Murlidhar Rao, J.
1. This writ petition has been referred to a Division Bench by Bopanna, J., by his order dated 2nd April, 1982, since his Lordship felt that the interpretation placed by his Lordship in Raghavendra Rao, N. S. v. State of Karnataka & Others (1981 (1) Kar. L.J. 56), requires to be examined by a larger Bench, as the question involved, is of considerable importance. His Lordship has also referred another matter to a Division Bench in W.P. No. 5073 of 1980.
2. The sum and substance of the order of reference is, whether it is incumbent on the Government, to examine the gravity of punishment imposed on the workman, objectively before it refuses to make a reference under Ss. 10 and 12(5) of the Industrial Disputes Act (hereinafter referred to as the Act). The brief facts of the case are that the petitioner was appointed as a security guard in the security department of the third respondent - the management of the Indian Telephone Industries Ltd. (hereinafter referred to as the I.T.I.), by producing the true copy of certificate issued by the Officer Commanding, Depot, Regiment (Crops of Signals), Jabalpur, dated 23rd July, 1968. In his application for appointment, he had stated that he was an ex-army personnel having served the Unit Crops of Signals from 18th June, 1957 to 13th June, 1972 with Army No. 6240571. The petitioner was given appointment, subject to the verification of the certificate, produced by him. The ITI made a reference to the concerned military authorities, who vide their letter No. 555/Wel/Gen/NER dated 24th January, 1977, confirmed that Army No. 6240571 pertains to Ex-L/NK. H. Shankaran. On a further reference by the ITI, it was confirmed that neither Army No. 5240571 nor Army No. 6240571 pertain to Crops of Signals. Thereafter, the petitioner was asked to produce the original certificate of service, said to have been issued by the Officer Commanding, Depot, Regiment (Crops of Signals), Jabalpur. The petitioner did not produce the original certificate for verification. In this view of the matter, the ITI thought it fit to hold a departmental enquiry for the alleged misconduct. Accordingly on 25th August, 1977, a chargesheet was issued directing the petitioner to submit his explanation as to why disciplinary action should not be taken against him under pars 13.4 and 13.11 of the Standing Orders. The petitioner submitted his explanation on 1st September, 1977. Thereafter an enquiry was conducted against the petitioner and a final order was passed dismissing the petitioner with effect from 3rd May, 1978. On 24th May, 1979 the petitioner filed an application under S. 12 of the Act, before the Assistant Labour Commissioner and Conciliation Officer, Bangalore. In his application before the Conciliation Officer, the petitioner did not deny that the true copy of the certificate filed by him for securing the job was not genuine. Indeed, he did not say a word about certificate. His only contention was that the enquiry was not proper and that he belongs to schedule caste and he pointed out certain other infirmities in the enquiry. The ITI filed its objections contending that there was a fair and impartial enquiry and that the enquiry was conducted in conformity with the principles of natural justice. Thereafter the petitioner filed his objections to the written statement filed by the ITI. The Assistant Labour Commissioner sent a factual report under S. 12(4) of the Act, pointing out that there is no possibility of a settlement and the attempt was treated as failed. The Government, which considered the report referred to above, thought it fit not to make a reference. Accordingly, it issued an endorsement to the petitioner on 4th February, 1981 (An..'H'). It is the validity of this endorsement issued under S. 12(5) that is challenged in this writ petition. The endorsement reads thus :-
Sub :- I.D. between the workmen and the management of Indian Telephone Industries, Bangalore, regarding termination of services of Sri Munichowdappa.
With reference to the above subject, I am directed to state that Government consider that the dispute in question does not merit reference for adjudication for the reason that the workman has produced false army certificate for getting the appointment, and the services were terminated after conducting regular enquiry and found guilty of charges framed against him.
Social Welfare and Labour Dept.,
3. Though no formal order regarding rule is issued, nevertheless, since the matter has been referred to a Division Bench, we assume that rule has been issued and proceed to dispose of the matter on merits and the points of law, referred to a Bench.
4. Sri K. Subba Rao, learned counsel appearing for the petitioner urged that the order at Annexure 'H' is illegal as the Government, in the garb of assigning reasons, has adjudicated the matter, which the Tribunal alone is competent to do; hence the endorsement An.'H' is liable to be quashed. Alternatively, he urged the following two contentions :-
(1) In view of S. 11-A of the Act, the Government is 'obliged' to make a reference, in cases of discharge or dismissal and it has no power to refuse; in other words, S. 12(5) stands impliedly amended in case of discharge or dismissal of a workman;
(2) After the introduction of S. 11-A, the discharged or dismissed workman has a right to claim reference and the refusal by the Government affects his right to a remedy and therefore the power conferred on the Government under S. 10 to that extent ceases to be discretionary.
5. The alternative contentions of Sri Subba Rao, indeed, are elaboration of the points mentioned in the order of reference.
6. Taking the first contention which deals with the facts of the case, we have to bear in mind that the power given to the State Government under S. 10 is discretionary, administrative and based on subjective satisfaction of the Government in regard to the existence of industrial dispute or the apprehension of the existence of the industrial dispute. The words 'industrial dispute' have been defined in S. 2(k) of the Act; and by definition under S. 2-A, a dismissal of an individual workman is also deemed to be an industrial dispute. Therefore, the existence or apprehension of industrial dispute contemplated by S. 10 includes the definition in s. 2(k) as also 2-A. That the power is administrative, and discretionary based on the subjective satisfaction of the Government is well enunciated by series of judgments of the Supreme Court in State of Bombay v. K. P. Krishnan and others [1960-II L.L.J. 592]; Bombay Union of Journalists and others v. The State of Bombay and another [1964-I L.L.J. 351]. That the act is purely administrative is an indisputable proposition laid down in Madras State v. C. P. Sarathy [1953-I L.L.J. 174]. The effect of these decisions of the Supreme Court has been summed up in Bharat Electronic Employees Union v. State of Mysore and another (1970(1) Kar. L.J. 96). Narayana Pai, J. (as he then was), after quoting sub-s. (5) of S. 12 which deals with the power of refusal of reference, has observed as follows :
'It has also been clearly and emphatically stated by the Supreme Court in two rulings in State of Bombay v. K. P. Krishnan (supra) and Bombay Union Journalists v. State of Bombay (supra), that although Sub-s. (5) of S. 12 imposes a certain duty upon a State Government, it is not prevented from acting in the light of the second proviso to S. 10.
That in making or refusing to make a reference under S. 10, the appropriate Government is doing an administrative act is also an undisputed proposition - vide Madras State v. C. P. Sarathy (supra).
In the light of these clear propositions of law, it is of course not possible for this Court to issue a mandamus directing the Government to make a reference. At the highest, if the conditions necessary for making such an order are established, the mandamus could only be in the nature of a direction to reconsider the position. What those conditions are and in what circumstances an order of that type can be made by Courts are also discussed in the first cited two rulings of the Supreme Court.
In stating the principle, their Lordships proceed from the statutory requirement that the appropriate Government refusing to make a reference should record and communicate to the parties concerned its reasons therefor. It is deduced therefore that although it may not be possible for Courts themselves to come to a conclusion that there is a case for reference and direct the appropriate Government to act that view, the reasons on the strength of which the appropriate Government declines to act would be open to scrutiny by Courts. The nature and ambit of that scrutiny is also indicated by the Supreme Court in the above rulings. The normal rule of judging the right or wrong of the acts of statutory functionaries or authorities exercising statutory functions or powers should act on considerations which are relevant to the function or the power and should not act to any extent on considerations which are extraneous. In the special setting of sub-s. (5) of S. 12 of the Industrial Disputes Act, it is pointed out that the reasons stated for the opinion that the Government is not satisfied that there is a case for reference should be reasons directly connected with such absence of satisfaction that is to say, the reasons must have a direct bearing on the issues involved and must lead reasonably to the conclusion that there is no case for reference.
What is stated above is a summary of the principle as formulated by the decisions of the Supreme Court. Mr. Narasimhan has cited certain other decisions of the High Courts to illustrate the application of the said principles to particular situations, viz., those reported in F.T. & R. Co. v. K. P. Krishnan, K.P.W. Union v. Government of Kerala and A. K. Roy v. State of Orissa. These rulings of course do not add to the principles.'
7. Two reasons given by the State Government in Annexure 'H' are - (1) the workman has produced a false Army certificate for getting an appointment and (2) his services are terminated after conducing regular enquiry and found guilty of charges framed against him.
8. Sri Subba Rao criticised the above reasons as virtually dealing with the merits of the case and adjudicating the dispute. We do not agree with this criticism. The fact that the petitioner had produced a false Army certificate for getting appointment, is undisputed, because in his application under S. 12, he did not say that the certificate produced by him was genuine nor has he produced any material to show that the true copy of the certificate produced by him related to him. Therefore, the first reason assigned in the endorsement was an expression of stark reality and a bald fact and was not an adjudication either on merits of the case or on the alleged misconduct. The second reason given in Annexure 'H' was also a narration of fact namely, that the petitioner's service were terminated after conducting regular enquiry in which he was found guilty of the charges. By so expressing, the Government was neither affirming the finding nor was expressing itself, in one way or the other, on the findings arrived at by the Enquiry Officer in the domestic enquiry. In making a reference, the Government can look into the merits of the case is well established by the judgment of the Supreme Court in Bombay Union of Journalists' case (supra). At para 8 of the judgment, while dealing with the scope of Ss. 10(1) and 12(5) of the Act, the Supreme Court has observed thus :
'Besides, in dealing with this 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 S. 10(1) read with S. 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 S. 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 reason why no reference is made, because the object of S. 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 consideration which was irrelevant or foreign, that no doubt, may justify the claim for a writ of mandamus. But the argument that of the pleas raised by the appellants two have been considered and not the third, would not necessarily entitle the party to claim a writ under Art. 226.'
9. In Bharat Electronic Employees Union's case, this Court has observed that 'under S. 12(5), the Government has got to give reasons cannot be disputed. It is a mandatory requirement'. Therefore, the two reasons given in Annexure 'H' are the fulfilment of the mandatory requirement under S. 12(5) and in our opinion, they are not the findings or adjudication on the points in dispute.
10. Sri Subba Rao submitted that the Government has acted on a 'confidential' letter sent by the Conciliation Officer and therefore the endorsement An. 'H' is not passed on the report under S. 12(4) but on extraneous material. There is no specific averments to this effect in the writ petition. Though certain vague allegations are made in para 9, no specific allegation of 'mala fides' or 'collateral consideration' is averred in the petition. The State Government has not filed statement of objections, presumably, because the matter is referred, at the stage of preliminary hearing, after hearing the counsel, for the management. On 12th June, 1981, the Court directed the Government Advocate to take notice for respondents 1 and 2 and produce the records relating to the impugned endorsement. At the hearing, the State Government is not represented and they chose to remain absent. Since the averments in the petition were very vague, we do not consider it necessary to insist on the production of records. As the allegation is vague and no material whatsoever, is produced by the petitioner to show that Government has acted on a 'confidential' communication and not on the report under S. 12(4) of the Act, we reject the said contention.
11. Sri Subba Rao, however, relied on a judgment of this Court in B. Siddoji Rao v. State of Mysore & Others (1969(2) Mys. L.J. 450). In that case, the following words are mentioned in the endorsement issued by the Government :-
'..... as it was proved that the officer was assaulted by the workman and the dismissal of the workman justified.'
In view of the expression 'proved', the Court came to the conclusion that the refusal was founded on the misconduct of the workman and since the Government has reached that conclusion, the reason for refusal under S. 12(5) amounted to the refusal of reference sought by the petitioner, on a matter which had to be adjudicated by the Labour Tribunal. The Court came to the conclusion, that the Government had formed the opinion as to the truth of the allegations and the order of refusal of reference was liable to be quashed. The case on hand is distinguishable, since on facts we have come to the conclusion that the Government has not formed any opinion on the merits of the case, there is no violation of transgression of the requirement of S. 12(5) of the Act.
12. Sri Subba Rao neatly contended that the endorsement at Annexure 'H' is not a speaking order. In making this submission, he relied upon a judgment of the learned single Judge of this Court in V. Shivashankar v. State of Karnataka and others (1981(1) L.I.C. 648), wherein this Court has held that High Court in exercise of its power under Art. 226, can interfere with an endorsement, if in its opinion the order passed by the Government is not a speaking order, that it is based on extraneous, irrelevant or irrational grounds or that it is not bona fide but mala fide. In the said decision, the reason given by the Government was that the workman 'has not made out a prima facie case' to show that the action taken by the management is mala fide. The learned Judge has also referred to the insertion of S. 11-A in the Act. This aspect of the matter will be dealt with separately while dealing with the alternative submission of Sri Subba Rao. However, so far as the requirement of a speaking order is concerned, we are of the view, that the use of the said expression, must be understood as meaning, that the reasons given were not proper as is required under S. 12(5) of the Act; that it must be so is, clear from the fact that the power exercised by the Government under S. 10 being an administrative power, does not call for a speaking order. But for S. 12(5) it would not be obligatory to assign reasons and communicate the same to the party. Indeed, in M/s. Western India Match Co. Ltd., v. The Western India Match Co. Workers Union & Others [1970-II L.L.J. 256 at 262], Shelat, J., has made the following observation at para 9 :
'..... The reason given in these decisions is that the function of the Government either under S. 10(1) of the Central Act or a similar provision in a State Act being administrative, principles such as resjudicata applicable to judicial Acts do not apply and such a principle cannot be imported for consideration when the Government first refuses to refer and later changes its mind. In fact, 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 .....'
13. Therefore, we have no doubt in our mind to hold that so far as the reasons given in Annexure 'H' are concerned, they fully comply with the requirement under S. 12(5) of the Act and it is not possible to say that the reasons assigned therein amount to adjudicating the matter in dispute. Further, in the Labour Court, which has to adjudicate the matter ultimately, the questions that arise for its decision are - (1) Whether the charge of misconduct was properly proved in the domestic enquiry (2) If so, whether the punishment of dismissal was justified regard being had to the gravity of the misconduct and (3) If the answer to question No. (2) is in the negative, what is the proper punishment or relief to be given to the workman
Keeping in view the scope and power of the Tribunal under S. 11-A, it cannot be said that the two reasons mentioned in Annexure 'H' deal with the above referred points. Hence, the first contention urged by Sri Subba Rao has to fail and we hold that the reasons assigned in An. 'H' do not suffer from any infirmity and there is no contravention of S. 12(5) and it is unassailable.
14. This takes us to a more important question, which has been referred to us, by the learned single Judge and which has been incorporated in the two alternative submissions made by Sri Subba Rao.
15. Section 10(1) to the extent, it concerns us reads thus :-
'10. Reference of disputes to Boards, Courts or Tribunals. (a)
(2) 'Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time', (aa) 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 inquiry; 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) '(b), Provided further that' (c) 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 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'.
16. A bare reading of S. 10(1) of the Act leads to the following propositions as laid down by the Supreme Court in C. P. Sarathy's case :-
'(i) The Government should satisfy itself on the facts and circumstances brought to its notice in its subjective opinion that an 'industrial dispute' exists or is 'apprehended';
(ii) the factual existence of a dispute or its apprehension and the expediency of making reference are matters entirely for the Government to decide;
(iii) the order making a reference is an administrative act and it is not a judicial or a quasi-judicial act;
(iv) the order of reference passed by the Government cannot be examined by the High Court in its jurisdiction under Art. 226 of the Constitution to see if the Government had material before it to support the conclusion that the dispute existed or was apprehended.'
(Extracted from the Law of Industrial Disputes, Third Edition, Volume-1-572).
10. Section 11-A was introduced by an amendment Act 45 of 1971, which came into force w.e.f. 15th December, 1971. The statement of objects and reasons for this amendment were based on the recommendations of the International Labour Organisation. Para 3 of the statement of objections and reasons reads thus :-
'3. In accordance with these recommendations, it is considered that the Tribunal's power in an adjudication proceeding relating to discharge or dismissal of a workman should not be limited and that the Tribunal should have the power, in cases wherever necessary to set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. For this purpose, a new S. 11-A is proposed to be inserted in the Industrial Disputes Act, 1947.' Section 11-A read thus :
'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 Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge and dismissal and direct reinstatement of the workman on such terms and conditions, if any, it thinks fit, or give such other relief to the workman 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 to the matter.'
17. A reading of this section along with the statement of objects, makes the intent clear that the power exercised by the Tribunal on setting aside the order of discharge or dismissal should be enlarged and the Tribunal must be given powers to grant further reliefs, which the circumstances of the case warrant. Therefore, S. 11-A comes into operation, only when a dispute which has been referred by the State Government under S. 10 is adjudication on merits, and thereafter if the adjudicating authority holds that the order of discharge or dismissal was not satisfactory, it may set aside the order of discharge or dismissal and direct the reinstatement or grant such other reliefs as enumerated in the latter part of S. 11-A. That these are the powers that are to be exercised by the adjudicating authority, after the dispute is referred and secondly after the penalty of discharge or dismissal awarded in the domestic enquiry is set aside, is a clear manifestation of the wording used in that section. While S. 10 gives power to the Government to exercise its discretionary power, S. 11-A lays down the powers exercisable by a Court or Tribunal while adjudicating after receiving the reference under S. 10. The question is whether this has to constitute a relevant circumstance so as to make it incumbent on the Government to refer a dispute in cases of discharged or dismissed employees. It was in this context Sri Subba Rao relied upon the judgment of the Kerala High Court in Workmen of Cochin Chamber of Commerce v. State of Kerala [1976-II L.L.J. 108 at 114]. In the said decision, the learned Judge, after narrating the contentions urged by the petitioner, has observed thus at para 9 :
'...... I am in agreement with learned counsel for the petitioners that the order of the Government shows that the Government has chosen to apply a wrong test and the approach is quite irrational. The reasons stated by it are not supported by the facts stated in the very order and the reasons do not lead to the conclusion or decision that there need be no reference.'
Having said so, in the operative portion of the order, the learned Judge directed the Government to 'go into the matter afresh and decide the question of reference under S. 10(1) of the Act. Reasons under S. 12(5) of the Act will be recorded and communicated in accordance with law in the event Government feels no reference is called for ....'
It appears from the judgment that the Advocate appearing for the petitioners drew the attention of the Court to the scope of S. 11-A of the Act and contended that the punishment imposed on the workmen by the management was also a ground which had to be considered by the Government while making a reference under S. 10. The same does not form part of the decision of the learned Judge. The learned Judge has not directed the Government, in the final order to consider the effect of S. 11-A while re-examining the matter.
Therefore, we are of the view that the said decision is not an authority to hold that while refusing to make a reference, the State Government should take into consideration the powers of the Labour Court under S. 11-A of the Act.
18. The next ruling relied on by Sri Subba Rao was Woollen Mill Kamdar Sangh, Jamnagar v. State of Gujarat and another [1977-II L.L.J. 353]. In the said decision, the Division Bench, after considering the judgment of the Supreme Court in K. P. Krishnan's case, has made the following observation : at para 5 on pages 356 and 357 :
'.... What lies in the ambit of the Government's jurisdiction for not making a reference is to consider whether a prima facie case for reference existed or not and whether certain grounds, as pointed out by their Lordships, it was not expedient to make a reference as for example, when the claim was patently frivolous clearly belated or due to its adverse impact on the industrial relations in the State. Therefore, it is on these mandatory guide lines that this statutory discretion has to be exercised by taking into consideration only these relevant guide lines. It is true that as pointed out at page 1622, no elaborate reasons would be necessary but whatever reasons are given have to stand a public scrutiny and even a writ of mandamus would lie if the reasons given show that the Government took into account a consideration which was irrelevant or foreign or that the Government had gone beyond its province by reaching final decisions on the questions of law or disputed questions of act.'
After making this observation, the Court remitted the matter to the State Government for passing a fresh order for reconsideration in the light of the aforesaid observations within a period of one month from that date. In this case also, it is not held by the Court that the State Government must consider the power to be exercised by the Tribunal under S. 11-A at the stage of refusing a reference under S. 12(5).
19. The above two decisions have been referred and followed by a learned single Judge of the Madras High Court in K. Ramaswamy v. Government of Tamil Nadu and another [1979-II L.L.J. 304]. In para 11 of the said judgment, the learned Judge has observed thus at page 311.
'It is, therefore, clear that in this case it is not seen from the order that the Government had kept in mind the provisions of S. 11-A of the Industrial Disputes Act. No doubt, in para 2 of the order the Government have stated that it is clear that the charges against the workman have been proved in the properly conducted enquiry. Even if it is assumed from this statement that the Government was satisfied on a prima facie appraisal of the evidence that the finding of guilt in the domestic enquiry was correct, the order does not show that the Government considered the question whether the punishment was justified by the proved misconduct. A perusal of S. 11-A makes it clear that the Labour Court could even hold that the proved misconduct did not merit punishment by way of discharge or dismissal, and therefore could award to the workman any lesser punishment. The section confers power on the Tribunal to interfere with the punishment imposed in the domestic enquiry and alter the same. This being the legal position one of the relevant factors which the Government should have borne in mind before refusing to refer the dispute for adjudication was the question whether the proved misconduct did merit the punishment of discharge or dismissal. In this case, the impugned order, as I have already stated, does not show that this fact was taken into consideration before the passing of the order.'
20. This, with due respect to the learned Judge, in our opinion, is not a correct approach to the interpretation of S. 12(5). The order of 'refusal' need not indicate in detail the facts that are taken into consideration for refusing a reference. It may be that while making a reference, if Government takes into consideration the gravity of punishment, the same cannot be assailed as an irrelevant fact, but to put it assertively that if the order of 'refusal' does not show that this 'exercise of power of Tribunal' is taken into consideration hence the order of reference would be bad and unsustainable, cannot be legally sound. We respectfully disagree with this view. It is well settled that the Government has a discretion in the matter and it can, if it thinks inexpedient to do so if it thinks that the claim is highly belated, it need not make a reference. Its decision, being administrative, can only be attacked if considerations, which are irrelevant or foreign, are taken into account.
21. The next case cited by Sri Subba Rao, which is also cited in the order of reference, is the case reported in Raghavendra Rao N. S. v. State of Karnataka & Others (1981(1) Kar. L.J. 56). In this case alone, for the first time a learned single Judge of this Court has held that after coming into force of S. 11-A in the Statute book, the Government cannot decline to make a reference without examining the gravity of punishment imposed on the workman. In other words, the learned single Judge is of the opinion that the gravity of punishment is also one of the relevant considerations to be looked into by the Government at the time of refusing a reference.
22. In the instant case, we are dealing with an order refusing to make a reference; the only mandatory requirement is that the order should give reasons, and such reasons should not result in the adjudication of the points in dispute. The reasons to be given, are indeed beyond the scope of judicial scrutiny, unless it is shown that they are irrelevant or extraneous to the decision. The nature and scope of this power has been enunciated in detail in paras 11 and 16 of the judgment by the Supreme Court in State of Bombay v. K. P. Krishnan (supra). It appears to us that it would not be possible for the Court to lay down the relevant factors, in exercise of this discretionary or administrative power, nor can a mandamus be issued to consider a particular factor, to wit scope of S. 11-A, before refusing to make a reference. In our opinion, this Court, while exercising its power under Art. 226, cannot embark on the problem of investigating the relevant factors, and thrust the same on the State Government, to take a decision under S. 12(5) of the Act.
23. That the power under S. 10(1) of the Act is administrative in character and the Courts cannot canvass it closely, as if it is judicial or quasi-judicial order is well settled by the decision of the Supreme Court in Shambunath Goel v. Bank of Baroda [1978-I L.L.J. 484] and M/s. Avon Service Production Agencies v. Industrial Tribunal, Haryana [1979-I L.L.J. 1]. Thus we are of the view that while the Courts can quash an order of refusal, passed under S. 12(5) of the Act, if it is shown that the same is actuated by mala fides or that irrelevant or extraneous factors have been considered, we cannot, enunciate or lay down the factors which would be or may be relevant. Court can neither tie down the Government's hands nor enlarge them, in the exercise of their discretionary power. Hence any observation by the Court which would affect the administrative or discretionary power of the Government would be uncalled for, hence we disprove contrary views in Raghavendra Rao v. State of Karnataka (supra).
24. The alternative submission of Sri Subba Rao is that in the case of discharge or dismissal, Government has no option but to make a reference. He again reiterated, that this submission flows from the power given under S. 11-A. If Sri Subba Rao's contention is correct, then a proviso will have to be added to S. 12(5) so as to bring the cases of discharged or dismissed workmen as an exception to that sub-section. In other words, it has to be laid down, as a proviso, that in cases of discharge or dismissal, the State Government shall make a reference and it cannot refuse the same on any ground whatsoever. The wording of this section, as it now stands, does not permit such an interpretation being placed and it is not possible to accede to the contention of Sri Subba Rao and we cannot hold that in cases of discharged or dismissed workmen, Government is bound to make a reference. Section 10(1) does not make any such distinction. The power given to the State Government covers a wider range namely, the existence or otherwise of an industrial dispute or apprehension of an industrial dispute and its expediency in making a reference. Hence, the contention of Sri Subba Rao is rejected.
25. The last contention of Sri Subba Rao was that after the introduction of S. 11-A in the Act, the discharged or dismissed workman has a right to claim a reference and the refusal affects the said right thereby the only remedy given under the Statute is taken away by an administrative act of the State Government. He contended that in view of S. 11-A, the discretionary power given to the State Government ceases, to the extent the dispute concern the discharged or dismissed workman. In this context, Sri Subba Rao relied upon the judgment of this Court in Hariba v. K.S.R.T.C. [1983-II L.L.J. 76] at para 16 on page 84 particularly on the following passage :
'Whenever a workman employed in an industry is dismissed, or removed from service and the workman desires to challenge the legality of such action of the management on grounds of violation of procedure, as regulated by prescribed rules or rules of natural justice, the workman should resort to the remedy under S. 10, Industrial Disputes Act; and a petition under Art. 226, Constitution, should not be entertained notwithstanding the fact that the industry is a statutory corporation ......'
It is no doubt true that the learned Judge has described the power of reference as remedy available to the workman. With due respect to the learned Judge, we find it difficult to understand the logic behind this observation. Firstly, as laid down by the Supreme Court, the power under S. 10 is a discretionary power given to the State Government and is administrative in character and it has to be exercised by the State Government if it forms an opinion that there exists an industrial dispute or there is an apprehension of industrial dispute and secondly, it is expedient to do so. Therefore, the workman cannot claim it as a remedy given to him by a Statute. The only provision by which a reference under S. 10 can be compelled to be made is the one contained in sub-s. (2) of S. 10 i.e., where the parties to an industrial dispute apply jointly to have a reference, the appropriate Government shall make the reference accordingly. The use of the expression 'shall' in sub-s. (2) of S. 10 and the word 'may' in S. 10(1) brings about the distinction lying in the discretionary power under S. 10(1). It is precisely for this reason and keeping in view the above distinction, the learned Judge who dealt with the above decision, suggested certain amendments to the Act in para 17 of his judgment and thereafter in the concluding portion, he directed the petitioner to present a petition before the Government and the counsel for the Corporation submitted that Corporation has no objection for the Government referring the dispute for adjudication under S. 10 of the Act. The learned Judge made the following order :-
'The writ petition is dismissed leaving liberty for the petitioner to resort to the remedy available under the provisions of the Industrial Disputes Act.'
In a given case, if the management does not agree for such a reference being made, the only way of getting a reference made is by resorting to the power given under S. 10(1) which the party cannot claim it as a matter of right. Sri Subba Rao then relied upon an unreported decision rendered by the same Judge in Mysore Lamp Works' case i.e., W.P. No. 17184 of 1980, disposed of on 20th March, 1984. The judgment in Hariba's case, was relied upon by the Court in Workmen of the Mysore Lamp Works' case and in addition to this, another decision in Basavaraj v. The Secretary to Government (W.P. No. 41290 of 1982, decided on 9th August, 1983) was also relied upon. The relevant portion in the case of Basavaraj has been quoted in para 7. Sri Subba Rao drew our attention to the following passage :-
'.... Section 11-A is intended to take care of cases in which penalty of removal from service is found to be harsh or excessive i.e., highly disproportionate to the gravity of the charge proved. For a dismissed workman, that is the only efficacious and cheap remedy provided for by law, either to have the punishment set aside or at least to have it reduced at the hands of the Labour Court, if they could make out a case to secure such an order. This right or remedy cannot be denied or scuttled by rejecting to make the reference'.
In para 19, it is stated thus :-
'However, I am of the view that as the power to reappreciate the evidence and to examine the justification of the quantum of penalty is available to a Labour Court or Tribunal only while deciding a reference under the Act, and not in a proceeding under S. 33 of the Act, while the State Government might be justified in not referring the point of dispute relating to the validity of the inquiry, it would be under an obligation to refer the question regarding the validity of the finding on the charges recorded in the domestic inquiry and/or the question of quantum of penalty, for adjudication, unless on the ground of delay and other relevant grounds not touching the merits of the case, the Government refuse to make a reference.'
26. The use of the expression 'right for remedy' and 'obligation to refer' in the above judgment, has provided for an argument being constructed, to canvass the position, that a discharged or dismissed workman can claim the reference as a matter of right. In our opinion, the wording of S. 10 does not admit of such an interpretation. Indeed in para 27 of the said order, the learned Judge has proposed certain amendments to S. 33 and one of such proposed amendments was to treat the application under S. 33 as a reference under S. 10 of the Act. Ultimately the learned Judge directed the Government to reconsider the matter of referring the points of dispute between the petitioner and the management in accordance with law and in the light of that order and pass orders expeditiously.
27. It cannot be disputed that when the matter goes back to the Government, Government has to consider the case afresh in the light of the power given to it under S. 10 or S. 12(5) as it existed in the Statute book. It cannot take into consideration the proposed amendment so long as the provisions are not amended and are brought in the Statute book. We are clearly of the opinion that in view of the wording in S. 10(1), the power given to the Government is discretionary. We may here mention that when discretionary power is given to the Government, it does not vest a right in the party. The nearest analogy will be the power of revision given to the Government and various other authorities under various enactments.
28. This Court in M. Basha and another v. C. Sultan Beig and others [1958 Mys. L.J. 558], while dealing with the power of revision under S. 64-A of the Motor Vehicles Act, has observed thus : .. As for revision under S. 64-A of the Motor Vehicles Act, I am of the opinion that the said section in terms does not apply to the present case. What the said section provides is that 'the State Transport Authority may call for the record of any case in which an order has been made by a Regional Transport Authority and may pass such order in relation to the case as it deems fit'. The present order was not made by the Regional Transport Authority buy by its Secretary. The section therefore in terms does not apply to the present order. Even assuming that the section applies to the order in question, the Secretary being merely the delegated authority of the Regional Transport Authority, even then it cannot be said that the petitioners have a specific legal remedy which would bar a writ of certiorari. As laid down in the case of A. R. Sarin v. B. C. Patil by Chief Justice Chagla, specific legal remedy, which would bar a writ of certiorari, can only mean that the petitioner must have a right to approach a Court and he must have a right to a remedy if his case was just. Applying this principle, it cannot be said that the petitioners have a right to approach the State Transport Authority under S. 64-A, and have a right to remedy if their case was just. In the Bombay case, to which I have just now referred, it was contended that in view of the fact that Art. 227 of the Constitution confers upon the High Court powers of superintendence, both administrative and judicial, including the power to correct any decision of a Tribunal within its jurisdiction, the petitioner who could avail himself of that provision, must be held to have had the specific legal remedy which would bar a writ of certiorari. That contention was negatived by their Lordships and in doing so their Lordships observed that :
'Art. 227 only deals with the power of a High Court and not with the rights of litigant. A litigant may approach the High Court but he has no right to do so, nor has he a right to a remedy because the High Court may refuse a remedy under Art. 227. ... It cannot be said under the circumstances of the case that he had an alternative specific legal remedy open to him which he should have availed of before he asked for a prerogative writ.'
These observations, in my opinion, apply with equal force to the present case. In this case also, S. 64-A of the Motor Vehicles Act only deals with the power of the State Transport Authority to interfere with an order of the Regional Transport and not with the rights of a party who is affected by the said order. A party may approach the State Transport Authority but he has no right to do so nor has he a right to a remedy because the State Transport Authority may refuse a remedy under this section ....'
29. Reiterating this view, another Bench of this Court in B. K. Narayan Singh v. State of Mysore (1964 Mys. L.J. Supple. 321) while dealing with the Central Government's power under S. 30 of the Mines and Minerals Act, made the following observation :
'.... The Act of 1957 provides in S. 30 thereof that the Central Government may, of its own motion or on an application made within the prescribed time by an aggrieved party, revise any order made by a State Government or other authority in exercise of the power conferred on it by or under that Act. Although under this section a party has a right to make an application to the Central Government, the powers or revision exercised by the Central Government are clearly discretionary powers. The remedy therefore cannot be said to be either adequate or efficacious so as to totally disentitle a person from approaching this Court under Art. 226. The same view was taken by this Court in M. Basha's case.'
30. In Shiraguppi L. B. v. Deputy Superintendent of Police, Mercara & Others (1977(2) Kar. L.J. 225); the learned single Judge of this Court while dealing with the revisional jurisdiction of the State Government S. 25(2) of the Police Act, observed thus :
'.... Therefore, as laid down by his Court in Basha v. C. Sultan Beig and in B. K. Narayan Singh v. State of Mysore, although under S. 25(2) of the Act an aggrieved party may approach the State Government with an application seeking revision of any order passed under S. 23 of the Act, the powers of revision exercised by the State Government are discretionary powers and, therefore, the remedy cannot be said to be either effective or can be claimed by the aggrieved party as of right.'
31. These decisions make it abundantly clear that the discretionary power given to an authority cannot be claimed as a matter of right and no party has a vested right in the said remedy. To the same effect and following Shiraguppi's case, it is held in Bhargava v. Superintendent of Police, Mangalore (1983(2) Kar. L.J. 62) that a revision was not, like an appeal, a substantive remedy. If the exercise of revisional power, which is judicial in character, cannot be claimed as a matter of 'right', it would be illogical to hold that a purely 'discretionary' and 'administrative' power can be claimed as 'right to a remedy'.
32. For the a aforesaid reasons, we conclude as follows :
(1) Section 11-A of the Industrial Disputes Act deals only with the powers of the adjudicating authority deciding the dispute on reference.
(2) Section 11-A 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.
(3) An order of refusal under S. 12(5) cannot be assailed on the ground of non-consideration of gravity of punishment, if the reasons given are relevant and germane to the order reference.
33. In view of our above conclusion, we make the following order in the writ petition :-
Rule is discharged. Writ petition is dismissed, but in the circumstances, no order as to costs.