S. Mohan, J.
1. The short but important question anises for consideration in this writ petition for mandamus, wherein a direction is sought as against the first respondent to reconsider the order in G.O. Rt. No. 1750 Labour and Employment, dated 4th August, 1977. In order to appreciate the controversy, I think it is useful to extract the relevant order of the Government, which is to the following effect:
The Government have examined the conciliation report of the Labour Officer, Salem first read above in regard to an industrial dispute raised by the Mica Farm Employees Union, Mettur Dam, Salem District against the Management of Mica Harm Chemicals Limited, Mettur Dam, Salem District over the issue regarding the non-employment of Thiru N. Marimuthu and they pass the following orders:
2. It is clear that the charges against the worker have been proved in the enquiry.
3. Hence the Government consider that there is no case to refer the issue in dispute for adjudication.
(By order of the Governor)
Secretary to Government.
2. The learned Counsel for the petitioner urges that after the introduction of Section 11-A of the Industrial Disputes Act, which came into force from 15th December, 1971, it is incumbent upon the Government to consider the quantum of punishment, otherwise it would amount to failure of exercise of jurisdiction vested in it. This is because it is a valuable right conferred upon every workman and the Labour Courts are also-empowered to find out whether punishment awarded is in proportion to the misconduct alleged against the workman concerned. It is not the contention of the petitioner that the order declining reference must specifically state so. But at least in the file there must be same indication as to the consideration under Section 11-A of the Act. In this case the two reports that are cited are : (1) Conciliation Report of the Labour Officer, dated 6th April, 1977; and (2) Report of the Commissioner of Labour, dated 18th June, 1977. The conciliation report does not make even an oblique reference to the quantum of punishment. The Labour Officer's report, as seen at page 21 of the file, throws light about the quantum of punishment. But there is no knowing, whether the Government's mind was exercised over this aspect of the matter excepting to cite in the preamble of the order of the Commissioner of Labour and certainly it cannot amount to compliance of Section 11-A of the Act. There is no other record on the file to indicate the Government's mind or part to bear upon this aspect. In support of this submission, reliance is placed on K. Ramaswamy v. Government of Tamil Nadu and Anr. : (1979)IILLJ304Mad . Thata Judgment of the learned Single Judge had been affirmed by a Division Bench of this Court as well. However there is another judgment of the same learned Single Judge reported in P. Balasubramaniam v. Government of Tamil Nadu : (1982)ILLJ447Mad , wherein, having regard to the averment of the Government in the counter-affidavit and the confidential report, it was held that there had been sufficient compliance under Section 11-A of the Act. One other important point to be noted is that in the last case cited there was not even a complaint by the workman at any point of time that the punishment was out of proportion to the misconduct alleged. In this case, not only the Government refused to consider but its specific attention was drawn by the Labour Commissioner that similar orders were passed on 6th June, 1978 as well as on 11th January, 1979. In fact by a memorandum, dated 12th September, 1978 in paragraph 8 it is stated that the punishment awarded is not in proportion to the gravity of the charges. Even assuming that originally there was no consideration, when the attention of the Government was specifically drawn it was the duty of the Government to consider whether the punishment is in proportion to the gravity of the misconduct. Having regard to the fact that there has been failure to exercise jurisdiction under Section 11-A of the Act, the order in question is liable to be set aside and there must be reconsideration of the same.
3. As against this, learned Government Pleader would state that at page 13 of the file, report of the Labour Commissioner is found, wherein, he had considered the quantum of punishment. Likewise at page 21 of the file, the report of the Labour Officer is there. He also considered the quantum of punishment. All these materials were placed before the Government. It was on a consideration of all these, the impugned order came to be pass-ed. Moreover in paragraph 16 of the counter-affidavit also it is stated that considering the gravity of the misconduct the punishment of dismissal could not be said to be excessive. Therefore, the Government rightly declined adjudication. In view of this, it is submitted that the case on hand will fall within the ratio of the ruling reported in P. Balasubramanian v. Government of Tamil Nadu and Anr. : (1982)ILLJ447Mad .
4. The learned Counsel for the management relying upon K. N. Vellayan v. Government of Tamil Nadu : (1979)IILLJ186Mad , states that there are three grounds on which the order of the Government can be set aside. Not one of these grounds is present here. Secondly it is urged that, when a similar order came for consideration before the Andhra Pradesh High Court as seen from the decision reported in D. Prasad Babu v. State of Andhra Pradesh : (1977)ILLJ147AP , there again it was found that the order of the Government was valid. Therefore it is urged that so long as there were materials before the Government, merely because there is failure to mention in the order itself, it will not vitiate the declining of reference as has been done in the impugned order.
5. I have given careful consideration to the above arguments. I am of the view that Section 11-A of the Act confers a very valuable right on the worker even though after reference when the matter goes before the Tribunal or the Labour Court and it is found that the charges are proved yet he can question the quantum of punishment. For ought we know, having regard to the strained relationship between the management and the workmen more often than not it, happens even for a trivial offence the management may impose a punishment grossly disproportionate to the misconduct. It may be a case of petty theft, or wordy abuse. For that, the management thinking that it is well justified and within its rights because it is seeking to enforce discipline against the erring workman, may inflict a punishment which may not be in proportion to the misconduct and may not get the approval at the hands of the Labour Court. In other words there cannot be a dispassionate view with regard to the inflicting of punishment unless the matter is brought before an independent body like the Labour Court or Tribunal. It is that right which has been conferred by the amendment of the Industrial Disputes Act, which came into force on 15th December, 1971. Not withstanding therefore that the misconduct alleged against the workman stands proved and the Government feel that the punishment is grossly disproportionate to the misconduct alleged against the workmen, nevertheless the Government will be duly bound to refer such a reference or declining is possible only if there is a consideration of the same. It is not to be understood that the order declining to make a reference itself must contain the statement, so long as one is able to discern the same from the files. First of all let us see the factual position in the instant case. The Commissioner of Labour at page 13 of the file in G.O. Ms. No. 1750, Labour and Employment, dated 4th August, 1977, states as follows:
I agree with the views of the Labour Officer, Salem in recommending of the issue of non-employment of Thiru K. Padmanabhan and not re-commending the issue of non-employment of Thiru N. Marimuthu for adjudication.
This was because of the earlier recording at the same page, wherein it is stated as follows:
The Labour Officer, Salem has stated that the charges framed against the worker had been proved by the management and that his dismissal is justified by the serious nature of the misconduct committed by him. In view of the above reasons, the Labour Officer, Salem has not recommended the issue of non-employment of Thiru N. Marimuthu for adjudication.
At page 21 of the file, the Labour Officer records:
In view of the reasons stated above, I feel that the dismissal of Thiru Marimuthu by the Management is justified. The union has not made out a case to refar the issue in dispute for adjudication.
6. I have already extracted the impugned order and no-where does it refer to the confidential report of the Labour Officer. It is somewhat surprising to note that both the conciliation report and the confidential report bear the same reference number and date, namely 4451 of 1976 and 6th April, 1977. The argument that the reference here is only to confidential report has to be rejected in limine because the impugned order itself says 'From the Labour Officer, Salem District, the Conciliation report' (Under Letter No. 4451 of 1976, dated 6th April, 1977). I may also add one important thing at this stage. It is not the case of the Government Pleader that there had been a noting in the file about the consideration in relation to the punishment.
7. Therefore from the file the position is dear. The confidential report was there before the Government. There is nothing to show that the Government considered the same. Of course, the Commissioner of Labour's report is there. Even there, there is not even a noting about it. It was under these circumstances in P. Balasubramaniam v. Government of Tamil Nadu : (1982)ILLJ447Mad , as well as in W. Lawrence v. Government of Tamil Nadu, by Secretary Labour and Employment, Madras-9 and Anr. Writ Petition No. 4703 of 1978, the Government came forward with a counter stating that they had considered all the relevant materials and then declined to refer. What is the position here? The Government files a counter-affidavit to the following effect at paragraphs 8 and 16:
Paragraph 8.--Per the contentions taken in paras 9, 10 and 11 of the affidavit, I state that on 10th December, 1976, the Union raised a dispute before the Labour Officer, Salem over the non-employment of Thiru Marimuthu and on the conciliation report of the Labour Officer, Salem, Government in G.O. Ms. No. 1750, dated 4th August, 1977, passed orders declining adjudication. The subsequent petitions of the Union for reconsideration of the Government Orders were also rejected by the Government. The last petition, dated 12th September, 1978 of the Union was rejected vide Government Memorandum No. 57881 |K-l|78-2, dated 11th January, 1979. The orders of the Government in their memorandum, dated 11th January, 1979 were passed after taking into account the representation of the union and also after hearing the views of both parties. It is therefore incorrect to say that the representations of the petitioner were not answered.'
'Paragraph 16.--I state that the charges levelled against the worker namely inciting workers not to do the work, refusal to do the allotted work, using disrespectful and threatening words to his superior are very grave in nature and they were proved. Considering the gravity of the proved misconduct, the punishment of dismissal could not be said to be excessive and therefore the Government rightly declined adjudication and since there is no merit in the writ petition it may be dismissed with costs.
There is not even an indirect averment that the various materials had been considered.
8. In the case arose before Padmanabhan, J., in Balasubramanian v. Government of Tamil Nadu : (1982)ILLJ447Mad , the learned Judge observed as follows at page 449:
The Labour Officer has clearly stated that the offence of theft is a serious misconduct according to the standing order of the management and that the petitioner has been properly dismissed from service. Mr, Prasad at this juncture states that the impugned order does not cite any confidential report, but has only cited the conciliation report submitted by the Labour Officer. The report being confidential would not have been cited in the impugned order. At the same time the order itself makes it clear that the Government have considered the conciliation report of the Labour Officer in regard to the dispute. In the affidavit also it is stated that all matters had been considered by the Government. In view of the fact that the confidential report was before the Government, the statement in the affidavit that the Government had considered all the materials at the time it declined to make a reference has only to be accepted. In the circumstances, I am satisfied that in this case the Government had focussed their attention on the question of the nature of the punishment.
The position as seen from the counter-affidavit of the Government, in the case on hand is very different. Again in W.P. No. 4703 of 1978, my learned brother Nainar Sundaram, J., observed as follows:
In the counter-affidavit filed on behalf of the first respondent, it has been categorically observed that the punishment in the instant case is not at all disproportionate to the charges and the Government after considering carefully all the materials placed before them, come to the conclusion that there was no case to refer the issue in dispute for adjudication. In my view, this would suffice the purpose. Significantly, there is no reply affidavit filed by the petitioner rebutting this statement put forth in the counter-affidavit on behalf of the first respondent.
One Other important thing to be noted is that by a memorandum filed on 12th September, 1978, by the union, in one paragraph it is stated as follows:
Further even the punishment awarded is not proportionate to the gravity of the offence charged against worker.
Normally at the time of passing of the impugned Government Order itself, the severity of the punishment should have been considered. Even assuming for some reasons it was not considered when the attention of the Government was specifically drawn to this there is no use of passing stereotype order as was done on 11th January, 1979, stating that the Government saw no reason to revise the order passed in the G.O. cited. At least at that stage if the Government had considered the same there would have been sufficient compliance. The reason why I am stating this aspect is in both the cases above cited, namely P. Balasubramaniam v. State of Tamil Nadu : (1982)ILLJ447Mad and W. Lawrence v. Government of Tamil Nadu, by Secretary, Labour and Employment, Madras and another W.P. No. 4703 of 1978, the complaint was that the workman did not question is the union did complain about the nature of the punishment. The factual situation is the union did complain about the severity of the punishment. It is to such a tad situation like this, the ruling of my learned brother Padmanabhan, J., in K. Ramaswamy v. Government of Tamil Nadu : (1979)IILLJ304Mad , would clearly apply. The learned Judge categorically states after referring to relevant case law that:..the Government failed to consider a very relevant fact viz., whether the proved misconduct in the instant case merited a punishment of dismissal. When once this Court is satisfied that the Government have not applied its mind to the provisions contained in Section 11-A of the Industrial Disputes Act, it will be open to this Court to quash the order of the State Government.
However, the management relied upon the ruling of a Division Bench of the Andhra Pradesh High Court reported in Prasad Balm v. State of Andhra Pradesh : (1977)ILLJ147AP , wherein the Division Bench approved of an order wherein there was no consideration under Section 11-A of the Act. But it requires to be noted that no such point was ever raised in that case. Therefore the learned Judge had no occasion to consider this aspect. In K. N. Vellayan v. Government of Tamil Nadu (1979) I L.L.J. 186, the grounds on which the order made under Section 10(1) of the Act could be interfered with are set out at page 188 in paragraph 6 of the said decision:
There cannot be any doubt that after the decision in Hachtief Gammon v. State of Orissa : (1975)IILLJ418SC , the Court will be justified in issuing writ of mandamus directing the Government to reconsider the matter if it is found : (1) that the Government has acted mala fide; (2) relevant considerations have not been taken into account; and (3) that the Government has misdirected itself in law in wholly omitting to take into account relevant considerations. The question is whether any of these grounds has been established by the appellants so as to enable them to seek writs of mandamus from this Court under Article 226.
9. This case on hand squarely fails within the third proposition stated above. The Government had wholly omitted to take into consideration the severity of punishment which it is duly bound to consider under Section 11-A of the Act. For all these reasons, the impugned order is hereby set aside and the matter is remitted to the Government for fresh consideration. Accordingly the writ petition will stand allowed. However, I make no order as to costs, since the point raised before me is purely a question of law.