Niyaz Ahmad vs State of U.P. and Another

Paritosh K. Mukherjee and B. Dikshit, JJ.—The Petitioner Niyaz Ahmad has moved this writ petition, inter alia, challenging the order of termination dated May 19, 1988 passed by District Magistrate, Basti, which has been set out in Annexure VI to writ petition.

It appears from the said order that the order of termination was passed by invoking the provisions of Uttar Pradesh Asthayee Sarkari Sevak (Seva Samapti) Niyamawali, 1975.

Short facts stated in writ petition are as follows:

The Petitioner''s father, who was a Peon in the office of District Magistrate, Dasti, died during his service period on January 27, 1971. Since there was no other member in the family of the Petitioner, getting any income, if became difficult for him and his family to survive. The Petitioner, therefore, applied for being absorbed in the office of District Magistrate, Basti. Ultimately, the Petitioner was appointed on the post of ''Peon'' on "leave vacancy", initially on July 11, 1973 and continued to work to the full satisfaction of the officers. The Petitioner moved several applications for his services being regularised on his post but Respondent No. 2 did not pay any attention to the problems of the Petitioner. Ultimately, the Petitioner represented to the Commissioner, Gorakhpur Division, Gorakhpur who directed the Respondent No. 1 to absorb the Petitioner at a regular post because he was the senior-most candidate among all the candidates working on non-regular basis. The said direction dated November 19, 1975 is contained in Annexure I to the writ petition. According to Petitioner, despite direction issued by the Commissioner he was not absorbed by Respondent No. 2 and was compelled to continue on non-regular basis. The Petitioner made several representations before the higher authorities but could not get any result. Copy of such a representation dated May 31,1986 is contained in Annexure II to the writ petition.

It is admitted case that Petitioner continued to work as ''Peon'' from 11.7.1973 to 19.5.88. In the meantime, however, the Petitioner was appointed on the post of ''Peon'' at the place of one Umadutt Pandey, who retired from service with effect from 31.3.1986. A copy of said appointment letter has been annexed as Annexure III to the writ petition. The Petitioner continued to work on his post, but without any rhyme or reason, he was astonished to get the notice, dated May 19, 1988 which was received by him on June 10, 1988 by which his services were terminated. A copy of the impugned order of termination is set out in Annexure VI to the writ petition. It appears from the notice of termination that Petitioner''s services have been terminated by invoking the provisions of aforesaid 1975 Rules. In the notice, it was only indicated that the Petitioner''s services were no longer required by the Respondent authorities.

Sri D. K. Singh appearing for the Petitioner submits that firstly, since the Petitioner was appointed in the vacancy of one Umadutt, the Petitioner''s services should be regularised in view of Regularisation Rules, and secondly, since the Petitioner was continuing on the post of ''Peon'' from July 11, 1973 till July 5, 1986, his services cannot be terminated by passing the impugned order which cannot be treated as "termination" simpliciter.

In support of his contention, learned counsel for Petitioner has placed strong reliance on the judgment of Supreme Court in the case of The Manager, Government Branch Press and Another Vs. D.B. Belliappa, , wherein the Supreme Court has observed that services of a temporary Government servant cannot be dispensed with without invoking provisions of Article 311 of the Constitution of India.

Mr. K. M. Sahay, appearing for Respondents, referred to the judgment of Supreme Court in the case of Umesh Kumar Nagpal v. State of Haryana (1994) 2 UPLBEC 1307, wherein the Bench consisting of Hon''ble P. B. Sawant and Hon''ble N. P. Singh, JJ. observed that appointment to dependents of deceased employee in public service is an exception to general rules for appointment. Such appointment is given on humanitarian ground, in order to give source of livelihood to family of deceased. Death of an employee in harness, does not give his dependent any vested right to get employment. After going through the said judgment, we are of the view that the said judgment lays down principles for giving employment to dependent of an employee on his death in-harness but in the case before us, the Petitioner was already in employment. The said judgment has no application in the case before us, in any manner,

Mr. Sahay relying on paragraphs 3 (a) and (b) of counter affidavit submitted that Petitioner was a temporary Government servant and being a temporary Government servant, he has no right to the post and his services can be terminated in terms of 1975 Rules. It is curious enough to note that in the counter affidavit, self-conflicting stands have been taken. In paragraph 3 (a) of the counter affirmed by Uma Kant Misra, it has been asserted that:

(a) The father of the Petitioner was employed as peon in the year 1971, in the Collectorate, Basti, when the father of the Petitioner died, the Petitioner was appointed as temporary peon in the Collectorate in leave arrangement on 11.7.73.

(b) Thereafter the Petitioner continued his efforts to be appointed in place of his father who died during employment and accordingly, he gave an application to the Commissioner, Gorakhpur Division, Gorakhpur.

present question could be raised as preliminary objection before the Industrial Tribunal and could be decided therein. He further contends that Article 350 of the Constitution entitles a person to make a representation. If a representation is made, the same is to be decided in accordance with law and has been so decided and, therefore, the same cannot be questioned. He contends further that the reference made by the Minister is to be treated as a reference by the Government. He relies on the case of Samsher Singh Vs. State of Punjab and Another, . In support of his contention that a Ministers'' reference is a reference by the Government.

Now looking into the contention of Mr. Verma with regard to the question of maintainability of a second reference, I do not find any reason to accept such a contention that once a reference is refused, there cannot be any second reference. Inasmuch as making of a reference is neither a judicial action nor a quasi-judicial activity. The making of reference is purely an administrative action. Therefore, the principle of res judicata cannot be attracted.

In an administrative action, if it is brought to the notice of the authority that the same requires reconsideration, it is open to the authority to reconsider it. The same may not be termed as revision or review as is understood in judicial parlance. It is rather a reconsideration. Therefore, the contention that review or revision cannot be undertaken, as contended by Mr. Verma, cannot be accepted. But the fact remains that in order to make a reference, procedure has been laid down in Section 12 of the Industrial Disputes Act. After a dispute is raised, conciliation proceeding is to be undertaken. If the conciliation fails, the Conciliation Officer has to submit a report to the State Government u/s 12(4) of the said Act. After considering such report, if the State Government is of the opinion that a dispute exists, then it may refer in terms of Section 12(5) of the said Act. Therefore, the opinion of the State Government is based on materials placed before it including the report. Once such a report was placed and the State Government, after considering such report and the material found that no dispute exists and, therefore, refrained from making a reference.

But such a refusal does not preclude the Government to change its mind and make reference if it was satisfied that its earlier decision had been arrived at on a misapprehension of facts or that new facts have come to light or it had misunderstood the existing facts or for any other relevant consideration, it is required to reconsider. There is no doubt about the existence of the power to refer on a second consideration but upon such reconsideration, the Government can make a reference only if the dispute is an industrial one and either exists at that stage or is apprehended and the reference it makes must be with regard to that and no other industrial dispute.

I am fortified with regard to my above view by the observations made in the case of Western India Match Co. Ltd. Vs. The Western India Match Co. Workers Union and Others, . In paragraph 9 of the said judgment, while referring to the case of State of Madras Vs. C.P. Sarathy and Another, , it was held that the function of the appropriate Government u/s 10(1) of the Central Act "is an administrative function. It was so held presumably because the Government cannot go into the merits of the dispute, its function being only to refer such a dispute for adjudication....In the light of the nature of the function of the Government and the object for which the power is conferred on it, it would be difficult to hold that once the Government has refused to refer, it cannot change its mind on a reconsideration of the matter either because new facts have come to light or because it had misunderstood the existing facts or for any other relevant consideration and decide to make the reference. But where it reconsiders its earlier decision, it can make the reference only if the dispute is an industrial one and either exists at that stage or is apprehended and the reference it makes must be with regard to that and no other industrial dispute."

In the said case, while interpretatlng the phrase "at any time" occurring in Section 4(k) of the Act, the Apex Court had laid down:

From the words used in Section 4(k) of the Act, there can be no doubt that the Legislature has left the question of making or refusing to make a reference for adjudication to the discretion of the Government. But the discretion is neither unfettered nor arbitrary, for the section clearly provides that there must exist an industrial dispute as defined by the Act or such dispute must be apprehended when the Government decides to refer it for adjudication. No reference thus can be made unless at the time when the Government decides to make it an industrial dispute between the employer and his employees either exists or is apprehended. Therefore, the expression "at any time", though seemingly without any limits, is governed by the context in which it appears. Ordinarily, the question of making a reference would arise after conciliation proceedings have been gone through and the conciliation officer has made a failure report. But the Government need not wait until such a procedure has been completed. In an urgent case, it can "at any time", i.e., even when such proceedings have not begun or are still pending, decide to refer the dispute for adjudication. The expression "at any time" thus takes in such cases as where the Government decides to make a reference without waiting for conciliation proceedings to begin or to be completed. As already stated, the expression "at any time" in the context in which it is used postulates that a reference can only be made if an industrial dispute exists or is apprehended. No reference is contemplated by the section when the dispute Is not an industrial dispute, or even if it is so, it no longer exists or is not apprehended, for instance, where it is already adjudicated or in respect of which there is an agreement or a settlement between the parties or where the industry in question is no longer in existence.

While concluding on the basis of the facts of the case as was involved in the said case of Western India Match Co. Ltd. (supra), it was observed further:

In the present case though nearly four years had gone by since the earlier decision not to make the reference, if the Government was satisfied that its earlier decision had been arrived at on a misapprehension of facts, and therefore, required its reconsideration, neither its decision to do so nor its determination to make the reference can be challenged on the ground of want of power. The fact that the dispute between the concerned workman and the management had become an industrial dispute by its having been espoused by the Union since 1957 cannot be disputed. The fact that the workman was then not a member of the Union does not preclude or negative the existence of the community of interest nor can it disable the other workmen through their Union from making that dispute their own. The fact that the Government refused then to exercise its power cannot mean that the dispute had ended or was in any manner resolved.

Section 10 of the Central Act which is pari materia the same with Section 4(k) of the U.P. Industrial Disputes Act so far as the opening words are concerned, namely, "where the appropriate Government is of opinion that any industrial dispute exists or is apprehended". Therefore, the Government in order to form an opinion, there must exist sufficient material and with all such materials the opinion that has been formed which though may not encroach upon the jurisdiction of the Tribunal in deciding the disputed question of fact but still may at least show judicious formation of opinion without being mechanical. Such formation of opinion if shows patently on the face of it perverse, then in exercise of writ Jurisdiction, such order or reference can be reviewed. If formation of opinion appears to be possible on the facts and circumstances of the case, even though the High Court may be of a different opinion, the High Court cannot substitute its own views in such cases. The High Court may interfere only when on the basis of materials on record, it arrives at a finding that formation of opinion is either perverse or that the same was not based on sufficient materials and suffers from non-application of mind or has been made mechanically or on extraneous consideration.

In the case of Binny Ltd. Vs. Their Workmen, , it was held:

The order of reference must on the face of it show what impelled the Government to depart from its earlier decision and that in the absence thereof, the Court must hold that there were no reasons why such a change of opinion is without any force.

In the said case as well, the power to make a reference after having refused earlier has been recognised.

In the case of Prem Kakar Vs. State of Haryana and Another, , it has been held:

Section 12 of the Act deals with duties of Conciliation Officers. If the Conciliation Officer cannot arrive at a settlement of the dispute he sends a report to the appropriate Government. u/s 12(5) of the Act, 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, it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor.

This Court in State of Madras v. C.P. Sarathy and State of Bombay v. K.P. Krishnan held that the order of the Government acting u/s 10(1) read with Section 12(5) of the Act is an administrative order and not a judicial or a quasi-judicial one.

In the present case on the basis of the recommendation of the Minister, the Deputy Labour Commissioner had put up a different report on the basis whereof the present reference has been made. Nothing has been produced before this Court to show that upon which material the earlier reference was refused and what are the additional materials on which a different report is placed. However, the order of reference is a reasoned one where certain grounds have been made out as I understand from the translation of the said document made at the Bar. Though earlier refusal does not bind the Government to refuse to make a reference on a subsequent occasion, but on the principle that every Government action shall be presumed to have been done correctly, still the Government is required to act Judiciously. It cannot act whimsically or arbitrarily. The Government has to apply its mind and find out the necessity of making a reference. Though, however, while making a reference, the Government is not required to decide any question relating to the dispute which can only be decided by the Industrial Tribunal or the Labour Court, the scope and ambit for the consideration of the Government is limited only to the extent of finding out as to whether any dispute, an industrial one, exists at that stage with the limitations as observed hereinbefore.

When once it had refused to refer, the State Government has to be a little more careful and apply its mind while making a second reference and should have indicated as to why this time it is making such a reference. Though it may not be necessary to specify such reasons or indicate its mind in the order of reference, since the order of reference is not a quasi-judicial action, but such reasons must be apparent from the record and materials placed so as to enable the Judiciary, while reviewing such a situation, to arrive at a finding with regard to the decision of the second reference.

In the present case, nothing has been produced to show as to what necessitated making of a second reference except the report of the Deputy Labour Commissioner. Therefore, we are to fall back on the report of the Deputy Labour Commissioner for the purposes of finding out as to whether the State Government could take a decision to refer the matter after coming to a finding that a dispute exists. Now the said report discloses that though the organisation is a humanitarian organisation, it is, at the same time, a profit earning one. Nothing has been shown as to on which material, the Deputy Labour Commissioner had come to a finding that the organisation is a profit earning one.

When once a reference has been denied, in order to reopen and reconsider the question for the purpose of making a second reference, it is necessary to find out that there was some thing which was either overlooked or which was suppressed or that there was some wrong decision or some error committed on the basis of the materials or any fraud was perpetrated on it. Otherwise, there would not have been any sanctity of an administrative action as well though, however, the principle of estoppel cannot be attracted in such a case. In the present facts and circumstances of the case, there is nothing to indicate that such a situation exists.

Admittedly such a report is given by the Deputy Labour Commissioner on the basis of failure of conciliation proceedings. He should also indicate certain materials on which he had arrived at such a decision particularly on the face of the objection on that it is not a voluntary charitable organisation but a commercial establishment.

But by now, it is a settled principle of law that neither the Conciliation Officer nor the State Government decides any issue. The Deputy Labour Commissioner only reports failure of conciliation. Whether the organisation is an industry or not cannot be decided by the Deputy Labour Commissioner. The State Government also cannot decide the said question. It can only see as to whether on the face of the record, the organisation is an industry or not. But it really cannot decide the said question in case of any doubt. However, when such a reference is made, the Petitioner is also not without a remedy. He could raise the question either as a preliminary objection or be decided by the Tribunal or the Labour Court, as the case may be.

In that view of the matter, in the facts and circumstances of the present case, the order of reference does not appear to have been made upon a proper application of mind on account of lack of materials as has been urged in the present case. The facts and circumstances disclosed do not show that there was proper application of mind for the purpose of forming an opinion in the manner as observed hereinbefore. In the facts and circumstances, therefore, the matter is referred back to the Government once again to form its opinion on the basis of the materials placed before it and decide the question of reference afresh if a reference has already been made. If no reference is made, in that event, it may do so after forming its opinion in the light of the observation made hereinbefore.

In the result, the order dated 2nd January, 1992 being the order of reference is hereby set aside subject to the direction to the Government for reconsideration of the matter on the basis of the materials before it after considering the objection filed by the Petitioner and taken a fresh decision within a period of two weeks from the date a certified copy of this order is produced before it. The Petitioner is directed to produce a certified copy of this order before the Respondent No. 1 within a period of two weeks from date. In default of such production within the stipulated period, the order of reference dated 2nd January, 1992 shall stand affirmed.

With these observations, the writ petition is disposed of. There will, however, be no order as to costs.