Government of Madras vs Workmen of South India, Saiva Siddhanta Works Publishing Society

S. Ramachandra Iyer, C.J.—Muthiah Pillai. who was employed by the South India Saiva Sidhhanta Works Publishing Society at Tirunelveli,

was dismissed from service on 10-12-1959 on the ground that he was responsible for an article that appeared in an issue of ""Indunesan"" dated 24-

10-1958 making certain allegations of malpractices committed by the directors of the society. No enquiry was held by the management to find out

whether the employee was guilty of the conduct attributed to him and consequently there was no opportunity for the latter to show that the charge

or suspicion against him was ill-founded. The Madras Press Labour Union, of which Muthiah Pillai was a member, took up ''as cause and it raised

an industrial dispute.

Conciliation proceedings which were initiated In consequence thereof, proved ineffective. The Labour Officer, who was entrusted with the

conciliation work, while reporting his failure, intimated to the Government that the management was neither willing to reinstate the employee nor

terminate his services by giving one month''s notice, on the footing that the previous dismissal was invalid. ''The Government, on a consideration of

the report, found that a reference of the dispute to the labour"" court was not called for. By its order dated 14-9- J959 the Government stated:

On a careful examination of the case the Government find that the termination of services of K. P. Muthiah Pillai is justified. The Union may,

therefore, advise the worker to accept the Bum of Rs. 1034-47 offered of the management towards notice pay and compensation. There is no

case for adjudication.

The Labour Union at first applied to this court for the issue of a writ of certiorari, evidently on a misapprehension as to the nature of the order of

the Government. But, later, it converted the application into one for the issue of a writ of mandamus |o the Government directing it to refer the

dispute regarding the dismissal of Muthiah Pillai for adjudication by the labour court. Thus, the dispute, though it originated in the grievance of a

single workman had, by reason of the espousal of his cause by the Union, gained support from the other employees of the same establishment who

were members of that Union.

Veeraswami J. before whom the application for the issue of writ came up for hearing, held that the order of the Government was bad in two

respects, namely

That it amounted to an adjudication of the dispute on its merits, which -the Government had no jurisdiction to do; and

that as no reasons had been given by the Government for its conclusion, its order contravened Section 12(5) of the Industrial Disputes Act.

Conformably to the view thus expressed, a writ of mandamus was issued directing the Government to consider afresh whether a reference of the

dispute to the appropriate authority under the Act is called for. The judgment in the case is reported as Workmen of the South India Saiva

Sidhhanta Works Publishing Society, Tirunelveli Ltd. Vs. Government of Madras, .

The State Government have now appealed against the judgment.

Before taking up the substantial question raised in the appeal, we shall have first to deal with an objection raised by the learned Advocate

General appearing for the Government - an objection which does not appear to have been taken before the learned Judge - regarding the

propriety of issuing a writ of mandamus when the employer has not been made a party to the proceedings before this court. There is a

misapprehension underlying the objection. The direction issued by the learned judge is one that requires the Government to do its duty, as the

purported order of the Government in his view is non est in law. It is now well-settled that a writ of mandamus can issue even with respect to

administrative acts, the only requirement being that there should exist a duty, public or quasi-public, in the body to whom the writ is addressed to

perform that duty. It; cannot be disputed that a writ of mandamus will lie against the Government, if it refused to refer an industrial dispute for

adjudication u/s 10(1) of the Industrial Disputes Act, if such refusal is found to be either not bona fide or based on considerations of wholly

irrelevant facts and circumstances.

Again, where the Government does not record and communicate to the parties its reasons for not making a reference u/s 12(5), it will be open to

the aggrieved party to apply to this court under Article 226 of the Constitution for the issue of a writ of mandamus to direct the Government to

perform its duly. This has been authoritatively laid down in the decision of the Supreme Court in State of Bombay Vs. K.P. Krishnan and Others, .

The art which the Government will, in such a case, be directed to do is neither judicial nor quasi-judicial. It would, therefore, follow that in such

cases the Government would not be bound to hear the parties before making a reference u/s 12(5) read with Section 10(1) of the Industrial

Disputes Act.

The nature and scope of the Government''s power in similar cases arose for consideration before the Privy Council recently in Beetham v. Trinidad

Cement Ltd., 1960 I All ER 274, where Lord Denning observed -

It was said that the Governor was, under the Ordinance, under a duty to ''inquire into the causes and circumstances of the dispute'' before he

appointed the board of inquiry; and that he had not enquired as he ought to have done. He ought, it was said, to have given a fair opportunity to

both parties to make representations before he acted and the familiar passages in Local Govt. Board v. Arlidge, 1915 A. C. 120 were cited. Their

Lordships reject this contention. True it is that the Governor had to inquire and, no doubt, he did - in his administrative capacity - but he had not to

conduct anything in the nature of a judicial or quasi-judicial inquiry.

It would follow from the principle implicit in the observations extracted above, that there are no two parties before the Government when it mates

its mind either to refer or not to refer for adjudication an industrial dispute by the appropriate tribunal and there can be no question of affecting the

right of any party by such an administrative decision on the part of the Government.

Therefore, it will be unnecessary for any aggrieved person moving this court for the issue of a writ of mandamus to direct the appropriate

Government to refer an industrial dispute u/s 10(1) of the Act, to implead as a party there* to the other party to the dispute, e.g., the management.

The question before the superior Court in such a case will be, whether to issue a writ or not, and on that question the only person interested will be

the Government. We cannot, therefore, accept the contention urged on behalf of the Government that the learned Judge had no jurisdiction to issue

the writ of mandamus without giving an opportunity to the employer to show cause against its issue.

On the merits of the case, the fact that the Government had not recorded reasons for its refusal to make a reference of the industrial dispute, will

be sufficient to support the writ issued by the learned Judge. But, out of deference to the arguments of the learned counsel on either side, we feel

bound to deal with the larger question as to whether it would be competent for the Government to come to a conclusion on the merits of the

dispute before making up its mind either to refer to or not to refer an industrial dispute for adjudication.

The view taken by Veeraswami J. in the judgment under appeal has been reiterated by the learned Judge in a subsequent decision in The Salem

District Textile Workers Union Vs. The State of Madras and Another, where it was held that it would not be competent to the Government to

determine a disputed question of fact and on that basis come to a conclusion that there was no case for adjudication by the tribunal functioning

under the Act.

The opinion thus expressed has been challenged by the learned Advocate General as erroneous, the reason being that it will be necessary for the

Government in certain cases to consider the relevant matters before deciding the propriety of making a reference u/s 10(i) or 12(5) of the Act.

For a due consideration of the question raised, it is necessary to refer to the relevant provisions of the Act, namely, Sections 10(1) and 12(5);

the former enables the appropriate Government to refer an industrial dispute for adjudication by the Tribunal appointed under the Act.

But before we refer to them we would like to point out that the duty performed by the Government in making a reference or in refusing to make

a reference, of an industrial dispute for an adjudication, can in no way be regarded as a ""decision"" if that word is taken to import an idea of judicial

adjudication. What the Government does in such cases, and this we have pointed out earlier, is purely an administrative duty not involving a

determination of the rights of parties to the dispute. Section 10(1), which enables the Government to refer a dispute for adjudication by the tribunal

referred to in the section, speaks of the Government being of opinion that ""any industrial dispute exists or is apprehended"". That implies that the

Government has to arrive at a conclusion, subjectively as it has been held as to whether an industrial dispute exists or is apprehended. Even if that

condition were satisfied, the Government will still have to consider whether it is expedient to refer the dispute for adjudication, Section 12(5),

which occurs in the chapter dealing with the procedure, powers and duties of the authorities functioning under the Act, deals with a case where

efforts at conciliation of an industrial dispute have proved futile and a report of the attempts made by the conciliator is before the Government. In

such a case, the Government will have to consider the report, and if it is satisfied that there is a case for reference, it should make such a reference.

Although the language of Section 12(5) refers to the satisfaction of the Government on the basis of the report, and, as we shall show presently,

after tailing other relevant matters into consideration, the power vested in the Government of referring the dispute, for adjudication has to be

exercised only u/s 10(1) of the Act. In State of Bombay Vs. K.P. Krishnan and Others, the Supreme Court has held that Section 12(5) does not

by itself, and independently of Section 10(1), confer a power on the appropriate Government to make a reference. If therefore, a reference has

pot to be made u/s 10(1), it will be the duty of the Government first to satisfy itself, on the facts and circumstances brought to its notice, that an

industrial dispute exists or is apprehended,'' in relation to an industry.

In State of Madras Vs. C.P. Sarathy and Another, , Patanjali Sastri C. J. observed:

But it must be remembered that in making a reference under S. to (i) the Government is doing an administrative act and the fact that it has 10 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 i� 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.

From this, it will be evident that an enquiry inter the facts by the Government, so long as it is art enquiry made for the purpose of finding out

whether an industrial dispute exists or whether there is a reasonable apprehension thereof, and also for the purpose of deciding as to the

expediency of making a reference, is not shut out.

Now, an industrial dispute, according to the Act, (so far as it is relevant for the present case) will be one between employers and workmen, which,

is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person. An individual

dispute will, if it becomes a collective dispute between the workers on the one hand and the management on the other, be also an industrial dispute.

Per contra, an individual dispute which has not become a collective dispute, cannot be regarded in any sense, as an industrial dispute. Again, from

the definition of the term ""industrial dispute"" and from the provisions of Section 10(1) it will be clear that it is not necessary for the existence of an

industrial dispute that the claim, on behalf of the labour should necessarily be a lawful one. The essential requirement is that such claims should be

on behalf of the workmen generally.

In Bird v. O''Neal, 1960 3 All E R 254, the Privy Council held that the lawful dismissal of a workman can properly form the subject-matter of a

trade dispute. What the Government, therefore, will be concerned with, before making up its mind to refer an industrial dispute for adjudication by

the tribunal, will be whether a collective dispute between the labour and the management exists or is apprehended, and secondly, whether it is

expedient to refer such a dispute for adjudication, and not whether the impugned action taken by the management, which gave rise to the dispute,

is lawful or unlawful.

The considerations that should weigh with the Government before it decides to make a reference or refuse one, have been referred in the leading

case of State of Bombay Vs. K.P. Krishnan and Others, , Gajendragadkar J, observed:

The problem which the Government has to consider while acting u/s 12(5)(a) is whether there is a case for reference. This expression means that

Government must first consider whether a prima facie case for reference has been made on .the merits. If the Government comes to the conclusion

that a prima facie case for reference has been made, then it would be open to the Government also to consider whether there are any other

relevant or material facts which, would justify its refusal to make a reference. The question as to whether a case for reference has been made out

can be answered in the light of all the relevant circumstances which would have a bearing ''on the merits of a case'' as well as on the incidental

question as to whether a reference should nevertheless be made or not. A discretion to consider all relevant facts which is conferred on the

Government by Section 10(1) could be exercised by the Government even in dealing with cases under 5. 12 (5) provided of course the said

discretion is exercised bona fide, its final decision is based on a consideration of relevant facts and circumstances and the second part of Section

12(5) is complied with (Italics are (here in '' '') ours).

Again

Though considerations of expediency cannot be excluded when the Government considers whether or not it should exercise its power, to make a

reference, it would not be open to the Government to introduce and rely upon wholly irrelevant and extraneous considerations under the guise of

expediency. It may, for instance, be 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 come to the conclusion that the dispute suffers from infirmities of this character, it may refuse to make the reference.

It will be clear from the foregoing passages that the Government cannot avoid considering the merits of the case and other relevant circumstances

adverted to above, for the limited purpose o� making up its mind either to refer the case for adjudication or not.

In the case just now cited if was observed:

It would be open to the Government to consider other relevant facts which may come to its knowledge or which may be brought to its notice and

it is in the light of all these facts it has to come to its decision whether a reference should be made or not.

The question whether there is a prima facie case for reference, which it will be the duty of the Government to consider in a case coming either u/s

10(1) or 12(5) of the Act, will necessarily involve going to some extent at least into the merits of the case.

It will be useful to refer, in this context to a few cases arising u/s 33 of the Industrial Disputes Act where, while the industrial dispute is pending

adjudication, the management can, with the express permission in writing from the Tribunal, alter the conditions of service or punish a workman

protected under the provisions of that section. In these cases, the Tribunal which is to give the permission is required to consider whether the

charge against the delinquent workman is prima facie proved or not. It has been held that such prima facie consideration of the merits of the case is

not tantamount to an adjudication on the merits of the case. Therefore, an authority which for the purpose of discharging its duty goes into the

matter prima facie cannot be held to have decided the! matter itself.

In Atherton West and Co. Ltd. Vs. Suti Mill Mazdoor Union and Others, it has been held that permission given under a provision similar to that

in Section 33 referred to above, would have the effect of merely removing the ban on the right of the employer to dismiss (the workman and

cannot by itself validate a disciplinary action, if otherwise, it is, invalid. Again the power conferred u/s 33 has been held in the The Automobile

Products of India Ltd. Vs. Rukmaji Bala and Others, as not amounting to the same thing as the power to adjudicate upon the dispute, but it is as

only to decide as to whether permission should be given or not. Under the provision, the only thing that the tribunal has to consider is, whether a

Prima facie case has been made out by the employer for lifting the ban imposed by the section. If, therefore, on the materials before it, the tribunal

is satisfied that there has been 0, fair enquiry in the circumstances of the case and that the management has bona fide come to the conclusion that

the worker was guilty of misconduct with which ha had been charged, a prima facie case should be held to have been made out, and the tribunal

would be bound to permit the employer to punish the workman - Vide Lakshmi Devi Sugar Mills Ltd. Ramsarup, 82).

It will follow that, on the principle of the decisions referred to above, in considering whether there is a prima facie case or not, the Government

will have to go into the question of the merits of a case to some extent. But that does not, and indeed cannot, go to the extent of an adjudication on

the merits of the case. Once the Government comes to the conclusion that there is a primam facie case, it will be its duty to refer the dispute, unless

it considers that it is inexpedient to do so. For example, even though an industrial dispute exists or is apprehended, it may be that the Government

considers that the claim is a stale or a frivolous one; then it will be entitled, in -the exercise of its discretion, to decline to refer the matter for

adjudication. But where the case arises after the failure of the conciliation proceedings, the position will also be the same as reference even in such

cases will have to be u/s 10(1) only. I There will, however, be this difference, namely, that the Government will be bound to give reasons for its

conclusion. These reasons can always be looked into by the .superior Court for the purpose of satisfying itself whether the Government acted in

the due exercise of its powers. In either case, it will be the duty of the Government both in the interests of the industry as a whole and also in the

due performance of its duties under the statute, to consider prima facie whether there is a case for reference to the industrial tribunal.

Sri V. G. Row on behalf of the Union has contended that, normally speaking, the Government would be bound to refer any dispute brought

before it, in respect of which such a reference is sought, unless there be some specific reason for not so referring. We are of opinion that the

contention so stated is too broad to be accepted. It may be that where an industrial dispute arises in a public utility service concern, different

considerations might arise and the Government might, while in referring such disputes for adjudication, adopt that rule. But whether it be public

utility industrial otherwise, the Government will have to consider the conflicting principles of securing an industrial peace and also helping the

industrial economy and development. The mere fact that a dispute has been raised by all the workmen cannot mean that the Government should

necessarily refer the dispute; u/s 10 it has got. to exercise a. discretion before it decides to do so.

The problem may not present much difficulty when the industrial dispute relates to the workers or a section of workers generally. There, unless

the dispute is either stale or frivolous, the Government should ordinarily leave it to the tribunal to adjudicate upon it. But even there, cases may

arise where industrial disputes are raised not perhaps with the object of bettering the conditions of the labour but on account of the rivalries

between various unions who claim membership in an industrial establishment.

Where, however, the industrial dispute is the outcome of an. individual dispute, the case will require greater scrutiny by the Government. In

such a case, the fact that a union sponsors an individual dispute cannot mean that the Government should, as a matter of course, refer such a

dispute u/s 10(x). To hold otherwise would be to render futile the discretion vested in the Government under that provision. Let us make cleat what

we mean by an illustration. Suppose, a dispute arises as a result of the dismissal of a work 111 an in an industrial establishment by reason of

disciplinary action having been taken against him for misconduct. If there had been a proper enquiry in that matter by the management, or if for

example, the workman had been convicted by the ordinary Courts of the land for the misconduct alleged, the Government will be justified in such a

case to come to the conclusion that there is no prima facie case for reference. It cannot be said in such a case that the Government cannot look

into the merits of the case. Again, it is well settled, that an Industrial Court cannot and does not, as a Court of appeal capable of substituting (sic)

its judgment for that of the management in such disciplinary matters except where there is want of good faith on the part of the management, when

there is victimization or unfair labour practice or the management has been guilty of a basic error or violation of a principle 01 natural justice, or on

the materials the finding is completely baseless 01 perverse.

These principles have been laid down in Indian Iron and Steel Co., Ltd. and Another Vs. Their Workmen, and have been reaffirmed later in

Mckenzie and Co. Ltd. Vs. Its Workmen and Others, and. again in Management of Balipara Tea Estate Vs. Its workmen, . In the last mentioned

case it was held that the misconduct for which the workman'' was dismissed if it had been done after the enquiry need not be proved to the

satisfaction of the tribunal before whom the matter comes rip on reference in order to sustain the order. But the rule laid in the above cases will

apply only when, there had been a proper enquiry by the management; it however, there had been no enquiry by the management, the issue about

the merits of the impugned order of dismissal would be at large before the Tribunal and it would be competent to take evidence and decide for

itself, whether the misconduct alleged has been proved and the punishment can be sustained; vide The Punjab National Bank Ltd. Vs. Its

Workmen, : Except in the cases referred to above, it will not be competent for the tribunal, to which reference has been made, to depreciate the

evidence; see Doom Dooma Tea Co. Ltd. v. Assam Chah Karmachari Sangha, 1960 2 Lab V J 56 (SC). In those cases, the scope of the powers

of the Industrial Tribunal in respect of a disputed action taken by the management against its employees being limited, it will be for the Government

to see whether the order of the management is prima facie bad or one that could be assailed for one or more reasons pointed out above.

An industrial dispute may originate due to a variety of reasons. But its essential characteristic will always be a difference between the employer

land the employees in an industry in relation to a claim generally on behalf of the latter, or of a section of the workers or even of one person. In R.

v. Industrial Dispute Tribunal, 1957 2 All ER 776 Devlin, J. observed:

There are all sorts of industrial disputes which arise out of a difference between the employer and the employees in factory in relation to a claim

made merely by one man, cases for example, where one man is unfairly victimised, or is unfairly victimised in the estimation of his fellow

employees, and his fellow employees may made themselves parties to the dispute because they may say ''Unless this man is treated in the way in

which we think that he ought to be treated, there is going to be trouble.'' Or there may be other reasons which cause men to be interested and to

wish to make themselves parties to a dispute which concerns only the claim of one man. Without being materially affected, other people may feel

that their prospects of promotion are injured generally. They may be interested in the principle of the thing. They may say ''If a, person of the length

of service of Mr. Carreck is not promoted, what is going 10 happen to us when we get to that stage?'' Or there may be, on the facts which 1 have

recounted, some general principle involved in the (''dispute on which this particular claim happens to be founded which is .selected as a test action,

the general principle here being whether it is right or wrong for the applicants to adopt the attitude that they will nor. discuss individual claims with

the trade union but will discuss them only with the individual) concerned."" (Italics here into '' '') are ours.

What have been stated above are undoubtedly matters which the Government can legitimately (take into account while coming to a conclusion

is to the expediency of referring an industrial dispute. It can therefore be broadly stated that it is not every individual dispute which has been.

sponsored by a trade union or by an appreciable body of workers that should be referred for adjudication; the matter has to be looked into and if

the Government finds that a question of principle; is involved, in the matter of the grievance of the individual worker, then all the other workers who

sponsored his case may be regarded as parties to the dispute, though they might not be directly affected by the particular action taken by the

management in such a case. That case will undoubtedly be a proper one for adjudication by a tribunal. It has been observed by Delvin, J. in the

case to which we have made reference earlier):

If the union chooses to make the matter a union issue, if it chooses to take up the cudgels on behalf of its member and thereby to become

belligerent in the matter, it is a dispute to which more than one workman is a party. No doubt, the union, will not do it unless there is a matter of

some general principle involved; but if the union chooses to make it a general issue, it becomes a dispute to which the whole body of workmen or

group are made parties.

Where, therefore, the union of workers takes up an individual dispute, no principle being involved therein, it will be for the Government to consider

he merits of the case and decide whether it should refer the matter for adjudication u/s 10(1) or 12(5). If, on the other hand, a question of principle

is involved, like victimisation, unfair labour practice or the punishment of a worker without even an enquiry, it will be the duty of.

Government to act under those provisions. Such derisions as the Government arrives at in these cases are not decisions in the dispute but only a

decision as to whether the machinery created by the statute should be put into action with a view to solve the dispute. In the present case, there has

been no enquiry by the management before terminating the services of Muthiah Pillai. That case would fall within the principle to which we have

made reference and the Government will be bound to refer. Although the view taken by the learned Judge in the case now under appeal well as in

The Salem District Textile Workers Union Vs. The State of Madras and Another, has been rather broadly expressed, we are of opinion, that the

conclusion reached by the learned Judge in the present case cannot be assailed.

The appeal fails and will be dismissed with costs.