G.K. Misra, C.J.
1. The State Transport Service, Cuttack, is an organisation run and managed by the Government of Orissa through the Transport Department. It carries on the activities, inter alia, of transporting public and private goods. The Orissa Road Transport Co. Ltd. is a Government company carrying on identical activities as that of the State Transport Service. The employees of both the said undertakings, who are workmen within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter to be referred to as the Act), have organised themselves into a Union known as All Orissa Motor Transport Employees' Federation. It is formed and registered under the Indian Trade Unions Act, 1926. On 7th of August, 1968, the General Secretary of the Federation submitted a charter of demands (Annexure 1) to the Secretary to the Government of Orissa, Transport Department, Bhubaneswar, and also to the Director-in-charge, Orissa Road Transport Co. Ltd., Cuttack.
The charter of demands consisted of various items of demands touching the service conditions etc., of the workmen of the State Transport Service and of the Orissa Road Transport Co. Ltd. Being satisfied that an industrial dispute existed or was apprehended between the workmen and their employers, the. Conciliation Officer, Orissa, acting under Section 12(1) of the Act initiated conciliation on 21-9-68 on the disputes. In course of the conciliation proceedings some demands were settled and a memorandum of settlement was drawn up on 25-10-68 under Section 12(3) of the Act. The disputes which could not be settled were further conciliated upon; but no agreement between the parties could be reached. The conciliation ended in a failure report (Annexure 2) to the opposite party on 31-7-69 under Section 12(4) of the Act. With regard to demands Nos. 3 and 5, the opposite party informed the petitioner by the letter (Annexure 3) that the disputes did not merit a reference. Demands Nos. 3 and 5 and the reasons given by the opposite party may be noted hereunder for easy reference.
Demands Reasons for non-reference
3. Pension-cum-gratuity facilities.
That the pension-cum-gratuity facilities A set of rules prescribing service conditions
as enjoyed by the Government employees of the employees of the S.T.S. is under
may please be extended to the employees consideration of Government. After finalisation of
of State Transport Service and Orissa these rules the question of applying these rules in,
Road Transport Co. Ltd. respect of employees of O.R.T. Co. can be taken up.
5. Daily bhatta or over-duty allowance.
That the existing rate of daily 'bhatta' During the period of enforceability of the
or 'over duty allowance' as admissible memorandum of settlement dated 16-12-1966 the
to the running staff of the State Trans- demand is not tenable.
port Service and Orissa Road Transport Co.
Ltd., may please be revised in the
following manner considering the
High Price of the market:
I. Driver: 3 paise per K.M. operated.
II. Conductor: 2 paise per K.M. operated.
III. Cleaner: 2 paise per K.M. operated.M
Against the order of the opposite party refusing to make a reference in respect of demands Nos. 3 and 5 this writ application has been filed under Article 226 of the Constitution.
2. Mr. Nanda for the petitioner contends that the reasons given for non-reference are irrelevant and extraneous to the questions in issue. The contention requires careful examination.
3. We would first deal with demand No. 5. As has already been stated this demand by the petitioner was for enhancement of the daily batta or over duty allowance. The reason for not referring this demand to the Industrial Tribunal for adjudication is that during the period of enforceability of the memorandum of settlement dated 16-12-66 the demand is not tenable. The reason for non-reference is based entirely on a legal stand. Section 19 of the Act deals with the period of operation of settlement and awards. A settlement shall come into operation on such date as is agreed upon by the parties to the dispute, and if no date is agreed upon, on the date on which the memorandum of the settlement is signed by the parties to the dispute. In this case, the memorandum of settlement was signed on 16-12-66. There was no agreement that the settlement shall come into operation on any other date. Thus the memorandum of settlement came into force with effect from the date on which it was signed. As would appear from the counter-affidavit the Union had given a notice of termination of the settlement on 3-8-68. The stand of the opposite party is that the settlement remained in operation till 3-10-68, and that the charter of demands having been submitted on 7-8-68 there was no dispute on this demand between the parties on the date when the demand was submitted.
4. The contention is based on Section 19(2) of the Act which runs thus :--
Such settlement shall be binding for such period as is agreed upon by the parties, and if no such period is agreed upon for a period of six months from the date on which the memorandum of settlement is signed by the parties to the dispute and shall continue to be binding on the parties after the expiry of the period aforesaid, until the expiry of two months from the date on which a notice in writing of an intention to terminate the settlement is given by one of the parties to the other party or parties to the settlement.
5. The learned Government Advocate contends that as the charter of demands was submitted within two months of the service of notice, the settlement still continued in force and a dispute could not be raised within two months of the service of notice.
6. In our view, this contention is not well-founded. No provision of the Act has been brought to our notice that a fresh dispute cannot be raised while the settlement continues to be in operation. A reference to Section 23 of the Act, on the other hand, indicates that strikes and lock-outs are prohibited during the period of operation of a settlement. There is no corresponding prohibition in the matter of raising a fresh dispute.
7. Moreover, the existence or otherwise of a dispute must be determined in relation to the date of reference. In this case the reference was refused on 15th of December, 1969 which was more than a year after the service of notice by the workmen on 3-8-68. See Bombay Union of Journalists v. The 'Hindu', Bombay : (1961)IILLJ436SC , Workmen of Western India Match Co. Ltd. v. Western India Match Co. Ltd. : (1962)ILLJ660SC , and Western India Watch Co. Ltd. v. Western India Watch Co. Workers' Union : (1970)IILLJ256SC . In all these cases it was held that the jurisdiction of the Tribunal to proceed in the matter wholly depends on whether the industrial dispute referred to it for adjudication existed or was apprehended on the date of reference. The reason given by the opposite party in not referring demand No. 5 to the Tribunal that during the period of enforceability of the memorandum of settlement dated 16-12-66 the demand is not tenable, is an error of law apparent on the face of the record and is liable to be quashed by issue of a writ of certiorari.
8. Regarding dernand No. 3, the reason given for non-reference was that a set of rules prescribing service conditions of the employees of the S.T.S. is under consideration of the Government and after finalisation of these rules the question of applying the rules in respect of employees of the O.R.T. Co. can be taken up. So far as the second part of the reason is concerned, it is wholly irrelevant and extraneous to the question in issue. It is not disputed that the service conditions of the employees of the O.R.T. Co, are different from those of the S.T.S. Even assuming that a set of rules is in contemplation so far as the S.T.S. is concerned, the rules so framed ultimately cannot be ipso facto applied to the employees of the O.R.T. Co. The Directors of the O.R.T. Go. may not accept the service conditions applicable to the employees of the S.T.S. As the reason given is wholly extraneous and irrelevant this part of the order is liable to be quashed,
9. The next question for consideration is whether the fact that a set of rules prescribing service conditions of the employees of the S.T.S. is under consideration is a relevant reason for not referring the dispute to the Industrial Tribunal. Mr. Nanda contended that there is nothing in this reason to show that the rules prescribing service conditions would deal with pension-cum-gratuity. We are not impressed by this argument. The reply given by the opposite party is in relation to demand No. 3 which specifically relates to pension-cum-gratuity. The answer must be read in relation to the demand. Moreover, service conditions would always include provisions regarding pension and gratuity. See State of Madhya Pradesh v. Shardul Singh : 3SCR302 .
10. Mr. Nanda next contended that the reason given does not indicate the time-limit within which the rules would be framed nor does it give an idea of the various factors to be taken into consideration for fixing the pension and gratuity. It may be so but the reason given by the opposite party cannot be said to be irrelevant or extraneous to the question in issue.
11. In this connection the power and jurisdiction of this Court in dealing with a matter under Sections 10(1) and 12(5) of the Act may be noticed. Section 12(5) says that if, on a consideration of the report referred to in Sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Board, Labour Court, Tribunal or National Tribunal, it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor. It is no longer in dispute that Section 12(5) must be read with Section 10(1) whereunder if the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing, make the reference. The scope of these two provisions was authoritatively pronounced in Bombay Union of Journalists v. State of Bombay : (1964)ILLJ351SC .
12. If the dispute in question raises questions of law the appropriate Government should not purport to reach a final decision on the said questions of law as that lies normally within the jurisdiction of the Industrial Tribunal. On disputed questions of fact the appropriate Government cannot reach final conclusions for identical reasons. All the same, however, the Government is precluded from examining if the dispute has merits prima facie. If the claim is patently frivolous or clearly belated, the appropriate Government may refuse to make a reference. Similarly, if the impact of the claim on the general relations between the employer and the employees is likely to be adverse the matter may be taken into account whether a reference would be made or not. Thus a prima facie examination of the merits cannot be said to be foreign to the inquiry which the appropriate Government is entitled to make under Section 10(1).
13. The power of this Court while issuing a writ of certiorari is also restricted. The High Court would not examine the reasons like an appellate Court. The propriety or correctness of the reasonings cannot be questioned. If, however, the appropriate Government took into account a consideration which was irrelevant or extraneous, then a writ of mandamus may issue but not otherwise.
14. In this case so far as the first reasoning is concerned, it may not be comprehensive and precise but yet it cannot be characterised as irrelevant or extraneous. We cannot accordingly quash the first part of the reasoning given in relation to demand No. 3.
15. On the aforesaid analysis, the writ application is allowed in part. A writ of certiorari be issued quashing the reasons given in relation to demand No. 5, and the second part of the reasons given in relation to demand No. 3. A writ of mandamus be issued to the opposite party for reconsideration of the matter in relation to demand No. 5 and second part of demand No. 3 in accordance with law. In the circumstances, there will be no order as to costs.
B.C. Das, J.
16. I agree.