Skip to content


Kunjuraman Nair Vs. Secretary to Labour Department and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1978)IILLJ274Ker
AppellantKunjuraman Nair
RespondentSecretary to Labour Department and ors.
Cases ReferredWorkmen of Firestone Tyre & Rubber Co. v. Management
Excerpt:
.....took effect, 3. the employee as well as the petitioner-union of which he is a member raised an industrial dispute relating to the dismissal of the employee. 4. the conciliation officer-deputy labour commissioner reported failure of conciliation under section 12(4) of the industrial disputes act, 1947, (hereinafter referred to as 'the act'), the government refused to refer the case for adjudication. if the claim raised by the union or the workmen is clearly belated, the government can refuse to refer the question. 6. as regards the scope of judicial review on a decision of refusal to refer the dispute by government the law on the matter is now well-settled. 351. the supreme court has held that the order passed by the government under section 12(5) may be an administrative order and..........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. 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.....
Judgment:

T. Chandrasekhara Menon, J.

1. The General Secretary of the Automobile Employees Association has filed this writ petition on behalf of the Association. One Mr. Raghavan Nair was an employee of the 2nd respondent-Calicut Wynad Motor Service (Pvt.) Ltd. He was dismissed from service by the employer for the alleged misconduct of receiving fares from 15 passengers without issuing tickets. The employee had denied the charges. An enquiry was conducted and pursuant to the same the services of the employee was terminated.

2. At that time an industrial dispute between the management and its workmen were pending before the Industrial Tribunal, Calicut, as Industrial Dispute No. 31 of 1972. Therefore, the management moved the Industrial Tribunal, Calicut for approval of the action taken against the employee, which approval was granted from 21-10-1974, from which date the dismissal took effect,

3. The employee as well as the petitioner-union of which he is a member raised an industrial dispute relating to the dismissal of the employee. It had been contended by the union that the termination of services of the concerned conductor was an act of victimisation and that the enquiry conducted was a farce and that the finding arrived at the enquiry was perverse since the finding is not supported by legal evidence.

4. The Conciliation Officer-Deputy Labour Commissioner reported failure of conciliation under Section 12(4) of the Industrial Disputes Act, 1947, (hereinafter referred to as ' the Act'), The Government refused to refer the case for adjudication. The reason is that the Government considers ' that prima facie a proper enquiry was conducted by the Management'. The petitioner-union seeks to quash this order of the Government. It is contended that the reason gives for not referring the dispute for adjudication is vague and not germane to the facts of the case. The jurisdiction of the Government not to refer a dispute to adjudication must be considered be very limited. If the claim raised by the union or the workmen is clearly belated, the Government can refuse to refer the question. The reason given here is that Government considers it not expedient to refer the matter because the employer has conducted an enquiry. That cannot constitute a valid reason for not referring an industrial dispute to adjudication. In considering the question whether the matter should be referred to industrial adjudication the Government will have to consider not only that there has been a proper domestic enquiry but also the domestic Tribunal could have come to the conclusion it has on the basis of the facts in evidence before it in view of the expanded jurisdiction of the Industrial Tribunal under Section 11A of the Act.

5. A counter-affidavit has been filed on behalf of the State where it is stated that the refusal to refer the dispute by Government was based on the facts available to Government. On considering those facts, Government came to the conclusion that prima facie a proper domestic enquiry was conducted by the management giving every chance to the worker to defend his case before inflicting the punishment. Therefore, Government did not consider it expedient to refer the case for adjudication and the reason communicated to the worker in Ext. P3 was self-explanatory. Government had considered all the relevant aspects of the case before coming to the conclusion that there is no case for reference. It is also pointed out that the subjective decision of Government which is administrative is not amenable to judicial review and there has been no erroneous application of law or any unjustifiable or illegal exercise of power by Government in the matter. Government considered those points which are germane to the issue and the decision was also communicated to the petitioner.

6. As regards the scope of judicial review on a decision of refusal to refer the dispute by Government the law on the matter is now well-settled. The question has been considered by the Supreme Court in State of Bombay v. Krishnan, K.P. and Ors. 1960-II L.L.J. 592 and in Bombay Union of Journalists v. State of Bombay 1964-II L.L.J. 351. The Supreme Court has held that the order passed by the Government under Section 12(5) may be an administrative order and the reasons recorded by it may not be justifiable in the sense that their propriety, adequacy or satisfactory character may not be open to judicial scrutiny ; nevertheless if the Court is satisfied that the reason 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. 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,

7. Justice Gajendragadkar speaking for the Court had pointed out that in considering the question of expediency, the Government may take note of 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. 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 the case as well as on the incidental question as to whether a reference should nevertheless be made or not,

8. As regards the scope for intervention by the High Court under Article 226 of the Constitution, Supreme Court points out that the Court will not be sitting in appeal over the decision of the Government and is not entitled to consider the propriety or the satisfactory character of the reasons given by the Government. In giving reasons to a party for refusing to make a reference under Section 12(5), the appropriate Government has not to write an elaborate order indicating exhaustively all the reasons that weighed in its mind in refusing to make a reference. It is no doubt desirable that the party concerned should be told clearly and precisely the reasons why no reference is made, because the object of Section 12(5) appears to be to require the appropriate Government to state its reasons for refusing to make a reference so that the reasons should stand public scrutiny. But that does not mean that a party challenging the validity of the Government's decision not to make a reference can require the Court in writ proceedings to examine the propriety or correctness of the said reasons. 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.

9. The scope and ambit of the powers of the Court on a question of refusal to refer dispute for industrial adjudication on the basis of the Supreme Court decision was considered by Mr. Justice Poti in the case of Workmen of Cochin Chamber of Commerce v. State of Kerala 1976-II L.L.J. 109. The petitioners therein were employed by the Cochin Chamber of Commerce and Industry, Cochin. They were charged with negligence and dereliction of duty and after enquiry they were dismissed from service. The grounds on which the satisfaction is based must be such as a rational human being can consider connected with the fact in respect of which the satisfaction is to be reached. They must be relevant to the subject-matter of the inquiry and must not be extraneous to the scope and purpose of the statute. If the authority has taken into account, it may even be with the best of intention, as a relevant factor something which it could not properly take into account in deciding whether or not to exercise the power or the manner or extent to which it should be exercised, the exercise of the power would be bad. The well-known passage in Sharpe v. Wakefield [1891] A.C. 173 at 179, was also taken note of. There the Court had said :.When it is said that something is to be done within the discretion of the authorities...that something is to be done according to the rules of reasons and justice, not according to private opinion...according to law and humour. It is to be, not arbitrary, vague, fanciful, but legal and regular.

Justice Poti pointedly refers to Section 11A of the Act. This provision was brought into force by an amendment which came into force on 15-12-1971. The Supreme Court in Workmen of Firestone Tyre & Rubber Co. v. Management 1973-1 L.L.J. 278, had considered the scope of the power under Section 11A. (See also A.I.R. 1973 S.C. 1227). Justice Vaidialingam speaking for the Court pointed out to the statement of objects and reasons when Section 11A was introduced in the Parliament. It would appear that the International Labour Organisation in its recommendations concerning termination of employment at the initiative of the employer, adopted in June, 1963, had recommended that a worker aggrieved by the termination of his employment should be entitled to appeal against the termination among others, to a neutral body such as an Arbitrator, a Court, an arbitration committee or a similar body and that the neutral body concerned should be empowered to examine the reasons given in the termination of employment and the other circumstances relating to the case and to render a decision on the justification of the termination. The International Labour Organization had further recommended that the neutral body should be empowered if it finds that the termination of employment was unjustified to order that the worker concerned, unless reinstated with unpaid wages, should be paid adequate compensation or afforded some other relief. It is in accordance with these recommendations that it was considered that the Tribunal's power in an adjudication proceeding relating to discharge or dismissal of a workman should not be limited and that the Tribunal should have the power in cases wherever necessary, to 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 given 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. For this purpose, the new Section 11A was proposed to be inserted in the Industrial Disputes Act, 1947. Therefore, the Supreme Court held that Section 11A gives the Industrial Tribunal more or less the appellate powers in regard to the decision of the Tribunal on the basis of which the order discharging or dismissing the workman has been made. That would enable Labour Courts and National Tribunal to examine the case on merits and if satisfied that the order of dismissal or discharge was not justified to set aside the order and direct reinstatement of the workmen on such terms and conditions, if any, as it thinks fit or give such other relief to the workmen including the award of any lesser punishment.

10. Justice Poti's observations is apposite in the context of the contention raised on behalf of the petitioner. One of the relevant questions for consideration of the Government in the matter of reference would have been whether evidence recorded at the domestic enquiry would have justified the conclusion reached by the management and further whether in the circumstances of the case the punishment was merited. These would have been open to consideration and quite relevant before the Industrial Tribunal in the event of a reference. Apart from the ground of victimization, or unfair labour practice there were grounds recognized in law for interference with the punishment imposed upon the workmen by the management after enquiry. The irregularity of the proceedings by which the ultimate punishment was imposed in the domestic enquiry was also a ground for examination. His Lordship was of the view that in the order of the Government concerned in the proceedings before him, the Government seems to have considered only whether action had been taken in accordance with the principles of natural justice. The Government found that it had been so taken and thereupon came to the conclusion that prima facie the action was not mala fide. Learned Judge agreeing with the counsel for the petitioners in that case held that the order of the Government showed that the Government had chosen to apply wrong test and the approach was irrational. His Lordship further proceeded to state that the reasons given by the Government were not supported by the facts stated in the very order itself and the reasons will not lead to the conclusion or decision that there need be no reference.

11. The reason given by the Government here is that Government did not consider it expedient to refer the case for adjudication. On considering the facts, Government came to the conclusion that prima facie a proper domestic enquiry was conducted by the management giving every chance to the worker to defend himself before inflicting punishment. The question for the 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 in the order of dismissal and whether the punishment imposed could be justified on the facts disclosed in the evidence. These are certainly relevant factors for the consideration of the Government and since these relevant factors are not considered, the order is opened to objection.

12. It might be noted that the decision of Justice Poti referred to above has been accepted by a Division Beach of this Court, a case reported in Workmen of J&P; Coats (India) V. State of Kerala, (1977) K.L.T. 546. There the Government has refused to refer the question to the adjudication of the Industrial Tribunal on the ground that the Government did not find anything prima facie mala fide on the part of the management in having dismissed the two workmen. Justice Eradi speaking for the Court pointed out that it would be wholly wrong on the part of the Government to confine its 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. His Lordship pointed out that 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.

13. Based on the above discussion I am of the view that Ext. P3 order refusing to refer the labour dispute concerned as per the adjudication is clearly illegal and void. Therefore, I would a writ of mandamus directing the 1st respondent-Government to consider the question of reference to the Industrial Tribunal under Section 10(1) of the Act, and the dispute concerned in this case in accordance with law. The O.P. is disposed of as above. It will only be proper in the light of the fact that the employee concerned was dismissed from service as early as 21-10-1974. The Government should consider the question and pass appropriate orders in the matter as expeditiously as possible before 31-3-1978.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //