1. The Order of the Government refusing to refer the issue of the non-employment of the petitioner for adjudication to the Labour Court is challenged in this writ petition. At all material times the petitioner was employed as a ledger clerk in the Administration Department of M/s Spencer & Company, Madras, for over 20 years-While so, by an order dated 30-6-1975, the management dismissed him from service for alleged theft of 6 cakes valued Rs. 6.
2. On 14-7-1975 the petitioner raised a dispute under Section 2A of the Industrial Disputes Act (hereinafter referred to as the 'Act'; before the conciliation officer. The conciliation failed and the conciliation officer duly submitted his report to the Government on 29-3-1976. This was followed by G.O. Rt. No. 1431 dated 28-6-1976 by which the Government declined to refer the disputes for adjudication. The Government found that the petitioner had been given ample opportunity in the domestic enquiry and that the guilt had been proved. Lastly, the petitioner on 12-7-1976 submitted his representations to the Governor of Tamil Nadu, finally to re-consider the earlier order dated 28-6-1976. This writ petition is filed to quash the first order of the Government dated 28-6-1976 refusing to make a reference.
3. Mr. N.G.R. Prasad on behalf of the petitioner-puts his case in a narrow compass. He submits that Section 11A. after its introduction into the Act vested powers on the Labour Court to modify the quantum of punishment if it was found that the punishment imposed by the management was very severe in cases where the Labour Court came to the conclusion that the termination of service was proper. In view of this Mr. Prasad submits that in deciding whether a dispute should be referred for adjudication to the Lobour Court or not, the Government should also bear in mind the nature of the punishment inflicted by the management in a particular case. The failure to have regard to the seriousness of the punishment inflicted compared to the trivial nature of the offence will amount to an omission of relevant considerations and such circumstances will confer jurisdiction on this Court to exercise its jurisdiction under Article 226 of the Constitution of India in interfering with the order of the Government declining to make a reference. The learned Counsel would rely upon my judgment in W.P. No. 847 of 1977 K. Ramaswamy v. Government of Tamil Nadu, Labour & Employment, Madras and Ors. dated 10-7-79 since reported in 1979 II-L.L.J. 304 wherein I have taken the view that the nature of the punishment inflicted on .1 worker will be a relevant consideration to be borne in mind by the Government at the time of making an order under Section 10(1) of the Act,
4. Secondly Mr. Prasad contends that this Court has consistently taken the view that tririal offences such as a small theft should not be visited with the severe penalty of dismissal from service. The punishment of dismissal from service in such a case has been held to be shockingly disproportionate to the offence with which the worker is charged. The Learned Counsel referred to the decisions in the Management of P. Orr & Sons (P) Ltd v. Presiding Officer, Labour Court, Madras and Anr. 1974- I L.L.J. 517 and Richardson & Cruddai (1912) Limited v. Additional Labour Court, Madras and Anr. 1974-II L.L.J. 341, as two of the instances to support his point. The learned Counsel, therefore, argued that the Government had not kept in view the position of law made clear by this Court and this itself will amount to failure to have in mind relevant consideration.
5. Mr. Sanjay Mohan on behalf of the management drew my attention to the confidential report submitted by the Labour Officer to the Government along with his report of failure of conciliation. The Labour Court has stated as follows:
The charges levelled against the workman have been proved during the domestic enquiry. The enquiry officer gave his findings stating that the workman has committed a serious crime of theft and it constitutes a serious misconduct as per the standing order of the company. Based on the finding of the enquiry officer he was dismissed from service from 30-6-1975 A, N. The petitioner has not made out a prime facie case. I do not, therefore, recommend the issue of non -employment of Thiru P. Balasubramaniam for adjudication.
6. In view of this, Mr. Sanjay Mohan contends that the nature of the charge as well as the punishment inflicted was directly in the mind of the Labour Officer when he submitted his confidential report and recommended that the issue need not be referred for adjudication to the labour Court. The impugned order clearly make out that the report of the Labour Officer was referred to at the time the order was passed Secondly, Mr. Sanjay Mohan submitted that the Petitioner had made a number of representations to the Government. In none of them had he taken a direct point that the punishment meted out to him by the management was too severe compared to the offence with which he has been charged. On an anxious consideration of the contentions on either side, 1 feel that this is not a case where the powers of this Court under Article 226 of the Constitution can be used to interfere with the impugned order of the Government. I have already referred to the confidential report of the Labour Officer. 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. It is also significant to state in this connection that on the petitioner's part he had never questioned the severity of the punishment in any of his representations. Mr. Prasad would contend that the petitioner had stated that the punishment has been inflicted as a matter of victimisation and that in the language known to the Labour Law, the word ''victimisation' would include a case where a worker has been punished out of proportion to the offence with which he has been charged. It is unnecessary for me to rest my decision on this aspect, since I have already found that the Government had applied their mind to the consideration of the severity of the punishment.
7. Mr. Sanjay Mohan attempted to canvass the opinion expressed by me in W. P. No 847 of 1977 that the Government is bound to consider, at the time of passing an order under Section 10(1) read with Section 12(5) of the Act, the nature of the punishment inflicted by the management. The learned Counsel would eloquently urge that the provisions under Section 11A can only be invoked after an order of reference is made by the Government and it does not come into the picture at all prior to the passing of an order of reference. For this purpose the Learned Counsel would rely upon a sentence used by Vaidyalingam, J., in the Workmen of Firestone Tyres and Rubber Co. v. Management 1973-I L.L.J. 278 In paragraph 31, which is as follows;
To invoke Section 11A, it is necessary that an Industrial Dispute of the type mentioned therein should have been referred to an Industrial Tribunal for adjudication.
In view of this observation of the Supreme Court Mr. Sanjay Mohan would contend that the question of the Government having in mind the matters contemplated under Section 11A does not arise at all for consideration. Therefore, he would urge my reconsidering my opinion given in W. P. No. 847 of 1977. Apart from pointing out this particular sentence in the workmen of Firestone Tyres and Rubber Co. v. Management 1973-I L.L.J. 278 the learned Counsel has not been able to place any direct authority to persuade me to reconsider my earlier decision in W.P. No. 847 of 1977 K. Ramaswamy V. Govt. of Tamil Nadu Labour and Employment Department v. Management of Ammapet Weavers Co-operative Society, Salem-2. The question whether the Government, before passing an order under Section 10(1) read with Section 12(5) of the Act, should have in mind the severity of the punishment inflicted by the management was not considered by the Supreme Court in that case. The sentence referred to cannot even be taken as obitor dictum by the Supreme Court to support the proposition that the Government need not consider the severity of punishment at the time of passing an order under Section 10(1) read with Section 12(5) of the Act. In my earlier decision, I have already referred to the Kerala cases and also a Gujarat case and I have followed them. Inasmuch as no convincing reasons have been placed before me and no direct authority has also been cited before me, I do not consider that my earlier decision requires re-consideration.
8. In the circumstances, the writ petition fails and is dismissed, but without costs.