G.C. Jain, J.
(1) By this petition, under article 226 of the Constitution of India, the petitioners, workmen of Messrs Wings Wear Corporation, through their 'General Mazdoor Union', assail the order of the Lt. Governor of the Union Territory of Delhi, respondent No. I, dated August 18, 1971, made under Section 12(5) of the Industrial Disputes Act, 1947 (for short 'the Act').
(2) Rattan Singh, an employee of Messrs Wings Wear Corporation, respondent No. 2, (for short 'the Management') was suspended on August 23, 1968 for some misconduct. The workmen of the Management, contending that it was a case of victimisation, demanded revocation of the suspension order. The demand, it appears, was not accepted and they adopted agitational means and went on strike with effect from August 27, 1968, which was called off on January 14, 1969.
(3) Several workmen were charge sheeted for misconduct. Domestic enquiry was held against them. The enquiry officer found that the charges had been substantiated. On consideration of the enquiry report, Mohan Singh, 0m Prakash, Mehar Chand, Sampuran Singh, Chauthi Ram and Lakhi Ram were dismissed from service.
(4) The workmen approached the conciliation officer, Karampura, New Delhi, and submitted two statements of claim, one in respect of Mohan Singh, 0m Prakash, Mehar Chand, Sampuran Singh and Chauthi Ram and the other in respect of Lakhi Ram (Annexures 'A' and 'B' to the petition). They challenged the validity of their dismissal on the ground that they had denied the charges still no opportunity was given to them to defend their cases and the enquiry was unfair. During strike period the Management, with the help of the police, implicated the workmen in many cases to victimise them. Their dismissal amounted to victimisation for taking part in the trade union activities.
(5) After considering the disputes the Lt. Governor refused to make the reference. The relevant part of the order (copy annexure 'C') reads as junder:
'ASrequired under Section 12(5) of the Industrial Disputes Act, 1947, I am directed to inform you that for the reasons detailed below, the Lt. Governor of the Union Territory of Delhi does not consider the above dispute, a fit one for reference to the Industrial Tribunal, Delhi, for adjudication : The dismissal of the following workmen, after holding domestic enquiry in which they fully participated and were found guilty of the charges leveled against them, appears to be in order: 1. Shri Lakhi Ram 2. Shri 0m Parkash 3. Shri Sampuran Singh 4. Shri Mohan Singh 5. Shri Mehar Chand 6. Shri Chauthi Ram.'
(6) In the writ petition it was averred that under the Act the appropriate Government was required to find out-(a) if any industrial dispute exists or is apprehended, (b) whether the persons raising the dispute were workmen, (c) whether the dispute was raised against any industry, and (d) whether there was any settlement existing at the time of commencement of the conciliation proceedings or at the time of reference. It had no power lo adjudicate on the merits of an industrial dispute which power vested only in a Labour Court or Tribunal or National Tribunal. The impugned order was bad in law.
(7) This petition was opposed. Shri J.K. Dhawan, Personnel Manager, filed a rejoinder affidavit on behalf of the Management. It was averred that Rattan Singh was suspended pending domestic enquiry on account of certain acts of grave misconduct. Thereafter some of the workmen started demonstration outside the factory gate raising abusive and derogatory slogans against the Management and its officers and prevented the workers from entering the factory. The management notified on the notice board that the action of the workmen amounted to illegal strike and was otherwise not just and legal particularly in view of the two disputes pending before the Additional Industrial Tribunal and the Industrial Tribunal, Delhi. On August 27, 1968 they blocked the factory gate and raised abusive and derogatory slogans and prevented the workers, officers ar.d factory vehicles from entering the factory premises. The management sought police intervention and obtained injunction from the competent court restraining the strikers and the union office bearers from 'demonstrating, raising slogans within 100 metres of the factory and the residences of the officers and the partners of the management, but, in spite of the injunction they continued those illegal activities. The Assistant Labour Commissioner intervened and advised the workers that the strike was illegal. The Labour Commissioner also made efforts for a settlement but failed to get the illegal strike called off. A complaint was thereafter filed by the Labour Commissioner in the Court of the Judicial Magistrate alleging that the workers had violated certain provisions of the Act in instigating and participating in the said illegal strike. About 23 workmen confessed their guilt and were fined RS. 1O.00 each. Ultimately the strike was unconditionally called off with effect from January 14, 1969. Eighty-six workmen, including the above- mentioned six workmen, were charge-sheeted separately for their acts of misconduct and a domestic enquiry was held by Shri A.N.Kaul, retired Industrial Tribunal Delhi. The workmen were given full opportunity to defend themselves. He found them guilty of various acts of misconduct. On consideration of the report they were dismissed from service. The approval of the action was obtained from the Court under Section 33(2)(b) of the Act. It was further averred that the appropriate Government had refused to make the reference after due consideration of the facts and circumstances before it and the order was perfectly valid, proper and in accordance with law. The orders sought to be challenged were not amenable to the jurisdiction of this Court and no writ of mandamus as prayed for in the petition could be issued.
(8) On behalf of respondent No. I, a rejoinder affidavit was filed by Shri S.S. Sanzagiri, Under Secretary (Labour), Delhi Administration. It was averred that the reasons for not making the reference of the dispute have been given in the impugned order. This Court was not competent to sit over the judgment of the Lt. Governor who alone had exclusive jurisdiction in the matter as held by the Supreme Court in Bombay Union of Journalists and others v. The State of Bombay and another : (1964)ILLJ351SC , and consequently, the. writ petition was not maintainable. It was further averred that respondent No. I had made no adjudication on the merits of the industrial disputes and had acted strictly in accordance with law.
(9) Under Section 10 of the Act where the appropriate Government is of opinion that an industrial dispute exists or is apprehended, it may at any time, by order in writing refer the dispute to a Board for promoting settlement thereof, or a Court for inquiry, or to a Labour Court or Tribunal or National Tribunal for adjudication. Under Sub-section (1) of Section 12 of the Act, the conciliation officer may hold conciliation proceedings where an industrial dispute exists or is apprehended. Under Sub-section (2) of the said section he is required to investigate the dispute expeditiously for the purpose of inducing the parties to reach at a fair and amicable settlement. If he succeeds and a settlement is arrived at the conciliation officer is required to send a report to the appropriate Government or the officer authorised in this behalf by the appropriate Government as provided under Sub-section (3). If no settlement is reached the conciliation officer ts required to submit a failure report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, etc. Sub-section (5) of Section 12 empowers the appropriate Government on consideration of such failure report to make a reference. In case it does not make a reference it is required to communicate the parties concerned its reasons thereforee.
(10) The order of the appropriate Government under Section 10(1) read with Section 12(5) of the Act, is an administrative order and not a judicial or quasi-judicial order. (See State of Bombay v. K.P. Krishnan and others : (1960)IILLJ592SC . It was, however, not disputed before me that such an order was subject to judicial review under article 226 of the Constitution of India. In any case, the law on this point is well settled.
(11) In State of Bombay v. K.P.Krishnan and others (supra) while examining this question it was observed at page 1230 :-
'THE order passed by the Government under Section 12(5) may be an administrative order and the reasons recorded by it may not be justiciable in the sense that their propriety, adequacy or satisfactory character may not be open to judicial scrutiny; in that sense it would be correct to say that the court hearing a petition for mandamus is not sitting in appeal over the decision of the Government; nevertheless if the court is satisfied that the reasons given by the Government for refusing to make a reference are extraneous and not germane then the Court can issue, and would be justified in issuing, a writ of mandamus even in respect of such an administrative order.'
(12) In M/s. Hochtief Gammon v. State of Orissa and others (1975 (2) L.L.J. 418), the Supreme Court laid down the law in these words:-
'THE Executive have to reach their decisions by taking into account relevant considerations. They should not refuse to consider relevant matter nor should take into account wholly irrelevant or extraneous consideration. They should not misdirect themselves on a point of law. Only such a decision will be lawful. The Courts have power to see that the Executive acts lawfully. It is no answer to the exercise of that power to say that the Executive acted bonafide nor that they have bestowed painstaking consideration. They cannot avoid scrutiny by Courts by failing to give reasons. If they give reasons and they are not good reasons, the Court can direct them to reconsider the matter in the light of relevant matters, though the propriety, adequacy or satisfactory character of these reasons may not be open to judicial scrutiny. Even if the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts.'
(13) The impugned order was assailed on the ground that the appropriate Government had decided the disputes on the merits which it had no power to do. This ground, however, was not seriously pressed by Mr. Ram Panjwani, learned counsel appearing for the workmen. The word used in the impugned order is 'appears'. It shows that the appropriate Government had only taken a prima facie view which it was competent to do, as held by the Supreme Court in Bombay Union of Journalists and others v. The State of Bombay and another : (1964)ILLJ351SC . The relevant observations at page 1621 read as under :-
'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, because that would normally lie within the jurisdiction of the Industrial Tribunal. Similarly, on disputed questions of fact, the appropriate Govern ment cannot purport to reach final conclusions, for that again would be the province of the Industrial Tribunal. But it would not be possible to acct the plea that the appropriate Government is preceded from considering even prima facie the merits of the dispute it when 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. If the claim made is patently frivolous, or is clearly belated, the appropriate Govt. may refuse to make a reference. Likewise, if the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse, the appropriate Government may take that into account in deciding whether a reference should be made or not. It must, thereforee, be held that 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), and so, the argument that the appropriate Government exceeded its jurisdiction in expressing its prima facie view on the nature of the termination of services of appellants 2 and 3, cannot be accepted.'
(14) Mr. Ram Panjwani, learned counsel for the workmen, however. strenuously contended that in their statements of claim (copies Annexures A and B) the workmen assailed their dismissal mainly on two grounds ; (1) the enquiry was unfair being vocative of principles of natural justice, and (ii) the act of the Management in dismissing the workmen was an act of victimisation on account of their trade union activities. The appropriate Government, however, considered only the first ground and did not consider the second ground, i.e. the question of victimisation. It also did not consider the question whether the punishment awarded was harsh and disproportionate to the alleged misconduct and, thereforee, the impugned order was liable to be set aside.
(15) An examination of the impugned order reveals that the appropriate Government formed an opinion that the dismissal of these workmen appeared to be in order. The reason given in support of this opinion is that the dismissal was after holding domestic enquiry in which the workmen fully participated and were found guilty of the charges leveled against them. In other words, the appropriate Government prima facie did not find any merit in the contention of the workmen that the enquiry was Unfair or that they had not been given reasonable opportunity to defend their case. However, there is no indication whatsoever in the impugned order that the question of victimisation was taken into consideration.
(16) 'VICTIM' according the Webster's Third New International Dictionary means, inter alia, 'a person subjected to oppression, deprivation, or suffering : someone tricked, duped, or subjected to hardship : someone badly used or taken advantage of'. 'Victimization' is the act or process of victimizing or the state of being victimized. If a workman is innocent but still is punished on a concocted charge because he has in some way or the other displeased his employer by becoming an active member of a trade union or otherwise the said act of the management would ordinarily amount to victimization.. It would also be victimization if an employee guilty of a misconduct is awarded punishment quite out of proportion to the gravity of the charge simply because he has displeased the employer for his union activities or for some other such reason. The dismissal can be set aside if it is found that it was by way of victimization in spite of the fact that a proper domestic enquiry had been held. The Supreme Court in Mis. Bharat Iron Works v.Bhagubhai Balubhai Patel and others : 2SCR280 observed:-
'SECONDLY,in the same case i.e. where there is no failure of the principles of natural justice in the course of domestic enquiry, if the Tribunal finds that dismissal of an employee is by way of victimisation or unfair labour practice, it will then have complete jurisdiction to interfere with the order of dismissal passed in the domestic enquiry. In that event the fact that there is no violation of the principles of natural justice in the course of the domestic enquiry will absolutely lose its importance of efficacy.'
(17) Thus I have no doubt that victimisation was an independent ground raised by the workmen in support of their plea that their dismissal was wrongful. This ground was equally important and relevant for the purposes of forming an opinion whether to refer the dispute or not. The appropriate Government omitted to consider this material ground. The impugned order for that reason could not be sustained.
(18) Learned counsel for the respondents contended that it was not obligatory on the appropriate Government to consider all the grounds. Reliance was pieced on the decision of the Supreme Court in the case of Bombay Union of Journalists and others (supra). It was a case of retrenchment of the employees. One of the grounds raised by the workmen was that the management had not complied with the requirements of Section 25F(c) of the Act. It was argued that the appropriate Government had not considered this ground and, thereforee, the order refusing to make a reference was illegal. The argument was turned down for the reason that the appropriate Government may have construed the provisions of Section 25F(c) as being directory and not a condition precedent because of the rules framed by it under the Act. In para 8 of the judgment it was observed that the argument that of the pleas raised by the appellants two have been considered and not the third would necessarily entitle the party to claim a writ under article 226.
(19) The above decision in my view does not help the respondents much. The word 'necessarily' used in the above observations suggests that non-consideration of a ground which is frivolous or has no substance on the face of it would not be fatal. However, if the ground which has not been considered is a vital ground and goes to the root of the case and it has not been considered then the order was liable to be quashed. In M/s. Hochtief Gammon (supra) it has been observed that there must be material to show that the appropriate Government has considered all the relevant facts. In the present case as observed above, the important ground on which the dismissal was assailed, namely, that it was an act of victimisation has not been considered and for that reason the impugned order was liable to be quashed.
(20) It was then contended that the appropriate Government prima facie came to the conclusion that the order of dismissal was proper which shows that all the grounds on which the dismissal had been assailed had been taken into consideration and, thereforee, it cannot be said that the ground of victimisation was not considered, and that there was a presumption of validity under Section 114 of the Evidence Act. I do not agree. The only reason given in support of the opinion that the dismissal appeared to be in order was that the workmen have been found guilty of the charges leveled against them in the domestic enquiry in which they had fully participated. The order says nothing about the ground of victimisation. In a way the impugned order does not disclose the reasons for not referring the dispute on the ground of victimisation which would amount to violation of the provisions contained in Sub-section (5) of Section 12 of the Act which imposes a duty on the appropriate Government to record and communicate to the parties concerned the reason for not making the reference. I am supported in this view by a Division Bench decision of the Orissa High Court in Ajit Kumar Roy v. State of Orissa and another : AIR1964Ori255 .
(21) In conclusion, I accept the petition, quash the impugned order (Annexure 'C'). Appropriate Government is directed to make an order under Section 10(1) read with Section 12(5) of the Act regarding the said dispute, within four months of this order, after considering the question of victimisation including the question of the severity of the punishment. In the peculiar circumstances of the case parties are left to bear their own costs.