Prem Chand Jain, J.
1. The workmen of New Snow View Transport Private Limited, Pathankot, approached this Court under Arts. 226 and 227 of the Constitution of India, for the issuance of an appropriate writ, order or direction, quashing the award made by respondent No. 2, dated 28th January, 1967, published in the Punjab Government Gazette dated 24th February, 1967 (copy Annexure 'F' to the petition). This petition came up for hearing before me sitting singly on May 2,, 1969, when the same was referred to a larger Bench for decision as there was a conflict in the two decisions of this Court, one reported in Panipat Woollen & General Mills Co. Ltd. v. Industrial Tribunal Punjab, (1962) 1 Lab LJ 555 (Punj) and the other reported in Gondhara Transport Co. (Pvt.) Ltd. v. State of Punjab, AIR 1966 Punj 354. In Panipat Woollen and General Mills Company, Ltd., 1962-1 Lab LJ 555 (Punj) the view taken by A. N. Grover, J. (as he then was), was, 'Even otherwise there can be no doubt that the order of reference under Section 10(1) is an administrative act of the Government. If there is an industrial dispute, the factual existence of which could not really be in dispute, a fresh determination by the Government of the question of the expediency of making a reference does not amount to a review of a question judicially determined previously and, therefore, a prior order of the Government does not affect the jurisdiction of the Government to exercise the statutory power under Section 10(1)(c) of the Industrial Disputes Act.'
In Gondhara Transport Co. (Pvt.) Ltd. AIR 1966 Punj 354 R.S. Narula, J. took a different view and observed thus:--
'Considering the scheme, objects and purposes of the relevant provisions of the Act as a whole it appears to be clear that words 'at any time' in Section 10(1) of the Act refer to a period which commences with the issue of demand notice or with any other legal steps by which the proceedings are initiated for making a reference to a Labour Court or Tribunal and which period terminates with an order of the appropriate Government either making a reference of declining to make it for any valid reason. Once the Government has arrived at and given out its decisionone way or the other, Section 10(1) of the Act ceases to exist for that particular dispute or demand and with such a decision of the Government the words 'at any time' contained in Section 10(1) of the Act also cease to operate.'
From the report it is clear that the judgment of A. N. Grover, J. in Panipat Woollen and General Mills Co. Ltd., 1962-1 Lab LJ 555 (Punj) was not cited before R. S. Narula, J. In view of this conflict and in order to get an authoritative decision, I thought it desirable and proper to refer the matter to a larger Bench and that is how this matter has been placed before us for decision.
2. Mr. Soni, learned counsel for the petitioners, vehemently contended that under Section 10(1) of the Act, an order of the appropriate Government refusing to make reference at one stage could be reviewed subsequently and there was no legal bar for the exercise of such a power over and again by the State Government. Reliance in support of his contention was placed on a decision of the Supreme Court in the State of Madras v. C. P. Sarathy, AIR 1953 SC 53, two decisions, of this Court in Panipat Woollen and General Mills Co. Ltd., 1962-1 Lab LJ 555 (Punj) (Supra) and Rawalpindi Victory Transport Co. (P) Ltd. v. State of Punjab, (1963): 65 Pun LR 901, two of the Madras High Court in Sri Rama Vilas Service Ltd. v. State of Madras, represented by Secy, to Govt., AIR 1956 Mad 115, and Workmen of Dalmia Cement (Bharat) Ltd. v. State Govt. of Madras, AIR 1969 Mad 21, decision of Allahabad High Court in L. H. Sugar Factories and Oil Mills Pvt. Ltd. Pilibhit v. State of Uttar Pradesh, AIR 1962 All 70, of Rajasthan High Court in Good Year India Ltd. Jaipur v. Industrial Tribunal, Rajasthan, Jaipur, AIR 1969 Raj 95, and of Madhya Pradesh High Court in Rewa Coal Fields Ltd., Dhanpuri, Shahdol v. Central Govt. Industrial Tribunal-cum-Labour Court, Jabalpur, AIR 1969 Madh Pra 174. It was also contended by Mr. Soni that the decision of this Court in Gondhara Transport Co. (Pvt.) Ltd., AIR 1966 Punj 354 did not lay down the correct law. On the other hand, it was contended by Mr. N. K. Sodhi, that the appropriate Government had no power to review its own previous order when once it had refused to refer the same for adjudication to a Labour Court. It was also contended that the case in Gondhara Transport Co. (Pvt.) Ltd., AIR 1966 Punj 354 was correctly decided.
3. After giving my thoughtful consideration to the entire matter, I am of the view that there is considerable force in the contention of the learned counsel for the petitioners and in view of the latest unreported decision of the Supreme Court in Civil Appeal No. 1914 of 1968 = (AIR 1970 SC 1205) in M/s. Western India Match Co. Ltd, y. Western India Match Co. Workers' Union, decided on January 9, 1970, this matter needs no further scrutiny. The following observations of their Lordships of the Supreme Court may be read with advantage:--
'The next question is whether the expression 'at any time' in Section 4(k) means what its literal meaning connotes, or whether in the context in which it is used it has any limitations. Counsel for the company argued that the concerned workman was admittedly not a member of the respondent-union in the beginning of 1959 when the State Government refused to make the reference, that he became a member of the respondent-union in July 1962, that it was thereafter that the respondent-union revived the said dispute which had ceased to be alive after the Government's said refusal and that it was at the instance of the union that the Government later on changed its mind and in August 1960 agreed to make the reference. The contention was that the Government, having once declined to refer the dispute, could not change its mind after a lapse of nearly six years after the dispute arose and that though the expression 'at any tune' does not apparently signify any limit, it must be construed to mean that once the Government had refused to make the reference after considering the matter and the employer thereupon had been led to believe that the dispute was riot to be agitated in a tribunal and had consequently made his own arrangement, the Government cannot, on a further agitation by the Union, take a somersault and decide to refer it for adjudication. It was argued that if it were so, it would mean that even if a workman, who after termination of his service, has already obtained, another employment, can still go to the union, become its member and ask the union to agitate the dispute by espousing it. Such an action, if permitted, would cause dislocation in the industry as when the employer has in the meantime made his own arrangement by appointing a substitute in place of the dismissed workman on finding that the latter had already found other employment. The Legislature, the argument proceeded, could not, therefore, have used the words 'at any time' to mean after any length of tune.
From the words used in Section 4(k) of the Act there can be no doubt that the Legislature has left the question of making or refusing to make a reference for adjudication to the discretion of the Government. But the discretion is neither unfettered nor arbitrary for the section clearly provides that there must exist an industrial dispute as defined by the Act or such a dispute must be apprehended when the Government decides to refer it for adjudication. No reference thus can be made unless at the time when the Government decide to make it an Industrial dispute between the employer and his employees either exists or is apprehended. Therefore, the expression 'at any time', though seemingly without any limits. Is governed by the context in which 'it appears. Ordinarily, the question of making a reference would arise after conciliation proceedings have been gone through and the conciliation officer has made a failure report. But the Government need not wait until such a procedure has been completed. In an urgent case, it can 'at any time', i.e. even when such proceedings have not begun or are still pending, decide to refer the dispute for adjudication. The expression 'at any time' thus takes in such cases as where the Government decides to make a reference without waiting for conciliation proceedings to begin or to be completed. As already stated, the expression 'at any time' in the context in which it is used postulates that a reference can only be made if an industrial dispute exists or is apprehended. No reference is contemplated by the section when the dispute is not an industrial dispute, or even if it is so, it no longer exists or is not apprehended, for instance, where it is already adjudicated or in respect of which there is an agreement or a settlement between the parties or where the industry in question is no longer in existence.
In 1953 SCR 334, at p. 346= (AIR 1953 SC 53 at p. 57) this Court held on construction of Section 10(1) of the Central Act that the function of the appropriate Government thereunder is an administrative function. It was so held presumably because the Government cannot go into the merits of the dispute, its function being only to refer such a dispute for adjudication so that the industrial relations between the employer and his employees may not continue to remain disturbed and the dispute may be resolved through a judicial process as speedily as possible. In the light of the nature of the function of the Government and the objection for which the power is conferred on it, it would be difficult to hold that once the Government has refused to refer, it cannot change its mind on a reconsideration of the matter either because new facts have come to light or because it had misunderstood the existing facts or for any other relevant consideration and decide to make the reference. But where it reconsiders its earlier decision it can make the reference only if the dispute is an industrial one and either exists at that stage or is apprehended and the reference it makes must be with regard to that and no other industrial dispute, (cf. Sindhu Resettlement Corporation Ltd. v. Industrial Tribunal, (1968) I Lab LJ 834 at p. 839 = (AIR 1968 SC 529 at page 533). Such a view has been taken by the High Courts of Andhra Pradesh, Madras, Allahabad, Rajasthan, Punjab and Madhya Pradesh. See Gurumurthi v. Ramulu; (1958) 1 Lab LJ 20 = (AIR 1958 Andh Pra 276); Vasu-deva Rao v. State of Mysore, (1963) 2 Lab LJ 717 (Mys) ; (1964) 1 Lab LJ 644 (Punj); Champion Cycle Industries v. State of U. P., (1964) 1 Lab LJ 724 = (AIR 1964 All 32); (1968) 2 Lab LJ 682 = (AIR 1969 Raj 95); AIR 1969 Madh Pra 174. The reason given in these decisions is that the function of the Government either under Section 10(1) of the Central Act or a similar provision in a State Act being administrative, principles such as res judicata 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. Consequently, the power to refer cannot be said to have been exhausted when it has declined to make a reference at an earlier stage. There is thus a considerable body of judicial opinion according to which so long as an industrial dispute exists or is apprehended and the Government is of the opinion that it is so, the fact that it had earlier refused to exercise its power does not preclude it from exercising it at a later stage. In this view, the mere fact that there has been a lapse of lime or that a party to the dispute was, by the earlier refusal, lead to believe that there would be no reference and acts upon such belief, does not affect the jurisdiction of the Government to make the reference,'
4. In view of the decision of the Supreme Court in M/s. Western India Match Co. Ltd., Appeal No. 1914 of 19G8, D/- 9-1-1970 = (AIR 1970 SC 1205), it is clear that in making a reference under Section 10(1) of the Act, the Government is doing an administrative act and that there is no bar in the way of the State Government, even if it has once refused to refer a dispute, to change its mind on a reconsideration of the matter either because new facts have come to light or because it had misunderstood the existing facts or for any other relevant consideration and decide to make a reference. This power of the State Government, however, is subject to the limitation that on reconsideration of the earlier decision, the reference can be made only if the dispute is an industrial one and either exists at that stage or is apprehended and the reference it makes must be with regard to that and no other industrial dispute. Thus the contrary view taken by R. S. Narula, J. in Gondhara Transport Co. (Pvt.) Ltd.. AIR 1966 Pun] 354 does not lay down the correct law and stands impliedly overruled. Consequently the decision of the tribunal on issue No. 1 to the effect that the Government having once decided to make reference on the point of gratuity scheme could not make a reference on that point subsequently, cannot be sustained and Is accordingly set aside.
5. Issue No. 2 has been decided la favour of the petitioners and it is held that the demand of the workman for the introduction of a gratuity scheme is justified. This decision of the tribunal on issue No. 2 was challenged by Mr. N. K. Sodhi, learned counsel for respondent No. 3, on two grounds, (1) that the tribunal did not consider the evidence properly and had given a wrong finding that the demand of the workmen for the introduction of a gratuity scheme was justified, and (2) that the tribunal should have framed a scheme. In my view, there is no merit in the first ground. The finding of the tribunal on issue No. 2 is based on consideration of entire evidence and is a pure finding of fact and cannot be challenged in proceedings for a writ of certiorari. There is no error of jurisdiction nor is there any error that may be apparent on the face of the record. However, as conceded by Mr. Soni learned counsel for the petitioners, there is merit in the second ground. The tribunal having decided issue No. 2 in favour of the petitioners, should have framed the gratuity scheme and for this purpose the matter shall have to go back to the tribunal.
6. For the reasons recorded above, I allow this petition, set aside the decision of the tribunal on issue No. 1 and send back the case to him for framing of the gratuity scheme. The- parties through their learned counsel have been directed to appear before the tribunal on 16-3-1970. As the matter has become very old the tribunal shall expedite it and dispose it of as early as possible. In the circumstances of the case there will be no order as to costs.
Gurdev Singh, J.
7. I agree.