Sukhbir Singh vs Union of India and Others

Anil Dev Singh, J.—In this writ petition under Article 226 of the Constitution of India, the petitioner challenges the order of the Central Government refusing to refer the Industrial Disputes raised by the petitioner to the Industrial Tribunal.

The facts giving rise to this writ petition are as follows :

On August 14, 1970 the Syndicate Bank [for short ''Bank''], appointed the petitioner as a temporary attender for a period of two months on a salary of Rs. 92/- with a special allowance of Rs. 7/- and House Rent Allowance of Rs. 11/- per month. Pursuant to the order of appointment, the petitioner join the service of the bank. By a written communication dated January 22, 1971 the Custodian of the bank in suppression of the earlier letter of appointment dated August 14, 1970 informed the petitioner that he had been appointed as a probationary attender to work at Delhi - Mayapuri Branch of the bank form August 17, 1970 on a salary of Rs. 116/-, special allowance of Rs. 10/-, HRA of Rs. 14/- and city compensatory allowance of Rs. 15 per month. According to the said communication the appointment of the petitioner in the first instance was on probation for a period of six months, which could be extended and on the expiration of the period six months or the extended period, as the case may be, the petitioner could be confirmed if his work and conduct were found to be satisfactory. The petitioner was further informed that during the period of probation his services could be terminated by giving him one month''s notice or salary in lieu thereof. On February 16, 1971 the probation of the petitioner was extended for a further period of three months. The memorandum extending the period of probation stated that during this period, the work and conduct of the petitioner will be watched. On May 12, 1971 the period of probation of the petitioner was again extended for a further period of 11 days as he had availed of 11 days extraordinary leave from April 19, 1971 to April 29, 1971. The extended period of probation came to an end on May 27, 1971. Since the probation of the petitioner was not extended nor was he confirmed, his services stood terminated with effect from May 27, 1971. Again on January 25, 1972 the bank once more appointed the petitioner as a probationary attender at the Delhi-Shahdara Branch. But the appointment of the petitioner did not last for long as his services were terminated by the bank on November 10, 1972. It is alleged by the petitioner that a day prior to the said termination order viz. November 9, 1972 his wife sustained burn injuries and on receipt of this information, he applied for leave from November 10, 1972 which was not granted and instead his services were terminated by the Bank, the fourth respondent. Thereafter, the petitioner on February 9, 1973 filed a representation to the Custodian of the Bank against the order of his termination on the ground that the same was unfair, arbitrary and illegal. The petitioner however, did not receive any reply thereto.

On April 25, 1973 the petitioner filed a statement of claim before the Assistant Labour Commissioner in which it was urged that he was entitled to reinstatements with full back wages and continuity of service. In reply the fourth respondent alleged that the performance of the petitioner during the probationary period was not satisfactory; that he was not found suitable to be absorbed in the permanent service of the bank; that the petitioner was also involved in a case of gambling, for which a FIR was lodged against him on December 27, 1971; that in connection with the alleged offence of gambling the petitioner was arrested and them let off bail and that in view of these facts, the services of the petitioner were terminated on November 10, 1972 i.e. before the expiry of the period of probation. By a communication dated 12th /13th June, 1973 the Assistant Labour Commissioner (Central) cum Conciliation Officer u/s 12(4) of the Industrial Disputes Act, 1947 (for short the Act) reported to the Central Government that the dispute could not be resolved and the conciliation proceedings did not fructify in any agreement between the parties. It was also pointed out that the suggestions were made to the parties "for" reference of the dispute for adjudication" under the Code of Discipline or under the Industrial Disputes Act, 1947 or for joint reference of the dispute to adjudication", but the fourth respondents was not agreeable. The report of the Assistant Labour Commissioner (Central) was received by the Government of India on June 13, 1972. The petitioner also by means of a written request asked the Central Government to refer the dispute to the Industrial Tribunal for adjudication. On July 26, 1973 the Government of India rejected the demand of the petitioner for reference of the dispute to the Industrial Tribunal on the ground that the respondent was justified in terminating his service during the probationary period in terms of conditions of his appointment. Aggrieved by the decision of the Central Government, the petitioner filed another representation claiming reference of the dispute to the Industrial Tribunal for adjudication. This representation of the petitioner was also rejected by the Central Government on August 28, 1973. Undaunted by the failure, the petitioner again filed a representation on November 28, 1973. On January 2, 1974 he was informed by the Central Government that his representation was under active consideration. However, on March 5, 1974 the Central Government intimated the petitioner that there was no justification to revise the decision already conveyed to him.

Learned counsel appearing for the petitioner submits that the Central Government was not justified in refusing to make a reference of the dispute to the Industrial Tribunal. He submits that according to Section 12(5) of the Act Appropriate Government was bound to communicate to the parties reasons for not making a reference. He contends that the order dated July 26, 1973 refusing to refer the dispute to the Industrial Tribunal is hardly a speaking order. His further the contention is that the petitioner had also sought the reference on the ground that the action of the fourth respondent was mala fide and the impugned order passed by the Government says nothing about it. This dispute raised by the respondent could only be decided by the Industrial Tribunal, submits the learned counsel. He further canvasses that the Central Government while stating that the termination of the petitioner was justified had decided the dispute of merits which the Central Government was not competent to do u/s 10 or Section 12(5) of the Act.

Learned counsel for the respondent on the other hand submits that the order of the first respondent dated July 26, 1973 does not suffer from any illegality whatsoever. According to the learned counsel the Central Government was justified in coming to the conclusion that the services of the petitioner were rightly terminated during his probation. He also contends that the Central Government had given sufficient reasons for the refusal to refer the dispute to the adjudication of the Industrial Tribunal.

I have considered the respective contentions of the learned counsel for the parties. It is well settled that the Central Government acting u/s 10 or Section 12(5) of the Act has no power to decide the merits of the controversy. The conciliation Officer found that there was a dispute between the parties and attempts to arrive at an agreement between them had failed. In view of this failure he reported the matter to the Central Government. The Central Government refused the make a reference of the dispute to the industrial Tribunal for adjudication on the ground that the fourth respondent was justified in terminating the service of the petitioner, he being on probation.

The question as to whether the services of the petitioner were rightly or wrongly terminated by the fourth respondent is a question which falls within the domain of the Industrial Tribunal being a question which touches the merits of the controversy.

Under Sections 10 and 12(5) the Appropriate Government can only determine whether dispute exists. It has no power to adjudicate the dispute. The power of adjudication is conferred only on the Industrial Tribunal which is competent to render decision on the merits of the controversy between the parties. The Government cannot delve into the merits of the case and encroach upon the adjudicatory power of the Tribunal, while determining the question whether or not the dispute exists for the purpose of making or refusing reference to the Industrial Tribunal. The power to make or refuse reference under the aforesaid provisions does not confer the power to adjudicate. But in exceptional cases on proper examination of the demand of the workman the Government may refuse to make a reference if a stale claim is preferred or if the demand is patently perverse or frivolous.

In the statement of claim of the petitioner dated April 25, 1973 filed before the Conciliation Officer, his various representations and requests for reference of the dispute to the Industrial Tribunal, is as specifically alleged by the petitioner that the termination of his services was made in colourable exercise of power by the respondent and the action was mala fide. The respondent in its comments on the representation of the petitioner filed before the Asst. Labour Commissioner cum Conciliation Officer asserted that the action of the respondent in terminating the services was a bona fide one and was taken in the interest of the bank. It was also averred that the petitioner indulged in gambling and in this regard a FIR was lodged against him on December 27, 1971. Besides, it was asserted that in view of this fact and also having regard to the performance of the petitioner his services were terminated. Considering the respective stands of the parties, it seems to me that a dispute between the parties did exist, which required its adjudication on merits. It was a clear case of the petitioner that his services were terminated when he applied for leave on the ground that his wife had sustained burn injuries and his presence was required beside her. The questions raised by the petitioner before the Central Government in connection with his demand for reference of the dispute for adjudication by the Industrial Tribunal namely, whether the termination order was unfair, arbitrary and illegal, or was actuated by mala fides or was made in colourable exercise of power are questions of fact which can only be decided by the Industrial Tribunal and the Government cannot decide the merits of the controversy. The impugned order dated July 26, 1973 says nothing about the plea of mala fides and the other pleas of the petitioner. This by itself vitiates the order of the Central Government. Moreover, whether the fourth respondent could have considered the alleged incident of gambling, which occurred in December, 1971, for terminating the services of the petitioner when it has re-appointed the petitioner second time on January 25, 1972 despite the said incident, also required consideration.

In the M. P. Irrigation Karmachari Sangh v. State of M. P. and Anr. 1985 2 CLR 10 the Supreme Court observed that the Government should be very slow to attempt an examination of the demand on merits with a view to decline reference. In this regard, it was observed as follows :

"Therefore, while conceding a very limited jurisdiction to the State Government to examine patent frivolousness of the demands, it is to be understood as a rule, that adjudication of demands made by workman should be left to the Tribunal to decide. S. 10 permits appropriate Government to determine whether the dispute exists or is apprehended and then refer it for adjudication on merits. The demarcated functions are [1] reference, [2] adjudication. When a reference is rejected on the specious plea that the Government cannot bear the additional burden, it constitutes adjudication and thereby usurpation of the power of a quasi judicial Tribunal by an administrative authority namely, the Appropriate Government. In our opinion, the reasons given by the State Government to decline reference are beyond the power of the Government under the relevant sections of the Industrial Disputes Act. What the State Government has done in this case is not a prima facie examination of the merits of the question involved. To say that granting of dearness allowance equal to that of the employees of the Central Government would cost additional financial burden on the Government is to make a unilateral decision without necessary evidence and without giving an opportunity to the workmen to rebut this conclusion. This virtually amounts to a final adjudication of the demand itself. The demand can never be characterised as either perverse or frivolous. The conclusion so arrived at robs the employees of an opportunity to place evidence before the Tribunal and to substantiate the reasonableness of the demand."

The appropriate Government, Therefore, is precluded from considering the merits of the dispute while deciding the question whether or not the same is to be referred to the Industrial Tribunal u/s 10(1) or Section 12(5) of the Act, when prima facie the demand for reference of the dispute is neither perverse nor frivolous.

There is another aspect of the matter as well. According to Section 12(5) of the Act, the Appropriate Government, while rejecting the request for reference of the dispute to the Industrial Tribunal is obliged to give reasons. In my view, merely stating that the action of the management in terminating the services of the workman during the probationary period in terms of conditions of service was justified, is not reason enough and falls short of the requirements of Sections 10 and 12(5) of the Act.

Having regard to the above discussion, the order of the first respondent dated July 26, 1973 refusing reference of the dispute to the Industrial Tribunal and its subsequent orders dated August 28, 1973 and March 5, 1974, which were passed on the representation of the petitioner, are erroneous in law.

The writ petition succeeds and accordingly, the orders dated July 26, 1973, August 28, 1973 and March 5, 1974 are hereby quashed. The Central Government is directed to reconsider the matter and pass the order afresh u/s 10 or 12(5) of the Industrial Disputes Act according to law. There will be no order as to costs.