D.K. Kapur, J.
1. This petition under Articles 226 and 227 of the Constitution has been moved by the canteen employees of the Central Ordnance Depot in Delhi Cantonment, which is a branch of the defense Installations Employees Association, through its general secretary. It is said that the defense Installations Canteen Employees Association is registered under the Indian Trade Unions Act According to the petition, there is a Central Ordnance Depot in Delhi Cantonment which is managed by the Ministry of defense at which 250 persons are employed. Under Section 46 of the Factories Act, 1948, every factory has to maintain a canteen. The petitioner appears to be an association of all the employees in this canteen.
2. It is claimed in the petition that the petitioners had moved Writ Petition No. 1224 of 1970, praying for a writ of mandamus against the Central Government for the purpose of obtaining a reference of an industrial dispute under Section 10(1) read with Section 12(5) of the Industrial Disputes Act, 1947. After the petition was moved, the Central Government passed two orders on 5th February, 1971 and 10th March. 1971, which led to the withdrawal of the aforementioned writ petition. It appears that there was also another petition, Writ Petition No. 1227 of 1970, which was also withdrawn with permission to file a fresh petition. The present petition is concerned with the orders dated 5th February, 1971 'Annexure 1' and 10th March, 1971 'Annexure 2'.
3. To understand the grievance of the petitioners, it is necessary to note that the workmen employed in the canteen wanted to get the same allowances and wages and privileges, etc, that the other personnel employed in the Central Ordnance Depot were enjoying. The position of the petitioners was that they were also employees of the Central Ordnance Depot. It is the case of the petitioners that the Central Government was not accepting the canteen employees as its own employees according to the order dated 5th February, 1971, but this point was not raised during conciliation proceedings. A number of letters and considerable correspondence has been annexed to this writ petition concerning the proceedings before the conciliation officer. It appears that in those proceedings, Lt. Col. Dalip Singh, Administrative Officer, appeared on behalf of the Commandant of the Ordnance Depot. No objection was taken that the canteen employees were not Government employees. For reasons that will become clear shortly, it is not desirable in these proceedings to refer at any length to the conciliation proceedings; nor is it desirable that any question of disputed fact should be gone into at this stage of the proceedings. The present writ petition has to be confined to a simple basis question. A dispute has arisen between the employees working in the canteen attached to the Central Ordnance Depot and the management of that depot. The conciliation officer dealt with this question and thereupon made a report to the Central Government. We are not concerned with the contents of that report. The question to be considered is whether the appropriate Government has rightly refused to make a reference. Under Section 12(5) of the Industrial Disputes Act, 1947, the appropriate Government is required to record its reasons why it has not made a reference and communicate the same to the parties concerned. The present writ petition is concerned only with the reasons actually recorded by the Central Government and also, the question whether this Court has any power of judicial review in connection with that order. This type of question has been the subject-matter of several reported decisions and it is a simple question of applying those decisions to the order passed by the Central Government refusing to make a reference.
4. For the reasons just stated, I am also refraining from referring to the return filed to this writ petition which is by way of affidavit, the affidavit being of Shri S.S. Sahasranaman, Under Secretary to the Government of India in the Ministry of Labour and Rehabilitation.
5. I, thereforee, deal directly with the contents of the two letters dated 5th February, 1971 and 10th March, 1971, which together constitute the refusal of the Central Government to refer the matter to an Industrial Tribunal, and also, set out the reasons for the same. The first of these letters was addressed by the Under Secretary, Shri S.S. Sahasranaman to the Commandant of the Ordnance Depot and the General Secretary of the Association. The operative part reads:
In continuation of this Ministry's office letter, of even number dated the 24th April, 1967, on the subject noted above, I am directed to say that the Government of India have not accepted the Canteen Committee's employees as their own in similar cases and they do not find adequate justification in the present case to make any departure from the accepted policy. They do not, thereforee, consider the above dispute prima facie fit for reference to an Industrial Tribunal for adjudication.
Sd/- (S.S. Sahasranaman)
This letter merely states that the Government of India have not accepted the Canteen Committee employees as their own and they cannot depart from the accepted policy. It does not give any reasons why the dispute should not be referred.
6. The second letter is a clarification of the previous letter and sets out the reasons. It is sufficient to set out only the reasons given in this letter because it is these reasons which have to be examined to see whether they fall within the scope of this Court's jurisdiction under Article 226 of the Constitution. The reasons are:
(1) the canteen is not run department tally by the Government;
(2) the canteen is run by a committee of the employees of the Ordnance Factory;
(3) the workmen of the canteen are the employees of the Canteen Committee; and
(4) the expenditure for running the canteen including the wages to the workmen of the canteen are to be paid from the sale proceeds of the canteen and also a subsidy to Canteen Committee by the Government.
The reasons would show that the Central Government refused to refer the matter because the canteen was not run depart-mentally by the Government and was run by a committee of the employees in the Ordnance Factory. Furthermore, the workmen of the canteen are claimed to be the employees of that Committee aid the expenditure was met from the sale proceeds of the canteen plus subsidy obtained by the Committee from the Government These are the only reasons and the question which has to be posed is whether this is a ground on which the Government could legitimately refuse to refer the matter under the Industrial Disputes Act, 1947.
7. Some case law relating to this subject has now to be referred to. In State of Bombay v. K.P. Krishna : (1960)IILLJ592SC the Supreme Court construed the provisions of Section 12(5) of the Industrial Disputes Act, 1947, and said that if the reason for refusing to make a reference was extraneous then the Government could be compelled to make a reference It is noticeable that the proceedings arose by way of a writ petition in the Bombay High Court under Article 226 of the Constitution A mandamus ordered by a single Judge which was affirmed by the Division Bench and finally confirmed by the Constitution Bench of the Supreme Court. The reference in question was regarding an industrial dispute between the Firestone Tyre and Rubber Company of India Ltd. and its workmen. As this case has considerable bearing on the present case, it is necessary to refer to the dispute which was sought to be referred and the reasons which were given by the Government for refusing to refer the matter. The company had declared a bonus equal to 1/4 of the basic earning for the year 1952-53. The workmen claimed a much higher bonus in view of the profits made by the company during the relevant year. The conciliation officer found that two of the demands should be conciliated upon. On failure of the conciliation, a report was made under Section 12 (4 of the Act. The judgment shows that the conciliation report was partly favorable to the workmen. (1 may mention that there were some other disputes also in addition to bonus, but it is not necessary to set out the same in this judgment). The reasons given by the Government for refusing to make the reference was that it refused to refer the matter, because the workmen had resorted to 'go-slow' during the period 1952-53. The order was sought to be sustained before the Supreme Court on the ground that the Government had to consider whether it was expedient to make the reference. The relevant part of the Supreme Court's judgment (Gajendragadkar, J.) was:
Though considerations of expediency cannot be excluded when Government considers whether or not it should exercise its power to make a reference it would not be open to the Government to introduce and rely upon wholly irrelevant or extraneous considerations under the guise of expediency. It may for instance be open to the Government in considering the question of expediency to enquire whether the dispute raises a claim which is very stale, or which is opposed to the provisions of the Act, or is inconsistent with any agreement between the parties, and if the Government comes to the conclusion that the dispute suffers from infirmities of this character, it may refuse to make the reference. But even in dealing with the question as to whether it would be expedient or not to make the reference Government must not act in a punitive spirit but must consider the question fairly and reasonably and take into account only relevant facts and circumstances. In exercise. sing its power under Section 10(1) it would not be legitimate for the Government for instance to say that it does not like the appearance, behavior or manner of the secretary of the union, or even that it disapproves of the political affiliation of the union, which has sponsored the dispute. Such considerations would be wholly extraneous and must be carefully excluded in exercising the wide discretion vested in the Government
Later on in the judgment it is stated:
It is further difficult to appreciate how the misconduct of the respondents on which the decision of the Government is based can have any relevance at all in the claim for the classification of the specified employees which was one of the items in dispute..
Still later, in the judgment, it is said:
Similarly, even in regard to the claim for bonus, if the respondents are able to show that the profits earned by the company during the relevant year compared to the profits earned during the preceding years justified their demand for additional bonus it would plainly be a punitive action to refuse to refer such a dispute solely on the ground of their misconduct.
Hence, in view of the facts and circum. stances of the case, the Supreme Court came to the conclusion that the reasons were extraneous and a mandamus could issue. In Bombay Union of Journalists v. State of Bombay : (1964)ILLJ351SC , the Supreme Court again considered the same question. In this case, the dispute related to the termination of services of two persons employed by the Free Press Journal. On failure of conciliation proceedings, a report was made under Section 12(4) of the Act The Government refused to make the reference to the Industrial Tribunal on the ground that the termination of services appeared to be an act of retrenchment for which the management was willing to pay dues and that the termination was not mala fide or vindictive or victimisation for trade union activities. The Bombay Union of Journalists moved the Bombay High Court under Article 22a of the Constitution and failed to get a mandamus from that Court. In appeal before the Supreme Court, it was urged that the reasons given by the Government were extraneous to the questions required to be considered under Section 12(5) of the Act. The Court dismissed the appeal holding that if the Government had stated reasons for refusing to make a reference and those reasons could stand public scrutiny, then it was not necessary to analyze the matter any further. It was observed (at p. 1622 of A.I.R.):
If it appears that the reasons given show that the appropriate Government took into account a consideration which was irrelevant or foreign that no doubt may justify the claim for a writ of mandamus.
This judgment was also delivered by Gajendragadkar, J. Clearly, the two judgments show the kind of permissible interference that is open under Article 226 of the Constitution. If the reasons appear to be sound reasons, the Court can do nothing in the matter. If some irrelevant facts have been considered, then the Court can issue a mandamus.
8. In a comparatively recent decision in Prem Kakar v. State of Haryan : 3SCR1010 , a similar mandamus was refused by the Supreme Court. In this case, an employee of Hindustan Dowidat Tools Ltd., had demanded reinstatement after his service was terminated The conciliation officer made a report, but the Government refused to make a reference. The reasons given by the Government were that the employee in question was working as Electrical Foreman which was a supervisory job with remuneration more than Rs. 500 per month. It was stated that the employee was not covered by the definition of 'workman'. After failing to get a reference, the workman moved the High Court for a writ under Article 226 of the Constitution which he failed to get On appeal, the Supreme Court held that as the Government had held that the appellant was not workman, the reference had rightly not been made.
9. It cannot be denied that the question whether a person is a workman or not is a relevant consideration for the purpose of making a reference. Thus, all the three Supreme Court judgments proceed on the basis, i.e., whether the reasons given for refusing to make the reference are relevant or not. In a Division Bench judgment of the Orissa High Court, Ajit Kumar v. State of Orissa : AIR1964Ori255 , a writ petition was moved by a workman of the Hindustan Steel Limited, Rourkela Steel Project, to challenge an order passed by the labour Department of the Government of Orissa declining to make the reference of an industrial dispute concerning the petitioner's termination of service. The Court held that the reasons given by the Government could be examined, and also, held that the reasons were silent in some respect. The exact wording used in respect of the reference is not reproduced in the judgment which merely states that it was not a fit case to refer to the Labour Court, because the procedure followed by the management does not appear to be illegal. One of the reasons given in the judgment to direct a mandamus was that the Government had taken one year and seven months to decide whether a reference should be made or not. In the present case, there is a much greater delay, because the conciliation officer passed his order in April, 1967, and the Central Government passed its order almost four years later. The conciliation officer's report in 'Annexure 7' to the writ petition, and merely says that the conciliation proceedings were held after notice had been issued to the union and the Commandant, Central Ordnance Depot, but no amicable solution could be found. The minutes of the conciliation proceedings held on 3rd April, 1967, were alto sent.
10. This brings me to consider the present case in the light of these judgments. The position appears to be that the reference has been refused only 011 the ground that the canteen workmen are not employees of the Central Government. Ordinarily, this would not at all be a relevant circumstance for refusing a reference. Even if the Canteen Committee runs the canteen and the workmen are not employees of the Government, there can be an industrial dispute. An industrial dispute requires a dispute amongst workmen and workmen or employee or employees or employees and employers concerning the conditions of work or conditions of employment, etc., of any employee. The petitioners arc employed in a canteen. They have raised a dispute regarding the terms of their employment with the management of the canteen. Whether the canteen belongs to the Government or belongs to the Canteen Committee, does not have any relevance to the existence of the dispute or to its decision. The dispute is between the canteen workers and their employers whoever they may be. thereforee, prima facie the reasons given do not have any bearing on the question whether there should be a reference or not.
11. I may mention that the nature of the dispute in this case is a peculiar one. The claim of the canteen workers is set out in 'Annexure V' and proceeds on the basis that the canteen workers have been working for the last 15 or 20 years on a fixed salary without any dearness allowance or house-rent. They are temporary workmen in spite of all this period and no rules have been framed. Although, the rates of pay of Central Government employees have been revised, there has been no corresponding increase to canteen workers who are living on starvation level. It is said that even sweepers, labourers, messengers get a higher salary. Claim is made that the employees should get compensation for the rise in the cost of living 'like other Government servants'. It is claimed that there is discrimination between two sets of employees in the same management. A reference has been made to the Supreme Court's judgment in Management of the D.C.M. Chemical Works v. Their Workmen (1962) Supp. 3 S.C.R. 516, in which it was observed that workmen employed in the canteen should be given the same conditions of service, etc., as other workers. The claim no doubt proceeds on the basis that the canteen workers were employed by the Government and possibly, the Government thought that as this claim was not being conceded by the Government, no reference may be made. However, even if workers are employed by any one else, it shall remain a dispute between the canteen workers and their employer which may be a Canteen Committee Even if this claim was not raised in conciliation proceedings, I do not see why a dispute between the canteen employees (sic) industrial dispute It may be that 'canteen' did not fall within the definition of 'industry' or there are some other reasons for not referring the disputes which have not been mentioned in the Government's letter. In my view, the reasons given are irrelevant and normally, I would have no hesitation in issuing a mandamus. But there are some other circumstances in this case which have to be taken note of before a mandamus can actually issue referring the matter to an Industrial Tribunal or Labour Court. I now proceed to deal with these other questions which have some bearing on the type of order which has to be passed in this case.
12. The first reason that has a bearing on the question whether a mandamus should issue or not is the fact that the Government is empowered to take into consideration the question of expediency and other similar questions when refusing to make a reference. It cannot be doubted that the dispute in this case arises in respect of an Ordnance Factory. It may be that the Government may find that the making of a reference in a dispute like the present affects some other vital question relating to defense or relating to the running of the Ordnance Factory which should not be referred to an Industrial Tribunal. The judgment of the Supreme Court in the State of Bombay's case : (1960)IILLJ592SC , referred to earlier, makes a pointed reference to the fact that the Government can consider the question of expediency. The second point that I have to take into consideration is the fact that the refusal of the Central Government to make a reference proceeds on the basis that the dispute is not one between the Central Government and the canteen employees. It has not been taken into consideration that a dispute can also arise sic canteen. For instance, the dispute in the present case may be considered purely as a dispute between the management of the canteen and the canteen workmen. It is quite irrelevant as to whether the canteen is run by the Government or by a set of employees of the Government. The Government may take this question into consideration while deciding the nature of the dispute which should be referred. As it clearly appears from the letters that this aspect of the matter has not been taken into consideration, I feel that the Government may itself make a reference when the aspect of the dispute is pointed out. Thirdly, the dispute is now a very old one, because even the date of refusal is in 1971. It appears that the dispute arose in 1967 and was refused in 1971, and unfortunately, I am dealing with this petition in 1977. Hence, it is possible that the dispute has become stale or at least has by now taken a different turn. Taking all these reasons into consideration, I think, I should not issue an outright mandamus to the Government to refer the dispute to the Industrial Tribunal. Instead, I propose to issue a different type of mandamus. I would, thereforee, direct the Government to take into consideration the facts and circumstances of this case and assume that the dispute is one between the canteen employees of the Central Ordnance Depot, Delhi Cantonment and the management of that canteen. It should also take into consideration whether the dispute should not be referred either on grounds of expediency or other grounds which I cannot think of and then decide whether there are reasons for refusing to make a reference.
13. I, thereforee, issue a mandamus directing the Government to either refer the industrial dispute in the form stated above under Section 10 or to give fresh reasons under Section 12(5) of the Industrial Disputes Act, 1947, why the reference should not be made. As the matter is very old indeed I direct the reasons to be given within six months. If no reasons can be given within six months for refusing the reference, I direct that the reference should be made in the manner set out above. The petitioners will get costs.