1. This petition by the Salem DistrictTextile Workers Union is for a direction to the first respondent to refer a certain issue for adjudication under Sections 10(1) and 12(5) of the Industrial Disputes Act. It would appear that the second respondent is a public utility service concern. There was a sudden strike on the part of the workers of the second respondent without even giving a notice as required by Section 22. Consequent upon this, the 39 workers with which this petition is concerned, and. certain other workmen of the second respondent were dismissed from service. A dispute having arisen, it was the subject-matter of a conciliation. On 19th December 1958. a settlement was reached under Section 12(3) between the second respondent on the one hand and the petitioner on the other, one of the terms of which was that all the workmen who went on strike should be reinstated since they expressed regret and promised not to indulge in such strikes. Another term of the settlement was that 39 workers would be dealt with separately on a charge that they had instigated the other workmen to participate in the strike. It appears from the conciliation report that as a matter of fact the 39 workers were reinstated and the dismissal orders against them were withdrawn, pending of course an enquiry against them on the charge of instigation. I am told at the Bar, that subsequently, as a result of an enquiry against these workmen, they were found guilty of instigating the other workmen to strike, and on that finding, all the 39 were dismissed from service. The propriety of this action having been challenged by the petitioners' Union, and the conciliation in relation to the dispute having also failed, the matter went up to the Goverrnnent for making a reference of the dispute under Section 10(1), the dispute relating to the propriety of the dismissal of the 39 workmen. The Government, by its order dated 24th July 1959, declined to make a reference, and, as something will depend upon the language or the order, it may be set out. The order reads,
'It is observed that these workers were responsible for the illegal strike from 29-11-1958 to 1-12-1958 and had also prevented loyal workers from entering the mills. There is no case for adjudication. It is reported that the management have agreed before the Labour officer, Salem, to pay compensation to these dismissed workers equivalent to 15 days wages for each completed year of service. The management are advised to pay compensation as agreed to and the Union is requested to persuade the workers to accept the compensation.'
According to the petitioner, this order is invalid because the Government practically adjudicated the industrial dispute by giving a finding that the 39 workers had prevented the loyal workers from entering the mills.
2. It seems to me that the objection to thevalidity of the impugned order has to be upheld.This Court held in the Workmen of the SouthIndia Saiya Sidhantha Works Publishing SocietyTirunelveli Ltd. v. Govt. of Madras, : (1962)IILLJ120Mad .
'The Government in exercising its power under Section 10(1)(c) of the Industrial Disputes Act, 1947, has no right to take upon itself the duty of adjudicating a dispute. While the Government may refuse to refer a dispute regarding the dismissal of a workman for adjudication due to several reasons, it cannot do so on the ground that in its judgment the dismissal was justified. The Government has no power to decide the propriety or otherwise of a dispute on the merits, which has got to be left to the appropriate Labour Court or Tribunal for adjudication.'
The impugned order clearly shows that, even though the 39 workmen denied that they prevented the loyal workers from entering the mills, the Government took upon themselves to find to the contrary. Whether the 39 workmen prevented the loyal workers from entering the mills was a question of fact and a disputed question of fact. It may also be observed that these 39 workmen had in point of fact, as a result of the settlement we have referred to, been reinstated in service, though, of course, with the reservation that they would be dealt with separately on a charge of instigating the other workmen to strike. This circumstance, I think, will, therefore, take the instant case outside the purview of the second proviso to Section 10(1). Even that proviso docs not enable the Government to determine a disputed question of fact and on j that basis come to a conclusion that there was no case for adjudication. The impugned order of the Government being one in excess of its jurisdiction under Sections 10(1)(c) and 12(5), it is illegal and void.
3. A rule nisi will issue that the first respondent should consider the question afresh whetherto make a reference or not. The petition is allowed in those terms. No costs.