J.N. Kaushal, J.
1. In the year 1957, an industrial dispute between the workmen and the management of the Amritsar Reyon and Silk Mills (Private), Ltd., Amritsar, was referred to the industrial tribunal, Punjab, Jullundar. The matters in dispute, which were referred, were eight in number and one of them related to the clerks of the mills along with the workmen. The dispute was in these terms:
Whether the scales end grades of pay should be fixed for the salaried workmen If so, what should be the grades of each category of workmen.?
When the matter was pending before the industrial tribunal, all the clerks and the management entered into an arbitration agreement for the decision of the fixation of scales and grades of pay, etc., of the clerical staff. Sri Panna Lal was appointed the sole arbitrator on 28 October 1958. The said arbitrator filed his award on 8 November 1958 before the industrial Walle giving award, the industrial tribunal observed on 10 March 1959, as under:
In the case of clerical staff one arbitration award has been filed which has been accepted by both the parties where grades and (sic) for the clerical staff have been fixed. This is an additional reason to fix grades and scales for other categories of workmen. I, therefore, fix the following scales for the clerical staff, the same as has been given by the arbitrator and which shall be read as part of this award, annexure A.
The award of the industrial tribunal as well as the arbitration award given by Sri Panna Lal on 8 November 1958, were published in the Punjab Government Gazatte dated 17 April 1959.
2. The arbitration award dated 8 November 1958, between the clerks and the management remained in force and on 20 March 1968, the Amritsar Textile Clerks' Association served the management, namely; the Amritsar Rayon and Silk Mills (Private), Ltd., Amritsar, with a notice of their intention to terminate the arbitration award as contemplated under Section 19(6) of the Industrial Disputes Act, 1947, with effect from 20 May 1963. Later on, Sri Waryam Singh, an employee in the clerical staff, was informed by the management through its director-vide their letter dated 11 June 1963-that 27 years of his service were expiring on 25 June 1963, and in terms of Clause 8 of the arbitration award dated 8 November 1958, he was to retire from service on 26 June 1963. He was, therefore, asked to take notice that his retirement would take effect on 26 June 1963, and that he should receive payment of his dues on that date. On this action being taken against Sri Waryam Singh, the Amritsar Textile Clerks' Association served the management with a demand notice on 26 June 1963. A preliminary fact-finding enquiry into the said demand notice was held by the conciliation Officer. Amritsar. The conciliation officer, however, after due enquries, failed to arrive at any settlement and made his report to the Punjab Government, as contemplated by Section 12(4) of the Industrial Disputes Act.
3. Later on, the Punjab Government informed the association which had raised the dispute-vide their letter dated 25 September 1963, annexure B-that the demand notice dated 26 June 1968 served on the management of the Amritsar Rayon and Silk Mills (Private), Ltd. Amritsar, had been filed. On receipt of this letter, the Amritsar Textile Clerks' Association, which hereafter will be called the petitioner, made a written representation on 22 October 1963, to the Labour Commissioner, Punjab, given all the points which they wanted the Government to consider and requested that the matter might be reconsidered and the dispute referred to the industrial tribunal for adjudication, but this representation was rejected by the Government on 3 August 1964, and it was stated that the points raised in the representation were taken into consideration in the preliminary stage and no new points had been brought forward justifying the consideration of the previous decision annexure D. The petitioner was not ret satisfied with the decision of the Government and another representation dated 16 August 1964 was made for the reconsideration of the whole matter. The Government again rejected the representation and stated that the points raised had again been thoroughly considered and the Government did not filed any justification to reopen the case particularly in the light of the decision of the industrial tribunal according to which there could not be part-termination of any award, annexure E. The present writ petition under Articles 226 and 227 of the Constitution has been filed by the petitioner for issuing a mandamus to the Punjab Government to refer the dispute to the industrial tribunal for adjudication.
4. Sri J.V. Gupta, learned Counsel for the petitioner, has argued that the decision of the Punjab Government in refusing to refer the dispute for adjudication was unsustainable for the following reasons:
(1) The Government did not deny the existence of the industrial dispute, but, on the other head, had decided the dispute itself. This was not permissible in law.
(2) The order refusing to refer the dispute for adjudication does not in terms say that is was not expedient to refer the dispute.
(3) The order does not show that the conciliation offer's report was taken into consideration by the Government.
(4) The grounds on which reference has been declined are irrelevant and not germane for the decision of the matter.
(5) Since various questions of law were involved, it was not open to the Government to pronounce upon them finally because this lay within the jurisdiction of the industrial tribunal.
On behalf of the petitioner, reliance is placed on a Division Bench decision of this Court in Workmen of Oswal Weaving Factory v. State of Punjab 1967-I L.L.J. 557. According to the learned Counsel, this case was fully applicable to the facts of the present case and consequently the orders of the Government contained in annexures B, D and E should be quashed.
5. On behalf of the State, it is argued that reference was declined by the Government, since in their view it was not expedient that the dispute should be referred. Reliance is placed on Para. 16 of the return filed by the State. It is stated therein that expediency of making a reference was to be judged by the State Government on which basis the matter was not considered fit for reference. For the purpose of placing reliance on the averments in the return, support was sought from a decision of the Supreme Court in Swadeshi Cotton Mills Company. Ltd. v. State Industrial Tribunal, Uttar Pradesh 1961-II L.L.J. 419.
6. On behalf of the Amritsar Rayon and Silk Mils (Private), Ltd., respondent 2, Sri Bhagirath Dass argued that it was open to the Government to examine the merits of the dispute in a prima facie was and so long as the reason given by the Government were germane to the controversy, the order could not be set aside by the High Court in exercise of its powers under Articles 226 and 227 of the Constitution. Reliance was placed on Bombay Union of Journalists v. State of Bombay v. K.P. Krishanan 1960-II L.L.J. 592; and South Indian Bank Ltd. v. A.R. Chacko 1964-I behalf of the mills (respondent 2) that an industrial dispute did exist. Paragraph 16 of their return is relevant in that connexion. It reads:
The existence of the dispute is not for the petitioners to decide, but it was for the Government to decide. The mere existence is not sufficient for the Government to make a reference. The Government has to take into consideration various other factors while making a reference. The petitioners are not entitled as a matter of right to get a dispute referred.
After hearing the learned Counsel on both sides and giving my anxious consideration to the facts of the case, I am of the opinion that this petition should succeed. The case is covered fully by the decision of the Division Bench of this Court in Workmen of Oswal Weaving Factory case 1967-I L.L.J. 557 (vide supra). In order to see that the case is covered by the said Division Bench decision it is necessary to reproduce the orders which were passed by the Government while refusing to make a reference. The order annexure B reads thus:
With reference to your demand notice dated 26 June 1963 served on he management of the concern cited as subject, I am directed by Government to inform you that enquiries have revealed that the services of Waryam Singh were terminate by the management after completion of his 27 years of service in pursuance of the award published in the Punjab Government Gazette, dated 17 April 1959, which still holds goods. Your contention that the clause of the said award pertaining to the clerical state was validly terminated pales into insignificance in face of the award of the industrial tribunal, Patiala, in Reference No. 9 of 1962 in the case of Technological Institute of Textiles, Bhiwani, wherein is was held that an award could not be terminated in part. This being the position, the case has been filed.
While rejecting the representations filed by the petitioner, the Government again stated in annexure E as follows:
With reference to representation dated 16 August 1964, of the Joint Secretary, Bhartiya Mazjoor Sangh, Amritsar, and your subsequent representation, dated 16 October 1964, on the subject noted above, I am directed so inform you that the points raised by you have again been thoroughly considered. Government, however, do not find justification to reopen this case particularly in the light of the decision of the industrial tribunal according to which there could not be part termination of any award. This being the position, the representations have again been rejected.
7. In Workmen of Oswal Weaving Factory case 1967-I L.L.J. 557 (vide supra) it was held at p. 564-.that in deciding whether to make a reference or not [under Sections 10(1) and 12(5) of the Industrial Disputes Act], the appropriate Government is acting in an administrative capacity and not in exercise of judicial or quasi-judicial powers but this does not mean that the decision of the Government is not liable to be declared non est and that the High Court cannot issue a direction to the appreciate Government to decide the matter in accordance with law where it is found that reference has been declined either on extraneous consideration or mala fide or without even referring to the report of the conciliation officer under Section 12(4) of the Act.
8. After examining the decided cases, the following propositions were laid down:
(1) That an appropriate Government acting in exercise of its powers under Section 10(1) read with Section 12(5) of the Act exercises administrative functions and not judicial or quasi-judicial functions;
(2) That in exercise of its powers under Section 10(1) of the Act, the appropriate Government has a discretion to refer or not to refer any dispute to a labour court or tribunal but such discretion has so be exercised in accordance with the provisions of the Act itself, i.e., the appropriate Government can decline to make a reference only on two grounds, viz.-
(i) that there is no industrial dispute which can be referred; and
(ii) that it is not expedient to make a reference in the circumstance of the case;
(3) If an appropriate Government declines to make a reference on any of the abovementioned two permitted grounds, the decision of the Government would not be amenable to a writ or direction of the High Court and it would not be open to the Court to compel the Government to make a reference. The High Court will not sit in appeal over the decision of the appropriate Government on any of the above-mentioned two matters;
(4) An appropriate Government can be compelled by a writ in the nature of mandamus to consider the matter as required by Section 12(5) of the Act and then to exercise He accretion under Section 10(1) of the Act in accordance with law of it is either admitted or proved that conciliation proceedings had taken place and a report had been submitted by the conciliation officer under Section 12(4) of the Act, but that the State Government had not seen the report of the conciliation officer or taken it into consideration at all before deciding whether to make a reference or not;
(5) A writ of mandamus would also issue if the Government declines to make a reference under Section 12(5) of the Act, without recording the reasons for such refusal and without communicating the same to the parties concerned; and
(6) An appropriate writ would also issue to the State Government if it is admitted or proved that the refusal to make a reference of the dispute in question is not bona fide or is actuated by making or is based on considerations which are wholly irrelevant or extraneous and are not germane to the statutory considerations on which reference can be declined.
9. At p. 566 of the judgment, it was further observed that-. The Government could form a prima facie view about the merits of the dispute and come to a tentative finding in order to decide whether there was in fact an industrial dispute between the parties or not and more so in order to determine whether it is expedient in the circumstances of this case to make a reference or not, but the Government has no jurisdiction to usurp the function of the Industrial court or tribunal and to give a final finding on the matter in dispute and justify the refusal to make a reference on the basis of that finding.
10. Applying the law laid down in the above-mentioned authority, there is no doubt in my mind that the Government in the present case has finally decided the dispute which was raised before them. The two orders reproduced above do not indicate that the master was examined by the Government in a prima facie way. The point whether an award could be terminated in part or not was a matter which should have been left by the Government for the decision of the industrial tribunal.
11. In Bombay Union of Journalists case [1964-I L.L.J 351] (vide supra) the Supreme Court has observed at p. 354:. when the appropriate Government considers the question as to whether any industrial dispute should be referred for adjudication or not (under Section 10 of the Industrial Disputes Act. 1947), it may consider, prima facie, the merits of the dispute and take into account other relevant considerations which would help it to decide whether making a reference would be expedient or not. It is true that 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, became that would normally lie within the jurisdiction of the industrial tribunal....
I am, therefore, of the considered opinion that the Government had travelled beyond its jurisdiction in passing the orders under dispute. The orders also do not show in terms that the Government refused to refer the dispute for adjudication because it was considered inexpedient to make a reference. No help can be derived by the State from Para 16 of the return, since the affidavit in support of the return has been filed by Sri M.K. Jain, conciliation officer. Surely; the conciliation officer is not in a position to depose on oath as to what weighed with the Government when they passed the orders under dispute. If the officer who had passed the orders had stated on oath that the expedie(sic) of making a reference was judged at the time of passing the disputed orders; matter would have been quite different. Then there is no reference to the report of the conciliation officer in the orders under dispute.
12. The cases on which reliance was put by Sri Bhagirath Dass do not lay down anything contrary to what has been laid down by this Court in Workmen of Oswal Weaving Factory case [1987-I L.L.J. 557] (vide supra). As effect was made to justify the orders passed by the Government by relying on South Indian Bank, Ltd. [1964-I L.L.J. 19], (vide supra) where it was observed by the Supreme Court that the provisions of the award fixing wage-scales and dearness allowance, etc., even after termination will operate as terms of contract of service unless it is displaced by another contract. Those questions of law, as observed already, are for the final determination of the industrial tribunal and not for the decision of the Government.
13. Due to all the reasons stated above, the impugned orders are set aside and a writ of mandamus is issued to respondent 1 to decide the matter (sic) in accordance with law. In the circumstances of the case there will be no order as to costs.