P.S. Kailasam, J.
1. The question that arises in all these writ petitions is whether the Government having once declined to refer an industrial dispute for adjudication after consideration of a conciliation report, could, by a subsequent order, refer the same dispute for adjudication.
2. Writ Petitions Nos. 2900 of 1967 and 2901 of 1967 relate to a dispute between Best & Co. (P.) Ltd., and its workers. M/s. Best & Co. was owning seven factories in Madras, and each of these factories had its own licence issued under the Factories Act, and workmen had been recruited for each factory separately. One of the factories, namely, Bestonite Factory, had to stop production due to non-availability of sulphuric acid. The factory was closed on 9th January, 1966 and thirty-four employees (29 workers and 5 in the staff section) were given notice and paid closure compensation. Of the thirty-four persons, seventeen persons (12 workers and five staff) received the amount and settled the accounts. The other seventeen put forward a claim through the Union that they should be absorbed and provided with employment in the other factories owned by the petitioner. The company declined the request of the Union and conciliation proceedings were held by the Labour Officer, who by his report dated 25th May, 1966 intimated to the Government that no conciliation could be effected. After considering the said report as well as the communication from the Commissioner of Labour dated 9th August, 1966, the Government acting under Section 12 (5) of the Industrial Disputes Act passed an order dated 3rd September, 1966 declining to refer the dispute for adjudication. The Government stated in the order that the Bestonite Factory was closed for bona fide reasons and that the other factories owned by the petitioner were separate entities and therefore, it was not possible to absorb the affected workers in any of them. The Union persisted in their claim and addressed a letter to the Deputy Secretary to Government, Department of Industries, Labour and Housing on 19th November, 1966 asking for reconsideration of the earlier order of the Government declining to make a reference for adjudication. A copy of the letter was served on the company. Subsequently, the Labour Officer requested a representative of the petitioner to go over to his office for discussion on 17th March, 1967. The petitioner-company explained their stand. Subsequently, by an order dated 11th July, 1967 the Government, purporting to exercise the powers conferred on it under Section 10 (1) of the Industrial Disputes Act, referred the matter for adjudication to the Labour Court. W. P. No. 2900 of 1967 is filed for the issue of a writ of certiorari for quashing the order of the Government referring the matter for adjudication on the ground that it is illegal, ultra vires and lacking in bona fides and opposed to principles of natural justice. W. P. No. 2901 of 1967 is filed by the company for the issue of a writ of prohibition restraining the Labour Court from proceeding with the trial and enquiry of the reference made to it by the Government.
3. W.P. No. 1929 to 1967 relates to the dispute between the Kumbakonam City Union Bank Ltd., and the Secretary, Kumbakonam City Union Bank Employees Union, Kumbakonam. The Bank served a memo to S. Sivaraman, an employee of the Bank on 14th September, 1966 asking him to furnish his explanation as to why he should not be charged for certain offences. On 21st September, 1966, Sivaraman furnished his reply. On receipt of the explanation, four charges were framed against the first respondent on 29th September, 1966 and he was notified that an enquiry would be conducted in accordance with the principles of natural justice on 5th September, 1966 at 4 p. m. On 5th October, 1966, an enquiry was held by a sub-committee when Sivaraman was present and evidence was recorded. On 13th October, 1966, the enquiry body arrived at a provisional conclusion that Sivaraman was guilty. Notice was given as regards the proposed punishment and on receipt of the written statement from Sivaraman, the sub-committee on 17th October, 1966 dismissed him from service. The Staff Union of the Bank took up the matter and gave notice of strike calling for reinstatement of Sivaraman. The Labour Officer opened conciliatory talks and subsequently on 18th March, 1967 the Labour Officer submitted his failure report to the Government under Section 12 (4) of the Industrial Disputes Act. On 25th April, 1967, the Government declined to refer the dispute on the ground that Sivaraman was dismissed from service after proper enquiry in which charges against him have been proved and that there was no violation of the principles of natural justice. Subsequently, the Government on a consideration of its order passed on 25th April, 1967, referred for adjudication the dispute between the Bank and the Union. W.P. No. 1929 of 1967 is filed by the Bank for the issue of a writ of certiorari to quash the order of the Government referring the dispute for adjudication.
4. W.P. No. 3817 of 1967 is filed by the Ennore Foundaries Limited, Ennore, for the issue of a writ of certiorari calling for the records in G.O. No. 2228, Department of Industries, Labour and Housing dated 4th November, 1967 reviewing its earlier order and referring the dispute for adjudication. Ten workmen of the Welding Department had been supsended for misconduct for six days ending on 1st July, 1966. On 2nd, July, 1966, the said ten workmen reported for duty, but refused to do any work that was allotted to them in spite of repeated appeals by the management. They were suspended on the same day pending an enquiry. The ten workmen continued to remain in the premises after the working hours. On the 3rd of July, 1966, charges were framed on the ten workmen and they were asked to be present for an enquiry to be held in the office on the 4th July, 1966. The workmen did not attend the enquiry, but continued to remain in the work spot without doing any work. The enquiry was duly held and the charges against the workmen were held to be proved. The workmen were thereupon dismissed from service. The Staff Union Secretary raised a dispute in respect of the dismissal of the workmen which was taken up by the Labour Officer.. The Labour Officer sent a conciliation report on 14th December, 1966 and on a consideration of the report. the Government passed an order in G.O.Rt. No. 750, Department of Industries, Labour and Housing, dated 25th April, 1967 declining to refer the dispute for adjudication on the ground that the workmen were dismissed after an enquiry in which they refused to participate. Subsequently by G.O.Rt. No. 2229, Department of Industries, Labour and Housing, dated 4th November, 1967, the Government referred the matter for adjudication. The legality of the said order is challenged in W.P. No. 3817 of 1967. The petitioner has also prayed for the issue of a writ of prohibition restraining the Labour Court, Madras, from proceeding with the reference.
5. W.P. No. 1721 of 1966 and W.P. No. 3436 of 1967 refer to the dispute between Dalmia Cement (Bharat) Ltd. and the workmen of Dalmia Cement Ltd. The dispute relates to the transfer of one Swaminathan, Cashier of Dalmia Cement : Ltd., Dalmiapuram, to Messrs. Orissa Cement Ltd., Rajganjpur, Orissa, a sister concern of Dalmia Cement (Bharat) Ltd., Dalmiapuram. The transfer order was made on 31st May, 1965. Swaminathan protested against the transfer by the company and did not join the Orissa firm, but applied for leave on medical grounds. Subsequently, Swaminathan did not join Orissa Cement Ltd. and his name was struck off the rolls of the Orissa Cement Ltd. on the ground of abandonment of employment. The matter was taken up for conciliation by the Labour Officer, Tiruchirapalli, who sent a conciliation report to the Government on 7th October, 1965. On a consideration of the report, the Government passed G.O.Rt. No. 1079, Department of Industries, Labour and Housing, dated 3rd June, 1966 declining to refer the matter for adjudication on the ground that Swaminathan was transferred in accordance with the rules of the company and that there was no victimisation. The Union thereupon filed W.P. No. 1721 of 1966 impleading Dalmia Cement (Bharat) Ltd., praying for the issue of a writ of mandamus directing the Government to refer the dispute for adjudication. Subsequently, the Government passed an order of reference on 6th September, 1967.
6. W.P. No. 3562 of 1967 relates to a dispute between Bharat Heavy Electricals Ltd., Tiruvarambur and the Boiler Plant Employees' Union, Tiruvarambur. One Joseph, a driver in the petitioner company, threatened and intimidated another worker by name Periaswami with serious consequences while on duty. A charge sheet was given to the worker on 7th May, 1966. The worker submitted an explanation on 13th May, 1966 denying the charges. The management held an enquiry on nth, 13th and 15th of June, 1966. The enquiry committee submitted its finding on 28th June, 1966, holding that the charge of threatening and intimidating Periaswami with dire consequences had been proved beyond a shadow of doubt. On the basis of the findings of the enquiry committee, the Works Manager of the petitioner company came to the conclusion that the charge was made out and passed orders on 29th June, 1966 removing the worker from service from 1st July, 1966. The Union raised a dispute and the Labour Officer, submitted a report to the Government on 27th February, 1967. The Government on a consideration of the report on 25th April, 1967 declined to refer the dispute for adjudication on the ground that the workman was dismissed from service after an enquiry in which the charge against him was held proved. Subsequently, the Government passed an order on 29th August, 1967, in G.O. Rt. Ms. No. 1697 making a reference of the same dispute for adjudication. The order of reference is challenged in W.P. No. 3562 of 1967 praying for the issue of a writ of oertiorari quashing the order of reference.
7. In all the above writ petitions, the competency of the Government to refer a dispute for adjudication, when once it was declined, is questioned.
8. Before considering the above question, a plea by the petitioner in W.P. No. 3436 of 1967 that the dispute is not an industrial dispute may be disposed of. The dispute was originally taken by the Union, but the petition for reconsideration was made by the aggrieved person. Therefore, it was submitted that the dispute would not continue to be an industrial dispute. This contention cannot be accepted, for, the dispute was raised by the Union and the mere fact that subsequently the worker requested reconsideration will not make the dispute any the less an industrial dispute.
9. The Industrial Disputes Act, 1947 was enacted to make provision for the investigation and settlement of industrial disputes. The Act provides for the constitution of Works Committee, Conciliation Officers, Boards of Conciliation Courts of Inquiry, Labour Courts, Tribunals and National Tribunals for settlement of disputes. Section 10 provides for reference of disputes to Boards Courts or Tribunals. Section 10 (1-A) enables the Government when it is of opinion that any industrial dispute exists or is apprehended, to refer, by an order in writing at any time, the dispute to the Board or to the Court of enquiry, or a Tribunal as the case may be. Chapter IV of the Act prescribes the procedure, powers and duties of the authorities. Section 12 enumerates the duties of Conciliation Officers. Section 12 (1) provides that where any industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility service and a notice under Section 22 has been given shall, hold conciliation proceedings in the prescribed manner. Under Section 12 (2) the Conciliation Officer is empowered to investigate the dispute and all matters affecting the merits and the right settlement thereof, and do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. If a conciliation has been effected the Conciliation Officer is required to send a report to the appropriate Government with a memo of settlement signed by the parties. If no such settlement is arrived at under Sub-section (4) of Section 12, the Conciliation Officer is required to send a full report setting forth the steps taken by him and the circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of' which a settlement could not be arrived at. Sub-section (5) provides that if, on a consideration of the report referred to in Sub-section (.4), the appropriate Government is satisfied that there is a case for reference to a Board, Labour Court, Tribunal or National Tribunal, it may make such a reference and where the Government does not make such a reference, it shall record and communicate to the parties concerned its reasons therefor.
10. The scope of Section 10 (1) and 12 (5) of the Act has been the subject-matter of several decisions of the Supreme Court. In Madras State V.C.P. Sarathy : (1953)ILLJ174SC the Supreme Court held thus : '
It must be remembered that in making a reference under Section 10 (1) the Government is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does no make it any the less administrative in character. The Court cannot, therefore, canvass the order of reference closely to see if there was any material before the Government to support its conclusion as if it was a judicial or quasi-judicial determination. But if the dispute was an industrial dispute as defined in the Act, its factual existence and the expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon, and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because there was, in its Opinion, no material before the Government on which it could have come to an affirmative conclusion on those matters.
In State of Bombay v. Krishnan (1960) 2 L.L.J. 592, the Supreme Court held that Section 12 (5) occurs-in a chapter dealing with the procedure, powers and duties of the authorities under the Act, and it would be legitimate to hold that Section 12 (5) which undoubtedly confers power on the appropriate Government to act in the manner specified by it the power to make reference which it will exercise if it comes to. the conclusion that a case for reference has been made, must be found in Section 10 (1); and it would not be reasonable to hold that Section 12 (5) by itself and independently of Section 10 (1) confers power on the appropriate Government to make a reference. The Court further held that it could not be contended that the appropriate Government acting under Section 12 (5),of the Act is board to base its decision only on a consideration of the report made by the conciliation officer under Section 12 (4). It would be open to the Government to consider other relevant facts which may come to its knowledge, and in the light of all the relevant facts, it has to come to its decision whether 'a reference should be made or not. Regarding the functions of the Government, the Court held that the order passed by the Government may be an administrative order and may not be justiciable in the sense that their propriety, adequacy or satisfactory character may not be open to judicial scrutiny and 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 a writ. It is open to the Government in considering the question of expediency to enquire 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. In Bombay Union of Journalists v. State of Bombay (1964) 1 L.L.J. 351, the Court held that in considering an order made by the Government under Section 10 (1) read with Section 12 (5), the Court is not sitting in appeal over the order and is not entitled to consider the propriety or the satisfactory character of the reasons given by the Government. The decisions referred to above were considered by this Court in Coimbatore District Textile Mills Staff Union v. State of Madras (1967) 2 M.L.J. 508. : (1967) 2 L.L.J. 407. The effect of these decisions is that the Government in passing an order under Section 10(1) read with Section 12 (5) is acting in an administrative character, and has an option to make the reference or not depending on the facts of each case. It is open to the Government in coming to a conclusion under Section 12 (5) to take note of the relevant facts which may be brought to its notice and need not confine itself to the report of the Conciliation Officer. It will thus be seen that the power of the Court in interfering with an order passed under Section 10 (1) read with Section 12 (5) of the Act is very limited and is confined to interference in cases where the Government in passing an order of reference is guided by matters which are extraneous and not germane to the questions.
11. The main contention on behalf of the petitioners is that the Government has no authority to cancel an order issued under Section 10 (1) of the Act. It is contended that if the Legislature intended to confer on the appropriate Government a power to cancel an order made under Section 10 (1), the Legislature would have made a specific provision in that behalf and would have prescribed appropriate limitation on the exercise of the said power. In support of this contention, a ruling of the Supreme Court in the State of Bihar v. D. N. Ganguly and Ors. : AIR1959Mad225 , was strongly relied on. In that case, the Government after making a reference under Section 10 (1) of the Industrial Disputes Act, cancelled the reference in respect of which an industrial dispute was pending adjudication before the Tribunal. The Supreme Court held that the order cancelling the reference was illegal, and could not be sustained. Repelling the contention that a power to cancel or supersede a reference must be held to be included under Section 21 of the General Clauses Act, 1897, the Court held that the rule of construction embodied in Section 21 can apply to the provisions of a statute only where the subject-matter, context and effect of such provisions are in no way inconsistent with such application. The Court after referring to the various provisions of the Act observed that it is only when an order in writing is made by the Government referring an industrial dispute to the tribunal, proceedings commenced; but the scheme of the relevant provisions would prima facie seem to be inconsistent with any power in the appropriate Government to cancel the reference made under Section 10 (1). After referring to the provisions of Section 12 .(5) which makes it incumbent on the Government to communicate its reasons if it decides not to make a reference, the Court observed that if the appellant's argument that the Government could withdraw the reference, it would mean that even after the order is made by the appropriate Government under Section 10 (I), the said Government can cancel the said order without giving any reasons. It proceeded to observe that this position is clearly inconsistent with the policy underlying the provisions of Section 12 (5) of the Act and that if the Legislature had intended to confer on the Government the power to cancel an order under Section 10 (1), the Legislature would have made a specific provision in that behalf and would have prescribed appropriate limitations for the exercise of the said powers.
12. The above quoted passage is relied on by the learned Counsel for the petitioner who submitted that the observations are equally applicable to an order by the Government making a reference as well as refusing to make a reference, for, the statement is in general terms and is not confined to that; portion of Section 12 (5) which relates to the Government making a reference. On the other hand, on behalf of the Government and the respondents, it was strongly contended that the observations should be confined to the facts of that case in which the Government made a reference and the other provisions of the Act became operative, and not to a case where the Government had refused to make a reference. While the observations were made with reference to a case in which the Government sought to withdraw a reference already made, the statement that if the Legislature had intended to confer on the appropriate Government the power to cancel an order, it would have made a specific provision, cannot be said to be inapplicable to that part of Section 12 (5) whore the Government had refused to make a reference, for, in that case also, there is no specific provision enabling the Government to pass an order directing a reference and where it had already decided not to make a reference and recorded and communicated the parties the reasons therefor. The learned Government Pleader referred to a decision of this Court in Radhakrishna Mills v. State of Madras and others : AIR1956Mad113 , and Sri Rama Vilas Service Ltd. v. State of Madras and Anr. A.I.R. 1956 Mad. 115', where Rajagopalan, J., held that an order under Section 12 (5) made on a consideration of the conciliation report is purely administrative in character and that the Government could pass any number of orders. To the extent, the decision rules that the Government can pass an order withdrawing a reference which had been made already, it is not in conformity with the decision of the Supreme Court in State of Bihar v. D. N. Ganguly : (1958)IILLJ634SC . Several High Courts have taken the view that the Government after refusing a reference can subsequently make a reference. Vide the decisions in. Gurumurthi and Anr. v. Ramulu and Ors. (1957) 2 A.W.R. 335 : (1958) 1 L.L.J. 20, L. H. Sugar Factories and Oil Mills Ltd. v. State of U.P. (1961)1 L.L.J. 686; Panipet Woollen and General Mills Co., Ltd. v. Industrial Tribunal (1962) I.L.J. 555; L.H. Sugar Factories and Oil Mills v. State of U.P : (1961)ILLJ686All ; Vasudeva Rao v. State of Mysore (1963)2 L.L.J. 717; Rawalpindi Victory Transport Co. v. State of Punjab (1964) 1 L.L.J. 644; and Shankar Flour Rice and Dhal Mills v. Labour Court (1966) 1 L.L.J. 807. These decisions have not considered the effect of the decision of the Supreme Court in State of Bihar v. D.N. Ganguly : (1958)IILLJ634SC . They expressed the same view as expressed by this Court in Radhakrishna Mills v. State of Madras and Ors. : AIR1956Mad113 , and Sri Rama Villas Service Ltd. v. State of Madras and Anr. A.I.R. 1956 Mad. 115. In Shankar Flour, Rice and Dhal Mills v. Labour Court (1966) 1 L.L.J. 807, in considering the question whether the State Government, when once it decided not to refer the dispute, it could subsequently exercise the power, the Court observed that if a reference is made, it is evidence that a power had been exercised; but if no reference is made, it clearly showed that the power had not been exercised, and that only when a reference is made that the power conferred can be taken to have been exercised and the refusal to make a reference : does not entail the exercise of any power. With respect, I am unable to accept this reasoning, for, even in refusing to make a reference, the Government will have to exercise its power and give reasons for not making the reference. The decision also does not refer to the decision of the Supreme Court in the Ganguly's case referred to above, on which strong reliance was placed by the learned Counsel for the petitioner.
13. The contention of the learned Counsel, that applying the reasoning of the Supreme Court that the absence of a specific legislative provision enabling the Government to cancel an order withdrawing a reference would apply to an order under Section 12(5) refusing to make a reference, cannot be said to be without basis.
14. Mr. Dolia, learned Counsel for the petitioner in W.P. No. 1721 of 1966 submitted that whatever may be the position with regard to the power of the Government to revise an order refusing to make a reference, the Government has ample and unrestricted powers under Section 10(1) of the Act which may be exercised at any time and the Court will not be competent to question it, unless the order is made for extraneous reasons. Section 10(1) confers unlimited powers on the Government. The power to make a reference can be availed of by the Government, if it is of opinion that any industrial dispute exists or is apprehended by making a reference in writing at any time. This reference can be made either on a conciliation report under Section 12(4) or directly under Section 10(1). If it is made under Section 12(5), it acts on the conciliation report and other materials that may be available to it. But when it acts under Section 10(1), the Government may make a reference when it is of the opinion that an industrial dispute exists or is apprehended, and this reference can be made at any time. The opinion of the Government is subjective and cannot be questioned by this Court. Whether an industrial dispute exists or is apprehended is a matter for the Government to determine. The Government when making an order of reference is not under an obligation to give its reasons. The fact that the Government has refused to refer under Section 12(5) will not bar the Government's right to make a reference under Section 10(1). The contention of Mr. Dolia is that the refusal of the Government to make an order of reference does not determine an industrial dispute. An industrial dispute is only settled under Section 12(3) where the parties accept the conciliation, or under Section 18(1) when an award is passed. As the industrial dispute continues, it may be that the Government on the same matter subsequently come to the conclusion that it is desirable to make a reference. In this case, it is submitted that the Government has not only the power, but a duty to refer the matter for the purpose of keeping industrial peace. The learned Counsel submitted that after the refusal of the Government to make a reference, there may be a strike and the appropriate Government may then decide to make a reference under Section 10(1), and then under Section 10(3) of the Act, prohibit the continuance of any strike or lock out in connection with such dispute which may be in existence on the date of the reference. Learned Counsel referred to the wide powers under Section 10(1) and submitted that the powers are mainly conferred for the purpose of keeping industrial peace and no restriction should be placed on it. On a reading of Section 10(1), I am satisfied thar the power of the Government is unlmited and it can refer a dispute when it is of opinion that an industrial dispute exists or is apprehended. The opinion of the Government is subjective and the question whether a dispute exists or is apprehended is also for the Government to decide. Considering the various provisions of the Act, I am satisfied that this power is exercisable at any time, that is, even after the Government had refused to make a reference at the first instance. It is unnecessary to consider the question whether the Government having once refused to make a reference and recorded its reasons under Section 12(5), it could make a fresh reference. The Government can always make a reference under Section 10(1) whatever action it might have taken under Section 12(5) earlier.
15. On behalf of the petitioners an attempt was made to show that the Government did not invoke the aid of Section 10(1), but only purported to revise an order which it passed under Section 12(5). This argument may not help the petitioners, because the Government had some material subsequent to the passing of the order under Section 12 (5), and their power to make a reference under Section 10(1) being unlimited, the reference cannot be said to be illegal.
16. It was contended on behalf of the petitioners that the Government having once refused to make a reference if it subsequently revised its views and made a reference, it would prejudice the interests of the petitioners, and that the rights of the petitioners could not be adversely affected without hearing them. It was submitted that if the Government revised its views and referred the matter to the Labour Court for adjudication, the management would be faced with payment of arrears of salary and other liabilities. The question whether the management is liable to pay or not would depend upon the subsequent adjudication by the concerned authority. So far as the Government is concerned, it does not decide the liability of the parties, but only refers the dispute for adjudication as it is enjoined to refer the matter when it is of opinion that an industrial dispute existed or is apprehended. The order being administrative in character and as the rights of parties will be only decided subsequently, the petitioners cannot complain that they have not been heard before the Government revised its views and made a reference. The submission of Mr. Dolia on the powers of the Government under Section 10 (1) of the Act will have to be accepted and the order of reference held valid. In this view of the matter, it is unnecessary to consider the facts of the various cases. The references in all these cases are held to be valid. The writ petitions are accordingly dismissed. There will be no order as to costs.