K.B. Panda, J.
1. The petitioner in this application under Articles 226 and 227 of the Constitution of India seeks to quash the order (Annexure 6) passed by opposite party No. 1 the State of Orissa refusing to make a reference under Section 12(5) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), and Annexure 3 wherein he has been found guilty of the charges levelled against him.
2. The petitioner was appointed as a typist; in the Orissa Forest Corporation Ltd. and posted in the office of the Divisional Manager, Jeypore. Subsequently he was promoted to the post of Assistant Accountant in January, 1967. He continued as such till 13-7-1970 when he was suspended and charge-sheeted on several allegations of misconduct. Breach of trust connivance with ulterior motive, negligence in duties, etc. The explanation of the petitioner in respect of the charges were found not satisfactory. Accordingly one Shri N. Choudhury Sub-divisional Manager, Vijayalaxmi Saw Mill, Umiri was appointed as Enquiring Officer to probe into the matter. It was a domestic inquiry wherein the petitioner was found guilty of the charges (Annexure D). The management on consideration of the finding of the Enquiring Officer and after giving the petitioner a second show cause notice (Annexure |E) terminated the services of the petitioner and forefeited his security deposit in terms of employment (Annexure 3).
3. Thereafter, the Orissa Forest Corporation Employees' Association, Jeypore appears to have espoused the cause of the petitioner and raised an industrial dispute before the conciliation officer, Jeypore. This ended in a failure and a report under Section 12(4) of the Act was submitted to Government which on consideration of the relevant materials was satisfied that there was no cause for reference of the dispute for adjudication and accordingly passed the impugned order (Annexure 6).
4. Mr. Murty, learned advocate appearing on behalf of the petitioner raised two points, namely,
(1) That the petitioner having been appointed as Assistant Accountant by the Managing Director, termination of service by the District Manager is unwarranted ; and
2. that no second show cause notice has been given to the petitioner and even if Annexure 1 be viewed as the second show cause notice, yet he having been given forty-eight hours' time only to offer his explanation, the same is prima facie against natural justice and bespeaks of mala fides.
Incidentally it was also urged by Mr. Murty that opposite party No. 1 State of Orissa while refusing to refer the dispute under Section 12(5) of the Act have acted arbitrarily. In as such as the failure report of the conciliation officer that bespeaks ofmala fides on the part of the Divisional Manager has, not been taken into consideration.
5. We do not consider that any of the points raised by Mr. Murty can prevail. That the petitioner had been initially appointed by the Divisional Manager is not challenged. The contention on behalf of the petitioner that his promotion as Assistant Accountant was effected by the Managing Director and so the Divisional Manager was incompetent to inflict the punishment is barren of substance in view of the assertion in the counter-affidavit which is supported by Annexure 4 dated the 2nd July, 1971 wherein the Managing Director on a letter of the Divisional Manager seeking clarification has replied that the Divisional Manager is competent to appoint the Assistant Accountant in the office.
6. Regarding the second point that the petitioner was not given adequate time, the same was not argued earlier and in fact the petitioner has conceded on his part that be did not pray for any extension of time on the grounds of inadequacy and in fact he has offered his explanation without any reservation. Thus the contention that the petitioner got prejudiced when he was called upon to explain within 48 hours of the receipt of charges is of no consequence.
7. Under Section 12(5) of the Act, the appropriate Government while refusing to make a reference were required to record and communicate to the parties concerned its reasons therefor. A perusal of Annexure 6 does not give us the impression that there has been any violation of the requirements of Section 12(5) of the Act. Accordingly we are not inclined to interfere with the matter.
8. In the result, we find no merit in this application which is dismissed, but, in the circumstances without costs.
R.N. Misra., J.
9. I agree.