Section 10 reads :
'10. (1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time by order in writing :
(a) refer the dispute to a Board for promoting a settlement thereof; or
(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for enquiry; or
(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication, or
(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication :
Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under Clause (c) :
Provided further that where the dispute relates to a public utility service and a notice under S. 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced.
(1A) xx xx xx
(2) xx xx xx
(3) xx xx xx
(4) xx xx xx
(5) xx xx xx
(6) xx xx xx
(7) xx xx xx.'
6. Section 10(1) provides that where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time by order in writing refer the dispute to one or the other authority specified in Cls. (a) to (d). This Section is of basis importance in the scheme of the Act. It shows that the main object of the Act is to provide a cheap and expeditious machinery for the decision of all industrial disputes by referring them to adjudication, and thus avoid breach of industrial peace resulting from frequent lock-outs and strikes. It is with that object that reference is contemplated not only in regard to existing industrial disputes but also in respect of disputes which may be apprehended. This section confers wide discretion on the Government either to refer or to refuse to refer an industrial dispute as therein provided. Naturally this wide discretion has to be exercised by the Government bona fide and on a consideration of relevant and material facts.
7. 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 specified therein 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, if it is apprehended as imminent and requires resolution in the interest of industrial peace and harmony. S. 10(1) of the Act 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 adequacy or sufficiency of the material on which the opinion was formed is beyond the pale of judicial scrutiny. If the action of the Government 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 decided 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 vide State of Bombay v. K. P. Krishnan [1960-II L.L.J. 592]. Whether the appropriate Government having once decided not to refer a dispute for adjudication has the competence to refer the dispute came up for consideration before the Supreme Court. In answer to this question the Supreme Court observed 'the expression at any time' in S. 10(1) of the Act will clearly negative the contention that once the Government declines to make a reference under S. 10(2) of the Act in respect of the same dispute, gets exhausted. Such a construction would denude a very vital power conferred on the Government in the interest of industrial peace and harmony and it need not be whittled down by interpretative process' and held that the Government has the competence vide A. S. Production Agencies (P) Ltd. v. Industrial Tribunal, Haryana and others [1979-I L.L.J. 1]; Western India Match Company Limited v. Western India Match Company Workers Union [1970-II L.L.J. 256] and Binny Limited v. Their Workmen : (1972)ILLJ478SC . It is therefore clear that the power under S. 10(1) of the Act, in making a reference or declining to make a reference of a dispute under S. 10(1) of the Act is an administrative function of the Government and this power can be exercised at any time. Government is not required to give any reasons when it decides to make a reference of the dispute for adjudication under S. 10(1) of the Act. However, under S. 12(5) of the Act, if the Government declines or decides not to make a reference it has to record its reasons and communicate the same to the parties. In deciding not to make a reference the Government is not bound to rely only on the report of the conciliation Officer under S. 12(4). It would be open to the Government to consider other relevant facts which may come to its knowledge or which may be brought to its notice, and it is in the light of all these relevant facts that it has to come to its decision whether a reference should be made or not.
8. Section 33(1) and (2) of the Act reads :
'33(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before an arbitrator or a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall. -
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending.
(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute or where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman. -
(a) alter, in regard to any matter not connected with the dispute, the conditions of applicable to that workman immediately before the commencement of such proceeding; or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or other wise, that workman;
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.'
9. A reading of the above two sub-sections of S. 33 makes it clear that they are intended to be applied during the pendency of any proceeding either in the nature of conciliation proceeding or in the nature of proceeding by way of reference made under S. 10 of the Act. S. 33(1) of the Act also protects workmen concerned in the main dispute which is pending conciliation or adjudication. The effect of sub-s. (1) is that where the conditions precedent prescribed by it are satisfied, the employer is prohibited from taking any action in regard to matters specified by Cls. (a) and (b) against the workmen concerned in such dispute without the previous express permission in writing of the authority before which the proceeding is pending. In other words, in cases falling under sub-s. (1) before any action can be taken by the employer to which reference is made by Cls. (a) and (b), he must obtain the express permission of the specified authority. Section 33(2) of the Act proceeds to lay down a similar provision and the conditions precedent prescribed by it are the same as those contained in S. 33(1) of the Act. This proviso provides if an action is intended to be taken by an employer against any of his employees which falls within the scope of Clause (b) he can do so, subject to the requirements of the proviso. If the employee is intended to be discharged or dismissed, an order can be passed by the employer against him, provided he has paid such employee the wages for one month, and he has made an application to the authority before which the proceeding is pending for approval of the action taken by him. It is settled by series of decisions of the Supreme Court that the requirements of the proviso have to be satisfied by the employer on the basis that they form part of the same transaction. The employer must either pay or offer the salary for one month to the employee before passing an order of discharge or dismissal and must also apply to the specified authority for approval of his action at the same time or within reasonable time. Thereafter, if approval is granted it takes effect from the date of the order passed by the employer and if the approval is not granted, the order of dismissal or discharge passed by the employer is wholly invalid or inoperative and the employee can legitimately claim to continue to be in the employment notwithstanding the order passed by the employer dismissing or discharging him. 'In other words approval by the prescribed authority makes the order of discharge or dismissal effective, but in the absence of approval such an order is invalid and in-operative in law'. It is therefore clear that S. 33 of the Act imposes a ban on the employer exercising his common law statutory, or contractual right to terminate the services of the employees according to the contract or the provisions of law governing such service. In all cases where industrial disputes are pending between the employers and their employees, the Legislative thought it was necessary that such dispute can be adjudicated upon by the Tribunal in a peaceful atmosphere undisturbed by any subsequent cause for bitterness or unpleasantness. However, if the adjudication of such disputes takes a long time, the employers cannot be prevented absolutely from taking action. The Legislature, therefore, devised a formula for reconciling the need of the employer to have liberty to take action against his employees, and the necessity for keeping the atmosphere calm and peaceful pending adjudication of industrial disputes. In regard of actions covered by S. 33(1) of the Act previous permission has to be obtained by the employer, while in regard to actions falling under S. 33(2) of the Act, he has to obtain subsequent approval vide Tata Iron and Steel Company Limited v. S. N. Modak [1965-II L.L.J. 128]. The Supreme Court had to consider whether Labour Appellate Tribunal has jurisdiction to impose condition when granting permission under S. 33 of the Industrial Disputes (Appellate Tribunal) Act, 1950 in Automobile Products of India Limited v. Rukmaji Bala and others [1955-I L.L.J. 346]. After referring to the scheme of Industrial Disputes Act of 1947 and the Industrial Disputes (Appellate Tribunal) Act, 1950, the Supreme Court has observed that the provisions of Ss. 33 and 33A of the 1947 Act correspond to and are in paramateria with the provisions of Ss. 22 and 23 of the 1950 Act and are more or less in similar terms and S. 22 of the 1950 Act and S. 33 of the 1947 Act which impose a ban on the ordinary law governing contract of employment also provide for the removal of that ban by the granting of express permission in writing in appropriate cases by the authority concerned therein. The purpose of these two sections being to determine whether the ban should be to remove or not, all that is required of the authority exercising jurisdiction under these sections is to accord or with-hold permission. The Court has further observed that there being no machinery provided in S. 33 of the 1947 Act or S. 23 of the 1950 Act for enforcing the decision of the authority named in those sections also indicates that those sections only impose a ban on the right of the employer and the only thing that the authority is called upon to do is to grant or withhold the permission, i.e., to lift or maintain the ban and therefore held that the orders of the Labour Appellate Tribunal imposing conditions as prerequisite to grant permission to the Company was without competence. The Supreme Court has pointed out in Management Hotel Imperial, New Delhi and others v. Hotel Workers Union [1959-II L.L.J. 544] that S. 33 of the 1947 Act, has brought about a fundamental change in the relationship of master and servant and the power of the master to dismiss or discharge the servant - the undisputed common law right of the master to discharge or dismiss his servant for proper cause has been subjected to a ban under S. 33. The master can after holding an enquiry temporarily terminate the relationship of master and servant by suspending the employee pending proceedings under S. 33. If the Tribunal grants the permission the suspended contract would come to an end and there is no obligation to pay any wages after the date of suspension. If, on the other hand, the permission is refused, the suspension would be wrong and the workman would be entitled to all his wages from the date of suspension.
10. What emerges from these decisions is that an employer has a right to dismiss his servant for proper cause. This right of the employer is subjected to a ban under S. 33(2)(b) of the Act. He has therefore the right to suspend or terminate, temporarily, the relationship of master and servant from the date of the order of dismissal subject to the result of the proceedings under S. 33 of the Act so that there will be no obligation on him to pay wages and no obligation on the servant to work. If the Tribunal gives permission it takes effect from the date of the order. But if permission is refused the order of discharge or dismissal is invalid and inoperative in law and the workman would be entitled to all the wages as if he had not been discharged or dismissed. Under S. 33(2)(b) of the Act, the authorities specified therein can only grant or withhold the permission. In otherwords, the said authorities can lift the ban or maintain the ban. Section 33(2)(b) of the Act has not conferred on the authorities any general power of adjudication of disputes between the parties. The only limited power conferred is to lift the ban or maintain the ban. No machinery is also provided to enforce the order made under S. 33(2)(b) of the Act. Even after the approval is given it is open to the workmen concerned to raise a dispute concerning his discharge or dismissal and approach the Government with a request to refer the dispute under S. 10 of the Act for adjudication.
11. The principle governing the jurisdiction of the Tribunal in adjudicating disputes referred under S. 10(1) of the Act came up for consideration before the Supreme Court in a series of cases. The Supreme Court after referring exhaustively to all the cases has laid down the principles enunciated in M/s. Firestone Tyre and Rubber Company of India Private Limited v. The Management and others [1973-I L.L.J. 278] at para 29 at pages 293, 294 which reads :
'(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.
(3) When a proper enquiry has been held by an employer, and the finding of misconduct is plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.
(4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer an employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial function does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.
(9) Once then misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation.
(10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in The Management of Panitole Tea Estate v. The Workmen, [1971-I L.L.J. 233] within the judicial decision of a labour Court or Tribunal.'
This was the law prior to 15th February, 1971 applicable to all industrial adjudication arising out of dismissal or discharge. By S. 3 of Industrial Disputes (Amendment) Act 1971, which came into force on 15th December, 1971, S. 11A was added. Section 11A reads :
'11-A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen :-
Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and in the course of adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of dismissal or discharge was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workmen on such terms and conditions, if any as it thinks fit, or give such other relief to the workmen including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require :
Provided that in any proceeding under this Section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.'
12. According to the decisions of the Supreme Court prior to 15th December, 1971, in cases where a proper domestic enquiry had been held the Tribunal had no jurisdiction to interfere with the finding of misconduct except under certain circumstances. The position further was that the Tribunal had no jurisdiction to interfere with the punishment imposed by a employer in cases where the misconduct is established in a proper domestic enquiry as also in cases where the Tribunal finds such misconduct proved on the basis of evidence adduced before it. These limitations on the power of the Tribunals were recognised by the Court mainly on the basis that the power to take disciplinary action and impose punishment was part of the managerial functions. That means that the law, as laid down by the Court over a period of years, had recognised certain managerial rights in an employer. This position has now been fully changed by S. 11A. This section has the effect of altering the law by abridging the rights of the employer in as much as it gives power to the Tribunal for the first time to differ both on a finding of misconduct arrived at by an employer as well as the punishment imposed by him vide Workmen of F.T. & R. Company of India Private Limited v. The Management and others : (1973)ILLJ278SC .
13. It was contended on behalf of the Company that provisions of S. 11A are also attracted to the proceedings before the Tribunal under S. 33(2)(b) of the Act. The provisions of this section are attracted only when an industrial dispute of the type mentioned therein is referred to the Labour Court, Tribunal or National Tribunal for adjudication. The proceedings under S. 33(2)(b) of the Act are taken on an application by the employer for approval of the action taken by him. Those proceedings are not adjudication proceedings on a reference under S. 10 of the Act. Therefore, it follows that an application made by an employer under S. 33(2)(b) for approval must dealt with according to the principles laid down by the Supreme Court in various decisions. No change has been effected in that section by the amending Act. Even in cases where no enquiry has been held by the employer before passing an order of dismissal or discharge it is open to him to adduce evidence for the first time before the Tribunal in justification of the action taken. Section 33(2)(b) of the Act only imposes a ban. An order of dismissal or discharge even with the approval of the Tribunal can form the subject of a dispute, and as such referred under S. 10 of the Act for adjudication vide Workmen of F.T. & R. Company of India Private Limited v. The Management and others (supra). It is, therefore, not possible to accept the contention urged on behalf of the Company that the provisions of S. 11A are also attracted to the proceedings under S. 33(2)(b) of the Act.
14. It is therefore clear that the scope of an enquiry on a reference under S. 10 of the Act is much wider. The Tribunal adjudicates the dispute referred to it. The decision is binding on the parties and is executable. That apart, the Tribunal can substitute its own finding even if the charges are proved or alter the punishment. But in proceedings on an application under S. 33(2)(b) of the Act, the Tribunal can only lift or maintain the ban imposed on the employer and until orders are made on an application under S. 33(2)(b) of the Act, the employer has a right to temporarily terminate relationship of master and servant. The order of discharge or dismissal takes effect and the relationship of employer and employee comes to an end. The employer is not therefore bound to pay wages to the employee and the employee is also not bound to work from the date of the order. It is only when the Tribunal rejects the application under S. 33(2)(b) of the Act and declines to accord permission the order of dismissal or discharge becomes ineffective and the employee will be entitled to his wages as if there was no order discharge or dismissal. It therefore follows that immediately an employer makes an order discharging or dismissing a workman though the said order is subject to the Tribunal according permission under S. 33(2)(b) of the Act, the said order or discharge or dismissal becomes effective from the date it is made and gives rise to an industrial dispute. It is therefore open to the workman to raise a dispute with reference to his discharge or dismissal and request the Government to make a reference under S. 10(a) of the Act. The Government is therefore competent to refer such a dispute for adjudication under S. 10(1) of the Act notwithstanding the fact that the employer's application under S. 33(2)(b) of the Act for approval is pending before the Tribunal. In Hindustan General Electrical Corporation Limited v. State of Bihar and others [1965-II L.L.J. 97] on which reliance was placed on behalf of respondents. Patna High Court has also held that pending disposal of an application for approval of dismissal under S. 33(2)(b) of the Act it would be competent to the State Government to refer the industrial dispute in regard to justification of such dismissals for adjudication under S. 10(1) of the Act. The competence of the State Government to make such reference could not be tested by subsequent possibilities. Even if the approval is not granted ultimately the competence of the State Government to make such reference pending such application could not be challenged on the ground that the concerned workman could not be considered to have been dismissed until the approval is granted. On behalf of the Company reliance was placed on M/s. Mitsubishi Shoji Kaisha Limited v. The Fourth Industrial Tribunal of West Bengal and others [1973-I L.L.J. 146]. In that case the Company made an application under S. 33(2)(b) of the Act, for approval of the dismissal of its workmen. According to the Company, the workmen or any one on his behalf did not raise any dispute in regard to dismissal. Without waiting for a decision on the application for approval of dismissal, a reference was made by the Government under S. 10 of the Act, to the Industrial Tribunal. A preliminary objection was raised on behalf of the Company that there was no industrial dispute and as such there could not be a reference under S. 10 of the Act. It was answered against the Company. The Company challenged the said order under Art. 226 of the Constitution. In that case no dispute had been raised by any one is clear from the following observation in the judgment. 'In this case there is a specific finding that no dispute was raised by the workman concerned or by a Union regarding his dismissal. Therefore, reference of issue in the facts and circumstances of the case as an existing dispute under S. 10 was illegal and improper'. The Court has however further observed that '..... that until and unless the application under S. 33(2)(b) is disposed of, there cannot be a reference to the Tribunal'. The decision is mainly on the facts of the said case. In our considered view the decision does not lay down the law correctly.
15. We have therefore no hesitation in holding that the pendency of the proceedings under S. 33(2)(b) of the Act, does not in any way affect the competence of the Government make a reference under S. 10(1) of the Act, for adjudication by a Tribunal.
16. The next argument advanced was that even if the Government has the competence to make a reference during the pendency of the proceedings under S. 33(2)(b) of the Act, the pendency of such proceedings is a matter to be taken into consideration, while deciding to refer or not to refer the dispute under S. 10(1) of the Act, and admittedly this fact not having been placed before the Government, the reference now made is vitiated. We have already noticed that the Government exercises purely administrative function while acting under S. 10(1) of the Act. It is not required to record any reasons while making a reference. It is required to consider whether an industrial dispute exists or is apprehended and whether it is expedient to refer the same for adjudication. By making a reference the parties are compelled to go to an independent authority for adjudication of their dispute. By making a reference Government does not in any way decide the dispute between the parties. But by refusing to make a reference the parties are denied an opportunity to go before an independent Tribunal for adjudication of the dispute. It is therefore that reasons are required to be recorded under S. 12(5) of the Act. When the Government does not make a reference Court cannot scrutinise the order of reference closely to see if there was any material before Government to support its conclusions as if it was a judicial or quasi judicial determination. If the dispute was an industrial dispute, its factual existence and the expediency of making a reference in the circumstances of a case are matters entirely for the Government to decide upon and it is not competent for the Court to hold the reference as bad because in its opinion Government should have taken into consideration some other material also sufficiency or otherwise of the material before the Government is beyond judicial scrutiny. That apart the competence of the Government to make a reference under S. 10 of the Act is in no way affected by the pendency of the proceedings under S. 33(2)(b) of the Act. Therefore, nonconsideration of the pendency of the proceedings under S. 33(2)(b) of the Act does not vitiate the reference under S. 10 of the Act.
17. Let us next consider the scope of S. 2A of the Act. S. 2A of the Industrial Disputes Act came into force on 1st December, 1965 and it reads as follows :
'Dismissal etc., of an individual workman to be deemed to be an industrial dispute -
Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workman is a party to the dispute.'
18. In interpreting the term 'Industrial Dispute' as defined in S. 2(k) it has been held that even where the dispute relates to a single workman it would be an industrial dispute if that dispute is espoused by the general body of the employees or by a substantial number of workman. Before the introduction of S. 2A an individual workman who was discharged, dismissed or retrenched or whose services were otherwise terminated and whose case was not espoused by any Labour Union or by a substantial number of workman had no remedy. It is to deal with such a contingency S. 2A was enacted. After the introduction of S. 2A even an individual workman can raise a dispute without the same being sponsored by a Union or substantial number of workman. In otherwords, the ambit and definition of 'industrial dispute' is enlarged by the introduction of S. 2A of the Act and in the circumstances specified therein an individual workman can raise an industrial dispute and request the Government to make a reference under S. 10(1) of the Act for adjudication but it is in the discretion of the Government to make or not to make a reference. The individual workman has therefore only a right to raise a dispute after the introduction of S. 2A of the Act. He has no right to get the dispute referred under S. 10 of the Act. It is in the discretion of the Government to make the reference or not to make the reference under S. 10 of the Act for adjudication vide M/s. Western India Watch Company Limited v. The Western India Watch Company Workers Union and Others (supra).
19. A Division Bench of this Court has also held that S. 11A of the Act deals only with the power of the adjudicating authority in deciding the dispute on reference and does not vest any right or create any remedy in favour of the discharged or dismissed employee nor such an employee can compel the Government to make a reference otherwise than in accordance with S. 10 of the Act. The view expressed by Rama Jois, J. : to the contrary in Hariba v. K.S.R.T.C. [1983-II L.L.J. 476] : Basavaraj v. Secretary to Government, Social Welfare and Labour Department and another [(1984) 65 F.J.R. 296] : Workmen of Mysore Lamp Works v. State and another [I.L.R. 1984 (2) Kar. 778] in our considered view is not correct and does not lay down the law correctly. As pointed on behalf of respondents another Division Bench of this Court in Munichowdappa v. State of Karnataka [1985-I L.L.J. 356] has dissented from the view expressed in these three cases and we therefore think it not necessary to refer to them in detail. We are in agreement with the view expressed in Munichowdappa's case.
20. While making a reference the Government is not adjudicating on any dispute. The Government is only allowing the parties to go before an Independent Tribunal or authority for adjudication of their disputes, referred on being satisfied that a dispute exists or is apprehended and it is expedient to refer the same for adjudication leaving it open to the parties to raise all their contentions before the Tribunal or authority. The adequacy or sufficiency of the material on which the Government forms the opinion is not open to judicial scrutiny.
21. We are therefore satisfied that if the pendency of the proceedings under S. 33(2)(b) of the Act is not taken into consideration by the Government in deciding to make a reference under S. 10(1) of the Act, its order does not stand vitiated on that ground. It is however desirable that the pendency of the proceedings under S. 33(2)(b) of the Act are brought to the notice of the Government when it is called upon to make a reference under S. 10 of the Act.
22. Grant of approval under S. 33(2)(b) of the Act does not conclude the dispute and the parties would be free to seek reference under S. 10 of the Act. Proceedings under S. 10 of the Act, settle the dispute finally. Resolving the dispute finally and expeditiously is very desirable. Therefore an interpretation which advances this object should be preferred. On the dates when the Government made the two references much progress was not made in the proceedings under S. 33(2)(b) of the Act. Therefore, even if the pendency of the proceedings under S. 33(2)(b) of the Act was brought to the notice of the Government it could not have the effect of persuading the Government not to make the reference. Hence, we are of the opinion that these are not fit cases for interference with the impugned orders of the Government.
23. The scope and object of proceedings under S. 10 of the Act and S. 33(2)(b) of the Act are different. Whether the proceedings before the authorities are under Ss. 10 or 33(2)(b) of the Act, if the enquiry is defective or if no enquiry is held, the entire case would be open before the authority concerned and the employer would have to justify or satisfy the Tribunal by producing evidence that the order of discharge or dismissal was proper. In proceedings under S. 33(2)(b) of the Act the ban imposed on the employer can only be removed or maintained. No other order can be made or relief given by the authorities in these proceedings. Even if the ban is lifted, the dispute is not finally settled and the employee can request for reference under S. 10 of the Act. The power of the authorities in proceedings under S. 10 of the Act are wide and more so after S. 11-A of the Act was introduced and the other is enforceable. The pendency of the proceedings under S. 33(2)(b) of the Act is no bat for the exercise of the power under S. 10 of the Act. In these circumstances it is desirable and proper that both the proceedings under Ss. 33(2)(b) and 10 of the Act should not continue simultaneously. Necessarily the proceedings under S. 33(2)(b) of the Act should stand concluded immediately on a reference being made under S. 10 of the Act. We may point out that Legislature has already provided in S. 10(6) of the Act that proceedings before the Labour Court or the Tribunal stands quashed on the Central Government making a reference of the same dispute under S. 10A of the Act and S. 20(2)(a) of the Act provides that the conciliation proceedings stand concluded as the State Government referring the Same dispute for adjudication under S. 10(1) of the Act. It is better if a similar provision is made for automatic termination of proceedings under S. 33(2)(b) of the Act on a reference of the same dispute being made under S. 10 of the Act.
24. Though we have not agreed with all the reasons given by the learned single Judge. We have agreed with his final decision for the reasons discussed above.
25. The appeals fail and are dismissed. No costs.