B.K. Ray, J.
1. The petitioner is a Trade Union of Sub-Assistant Engineers employed in the Orissa State Electricity Board and is known as ' Sub-Assistant Engineers' Association, Orissa State Electricity Board' (hereinafter called the union). The Central Wage Board award for electricity undertaking was accepted by the Government of India on 30-7-70. The union thereafter served a charier of demands on the Board on 18-6-71 accompanied by a strike notice. The charter of demands with strike notice is Annexurel. The Board being a public utility service, the Conciliation Officer gave notice of conciliation to the Board and the union on 2-7-71.
2. During the conciliation proceeding the union did not press its demand Nos. (a), (c), (d), and (e) but only pressed demand No. (b) as per Annexure 1. Demand No, (b) is as follows-
(b)(i) Full and faithful implementation of the Central Wage Board recommendations as per the memorandum submitted in this Association letter No. 109 (5), dated 30-5-71.
(ii) Immediate fitment of the new pay scales as per the Central Wage Board recommendations with strict references to the proposals given by the various unions collectively through Consideration Committee and separately by individual unions. Payment of arrears of wages must be effected on or before 30-6-71 as per tripartite agreement of 3-10-70 which was subsequently extended upto 30-6-71 by the request of the Board.
On the basis of this demand it was claimed by the union in course of the conciliation proceeding that the Sub-Assistant Engineers working under the Board should be placed in the category 'Supervisory-A' as recommended by the Central Wage Board for electricity undertakings and that they should be fitted in the scale of Rs. 400-750 with immediate effect and should be paid the arrears of wages according to the said scale of pay due to them upon such fitment. It was further contended by the union before the Conciliation Officer that by settlement dated 3-10-70 (Annexure 4) the Board had agreed to implement the Central Wage Board recommendations and that even though the parties had agreed in the above settlement that the question of fitments into the new wage scale as per the Wage Board recommendations must be placed before the representatives of the parties prior to their finalisation and in the event of any differences the parties should make endeavour to reach an accord on the basis of consensus of opinion, the Board in violation of the above terms of settlement unilaterally and arbitrarily fixed the Sub-Assistant Engineers in the category Supervisory-C and in the scale of pay of Rs. 250-500. This fixation, according to the petitioner, overlooked the fact that the work of Foreman fitted to the category Supervisory-B was to be supervised by the Sub-Assistant Engineers placed in the category Supervisory-C.
3. The Board's stand before the Conciliation Officer was that the Sub-Assistant Engineers work at the lowest level of supervision, and so, they had been classified as per the classifications given at pages 137 and 149 of the Central Wage Board Report. According to the Board, the Junior Engineers who were more qualified than Sub-Assistant Engineers having been placed in the category Supervisory-C the claim of the Sub-Assistant Engineers to be placed in a level higher than that of the Junior Engineers could not be accepted. Lastly, it was urged by the Board that as employee of the Gujarat State Electricity Board whose work was similar to that of the Sub-Assistant Engineers under the Board have been placed in the category Supervisory-C, the petitioner could not claim a higher grade.
4. The conciliation proceeding having failed and the Board having refused to agree for voluntary reference of the dispute to arbitration under S. 10A of the Industrial Disputes Act (hereinafter called the Act), a failure report was submitted to the State Government under Section 12(4) of the Act and the said report was received on 9-3-71. As Government did not take any action over the failure report for more than one year in spite of reminders from the petitioner, the latter filed O.J.C. No. 933 of 1972. While the said case was pending Government on 9-4-73 intimated to the petitioners as per JAnnexure5 that there was no case for reference of the dispute for industrial adjudication.
5. On the aforesaid allegations the petitioner has filed the present application under Articles 226 and 227 of the Constitution for a direction to the State Government (opposite party) to reconsider the matter and the set according to law.
6. The stand taken by the opposite party in its counter is as follows-On a consideration of the conciliation report and other relevant facts and circumstances the opposite party came to the conclusion that since the Sub-Assistant Engineers were working only at a lower level of supervision under the Assistant Engineers holding charge of Subdivisions they could not be fitted against any supervisory category equal to or higher than that of Assistant Engineers. Further, the Sub-Assistant Engineers being only diploma holders could not be placed in the category B or A The opposite party while considering the question of fitment of Sub-Assistant Engineers to a particular category was aware of job contends, workload, work hazards and other factors depending on education and experience of different employees under the Board and ultimately decided not to make any reference. The review committee appointed by the Board under the chairmanship of the Chief Engineer having submitted its report and the same having been accepted by the Board, the opposite party did not feel it necessary once again to refer the question of fitment of Sub-Assistant Engineers working under the Board to the Industrial Tribunal. That apart, Junior Engineers who were more qualified than the Sub-Assistant Engineers Working under the Board having been placed in the category Supervisory-C, the claim of the Sub-Assistant Engineers was untenable.
7. Mr. S.B. Nanda, learned Counsel for petitioner argues that according to the point rating method recommended by the Central Wage Board for the purpose of job evaluation, Sub-Assistant Engineers are entitled to 648, points, and, therefore, they deserve to be fitted into the category Supervisory. A with a salary of Rs. 400-750. The Wage Board has clearly recommended that the actual job work and job description should be taken into account while fitting the existing jobs into the scheme of the graded hierarchy re-commended by it. The management of the Board has merely tried to fit in the existing designations in the Board with the standard nomenclature in appendix E to the Wage Board report. Such fitment, according to Mr. Nanda, is erroneous and is contrary to the recommendations of the Wage Board. It is contended by him that the Sub-Assistant Engineers supervise the work of foreman. The foreman having been fitted to the category Supervisory-B, there cannot be any justification to fit the Sub-Assistant Engineers in thecategory Supervisory-C. According to Mr. Nanda, the reasons for not referring the disput eto the Industrial Tribunal as given by the poposite party in Annexure 5 are not germane. The questions of categorisation and fitment into different grades of employees under the Board as per the recommendations of the Wage Board involve intricate questions of law and fact. These questions, therefore, can be suitably gone into by the Industrial Tribunal after taking necessary evidence, oral and documentary and hence should have been referred to the Industrial Tribunal and the appropriate Government should not have taken upon itself the responsibility of deciding the same. Mr. Nanda further says that the opposite party has lost sight of the fact that as per the settlements (Annexure 4) the Board was bound to consult the petitioner-union before fitting the Sub-Assistant Engineers into the category Supervisory-C and in the scale of Rs. 250-500 and in this view, the opposite party should have come to the conclusion that the Board is guilty of violation of the terms of the settlement. The reasons given by the opposite party, according to Mr. Nanda, that the Sub-Assistant Engineers who work under the Assistant Engineers cannot be fitted in a category equal to or higher than that of the Assistant Engineers is wholly extraneous, because Assistant Engineers under the Board are working on deputation from the State Government, and so, cannot be brought within the scope of the Wage Board award. It is further contended that the reasons that Sub-Assistant Engineers being only diploma holders cannot claim a hlghter category than that of the Junior Engineers, who are degree holders and placed in the category Supervisory-C is not acceptable, because a wrong done at one place cannot justify a wrong at another place.
8. The aforesaid contentions of Mr. Nanda require careful examination. It is now well-settled that where the appropriate Government refused to make a reference for irrelevant considerations, e.g., on considerations which are not germane or on extraneous grounds, it is open to a party to invoke the extraordinary powers of the High Court under Article 226 of the Constitution for an appropriate writ. It must, however, be remembered in this connection that this Court while exercising its extraordinary powers under Article 226 of the Constitution in a case like the present one, does not function as a Court of appeal and that when Government considers the question whether a reference should be made under Section 12(5), it has to set under Section 10(1) of the Act which confers a discretion on it either to refer or not to refer the dispute to an Industrial Tribunal. If in its opinion Government feels that it is not expedient to refer a dispute for industrial adjudication, this Court cannot by issuing a writ of mandamus direct it to refer the dispute to an Industrial Tribunal. Because in dealing with a matter in respect of which a failure report has been submitted under Section 12(4) of the Act, Government does an administrative act. The Court, therefore, cannot straightaway direct it to make a reference to an Industrial Tribunal, because that will amount to usurping a power of jurisdiction vested in it by the Act itself. The only way in which this Court can interfere in a case where it is found that Government being actuated by extraneous consideration and for reasons not germane to the dispute has refused to refer the same for industrial adjudication is to direct it to reconsider the failure report made by the conciliation officer and if it is satisfied that there is a case for reference to do so. This being the position, it has to be seen if the reasons given by the opposite party for not referring the dispute for industrial adjudication are germane to the dispute itself or they are based on extraneous considerations. Three reasons have been given in Annexure 5. The first reason is that the Sub-Assistant Engineers work under the Orissa State Electricity Board at a lower level of supervision under the Assistant Engineers holding charge of sub-divisions Therefore, they cannot be fitted against any supervisory category equal to or higher than that of the Assistant Engineers. With regard to this reason it is contended by Mr. Nanda, as has been stated earlier that the Assistant Engineers are not regular employees under the Board and that they are on deputation from Slate Government service. This averment made in the rejoinder filed by the petitioner has not been controverted. It has been specifically mentioned in the rejoinder that there is no Assistant Engineers* grade in the Board. Such Assistant Engineers are borrowed from the State Government and hence the case of the opposite party that Sub-Assistant Engineers cannot be placed in a grade equal to or higher than that of the Assistant Engineers does not deserve any consideration.
9. Coming to the second reason, it has been stated in Annexure 5 that the Junior Engineers who are degree holders have been placed in the category Supervisory-C. Therefore, the Sub-Assistant Engineers who are merely diploma holders cannot claim to be placed in a category higher than category Supervisory-C. Here again, we must say that as per the award of the Wage Board, employees under the Board have to be placed under different categories according to the evaluation of their respective work. In order to decide as to under what category an employee is to be placed as per the Wage Board award, job contents, workload, work hazards including other factors, such as, education and experience have to be considered. The award has laid down a scheme in which job evaluation is to be made and how the workers have to be fitted into different grades. Therefore, if in view of the scheme laid down in the Wage Board award the Sub-Assistant Engineers are entitled to be placed in a category higher than category Supervisory-C, merely because Junior Engineers have been placed in the said category, the case of the Sub-Assistant Engineers cannot be thrown out.
10. The third reason given is that the review committee is reviewing the question of categorisation and fitment of the employees of the Board including the Sub-Assistant Engineers and that the said report is expected soon is no longer available, because it is admitted that the committee has given its report placing the Sub-Assistant Engineers in the category Supervisory-C and this placement of the Sub-Assistant Engineers, according to the petitioner, is not in accordance with the Wage Board award.
11. Thus, it is found that none of the three reasons given by the opposite party in Annexure 5 satisfies the tests of law indicated above. That apart, we have no doubt in our mind that the question of categorisation of the employees under the Board which involves the question of evaluation of the work of different classes of employees on the lines indicated in the Wage Board award involves complicated questions of law and fact. Mr. Nanda relying on a decision reported in Bombay Union of Journalists v. State of Bombay (supra), urges that if the dispute is question raises complicated questions of law and fact, the appropriate Government should not purport to reach a final decision on the said questions, because that would normally lie within the jurisdiction of the Industrial Tribunal. Even though the appropriate Government has to be satisfied prima facie about the merit of the dispute, it would not be proper for it to take upon itself the responsibility of adjudicating difficult and complicated questions of law and fact, particularly when a full and complete picture of the dispute is not available at that stage. The law as laid down in the above case fully supports the case of Mr. Nanda. Hence in view of our findings that the reasons given in Annexure 5 are not germane to the dispute and are vitiated by extraneous consideration and that the dispute involves complicated questions of law and fact we allow this application and direct issue of a writ of certiorari to quash Annexure 5 and leave it open to the opposite party to reconsider the matter in accordance with law. In the circumstances, there will be no order for costs.
G.K. Misra, C.J.
12. I agree.