1. The petitioner applied under Article 226 of the Constitution for the issue of a writ of certiorari to set aside the Order of the Government Ms. No. 1086 dated 26th April, 1954.
2. The petitioner is a firm, Radhakrishna Mills (Pollachi) Ltd., at Pollachi. The fourth respondent, Ponnai Goundar, was one of the employees of the mills. On 5th October, 1953, the management framed some charges against the fourth respondent. After an enquiry on 7th October, 1953, the fourth respondent was suspended from his office till 15th October, 1953, as a punishment. He resumed office on 16th October, 1953. The fourth respondent alleged that it was a case of victimisation and that he had been unjustly punished. But on 21st October, 1953, he withdrew those allegations and expressed his regret to the management by a letter. On 23rd October, 1953, the fourth respondent revived the allegations of victimisation that he had made and realised from the position he had taken up in the letter said to have been sent by him on 21st October, 1953. Thereafter he abstained from work. The management terminated his services on 26th October, 1953, for staying away from work. The workers in the mills espoused the cause of the fourth respondent. Conciliation proceedings under Section 12 of the Industrial Disputes Act, Act XIV of 1947 ensued and the labour officer who was the conciliation officer, reported under Section 12(4) of the Act that he had not been able to effect a settlement and he recommended that the industrial disputes be referred for adjudication under Section 10(1) of the Act. The Government did not accept that recommendation. On 27th February, 1954, obviously in exercise of the powers vested in the Government under Section 12(5) of the Act, the Government informed the parties that the Government considered that there was no case for adjudication. On 30th March, 1954, the Government received a communication emanating from the Communist Legislature Party at Madras, which itself purported to be a representation on behalf of the workers of the petitioner mills. On 26th April, 1954, the Government directed under Section 10(1)(c) of the Industrial Disputes Act that the industrial disputes specified in the schedule to the order be referred for adjudication to the Industrial Tribunal at Coimbatore. The Industrial disputes specified were (1) whether the dismissal of Ponnai Gounder, son of Chellappa Gounder was justified, and (2) if not, whether he was entitled to reinstatement or compensation or any other relief. It was the validity of this order dated 26th April, 1954, that the petitioner challenged.
3. The validity of the order of reference under Section 10(1)(c) dated 26th April, 1954, was challenged by the petitioner on the following grounds: (1) the Government had no jurisdiction to review its earlier order dated 27th February, 1954, passed under Section 12(5) of the Act, (2) even if the Government had jurisdiction the exercise of that jurisdiction was vitiated by failure to give notice to the employer before the order dated 26th April, 1954, was passed, and (3) a dispute between an individual worker and the management was not an industrial dispute as defined by Section 2(k) of the Act.
4. Learned Counsel for the third respondent, the workers' union, contended that none of the questions raised by the learned Counsel for the petitioner could be investigated in these proceedings as the petitioner was not entitled to a writ of certiorari to set aside the order complained against. Learned Counsel for the third respondent urged that the reference under Section 10(1)(c) of the Act constituted an administrative act of the Government to correct which no writ of certiorari could issue. That contention is well-founded. In State of Madras v. C.P. Sarathy : (1953)ILLJ174SC , Patanjali Sastri, C.J., observed at page 218.
It must be remembered that in making a reference under section.10(i) 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 not 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. No doubt it will be open to a party seeking to impugn the resulting award to show that what was referred by the Government was not an industrial dispute within the meaning of the Act and that therefore the Tribunal had no jurisdiction to make the award. 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.
5. The petitioner filed C.M.P. No. 2385 of 1955 to amend the prayer in the petition W.P. No. 537 of 1954, as originally filed. The petitioner prayed for the issue of a writ of prohibition against the Industrial Tribunal. Such a writ could issue if it is established that the Tribunal had no jurisdiction to proceed with the adjudication of the dispute referred to it. In the circumstances of this case no question of excess of jurisdiction arises for consideration.
6. If the dispute was not an industrial dispute at all as defined by Section 2(k) of the Act the Tribunal would have no jurisdiction despite the reference under Section 10(1)(c) of the Act. The contention of the learned Counsel for the petitioner was that the dispute was one between the fourth respondent, one of the workers, and the management and that it was not an industrial dispute. That contention must be negatived. It is true that the industrial dispute originated with a claim of the fourth respondent against the management that he had been victimised and wrongfully dismissed. As pointed out by the learned Chief Justice at page 217 in U.C. Bank Ltd., v. Commissioner of Labour (1951) 1 M.L.J. 213.
It may be that the dismissal of even one workman can become the subject of an industrial dispute, but then it is no longer an individual dispute between the dismissed workman and the employer only; it becomes a dispute between the workman on the one hand and the employer on the other. Such a dispute, it may be called a collective dispute....
7. The dispute referred for adjudication by the order dated 26th April, 1954, was an industrial dispute as defined by Section 2(k) of the Act.
8.The next question is: was the reference under Section 10(1)(c) valid. The extreme contention, that the validity of what was an administrative act, done no doubt in the exercise of a statutory power conferred by the Government under Section 10(1)(c), could not be questioned even for deciding whether a writ of prohibition could issue to the Industrial Tribunal, has to be rejected. What I have to consider is whether the Tribunal had jurisdiction to adjudicate the industrial dispute referred to it. If it had no jurisdiction a writ of prohibition could issue even as a writ of certiorari could issue to quash an award of the Tribunal if it had acted without jurisdiction. Absence of an industrial dispute would obviously be sufficient to negative jurisdiction. The validity of the order of reference is open to examination by this Court to decide whether the Tribunal had jurisdiction. There was an industrial dispute in this case, as I have already pointed out.
9. Learned Counsel for the third respondent next contended that the examination of the validity of the reference should be limited to verifying whether there was an industrial dispute and the Court had no jurisdiction to go into the validity of an administrative act for any other purpose. It is not necessary for me to pronounce any opinion on the soundness or otherwise of this contention to dispose of the questions at issue in these proceedings.
10. Even, if on the termination of conciliation proceedings under Section 12 of the Act, the Government have to decide under Section 12(5) of the Act whether a reference is necessary, that reference has to be only under Section 10(1) of the Act. In this case it was under Section 10(1)(c) of the Act. Before making a reference under Section 10(1)(c) the Government have to be satisfied that an industrial dispute existed or was apprehended. In this case the industrial dispute did exist. Even if an industrial dispute does exist or is apprehended, it is still left to the discretion of the Government to refer the dispute for adjudication under Section 10(i) of the Act. It has therefore to be satisfied that it is expedient to refer the industrial dispute for adjudication. Of both factors, the factual existence of the industrial dispute and of the expediency to refer that industrial dispute for adjudication, the Government is the sole Judge. In this case that an industrial dispute has existed all along cannot be doubted. On 27th February, 1954, the Government decided it was not expedient to refer that dispute for adjudication under Section 10(I) of the Act. The circumstances under which they decided on 26th April, 1954, that it was necessary to refer that dispute for adjudication, were set out in paragraph 4 of the counter the Government filed.
Subsequently representation was received on behalf of the workers dated 30th March, 1954, requesting the Government to refer the matter for adjudication as the Government's conclusion based on an alleged false allegation of the worker without going into the question whether the dismissal of the worker was just or not was incorrect, that evidence had to be taken on that question in an enquiry. The Government considered the matter afresh and by their order Ms. No. 1086 dated 26th April, 1954, in exercise of the power under Section 10(1)(c) of the Industrial Disputes Act, 1947 (Act XIV of 1947) referred the question to the second respondent as to whether the dismissal of the worker was justified for adjudication.
It was a representation on behalf of the workers. Their own union had apparently not been recognised by the management. That was how the representation was viewed, though it emanated from a party which had nothing to do either with the management or with the worker or with the workers' union. A decision under Section 12(5) of the Act is an administrative act and not a judicial or quasi-judicial adjudication. Such a decision has not been invested with any statutory finality by any provision of the Act. The right of the Government, very often it is a duty is not exhausted by the exercise of the power vested in it by Section 12(5) of the Act. It could re-examine the question of expediency afresh. The industrial dispute was still there and unresolved. In this case there was the supervening factor. A fresh representation was made on behalf of the workers that the basis on which the Government issued the order dated 27th February, 1934, required further examination, i.e., whether the letter said to have been sent by Ponnai Gounder was a genuine letter and really represented what he meant. There had been no judicial determination of that question at any time. There was no need to, an all acts culminating with the reference to Section 10(1) were administrative in their scope. It is therefore not a question of a review of a judicial determination. Therefore no question of jurisdiction of the Government as such arises for consideration. That the Government acted bona fide throughout was never questioned. In my opinion the fact that the Government in effect reversed their earlier view on the question of expediency of a reference under Section 10(1)(c) of the Act did not invalidate the reference. The jurisdiction of the Tribunal to adjudicate on the Industrial dispute referred to it by that order of reference therefore remains unaffected. Since the Tribunal had jurisdiction to proceed with the adjudication no writ of prohibition can issue.
11. Learned Counsel for the petitioner pointed out that no notice had been given to the management before the order dated 26th April, 1954, was passed. I have already pointed out that the issue of that order itself was an administrative act. It did not amount to a judicial or quasi-judicial determination of the rights of any of the parties. Therefore failure to give notice to the management did not vitiate the exercise of the statutory power vested in the Government by Section 10(1)(c) of the Act.
12. The petition fails and is dismissed. No order as to costs.