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Judgment
Subhash B. Adi, J.—This writ petition is directed against the endorsement dated 25.01.2008 issued by respondent No. 1, refusing to refer the dispute.
The learned Counsel for the petitioner submitted a dispute was referred to the conciliator. Before the conciliation officer t statement and counter statement were filed. On the basis of the said statement and rival contentions, the conciliation officer submitted his failure report dated 01.12.2007 to the Government. The Government by its impugned endorsement, observed that the petitioner is a Junior Officer and as such, he is not a workman arid refused to refer the matter.
Learned Counsel for the petitioner submitted that, before the Conciliation Officer, the 3rd respondent/Management filed the statement of objections and the Conciliation Officer considering the objections and the claim petition found that there is a serious dispute between the parties and reported the failure of conciliation. He submitted that, from the statement and counter statement fifed before the Conciliation Officer, it shows that, there is a serious dispute between the parties as regards to, ''whether the petitioner is a workman or not''. The workman has relied on several documents and the Management has also relied on several documents. When there is voluminous documents which requires an proper adjudication, it is not for the Government, to decide the dispute, it has to be only done by the Industrial Tribunal or the Labour Court. He referred to Section 12 Sub-section (5) of the Industrial Dispute Act, which reads as under:
If an a consideration of the report referred, to in Sub-section (4), the appropriate Government is satisfied that there is a case pr reference to a Board, Labour Court, Tribunal or National Tribunal, it may make, such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the patties concerned its reasons therefor.
He farther submitted that, while exercising the powers u/s 12 Sub-section 5 of the Industrial Disputes Act, the Government has to record the reasons for its conclusion and to communicate the same, The Government u/s 12 Sub-section 5 has to give reasons for its conclusion. He submitted that, if it is an administrative order, it has to be speaking order and it cannot, in one word or one sentence refuses to refer the dispute. In thin regard, he relied on a decision of the Apex Court reported in Sharad Kumar Vs. Govt. of NCT of Delhi and Others, and submitted that in identical circumstances, the Apex Court at Para 27 has observed that:
Testing the case in hand on the touchstone of me principles laid down in the decided oases we have no hesitation to hold that the High Court was clearly in error in confirming the order of rejection of reference passed by the State Government merely taking note of the designation of then post held by the respondent i.e., Area Soles Executive. As noted earlier determination of this question depends on the types of duties assigned to or discharged by the employee and not merely on the designation of the post held by him. We do not find that the State Government or even the High Court has made any attempt to go into the different types of duties discharged by the respondent with a view to ascertain whether he came within the meaning of Section 2(s) of the Act. The State Government, as noted earlier, merely considered the designation of the post held by him which is extraneous to the matters relevant for the purpose.
Relying on Para 27, he further submitted that, the Apex Court has directed, to Government to refer the dispute raised fey fee appellant including the question whether the appellant is a workman under the Act, to the Industrial Tribunal Labor Court for adjudication. He submitted that, the State Government by referring the alleged designation of the petitioner, has refused to refer the matter by holding that the petitioner is not a workman. This observation of the State Government is not only contrary to the provisions of Section 12 Sub-section 5 of the Industrial Disputes Act, is also contrary to the well settled law.
The learned Sensor Counsel, Sri Kasturi, appearing for the 3rd respondent/Management submitted that power is conferred on the State Government either to refer or reject the reference, if ft finds that, there is no industrial dispute exits or it finds the claimant is not a workman. He relied on the Objection Statement filed and submitted that nature of work assigned to the petitioner clearly shows that he is functioning as supervisor and not as a workman. He also pointed, out that in view of the documents, the decision of the Government is just and appropriate.
He also submitted that, the Government acting u/s 10(1) read with Section 12(5) of the Act has passed the administrative order and not a judicial or quasi-judicial one. Only if it appears from the reasons given that the Government, that it took into account any irrelevant or foreign consideration) then the Court in a given case may interfere. Where the State Government found the petitioner h not a "workman" and refused to make a reference, a writ in the nature of mandamus is not issued. He also relied on two decisions of the Apex Court reported in Prem Kakar Vs. State of Haryana and Another, and submitted that, the Court does not sit in appeal over the order and m not required to consider the propriety or the satisfactory character of the reasons given by the Government. If it appears that, the reason given show that, the appropriate Government has taken into account any consideration irrelevant or foreign, then the Court may in a given case consider for issue of a writ of mandamus. He also relied on another decision reported in The Secretary Indian Tea Association Vs. Ajit Kumar Barat and Others, referring to Paras 5 & 6 submitted that, Government has exercised the administrative function and being an administrative order, it does not require the Government to act as an quasi-judicial body and give elaborate reasons. He also referred to Para 15 of the said judgment, and submitted that the endorsement is issued by the Government, which reads as under:
Having regard to the facts and voluminous evidence sought to be adduced by bath parties, the question whether the appellants am workmen requires detailed investigation of facts. The issue requires detailed examination and can be satisfactorily adjudicated upon only by a Tribunal.
He further submitted that, in view of the endorsement stated supra, the ardor of R3/Management does not call for any interference.
The only question that arises in this writ petition is:
As to whether exercise of duties u/s 12 Sub-section 5 of the Act to reject or to refuse to refer the dispute is without recording or assigning reasons?
Section 12 Sub-section 5 of the I.D. Act confirms the power on the State Government to refuse to refer the dispute. While refusing, the Government is required to record reasons. Section 12 Sub-section 5 requires the Government to record reasons, even though the Government is discharging administrative function, it does not mean that, the Government can refuse the reference without recording the reasons. No doubt, it as not exercising quasi-judicial or judicial power, however that, does not mean it can reject tine reference without even subjective satisfaction. The Government is not required to adjudicate the issue, however, it has to satisfy as regards the existence or non existence of dispute and to consider as to whether issues should be referred or not. Even in case of administrative function as observed by the Apex Court in the matter of Sharad Kumar and Government of NCT of Delhi and Ors. the Apex Court has observed that, determination of the question as to whether the dispute exist or not, as to whether the claimant is a workman or not, depends on nature of various duties, principal duty in particular assigned to or discharged by the employee, not merely on the designation of the post held by him.
Looking into the impugned order, it clearly shows that, the Government except relying to the designation of the petitioner has not considered any other matter. No doubt, the Government has power to reject the reference if it finds that there is no industrial dispute exists or it finds that the person claimed is not a workman. To come to the said conclusion, it should form an opinion, and in order to form an opinion, it has to consider the material, though it need not adjudicate, nor it requires elaborate reasoned order but opinion should be baaed on sound reasoning. The decisions referred to by the Senior Counsel for the 3rd respondent/Management shows that, while considering the question as to whether the issue should be referred or not, the Government is required to assign satisfactory reasons for its conclusion. Even the decision in the case of The Secretary Indian Tea Association Vs. Ajit Kumar Barat and Others, , the Apex Court has observed at Para 6 that "the Government is entitled to go into the questions whether an industrial dispute exists or is apprehended and it will be only a subjective satisfaction on the basis of the material on record and being an administrative order no lis is involved". This observation of the Apex Court clearly shows that, though it is a subjective satisfaction but it must be based on material on record. Section 12(5) of the Act requires an opinion to be formed by the Government. If an opinion is required to be formed by the Government, the said opinion must be sound, based on the issues and reasons. Since the Government has not at all considered the materials placed before it, regarding the question, as to whether the petitioner is a workman or not, the matter requires reconsideration.
In the light of the above said circumstances, the writ petition is allowed and the impugned endorsement Is quashed and the matter is remanded to the Government for reconsideration by considering the material before it and also the parties are entitled to place materials, including the materials placed before the Conciliation Officer and the statement and the counter statement.