Harbans Singh, J.
1. D.K. Jindal, a clerk in the State Bank of India, Ambala Cantonment branch, was suspended on1 December 1960. There after an enquiry was held by one Sri M.N. Muttu deputed for the purpose by the head office and as a result of that enquiry, after given an opportunity to show cause, he was dismissed from service on 28 December 1962. On an appeal being field, the appellant authority, without going into the merits of the case, directed that the petitioner be given an opportunity of personel hearing by the punishing authority and remitted the case back to the said authority for carrying out the aforesaid direction. After affording him personal hearing, the punishing authority dismissed him again by an order, dated28 June1963. The case of the petitioner was taken up by the State Bank Of India Staff associates, of which the petitioner was a member. The conciliation officer tried to bring about an amicable settlement between the management on one side and the association and Jindal on the other and ultimately he reported his failure to the Government. On the matter going to the Union Government refused to refer the dispute for adjudication-vide its letter dated 17 April 1965(annexure G to the petition)-the relevant of which is as follows:
I am directed to say that as the decision to dismiss Jindal was taken after conducting an enquiry, Government do not find justification to intervene in the matter. In the circumstances, the Government of India do not find justification to refer the dispute for adjudication.
Jindal thereafter filed the present writ under Act. 226of the Constitution of India challenging the aforesaid order.
2. The main grievance of the learned Counsel for the petitioner was that the Government has, by this order, given a decision on the merits of the case which it was not entitled to do. The real controversy between the petitioner and the management was that, according to the petitioner, the so called enquiry that was conducted was merely a favor, that, in fact, he was not given any proper opportunity to defead himself in the aforesaid officer were perverse: that the management of the bank acted in bad faith while dismissing Jindal and that all these questions, namely, whether proper opportunity was affordable or not, whether the finings of the enquiry officer were perverse an d whether the management acted in had faith, could be determined only by a board, labour courts, tribunal or national tribunal to whom the dispute should have been referred under Section 10(1) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), and that under the aforesaid Act the appropriate Government is only entitled either to refer or refused to refer an industrial dispute for adjudication and is not competent to record a finding on the merits of the dispute between the praise either on a question of fact or law, and, furthermore, under Subsec. (5) of Section 12 of the Act, where the appropriate Government refuses to make a reference, it must record the reason for doing the same and in as much as the appropriate Government has not given any reasons, it has failed to perform it a duty.
3. When the matter came up before my learns brother Kaushal, J., it was urged on both if of the petitioner that the case was covered by a Division Bench judgment of this Court in Workmen of Oswal Weaving Factory v. State of Punjab1967-I L.L.J. 557. On the other hand, Sri H.L. Anand, on behalf of the union, urged that in the first instance, the aforesaid authority did not help the petitioner and, in the alternative, the same was opposed to the view of the Supreme Court in Bombay Union of Journalists v. State of Bombay 1964-I L.L.J. 351. Considering that the matter raised was importance, the learned Judge felt that the same should be more authoritatively decided by a larger Bench and hence the matter has come up before this Bench.
4. The relevant provision requiring consideration for deciding the controversy between the parties are Sub-section (1) of Section 10 and Sub.secs. (4) and (5) of Section 12 the relevant portions of which are as follows:
10. (1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing-
(a) refer the dispute to a board for promoting a settlement thereof, or....12. (4) If no such settlement is arrived at, the conciliation effect shall, as soon as practicable, after the close of the investigation, said to the appropriate Government a full report setting forth the stops taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full settlement of such facts and circumstances and the reasons on account of which, in his opinion, a settlement could not be arrived at.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. Which the appropriate Government does not make such a reference, it shall record and communicate to the parties concerned its reasons therefor.
These provisions were consideration at length by a Bench of this Court in the case relied upon by the counsel for the petitioner, namely, Workmen of Oswal Weaving Factory v. State of Punjab1967-I L.L.J. 557 (vide supra). It is not necessary to go over the ground so thoroughly covered by Narula. J; in the judgment which he delivered, speaking for the Bench, in that case. After discussing the relevant cases on the point, at p. 566 of the report, the learned Judge laid down the following proposition:
(1) That an appropriate Government acting in exercise of its power under Section 10(1) read with Section 12(5) of the Act exercise administrative function and act judicial or quasi-judicial functions.
(2) That in exercise o its power under Section 10(1) of the Act., the appropriate Government has a discretion to a labour court or tribunal, but such discretion has to be exercised in accordance with the prevention of the Act itself, i.e; the appropriate Government can decline to make a reference only 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 circumstances 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 work or direction of this Court and it would not be open to the Court to compel the Government to make a reference. This Court will not sit in appeal over the decision of the appropriate Government on any of the abovementioned two matters;
(4) An appropriate Government can be compelled by a writ in the nature of mandamus by Section 12(5) of the Act and then so exercise its discretion under Section 10(1) of the Act in accordance with law if 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, under 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, witout recording the reasons for such refusal and without communicating the same to the parties concerned.
(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 malice or is based on consideration which are wholly irrelevant or extraneous and are not germane to the reference can be declined.
Counsel for the union has no quarrel with the proposition of law as laid down above. He, however, stressed that, as observed by the Supreme Court in Bombay Union of Journalists case 1964-I L.L.J. at 355.
a prima facie examination of the merits cannot be said to be foreign to the enquiry which the appropriate Government is entitled to make in dealing with a dispute under Section 10(1).
In the abovementioned case the reasons given by the Government in refusing to make a reference were as follows at pp. 358-364:
(1) The termination of service of Smt, Aruna Mukherji and M.T. Thomas appears to be an act of retrenchment on the part of the management for which the management is willing to pay all the legal dues to the retreched persons; and
(2) in efficiency the said termination the management does not appear to have acted mala fide or vindictively nor practiced victim for trade union activities.
The argument of the workers union in that case, as in the present case, was that in dealing with the merits of the dispute while deciding the question as to whether a reference should be made or not under Section 12(5) of the Act, the appropriate Government acted illegally, improperly and beyond its jurisdiction. In repelling this argument, Gajendra gadkar. J(as he then was), delivering the judgment of the Court, observed as follows at pp. 354-355:
It is true that if the dispute in question raises question of law, the appropriate Government should not purort to reach a final decision on the said question of law, because that would normally lie within the jurisdiction of the industrial tribunal. Similarly, on disputed question of fact, the appropriate Government cannot purport to reach final conclusions, for that again would be the province of the industrial tribunal. But it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decided the question as to whether its decides the question as to whether its power to make a reference should be exercised under Section 10(1) read with Section 12(5), or not....
This Supreme Court case was duly noticed in the Bench decision of the Court noted above. Narula, J. after formulating the six points, at1967-I L.L.J. 557 at 566 567 of the report observed as follows:.The Government could form a prima facie view about the merits of the dispute and came to a tentative finding in order to decide whether there was in fact an industrial dispute between the parties or not and mere 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 to give a final finding on the matter in dispute and justify the reference to make a reference on the basis of that finding....
5. It is obvious, therefore, that so far as the general proposition of law is concerned, there is in fact, me conflict between the two decisions noted above. The broad connection of the learned Counsel for the petitioner, therefore, that Government, in considering the question of expediency or otherwise of referring a dispute for adjudication, cannot, even prima facie, take into consideration the merits of the case, must be replied. No doubt in the Punjab case the order of the Government was quashed and the matter was directed to be reconsidered by the State Government, but the mala reason for doing this was that the impugned order clearly showed that the State Government did not, at all, apply its mind to the report of the conciliation officer. In that case the conciliation officer, inter alia, had stated in his report as follows:.As the dismissal of Bhola Nath by the management is totally unjustified and improper I am left with no option but to recommend the reference of this case to adjudication as per draft enclosed.
The orde of the Government refusing to refer the matter did not contain any reference to this report but it merely stated as follows (at p. 560):
Since Bhola Nath was found drunk in the premises of the factory which tanatamounts to serious miseendust, the action of the management in removing him from service appears to be in order.
6. Met only was there no reference in this orde to the report of the conciliation officer who had recommended the reference but even in the written statement filed by the State it was not stated that the report of the conciliation officer was consideration by the Government as required under Section 12(5) of the Act. The Bench felt that it appeared to be doubtful as to what the decision of the Government would have been if the report of the conciliation officer recommending a reference had been considered,. It was on these peculiar facts that the Court felt that the order of the Government did not comply with the requirement of Sub-section(5) of Section 12 of the Act and the matter was referred back to the Government for reconsideration. This case a therefore, is not authority for the proposition put forward on behalf of the counsel for the petitioner.
7. The learned Counsel for the petitioner, however, most urged that the real controversy between the parties was as to whether there was a proper enquiry or not, and in the impugned order refusing to refer the matter for adjudication, the Government has not even given its tentative conclusion that the aforesaid enquiry was in order. All that is stated in the order is that in as much as the decision to dismiss Jindal was taken after conducting an enquiry, Government do not find justification to intervene in the matter. The order now there stated that the Government has arrived at the conclusion that the enquiry conducted was a fair and proper one.
8. The learned Counsel for the respondent fairly concerned that the order of the Government is not happily worded. He, however, referred to the affidavit filed by the Under Secretary to the Government of India ; matters raised by the petitioner in his petition were answered in detail,. So far as this matter is concerned, it was specifically mentioned in Para 22 as follows;
The answering respondent was, on a prima facie examination of the relevant record, satisfied that the enquiry made in to the charges levelled against the petitioner was proper; the findings of the enquiry officer were not perverse and that the petitioner had given all reasonable opportunities during the enquiry proceedings, and further the bank's action in dismissing him was not mala fide.
The learned Counsel for the respondent further urged that this part of the affidavit has not been challenged and to further support that this statement in the affidavit redected the real facts, he afford to place the entire record before the Court. H e contended that while dealing with this case, the matter had to be examined in the relevant Ministry at various levels and it was as a result of a thereough examination not only of the report of the conciliation officer, but also the report of the enquiry officer and all other relevant facts that the decision was taken by the Government. He placed a copy of the report of the enquiry officer, Sri M. N. Muttu; on the report at the instance of the Court and this is marked as Ex, C.I. This fully support the statement made on behalf of the respondent in the affidavit in Para 9, that the bank produced no oral evidence and reliance was placed only on documentary evidence and, therefore, there was no question of allowing any cross-examination of any of the witness produced by the bank. The main charge against the petitioner was that a cheque for Rs.142-80 for payment of the premium of a policy of his relation Kashmiri Lal Aggarwal was actually presented at the country on 4 December 1956, but the petitioner entered the same under a previous date, i.e.; 1 December 1956, whereas, in fact, his relation had died on 1 December 1956. The enquiry officer detailed the various entries in the books of the bank and the discripaneiss in the same which clearly established that the cheque was. Infact, presented not on 1 December but on 4 December1956. He also detailed the various circumstances and particularly the fact that it was not the duty of Jindal to make there entries and the person concerned, whose policy had already lapsed, was a relation of his from which he arrived at the conclusion that this entry was made on an earlier date in order to keep the policy alive. It is not necessary to go into the merits of the findings arrived at but the report was such on which the Government could have come to the conclusion that the enquiry was a fair and proper one that it was not expedient to refer the matter for adjudication. We are, therefore, convinced that although in order of the Government the word 'proper ' has not been used the quality the word 'enquiry ' there is no reason to doubt that was the tentative decision arrived at by the Government on prima facie examination of the material on the record.
9. For the reason given, we feel that there is no ground for interference with the order of the Government and consequently; this position is dismissed and the rule discharged: In the peculiar circumstances of the case; there will be no order as to costs.