J.B. Metha, Ag. C.J.
1. The petitioner, Trade Union of the Employers, which had raised the dispute of one worker Dharmendra Singh, has filed this petition because the Government has refused to make the reference as per the order at Annexure 'F' dated January 17, 1977. This Badli worker, Dharmendra Singh, who was working in the opponent No. 2 Mills from 1971 had been discharged by the Mills on December 17, 1975 on the ground of various charges of misconduct alleged against him. The matter had been taken up before the Industrial Tribunal for getting approval under S. 33(2)(b). The Industrial Tribunal had by the order dated February 9, 1976 in terms observed that a prima facie case was disclosed and proper inquiry having been made, the pre-conditions for such approval application were satisfied. However, having regard to the limited jurisdiction which the Tribunal possessed at this stage of approval, it was terms held by the Industrial Tribunal that the approval was granted subject to the right of the concerned employee to seek reference challenging the impugned order made against him. The Tribunal, that is why, in terms noted that the conditional approval had been granted to the order of termination of employment at Ext. 6 and this concerned employee was at liberty to seek a reference in an appropriate forum challenging the said order. The petitioner-union, therefore, raised this dispute by its letter at Annexure 'C' of July 4, 1976 raising various grounds in support of this demand of reinstatement with back wages. The inquiry was challenged on various grounds that the witnesses were not independent and that there was not an iota of evidence as to the charge drinking. Even the rickshaw driver had not been examined and even regarding the threat the concerned Shri Shukla has not deposed a single word about it. The order was even attacked on the ground that it was vague as it never disclosed which charges had been established and, therefore, it was attacked as an arbitrary order and its legality and justification had been challenged by raising this dispute. The company had also filed it statement before the Conciliation Officer and after failure report, the Government passed a very cryptic order dealing with the whole matter in a cavalier callous manner. In the impugned order at Annexure 'F' dated January 17, 1977, it is merely stated 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 Dharmendra Singh, there was nothing which was required to be put for adjudication of the Industrial Tribunal because the unions had not given proper reasons is support of its demand. Therefore, the union has filed the present petition.
2. The Government has passed its order under a complete misconception of its jurisdiction in these labour matters and has not borne in mind the most relevant factors in this case especially of this statutory change in law which had been made after the enactment of S. 11A in the Industrial Disputes Act, 1947, because in case of such industrial disputes 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 though fit, or give such relief to the workmen including the lesser punishment instead of discharge of dismissal as the circumstances of the case might require.
3. The impact of this new provision has been examined in the decision in Workmen of Firestone Tyre & Rubber Co. v. The Management, [1973-I L.L.J. 278]; by pointing out that S. 11A now gives full power to the Tribunal to go into the evidence and satisfy itself on both the points as to whether the misconduct in proved or not, and if proved, whether it would warrant the punishment of dismissal or discharge. Their Lordships pointed out that now the jurisdiction of the Tribunal of reapprise the evidence and come to its conclusion ensures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilty or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Now the new law has put both the categorize on par by S. 11A. The Tribunal could even hold that the proved misconduct did not merit punishment by way of discharge or dismissal and, therefore, could award to the workman any lesser punishment instead. Therefore, the power was given to interfere with the punishment and alter the same. The whole ratio of this decision is that he fetters which existed under the old law by limiting the powers of the Tribunal to the limitations evolved in the Indian Iron & Steel Co. Ltd. case [1958-I L.L.J. 260]; has been now lifted by this new provision and a wide jurisdiction was given to the Industrial Tribunal to come to its own decision about the guilt or otherwise of the workman concerned and even to substitute a lesser punishment. The change in law had been effected to cover these specific cases of individual discharge and dismissal and that is why the State Government would have now to keep in mind this enlarged scope of the industrial adjudication in the matters of discharge or dismissal even of an individual workman while making the reference because the original fetters have now been lifted on the Tribunal's jurisdiction.
4. The second important factor which assumes great importance in this case was that when the matter originally went before the Industrial Tribunal by way of approval application under S. 33(2)(b), the Industrial Tribunal was careful enough to give only a conditional approval reserving liberty to this workman and his right to get the reference on the merits about this dispute. Besides, the order at Annexure 'F' is a thoroughly groundless order when it proceeds to state that there was nothing to refer the matter for adjudication because the union had not given any reason whatsoever in support of its demand. When the inquiry in the present case was challenged so emphatically on all the grounds by making a separate attack of the reasoning of the order and when the final order was also attacked on the ground that no distinction had been made as to what charge had been established and what not sufficient grounds had been prima facie raised at least for adjudication and it could never be held that the union had not given any grounds for this reference if the true scope and ambit of this adjudication under S. 11A of such a dispute had been properly appreciated as per the settled legal potion when even a statutory discretion is exercised in this cavalier callous manner without understanding the scheme of the law under which this power is to be exercised and without considering these relevant factors on which alone this power could be exercised, the order is completely vitiated as it is tantamount to abdicating its jurisdiction of authority to exercise jurisdiction by applying the mind to the relevant grounds.
5. The legal position in such cases is now well-settled after a series of decisions. In Bombay Union of Journalists v. State of Bombay. [1961-I L.L.J. 351], their Lordships in terms pointed out that whether a reference should be made under S. 12(5) is question which has to be disposed of by acting also under S. 10(1) which confers desecration on the appropriate Government either to refer the dispute, or not to refer it, for industrial adjudication according as it is of the opinion that it is expedient to do so or not. In other words, in dealing with an industrial dispute in resent of which a failure report has been submitted under S. 12(4) the appropriate Government ultimately exercises its power under S. 10(1), subject to this that S. 12(5) imposes an obligation on it to record reason for not making the reference when the dispute has ton through conciliation and failure report has been made under S. 12(4). Reiterating the earlier observation in State of Bombay v. K. P. Krishnan. [1960-II L.L.J. 592], their Lordships held that when the appropriate Government considers the question as to whether any industrial dispute should be referred of or adjudication or not, it may consider, Prima facie the merits of the dispute and take into account other relevant consideration which would be expedient or not. Therefore, Their Lordships emphasized 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 Government cannot purport to reach final conclusions, for that again would be the province of the Industrial Tribunal. But it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under S. 10(1) read with S. 12(5), or not. If the claim made is patently frivolous, or is clearly belated, the appropriate Government 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 nor not. It must, therefore, be held that prima facie examination of the merits could not be said to be foreign to the enquiry which the appropriate Government has to make in dealing with such a dispute under S. 10(1). Therefore, the decision settles the whole question that Government has no business to consider the merits of the dispute and to dispose of the questions of law or the disputed questions of facts which lie really within the province of the Industrial Tribunal to whom, the Legislature has left the take of adjudication of an industrial dispute. What lies in the ambit of the Government's jurisdiction for not making a reference is to consider whether a prima facie case for reference existed or not and whether certain grounds, as pointed out by their Lordships, it was not expedient to make a reference as for example, when the claim was patently frivolous clearly belated or due to its adverse impact on the industrial relations in the State. Therefore, it is on these mandatory guide lines that this statuary discretion has to be exercised by taking into consideration only these relevant guide lines. It is true that as pointed out at page 1622, no elaborate reasons would be necessary but whatever reasons are given have to stand a public scrutiny and even a writ of mandamus would lie if the reasons given show that the Government took into account a consideration which was irrelevant or foreign or that the Government had gone beyond its province by reaching final decisions on the questions of law or dispute questions of fact.
6. The other decision in Prem Kakar v. State of Haryana, A.I.R. 1976 S.C. 1474 relied upon by Mr. Divecha clearly reiterates this settled legal position. There the Government had prima facie found that the concerned workman was not a workman within the definition of the relevant section and, therefore, it was held that that order was not vitiated. The decision could not be pressed in aid in the present case where the Government has ignored the most relevant facts as to the entire change in law enlarging the powers of the Industrial Tribunal for adjudication of this type of disputes under S. 11A and the fact that even an Industrial Tribunal had in this very matter passed a conditional order keeping upon this right of the workman. Besides, in any even, after such an exhaustive challenge of the order of the management on various grounds of the inquiry being not proper and the order being completely vitiated as contended by the union, it could nerve be stated that the union had not given any proper ground for seeking this reference. Whoever has passed this order on behalf of the Government has completely ignored S. 11A from the statute book and, therefore such a totally ground less order is no order in the eye of law and must be set aside even in exercise of writ jurisdiction.
7. In Mysore State Road Transport Corporation v. Mirja Khasim, [1977-I L.L.J. 262]; their Lordships have now settled the quest on how far such case of discretion could be properly reviewed. The basis principle to be borne in mind is that like all other judicial discretion, the discretion must be exercised according to commonsense and according to justice, and if there is a miscarriage in the exercise of it, it must always be reviewed. Therefore, when in such a matter of industrial adjudication when the law has now so sufficiently advanced to provided such wise measure of power of adjudication of this dispute of individual discharges and dismissal. If the officer of the State Government exercising this power is incomplete darkness about this enlargement of the jurisdiction of the Industrial Tribunal and if he seeks to exercise his power of refusing a reference of individual disputes in this cavalier manner without applying his mind to the relevant aspects and the relevant statutory guidelines which are evoked for exercising this discretion, this High Court could surely review the discretion in such cases as it is in complete contravention of the statute. It is true that the mandamus would not be to make a reference but the mandamus would have to he issued only to reconsider the matter in the light of the aforesaid settled principles by properly a applying the mind.
8. In this view of the matter this petition is allowed by setting aside the impugned order at Annexure 'F' and the matter shall now go back to the State Government for passing a fresh order after reconsideration in the light of the aforesaid observation within a period of one month from today. Rule is accordingly made absolute with cost against respondent No. 2 only.