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Kottayam Plywood Workers Union, Kottayam, Represented by V.R. Kumaran Vs. Government of Kerala and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Case NumberO.P. No. 712 of 1961
Judge
Reported inAIR1962Ker292; [1962(4)FLR531]; (1962)ILLJ344Ker
ActsIndustrial Disputes Act, 1947 - Sections 10(1), 12(4) and 12(5); Constitution of India - Article 226
AppellantKottayam Plywood Workers Union, Kottayam, Represented by V.R. Kumaran
RespondentGovernment of Kerala and anr.
Appellant Advocate M.M. Cherian, Adv.
Respondent AdvocateGovernment Pleader
DispositionPetition allowed
Cases ReferredState of Bombay v. K. P. Krishnan
Excerpt:
labour and industrial - retrenchment - sections 10 (1), 12 (4), 12 (5), 25-f and 25-g of industrial disputes act, 1947 and article 226 of constitution of india - petitioners claimed before state government that retrenchment was not necessary and management acted in contrary to provisions of sections 25-f and 25-g - state government found that retrenchment was for bona fide purposes and rejected petitioner's claim - whether petitioner entitled to writ directing state government to refer dispute between petitioner and management for adjudication under act of 1947 - no grievance made by petitioner that action by way of retrenchment not justified - petitioner made grievance that there was no necessity for retrenchment - matter remanded back to state government to reconsider of.....orderc.a. vaidialingam, j.1. in this original petition, mr. m. m. cherian, learned counsel for the petitioner union, seeks the issue of a writ of mandamus directing the state government, to refer the dispute between the petitioner and the management for adjudication, under the industrial disputes act, 1947. the learned counsel also seeks to have an order, ext. p-3, issued by the state government on 20-3-1961, declining to make a reference for adjudication, quashed.2. during the course of the hearing i felt a doubt as to whether the management, who may also be stated to be interested in these proceedings, should not be brought on record, so that i may have the benefit of their view points also, before i take a decision one way or the other. but the learned government pleader, appearing for.....
Judgment:
ORDER

C.A. Vaidialingam, J.

1. In this Original Petition, Mr. M. M. Cherian, learned counsel for the petitioner Union, seeks the issue of a writ of mandamus directing the State Government, to refer the dispute between the petitioner and the management for adjudication, under the Industrial Disputes Act, 1947. The learned counsel also seeks to have an order, Ext. P-3, issued by the State Government on 20-3-1961, declining to make a reference for adjudication, quashed.

2. During the course of the hearing I felt a doubt as to whether the management, who may also be stated to be interested in these proceedings, should not be brought on record, so that I may have the benefit of their view points also, before I take a decision one way or the other. But the learned Government Pleader, appearing for the State has presented all the aspects that could be presented even by the management in such circumstances and therefore I did not think it necessary to issue separate notice to the management in these proceedings.

3. The circumstances under which this writ petition has been filed, and as could be gathered from the material averments in the affidavit filed on behalf of the petitioner-can be briefly stated. The management, Phoenix Plywood, is a company carrying on business of making plywood veneer and manufacturing plywood boxes etc. They are stated to he employing about 87 workers and according to the petitioner, the Proprietor gave a notice of retrenchment on 19-9-1960 to six workers, under which the management terminated their service as and from that date. A sample of the notice so issued to the individual workers is filed as Ext. P-1 in these proceedings. The petitioner further states that, according to the management they have switched on to have electric sawing machine and therefore these workers had to be retrenched and under the notice Ext. P-l the management offered only one month's wages but they had not really complied with the provisions of Section 25-F of the Industrial Disputes Act. It is also averred that compensation, on the basis of length of service, as mentioned in the said section, has not also been paid.

4. The workers took up the case with the management itself regarding their claim on the ground that retrenchment is not necessary, and that in any event, even if retrenchment is necessary, in the circumstances, the management have acted contrary to the provisions of section 25-F and Section 25-G of the Industrial Disputes Act.

5. The petitioner further states that the Union has never taken up a contention in the proceedings before the management, that the action of the management in effecting the retrenchment is due to lack of bona fides or that it has to be considered as an act of victimisation. In fact, the Union has filed a copy of the communication sent by them to the management marked as Ext, P-2 in these proceedings, in which the grievance of the employees in question has been represented to the management.

6. The petitioner further states that copy of this communication was sent to the officials of the Labour Department, including the second respondent in these proceedings, namely, the Conciliation Officer, Kottayam.

7. There appears to have been attempts at conciliation in the first instance, by the Assistant Labour Officer, Kottayam, and also later on by the District Labour Officer, who is also the conciliation officer, entitled to function as such under the provisions of the Industrial Disputes Act, but these efforts did not yield any material benefit and therefore the District Labour Officer made a report to the state Government under Section 12(4) of the Act.

8. The petitioner states that he has received a communication. Ext. P-3, under attach in these proceedings, from the State Government on 20-3-1961 to the effect :

'From the reports received it is seen that the retrenchment is for bona fide purposes. The case is therefore not a fit one for adjudication.'

9. According to the Union, the case, of the workers concerned has never been that the action of the management, in the circumstances of this case, is not bona fide or that it is prompted by victimization of labour, and that on the other hand, their case has been that there is no necessity for retrenchment being effected and even if retrenchment is to be effected, the provisions of the statute has not been complied with. On the other hand, the State Government, according to the learned counsel for the petitioner, has never adverted to these material facts, but has rejected the request of the union for referring the industrial dispute, on wholly irrelevant and extraneous matter.

10. That is more or less the main attach that is made against the order Ext. P-3.

11. There is a counter-affidavit filed on behalf of both the State and the second respondent by the second respondent namely, the District Labour Officer, Kottayam. It is specifically averred in paragraph 1 of the counter-affidavit that the said counter-affidavit is filed both on his behalf as well as under authorisation by the State Government. Though ordinarily I would have expected some further clarification by the State Government as to what materials they took into account and how exactly they felt satisfied one way or the other, prior to the passing of the order Ext. P-3, that also has Become unnecessary because the State Government must be understood to stand by the various statements made by the District Labour Officer in the counter-affidavit filed before this Court.

12. In the counter-affidavit filed, it is admitted by the District Labour Officer, that a dispute did arise between the management of the Phoenix Plywood, Kottayam, and their workmen represented by the Kottayam Plywood Workers Union, consequent on the retrenchment of 6 workers from the establishment from 20-9-1960. It is also stated that the factory employs about 80 workers and that the six workers retrenched were employed as hand sawyers. The retrenchment itself was necessitated conse-quent on the introduction of electric chain saw.

13. The District Labour Officer further says that the Kottayam Plywood Workers Union did raise a dispute over this retrenchment and that

'they contended that there was no necessity of retrenchment and even assuming that there was necessity, the retrenchment was in violation of the provisions of the Industrial Disputes Act.'

I have extracted the actual words used in the counter-affidavit, because that may become material, when I have to consider the very serious attach that is made against the order Ext. P-3 by Mr. M. M. Cherian, learned counsel for the petitioner. The statements made in the counter-affidavit and in particular those extracted above, will clearly show that, both the State Government and the District Labour Officer, were fully aware of the nature of the contentions that the Union was advancing on behalf of the (workmen concerned.

14. It is further stated that the Assistant Labour Officer also held several joint conferences with a view to persuade the parties to settle the dispute and as he did not succeed, the District Labour Officer, Kottayam, who is also the Conciliation Officer, initiated conciliation proceedings and held several conferences to find out whether the dispute can be settled amicably between the parties. But the District Labour Officer states that the union urged that sectional seniority in the sawing section alone should not be taken into account for purposes of retrenchment and that the over-all seniority of the workmen concerned in the entire establishment should be considered. It is also stated that it was the case of the union that the retrenched workers should have been provided with alternate employment as there was absolutely no retrenchment at all. It is also further averred by the District Labour Officer that the management was of the view that the retrenched workers were only employed as hand-sawyers and they were not employed in general work and therefore, consequent on the introduction of electric machinery, these hands be-came surplus and they were retrenched according to the provisions of law.

The District Labour Officer further states that according to the management two of the six workers have already accepted retrenchment compensation and the management was not prepared to provide alternate work for these four persons. The conciliation officer is of opinion that there was no possibility of settlement of the dispute and, therefore, a report was sent to the State Government under Section 12(4) of the Act, fully setting out the steps taken by him for ascertaining the facts and circumstances and also his attempts made for bringing about a settlement; and it is further stated that the District Labour Officer did not recommend that the dispute should be referred for adjudication and these reports are said to bear the date 13th January, 1961. It is also stated that the Labour Commissioner, who is also a conciliation officer, was of the same view that there is no case for reference of the dispute for adjudication. It is again stated that the State Government, on a consideration of the facts and circumstances in the case, came to the conclusion that there was no prima facie case for reference of the dispute to the Tribunal and, therefore, the State Government recorded their decisions and communicated the same to the parties concerned under Ext. P-3. It is further averred that there is no prima facie case for reference of the dispute to an Industrial Tribunal for adjudication.

15. More positively, it is stated by the District Labour Officer that the reasons given in Ext. P-3 for not referring the dispute are quite valid reasons in law and that no extraneous circumstances have been taken into account, before arriving at a conclusion and the conciliation officer was also of the view that there was no violation of any of the provisions of the Industrial Disputes Act committed by the management in the matter of effecting retrenchment.

16. The District Labour Officer further says that the reasons given by the State Government for not referring the dispute to the Tribunal are valid reasons and that as the jurisdiction has been exercised properly, and in accordance with the provisions of the Act, it cannot certainly be interfered with by this Court.

17. It is further categorically stated by the District labour Officer that the question as to whether a dispute should be referred to a Tribunal, appointed under the industrial Disputes Act, is a matter solely within the discretion of the appropriate Government and the petitioner has no right in law to seek for the issue of a writ of mandamus directing the Government to refer the Issue to the Tribunal. Ultimately there is a prayer that the writ petition is to be dismissed with costs.

18. The only question that arises for a consideration in these proceedings will be as to whether the petitioner, in the circumstances of this case, is entitled to the issue of a writ of mandamus, as prayed for by him, directing the State Government to reconsider the question as to whether the dispute is to be referred to the Tribunal for adjudication.

19. Under Ext. P-1, there is no controversy, that the management issued the notice of termination of their services. It is not really necessary for me to consider the merits of the various matters stated in Ext. P-1 excepting to take note of the fact that the workmen will not be necessary after a month and their wages for the particular period will also be paid. According to the union this notice does not satisfy the requirement of Section 25-F of the Industrial Disputes Act. That is, it is also their case, that there is no offer to pay compensation based upon the length of service of the workmen concerned.

20. Ext. P-2 may have some relevancy to find out what exactly was the grievance that was placed by the Union before the management. So far as Ext. P-2 is concerned, that is a communication sent by the union, on behalf of the workmen concerned, on 23-9-1960 to the management. The various matters mentioned therein relate to the grievance of the workmen concerned, that there is absolutely no necessity for effecting a retrenchment in the circumstances of the case and that the workmen concerned should have been provided with alternative employment in the other departments of the industry and even if there is to be retrenchment, the principle of 'Last come first go' has not been adopted by the management. There is also a further averment that even in case the retrenchment is necessary, their rights under the Act should be properly recognised in the matter of payment of wages and compensation.

21. I am adverting to Ext. P-2 specially, because the only reason given by the State Government for refusing to make a reference, as given under Ext. P-3 is that it is seen that the retrenchment is for bona fide purposes. The question as to whether the retrenchment effected by the management in the circumstances of this case is bona fide or not, is not, so far as 1 could see, a matter raised specifically by the union in Ext. P-2.

22. No doubt, the reports furnished by the District Labour Officer, Kottayam, on 13-1-1961 and also the report of the Labour Commissioner sent to the Government on 27-2-1961 have been placed before me by the learned Government Pleader. In the report dated 13th January 1961, the District Labour Officer, after setting out the circumstances under which the dispute has arisen, and also after a reference to the expression of inability of the management to meet the demands of the workers, ultimately winds up by saying that the settlement proceedings have proved abortive due to difference of opinion of the disputants and that no useful purpose will be served in pursuing the matter. In this communication, the District Labour Officer notes that the Union questions the manner in which the retrenchment has been effected by the management; and after referring to the conciliation proceedings taken by him, he also states that according to the Union, the principle 'last come first go' has not been applied in the case. So far as this is concerned, the District Labour Officer says that the management was not prepared to accept this plea advanced on behalf of the Union. No doubt, there is one other observation in the report to the effect that according to the Union, the present retrenchment is actuated more by victimising motives than the want of work also.

23. So far as the report of the Labour Commissioner is concerned, that is sent by him on 27-2-1951. The Labour Commissioner refers to the report of the District Labour Officer and also adverts to a circumstance that during the course of the discussion the Union has agreed to accept the retrenchment of the workers provided they are given adequate compensation for the entire period of service, and according to the Labour Commissioner it is the view of the District Labour Officer that the very circumstance that the Union is prepared to accept the retrenchment if adequate compensation is paid, is enough to show that the retrenchment in question is a genuine one. Then ultimately the Labour Commissioner also agrees with the view of the District Labour Officer that this is not a fit case for reference for adjudication.

24. Quite naturally Mr. M. M. Cherian placed considerable reliance upon the recent judgment of their Lordships of the Supreme Court reported in State of Bombay v. K. P. Krishnan 1960-2 Lab LJ 592: (AIR 1960 SC 1223). In my view, the various matters that have to be taken into account by the State Government, when they have to take a decision in the matter of making a reference, one way or the other, either functioning under Section 10(1) of the Act or under Section 12(5) of the Act have been, if I may say so with great respect, very exhaustively considered, and the various principles that govern such matters, have also been laid down by their Lordships of the supreme Court.

25. Therefore, the case on hand, will have to be decided, according to the various principles laid down by the Supreme Court in the decision referred to above.

26. In that decision, it will be seen that a dispute was raised on behalf of the workers regarding their claim to get bonus, gratuity and certain other benefits. The management declined to accept the demands of the labour and there was an attempt at conciliation by the Assistant Commissioner of Labour who was the conciliation officer. He also reported to the State Government under Section 12(4) that conciliation is not possible, though he expressed the view that the stand taken by the workmen is very reasonable and has to be considered.

27. There was a request made to the State Government referring this dispute for adjudication by the Union. But the State Government, by its communication issued to the respondent therein stated that it does not propose to refer the said dispute to the Tribunal under Section 12(5) for the reason that workmen resorted to go slow during the year 1952-53. This decision of the State Government was challenged before the Bombay High Court, in proceed-ings under Article 226 by the Union concerned. In the said application, the Union prayed for the issue of a writ of mandamus or any other direction or order against the State of Bombay calling upon it to refer the said dispute for Industrial adjudication under Section 10(1) and Section 12(5) of the Act. Mr. justice Tendolkar, who heard the matter in the first instance, granted the writ as prayed for. There was an appeal against the decision of the learned Judge. Chief Justice Chagla and Desai J. confirmed the decision of the learned Single Judge. Again, the decision of the Division Bench was challenged by the State of Bombay before the Supreme Court.

28. Their Lordships of the Supreme Court have considered very elaborately, if I may say so with great respect, the scheme of the Act and also the various provisions of the Act, vesting the power in the State Government to make a reference to a Board or Tribunal as the case may be.

29. So far as the provisions contained in Section 10(1) of the Act are concerned, the learned Judges say:--

'So far as discretion of the Government to exercise its power of referring an industrial dispute is concerned, it is very wide under Section 10(1) but is limited under the second proviso to Section 10(1).'

Then again the learned Judges discuss the scope of proceedings under Section 12(5) of the Act which is the very question that directly arises before me in these proceedings. At page 598 of the report (Lab LJ) : (at p. 1227 ot AIR), after referring to the various sub-sections in Section 12 and after adverting to the provisions of Section 12(5) their Lordships state:

'Where the appropriate Government does not make such a reference, it shall record and communicate to the parties concerned its reasons therefor. This section requires the appropriate Government to consider the report and decide whether a case for reference has been made out. If the Government is satisfied that a case for reference has been made out it may make such reference. If it is satisfied that a case for reference has not been made out. It may not make such a reference; but in such a case it shall record and communicate to the parties concerned its reasons for not making the reference, which in the context means, its reasons for not being satisfied that there is a case for reference.'

30. Then again, the learned Judges consider the question as to whether a reference is to be made by the State Government under Section 12(5), independently of the provisions contained in Section 10(1) of the Act. After a consideration of the various aspects bearing upon this matter, the learned Judges state that it would not be reasonable to hold that Section 12(5) by itself, and independent of Section 10(1), confers power upon the appropriate Government to make the reference. It is the view of the learned Judges that when Section 12(5) says that Government may make such reference it really means that the Government may make such a reference under Section 10(1) of the Act.

31. The learned Judges again consider the question as to whether, in making a reference under Section 12(5), the appropriate Government is bound to base its decision solely and only on a consideration of the report made by the conciliation officer under Section 12(4) of the Act. After considering again the various aspects regarding this point, their Lordships of the Supreme Court finally state at page 599 (of Lab LJ) : (at D. 1228 of AIR), that

'there is no doubt that having regard to the background furnished by the earlier provisions of Section 12, the appropriate Government would naturally consider the report very carefully and treat it as furnishing the relevant material which would enable it to decide whether a case for reference has been made or not; but the words of Section 12(5) do not suggest that the report is the only material on which the Government must base its conclusion.'

32. It is also the view of the learned Judges that it is open to the Government, when acting under Section 12(5), to consider other relevant facts which may come to its knowledge or which may be brought to its notice and it is in the light of all these relevant facts, that the State Government has to come to a decision as to whether a reference should be made or not. If I may say so with great respect, the point is more forcibly stated by their Lordships at page 600 (of Lab LJ): (at p. 1228 of AIR):

'The problem which the Government has to consider white acting under Section 12(5)(a) is whether there is a case for reference. This expression means that Government must first consider whether a prima facie case for reference has been made on the merits. If the Government comes to the conclusion that a prima facie case for reference has been made, then it would be open to the Government also to consider whether there are any other relevant or material facts which would justify its refusal to make a reference. The question as to whether a case for reference has been made out can be answered in the light of all the relevant circumstances which would have a bearing on the merits of a case as well as on the incidental question as to whether a reference should nevertheless be made out or not. A discretion to consider all relevant facts which is conferred on the Government by Section 10(1) could be exercised by the Government even in dealing with cases under Section 12(5) provided of course the said discretion is exercised bona fide, its final decision is based on a consideration of relevant facts and circumstances and the second part of Section 12(5) Is complied with'.

33. The above observations of their Lordships, in my view, clearly show that the decision of the State Government must be arrived at after a consideration of all relevant circumstances, which would have a bearing on the merits of a case, as well as on the incidental question as to whether a reference should nevertheless be made or not. The question will have to be considered in this case, as to whether the order Ext. P-3, under attack, satisfies this test.

34. The learned Judges then consider the question as to whether a writ of mandamus would lie against Government and hold that such a writ would lie if the order passed by it under Section 10(1) is for instance contrary to the provisions of Section 10(1) Clauses (a) to (d) in the matter of selecting the appropriate authority. The learned Judges also consider the further question as to whether a writ of mandamus could issue as against the State Government when it refuses to make such a reference under Section 12(5). The Supreme Court holds that a writ would lie if the State Government does not record and communicate to the parties concerned its reasons for not making a reference. Similarly, the learned Judges also consider the question as to whether such a writ would lie If a party is able to show that the refusal to refer a dispute is not bona fide or is based on a consideration of wholly irrelevant facts and circumstances and hold that a writ of mandamus can be issued in such a case. Their Lordships emphasise the position '.....if in refusing to make a reference, Government is influenced by reasons which are wholly extraneous or irrelevant or which are not germane, then its decision may be open to challenge in a court of law'.

35. In particular the learned Judges observe at page 602 (of Lab LJ): (at p. 1230 of AIR):

'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.'

36. Again at page 603 (of Lab LJ) : (at p. 1230 of AIR) the learned Judges state that :

'Though consideration 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 state, 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.'

37. Ultimately, the learned Judges wind up the entire discussion at page 604 (of Lab LJ) : (at p. 1232 of AIR) as follows :

'It is clear that the Act has been passed in orderto make provision for the investigation and settlement ofindustrial disputes, and if it appears that in cases falling under Section 12(5) the investigation and settlement of anyindustrial dispute is prevented by the appropriate Governmentby refusing to made a reference on grounds which arewholly irrelevant and extraneous, a case for the issue ofa writ of mandamus is clearly established.'

I have quoted rather in extenso the various observationsof their Lordships of the Supreme Court, because in myview, the several aspects which have to be taken intoaccount by a State Government, in taking a decision eitherunder Section 10(1) or Section 12(5) of the Act, have beenlaid down by their Lordships of the Supreme Court, as alsothe circumstances which would justify the Issue of a writof mandamus.

38. As I mentioned earlier, it is on the basis of the various principles laid down by the Supreme Court, in the decision referred to above, that a decision on the matter on hand has to be taken one way or the other.

39. I am not impressed with the contention of the learned Government Pleader that there is an absolute discretion vested in the State Government in the matter of making or not making a reference either under Section 10(1) or under Section 12(5); nor am I impressed with the contention of the learned Government Pleader that it is purely an administrative action, which cannot be challenged by this court under Article 226. In fact, these contentions have been effectively answered by their Lordships of the Supreme Court when they say that notwithstanding the fact that making a reference under Section 10(1) or Section 12(5) can be considered in some respects to be an administrative order, a writ of Mandamus can certainly be issued if a party is able to satisfy the court that a decision has been arrived at by the State Government not on a proper consideration of the materials available before it but taking into account matters which are extraneous. This aspect has been emphasised by the Supreme Court wherein their Lordship's say that if the State Government in refusing to make a reference under Section 12(5) is influenced by reasons which are wholly extreneous or irrelevant or which are not germane then its decision will be open to challenge in a court of law and a writ of Mandamus can be issued under Article 226.

40. Again, the learned Judges set out some of the circumstances, at any rate, where a refusal to make a reference on the part of the State Government, cannot be interfered with by the court and those illustrations are contained again in the judgment of the Supreme Court to the effect that it is open to the State Government ob grounds of expediency to come to a decision that the dispute raised is a very stale one or that the dispute raised is opposed to the provisions of the Act or that it is inconsistent with any agreement between the parties. No doubt, the learned Judges take note of very extreme cases of arbitrariness, wherein the Slate Government declines to exercise its power under Section 10(1) on the ground that the State Government does not like the appearance or the behaviour or manner of the Secretary of the Union or that it disapproves the political affiliation of the particular union which has sponsored this dispute.

41. The learned Government Pleader very strenuously urged that the State Government in this case, in refusing, to refer the dispute for adjudication, cannot be stated to have been influenced by matters, which are either irrelevant or not germane. He also supported the order Ext. P3, as having been passed by the State only alter considering all relevant matters. He also relied on the circumstance that there is no attack by the petitioner on the bona fides of the State Government in passing the order, Ext. P3.

42. If the State has been able to satisfy me that they have taken into account the points in dispute or the grievance of the union, and that they had come to the conclusion that the dispute or point raised by the workmen before them is certainly opposed to the provisions of the Act, as pointed out by their Lordships, then there may be considerable difficulty in the petitioner inducing this court to issue a writ of mandamus. The fact that there is no attack on the bona fides of the State will not, by itself, help the learned Government Pleader. If, an allegation of mala fide is made and established, on that sole ground an order can be set aside. As pointed out earlier, the petitioner may also ask for the issuing of a writ of mandamus on the ground that a decision has been arrived at by the State only on a consideration of matters which are irrelevant and not germane. This is what the petitioner alleges in this case and the point that has to be considered is as to whether the petitioner has succeeded in making out that case.

43. In this case in Ext. P2, as I have already stated, there is absolutely no grievance made by the Union that the action, by way of retrenchment, in the circumstances of this case, is not bona fide or that the management is prompted by the motive of victimisation. On the other hand, their grievance is totally different, viz., that there is no necessity at all for retrenchment, as these workmen could have been given alternative employment in the other departments of the industry. The union, was also taking lip the position, that even if there is to be a retrenchment, the provisions of Section 25F and Section 25G of the Act, have been violated.

44. Therefore the question arises as to whether in passing the order, Ext. P3, the State Government can be considered to have considered the real grievance of the party concerned and whether the contention of Mr. M. M. Cherian, learned counsel for the petitioner, that the decision under Ext. P-3 has been arrived at by taking into consideration, matters which are not germane or relevant, is justified or not.

45. In spite of the considerable attempt made by the learned Government Pleader, appearing for the State, to support the order, Ex. P-3, and notwithstanding the categorical statements made in the counter-affidavit filed by the 2nd respondent, the District Labour-Officer, that no irrelevant matter or any matter which is not germane to enable the State to arrive at a decision, has been taken into account before the order Ext. P-3 was passed, I am not inclined to accept this1 contention. The order, Ext. P3, clearly shows that it is based only on a single reason, gamely, that according to the reports received by the State Government, it is seen that the retrenchment is for bona fide purposes. I have already pointed out that the question as to whether the retrenchment in the circumstances, was bona fide or not was not a matter which was ever in dispute between the parties and therefore in coming to a decision solely on the said irrelevant consideration, it cannot be stated that the State Government, in this case, has acted in conformity with the various principles laid down by their Lordships of the Supreme Court.

46. I have already pointed out that in the counter-affidavit by the 2nd respondent it is admitted, in paragraph 3, that the union contended that there was no necessity for retrenchment and that even if there is to be a retrenchment it was made in violation of the provisions of the Industrial Disputes Act. While this was the controversy raised, even according to the State, what is there in the order, Ext. P3, to show that the State has ever considered this aspect, at all when they decided not to refer the dispute? The answer must be that there is nothing in the order. On the other hand, Ext. P3 goes to show that it is based on a consideration about the bona fide purpose of the management -- a consideration, in my view, of a matter which is both irrele-vant and not germane. Under such circumstances, this court would be justified in issuing a writ of Mandamus under Article 226.

47. Then the question is what exactly is the direction that is to be given. As I am agreeing with the contentions of Mr. M. M. Cherian, learned counsel for the petitioner, that the decision under Ext. P3 has been arrived at by the State, 1st respondent, after taking into account matters either irrelevant and not germane, the only course open to me is to quash the order, Ext. P-3. The petitioner, no doubt, asks for a Mandamus to issue directing the first respondent, State, to refer the dispute between the petitioner and the management for adjudication under the Industrial Disputes Act, 1947. That prayer, as such, cannot be granted. But a writ of Mandamus will issue against the first respondent, the State, to reconsider the question of making or refusing to make a reference under Section 10(1) read With Section 12(5) of the Industrial Disputes Act, 1947, having due regard to the circumstance that the petitioner has no grievance that the retrenchment, in the circumstances of this case, is not bona fide or that it is an act of victimisation. The State Government, when taking a decision, will also have due regard to the case of the petitioner that there was no necessity for retrenchment and that even if there is to be a retrenchment, the retrenchment is in violation of the provisions of the Industrial Disputes Act. The State can take into consideration only such circumstances which are relevant or germane to the question of determining whether a reference should or should not be made.

48. The writ petition is allowed, subject to the directions and observations contained in this judgment, and the parties will bear their own costs.


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