(1) This writ petition under Article 226 of the Constitution of India seeks a Writ of mandamus to be issued by directing the appropriate Government to re-consider its decision in the light of provisions of Section 11A of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') and to make a reference of the dispute to the Labour Court. This relief is sought after quashing the order of the Secretary (Labour) Delhi Administration, Delhi, dated 20th February, 1981, whereby the Delhi Administration did consider the disputes between Shri Ram Kishan (petitioner herein) and the Management of the Delhi Transport Corporation (respondent No. 2) as not fit one for reference to the Industrial Tribunal/ Labour Court for adjudication and a subsequent order dated 20th September, 1983 staling that the Government 'found no ground which may warrant review of its earlier for decision dated 20th September, 1983 stating that the Government found no the reason given for not considering the disputes fit one for reference for adjudication was. 'That the punishment awarded by the management for the misconduct duly proved through an enquiry appears to be justified'.
(2) The petitioner, Ram Kishan was served with a charge sheet dated 31st March, 1975 on the basis of checking report No. 7308 dated 23rd February, 1975 in relation to Bus No. 1737, route No. 47 of two A.T.Is., Shri Ram Parkash and Sh. B. N. Bhalla, which read as under :
'(1)Non issue of ticket to a lady passenger after collect- ing due fare. (2) Cash found O.K. after collecting unpunched ticket. Detected one illeterate lady passenger alighted without ticket at Tilak Nagar. On enquiry the ticket less lady passenger stated that she boarded this bus from Moti Nagar for Tilak Nagar and had paid 20 paise to the conductor for the ticket before, alighting the bus Conductor return 5 paise as balance but did not issue any ticket to her even demanded. Transaction was seen by us between Conductor & lady passenger. Conductor was got confronted with the T/less lady passenger at the spot who admitted the facts. Surrender one unpunched ticket of 15 paise No. 630-09550 on demand. Because lady passenger was illiterate so the written statement of the lady passenger was recorded by B. N. Bhalla, Ati in the presence of the conductor on the back of challan as per dictated by the lady passanger Lady passenger could sign only. Cond. also sign on the same. The cash & body of the cond. was checked in empty bus & found O.K. after collected the legal fare of 15 paise. Cond. was challan vide challan No. 1293
(3) The charge-sheet required the petitioner. Ram Kishan to explain why the disciplinary action under Clause 15(2) of the D.R.T.A. (Conditions of Appointment & Service) Regulations, 1952, read with Delhi Road Transport Laws (Amendment) Act, 1971 should not be taken against him for the following irregularities:
'1.That on 23-2-75 you were conducting Bus No. 1737 of route No. 47 when the alighting passengers of your bus were checked at Pilak Nagar at about 1830 hrs., you collected 15 paise from a lady passenger named Mrs. Muni who had boarded your bus from Moti Nagar for Tilak Nagar and mis- appropriated the amount by not issuing her any ticket. This act of yours tent amounts to misconduct within the provisions of paras 6 & 7 of the Executive Instructions Duties of Conductor read with para 19(b&m;) of the standing orders governing the conduct of Dtc employees.
2.That you allowed the said lady passenger to get down from the bus without having issued any ticket to her and thus violated para 2(1) of the standing orders cited above. A copy of the checking report No. 7308 on which the charge-sheet is based is enclosed. Your past record will be taken into consideration at the time of passing the final orders or giving recommendations in his case.............'
(4) On the basis of this charge-sheet, the petitioner filed reply and the Enquiry started on 6th March, 1978 and the Enquiry Officer recorded the statements of B. N. Bhalla, Ati and Ram Parkash, ATI. The Enquiry Officer also wanted to examine the ticket less lady passenger Mrs. Muni but various letters sent to her came back undelivered and the petitioner-conductor was asked in case he was interested to bring ticket less lady passenger, he may bring her, but the petitioner did not want to produce her either. After considering the entire evidence, the Enquiry Officer found that the lady passenger was not issued any ticket after receipt of fare by the petitioner at the time of alighting the bus and the ticket less lady passenger was allowed to get down the bus without having issued the ticket. The Enquiry Officer also found that from the perusal of the past record of the petitioner that there were already five irregularities of the same nature against the petitioner, which show that he is habitual offender of the offence of mis-appropriation of fare and also opined that the retention of such ah employee in service is not in the interest of the Corporation. He recommended that the petitioner should be removed from the service.
(5) On receipt of the Enquiry report, the petitioner was given another memorandum dated 26th April, 1978 bringing to his notice the report of the Enquiry Officer proposing the punishment of removal from the sender and calling upon him to show cause against the said proposed punishment. The petitioner availed of this opportunity but the Depot Manager of the Delhi Transport Corporation vide order dated 29th May, 1978 did not consider the reply to the show cause notice satisfactory and agreed with the endings of the Enquiry Officer and held that the charge stands proved and ordered the, removal of the petitioner from the service of the Corpoiation.
(6) The petitioner then sought to raise industrial dispute in relation to his termination of service. Conciliation proceedings were held but the Conciliation Officer after going through the entire enquiry proceedings and the past conduct of the petitioner opined that the punishment awarded by the Management for the misconduct through enquiry appears to be justified.
(7) The appropriate Government then considered the report of the Conciliation Officer and the entire record of the disciplinary enquiry and passed the aforesaid older dated 20th February, 1981 declining the reference of the dispute to the Industrial Tribunal/Labour Court for the reasons mentioned earlier.
(8) Mr. D. N. Vohra submitted that the reasons given for E refusing to refer the dispute for Industrial adjudication is vitiated inasmuch as the appropriate Governn.ent could not go into the decision or otherwise of the punishment awarded and thereby the appropriate Government usurped the power of the Tribunal and this function could only bs exercised by the appropriate Tribunal Labour Court to which the dispute would have been referred to and, thus, the decision not to refer the dispute for industrial adjudication is vitiated. In this connection, learned counsel drew our attention to the provision of section 11A of the Act which gives power to the Labour Court/Tribunal to give appropriate relief in relation to punishment as the circumstances of the case require and, thereforee, the appropriate Government's decision that the dispute could not be referred as the punishment awarded was justified was a matter on which the appropriate Government could not have made any comments thereforee, the order refusing to refer the dispute is vitiated and a mandamus be issued directing the appropriate Government to refer the dispute to an appropriate Tribunal. To appreciate this submits
'11A. Where an industrial dispute relating to the dies charge or dismissal or a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it-thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require : Provided that in say proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.'
(9) This section came up for consideration before the Supreme Court in the case of The Workmen of M/s. Firestone Type & Rubber Co. of India (Pvt.) Ltd. and the Management and others 1973 1 Llj 278(1). In para 29 of the aforesaid decision, Vaidialingam, J. speaking for the Supreme Court, pointed out for the jurisdiction of the Labour Court/ Tribunal before Section 11A was introduced and what change came about after its introduction in! paras 30 and 31. The question whether Section 11A made any change and if so, to what extent thus came up for consideration. While analysing Station 11A. In paras 31 and 33 of the judgment, the learned Judge observed :
'THIS will be a convenient stage to consider the contents of S. 11A. To invoke S. 11A, it is necessary that an industrial dispute of the type mentioned therein should have been referred to an Industrial Tribunal for adjudication. la the course of such adjudication, the Tribunal has to 'be satisfied that the order of discharge or dismissal was not justified, if it comes to such a conclusion, the Tribunal has to set aside the order and direct reinstatement of the workman on such terms as it thinks fit. The Tribunal has also power to give any other relief to the workman including the imposing of a lesser punishment having due regard to the circumstances. The proviso casts a duty on the Tribunal to rely only on the materials on record and prohibits it from taking any fresh evidence. Even a mere reading of the section, in our opinion, does indicate that a change in the law, as laid down by this Court, has been effected............................... ................... . ............This position, in our view, has now been changed by S. 11A. The words 'in the course of the adjudication proceeding, the Tribunal is satisfied that the order of discharge or dismissal was not justified clearly indicate that the Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer established the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by the Tribunal that the finding of misconduct is correct. The limitations imposed on the powers of the Tribunal by the decision in Indian. Iron & Steel Co., Ltd. case (supra), can no longer be invoked by an employer; The Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct, but also to differ from the said finding if a proper case is made out. What was once largely in the realm of the satisfaction of the employer, has ceased to be so, and now it is the satisfaction of the Tribunal that finally decides the matter.'
(10) It will, thus, be seen from the aforesaid observations of Vaidialingam, J. that it analysed the Section 11A and pointed out when the section can be resorted to by the Tribunal and pointed out, 'What was once largely in the realm of the satisfaction of the employer, has ceased to be so, and now it is the satisfaction of the Tribunal that finally decides the matter'.
(11) The question of the power of the appropriate Government to make a reference as contained in Section 10(1), read with Section 12(5) of the Act came up for consideration before the Supreme Court in the case of State of Bombay v. K. P. Krishnan and others, : (1960)IILLJ592SC and Gaiendragadkar, J. speaking for the Supreme Court observed that while deciding whether the appropriate Government should or should not make a reference under Section 12(5) of the Act, the appropriate Government need not bass its decision solely on the report of the conciliation officer, but is free to take into consideration all other relevant facts and circumstances under Section 10(1), and where it refused to make a reference it must record and communicate its reasons thereof to the parties concerned. Such reasons, however, must be germane, aril not extraneous or irrelevant, to the dispute. But while exercising such wide powers as conferred by Section 10(1), the appropriate Government must act fairly and reasonably and not in a punitive spirit, and although considerations of expediency may not be wholly excluded, it must not be swayed by anv extraneous considerations.
(12) Though the question involved in the case of K. P. Krishnan (supra) relating to refusal of the appropriate Government for making a reference in relation to claim for bonus, but the aforesaid principles laid down by the Supreme Court have A since guided the appropriate Government and the Court in dealing with such matters.
(13) A similar question came up before the Supreme Court again in the case of Prem Kakar and State of Haryana and another 1976 (32) F.L.R. 343(3), where Chief Justice Ray noticed that the order of the Government under Section 10(1), read with Section 12(5) of the Act, is an administrative order and not a judicial or a quasi-judicial one. He also observed that, 'entertaining an application for a writ of mandamus against an order made by the appropriate Government under Section 10(1), read with Section 12(5) of the Act, the Court does not sit in appeal over the order and is not entitled to consider the propriety or the satisfactory character of the reasons given by the Government. it appears that the reasons given show that the appropriate Government took into account any consideration irrelevant or foreign, then the Court may in a given case consider the case on a writ of mandamus''.
(14) It will be pertinent to notice that in this case the appropriate Government declined to refer the dispute to Industrial adjudication on the ground that the Government found that the appellant was not a workman within the definition of the 'workman' in the Act and, thereforee, it was not a fit case for reference for adjudication. The Supreme Court held that the High Court had rightly rejected the application for mandamus and did not find that the order of the appropriate Government was in any way based on a reason which may not be relevant or foreign to the Act.
(15) The question similar to the one as before us also came up for consideration before the Madras High Court in the case of K. Ramaswamy v. The Government of Tamil Nadu 1979 Ii M. L. J. 380(4) and that was, in our view a converse case. There the petitioner was dismissed from service after domestic enquiry The petitioner then approached the State Government to raise an industrial dispute regarding his non-employment. The State Government passed an order staling that the charges against the workman had been proved in a properly conducted enquiry and that the Government did not consider it necessary to refer the issue in dispute for adjudication. The petitioner filed a writ petition challenging the Government order as not in accordance with Section 12(5) and 11-A of the Act Padmanabhan, J. took the view that, 'A perusal of Section 11A made it clear that the Labour Court could even hold that the proved misconduct did not merit punishment by way of discharge or dismissal, and, thereforee, could award to the workman any lesser punishment. The section conferred power on the Tribunal to interfere with the punishment imposed in the domestic enquiry and alter the same. Such being the legal position one of the relevant factors which the Government should have borne in mind before refusing to refer the dispute for adjudication was the question whether the proved misconduct did merit the punishment of discharge or dismissal'. Since the impugned order in that case did not show that this fact was taken into consideration before it was passed, the High Court quashed the order of the Slate Government.
(16) In the present case, the appropriate Government has stated in its reasons specifically that not only the misconduct was proved in proper enquiry but even the punishment is justified. This reason the appropriate Government gave because under Section 11-A of the Act, the quantum of punishment has also become relevant and it is no longer in the domain of the discretion of the employer alone.
(17) Mr. Vohra, on behalf of the workman referred us to the decision of the Kerala High Court in the case of Kunjuraman Nair and Secretary to Labour Department Kerala and others : (1978)IILLJ274Ker (5). In this case also Chandrasekhara Menon, J. had to consider a similar order as was considered by Padmanabhan, J. in the aforesaid case of K. Ramasamy (supra) and the learned Judge observed that, the question for Government's consideration was not only the question whether the enquiry was proper, in conformity with the principles of natural justice but also whether the Tribunal could have come to the conclusion on the evidence before it that the worker is guilty of misconduct or whether there has been unfair labour practice or victimization is the order of dismissal and whether the punishment imposed could be imposed on the facts disclosed by the evidence'. Learned Judge observed.
'THESE are certainly relevant factors for the consideration of the Government and since these relevant factors are not considered, the order is open to objection'.
(18) As we have stated, this again is a converse case and in the present case not only the Government considered whether the domestic enquiry was in conformity with the principles of natural justice but also considered the question of proprietary of the punishment. In our view, this decision of the Kerala High Court does not assist the learned counsel for the workman.
(19) A decision of Balakrishna Eradi & Narendran JJ., in the case of workmen of J & P. Coats (India) v. State of Kerala & others, (2) 1977 K.L.T. 546(6) was also brought to our notice. In. that case the appropriate Government refused to make a reference of the dispute on the sole ground that action of the Management is prima fade not mala fide. Eradi, J. (as His Lordship then was) while speaking for the Division Bench observed,
'under. 12(5) of the Act, whenever the appropriate Government takes a decision not to refer a dispute for adjudication there is a mandatory duty cast on it to record its reasons in support of the said conclusion and to communicate such reasons to the parties concerned. It is, thereforee, obligatory on the part of the Government to set out in the communication issued to the parties, clearly and precisely, the grounds on which the request for reference was being declined. The Government cannot thereforee be heard to say that in addition to the reasons mentioned by them in the order, certain other relevant facts or grounds not disclosed in the order had also weighed with them in reaching the conclusion that no reference need be made. The State Government acted illegally in refusing to make a reference of the dispute on the sole ground mentioned in Ext. P.1, namely that the Government did not find anything prima facie mala fide on the part of the management in having dismissed the two workmen. It is incumbent on the Government to pass a speaking order communicating to the concerned parties the reasons that weighed with the Government in arriving at the decision not to refer the case.'
In fact, in para 4, thereof Eradi, J. observed,
'ITwill be wholly wrong on the part of the Government to confine the scope of its examination of the matter only to the question whether or not the action taken by the management was mala fide and to shut out from consideration all other relevant aspects. Such a disposal of the matter will not be a proper exercise of the function vested in the Government under Section 12(5) of the Act'.
(20) In view of the aforesaid observations, it appears to us that this decision rather than helping the petitioner goes against his submission.
(21) Bombay High Court in the case of K. P. Kshatriya and Khandelwal Udyog Limited and others : (1980)IILLJ261Bom (7) also had an occasion to consider the Government's power to make or refuse to make a reference under Section 10 after introduction of Section 11A of the Act. The Bombay High Court held :
'IN the altered legal situation, the Government has to consider prima fade whether there is anything in the evidence which may goad or persuade the labour Court or the Industrial Tribunal to change its opinion as to the conclusion of misconduct or the quantom of punishment thereforee. The Government may refuse to make a reference if in their prima facie opinion the right of getting evidence reviewed already recorded and the right of getting reviewed the quantum of punishment awarded, is bound to be of no practical use in a particular case'.
(22) Since in the aforesaid case before the Bombay High Court, the question of quantum of punishment was not taken into account, by the Deputy Commissioner (Labour), the order of the Government refusing to refer the dispute was quashed and the Government was directed to re-consider the matter in the light of the observations made in the judgment.
(23) Same view was expressed by the Gujarat High Court in the ease of Woollen MilI Kamdar Sangh, Jamnagar and State of Gujarat and another : (1977)IILLJ353Guj (8). Here the Gujarat High Court speaking through. Mehta, Acting Chief Justice held as under :
'THE State Government has passed its order under a complete misconception of its jurisdiction in labour matters and has not borne in mind the most relevant factors in this case, especially of the statutory change in law which had been made after the enactment of S. 11A, because in case of such industrial dispute relating to discharge or dismissal of a single workman even if the reference was made and the Tribunal was satisfied that the order of discharge or dismissal was not justified, it can set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any as it thought fit or give such relief to the workman including the lesser punishment instead of discharge or dismissal as the circumstances of the case might require. If the State Government seeks to exercise its power in a cavalier manner without applying its mind to the relevant aspects and the relevant statutory guidelines which are evolved for exercising this discretion, the High Court can surely review the discretion in such cases as it is in complete contravention of the statute.'
(24) In this case it is noticed by Mehta, acting C.J., that in the order of the appropriate Government declining to make reference it is merely staled, 'that the conciliator's report had been taken into consideration and the Government was satisfied that in this case about reinstatement of the concerned worker Dharamendra Singh, there was nothing which was required to be put for adjudication of the Industrial Tribunal because the union had not given proper reasons in support of its demand'.
(25) Since the appropriate Government had not considered whether the domestic enquiry was proper or whether the punishment awarded was justified or not, the Gujarat High Court was pleased to quash the order of the appropriate Government and directed the State Government to re-consider in the light of the observations made therein.
(26) It will, thus, be noticed that in the present case the appropriate Government went into the question of proprietory of the domestic enquiry as well as into the question of justification and extent of punishment. The appropriate Government dealt with the germane and relevant consideration and in accordance with the newly introduced provision of section 11A of the Act. As observed by the Chief Justice Ray in the case of Prem Kakar (supra) while dealing with the mandamus application against refusal of the appropriate Government to refer the dispute for industrial adjudication, this Court does not sit as a Court of Appeal but only consider whether the rea.sons given by the appropriate Government for refusing to make reference are relevant or germane or not.
(27) In our view since Section 11A of the Act brought about a change, it was fit and proper for the appropriate Government to consider the question of extent of punishment while deciding the application under Section 10(1). read with Section 12(5) of the Act. There is, thus, no merit in the submission on behalf of the workman that the appropriate Government while giving reasons for declining to make the reference has usurped the power of the Labour Court /Tribunal. Petition, thus, fails and is dismissed. There will be, however, no orders as to costs of the present proceeding.