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K. Venkatiah Vs. Govt. of India, Ministry of Labour, Represented by the Secretary and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in(1978)IILLJ487AP
AppellantK. Venkatiah
RespondentGovt. of India, Ministry of Labour, Represented by the Secretary and anr.
Excerpt:
- maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter......madhava reddy, j.1. this petition under article 226 of the constitution of india is by a workman of the indian air lines, begumpet, hyderabad for the issue of a writ of mandamus or any other appropriate writ directing the government of india, the 1st respondent herein to refer the dispute between the petitioner and the indian airlines, begumpet, hyderabad, the 2nd respondent herein for adjudication by an industrial dispute.2. a few facts necessary to appreciate the contentions raised in this writ petition may briefly be stated :3. the petitioner was appointed as a casual mechanic by the station head, indian airlines, begumpet, hyderabad, the 2nd respondent herein on 19-6-1969. after the petitioner served for a period of about one year, he was required under letter dated 28-7-70 to undergo.....
Judgment:

Madhava Reddy, J.

1. This petition under Article 226 of the Constitution of India is by a workman of the Indian Air lines, Begumpet, Hyderabad for the issue of a writ of mandamus or any other appropriate writ directing the Government of India, the 1st respondent herein to refer the dispute between the petitioner and the Indian Airlines, Begumpet, Hyderabad, the 2nd respondent herein for adjudication by an industrial dispute.

2. A few facts necessary to appreciate the contentions raised in this writ petition may briefly be stated :

3. The petitioner was appointed as a casual mechanic by the Station Head, Indian Airlines, Begumpet, Hyderabad, the 2nd respondent herein on 19-6-1969. After the petitioner served for a period of about one year, he was required under letter dated 28-7-70 to undergo medical examination and he did so. The petitioner was continued in service thereafter. Again in the year, 1971 by a letter dated 14-12-1971 along with other workers the petitioner also was asked to attend medical examination for the purpose of making him permanent. The petitioner claims that at that medical examination, he was found fit and was continued in service till 22-11-1973 as Air Craft Engineering Cleaner. His services were regularised as per letter No. Hyd ; PER : ESt./2196 dated 4-5-1972 and he was allowed all benefits including free air pass. In view of this, the petitioner claims that he had become a permanent workman under the 2nd respondent. While so, some section of employees of the Indian Airlines went on strike all over India in the month of November, 1973 and the management declared a lock-out with effect from 23-11-1973. As a pre-condition for lifting the lock-out, the management directed all the workmen including the petitioner to sign an undertaking on 31-12-1973. Accordingly he signed the undertaking and reported to duty on 31-12-1973 and worked up to 4-1-1974. However, after availing the intervening holidays, when he reported to duty on 7-1-1974, the Industrial Distributor, one Mr. Benerji did not allow him to join duty. Immediately the petitioner sent a representation requesting the management to disclose the reasons for the oral termination of his employment. The 2nd respondent by his letter No. Hyd : PER :/Est/168 dated 21-1-1974 intimated the petitioner that the lock-out was lifted only with regard to the permanent staff and the petitioner was still working on a casual basis and that his services were not regularised as he was medically unfit. The petitioner denies that he was medically unfit and that he was not regularised. He accordingly sent a representation to the 2nd respondent on 28-1-74. As there was no response from the 2nd respondent, he sent another representation to which the 2nd respondent replied on 26-2-1974 plating that the management's reply dated 21-1-1974 was final. Thereafter the petitioner approached the Assistant Labour Commissioner (Central) at Hyderabad in April, 1974 raising an industrial dispute and the matter was admitted for conciliation before the Assistant Commissioner for Labour (Central) Hyderabad. These conciliation proceedings, in spite of several meetings, proved infructuous and the conciliation officer sent a failure report on 19-7-1974. In that report it was mentioned that the petitioner was a T.B. patient. Once again the Assistant Commissioner, Labour (Central) Hyderabad sent a notice dated 17-10-1974 fixing a further meeting on 23-10-74 at which the petitioner was offered a sum of Rs. 1,000 and was requested to give up his claim. The petitioner did not agree. The petitioner thereafter received a letter bearing No. L. 10011/16/74 IR III dated 26-11-1974 from the Secretary, Government of India, Ministry of Labour, New Delhi, intimating the petitioner that the matter cannot be referred to an Industrial Tribunal for adjudication. That letter reads as follows :

No. L. 11011/16/74-IR. III Government

of India/Bharat Sarkar, Ministry of

Labour/Sharam Mantralaya.

Dated New Delhi, the 26th November,

1974.

To

1. The Station Head,

Indian Airlines,

Begumpet, Hyderabad.

2. Shri K. Venkatesh,

1-3-912, Kavadiguda,

Hyderabad.

Sub : Industrial dispute between the

management of Indian Airlines,

Hyderabad and Shri K. Venkatesh

regarding termination of services.

Sir,

In continuation of this Ministry's letter of even number dated the 2nd August, 1974, I am directed to say that the Government of India do consider the dispute fit for reference to an Industrial Tribunal for adjudication as the action of the management in terminating the services of Shri K. Venkatesh does not appear to be unjustified or mala fide.

Yours sincerely,

Sd./R. Kunjithapadam,

Under Secretary.

4. The petitioner contends (1) that he was a permanent workman on 7-1-1974 when he was discharged from service and not a casual workman ; (2) that it is incorrect to allege that he is a T.B. patient and that the management is entitled to terminate his services on that ground, (3) that the Government of India misdirected itself and did not take into account all relevant considerations in coming to the conclusion that the dispute raised by the petitioner in regard to the termination of his services was not a fit one for reference to an Industrial Tribunal for adjudication and that the Court would be justified in issuing a writ of mandamus in this behalf.

5. The management of Indian Airlines on the other hand contends that the petitioner was a casual cleaner and a mechanic and continued as such when the petitioner was sent for medical examination on 30-7-1970, For ascertaining if he could be continued as casual daily rated workman, the Medical Officer stated that chest screening and urine examination should be done if he is to be continued for more than 90 days. He was again sent for medical examination along with other workers through letter dated 14-12-1971. On examination he was found medically unfit. At his request he was allowed on compassionate grounds to continue to work as a casual workman, It is claimed by the respondents that though the petitioner worked for more than one year, unless a workman is appointed to a permanent post which is vacant, no workman can claim right of permanancy. The petitioner was never found medically fit and, therefore, could not be employed as a permanent workman. It is further averred that the management declared a lockout following an illegal strike commenced by the employees of the Indian Airlines Corporation. That lock-out was lifted as and from 31-12-1973 only in respect of employees other than the casual workmen provided they were prepared to sign an undertaking. By oversight, the petitioner was permitted to join on signing the undertaking. This mistake was detected on 7-1-1974 and the petitioner was asked to stop from joining duty from that date. He was informed that since he was only a casual workman and since he was also medically unfit he would not be allowed to work in the Airlines. The same stand was taken by the management in the conciliation proceedings. The other facts averred by the petitioner are not disputed. It is urged that the 1st respondent has considered the petitioner's case as not fit for reference to an Industrial Tribunal for the reasons given in the order which according to them are perfectly valid. It is contended that the petitioner is not entitled to agitate the questions of fact regarding his health in this writ petition and that he is not entitled to the issuance of any writ. It is also urged that the action of the respondents in refusing to refer the dispute for adjudication by the Industrial Tribunal made in exercise of the statutory powers vested in it, is not justiciable and that no writ lies in this regard. The allegation of the petitioner that the termination of his services is unreasonable, mala fide or amounts to victimisation is also denied.

6. The main question that arises for consideration in this writ petition is :

Whether in the circumstances of the case, the 1st respondent could be directed to refer the dispute raised by the petitioner to an Industrial Tribunal for adjudication ?.

7. There is no dispute that the petitioner was initially appointed as a cleaner in the Engineering Department at Begumpet ' purely on casual daily rated basis' from the date of joining. He was directed to undergo medical examination through letter dated 28-7-1970 and he did so. Though he was given another letter of appointment on 31-7-1970 appointing him on casual daily rated wages as a cleaner, he continued in service without any break. Along with other workers, he was again sent to attend medical examination through letter dated 14-12-1971 and he continued in service till the lock-out was announced on 22-11-1972. After the management lifted the lock-out, he rejoined duty on 31-12-1973 by executing an undertaking and worked till 4-1-1974. As 5-1-1974 and 6-1-1974 were holidays, when he went again for duty on 7-1-1974 he was prevented from working, but no order terminating his services was issued to him. Nor was he given one month's notice or wages in lieu thereof. He was given no intimation whatsoever as to why he was prevented from joining duty. He, therefore, made a representation in writing on that very day requesting for the reasons for the oral termination of his service. The first communication received by him intimating the reasons for termination is dated 21-1-1974 which reads as follows:

INDIAN AIRLINES

HYDERABAD

HYD : PER : EST ;/168

Dated 21st January, 1974

Shri K. Venkatesh,

House No. 1-3-912

Kavadiguda,

Secunderabad-3.

Reference your letter dated 7th January, 1974 received by us on 11-1-1974.

We regret very much that through misunderstanding, you were allowed to come into the workship on 31-12-1973 after signing the undertaking. On a review in your case it was observed that you are still working on a casual basis and regularisation of your services has not been done in view of the fact that you are medically unfit to become a permanent workman, we regret very much that we are unable to allow you to work in the factory. You are required to deposit the permit issued to you forthwith.

By means of a copy of this letter, we are requesting the Dy. Finance Manager, I.A., Hyderabad to arrange for payment of your wages for the period from 31-12-1973 to 4-1-1974.

Sd./

Station Head.

From this letter, it would appear that the petitioner was deemed even till then to be a pasual workman and the management was of the view that his services were not regularised. The reason for not regularising his services is stated to be that he was ' medically unfit to be a permanent workman'. There was an offer to pay wages for the period commencing from 31-12-1973 and ending with 4-1-1974. The last order appointing him as a casual workman is dated 30-7-1970. Although that order states that 'he is appointed for a period of 60 days on casual daily rated basis and that his services are liable to be discontinued at any time without notice and without assigning any reason therefor. In fact, after undergoing medical test, he was continued in service without interruption until the lock-out was announced. Far from terminating his services on the expiry of 60 days or on the ground of medical unfitness by a letter HYD/ PER/EST/2196 dated 4-5-1972, the Chief Engineer, Indian Airlines, Begumpet informed the petitioner and two others that they have completed one year's service on 31-7-1971 and that they would be eligible for the following benefits from the date of completion of one year's service as per rules in force.

1. Privilege leave

2. Sick Leave

3. Casual Leave

4. Air passage (Free/Concessional)

5. Membership of IAEPF.

6. Annual Increment

7. Contributory P.P.

8. Initial supply of uniforms

8. Thus though the petitioner had not been expressly made a permanent workman, he had, having completed more than one year's service enjoyed the benefits of a regular employee and had acquired a status above that of a mere casual workman.

9. The two grounds on which the management seeks to terminate the petitioner's employment are (1) that the petitioner continued to be a casual workman and never became a permanent workman and consequently entertaining him in service as a result of the lock-out being lifted was a mistake which was rectified by terminating his services and (2) that he was medically unfit to become a permanent workman.

10. The Indian Airlines Corporation is governed by the provisions of the Air Corporations Act, 1953 (Act 27 of 1953) Section 8 of the said Act empowers the appointment of a General Manager and also other employees subject to such conditions of service as may be determined by the Regulations made by the Corporation. The Corporation is empowered under Section 45(2)(b) of the said Act to make regulations in this behalf. Regulation 10 lays down that no person may be appointed as a permanent workman without a medical certificate as to his medical fitness. Standing Order No. 26(3) declares that no permanent workman may be discharged without notice or pay in lieu of notice. These regulations as held in Sukhdev Singh v. Bhagatram : (1975)ILLJ399SC , have statutory force.

The regulations containing the terms and conditions of appointment are imperative. The administrative instruction is the entering into contract with a particular person but the form and content of the contract is prescriptive and statutory. These statutory bodies have no free hand in framing the conditions and terms of service of their employees. These bodies are bound to apply the terms and conditions as laid down in the regulations. Any breach of such compliance would be a breach of the regulations which are statutory provisions. These regulations are not only binding on the authorities but also on the public.

11. Whether he had become a permanent workman or not is a matter for determination by the competent authority. We do not wish to express any final opinion on this aspect. However, one thing in certainly clear that although the petitioner was appointed as a casual workman, on completion of his one year's services, he was given all the benefits due to a permanent workman as per rules and there was no break in his service. He worked for more than 240 days. In fact, during the four years he worked there was no break in service. Prima facie, he was entitled to notice of termination of service on pay in lieu of notice as laid down in Section 25F of the Industrial Disputes Act.

12. As regards the stand taken by the management that he was found medically unfit, we find from the record that when he was sent for medical examination in 1971, the Chief Medical Officer advised that the petitioner be examined by Dr. Brahmaji Rao, a senior Cordiologist of Government of Andhra Pradesh. Even after the receipt of the medical report, the Management evidently did not think him medically unfit so as to discharge him from service. Of Course they did not expressly make him a permanent workman either. However, they allowed him to continue in service even after another medical examination on 4-5-1972.

13. It is indisputable that during the course of the conciliation proceedings, it would appear from the report of the conciliation officer that the management reported that the petitioner was a T.B. patient. If the services of a workman are terminated on the ground of continued ill-health, that does not constitute retrenchment. Section 25F of the Act would be attracted only if the termination of services of a workman constitutes retrenchment within the meaning of Industrial Disputes Act. Retrenchment is defined under Section 2(oo) as follows :

' Retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise then as a punishment inflicted by way of disciplinary action, but does not include,-

(a) voluntary retirement of the workman ; or

(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or

(c) termination of the service of a workman on the ground of continued ill-health.

In view of this definition of '' retrenchment', the termination of services of a workman on the ground of continued ill-health does not constitute retrenchment. ' Continued ill-health ', however, does not mean ill-health for a temporary period or even serious illness for a short period. Continued ill-health suggests that it prolonged for a considerable period of time. A person may be afflicted by a serious illness or disease but with the modern advancement in medical science that illness or disease may be controlled or totally eradicated and the person concerned may be restored to normal health. ' Continued ill-health' and ' medically unfit' cannot, therefore, be treated as synonymous expressions. Further ' medically unfit' means that on the date of termination, the workman was medically unfit. That does not necessarily imply that the workman concerned was suffering from continued ill-health. ' Continued ill-health ' implies ' ill-health ' for a long period continuing right upto the date of termination of service. ''Past ill-health' or 'past medically unfitness '. By itself cannot be termed as ' continued ill-health'. Ill-health which is intermittent cannot be termed as.' continued ill-health'. It is should be of sufficiently long duration and continuous, for no one can claim to be absolutely healthy' and immune from all diseases and ill-health throughout his life. Sometime or other, one would have suffered from some ailment or other. At that particular point of time he may be medically unfit for discharging the duties entrusted to him. That does not render him unfit for work for all time to come ; nor could he be deemed to be suffering from continued ill-health. In order that a termination of service may be excluded from the definition of 'Retrenchment' it should have been done not merely on the ground of continued ill-health but the workman should have been suffering from continued ill-health on the date of termination. Any termination of service for past continued ill-health cannot be excluded from the definition of ' retrenchment' under Section 2(oo) of the Industrial Disputes Act. As ' retrenchment ' means termination by the employer of the services of a workman for any reason whatsoever otherwise than by punishment inflicted by way of disciplinary action, the exception provided in this definition must be strictly construed. Under the Industrial law even the retrenchment of a workman clothes him with certain rights and the employer is obliged to fulfil certain conditions for making a valid order of retrenchment. Only such workmen whose services are terminated according to law could be deprived of these rights. Termination of service which does not strictly fall within those exceptions cannot deprive a work-man of the benefits conferred by the Industrial law.

14. So far as the petitioner is concerned on What ground he was declared medically unfit was not communicated to him prior to the termination of his services. Only during the conciliation proceedings, as evident from the conciliation officer's report, the management disclosed that the petitioner was a T.B., patient. The question whether the petitioner was a T.B. patient or was suffering from continued ill-health, is a question of fact and when a dispute is raised could be properly decided by an Industrial Tribunal. However, it cannot be ignored that T.B. is a disease for which there is a permanent cure. Only it requires good medical care. Unless it is neglected it rarely proves futile. The mere fact that a person was found to have had an attack of T.B., at one time does not necessarily lead to the conclusion that he continues to suffer from that disease. Under good medical care he may have been wholly cured of that disease and it may not recure again. In the absence of any other record, the mere fact that on 5-1-1972 Dr. Brahmaji Rao examined him and found him medically unfit does not necessarily lead to the conclusion that the petitioner was still suffering from T.B., or from continued ill-health even upto January, 1974 when his services were terminated. It may not be out of place to notice that Dr. Brahmaji Rao is a Cardiologist and he found the petitioner suffering from ' Rheumatic mitral and Aortic valve disease with evidence of Biventricular hypertrophy and left atrial hypertrophy'. That is a heart disease and not a long disease. That opinion of Dr. Brahmaji Rao certainly does not indicate that the petitioner was suffering from T.B. All this only shows that the Management did not even carefully consider with what disease the petitioner was suffering from. Evidently assuming that the petitioner was suffering from T.B., which is a communicable disease, the management thought it inadvisable to take him as a permanent workman. That consideration would not have weighed with the Management if it had taken note of Dr. Brahmaji Rao's report which disclosed only a ' Heart Disease '. The Chief Medical Officer, Indian Airlines Headquarters, New Delhi in his letter dated 19-4-1972 while declaring the petitioner ' unfit for recruitment in the Indian Airlines, after careful consideration of the case,' did not state whether the petitioner was suffering from T.B., or any heart disease. Much less did he state that he was suffering from continued ill-health. That being so, the petitioner who allegedly suffered from T.B., in the year 1972 but was not retrenched and was allowed to continue in service and who in fact discharged his duties without giving any cause for complaint for over two years thereafter, prima facie could not be discharged from service in January, 1974 on the ground of continued ill-health ; more so when there is no medical report to indicate that he suffered from any disease or ill-health subsequent to 1972. In all probability the fact that the petitioner was reported by the management as suffering from T.B., weighed with the Government also for not referring the matter for adjudication by the Industrial Tribunal.

15. In the instant case, it is also not clear what the stand of the management is. In re-entertaining the petitioner after the lockout was lifted, the management evidently treated the petitioner as a permanent employee, If it had committed a mistake in entertaining him, it could have made a proper order. The management did not serve any order on the petitioner on 7-1-1974. One of its officers only orally asked the petitioner to stop away from duty. The subsequent order dated 21-1-1974 communicated in response to the petitioner's protest states that he was working on a casual basis and regularisation of his services was not done as he was medically unfit. At what point of time he was found medically unfit is not clear. Whether on 7-1-1974 or earlier. The last medical report was two year old. There is no reference to any continued ill-health of the petitioner. If he was found to be medically unfit in January, 1972 why he was given all the benefits by letter dated 4-5-1972 it is not explained as to why he was continued in service until the lock-out. These are the several factors which ought to have been taken into account by the Government in the matter of reference to the Industrial Tribunal when the conciliation proceedings failed. The Government did not also consider whether the mere fact that the petitioner was found to be suffering from T.B., in 1972 justified the inference that he was suffering from ' continued ill-health' warranting termination of his service in 1974. There is no medical report about the petitioner's health subsequent to 5-1-1972. On the other hand, the medical report submitted by the petitioner now before the Court shows that he is medically fit. If that be the position, ' how could the Government's action refusing to refer the dispute to an Industrial Tribunal for adjudication be justified '.

16. Further whether or not the petitioner's services were terminated in accordance with the terms and conditions of service and whether it constituted ' retrenchment' within the meaning of Section 25F of the Act is a question which had to be considered by the Management before stopping him from joining duty on 7-1-1974, If it constituted retrenchment under Section 25F of the Industrial Disputes Act, either one month's notice or one month's wages in lieu thereof had to be paid before there could be valid retrenchment.

17. The Government in refusing to refer the dispute for adjudication merely considered whether the petitioner-workman was entitled to be treated as a permanent workman or entitled to a permanent appointment and did not consider whether in view of his continued service of over one year, was or was not entitled to a notice or pay in lieu of notice as laid down under Section 25F of the Industrial Disputes Act. It ought to have borne in mind that a workman's right of permanent appointment is one thing and his right to be not retrenched except in accordance with Section 25F is another thing. That also constitutes a statutory right, which if infringed, renders the termination of service illegal and entitles the workman to reinstatement or compensation.

18. The Government refused to refer merely on the ground that it did not consider the dispute to be fit for reference ' as the action of the Management in terminating the services of Sri Venkatesh does not appear to be unjustified or mala fide'. Even if the action of the management was not mala fide, the claim of the workman that he had acquired a permanent status and that he could not be retrenched from service without at least complying with the requirements Section 25F deserved considertion by the Government.

19. No doubt, the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India, cannot direct the Government to refer a dispute for adjudication by the Industrial Tribunal. That is a matter within the discretion of the Government which discretion has to be exercised having regard to the circumstances of the particular case. The Supreme Court in Bombay Union of Journalists v. State of Bombay : (1964)ILLJ351SC , laid down :

In entertaining an application for a writ of mandamus against an order made by the appropriate Government under Section 10 (1) read with Section 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 Section 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 reasons why no reference is made, because the object of Section 12(5) appears to be to require the appropriate Government to state its reasons for refusing to make 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.

Thus, the Court is precluded from examining the propriety or correctness of the reasons given in this case for refusing to make a reference. In the aforesaid judgment, viz., Bombay Union of Journalists v. State of Bombay, (supra) even while laying down that the Court cannot go into the propriety or correctness of the reasons given by the concerned Government for refusing to make a reference, the Supreme Court observed :

If it appears (to the Court) that the reasons given show that the appropriate Government took into account a consideration which was irrelevant or foreign, that no doubt, may justify the claim for a writ of mandamus.

As already noticed above, the reason why ' the Government did not consider the dispute fit for reference to an Industrial Tribunal for adjudication ' was that, in its opinion', the action of the management in terminating the services of Sri K. Venkatesh does not appear to be unjustified or mala fied'. In coming to that conclusion what all weighed with the Government was that the petitioner was not a permanent workman and the management in view of the earlier medical report thought him unfit to make him permanent. During the conciliation proceedings also, the same facts were taken into account and the conciliation officer thought that no useful purpose would be served in pursuing those proceedings. In the letter of 26th October, 1972, addressed by the Regional Labour Commissioner (Central), Hyderabad to the Central Labour Commissioner, New Delhi, the same views were communicated. Based on this, the impugned communication refusing to refer the dispute to the Industrial Tribunal was issued. It is thus clear that in coming to the conclusion that the termination was not unjustified or mala fide, it did not take into account the claim of the workman that inasmuch as he was in continuous service for more than one year, notwithstanding anything contained in any law, he was entitled to the benefit of Section 25F of the Industrial Disputes Act. The condition precedent laid down under Section 25F for retrenchment of a workman not having been complied with, the termination of his service could not be valid. The workman never alleged any mala fides. His contention was that the termination of his services was not justified in the circumstances of the case. He may not have specifically pleaded that the conditions precedent for retrenchment laid down under Section 25F not having been complied with, his services could not be terminated. But nonetheless as the statute gives him such protection, it was incumbent upon the Government to consider that very relevant aspect and protect the interests of the workman.

20. From the record placed before us, while it does not appear that any irrelevant considerations weighed with the Government in refusing to make a reference, it would appear that it misdirected itself in proceeding upon the erroenows assumption that the termination of the services of the petitioner was for ' continued ill-health '. It did not consider whether it amounts to retrenchment, and whether failure to give notice of retrenchment or pay in lieu of notice as laid down by Section 25F entitles the workman to continue in service. These are certainly relevant considerations which ought to have weighed with the Government.

21. Even, so, the learned Counsel for the respondent-management contends that failure to take one of the relevant considerations into account in refusing to make a reference does not entitle the workman to seek a writ of mandamus for quashing the order of the Government and directing a reference. For this contention, he relies upon the passage occurring in the very same judgment in Bombay Union of Journalists v. State of Bombay (supra) which reads as follows:

But the argument that of the pleas raised by the retrenched workman, two have been considered and not the third would not necessarily entitle the party to claim a writ under Article 226.

This passage no doubt indicates that in certain cases if all the pleas are not taken into account in refusing to make a reference to the Industrial Tribunal, the party cannot, as of right, claim a writ under Article 226 to quash the said order. But the very same observation of the Supreme Court implies that whether a writ could be issued in a case where out of the several relevant considerations or pleas only some are taken into account and some are not taken into account by the concerned Government it would have to be decided by the Court, on the facts and circumstances of that particular case, as to whether the refusal to make a reference is vitiated and must be quashed. That the Court has such a discretion is evident from the subsequent decision of the Supreme Court in Hoctief Gammon v. State of Orissa 1975-II L.L.J. 418 at 428, wherein it observed :

The Executive have to reach their decisions by taking into account relevant considerations. They should not refuse to consider relevant matter nor should take into account wholly irrelevant or extraneous consideration. They should not misdirect themselves on a point of law. Only such a decision will be lawful. The Courts have power to see that the Executive acts lawfully. It is no answer to the Executive acts lawfully. It is no answer to the exercise of that power to say that the Executive acted bow fide nor that they have bestowed pains taking consideration. They cannot avoid scrutiny by Courts by failing to give reasons. If they give reasons and they are not good reasons, the Court can direct them to reconsider the matter in the light of the relevant matters, though the propriety adequacy or satisfactory character of those reasons may not be open to Judicial scrutiny. Even if the executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts.

In that case, the Court held that the Government's order really amounts to an outright refusal to consider relevant matters and that the Government also misdirected itself in point of law in wholly omitting to take into account the relevant considerations. In that view of the matter, the Court while quashing the order, directed the Government 'to reconsider this matter and take a decision in the matter of reference in the light of the relevant facts.... '

22. Thus, not taking the relevant facts and circumstances into consideration in refusing to make a reference is placed on a par with taking irrelevant factors into consideration in refusing to refer the dispute for adjudication by an Industrial Tribunal. In either of these cases, the Court is empowered to quash the order. No doubt, dealing with a case of the violation of Section 25F(c) the Supreme Court in Bombay Union of Journalists v. State of Bombay : (1964)ILLJ351SC observed :

Even if the employer retrenches the workman contrary to the provisions of Section 25F(c), it does not follow that a dispute resulting from such retrenchment must necessarily be referred for industrial adjudication. The breach of Section 25F is no doubt a serious matter and normally the appropriate Government would refer a dispute of this kind for industrial adjudication ; but the provisions contained in Section 10 (1) read with Section 12(5) clearly show that even where a breach of Section 25F is alleged, the appropriate Government may have to consider the expediency of making a reference and if after considering all the relevant facts, the appropriate Government comes to the conclusion that it would be inexpedient to make the reference, it would be competent to it to refuse to make such a reference.

This judgment, however, proceeds upon the footing that contravention of Section 25F(c) was also taken note of by the Government before refusing to refer the dispute for adjudication. It did not lay down that if that factor was omitted from consideration in refusing reference, the High Court would not be justified in issuing a writ. In the instant case, whether compliance of Section 25F(a) was mandatory or not was not at all taken into account by the Government in coming to the conclusion that the dispute does not deserve to be referred to the Industrial Tribunal. That was on the facts and circumstances of this case a very relevant factor and goes to the root of the Industrial dispute. Consequently, it should have been taken into account, but the Government totally ignored it. The order of the Government refusing to refer the dispute raised by the petitioner for adjudication by the Industrial Tribunal cannot, therefore, be sustained.

23. This writ petition, therefore, succeeds and is accordingly allowed and the impugned order, quashed. There shall be a direction to the respondent-Government to consider all the relevant factors in the light of the observations made above and determine whether the dispute is a fit one for reference to the Industrial Tribunal for adjudication or not. A writ will issue accordingly. There will be no order as to costs. Advocate's fee Rs. 100.


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