1. This is a petition by a dismissed workman through his Union to quash the order of the Government dated 14th September 1959 declining to make a reference for adjudication of an industrial dispute relating to the propriety of the termination of his services.
2. He was employed as a Head clerk in the South India Saiva Siddhanta Works, a publishing society. By Its letter dated 9th December 1958, the employer dismissed him from service with effect from the forenoon of 10th December 1958, on the ground that the Managing director of the Society presumed that he had written an article in the 'indunesan' dated 24th October 1958, regarding some alleged malpractices in the Society. The cause of the Head clerk was taken by his Labour Union and became the subject matter of a dispute which the concerned Labour officer attempted to unsuccessfully conciliate. The labour officer made a report on 10th August 1959 of his failure to conciliate. Thereafter the Government passed the following order with reference to the report.
'On a careful examination of the case the Government find that the termination of services of K. P. Muthiah Pillai is justified. The Union may, therefore, advise the worker to accept the sum of Rs. 1034-47 offered by the management towards notice pay and compensation. There is no case for adjudication.'
3. It is this order which is sought to be quashed. But realising that the order of the Government is not even a quasi-judicial one, the petitioner has made an application to this Court, viz., C. M. P. No. 9582 of 1961, praying for an amendment of the petition originally filed and treating it as one for the issue of a writ of mandamus. This petition Is allowed and the writ petition will be considered as one for mandamus.
4. Ex facie the order of the Government extracted above it is obvious that there are two errors which vitiate It. One is that the Government constituted itself as the arbiter of the dispute and proceeded to say that in its opinion the termination of the services of the head clerk was justified. The Government even went further and took up the role in the order of an adviser to him to accept the sum offered by the management towards notice pay and compensation. Evidently this had reference to the fact that the dismissal of the head clerk was not preceded by any notice of charges, enquiry and finding by the management. Clearly, the Government in exercise of its power under Section 10(1)(c) had no right to take upon the duty of adjudicating the dispute. The limited power that has been conferred by that provision is to make a reference and not adjudicate on the dispute sought to be referred for adjudication. There may be a variety of reasons why the Government may consider that no reference of the dispute was called for. But it cannot include its own judgment on the propriety or otherwise of the dismissal which is a matter which has got to be left to the appropriate labour court for adjudication.
5. The other error in the order is that it does not comply with the requirement of Sub-section (5) of Section 12. Under that provision, where the Government does not make a reference, it should record and communicate to the parties concerned its reasons therefor. Though theGovernment has informed the Union that it did not propose to refer the dispute, it failed to record the relative reasons for coming to that conclusion. Instead it assumed jurisdiction to sit in judgment over the propriety of the dismissal and held that it was justified. To do so, in my opinion, is certainly not within its power under Section 10(1). That, in its opinion, the dismissal was justified cannot therefore, be a reason for declining to make a reference. The order now impugned has therefore to be viewed as one containing no reason for the refusal to make a reference.
In State of Madras v. Swadeshamitran Printers Labour Union, : (1951)2MLJ619 , this court held that where the Government failed to record its reasons as enjoined by Section 12(5) it must be regarded as having failed to do its duty cast on it by that statutory provision.
6. The result is, the order in question of the Government has to be held to be non est in law. The Government will dispose of afresh according to law the questions whether a reference of the dispute is called for. The petition as amended, is allowed. No costs.